People v. Rios CA2/8

Filed 3/16/21 P. v. Rios CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B300941
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA091352)
v.
CESAR FERNANDO RIOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Cynthia L. Ulfig, Judge. Affirmed.
Ambrosio E. Rodriguez for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and Gary A. Lieberman, Deputy
Attorney General, for Plaintiff and Respondent.
____________________
A jury convicted Cesar Fernando Rios of several sex crimes
for molesting his stepdaughter for several years starting when
she was 11. Rios maintains we should overturn his convictions
because the trial court should have allowed him to explore his
stepdaughter’s immigration status before the jury. He also
claims ineffective assistance of counsel. We affirm the judgment
because Rios’s contentions lack merit.
I
We recount the trial testimony, omitting the family
members’ names to protect the victim’s anonymity. (Cal. Rules of
Court, rule 8.90(b)(4) & (11).)
Rios’s stepdaughter testified first. She came to the United
States from El Salvador in 2008 when she was 10 years old and
moved into a house in Sun Valley, California with her mother,
her younger sister, and Rios. Rios was her mother’s boyfriend,
and the couple was pregnant with a son around this time. The
stepdaughter met Rios when she moved in with him.
The stepdaughter described how Rios began molesting her.
When she was 11 years old, Rios put his hand under her bra and
touched her breast. She had been massaging Rios in their living
room. Rios “always asked” for a massage. When Rios touched
her breast, she did nothing and “[p]retended like it wasn’t
happening.”
The next day, in Rios’s truck, he put his fingers in her
vagina. Rios rubbed her thigh and said, “ ‘When you’re a little
girl you didn’t feel anything. Now that you’re older, you’re
starting to feel things. You feel tickles.’ ” Rios instructed his
stepdaughter to tell no one. She obeyed.
After this incident, the family moved to a two-bedroom
apartment in Panorama City. Later, they moved to another two-
2
bedroom apartment. In these apartments, Rios, the mother, and
their son shared one bedroom; the stepdaughter and her sister
shared the other.
Rios’s touching continued at the apartments. The
stepdaughter testified he touched her vagina and breasts. Then
she began touching Rios—“[h]is penis, his chest, everywhere.”
This happened often, when her mother was not around.
The touching led to oral sex when the stepdaughter was
still 11 years old. She testified Rios “put his penis on my mouth
and then we did that for a bit.” This happened more than twice.
Rios grew bored with oral sex and asked if he could “put it
in.” When his stepdaughter was 12 years old, Rios had sexual
intercourse with her in his bedroom. She knew she was 12 when
it happened because “I told myself that I couldn’t believe that is
how I lost my virginity and I didn’t do anything about it.” She
was mad at herself for allowing it to happen.
The sex became frequent and stayed that way until the
stepdaughter was 16 years old. She testified it happened almost
every weekend, when her mother worked and Rios remained
home with the children. Her mother worked weekend evenings
from around 9:00 p.m. to 2:00 a.m.
The stepdaughter would dress differently—“more
provocative, more sexually”—for Rios when her mother was at
work. And he would make her take a shower before sex.
Sometimes he would ejaculate inside her vagina and sometimes
outside it. Rios would give her a pill so she would not get
pregnant.
As she got older, Rios would only let her go out if she had
sex with him.
3
At some point, they started having anal sex. This
happened more than twice.
The sex happened in Rios’s bedroom. Early on, Rios’s son
would be asleep in the room, and the bedroom door would remain
open. Then they started locking the door. The sister would
knock, but they would not open it. Later on, the stepdaughter
would give her sister a phone to keep her busy. Her sister is four
years younger.
The stepdaughter came close to telling her sister what was
happening at least twice. The girls would talk privately in their
bedroom closet. The stepdaughter told her sister she had a “big
secret” that would “destroy the whole family.” She never
revealed the secret. Rios warned if she told anyone what was
happening, he would take her brother away and blame her.
In 2014, when the stepdaughter was 16 years old, she
moved to Denver to get her diploma; she had dropped out of high
school in Los Angeles. She would be at school for three months,
come home for one month, and then go back to school again. Rios
continued to have sex with her when she returned home. She
was 17 years old the last time they had sex.
While away at school, the stepdaughter wrote a poem about
her life that “triggered” her and prompted her to tell a school
counselor of Rios’s abuse. She was 18 years old at the time. The
counselor notified the police.
The stepdaughter did not want to call the police because
she loved Rios and did not want to destroy her family. She felt
she was in a relationship with him. Rios would tell her they
would go away together once she turned 18.
The sister testified next. Her testimony corroborated the
stepdaughter’s testimony.
4
She remembered her sister and Rios would go into his
bedroom almost every weekend and lock her out. She
unsuccessfully would try to open the door. She did not know why
they kept her out of the room and thought they did not like her.
Rios was “never gone” on weekends. But her mother
worked weekends, leaving around 8:00 or 9:00 p.m. and returning
around 1:00 or 2:00 a.m. Her mother went back to work within a
few months of giving birth to her brother. She remembered her
sister would dress differently after her mother left for work.
A couple times, while talking in their closet, her sister
mentioned she had a secret that would break up their family.
She never learned the secret.
The sister testified Rios punished her brutally. He would
shave her eyebrows, cut her hair, make her wear dirty clothes to
school, and make her sleep outside in a shed. Rios never did
anything like this to her sister.
The People rested after the sister testified, and defense
counsel orally moved to dismiss the case for lack of evidence. The
trial judge denied the motion, commenting she “must have seen a
different trial” because she found both girls credible.
The defense then called the apartment managers for the
family’s two apartments. One manager testified she frequently
looked for Rios at his apartment because he was behind with
rent, but she “could almost not find him because he was
working.” She almost never saw him on the security camera, and
his car almost never was there.
The manager for the second apartment complex testified
Rios lived there with his wife, one daughter, and one son. It
appeared to her the other daughter (the stepdaughter) moved in
close to a year later.
5
Rios’s boss testified next. He employed Rios as an
independent contractor from at least 2009 to 2014, first
repainting and refurbishing Chase banks throughout California
and then doing other construction work. He estimated that, in a
typical month between 2009 and 2012, Rios would be out of town
working at least 18 to 20 days, mostly on weekends when the
banks were closed. Rios continued to do work for him on nights
and weekends between 2012 and 2014. He estimated Rios was
out of town working at least 250 nights of the year in both 2012
and 2013. He conceded he was not always on site with Rios. He
and Rios still worked together and were friendly at the time of
trial.
The boss testified Rios should have tax returns showing the
time he worked. He had emails indicating where Rios was
supposed to work but nothing detailing where Rios actually was
working.
Rios was the last defense witness. He denied having sex
with his stepdaughter. On cross-examination, he admitted
telling police she would massage him—his arms, shoulder, and
legs from the knee down. He later admitted telling police his
stepdaughter snuck into his room while he was asleep and
massaged his penis. This happened four times.
Rios told the police his stepdaughter exposed her breasts
and vagina to him when she was under the influence of alcohol
and drugs. He told them she was trying to seduce him and made
him uncomfortable. He said she was the one asking to run away
with him when she turned 18. (The stepdaughter later returned
to the stand to deny this claim.)
Rios testified his wife did not work for four and a half or
five years after their son was born in 2009. He denied ever being
6
home with the kids without her. He maintained he was out of
town a lot for work between 2009 and 2014 and frequently
worked weekends and nights. Rios estimated he slept away from
home three weeks of every month from 2010 to 2013. But on
cross-examination, Rios admitted he told police his work was
slow for several years, as everything in construction “was going
down.”
Rios denied punishing the younger sister as she described.
He tried to paint the stepdaughter as a disobedient, out-of-
control teen. He claimed she ran away from home in 2012 for six
to eight months. (The stepdaughter testified she ran away for
about a week when she was 15.) Rios testified that, after she
started school in Colorado, he told her she could not come home;
he claimed she endangered the family when she brought home a
drunk male. Rios implied his stepdaughter retaliated by going to
the police with allegations of sexual abuse.
The People called two detectives as rebuttal witnesses to
clarify statements the stepdaughter made to police about Rios,
why it took so long to arrest Rios after the stepdaughter reported
the crimes, and what Rios told police in jail. The detective who
interviewed Rios said Rios assumed his stepdaughter was the one
accusing him of sexual abuse. Rios said she was “super obsessed”
with him; she would put on his wife’s clothing when his wife was
at work to “provoke” him; and he was aroused when she snuck
into his room and touched his penis, but he did not have sex with
her. Rios never told the detective about being gone a lot between
2009 and 2014, and he implied the opposite by insisting he had
sex with his wife about once a week. He told the detective his
wife worked a couple nights a week; he would stay home with the
7
kids then. Work was scarce for him for about five years around
the time of his son’s birth.
The jury returned a verdict in about an hour. It convicted
Rios of three counts of committing a lewd act on a child (Pen.
Code, § 288, subds. (a) & (c)(1)), and one count of continuous
sexual abuse (id. § 288.5, subd. (a)).
The trial court sentenced Rios to a total term of 19 years,
four months in state prison.
II
On appeal, Rios contends the trial court abused its
discretion and violated his constitutional rights in prohibiting his
counsel from inquiring into the victim’s immigration status. Rios
also claims he received ineffective assistance of counsel. We
reject each contention.
A
Rios argues the trial court should have let his counsel
explore on cross-examination whether the possibility of obtaining
immigration benefits through the U visa process provided the
stepdaughter a motive to lie. He claims the court erroneously
prevented him from establishing a full picture of the victim’s
potential motives and biases in a case that hinged on her
credibility.
The court’s ruling was proper, as counsel offered only
speculation to justify this invasive questioning.
At trial, outside the jury’s presence, the deputy district
attorney told the court she anticipated defense counsel would
raise the issue of the stepdaughter’s immigration status and
asked the court to exclude it. The attorney believed the girl
would voluntarily testify she came from El Salvador, as this fact
anchored when she met Rios.
8
Defense counsel responded he might inquire about this
issue and argued as follows, with our emphasis:
“[I]t might be motivation for her to fabricate.
It is my belief and I’m informed that she is in the
country illegally. That in and of itself doesn’t have
any relevance in this trial, however, if that caused her
to fabricate in any way, then I believed that would be
relevant in this trial.
Being the victim of a crime could be grounds to
get a new visa. I don’t know if that happened in this
case. I think that it is a fair area of inquiry and with
the election of President Trump and changes in
immigration policy, someone who is here unlawfully
might have serious motivation to—motivation to lie
about being the victim of a crime for purposes of
gaining lawful status or residency here.”
While unclear, it appears counsel was arguing he should be
allowed to explore whether the stepdaughter had a motive to
incriminate Rios to obtain favorable immigration treatment
through the U visa program. The U visa is a “temporary
nonimmigrant visa created by Congress to provide legal status
for noncitizens who assist in the investigation of serious crimes in
which they have been victimized.” (People v. Morales (2018) 25
Cal.App.5th 502, 506; see also 8 C.F.R. § 214.14 (2020)
[describing U visa requirements].)
The trial court ruled counsel could not inquire as to the
immigration status of the alleged victim or any witness, as such
an inquiry was irrelevant and more prejudicial than probative.
However, the court would permit questioning concerning when
and from where the victim came to the United States.
9
The trial court’s ruling was not an abuse of discretion.
Defendants generally are entitled to explore a witness’s
bias, including whether the witness has been offered an
inducement or expects a benefit for testimony. (People v. Pearson
(2013) 56 Cal.4th 393, 455 (Pearson).) But a defendant’s right to
cross-examine is not absolute. (Ibid.)
Some statutes require the exclusion of certain
impeachment evidence. (See Evid. Code, § 780, italics added
[“Except as otherwise provided by statute, the court or jury may
consider in determining the credibility of a witness any matter
that has any tendency in reason to prove or disprove the
truthfulness of his testimony at the hearing, . . .”].) And trial
courts have substantial discretion to exclude collateral evidence
offered to attack witness credibility. (People v. Thornton (2007)
41 Cal.4th 391, 428.) We review such rulings for abuse of
discretion. (Ibid.)
We assume counsel’s requested inquiry into the
stepdaughter’s immigration status was relevant. But two
statutes convince us the trial court did not err in precluding this
inquiry: Evidence Code sections 352 and 351.4. Under section
352, the trial court has discretion to exclude evidence that may
involve undue prejudice, confusion, or time.
Section 351.4, which became effective more than a year
before Rios’s June 2019 trial, prohibits the disclosure of a
person’s immigration status in open court unless the party
seeking disclosure requests an in camera hearing and the judge
determines the evidence is admissible. The legislature thus
recognized the prejudicial nature of the inquiry Rios sought here.
Courts appreciate the danger as well. (See, e.g., Velasquez v.
Centrome, Inc. (2015) 233 Cal.App.4th 1191, 1213 [listing
10
California and out-of-state cases recognizing “the strong danger
of prejudice attendant with the disclosure of a party’s status as
an undocumented immigrant”].)
Here, Rios’s trial counsel conceded the stepdaughter’s
immigration status was a collateral matter that “in and of itself
doesn’t have any relevance in this trial.” Counsel then
speculated the stepdaughter could have a reason to lie based on
his understanding of her status, the potential for a new visa, and
today’s political climate. Counsel did not request an in camera
hearing to present evidence and made no offer of proof supporting
this theory. He identified no evidence of the stepdaughter’s
status, no evidence she sought any benefit associated with the
U visa program, and no evidence she was aware of the program.
Only speculation supported Rios’s bid to suggest to the jury
potentially available benefits of a U visa provided his
stepdaughter a motive to fabricate years of sexual assault at his
hands. The trial court’s ruling was reasonable and proper. (See
People v. Villa (2020) 55 Cal.App.5th 1042, 1053–1054 (Villa)
[recognizing the danger that jurors who learn of a victim’s
undocumented status would view the victim unfavorably or
oppose convicting if they thought it was tantamount to granting
the victim permanent status].)
The risk of undue consumption of time buttressed the
court’s ruling. (See Villa, supra, 55 Cal.App.5th at p. 1053 [once
raised, the parties would need to educate the jurors about the
U visa program through expert testimony and may put on
additional witnesses to testify regarding when and what the
victim learned about the program and the status of any
application].)
11
Rios cites cases in which courts approved questioning on
this issue, including an unpublished case, which violates the
Rules of Court. (Cal. Rules of Court, rule 8.1115.) But neither
this case nor the others support Rios’s position, as in each case
there was an offer of proof the witness had asked about or applied
for a U visa before trial or knew the impact of her testimony on a
family member’s pending U visa application. (See People v.
Hernandez (Aug. 6, 2019, G056051) [nonpub. opn.]; Romero-Perez
v. Commonwealth (Ky.Ct.App. 2016) 492 S.W.3d 902, 904, 906;
State v. Del Real-Galvez (Or.Ct.App. 2015) 346 P.3d 1289, 1291–
1293.)
The trial court properly prevented defense counsel from
pursuing this speculative line of inquiry before the jury.
B
In one sentence of his opening brief, Rios asserts the court’s
ruling also violated his constitutional rights. This inadequate
presentation forfeits this argument.
Moreover, the argument is invalid on the merits. A
criminal defendant’s right to confront witnesses is not absolute
and may bow to other legitimate interests, including Evidence
Code section 352 concerns. (People v. Brown (2003) 31 Cal.4th
518, 538, 545.) As explained above, the trial court acted within
its discretion in precluding any inquiry into the stepdaughter’s
immigration status under this provision.
Additionally, in light of the inadequate offer of proof at
trial, Rios failed to establish the prohibited examination would
have produced a significantly different impression of the
stepdaughter’s credibility. (See Pearson, supra, 56 Cal.4th at pp.
455–456.)
12
The trial court’s ruling regarding the stepdaughter’s
immigration status did not violate Rios’s constitutional rights.
C
Turning his attack to his trial counsel, Rios argues counsel
was ineffective in failing to investigate the stepdaughter’s
immigration status, failing to obtain documents corroborating
Rios’s testimony, and failing to call a crucial witness—the
stepdaughter’s mother.
Rios did not demonstrate his trial counsel’s representation
was deficient.
To establish ineffectiveness, a defendant must show
counsel’s efforts fell below an objective standard of
reasonableness and the deficient performance prejudiced the
defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687–
688.) In reviewing ineffective assistance claims, we defer to
counsel’s reasonable tactical decisions and presume counsel acted
within the wide range of reasonable professional assistance.
(People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).)
Typically, claims of ineffective assistance are more
appropriately raised in habeas corpus proceedings. (Mai, supra,
57 Cal.4th at p. 1009.) On direct appeal, we reverse a conviction
only if (1) the record shows counsel had no rational tactical
purpose for the challenged act or omission, (2) counsel was asked
for a reason and failed to provide one, or (3) no satisfactory
explanation could exist. (Ibid.)
As explained below, Rios has established no basis for
reversal.
1
On the immigration issue, Rios says nothing shows his trial
counsel inquired regarding the stepdaughter’s immigration
13
status before trial. But the record does not establish what steps
counsel took or failed to take to investigate the matter. It is
Rios’s burden to establish deficient performance. He has failed.
The record does show counsel investigated enough to form a
belief as to the stepdaughter’s status and had pursued this issue
with the prosecution before trial, as the deputy district attorney
signaled to the trial court.
2
On the issue of corroborating documentation, Rios
complains his trial counsel should have obtained work-related
documents to bolster Rios’s testimony. But the record does not
disclose whether counsel tried to get such documentation or
whether it was accessible. We have no information about
counsel’s investigative steps.
Nor does the record disclose whether the documentation
would have supported Rios and his boss’s accounts of Rios’s work
history. A logical explanation is it did not. (See People v.
Jimenez (1992) 8 Cal.App.4th 391, 397–398 [record did not
disclose why defense counsel did not offer certain evidence, but
the logical explanation is there was no exculpatory evidence to
present].) Further, Rios’s boss admitted he had nothing showing
where Rios actually worked, so obtaining the boss’s emails would
have been little help to Rios.
Rios briefly mentions the stepdaughter’s medical records
and argues counsel could have used these to show the girl never
reported the abuse to her doctor. The stepdaughter testified she
did not tell anyone about the abuse before telling her school
counselor. This investigation could only have confirmed the
prosecution’s case.
3
14
Regarding counsel’s failure to call the stepdaughter’s
mother to testify, the record discloses both a tactical purpose and
a satisfactory explanation for this decision. During closing
argument, defense counsel tried to sow doubt about the People’s
case by emphasizing the People did not call the mother to testify
when she worked. Counsel’s belief that the mother’s absence
from trial favored the defense was not unreasonable, as one
might expect a mother to side with her daughters over an ex-
partner who allegedly sexually abused one of the daughters.
Rios assumes his trial counsel failed to investigate this
witness. But nothing in the record shows counsel failed to
contact, interview, or investigate the mother. This case is unlike
People v. Bess (1984) 153 Cal.App.3d 1053, on which Rios relies,
where the record disclosed helpful eyewitnesses to a robbery were
willing to be interviewed by the defense but were neither
interviewed nor called at trial. (Id. at pp. 1059–1060.)
Rios also assumes the mother’s testimony about when she
worked would align with his testimony and not the daughters’
testimony. But there is nothing in the record to suggest her
testimony would have been exculpatory. We may not assume
from a silent record that a witness was “ready, willing and able to
give mitigating testimony, nor can we speculate concerning the
probable content or substance of such testimony.” (People v.
Medina (1995) 11 Cal.4th 694, 773.)
4
Rios argues his counsel had a duty to undermine the
stepdaughter’s credibility and implies counsel shirked this duty.
But both Rios and his trial counsel attacked her testimony and
credibility from all angles.
15
Several times at trial, in response to his counsel’s
questioning, Rios said his stepdaughter’s testimony was
untruthful.
When cross-examining the stepdaughter, counsel tried to
undermine her memory of when she moved in with Rios, when
her mother was pregnant, when her mother went back to work,
and when Rios was home.
Counsel also tried to suggest the stepdaughter embellished
her trial testimony by repeatedly noting she testified about
things she never told police when interviewed closer in time to
the alleged abuse.
Counsel called four witnesses to contradict her.
Despite counsel’s continual efforts, both the trial court and
the jury found credible the testimony of the stepdaughter and her
sister.
Rios has not demonstrated his trial counsel was ineffective.
DISPOSITION
We affirm the judgment.
WILEY, J.
We concur:
GRIMES, Acting P. J. STRATTON, J.
16