Opinion
E052047 Super.Ct.No. INF065758
09-30-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE HERIBERTO ROMERO, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Alana Butler, Sabrina Y. Lane-Erwin, and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Graham Anderson Cribbs, Judge. Affirmed.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Alana Butler, Sabrina Y. Lane-Erwin, and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant Jose Heriberto Romero guilty as charged of having unlawful sexual intercourse with a person under age 16 while he was over age 21 (Pen. Code, § 261.5, subd. (d); count 1) and committing a lewd act on a person under age 16 and more than 10 years his junior (Pen. Code, § 288, subd. ( c)(1); count 2). The trial court sentenced defendant to three years eight months in prison, but suspended the prison sentence and placed defendant on probation for three years. Defendant was also ordered to serve 180 days in jail. Defendant appeals.
The sentence consisted of the middle term of three years on count 1, plus eight months, or one-third the middle term of two years, on count 2.
The victim, Jane Doe, was age 15 when the offenses were committed between January and July 2008; defendant was 26 and 27 years old. Jane testified that she and defendant had sexual intercourse three times in a hotel after January 2008 and before she ran away from her mother's home in May 2008. Between May and July 22, 2008, Jane lived with defendant in his brother Mario's home, where she and defendant had intercourse many more times. Defendant and Jane's stepfather had been good friends, but Jane's and defendant's families had become estranged by 2008, and Jane's mother very much disliked defendant and his entire family.
Defendant also testified. He admitted giving Jane money and his "protection" while she was away from her mother's home in 2008, and that Jane lived in his brother Mario's home for three months between May and July 22, 2008. He denied ever having sexual intercourse with Jane, however, and claimed he was frequently out of state working as a long-haul truck driver when the offenses allegedly occurred. Jane's stepfather had been "like a father" to defendant, but Jane's and defendant's families had been estranged since 2004.
Defendant claims the trial court prejudicially erred in refusing to admit evidence that Jane may have falsely accused him of having sexual intercourse with her. The excluded evidence consisted of either impeachment or affirmative evidence that (1) Jane had either falsely or truthfully accused two other men, including defendant's brother Yoni Anariva, of having had unlawful sexual intercourse with her in 2006 and 2007, before she allegedly had sexual intercourse with defendant in 2008; (2) Jane's mother had encouraged Jane to falsely accuse defendant of committing the present crimes; and (3) Jane had been under the care of a psychiatrist or had taken psychiatric drugs.
We find no abuse of discretion. Furthermore, there is no reasonable probability that defendant would have realized a more favorable result had any of the excluded evidence been admitted. In addition to Jane's testimony, the circumstantial evidence and DNA evidence strongly indicated that defendant and Jane had sexual intercourse while the two of them were living in Mario's home. It is highly unlikely that any of the proffered impeachment or affirmative evidence that Jane may have fabricated the charges would have convinced the jury that no sexual intercourse occurred.
The lewd and lascivious act charged in count 2 (Pen. Code, § 288, subd. (c)(1)) was based on one of the alleged instances of unlawful sexual intercourse.
II. BACKGROUND
A. Prosecution Evidence
1. Jane's Testimony
Jane was 17 years old when she testified at trial in June 2010. She first met defendant when she was age 13 and he worked with her stepfather. She met defendant at her mother's house. Jane and defendant began having a "dating relationship" in January 2008, when she was age 15 and he was age 26. The relationship began when Jane called defendant, he asked her to "[g]o out" with him, and she said "[y]es."
After they began dating, Jane and defendant met "[e]very day" at 3:30 p.m. after Jane had attended school. Defendant would pick up Jane at her bus stop and later drop her off near her home. Defendant did not take Jane directly home because her mother was not allowing her to see him. Jane described her relationship with her mother as "[b]ad."
Jane moved out of her mother's home in May 2008, when she was still age 15 and still dating defendant. She lived in a friend's home for two or three days, then she spent two more days living in the home of defendant's brother Paoul. She left Paoul's home to live with defendant in the home of defendant's other brother, Mario. Jane and defendant shared a room in Mario's house. Jane already knew Mario, and defendant introduced Jane to Mario's wife and to some of his friends as his "girlfriend."
Jane moved out of Mario's house on July 22, 2008, and moved back in with her mother. During the time they lived in Mario's house, Jane's relationship with defendant was "going well." They lived together "like a normal couple." Jane and defendant first had sexual intercourse while they were living in Mario's house, and had intercourse there "[m]any" times. Defendant turned age 27 while he and Jane were living in Mario's house.
Jane initially testified that after she moved out of Mario's house on July 22, she and defendant had sexual intercourse three more times in a hotel. Then Jane testified that on July 24, she spoke with Sergeant Radames Gil at the Desert Hot Springs Police Department, and told him she had had sexual intercourse with defendant at a hotel before she and defendant moved into Mario's house. Jane then changed her prior testimony and said she had sex with defendant "[t]wo [or] three" times in a hotel before she and defendant moved into Mario's house. The police became involved because her mother contacted them.
Jane and defendant always used a condom during intercourse except the last time they had sex on July 22, the day Jane moved out of Mario's house. Jane's relationship with defendant ended on July 22 because her mother did not want her to see defendant. At some point during their relationship, Jane told defendant she was only 15 years old. Defendant told Jane they could not be together because of her young age and because they could "have problems." At trial, Jane felt "[s]ad" about defendant because she did not want him to "get into trouble."
On cross-examination, Jane testified she had a "crush" on defendant after she first met him when she was age 13. At that time, defendant and her stepfather were "good friends," and worked together for years. When Jane was still age 13, some "bad blood" developed between Jane's and defendant's families. Jane's mother disliked defendant's entire family, including defendant.
In 2006 and 2007, Jane was living in San Francisco. During that time, she did not see or speak with defendant, and they never called each other. In January 2008, Jane moved back to her mother's home in Cathedral City. On January 25, she briefly saw defendant at her school while he was there picking up a male friend. Defendant did not know Jane was attending the school. Several days later, Jane called defendant, defendant asked her whether she wanted to be his "girlfriend," and she said "[y]es."
After she ran away from home in May 2008, Jane asked defendant to help her. She told him she was hungry and needed money. She believed he felt sorry for her because of her poor relationship with her mother, and because she had been "thrown out of the house." Jane was a "runaway" during May to July 2008 because she had run away from her mother's home.
While Jane and defendant were living in Mario's home, defendant was often gone for several days at a time, including weekends, because he was employed driving a large truck. He also played soccer on Sundays.
When her relationship with defendant ended on July 22, 2008, Jane was in love with defendant but knew she could not marry him. Defendant had asked her to marry him and she said "[y]es." During their relationship, Jane wrote a note saying, "I hate Jose Romero" "[f]or all my life," because she was angry with defendant. She was not angry with defendant because he told police where they could find her—at his friend Ruth's house—after her mother went to the police. On redirect examination, Jane denied testifying to anything because her mother told her to say it or to please or displease her mother.
2. Additional Prosecution Evidence/DNA Evidence
On July 24, 2008, police seized a sheet from the bed defendant and Jane shared in Mario's home. The sheet was seized because police had information that Jane and defendant had sex on it during the morning of July 22. Police also collected DNA samples from Jane and defendant, who cooperated in providing the sample. Sperm cells matching defendant's DNA profile were found on the sheet, though the criminalist could not say how long the sperm cells had been on the sheet. The sheet also had a nonsperm cell fraction mixture that matched defendant's and Jane's DNA profiles. B. Defense Evidence
Defendant testified in his own defense. He had known Jane's family for many years and used to work for her stepfather, who was "like a father" to him. That relationship ended "with a fight" around 2004. Defendant first met Jane in 2006, when she was age 13, and he did not see or speak to her again until 2008 when he unexpectedly saw her at her school. She was very excited to see him and said "[h]ello"
Thereafter, Jane called defendant and asked him for money, telling him she had "escaped her mother's mistreatment" and needed money to live. Defendant was out of the state working at the time, but arranged to give Jane money through a friend. Thereafter, he gave Jane money "[m]any times" and provided her with a place to stay at his brother Mario's home. He gave Jane his "protection" because he believed she felt he was the only person who could protect her.
Defendant denied ever having sexual intercourse with Jane. He also denied asking her to be his girlfriend because she was a minor, and denied telling her he would marry her when she became an adult because he was already in a commitment. It was impossible for him to have gone to a hotel with her because the hotel would have asked for identification, a credit card would have been used, and there would have been a videotape of him registering at the hotel. When asked whether he ever planned on marrying Jane, defendant responded, "Well, maybe when she's of age, but I don't think so."
During 2008, defendant lived in his brother Mario's house on Saturdays and Sundays. On Sundays he played soccer. He was often out of town during the week working as a truck driver for a long-haul trucking company. When he was in town, he stayed in the bedroom to the right of the entrance. He believed Jane slept in his room when he was not there. He did not wash his bed sheets every time he used his bed because he was "never home." Though Jane stayed in his brother Mario's house for three months during 2008, she stayed in at least one other home during that time.
III. DISCUSSION
Defendant claims the trial court prejudicially erred in excluding evidence that Jane may have falsely accused him of having sexual intercourse with her. He argues the court should have allowed his counsel to cross-examine Jane concerning whether (1) she had falsely or truthfully accused two other men, one of whom was defendant's brother, Yoni Anariva, of sexual misconduct against her; (2) her mother had abused and pressured her into falsely accusing defendant; and (3) whether she had been under the care of a psychiatrist or had taken psychiatric mediations. We find no abuse of discretion. In any event, any error in excluding the evidence was harmless. A. Background
1. Jane's Accusations Against Two Other Men
The prosecution filed a motion in limine to exclude evidence that defendant's brother, Yoni Anariva, had engaged in sexual acts with Jane in 2006, when Jane was age 13 and Anariva was age 21. During a subsequent investigation, Anariva admitted that in May 2006 he went to Jane's home and "engaged in various acts of sexual conduct with [her], including kissing, undressing her, fondling and kissing her breasts and orally copulating her vagina." Anariva also told officers he had a brother named Jose Romero; he and Romero worked at the same construction company as Jane's stepfather, and he met Jane one day when he went to her home to visit her stepfather. Anariva was charged with two counts of committing a lewd act on Jane when she was under age 14. (Pen. Code, § 288, subd. (a).) Following a November 2007 preliminary hearing, he was charged with five counts of violating Penal Code section 288, subdivision (a) with Jane as the victim. On July 30, 2008, he pled guilty to two of the counts and was sentenced to six years in prison.
During defendant's November 2009 preliminary hearing, Jane admitted, over the People's objection, that she had accused Anariva of molesting her, there was "bad blood" between her and defendant's families, and her family, including her mother, disliked defendant's family "very much, an awful lot, a great deal."
In its motion, the prosecution requested that the evidence concerning Jane's sexual encounter with Anariva be excluded on the ground it was inadmissible to attack Jane's credibility. Alternatively, the prosecution asked that if the court found the evidence "relevant for some purpose," that it follow the procedures set forth in Evidence Code section 782 in determining whether to admit any portion of the evidence.
All further statutory references are to the Evidence Code unless otherwise indicated.
Evidence Code section 782 applies to various sex crime prosecutions, including prosecutions for violating Penal Code section 288. Evidence Code section 782 requires that, when the defense wishes to present evidence of the sexual conduct of a complaining witness to attack the witness's credibility under Evidence Code section 780, the defense must make a written motion setting forth an offer of proof, based on an affidavit, of the relevancy of the evidence to the witness's credibility. (Evid. Code, § 782, subd (a)(1), (2).) If the courts find the offer of proof sufficient, it shall order a hearing outside the presence of the jury, if any, and allow the witness to be questioned regarding the offer of proof. (Id. at subd. (a)(3).) If at the conclusion of the hearing the court finds the proffered evidence relevant under Evidence Code section 780 and not inadmissible under Evidence Code section 352, it may make an order stating what evidence the defendant may introduce and the nature of the questions to be permitted. (Evid. Code, § 782, subd. (a)(4).)
Defense counsel opposed the motion to exclude the evidence concerning Anariva on the ground it was relevant to Jane's credibility in accusing defendant of having committed similar sex crimes against her. Defense counsel stressed that defendant was actually the third person Jane had accused of sexual misconduct. The first incident involved Anariva; the second involved a man in San Francisco who was married to Jane's aunt. Defense counsel argued that the evidence of both instances was probative of whether Jane had an ulterior motive in accusing defendant of committing similar crimes.
Regarding the San Francisco incident, defense counsel explained that, according to defendant, Jane was living in San Francisco with her aunt and the aunt's husband during 2006 and 2007. During that time, Jane accused the husband of molesting her and he was deported. The prosecutor said the only information she had about the incident had come from defendant. She had no other information "of any kind" concerning whether the incident had occurred or "anything about it." She also pointed out that even if the San Francisco incident occurred, it would have involved nonconsensual sexual contact and would be "fully irrelevant" to the consensual sexual relationship between Jane and defendant. Defense counsel said she had not had an opportunity to investigate the incident because she could not contact Jane, and asked that the prosecutor question Jane about the incident.
The trial court excluded any evidence concerning Anariva and the San Francisco incident. Regarding the San Francisco incident, the court reasoned that the present case had been "in the system" for two years and it was too late to investigate the incident. Regarding Anariva, the court said it would think defendant "would not want" the incident involving his brother "touched [on] in any way, shape or form in light of the fact that it led to a conviction" of Anariva.
2. Jane's Mother's Abusiveness and Jane's Psychiatric Care
In addition, the prosecution filed a trial brief in which it asked the court to exclude evidence that Jane's mother had been physically or verbally abusive toward her, that Jane had been removed from her mother's care, and that her mother had been taken into custody for abusing Jane. Also in its trial brief, the prosecution sought to exclude evidence that Jane had been under psychiatric care, had spoken to a psychologist or other mental health worker regarding the case, or had taken psychiatric meditations. The prosecution argued that none of these matters were relevant to the charges against defendant, and the defense should be precluded from questioning Jane concerning these matters.
The court and counsel also discussed these matters outside the presence of the jury and before any witnesses were called. The defense sought to question Jane, but not present affirmative evidence, concerning her mother's physical and verbal abuse of Jane on the ground that that evidence, coupled with the "bad blood" between Jane's mother and defendant's family, tended to show that Jane's mother had pressured Jane or that Jane had a motive to fabricate the charges against defendant. The prosecutor pointed out that, at the preliminary hearing, Jane testified she had never spoken to her mother about the case. The court ruled that defense counsel could conduct a "limited" inquiry of Jane concerning her relationship with her mother, to show why Jane ran away from home and ended up with defendant, but not to show that Jane had a motive to fabricate the charges or was pressured to fabricate the charges against defendant.
At the preliminary hearing, Jane responded "no" when asked whether her mother knew she was "taking [defendant] to court" for having sex with her.
Regarding Jane's possible psychiatric care or use of psychiatric drugs, defense counsel said she had no intention of questioning Jane about such matters. Defense counsel pointed out that Jane answered "no" when asked about these matters at the preliminary hearing. Still, defense counsel said she would like to explore these matters if contrary evidence came up during the trial. No such evidence came up during the trial, however. B. Analysis
At the preliminary hearing the court sustained the People's objections to defense counsel's questions whether Jane had ever had any psychiatric care, had ever spoken to a psychologist or mental health worker regarding the matter involving defendant, or had taken any psychiatric medication before coming to court to testify.
In criminal prosecutions generally, "[c]ross-examination to test the credibility of a prosecuting witness in a criminal case should be given wide latitude." (Curry v. Superior Court (1970) 2 Cal.3d 707, 715.) But a criminal defendant does not have an unfettered or "absolute right" to cross-examine witnesses. (People v. Brown (2003) 31 Cal.4th 518, 545.) Instead, the trial court may impose "reasonable limits" on the defendant's cross-examination of witnesses "based on concerns about harassment, confusion of the issues, or relevance." (People v. Box (2000) 23 Cal.4th 1153, 1203, citing Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.)
Section 780 provides that: "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 [or her] testimony at the hearing, including . . . . [¶] . . . [¶] (f) The existence or nonexistence of a bias, interest, or other motive." (Italics added.)
The trial court also has "substantial discretion" to exclude impeachment evidence under section 352. (See People v. Thornton (2007) 41 Cal.4th 391, 428-429.) "[R]eliance on . . . section 352 to exclude evidence of marginal impeachment value . . . generally does not contravene a defendant's constitutional rights to confrontation and cross-examination." (People v. Brown, supra, 31 Cal.4th at p. 545.) We review a trial court's rulings on the admissibility of impeachment evidence under the deferential abuse of discretion standard. (People v. Thornton, supra, at p. 428.)
Section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Here the trial court did not abuse its discretion in refusing to allow defendant to cross-examine Jane concerning (1) her prior accusations of sexual misconduct against two other men; (2) whether her mother's abusiveness toward her or her mother's animosity toward defendant and his family had prompted or motivated her to fabricate the charges against defendant; or (3) whether she had been under the care of a psychiatrist or had taken any psychiatric medications. All of this evidence was of exceedingly marginal impeachment value. Moreover, its marginal probative value on the issue whether Jane had a bias or motive to fabricate the charges against defendant was substantially outweighed by the probability its admission would have confused the issues and misled the jury.
Defendant argues that, even if his brother Anariva molested Jane in May 2006, the point of adducing evidence that Jane had accused him of doing so was to show that the incident was the source of the "bad blood" between defendant's and Jane's families, and Jane, therefore, had a bias and motive to fabricate the charges against defendant. The jury heard, however, that there was "bad blood" between the two families when Jane ran away from home and began living with defendant in May 2008. It is difficult to see how impeaching Jane with evidence that defendant's brother had molested her two years before defendant took up with her would have helped defendant's defense that he did not have sexual intercourse with Jane.
Indeed, if the jury heard that Anariva pled guilty to and was sentenced to six years in prison for molesting Jane, it is unlikely to have concluded, based on that evidence, that Jane was motivated to fabricate the charges against defendant. Anariva's preliminary hearing was held in November 2007, before Jane began dating defendant in January 2008 and began living with him in May 2008. Defendant admitted he gave Jane money and his "protection" while she was away from her family in 2008 and that he cared for Jane. The undisputed friendship between Jane and defendant in 2008, after Jane accused Anariva of molesting her, would have substantially undermined any inference that Jane was motivated to falsely accuse defendant of having sexual intercourse with her because of anything Anariva did or did not do to her.
Defendant relies on several cases in which the courts found it was error to preclude defense questioning of the alleged victims concerning their prior accusations against others. (See, e.g., People v. Hurlburt (1958) 166 Cal.App.2d 334, 335 [reversible error to exclude impeachment evidence that child victim had falsely accused another of committing a similar sex offense]; People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 597-600 [harmless error to exclude evidence that alleged victim had falsely accused another of breaking into her home and trying to sexually assault her]; People v. Adams (1988) 198 Cal.App.3d 10, 16-19 [reversible error to exclude evidence that alleged rape victim had falsely accused others of rape].) In each of these cases, the proffered impeachment evidence was relevant and highly probative concerning whether the victim had falsely accused the defendant. Here, by contrast, the proffered impeachment evidence that Jane had falsely or truthfully accused others was of marginal probative value on the question whether she was falsely accusing defendant, and was properly excluded under section 352.
Similarly, any questioning of Jane concerning whether she had accused her aunt's husband of committing some type of sexual misconduct against her in San Francisco in 2006 or 2007, for which the husband was allegedly deported, would have had had little to no bearing on whether Jane had a bias or motive to falsely accuse defendant. Moreover, the prosecution and the defense knew very little about the San Francisco incident, including whether any molestation, prosecution, or deportation had actually occurred. As the trial court indicated, the defense had two years to investigate the matter, and made an insufficient offer of proof that the matter had any tendency to show a bias or motive on the part of Jane to fabricate the charges against defendant. (§ 782.) Given the insufficient offer of proof, the evidence was properly excluded. (See People v. Fontana (2010) 49 Cal.4th 351, 362.) Likewise, the defense made no offer of proof that Jane had ever been under the care of a psychiatrist or had taken psychiatric medications, or that if she had it had a tendency in reason to show that Jane had a motive or bias to fabricate the charges. (§ 782.) Thus, the trial court properly precluded the defense from questioning Jane concerning her mental health history.
Additionally, if the jury heard that defendant knew about the San Francisco incident during 2008, and before he had sex with her on July 22, 2008, it likely would have held the incident against him and concluded he was taking advantage of a young girl who had been sexually abused—not only once by his own brother, but also by another man in San Francisco.
Defendant further argues his inability to question Jane concerning the extent of her mother's physical and verbal abuse of her, or the "depth and extent of [the] rift" between Jane and her mother and "the reasons for it," deprived him of the ability to show that Jane's mother pressured or motivated her to falsely accuse him. Jane testified that she went back to live with her mother on July 22, 2008. Defendant maintains that, at that point, Jane's mother may have pressured her to falsely accuse defendant, not only because she disliked defendant and his family, but also because she blamed defendant for interfering with her relationship with Jane.
Again, however, the jury heard that Jane's family, including her mother, disliked defendant and his family, and there had been "bad blood" between the families for years before Jane ran away from home in May 2008. The jury also heard that Jane's mother contacted the police in July 2008, but Jane had not spoken with her mother about the charges against defendant. Any further inquiries concerning the nature or extent of the "rift" between Jane and her mother, or the reasons for it, would have unduly consumed court time, confused the issues, and misled the jury. (§ 352.) C. Harmless Error
Even if any of the proffered impeachment evidence should have been admitted, it is not reasonably probable its admission would have affected the outcome in defendant's favor. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Fudge (1994) 7 Cal.4th 1075, 1102-1104 [proper standard of review for erroneous exclusion of defense evidence is the reasonable probability standard].) The only disputed issue was whether any sexual intercourse occurred between Jane and defendant between January and July 2008.
The other elements of the crimes charged in counts 1 and 2—the ages of Jane and defendant, were undisputed.
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In addition to Jane's testimony that she and defendant had sexual intercourse many times during this period, the DNA evidence strongly indicated they had intercourse. The DNA evidence conclusively showed that defendant's semen and Jane's DNA were on the same portions of defendant's bed sheet. Though the defense argued that Jane's DNA could have come from sources other than her vaginal fluids, including her skin, sweat, tears, or saliva, it was more likely, as the prosecutor argued, that Jane's vaginal fluids became mixed with defendant's semen on the same portions of the bed sheet.
Additionally, the undisputed circumstantial evidence strongly indicated that Jane and defendant had sexual intercourse. Jane and defendant both testified that Jane and defendant were living in the home of defendant's brother Mario between May and July 22, 2008. Defendant testified he gave Jane money and his "protection" during this period. The only question was whether any sexual intercourse occurred between the two of them. Given the undisputed evidence that they were living under the same roof, and that defendant was giving Jane money and his protection, defendant's claim he never had sexual intercourse with Jane was difficult to believe. It is highly unlikely that any of the proffered impeachment evidence would have helped the defense, and much more likely it would have undermined any chance defendant had of raising a reasonable doubt that any sexual intercourse occurred.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
King
J.
We concur:
Ramirez
P.J.
Richli
J.