People v. Quiahua CA2/6

Filed 1/17/23 P. v. Quiahua CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B319239
(Super. Ct. Nos. PA092619,
Plaintiff and Respondent, PA096132)
(Los Angeles County)
v.
JERONIMO QUIAHUA,
Defendant and Appellant.
Jeronimo Quiahua appeals from the judgment after a jury
convicted him of spousal rape (Pen. Code,1 former § 262, subd.
(a)(1); count 1), sodomy (§ 286, subd. (c)(2)(A); count 2), criminal
threats (§ 422, subd. (a); count 3), corporal injury on a spouse
(§ 273.5, subd. (a); count 4), assault with force likely to produce
great bodily injury (§ 245, subd. (a)(4); count 5), lewd acts on a
child (§ 288, subd. (a); count 6), continuous sexual abuse of a child
1 Unlabeled statutory references are to the Penal Code.
(§ 288.5, subd. (a); count 7), and oral copulation or sexual
penetration of a child (§ 288.7, subd. (b); count 8).2 The jury also
found true allegations that Quiahua used a deadly weapon when
committing counts 1 and 2 (§ 12022, subd. (b)(1)) and that he
committed counts 1, 2, 6, and 7 against more than one victim
(§ 667.61, subd. (e)(4)). The trial court sentenced him to 70 years
to life in state prison plus three years eight months.
Quiahua contends his convictions on counts 6, 7, and 8
should be reversed because the trial court erroneously admitted
into evidence photographs that were irrelevant and unduly
prejudicial. We affirm.
FACTUAL AND PROCEDURAL HISTORY3
J.Q. was born in October 2006. Quiahua started molesting
her when she was just three years old. He put his fingers and
penis inside her vagina. When she would scream, he would cover
her mouth and tell her to be quiet. J.Q. did not tell anyone about
Quiahua’s abuse because she did not understand that the conduct
was abnormal.
Over the next nine years, J.Q. endured some form of sexual
abuse “almost every night.” Oftentimes, Quiahua would touch
J.Q.’s vagina with his fingers and then penetrate it with his
penis. On other occasions Quiahua would grab J.Q.’s hand and
2 Quiahua committed counts 1 through 5 against his
now-former wife, R.A., and counts 6 through 8 against his eldest
daughter, J.Q.
3 Because Quiahua only challenges his convictions on
counts 6, 7, and 8, we limit the factual and procedural history to
the evidence related to the crimes committed against J.Q.
2
put it down his pants. He sometimes ejaculated during these
interactions.
J.Q.’s sister, M.Q., once opened the bedroom door and saw
her father having sex with her sister. J.Q. was on her back on
the bed while Quiahua was on top of her, situated between J.Q.’s
legs and moving his body back and forth. J.Q. was crying.
Quiahua told M.Q. to go into the bathroom, where she waited for
10 or 15 minutes.
Another time M.Q. heard J.Q. crying and her parents’ bed
squeaking. She looked over and once again saw J.Q. lying on her
on back with Quiahua on top of her. This time there was a
blanket covering them.
Quiahua said that if J.Q. ever told her mother or anybody
else about his abuse that he would go to jail and never be seen
again. Despite this threat, in middle school J.Q. told a counselor,
R.A., and a friend about Quiahua’s abuse.
Prosecutors charged Quiahua with committing lewd acts on
J.Q. when she was two or three years old, orally copulating or
sexually penetrating her when she was around that age, and
continuously sexually abusing her from ages four to 12. At trial,
they sought to introduce six photographs of J.Q. into evidence:
one depicting her when she was four or five years old, one when
she was eight or nine, one when she was nine or 10, one when she
was 10 or 11, one when she was 11 or 12, and one when she was
around 13.4 During her testimony, J.Q. identified herself in each
photo. She told jurors that each one was taken “during the
4 Thelatter photograph was taken two months after
Quiahua’s arrest. Nothing in the record suggests that J.Q.’s
appearance changed significantly during those two months.
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timeframe that things were going on sexually with [her] father.”
Quiahua did not object to the introduction of any of the photos.
During cross-examination, Quiahua referenced the
photographs several times, noting that J.Q. was “really small” in
some of them and that she had “grown a lot since then.” He also
asked whether J.Q. remembered being three or four years old, as
she was depicted in some of the pictures; J.Q. said that she did.
Prosecutors briefly referenced the photographs in closing
argument, noting they were taken during the timeframe Quiahua
was charged with abusing J.Q. Quiahua also referenced the
photos during his closing, noting that J.Q. had alleged that he
sexually assaulted her almost daily for nearly a decade but none
of the photos showed any injury: “4,000 times and there’s not a
single picture of any injury, trauma, redness. [¶] . . . [¶] No
injuries, no photographs, nothing consistent with what she’s
saying happened. It doesn’t make sense.”
DISCUSSION
Quiahua contends his convictions on counts 6, 7, and 8
should be reversed because the trial court erroneously admitted
into evidence six irrelevant, unduly prejudicial photographs of
J.Q. But Quiahua did not object to the admission of the photos at
trial. His contention is forfeited. (People v. Fayed (2020) 9
Cal.5th 147, 196-197; see Evid. Code, § 353.)
Alternatively, Quiahua contends counsel provided
ineffective assistance by failing to object to the photographs at
trial and forfeiting his challenge to their admission on appeal.
This contention requires him to show, by a preponderance of the
evidence, that counsel performed deficiently and that that
deficient performance resulted in prejudice. (People v. Mai (2013)
57 Cal.4th 986, 1009.) These showings are “particularly difficult”
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to make on direct appeal. (Ibid.) As to the first, we “defer to
counsel’s reasonable tactical decisions” and indulge “a ‘strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.’ [Citation.]” (People v. Lucas
(1995) 12 Cal.4th 415, 436-437.) We will not find deficient
performance unless no conceivable reason for counsel’s actions
appears on the record. (People v. Cunningham (2001) 25 Cal.4th
926, 1003.) As to the second, Quiahua can establish prejudice by
showing “ ‘a probability sufficient to undermine confidence in the
outcome.’ [Citations.]” (Ibid.) He must “prov[e] prejudice as a
‘demonstrable reality,’ not simply speculation as to the effect of
the errors or omissions of counsel. [Citation.]” (People v.
Williams (1988) 44 Cal.3d 883, 937.)
Quiahua fails to make the requisite showings here.
Quiahua fails to show deficient performance because it is
conceivable that counsel did not believe the photographs of J.Q.
were irrelevant or unduly prejudicial and thus did not object. (Cf.
People v. Lucero (2000) 23 Cal.4th 692, 732 [counsel not required
to make meritless objection].) For example, counsel may not have
objected to the photos because he recognized that they were
relevant to showing J.Q.’s size relative to father’s when the
crimes were alleged to have occurred. (Evid. Code, § 210
[evidence is relevant if it has “any tendency in reason to prove or
disprove any disputed fact that is of consequence”].) Or he may
not have objected because he recognized that the photos
“provided jurors with visual information beyond what testimony
could offer.” (People v. Parker (2022) 13 Cal.5th 1, 41; see also
People v. Michaels (2002) 28 Cal.4th 486, 532 [noting that photos
are not unduly prejudicial if they assist jurors in understanding
witness testimony].) It is also conceivable that counsel may not
5
have objected because he wanted to use the photos to attack
J.Q.’s credibility: During cross-examination, he asked J.Q.
whether she remembered being the ages of when she was
depicted in the photos. And during closing argument, he noted
that none of photos showed any injury to J.Q., despite the daily
abuse she said she was enduring at that time. (Cf. People v.
Ledesma (2006) 39 Cal.4th 641, 748 [no deficient performance
where evidence of “obvious benefit” to defense]; People v.
Hart (1999) 20 Cal.4th 546, 633 [no deficient performance where
counsel’s actions “cast doubt” on prosecution case].) Thus, on this
record, we cannot say that Quiahua has shown that counsel did
not have a tactical reason not to object to the challenged photos.
Even if he had, however, Quiahua has failed to show a
reasonable probability that the outcome of trial would have been
different if the photographs of J.Q. were not admitted. The
photos depicted J.Q. in her soccer uniform, with her siblings, and
at a school graduation. Such “ordinary” photos are unlikely to
elicit sympathy or have a prejudicial impact. (People v. Suff
(2014) 58 Cal.4th 1013, 1072.) In contrast, the evidence of
Quiahua’s molestation was significant: J.Q. testified about it,
citing specific incidents and providing relevant details of
Quiahua’s abuse. M.Q. then corroborated J.Q.’s testimony,
detailing two incidents in which she witnessed her father having
sex with her sister. Such evidence, when considered alongside the
negligible prejudicial impact of the photos, does not undermine
our confidence in the outcome of trial. Quiahua’s ineffective-
assistance-of-counsel claim accordingly fails.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Michael Terrell, Judge
Superior Court County of Los Angeles
______________________________
Olivia Meme, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kenneth C. Byrne and Blake Armstrong,
Deputy Attorneys General, for Plaintiff and Respondent.