Opinion
G058003
10-20-2020
THE PEOPLE, Plaintiff and Respondent, v. OSVALDO RODRIGUEZ PEREZ, Defendant and Appellant.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Adrienne S. Denault and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16NF2962) OPINION Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Adrienne S. Denault and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Osvaldo Rodriguez Perez of sexual intercourse, oral copulation, and sexual penetration with a child 10 years or younger, plus three counts of lewd acts upon a child under 14. The court sentenced him to 70 years to life in prison.
Defendant argues the court erred by (1) excluding evidence of a telephone call between defendant and the mother of one of the victims, in which defendant denied her allegations; but (2) admitting evidence of a telephone call between defendant and the mother of the other victim, in which defendant admitted touching the other victim. We conclude the court did not err and, in any event, any error was harmless.
Defendant also argues the court erred by failing to instruct the jury on attempted sexual penetration with a child 10 years or younger as a lesser included offense. Again, we conclude the court did not err. Accordingly, we affirm.
FACTS
Defendant resided in La Habra, near the homes of his wife's sister L.F., and his wife's brother (brother). L.F. lived with her daughter, K.R., and brother lived with his girlfriend M.F., and their daughter, J.F. K.R., and J.F., as well as other family members, frequently spent time at defendant's home, including before and after school.
In 2016, when K.R. was five years old, she told L.F. that defendant had pulled her pants down and touched her vagina. K.R. also said J.F., who was nine, knew about this behavior as well. L.F. went to brother and M.F.'s home, and together with L.F.'s then-boyfriend's mother (who was a nurse), questioned J.F. J.F. told the adults K.R.'s allegations were true.
L.F. then called the police, who arranged for forensic interviews of K.R. and J.F. In her interview, K.R. told the interviewer she got into defendant's bed, after which defendant pulled down his pants and underwear and pulled down K.R.'s pants and underwear, and then put his penis on her vagina. K.R. also told the interviewer defendant put K.R.'s mouth on his penis, and he had done this many times. K.R. also told the interviewer defendant spat on his finger and touched her vagina, and touched her breasts and buttocks.
A third alleged victim was also interviewed, but the jury could not reach a verdict as to the charges related to her allegations, and the prosecution subsequently dismissed those charges. So, we do not discuss the third alleged victim or her allegations.
In her interview, J.F. told the interviewer defendant picked her up, carried her to his room, placed her on his bed, then grabbed her hand and put it on his penis. J.F. said this happened on two occasions. J.F. also told the interviewer defendant on one occasion pulled her pants off.
The police arranged for M.F. and L.F. to make "pretext calls" to defendant, seeking to elicit a confession or evidence of abuse. In the first call, from M.F., defendant gave some form of denial. In the second call, from L.F., defendant admitted touching K.R. on one occasion, but denied some of the specifics of K.R.'s allegations.
No transcript of this conversation is in the appellate record, but the parties seem to agree, in general terms, that defendant gave M.F. a denial of some sort.
At trial, the court admitted evidence of L.F.'s incriminating telephone call with defendant about K.R. over defendant's objection. In response, defendant sought to introduce evidence of M.F.'s exculpating phone call with defendant, but the court excluded it as hearsay and as being more prejudicial than probative. (Evid. Code, § 352 (§ 352).)
All statutory references are to the Evidence Code.
K.R. testified largely consistent with her forensic interview, except she could not remember certain details, and she denied defendant put his finger in her vagina. J.F. testified consistent with her forensic interview.
Two of defendant's children and their babysitter testified they had not seen defendant do anything inappropriate. Defendant's expert witness, a professor of psychology, testified about the suggestibility of children in general and also testified that the forensic interview with J.F. might have tainted J.F.'s testimony through suggestion.
The jury convicted defendant of sexual intercourse, oral copulation and sexual penetration with a child 10 years or younger, and one count of lewd act upon a child under 14 (all as to K.R.); and two counts of lewd act upon a child under 14 (as to J.F.). Defendant timely appealed.
DISCUSSION
1. The Excluded Pretext Call
Defendant contends the court erred by excluding the pretext call between M.F. and defendant, in which he denied M.F.'s accusation. "We review a trial court's decision to exclude evidence for abuse of discretion." (People v. Peoples (2016) 62 Cal.4th 718, 745 (Peoples).) As noted, the court excluded this call on hearsay and section 352 grounds. We examine each in turn.
Defendant argues the court erred because the excluded evidence was admissible under section 1202 (§ 1202), a hearsay exception which permits introduction of an out of court statement to attack the credibility of the declarant when the statement is inconsistent with another out of court statement made by the same declarant and admitted to evidence. This rule applies even to a defendant's own out of court denials, introduced to rebut a confession by attacking his own credibility. (People v. Baldwin (2010) 189 Cal.App.4th 991, 1002-1005, disapproved on another ground in People v. Black (2014) 58 Cal.4th 912, 919.) Here, defendant sought to introduce his denial to M.F. in order to attack his own credibility in confessing to L.F. He argues this evidence fell within section 1202 under Baldwin.
The prosecution counters that defendant's denial to M.F. is not inconsistent with his confession to L.F., arguing the two calls addressed separate allegations specific to the two different victims. Defendant, in turn, asserts in his reply brief that an "inconsistent" statement under section 1202 is the same as an "inconsistent" statement under sections 1235 and 770. Those sections deal with "inconsistent" statements of trial witnesses and cover any statement that has "'"a tendency to contradict or disprove"'" another statement "'"or any inference to be deduced from it."'" (People v. Cowan (2010) 50 Cal.4th 401, 502.)
Unfortunately, our review on this point is hampered by the inadequate record provided to us. We have no recording or transcript of the disputed phone call, and no detailed account of its contents. Instead, we have only generalized descriptions of the call by the prosecutor and defense attorney, which are inadequate for us to consider the precise nature of the allegations made by M.F. or defendant's denials of them.
Because, "it is the appellant's burden to affirmatively demonstrate error," in the absence of an adequate record, we can only fall back upon the basic rule that "the judgment challenged on appeal is presumed correct." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) The trial court, apparently having reviewed the transcript, was in a better position than we are to determine whether the two statements were "inconsistent." We therefore cannot conclude the trial court erred by excluding this evidence, regardless of how we might interpret the word "inconsistent."
Even if the excluded evidence was admissible under section 1202, the trial court also concluded it was more prejudicial than probative under section 352. Again, no error appears. Defendant's denial had little probative value, as even under his theory it was "admissible solely to attack the credibility of the defendant as a declarant in the party admissions used against him." (People v. Baldwin, supra, 189 Cal.App.4th at p. 1005.) And as a practical matter, defendant's earlier denial would have little or no effect in impugning his credibility with respect to his later confession.
Plus, there is an important difference between the facts in this case and the facts in Baldwin. In Baldwin, the defendant sought to attack his own credibility in "boasting" to a fellow gang member and co-conspirator in jail about a shooting; whereas here, defendant is seeking to attack his own credibility in partially confessing to the mother of one of the victims. (People v. Baldwin, supra, 189 Cal.App.4th at p. 1006.) Thus, in Baldwin, the defendant could plausibly argue he was exaggerating to improve his credibility with his fellow gang members, but no comparable explanations exist in this case. This difference also limits the probative value of the excluded pretext call.
Meanwhile, admission of the excluded evidence could prejudice the prosecution because it would essentially allow defendant to testify without being cross-examined. And, even if a limiting instruction had been given, as defendant urges, there was a possibility that the jury would consider the denial for its truth on the ultimate issue, rather than simply as a challenge to the defendant's credibility. So, we conclude the court was within its discretion to determine this potential prejudice outweighed the minimal probative value of the pretext call. (See Peoples, supra, 62 Cal.4th at p. 745.)
Last, any error was harmless. Defendant argues the court's exclusion of the pretext call between M.F. and defendant violated his federal constitutional rights to due process, to present a defense, and against self-incrimination, which would require application of the stringent beyond a reasonable doubt harmless error standard. (Chapman v. California (1967) 386 U.S. 18, 24.) We do not agree.
"As a general matter, the '[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense.'" (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) "[E]xcluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense." (Id. at p. 1103.) As set forth above, even under defendant's theory, the excluded pretext call was of limited probative value, as it would have been admitted solely to challenge his own credibility. Defendant's federal constitutional rights were not violated.
Therefore, the more lenient standard of review applicable to defendant's claims is whether it is "reasonably probable" defendant would have received a more favorable result without the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) And here it is not reasonably probable admitting the excluded evidence would have caused the jury to doubt defendant's confession or the victims' testimony or changed the result.
2. Attempt as a Lesser Included Offense
Defendant contends the court erred by failing to instruct the jury sua sponte on attempted sexual penetration of a child 10 years or younger as a lesser included offense to the charge of sexual penetration of a child 10 years or younger.
"'We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.] A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, "'that is, evidence that a reasonable jury could find persuasive'" [citation], which, if accepted, "'would absolve [the] defendant from guilt of the greater offense' [citation] but not the lesser" [citation].'" (People v. Ngo (2014) 225 Cal.App.4th 126, 155 (Ngo).) No such evidence exists in this case.
Defendant relies principally on Ngo to support his argument. In Ngo, the defendant was interrupted while touching a child by the child's mother. (Ngo, supra, 225 Cal.App.4th at p. 133.) The child equivocated as to whether the defendant had penetrated her, telling the investigating officers both that the defendant had done so and that he had not. (Id. at pp. 132-138.) The child also equivocated in her testimony, testifying at the preliminary hearing and at the first trial that the defendant had penetrated her, and at the second trial that she could not remember. (Id. at pp. 140-142.)
Because sexual penetration of a child 10 years or younger is a specific intent crime, the Court of Appeal in Ngo determined attempted sexual penetration of a child 10 years or younger was a lesser included offense. (Ngo, supra, 225 Cal.App.4th at p. 157.)
The Court of Appeal also concluded the child's equivocation, together with the mother's testimony she interrupted the defendant, and she did not believe he penetrated the child, was "consistent with the possibility that [the] defendant attempted to penetrate [the child], but that [the mother] interrupted the attempt when she walked into the room." (Ngo, supra, 225 Cal.App.4th at p. 157.) Hence, the Court of Appeal held the trial court had a sua sponte duty to instruct the jury on attempt and had erred by failing to do so. (Ibid.)
One key difference between the facts of Ngo and this case is dispositive. In Ngo, the defendant was interrupted in the act, which gave rise to the possibility he could have intended to penetrate the child but was thwarted. Here, by contrast, there was no evidence defendant was interrupted, or the victims resisted, or that defendant was in any other way prevented from doing whatever it was he intended to do. Consequently, in the absence of any evidence defendant did anything less than he intended to do, the court had no sua sponte duty to instruct the jury on attempt. (Ngo, supra, 225 Cal.App.4th at p. 155.)
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: IKOLA, ACTING P. J. GOETHALS, J.