Filed 6/10/22 P. v. Escobar-Lopez CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

A jury convicted defendant Elmer Wilibaldo Escobar-Lopez of continuous sexual abuse of his minor stepdaughter, J.V. On appeal, Escobar-Lopez argues that his conviction must be reversed because (1) the information was amended to expand the time period of the alleged conduct after Escobar-Lopez waived his right to a preliminary hearing; (2) the trial court excluded evidence and limited examination regarding purported infidelity by J.V.’s mother; and (3) the prosecutor committed prejudicial misconduct during his rebuttal argument by arguing facts not in evidence regarding how J.V.’s mother could have sought a U visa for her participation in the case.[1] We affirm.

• I. BACKGROUND[2]

Escobar-Lopez was charged by information with a single count of continuous sexual abuse of a child, J.V. (Pen. Code,[3] § 288.5, subd. (a) (section 288.5(a)).) J.V. was born in May 2005, and lived with her grandparents in Mexico until she was eight years old. J.V. then moved to the United States to live with her mother, Nancy V. Her mother also resided with Escobar-Lopez, his children, J.V.’s older brother, and J.V.’s younger half-sister (the biological daughter of Nancy V. and Escobar-Lopez). Nancy V. and Escobar-Lopez subsequently married.

J.V. testified at trial that Escobar-Lopez first started touching her legs and breasts when she was eight years old. This happened “probably about twice.” When she turned 10 years old, it began happening “more times.” Escobar-Lopez would take J.V. into his room and touch his genitals to hers. He also put his mouth on her genitals. This would happen every time her mother went to work: “Sometimes all the week. [¶] . . . [¶] Almost all month.”

The last incident occurred on September 22, 2016, when she was 11 years old. Escobar-Lopez came into J.V.’s bedroom around 4:00 a.m., began touching her body, and put his mouth on her breasts. J.V. went to check if her mom’s car was outside and returned to her room because she thought Escobar-Lopez had left. Escobar-Lopez then took her to the bed and was touching her leg when her mother came in and saw. J.V. heard her mother crying in the hallway. J.V. did not get along with Nancy V., and never felt love from her or for her. After this last incident, J.V. thought about going back to live with her grandparents but did not accuse Escobar-Lopez to do so.

Nancy V. testified that she left the house on September 22, 2016, at 3:30 a.m., to help distribute religious materials but returned shortly thereafter because she was unable to connect with her fellow church member as planned. She discovered Escobar-Lopez in J.V.’s bedroom, touching J.V.’s leg while also touching his genitals. Escobar-Lopez told Nancy V. that he was waking J.V. to help because their other daughter (approximately three years old at the time) was crying. Nancy V. did not hear any crying. Nancy V. agreed that she did not have a good relationship with J.V. by the time J.V. was nine years old. Nancy V. would call J.V. names and pull her hair when she got mad at J.V.

Escobar-Lopez testified that he was trying to wake J.V. on the morning of September 22, 2016, because his daughter was crying and he wanted to ask J.V. if she knew where Nancy V. was. Escobar-Lopez touched J.V.’s shoulder so that she would wake up, but denied ever molesting her or touching himself.

The jury found Escobar-Lopez guilty as charged. Escobar-Lopez was sentenced to 12 years in prison.

• II. DISCUSSION

1. Amendment of Information

Escobar-Lopez argues that his due process rights were violated when the trial court permitted amendment of the information (expanding the time period of the alleged conduct underlying his section 288.5(a) charge) after he had waived his right to a preliminary hearing.

1. Additional Facts

In 2016, Escobar-Lopez was charged by complaint with continuous sexual abuse of J.V. occurring “on or about and between May 7, 2015 and September 22, 2016.” In 2017, Escobar-Lopez waived his right to a preliminary hearing and an initial information was filed alleging conduct across the same time period. The matter was assigned for trial in 2018. At that time, the defense moved in limine to exclude evidence of uncharged crimes. The prosecutor argued that J.V. had stated her abuse began when she was eight years old—two years before the time period charged in the information. The court denied the motion to exclude this evidence, but indicated it would provide a limiting instruction. The trial was continued, however, upon the discovery of new evidence regarding a recorded voicemail from Nancy V.

The case was reset for trial in 2019. Before trial, the prosecutor moved to amend the information to modify the beginning date of the alleged conduct from May 7, 2015, to May 7, 2013. Defense counsel opposed amendment on due process grounds. The trial court permitted the amendment, which was made by interlineation.

2. Analysis

Section 1009 provides the general framework for amendment of criminal pleadings. (People v. Winters (1990) 221 Cal.App.3d 997, 1005.) It authorizes the court in which an action is pending to permit amendment of an information “for any defect or insufficiency, at any stage of the proceedings, or if the defect in an indictment or information be one that cannot be remedied by amendment, may order the case submitted to the same or another grand jury, or a new information to be filed.” (§ 1009.) It also provides, however, that “[a]n indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination.” (Ibid.) In other words, section 1009 “authorizes amendment of an information at any stage of the proceedings provided the amendment does not change the offense charged in the original information to one not shown by the evidence taken at the preliminary examination.” (Winters, at p. 1005, emphasis added.) “If the substantial rights of the defendant would be prejudiced by the amendment, a reasonable postponement not longer than the ends of justice require may be granted. The questions of whether the prosecution should be permitted to amend the information and whether continuance in a given case should be granted are matters within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent a clear abuse of discretion.” (Ibid.)

Here, Escobar-Lopez argues that the trial court abused its discretion because the amendment changing the beginning date from 2015 to 2013 constituted a “significant variance” from the initial information. To support this position, Escobar-Lopez relies on Winters, People v. Mora-Duran (2020) 45 Cal.App.5th 589, and People v. Peyton (2009) 176 Cal.App.4th 642 (Peyton). His reliance on those cases is misplaced.

In Winters, the defendant waived his right to a preliminary hearing and was charged with possession of methamphetamine. (People v. Winters, supra, 221 Cal.App.3d at p. 999.) During trial, the court permitted amendment of the information to allege a second count of transportation of methamphetamine. (Id. at pp. 1001–1002.) Winters reversed the defendant’s conviction on this second count, concluding that an amendment adding a new count was improper under section 1009. (Winters, at p. 1008.) Here, unlike Winters, the amendment did not add any new crime. Escobar-Lopez was still charged with a single count of continuous sexual abuse under section 288.5(a).

In Mora-Duran, the defendant was originally charged with felony marijuana cultivation, conspiracy to commit felony marijuana cultivation, and possession of marijuana for sale. (People v. Mora-Duran, supra, 45 Cal.App.5th at p. 592.) After the defendant waived the preliminary hearing, the prosecution filed an amended information that modified the felony marijuana cultivation count following a statutory amendment that added new elements to the crime, including the violation of certain environmental protection laws. (Ibid.) Mora-Duran reversed the defendant’s conviction on this count, concluding that the amendment presented a “moving target” by expanding the scope of the defense. (Id. at p. 600.) For example, the defendant was now required to respond to “disparate and esoteric considerations” regarding water contamination. (Ibid.) Here, unlike Mora-Duran, the amendment did not change the nature of the offense charged: continuous sexual abuse against J.V. Nor did it require Escobar-Lopez to expand the scope of his defense, as he continued to maintain that J.V. and her mother were lying and the molestation—regardless of its alleged start date—never occurred.

Finally, in Peyton, the defendant waived his right to a preliminary hearing and was charged with four counts of sexual assault of a child (three counts of oral copulation and one count of sexual penetration), based on conduct alleged to have occurred in 2005. (Peyton, supra, 176 Cal.App.4th at p. 650.) During trial, the court permitted amendment of the information to add a new fifth count of aggravated lewd conduct, modify two of the oral copulation counts to sexual penetration counts, and change the date of the underlying acts to 2004. (Id. at pp. 649–651.) Peyton reversed the conviction on the fifth count as an improper additional charge, but concluded that amendment of the other counts did not violate section 1009 because it did not create “significant variance” from the original counts. (Peyton, at pp. 646, 660.) Peyton explained: “The operative pleading under which defendant was convicted did not charge him with violating a different Penal Code section from that alleged in the amended complaint. Both pleadings were based on the same course of conduct which occurred over an extremely limited time period and involved the same victim. Both pleadings dealt with the same underlying acts, oral copulation and sexual penetration. Defendant was not presented with a moving target; he was fully aware of what he had to defend against. Additionally, the punishment for the crimes charged in the amended complaint and the second amended information were identical. The substantial rights of defendant were simply not implicated.” (Id. at p. 660.) Peyton also reasoned that the precise date of the conduct need not be stated in the accusatory pleading where the date is immaterial to an offense, and the defendant had not shown he was prejudiced by the variance in the date because he denied engaging in any illegal conduct whatsoever. (Id. at pp. 659–660.)

So too here. The amendment did not charge Escobar-Lopez under a different Penal Code section, was based on the same course of conduct, and involved the same victim. The record also suggests Escobar-Lopez was fully aware of the allegations against which he had to defend. Indeed, eight months before the amendment, defense counsel sought to exclude any evidence of alleged molestation before May 2015. Enlarging the time period back to May 2013 did not present Escobar-Lopez with a “moving target” or impinge on his ability to prepare his defense. (Peyton, supra, 176 Cal.App.4th at p. 660.)

Nor are we persuaded by Escobar-Lopez’s argument that the time period was material here and he suffered prejudice as a result of the amendment. Escobar-Lopez contends that the prosecution had to expand the time period (to include the two alleged incidents when J.V. was eight years old plus the September 22, 2016 incident) in order to prove three total acts of substantial sexual conduct as required under section 288.5(a). This contention is belied by the record. J.V. testified that when she was 10 years old, Escobar-Lopez would molest her whenever her mother went to work, and that it happened “more times” than when she was eight years old. She also testified to at least two types of specific conduct that occurred during this period: Escobar-Lopez would touch his genitals to hers, and would also put his mouth on her genitals. J.V. thus testified about repeated conduct that, in addition to the September 22, 2016 incident, occurred within the time period alleged in the initial information.

In sum, we conclude that the trial court did not abuse its discretion in permitting amendment of the information.

2. Evidence and Examination Regarding Mother’s Infidelity

Escobar-Lopez argues that the trial court abused its discretion in excluding evidence and examination regarding Nancy V.’s purported infidelity during their relationship. He contends that these rulings prejudiced his ability to (1) attack Nancy V.’s credibility, show her bias, and identify her motive to lie; and (2) demonstrate that J.V. may have “weaponized” her own awareness of the infidelity to create conflict between Escobar-Lopez and Nancy V., and that J.V. may have fabricated her accusations against him to “escape from a household where she was unhappy and return to her beloved grandparents in Mexico.”

1. Additional Facts

Before trial, the prosecutor moved in limine to exclude “character” evidence regarding Nancy V., including specific allegations of her infidelity. The trial court ruled that it would permit evidence regarding the relationship between Escobar-Lopez and Nancy V. and whether he had confronted her about infidelity, but not into the “specifics of affairs.” It continued: “We’re not going to go into that because under [Evidence Code section] 352, I’m finding that the probative value will be substantially outweighed by not only the prejudicial effect, but the potential for confusion and, certainly, the undue consumption of time.”

Nancy V. testified that her relationship with Escobar-Lopez was “[v]ery good” at the time of the September 22, 2016 incident, and that he had never confronted her about seeing or dating other men. Defense counsel then sought to introduce “flirtatious” messages between Nancy V. and other individuals, arguing they were relevant based on her prior testimony. The trial court held a hearing under Evidence Code section 402 on the issue. It stated: “My biggest concern with this entire issue is exactly what is happening with this hearing. There is context to all of this. We don’t know when these exactly were sent. We know that they were sent around the time that the alleged conduct was observed by [Nancy V.]” There was no information indicating “Escobar-Lopez was aware of what, if anything, she was doing discretely through Messenger and text messages and things of that nature.” The court excluded the messages, finding they were “not relevant to the point that any probative value is not substantially outweighed by the prejudicial effect, including the confusion that it may cause for the jury, including the undue consumption of time that it will require.”

J.V. testified that Escobar-Lopez and her mother would have big fights. When asked what they would fight about, the prosecutor objected on relevance. The trial court held another Evidence Code section 402 hearing. It ruled that J.V. could be questioned as to whether Escobar-Lopez and her mother fought over infidelity, but not about “specific instances” of infidelity. The court noted: “This is the rabbit hole that I’ve been trying to avoid and I continue to think going down this rabbit hole is right [sic] with the possibility to confuse the factfinder, to take significant amounts of time, which we are doing. This is exactly the reason I’ve been trying to avoid going down this road, is [sic] because we continue to take time addressing this issue over, and over, and over again.” J.V. then testified that Escobar-Lopez and her mother would fight about cheating.

Escobar-Lopez testified that he and Nancy V. started having problems in 2013 because of infidelity. When asked about what information Escobar-Lopez had about Nancy V.’s infidelity, the prosecutor objected on relevance. Outside of the presence of the jury, the court indicated it would continue to abide by its prior ruling to permit evidence regarding the relationship and Escobar-Lopez’s knowledge of infidelity, but limit “specific detailed questions about specific acts or circumstances of conduct.” Escobar-Lopez then testified that he had gained information about Nancy V.’s affairs “from the messages and from people that began to tell me things.” In 2013, Escobar-Lopez was told by a friend that she had seen another man coming out of Escobar-Lopez’s room. He was also confronted by the wife of a man dating Nancy V. When asked about other evidence, Escobar-Lopez responded: “Yes. Some Facebook messages that I found.” The prosecutor objected, and the court struck the answer with the exception of the word “yes.”

Escobar-Lopez also testified that J.V. had told him about her mother’s infidelity, which caused problems between J.V. and her mother. Escobar-Lopez, however, had caught Nancy V. telling J.V. to lie about the affairs, and J.V. admitted she had lied. Escobar-Lopez fought with Nancy V. many times about infidelity, including after his discovery of her Facebook messages. Nancy V. told Escobar-Lopez that she was unwilling to stop the affairs.

Olivia Vicente testified that she had lived next to Escobar-Lopez and Nancy V., and they would fight often over Nancy V. having affairs. Escobar-Lopez’s brother also testified that Escobar-Lopez and Nancy V. would fight about infidelity.

2. Analysis

The federal Constitution guarantees criminal defendants “ ‘ “a meaningful opportunity to present a complete defense.” ’ ” (Nevada v. Jackson (2013) 569 U.S. 505, 509.) While this guarantee “prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote,” a trial court is still permitted to exclude evidence under well-established rules of evidence. (Holmes v. South Carolina (2006) 547 U.S. 319, 326.) Evidence Code section 352 vests the trial court with discretion to exclude otherwise relevant evidence if “its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” We review such rulings for abuse of discretion. (People v. Jones (2017) 3 Cal.5th 583, 609 [“ ‘We will not reverse a court’s ruling on such matters unless it is shown “ ‘the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice’ ” ’ ”].)

The constitutional right of confrontation “includes the right to cross-examine adverse witnesses on matters reflecting on their credibility.” (People v. Quartermain (1997) 16 Cal.4th 600, 623.) The confrontation clause, however, guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (Delaware v. Fensterer (1985) 474 U.S. 15, 20.) Trial courts retain wide latitude to impose reasonable limits on cross-examination where, for example, the testimony is only marginally relevant. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.) A trial court’s limitation on cross-examination pertaining to the credibility of a witness violates the confrontation clause only when “a reasonable jury might have received a significantly different impression of the witness’s credibility had the excluded cross-examination been permitted.” (Quartermain, supra, 16 Cal.4th at p. 624.)

Here, Escobar-Lopez identifies three evidentiary rulings that he argues precluded his right to present a defense and resulted in prejudice: (1) the exclusion of Facebook and text messages between Nancy V. and other individuals; (2) the limitation of J.V.’s cross-examination regarding the fights between Escobar-Lopez and Nancy V., as well as J.V.’s revelations to Escobar-Lopez about infidelity she had witnessed; and (3) the limitation of Escobar-Lopez’s testimony regarding the “facts” of the infidelity.

What this argument overlooks, in our view, is that the trial court permitted substantial evidence on the issue of Nancy V.’s purported infidelity. As described above, Escobar-Lopez testified at length regarding this infidelity, including the bases of his knowledge of her affairs as well as the effect it had on their marriage and Nancy V.’s relationship with J.V. It was the repercussions of this infidelity, not the specific details of the claimed infidelity itself, that were relevant to understanding Nancy V. or J.V.’s alleged bias or motive to lie. (See People v. Bautista (2008) 163 Cal.App.4th 762, 783 [rejecting claim that defendant was unable to elicit source of resentment toward him absent evidence regarding victim’s prior conduct].) The specifics of the affairs were, at best, tangential. (See ibid.) We thus agree with the trial court that the presentation of such evidence would have necessitated an undue consumption of time, and created a substantial danger of undue prejudice and jury confusion.

Moreover, despite Escobar-Lopez’s contention to the contrary, the trial court permitted evidence that corroborated his testimony (and discredited Nancy V.’s testimony) on the topic. J.V. testified that her mother and Escobar-Lopez would fight about cheating. Two other witnesses, Vicente and Escobar-Lopez’s brother, also testified about the fighting between Nancy V. and Escobar-Lopez based on her infidelity. Through this evidence, Escobar-Lopez was able to attack Nancy V.’s credibility and support his own. (See Evid. Code, § 780; People v. Jones (1984) 155 Cal.App.3d 153, 182.) A reasonable jury would not have received a significantly different impression of Nancy V.’s credibility had the trial court permitted further evidence and examination on the topic. (People v. Quartermain, supra, 16 Cal.4th at p. 624.)

In sum, we conclude that the trial court’s evidentiary rulings regarding Nancy V.’s purported infidelity did not constitute an abuse of discretion.

3. No Prosecutorial Misconduct

Escobar-Lopez argues that the prosecutor committed prejudicial misconduct by arguing facts not in evidence regarding the process by which Nancy V. could have obtained a U visa. He claims the argument “eviscerated” his defense that Nancy V. had orchestrated the false accusations of molestation against Escobar-Lopez to avail herself of the visa program.

1. Additional Facts

Escobar-Lopez testified that, prior to the September 22, 2016 incident, Nancy V. had told him people could gain United States citizenship by asserting child molestation claims. Nancy V. said she was “thinking of accusing [him] of that.”

Nancy V. testified that she had talked with Escobar-Lopez about people fixing citizenship problems by claiming domestic violence. She denied making any such statement regarding child molestation. At the time of trial, Nancy V. was not a legal citizen of the United States and had not applied for any immigration status or benefit.

Amy French, an employee of the Kern County District Attorney’s Office, testified about the process for handling U visa applications. If someone was “helpful during the investigation at some point,” the office would send a certified letter to that effect for the application. When asked whether an individual must apply for a U visa before the case goes to completion, as in a verdict, she responded: “No. They can do it at any point.” When asked whether an individual could apply years after a case goes to trial or reaches a verdict, she responded: “Yes.”

During closing, the prosecutor argued that Nancy V. had not asked for protected status in the three years since the molestation had been reported. Referencing the French testimony, defense counsel argued that an individual who cooperates through an investigation or trial can ask for a U visa. He continued: “So that’s how it’s done, traditionally. Cooperate through trial. Here we are, through trial.” During rebuttal, the prosecutor argued: “For all Ms. French told us, she could have—Nancy could have called my office, convinced us to dismiss the case and still gotten her U visa. The case is over, you can still do it when the case is over. Seems like that’s an easier way to go about this.” Defense counsel objected to the argument as improper. The trial court instructed the jury: “All right. Ladies and gentlemen, you’ve heard the evidence. It will be up to you to decide what the evidence was and what facts are established by that evidence. As you’ve heard me say throughout the course of this trial, nothing the attorneys say is evidence and should not be considered as evidence. Their comments here are based on their perception of the evidence but, ultimately, it is your perception of the evidence that is important.” It then overruled the objection. Outside the presence of the jury, the trial court found there was no prosecutorial misconduct and an “effective and appropriate curative type of instruction” had been provided to the jury.

2. Analysis

“A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44 (Morales).) “At closing argument a party is entitled both to discuss the evidence and to comment on reasonable inferences that may be drawn therefrom.” (Ibid.) Prosecutorial argument “ ‘ “ ‘may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.’ ” ’ ” (People v. Stanley (2006) 39 Cal.4th 913, 951.) “Furthermore, and particularly pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (Morales, at p. 44.)

The prosecutor’s rebuttal argument here was a permissible inference drawn from the evidence. (Morales, supra, 25 Cal.4th at p. 44.) French testified that an individual could apply for a U visa “at any point,” including before (or after) the case reaches a verdict. She testified that, as long as the individual had been helpful “at some point,” the district attorney’s office would support the application. The possibility that Nancy V. could have sought dismissal of the case and still obtained a U visa is entirely consistent with this testimony.

The point was also responsive to defense counsel’s own arguments, suggesting that Nancy V. could still apply for her U visa because applicants “traditionally” wait until trial is over. It was permissible for the prosecutor to identify an opposing scenario: that Nancy V. could have sought an end to the case before trial and applied for the U visa at that point. (See People v. Cunningham (2001) 25 Cal.4th 926, 1027 [hypothetical regarding prison conditions was within permissible limits of rebuttal to defense argument regarding future prison conduct].)

Finally, the alleged misconduct was not prejudicial because the trial court admonished the jury that attorney arguments were not evidence and it was up to them to decide what facts were established by the evidence. (People v. Cunningham, supra, 25 Cal.4th 926 at pp. 1001–1002.) Viewed in this context, there is no reasonable likelihood that the prosecutor’s argument misled the jury in an objectionable fashion. (Morales, supra, 25 Cal.4th at p. 44.) We thus conclude there was no prejudicial prosecutorial misconduct warranting reversal.

• III. DISPOSITION

The judgment is affirmed.

STREETER, J.

WE CONCUR:

POLLAK, P. J.

BROWN, J.

[1] A “U visa” is a temporary, nonimmigrant visa that provides legal status for noncitizens who assist in the investigation or prosecution of certain crimes in which they (or their minor children) have been victimized. (See 8 U.S.C. § 1101(a)(15)(U).)

[2] The following is a brief summary of some of the factual and procedural background in this case, which we set out to provide context to the issues raised on appeal. Additional facts are included in our legal discussion.

[3] Undesignated statutory references are to the Penal Code.