Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County Super. Ct. No. MCR017637. Edward P. Moffat II, Judge.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
Defendant Eduardo Infante Baltierra was tried before a jury and convicted of multiple sexual offenses arising from the abuse of his two stepdaughters. On appeal, he contends (1) the trial court erroneously believed consecutive terms of 15 years to life were required for his convictions of aggravated sexual assault on a child (Pen. Code, § 269); (2) the trial court erred in sentencing him under the One Strike law (§ 667.61) because he was not convicted of a qualifying offense against more than one victim; (3) the evidence was insufficient to support his conviction of attempted lewd acts on a child (§§ 664, 288, subd. (a)); (4) the trial court abused its discretion in denying his request at sentencing for a “Mixtec” language interpreter; and (5) the trial court abused its discretion in denying his motion for a new trial based on newly discovered evidence. We agree with defendant’s second contention and will remand for re sentencing. In all other respects, we will affirm the judgment.
All further statutory references are to the Penal Code unless otherwise specified.
BACKGROUND
Defendant was born in March 1974, and married Christi in June 2001. The victims, D. and R., were Christi’s daughters. D. was born in March 1991 and R. was born in November 1992. The victims also had two little brothers.
In June 2003, defendant, Christi, and the children moved in with Daniel Pool (hereafter, “Pool” or “Uncle Dan”). Pool lived out in the country, and the children called him Uncle Dan. It was during the time they were living with Pool that defendant sexually abused the victims. At defendant’s trial, four witnesses testified for the prosecution.
1. Victim D.
At trial, D. recalled three specific incidents of sexual abuse. One night defendant took her into the orchards outside Pool’s house. He told her they were going to shoot rabbits. But once they were there, defendant placed D. on the ground and put his finger inside her vagina. He then got on top of her and put his penis inside her vagina. D. cried and struggled to get away but defendant “just kept going.” When he was done, defendant pulled up D.’s pants and then his own before they walked back to the house.
Another night, defendant came into the victims’ bedroom while they were sleeping. Defendant got on top of D., pulled down her pants, and put his penis inside her vagina. D. recalled that R. woke up and defendant told her to go back to sleep. D. cried and tried to get free, but defendant “just kept going and going until he was done.” When he was done, defendant pulled up his pants and left the room.
The last incident D. could recall took place around Thanksgiving. D. testified that she thought it was Thanksgiving “Because that morning my uncle put in the turkey in the oven.” Defendant came to her room and gave her a beer to drink. He then touched her and put his penis inside her vagina.
When asked how many times these encounters with defendant occurred, D. testified, “Whenever he was drinking or smoking pot.” Her mother was asleep when they happened.
The first person D. told about what was happening was Uncle Dan. It was Thanksgiving morning. Uncle Dan asked her why she was crying and why defendant had been in her room. D. did not tell anybody sooner because she was scared her mother would not believe her. D. explained her mother “takes the man before her children.”
No one besides defendant ever touched D. inappropriately.
D. claimed that defendant physically disciplined her by getting a belt and hitting her on the back. He also did this to one of her brothers.
Even before the first incident of abuse, D. thought defendant was “a nasty man” and “had a feeling something bad was going to happen.”
When D. lived in the house with her mother and defendant, defendant spoke Spanish. D. understood and spoke Spanish and was able to communicate with defendant.
On cross-examination, D. confirmed that, during an interview, she estimated that defendant had sex with her 30 to 35 times and that this was true. It would happen every Friday and Saturday night when defendant would get drunk and come into her room. Her mother was always in the house when this happened.
D. also acknowledged that when she was asked during the interview how her mother and defendant met, she said they met when her mother forced her to watch her having sex with 20 men, two at a time. Defendant was one of the 20 men. D. maintained that this was true.
D. further verified that when she was asked during the interview how she knew defendant was done having sex with her during the incident in the orchards, she answered, “he shot his sperm inside me.”
Before talking to Uncle Dan, D. never told any school officials about defendant’s abuse because she was afraid she and her siblings would be taken away from her mother and Uncle Dan, and she wanted them to stay together.
D. admitted she wanted defendant out of her life and her family’s life from the time she met him.
On redirect examination, D. testified she did not dislike defendant so much that she would be willing to lie to get rid of him.
2. Victim R.
At trial, R. recalled that defendant touched her in three different rooms in Uncle Dan’s house. The first incident she could recall occurred in defendant’s room. Defendant pulled her pants down, laid her on the bed, and started trying to put his penis inside her vagina. R. could not get up because defendant was bigger than she was and he would push her back down on the bed.
The second incident R. could recall occurred in the bathroom. Defendant laid her down on a towel on the bathroom floor and tried to put his penis inside her vagina. His penis went in “[a] little.” He stopped when R. heard her uncle asking where she was.
R. recalled that defendant also assaulted her in the living room. R. testified that defendant bent her over the arm of a couch and “did it from behind … [h]e stuck his [penis] into my vagina.”
R. also claimed that one night she witnessed defendant sexually assaulting her sister, D. According to R. defendant came into their bedroom through the window. He went to the bed, pulled down D.’s pants, and stuck his penis inside her. R. told him to stop or she would tell her uncle. He stopped and left the bedroom through the door.
R. never told her mother because her mother would not have believed her, “Because she’s like that.” R. did not think any of her teachers would believe her either.
R. confirmed that defendant spoke Spanish. She understood it and was able to communicate with defendant when she lived with him.
On cross-examination, R. acknowledged that in August 2004, about eight months after she was placed in foster care, she told a social worker that Pool also molested her and that this was true. According to R., she had tried to tell her teachers, but they had not believed her.
R. confirmed that she told law enforcement officials that her mother met defendant while they were playing basketball at a school.
R. also acknowledged that she told Uncle Dan that defendant molested her. When she talked to Uncle Dan, he told her “almost all Mexicans fuck their own children.”
R. acknowledged that when describing defendant’s acts to an interviewer, she made statements including, “I put it tight so he doesn’t stick it in,” “he just stuck the head in,” and “Every time he tries to shoot the load in me, he can’t.”
On redirect examination, R. verified that it was her testimony that both defendant and Pool molested her.
3. Daniel Pool
Pool testified he saw defendant go into D.’s room early one morning. Defendant had two beers with him. When D. came out of the room, Pool asked her what was going on, but she did not say anything. Pool then asked what defendant was doing bringing beers into her room. D. replied that defendant was just talking to her, but Pool could smell beer on her breath. D. eventually disclosed that she was being molested. Pool told D. she needed to tell her mother. Pool was present when D. spoke to her mother, who became upset. Pool then called the sheriff’s department and they came out and spoke with D.
Pool denied that he ever threatened defendant. Pool did not speak Spanish and never spoke to defendant. Pool often saw defendant drinking in the house.
Pool recalled that on the occasion he saw defendant go into D.’s room, he was preparing food, including a turkey, for Christmas dinner.
Pool never saw defendant whip any of the children with a belt.
Pool acknowledged that he was aware that R. had in the past accused him of touching her inappropriately. To his knowledge, the allegations were investigated. He did not know what happened with those allegations. The allegations were made sometime before Christi, defendant, and the children moved into his home. Pool was never charged with any crimes.
On cross-examination, Pool testified that he contacted the sheriff’s department the same night D. told him about defendant. His recollection was that D. told him on Christmas Eve.
Pool denied that R.’s allegations against him were true. When asked if he said “almost all Mexicans fuck their own children,” Pool responded, “That’s a lie, sir.” According to Pool, the victims “always had problems of telling stories.”
Pool further testified on cross-examination that he was gone a lot, mostly on the weekends, and never witnessed defendant touch D. or R. inappropriately. Pool also denied that he ever physically disciplined D.
On redirect examination, Pool explained that he allowed Christi and her family to live with him despite R.’s prior allegations because they were begging him for a place to stay. Pool was upset the night he called the sheriff’s department, “Because it didn’t seem like their mother wanted to do anything, and I was so upset that these kinds of things would happen in my house.”
4. Detective Hancock
Detective Karl Hancock with the sheriff’s department was assigned to the case involving D. and R. He went to Pool’s home to investigate their allegations. Detective Hancock described Pool’s home and the surrounding area.
On cross-examination, Detective Hancock testified he was present during the separate “C-SART [(Child Sexual Abuse Response Team)]” interviews of D. and R. During her interview, D. did not make any statements about an incident of sexual activity occurring on Thanksgiving. Rather, she indicated it was Christmas Eve. Detective Hancock confirmed that D. stated defendant met her mother when her mother forced D. to watch her have sex with 20 men. D. also reported that she had around 30 sexual encounters with defendant. In her interview, R. stated that defendant had or attempted to have sex with her about 20 times. During their interviews, neither D. nor R. mentioned she was molested by Daniel Pool.
Detective Hancock further testified that Pool reported defendant for the first time to the sheriff’s department on January 24, 2004.
The Defense
With the aid of a Spanish interpreter, defendant testified and denied that he ever had sex or attempted to have sex with D. or R.
Defendant further testified he had lived in the United States for 12 years. He never had group sex with his wife, and D.’s testimony that he and 19 other men had sex with his wife was false.
Defendant testified that a few weeks before defendant was arrested, Pool threatened him and said “he’s going to find the way to fuck me up.”
On cross-examination, defendant testified he met Christi and her two daughters for the first time when he was on the street running errands. Defendant and Christi married a year later. He communicated with Christi in Spanish.
Defendant further testified that Pool threatened him around November 2003, and that he moved out of the house two to three weeks later. Defendant denied that he ever disciplined the victims.
Chris Swearengin testified that he was Pool’s biological son. He sometimes visited Pool at his residence when Christi’s family was living with him. During his visits, he saw Pool physically disciplining R. When asked in what manner Pool disciplined R., Swearengin replied: “Spanked ‘em with his bare palm.”
The Verdict and Sentence
With respect to D., the jury convicted defendant of two counts of aggravated sexual assault (§ 269, subd. (a)(1); counts 1 & 2) and one count of attempted lewd acts (§§ 664, 288, subd. (a); count 4), but acquitted him of a third count of aggravated sexual assault (count 3). With respect to R. the jury convicted defendant, as charged, of two counts of forcible lewd acts (§ 288, subd. (b); counts 5 & 6). The jury also found that defendant committed an offense against more than one victim within the meaning of the One Strike law (§ 667.61). The trial court imposed four consecutive 15-year-to-life sentences for counts 1, 2, 5, and 6, plus three years for count 4.
DISCUSSION
I. Consecutive Sentencing
The trial court imposed 15-year-to-life sentences for each of the two aggravated sexual assault counts (i.e., the § 269 counts), as was required by section 269, subdivision (b). It ordered that those sentences run consecutively under the assumption that consecutive sentences were mandatory under section 667.6, subdivision (d). Defendant argues that consecutive sentences were not mandatory because section 269 is not an offense enumerated in section 667.6, subdivision (d). We disagree with defendant’s argument.
Section 269 defines the crime of aggravated assault on a child and establishes a term of 15 years to life for that offense. At the time of the offenses (i.e., 2003), section 269 provided that the crime was committed when (1) the victim was less than 14 years old; (2) the defendant was 10 or more years older than the victim; and (3) the defendant committed one of several enumerated acts against the victim, including rape in violation of section 261, subdivision (a)(2). Section 667.6, subdivision (d) provided, in relevant part: “A full, separate, and consecutive term shall be served for each violation of … [¶] … [¶] paragraph (2) … of subdivision (a) of Section 261 .…”
Defendant recognizes that the section 269 counts in this case were based on his rape of D., a crime subject to the mandatory consecutive sentencing provisions of section 667.6, subdivision (d). He argues that section 667.6 does not apply because his actual conviction was for aggravated assault under section 269, which is not separately listed in section 667.6.
In People v. Jimenez (2000) 80 Cal.App.4th 286 (Jimenez), this court rejected a similar argument by a defendant who was convicted of multiple counts of section 269 based on acts of sodomy. “Defendant correctly points out that section 667.6, subdivision (d) does not explicitly provide that it applies to violations of section 269. However, he makes too much of this omission, ignoring the fact that violation of section 286 is one of the predicate offenses of section 269; one committing a forcible sodomy offense with the prescribed age disparity violates section 269. When the jury found defendant had violated section 269 under the circumstances presented here, it necessarily found he had violated section 286 and he had done so by force or fear. Thus, the factual predicate necessary to apply section 667.6, subdivision (d) was proved beyond a reasonable doubt.” (Jimenez, supra, 80 Cal.App.4th at p. 291.)
So too here. In convicting defendant of violating section 269, the jury necessarily found that he had committed acts of rape that fell within section 667.6. The court correctly determined that consecutive sentences on those counts were required.
Defendant recognizes Jimenez supports the trial court’s sentencing decision but claims the 2006 amendment to section 269 shows that Jimenez erroneously concluded that section 667.6 was applicable to violations of section 269 prior to 2006. We disagree.
In 2006, the Legislature amended section 269 to add subdivision (c) which provides: “The court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of section 667.6.” (Stats 2006, ch. 337, § 6, p. 2132.)
Defendant asserts that, through the 2006 amendment, “the Legislature and voters impliedly recognized that section 667.6 had not theretofore applied to section 269.” The court of appeal recently rejected a similar argument in People v. Figueroa (2008) 162 Cal.App.4th 95 (Figueroa) (review den., July 16, 2008):
“[D]efendant asserts that the amendment of section 269 in September 2006, to expressly apply the mandatory consecutive provision of section 667.6, subdivision (d) signals that the applicability of section 667.6, subdivision (d) to section 269 was ambiguous before that date. He also cites the Legislative Counsel’s Digest for the 2006 amendment to section 269 which states, ‘“The [amendment] would require the court to impose a consecutive sentence for each offense that results in a conviction under this provision.”’ (Legis. Counsel’s Dig., Sen. Bill No. 1128 (2005–2006 Reg. Sess.).) No doubt, the amendment does, indeed, require a consecutive sentence for each offense. However, the digest did not state that that requirement did not already exist under section 667.6, subdivision (d). Not to be ignored is the analysis of the Assembly Committee on Public Safety in 1994 that multiple convictions under section 269 were to be punished consecutively under section 667.6, former subdivision (d). Additionally, section 667.6, subdivision (d) has not, since 2006, been amended to add section 269. What we are left with then, at best for defendant, are dueling legislative analyses and an interpretation of inaction on the part of the Legislature. Rather than attempt to sort out these legislative tea leaves, we prefer to adopt the reasoned analysis of our colleagues at District Five in Jimenez. Section 667.6, subdivision (d) was crystal clear, at the time defendant committed his crimes, in its application to the rapes that the jury in this case found beyond a reasonable doubt to have been committed. Therefore, consecutive sentencing was mandatory under that subdivision.” (Figueroa, supra, 162 Cal.App.4th at p. 100, first bracketed insertion added.)
We agree with Figueroa that Jimenez still offers the best interpretation of the interplay between sections 269 and 667.6, subdivision (d) prior to the 2006 amendment.
In Jimenez, we concluded that “section 667.6, subdivision (d) and section 269 are cumulative, not alternative, to each other” reasoning:
“Section 667.6 was enacted in 1979 [citation]; section 269 followed in 1994 [citation]. In enacting subsequent statutes, the Legislature is presumed to be aware of existing statutes and judicial decisions. [Citation.] [¶] Section 667.6 and section 269 serve two different objectives. Subdivision (d) of section 667.6 aggravates sex offenses involving multiple victims or multiple offenses. It was intended by the Legislature to provide increased punishment for cases where defendant’s culpability is increased by the ‘number and violence of his crimes.’ [Citation.] Section 269 was enacted for a different purpose. It increases the penalties for enumerated sexual offenses where the victim is under 14 years of age and the perpetrator is more than 10 years older than the victim. Thus, the Legislature intended to aggravate punishment for forcible sexual offenses where the defendant's culpability is increased by a substantial age disparity. [¶] … [¶] It would be irrational to suppose the Legislature intended that criminals who commit multiple violent sexual offenses would be exempt from the aggravated punishment prescribed by section 667.6 merely because their victims happened to be children under age 14 who were 10 or more years younger than they. Defendant does not proffer any decisional or historical support for his assertion that by enacting section 269 the Legislature created a separate sentencing scheme for violent sexual offenders who prey on a particular class of victims. He fails to account for the fact that characterization of section 269 as such would work to the advantage of pedophiles by exempting them from the additional penalties that would ordinarily result when they commit multiple offenses or prey upon more than one victim.” (Jimenez, supra, 80 Cal.App.4th at pp. 291-292.)
Four years after Jimenez was decided, we observed in People v. Glass (2004) 114 Cal.App.4th 1032 (Glass): “Section 269 is not one of the sex crimes listed in section 667.6. However, like section 12022.8, each of the crimes listed in section 269 is also listed in section 667.6. Nonetheless, the bill analysis for section 269 from the Assembly Committee on Public Safety specifically refers to the applicability of section 667.6 to section 269 crimes. [Citation.] It appears, therefore, that the Legislature anticipated that a defendant convicted of violating section 269 would be subject to the sentencing requirements of section 667.6, even though section 269 was not listed in section 667.6.By parity of reasoning, a defendant convicted of violating section 269 would also face the enhancement found in section 12022.8.” (Glass, supra, 114 Cal.App.4th at p. 1037; fns. omitted.)
Defendant claims that our conclusions in Jimenez and Glass have been undermined by the principles of statutory construction he offers in his opening brief to support his assertion that by amending section 269, the Legislature impliedly recognized that section 667.6, subdivision (d) did not apply to section 269 before 2006. However, none of the rules of statutory construction defendant attempts to invoke support his assertion. For example, defendant cites the rule that courts should give meaning to every word of a statute and avoid a construction making any word a surplusage. He then argues that the 2006 amendment to section 269 to incorporate the section 667.6, subdivision (d) requirement of consecutive sentences would be surplusage if the Legislature understood section 667.6, subdivision (d) already applied to section 269. This is not a correct application of the rule of avoiding surplusage. “‘[S]urplusage’ in this context means surplusage as to other statutory language, not as to some possible judicial interpretation.” (Reno v. Baird (1998) 18 Cal.4th 640, 658.)
Despite his purported invocation of rules of statutory construction, defendant is basically arguing that there was no reason for the 2006 amendment if section 667.6, subdivision (d) already applied to section 269 under existing law. However, repeating existing law in a statute “may eliminate potential confusion and avoid the need to research extraneous legal sources.…” (Reno v. Baird, supra, 18 Cal.4th at p. 658.) By amending section 269 in 2006, the Legislature apparently clarified and strengthened the law by making the enhanced punishment of section 667.6 directly part of the statute defining the crime of aggravated sexual assault on a child, instead of merely adding section 269 to the list of predicate offenses in subdivision (d) of section 667.6. In addition, the 2006 amendment also reduced the age difference between the victim and perpetrator from ten to seven years. (See § 269, subd. (a).) Thus, these statutory changes are consistent with statements of legislative and voter intent offered by defendant to show that the purpose behind the 2006 amendment was to strengthen and improve existing laws that punished child abusers. These changes, however, do not necessarily compel the conclusion that defendant urges; i.e., that a defendant convicted of section 269 was not subject to consecutive sentences under section 667.6, subdivision (d) prior to 2006.
Based on our reasoning in Jimenez and Glass, we agree with the conclusion that “Section 667.6, subdivision (d) was crystal clear, at the time defendant committed his crimes, in its application to the rapes that the jury in this case found beyond a reasonable doubt to have been committed. Therefore, consecutive sentencing was mandatory under that subdivision.” (Figueroa, supra, 162 Cal.App.4th at p. 100.)
II. One Strike Sentence
Defendant next contends the trial court erred in sentencing him under section 667.61, the “One Strike” law. He argues the trial court’s sentence on his section 288 forcible lewd act convictions was erroneous because he was not convicted of committing a qualifying offense against more than one victim. He argues that section 269 cannot be used to trigger the multiple victim provision of the One Strike law.
Respondent disagrees. Respondent points out that the One Strike law outlines the very same offenses that can constitute a violation of section 269. Thus, relying on our analyses in Jimenez and Glass discussed above, respondent argues the jury necessarily found the facts required to trigger the One Strike law when it found defendant guilty of section 269. As explained below, we agree with defendant that his conviction of section 269 did not trigger application of the One Strike law.
At the time of the offenses, section 667.61 provided in relevant part:
“(b) Except as provided in subdivision (a), a person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 15 years except as provided in subdivision (j).
“(c) This section shall apply to any of the following offenses:
“(1) A violation of paragraph (2) of subdivision (a) of Section 261.
“(2) A violation of paragraph (1) of subdivision (a) of Section 262.
“(3) A violation of Section 264.1.
“(4) A violation of subdivision (b) of Section 288.
“(5) A violation of subdivision (a) of Section 289.
“(6) Sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
“(7) A violation of subdivision (a) of Section 288, unless the defendant qualifies for probation under subdivision (c) of Section 1203.066. [¶] … [¶]
“(e) The following circumstances shall apply to the offenses specified in subdivision (c): [¶] … [¶]
“(5) The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim.” (Italics added.)
Here, the trial court sentenced defendant pursuant to subdivision (b), (e)(5) of section 667.61, which dictates a 15-year-to-life sentence when any offense enumerated in section 667.61, subdivision (c) has been committed against more than one victim. Defendant was convicted of violating section 288, subdivision (b) against R., and section 269, subdivision (a)(1) against D. Thus, the court sentenced defendant using the multiple victim enhancement of section 667.61, subdivisions (b) and (e)(5) on counts 5 and 6 (the § 288 convictions), apparently on the theory that convictions under sections 288 and 269 constituted crimes against more than one victim for purposes of section 667.61. However, while section 288 is expressly enumerated in subdivision (c) of section 667.61, section 269 is not.
While we agree with respondent that it is clear from reading the two statutes that the jury necessarily found defendant committed conduct that would constitute a violation of the statutes set forth in section 667.61, subdivision (c) when it found him guilty of section 269, that does not equate to defendant having been “convicted … [of] an offense specified in subdivision (c).” (§ 667.61, subd. (e)(5), italics added.) To the contrary, he was convicted of an offense expressly not specified in subdivision (c), that is, a violation of section 269. We need not look past the clear language of the statute to conclude section 269 does not trigger the One Strike law as written: section 667.61, subdivision (e)(5) requires a conviction of an offense that is specified in the statute and section 269 is not a specified offense. (See Preston v. Bd. of Equalization (2001) 25 Cal.4th 197, 213.)
Even in examining other rules of construction, however, we are not persuaded to a contrary conclusion. Instead, we are bound by the rule of statutory construction expressio unius est exclusio alterius: “The expression of some things in a statute necessarily means the exclusion of other things not expressed.” (Gikas v. Zolin (1993) 6 Cal.4th 841, 852.) Section 667.61, subdivision (c) expressly lists those statutory offenses subject to its penalties if committed against more than one victim, and section 269 is not listed. Further, section 667.71, the Habitual Sexual Offender statute, does expressly list section 269 as a triggering offense even though, like the One Strike law, it also lists offenses that are necessarily included in a violation of section 269. (§ 667.71, subd. (c)(13).) Thus, the Legislature has directly provided for the inclusion of section 269 in other statutes where it intended its inclusion. Our Supreme Court has even drawn attention to this fact when it pointed out in People v. Hammer (2003) 30 Cal.4th 756, 769, footnote 11, that certain violations “trigger the Habitual Sexual Offender law, but not the One Strike law,” and went on to state in no uncertain terms that section 269 was not a violation that would trigger the One Strike law. Further, sections 269 and 667.61 were passed together and listed as related legislation in the relevant committee notes, precluding the argument that the Legislature was simply unaware of section 269 when it passed section 667.61. (Assembly Committee on Public Safety, SB 26X, as amended May 25, 1994.)
Jimenez and Glass do not help respondent. As noted above, in Jimenez, supra, 80 Cal.App.4th 286, this court concluded that the omission of section 269 from section 667.6, subdivision (d), did not preclude trial courts from sentencing defendants convicted of section 269 violations under that statute. That decision did not focus, however, as we do now, on the requirement that a defendant must be convicted of a qualifying offense in order to make sentencing under that scheme appropriate. Similarly, in Glass, supra, 114 Cal.App.4th 1032, we concluded the omission of section 269 from the enumerated offenses of the section 12022.8 enhancement did not preclude punishment for the enhancement in a section 269 conviction. The statute at issue in Glass, however, was enacted prior to section 269 and, more importantly, section 12022.8 requires only a violation of the enumerated statutes, not a conviction. A person convicted of section 269 necessarily violated the statutes enumerated in section 12022.8; they were not necessarily convicted of them.
Respondent observes: “It is extremely difficult to imagine that in enacting the one-strike law, the Legislature meant to include those who committed forcible rape against an adult victim, but to exclude those same rapists if they instead victimized children under the age of 14 and more than 10 years younger than their assailant.” We are sympathetic to respondent’s observation. However, if this apparent incongruity was a legislative oversight it is for the Legislature to fix; we cannot insert language into a statute which is unambiguous. (See Code Civ. Proc., § 1858 [a court must not “insert what has been omitted”].)
III. Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence to support his conviction for attempted lewd acts against D. in count 4. Defendant’s argument is somewhat confusing because he acknowledges the record contains sufficient evidence to support the charge. Even though D. described only completed acts of rape in her testimony, defendant recognizes that section 663 allows for a defendant to be charged and convicted of an attempted crime, even if the evidence shows a completed crime. However, it is defendant’s position that the prosecutor did not intend for count 4 to refer to any of the completed acts shown on the record, and therefore the principle embodied in section 633 is inapplicable here. Defendant further claims that the prosecutor essentially conceded there was no evidence to support count 4, but the trial court improperly saved the count by tying it to one of the completed crimes. We find defendant’s argument unpersuasive, and conclude there was sufficient evidence to support count 4.
Section 663 provides: “Any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was perpetrated by such person in pursuance of such attempt, unless the court, in its discretion, discharges the jury and directs such person to be tried for such crime.”
In the amended information, count 4 alleged that defendant “did, on or about December 24, 2003 … commit a FELONY, namely, violation of Section 664/288(a) … in that the said defendant did willfully, unlawfully, and lewdly attempted to commit a lewd and lascivious act upon … [D.], a child under the age of fourteen years, with the intent of arousing, appealing to, and gratifying the lust, passions, and sexual desires of the said defendant and the said child.”
Here, there was evidence that during the third incident D. described in her testimony, defendant gave her a beer to drink and then put his penis inside her vagina. It was after this incident that D. reported defendant’s conduct to Pool. Although D. thought the third incident occurred around Thanksgiving, it was Pool’s recollection that it occurred around Christmas Eve, and both witnesses referred to the circumstance that Pool was preparing a turkey for the holiday meal. Defendant does not dispute, and we find, D.’s testimony describing a rape was more than sufficient to support defendant’s conviction of attempted lewd acts as charged in count 4.
Defendant nonetheless maintains that the prosecutor intended for count 4 to refer to an entirely different incident for which there was no evidence. We note that defendant’s interpretation of the prosecutor’s intent is based primarily on brief comments she made in response to the defense’s section 1118.1 motion at the end of the prosecution’s case-in-chief. The prosecutor expressed that she would be willing to dismiss count 4 because “That count the girls did not testify – they testified to only completed acts.” However, the trial court declined to dismiss count 4, explaining:
“The fact that it testified as to a completed act doesn’t in any way impact lesser included. I mean, the attempt. In fact, the defendant’s given a break that it was called an attempt as opposed to completed act. I mean the People could, of course, amend to conform to proof and then we’d have to re-do a bunch of the jury instructions, which we can do, you know. But the evidence is more than sufficient.”
Thus, the court correctly noted that evidence of a completed rape was sufficient to sustain the charge of attempted lewd acts. Defendant suggests the prosecutor’s failure to “accept the court’s invitation to move to conform to proof” is somehow an indication that the prosecutor was conceding that the evidence was insufficient to support count 4. However, the court clearly discouraged the prosecutor from taking this course of action by pointing out that the jury instructions would have to be redone and that the evidence was sufficient to support the count as charged in any event.
Nor do we find any special significance in the fact the prosecutor did not specifically ask the jury to return a guilty verdict on count 4 during closing argument. This does not necessarily constitute a concession that the evidence was insufficient to prove the crime of attempted lewd acts as defendant suggests. It is apparent from the record that the prosecutor was aware she had only presented evidence of three incidents of sexual abuse against D., not four as charged. It is reasonable to suppose she was hoping the jury would find those incidents supported the more serious offenses of aggravated sexual assault charged in the first three counts. However, this is not what happened. The jury acquitted defendant on the third count of aggravated sexual assault, and found defendant guilty of the first two counts of aggravated sexual assault and the fourth count of attempted lewd acts based on the three incidents described by D. in her testimony. The jury was properly instructed on the elements of the attempted lewd acts offense, and defendant does not dispute that her testimony was sufficient to support his conviction on that count. Accordingly, we reject his sufficiency of the evidence challenge which is based, not on the state of the evidence, but on the prosecutor’s alleged state of mind.
Although defendant refers to what he describes as D.’s generic testimony that defendant forced her to have sexual intercourse 30 or 35 times, this was not evidence that was presented by or relied on by the prosecution but rather consisted of statements elicited by the defense during cross-examination.
IV. Denial of a “Mixtec” Interpreter
During the proceedings which spanned a period of three years, defendant was aided by a Spanish interpreter. He also testified in Spanish at trial. For the first time at the sentencing hearing in March 2007, defendant’s newly retained counsel asserted that defendant did “not understand Spanish” but spoke “Musla Indian.” Defense counsel then asserted the proceedings should not go forward without a “proper interpreter.” The prosecutor objected that this was “asinine.” The trial court then denied the defense request for an “additional type of interpreter.” The court noted that defendant was convicted in August 2006, and that the matter had already been continued numerous times. The court expressed suspicion that defendant’s “new sudden” claim for a “new and different type of interpreter” was simply a “ploy” to delay the proceedings further. Defendant now contends the court abused its discretion in denying his request for a new interpreter and failing to conduct a hearing into defendant’s asserted need for a “Mixtec” interpreter. We disagree.
On appeal, defendant asserts that “this must be a transcription error or misstatement on the part of counsel; there is no such language as ‘Mus la,’ whereas Mixtec is an Indian language that is commonly spoken by Mexican immigrants in the Central Valley, particularly Madera County, where [defendant] lived and where this case was tried.” Defendant supports his assertion regarding the prevalence of the Mixtec language in Madera County with a UC Davis study and New York Times article. Otherwise, the record contains no evidence that defendant spoke the Mixtec language.
California Constitution, article I, section 14, provides in relevant part: “A person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings.”
To establish the necessity of an interpreter, the burden is on the defendant “to show that his understanding of English is not sufficient to allow him to understand the nature of the proceedings and to intelligently participate in his defense.” (In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1454.) Moreover, the “‘question of the necessity of an interpreter, as distinguished from the question of whether one should be appointed when the necessity is clear, is a matter for judicial determination over which the trial court is permitted to exercise its discretion.’ [Citations.]” (Id. at pp. 1455-1456.) “When evaluating a determination as to the necessity of appointing an interpreter, the policy of upholding a lower court’s decision based upon informed discretion is strong. The trial judge is in a unique position to evaluate the reactions and responses of the accused and to determine whether he or she does or does not require an interpreter in order to be adequately understood or in order to adequately understand the proceedings. This exercise of discretion should not be reversed unless there is a complete lack of any evidence in the record that the accused does understand English, thereby rendering the decision totally arbitrary.” (Id. at p. 1456; italics added.)
Here, of course, the issue is a little different because the question before us concerns defendant’s ability to understand Spanish, not English. It is undisputed that defendant did not understand English and that he had a Spanish interpreter throughout most of the proceedings. The record is replete with evidence that defendant understood Spanish and, therefore, we cannot find the court abused its discretion by denying defendant’s sentencing request for a different type of interpreter. As noted above, he testified in Spanish at trial and testified that he communicated with his wife in Spanish. The English-speaking victims also testified that defendant spoke Spanish at home and they understood and were able to communicate with him in that language. Pool also testified that defendant spoke Spanish. Furthermore, the record reflects that in February 2005, defendant underwent a psychological evaluation pursuant to section 288.1. The resulting report describes defendant as a “Spanish-speaking only, Hispanic man.” We are not persuaded by the two isolated incidents defendant now offers to show he had difficulty understanding Spanish. Given his demonstrated ability to understand Spanish during the majority of the proceedings, the trial court did not abuse its discretion by implicitly concluding defendant understood Spanish and did not require a new interpreter. It follows there was no due process violation.
When the prosecutor asked defendant on cross-examination his definition of sex, defendant gave a confusing and incomplete response. But there is no indication that his response was the result of an inability to understand Spanish as opposed to simply a desire to evade an uncomfortable line of questioning. The second incident defendant relies on occurred after his request for a new interpreter was denied. When the trial court admonished him about his rights to an appeal, defendant claimed he did not really understand what the court was saying. Again, there is no basis for concluding that his professed lack of understanding was based on an inability to understand Spanish rather than something else. Nor does defendant offer any authority for his assertion that these two incidents somehow sufficed to trigger a duty on the part of the trial court to hold an inquiry into defendant’s ability to understand the Spanish language. As seen above, the trial court has broad discretion in determining the necessity of an interpreter. There was not a complete lack of evidence in the record that defendant understood Spanish, and therefore the court did not abuse its discretion under the applicable legal principles.
V. Denial of New Trial Motion
After the jury rendered its verdict and prior to sentencing, defendant filed a written motion for a new trial on the ground of newly discovered evidence in the form of declarations from two women in their thirties claiming that prosecution witness Daniel Pool sexually molested them when they were children between the ages of four and 11. In his motion, defendant asserted: “Under Penal Code Section 1181(8), this testimony would be both material and tend to cast doubt on the testimony of the two victims in this case, as well as the testimony of Mr. Pool.” At the hearing on defendant’s motion, the parties submitted on the briefing. The trial court denied the motion, finding the evidence insufficient to warrant a new trial.
Defendant now claims the trial court abused its discretion in denying his motion for a new trial because there was a reasonable probability of a more favorable result. Defendant claims that the victims in this case had severe credibility problems and that the only circumstance that supported their credibility was their ability to describe defendant’s sexual acts in explicit detail. Thus, defendant argues the new evidence was relevant to show that the victims learned about sex acts from someone else and thereby provide an alternative explanation for the one circumstance that made their testimony against him convincing. Defendant emphasizes, however, that he is not offering Pool as a third party culprit, asserting: “The evidence of Pool’s pedophilia was relevant, not to show that Pool was the culprit in the charged crimes, but rather to show that the two girls had obtained their sophisticated knowledge of sex from Pool, the resident pedophile, which enabled them to convincingly concoct their accusation against [defendant].”
In short, defendant appears to be arguing that evidence Pool molested two girls in the past would be relevant and admissible to discredit the victims’ testimony in this case that they were sexually abused by defendant. We find defendant’s argument unpersuasive and find no abuse of discretion in the trial court’s denial of his new trial motion.
A new trial may be granted “[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial.” (§ 1181, subd. (8).) We review the trial court’s denial of a motion for a new trial for an abuse of discretion. (People v. Delgado (1993) 5 Cal.4th 312, 328.) Newly discovered evidence must be material, noncumulative, and must contradict the strongest evidence introduced at trial against the defendant. (Id. at p. 329.) To grant a new trial on the basis of newly discovered evidence, the evidence must make a different result probable on retrial. (People v. Beeler (1995) 9 Cal.4th 953, 1004-1005; People v. Delgado, supra, 5 Cal.4th at pp. 328-329.)
The proferred evidence does not meet this standard. The strongest evidence at trial was the victims’ firsthand accounts of defendant’s sexual abuse. The declarations defendant offered in support of his new trial motion contain nothing which contradicts or impeaches the victims’ testimony. To the extent the declarations were offered as impeachment evidence, the evidence went to Pool’s credibility only. (See People v. Massey (1987) 192 Cal.App.3d 819, 823 [“It is well established that child molesting in California law is a crime of moral turpitude for impeachment and other purposes”].) The circumstance that Pool might have molested two little girls decades earlier did not make it more or less likely that the victims here were telling the truth when they testified that defendant molested them in 2003.
Defendant recognizes that, as a general rule, “evidence which merely impeaches a witness is not significant enough to make a different result probable ....” (People v. Huskins (1966) 245 Cal.App.2d 859, 862 (Huskins.) However, he points to Huskins, a case in which impeachment of the main prosecution witness was considered sufficient to warrant a new trial. In Huskins, the Second District Court of Appeal reversed the trial court’s denial of a motion for a new trial based on newly discovered evidence. Huskins involved a child molestation case in which it was discovered that the chief prosecution witness, the victim’s foster mother, Mrs. White, had accused her own husband in civil commitment proceedings of being a sex pervert who had attacked his daughter and had sex with animals. In ruling that it was error for the trial court to deny the motion for a new trial, the Court of Appeal portrayed the new evidence as doing “more than merely impeach the main prosecution witness – it tends to destroy her testimony by raising grave doubts about her veracity and credibility.” (Id. at pp. 862-863.) This case is distinguishable. Pool was not the main prosecution witness. The main prosecution witnesses here were the victims themselves. The new evidence presented by defendant, while potentially impeaching Pool, had no bearing on the victims’ credibility in this case.
These were unproved accusations. (Huskins, supra, 245 Cal.App.2d at p. 861.)
We are also unconvinced by defendant’s theory that evidence of Pool’s asserted propensity to sexually abuse young girls would be relevant to show that the victims obtained their knowledge of sex from being molested by Pool. People v. Daggett (1990) 225 Cal.App.3d 751 (Daggett), on which defendant relies, is distinguishable. In that case, the defendant brought a motion under section 782, seeking to introduce evidence that the alleged victim had been molested at an earlier time by two older children and had in turn been charged with molesting two children. (Daggett, supra, 225 Cal.App.3d at p. 754.) The trial court found the defense offer of proof insufficient to hold a hearing on the prior victimization, although it allowed the victim to be questioned about his own offenses of molesting children. (Ibid.) At trial, the victim described the defendant’s alleged acts of touching, sodomy, and oral copulation. (Ibid.)
The appellate court concluded that the court erred in failing to hold a hearing to determine whether the acts committed previously against the victim were sufficiently similar to the acts alleged against the defendant. (Daggett, supra, 225 Cal.App.3d at p. 757.) The court stated, “[a] child’s testimony in a molestation case involving oral copulation and sodomy can be given an aura of veracity by his accurate description of the acts. This is because knowledge of such acts may be unexpected in a child who had not been subjected to them. In such a case it is relevant for the defendant to show that the complaining witness had been subjected to similar acts by others in order to cast doubt upon the conclusion that the child must have learned of these acts through the defendant. Thus, if the acts involved in the prior molestation are similar to the acts of which the defendant stands accused, evidence of the prior molestation is relevant to the credibility of the complaining witness and should be admitted.” (Ibid.)
Here, the prior acts of molestation by Pool did not involve the victims in this case, and thus Daggett does not appear to be direct authority for defendant’s argument that the new evidence was admissible to show the victims acquired their knowledge of sex acts from him. Moreover, the acts described by Pool’s alleged victims, while undeniably disturbing, were not as egregious as those attributed to defendant by the victims in this case. However, even assuming the new evidence bolstered R.’s claim that Pool molested her, it does not necessarily follow that defendant did not molest her. She claimed she was molested by both men. Moreover, there is no evidence that R. told D. about her alleged prior experiences with Pool. Defendant’s theory that R. confided to D. what she learned from being molested by Pool, and that they then used that knowledge to fabricate charges against defendant is speculative and unsupported by the record or the evidence offered in support of the new trial motion.
The sexual acts described by Pool’s alleged victims included “touching to [the] victim’s private parts” and “rubbing his penis on [the victim’s] butt and … vagina” but no actual intercourse as defendant’s victim’s described. According to one of the victims, Pool told her that when she grew hair, “he would give it all to [her].” Defendant suggests a similarity between this language and the colloquial expressions used by the victims in this case to describe defendants’ sexual acts to law enforcement officials and interviewers.
We are also unconvinced by defendant’s assertion that evidence of Pool’s prior molestations would be admissible under Evidence Code section 1108. Evidence Code section 1108, subdivision (a) provides: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (Emphasis added.)
Defendant acknowledges that Evidence Code section 1108 applies by its terms to “the defendant,” but claims the California Supreme Court had impliedly recognized that Evidence Code section 1108 “would allow admission of a third party’s prior sex crime.” People v. Abilez (2007) 41 Cal.4th 472 (Abilez), on which defendant relies, does not support this assertion. Unlike Pool, the so-called third party in Abilez was a co defendant and he and the defendant were both charged with the same sexual offense – forcible sodomy – but the co defendant was acquitted and the defendant was convicted of the crime. (Abilez, supra, 41 Cal.4th at pp. 472, 485.) At trial, the defendant offered his co defendant's adjudication of a prior sex crime as evidence of identity; i.e., to show that it was the co defendant who sodomized and killed the victim. (Id. at p. 502.) The Supreme Court concluded that the trial court did not abuse its discretion under Evidence Code sections 1101 and 1108 by excluding the prior crime because it was remote and dissimilar to the charged crime. (Abilez, supra, 41 Cal.4th at pp. 502-504.) It also rejected the defendant’s “subsidiary claim that the trial court erred in excluding the evidence because it comprised evidence of third party culpability.” (Abilez, supra, 41 Cal.4th at p. 502; italics added.) Abilez simply does not support defendant’s position that the evidence of a non-defendant, third party’s prior molestations would be admissible under Evidence Code section 1108.
For all these reasons, we conclude that defendant has not shown the trial court abused its discretion in denying his motion for a new trial based on newly discovered evidence.
DISPOSITION
The sentences on counts 5 and 6 are vacated and the matter is remanded to the trial court for re sentencing consistent with this opinion. In all other respects, the judgment is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., GOMES, J.