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People v. Tarango

California Court of Appeals, Sixth District
Jan 27, 2012
No. H035167 (Cal. Ct. App. Jan. 27, 2012)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. ERNESTO BONILLA TARANGO, Defendant and Appellant. H035167 California Court of Appeals, Sixth District January 27, 2012

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. CC933127

RUSHING, P.J.

I. Statement of the Case

Defendant Ernesto Bonilla Tarango appeals from a judgment entered after a jury convicted him of two counts of lewd or lascivious conduct with Y., a child under 14; one count of aggravated sexual assault against Y., who was more than 10 years younger than he was at the time; and three counts of lewd or lascivious conduct with Y. by force, violence, duress, menace, or fear. (Pen. Code, §§ 288, subds. (a) & (b)(1), 269.)

On appeal, defendant claims defense counsel rendered ineffective assistance in failing to investigate the opinion of the prosecutor’s medical expert concerning the cause of Y.’s medical condition and in failing to present opposing expert medical testimony. Defendant claims the trial court erred in permitting the expert to give that opinion. He further claims the admission of evidence of Child Sexual Abuse Accomodation Syndrome violated his constitutional right to a fair trial.

We affirm the judgment.

II. Facts

The victim Y. was born in 1993. She was 16 years old and a sophomore in high school when she testified. She testified that when she was in elementary school, defendant, her uncle, made her feel special and treated her like a “princess.”

Y. testified about three separate incidents that took place on or in front of defendant’s couch during summers of 2002 and 2003, when she was staying with defendant and his wife, Celia, in Livermore. One time, they were on the couch, and defendant tried to kiss her on the mouth. She got up and went into the bathroom. Another time, defendant was on the couch and she was on the floor in front of it. He scooted close to her and slid his hands over her shoulders, breasts, and stomach. She moved away from him. The third time, they were together on the couch watching TV, and he scooted close to her and started rubbing her upper and inner thigh. She dropped to the floor to get away from him.

Y. testified that also in 2002, defendant raped her. One day, when Celia had left to do laundry, defendant pulled her into his room, threw her on his bed, and pinned her there. He covered her mouth and told her not to scream. As she struggled against him, he pulled both of their pants down. He started rubbing her thighs with his legs. She felt a sharp, burning pain inside her vagina and felt his penis enter her. He later got off her, and she went to the bathroom. She saw defendant cleaning something near his thighs. She had lots of blood on her underwear, and defendant told her to throw them away and not tell anyone. She put them in the trash because she did not want Celia to find them.

Y.’s mother, P., testified that Y. called her at work that day. She was crying and wanted to be picked up. But P. had to work.

Y. testified about a number of incidents between 2004 and 2005 that occurred at defendant’s home after he and Celia had moved to San Jose. One night, she was asleep, and defendant came into her room, rubbed her hip and stomach up to her breasts. When she heard Celia, defendant got up. Y. then wrapped herself in a blanket for protection. On another day, defendant was underneath the house fixing some pipes and needed a flashlight. When Y. brought it to him, he grabbed her wrist and pulled her down on top of him. He then forced her to hold his erect penis, first outside his pants and again after he exposed it. He ultimately let her go, and she ran back upstairs to wash her hands. Y. said that sometime after that, she was in the playroom with defendant’s two sons. Defendant came in, told his sons to leave, and locked the door. He then approached her, pinned her against the wall, and told her that if she ever said anything he would hurt her or her family. On another occasion, Y. was in a bedroom, and defendant came in and locked the door. He then kissed her, pinned her against the wall, and pressed himself against her. She could feel his erect penis. Y. said the last incident occurred when she was around 12. She said defendant came into the room she was in, threw her on the floor, and pinned her there. He tried to kiss and touch her, but she fought back and told him that the next time he tried to touch her, she would kill him.

For some years, Y. did not tell anyone that defendant had molested her. She said she did not want to cause defendant trouble with his children, whom she cared about, and did not want them have to grow up without a father, as she did. Two or three years before testifying in court, she told two close family friends, Jose and Paula. Sometime later, Y. told her boyfriend, who then convinced her that she had to tell her mother. When she disclosed the molestation to her mother and stepfather, they were shocked, and all three went to defendant’s house and confronted him. He denied molesting Y., laughed, and called her a liar.

Both Jose and Paula testified that two or three years before, Y. told them that defendant had molested her.

In 2009, Y. disclosed the molestation to Dr. Lee Anna Botkin, who was her pediatrician. Dr. Botkin immediately reported this to the police. Y. gave statements to the San Jose Police Department and the Santa Clara County Sheriff’s Office.

Dr. Botkin is a board-certified pediatrician, who has conducted thousands of genital exams on children and as a result had reported several cases of suspected child abuse. Dr. Botkin was also very familiar with a childhood skin disorder called alopecia areata, which involves hair loss on the scalp. Dr. Botkin testified as an expert on the diagnosis of alopecia areata and the medical evaluation of sexually abused children.

Dr. Botkin, who had been Y.’s pediatrician from when Y. was seven years old, reviewed Y.’s medical records. Over the years since 2002 and 2006, she had seen Y. for bloody stool, vaginal bleeding and irritation, stomach pain, and hair loss consistent with alopecia areata. At times, she noticed a nodule on Y.’s hymen; and vaginal and vulvar infection, irritation, and/or discoloration. However, at the time, Dr. Botkin did not consider any of these conditions to be indications of sexual abuse or trauma. Indeed, as part of a general examination on certain occasions, Dr. Botkin had asked Y. if she had ever suffered any abuse or trauma, and Y. said she had not. However, in January 2009, Y. and her mother came to the office and told her that defendant had molested her from age eight to 13.

Concerning the bleeding that Y. experienced over a period of time, Dr. Botkin opined that it could have been caused by a urinary tract infection, a problem in Y.’s bowels, trauma, or vaginitis. She ruled out all but vaginitis as the probable diagnosis. When asked whether in retrospect, she had any reason to change her opinion concerning what “might” have been the cause of Y.’s bleeding, Dr. Botkin opined that given Y.’s disclosure of abuse, the “multiple visits for genital complaints seemed consistent with sexual abuse.” However, Dr. Botkin reiterated that none of the examinations she and other colleagues had performed over the years showed trauma suggestive of sexual abuse.

Concerning Y.’s hair loss, Dr. Botkin said Y. first reported it in 2006. Dr. Botkin observed four bald patches on her scalp. She explained that the potential causes of alopecia areata are thyroid conditions and fungal infections. She also noted that children sometimes pull out their own hair. However, in light of the research on the disorder and her discussions with dermatologists, she said that there is no generally agreed upon medical opinion concerning its cause.

Mary Ritter, a physician assistant on the Sexual Assault Response Team (SART) at Valley Medical Center, testified as an expert in the medical evaluation of child sexual abuse. She testified that she conducted a SART examination of Y. She knew of Y.’s report that defendant had abused her from ages eight to 12. She also knew that Y. had admitting having consensual sex once with her boyfriend. Ms. Ritter testified that Y.’s reports of bleeding and painful urination were consistent with physically traumatic events such as tearing or abrasion or penetration. She further testified that her examination of Y.’s hymen suggested prior penetrating trauma consistent with Y’s report of abuse. She conceded, however, that she did not know the condition of Y.’s hymen before the exam, there was no evidence of vaginal trauma prior to the exam, and she did not know when the apparent penetrating trauma to Y.’s hymen had occurred.

Carl Lewis, a retired police officer with specialized training in the investigation of child sexual abuse, who had in the past qualified as an expert on Child Sexual Abuse Accommodation Syndrome (CSAAS), testified about it in this case. He explained that the syndrome attempts to dispel popular preconceptions and myths concerning circumstances that often present themselves in cases of child sexual abuse that may appear to be inconsistent with a claim of abuse but in fact are not, such as the secrecy that often surrounds its occurrence; the intimidation and rewards that helps maintain the secrecy; the helplessness, lack of resistance, denial, accommodation, and normalization of the abuse that children exhibit to deal with it; and the delay in reporting abuse.

The Defense

Celia testified that when Y. and her mother and step-father confronted defendant with Y.’s claim of abuse, she called Y. a liar, and defendant said Y. was crazy. She said that the entire time that she was married to defendant, she stayed inside their home. She said she did not do the laundry when they lived in Livermore; defendant did. Celia further testified that she never saw bloody sheets, and Y. never spent the night at their home in San Jose.

Y. testified that she and defendant were alone when some of the abuse occurred because Celia had left to do the laundry.

Defendant testified that he was rarely, if ever, alone with Y. And he denied that he ever acted violently or sexually inappropriately toward Y.

III. Ineffective Assistance of Counsel

Defendant contends that his attorney rendered ineffective assistance of counsel because he first failed to investigate Dr. Botkin’s opinion that Y.’s alopecia areata and other genital complaints, including bleading, were caused by sexual abuse and then failed to call an expert to counter Dr. Botkin’s opinions.

To obtain reversal due to ineffective assistance, a defendant must first show “that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney[.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1003; Strickland v. Washington (1984) 466 U.S. 668, 688.) Second, the defendant must show that there is “a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings.” (People v. Cunningham, supra, 25 Cal.4th at p. 1003.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Staten (2000) 24 Cal.4th 434, 450-451.)

Because the defendant bears this burden, “[a] reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” (People v. Carter (2003) 30 Cal.4th 1166, 1211.) Moreover, where the record on direct appeal “does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation.” (People v. Anderson (2001) 25 Cal.4th 543, 569.) Under such circumstances, claims of ineffective assistance are generally rejected on direct appeal and more properly raised in a petition for habeas corpus, which can include declarations and other information outside the appellate record that reveal the reasons for the challenged conduct. (People v. Mayfield (1993) 5 Cal.4th 142, 188 [“tactical choices presented... on a silent record” are “better evaluated by way of a petition for writ of habeas corpus” and will be rejected on direct appeal].)

Defendant’s claims are based on Dr. Botkin’s response to a question concerning whether she had any reason to change her opinion concerning what might have been the cause of Y.’s complaints about bleeding. As noted, Dr. Botkin responded, “In retrospect, given her disclosure to me in January of this year, multiple visits for genital complaints seemed consistent with sexual abuse.”

Since Y.’s alopecia areata involved the loss of hair from her scalp, Dr. Botkin’s response could not reasonably be understood to mean that the alopecia “seemed” consistent with abuse. Moreover, Dr. Botkin testified that experts do not agree on the cause of alopecia areata.

As to Y.’s genital complaints, primarily bleeding, Dr. Botkin’s testimony, when read as a whole, did not represent an unqualified and direct opinion or an unequivocal implied view that Y.’s genital conditions were in fact caused or even were probably caused by traumatic sexual abuse. Rather, the main thrust of Dr. Botkin’s testimony was that Y.’s bleeding and genital infections could have had a number of different causes. And although her examination of Y. during the time that Y. said she had been raped did not reveal any evidence suggesting that at the time that Y. suffered any traumatic sexual abuse, her complaints seem to be consistent with such abuse.

The record is silent concerning defense counsel’s trial strategy and choices concerning Y.’s medical history and Dr. Botkin’s testimony. Defendant assumes that counsel did not investigate Dr. Botkin’s testimony or consider calling an expert. However, it would be speculation on our part to conclude that before trial, counsel conducted no investigation and did not consider calling an expert. Finally, even if we assume that counsel did not investigate or consider calling his own medical expert, such tactical decisions do not, in our view, appear to be unreasonable as a matter of law.

First, the record before us does not establish that sexual abuse could not have caused Y.’s genital problems or that defense counsel could have found a medical expert to offer such an opinion. Second, given Dr. Botkin’s general testimony—i.e., that she never found any evidence suggestive of traumatic abuse—defense counsel could have found it unnecessary to investigate whether sexual abuse could have caused Y.’s conditions or call a defense expert to testify to the same effect. And as to Dr. Botkin’s brief comment that in retrospect, Y.’s genital conditions seemed to be consistent with her report of abuse, counsel reasonably could have concluded that cross-examination of Dr. Botkin would be sufficient to undermine, if not dispel, any suggestion that Y.’s medical conditions corroborated her testimony about the abuse. Indeed, that is what counsel did. He focused on the fact that none of Y.’s examinations before her disclosure revealed any evidence to suggest sexual abuse, and when asked at the time, Y. denied that she had been abused or had even engaged in sexual activity.

Counsel also used cross-examination to solicit testimony that any evidence of trauma to Y.’s hymen that was noticed in Y.’s SART exam could have taken place long after the earlier examinations of Y. that Dr. Botkin had conducted and reviewed, which was long after the alleged abuse by defendant.

In short, defendant has failed to demonstrate, and the record does not conclusively establish, that counsel’s performance at trial fell below the standard of a reasonably competent attorney.

For all of these reasons, defendant also could not establish that counsel’s allegedly unreasonable omissions were prejudicial. Moreover, we note that the omissions related to only one charge: the aggravated sexual assault, i.e., the rape. The other charges involved fondling, rubbing, touching, and kissing. Dr. Botkin’s comment that Y.’s genital complaints seemed consistent with abuse did not have any tendency to corroborate Y.’s testimony concerning the numerous other instances of misconduct by defendant. Those charges hinged solely on Y.’s testimony and her credibility, and the jury believed them.

Furthermore, a finding of prejudice would necessarily hinge on counsel’s failure to challenge and undermine Dr. Botkin’s comment that Y.’s complaints seemed consistent with abuse and counter it with opposing expert testimony. However, it would be speculation on our part to assume that such expert testimony might exist. Moreover, the corroborative impact, if any, of Dr. Botkin’s comment was weak. Dr. Botkin never found evidence of trauma that might have been caused by a rape. Nor did she explain how or why Y.’s medical conditions seemed consistent with traumatic sexual abuse. On the other hand, Ms. Ritter provided far more corroborative support for Y.’s claim of rape. Ms. Ritter directly testified that her examination of Y. revealed actual evidence of penetrating trauma consistent with Y.’s claim of sexual abuse.

Given Ms. Ritter’s testimony, we reject defendant’s assertion that Dr. Botkin’s single comment was the only independent evidence corroborating Y.’s testimony about being abused. Indeed, Ms. Ritter’s testimony was far more direct corroboration than Dr. Botkin’s qualified statement that Y.’s complaints “seemed’ consistent with abuse.

Finally, we note that defense counsel fully cross-examined Y., thereby revealed weaknesses and inconsistencies in her testimony and credibility. He also fully cross-examined Ms. Ritter, and Dr. Botkin and revealed weaknesses and inconsistencies in their medical testimony.

Under the circumstances, we would not find a reasonable probability that defendant would have obtained a more favorable verdict on all or any of the charges had counsel conducted a more extensive investigation of Dr. Botkin’s proposed testimony and looked for an expert to challenge her comment. In other words, even if we assume that counsel failed to investigate and even if we assume that there was an expert to testify that Y.’s genital complaints were not consistent with traumatic sexual abuse, counsel’s omissions do not undermine our confidence in the verdict.

Defendant’s reliance on People v. Jones (2010) 186 Cal.App.4th 216 and Sechrest v. Ignacio (9th Cir. 2008) 549 F.3d 789 is misplaced. We need not discuss those cases in detail. It suffices to say that both are factually distinguishable, and neither suggests that counsel here rendered ineffective assistance.

IV. Permitting Dr. Botkin’s Testimony

In a related claim, defendant contends that the court erred in permitting Dr. Botkin to make her comment that Y.’s genital problems seemed consistent with traumatic sexual abuse.

Given our discussion of possible prejudice from counsel’s failure to investigate Dr. Botkin’s testimony and counter her comment with opposing expert testimony, we find that any alleged error in admitting the comment or qualifying Dr. Botkin to testify as an expert was harmless. Simply put, it is not reasonably probable defendant would have obtained a more favorable verdict in the absence of the comment. (People v. Watson (1956) 46 Cal.2d 818, 836.)

V. CSAAS Testimony

Defendant contends that the trial court erred in permitting Mr. Lewis to testify concerning CSAAS in general and to testify in particular that a child’s delay in reporting abuse is irrelevant in considering the child’s credibility as a witness.

First we note that after conducting voir dire, the prosecutor sought to have Mr. Lewis designated as an expert on CSAAS. Defense counsel did not object and submitted the matter on the basis of voir dire. Under the circumstances, defendant forfeited any claim on appeal that Mr. Lewis was not qualified to testify as an expert on the subject of CSAAS. (See, e.g., People v. Doolin (2009) 45 Cal.4th 390, 448.)

Second, the record reveals that defense counsel did not object to any particular aspect of Mr. Lewis’s testimony during direct examination; nor did he ever move to strike Mr. Lewis’s testimony. Accordingly, defendant forfeited any claim on appeal that any of Mr. Lewis’s testimony was inadmissible or that the court erred in admitting it. (Evid. Code, § 353; People v. Mattson (1990) 50 Cal.3d 826, 853-854.)

VI. Disposition

The judgment is affirmed.

WE CONCUR: PREMO, J.ELIA, J.


Summaries of

People v. Tarango

California Court of Appeals, Sixth District
Jan 27, 2012
No. H035167 (Cal. Ct. App. Jan. 27, 2012)
Case details for

People v. Tarango

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ERNESTO BONILLA TARANGO…

Court:California Court of Appeals, Sixth District

Date published: Jan 27, 2012

Citations

No. H035167 (Cal. Ct. App. Jan. 27, 2012)