Opinion
A145786
11-13-2017
THE PEOPLE, Plaintiff and Respondent, v. FLOR ANGELICA GARCIA-MORTEO et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR-624821)
Defendant Eloy Cazares Perez sexually abused Jane Doe for over a decade, starting around her ninth birthday. Defendant Flor Garcia-Morteo, a woman Doe believed was her mother, enabled the abuse. Perez began raping Doe when she was 11 years old, and he impregnated her shortly after she turned 13. Six months after Doe gave birth to a daughter, Perez impregnated her again, and she gave birth to a son when she was 15.
Doe reported the abuse to the police when she was 25. Perez and Garcia-Morteo were charged with one count of aggravated assault of a child under 14 and one count of lewd acts upon a child under 14 based upon acts committed while Doe was 11, including the first time Perez raped her. Both defendants were also charged with the same two crimes for acts committed during two other periods, when Doe was 12 and when she was 13. Perez was charged with a count of rape for acts committed when Doe was 13, and he was alleged to have inflicted great bodily injury (GBI) for all three counts based on acts when Doe was 13. Finally, both defendants were charged with one count of rape for acts committed when Doe was 14, with the accompanying allegation that Perez inflicted GBI.
The charges were brought under Penal Code sections 269, subdivision (a)(1) (aggravated sexual assault) and 288, subdivision (a) (lewd acts).
The rape charges were brought under Penal Code section 261, subdivision (a)(2). The GBI allegations accompanying the count of aggravated sexual assault and the two rape counts were made under Penal Code section 12022.8, and the GBI allegation accompanying the lewd-acts count was made under Penal Code section 12022.7, subdivision (a).
The primary contested issue at trial was Doe's real birthdate. Extensive evidence was introduced that Doe was born in 1986. Defendants, however, claimed that she was born in 1982, a contention that, if proven, would have compelled a rejection of some, but not all, of the charges. The jury convicted defendants of all the charges and found true all the GBI allegations against Perez. The trial court sentenced Garcia-Morteo to a determinate term of three years and an indeterminate term of 45 years to life in prison. The court sentenced Perez to a determinate term of five years and an indeterminate term of 60 years to life in prison.
On appeal, Perez contends there is insufficient evidence to support any of his convictions, and Garcia-Morteo contends there is insufficient evidence to support her conviction of one of the counts of aggravated sexual assault, based on Perez's first rape of Doe when Doe was 11. Both defendants claim that the trial court erred by excluding statements by Doe's two children to the effect that Doe was a bad mother, and Perez claims that the court erred by admitting Doe's Mexican birth certificate and certain statements made by Garcia-Morteo. Both defendants contend that the court failed to properly instruct the jury on the People's burden to prove Doe's age, and Perez claims that the court erred by not instructing the jury on statements of a coconspirator. Finally, both defendants claim that cumulative error requires reversal of the convictions. We are not persuaded by any of these claims, and we therefore affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Doe testified that she was born on December 10, 1986. Garcia-Morteo, who was born in 1963, raised Doe in Mexico from birth, and Doe grew up believing Garcia-Morteo was her mother. In fact, as the parties stipulated, Garcia-Morteo is not Doe's biological mother.
A. Veracruz: Ages Five to Eight.
In 1992, when Doe was almost six, Garcia-Morteo sent her to live with Garcia-Morteo's mother in Veracruz, Mexico. Doe had "a normal life" with her grandmother, and she celebrated her birthday every December 10. Garcia-Morteo would call and speak to Doe almost every day and promise that they would eventually be reunited.
In June 1993, when Doe was six and a half, her grandmother took her to obtain a birth certificate so that she could enroll in school. Doe testified that she confirmed her name and her birthdate of December 10, 1986, and the paperwork was issued. Doe's grandmother pretended to be Garcia-Morteo and signed the birth certificate with Garcia-Morteo's name. That fall, Doe entered school, and she completed kindergarten and first grade in Veracruz.
The birth certificate and an accompanying attestation were admitted at trial. As discussed in more detail in section II.D. below, an attorney registered with the State Bar as a foreign legal consultant was qualified as an expert in Mexican legal documents and testified that the birth certificate was legitimate and presumed to contain accurate information.
B. Tijuana: Ages Eight to Ten.
In August 1995, Doe and her grandmother traveled to Tijuana because Doe was now going to live with Garcia-Morteo and Garcia-Morteo's boyfriend, Perez, who was born in 1957. Doe had not met Perez before, but she was very happy to be reunited with Garcia-Morteo and excited that she "was actually going to have a dad for the first time." A few days after Doe arrived in Tijuana, the family, including Perez, celebrated her ninth birthday so that her grandmother could be present. Doe recalled having a nine-shaped candle on her cake. She received birthday presents in December, although there was not another party.
Doe had her own bedroom in defendants' house, and she testified that initially "everything was . . . perfect." She began second grade a couple weeks after moving back to Tijuana. A couple months after Doe moved back, Perez's three sons moved in and took Doe's bedroom, and Doe began sleeping with defendants in their bedroom. Doe became uncomfortable around Perez. He would "look at [her] wrong . . ., not how a dad looks [at] a daughter," and would tickle her and touch her, including on her breasts. Soon after Doe moved into the bedroom, Perez began groping her at night, and she would wake up to find him kneeling next to her bed "touching [her] butt, touching [her] vagina, touching [her] breast, and within [her] thighs." She told Perez to stop, but he "would say things like, 'Oh, you're going to like it' or . . . 'I'll give you some money after.' " Doe was also often awakened by defendants having sex.
A month or so after Perez began touching her, Doe told Garcia-Morteo that the touching made her uncomfortable and she wanted it to stop. Garcia-Morteo responded, " 'You think I don't notice. I'm not stupid. . . . I do know what's going on.' " Doe started crying and asked what would happen, and Garcia-Morteo "just said that that's life. And I had to learn, and that he was getting a lot of money at that time, and he was going to reward me, that I have to [keep] quiet, don't complain, and that she went through the same thing when she was young." Asked how she felt after this conversation, Doe testified, "Devastated, because she was my mom. She was supposed to protect me."
After Doe's talk with Garcia-Morteo, things "got worse." Defendants openly had sex in front of Doe, telling her "that [she] had to learn, that [she had] to watch." After having sex with Garcia-Morteo, Perez would touch Doe's private parts, including digital penetration of her vagina, and masturbate. Perez also began touching Doe a few times a week during the day, while Garcia-Morteo went out to get dinner. Doe told him to stop, but he continued to tell her she was going to enjoy it.
Meanwhile, Doe faced medical challenges. Shortly after Doe returned to Tijuana, another child threw sand in Doe's face. As a result, Doe required several eye surgeries, and she had to stop going to school. She eventually began third grade, which she characterized as "a bad experience" because she had to wear an eye patch and was bullied for having gained weight from the eye medicine. After a few months being back in school, she fractured her femur, near her hip, when she missed a step at school, and she had to stop going to school again. She underwent surgery for her leg and was in a wheelchair for a few months. Perez continued to molest Doe while she was recuperating from her leg injury.
C. Santa Rosa: Ages 10 to 16.
In the fall of 1997, when Doe was 10, she, Garcia-Morteo, Perez, and Perez's sons moved to California. Defendants told the children that they were moving to the United States because Doe needed better doctors and they did not have enough money to continue her treatment.
The family began living with Perez's parents in their house in Santa Rosa. Defendants and Doe shared a large room downstairs, and Perez's sons lived upstairs. Doe, who was using a walker because of her leg injury, did not attend school, and she "was always in the house" when she was not going to the doctor or in the hospital. She testified that the bedroom was kept locked and she "wasn't supposed to go out for anything." In December 1997, she celebrated her eleventh birthday at the house with Perez's family, and she remembered having 11 candles on her cake.
After the family moved to Santa Rosa, Perez continued to touch Doe, mostly at night. Doe now slept in the same bed as defendants, and Perez would touch Doe's vagina in conjunction with having sex with Garcia-Morteo. Perez would also rub himself against Doe and ejaculate onto her when Garcia-Morteo was not in the room. Doe stopped protesting to Garcia-Morteo because "it was not worth it" to risk angering defendants.
In late 1998, soon before Doe turned 12, Perez penetrated her with his penis for the first time. Doe and defendants were watching television in their bedroom, and Perez told Garcia-Morteo to go make dinner. As soon as Garcia-Morteo left, Perez locked the door, closed the blinds, and turned up the television's volume. Perez then took off Doe's clothes, kissed her body, and penetrated her. She testified, "He said that I was his now. And he said that it was finally in after all . . . this time. He was happy." On previous occasions, "he would always rub on the outside of [her] vagina. He would introduce a little bit, because he would tell [her], 'Oh, I'm going to be careful with you so I won't hurt you, . . . so it's not painful.' " Doe, feeling "[h]elpless" and "disgusted," looked at the television as Perez raped her.
Several times afterward, Doe told Garcia-Morteo that Perez was raping her and asked why Garcia-Morteo was letting him do that. Garcia-Morteo "would get super mad," and "[s]he just said to stop playing the victim. Stop crying. And just, you know, that I was going to learn, that I should be thankful because he . . . helped me learn about life. Everything that I knew was because of them. And because he didn't penetrate me at once, that he did it carefully, that he care[d] about me, and that I should be thankful because of that."
After moving to Santa Rosa, Doe began attending fifth grade in the middle of the school year. After finishing fifth grade, she began sixth grade at the same school. During sixth grade, Perez continued to rape her a couple times a week, "[e]very time he felt like it," both after she got home from school and at night. Garcia-Morteo was not present during the day but was in the same room at night.
Doe began seventh grade at a new school, where she was registered with a birthdate of December 10, 1986, and Perez continued to rape her. While at the house, Doe spent most of her time in the bedroom because Perez's mother "was really delicate on stuff, and you couldn't go out, because you couldn't touch anything. You couldn't get anything dirty. You couldn't play outside." Doe never told any of Perez's family members about the abuse because she did not feel comfortable around them.
In December 1999, Doe celebrated her thirteenth birthday and had a cake with a 13-shaped candle on it. The following April, she and Garcia-Morteo were at a drugstore, and Garcia-Morteo asked if she needed feminine hygiene products. Garcia-Morteo then realized that Doe had not had her period recently and bought a pregnancy test.
Doe took the pregnancy test when they got home, not understanding what it was. When Garcia-Morteo saw the results, she said, " 'Oh, my God,' " and told Doe that she was pregnant. Garcia-Morteo, who was "speechless," got Perez and told him Doe was pregnant. Perez seemed to be "in shock, but he didn't seem bothered. He seemed happy." Garcia-Morteo told Perez that Doe "needed to be taken out of school immediately," they needed to cover up the reason, and they needed to change her name and birthdate.
Doe went to school the following day, and Garcia-Morteo told her not to talk to anyone. A couple days later, Garcia-Morteo took Doe to the school office and withdrew her, explaining that they "were going to move soon to San Diego." Doe "was really sad and upset" to be taken out of school, because "it was the only place for [her] to be normal, to be a child." She never went back to school again.
A couple weeks after discovering Doe was pregnant, Garcia-Morteo took Doe to the doctor for a prenatal checkup. Before the appointment, defendants told Doe that she "wasn't going to use [her] name or age any[]more" but instead would use her " 'real biological father's last name' " and a different birthdate, because Doe was " 'too young to have a baby' " and they did not " 'want anyone to suspect anything.' " Garcia-Morteo told Doe the new birthdate was necessary because otherwise the police would realize that Doe was too young and take away the baby. Doe used her middle name as her first name, a new last name, and a birthdate of July 10, 1982, at the appointment.
Meanwhile, at Garcia-Morteo's direction, Doe had been using a birthdate of December 10, 1987, a year later than her actual birthdate, at medical appointments for her eye. Garcia-Morteo explained to Doe that the later birthdate was necessary for future surgeries to be covered under a free program.
Doe went to several doctor's appointments during her pregnancy, but Garcia-Morteo was always with her so she was never able to tell anyone that Perez was sexually abusing her. Doe also did not want to say anything because she was afraid her baby would be taken away from her. Doe was in a lot of pain because her leg still hurt and she gained a lot of weight, inhibiting her movement. Perez continued to rape her throughout the pregnancy.
Doe's daughter was born in October 2000 in Santa Rosa, two months before Doe turned 14. Defendants chose first and middle names for the baby that were based on their own names. Doe's new name and birthdate appeared on her daughter's birth certificate, and Perez was named as the baby's father. The parties stipulated that he is the biological father of Doe's daughter.
After coming home from the hospital, the baby lived in the same room with Doe, Garcia-Morteo, and Perez. Perez resumed raping Doe two weeks after she gave birth. Doe testified that she spent all her time in the bedroom with the baby and "wasn't able to go anywhere." In December 2000, Doe's fourteenth birthday was celebrated with a cake and presents.
Around the same time, after Doe again complained about Perez's sexual abuse, Garcia-Morteo revealed that she was not Doe's biological mother and that Doe was the daughter of her previous husband and her husband's lover. Doe testified, "[Garcia-Morteo] just started saying that I should be thankful, because I was a piece of trash. And if it wasn't thanks to her [then] I would have been dead already, because she wasn't even my real mom."
About six months after her daughter was born, around April 2001, Doe discovered that she was pregnant again. She attended prenatal appointments using the same new name and birthdate. Doe again experienced a lot of discomfort and pain, and Perez continued to rape her.
Doe's son was born in Santa Rosa in February 2002, shortly after Doe turned 15. Doe used her new name and birthdate on her son's birth certificate. Perez was listed as the baby's father, and the parties stipulated that he is the son's biological father. The same bedroom was now being shared by Doe, defendants, and the two children.
D. Return to Santa Rosa: Ages 16 to 25.
In approximately August 2003, Doe, defendants, Doe's children, and Perez's sons all moved to Madera. The following year, they moved back to Santa Rosa and into Perez's parents' new house. Doe, defendants, and Doe's children lived together in an upstairs bedroom. Throughout this period, Perez continued to rape Doe, whose birthday was still celebrated every December 10. When Doe told Garcia-Morteo that she wanted a normal life, Garcia-Morteo would become "furious."
Eventually, Doe told Garcia-Morteo that she did not want to continue to live. Defendants were not getting along with each other, and Garcia-Morteo told Doe "that everything was going to change. That she was going to help me. That we were going to get out of that place, meaning, the bedroom." After saving enough money, Garcia-Morteo moved with Doe and Doe's children to an apartment in Santa Rosa in early 2008.
Four years later, in February 2012, Doe and Garcia-Morteo had a physical fight. Doe testified that Garcia-Morteo attacked her and pulled her hair. Doe decided that she wanted to move out of the apartment, and defendants, who had apparently rekindled their relationship, responded by seeking joint emergency custody of Doe's children.
The following month, Doe reported her fight with Garcia-Morteo to the police, using her new name and the 1982 birthdate. At trial, Doe explained why she had used this name and birthdate. She testified that when she first became pregnant, Garcia-Morteo told her she had to use the new identifying information "forever." Evidence was also presented that Doe provided the new name and birthdate (1) when the police made contact with her during an unrelated incident in May 2012 and (2) when she requested certain police records later that month in a document she signed under penalty of perjury that she was "the individual named."
F. Defendants' Joint Police Interview.
Doe and her children moved out of Garcia-Morteo's apartment at the end of March 2012. A few days later, Doe reported the sexual abuse to the police. She testified that she "finally did the report because [Garcia-Morteo] went back with [Perez], and they wanted . . . custody of both of my kids." Referring to the abuse, Doe testified, "I didn't want this to happen to one of my kids," who were now 11 and 10.
In July 2012, Detective Christopher Mahurin of the Santa Rosa Police Department interviewed defendants together at their house. An audio recording of the interview, which was conducted in Spanish, was played for the jury, and the jury received a transcript with an English translation.
Detective Mahurin testified that he did not tell defendants that he was conducting a criminal investigation but instead "gave the impression that [he] was helping [Child Protective Services] with [an] investigation" involving Doe's children. The detective asked how defendants knew Doe, and Perez responded that Doe had "met" them in Mexico. Garcia-Morteo later explained that she had cared for Doe since Doe was "a few hours old."
Garcia-Morteo stated that she and Perez had dated for only about two years while still in Mexico and were already broken up when they moved to California. Detective Mahurin asked how old Doe was when they came to the United States, and Garcia-Morteo responded that Doe was around 11 or 12.
Perez claimed that he and Doe were in a relationship for eight years until December 2007, when Doe and Garcia-Morteo moved out. Garcia-Morteo said that during the time Doe and Perez were supposedly dating, they lived in one bedroom at Perez's parents' house and Garcia-Morteo lived in another. When asked whether she was bothered that Perez was in a relationship with her daughter for eight years after being with her, Garcia-Morteo indicated that she and Perez had "split up on good terms" and she did not initially know about the relationship.
Garcia-Morteo claimed that Doe changed after she made new friends and began to "come home drunk." Doe would sometimes not return to the apartment for days at a time. According to Garcia-Morteo, Doe was the one who started the physical fight the previous February. Perez claimed that Doe had "made up all of the charges against [him]" after he requested emergency custody of the two children because Doe wanted to continue collecting the children's public benefits.
On the topic of Doe's name, Garcia-Morteo explained that Doe preferred her middle name and that is why she used it as her first name. Garcia-Morteo also explained that the last name on Doe's birth certificate was different than the last name Doe now went by because the previous last name was the last name of the man Garcia-Morteo lived with when Doe was young but the new last name was Doe's real father's. Perez said he had not known that the new last name was not the one on Doe's birth certificate.
When asked about Doe's birthdate, Garcia-Morteo stated that it was December 10, 1986. At trial, Detective Mahurin indicated that Perez did not say anything in response or "make any sort of head gestures or body movements showing his disagreement with that particular date that was given" by Garcia-Morteo. Garcia-Morteo explained that "ever since [Doe] was young she was very big, she would always change her age, she would always change her age, you understand," and implied that Doe had misrepresented her age to Perez. Perez indicated that he believed Doe "was almost 16 years old" when he first began having "relations" with her but said, "[R]ight now it turns out that . . . what she said, the date she gave, . . . she was younger." Perez denied having ever seen Doe's birth certificate.
G. Defense Evidence.
Garcia-Morteo called several witnesses who testified about the February 2012 altercation between her and Doe. A male neighbor who lived in the same apartment building as the women testified that around midnight on the night in question, he was awakened by knocking. When he answered the door, Doe's children were standing outside, "scared" and "crying," and they said "to please help their grandmother." He went outside to the building's parking lot with the children and saw Doe "pulling [Garcia-Morteo] by the hair." He did not see Doe hit Garcia-Morteo, but Doe was cursing at the other woman. Garcia-Morteo seemed like she "wanted to get away from that scene" and appeared "very frightened of . . . Doe." He separated the two women, and Garcia-Morteo left with the children. The neighbor's mother was also there for part of the incident and testified that Doe insulted Garcia-Morteo and tried to grab her by the hair.
Perez's sister testified that Garcia-Morteo and the children arrived at the sister's house later that night. Garcia-Morteo and the children appeared "[v]ery agitated, very upset, and very scared." Garcia-Morteo said that Doe had hit her. Perez's sister testified that she routinely visited her parents' house while defendants lived there with Doe and that she was not aware of any mistreatment of Doe.
Garcia-Morteo also called as witnesses two Santa Rosa police officers who took Doe's report about the February 2012 fight. One officer testified that Doe said she wanted to make a report "to use it in a custody battle" and suggested that she did not ask him to take any action against Garcia-Morteo. Similarly, the other officer testified that Doe said Garcia-Morteo had attacked her but that she did not want to press charges for the assault.
Another neighbor at the apartment complex testified that Garcia-Morteo and Doe's relationship got worse about a year after the two women moved into the building. The neighbor heard Doe call Garcia-Morteo names and saw Doe hit Garcia-Morteo on one occasion, causing Garcia-Morteo to cry. That neighbor, another female neighbor, Perez's sister, the male neighbor, and the male neighbor's mother all testified that Garcia-Morteo had a good reputation for taking care of children.
Perez called Detective Mahurin to impeach certain aspects of Doe's testimony. Perez elicited the detective's testimony that Doe had never told him that (1) she was locked in her bedroom or forbidden from speaking to other people in Perez's parents' home; (2) she was told Garcia-Morteo might go to jail if Doe reported Perez's abuse; and (3) she had used a December 1987 birthdate to obtain treatment for her eye.
II.
DISCUSSION
A. Substantial Evidence Supports Perez's Convictions.
Perez claims there is insufficient evidence to sustain his convictions. We have no difficulty rejecting this claim.
Perez first contends that there is insufficient evidence to support any of his eight convictions, but he does not explain why he believes the evidence was lacking. "When an appellant asserts a point but fails to support it with reasoned argument and citations to authority, we treat the point as forfeited." (Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1066.) Thus, we do not address his cursory assertion.
Perez also claims there is insufficient evidence to support the convictions of the offenses requiring proof of Doe's age—aggravated sexual assault and lewd acts—because (1) the Mexican birth certificate was improperly admitted and (2) the trial court failed to instruct that Doe's age had to be established beyond a reasonable doubt. As we discuss in parts II.D. and II.F. below, we conclude that the birth certificate was properly admitted and the jury was properly instructed. Even if we had concluded otherwise, however, our assessment of whether substantial evidence supports Perez's convictions would be unaffected. As the Attorney General points out, when reviewing the sufficiency of the evidence we "consider all of the evidence presented at trial, including evidence that should not have been admitted." (People v. Story (2009) 45 Cal.4th 1282, 1296.) And we do not consider the jury instructions, which are not evidence. Because the merits of his other claims do not affect our analysis, Perez fails to demonstrate that his convictions lack substantial evidence.
B. Substantial Evidence Supports Garcia-Morteo's Conviction for Aggravated Sexual Assault of a Child Based on Perez's First Rape of Doe.
Garcia-Morteo contends that insufficient evidence supports her conviction for aggravated sexual assault of a child based on her aiding and abetting Perez's rape of Doe when Doe was 11. We are not persuaded.
In assessing this claim, we " 'review[] the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Bolden (2002) 29 Cal.4th 515, 553.) " 'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.' " (People v. Brooks (2017) 3 Cal.5th 1, 57.) Whether a defendant aided and abetted a crime " 'is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment.' " (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
A person who commits rape in violation of Penal Code section 261, subdivision (a)(2) of "a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child." (Pen. Code, § 269, subd. (a)(1).) Rape is a general intent crime that requires an intent to sexually penetrate the victim without the victim's consent. (People v. Linwood (2003) 105 Cal.App.4th 59, 70; see Pen. Code, § 261, subd. (a)(2).) Garcia-Morteo does not contest that there was sufficient evidence that Perez committed this crime but rather contends that there was insufficient evidence of her own intent or any act in furtherance of the rape to support her liability as an aider and abettor.
" '[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages, or instigates, the commission of the crime.' " (People v. Johnson (2016) 62 Cal.4th 600, 630.) Relevant factors include the defendant's " 'presence at the crime scene, companionship, and conduct before and after the offense.' " (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1065.)
Garcia-Morteo claims there was "no evidence that [she] performed any act which assisted" the rape. She argues that the evidence shows she merely left the bedroom to cook dinner and that "the failure of a person . . . to prevent a crime does not constitute aiding and abetting." Although "[g]enerally, failure to prevent a crime is insufficient to establish aiding and abetting liability," case law has recognized that " 'aiding and abetting liability can be premised on a parent's failure to fulfill his or her common law duty to protect his or her child from attack.' " (People v. Ogg (2013) 219 Cal.App.4th 173, 181 (Ogg).) In Ogg, the Second District Court of Appeal applied this principle to hold there was sufficient evidence to support a mother's conviction of aiding and abetting her boyfriend's continuous sexual abuse of her daughter where the mother "knew the full extent of [her boyfriend's] criminal purpose and, by her inaction, intended to facilitate his sexual abuse." (Id. at pp. 176, 181.) Under Ogg, the evidence of Garcia-Morteo's inaction is sufficient so long as Garcia-Morteo was aware of Perez's intent and intended to facilitate his rape of Doe.
Garcia-Morteo argues that Ogg is distinguishable because in that case, the mother was found guilty of aiding and abetting the same type of abusive acts she was aware her boyfriend had previously committed. (See Ogg, supra, 219 Cal.App.4th at pp. 177-178, 180.) Garcia-Morteo argues that here, in contrast, there is insufficient evidence that she knew Perez intended to rape Doe because he had never done so before.
We are not persuaded by this argument because there is no dispute that Garcia-Morteo was aware Perez had been molesting Doe for years before the first rape occurred and encouraged the abuse, including by leaving Doe alone with Perez and ignoring Doe's pleas for help. In addition, Doe testified that defendants had sex in front of her and told her that she needed to watch and learn, suggesting Garcia-Morteo knew Perez's abuse of Doe was leading up to rape. Indeed, when Doe told Garcia-Morteo about the first rape, Garcia-Morteo responded by saying Doe should be thankful because Perez was teaching her about life and had been gentle by not penetrating her "at once," supporting the inference that Garcia-Morteo was aware that Perez's abuse had been progressing to full penetration. We agree with the Attorney General that this evidence supports a reasonable inference that Garcia-Morteo knew Perez intended to rape Doe and intended to facilitate that crime.
Garcia-Morteo responds that there was no evidence that she knew Perez intended to have sexual intercourse with Doe on the day in question or at any other time before Doe turned 12. Garcia-Morteo fails to cite any authority, and we are aware of none, for the proposition that she must have intended to facilitate Perez's rape of Doe at a particular time. Garcia-Morteo also suggests that "acts which she committed in Mexico years earlier" cannot support the conviction, but her inaction in California is sufficient to establish aiding and abetting liability under Ogg. Her conduct in Mexico is relevant not because it establishes she failed to prevent the first rape but because it supports the inference that she had the requisite intent to aid and abet Perez's crime when she did not protect Doe in California. We conclude that substantial evidence supports Garcia-Morteo's conviction for aggravated sexual assault of a child based on Perez's rape of Doe when Doe was 11.
C. The Trial Court Properly Excluded Statements by Doe's Children.
Defendants contend that the trial court erred by not permitting Doe's children to testify and excluding written statements the children submitted in the family law case involving the custody dispute. We disagree.
Garcia-Morteo argues in a related petition for a writ of habeas corpus that she was denied her constitutional right to introduce evidence when the trial court excluded the statements of Doe's children and refused to admit documents from the family law case. By separate order, we deny Garcia-Morteo's habeas petition. (In re Flor Garcia-Morteo, A150329.)
1. Additional facts.
Both of Doe's children submitted letters in the family law case that were dated April 4, 2012, two days after Doe reported to the police that Perez had sexually abused her. Both children stated that Doe mistreated them, including by not giving them enough food, that they had seen Doe hit Garcia-Morteo, and that they wanted to live with Garcia-Morteo. In addition, Doe's daughter stated that she "had to go to the hospital three times because [she] felt that [her] chest was about to explode" from being around Doe.
Garcia-Morteo sought to introduce the children's statements at trial. Originally, this case was set to be tried before a different judge, who indicated that she was not inclined to allow Doe's children to testify and would not permit evidence about Doe's daughter's trips to the emergency room but that she would take judicial notice of the fact that in the family law case both children had "expressed a desire to live with" Garcia-Morteo. Garcia-Morteo's trial counsel stated that he was "very happy with" the ruling.
The trial was subsequently continued and reassigned to another judge, and the original judge vacated her pretrial rulings. Initially, the parties indicated that if the trial court ruled in defendants' favor, they agreed that the children would not be called as witnesses but that a stipulation about their statements could be reached. The prosecutor then argued that the children's statements, like other evidence involving the family law case, were inadmissible under Evidence Code section 352. Garcia-Morteo's trial counsel responded that the statements were admissible under section 780 because they bore on Doe's credibility and motivation to fabricate charges.
All further statutory references are to the Evidence Code unless otherwise noted.
The trial court ruled,
[P]rimarily under [section] 352, because this gets into a really dicey area, whenever you have . . . [f]amily [l]aw proceedings, and not knowing if there are manipulations going on, who caused these letters to be written, and the fact that [the children are] so young and focused on food, as well as I think most kids want to be with grandma, no matter what. . . .
There are so many dynamics that could be going on. This [could go] so sideways in so many ways and mislead the jury [into] a trial on the [f]amily [l]aw issues. So the Court is going to exclude any issue of neglect, alleged neglect, of the children, as [well] as any of the statements by the children, I don't find them relevant. I don't find them overly relevant to overcome the prejudice and [being] misleading and a waste of time. It's just going to be on an issue that evokes a lot of emotion on the part of jurors. . . . I just don't see it bearing on the issues before us.
Certainly, again, you can talk about the custody proceedings that are or were ongoing. . . But any of the other allegations and any of the statements of these two young children will be excluded.
The trial court later denied Garcia-Morteo's renewed request to call Doe's children as witnesses or introduced their statements that they had seen Doe attack Garcia-Morteo. The court explained,
[T]hese are fragile children, living in an extremely difficult and dysfunctional home at the time. Now they're with mom, the alleged victim, and you want to put them on the stand and have them testify against mom, which can't possibly be in the best interests of these children.
So I have to be mindful of that. This isn't family court. But the foundation for this, it's so suspect, it's so usual in a family law custody dispute that one party, and especially those that have the custody and control of the children at the time, produce letters just like this one, saying, mom's always drunk. She's always having evil thoughts. She's always attacking people. I don't want to live with her. It's so flagrantly suspect and unreliable, certainly not in the best interests of the children to pit them against the victim in this case, to have them testify in court, the alleged father, rapist of their mom. I mean, I can't think of a more bizarre scenario.
But the Court's ruling is strictly focused on [section] 352 grounds, that this is on a remote issue. It would really provide very little probative, relevant evidence on any issue that the jury needs to decide.
The argument that it just goes to reinforce the bias and prejudice the victim has is too remote. And because this is so unreliable, under [section] 352, I'm going to continue to . . . exclude it in any way, shape, or form.
2. Discussion.
Defendants contend that the trial court abused its discretion under section 352 and violated their federal constitutional rights by excluding the children's statements. We are not persuaded.
Under section 352, a trial court "in its discretion may exclude evidence if 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." We review the exclusion of evidence under section 352 for an abuse of discretion. (People v. Peoples (2016) 62 Cal.4th 718, 743.)
Defendants argue at length that the children's statements were admissible to impeach Doe's testimony and were highly relevant for two reasons. First, they claim that the children's description of Doe's poor parenting and the children's wishes to live with Garcia-Morteo gave Doe a motive to fabricate the charges in this case to improve her chances of gaining custody. Second, defendants claim that the children's statements that Doe was the one who hit Garcia-Morteo impeached Doe's general credibility.
Even if we were to assume that the evidence was relevant and admissible, that would not end the inquiry under section 352. Defendants argue that the trial court abused its discretion under that statute by focusing on the court's remark that allowing the children to testify could not "possibly be in [their] best interests." Defendants argue that the best interests of a child "may be a proper standard in a family law case" but "is not a proper standard in a criminal case." The court made clear, however, that it recognized "[t]his isn't family court" and that its "ruling [was] strictly focused on [section] 352 grounds." Moreover, defendants neglect to address the other grounds the court gave for excluding the children's statements, including that they were unreliable. As a result, defendants fail to demonstrate that the court abused its discretion in excluding the evidence. Because we conclude that the court did not err under section 352, we also reject defendants' cursory assertions that the ruling violated their federal constitutional rights to call witnesses and present a defense. (See People v. Snow (2003) 30 Cal.4th 43, 90 ["[a]pplication of the ordinary rules of evidence, such as . . . section 352, generally does not deprive the defendant of the opportunity to present a defense"].)
We do not consider Garcia-Morteo's claim of prosecutorial misconduct, raised for the first time in her reply brief, based on her contention that the prosecutor "acted with unclean hands" by successfully excluding the children's statements and then arguing that Doe was credible. (People v. Tully (2012) 54 Cal.4th 952, 1075 [arguments raised for the first time in reply brief are forfeited].)
D. The Trial Court Did Not Err by Admitting Mexican Legal Documents Establishing Doe's Age.
Although extensive evidence was introduced supporting the prosecution's contention that Doe was born on December 10, 1986, Perez claims that the trial court erred by admitting Mexican legal documents establishing this birthdate because, according to him, they contained false information and did not fall within any exception to the hearsay rule. We reject these claims.
1. Additional facts.
The prosecution filed a motion in limine requesting a hearing under section 402 to consider the admissibility of Doe's Mexican birth certificate. Garcia-Morteo filed a trial brief in which she argued that the birth certificate could not be admitted before the prosecution established it was authentic and fell within a hearsay exception.
During a discussion of the issue, the prosecutor explained that Doe had obtained a copy of the birth certificate from the Mexican Consulate in San Francisco. The prosecutor said that Doe had told him that she remembered going with her grandparents when she was six to obtain the birth certificate to enroll in school, and he represented that he had an expert witness who would testify that the document was legitimate. Garcia-Morteo's trial counsel reiterated objections that the document's authenticity had not been established and that it was inadmissible hearsay. Perez's trial counsel objected that some of the information in the birth certificate was known to be false, including the indication that Garcia-Morteo was Doe's mother, and that the prosecution was attempting "to mislead the trier of fact into believing that this is an official document that contains information that, through a certification, can be accepted by the Court as true." In response, the prosecutor argued that the birth certificate was admissible under section 1281, a hearsay exception for vital records.
The trial court subsequently held a hearing under section 402 at which the prosecution's expert witness on Mexican legal documents testified. The expert reviewed a copy of the document ultimately introduced at trial and explained that it was "a copy of a certified copy of a birth certificate from Mexico from the State of Veracruz." The expert testified that the agency that issued the certificate, the Office of Vital Records, issues documents "to give notice to third parties about birth, divorce, death, marriage of the civilians of the State." Doe's document contained "all the proper seals and signatures on the dates that provide good enough information to any attorney, even to any lay person in Mexico, that this is a valid and legitimate document," including the signature of the Director of the Office of Vital Records and a birth-certificate number.
The expert testified that he also researched whether Doe's birth certificate was legitimate. First, he confirmed that the document complied with the requirements of Veracruz's Civil Code. Second, he confirmed on the official website of the Office of Vital Records that Doe was registered. Finally, he called that agency and spoke to a clerk who confirmed "that all the information . . . in this birth certificate match[ed] a registration at the Office of Vital Records in the State of Veracruz." The expert also obtained an Apostille, an attestation of the Secretary of State in Veracruz "that the document issued in the State is legitimate, and that the signature that is on the document match[es] the records of the Secretary of . . . State." Based on his research and the Apostille, the expert opined that Doe's birth certificate was "a legitimate and valid document that . . . was properly registered in the State of Veracruz."
On cross-examination, the expert clarified that he had no opinion on whether the information in the birth certificate was truthful and that the Office of Vital Records does not investigate whether the information provided to it is accurate. He testified that "once this information is input into a certificate for the Office of Vital Records," however, "it's considered under Mexican laws as legal truth." He explained that in Mexico there is a court process for challenging a birth certificate as containing false information, but without a judge's order "you cannot change the information [in a] birth certificate." Thus, the information in a birth certificate is legally "true until it is challenged." The expert testified that he could tell Doe's birth certificate had never been challenged because if it had, both the certificate itself and the clerk at the Office of Vital Records whom he talked to would have noted that information.
The expert also addressed the fact that Doe was not registered until more than six years after her birth. He explained that while the general rule is that a registration must occur within one year of birth, a registration outside that time period is considered an "extraordinary registration, and it is fully valid."
At the hearing's conclusion, Perez's trial counsel argued that Doe's birth certificate was irrelevant because the truth of the information in it was unknown. Counsel also objected that there had been no showing that registration was "required" as necessary under section 1281. Garcia Morteo's trial counsel conceded that the birth certificate was authentic but argued that it was not "made and filed as required by law" under section 1281 because California law requires birth records to be filed within a year of birth.
The trial court ruled that Doe's birth certificate and the Apostille were admissible. It found the listing of Garcia-Morteo as Doe's mother not "telling" because "most birth certificates would list an adoptive parent as a parent without designation as to whether they're connected by [DNA] or not." It also concluded that the birth certificate appeared valid, that the date of birth appeared consistent with Doe's testimony at the preliminary hearing about the stages of her life, and that the presumption the document was accurate should be honored. The Apostille and two copies of the birth certificate were admitted, and the expert on Mexican legal documents testified in accordance with his testimony at the section 402 hearing.
2. Discussion.
Perez initially claims that the Mexican legal documents were "not authentic," citing authority involving section 1401's requirement that a writing be authenticated before it is admitted and section 1452's list of circumstances under which a seal is presumed genuine and its use authorized. Perez does not argue, however, that these statutory requirements were not satisfied here, and elsewhere he states that the birth certificate "was an accurate and authenticated copy of a false document lodged with an agency of a state in Mexico." Therefore, to the extent Perez's argument can be construed to be that the documents were not properly authenticated, it fails.
Perez's reference to authenticity appears to relate more to his contention that the documents contained false information. He argues that the birth certificate was "replete with evident inaccuracies and falsehoods that mandate[d] a finding that it was not genuine, authentic, or reliable." In particular, Perez alleges there was no showing that the birth certificate's "issuance was required" or that the document was "supported by any reliable or validated . . . evidence," highlighting the document's naming of Garcia-Morteo as Doe's mother and Doe's grandmother's forging of Garcia-Morteo's signature. Perez also complains that the expert was no longer available for cross-examination after Doe testified about the circumstances under which the birth certificate was obtained, that no cautionary instruction was given or mistrial was declared after Doe's testimony, and that the trial court denied a defense request to examine the prosecutor on his knowledge of the document's allegedly fraudulent aspects. In so claiming, however, Perez fails to explain why these circumstances show that the trial court's ruling constituted reversible error. As a result, he has forfeited these claims. (See Tellez v. Rich Voss Trucking, Inc., supra, 240 Cal.App.4th at p. 1066.)
Perez also claims that the Mexican legal documents were inadmissible because they did not fall within any exception to the hearsay rule. The Attorney General responds that the trial court properly admitted them under section 1281, which creates a hearsay exception for "[e]vidence of a writing made as a record of a birth . . . if the maker was required by law to file the writing in a designated public office and the writing was made and filed as required by law." We review the trial court's admission of evidence under an exception to the hearsay rule for an abuse of discretion. (People v. Martinez (2000) 22 Cal.4th 106, 120.)
Perez offers a single sentence of argument in support of his position, stating that section 1281 did not apply "because the evidence overwhelmingly establishes that there was no requirement or obligation to file the [birth certificate] within a designated public office, that it was filed in a timely fashion or even according to the applicable law." He does not, however, identify any such evidence in the record or otherwise explain his theory for why the documents did not meet section 1281's requirements. He therefore fails to demonstrate that the trial court abused its discretion in admitting them.
E. The Admission of Garcia-Morteo's Out-of-court Statements Did Not Violate Perez's Constitutional Rights.
Perez claims that the trial court violated the Confrontation Clause by admitting two sets of out-of-court statements made by Garcia-Morteo. We disagree.
1. Additional facts.
Before trial, the prosecution sought to introduce the July 2012 police interview of defendants and statements of Garcia-Morteo that were made to or overheard by Doe. The prosecution argued that defendants' interview statements were admissible as "admissions of the speaker, adoptive admissions of the non-speaker, and statements of co-conspirators" and that the statements heard by Doe were nontestimonial and did not implicate the Sixth Amendment. Defendants opposed the admission of these statements, arguing that the interview statements were testimonial and that none of the statements qualified for admission under an exception to the hearsay rule.
The trial court held a hearing under section 402 at which Detective Mahurin testified about his interview of defendants. Detective Mahurin stated that the interview was conducted when his investigation "was still in the preliminary stage of gathering information," that both defendants were present for the whole interview, and that neither one was in handcuffs or otherwise restrained. The detective also testified that Perez merely "sat there" when Garcia-Morteo stated that Doe's birthdate was in 1986 and did not use any body language to suggest he thought that the date was incorrect.
After hearing the parties' arguments, the trial court ruled that the police interview was admissible. The court found that the statements made by defendants during the interview were "adoptive by each other, as they both participated in[] this conversation on answers that were, clearly, against their interests as to the nature. [¶] They may have some naivety, not know[ing] exactly what they were admitting to, not a confession, but certainly rising to the level of admissions and statements against interest. And . . . as far as confrontation, . . . this is reliable question and answer, taken in the context of all the other evidence that the Court's aware of." When asked to clarify which statements were adoptive admissions and which were statements against interest, the court declined to do so.
The trial court also ruled that the statements of Garcia-Morteo to Doe were admissible. It explained, "The other statements that [Garcia-Morteo] made to [Doe], the actual age, the purported age being consistent through grammar school, the fact that [DNA] matched up and confirmed that these two children did, in fact, belong to [Perez]. Everything fits to be considered reliable. [¶] And . . . quite frankly, I don't see the confrontation clause as offended at all by admitting the totality of the statement without any cleansing or editing."
2. Garcia-Morteo's statements during the police interview.
Perez claims that the admission of Garcia-Morteo's interview statements violated the Confrontation Clause and the Aranda/Bruton rule. We conclude that if there was any error, it was harmless.
People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123.
Under Crawford v. Washington (2004) 541 U.S. 36 (Crawford), "the prosecution may not rely on 'testimonial' out-of-court statements unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination." (People v. Harris (2013) 57 Cal.4th 804, 840.) "The Aranda/Bruton rule addresses a specific issue that arises at joint trials when the prosecution seeks to admit the out-of-court statement of a nontestifying defendant that incriminates a codefendant." (People v. Capistrano (2014) 59 Cal.4th 830, 869.) Under the rule, such a statement " ' "is generally unreliable and hence inadmissible as violative of [the codefendant's] right of confrontation and cross-examination, even if a limiting instruction is given." ' " (People v. Homick (2012) 55 Cal.4th 816, 874.)
"The admission of an out-of-court statement as the predicate for an adoptive admission does not violate the principles enunciated in Crawford or in Aranda and Bruton," however, because once "a defendant has adopted a statement as his [or her] own, 'the defendant . . . is, in effect, the declarant . . . [and] there is no violation of the defendant's right to confront the declarant.' " (People v. Jennings (2010) 50 Cal.4th 616, 662.) To admit a statement as an adoptive admission against a party under section 1221, it must be demonstrated that the party " ' "(1) had knowledge of the contents of the declarant's statement, and (2) having such knowledge, has, by words or other conduct, manifested his [or her] adoption or his [or her] belief in its truth." ' " (People v. DeHoyos (2013) 57 Cal.4th 79, 133, italics omitted.)
Initially, although Perez claims that none of the statements Garcia-Morteo made during the police interview should have been admitted, the only statements he specifically identifies as objectionable are those involving Doe's birthdate. Indeed, he suggests that at least some of the interview statements were admissible, stating that the trial court erred by admitting all of them "without clarification or editing" (although he fails to specify what sort of clarification or editing he believes was required). We therefore agree with the Attorney General that Perez forfeited any challenge to the admission of statements other than those about Doe's birthdate.
Perez argues that Garcia-Morteo's statements about Doe's birthdate did not qualify as adoptive admissions because "[t]here was nothing for [him] to comment on or clarify as he did not know what was on her birth certificate or her age for sure, as he did clarify shortly thereafter." We need not determine whether Garcia-Morteo's statements qualified as adoptive admissions, however, because any error in their admission was clearly harmless, and Perez does not argue otherwise. There was ample other evidence in the record that Doe was born on December 10, 1986, including the birth certificate and Apostille, Doe's school registration, Doe's testimony about her birthday celebrations, and Garcia-Morteo's statements on other occasions affirming the accuracy of that date. Moreover, there was significant other evidence that Perez knew Doe's real age, including Doe's testimony that he was present to see birthday cakes with candles accurately indicating her age and his discussion with Garcia-Morteo about the need to hide Doe's age after Doe became pregnant with her daughter. Therefore, any purported constitutional error was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24) and it was not reasonably probable that Perez would have received a more favorable verdict if the trial court had not admitted the statements. (People v. Watson (1956) 46 Cal.2d 818, 836.)
3. Garcia-Morteo's statements that Doe heard.
Perez also claims the trial court erred by admitting statements Doe heard Garcia-Morteo make because they were inadmissible as statements of a coconspirator (section 1223) or as statements against penal interest (section 1230). In particular, he challenges the admission of (1) Garcia-Morteo's statements that she knew what was going on and that Doe had to keep quiet and not complain after Doe first disclosed Perez's sexual abuse; (2) Garcia-Morteo's later statements along the same lines that she knew about the abuse and that Doe had to put up with it; and (3) Garcia-Morteo's statements in response to Doe's complaints about being raped that Doe should be thankful that Perez was teaching her about life and was careful to not "penetrate [Doe] at once." We conclude that Perez has failed to demonstrate any error in the statements' admission as statements against interest, and we therefore need not address whether they were also admissible as statements of a coconspirator.
As a result of our conclusion that the statements were properly admitted as statements against interest, we also need not address Perez's claim that the trial court failed to instruct the jury under CALCRIM Nos. 416 and 418 involving uncharged conspiracies and coconspirators' statements, because any failure to do so was necessarily harmless.
Under section 1230, a hearsay statement "by a declarant having sufficient knowledge of the subject" is admissible as a statement against interest "if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected [the declarant] to the risk of civil or criminal liability, . . . or created such a risk of making [the declarant] an object of hatred, ridicule, or social disgrace in the community, that a reasonable [person] in [the declarant's] position would not have made the statement unless he [or she] believed it to be true." (§ 1230.) In addition to demonstrating that " 'the declarant is unavailable . . . [and] that the declaration was against the declarant's penal interest when made,' " the party seeking to admit such evidence must show " 'that the declaration [is] sufficiently reliable to warrant admission despite its hearsay character.' " (People v. Brown (2003) 31 Cal.4th 518, 535.)
Perez does not dispute that Garcia-Morteo was unavailable as a witness or that the statements were against her penal interest. Instead, he claims that the statements were not sufficiently trustworthy, as required by Lilly v. Virginia (1999) 527 U.S. 116 (Lilly). Lilly held that "admission of hearsay evidence is not inconsistent with the confrontation clause if such statements fall within a ' "firmly rooted hearsay exception" ' or they contain ' "particularized guarantees of trustworthiness" such that adversarial testing would be expected to add little, if anything to the statements' reliability.' " (People v. Brown, supra, 31 Cal.4th at p. 538, quoting Lilly, at pp. 124-125 (plur. opn.).)
Lilly was decided before Crawford, however, which "abandoned that approach and adopted this general rule: The prosecution may not use '[t]estimonial statements' of a witness who does not appear at trial, unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination." (People v. Dungo (2012) 55 Cal.4th 608, 616.) Indeed, Lilly "retain[s] no relevance to a determination whether a particular hearsay statement is admissible under the confrontation clause" because "the confrontation clause is concerned solely with hearsay statements that are testimonial." (People v. Cage (2007) 40 Cal.4th 965, 981 & fn. 10.) Perez does not argue that Garcia-Morteo's statements to or overheard by Doe were testimonial, and we agree with the Attorney General that they were not. (See People v. Sanchez (2016) 63 Cal.4th 665, 689 ["[T]estimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony"].) Thus, the admission of these statements does not implicate the Confrontation Clause.
To the extent that Perez's untrustworthiness claim can be construed as an objection to the statements' reliability under state law, we reject it. His only explanation of why Garcia-Morteo's statements were untrustworthy is a cursory statement that Garcia-Morteo "minimized her own involvement . . . [and] made innocuous statements about [Perez's] involvement at a time (Tijuana) when it was alleged only that he was 'touching.' " We do not follow his logic. In particular, we fail to see how Garcia-Morteo's statements could be construed as an attempt to minimize her own culpability, considering that she acknowledged the sexual abuse was ongoing and, if anything, tried to minimize Perez's culpability by suggesting Doe should be grateful to him. Nor do we understand why, even if we were to accept that Garcia-Morteo's statements in Tijuana were "innocuous," that such a characterization would have any bearing on their reliability. In any event, Garcia-Morteo made the statements to the victim under circumstances in which Garcia-Morteo had no reason to lie, and we therefore conclude the trial court did not abuse its discretion by determining that the statements were reliable.
Perez also complains that the trial court did not instruct the jury that it could consider his inability to cross-examine Garcia-Morteo in evaluating her statements, citing People v. Duke (1999) 74 Cal.App.4th 23. It is true that in Duke, which held that the admission of an accomplice's out-of-court statements did not violate Lilly, "the trial court instructed the jury that it could consider the fact that [the defendant] was not able to cross-examine [the accomplice] about his statements in assessing those statements." (Duke, at pp. 31-32.) Even if Duke retains any relevance after Crawford, however, the Court of Appeal's opinion observed merely that this instruction took "some of the sting out of the trial court's ruling" (Duke, at pp. 31-32), and nothing in the opinion suggests that the lack of such an instruction itself bears on an out-of-court statement's trustworthiness. In sum, Perez fails to show the statements were erroneously admitted.
F. The Trial Court Correctly Instructed the Jury on the Prosecution's Burden of Proof.
Defendants contend the trial court failed to properly instruct the jury that it could convict them of the three counts of aggravated sexual assault on a child and the three counts of lewd acts upon a child only if it found beyond a reasonable doubt that Doe was born on December 10, 1986. In particular, they claim the standard reasonable-doubt instruction was insufficient and the court erred by: (1) failing to instruct that convicting required a finding beyond a reasonable doubt that Doe's birthdate was December 10, 1986; (2) failing to instruct that the Mexican birth certificate and expert testimony did not necessarily prove Doe's birthdate beyond a reasonable doubt; and (3) instructing on proof of Doe's age by a preponderance of the evidence for purposes of the statute of limitations without clarifying that this standard did not apply to determining guilt. There was no error.
1. Additional facts.
During discussion of jury instructions, the trial court asked the parties how they wanted to address an issue involving the statute of limitations. The parties agreed that the prosecution began on October 2, 2012, at which time Penal Code section 801.1, subdivision (a) provided, "Notwithstanding any other limitation of time described in this chapter, prosecution for a felony offense described in [Penal Code] Section 261 . . . [or] 288 . . . that is alleged to have been committed when the victim was under the age of 18 years, may be commenced any time prior to the victim's 28th birthday." (Stats. 2007, ch. 579, § 40.) Thus, the two counts of rape under section 261, subdivision (a)(2) and the three counts of lewd acts under section 288, subdivision (a) were time-barred unless Doe's birthdate was October 3, 1984, or later.
Even if Doe had been born before this date, the two rape counts and one lewd-acts count that had accompanying GBI allegations would not be time-barred against Perez were the jury to find the GBI allegations true. (See Pen. Code, §§ 667.61, subds. (a), (c)(1), (8), (d)(6), (j)(1), (l), 799.)
After an extended discussion, the trial court concluded that it was appropriate to give the jury a special verdict form for a finding on Doe's age when the prosecution began. The court instructed the jury on this issue as follows:
You must return a separate finding as to the age of the alleged victim at the time the prosecution was begun and will receive a verdict form for this purpose; finding the question "True" or "Not True." [¶] The question of fact to be answered is: [¶] "On the 2nd of October, 2012 is it true that Jane Doe was under the age of 28 years old?"
Under the law a person becomes one year older as soon as the first minute of their birth[day] has begun. [¶] The People have the burden of proving by a preponderance of the evidence that Jane Doe was under the age of 28 on the 2nd of October 2012.
This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the People must prove that it is more likely than not that Jane Doe was under the age of 28 on the 2nd of October 2012. [¶] If the People have not met this burden, you must answer the question on the special verdict form "Not True."
The trial court also instructed the jury under CALCRIM No. 220 that a criminal defendant is "presumed to be innocent" and that "[t]his presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise." In turn, as to each of the charges at issue, the court instructed the jury that the People had to "prove" the elements of the crime, and, as to the GBI allegations, the court instructed the jury that "[t]he People have the burden of proving each allegation beyond a reasonable doubt." The jury found defendants guilty of all charges and enhancements and returned a "true" finding on the special verdict form.
2. Discussion.
The Fifth and Sixth Amendments "require the prosecution to prove to a jury beyond a reasonable doubt every element of a crime." (People v. Sengpadychith (2001) 26 Cal.4th 316, 324, italics omitted.) A trial court must "instruct the jury in a criminal case on the presumption of innocence in favor of the defendant and the prosecution's burden of proving guilt beyond reasonable doubt." (People v. Aranda (2012) 55 Cal.4th 342, 352-353.)
We review de novo whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) " 'When we review challenges to a jury instruction as being incorrect or incomplete, we evaluate the instructions given as a whole, not in isolation. [Citation.] "For ambiguous instructions, the test is whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction." ' " (People v. Moore (2011) 51 Cal.4th 1104, 1140.) We " ' "assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given," ' " and we interpret the given instructions " 'so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088 (Ramos).)
The Attorney General argues that defendants forfeited their claims of instructional error by failing to request additional or amplified instructions. Although it is true that defendants did not raise below the objections they now make and do not claim that the given instructions incorrectly stated the law, we will exercise our discretion to consider their claims on the merits. (See People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012; Ramos, supra, 163 Cal.App.4th at p. 1087.)
As a result, we need not address Garcia-Morteo's claim of ineffective assistance of counsel based on her trial counsel's failure to object below.
Defendants claim the trial court erred by failing to explicitly instruct the jury that it had to find beyond a reasonable doubt that Doe's birthdate was December 10, 1986. Initially, we reject the implication that the jury was required to find beyond a reasonable doubt that Doe had a particular birthdate. Convictions of aggravated sexual assault on a child and lewd acts upon a child require proof that the child was "under 14 years of age" and "under the age of 14 years" respectively, not proof of a specific birthdate (Pen. Code, §§ 269, subd. (a), 288, subd. (a)), and defendants do not offer any authority to the contrary. We construe defendants' claim to be that the trial court erred by not specifically instructing that the jury had to find beyond a reasonable doubt that Doe was under 14 at the time of the crimes.
Defendants do not discuss any case law in support of their position. We find Ramos instructive. The defendant in that case contended that "the trial court erred when it failed to instruct the jury that it must find every element of the charged offense . . . true beyond a reasonable doubt," language an earlier version of CALCRIM No. 220 had contained. (Ramos, supra, 163 Cal.App.4th at pp. 1087-1088.) This division rejected the claim, concluding that CALCRIM No. 220 "adequately explains the applicable law" because (1) the instruction informed the jury that "[w]henever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt" and (2) the trial court "went on to enumerate each of the elements of the charged crime . . . and stated that the People were obligated to prove each of those elements in order for [the] defendant to be found guilty." (Ramos, at pp. 1088-1089, italics omitted.)
Similarly, here the jury was informed that "[w]henever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise," and as to both types of offense at issue, the trial court instructed that the People "must prove that" Doe "was under the age of 14 years." As in Ramos, "[i]f we assume, as we must, that ' "the jurors [were] intelligent persons and capable of understanding and correlating all jury instructions . . . given . . ." [citation]' [citation], then we can only conclude that the instructions, taken as a whole, adequately informed the jury that the prosecution was required to prove each element of the charged crime[s] beyond a reasonable doubt," including Doe's age. (Ramos, supra, 163 Cal.App.4th at p. 1089.)
Defendants also contend the trial court erred by failing to instruct the jury that the Mexican birth certificate and the expert testimony did not necessarily prove Doe's birthdate beyond a reasonable doubt and that the birth certificate was merely presumed to be true. Again, defendants cite no case law in support of their argument, pointing only to sections 1451 and 1452 involving presumptions about the genuineness of acknowledgments of writings and seals. We reject this unsupported argument.
Finally, defendants claim that the jury instruction on the statute of limitations "undercut" the reasonable-doubt instruction because the jury was never told that it could use the preponderance-of-the-evidence standard to evaluate only the statute-of-limitations issue. We disagree with defendants that the two instructions conflicted. As discussed above, the trial court instructed the jury that the reasonable-doubt standard applied except when it instructed otherwise, and it instructed otherwise as to the statute-of-limitations issue. No reasonable juror would have concluded that a finding by a preponderance of the evidence that Doe was under 14 was sufficient to support a conviction for either of the types of offenses that required proof of her age. There was no instructional error.
G. No Cumulative Error Appears.
Lastly, defendants claim that their convictions should be reversed for cumulative error. As to all but one of defendants' claims, we have concluded that the trial court did not err. To the extent certain of Garcia-Morteo's statements from the police interview might have been improperly admitted, the error does not justify reversal for the reasons given. We therefore reject defendants' claim of cumulative error.
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.