Opinion
B226655
12-29-2011
THE PEOPLE, Plaintiff and Respondent, v. ISRAEL FUENTES, Defendant and Appellant.
Mark David Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, Tannaz Kouhpainezhad, Deputy Attorney General, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. SA071458)
APPEAL from a judgment of the Superior Court of Los Angeles County, Cynthia Rayvis, Judge. Affirmed.
Mark David Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, Tannaz Kouhpainezhad, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant Israel Fuentes (defendant) was convicted of one count of continuous sexual abuse of a child (Pen. Code, § 228.5, subd. (a)) and three counts of misdemeanor battery (Pen. Code, § 242). On appeal, defendant contends that trial court abused its discretion in denying admission of evidence that he had not made sexual advances towards his niece, and the trial court violated his rights under the First Amendment to the United States Constitution by using his religious beliefs as a basis for sentencing him. We affirm the judgment.
All statutory citations are to the Penal Code unless otherwise noted.
BACKGROUND
A. Factual Background
1. Prosecution's Case
Defendant and Maria De La Cruz Fuentes (Fuentes) had a son, Abraham, and a daughter, K.F. Fuentes testified that when K.F. was about four or five years old, the family lived in the two-bedroom home of Fuentes's brother. Defendant, Fuentes, and the two children shared one bedroom, and slept in the same bed.
K.F. was 15 years old at the time of trial.
Fuentes testified that "[l]ater" defendant began to sleep alone on the sofa bed in the living room. Defendant then wanted to sleep with the children, and Fuentes let Abraham sleep with defendant. When K.F. was about six years old, defendant said he didn't want to sleep with Abraham because he moved around a lot, and defendant said he wanted to sleep with K.F. Although Fuentes told defendant he could not sleep with K.F., defendant got angry and took K.F.
K.F. testified that when she was six years old defendant inserted his penis inside her vagina while they were on the sofa bed. During that year, defendant sexually molested K.F. the same way three to four times a week, and during many of the molestations defendant would ejaculate inside and outside of K.F's vagina. On two occasions defendant licked K.C.'s vagina before inserting his penis.
K.F. testified that on a "couple" of occasions, also when K.F. was about six years old, defendant would take her into the shower, where defendant would pick her up, and while facing her, insert his penis into her vagina. On about five occasions, defendant would also place K.F. on his lap, specifically on his penis, place his hands around K.F's waste, and rock her back and forth. K.F. could feel defendants' hard penis.
Fuentes testified that when K.F. was six or seven years old, Fuentes would bathe K.F. and K.F. would complain that the water burned her private parts, and they hurt. K.F. would not tell Fuentes why her private parts burned. K.F. kept away from Fuentes, was sad, and cried a lot.
Fuentes testified that when K.F. was seven years old, K.F. told her that defendant had been sexually molesting K.F. Fuentes called Mary Fuentes Delgado, defendant's sister, and asked her to come to the house. When Delgado arrived at the house, they sent for defendant to join them. At Fuentes request, K.F. repeated to Delgado what K.F. had told Fuentes about defendant. Defendant denied it. K.F. testified that Fuentes told her that Delgado did not believe K.F., and K.F. concluded that if her own family did not believe her, there is "no point in telling anyone else" about the molestation. Fuentes did not notify the police that K.F. had told her that defendant was sexually molesting K.F. because Fuentes was scared. Fuentes was concerned that defendant would eventually be released from jail and in the meantime she could not support her young children alone because she was dependant on defendant.
Fuentes testified that Delgado "made a rule" that K.F. was not to sleep with defendant anymore, and defendant never tried to have K.F. sleep with him on the sofa bed again. K.F. testified that defendant did not sexually abuse K.F. again until she was in middle school.
K.F. testified that when she was about 11 or 12 years old, defendant would have K.F. give him a kiss when she would get home from school, and defendant would "grab" her and put her on his lap. K.F. could feel defendant's penis go from soft to hard. Defendant would place his hands around K.F.'s waist and rock her back and forth on his lap. K.F. would try to escape, but defendant would hit or bite her on the arms. Defendant did this once a week until K.F. was 13 years old. When the family moved into a different home, the incidents stopped.
K.F. testified that when she began high school, she eventually told her boyfriend about defendant's sexual abuse, and she followed the boyfriend's advice to tell the school counselor. K.F. was thereafter interviewed by a social worker, and K.F. told her what had happened with defendant. K.F. and her brother were placed in a foster home, and defendant was arrested.
Hawthorne Police Department Detective Antonio Robles testified that he interviewed defendant. During the interview, defendant repeatedly denied having sexual intercourse with K.F., but told detective Robles that is penis may have rubbed against K.F., but he did not intend to do it.
During the interview defendant told detective Robles, "I admit to whatever [K.F.], she says I did." When detective Robles asked if this was the truth, defendant said no, that he is saying this because he wants K.F. to be happy and to "get over this whole thing . . . ." Later during the interview, defendant stated that on two or three occasions while he was lying in bed with K.F. facing him, he rubbed his penis "in areas," and it may have been next to her vagina and around her leg. Defendant stated that he pulled his penis out of the hole in his boxer shorts, pulled down K.F.'s pajama bottoms "a little bit," and rubbed his penis down K.F.'s belly, close to her vagina, for less than 20 seconds.
2. Defendant's Case
W.G. testified that she was defendant's niece, had known defendant for 15 years, since she was 15 years old she lived close to defendant, and she lived in the same city as defendant since 2004. W.G. had worked with defendant at a swap meet. W.G. had seen defendant and his family when she would visit them on weekends, at family birthday and Christmas celebrations, and during semiannual camping trips that occasionally lasted three days. W.G. sometimes stayed overnight with the defendant's family.
The record does not indicate W.G.'s age. In an abundance of caution in protecting the identity of minors, we refer to her by her initials.
Delgado testified that when she went to defendant's home after Fuentes called her and asked her to come, Delgado was expecting to see Fuentes devastated, but Fuentes was not, and she was surprised to see K.F. playing. K.F. told Delgado of defendant's sexual abuse of her, and defendant denied it. Because when Delgado arrived at the home Fuentes and K.F. were acting like nothing happened, Delgado did not know whom to believe. Thereafter, Delgado would make sure to visit the family about every two weeks, and Delgado never noticed anything unusual between defendant, K.F., and Fuentes. Delgado only observed love between them, and K.F. did not appear to be nervous or frightened around defendant.
Defendant testified that he was surprised that K.F. accused him of molestation. Defendant told Delgado that he could not have molested K.F. because he was not a "beast or abnormal person." Defendant testified that eight people lived in the home, and he and K.F. were never alone. Defendant testified that he told Detective Robles during the interview that he rubbed his penis on K.F.'s belly and legs because Detective Robles suggested that he say it. He never intentionally sexually abused K.F., and he never had sexual relations with her.
B. Procedural Background
The District Attorney of Los Angeles County filed an information charging defendant in count one with continuous sexual abuse of a child in violation of section 228.5, subdivision (a), alleged to have occurred between the dates of November 14, 2000, and November 14, 2003, and in counts two through four with lewd acts upon a child in violation of section 288, subdivision (a), alleged to have occurred between the dates of November 14, 2005, and November 13, 2007. The matter was tried before a jury. The jury found defendant guilty of continuous sexual abuse of a child as to count one, and not guilty of lewd acts upon a child, but guilty of the lesser offense of misdemeanor battery in violation of section 242, as to counts two through four. The trial court sentenced defendant to a high term of 16 years as to count one, and six months as each of the three remaining counts to run concurrently with count one.
DISCUSSION
A. Evidence of Absence of Sexual Advances against Defendant's Niece.
Defendant contends that the trial court erred in denying admission of evidence that defendant had not made sexual advances towards his niece. We disagree.
1. Background Facts
Defendant's counsel asked W.G. whether defendant did "anything unusual to her. The trial court sustained the prosecutor's objection on the ground of relevance. The trial court allowed the parties to be heard, and defendant's counsel stated, "Your Honor, I think in cases of sexual abuse, if the prosecutor puts on evidence of the defendant abusing another child, then the defense could put on evidence of the other children who were in the location that were not abused. . . . I don't think it's specific to [whether W.G. lived close by to defendant]. I think it's specific to the interaction." The prosecutor responded, "My position is [W.G.] said she saw [defendant] on Christmases and birthdays. They didn't even live in the same city until recently. [W.G.] wasn't residing within the home and, therefore, there's no difference than you pulling any child off the street saying, hey, did [defendant] molest you? Did [defendant] molest you? Then he must not be a molester." Defendant's counsel stated, "I think the testimony is they've been on camping trips and been on overnights together. I think it's more than just birthdays." The trial court sustained the prosecutor's objection.
2. Analysis
Defendant's proffered evidence is that he did not commit any sexual acts toward his niece, W.G. We conclude that the trial court did not abuse its discretion in excluding the proffered evidence on the grounds of relevance.
"We review . . . evidentiary claims for abuse of discretion. [Citations.] 'A trial court abuses its discretion when its ruling "fall[s] 'outside the bounds of reason.'" [Citation.]' [Citation.]" (People v. Sisneros (2009) 174 Cal.App.4th 142, 151.) "'"Relevant evidence" means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' (Evid. Code, § 210.) 'No evidence is admissible except relevant evidence.' (Id., § 350.) '[T]he trial court "has broad discretion in determining the relevance of evidence [citations], but lacks discretion to admit irrelevant evidence" [citation].' (People v. Weaver [(2001) 26 Cal.4th 876], 933.)" (People v. Sisneros, supra, 174 Cal.App.4th at p. 151.)
Defendant contends that the proffered evidence was relevant, and argues "[it] is a relevance question . . . analyzed like an [Evidence Code section] 1101(b) question." Evidence Code section 1101, subdivision (b), provides, "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
In support of defendant's contention that the proffered evidence was admissible, he relies on a district court case, United States v. Marlinga (E.D. Mich. 2006) 457 F.Supp.2d 769, which in turn relied on rule 404, subdivision (b) of the Federal Rules of Evidence (28 U.S.C.). "Federal Rules of Evidence, rule 404 (28 U.S.C.), is similar to California Evidence Code section 1101 in that it generally forbids the use of character evidence, except to show motive, plan, knowledge, and so forth. [Citations.]" (People v. Davis (2008) 168 Cal.App.4th 617, 637; accord, Holdgrafer v. Unocal Corp. (2008) 160 Cal.App.4th 907, 932, fn. 14.)
We, of course, "are not bound by the decisions of lower federal courts." (People v. Mejia (2007) 155 Cal.App.4th 86, 99, citing People v. Avena (1996) 13 Cal.4th 394, 431.)
As discussed in United States v. Marlinga, supra, 457 F.Supp.2d 769, Federal Rules of Evidence, rule 404 (28 U.S.C.), stated, "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial." (Id. at pp. 773-775.)
In United States v. Marlinga, supra, 457 F.Supp.2d 769, the defendant, who had previously acted as an elected county prosecutor, was charged with bribery and wire fraud. The defendant sought to introduce two categories of evidence of prior instances that (1) he performed "acts similar to those alleged" against him and received no bribes; and (2) on two occasions he was offered and refused bribes. The court denied the Government's motion in limine to exclude the first category of proposed evidence, but granted the motion as to the second category. (Id. at pp. 770, 776-777.)
The court in United States v. Marlinga, supra, 457 F.Supp.2d 769, stated that in analyzing the proposed evidence under Federal Rules of Evidence, rule 404, subdivision (b), it must determine whether the evidence is relevant. (Id. at 775.) As described by the court, "A fact of consequence in this case is Defendant's criminal intent. For the two bribery charges against Defendant, the Government must prove that Defendant intended to be influenced or rewarded for favorable assistance in People v. Moldowan and People v. Hulet. For the wire fraud charge, the Government must prove that Defendant acted with the intent to defraud." (Ibid.)
Likewise, Evidence Code section 1101, subdivision (b), requires that the evidence be "relevant" to prove some fact, such as intent.
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The court in United States v. Marlinga, supra, 457 F.Supp.2d 769, stated that the first category of proposed evidence "suggests that . . . it was Defendant's normal practice as Prosecutor to extend the same type of courtesies to the defense in cases he deemed worthy. . . . [¶] The summary of [the first category of proposed evidence] . . . evidences Defendant's innocent state of mind and lack of criminal intent. The evidence is indisputably probative of one of the primary issues here: why [the defendant] handled the Moldowan and Hulet cases in the manner alleged." (Id. at p. 775.)
United States v. Marlinga, supra, 457 F.Supp.2d 769 is distinguishable. There, the proffered evidence was that defendant did not receive bribes for the performance of acts "similar to those alleged" against him. Here, it does not appear that W.G. and K.F. were similarly situated, and defendant failed to establish that they were. Unlike K.F, W.G. did not live with defendant, and she only occasionally saw him. Furthermore, there is no evidence in the record of the nature and extent of her contact with defendant when she did see him. And, although W.G. sometimes stayed overnight with defendant's family, there is no evidence in the record of the number of times she stayed overnight. There also is no evidence of the circumstances or sleeping arrangements during W.G.'s overnight stays or the semiannual family camping trips. Moreover, that he was sexually attracted to one person does not indicate that he would be sexually attracted to someone else. We cannot say that the trial court's ruling sustaining the prosecutor's relevance objection "fall[s] 'outside the bounds of reason.'" (People v. Sisneros, supra, 174 Cal.App.4th at p. 151.)
Also, in United States v. Marlinga, supra, 457 F.Supp.2d 769, the court granted the Government's motion to exclude the second category of proposed evidence—that on two occasions defendant was offered and refused bribes. (Id. at pp. 776-777.) The court held that the evidence was not admissible under rule 404, subdivision (b) of the Federal Rules of Evidence because "Defendant has not shown that the evidence is 'probative of a material issue other than character.' [Citation.] The evidence offered in the first category allows jurors to consider an alternative reason for Defendant's actions in connection with Moldowan and Hulet. The evidence in the second category, however, only suggests that Defendant is not inclined to accept bribes. This is the very type of propensity evidence explicitly prohibited under 404(b) . . . . [¶] '[P]rior bad acts are generally not considered proof of any person's likelihood to commit bad acts in the future and . . . such evidence should demonstrate something more than propensity.' [Citation.] The same is true with these two prior good acts Defendant seeks to admit. The fact that Defendant allegedly refused bribes on some occasions does not make it more likely that he refused the bribes offered in this case." (Id. at p. 776.)
Similarly, here defendant's proposed evidence that he did not commit any sexual acts toward his niece was not relevant other than to attempt to prove that he did not have the criminal disposition to sexually molest K.F. The fact that defendant allegedly did not commit any sexual acts toward his niece does not make it more likely that he did not sexually molest K.F. (United States v. Marlinga, supra, 457 F.Supp.2d at p. 776.)
B. Sentencing
Defendant contends that the trial court erred because it improperly used defendant's religious beliefs as a basis for sentencing him. Defendant argues that the trial court's off-hand reference to defendant having quoted from the Bible was somehow improper. The Attorney General argues that defendant forfeited his claims by failing to object in the trial court, and in any event the claims are meritless. Defendant contends that if his claims were forfeited, he received ineffective assistance of counsel. We hold that defendant forfeited his claims, and he did not establish that he received ineffective assistance of counsel. We therefore do not reach the merits of defendant's contention.
1. Background Facts
Prior to sentencing, defendant stated, "The words that I'm going to read for you today were spoken by my master, which is Jesus Christ. He's the master of love, the master of law, and the master of justice. And I couldn't find any better words than the ones that he describes in the book of Luke, chapter 11:46. And it says: 'The he saith, [sic] woe, also to ye who are versed in the law because you load men with laws to be borne, but you yourselves do no touch the laws with one of your fingers.' [¶] This is one of the last speeches Jesus Christ had before he was crucified. He wasn't afraid to say those words because he knew how the system—at that time about 2000 years ago—it was. He wasn't afraid about what they were going to do with him. [¶] And I know I am not Jesus. I'm just a human being. I'm just a person that cannot be mentioned in this case with the human being of Jesus Christ."
After hearing argument from both sides, statements from defendant, Fuentes, and K.F., the trial court sentenced defendant, stating, "[K.F.], who just spoke, was six years old when the defendant began sexually abusing her. As her biological father, he took advantage of his young daughter's trust. The one person who should have been protecting her from predators was the predator himself. [¶] It was clear from the defendant's testimony during trial that he considers himself to be a good father; that he did not feel he did anything wrong. But that was totally contradicted by his daughter's testimony. [¶] [K.F.] was an extremely credible and believable witness. Twelve jurors believed her. It is this court's hope that both her mother's family and her father's family will support her and help her. The person who should be receiving sympathy is not the defendant; it is [K.F.] [¶] Here in court today the defendant has stated that justice is missing, that he did not receive a fair trial. The court agrees with [K.F.'s] mother that this would have been an opportunity for the defendant to apologize for the crimes, the horrific crimes committed against his daughter. But he chose instead to state that he has done nothing wrong, that it was not a fair trial, and he quoted from the Bible. [¶] At this time probation is denied. [¶] The defendant is sentenced to the high term of 16 years . . . for the following reasons: the crimes involved—the crime involved in Count One involved great violence and great bodily harm and great bodily violence, as well. [¶] It appears to this court that [K.F.] is an extremely strong person who now has some wonderful support and will get through this. But his was a grievous harm. The victim is particularly vulnerable. She was extremely young, and defendant took advantage of a position of trust in choosing to abuse his own daughter. [¶] The defendant perjured himself during trial. As pointed out by the prosecutor, this also involved a pattern of violent conduct. [¶] Factors in mitigation are that the defendant have [sic] no prior criminal record and that he received a score of zero on the Static 99 report, which reflects a low range for sexual recidivism. The court is required to consider this report. [¶] The factors in aggravation outweigh the factors in mitigation."
2. Analysis
In People v. Gonzalez (2003) 31 Cal.4th 745, 751, the Supreme Court explained the forfeiture rule in the context of discretionary sentencing decisions of the trial court as follows: "In [People v.] Scott [(1994) 9 Cal.4th 331], this court prospectively announced a new rule: A party in a criminal case may not, on appeal, raise 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' if the party did not object to the sentence at trial. ([People v.] Scott, supra, 9 Cal.4th at p. 353.) The rule applies to 'cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons' (ibid.), but the rule does not apply when the sentence is legally unauthorized (id. at p. 354)." We agree with the Attorney General that defendant forfeited his claims because he failed to object to the sentencing on the ground that the trial court improperly used defendant's religious beliefs as a basis for sentencing him.
Defendant concedes that his trial counsel did not object at the time of sentencing, but without specifically requesting that we exercise it, argues that we have the discretion to review the issue. We decline to do so. Accordingly, we consider defendant's claim that he received ineffective assistance of counsel.
Defendant has the burden of proving ineffective assistance of counsel. (People v. Lucas (1995) 12 Cal.4th 415, 436.) In order to establish such a claim, defendant must show that his counsel's performance fell below an objective standard of reasonableness, and that, but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.) If the defendant fails to make a sufficient showing either of deficient performance or prejudice, the ineffective assistance claim fails. (People v. Foster (2003) 111 Cal.App.4th 379, 383.)
"When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.]" (People v. Anderson (2001) 25 Cal.4th 543, 569.) "A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding." (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
The record does not reflect why defendant's trial counsel failed to object to the sentencing on the ground that the trial court improperly used defendant's religious beliefs as a basis for his sentence. As the Attorney General asserts, there could be a satisfactory explanation for counsel not asserting an objection—"[defendant's] trial counsel may have decided not to object to the court's statement of reasons because the trial court said nothing objectionable, and any such objection would only draw more attention to the heinous nature of [defendant's] crimes and his failure to express remorse." We generally do not determine the claim of ineffective assistance of counsel on appeal because it is a claim more appropriately raised by a petition for a writ of habeas corpus. (People v. Tafoya (2007) 42 Cal.4th 147, 196, fn. 12 ["a claim of ineffective assistance of counsel is more appropriately raised in a petition for writ of habeas corpus [citation], where 'relevant facts and circumstances not reflected in the record on appeal, such as counsel's reasons for pursuing or not pursuing a particular trial strategy, can be brought to light to inform the two-pronged inquiry of whether counsel's "representation fell below an objective standard of reasonableness," and whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."'"].) Defendant has failed to establish that he received ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MOSK, J.
We concur:
ARMSTRONG, Acting P. J.
KRIEGLER, J.