Opinion
E064237
02-21-2017
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN CORONADO CRUZ, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1304443) OPINION APPEAL from the Superior Court of Riverside County. Bernard J. Schwartz, Judge. Affirmed with directions. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
Jane Doe is the stepdaughter of Benjamin Cruz, the defendant. Between the ages of 8 and 10, she lived with her mother, stepfather, and siblings in Fresno, where defendant regularly molested her, committing acts of sexual intercourse, sodomy, oral copulation and digital penetration. When the family moved to Riverside, defendant continued to molest her, until she disclosed the abuse to a friend during the after school program in 2013, resulting in a report to authorities. Jane Doe was interviewed and medically examined, with no physical findings. Defendant was charged with five counts of violating Penal Code, section 288.7, subdivision (a), pertaining to the acts committed in Fresno, and five counts of violating section 288.7, subdivision (b), pertaining to the Riverside offenses. Following a trial by jury, defendant was convicted of the five Riverside counts (§ 288.7, subd. (b)), and was sentenced to an aggregate term of 75 years to life. Defendant appealed.
The parties at trial stipulated that the victim would be referred to by her first name and last initial. We will refer to her as Jane Doe.
All further statutory references are to the Penal Code, unless otherwise indicated.
On appeal, defendant argues that (a) his due process rights were violated by the admission of the investigating officer's testimony that it was normal for a child victim to disclose more abuse and in more detail at trial than was disclosed during the investigative interviews, (b) the sentence of 75 years to life constitutes cruel and unusual punishment, and (c) there is a clerical error in the recordation of the year of the offenses. We affirm with modifications.
BACKGROUND
Jane Doe was born in 2002, so she was eight years old when she and her family lived in Fresno, California, with her mother, stepfather (defendant), older brother and younger sister. The family lived for a time in a three-bedroom house in Fresno, and later moved to a house with only two bedrooms. In the second house, Jane Doe, her older brother and younger sister slept in the same room, with the younger sister sleeping in a small princess bed, while Jane Doe slept and her brother slept in a bunk bed.
A fourth child was born while the family lived in the second house in Fresno.
The first incident occurred while the family lived in the first house, when the acts included touching Doe, and inserting his penis in her vagina. This incident occurred in the living room while Doe was watching television with her mother, who had fallen asleep. Before inserting his penis in Doe's vagina, defendant pulled up her shirt and fondled her breasts. After having intercourse with Doe, defendant licked her vagina. The second incident occurred two days later when Doe was asleep in her bed, when the defendant committed the same acts. On one occasion in the living room, Doe's older brother was asleep in the living room, and awoke to see defendant on top of his sister, but they were both clothed.
On another occasion, Doe's brother slept in Doe's bed because he was afraid of the dark. During the night, he woke up to find defendant was on top of his sister. He became afraid so he tried to go back to sleep. When he awoke the second time, defendant was gone. Doe's brother wanted to tell his mother what was happening, but when he encountered his mother in the hallway, he told her he had had a nightmare. Doe did not tell her mother about the molestation because she thought her mother would not believe her.
While living in the second house in Fresno, defendant started touching Doe again. Defendant woke her up to have sex with her approximately 10 times. With her older brother in the upper bunk, defendant came in, removed his boxers, took down the covers, fondled her breasts, and inserted his penis in Doe's vagina. After withdrawing his penis, he put his hand over her hand and put it onto his erect and wet penis, moving her hand up and down for about five minutes. The abuse occurred approximately three times per week while the family lived in the second house in Fresno, but sometimes defendant changed this up, by taking Doe to the sofa in the living room, or to the bedroom he shared with Doe's mother, to commit the acts.
On at least five occasions, defendant carried Doe from her bed to the sofa in the living room in order to have intercourse with her. On one occasion in the living room, defendant had vaginal intercourse with Doe after fondling her breasts, when she was asleep on the sofa. Defendant inserted his fingers into Doe's vagina on one occasion. After the act of intercourse, defendant kissed Doe on the mouth. She went to the bathroom to wash her mouth. Approximately three days later, defendant committed the same acts again, in the living room.
On occasion in the parents' bedroom, defendant penetrated her vagina with his penis while she was standing, with her back leaning against the bed. While standing face to face, defendant digitally penetrated her vagina, and then would grab his penis and insert it into her vagina. Then he held her by the waist and inserted his penis into her vagina. On the first occasion, Doe cried and told defendant to stop because it hurt, but he told her to be quiet. Defendant had intercourse with Doe in the parents' bedroom approximately 10 times. After defendant finished penetrating her vagina with his penis, he would lick her vagina. Sometimes defendant digitally penetrated her in the parents' bedroom.
There were five occasions in which defendant had sex with Doe in the shower, when they lived in the second house in Fresno. On one occasion, Doe came in from swimming in a wading pool to shower off. Defendant entered the bathroom, got into the shower, laid her down in the bathtub, and had intercourse with her there in the tub. On this occasion, Doe's older brother knocked at the door, and then looked under the door, to see defendant's boxer shorts on the bathroom floor.
There was also one incident that occurred in the garage, where Doe was doing laundry. Defendant asked her if she wanted to "do it," but she did not want to. Defendant pulled down her pants and underwear, and inserted his penis inside her anus.
By the time Doe was ready to start third grade, the family moved to Riverside where they stayed at Doe's grandparents' house. Doe slept with her sister in the lower bunk, which was in the same bedroom as Doe's high school-age uncle. On three occasions, defendant came into the room after he got off work late at night, and climbed into the bunk bed with Doe and her sister. He removed Doe's pants and underwear, then inserted his penis in her vagina, and, after completing the sex act, he licked her vagina. Other incidents occurred in her parents' room, where defendant had sex with Doe vertically as she stood against the side of the bed, by lifting up one of her legs while her baby brother lay on the other side of the bed taking his bottle.
Also after the move to Riverside, there was an incident in the bathroom where he inserted his penis in her vagina as he held her up on the edge of the sink. After defendant was finished, he got toilet paper to clean the "white stuff" from his penis, and would give toilet paper to Doe so she could clean herself. There were approximately five incidents that took place in the bathroom after the move to Riverside. There were two occasions in which he had intercourse with her on the couch at the grandparents' house. On approximately four occasions, he inserted his penis in her butt, before inserting it into her vagina.
When Doe was in the fourth grade, she disclosed the abuse one of her school friends. Defendant had committed an act of intercourse with her in the morning, as she brushed her teeth before going to school. Doe just wanted it to stop so she told her friend that defendant was touching her. Doe told one of the after-school program workers what Doe had disclosed, resulting in a formal report.
By the time Doe turned 11, defendant was no longer living with the family.
Riverside Police Officer Hychko was dispatched to the school along with a Child Protective Services (CPS) worker, following the abuse report, to interview Doe. Officer Hychko also interviewed Doe's mother and defendant when they arrived at the school, and she interviewed Doe's brother later at the house. While interviewing Doe's brother in order to determine if he was a victim, the brother became emotional and expressed guilt for not having done something more to stop what had happened to his sister. Officer Hychko forwarded her reports to Detective Hopewell, who was assigned to the Sexual Assault and Child Abuse Unit.
Detective Hopewell interviewed Doe, her mother, brother, and sister, and concluded this was a non-acute case, because Doe had told her during the interview that the most recent incident had occurred two months earlier. As part of her investigation, Det. Hopewell had Doe's mother make a pretext call to defendant. The detective also scheduled a forensic medical examination for Doe. However, she did not expect any findings, although she was aware that when a hymen is penetrated and torn, it does not grow back.
The record does not include a summary or transcript of that call.
The forensic medical examination is not a part of the record on appeal, but was the subject of a mistrial motion and motion to dismiss the charges in 2014 due to late discovery of the report, which is a part of the record on appeal. That report apparently revealed a hymen within normal limits, and the conclusion that examiner could neither confirm nor deny sexual abuse. This information had not been provided to the defense until after opening statements in the first trial proceeding, causing the mistrial, but was not introduced by the defense in the retrial. --------
Defendant was charged with five counts of sexual intercourse or sodomy with a child of 10 years of age or younger (§ 288.7, subd. (a), counts 1-5), pertaining to the offenses committed in Fresno, and five counts of oral copulation or sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b), counts 6-10), pertaining to the offenses committed in Riverside. The matter was called for trial in 2014. In that trial, after the defendant's opening statement, in which defense counsel informed the jury that no forensic medical examination of Doe had been conducted, based on information provided by the prosecution, the prosecutor asked for a sidebar and informed the court and counsel that, in fact, there was a report of such an examination. Concluding that the report, which found that Doe's hymen was within normal limits, was favorable to the defense, the court declared a mistrial.
Retrial commenced on June 18, 2015. On June 29, 2015, the jury found defendant guilty of counts 6 through 10, but was unable to reach verdicts on counts 1 through 5. At sentencing, defendant was sentenced to consecutive terms of 15 years to life for each of the convicted counts, for an aggregate term of 75 years to life. The court dismissed counts 1 through 5 on motion by the People. Defendant appealed.
DISCUSSION
1. The Detective's Testimony That It Was Normal For A Victim to Disclose More Abuse At Trial Than In Prior Interviews Did Not Constitute Vouching For Jane Doe's Credibility.
During the trial, Jane Doe testified to more and different acts than she had previously disclosed during investigative interviews. When Detective Hopewell testified about her investigation and interviews with Doe, the prosecutor pointed out this fact, and asked the detective if this were uncommon. Defendant objected to the question on foundation and relevance grounds, but the court overruled the objection. Detective Hopewell responded that it is not uncommon.
The prosecutor then asked why, in the witness's opinion, this was so, to which the defendant again interposed objections. Detective Hopewell then testified that by the time the victim gets to trial, it is easier to talk about it. The detective also noted that the nature of the questions asked during forensic interview, which are open-ended, are different from the type of questions that are asked by the prosecutor or the defense attorney.
On appeal, defendant argues that the detective's responses constituted improper vouching for Jane Doe's credibility. He also argues that the trial court abused its discretion under Evidence Code section 352 by allowing the prosecutor to use the investigating officer to vouch for Doe's credibility. We disagree. We review the trial court's ruling on the admission or exclusion of evidence for abuse of discretion. (People v. Sanchez (2016) 63 Cal.4th 411, 456.)
Qualified experts may express opinions on issues beyond common understanding (Evid. Code, §§ 702, 801, 805), but opinions or views on veracity do not meet the standards for admission of expert testimony. (People v. Melton (1998) 44 Cal.3d 713, 744.) Credibility questions are generally not the subject of expert testimony. (People v. Smith (2003) 30 Cal.4th 581, 628.) Further, there is no authority to support the proposition that the veracity of those who report crimes to the police is a matter sufficiently beyond common experience to require the testimony of an expert. (People v. Sergill (1982) 138 Cal.App.3d 34, 39.)
Nor is an opinion as to the veracity of a witness admissible as lay opinion. (People v. Sergill, supra, 138 Cal.App.3d at p. 40.) "Lay opinion about the veracity of particular statements by another is inadmissible on that issue." (People v. Melton, supra, 44 Cal.3d at p. 744.) Such opinions, by those who have no personal knowledge of the facts, are of little assistance in deciding the credibility of testimony by percipient witnesses who do have personal knowledge. (People v. Chatman (2006) 38 Cal.4th 344, 382.) With limited exceptions, it is the fact finder, not the witnesses, who must draw the ultimate inferences from the evidence. (Melton, supra, at p. 744.) An attempt to usurp the jury's function could violate due process. (§ 1126 [jury's fact-finding province].)
In Sergill, on which defendant places heavy reliance, two different officers were asked if they had formed opinions about whether the child victim was telling the truth. (Sergill, supra, 138 Cal.App.3d at p. 38.) However, in the present case, the detective was neither asked for nor did she respond with an opinion about Doe's veracity. Thus, she did not express an opinion about the veracity of any of Doe's statements. (See People v. Houston (2012) 54 Cal.4th 1186, 1222.) Instead, she was asked if it were common for children to disclose more information or more incidents when testifying than they did during the investigative interviews. This testimony related only Detective Hopewell's personal experiences dealing with victims of child sexual abuse, and was proper.
Defendant also argues that the admission of the evidence violated Evidence Code section 352. Pursuant to Evidence Code section 352, a trial court may exercise its discretion to exclude otherwise admissible evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. However, defendant's objections at trial were based solely on relevance and foundational grounds. He did not make an Evidence Code section 352 objection so that issue is forfeited. (People v. Alexander (2010) 49 Cal.4th 846, 905, citing Evid. Code, § 353, People v. Partida (2005) 37 Cal.4th 428, 433-434.) We therefore do not need to reach this issue, and, having determined that the court properly admitted the testimony, we do not need to reach defendant's due process argument.
2. The Aggregate Sentence of 75 Years to Life Does Not Constitute Cruel and Unusual Punishment.
Defendant argues that his aggregate sentence of 75 years to life constitutes cruel and unusual punishment because it is impossible to serve such a term in his lifetime. Although defendant did not raise this issue below (see People v. Norman (2003) 109 Cal.App.4th 221, 229), we may reach it on appeal as a pure issue of law concerning the constitutionality of a statute. (In re Sheena K. (2007) 40 Cal.4th 875, 884, 887, fn. 7.) Nevertheless, we disagree.
Under both the Eighth Amendment of the United States Constitution, as well as under the California Constitution (art. I, § 17), a punishment is cruel and unusual if it is disproportionate to the severity of the crime for which it is inflicted. (Rummel v. Estelle (1980) 445 U.S. 263, 271 [100 S.Ct. 1133, 63 L.Ed.2d. 382]; People v. Estrada (1997) 57 Cal.App.4th 1270, 1278.) To determine whether a particular sentence is disproportionate, courts examine the nature of the offense and/or the offender with particular regard to the degree of danger both present to society. (In re Lynch (1972) 8 Cal.3d 410, 425.)
To determine whether a sentence is "cruel or unusual" under article 1, section 17 of the California Constitution, we analyze three criteria: (a) the nature of the offense and the offender; (b) a comparison of the sentence with those for other more serious offenses under California law; and (c) a comparison of the sentence with those in other states for the same offense. (People v. Retanan (2007) 154 Cal.App.4th 1219, 1231, citing In re Lynch, supra, 8 Cal.3d at pp. 425-427.)
Applying those criteria, we note that sexual offenses against children are considered among the most serious crimes, and defendant does not argue the contrary. The Legislature's provision for lengthy mandatory terms for sex offenses reflects its "zero tolerance toward the commission of sexual offenses against particularly vulnerable victims," and its desire to avoid the risk that a sex offender will reoffend, no matter how small the risk. (People v. Alvarado (2001) 87 Cal.App.4th 178, 200-201 [discussing mandatory One-Strike sentence for rape committed during burglary].) Regarding the nature of the offender, while it appears defendant has no prior criminal record, this does not compel a finding the sentence was unconstitutional. (See People v. Crooks (1997) 55 Cal.App.4th 797, 806-807.)
Comparing the sentence with those for other more serious offenses yields the same conclusion, given that the United States Supreme Court upheld a sentence of 50 years to life for a petty thief with prior convictions for serious or violent felonies (Strikes) under a disproportionality analysis. (Lockyer v. Andrade (2003) 538 U.S. 63, 77 [123 S.Ct. 1166, 155 L.Ed.2d 144].) The only offense that could be more serious than raping a child would be murder, which utilizes a similar sentence scheme.
Looking at other California cases involving sexual offenses compels the conclusion that the sentence imposed in this case is neither cruel nor unusual. A sentence of 135 years to life for 16 felony counts of sexual offenses against four different child victims was affirmed as against a claim it was cruel and unusual punishment. (People v. Retanan, supra, 154 Cal.App.4th at pp. 1230-1231.) In People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 529-531, the reviewing court upheld a sentence of 129 years for 25 counts of sexual offenses committed against the defendant's stepdaughter. And in People v. Wallace (1993) 14 Cal.App.4th 651, 666-667, the reviewing court upheld a sentence of 283 years, 8 months, as constitutional, for brutal sexual assaults on seven victims on four separate dates.
Defendant relies on the dissenting opinion in the case of People v. Deloza (1998) 18 Cal.4th 585, 600-602, wherein Justice Stanley Mosk posed the question whether a sentence of 111 years to life in prison for four counts of robbery with a firearm, pursuant to the Three Strikes law, was constitutional, where a sentence of 111 years is impossible for a human being to serve. (Id., at pp. 600-601.) However, that eloquent dissent is not the law. The clear import of the alternative sentencing scheme presented in section 288.7 is to insure longer sentences for persons convicted of substantial sexual conduct, i.e., sexual intercourse or sodomy, with a child 10 years old or younger.
Having been convicted of five counts of serious crimes, in the face of testimony that there may have been many more acts of abuse, the trial court properly imposed a term that would "encompass the balance of the rest of your life in that you will never be paroled." The sentence was appropriate considering the nature of the offense and the nature of the offender.
3. The Abstract of Judgment Is Ordered Modified.
Defendant argues, and the People agree, that the abstract of judgment incorrectly reflects that the "year crime committed" was 2009. We direct the superior court clerk to prepare an amended abstract of judgment showing the year the crimes were committed was 2011, and to serve a copy of the amended abstract on the Department of Corrections and Rehabilitation.
DISPOSITION
The clerk is directed to amend the abstract of judgment to reflect the year 2011 as the year the crimes were committed. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. CODRINGTON
J.