Opinion
A148438
08-30-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE ELEAZAR CRUZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-151354-8)
Defendant Jose Eleazar Cruz appeals, following a jury trial, from a conviction of one count of oral copulation of a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b)), three counts of forcible lewd acts upon a child (Pen. Code, § 288, subd. (b)(1)) and one count of lewd acts upon a child (id., subd. (a)), with added findings that counts 2 through 4 included substantial sexual conduct with a child under age 14 (Pen. Code, §§ 288, 288.5) and that counts 2 through 5 were committed against multiple victims (Pen. Code, § 667.61, subds. (b) & (e)). He raises two issues on appeal. The first is that the trial court prejudicially abused its discretion in excluding evidence that the victim's mother, who testified at the trial, was, herself, a victim of molestation. The second is that the clerk's minutes of the sentencing hearing contain an error that requires correction, an assertion with which the Attorney General does not disagree. We conclude there was no abuse of discretion in connection with the evidentiary ruling, but order the clerk's minutes corrected to reflect the sentence orally imposed.
BACKGROUND
On July 27, 2014, eight-year-old Jane Doe 1 told her mother (Mother) that defendant (Jane Doe 1's grandfather) put her on his bed, pulled down her pants and licked her vagina earlier that evening. Mother told her husband, who had just returned home from work. They confronted defendant. He denied doing anything and repeatedly asked what did he do.
Mother then took Jane Doe 1 to the hospital and staff performed a sexual assault and rape trauma (SART) exam. No male DNA was found. At the hospital, Jane Doe 1 repeated to the staff who performed her exam what she had told Mother. She also told the doctor who examined her that it "hurt 'down there,' [and] that there was burning with urination." The doctor was unable to determine what caused those sensations and did not "form any opinion as to the allegations in this case after examination." However, she stated that in the vast majority of cases involving prepubescent children who have been molested, the children have normal exams.
Two days later, a forensic interviewer spoke with both Jane Doe 1 and her sister, Jane Doe 2, at the Children's Interview Center (CIC). Jane Doe 1, who had promised her parents she would tell the truth, told the interviewer about three incidents. She first described the incident that had just occurred on July 27, when defendant pulled down her pants and licked her " 'down there,' " referring to "the part of your body where you go to the bathroom." She next described an incident that happened the day her brother was born (sometime in May), when defendant called her into his room, sat her on his lap, and reached down inside of her pants and touched her private area "on the skin," hurting her. Jane Doe 1 stated her " 'cookie,' " a word she used to refer to her vagina, "felt like a dog was scratching it." She also said defendant touched her on her "top area," directly on her skin. The third incident she described was of the first time defendant touched her, after he sat her on his lap and touched her vagina. She stated that she was trying to keep her legs closed and get away from defendant, but he held her "really, really tight." Defendant had told her not to tell anyone or "he would not like her anymore," and she told the interviewer she was "scared that if [she] told someone [defendant] would get mad."
The tapes of these interviews were admitted into evidence and played for the jury. --------
Jane Doe 2, who was then 12 years old, told the CIC interviewer that during the preceding month, in June, defendant slapped her on her butt, she smacked him back, and they had a water fight. She also stated that at some point on the night of the July 27 her aunts' father asked Jane Doe 1 if she was okay, and she saw defendant give Jane Doe 1 "a threatening look." Jane Doe 2 also recalled another incident in June where she asked defendant for something to eat and he made her sit on his lap and he touched her butt. Defendant told her not to tell anyone or he would "make sure that from touching your butt will become something serious," which Jane Doe 2 understood to mean "rape," or "his balls on-inside me."
Detective Cliff Calderan responded to the home around 4:30 a.m. on the morning of July 28. When he arrived, two other officers, Officer Ruben Munguia and Sergeant Lonso, were there. Officer Munguia knocked on the door and asked defendant's wife in Spanish if defendant was there. He was, and Officer Munguia arrested him. Officer Munguia then interviewed five people in the house, including A.R. and M.R., who were visiting and staying at the house at the time, and who were both minors.
Detectives Don Nelson and Daniel Campos interviewed defendant for a little over an hour at the station, with Detective Campos providing Spanish interpretation when needed. Defendant stated he was sorry for what he had done, but then claimed he had only kissed Jane Doe 1's tummy maybe a little below her belly button.
At some point during the interview, the detectives left defendant alone for 15 to 20 minutes to write an apology letter. Defendant wrote a letter to his daughter, the victims' Mother, "explaining that I had never done anything to the girl, but if she continued believing something like that, then, yes, I—I was asking for forgiveness but because I had not done anything to the girl. I did not have anything against her."
In late December 2014, Jane Doe 1 approached Mother, telling her she had " 'lied about what [she] said about [her] grandpa.' " She told Mother that her 12-year-old aunt, M.R., had told her to say things because she was mad at defendant. Mother went and talked to Jane Doe 2, and she stated that the same aunt told her to lie and say that defendant touched Jane Doe 1. She did not remember what the aunt said to convince her to lie. She stated that M.R.'s sister, A.R., was right there when the cousin told her to lie.
At trial, Jane Doe 1 (now 10 years old) and Jane Doe 2 (now 14) both recanted their prior version of events that they told to the forensic interviewer, hospital staff, and their parents. Jane Doe 1, for her part, said defendant just kissed her tummy while on the bed, that he had never done anything like that before and was just trying to make her laugh after she thought she saw a ghost, and that he never touched her inappropriately any other time. She testified that her aunt, M.R., told her to say defendant had done things to her because M.R. was mad at defendant for not giving her more money to spend at the mall. Jane Doe 2 could now not remember the water fight or ever playing with a hose with defendant. She too stated that M.R. told her to make up a story about defendant, telling her that this happens all the time in Mexico and nothing ever happens to the person.
A.R., who was 14 or 15 at the time of the July 27 incident, testified that either M.R. or Jane Doe 1 told her that defendant had pulled down Jane Doe 1's pants and touched her private parts. She had seen M.R. and Jane Doe 1 talking but was distracted talking on the phone with her own mother, who was in Mexico. She asked Jane Doe 1 if it was true, and Jane Doe 1 replied that it was. A.R. then took Jane Doe 1 up to Mother, and Jane Doe 1 told her what happened. A.R. stated Mother was shocked, and then took Jane Doe 1 and Father downstairs to speak with defendant. A.R. also testified that M.R. had no reason to be angry with defendant and that their father usually gave her money for the mall, not defendant.
Mother testified A.R. was "push[ing] my younger daughter (Jane Doe 1) to tell me" what happened. She stated that when Jane Doe 1 came to her in late December 2014, she believed "she was telling me the truth." She said, "I felt it. And I looked in her eyes and I saw that she was telling me the truth." About a week after New Year's, she called the district attorney's office and left a voicemail message requesting a meeting because she "didn't feel safe talking over the phone."
M.R. did not testify.
Defendant testified on his own behalf. He immediately denied molesting Jane Does 1 and 2. He stated he had given M.R. money earlier, and that she was angry with him because he said he would take her back to the mall later, but did not do so. Jane Doe 1 was in his room and she asked defendant to take her to the stairs because she was afraid. He testified that when he "saw her face, that she was like afraid, and I thought of making her laugh or something, and I made the mistake of raising her shirt and blow on her belly. I just did (noise) loudly to see if she would laugh, but she didn't laugh." He denied pulling down her pants, or even touching them. He also denied molesting Jane Doe 1 in May of 2014. Defendant also could not remember a water fight and spraying Jane Doe 2 with a hose and he denied slapping her butt.
The jury found defendant guilty as charged and found the special allegations to be true. Defendant moved for a new trial in part because he asserted the court erred in excluding evidence that Mother, herself, had been the victim of child molestation. The court denied his motion, found this was not an unusual case under Penal Code section 1203, subdivision (e), and sentenced defendant to 100 years to life, with 656 days' actual credit for time served.
DISCUSSION
The Trial Court Did Not Abuse Its Discretion in Excluding Evidence of Mother's Past Molestation
Defendant contends the trial court erred in excluding testimony about Mother's own childhood molestation. Specifically, he asserts Evidence Code section 1101 and 352 did not preclude admission of the evidence and its exclusion violated his Sixth Amendment (right to confrontation) and Fourteenth Amendment (right to due process) rights, requiring reversal.
This issue arose during Mother's testimony and was discussed at a sidebar, as to which the parties subsequently made a record. Defense counsel stated he had advised the court that he next wanted to ask Mother about her own molestation when she was six years old, which she had told him she had never disclosed until meeting with him. "She had essentially blocked it," and when Jane Doe 1 told her of the molestation that occurred on July 27, "this memory came flooding back" and "therefore her instincts were not only to . . . get her to the hospital as soon as possible, but she was highly sympathetic to her . . . and felt that this was her responsibility." Defense counsel maintained Mother's molestation "was part of her thinking process" and "explained her state of mind . . . of getting out of the house as quickly as possible." He further claimed it also lent "some power and credence to her belief in her daughter's recantation" that occurred six months later, in December. The prosecution maintained Mother's molestation was irrelevant, and other evidence demonstrated how Mother "felt" about her daughter's molestation, given her immediate response when her daughter reported it. The prosecutor further asserted the evidence would be prejudicial, as it "would have unduly endeared the jury to [Mother's] testimony" (which included that she believed her daughter's later recantation).
After the parties placed their positions on the record, the trial court stated it had precluded the defense from questioning Mother about her childhood molestation on the grounds "the information would be highly prejudicial and frankly not at all probative." "There are a myriad of factors," said the court, "which can influence a person's reaction to information," and there was no psychologist who was going to testify that Mother's molestation caused her to act the way she did. Further, why Mother acted as she did was "neither here nor there." In addition, information about Mother's molestation "would confuse or mislead the jury," given its tangential relevance. "[A] retrospective analysis" of Mother's thought process was "not probative" and would be prejudicial as it "would engender sympathy for the witness." "It would confuse them, mislead them into thinking about other areas which are irrelevant to this case."
Defendant raised the issue of Mother's childhood molestation again in his motion for a new trial. He continued to maintain the evidence would have "len[t] power" to Mother's testimony by "explain[ing] her conduct" in quickly making sure "her child was safe and went to the hospital" and also "put[] in perspective" her daughter's recantation, which Mother believed. Defense counsel acknowledged, however, the evidence would engender jury sympathy and that the case ultimately came down to whether Jane Does 1 and 2 told the truth in their CIC interviews or when they recanted at trial. The prosecution continued to maintain whether Mother believed her daughters' recantation was irrelevant.
The trial court denied a new trial. It seemingly acknowledged the evidence could have had some marginal relevance, in that Mother's failure to promptly report her daughters' recantation was in character with her failure to report her own molestation. But, explained the court, it had denied admission on Evidence Code section 352 grounds. It also observed the defense was essentially trying to use "character evidence" to "prove conduct" in violation of Evidence Code section 1101, subdivision (a). As the court saw it, the defense was trying to "bring in some act that happened to [Mother] long ago in her past to explain or describe her character and choices that she made for the actions that she did as an adult." "So with that said," the trial court stood by its "ruling with regard to [Evidence Code section] 352," although it "emphasize[d]" its view that the defendant sought to use the evidence for prohibited Evidence Code section 1101, subdivision (a), purposes.
As the record demonstrates, the trial court excluded evidence of Mother's own childhood molestation under Evidence Code section 352, deeming it to have exceedingly marginal relevance that was outweighed by jury sympathy and confusion it likely would engender.
In People v. Adames (1997) 54 Cal.App.4th 198 (Adames), the defendant, like defendant here, claimed the trial court improperly excluded evidence of the victim's mother's own molestation as a child. The defendant, also like defendant here, sought to introduce evidence that the mother had been molested "for the purpose of showing that such prior molestation affected [the mother's] belief or disbelief in [her child's] accusations." (Id. at p. 208.) The trial court, as did the court here, excluded the evidence on the ground it was "of marginal relevance" and "would tend to confuse the jury." (Ibid.) The Court of Appeal affirmed the evidentiary ruling. Although recognizing the evidence might "arguably have some bearing on [the mother's] credibility," on balance, the evidence "had minimal impact on the crucial issue of whether [the defendant] in fact committed the acts in question since [the mother] was not a percipient witness." (Id. at p. 209.) There was much more probative evidence, including the victim's statement to the police and a neighbor's testimony the defendant had admitted the molestation. (Ibid.) In short, said the court, the trial court "was well within its discretion in ruling that the potential prejudice flowing from the proffered line of cross-examination outweighed the only marginal relevance of the collateral inquiry into the history of the alleged molestation of [the mother] as a child, which would have created confusion regarding the real issue, i.e., did [the defendant] molest [the mother's child]." (Ibid.)
Although the more probative evidence in Adames differs from that in the instant case, our assessment of the record here leads us to the same conclusion that the appellate court reached in that case. Preliminarily, we do not agree with the Attorney General that evidence of Mother's own molestation as a child was wholly "irrelevant." It would have had some bearing on Mother's credibility and the weight to be given to her testimony. However, as the court in Adames pointed out, the "crucial issue" in the case was whether defendant committed the acts of molestation Jane Does 1 and 2 initially reported. (Adames, supra, 54 Cal.App.4th at p. 209.) And, as in Adames, there was other substantial evidence that was much more probative on that issue, including the statements Jane Does 1 and 2 initially made to Mother and the police, the statements Jane Doe 1 made during her hospital examination, and the statements Jane Does 1 and 2 made and their demeanor during the CIC interviews. Given the state of the record, the trial court did not abuse its discretion in concluding the marginal relevance of the evidence of Mother's childhood molestation did not outweigh the potential for prejudice and confusion of the jury. For the same reasons, defendant's Sixth and Fourteenth Amendment rights were not abridged. (See Adames, at p. 209.)
Minute Order Correction
At the May 13, 2016, sentencing hearing, the trial court denied probation and determined pursuant to Penal Code section 1203, subdivision (e), that this was not an "unusual" case. However, the clerk's minute order incorrectly states defendant was ineligible for probation pursuant to Penal Code section 12022.53, subdivision (g), which denies probation for use of a firearm during the commission of certain enumerated felonies. This case did not involve a firearm, and the parties agree the clerk's minute order from sentencing contains an error that requires correction.
DISPOSITION
The judgment is affirmed. The clerk of the superior court is directed to correct the minute order of May 13, 2016, to reflect that the trial court denied probation and found this case was not unusual pursuant to Penal Code section 1203, subdivision (e).
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.