Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No. VCF205557, Joseph A. Kalashian, Judge.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Kane, J. and Poochigian, J.
Defendant Daniel Lopez was convicted of various crimes arising from the sexual molestation of his stepdaughter (the victim). On appeal, his sole contention is that the trial court erred by failing to sua sponte instruct with CALCRIM No. 359 on the corpus delicti requirement. Concluding the error was harmless, we will affirm.
PROCEDURAL SUMMARY
On August 12, 2008, the Tulare County District Attorney charged defendant with three counts of sexual intercourse or sodomy with a child 10 years of age or younger (§ 288.7, subd. (a); counts 1, 3, 5), 12 counts of lewd or lascivious act by force or fear upon a child under 14 years of age (§ 288, subd. (b)(1); counts 2, 4, 6, 8, 10, 12, 13-18), three counts of oral copulation or sexual penetration with a child 10 years of age or younger (§ 288.7, subd. (b); counts 7, 9, 11), and two counts of willfully inflicting upon a child cruel or inhuman corporal punishment (§ 273d, subd. (a); counts 19, 20). The information further alleged as to counts 2, 4, 6, 8, 10, 12, and 13 through 15 that defendant had substantial sexual contact with a child under 14 years of age (§ 1203.066, subd. (a)(8)).
A jury found defendant guilty on all counts and found the special allegations true. The trial court sentenced defendant to an aggregate determinate term of 11 years, plus an indeterminate term of 25 years to life.
FACTS
The nine-year-old victim told her teenaged cousin that defendant, the victim’s stepfather, had been sexually molesting her since she was eight years old. The cousin and three other female relatives took the victim to the police station.
In her statement, the victim told the detective that, when her mother was at work, defendant made her suck his private part, then put his private part in her butt, which made her bleed. He did this more than 20 times in the master bedroom with the door locked. She had not told her mother or anyone else because defendant threatened to spank her if she did. A recording of this interview was played for the jury. The detective scheduled an examination of the victim by the Sexual Abuse Response Team (SART).
Officers arrested defendant at his work place and took him to the police station. When the detective and another officer interviewed him, he initially denied touching or abusing the victim. But as the officers urged him to tell the truth and told him things would go better for him if he did, he eventually admitted sodomizing the victim “one time only.” Then he admitted it happened “[a]bout two times only, ” then “[l]ike about three” times. He denied engaging in oral copulation, but eventually admitted that the victim orally copulated him.
At no time did the officers threaten or physically hit defendant. They used no physical violence. Nor did they ask defendant to remove his clothing. The interview was recorded on a digital audio recorder that the detective placed in the middle of the table. He did not stop the recorder until the interview was over. The recording of this interview was played for the jury.
At the SART interview conducted by a forensic specialist, the victim described in detail what defendant did to her and what he made her do to him. The acts included sodomy, oral copulation, vaginal penetration, and fondling. Defendant would pull his penis out through a “hole” in his underwear. The abuse occurred nearly every day when the mother was at work. Defendant told the victim he would spank her hard if she told anyone what they were doing. The video of this interview was played for the jury.
A forensic nurse examiner made no findings that showed the victim had been sexually assaulted. The nurse testified it is common to find no injuries in sexually abused children. Anal injuries, for example, usually heal within 24 to 48 hours. The absence of findings did not mean the victim had not been sexually abused.
At trial, the victim recanted her statements. She denied having been molested by defendant and claimed she had lied about the allegations because her cousin and aunt told her what to say and promised her toys and clothes in return. She said she felt bad because her mother was sad that defendant was gone.
The victim’s 11-year-old brother testified that defendant hit him and his sisters with a belt. He said the victim told him defendant “did something gross” to her that had to do with body parts.
The victim’s mother said defendant admitted injuring the children with a belt. At one time, the mother found blood in the victim’s panties, but there was nothing about defendant’s relationship with the victim that caused her concern about molestation. She said the victim had trouble having bowel movements, but the victim explained to her it was because she did not drink enough water. Although defendant did not threaten the mother with violence, he threatened to take their baby and leave. Since defendant was taken into custody, mother cried often and was having financial and emotional difficulties. Defendant tried to reach her every day after he was arrested.
The parties stipulated that the mother told defendant to leave the house when she saw the injuries he had inflicted on the victim’s younger sister. Defendant did not want to leave, so he told the mother he would take their baby and call immigration on her. He told her that, as a citizen, he could leave with the baby and she would have no recourse. Defendant sent the mother a letter from jail, professing his love and asking forgiveness. Mother turned over this letter and three others to the police.
Some of the victim’s relatives testified that no one told the victim what to say, no one described sex acts to her, and no one promised to buy her anything in return for reporting the abuse. They bought her clothes because she had nothing to wear after she was removed from the home.
A psychologist testified that 24 percent of sexual abuse victims eventually recant their allegations. The most common reason for a child to recant is family pressure. A child who observes the negative effects on family members might think she could improve the situation by recanting.
The victim’s eleven-year-old cousin testified that the victim told her she felt bad about telling what happened with defendant.
Defense Evidence
A sexual assault nurse examiner reviewed the victim’s examination and concluded she appeared normal. Her normal anal area was inconsistent with having been sodomized more than 20 times, although any injury would likely have healed within 48 hours. The lack of findings did not mean the victim had not been abused.
Defendant testified on his own behalf, claiming the police coerced him into confessing. When he denied abusing the victim, the detective stopped the recorder, pushed him against the wall, and threw him to the floor. The officers took him to a different room, stripped him naked, threatened and beat him, and tasered his testicles. When they returned to the interview room, the officers told him to confess when they turned the recorder back on. The officers turned off the recorder two or three times. Defendant was scared and did not want to be hurt again, so he confessed. At trial, defendant denied all sexual contact with the victim. He admitted hitting the other children with a belt, leaving marks.
Defendant’s wife said she never saw any change in the victim’s behavior toward defendant, and the victim’s grades did not decline.
Rebuttal
The detective and the other officer denied that they ever stripped, threatened, beat, or tasered defendant. Neither of them carried a taser or firearm during the interview, and they never stopped the recorder or removed defendant from the interview room. The detective also explained that if his digital audio recorder had been stopped and started, it would have started a new recording with a new number.
DISCUSSION
The corpus delicti of a crime consists of two elements: (1) the fact of the injury or loss or harm and (2) the existence of a criminal agency as its cause. (People v. Jones (1998) 17 Cal.4th 279, 301.) The principal purpose of the corpus delicti rule is to ensure that the accused does not admit to a crime that never occurred. (People v. Carpenter (1997) 15 Cal.4th 312, 394; People v. Alvarez (2002) 27 Cal.4th 1161, 1169 [“rule is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened”].) Thus, the prosecution must establish a corpus delicti independent of the defendant’s extrajudicial admissions or confessions. (People v. Jones, supra, at p. 301.)
Proof of the corpus delicti may be entirely circumstantial. (People v. Jones, supra, 17 Cal.4th at p. 301 .) The prosecution’s burden consists only of making a prima facie showing “‘permitting the reasonable inference that a crime was committed.’” (People v. Jennings (1991) 53 Cal.3d 334, 364.) The inference need not be “the only, or even the most compelling, one”; it must merely be “a reasonable one ….” (Id. at p. 367.) “The amount of independent proof of a crime required for this purpose is quite small; [the Supreme Court has] described this quantum of evidence as ‘slight’ [citation] or ‘minimal’ [citation].” (People v. Jones, supra, at p. 301.) The corpus delicti rule is not interpreted “so strictly that independent evidence of every physical act constituting an element of an offense is necessary. Instead, there need only be independent evidence establishing a slight or prima facie showing of some injury, loss or harm, and that a criminal agency was involved.” (Id. at p. 303.)
When a defendant’s extrajudicial statements form part of the prosecution’s evidence, the trial court must instruct sua sponte that “a finding of guilt cannot be predicated on the statements alone. [Citations.]” (People v. Alvarez, supra, 27 Cal.4th at p. 1170, fn. omitted.) The trial court’s failure to so instruct is harmless error if “it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. [Citations.]” (People v. Beagle (1972) 6 Cal.3d 441, 455-456, superseded by statute on other grounds as stated in People v. Castro (1985) 38 Cal.3d 301, 307-313; People v. Watson (1956) 46 Cal.2d 818, 836.) When “the corpus delicti is convincingly established independently of admissions[, ] the error of the omission of that instruction cannot be deemed as reversible. [Citations.]” (People v. Beagle, supra, at p. 455.)
CALCRIM No. 359 provides: “The defendant may not be convicted of any crime based on (his/her) out-of-court statement[s] alone. You may only rely on the defendant’s out-of-court statements to convict (him/her) if you conclude that other evidence shows that the charged crime [or a lesser included offense] was committed. [¶] That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [¶] The identity of the person who committed the crime [and the degree of the crime] may be proved by the defendant’s statement[s] alone. [¶] You may not convict the defendant unless the People have proved (his/her) guilt beyond a reasonable doubt.”
In this case, the trial court’s failure to instruct on the corpus delicti requirement was harmless because the victim’s statements fully established the corpus delicti independently of defendant’s confessions. The victim explained in detail during her interviews that defendant molested her several times in various manners. This evidence alone was sufficient to establish that a crime had been committed against her. Defendant stresses that the victim recanted her statements at trial, but this did not render those statements inadmissible. Indeed, the victim’s prior inconsistent statements were admissible not only for impeachment purposes but “to prove their substance as well.” (People v. Hawthorne (1992) 4 Cal.4th 43, 55, fn. 4; Evid. Code, §§ 770, 1235.) We conclude it is not reasonably probable an outcome more favorable to defendant would have resulted had the trial court instructed with CALCRIM No. 359. (People v.Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment is affirmed.