Opinion
D081759
09-24-2024
THE PEOPLE, Plaintiff and Respondent, v. MARIO RIVAS GONZALEZ, Defendant and Appellant.
Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County, No. RIF2003771 Jeffrey J. Prevost, Judge. Affirmed.
Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
I. INTRODUCTION
Between October 23, 2018 and June 14, 2020, Gonzalez molested his granddaughter, K.H. (then between eight and 10 years old), when she visited him at his house. A jury convicted Gonzalez of four counts of lewd and lascivious acts committed upon a child under the age of 14, and the trial court sentenced Gonzalez to prison for 10 years.
On appeal, Gonzalez contends the trial court denied him his due process right to notice of the allegations supporting count 4. K.H. initially described that incident as involving Gonzalez touching her vagina with his hand. At trial, K.H. disclosed for the first time that the act underlying count 4 occurred when she and Gonzalez played a game K.H. referred to as "airplanes" (the airplanes incident), during which Gonzalez pressed his penis against K.H.'s vagina. The court originally admitted this evidence to show Gonzalez's propensity to commit sexual offenses, pursuant to Evidence Code section 1108. However, in response to the People's motion at the trial's conclusion, the trial judge changed this ruling to allow the "airplanes" testimony as substantive evidence supporting count 4.
Appellant does not here claim the trial court erroneously admitted the airplanes incident as propensity evidence pursuant to Evidence Code section 1108.
As we explain, we conclude Gonzalez's due process rights regarding count 4 were not violated. We therefore affirm his conviction.
Since appellant is contesting only count 4, our factual discussion is restricted to that charge, except as necessary to provide context.
A. K.H.'s Disclosure of the Sexual Abuse
K.H. was born in October 2010. Her parents divorced when she was eight years old. She lives with her mother, and visits her father every second, fourth, and fifth weekend of the month. When K.H. was eight or nine years old, she visited her father at her paternal grandparents' home, where her father then lived. All incidents of sexual abuse in this case occurred at K.H.'s paternal grandparents' home.
In July 2020, K.H. first disclosed the sexual abuse to her mother during a routine medical evaluation by responding "yes" to the question on a trauma screening questionnaire: "Has your child ever experienced sexual abuse?" In response, K.H. revealed one incident of abuse which K.H.'s mother relayed to the physician's assistant. The following night, K.H. disclosed to her mother two other molest incidents. The next day, K.H.'s mother called the police to report the abuse against K.H. The officer who took the call forwarded the information to the police department's detective bureau for investigation.
In August 2020, a Riverside County Child Assessment Team (RCCAT) specialist interviewed K.H. In that interview, K.H. described three incidents of sexual abuse resulting in four charges. We focus on the third incident, which is the basis for count 4, the only charge being challenged.
B. K.H.'s Descriptions of the Third Incident
1. K.H.'s Disclosure at RCAAT Interview of Third Incident
At the RCAAT interview K.H. described that the third incident occurred on June 14, 2020. During that sexual offense, Gonzalez and K.H. sat on the living room couch watching television when Gonzalez touched K.H.'s vagina over her clothes. Gonzalez's two sons, J. and G., were playing in the living room. This was the last time Gonzalez sexually abused K.H.
2. K.H's Description at Preliminary Examination of Third Incident
At the June 2021 preliminary hearing, the prosecution called two witnesses. Corona Police Department Officer Jonathan Velasco testified first. Officer Velasco discussed his July 2020 phone call with K.H.'s mother. He testified K.H.'s mother told him Gonzalez molested her daughter three times, and the most recent incident occurred on June 14, 2020. K.H.'s mother established this because K.H. knew the last time was on the day her father moved out of her paternal grandparents' home. K.H. did not know the exact date of the other two incidents. Officer Velasco testified that K.H. described the last molestation as Gonzalez using his hand to touch K.H.'s vagina over her clothes while they sat on the sofa downstairs watching television. This occurrence involved "the same stuff that occurred" during the first molest.
The investigating officer, Corona Police Department Detective Jesse Marquez, testified next. In August 2020, Officer Marquez investigated K.H.'s abuse allegations. He scheduled an RCCAT interview for K.H., which he observed through a closed-circuit television. He testified the third incident was similar to the first incident: While K.H. watched television downstairs, Gonzalez sat down next to her and placed his hand on her vagina.
C. Learning of the Airplanes Incident-Evidence Code Section 402 Hearing
Trial commenced on May 10, 2022. On the afternoon of Friday, May 13, after jury voir dire concluded but before opening statements, the prosecutor met privately with K.H. and her mother. During the meeting, K.H. disclosed the airplanes incident, which the prosecutor described as "additional details in regards to one of the incidents." The prosecutor called an investigator into the room, memorialized K.H.'s statement, notified defense counsel at 4:54 p.m. on the same day, and provided the audio recording and report to defense counsel the following Monday.
There is no allegation that the prosecutor withheld this newly discovered evidence from the defense.
The court granted defense counsel's request for a one-day continuance to investigate K.H.'s new statements. Defense counsel explained "the new allegations are of [a] different nature than the previous allegations," potentially there was another witness involved, and she needed to speak to Gonzalez.
The following day, the court noted it received defense counsel's Evidence Code section 352 motion in limine to prohibit the introduction of the airplanes incident evidence under Evidence Code section 1108. Defense counsel stated the new allegations "are of a significantly more potentially offensive nature" and "a deviation from what has previously been alleged throughout . . . this case." She believed allowing the new allegations into evidence created a substantial danger of undue prejudice, jury confusion, and would cause jurors to hold Gonzalez accountable for an incident not alleged in the information.
Evidence Code section 1108, subdivision (a), provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."
The prosecutor countered that the airplanes incident evidence was admissible under Evidence Code section 1108 or as substantive proof supporting count 4. She argued the new allegation did not represent more severe conduct, as it did not involve penetration, oral copulation, or touching under the clothing. Accordingly, she argued the airplanes incident was the same as what was currently charged in count 4: "[I]t is similar conduct just the two private parts being touched to one another as opposed to other parts of the body." She further argued any prejudicial value the court found would not substantially outweigh the probative value of the evidence, and any confusion of the issues could be clarified through direct and cross-examination of K.H. and by the court instructing the jury with CALCRIM No. 1191A (jury may use evidence of uncharged sex offenses to show propensity to commit sexual assaults).
CALCRIM No. 1191A provides in pertinent part: "If you decide that the defendant committed the uncharged offense[s], you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses and based on that decision, also conclude that the defendant was likely to commit [and did commit] [sex offense], as charged here."
The court ruled it would admit the evidence under Evidence Code section 1108. The court noted it was a "close question," but any potential prejudice would be minimized by giving jurors the CALCRIM No. 1191A instruction. The court found the evidence was probative to the extent that it bolstered K.H.'s credibility regarding Gonzalez's intent in committing the charged conduct.
At defense counsel's request the court conducted an Evidence Code section 402 hearing to better understand K.H.'s new information pertaining to count 4. At that hearing, K.H. testified the last time Gonzalez sexually abused her occurred when the two played "airplanes" in the living room of her paternal grandparents' home. Gonzalez picked her up by her armpits, swung her around, sat down on the couch while holding her, laid back with his feet hanging off the couch, and "pressed his private against [her] private" for a few seconds.
Evidence Code section 402, subdivision (b), provides in pertinent part: "The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury ...."
After the hearing, the trial court expressed concerns about the testimony surrounding the airplanes incident and its significance to count 4. Specifically, the court wondered, "[W]hether [K.H. is] talking about the third incident occurring in a different manner than what she's previously stated . . . at least in the RCCAT . . . or whether this is supplemental information." The People said the new testimony described the event "in a different manner," with K.H. giving more detail. But the prosecutor also said she would accept admitting the evidence as a different sexual offense to prove defendant's propensity to commit sexual assaults. (See People v. Dworak (2021) 11 Cal.5th 881, 900 [Evid. Code § 1108 allows admission of propensity evidence in sexual assault trials].) Defense counsel argued the third incident testimony was "an inconsistent statement" because the RCCAT version of the event was not incomplete and needed no elaboration.
The court then expressed concerns about (1) whether the airplanes incident evidence would confuse jurors as to what exactly transpired in the third sexual assault, (2) whether introducing the airplanes incident into evidence under Evidence Code section 1108 suggested the court made a finding that a separate sexual assault occurred, and (3) whether the airplanes incident might be taken by the jury as substantive proof of the third incident. After more discussion with counsel the court ruled the airplanes incident would come into evidence under Evidence Code section 1108. Also, since the prosecution would be using other evidence to prove count 4, the court would give the jury a limiting instruction explaining the airplanes incident was admitted only for showing Gonzalez's propensity to commit sexual offenses.
D. K.H.'s Description at Trial of the Third Incident
At trial on May 17, 2022, K.H. testified about the third molestation incident, that occurred on June 14, 2020. K.H. recounted appellant lifting her up by the armpits and swinging her around. K.H. referred to this as "playing airplanes." After K.H. provided a brief summary of the airplanes incident, the court instructed the jury with CALCRIM No. 1191A.
Following this instruction, K.H. gave further details about the airplanes incident. K.H. explained that instead of dropping her on the couch at the end as appellant usually did, he sat on the couch, and leaned back; at this point, K.H. was no longer in the air but was standing on the couch with one foot on either side of Gonzalez, facing towards him with her "private against his private." K.H. and Gonzalez were both fully clothed. Afterward, K.H. got off the couch and walked away. When confronted with the different statement she gave to the RCCAT specialist about the third incident of abuse, K.H. explained that she initially minimized Gonzalez's conduct during this incident because she did not want to upset her mother.
After trial testimony concluded and during the jury instruction conference, the prosecutor informed the court she withdrew her request for a CALCRIM No. 1191A instruction. The prosecutor explained she initially believed the airplanes incident was a separate incident than the original count 4, but now believed the airplanes incident was the third incident and substantive proof of count 4. The defense opposed, stating the airplanes incident should only be admitted into evidence under Evidence Code section 1108 because it was not proved at the preliminary hearing. Further, defense received no notice that this testimony would be used to prove count 4.
After a hearing later that afternoon, the court reversed its ruling that the airplanes incident was admissible under Evidence Code section 1108, and determined instead that this testimony was admissible as substantive evidence to support count 4. The court explained that the prosecution should not be "penalized" for K.H.'s original "misstatement" of the facts when she had "a legitimate reason for mischaracterizing her initial statement to law enforcement." The court acknowledged the potential prejudice to Gonzalez based upon the late discovery of the airplanes incident evidence but believed the prosecution was entitled to prove their case according to the current recollection of K.H., and if K.H. gave false statements, that would affect her credibility in the entire case.
III. DISCUSSION
Gonzalez argues the trial court's admission of the airplanes incident into evidence as substantive proof of count 4 violated his due process right to fair notice of the charges against him. We disagree.
A. Due Process Right to Notice of the Charges
1. Standard of Review
"The standard of review of constitutional questions is independent judgment, 'but with deference to underlying factual findings, which we review for substantial evidence, viewing the record in the light most favorable to the ruling.'" (People ex rel. Bill Lockyer v. Fremont Life Ins. Co. (2002) 104 Cal.App.4th 508, 514; quoting City and County of San Francisco v. Sainez (2000) 77 Cal.App.4th 1302, 1313.)
2. Due Process Considerations
Notice of the specific charges is among the constitutional rights of every accused in a criminal proceeding. (People v. Anderson (2020) 9 Cal.5th 946, 953 [due process requires that a criminal defendant be given fair notice of the charges against him or her so he or she may have a reasonable opportunity to prepare a defense and avoid unfair surprise at trial]; accord, People v. Jones (1990) 51 Cal.3d 294, 317 (Jones) ["The 'preeminent' due process principle is that one accused of a crime must be 'informed of the nature and cause of the accusation.' (U.S. Const., Amend. VI.)"].) The California "Supreme Court explained, this right to defend oneself 'has two related components, namely, the right to notice of the charges, and the right to present a defense to those charges.'" (People v. Sorden (2021) 65 Cal.App.5th 582, 605, italics omitted (Sorden), quoting Jones, at p. 317.)
In Jones, the California Supreme Court balanced a defendant's due process rights with the difficult problems of proof in child molestation cases. The court recognized a young victim-or even an adult-"assertedly molested over a substantial period by a parent or other adult residing in his home, may have no practical way of recollecting, reconstructing, distinguishing or identifying by 'specific incidents or dates' all or even any such incidents." (Jones, supra, 51 Cal.3d at p. 305.) Accordingly, the Jones court decided the constitutional due process requirements are different in child molestation cases.
The Jones court found that "the defendant has no right to notice of the specific time or place of an offense, so long as it occurred within the applicable limitation period." (See Jones, supra, 51 Cal.3d at p. 317.) "[T]he 'modern answer' to . . . how [a] defendant can prepare a defense against nonspecific molestation charges 'is that, at a minimum, a defendant must be prepared to defend against all offenses of the kind alleged in the information as are shown by evidence at the preliminary hearing to have occurred within the timeframe pleaded in the information.'" (Ibid.) The court concluded that, "given the availability of the preliminary hearing, demurrer and pretrial discovery procedures, the prosecution of child molestation charges based on generic testimony does not, of itself, result in a denial of a defendant's due process right to fair notice of the charges against him." (Id. at p. 318.)
With respect to the right to present a defense, the Jones court concluded that the victim's inability to recall or relate specific dates, locations, or other details of the offenses did not inevitably preclude a defense. (Jones, supra, 51 Cal.3d at p. 319.) Jones observed that alibi or identity defenses were rarely raised in resident child molester cases. (Id. at pp. 299, 319 [a" 'resident child molester' either lives with his victim or has continuous access to him or her"].) Usually, trial centered on the relative credibility of the accuser and the accused. (Id. at p. 320 ["In some cases, the very nonspecificity of the child's testimony, especially if uncorroborated, may offer defense counsel fertile field for challenging the child's credibility."].)
B. Analysis
Here, the information and the evidence produced at the preliminary hearing provided Gonzalez with notice of the charged act in count 4. The original complaint, the information, and the first amended information all charged Gonzalez with a lewd and lascivious act committed on or about June 14, 2020, upon a child under the age of 14. (§ 288, subd. (a), count 4.)
The People charged the June 14, 2020 incident as count 1 in the original complaint. After the preliminary hearing, the prosecution re-ordered the charges, and the June 14 event became count 4.
At the preliminary hearing, in line with K.H.'s disclosure to her mother and the RCCAT specialist, both of the prosecution's witnesses testified the June 14, 2020 incident involved Gonzalez touching K.H.'s vagina with his hand, over her clothes, on the living room couch in her paternal grandparents' home. At trial, K.H. testified the June 14 incident involved "playing airplanes" with Gonzalez, and Gonzalez pressing his genital area against hers, with both parties fully clothed, on the living room couch in her paternal grandparents' home.
We disagree with Gonzalez's assessment that the airplanes incident was a "dramatic departure" and "completely different" from how K.H. described the third incident of abuse in the RCCAT interview. Rather, we conclude that the differences between the two accounts are not material. (See People v. Lamarr (1942) 20 Cal.2d 705, 711 ["The test of the materiality of a variance is whether the . . . information . . . correctly informs the defendant of the criminal act with which he is charged [so] that, taking into consideration the proof which is introduced against him, he is not misled in making his defense, or placed in danger of being twice put in jeopardy for the same offense."].) Both at preliminary hearing and trial, the details taken together reflected the sexual assaults occurred within the same time period as that charged in the first amended information. Further, the testimony reflected the event occurred in the same location, involved similar conduct-touching of genital areas over clothing, and involved the same victim. K.H. consistently said the third incident involved Gonzalez touching her vagina over her clothes on the living room couch in her paternal grandparents' home.
Moreover, the airplanes incident evidence did not establish a different Penal Code violation, an additional charge, or the potential for additional punishment. The variance Gonzalez complains of here is a difference between the allegation of over the clothing genital-to-genital contact rather than over the clothing hand-to-genital contact; this difference, as highlighted by Jones, is immaterial. We conclude the airplanes incident evidence provided additional details, or an inconsistent statement by K.H., about the third incident.
Accordingly, we independently find the evidence presented at the preliminary hearing supported the number of offenses charged against Gonzalez and covered the time frames charged in the first amended information. This gave Gonzalez the Constitutional notice he required. (See People v. Jeff (1988) 204 Cal.App.3d 309, 341-342 ["The information . . . tells a defendant what kinds of offenses he is charged with and states the number of offenses that can result in prosecution. However, the time, place, and circumstances of charged offenses are left to the preliminary hearing transcript. This is the touchstone of due process notice to a defendant. [Citation.] So long as the evidence presented at the preliminary hearing supports the number of offenses charged against defendant and covers the timeframe(s) charged in the information, a defendant has all the notice the Constitution requires."].)
Gonzalez points to K.H.'s conflicting testimony about when the third incident occurred as proof K.H.'s original allegations in support of count 4 could not be connected with the airplanes incident she described at trial. We are not convinced. Officer Velasco testified at the preliminary hearing that K.H. knew the third incident occurred on June 14, 2020. At trial, K.H. could not remember the exact date of the third incident, but recalled it occurred about two years ago, when she was nine years old, and possibly on the same day as the event in another charge. Regardless of whether K.H. recalled the exact date of the third incident at trial, she consistently stated that incident occurred about two years ago when she was nine years old, which is around the date reflected in count 4. Further, the conflict in K.H.'s testimony regarding the exact date of the abuse is understandable and consistent with the Jones court's recognition of the inherent problems of proof in child molestation cases. (Jones, supra, 51 Cal.3d at p. 305.)
Gonzalez attempts to distinguish his case from our decision in Sorden. In Sorden, defendant appealed from a judgment following his conviction for contempt of court for violating a domestic violence criminal protective order. (Sorden, supra, 65 Cal.App.5th at p. 588.) Defendant claimed he was denied due process when the trial court allowed the jury to consider evidence of cell phone tracking that was not presented at the preliminary hearing. (Id. at pp. 588, 603.) This court rejected defendant's argument, stating: "The error in [defendant's] reasoning is that he is focusing on the evidence presented at the preliminary hearing and at trial (which was different), rather than on the offense alleged in the information, shown at the preliminary hearing, and proven at trial (all of which was the same, i.e., a violation of [the charged statute]." (Id. at p. 606.)
As in Sorden, here the charge alleged in count 4, the evidence at the preliminary hearing, and the evidence at trial (including testimony not presented at the preliminary hearing) all dealt with a violation of section 288, subdivision (a). (See Sorden, supra, 65 Cal.App.5th at p. 607.) Gonzalez, like the defendant in Sorden, mistakenly equates whether there was a violation of section 288, subdivision (a), with how that statute was violated. (See Sorden, at p. 607.) While the details of the way in which Gonzalez touched K.H. differed in K.H.'s testimony, the overall substance of the act in support of count 4, touching her vagina over the clothing in the living room of her paternal grandparents' home, remained the same throughout the case.
The cases Gonzalez relies on to support his claim of inadequate notice are inapplicable. For instance, Gonzalez cites People v. Pitts (1990) 223 Cal.App.3d 606. Pitts involved allegations that numerous adults committed multiple lewd acts upon numerous minors, over a prolonged period of time. (Pitts, at pp. 634-635.) The Pitts court reversed the convictions on charges not supported by evidence at the preliminary hearing because the variance between the preliminary hearing and trial evidence was not simply a matter of time and place; rather, it pertained to the type of conduct, the identity of the victim, and the identity of the perpetrator. (Id. at pp. 903-914.)
Gonzalez also relies on People v. Burnett (1999) 71 Cal.App.4th 151 (Burnett), which is not a child molestation case. In Burnett, a witness testified at the preliminary hearing that the defendant possessed a .38-caliber revolver during the crime. (Id. at p. 164.) At trial, however, the prosecution presented evidence, not mentioned at the preliminary hearing, that at a different time on the same date the defendant possessed a different gun, a .357-caliber revolver. (Id. at pp. 164, 169.) In closing argument, the prosecutor told the jury the defendant had possessed two different guns and, accordingly, he could be convicted of the possession charge based on the description of either gun. (Id. at pp. 167, 169.) The Burnett court concluded, "There can be no question that the evidence in this case showed two completely different incidents, involving two separate weapons ...." (Id. at p. 169.)
The Burnett court distinguished "sexual abuse cases involving testimony by a given victim about acts occurring over a period of time that cannot necessarily be tied to specific dates or locations." (Burnett, supra, 71 Cal.App.4th at p. 175.) In such cases, the "evidence at the preliminary hearing will at least generally describe the incidents upon which criminal conduct is predicated, subject to the inherent limitations of the subject matter with which those cases dealt." (Ibid.) The Burnett court found the case before it distinguishable because the evidence "[did] not involve a single witness describing separate acts of a similar nature but rather distinct witnesses to distinct incidents that could have been (although they were not required to be) charged as separate offenses." (Ibid.)
Other cases cited by Gonzalez, People v. Dominguez (2008) 166 Cal.App.4th 858 and People v. Graff (2009) 170 Cal.App.4th 345, are also unhelpful to Gonzalez's argument. In Dominguez, unlike here, the evidence presented at trial fell outside of the time period charged in the complaint and presented at the preliminary hearing. (Dominguez, at pp. 861-862, 866.) In Graff, the charges added at trial were charges the magistrate dismissed at the preliminary hearing for lack of evidence. (Graff, at p. 367.)
We therefore conclude the trial court did not deny Gonzalez due process of law when it allowed the jury to consider the airplanes incident evidence as substantive proof in support of count 4.
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., CASTILLO, J.