Opinion
D071592
10-30-2017
THE PEOPLE, Plaintiff and Respondent, v. MARCO VILLASENOR, Defendant and Appellant.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christine Y. Friedman and Steve Oetting, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD266018) APPEAL from a judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Affirmed. Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christine Y. Friedman and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Marco Villasenor guilty of sexual penetration by use of force (Pen. Code, § 289, subd. (a); count 1), and resisting, delaying or obstructing an officer (§ 148, subd. (a); count 3). The court sentenced Villasenor to prison for the upper-term of eight years on count 1 and 40 days in local custody with credit for time served on count 3.
Unless noted otherwise, further statutory references are to the Penal Code.
The jury did not reach a verdict on count 2, assault as a lesser-included offense of count 1.
On appeal, Villasenor contends the court committed prejudicial error by admitting evidence concerning his postarrest conduct. Villasenor also contends the court abused its discretion by sentencing him to the aggravated term. As we explain, we reject both contentions and affirm the judgment.
FACTUAL BACKGROUND
On an evening in March 2016, the victim Jane Doe left work around 9:00 p.m. As Doe walked to her car she noticed a man wearing dark clothing and eyeglasses. The man quickly approached Doe from behind and without warning, wrapped his left arm across her body and forcibly "jab[bed]" his fingers into her vagina, at one point lifting her completely off the ground. The man then threw Doe to the ground as he continued to penetrate her. Doe freed one of her hands and hit the man in the head, causing him to run away. She gathered her belongings, went to her car, and called 911. That call was played for the jury.
San Diego Police Department Officer Sarah Sutter testified she was dispatched to the crime scene. As she neared Doe's location, Officer Sutter saw a man matching the description Doe had given dispatch. Officer Sutter stopped and detained the man, whom Doe identified as her attacker both at a curbside lineup later that night and at trial.
After Villasenor's arrest, Officer Sutter testified the officers used paper bags to cover Villasenor's hands to preserve any possible DNA evidence before they placed him in the back of her patrol car. After briefly stepping away from the car, Officer Sutter saw that Villasenor had removed the bags and was wiping his hands on the backseat. Officer Sutter testified they in response put a second bag over Villasenor's hands. Despite Officer Sutter's warning not to remove the bags, Villasenor again attempted to rip them off his hands. Officers thus placed a third bag over Villasenor's hands.
Officer Sutter transported Villasenor to police headquarters for a forensic exam. Villasenor, however, refused to participate in the exam until a detective was present. As they waited for the detective, Villasenor sat in a chair while Officer Sutter stood nearby. According to Officer Sutter, Villasenor turned and faced her, and then started leering at her in a threatening manner. Concerned, Officer Sutter asked Villasenor why he was staring at her and if he needed anything. Villasenor, however, did not respond and instead continued to stare at her. Once the detective arrived, the bags were removed from Villasenor's hands. He again began wiping his hands, this time on his jeans and through his hair.
A physical examination of Villasenor revealed bruising and injuries to his forearms, some bruising to his wrist, an injury to his chest, and some injuries on both his hands, all of which were consistent with a struggle. Evidence obtained from Villasenor's hands and fingernails was tested and found to match Doe's DNA. DNA evidence recovered from Doe's underwear showed Villasenor was a contributor.
DISCUSSION
I
Villasenor contends the court abused its discretion by admitting over objection Officer Sutter's testimony concerning Villasenor's postarrest behavior. Specifically, Villasenor argues the court should have excluded her testimony that Villasenor was staring at her in a menacing manner and how that made her feel in response.
A. Additional Background
At trial, Officer Sutter testified as follows:
"[Prosecutor]: And what did [defendant] do?
"[Officer Sutter]: He was staring at me, he was looking up and down, head to toe. He just kept bouncing his legs and staring at me the whole time, not answering any questions at all about why he was staring at me or, 'do you need water?'
"[Defense]: Objection, Your Honor. Same grounds.
"The Court: Overruled
"[Prosecutor]: "So what did you do?
"[Officer Sutter]: I stood there and actually told him he needed to stop staring at me, and I told him that I noticed him studying my name tag and if that he ever did anything after this case was over to try to come after me, that I would take care of it.
"[Defense]: Objection, your honor. Move to strike.
"The Court: What's the objection?
"[Defense]: Highly prejudicial.
"The Court: Overruled.
"[Prosecutor]: "Was he making—how was he making you feel?
"[Defense]: Objection. Relevance to how she felt.
"The Court: Overruled. You may answer.
"[Officer Sutter]: Thank you. To be honest with you, being a police officer, wearing a uniform, you—fear is something that you experience sometimes and you harness it and you turn it into energy and try to do your job.
"[Defense]: Your Honor, this is speculative, highly prejudicial.
"The Court: Overruled. This is what her opinion was, it's what's in her mind. It's overruled."
B. Guiding Principles
Only relevant evidence is admissible. (Evid. Code, § 350; People v. Babbitt (1988) 45 Cal.3d 660, 681.) Relevant evidence is any evidence that has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) However, even if evidence is relevant, the court in its discretion may exclude it "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." (Evid. Code, § 352.) "[T]he trial court has broad discretion both in determining the relevance of evidence and in assessing whether its prejudicial effect outweighs its probative value." (People v. Horning (2004) 34 Cal.4th 871, 900.)
"We review claims regarding a trial court's ruling on the admissibility of evidence for abuse of discretion. Specifically, we will not disturb the trial court's ruling 'except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Goldsmith (2014) 59 Cal.4th 258, 266, internal citations omitted.)
C. Analysis
Here, we need not decide whether the court erred in admitting Officer Sutter's brief testimony concerning Villasenor's postarrest behavior because we conclude any such alleged error was harmless in light of the ample evidence of his guilt on both counts. (See People v. Homick (2012) 55 Cal.4th 816, 872 [applying the People v. Watson (1956) 46 Cal.2d 818 standard in concluding the wrongful admission of a witness's brief testimony was harmless in light of the strong evidence of the defendant's guilt].)
Indeed, as noted ante, DNA evidence found on Villasenor's hands and fingernails matched Doe's DNA. Likewise, DNA evidence taken from Doe's underwear showed Villasenor as a contributor. In addition, the record shows Villasenor was apprehended a few blocks from the location of, and shortly after, the sexual assault. And Doe made a positive identification of Villasenor as her attacker both during a curbside lineup within an hour of the attack, and at trial.
The record also contains ample evidence to support the finding that Villasenor tampered with evidence. He was repeatedly warned by officers to keep his hands inside the plastic bags to preserve any potential evidence on his hands and under his fingernails. Despite such warnings, Villasenor ripped, and/or attempted to rip, through the bags covering his hands, and rub his hands on the seat of the patrol car, his jeans, and through his hair.
We thus conclude on this record that even if the court erred in admitting Officer Sutter's testimony, it was not reasonably probable Villasenor would have obtained a more favorable verdict. (See People v. Homick, supra, 55 Cal.4th 816 at p. 872; People v. Watson, supra, 46 Cal.2d at p. 836; People v. Covarrubias (2015) 236 Cal.App.4th 942, 950 [concluding it was error to admit the "personal-tragedy testimony" of witnesses regarding the effect of DUI crashes on their respective families when those crashes were unrelated to the charged offense, but that such error was harmless in light of the overwhelming evidence of guilt].) As such, we reject this claim.
II
Villasenor also asserts the court abused its discretion in imposing the upper term on his conviction in count 1 because he was not given an opportunity to object and because there was insufficient evidence to support his sentence on the aggravated term.
When considering the term of a sentence, it is the court's obligation to explain on the record the various reasons and factors it relied on, while evaluating the preponderance of the evidence to support its reasoning. (People v. Scott (1994) 9 Cal.4th 331, 349.) Nonetheless, the "trial court often has broad discretion to tailor the sentence to the particular case," including the discretion "to impose the lower or upper term instead of the middle term of imprisonment. . . ." (Ibid.) It is only necessary for the court to provide a single aggravating factor to impose the upper term. (People v. Black (2007) 41 Cal.4th 799, 815.)
If given a "meaningful opportunity to object" (People v. Scott, supra, 9 Cal.4th at p. 356), a defendant forfeits any challenge concerning "the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons" by raising them for the first time on appeal. (Id. at p. 353 [concluding the "waiver" or forfeiture doctrine applies "to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices," including "cases in which the stated reasons allegedly do not apply to the particular case"].)
Turning to the instant case, we conclude Villasenor forfeited his claim the court allegedly abused its discretion when it allegedly failed to make or articulate properly its discretionary sentencing choices in this case and when it sentenced him to the aggravated term. Although Villasenor contends on appeal he lacked the opportunity to object to his sentence, the record shows otherwise, as Villasenor had notice of the probation report, which recommended he be sentenced to the upper term. Further, the record shows during sentencing the defense addressed two issues, neither of which were related to Villasenor's sentence term. Because the defense failed to object to the term of the sentence and/or the reasons for it, despite having a "meaningful opportunity" to do so, we conclude defendant has forfeited this claim of alleged error by raising it for the first time on appeal. (See People v. Scott, supra, 9 Cal.4th at pp. 352-353, 356.)
However, even if Villasenor had not forfeited this claim, we would deny it on the merits. The record shows Villasenor has a criminal history dating back to 2010, when he was arrested for obtaining and using another's credit card and identification information. More importantly, the probation report recommended the court impose the upper term on Villasenor in light of the fact his offense in count 1 involved "great violence" and a "high degree of cruelty," indicating he posed a "serious danger to society," findings that are amply supported by the evidence in the record. (See Cal. Rules of Court, rule 4.421(a)(1) & (b)(1).) We thus conclude the court properly exercised its broad discretion when it sentenced Villasenor to the aggravated term.
Villasenor argues there was no evidence to support the court's finding he lacked remorse. We disagree. The trial court found that Villasenor's testimony was nothing short of "preposterous." With the insurmountable evidence presented to the jury and Villasenor's contradicting story, the issue of remorse was properly considered by the court. --------
DISPOSITION
The judgment of conviction is affirmed.
BENKE, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.