Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1098818. Marie Sovey Silveira, Judge.
Mark Alan Hart, 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, Stephen G. Herndon and Dawn S. Mortazavi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
Following a jury trial, Jimmy Mendez Alvarado, Sr. (appellant), was convicted of annoying or molesting a child of 14 or 15 years of age (Pen. Code, § 288, subd. (c)(1)), committing an act of oral copulation on an unconscious person (id., § 288a, subd. (f)), and committing an act of oral copulation on a person under the age of 16 (id., § 288a, subd. (b)(2)). The trial court placed appellant on probation for a four-year term and suspended a prison sentence. The trial court ordered appellant to serve 365 days in county jail.
Appellant claims there is insufficient evidence to sustain his convictions. We disagree and affirm.
FACTS
In September of 2005, 14-year-old M.B. lived with her mother, Mrs. Alvarado, and appellant, her stepfather. Others in the household included Mrs. Alvarado’s sons Sam, 18, and D., 13, and appellant’s son Matthew, 14, and daughter I., 10. Appellant was convicted of sexually assaulting M., who recanted her story at both the preliminary hearing and at trial, claiming she had lied to authorities. M. testified as both a prosecution and defense witness, and her postrecantation version of the events is chronicled in the defense evidence, post.
On September 17, M., her mother and stepsister, and appellant attended a party at a next door neighbor’s house. M. saw her mother and appellant drink alcohol at the party. M. and her stepsister returned home around midnight. M. changed her clothes for bed and went to sleep.
Appellant and his wife did not return until 3:00 a.m. The neighbor had to help appellant get his wife, who was intoxicated, back home. Once home, she passed out on her bed.
About 3:00 a.m., M. heard appellant vomiting in the bathroom next to her bedroom. Appellant then came into her room, wearing only boxer shorts, gave M. a goodnight kiss, and went to his own bedroom.
A few hours later, M. woke up to a “tingling sensation” on her “private part” and noticed appellant passed out at the end of her bed. Her legs were on top of the blanket. Appellant’s upper body was on the bed between her legs, and his lower body was on the floor. Her underwear was pulled to one side and appellant’s tongue was touching her private parts.
M. repeatedly told appellant to get out of her bedroom, but appellant said he couldn’t. She noticed his boxers were on the floor next to her bed. M. told appellant to leave or she would scream. Once he left, M. called her half brother Sam on her cell phone and told him it “happened again.” According to M.’s cell phone, the call was made at 4:28 a.m.
When Sam received the call, he knew what M. was talking about and came immediately. M. was “cuddled up in the corner of her bed crying.” Sam knew what had happened because “something like this has happened previously.” Appellant was not in the room when Sam arrived, but the boxer shorts were still on the floor next to M.’s bed. M. told Sam that appellant had been on top of her and was “eating [her] out.” Sam went to his parents’ room and saw appellant naked and facedown on the bed. Sam woke up his mother, who was clothed and still “a little bit” intoxicated, and the two went to speak to M..
Sam went to get a camera to take a picture of the boxer shorts. Mrs. Alvarado went back to her bedroom and yelled at appellant. She then took M. to the neighbor’s house, where she told the neighbor that appellant “ate out [M.].” M. went to sleep in the neighbor’s upstairs bedroom.
Sam called the police. Officers Timothy Lendman and Jesus Sigala arrived at the house around 5:52 a.m. and spoke to Sam in front of the house. Sam told the officers “I’m tired of this,” and related what had happened. Later, he told them about a prior incident which had occurred a year or two earlier.
Sam woke up M. so that she would speak with the officers. Officer Lendman spoke to M., who was “very quiet” and looked dowN.M. told the officer that she woke up with appellant between her legs. She said his tongue had been inside her genitals and her underwear pulled aside. Mrs. Alvarado told the officer that she had confronted appellant about the accusations and he had denied them.
Later, Officer Lendman spoke to M. out of her mother’s presence, and she told him about an earlier incident in which appellant crawled into bed with her. He was nude and had put his arms around her. At the time, M. called Sam and told him what happened. Sam told the officer that his mother was supposed to call the police, but never did because she was trying to prevent them from losing the house. The officer asked Mrs. Alvarado about the previous incident, and she stated that she, her daughters M. and I., and appellant had all been in bed together, but she did not indicate anyone was naked or that anything further happened.
Officer Lendman then went to speak to appellant. Lendman knocked on the door but got no answer. Mrs. Alvarado told the officer he could kick in the door if he had to. Appellant’s son finally opened the door, and appellant was at the top of the staircase, wearing pajamas, watching the officers come in. Lendman arrested appellant and collected M.’s bed sheets and the clothes she had been wearing.
M. and Sam then returned home. All three cordless telephones were disconnected and on top of the banister. Sam’s cell phone call log had been cleared, and the memory card in the camera, which Sam used to photograph the underwear, was missing. Before the officer left, he secured a restraining order, and he contacted child protective services because the incident involved a minor.
After the incident, appellant stayed at a hotel, although within a week of the incident, M., appellant, Mrs. Alvarado, D., I., and Matthew all went to San Francisco together. Before going to San Francisco, M. told Sam nothing had happened between her and appellant.
A week after the incident, M. spoke with Detective Julie Valente at a C.A.I.R.E. (Child Abuse Interview, Referral and Evaluation) center interview. Before the interview, Mrs. Alvarado had told M. that she might have to go into foster care. Child protective services had also spoken to M. and her siblings. M. knew that, if appellant did not pay the bills, her mother would have to move out of the house and into an apartment, and I. and Matthew would have to live with their biological mother. During the interview, M. became “very emotional” when she spoke about her family being broken up or disrupted.
M.’s taped interview at the C.A.I.R.E. center was played for the jury, and a transcript of the interview was provided. In the interview, M. states that, after she got into bed, she heard appellant vomiting in the bathroom, and that he then came into her room to give her a kiss. At that point, he told M. that her mother was so drunk that the neighbors had to help bring her home. Later, M. woke up to a “tingling sensation,” and saw appellant, half on and half off of her bed. Appellant’s mouth or tongue was touching her “private part.” At the time, part of M.’s vaginal area was exposed. M. stated that appellant’s tongue was moving, and it seemed as if he was gagging. M. woke appellant, who was naked, and told him to get out of her room. Appellant’s boxers were on the floor next to her bed. When appellant finally left her room, M. called Sam and told him “dad was eating me out,” which M. described as appellant licking her vagina. Sam went into his mother’s room and told her what had happened. Mrs. Alvarado came into M.’s room, where M. repeated what had happened. Mrs. Alvarado then returned to her own room and yelled at appellant. She then took M. next door and eventually talked to the police.
In the interview, however, M. also qualified her earlier version of the events by explaining that, after her mom went back into her room to confront appellant about his underwear being on the floor, he said to her “I don’t know what you’re talking about. I’ve been in here the whole time …. I have my pajamas on.” M. thought appellant may have mistaken her bathroom and bedroom for his and “just passed out.” When Detective Valente, who was present at the C.A.I.R.E interview, expressed disbelief of M.’s new version of events, she replied that she didn’t know what appellant might have been doing on her bed.
M. acknowledged, in the interview, that between the time of the incident and the interview, she had gone with appellant and the rest of her family to San Francisco. M. said that her mother had told her that, if she felt threatened by appellant and didn’t want him around, they would leave him. But she would have to tell her mother. M. claimed that she didn’t feel threatened and that she loved appellant. She acknowledged that she was afraid that she was going to tear her family apart because of what she had said to the police. But she denied that she had changed her story because she felt responsible for tearing her family apart.
When asked in the interview whether “anything like this ever happened before,” M. stated that two years earlier, appellant had come into her bedroom and fallen asleep on her and I.’s bed.
In January of 2006, Detective Joe Mendonza requested that Officer Lendman perform a security check at appellant’s house because his car was in the front driveway despite the restraining order. Mrs. Alvarado answered the door and refused to let the officer perform a security check. A neighbor admitted that she had seen appellant at the house on various occasions when M. was also there.
Sergeant Kevin Davis, a supervising officer, did not recall advising any of the officers to take M. for a forensic examination or to take a blood-alcohol test of appellant. Davis explained that the “procedure” of the department is not to perform a rape kit on an oral copulation allegation. Detective Mendonza had requested that the Department of Justice (DOJ) test M.’s underwear for sperm and hair, but he had not asked that DOJ check for saliva because he thought that such testing was “normal protocol for sexual assault[s].”
Criminalist Berklee Akutagawa testified that she performed laboratory tests and prepared a report on the evidence given to her in this matter. She concluded that the evidence contained no semen, but hair or fiber was found on all of the evidence. Akutagawa was not aware of the allegations in this case, but, had she been informed that there was an oral copulation allegation, she would have performed a saliva test.
Defense
At trial, M. recanted her first version of the events. She claimed that she had lied to the police and detectives in this matter because “nobody will listen to the truth.” She claimed she told Officer Lendman that nothing happened, but that he pressured her, so she told him a story. She also claimed Lendman pressured her to repeat what Sam had imagined and told her it was too late to go back on her story.
M. testified that she told Detective Valente a story at the C.A.I.R.E. center interview because Valente pressured her and she heard, through Valente’s earpiece, someone telling Valente that she, M., was lying and to “‘[g]et it out of her.’”
M. testified that she had lied about appellant wearing boxers, because he actually had on pajama pants. She told the truth that appellant had passed out, half on and half off of her bed, and she told the truth that she had been asleep in her bed. But she had lied when she told the officer that appellant’s mouth was touching her, that her underwear was pulled aside, and that she told appellant to get out of her room. She claimed to have lied when she told the officer that appellant’s boxers were off and that she woke up to a “tingling sensation” in her “private part.” According to M., appellant’s tongue was moving because he was gagging. M. testified that she lied to the officer that appellant told her he could not get up, and that she lied when she told Sam that appellant had “eat[en] her out.” She told her mother that appellant had “eat[en] her out” because she had lied to Sam. She also lied when she told the officer that her mother went back to her bedroom and yelled at appellant, and she lied when she told the officer that she felt her family was being torn apart.
M. testified that appellant had never shown any sexual interest in her. She claimed to have lied about the current or past sexual allegations because she felt pressured by Sam.
DISCUSSION
Appellant contends that there is insufficient evidence to uphold his convictions. Specifically appellant contends that M.’s inconsistent statements to investigators do not constitute sufficient credible evidence to support his convictions. We disagree.
“‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; see People v. Koontz (2002) 27 Cal.4th 1041, 1078.)
The admissibility of prior inconsistent statements is governed by Evidence Code section 1235: “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with section 770.” Section 770 provides that evidence of a witness’s prior inconsistent statement is admissible if: “(a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action.” Section 770 was satisfied in this case because M. had not been excused from giving further testimony in the action and, when called as a defense witness, had an opportunity to explain or deny the statement she made in the police interviews.
In California v. Green (1970) 399 U.S. 149, the United States Supreme Court held that Evidence Code section 1235 was not unconstitutional or in violation of the confrontation clause as long as the witness testifies and is subject to cross-examination. (California v. Green, at pp. 158-159.) In People v. Chavez (1980) 26 Cal.3d 334, our Supreme Court held that the admission of prior inconsistent statements pursuant to section 1235 did not violate the California confrontation clause when the defendant may confront and cross-examine the witness at trial. (Chavez, at p. 360.)
In People v. Cuevas (1995) 12 Cal.4th 252, our Supreme Court reaffirmed the notion that “out-of-court statements may serve as the sole evidence of guilt if they satisfy the substantial evidence test.” (Id. at p. 266.) Appellant acknowledges the holding in Cuevas, but argues that Cuevas is an unreasonable application of federal due process and should be reexamined. He raises this point primarily to preserve it for later review and acknowledges that we are bound by the decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
As for appellant’s claim that the credibility of M.’s inconsistent statements is too questionable to establish substantial evidence, we note that it is neither our duty nor our prerogative to resolve issues of credibility. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Juries, however, “are capable of determining the credibility of out-of-court statements that are inconsistent with a witness’s trial testimony by observing the witness’s in-court demeanor: ‘If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court. There is no mythical necessity that the case must be decided only in accordance with the truth of the words uttered under oath in court.’ [Citation.]” (People v. Cuevas, supra, 12 Cal.4th at p. 273.) So long as the judgment is supported by substantial evidence, we must affirm. (People v. Jones (1990) 51 Cal.3d 294, 314.)
The Cuevas court explained that a reviewing court should assess the circumstances of the out-of-court statement to determine whether it is sufficiently probative to support the conviction. (People v. Cuevas, supra, 12 Cal.4that pp. 267, 274-275.) Here, M. testified that she told the officers that she woke up to a “tingling sensation” on her “private part” and noticed appellant passed out at the end of her bed, with his upper body on the bed between her legs and his lower body on the floor. Her underwear was pulled to one side and appellant’s tongue was touching her “private part.” M. also testified that she lied repeatedly to the officers, and that while appellant was in her room, he was not naked and he was not between her legs. M. claimed that she accused appellant because the officers and Sam pressured her to tell this story.
Although M. recanted her out-of-court statements when she testified at trial, the prosecution offered evidence that M. may have falsely recanted because her mother depended on appellant financially and the accusations might “break up” the family or get child protective services involved. From this evidence, a reasonable jury could have concluded that M. was telling the truth when she made her out-of-court statements to the officers regarding appellant’s actions and that she recanted in court due to pressure from her mother. M.’s out-of-court statements were sufficiently probative to provide substantial evidence.
In order to support a conviction of child molestation of a victim of 14 or 15 years of age, the evidence must show (1) a person willfully touched the body or any part of the body either on bare skin or through clothing (2) of a child then 14 or 15 years of age (3) when that person was at least 10 years older than the child (4) with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the defendant or the child. (Pen. Code, § 288, subds. (a) & (c)(1); see also CALCRIM No. 1112.)
To support a conviction for oral copulation of an unconscious person, the evidence must show that the accused committed an act of oral copulation, and, at the time of the act, the victim was unable to resist because he or she was unconscious of the nature of the act and this was known to the person committing the act. Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another. Unconsciousness includes a victim who is asleep. (Pen. Code, § 288a, subds. (a) & (f); see also CALCRIM No. 1018.)
And to support a conviction for an act of oral copulation with a person under the age of 16 years, the evidence must show that the person participated in an act of oral copulation with another person, that the victim was under the act of 16, and that the defendant was at least 21 years old at the time of the act. (Pen. Code, § 288a, subd. (b)(2); see also CALCRIM No. 1081.)
We find there was substantial evidence to uphold appellant’s convictions. There was evidence that M., age 14 at the time, was asleep and woke up to find appellant, her stepfather, naked between her legs, which were on top of the blanket. Appellant’s upper body was on the bed between her legs, and his lower body was on the floor. His boxer shorts were on the floor, a fact that Sam testified to as well. M.’s underwear was pulled to one side and appellant’s tongue was touching her “private part.” M. told Sam that appellant had been on top of her and was “eating [her] out.”
Accordingly, we find substantial evidence to support the jury’s finding that appellant molested a victim who was 14 years of age (Pen. Code, § 288, subd. (c)(1)), that he committed oral copulation on a victim who was asleep (id., § 288a, subd. (f)), and that he committed oral copulation on a victim under the age of 16 (id., § 288a, subd. (b)(2)).
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, Acting P.J., CORNELL, J.