Opinion
G045236
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. BENITO VELASQUEZ ROMERO, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Scott C. Taylor, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 09CF2199)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Frank F. Fasel, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury found defendant Benito Velazquez Romero guilty of three counts of violating Penal Code section 288, subdivision (a), lewd act upon a child under 14, two counts of violating Penal Code section 220, subdivision (a), assault with intent to commit sexual offense, one count of violating Penal Code section 288, subdivision (c)(1), lewd act upon a child, and one count of violating Penal Code section 243.4, subdivision (e)(1), sexual battery. (All further statutory references are to the Penal Code.) Defendant also pled guilty to two counts of violating section 220, subdivision (a), assault with intent to commit sexual offense. The court sentenced him to serve 12 years eight months in state prison.
On appeal, defendant contends the trial court erred when it refused to grant a mistrial or new trial based upon a purported conflict of interest between defendant and the public defender. Because defendant cites to no evidence in the record to support his argument, we deem it to be waived. Defendant also contends the evidence does not support his conviction for both counts of assault with the intent to commit a sexual offense, and, in any event, his sentence on one of those counts should be stayed pursuant to section 654. We affirm.
I
FACTS
At approximately 4:30 in the afternoon of September 1, 2009, police and a social worker went to a residence in Santa Ana "to investigate some misconduct at the home, some sexual misconduct." They intended to speak with each child individually away from the parents so the children could speak freely.
The first child with whom they spoke, A., was an 11-year-old girl. The second was a five-year-old girl, J. The third child, also a girl, was 16 years old and was referred to as the victim at the trial. They spoke with the victim for about an hour, and then placed defendant under arrest. Defendant is the victim's stepfather.
Interview of Defendant
At the police station, defendant told the police "he had some alcoholism issues, drug addiction issues, and that he had been having some sexual urges about his stepdaughter who he did not actually see as a daughter anymore. He saw her as woman that was now developing as a teenager." Defendant said he started feeling urges about the victim when she was 11 years old, and "that his urges were so strong that, if not stopped or if he did not receive any kind of help, he would have raped her at some point."
Defendant told the police that when the victim was 11 years old, he had fantasies about having sex with her, and "would watch pornographic videos, would masturbate in front of her, and at times would rub her leg, rub her — rub her behind when she was sleeping." He admitted to touching her vagina six times while she was sleeping. In 2008, defendant had sexual urges and intended to force the victim to have sex with him, but she locked herself in the bathroom. While he was trying to get into the bathroom, he was interrupted when the victim's mother came upon the scene.
During his interview with the police, defendant indicated he wanted to meet with the victim to apologize to her. He was told it would be too traumatic for the victim, but he could write a letter. He wrote a letter to the victim telling her he loved her very much and asked for her forgiveness.
The Victim
When the police first questioned the victim, she told them nothing had happened between her and defendant because she was "scared." But after the officer and social worker explained she had to be truthful, she told them defendant touched her approximately 10 to 15 times. She also said she wouldn't sleep at night because she was afraid he would rape her.
By the time of trial, the victim was 17 years old. She testified when she was about 10 or 11 years old, defendant touched her on the vaginal area both over her pants and inside her underwear. When she was 11 or 12 years old, the family moved, and defendant would try to caress her at the new home. She said while he touched her legs, he was "jacking off" and watching "porno." On one occasion, he kissed her and she scratched his face and bit defendant's tongue when he put it in her mouth.
The following questions and answers occurred between the prosecutor and the victim about an incident when she locked herself in the bathroom:
"Q. Could you describe for us what happened that caused you to lock yourself in the bathroom?
"A. I was sleeping in the room and he — and he walked in. And I tried to, like, run out, but — like, I locked myself in the restroom because he would, like — he was trying to touch me and I didn't let him.
"Q. . . . you said you were in the room. What room were you in?
"A. In — in my room where I was sleeping with my sister.
"Q. So you were on a bed?
"A. Yeah. But then I saw him come in, but I got scared, so I — and I ran out and I locked myself in the restroom.
"Q. When you saw him walk in the bedroom, what did you see? Was he doing anything?
"A. No. Like, he was, like, just walking in slowly.
"Q. Why did you get scared at that point?
"A. Because, like, he usually does it. He goes in and he — I was scared. [¶] . . . [¶]
"Q. That time when he came in and you locked yourself in the bathroom, do you recall about when that happened?
"A. In the morning.
"Q. In the morning time?
"A. Yeah.
"Q. You talked to the police officers in 2009, in September. Do you
remember talking to them in September 2009?
"A. Yeah.
"Q. Using that date as a point of reference
"A. Uh-huh.
"Q. — How much time before September 2009 did that incident happen in
the morning?
"A. I think, like, a year before that.
"Q. Okay.
"A. Or longer.
"Q. A year or more before September 2009?
"A. Yes.
"Q. I am still talking about that same time when you locked yourself in the bathroom. [1] He came in. Did you notice whether or not he was jacking off on that occasion?
"A. No, I didn't notice.
"Q. You didn't notice?
"A. No.
"Q. When he walked into the room, did he touch any part of your body before you ran?
"A. Yes.
"Q. Where did he touch you?
"A. Like, on my leg. Like, as I was — as I was trying to get out.
"Q. As you were trying to get out. Did he try to stop you in any way?
"A. Yes.
"Q. What did he do?
"A. He, like, grabbed me and kind of, like, not threw me, but, like, tried to place me on the floor and was trying to, like, unzip my pants.
"Q. Okay. . . . And for the record, your Honor, she is using her hands to describe how she was held by the defendant. [¶] And perhaps if you could show me what you were doing again with your hands, [victim's name], when you were saying he tried to stop you.
"A. Well, like he would, like, try to hold me right here and, like place me on the floor.
"Q. So he grabbed you with his hands? He grabbed your arms?
"A. Yeah.
"Q. And he tried to put you on the floor?
"A. Yeah. Like, on the floor.
[¶] . . . [¶]
"Q. — Like you are pushing. Did he push you down?
"A. Sorta, yes.
"Q. Were you struggling at all?
"A. Yes.
"Q. What was he doing while you were struggling?
"A. Trying to, like, hold me still.
"Q. And did you continue to struggle?
"A. Yes.
"Q. Was he saying anything to you while he did this?
"A. No.
"Q. Did he do anything to your clothing while he was trying to push you down?
"A. He was trying to — he was trying to pull down my pants.
"Q. And what were you doing while he was trying to pull down your pants?
"A. Holding them.
"Q. Were you able to get away?
"A. Yes.
"Q. How did you get away?
"A. Through the door. And that's when I ran into the restroom.
"Q. When you were in the restroom, what happened?
"A. He was trying to come in.
"Q. Were you pushing on the door?
"A. Yes.
"Q. Was he pushing to try to get in the door?
"A. Yes.
"Q. Did something happen to interrupt both of you pushing on that door?
"A. Yeah. My mom.
"Q. What happened?
"A. My mom woke up and said what was going on.
"Q. What did you tell your mom was happening?
"A. I told her nothing, and that
"Q. Did you tell her anything?
"A. Yeah. I told her nothing, and she said "What's going on?"
"Q. She asked you again?
"A. Yeah.
"Q. Did you tell her anything after she asked you the second time?
"A. I just — I just told her that he was trying to get into the restroom."
Defendant's Testimony
Defendant, who testified on August 3, 2010, said he had a problem with drugs "about three years." Defense counsel asked him whether or not he had ever touched the victim sexually, and he responded, "No, sir," and that he watched a pornographic movie and masturbated in front of her one week prior to his arrest. Prior to that one time, he said he never masturbated in front of the victim. After he did that act that one time, he went to see a psychologist. According to defendant, he spoke to the psychologist for about 30 minutes, and then the psychologist said: "Go to your house. Just relax. Take a shower, sleep for a while. I will send you somebody to help you." "I am not going to send you to jail. Don't get scared. Just go home. Relax."
Dr. Flores Testimony
During the prosecution's rebuttal phase of the trial, Roberto Flores de Apodaca was called as a witness. He said he "just go[es] by Dr. Flores to be practical."
Flores testified he prepared a comprehensive psychological evaluation of defendant at the request of the defense. He said his first language is Spanish and that he conversed with defendant in Spanish. Flores testified that when he visited defendant in jail, and before he asked defendant any questions, he informed him it was not Flores's decision whether or not his report would be entered into evidence and that Flores "could be called on to testify in court and asked to explain or elaborate on what we had talked about."
At trial, Flores was asked what defendant said to him during the interview. Flores responded: "He said that because of the fact that he was abusing drugs at the time, he did a number of — committed a number of sexual acts against the minor, which included masturbating, watching pornography, and other kinds of acts. [¶] He said he made a great error because of the, quote, 'Stupid drugs I was using.'" The prosecutor asked Flores whether defendant indicated the type of sexual offense he committed, and Flores said defendant said the acts "included masturbating in front of her, included fondling, and that it was something that occurred over some period of time." Defendant also indicated to the doctor he had strong sexual urges and acted on his urges on his stepdaughter, and that when he was interviewed by the police on September 1, 2009, he told the officers the truth.
Motion for Mistrial
A deputy public defender named Lewis Clapp, who said he was assisting the trial deputy, Matt Darling, declared a conflict on behalf of the public defender's office and moved for a mistrial. In making the motion for mistrial, the public defender stated: "There is a disparity between what the defendant is saying and what an attorney in our office is saying happened prior to him going and talking to this doctor we hired. She is saying one thing, he is saying another thing. [¶ He is saying that he never even gave authorization for that report to be turned over. Or for this report, written by our doctor, to be turned over to the district attorney. We, of course, are saying that that's not the case. [¶] It poses a conflict situation for us because if we weren't — if the attorney who he has this disagreement with, it wasn't an attorney in our office, we may even put her on the witness stand and try to impeach her and show that she made — she made some statements to the defendant that affected what he told the doctor. [¶] And so — but we are not in a position to do that. And, because of that, because we can't present a witness that probably should be presented to defend him, we have a conflict. And I, therefore, am requesting a mistrial simply because I think the defendant should have an attorney that can make the evidentiary record and bring in the witnesses that he should have to defend him." The court denied the motion.
The prosecutor informed the court that at an earlier stage of the proceedings, another deputy public defender gave the prosecutor a copy of a report prepared pursuant to section 288.1 as part of an attempt to secure probation for defendant. The prosecutor stated: "It did not persuade me that it was a probation case. I have always thought that this was a state prison case. I conveyed that to the defense. [¶] I also indicated that since the defendant sought out counseling on his own, realizing that what he was doing was inappropriate and making an effort to stop his behavior, that I would offer low term three years on the case. [¶] I have maintained that offer all the way through the prelim, at the trial state, while we were trailing for trial. I think it was after, maybe, seven to ten days that I had e-mailed Mr. Darling and indicated that at this point my victim was extremely anxious, she was extremely upset, she had a hard time coming to court, and that if his client wasn't going to take it I was going to withdraw that offer. [¶] On the date of trial, I indicated that if he still wanted to plead guilty, he could plead to six years so that the victim would not have to testify. [¶] During the course of our discussions, Mr. Darling and I discussed that his client was going to take the stand. We picked a jury last Thursday. We did motions on Monday morning. [¶] And on Monday before opening statement, I told Mr. Darling, 'I don't know if you know this, but I have a copy of that 288.1 report.' [¶] And he kind of looked at me a little quizzical, and I said, 'And if your client decides to take the stand, my intention is to sub the doctor and use the statements as impeachment.' [¶] And I indicated to Mr. Darling that I didn't feel that I had to say that to him, but that I was giving him the heads-up. And I provided him the case law in People v. Crow [(1994) 28 Cal.App.4th 440]. Prior to him making any decision to call his client to the stand. [¶] So at this point in time, based on the history of this case, the prosecution has been more than up-front with the defense. The conflict should have been perceived in advance of this stage."
While giving its reasons for denying the motion for mistrial, the court stated: "[T]he declaration of conflict of interest is not timely at this point in time since the potential for conflict was made aware to defense counsel prior to jury selection and also prior to the defendant electing to testify yesterday. [¶ ] So, with that in mind, the court refuses to accept the public defender's declaration of conflict. It is without prejudice at this point in time."
Defendant Recalled in Surrebuttal
When recalled, defendant was asked what he told Flores when he asked whether he ever touched the victim. Defendant said: "I told him no."
Defense counsel asked defendant: "When you were giving the interview to Dr. Flores, did you have any idea that he may end up testifying in court in your case?" Defendant responded: "No, sir."
On cross-examination, the following questions and answers occurred between the prosecutor and defendant:
"Q. You also indicated that about a week to ten days before you were arrested you watched pornography and masturbated while standing over your stepdaughter. Is that true?
"A. Yes, Ma'am.
"Q. Did watching your daughter as you masturbated gratify you sexually?
"A. I don't understand the question.
"Q. Well, you were masturbating, correct?
"A. Yes.
"Q. You were watching pornography, correct?
"A. Yes.
"Q. You got up from watching pornography, walked into your daughter's bedroom, continued to masturbate. But rather than watching the pornography, you were now looking at your daughter?
"A. Yes, Ma'am."
After the Verdict
After the verdict was taken and the jury was excused from service, the public defender redeclared a conflict and informed the court a motion for new trial was requested by defendant. The court said it recognized a conflict existed for purposes of making a motion for new trial, and stated: "So, based upon that, the Public Defender's Office is relieved. Alternate defenders are appointed."
Motion for New Trial
Defendant argued the court should grant a new trial "based on the court's refusal to accept Mr. Darling's initial conflict declaration, which forced Mr. Romero to complete his jury trial with counsel that had a conflict of interest." (Capitalization omitted.) He also argued he was examined in surrebuttal "by a member of an office that he alleged had divulged privileged communications without his approval, on the very subject of those communications." The motion was denied.
II
DISCUSSION
The Doctor's Report
Defendant argues he was denied effective assistance of counsel when his lawyer turned Flores's report over to the prosecution. He also argues the trial court erred in denying his motion for new trial. His brief states: "The disclosure of the 288.1 report waived [defendant's] privilege with the psychologist who prepared it. The waiver of the privilege became an issue when the prosecution called Dr. Flores as a rebuttal witness."
According to defendant, "[t]he conflict of interest arose in this case from the conflict between [defendant's] claim that he did not authorize the disclosure of the report prepared by Dr. Flores and the claim of the Public Defender's Office that [defendant] had given such permission." But the only record citation offered by defendant to support his contention he did not authorize the disclosure of the report to the prosecutor consists of the following argument of defense counsel to the court: "The bottom line on it is, there is a disparity between what the defendant is saying and what an attorney in our office is saying happened prior to him going and talking to this doctor we hired. She is saying one thing, he is saying another thing. [¶] He is saying that he never even gave authorization for that report to be turned over. Or for this report, written by our doctor, to be turned over to the district attorney. We, of course, are saying that's not the case."
'"It is axiomatic that argument is not evidence.' [Citation.]" (People v. Stanley (2006) 39 Cal.4th 913, 961, fn. 10.) When a party produces no evidence on an issue, the argument fails. (In re Marriage of Merideth (1982) 129 Cal.App.3d 356, 363.) An argument unsupported by citation to evidence in the record may be deemed waived. (Warfield v. Summerville Senior Living, Inc. (2007) 158 Cal.App.4th 443, 448.) Accordingly, we deem this argument to be waived.
Assault to Commit Rape
Defendant next argues the evidence supports only one count of the crime of assault with intent to commit a rape and alternatively the sentence for count five should be stayed pursuant to section 654. He says: "Here, [defendant] clearly had a single intent and objective when he accosted [the victim] and followed her to the bathroom." The Attorney General argues the offenses were separated by time and by location, and, thus, constitutes two separate offenses.
"[A]ny person who assaults another with intent to commit mayhem, rape, sodomy, oral copulation, or any violation of Section 264.1, 288, or 289 shall be punished by imprisonment in the state prison for two, four, or six years." (§ 220, subd. (a)(1).) "'"The essential element of [assault with intent to commit rape] is the intent to commit the act against the will of the complainant. The offense is complete if at any moment during the assault the accused intends to use whatever force may be required."' [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 399-400.)
"'The "act" which invokes section 654 may be a continuous "'course of conduct' . . . comprising an indivisible transaction . . . ." [Citation.] "The divisibility of a course of conduct depends upon the intent and objective of the defendant. . . .'" (People
v. Nubia (1999) 74 Cal.App.4th 719, 730.) "Whether the defendant entertained multiple criminal objectives is a factual question for the trial court, and its findings on this question will be upheld on appeal if there is any substantial evidence to sustain them. [Citation.]" (Ibid.)
Here there is substantial evidence of two separate acts with two separate intents. At first, defendant threw the child to the floor, held her down and attempted to pull down her clothing. She escaped his clutches. That completed the first violation of section 220. She ran to the bathroom and tried to close the door. Defendant then formed the intent to use his force to open the bathroom door against the girl's will, while at the same time, she pushed the door from the other side in an attempt to close the door. When he pushed on the door against her weight on the other side of the door, he was pushing the victim to try to attack her. That was the second violation of section 220.
III
DISPOSITION
The judgment is affirmed.
MOORE, J. WE CONCUR: RYLAARSDAM, ACTING P. J. FYBEL, J.