Opinion
H023863.
11-14-2003
THE PEOPLE, Plaintiff and Respondent, v. NOE RODRIGUEZ, Defendant and Appellant.
Noe Rodriguez was convicted of multiple sexual offenses committed against four girls under the age of 14. On appeal, he argues (1) expert testimony on child sexual abuse accommodation syndrome (CSAAS) was inadmissible; (2) "fresh complaint" testimony was wrongly admitted; (3) his post trial motion to replace counsel should have been granted; (4) cumulative error requires reversal; (5) Stogner v. California (2003) ___U.S.____ shows that his convictions for the offenses involving Victim 1 and Victim 2 are improper; and (6) evidence about defendants acts toward two victims was improperly admitted to show defendants guilt as to offenses against other victims. Under the authority of Stogner, defendants convictions for the offenses involving Victim 1 are improper and therefore we will reverse the judgment and remand for resentencing.
FACTS AND PROCEDURAL BACKGROUND
Defendant was charged with molesting four girls during a period from 1979 until 1999. The girls ranged in age from seven to 13 years old.
Victim 1
Victim 1 is defendants niece. She was born in 1972. In 1979, when Victim 1 was seven years old, she lived in Morgan Hill with her parents and younger sisters. While babysitting the girls, defendant molested Victim 1. The molests began with defendant rubbing her breasts and vagina. Defendant told Victim 1 it would be "our little secret" because "no one will believe you."
Defendant began carrying Victim 1 to the bedroom, and molesting her there. He kept his hand over her mouth so she was unable to call out. During the next three years, defendant raped Victim 1 over 10 times. He told her that "what I do to you is going to always be different from what other little boys do to you."
Victim 1 did not tell her parents because she did not think they would believe her. Defendant continued telling Victim 1 that "it was our secret" and used his tone of voice to intimidate her.
The molestations ended when Victim 1 was 10 years old and she no longer needed a babysitter. When Victim 1 was 18 years old, she finally told her parents what had happened, causing a rift within her family.
Victim 2
Victim 2 was born in 1980. She lived next door to defendant. By the time she was five or six years old, she felt "uncomfortable" around defendant because he touched her breasts and vagina areas while playing with her. She did not believe the touchings were accidental because he groped her. Victim 2 did not say anything because defendant was a family friend.
Defendant eventually married Victim 2s mother and moved in with the family. When Victim 2 was about nine years old, she fell asleep on the living room couch and was awakened by defendant who was on top of her, taking off her clothes. Even though Victim 2 tried to push defendant from her, he succeeded in removing her clothing. He forced her to touch his erect penis with her hand, and tried to insert his penis into her vagina. Victim 2 did not tell anyone about the incident because "I was scared. I just let it go."
Victim 3 and Victim 4
In the summer of 1999, Victim 3 was 13 years old. Her sister, Victim 4, was 10 years old. Victim 3 and Victim 4 lived in Morgan Hill with their Aunt Connie and Connies two children. Their mother, Patricia, was incarcerated for failing to appear in court on a child neglect charge. Connie was married to defendant.
On one occasion, Victim 3 was on the patio when defendant touched her chest below the collar line. Because this made Victim 3 uncomfortable, she sat up, which caused defendant to stop.
In early summer 1999, Victim 3 was in the swimming pool when defendant pulled her toward him and rubbed her vaginal area through her swimsuit. When Victim 3 tried to pull away, defendant pulled her tighter, keeping his arms around her wrist. Victim 3 could feel "his penis . . . on my butt." Defendant continued rubbing Victim 3s vagina until she kicked his leg, swam away, and exited the pool.
According to Victim 4, defendant touched her inappropriately "a few times" while she lived in Morgan Hill. More than once, defendant isolated Victim 4 in the pool where he grabbed her and molested her. Defendant used his arms to keep Victim 4 from escaping. In another incident, defendant touched Victim 4s chest over her shirt as she watched television in his bedroom.
Victim 4 never told anyone about the touchings because she was ashamed. She was afraid she would be placed in a shelter if defendants conduct were disclosed.
In June or July 1999, Victim 3 told her cousin about defendants behavior. She also revealed the molests to her friend Mark R. In mid-July 1999, Victim 3 called her mother Patricia but started crying and was unable to inform her of defendants behavior. Patricia called Victim 3 back and asked if someone had touched her. Victim 3 said she was afraid her mother would go to prison if she knew what happened. Patricia contacted the police, and they came to the apartment a few hours later. Victim 3 and Victim 4 told the investigators about defendants molestations.
In the fall of 1999, Victim 1 reported defendants abuse from the 1970s and 1980s. She decided to reveal defendants conduct when she interviewed Victim 3 and Victim 4s mother, Patricia, for a job. Patricia told Victim 1 that she really needed the job because her sister had recently married a man who had molested Patricias daughters. Victim 1 realized that the man was her uncle, defendant. Victim 1 ultimately contacted the police.
At the request of the police, Victim 1 called defendant at his home on the morning of November 22, 1999. She said she had been going through counseling about what had happened to her as a child, and need to know "why you did it." Defendant said, "Im very sorry things like that happened. Its like, oh, its you know it eats me every day to hear it like that, you know." Pressed to explain, defendant said, "I guess, I dont know why. Its hard to explain[,] I guess. Things happen like that." Defendant said that some people "think its okay." When Victim 1 said "I dont understand how you could think it was okay," defendant replied "I guess maybe its an illness that you know crawls into somebodys head and just feel that you know like a craziness I guess gets into the head and I, I just, I dont know I feel that person is sick . . . ." Defendant did not think he needed counseling because "Ive learned that you know those things are wrong. Straight up."
Defendant assured Victim 1 that he had not molested any one else. When Victim 1 asked defendant if he remembered how many times he had had sex with her, he said, "no, not really, like maybe about four or five times." Defendant estimated that Victim 1 was about nine years old at the time.
At trial, Carl Lewis, an investigator with the Santa Clara District Attorneys Office, testified about CSAAS. He said the term meant a pattern of behavior exhibited by children who had been sexually abused. It was not a diagnostic tool, however, because not every child subjected to sexual abuse exhibits the described pattern of behavior. The syndrome was intended to debunk the myth that every abused child behaves identically.
According to Lewis, CSAAS acts to refute the myth that a child who does not complain immediately, fight back, or ask for help, is a willing participant in the abuse, or has invented the entire accusation.
DEFENSE
Defendant denied having intercourse with Victim 1. He denied molesting Victim 2, Victim 3, or Victim 4. He acknowledged that he might have accidentally touched Victim 3 in her private area in the swimming pool. Defendant denied admitting to Victim 1 on the telephone that he had had sex with her. According to defendant, it was not his voice on the tape-recorded conversation.
Defendants wife, Connie, and Connies daughter testified that they never saw defendant touch Victim 3 or Victim 4 inappropriately. Connie, who listened to defendants telephone conversation with Victim 1, did not hear him admit to having sex with her.
The jury convicted defendant of three counts of lewd and lascivious acts upon a child under the age of 14 by means of force, violence, duress, menace, or fear. (Pen. Code, § 288, subd. (b)(1).) Defendant was also convicted of five counts of lewd and lascivious acts upon a child under the age of 14. (Pen. Code, § 288, subd. (a).) Defendant was convicted of four counts of rape (Pen. Code, 261, § subd. (a)(2)), one count of attempted rape, and one count of digital penetration by force or fear. (Pen. Code, § 289, subd. (a).) As to some of the counts, it was found that defendant committed an offense specified in Penal Code section 667.61 against more than one victim.
Defendant was sentenced to a 43-year determinate term, plus an indeterminate term of 90 years to life, which was run consecutively to the determinate term.
DISCUSSION
I. CSAAS Testimony
Defendant challenges the admission of the CSAAS testimony. As we explain, there was no error.
Although expert testimony on the common reactions of child molestation victims is inadmissible to prove that a charged sex crime actually occurred, CSAAS testimony "is admissible to rehabilitate [the complaining] witnesss credibility when the defendant suggests that the childs conduct after the incident—e.g. a delay in reporting—is inconsistent with his or her testimony claiming molestation. [Citations.]" (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301, fn. omitted; People v. Bowker (1988) 203 Cal.App.3d 385, 390-394.)
According to defendant, expert testimony on this subject is no longer proper because increasing media coverage of child sex abuse cases, especially "those now involving the Catholic Church, and the long-standing silence shrouding those victims and their abusers," means that the public now knows why children may not immediately disclose incidents of sexual abuse. Defendant suggests that we "reexamine whether the underlying premise validating the admission of expert testimony on CSAAS is still correct."
We decline to conduct the reexamination requested by defendant given that we are bound by McAlpin, and principles of stare decisis. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Moreover, we note that there is a difference between public awareness that child molestation victims delay reporting incidents of molestations and the publics thorough understanding of the reasons underlying why that delay takes place. In this sense, then, defendants asserted basis for requesting reconsideration of the principles underlying admission of CSAAS expert testimony is flawed.
Defendant contends the CSAAS testimony was inadmissible because the evidence did not support the specific "myth" of recantation. But the evidence did plainly establish Victim 1s and Victim 2s delay in reporting the incident. Delay in reporting is a "myth" or "misconception" concerning the conduct of molest victims. As stated in People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745, CSAAS expert testimony may be admitted where "the victims credibility is placed in issue due to the paradoxical behavior, including a delay in reporting a molestation. [Citations.]"
Finally, we reject defendants characterization of the CSAAS evidence as improper profile evidence. Lewiss testimony was focused upon the behavior of the victim and satisfied the bounds of proper expert testimony.
II. Fresh Complaint
According to defendant, it was improper to admit Ramirezs testimony regarding Victim 3s revelation that defendant had molested her. Defendant contends the evidence was cumulative, and violated the fresh complaint doctrine because it impermissibly disclosed details of the offense. We disagree.
Ramirezs testimony was not cumulative. Ramirezs testimony corroborated Victim 3s testimony that she called him soon after the molestations. Because Victim 3 contacted Ramirez before she contacted her mother, her complaint to him was "fresher," thereby providing an adequate basis for the trial courts decision to exercise its discretion and admit the testimony.
Despite defendants contrary claim, the testimony did not fall outside the bounds of the fresh complaint doctrine. (People v. Brown (1994) 8 Cal.4th 746, 749-750.) Although defendant contends Ramirezs testimony impermissibly included details of the molestation, Ramirezs testimony on the subject was "She said she was in the pool, they were swimming, and Noe was touching her in the pool." We do not believe the nonspecific reference to "touching" is enough to justify characterizing the testimony as constituting an improper reference to the details of the incident, violative of People v. Brown, supra, 8 Cal.4th at p. 760. Based on our conclusion, it follows that we also reject defendants claim that admitting the evidence violated due process and the Confrontation Clause.
As explained in People v. Brown, supra, 8 Cal.4th 746, under the historical fresh-complaint doctrine, a victims extra-judicial complaint was admissible for a limited, non-hearsay purpose, to establish simply that such a complaint had been made, to forestall the trier of fact from inferring that since no complaint had been made, the victim, in fact, had not been sexually abused. The Supreme Court held the basis for admitting such evidence was outdated; nevertheless, the fresh-complaint evidence was properly admissible, in most instances, under generally applicable evidentiary standards. "[W]e conclude that, under principles generally applicable to the determination of evidentiary relevance and admissibility, proof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose—namely, to establish the fact of, and the circumstances surrounding, the victims disclosure of the assault to others—whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of facts determination as to whether the offense occurred." (Id. at pp. 749-750.) Brown cautioned, "only the fact that a complaint was made, and the circumstances surrounding its making, ordinarily are admissible; admission of evidence concerning details of the statements themselves, to prove the truth of the matter asserted, would violate the hearsay rule. [Citation.]" (Id. at p. 760.)
We likewise reject defendants claim of cumulative error.
III. Post-Trial Motion To Substitute Counsel
According to defendant, the trial court should have granted his post trial motion for substitute counsel. (People v. Marsden (1970) 2 Cal.3d 118.) We disagree.
Background
After the jurys verdict, defendant wrote the trial court a letter entitled "Motion For Mistrial." The trial court treated the motion as a request for a Marsden hearing because it criticized counsels refusal to take certain actions. Defendant said he had been physically and mentally unable to withstand trial. He complained that counsel did not request a continuance, told him to "shut up" when he told her what questions to ask witnesses, failed to provide him with a "discovery packet," did not call certain witnesses, did not make a motion on ex post facto grounds, and permitted hearsay evidence to be used against him.
In response, counsel said that the witnesses defendant suggested were either unavailable or not relevant. She said the prosecutions evidence was testimony from victims, rather than hearsay evidence. Counsel explained that she had given defendant the entire discovery that he had requested.
With respect to defendants complaint regarding a continuance, counsel pointed out that she had moved for a continuance, but that the motion had been denied because, in counsels opinion, defendant was not physically or mentally incapacitated. Counsel noted that defendants participation during trial undermined any claim of mental disability.
Counsel acknowledged telling defendant to "be quiet" on several occasions, noting that she could not cross-examine a witness if "he is talking in my ear." Counsel also noted that she had in fact made a motion on ex post facto grounds.
After considering these facts, the trial court denied defendants motion to substitute counsel.
Analysis
"When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorneys inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations]." (People v. Crandell (1988) 46 Cal.3d 833, 854 [citations omitted].) " `When a defendant moves for substitution of appointed counsel, the court must consider any specific examples of counsels inadequate representation that the defendant wishes to enumerate. Thereafter, substitution is a matter of judicial discretion. " (People v. Smith (1993) 6 Cal.4th 684, 690, quoting People v. Webster (1991) 54 Cal.3d 411, 435.)
In this case, there was no error. First, no new trial motion had been filed. Except for sentencing no further proceedings were contemplated. Second, even if we treat defendants motion as a request to substitute counsel for the purpose of filing a new trial motion based upon trial counsels incompetence, we are still convinced there was no abuse of discretion in denying the motion. Many of defendants complaints concerned trial tactics, which do not justify removing counsel. (People v. Crandell, supra , 46 Cal.3d at pp. 859-860.) Some of defendants complaints were unfounded, such as his claim regarding the filing of an ex post facto claim. The fact that counsel contradicted defendant at the Marsden hearing does not necessitate a finding that counsel should have been relieved.
Counsel will not be relieved just because a defendant asserts that he does not trust them or think highly of them. (People v. Memro (1995) 11 Cal.4th 786, 857 [" ` "[I]f a defendants claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law." [Citation.]"]; see also People v. Silva (1988) 45 Cal.3d 604, 622 ["the number of times one sees his attorney, and the way in which one relates with his attorney, [do] not sufficiently establish incompetence"].)
We are convinced that the trial court did not abuse its discretion in finding that there was no irreconcilable conflict between defendant and his attorney.
IV. Stogner v. California
Based upon Stogner v. California, supra, ___U.S.___ , defendant argues that the statute of limitations barred defendants prosecution for the offenses against Victim 1 and Victim 2. With respect to the offenses involving Victim 1, we agree.
In his original opening brief, defendant argued that Penal Code section 803, subdivision (g) violated due process and the ex post facto prohibition. After briefing was complete, the United States Supreme Court decided Stogner. We requested supplemental briefing on Stogners impact upon the offenses charged in this case.
Victim 1
The offenses against Victim 1 were alleged to have been committed between 1978 and 1983. Based upon the applicable statute of limitations, defendant could have been prosecuted for the offenses involving Victim 1 until October 7, 1989. Prosecution of defendant did not commence until 2000.
To avoid the statute of limitations, the prosecutor relied upon Penal Code section 803, subdivision (g). Penal Code section 803, subdivision (g) permits prosecution for otherwise time-barred crimes if the victim has reported an allegation of abuse to a law enforcement agency, there is independent evidence clearly and convincingly corroborating the victims allegation, and the prosecution commences within one year of the victims report. Thus, under Penal Code section 803, subdivision (g), prosecution is authorized for criminal acts committed many years previously—where the original limitations period has expired—so long as the prosecution is commenced within one year of the victims first complaint to a law enforcement agency.
Recently, in Stogner v. California, supra, ___ U.S.___ , the United States Supreme Court held that Penal Code section 803, subdivision (g) violates the ex post facto clause of the United States Constitution by reviving an expired statute of limitations. Among other things, the United States Supreme Court reasoned that Penal Code section 803, subdivision (g) "subjects an individual such as [defendant] to prosecution long after the State has, in effect, granted an amnesty, telling him that he is `at liberty to return to his country . . . and that from henceforth he may cease to preserve the proofs of his innocence, [citations]. [Citation.] It retroactively withdraws a complete defense to prosecution after it has already attached, and it does so in a manner that allows the State to withdraw this defense at will with respect to individuals already identified. [Citation.] `Unfair seems to us a fair characterization." (Stogner v. California, supra, ____ U.S.___ [123 S.Ct. at p. 2461.].)
Relying upon Stogner, defendant argues that he was wrongly convicted for the offenses involving Victim 1. The Attorney General concedes this point. Accordingly, we will reverse the judgment and remand for resentencing.
Victim 2
We reject defendants argument that Stogner invalidates his convictions for the offenses involving Victim 2. The offenses against Victim 2 were alleged to have been committed between January 29, 1988 and January 28, 1990. Based upon the applicable six-year statute of limitations, prosecution of defendant for the offenses involving Victim 2 was permitted through January 28, 1996. As with the offenses involving Victim 1, the prosecution avoided the statute of limitations for these offenses by relying upon Penal Code section 803, subdivision (g).
As noted above, Stogner held that Penal Code section 803, subdivision (g) violates the ex post facto clause of the United States Constitution by reviving an expired statute of limitations. Section 803, subdivision (g) became effective on January 1, 1994. (Stats. 1993, ch. 390, § 1, pp. 2224, 2226.) Since the applicable limitations period for the offenses involving Victim 2 did not run until January 28, 1996, section 803, subdivision (g) was not enacted after expiration of the application limitations period for the offenses involving Victim 2. Thus, applying section 803, subdivision (g) to defendant does not violate the ex post facto clause.
V. Cross-Admissibility of Evidence
Over defendants Evidence Code section 352 objection, defendants actions toward Victim 1 and Victim 2 were admitted under Evidence Code sections 1101 and 1108 on the issue of defendants guilt of the offenses involving Victim 3 and Victim 4. According to defendant, admitting the evidence for this purposes constituted an abuse of discretion. We disagree.
The evidence was admissible under Evidence Code section 1108, subdivision (a) because it satisfied the criteria for admissibility. (See, e.g., People v. Falsetta (1999) 21 Cal.4th 903, 917; People v. Branch (2001) 91 Cal.App.4th 274, 282.) First, the evidence was probative of defendants intent because defendant claimed the touchings of Victim 3 and Victim 4 were accidental. All four victims were young girls molested in a domestic setting.
Evidence Code section 1108, subdivision (a) provides, in pertinent part, that in a criminal action where the defendant is accused of certain sexual offenses, "evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by section 1101, if the evidence is not inadmissible pursuant to section 352."
Second, although the rapes of Victim 1 were more inflammatory than the molests of Victim 3 and Victim 4, that is not true with regard to the attack upon Victim 2.
Third, there was no problem of jury confusion such that "the jury might have been inclined to punish defendant for the uncharged offenses, regardless whether it considered him guilty of the charged offenses, . . ." (People v. Ewoldt (1994) 7 Cal.4th 380, 405.) All offenses were charged. Because the jury had the power to convict defendant of the offenses as to Victim 1 and Victim 2, it did not have an incentive to convict defendant of the later crimes solely to punish him for the molests of Victim 1 and Victim 2.
Fourth, even though the attacks upon Victim 1 and 2 were committed many years before the attacks upon Victim 3 and Victim 4, that is not a particularly compelling factor given the similarity between the offenses showing defendants steady and ongoing predation upon young girls in a domestic setting. (See, e.g., People v. Branch, supra, 91 Cal.App.4th at pp. 284-285 [30 years]; People v. Waples (2000) 79 Cal.App.4th 1389, 1393-1395 [15 and 22 years].)
Finally, there was no danger of undue consumption of time since the crimes against Victim 1 and Victim 2, being charged crimes, had to be proven anyway.
People v. Harris (1998) 60 Cal.App.4th 727, cited by defendant, differs sharply from the facts here. In Harris, the defendant, a mental health nurse, was convicted of sexual offenses against patients. The defendant argued that one victim consented to the activity and the other victim hallucinated the sexual encounter. Over defendants objection, the trial court had admitted evidence of defendants brutal and violent attack and rape upon a stranger 23 years earlier, which defendant committed by breaking into the victims apartment, leaving the victim bloody and beaten. The evidence left the jury with the impression that the rape had gone unpunished. Concluding that defendant was prejudiced by the admission of the evidence, the appellate court reversed. (Id. at pp.738-741.)
Without minimizing the offenses against Victim 1 and Victim 2, they did not, as was the case in Harris, depict a viciously beaten and bloody victim. Unlike Harris, there was no risk here of the jury being confused about the punishment imposed for the prior offenses. Unlike Harris, the evidence here was not such that it "did little more than show defendant was a violent sex offender." (People v. Harris, supra, 60 Cal.App.4th at p. 740.)
Because Stogner bars his convictions for the offenses involving Victim 1, defendant contends his argument that the trial court erred on the issue of cross-admissibility is even stronger. We disagree. At the time of defendants trial, section 803, subdivision (g) was still valid as applied to the offenses involving Victim 1. Thus, at the time of trial, those charges were properly before the jury. Accordingly, the trial court did not abuse its discretion in permitting the evidence of defendants molestations of Victim 1 and Victim 2 to be used to show his guilt of the offenses involving Victim 3 and Victim 4.
Because we conclude the evidence is admissible under Evidence Code section 1108, subdivision (a), we need not reach defendants claim that the evidence should not have been admitted under Evidence Code section 1101.
DISPOSITION
The judgment is reversed and the matter is remanded for resentencing.
WE CONCUR: PREMO, J., ELIA, J.