Opinion
B229411
12-08-2011
THE PEOPLE, Plaintiff and Respondent, v. RUBEN ANTONIO BELTRAN, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LA057526)
APPEAL from a judgment of the Superior Court of Los Angeles County, Clifford L. Klein, Judge. Affirmed.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Ruben Antonio Beltran appeals from the judgment entered following a jury trial which resulted in his conviction of aggravated sexual assault of a child (sodomy) (Pen. Code, § 269, subd. (a)(3)). The trial court sentenced Beltran to 15 years to life in prison. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. The prosecution's case.
Nikolas M., who was born in February 1992, was 17 years old at the time of trial. He was attending high school and living with his mother, Connie, and his younger sister, Ali. His parents had divorced when he was five years old because his father, Bruce, had been abusive and "very violent."
At the time of his parent's divorce, the house was "really messy" and damaged. Bruce had actually made holes in some of the walls and "everything was all over the place. No one was really able to take care of the [house] because [Connie] was working [full time] and [Bruce] didn't really care." Connie usually left the house for work at the same time that Nikolas M. and his sister left for school. She came home at approximately 6:00 or 7:00 o'clock in the evening. While they were married, Bruce would pick up Nikolas M. and Ali from school. However, after the divorce, appellant, Beltran, picked up Ali and Nikolas. M.
Beltran, who was in the military, would periodically be stationed somewhere else. However, when he was in Southern California or on leave, he lived at the house with Connie, Ali and Nikolas M. Nikolas M. believed that Beltran was "generally" good to his mother. He "fixed the house" and, almost immediately after he moved in, cleaned it up. It was Nikolas M.'s impression that Beltran was "great with Ali." He stated that "it was kind of . . . like the Daddy's little girl relationship, where he was just protecting her and doing . . . anything he could to make her happy." Nikolas M. indicated that Beltran "also took on a real fatherly role with [him]." He would do things like play sports and video games with Nikolas M. He helped Nikolas M. with his homework. Beltran, who was approximately 24 or 25 years old when he moved into the house, was younger than most of Nikolas M.'s friends' fathers. Nikolas M. believed that made their relationship somewhat easier. He thought Beltran "could kind of understand . . . being a kid a little bit better." However, Beltran also disciplined Nikolas M. Beltran would "ground[]" him so that he could not see his friends or make him do extra studying and reading when he would otherwise be watching television or outside playing. At times Beltran would spank Nikolas M. or, when he got older, make him do push-ups. In any event, Nikolas M. stated that he really loved Beltran and began to think of him as his father.
After school, even if Beltran was there, Connie always had a babysitter to take care of Ali and Nikolas M. Nikolas M. remembered that, for a long time, they had a sitter named Julia. Julia would also stay over night when Connie had to go on business trips. Whenever Connie was gone, both Julia and Beltran slept at the house.
Although Nikolas M. loved Beltran, he admitted that, when he was approximately eight years old, Beltran began to touch him in an inappropriate way. Nikolas M. could not remember the first time it happened, but he did remember the last time. They had been playing a video game and Nikolas M. decided it was late and he was going to go to bed. He began to feel that Beltran was "going to try to hurt [him] again, so [he ] ran away to [his] mom's room across the hall[.]" Beltran followed him and "kind of wrapped [him] up from behind and he was . . . moving . . . around on [Nikolas M.'s] hips with his" hips, "thrusting" his body up against Nikolas M.'s. Nikolas M. told Beltran that " 'this [was] not going to happen' " and, although Nikolas M. did not know why, Beltran stopped. Nikolas M. was surprised because in the past he had begged and cried and screamed and Beltran would always "just keep going."
When Nikolas M. was between the ages of eight and eleven, Beltran committed inappropriate acts with him on between 10 and 15 different occasions. The two would be alone in the house, usually playing video games in an upstairs "office," when Beltran would grab Nikolas M., force him down so that he was lying on his stomach on the floor, get on top of him and "put his penis in [Nikolas M.'s] butt." The episode would last for between 10 and 15 minutes, which seemed like "forever" to Nikolas M. Because he was so much larger than Nikolas M., Beltran was able to pin him down although Nikolas M. "squirm[ed]" and attempted to fight back. Throughout the entire incident, Nikolas M. would be "[c]rying and trying to squirm away." He would scream for Beltran to " 'stop[,] [p]lease stop.' " Nikolas M. indicated that it "really" hurt him. However, the crying and squirming did not work. It never caused Beltran to stop.
Nikolas M. believed that when he was eight years old, he was approximately five feet tall and weighed just under 100 pounds. Beltran was 5 feet 9 inches tall and weighed between 150 and 170 pounds.
Nikolas M. indicated that he was in pain, not just during the incident, but for some time afterward. He stated, "There was usually a lot of soreness and a lot of discomfort." On at least one occasion, Beltran's actions caused Nikolas M. to bleed.
On at least one occasion, Beltran "touch[ed] [Nikolas M.'s] penis with his mouth." They were in a hotel room waiting to go to a cousin's wedding. Nikolas M., who was approximately eight years old at the time, was to be the ring bearer at the service. It happened in the morning after Connie and Ali had left the room to do something with all the women involved in the wedding. Beltran closed the blinds and hung the " 'Do Not Disturb' " sign on the door to the room. He then removed Nikolas M.'s pants and, instead of sodomizing him as he usually did, he placed his mouth on Nikolas M.'s penis. Beltran orally copulated Nikolas M. for between 20 and 30 minutes. During that time, Nikolas M. was lying on a bed with his legs hanging over the side and a pillow behind him. Beltran was kneeling on the floor. Nikolas M. was "really confused so [he] just watched T.V. and tried not to . . . think about what was going on." Nikolas M. was certain the episode lasted for approximately one-half hour because Beltran performed oral sex on him for the length of a 30-minute television program.
During these incidents, Beltran's demeanor would change. He would become aggressive and "forceful." After awhile, Nikolas M. started to "know when it was coming." He could "read [Beltran's] body language." He could "see" Beltran's intentions in the way he approached Nikolas M. Nikolas M. knew that if both his mother and sister were not at home, he had to be wary of Beltran.
When Beltran had finished, Nikolas M. would usually lock himself in the bathroom and take a shower. He would stay in the bathroom for approximately 15 minutes, or until he felt that it was safe to come out.
After Beltran had molested Nikolas M., he would tell Nikolas M., " 'Don't tell anyone or I'll have to go away. Don't tell anyone or I'll get in trouble.' " Although in the beginning Nikolas M. did not really understand why Beltran told him not to tell anyone what had happened, he believed Beltran and it made Nikolas M. "really sad." He, in general, "really looked up to [Beltran] as a father."
In order to avoid being alone with Beltran, Nikolas M. started accompanying his mother and sister to their hair and nail appointments. He would bring a "gameboy or something to the hair salon."
Nikolas M. did not tell anyone about the incidents with Beltran until after Beltran had been in prison for approximately two years. Although Nikolas M. was too young to fully understand, he knew his mother had "already been through enough." In addition, Nikolas M. "really cared about [Beltran]." Nikolas M. was 15 years old when he finally told his best friend, Carolina, that Beltran had sexually abused him. He told her over the phone after they had had an argument about "trust." Carolina immediately told Nikolas M. that he should tell his mother and Nikolas M. decided she was right. He called his mother, Connie, and told her that he had something to tell her when she got home. That evening, when Nikolas M. told Connie about Beltran's sexual abuse, Connie "cried and . . . said she was sorry that this had happened to [him]." Connie also stated that they had " 'to go to the police [and] . . . tell them what [had] happened.' " The following day, Connie took Nikolas M. to the police station where he told an officer about the molestation. After speaking to the officer, Nikolas M. was examined by a doctor and interviewed by a social worker from the Department of Children and Family Services.
Beltran had pleaded guilty to sexually assaulting Nikolas M.'s younger sister, Ali, and two of her friends. At the time of Beltran's arrest for those crimes, Nikolas M. had told police officers and a social worker that Beltran had not molested him.
Another factor which motivated Nikolas M. to tell his mother about Beltran's abuse was his eighth grade sex education class. There, he had learned about sexually transmitted diseases and "all the terrible things associated with" them. He realized that, if Beltran were infected with one, he could easily have passed it on to Nikolas M.
Nikolas M. testified that he, on occasion, spoke to Beltran on the telephone when Beltran called the house from prison. In addition, he received at least one letter from Beltran while Beltran was incarcerated. The letter, dated Monday, September 25, 2006 and addressed to " 'my baby boy,' " stated, in part: " '[Y]ou are much too good for me. I never deserved your love. You must remember that I was never worthy of you and never worthy of your love.' " Beltran continued, " 'I wish you only happiness and joy. I wish you a life full of love and I wish you all that your heart desires. I love you now and I will always love . . . my son.' " Nikolas M. indicated that, other than those times when his demeanor changed and he was sexually assaulting him, Beltran used that "loving" tone with him.
When asked if he would ever lie about something like Beltran's conduct, Nikolas M. responded, "No." "I don't think I would have the capability . . . to imagine and think up something like this" and "I would never want to intentionally hurt someone in any aspect of life."
Although it had occurred several years earlier, Nikolas M. did not tell his friend Carolina or his mother about the molestation until 2007. He knew that Beltran was to be released from prison in 2008, after he served his term for sexually abusing Ali and her friends. When asked whether he believed that Beltran would come back and hurt him and Ali after his release, Nikolas M. stated, "I didn't think about him hurting us after he got out of jail."
Nikolas M. is now in therapy. He goes to both individual and family therapy sessions. Nikolas M. remembered telling one therapist that he cried each time Beltran sodomized him and that on one occasion, when he started to cry, Beltran said, " 'Why are you crying? Your mom and your sister take this.' "
Nikolas M.'s 14-year-old sister, Ali M., was born in September 1994. She was three years old when her parents divorced. Approximately one month after the divorce, Connie's boyfriend, Beltran, moved into the house. He was "like a father figure in [Ali's] life" because her "dad wasn't around and [Beltran]" filled that gap. Beltran took Ali and Nikolas M. grocery shopping, to their flag football games and practice sessions and played games with them. When their mother, Connie, was on business trips, Beltran, along with the babysitter, would stay at the house. According to Ali, "He never left the house when he wasn't in the army. Like, he never had anywhere to be or anywhere to go."
Ali believed Beltran was very strict with Nikolas M. If Nikolas M. did not do well in school or made a rude comment, Beltran would make him do 20 or 30 push-ups. In contrast, he treated Ali like "daddy's little girl." He "spoiled" her. With Connie, Beltran was "funny," "charming," "loving," and "caring."
When Ali was six or seven years old, Beltran began touching her inappropriately. Ali realized what was happening when a girl at her school explained to her what the word " 'rape' " meant and that it was a bad thing. By this time Beltran had sexually assaulted Ali between five and ten times. Beltran would reach underneath Ali's clothing and touch her vagina, her chest and her buttocks. He then began putting his mouth on her vagina. Beltran sexually assaulted Ali more than 30 times. On each occasion, Beltran removed Ali's clothing and orally copulated her for approximately 30 minutes. During this time, Ali would ask him to " 'stop' " or attempt to push his head away. If she cried or talked, Beltran would tell her to " 'shut up,' " raise his fist and "punch" her. Beltran also asked Ali to touch or hold his penis, but she always refused. She sat on top of her hands or "g[o]t out of it somehow."
Beltran periodically molested Ali from the time she was six until she was nine years old and "he was put in jail." He always performed these acts late at night, when everyone else in the house was asleep. He either went into Ali's bedroom or, if her mother was out of town, brought Ali into her mother's bedroom.
Ali did not tell anyone about Beltran's conduct until after he had molested two of her friends. Then Ali, along with one of her friends, Ashley, told Nikolas M. and the babysitter. The babysitter told Ali's mother, Connie.
Ali was nine years old when she told the babysitter that Beltran had sexually abused her. She had not spoken up sooner because "[o]ne, . . . it's . . . embarrassing and, two, because [she didn't] want to get him in trouble because [she] love[d] him, and, three, because he had told [her] he would kill [her] if [she] told, and then . . . that he would kill [her] family if they found out." Ali believed Beltran when he made these threats. She found him "intimidating" and was afraid of him.
Ali did not know that Beltran was also molesting Nikolas M. until approximately one year before the trial, when he told police.
Constance M., whose nickname is " 'Connie,' " is the mother of Nikolas M. and Ali M. Connie, who had divorced the children's father because he was extremely abusive, had known Beltran since he was eight years old. Connie's brother had married Beltran's mother and brought Beltran from Mexico when he was eight. Connie saw Beltran approximately once a year until December 1997. On that occasion, the two "talked" and "visited" and, in February 1998, Beltran came to Connie's home for a sixth birthday celebration for Nikolas M. Approximately one month later, Connie saw Beltran at a family wedding. Sometime after that, the relationship between Connie and Beltran changed. They talked on the phone and he came to visit at Connie's home. Beltran and Connie became friends and Beltran began to help with chores at the house. According to Connie, he was "extremely helpful. He pretty much fixed everything." In addition, when Connie told Beltran about her ex-husband's "drinking and the violence, . . . [Beltran] was very, very understanding; very, very sensitive about everything. . . . [M]any times [when Connie] cried[,] he let [her] cry and held [her]." Beltran ultimately moved into the house with Connie and the two children and he and Connie became "[r]omantically involved." He was "better to [Connie] than anybody ha[d] ever been" and she "loved him dearly." He was "perfect" with the children and "[t]hey loved him like a father."
On one occasion, after Beltran had been living at the house for some time, Connie went on a fairly lengthy business trip. Beltran and the babysitter were at home with the children and one night, although it was against Connie's rules for either one of the children to have a friend sleep over when she was not there, Ali had friends sleep over. At some point after that, Connie received a telephone call from the babysitter.
When Connie arrived home from her business trip, she went directly to a restaurant to meet Beltran and the children. That evening they were all going to the Academic Fair night at the children's school. The subject of the sleep over came up and when Connie questioned Beltran about it, he became extremely agitated and said, " 'When you are gone, from now on, I'm in charge.' " Connie responded, " 'No, you are not. Those are my children and that is my house.' " Connie believed that "something was really different." Beltran had never behaved in that way before and she was fearful.
After going to the event at the children's school, Nikolas rode home in Beltran's car and Ali rode home with Connie. When they arrived at the house, there were three police cars there. An officer separated the children from Connie and Beltran and told Connie that " 'there ha[d] been an allegation of child abuse.' " The officer put the children in a patrol car and Connie followed them to the police station. At that point, Beltran was allowed to stay at the house.
At the station, Connie saw Ali's friends, Ashley and Samantha, and their parents. Ali's friend Amanda and her mother were also there. While Connie was waiting for her children, she was questioned by a Child Protective Services worker named Phillip Felix and three or four police officers. During those interviews, Connie was told that Ali and her friends had been "touched" by Beltran. Although she was not told of any allegations made by Nikolas M., Connie was nevertheless "[s]hocked."
After approximately 24 hours at the police station, an officer told Connie to telephone Beltran. The officer said, " 'Have him come in. Tell him that the children are hungry and that he needs to come and take them out for breakfast, get them [donuts.]' " Connie made the call and Beltran came to the police station. When he arrived, Beltran was taken into custody. The children were released to Connie and she was allowed to return to their home.
While she had been at the station, Connie had been informed that Beltran had sexually molested Ali. However, Ali never told Connie exactly what Beltran had done to her. Connie stated that she had been advised by both counselors and the district attorney "not to ask her, that she would . . . tell [Connie] when she was ready to talk about it." Moreover, in Ali's case, there was no trial. Beltran "pleaded guilty to two of three counts."
While in prison, Beltran occasionally telephoned Connie and the children and he wrote Connie numerous letters. Connie responded to the letters until, in June 2007, Nikolas M. told her that Beltran had sexually abused him as well as Ali and her friends. Prior to that time, Connie believed "that [Beltran would have] an opportunity to make a new life in another country, that he could be rehabilitated[.]"
In one recorded telephone call, Connie stated that she was feeling "depressed" about "what [they had been] talking about earlier[.]" She told Beltran that Nikolas M. had told her "about what happened" and that she did not know what that meant for him. Connie told Beltran that Nikolas M. had been trying to protect him and that she was now worried about him. When Connie then asked Beltran if he had HIV, Beltran responded, "Why would I have HIV? If I had it, you would have it." Connie then told Beltran that she did not understand him and she asked him, "why would you hurt Nick? He loved you more than anybody in the whole world." Beltran responded, "Why would I hurt anybody?" Beltran continued, "I just can't explain why I do anything. There's no reason behind anything." Later in the conversation, Connie said, "And I left him with you. And he told me that you hurt him then. And I feel really guilty about that. And I feel like I—I mean, I don't know how—I mean, honey, why did you hurt him?" Connie continued, "He said you put your penis inside of him. And he said that you also went down on him when we went to that wedding." "Why would you do that to him, when he's the sweetest boy in the world?" Beltran replied, "Why would I do that to anybody?" When Connie then asked Beltran how many times he had hurt Nikolas, Beltran replied, "How can you expect me to talk about something I can't talk about? [¶] . . . [¶] . . . I'm in a room with at least 100 other guys[.]" Later in the conversation, Connie said, "So what I'm worried about for Nick is, now—now that he has a girlfriend, he wanted me to talk to you about this and see if he's in any trouble with—like if he ever has, you know—which he will have sex in the future, and, you know, whether he's going to be okay." Beltran responded, "How would I know that?" Still later Connie told Beltran that Nikolas had told her that Beltran had been " 'hard on [him].' " He had " 'dug into [him] with his penis.' " Connie continued, "That totally broke me, [Beltran]. He said you . . . had oral sex with him and—well, he didn't use those words. He said . . . you know[.]" Beltran responded, "I don't remember any of that stuff. But I don't remember a lot of things[.]"
In one letter, Beltran stated: " 'I just want you to know that I don't blame you for anything. I am to blame.' [¶] . . . [¶] [] 'You are just tired of me and moving on. I understand.' [¶] . . . [¶] [] 'I know you'll live life without me and that is exactly what you should do. I am a lost cause and I know it.' [¶] . . . [¶] [] 'I don't know what I was thinking. I always knew I was not worthy of you. I was just trying to stay with you as long as I could. I was being selfish. I was so happy with you. . . .' [¶] . . . [¶] [] 'I lied to myself and I ruined your lives. I'm glad I'm being punished. I wish someone would just kill me and finish this pathetic excuse for a life. One can only hope. [¶] . . . [¶] [] 'I am the destroyer of love and happiness. My punishment is to be ripped away from the one place I felt at home. . . . I have been sentenced to life without a home, without happiness, and without love. But I do deserve it and I know it.' "
In another letter, Beltran wrote: " 'I hope you'll find somebody if you haven't found them already. But tread softly. Evil like me is everywhere. Evil disguises itself like I did and evil is selfish like I am.' [¶] . . . [¶] [] 'I am completely worthless and I do not deserve your love. Nikolas has stopped picking up [my phone calls], just like Ali did.' " " 'Forget about the loser pedophile you knew. I am not worth any of your time. . . .' [¶] . . . [¶] [] 'Your daughter will continue to hate you as long as you talk to me. Who cares if I live or die? I don't.' [¶] . . . [¶] [] 'Ali not speaking to me is also a good step. Nik[olas M.] not speaking to me is also a good step. Please block your phones so I can't call you anymore.' "
In yet another letter, Beltran stated: " 'I am not worth loving. . . . I hope you will be happy with your new man, a real man, not a pervert like me . . . .' " " 'If you only knew the things that go through my mind. I think about sex with everyone. I am not a true pedophile like the rest. I just don't have any sexual boundaries; . . . too many disturbed things that you are better off never experiencing.' [¶] . . . [¶] [] 'Like things like tying you to the bed while complete strangers climb on top of you . . . . I would have gotten you in trouble too. I was going to tie you to the bed and blindfold you and have Nikolas fuck your pussy. [¶] . . . [¶] . . . I was going to do it the night the cops came to the house . . . .' [¶] . . . [¶] [] 'I am really messed up. I even think of having sex with my own mother. . . . [¶] [] Please have fun and go out and have sex with a normal guy who is not a weirdo like me. ' "
In a letter received from Beltran after July 24, 2007, he wrote: " 'I need you to realize just how much of a loser I am. I am a weirdo. I know I never deserved to be with you. I never deserved to be called "husband" or "Daddy." [¶] . . . [¶] [] Nik[olas M.] and Ali know that now.' " Beltran was unaware of the fact that Connie had contacted the police about his molestation of Nikolas M. when he wrote this letter on January 8, 2008. He stated: " 'I'm sorry for everything and I'm sorry I will never get a chance to make amends with you and Ali and Nik[olas M.] I am sorry that you all hate me, but that is what I deserve.' "
On the day of his arraignment in Nikolas M.'s case, Beltran telephoned Connie from jail. After he told her that he was " 'going to get life this time[,]" Connie asked him how many times he had hurt Nikolas M. Beltran initially responded, " 'I don't remember there being 10 or 15, 16 times.' " When Connie then asked, " 'Well, how many times did you hurt him[,]' " Beltran stated, " 'It happened once [when Nikolas M. was six years old] and he knows it, and he's lying. He wants me to do life.' " Beltran added, " 'It's just not right that I should be facing life for hurting one child when I hurt three children and only got five years.' "
Julia Ruiz worked for Connie as a babysitter for Ali and Nikolas M. from March 2000 to February 17, 2004. It was essentially a "live-out" job, however whenever Connie had to go out of town on a business trip, Ruiz would spend the night at the house with the children. In 2000, Beltran began coming to Connie's house for fairly short visits. However, in 2003, he moved into the house full time. According to Ruiz, Connie used to work late and then go to the gym. Many times she did not get home until 9:00 or 10:00 o'clock at night. During these times, Beltran began to "take charge" and he would punish Nikolas M. for failing to finish his homework or otherwise acting up by making him do push-ups or holding his arms up into the air until he cried. This angered Ruiz. Beltran did this only once when Connie was at home. That time Connie told Beltran that it was "enough," and she hugged Nikolas M. as if she were protecting him. That time Beltran "stopped and . . . backed [off]." Ruiz believed that, in part because of the punishment he endured, Nikolas M. "hate[d]" Beltran.
Although Ruiz had been "totally" in charge of the children for three years, things changed when Beltran moved in. On one occasion when Connie was on a business trip, Ali came downstairs to the room where Ruiz slept. She was crying and asked Ruiz if she could sleep with her. When Ruiz said " 'yes' " and began to make up the bed next to hers, Beltran came downstairs. He was "really, really very upset. [Ruiz had not] seen him . . . like that [before]. It's like another personality. [¶] And he said, 'No, no. You know better than that. . . . You have to sleep in your bedroom.' " Ruiz immediately telephoned Connie and asked her, " 'Why he got so upset? She's used to sleep[ing] with me. She's scared all the time.' " Connie replied, " 'Julia, we have rules.' "
Fifteen-year-old Carolina J. is a good friend of Nikolas M.'s. They have known each other since the seventh grade. Carolina characterized her relationship with Nikolas M. as "really close." One day Nikolas M. told Carolina that he "wanted to tell [her] something that he didn't want to tell anybody else because he knew that he could trust [her]." He then "proceeded to tell [her] what had happened [with Beltran]." Nikolas M. told Carolina that his mother's boyfriend had sexually assaulted him. Carolina was "alarmed" and told Nikolas M. that "he should speak to his mom immediately." Carolina was the first person Nikolas M. had told about the abuse and he was reluctant to tell his mother. He did not want to hurt his mother and he considered himself in large part the family protector. He took care of his mother and younger sister.
Sandra Wilkinson is a sexual assault nurse at Northridge Hospital. She does physical examinations of sexual assault victims to determine whether the physical evidence is consistent with what the patient has told her. She has been doing such examinations of both men and women since 1977. Wilkinson examined Nikolas M. in July 2008. His examination was not "acute;" he had not been molested within the previous 96 hours. Wilkinson characterized Nikolas M. as a "chronic" patient, or one where the sexual abuse had been disclosed at a later date. During the interview portion of the examination, Nikolas M. told Wilkinson that his mother's boyfriend, Beltran, had penetrated his anus with his penis multiple times over a four-year period. Beltran had committed these acts from the time Nikolas M. was eight years old until he was 12 years old. Beltran always held Nikolas M. down during these episodes and they were "forceful and painful." Nikolas M. said that it was " 'really violent and forceful stuff.' " Nikolas M. also indicated, that, in addition to the episodes of sodomy, on one occasion Beltran had orally copulated him.
After the interview, Wilkinson conducted an extensive physical examination. She found no evidence of abuse, but had not expected to find any. According to Wilkinson, anal injuries "heal extremely fast." Wilkinson continued: "If I'm going to see an injury this long after an assault, I'm going to have to have a history of extreme pain and a lot of bleeding, because I'll only see an injury if a muscle was ripped." That did not happen in Nikolas M.'s case. Neither, at that point in time, was Wilkinson able to collect any D.N.A. evidence. Because Wilkinson, based on what Nikolas M. had told her, had not expected to find any visible injuries, she concluded that " 'the lack of injuries [was] consistent with the patient's description of the penetration.' "
Sixteen-year-old Ashley W. met Ali and Nikolas M. when she was in the fourth grade. Ali was in the third grade and Nikolas M. was in the fourth grade. The three became friends, although Ashley was closer to Ali than to Nikolas. When they were younger, Ashley and Ali used to sleep at each other's houses. In May 2004, Ashley was 11 years old. Although Connie, Ali's mother, was not at home, Ashley slept over at Ali's house. The girls were sleeping on the floor in the living room when Ashley was awakened by someone tugging on the left side of her pajama bottoms. She opened her eyes, saw Beltran and asked him what he was doing. After he had pulled the left side of her pajama bottoms down, but not entirely off, Beltran told Ashley to " 'just go back to sleep.' " Ashley started to cry and told Beltran to " 'go away.' " Beltran then walked over to the couch in the room and got behind it. Ashley could see him looking over at her and she said, " 'Please leave me alone. Leave me alone.' " Ashley tried to wake up Ali. Ali, however, is a sound sleeper and did not wake up. Ashley "started crying more" and, although she was "very scared," was able to fall asleep after a time. The following morning, Beltran acted as though nothing had happened.
Later that day, Ali's nanny took Ali, Ashley and Nikolas M. to the mall. After discussing it with Ali, Ashley decided to tell the nanny what had happened. While at a restaurant at the mall, Ashley told the nanny "exactly what [had] happened the night before."
When Ashley went home that day, she decided not to tell her parents about Beltran's conduct. She was "scared and embarrassed and [she] felt it was [her] fault somehow." Ashley continued, "I'm a little kid and I felt I should have done something at that moment and that it was already too late to tell them what happened, so I just decided not to tell them." Ashley also believed that if she told her mother, that her mother would no longer allow her to sleep over at Ali's house. That made Ashley "sad because [Ali] was [her] best friend."
Later that night, Ashley's parents woke her up and told her that "the Police Department had called" and that she needed to go downtown to answer some questions. When her parents asked Ashley why the police wished to speak with her, she told them what Beltran had done. She told them "exactly what [had] happened."
When Ashley first arrived at the station, she saw Connie sitting in the waiting room. Connie was crying and she hugged Ashley and told her that she was really sorry. Ashley was then interviewed by a social worker, Phillip Felix. After she told Felix what had happened at Ali's house, Ashley was allowed to return home with her parents.
During a later interview, Ashley told a detective about another incident which had occurred at Ali's house. Ashley was sleeping on the top bunk of a bunk bed while Ali was sleeping on the bottom. Beltran climbed up onto the bed, kissed Ashley on the forehead, mouth and chin, then put his hand under her shirt and touched her breast area. Ashley remembered feeling "nervous" the next time she went to Ali's house.
In 2004, Detective Nancy Nelson investigated Ali's case. Nelson was assigned to a specialized unit, the "Abused Child Unit." The unit was responsible for investigating "all child abuse cases if [they involved] a family member, sexual abuse, physical abuse [or a] homicide[]." It had been Nelson's experience that, with children "the norm was they didn't disclose until [the abuse] had been going on for a long time." The average was two years. In addition, the majority of cases involved the mother's boyfriend or the child's stepfather. Nelson was of the opinion that, under these circumstances, a child knows that if he or she discloses the abuse, "the family's going to be torn apart, it's going to ruin the relationships [and that it's possible that] nobody will believe [the child]."
In June 2007, Nelson received a call regarding allegations made against Beltran by Nikolas M. Nelson decided that it would be helpful to record telephone calls made by Beltran to Connie. One call, made on November 23, 2007, was significant and Nelson provided a recording of the call to the district attorney. In another call, made from the lock-up on December 28, 2007, Beltran "made some alarming comments" and "some admissions."
Nelson interviewed Nikolas M., his friend Carolina and others regarding the charges of sexual abuse. After reviewing the records from the 2004 case involving Ali and the evidence collected regarding Nikolas M.'s 2007 case, Nelson presented the 2007 case to the district attorney for prosecution.
The parties stipulated to the following: "The defendant Ruben Beltran was arrested on May 21st, 2004. [¶] Three counts of child molestation charges were filed against him on May 25th, 2004. [¶] On October 7th, 2004, a plea agreement was entered between the People and the defendant, where the defendant pled guilty to two counts of . . . section 288(a), commonly referred to as lewd acts with a child under the age of 14. One count was dismissed. [¶] The defendant was sentenced to five years in state prison."
b. Defense evidence.
In 2007, Toni Hudnall was working as a social worker. During the investigation of Nikolas M.'s case, Hudnall interviewed Connie, Nikolas M. and Ali. She spoke to each individual separately.
During her interview with Connie, Connie stated that she had "had no clue that her son was also being abused [by Beltran] and [that,] hopefully[,] with the new information, . . . Mr. Beltran [would] receive more time."
The parties then stipulated that, on May 20, 2004, social worker Phillip Felix interviewed Nikolas M. and that "Nikolas stated that he had bonded with Ruben Beltran beyond a friend and as a father figure, hoping some day that his mother would marry him[.]"
2. Procedural history.
Following a preliminary hearing, on May 27, 2008, Beltran was charged by information with 10 counts of aggravated sexual assault of a child (sodomy) in violation of section 269, subdivision (a)(3).
Prior to trial, a hearing was held pursuant to Evidence Code section 402. After the presentation of evidence and argument by the parties, the trial court granted the People's motion to use in their case evidence of telephone conversations and prior acts within the meaning of Evidence Code section 1108.
Trial was by jury. Opening statements were made by both the People and the defense on August 27, 2009. After hearing all of the evidence and instructions, the jury began its deliberations on September 2, 2009. The jury reached verdicts on the 10 counts on September 3. It found Beltran guilty of aggravated sexual assault of a child (sodomy), in violation of section 269, subdivision (a)(3), a felony, as charged in count 1. The jury found Beltran not guilty of the remaining nine counts.
On October 18, 2010, Beltran filed a motion for a new trial in which he alleged there had been juror misconduct. He asserted that one of the jurors "did not feel [that] Mr. Beltran [was] guilty of any crimes charged and that eventually the other jurors began 'wheeling and dealing' with him. [The juror] finally agreed to find Mr. Beltran guilty of one count and not guilty of [the] 9 other counts. [The juror] agreed, in large part, due to a statement made by another juror that Mr. Beltran would be incarcerated for only a couple of years."
At a hearing held on the matter on October 20, 2010, the prosecutor argued that the single juror simply had " 'buyer's remorse.' " The prosecutor continued: "In other words, the juror was convinced of his decision to convict the defendant of one count and only after the public defender and myself went into the jury room and spoke with the jurors after, he came to find out about [Beltran's] sentence did he have what I'm referring to as 'buyer's remorse,' in that he changed his mind; not because of the state of the evidence, not because of what was proven to him beyond a reasonable doubt, not because of any misconduct that we have seen, despite having interviewed almost all of the jurors, but because he had buyer's remorse."
It was determined, when the court inquired, that there had been no "horse-trading" on verdicts. The juror in question indicated that most of the jurors wanted to go for all 10 counts. The juror said, " 'I said only one count.' " The prosecutor asserted that this showed that "by the state of the evidence [the juror] was convinced beyond a reasonable doubt that the defendant was guilty of one count." Further, the juror "said he did not negotiate. [When the court] asked him if there was an eye for an eye[,] [h]e said 'no.' He said, 'I didn't vote for one count in exchange for anything else[.]' "
Although defense counsel argued that the jury had "credibility issues with the victim" and that the verdict "raise[d] suspicion that something odd happened in the jury deliberations," the trial court denied Beltran's motion for a new trial. The court indicated that the juror had "back[ed] off" from his original allegations that there had been misconduct and he "denied there [had been] trading in votes." The court concluded that it was "speculation to try and decide what the jury was thinking."
After listing a number of circumstances in aggravation, the trial court sentenced Beltran to a term of 15 years to life for his conviction of aggravated sexual assault of a child (sodomy) in violation of section 269, subdivision (a)(3) as charged in count 1 of the information. Beltran was awarded presentence custody credits in the amount of 1,034 days actually served. The court ordered Beltran to pay a $200 restitution fine (§ 1202.4, subd. (b)), a suspended $200 parole revocation restitution fine (§ 1202.45), a $30 court security fee (§ 1465.8, subd. (a)(1)) and a $30 criminal conviction assessment (Gov. Code, § 70373). A restitution hearing was scheduled for a later date.
Beltran filed a timely notice of appeal on November 19, 2010.
This court appointed counsel to represent Beltran on appeal on March 4, 2011.
CONTENTIONS
After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed June 2, 2011, the clerk of this court advised Beltran to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. On August 9, 2011, this court granted Beltran's request for an extension of time within which to file his supplemental brief and the brief was filed on September 2, 2011.
In his 11-page supplemental brief, Beltran first argues that the testimony given by various witnesses was contradictory and, thus, unreliable. He indicates that this is particularly true of the testimony given by Nikolas M. In his second argument, Beltran appears to be asserting that his appellate counsel was ineffective.
With regard to his first argument, Beltran states in his introductory paragraph that "[s]tatements made by Nikolas [M.] contradict themselves. Statements made to law enforcement [by] Nikolas [M.] in 2004 to [the] LAPD contradict statements made to Constance [M.] in 2007 in a recorded conversation w[h]ich contradict statements made during the preliminary hearing w[h]ich contradict statements made during the trial examination w[h]ich contradict the statements made during cross examination." Beltran concludes by stating: "You people are . . . morons if you don't overturn this conviction."
In essence, Beltran is arguing that the contradictory statements of some witnesses cannot support his conviction. Initially, not all of the statements referred to by Beltran contradict one another and, to the extent that they do, a reasonable explanation is given as to why. In addition, determining the credibility of witnesses is not the function of an appellate court. " 'Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]' " (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Here, a reading of the record establishes that more than substantial evidence supports the jury's finding Beltran sexually assaulted Nikolas M.
As to his assertion that his appellate counsel was ineffective, we note that an indigent defendant has the right to the effective assistance of competent counsel on appeal. (In re Spears (1984) 157 Cal.App.3d 1203, 1210.) "The duties which appointed appellate counsel must fulfill to meet his or her obligations as a competent advocate include the duty to 'argue all issues that are arguable.' " (Ibid.) "[F]or an issue to be an arguable issue on appeal it must be reasonably arguable that there is prejudicial error justifying reversal or modification of judgment." (Id. at p. 1211.) "[I]t is not the duty of appellate counsel to 'contrive arguable issues.' " (Ibid.) Here, appellate counsel appropriately found no arguable issues.
APPELLATE REVIEW
We have examined the entire record and are satisfied that Beltran's counsel has complied fully with counsel's responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J. We concur:
KITCHING, J.
ALDRICH, J.