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People v. Torres

California Court of Appeals, Fourth District, Third Division
Jul 31, 2008
No. G038227 (Cal. Ct. App. Jul. 31, 2008)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County No. 05CF0994, Patrick H. Donahue, Judge.

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

SILLS, P. J.

A jury convicted Serug Torres Torres of 11 counts of non-forcible lewd conduct involving two girls under the age of 14. The trial court sentenced him to a 20-year prison term.

On appeal, Torres contends the trial court erred by admitting evidence of uncharged sexual offenses under Evidence Code section 1108. He claims the court’s ruling violates section 1108 and constitutes an abuse of discretion under section 352. He also argues that the court’s ruling, which admitted evidence of uncharged sexual acts, constitutes a violation of his constitutional right to due process and his privilege against self-incrimination. We conclude the court properly admitted evidence of Torres’ prior sexual acts with minors and affirm the judgment.

All further statutory references are to the Evidence Code unless otherwise stated.

I

FACTS

At approximately 9:00 p.m. on March 30, 2006, three young women appeared at the Santa Ana Police Department to report that Torres had committed various sex crimes against them.

B.S. , who is Torres’ eldest daughter, was 21 years old when she told Santa Ana Police Officer William Thielman that Torres abused her 16 years ago when she was approximately five years old. She explained that when she was five years old she shared a bed with her younger sister, Y.T. Approximately two nights a week, Torres got into bed with the girls, fondled B.S.’s vaginal area, and forced her to touch and rub his penis. When she was six or seven years old, Torres started to lick B.S.’s vaginal area. She tried to stop him from touching her vagina by crossing her legs or pushing him away, but Torres continued to touch and lick her regardless of what she did. B.S. stated that Torres molested her for several years, but that he stopped one month before her 13th birthday. B.S. said she did not tell her mother what was happening at the time because she feared that it would break up her family.

We refer to the complaining witnesses by their initials solely to preserve their privacy and intend no disrespect.

G.T., who is Torres’ niece, was approximately 14 years old when she told authorities that Torres had molested her a few years ago. She explained that when she was in the seventh grade, she went to stay with Torres and his family because her mother had had a stroke and was very ill. G.T. said that Torres’ wife, Inez, went to stay with G.T.’s mother in her home while Torres stayed with the three girls, B.S., Y.T., and G.T, at his home. Approximately three times a week during the last three weeks of her month-long stay, Torres came to the bed G.T. was sharing with Y.T., picked her up, and took her to his own room. Torres then laid G.T. on his own bed, removed her clothing, touched her breasts and vaginal area, and penetrated her vagina with his fingers. He also kissed her on the cheek. G.T. turned her head when he attempted to kiss her lips. G.T. said that she usually pretended to be asleep when Torres molested her. After G.T. returned to her own home, Torres frequently wanted her to accompany him when he delivered towels for the family business. While he would drive the delivery truck, Torres would ask G.T. to stand near the center console. When she did as he requested, Torres would reach around her shoulders and fondle her breasts. G.T. did not immediately report the abuse to her mother because she was embarrassed and thought no one would believe her. She was also concerned for her mother’s health.

On the basis of the girls’ complaints, three Santa Ana Police Officers, including Thielman, and Torres’ wife, Inez, drove to the family business on South Harbor Street in Santa Ana. Inez unlocked the door to the business, and the officers searched the business looking for Torres. They found him lying naked and asleep inside a van that was parked inside the business. The officers ordered Torres to get out of the van. When he complied, the officers handed him some clothing and allowed him to dress. After he got dressed, the officers arrested Torres and placed him in handcuffs.

Torres was taken to the Santa Ana jail for questioning. Santa Ana Police Officer Michael Vargas advised Torres of his Miranda rights. Torres acknowledged his rights and indicated that he wished to talk to the officers by signing a waiver form after the officers removed his handcuffs. Thielman told Torres what the girls had said about him. He then asked Torres to tell him about his relationship to his daughter, B.S. Torres admitted he had touched B.S.’s vaginal area. He said he touched her skin and underwear as a way of arousing himself before masturbating. Thielman asked if his penis was erect at the time, and Torres replied that sometimes it was erect and other times it was not. He also admitted that he would sometimes lie down on the bed with her, take her hand in his, place her hand on his penis, and move her hand up and down his penis. Torres told Thielman he had done this with B.S. approximately six times.

Miranda v. Arizona (1966) 384 U.S. 436.

Thielman asked Torres if he had ever put his mouth on B.S.’s vagina. Although Torres initially denied this allegation, after Thielman repeated the question “several times,” Torres admitted, “Yes. I did.” Torres said that sometimes he would completely remove his daughter’s underwear prior to orally copulating her. At other times, he left her underwear on but moved it to one side. He thought he had orally copulated B.S. three or four times. When Thielman asked if B.S. resisted him, Torres said that she tried to use her legs and feet to push him away, but that she had not stopped him from doing what he wanted to do. Thielman asked Torres if he thought it was right for him to do these things to B.S. Torres responded by hanging his head and shaking it back and forth.

Thielman also asked Torres if he had ever done anything to C.G., a family friend and player on his soccer team. Torres denied touching C.G. in a sexual way, but admitted touching her clothing. He also admitted touching her bare legs while they were at soccer practice. When asked about R.A., his niece, Torres admitted putting his hands over R.A.’s buttocks, thighs, and waist, but said that he did not do this for sexual arousal. Although he claimed to feel no sexual arousal from touching C.G. and R.A., Torres admitted that he did not think what he did was right.

On September 12, 2005, the Orange County District Attorney’s Office filed an 11-count information charging Torres with violations of Penal Code section 288, subdivision (a) (lewd acts with a child under the age of 14; counts 1, 2, 8, 9, 10 & 11) and subdivision (b) (forcible lewd acts with a child under the age of 14; counts 3, 4, 5, 6, & 7). Counts 1 through 5 alleged that between March 23, 1990 and March 31, 1995, Torres committed lewd acts and forcible lewd acts against Jane Doe #1 (B.S.). Counts 6 and 7 alleged that between April 1, 1995 and March 22, 1998, Torres committed forcible lewd acts against B.S. Counts 8, 9, 10, and 11 alleged that Torres committed lewd acts against Jane Doe #2 (G.T.) between January 1, 2002 and December 31, 2004.

On September 5, 2006, the People filed a pretrial motion to introduce evidence of uncharged sex offenses involving Torres’ younger daughter, Y.T., his niece, R.A., and C.G., a family friend and former soccer player on his team.

According to the motion, Y.T. would testify that when she was 14 years old Torres got into bed with her, pulled her top and bra above her breasts, and sucked her left nipple. Torres told Y.T. not to worry because “it’s just a massage.” On another occasion, when Y.T. was four, she remembered kissing her father’s bare skin and body all the way down to his erect penis.

R.A. would testify that when she was 10 or 11 years old, in March 2005, Torres started to touch her in personal places. She would also state that on one occasion while she was in Torres’ delivery van, he asked her if she wanted to stop the van and look at the ocean. When R.A. told Torres that she wanted to stop, he found a parking spot close to the ocean and stopped the van. He directed her to stand and move closer to the van’s center console so that she could look out the window. When R.A. complied, Torres grabbed her around the waist and caressed her waist and side. His hands went under her right breast, and he ran his hand down her side to her right buttock and thigh. She also recalled a separate occasion when Torres rubbed her bare legs and asked her, “Does this feel good?”

C.G., would testify that when she was 12 or 14 years old she was best friends with Y.T. and B.S. and often spent the night and weekends at the Torres’ home. She told authorities that Torres woke her up early in the morning by rubbing her bare legs and touching her upper thighs, close to her vaginal area. She stated that on one family camping trip, they all gathered together and told ghost stories. C.G. became frightened and started to cry. Torres stood next to her and ran his hands up and down her whole body, and he carried her back to the campsite. She also remembered that after soccer practice one night, he massaged her bare thighs with both hands and reached up underneath her shorts to an area very close to her vagina. C.G. reported that this incident lasted several minutes and greatly upset her. On another occasion, Torres wrestled with C.G. while they were at his home. At one point, he held her down on the floor and bit the clothing covering her upper back and buttocks. When C.G.’s mother entered the room, Torres stopped what he was doing, and C.G.’s mother “had words with [him] about this conduct.”

Defense counsel objected to the People’s motion on the grounds that the admission of evidence of uncharged sexual acts violated section 352, Torres’s constitutional right to due process, and his privilege against self-incrimination. After hearing the arguments of counsel and considering the offer of proof contained in the People’s motion, the court ruled that the uncharged sexual acts occurred close in time to the charged acts and were sufficiently similar to be relevant at trial. Further, the trial court determined that the uncharged acts were not “more prejudicial than probative,” and that the probative value of the evidence outweighed any prejudicial effect. The court also rejected counsel’s constitutional arguments, ruling that section 1108 contained sufficient procedural safeguards to withstand a due process challenge. With respect to his challenge on grounds the evidence violated Torres privilege against self incrimination, the court stated, “the Fifth Amendment doesn’t apply . . . .”

Trial Testimony

The People called a number of witnesses from the Torres family, including his brother, sister-in-law, and wife, Inez. Inez testified that the couple was married in December 1985. They had three children together, B.S., Y.T. and a third daughter, M.T., and they purchased a towel cleaning and delivery company. In December 2004, Torres moved out of the family home to live with his girlfriend. In March 2005, B.S. attempted suicide. It was after B.S.’s suicide attempt that Inez heard about what Torres had done to his eldest daughter. When Inez talked to her two sisters, she then learned that Torres had also molested his niece, R.G., and their middle daughter, Y.T. Inez talked to her sisters, daughters, and niece several times before they decided to go to the police in March 2006. By the time of trial, Inez had filed for a divorce from Torres, but it was still pending. She also testified that she was trying to get sole control of the family business, but she did not know if her attorney had filed a separate lawsuit for the business.

B.S. was 21 years old at the time of trial. She testified that when she was five years old the family lived in a rented room. During this time period, Torres would lie behind her while she slept and touch her vagina. Sometimes he would touch her on the outside of her underwear and sometimes he would touch her skin. He did this at least once a week and sometimes more frequently. At some point, Torres started to put his fingers inside her vagina, and he sometimes grabbed her hand in his and made her touch his penis. He wanted her to rub his penis, which was sometimes erect and sometimes flaccid. When B.S. turned seven, Torres started to put his mouth on her vagina. She vividly recalled one night when she and her family stayed at the home of some friends. She remembered he came up to her while everyone else was asleep. He forced her to touch his penis, and he put his mouth on her vagina and licked it. B.S. testified that sometimes she just pretended to sleep when her father touched her this way, but other times she would move or roll away from him. One night, she wore denim shorts to bed because she thought it would be more difficult for him to touch her.

B.S. testified that she started menstruating in the seventh grade when she was about 12 years old. Her mother told everyone in the family when it happened. Although this seemed to stop Torres from molesting her for a while, he would still “do things” to her whenever she stayed home from school. The family then moved into a mobile home where she shared a room with Y.T. She did not tell her mother about what Torres had done because she was afraid it would cause her parents to divorce.

G.T., who was 15 years old at the time of trial, is Torres’ niece. When she was 12 years old and in the 7th grade, her mother, Angelica, had a stroke. Torres took care of G.T. and her two brothers while her mother convalesced. One night, Torres got into bed with her, put his hand inside her pajamas, and touched her breasts. G.T. did not say anything to him because she was “really scared.” Once Torres came into the room where G.T. was sleeping with her cousins, picked her up off the floor, and took her back into his own bedroom. Once in his own bedroom, Torres laid G.T. on his bed, touched her breasts, and put his finger inside her vagina. On another night, G.T. remembered going to sleep in her cousin’s bed, but waking up in Torres’ bedroom. He also touched her breasts and put his finger in her vagina on this occasion. About a month later, G.T. told her mother what had happened. G.T. testified that her mother wanted to tell Inez what had happened, but G.T. asked her not to because she was afraid. She stayed away from family gatherings and tried to avoid Torres. However, she once accompanied him when he delivered towels. During the drive, Torres reached over and touched her breast.

Y.T., who was 20 years old at the time of trial, testified that when she was 13 or 14 years old, Torres, came into her bedroom at night, lifted her shirt and bra, and sucked her breast. Y.T. was “shocked” by his behavior, but Torres told her not to worry because “it was just a massage.” Y.T. did not tell anyone about the incident because she was “[s]cared of breaking up the family.”

C.G. was 16 years old at the time of trial. She testified that B.S. and Y.T. had been her childhood best friends, and that she frequently spent the night in their home. When she was 12 or 13, Torres would frequently tickle her toes, and rub her bare legs, thighs and stomach. During a camping trip with Torres and her soccer team, C.G. remembered that one night she became frightened and started to cry. Torres told her everything would be alright, picked her up, and ran his hands up and down her legs. He did the same thing during one soccer practice, except that on this occasion he rubbed her upper thigh, close to her vagina. He did the same thing when she was at home in her kitchen. When her mother saw what Torres was doing, her parents asked her about him. C.G.’s mother told her that what Torres had done was wrong, although she testified that what Torres did had always made her feel uncomfortable.

R.A., Torres’ niece, was 14 years old at the time of trial. When she was 9 or 10 years old, Torres coached a girl’s soccer team, and R.A. and her cousins played on his team. She was very close to B.S. and Y.T. and frequently spent the night at their house. One night, Torres came into the room where she was sleeping and picked her up. When she asked him what he was doing, Torres told her that he was just tucking her in. Torres often wanted R.T. to accompany him when he made deliveries, and he told her mother it was because he could take advantage of the car pool lane. When they drove close to the beach, Torres would stop the van and ask R.T. to stand near him. When she moved closer to him, Torres would put his arm around her shoulder and touch the side of her breasts. He also rubbed her legs and told her it was a massage.

II

DISCUSSION

Evidence Code Section 1108

Torres challenges the court’s admission of uncharged sexual acts with minors on several grounds. He first contends the court’s ruling violates section 1108. We disagree.

Section 1108, subdivision (a) provides, in pertinent part, as follows: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” Section 1108 was enacted in 1995 to expand the admissibility of disposition or propensity evidence in sex offense cases. “Available legislative history indicates section 1108 was intended in sex offense cases to relax the evidentiary restraints section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant’s other sex offenses in evaluating the victim’s and the defendant’s credibility. In this regard, section 1108 implicitly abrogates prior decisions of this court indicating that ‘propensity’ evidence is per se unduly prejudicial to the defense. [Citation.]” (People v. Falsetta (1999) 21 Cal.4th 903, 911.)

As noted in People v. Fitch (1997) 55 Cal.App.4th 172, “The Legislature has determined the need for this evidence is ‘critical’ given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial. [Citation.]” (Id. at p. 182.) Thus, by design, section 1108 “allows evidence of the defendant’s uncharged sex crimes to be introduced in a sex offense prosecution to demonstrate the defendant’s disposition to commit such crimes.” (People v. Reliford (2003) 29 Cal.4th 1007, 1009.)

The trial court’s role when ruling on a section 1108 motion is distinct from that of the appellate court. “Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (People v. Falsetta, supra, 21 Cal.4th at p. 917.)

However, an appellate court reviews the trial court’s decision under the abuse of discretion test. (See People v. Pierce (2002) 104 Cal.App.4th 893, 900-901.) “A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse. [Citation.] Abuse may be found if the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner, but reversal of the ensuing judgment is appropriate only if the error has resulted in a manifest miscarriage of justice. [Citations.]” (People v. Coddington (2000) 23 Cal.4th 529, 587-588, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)

Section 1108, subdivision (a) states uncharged sexual acts evidence must meet the requirements of section 352 to be admissible. Section 352 provides, “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352.) However, “‘The prejudice which [section 352] is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.’ [Citations.] ‘Rather, the statute uses the word in its etymological sense of “prejudging” a person or cause on the basis of extraneous factors. [Citation.]’ [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 958.) For purposes of analysis, “‘prejudicial’ is not synonymous with ‘damaging,’ but refers instead to evidence that ‘“uniquely tends to evoke an emotional bias against defendant”’ without regard to its relevance on material issues. [Citations.]” (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)

Torres contends the animosity his wife and sister-in-law have toward him, and the fact that they conferred with each other and talked to their daughters, undermines the trial court’s determination that the uncharged sexual acts evidence was reliable. He contends the negative undercurrents within the family structure caused the girls to misunderstand what he had done, “making innocent and even kind conduct by [Torres] sound lewd.” He also laments the fact that none of these acts led to prior criminal convictions, which, he argues, renders evidence of the acts speculative and unduly inflammatory. Moreover, he expresses concern that the “sad and pathetic” testimony from R.T. and C.G. added only unfair “pathos and innuendo” rather than substantial evidence to the prosecution’s case.

However, each of Torres’ assertions deals with the weight of the evidence, not its admissibility. As such, his points are more appropriately argued at trial. In fact, the jury was aware of the bad blood between various members of the Torres family. The reporting witnesses, Torres’ wife, Inez, and the other family members who testified were subjected to defense counsel’s lengthy cross-examination. Consequently, their possible motives to lie were no secret to the jury. And, “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; People v. Cain (1995) 10 Cal.4th 1, 33.)

Here, the trial court carefully weighed issues of remoteness, similarity, and undue prejudice. The instances all involved young girls, either relatives or family friends, who had close relationships with Torres or his daughters. Their stories were sufficiently similar to support a reasonable inference Torres had the propensity to commit particular types of sex acts with young girls. Thus, we find no abuse of the court’s broad discretion to admit or exclude relevant evidence, and Torres fails to persuade us that the trial court violated sections 1108 or 352 by admitting evidence of other uncharged acts at his trial.

Constitutional Right to Due Process and the Privilege Against Self-Incrimination

The California Supreme Court has already determined that admission of propensity evidence does not violate the defendant’s right to due process. (People v. Falsetta, supra, 21 Cal.4th at pp. 911-922.) We are bound to decide cases according to the decisional law set forth by our state Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Consequently, we reject Torres’ due process claim.

In addition, we find Torres’ Fifth Amendment claim equally unavailing. He suggests that evidence of uncharged acts “called for countering testimony by Torres, who could then in theory prospectively forfeit his Fifth Amendment rights against self-incrimination by offering a defense . . . .” However, nothing in the record supports his hypothetical fear because there was no actual threat of subsequent prosecution. Moreover, there is nothing unique about the dilemma Torres describes. This same dilemma is faced by all those charged with crime. As noted by the California Supreme Court, “Some rights are mutually exclusive. For example, a criminal defendant has a right to remain silent and a right to testify on his own behalf. He cannot do both, and hard choices are not unconstitutional.” (People v. Frye (1998) 18 Cal.4th 894, 940.) Consequently, we reject Torres’ claim that evidence admitted pursuant to section 1108 violates his privilege against self-incrimination as provided for in the Fifth Amendment to the United States Constitution.

III

DISPOSITION

The judgment is affirmed.

WE CONCUR: BEDSWORTH, J., ARONSON, J.


Summaries of

People v. Torres

California Court of Appeals, Fourth District, Third Division
Jul 31, 2008
No. G038227 (Cal. Ct. App. Jul. 31, 2008)
Case details for

People v. Torres

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SERUG TORRES TORRES, Defendant…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Jul 31, 2008

Citations

No. G038227 (Cal. Ct. App. Jul. 31, 2008)