Opinion
D069505
03-10-2017
THE PEOPLE, Plaintiff and Respondent, v. CARLOS AMEZCUA, Defendant and Appellant.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD258616) APPEAL from a judgment of the Superior Court of San Diego County, David M. Rubin, Judge. Affirmed. Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
In a case involving the molestation of two different victims, a jury found Carlos Amezcua guilty of six counts of lewd and lascivious acts on a child under age 14. (Pen. Code, § 288, subd. (a).) The trial court sentenced Amezcua to prison for a term of 45 years to life.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Amezcua contends (1) insufficient evidence supports the convictions for counts 7, 9 and 10 based on the corpus delicti rule because Amezcua's extra-judicial statements provided the sole evidence to support those convictions; (2) insufficient evidence supports the convictions for counts 6, 7, 9 and 10 because he did not act with the intent of arousing, appealing to or gratifying the lust, passions or sexual desires of himself or the victim; and (3) the prosecutor committed prejudicial misconduct during closing argument when describing the corpus delicti rule.
We conclude that, based on the application of the corpus delicti rule, counts 6, 7, 9 and 10 are supported by sufficient evidence. In addition, we find no merit to Amezcua's remaining arguments. Accordingly, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
This case involves Amezcua's molestation of two female relatives when they were young girls, Jane Doe 1 and Jane Doe 2.
The molestation first came to light when Jane Doe 1, who was 22 years old at the time of trial, disclosed to a relative that Amezcua had molested her when she was eight years old. Family members confronted Amezcua about the allegations, and he admitted to having molested Jane Doe 1. He also disclosed to family members that he had molested Jane Doe 2, who was 13 years old at the time of trial.
In an interview with police that was video-recorded and played for the jury at trial, Amezcua admitted to molesting Jane Doe 1 and Jane Doe 2 and described the details of the molestations.
As to Jane Doe 1, Amezcua told police that on at least three occasions when Jane Doe 1 was eight or nine years old, he rubbed her buttocks and vagina while cuddling with her. In addition, Amezcua recalled one occasion when he put Jane Doe 1's hand on his penis for a few seconds. As to Jane Doe 2, Amezcua stated that he started touching Jane Doe 2 on the buttocks and vagina over her clothing when she was approximately seven years old. According to Amezcua, he touched Jane Doe 2 in that manner "a few times" when he lived at a residence in Riverside County, including one instance during which he touched Jane Doe 2's bare skin beneath her underwear. Amezcua also stated that later, when he moved to San Diego and Jane Doe 2 was approximately 10 years old, he touched Jane Doe 2's buttocks and vagina on one occasion over her clothes. Amezcua told police that he was "aroused" during the molestation of the two girls, but he claimed that he never had an erection.
Amezcua was charged with five counts of committing lewd acts against Jane Doe 1 (counts 1-5) and seven counts of committing lewd acts against Jane Doe 2 (counts 6-12). (§ 288, subd. (a).) The information described the acts that gave rise to each count. As to the counts concerning Jane Doe 2, three of them were alleged to have taken place at Amezcua's San Diego residence and four of them at his Riverside County residence. Counts 6, 9, 10, 11 and 12 were based on allegations that Amezcua touched Jane Doe 2's vagina. Counts 7 and 8 alleged a touching of Jane Doe 2's buttocks and Jane Doe 2's chest, respectively.
Jane Doe 1 testified that when she was eight years old, Amezcua molested her in the same manner on six or seven occasions. Specifically, on each occasion Amezcua would rub Jane Doe 1's clitoris beneath her underwear, touch her breasts and put her hand on his erect penis over his clothes. On one occasion Amezcua also put his mouth on Jane Doe 1's breast and licked her nipple. According to Jane Doe 1, Amezcua suggested that she not tell anyone about the molestation.
Jane Doe 2 testified that when she was 11 or 12 years old Amezcua molested her on two occasions, and both occurred at his residence in San Diego. According to Jane Doe 2, Amezcua touch her vagina on only one occasion. Specifically, Jane Doe 2 stated that on that occasion, Amezcua caressed her arms and touched her vagina with a "slight tap" over her clothes. On the second occasion, Amezcua caressed her arm and also touched her chest near her collarbone but did not touch her vagina. When the prosecutor followed up with Jane Doe 2 about whether Amezcua touched her vagina on a second occasion, Jane Doe 2 reiterated that Amezcua did not. When the prosecutor followed up as to whether Amezcua had molested Jane Doe 2 on more than two occasions, Jane Doe 2 stated that there was no third occasion on which Amezcua molested her. Jane Doe 2 testified that Amezcua told her not to tell anyone about the molestation.
Amezcua testified at trial. He stated that he had touched Jane Doe 1 as he described during his police interview, but stated that it was done in a "playful" manner and that he did not touch her to become sexually aroused. He denied that he ever directly touched Jane Doe 1's clitoris underneath her clothes and claimed that the only time Jane Doe 1 touched his penis was by accident when he was picking her up.
As to Jane Doe 2, Amezcua testified that he touched her on only two occasions, stating "I remember two situations with [Jane Doe 2], just two situations." Although Amezcua provided sparse detail during his testimony about the ways in which he touched Jane Doe 2 on those two occasions, he did admit that he touched Jane Doe 2's vagina on one occasion at his San Diego residence.
Later in his testimony, Amezcua admitted that he touched Jane Doe 2's vagina at the Riverside County residence. On that subject the following testimony was presented at trial when the prosecutor asked Amezcua about a description of the molestation at the Riverside County residence that Amezcua had given to police:
"[Prosecutor]: Do you remember the detective asking you, can you tell me what happened with [Jane Doe 2]? And then you replied, 'It was again, cuddling, playing. I noticed that -- uh, see if I could touch her, and I did. In the back again, start . . . in the rear end and rubbed her thighs and again in her private part.' You reference that section of your interview. Would it be fair to say that that instance of the touching was not an accident?
"[Amezcua]: Yes, it was not an accident.
"[Prosecutor]: You did it on purpose?
"[Amezcua]: Yes."
Earlier in his testimony Amezcua also seemed to generally admit to this same molestation at his Riverside County residence when the prosecutor asked him about his statements to the police about that incident.
"[Prosecutor]: You told the detectives you were playing piggyback or goofy games and that you had touched her — and this was at the [Riverside County] house — you touched her on her vagina on that occasion.
"[Amezcua]: I think so.
"[Prosecutor]: And then they asked you how many more times it happened. You said three more times at the [Riverside County] house; is that correct?
"[Amezcua]: I remember two situations with [Jane Doe 2], just two situations."
Amezcua also testified that he did not touch Jane Doe 2 with any sexual intent and did not consider himself to be a child molester because he had no desire to penetrate either of the girls or to have sex with them. Although admitting that he told the police that he was "aroused" during the molestations, he tried to minimize that statement during his trial testimony by claiming that "[i]t was aroused in the sense of thinking, I shouldn't be doing this" and it "wasn't related to . . . sexual desire."
The jury convicted Amezcua of two counts of committing lewd acts against Jane Doe 1 and four counts of committing lewd acts against Jane Doe 2, but were unable to reach a verdict on the remaining counts. As to Jane Doe 1, the jury convicted Amezcua in count 2 based on touching Jane Doe 1's vagina, and in count 4 based on placing Jane Doe 1's hand on his penis. As to Jane Doe 2, the jury convicted Amezcua (1) in count 6 based on touching Jane Doe 2's vagina at the San Diego residence; (2) in count 7 based on touching Jane Doe 2's buttocks at the San Diego residence; (3) in count 9 based on touching Jane Doe 2's vagina "skin to skin" at the Riverside County residence; and (4) in count 10 based on touching Jane Doe 2's vagina "over the clothes, the first time" at the Riverside County residence. The jury also made a true finding that Amezcua's crimes were committed against more than one victim. (§§ 667.61, subds. (b), (c), (e), 1203.066, subd. (a)(7).)
The People eventually dismissed the remaining counts.
The trial court sentenced Amezcua to prison for a term of 45 years to life. Specifically, the trial court ordered that the 15-year-to-life terms for counts 2, 6 and 9 run consecutively to each other, and that the 15-year-to-life terms for counts 7 and 10 run concurrently to the other counts, along with a concurrent determinate term of eight years on count 4.
II
DISCUSSION
A. Based on the Corpus Delicti Rule, the Evidence Was Sufficient
to Support the Convictions in Counts 6, 7, 9 and 10
We first consider Amezcua's contention that the evidence was insufficient to convict him of three of the counts alleging lewd acts against Jane Doe 2 (counts 7, 9 & 10) because the prosecution did not establish the corpus delicti of those offenses and improperly premised the convictions solely on Amezcua's extrajudicial statements.
"In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause." (People v. Alvarez (2002) 27 Cal.4th 1161, 1168.) "Though no statute or constitutional principle requires it, California, like most American jurisdictions, has historically adhered to the rule that the . . . corpus delicti . . . cannot be proved by exclusive reliance on the defendant's extrajudicial statements." (Id. at p. 1165.) Put another way, "[t]he corpus delicti rule requires the prosecution to prove that 'the charged crime actually happened' exclusive of the accused's extrajudicial statements." (People v. Ray (1996) 13 Cal.4th 313, 342, italics added.) "This rule is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened." (Alvarez, supra, at p. 1169, italics added.)
Although the corpus delicti rule requires that the prosecution present proof that a crime occurred independent of the defendant's extrajudicial statements, "[t]he independent proof may be by circumstantial evidence [citation], and it need not be beyond a reasonable doubt. A slight or prima facie showing, permitting the reasonable inference that a crime was committed, is sufficient. [Citation.] If the independent proof meets this threshold requirement, the accused's admissions may then be considered to strengthen the case on all issues." (People v. Alcala (1984) 36 Cal.3d 604, 624-625.)
In People v. Jennings (1991) 53 Cal.3d 334, 368, the court explained the minimal burden of proof required for corpus delicti, and the reasons for the rule. The court said:
"We reemphasize that the quantum of evidence the People must produce in order to satisfy the corpus delicti rule is quite modest; case law describes it as a 'slight or prima facie' showing. [Citations.] This minimal standard is better understood when we consider that the purpose of the corpus delicti rule is 'to protect the defendant against the possibility of fabricated testimony which might wrongfully establish the crime and the perpetrator.' [Citation.] As one court explained, 'Today's judicial retention of the rule reflects the continued fear that confessions may be the result of either improper police activity or the mental instability of the accused, and the recognition that juries are likely to accept confessions uncritically.' " (Id. at p. 368.)
We infer from the court's comments that proof of corpus delicti is not intended to verify each detail of a defendant's out-of-court statements; rather it is to avoid false confessions, particularly those that might arise from the pressure of police interrogation. Consistent with the policy underlying the rule, courts in child molestation cases involving multiple acts, have not required count-by-count proof of corpus delicti. In People v. Tompkins (2010) 185 Cal.App.4th 1253 (Tompkins), the court squarely held that "separate evidence is not required as to each individual count to establish the corpus delicti; rather, evidence that multiple molestations took place will establish the corpus delicti for multiple counts." (Id. at p. 1260.)
The approach taken in Tompkins, supra, 185 Cal.App.4th 1253 is based on the observation that "[t]he testimony of young children concerning a series of events cannot be as perfect as a phonographic record thereof. It would practically close the doors against the prosecution of many of such wrongs if girls of tender years were required to give detailed and unvarying description of each transaction and its circumstances." (People v. Durfee (1947) 79 Cal.App.2d 632, 634.)
Similar to the liberal approach taken in cases considering whether the corpus delicti rule has been satisfied in child molestation cases, when sufficiency of the evidence of a child molestation conviction is challenged, courts apply the rule that a defendant may properly be convicted of acts of child molestation based on a witness's testimony that the defendant generally molested her in a specific manner over the course of time, even if the witness is unable to provide details about "precise date, time, place or circumstance." (People v. Jones (1990) 51 Cal.3d 294, 315.)
In Tompkins, the defendant was convicted of multiple counts of lewd acts against his minor daughter and argued that based on the corpus delicti rule, he should not have been convicted of six of the counts because "the only evidence to support those counts was his own statements" to an investigator, in which he described the specific acts of molestation. (Tompkins, supra, 185 Cal.App.4th at p. 1259.) Tompkins concluded that because the victim's testimony generally described numerous instances of molestation, including that "defendant molested her more than once but less than 50 times, [that] she had visitation with defendant approximately every other weekend during that period, and defendant molested her on some, but not all, of those visits," and she also told an investigator that the defendant had touched her " 'on many occasions,' " the evidence "was amply sufficient" to establish the corpus delicti for the six specific counts of molestation that defendant challenged. (Id. at p. 1260.)
In People v. Culton (1992) 11 Cal.App.4th 363 (Culton), the corpus delicti for the defendant's conviction for 10 counts of committing a lewd act on a child was supplied by expert medical testimony from a doctor who performed a forensic genital examination of the victim. (Id. at pp. 365, 368.) Specifically, the doctor testified that the victim's physical condition was consistent with having been abused over a long period of time, which established the corpus delicti for all the offenses. (Id. at p. 372.)
Jane Doe 2 did not testify at trial to any of the acts described in counts 7, 9 and 10, as she described only two incidents: one in which Amezcua touched her arms and vagina at the San Diego residence; and one in which Amezcua touched her arms and her chest near the collarbone at the San Diego residence. However, during Amezcua's own testimony at trial, he admitted to committing the act charged in count 10, which was touching Jane Doe 2's vagina "over the clothes, the first time" at the Riverside County residence.
Specifically, as we have described above, Amezcua generally seemed to admit at trial that he touched Jane Doe 2 at his Riverside County residence as he described during his police interview.
"[Prosecutor]: You told the detectives you were playing piggyback or goofy games and that you had touched her — and this was at the [Riverside County] house — you touched her on her vagina on that occasion.Later in his trial testimony, Amezcua was asked about an admission during his police interview about the first incident at the Riverside County residence, and he specifically admitted that he purposely touched Jane Doe 2's vagina on that occasion.
"[Amezcua]: I think so.
"[Prosecutor]: And then they asked you how many more times it happened. You said three more times at the [Riverside County] house; is that correct?
"[Amezcua]: I remember two situations with [Jane Doe 2], just two situations."
"[Prosecutor]: Do you remember the detective asking you, can you tell me what happened with [Jane Doe 2]? And then you replied, 'It was again, cuddling, playing. I noticed that -- uh, see if I could touch her, and I did. In the back again, start in the rear end and rubbed her thighs and again in her private part.' You reference that section of your interview. Would it be fair to say that that instance of the touching was not an accident?
"[Amezcua]: Yes, it was not an accident.
"[Prosecutor]: You did it on purpose?
"[Amezcua]: Yes."
Amezcua seeks to distinguish both Culton, supra, 11 Cal.App.4th 363 and Tompkins, supra, 185 Cal.App.4th 1253, thus arguing his proposed count-by-count application of corpus delicti in child molestation cases is warranted. We find his proposed distinctions of controlling authority are not persuasive.
Amezcua contends Culton, supra, 11 Cal.App.4th 363 is distinguishable because there was medical testimony in that case which supported a finding of child molestation, perhaps on multiple occasions. In this case, there was no medical evidence. However, in Culton the defendant was convicted of multiple counts of child molestation, without independent evidence on a count-by-count basis. The court reasoned that the purpose of the corpus delicti rule did not require such an expanded form of corroboration.
Similarly, Amezcua argues Tompkins, supra, 185 Cal.App.4th 1253, which like Culton, supra, 11 Cal.App.4th 363, was decided by Division Two of our court, is distinguishable. The attempted distinction is that the Tompkins case relied on generalized testimony regarding on going child molestation, whereas Jane Doe 2's testimony in this case was specific. Again, we find the proposed distinction is not persuasive.
The court in Tompkins was very clear in its analysis of the application of corpus delicti in multiple count child molestation cases. The court said: "We read Culton[, supra, 11 Cal.App.4th 363] as standing for the proposition that separate evidence is not required as to each individual count to establish the corpus delicti; rather, evidence that multiple molestations took place will establish the corpus delicti for multiple counts." (Tompkins, supra, 185 Cal.App.4th at p. 1260.)
We are persuaded by the opinions in Culton, supra, 11 Cal.App.4th 363 and Tompkins, supra, 185 Cal.App.4th 1253 and follow their reasoning. We also find some independent evidence in Amezcua's testimony. Although Jane Doe 2 testified that no molestation occurred in Riverside County, Amezcua's testimony provides some independent evidence of such acts.
As we have quoted above, Amezcua testified that some "playful activities" involving Jane Doe 2, including touching her vagina, occurred in Riverside County. Jane Doe 2 also testified there was only one occasion of molestation, and that occurred in San Diego. Again, as we have quoted above, Amezcua testified there were "two instances" involving the touching of Jane Doe 2. Although Amezcua's testimony was often vague or inconsistent, a reasonable jury could conclude his testimony provided some independent evidence that Jane Doe 2 was molested twice, once in Riverside County and once in San Diego.
Based on the controlling appellate authority and on drawing all reasonable inferences in favor of the decision of the trier of fact, we are satisfied that the challenged conviction for counts involving Jane Doe 2 are supported by sufficient evidence of corpus delicti. Accordingly, we reject Amezcua's arguments to the contrary.
B. Substantial Evidence Supports a Finding That Amezcua
Touched Jane Doe 2 with Sexual Intent
Amezcua contends that none of the lewd act convictions arising out of his touching of Jane Doe 2 are supported by sufficient evidence because the evidence does not support a finding that he performed the touching with any sexual intent.
In considering a challenge to the sufficiency of the evidence, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 60.)
Amezcua was convicted of committing lewd acts against a child under section 288, subdivision (a) for touching Jane Doe 2's vagina. That provision makes it a crime when "any person . . . willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child."
"[S]ection 288 'prohibits all forms of sexually motivated contact with an underage child. . . .' [Citation.] Thus, any touching of a child under the age of 14 is a felony offense 'even if the touching is outwardly innocuous and inoffensive, if it is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the victim.' [Citations.] . . . [¶] To determine whether a defendant acted with sexual intent, all the circumstances are examined. Relevant factors include the nature and manner of the touching, the defendant's extrajudicial statements, the relationship of the parties and 'any coercion, bribery or deceit used to obtain the victim's cooperation or avoid detection.' [Citation.] The requisite intent 'must be inferred from all the circumstances . . . .' " (In re R.C. (2011) 196 Cal.App.4th 741, 749-750.)
Here, substantial evidence supports a finding that Amezcua acted with sexual intent in touching Jane Doe 2 . The strongest evidence of Amezcua's intent in touching Jane Doe 2 is found in his own admissions during the police interview. Amezcua told the police that he was "aroused," although without an erection, when he touched Jane Doe 1 and Jane Doe 2. Further, Jane Doe 1 testified that Amezcua's penis was erect when he made her touch it during the molestations. From this testimony, a reasonable juror could infer that touching young girls is arousing to Amezcua because it is sexually stimulating to him, and that is why he committed the acts.
Although Amezcua attempted during his trial testimony to minimize his admission to being "aroused" during the molestations by claiming that he meant "aroused in the sense of thinking, I shouldn't be doing this," and claimed that he did not touch Jane Doe 2 for any sexual purpose, it was for the jury to decide whether to credit Amezcua's trial testimony on that issue. A reasonable juror could decide that Amezcua's attempt to minimize his admission to police was not credible because it contradicted his earlier statements and there is no sensible explanation for why someone in Amezcua's position would touch a young girl's vagina except for the purpose of sexual stimulation.
Amezcua's sexual intent in touching Jane Doe 2 is also shown by evidence supporting a finding that Amezcua knew that what he was doing was wrong. Specifically, (1) Amezcua told Jane Doe 2 not to tell anyone about the touching; (2) Amezcua admitted that he knew he was "not supposed to do this" while he was touching Jane Doe 2; and (3) Amezcua described his thought process upon initiating the molestation as "[my] stupid brain would take me down that way." A reasonable juror could infer that because Amezcua viewed his acts as improper, because the touching involved a young girl in various places, including her vagina, and Amezcua used the word "aroused" when explaining his state of mind, Amezcua was doing the acts with sexual intent.
In sum, under the totality of the circumstances, we conclude that ample evidence supports a finding that Amezcua's touching of Jane Doe 2 was done "with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child." (§ 288, subd. (a).)
C. There Was No Prosecutorial Misconduct
Amezcua contends, for the first time on appeal, that the prosecutor committed misconduct during closing argument by reason of his discussion of proof requirements for corpus delicti as to some of the counts regarding Jane Doe 2. Amezcua did not object to the prosecutor's arguments in the trial court. He claims an objection would have been futile and if the issue has been forfeited, that trial counsel provided ineffective assistance.
We will find the issues regarding the prosecutor's arguments have been forfeited by failure to raise them in the trial court. We will also find Amezcua has not established ineffective assistance of counsel. Thus, we will reject his contentions regarding alleged prosecutorial misconduct.
Where a prosecutor uses deceptive or reprehensible methods to attempt to persuade a jury, he or she has committed misconduct. (People v. Fuvia (2012) 53 Cal.4th 622, 679.) However, a defendant may not raise an issue regarding the prosecutor's arguments for the first time on appeal. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) Failure to timely object can be excused only where an objection would have been futile or where the harm caused by the prosecutor's argument cannot be cured by objection. (Fuvia, supra, at p. 679; People v. Jablonski (2006) 37 Cal.4th 774, 835; People v. Morales (2001) 25 Cal.4th 34, 43-44.)
During closing arguments, the prosecutor said that he could prove corpus delicti of the offenses involving Jane Doe 2 by showing multiple molestations of her had occurred. Amezcua now claims such comments were erroneous and caused him prejudice. He recognizes failure to object during argument ordinarily forfeits the claim. Amezcua claims, without support in the record, that an objection would have been futile. We find nothing in the record to show that timely objection and admonition would not have cured any alleged error. The jury had been properly instructed on the principles of corpus delicti, and they had been told the judge was the person who stated the law, not the attorneys. We find nothing in the record to justify relieving Amezcua of the application of the long established rule that failure to timely object to arguments results in forfeiture of the issue. Accordingly, we do not discuss the merits of Amezcua's contentions on this issue.
In order to avoid the impact of forfeiture, appellate counsel offers the usual backup argument that trial counsel was ineffective for failing to object. We also reject this contention.
In order to establish ineffective assistance of trial counsel, an appellant must first show that counsel's performance fell below the appropriate standard of care, i.e., a significant error or failure to act. Once error is shown, the defendant must also show prejudice by establishing that there is a reasonable likelihood a more favorable result would have occurred in the absence of counsel's failure. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Amezcua has not met his burden on this issue.
There is nothing in this record to explain why trial counsel did not object to the argument, which has been identified on appeal. Given the considerable deference afforded to trial counsel's tactical decisions we have nothing from which we can assess counsel's performance on this record. As our Supreme Court has pointed out it is often difficult on appeal to assess counsel's failure to take some action that appellate counsel now deems necessary. In People v. Mendoza Tello (1997) 15 Cal.4th 264, 267-268, the court noted that in such cases the appellant's remedy, if any, is by way of a petition for writ of habeas corpus.
We find it unnecessary to address the prejudice prong of Strickland v. Washington, supra, 466 U.S. 668, other than to observe the challenged comments of the prosecutor are almost quotes from Culton, supra, 11 Cal.App.4th at page 367, and Tompkins, supra, 185 Cal.App.4th at page 1260. The current record presents no discernable prejudice to the defendant.
DISPOSITION
The judgment is affirmed.
/s/_________
HUFFMAN, Acting P. J. I CONCUR: /s/_________
O'ROURKE, J. IRION, J., Dissenting.
I disagree with my colleagues' analysis of the corpus delicti challenge raised in Amezcua's appeal. As I will explain, application of the relevant case law on the corpus delicti rule leads me to conclude that counts 7 and 9 are not supported by sufficient evidence. I would accordingly reverse the judgment as to those counts.
I agree with my colleagues that "[t]he corpus delicti rule requires the prosecution to prove that 'the charged crime actually happened' exclusive of the accused's extrajudicial statements." (People v. Ray (1996) 13 Cal.4th 313, 342, italics added.) I further agree that case law establishes that the corpus delicti rule may be applied in a liberal manner in child molestation cases. (People v. Tompkins (2010) 185 Cal.App.4th 1253 (Tompkins); People v. Culton (1992) 11 Cal.App.4th 363 (Culton).) Specifically, in child molestation cases "separate evidence is not required as to each individual count to establish corpus delicti; rather, evidence that multiple molestations took place will establish corpus delicti for multiple counts." (Tompkins, at p. 1260, italics added.)
In Tompkins, the corpus delicti rule was satisfied for the six specific counts of molestation alleged against the defendant because the victim testified in a general manner about numerous instances of molestation, including that "defendant molested her more than once but less than 50 times, she had visitation with defendant approximately every other weekend during that period, and defendant molested her on some, but not all, of those visits," and she told an investigator that the defendant had touched her " 'on many occasions.' " (Tompkins, supra, 185 Cal.App.4th at p. 1260.) Similarly in Culton, the corpus delicti rule was satisfied for the 10 counts of lewd acts alleged against the defendant because a doctor testified that based on his physical examination of the victim, her condition was consistent with being molested multiple times. (Culton, supra, 11 Cal.App.4th at p. 372.)
The rule established in Tompkins and Culton is that when a victim of child molestation is unable to provide an exact description of each instance of molestation, proof of the corpus delicti for multiple counts of molestation will be satisfied by evidence that the victim was sexually molested on multiple unspecified occasions. The rule exists because "[i]t would practically close the doors against the prosecution of many of such wrongs if girls of tender years were required to give detailed and unvarying description of each transaction and its circumstances." (People v. Durfee (1947) 79 Cal.App.2d 632, 634.) Thus, for instance, in this case if Jane Doe 2 had been unable to recall how many times Amezcua molested her and was unable to relate the details of the molestation, but she was able to testify in general that Amezcua molested her on multiple occasions over a period of time, that evidence would amply satisfy the requirements of the corpus delicti rule because it would establish that "multiple molestations took place." (Tompkins, supra, 185 Cal.App.4th at p. 1260.)
However, that is simply not the evidence presented in this case. To the contrary, Jane Doe 2 was able to remember the molestation in detail and was very clear in testifying that Amezcua touched her on only two specific occasions. In describing those two occasions, Jane Doe 2 unambiguously testified that the molestation was not perpetrated on an ongoing basis or on multiple unspecified occasions. In fact, when asked whether "there was a third time that [Amezcua] touched you that made you uncomfortable," Jane Doe 2 clearly answered, "No."
My colleagues accurately summarize the content of Jane Doe 2's testimony, acknowledging that Jane Doe 2 testified Amezcua touched her on two occasions. Specifically, Amezcua touched her vagina on only one occasion and on the second occasion, Amezcua caressed her arm and also touched her chest near her collarbone but did not touch her vagina. As my colleagues recognize, "[w]hen the prosecutor followed up as to whether Amezcua had molested Jane Doe 2 on more than two occasions, Jane Doe 2 stated that there was no third occasion on which Amezcua molested her." (Maj. opn, ante, at p. 4.)
My colleagues suggest that Amezcua's testimony could be interpreted to provide evidence that Amezcua molested Jane Doe 2 on an ongoing basis on multiple occasions because he referred to engaging in "playful" activities with Jane Doe 2. I disagree. The testimony to which my colleagues refer occurred during defense counsel's examination of Amezcua. In an attempt to develop Amezcua's defense that he did not touch the girls in a sexual manner, defense counsel first asked Amezcua about his intent in touching Jane Doe 1, and Amezcua answered that he always touched her in a "playful manner." Turning to the subject of Jane Doe 2, defense counsel asked, "What kind of touchings occurred with [Jane Doe 2]?" Amezcua answered, "[Jane Doe 2] was, again, always in a playful manner." During this portion of his testimony, Amezcua said nothing in my view that could be taken as an admission that he molested Jane Doe 2 on multiple unspecified occasions over the course of time. Indeed, when specifically asked by the prosecutor how many times he molested Jane Doe 2, Amezcua stated, "I remember two situations with [Jane Doe 2], just two situations."
Accordingly, in this case there is simply no evidence that Amezcua committed multiple molestations of Jane Doe 2 on unspecified occasions over the course of time sufficient to satisfy the liberal approach to the corpus delicti rule for child molestation cases as described in Tompkins and Culton.
As the exception to the corpus delicti rule described in Tompkins and Culton does not apply here, in my view the correct analysis is to determine whether, under the normally applicable corpus delicti rules, the evidence presented at trial — apart from Amezcua's extrajudicial statements — creates a reasonable inference that Amezcua committed the lewd acts alleged in counts 7, 9 and 10.
Amezcua does not argue that the corpus delicti rule bars his conviction for the lewd act charged in count 6, consisting of touching Jane Doe 2's vagina at the San Diego residence, as Jane Doe 2's testimony provided evidence of that count. --------
Turning to those three counts, count 7 was based on the finding that Amezcua touched Jane Doe 2's buttocks at the San Diego residence; count 9 was based on the finding that Amezcua touched Jane Doe 2's vagina "skin to skin" at the Riverside County residence; and count 10 was based on the finding that Amezcua touched Jane Doe 2's vagina "over the clothes, the first time" at the Riverside County residence.
As an initial matter, I would note that Jane Doe 2's testimony does not supply evidence to satisfy the corpus delicti rule as to the challenged counts because, as my colleagues accurately point out, "Jane Doe 2 did not testify at trial to any of the acts described in counts 7, 9 and 10, as she described only two incidents: one in which Amezcua touched her arms and vagina at the San Diego residence; and one in which Amezcua touched her arms and her chest near the collarbone at the San Diego residence." (Maj. opn, ante, at p. 10.)
However, Amezcua's own trial testimony provides evidence to satisfy the corpus delicti rule for count 10 because it creates a reasonable inference that Amezcua touched Jane Doe 2's vagina, over her clothes, at the Riverside County residence. Specifically, Amezcua admitted at trial that he touched Jane Doe 2 at his Riverside County residence on two occasions:
"[Prosecutor]: You told the detectives you were playing piggyback or goofy games and that you had touched her — and this was at the [Riverside County] house — you touched her on her vagina on that occasion.Amezcua also admitted that he purposely touched Jane Doe 2's vagina during the first incident at the Riverside County residence:
"[Amezcua]: I think so.
"[Prosecutor]: And then they asked you how many more times it happened. You said three more times at the [Riverside County] house; is that correct?
"[Amezcua]: I remember two situations with [Jane Doe 2], just two situations."
"[Prosecutor]: Do you remember the detective asking you, can you tell me what happened with [Jane Doe 2]? And then you replied, 'It was again, cuddling, playing. I noticed that -- uh, see if I could touch her, and I did. In the back again, start in the rear end and rubbed her thighs and again in her private part.' You reference that section of your interview. Would it be fair to say that that instance of the touching was not an accident?
"[Amezcua]: Yes, it was not an accident.
"[Prosecutor]: You did it on purpose?
"[Amezcua]: Yes."
Amezcua denied at trial that he ever touched Jane Doe's vagina in a skin-to-skin touching. Therefore, his trial testimony about the incidents involving Jane Doe 2 at the Riverside County residence must be understood as an admission of a touching over Jane Doe 2's clothes.
Based on these admissions during Amezcua's trial testimony, sufficient evidence independent of Amezcua's extrajudicial statements, supports a finding that Amezcua committed the crime of touching Jane Doe 2's vagina, over her clothes, at the Riverside County residence as charged in count 10. Accordingly, the corpus delicti rule does not undermine Amezcua's conviction in count 10.
However, no evidence was presented at trial, independent of Amezcua's extrajudicial statements, that Amezcua touched Jane Doe 2's buttocks at the San Diego residence as alleged in count 7 or that he touched Jane Doe's vagina, skin-to-skin at the Riverside County residence as alleged in count 9. Neither Jane Doe 2's trial testimony nor Amezcua's trial testimony described such acts. The only evidence that such acts occurred is in Amezcua's extrajudicial statements. Accordingly, the convictions in counts 7 and 9 are not supported by sufficient evidence due to the operation of the corpus delicti rule.
I would therefore reverse the convictions in counts 7 and 9 because, due to the corpus delicti rule, they are not supported by substantial evidence.
/s/_________
IRION, J.