Opinion
G057313
02-11-2020
THE PEOPLE, Plaintiff and Respondent, v. FELIPE REYES-CRUZ, Defendant and Appellant.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Daniel J. Hilton and Steve Oetting, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17HF1604) OPINION Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed in part and remanded with directions. Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Daniel J. Hilton and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Felipe Reyes-Cruz was convicted of four counts relating to the sexual molestation of victim L.R. (Pen. Code, §§ 288.7, subd. (b), 288, subd. (a).) On appeal, he contends the court improperly instructed the jury with CALCRIM No. 330 (No. 330), relating to the testimony of witnesses 10 years old or younger. He claims it is unconstitutional and asks us to reject numerous prior appellate court decisions which have concluded this contention lacks merit. We decline to do so.
Subsequent statutory references are to the Penal Code.
Reyes-Cruz further contends there was not substantial evidence of probable cause in the record to justify the trial court's order for him to submit to HIV testing. Based on the evidence on this issue, we agree, and pursuant to precedent, we shall remand the matter to the trial court to determine whether the prosecution has any additional evidence that would constitute probable cause.
The court put in place a no-visitation order as to the victim without reflecting an age limit. Reyes-Cruz asks us to direct the court to modify the order so it expires once the victim turns 18 years old. He also asks us to correct an issue with respect to the interest rate and the indication of statutory authority on a restitution order. The Attorney General substantively concedes these issues and we shall order the appropriate steps on remand.
I
FACTS
Because of the limited nature of the issues on appeal, we need not go into the facts in great detail; we briefly summarize the relevant facts instead.
During the time period pertinent to this case, Reyes-Cruz lived with Monica R. and her daughter, L.R. L.R. eventually told her mother and another adult that Reyes-Cruz had touched her vagina, chest, and/or buttocks on approximately 20 occasions, starting when she was in the third grade. L.R. had also felt Reyes-Cruz's penis against her on one occasion. L.R. was 10 years old when she testified.
Prior to living with Monica R., Reyes-Cruz had lived with M.S. and her family for many years. M.S., after learning of the abuse to L.R., told a therapist that Reyes-Cruz had touched her vagina over her clothes when she was in the first or second grade, and she could feel his erect penis against her back. M.S. estimated such conduct happened on approximately 10 occasions, with the last incident occurring when she was about nine years old.
There was a third victim, G.S. Reyes-Cruz lived with her family from the time she was four to nine years old. She stated that when she was six or seven years old, on one occasion she was playing with Reyes-Cruz in the living room, and he was swinging her in a circle. He then took her to the kitchen and set her on the floor, squeezing her vagina as he did so.
After L.R. came forward, a police investigation followed, which included a forensic interview with L.R. During a police interview which took place following advisement of his constitutional rights, Reyes-Cruz, after denying any misconduct, admitted touching L.R. with two fingers on two occasions.
An amended information charged Reyes-Cruz with two acts of sexual penetration of a child under the age of 10 (counts one and two, pertaining to L.R.) (§ 288.7, subd. (b)), and five counts of lewd touching upon a child under the age of 14 (counts three and four pertaining to L.R., counts five and six pertaining to M.S., and count seven pertaining to G.S.) (§288, subd. (a)).
It was further alleged that as to counts three and four Reyes-Cruz had substantial sexual contact with a victim under the age of 11 (§ 1203.066, subd. (a)(8)), and that as to counts three through seven, Reyes-Cruz had committed the offense against more than one victim (§§ 667.61, subds. (b), (c), and (e)).
In due course, the jury deadlocked as to counts five through seven, pertaining to M.S. and G.S. The jury found Reyes-Cruz guilty on counts one through four, pertaining to L.R., found the substantial sexual contact allegations true on counts three and four, and found the multiple victim enhancements not true.
The court sentenced Reyes-Cruz to an indeterminate term of 30 years to life, consisting of consecutive terms of 15 years to life on counts one and two. The court stayed sentence for counts three and four pursuant to section 654. Reyes-Cruz was also ordered by the court to complete HIV testing as directed by the Department of Corrections. The court further prohibited all visitation between Reyes-Cruz and L.R.
Reyes-Cruz now appeals.
II
DISCUSSION
CALCRIM No. 330
Reyes-Cruz's only substantive argument on appeal is that the trial court erred by instructing the jury with No. 330, because it improperly bolstered the credibility of the child witnesses, thereby violating his right to a jury trial, confrontation, due process, and the right to present a defense.
Only L.R. was under 11 years old when she testified. G.S. and M.S. were 16 and 18 years old, respectively.
Reyes-Cruz did not present any witnesses on his own behalf at trial.
As a preliminary matter, the Attorney General contends Reyes-Cruz forfeited this claim by failing to raise it in the trial court. Failure to object to an instruction generally forfeits the claim on appeal. (People v. Lucas (2014) 60 Cal.4th 153, 290-291 & fn. 51, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53-54, fn. 19.) This rule has been applied to an identical challenge to No. 330. (People v. Fernandez (2013) 216 Cal.App.4th 540, 559 (Fernandez).) But in Fernandez, the court exercised its discretion to address the merits in any event (ibid.), and we do the same.
No. 330 reads as follows:
"You have heard testimony from a child who is age 10 or younger. As with any other witness, you must decide whether the child gave truthful and accurate testimony.
"In evaluating the child's testimony, you should consider all of the factors surrounding that testimony, including the child's age and level of cognitive development.
"When you evaluate the child's cognitive development, consider the child's ability to perceive, understand, remember, and communicate.
"While a child and an adult witness may behave differently, that difference does not mean that one is any more or less believable than the other. You should not discount or distrust the testimony of a witness just because he or she is a child."
Reyes-Cruz takes issue with the first sentence of the final paragraph, which he claims "unintentionally suggests that a child witness's testimony should be treated differently than that of any other witness." Reyes-Cruz argues that No. 330 "tells the jury to ignore indications of impaired perception, understanding, and memory when evaluating the credibility of a child witness."
Reyes-Cruz admits that similar arguments about No. 330 have been rejected by numerous courts, and does not cite any case that has accepted them. The same is true of No. 330's predecessor, CALJIC No. 2.20.1. (People v. McCoy (2005) 133 Cal.App.4th 974, 979-980 (McCoy); People v. Jones (1992) 10 Cal.App.4th 1566, 1572-1574 (Jones); People v. Gilbert (1992) 5 Cal.App.4th 1372, 1392 (Gilbert); People v. Harlan (1990) 222 Cal.App.3d 439, 455-457 (Harlan).)
Fernandez, decided in 2013, is the most recent case to reject arguments regarding the invalidity of No. 330. (Fernandez, supra, 216 Cal.App.4th at p. 560.) The court concluded: "CALCRIM No. 330 simply instructs the jury to take into account a child's ability to perceive, understand, remember and communicate when making a credibility determination. It does not instruct the jury to subject a child's testimony to a less rigorous credibility determination, nor does it excessively inflate a child witness's credibility. We reject appellant's constitutional challenge to CALCRIM No. 330." (Ibid.)
Reyes-Cruz contends that "the present case is distinguishable" from earlier authority, but does not offer any distinguishable facts. Rather, he relies on People v. Dennis (1998) 17 Cal.4th 468, 527. In the context of an ineffective assistance of counsel claim for failing to request CALJIC No. 2.20.1, the court noted that although such attacks in Jones, Gilbert, and Harlan had been unsuccessful, "they were not so baseless and unreasonable as to render defense counsel's performance deficient for not requesting the instruction in this case." (Dennis, at p. 527.) To the extent Reyes-Cruz asks us to use this statement to call these authorities into doubt, we decline to do so.
Next, Reyes-Cruz asks us to find that Jones, Gilbert, Harlan, McCoy and Fernandez were wrongly decided. But he offers us no new or compelling justification to depart from these well-reasoned precedents, and we follow them here. No. 330 does not include any language that prohibits the jury from considering the child's demeanor in determining her credibility, and thus it is not reasonably likely the jury applied this instruction in a way that violated Reyes-Cruz's rights. The instruction only states that a child witness may not act like an adult when testifying, and that such differences between children and adults do not make the child more or less believable. The court did not err by instructing the jury with No. 330.
HIV Testing Order
Reyes-Cruz argues there was not probable cause to order him to undergo HIV testing (§ 1202.1), noting the trial court did not make an express finding of probable cause. While this issue is waived if a defendant did not make a timely objection in the trial court, the defendant may still challenge the sufficiency of evidence to establish probable cause. (People v. Stowell (2003) 31 Cal.4th 1107, 1110; People v. Butler (2003) 31 Cal.4th 1119, 1123.) This issue is not moot despite the fact that testing may already have occurred. (Id. at pp. 1128-1129.)
Based on this record, and the lack of any evidence that conduct occurred that would have exposed L.R. to blood or bodily fluids, we cannot find substantial evidence to support an implied probable cause determination. The Attorney General's best argument on this point seems to be that "if [Reyes-Cruz] had a cut on his finger, then L.R. was potentially exposed to any HIV virus [he] might have. Notably, after the touchings, L.R. felt a need to go to the bathroom and wipe herself off." But both of these points are speculative. (See People v. Cluff (2001) 87 Cal.App.4th 991, 1002.) There is simply no evidence in the record that Reyes-Cruz had a cut or testimony as to why L.R. felt such a need, and speculation alone is not evidence.
Without sufficient evidence of probable cause, the proper remedy is to remand the matter to the trial court to determine whether the prosecution has any additional evidence that would constitute probable cause, and we shall issue the appropriate instructions to the trial court. (People v. Butler, supra, 31 Cal.4th at p. 1129.)
Visitation Order
Reyes-Cruz next contends the no-visitation order must be limited to while L.R. is a minor. The Attorney General concedes the point, based on People v. Scott (2012) 203 Cal.App.4th 1303, 1313-1314. We agree and shall instruct the trial court to modify the no-visitation order accordingly.
Abstract of Judgment
Reyes-Cruz's final contention is that the abstract of judgment requires modification to reflect the statutory basis for the administrative fee for collecting on direct restitution, as well as the ordered amount. The court ordered Reyes-Cruz to pay $1,725 to the California Victim Restitution Board, and deferred ruling on direct restitution. With respect to all restitution, the court stated at the relevant hearing that: "interest will be paid on that restitution at the rate of $10,000 [sic] from the date of loss." The minute order from that hearing stated: "Pay restitution in the amount as determined and directed by Court as to count(s) 1, 2, 3, 4. Court orders 10% interest of judgment from date of loss. [¶] Court sets restitution amount at $1,725.00." The abstract of judgment states, after listing $1,725 as the amount of restitution, that Reyes-Cruz is to pay "an administrative fee not to exceed 15 percent of the restitution owed."
Reyes-Cruz states the trial court, in contravention of established authority, did not indicate a statutory basis for the fee attached to the restitution amount, nor does the minute order or abstract of judgment reflect one. Further, the court's oral statement suggests either a misstatement or mistranscription, because $10,000 is an amount, not a "rate" of interest. Generally, if there is a difference between an oral pronouncement and a minute order, the oral pronouncement is controlling. (People v. Mesa (1975) 14 Cal.3d 466, 471.)
The Attorney General concedes the error, but argues we should order the abstract of judgment corrected to reflect an interest rate of the statutory 10 percent to reflect the statutory authority for that amount of restitution.
Given the ambiguity in the transcript and the fact that we are remanding to correct the no-visitation order and determine the HIV testing issue, the correct remedy here is to permit the trial court to correct the order and abstract of judgment to resolve the interest rate issue and to indicate the appropriate statutory authority for its order.
III
DISPOSITION
The matter is remanded to the trial court with directions to: 1) limit the no-visitation order to reflect that it expires when L.R. turns 18 years old; 2) determine whether the prosecution has any additional evidence that would constitute probable cause sufficient to order HIV testing; 3) indicate the rate of interest on the restitution order; and 4) indicate the statutory authority for the fee attached to the restitution order.
In all other respects, the judgment is affirmed.
MOORE, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.