Opinion
F086250
07-08-2024
THE PEOPLE, Plaintiff and Respondent, v. ROBERT CARRILLO, Defendant and Appellant.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. F17907107, F. Brian Alvarez, Judge.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Appellate counsel for defendant Robert Carrillo has filed an opening brief summarizing the pertinent facts and raising no issues but asking this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) The opening brief also includes a declaration from appellate counsel stating defendant was advised of his right to file a brief of his own with this court. By letter dated April 8, 2024, we also invited defendant to submit additional briefing. Defendant has not filed a response.
Pursuant to Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following our Supreme Court's direction in Kelly, we provide a brief description of the facts and the procedural history of the case. (Kelly, at p. 110.) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm.
PROCEDURAL SUMMARY
A second amended information was filed on January 25, 2022, charging defendant with one count of committing continuous sexual abuse (Pen. Code, § 288.5, subd. (a), a felony). The information also alleged three factors in aggravation: the crime involved violence, great bodily harm, or cruelty or viciousness; the crime involved a victim that was particularly vulnerable; and the crime involved planning. (Cal. Rules of Court, rule 4.421(a)(1), (3), &(8).)
All further statutory references are to the Penal Code.
After the jury in the first trial was unable to reach a verdict, a second jury trial commenced on September 6, 2022. On September 13, 2022, the jury found defendant guilty of the charge alleged in count 1. The parties then stipulated that the three aggravating factors alleged in the second amended information would be considered by the trial court. On October 25, 2022, the court found the evidence did not support any of the allegations of aggravating factors stated in the second amended information.
Following a change in his legal representation, defendant filed a motion for a new trial on April 6, 2023. The motion argued defendant was entitled to a new trial due to inconsistencies in the evidence and ineffective assistance of trial counsel. The motion seeking a new trial was denied on May 8, 2023. Once the motion for a new trial was denied, defendant was sentenced to the low term of six years, ordered to register as a tier 3 sex offender, and credited with a total of 393 days of custody and conduct credits. Restitution and other customary fines and fees were also imposed at this time. This appeal followed.
FACTUAL SUMMARY
During all times relevant to the charges brought in this case, defendant was married with a separate family. Defendant met L.M. in 2003 and engaged in a relationship with her that appeared to be mostly sexual in nature. Defendant and L.M. would meet once or twice a week, usually during work hours, and did not meet on the weekends or in the evenings. L.M. eventually became pregnant and gave birth to a daughter in January 2005. L.M.'s daughter was the victim in this case.
Again, defendant was convicted of committing continuous acts of sexual abuse against the victim. The victim testified that she first remembered defendant abusing her sexually when she was seven years old. In her trial testimony, the victim stated that this type of abuse occurred at least three more times until she was 12 years old, when she finally disclosed the abuse to friends and the vice principal at her middle school. The vice principal asked the victim to write down everything she could remember defendant did to her while they waited for the police to arrive. This handwritten document was entered into evidence as exhibit 4.
Addressing the initial episode of abuse when she was seven years old, the victim testified she was in her room watching television when defendant touched her breasts and vagina, then eventually inserted his fingers into her vagina. At trial, the victim recalled the second incident as occurring in her mother's bedroom where she had gone to lie down between her parents who were both taking a nap. The victim reported defendant started to rub her breasts over her clothes. The third incident was again in the victim's room while her mother was still at work. The victim recalled defendant entered her room, closed the door, took off her shorts and forced her legs open. Defendant then put his mouth on her vagina while rubbing her breasts with his hand. The fourth incident the victim testified to at trial appears to have occurred near the time she revealed the abuse to her friends and the school vice principal. The victim testified that defendant came to the apartment where she lived with her mother, when again, her mother was still at work. Defendant asked the victim to sit on his lap, then moved her back and forth over his crotch area.
During her testimony, the victim did not identify her age when the second and third incidents occurred. In the written statement created in the vice principal's office, the victim stated these incidents could have happened when she was eight, nine or 10 years old. While there are consistencies in the victim's recollections about what happened during incidents one and four, there are some inconsistencies about some of the details and her age when incidents two and three occurred, as reflected in her statements to the police officer who interviewed her at the school, and the forensic interview conducted after defendant was arrested. The inconsistencies are about the details of the sexual abuse and when they occurred, not whether there were additional episodes of sexual abuse between the time she was seven and 12 years old.
Defense
Defendant testified he first learned he had a daughter only after the victim was born. Defendant stated he visited the victim and her mother only once or twice a year, meeting her for the first time when she was five or six years old. Defendant denied the accusations made by the victim about sexual abuse.
The defense also offered testimony from three women who were nieces of defendant. Each testified she had spent significant amounts of time in defendant's family home and never witnessed any inappropriate behavior.
DISCUSSION
Having carefully reviewed the entire record, we conclude there are no arguable issues on appeal. (Wende, supra, 25 Cal.3d at pp. 441-443.) However, we briefly address two issues raised on behalf of defendant in the trial court, one during trial, and both in the motion for new trial.
The first issue involves the testimony of an expert on child sexual abuse accommodation syndrome (CSAAS). We note, the expert offered no testimony about the specifics of this case and stated he had no contact with the victim. Before the expert offered his testimony, the trial court told the jury:
"And you will hear testimony from .. Urquiza regarding [CSAAS].... Urquiza's testimony about [CSAAS] is not evidence that [defendant] committed any of the crimes charged against him. You may consider this evidence only in deciding whether or not [the victim's] conduct was not inconsistent with the conduct of someone who has been molested and evaluating the believability of her testimony."
The trial court referenced CALCRIM No. 1193 when discussing what it wanted to say to the jury before the expert testified. This particular instruction addresses the type of expert testimony that was being offered, and the court's admonition to the jury was consistent with the language of that instruction.
The issue was raised again during the hearing on the motion for new trial. At that time, the court cited the case law relevant to the issue, then ruled it did not support a new trial because of the cautionary admonition the jurors were given on how to consider the evidence provided by the expert witness. The court went on to state that even if it was error to admit this testimony, any error was harmless given how the evidence was presented to the jury.
In the motion for new trial, defendant also argued his trial attorney provided ineffective assistance of counsel. During the hearing on the motion, the trial court cited case law that was considered and stated:
"After considering a totality of the circumstances, including the trial evidence, this Court concludes there was no prejudice. Unlike the [r]eviewing [c]ourt, this Court has the unique ability to see and hear witnesses testify and gauge their credibility at trial in the first instance. The fact that [d]efendant lived a lie again for many years was not lost on the jury and the credibility assessment of [d]efendant. There's really just a very difficult, if any way, to overcome that significant credibility impairment."
The court also noted it could not rule out the possibility that there were strategic reasons for the choices made by defense counsel that were now being challenged.
"On direct appeal, a conviction will be reversed for ineffective assistance [of counsel] only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (People v. Mai (2013) 57 Cal.4th 986, 1009.) Our review of the record submitted in this appeal fails to disclose evidence supporting any of the standards set out in Mai.
DISPOSITION
The judgment is affirmed.
[*]Before Franson, Acting P. J., Pena, J. and DeSantos, J.