Opinion
B304077
03-23-2021
THE PEOPLE, Plaintiff and Respondent, v. DANIEL SAAVEDRA, Defendant and Appellant.
Aaron Spolin, under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Steven E. Mercer, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA074932) APPEAL from an order of the Superior Court of Los Angeles County, Shannon Knight, Judge. Affirmed. Aaron Spolin, under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
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Daniel Saavedra was convicted of six counts of sexually abusing his two daughters. On appeal, he argues (1) the evidence was insufficient because the victims' testimony was not credible; (2) the trial court erred in allowing the prosecution to add two charges after two others were dismissed; (3) the information's lengthy time frames within which various acts were alleged to have occurred violated his right to due process; and (4) the trial court erred in excluding his testimony on erectile dysfunction. We find no error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 29, 2018, appellant's younger daughter, who was 11 years old at the time, told her mother that appellant "was touching [her and her sister] inappropriately." Younger daughter was "scared and nervous and shaking." When mother asked her for details, younger daughter pointed to her breast. Mother then asked older daughter, who was 13 years old, if appellant had inappropriately touched her. Older daughter told mother appellant "was touching her breasts and her vagina areas." called the police. 1. Law Enforcement Investigation
Both daughters were interviewed separately by a forensic investigator; recordings of these interviews would later be played at trial. Older daughter told the forensic investigator that appellant "will ask me to come to the room . . . then he would just ask me to like take off [my] clothes . . . and then he would just touch me on my vagina and breasts. . . . [A]fter like 15, 20 minutes, he'll just tell me, you're a good girl, thank you. Then I get dressed. Then I go back to the living room."
Younger daughter told the investigator that appellant "started touching us in like places he's not supposed to." She described an incident when appellant told her to get undressed in his room after swimming in an inflatable pool; he directed her to bend over and then rubbed her "butt." She described another incident when appellant told her to lie face-down on the bed and she then felt "something cold went on like my butt . . . and then something went in . . . ." During a third incident, she was getting ready to shower and appellant told her to take off her towel and began touching her chest and thighs. 2. Charges Filed Against Defendant
As to older daughter, appellant was charged with three counts of sexual abuse: one count of a lewd act upon a child under 14 years old in 2015 (Pen. Code, § 228, subd. (a); count 1), one count of continuous sexual abuse during the years 2016 and 2017 (§ 288.5; count 2), and another count of a lewd act in 2018 (§ 228, subd. (a); count 3). As to younger daughter, appellant was charged with committing a lewd action upon a child under 14 years old in 2017 (§ 228, subd. (a); count 4), continuous sexual abuse during the years 2017 and 2018 (§ 288.5; count 5), and aggravated sexual assault of a child in 2017 (§ 269, subd. (a)(5); count 6). He pled not guilty. 3. Trial and Sentence
All further undesignated statutory references are to the Penal Code.
At trial, older daughter testified that appellant touched her genitals about twice a month between 2015 and May 2018. She visited appellant on most weekends during those years, and the sexual touching occurred every other visit. When asked to describe a "typical[]" incident, she said he "would call [her] into the room and then have me shut the door, and I would take off my clothes because he would ask me to. . . . He would just rub my vagina and rub my boobs." The last time appellant touched her in this manner was in May 2018.
Younger daughter testified at trial about the three incidents she had described to the forensic investigator. In the summer of 2017, when she was 10 years old, she had come back from swimming in an inflatable pool, when appellant told her to pull down her bathing suit and "bend down," and then he touched her "butt." On another occasion in 2017, appellant told younger daughter to get undressed in his bedroom and get on her hands and knees; she then "felt something on [her] butt." She could not remember if anything was inserted into her. She described a third incident in February 2018, when she was about to take a shower and appellant told her to take off her towel and then touched her naked body.
During trial, the prosecution dismissed count 5 (continuous sexual abuse of younger daughter) and the court dismissed count 6 (aggravated sexual assault of younger daughter). The prosecution moved to replace those counts with two additional counts of lewd acts on younger daughter (counts 7 and 8). Over defense counsel's objection, the trial court allowed the amendments.
The jury found appellant guilty of all charges. The trial court sentenced him to 75 years to life plus a determinate term of 12 years. He timely appealed.
DISCUSSION
1. Substantial Evidence Supports the Convictions
Appellant contends none of the six convictions are supported by sufficient evidence because the victims' testimony was "beyond belief." He argues generally that due to the "inconsistencies" in the victims' testimony it was "unreasonable" for the jury "not to disregard" their accounts of the abuse. Appellant does not challenge any of the convictions individually by, for example, discussing the evidence count by count. Instead, he broadly attacks the entirety of the victims' testimony as excessively "generic" and points to the victims' failure to "specifically establish[]" the dates of the assaults. Finally, appellant contends that all the witnesses who testified for the prosecution had "serious credibility issues" because the victims' mother "used the children as pawns in her retribution scheme" against appellant.
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the [appellant] guilty beyond a reasonable doubt.' [Citation.]" (People v. Edwards (2013) 57 Cal.4th 658, 715.) "We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]" (People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
Appellant's claim that the victims were not credible because they testified inconsistently and had a motive to lie does not allow us to disregard their testimony. "[I]t is not this court's role on appeal to reweigh the evidence, resolve conflicts in the evidence, or make our own credibility determinations." (People v. Wilson (2020) 56 Cal.App.5th 128, 155.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.) We have reviewed the evidence with this standard in mind and reject appellant's characterization of the testimony as inherently improbable. Nor was it physically impossible. Any inconsistencies in the victims' testimony at most created conflicts in the testimony that the jury, not this court, must reweigh.
Appellant's claim that the evidence was insufficient because of the victims' inability to describe precise dates, times, places, or circumstances has been soundly rejected by our Supreme Court. In People v. Jones (1990) 51 Cal.3d 294 (Jones), the court recognized that child victims often cannot recall specific dates, locations or other details of sexual offenses. (Id. at pp. 313-321.) Thus, prosecutions for child abuse must sometimes be based on "generic testimony." (Id. at p. 315.) "The victim, of course, must describe the kind of act or acts committed with sufficient specificity, . . . the number of acts committed[], . . . [and] the general time period in which these acts occurred . . . ." (Id. at p. 316.) Additional details are not required to establish sexual abuse. (Ibid.; see also People v. Anderson (2012) 208 Cal.App.4th 851, 892 ["After Jones, violations of section 288, subdivision (a) and other 'specific' or 'discrete' crimes may be proven by generic testimony."].)
Here, older daughter gave a detailed account of appellant's sexual abuse which occurred about every other weekend from 2015 until 2018: appellant asked her to come to his room, directed her to undress, and then rubbed her breasts and vagina. Younger daughter also testified in detail as to three lewd acts appellant committed in 2017 and 2018: the inflatable pool incident when he told her to remove her swim shorts and touched her buttocks; the incident when he directed her to get on the bed naked and touched her buttocks; and the shower incident when he asked her to take off her towel and touched her naked body. As the Supreme Court requires, the victims identified the kinds of acts appellant committed, the frequency of their occurrence, and the general time period of abuse. (See Jones, supra, 51 Cal.3d at p. 314.) This testimony was sufficient evidence that the sexual abuse occurred. 2. The Trial Court Did Not Err in Allowing the Prosecution to Amend the Information to Add Counts 7 and 8
Appellant argues the trial court erred by allowing the prosecution to amend the information during the defense presentation of evidence to add counts 7 and 8. The additional counts alleged acts only against younger daughter. Appellant contends he was prejudiced by the amendments because he "could not even determine what he was charged with in each count," and thus, was prevented from putting "on a defense" to the new charges. Respondent argues that younger daughter's testimony at the preliminary hearing put appellant on notice of these charges.
After several witnesses testified for the defense, and outside the presence of the jury, the prosecution moved to dismiss count 5 for continuous sexual abuse and count 6 for aggravated sexual assault, and amend the information to conform to proof. The court granted the prosecution's motion on count 5 under section 1385, and dismissed count 6 under section 1118.1.
The prosecution then moved to add two charges of lewd conduct based on the same incidents underlying counts 5 and 6—the time when appellant interrupted younger daughter from taking a shower in 2018 and when appellant directed her to get on the bed before touching her buttocks in 2017. The court granted the motion. As amended, the information now alleged three charges of lewd act against younger daughter based on testimony that younger daughter had already provided. Count 4 remained the inflatable pool incident; count 7 was the incident on the bed; and count 8 was the shower incident. The court stated that appellant "was on notice of each of these alleged incidents," and therefore, would not be prejudiced as there was not "any difference really in terms of defending against the allegations."
The court may permit the amendment of an information at any stage of the proceedings to charge an offense that is shown by evidence presented at the preliminary hearing. (People v. Michaels (2002) 28 Cal.4th 486, 513.) Amendment to the information can occur "up to and including the close of trial." (People v. Graff (2009) 170 Cal.App.4th 345, 361.) We review a trial court's decision to allow an amendment to the pleadings after defendant's plea for abuse of discretion. (People v. Hamernik (2016) 1 Cal.App.5th 412, 424.)
Here, younger daughter testified at the preliminary hearing about the abuse on the bed that now formed the basis for count 7. According to her testimony, sometime in 2017 appellant called her into his bedroom, told her to get undressed and get on the bed on her knees, and then he touched her buttocks and she felt something go into her body.
She also testified at the preliminary hearing about the shower incident on which count 8 was based. The prosecutor asked her about the last time appellant had "touched" her, and then specifically, if she remembered a time when she "cried and he stopped," daughter replied yes. She then described the incident—she was "going to take" a shower and appellant "said to come into his room." She went into appellant's room and took off her towel. She then started crying "because [she] didn't want it happening anymore." Appellant said, " 'Is anyone touching you?' and "then he said, 'I'm only doing this. Just don't look.' " On cross-examination, when younger daughter said she started to cry, defense counsel asked her "And then did he ever touch you at that point?" (Emphasis added.) She responded, "No."
Appellant now argues that younger daughter's testimony at the preliminary hearing "was so inconsistent that [he] could not even determine what he was charged with in each count." We disagree. Any inconsistency in younger daughter's statements as to the shower incident went to the weight of her testimony. At trial, younger daughter was pointedly cross-examined on the alleged inconsistencies. During the prosecution's presentation of evidence, younger daughter testified that in 2018 appellant interrupted her when she was getting ready for a shower, told her to take her towel off, and then touched her. Defense counsel tried to impeach her with her prior preliminary hearing testimony that he had not touched her.
Whether or not defense counsel actually impeached younger daughter was for the jury to decide. One consistent interpretation of both the trial and preliminary hearing testimony was that defendant touched younger daughter before she started to cry but not afterwards.
Her preliminary hearing testimony adequately put appellant on notice that he would be charged with sexual abuse as to the shower and bed incidents. Although these incidents were initially encompassed in counts 5 and 6, and then became the bases for counts 7 and 8, we agree with the trial court that appellant "was on notice of these alleged incidents." We also observe that the charges originally encompassing the now dismissed count 5 (continuous sexual abuse) and count 6 (aggravated sexual assault on a child) were more serious than the felonies charged in counts 7 and 8. We hold the trial court acted within its discretion in permitting the prosecution to add these charges during trial. 3. The Extended Time Frames Alleged in the Information Did Not Violate Appellant's Right to Due Process
Appellant argues that the time frames alleged for each count were "unconstitutionally vague." According to appellant, because the information did not, in his view, allege a "reasonably specific time frame," he was unable to adequately prepare a defense. Appellant has forfeited this claim by not raising the issue in the trial court. (See People v. Holt (1997) 15 Cal.4th 619, 672 ["failure to demur on the ground that a charging allegation is not sufficiently definite waives any objection to the sufficiency of the information"].) Although defense counsel objected to the filing of counts 7 and 8 on the ground that the late amendments deprived appellant of adequate notice of the charges against him, he did not argue that the time frames alleged were too long.
Count 1 alleged a lewd act during 2015; count 2 alleged continuous sexual abuse during 2016 and 2017; count 3 alleged a lewd act during the first five months of 2018; count 4 alleged a lewd act during 2017; count 7 alleged a lewd act during 2017; and count 8 alleged a lewd act during the first five months of 2018.
Even if the argument is not forfeited, it fails on the merits. "Numerous procedures afford criminal defendants the means to obtain notice of the charges against them. They include, among others, the information, the preliminary examination and pretrial discovery. [Citation.] Because of the availability of these procedures, the California Supreme Court has found that 'prosecution of child molestation charges based on generic testimony does not, of itself, result in a denial of a defendant's due process right to fair notice of the charges against him.' [Citation.] In cases involving sexual molestation of children, the function of the accusatory pleading is to give notice to the defendant of the nature of the offense charged and whether it occurred within the applicable limitations period. ' "[A]t a minimum, a defendant must be prepared to defend against all offenses of the kind alleged in the information as are shown by evidence at the preliminary hearing to have occurred within the timeframe pleaded in the information." ' [Citation.]" (People v. Fernandez (2013) 216 Cal.App.4th 540, 554-555.)
Here, the information alleged that appellant committed the several lewd acts during specific time periods ranging from less than one year to two years. The preliminary hearing testimony coupled with the allegations in the information adequately apprised appellant of the nature of the charges against him. The prosecution was not required to provide appellant with notice of the specific dates of the alleged sexual offenses. Accordingly, there was no due process violation. (See Jones, supra, 51 Cal.3d at p. 317; People v. Wilson, supra, 56 Cal.App.5th at p. 156 [affirming convictions for lewd acts upon a child where the information alleged the defendant committed the acts during a 19-month period].) 4. The Trial Court Did Not Err in Excluding Appellant's Testimony About Erectile Dysfunction
After the defense presented its case and the prosecution declined to present a rebuttal, defense counsel asked to reopen testimony to examine appellant about "whether or not he has erectile dysfunction." The prosecutor noted that none of the charged offenses had an element that required appellant to have an erection, and argued the proposed evidence should be excluded as irrelevant. The trial court agreed. Appellant now argues the trial court erred in excluding this evidence.
We review a trial court's decision to exclude evidence for abuse of discretion. (People v. Lewis (2009) 46 Cal.4th 1255, 1286.) Exclusion of defense evidence "on a minor or subsidiary point" does not impair an accused's due process right to present a defense. (People v. Fudge (1994) 7 Cal.4th 1075, 1103.) In contrast, completely excluding evidence of an accused's defense may result in an unconstitutional deprivation of the right to present a defense. (Id. at pp. 1102-1103.)
Here, evidence of whether appellant could have an erection was not relevant because the sexual offenses alleged did not require an erection. The lewd act charges required proof only that appellant touched the victims for the purpose of sexual arousal and the victims were under the age of 14 at the time. (§ 288, subd. (a); People v. Martinez (1995) 11 Cal.4th 434, 444-445.)
Appellant contends that younger daughter "specifically testified that appellant put his penis into her butt and removed it several times." In support of this argument, appellant cites to younger daughter's interview with the forensic investigator. The cited statements do not support appellant's claim: younger daughter only told the investigator that "something went in" her buttocks and she "was thinking why is a cold thing going in my butt." No witness testified to an erection.
Finally, the exclusion of appellant's testimony on erectile dysfunction did not prevent him from presenting a defense such as denying that he had touched daughters' bodies in a sexual way after instructing them to remove their clothing. As appellant's excluded testimony was tangential to the issue of whether he sexually molested his daughters, the trial court did not abuse its discretion in excluding it.
DISPOSITION
The judgment is affirmed.
RUBIN, P. J. WE CONCUR:
BAKER, J.
KIM, J.