Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge., Super. Ct. No. 04NF2812.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, Robin Derman, Deputy Attorney General, for Plaintiff and Respondent.
SILLS, P. J.
Raymundo Velasquez appeals the judgment sending him to prison for 10 years after his court trial on two counts of continuous sexual abuse of a child under Penal Code section 288.5, subdivision (a). Because we find that the evidence against Velasquez was properly admitted, that objections to such evidence were waived, and that Velasquez was not denied effective assistance of counsel, we affirm.
All further statutory references are to the Penal Code, unless otherwise indicated.
FACTS
In 2002-2003, Velasquez rented a bedroom in Placentia which he shared with two of his children, A. and Raymond. During this time, A. slept in a bed with Velasquez while Raymond slept on the floor. A. was nine when Velasquez began to touch her inappropriately in the middle of the night; this conduct continued for roughly one year and ceased when A.’s older brother, Abner, also moved into the room. A. did not immediately report the touching to anyone because she was afraid of her father (having seen him hit her mother on previous occasions), was afraid that no one would believe her, and was afraid that her mother wouldn’t love her anymore. Velasquez had also hit A. on at least one occasion.
A. stated that Velasquez would touch her “every single night,” each time asking beforehand in Spanish if she was awake; each time, she did not respond because she was scared. She described Velasquez as “[trying] to put his male part on [her] part,” meaning that Velasquez placed his penis on her vagina without penetrating. On more than one occasion, Velasquez penetrated her with his fingers, one time causing her to bleed. A. recalled crossing her legs and trying to move away from Velasquez, all the while pretending to be asleep.
A. eventually moved out of her father’s residence and began to live with her half-sister, C.L., and C.L.’s husband and daughter. When C.L. told A. that there was no longer room for her in C.L.’s home, and that A. would have to move back to Velasquez’s apartment, A. told C.L. what Velasquez had done. A. indicated that she told C.L. because “[s]he just wanted to let it out, because it was killing [her] inside.”
C.L. returned A. to Velasquez’s apartment and immediately called the police, who came to the apartment the next day, questioned A., and took her to Orangewood Children’s Home. During her report of Velasquez’s sexual abuse of nine-year-old A., C.L. also described to police, for the first time, her own abuse by Velasquez beginning when she was seven years old.
At Velasquez’s trial, C.L., then 23 years old, testified that she lived with Velasquez from the time of her birth until she was almost 19. She reported that when she was seven, Velasquez began to touch her private parts over her clothes. She estimated that this occurred “50, 60 times.” When C.L. was nine or ten, Velasquez began to enter her bedroom at night and touch her under her clothes. C.L. testified that sometimes, Velasquez would place his penis on her vagina. She recalled that Velasquez would ask her beforehand if she was awake and check to see if the other three children sharing the room were sleeping; C.L. would pretend that she was also asleep. The touching stopped after an incident which occurred when C.L. was 11 years old: On one occasion, Velasquez tried to touch her while she was awake, but she ran outside and hid from him. C.L. indicated that she never told anyone because she was afraid and because Velasquez told her that she had “better not tell anybody” because “something could happen” to her. C.L. also confirmed that she had seen Velasquez hit her mother on previous occasions.
Velasquez is the biological father of both C.L. and A., though they have different mothers. Each daughter recalls Velasquez beating her own mother.
Velasquez was charged with two counts of continuous sexual abuse of a child under section 288.5, subdivision (a). Count one was based on A.’s allegations and count two was based on C.L.’s. Both A. and C.L. testified and were cross-examined by Velasquez’s counsel in the court trial. The trial court found that the allegations on both counts had been proven beyond a reasonable doubt, that the necessary special allegations had been similarly proven and that the statute of limitations as to the count involving C.L. had been tolled under section 803, subdivision (g).
DISCUSSION
A. There is No Evidence the Court Relied on C.L.’s Testimony to Boost A.’s Credibility
Velasquez argues first that the admission of A.’s testimony as corroboration of C.L.’s, so as to satisfy the extended statute of limitations under section 803, subdivision (g), was improper. He claims that “because the trial court is presumed to know the law incorporated in Evidence Code section 1108, it must be assumed it used evidence of the alleged molestation of C.L. as propensity evidence to find [Velasquez] guilty of the alleged molestation of A..” He concludes that A.’s testimony, therefore, cannot serve as independent evidence to corroborate C.L.’s testimony under section 803, subdivision (g). We address first the idea that the trial court must have used C.L.’s testimony as propensity evidence to support A.’s claim.
As a preliminary matter, many of the concerns addressed by the Evidence Code are not present in this case, as Velasquez waived his right to a jury trial. (See In re Jose M. (1994) 21 Cal.App.4th 1470, 1481 [a court trial minimizes the dangers contemplated by Evid. Code, § 352.].) Velasquez argues that the trial judge must have used C.L.’s testimony as propensity evidence but offers nothing as proof of it.
“‘Evidence of a prior sexual offense is indisputably relevant in a prosecution for another sexual offense.’ (People v. Fitch (1997) 55 Cal.App.4th 172, 179.)” (People v. Yovanov (1999) 69 Cal.App.4th 392, 403.) Thus, “[i]n 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 [generally excluding character evidence offered to show propensity], if the evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1108, subd. (a).) Thus, Evidence Code section 1108 permits the admission of evidence regarding past sexual offenses; however, it does not follow that the fact finder -- here, the trial judge -- can be presumed to have taken such evidence into consideration simply because it was available.
The record is devoid of evidence indicating the trial judge actually used C.L.’s testimony as propensity evidence. It is undisputed that A.’s testimony was sufficient to prove the elements of count one without corroboration from any source; it is thus incorrect to assume that the trial judge, by virtue of knowing that section 1108 existed, inevitably resorted to using C.L.’s testimony to support his decision as to count one. The trial judge “is presumed to know and follow the law.” (People v. Martin (2005) 127 Cal.App.4th 970, 977.) We thus decline to presume that the trial judge in this case used C.L.’s testimony for any improper purpose. (Id. at p. 977 [“[w]e must assume that the court in this case considered the testimony. . . solely for [a] proper purpose . . . .”].)
B. C.L.’s Testimony As Proof of Intent
Even if it could be shown that the trial judge did take C.L.’s testimony into account when making his determination as to count one, we would still find that this consideration was permissible. Character evidence is admissible when it is relevant to prove some fact other than the defendant’s predisposition to commit such an act -- for example, to show intent. (Evid. Code, section 1101, subd. (b).) “To be admissible to show intent, ‘the prior conduct and the charged offense need only be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance.’” (People v. Cole (2004) 33 Cal.4th 1158, 1194; accord, People v. Ewoldt (1994) 7 Cal.4th 380, 402 [citations].)
There is no question that Velasquez’s prior conduct with C.L. was similar to his alleged molestation of A.: Each child was his own daughter; he approached each child in her bedroom at night; he asked each beforehand, in Spanish, whether she was asleep; and he placed his penis on, but not in, each child’s vagina. Velasquez’s disturbing conduct is far from generic, supporting an inference that his intent with regards to C.L. was the same as his intent with regards to A.. Thus, the trial judge could rightfully have taken C.L.’s testimony under consideration as it related to count one: It was admissible to prove Velasquez’s intent under Evidence Code section 1101, subdivision (b). (See People v. Rowland (1992) 4 Cal.4th 238, 261.)
C. Use of A.’s Testimony to Corroborate C.L.’s Allegations
Velasquez’s next contention is that A.’s testimony, which formed the basis of count one, could not be corroborated by C.L.’s testimony, then be used as independent evidence to corroborate C.L.’s allegations, which formed the basis of count two. Velasquez maintains that such use constitutes impermissible “bootstrapping.”
Section 803, subdivision (f) permits a prosecution for sexual abuse to proceed if a criminal complaint is filed within one year of the victim’s reporting the abuse to police, where certain other requirements are met. (See People v. Yovanov, supra, 69 Cal.App.4th at p. 401; §803, subd. (f)(1).) Subsection (2) of that statute states: “This subdivision applies only if all of the following occur: [¶] (A) The limitation period specified in Section 800, 801, or 801.1, whichever is later, has expired. [¶] (B) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual. [¶] (C) There is independent evidence that corroborates the victim’s allegation. If the victim was 21 years of age or older at the time of the report, the independent evidence shall clearly and convincingly corroborate the victim’s allegation. [¶] (3) No evidence may be used to corroborate the victim’s allegation that otherwise would be inadmissible during trial . . . .” (§ 803, subd. (f).) We note that because the statute of limitations with regards to Velasquez’s conduct had not yet run when section (g) was enacted in 1994, this case is distinguishable from Stogner v. California (2003) 539 U.S. 607, in which the U.S. Supreme Court found the retroactive application of section (g) to be unconstitutional.
The provisions of section 803, subdivision (g) were revised and restated in section 803, subdivision (f) in 2005. (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000 & 2007 supp.) Crimes, § 11, p. 14.) Nearly all of the relevant case law references section 803, subdivision (g).
Neither party addressed Stogner in its briefs before this court. We thus requested supplemental briefing on the applicability of Stogner to this case. The parties concur that Stogner is inapplicable, since the statute of limitations regarding Velasquez’s conduct had not yet run when section (g) was enacted in 1994. They agree that Stogner only addressed cases in which section (g) was applied retroactively to revive a statute of limitations that had already run when section (g) went into effect.
Velasquez’s argument relies solely on the purported inability of A.’s testimony to serve as independent evidence which corroborates C.L.’s testimony. Such corroboration is required in order to permit the prosecution of count two to proceed despite the statute of limitation. Velasquez claims that using the evidence in this way “is fundamentally unfair” and constitutes a violation of his due process rights under the state and federal constitutions. He argues—correctly—that had A.’s evidence been excluded, the prosecution of count two would have been time-barred.
Significantly, Velasquez concedes that “A.’s testimony by itself was independent evidence.” However, he asserts that “because the prosecutor, in the same proceedings, also charged [Velasquez] with molesting C.L., the propensity evidence, C.L.’s testimony, helped convince the trial court that A.’s testimony was credible.” He continues, “The problem is there were not separate trials. Because there were not separate trials, and the prosecutor made an allegation under Penal Code section 803, subdivision (g)(1), the improper bootstrapping denied appellant due process . . . .”
What Velasquez fails to acknowledge is the end result of his argument. He boldly suggests that the administration of separate trials would be in the interests of justice, even in the context of a child molestation case which required explicit, demonstrably uncomfortable testimony from two children. These separate trials would require the children to publicly recount the details of their molestation for a second time. This strikes us as patently unreasonable, particularly where the testimony would be identical in both proceedings and is admissible in both proceedings. Velasquez further does not suggest how separate trials would have operated to protect his due process rights when he waived both a jury trial and his right to testify and conducted a cross-examination of both witnesses.
We disagree with Velasquez’s assertion that “evidence of prior sexual misconduct against another victim is inadmissible to corroborate the allegation under section 803, subdivision (g)(1), when [sexual misconduct against] the other alleged victim has been charged. . . in the same proceedings.” This court cannot endorse an interpretation of “independent evidence” that requires a child molestation victim to repeat his or her testimony, particularly when that testimony will be identical to what has already been stated. Given the express mandate of Evidence Code section 765, subdivision (b), that the trial court “take special care to protect [witnesses under the age of 14] from undue harassment or embarrassment, and to restrict the unnecessary repetition of questions[,]” there is no conceivable argument to support prolonging the suffering of children on the witness stand. Since A. presented testimony concerning her recollection of the particular details of her own experience with Velasquez, the requirement of independent evidence has been satisfied here. Further, where Velasquez has not shown that he would have done anything differently had he been granted separate trials, there has been no violation of due process.
D. Waiver
Velasquez argues that his trial counsel’s failure to raise an objection to the admission of C.L.’s testimony at trial did not constitute a waiver of that issue on appeal because it resulted in a denial of due process. We disagree.
Evidence Code section 353 clearly states: “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.” (See also Cal. Const., art. VI, § 13.) As this court is not of the opinion that C.L.’s testimony should have been excluded as to count one, the lower court’s verdict will not be disturbed.
Velasquez argues next that Evidence Code section 353 is subject to the constitutional requirement of reversal where an error by the trial court has resulted in a denial of due process. (See People v. Mills (1978) 81 Cal.App.3d 171.) Since no denial of due process has been shown, as stated above, this argument is moot.
E. Effective Assistance of Counsel
We finally reject Velasquez’s argument that his trial counsel’s failure to preserve his due process claim constituted ineffective assistance of counsel. “‘To prevail on a claim of ineffective assistance of counsel, a defendant must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. [Citation.] A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. . . . Moreover, prejudice must be affirmatively proved; the record must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]’ (People v. Maury (2003) 30 Cal.4th 342, 389, [citations], internal quotation marks omitted.).” (People v. Valencia (2006) 146 Cal.App.4th 92, 101.)
Where there is “no sound legal basis for objection, counsel’s failure to object to the admission of the evidence cannot establish ineffective assistance.” (People v. Cudjo (1993) 6 Cal.4th 585, 616.) “‘Whether to object to inadmissible evidence is a tactical decision; because trial counsel’s tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel’s incompetence.’ [Citation.] ‘In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act . . . .’ [Citation.]” (People v. Williams (1997) 16 Cal.4th 163, 215.)
For the reasons stated above, C.L.’s testimony would have been, and was, admissible as evidence of intent as to count one, making it highly unlikely that an objection would have been sustained. Velasquez thus cannot possibly show that his trial counsel’s performance, in failing to object to admissible evidence, fell below an objective standard of reasonableness.
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, J., IKOLA, J.