PEOPLE v. MARTINEZ-VASQUEZ

No. C070354.

THE PEOPLE, Plaintiff and Respondent, v. EFRAIN AMED MARTINEZ-VASQUEZ, Defendant and Appellant.

Court of Appeals of California, Third District, Yolo.


NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115

MURRAY, J.

Defendant Efrain Amed Martinez-Vasquez appeals following conviction of two counts of lewd and lascivious acts on a child under age 14 (Pen. Code, § 288, subd. (a)),1 one count of oral copulation on a child age 10 or younger (§ 288.7, subd. (b)), and one count of first degree burglary (§ 459) with specific intent to commit an enumerated sex offense (§ 667.61, subd. (a)). The trial court sentenced defendant to 31 years to life.

Defendant contends: (1) the trial court erroneously admitted into evidence as a "`fresh complaint'" a statement the victim made to her mother shortly after defendant was discovered in her bedroom wearing only his underwear; (2) the evidence was insufficient as to oral copulation, burglary, and specific intent to commit a sex offense at time of entry; (3) trial counsel was deficient in failing to object to admission of the videotaped interview of the victim by the Multidisciplinary Interview Center (MDIC); and (4) the trial court erred in sentencing defendant to consecutive terms without stating reasons for the choice.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

An information charged defendant as follows:

Count 1: Lewd or lascivious conduct on a child under age 14 (§ 288, subd. (a)) on April 24, 2011, with an enhancement allegation for committing the offense during commission of first degree burglary (§§ 460, subd. (a), 667.61, subd. (a)); Count 2: Oral copulation with a child age 10 or younger (§ 288.7, subd. (b)) on April 24, 2011; Count 3: First degree burglary (§ 459) on April 24, 2011, by entering an inhabited bedroom of a dwelling with the intent to commit a lewd or lascivious act, with an enhancement allegation in that another person was present in the residence (§ 667.5, subd. (c)(21)); Count 4: Lewd or lascivious conduct on the same victim (§ 288, subd. (a)) on or about April 17, 2011, with an enhancement allegation for an offense committed during commission of first degree burglary (§§ 460, subd. (a); 667.61, subd. (a)); Count 5: Oral copulation with a child age 10 or younger (§ 288.7, subd. (b)) on or about April 17, 2011; and Count 6: First degree burglary (§ 459) on or about April 17, 2011, by entering an inhabited bedroom with intent to commit a lewd or lascivious act on the child, with an enhancement allegation in that another person was present in the residence (§ 667.5, subd. (c)(21)).

Prosecution's Evidence

The victim in all counts was a six-year-old girl. The victim, her mother, stepfather, and two siblings, lived in a house with defendant. Defendant was a friend and coworker of the victim's stepfather. The terms of occupancy were not made clear for the jury, but defendant was already living there when the victim's family moved in. The victim and her brother shared a bedroom. The mother, stepfather, and infant sister shared a bedroom. Defendant had the third bedroom.

On the night of April 24, 2011, the victim's stepfather went outside to investigate a noise and encountered defendant, who said he had forgotten his keys. The stepfather let him in and went back to bed.

Around 1:00 or 2:00 a.m., the victim's mother awoke and asked her husband to check on the two children who shared the separate bedroom. The stepfather got a glass of milk from the kitchen, saw "a chunk of meat" on the counter that someone had been cutting, and went to the children's bedroom. He opened the door, which should have been locked, turned on the light, saw the victim covered up in the bed, and saw defendant by the partially-open closet door, trying to hide himself inside. Defendant was wearing only underpants and maybe socks and had a shirt or towel on his shoulder. The stepfather asked defendant what he was doing in the room, and defendant said, "`[N]othing.'" The stepfather told defendant to get out immediately and he never wanted to see defendant in that house again. The stepfather said, "I practically ran [defendant] off."

The victim's mother brought the victim to the parents' bedroom and examined her, pulling down her pants. The mother saw blood on the victim's legs above her knees. The mother asked the victim what had happened. The victim did not want to say anything. The mother reassured the victim that nothing would happen to her if she told what happened. The victim then gestured downward2 and said that defendant had kissed her on her private parts. She spontaneously added that this was the "second time." The mother testified the victim was frightened and began to cry during this conversation.

The mother, who testified through a Spanish interpreter, used the word "`colita,'" literally "little tail," to indicate where the victim said defendant kissed her. The interpreter said children use the word to refer to "any part that would normally fit inside the underpants; anus, perineum, vagina, everything that's in the underpants."3

The victim's mother called the police. The responding police officer testified he arrived around 4:00 a.m. and found defendant in the kitchen, wearing a T-shirt and pants. Defendant's finger was cut and bleeding. There was blood on the front door handle, the cutting board, the door to the children's room, a trail of blood into the children's room, and blood on the victim's shirt.

In the morning, the mother took the victim, unbathed, to the hospital. A nurse practitioner took samples of dried blood from the victim's lower legs. An examination of the genital and anal area was normal, which was not inconsistent with the alleged offenses.

A criminalist concluded from DNA test results that it was defendant's blood on the victim's leg. A vulvar swab of the victim revealed DNA consistent with the victim and no one else. A vestibular4 swab of the victim revealed the victim as the major contributor of DNA, with at least two minor contributors. Defendant could not be ruled out as one of the minor contributors. The criminalist testified that "the probability that a random unrelated individual would by chance be included as a possible contributor to those DNA types that I tested was estimated to be approximately 1 in 78 African Americans, 1 in 52 Caucasians, and 1 in 51 Hispanics." There were low levels of amylase, indicative of saliva, in the swabs, but the levels were not high enough to confirm the presence of saliva.5

The victim testified at trial. She said defendant kissed her on the mouth and "[m]y little tail."6 He said he was going to bring her pastries, but he did not bring her any. He kissed her "tail" on two different days. The second time was when the police came. She testified that she did not know how long before the second incident that the first incident took place.

Two days after the April 24th incident, Marie Flores, a child interview specialist for the MDIC interviewed the victim. The jury saw the video recording of the interview, which was conducted in Spanish, and was given a written transcript in Spanish and English to use during the viewing. During the interview, the victim gave more detail than she did during her trial testimony. She said defendant, to whom she referred as an uncle, had used his key to enter her bedroom while her brother slept, pulled down the covers and her pants, and kissed her mouth and "bottom" on two different days. However, at one point during the interview, she also said both incidents were on the same day. She said defendant kissed her mouth and bottom on two occasions but did not get blood on her the first time. The second time, he got blood on her, she told her mother, and the police came. The first time, defendant said he was going to bring her juice but he did not. He told her not to tell her parents. She said defendant kissed her "[l]ike if you were going to get married." She said that when he was kissing her "little tail," she felt "[s]lobber." His tongue was inside her "little tail." She spread the legs of a doll to show how defendant pulled her. She told her mother that defendant kissed her and smeared blood on her.

A police detective testified he interviewed defendant in Spanish at the police station. The audio recording of the interview was played for the jury, with a transcript in Spanish and English provided to the jurors during the viewing. Defendant said he had been drinking whiskey and beer at a party that night. After he got home, he cut a roast into steaks in the kitchen for a party the next day. He cut his finger and it bled. He said he took his clothes off because he got blood on them while cutting the steaks and he was going to go to bed. When asked if he was wearing only shorts, defendant said, "Maybe, I don't remember. I think." Then he told the detective he had on the shirt he was wearing during the interview.

Defendant said after he was finished cutting the steaks, he was going to bed when as he walked by the children's room, he heard footsteps inside and opened their door. He had left the steaks "on the board" in the kitchen, but did not explain why he left them on the board when asked why he had not put them in the refrigerator. When the detective said the parents kept the door locked, defendant said he knew the door was kept locked, but said it opened when he grabbed it because it was not completely closed. Defendant said the victim was out of bed and asked him for some juice. He grabbed her, took her back to bed, kissed her on the cheek, and told her to go to sleep.

After being told that the victim said he "violated her," defendant said he kissed her on the stomach. After being told that police were testing for saliva and DNA and that the victim said he kissed her lower, defendant said maybe he kissed her "down lower" than the stomach.

When asked why he hid in the closet, defendant initially said he tried to hide in the closet because he got scared when he noticed blood on the victim after the stepfather turned on the light. Defendant then told the detective he went to the closet to hide when the stepfather opened the door, before the light was turned on. He said he was scared because he was "drunk and . . . nervous." When asked why he was scared if he had not done anything wrong, defendant said, "[J]ust all of a sudden it came to mind that he was thinking something bad, right?" He added, "To tell you the truth I wasn't doing anything bad, just laying the girl down, that was it."

The detective explained that they intended to do a medical exam on the victim and asked defendant if anything would come out on the tests from defendant's mouth or lips. Defendant replied, "Well, maybe the kiss that I gave her." The detective asked where defendant had kissed the victim and defendant replied, "Right there on her private parts." The detective said, "On her private parts?" Defendant replied, "Maybe." The detective asked defendant to be honest and asked, "How many kisses did you give her down there?" Defendant said, "[J]ust one." The detective then asked, "And where exactly, on her private part?" Defendant replied, "[A] little bit on top. Not on her actual private part. It was at the top not on the — not on her slit, you know." When asked how many inches "on top," defendant said it was about an inch on top. He denied using his tongue. When asked why he kissed her there, he said, "Well, you know, I was drunk. I figured it would be easy and I told her, `I love you lots, mija [my child].' And that was it." And she said, "`I love you too, uncle.'"

Defendant denied pulling the victim's pants down. He said that she had them down. When the detective said DNA tests would show whether defendant pulled her pants down like the victim said, defendant said maybe they fell down when he grabbed her, hugged her, and laid her down. The detective (falsely) told defendant that the hospital found saliva on the victim's "slit." Defendant said his kiss had saliva and maybe it dripped.

When asked if he felt sexual desire for the victim, defendant said, "[W]ell it could be but not to have relations with her." He said, "I saw her naked and, it just made it easier." When asked if he felt a "sexual sensation," when he kissed the victim, defendant replied, "[Y]ou can call it that, right? But not to have complete sexual relations." The detective asked, "So then, you had an attraction towards her, with her?" Defendant replied, "[W]ell I don't know, just, mmm, I just saw her and just thought it would be easy, you could say." The detective asked, "So then, you pulled down her — her panties?" Defendant answered, "[W]ell that I pulled them down completely no, I'd say — I would say that when I hugged her . . . [¶] . . . [¶] . . . and I laid her down that's when they moved and that's when I felt that I saw her — give her a kiss, but it was dark." The detective then asked, "So then, you . . . saw her private parts and you felt like an attraction?" Defendant relied, "Mmm, yes, you could call it that, yes." Defendant claimed this had never happened before and he did not know why the victim would say it had. He said that morning was the first time he had an attraction to the victim.

Defense Case

Defendant did not testify at trial and the defense presented no evidence. In closing argument to the jury, defense counsel acknowledged the evidence showed defendant was guilty of two lewd acts but asked for not guilty verdicts on the other charges.

Verdicts and Sentencing

The jury found defendant guilty on count 1, the April 24th lewd act (§ 288, subd. (a)); count 2, April 24th oral copulation with a child under age 10 (§ 288.7, subd. (b)); count 3, the April 24th first degree burglary (§ 459); and count 4, lewd act on or about April 17th (§ 288, subd. (a)). The jury found true the enhancement allegations on counts 1 and 3. (§§ 460, subd. (a), 667.61, subd. (a), 667.5, subd. (c)(21).)

The jury found not true the count 4 enhancement allegation that the April 17th lewd act was committed during a burglary. (§ 667.61, subd. (a).) And the jury found defendant not guilty on counts 5 and 6, the April 17th oral copulation and burglary (§§ 288.7, subd. (b), 459).

The trial court sentenced defendant to 31 years to life, calculated as follows: six years on count 4, the April 17 lewd act; a consecutive term of 25 years to life on count 1, the April 24 lewd act with the section 667.61, subdivision (a), enhancement; 15 years to life on count 2, oral copulation with a child under age 10, execution stayed pursuant to section 654; six years on count 3, first degree burglary, execution stayed pursuant to section 654; and a stay on the section 667.5, subdivision (c)(21), enhancement to the burglary count.

DISCUSSION

I. Victim's Statements to Her Mother

Defendant argues the trial court improperly admitted the victim's statements to her mother as a "`fresh complaint.'" He complains her statements did not qualify as fresh complaint; the trial court failed to instruct the jury on the limited purpose of fresh complaint evidence; and the statements were not admissible as spontaneous statements. We conclude defendant forfeited this contention by failing to revisit the issue when the evidence was introduced in front of the jury, pursuant to the trial court's earlier invitation at the time of the in limine ruling. Had defendant revisited the matter, the victim's comments to her mother would have been admissible as spontaneous statements.

A. Additional Background

The prosecutor argued in limine that the victim's April 24th statements to her mother regarding the molestations were admissible as "`fresh complaints.'" The prosecutor's written motion in limine said the evidence was not being offered for the truth of the matter asserted, but rather "to corroborate the victim's testimony and assist the trier of fact in assessing the significance of the victim's statements."

The defense argued the fresh complaint doctrine is used as prior consistent statement where a victim delays in reporting the crime, which was inapplicable here, and the statements should be excluded under Evidence Code section 352 as improper bolstering.

The trial court said: "I'm going to allow them in as long as a foundation, of course, is laid as the mother is testifying. . . . Of course, neither side gets to just start asking questions without foundation no matter what the ruling in limine is. [¶] But I'm not going to exclude it. They're admissible. The victim's statements to the mother are admissible, and so the motion is granted. But they're admissible, of course, dependent upon laying an appropriate foundation, as would always happen with the Fresh Complaint Doctrine."

Defense counsel asked, "[A]re you going to allow everything that she said to come in or is it the fact of the complaint — the circumstances of the complaint, the general nature of the offense, and the idea of the perpetrator is what I read the case law to say would be admissible versus more detail than that."

The trial court replied, "Right. Generally, the idea that there was a complaint or a statement, you can — as we all know, a fresh complaint can be in response to a question. So if the mother says — testifies to the effect that she asked her daughter that day what went on in there, and the daughter says whatever the response is, you know, some sort of indication that a sexual touching took place, for example, that is admissible. [¶] A followup question to the mother; can you tell us what details your daughter gave you, that would be sliding over into, I think, something other than the fact that there was a f[r]esh complaint. That is a fresh description of what occurred. [¶] And I'm not so sure that we get into that unless there's some other reason to. For example, the testimony from the daughter being that she's very reluctant to go into details or something, and an adult witness would essentially be refusing to testify for a child witness. It would be along the lines of too embarrassed to testify sometimes to these things. [¶] Same rule applies though. You then get to start bringing in prior consistent statements, or inconsistent statements sometimes with an adult. [¶] But in any case, a complaint made, the general nature of the complaint, it will take other testimony and evidence to show what actually occurred whether it's through an MDIC type setting or whatever it may be. [¶] I don't want to get into a detailed ruling of, this come in; this doesn't come in, because that's what trial's for, objections and rulings and that sort of thing along the way. [¶] So right now it's just generally, yes. If the foundation's laid for an excited utterance or fresh complaint type situation, then yes, it can come in." (Italics added.)

Defense counsel made no objection during the mother's testimony when it was given to the jury.

B. Analysis

1. Forfeiture

Defendant forfeited his challenge to this evidence by failing to object during the mother's testimony. (Evid. Code, § 353, subd. (a) [judgment will not be reversed on ground of erroneous admission of evidence unless defendant made a timely objection, stating the specific grounds for the objection].) Generally, when a trial court rules evidence admissible in limine, the party seeking exclusion must object at such time as the evidence is actually offered to preserve the issue for appeal. (People v. Morris (1991) 53 Cal.3d 152, 189 (Morris), disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) "`[U]ntil the evidence is actually offered, and the court is aware of its relevance in context, its probative value, and its potential for prejudice, matters related to the state of the evidence at the time an objection is made, the court cannot intelligently rule on admissibility.' [Citation.] In these kinds of circumstances, an objection at the time the evidence is offered serves to focus the issue and to protect the record." (Morris, at p. 190.)

The Morris court went on to describe an in limine motion exception to the rule requiring an objection at the time the testimony is offered. The court stated: "a motion in limine to exclude evidence is a sufficient manifestation of objection to protect the record on appeal when it satisfies the basic requirements of Evidence Code section 353, i.e.: (1) a specific legal ground for exclusion is advanced and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable body of evidence; and (3) the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context. When such a motion is made and denied, the issue is preserved for appeal. On the other hand, if a motion in limine does not satisfy each of these requirements, a proper objection satisfying Evidence Code section 353 must be made to preserve the evidentiary issue for appeal." (Morris, supra, 53 Cal.3d at p. 190.)

Here, defendant did not move in limine to exclude the evidence but rather objected when the prosecutor sought in limine to admit the evidence as fresh complaint. The trial court tentatively allowed the evidence, but specifically told the parties that the proper foundation must be laid and that it was up to them to make objections as the evidence was elicited during testimony. Essentially, the court indicated that developments during trial would be important to its ruling. For example, as for the fresh complaint theory and the details of what the victim reported, the trial court informed the parties, "I'm not so sure that we get into that unless there's some other reason to." (Italics added.) Further, the trial court specifically raised the possibility of admissibility as "an excited utterance." Thus, the Morris in limine motion exception does not apply to the situation we have here, because the third prong has not been satisfied: "the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context." (Morris, supra, 53 Cal.3d at p. 190.) The trial judge suggested renewal of the objection would be required precisely for this reason. Therefore, it was incumbent upon defendant to object when the evidence was elicited at trial. He did not do so.

We conclude defendant has forfeited any evidentiary objection to admissibility of the child's comments to her mother.

2. The Victim's Statements about What Had Just Happened

Even assuming the objection is not forfeited, we would reject defendant's challenge because the victim's April 24th statements to her mother were fully admissible as spontaneous declarations under Evidence Code section 1240.

To be admissible under the spontaneous declaration exception the following is required: "`(1) there must be some occurrence startling enough to produce . . . nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.'" (People v. Poggi (1988) 45 Cal.3d 306, 318.) "`"Neither lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance."'" (People v. Brown (2003) 31 Cal.4th 518, 541 (Brown).) The crucial element in determining whether a statement is sufficiently reliable to be admitted as a spontaneous declaration is the mental state of the declarant. (People v. Raley (1992) 2 Cal.4th 870, 892 (Raley).)

Whether a statement qualifies as a spontaneous declaration is largely a question of fact within the trial court's discretion (People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1588), which is why the forfeiture rule should be applied in this context, where the trial court is not asked to exercise its discretion. In any event, defendant's arguments on the merits for reversal are not persuasive.

Defendant argues the evidence cannot be deemed admissible as spontaneous declarations, because the prosecutor did not seek an in limine ruling on that basis. However, the trial court itself recognized the evidence may be admissible as excited utterance, stating, "So right now it's just generally, yes. If the foundation's laid for an excited utterance or fresh complaint type situation, then yes, it can come in." Moreover, even if the trial court had not mentioned the spontaneous declaration exception and it had not been advanced by the prosecution, we would still affirm based on the applicability of that exception. "`"No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion."'" (People v. Zapien (1993) 4 Cal.4th 929, 976, italics added.)

The foundation for excited utterance was laid after there was testimony about the circumstances of the child's statements, including: the child's stepfather discovering defendant in the children's room hiding in the closet, wearing only underpants and possibly socks; the stepfather demanding that defendant leave the house immediately; the mother retrieving the children from the bedroom; the victim, stained with blood, was frightened and crying when she made the statements about defendant having just molested her for the second time. One could hardly fault defense counsel for not objecting under these circumstances.

Defendant argues on appeal it is not clear how much time elapsed between defendant's acts on April 24th and the child's statements to her mother on April 24th. We think the evidence is clear enough. Defendant was pretty much caught in the act by the victim's stepfather, whose attempts to get defendant out of the room created a commotion, which drew the victim's mother into the child's room, and caused the mother to bring the child into the mother's bedroom, where the mother examined the child, saw blood, and asked what had happened. This evidence indicates that the statement was made within moments after the victim was rescued from the control of the defendant, the "first secure opportunity for disclosure." (See People v. Trimble (1992) 5 Cal.App.4th 1225, 1235 (Trimble).)7

Defendant argues that the victim's comments were "not spontaneous" because they were made in response to questioning by the mother after the child's initial reluctance to speak. However, the fact that a statement was elicited by questioning does not deprive the statement of spontaneity if the statement was made under the stress of excitement and while the reflective powers were still in abeyance. (Brown, supra, 31 Cal.4th at p. 541.) Here, the mother asked one question, what happened? The victim was afraid to answer, so the mother assured her it was okay. The victim then told her and started crying. The child's comments were clearly made under the stress of excitement despite being elicited by a question from her mother.

3. The Victim's Statement about the First Incident

Defendant argues the child's reference to a first incident was not admissible as a spontaneous declaration because there is no indication of when the first incident happened. Defendant cites In re Cheryl H. (1984) 153 Cal.App.3d 1098, in which the court held a three-year-old's statement that her father molested her a month or two earlier was not a spontaneous declaration. (Id. at p. 1130.) The court doubted that the necessary level of psychological stress could be sustained for even a few hours, to say nothing of weeks or months. (Ibid.) However, our high court disagreed with the Cheryl H. court in Raley, stating: "Contrary to the suggestion of the court in In re Cheryl H., supra, 153 Cal.App.3d 1098, 1130, that a statement cannot be considered spontaneous if more than a few minutes have elapsed, `[n]either lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance.'" (Raley, supra, 2 Cal.4th at p. 893; id. at pp. 893-894 [statements about rape were admissible where they were made 18 hours after the attack and the victim was in no condition to fabricate due to head injury, intermittent unconsciousness, bleeding, exposure to the elements, and mental agony].)

The Cheryl H. court's observations have no application here for a second reason. The victim's statements in Cheryl H., a dependency case, were made to a court appointed psychiatrist during therapy sessions one to two months after the molestations. (Cheryl H., supra, 153 Cal.App.3d at pp. 1109, 1129.) The statements were not made under the stress of excitement of a repeat molestation event, as here.

The People write in their respondent's brief, "Respondent does not argue that [the victim]'s `second time' comment was admissible under the spontaneous statement exception." The People rely on forfeiture and fresh complaint for the child's comment to her mother that a prior molestation also occurred.

Despite the People's concession, in our view, the victim's statement about the current exciting event being the "second time" is a spontaneous declaration. First, the victim's statement about it being the second time was completely spontaneous. The mother did not ask whether defendant had done anything to her before or any other question like that. Indeed, the mother testified she asked the victim what happened and did not ask her another question before the victim said this was the "second time." The reason spontaneous declarations are admissible is because such statements are "`considered trustworthy . . . because "in the stress of nervous excitement, the reflective faculties may be stilled and the utterance may become the instinctive and uninhibited expression of the speaker's actual impressions and belief."'" (People v. Merriman (2014) 60 Cal.4th 1, 64) Given the spontaneous nature of the victim's statement describing the April 24 incident as the "second time" and the other surrounding circumstances, we conclude her statement was an "`"instinctive and uninhibited expression of the [victim]'s actual impressions and belief."'" (Ibid.) Second, and most important, while some appreciable time period may have lapsed between the first event and the second, the excitement and trauma of the first event was renewed by the second molestation event that had just happened. In other words, the second event was a triggering event startling enough to cause the child to re-experience the stress of the first incident and make a statement under the stress and excitement of both events. As for the timing of the first event relative to the second, the young victim's statements during the MDIC interview exhibiting confusion about whether the first event happened on the same day or some previous day suggests the events occurred close in time together.

In any event, as indicated, the lapse of time between the described event and the statement, although a factor in determining spontaneity, is not determinative. (Brown, supra, 31 Cal.4th at p. 541.) Lapse of time between the event and the declarations does not deprive a statement of spontaneity if it nevertheless appears that the statement was made under the stress of excitement and while the reflective powers were in abeyance. (Ibid.) As we have noted, the crucial element in determining whether a statement is admissible as a spontaneous declaration is the mental state of the declarant. (Raley, supra, 2 Cal.4th at p. 892.) How long a statement is made after the exciting event is important "`solely as an indicator of the mental state of the declarant.'" (Id. at pp. 892-893.)

In Trimble, supra, 5 Cal.App.4th 1225, the declarant was the two-and-one-half-year-old daughter of defendant and the murder victim. The victim was last seen alive at the cabin where she resided with defendant and the children. Two days later, the victim's sister came to the cabin and as soon as defendant left, the daughter became hysterical and told her aunt about how defendant had stabbed the victim two days earlier. (Trimble, at pp. 1228-1229.) The Trimble court held that the victim's statements were admissible under Evidence Code section 1240, reasoning that despite "[t]he appreciable interval between the incident and the subject statements," the arrival of the aunt and defendant's departure, with whom the daughter had been sequestered for two days, was a "triggering event, startling enough to provoke an immediate, unsolicited, emotional outpouring of previously withheld emotions and utterances." (Trimble, at p. 1235, italics added.)

Similarly, in In re Emilye A. (1992) 9 Cal.App.4th 1695, a dependency proceeding in which the court restricted an adoptive father's visitation due to an allegation that he sexually molested the child, the court held admissible as spontaneous declarations a two-year-old child's statements to her mother. The statements were not made until a day or two after the child sustained her "`owie.'" The child made the comments in the midst of play with her mother when the irritated area was accidentally touched and the minor "reexperienced the pain of the `owie.'" (Id. at p. 1713.)

We recognize that to be admissible as spontaneous declaration, the statement must relate to the circumstances of the startling event. (Evid. Code, § 1240.) In our view, the victim's reference to the "second time" described or explained a circumstance under which the second molestation was committed. That circumstance was that the victim had been subjected to defendant's conduct more than on that one night. Moreover, the reference to the "second time" also described the circumstances of the first event by essentially cross-referencing the conduct that the victim described took place during the second molestation. In other words, the victim's reference to the "second time" was a way to abbreviate her description of what defendant did to her the first time. Instead repeating what he did during the second molestation and relating that specific conduct to the first incident, she simply said it was the "second time."

We conclude the child's statements to her mother were fully admissible as spontaneous declarations, even if defendant did not forfeit the contention by failing to raise appropriate objections during trial.8

II. MDIC Interview Statements

Defendant argues his trial counsel rendered ineffective assistance of counsel by failing to object to admission of the video recorded MDIC interview. We disagree.

To establish ineffective assistance of counsel, a defendant must show (1) counsel's performance was below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 [80 L.Ed.2d 674, 693-694, 696] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) "`Surmounting Strickland's high bar is never an easy task.'" (Harrington v. Richter (2011) 562 U.S. 86, 105 [178 L.Ed.2d 624, 642] (Richter), quoting Padilla v. Kentucky (2010) 559 U.S. 356, 371 [176 L.Ed.2d 284, 297].)

The reason why Strickland's bar is high is because "[a]n ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest `intrusive post-trial inquiry' threaten the integrity of the very adversary process the right to counsel is meant to serve. [Citation.] . . . It is `all too tempting' to `second-guess counsel's assistance after conviction or adverse sentence.' [Citations.] The question is whether an attorney's representation amounted to incompetence under `prevailing professional norms,' not whether it deviated from best practices or most common custom." (Richter, supra, 562 U.S. at p. 105.)

1. Deficient Performance

There is "no expectation that competent counsel will be a flawless strategist or tactician" (Richter, supra, 562 U.S. at p. 110), and counsel's strategy is not constitutionally deficient just because it may not have worked. (Id. at p. 109 [defense counsel is not incompetent merely because the defense strategy did not work out as well as counsel had hoped].) When the record on appeal sheds no light on why counsel acted or failed to act in the challenged manner, we will reject a claim of ineffective assistance of counsel on direct appeal unless trial counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. (People v. Riel (2000) 22 Cal.4th 1153, 1197 (Riel).) "A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding." (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) In a habeas corpus proceeding, additional evidence could be taken on defendant's claim, including the testimony of trial counsel who could provide an explanation for his or her decision.

Defendant argues there was no possible tactical basis for counsel's failure to object. He discusses the inapplicability of various hearsay exceptions in his briefing. But defendant's opening brief on appeal does not mention the obvious hearsay exception — Evidence Code section 1360,9 statements made by children under age 12 in child abuse proceedings — until a footnote under the heading of prejudice. There, he argues the MDIC interview was not admissible pursuant to Evidence Code section 1360 because there is no evidence of two requirements of that hearsay exception: (1) that the prosecutor advised the defense of his intent to use the recording at trial, and (2) that the trial court conducted an examination to determine reliability of the MDIC recorded interview.

However, the fact that there is no evidence in the record establishing that the prosecutor advised defense counsel of his intent to use the recording at trial provides an example of why an ineffective assistance claim such as this should be made in a habeas corpus proceeding. It may very well be that the prosecutor informed counsel of his intent outside of the record. As for the trial court conducting a reliability examination, it may well be that counsel, who was fully informed about the circumstances, knew that the trial court would determine the statements reliable. Counsel is not required to make meritless objections. (People v. Ochoa (2011) 191 Cal.App.4th 664, 674, fn. 8.) In any event, the record is undeveloped on this matter.

Moreover, defendant's trial counsel had an apparent strategy to use the MDIC interview to defendant's advantage in closing argument. Counsel argued to the jury that the video recording showed "[the interviewer] didn't really test [the victim]'s understanding of the truth and a lie," and that the interviewer admitted in her testimony that "young children are not adept at monitoring their own comprehension. Right? Kids don't really know if they're getting what the question is or if they're answering in the way the question asked for an answer. That children say things they understand and that we as adults think we need to." We do not second-guess trial counsel's tactical decisions. (Riel, supra, 22 Cal.4th at p. 1197 [whether to object is inherently a matter of trial tactics which the court will not second-guess].) And as we have noted, counsel's strategy is not constitutionally deficient just because it may not have worked. (Richter, supra, 562 U.S. at p. 109.) Moreover, counsel did achieve some success here. Defendant was acquitted on counts 5 and 6, the April 17th oral copulation and burglary (§§ 288.7, subd. (b), 459) and the jury found not true the count 4 enhancement allegation that the April 17th lewd act was committed during a burglary (§ 667.61, subd. (a)).

Defendant also argues that admission of the MDIC interview violated the Confrontation Clause under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177], and trial counsel was deficient for failing to object on that basis. However, Crawford does not apply where, as here, the declarant testifies and is subject to cross-examination at trial. (Id. at p. 59, fn. 9, & p. 68.) Defendant complains he did not have opportunity to confront the victim, because she testified and was excused before the MDIC interview was admitted into evidence. This does not negate the fact that the victim testified and that defendant had the opportunity to cross-examine her.

2. Prejudice

To establish prejudice, "[i]t is not enough `to show that the errors had some conceivable effect on the outcome of the proceeding.'" (Richter, supra, 562 U.S. at p. 104.) To show prejudice, defendant must show a reasonable probability that he would have received a more favorable result had counsel's performance not been deficient. (Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d 171, at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 698; accord, Ledesma, at p. 218.) The likelihood of a different result must be substantial, not just conceivable. (Richter, at p. 112.)

Even assuming for the sake of argument that counsel's performance was deficient, defendant fails to show prejudice. He argues he was prejudiced because the victim gave more details in the MDIC interview than she did at trial. In the MDIC interview, she said defendant used his tongue, hurt her by putting his tongue inside her "little tail," slobbered on her, and kissed her as if they were married. However, even though the MDIC interview provided more detail, and even though the jury asked to review the MDIC video and transcript during deliberations, it is not reasonably probable that defendant would have obtained a better result had the interview been excluded from evidence, given the victim's trial testimony, the victim's spontaneous declarations to her mother, defendant's own admissions to the police, his consciousness of guilt by trying to hide in the closet, the stepfather's testimony about finding defendant trying to hide in the closet wearing only his underwear and possibly socks, and defendant's blood on the victim. Moreover, the fact that defendant was acquitted on counts 5 and 6 related to the April 17 molestation and the jury found not true the count 4 enhancement allegation that the April 17 lewd act was committed during a burglary further cuts against a finding of prejudice.

Accordingly, we reject defendant's argument that his trial counsel rendered ineffective assistance of counsel by failing to object to admission of the MDIC interview at trial.

III. Substantial Evidence Claims

Defendant argues there was insufficient evidence of burglary because one cannot burglarize his own home. He also argues there was insufficient evidence of specific intent to commit a lewd act on the child at the time of entry and insufficient evidence of oral copulation. We disagree on all points.

When we review a claim that the evidence was insufficient to support a conviction, "the relevant question is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 573].) Under this deferential standard, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) "`[We presume] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" (People v. Catlin (2001) 26 Cal.4th 81, 139.) In other words, we draw all reasonable inferences in support of the judgment. (People v. McElroy (2005) 126 Cal.App.4th 874, 881.) Substantial evidence includes circumstantial evidence and the reasonable inferences flowing from it. (In re James D. (1981) 116 Cal.App.3d 810, 813.)

A. Substantial Evidence of Burglary of Bedroom within Own Home

Defendant argues a person cannot be convicted of burglarizing his own home. (§§ 459,10 460.11) He notes the evidence showed he lived in the home before the victim's family moved in, and there is no evidence regarding the terms of occupancy and whether the victim's family paid rent. Defendant relies upon People v. Gauze (1975) 15 Cal.3d 709, 713 (Gauze), in which the court held a burglary is an entry which invades a possessory right in a building and must be committed by a person who has no right to be in the building. The defendant in Gauze entered the living room of an apartment he shared with two others and shot one of them. (Id. at p. 711.) The court held the defendant entry was not burglary because he had the right to enter the living room. (Ibid.)

Another reason identified by our high court for its holding in Gauze was its recognition that a contrary holding would be inconsistent with the purposes of the burglary statute. (Gauze, supra, 15 Cal.3d at p. 715.) The court reasoned, "`Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation — the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence. The laws are primarily designed, then, not to deter the trespass and the intended crime, which are prohibited by other laws, so much as to forestall the germination of a situation dangerous to personal safety.' Section 459, in short, is aimed at the danger caused by the unauthorized entry itself. [¶] In contrast to the usual burglary situation, no danger arises from the mere entry of a person into his own home, no matter what his intent is. He may cause a great deal of mischief once inside. But no emotional distress is suffered, no panic is engendered, and no violence necessarily erupts merely because he walks into his house." (Ibid, italics added.)

Here, in contrast, defendant entered a bedroom the evidence indicates he had no right to enter. Section 459 punishes every person "who enters any house, room, apartment . . ." (italics added) with the intent to commit a felony therein. A person who goes into a house in which he has a possessory right to enter may still be convicted of burglary if he enters a room within the home that he lacks permission to enter. (People v. Abilez (2007) 41 Cal.4th 472, 508-509.) The defendant in Abilez, who was staying in a spare room in his mother's house, attacked and killed his mother in her bedroom within the house. He also broke into his sister's locked bedroom and stole property belonging to her. (Id. at pp. 481-484.) The Supreme Court rejected his argument that he could not be convicted of burglarizing his own residence. (Id. at pp. 508-509.) The prosecution had charged him with entering an inhabited "portion" of a building. (Ibid.) Even if he had permission to enter his mother's house, he did not have permission to enter her bedroom or his sister's bedroom. (Id. at p. 509.)

The same applies here. The information charged defendant with entering an "inhabited bedroom" of a dwelling. Given the evidence, it is reasonable to infer that defendant had no possessory right in the bedroom or the permission of the parents to enter at night.

The evidence showed the victim's family moved in with defendant about a year before the molestation. The house had three bedrooms. The victim's parents shared a bedroom with their infant. The victim and her other brother shared another bedroom, which the parents directed the children to keep locked at night. They had kept the room locked at night since they moved in. Defendant occupied the remaining bedroom. Defendant went into the children's bedroom, which he knew the parents customarily kept locked at night. Although he purportedly went in to check on the children, he apparently closed the door behind him, because the stepfather opened the door before he entered to check on the children. When defendant was caught inside the bedroom, he tried to hide in the closet. Looking at this evidence in a light most favorable to the prosecution, it can be reasonably inferred that the defendant did not have a possessory interest in the bedroom or permission to enter.

Our view of this evidence is consistent with the purpose of the burglary statute identified by our high court in Gauze. Defendant's entry into the bedroom presented a danger of harm to the children in his attempt to perpetrate the intended crime and a danger that their parents would react violently in anger or panic to the invasion, thereby inviting more violence. (See Gauze, supra, 15 Cal.3d at p. 715.) Thus, this case is in contrast to the situation where no danger arises from the mere entry of a person into his own home. (Ibid.)

There is no evidence that defendant had permission to enter the children's bedroom. To the contrary, that he did not have permission is apparent from the fact that the victim's parents locked that door at night, even though it could only be locked from inside, which vexed the parents on at least one occasion when the children refused to open the door in the morning because they did not want to go to school. The victim's mother testified that defendant said he could open the door with a bobby pin (not a key) and she asked him do so on one occasion. It is reasonable to infer from this testimony that defendant either had no key or concealed the fact that he did. Although the victim said in the MDIC interview that defendant had a key to open the bedroom door, that defendant may have had possession of a key he kept secret from the parents does not necessarily mean defendant had a possessory right to the bedroom or permission to enter.

It can be reasonably inferred from the evidence that defendant did not have a possessory right to children's bedroom as an occupant of the premises or the permission of the parents to do so. Further, the reasonable inference to be drawn from the evidence is that the victim did not have authority to allow him to enter to engage in sexual conduct with her. (People v. Sigur (2015) 238 Cal.App.4th 656, 660.)

We conclude there was substantial evidence of burglary.

B. Substantial Evidence of Specific Intent to Commit Lewd Act upon Entry

Defendant argues the evidence was insufficient to establish that he had the specific intent to commit a lewd act at the time he entered the bedroom. We disagree.

Burglary requires a specific intent to commit a felony at the time of entry. (People v. Holt (1997) 15 Cal.4th 619, 669.) Specific intent is rarely susceptible to direct proof and is usually inferred from the surrounding facts and circumstances. (Ibid.)

Specific intent to commit a lewd act at the time of entry may be inferred here from the evidence that (1) defendant closed the door after he entered the bedroom, (2) defendant had no pants on when he entered the child's room, (3) the conduct in which defendant engaged after he entered as described by the victim, (4) defendant's act of trying to hide in the closet, (5) defendant on a prior occasion committed a lewd act on the victim, as found by the jury, and (6) although defendant said he became attracted to the victim for first time after entering the bedroom on April 24, it was reasonable to infer he had a preexisting attraction, having molested her before.

Defendant argues the evidence of lewd intent was insufficient because he had cut his finger badly and was bleeding profusely when he entered the bedroom, and he said he was just putting the child back to bed after she asked for juice. But evidence from which a jury might have reached an opposite conclusion does not render insufficient the evidence supporting the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1054 ["`"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment"'"].) Moreover, the bleeding finger did not stop defendant from molesting the victim, so we do not see how it would stop him from forming the intent to molest the victim. Also, the jury disbelieved that defendant was merely putting the child to bed, and the jury could have reasonably concluded defendant did not realize how badly his finger was cut because of the alcohol he had consumed.

C. Substantial Evidence of Oral Copulation

Defendant contends there was insufficient evidence of oral copulation. Again, we disagree.

Oral copulation is "the act of copulating the mouth of one person with the sexual organ or anus of another person." (§ 288a, subd. (a).) Defendant was convicted of violating section 288.7, subdivision (b), which provides that anyone age 18 or older who engages in oral copulation with a child age 10 or younger is guilty of a felony. The jury was instructed, "Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Penetration is not required."

Here, defendant in his own statement to police admitted he kissed the victim "[r]ight there on her private parts," though he immediately backpedaled, saying, "Maybe," when the detective asked, "On her private parts?" Defendant also stated in that interview that his lips made contact with "the top" of the victim's vagina, close enough to her "slit" that his saliva may have entered her slit. Also, as we have noted, defendant admitted that he felt sexual desire for the victim. The DNA evidence showed that defendant could have been a minor contributor of DNA taken from the victim's labia. As the criminalist noted, "the probability that a random unrelated individual would by chance be included as a possible contributor to those DNA types that [she] tested was estimated to be approximately 1 in 78 African Americans, 1 in 52 Caucasians, and 1 in 51 Hispanics." The victim's mother testified that the victim used the Spanish word "`colita,'" to describe where defendant kissed her, which translates to "any part that would normally fit inside the underpants; anus, perineum, [or] vagina" according to the interpreter. At the MDIC interview, the victim demonstrated how defendant spread her legs apart before he kissed her. And in her trial testimony, the victim pointed to the doll's pubic area in describing where defendant kissed, as acknowledged in defense counsel's closing argument to the jury.

Again, defendant ignores the standard of review by citing evidence he considers favorable to him. Additionally, he argues the victim's ability to tell truth from fiction was questionable, and she made conflicting statements in her MDIC interview and trial testimony. However, defendant does not claim error in the trial court finding the victim competent to testify, nor does defendant develop any analysis on this point. Moreover, conflicting evidence does not render other evidence insufficient. (People v. Castro (2006) 138 Cal.App.4th 137, 140 [in our substantial evidence review, we determine "`whether . . . there is any substantial evidence, contradicted or uncontradicted,' "which will support the verdict].)

We conclude substantial evidence supports the verdict as to oral copulation.

IV. Consecutive Sentencing

Defendant argues the trial court erred in ordering consecutive terms on the two lewd act convictions (one determinate and one indeterminate) without stating reasons for its choice of consecutive as opposed to concurrent terms. The People respond defendant forfeited this issue by failing to ask the trial court to state its reasoning. (People v. Scott (1994) 9 Cal.4th 331, 353.) Defendant's reply brief says nothing about the People's forfeiture argument. We agree with the People that the matter is forfeited.

"A party in a criminal case may not, on appeal, raise `claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' if the party did not object to the sentence at trial." (People v. Gonzalez (2003) 31 Cal.4th 745, 751, citing People v. Scott (1994) 9 Cal.4th 331, 353.) The rule applies to cases in which the court purportedly erred because it failed to state any reasons. (Gonzalez, at p. 751.) Routine defects are easily prevented and corrected if called to the trial court's attention. (Ibid.) Of course, a defendant must have an opportunity to seek clarification or change after the trial court states the sentence it intends to impose. (Id. at p. 752.)

At the sentencing hearing, defendant did not tell the trial court it had failed to state reasons for choosing consecutive sentencing. He did argue in his sentencing brief, which the court indicated it had read and considered, that the trial court should order concurrent rather than consecutive sentencing. However, after the trial court stated the sentence, including consecutive sentencing on the determinate and indeterminate terms, defense counsel asked to and was allowed to interrupt to point out that the court initially said six years for the determinate count but then said eight years. The court apologized and corrected it to six years. Defense counsel did not assert any failure by the trial court regarding reasons for sentencing choices. The trial court then continued with credits and fines and then asked, "Anything from the defense before this case is concluded?" Defense counsel said, "No." The trial court asked the same of the prosecutor, who also said no. Defendant clearly had the opportunity to object about the court's failure to give reasons for the consecutive sentences.

We conclude defendant forfeited the challenge to the failure to state reasons for consecutive sentencing.

DISPOSITION

The judgment is affirmed.

NICHOLSON, Acting P. J. and DUARTE, J., concurs.

FootNotes


1. Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
2. At trial, the mother demonstrated with a doll to show where the victim pointed, but the record does not reflect where on the doll the mother pointed.
3. Defendant appears to accept the interpreter's translation as fact, conceding that the victim told her mother that defendant kissed her on what defendant on appeal calls "her private parts."
4. The nurse practitioner testified the vestibule is part of the genitalia, and the vestibular swab was taken from the labia, outside the hymen.
5. The victim had urinated at some point between the molestation and the examination.
6. In front of the jury, the victim pointed to the spot on a doll. No one verbalized her gesture for the record. For example, on direct examination, when she pointed to the spot on the doll and said, "There," nobody said where "[t]here" was on the doll. However, defense counsel acknowledged in closing argument to the jury that the victim "pointed to the pubic area of the doll."
7. We discuss Trimble, supra, 5 Cal.App.4th 1225, in more detail in our discussion about the first molestation event, post.
8. In light of our conclusion that the statements were admissible as spontaneous declarations under Evidence Code section 1240, we need not address limited admissibility under the fresh complaint doctrine.
9. Evidence Code section 1360 provides in part: "(a) In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another . . . is not made inadmissible by the hearsay rule if all of the following apply: [¶] (1) The statement is not otherwise admissible by statute or court rule. [¶] (2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability. [¶] (3) The child either: [¶] (A) Testifies at the proceedings. [¶] (B) Is unavailable as a witness [but there is corroborating evidence]. [¶] (b) A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement. [¶] (c) For purposes of this section, `child abuse' means an act proscribed by Sections 273a, 273d, or 288.5 of the Penal Code, or any of the acts described in Section 11165.1 of the Penal Code [including § 288 lewd or lascivious act]. . . ." (Italics added.)
10. Section 459 provides in part: "Every person who enters any house, room, . . . with intent to commit . . . any felony is guilty of burglary. . . ." (Italics added.)
11. Section 460 states in part that "[e]very burglary of an inhabited dwelling house . . . or the inhabited portion of any other building, is burglary of the first degree. . . ." (Italics added.)

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