Opinion
B224354
10-11-2011
THE PEOPLE, Plaintiff and Respondent, v. KOCKI ROJAS, Defendant and Appellant.
Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KA088976)
APPEAL from a judgment of the Superior Court of Los Angeles County. George Genesta, Judge. Affirmed.
Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Kocki Rojas of two counts of violating Penal Code section 288, subdivision (b)(1) and three counts of violating Penal Code section 288.7, subdivision (b)(7). The charges stemmed from appellant's repeated sexual abuse of his girlfriend's daughter, M.L. On appeal, appellant contends that his Sixth Amendment right to confrontation was violated by the admission of a taped interview of M.L., and that his 57 years to life sentence was an abuse of discretion and amounted to cruel and unusual punishment. We affirm.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 2006, appellant moved in with his girlfriend M.L. (Mother) and her seven-year-old daughter M.L. Shortly thereafter, Mother gave birth to appellant's son, William. They moved into "apartment C" in April 2007 and later into "apartment A" in December 2008.
Sometime in 2006 or 2007, after William was born, appellant first abused M.L. One day in early summer, before school was out, when the family was living in apartment C, appellant touched M.L.'s arms and legs and then rubbed his hands under her shorts. One or two weeks later, during an afternoon when Mother was at work, appellant grabbed M.L., pulled her into the bedroom and lifted up her shirt to suck on her breast area. M.L. was crying and screamed for him to stop. Appellant abused M.L. in this manner at least 10 more times, even though M.L. each time asked him to stop. Appellant would hold M.L.'s hands down so she could not push him away, and on one occasion punched her in the arm because she was holding onto the couch while he dragged her toward the bedroom. M.L. did not tell anyone about the abuse because she was scared; appellant told her that if she told anyone what he had done he would take her brother away.
Appellant first touched M.L.'s vagina when she was eight years old. Appellant took M.L. into the bedroom and locked the door while William watched cartoons in the living room. He threw her onto the bed, pulled off her jeans and underwear and orally copulated her while she was crying and screaming; he grabbed her knees "hard" when she tried to kick him. Appellant again threatened to take William away if M.L. told anyone about the incident.
While they were still living in apartment C, appellant called M.L. in from outside, pulled her into the bedroom, and inserted his finger into her vagina, telling her that he wanted to "check" her. On other occasions, appellant forced M.L. down onto the bed, held her there and inserted his finger into her vagina.
Two days after moving into apartment A, appellant sucked on M.L.'s breast area. M.L. tried to run away, but appellant threatened to hit her with a belt if she did not comply. A few days later, appellant pulled down his shorts and underwear and pulled M.L.'s hair to attempt to force her to orally copulate him. When she refused, appellant became angry and punched her on the arm. About one or two weeks before M.L.'s tenth birthday, appellant again forcibly orally copulated her. He became angry and punched her leg when she tried to kick him.
In July 2009, while Mother was away from home for four days performing community service for a traffic ticket, appellant sucked on her breast area during the first day. M.L. was crying and tried to run out to the next room where her aunt was, but appellant told her if she left he would either take William away or hit her. On the third day, he orally copulated her. On the fourth day, he digitally penetrated her while she was sleeping.
Sometime after M.L. turned 10, appellant locked her in the bedroom and forced her to rub his penis with her hands. He held a belt in one hand. After about three minutes, M.L. saw a "kind of white thing" starting to come out of his penis. Appellant made her do this approximately four times. On another occasion, while Mother was either at work or on an errand, appellant forced M.L. to orally copulate him, which made her feel like she was going to throw up.
In the fall of 2009, after the family had moved to another home, appellant digitally penetrated M.L. Sometime later, when appellant forced M.L. into his car to go to the grocery store, appellant told her he thought she was not a virgin and, while punching her, demanded to know who had taken her virginity. He said he had wanted to be the first. Though she initially denied losing her virginity, she eventually made up a story that a boy had forced her to have sex because she wanted appellant to stop punching her. Appellant said he would beat the boy up, and then pulled M.L.'s hair and forced her to orally copulate him. M.L. was crying when she got home, but lied to Mother about why she was crying.
M.L. never traveled in a car alone with appellant again. On December 7, 2009, when Mother had asked appellant to drive M.L. to school, M.L. was crying and finally told Mother that she did not want to go with him. When Mother asked why not, M.L. said to appellant to tell Mother what he had done to her and that was the reason she did not want to go with him. Appellant told Mother not to listen to M.L. and accused M.L. of being sexually active with other boys. When it became clear that Mother did not believe appellant, he told her he was leaving and would fight for custody of William.
When appellant left, M.L., crying, told Mother about many of the things that appellant had done to her; Mother said she had expected to hear anything except that. M.L. told her about the recent trip to the grocery store and what happened when Mother performed community service; she also described how appellant had touched her with his fingers and mouth. Mother called the police.
Pomona Police Officer Rolando Betancourt responded to the call. When he arrived, both Mother and M.L. were emotionally upset and crying; he could see that M.L.'s "physical being was shaken." Officer Betancourt talked to Mother first, and then asked M.L. a series of questions. He spoke with M.L. for several hours; she was crying and needed to take breaks at various points. She described an incident that occurred in June 2007 in which appellant took her into the bedroom, telling her that he wanted to "check" her, and pulled down her pants and inserted his finger into her vagina. M.L. said that appellant told her he would take away her little brother if she ever told anyone about that incident or others.
M.L. also described other incidents of sexual abuse that occurred in July 2009 while Mother was performing community service. She said that on the first day he inserted his finger into her vagina (which she described as her "private part"); on the second day he sucked on her breast area; on the third day he again sucked on her breast area and rubbed her vagina; and on the last day he exposed himself and orally copulated her. She described a separate incident where appellant forced her to touch his penis. According to Officer Betancourt, M.L. "said he directed her to grab his private part with both her hands and to move her hands in an upward-downward motion while holding his private part." She described another incident where appellant orally copulated her while Mother was at the store. She told Officer Betancourt about the conversation where appellant had said he wanted to be the one to take away her virginity. She also described several incidents where appellant touched her against her wishes and unsuccessfully attempted to molest her. M.L. believed that she told Officer Betancourt everything that had happened, except for the time when appellant made her suck his penis because that made her uncomfortable.
By the time of trial, Officer Betancourt had independently confirmed the dates of Mother's community service.
An information filed on February 11, 2010 by the Los Angeles County District Attorney charged appellant in counts 1 and 5 of a forcible lewd act on a child (§ 288, subd. (b)(1)) and in counts 2, 3 and 4 of oral copulation/sexual penetration with a child age 10 or younger (§ 288.7, subd. (b)). Appellant pled not guilty.
Trial commenced in April 2010. Appellant did not put on a defense. His counsel argued that M.L. fabricated everything. The jury found appellant guilty on all five counts.
The trial court denied probation and sentenced appellant to a total term of 57 years to life, comprised of 15 years to life on the base term of count 2; two consecutive terms of 15 years to life on counts 3 and 4; and consecutive mid-terms of six years each on counts 1 and 5. The trial court further ordered appellant to pay several fees and fines, to submit to an AIDS test and to register as a sex offender. Appellant received 166 days of presentence custody credit.
This appeal followed.
DISCUSSION
Appellant challenges his conviction, raising one evidentiary issue and two sentencing issues. We find no merit to his contentions.
I. The Trial Court Properly Admitted a Videotaped Interview of the Victim.
At the Children's Assessment Center (CAC), Veronica Cardona conducted a videotaped interview of M.L. on December 15, 2009. M.L. described multiple incidents of abuse by appellant in a manner similar to how she described them to Officer Betancourt. Following M.L.'s cross-examination, the prosecution sought to introduce the CAC interview in its entirety as evidence of prior consistent statements according to Evidence Code sections 791 and 1236. The prosecution also sought admission of the CAC interview pursuant to Evidence code section 356, arguing that the portions of the interview read by defense counsel during cross-examination were taken out of context.
Evidence Code section 791 provides: "Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [¶] (a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or [¶] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen." In turn, Evidence Code section 1236 provides: "Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791."
Evidence Code section 356 provides in pertinent part: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party . . . when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence."
Over appellant's objection, the trial court allowed the CAC interview to be played for the jury. Reminding appellant that its preliminary ruling had been that the prosecution was not automatically entitled to admission of the interview, the trial court ruled that appellant had opened the door to use of the interview as a prior consistent statement by reading a portion of the interview during M.L.'s cross-examination and suggesting that her statements to Cardona were more accurate than her trial testimony. It determined that the jury was entitled to listen to the entire CAC interview, both as evidence of prior consistent or inconsistent statements and to put the portions already read into context. The trial court added that the CAC interview was neither misleading nor an undue consumption of time within the meaning of Evidence Code section 352.
Immediately before the CAC interview was played for the jury, appellant reiterated his prior objections and added an objection based on his Sixth Amendment right to confrontation, arguing that he would be deprived of his right to cross-examine the interviewer, Cardona. The trial court found no merit to the new objection, noting that the interviewer was not a witness providing testimony, and that, in any event, both Cardona and M.L. were available to be examined by appellant. The trial court also confirmed that the CAC interview was admissible pursuant to Evidence Code sections 356, 791 and 1236. (See, e.g., People v. Williams (2002) 102 Cal.App.4th 995, 1011, 1012 [videotaped interview of witnesses properly admitted pursuant to Evid. Code, §§ 791 and 1236 where the defense implied during cross-examination that witnesses had fabricated portions of their trial testimony].)
On appeal, appellant renews his argument that the admission of the CAC interview violated his Sixth Amendment right "to be confronted with the witnesses against him . . . ." (U. S. Const., 6th Amend.; see also Cal. Const., art. 1, § 15.) Though we typically review evidentiary rulings for an abuse of discretion (e.g., People v. Martinez (2000) 22 Cal.4th 106, 120), we independently review whether evidence was admitted in violation of the right to confrontation (People v. Seijas (2005) 36 Cal.4th 291, 304). If we find error, we determine whether it was prejudicial, meaning harmless beyond a reasonable doubt. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680.) "The harmless error inquiry asks: 'Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?'" (People v. Geier (2007) 41 Cal.4th 555, 608.)
In Crawford v. Washington (2004) 541 U.S. 36, the United States Supreme Court held that the Sixth Amendment's right to confrontation precludes the admission of testimonial hearsay against a defendant in a criminal trial unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination even if the hearsay statement falls within a recognized exception to the hearsay rule. (Crawford v. Washington, supra, at pp. 53-54.) But the court expressly stated that its holding would not apply to the admission of prior consistent statements by a witness who is available for cross-examination: "[W]e reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. [Citation.] It is therefore irrelevant that the reliability of some out-of-court statements '"cannot be replicated, even if the declarant testifies to the same matters in court."' [Citations.] The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it." (Id. at p. 59, fn. 9.) Earlier, in People v. Cannady (1972) 8 Cal.3d 379, 387-388, the California Supreme Court reached the same conclusion, holding that the Confrontation Clause was not violated by the admission of prior consistent statements by witnesses who were available for cross-examination.
Here, M.L., the subject of the CAC interview, testified at trial, was cross-examined and remained available for further cross-examination after the interview was introduced. While we agree with the trial court that interviewer Cardona did not offer testimonial statements, she nonetheless also remained available for cross-examination. We find no support—nor has appellant cited any authority—for the proposition that the prosecution was required to call Cardona as a witness to satisfy appellant's Sixth Amendments rights. (See, e.g., People v. Diaz (1992) 3 Cal.4th 495, 545 ["'The prosecution is not required to call any particular witness, nor to put on all the evidence relating to a charge so long as all material evidence bearing thereon is fairly presented in such a manner as to accord to the defendant a fair trial'"].) Appellant's right to confrontation was not implicated by the admission of the CAC interview.
Even if there had been any error, it would have been harmless beyond a reasonable doubt. M.L.'s trial testimony about the multiple acts of abuse she suffered corresponded to her description of the abuse in her interview with Officer Betancourt. In both instances, she specifically described at least five separate incidents of abuse. Moreover, at least three of the incidents she described at trial and to Officer Betancourt occurred during July 2009 when M.L. was age 10. The CAC interview reiterated these incidents and was cumulative of other, properly admitted evidence of guilt. A Confrontation Clause error is harmless beyond a reasonable doubt if "'the properly admitted evidence is overwhelming and the incriminating extrajudicial statement is merely cumulative of other direct evidence.'" (People v. Schmaus (2003) 109 Cal.App.4th 846, 860.)
II. Appellant's Sentence Was Proper.
Appellant contends that the trial court abused its discretion by imposing consecutive sentences on all counts and that his 57-year to life sentence is cruel and unusual punishment. We find no merit to either contention.
A. The Trial Court Properly Exercised Its Discretion to Impose Consecutive Sentences.
After reviewing the probation report and a Static-99 report, the trial court tentatively indicated that it was inclined to impose a 27-year to life sentence, comprised of 15 years to life on the base term, two concurrent 15 years to life terms and two consecutive six year terms. The trial court thereafter heard a victim impact statement from Mother, in which she advocated for a longer sentence, because "a man should not do that." She emphasized that appellant had destroyed the lives of three people and affected many more, and concluded by saying that only God could forgive him. The prosecutor advocated for consecutive sentences, arguing that the only factor in mitigation was that appellant had no known criminal history and there were multiple factors in aggravation. The prosecutor reminded the court that this case involved not only long term sexual abuse, but also emotional blackmail and physical violence. He argued that M.L. would carry the scars of appellant's abuse with her for the rest of her life.
"The Static-99 is a 10-item actuarial assessment instrument created for use with adult male sexual offenders, which is designed to estimate the probability of sexual and violent recidivism." (People v. Reynolds (2010) 181 Cal.App.4th 1402, 1410, fn. 5.)
Thereafter, the trial court indicated that it had been struggling to determine an appropriate sentence. The court commented that this was the most disturbing case it had heard in 35 years of practice as a judge and attorney. Acknowledging that one of the purposes of holding a sentencing hearing is to receive input from others, the trial court characterized this case as one of the "rare moments" where such input had persuaded the court that a greater sentence than originally indicated was warranted. The trial court continued: "This wasn't a case that was simply based upon a violation of trust and a young girl surrendering to that trust unaware of how she was being taken advantage of, but knew something wasn't right; she had other factors here in which the defendant also utilized actual physical abuse and the threats of future physical abuse to get her compliance and cooperation and to hide his past and current conduct and to keep her vulnerable for future abuse." After reflecting on the sexual abuse, physical abuse, emotional coercion and intimidation that appellant had inflicted on M.L., even after having multiple opportunities to stop to consider "'what kind of man am I to be doing things like this to this child,'" the trial court determined that it was appropriate to impose the life terms consecutively.
The trial court summarized: "In entering the sentence, the court has taken into consideration the violence, the great bodily harm, the threat of great bodily harm, and other acts which show a variety of viciousness and callousness. The victim was particularly vulnerable. The manner in which the crimes were carried out indicates planning, sophistication, or professionalism. The defendant took advantage of a position of trust or confidence in the committing of these offenses. All of these factors outweigh any factors in mitigation, including the defendant's lack of a record that the court's unaware of."
Sentencing choices are reviewed for abuse of discretion and "'will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner.' [Citation.]" (People v. Downey (2000) 82 Cal.App.4th 899, 909; accord, People v. Sandoval (2007) 41 Cal.4th 825, 850 [trial court has discretion to impose consecutive sentences].) "We will not interfere with the trial court's exercise of discretion 'when it has considered all facts bearing on the offense and the defendant to be sentenced.' [Citation.]" (People v. Downey, supra, at p. 910.) "'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
Here, the record affirmatively reflects that the trial court considered the relevant criteria enumerated in California Rules of Court, rules 4.421 and 4.425 to impose consecutive life terms. (See also Cal. Rules of Court, rule 4.409 [relevant criteria "must be considered by the sentencing judge, and will be deemed to have been considered unless the record affirmatively reflects otherwise"].) Specifically, the trial court considered that the offenses involved great bodily harm and the threat of great bodily harm (Cal. Rules of Court, rule 4.421(a)(1)); they involved viciousness and callousness (Cal. Rules of Court, rule 4.421(a)(1)); M.L. was particularly vulnerable (Cal. Rules of Court, rule 4.421(a)(3)); the manner in which the offenses were carried out indicated planning, sophistication, or professionalism (Cal. Rules of Court, rule 4.421(a)(8)); and appellant took advantage of trust or confidence in committing the offenses (Cal. Rules of Court, rule 4.421(a)(11)).
California Rules of Court, rule 4.425(b) provides that any circumstance in aggravation may be considered to impose consecutive sentences.
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That appellant offered a single factor in mitigation—the absence of a criminal record—is of no consequence. In exercising its sentencing discretion, the trial court is vested with broad discretion to weigh aggravating and mitigating factors, including the authority to minimize or even disregard allegedly mitigating factors. (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) Indeed, "one relevant and sustainable fact may explain a series of consecutive sentences." (People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12.) Here, the trial court properly exercised its discretion to weigh the multiple aggravating factors against the isolated mitigating factor to conclude that consecutive life terms were warranted.
B. Appellant's Sentence Did Not Amount to Cruel and Unusual Punishment.
In evaluating a cruel and unusual punishment claim, "[w]e decide whether the penalty given 'is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity,' thereby violating the prohibition against cruel and unusual punishment of the Eighth Amendment of the federal Constitution or against cruel or unusual punishment of article I, section 17 of the California Constitution. [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1042.) To make this determination, we consider the three factors set forth in In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch). (See People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.) The factors include: (1) "the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society" (Lynch, supra, at p. 425); (2) a "compar[ison of] the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious" (id. at p. 426); and (3) "a comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision" (id. at p. 427). Appellant bears the burden of establishing the punishment is unconstitutional. (People v. King (1993) 16 Cal.App.4th 567, 572.)
As to the first Lynch factor, when evaluating the offense we look at "the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts." (People v. Dillon (1983) 34 Cal.3d 441, 479.) Again, characterizing this case as one of the most disturbing it has ever heard, the trial court explained that the way in which appellant committed his offenses involved multiple levels of abuse—sexual abuse, physical violence and emotional coercion—that effectively robbed M.L. of her childhood. (See People v. Alvarado (2001) 87 Cal.App.4th 178, 200 [callous and opportunistic sexual assault against a vulnerable victim is "precisely the sort of sexual offense that warrants harsh punishment"].) Appellant focuses on his Static-99, arguing that it showed he had a low propensity to reoffend. But the lack of a prior criminal record is not determinative of disproportionality. (People v. Martinez (1999) 76 Cal.App.4th 489, 497.) Moreover, appellant ignores that while the duration of his abuse gave him "many opportunities to reflect upon his own sense of humanity," at each point he choose to continue to abuse M.L. Neither the nature of the offenses nor the offender establish that appellant's 57 years to life sentence was disproportionate.
Appellant has offered no analysis of the second and third Lynch factors. In any event, "appellate courts have held that lengthy sentences for multiple sex crimes do not constitute cruel or unusual punishment." (People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 531; see People v. Retanan (2007) 154 Cal.App.4th 1219, 1231 [135 years to life sentence was not cruel or unusual punishment]; People v. Estrada (1997) 57 Cal.App.4th 1270, 1278-1282 [life sentences for sex offenders mandated by California's "One Strike" law do not constitute cruel and unusual punishment]; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1132, 1134-1136 [375 years to life sentence was not cruel or unusual].) Appellant's sentence is not constitutionally disproportionate.
DISPOSITION
The judgment of conviction is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
DOI TODD, Acting P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.