Opinion
E052860 Super.Ct.No. RIF10000462
01-11-2012
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ANGEL GOMEZ, Defendant and Appellant.
Raymond M. DiGuiseppe, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Charles C. Ragland and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge. Affirmed.
Raymond M. DiGuiseppe, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Charles C. Ragland and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Victim Jane Doe 2 was the sister of one of defendant's girlfriends. She testified that in 2005, when she was nine, defendant put his hands on her crotch area, over her clothes. Her credibility was diminished somewhat by the fact that she did not report the incident until 2008—when defendant and the by then ex-girlfriend were apparently in some kind of custody dispute—as well as by certain inconsistent statements.
Victim Jane Doe 1 was the niece of another one of defendant's girlfriends. She testified that in 2009, when she was seven, defendant took her hand and pushed it against her crotch area, over her clothes. Her credibility, too, was diminished somewhat by certain inconsistent statements.
A jury found defendant guilty on two counts of committing a lewd act on a child. (Pen. Code, § 288, subd. (a).) Defendant was sentenced to a total of eight years in prison, plus applicable fines and fees.
Defendant contends the trial court's failure to sever the two lewd act counts resulted in a fundamentally unfair trial. We find no error; even if the two counts had been tried separately, the evidence of each would have been cross-admissible at the trial of the other. Hence, we will affirm.
I
FACTUAL BACKGROUND
A. 2005: Victim Doe 2.
1. Doe 2's trial testimony.
Doe 2's older sister was defendant's ex-girlfriend; defendant and the ex-girlfriend had a daughter together.
Doe 2 testified that in 2005, when she was nine, defendant held her from behind, then put both hands on her "vagina," over her clothes. She was living in Lake Elsinore at the time.
Doe 2 described the part of her body that defendant touched as being in front, below the belly button, and covered by underwear; she also identified it as the part of the body that you use to go to the bathroom.
When asked to demonstrate where defendant put his hands, Doe 2 placed her hands across her lower abdomen; "the palms of her hands were even with her hip joints, . . . leaving a space in between her fingers over her vagina."
At trial, Doe 2 did not remember any other incidents in which defendant touched her inappropriately.
2. Doe 2's other statements.
Doe 2 and her family moved to San Jose. In March or April 2008, the ex-girlfriend left San Jose, taking defendant's daughter with her. On July 6, 2008, defendant came to San Jose looking for his daughter.
It was around the same time that Doe 2 first told anyone about the prior incident. She told her mother; her mother took her to a clinic; and, as a result, on July 7, 2008, the police interviewed Doe 2.
Doe 2's mother testified that Doe 2 told her about the incident on July 4, 2008. She took Doe 2 to the clinic that day, but because it was a Saturday, she did not contact the police until Monday.
She also testified, however, that Doe 2 told her about the incident, she took Doe 2 to the clinic, and the police responded to the clinic, all on the same day.
According to her mother, Doe 2 said that defendant had had sexual intercourse with her on three occasions. Doe 2 also told her that this had happened a year earlier— i.e., in 2007—rather than in 2005.
Doe 2 denied telling her mother that defendant had had sexual intercourse with her.
In 2010, Riverside police reinterviewed Doe 2. Consistent with her trial testimony, she told them that when she was nine, defendant grabbed her from behind, then put both hands on her vagina over her clothes.
However, she also told them about a second incident, also when she was nine. As she was seated on a bed, defendant stood between her legs and moved his crotch toward her vagina. She and defendant were both fully dressed.
3. Defense.
In 2010, when the police questioned defendant about Doe 2, he denied inappropriately touching her. He claimed that her allegations were fabricated to help his ex-girlfriend get custody of his daughter.
B. 2009: Victim Doe 1.
1. Doe 1's trial testimony.
As of 2009, defendant was dating Doe 1's aunt. On Christmas Eve, defendant stayed overnight with Doe 1's family. He and other adult members of the family were drinking.
At the time, Doe 1 was seven years old. She and her two sisters slept in the living room to wait for Santa. All three girls were in the same sofa bed. Defendant and Doe 1's aunt also slept in the living room, on a couch.
Doe 1 testified that around 6:00 a.m., she was awakened by defendant "pushing on [her]." He was lying next to her; his hand was pushing on her "private part." Mostly his hand was over her pajamas, but occasionally it went under. The pushing hurt.
Doe 1 described her "private part" as the part of her body that she uses to "go potty," as on her "front," and as normally covered by underwear. When she indicated the location, it was described for the record as "above [the] pubic bone, not between [the] legs."
Initially, Doe 1 testified that defendant did not touch her hands. However, when asked if he put her hand on her private part, she said he did. He also touched her private part with his own hand.
Defendant went back to the couch and lay down. As Doe 1 was getting up to "go tell," he came back, lay down next to her again, and pushed her back down. When he went back to the couch a second time, Doe 1 got up, went to her parents, and told them what had happened.
2. Other statements.
a. Doe 1's statement to her parents.
Doe 1's statement to her parents was consistent with her testimony at trial, except as follows.
According to Doe 1's mother, Doe 1 did not say that defendant had put his own hand on her private part. She also did not say that defendant went back to the couch twice.
According to Doe 1's father, Doe 1 said that defendant tried to touch her private part, but she grabbed his hand to stop him. He then said that he was just trying to cover her up.
Her mother examined her and found a slight redness near her pubic bone.
b. Defendant's statements to Doe 1's family.
Doe 1's father woke defendant up and asked him about Doe 1's allegations. Defendant said she must have been dreaming. He also said, "I cannot believe what's going on."
Doe 1's father told him to leave the house. Defendant told Doe 1's father to hit him. On the way out, defendant hit his own head against a wall several times. He then knelt down and hit his head on the sidewalk.
The aunt asked defendant what had happened. He said, "I don't know. I'm not sure."
After defendant left, Doe 1's parents let the children open their presents. Then, around 10:30 or 11:00 a.m., they called the police.
c. Defendant's statement to the aunt.
A couple of days later, defendant sent a text message to the aunt. He apologized and asked her family to forgive him.
d. Doe 1's statements in the RCAT interview.
On January 6, 2010, the Riverside Child Assessment Team (RCAT) conducted a forensic interview of Doe 1. Her statements in the interview were consistent with her testimony at trial, except as follows.
She said that defendant had used both hands. She added that "[h]e tried to put my hands on his private, but then I pulled it away." She said that she told defendant to stop, but he did not. She did not say that defendant touched her under her clothing or that defendant went back to the couch twice.
According to her mother, Doe 1 had not mentioned this. According to her father, however, she had said that defendant "was trying to get my hand and do the same thing to him."
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e. Defendant's statements in the pretext call.
On January 7, 2010, at the request of the police, the aunt made a "pretext" telephone call to defendant. Defendant said he had been drunk, and he did not remember what had happened. He did remember "push[ing]" or "hugg[ing]" Doe 1 to help her cover herself up. He might have touched her "accidentally[,] close to her legs." He added that he "lay down there but afterwards I woke up and I said[,] what am I doing here . . . ."
The aunt suggested, "[M]aybe you touched her vagina because you thought that it was mine?" Defendant replied, "[I]t's a possibility[,] maybe[,] I don't know."
f. Defendant's statements to the police.
On January 12, 2010, the police interviewed defendant. Once again, he said he had been drunk and did not remember what had happened. He said that he thought he had gone to bed with the aunt; when he woke up, however, he realized that he was in bed with Doe 1. He touched her hand because he thought she was the aunt; whenever he slept with the aunt, he would grab her hand. Doe 1 woke up and got scared. He said, "I'm sorry," pushed her back down, covered her up, and told her to go back to sleep.
When the police asked defendant if he put Doe 1's hand on her vagina and moved it around, he said he "probably" did. However, he denied having any sexual intent.
II
FAILURE TO SEVER
Defendant contends the trial court's failure to sever the two counts resulted in a fundamentally unfair trial.
A. Additional Factual and Procedural Background.
Immediately before trial, defense counsel filed a motion to sever. She argued that trying the two cases together would violate due process. She also argued that cross-admitting the evidence of the two charges would violate Evidence Code section 352, as well as due process.
The prosecutor argued that the evidence was cross-admissible under Evidence Code section 1108 and also under Evidence Code section 1101, subdivision (b) to show absence of mistake. She also argued that the evidence was not unduly prejudicial because the two incidents were similar.
The trial court denied the motion.
B. Analysis.
Defendant concedes that, in light of the evidence that was before the trial court when it ruled on the motion to sever, it was not error to deny the motion. He argues, however, that in light of the evidence actually produced at trial, the denial of the motion resulted in a trial that was fundamentally unfair, in violation of due process.
By statute, multiple counts may be tried together as long as they are either "connected together in their commission" or "of the same class." (Pen. Code, § 954.) However, even when these "threshold requirements" are met, "[s]everance may . . . be constitutionally required if joinder of the offenses would be so prejudicial that it would deny a defendant a fair trial. [Citation.]" (People v. Musselwhite (1998) 17 Cal.4th 1216, 1243-1244.) The denial of a pretrial motion to sever even if correct at that time can nevertheless be reversed on appeal if joinder was so grossly unfair as to deny due process. (People v. Hartsch (2010) 49 Cal.4th 472, 494.)
"Because consolidation ordinarily promotes efficiency, the law prefers it." (People v. Ochoa (1998) 19 Cal.4th 353, 409.) Accordingly, "'in the context of properly joined offenses, "a party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial."' [Citations.]" (People v. Soper (2009) 45 Cal.4th 759, 774.)
"'"The relevant factors are whether (1) the evidence would be cross-admissible in separate trials, (2) some charges are unusually likely to inflame the jury against the defendant, (3) a weak case has been joined with a strong case, or with another weak case, so that the total evidence may unfairly alter the outcome on some or all charges, and (4) one of the charges is a capital offense, or joinder of the charges converts the matter into a capital case." [Citation.] "[I]f evidence underlying the offenses in question would be 'cross-admissible' in separate trials of other charges, that circumstance normally is sufficient, standing alone, to dispel any prejudice and justify a trial court's refusal to sever the charged offenses." [Citations.] . . . .' [Citation.]" (People v. Scott (2011) 52 Cal.4th 452, 469-470.)
Here, under Evidence Code section 1108, subdivision (a), the evidence was cross-admissible to show the propensity to commit a sexual offense, subject only to Evidence Code section 352. "The similarity of the offenses . . . is relevant to the evaluation of whether the probative value of the evidence outweighs its prejudicial effect . . . . [Citation.]" (People v. Lewis (2009) 46 Cal.4th 1255, 1285.) Both victims were about the same age. They were both living in the household of a woman whom defendant was dating at the time. Both crimes appeared to be impulsive crimes of opportunity. In both instances, defendant touched the victim's genital area over her clothes. Thus, they were strongly probative evidence of propensity.
Defendant argues that Doe 2 had given varying accounts of his acts. Nevertheless, at trial, she testified to a lewd act that was similar to defendant's lewd act on Doe 1. Moreover, when the Riverside police reinterviewed her in 2010, she described essentially the same lewd act. Thus, there was evidence which, if believed, showed two similar incidents.
Defendant argues that both victims' testimony lacked credibility and hence lacked probative value. A court's assessment of credibility, however, simply is not part of the Evidence Code section 352 balancing test; credibility must be left up to the jury to determine. (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1009-1013; accord, People v. Cudjo (1993) 6 Cal.4th 585, 610; People v. Alcala (1992) 4 Cal.4th 742, 790-791.)
Defendant relies on People v. Chapman (1975) 50 Cal.App.3d 872, which stated: "[I]n applying Evidence Code section 352, the trial court in weighing 'probative value' necessarily considers, among other things, credibility of the witnesses who testify to the proffered evidence." (Id. at p. 881.) Cudjo and Alcala, however, implicitly overruled Chapman on this point. (See Vorse v. Sarasy, supra, 53 Cal.App.4th at pp. 1011-1013.)
The evidence was not particularly inflammatory. Defendant's conduct was on the mildest end of the broad continuum of conduct constituting a lewd act on a child.
Defendant argues that the prosecutor used two weak cases to shore each other up. For purposes of Evidence Code section 352, however, there is absolutely nothing wrong with this. "'"'"In applying [Evidence Code] section 352, 'prejudicial' is not synonymous with 'damaging.'" [Citation.]' [Citation.] [¶] The prejudice that [Evidence Code] section 352 '"is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." [Citations.] ". . . . [Citation.]" [Citation.]' [Citation.]"'" (People v. Scott, supra, 52 Cal.4th at p. 491.) The fact that each incident had significant probative value with respect to the other was what gave it probative value and made it admissible, not prejudicial.
Admittedly, for purposes of joinder, it can be problematic if a weak case is joined with another weak case. However, cross-admissibility dispels any possibility of prejudice from this. Even if the cases were tried separately, evidence of one would always come in at the trial of the other; thus, there is no point to severing the trials. That was the case here.
For the sake of completeness, we note that the evidence was cross-admissible not only under Evidence Code section 1108, but also under Evidence Code section 1101, subdivision (b), to show absence of mistake or accident. However, this does not affect the analysis under Evidence Code section 352.
Finally, defendant argues that any prejudice was heightened by the fact that the jury was not specifically instructed that propensity evidence is insufficient, standing alone, to support a conviction. (E.g., CALCRIM No. 375.) Significantly, he does not argue that the failure to give such an instruction was reversible error in itself. He cannot, because the trial court has no obligation to give such an instruction, at least in the absence of a request. This is because the same point is adequately covered by the standard instructions on the elements of the offense, on the union of act and intent, and on proof beyond a reasonable doubt, all of which were given in this case. (People v. Loy (2011) 52 Cal.4th 46, 72-76.) Defendant cannot show that the failure to give a more specific instruction was prejudicial.
We therefore conclude that the trial court properly denied the motion to sever and the resulting trial was not unfair.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P.J.
We concur:
KING
J.
CODRINGTON
J.