Opinion
F075065
05-17-2018
THE PEOPLE, Plaintiff and Respondent, v. DEMETRIUS CUMMINGS, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or reiving on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Merced Super. Ct. No. 15CR-04400)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Peña, J.
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INTRODUCTION
Appellant/defendant Demetrius Cummings was convicted of committing multiple sexual offenses against his girlfriend's two daughters and her niece. He was sentenced to an aggregate term of 45 years to life.
On appeal, his appellate counsel has filed a brief that summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant filed a letter brief that challenges the credibility of the prosecution's witnesses. We affirm.
FACTS
R.S. was the mother of two daughters: K.S., born in 1994; and L.W., born in 1996.
Defendant and R.S had known each other since 1991; he was not the father of her children. In 2005, defendant and R.S. were in a dating relationship, and defendant moved in with her.
In 2015, R.S. decided to leave defendant because of problems in their relationship. Shortly after she made this decision, R.S. learned that defendant had been sexually molesting her niece, B.D., who had lived with the family. When she confronted her daughters with B.D.'s statements, K.S. and L.W. also revealed that defendant had sexually molested them for several years.
The testimony from the three children about when defendant molested them was based on the following timeline of when and where the family was living.
The family's residences
Defendant and R.S. began living together in San Jose in 2005. At that time, R.S.'s two daughters were living with R.S.'s mother in Palo Alto. The two girls visited defendant and R.S. on the weekends and lived with them in the summer.
From 2004 to 2006, R.S. worked at a call center in Concord. She often worked weekends and was gone from the home for 20 hours because of the commute and work hours. When the two girls visited on weekends, they spent time with defendant if R.S. was at work.
In 2006, defendant, R.S., and the two girls moved to Stockton and lived with defendant's brother. As of 2006, R.S. no longer worked outside the house because she had gastric bypass surgery.
In 2007, R.S.'s family lived with her mother in Palo Alto.
In 2008, defendant, R.S., and the two girls moved to Atwater.
In 2009, R.S. had to travel to Merced every week for medical treatment because of problems from her surgery. On the treatment days, she would be gone from the house for six to 12 hours.
B.D. (born 2001) was R.S.'s niece. She lived with her father (R.S.'s brother) in San Jose, and she visited R.S. and her family on holidays.
In 2010, B.D. and her two brothers moved in with defendant, R.S., and her daughters in Atwater.
When B.D. moved in with her family, R.S. testified the girl had behavioral problems. R.S. hired tutors and a counselor for her, and B.D.'s behavior and schoolwork started to improve. R.S. also obtained counseling services for both K.S. and L.W. K.S. was six years old and L.W. was seven years old, and they received counseling for learning disability and behavior issues.
In April 2013, R.S. and defendant became subjects of an investigation by Child Protective Services because R.S. hit B.D. They were ordered to attend parenting classes and they complied.
R.S. testified she regularly asked K.S. and L.W. if anyone was physically or sexually abusing them. Both girls said no. However, R.S. later realized that when they lived with defendant in Atwater, the girls regularly wore long sleeve clothes and covered their bodies. They had not worn such clothes before defendant lived with the family.
L.W.'s trial testimony
L.W. was 20 years old when she testified at defendant's trial. L.W. testified she was nine years old when defendant started to live with her family in San Jose in 2005. She loved and trusted him, and she called him "Dad."
L.W. testified that one day in the summer of 2005, when they were living in San Jose, L.W. asked defendant about sex because she was curious. Defendant showed her an adult pornographic video. L.W. had never seen such a thing before. After she watched it, defendant asked L.W. if she wanted to try it. L.W. agreed, and they had intercourse and oral sex.
L.W. testified that defendant said she had to keep quiet about their sexual activities if she wanted to continue doing it. L.W. agreed because she wanted to continue. L.W. testified she repeatedly engaged in sexual activities with defendant almost every time she was at the San Jose home and her mother was at work. K.S. was home during some of the incidents but in another room.
L.W. testified that after five sexual incidents, she told K.S. that she was having sex with defendant. K.S. seemed surprised. L.W. continued to talk to K.S. about what was going on but they did not tell their mother. L.W. was afraid that it would "hurt" her mother if she found out. L.W. understood that defendant would stop having sex with her if anyone found out.
L.W. testified that defendant's sexual activities with her stopped when the family moved from San Jose to Stockton, where they lived with defendant's brother. L.W. believed defendant did not have sex with her in Stockton because there were more people around the house.
K.S. testified that defendant began having sex with her when the family lived in Stockton. R.S. testified that L.W. began to display behavioral problems when they were living in Stockton.
L.W. testified that she was in the sixth grade when her family moved to Atwater. Within a month or two after moving there, defendant resumed his sexual activities with L.W. in her mother's bedroom or the living room. They had oral sex and intercourse when R.S. left for her weekly medical treatments. Defendant also touched her private areas under her clothes. K.S. was sometimes at home but in another room.
L.W. went to a counselor during this time, but continued to keep these sexual acts a secret because defendant had taken over the role of being her father, and she knew they would have to stop if anyone found out. She did not tell her mother because she knew it would break her heart.
L.W. testified she began to suspect that defendant was also having sex with her sister, K.S., and became a little jealous. She asked K.S., who occasionally revealed details to her.
L.W. testified that she was 16 years old when her younger cousin B.D. moved in with the family. L.W. did not suspect that anything was going on between defendant and B.D., and B.D. never said anything. However, defendant told L.W. that he showed pornography to B.D. and had sex with the girl. He made this statement to L.W. after the first time he had intercourse with B.D.
L.W. was shocked when she learned about B.D. because she thought "it was just the triangle" of defendant, K.S., and herself. She was upset that the "triangle" had expanded to her younger cousin, but she did not tell her mother.
L.W. testified her final sexual encounter with defendant occurred on June 21, 2015, when she was home alone with defendant. She was 18 years old. She did not realize that it was the last incident, but it just worked out that way.
K.S.'s trial testimony
K.S. was 22 years old when she testified at trial. K.S. called defendant "Dad." She was 11 years old when her family lived in Stockton with defendant's brother. One day, K.S. was with defendant in the home's basement while her mother was upstairs. K.S. asked defendant why he was spending so much time alone with her sister, L.W. K.S. testified defendant did not really reply. Instead, he had sexual intercourse with K.S. and then showed her pornographic videos.
K.S. testified defendant had sex with her multiple times when they lived in Stockton. These acts included intercourse and oral sex, and they occurred either in the house or in defendant's car.
K.S. testified that when her family moved to Atwater, defendant continued having sexual intercourse with her. The incidents happened in their house when her mother left for medical treatments and no one was home. K.S. was embarrassed and kept everything a secret because she did not want to hurt her mother.
K.S. testified she often told defendant that she did not want to have sex with him. Defendant kept asking her until she gave in. He promised he would do her chores if she had sex with him.
K.S. knew defendant was also having sex with L.W., but she did not talk about specific incidents with her sister.
K.S. testified she did not tell her teachers or friends about the sexual incidents because she was embarrassed. She did not tell her mother because she knew her mother would blame herself. K.S. wanted it to stop but did not feel like she had any control. She tried not to be around defendant when no one else was home, but the incidents kept happening.
K.S. believed that she had either oral sex or intercourse with defendant over 20 times.
B.D.'s trial testimony
B.D. (born 2001) was 15 years old when she testified. B.D. called defendant her "Uncle D." In 2010, B.D. started living with defendant and her aunt, R.S., in Atwater when she was in the fourth grade.
B.D. testified that she went to the laundromat with defendant every weekend. They waited in his van for the clothes to finish. When they were in the van, defendant showed her adult pornographic videos on his cell phone. On these occasions, defendant touched B.D.'s body and private parts under her clothes and had her perform acts of oral copulation on him. He also performed these acts when they were at home, and he showed her pornographic videos when the other family members were asleep or R.S. was at a doctor's appointment. Defendant and B.D. never had sexual intercourse.
R.S. testified that defendant did the laundry on the weekends and took B.D. with him.
B.D. testified she wondered whether anything else was going on in the house, but she never told K.S. or L.W. what defendant was doing to her. She did not know what defendant was doing to her cousins.
In 2012 or 2013, B.D. moved back to her father's house in San Jose; she was in the sixth grade. Defendant and R.S. occasionally visited, but defendant did not touch her again. B.D. still did not tell anyone what defendant did because she was embarrassed, scared of getting in trouble, and afraid that defendant might do something to her even though defendant never threatened her. B.D. testified she enjoyed living in Atwater and often asked to return to her aunt's house.
R.S. decides to leave defendant
In June 2015, R.S. decided to leave defendant because of problems between them, and she had started a relationship with another man. She did not know that defendant had sexually molested her niece and her daughters. R.S. told defendant that she was leaving him. Defendant threatened R.S.'s new boyfriend if she left him.
R.S. informed her two daughters that she was going to leave defendant and move away from Atwater. K.S., who was 20 years old, said she was ready to leave but wanted to finish her college semester. L.W., who was 18 years old, said she wanted to stay with defendant.
B.D. tells her parents about the molestations
In 2012 or 2013, after B.D. moved back to San Jose, her father and stepmother discovered that B.D. had posted topless photographs of herself on social media websites. They grounded her for doing that. Her father also realized that someone in the household was looking at pornographic sites on his cell phone, but he did not suspect B.D.
In August 2015, B.D. was in the eighth grade when her stepmother realized that she was watching pornographic videos. B.D.'s parents confronted her about it, and B.D. admitted that she was looking at the videos. B.D. told her parents that she learned about the videos from defendant, and he had sexually molested her.
R.S. learns that defendant molested B.D.
At the time that B.D. revealed the molestations to her parents, R.S. was in Palo Alto with defendant and L.W. K.S. was in Atwater.
R.S.'s family contacted her, and told her that B.D. said defendant had sexually molested her. R.S. asked a friend to drive her to San Jose so she could talk to B.D. Defendant did not go with R.S.
When R.S. reached San Jose, she talked to B.D. and asked about defendant. B.D. started crying and R.S. felt heartbroken.
R.S. called the San Jose Police Department and was advised to contact the Atwater Police Department since that was where B.D. was molested. R.S. immediately called the Atwater Police Department, and she was instructed to bring B.D. to Atwater to file charges. R.S. gave her brother gasoline money so he could drive B.D. to Atwater.
Defendant's statements in San Jose
Defendant drove to San Jose to pick up R.S. and L.W. at her brother's house.
At some point, R.S. confronted defendant with B.D.'s statements, and said he would go to jail if she found out that he was alone with B.D. Defendant told R.S. that "it was bullshit."
B.D.'s father testified defendant approached him in the backyard and asked what was going on with B.D. B.D.'s father asked defendant if he showed pornography to B.D. Defendant denied it and became defensive. Defendant tried to make it seem like B.D. could have lied.
R.S. told L.W. about B.D.'s accusations. L.W. acted surprised, "like no way this could be happening." L.W. testified she did not tell R.S. that defendant also had sex with her, because she knew it would hurt R.S., and she did not want defendant to get in trouble.
R.S. returns to San Jose
Later that same day, defendant drove back to Atwater with R.S. and L.W. When they reached Atwater, defendant got out of the car and went into their home. R.S. stayed in the car with L.W. and told her it was really serious and asked if anything happened.
R.S. went into the house, told K.S. to go outside, and advised her about B.D.'s statements. K.S. testified she was shocked and upset, and felt she had failed B.D. by not telling anyone about defendant's conduct. However, K.S. testified she was not ready to talk about it, and told her mother that she did not know what B.D. was talking about.
The victims disclose the molestations
On August 21, 2015, the same day she returned from San Jose, R.S. took L.W. and K.S. to the Atwater Police Department. The girls were interviewed by officers, and they revealed that defendant had sexually molested them.
L.W. testified that after she finally told the police that defendant molested her, she was hurt because she lost her father figure. L.W. testified that things became worse and "kind of rough" for her after she told the police. L.W. felt guilty that she had hurt her family. L.W. was upset and felt "damaged inside and ... emotionally damaged to where I had to be admitted to the hospital." L.W. tried to harm herself, and she was hospitalized for mental health problems just days after she gave her statement to the police, because she felt "her world was over."
L.W. testified that she never talked about the sexual incidents with B.D. R.S. never told L.W. to lie about what happened or to falsely accuse defendant.
K.S. testified that when she told the police that defendant molested her, she felt relieved to finally talk about it. K.S. had never discussed the sexual molestations with B.D.
On the same day that R.S.'s daughters gave statements to the police, B.D.'s father drove her to Atwater where she was also interviewed by the police. B.D. told the police that defendant had molested her because she felt it had been going on too long.
Defendant's arrest
In the early morning hours of August 22, 2015, after the police had interviewed the three girls, defendant was arrested at the family's home in Atwater.
R.S. testified that after defendant was arrested, K.S. no longer wore long sleeves.
The police obtained a search warrant for a cell phone that R.S. said belonged to defendant. The officers discovered multiple pornographic sites on the cell phone's web history. They could not tell when or who had viewed those websites.
DEFENDANT'S TRIAL TESTIMONY
Defendant testified he started living with R.S. in 2005, and helped R.S. raise the children. He never had sexual contact with any of the girls, he did not molest them, he never showed them pornography, and they were lying.
When B.D. and her two brothers moved in, they were out of control and did inappropriate things. They played the "Touching Game" where B.D. would yell that she had been touched " 'in my private area.' " Defendant and R.S. told B.D. that it was not appropriate to play that game. R.S. hit B.D. on one occasion, and she was ordered to attend parenting classes. Defendant said he was not subject to the order but went with R.S. to support her.
Defendant went to the laundromat on the weekends, and B.D. and her brothers often accompanied him. The stores were in busy commercial areas and the windows on his van were not covered.
Defendant testified that his relationship with R.S. changed over time. She spent a lot of time with someone on the telephone, and defendant later learned that she was becoming involved with one of his friends. In 2015, R.S. told defendant that she was leaving him and moving out of Atwater. She offered to pay defendant $1,000 a month so that K.S. and L.W. could continue to live with defendant in Atwater and stay in school.
Defendant testified about the circumstances leading to his arrest. Defendant, R.S., and L.W. drove to Stanford University Hospital to see R.S.'s sister. After the visit, they went to see R.S.'s mother. R.S. talked to her mother, and then told defendant that B.D. had been looking at pornography on a cell phone. R.S. asked defendant if he had anything to do with it, and defendant said no.
Defendant went to Redwood City to support his son at a court hearing, and R.S. went to B.D.'s home in San Jose. Defendant later picked up R.S. in San Jose. Defendant asked B.D.'s father what was going on with her. B.D.'s father replied that defendant knew B.D., defendant said yes, and the conversation ended. Defendant saw B.D., but they did not speak.
Defendant testified he drove back to Atwater with R.S. and L.W. R.S. was constantly texting during the trip. When they got home, R.S. and L.W. stayed in the car. Defendant went in the house. He later saw R.S. run into the house to get K.S., and they ran out the front door.
Defendant testified he went to bed. He was asleep when the police knocked on the door later that night. Defendant claimed that by the time he got out of bed, the police officers were already in the house.
PROCEDURAL HISTORY
On November 10, 2015, an information was filed that charged defendant with count 1, committing oral copulation or sexual penetration on B.D., a child under the age of ten years old, when he was 18 years of age and older, between January 1, 2010, and November 28, 2011 (Pen. Code, § 288.7, subd. (b));, count 2, commission of a lewd and lascivious act on L.W., a child under the age of 14 years, between January 1, 2005, and April 3, 2010 (§ 288, subd. (a)); and count 3, commission of a lewd and lascivious act on K.S., a child under the age of 14 years, between January 1, 2005, and March 7, 2008 (§ 288, subd. (a)).
All further statutory citations are to the Penal Code unless otherwise indicated.
As to counts 2 and 3, a special circumstance was alleged pursuant to the "one strike" law, that defendant committed the sexual offenses against more than one victim in violation of section 667.61, subdivisions (b) and (e)(4).
On December 21, 2016, after a jury trial, defendant was convicted as charged, and the jury found the multiple victim special allegations true as to counts 2 and 3.
On January 20, 2017, defendant was sentenced to three consecutive terms of 15 years to life pursuant to the "one strike" law of section 667.61, subdivision (b), for an aggregate term of 45 years to life. The court issued a protective order for defendant not to have any contact with the victims K.S., L.W., and B.D.
On January 25, 2017, defendant filed a timely notice of appeal.
DISCUSSION
As noted above, defendant's counsel has filed a Wende brief with this court. The brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on September 12, 2017, we invited defendant to submit additional briefing.
On October 18, 2017, defendant filed a letter with this court and raised several issues: He challenged the credibility of the trial testimony from R.S. and the three children; asserted their statements were inconsistent; his cell phone was left in the house when he was arrested and anyone could have used it before it was examined by the police; he did not obtain that cell phone until 2013; B.D. had used her father's cell phone to post naked photographs of herself, and she did not use defendant's cell phone; R.S. believed defendant was involved with another woman; he heard R.S. talking on the telephone with another man, with whom she was having a relationship; and R.S. always made him stay with the children.
Defendant claimed the police entered his house without permission or a warrant, arrested him at gunpoint, pulled him out of the house by force, and did not read him his rights. Defendant asserted that an officer interviewed him and laughed at his denials. Finally, defendant asserts that R.S. made up the story to get him out of the way so she could live with another man.
Defendant's issue letter also raises inconsistencies between the factual statement in the Wende brief and the record. Defendant notes that in the Wende brief, appellate counsel wrote that R.S. had cancer surgery, but the record showed that R.S. had gastric bypass surgery and did not have cancer. R.S. testified at trial that she had gastric bypass surgery, and that she went to Merced for weekly iron infusions at a cancer center.
Defendant also complains that the Wende brief erroneously stated he started living with R.S. in 2005, but it was really in 2006. The Wende brief cited R.S.'s testimony that she started living with defendant in 2005. According to the trial transcript, both R.S. and defendant testified they were living together in 2005.
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence - that is, evidence that is reasonable, credible, and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] ... We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.]' [Citation.]" (People v. Covarrubias (2016) 1 Cal.4th 838, 890.)
"In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Defendant's complaints about the trial testimony of the witnesses raise questions of credibility that were resolved by the jury. There was nothing inherently improbable about the testimony, the testimony of the three girls was consistent with the timeline of where the family was living, and his convictions are supported by substantial evidence.
In addition, the prosecution did not introduce evidence that defendant made any postarrest statements, and the police obtained a search warrant to examine the cell phone.
After independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.