Opinion
C079607
01-23-2017
THE PEOPLE, Plaintiff and Respondent, v. JUAN JIMENEZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12F00446)
A jury convicted defendant Juan Jimenez of eight counts of being a person 18 years of age or older who engaged in sexual conduct (sexual intercourse, sodomy, oral copulation, and digital penetration) with a child 10 years of age or younger (Pen. Code, § 288.7, subds. (a) (counts one through four) and (b) (counts five through eight); unless otherwise set forth statutory section references that follow are to this code). The court sentenced defendant to state prison for an aggregate term of 160 years to life.
Defendant appeals. He contends the trial court prejudicially erred in admitting evidence of his character for violence to impeach the credibility of his father. We disagree and affirm the judgment.
FACTS AND PROCEEDINGS
In November 2008, the two-year-old victim's mother started dating defendant. In 2011, the then five-year-old victim reported to her aunt (mother's sister) that defendant made her play "boyfriend and girlfriend" and did "nasty things" to her. When the aunt asked the mother about it, the mother dismissed it, claiming the victim had made it up.
In December 2011, the victim stayed at her aunt's house for several nights. One night, the victim told her aunt that defendant made her do "nasty" things - he put his "private" in her mouth, vagina and butt until "boogery stuff comes out." The victim stated that defendant shoved a blanket in her mouth to keep her quiet during the abuse. The victim stated that the abuse occurred multiple times at the homes of her mother, her great uncle, defendant's father, and his next door neighbor. The victim stated that defendant threatened to kill her if she told anyone about the abuse. The aunt called the victim's father who spoke to the victim. The victim told her father that defendant had done "nasty things" to her and made her suck on his penis.
On December 1, 2011, the victim's aunt and father took the victim to the hospital where the victim spoke with a police officer. The victim recounted the following incident which occurred at her mother's house on November 26, 2011. While the victim's mother was away from the home, defendant forced the victim to suck on his penis and instructed her not to bite or use her teeth. Her mouth was sore because he made her do it for a long time. When "boogers" came out, he instructed her to swallow and she did. He also put his penis in her butt and vagina, causing a lot of pain. He used a blanket to cover her mouth and her screams. She said the abuse occurred several times. Afterwards, the victim saw blood on her butt and vagina. The victim did not tell her mother because the victim did not think her mother would believe her.
A physical exam on December 2, 2011, revealed a small red spot on the victim's hymen. The cause was indeterminate. A doctor reviewed the reports and opined that the red spot was inflammation, indicating trauma, which could be from sexual abuse, accidental abuse, or irritation of the tissue. A week later, the red spot was gone. The doctor explained that tissue involved in sexual trauma heals quickly.
On December 7, 2011, during a videotaped SAFE interview, which was played for the jury, the victim described the abuse. The victim stated that defendant made her suck on his penis and he put his penis in her vagina and butt, and his fingers in her butt more than one time. She stated that the abuse occurred on different days at her mother's house, at defendant's house, at her uncle's house, and "anywhere." The victim used pictures to aid her description. The victim stated that defendant pushed his penis into her really hard and it hurt and made her cry, causing blood to come out of her.
The victim, eight years old at the time of defendant's trial, testified that she was embarrassed to discuss defendant's abuse, explaining that he did things to her that she "wasn't supposed to know about when [she] was little." Defendant touched her vagina and butt, used his hand and penis, did it more than one time, did it at her house, the home of defendant's father, and the home of the neighbor of defendant's father. Defendant covered her with a blanket during one of the incidents. Defendant told her not to tell anyone about the abuse. After the abuse, she saw blood in the toilet. She put her mouth on his penis one time and "slime" came out - defendant told her it was "medicine" and to swallow.
On December 8, 2011, officers went to a residence to arrest defendant. Upon arrival, officers saw defendant talking to his father in the front yard but defendant then went into the back of the property, jumped over a fence, and ran away. He was ordered to stop but defendant ignored their orders even after he was warned a dog would be sent to chase him down. The dog assisted in defendant's capture.
The victim's mother testified that the victim was two years of age when mother began her relationship with defendant with whom mother had subsequently had two children. Mother explained that defendant did not work from February 2011 through December 2011 and she left the children with him two to three times a month when she left the house. When mother first learned of the abuse, mother went with two of her sisters to their uncle's house to talk to the victim. At the end of a 10-minute conversation, the victim said she made it up. At the beginning of December 2011, mother's sister told her that something bad had happened to the victim. When mother spoke with the victim several days later, the victim stated that defendant had put his penis in her vagina, butt, and mouth until "boogers" came out. Mother noted that the victim occasionally told untrue stories. For example, the victim claimed mother clothed her with clothes found on the street and that mother beat and drowned her.
A detective collected several blankets, two of which were identified by the victim as having been used during the abuse. The blankets were sent to a lab for testing. The parties stipulated that areas of genetic material cut from two blankets was tested and analyzed. From the brown and tan cowboy blanket, sperm fractions were from an unknown male and nonsperm fractions were from an unknown female. Minor alleles were consistent with carryover from the sperm fraction. Both defendant and the victim's father were excluded as contributors. From the red and white dog and cat blanket, mixtures of sperm and nonsperm fractions were inconclusive for comparison purposes due to the uncertainty in the number of contributors.
Defendant's father testified for the defense. He claimed that defendant, mother, their children, and the victim stayed overnight at the house of defendant's father about four times a month in 2011. They stayed a whole month (February 2011) when they were homeless. The house of defendant's father has one bathroom and two bedrooms for six people. When defendant's family stayed, there were at least 10 people in the house. Defendant's father believed that defendant was never alone with the victim in the house. Defendant's father claimed that defendant treated the victim as his own daughter. She was not afraid of defendant.
One day in February 2011, when defendant's father intervened in an argument between defendant and mother, defendant punched his father in the mouth. During a scuffle, a gun fell from defendant's waistband. Defendant's father picked up the gun and called the police. Defendant's father denied being afraid of defendant.
The next-door neighbor of defendant's father had a four-bedroom house with nine to 11 occupants, four of whom were adults and present 24 hours a day. Defendant, mother, their children, and the victim visited on more than one occasion. The victim called defendant "dad" and did not seem to be afraid of him. The neighbor admitted that there were times when defendant and the victim were at his house without the victim's mother.
A friend of defendant testified that when defendant's family visited, the victim referred to defendant as "dad" and she did not seem to fear him. The friend opined that defendant was trustworthy around children.
A clinical psychology professor testified as a defense expert and opined that the SAFE interview was deficient for failing to explore the victim's initial retraction which is "very rare" in sexual abuse cases. The expert testified that although most allegations of child abuse are true, some children lie due to suggestibility. The expert believed it was unusual for a molester to abuse a child in a house with lots of people present. The expert explained that a child's knowledge of sexual matters may have been gained from peers, television or the Internet. The expert testified that a significant percentage of children delay reporting abuse.
DISCUSSION
Defendant contends the trial court erroneously admitted evidence of his character for violence, i.e., the incident during which he punched his father in the face, and a gun fell from his waistband. The People respond that the evidence was admissible to impeach the credibility of defendant's father and in any event, the error was harmless. We do not find any error.
Prior to the defense evidence, defense counsel acknowledged that the court had ruled that should defendant testify, he could be impeached with his conviction for gun possession. Defense counsel sought to preclude the facts underlying that conviction. He represented that defendant's father would testify about the number of people living in his house and whether he saw defendant alone with the victim. The prosecutor sought to question defendant's father about the incident in February 2011, when defendant's father intervened in an argument between defendant and mother, defendant punched his father in the mouth, defendant's father told the police that defendant had threatened to kill mother and that it was the second time defendant had punched him, and a loaded gun fell from defendant's waistband. The prosecutor argued the evidence "potentially" went to the credibility of defendant's father and was relevant. Defense counsel argued the incident was not relevant because there was no evidence that defendant's father was or ever had been afraid of defendant and the incident was more prejudicial than probative.
The trial court ruled that except for defendant's threat to kill mother, the evidence was "highly probative" on the credibility of defendant's father and whether it would shape his testimony "as a result of that fear." The court concluded that the probative value was not substantially outweighed by the prejudice. The court intended to give a limiting instruction to consider the evidence on the credibility of defendant's father.
Defendant's father thereafter testified and claimed defendant was never alone with the victim in his house. Defendant's father claimed someone was always present besides defendant and the victim.
Defendant's father testified on cross-examination that when defendant was at his father's house with the victim, he knew their whereabouts at all times and they were never out of his sight. Defendant's father did not recall defendant and the victim ever being at his house without mother. The prosecutor then asked defendant's father about the February 2011 incident when defendant punched him. Defendant's father admitted the details of the incident and that defendant was violent during the incident. Defendant's father denied being afraid of defendant or being afraid of getting punched in the mouth or being afraid of the gun defendant had been carrying.
In closing, the prosecutor argued that defendant's father had a motive to minimize defendant's culpability because he was afraid of defendant. The court instructed the jury on the limited use of the evidence - solely for the purpose of evaluating the credibility of defendant's father.
Defendant argues the trial court erred in allowing the prosecutor to impeach defendant's father with the February 2011 incident, resulting in a denial of due process and a fair trial. Defendant asserts there was no evidence, only speculation, that defendant's father shaded his testimony because he feared defendant. Since the prosecutor had no basis to believe defendant's father feared defendant, defendant argues the trial court abused its discretion in allowing the prosecutor to ask defendant's father about the February 2011 incident, which showed defendant's unrelated assaultive conduct and possession of a firearm.
The People concede that there was no direct evidence that defendant's father feared defendant. The People argue, however, "the rational inference from the evidence that [defendant] had punched [his father] and carried a gun in his waistband was that [defendant's father] feared [defendant] and, thus, had a motive to lie on his behalf." The People claim it was "up to the jury to decide whether [defendant's father] testified truthfully when he said that he was not scared of [defendant]."
"We review for abuse of discretion a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code . . . [section] 352. [Citations.]" (People v. Harrison (2005) 35 Cal.4th 208, 230.) Relevant evidence is "evidence, including evidence relevant to the credibility of a witness . . . , having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) "The trial court is vested with wide discretion in determining the relevance of evidence . . . [but] has no discretion to admit irrelevant evidence." (People v. Babbitt (1988) 45 Cal.3d 660, 681.) "Because the court's discretion to admit or exclude impeachment evidence 'is as broad as necessary to deal with the great variety of factual situations in which the issue arises' [citation], a reviewing court ordinarily will uphold the trial court's exercise of discretion [citations]." (People v. Clark (2011) 52 Cal.4th 856, 932.)
Evidence Code section 780 provides, in relevant part: "Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: [¶] . . . [¶] (f) The existence or nonexistence of a bias, interest, or other motive."
"A party can offer evidence, by proffered extrinsic evidence or by cross-examination of a witness, to attack the credibility of a witness, if such evidence tends reasonably to establish that the witness has a motive to fabricate, or some other motive, that tends to cause the giving of untruthful testimony, even though there may be no reasonable basis for the existence of such a motive. [Citations.]" (People v. Allen (1978) 77 Cal.App.3d 924, 931, fn. omitted.)
" 'Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible.' [Citations.] An explanation of the basis for the witness's fear is likewise relevant to the jury's assessment of his or her credibility and is well within the discretion of the trial court. [Citation.] For such evidence to be admissible, there is no requirement to show threats against the witness were made by the defendant personally or the witness's fear of retaliation is 'directly linked' to the defendant. [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1141-1142.)
People v. Mendoza (2011) 52 Cal.4th 1056, 1086 rejected the view that evidence of a witness's fear in testifying is inadmissible unless the witness's trial testimony is inconsistent. "[E]vidence that a witness testifies despite fear is important to fully evaluating his or her credibility. [Citation.] The logic of this rationale does not hinge on whether the witness gave prior inconsistent testimony." (Ibid.) "[I]n order to introduce evidence of the witnesses' fear, the prosecution was not required to show that their testimony was inconsistent with prior statements or otherwise suspect." (People v. Valdez (2012) 55 Cal.4th 82, 135-136.)
We note that defendant claims neither the prosecutor nor the trial court relied on Evidence Code section 780, subdivision (f). We disagree. In any event, " ' "[n]o rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for the wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." ' [Citation.]" (People v. Brown (2004) 33 Cal.4th 892, 901.)
The jury was entitled to consider the underlying circumstances of the February 2011 incident in evaluating the testimony of defendant's father because the evidence had a tendency in reason to affect his credibility. Despite defendant's father's denial that he was afraid of defendant, a reasonable person may well be fearful of such a violent person after having been punched in the mouth twice which would explain the father's denial and which bore on his credibility. The prosecutor's theory behind defendant's father's alleged motive to fabricate was not speculative.
Defendant's father's testimony significantly conflicted with the victim's claim that defendant molested her in defendant's father's home. Defendant's father claimed that could not have happened because defendant was never alone with the victim. Defendant's father claimed he knew the whereabouts of defendant and the victim whenever they visited and they never visited without mother. Defendant's father's testimony was significant because it supported the defense theory that the victim had fabricated or had false memories about all of the incidents of molestation, not just those at defendant's father's home. Defendant's father's credibility was a material issue and thus it was proper to admit evidence tending to show that he was fearful and provided a motive not to tell the truth and to minimize defendant's culpability.
The evidence was not unduly prejudicial given the charges and evidence of the violent offenses defendant committed against the victim. We conclude that evidence was not erroneously admitted under Evidence Code section 352. Moreover, the trial court gave a limiting instruction. (People v. Burgener (2003) 29 Cal.4th 833, 870.) Finally, since there was no error, we are not called upon to discuss or decide defendant's argument that the error alleged is of constitutional dimension. (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.)
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J. We concur: MAURO, J. MURRAY, J.