Opinion
D057975
12-06-2011
THE PEOPLE, Plaintiff and Respondent, v. JESUS LOPEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. INF056959)
APPEAL from a judgment of the Superior Court of Riverside County, David B. Downing, Judge. Affirmed.
A jury convicted Jesus Lopez on five counts of committing lewd or lascivious acts on a minor under the age of 14 (counts 1-3 & 5-6) and one count of sexual penetration with a foreign object, as a lesser included offense of aggravated sexual assault on a child under the age of 14 (count 4). Lopez appeals, contending: (1) the trial court erred in denying his motion for a new trial; (2) the trial court erred in admitting the victim's forensic interview; (3) substantial evidence does not support the jury's verdict on count 4; and (4) the trial court improperly instructed the jury with CALCRIM No. 1190, which provides that a conviction for a sexual assault crime may be based on the testimony of the victim alone. We find Lopez's arguments unavailing and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People's Case
Lopez's daughter, J., was 20 years old at the time of trial. From the time she was six years old, Lopez often touched her inappropriately on her vagina and buttocks. Some of these incidents were over J.'s clothing and others were "skin-to-skin." J. never thought she could tell Lopez to stop because "he was [her] dad" and "saying 'no' was not an option."
J. provided details of multiple incidents when Lopez touched her inappropriately. When J. was seven years old, Lopez touched her vagina while they were alone in the house. At that age, the molestation "happened a lot" and often occurred in the bathroom. On Halloween, when J. was eight years old, Lopez touched her under the skirt of her gypsy costume. At nine years old, the molestation changed in the way Lopez touched J. as he started using his finger inside her vagina. J. recalled one incident when she was in the bathroom getting ready for school and Lopez approached her from behind, slid his hand down her pants through her underwear and put his finger in the inner lips of her vagina. She described the incident as "a feeling [she] had never experienced before. It was uncomfortable. It was weird." She also said that "[i]t was just a hurt feeling."
After taking a sexual harassment class in the fifth grade, J. told Lopez to stop touching her. Lopez stopped until she was 13 years old. At that time, he started making comments about J.'s developing breasts and asked to see and touch them. Lopez touched J.'s breasts from outside of her clothing. He also talked to J. about sex often, offered to watch pornographic movies with her, and told her that if she wanted a sexual experience it would be better to have it with him because he was her dad and would know what to do. According to J., the molestation became a "habit again."
When Lopez approached J., she sometimes tried to move away but often stayed because she "had nowhere to run to" and "knew it was going to happen eventually." J. was afraid that if she told her father to stop, nobody would believe her and that it would break her family apart. On some occasions when J. was a teenager, Lopez grabbed her arm to stop her from moving away when he was trying to touch her inappropriately.
In the eighth grade, J. told her mother that Lopez had been touching her inappropriately. After Lopez told J. nobody would believe her, she told her mother she lied about the allegation. J.'s mother, however, had witnessed an incident while J. was in high school where Lopez inappropriately tried to grab her buttocks.
At the age of 16, J. took $2,000 or $3,000 from her parents and ran away from home due to problems with Lopez. She returned home after about a week and a half and gave the remaining money back to her parents. J. ran away a second time when she was 17 years old. This time she took $400 or $500 and stayed with her friend, T.H. While at T.H.'s house, J. called her mother. J.'s mother responded by saying that she would call the police and get T.H.'s parents in trouble if J. did not return home. J. decided to call the police herself and reported that Lopez had inappropriately touched her.
The police interviewed J. and arranged for her to make a pretext call to Lopez. During the pretext call, which was made with detectives listening, J. asked Lopez why he had to touch her. Lopez responded by making statements, such as "[b]ecause you wanted to!" and "[w]ouldn't you put yourself there first and then everything started from there? When you didn't want to any more, no more." When J. accused Lopez of recently touching her, Lopez initially denied it and then said, "Ah, but you wouldn't say anything." He also said, "Okay but if you don't want to anymore, no more and period."
Detective Jorge Pinon interviewed Lopez. During that interview, Lopez stated that he may have touched J. "underneath" with his fingers when she was eight years old. He claimed, however, that it happened while they were playing. B. The Defense
The defense presented evidence that J. was untruthful. Although J. previously testified that she was a student at UCLA majoring in accounting, when pressed by the defense, she revealed that she merely took classes on the UCLA campus through a Job Corps program. J. did not recall where on the UCLA campus she took classes or how many times she went there.
T.H. testified that prior to running away, J. told her that she wanted to buy drugs to plant in Lopez's truck and then call the police to get him in trouble. J. also informed T.H. that her mother was employed as a manager; however, T.H.'s mother later learned from J.'s mother that this was not true.
DISCUSSION
I. Denial of Motion for New Trial
A. Background
Lopez moved for a new trial pursuant to Penal Code section 1181, subdivision (6), contending that the evidence was insufficient to sustain the jury's verdict. The motion was supported by a declaration from Lopez's counsel, which stated that several jurors informed him they did not find J. credible and "[t]hey did not believe anything she alleged as a teenager."
At the hearing on the motion, the court stated that it struggled with its decision because it "found [J.] . . . not credible at all on most everything, not everything, but most everything . . . ." The court also noted that it was troubled because although Lopez was born in California, his interview and the pretext call were in Spanish. After considering the evidence and acknowledging that it had to weigh the credibility of the witnesses, the court concluded that "on balance, it would appear . . . that [ ] Lopez molested [J.] over a period of time." B. Analysis
Lopez argues the trial court erred in denying his motion for a new trial. He contends the trial court committed error because there was substantial evidence that J. was not credible and, absent her testimony, the evidence was insufficient to find him guilty. Lopez further contends the trial court improperly considered that he was interviewed in Spanish. We reject these contentions.
"While it is the exclusive province of the jury to find the facts, it is the duty of the trial court to see that this function is intelligently and justly performed, and in the exercise of its supervisory power over the verdict, the court, on motion for a new trial, should consider the probative force of the evidence and satisfy itself that the evidence as a whole is sufficient to sustain the verdict." (People v. Robarge (1953) 41 Cal.2d 628, 633.) Importantly, in considering a motion for new trial, a trial court is "guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. [Citation.] The trial court 'should [not] disregard the verdict . . . but instead . . . should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict.' [Citation.]" (People v. Davis (1995) 10 Cal.4th 463, 524 (Davis).) Just as importantly, in reviewing a trial court's ruling on a motion for new trial, we are bound by the principle: "A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. ' "The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." ' [Citation.]" (Ibid.)
Here, Lopez contends the trial court should have granted his motion because J. was not a credible witness and, absent her testimony, the evidence was insufficient to establish his guilt. However, the record establishes that the trial court applied the proper standard in denying Lopez's motion. It independently considered J.'s credibility and weighed the evidence. The trial court noted that it "found [J.] . . . not credible at all on most everything, not everything, but most everything . . . ." The court also carefully considered the evidence, including Lopez's interview with Detective Pinon and details provided by J. regarding the molestation. After a lengthy discussion regarding J.'s credibility and the evidence, the court concluded that Lopez molested J. over a period of time.
The trial court is in a far better position than this court to assess a witness's credibility. Thus, we assume that although the trial court found J. not credible on most things, it determined the evidence as a whole was sufficient to sustain the verdicts. We agree with the trial court that there was sufficient evidence in the record, including J.'s detailed accounts of the abuse, the pretext call, and Lopez's statements to Detective Pinon, to establish Lopez's guilt. Absent a manifest and unmistakable showing of abuse of discretion, we will not disturb the trial court's ruling. (Davis, supra, 10 Cal.4th at p. 524.) Lopez did not make that showing in this case.
Likewise, we find no merit to Lopez's contention that the trial court improperly considered that he was interviewed in Spanish in deciding to deny his motion for a new trial. Although the court stated that it was troubled because Lopez was interviewed in Spanish, which made the court's job more difficult, the record is clear that the court reviewed the interview in detail and assessed the probative value of the evidence. There is nothing in the record suggesting that the trial court construed the interview improperly because it was in Spanish.
In sum, on the record before us, we conclude the court acted within its discretion in denying Lopez's motion for a new trial.
II. Admission of Forensic Interview
A. Background
During the investigation, Denise Rodriguez, a forensic interviewer, conducted a videotaped interview with J. At the interview, J. relayed details of the molestation that were largely consistent with her trial testimony. She stated that Lopez began touching her inappropriately in kindergarten or the first grade. The first time it happened, Lopez put his hand down her underwear. J. stated that the molestation happened often until she threatened to tell her mother when she was in the fifth grade. It resumed, however, when she was 13 or 14 years old.
J. described incidents when Lopez touched her vagina with his hand and later progressed to trying to put his finger inside her vagina. She also stated that when she was teenager, Lopez touched her breasts, offered to watch pornographic movies with her, and told her to come to him when she was ready to "do it" so that he could "show [her] how it's done."
Toward the end of the cross-examination of J., the prosecution requested to play the entire videotaped interview for the jury, arguing that it was admissible under Evidence Code sections 1235 and 1236 because it contained prior consistent and inconsistent statements. (Undesignated statutory references are to the Evidence Code.) Defense counsel objected, arguing that while there may be some prior consistent and inconsistent statements in the interview, playing the whole interview was not justified. The trial court overruled the defense's objection, stating that the interview "is full of consistent statements, inconsistent statements, and the rule of completeness is such the jury should hear it all . . . ." Jurors viewed the entire videotaped interview and were provided with a transcript of it. B. Analysis
Lopez argues the trial court erred in allowing the jury to view the videotape of J.'s forensic interview. We agree that the entire interview was not admissible, but nevertheless conclude that any error in its admission was harmless.
Generally, a prior statement that is consistent with trial testimony is inadmissible hearsay if offered to support the trial testimony. (§§ 791, 1236; see People v. Cook (2007) 40 Cal.4th 1334, 1357.) However, an exception to this rule applies if there has been a claim that a witness's trial testimony "is recently fabricated or is influenced by bias or other improper motive, and the [prior consistent] statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen." (§ 791, subd. (b), italics added.) Under such circumstances, the prior consistent statement is relevant to establish that the current statement is truthful.
The prosecution contends this hearsay exception applies because "[d]efense counsel's questions implied both directly and indirectly that [J.] falsely reported being molested by [Lopez] as cover for having taken money from her parents and running away and as a way of getting back at [Lopez] for his harsh discipline and control." However, J.'s forensic interview took place after she ran away from home and after she endured her father's discipline and control. Thus, the hearsay exception for prior consistent statements does not apply because J.'s alleged motive for fabrication existed at the time of the forensic interview. In order for the statements to be admissible, they must have been made before the motive for fabrication. (§ 791, subd. (b).)
The prosecution also argues the interview was admissible under section 1235 because it contained prior inconsistent statements. This argument is unavailing, especially because the prosecution fails to identify any statements in the interview that were inconsistent with J.'s trial testimony and explain why the entire interview was admissible as a result of these inconsistencies. Under section 1235, a prior inconsistent statement of a witness is admissible to impeach the witness and to prove the truth of the matters asserted therein. (Clifton v. Ulis (1976) 17 Cal.3d 99, 103104.) A foundational requirement of this hearsay exception is that the evidence offered is inconsistent with the witness's subsequent testimony. (Id. at p. 104; § 1235.) The prosecution has not offered and we have not found statements in the forensic interview that were necessarily inconsistent with J.'s trial testimony. Thus, the forensic interview was not admissible under section 1235.
Even if there were particular statements in the interview, however, that were admissible under sections 1235 or 1236, this would not justify playing the entire interview for the jury. The trial court referred to and the prosecution cites to the "rule of completeness" set forth in section 356 to suggest that it was proper to admit the entire forensic interview. Section 356 provides: "Where part of a[] . . . conversation . . . is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party . . . ." (Italics added.) According to this rule, '''"[t]he opponent, against whom a part of an utterance has been put in, may in his turn complement it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance." [Citation.]' " (People v. Parrish (2007) 152 Cal.App.4th 263, 269, fn. 3.) Section 356 "makes admissible 'only . . . such parts of . . . [a] writing as are relevant to the part thereof previously given in evidence.' " (Benson v. Honda Motor Co. (1994) 26 Cal.App.4th 1337, 1350, citing Assem. Com. on Judiciary com. to Evid. Code, § 356, 29B West's Ann. Evid. Code (1966 ed.) p. 249.)
Section 356 generally applies where one party seeks to introduce only portions of a conversation or document and the adverse party consequently seeks the entirety of the same for purposes of context, clarification, or explanation. This section does not apply in this case because here the prosecution initially requested to play the whole interview. It was not the defense that demanded to play the interview to make the entirety of the conversation understood. Further, the prosecution did not request to play the entire interview to give context to or explain testimony elicited by the defense. Accordingly, the whole forensic interview was not admissible under section 356.
Having determined that the trial court erred in admitting the entire forensic interview, we must next consider whether that error requires reversal. Error in the admission or exclusion of evidence is tested for prejudice under the People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) harmless error test. (See People v. Alcala (1992) 4 Cal.4th 742, 790-791.) Under the Watson test, the trial court's judgment may be overturned only if "it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error." (Watson, supra, 46 Cal.2d at p. 836.) Similarly, "the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair." (People v. Partida (2005) 37 Cal.4th 428, 439 (Partida).) " 'Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must "be of such quality as necessarily prevents a fair trial." [Citations.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.' [Citation.] 'The dispositive issue is . . . whether the trial court committed an error which rendered the trial "so 'arbitrary and fundamentally unfair' that it violated federal due process.(People v. Albarran (2007) 149 Cal.App.4th 214, 229-230, fn. omitted.) "Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test." (Partida, supra, 37 Cal.4th at p. 439.)
Despite our conclusion that the court erred in admitting the entirety of the forensic interview, we conclude the evidence was not of such a nature that it rendered the trial fundamentally unfair and find that any error was harmless. Although they did not meet the requirements for admissibility, J.'s statements at the interview were largely consistent with her trial testimony and did not prevent a fair trial. Given J.'s testimony at trial and Lopez's damaging statements during the pretext call and his interview with Detective Pinon, it is not reasonably probable the jury would have found him innocent of the charged conduct if the entire interview had not been admitted. Accordingly, the error was harmless.
III. Sufficiency of the Evidence
Lopez argues there is insufficient evidence to support his conviction on count 4 because there was no evidence that he used force, violence, duress, menace, or the fear of immediate and unlawful injury in the commission of the offense. We conclude the record supports Lopez's conviction on count 4.
When a criminal defendant challenges the sufficiency of the evidence, we must review the record in the light most favorable to the judgment to determine whether the record discloses substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) Although we must ensure that the evidence is reasonable, credible and of solid value (People v. Johnson (1980) 26 Cal.3d 557, 576-578), we leave it to the jury to determine the credibility of witnesses and the truth or falsity of the facts upon which that determination depends (People v. Barnes (1986) 42 Cal.3d 284, 303). The testimony of a single witness, if believed, is sufficient to prove any fact. (§ 411; People v. Cudjo (1993) 6 Cal.4th 585, 608-609.)
The jury convicted Lopez of violating Penal Code section 289, subdivision (a), which provides that it is unlawful for any person to commit "an act of sexual penetration when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." The term "duress," has long been described as a " direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have been submitted.' " (People v. Cochran (2002) 103 Cal.App.4th 8, 13 (Cochran), italics added, disapproved on other grounds in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12; People v. Leal (2004) 33 Cal.4th 999, 1004-1005.) The total circumstances should be considered, including the ages of the defendant and the victim, their relative sizes and the nature of their relationship. (Cochran, supra, at p. 14; People v. Senior (1992) 3 Cal.App.4th 765, 775.) "The fact that the victim testifies the defendant did not use force or threats does not require a finding of no duress; the victim's testimony must be considered in light of her age and her relationship to the defendant." (Cochran, supra, at p. 14.)
Lopez claims the requirements of Penal Code section 289, subdivision (a), were not met because J. testified that he did not use force when he penetrated her vagina, he did not tell J. that his marriage would break up if she reported the molestation, and J. did not testify that any discipline was associated with the sexual activity. However, there was substantial evidence of duress. J. was approximately nine years old at the time of the offense charged in count 4. Lopez approached her from behind when she was alone in the bathroom, slid his hand down her pants through her underwear and put his finger in the inner lips of her vagina. J. described the incident as a "hurting feeling." This happened after numerous other events of inappropriate touching from the time J. was five or six years old. J. saw Lopez as an authority figure and did not believe she could tell him to stop molesting her.
Although Lopez did not make a direct threat of force, violence, danger, hardship or retribution, there was sufficient evidence from which the jury could have inferred a threat. J.'s young age at the time of the molestation, Lopez's position of authority over her, the manner in which Lopez approached her while she was alone, and J.'s fear that she could not tell him to stop, are all significant to a finding of duress. The totality of this evidence is sufficient to support Lopez's conviction on count 4.
IV. Alleged Instructional Error
Lopez contends the judgment must be reversed because the trial court violated his rights to a jury trial, to present a defense, to confront witnesses and to due process by instructing the jury with CALCRIM No. 1190. The challenged instruction allows a jury to convict on a sexual assault crime based on the testimony of the victim alone.
Lopez acknowledges that the Supreme Court rejected his constitutional arguments with respect to CALJIC No. 10.60, an instruction similar to CALCRIM No. 1190, in People v. Gammage (1992) 2 Cal.4th 693, 700-702. Although Lopez maintains Gammage was wrongly decided, he also concedes we are bound by its holding under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. Accordingly, we conclude the trial court neither erred nor violated Lopez's constitutional rights by instructing the jury with CALCRIM No. 1190.
DISPOSITION
The judgment is affirmed.
MCINTYRE, J. WE CONCUR:
NARES, Acting P. J.
IRION, J.