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People v. Pineda

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Feb 2, 2012
G044443 (Cal. Ct. App. Feb. 2, 2012)

Opinion

G044443 Super. Ct. No. 08HF1771

02-02-2012

THE PEOPLE, Plaintiff and Respondent, v. JOSE RAUL PINEDA, Defendant and Appellant.

Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Teresa Torreblanca and Barry Carlton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge. Affirmed.

Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Teresa Torreblanca and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.

Jose Raul Pineda appeals from a judgment after a jury convicted him of 20 sexual offenses against his nieces over an almost 10-year period. Pineda argues the trial court erroneously admitted evidence and there was cumulative error. We disagree and affirm the judgment.

FACTS

Pineda lived with his sister, her husband, and their three daughters, including A. H. and T. C. In 1998 or 1999 when A. H. was 11 or 12 years old, Pineda began molesting A. H. One evening A. H.'s cousin, Lourdes Torres, spent the night. Because A. H.'s mother did not expect Pineda home, she had A. H. and Torres sleep in Pineda's room. Later, A. H. awoke and found Pineda in bed with them. Pineda had his hands down her pants and was touching her vagina. Pineda put his finger inside A. H.'s vagina. A. H. was in shock but tried to move to wake up Torres, but she did not wake up. Approximately 10 to 15 minutes later, Pineda got up and left. About 10 minutes later, Pineda returned to the room and touched her vagina again. Pineda continued to molest A. H. for about two years, until she got pregnant. He grabbed her breasts and buttocks and licked her breasts; this occurred at least three times. A. H. did not tell anyone because Pineda was well liked and she feared no one would believe her.

A. H. was 23 years old at the time of trial.

Pineda and Greicy Pineda (Greicy) were married in 1999 and she moved in with Pineda and his sister's family. The next year, Pineda and Greicy moved out.

In 2001, when T. C. was eight years old, Pineda began molesting T. C. One day, Pineda stopped at his sister's home on his lunch break while T. C. was home alone. Pineda sat on the couch next to T. C., put his arm around her, and touched her breasts and then her vagina. T. C. resisted but Pineda continued. Pineda told T. C. not to tell anyone because it would ruin the family and his son would be taken away from him. Pineda continued to molest T. C. for the next seven years. Generally, Pineda forced T. C. to watch pornographic movies and recreate the scenes. Pineda performed oral sex on T. C. and forced T. C. to perform oral sex on him; this happened at least once a month against her will. Pineda also put his finger inside her vagina; this happened at least once a month against her will. He also put his finger in her anus. On one occasion, Pineda ejaculated on T. C.'s leg. Pineda stopped molesting T. C. when she was approximately 14 or 15 years old.

T. C. was 17 years old at the time of trial.

In May 2008, T. C. told her parents she did not want to go to a family party because Pineda had abused her. Her parents did not believe her and insisted she go. At the party, T. C. sat in a corner and read. A. H., T. C., and Torres left the party. As they drove to Torres's home, Torres spoke favorably of Pineda. T. C. said she hated Pineda. At Torres's house, in the presence of A. H., Torres, and Torres's mother and younger sister, T. C. said Pineda had touched her. A. H. hugged T. C. and said, "[M]e, too. Me, too." Torres's older sister called the police the next day.

An amended information charged Pineda with the following: A. H.—lewd act upon a child under 14 (Pen. Code, § 288, subd. (a)) (count 1), and continuous sexual abuse (§ 288.5, subd. (a)) (count 2); and T. C.—lewd act upon a child under 14 (§ 288, subd. (a)) (count 3), continuous sexual abuse (§ 288.5, subd. (a)) (count 4), 16 counts of aggravated sexual assault of a child (§ 269, subd. (a)(4), (5)) (counts 5-20), and attempted lewd act upon a child (§§ 664, subd. (a), 288, subd. (c)(1)) (count 21). As to counts 1, 2, 3, and 4, the amended information alleged Pineda committed the offenses against more than one victim (§ 667.61, subds. (b), (e)(5)).

All further statutory references are to the Penal Code, unless otherwise indicated.

Before trial, the prosecutor moved to admit evidence of an uncharged offense concerning Torres pursuant to Evidence Code sections 1101, subdivision (b), and 1108. After an off the record discussion, the trial court stated Pineda objected to admission of the evidence and tentatively ruled the evidence was admissible pursuant to Evidence Code section 1101, subdivision (b), as to motive and intent, and Evidence Code section 1108. The court ruled, however, that evidence Pineda looked at Torres in a "perverted" manner and what Torres thought Pineda was going to do to her was inadmissible. After an Evidence Code section 402 hearing at which Torres testified, the court repeated its tentative ruling. Defense counsel objected to admission of Torres's testimony, arguing it was vague, unduly prejudicial, and violated his due process rights. The court ruled Torres's testimony about what happened, including that Pineda looked at her in a "weird" way, and how she felt was admissible because "there was an attempt to do a touching." The court reminded the prosecutor of the evidence it previously ruled inadmissible.

At trial, 23-year-old Torres testified Pineda is her cousin, and A. H. and T. C. are her second cousins. Torres testified she could not remember an evening when she spent the night at A. H.'s house and Pineda got into bed with her and A. H. She explained that on the night of the family party after T. C. told them Pineda molested her, "[T. C.] looked relieved." She said that when A. H. hugged T. C., A. H. was crying. The prosecutor asked Torres whether the event seemed "staged," and the trial court sustained defense counsel's vagueness objection. When the prosecutor asked Torres whether there was anything that happened that seemed insincere or fake, the court overruled defense counsel's objection. Torres asked the prosecutor to repeat the question. The prosecutor asked, "Was there anything about how the whole thing unfolded, T. C. and A. H. coming forward like that, based on your knowledge was there anything about that that seemed like they were making it up when they said it or insincere about it?" Torres replied, "No." Torres explained that when she was 15 or 16 years old, she was at home on her parents bed watching television when Pineda walked into the bedroom. Torres stated, "He just looked at me weird. I felt just uncomfortable." Torres said Pineda moved towards her and tried to grab her. She stated, "'[D]on't touch me or I'm going to call the cops[.]'" Torres said Pineda left.

Pineda testified on his own behalf. Pineda denied he touched A. H. or T. C. and denied the incident with Torres occurred; he would have remembered if Torres threatened to call the police and report him. Pineda stated he contributed financially to the family, babysat the girls, and picked them up from school. He said that after he married Greicy, they eventually moved out because there was animosity between Greicy and his sister's family. Pineda admitted he insulted A. H. but claimed it was a joke. He also conceded to making a comment about A. H. when she was wearing the bathing suit but again claimed it was a joke. He denied owning any pornographic movies but conceded they were available on cable television. Pineda testified he had no sexual interest in children. On cross-examination, Pineda admitted the nature of his work permitted him to visit his sister's house during the day. He again denied the incident with Torres occurred. Pineda could not think of any reason why A. H., T. C., or Torres would accuse him of these things.

Pineda's wife, Greicy, also testified on his behalf. Greicy explained she had a good relationship with A. H. and T. C. and they seemed happy and healthy. She did not often see Pineda with A. H. and T. C., and they did not appear to be upset when they were with Pineda and there was no indication anything was wrong between them and Pineda. Greicy stated that on one occasion, Pineda insulted A. H., who was wearing a bathing suit, and A. H. slapped Pineda; Greicy told A. H. not to slap Pineda. Greicy said Pineda was honest and did not have a sexual interest in young girls.

Pineda also offered the testimony of character witnesses who testified generally to his truthfulness. These family and friends testified they never saw Pineda act inappropriately towards A. H. or T. C., they never saw A. H. or T. C. act frightened around Pineda, and they never saw Pineda express a sexual interest in children. Four of the witnesses testified Pineda had never tried to touch them inappropriately and one of the witnesses testified she would trust Pineda to care for her daughter.

The officer who took T. C.'s initial statement also testified for Pineda. His testimony included a detailed account of the first incident with T. C. Additionally, defense counsel elicited testimony from him highlighting inconsistencies and exaggerations in T. C.'s testimony, including that Pineda had molested her 20,000 times and he threatened to kill her.

Finally, Pineda offered the testimony of T. C.'s ex-boyfriend and a defense investigator to support his defense T. C. fabricated the story to develop a bond with a boy who had also been abused. He testified T. C. told him Pineda raped her and that other people watched him molesting her.

During the defense's case-in-chief, the trial court dismissed count 21 on the prosecutor's motion. The jury convicted him of all counts and found true the allegations. At the sentencing hearing, the trial court vacated the jury's true findings on the section 667.61 allegations as to counts 2 and 4. The trial court sentenced Pineda to prison for a total term of 135 years to life.

DISCUSSION

I. Uncharged Offense Evidence

Pineda argues the trial court erroneously admitted uncharged offense evidence regarding Torres under both Evidence Code sections 1108, and 1101, subdivision (b). He also contends admission of the evidence violated his federal constitutional rights. None of his contentions have merit.

Evidence of an uncharged offense is generally inadmissible to prove criminal disposition. (Evid. Code, § 1101, subd. (a); People v. Kipp (1998) 18 Cal.4th 349, 369.) However, Evidence Code section 1101, subdivision (b), allows the trial court to admit "evidence that a person committed a crime . . . or other act when relevant to prove some fact (such as motive, . . . intent, . . .) other than his or her disposition to commit such an act."

Additionally, Evidence Code section 1108, subdivision (a), states, "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] [s]ection 1101, if the evidence is not inadmissible pursuant to [Evidence Code] [s]ection 352." (Italics added.) Evidence Code section 1108, subdivision (d)(1), defines "'sexual offense'" as "a crime under the law of a state or of the United States that involved any of the following . . . ." (Italics added.) One of those crimes is a sexual battery (§ 243.4, subd. (e)(1)). (Evid. Code, § 1108, subd. (d)(1)(A).) An attempt to commit a sexual battery suffices. (Evid. Code, § 1108, subd. (d)(1)(F).) Evidence of uncharged conduct need only be proved by a preponderance of the evidence. (People v. Reliford (2003) 29 Cal.4th 1007, 1015.)

Although uncharged offense evidence might be relevant, this evidence is subject to exclusion pursuant to Evidence Code section 352. Evidence Code section 352 authorizes the trial court to "exclude evidence if its probative value is substantially outweighed by the probability" its admission will create a substantial danger of undue prejudice. For purposes of Evidence Code section 352, "prejudice" means "'evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. [Citation.]'" (People v. Heard (2003) 31 Cal.4th 946, 976.) We review the trial court's evidentiary rulings for an abuse of discretion.

Here, because Pineda was prosecuted for numerous sexual offenses and the uncharged offense evidence concerned an attempted sexual offense, we will begin by discussing Evidence Code section 1108. We will then address his other contentions.

A. Evidence Code section 1108

In People v. Harris (1998) 60 Cal.App.4th 727, 737-741, the court articulated the following factors to determine whether evidence of prior sexual acts was properly admitted pursuant to Evidence Code section 1108: (1) the probative value of the evidence; (2) the inflammatory nature of the evidence; (3) the possibility of confusion of the issues; (4) the amount of time involved in introducing and refuting the evidence of uncharged offenses; and (5) remoteness in time of the uncharged offenses. 1. Relevance

"[E]vidence of a 'prior sexual offense is indisputably relevant in a prosecution for another sexual offense.' [Citation.]" (People v. Branch (2001) 91 Cal.App.4th 274, 282-283 (Branch).) "The charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in [Evidence Code] section 1108." (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41, fn. omitted (Frazier).) However, "if the prior offenses are very similar in nature to the charged offenses, the prior offenses have greater probative value in proving propensity to commit the charged offenses." (Branch, supra, 91 Cal.App.4th at p. 285.)

Pineda claims: (1) there was insufficient evidence as a matter of law to establish by a preponderance of the evidence he attempted to commit a sexual battery on Torres; and (2) the uncharged offense evidence was irrelevant. Neither contention has merit.

As to his first claim, the elements of an attempted sexual battery are as follows: (1) the defendant touched an intimate part of the victim; (2) the touching was against the victim's will; (3) the defendant touched the victim with the specific intent to cause sexual arousal, sexual gratification or sexual abuse; and (4) there was a direct but ineffectual act towards the commission of the sexual battery. (§§ 664, subd. (a), 243.4, subd. (e)(1).) The evidence at trial established Torres was alone on her parents' bed watching television when Pineda reached towards her and tried to grab her. When Torres threatened to call the police, Torres left. Evidence Pineda tried to grab a young girl who was home alone in a secluded bedroom and fled when threatened with being reported to the police was sufficient evidence as a matter of law for the jury to conclude based on a preponderance of the evidence that Pineda attempted to commit a sexual battery.

We note the Attorney General asserts there was sufficient evidence the uncharged offense constituted a violation of section 647.6, annoying or molesting a child. But that is not what the trial court instructed the jury on and it is disingenuous to now argue the jury could conclude he committed that offense.

Pineda complains his conduct was innocuous and perhaps he was trying to hug Torres and that there was no evidence "he was reaching toward some sexual part of [Torres's] body." It is for the jury to decide whether the prosecutor has established by a preponderance of the evidence whether Pineda committed the uncharged offense.

Pineda states the Attorney General concedes the conduct was innocuous. The Attorney General actually stated, "Since [Torres's testimony] addressed that very point, and, yes, in fairly innocuous fashion (given that no sexual contact actually resulted) . . . ."
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With respect to his second claim, evidence Pineda attempted to commit a sexual battery on Torres was certainly relevant to the charges here. First, an attempted sexual battery is a sexual offense as defined by Evidence Code section 1108, and thus, is relevant in a prosecution of sexual offenses. Second, the uncharged offense was similar to some of the charged offenses in that Pineda preyed on young female family members who were at home and vulnerable. Evidence Pineda tried to touch Torres tended to prove he had a propensity to commit sexual offenses against young female family members.

Pineda relies on People v. Earle (2009) 172 Cal.App.4th 372 (Earle), to argue an attempted sexual battery is not relevant to the offenses charged here: lewd act, continuous sexual abuse, and aggravated sexual assault. In Earle, the court considered the issue of joinder of an indecent exposure case with an assault case. (Id. at p. 385.) In that case, the majority opinion stated Evidence Code section 1108 would certainly permit admission of uncharged offense evidence of an indecent exposure in a prosecution for indecent exposure. (Id. at p. 397.) The court explained, "However, the statute cannot infuse an uncharged offense with relevance or probative value it cannot rationally be found to possess." (Ibid.) The court concluded, "But a propensity to commit one kind of sex act cannot be supposed, without further evidentiary foundation, to demonstrate a propensity to commit a different act." (Id. at p. 399.)

Earle is distinguishable as in that case the majority opinion concluded the propensity to expose oneself does not tend to establish the propensity to commit a sexual assault. Here, as we explain above, evidence one has a propensity to try to touch a young female family member does tend to establish one has a propensity to commit lewd acts and aggravated sexual assaults on young female family members and continually sexually abuse young female family members. The uncharged offense evidence was relevant.

2. Inflammatory

In Harris, the court, relying on People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt), "deemed it important in evaluating prior uncharged acts pursuant to [Evidence Code] section 352, whether '[t]he testimony describing the defendant's uncharged acts . . . was no stronger and no more inflammatory than the testimony concerning the charged offenses.'" (Harris, supra, 60 Cal.App.4th at pp. 737-738.) Pineda concedes the uncharged offense evidence was less inflammatory than A. H.'s and T. C.'s testimony concerning the offenses. We agree. Evidence Pineda attempted to commit a sexual battery against Torres would not tend to evoke an emotional bias against Pineda compared to the evidence he repeatedly touched A. H. and T. C. and put his finger in their vaginas.

3. Confusion of the Issues

It is possible the risk of juror confusion may increase when uncharged offenses are introduced as evidence. "If the prior offense did not result in a conviction, that fact increases the danger that the jury may wish to punish the defendant for the uncharged offenses and increases the likelihood of confusing the issues 'because the jury [has] to determine whether the uncharged offenses [in fact] occurred.' [Citation.]" (Branch, supra, 91 Cal.App.4th at p. 284.) "This risk, however, is counterbalanced by instructions on reasonable doubt, the necessity of proof as to each of the elements of a lewd act with a minor, and specifically that the jury 'must not convict the defendant of any crime with which he is not charged.'" (Frazier, supra, 89 Cal.App.4th at p. 42.)

The uncharged offense evidence concerned one victim, not involved in the charged offenses, on one occasion. Additionally, any remaining risk of confusion was sufficiently countered by the trial court's instructions. The trial court instructed the jury on the elements of the charged offenses, reasonable doubt, and the proper use of evidence of prior sexual offenses. Contrary to Pineda's assertion, the uncharged offense evidence did not confuse the jury by injecting the issue of "'sexual intent'" into those offenses that did not require a specific intent. We presume jurors are intelligent people capable of understanding the instructions and applying them to the facts of the case. (People v. Carey (2007) 41 Cal.4th 109, 130.) Moreover, Pineda points to no place in the record, and we found none, where he objected to the jury instructions. There is nothing in the record to indicate the jury was confused by Torres's testimony. (Branch, supra, 91 Cal.App.4th at p. 284.) Finally, it is unlikely the jury would be tempted to punish Pineda for the uncharged offense evidence as it was an attempt to commit a sexual battery, which paled in severity to the charged offenses.

4. Amount of Time

"Conceivably a case could arise in which the time consumed trying the uncharged offenses so dwarfed the trial on the current charge as to unfairly prejudice the defendant . . . and we cannot say spending less than a third of the total trial time on these issues was prejudicial as a matter of law." (Frazier, supra, 89 Cal.App.4th at p. 42 [uncharged offense evidence that comprised 27 percent of the total trial transcript did not consume an unreasonable amount of time].) Pineda does not contend admission of Torres's testimony consumed too much time. Indeed, her testimony on this point consists of approximately seven pages of reporter's transcript, and required four additional jury instructions.

5. Remoteness

"Remoteness of prior offenses relates to 'the question of predisposition to commit the charged sexual offenses.' [Citation.] In theory, a substantial gap between the prior offenses and the charged offenses means that it is less likely that the defendant had the propensity to commit the charged offenses." (Branch, supra, 91 Cal.App.4th at p. 285.) "No specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible. [Citation.]" (Id. at p. 284.) Courts have found previous sexual offenses up to 30 years old not to be so remote in time as to preclude admission where the prior sexual misconduct and the charged offenses are similar. (Branch, supra, 91 Cal.App.4th at pp. 284-285 [30-year gap between offenses was not remote where prior and current offenses "remarkably similar"].)

Pineda does not contend Torres's testimony concerning the uncharged offense was too remote. Indeed, it happened between approximately seven years before the trial. We cannot conclude seven years was too remote to weigh in favor of excluding the uncharged offense evidence. Therefore, based on the Harris factors, the trial court properly admitted Torres's testimony regarding the uncharged offense pursuant to Evidence Code section 1108.

B. Evidence Code section 1101, subdivision (b)

Pineda contends the uncharged offense evidence was not admissible under Evidence Code section 1101, subdivision (b), on the issue of intent and motive because it was too speculative. Not so.

"'The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.' [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 22 (Lindberg).) Other acts evidence is relevant where the other acts evidence and the charged offense are sufficiently similar. (Ewoldt, supra, 7 Cal.4th at pp. 401-402.) The least degree of similarity is required to prove intent. (Id. at p. 402.)

As we explain above, evidence Pineda tried to touch Torres tended to prove he had a propensity to commit sexual offenses against young female family members. The fact Torres prevented Pineda from accomplishing his intended goal does not make the uncharged offense evidence any less relevant. Additionally, the uncharged offense was similar to some of the charged offenses in that Pineda preyed on young female family members who were at home and vulnerable. Finally, as we also explain above more fully, evidence he tried to touch Torres would not evoke an emotional bias against Torres.

Pineda relies on People v. Balcom (1994) 7 Cal.4th 414, to argue the issue was whether the sexual acts occurred, and if the jury concluded they did, "there is little question [they were] done with the requisite intent whether general or specific." In Balcom, defendant conceded he engaged in sexual intercourse with the victim but denied he used a gun, claiming the victim consented. (Id. at p. 422.) The court recognized defendant's not guilty plea placed "in issue all of the elements of the offenses, including his intent [citation]," and evidence of prior similar rapes "would have some relevance regarding defendant's intent in the present case." (Id. at pp. 422-423.) The court stated: "'Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. "In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it." [Citation.]' [Citation.] In the present case, however, if the jury found that defendant committed the act alleged, there could be no reasonable dispute that he harbored the requisite criminal intent. [Citation.]" (Id. at p. 423.)

Balcom is inapposite. Here, Pineda pled not guilty to all the offenses, and thus placed all the elements of the offenses at issue. As Pineda concedes, counts 1 and 3 required the jury to find he had the "intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child[.]" (§ 288, subd. (a).) And counts 2 and 4 required the jury to find in relevant part that Pineda engaged in three or more acts of substantial sexual conduct or lewd and lascivious conduct with a child. Lewd and lascivious conduct includes the requirement the touching be "with the intent to sexually arouse the perpetrator or the child." (§ 288.5, subd. (a).) Contrary to Pineda's claim, the uncharged offense evidence was not admitted solely to bolster A. H.'s and T. C.'s credibility. (People v. Bunyard (1988) 45 Cal.3d 1189, 1207, fn. 7.)

C. Federal Constitutional Rights

Pineda asserts Torres's testimony denied him his federal constitutional rights to due process and to confront his accusers. Neither claim has merit.

First, the California Supreme Court has "long observed that '[a]pplication of the ordinary rules of evidence generally does not impermissibly infringe on a[ ] defendant's constitutional rights.' [Citation.]" (Lindberg, supra, 45 Cal.4th at p. 26.) Further, the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. (Estelle v. McGuire (1991) 502 U.S. 62, 70; People v. Falsetta (1999) 21 Cal.4th 903, 913.) As we explain above more fully, the trial court properly admitted the uncharged offense evidence pursuant to Evidence Code sections 1108, and 1101, subdivision (b). And the trial court properly instructed the jury on the permissible use of uncharged offense evidence. (CALCRIM Nos. 375, 1191.) Pineda has not established fundamental unfairness.

Second, we are not persuaded Pineda's defense counsel was prevented from cross-examining Torres because her testimony was too speculative. We agree with the Attorney General that if in fact defense counsel thought Torres's testimony speculative, defense counsel was free to cross-examine her on this issue, along with her memory of the event and whether she was testifying truthfully. Therefore, the trial court properly admitted the uncharged offense evidence pursuant to Evidence Code sections 1108, and 1101, subdivision (b).

II. A. H.'s and T. C.'s Demeanor

Pineda argues Torres's testimony concerning A. H.'s and T. C.'s demeanor was irrelevant, speculative, and constituted improper vouching in violation of his federal constitutional rights. Recognizing his defense counsel only objected on the grounds the testimony was speculative, alternatively, Pineda argues his counsel was ineffective for failing to object on the other grounds. The Attorney General contends Pineda forfeited appellate review of this issue and his claim is meritless.

First, Pineda only objected to the complained of testimony on the grounds it was speculative. Thus, any objection to admission of the testimony on the grounds it was improper vouching or lay opinion is forfeited. (People v. Alexander (2010) 49 Cal.4th 846, 905.) Thus, we will address his claim within the context of his ineffective assistance of counsel claim.

"In order to establish a violation of the right to effective assistance of counsel, a defendant must show that counsel's performance was inadequate when measured against the standard of a reasonably competent attorney, and that counsel's performance prejudiced defendant's case in such a manner that his representation 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' [Citations.] Moreover, 'a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.' [Citation.] Prejudice is shown when there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.] If defendant fails to show that he was prejudiced by counsel's performance, we may reject his ineffective assistance claim without determining whether counsel's performance was inadequate. [Citation.]" (People v. Sanchez (1995) 12 Cal.4th 1, 40-41, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

Here, there is not a reasonable probability the result of the proceedings would have been different had Torres not been permitted to testify it did not appear A. H. and T. C. were fabricating their stories. Although T. C. initially gave conflicting stories and exaggerated the number of times Pineda molester her, both T. C. and A. H. provided detailed testimony concerning the molestations. Indeed, Pineda does not bother to argue insufficient evidence supports any of his convictions. That Torres testified it did not appear to her they were fabricating their stories would likely have little persuasive value to the jury. Torres's testimony that after T. C. told her family Pineda touched her inappropriately and A. H. gave her a hug and they both cried told the whole story. Any additional explanation was unnecessary.

III. Cumulative Error

Pineda contends the cumulative effect of the errors requires reversal. We have concluded there were no errors, and thus, his claim has no merit. To the extent there were any errors, we conclude Pineda was not prejudiced as there is no reasonable probability the result of the proceedings would have been different.

DISPOSITION

The judgment is affirmed.

O'LEARY, ACTING P. J. WE CONCUR: MOORE, J. IKOLA, J.


Summaries of

People v. Pineda

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Feb 2, 2012
G044443 (Cal. Ct. App. Feb. 2, 2012)
Case details for

People v. Pineda

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOSE RAUL PINEDA, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Feb 2, 2012

Citations

G044443 (Cal. Ct. App. Feb. 2, 2012)