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People v. Ruiz

Court of Appeals of California, Sixth District.
Nov 13, 2003
No. H025076 (Cal. Ct. App. Nov. 13, 2003)

Opinion

H025076.

11-13-2003

THE PEOPLE, Plaintiff and Respondent, v. OSCAR RUIZ, Defendant and Appellant.


Defendant Oscar Ruiz was convicted by a jury of continuous sexual abuse of a child under 14 (Pen. Code, § 288.5, subd. (a), count 1), oral copulation with a minor under 16 (§ 288a, subd. (b)(2), count 2), and aggravated sexual assault of a child (§ 269, count 5). On appeal, he contends that the trial court (1) improperly excluded evidence attacking the police investigation and the victims credibility, (2) improperly excluded evidence of third-party culpability, and (3) failed to state reasons for imposing a full consecutive sentence on count 1 pursuant to section 667.6, subdivision (c). We will affirm the judgment.

All further statutory references are to the Penal Code unless otherwise specified.

Background

Carlos "Doe" was 12 and his sister, Jessica, was nine in March 1994, when they came to the United States from Guatemala with their family. Defendant, a friend of their older brother Alex, came to the United States two months later to live with them. In the familys Mountain View apartment Carlos shared a bedroom with Alex, their cousin Ricardo, and defendant. In September 1996 the family moved to a duplex in Mountain View.

Carlos was 12 when defendant began touching him in a sexual way. At first defendant touched Carloss penis over his sweatpants, but later he began touching Carlos on his skin. After a while defendant touched Carloss penis, legs, and buttocks with his own hands, penis, and mouth. Sometimes defendant would force Carlos to touch his penis. Defendant touched Carlos sexually two or three times a week throughout the time they lived at the Mountain View apartment. Defendant told Carlos that he knew witchcraft and could make Carloss mother sick or well; but if Carlos did not say anything, "nothing was going to happen." Carlos believed everything defendant told him. Defendant would talk with different voices as if there were spirits inside his body.

When the family moved to the duplex, defendant insisted on sharing a room with Carlos, who was by then almost 15. He continued to touch Carloss penis with his hands and Carloss buttocks with his penis at least twice a week. He also forced Carlos to orally copulate him. Defendant tried about 10 times to penetrate Carloss anus with his penis, but it hurt Carlos. At trial Carlos did not know if penetration had occurred. Several times defendant told Carlos to put his penis in defendants anus, but Carlos was unsuccessful.

In October 1998, when Carlos was almost 17, the family moved to San Jose. Again defendant insisted on sharing a bedroom, and the sexual touchings continued. Carlos finally told his mother about this conduct in December 1998.

Defendant began having sexual intercourse with Jessica when she was 10 years old. She tried to push him away, but he was too strong. Defendant told her that he would kill her family if she told anyone what he was doing. Jessica testified that defendant had sex with her more than five times, until just after her 13th birthday. He ignored her requests to stop. On one occasion defendant put his penis in her mouth, but she "felt like throwing up" and left. Another time when Jessica tried to resist him, he threw her against the wall twice. Jessica did not tell anyone that defendant had had sex with her until after his arrest.

Defendant was charged with continuous sexual abuse of a child under 14 (Pen. Code, § 288.5, subd. (a) — count 1), oral copulation with a minor under 16 (§ 288a, subd. (b)(2) — count 2), forcible sodomy (§ 286, subd. (c)(2) — count 3), and forcible oral copulation (§ 288a, subd. (c)(2) — count 4), all involving Carlos. Counts 3 and 4 included the allegation that the offenses had been committed against more than one victim, within the meaning of section 667.61, subdivisions (b) and (e). As to Jessica, the information charged four counts of aggravated sexual assault of a child under 14 and more than 10 years younger than the defendant.

Further unspecified code references are to the Penal Code.

The jury was unable to reach a verdict and a mistrial was declared. After a second jury trial defendant was found guilty of counts 1, 2, and 5 and not guilty of counts 6, 7, and 8 (three of the assault counts involving Jessica). The jury was unable to reach a verdict on the forcible sodomy and forcible oral copulation counts, and these charges were dismissed. The trial court subsequently sentenced defendant to a determinate term of 14 years for counts 1 and 2 and a consecutive indeterminate term of 15 years to life for count 5.

Discussion

1. Exclusion of Detectives Testimony

At defendants first trial Detective Michael King, who had been assigned to investigate the case in March 1999, testified as a prosecution witness. King had interviewed Carlos and Jessica separately over the telephone, but he had never interviewed other members of their family or defendant, and he had not visited the locations of the alleged molestations. Defense counsel asked King about two inconsistencies in Jessicas description of the events. The rest of the lengthy cross-examination was devoted to exposing inadequacies in Kings investigation. As noted above, defendants first trial ended in a mistrial when the jurors could not reach a verdict.

Before defendants second trial the prosecutor asked the court to preclude the defense from "go[ing] into areas about inadequate investigation or questioning victims of the case." In opposition to the request, defense counsel argued that Kings investigation was "willfully inadequate," and that this was relevant to the officers credibility as a witness. Having not read the transcript of Kings testimony, the court reserved ruling and ordered counsel not to refer to the issue in opening statements.

At the second trial the prosecutor rested without calling King as a witness. The defense proposed to call King as its first witness, and the prosecutor objected. Defendant contended that he had a right to present evidence showing the police departments incomplete, inaccurate, or flawed investigation and to impeach Jessicas credibility. The prosecutor, however, argued that Kings alleged negligence in investigating the case was irrelevant, as it was not a question that the jury had to decide. The prosecutor further noted that there was already evidence before the jury that officers went to the San Jose residence several times before defendant was arrested and that, although various family members were present on those occasions, they did not give statements to the officers. As to impeachment of Jessica, the prosecutor pointed out that Jessica had admitted during her testimony that her statements to King were different than her testimony at trial and at prior hearings; consequently, he argued, the issue was already before the jury.

Defendant had previously asserted that the information was relevant to impeach Kings credibility, but the prosecutor pointed out that King had not been called as a prosecution witness.

In the trial courts view, defendant was seeking an acquittal not based on the evidence, but "because the cops did a lousy job." In essence, the court stated, defendant was "asking for jury nullification," which "certainly isnt what the law[] suggests or allows." The court further found that because the victims had already admitted the inconsistencies between their testimony and their statements to King, defendant would be able to argue that these inconsistencies made the witnesses not credible. The court therefore denied defendants motion to present King as a defense witness, finding that the evidence was not relevant to the central factual issue of whether the abuse occurred. The court specifically stated that the evidence was "not probative enough to outweigh the prejudicial effect of cumulativeness" and it would consume an undue amount of time.

Defendant filed a petition for writ of mandate and/or prohibition in this court the next day seeking review of the trial courts ruling (H024513). This court summarily denied the petition that same day.

On appeal, defendant argues that the trial court committed prejudicial constitutional error by depriving him of due process and other trial rights. He argues that he had a fundamental right to present a defense by calling King to attack the victims credibility and to testify regarding his allegedly inadequate investigation. Defendant further argues that consumption of time is irrelevant when the constitutional right to a fair trial is implicated. Thus, defendant contends, admission of Kings testimony was mandatory and the court abused its discretion by excluding it.

We disagree with the premise of defendants position, that a defendants trial rights automatically override a courts exercise of discretion under Evidence Code section 352. "`As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accuseds [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice." (People v. Cudjo (1993) 6 Cal.4th 585, 611 (Cudjo).) A defendant does not have a constitutional right to present all relevant evidence in his defense, no matter how limited in probative value such evidence will be so as to preclude the trial court from using Evidence Code section 352. (People v. Babbitt (1988) 45 Cal.3d 660, 682-683 (Babbitt).) "It follows, for the most part, that the mere erroneous exercise of discretion under such `normal rules does not implicate the federal Constitution. Even in capital cases, we have consistently assumed that when a trial court misapplies Evidence Code section 352 to exclude defense evidence, . . . the applicable standard of prejudice is that for state law error, as set forth in People v. Watson (1956) 46 Cal.2d 818, 836 . . . . [Citations.]" (Cudjo, supra, 6 Cal.4th at p. 611.) Thus, if proffered evidence fails to meet the threshold requirement of relevance, its exclusion under Evidence Code section 352 does not implicate any due process concerns. (Babbitt, supra, 45 Cal.3d at p. 685.) Likewise, "[a]lthough the complete exclusion of evidence intended to establish an accuseds defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right." (People v. Cunningham (2001) 25 Cal.4th 926, 999.)

"Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion `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. [Citations.] [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see also People v. Vargas (2001) 91 Cal.App.4th 506, 543.) Exclusion of evidence that permits only speculative inferences is not an abuse of discretion. (Babbitt, supra, 45 Cal.3d at p. 684.)

In this case, the proffered testimony was of limited probative value. It is entirely speculative that there was exculpatory value in the evidence that King only interviewed Carlos and Jessica over the telephone and did not interview other family members before presenting his case to the district attorney. The decision whether or how to interview witnesses depends on the particular circumstances of each case. (See e.g., People v. Frye (1998) 18 Cal.4th 894, 944-945.) Evidence of Kings thought processes regarding his investigation of the charges could have led to confusion of issues and distraction of the jurors. (See, e.g., People v. Cooper (1991) 53 Cal.3d 771, 818.) While the adequacy of Kings investigation may have been relevant to impeach his testimony had he testified on behalf of the prosecution, King did not testify, so his credibility as a witness was not at issue.

The testimony would also have been cumulative. Defense counsel was able to, and did, challenge Carloss and Jessicas credibility during closing argument, as well as argue the inadequacy of Kings investigation. Counsel cross-examined Carlos and Jessica about the differences between their testimony at trial and both their prior statements to King and their prior testimony. The jury was told that defendant was not arrested until May 2001, even though Carloss family was aware of defendants sexual abuse of him in December 1998. The jury was also aware that Carlos was not examined by a physician regarding the alleged abuse until after defendant suggested it, and that Jessica never was. The jury could evaluate and compare Carloss and Jessicas prior statements with their trial testimony without Kings testimony. The trial court did not abuse its discretion in determining that Kings testimony would be unduly cumulative.

Furthermore, whether the victims prior statements to King were true did not control the outcome of the case. These statements were inconsistent only in the details of the assaults; they did not indicate that the assaults had never actually occurred. Carlos and Jessica consistently claimed to King and others that defendant had sexually abused them. They acknowledged the inconsistencies in the details of their reports when cross-examined about them, which gave defendant the opportunity to use the inconsistencies in arguing his case to the jury. The trial court did not abuse its discretion in refusing to allow defendant to call King to testify for the defense, and the exclusion of his testimony did not deprive defendant of the right to present a defense or other constitutional trial rights.

2. Evidence of Third-party Culpability

By a motion in limine, defendant sought to introduce evidence that Carlos and Jessicas father, Rene, was the actual perpetrator of the charged offenses. Defendant offered three witnesses who were willing to testify about sexual advances Rene had made to them. A young female relative would testify that Rene had approached her on several occasions and grabbed at her breasts and crotch and made sexual comments to her. Erick Sanchez would testify that on two occasions when Rene was intoxicated, he grabbed Ericks crotch and asked to see his penis. Erick, who described defendant as his best friend, had often been at the Mountain View and San Jose homes, as several of his relatives had been living with the victims family. Defendant himself would testify that on two occasions when Rene was intoxicated he attempted to grab defendants crotch and asked to see defendants penis.

Citing People v. Lewis (2001) 26 Cal.4th 334 (Lewis) and People v. Kaurish (1990) 52 Cal.3d 648, the trial court excluded the proffered evidence, finding that defendant had failed to link Rene to the charged offenses. On appeal, defendant argues that this exclusion was error of constitutional magnitude. In his view, the evidence that Rene had engaged in improper sexual conduct was undisputed and identified Rene as a possible alternative suspect. Whether Rene was the actual molester, or whether his conduct raised a reasonable doubt as to defendants guilt, was for the jury to decide.

"`To be admissible, the third-party evidence need not show "substantial proof of a probability" that the third person committed the act; it need only be capable of raising a reasonable doubt of defendants guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third partys possible culpability . . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendants guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime. [Citation.] We emphasized that `courts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible ([Evid. Code,] § 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion ([Evid. Code,] § 352). [Fn. omitted.] [Citation.] A trial courts discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion." (Lewis, supra, 26 Cal.4th at pp. 372-373, quoting People v. Hall (1986) 41 Cal.3d 826, 833-834; accord, People v. Bradford (1997) 15 Cal.4th 1229, 1325.)

We find no abuse of discretion by the trial court in this case. Although the proffered evidence suggested that Rene had had the opportunity to commit the charged offenses, defendant did not show any link from Rene to these crimes. The conduct attributed to Rene did not involve assaults similar to the charged offenses, nor did they involve his own children. The evidence at best suggested that Renes disposition to commit sexual assaults against others connected him to the charged offenses against his children. "Contrary to defendants contention, the trial courts determination that the evidence presented only speculative issues did not invade the jurys province. [Citation.] The trial court simply made a threshold evidentiary ruling to exclude speculative evidence, the probative value of which did not outweigh its prejudicial effect. [Citations.]" (Lewis, supra, 26 Cal.4th at p. 373.) Accordingly, we reject defendants claim that the trial courts exclusion of the third-party culpability defense was constitutional error. (Cf. id. at pp. 373-374.)

3. Consecutive Sentences

The probation report recommended a midterm sentence of two years on count 2, pursuant to section 1170.1, subdivision (a), and a midterm sentence of 12 years on count 1. It went on to state that full, separate and consecutive sentences were mandated pursuant to section 667.6, subdivision (d), for both counts 1 and 5. The parties agreed at the sentencing hearing that defendants conviction on count 5 carried a full mandatory consecutive term of 15 years to life pursuant to section 667.6, subdivision (d), but disagreed about whether the sentence on the remaining counts should run concurrent with or consecutive to that mandatory term.

The court stated its reasons for sentencing defendant as follows: "Now, the probation officer was confused in the presentation of the sentence in the report, because the probation officer clearly thought that it was governed by 667.6(c), [sic] and I think counsel made it clear that that is not the case. [¶] So I have read and considered the probation report, and in this case Im going to use Count 2 as the base term. And I am going to take the midterm of two years, and then I am going to run Count 1 consecutive to that, pursuant to 667.6(c). [¶] I realize that it is discretionary, but I believe that under the circumstances of this case it is appropriate to run it consecutively based upon the lengthy period of time that these offenses occurred, the multiple victims, the numerous occasions, and the effect upon the victims and their family. [¶] I will impose the midterm, however, of twelve years which will be full and consecutive to Count 2, and then I am imposing a consecutive term of fifteen years to life for Count 5, pursuant to both 667.6(d) and 667.6(c). [¶] I believe that it is mandatory that it be run consecutive. But even if it were not, I would run it consecutively under 667.6(c)."

Defendant contends that although the trial court stated reasons for imposing a consecutive sentence on count 1, it failed to state any reasons for a full consecutive sentence. Consequently, he argues, a remand for resentencing is required.

In People v. Belmontes (1983) 34 Cal.3d 335, 347-348 (Belmontes), the Supreme Court explained: "In deciding whether to sentence consecutively or concurrently, and if consecutively, whether to do so under section 1170.1 or under the harsher full term provisions of subdivision (c) of section 667.6, the court is obviously making separate and distinct decisions. A decision to sentence under section 667.6, subdivision (c) is an additional sentence choice which requires a statement of reasons separate from those justifying the decision merely to sentence consecutively. [¶] This does not mean that the reasons justifying full term consecutive sentencing under section 667.6, subdivision (c) must necessarily be different than those used to justify the imposition of consecutive sentences under section 1170.1. The criteria listed in [former California Rules of Court,] rule 425 [now rule 4.425] — which, as noted, incorporate those of [former] rules 421 and 423 [now rules 4.421 and 4.423] — apply to both decisions and cover all degrees and nuances of depravity. What is required is an identification of the criteria which justify use of the drastically harsher provisions of section 667.6, subdivision (c). The crucial factor, in our view, is that the record reflect recognition on the part of the trial court that it is making a separate and additional choice in sentencing under section 667.6, subdivision (c)." (Fns. omitted.)

All further references to rules are to the California Rules of Court.

"The ideal method of proceeding would be for the trial court first to decide generally between concurrent and consecutive terms, following the criteria listed in [former] rule 425. Once the court has decided to sentence a defendant to consecutive terms and has stated its reasons therefor, it then must decide whether the consecutive terms should be under the principal/subordinate scheme of section 1170.1 or under the full and separate term scheme of section 667.6, subdivision (c). If the latter is chosen, the reasons therefor should be stated for the record." (Belmontes, supra, 34 Cal.3d at p. 348.)

Here, although the trial court did not follow the "ideal method" described in Belmontes, it appears that the court did recognize its duty to make two separate decisions. The trial court first stated that it understood that defendants sentence was not governed by section 667.6, subdivision (d), and that it had the discretion to impose a consecutive sentence. The trial court then stated its reason for imposing a consecutive sentence under section 667.6, subdivision (c), which provides for a full consecutive sentence. Although the trial court failed to provide separate reasons for its initial decision to impose consecutive sentences, we believe that record does reflect the "crucial factor," that is, the trial courts recognition that it was "making a separate and additional choice in sentencing under section 667.6, subdivision (c)." (Belmontes, supra, 34 Cal.3d at p. 348.)

Even if we were to find that the court erred in failing to state separate reasons for imposing a consecutive sentence and for imposing a full term consecutive sentence, such error would be harmless. A sentencing court may "repeat the same reasons" for choosing a consecutive sentence and for choosing to sentence under section 667.6, subdivision (c). (Rule 4.426(b); see also People v. Osband (1996) 13 Cal.4th 622, 729.) The court in this case could have referred to the numerous occurrences of the offenses and the effect defendants conduct had on the victims and their family as reasons for imposing consecutive sentences. We discern no reasonable probability that the court would not have done so. Resentencing is not required. (See, People v. Bishop (1984) 158 Cal.App.3d 373, 382-383.)

Disposition

The judgment is affirmed.

WE CONCUR: RUSHING, P. J., PREMO, J.


Summaries of

People v. Ruiz

Court of Appeals of California, Sixth District.
Nov 13, 2003
No. H025076 (Cal. Ct. App. Nov. 13, 2003)
Case details for

People v. Ruiz

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. OSCAR RUIZ, Defendant and…

Court:Court of Appeals of California, Sixth District.

Date published: Nov 13, 2003

Citations

No. H025076 (Cal. Ct. App. Nov. 13, 2003)