Opinion
C088413
04-13-2020
THE PEOPLE, Plaintiff and Respondent, v. RODRIGO MENDEZ GOVEA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CR001780)
Defendant Rodrigo Mendez Govea sexually abused two boys, both relatives of his. After a jury found defendant guilty of multiple counts of aggravated sexual assault of a child and one count of forcible lewd act on a child, the trial court sentenced defendant to a total term of 70 years to life. On appeal, defendant contends: (1) his constitutional rights were violated when a police officer testified regarding defendant's statements and conduct during a police interview, which occurred with the help of an "unqualified" Spanish interpreter; (2) trial counsel rendered ineffective assistance by failing to object to the officer's testimony; (3) his conviction on one count of aggravated sexual assault (count IV) should be reversed, because there was not substantial evidence that he accomplished the crime by force or duress; (4) his sentence for forcible lewd act on a child (count V) should be reduced, because, at the time of the offense, the sentencing triad for the crime provided for lesser punishment.
We reject the first two claims and agree with the latter two. Accordingly, we conclude: (1) defendant's first claim is forfeited on appeal; (2) defendant has failed to demonstrate ineffective assistance of trial counsel; (3) the conviction on count IV should be modified to a lesser included offense; and (4) the sentence for count V should be vacated. We will remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
I
Charged Conduct And Family Gathering In 2017
In 1999, when J. M. was around 10 years old, he and his mother moved to defendant's residence in Corning, California, for "a month or two," while J. M.'s parents separated. On the first day of the move, J. M. and defendant were alone in defendant's residence when defendant, who was "at least 40" years old, "slowly started . . . touching" J. M.'s "crotch area."
"A couple weeks" later, as J. M. and his 11-year-old friend were roughhousing in defendant's home, defendant grabbed the boys' crotches. J. M.'s friend left immediately after the incident, and their friendship ended.
The third and last time that defendant molested J. M. was a few weeks after the incident with J. M.'s friend. Defendant and J. M. were in defendant's bedroom one night, when defendant removed J. M.'s belt, pants, and underwear, rubbed J. M.'s penis, and then put his mouth over J. M.'s penis. J. M. "pushed [defendant] off and told him to stop," and threatened to tell defendant's mother, who was also J. M.'s aunt.
J. M. testified that before defendant began molesting him, J. M. thought defendant "was a good guy," "friendly and nice."
Ten years after defendant molested J. M., he molested J. M.'s nephew on multiple occasions. A. M. was the son of J. M.'s older brother. A. M. changed residences often in his childhood, and sometimes lived with his father's family in Corning. A. M.'s father's family lived next door to defendant in the relevant time in 2009 or 2010, when A. M. was about 10 years old.
A. M. understood defendant to be "just the neighbor, distant family member." A. M. went to defendant's house to play video games "every other day or so" for "a week straight."
One morning, having fallen asleep while playing video games the night before in defendant's home, A. M. awoke to find defendant grabbing his penis and trying to kiss him. Defendant pulled A. M.'s pants down, sucked A. M.'s penis, and then pulled his own pants down and forced his penis into A. M.'s mouth. Defendant told A. M. that "if [A. M.] said anything that [defendant] [would] do it to [A. M.'s] younger brother as well."
A day or two later, defendant pulled A. M. into defendant's bathroom, forced his erect penis into A. M.'s mouth, and then made A. M. take a shower with him.
Within two days of the second incident, defendant pulled A. M. into defendant's bedroom, played a pornographic video on his television, and sodomized A. M. A. M. moved away from Corning soon after this last incident.
The next time A. M. saw defendant was in 2017, when to A. M.'s surprise, defendant came to a large gathering in Corning in connection with A. M.'s father's funeral.
Several family members observed A. M.'s strong negative reaction to defendant's presence at the gathering, including a cousin from Fresno, C. S., who testified that A. M. was her "nephew or cousin[]," and she and J. M. were cousins who were "very close" because they "grew up together." C. S. understood defendant to be "somewhat related like a far distance relative from" her.
C. M., A. M.'s cousin and J. M.'s niece, was also at the 2017 gathering and observed A. M.'s reaction upon seeing defendant. She described defendant as her "mom's cousin," who she "saw . . . a couple of times, but didn't really socialize with."
C. M. "grew up together" with A. M., and agreed that her relationship with A. M. was "pretty close." J. M. "lived with [C. M.] pretty much until [she] moved out" of her family's home.
II
Trial And Sentencing
Defendant testified that he moved to Corning in 1999, and that J. M. was never inside defendant's house in Corning and that he never touched J. M. or A. M. in a sexual manner.
In rebuttal, the prosecution called Officer Matthew Hewitt, who testified that he interviewed defendant in 2017 with the help of a volunteer interpreter. Hewitt asked defendant questions in English, and the interpreter conveyed the questions to defendant in Spanish. The interpreter conveyed defendant's Spanish-language responses to Hewitt in English.
Hewitt testified that, in the interview, defendant told Hewitt that J. M. indeed had been inside defendant's house. Hewitt further testified that defendant "kept smiling and laughed a couple of times and just was easygoing" during the interview.
Hewitt arrested defendant at the end of the interview and told defendant that he was being arrested for multiple "lewd and lascivious acts." Defendant "shook his head up and down indicating yes in an affirmative action while smiling," giggled, and said (in Spanish) to Hewitt: "prove it."
On cross-examination, Hewitt admitted that the interpreter was not a professional interpreter, and not an employee of the police department, but simply "one of [the] volunteers." The following question-and-answer sequence occurred:
"[Defense counsel]: Was [the interpreter] translating throughout the entire interview word for word or was he engaging in his own side conversations with the defendant?
"[Officer Hewitt]: He would speak with the defendant due to answers the defendant gave.
"[Defense counsel]: So there was some back and forth between [the interpreter] and the defendant and then [the interpreter] would summarize . . . what they talked about?"
"[Officer Hewitt]: Correct.
"[Defense counsel]: So that is a little different from . . . the way it works in court here where it is a close word for word and realtime as possible?
"[Officer Hewitt]: Correct.
"[¶] . . . [¶]
"[Defense counsel]: [I]sn't it true [defendant] throughout the interview frequently had difficulty answering the questions appropriately as if he didn't understand some of the questions?
"[Officer Hewitt]: There is a few questions, yes.
"[Defense counsel]: When you described his demeanor as smiling throughout the interview, couldn't that just as well be described as he was being cooperative and forthcoming and in talking to you for quite a long time?
"[Officer Hewitt]: Yes, that is another way of looking at it."
The defense did not call any witnesses in surrebuttal.
The jury found defendant guilty on four counts as to A. M. and one count as to J. M. Regarding A. M.: one count of sodomy (aggravated sexual assault of a child) (count I), two counts of oral copulation (aggravated sexual assault of a child) (counts II and III), and one count of forcible lewd conduct on a child (count V). Regarding J. M., one count of oral copulation (aggravated sexual assault of a child) (count IV).
The trial court sentenced defendant to a term of 70 years to life, consisting of four consecutive terms of 15 years to life on counts I through IV, and a consecutive term of 10 years on count V, which the trial court characterized as "[t]he aggravated term."
Defendant timely appealed.
DISCUSSION
I
Defendant's Statements In The Police Interview And Effectiveness Of Trial Counsel
On appeal, defendant argues that his "federal constitutional rights to a fair trial, to confrontation and to due process, as well as his California right to an interpreter" were violated when Officer Hewitt recounted to the jury defendant's statements and conduct during the police interview, as the interpreter was "an unidentified, unqualified 'volunteer' whose ability to translate was questionable" and who merely summarized defendant's answers to Hewitt's questions. Anticipating the People's contention that this claim is forfeited on appeal because trial counsel did not object, defendant argues that trial counsel rendered ineffective assistance by failing to "investigate and/or challenge the interpretive services provided" and failing to "move[] to strike all testimony regarding" defendant's police interview.
California Constitution, article I, section 14, provides, in part, "A person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings."
The People argue that defendant forfeited his claim by failing to object at trial.
On the merits, the People argue defendant's right to an interpreter under the California Constitution was not implicated during the police interview, because the right is limited to judicial proceedings. The People further argue that the record on appeal cannot support a conclusion "that the interpreter's qualifications were inadequate or . . . the translation in this case" was "either inadequate or inaccurate as to violate due process."
As for the claim of ineffective assistance, the People argue defendant: (1) cannot show deficient performance, as "[n]othing in the record suggests that counsel did not investigate the qualifications of the volunteer translator," and (2) cannot show prejudice from any hypothetical deficient performance, because "[t]he heart of the prosecution case was the testimony of the two victims."
We conclude defendant's claim is forfeited on appeal, and because defendant has not demonstrated ineffective assistance of trial counsel, we will not consider it.
"As a general rule, a defendant's failure to object to an alleged trial error relieves an appellate court of the obligation to consider the claim on review. [Citation.] The reason for this rule is to allow the trial court to correct its errors and 'to prevent gamesmanship by the defense.' [Citation.] [The California Supreme Court] ha[s] applied this rule numerous times to find forfeiture of a constitutional right." (People v. Arredondo (2019) 8 Cal.5th 694, 710.) But if defendant can demonstrate ineffective assistance of trial counsel, an appellate court can review an otherwise forfeited claim on direct appeal. (Id. at p. 711.)
To prevail on a claim of ineffective assistance of counsel on direct appeal, "defendant must show, among other things, that his 'counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms.' [Citation.] In evaluating [such a] claim, we 'defer[] to counsel's reasonable tactical decisions' and presume that 'counsel acted within the wide range of reasonable professional assistance.' [Citation.] Thus, defendant ' "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " ' [Citation.] His burden in this regard 'is difficult to carry' . . . [on] a direct appeal [where the] record does not disclose the reason for counsel's failure to object. [Citation.] For those reasons, we may reverse 'only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.' [Citations.] This rule 'is particularly apt' where, as here, 'the asserted deficiency arises from defense counsel's failure to object. "[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance." ' " (People v. Arredondo, supra, 8 Cal.5th at p. 711.)
In Arredondo, the Supreme Court ruled defendant "failed to carry his burden" to show ineffective assistance of trial counsel on direct appeal, "because counsel was not asked why he failed to object, the record d[id] not affirmatively disclose that counsel had no rational tactical purpose for the omission, and [the court was] not convinced there [was] no satisfactory explanation." (People v. Arredondo, supra, 8 Cal.5th at p. 711.) Specifically, the court speculated that trial counsel "could have concluded . . . that any benefit from" objecting to what may have been improper trial procedure "did not outweigh the risk of upsetting [the testifying victims] during their testimony and arousing sympathy for them with jurors that might work to defendant's detriment and prejudice his case." (Id. at pp. 711-712.)
The trial court "positioned a computer monitor so" minor victims of defendant's sex offenses "could not see defendant and he could not see them" while they testified. (People v. Arredondo, supra, 8 Cal.5th at p. 696.)
Similarly here, there is no indication that trial counsel was asked why he failed to object, the record does not affirmatively disclose that counsel had no rational tactical purpose in not objecting, and we are not convinced there was no satisfactory explanation. As in Arredondo, trial counsel here could have concluded that any benefit from objecting (to Officer Hewitt's testimony regarding defendant's statements and conduct during the interview) did not outweigh the risk that the objection would work to defendant's detriment (if, for example, after a successful objection to Hewitt's testimony by defense counsel, the prosecutor had the interpreter testify regarding his recollection of defendant's statements and/or his language skills and the circumstances of the interpretation, thereby potentially strengthening the prosecution's case). (Cf. Correa v. Superior Court (2002) 27 Cal.4th 444, 448-450, 465-466 [when police officers who did not understand Spanish received statements "through contemporaneous translations provided by apparently unbiased bystanders" who acted as interpreters "during the officers' investigation" and who "testified . . . regarding their language skills and the circumstances of the translation," the statements did not interpose a layer of hearsay, even if an interpreter "may not have given a word-for-word translation" but "did not add anything or leave anything out"].)
In other words, counsel may have made the tactical choice that it was better not to object and possibly bring about detrimental testimony by the interpreter, calculating that it was preferable to leave the jury with lingering concerns as to the accuracy of Officer Hewitt's description of defendant's statements, which counsel may have hoped he created on cross-examination of Officer Hewitt by raising the possibilities that: (1) defendant did not understand some of the questions Officer Hewitt posed to him; and (2) the volunteer interpreter's services fell short of professional standards aspired to in courtroom settings.
It is plausible the interpreter could have provided context -- to the prosecution's benefit -- concerning Officer Hewitt's testimony regarding his impression that there were "back and forth[s] between [the interpreter]" and defendant, followed by the interpreter's "summar[y]" of "what they talked about." The interpreter might have insisted that he "translated accurately," and that he "did not add anything or leave anything out, although he may not have given a word-for-word translation." (Correa v. Superior Court, supra, 27 Cal.4th at p. 450.)
Accordingly, because trial counsel did not object to Officer Hewitt's testimony, and because we are not convinced there is no satisfactory explanation, defendant's claim is forfeited on appeal, and we will not consider it.
II
Sufficiency Of The Evidence Of "Duress" For Count IV (Victim J. M.)
On appeal, defendant argues that his conviction on count IV (aggravated sexual assault of J. M.) should be reversed, because "there simply is no . . . proof" that he "accomplished by force or duress" the act of oral copulation of J. M. J. M.'s testimony "includes no mention of force having been used against him" when defendant orally copulated him, defendant maintains.
The People concede there is not substantial evidence defendant used "force" to orally copulate J. M. but argue the conviction on count IV should not be reversed, because defendant "used duress or psychological coercion to accomplish" the offense. Specifically, the People contend that J. M. "was in a vulnerable position, with his parents recently splitting up and his mother and him" moving out of their home to live with defendant, who "used [J. M.'s] vulnerable position to his advantage, isolating him and then comforting him about his parents while simultaneously sexually abusing him." Defendant, "who the family considered an uncle, was in a position of trust and authority," and used "the power differential between" J. M. and himself, a "father figure," to accomplish the offense, the People maintain.
We conclude there is not substantial evidence that defendant used duress to orally copulate J. M., and therefore reverse the conviction on count IV.
We accept the People's implicit concession that the record does not support a finding that defendant used "force" to accomplish count IV, as the record contains no evidence of "physical force that [wa]s ' "substantially different from or substantially greater than that necessary to accomplish the lewd act itself." ' " (People v. Alvarez (2009) 178 Cal.App.4th 999, 1004.)
At the time of the offense (December 10, 1997 to December 9, 1999), Penal Code section 269 provided, in relevant part:
"(a) Any person who commits any of the following acts upon a child who is under 14 years of age and 10 or more years younger than the person is guilty of aggravated sexual assault of a child: [¶] . . . [¶] (4) Oral copulation, in violation of Section 288a, when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." (Former Pen. Code, § 269, subd. (b), italics added.)
Factors that may support a finding the relevant sexual assault was committed by duress, include "the victim's age, [the victim's] relationship to the perpetrator, threats to harm the victim, physically controlling the victim when the victim attempts to resist, warnings to the victim that revealing the molestation would result in jeopardizing the family, and the relative physical vulnerability of the child. [Citations.] The fact that the victim testifies the defendant did not use force or threats does not preclude a finding of duress. [Citation.] When the victim is young and is molested by [the victim's] father in the family home, duress will be present in all but the rarest cases." (People v. Thomas (2017) 15 Cal.App.5th 1063, 1072-1073.)
Where the sufficiency of evidence for a conviction is challenged on appeal, we review the record in the light most favorable to the judgment, to determine whether it discloses substantial evidence. (People v. Snow (2003) 30 Cal.4th 43, 66.) Substantial evidence 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." (Ibid.) From the evidence, we draw all inferences supporting the jury's verdict. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.)
Here, when J. M. was around 10 years old, and on the first day that he moved to defendant's residence while his parents were separating, defendant (about 40 years old) touched J. M.'s crotch area. Then a few weeks later, defendant grabbed J. M.'s crotch while J. M. was roughhousing with a friend. After a few more weeks, the incident giving rise to count IV occurred in defendant's bedroom one night, when, after defendant removed J. M.'s belt, pants, and underwear, rubbed J. M.'s penis, and put his mouth over J. M.'s penis, J. M. "pushed [defendant] off and told him to stop." Before defendant began molesting him, J. M. thought defendant "was a good guy," "friendly and nice."
That J. M. was 10 and defendant was 40 is significant, but without more, is not enough to support a finding that defendant accomplished the oral copulation of J. M. by means of duress, and the People do not so contend. (Cf. People v. Soto (2011) 51 Cal.4th 229, 246 [noting that "the legal definition of duress is objective in nature" and "the focus must be on the defendant's wrongful act, not the victim's response to it"].)
The People argue that there was more. Relying on Cochran and Pitmon, the People argue defendant leveraged J. M.'s vulnerable position (mainly the emotional turmoil of J. M.'s parents' divorce and J. M.'s move to defendant's house) and defendant's "position of trust and authority" as a "father figure." (People v. Cochran (2002) 103 Cal.App.4th 8; People v. Pitmon (1985) 170 Cal.App.3d 38.) The People's position is unpersuasive because there is no evidence defendant created or exacerbated J. M.'s vulnerability (by, for example, threatening J. M. in any way) and the record does not support the People's characterization of defendant's relationship to J. M.
By contrast, there is evidence defendant made threats to A. M. to accomplish some offenses. Defendant told A. M. that defendant would "do it" to A. M.'s younger brother if A. M. "said anything" about the molestations, and then molested A. M. two more times.
A
J. M.'s "Vulnerable Position"
To the extent that J. M.'s vulnerable position hindered J. M.'s ability to resist defendant's molestations, that state of affairs will not support a finding of duress unless there was also evidence that defendant did something to cause J. M.'s vulnerable position. In People v. Espinoza (2002) 95 Cal.App.4th 1287, the court explained that "[w]hile it was clear that [the victim] was afraid of defendant, no evidence was introduced to show that this fear was based on anything defendant had done other than to continue to molest [the victim]. It would be circular reasoning to find that [the victim's] fear of molestation established that the molestation was accomplished by duress based on an implied threat of molestation." (Id. at p. 1321.) Espinoza illustrates that fear alone does not establish duress; the fear must be based on something the defendant does or says, i.e., an express or implied threat by the defendant. Similarly, a victim's vulnerability alone does not establish duress if it is not based on something the defendant does or says.
For this reason, the People's reliance on Cochran and Pitmon is misplaced. In Cochran, the victim was nine years old and was molested by her father, with whom she resided. (People v. Cochran, supra, 103 Cla.App.4th at p. 15.) The appellate court concluded that "given the age and size of the victim, her relationship to the defendant, and the implicit threat that she would break up the family if she did not comply," there was evidence of duress. (Id. at p. 16.) Similarly, in Pitmon, there was sufficient evidence to sustain the defendant's conviction for a lewd and lascivious act by duress based on the victim's young age, the physical size difference between the eight-year-old victim and the adult defendant, and the isolated location in which the sex act took place. (People v. Pitmon, supra, 170 Cal.App.3d at p. 51.) In both cases, the defendants did an affirmative act, whether it be to isolate or to impliedly threaten the victims, in addition to taking advantage of unalienable characteristics. There is no evidence defendant did that here.
Accordingly, the record does not support a finding of duress based on J. M.'s vulnerability.
B
J. M.'s Relationship With Defendant
As a preliminary matter, we note the relevant inquiry is J. M.'s relationship with defendant, which is distinct from, and narrower than, the question of defendant's social position in "the family" more broadly, which the People contend was one of "consider[ation] as an uncle."
The record is sparse regarding the relationship between J. M. and defendant at the time of defendant's molestation of J. M.: J. M. considered defendant "a good guy" who was "friendly and nice." Contrary to the People's position, that is not substantial evidence defendant used a "position of trust and authority" as a "father figure" to accomplish count IV.
Even if we were to consider defendant's status in "the family" more broadly in analyzing the nature of J. M.'s relationship with defendant, the record would not support the People's portrait of defendant as a "trust[ed]" "father figure."
Rather, the testimony of A. M. and two other family members reflects that defendant was a distant relative with whom their branch of the family did not regularly socialize.
Accordingly, the record does not support a finding of duress based on J. M.'s relationship with defendant.
Based on the foregoing, we conclude there was not substantial evidence to support count IV. Although we must reverse the aggravated sexual assault conviction, Penal Code section 1181, case 6 authorizes us to reduce it to the lesser offense of oral copulation with another person who was under 14 years old and more than 10 years younger than the perpetrator. (See People v. James (2014) 230 Cal.App.4th 1256, 1265.)
"When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed."
III
Sentence On Count V
Defendant contends that because the version of Penal Code section 288, subdivision (b)(1) in effect when defendant committed the offense of forcible lewd act on A. M. imposed a determinate sentencing range of three, six, or eight years, the trial court erred when it imposed a sentence of 10 years on count V. The People concede. We agree.
Ex post facto provisions of the California and federal Constitutions mandate sentencing a defendant under the scheme that existed at the time he committed his crime, if a later sentencing scheme exposes defendant to greater punishment. (See People v. Riskin (2006) 143 Cal.App.4th 234, 244.)
Here, the sentencing triad for a violation of Penal Code section 288, subdivision (b)(1) was three, six, or eight years at the time defendant molested A. M., but five, eight, or 10 years, at the time of sentencing. (See Stats. 2010, ch. 219 § 7.) Accordingly, the trial court erred when it imposed the upper term of 10 years on count V.
The parties agree that we should correct the sentence on count V by reducing it to eight years. But because we are remanding for resentencing on count IV, and in light of the " 'full resentencing' " rule (People v. Buycks (2018) 5 Cal.5th 857, 893), we believe the better course is to direct the trial court to impose a proper sentence on count V on remand.
DISPOSITION
Defendant's conviction on count IV is modified to commission of oral copulation with another person who was under 14 years old and more than 10 years younger than defendant (former Pen. Code, § 288a, subd. (c)(1)). The sentence on count V is vacated. The matter is remanded for resentencing. In all other respects, the judgment is affirmed.
/s/_________
Robie, J. We concur: /s/_________
Raye, P. J. /s/_________
Butz, J.