Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F01330
SCOTLAND, P.J.
A jury convicted defendant Ralph Lopez of three counts of lewd and lascivious conduct with a 14-year-old child when defendant was at least ten years older than the child. (Pen. Code, § 288, subd. (c)(1).) The jury also found defendant had three prior convictions for lewd and lascivious behavior with a child, which qualified as “strikes” under the three strikes law. Defendant was sentenced to an aggregate term of 75 years to life in state prison.
On appeal, defendant contends the trial court committed instructional error. We disagree and shall affirm the judgment.
FACTS
Defendant and his wife are the parents of three daughters, whom defendant sexually molested in 1979, when they were eleven, nine, and six years of age. The molestations resulted in his three prior convictions for committing lewd and lascivious acts with children under the age of 14.
In 1991, one of the daughters whom defendant molested gave birth to E., the victim in this case. When E. was four months old, she began living with defendant and his wife, G., who eventually adopted E. Between December 2005 and February 2006, defendant, G., and E. shared a bed in one of the rooms of the three-bedroom house where they lived with other family members. On some occasions, defendant would pat E.’s feet while they were in bed and touch her vagina over her clothes. E. tried to awaken G. by poking her but was not successful. E. did not tell G. what defendant had done because she was afraid, but eventually said that defendant touched her feet. G. yelled at defendant and told him not to do it anymore, but his behavior continued.
In late January 2006, G. contacted the police after E. said that defendant hit her. Although E. told officers about all the times defendant had beaten her, she did not reveal he had touched her sexually. When defendant spent the night in jail, E. observed that “everything changed” with her family; G. forgave defendant for beating E. and allowed him to return home.
In early February 2006, E. told her cousin, S., that she wanted to live with S.’s family because defendant mistreated her and G. knew about the physical abuse. S. asked E. if defendant touched E. “in a nasty way.” E. replied that he had. She revealed this because she “couldn’t hold it in no more.” S. then told her father, T., who is defendant’s first cousin. T. asked if E. was sure she wanted to report the abuse “because we’re going to open a whole big thing.” E. said she did.
Officer Joey The beau investigated the report of sexual abuse and observed that E. seemed scared, nervous, and embarrassed. E. told him about the molestations, but it was difficult for her to share the details. She related that while G. was asleep, defendant would touch E.’s feet and then reach under the blankets and quickly touch her “private part” over her underwear. E. stated she had not reported the incidents earlier because she was scared and confused.
G. testified that E. told her only that defendant was touching E.’s feet and had not mentioned that he was touching her “private.” G.’s testimony was contradicted by Officer The beau, who testified G. told him that E. had reported defendant touched E.’s vaginal area on three occasions. G. also told The beau that she would not allow defendant back in the house when he was released from jail, that defendant would never see E. again, and that she would seek a restraining order if necessary. Despite her alleged support of E., G. visited defendant frequently in jail.
E. testified that her family was very large and that most of them supported defendant and were upset after he was arrested. When E. saw this, she “want[ed] to take it all back and stop it.” There was pressure on her not to tell anyone what defendant had done; but E. would not specify who was pressuring her and denied it was G. who was doing so. E. acknowledged that she told an aunt, a defense investigator, and G. that E. lied about the molestations because defendant had been mean to her. E. explained she “thought things would get better” if she recanted.
Tiffany Keller, an investigator for the prosecution, tried repeatedly to contact G. to arrange to speak with E. However, G. did not return Keller’s numerous phone messages and was otherwise uncooperative about arranging a meeting date. Keller finally succeeded in contacting G. and E. as they were seated in a car in their driveway. When Keller tried to arrange a meeting at the office, G., who would not make eye contact with Keller, turned to E. and said: “Why don’t you just tell her? Tell her right [n]ow.” E. looked at Keller with a “deer-in-the-headlights, glazed look” and just stared at Keller without responding. Keller asked G. what E. was going to say, and G. replied that E. would say she lied about the abuse, which did not happen. When Keller responded that she needed to get a statement from E. to that effect, G. would not set up a meeting.
The district attorney’s process server left three subpoenas for E. at G.’s home, but G. did not bring E. to testify. As a result, E. missed the preliminary hearing and earlier trial dates. G. explained that she kept E. away from Keller because she was worried that E. would get in trouble for lying about the abuse. G. denied trying to prevent E. from testifying against defendant, and denied evading subpoenas for E. According to G., she did not bring E. to testify because G. had medical appointments or forgot.
Immediately prior to trial, Keller learned that E.’s uncle was hiding E. so she would not be available testify. Two other investigators tracked down E.’s location and escorted her to trial.
In testifying at trial, E. initially denied that defendant had touched her inappropriately. During a lunch break, E. spoke with her support person, and then met with Keller in the presence of defense counsel and the prosecutor. E. explained that she had not testified truthfully when she said defendant did not touch her in her private area, and that she wanted to change her testimony because it was the right thing to do.
When the trial resumed, E. related that defendant touched her vagina over her clothing when she was sleeping in bed with him. She explained that she had lied earlier because she was afraid, but that she changed her mind over the lunch break because “it really happened.” According to E., she had been truthful when she told the police that defendant touched her inappropriately. Because she did not want people to be mad at her and thought everything would go back to normal, she told an aunt and the defense investigator that she had lied.
DISCUSSION
Defendant does not dispute the admissibility of the evidence that family members attempted to prevent E. from cooperating with the prosecution, and E. felt pressured to recant her accusation. This was relevant to E.’s credibility. (People v. Malone (1988) 47 Cal.3d 1, 30 [evidence a witness is fearful of retaliation relates to that witness’s credibility and is admissible]; People v. Warren (1988) 45 Cal.3d 471, 481 [evidence a witness is afraid to testify is relevant to the credibility of that witness]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1368-1369 [a “witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony”]; Evid. Code, § 780.)
Defendant believes, however, the evidence permitted the jury to infer that he authorized the family’s efforts to dissuade E. Thus, he argues, the trial court should have instructed the jury with CALCRIM No. 371, alternative C, which states: “If someone other than the defendant tried to create false evidence, provide false testimony, or conceal or destroy evidence, that conduct may show the defendant was aware of (his/her) guilt, but only if the defendant was present and knew about that conduct, or, if not present, authorized the other person’s actions. It is up to you to decide the meaning and importance of this evidence. However, evidence of such conduct cannot prove guilt by itself.” (See People v. Williams (1997) 16 Cal.4th 153, 200-201; People v. Hannon (1977) 19 Cal.3d 588, 597; People v. Perez (1959) 169 Cal.App.2d 473, 478.)
Defendant concedes he did not request this instruction and there is no established duty to give it sua sponte. Nonetheless, he asserts there was such a duty under the circumstances of this case. In his view, the judgment must be reversed because the trial court should have instructed with CALCRIM No. 371 to ensure that the jurors were apprised of the general principles of law applicable to the issues raised by the evidence.
We need not decide whether the trial court erred in failing to so instruct sua sponte. This is so because as we will explain, the absence of such an instruction did not prejudice defendant. Indeed, since the evidence that persons other than defendant sought to dissuade E.’s testimony was highly relevant to the assessment of her credibility, and nothing about the evidence suggested that defendant authorized those efforts, defense counsel may not have wanted the court to emphasize the evidence by giving a limiting instruction. (People v. Horning (2004) 34 Cal.4th 871, 909-910; People v. Freeman (1994) 8 Cal.4th 450, 495.) Because there was no evidence defendant influenced, let alone authorized, others to dissuade E. from testifying against him, the prosecutor never argued defendant exhibited a consciousness of guilt by authorizing attempts to hamper the prosecution. Rather, the case presented to the jury hinged on E.’s credibility, which was bolstered by defendant’s three convictions for molesting his young daughters. The court correctly instructed defendant’s prior convictions could be used to conclude he was disposed to commit sexual offenses and was likely to have committed the charged offense. (Evid. Code, § 1108; CALCRIM No. 1191.) The fact that G. stayed married to defendant after he had molested their daughters, and repeatedly visited him while he was in jail awaiting trial for molesting their granddaughter/adopted daughter, showed the dysfunctional pressure that young E. must have felt from G. to recant her accusation; and it explained why E.’s testimony vacillated. Under the circumstances, it is not reasonably probable the jury would have reached a more favorable verdict if the court had given CALCRIM No. 371. (People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment is affirmed.
We concur:
SIMS, J., ROBIE, J.