People v. Beltran CA2/8

Filed 12/16/20 P. v. Beltran CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B302561
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA144847)
v.
JULIO BELTRAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Connie R. Quinones, Judge. Affirmed.
Vanessa Place, under appointment by the Court of Appeal,
for Plaintiff and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Jonathan J. Kline and Kristen J. Inberg,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Appellant Julio Beltran was convicted of four sexual
offenses involving a neighbor’s child, Wendy Q., when she was
10 years old or younger: two counts of sexual intercourse or
sodomy (Pen. Code, § 288.7, subd. (a));1 one count of forcible lewd
acts (§ 288, subd. (b)(1)); and one count of oral copulation or
sexual penetration (§ 288.7, subd. (b)). The trial court sentenced
appellant to 73 years in state prison. Appellant appeals from the
judgment of conviction, contending the trial court erred in
denying his motion to dismiss the venire after prospective jurors
learned he was represented by a public defender; abused its
discretion in admitting photos of the victim’s wrists showing a
suicide attempt; and erred in failing to give a curative
admonition or grant a mistrial after a law enforcement witness,
holding the hand of her young child, walked past jurors outside
the courtroom. We affirm the judgment of conviction.
BACKGROUND
When Wendy Q. was about six or seven years old,
appellant’s wife Elizabeth Ortiz began babysitting her. Ortiz,
appellant and their children lived on Elm Street, across the street
from Wendy and her family. Wendy’s mother dropped her off
about 7:00 a.m. and picked her up about 4:30 p.m. During the
school year, Ortiz watched Wendy before school, took her to
school, picked her up, and watched her until her mother came
home. During the summer, Ortiz watched Wendy all day. On
occasion, Ortiz watched Wendy on a Saturday.
According to Wendy, appellant was sometimes in the house
while Ortiz was watching her. Ortiz would occasionally leave
1 Further undesignated statutory references are to the Penal
Code.
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Wendy and her children with appellant while Ortiz ran errands.
Wendy usually went to Ortiz’s bedroom to watch her drive away.
On one occasion, appellant followed her into the bedroom, and
sexually assaulted her by pressing his penis into her vagina. She
told him to stop but he did not. He said if she screamed he would
hurt her parents. It was painful. When appellant stopped,
Wendy went to the bathroom and saw a white liquid substance on
her vagina, along with drops of blood.
Wendy’s mother later saw the blood on Wendy’s underwear,
and asked her if she had fallen or someone had touched her.
Wendy was scared and said nothing had happened.
When Wendy was eight years old, appellant and Ortiz
moved to Cudahy. Ortiz continued to babysit Wendy for some
period of time. Wendy testified that on one occasion appellant
forced her to watch a pornographic video while he tried to insert
his penis into her vagina. Ortiz came home and he stopped. On
another occasion, appellant pulled Wendy onto his lap and she
could feel his penis pressing into her thigh. She scratched his
arm and he let her go. Wendy testified at trial that appellant
touched her sexually a total of four times.
In 2017, Wendy eventually told her mother about
appellant’s sexual assaults after she viewed a religious video.
She said that she could not stand it anymore and wanted to
commit suicide. In October 2017, Wendy and her parents went to
a Los Angeles County Sheriff’s Department (LASD) station and
reported the abuse.
In November 2017, Wendy was interviewed by LASD
Detective Tim Abrahams. Wendy stated appellant had sexually
abused her six times in the first house and once in the Cudahy
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house. She specifically described the three incidents set forth
above in some detail.
In December 2017, Wendy was examined by sexual assault
nurse examiner Malinda Wheeler. Wheeler found clefts and
transections in Wendy’s vagina, which were an indication of past
penetrating trauma. Wendy’s physical condition was consistent
with her account of sexual abuse.
In his defense, appellant called LASD Deputy Danielle
Leos, who had interviewed Wendy when she first came to the
sheriff’s station. Wendy told the deputy that the abuse occurred
when she was in the first grade; during the summer of 2010;
between October and December 2010; and when she was eight
years old. Wendy’s mother told the deputy that Wendy’s behavior
had changed about two years ago. Then, during a conversation
about her bad grades, Wendy stated she had been sexually
abused. She tried to commit suicide.
Appellant also called social worker Sergio Castellanos.
Deputy Leos had spoken with the social worker about Wendy.
Castellanos wrote in a report that Leos told him Wendy gave
inconsistent accounts of her sexual abuse, stated that her abuser
touched her under her clothing, and had first disclosed the abuse
to her father’s girlfriend from Canada. Deputy Leos clarified at
trial that these facts were from another case she was working on
at the same time as Wendy’s case. Wendy never said she
revealed her abuse to her father’s girlfriend from Canada.
Ortiz testified on appellant’s behalf that he worked full
time at a Circle K convenience store when they lived on Elm
Street. His hours were 7:00 a.m. to 4:00 or 4:30 p.m. Ortiz never
left Wendy at the house while she ran errands. Ortiz only
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babysat Wendy for two or three months after Ortiz and her
family moved to Cudahy.
Matthew Webb testified that from 2010 to 2012, appellant
worked at the Circle K owned by Webb’s family. His hours were
7:00 a.m. to about 4:00 p.m. on weekdays and a half day on
Saturdays. Appellant was an exemplary employee and Webb
could not recall a time when appellant asked to leave work early.
DISCUSSION
1. Appellant Was Not Prejudiced by the Disclosure That His
Attorney Was a Public Defender.
During voir dire, prospective Juror No. 6 stated he was
employed by the public defender’s office. In the course of
questioning Juror No. 6 about his employment, the prosecutor
revealed that appellant’s counsel was a public defender. At a
sidebar, appellant’s counsel objected, noting that he had not
identified himself as a public defender, and this was a matter of
policy and strategy. The trial court agreed the prosecutor’s
disclosure was “highly inappropriate” but found appellant was
not prejudiced by the revelation. The trial court questioned Juror
No. 6 briefly in front of the other prospective jurors, to make clear
that Juror No. 6 did not know appellant’s counsel and had never
interacted with him in any way whatsoever. The trial court then
excused the juror. The court denied appellant’s subsequent
request for a curative admonition or for dismissal of the entire
venire, again finding there was no prejudice to appellant.
Appellant contends the trial court violated his
constitutional right to trial by a fair and impartial jury when it
refused to dismiss the venire. We agree the remark was
inappropriate, but see no abuse of discretion in the trial court’s
determination that the remark was not prejudicial.
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Both the federal and state Constitutions guarantee a
criminal defendant the right to a trial by a fair and impartial
jury. (U.S. Const., 6th & 14th Amends; Cal. Const., art. I, § 16;
People v. Wheeler (1978) 22 Cal.3d 258, 265; People v. Martinez
(1991) 228 Cal.App.3d 1456, 1460 (Martinez).) The trial court is
charged with examining prospective jurors to determine whether
bias or prejudice exists; the prosecutor and defense counsel may
also examine the jurors. (People v. Castillo (2008)
168 Cal.App.4th 364, 385.)
A trial court has broad discretion to determine whether
possible prejudice against a defendant has “contaminated the
entire venire to such an extreme” that discharge of the venire is
necessary. (People v. Medina (1990) 51 Cal.3d 870, 889.) A trial
court’s ruling on a motion to discharge the entire venire will be
affirmed unless there is a clear abuse of discretion. (Martinez,
supra, 228 Cal.App.3d at pp. 1466–1467.)
“[A]s a general matter, it is unlikely that errors or
misconduct occurring during voir dire questioning will unduly
influence the jury’s verdict in the case. Any such errors or
misconduct ‘prior to the presentation of argument or evidence,
obviously reach the jury panel at a much less critical phase of the
proceedings, before its attention has even begun to focus upon the
penalty issue confronting it.’ ” (People v. Medina (1995)
11 Cal.4th 694, 741.) Appellant has not cited, and we are not
aware of, any cases finding prejudice from the disclosure that a
defendant was represented by a public defender.
Here, appellant’s counsel objected to the disclosure of his
status as a public defender primarily on the ground that it would
indicate to prospective jurors that appellant was “indigent” and
that studies have shown that there is an “inherent bias” against
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indigent people. He later added that it “infuriates” people that
their taxes are paying for a defendant’s attorney. He also argued
that this prejudice was exacerbated by appellant’s use of a
Spanish translator, which itself might cause prospective jurors to
speculate that appellant was undocumented. Appellant echoes
these arguments on appeal.
There are no studies in the record showing people are
inherently biased against “indigent” people, and thus no
indication of what that concept means.2 There is also nothing to
establish that people have any specific belief about how poor a
criminal defendant must be before a public defender is appointed.
In popular culture, criminal defendants are simply advised that if
they cannot afford an attorney, one will be appointed for them.
That does not imply indigence.
Even assuming for the sake of argument that some people
have a bias against indigent people and believe a criminal
defendant must be “indigent” if he has a public defender, the
prospective jurors in this case were destined to learn of
appellant’s approximate level of monetary worth through the
evidence in this case. Appellant’s alibi was that he worked every
weekday at a Circle K convenience store. Appellant’s longtime
employer testified and described him as an exemplary employee
who never asked to leave early. Thus, the evidence would show
that appellant was employed fulltime and possessed a good work
ethic. On this record, there is no reasonable probability or
2 Appellant has cited a number of studies on appeal. They
are not found in the trial court record and would not be an
appropriate subject of judicial notice (which in any event
appellant did not seek). We disregard those studies and
argument based on them.
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possibility that the disclosure that appellant had a public
defender would have caused the jury to view him negatively
because of his income level.
The second possible harm from the public defender
disclosure was in fact identified by the trial court, who stated
there is a “negative connotation that the public in general and
jurors have of public defenders.” The court explained: “I was a
public defender. They are some of the greatest lawyers you will
ever run across. Not everybody shares that view.” The trial
court, however, declined to dismiss the venire because “I think
that you have carried yourself very well in this trial. I don’t
think this is going to have any negative connotation.” The trial
court was in the best position to observe the prospective jurors’
attitudes towards appellant’s counsel and to notice any change in
demeanor or reaction when it was revealed he was a public
defender. It was also reasonable for the court to conclude that
because appellant’s counsel was doing very well in the voir dire
proceedings, jurors would not view him as a substandard
attorney.
More broadly, the trial court had the opportunity to observe
the prospective jurors’ reactions a second time, when the court
questioned Juror No. 6 about his work in the public defender’s
office and then excused him. Following that interaction, the trial
court again found no prejudice to appellant. The reasonableness
of the court’s two determinations of no prejudice is supported by
the remainder of voir dire, which continued after Juror No. 6 was
excused.
Although the trial court did not question the prospective
jurors about their feelings about appellant being represented by a
public defender, the trial court repeatedly emphasized that jurors
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should be “fair, unbiased and unprejudiced” and should base
their decision on the evidence and follow the court’s rulings and
instructions. The court asked the jurors to disclose if they “might
be bias[ed] or prejudice[d] in any way” or if they could not be “fair
and impartial.” The court explained that the jurors had a duty to
make such disclosure “even if you are not asked . . . we expect you
to tell us if it is something that is going to impact your ability to
be fair and impartial.” None of the prospective jurors disclosed
any relevant bias or prejudice.
2. The Photograph of the Victim’s Cut Wrists Was Never
Admitted into Evidence.
In his Opening Brief, appellant contended that the trial
court abused its discretion in admitting a photograph of the
victim’s cut wrists. The photograph was taken by Detective
Abrahams when he conducted a follow-up interview with the
victim in January 2019, after learning that the victim had
attempted suicide. After respondent pointed out that appellant
had overlooked the trial court’s subsequent ruling excluding the
photograph, appellant contended that the photograph, “while not
referenced further, was apparently admitted into evidence
insofar as People’s Exhibits 1 through 6 were moved into
evidence (CT 131; RT 4:1916).” We read the record differently.
It appears that although the wrist photograph was referred
to as Exhibit 4, it was never formally marked. The court’s
rulings concerning the photograph occurred on June 19, but the
index to the reporter’s transcript does not show that an Exhibit 4
was marked on that date. The index does show a photograph
being marked as Exhibit 4 on June 20 at page 1835, as well as a
disk being marked as Exhibit 5. The index shows both exhibits
being admitted into evidence at page 1917. Page 1835 involves
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the direct examination of Nurse Wheeler. During this
examination, the prosecutor stated: “I have a single sheet of
paper that’s going to be People’s Exhibit--.” The court interjected
“4.” The prosecutor stated that it was a photograph, and the
record shows that the paper was marked as People’s Exhibit 4.
The prosecutor then asked Nurse Wheeler: “And is this a picture
of [the victim] on the day of your examination?” The nurse
replied: “Yes.” The court replied: “So the disk itself will be
marked People’s 5.” The prosecutor repeated: “People’s 5 for the
disk, and 4 would be the photo.” The court agreed.
Thus, it is clear that the Exhibit 4 which was admitted into
evidence was a photograph of the victim during her sexual
assault examination at a hospital in December 2017, not a
photograph of the victim’s cut wrists taken during a January
2019 police interview. The 2019 wrist photograph was not
admitted at trial.
3. Appellant Has Forfeited His Spectator Misconduct Claim.
When Deputy Leos told the court she had childcare issues
on one of the days she was scheduled to testify, the court
suggested the deputy bring the child to court and have her wait
in the jury room while the deputy testified. Although Deputy
Leos called as a defense witness, the prosecutor agreed to provide
someone to sit with the child. On June 21, Deputy Leos came to
court with her three-year-old daughter, walked by five jurors
sitting in the hallway outside the courtroom, and entered the
courtroom. No juror saw the child after that.
Appellant contends Deputy Leos’s act of walking past the
jurors with her child was prejudicial spectator misconduct. He
contends that at a minimum the trial court erred in failing to
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instruct the jury not to consider the presence of the child in the
hallway.
Although appellant brought the out-of-court conduct to the
court’s attention, he did not request a curative admonition to the
jury. We question whether the described act would in any way
have caused jurors to find the deputy more sympathetic or
credible, or to speculate that the child with the deputy was also a
victim. If so, an admonition would have been sufficient to cure
any possible harm. Thus, appellant has forfeited this claim.
(People v. Trinh (2014) 59 Cal.4th 216, 250; People v. Chatman
(2006) 38 Cal.4th 344, 368.) Similarly, to the extent appellant
contends a mistrial was warranted, he has forfeited this claim by
failing to move for a mistrial. (People v. Carrasco (2014)
59 Cal.4th 924, 965.)
Further, even assuming for the sake of argument that the
claim had not been forfeited, the jurors were instructed not to let
sympathy or bias towards witnesses influence their decision.
Jurors were also instructed that their verdicts “must be based
only on the evidence presented during trial in this court” and
they “must not allow anything that happens outside of the
courtroom to affect [their] decision.” Jurors are presumed to
understand and follow their instructions. (People v. Sanchez
(2001) 26 Cal.4th 834, 852.) Appellant has not rebutted this
presumption.
4. There Is No Cumulative Error.
Appellant contends that even if the errors in this case are
not prejudicial when considered individually, the cumulative
effect of the errors is prejudicial. We have found no errors to
cumulate.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
BIGELOW, P. J.
GRIMES, J.
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