Opinion
E071583
02-18-2020
THE PEOPLE, Plaintiff and Respondent, v. PABLO QUINTERO DIAZ, Defendant and Appellant.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1503654) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed. Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Pablo Quintero Diaz guilty of a lewd or lascivious act with a child under the age of 14 (Pen. Code § 288, subd. (a), count 1), a lewd or lascivious act on a child under the age of 14 by force or fear (§ 288, subd. (b)(1), count 2), and sexual penetration of a child under the age of 14 by force or fear (§ 289, subd. (a)(1)(B), count 3). The court sentenced defendant to an aggregate term of 22 years in state prison. On appeal, defendant contends the court prejudicially erred by excluding impeachment evidence that the victim possessed "a letter," which was a violation of her group home's rules. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTUAL AND PROCEDURAL BACKGROUND
The victim testified that late one evening in June 2015, when she was 12 years old, she ran away from a group home where she was living and walked to a convenience store approximately one mile away. Defendant was inside the store and asked the victim if she wanted anything. She responded that she did not and walked outside.
A woman outside the store stopped to talk to the victim while defendant was nearby. The woman commented, "You're so young," and then asked the victim, "what are you doing out here?" The victim told her she was 12 years old. The woman then told the victim to go with defendant, and explained that he had children and would not hurt her.
The victim told defendant that she missed her friends and cousins in Moreno Valley. Defendant agreed to give her a ride to Moreno Valley so she could see a cousin, and he let the victim use his cell phone to text her friends.
The victim then rode on a bicycle with defendant to his "box truck." While they were in the front of defendant's truck, the victim told defendant she was 12 years old. Defendant told the victim to get into the back of the truck. The victim climbed into the back of the truck through a hole in the cab. Defendant told the victim that if she ever needed something like sex, drugs, or alcohol, he could procure it for her. She told him that would not be necessary.
The attorneys and witnesses repeatedly referred to defendant's vehicle as a "box truck," which was apparently some type of truck, with a shell on the back, where a person could live. The People introduced into evidence two pictures of the truck, which are not included in the record. --------
Inside the truck, the victim noticed five pornographic DVDs. When she became bored, she began drawing in a notebook and eventually fell asleep.
The victim awoke as defendant was rubbing her stomach. She did not push his hand away because she was scared. Defendant then started rubbing her chest. At some point, he moved his hand underneath the victim's shirt and rubbed her bare breasts.
Defendant then moved his hand under the victim's pants and started rubbing her vagina. He inserted his finger into the her vagina, which hurt the victim. Defendant then put the victim's hand on his penis and tried to pull her pants down. The victim struggled to get defendant off of her. She told defendant to stop "so many times," but could not remember exactly how many. She also told him to get off of her, but he told her, "No."
The victim eventually left the truck, and defendant followed her. Soon after, she encountered a police officer, who said they had been looking for her. The officer drove the victim back to the group home, where she told the director and the officer what defendant had done to her.
She initially lied to the officer, telling him that two other girls were present in the truck with her. The victim believed she would be in less trouble if there were other people with her in the truck because people would not think she was stupid for getting in a truck with a stranger.
The victim then underwent an examination at the hospital. She told the examiner that defendant had sex with her, which was untrue. However, as a 12-year-old girl, she believed that if someone inserted their fingers into her vagina, that was sex. The victim also noted, "I told the nurse that he tried to rape me, but it was unsuccessful. He was unsuccessful."
The lead investigator obtained surveillance video from the convenience store. The video showed the victim in the store around midnight on June 9, 2015; she went to the back of the store to obtain a drink. The investigator set up an interview of the victim with the Riverside County Child Assessment Team. The investigator was observing the interview from a live-feed video in another room. After the interview was completed, he spoke with the victim. He indicated there was a discrepancy regarding her report of whether she had been raped. He asked her if someone putting their fingers inside her constituted rape; she said that it did.
The victim told the investigator she could help him locate defendant's box truck. The investigator drove her around the area and eventually located what the victim said was the box truck. The box truck had boarded up windows, was nonoperational, and appeared to be someone's home. The officer used the license plate number to identify the registered owner.
The investigator's internet research connected defendant to the registered owner, a woman believed to be defendant's wife. From his research, the investigator also obtained a picture of defendant. The picture of defendant matched one of the people the investigator had observed on the surveillance video from the convenience store. The investigator created a six-pack photographic lineup with defendant's picture from which the victim identified defendant as the person who had molested her.
The investigator obtained a warrant for the box truck, had it towed, and conducted a search. Inside the truck, he found the notebook in which the victim said she had been writing. He also found around 15 to 20 pornographic videos, which included material that appeared to show a fetish toward young girls. On July 15, 2015, he arrested defendant and obtained a blood sample pursuant to the warrant.
A sexual assault nurse testified that she conducted a physical examination of the victim. The victim reported that defendant had attempted to rape her. While examining the victim, the nurse found an abnormal amount of redness to the vestibule area of the victim's hymen, which was consistent with the victim's report of digital penetration. The nurse also swabbed the victim's right breast because the victim reported defendant had licked her breast.
The criminalist assigned to conduct DNA testing found male DNA on the victim's vulva, anal, neck, and perioral swabs. Each of the swabs reflected the transfer of body fluid, not simply contact. The criminalist could not identify the particular individual to whom the fluids belonged; however, the breast swab matched defendant's DNA profile.
II. DISCUSSION
Defendant contends the court prejudicially erred in excluding impeachment evidence that the victim possessed a letter, which was a violation of her group home's rules. We disagree.
In an oral in limine motion, defense counsel below sought to admit evidence that during a search of the victim's personal belongings at the group home, employees found "a letter," which was a violation of the house rules. Defense counsel stated: "What I would like to have come in is possibly that she had basically broken the rules of the home about being in possession of something that's called 'contraband.'" Defense counsel did not seek to admit the contents of the letter and stated: "All the jury can hear is . . . that this is a letter that she was not allowed to possess. That's it. It's against house rules. That's all I need." The court asked counsel for what purpose he sought admission of the letter; counsel responded that it was relevant of the victim's willingness to lie. Defense counsel argued that the victim's possession of the letter was relevant to establish the victim's pattern of making things up to escape punishment, e.g., the victim purportedly threatened to commit suicide after being found in possession of the letter in order to escape punishment. The court indicated it was not inclined to allow evidence of a threat to commit suicide.
After the parties discussed other matters, the prosecutor asked the court: "Are you allowing the defense to ask about [the letter] under the theory that she's hiding contraband?" The court responded: "It's not relevant, unless I'm allowing him to go into—breaking the rules is not relevant for impeachment, unless it somehow was a predicate for—that was a motive to lie about the suicide, and right now, we're not going there. [¶] So the fact that she broke the rules at the home, is just not relevant"
Defense counsel argued: "The way I'm looking at things is if she broke the rule, and they found the letter, she knows she's in trouble. So she attempts suicide—or makes this attempted suicide, so the group home's focus goes away from punishing to more empathy and sympathy. And then, the same night, she's gone, she runs away temporarily, and she's in big trouble now, because she left the home at late hours. She's gone for many, many hours, until the police brought her back to the house, and now she knows she's in great trouble. So she concocts this bigger story—or a story that's bigger than it is, alleging the three counts in this case." The court summarized defense counsel's argument: "First, she broke the rules by having a letter she wasn't supposed to have. When she knows that she was going to get in trouble for that, she says 'suicide.' When that doesn't work, she comes back and says, 'rape.'" Defense counsel responded: "Right." The court ruled: "All right. My ruling is the same. We're not going into the suicide attempts."
"Any '[m]isconduct involving moral turpitude may suggest a willingness to lie . . . .'" (People v. Anderson (2018) 5 Cal.5th 372, 408.) "'"[T]he admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude."'" (People v. Edwards (2013) 57 Cal.4th 658, 722.) "Immoral conduct is admissible for impeachment even though the witness was not convicted, or even if the conduct did not constitute a criminal offense. [Citation.] Admission of such prior misconduct evidence remains subject to the trial court's discretion under Evidence Code section 352, which 'empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.' [Citation.] 'In general, a misdemeanor—or any other conduct not amounting to a felony—is a less forceful indicator of immoral character or dishonesty than is a felony.'" (People v. Rivera (2003) 107 Cal.App.4th 1374, 1380.) "[I]impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value." (People v. Wheeler (1992) 4 Cal.4th 284, 296-297, superseded by statute on other grounds as stated in People v. Duran (2002) 97 Cal.App.4th 1448, 1459.)
"[T]he definition of an 'act of moral turpitude' . . . is an act 'contrary to honesty and good morals' [citation]; it is something done 'contrary to justice, honesty or good morals.'" (Lanz v. Goldstone (2015) 243 Cal.App.4th 441, 466.) "[M]oral turpitude [is] 'an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty.'" (In re Grant (2014) 58 Cal.4th 469, 476.)
"The trial court has broad discretion in determining the admissibility of evidence. [Citation.] 'A trial court's ruling to admit or exclude evidence offered for impeachment is reviewed for abuse of discretion and will be upheld unless the trial court "exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice."'" (People v. Bedolla (2018) 28 Cal.App.5th 535, 555.) "If the alleged impeachment evidence was erroneously excluded, we review errors in the application of the 'ordinary rules of evidence' such as Evidence Code section 352 under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836 . . . . [Citation.] Under this standard, if a trial court erroneously excludes evidence, a defendant must show on appeal that it is reasonably probable he or she would have received a more favorable result had that evidence been admitted." (People v. Ghebretensae (2013) 222 Cal.App.4th 741, 750.)
First, the court acted within its discretion in excluding evidence that the victim possessed a letter, which was a violation of her group home's rules. We discern no moral turpitude in the victim's possession of a letter because the act itself does not suggest a willingness to lie or amount to immoral conduct. At best, the act is malum prohibitum, not malum in se. Thus, the court properly excluded the evidence.
Second, any error in admitting the evidence was harmless. (People v. Dalton (2019) 7 Cal.5th 166, 217 [Erroneous exclusion of impeachment evidence is harmless unless there was a reasonable probability the defendant would have achieved a more favorable result had the error not occurred.].) The fact that the victim possessed a letter, which was against the group home's rules, had very little, if any, probative value on the veracity of the victim's testimony. Defendant was able to impeach the victim's testimony with evidence that she lied about other girls being present in defendant's truck with her, evidence that the victim lied about being raped, and evidence that she violated the group home's rules by running away. The jury obviously credited the victim's testimony regardless.
Moreover, overwhelming evidence substantiated the victim's testimony that defendant had molested her. The investigator found surveillance video at the convenience store, which corroborated the victim's testimony that she and defendant were both at the store. The victim was able to help the investigator find defendant's truck. During a search of the truck, the investigator found pornographic DVDs like the ones the victim said she saw and found the notebook in which the victim drew.
A physical examination of the victim was consistent with the victim's report of digital penetration, male body fluid was found on several parts of her body, and a breast swab from the victim matched defendant's DNA profile. Thus, overwhelming evidence supported the jury's verdicts, and there was no reasonable probability that admission of the victim's possession of a letter, which was a violation of her group home's rules, would have achieved a result more favorable to defendant.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. CODRINGTON
J.