Opinion
C079894
06-05-2018
THE PEOPLE, Plaintiff and Respondent, v. ROSEL SEVERO FRANCO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 11F02679)
Defendant Rosel Severo Franco was found guilty by jury of multiple counts of sexual contact with his stepchild and two adults--one a relative by marriage and the other a neighbor.
To summarize, counts one through three charged defendant with sexual conduct occurring between August 2005 and November 2008 with his stepdaughter Y.C. Counts four through eleven charged defendant with sexual conduct occurring between December 2008 and October 2010 with Y.C., and count twelve charged him with child abuse of Y.C.
Count thirteen charged defendant with the rape of Y.C.'s young adult cousin, between November 2009 and March 2010. Counts fourteen through seventeen charged him with burglary, rape, and other sex crimes with his neighbor M.R. as the victim, occurring on October 20, 2010.
The jury found defendant guilty as charged and the trial court sentenced him to 140 years to life plus 12 years in prison.
The trial court granted the prosecutor's unopposed motion to dismiss count nine for lack of evidence before the jury was instructed and out of its presence.
On appeal, defendant contends: 1) insufficient evidence on counts one and four (alleging "sexual intercourse or sodomy" with Y.C. during two different time periods); 2) insufficient evidence on "other counts relating to Y.C."; 3) insufficient evidence on count fifteen (anal penetration of M.R.); 4) error in failing to instruct on unanimity; and 5) error in exclusion of the results of a urine test showing cocaine metabolite in M.R.'s system.
As we explain, we find no error and affirm.
FACTS
We provide only those facts that are relevant to the claims on appeal before us. Because there is no claim of error as to the conviction on count thirteen involving victim B.R., we do not include testimony regarding that incident. Because defendant admits that count twelve, child abuse, is supported by substantial evidence, we do not discuss that count in any detail. Because there is no claim of lack of proof as to the relevant ages of defendant and Y.C., we do not elaborate. We address any relevant facts and procedural happenings in greater detail as needed in the Discussion section of this opinion, post.
Evidence at Trial Regarding the Crimes Against Y.C.
Counts one through three were alleged to have occurred between August 12, 2005, and November 30, 2008, and charged defendant with sexual intercourse or sodomy with a child under 10 (Pen. Code, § 288.7, subd. (a)), lewd and lascivious acts with a child under 14 (§ 288, subd. (b)(1)), and sodomy on a child under 14 (§ 269, subd. (a)(3)). During this time period defendant and Y.C. were living in a specific house, which we decline to identify due to privacy concerns.
Undesignated statutory references are to the Penal Code.
Victim Y.C. was born in August 1998. Defendant was Y.C.'s stepfather. Y.C. testified that when she was in second or third grade she and her mother, steprelatives, and multiple siblings lived in a house together. At the time, Y.C.'s mother worked at McDonald's while defendant took care of Y.C. and her younger siblings.
One time while her mother was at work, defendant told Y.C. to go to the bedroom to take care of a younger sibling and watch a movie. The television was off when she entered the room. Defendant, who was lying on the bed, pulled Y.C. towards him. He grabbed her, and she told him to leave her alone. He took off Y.C.'s pants and underwear and removed his own pants. Y.C. was upset and crying. While she was lying face down on the bed, defendant put his penis in her vagina. Her younger siblings were in the bedroom at the time. Defendant told Y.C. that he would hit her if she told her mother what he did to her. Defendant previously had hit her with shoes, hangers, a cable, and a belt. She had also seen defendant strike her mother more than five times. Y.C. did not tell her mother what happened because she was afraid.
During a January 24, 2011, interview at the SAFE Center, Y.C. said defendant put his penis in her "private spot where the poop comes out" when they lived at the house.
At trial, however, she testified that there was only one incident of anal penetration, and that it happened at the apartment. She denied it happened at the house. --------
Counts four through twelve were alleged to have occurred between December 1, 2008, and October 20, 2010, and charged defendant with sexual intercourse or sodomy with a child under 10 (§ 288.7, subd. (a)--count four), lewd and lascivious acts with a child under 14 (§ 288, subd. (b)(1)--counts five, seven, ten, and eleven), rape of a child under 14 (§ 269, subd. (a)(1)--counts six and eight), and felony child abuse (§ 273a, subd. (a)--count twelve). During this time period defendant and Y.C. lived at the specific apartment, which we decline to identify due to privacy concerns.
Y.C. testified that once while living in the apartment, defendant grabbed her by the hair in the kitchen and dragged her to his bedroom and bed. There, he "did the exact same thing that he did in [the house]," put his penis in her vagina. She was "yelling" for help and a neighbor knocked on the door and interrupted the attack.
Defendant then came to her bedroom and pulled her back to his room, where he did the same thing again. He told Y.C. he would kill her and her mother if she told anyone; she did not tell anyone because she was afraid.
In another incident at apartment, Y.C. was at home having missed school. Defendant came home and appeared to have been drinking. Y.C. told defendant he should stop drinking or he could get sick, which caused defendant to become angry. He pulled Y.C. by the hair and dragged her into the bedroom. He struck her in the legs with his hands, bruising her. Y.C. screamed for help from a sibling, but defendant pushed her on the bed and took off her pants and underwear. He took off his pants and got on top of her, but she could not remember if he touched her private parts. He threatened to kill her and her mother and throw them in the river if she told anyone.
In yet another incident at the apartment, defendant came home one day with a cut on his face. Her mother was at work and defendant was aggressive and appeared to have been drinking. Y.C. helped defendant, wiping the blood off his face and bandaging his cut. She later cooked some food and brought it to him.
After Y.C. gave him the food, defendant pulled her onto the bed and took off his pants. When Y.C. cried and told him not to do it, defendant told her to shut up. He got on top of her and put his finger and penis in her vagina. He told her not to tell anyone or he would beat her up.
In April 2010, while living at the apartment, Y.C, broke her wrist as a result of another sexual assault by defendant. She went to the hospital and was put in a cast that she wore for six months. At some point around this time, defendant suddenly left for Mexico without his family; after he left, Y.C. told her mother how her arm was broken. She also told her cousin, her aunt, and others. Her cousin's mother called the police, but Y.C.'s mother denied her daughter's allegations.
On December 4, 2010, Y.C. told the police that defendant had sexually assaulted her. She recanted her allegations in a subsequent interview. Y.C. then told the detective that her mother was threatening to send her to Mexico. After Y.C. was taken into protective custody, she said her original statement to the officers was true and that she had recanted due to fear of being sent to Mexico. She underwent a sexual assault examination on March 4, 2011; the results were normal. An expert testified that a normal exam did not mean that Y.C. was not sexually abused. During the examination, Y.C. denied that defendant had ever put his penis in her "booty."
Evidence at Trial Regarding the Crimes Against M.R.
Counts fourteen through seventeen were alleged to have occurred on October 20, 2010 and charged defendant with sodomy (§ 289, subd. (a)(1)--counts fourteen and fifteen), assault with intent to commit rape (§ 220--count sixteen), and residential burglary (§ 459--count seventeen).
Victim M.R. was 64 years old and lived in the same apartment complex as defendant. On October 20, 2010, she was getting ready to go to bed at around 9:00 p.m. when defendant knocked on her door. He told M.R. he was lonely; he smelled of alcohol. She told him to leave.
Defendant pushed M.R. inside and when she screamed he grabbed her neck and yelled he was going to choke and kill her. He pushed her into her bedroom and took her cell phone. He removed her outer clothing and put his hand on her private parts. He took off his clothes and wanted M.R. to hold his penis and fellate him. M.R. screamed and defendant covered her mouth and said he would kill her if she kept screaming.
Defendant pushed M.R. onto her bed and tried to put his penis in her vagina. He put his fingers in her vagina multiple times, leaving her "very scratched." He also sucked her breast and put his mouth on her vagina. The sexual assault ended when M.R. struck defendant in the head with a water bottle. M.R. recognized defendant, who lived behind her apartment and had been inside her apartment twice.
M.R. spoke with the police that same evening. She was very upset; she said she did not know defendant's name, but had seen him around the apartment complex. M.R. said he seemed very drunk and smelled of alcohol and marijuana. She identified defendant in a photographic lineup that day. At her sexual assault examination that same day, M.R. said defendant tried to put his penis in her vagina but was unsuccessful. He put his finger in her vagina and anus, and tried to put his penis in her anus but did not succeed. In an interview with a detective two weeks later, M.R. reiterated that defendant had put his fingers in her anus. M.R. testified at trial that defendant did not put his fingers in her anus.
M.R. had bruises on her right arm, chest, abdomen, upper thighs, right buttock, and pubic area. She sustained numerous injuries to her vaginal area. There was a laceration on the lower part of her anus. According to the examining doctor, M.R.'s injuries were consistent with the vaginal and anal assault she had previously described.
Defendant was identified as a contributor to a DNA sample taken from M.R.'s breast. He was also identified as a contributor to a sample taken from the toilet seat at her apartment.
M.R.'s adult niece, Cyndi Lopez-Perez, testified that M.R. had some mental disabilities and rheumatoid arthritis. Lopez-Perez cared for M.R. through the in-home support services program. M.R. did not always know when something was important. She once spilled steaming water on her hand but did not call Lopez-Perez or 911 for help.
M.R. did not call Lopez-Perez about defendant's attack. Lopez-Perez found out when she went to M.R.'s apartment; M.R. was not there but the police were. M.R. was in the apartment's office with the police, looking anxious and nervous. She was tearful and upset during some of the questioning.
DISCUSSION
I
Substantial Evidence
Defendant first alleges insufficient evidence in three separate areas: On counts one and four (alleging sexual intercourse or sodomy with Y.C.); on "other counts relating to Y.C."); and 3) on count fifteen (anal penetration of M.R.) As to Y.C., his argument boils down to an assertion that too few sexual acts were proven to match the counts of conviction.
In determining the sufficiency of the evidence, we examine whether " 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (People v. Hatch (2000) 22 Cal.4th 260, 272, italics omitted.) We resolve neither credibility issues nor evidentiary conflicts. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.) " ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' [Citation.]" (People v. Casares (2016) 62 Cal.4th 808, 823-824.) Thus, reversal is not warranted unless there is no hypothesis on which there exists substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
A. Counts One and Four
Counts one and four alleged sexual intercourse or sodomy with Y.C. (§ 288.7, subd. (a)); count one between 2005 and November 30, 2008, and count four between December 1, 2008, and October 20, 2010 (the date of defendant's assault on M.R. and subsequent departure to Mexico).
Defendant contends there is insufficient evidence to convict him of counts one and four. He claims the evidence shows at most one penetration of Y.C.'s anus--which is accounted for by the sodomy charge in count three--thus no evidence remains to support counts one and four. He completely ignores the fact that the charge at issue is proven by either evidence of sexual intercourse or sodomy. Section 288.7 states in pertinent part: "Any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life." (§ 288.7, subd. (a), italics added.)
Although at trial Y.C. denied any anal penetration at the house, during her SAFE interview she said that defendant put his penis in her anus at least once. Assuming, as does defendant, that the SAFE interview proves the conviction on count three for sodomy, sufficient evidence remains to support defendant's conviction on both counts one and four because proof of vaginal intercourse suffices. As we have described, Y.C.'s testimony at trial established that incidents of vaginal intercourse occurred earlier at the specific house and later at the specific apartment, precisely as charged.
B. "Other Counts Involving Y.C."
Defendant confusingly and briefly argues that there is insufficient evidence to support some of the remaining sex counts regarding Y.C.
He was convicted of 10 sex offense counts in which Y.C. was the victim. Three of these counts, counts one, three, and four, we have discussed ante and have found sufficiently supported by the evidence. The remaining seven counts--five charging lewd acts and two charging rape--appear to be at play in defendant's rambling and imprecise argument of insufficiency. He concludes that the evidence produced at trial supported only the two rape charges (counts six and eight) and several lewd act charges that he declines to specify, complaining that "it is difficult to ascertain which five acts were proved" and dovetailing his argument with his argument regarding unanimity, which we address post.
"In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. 'In California, a single act or course of conduct by a defendant can lead to convictions "of any number of the offenses charged." (§ 954, italics added; [citations].)' [Citation.]" (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.) Defendant's argument, to the extent that we understand it, seems based on the incorrect premise that a single sexual act can support charges for only one offense.
As we describe in our discussion of unanimity (Part IIA, post) every sexual offense against Y.C. involves either evidence of a discrete act or evidence of an act supporting more than one offense, all supported by substantial evidence. We therefore conclude that substantial evidence supports all of defendant's convictions regarding Y.C.
C. Count Fifteen
Count Fifteen alleged sodomy with M.R. (§ 289, subd. (a)(1)) on October 20, 2010. Defendant challenges the conviction on that count, relying on M.R.'s testimony that defendant put his fingers in her vagina multiple times but did not do anything to her buttocks and touched her only between her legs. As we have discussed ante, although M.R. herself testified that she was not anally penetrated by defendant, a detective testified without objection that in a prior interview, M.R. reported defendant put his fingers in her anus during the assault. Her medical examination also was consistent with anal penetration. The prosecutor recognized M.R.'s inconsistent testimony denying anal penetration, but argued that M.R.'s statement to the detective was credible and supported the allegation of sodomy charged in count fifteen. Defendant's briefing does not even acknowledge M.R.'s previous statement or the medical exam. There was sufficient evidence of sodomy.
II
Unanimity Instruction
Defendant next argues cursorily that the trial court had a sua sponte duty to give CALCRIM Nos. 3500 and 3501, concerning unanimity, and reiterates his argument regarding sufficiency of the evidence of the counts involving Y.C. He omits from his briefing the fact that the trial court did indeed instruct the jury on unanimity, using a painstakingly modified version of CALCRIM No. 3502: Unanimity: When Prosecution Elects One Act Among Many. We note this careless and disingenuous briefing with disapproval, but briefly address the merits nonetheless in order to address defendant's insufficiency claim in more detail.
A. Background
With all counsel in agreement, the trial court carefully instructed the jury with a modified version of CALCRIM No. 3502, as we have described. The court and parties did not merely "discuss the giving" of the instruction as appellate counsel incorrectly asserts. The lengthy modification specified the various allegations and residences to which the incidents between defendant and Y.C. were linked and warned the jurors that they must "all agree" as to the specifics of the various offenses and their time and location of commission. The detailed instruction, quite commendably, even specified various points from testimony to link the specific counts.
The prosecutor then made the specified elections during argument with the aid of a detailed Power point presentation emphasizing the election and need for unanimity, another important point completely ignored by appellate counsel in his briefing.
Regarding the incidents at the house (charged in counts one through three as intercourse or sodomy, lewd act, and sodomy, respectively), Y.C. testified that defendant removed her underwear and put his penis in her vagina. In her SAFE interview, she stated that defendant put his penis in her anus. In closing, the prosecutor argued that this conduct satisfied these counts one through three and reminded the jury: "[Y]ou have to have unanimity. You have to all agree as to which act or acts occurred. Meaning -- and this is defined for you further at jury instruction 3502 -- you get to decide what you believe and what the facts are. But in order to convict . . . you have to all agree that it was either an act of sodomy or an act of sexual intercourse, or it could be both. But you can't split and say, well, six of us agree it was sodomy and six agree it was sexual penetration. You have to have unanimity as to that."
Regarding the incidents at the apartment, Y.C. testified that on one occasion defendant dragged her by the hair into his room, took off her underwear, put his penis in her vagina, and threatened to kill her if she told anyone. The prosecutor argued that this incident satisfied the charges in counts four (intercourse or sodomy), five (lewd acts) and six (rape).
Y.C. testified that in another incident that same day, after being interrupted by a neighbor's knock, defendant dragged her into the bedroom and put his penis in her vagina. The prosecutor argued that this sexual assault satisfied the charges in counts seven (lewd act) and eight (rape).
Y.C. testified that another time defendant pushed her onto the bed, took off her underwear and his pants, got on top of her and touched her vagina. The prosecutor argued this conduct constituted the lewd act charged in count ten.
Finally, Y.C. testified to another incident where defendant put his finger and his penis in her vagina after she gave him food. The prosecutor argued that this satisfied the lewd act charge in count eleven.
B. Analysis
The unanimity instruction given by the trial court as well as the prosecution's election within closing argument--which matched the unanimity instruction--more than satisfy the unanimity requirement. (See People v. Mayer (2003) 108 Cal.App.4th 403, 418-419 [prosecutor may use an opening statement or closing argument to elect a specific instance of the charged offense]; People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455 [same].) Defendant's argument to the contrary borders on frivolous.
III
Exclusion of Cocaine Metabolite
Defendant's final contention is the trial court prejudicially erred in excluding evidence that M.R.'s urine tested positive for cocaine metabolite.
A. Background
The prosecutor moved in limine to exclude the results of a toxicology test showing M.R. testing positive for benzoylecgonine, a cocaine metabolite. The prosecutor argued that the test result was irrelevant since it could not establish whether M.R. was under the influence of cocaine during the sexual assault or when describing the incident. At an Evidence Code section 402 hearing, criminalist Kristen Burke testified that a person would need to ingest at least 20 nanograms per milliliter for the metabolite to appear in urine, as did M.R.'s. Burke did not undertake a quantitative analysis on M.R.'s urine sample.
Cocaine rapidly breaks down in a person's system. Cocaine metabolite can show up in the urine for up to two to four days after use, or possibly up to 10 days if the person "binge" used. Cocaine can be absorbed orally or possibly from another person's skin. Presence of cocaine metabolite does not mean the person was under the influence of cocaine. Burke did not test M.R.'s blood. Had it been tested it likely would have shown no detectable cocaine or metabolite due to the passage of time. Burke could not opine on whether M.R. was ever under the influence of cocaine.
The defense claimed the evidence was relevant as to the drug's effect on M.R. and to her credibility if she denied using it. The trial court granted the prosecution's motion to exclude the evidence. As relevant here, the court found the urine test result was not highly probative; there was no evidence that M.R. was intoxicated, and there were no signs of drug use in her apartment. The evidence would invite the jury to speculate, making the likelihood of misuse great. While M.R. had denied using cocaine, the effect on M.R.'s credibility was a collateral issue that would take a great deal of time to litigate.
B. Analysis
Evidence Code section 352 permits the exclusion of relevant evidence where "its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) We review a trial court order denying a motion to exclude evidence under Evidence Code section 352 for abuse of discretion. (People v. Lindberg (2008) 45 Cal.4th 1, 49.)
In support of his argument, defendant relies on People v. Wright (1985) 39 Cal.3d 576. There, our Supreme Court held the trial court erred in excluding evidence that a murder victim had morphine in his system at the time of his death, indicating that heroin had been introduced into his system within the previous 24 hours. (Id. at pp. 580-581.) The defendant testified he shot the victim after he saw the victim reach toward his back pocket for what the defendant believed was a weapon. (Id. at p. 582.) The defendant further stated he believed the victim was acting irrationally and might have been under the influence of a drug. (Ibid.) The excluded evidence was offered to show the victim had been under the influence of a narcotic and was therefore more likely to have acted irrationally and aggressively, consistent with the defendant's testimony. (Id. at p. 583.) The Supreme Court concluded the excluded evidence had significant probative value because it corroborated the defendant's testimony and impeached the testimony of the victim's wife, i.e., that the victim had not used heroin for two years. Further, the evidence countered the prosecution's expert testimony that the victim did not have heroin in his blood at the time of the shooting. (Id. at pp. 583-584.) On the other hand, the evidence had only minimal prejudicial effect in light of other evidence already before the jury, which showed the victim had used heroin. (Id. at p. 584.) The Supreme Court nonetheless found the error harmless, since the defendant's offer of proof did not include any proposed testimony on the effects of heroin or the level of morphine in the victim's blood, and there was significant evidence that the defendant did not act in self-defense. (Id. at pp. 585-586.)
Wright is distinguishable from the instant case. Here, the cocaine metabolite evidence did not support a defense raised by defendant, and was minimally relevant at best. The criminalist who testified at the pretrial hearing could not conclude that M.R. was in fact under the influence of cocaine when her urine sample was taken. There was no evidence that the presence of cocaine metabolite in M.R.'s urine was associated with a diminished ability to recall events. The evidence also had real potential to confuse the jury with a mini-trial on M.R.'s possible cocaine use. The expert testified that the metabolite could be associated with contact with another person who used cocaine. Because there was no other evidence that M.R. used cocaine, the trial court could reasonably conclude that admitting the evidence could confuse the jury and needlessly delay proceedings.
Given the evidence's minimal relevance and the probably resulting delay and confusion, the trial court did not abuse its discretion in excluding the evidence.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Robie, Acting P. J. /s/_________
Hull, J.