Opinion
E072493
03-26-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE B. FABIAN, Defendant and Appellant.
Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1707313) OPINION APPEAL from the Superior Court of Riverside County. L. Jackson Lucky IV, Judge. Affirmed. Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury found defendant and appellant, Jose B. Fabian, guilty of two counts of oral copulation with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b), counts 1 & 3) and two counts of committing lewd or lascivious acts with a child under 14 years of age (§ 288, subd. (a), counts 2 & 4). The court sentenced defendant to the total determinate term of 10 years, plus the total indeterminate term of 30 years to life as follows: a determinate term of eight years on count 2 (count 2 was deemed the principal count); a consecutive determinate two-year term (one-third the midterm) on count 4; and two consecutive indeterminate 15-year-to-life terms on counts 1 and 3.
All further statutory references are to the Penal Code unless otherwise indicated.
After defendant filed a notice of appeal and counsel for Appellate Defenders, Inc., filed an amended notice of appeal, this court appointed counsel to represent defendant. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the facts, a statement of the case, and three potentially arguable issues: (1) whether the court erred in admitting evidence of uncharged sexual abuse purportedly committed by defendant against his niece; (2) whether the court erred in allowing the prosecution to amend the information during trial regarding the dates counts 3 and 4 were alleged to have occurred; and (3) whether imposition of sentence on any of the counts should have been stayed pursuant to section 654. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The People charged defendant by felony information with two counts of oral copulation of a child 10 years of age or younger (§ 288.7, subd. (b), counts 1 & 3) and two counts of committing lewd or lascivious acts with a child under 14 years of age (§ 288, subd. (a), counts 2 & 4). Counts 3 and 4 were alleged to have occurred between January 1, 2014 and January 1, 2016.
The original complaint and information are not contained in the record. Instead, both the original complaint and information appear to have been altered to reflect the court's grant of the People's motion to amend the information. Nonetheless, the contents of the original information is preserved by the court's commentary: "Then the last issue was the People requesting to amend the dates in Counts 3 and 4. They currently [read] January 1st, 2014 through I think it says January 1st, 2016. There is a People's request to amend the Information to change the later date from 2016 to January 1st, 2017." --------
The People filed an in limine motion requesting admission of defendant's niece's prior statements that when she was five or six years old, defendant rubbed her vagina over her clothing and had her rub his penis over his clothes. Defendant asked her not to tell anyone. Defendant's niece initially disclosed the molestation but recanted after significant family pressure.
At the hearing on the motion, defense counsel objected "because it's an uncharged crime situation. The People have not advanced any evidence at all regarding similarities between the charges against my client, or this particular alleged victim, and the one that's nonchargeable. I think it's highly prejudicial." The court observed, "I appreciate the defense's objection, but I think that based on the similarity in age and although the conduct is not identical, I will say that it is similar enough that I think that it is relevant because of the similarity in age, gender, and type of conduct that's alleged . . . ."
The court further noted, "So I think that because we're talking about the touching of the genitals with the child who is young that there is enough similarity under [Evidence Code section] 1108 that it is relevant. I agree that it is prejudicial, but I think that the Legislature has made a policy decision saying that they think that it's highly relevant—or highly probative . . . so I do not find in this case that the prejudicial effect substantially outweighs the probative value." "Here . . . I would say that the more recent conduct is more inflammatory than the prior conduct." The court ruled that defendant's niece's prior statements were admissible.
At trial, the victim testified that defendant lived with her grandmother. She would see him when she visited her grandmother; sometimes she would spend the night. The victim called defendant "grandpa." When they were watching television in the living room of his house, defendant touched her vagina with his penis.
The People played a video recording of an interview of the victim conducted on April 28, 2017, when she was seven years old. The victim said that when she went to her grandmother's house the previous day, defendant took off his clothes; he took off her pants and started licking her "cuca." She said her "cuca" was "something down here," from where she urinates. Defendant then put his penis in her "cuca." "And it was hurting a lot. 'Cause it—it hadn't, it had little spikes on right here." Her "cuca" turned red.
The victim said, "And then yesterday he was like doing it. And the other day he was like doing it." "He was doing the exact same thing." "He was doing—he was doing the, um, again and again. Like the same thing like yesterday happened." It happened "[a]gain and again and again."
Defendant had "little spikes" everywhere around his penis. He put his tongue in her mouth. It happened more than one time. The first time it happened she was six years old.
The victim further testified that when she was six and living at defendant's house, he put his tongue on her "cuca" three times. He also did it three times close to the time she told her parents. "It was always the same thing." Defendant penetrated her vagina with his penis, it hurt her, and his penis felt "spikey." The victim did not observe hair on defendant's private parts.
The victim's mother testified that the victim stayed at defendant's home for a week, between April 9 and 16, 2017. "Cuka" means vagina. On April 17, the victim disclosed the molestation to her mother. The victim's mother's husband went to the police on April 19. Since disclosing the matter, the victim no longer wished to be a girl; she now wished to be a boy.
Defendant's niece testified that defendant never did anything, or touched her in a way, that made her feel uncomfortable, and she never told anyone defendant had touched her sexually.
The People played an audio recording of defendant's niece speaking with an investigator on May 2, 2017. She told the investigator that when she was "very small" "like five, six" years old, defendant would "tell me [to] touch him in certain places that were inappropriate." He would walk into the restroom when she was using it and tell her to touch his penis over his clothing, which she did. He would touch her private parts over her clothing. It happened even before she was in the first grade. Defendant would tell her not to tell his wife because "this is our little secret."
The victim's stepfather testified that in April 2017, the victim spent the week at defendant's home. She also spent the week at defendant's home in 2016. A few nights after the victim's latest visitation, she revealed the molestation. He contacted the police. The victim began to be confused about her gender; she wanted to be a boy. The victim said, "being a girl . . . she gets hurt. Being a boy she doesn't." The victim's stepfather opined, "It is not normal changes from a girl who once was happy with who she was and now she wants to become a boy."
A sheriff's investigator testified that when defendant was arrested on April 28, 2017, a sexual assault examination was conducted on him. Defendant had coarse pubic hair from the hair growing back after being shaven; the hair was consistent with the victim's description of it being "spikey" and the pain she had incurred from that region of defendant's body.
After the People rested their case-in-chief, and the parties discussed jury instructions off the record, the court noted, "The People are asking that the instructions for Counts 2 and 4 allege a date range of January 2014 to January 2017 to conform with proof." The People corrected the court, "And your Honor, it's not [counts] 2 and 4. [Counts] 1 and 2, the date range is April 9th through the 21st of 2017, just as laid out in the Information. The People are requesting that in Counts 3 and 4, the People are requesting to allege via interlineation to conform with proof changing the date range from January 1st of 2014 through and including January 1st of 2016, that that should read January 1st of 2017. And that same date range being alleged for both Counts 3 and 4."
Defense counsel responded, "I don't think that was the evidence that came out anywhere. I think that—I know January '17 did, but not the '14. I will oppose that." The court continued the matter.
Defendant's wife testified she did not believe the charges against defendant were true. She believed the victim's stepfather was responsible for orchestrating the allegations against defendant in retaliation for having poorly translated legal documents for defendant. Defendant's wife affirmed that defendant shaved his pubic hair, but it was prickly, not spikey, and said the victim always appeared happy when playing with defendant.
Defendant testified that the victim's stepfather orchestrated the allegations against him because the victim's stepfather was the actual perpetrator. He denied ever touching the victim in an inappropriate manner. Defendant testified there were periods when he was alone with the victim. He stated that his private parts were shaven during the time the victim had visited, and that a few days after defendant would shave, it would become spikey.
During a break in defendant's testimony, the court resumed argument on the People's motion to amend the information. The court noted the information "currently [reads] January 1st, 2014 through I think it says January 1st, 2016. There is a People's request to amend the Information to change the later date from 2016 to January 1st, 2017. There was an objection by the defense." The court indicated it had researched the issue, citing People v. McKay (1979) 97 Cal.App.3d Supp. 59, 67-68, In re Davis (1936) 13 Cal.App.2d 109, and People v. Sherman (1962) 211 Cal.App.2d 419, 423-426, all of which would permit the court to allow the amendment.
Defense counsel objected, noting that the dates testified to during the preliminary hearing did not coincide with the dates of the proposed amendment. The court agreed, but observed that "the date of the offense is not changing the offense within the meaning of what is now . . . section 1009." The court granted the People's request to amend the information. After the jury rendered its verdicts, the court referred the matter out for the preparation of a probation officer's report.
With respect to the applicability of section 654, the probation officer observed: "Regarding Counts 1-4, the defendant sexually abused [the victim] multiple times, over the span of several years. Accordingly, it appears he had time to reconsider his actions before committing further criminal acts. As such, it does not appear sentencing limitations pursuant to [section] 654 apply to Counts 1-4."
At sentencing, the court noted that counts 1 and 3 required the imposition of 15-year-to-life sentences. As to the applicability of section 654, the People informed the court that although the law allowed the imposition of concurrent sentences, they requested the court imposed consecutive sentences. The court noted, "As to whether they should run consecutively, I think they should, but I'll get to that in a moment after I finish with the determinate terms."
With respect to counts 2 and 4, the court observed: "Although there were only two counts charged, the evidence suggests that this happened more than twice over a period of years, or at least months." "And so there was a separation in time where the defendant had the opportunity to reflect on his conduct, and yet chose to reoffend." "And for the reasons that I sentenced the [section] 288(a)s consecutively, I'm sentencing under 288.7 consecutively. Because we had a separation in time, and the defendant had an opportunity to reflect on his acts."
II. DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues.
III. DISPOSITION
The judgment is affirmed. (In re Davis, supra, 13 Cal.App.2d at pp. 112-113 [defendant not prejudiced by amendment of information, which changed the dates of the crimes because it did not have the effect of charging differing offenses]; People v. Sherman, supra, 211 Cal.App.2d at p. 424 ["mere change in the date of the alleged offense does not 'change the offense charged' and hence is permitted by section 1009"], disapproved of on another basis in People v. Perez (1965) 62 Cal.2d 769, 776, fn. 2.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. RAPHAEL
J.