Opinion
H034812
08-17-2011
THE PEOPLE, Plaintiff and Respondent, v. HECTOR COLIN, Defendant and Appellant
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC801892)
Defendant Hector Colin appeals a judgment entered following a jury trial during which he was convicted of sexual intercourse with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a)), and oral copulation with a child 10 years of age or younger. (Pen. Code, § 288.7, subd. (b)). On appeal, defendant asserts the trial court erred when it precluded defendant from introducing evidence he denied he committed the crimes in his interview with the police. In addition, defendant argues he was denied effective assistance of counsel, and that the trial court erred in imposing an AIDS education fine in this case.
STATEMENT OF THE FACTS AND CASE
The instant case arises from allegations in 2008 that defendant sexually molested his girlfriend's seven-year-old daughter. As a result of the allegations, and subsequent investigation, defendant was charged by information with one count of sexual intercourse or sodomy with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a) - count one), and one count of oral copulation with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b) - count two).
The underlying facts of this case are omitted, because they are not relevant to the issues on appeal.
Defendant was found guilty of both counts on June 23, 2009 following a jury trial. The court sentenced defendant to 25 years to life on count one, and a consecutive term of 15 years to life on count two.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant asserts the trial court erred when it precluded him from presenting evidence that he denied the crimes to the police officer who was interviewing him. In addition, defendant argues he was denied effective assistance of counsel, because his trial attorney failed to raise an objection to the court's preclusion of this evidence under Evidence Code section 356. Finally, defendant asserts this court should strike the AIDS education fine and penalty assessment, because there is no statutory mandate to impose such fine.
Admissibility of Defendant's Denial He Committed the Crimes
Defendant asserts the court erred in refusing to allow him to introduce evidence that he denied committing the crimes during his interview with the investigating detective.
Underlying Facts
During the investigation of this case, a detective interviewed defendant about the victim's accusations of molestation. Defendant denied he committed the crimes. During trial, the substance of the interview was not presented to the jury during direct examination of the detective. In addition, the fact of defendant's denial that he committed the crimes was not presented to the jury. During redirect examination, the prosecutor asked the detective about the order in which he interviewed defendant and the victim.
The colloquy between the detective and the prosecutor during redirect examination was as follows:
"Q: Where the defendant is Hector Colin, you interviewed [the victim] first? "A: Yes.
"Q: Before interviewing the suspect?
"A: No, no. I'm sorry. Not in this case. In this case, I actually interviewed Mr. Colin first prior to interviewing [the victim].
"Q: I misunderstood. I thought your answers were you interviewed the victim]first. I know what happened, but this question you've just got, you interviewed Mr. Colin first?
"A: Yes, I did, as soon as I received the case.
"Q: Okay. Without going into the details surrounding that, who told you to do it this way?
"A: My supervisor.
"Q: Okay. And you did what your supervisor told you to do?
"A: Yes, sir."
Following this colloquy, defense counsel approached the bench with the prosecutor, and had an unreported conference with the trial court. When the bench conference ended, the court ruled the fact of defendant's denial he committed the crimes during the interview was not admissible, stating the following on the record: "[The prosecutor] certainly didn't get into any of the procedural aspects of the statement, whether Miranda was waived or not, whether [defendant] denied or not, nothing about the substance. It was more or less brought up as a result of [defense counsel's] question. And I don't think that justified allowing [defense counsel] to get in evidence that normally wouldn't be admissible."
Miranda v. Arizona (1966) 384 U.S. 436.
Analysis
Defendant asserts that because the prosecutor elicited testimony from the detective during redirect about his investigative interview, defendant should have been able to introduce evidence that he denied he committed the crimes during that interview.
The basis of defendant's claim is Evidence Code, section 356, which provides: "[w]here part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence."
"The purpose of [Evidence Code section 356] is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed. [Citation.] Thus, if a party's oral admissions have been introduced in evidence, he [or she] may show other portions of the same interview or conversation, even if they are self-serving, which 'have some bearing upon, or connection with, the admission . . . in evidence.' " (People v. Arias (1996) 13 Cal.4th 92, 156.)
" 'In applying Evidence Code section 356 the courts do not draw narrow lines around the exact subject of inquiry. "In the event a statement admitted in evidence constitutes part of a conversation . . . , the opponent is entitled to have placed in evidence all that was said . . . by or to the declarant in the course of such conversation . . . , provided the other statements have some bearing upon, or connection with, the admission or declaration in evidence. . . . " ' " (People v. Zapien (1993) 4 Cal.4th 929, 959.)
Here, while the detective testified during redirect examination about the timing of his interviews of defendant and the victim, he did not testify about the substance of the interview of defendant, whether Miranda warnings were given or waived, or any other particulars of the interview. Since no part of defendant's interview was admitted during redirect, defendant's statements denying he committed the crimes are inadmissible hearsay. (See People v. Gurule (2002) 28 Cal.4th 557, 605-606.) Evidence Code section 356, and its mandate that the entire statement must be admitted following the admission of part, is inapplicable in this case.
The trial court did not err in refusing to admit defendant's denial that he committed the crimes in this case.
Ineffective Assistance of Counsel
Defendant asserts his counsel was ineffective for failing to object pursuant to Evidence Code section 356 to the trial court's refusal to allow him to present evidence of his denials in the investigative interview.
To prevail on a claim of ineffective assistance of counsel, first, defendant must establish that " 'counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citation.]" (People v. Ledesma (1987) 43 Cal.3d 171, 216, quoting Strickland v. Washington (1984) 466 U.S. 668, 688.) In addition to prove that counsel's performance was deficient, defendant must also show he suffered prejudice. Specifically, defendant must show "there is 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." (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Staten (2000) 24 Cal.4th 434, 450-451.)
As discussed above, Evidence Code section 356 is inapplicable to the present case, because no part of defendant's statement during the interview was admitted into evidence. Therefore, defendant's counsel's failure to object to the court's preclusion of the evidence pursuant to Evidence Code section 356 was not ineffective, and did not fall "below an objective standard of reasonableness . . . ." (Ledesma, supra, 43 Cal.3d at p. 216.)
AIDS Education Fine
Defendant asserts the trial court erred in imposing a $70 AIDS education fine, and a $171.50 penalty assessment against him, because there was no statutory authority for the fine.
Here, defendant was convicted of violating Penal Code, sections 288.7, subdivisions (a) and (b), neither of which authorize the imposition of an AIDS education fine.
The Attorney General asserts that although Penal Code, sections 288.7, subdivisions (a) and (b) do not specifically authorize the imposition of an AIDS education fine, the fact that oral copulation with a person under the age of 18, Penal Code section 288a, subdivision (m) does mandate the imposition of the fine, and is a lesser included offense of Penal Code, section 288.7, subdivision (b), oral copulation with a child 10 years of age or younger, the fine was properly imposed in this case.
The Attorney General's argument is without merit. Penal Code section 1463.23 authorizes the imposition of an AIDS education fine for specified offenses only. The offenses of which defendant was convicted, Penal Code section 288.7, subdivisions (a) and (b) do not require the imposition of an AIDS education fine under Penal Code section 1463.23. Therefore, we will direct the trial court to amend the judgment, striking both the $70 AIDS Education fine and the $171.50 penalty assessment.
DISPOSITION
The $70 AIDS education fine and the $171.50 penalty assessment are stricken. As amended, the judgment is affirmed. The trial court is directed to amend the abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation.
RUSHING, P.J.
WE CONCUR:
DUFFY, J.
Judge of the Monterey County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.