Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Ventura, Allen Steele, Judge, Ct. No. 2005001138, Ventura County
Linda C. Rush, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Dagoberto Vasquez-Ferreira was convicted by jury of two counts of continuous sexual abuse of a victim under the age of 14 (Pen. Code, § 288.5, subd. (a)), with special findings that he had substantial sexual contact with the victims (§ 1203.066, subd. (a)(8)) and committed the offense on more than one victim (§ 1203.066, subd. (a)(7)). The trial court sentenced appellant to 20 years state prison and ordered him to pay fines and restitution.
All statutory references are to the Penal Code unless otherwise stated.
Appellant appeals from the judgment, citing evidentiary and sentencing errors. We modify the sentence to reduce a sex offender fine from $600 to $500 (§ 290.3, subd. (a)) and to reflect a mandatory $500 penalty assessment (§ 1464, subd. (a)) plus a $350 penalty assessment (Gov. Code, § 76000, subd. (a)). The judgment, as modified, is affirmed.
Facts
In 1996, appellant instructed his six-year old stepson, R.T., to put his hands against a wall. Appellant pulled down R.'s pants and put his penis in R.'s anus.
Over the next nine years, the sexual abuse included sodomy, oral copulation, and masturbation. Appellant molested R. at home on weekends, while R.'s mother (Mother) was at work. Appellant offered money and gifts and told him not to tell anyone.
In 2005, Vice Principal Charles Cornwell met with Mother to discuss R.'s academic and social problems. Mother said that she and appellant were separated but thinking of getting back together. She thought R. might be stressed because appellant was living elsewhere and used to spend extra time with him. Mother said that appellant and R. slept in the same bed on a couple of occasions, but "I don't think that's that bad."
Cornwell was concerned and asked R. about it. R. was reluctant to talk but said that appellant had molested him.
Ventura Police Officer Derek Donswyk interviewed R. later that day. R. stated that appellant had repeatedly molested him and indicated that his younger sister, A.T., had also been molested A. and R. had a secret code (i.e., laughing or making a loud noise) to attract the attention of the other sibling when appellant was in the room.
A. was interviewed at school and told the police that she was molested between the ages of six and eight. The sexual abuse included vaginal intercourse and masturbation.
On January 13, 2005, Natalie Erickson, a sexual assault nurse examiner, interviewed A. and conducted a physical exam. A. said that appellant touched her chest and genitals and put his penis in her vagina before she started menstruating at age eight. Nurse Erickson found no scarring of the genitals but noted that any physical trauma to the hymen would have probably healed before the molestation was reported to the police.
Doctor Veronica Thomas, a forensic psychologist, testified that certain behaviors are common among children sexually abused by an adult family member. The behavior pattern, known as Child Sexual Abuse Accommodation Syndrome (CSAAS), includes secrecy, a sense of helplessness; entrapment and accommodation by the victim, delayed disclosure, and victim retractions after a disclosure is made. Some child victims claim the abuse never occurred while others may minimize its extent or frequency. Doctor Thomas stated that the majority of victims suffering from CSAAS believe the sexual molestation was their fault and do not tell their mothers.
At trial, appellant denied molesting the children. He claimed that the children's mother fabricated the story and put them up to it. Three days before he was arrested, Mother argued about money, told appellant to leave, and threatened to have the oldest daughter, M., file a false sexual abuse report.
Prior False Report of Sexual Abuse
Appellant argues that the trial court erred in excluding evidence that M., the victims' older sister, made a false allegation of sexual molestation 10 years earlier. On two occasions, M. reported that she was sexually abused by men having problems with her mother. Appellant claimed that Mother instigated the false report and offered the evidence to show that Mother may have induced R. and A. to falsely accuse him of sexual abuse.
The trial court found that the prior incident was remote in time and not a "scintilla of evidence that Mom was involved" in the present accusations. "There is nothing, in my view, nothing, that mitigates towards introducing this [defense] evidence. And by this evidence, I mean the M. business. Nothing. I think this is classic 352. I think this creates confusion . . . . [P]otentially time consuming, certainly confusing to the jury, and distracting, and there is no probative value . . . in light of this record. None."
We review for abuse of discretion. (People v. Rodriguez (1994) 8 Cal.4th 1060, 1124 [trial court has broad discretion to weigh probative value versus prejudicial effect of evidence].) The trial court reasonably concluded that the false report, made 10 years earlier, lacked relevance and would confuse the jury. (Evid. Code, § 352.) In the prior incident, M. was the reporting party and admitted that the accusations were false. In the instant case, R. and A. were reluctant to talk about the molestation and did so only after school authorities started the investigation. Unlike M.'s false report made 10 years earlier, R. or A. did not recant or say that their mother prompted them to make the accusations.
The trial court did not err in concluding that the evidence lacked probative value, would confuse the jury, and would involve an undue consumption of time. (Evid. Code, § 352.) Appellant asserts that the evidence is relevant to show that the mother had a motive to lie and had done so in the past. But Mother did not report the molestation, ask the school or police to question R. and A., or testify at trial.
Assuming, arguendo, that the trial court erred in excluding the evidence, the alleged error was harmless. (People v. Cudjo (1993) 6 Cal.4th 585, 611; People v. Watson (1956) 46 Cal.2d 818, 836.) R.'s and A.'s testimony was corroborated by the school authorities, the police, and the sexual assault nurse examiner. There was no evidence that Mother asked R. or A. to report the sexual molestation.
Appellant's assertion that he was denied due process is without merit. (People v. Bradford (1997) 15 Cal.4th 1229, 1325.) The exclusion of evidence based on state law does not implicate a defendant's federal constitutional rights to present a defense. (People v. Abilez (2007) 41 Cal.4th 472, 503; People v. Cornwell (2005) 37 Cal.4th 50, 82.) Appellant did not have the unfettered right to introduce testimony that was untrustworthily, time consuming, or inadmissible under established rules of evidence. (Montana v. Egelhoff (1996) 518 U.S. 37, 42 [135 L.Ed.2d 361, 367].)
911 Dispatcher Testimony
Appellant next contends that the trial court erred in excluding lay opinion testimony about the domestic disturbance call. On January 9, 2005, appellant called 911 to complain that Mother had locked him out. During the call, the dispatcher heard a female in the background say that if the police came, she would tell them that appellant hit her.
Appellant argued that the information was entered in the 911 call log because the dispatcher felt the female intended to lie to the police. At an Evidence Code section 402 hearing, the dispatcher opined that the female was angry and planned "to say something different than what happened" if the police arrived. The dispatcher could not recall whether the female was speaking English or Spanish, but guessed it was English.
The dispatcher communicated with appellant through a Spanish translator. Mother did not speak English.
The trial court found that the dispatcher could testify as to what she heard and what was entered in the call log, but could not testify about the credibility of the unidentified female. It did not err. It is settled that lay opinion about the veracity of statements by another is not admissible. (People v. Melton (1988) 44 Cal.3d 713, 744.) There was no evidence that the dispatcher was an expert on the credibility or veracity of persons providing information during a 911 call. (Ibid.)
The alleged error, if any, in excluding the lay opinion testimony was harmless. (Id., at p. 745.) The officer who responded to the 911 call testified that no one at the house claimed that anyone had been hit or sexually assaulted. The issue of whether Mother intended to lie to the police about the domestic disturbance was irrelevant to the sexual abuse allegations which dated back nine years. Appellant's assertion that exclusion of the lay opinion testimony violated his constitutional right to a fair trial is without merit. "[T]he trial court's ruling did not constitute a refusal to allow [appellant] to present a defense, but merely rejected certain evidence concerning the defense." (People v. Bradford, supra, 15 Cal.4th at p. 1325; see People v. Epinoza (2002) 95 Cal.App.4th 1287, 1317.)
Sex Offender Fine
At the sentencing hearing, the trial court ordered appellant to pay a section 290.3 sex offender fine "in the amount of $600, including penalty assessments." Appellant argues, and the Attorney General agrees, that the fine should be reduced. When appellant was sentenced, section 290.3, subdivision (a) provided for a $200 fine on the first conviction and a $300 on the second and each subsequent conviction. (People v. O'Neal (2004) 122 Cal.App.4th 817, 822; see e.g, People v. Talibdeen (2002) 27 Cal.4th 1151, 1157 [penalty assessment corrected on appeal].) We accordingly reduce the sex offender fine to $500 (§ 290.3, subd. (a)) and modify the judgment to reflect a $500 penalty assessment (§ 1464, subd. (a)) plus a $350 penalty assessment (Gov. Code, § 76000, subd. (a)). (See e.g., People v. Stewart (2004) 117 Cal.App.4th 907, 910 [penalty assessments may be raised for first time on appeal].)
Appellant claims that the trial court made an implied finding that appellant lacked the ability to pay anything more than $600 when it set the fine at "$600, including penalty assessments." The trial court was referring to the probation report which recommended "a fine of $600, including penalty assessment" and stated: "Per 290.3 PC, the defendant shall pay a fine of $300 for each conviction unless the Court finds the defendant does not have the ability to pay."
The trial court found that appellant had the ability to pay and ordered him to pay fines and costs. It was an oversight not to impose mandatory penalty assessments. Appellant made no showing that he lacked the financial ability to pay. (See e.g., People v. McMahan (1992) 3 Cal.App.4th 740, 749-750.) We accordingly modify the judgment to reflect a $500 sex offender fine (§ 290.3, subd. (a)) plus a $500 penalty assessment (§ 1464, subd. (a)) and a $350 penalty assessment (Gov. Code, § 76000, subd. (a)).
Appellant was ordered to pay $1,613 for the presentence investigation, a $400 restitution fine (§ 1202.4, subd. (b)), a $400 parole revocation fine (§ 1202.45), victim restitution to A. and R. (§ 1202.4, subd. (f)), and $550 restitution to the Magnolica Medicine Specialty Clinic for the medical-legal exam (§ 1203.1, subd. (h)).)
Upper Term Sentence
Appellant finally contends that the trial court erred in imposing a 16 year upper term sentence on count 1 for the continuous sexual abuse of R. (§ 288.5, subd. (a).) The trial court sentenced appellant to the upper term based on two aggravating factors: the victims were particularly vulnerable and because appellant took advantage of a position of trust and confidence.
Citing Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856] and People v. Black (2007) 41 Cal.4th 799 (Black II), appellant argues that the trial court erred in imposing an upper term based on facts that were neither found by the jury or admitted by appellant. Although victim vulnerability and abuse of a position of trust and confidence are not elements of the charged offense, the evidence was overwhelming. (See e.g., People v. Burbine (2003) 106 Cal.App.4th 1250, 1262-1263.) The jury found that appellant committed continuous sexual abuse on more than one victim under the age of 14 (§ 1203.066, subd. (a)(7), and that appellant had substantial sexual conduct with R. (§ 1203.066, subd. (a)(8)).
In People v. Sandoval (2007) 41 Cal.4th 825, 839 our Supreme Court held that "if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond a reasonable doubt standard, unquestionably would have found that at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless."
In our view, there is no reasonable doubt that a jury would have found R. a particularly vulnerable victim and that appellant abused a position of trust and authority. The school vice-principal testified that R. was "very sheltered, very depressed looking, very shy, withdrawn; basically, keeps to himself and really doesn't have a conversation with anybody." The evidence further showed that appellant acted as R.'s father, offered him money and gifts, sexually molested him for nine years, and told him not to tell anyone because "it's a father-son kind of thing."
The judgment is modified to reduce the sex offender fine from $600 to $500 (§ 290.3, subd. (a)) and to reflect a $500 penalty assessment (§ 1464, subd. (a)) plus a $350 penalty assessment (Gov. Code, § 76000, subd. (a)). The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections. As modified, the judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.