Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. FF719224
ELIA, J.A jury found appellant guilty of 20 counts of sex offenses against his nine-year-old twin stepdaughters. The trial court sentenced him to a state prison term of 300 years to life. On appeal, he contends that his confession was involuntary, that there was insufficient evidence as to certain counts, that a hearsay statement should not have been admitted, and that there was sentencing error. He also requests that this court conduct an in camera review of certain documents pertaining to the victims. We affirm.
Background
In November 2006, Crystal Doe was in middle school in a girls' group that was given a questionnaire and told to answer all the questions honestly. One of the questions was whether one had ever been sexually abused. Crystal answered "yes." An investigation followed, leading to the arrest of appellant, Crystal's stepfather.
Crystal and her twin sister Cynthia were born in 1994. Their mother, Y., married appellant and the family moved to Gilroy. In 2002, when the girls were in second grade, appellant began molesting them. When appellant moved out, in 2004, the molestations stopped. At the time of trial, in 2007, the girls were in seventh grade.
Although Crystal was unclear about when this happened, she testified that the first molest by appellant that she remembered was when she was watching television in her mother's bedroom. She said, "He threw me on the bed and he took off my pants and put his finger in my butt." While she was on the bed, appellant stood over her, grabbed her legs, pulled her closer to him, unzipped his pants, and took out his penis. Crystal testified, "He put it in my butt." Crystal did not tell him to stop because she was "too scared." She said, "I thought he was going to do something to me like hit me or something." When appellant stopped and went to the bathroom, Crystal could feel a wet "white puff" between her legs. Crystal said that appellant did this to her more than four times.
On another occasion, Crystal was in her own room watching television when appellant came to the door. She said, "he pulled down his pants and he showed me his penis." He told her to "come here" but she ignored him and kept watching television. In the summer of 2004, appellant gave Crystal a piggyback ride to the couch in the living room. He pulled off her clothes and put his penis in her "butt." This hurt, she asked him to stop, and he did. She did not cry, but she was afraid that appellant would hit her.
One time, Crystal was sitting on her mother's bed folding laundry when appellant came in, pushed her down, took off her pants, and asked her to touch his penis. He put his penis in her vagina and "move[d] it around" inside of her. On cross examination, after reviewing a portion of the transcript of her testimony at the preliminary examination, Crystal testified that appellant did not put his penis in her vagina. She said, "I think he tried to." On another occasion, appellant grabbed Crystal's hand, placed it on his penis, and "moved it up and down." Whenever appellant would touch Crystal sexually he would kiss her on the mouth and put his tongue in her mouth.
One night, when Crystal was sleeping in the same room as her sister Cynthia, Crystal saw appellant come into the room, pull down Cynthia's pants, lie down on top of her, and touch her sexually. Y. came into the room and said to appellant, "what are you doing in here?" Appellant jumped up and put his clothes back on and Y. said, "you have to get out of here." However, appellant did not leave.
Crystal talked to Cynthia about what appellant had been doing to her, and Cynthia told Crystal that appellant "was touching her in places she didn't want to be touched and that she was scared and she just didn't like it." She said that he was having sex with her.
Cynthia testified that after moving to the house in Gilroy appellant began molesting her. About five to 10 times he took her hand and put it on his penis. He moved her hand up and down. She was "quiet and scared" when he did this. Cynthia said that "a lot of times" appellant picked her up, put her on her mother's bed, took off her pants, and inserted his penis in her buttocks. He also inserted his fingers. He orally copulated her more than 10 times, and put his penis in her mouth around five times. He put his penis in her vagina more than five times.
Appellant asked Cynthia to be his girlfriend, asked her to play with him, told her not to tell anyone about their sexual activity, and offered her money to orally copulate him. Sometimes he would apologize and say that it would not happen again. Cynthia said that appellant was a "a good dad" but that she was afraid if she said "no" to him he "would probably hurt me or hurt someone." She was afraid to make him mad for fear he would hit her. During this time appellant was yelling at her mother and Cynthia was afraid that appellant would hurt her mother.
Around this time period, Crystal and Cynthia were also being sexually abused by their godfather, Uncle P., in San Jose. Uncle P. had vaginal and anal intercourse with Cynthia and engaged in oral copulation with her. Uncle P. also inserted his penis in Crystal's vagina and buttocks. Sometime during the period of sexual abuse by appellant, the girls saw appellant hurt Y. Cynthia testified, "they had a big old fight and he pulled my mom's hair and was hitting her."
Crystal and Cynthia were examined in December 2006. The exams showed no signs of sexual assault, although those findings were not unusual given that the exams were two years after the abuse.
After the abuse was reported in the school questionnaire, Officer Cherie Somavia interviewed Crystal and Cynthia. Thereafter, appellant came twice to the Gilroy police station to be interviewed. A transcript of these interviews was introduced into evidence at trial. During the second interview, appellant admitted that he had penetrated Crystal with his finger. He said he put his tongue in her vagina once. He told the officer, "I never put my penis in her vagina.... I think that I did try from behind." He said Crystal would tell him that it hurt and he would stop. He said he did not try to penetrate her vagina because, "I think that I could hurt her from the interior of her vagina, that I could have caused her to bleed or her mom would find out." He admitted exposing his penis to her. He could not remember having Crystal suck on his penis. He said he did have Crystal masturbate his penis and said, "When I felt I was going to finish, I would go to the restroom."
Appellant said that he was closer to Cynthia than Crystal. He would help her do her homework and they would watch television together. He admitted offering her money to "do things to her." He rubbed her vagina with the tip of his fingers and put "a little bit" of his finger in her vagina. He said that he "sucked her vagina" on four occasions. Once he put his penis in her mouth. He thought that he had tried to put his penis in her anus three times. He stopped because "She screamed a little [and] said it hurt her." About 15 times he "would touch her butt and her legs" when he would pass by. At the end of the interview, appellant wrote letters of apology to the girls.
At trial, appellant testified and denied molesting either girl. He said that he falsely confessed because the interviewing officer reminded him of the Mexican police. He said, "I was afraid because I had heard a lot of things about the Mexican police because of these delicate cases that happen. Over there you get hit or you get tortured or you get killed." He acknowledged that he had been arrested in the United States for domestic violence against Y. in 1999 and 2003, and public intoxication, but said that he had never heard of the Mexican police beating someone for those offenses. After he had been in custody for about three weeks, he came to realize that he was not going to be beaten.
In closing, the prosecutor argued that appellant's confession was not motivated by fear, that it was credible, and that "the reason he started describing these acts was because he knew he was good for them." Defense counsel argued that Crystal and Cynthia were angry at appellant for hurting their mother. They had been "highly sexualized" by the abuse by Uncle P. and knew that Uncle P. had been put in jail. This knowledge served as a "blueprint" to falsely accuse appellant in order to "get [appellant] out of the house." On rebuttal, the prosecutor pointed out that appellant had already moved out of the house quite some time before the girls reported the sexual abuse.
The jury found appellant guilty of all the charges. This included, as to Crystal, one count of aggravated sexual assault by rape, one count of aggravated sexual assault by sodomy, and five counts of aggravated lewd conduct on a child. As for Cynthia, appellant was convicted of five counts of aggravated lewd conduct on a child, and eight counts of aggravated sexual assault on a child.
The Confession
Appellant contends that his confession was involuntary and should not have been admitted.
Background
At trial, Detective Corporal Rosa Quinones, Police Officer Nestor Quinones, and Detective Mitch Madruga, all of the Gilroy Police Department, testified about appellant's confession. Detective Madruga spoke to appellant on the telephone and arranged a date and time for him to come to the station to speak about the case. Appellant drove himself to the Gilroy police station and was interviewed in an unlocked room. He was not in custody and was not handcuffed. Appellant was told that he was free to leave at any time. Rosa Quinones was in civilian clothes and Madruga was dressed casually and their weapons were not visible. Because appellant had told Madruga that he would prefer talking to a Spanish speaking officer, Detective Madruga asked Rosa Quinones to assist him as a translator. This procedure turned out to be "Very awkward." At the end of the interview, appellant agreed to return to the station at a later time.
During the first interview, conducted on November 28, 2006, appellant explained that in addition to his stepdaughters Crystal and Cynthia, he and Y. had three other daughters, one having Down's syndrome. Their maternal grandmother had custody of all the children because Y. had been arrested on drug charges. Appellant saw his daughters during supervised visits. During the first interview, appellant denied having any sexual contact with Crystal and Cynthia. He told Rosa Quinones that he had the police reports in the case. Rosa Quinones told appellant that the police had medical proof that the girls had had sex. At one point, Rosa Quinones told appellant that, because he was a father, the department was not interested in sending him to jail. Rosa Quinones also told appellant that his children might wind up in a foster home and he might not see them again. She also alluded to the circumstance of child molesters in jail. Appellant left this interview without making any incriminating statements.
She said, "You know that we performed an exam, a medical exam and that [proves] that yes in fact that was true. That they had sex." Appellant responded, "Well in the report that I have it doesn't say it exactly like that because from what I remember I'm not sure which girl was the one that said it happen[ed in] 2005 and I was not living with them at the time."
Rosa Quinones said, "Now, they say, the department is interested in... not so much that you go to jail because you have 3 daughters from whom you are responsible right? If you go to jail who will be providing? The state is interested in rehabilitating people, if this happened the state will provide counseling so that if it did happen, you will receive counseling so that it does not happen again, okay, but that is if you admit, but if you continue to say no, it did not happen, then you are not admitting your fault, so they can't work with someone that will not admit his fault. For them is more important to provide rehab because they just don't want them in jail doing nothing." She continued, "This is what [I'm] trying to tell you, we're interested in rehabilitating people not putting them in jail. We want families to continue to be productive. I'm not sure if you want to get back with your wife or if you want to become the responsible father for your daughters but there is a report accusing you of sexual abuse. You say no, it did not happen; you are going to end up in jail! It would be different if you admit and say yes, I did it, I don't know what I was thinking, then, you know the court will say okay, we can still help this person, we can rehabilitate him. Do you understand the difference?" Appellant said, "I'm not going to admit to something I did not do."
She said, "You did it and you are be[ing] a liar, okay? There will be no rehabilitation for you. Your kids are going to end up in a foster home because they won't be going with you or your wife." Appellant responded, "They're going to be with their grandma," and Quinones said, "Maybe the state will take them." She said, "You haven't said anything, you don't have an explanation." Appellant asked, "So what is going to happen then?" Quinones said, "You'll probably go to jail.... you'll never see the girls again."
She said, "Okay, continue... denying... it will not help you in any way. Do you know what happens to people that go to jail for this type of case?" Appellant said, "For child abuse? I think they go to jail for a long time." Quinones asked, "Do you know what happens to you with the rest of the prisoners?" Appellant answered, "I've heard many stories, but I've been to jail before."
Appellant returned to the station January 25, 2007. Again, he drove himself there, he was not handcuffed or mistreated, and the door to the interview room was closed but unlocked. This time he was interviewed by Officer Nestor Quinones. Quinones told appellant that he was free to leave. At some point during the interview appellant left to use the restroom and then returned to the interview room.
Quinones told appellant that it would be held against him if he did not admit the abuse. At some point, Nestor Quinones had Rosa Quinones return to the room to tell appellant that he would not be arrested that day. Appellant asked if his arrest and the case would be publicized. Quinones told him he did not think that it would be because it was "not serious." Appellant told Quinones that he had a thick copy of the reports in the case and said, "In that report there's everything, there is a lot of things that aren't true and I know that they are going to involve me, the report from the Doctor, one that may involve me, and none of that is true, in other words, I'm going to tell you, there was no penetration." They went on to discuss the details of appellant's sexual conduct with the girls and appellant wept.
She told appellant, "I already promised you that I'm not going to arrest you, right, okay, I'm not going to arrest you. I'm not going to arrest you right now....Within one week. Is that what you need?" Appellant asked, "But later am I going to have an arrest warrant?" Quinones answered, "I don't know what's going to happen later, okay?... I can only promise you that. We're not going to arrest you right now." After Rosa Quinones left, Nestor Quinones said, "I did what you asked me to. She came and told you. And she was kind of mad. Because she said I already told him! But she doesn't understand, because she's not the one sitting there. You see? But she, she's saying, if I knew that they were going to arrest you tomorrow or something like that I would tell you. You know what? They might arrest you tomorrow. I would tell you that. But I'm telling you I promise that you won't be arrested tomorrow or a week from now."
Nestor Quinones told appellant that the paper would likely say "a trauma of this type happened to a girl and a suspect is in custody." He said that some "very nosy" person could go to court and review public records but that "no one does that." He said, "You never took any girl, put her in the trunk of your car, brought her over to Gilroy, kidnapped her, but in this case, that did not happen. What happened here was a mistake. If something else had happened I would say it was a crime and that would be very serious, this is not serious. It is somehow serious but it is different. You did not take anyone, you did not rape anybody, you did not force anyone, did not drug anyone, none of that."
Appellant's statement to the police was not the subject of any pre-trial motions. After the officers had testified at trial, but before appellant had testified, defense counsel told the court that he wished to challenge the admissibility of the statement on the grounds that it was involuntary. Defense counsel and the prosecutor briefly stated their positions on the subject to the court. The court said it would consider "the totality of the circumstances." One factor was that appellant was not in custody and was free to leave. The court considered the "lies that were made to the defendant" about the medical exam and noted, "I'm not sure how much significance there really is to that to the extent it's a lie." The court said, "I don't find any evidence of inducements. The whole discussion about confidentiality I take as a discussion about whether it's going to get in the papers or not get in the papers." The court said that "there is no suggestion that if he confesses no charges are going to be filed." The court said that "under the totality of the circumstances I'm satisfied... that the statement was voluntary."
Discussion
A transcript of appellant's confession to Quinones was admitted into evidence and read to the jury. Appellant contends that his confession was involuntary and should not have been admitted. Appellant argues that he "was subjected to a number of coercive tactics that the courts have condemned: A promise of leniency if he confessed and dire consequences if he did not. The latter included prison, violence from other inmates, and never seeing his daughters again." Citing Quinones's statement that " 'If you don't tell the truth then you will have to go to court and then it will be to[o] late,' " appellant contends his right to remain silent was violated because the "clear implication" from Quinones's statements is that appellant's "refusal to confess would be held against him once criminal proceeding[s] were initiated."
Appellant states, "A recording of the interview was played at trial." However, we find no indication of this in the record. When the trial court asked the prosecutor if a tape of the interview would be marked as an exhibit, the prosecutor answered, "No, I was not anticipating that." Thereafter, a translated transcript of the interviews was admitted into evidence.
"On appeal, the determination of a trial court as to the ultimate issue of the voluntariness of a confession is reviewed independently in light of the record in its entirety, including 'all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation' [citation]. [Citations.] [¶] The trial court's determinations concerning whether coercive police activity was present, whether certain conduct constituted a promise and, if so, whether it operated as an inducement, are apparently subject to independent review as well. The underlying questions are mixed; such questions are generally scrutinized de novo; that is especially true when—as here—constitutional rights are implicated [citation]. [¶] Lastly, the trial court's findings as to the circumstances surrounding the confession—including 'the characteristics of the accused and the details of the interrogation' [citation]--are clearly subject to review for substantial evidence. The underlying questions are factual; such questions are examined under the deferential substantial-evidence standard [citation]." (People v. Benson (1990) 52 Cal.3d 754, 779.)
"An involuntary confession, of course, is inadmissible under the due process clauses of both the Fourteenth Amendment [citation] and article I, sections 7 and 15" of the California Constitution. (People v. Benson, supra, 52 Cal.3dat p. 778.) "It long has been held that the due process clause of the Fourteenth Amendment to the United States Constitution makes inadmissible any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion. [Citations.] A statement is involuntary [citation] when, among other circumstances, it 'was " 'extracted by any sort of threats,... [or] obtained by any direct or implied promises, however slight' " ' [Citations.] Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the 'totality of [the] circumstances.' " (People v. Neal (2003) 31 Cal.4th 63, 79.) However, there must be a strong causal connection between the improper police behavior and the confession. "A confession is 'obtained' by a promise within the proscription of both the federal and state due process guaranties if and only if inducement and statement are linked, as it were, by 'proximate' causation.... The requisite causal connection between promise and confession must be more than 'but for': causation-in-fact is insufficient. [Citation.] 'If the test was whether a statement would have been made but for the law enforcement conduct, virtually no statement would be deemed voluntary because few people give incriminating statements in the absence of some kind of official action.' " (People v. Benson, supra, 52 Cal.3d. at pp. 778-779.)
In Neal, which appellant cites for the proposition that a statement is involuntary when "it 'was " 'extracted by any sort of threats... [or] obtained by any direct or implied promises, however slight' " ' " (People v. Neal, supra, 31 Cal.4th at p. 79), the circumstances leading to the defendant's involuntary confession included "the officer's deliberate violation of Miranda; defendant's youth, inexperience, minimal education, and low intelligence; the deprivation and isolation imposed on defendant during his confinement; and a promise and a threat made by the officer." (Id. at p. 68.) The officer "continued interrogation in deliberate violation of Miranda in spite of defendant's invocation of both his right to remain silent and right to counsel" (id. at pp. 80-81) approximately seven to 10 times, promised to "make it as best as I can for you" if the defendant confessed, and threatened that "the system is going to stick it to you as hard as they can" if he did not. (Id. at p. 81.) The defendant in that case made his confession only "after a night in custody without access to counsel or other noncustodial personnel and without food or drink or toilet facilities." (Id. at p. 82.)
Here, appellant was not in custody and came to the interviews both times of his own accord. He was not young and he was experienced in the criminal justice system. Whatever improper remarks the officers made to him during the first interview concerning his daughters or the medical exam or the treatment of perpetrators of child sexual abuse in custody, cannot reasonably be considered to have caused an involuntary confession during the second questioning. Appellant had ample time to shake off the effect of any coercive tactics during the almost two months that passed from the first interview to the second. During the second interview, rather than being deprived of food, drink, or toilet facilities, appellant actually got up and left the interview room to use the rest room and then returned to the room despite the exit being readily available to him. Furthermore, appellant's nonchalant comebacks to the officers' statements indicate that he was not influenced by them in the way he now describes. For example, Rosa Quinones said, "Okay, continue... denying... it will not help you in any way. Do you know what happens to people that go to jail for this type of case?... Do you know what happens to you with the rest of the prisoners?" Appellant answered, "I've heard many stories, but I've been to jail before."
Appellant contends that Nestor Quinones's statements to appellant contained the "clear implication" that appellant's "refusal to confess would be held against him once criminal proceeding[s] were initiated." Quinones established that appellant had been to court and jail before. Then he said, "Okay, so then you know about these things. First of all, if you don't give your side of the story, they are going to believe the other side of the story which in this case will be Cynthia and Crystal's story. And, let me tell you, if I were you, I would not want to be in court without saying something because we all make mistakes in this life and here in California they recognize when you make a mistake and you admit to it. The worst that you can do is if I tell you what the girls say happened and you tell me, no, that it did not happen, then you will be the one going to court. The only opportunity you will get to talk to someone will be right now with someone that can help you, you will not get that chance when you go to court. The DA, the Judge will be there with their coats and ties, and they're not going to talk [to] you then. Right now is the only chance you will get to tell me how things happen, when they happen and why." Appellant argues that these statements "threatened Camacho with a negative outcome if he did not confess." Appellant cites to U.S. v. Tingle (9th Cir. 1981) 658 F.2d 1332, and United States v. Harrison(9th Cir. 1994) 34 F.3d 886.
During the interrogation in Tingle, which took place in the back seat of a squad car, agents recited a laundry list of maximum penalties for crimes of which defendant was suspected while she was sobbing and noticeably shaking. To induce the defendant's confession in Tingle, agents specifically told defendant that she would not see her two-year-old child for a long time while in prison and that she had "a lot at stake." (Tingle, supra, 658 F.2d at p. 1336 .) The agent promised the defendant that her cooperation would be communicated to the prosecutor, but if the defendant refused to cooperate the agent threatened to tell the prosecutor that she was "stubborn or hard-headed." (Ibid.)
In Harrison, the defendant, who was suspected of money laundering, opened the door of her home to find some 15 federal agents with guns drawn. The agents searched Harrison's house and arrested her and her companion. Harrison was advised of her Miranda rights. Then, after a brief silence, an agent informed Harrison of the evidence linking her to the crime and told her that she could face a 20-year sentence. The agent then asked her whether she thought it would be better if the judge were told that she had cooperated or had not cooperated. Harrison said it would be better if she talked to the agents and they told the judge she had cooperated. Harrison then confessed her role in the crime. In reversing the conviction based on Harrison's confession, the Harrison court said, that "there are no circumstances in which law enforcement officers may suggest that a suspect's exercise of the right to remain silent may result in harsher treatment by a court or prosecutor." (Harrison, supra, 34 F.3d at pp. 891-892.)
In contrast to Tingle and Harrison, there is no evidence here that Nestor Quinones threatened either to inform the government of any lack of cooperation or to treat appellant more harshly absent cooperation. Quinones did not say that he would communicate to the prosecutor that appellant had failed to cooperate, and correctly told appellant that the prosecutor and the judge would not ask appellant to tell his side of the story when he got to court. He also accurately told him that this was most likely his last chance to make a statement to the police about the girls' accusations. The questioning continued for quite some time after these remarks, and, after appellant told Quinones that he had read some of the police report, appellant said, "In that report there's everything, there is a lot of things that aren't true and I know that they are going to involve me, the report from the Doctor, one that may involve me, and none of that is true, in other words, I'm going to tell you, there was no penetration." Thus, it appears that appellant's motivation in making his statement was to set the record straight about which of the acts of which he was accused he was prepared to admit and which ones he was contesting. This precisely calibrated statement of his involvement hardly indicates that it was the product of Quinones's earlier discussion of appellant's upcoming lack of an opportunity to tell the police his side of the story.
As for appellant's argument that Nestor Quinones "downplayed the seriousness of the crime," the remark concerning the seriousness of the crime was made in the context of discussing whether the case would attract the attention of the press. Appellant had already indicated that he knew that in cases like this the defendant will "go to jail for a long time."
We have independently reviewed the record in its entirety, including all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation. After considering the totality of the circumstances in this case, we conclude the prosecution bore its burden of proving, by a preponderance of the evidence, that the statements made by appellant were voluntary. Accordingly, there was no due process violation in introducing those statements at trial. (See People v. Williams (1997) 16 Cal.4th 635, 660.)
We further observe that appellant's testimony at trial supports this conclusion. He testified that, when he spoke to Nestor Quinones, although he was never threatened, he was afraid because he had heard that the Mexican police might beat a suspect in a case like this. He was not afraid of Nestor Quinones "at the beginning" but said that "as he continued asking me more serious questions I thought that maybe there would come a time when he would hit me." He said that he went to use the rest room during the interrogation. When asked why, if he was afraid of Nestor Quinones, he did not leave the police station at that point, he answered, "Well, because I wanted to clarify the allegations against me." Although he went on to make some admissions, he stood his ground about the extent of sexual conduct with each girl, further showing that his statement was voluntary to the point of being calculated and controlled, rather than a product of his will being overborne by police action.
Sufficiency of the Evidence
When considering a challenge to the sufficiency of the evidence to support a criminal conviction or enhancement, we determine whether there is substantial evidence-i.e., evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could make the necessary findings beyond a reasonable doubt. In making that determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. Rather, we review the whole record in the light most favorable to the judgment, we draw all reasonable inferences from the evidence that support it, and we presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 319-320 [99 S.Ct. 2781]; People v. Johnson (1980) 26 Cal.3d 557, 578.)
Crystal
Appellant was convicted of five counts of aggravated lewd conduct as to Crystal under Penal Code section 288, subdivision (b)(1). Appellant was also convicted of two counts of aggravated sexual assault on a child as to Crystal. (Pen. Code, § 269.) The specified acts in these counts were rape and sodomy. All of these offenses require proof that appellant accomplished the act "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury." (Pen. Code, §§ 269, 261, subd. (a)(2), 286, 288, subd. (b)(1), 288a.)
Penal Code section 288 provides in part, "(a) Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years. [¶] (b)(1) Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years."
Penal Code section 269 provides in pertinent part: "(a) Any person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child: [¶] (1) Rape, in violation of paragraph (2) or (6) of subdivision (a) of Section 261. [¶] (2) Rape or sexual penetration, in concert, in violation of Section 264.1. [¶] (3) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 286. [¶] (4) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a. [¶] (5) Sexual penetration, in violation of subdivision (a) of Section 289."
Appellant contends, "Camacho's conviction for rape against Crystal was not based on substantial evidence." He argues that "Crystal denied under oath on two different occasions that Camacho penetrated her. Camacho's confession was in accord: While he admitted to slight penetration of Cynthia, he consistently denied penetration of Crystal. Given these facts, Camacho's conviction was not based on substantial evidence. Although the prosecutor got her to say that Camacho penetrated her, she ended her testimony denying it, despite the prosecutor's effort to get her to testify to the contrary."
Penal Code section 263 provides that, for rape, "Any sexual penetration, however slight, is sufficient to complete the crime." Crystal testified at trial that Cynthia told her that appellant was "having sex with her." She said that she meant "him placing his penis in her vagina." She was then asked, "And that was something the defendant was doing with you as well?" and she answered, "Yes." Shortly thereafter, Crystal was asked whether appellant had "put [his penis] inside [her] vagina," and she answered, "I'm not sure." She said that he put his penis "against" her vagina and "rub[bed] his penis" on her vagina. Later, she was asked, "During the times that he sexually abused you, did he rub his penis on the outside of your vagina?" She answered, "He just wiggled it." The prosecutor asked, "When you say he wiggled it, would he wiggle it on the outside of the vagina?" Crystal answered, "No, inside." Officer Somavia testified that Crystal told her that appellant "had put his penis in her vagina" and that he was "wiggling it inside of her."
Appellant asserts that Officer Somavia should not have been permitted to testify over defense counsel's hearsay objection. As discussed below, we disagree.
Appellant argues that "it is not reasonable to infer penetration from these snippets of testimony, given Crystal's unequivocal testimony that Camacho did not penetrate her." However, although some of Crystal's other testimony was inconsistent with these passages, drawing all reasonable inferences from the evidence that support the judgment, and presuming the existence of every fact the trier of fact could reasonably deduce from the evidence, there was sufficient evidence of penetration to support the conviction for aggravated sexual assault of a child by rape.
Appellant contends, "there was insufficient evidence that Camacho used 'force, violence, duress, menace, or fear of immediate and unlawful bodily injury' in connection with the counts of aggravated lewd conduct against Crystal." He argues, "Crystal did not describe any act of force or duress in connection with any of the five counts of aggravated lewd conduct. Camacho never hit nor threatened her. Like Cynthia, Crystal saw Camacho hit her mother, but he molested her both before and after that event, demonstrating that the molestations were not 'accomplished' by it, or that he utilized it to apply duress."
The terms "force" and "duress" are used in the disjunctive in Penal Code section 288, subdivision (b)(1). The evidence must disclose substantial evidence of either force or duress. Duress means "a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted." (People v. Pitmon (1985) 170 Cal.App.3d 38, 50, fn. omitted; see People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319-1320; People v. Schulz (1992) 2 Cal.App.4th 999, 1005.)
" 'The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress.' " (People v. Cochran (2002) 103 Cal.App.4th 8, 13-14.) " 'Where the defendant is a family member and the victim is young... the position of dominance and authority of the defendant and his continuous exploitation of the victim' is relevant to the existence of duress." (People v. Senior (1992) 3 Cal.App.4th 765, 775.) "Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family." (Cochran, supra, 103 Cal.App.4th at p. 14.)
Crystal was nine or 10 years old at the time she was sexually abused by appellant. At the time, appellant was "a lot bigger" than she was. The first incident that she remembered was when she in her mother's room watching television. Appellant came in the room and shut the door. Crystal testified that, without appellant saying anything, "He threw me on the bed and he took off my pants and put his finger in my butt." She did not say anything to him or tell him to stop because she was "too scared." She said, "I thought he was going to do something to me like hit me or something." She did not tell anyone what had happened because she was scared, embarrassed, and afraid appellant would "get mad" at her if she told someone and hit her. She said that whenever this happened, she was always afraid that if she did not let him do it "He would probably hurt me."
In the letter of apology that appellant wrote to Crystal, he said, "I am very sorry for the damage I have caused you, and you are probably never going to forget it."
Appellant relies on People v. Espinoza, supra, 95 Cal.App.4th 1287. In Espinoza, this court found insufficient evidence of duress to prove attempted forcible rape. The defendant's 12-year-old daughter testified that she was frightened of her father, and, when he attempted intercourse, she simply moved to thwart his advances. The defendant did not attempt to overcome her resistance, never threatened her in any way, and discontinued his conduct. The victim's sisters were in the bedroom next door, the defendant behaved as if he were crying, and asked the victim if she still loved him while he was molesting her. The defendant's demeanor itself was evidence that he did not use duress to coerce his victim's acquiescence. "[The] defendant simply lewdly touched and attempted intercourse with a victim who made no oral or physical response to his acts." (Espinoza, supra, 95 Cal.App.4th at p. 1320.) This court struck the attempted rape conviction, stating: "The only way that we could say that defendant's lewd act on [the victim] and attempt at intercourse... were accomplished by duress is if the mere fact that he was [the victim's] father and larger than her combined with her fear and limited intellectual level were sufficient to establish that the acts were accomplished by duress. What is missing here is the ' "direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted." ' [Citation.] Duress cannot be established unless there is evidence that 'the victim['s] participation was impelled, at least partly, by an implied threat....' [Citation.] No evidence was adduced that defendant's lewd act and attempt at intercourse were accomplished by any 'direct or implied threat' of any kind. While it was clear that [the victim] was afraid of defendant, no evidence was introduced to show that this fear was based on anything defendant had done other than to continue to molest her. It would be circular reasoning to find that her fear of molestation established that the molestation was accomplished by duress based on an implied threat of molestation." (Id. at p. 1321.)
Here, the victim was nine, not 12. This makes appellant much larger than his victim. Appellant's demeanor contrasts starkly with that of the defendant in Espinosa. Rather than crying and asking if Crystal loved him, he entered the room, shut the door without a word, threw his victim on the bed, and accomplished the molest. The difference in their size, the fact that as her stepfather he occupied a position of authority over her, and the implied threat of force present in his wordless display of dominance are sufficiently coercive to support a finding of duress. This same method carried over to the other acts appellant performed against Crystal through the same, cold, silent, overbearing conduct.
Cynthia
Appellant contends, "There was insufficient evidence that Camacho used 'force, violence, duress, menace, or fear of immediate and unlawful bodily injury' in connection with any of the crimes against Cynthia."
Appellant was convicted of eight count of aggravated sexual assault on a child. (Pen. Code, § 269.) The specified acts in these counts were three incidents of rape, three of forcible oral copulation, and two of sodomy. Appellant was also convicted of five counts of aggravated lewd conduct as to Cynthia under Penal Code section 288, subdivision (b)(1). Again, all of these offenses require proof that appellant accomplished the act "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury." (Pen. Code, §§ 269, 261, subd. (a)(2), 286, 288, subd. (b)(1), 288a.) As to the aggravated sexual assault on a child counts, appellant argues that appellant "did not use force in accomplishing any of the section 269 offenses against Cynthia. Cynthia did not describe any acts of force that might induce fear, nor did she describe any verbal or non-verbal threats.... In addition, she did not describe any act of force that served to overcome her will or prompted her to submit." As to the aggravated lewd conduct counts appellant argues, "Since there was insufficient evidence of force under [Penal Code section 269], it follows that there was insufficient evidence of force under [Penal Code section 288, subdivision (b)(1)]." Appellant further contends that there was insufficient evidence of duress as to all the counts involving Cynthia.
Cynthia testified that appellant did not touch her in a caring, loving way, but in a "nasty way." He would molest her in her mother's bed or her mother's closet. She was "quiet and scared" during these acts. Appellant told her not to tell anyone. Sometimes appellant would ask her to be his girlfriend. That scared Cynthia because she thought "that something sexual was going to happen when he would say that." Cynthia testified that when appellant was molesting her, "He would just say don't tell no one." She testified that if she did not let him perform these acts, appellant "would probably hurt me or hurt someone." She was afraid he would hurt her sisters or her mother. During this time, appellant would yell at her mother about various things, and this scared Cynthia. In his letter of apology to Cynthia, appellant wrote, "I feel very bad. Therefore, I do not deserve your forgiveness. But I hope [one] day you can forget my faults. I congratulate you for being valiant and bringing to an end these things I did to you. The damage is too much."
Appellant compares his case to that of the defendant in Espinoza. He states, "Cynthia's testimony is clear: Camacho never threatened her with force, violence, danger, hardship or retribution if she did not do what he wanted. Although she testified that she feared adverse consequences if she did not comply with the molestations, so did the victim in Espinoza, who was so afraid that the defendant might hurt her that she did not want to go home."
There are important differences between Cynthia's situation and that of the victim in Espinoza. Appellant came into Cynthia's life when she was a very young child and the abuse began when she was only in second grade. The 12-year-old victim in Espinoza moved in with the defendant the same month the abuse began. Cynthia had heard appellant yelling at her mother, whereas the defendant in Espinoza was gentle and loving in his demeanor. Appellant told Cynthia not to tell anyone about the abuse. The victim in Espinoza said that she was afraid, but only that the defendant might "do something" if she reported the abuse. (Espinoza, supra, 95 Cal.App.4th at p. 1293.) Cynthia was clear that she feared for her safety and that of her mother and sisters, that appellant would hit them, if she did not comply with the sexual acts themselves. Examining the record as a whole, there was substantial evidence such that a reasonable trier of fact could make the necessary findings concerning duress beyond a reasonable doubt.
Hearsay
After Crystal testified, the prosecution called Cherie Somavia, the school resource officer for the Gilroy Police Department, to testify about her interview of Crystal when the sexual abuse allegations first came to light. Somavia testified that Crystal told her that, during the incident when Crystal was folding clothes in her mother's room, appellant penetrated her vagina with his penis. Appellant contends, "Crystal's statement to S[o]m[a]via should have been excluded on hearsay grounds." He argues that "Crystal's prior statement to Somavia did not qualify as a prior consistent statement and therefore was not admissible as an exception to the hearsay rule."
Evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated is hearsay and is generally inadmissible. (Evid. Code, § 1200.) Evidence Code section 791 provides that, except in two specified circumstances, out-of-court statements by a testifying witness that are consistent with the witness's testimony fall within this hearsay prohibition. Under the first exception, prior consistent statements may be admitted if they predate an inconsistent statement used to impeach the witness's testimony. Second, prior consistent statements may be admitted after the witness's testimony has been challenged as "recently fabricated or as influenced by bias or other improper motive," so long as the prior consistent statement was made "before the bias, motive for fabrication, or other improper motive is alleged to have arisen." (Evid. Code, § 791, subd. (b).)
Appellant argues, "Crystal's statement did not qualify as a prior consistent statement because it came after the alleged motive or bias to fabricate arose." His theory of defense was that the girls fabricated their accusations to get appellant out of the house because they had seen him hit their mother. Because Crystal spoke to Somavia after appellant's battery on Y. had occurred, the bias predated the statement.
Respondent argues that appellant "forfeits this claim by his failure to object to the specific testimony he claims should have been precluded, or to renew an earlier hearsay objection at the outset of questioning when, after a sidebar the court failed to rule on the objection and merely instructed the prosecutor rephrase the question." In his reply brief, appellant argues that if the claim is deemed forfeited, he "alleges that his [trial] counsel rendered ineffective assistance."
As Somavia testified, she asked the prosecutor if he "want[ed] specifics from what [she] wrote in the report." The prosecutor told her to "let us know" when she was referring to the report to refresh her recollection. She said that she would like to refer to her report, the prosecutor said, "sure" and defense counsel interposed a hearsay objection. After an unreported bench conference, the court told the prosecutor to rephrase his question. Somavia went on to testify about various sex acts that Crystal had told her appellant had performed. This included Crystal's statement to Somavia that appellant had put his penis in Crystal's vagina.
Respondent argues that Crystal's statement about penetration is a prior consistent statement and may be admitted because it predated an inconsistent statement, Crystal's testimony at the preliminary hearing that there was no penetration, which was used by defense counsel to impeach her trial testimony.
The circumstances here suggest that counsel could have had valid tactical reasons for handling witness Somavia the way he did. We see defense counsel's initial hearsay objection a successful effort to keep Somavia from just reading aloud from her report. Thereafter, it appears that counsel made a tactical decision to allow Somavia to testify without further objection to Crystal's statement to her because the defense strategy was to demonstrate that both girls were fabricating their accounts of the abuse by showing the many inconsistencies in reporting the dates and the descriptions of the alleged sexual misconduct. This was a sound and reasonable tactical choice under the circumstances. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Crystal was born on October 26, 1994. Her interview with Somavia was on November 20, 2006. Had the interview been conducted 25 days earlier, her statement would likely have been admissible under Evidence Code section 1360 which allows the court to admit a statement made by the victim when under the age of 12 describing an act of child abuse upon that child provided three conditions are met: (1) the court finds that the time, content and circumstances of the statement provides sufficient indicia of reliability; (2) the child either testifies at the hearing or there is corroborating evidence of the hearsay statements; and (3) the proponent of the statement gives notice to the adverse party that it intends to use the statement at trial.
Sentencing
Appellant contends, "The trial court erred in assuming all of Camacho's offenses occurred on 'separate occasions' under section 667.6, subdivision (d)." He argues that the trial court erred by imposing mandatory consecutive sentences for two of the convictions for lewd conduct against Crystal. As to the offenses against Cynthia, he argues that the court erred in imposing mandatory consecutive sentences for all 13 convictions involving lewd conduct, rape, oral copulation, and sodomy.
Penal Code section 667.6, subdivision (d), allows: "A full, separate, and consecutive term shall be imposed... if the crimes involve... the same victim on separate occasions. [¶] In determining whether crimes against a single victim were committed on separate occasions..., the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his... actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his... opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions." Penal Code section 667.6, subdivision (d), mandates a "full, separate, and consecutive term" if the "crimes involve... the same victim on separate occasions," while section 667.6, subdivision (c), gives the trial court discretion to impose such a term.
Appellant acknowledges that the trial court was required to impose sentence for the crimes against Cynthia consecutive to the crimes against Crystal. He argues, however, that "one cannot tell from this record whether a number of the offenses against each victim occurred on the same or separate occasions."
As to Crystal, appellant was convicted of two counts of violating Penal Code section 269 (aggravated sexual assault), one count for the sodomy as she watched television in her mother's room and one count for the rape as she was folding laundry. He was also convicted of five counts of violating Penal Code section 288, subdivision (d) (aggravated lewd conduct with a child). Appellant does not contest the consecutive sentences for the two counts of aggravated sexual assault, as they occurred on separate occasions. He argues that the remaining counts of aggravated lewd conduct with a child were based on appellant's kissing and inserting his tongue into Crystal's mouth during the molests.
The prosecutor argued that the lewd act charge "means a lot of different things and I'm going to tell you about them. It can be French kissing tongue in mouth. It can be touching the breast. It can be touching the vaginal area. It can be a finger in the vagina. It can be additional uncharged counts of sodomy or rape. It counts for a lot of different things; and so if the defendant did those acts, any of those acts for a sexual purpose, that is a lewd act that was committed by force or duress." He further argued, "[Crystal] said pretty much every time he committed a sexual act against her he would put his tongue in her mouth and committed that lewd act.... So we know we have at least one rape. We know we have at least one sodomy plus all the other five lewd acts by the French kissing and the other acts that are uncharged."
Appellant argues that "since the kissing occurred during every molestation, it occurred during the sodomy and rape, counts one and two. Therefore, one act of aggravated lewd conduct, that is, kissing, occurred during the sodomy and one during the rape, in which case it would have been highly unlikely that either occurred on separate occasions under section 667.6, subdivision (d).... A sentencing court is not at liberty to assume that a jury convicted a defendant of offenses occurring on separate occasions when its verdicts could be based on offenses occurring on the same occasion."
As to Cynthia, appellant was convicted of 13 counts: five counts of aggravated lewd conduct, three counts of aggravated sexual assault by rape, three counts of aggravated sexual assault by oral copulation, and two counts of aggravated sexual assault by sodomy, all alleged to have been committed between June 2005 and August 2005. Cynthia's testimony was not specific as to time and place in its description of these acts. She said that he had abused her "a lot of times." She testified that more than five times appellant had sodomized her, digitally penetrated her anus, orally copulated her, had her orally copulate him, inserted his tongue in her mouth and inserted his penis in her vagina. Appellant argues, "While many of these offenses must have occurred on separate occasions given their sheer number, it is likely many did not.... For example, on occasions when Camacho raped Cynthia, he probably also digitally penetrated her, or kissed her, or orally copulated her. Nothing in the record suggests that he did not, let alone constitutes substantial evidence."
Citing this court's case of People v. Coelho (2001) 89 Cal.App.4th 86, appellant argues, "Where the basis of a conviction is unclear and allows for application of different punishments, due process requires a court to impose the lesser punishment." In Coelho, the trial court imposed consecutive prison terms on all of the defendant's 10 sex crime convictions. As to four of the convictions, the trial court erroneously believed that it lacked discretion to impose concurrent sentences. The trial court could have imposed concurrent sentences or discretionary consecutive sentences (Pen. Code, § 667.6, subd. (c)) or mandatory consecutive sentences (Pen. Code, § 667.6, subd. (d)), depending upon which one of the multiple acts the convictions were based. In this circumstance, Coelho held that "if the jury could have based its verdicts upon a number of unlawful acts and the court cannot determine beyond a reasonable doubt the particular acts the jury selected, the court should assume that the verdicts were based on those acts that would give it the most discretion to impose concurrent terms." (Id. at p. 865.)
However, in Coelho, this court determined that a remand for resentencing would "be an idle and unnecessary, if not pointless, judicial exercise." (Coelho, supra, 89 Cal.App.4th at p. 889.) This court considered "it virtually certain the [trial] court would impose 10 consecutive sentences if [it] remanded the matter." (Id. at p. 890.) This court noted that the trial "court [had] stated that it would impose consecutive sentences even if it had discretion over all 10 convictions." (Id. at p. 889.)
Here, at sentencing, the trial court said that "the sentence in this matter is mandated by law. And if mandatory consecutive sentence under 667.6(d) was not required by law there is no question but that the Court in its discretion would order consecutive sentencing based on the separate offenses committed against each of the victims on separate occasions and the facts and circumstances of the conduct in each case. By your actions you have forfeited your right to live in our community, and you will be in prison for a term that will be the rest of your life. The damage you have caused physically, psychologically to the victims is unspeakable over a lengthy period of time and warrants this ultimate punishment that's being imposed." Based on the trial court's clear expression that it would impose consecutive sentences under the section 667.6, subdivision (c) discretionary sentencing scheme, it appears that in this case, as in Coelho, a remand for resentencing would be an idle and unnecessary, if not pointless, judicial exercise.
Medical Records
At appellant's request, the trial court reviewed subpoenaed medical documents concerning Crystal and Cynthia. After the in camera review, the trial court stated that "within those records there is nothing that is discoverable." The court said, "The two packets will be resealed and will remain in the file to be reviewed by higher court if necessary at any appropriate time." Citing People v. Webb (1993) 6 Cal.4th 494, 518, and People v. Dancer (1996) 45 Cal.App.4th 1677, appellant requests that this court review the documents "to determine whether the trial court properly ruled." Respondent has no objection. After an independent review of these documents, we have determined that the record supports the trial court's characterization of their contents.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.