Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura, No. 2007032757, Steven E. Hintz, Judge
Sharon M. Jones, under appointment by the Court of Appeal for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Zee Rodriguez, Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
COFFEE, J.
Arturo Arita Mendez was convicted by jury of one count of committing an unlawful sex act with a child under age 10 (Pen. Code, § 288.7, subd. (b); count 1) and two counts of committing a lewd act upon a child (§ 288, subd. (a); counts 2 and 3)). The trial court sentenced him to 10 years in state prison, plus 15 years to life. It imposed an indeterminate term of 15 years to life as to count 1, the upper term of 8 years as to count 2, and one-third the midterm of 2 years as to count 3.
All statutory references are to the Penal Code unless otherwise stated.
Appellant contends the trial court erred in admitting the victim's statements, that the prosecutor committed prejudicial misconduct, and that his sentence constitutes cruel and unusual punishment. We affirm.
FACTS
Pre-Trial Proceedings
The victim, age 4, was molested by appellant. She reported the abuse to her mother and made a statement to a sexual assault examiner, Sergeant Barbara Payton (Payton). Prior to trial, the court held a hearing to determine whether the victim's statement had sufficient indicia of reliability to make it admissible under Evidence Code section 1360. The court heard Payton's testimony, and ruled the statement was admissible.
The following day, the court held a hearing to determine if the victim was competent to testify. The victim testified as to her age and that she was in the first grade. She understood colors, could count, place objects where directed, and understood body parts. The victim could distinguish between a truth and a lie. She recalled speaking with Payton, and had told her the truth. She remembered that appellant had put "his private in [her] mouth." The trial court ruled that she was competent to testify.
Trial Testimony
The victim lived in a house with her mother and mother's boyfriend Eduardo, and Eduardo's brother. Approximately 15 other people also lived in the house. The victim and her mother had lived there for six or seven months.
On August 25, 2007, the victim was in her mother's room. The victim was acting "kind of strange" and was upset the whole morning. She told her mother that the previous evening, she was sitting on the couch watching cartoons. "Enrique" sat down next to her and grabbed her hand and put it down his pants. He started moving it around on his privates. He then stuck his hand inside her underwear and started wiggling his fingers on her privates. Appellant pushed her head down and put her mouth on his penis. The victim later saw appellant in the kitchen, and identified him to her mother as the man who touched her privates. The victim's mother called the police.
Payton interviewed the victim the day after the offense. The initial interview was audiotaped and a second interview was videotaped. The audiotape of the first interview was played for the jury. Payton first established that the victim knew her name and age. She could identify colors and was able to name colored crayons. She also understood locations--whether a crayon was behind Payton's back, under a table, or on top of her head. Although the victim was able to correct Payton when she picked up the wrong colored crayon, she was unable to articulate that Payton's statement was untruthful. The victim was able to identify body parts, including her breasts and "private areas."
The victim told Payton that Enrique, with whom she lived, "touched [her] private" area. Payton reported that the victim drew a bird's eye view of the head of a penis. She drew a circle, with a little circle inside of it. Little lines came out of the circle all the way around it. The victim demonstrated what had happened with a large stuffed tiger with a very long tail. She moved the tail in a circular motion and stuck it into the tiger's mouth. The victim told Payton that appellant made her put his private in her mouth. Payton drew a picture with a pair of shorts and the victim drew on it, indicating the location of appellant's penis. The victim first described it as black, and then said it was brown.
The victim said that appellant first made her put her hand on his penis, and then in her mouth. She demonstrated this by putting both hands behind her head and pushing her head forward and down. She also said appellant reached inside her pants and wiggled his fingers on her vagina. Payton described the victim as "[a] very friendly, talkative, articulate, little girl." The victim's trial testimony differed from the interview and mother's testimony in one respect. She said that appellant had taken her into a closet when he put his private into her mouth.
Sergeant Luis Alvarez (Alvarez) is a sexual assault investigator with the sheriff's department. He interviewed appellant after the offense. Appellant indicated he preferred to be called Enrique. He admitted committing the offense and said it occurred while he and the victim were sitting on the couch and she was watching cartoons. He began talking to her about different body parts and began massaging her. Appellant told Alvarez that he put his hand inside the victim's underwear and touched her vagina. He had the victim rub his exposed penis for 20 to 30 seconds. Then she kissed both sides of his penis. Appellant repeatedly told Alvarez that he was embarrassed and ashamed about what had occurred, and that it would never happen again.
Appellant testified in his own defense. He said the victim was confused about who had touched her because someone with the same name and appearance lived in the house. He also thought she was lying because the house had no closet. Appellant denied all the statements he made to Alvarez.
DISCUSSION
Admission of Minor's Statement
Appellant claims the trial court erred in admitting the victim's interview with Payton, contending that it was unreliable hearsay.
Evidence Code section 1360 permits the introduction of a hearsay statement by a victim under age 12, relating to child abuse if: "the time, content and circumstances of the statement provide sufficient indicia of reliability" (id., subd. (a)(2)) and the child testified or there is independent corroboration of the abuse. (Id., subd. (a)(3)(A) & (B).) Admission of evidence under Evidence Code section 1360 is reviewed for an abuse of discretion. However, we must independently review the trial court's findings on reliability. (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1367; People v. Eccleston (2001) 89 Cal.App.4th 436, 445-446.)
Four factors are relevant to a trial court's determination of the reliability of hearsay statements made by a child witness in sexual abuse cases: (1) spontaneity and consistent repetition; (2) the mental state of the declarant; (3) use of terminology unexpected of a child of a similar age; and (4) lack of a motive to fabricate. (Idaho v. Wright (1990) 497 U.S. 805, 821-822.) The California Supreme Court has held that the trial court's determination is not limited to consideration of the factors in Idaho v. Wright. Rather, "any factor bearing on reliability may be considered." (In Re Lucero L. (2000) 22 Cal.4th 1227, 1250.)
The first prong of Evidence Code section 1360 was met because the timing, content and circumstances of the victim's statement indicated that it was reliable. The victim made the statement spontaneously and consistently repeated it. The morning after the offense, she told her mother that appellant grabbed her hand and put it on his penis. She said that appellant put his hand inside her underwear and wiggled his fingers on her vagina. She also told her mother that appellant put his penis in her mouth. The victim repeated these events to Payton during two interviews; the first was audiotaped and the second was videotaped. Two years later, the victim recited the same events at trial. The only fact that differed was the victim's testimony that appellant had taken her into a closet before he put his penis in her mouth. In all other respects, her statements were entirely consistent.
As to the remaining three factors, the victim's mental state was normal when Payton interviewed her. She described the victim as talkative and articulate. The victim used terminology consistent with language used by other four-year-old children. She used the word "private" when referring to vagina and a penis and said that appellant's penis tasted "bad" when he put in her mouth. She was unable to describe anything in more specific language. However, a four-year-old will generally not have knowledge of oral sex. Although the words she used to describe the offense are commonly used by four-year-old children, the statement that a man put "his private in my mouth" is completely unexpected from a child of the victim's age. Finally, there was no evidence that the victim had a motive to fabricate. No evidence was presented that she had negative feelings toward appellant, or that she had been coached.
The victim's account of events was corroborated by appellant's own statement to Alvarez that that he had the victim rub his penis, he touched her vagina and put his penis in her mouth. He said it happened while they were sitting on the couch watching television. Appellant admitted that he was ashamed and it would never happen again. The victim's statement was properly admitted at trial.
Prosecutorial Misconduct
Appellant argues that during his testimony and closing argument, the prosecutor engaged in prejudicial misconduct requiring reversal. He asserts that, during cross-examination, the prosecutor asked appellant if he had ever told his attorney to tell the prosecutor "look, you got the wrong guy." He also claims that the prosecutor made remarks during final argument and rebuttal that constituted an improper comment on appellant's right to counsel and infringed upon the attorney-client privilege.
Appellant further asserts that the prosecutor attempted to inflame the jury by implying that he chose to go to trial to further victimize the victim. Appellant notes that "the unfairness of such an argument was compounded by the fact" that defense counsel could not disclose to the jury that appellant chose to go to trial because he faced the prospect of a life sentence.
During cross-examination, the prosecutor asked appellant if he had been waiting to stand trial for two years. Appellant was uncertain of the time period. The prosecutor asked, "[b]etween the time of this incident and today not once did you ever tell your attorney to tell me, look, you got the wrong guy?" Defense counsel made an objection, which the trial court sustained, saying "[i]t's inappropriate. [¶] It's just wrong." The court instructed the jury to disregard the question.
At the conclusion of cross-examination, defense counsel moved for a mistrial, arguing that the prosecutor had committed misconduct. She argued that by inquiring into what appellant said to defense counsel, it "shift[ed] the burden of proof, " because it was a comment on appellant's silence. The court responded that "it was a bad question and made all the wors[e] by the fact that it wasn't necessary at all." The court stated that it had instructed to the jury to disregard the question. "And the implicit smack in the face in front of the jury is enough sanction for now. The motion for a mistrial is denied."
During closing argument, the prosecutor stated that "[w]e're here because the defendant stole the innocence of a four-year-old child. That theme has run its current throughout this entire case. When that sweet little girl came in and testified in front of you, that was further evidence of the defendant's victimization." Defense counsel objected, and the court responded, "[t]he act of having a trial is not evidence of anything." The prosecutor continued, saying "[i]t's further evidence that the defendant has stolen [the victim's] innocence." No further objections were made.
In the prosecutor's rebuttal she stated that appellant "has every right to sit there and say, '[prosecutor], you prove that. I am exercising my right.' That's his right. And that's what we've done. We've proven every single charge here, three of them to you beyond a reasonable doubt. And as I told you I would do at the start of this case, I am asking you now to return guilty verdicts on each one of those counts, because [appellant], as shameful and embarrassing as this whole situation might be, is guilty. [¶] He molested [the victim]. He stole her innocence. He knows it. Now it's time for him to accept responsibility for what he's done. I'm asking you to find him guilty. Thank you."
Defense counsel renewed her motion for a mistrial and argued that the prosecutor had committed cumulative misconduct. She cited the questions during cross-examination and the statements that the victim was further victimized by going to trial. Defense counsel also referred to the prosecutor's statement that appellant was exercising his Constitutional right to a jury trial. The court denied the motion.
"Prosecutorial misconduct is reversible under the federal Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.'" (People v. Guerra (2006) 37 Cal.4th 1067, 1124.) "'Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.' [Citation.]" (Ibid.) The court sustained each objection and instructed the jury to disregard the questions, describing them as "inappropriate, " "wrong" and "bad." Although the prosecutor's statements were inappropriate and constituted misconduct, appellant was not prejudiced.
Cruel and Unusual Punishment
Appellant claims that his sentence of 10 years, plus 15 years to life constitutes cruel and unusual under the state and federal constitutions. He asserts that the offense occurred during a brief time period, did not physically harm the victim, and was "only his second conviction for a criminal offense." Appellant has forfeited this claim by failing to object at trial. (People v. Norman (2003) 109 Cal.App.4th 221, 229; People v. Pecci (1999) 72 Cal.App.4th 1500, 1503.)
In any event, appellant's claim would fail on the merits. The power to define crimes and prescribe punishment is a legislative function. (People v. Dillon (1983) 34 Cal.3d 441, 477-478; In re Lynch (1972) 8 Cal.3d 410, 423-424.) For this reason, a defendant "must overcome a 'considerable burden' in convincing [the court] his sentence was disproportionate to his level of culpability." (People v. Weddle (1991) 1 Cal.App.4th 1190, 1197.) Section 288.7, subdivision (b) provides that any person over 18 years of age who engages in oral copulation with a child 10 years of age or younger, "is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life." Appellant has not established that the sentence is disproportionate to the offense. (People v. Cooper (1996) 43 Cal.App.4th 815, 827.) Nor is it grossly out of proportion to the severity of the crime, such that it violates the Eighth Amendment of the federal Constitution. (Id. at p. 823.)
DISPOSITION
The judgment is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.