Opinion
C087330
10-29-2019
THE PEOPLE, Plaintiff and Respondent, v. JOSE HILARIO CONTRERAS, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE011439)
A jury found defendant Jose Hilario Contreras guilty of two counts of sexual intercourse with a child under the age of 10, and two counts of child molestation. The trial court dismissed one count of each offense for insufficient evidence in response to a motion for a new trial, and the prosecutor declined to refile charges. The court sentenced defendant to state prison for an indeterminate life term on the remaining conviction for sexual intercourse and stayed sentence on the remaining conviction for molestation.
On appeal, defendant asserts error in the admission of evidence of the DNA of an unknown third party on his person, and expert testimony regarding whether the results of the forensic examination of the victim were consistent with penetration. He also claims that the trial court should have instructed on attempted intercourse with a child as a lesser included offense. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant undisputedly had some form of sexual contact with the victim, his cousin once removed, and ejaculated on her. His appeal is premised on his theory at trial that he is "only" guilty of a sexual assault without penetration, subjecting him to a far less severe punishment. Our account of the evidence is accordingly limited.
Defendant was caught with his pants down. His cousin and her boyfriend, with whom defendant shared the apartment, came home in June 2016 from a midnight date at a casino after leaving defendant to babysit the sleeping child, who was just short of seven years old. Her bed was located in her parents' bedroom walk-in closet. They found him next to their daughter's bed, naked from the waist down and attempting to shield his flaccid penis from their view.
The victim's panties were pulled down a short way; her mother determined that they were wet, and the victim said that she had urinated on herself. Without thinking, the mother pulled up the panties.
Defendant denied doing anything wrong, claiming he had simply been undressing to take a shower in the common hallway bathroom. The mother hit defendant with a shoe. The father began beating defendant.
Securing the apartment door from the outside, the father called the police and said that his daughter had said defendant had been touching her "butt." (The mother, on the other hand, testified that the victim did not describe what defendant had done until after the police arrived.) When the police questioned her after they arrived at the apartment, the victim said she woke up to find her naked cousin next to her bed, who slid down her underwear, rolled her on her stomach, and touched his penis to her "colita," a word she used to describe both her genital and anal areas collectively (but she pointed to the vaginal area on her doll). When asked how many times this happened, she raised two fingers. As the officer recalled, she indicated that there was unspecified penetration rather than mere touching. His report did not include the exact words, but this was always his focus in this type of case.
As he was being escorted away, defendant asserted that he had been in the shower when he heard his cousin cry out, and he went to check on her. The shower, however, had been dry when the police inspected it on arrival, in response to the mother's report of defendant's excuse for being naked next to the victim.
During a subsequent interview with an examiner, the victim essentially repeated the account that she had given to the police officer. After rolling her over, defendant put his "stick" in her "little butt" (where she urinates). Asked if the stick went inside her body, the victim said he put it inside her twice before her parents returned. It felt bad. Exactly what she meant by "inside" is unclear.
At trial, the victim again described defendant touching her colita with his "middle part," which felt "bad" or "hurt." It happened only once before her parents got home. She wet her bed as a result. With respect to penetration, she testified it "almost" went inside her (without further specification), but her parents interrupted. She insisted on "almost" when reminded of her two interview responses to the contrary, saying they were misstatements. She did not remember telling the officer or the interviewer that the act happened twice. We turn to the forensic evidence.
The prosecution DNA expert found sperm on defendant's genitals, matching his DNA. There was also sperm on the victim's vulva, vulval vestibule, and panties. The technician separated the various samples into sperm and nonsperm "fractions." There was nonsperm DNA on defendant's genitals that was not his, but any DNA identification was not conclusive for purposes of a report (including whether or not there were multiple contributors). The DNA of the sperm on the vulval samples was consistent with defendant's. The nonsperm fraction was again inconclusive as to either defendant or the victim. The sperm in the panties had DNA consistent with defendant's, and identifiable nonsperm DNA of the victim. Urination can rinse DNA from female genitals.
The defense DNA expert testified there was a very small number of sperm on the victim's genitalia, which could have transferred from her panties. The nonsperm DNA on defendant's genitals was also present in very small quantities, and had penetration taken place the expert would have expected to find substantial amounts contributed from the other person, based on transfer studies analyzing full sexual intercourse between adults.
During the victim's physical examination, redness was seen in her vulval vestibule and on her inner thighs. The nurse conducting the exam considered these indicia to be "nonspecific," as they "could be caused by sexual abuse or other mechanisms." The victim's vestibule had a depth of about two to three inches. The nurse's report did not include any complaints about pain.
A prosecution medical expert who reviewed photos of the exam stated that the victim "had some redness but most likely that's due to hygiene or just blood vessels that are common in that area so we would call it a nonspecific exam. There [are] no specific findings of trauma to the genital area on this case." Asked if the redness was consistent with sexual abuse and penetration, the expert responded in the affirmative because a penis can penetrate the vulval vestibule without leaving physical indicia, and the vast majority of sexually abused children have normal exams within days of an assault; "almost any history would be consistent with a normal exam" and "you could [also] have a normal exam with a child who was never sexually abused," so with respect to the form she had filed out "we are basically always checking off [the] box [for] consistent with the history, and it's pretty rare to check off inconsistent." In fact, in the thousands of exams she had reviewed, she had never indicated the findings were inconsistent with sexual abuse. As she clarified in response to a juror question that the court posed, her conclusion in this respect is far more limited than the jury's task, which is to evaluate the whole spectrum of evidence to determine whether or not sexual abuse actually took place.
DISCUSSION
1.0 The Testimony Regarding Unidentifiable Third-party DNA was Proper
Defendant contends the trial court erred in allowing the prosecution expert to testify about the presence of DNA from an unknown third person or persons in the sample from defendant's penis. Citing cases from other states, defendant contends inconclusive DNA results are inadmissible because they are irrelevant. The People, in contrast, cite cases from other states condoning the admission of such inconclusive DNA results.
Defendant also cites a paternity case in which the court rejected a claim that evidence of the party's inclusion in the same broad blood grouping as the child should have been admitted as proof of paternity. (Dodd v. Henkel (1978) 84 Cal.App.3d 604.) The case is not illuminating in the present context because use of such evidence for this purpose is prohibited by statute, and thus the court's musings regarding the inadequate foundation of relevance for admissibility are dictum. (Id. at pp. 609-610.) --------
We may eschew a survey of the treatment of this issue in other jurisdictions. As the People point out, the inconclusive DNA was not offered for identity, but simply to demonstrate that defendant's penis had contact with someone other than himself, and thus had some relevance in corroborating the victim's testimony that he at least touched her genitals with his penis, an issue that the defense conceded but was not the subject of any formal stipulation from the defense. (People v. Erskine (2019) 7 Cal.5th 279, 296-297.) The People also point out that excluding the results could mislead the jury into believing that only defendant's DNA was present on his penis, which would be inconsistent with the victim's testimony.
These arguments are in accord with authority generally about the introduction of inconclusive results of forensic testing. In People v. Horning (2004) 34 Cal.4th 871 the court found relevant an opinion asserting degraded bullets "could have been" fired from a gun barrel associated with defendant, although the expert "could not say for sure and could not quantify the probabilities." (Id. at p. 900, fn. omitted.) That such evidence is inconclusive "does not make it irrelevant. It was relevant for the jury to learn that the evidence was tested, and that similarities . . . showed that both bullets might have been fired from the barrel, but that it was impossible to say for sure." (Ibid., italics added.) The uncertainty was not prejudicial to the defendant, because cross-examination could point out the weakness of the evidence, and exclusion of the evidence would be prejudicial to the prosecution because "[t]he jury would naturally wonder if anyone had tested the bullets and barrel. If told nothing on the question, some jurors might have assumed no one had bothered to test the evidence, to the prosecution's substantial—and unfair—detriment. It would have been truly odd, and would only have puzzled the jury, to tell it that testing had been done, but withhold the results." (Id. at p. 901, italics added.)
Similarly, in People v. Cooper (1991) 53 Cal.3d 771, the test results on saliva found on two cigarette butts for "ABO blood-group substance" were negative, which proved only that either the smoker was a nonsecretor like defendant or that the test was unable to detect any secretions. (Id. at p. 813.) (This rudimentary pre-DNA test was probative only for the inverse proposition, where it links positive results to defendants who are secretors.) "No one . . . claimed more for the test than the evidence warrant[ed]. The jury learned that the test's negative result meant that the defendant could not be excluded . . . , [but] was not told the test affirmatively established . . . a nonsecretor. . . . The evidence was not particularly probative, but it was certainly relevant for the jury to learn that the cigarettes were tested, and defendant was not excluded." (Ibid., italics added.)
The present case is not any different. The jury was aware there had been DNA testing of defendant's person and would only have been puzzled when the other shoe did not drop about the presence of any other DNA. Defense counsel was free to argue the lack of significant probative weight in the third-party DNA for proof of penetration. The trial court thus properly admitted the evidence of unidentifiable third-party DNA.
2.0 Trial Counsel was not Ineffective in Failing to Exclude the Opinion About the Results of the Victim's Physical Examination
Defendant contends trial counsel was ineffective because he failed to object to the testimony that the victim's physical exam was consistent with intercourse or molestation. This is not a fruitful argument.
With respect to the law governing evaluation of a claim of ineffective assistance of counsel, we need note only the principle that where the record is silent regarding trial counsel's litigation tactics, we must find that counsel fell below an objective standard of reasonableness according to prevailing professional norms such that any reasonable attorney would not have made the same choice. (People v. Ledesma (1987) 43 Cal.3d 171, 215; People v. Pope (1979) 23 Cal.3d 412, 426.) A failure to object to evidence is generally not a worthwhile basis for challenging the competence of trial counsel. (People v. Kelly (1992) 1 Cal.4th 495, 520.)
The evidence to which appellate counsel now objects is an example of self-cancelling testimony: Yes, the physical indicia are consistent with sexual abuse; yes, the physical indicia are consistent with causes other than sexual abuse; yes, sexual abuse may have occurred even without any physical indicia; and I have never identified any physical indicia as being inconsistent with a report of sexual abuse. In short, anything fits the template of "consistency." As a result, any reasonable defense attorney would conclude that these responses, which encompass every possible etiology for the physical indicia (or the absence of indicia), are so worthless on their face that any rational juror would recognize the absence of any probative value, and would not need to object to the testimony (as opposed to pointing out the laughable lack of significant probative value in closing argument, as trial counsel did). We therefore reject the claim of ineffective assistance of counsel.
3.0 Defendant was not Entitled to an Instruction on Attempt
Given the victim's testimony that defendant only tried but did not succeed in putting his penis "inside" (in some fashion) her genitalia before her parents returned, defendant contends the trial court had an obligation to instruct sua sponte on attempted intercourse with a child. This argument is both contrary to established law and is in any event an unproductive academic exercise.
A trial court has the obligation to instruct sua sponte on lesser included offenses where the evidence warrants. (People v. Breverman (1998) 19 Cal.4th 142, 162.) As a broad proposition, every completed crime has its attempted commission as a lesser included offense. (See In re Sylvester C. (2006) 137 Cal.App.4th 601, 609.) But like any broad proposition, there are nuances to it. "When a defendant acts with the requisite specific intent . . . to engage in the conduct and/or bring about the consequences [that are] proscribed by the [target] crime" and "performs an act that 'go[es] beyond mere preparation,' " a defendant is guilty of attempt. (People v. Toledo (2001) 26 Cal.4th 221, 230, italics added.) Therefore, when the target crime is one of general intent, an attempt is not considered a lesser included offense because it requires proof of an element not included in the completed crime. (People v. Bailey (2012) 54 Cal.4th 740, 753, citing inter alia People v. Strunk (1995) 31 Cal.App.4th 265, 271.) Thus, People v. Mendoza (2015) 240 Cal.App.4th 72 concluded that under the " 'statutory elements' " test for lesser offenses, attempted intercourse with a child is not a lesser offense of the crime of intercourse with a child, because the latter is a crime of general intent. (Id. at pp. 79, 82-83; cf. People v. Benavides (2005) 35 Cal.4th 69, 97 [molestation, as a crime of specific intent, is not lesser included offense of rape, a crime of general intent].)
Without citing any authority, defendant asserts sexual intercourse with a child is inherently a crime of specific intent. This is contrary to the above authority, and does not warrant any further response. He also seems to contend that we should consider an attempt at committing this target offense to be a crime of general intent because the usual defenses to a crime of specific intent "cannot reasonably apply" to it. That this may be true does not detract from the necessity of proving the element of the specific intent to commit the target crime. (Pen. Code, § 21a.)
Alternatively, defendant argues that we should "urge" the Supreme Court to grant review to overrule its decision in People v. Birks (1998) 19 Cal.4th 108. There are two good reasons to reject this request. First, given our role in the judicial hierarchy, we are generally disinclined to do so, as defendant is fully capable of including this argument in any petition for review after raising it here. More importantly, we cannot see how the case has any bearing on defendant. It overruled the court's earlier decision that entitled a defendant to an instruction on a lesser related offense on request. (Id. at pp. 112-113.) Defendant does not direct us to any point in the record where he unsuccessfully requested an instruction on attempted intercourse with a child.
Finally, this is a tempest in a teapot. The jury convicted defendant of both the crime of intercourse with a child and molestation. Putting aside the substantial evidence of penetration, if the jury had reasonable doubt about penetration, it simply would have convicted him only of molestation. Defendant does not provide any cogent basis for concluding that the jury was somehow coerced into finding him guilty of the former offense even if it doubted that penetration occurred. (Cf. People v. Lipscomb (1993) 17 Cal.App.4th 564, 571 [reversal not warranted for failure to give instruction on lesser related offense (under prior law) where other lesser related offenses were at issue and jury not left with all-or-nothing decision].) We thus conclude penetration was a non-issue for the jury.
DISPOSITION
The judgment is affirmed.
/s/_________
Butz, J. We concur: /s/_________
Raye, P.J. /s/_________
Hull, J.