Opinion
D060466
01-22-2013
THE PEOPLE, Plaintiff and Respondent, v. JOSE FIGUEROA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD230164)
APPEAL from a judgment of the Superior Court of San Diego County, Laura W. Halgren, Judge. Affirmed.
The People charged Jose Figueroa with 22 counts of sexual misconduct involving two children, B.M. and R.R. At the conclusion of evidence at trial, the court granted the People's motion to dismiss six of the original 22 counts (counts 6 & 8 involving B.M.; counts 16, 18, 20 & 22 involving R.R.).
The jury subsequently convicted Figueroa of six counts of sexual misconduct involving B.M. including count 1, sodomy with a child 10 years old or younger (Pen. Code, § 288.7, subd. (a)); counts 4 and 5, oral copulation with a child 10 years old or younger (§ 288.7, subd. (b)); counts 7 and 9, lewd act upon a child (§ 288, subd. (a)); and count 12, forcible lewd act upon a child (§ 288, subd. (b)(1)). As to counts 7, 9 and 12, the jury also found true the allegations that Figueroa had engaged in substantial sexual contact with B.M. (§ 1203.66, subd. (a)(8).)
All statutory references are to the Penal Code unless otherwise specified.
The jury found Figueroa not guilty on count 14, lewd act upon a child (§ 288, subd. (a)) against B.M. The jury could not reach a decision on the remaining five counts charging Figueroa with sexual misconduct against B.M., specifically counts 2 and 3, sodomy with a child 10 years or younger (§ 288.7, subd. (a)); counts 10, 11, and 13, lewd act upon a child (§ 288, subd. (a)).
With regard to the four counts involving R.R., the jury found Figueroa not guilty on count 19, lewd act upon a child (§ 288, subd. (a)). The jury was unable to come to a decision on the remaining three counts involving R.R., specifically, count 15, oral copulation with a child 10 years or younger (§ 288.7, subd. (b)); and counts 17 and 21, lewd act upon a child (§ 288, subd. (a)). At sentencing, the court dismissed each count, without prejudice, on which the jury could not reach a verdict. The court then sentenced Figueroa to prison for an indeterminate term of 55 years to life and a determinate term of 16 years.
Figueroa appeals, contending the court deprived him of a fair trial by: (1) finding R.R. competent at the preliminary hearing; (2) finding R.R. competent at the competency hearing prior to trial; and (3) admitting R.R.'s preliminary hearing testimony at trial after the court found R.R. unavailable at trial.
FACTUAL AND PROCEDURAL HISTORY
In October 2010, Maria R. lived in a three-bedroom apartment in San Diego with several of her children including Beatrice, 25; Cindy, 19; S., 15; M., 12; and nine-year-old B.M. Beatrice also has three children who live with Maria R.. In addition to Maria R.'s own children and Beatrice's children, Maria R.'s granddaughter, R.R., also lived with Maria R. in October 2010. R.R.'s biological mother, E., is one of Maria R.'s older daughters who presently resides in Mexico. Maria R. has raised R.R. since her birth, and R.R. believes Maria R. is her actual mother.
Maria R. and Figueroa had been dating for approximately six years prior to October 2010. Figueroa is not the father of any of Maria R.'s children. Figueroa lived a few blocks away from Maria R.'s apartment, but Figueroa slept over almost every night in Maria R.'s bedroom with her. However, Maria R. did not allow Figueroa to be at the apartment when Maria R. was not there.
On October 11, 2010, B.M. went with Figueroa to his house to care for a rabbit and get water before dinner. When B.M. returned to her home with Figueroa, B.M. acted very frightened. Maria R. asked B.M. why the trip with Figueroa had taken so long. B.M. did not answer and played with her hands as if she were scared. Figueroa told Maria R. that B.M. might be scared because when we were going "to get the water, there were two black people there." Maria R. continued asking B.M. to answer her question and B.M. began to cry. Maria R. asked B.M. what was wrong. B.M. then told Maria R. that her stomach hurt. Maria R. had never seen B.M. act in such a way. Maria R. continued to ask B.M. what was wrong and if Figueroa had done something to her.
Olivia C., Cindy's girlfriend who also lived with Maria R. and the other children, offered to take B.M. with her to pick Cindy up from work. After Olivia picked up Cindy, Cindy confronted B.M. B.M. told Cindy that Figueroa had touched her and pointed to her crotch area. Olivia subsequently called the police. After arriving back at Maria R.'s apartment, Cindy talked with Stephanie and Beatrice about what B.M. had told her. Beatrice subsequently told Maria R. that B.M. said Figueroa touched her. Later that night, B.M. told Maria R. herself what had happened with Figueroa earlier that evening. When Maria R. asked where Figueroa touched her, B.M. said Figueroa had pulled her pants down and touched her "private part." B.M. was shaking and crying.
After the police arrived, an officer took B.M.'s statement privately at the scene. B.M. told the officer that Figueroa pulled her pants down and started rubbing her private part. She also told the officers that Figueroa said it was a secret between him and her. B.M. did not mention any other sex acts to the officer. After speaking with the police, officers escorted B.M. and Maria R. to the hospital so B.M. could undergo a medical examination.
At Rady Children's Hospital in the Chadwick Center, pediatrician Marilyn Kaufhold performed a sexual assault examination on B.M. on October 11, 2010 which lasted into the early morning hours of October 12, 2010. Dr. Kaufhold retrieved swabs from B.M.'s mouth, genital area, and inside of her anal canal to test for the presence of semen and sperm. Additionally, on October 12, 2010 around 3:45 a.m., a sexual assault nurse performed a sexual assault examination on Figueroa at the San Diego Police Department, which included collecting a DNA swab sample from Figueroa's mouth.
On October 12, 2010, Laurie Fortin, clinical coordinator for the forensic interviewing program at the Chadwick Center at Rady Children's Hospital, interviewed B.M. B.M.'s interview with Fortin was recorded and played for the jury. In the interview, B.M. told Fortin that she was watching television when Figueroa called her into his room and said "you wanna fuck?" B.M. knew "fuck" meant sex and became scared. Figueroa told B.M. to lie down on the bed. After B.M. laid on the bed, Figueroa pulled her pants and underwear down. Figueroa pulled down his own pants and then started touching B.M.'s vagina. B.M. saw Figueroa's penis, describing it as brownish with hairs. Figueroa touched B.M.'s vagina with his penis. Figueroa asked B.M. if she wanted to touch his penis. B.M. told Figueroa she did not want to touch him. Figueroa then grabbed B.M.'s hand and made her touch his penis. After Figueroa put B.M.'s hands on his penis, Figueroa ejaculated onto the floor. Figueroa told B.M. not to tell anyone what had happened and that it was a secret between them.
Later the same day B.M. spoke with Fortin. Maria R. was crying in her room when R.R. approached her and told her not to cry. R.R. then told B.M. to tell Maria R. the truth about how B.M. and Figueroa used to kiss in Maria R.'s bedroom. B.M. told Maria R. that R.R. was lying. On one occasion over the next month, Maria R. asked B.M. more about the incident with Figueroa on October 11, 2010 but B.M. did not want to talk more about it and changed the subject. Maria R. never heard B.M. talking to R.R. or the other children about the incident with Figueroa.
On December 3, 2010, Walter Escobar, an investigator for the district attorney's office, interviewed B.M. Escobar tape recorded the interview. B.M. said Figueroa did not put his penis in her vagina but that Figueroa did put his penis in her "butt."
B.M. testified during trial consistent with her prior interviews with Fortin and Escobar. In addition, B.M. testified at trial that on October 10, 2011, after Figueroa touched the outside of her vagina, Figueroa then inserted his penis inside her butt and "moved" his penis in and out. B.M. stated that Figueroa subsequently put his mouth on B.M.'s vagina and B.M.'s lips touched his penis. B.M. testified that after she put her clothes on and washed her hands, Figueroa showed her a pornographic movie.
B.M. also testified that Figueroa had touched her another time before October 10, 2011. B.M. had been alone with Figueroa in Maria R.'s bedroom when Maria R. was not home. B.M. testified that Figueroa's penis touched the inside of her butt, B.M. touched Figueroa's penis, Figueroa put his penis in her mouth, and Figueroa put his mouth on B.M.'s vagina. B.M. testified that she did not disclose all of what happened during her previous interviews "because it was a lot."
A criminalist from the San Diego Police Department Crime Lab testified B.M.'s external genital swabs tested positive for the presence of semen and sperm. The criminalist also testified that B.M.'s rectal swabs had a weak positive result for semen and sperm and her oral swab had a weak positive result for semen and a negative result for sperm. Another criminalist from the crime lab testified she compared the DNA from the sperm cells found on B.M.'s external genitalia and rectal swabs to the DNA from the mouth swabs taken from Figueroa. The DNA from B.M.'s swabs matched Figueroa's DNA.
Fortin testified about her interview with B.M. on October 12, 2010. Fortin has specialized in the area of child sexual abuse for 21 years, completed over 2,200 forensic interviews, and testified as an expert witness in approximately 30 child sexual abuse cases. Fortin testified that forensic interviews are videotaped to record a child's demeanor, affect, and responses as well as the questions asked by the interviewer. Fortin also testified about the research and her experiences with the incremental disclosure pattern of children who have been sexually abused. Fortin opined B.M.'s incremental and delayed disclosure of all the details of the events with Figueroa on and before October 11, 2010 was normal considering her age and the circumstances.
R.R. attempted to testify at the trial several times, but shut down and refused to answer the prosecutor's questions, especially questions regarding Figueroa. As a result, the court found R.R. unavailable to testify and entertained argument on whether R.R.'s preliminary hearing testimony could properly be admitted into evidence. As discussed below, the court ultimately concluded R.R. was competent at the preliminary hearing and R.R.'s preliminary hearing testimony was admissible under Evidence Code section 1291. The court then struck R.R.'s minimal testimony at trial, admonished the jury, and R.R.'s preliminary hearing testimony was read to the jury.
DISCUSSION
I
COMPETENCY
Figueroa contends the trial court erred in finding R.R. competent at the preliminary hearing six months before trial because R.R. did not understand her duty to tell the truth. Figueroa additionally contends the trial court erred in finding R.R. competent at the Evidence Code section 402 hearing prior to trial because R.R. did not understand her duty to tell the truth. We reject both contentions.
A. Preliminary Hearing
As a general rule, " 'every person, irrespective of age, is qualified to be a witness [and may] testify to any matter.' " (People v. Montoya (2007) 149 Cal.App.4th 1139, 1149-1150, citing Evid. Code, § 700.) A person is incompetent and disqualified to be a witness if he or she is: (1) incapable of expressing himself or herself concerning the matter so as to be understood; or (2) incapable of understanding the duty of a witness to tell the truth. (Evid. Code, § 701, subds. (a)(1) & (2); Montoya, supra, at p. 1150.)
While Figueroa did not object to R.R.'s competency at the preliminary hearing, we will nonetheless reach the merits of the issue since it would be unfair to affirm a conviction because of a defendant's failure to make the proper objection at the preliminary hearing. (See People v. Burton (1961) 55 Cal.2d 328, 341.) However, we are limited to the record before us in reviewing an appeal. (People v. Green (1979) 95 Cal.App.3d 991, 1001.) " 'We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses.' " (In re Rubisela E. (2000) 85 Cal.App.4th 177, 194.)
Our review of the record before us limits our ability to evaluate whether R.R. was competent to testify at the preliminary hearing. R.R. was just five years old when she testified at the preliminary hearing and admitted to being scared to talk in court about what Figueroa had done to her. Although she did not know what the words "truth" or "lie" meant, she correctly stated that it was "wrong" to say that the prosecutor was wearing a pink shirt because his shirt was blue. Additionally, when the prosecutor asked R.R. to not use her imagination and say something that did not really happen, R.R. responded "okay." After further questioning by the prosecutor, R.R. testified that Figueroa touched her "private part" more than once in her mother's bedroom. R.R. also testified Figueroa touched her "back private part." On a drawing of a nude boy, R.R. circled the hands, mouth, and groin area to exemplify what parts of Figueroa's body touched her.
While defense counsel alluded to a potential competency issue during argument at the preliminary hearing, defense counsel did not explicitly request the court to make a competency finding. Thus, we do not have the benefit of the court's evaluation of R.R.'s competency at the preliminary hearing. Further, it is not our role to substitute our views of credibility on a cold record such as the record before us here. R.R.'s testimony indicated that she knew she was supposed to tell the truth. She also appeared capable to testify as to what she claimed occurred with Figueroa. Therefore, we find nothing in the record to indicate that R.R. was incompetent at the preliminary hearing.
B. Evidence Code Section 402 Hearing
Figueroa also contends the trial court abused its discretion when the court found R.R. competent at the Evidence Code section 402 hearing prior to trial because R.R. did not understand her duty to tell the truth. We disagree.
The party challenging a witness's competency at trial has the burden of establishing the witness's incompetency by a preponderance of the evidence, and the trial court's finding of competency will be upheld in the absence of a clear abuse of discretion. (People v. Avila (2006) 38 Cal.4th 491, 589.) A witness is not disqualified if some of the witness's statements are merely inconsistent. (People v. Mincey (1992) 2 Cal.4th 408, 444-445.) Inconsistent testimony and failure to remember particular facts present questions of credibility for the trier of fact to resolve. (Ibid.)Unlike a witness's personal knowledge, the trial court exclusively determines a witness's competency to testify. (Avila, supra, at p. 589 citing People v. Lewis (2001) 26 Cal.4th 334, 360.) We defer to the trial court, having no power to judge the effect, value or weight of the evidence, consider the credibility of witnesses or resolve conflicts in the evidence. (In re Rubisela, supra, 85 Cal.App.4th at p. 194.)
The record indicates the court carefully considered whether R.R. understood her duty to tell the truth. During the competency hearing, R.R. could not explain the meaning of the words "truth" and "lie." However, R.R. correctly testified that the prosecutor wore a white shirt and that it would be a lie to say the shirt was blue. R.R. testified that she knew that when she was asked a question in court, all she was supposed to tell was the truth. In an abundance of caution, the court then requested R.R.'s sister, Beatrice, to testify about how R.R. understood the difference between a truth and a lie. Beatrice testified that she and Maria R. had spoken to R.R. about the importance of telling the truth and that R.R. could get in trouble if she lied.
The prosecutor asked, "R.R., do you understand that when you come to court, that when we ask you questions, all we want you to do is tell the truth?" R.R. answered, "Yes."
The court took the matter under submission and ultimately found that R.R. demonstrated she understood the concept of "truth" and "lie" through her answers to the prosecutor's color questions. The court further noted that R.R. understood that there are consequences for not telling the truth based on Beatrice's testimony. Additionally, the court relied on the fact that R.R. promised to not use her imagination and only tell what happened when she took the oath.
On the record, which shows the court's extensive review of this issue, we determine the court did not abuse its discretion in finding the defense had not met its burden to prove by a preponderance of the evidence that R.R. was incompetent at the Evidence Code section 402 hearing.
II
R.R.'S UNAVAILABILITY AT TRIAL AND ADMISSION OF
R.R.'S PRELIMINARY HEARING TESTIMONY
Figueroa contends the trial court violated his right to "confront" a witness (U.S. Const., 6th Amend. & Cal. Const., art. I, § 15) and engage in effective cross-examination by allowing R.R.'s preliminary hearing testimony to be read into the record at trial because R.R. was incompetent at the preliminary hearing. We disagree.
Evidence Code section 1291, subdivision (a)(2) provides a hearsay exception for former testimony when the witness is unavailable and "[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing." When former testimony is offered at trial after an unavailability finding under Evidence Code section 1291, the former testimony remains subject to the same objections and limitations as if the witness was testifying at trial. (People v. Liddicoat (1981) 120 Cal.App.3d 512, 514-515.) The objecting party has the burden of establishing, by a preponderance of the evidence, that the witness lacked the ability to tell the truth at the preliminary hearing. (Id. at p. 515.)
The record here indicates the trial court, after finding R.R. unavailable under Evidence Code section 240, subdivision (a)(6), and striking her trial testimony from the record, heard extensive argument by counsel regarding whether R.R. was competent at the preliminary hearing such that her testimony could be admitted under Evidence Code section 1291. The court stated that while anyone reading the first few pages of the preliminary hearing transcript might wonder if R.R. understood the question, a review of the transcript in its entirety did not indicate that R.R. was incompetent at the preliminary hearing.
"Except as otherwise provided in subdivision (b), 'unavailable as a witness' means that the declarant is any of the following: (6) Persistent in refusing to testify concerning the subject matter of the declarant's statement despite having been found in contempt for refusal to testify." (Evid. Code, § 240, subd. (a)(6).)
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While the court had concerns about the contradictory answers R.R. gave, the court determined that R.R.'s inconsistent answers in her testimony were not a basis to conclude R.R. did not understand her duty to tell the truth but rather presented questions of her credibility to be solved by the trier of fact. As discussed above, Figueroa's contention that R.R. was incompetent at the preliminary hearing is without merit. Thus, when the trial court reviewed the preliminary hearing testimony during the trial itself, the court did not abuse its discretion in determining that the defense had not established, by a preponderance of the evidence, that R.R. was incapable of understanding her duty to tell the truth at the preliminary hearing based on the transcript in its entirety.
Additionally, the record indicates that defense counsel had the opportunity to confront R.R. at the preliminary hearing and engaged in a lengthy cross-examination of R.R. there. Additionally, the record shows that defense counsel had the similar motive and interest in cross-examining R.R. at the preliminary hearing as he had at trial. Several pages of R.R.'s preliminary hearing transcript were devoted to cross-examination that inquired about Figueroa touching R.R. and the specifics of the incidents R.R. claimed. Based on this evidence, the court did not abuse its discretion in finding that the defense had the opportunity to cross-examine with an interest and motive similar to trial, and subsequently, admitting R.R.'s preliminary hearing testimony under Evidence Code section 1291.
III
PREJUDICE
Assuming the trial court erred in finding R.R. a competent witness at the preliminary hearing, the Evidence Code section 402 hearing, and in subsequently admitting her preliminary hearing testimony at trial, Figueroa contends he was prejudiced by the admission of R.R.'s preliminary hearing testimony because R.R.'s testimony corroborated B.M.'s testimony. We disagree.
It does not matter whether we treat the issue as involving the "harmless beyond a reasonable doubt" standard applied to deprivation of federal constitutional rights (Chapman v. California (1967) 386 U.S. 18, 24), or under the less stringent "reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error" standard. (People v. Watson (1956) 46 Cal.2d 818, 836.) Figueroa's claim of prejudice fails under either standard.
Figueroa failed to develop a record of, or a finding supporting, prejudice resulting from the admission of R.R.'s preliminary hearing testimony. First, the jury did not convict Figueroa on any of the four counts involving R.R. Thus, the admission of R.R.'s preliminary hearing testimony did not prejudice him in any way with regard to the counts pertaining to R.R. herself. This is indicative of how much weight the jury gave to R.R.'s testimony.
Figueroa contends admitting R.R.'s preliminary hearing testimony prejudiced him in the crimes he was convicted of against B.M. To support his contention, Figueroa asserts R.R. corroborated B.M.'s testimony since the jury did not reach a verdict on three counts involving R.R. and that the jury requested a read back of R.R.'s testimony. We are mindful that R.R.'s testimony regarding Figueroa's touching may have given more credence to B.M.'s testimony. However, even if R.R.'s testimony had some corroborative effect, Figueroa's argument ignores the extent of physical evidence linking him to his crimes against B.M.
Namely, the DNA evidence provided overwhelming corroboration to B.M.'s testimony that Figueroa had engaged in substantial sexual contact beyond touching. The DNA results showed the presence of Figueroa's sperm and semen on B.M.'s external genital area and inside her rectal cavity. Additionally, the DNA results from B.M.'s oral swab tested positive for Figueroa's semen. Therefore, there was a multitude of evidence from which a rational jury could find Figueroa guilty of counts 1, 4, 5, 7, 9, and 12.
In light of the physical evidence, we are satisfied that, even if the court erred in admitting R.R.'s preliminary hearing testimony, the error was harmless beyond a reasonable doubt. Accordingly, since Figueroa was not prejudiced under the more stringent Chapman standard, he was also not prejudiced under the less stringent Watson standard.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J. WE CONCUR:
McCONNELL, P. J.
BENKE, J.