Opinion
H043116
06-28-2017
THE PEOPLE, Plaintiff and Respondent, v. ARTURO GARCIA ROJAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1350761)
A jury convicted defendant Arturo Garcia Rojas of four counts of oral copulation or sexual penetration with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b)) and one count of forcible lewd or lascivious conduct with a child under the age of 14 years (§ 288, subd. (b)(1)). The trial court sentenced defendant to a prison term of 60 years to life, consecutive to eight years. On appeal, defendant challenges the admission of the prosecution's DNA expert's testimony on confrontation clause and hearsay grounds. He also contends one of his convictions is not supported by substantial evidence and requests that the abstract of judgment be altered to correctly reflect his custody and conduct credits. We conclude the trial court prejudicially admitted hearsay evidence requiring reversal of defendant's convictions. The People shall have the option to retry defendant on all counts, as we reject his sufficiency of the evidence claim.
All further statutory references are to the Penal Code unless otherwise noted.
I. BACKGROUND
In March 2014, the Santa Clara County District Attorney filed an information charging defendant with four counts of oral copulation or sexual penetration with a child 10 years of age or younger (§ 288.7, subd. (b), counts 1-4); one count of forcible lewd or lascivious conduct with a child under the age of 14 years (§ 288, subd. (b)(1), count 5); infliction of corporal injury on an intimate partner (§ 273.5, subd. (a), count 6); and misdemeanor child endangerment (§ 273a, subd. (b), count 7). Count 5 was alleged to have occurred on February 22, 2013. The trial court later dismissed counts 6 and 7 on the prosecutor's motion.
The case proceeded to a jury trial in 2015. The following evidence was adduced over the course of two days.
The victim was born on November 15, 2002 and was 12 years old at the time of trial. In February 2013, the victim lived in a small trailer with her mother, defendant (her mother's boyfriend), her two younger brothers, and her younger sister. The trailer was parked outside a body shop where defendant worked. The trailer did not have a working bathroom or kitchen, so the family used the bathroom and kitchen in the body shop. The trailer had two beds, which the children shared. Prior to moving into the trailer, the family had lived in a house in San Jose and then, briefly, in motel rooms. The victim testified that defendant was physically abusive towards her, her mom, and her siblings. She further testified that the defendant touched her vagina with his mouth. She could not recall whether he had ever touched her breasts or the first or last time he touched her inappropriately.
On February 22, 2013, when the victim was 10 years old, the police came to the trailer and the victim disclosed that defendant was sexually abusing her. That evening, Detective Tony Fregger interviewed the victim on three occasions. A video recording of the first and longest interview was played for the jury at trial. In that interview, the victim said defendant touched her breasts and vagina "every day" and made her touch him "every day." The victim also described the defendant sucking on her breasts and showing her pornographic videos. She thought the touching started when she was nine years old; it occurred at the house, the motel, and the trailer. The victim described two specific encounters with defendant. One occurred that morning, while her mother and siblings were still asleep. The victim was awake watching videos on the computer in bed in the trailer. The defendant sat on the bed, licked his finger, put his hand in the victim's pants, and moved his finger in circles and up and down on her vagina. Defendant then licked and sucked on her vagina and touched her breasts. The victim also described an encounter the prior day: she and defendant were in the body shop kitchen and he sucked on her breasts and made her touch his penis.
An audio recording of two shorter, follow up interviews also were played for jurors. During the second follow up interview, the victim said she had disclosed the abuse to her mother three times. Her mother had told her to stay away from the defendant.
A transcript of the February 24, 2014 preliminary hearing was admitted into evidence. At that hearing, the victim testified that defendant touched her breasts with his mouth in the body shop kitchen the day the police came. That was the first and only time he had ever touched her breasts, she said. He did not touch her vagina that day. She testified that on other occasions he had touched her vagina with his hands, including the night before the police came. He had touched her vagina with his mouth three or four times, but never in the trailer. She testified she had told her mother about the abuse three times.
On cross-examination during the preliminary hearing, the victim acknowledged that she had previously accused another person—Sergio Gonzalez—of touching her private parts. She maintained he did so when she was five years old.
The victim's mother testified at the preliminary hearing. She said defendant was physically abusive towards her and verbally abusive towards the victim, calling her "bitch" and "prostitute." On the day the police came to the trailer, defendant hit the victim's mother in the face with a curtain rod. The mother denied the victim ever told her that defendant was touching her. With respect to Sergio Gonzalez, the victim's mother testified that the victim had falsely accused him of touching her and eventually recanted.
Kathy Prows, a pediatric forensic examiner with the County, testified that she interviewed and examined the victim on the night of February 22, 2013. The victim told Prows that defendant was touching her genitals "all the time" and that the touching began when she was nine years old. The victim described the defendant licking his fingers and putting them in her vagina, touching and licking her chest, and putting her hand on his penis. Prows took swabs of the victim's body to be tested for DNA evidence.
Elizabeth Skinner, a criminalist at the Santa Clara County Crime Lab, testified for the prosecution as an expert forensic criminalist. She testified that she tested the swabs from the victim for amylase, a component of saliva. All of the swabs tested negative or inconclusive for amylase.
Lynne Burley, a supervising criminalist at the Santa Clara County Crime Lab and the technical leader in the DNA Unit, testified for the prosecution as a forensic criminalist DNA expert. After describing DNA testing generally, Burley testified that analyst Allen Bradford Dixon performed DNA analysis on samples collected from the victim, including a swab of her right breast. As Dixon's supervisor, Burley completed an administrative review of his findings. Burley explained the review process as follows: "I am reviewing his notes and his conclusions to make sure that I agree with his results. And this process involves sitting down with the analyst and discussing how they came to their conclusions, and just anything unique or extraordinary about the case." Her review did not reveal anything "incorrect or flawed" in Dixon's analysis.
Burley testified that "Dixon determined that [defendant] was the major contributor of the DNA from that sample of the right breast." The victim was the minor contributor. Burley "calculate[d] the ratio of the contribution between the major contributor and minor contributor, and it ranged anywhere between 6 to 9 times more. So the major contributor is 6 to 9 times more a contributor." Burley explained that "the fact that the defendant's DNA is in such higher quantity leads me to believe that it's . . . probably from a biological fluid or prolonged touching."
Defense counsel objected to Burley's testimony on hearsay, confrontation clause, foundation, and due process grounds. The trial court overruled those objections.
The jury convicted defendant on all five counts after deliberating for one day. The trial court sentenced defendant to a prison term of 60 years to life, consecutive to eight years, on December 4, 2015. That sentence consisted of 15 years to life on counts 1 through 4 and the midterm sentence of eight years on count 5, all running consecutively. Defendant timely appealed.
II. DISCUSSION
A. Admissibility of Burley's Testimony
Defendant raises two challenges to Burley's testimony about the DNA testing performed by another analyst in this case. Specifically, defendant argues that Burley's statement "Dixon determined that [defendant] was the major contributor of the DNA from that sample of the [victim's] right breast" related testimonial hearsay in violation of his federal constitutional right to confront witnesses against him and in violation of state evidence law. Because we conclude the challenged testimony constituted hearsay and that its admission was improper and prejudicial, we do not reach the confrontation clause claim.
1. Legal Principles
" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) "Except as provided by law, hearsay evidence is inadmissible." (Id., subd. (b).) Our Supreme Court recently held that "[w]hen any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay." (People v. Sanchez (2016) 63 Cal.4th 665, 686 (Sanchez).) By contrast, the Sanchez court noted that "an expert's testimony concerning background information regarding his knowledge and expertise and premises generally accepted in his field" is not "subject to exclusion as hearsay, even though offered for its truth." (Id. at p. 685.) The "improper admission of hearsay . . . constitute[s] statutory error under the Evidence Code." (Ibid.)
"[A] trial court's decision to admit or exclude a hearsay statement . . . will not be disturbed on appeal absent a showing of abuse of discretion. [Citation.]" (People v. Jones (2013) 57 Cal.4th 899, 956.) And "the erroneous admission of hearsay evidence will not result in a reversal unless it is reasonably probable the defendant would have received a more favorable result had the evidence not been admitted." (People v. Landau (2016) 246 Cal.App.4th 850, 866, citing People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
2. The Challenged Testimony Was Inadmissible Hearsay
Burley related an out-of-court statement, namely: Dixon's determination, apparently set forth in his lab report, that defendant "was the major contributor of the DNA from that sample of the [victim's] right breast." That statement related a case-specific fact—that defendant's DNA was found on the victim's breast—as opposed to "generally accepted background information," such as how DNA testing is performed. (Sanchez, supra, 63 Cal.4th at p. 676.) Burley treated that statement as true and accurate, relying on "the fact that the defendant's DNA [was present on the victim's breast] is in such higher quantity" than her own for the opinion that defendant engaged in "prolonged . . . touching" or deposited "biological fluid" on the victim. Accordingly, under Sanchez, the statement was hearsay. (Id. at p. 686.)
Even apart from Sanchez, courts have long held that a "hearsay problem arises when an expert simply recites portions of a report prepared by someone else . . . ." (People v. Leon (2015) 61 Cal.4th 569, 603; Whitfield v. Roth (1974) 10 Cal.3d 874, 895 (Whitfield) ["It is clear that doctors can testify as to the basis of their opinion [citation], but this is not intended to be a channel by which testifying doctors can place the opinion of innumerable out-of-court doctors before the jury"]; People v. Campos (1995) 32 Cal.App.4th 304, 308 [trial court erred by allowing testifying expert to reveal the contents of reports of non-testifying experts, which were hearsay].) That is precisely what happened here; Burley informed the jury of Dixon's determination that defendant's DNA matched that retrieved from the victim's breast. That testimony clearly was hearsay.
The People's contrary characterization of Burley's testimony is baseless. They say she "testified to her own conclusions based on data generated by other analysts." That is simply untrue with respect to the challenged testimony. Nowhere did Burley say she independently concluded that defendant was the major contributor of DNA to the sample from the victim's right breast. While Burley said she reviewed Dixon's conclusion to that effect and did not find any errors, it is far from clear that she analyzed the raw data herself or drew any independent conclusions regarding the DNA profiles present in the sample.
The People argue the trial court did not abuse its discretion in admitting the hearsay testimony because the jury was instructed with CALCRIM No. 332, which told them to "decide whether information on which the expert relied was true and accurate." But, here, the prosecution failed to present any "independent competent proof" of the case-specific fact to which Burley testified—namely, that defendant's DNA was found on the victim's breast swab. (Sanchez, supra, 63 Cal.4th at p. 684.) Accordingly, "the jury simply had no basis from which to" decide whether that fact, on which Burley relied, was true and accurate. (Ibid.) Under Sanchez, CALCRIM No. 332 did not neutralize the hearsay problem in this case.
As provided to the jury in this case, CALCRIM No. 332 read, in relevant part, "Witnesses [were] allowed to testify as experts and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert's knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence." --------
For the foregoing reasons, we conclude that the trial court abused its discretion by admitting the hearsay statement.
3. The Error in Admitting Burley's Testimony Was Prejudicial
The admission of Burley's testimony in violation of the Evidence Code's prohibition on hearsay requires reversal of defendant's conviction only if it was prejudicial. As noted, the Watson standard governs our analysis, meaning the error was prejudicial if it is "reasonably probable that a result more favorable to" defendant would have been reached had Burley's testimony that Dixon determined the DNA retrieved from the victim's breast matched defendant had been excluded. (People v. Seumanu (2015) 61 Cal.4th 1293, 1308 [Watson standard applies to the erroneous admission of hearsay evidence]; Watson, supra, 46 Cal.2d at p. 836.)
The People contend any error was harmless because the victim "testified credibly and consistently about appellant's sexual abuse[, and her] recorded statements and prior testimony provided detailed, corroborating evidence." But, elsewhere in their brief, the People appear to contradict themselves, acknowledging that the victim's "statements to investigators were inconsistent."
The victim's various statements describing the abuse in general terms contained substantial inconsistencies. The victim initially told the detective and Prows that the defendant frequently touched her breasts and vagina with his hands and mouth and made her touch his penis. At the preliminary hearing, she said he only ever touched her breasts once. At trial, she could not recall whether defendant had ever touched her breasts.
The victim's recollection of specific instances of abuse likewise was inconsistent. On February 22, 2013, the day police came to the trailer, the victim told the detective that defendant had touched her that morning. Specifically, she said that while she was in bed in the trailer he had touched her vagina with his finger and his mouth and he had touched her breasts. She also reported that defendant had sucked on her breasts while making her touch his penis the prior day. At the preliminary hearing, the victim testified that defendant never touched her vagina with his mouth in the trailer. She further testified that on the day police came to the trailer defendant touched her breasts with his mouth in the body shop kitchen; she did not mention touching his penis during that interaction. And she said he had touched her vagina with his hands the night before the police came. At trial, she could not recall any specific incidents.
The inconsistencies in the victim's statements undermined her credibility. Absent Burley's testimony relaying the DNA results obtained by Dixon, which corroborated the victim's statements about defendant touching her breasts, it is reasonably probable that at least one juror would have had a reasonable doubt as to defendant's guilt. (People v. Soojian (2010) 190 Cal.App.4th 491, 521 ["common sense compels the conclusion that a hung jury is a more favorable result than a guilty verdict"].) Accordingly, we conclude that the error was prejudicial.
B. Sufficiency of the Evidence on Count 5
Defendant contends there was insufficient evidence to support his conviction on count 5. Although reversal of all of his convictions is required based on inadmissibility of Burley's testimony alone, we nevertheless consider his insufficiency of the evidence argument to determine whether retrial is barred by double jeopardy principles. (Unites States v. DiFrancesco (1980) 449 U.S. 117, 131 ["the Double Jeopardy Clause prohibits retrial after a conviction has been reversed because of insufficiency of the evidence"].)
"When considering a challenge to the sufficiency of the evidence to support a criminal conviction, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Cortes (1999) 71 Cal.App.4th 62, 71.) "In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses." (Ibid.) " 'The testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions. [Citations.]' [Citation.]" (In re Robert V. (1982) 132 Cal.App.3d 815, 821 (Robert V.).)
Count 5 charged defendant with forcible lewd or lascivious conduct with a child under the age of 14 years occurring on February 22, 2013. In a criminal case, "the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Here, the parties agree that the prosecutor elected to base count 5 on the act of defendant forcing the victim to touch his penis with her hand.
Defendant contends there was insufficient evidence presented to establish he committed that act on February 22, 2013. The People disagree, arguing jurors reasonably could have inferred that defendant forced the victim to touch his penis on February 22, 2013 based on her statement to Detective Fregger that he made her touch his penis daily. Defendant responds by noting that the victim also specifically told Detective Fregger that the last time the defendant made her touch his penis was "yesterday"—February 21, 2013.
We conclude that the victim's statement to Detective Fregger that defendant made her touch his penis every day was sufficient to support his conviction on count 5. (Robert V., supra, 132 Cal.App.3d at p. 821 [even if inconsistent, the testimony of a single witness is sufficient to uphold a judgment].)
III. DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for possible retrial on all counts. If the People do not elect to retry appellant within 60 days of this decision becoming final, the Department of Corrections is directed to release defendant.
/s/_________
ELIA, J. WE CONCUR: /s/_________
PREMO, Acting P. J. /s/_________
GROVER, J.