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People v. Salomon

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 23, 2012
D057945 (Cal. Ct. App. Jan. 23, 2012)

Opinion

D057945

01-23-2012

THE PEOPLE, Plaintiff and Respondent, v. DAVID SALOMON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. RIF149933)

APPEAL from a judgment of the Superior Court of Riverside County, Donald E. Rudloff, Judge. (Retired Judge of the former Mun. Ct. for the San Diego North County Jud. Dist. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified.

After a trial involving two victims, a jury convicted David Salomon of two counts of committing a lewd act on a child under the age of 14; three or more acts of substantial sexual conduct with a child under the age of 14; three counts of committing a lewd act on a child under the age of 14 by use of force; sexual penetration with a foreign object by use of force; and rape by force or fear. The jury also found true an allegation of multiple victims. The court sentenced Salomon to prison for a determinate term of 20 years, plus a consecutive indeterminate term of 15 years to life on the enhancement.

On appeal, Salomon contends the court erred by giving the jury a modified version of CALCRIM No. 226, which delineates factors it may consider in assessing witness credibility; the prosecutor committed prejudicial misconduct during closing argument;

and the abstract of judgment should be corrected to delete a fine under Penal Codesection 290.3 because the court found he was unable to pay a fine. The People concede the latter point, and we modify the judgment to strike the fine. In all other respects, we affirm the judgment.

Future statutory references are also to the Penal Code unless otherwise specified.

FACTS


Prosecution Case


Crimes Against Jane Doe I

In 2002, after their mother died, Jane Doe 1 and her sister Natalie went to live with their maternal aunt and her husband, Salomon. At the time, Jane Doe 1 was eight years old and Natalie was 10 years old. They have another sister, Jane Doe 2, who was then 12 years old. Jane Doe 2 lived with another relative for a while, but she missed her sisters and when she was around 13 years old she moved in with her aunt and Salomon.

The parties agreed that the victims' names would be used at trial, but the names would be stricken from court documents and transcripts after the close of trial and replaced with Jane Doe 1 and Jane Doe 2.

Jane Doe 1 testified that when she was 10 or 11 years old, Salomon began touching her inappropriately. One morning before school she awoke to find him touching her breast over her clothing. He asked her whether she wanted him to help her get dressed, and she said no and pushed his arm away. He apologized and warned her that if she told anyone he could go to prison. Between the ages of 10 and 13, he touched her breasts approximately 20 times. He would also kiss her on the lips. Sometimes after touching her he would pray with her. She wanted the touching to stop, but she did not report it because she did not "want to ruin the family."

As Jane Doe 1 got older the touching escalated. When she was 14 or 15 years old, Salomon went into her bedroom many mornings after his wife left for work and touched her breasts and vagina over her clothing. Once in his bedroom he grabbed her, kissed her, and got on top of her. He held her down more than five times, and she told him she would not allow him to take her virginity. Once when she was using the computer in his office, he grabbed her and touched her breast. She testified that during each incident she would push him away, but "sometimes he'd pull me back and he's stronger than me." Salomon "would say he was sorry all the time . . . after."

When Jane Doe 1 was 16 years old, Salomon touched her inappropriately more than 10 times, with the last incident occurring in March 2009. A few days later, she told her brother Isaac about the molestations. Isaac moved her to the home of another relative, and took her to the police station where she gave a statement. She had also told several friends about the molestations.

Crimes Against Jane Doe 2

Jane Doe 2 testified she first lived with her aunt and Salomon when she was around five years old and her mother was in drug rehabilitation. During that period, Salomon went into her bedroom at night more than once and touched her vagina and bottom over her clothing. She was afraid to tell anyone.

When Jane Doe 2 returned to Salomon's home as a teenager, he began molesting her. He would come into her bedroom and touch her "private areas." When she was about 16 or 17 years old, he would remove his pants and her clothes, lie on top of her, put his penis into her vagina, and ejaculate inside or outside of her body. This occurred more than five times. He also digitally penetrated her vagina.

Jane Doe 2 felt forced and experienced pain. She wanted to tell Salomon to stop, but she was afraid that would result in her being sent away from her sisters. Sometimes she could push him away, but once she tried to push him off of her and he kept going. He apologized to her each time he touched her, and said, "I'm sorry, I shouldn't do this." His conduct, however, continued. He would come into her bedroom to pray with her, but he would also touch her.

One night, Salomon's wife caught him in Jane Doe 2's bedroom touching her "private area." After that, the family had two talks. The first included Jane Doe 2, her aunt and Salomon. Salomon apologized and said, "I shouldn't be going into your rooms, and then when we pray, we should just pray on the table." The other meeting included Jane Doe 1 and Natalie. Salomon apologized and "said that he's been doing some inappropriate stuff with some of us." The family then prayed. A rule was made that Salomon was no longer allowed to go into the girls' bedrooms, but his molestation of Jane Doe 2 continued.

Jane Doe 1 testified she suspected Salomon was also molesting Jane Doe 2. She saw him go into Jane Doe 2's bedroom late at night more than 10 times. Jane Doe 1 watched the clock and he would stay in Jane Doe 2's bedroom for up to an hour. One evening when Jane Doe 1 and her aunt were watching TV, the aunt asked her where Salomon was. Jane Doe 1 said, "Oh, he's praying with [Jane Doe 2]." The aunt went to Jane Doe 2's bedroom and caught Salomon with her. The following day a family meeting was held, and Salomon stated, "I've been touching some of you in inappropriate ways," "so from now we're going to be praying in the living room and not in your room."

Jane Doe 2 moved from the home when she was 18 years of age and in college. After she moved out, Isaac told her that Jane Doe 1 had revealed Salomon's molestations to him. Isaac asked Jane Doe 2 whether Salomon had molested her also, and she said yes. Jane Doe 2 also gave the police a statement. In his testimony, Isaac corroborated his sisters' testimony about revealing the molestations to him.

Defense Case

Salomon's brother lived in the Salomon home for approximately a year during 2003 and 2004, and his bedroom was next to Jane Doe 2's bedroom. The home was fairly quiet at night and he would hear "just your normal sounds that come with the nighttime," such as barking dogs. He did not hear or see anyone enter Jane Doe 2's bedroom late at night or early morning.

Between 2000 and April 2003, Salomon's son-in-law lived in Salomon's home. His bedroom was next to Jane Doe 2's bedroom. He was a light sleeper because he was on call as a physician. He could hear "anything and everything" at night because the floor was tiled and the doors all squeaked. He never heard anyone enter Jane Doe 2's bedroom late at night. He also never saw Salomon go into her bedroom or Jane Doe 1's bedroom to pray with them. Both girls were happy when he was living there.

Between 2002 and 2009, one of Salomon's daughters stayed at his home periodically when her husband was on business trips. In 2003 Jane Doe 2 confided to the daughter that once her mother's boyfriend had touched her inappropriately, she told her mother, and they reported the incident to authorities. The daughter asked both Jane Doe 1 and Jane Doe 2 several times over the ensuing years whether they had been touched inappropriately, and they said no. In 2009 Jane Doe 1 was upset with her aunt and Salomon for grounding her for not turning in homework assignments. When the daughter spoke to Jane Doe 1 about it, she said she had been having nightmares and could not sleep. She explained that when her mother was alive she spent the night with a friend, where a man molested her.

A grade school friend of Jane Doe 1 testified that in 2007 she unemotionally reported that Salomon tried to kiss her. Jane Doe 1 told her friend not to tell anyone. The friend encouraged Jane Doe 1 to go to the police, but she did not want to do so. About a month later, Jane Doe 1 said Salomon tried to kiss her again. At the time, Jane Doe 1 was upset because her aunt and Salomon had grounded her for "being bad at school or getting bad grades or something like that." Jane Doe 1 complained that she was tired of being disciplined, and she wished she had more freedom. She never expressed any fear of Salomon.

Another grade school friend testified that Jane Doe 1 never said Salomon molested her, and she did not appear nervous or afraid of him. Jane Doe 1 did say that he tried to kiss her on the lips. She was happy at home when she was not in trouble, but when she was in trouble she wanted to run away.

During seventh grade, the mother of one of her friends gave Jane Doe 1 rides home from school. One day Jane Doe 1 told the mother "out of the blue" that "her uncle would say that he was going to go pray in the room with her [Jane Doe 2] and that [they] would have sex." Jane Doe 1 "just said she knew that's what was going on." Jane Doe 1 never expressed any fear of Salomon or said he molested her. At times Jane Doe 1 did not want to go home because "she didn't want to clean her room or she got grounded."

Natalie shared a bedroom with Jane Doe 1 initially, but she then shared a room with Jane Doe 2. Natalie did not see or hear any signs of molestation, and neither sister mentioned any inappropriate touching. Natalie denied that the aunt caught Salomon in Jane Doe 2's room, or that there were any family meetings where molestation was discussed. Jane Doe 1 once came at Natalie with a knife. Jane Doe 1 pressured Natalie not to testify at trial.

On rebuttal, the other sister of Jane Doe 1, Jane Doe 2 and Natalie, testified that on the first day of trial Natalie told her in a phone call "that she would do and say anything to get her [u]ncle . . . out of jail because he's an old man and he didn't deserve to be in there. He didn't deserve to die in there, and that if she could, she would take his place for him."

DISCUSSION


I


CALCRIM No. 226

The trial court has a sua sponte duty to instruct the jury on factors pertaining to witness credibility. (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883-884.) The court here instructed the jury with a modified version of CALCRIM No. 226, which delineates factors the jury may consider in assessing witness credibility. (See also Evid. Code, § 780.) The court omitted the bracketed optional factor, "[What is the witness's character for truthfulness?]" (CALCRIM No. 226.) The court is required to "[g]ive all of the bracketed factors that are relevant based on the evidence." (Bench Notes to CALCRIM No. 226 (2011) p. 63.)

Salomon contends the court erred by omitting this factor, since there is evidence Jane Doe 1 and Jane Doe 2 had been untruthful in the past. He cites the testimony of Salomon's son-in-law that he had bought Jane Doe 2 a cell phone and she frequently lied to him about her use of cell phone minutes, the testimony of Salomon's daughter that Jane Doe 1 lied to her about completing homework assignments, the testimony of Natalie that Jane Doe 1 lied "[a] lot" about unspecified things, and the testimony of the principal of Jane Doe 1's private school that she once lied about possessing a small quantity of marijuana at school. Salomon also cites the testimony of Natalie that she was required to share a bedroom with Jane Doe 2 because Jane Doe 2 "had snuck a guy in her room one time."

Defense counsel asked the principal, "And how was [Jane Doe 1's] character for being truthful to you?" The court sustained its own objection to the "improper question." Defense counsel did not suggest the principal could offer character evidence.

We review de novo whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) Our task is to determine whether the trial court " 'fully and fairly instructed on the applicable law.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)

The evidence at issue is relevant to the credibility of Jane Doe 1 and Jane Doe 2 as witnesses. Evidence Code section 787 excludes specific instances of conduct to attack the credibility of a witness, but insofar as criminal cases are concerned "it was held to be abrogated by the 'Truth-in-Evidence' provisions of Proposition 8 (Cal. Const., art. I, § 28, subd. (d))." (People v. Franklin (1994) 25 Cal.App.4th 328, 336, citing People v. Harris (1989) 47 Cal.3d 1047, 1080-1082, overruled on another ground in People v. Wheeler (1992) 4 Cal.th 284, 299, fn. 10.) As the court advised defense counsel here, "You can, obviously, argue that the witness has said that Jane [Does] 1 and 2 were . . . liars. That's certainly evidence and you can argue from that, but the language or the terminology [']character evidence['] is specific in the law, and we do not have any character evidence before the jury." Defense counsel appeared to agree, as he stated, "Yes, Your Honor. I see there is an issue."

Salomon develops no particular argument, and cites no legal authority, indicating that the term "character for truthfulness" as used in the bracketed optional factor in CALCRIM No. 226 includes specific instances of conduct. "A point not argued or supported by citation to authority is forfeited." (People v. Anderson (2007) 152 Cal.App.4th 919, 936.)

In any event, it appears that the term "character for truthfulness" in CALCRIM No. 226 refers to a witness's general reputation for truthfulness. CALCRIM No. 226 also includes the optional bracketed paragraph, "[If the evidence establishes that a witness's character for truthfulness has not been discussed among the people who know him or her, you may conclude from the lack of discussion that the witness's character for truthfulness is good.]" (Italics added.) The court gave the jury this portion of the instruction as relevant based on the evidence, and Salomon raised no objection.

"The traditional method of proving a relevant trait of character is by evidence of reputation. [Citations.] And the theory of impeachment by proof of bad reputation necessarily assumes some locality in which the witness circulates and in which his or her reputation is likely to be known." (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 288, p. 362.) " '[T]he witness to such reputation must, at least, be acquainted with the prevailing impression in the community.' " (Ibid.) " 'Reputation is the estimation in which an individual is held; in other words, the character imputed to an individual rather than what is actually known of him either by the witness or others.' [Citation.] The rule that lay opinion testimony must be based on the witness's personal observation thus does not apply to reputation testimony." (People v. McAlpin (1991) 53 Cal.3d 1289, 1311.) The evidence Salomon cites is not character evidence, and thus we find no error.

Moreover, any arguable error is subject to a harmless error standard of review (People v. Moore (2011) 51 Cal.4th 1104, 1130; People v. Watson (1956) 46 Cal.2d 818, 836), and we find no prejudice. The People's case rested entirely on the credibility of Jane Doe 1 and Jane Doe 2, as there was no physical evidence or corroborating eyewitness testimony. The court instructed the jury under CALCRIM No. 226 that in assessing their credibility, it "may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony," a factor that logically includes past instances of lying.

The court also instructed the jury under CALCRIM No. 226 that among the factors it may consider were "the witness's recollection and description of events; whether the witness's testimony was influenced by bias, prejudice, or a personal relationship with someone involved in the case; whether the witness made a "statement in the past that is consistent or inconsistent with his or her testimony"; how reasonable the testimony was in light of all other evidence in the case; and whether other evidence disproved the witness's testimony. The instruction also advised, "If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says."

Further, Salomon's entire closing argument was a challenge to Jane Doe 1's and Jane Doe 2's credibility. He urged the jury not to believe them, emphasizing inconsistencies in their testimony, their prior lies to other witnesses, and their motive to lie. He argued his nieces were angry with him and their aunt for subjecting them to house rules and grounding them or imposing other discipline when they broke the rules.

The jury, however, found the testimony of both Jane Doe 1 and Jane Doe 2 credible as it convicted Salomon on all counts. We find no reasonable probability the result would have been more favorable to him had the CALCRIM No. 226 instruction also included the character evidence factor. Salomon's assertion the jury may have been unsure of how to evaluate the evidence of past lies without inclusion of that factor lacks merit. The absence of the instruction did not preclude Salomon from asking the jury to draw the common-sense inference that past lies affected credibility. (See People v. Murillo (1996) 47 Cal.App.4th 1104, 1108, citing Walbrook Ins. Co. v. Liberty Mutual

Ins. Co. (1992) 5 Cal.App.4th 1445, 1462 ["import of the missing instruction was so blindingly obvious that its absence comes close to being superfluous"].)

Salomon also asserts the court erred by omitting the following bracketed optional factor from CALCRIM No. 226, "[Has the witness engaged in [other] conduct that reflects on his or her believability?]" Salomon, however, raised no objection to the omission of this factor, and thus he forfeited appellate review of the issue. (People v. Guiuan (1998) 18 Cal.4th 558, 569-570.) In any event, any arguable error was harmless for reasons discussed.

II


Asserted Prosecutorial Misconduct

Additionally, Salomon contends the prosecutor committed prejudicial misconduct. "The standards governing review of misconduct claims are settled. 'A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such " 'unfairness as to make the resulting conviction a denial of due process.' " [Citations.] 'Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial.' [Citation.] 'In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review.' [Citation.] When a claim of misconduct is based on the prosecutor's comments before the jury, ' "the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.(People v. Friend (2009) 47 Cal.4th 1, 29.) Wedo not lightly infer" ' that the jury drew the most damaging rather than the least damaging meaning from the prosecution's statements. [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 553-554.)

Salomon asserts the prosecutor violated Griffin v. California (1965) 380 U.S. 609, 615 (Griffin) by commenting on his decision not to testify. "Griffin holds that the privilege against self-incrimination of the Fifth Amendment prohibits any comment by the prosecution on a defendant's failure to testify at trial that invites or allows the jury to infer guilt therefrom." (People v. Roybal (1998) 19 Cal.4th 481, 514.) "Pursuant to Griffin, it is error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf." (People v Hughes (2002) 27 Cal.4th 287, 371.) It may also be error "for the prosecution to refer to the absence of evidence that only the defendant's testimony could provide. [Citation.] But although ' "Griffin forbids either direct or indirect comment upon the failure of the defendant to take the witness stand," ' the prohibition ' "does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or call logical witnesses.(People v. Hughes, supra, at p. 372.)

Here, the prosecutor stated during closing argument: "Isaac saw the defendant taking [Jane Doe 2] into his bedroom to pray. I asked Isaac, did the defendant ever take you into the bedroom . . . to pray like [Jane Doe 2], and he said, no. So I ask Mr. Salomon, do boys not need to pray as much as girls, or are boys just not as sexually attractive as little girls?" The court sustained Salomon's objection, "As to Mr. Salomon," and admonished the jury to ignore the remark. The prosecutor continued, stating, "So what's wrong, Isaac shouldn't pray? That should only be for little girls?" Salomon did not object to this comment.

In our view, the reference to Salomon does not constitute Griffin error. The question the prosecutor posed was a rhetorical one based on the state of the evidence. (See People v. Hughes, supra, 27 Cal.4th at pp. 374-375; People v. Medina (1995) 11 Cal.4th 694, 756.) Salomon's prayer with Jane Doe 1 and Jane Doe 2, but not with Isaac, raises an inference that prayer was part of a molestation scheme. Read in context, "the statement here at issue could not reasonably have been understood as a comment by the prosecutor on defendant's failure to testify." (People v. Hughes, supra, at p. 375.) The prosecutor's right "to discuss the merits of a case, both as to the law and facts, is very wide, and he has the right to state fully his views as to what the evidence shows, and as to the conclusions to be fairly drawn therefrom." (People v. Beivelman (1968) 70 Cal.2d 60, 76-77.) Additionally, "the trial court instructed the jury not to draw an inference from defendant's decision not to testify, and we presume the jurors understood and applied the instruction." (People v. Brady (2010) 50 Cal.4th 547, 566, fn. 9.)

For instance, in People v. Lancaster (2007) 41 Cal.4th 50, 84, the court found no Griffin error when the prosecutor made the following comment: "It was new [a Liquid-Plumr bottle found at the scene], it still had liquid in it, and had the defendant's prints all over it. There's been no explanation offered as to how they possibly could have been there." In People v. Hughes, supra, 27 Cal.4th at pp. 374-375, the court found the following statement was a fair comment on the evidence rather than Griffin error: "Why do you bring a knife if you don't intend to use it, if you're not willing to kill somebody with the knife that you bring with you to somebody else's home when you go to rob them or burgle their apartment?" In People v. Medina, supra, 11 Cal.4th, at pp. 755-756, the court found no Griffin error when the prosecutor stated, "Where was Mr. Lewis' [defense counsel] rational explanation? How does he explain away the evidence. . . .?"
--------

Salomon also asserts prosecutorial misconduct based on the supposed violation of a court ruling. Before closing arguments, the court advised the parties that since no evidence of Salomon's character was adduced, the prosecutor could not argue he has "a bad character because there is no good character evidence."

During argument, the prosecutor discussed Salomon's "[f]ailure to call logical witnesses." The prosecutor noted that Salomon's wife did not testify, and he objected. The court overruled the objection, explaining: "This is argument. Counsel is allowed to argue the testimony or the circumstances plus any reasonable inferences that are drawn therefrom." The prosecutor went on to say, "Where is the defendant's wife? Where is the one person that could come into court, take an oath and say, . . . I didn't catch the defendant and [Jane Doe 2] in bed. You know what, we never had a family meeting about the defendant touching the kids and him claiming he's sorry."

The prosecutor then said, "Where are any character witnesses for the defendant? You heard from some witnesses from the defense, and I'll talk about them, but where are the character witnesses?" Salomon objected, stating, "Character witnesses." The court sustained the objection and advised the prosecutor to "[u]se a different approach." Salomon asserts the character witness comment was a "blatant violation of the trial court's prior ruling."

We conclude the comment does not violate the court's order since it does not accuse Salomon of having bad character. The People argue the prosecutor was merely exercising the right to comment on a defendant's failure to call logical witnesses (People v. Wash (1993) 6 Cal.4th 215, 262-263), and Salomon cites no authority to support the notion that character witnesses were not logical witnesses in this sexual molestation case. In any event, he has shown no prejudice. The court sustained his objection to the character witness comment, and we presume the jury ignored it. The comment was brief, and it pales in comparison to the prosecutor's remarks about Salomon's wife not testifying as a logical witness to refute testimony of Jane Doe 1 and Jane Doe 2.

Reversal is unwarranted on both federal and state grounds. The prosecutor did not use deceptive or reprehensible methods to persuade the jury, and there is no reasonable likelihood the jury construed or applied the remarks in question in an objectionable fashion. (People v. Friend, supra, 47 Cal.4th at p. 29.)

III


Abstract of Judgment

At sentencing, the court declined to impose a fine under section 290.3, which applies to sex offenders, finding Salomon had no ability to pay. (§ 290.3, subd. (a).) The court's minutes and the abstract of judgment, however, include the imposition of a $2,300 fine under the statute. The People concede, and we agree, that the judgment must be modified to strike the fine.

DISPOSITION

We modify the judgment to strike the fine under section 290.3. In all other respects the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment in accordance with this opinion, and to forward a copy of it to the California Department of Corrections and Rehabilitations.

__________

McCONNELL, P. J.
WE CONCUR:

_______

BENKE, J.

________

O'ROURKE, J.


Summaries of

People v. Salomon

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 23, 2012
D057945 (Cal. Ct. App. Jan. 23, 2012)
Case details for

People v. Salomon

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DAVID SALOMON, Defendant and…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 23, 2012

Citations

D057945 (Cal. Ct. App. Jan. 23, 2012)