P. v. Saechao

Filed 8/28/07 P. v. Saechao 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

A jury convicted defendant Liew Yoon Saechao of three counts of forciblelewd and lascivious acts upon his 11-year-old daughter Hi.L. (Pen. Code^[1], 288, subd. (b)(1); counts I, II & III), three counts of lewd and lascivious acts upon Hi.L. ( 288, subd. (a); counts IV, V & VI), and two counts of lewd and lascivious acts upon his five-year-old daughter, Ha.L. (counts VII & VIII). The jury found that two acts involving Hi.L. had occurred on different occasions than the remaining acts involving Hi.L., and that one count involving Ha.L. had occurred on a different occasion than the other act involving Ha.L. The jury found that defendant committed lewd acts against two victims under age 14 within the meaning of section 667.61, subdivisions (b) and (e)(5).

Defendant was sentenced to state prison for a determinate term of 12 years (the six-year middle term on count VII plus a fully consecutive six-year term on count I), plus an indeterminate term of 45 years to life (three consecutive terms of 15 years to life) on counts II, III and VIII.

On appeal, defendant contends (1) evidence of his prior misdemeanor conduct was erroneously admitted for impeachment, and (2) his consecutive and fully consecutive sentences were imposed in violation of Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856]. We shall affirm the judgment.

FACTS

Prosecution case-in-chief

Defendant married M.S. in 1992 when he was 16 years old and she was 14 years old. They had a cultural wedding ceremony, which was recognized within their Mien culture, but they did not have a legal state marriage. The couple proceeded to have three daughters together: Hi.L., born in November 1992; K.L., born in April 1995; and Ha.L., born in August 1999.

In May 2003, the family relocated from Corning to a two-bedroom apartment in Citrus Heights. The parents and the youngest daughter shared the master bedroom, and the two older daughters shared the other bedroom. M.S. worked nights and defendant, who was not employed, watched the girls while she was away.

In 2004, the parents marriage kind of became distant, which M.S. attributed to defendants lack of employment. They had previously discussed ending their marriage, which in the Mien culture requires the consent of both sets of parents and other family members. In a lot of cases, something bad or very terrible has to happen in order for a marriage to be dissolved.

In May 2004, defendant drove to Redding with the two older daughters to pick up the youngest daughter who had been staying with his parents. The three girls spent the night at their grandparents home while defendant visited friends. He returned to his parents home at 5:00 a.m. the next morning and went to bed. That afternoon, defendant and the girls returned home.

Later that day, Ha.L. complained to M.S. [t]hat her butt hurt.^[2] M.S. observed Ha.L. scratching her vaginal area. M.S. undressed Ha.L. and saw a spot of dry blood, about the size of a quarter, on her panties. M.S. asked defendant and the older daughters if they knew of anything happening to Ha.L., but none of them knew. M.S. visually inspected Ha.L.s vaginal area and saw nothing unusual. She bathed Ha.L. and stored the panties in the pocket of her bathrobe. M.S. telephoned defendants mother to inquire about the blood and was told that defendant had slept in the same bedroom as his three children.

The next morning, Hi.L. told M.S. she thought she knew what happened. Hi.L. said that defendant might have done it, because he had also done it to her. Upon questioning, an apparently scared Hi.L. explained that defendant had put his penis in her; she had seen [w]hite stuff come out of his penis; he had done this three times; the first time was in January 2004 and the last was in April 2004; and she had bled the day after the first incident. Hi.L. started to cry as she related this information to her mother.

M.S. was very shaken by the information she had been told. The next day, she took Hi.L. and Ha.L. to a Roseville hospital. Citrus Heights Police Officers Barbara West and Carol Mims responded to the hospitals call of suspected child abuse. Mims spoke to Hi.L., who explained what defendant had done to her.

Officer West spoke with Ha.L., who asked whether people go to a hospital only when theyre hurt. Ha.L. told West that her butt hurt[], because Dad hurt my butt. She explained that he hurt her with his hand, and she mimicked it by rubbing her hand up and down the front of her shorts in the pubic area.

The girls were placed in protective custody, and defendant was arrested later that day. M.S. returned to the apartment and gave Ha.L.s panties to a detective. The detective observed an apparent blood stain about the size of a quarter. The stain tested positive for blood.

Before they were placed in foster care, the girls were examined at the U.C. Davis Child and Adolescent Abuse Resource and Evaluation Center. Cathy Boyle, a pediatric nurse practitioner, conducted a general physical examination and a colposcopic examination of Hi.L. Boyle examined Hi.L.s private parts and became concerned that she had possible injuries from a penetrating injury . . . . Using the colposcope, Boyle observed areas of narrowing in the posterial [sic] part of her hymenal rim, which Boyle believed could be healed injuries. Boyle also examined Ha.L., but she did not use the colposcope and did not observe any irregularities.

The next day, Hi.L. and Ha.L. gave videotaped interviews at the medical center.

After the girls were returned to M.A.s custody, she brought them back to U.C. Davis for further examination by Boyle. In examining Hi.L., Boyle observed persistent narrowing in two locations on her hymen. Boyle believed these could be healed injuries. She opined that child abuse was highly suspected. After reviewing photographs of the examination with a team of professionals, Boyle concluded that the physical findings could be consistent with a healed injury.

Boyle reexamined Ha.L., and this time she used the colposcope. She observed various irregularities to Ha.L.s hymen. If the irregularities resulted from an injury, that injury could have been the source of blood observed on Ha.L.s panties.

Hi.L., who was 12 years old at the time of trial, described in detail the sexual acts that defendant had committed upon her. Ha.L., who was five years old at the time of trial, testified that defendant had touched her in a way that wasnt okay.

Defense

Dr. James Crawford, a pediatrician and the medical director of the Center for Child Protection at Childrens Hospital in Oakland, testified for the defense as an expert in the examination for, and identification of, sexual assault of children. Dr. Crawford reviewed the medical records and photographs from the examinations of Hi.L. and Ha.L.

Dr. Crawford deemed the two areas of Hi.L.s hymen that had concerned Cathy Boyle to be superficial notches, which are seen as often in children who have not been sexually assaulted as in those who have been. Thus, the notches offer no insight into whether the child has been injured in the past.

Dr. Crawford agreed that the area of Ha.L.s hymen that had concerned Cathy Boyle was a possible defect, but he could not say for sure whether there was an indentation at that location. Even if there was one, it would not offer insight into whether there had been a prior injury, because indentations in that area of the hymen are frequently found in children who have not been abused.

Dr. Crawford testified that blood on underwear is not that uncommon in pediatrics. It may result from several causes unrelated to child abuse.

Defendants mother testified that, on the days of their visit, he did not sleep with the girls and was never alone with Ha.L.

Defendants mother advised M.S. that Ha.L. and her cousin P., who lived with the mother at the time of Ha.L.s visit, would wear each others clothes. P. was having problems with milk and was experiencing a bit of rectal bleeding.

Defendant testified that, prior to the present incident, M.S. had attempted on several occasions to take their daughters and leave him. M.S. had expressed that she wanted a divorce, a sentiment that defendant did not share. Defendant explained that a spouses conviction for molesting his children would assist in obtaining a divorce within the Mien culture.

Defendant testified that, during the time the family lived in Citrus Heights, Hi.L. had not gotten along with him because he had pressured her, as the oldest child, to perform a lot of chores. Hi.L. had lied to her parents a lot of times, and she tended to hold a grudge.

Regarding the trip to Redding, defendant testified that he did not sleep in the bedroom with the girls.

Defendant testified that the blood-spotted panties belonged to a member of the extended family and did not belong to Ha.L.

Regarding Hi.L.s knowledge of semen, defendant testified that Hi.L. had previously walked in on him and M.S. while they were engaged in sex and had seen him ejaculate on M.S.s stomach. On another occasion, Hi.L. had accidentally played a portion of an R-rated movie in defendants DVD player.

Defendants sister testified that in January or February 2004, Hi.L. had indicated to her that she had seen her parents video of naked people and what they do.

Dr. Kevin Coulter, a professor of pediatrics at the University of California Davis Medical Center and the medical director of its Child and Adolescent Abuse Resource and Evaluation Center, testified that a new classification scale for sexual abuse had been instituted in late 2004, subsequent to Boyles examinations of the girls in this case. Dr. Coulter reviewed the photographs from Ha.L.s examination and concluded, using the new scale, that her examination was normal. Dr. Coulter opined that the photographs of Hi.L. were not definitive evidence, but supportive of a disclosure of sexual abuse. He acknowledged that it was a close call and that experts could disagree regarding that finding.

DISCUSSION

I

Defendant contends the trial court abused its discretion when it allowed defendant to be impeached with his prior misdemeanor conduct. He claims the error was prejudicial because credibility was the only issue for the jury to decide. We are not persuaded.

Background

The trial court heard arguments on whether defendant could be impeached with conduct underlying his two 1995 misdemeanor convictions for second degree burglary. ( 459.) Defense counsel argued that, under Evidence Code section 352, the conduct was more prejudicial than probative.^[3]

The trial court responded that the convictions are a little bit old, they are getting out there. [] . . . [] They are a little over ten years old but I think theyre still in the ball park. After the prosecutor argued in favor of admission, the court responded: Auto theft is classic moral turpitude involving the element of dishonesty. [] Now, as I stated, the only thing that makes them a little bit questionable is their age. But the fact there were two incidents rather than one shows a pattern of conduct. And the jury can weigh and consider the age of the convictions and give it less weight if they find the remote nature of the offenses are so far out there they should not attach any importance to them. [] But I believe the People are entitled to use them to impeach the defendant given the fact that the Peoples case is made up of young, vulnerable girls whose credibility is likewise at stake and credibility is central to the jurys ascertainment of truth in this case. [] So that being the case, I am finding them more probative than prejudicial. That is given the fact that credibility is key, there are no percipient witnesses to these events other than the defendant and the alleged victims themselves, if . . . the incidents occurred, their credibility is central to the case. So credibility is more at stake than would otherwise be the case.

The trial court inquired whether defendant intended to testify, and defense counsel replied that the decision would be made following presentation of the prosecution case. The court then elaborated on the reasons for its ruling:

Well, I do find that the events, that is the two offenses, involve the element of dishonesty, they are not remote to the present offense, they are dissimilar to the current charges, all of these criteria under 352 warrant their admission. The defendant has not indicated an intention to testify, so I am treating that criteria as neutral. The two convictions are more probative than a single conviction because they show a pattern of conduct, albeit all in the same year, 1995, but shows purposeful conduct that is more probative than a single incident. Accordingly, both convictions can be used by the prosecution.

Defendant testified on his own behalf and admitted that in 1994 he had pleaded no contest to two misdemeanor counts of auto burglary. On cross-examination, it was clarified that he had suffered the convictions on March 1 and May 17, 1995. Defendant also acknowledged a couple D.U.I.s back in 97 and 98.

The jury was instructed with CALJIC Nos. 2.20 and 2.23.1 on the proper use of misdemeanor conduct for impeachment.

Analysis

Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.] [Citation.] (Peoplev.Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

In exercising its discretion, the trial court considered four factors identified by the California Supreme Court in People v. Beagle (1972) 6 Cal.3d 441, 453: (1) whether the prior conviction reflects adversely on an individuals honesty or veracity; (2) the nearness or remoteness in time of a prior conviction; (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of the impeachment by prior convictions. (See People v. Mendoza (2000) 78 Cal.App.4th 918, 925.)

Defendant concedes that his prior misdemeanors were burglaries, and burglary is a crime of moral turpitude. (E.g., People v. Collins (1986) 42 Cal.3d 378, 395.) Thus, he concedes that the first Beagle factor is not in [his] favor.

Regarding the second Beagle factor, defendant concedes there is no consensus among courts as to how remote a conviction must be before it is too remote. (People v. Burns (1987) 189 Cal.App.3d 734, 738.) But even if the convictions were stale, the staleness of an offense is generally relevant if and only if the defendant has led a blameless life in the interim. (People v. Harris (1998) 60 Cal.App.4th 727, 739.) Here, however, defendant incurred two misdemeanor DUI convictions in the years following his burglary convictions. (Cf. People v. Campbell (1994) 23 Cal.App.4th 1488, 1496-1497 [defendant with two DUI convictions and unregistered vehicle conviction did not lead legally blameless life].) Defendant nevertheless claims this factor favors exclusion because he otherwise has no criminal history of misdemeanors or felonies of any kind. But to prevail on appeal, defendant must do more than raise a debatable claim of blamelessness. Specifically, he must show that the trial courts implied rejection of this factor was arbitrary, capricious or patently absurd. (Peoplev.Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.) He has not done so.

Regarding the third Beagle factor, courts have noted that Prior convictions for the identical offense are not automatically excluded. The identity or similarity of current and impeaching offenses is just one factor to be considered by the trial court in exercising its discretion. [Citations.] (People v. Mendoza, supra, 78 Cal.App.4th at p. 926.) Thus, under this factor, a lack of similarity weighs in favor of admission of the prior conviction for impeachment.

At the in limine hearing, defendants trial counsel argued that the prior convictions were inadmissible as substantive evidence pursuant to Evidence Code section 1101. She emphasized that the prior and present cases do not involve any conduct that is similar in any stretch of the imagination. While this fact advanced counsels Evidence Code section 1101 argument, it did not advance her Beagle argument. The trial court correctly reasoned that this factor favored admission of the evidence.

For the first time in his reply brief, defendant contends the third Beagle factor should be reinterpreted to exclude prior offenses that are dissimilar to the current offenses. He reasons that, if this is not done, he runs the risk of a jury convicting him simply because he has committed numerous (but unrelated) crimes in his lifetime, whether or not the prior crimes are similar enough to the current crimes to be probative of an intent or predisposition to commit such crimes. The contention fails because it is untimely (Peoplev.Dunn (1995) 40 Cal.App.4th 1039, 1055), and because it overlooks CALJIC Nos. 2.20 and 2.23.1, which advised the jury on the proper use of misdemeanor conduct for impeachment.

The fourth Beagle factor, what the effect will be if the defendant does not testify out of fear of being prejudiced because of the impeachment by prior convictions, . . . has no application in this case because defendant actually took the stand and suffered impeachment with the priors. (People v. Mendoza, supra, 78 Cal.App.4th at pp. 925-926.)

In sum, the trial court did not exercise its discretion in an arbitrary, capricious or patently absurd manner. Its ruling did not result in a manifest miscarriage of justice. (Peoplev.Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.)

II

Defendant contends he was sentenced to consecutive subordinate terms and full consecutive terms in violation of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403], and Cunningham v. California, supra, 549 U.S. __ [166 L.Ed.2d 856]. We disagree.

In People v. Black (2007) 41 Cal.4th 799 (Black II) the California Supreme Court concluded that a defendants constitutional right to jury trial was not violated by the trial courts imposition of consecutive sentences . . . . (Id. at p. 823.) Black II explained that [t]he determination whether two or more sentences should be served in this manner is a sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense and does not implicate[] the defendants right to a jury trial on facts that are the functional equivalent of elements of an offense. [Citation.] (Ibid.) The courts reasoning, involving one-third consecutive terms imposed pursuant to sections 669 and 1170.1, also applies to the fully consecutive terms imposed here in the courts discretion pursuant to sections 667.6, subdivision (c) and 667.61. Accordingly, defendants contention has no merit.

DISPOSITION

The judgment is affirmed.

BLEASE , Acting P. J.

We concur:

DAVIS , J.

MORRISON , J.

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^[1] Further statutory references are to the Penal Code unless otherwise noted.

^[2] M.S. explained that Ha.L. sometimes used the word butt to refer to her vaginal area.

^[3] Defense counsel argued that the convictions were not admissible as substantive evidence pursuant to Evidence Code section 1101. The court responded that the prosecutor was seeking to admit the convictions for impeachment rather than as substantive evidence.