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People v. Natividad

California Court of Appeals, Third District, Sacramento
Jul 16, 2008
No. C054727 (Cal. Ct. App. Jul. 16, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JOEL NATIVIDAD, Defendant and Appellant. C054727 California Court of Appeal, Third District, Sacramento July 16, 2008

NOT TO BE PUBLISHED

Super. Ct. No. 05F08232

SCOTLAND, P.J.

When he was 37 years old, defendant Joel Natividad began sexually molesting K.H. while she was 12 years old. He continued to do so until she was 14. When defendant was 45 years old, he sexually molested S.D. while she was 17 years old.

Defendant was convicted of 18 counts of lewd and lascivious acts upon K.H., a child under the age of 14 years (Pen. Code, § 288, subd. (a)); a lewd and lascivious act upon K.H. when she was 14 years of age (Pen. Code, § 288, subd. (c)(1)); two counts of unlawful sexual intercourse with K.H. when she was under the age of 16 and he was 21 years or more older then her (Pen. Code, § 261.5, subd. (d)); unlawful sexual intercourse with S.D. (Pen. Code, § 261.5, subd. (c)); and annoying and molesting S.D. (Pen. Code, § 647.6, subd. (a)). He was sentenced to state prison for an aggregate term of 43 years and four months.

On appeal, defendant contends (1) there was insufficient evidence to support his conviction on nine counts involving K.H., and (2) he received ineffective assistance of counsel when his trial attorney conceded that defendant engaged in sexual activity with K.H. We shall affirm the judgment.

FACTS

We summarize the facts in the light most favorable to the judgment. (People v. Hatch (2000) 22 Cal.4th 260, 272.)

Victim K.H. (Counts Three through Twenty-Three)

When K.H. was 12 years old, defendant began attending the church where K.H.’s grandparents were pastors. Defendant became a church song leader and began to pay special attention to K.H., who sang in the choir. In addition to practicing songs with her, he took K.H. and her cousin to movies and out to eat.

The first time that defendant touched K.H. inappropriately, she was in the back seat of his car. Defendant and K.H.’s cousin were in the front seat. Defendant reached back, put his hand on K.H.’s inner thigh under her dress, and smiled. K.H. was shocked. After dropping her cousin off, he stopped the car, turned off the headlights, and told K.H. that he liked her, commenting she was beautiful and mature for her age (he knew her age because she had told him). When he asked her if she liked him, she responded affirmatively, and he kissed her and touched her on her vagina and her breasts over her clothing. He then drove a short distance and pulled the car off the road. Saying he really liked her and had not known that she liked him, he asked if she was a virgin and whether she wore tampons. He told her that he was “hard” but she did not know what that meant. After he explained, he touched her breasts and vagina under her clothing for several minutes and took her home. K.H. thought defendant really liked her.

About a week later, K.H. saw defendant again. Soon thereafter, he claimed they were boyfriend and girlfriend, they were “meant to be” together, and it was a “God thing.” He kissed her when they were alone and told her not to tell. K.H. could not say no and thought maybe defendant was right.

When K.H. was still 12 years of age, defendant began taking her to and from Bible study, stopping at a drive-in theater. The first time he did so, defendant told K.H. he could not take it anymore and “ma[d]e out” with her for 10 to 15 minutes. He touched her breasts and vagina over and under her clothing. K.H. was certain that the touchings occurred before her 13th birthday because they did not go to the drive-in after she turned 13.

The second time defendant drove K.H. to Bible study and stopped at the drive-in theater, he said he missed and loved her and then touched her breasts and vagina over and under her clothes. K.H. believed he loved her. They talked about their relationship as a secret, something others would not understand and planned to limit their contact. Returning from Bible study, he stopped at the drive-in and had K.H. lie down on the back seat, where he forcibly French kissed her and held her tightly. He touched her breasts and vagina over and under her clothes.

On another occasion, defendant took K.H. to a movie when she was 12 years of age. On the way, he touched her vagina, telling her she was special and he had put her on a pedestal. After the movie, he touched her breasts under her clothing.

K.H. testified that defendant touched her about nine different times in a car when she was 12 years old. She did not recall the kind or color of the car, only that it was a car, not a truck, and that it may have been the same car each time but she was not sure. She recalled that defendant had a blue car.

When K.H. turned 13 years old, defendant gave her gifts for her birthday. About a month or two later, he took her to a hotel where they had sexual intercourse despite her desire not to do so. He did not use a condom and said afterwards that they fit perfectly. He told her he waited until she was 13 years of age so her body could handle intercourse. Two weeks later, they had intercourse again.

While K.H. was 13 years old, she had sexual intercourse with defendant over 55 times. He never used a condom. He did so when she was alone in the home she shared with her mother, in the car, or in other areas of the property.

After K.H. turned 14 years of age, defendant told her that if she dated other men she would be outside “God’s will for [her] life.” Her friends told her it was “gross” for a young girl to have a relationship with an older man, and K.H. began avoiding defendant. She also began cutting her wrists, ankles, and thighs, and even attempted suicide. Nevertheless, K.H. twice had sexual intercourse with defendant when she was 14. The first time, he showed up crying that he was losing her, brought some candles, rubbed oil on her, and had intercourse with her, overcoming her resistance. The second time, he removed the screen on her window and entered her bedroom, where he had intercourse with her despite her pleas that he stop.

Thereafter, K.H. told defendant that she did not love him and did not want to see him ever again, and asked him never to do to any other girl what he had done to her. It was not until she learned that defendant had been arrested for sexual misconduct with S.D., whom K.H. did not know, that K.H. reported to law enforcement officers what defendant had done to her.

K.H.’s testimony was corroborated in part by other witnesses and evidence, including a recorded telephone conversation during which defendant told K.H. that he was “dreaming about” her when she was 12 years old; stated he “picked” her because she was “so very attractive”; noted she was also “physically . . . mature” and was “the best thing that happened” to him; remarked that it “amaze[d]” him because a “lot of fourteen years old don’t act like you,” “[u]sually girls your age, all they think is Barbie dolls,” but that “such a young girl like you could ever act this way . . . you know, you’re such -- you’re still very young and yet you know what you want”; and acknowledged they had been “very intimate” and he had been her “first.”

Other corroborating evidence included the testimony of E.B., who recounted that during an all-night prayer meeting in her home when K.H. was 14, defendant pointed to K.H., who was sleeping on the floor, and told E.B.: “‘This is it for me. This is it. I love her and I’m gonna wait for her.’” Thinking the incident was “creepy,” E.B. told defendant’s sister about it.

Victim S.D. (Counts One and Two)

When S.D. was 17 years old, she lived in a group home for female children. Defendant was a youth care counselor and the only staff on duty in the early morning hours of September 13, 2005. He came into S.D.’s room, sat on the floor, and talked to her for several minutes. She was in bed. Defendant then left but returned minutes later. Initially, he sat on S.D.’s bed but after talking for a few minutes, he got under the covers with her. He left again but then returned 20 minutes later and immediately got under the covers with her. S.D. was frightened and uncomfortable. She turned her back to him. After rubbing her back and massaging her shoulders, he took off his pants and her sweat pants and underwear. He got on top of her and put his penis in her vagina. He did not use a condom. S.D. was shocked and speechless. When he was finished, he left the room, telling S.D. it was their secret and not to tell.

The next morning, defendant repeated his warning not to tell. But S.D. gave a letter to a schoolmate, explaining what defendant had done. After school, S.D. told a staff person at the group home what had happened, but omitted the part about sexual intercourse. S.D. knew that defendant was well-liked in the home, and she did not want him to get into severe trouble because she still lived in the home. When staff learned the entire story, they called the police.

The police recorded a call from S.D. to defendant, during which defendant did not explicitly admit having sexual intercourse with her but said: “For yesterday, I’m apologizing to you and I’m saying I’m sorry.” When S.D. asked why defendant had “sex” with her, he replied: “Last night is because of our friendship that I stayed there with you.” Later, defendant told S.D. that she was putting him in a “very hard position” and that “[a]s far as I’m concerned, you did this, too. That, you know, you’re kind of, like, a favorite to me that . . . I just let you do what you do. Like yesterday, you know.” When S.D. said she was worried about getting pregnant, defendant replied, “you’re not going to get pregnant,” explaining in part: “I don’t have a kid, number 1. Number 2, I am fixed.” Saying to S.D., “my life is in your hands,” defendant repeatedly urged her not to tell the police what happened because “you know what they’re going to do with me? They’re going to throw me in jail” and he would lose his job. When S.D. said she was “going through the same thing you are right now,” i.e., being worried about what occurred and a possible police investigation, defendant disagreed, stating: “To you, it’s just a history. For me, it’s my entire life.” Thus, defendant told her that “‘[a]s far as I’m concerned, it didn’t happen’” and that if questioned about the incident, he would deny having sexual intercourse with her: “‘What sex?’ You know what I’m saying? That’s all I’m going to say to the police” and that S.D. could do the same because “they cannot force you to do something that you don’t want to do.”

Later that evening defendant telephoned his sister and asked her to pray for him. When asked why, he said: “I can’t tell you.”

The following day, defendant was interviewed by Detective Lisa Bowman. He admitted having had sexual intercourse with S.D., whom he knew was 17 years of age. He explained that he partially pulled his penis out, ejaculated, and then pulled completely out. He admitted asking S.D. not to tell anyone. He claimed that she could not get pregnant because his sperm count was low. He said he was weak and his life was ruined. He wrote an apology letter to S.D. at Bowman’s suggestion.

Crime lab testing of the crotch of S.D.’s underpants revealed semen from an aspermic male.

Victim C.H. (uncharged conduct)

Just prior to turning 16 years of age, C.H. met defendant at church where defendant was the music minister. He recruited her to play the violin in the band and became a friend of her family. About two weeks after they met, C.H. stayed late to help defendant at church. He drove her home. On the way, he stopped and massaged her on her back, arms, and stomach. He then put his hand down her pants onto her clitoris. Soon thereafter, they started to engage in oral sex and sexual intercourse several times a week. At first, C.H. did not want to have sexual intercourse and told defendant. Defendant usually did not use a condom. He claimed he was infertile and had a low sperm count. C.H. thought they would be together forever. After high school, C.H. went to college, and defendant tried to control her so they broke up. C.H. later told her mother about the relationship because C.H. was worried about her younger sisters being around defendant.

Defense

Defendant’s sister testified that defendant drove a red truck when he came to California and that she did not recall him driving any other vehicle except for a blue car purchased by defendant’s brother-in-law, who testified that he bought a blue Ford Probe in October 1998 (which was after the date on which K.H. said defendant first touched her inappropriately) and that defendant did not start driving the car until sometime in 1999. According to defendant’s sister, she never saw him act inappropriately toward K.H., and she denied that E.B. told her about a “creepy” incident when defendant looked at K.H. while she was sleeping and said that he loved her and was going to wait for her.

DISCUSSION

I

Defendant challenges the evidence to support counts three through eleven, all of which alleged that he committed lewd and lascivious acts upon K.H. when she was 12 years old. In his view, evidence of K.H.’s age is insufficient because she claimed that the offenses occurred in a blue car, which defendant did not drive until two months after K.H.’s 13th birthday. We are not persuaded.

In determining whether the evidence supports a conviction, we review “the whole record in the light most favorable to the judgment” and decide “whether it discloses substantial evidence . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) The question, then, “‘is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.]” (People v. Hatch, supra, 22 Cal.4th at p. 272, italics omitted.)

K.H. testified that all the offenses alleged in counts three through eleven occurred when she was 12 years old. She did not testify that all occurred in a blue car. Although she recalled defendant driving a blue car at some point when he was molesting her, and it was the only car she remembered, she did not recall whether he had driven any other cars. Defense counsel emphasized the color of the car in cross-examining K.H. and in closing argument. The jury resolved the issue against defendant.

Considering the evidence as a whole, the jury reasonably could have questioned the credibility of defense evidence regarding “when [as the prosecutor put it in closing argument] this blue car was supposedly purchased,” or concluded that, in light of K.H.’s young age when the molestations began and the passage of time before she reported them, she was simply mistaken about the vehicle that defendant drove when he started molesting her.

In sum, the evidence showed that defendant attended K.H.’s church for several months before her 13th birthday. He was the song leader, and she sang in the choir. He paid special attention to her, and the molestations soon began. K.H. consistently testified that, despite the defense claim that the blue car was purchased after her 13th birthday, all the incidents alleged in counts three through eleven occurred when she was 12 years of age. K.H.’s testimony was not physically impossible or inherently improbable, as defendant claims on appeal. Indeed, it was corroborated in many respects by other witnesses and by defendant’s incriminating statements. Thus, it constitutes substantial evidence supporting the convictions on counts three through eleven. (People v. Barnes (1986) 42 Cal.3d 284, 306 [testimony of one witness is sufficient to support a conviction; to warrant the rejection of witness testimony believed by the jury, there must exist either a physical impossibility that it is true, or its falsity must be apparent without resorting to inferences or deductions].)

II

Defendant takes issue with defense counsel’s argument to the jury, conceding that defendant and K.H. had engaged in sexual intercourse, as had defendant and S.D., but arguing that the charges were exaggerated, particularly with respect to K.H. Defense counsel made the same concession in her opening statement to the jury.

Characterizing this as a case that “swings on the credibility of a single witness,” defendant argues “there was no tactical advantage to the defendant from a concession of guilt”; thus, he was deprived of his constitutional right to the effective assistance of counsel. We disagree.

Defendant’s reliance upon United States v. Swanson (9th Cir. 1991) 943 F.2d 1070 is misplaced. Swanson’s trial counsel did not call any defense witnesses. Then, in closing argument to the jury, he stated the evidence against Swanson was overwhelming, and he was not going to insult the jurors’ intelligence. Although he pointed out minor discrepancies in the testimony of prosecution witnesses, counsel said he was not “‘trying to raise reasonable doubt now, because again I don’t want to insult your intelligence. . . .’ He concluded his argument by telling the jurors that if they found Swanson guilty they should not ‘ever look back’ and agonize regarding whether they had done the right thing.” (Id. at p. 1071.) Understandably, the appellate court concluded counsel’s concession during closing argument that there was no reasonable doubt that his client robbed the bank was “an abandonment of the defense of his client” and constituted ineffective assistance of counsel. (Id. at p. 1074, 1074-1076.)

Here, in contrast, trial counsel did not concede defendant’s guilt as to all of the charges. As a tactical choice, she simply acknowledged what was established by the overwhelming prosecution evidence, including defendant’s damaging admissions, that defendant engaged in sexual acts with K.H. and S.D. Having done so, counsel argued vigorously that “[t]here’s been a lot of exaggeration that has happened in this case, particularly with [K.H.]” and that the prosecution had failed to establish many of the charges beyond a reasonable doubt. For example, counsel argued the evidence showed that S.D. consented to his massaging her and other touchings and, thus, defendant could not be found guilty of annoying and molesting her. (Pen. Code, § 647.6, subd. (a).) And counsel spent much time arguing that many of the allegations by K.H. had not been proved beyond a reasonable doubt, in part because evidence established that defendant was not driving a blue car during the period in which he allegedly molested K.H. in a blue car and that defendant had not yet arrived in California at the time K.H. testified the molestations began. In counsel’s words, “we have actual evidence that shows us that the things that [K.H.] said happened could not have happened the way she said . . . . [¶] That’s why the car is so important in this case, the car and the dates that he showed up.” Counsel pointed out motives for K.H. to falsely accuse defendant of molesting her when she was 12 years old. Stressing inconsistencies in K.H.’s testimony regarding those charges, counsel asserted that K.H. “exaggerated the situation” and was “misremembering her time line.” In addition, counsel challenged the testimony of other prosecution witnesses, asserting for example that E.B.’s testimony was “unbelievable, to be frank.” Emphasizing the prosecutor’s high burden of proof beyond a reasonable doubt, counsel ended by urging the jurors: “[T]ake your time to make the right decision. Hold [defendant] responsible. Hold him accountable for what he did do. Absolutely. But he didn’t do everything that has been alleged in this case, and I am asking you to be neutral arbitrators, to hold your passion and emotion about this case and the facts in this case and your feelings about the individuals in this case. Put that to the side. Look at the evidence for what it really, really is and come back with the right and true and just verdicts that should be held in this case.”

Far from abandoning the defense of her client, as occurred in United States v. Swanson, supra, 943 F.2d 1070, defense counsel understandably made the tactical choice to concede what evidence overwhelmingly established--that defendant had engaged in sex acts with K.H. and S.D.--but to forcefully challenge evidence introduced on many of the charges, particularly the accusations that defendant sexually molested K.H. when she was 12 years old.

As even the court in United States v. Swanson recognized, “in some cases a trial attorney may find it advantageous to his client’s interests to concede certain elements of an offense or his guilt of one of several charges.” (United States v. Swanson, supra, 943 F.2d at pp. 1075-1076.) This was such a case. While defense counsel’s tactical decision turned out to be unsuccessful, it was not unreasonable under the circumstances and, thus, it was not ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696]; People v. Lucas (1995) 12 Cal.4th 415, 446; People v. Mayfield (1993) 5 Cal.4th 142, 177.)

DISPOSITION

The judgment is affirmed.

We concur: BLEASE, J. DAVIS, J.


Summaries of

People v. Natividad

California Court of Appeals, Third District, Sacramento
Jul 16, 2008
No. C054727 (Cal. Ct. App. Jul. 16, 2008)
Case details for

People v. Natividad

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOEL NATIVIDAD, Defendant and…

Court:California Court of Appeals, Third District, Sacramento

Date published: Jul 16, 2008

Citations

No. C054727 (Cal. Ct. App. Jul. 16, 2008)