P. v. Kep

Filed 8/29/07 P. v. Kep CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

A jury convicted defendant Virath Kep of seven counts of lewd and lascivious acts with a child under age 14 (Pen. Code,  288, subd. (a)‑‑counts 1 through 7)^[1]and found true allegations that he engaged in substantial sexual conduct in the commission of counts 2 and 4 through 7 ( 1203.066, subd. (a)(8)). He was sentenced to state prison for 18 years.

On appeal, defendant contends the evidence supporting the convictions is insufficient and unreliable in violation of his federal due process rights. We shall affirm the judgment.

FACTUAL BACKGROUND

Viewed in the light most favorable to the judgment (Peoplev.Carpenter (1997) 15 Cal.4th 312, 387), the evidence is as follows:

Prosecution case-in-chief

The victim, N.D., was born in May 1995 and is the eldest of P.S.s four children, all girls. P.S. has known defendant since elementary school. He is the boyfriend of her sister, L.S. Defendant and L.S. have been together for approximately four or five years.

In 1997, when N.D. was two years old, P.S. and her boyfriend moved from Stockton to her aunts residence in Rhode Island. N.D. and her sister joined them there in 1998.

L.S. came to Rhode Island with defendant in approximately 1999 or 2000. They lived with P.S. and her family for approximately six to 12 months. When P.S. worked, L.S. or whoever was home would watch N.D. Defendant and L.S. later moved to their own apartment in the next building a couple of feet away. They continued to have frequent contact with P.S. and her family.

Eventually, P.S. and her boyfriend left Rhode Island and moved to Attleboro, Massachusetts, about 15 minutes away. They lived there for approximately three months to a year. Several relatives, including P.S.s two sisters, lived with them off and on.

In the summer of 2002, L.S. and defendant returned to Stockton. N.D. and her sisters returned in January 2003. P.S. and her boyfriend joined them one to two months later. They lived with approximately 20 other people including P.S.s mother, stepfather, sister, brother and stepbrothers in an apartment down the street from L.S. and defendant.

Approximately two years prior to trial, P.S. and her children moved to another apartment at an adjacent complex. P.S.s mother, brother, two sisters and boyfriend lived with them.

Once they returned to Stockton, P.S. and her family had contact with L.S. and defendant every day. They met at places such as the park, defendants house, P.S.s mothers house, or a relatives house. They would also eat meals together. N.D. and her sisters slept at defendants house. At times while P.S. was out, defendant and L.S. babysat N.D. and her sisters.

At the time of trial, N.D. was 10 years old and in the fifth grade. She testified that she knew why she was in court and that she did not want to be there. She knew that it was important, but she did not want to tell the jury why she was testifying. She appeared to be too nervous to use the words penis and vagina. She was very reluctant to answer questions regarding where defendant touched her and where she touched him. She sometimes refused to state which body parts he had touched, even refusing, at times, to give yes or no answers. She admitted that she did not want to say what he had done to her. She never told P.S. what defendant was doing to her because she thought she had done something wrong and was scared and afraid that P.S. would get mad. She did not want to do anything to defendant.

N.D. testified that defendant began molesting her when they were living in Rhode Island. She reiterated that she did not want to talk about what he had done to her, and that it was difficult and embarrassing for her to do so. In Rhode Island, defendant would touch N.D.s vagina with his hand. When they were alone together, he would kiss her on the lips. He kissed her more than five times, but she was unsure whether it was more than 10 times. He also had her put her mouth on his penis.

After N.D. returned to Stockton, she would go to defendants residence to play games on the computer in his bedroom. While they were in his room together, he would touch the clothing covering her vagina (count 1). She would ask him to stop, but he would not comply. This occurred more than five times but less than 10 times. Sometimes defendants three-year-old daughter would be present watching television.

At defendants house in Stockton, defendant performed more than four acts of oral copulation on N.D. (counts 2, 4 and 5). He pulled down her pants and underwear and placed his mouth on her vagina. She could feel his tongue on her vagina.

N.D. testified that defendant frequently visited at her most recent residence in Stockton. When he was alone with her, he would place his hand on the clothing covering her vagina (count 3). He would move his hand and the motion would hurt her. She tried unsuccessfully to move his hand away. She repeatedly told him to stop, but he would not comply.

After first stating that she did not want to say, N.D. testified that defendant made her place her mouth on his penis (count 6). This occurred one to five times, always in defendants bedroom.

N.D. first testified that defendants penis never touched her vagina. When the prosecutor reminded her of her interview with Bea Gomez at the Child Advocacy Center, N.D. stated that she did not remember having told Gomez about those parts being touched.

N.D. later testified that defendant had put his penis in her vagina (count 7). She explained that when she was approximately nine years old at her most recent residence, they had sexual intercourse in her bedroom. He entered the room alone while she was sleeping during the night. He got on top of her while she was under the covers. Then he took down the covers and took off his pants. While she was lying on her back, he got on top of her and pulled down her pants. Although she first said that his penis was on top of her vagina, she later corrected herself and stated that his penis was inside her vagina. She stated that his whole body was moving on top of her. During the incident he said to her, I know you like it. She saw a white substance come out of his penis. The substance landed on her bed and was wet to the touch. While this was happening her aunts, Su. and So., came into the room. Defendant jumped off of N.D. and told the aunts that he was looking for a remote control.

David Love, the executive director of Valley Community Counseling Services, testified for the prosecution. The court deemed Love an expert on Child Abuse Accommodation Syndrome. Love testified that the syndrome has several elements: secrecy, helplessness, entrapment and accommodation, delayed or unconvincing disclosure, and retraction.

Stockton Police Detective Craig Takeda testified that he was assigned to investigate this case on August 30, 2005. He contacted P.S. and asked her to meet with him at the Child Advocacy Center, but she never complied. Eventually, on November 8, 2005, Takeda contacted N.D. at her school. Because N.D. was still having contact with defendant, she was taken into protective custody.

N.D. was transported to the Child Advocacy Center where she was interviewed by Bea Gomez with Detective Takeda observing. A videotape of the interview was played for the jury.

During the interview, N.D. stated that defendant, her uncle, started doing things to her in Rhode Island when she was approximately two years old. The first time something happened, N.D. was sleeping at defendants house when she felt somebody on top of her and awoke to find defendant lying on top of her. He was kissing her on the lips and touching her vagina with his hand. He had unzipped her zipper but had not touched her on the skin. His tongue touched her vagina and his hand touched her butt.

When N.D. lived in Rhode Island, defendant took her by the arm and made her hand touch his penis. His hands touched N.D.s vagina more than five times. His penis touched and went inside her vagina more than five times. While he was on top of her and his penis was touching her vagina, she saw something white coming out of his penis. He made her touch his nipples approximately five times. He would take her hands and move them on his nipples.

In Stockton, defendant continued to do the same things. He molested N.D. at his house and at her house. One time at her house she saw sperm come out of his penis. The most recent incident was in December 2004. While she was watching television at her residence he got on top of her, started kissing her and grabbed her butt. Since she returned to Stockton, he has touched her with his penis 10 to 15 times and has made her hand touch his penis approximately 15 times. Her aunts told her not to report the molestations. Defendant gave N.D. two dollars to have sex with him. She refused to do so.

Detective Takeda interviewed defendant on August 30, 2005. He confirmed that N.D. was his niece and that there was a period of time when he, his girlfriend, N.D. and her mother all lived in the same home in Rhode Island. He denied touching N.D.s private parts but acknowledged that there were several times when he, his girlfriend, N.D., her sisters and his children would all sleep in one bed. Defendant confirmed that, approximately two years previously, his girlfriend confronted him and asked if he had placed his hand or other body part on N.D.s vagina. Defendant responded that he did not touch N.D. but believed that his daughter or one of N.D.s sisters touched her private area.

Defendant told Detective Takeda that N.D. misunderstood some of the touching that he was doing. When asked whether his penis had gone inside her, defendant replied, I dont remember. He stated his memory might have been impaired because he had been smoking a lot of marijuana and had used Ecstasy. He speculated that N.D. might have felt his penis while he was hugging her in bed and misunderstood his intention. Alternatively, his penis might have accidentally come out of his boxer shorts and touched her while they were cuddling. He recalled an incident in which he hugged her in bed and pulled her closer to him, during which his penis could have gone between her legs. Defendant noted that N.D. once saw him naked when he emerged from the shower and asked for a towel.

Jennifer Griswold, a pediatric nurse practitioner, performed physical and genital examinations of N.D. N.D. reported that she had a sore throat, and Griswold asked whether anyone had put anything in her mouth. N.D. said yes, looked away from Griswold, and pointed to her crotch when asked what had been put in her mouth.

Griswold observed a notch in the edge of N.D.s hymen. The notch signified that the hymen had been torn and had healed. Griswold could not determine the age of the notch. The injury made her highly suspicious of sexual abuse.

Defense

Defendant testified on his own behalf. He acknowledged that he and L.S. moved from Stockton to Rhode Island in approximately November 2000. They lived with P.S. and defendant spent the first month looking for work. During that month he and L.S. babysat and played with N.D.

Once he found employment, defendant was away from the residence from 2:00 p.m. to midnight. He held this schedule for four months. N.D. would never be awake when he returned from work. However, defendant continued to watch N.D. on the weekends.

After four months, defendant and L.S. moved out of P.S.s residence following an argument with P.S. about them babysitting her children. After they moved out, defendant was never asked to babysit N.D. again.

Defendant saw N.D. only on Saturdays and Sundays, because he did not work those days. L.S. occasionally babysat P.S.s children, but defendant no longer did.

In Rhode Island, defendant kissed N.D., but only on the cheek. He occasionally wrestled with her at P.S.s house, but it did not continue at his own apartment. N.D. occasionally visited defendants apartment with a sister or a friend, but she never came alone.

Defendant and L.S. returned to California at the end of 2001. He saw N.D. in Stockton sometime in January 2003. In Stockton, he never took her any place alone. In April 2004, he bought a computer that eventually was set up in the bedroom he shared with L.S. N.D. would visit the apartment during the day and play on the computer. Defendant admitted that he would be alone with N.D. in the bedroom when L.S. would leave for two to five minutes. He could not remember how many times they were alone together in the bedroom.

When N.D. spent the night at defendants residence, she would sleep in the living room or defendants room. Defendant had two beds, one for himself and L.S. and one for his child. N.D. would sleep on the bed with the child. L.S. always slept in the room with them.

Defendant testified that he never placed his mouth on N.D.s vagina, never placed his finger in her vagina, never kissed her on her lips, never entered her room while she was in the room alone, never got on top of her, and never placed his penis in her vagina. He denied that N.D.s two aunts ever walked in on him while he was with N.D. alone.

DISCUSSION

Defendant contends the judgment of conviction violates his federal due process rights and must be set aside because the evidence against him was insufficient and unreliable. We are not persuaded.

To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole. (Peoplev.Carpenter, supra, 15 Cal.4th at p. 387, quoting Peoplev.Johnson (1993) 6 Cal.4th 1, 38; see Jacksonv.Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].)

Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact. (Evid. Code,

 411; see People v. Cuevas (1995) 12 Cal.4th 252, 262; People v. Scott (2002) 100 Cal.App.4th 1060, 1064.)

No statutory requirement of additional evidence is operative in this case. Nor is there any claim that N.D. is somehow unentitled to full credit. (People v. Cuevas, supra, 12 Cal.4th at p. 262.) As recounted in the statement of facts, N.D. took the stand and ultimately testified as to all seven counts of lewd and lascivious acts. Defendant does not contend that her testimony was insufficient as to any particular element of any particular count. Rather, he claims the testimony as a whole was not believable because the child witness encountered myriad difficulties while testifying. We disagree.

Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. (People v. Barnes (1986) 42 Cal.3d 284, 306 (Barnes); see People v. Cudjo (1993) 6 Cal.4th 585, 608-609; see also People v. Lease (1961) 198 Cal.App.2d 383, 386.)

Defendant does not claim his commission of any of the seven counts was physical[ly] impossib[le]. (Barnes, supra, 42 Cal.3d at p. 306.) Nor does he claim the falsity of any of N.D.s allegations is apparent without resorting to inferences or deductions. (Ibid.)

Rather, defendant asks us to infer the falsity of N.D.s testimony from the facts that she first didnt want to describe where on [defendant] she touched; then didnt want to describe what part of her he touched; sometimes would not give the desired response, but would indicate I dont want to say; once refused to tell the prosecutor what defendant had done with his hand when he would touch her; once denied that he had touched her private area while her clothes were not on; momentarily refused to answer questions and indicated that she need[ed] a minute; later stated that she did not want to tell the prosecutor what had happened when defendant entered her room; and still later indicated that she did not want to say what defendant had done with his hand when he touched her.

Defendant further suggests that we infer falsity from the fact that the prosecutor diverted to off-track questions about holding hands and hugging, and resorted to suggestive questioning before N.D. agreed that defendant had touched her punannie [sic]. In another incident, the prosecutor assertedly coax[ed] N.D. to change her testimony, from a denial that she had copulated defendants penis more than once to an acknowledgment that there was [m]ore than one time. In yet another incident, N.D. first denied that defendant had placed his mouth on her vagina, and then remembered that defendants mouth had touched her private part. Still later, N.D. claimed that she and defendant never had sexual intercourse and then went on to testify that they had done so.

We are not at liberty to infer falsity from the foregoing portions of N.D.s testimony. (Barnes, supra, 42 Cal.3d at p. 306; see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) It was the exclusive province of the jury to consider the claimed contradictions and to determine the credibility of N.D. and the truth or falsity of the facts upon which that determination depended. (Barnes, supra, 42 Cal.3d at p. 306.) Defendants suggestion that the inherently improbable testimony rule, as described in People v. Lease, supra, 198 Cal.App.2d 383, 385-386, should not govern our review has no merit.

The jury could conclude that N.D. was afraid of testifying and embarrassed about the subject matter of her testimony. The jury could perceive that, when N.D. refused to answer questions, the prosecutor adjusted her questioning to prevent N.D. from becoming more embarrassed or more withdrawn. At times, the prosecutor refreshed N.D.s recollection with her prior statements to Bea Gomez at the Child Advocacy Center. Defendant does not dispute that a witness may have recollection refreshed by a previous statement. (Evid. Code,  771.) The jury was not required to deduce that N.D.s testimony was false or unreliable.

Defendant contends he was denied due process, as guaranteed by the Fourteenth Amendment, because the evidence against him is equivocal and lacks substantial probative value. In short, he claims he was denied due process because the evidence supporting his convictions was not substantial. Having rejected the substantial evidence claim, we necessarily reject the due process claim as well.

DISPOSITION

The judgment is affirmed.

BUTZ , J.

We concur:

HULL, Acting P. J.

ROBIE , J.

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^[1] Undesignated statutory references are to the Penal Code.