Opinion
D074672
05-18-2020
THE PEOPLE, Plaintiff and Respondent, v. RUBEN ISAAC NEVAREZ, Defendant and Appellant.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oettig and Anthony DaSilva, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT THE COURT:
It is ordered that the opinion filed on May 18, 2020 be modified as follows:
1. On page 3, the fourth sentence of the first full paragraph is deleted and the following is inserted in its place:
In Warner Springs, Nevarez continued his abuse of Daughter 1. Multiple times per week, he had vaginal intercourse with her.
2. At the end of the first paragraph on page 3, after the sentence ending "witnessed each other's abuse," add the following as footnote 2, which will require renumbering of all subsequent footnotes:
2 In addition to hearing the sisters' trial testimony, the jury also considered the forensic interview of Daughter 2, which was introduced by Nevarez's counsel.
3. On page 9, the first sentence of the first full paragraph beginning with "The single witness in Navarrete," insert "family members" before the words "and the defendant" so the sentence reads:
The single witness in Navarrete also had a more plausible motive to lie; there was an ongoing property dispute between her family members and the defendant.
Appellant's petition for rehearing is denied.
There is no change in judgment.
HALLER, Acting P. J. Copies to: All parties
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD271242) APPEAL from a judgment of the Superior Court of San Diego County, Joseph P. Brannigan, Judge. Affirmed. Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oettig and Anthony DaSilva, Deputy Attorneys General, for Plaintiff and Respondent.
Ruben Isaac Nevarez was convicted by a jury of sexually abusing his girlfriend's two young daughters and physically abusing her son. On appeal, he claims the court committed four errors: (1) failing to dismiss one juror for bias; (2) dismissing another juror due to a personal emergency; (3) failing to instruct the jury on his parental right to punish a child; and (4) failing to declare a mistrial after his former girlfriend testified she learned about some of the crimes because Nevarez told her. He also contends that these events constitute cumulative error. We conclude there was one error at most, and Nevarez was not prejudiced by it. It necessarily follows that there was no cumulative error. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
F.T. (Mother) and Ruben Nevarez met at work and began dating in 2008. Over the course of their relationship, which ended in 2015, they had four children together. When they met, Mother lived with her parents and her three young children in San Diego. Her oldest daughter (Daughter 1) was six years old, her son (Son) was four, and her second daughter (Daughter 2) was two.
To protect personal privacy, we refer to the victims and family members without using their names. (Cal. Rules of Court, rule 8.90.)
Mother and Nevarez had twin boys who were born in 2010 and a girl in 2011. Mother was using methamphetamine, and their third child was born with some birth defects as a result. In 2012, Mother and Nevarez moved into an apartment together with their three children on University Avenue in San Diego. Later that year, Mother's three older children came to live with them.
Mother was often gone for hours at a time smoking methamphetamine. Nevarez began sexually abusing Daughter 1, who was nine or 10 by then, at the University Avenue apartment. In late 2012, Mother, Nevarez, and all the children moved to a trailer in Warner Springs. She stopped using meth around this time after she found out she was pregnant again, but resumed her drug use after her seventh child was born in 2013. In Warner Springs, Nevarez regularly raped Daughter 1. He also began sexually abusing Daughter 2, who was eight or nine when it started. The girls sometimes witnessed each other's abuse.
Son, who had learning disabilities and behavioral issues, was subject to Nevarez's physical abuse. In December 2014, he was briefly held in a mental health hospital after he told a counselor at school that he wanted to kill Nevarez and his mother because Nevarez picked on him.
From 2012 to 2016, several social workers investigated the family, usually for neglect inquiries. Teresa Gomez investigated in 2014. Daughter 2 reported Nevarez touched her and made her feel unsafe. Tamyra Bettilyon investigated in both 2013 and 2014. Son did not want to speak with her, and the other children she interviewed, the twins and Daughter 2, denied any abuse. In 2014, Son spoke with Chanell Farnese and told her Nevarez punched him in the chest, hit him with a broom, and burned him with a cigarette or a lighter. Most of these investigations were closed as unsubstantiated.
In October 2015, Daughter 1 told her mother about the sexual abuse. Mother confronted Nevarez, who denied it, and then the family did not talk about it. Daughter 2 also told her mother about the abuse at some point. By December 2015, Mother ended her relationship with Nevarez and moved with all the children back to her parent's home in San Diego.
In early 2016, social worker Felicia Bimer became involved with the family. Both girls disclosed the sexual abuse to her. Daughter 2 described oral sex and said Nevarez touched her private parts. Daughter 1, who was taking a sexual education class at her school, expressed anxiety that she might be pregnant or have a sexually transmitted disease from Nevarez. Another social worker, Wendy Bell Togia, organized forensic interviews for the girls later that year. In November 2016, she removed the children from Mother's custody and they were placed with various family members.
In 2017, the San Diego District Attorney charged Nevarez with eight counts of lewd acts on a child under the age of 14 (Pen. Code, § 288, subd. (a) ) as to both Daughter 1 and Daughter 2, one count of corporal injury on a child (§ 273d, subd. (a)) as to Son, and one count of oral copulation/sexual penetration with a child 10 years old or younger (§ 288.7, subd. (b)) as to Daughter 2. Counts 1 to 8 included allegations that the sexual conduct was substantial (§ 1203.066, subd. (a)(8)), and committed against more than one victim (§ 667.61, subds. (b), (c) & (e)).
All statutory references are to the Penal Code unless otherwise indicated.
Counts 1 to 6 applied to his abuse of Daughter 1 and counts 7 and 8 applied to Daughter 2.
At trial, the three children all testified against Nevarez. Daughter 1 detailed the abuse she endured at the University Avenue apartment and the Warner Springs home. It began with Nevarez calling her into the bedroom when Mother was not home and telling her to pull down her pants and touch her vagina while Nevarez watched. He would also wake her up in the middle of the night and kiss her on the lips—she described it as making out. In Warner Springs, the abuse escalated. Nevarez would touch her vagina with his finger frequently and penetrated her vagina with his penis multiple times per week. She also performed oral sex on Nevarez on at least five occasions. She witnessed Nevarez abusing her siblings in Warner Springs. More than once, she saw Daughter 2 "fingering herself" in front of Nevarez and performing oral sex on him. She also saw Nevarez punch and grab her brother.
Daughter 2 testified that Nevarez hit her and her siblings. She was uncomfortable talking about the sexual abuse at trial, but she used diagrams to communicate that she performed oral sex on Nevarez more than twice. In her forensic interview, which was submitted to the jury, she said Nevarez touched her and her sister's private parts.
Son testified that Nevarez hit and punched him regularly, sometimes with a broom, and burned him with a crack pipe. He recounted Nevarez threatening him with a knife on multiple occasions, including one incident where Nevarez accidentally sliced him across the ribs. Apart from the children, the prosecution's case included testimony from their mother, various social workers, and some of Son's teachers who noticed his injuries or in whom he confided about his abuse. A clinical psychologist also explained how commonplace it is for children to recant legitimate abuse allegations.
Nevarez testified and denied all the allegations. He said he never touched the girls in an inappropriate way and never used corporal punishment on any of Mother's older children. He explained that he would discipline them by grounding them or restricting privileges, but only their mother would spank or hit them.
The jury convicted Nevarez of all counts and found true all the allegations.
DISCUSSION
1. Mother's Testimony
Mother testified for the prosecution as their first witness. The day before trial was set to begin, the prosecutor received new information that Mother volunteered to investigators picking her up on a warrant. She told them she was in contact with another person who was molested by Nevarez as a child, showed them a purportedly incriminating Facebook message Nevarez sent her, and recounted a conversation they had before she left Warner Springs where he "admitted to her that he had sexually abused the children." The prosecutor turned the statement over to defense counsel the same day she received it. The morning the trial began, the parties discussed this new development with the court. The defense moved to exclude the Facebook message, any mention of an additional victim, and Nevarez's admission to Mother that he sexually abused the girls. The prosecutor did not oppose the motion; she did not intend to elicit any of the new evidence from Mother, who had already been advised not to bring it up in her testimony. The court granted the motion.
The court characterized this action as a general ruling and said it was not familiar enough with the evidence in question to make a more informed decision. We make note of this because the court's decision was a practical one, based largely on the prosecution's lack of opposition and not on careful consideration of the nature of the evidence.
During her testimony, Mother was asked if she knew in 2016 about any sexual abuse involving the girls. She said yes. The prosecutor then asked, "How did you find out about it?" to which she replied, "Ruben told me himself." The defense objected. At sidebar the parties noted this information was excluded by the court's in limine ruling. The prosecutor was expecting a different response because Mother testified earlier that she knew about the abuse from her daughter. The court denied the defense's motion for a mistrial but did strike the answer and admonish the jury to disregard it. Mother then testified her daughter told her about the abuse.
Nevarez challenges the trial court's denial of his motion for a mistrial. He characterizes Mother's statement that "Ruben told me" as a bombshell moment—incurably prejudicial in a close case that turned on credibility. The People frame it as a fleeting reference not likely to be understood as an admission by Nevarez that he molested the girls. In our view, neither party accurately evaluates this testimony in context.
Adopting the People's view would require us to ignore the plain meaning of Mother's statement. In responding directly to a question of how she knew about the sexual abuse, she said Ruben told her. Any juror who heard this would probably take it to mean Nevarez admitted to her that he sexually abused her daughters. Her statement to investigators supports this interpretation. In all likelihood, she meant what she said, and the jury understood her.
But this does not mean Nevarez was incurably prejudiced by a reference to such an admission. He relies on People v. Navarrete (2010) 181 Cal.App.4th 828 (Navarrete), a case where a testifying detective intentionally referenced the defendant's suppressed confession to explain why he never tested DNA swabs from the victim. (Id. at p. 833.) The reviewing court considered the impact of the detective's testimony in light of the scant evidence against the defendant as a whole and determined a mistrial should have been granted. (Id. at pp. 834-837.) Notably, the only evidence of Navarrete's guilt was the testimony of one witness and evidence of uncharged similar conduct 20 years earlier. (Id. at p. 834.)
This case differs from Navarrete in significant ways. The evidence establishing Nevarez's guilt was stronger. Rather than one percipient witness who saw a single incident of likely abuse, three witness-victims accused Nevarez of ongoing abuse over several years. Each of the children told at least one adult about their abuse while it was happening. Daughter 2 told a social worker and her mother, Son told a teacher, and Daughter 1 told her mother. That none of the adults with apparent power to protect them from Nevarez acted on their behalf explains their subsequent recantations. This behavior pattern was also described by the clinical psychologist as consistent with child victims who live with their abusers. Once they were free of Nevarez and living with other relatives, the children talked more freely about their abuse.
The single witness in Navarrete also had a more plausible motive to lie; there was an ongoing property dispute between her and the defendant. (Navarrete, supra, 181 Cal.App.4th at p. 834.) Here, in contrast, Nevarez offered no coherent rationale for why the children would concoct stories that he abused them. He suggested throughout the trial that they disliked him and wanted to live elsewhere, providing an incomplete explanation at best, especially since the children would have to be particularly conniving and vindictive to maintain their allegations after they no longer lived with him or their mother.
There was also stronger corroborating evidence of guilt in this case than in Navarrete. The children substantiated aspects of each other's accounts, and there was significant corroboration of Son's abuse from teachers who were concerned enough to call Child Protective Services. In a case that hinged on whether the jury believed Nevarez or the children, evidence corroborating Son's physical abuse also tends to support the conclusion Nevarez was generally abusive—rather than the involved, responsible, and always appropriate father figure he portrayed himself to be.
In addition to stronger indications of guilt, it must be noted that the defendant's suppressed confession in Navarrete stemmed from a constitutional violation not present here. The court in Navarrete conducted a full hearing on the issue, taking testimony from detectives as well independent witnesses, and concluded the defendant was not properly Mirandized. (Navarrete, supra, 181 Cal.App.4th at p. 831.) In contrast, the court made a practical ruling in this case to exclude an admission Nevarez made to Mother that was not extracted from him unlawfully; the comment may well have been admitted into evidence under other circumstances. Nevarez's statement is distinct from confessions made inadmissible by a constitutional violation. For this reason, we apply the harmless error standard from People v. Watson (1956) 46 Cal.2d 818 to assess prejudice, asking if a result more favorable to Nevarez was reasonably probable absent Mother's comment. (Id. at p. 836.) We conclude it was not. The jury believed the children. They convicted Nevarez of each count and found the allegations true. Considering the evidence as a whole, it is not reasonably probable the outcome of the trial would have been different without Mother's reference to Nevarez's statement.
2. Juror Issues
Nevarez takes issue with the court's decisions to retain Juror No. 11 after inquiring about bias and to dismiss Juror No. 10 due to a personal emergency. Generally, the court may dismiss a juror during a trial and substitute an alternate when it finds good cause to believe the dismissed juror is unable to perform his or her duties. (§ 1089.) The trial court must make "a reasonable inquiry" to determine if this is the case. (People v. Bell (1998) 61 Cal.App.4th 282, 287.) The decision is discretionary and will be upheld when there is a " 'demonstrable reality' " in the record that the juror could not perform their duties. (People v. Cleveland (2001) 25 Cal.4th 466, 474.) "The reviewing court must be confident that the trial court's conclusion is manifestly supported by evidence on which the court actually relied." (People v. Barnwell (2007) 41 Cal.4th 1038, 1053.)
Juror No. 11 stated during voir dire that his wife volunteers as a CASA—a Court Appointed Special Advocate. CASAs work on behalf of children who have suffered abuse or neglect. (Wel. & Inst. Code, §§ 102-103.) In San Diego, the nonprofit organization Voices for Children manages the CASA program. (In re Samuel G. (2009) 174 Cal.App.4th 502, 507, fn 2.) Before he was seated, Juror No. 11 said he could be a fair and impartial juror. On the fourth day of evidence, he wore a Voices for Children shirt. Juror No. 4 was familiar with the organization and sent a note to the court expressing concern that someone affiliated with CASA may not be impartial in a case like this. After discussing the note with the parties, the court spoke to both jurors.
Juror No. 4 was not aware that Juror No. 11 had advised the court of his connection to the CASA program during voir dire. He told the court he had not spoken with Juror No. 11 about the shirt, and the incident would have no effect on his ability to deliberate.
When the court questioned Juror No. 11 about the shirt, he referenced his earlier explanation during voir dire. The court recalled the juror's statement that his wife's work with CASA "wouldn't affect you either way, correct?" and the juror answered that was correct. Then the prosecutor asked if his ability to be fair had "changed at all based on the shirt you're wearing and what your wife does," to which Juror No. 11 replied, "It has not changed my ability to be fair and impartial." Later, the court considered and denied the defense's motion to excuse Juror No. 11, explaining, "I don't see any change that would show bias on Juror No. 11's part. He was up front from the beginning. It wasn't a good idea to wear the [shirt], but I don't think it is really demonstrative of bias."
In support of his claim of error, Nevarez cites cases of juror bias that are inapplicable—involving jurors who intentionally concealed material facts or were unable to truly deliberate due to personal views that should have been revealed during voir dire. The substance of his argument is that the court cannot rely on Juror No. 11's assurances of his impartiality because jurors are often unaware of their own bias. But if we agreed with Nevarez on this point, we would create a new standard where any indication of bias would outweigh a juror's word on the matter. This would undercut the trial court's unique capacity to weigh all the evidence before it in deciding whether demonstrable bias exists.
See People v. Keenan (1988) 46 Cal.3d 478, 533 [at least one juror in a capital case opposed the death penalty in all circumstances]; People v. Lomax (2010) 49 Cal.4th 530, 588 [capital case juror was opposed to the death penalty unless the crime involved a child]; People v. Diaz (1984) 152 Cal.App.3d 926, 931-936 [foreperson concealed that she was the victim of a knife attack in a case involving a knife assault]; People v. Price (1991) 1 Cal.4th 324, 399-400 [juror concealed his criminal past, including his history with a prosecution witness (his former probation officer) and the judge (his former prosecutor)].
Our high court has described the difficulties in assessing bias in a sitting juror, noting that often the juror in question will deny any bias and the trial court must weigh their representations against evidence to the contrary, "taking into account nuances" of juror testimony and "draw[ing] upon the observations it has made of the jurors during voir dire and the trial itself." (People v. Barnwell (2007) 41 Cal.4th 1038, 1053.) The record shows the trial court conducted just such an inquiry. The court investigated by discussing the shirt with Juror No. 4 and Juror No. 11 separately. It heard from counsel on the question of bias. It then weighed the only evidence tending to show bias—the juror's choice to wear a CASA shirt one day—against the countervailing consideration that Juror No. 11 was always forthcoming and reiterated his ability to be impartial. Based on these factors, the court concluded the evidence fell shy of a demonstrable reality supporting the juror's removal. We are satisfied the court's conclusion properly rested on the evidence before it.
The court dismissed Juror No. 10 for a different reason—his availability. Midway through the trial, Juror No. 10 left an evening voicemail explaining he could not come to court the following day because a plumbing issue in his neighbor's apartment caused a flood in his bathroom. The following day, the trial court discussed the situation with counsel and, over a defense objection, replaced Juror No. 10 with an alternate. The clinical psychologist was scheduled to testify that afternoon and was unavailable for the rest of the week.
Nevarez likens this situation to People v. Young (2017) 17 Cal.App.5th 451, a case where the court dismissed a juror who was 15 minutes late after speculating the juror might be stuck in traffic. (Id. at p. 461.) In disapproving of the trial court's decision, the Court of Appeal noted that trial proceedings that day had for unrelated reasons already been postponed, and the court took no reasonable steps to ascertain whether the absent juror would be able to perform his duties when trial resumed the following day. (Id. at p. 465.)
This case is not like Young. The court knew the reason for Juror No. 10's absence and concluded, based on the voicemail, that he was unable to fulfill his duty for a significant portion of the trial. No further inquiry was needed. A personal emergency such as a flood in the home constitutes good cause. Courts have routinely upheld the dismissal of jurors due to personal obligations and emergent circumstances, and we see no reason why a residential flood should be treated differently. (See People v. Bell (1998) 61 Cal.App.4th 282, 289 [no abuse of discretion when a juror was dismissed because of his son's medical emergency, even though juror might have returned in the afternoon]; see also People v. Hall (1979) 95 Cal.App.3d 299, 307 [no abuse of discretion when a juror was dismissed to accompany his wife to medical appointments].) We are confident the trial court based its dismissal of Juror No. 10 on the demonstrable reality that he could not perform his duties due to a personal emergency.
2. Instructional Error
Nevarez also claims the court erred when it did not instruct the jury that he had a parental right to punish Son. (CALJIC No. 3405.) To prevail on this defense, the parent's conduct must have been genuinely disciplinary, necessary, and reasonable—meaning not excessive. (In re D.M. (2015) 242 Cal.App.4th 634, 641.) Critically, however, a sua sponte duty to instruct on a defense "arises ' "only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case." ' " (People v. Maury (2003) 30 Cal.4th 342, 424.)
Clearly, Nevarez did not rely on the defense of parental discipline. More importantly, a theory of appropriate discipline would contradict his express representations that he never used corporal punishment on the children. Nevarez explained that because he was "not their father" he "couldn't touch them." He said he disciplined them by putting them in a corner, grounding them, taking a toy away, or restricting TV. He also testified their mother would spank and hit the children, implying that any discipline-related injuries they suffered were not by his hand. He cannot now assert the trial court was responsible to instruct on a theory he explicitly disavowed.
Nevarez maintains that even if the purported errors he identified do not individually warrant reversal, their cumulative effect does. But because we conclude there was at most one error—the mother's reference to Nevarez's admission that was harmless—there is nothing to aggregate. --------
DISPOSITION
The judgment is affirmed.
DATO, J. WE CONCUR: HALLER, Acting P. J. AARON, J.