P. v. Rolando V.

Filed 10/5/06 P. v. Rolando V. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County.George G. Lomeli, Judge. Affirmed.

Thomas W. Kielty for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

Following a jury trial, appellant Mario Rolando V. was convicted of crimes involving the sexual abuse of his two adopted daughters. Counts 1 and 2 charged committing a lewd act upon a child under 14, Jacqueline V. (Pen. Code, § 288, subd. (a).)[1] Count 3 charged misdemeanor sexual battery of Linda V. (§ 243.4, subd. (e)(1)). Count 4 was the forcible sexual penetration by a foreign object by force of Linda V. (§ 289, subd.(a)(1)), and count 5 was the forcible rape of Jacqueline. (§ 261, subd. (a)(2).)[2] Appellant was convicted on all counts, and the jury also found true an allegation as to counts 1, 2, 4, and 5 pursuant to sections 667.61, subdivision (c) and 667.61, subdivision (e)(5).

Appellant was sentenced to a total of 30 years to life in prison, 15 years each for counts 4 and 5, with other sentences to be served concurrently. This appeal follows. Concluding there is no prejudicial error, we shall affirm the judgment.

PROCEDURAL HISTORY AND STATEMENT OF FACTS

All the charged offenses occurred on November 24, 2002, at the family home shared by sisters Linda, age 19, and Jacqueline, age 12 (“Jackie”).[3] The sisters did not report the attacks until months later on August 2, 2003. We set forth the history of appellant and his daughters in order to put the charged crimes in context.

Uncharged incidents prior to 2002

Linda and Jackie’s mother married appellant in 1991; Linda was eight years old, and Jackie was a baby. Appellant officially adopted her two daughters and a son.[4] Another daughter, Kimberly, was later born to appellant and Miriam and is not involved in this matter. Appellant, all four children, their mother, and their mother’s brother Alex lived in the same house until October 2002, prior to the charged crimes, when appellant moved out.

Linda testified that when she was nine and her mother was at the hospital giving birth to Kimberly, appellant sexually assaulted her with his penis, both vaginally and anally. Her older brother Alex was asleep in the same bed. Appellant threatened to kill her mother if she told anyone what had happened. Linda believed him because she saw bruises on her mother every day.

Appellant repeated the same conduct two years later when Linda was eleven or twelve. When Linda was about 13 and told him she was going to call the police, appellant said he would beat her up and kill her mother. Appellant had beaten Linda with whatever he could find, including cords from the vacuum or iron. She was scared and did not call the police.

The charged offenses

On November 24, 2002, appellant was no longer living in the house[5] and was not supposed to be there unless his former wife was home. Jackie, Kimberly, and their mother were at a party following a baptism. Linda was not at the party, took a bus home from her job, and went to sleep in her bedroom. Linda was awakened by appellant caressing her face. He touched her left breast underneath her shirt and inserted his finger into her vagina underneath her boxer shorts. She did not fight back because appellant had beaten her up in the past when she resisted.[6] He was “really drunk” and Linda pushed him away. He left Linda’s room and shut the door. Linda, tired and sleepy, then fell asleep.

Linda was asked on cross-examination if she knew Geronimo, apparently her mother’s boyfriend, in August 2003, when she reported the abuse to her mother. An objection was sustained and a motion to strike was granted. At sidebar, defense counsel made an offer of proof that Geronimo became a part of their life as their mother’s boyfriend and the sisters “have made these false accusations . . . to help their mother” in her dating relationship and remove appellant from the scene. The trial court excluded the questioning under Evidence Code section 352 but allowed defense counsel to ask if the sisters were lying and made up the sexual abuse.[7]

Jackie returned from the party with her brother and went to bed. Her mother and Kimberly stayed at the baptism party. Jackie woke up about midnight when appellant carried her to her mother’s queen bed, adjacent to her twin bed.[8] She returned to her bed and appellant again took her into her mother’s bed, where she fell asleep. When Jackie next awoke, appellant’s whole naked body was on top of her. He had removed her underwear. Jacqueline told him “Stop, Daddy” three or four times and unsuccessfully tried to push him away. She asked him what he was doing and told him to stop but was not able to push him off. He told her to “shut up,” covered her mouth with one hand, and held her wrists with his other hand. He kissed her neck and breast, and kept inserting his penis into her vagina. It hurt her as if someone had socked her in the stomach, and she was crying.

When he was done, appellant warned Jackie he would kill her mother if she told anyone what he had done. Like Linda, she had seen bruises on her mother’s body; Jackie had seen appellant beat up her mother, so she believed appellant’s threats.

Jackie experienced vaginal bleeding and pain for about two or three days as a result of the rape. Because of appellant’s threats, she told her mother she had started her menstrual period, which did not actually begin until the following spring. She was afraid that appellant would kill her mother and that his conduct would hurt her little sister, who “really loved” appellant, as Jackie used to love him.

The day after the attacks, Linda tried to talk to Jackie about appellant’s conduct towards Linda, but Jackie did not reveal anything. Nine months later, noticing how sad Jackie looked,[9] Linda told her what appellant had been doing to Linda since she was little. Jackie started crying and told Linda what had happened to her. This was the first time Linda had told anyone about appellant’s past conduct. Jackie was afraid the same thing might happen to her little sister. That night Linda told their mother, who took Jackie to the police[10] and to the hospital for an examination.

The nurse who examined Jackie on August 20, 2003, took a history and performed a physical and a culdoscopic exam, similar to a pelvic exam. Jackie told her that her stepfather “put his dick in my vagina” and that she was afraid he would kill her mother if Jackie told anyone. Only 10 percent of children show injuries that are still visible; Jackie is one of them. The child’s hymen was attenuated, meaning she lost tissue in that area. She also had a partial transection. The injuries were consistent with the rape Jackie described.[11]

A social worker, in testimony challenged on appeal though not objected to in the trial court,[12] stated that she has been licensed since 1983, had seen 10,000 victims of sexual assault, and that about 90 percent of them were abused by someone within their family. She added that about 90 to 95 percent waited a period of time before going to a police station, a hospital, or a district attorney and explained the difficulty for a child to disclose abuse in the household and their feelings of fear and helplessness. She added the importance of virginity in the Latino culture and the effect on children’s behavior following the sexual attack. Moreover, children do not find reporting the attack to the police to be a high priority; they tend to blame themselves and not want to disrupt the family system. Children are commonly threatened with their mother’s death if they disclose the abuse. The fear factor remains when the suspect is still involved with the family and has access to the home even if the perpetrator no longer lives with the victims. The social worker had never heard a false allegation against a father figure; the false accusations usually happen when a teenager wants to avoid trouble for staying out overnight.

Defense counsel asked about the 90 percent figure and clarified it was a family member, not a stranger. According to the witness, the high percentage of familial sexual assaults is “a given.” She testified as an expert and had not interviewed the victims in the case at bench.

Defense

Appellant’s brother-in-law Alex, Miriam’s brother, testified he did not go to the baptismal party and was home asleep. He heard his nephew, Jackie’s brother, come in and heard dogs barking. Alex answered knocking on the door at about 2:00 a.m.; appellant greeted him and he let appellant come in. Alex went to the bathroom, was gone two or three minutes, and appellant was standing in the living room when Alex returned. Alex did not know what appellant did between when he came into the house and when he left. He did not “see anything bad.”

After appellant decided to testify and before he took the stand, the court wanted to “make very clear” that it wanted no reference to the new man of the house. Appellant testified he came to the United States in 1988 from Guatemala and married Miriam when Jackie was a year and a half old and Linda was about eight. He adopted Miriam’s three children and then Kimberly was born.

Appellant moved out of the house three days before Father’s Day in 2002. He lived in his car while working at Zuma Sushi in Malibu, where he had worked for 15 years. He also wanted to be with his wife and see his children.

On November 24, 2002, after dropping off co-workers and playing pool, appellant went over to the house about 2:00 a.m. to surprise Miriam.[13] The locks had been changed. Alex let him in. Miriam was not there so appellant just stayed in the living room after Alex opened the door. Appellant was angry when he went to the house at 2:00 a.m. and Miriam was not home. According to appellant, he and Alex greeted each other, and then appellant left the house in at most three or four minutes.[14]

Before leaving, appellant looked in Jackie’s room, moved her, and asked where her mother is; she did not answer, and he left. He also said “Good-bye gordis (‘chubby’)” to Linda, who was sleeping. Appellant then returned to the house where he was living. He continued to see the family after November 24 apart from the family home. He took the children to school when Miriam asked him to do so. Appellant testified he loved Miriam very much and wanted to get back with her, not rape her daughters.

Appellant found out about the sexual abuse allegations when his wife got a restraining order against him. He then did not visit anymore. Appellant voluntarily went in and spoke to the detective and denied the charges. He denied all the charges at trial saying the “whole case is a lie” and “They’re my daughters. I would be incapable of doing it.” He also denied ever hitting his wife.[15]

CONTENTIONS ON APPEAL

Appellant contends: (1) His right to due process was violated when he was convicted of forcible acts of sexual penetration without sufficient evidence of “force.” (2) The prosecution deprived appellant of his constitutional right to a jury trial by improperly appealing to the jurors’ passions and prejudices. (3) The trial court abused its discretion and deprived appellant of his Sixth and Fourteenth Amendment rights to present a defense when it refused to allow him to cross-examine Linda with information concerning her mother’s boyfriend. (4) Defense counsel was ineffective in failing to object to testimony from social worker Oralia Velasquez that 90 percent of the victims she has counseled were abused by members of their own family.

Respondent argues that substantial evidence supports appellant’s conviction of count 4 and that all but that issue have been waived by failure to object in the trial court. Furthermore, respondent contends there was no error and, should this court decide there was error, there was no prejudice to appellant.

DISCUSSION

1. Substantial evidence supports the conviction on count 4 (forcible act of sexual penetration.)

Appellant contends there is insufficient evidence of “force” to support his conviction of the forcible act of sexual penetration in count 4, involving his digital penetration of Linda’s vagina. Analogizing to People v. Kusumoto (1985) 169 Cal.App.3d 487, and attempting to distinguish People v. Griffin (2004) 33 Cal.4th 1015, 1023, he contends there was no force involved and, when Linda did tell him to stop, he immediately complied and left the room.

“In considering defendant’s claim of insufficiency of the evidence of force necessary to affirm his conviction of forcible rape, we must determine only whether, on the record as a whole, any rational trier of fact could find him guilty beyond a reasonable doubt. [Citation.] We view the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Griffin, supra, 33 Cal.4th 1015,1028; accord People v. Stitely (2005) 35 Cal.4th 514, 542, citing Griffin for the proposition that “rape involves force sufficient ‘to overcome the will of the victim,’ and does not require evidence that such force ‘physically facilitated sexual penetration or prevented the victim from physically resisting her attacker.’”) We note that section 289, subdivision (a)(1), punishes sexual penetration not only when accomplished “against the victim’s will by means of force,” but also by “ violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.”

People v. Kusumoto, supra, 169 Cal.App.3d 487, is distinguishable in many ways. First, the issue decided involved “how to treat the rape-by-object of an unconscious victim.” (Id. at p. 494.) Linda in the case at bench, like the victim in Kusumoto, was asleep; however, Linda awoke to appellant’s caressing her face and was subjected to his digital penetration, in which she did not acquiesce.

Second, Kusumoto placed great weight on the holding in People v. Cicero (1984) 157 Cal.App.3d 465, 474, that the force used in lewd acts by force on a child must be “substantially different from or substantially greater than that necessary to accomplish the lewd act itself.” That portion of Cicero was recently disapproved by our Supreme Court in People v. Griffin, supra, 33 Cal.4th 1015, 1018, as applied to forcible rape cases (§ 261, subd. (a)(2).)[16] In addition, the court in Griffin, supra, 33 Cal.4th 1015, 1029 considered defendant’s prior molestations of the victim to allow the jury to “reasonably infer that by pinning her arms to the floor, defendant was able to achieve penetration on the occasion in questions without [the victim’s] consent before she was able to register her objection.”

Appellant improperly discounts the history of his abuse endured and seen by Linda. He was not supposed to be in the house that night, but she was awakened by appellant caressing her face. When she was younger, he had raped and sodomized her; appellant had beaten her mother and her and had threatened to kill her mother if Linda told what he had done. We conclude that substantial evidence supports the conviction of forcible digital penetration in count 4.

2. Appellant’s failure to object to the prosecution’s argument waives the issue on appeal.

The prosecutor began her opening argument by referring to “The Addams Family” movie and television show, a family outside the norm, including liking to “eat things like tails and eyeballs and things that the rest of society would never eat in a million years.” She then analogized to the case at bench, in remarks appellant contends constitute prosecutorial misconduct: “And similar to that, [appellant], has an appetite that none of us will ever understand, and we can’t even begin to try. And his appetite is for something that is, in our society, completely abhorrent. Our norms, our values are codified, by lawyers, by judges, in what we call the Penal Code. The Penal Code has a bunch of numbers in it. Each of those numbers corresponds to crimes. We codify things that hurt our society and deserve to be -- the reason why you’re here in this trial today.”

“Now, rape is bad enough. If you -- and there are a lot of people that came in here on Monday [during voir dire] and talked about family members, ex-girlfriends, even their own histories where they had suffered rapes. Many of them, as you know, did not report. And that’s bad enough. But imagine the scars that are left when the person that rapes you was the parent figure that is supposed to protect you, the one that’s supposed to cherish you, and the one that is supposed to make you feel like you are the most important person in the world and the most valued person in the world.

“Now, with modern technology, as you heard in this trial, some of those scars can be visible to medical professionals, but most of those scars are going to be internal scars on their souls, in their heart, and in their minds that every day, at school, at work, the first date, the first dance, the first relationship, a wedding, a husband, a boyfriend, a father figure, that scar that . . . prevents those girls from ever really, essentially, experiencing joy. It prevents them from ever being able to trust any human relationship for the rest of their life. That is a terrible thing to take from someone, and that is something that in our society is against the law.” (Italics added.) There was no objection to this argument.[17]

The prosecutor’s opening argument closed with “That tear is there for a reason. It’s there to make you feel totally and completely comfortable about convicting this man.” Appellant also refers to the prosecutor’s closing argument, in which she stated “What those girls did took a lot of courage. And truth in our world deserves to be rewarded.” She also told the jury that if “you go back to that deliberation room and even one of you is still not convinced, even one of you is still thinking about giving him the benefit of the doubt, then the rest of you, the other ten of you, or the other 11 of you need to turn to that one person and say, ‘If you’re really thinking that way, then how do you explain the medical evidence? How do you explain everything that we heard? How do you explain that they couldn’t really impeach them?’ “

Appellant’s failure to object constitutes a waiver of the prosecutorial misconduct issue. In order to preserve an appellate claim of prosecutorial misconduct, a defendant must make a timely objection at trial and request an admonition; otherwise, a claim is reviewable only if an admonition would not have cured the harm caused by the misconduct. (People v. Wilson (2005) 36 Cal.4th 309, 337; People v. Boyette (2002) 29 Cal. 4th 381, 432-433.)

Neither counsel was shy about objecting at trial, and the trial court gave appropriate limiting instructions. We need not decide if the comments constitute prosecutorial misconduct. Even if they do, any error could have been cured by an admonition; an objection would not have been futile. (People v. Wilson (2005) 36 Cal.4th 309, 337; People v. Dennis (1998) 17 Cal.4th 468, 521.) There were tactical reasons defense counsel may have withheld objections and, in some cases, defense counsel used part of the prosecution’s argument to appellant’s advantage.[18]

3. If error, there was no prejudice in the trial court’s refusal to allow appellant to cross-examine Linda with information concerning her mother’s boyfriend.

Linda was asked on cross-examination if she knew Geronimo, apparently her mother’s boyfriend, in August 2003, when she reported the abuse to her mother. An objection was sustained and a motion to strike was granted.[19] At sidebar, defense counsel made an offer of proof that Geronimo became a part of their life as their mother’s boyfriend and the sisters “have made these false accusations . . . to help their mother” in her dating relationship and remove appellant from the scene. The trial court excluded the questioning under Evidence Code section 352 but allowed defense counsel to ask if the sisters were lying and made up the sexual abuse.

After the People rested and outside the presence of the jury, defense counsel again raised the “issue of Geronimo.” Defense counsel stated that Mother’s boyfriend or his agents may have injured appellant in July 2002, before the charged incident, by taking appellant by force and hitting him over the head with a blunt instrument and putting him in the trunk of a car. Counsel claimed that “he would go to show that the girls have a motive to make up a story, make the false allegations, because they want to go along with their mother’s boyfriend and have that family.” The court denied the motion.

Appellant was asked on cross-examination about his position of importance as the father of the family and was asked if he was the only father Jackie ever knew. He replied “Until -- until their mother and the man who is living with them told them that I am

not --.” The prosecution objected and moved to strike as nonresponsive; the court replied “You’ve asked the question, the answer will remain, but let’s move on to another area.”

Defense counsel’s closing argument, in which she contended that Linda and Jackie were lying and appellant was telling the truth, ended with: “But there’s something else that’s going on here that we’re not privy to. Their relationship. There’s something going on, but it has nothing to do with the children. The children have placed themselves in a position of protecting the mother, and that’s the answer.” (Italics added.)

Thus, the essence of the argument appellant hoped to make with evidence about Geronimo’s relationship with the victims’ mother was in fact made to the jury. Evidence was admitted that another man was living with Miriam and defense counsel argued that the children were protecting their mother. Error if any in excluding more detailed evidence about Geronimo was not prejudicial.

4. The issue of ineffective assistance of counsel for failing to object to the social worker’s testimony that 90 percent of the victims she has counseled were abused by members of their own family is more appropriately raised in a petition for writ of habeas corpus.

Appellant contends that defense counsel was ineffective in failing to object to the social worker’s testimony about the large percentage of victims abused by members of their own families. He contends the testimony constituted inadmissible evidence of mathematical odds. (See People v. Collins (1968) 68 Cal.2d 319, 328, 332 [“the court erred in admitting over defendant’s objection the evidence pertaining to the mathematical theory of probability and in denying defendant’s motion to strike such evidence”].)

As our Supreme Court stated in People v. Carter, supra, 30 Cal.4th 1166, 1211, “In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 [62 Cal.Rptr.2d 437, 933 P.2d 1134].) Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus. (Id. at pp. 266-267.)”

The evidence in the case at bench was based on the actual experience of the expert witness, not the speculative statistical analysis used in People v. Collins, supra, 68 Cal.2d 319. Moreover, appellant used the testimony to his own advantage, which without more can indicate a tactical choice by defense counsel that the testimony was useful to appellant. In closing argument, defense counsel emphasized the social worker’s testimony that she “never” had a false allegation case in her 22-year career. Defense counsel emphasized the “logical fallacy” in the testimony that 90 percent of children showed no sign of abuse, so for the 10 percent that do, “by God, it must have happened.” The information now challenged, combined with the testimony the witness “never” had a false allegation, was effectively used to discredit the witness’s overall credibility and expertise. A petition for writ of habeas corpus is thus the more appropriate method of review.

DISPOSITON

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

RUBIN, J.

FLIER, J.

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[1] All further statutory references are to the Penal Code.

[2] Section 289, subdivision (a)(1), punishes “[a]ny person who commits an act of sexual penetration when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.”

Section 261, subdivision (a)(2), defines rape as “an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: . . . Where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.”

[3] We refer to the victims and their mother, Miriam, by their first names because of a shared surname. Jacqueline was referred to as “Jackie” throughout the trial. No disrespect is intended.

[4] Mother had not told Jackie that appellant was her adoptive father until after this incident. Jackie called him “Dad”; they shared the same surname, and she thought he was her biological father.

[5] According to Linda, neither she nor the “kids” saw him between when he moved out and November 24.

[6] Linda testified on rebuttal that she said “No, don’t do this” when he inserted his finger in her vagina; she pushed him away, and he left.

[7] Asked directly is she ever lies, Linda answered affirmatively. She testified she was “always angry at him [appellant]” for what he did to her.

[8] Mother slept with Kimberly in the queen sized bed.

[9] After the incident, Jackie did not feel good about herself and her school grades went down.

[10] Linda did not go to the police or the hospital. She did not want to talk to male police officers, was afraid she would be laughed at, and was scared and nervous about coming to court.

[11] Jackie told the examiner that appellant tried to rape her older sister when she was 14 but Linda slapped him and he left her alone.

[12] The social worker was the first witness to testify. The only objection to that line of questioning was that it was narrative.

[13] On redirect, he testified he had gone to a bar to play pool and had some beer.

[14] The detective who interviewed appellant testified in rebuttal that appellant was cooperative. Appellant told the detective he went to the house to reconcile with Miriam, entered with his own key, and was in the house about five to ten minutes. Appellant also told the detective that the door locks had been changed.

[15] Called in rebuttal, Miriam testified appellant physically struck her on her chest, arms and back during their 12-year marriage. The beatings, which left bruises seen by her children, usually occurred when he came home drunk. The court would not admit photographs of her bruises and sustained objections to questions asking what the subject of their fights were before and after appellant left the house.

[16] Appellant argues that the new rule in Griffin applied exclusively to the crime of rape and has been extended only to forcible oral copulation under section 269, subdivision (a)(4). (See People v. Guido (2005) 125 Cal.App.4th 566, 575-576.) We see no reason to deny application of the analysis in Griffin and Guido to the crime of forcible digital penetration.

[17] Indeed, when defense counsel started arguing, she acknowledged that society is “deathly afraid of predator child molesters” and that the prosecutor “needs to foster this atmosphere of fear in order to get prosecutions.”

[18] Claims of ineffective assistance of counsel are more appropriately litigated in a petition for writ of habeas corpus. (People v. Lucero (2000) 23 Cal.4th 692, 728 -729 [“Because the appellate record ordinarily does not show the reasons for defense counsel’s actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, not on appeal”]; accord People v. Carter (2003) 30 Cal.4th 1166, 1211, citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

[19] There was no objection at trial based on the federal constitutional grounds raised on appeal. We reject the constitutional arguments because no objection on these grounds was raised below. It is “ ‘the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.’ “ (People v. Raley (1992) 2 Cal.4th 870, 892.) Moreover, as we discuss, exclusion of the evidence was not prejudicial.