Filed 8/30/17 P. v. Rodriguez CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Following a jury trial, defendant C. Antioco Camacho Rodriguez was convicted of multiple counts of sexual abuse against his minor daughter E.R.[1] and an additional count of dissuading a witness. Defendant’s sole contention on appeal is that the trial court erred in excluding certain defense evidence relating to his abrupt departure from Redwood City to Mexico on the same day his daughter first reported the alleged sexual abuse. We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was the father of two different families. The first family consisted of defendant, his wife M., their three sons and daughter E.R. The second family consisted of defendant, mother T., their daughter and two sons.

Defendant and T. moved from Mexico to Redwood City around 1997, leaving their then infant daughter with defendant’s parents and M., who herself was pregnant with E.R. at the time. Defendant’s two sons with T. were born later, while they were living in Redwood City. M. and her four children moved from Mexico to Redwood City in 2003 or 2004. Once both families were settled in Redwood City, they lived in separate homes, and defendant split his time between them.

E.R. first came forward with the allegations of sexual abuse by her father on February 4, 2011. It is undisputed that defendant left for Mexico with T. and their family the same day. At trial, the parties offered competing evidence of the reasons for the departure, which we review in turn.

Prosecution Case

E.R. testified that defendant last attempted to touch her on Thursday evening, February 3, 2011, at which time she was 13 years old. On that evening, defendant tried to touch her vagina, she moved his hand away, and told him “no.” Defendant got mad at her, telling her he was no longer going to buy her shoes or clothes and that she was “going to get [her] own shit by [her]self.”[2] E.R. ignored him, and defendant left to stay with his other family.

The next morning, Friday, February 4, 2011, defendant returned to pick up a lunch M. was making for him to take to work. E.R. was still asleep, and defendant yelled at her to wake up for school. She responded that she did not feel like going to school, and M. asked if she wanted to accompany her to work instead. E.R. agreed to go to work with M. but did not want to answer M. when she asked why defendant was so upset with her. Eventually, when M. pressed the issue, E.R. started crying and told her mother that defendant had been sexually abusing her on an ongoing basis.

M. testified she was shocked by the revelation, called defendant, “screamed at him very badly,” and asked him what he had done to E.R. Defendant seemed surprised, denying he had done anything to E.R. Defendant nevertheless threatened M. that if she called the police, her family members in Mexico would “pay the consequences.”

Although M. never revealed the specific nature of E.R.’s allegations to defendant, he swore to her on his mother’s life that he had not done anything to E.R. Defendant told M. he would talk to her about the situation when he got home from work, but he never returned home from work that day. Later that evening, M. called the police, and E.R. reported that defendant had been sexually abusing her on an ongoing basis.

As part of their preliminary investigation, police investigators interviewed both the vice principal of the school defendant’s children with T. had been attending and the manager of the apartment complex where the family had been living. The vice principal reported that the children had abruptly left class on Friday, February 4, 2011, and never returned. The apartment manager reported that defendant had called him around 8:00 p.m. the same evening and told him that he had gotten into some trouble, had to leave, and would no longer be needing the apartment. Defendant did not indicate the nature of the trouble he was in, and the apartment manager assumed it was some sort of financial trouble.[3]

One of the investigating officers then obtained a federal Unlawful Flight to Avoid Prosecution warrant for defendant’s arrest. Defendant was subsequently apprehended in Mexico, brought back to the United States, and released to the custody of local authorities in December 2012.

Based on this evidence, the trial court gave the jury a standard “flight” instruction (CALCRIM No. 372), which, as given, stated: “If the defendant fled after he was accused of committing a crime, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct; however, evidence that the defendant fled cannot prove guilt by itself.” During his closing argument, the prosecutor expressly relied on this instruction, arguing at length that defendant’s sudden departure for Mexico on the day E.R. first reported that he had been sexually abusing her was strong evidence of a guilty conscience.

Defense Case

Defendant’s sister, Eufemia Rodriguez, testified that at a New Year’s gathering shortly before defendant left for Mexico, M. told them “to take pictures because it was going to be the last time we were going to be together.” Prior to his departure, defendant also told Eufemia that he wanted to take M. and their four children with him “because they weren’t obeying him here anymore.” One of the underlying problems related to text messages between E.R. and her boyfriend. Ultimately, when it came time to depart for Mexico, M. and her children did not accompany defendant because she did not want to leave.

Defendant testified that he occasionally argued with M. about the fact that his two youngest children with T. were born in the United States and, hence, were United States citizens. He vehemently denied having committed any of the sexual abuse described by E.R. during her testimony in the prosecution’s case-in-chief, steadfastly maintaining he had never been alone with E.R. or his daughter with T. at any point during their entire lives.

On direct examination, defendant was asked whether there were “ever any problems between your children—any of the children that you had with M. and the children that you had with T[.]” Defendant responded, “Lately, yes. They were threatening that they wanted to kill them.” When defense counsel attempted to clarify “[w]ho was threatening that they wanted to kill them,” the prosecutor objected based on hearsay and lack of foundation. The trial court heard additional testimony from defendant outside the presence of the jury and ultimately sustained the prosecutor’s objection pursuant to Evidence Code section 352.

Throughout his trial testimony, defendant acknowledged that he had left for Mexico with T. and their children on Friday afternoon, February 4, 2011, but claimed the departure was unrelated to the newly reported allegations of sexual abuse. Defendant testified that about a month or two before he left for Mexico he had had problems with E.R. following his discovery of photographs of naked women and colored condoms on her cell phone. Defendant broke the phone and replaced it with another one. After about three weeks, he took the replacement phone back from E.R. because she was getting more text messages. E.R. told defendant the messages were from her boyfriends, and defendant sought help from the principal of her school, who agreed to investigate who was sending the messages. When defendant followed up with the principal, he told him he was still investigating the matter.

Defendant testified that he was unaware of E.R.’s allegations of sexual abuse when he departed for Mexico and first learned of them later when he was detained by the police. When asked “all the reasons that [he] left for Mexico on February 4th of 2011,” defendant replied, “First, because I [had] been arguing with M. regarding the papers. The other one because at that time there was [sic] those threats against my children. That’s why we left.” [4] According to defendant, when he spoke to M. on the morning of his departure she did not mention the alleged sexual abuse but instead “said go away because now it’s time for me to get the papers for my children.”

On cross-examination, defendant acknowledged that he had left most of his belongings behind when he departed for Mexico, testifying “we only took what we needed” and that everything besides their clothing “was garbage.” Defendant also admitted he had not said goodbye to M. or their children prior to his departure. Defendant explained that he had not called the children “because they were at school. But I already had told them that we were going to Mexico because they were not behaving well.”

The final defense witness was defendant’s brother, Carlos Rodriguez. Carlos testified that M. often expressed anger toward defendant’s other family because his two youngest children with T. were citizens. Shortly before defendant departed for Mexico, at an anniversary party for defendant and M., Carlos overheard M. tell his sister “[t]hat that was going to be the last time that we all gathered together.”[5] Defendant also mentioned to Carlos that he was mad about E.R.’s cell phone and that “the kids weren’t listening.” At some point, defendant told Carlos he would be going to Mexico but did not say exactly when. Defendant sold one of his trucks to Carlos on the day he eventually left for Mexico but did not mention his impending departure, which Carlos did not learn about until two or three days after the fact.

During his closing argument, defense counsel acknowledged that defendant’s departure for Mexico “certainly was accelerated” but disputed that the departure had anything to do with the newly reported allegations of sexual abuse. Instead, defense counsel pointed to evidence of defendant’s previously expressed desire to take M. and their children with him to Mexico because the children were “out of control here.” In the end, M. would not go with him, and “that is a way of looking at his leaving. It doesn’t sound like a flight to avoid prosecution; sounds like somebody who’s just had it. The family is out of control. Fine. I’m going to leave.” Defense counsel highlighted the problems between defendant and E.R. over her cell phone, arguing that E.R. had fabricated the allegations of sexual abuse “because she was angry at her father for taking her to school, exposing her to the Principal, and exposing those messages on her phone.” Defense counsel portrayed M. as an unwitting participant, who was “duped into it” and “acted appropriately” to protect her daughter.

The Jury’s Verdict and Sentencing

The jury convicted defendant of four counts of lewd and lascivious conduct with a child under the age of 14 years, two related allegations that he had engaged in substantial sexual conduct with the victim, one count of attempted lewd and lascivious conduct, and one count of dissuading a witness. The jury acquitted defendant of one count of lewd and lascivious conduct and hung on 12 additional counts of sexual abuse, which were then dismissed in the interest of justice on the prosecution’s motion. The trial court sentenced defendant to a total term of 18 years in prison from which he timely appeals.

DISCUSSION

Federal Due Process Claim

Defendant claims the trial court violated his federal due process right to a fair trial by refusing to allow him to testify regarding his knowledge of threats to his children and how those threats affected his decision to leave for Mexico. The record belies this claim.

“Although the complete exclusion of evidence intended to establish an accused’s defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right.” (People v. Cunningham (2001) 25 Cal.4th 926, 999.) In this case, as set forth above, not only did defendant testify he had not committed any of the crimes with which he was charged but the defense also presented extensive evidence of the circumstances surrounding his departure for Mexico. This evidence included evidence of threats to his children. Specifically, when defense counsel asked whether there were “ever any problems between your children—any of the children that you had with M. and the children that you had with T[.],” defendant testified, “Lately, yes. They were threatening that they wanted to kill them.” The prosecutor did not object to defense counsel’s question or move to strike defendant’s answer.

It was only when defense counsel attempted to elicit follow-up testimony on the precise nature of the threats—that is, “[w]ho was threatening that they wanted to kill them”—that the prosecutor objected based on hearsay and lack of foundation. Following this objection, the trial court conducted an evidentiary hearing outside the presence of the jury. At the conclusion of the hearing, the trial court sustained the objection pursuant to Evidence Code section 352.[6]

Contrary to defendant’s assertion, the trial court’s ruling was not “a total prohibition” on evidence of threats to his children and the impact of those threats on his decision to depart for Mexico. Rather, shortly after the ruling, when asked “all the reasons that [he] left for Mexico on February 4th of 2011,” defendant specifically identified the “threats against my children” as one of two reasons he had done so. Still later, defendant testified that when he told his children with T. their family was leaving for Mexico, the two older children commented, “our lives is [sic] saved.” Because the record fails to establish “the complete exclusion of evidence intended to establish [his] defense” (People v. Cunningham, supra, 25 Cal.4th at p. 999), either generally or as it related to his departure for Mexico, defendant’s claim that his federal due process right to a fair trial was violated fails.

State Law Evidentiary Claim

Viewed in its proper context, the trial court’s decision was nothing more than a routine state evidentiary ruling to exclude evidence of the three specific threats defendant described during his testimony at the evidentiary hearing. We review such a ruling for an abuse of discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9–10.) In this case, the trial court acted well within its discretion in excluding evidence of each of the three threats.

Before examining the three specific threats, we reject defendant’s preliminary assertion that the record does not affirmatively demonstrate the trial court engaged in the requisite balancing process under Evidence Code section 352. As defendant acknowledges, “the trial judge need not expressly weigh prejudice against probative value—or even expressly state that he has done so.” (People v. Mickey (1991) 54 Cal.3d 612, 656.) Here, at the conclusion of the evidentiary hearing, the parties retired to chambers, where they argued the matter to the trial court, which then made the contested evidentiary ruling. Although the chambers proceedings were not reported, the “Settled Statement of Unreported Chambers Discussion,” which was prepared by defendant’s trial counsel and approved by the trial court, affirmatively states that the trial court “rel[ied] on Evidence Code §352.” Based on this specific reference to the governing evidentiary provision, we can safely presume the trial court conducted the requisite balancing described in the one sentence provision. (See ante, fn. 6.) To the extent defendant believes more was required, it was his obligation to provide this court with an adequate record for review. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; People v. Carter (2010) 182 Cal.App.4th 522, 531, fn. 6.) Turning next to the three threats described by defendant during the evidentiary hearing, we readily conclude evidence of each of them was properly excluded.

First, defendant maintains he should have been permitted to testify regarding an alleged incident in which M. and her children pointed a gun at T. and at least one her children. As recounted by defendant during the evidentiary hearing, “[w]hen we left,” T. told him, “it’s best that we leave because we were in a car and . . . we saw from a white car [M. and her four children] and they had a gun and it was pointing at us.” T. had not told him earlier “because she didn’t want to have more problems.” On cross-examination, defendant added, “they got to the apartment to kill them.” The prosecutor then inquired whether defendant had ever seen a gun, to which he responded as follows: “From M[.], I do not know if she has a gun or not. But [S.R. (one of his sons with M.)] will ask her where is the gun? I want it. And I told M[.] what gun are they talking about? And then she said my children are old enough to—they know what they’re doing. And I would say you’re doing a bad thing.”

The proffered evidence simply does not support defendant’s contention that he left for Mexico because of threats to his children. In fact, it is clear from defendant’s own testimony that T. did not tell him about the alleged incident with a gun until after he had already decided to leave for Mexico—in his own words, she told him “[w]hen we left.” In addition, it is abundantly clear from defendant’s largely incoherent testimony on cross-examination that he had no personal knowledge regarding the incident in question, and there was likewise no foundation whatsoever as to when it transpired in relation to his abrupt departure for Mexico on February 4, 2011. Under these circumstances, the trial court did not err in excluding the evidence.

Second, defendant argues the trial court erroneously precluded him from testifying that one time, when he went to Los Angeles to pick up L.R. (his daughter with T.), he left A.R. (one of his two sons with T.) with M.. According to defendant, when he returned, he discovered S.R. (one of his sons with M.) had threatened A.R. with a knife.

Defendant’s opening brief is simply mistaken on this point. In fact, during the evidentiary hearing, defendant testified that when he returned “[S.R.] told me that [A.R.] withdrew a knife and wanted to kill him.” In other words, according to defendant’s own testimony, it was A.R. who had threatened S.R. on this occasion and not the other way around. Moreover, as for the first alleged threat, defendant’s testimony during the evidentiary hearing fails to establish he had personal knowledge of the incident and, once again, there is no foundation as to when it transpired in relation to defendant’s departure for Mexico.[7]

Finally, defendant maintains the trial court should have allowed testimony regarding another alleged threat between S.R. and A.R. At the evidentiary hearing, defendant testified that, on his birthday in July of 2010, he overheard S.R. tell A.R., “I’m going to kill you.” Defendant reprimanded S.R., warning him, “I don’t want to have problems between the two of you.

This alleged threat had limited probative value on the question of why defendant abruptly departed for Mexico more than six months later on the same day E.R. first reported the allegations of sexual abuse. Indeed, had the testimony been admitted, it would have been substantially undermined by earlier defense evidence that before his departure, defendant told his sister Eufemia that he wanted to take M. and their four children with him “because they weren’t obeying him here anymore.” If defendant were still worried about S.R.’s alleged threat to kill A.R., it is highly unlikely he would have been planning to bring M. and their children, including S.R., with him to Mexico.

For the foregoing reasons, we conclude the trial court did not err in excluding evidence of any of the threats described by defendant at the evidentiary hearing.

DISPOSITION

The judgment is affirmed.

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Horner, J.*

We concur:

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Siggins, Acting P.J.

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Jenkins, J.

A142274