Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07WF0920, David A. Hoffer, Judge.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury convicted defendant Isaias Camacho Salazar of three counts of committing a lewd act on a child under 14 years of age (Pen. Code, § 288, subd. (a); all statutory references are to the Penal Code unless noted) and misdemeanor battery (§ 242). The jury also found true the allegation he committed the offenses against more than one victim. (§§ 667.61, subds. (a)-(e), 1203.066, subd. (a)(7).) Salazar argues the trial court violated his constitutional rights by admitting testimony from the mother of the minor victims describing their disclosure of sexual abuse. For the reasons expressed below, we modify the judgment to correct custody credits, but otherwise affirm the judgment.
I
Factual and Procedural Background
Between February 2004 and January 2005, A.M. and her common law husband, Isaias, Jr., lived in her brother-in-law Francisco’s two bedroom apartment in Orange. The couple had three daughters and a son, all of whom shared the apartment with numerous paternal relatives, including her father-in-law Salazar. A.M.’s family and Salazar slept in the living room. In February 2005, A.M. and her family moved to a nearby one bedroom apartment in Garden Grove. Salazar lived with them for about two months in late 2005 or early 2006.
On October 6, 2006, A.M. celebrated her birthday with a party at their apartment. Salazar attended the party. After the other guests departed, A.M. and her husband told Salazar to spend the night because he was intoxicated and they did not want him to drive.
Salazar slept on a sofa in the living room. A.M. and her husband also slept in the living room on a floor mat. The children slept in the bedroom. A few hours after falling asleep, A.M. awoke to find Salazar touching her bare breasts and performing oral sex on her. A.M. screamed. A.M.’s husband confronted Salazar, who protested, “it’s not what it looks like.” A.M.’s husband ordered his father to leave.
Three or four weeks after the birthday incident, A.M.’s daughter G.S. (born September 1995) tearfully told A.M. she wanted to talk. G.S. disclosed Salazar inappropriately touched her, prompting A.M. to call the Garden Grove Police Department. G.S.’s complaint also reminded A.M. that when the family lived in Orange, her youngest daughter K.S. (born October 1997) revealed that Salazar had touched her “little butt.” A.M. believed her daughter meant a spanking and did not believe Salazar would act inappropriately with her daughter.
A.M.’s oldest daughter, 15-year-old D.S. (born December 1993), testified Salazar sexually touched her on three or four occasions. One incident occurred soon after she began living in Orange, before her mother joined them in California. After going to sleep, D.S. awoke to feel Salazar’s hand down her pants, and his hand went “inside” of her. After removing his hand, he tried to put his hand down her sister G.S.’s pants, but D.S. pulled his hand away, or hit him on his hands with her fists, and she pulled her sister away from him. He also attempted to slide his hand under their blankets.
A second incident occurred after her mother arrived in Orange. D.S. awoke to find Salazar pulling her left hand close to his “parts.” She covered herself up.
On the night of her mother’s birthday party, Salazar came into the bedroom and tried to pull D.S.’s pants down. She woke up, began hitting or kicking him, and he crawled out of the room. D.S. found out the next day that Salazar had done something similar with her mother.
D.S. also testified Salazar tried to touch her breasts during a massage while her parents were at work. Another time he exposed himself in the kitchen and told her he wanted to have “relations” with her. Other times she awoke to find her pants had been undone.
D.S. did not tell her parents about the abuse because she felt no one would believe her, but instead described the incidents to a girlfriend. D.S. informed a child abuse services team (CAST) worker Salazar put her hand on his penis.
Thirteen-year-old G.S. testified Salazar molested her approximately five times. The first time, D.S. woke G.S. and told her Salazar had pulled down G.S.’s pants and touched her vagina. D.S. told her she removed Salazar’s hand and pulled up G.S.’s pants. D.S. suggested they sleep farther away from Salazar, and they moved closer to their father.
A second molestation occurred about two weeks later. G.S. awoke to find her pants down and Salazar hugging her. She screamed for her mother and Salazar crawled back to his sleeping spot. Her father awoke and asked what happened. Salazar or G.S. said she had a bad dream, and everyone went back to sleep.
Another time the family was watching a horror movie in the living room. G.S. fell asleep and when she awoke her pants were down and Salazar was touching her stomach. She pulled up her pants and fell back asleep, hugging her older sister. She awoke again to find Salazar’s hand in her underwear. She pulled his hand out, told him to stop and threatened to tell her parents. He laughed and responded, “‘What are they going to do to me?’”
G.S. described another occasion when Salazar touched her after her family moved to Garden Grove. While watching television, Salazar laid down beside her, pulled her towards his stomach. She pulled away when she felt his erect penis, and left the room when D.S. called for her to come into the bedroom. G.S. testified Salazar touched “inside” whenever he fondled her. G.S. described to an investigating police officer three incidents, including one where she awoke to find Salazar’s hand under her bra.
After her mother’s birthday party, G.S. spent the night at a friend’s residence. She returned home the next morning, and her mother asked if Salazar ever had touched her inappropriately. G.S. informed her mom about the abuse, but did not provide all the details. G.S. also claimed she told her mother about the abuse on an earlier occasion. Her mother told her to scream the next time Salazar fondled her, promising to turn on the lights, take pictures, and show them to the police. G.S. testified she told D.S. after the second molestation, and D.S. confided Salazar also had abused D.S.
Eleven-year-old K.S. testified Salazar touched her private parts on two occasions when they lived in Orange. The first time, she awoke and found him touching her under her pajama bottoms, but on top of her underwear. He did not say anything, but was “trying to put [her] to sleep” by covering her with a blanket, singing songs, and saying “shh-shh.” She informed her mother the next morning. The second time he touched her skin under her panties, but did not put his hand inside her privates. She tried to scream but he covered her mouth. She got up to get a glass of water from the kitchen, returned, woke her mom, and told her Salazar had touched her. Her mother told her to sleep next to her.
Salazar testified he never touched the girls in a sexual manner. The girls acted normally around him and did not fear him. They often called him on the phone and asked him to visit and babysit them, and to go shopping. The girls suggested he move to Garden Grove with them. He later moved out because Isaias, Jr., and A.M. were having relationship problems. Concerning the birthday party, A.M. told him to stay after the party ended around 1:00 a.m. He had no memory of sexually assaulting A.M. He fell asleep on the sofa, and next remembered waking up at Francisco’s apartment.
Following a trial in January and February 2009, a jury convicted Salazar of a single count of committing a lewd act against G.S., and two counts against K.S. It found true the allegation Salazar committed the offenses against multiple victims. The jury also convicted Salazar of simple battery (§ 242) against A.M., a lesser included offense of the charged offense of oral copulation by artifice, pretense, or concealment. (§ 288a, subd. (j) [“an act of oral copulation, where the victim submits under the belief that the person committing the act is the victim’s spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief”].) The jury deadlocked on two additional lewd act counts involving G.S., and all three counts involving D.S. The court declared a mistrial as to these counts. In December 2009, the trial court denied Salazar’s new trial motion and sentenced him to a prison term of 30 years to life.
II
Discussion
A. The Trial Court Did Not Err by Admitting A.M.’s Testimony Concerning G.S.’s and K.S.’s Disclosures of Abuse
Before trial, the prosecutor moved to admit “general testimony” from A.M. that her girls disclosed Salazar’s abuse to her following A.M.’s October birthday party. The prosecutor argued the testimony was admissible for the nonhearsay purpose of showing the effect on A.M., which the prosecutor argued was relevant because he anticipated the defense would “attack all methods of reporting” the crimes. The court ruled it would admit the testimony as nonhearsay “regarding the statements made to [A.M.] that caused her to call the police.”
On direct examination, the prosecutor asked A.M. whether she became “aware of possible allegations from your daughters as against the defendant.” The court overruled Salazar’s hearsay objection, and A.M. answered “Yes.” Asked, “When did this first happen, ” A.M. responded that, “After the incident of October 6th, it was about three or four weeks later, one of my daughters, [G.S.], I was cooking one day. She came up to me. She told me she wanted to talk to me. So I switched the stove off. I told her, ‘What do you want to tell me?’ [¶] She told me that she start — she started getting teary-eyed. She told me that she knew or that she had heard.” The court sustained a hearsay objection. The prosecutor then asked, “Without getting into what [G.S.] said to you, after talking with her, did you believe that [G.S.] might have been touched by defendant?” The court overruled a relevance objection. A.M. testified she “only let [G.S.] tell me two things. I asked her to keep quiet. I told her to stay quiet and that what she was telling me — because she wanted to talk more. I told her what you just told me. If there is more to it, I’m going to talk to the detective that is handling my case, I want you to tell him. And either the next day or maybe on the same day, I don’t remember, I called the detective. I spoke to him, and he told me that he was going to come over to the house to talk to my daughter. [¶] I let the detective know that I had only let her speak about two — when she was talking, I interrupted her because I didn’t want her to keep talking. [¶] I wanted her — whatever she was telling me about, I wanted her to tell him because I didn’t want to have any misunderstanding.”
The prosecutor asked if “after [G.S.] mentioned something to you, did either of your other daughters mention something to you, without getting into what they said?” A.M. said she asked D.S., but D.S. angrily refused to talk to her because “when [K.S.] had told [A.M.] one occasion that [Salazar] had touched her, ... I didn’t believe [K.S.]” Asked if she remembered K.S.’s report, A.M. responded, “Yes. When we used to live [in Orange].” Asked about K.S.’s comment, A.M. explained she “didn’t believe her. I didn’t pay attention, ” because at the time she did not believe Salazar would act inappropriately with her daughters. She later informed the police investigator about her daughters’ allegations.
Salazar contends the trial court erred in admitting A.M.’s testimony about the allegations of her daughters against Salazar because these statements contained “rank hearsay and were admitted for the sole purpose of bolstering the believability of the accusations.” He complains the testimony “unfairly bolstered the credibility of [G.S. and K.S.].”
Salazar’s hearsay argument is not well taken. The court expressly ruled before trial it was admitting the girls’ report to their mother to explain A.M.’s behavior in contacting the detective handling her case. The evidence was not offered to “prove the truth of” (Evid. Code, § 1200) any matter stated or implied in the girls’ reports. (See People v. Mitchell (2005) 131 Cal.App.4th 1210, 1224 [police dispatch tape in a vehicle pursuit case not hearsay because it was not offered for the truth of any matter, but to show how the pursuit unfolded].)
Salazar does not complain the evidence was irrelevant, or that the prejudicial effect outweighed the probative value. (Evid. Code, § 352.) Nor does he assert the trial court refused a limiting instruction. (See People v. Clark (1987) 193 Cal.App.3d 178, 182-183 [court has no duty, absent a request, to provide limiting instruction].)
Salazar’s apparent reliance on the Sixth Amendment Confrontation Clause is equally unavailing. Salazar failed to object in the trial court that A.M.’s testimony violated his confrontation rights and he therefore forfeited the contention. (People v. Tafoya (2007) 42 Cal.4th 147, 166; Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [129 S.Ct. 2527, 2534, fn. 3, 2541] [defendant bears burden of raising Confrontation Clause objection and right may be waived by failing to object to the offending evidence].) On the merits, Salazar’s confrontation clause argument fails. Even if the trial court had admitted the statements for the truth, and the statements qualified as “testimonial, ” Salazar extensively cross-examined all three girls at trial. Where a “‘declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.’” (People v. Morrison (2004) 34 Cal.4th 698, 720 [spontaneous statement by a shooting victim, describing what she saw and identifying defendant as one of the persons who accosted her]; Crawford v. Washington (2004) 541 U.S. 36, 59, fn. 9, overruling Ohio v. Roberts (1980) 448 U.S. 56.)
The Attorney General argues A.M.’s testimony was admissible under the fresh complaint doctrine. (See People v. Brown (1994) 8 Cal.4th 746, 749-750 [proof of an extrajudicial complaint made by victim of a sexual offense disclosing abuse admissible for a limited, nonhearsay purpose of establishing fact of and circumstances surrounding disclosure of the assault to others when relevant to the trier of fact’s determination as to whether the offense occurred]; see also id. at p. 758 [child victims commonly reluctant to report incidents and delay doing so, or fail to provide a full report].) While A.M.’s testimony may have been admissible under Brown (id. at pp. 749 750 [noting “‘freshness’” and “‘volunteered’” nature of complaint should not be viewed as essential prerequisites to the admissibility of such evidence]), we need not resolve the issue because the trial court did not admit A.M.’s testimony on this basis.
B. Salazar Is Entitled to Additional Custody Credit
The trial court determined Salazar served 981 days in custody (§ 2900.5) before sentencing. Salazar argues, and the Attorney General concedes, he actually served 983 days between his arrest, April 4, 2007, and sentencing, December 11, 2009. We accept the concession and will modify the judgment (§ 1260) to reflect 983 days of actual custody credit.
III
Disposition
The judgment is modified (§ 1260) to credit Salazar with 1, 130 days (983 actual, 147 conduct) of custody credit. The trial court is directed to prepare a corrected abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., MOORE, J.