Opinion
D070079
02-28-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO ANGEL MENDOZA, Defendant and Appellant.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Elizabeth Miller, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS276250) APPEAL from a judgment of the Superior Court of San Diego County, Francis M. Devaney, Judge. Affirmed and remanded with directions. Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Roberto Angel Mendoza of two counts of oral copulation with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b); counts 1 and 3), two counts of sexual penetration with a child 10 years of age or younger (§ 288.7, subd. (b); counts 5 and 7), and nine counts of lewd acts with a child (§ 288, subd. (a); counts 2, 4, 6, & 8-13). The jury found true special allegations Mendoza had substantial sexual conduct with a child under the age of 14 (§ 1203.066, subd. (a)(8)) with respect to counts 2, 4, 6, 8, 9, and 10. The court sentenced Mendoza to 30 years to life in state prison based upon consecutive terms of 15 years to life for counts 1 and 3. The indeterminate terms of 15 years to life for counts 5 and 7 and the determinate middle terms of six years each for counts 9 through 13 were to be served concurrently with the terms for counts 1 and 3. The court stayed the sentences for counts 2, 4, 6, and 8 pursuant to section 654.
Further statutory references are to the Penal Code unless otherwise indicated.
Mendoza contends the prosecutor committed prejudicial error in rebuttal argument by mischaracterizing the evidence regarding the victim's statements and the failure of Mendoza's counsel to object to the prosecutor's statement was ineffective assistance of counsel. Mendoza also contends the abstract of judgment is unclear and should be corrected. We disagree with Mendoza's first contention. However, we remand to the trial court with direction to amend the abstract of judgment to correct any ambiguity and clarify the term imposed for count 9 shall be served concurrently with the consecutive terms imposed for counts 1 and 3 as stated in the oral pronouncement of judgment. In all other respects, we affirm the judgment.
BACKGROUND
A
Family Background
In January 2011 when the child was seven or eight years old, she and her siblings stayed with the child's aunt and uncle while the child's mother worked. Mendoza, who was then in his early 20's, is the stepson of the child's biological father, but is not biologically related to the child. Mendoza, his girlfriend, and his half brother, who was then approximately 17 years old, also lived in the aunt's home.
To protect the privacy of the victim in this case, we refer to her as "the child" or "child." For the same reason we refer to the child's mother as "mother."
Mother moved with her children to Imperial Beach, California, in February 2011. Mendoza, his girlfriend, and his half brother moved in with the child's family to help mother watch the children while she worked at night. In exchange for helping with the children, mother provided room, board and spending money. Mother and the children moved to another home in June 2011 without Mendoza and the others. Mother subsequently remarried and moved her family to another part of the state.
B
The Child's Disclosure
The child's school sent a letter in December 2012 notifying parents of a child abuse incident in the school district and reminding parents to talk to their children about child abuse. When mother read the letter to her children, the child started to cry the child's sister asked if this could happen while someone was asleep. The child then told mother Mendoza had touched her inappropriately.
The child said Mendoza put his hand down her pants and touched her "privates inside" on more than one occasion. She said he also used his mouth on her private area. The child said on a day when mother was recovering from oral surgery when they lived in Imperial Beach, Mendoza took the child into mother's bathroom, pulled down her pants, and performed oral copulation. She also said he would kiss her on the mouth with his tongue when they would play hide-and-seek in the dark.
The child also said her uncle had touched her when they were staying at her aunt's house. The uncle came into the room where the children were sleeping, put his hand down her pants, and rubbed her under her panties. Mother called the police.
C
The Child's Statements in Police Interviews
1
An officer spoke with the child and her mother the day after the child disclosed the incidents to her mother. The responding officer initially spoke to the child's mother and took a statement from her about what the child disclosed the night before. According to the officer, mother reported both Mendoza and the uncle had touched the child's private area with their hands and mouths on separate occasions between February and June 2011.
Mother testified she only recalled telling the officer the child reported the uncle touched her inappropriately with his fingers. --------
The child told the responding officer that Mendoza and the uncle touched her inappropriately. She said the uncle touched her one time at his home. She then began to tear up and said she was not comfortable talking about the incident. After being reassured she did not need to talk, the child chose to proceed with the interview.
The child reported Mendoza touched her with his hands and his mouth on her private area. He kissed her when they were playing hide-and-seek. He also had her take her pants off and he touched her. When she began to tear up again, the officer concluded the interview. The child indicated she would feel more comfortable speaking to a female officer.
2
A detective interviewed the child in January 2013. She stated something happened with Mendoza both at her aunt's home and at the Imperial Beach home. The first incident was in the aunt's home when she was eight years old. The child was sitting on a couch with a blanket covering her when Mendoza sat next to her and touched her. She initially said he touched and rubbed her private area underneath her clothes with his hand and his mouth. As she described the event, she said he rubbed her private area with his hands while her siblings were in the room. The child said it hurt when he pressed on her private area and she knew it was wrong. Mendoza told her not to tell anyone.
The child said there were about six incidents with Mendoza at the Imperial Beach home. She described Mendoza taking her into the garage, locking the door, laying her down on a desk, pulling down her pants and underwear, and touching inside her private area with his fingers and tongue.
The child described an incident when her mother was sleeping after having her wisdom teeth removed. Mendoza took the child into the mother's bathroom, placed her on the toilet, and used his tongue to touch the child's private area.
The child also recalled an incident when she and her siblings played hide-and-seek in the garage in the dark, Mendoza found where she was hiding, rubbed her private area with her clothes on, and kissed her on the mouth with his tongue.
On another occasion, the child was sitting on a couch playing a video game on another occasion when Mendoza pulled her clothes down to her thighs and used his tongue on her private area. She said he stopped quickly and left when he heard a door open.
The child stated the last incident at the Imperial Beach home was the incident when he touched her after she had taken a shower. He again used his tongue and fingers.
Mendoza made the child touch his penis when they were watching a movie at home and another time when they went to the movies. He did this when Mendoza's girlfriend took someone to the bathroom.
The child said her uncle touched her on one occasion. She said she was sleeping in a room with her siblings and cousin when the uncle came in and started rubbing her private area outside of her clothing. She pretended to be asleep.
D
The Child's Trial Testimony
The child testified she was sitting on a couch at her aunt's house watching her siblings play when Mendoza sat down next to her and started touching her. He rubbed the outside of her private area with his fingers. Mendoza told the child not to tell anyone.
When they lived in Imperial Beach, Mendoza asked the child to accompany him into the garage where he touched her private area under her clothes with his hand and his tongue. This made her feel uncomfortable. She did not tell an adult because she was afraid an adult would be mad at her for not telling Mendoza to stop.
Mendoza also came into the bathroom when she was showering. When she finished showering, Mendoza was still in the bathroom. He laid her onto the floor while she was naked and touched her private area with his tongue and his hands. The child did not like it.
On one occasion the child and her siblings were playing hide-and-seek in the garage with Mendoza when Mendoza kissed the child on the mouth. He also used his fingers to rub her private area over her clothes.
On another occasion, the child sat on a couch to watch Mendoza play video games. Mendoza began touching her private area with his hand over her clothes. He then pulled her pants down to her knees and touched her private area outside and inside with his tongue.
The child did not tell anyone about these incidents when they occurred. She was afraid of getting in trouble because she did not tell him to stop.
Mendoza also had the child touch his private area with her hand when they were at a drive-in movie theater. The child and her siblings were lying down in the van watching the movie. Mendoza was lying next to the child under blankets. Mendoza took her hand and put it on his private area under his clothing where he moved it back and forth.
When the child told her mother about Mendoza, she said her uncle had also touched her. The child and her sisters were sleeping in a room at their aunt's house when the uncle rubbed the child's private area with his hand over her clothing. The child pretended to be asleep. The uncle only touched the child on one occasion.
The child's sister disclosed to the mother the uncle had inappropriately touched her. The child told mother she had also been inappropriately touched by the uncle and by Mendoza.
E
Mendoza's Statements in Pretext Calls
The child made two pretext calls to Mendoza. When she asked if she could get pregnant from what he did to her, he denied doing anything and questioned who was calling. When she asked if she still had to keep it a secret, he said, "Yeah, but uh. Who is this?" When she asked why he touched her privates with his tongue and fingers, he hung up.
In a pretext call with mother, Mendoza initially denied inappropriate contact with the child. Eventually, however, he admitted he touched the child with his fingers and his tongue when they lived in Imperial Beach. He also admitted he had the child touch his penis. He admitted touching the child in the garage while the other children were in the house. He also admitted to using his tongue on her private area in the bathroom while mother slept on her bed.
F
Defense Case
1
Mendoza's half brother testified he lived at the aunt's home along with Mendoza and Mendoza's girlfriend. The child and her sisters stayed at the home when mother was at work. Either the girlfriend or the half brother would babysit the children. He denied Mendoza wsas ever in charge of the children.
Mendoza, his girlfriend and his half brother moved to Imperial Beach with mother and the children. The half brother and Mendoza's girlfriend were primarily responsible for watching the children while mother was at work. Mendoza played video games and was never alone with the children.
The half brother said he attended a drive-in movie with all the children, mother, Mendoza, and Mendoza's girlfriend. The girlfriend sat next to Mendoza. He never saw Mendoza touch the child inappropriately at the movie or at any other time.
The half brother denied the children played in the garage. They were not allowed in the garage because he and Mendoza smoked marijuana in the garage. The half brother denied that marijuana clouded his judgment and stated he was able to care for the children after smoking marijuana.
2
Mendoza's girlfriend testified she and the half brother were in charge of watching the children both at the aunt's house and at the Imperial Beach house. Mendoza was never in charge. The girlfriend said none of the adults in the house played hide-and-seek with the children.
Mendoza, his girlfriend, and his half brother took the children to the drive-in movie theater on one occasion. The girlfriend did not remember if the mother also attended. She stated Mendoza sat next to a window and she sat next to him. The children sat in the middle and the half brother sat on the other side of the children.
The girlfriend testified the children would go into the garage to get clothes, but they did not play in the garage. She admitted there were times they could have been in the garage when she would not have seen them. She denied Mendoza ever played with the children. The girlfriend said the child showered with her sisters, never alone.
DISCUSSION
I
Prosecutor's Statement
Mendoza contends the prosecutor committed error in rebuttal closing argument by mischaracterizing evidence regarding the child's statements about molestation by the uncle. He also contends the failure to object to the prosecutor's statement amounted to ineffective assistance of counsel. We disagree.
"In California, the law regarding prosecutorial misconduct is settled: 'When a prosecutor's intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated. Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury.' " (People v. Masters (2016) 62 Cal.4th 1019, 1052.)
However, " ' " ' "[a] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations] ..." [Citation.] "A prosecutor may 'vigorously argue his [or her] case and is not limited to "Chesterfieldian politeness" ' [citation] ... ." ' " ' " (People v. Gamache (2010) 48 Cal.4th 347, 371 (Gamache).) The prosecutor "has the right to fully state his [or her] views as to what the evidence shows and to urge whatever conclusions he [or she] deems proper.' " (People v. Panah (2005) 35 Cal.4th 395, 463 (Panah).) " ' "Whether the inferences the prosecutor draws are reasonable is for the jury to decide." ' " (People v. Valdez (2004) 32 Cal.4th 73, 134.)
" 'To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.' " (Gamache, supra, 48 Cal.4th at p. 371.) Additionally, "[t]o preserve a claim for appeal under either state or federal law, a defendant must raise a contemporaneous objection at trial and seek a jury admonition. [Citation.] In the absence of an objection, any claim is forfeited unless an exception applies." (Ibid.) The two exceptions to forfeiture are "(1) the objection and/or the request for an admonition would have been futile, or (2) the admonition would have been insufficient to cure the harm occasioned by the misconduct. ... A defendant claiming that one of these exceptions applies must find support for his or her claim in the record." (Panah, supra, 35 Cal.4th at p. 462.)
Here, Mendoza's counsel argued in closing that the child's testimony was unreliable and suggested she confused incidents with the uncle and inappropriately attributed them to Mendoza. Counsel argued the child's mother told the responding officer the uncle used both his mouth and hand on the child's genitalia. Counsel also argued the child learned about touching a private area with a tongue from the uncle rather than from Mendoza.
The prosecutor made the following statement in rebuttal to the defense arguments about the uncle: "The defense would like you to believe that [the child] is completely confused. [The child] has repeatedly said that it was one time over the clothes. She told you that she had spent the night at the [aunt's] house and she would sleep with her sisters and her cousins. And that she pretended to be asleep when [the uncle] came in and rubbed her on her private area over her clothing. One time. ... [The child] said, 'I could forget about it because it happened once.' That is what she told you here in court when asked about [the uncle.] She told [the responding officer] it happened one time with [the uncle]. She told [the detective] in the interview that it happened one time with [the uncle]. And she came into court and testified that it happened one time with [the uncle]. Just because she is a child doesn't mean she's completely confused about who it was that was actually molesting her for the better course of six months."
Defense counsel did not object to this statement, thereby forfeiting the argument. (Gamache, supra, 48 Cal.4th at p. 372.) Even exercising our discretion to consider the issue, we conclude there was no prejudicial misconduct.
The prosecutor's statement was a fair comment on the state of the evidence. The prosecutor's statement was in response to the defense argument about the mother's initial statement as recalled by the responding officer that the uncle used both his hand and his tongue to molest the child, suggesting more than one incident. Although the prosecutor did not specifically refer to the officer's report of the mother's statement, the prosecutor pointed out the child did "repeatedly" state there was only one incident with the uncle when the child was directly questioned by two police officers and in court. The prosecutor's statement was supported by the evidence. The prosecutor asked the jury to draw permissible inferences from the evidence. (People v. Lucas (1995) 12 Cal.4th 415, 473.)
Even if the prosecutor's statement could be construed as error, Mendoza has not established it is reasonably probable he would have obtained a more favorable result absent the statement. (Gamache, supra, 48 Cal.4th at p. 371; People v. Frye (1998) 18 Cal.4th 894, 970 ["we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements"].) Mendoza admitted in the pretext call with mother that he used both his hands and his mouth to molest the child. He also admitted to instances of molestation consistent with those incidents recounted by the child both in police interviews and in trial testimony.
Further, the jury was instructed that the statements of counsel were not evidence. We presume the jury followed the instructions of the court absent any contrary indication. (People v. Gray (2005) 37 Cal.4th 168, 217.)
Because we conclude there was no prejudicial misconduct, we need not reach the issue of ineffective assistance of counsel. (People v. Nguyen (1995) 40 Cal.App.4th 28, 37, fn. 2.) We note, however, " '[f]ailure to object rarely constitutes constitutionally ineffective legal representation ... .' [Citation.] Moreover, '[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.' [Citation.] ... [C]ounsel could have preferred not to draw the jurors' attention to particular comments by the prosecutor by objecting to them." (People v. Huggins (2006) 38 Cal.4th 175, 206.)
II
Abstract of Judgment
The court imposed sentences of 15 years to life for counts 1, 3, 5, and 7, with the terms for counts 5 and 7 to be served concurrently with the terms for counts 1 and 3 for a total term of 30 years to life. The court stayed sentences for counts 2, 4, 6, and 8 pursuant to section 654. As to counts 9, 10, 11, 12, and 13, the court imposed a mid-range sentence of six years each, "to be served concurrently with each other and concurrent with the 30-year-to-life term." The court also made it clear, "[c]ounts 9, 10, 11, 12, and 13 will be served concurrently so they will not add any further time to the 30-years-to-life" term.
Mendoza contends the abstract of judgment for count 9 should be corrected because in one place it suggests the term imposed for that count is to be served consecutively rather than concurrently, which is inconsistent with the court's oral pronouncement of judgment. Mendoza does not specify exactly what portion of the abstract is unclear. The People merely state the abstract "clearly shows that [c]ount 9 is to be served concurrently." Both parties refer generally to the felony abstract of judgment for determinate terms. Therefore, we review the specifics of the abstracts of judgment.
The abstract of judgment for the indeterminate terms states Mendoza is to serve consecutive terms of 15 years to life for counts 1 and 3, with the additional terms of 15 years to life for counts 5 and 7, each to be served concurrently with the terms for counts 1 and 3. Box number 7 is checked, indicating there are additional determinate terms noted on an abstract of judgment form for determinate sentences. The second page of this abstract for indeterminate terms indicates the terms for the determinate sentences imposed for counts 9 through 13 are to be served concurrently with the indeterminate terms for counts 1, 3, 5, and 7.
The first page and an attachment to the abstract of judgment for the determinate terms lists counts 9 through 13 with boxes marked indicating the middle term for each count is to be served concurrently. As to count 9, six years are entered in a column entitled "principal or consecutive time imposed." The time listed in this column for counts 10 through 13 is also six years, but the entries are enclosed in parentheses. The form does not indicate the significance of the parentheses. In lines 6 and 8, the abstract states the total time for the determinate sentences is six years. Additionally, a box is checked on line 7 indicating there is an additional indeterminate term, referring to the abstract of judgment for the indeterminate terms. The second page of the abstract at line 13 orders "determinate [counts] 9, 10, 11, 12 [and] 13 concurrent with indeterminate [counts] 1, 3, 5[, and] 7."
We conclude the abstract of judgment form for determinate terms may be ambiguous with respect to count 9. The use of parentheses for the six-year terms imposed for counts 9 through 13 are inconsistent and unexplained. Additionally, lines six through eight may suggest a total of six years for the determinate terms in addition to the indeterminate terms identified on the abstract of judgment for indeterminate terms. These notations are inconsistent with language appearing on the second page of each abstract stating the determinate terms are to be served concurrently with the indeterminate terms. As such, we remand the matter to the trial court for clarification and correction of any ambiguity to ensure the abstract accurately reflects the oral pronouncement of judgment.
DISPOSITION
The matter is remanded to the trial court with direction to correct or amend the abstract of judgment for determinate terms to clarify the sentence for count 9 shall be served concurrently with the consecutive terms imposed for counts 1 and 3. The court is further directed to send a certified copy of the amended or corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
MCCONNELL, P. J. WE CONCUR: HALLER, J. AARON, J.