People v. Martinez CA2/4 ( 2015 )

Filed 12/30/15 P. v. Martinez CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B258260
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. VA130890)
v.
RICHARD RAYMOND MARTINEZ,
JR.
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Raul Anthony Sahagun, Judge. Affirmed with directions.
Nancy J. King, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary
Sanchez and Andrew S. Pruitt, Deputy Attorneys General, for Plaintiff and
Respondent.
In the underlying action, appellant Richard Raymond Martinez, Jr. was
convicted of several counts of forcible lewd act upon a child, lewd act upon a
child, and aggravated sexual assault of a child. He challenges the sufficiency of
the evidence to support the convictions, and contends there was evidentiary error.
Respondent maintains that the abstract of judgment fails to reflect certain
mandatory fees. We reject appellant’s contentions, but conclude that the abstract
of judgment does not accurately reflect the fees imposed by the trial court. We
therefore affirm the judgment, and direct the preparation of an amended abstract of
judgment.
RELEVANT PROCEDURAL HISTORY
On June 23, 2014, a 10-count second amended information was filed,
charging appellant with offenses under the Penal Code against a female child,
A.B.1 The information alleged that between April 1, 2013 and June 30, 2013,
appellant engaged in aggravated sexual assault of a child involving sodomy
(§ 269, subd. (a)(3); count 1), aggravated sexual assault of a child involving rape
(§ 269, subd. (a)(1); count 2), aggravated sexual assault of a child involving oral
copulation (§ 269, subd. (a)(4); count 3), aggravated sexual assault of a child
involving sexual penetration (§ 269, subd. (a)(5); count 4), forcible lewd acts upon
a child (§ 288, subd. (b)(1)); counts 5, 6, and 7), and lewd acts upon a child
(§ 288, subd. (a)); counts 8, 9, and 10). Accompanying all the counts were special
allegations that appellant had suffered six prior convictions for forcible lewd acts
upon a child or dependent person (§ 288, subd. (b)) constituting serious felonies
(§ 667, subd. (a)(1)), felony sex offenses (§ 667.61, subds. (a)(1), (a)(4)), and
1 All statutory citations are to the Penal Code, unless otherwise designated.
2
strikes within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)). Appellant pleaded not guilty to all counts and denied the
special allegations.
At trial, following presentation of the prosecution’s case-in-chief, the court
granted appellant’s motion under section 1118.1 to dismiss the charge of
aggravated sexual assault upon a child involving sexual penetration (count 4).
The jury found appellant guilty on the remaining counts. After finding the prior
conviction allegations to be true, the court sentenced appellant to an aggregate
term of 105 years to life.
FACTS
A. Prosecution Evidence
1. Appellant’s Prior Convictions
R.A. was born in 1977. When she was 9 or 10 years old, her mother M.
began a relationship with appellant. At some point, appellant and M. began living
together. When R.A. was 12 or 13 years old, appellant began touching her
inappropriately. He then repeatedly entered her bedroom at night, and inserted his
penis in her vagina and anus. In 1992, after R.A. disclosed appellant’s
misconduct, he was convicted of six counts of forcible lewd acts on a child or
dependent (§ 288, subd. (b)), and sentenced to ten years in prison.
2. Current Offenses
While appellant was serving his term of imprisonment, he and M. married,
and following his release from prison, they lived together in an apartment. R.A.’s
sister Nicole married Charles B., with whom she had four daughters, including
A.B., who was born in 1999. When A.B. was 12 years old, she began visiting
3
appellant’s home with her parents, who warned her that appellant had engaged in
inappropriate conduct with her aunt R.A. A.B.’s visits with appellant occurred on
weekends at least twice per month. Although A.B.’s parents initially barred her
from being alone with appellant, they later permitted her to be with him without
direct supervision, but told A.B. to report any unusual conduct by appellant.
A.B. testified that when she first visited appellant, she enjoyed his company
and gave him a card describing him as “the best grandpa ever.” According to A.B,
after some normal visits, appellant squeezed her “butt” when she took a water
bottle from the refrigerator. A.B. did not report the incident because she thought it
might have been an accident.
A.B. further testified that during a subsequent visit, when she retrieved
coloring pencils from appellant’s bedroom, he placed his hands on her waist,
turned her around, held her as she resisted, kissed her on the lips, and then pushed
his tongue into her mouth. He said that if she told anyone, he would hurt her
family. After the incident, appellant kissed A.B. in the same manner “almost
every time” she visited him. On each occasion, appellant told her that he would
hurt her family if she reported his conduct.
A.B. further testified that on a later occasion, while she was in a bathroom,
appellant pushed her against the sink, pulled down her pants and underwear, and
put his penis into her anus. Although A. B. told him to stop, he next put his penis
into her vagina. Before leaving the bathroom, he said that he would hurt A.B.’s
family if she disclosed the incident to them.
A.B. further testified that during a subsequent visit, she was playing with
her sisters in the recreation room of appellant’s apartment building. Appellant sat
down beside her, placed a pillow over their adjoining laps, and rubbed her vaginal
area with his hand. He then took her hand and made her rub his penis. Later that
4
day, appellant called A.B. over to him with the promise of ice cream. He pushed
her to her knees, placed his hand on her neck, and despite her resistance, placed
his penis in her mouth. When A.B.’s father entered the room, appellant quickly
pulled up his pants and said that he had been showing A.B. something under a
nearby sink. A.B. did not describe what had happened to her father, but later
disclosed the incident to her mother, who contacted the police.
Charles B. testified that when he entered the recreation room he saw
appellant standing next to A.B., who was underneath the sink. Because appellant
seemed nervous, Charles thought that “something was very weird going on there.”
When he questioned A.B. regarding the incident, she said nothing had happened.
According to A.B., she did not relate the incident to her father “[b]ecause of
what [appellant had] sa[id.]” When asked why she never sought immediate aid
from her parents regarding appellant’s misconduct, she stated: “I didn’t want them
to know or see because I didn’t want them to get hurt. I would have liked to tell
somebody so it could have stopped.”
After appellant’s arrest, several “torn up” letters were found in A.B.’s
bedroom. In the letters, A.B. stated that she loved appellant. A.B described all
but one of the letters as “lies” that appellant made her write. According to A.B.,
appellant initially compelled her to write a letter to him during each visit. To
avoid writing the letters while visiting, A.B. wrote several in advance of the visits.
The letters contained statements that A.B. thought appellant wanted to hear.
Regarding the remaining letter, A.B. testified that it contained remarks regarding a
boy she knew that were intended to make appellant “jealous.” A.B. stated that she
wrote the letter to “[s]ee if [she could] get [appellant] to stop or make him jealous
5
or something to stop .” She stated: “I did not like what he was doing, but . . . if he
thought that I liked him maybe he’d leave me alone and stop.”2
B. Defense Evidence
Appellant’s wife M. Martinez testified that in 1991, shortly after appellant
was arrested for sexually abusing R.A., she asked R.A. whether the allegations
against appellant were true. According to M., R.A. replied, “No, Mommy, he
didn’t do that.” In 1992, M. married appellant. She stated that she would not have
done so had she believed that appellant molested R.A.
M. further testified that when A.B. visited her, A.B.’s parents instructed
A.B. never to be alone with appellant, and A.B.’s father watched her closely.
According to M., A.B. displayed a very strong affection for appellant. M.
observed nothing suggesting that appellant was sexually abusing A.B.
Appellant denied engaging in any type of sexual misconduct with A.B. or
R.A. Appellant stated that he entered a plea of no contest to the charges regarding
R.A. only because he received poor legal representation and wished to avoid a
long prison term.
Appellant further testified that after his arrest for allegedly sexually
assaulting A.B., he was interviewed by Los Angeles County Sheriff’s Department
Detective Rudy Acebedo. Appellant told Acebedo that he never touched A.B.
sexually. Appellant denied telling Acebedo that he had sodomized R.A., that he
2 Jan Hare, a forensic nurse, testified that she examined A.B. and found no
physical traces of vaginal or anal penetration. Hare further testified that because
A.B. had undergone puberty, the absence of such traces was consistent with
appellant’s alleged misconduct.
6
had a sexual impulse problem, and that he would benefit from sexual impulse
counseling.3
C. Prosecution Rebuttal
Detective Acebedo testified that on July 4, 2013, he interviewed appellant
for approximately one hour and fifteen minutes. The prosecution presented a four-
minute excerpt from a video recording of the interview. During that excerpt,
appellant admitted the truth of R.A.’s accusations, stating that what he did was
“pretty horrible” and that he wished he were dead. On cross-examination,
Detective Acebedo testified during the interview, he “ruse[d]” appellant, that is,
falsely stated that he possessed “certain evidence” regarding appellant’s
misconduct relating to A.B.
D. Defense Rebuttal
Appellant testified that during the interview, Detective Acebedo said that,
appellant’s DNA had been found in A.B.’s mouth. Because that remark was false,
appellant provided false information to Detective Acebedo, including the
statements regarding R.A. reflected in the video recording presented to the jury.
DISCUSSION
Appellant contends (1) there was insufficient evidence to support the
convictions, (2) the evidence of his prior convictions relating to R.A. was
improperly admitted, and (3) the trial court committed evidentiary error related to
the prosecution’s rebuttal evidence. Respondent maintains that the court, in
3 Ana Maria Sandoval, appellant’s neighbor, testified that he was a friendly,
caring, and loving person who helped her with her children.
7
sentencing appellant, incorrectly failed to impose certain mandatory fees. For the
reasons discussed below, we reject appellant’s contentions, but conclude the
judgment must be modified to reflect additional fees.
A. Sufficiency of the Evidence Regarding Appellant’ Offenses
Appellant challenges the sufficiency of the evidence to support his
convictions for aggravated sexual assault of a child (counts 1 through 3), and
forcible lewd acts upon a child (counts 5 though 7). As elaborated below (see pts.
A.2. & A.3, of the Discussion, post), those counts were predicated on appellant’s
act of kissing A.B. when she retrieved coloring pencils in the bedroom, and his
sexual abuse of A.B. during later visits when she was in the bathroom and
recreation room. Appellant contends there is insufficient evidence that he acted
with the levels of force or duress required for the offenses. As explained below,
we disagree.4
1. Governing Principles
4 “‘The proper test for determining a claim of insufficiency of evidence in a
criminal case is whether, on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must
view the evidence in the light most favorable to the People and must presume in
support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is
reasonable, credible, and of solid value, nonetheless it is the exclusive province of
the trial judge or jury to determine the credibility of a witness and the truth or
falsity of the facts on which that determination depends. [Citation.] Thus, if the
verdict is supported by substantial evidence, we must accord due deference to the
trier of fact and not substitute our evaluation of a witness’s credibility for that of
the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal. 4th 1199,
1206.)
8
The pertinent offenses required proof that appellant used force, duress, or
some other improper means in committing the crime. Under counts 1 through 3,
appellant was convicted of aggravated sexual assault of a child pursuant to
subdivisions (a)(1), (a)(3), and (a)(4) of section 269, which define offenses against
victims under 14 years of age involving rape, sodomy, and oral copulation, as
specified in enumerated statutes.5 Those statutes required the prosecution to show
that the acts of rape, sodomy, and oral copulation were accomplished “against [the
victim’s] will by means of force, violence, duress, menace, or fear of immediate
and unlawful bodily injury . . . .” (§§ 261, subd. (a)(2), 286, subd. (c)(2), 288a,
subdivision (c)(2).) Under counts 5 through 7, appellant was convicted of forcible
lewd acts upon a child pursuant to subdivision (b)(1) of section 288, which
contains a similar -- but not identical -- provision that requires a showing of the
use of “force, violence, duress, menace, or fear of immediate and unlawful bodily
injury,” but lacks any reference to the victim’s will.6
5 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. [¶]
. . . [¶] (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.”
6 Subdivision (a) of section 288 prohibits the commission of a “lewd or
lascivious act” on a child under the age of 14 years “with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual desires” of the perpetrator
or the victim. Subdivision (b)(1) of section 288 defines an aggravated form of that
offense committed “by use of force, violence, duress, menace, or fear of immediate
and unlawful bodily injury . . . .” (People v. Soto (2011) 51 Cal. 4th 229, 237
(Soto).)
9
The force required for a forcible lewd act upon a child (§ 288, subd. (b)(1))
differs from that necessary for aggravated assault of a child involving rape,
sodomy, and oral copulation (§ 269, subds. (a)(1), (a)(3), (a)(4)). “Decisional law
makes clear that the definition of the word ‘force’ in sexual offense statutes
depends on the offense involved. To convict for committing a forcible lewd act
against a child in violation of section 288, subdivision (b), the prosecution must
prove that the defendant used physical force substantially different from or
substantially greater than that necessary to accomplish the lewd act itself.[]
[Citation.]” (In re Asencio (2008) 166 Cal. App. 4th 1195, 1200, fn. omitted
(Asencio).) In contrast, to show aggravated sexual assault of a child by rape and
oral copulation, the prosecution must prove the existence of force sufficient to
overcome the victim’s will. (Id. at pp. 1200-1206.) That also appears to be true of
sexual assault of a child by sodomy. (See People v. Hale (2012) 204 Cal. App. 4th
961, 976-979 & fn. 6 (Hale).)
The showings of duress required for the offenses of forcible lewd act upon a
child and aggravated assault of a child are subject to standards ordinarily stated in
identical terms. (People v. Leal (2004) 33 Cal. 4th 999, 1004-1005; People v.
Cochran (2002) 103 Cal. App. 4th 8, 13 (Cochran), disapproved on another ground
in Soto, supra, 51 Cal.4th at p. 248, fn. 12.) “‘Duress’ as used in this context
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.’ [Citations.] ‘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.’ [Citation.]
Other relevant factors include threats to harm the victim, physically controlling the
10
victim when the victim attempts to resist, and warnings to the victim that revealing
the molestation would result in jeopardizing the family. [Citations.]” (Cochran,
supra, 103 Cal.App.4th at pp. 13-14.)
Whether the standards for duress relating to the two offenses are fully
identical is an unresolved question, in view of our Supreme Court’s decision in
Soto, supra, 51 Cal. 4th 229. There, the court concluded that under section 288,
subdivision (b)(1), consent is not a defense to the offense because “duress is
measured by a purely objective standard . . . .” (Soto, supra, at p. 246.)
Accordingly, “a jury could find that the defendant used threats or intimidation to
commit a lewd act without resolving how the victim subjectively perceived or
responded to this behavior.” (Ibid.) In so concluding, the court placed special
emphasis on the Legislature’s deletion of the phrase “‘against the will of the
victim’” from the “force, violence, duress, menace, or fear” requirement applicable
to the current version of section 288, subdivision (b)(1). (Soto, supra, 51 Cal.4th
at pp. 245-246.) Because the analogous provisions relating to aggravated assault
of a child retain that phrase, it is unclear whether duress in that context is also
subject to a purely objective standard. However, it is unnecessary for us to resolve
that question because -- as noted below (see pt. A.3., of the Discussion, post) --
there is sufficient evidence that appellant’s threats engendered compliance in A.B.
with respect to the misconduct charged in counts 1 through 3.
2. Aggravated Sexual Assault of a Child (Counts 1 through 3)
We begin with appellant’s contention regarding his convictions for
aggravated sexual assault of a child, as charged in counts 1 through 3. During
closing arguments, the prosecutor identified the conduct underlying those counts
as appellant’s act of penetrating A.B.’s anus in the bathroom, his act of penetrating
11
her vagina in the bathroom, and his act of compelling her to perform oral
copulation in the recreation room. The prosecutor argued that the acts involved
both force and duress.
We conclude the jury could properly have found the requisite force. In
Asencio, the defendant was convicted of aggravated sexual assault of a child by
forcible sexual penetration under section 269, subdivision (a)(5). (Asencio, supra,
166 Cal.App.4th at p. 1199.) The appellate court held there was sufficient
evidence of force to support the conviction, as the record showed the defendant
pulled down his six-year-old victim’s underwear, rolled onto her, and penetrated
her vagina with his finger. (Id. at p. 1205.) As the offenses under section 269
charged against appellant are subject to the same standard of force applied in
Asencio (Asencio, supra, 166 Cal.App.4th at p. 1200; see Hale, supra, 204
Cal.App.4th at pp. 976-979 & fn. 6), the record discloses ample evidence of the
requisite force. In the bathroom, appellant pushed A.B. against the sink, pulled
down her pants and underwear, and put his penis into her anus and vagina. In the
recreation room, appellant pushed A.B. to her knees, held her neck, and overcame
her resistance in placing his penis in her mouth. Accordingly, the showing of
force was sufficient to support appellant’s convictions.
We further conclude the jury could properly have found the existence of
duress. Prior to the incidents in the bathroom and recreation room, appellant
repeatedly threatened to injure A.B.’s family if she revealed his misconduct.
Those express threats were effective, as A.B. testified they deterred her from
disclosing his abuse. In view of the evidence regarding the efficacy of the actual
threats, the jury could properly infer that the existence of a continuing implied
threat of harm to A.B. or her family was sufficient to secure the acquiescence of a
reasonable person. (Cochran, supra, 103 Cal.App.4th at pp. 13-14.) Indeed,
12
although appellant made no express threats in the recreation room before or after
his misconduct, A.B. testified that she did not immediately disclose that
misconduct because she feared appellant would hurt her family if she did so.
Other factors also support the existence of duress, including his relationship to
A.B. as her step-grandfather, and his physical control over her during the
incidents. (See Hale, supra, 204 Cal.App.4th at pp. 979-980 & fn. 6 [for purposes
of forcible sodomy (§ 286, subd. (c)(2)(A)), duress was shown by evidence that
father engaged in the sodomy of his daughter between the ages of 6 and 10, used
physical force to accomplish the misconduct, and told her not to reveal his conduct
because he could go to prison].)
Pointing to A.B.’s seemingly affectionate letters, appellant suggests his
threats did not affect her conduct and that no duress was present. This argument
misapprehends our review for substantial evidence. We do not engage in
independent fact finding, but instead affirm the jury’s determinations if they are
supported by any logical inferences grounded in the evidence. (People v.
Rodriguez (1999) 20 Cal. 4th 1, 11-14.) That is the case here. In sum, there is
sufficient evidence to support appellant’s convictions for aggravated sexual
assault of a child.
3. Forcible Lewd Acts Upon a Child (Counts 5 through 7)
We turn to appellant’s contention regarding his convictions for forcible
lewd acts upon a child, as charged in counts 5 through 7. During closing
arguments, the prosecutor identified the conduct underlying those counts as
appellant’s act of kissing A.B. when she retrieved coloring pencils in the bedroom,
his act of rubbing A.B.’s vagina in the recreation room, and his act of making A.B.
13
rub his penis in the recreation room.7 The prosecutor argued that each act
involved force or duress.
The record discloses sufficient evidence that appellant’s conduct in kissing
A.B. and making her rub his penis involved the requisite force. As explained
above (see pt. A.1, of the Discussion, ante), the force required under section 288,
subdivision (b), must be “substantially different from or substantially greater than
that necessary to accomplish the lewd act itself.” (Asencio, supra, 166
Cal.App.4th at p. 1200.) Nonetheless, demonstrating that level of force ordinarily
“is not a heavy burden.” (People v. Mom (2000) 80 Cal. App. 4th 1217, 1224-1225,
disapproved on another ground in People v. Griffin (2004) 33 Cal. 4th 1015, 1028),
as the prosecution is not obliged to show that the defendant used vigorous force
during the lewd act.
In People v. Pitmon (1985) 170 Cal. App. 3d 38, 44-45, disapproved on
another ground in Soto, supra, 51 Cal.4th at p. 248, fn. 12, the defendant took a
boy’s hand, placed it on his own genitals, and rubbed himself with the boy’s hand.
Later, he pushed the boy’s back slightly as the boy orally copulated him. (Id. at
p. 48.) The appellate court concluded that the defendant’s use of the boy’s hand as
a tool and his pushing the boy’s back constituted acts of force, for purposes of
section 288, subdivision (b)(1).) (Pitmon, supra, 170 Cal.App.3d at p. 48.)
In People v. Babcock (1993) 14 Cal. App. 4th 383, 385, the defendant took
the hand of his first victim and made her touch his genitals. He also grabbed the
hand of his second victim and placed it on his genitals. (Ibid.) When she tried to
7 Although the prosecutor did not fully characterize the relevant kissing, he
stated that when it occurred, appellant “held [A.B.] there against her will . . . .”
The only incident to which A.B. expressly testified meeting that description is the
first occasion appellant kissed her.
14
pull her hand away, he pulled it back. (Ibid.) The appellate court held that the
defendant’s conduct displayed the requisite level of force with respect to both
victims, even though the first victim had not resisted him. (Id. at pp. 386-387.) In
so concluding, the court remarked that “resistance is not required to prove forcible
sexual assault . . . .” (Id. at p. 387.)
Here, appellant’s misconduct in kissing A.B. and making her rub his penis
demonstrated the requisite level of force. In the bedroom, appellant placed his
hands on A.B.’s waist, turned her around, held her as she resisted, kissed her on
the lips, and pushed his tongue into her mouth. In the recreation room, appellant
sat down beside A.B., placed a pillow over their adjoining laps, took her hand and
compelled her to rub his penis. Accordingly, in kissing A.B. and making her rub
his penis, appellant applied the level of force required under section 288,
subdivision (b)(1).
There also was adequate evidence that appellant’s acts of rubbing A.B’s
vagina and making her rub his penis involved duress. Those acts occurred
together while appellant sat next to A.B. in the recreation room, shortly before
appellant forced her to engage in oral copulation. As explained above (see
pt. A.2., of the Discussion, ante), the record establishes an implied threat of harm
that secured A.B’s acquiescence to the abuse in the recreation room, as well as
other factors supporting a determination of duress. Accordingly, appellant’s acts
of rubbing A.B’s vagina and compelling her to rub his penis involved duress, for
purposes of section 288, subd. (b)(1).
People v. Espinoza (2002) 95 Cal. App. 4th 1287, upon which appellant
relies, is distinguishable. There, the defendant was charged with one count of
forcible lewd act upon a child and several other offenses. (Id. at p. 1295.) The
evidence at trial showed that on five occasions, the defendant molested his
15
intellectually challenged daughter. (Id. at pp. 1291-1293.) Although the evidence
also showed that the defendant was larger than the victim and that she was scared
of him, there was no evidence that he threatened her. (Id. at pp. 1292-1293, 1319.)
The prosecutor submitted the charge of forcible lewd conduct to the jury solely on
a theory of duress. (Id. at p. 1319.) In reversing the defendant’s conviction for
that offense, the appellate court concluded there was no evidence of an express or
implied threat adequate to establish duress. (Id. at p. 1321.) As explained above,
that is not the case here. In sum, there is sufficient evidence to support appellant’s
convictions for forcible lewd conduct upon a child.
B. Admission of Prior Offenses
Appellant contends the trial court erred in admitting evidence of appellant’s
prior offenses involving R.A. under Evidence Code sections 1108 and 352. For
the reasons explained below, we reject the contention.
Subdivision (a) of Evidence Code section 1108 provides that “[i]n 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 [Evidence Code s]ection 1101, if the evidence is not inadmissible
pursuant to [Evidence Code s]ction 352.”8 Subdivision (d)(1)(A) of Evidence
8 Evidence Code section 1101 states that except as provided in section 1108
and other sections, “evidence of a person’s character or a trait of his or her
character (whether in the form of an opinion, evidence of reputation, or evidence
of specific instances of his or her conduct) is inadmissible when offered to prove
his or her conduct on a specified occasion.” (§ 1101, subd. (a).)
Under Evidence Code section 352, the trial court has the discretion to
exclude evidence when “the probative value of particular evidence is outweighed
(Fn. continued on next page.)
16
Code section 1108 defines “[s]exual offense” to include forcible lewd acts on a
child or dependent (§ 288, subd. (b)).9
In determining whether to admit evidence of appellant’s prior offenses
under Evidence Code sections 1108 and 352, the trial court was obliged to
consider “its nature, relevance, and possible remoteness, the degree of certainty of
its commission and the likelihood of confusing, misleading, or distracting the [trier
of fact] . . . , its similarity to the charged offense, its likely prejudicial impact on
the [trier of fact], . . . the burden on the defendant in defending against the
uncharged offense, and the availability of less prejudicial alternatives to its
outright admission . . . . [Citations.]” (Falsetta, supra, 21 Cal.4th at p. 917.) The
court’s ruling is reviewed for an abuse of discretion. (People v. Wesson (2006)
138 Cal. App. 4th 959, 969.)
In admitting the evidence of appellant’s prior offenses over his objection,
the trial court concluded that it fell within the scope of section 1101, and was more
probative than prejudicial under section 352. The court stated: “The prior conduct
is very similar to the conduct in this case. It involved a girl that was . . . about 13,
a member of the family, the defendant had access to her -- virtually the same
circumstances. The prior conduct is not more inflammatory . . . [than] in this
by concerns of undue prejudice, confusion or consumption of time. [Citation.]”
(People v. Rodrigues (1994) 8 Cal. 4th 1060, 1124.)
9 “[T]he Legislature’s principal justification for adopting [Evidence Code]
section 1108 was a practical one: By their very nature, sex crimes are usually
committed in seclusion without third party witnesses or substantial corroborating
evidence. The ensuing trial often presents conflicting versions of the event and
requires the trier of fact to make difficult credibility determinations. [Evidence
Code s]ection 1108 provides the trier of fact in a sex offense case the opportunity
to learn of the defendant’s possible disposition to commit sex crimes. [Citation.]”
(People v. Falsetta (1999) 21 Cal. 4th 903, 915 (Falsetta).)
17
case, [and] should not [involve] undue consumption of time.” The court rejected
appellant’s contention that the prior offenses were “too stale to be probative,”
stating: “[T]he incident occurred in 1991. [Appellant] did go to prison for some
seven or eight years [for the offenses]. So the appropriate time frame within
which to determine whether it is remote would be the time [after] he’s released to
the present offense, and I don’t think it is sufficiently remote . . . .”
Appellant maintains the trial court erred in admitting the evidence because
the prior offenses are too remote in time from his current crimes. We disagree. In
People v. Robertson (2012) 208 Cal. App. 4th 965, 970, the defendant was charged
with kidnap for rape and related offenses. The evidence at trial showed that in
2009, the defendant lured his victim into a garage, locked it, and sexually
assaulted her. (Id. at pp. 972-973.) The court admitted, under Evidence Code
section 1108, evidence that approximately 34 years earlier, the defendant
committed a rape and kidnapping. (Robertson, supra, 208 Cal.App.4th at pp. 987-
988, 992.) During that incident, the defendant picked up a hitchhiker, drove her to
an isolated field, and raped her. (Ibid.) In affirming the admission of the earlier
incident, the appellate court rejected a contention that it was too remote, stating
that “‘“substantial similarities between the prior and the charged offenses balance
out the remoteness of the prior offenses.”’” (Id. at p. 992.) Applying that
standard, the appellate court determined that the similarities between the earlier
crimes and the charged offenses were sufficient to support the trial court’s ruling.
(Id. at pp. 992-994.)
We reach the same conclusion here. As the trial court noted, appellant’s
prior and current offenses are materially identical. Both involved victims to whom
he had access through his relationship to M., and essentially the same misconduct.
18
In view of those similarities, the trial court did not err in admitting evidence of the
prior offenses.
Appellant’s reliance on People v. Harris (1998) 60 Cal. App. 4th 727 is
misplaced. There, the defendant, a mental health nurse, was charged with sexual
misconduct with female patients who were vulnerable due to their mental
condition. (Harris, supra, 60 Cal.App.4th at pp. 730-731.) The trial court
admitted evidence under section 1101 that over 20 years earlier the defendant had
brutally raped a woman who had never been one of his patients. (Harris, supra, at
pp. 733-736, 739.) The appellate court concluded that admitting the evidence was
error because the rape was inflammatory, remote in time, and unlike the
misconduct with which the defendant had been charged. (Id. at p. 741.) In
contrast, the offenses charged against appellant are virtually identical to his prior
offenses. In sum, the evidence of appellant’s prior offenses was properly
admitted.10
C. Prosecution’s Rebuttal Evidence
Appellant contends the trial court committed evidentiary error relating to the
prosecution’s rebuttal. He maintains the court improperly denied his request that
the entire video recording of his interview with Detective Acebedo be presented to
the jury. In addition, he argues that the court improperly limited his cross-
10 Appellant contends the admission of his prior offenses denied him due
process. However, the admission of evidence under Evidence Code section 1108
does not offend due process when, as here, its potential for prejudice has been
properly assessed under Evidence Code section 352. (Falsetta, supra, 21 Cal.4th
at pp. 917-919.)
19
examination of Acebedo. As explained below, appellant has shown no reversible
error.
1. Underlying Proceedings
During the defense case-in-chief, appellant denied sexually abusing A.B.
and R.A. Appellant further testified that during his interview with Detective
Acebedo, he asserted that he “never touched [A.B.] sexually.” Appellant denied
admitting to Acebedo that he had sodomized R.A., that he had a sexual impulse
problem, and that he would benefit from sexual impulse counseling.
Following appellant’s testimony, the prosecution sought leave to present a
four-minute excerpt from the video recording of appellant’s interview with
Detective Acebedo. That excerpt disclosed that contrary to appellant’s testimony,
he admitted his sexual abuse of R.A. to Acebedo. In permitting presentation of the
excerpt, the court denied appellant’s request that the entire video recording be
played in order to show “the context of the interview.”
In order to establish the foundation of the excerpt, the prosecution called
Detective Acebedo as a witness. During Acebedo’s cross-examination, the trial
court permitted defense counsel to elicit that in the course of the interview,
Acebedo had rused appellant, that is, lied to him regarding the existence of
“certain evidence.” The court sustained hearsay objections to defense counsel’s
inquiries whether appellant denied sexually abusing A.B., whether Acebedo told
appellant that his DNA had been found in A.B.’s mouth, and whether Acebedo
had arranged for A.B. to phone appellant in an effort to secure admissions from
him.
During the defense rebuttal, appellant testified that during his interview
with Detective Acebedo, he knew Acebedo was providing false information, and
20
he, in return, provided false information to Acebedo, including the statements in
the excerpt of the video recording.
2. Exclusion of Complete Video Recording of Interview
Appellant contends the court erred under Evidence Code section 356 in
permitting the presentation of only a four-minute excerpt from the 75-minute long
video recording of the interview.11 He maintains he was entitled to have the jury
view the entire video recording, arguing that the excerpt omitted the context of his
admissions regarding R.A., which he asserts occurred “amidst a sea of denials” to
the charges regarding A.B. We disagree.
“The purpose of [Evidence Code section 356] is to prevent the use of
selected aspects of a conversation, act, declaration, or writing, so as to create a
misleading impression on the subjects addressed. [Citation.] Thus, if a party’s
oral admissions have been introduced in evidence, he may show other portions of
the same interview or conversation, even if they are self-serving, which ‘have
some bearing upon, or connection with, the admission . . . in evidence.’” (People
v. Arias (1996) 13 Cal. 4th 92, 156.) Nonetheless, the provision “permits
introduction only of statements ‘on the same subject’ or which are necessary for
understanding of the statements already introduced. The ‘other conversation’
referred to in Evidence Code section 356 must have some bearing upon, or
connection with, the admission or declaration in evidence. [Citations.]” (People
11 Evidence Code section 356 provides: “Where part of an act, declaration,
conversation, or writing is given in evidence by one party, the whole on the same
subject may be inquired into by an adverse party; when a letter is read, the answer
may be given; and when a detached act, declaration, conversation, or writing is
(Fn. continued on next page.)
21
v. Breaux (1991) 1 Cal. 4th 281, 302.) The trial court’s ruling under the provision
is reviewed for an abuse of discretion. (People v. Parrish (2007) 152 Cal. App. 4th
263, 274.)
Under these principles, the trial court may exclude portions of a police
interview unrelated to the portion admitted. In People v. Chism (2014) 58 Cal. 4th
1266, 1280, the defendant was charged with the robbery of a liquor store and
attempted murder of a liquor store clerk. At trial, the prosecution called a
detective to testify about an interview he had conducted with the defendant’s
accomplice. (Id. at p. 1323.) After the detective described the accomplice’s
accounts of the defendant’s statements while preparing for the robbery, defense
counsel asked the detective whether the accomplice told him that the defendant
had said he shot the clerk because he had reached for a gun. (Id. at p. 1324.) In
excluding the evidence, the trial court rejected defense counsel’s contention that
Evidence Code section 356 required the admission of the defendant’s purported
post-shooting remark. Affirming that ruling, our Supreme Court concluded that
“[n]othing about what had been presented to the jury was misleading, and the
excluded statement had no bearing on the portion of [the accomplice’s] interview
that had been introduced into evidence.” (Id. at p. 1325.)
We reach the same conclusion here regarding the excluded portions of
appellant’s interview with Detective Acebedo. The interview remarks introduced
into evidence were properly admitted as prior inconsistent statements to impeach
appellant’s testimony at trial, viz., his denial that he sexually abused R.A. (Evid.
Code, § 780, subd. (h)), and as admissions of a party to support the existence of
given in evidence, any other act, declaration, conversation, or writing which is
necessary to make it understood may also be given in evidence.”
22
prior sexual misconduct regarding R.A. (Evid. Code, §§ 1108, 1240). That portion
of the interview cannot be regarding as misleading, as it did not challenge -- or
even relate to -- appellant’s denial of the current charges regarding A.B., which he
asserted at trial. Nor did the excluded portions cast doubt on whether appellant
had, in fact, made the remarks reflected in the portion introduced into evidence. In
sum, the trial court did not err in rejecting appellant’s request that the entire video
recording of the interview be presented to the jury.12
3. Cross-Examination
Appellant also contends the trial court improperly sustained the
prosecution’s objections during defense counsel’s cross-examination of Detective
Acebedo. As noted above (see pt. C.1., of the Discussion, ante), the court
sustained hearsay objections to defense counsel’s questions whether appellant
denied sexually abusing A.B., whether Acebedo told appellant that his DNA had
been discovered in A.B.’s mouth, and whether Acebedo had arranged for A.B. to
try to secure admissions from appellant. He argues that the court’s evidentiary
rulings contravened his constitutional rights of due process and confrontation.
Because appellant asserted no constitutional claim regarding the exclusion
of the evidence before the trial court, he has forfeited his contention, insofar as it
is independent of evidentiary error under state law. (People v. Streeter (2012) 54
Cal. 4th 205, 236-237.) He also has forfeited any challenge to the rulings based on
12 Appellant contends the trial court’s rulings under Evidence Code section
356 contravened his constitutional rights of due process and confrontation. As the
rulings were correct, his contention fails. (People v. Farley (2009) 46 Cal. 4th
1053, 1101-1103; People v. Dejourney (2011) 192 Cal. App. 4th 1091, 1104.)
23
evidentiary error under state law for want of argument that the rulings were
incorrect.
Furthermore, we would reject his contention were we to address it, as any
error in the rulings was harmless even under the stringent “beyond a reasonable
doubt” standard for federal constitutional error articulated in Chapman v.
California (1967) 386 U.S. 18, 24. During the defense case-in-chief, appellant
testified that he denied the allegations of sexual abuse regarding A.B during his
interview with Detective Acebedo. Later, during the prosecution rebuttal,
Acebedo acknowledged that he tried to “ruse” appellant during the interview.
Following that testimony, during the defense rebuttal, appellant stated (1) that he
knew that Acebedo was providing him with false information -- including the false
information regarding the presence of appellant’s DNA in A.B.’s mouth -- and (2)
that in response, he made false admissions relating to R.A. reflected in the portion
of the interview presented to the jury. The evidence that appellant sought to
introduce during Acebedo’s cross-examination was thus effectively admitted in
other ways, coupled with appellant’s explanation of the remarks reflected in the
portion of the interview introduced into evidence. Accordingly, it is clear beyond
a reasonable doubt that any error in excluding the evidence did not contribute to
the jury’s verdict. In sum, appellant has failed to show reversible error.
D. Fees
Respondent contends the abstract of judgment fails to reflect the trial court’s
imposition of certain mandatory fees relating to the counts on which appellant was
convicted (counts 1 through 3 and 5 through 10). Section 1465.8, subdivision (a),
provides that a $40 court operations assessment -- sometimes called a “[c]ourt
[s]ecurity [f]ee” -- “shall be imposed” on every conviction for a criminal offense.
24
Similarly, Government Code section 70373 provides that a $30 court construction
fee -- sometimes called a “[c]riminal [c]onviction [a]ssessment” -- “shall be
imposed” on every conviction for a criminal offense. (Govt. Code § 70373.)
In sentencing appellant to an aggregate term of 105 years to life, the trial
court imposed consecutive terms on counts 1, 5, 6, and 7, and concurrent terms on
counts 2 and 3. The court stayed punishment on counts 8 through 10, pursuant to
section 654. The court also imposed a court security fee of $40 and a criminal
conviction fee of $30 “per count.” However, the abstract of judgment reflects the
imposition of court security fees and criminal conviction fees on only four
undesignated counts: specifically, it states that appellant is obliged to pay court
security fees totaling $160 and criminal conviction fees totaling $120.
Although the parties agree that the abstract of judgment contains errors
relating to the fees, they disagree regarding the precise errors. Respondent argues
that the abstract of judgment should reflect the imposition of court security fees
and criminal conviction fees on all nine counts. In contrast, appellant maintains
the trial court was authorized to impose court security fees on six counts and
criminal conviction fees on four counts. We therefore examine the propriety of
imposing the fees on all nine counts.
Because section 1465.8, subdivision (a)(1), mandates the imposition of a
court security fee “‘on every conviction for a criminal offense,’” the trial court
correctly imposed that fee on all nine counts (People v. Schoeb (2005) 132
Cal. App. 4th 861, 865-866, italics omitted), including counts 8 through 10, for
which punishment was stayed under section 654 (People v. Crittle (2007) 154
Cal. App. 4th 368, 370). The abstract of judgment thus must be amended to reflect
the imposition of court security fees on each count.
25
We reach the same conclusion regarding the imposition of criminal
conviction fees. Because Government Code section 70373, subdivision (a)(1),
mandates the imposition of that fee “on every conviction for a criminal offense,”
the trial court correctly imposed that fee on all nine counts, including the counts
for which punishment was stayed. (People v. Sencion (2012) 211 Cal. App. 4th
480, 483 (Sencion).) The abstract of judgment thus must be amended to reflect the
imposition of criminal conviction fees on each count.
Pointing to People v. High (2004) 119 Cal. App. 4th 1192 (High), appellant
suggests that criminal conviction fees under Government Code section 70373 may
not be imposed on counts 8 through 10, for which punishment was stayed. He
argues that those counts, which charged appellant with lewd acts upon a minor
(§ 288, subd. (a)), were merely “duplicative” of the offenses of aggravated sexual
assault of a child, as they were predicated on the same misconduct. We disagree.
As explained above, Government Code section 70373, by its plain language,
mandates the imposition of a fee on “every conviction.” Furthermore, the stay of
punishment on counts 8 through 10 pursuant to section 654 does not insulate them
from the application of Government Code section 70373. Generally, section 654
precludes the imposition of only those fees that are punitive in nature. (People v.
Sharret (2011) 191 Cal. App. 4th 859, 865.) It is well established that a criminal
conviction fee under Government Code section 70373 is not punitive. (Sencion,
supra, 211 Cal.App.4th at p. 483.) In High, the appellate court examined a
different statute -- namely, Government Code section 70372 -- and concluded that
the fee imposed under that statute -- which the Legislature expressly designated as
a “state court facilities construction penalty” -- serves a punitive purpose. (High,
supra, 119 Cal.App.4th at pp. 1197-1199.) In sum, the abstract of judgment must
26
be amended to reflect the imposition of court security fees totaling $360 (§
1465.8) and criminal conviction fees totaling $270 (Govt. Code, § 70373).
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract
of judgment to correct the errors identified above (see pt. D, of the Discussion,
ante), and to forward the amended abstract of judgment to the Department of
Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
EPSTEIN, P. J.
COLLINS, J.
27