Opinion
D075949
10-31-2019
THE PEOPLE, Plaintiff and Respondent, v. LUIS ORLANDO ROMERO, Defendant and Appellant.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Seth Friedman, and Amanda Lloyd, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CR037675) APPEAL from a judgment of the Superior Court of San Bernardino County, Corey G. Lee, Judge. Affirmed. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Seth Friedman, and Amanda Lloyd, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted Luis Orlando Romero of three counts of sexual intercourse with a child 10 years old or younger (Penal Code, § 288.7, subd. (a), counts 1-3) and two counts of committing a lewd act on a child under the age of 14 (§ 288, subd. (a), counts 4-5). The trial court sentenced him to a determinate term of eight years plus an indeterminate term of 75 years to life. On appeal, Romero challenges the admission of evidence regarding a prior, uncharged sex offense under Evidence Code sections 352 and 1108. We reject Romero's contentions and affirm the judgment.
Unless otherwise specified, statutory references are to the Penal Code.
PROCEDURAL AND FACTUAL BACKGROUND
A. Information
An information filed in 2017 accused Romero of three counts of sexual intercourse with a child 10 years old or younger by a person 18 years of age or older (§ 288.7, subd. (a)) and two counts of committing a lewd act on a child (§ 288, subd. (a)).
B. Trial Testimony
1. Mother
Mother, Romero's former wife, testified that she and Romero had two daughters, Daughter 1, born in November 2007, and Daughter 2, born in March 2005. In 2011, the family moved into Mother's grandmother's house in Arizona, where grandmother was raising A. and S. (who were each other's sisters). When grandmother passed away, Mother and Romero became legal guardians of A. and S., and in January 2013, they all moved back to California.
Romero was born in 1982.
Daughter 1 was five years old when the family moved from Arizona to California. Daughter 2 was seven.
In June 2016, Mother and Romero separated when Mother learned that Romero and S.—who was now 18—were having a sexual relationship. In July, Daughter 1 disclosed to Mother that Romero had sexually abused her. Mother reported the abuse to authorities.
Mother was contacted by deputies from the San Bernardino County Sheriff's Department. She accompanied a deputy to a sheriff's station and placed a pre-textual phone call to Romero. An audio recording of their conversation was played for the jury. During the phone conversation, Mother told Romero that Daughter 1 had told her something disturbing: that "[his] private parts were on her private parts [¶] . . . [¶] [a]nd that it's been happening for quite a long time." Romero initially denied the allegation. However, he later said he had been sexually abused; then he admitted something inappropriate "[h]appened about three times" with Daughter 1. He admitted to "grinding on her" but denied "penetrat[ing]" her. Mother said, "[Romero], you touched her with your penis." Romero responded, "And I'm so ashamed of that. You don't even know. Every time I look at her, I try to apologize, like sorry." Later, Mother said, "And you did it three times?" Romero said, "And I did . . . . Yes."
A San Bernardino County Sheriff's Department deputy testified that a pre-textual phone call is an investigation technique wherein a victim calls a suspect in an attempt to elicit a confession or admission of guilt.
The following exchange took place:
"[Mother:] . . . I mean, she said that it happened . . . . Started in Arizona.
"[Romero:] Arizona, yeah, I mean, just the touching, that was it there, okay?
"[Mother:] And then in California it went further?
"[Romero:] Just once.
"[Mother:] Well you said three times.
"[Romero:] And then I got scared. Yeah, but it was just touching. It wasn't like that."
Romero admitted something happened one time in the living room. The following exchange took place:
"[Mother:] . . . And I just need to know that you didn't do nothing like penetrate her or anything.
"[Romero:] I didn't.
"[Mother:] That way I can go and I can help her.
"[Romero:] I didn't. All I did was grind and that was bad enough. But I knew. I knew if I stuck around . . . .
"[Mother:] So you grinded on her with your thing, that's why she seen your thing?
"[Romero:] Yes. (Cries.) Ooh I'm so ashamed . . . .
"[Mother:] And she was, was she, did she have her clothes on or was she naked? Because I think she told me that she didn't have no clothes on.
"[Romero:] She didn't. I, once I did that I stopped."
He later stated he "didn't go in her [he] just rubbed against it," "[a]gainst her leg, against it." Then he said he "must have hit it" and "[a]fter that, she jumped up." Mother did not think Romero was telling her everything because Daughter 1 stated "she felt it and it made her stomach hurt," and suggested that Romero "probably went in once and didn't notice, and pulled out quick." The following exchange occurred:
"[Romero:] No, no. I don't think so.
"[Mother:] You don't think so, I mean, you would know, [Romero].
"[Romero:] I'm sorry, I wouldn't.
"[Mother:] I mean, if she jumped up that means you really hit inside there.
"[Romero:] But there was no blood, no nothing like that, so . . . ."
Romero again apologized to Mother, stating, "I'm so sorry. Please, let me start my life over. I don't know. I lost my way."
2. Daughter 1 (Victim)
Daughter 1, who was 10 years old at the time of trial, testified that, when the family was living in Arizona, Romero would initiate sex by playing a spinner game with her. The spinner had pictures of naked people on it. Romero would put his "middle part"—the part that he uses to go "pee"—in her "middle part"—the part that she uses to go "pee"—and move it back and forth. This made her feel "uncomfortable"; she did not want to do it. Romero told her not to tell anyone else, and she did not, because she was scared.
Mother testified she had received a sex spinner game as a gift from a friend when she and Romero were living in Arizona and got "remarried." She was unable to find it during the sheriff's investigation of the sexual abuse allegations. However, she sent investigators a photo of a similar one that she found on the Internet; the photo was shown to the jury.
Daughter 1 testified she could not remember how often the sex occurred in Arizona, but it happened more than once. She testified that the sex continued when the family moved back to California and recalled that it occurred more than once in the living room of their California house, about three times in the back room of the house, and also in her bedroom. It made her feel uncomfortable, and after it would happen, Daughter 1's body would shake and shiver, and it felt "weird" to go to the bathroom.
Daughter 1 recalled seeing Romero rub some sort of lotion or liquid on his "middle part." She recalled Romero tried to get her to suck his "middle part." He pulled her head down, but she said, "No," and he said, "Okay, next time." Then he grabbed his "middle part" and moved it up and down with his hand, and then he put it in her "middle part." Daughter 1 testified that this happened for years, but she did not tell anyone because she was scared. After her father moved out, she told her sister, and then she told her mother.
3. Daughter 2
Daughter 2, who was 12 years old at the time of trial, testified that, after the family moved from Arizona to California, she and Romero traveled back to Arizona. While there, her father made her reach around his legs, and made her "itch, massage around the leg area." She initially testified nothing else happened, but then testified she recalled telling a forensic interviewer that she woke up and her dad was "doing it to [her]." She recalled that the interviewer asked what he was doing, and she wrote the word "sex" on a piece of paper. She recalled telling the interviewer that Romero "stuck his pee-pee in [her] butt," but testified it was not true.
Mother's testimony confirmed that Romero and Daughter 2 returned to Arizona shortly after the family moved back to California, in "early 2013." She estimated the trip lasted a couple weeks. Daughter 2 was approximately seven or eight years old at the time.
An audio recording of her interview was played for the jury. During the interview, Daughter 2 told the interviewer that she "woke up while he was doing it. And then he stopped right away." She said it felt "really weird," and it hurt "when [she] went to the bathroom and when he was doing it, too." She said, "He just stuck his pee[-]pee—his pee[-]pee in my butt," and "[i]t hurt really bad."
Daughter 2 was 11 years old at the time of the interview.
After listening to her recorded interview, Daughter 2 testified that she could not really remember what had happened, but she remembered that she was trying to be truthful during her interview. She remembered telling the interviewer the "sex" felt "really weird," and she did not like it at all, and that afterward it hurt when she went to the bathroom. She testified she was telling the truth to the interviewer.
4. Sergeant Everman
Sergeant Everman from the Crimes Against Children detail of the San Bernardino County Sheriff's Department testified he investigated the family's allegations of sexual abuse, including accompanying Daughters 1 and 2 for forensic interviews in July 2016.
An audio recording of Daughter 1's forensic interview was played for the jury. She told the interviewer the abuse started in Arizona. She said "[h]e spinned the thing" with pictures. She said, "and then he said 'Pull off your pants' and I didn't know what he was talking about and he got me scared." She said he then pulled off his pants and she "saw the middle part" and "[h]e put it down there and it felt uncomfortable to [her]." She said "[h]e was laying down on me," and he only stopped when her mother came home. She said that, "once we got to California, after he made my bed he started waking me up [¶] . . . [¶] And then sometimes he would do it and then sometimes he wouldn't." She told the interviewer she would sometimes sleep with her sister because she was afraid.
Daughter 1 was eight years old at the time of the interview.
The detective testified he had relayed to Mother the information Daughter 1 provided regarding lotion or liquid and asked her if there was anything matching the description in the home. Mother reported she found a bottle of "two-in-one massage oil." A photograph of the bottle was shown to the jury. The detective also testified Daughter 1 told the forensic interviewer the last time the sex occurred was before her last (i.e., eighth) birthday.
The detective also testified that Daughter 2 told the forensic interviewer that the sexual abuse by Romero "happened a long time ago and she was having some trouble remembering, but she remembered that he put his [pee-pee] in her butt."
5. Nurse
A pediatric nurse practitioner testified she performed a forensic medical examination on Daughter 1 in July 2016. The nurse reported that no abnormalities regarding the genital tissue were observed, but this was expected when the examination was performed several days or more after the abuse occurred because genital tissue normally heals without scarring within days of injury. The nurse further testified that "children really have a hard time differentiating what is meant by the word 'in,' " and that it was possible to have "insertion [of the penis] . . . into the labia majora," without it going "into the vagina," and this would not normally leave any sort of injury. The nurse emphasized that, even if Daughter 1's vagina had been penetrated by an adult male penis, any injuries would have healed by the time she examined her, months after the injury.
6. Deputy Bennington
Deputy Bennington with the San Bernardino County Sheriff's Department testified that he and another deputy responded to Mother's report of abuse. At Mother's home, the deputies spoke with Mother and Daughter 1, who initially was reserved and nervous, but became very upset and cried when she described sexual acts involving her father. Deputy Bennington brought Mother to the sheriff's station, where they placed the pre-textual phone call to Romero.
7. Defense Witnesses
Romero's sister J. and his girlfriend S. both testified in his defense. J. testified that the daughters were always normal and affectionate with their father (who J. had known her entire life). S. testified that, starting from the time she was 14 years old and growing up in the same home, she never saw anything inappropriate occur between Romero and his children. S. and Romero became friends when she was 17 and they began an "adult relationship" when she turned 18 and lived in the same home with Romero, his wife, and their children.
Romero testified that he had a "great" relationship with his daughters. He testified that the things his daughters had testified to "did not happen." He testified he lied when he told Mother he had been abused, and he lied when he told Mother about "grinding" on Daughter 1. He claimed to have said those things to appease Mother so she would stop bothering him. He further explained on cross-examination that he suspected the police might be listening on the call, but he nonetheless started crying and falsely confessed to molesting his daughter three times. When asked why he also said he was sexually abused, Romero explained, "Because I—if I'm going to start lying about something [I'm] going to start lying about all kinds of things."
8. Jury Instructions
The jury was instructed with pattern jury instructions for section 228.7, subdivision (a) (engaging in sexual intercourse with a child 10 years of age or younger) and section 288, subdivision (a) (lewd or lascivious act with a child under 14 years of age). The jury was also instructed with CALCRIM No. 1191A, evidence of uncharged sex offense, as follows:
The jury was instructed in relevant part that "the People must prove that: [¶] 1. The defendant engaged in an act of sexual intercourse with [Daughter 1]; [¶] 2. When the defendant did so, [Daughter 1] was 10 years of age or younger; [¶] AND [¶] 3. At the time of the act, the defendant was at least 18 years old. [¶] Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required." (See CALCRIM No. 1127.)
The jury was instructed in relevant part that "the People must prove that: [¶] 1. The defendant willfully touched any part of a child's body either on the bare skin or through the clothing; [¶] 2. The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child; [¶] AND [¶] 3. The child was under the age of 14 years at the time of the act." (See CALCRIM No. 1110.)
"The People presented evidence that the defendant committed the crime of sodomy with a child 10 years old or younger by a
person at least 18 years old, in violation of Penal Code section 288.7[, subdivision] (a), that was not charged in this case. The instruction for this crime is as follows:
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant engaged in an act of sodomy with [Daughter 2];
"2. When the defendant did so, [Daughter 2] was 10 years of age or younger; [¶] AND
"3. At the time of the act, the defendant was at least 18 years old.
"Sodomy is any penetration, no matter how slight, of the anus of one person by the penis of another person. Ejaculation is not required.
"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense. . . .
"If the People have not met this burden of proof, you must disregard this evidence entirely.
"If you decide that the defendant committed the uncharged offense, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit the charged offenses, as charged here. If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged offenses. The People must still prove the charge beyond a reasonable doubt."
9. Verdicts and Sentencing
The jury found Romero guilty of all five charged offenses. The trial court sentenced him to an aggregate term of 83 years to life in prison.
DISCUSSION
Romero contends the trial court erred in admitting testimony regarding the uncharged sexual offense under Evidence Code section 352, and that his due process rights were violated, because the prior offense "was extremely inflammatory," it was dissimilar to the charged offense (which did not involve sodomy), and there was an increased danger the jury may wish to punish him because there was no evidence he was already convicted of the uncharged crime.
A. Legal Principles
Evidence that a defendant committed a "sexual offense" under Evidence Code section 1108 "is presumed admissible and is to be excluded only if its prejudicial effect substantially outweighs its probative value in showing the defendant's disposition to commit the charged sex offense or other relevant matters." (People v. Cordova (2015) 62 Cal.4th 104, 132 (Cordova), italics added.) Romero acknowledges that propensity evidence is admissible under Evidence Code section 1108, but contends the trial court abused its discretion in weighing the evidence, and failing to exclude it, under Evidence Code section 352.
Evidence Code section 1108 provides in relevant part: "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 Section 1101, if the evidence is not inadmissible pursuant to Section 352." (Evid. Code, § 1108, subd. (a).) Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
We review a trial court ruling under Evidence Code section 352 under the abuse of discretion standard of review. " 'A trial court's exercise of its discretion under [Evidence Code] section 352 " 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " ' " (People v. Hernandez (2011) 200 Cal.App.4th 953, 966.)
B. Analysis
We reject Romero's claim that the uncharged sexual offense evidence was unduly prejudicial under Evidence Code section 352. Romero characterizes the evidence as "highly inflammatory." He contends Daughter 2's "graphic and disturbing testimony" was "reinforced through repetition" by Sergeant Everman, and the evidence was particularly inflammatory because he sodomized his own daughter when she was under the age of 10.
We agree the details of Romero's prior sexual offense are damaging, but prejudicial evidence is not synonymous with evidence damaging to the defense. (People v. Karis (1988) 46 Cal.3d 612, 638.) Romero's sexual abuse of Daughter 2 is "extremely probative" of his propensity to sexually abuse Daughter 1, and "brings the evidence precisely within the primary purpose behind Evidence Code section 1108." (People v. Avila (2014) 59 Cal.4th 496, 516.) Daughter 2's testimony, involving a single act of sodomy, was no more "graphic and disturbing" than Daughter 1's detailed account of numerous sexual crimes, including sexual penetration, which continued for years. (See People v. Loy (2011) 52 Cal.4th 46, 62; People v. Yovanov (1999) 69 Cal.App.4th 392, 406 ["evidence of . . . uncharged sexual misconduct" was not highly inflammatory where it was "equally graphic" as charged offenses].) Another witness's reference to Daughter 2's allegation of sodomy did not increase the prejudicial effect of the evidence. Sergeant Everman's testimony on this issue was brief, and presented after Daughter 2 was unable to recall portions of her forensic interview.
Romero asserts he was prejudiced because Daughter 2 was under the age of 10 when the uncharged offense occurred. If Romero is claiming the victims were of different ages when the crimes occurred, we fail to see how that renders the uncharged offense so prejudicial as to establish an abuse of discretion. In any event, Daughter 1 was also under the age of 10 when Romero committed the instant crimes.
Daughter 2 was able to recall fewer details at trial regarding Romero's sexual offense than Daughter 1.
We further reject Romero's claim that the sodomy offense against Daughter 2 was unduly prejudicial because it involved "factually dissimilar" conduct. Although the charged offenses involved vaginal intercourse while the uncharged offense involved sodomy, the crimes against both daughters involved sexual penetration. The difference in the type of sexual penetration is not dispositive and does not show the trial court abused its discretion under Evidence Code section 352. (See People v. Merriman (2014) 60 Cal.4th 1, 41-42; Cordova, supra, 62 Cal.4th at p. 134 [sex offenses were sufficiently similar where they were "committed late at night inside a home against young children of similar age"].)
Finally, we reject Romero's claim that the jury would want to punish him because they did not know whether he was convicted for his prior offense. (People v. Ewoldt (1994) 7 Cal.4th 380, 405.) As detailed ante, the trial court properly instructed the jury on the limited manner in which it could consider the evidence of the uncharged sexual offense. (CALCRIM No. 1191A.) The court also instructed the jury regarding its duty to weigh evidence and determine witness credibility, the presumption of innocence, and the prosecutor's burden of proof. We presume the jury understood and followed these instructions. (People v. Edwards (2013) 57 Cal.4th 658, 746.) Not only was the prior offense no more inflammatory than Romero's multiple current crimes, the court's instructions diminished the risk that the jury would seek to punish him for the prior uncharged offense rather than (or in addition to) his current crimes.
Even assuming the trial court erred in admitting evidence of the uncharged sexual offense, any error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836 [error is reversable if there is a reasonable probability that a result more favorable to defendant would have been reached in absence of error]; People v. Jandres (2014) 226 Cal.App.4th 340, 357 [applying Watson harmless error test to consideration of evidence pursuant to Evid. Code, §§ 352 and 1108].) Even without Daughter 2's testimony, the evidence against Romero was overwhelming. Daughter 1 testified in detail about multiple incidents of abuse—both at trial and during an earlier forensic interview. She described when Romero first initiated sexual contact, where the abuse occurred, what he did to her, what he tried to do to her, and how it made her feel. She further recounted that he instructed her not to tell anyone else, and that the abuse continued for years. Romero himself admitted that he molested Daughter 1 in a phone call with Mother. Contrary to Romero's assertion, this was not a close case, and the prosecutor's statements about Daughter 2's testimony during closing arguments do not support his claim of prejudicial error. In short, it is not reasonably probable Romero would have obtained a more favorable result if the jury did not hear Daughter 2's testimony.
Romero contends the error was not harmless because he provided an "innocent explanation" for his statements at trial, but the jury could readily reject his explanation—that he falsely confessed so Mother would stop bothering him, even though he suspected the police were on the call—irrespective of Daughter 2's testimony.
Romero notes that the prosecutor told the jury it could use the uncharged sex crimes as evidence of Romero's propensity, but the prosecutor's statements merely tracked the jury instructions regarding the proper use of this evidence.
Romero's claim that his federal due process rights were violated by the introduction of this evidence also lacks merit. Romero acknowledges our Supreme Court has rejected due process challenges to a trial court's admission of evidence under Evidence Code section 1108 (People v. Falsetta (1999) 21 Cal.4th 903, 922 (Falsetta)), and that we are bound by this ruling (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). Romero nonetheless argues that the United States Supreme Court has not decided the issue. We are not persuaded by Romero's reliance on cases that predate Falsetta—including cases that were discussed and distinguished by the Falsetta court. Romero's point—that it has been a long-standing principle of justice to exclude evidence of uncharged crimes to prove a defendant's propensity to commit similar crimes—was already addressed by our Supreme Court when it ruled that the deviation from that practice in Evidence Code section 1108 does not violate a defendant's due process rights. (Falsetta, at pp. 913-916.) We therefore reject Romero's constitutional claim.
The Attorney General contends Romero forfeited this claim by failing to expressly raise an objection on this ground in the trial court. (See People v. Riggs (2008) 44 Cal.4th 248, 304.) Romero contends his due process claim is a natural extension of his Evidence Code section 352 objection. (See People v. Partida (2005) 37 Cal.4th 428, 435.) Because we reject Romero's claim on the merits, we do not address the forfeiture issue.
Most of the cases cited by Romero also predate the enactment of Evidence Code section 1108 in 1995. Romero describes the general rule against admission of propensity evidence, but Evidence Code section 1108 was intended to change that rule. (Falsetta, supra, 21 Cal.4th at p. 911 [in 1995, the Legislature added Evidence Code section 1108 to "expand the admissibility of disposition or propensity in sex offense cases"].)
In light of his constitutional claim, Romero urges us to consider potential prejudice under the more stringent standard of Chapman v. California (1967) 386 U.S. 18, 24. We have rejected that claim, and we conclude any assumed error is harmless under either standard for reasons previously discussed.
In summary, we conclude the trial court did not abuse its discretion in admitting evidence of the uncharged sexual offense under Evidence Code sections 1108 and 352, Romero's due process claim lacks merit, and any assumed error in admitting the evidence was harmless.
DISPOSITION
The judgment is affirmed.
GUERRERO, J. WE CONCUR: BENKE, Acting P. J. O'ROURKE, J.