People v. Vasquez

          GRIMES, J.

         SUMMARY

         Defendant William Vasquez was convicted of the crimes of rape by force or fear and lewd act upon a child 14 or 15 years of age. The victim was his daughter. He appeals, claiming the trial court erred by: (1) precluding him from cross-examining his daughter fully, as to her bias and motive to lie, by excluding evidence of the severity of her depression; (2) failing to give a unanimity instruction in connection with the lewd act charge; and (3) denying a defense request to instruct with CALCRIM No. 3516 (concerning the prohibition on dual convictions for a single event). We find no error and affirm the judgment.

         FACTS

         Defendant lived with his three children -- K., then 14 years old (the victim), and her younger brother and sister -- and their mother, Maria. K. shared a room with her brother. She was closer to her father than to her mother, but K. and her father argued a considerable amount during the months before the crimes in August 2007. Defendant was drinking a lot, and his arguments with K. would sometimes turn physical. Defendant also argued with and hit Maria, and K. wanted her mother to separate from defendant.

         The neighbors and K. called the police on different occasions when defendant hit K.’s mother. On one occasion in March 2007, the police took defendant away. After that incident, K. knew there was an outstanding warrant for defendant, and that if she called the police, defendant would be arrested, as he was not supposed to be in the home. K. was upset, “pretty depressed” and “in a lot of emotional pain” about her family circumstances, and wanted her mother to do something about it.

         On the evening before the crimes, defendant, Maria and K. had a conversation in which defendant asserted K. was dating an older man, and claimed he had a videotape of K. and the man having sexual intercourse. He later admitted he was just “testing” her; in fact, K. had never had sexual intercourse with anyone. K.’s mother told her that if something sexual were to happen between K. and an older man, that would be a crime.

         The following day, Maria was at work and K.’s brother was visiting a friend. K. was at home with her father and her sister (then two or three years old). Defendant returned to the subject of K. dating an older man, and called her a slut, a prostitute and a bitch. Defendant began hitting K., and then grabbed her by the hair and pulled her into her room. He pushed her into her brother’s bed and said that “he was going to show [K.] what a real relationship was.” K.’s sister opened the bedroom door, and defendant went to the door, pushed her out and closed and locked the door. K. tried to get up, but defendant again pushed her onto the bed. Defendant took off K.’s and his own pants and underwear, and said K. “was going to regret if [she told] anybody.” K. was screaming and defendant told her to shut up. Defendant got on top of K. and she couldn’t push him off.

         Defendant put his penis in K.’s vagina and kissed and sucked on both breasts. K. could tell that his penis was inside her vagina “[b]ecause it hurt.” While he was on top of her, defendant “was hitting [her], but not -- hard, ” on her arms, and pushing down on her. Defendant’s penis came out of K.’s vagina a couple of times. After the second time, K. managed to get up, get her clothes and run to her mother’s room, while defendant said, “No, I’m not finished.”

         K. telephoned her cousin, who was her best friend. K.’s aunt answered. K., who was crying hard and hysterical, told her aunt that defendant had raped her. The aunt told her to call the police and then to call her mother. K. hung up and called her mother. Maria told her to get her younger sister ready and that if anything were to happen, to call the police. Then defendant came into the room and K. told him she had “told [her] Mom.” Defendant began to hit K., and put a pillow over her head. K. then told defendant she had not told her mother, so that defendant would stop hitting her. Defendant left the room, and K. locked the door and waited for her mother.

         Meanwhile, the aunt went to K.’s home to check on K. The aunt asked a neighbor for assistance. The neighbor knocked on the apartment door and defendant answered. When the neighbor asked for K., defendant said she was not at home and closed the door. The aunt returned to her home and made calls to the apartment and to K.’s cell phone but received no answer. K. later called her aunt. Her aunt did not go back to K.’s apartment because K.’s mother was on her way there.

         When Maria arrived, she called K. on her cell phone and told her to come outside; K. did so and Maria then called the police. After speaking with K., the police found defendant sleeping in his vehicle, and detained him.

         One of the deputies took K. to the rape treatment center at the Santa Monica-UCLA Hospital. Michelle Darrow examined K. and collected swabs from her vaginal area, neck, breasts and mouth. There was no semen on any of the swabs. Darrow saw no tears or abrasions to the hymen or vaginal area and no injuries on K.’s body. K. was uncomfortable when Darrow used the speculum, and felt pain in her vaginal area.

         The police also took defendant to the rape treatment center for evaluation, and swabs were taken from his penis, scrotum, palms and mouth.

         Defendant was charged with the crimes of lewd act upon a child (count one, Pen. Code, § 288, subd. (c)(1)) and forcible rape (count two, Pen. Code, § 261, subd. (a)(2)), both felonies. At defendant’s trial, in addition to the facts we have just recited, the prosecutor elicited testimony from personnel at the rape treatment center and from criminalists who examined the swabs taken from K. and defendant.

         Darrow, who examined K. at the rape treatment center, testified that sexual assault victims often have no physical injuries. The criminalists recovered saliva from the samples taken from K.’s neck, her left breast and around her mouth. Defendant’s DNA was found on the swab from K.’s left breast. K.’s and defendant’s DNA were found on defendant’s penile and scrotal samples. K. was the major contributor to the DNA sample taken from defendant’s scrotal swab. According to criminalist Lavigne of the sheriff’s crime lab, the DNA profile from the major donor in defendant’s scrotal sample would only be found in one in 444.4 quintillion Hispanic individuals (and in 1.1 sextillion Caucasians and 13.3 sextillion Blacks).

Specifically, criminalist Gisele Lavigne testified that the DNA profile obtained from the left breast swab was consistent with a mixture from two individuals, and K. and defendant could account for all the genetic markers detected in the sample. Lavigne also calculated the number of others in the population who could be included as possible contributors; she calculated that she would have to analyze approximately 288.8 million Caucasians to find at most one other person who would be included in the profile; the figure for the Black population was 1.4 billion people, and for the Hispanic population, 407 million people.

         The defense presented evidence from Dr. Earl Fuller, who is board certified in obstetrics and gynecology. Fuller retired in 1996, after which he became an instructor at the University of California Los Angeles cancer center, City of Hope, and Loma Linda University, and an assistant clinical professor of obstetrics and gynecology at the University of California Irvine. Fuller had performed some sexual assault examinations, most of them “20 years or so ago.”

         Fuller reviewed the police, lab and sexual assault examination reports, and opined that K.’s version of events was inconsistent with the results of the sexual assault examination. This was because the rape treatment center findings indicated no bruising (despite K.’s claim defendant hit her several times); and the genital examination produced no findings of injury, while Fuller “would have expected to have seen some tearing or some lacerations or something that proved there were some -- some penetration through the hymenal ring.” Fuller acknowledged it was possible for a victim of sexual assault to sustain no injury during the assault, but said that such a result would be “very rare” in the case of a virginal child.

         The defense also presented testimony from Detective Dan Morgan, who spoke with K.’s mother by telephone the day after the incident. Maria told Morgan that she and defendant had had sex on a few occasions, several months earlier, on the beds in K. and her brother’s room. Maria later (just before trial) told Morgan that she had not had sex in the children’s room, did not remember telling Morgan that she had, and Morgan might have misunderstood what she said. Morgan testified it was possible that he misunderstood.

         The prosecution presented rebuttal testimony from Toyetta Beukes, a nurse practitioner who had performed some 2900 gynecological exams on patients reporting sexual assaults. Beukes reviewed K.’s examination records. She testified that it was “not uncommon for a 14-year-old to have a normal exam after being sexually assaulted.”

Beukes explained that K.’s body was that of a mature woman (“she’s 14, ” “[s]he’s estrogenized”); the genitalia can stretch to accommodate a penis; and a woman can be lubricated by secretions without foreplay.

         The jury returned verdicts of guilty on both counts of the information. The court sentenced defendant to the high term of eight years in state prison on the rape conviction, and to a concurrent term of three years (the high term) on the lewd act count, and made various other orders not at issue in this appeal.

         DISCUSSION

         Defendant contends the trial court erred in evidentiary and instructional rulings. We find no merit in defendant’s claims.

         1. The trial court did not err in limiting cross-examination of K. concerning her depression.

         Before the trial began, the prosecutor moved to exclude, as irrelevant and under Evidence Code section 352, evidence that “our victim might have issues with cutting herself, and also depression.” Defense counsel stated he had not decided whether “to really get into that with her.” The court stated that, under Evidence Code section 352, “I don’t think that it’s particularly probative, ” and its tentative decision was to grant the prosecutor’s motion. The court told defense counsel that, if counsel wanted the court to reconsider, counsel should give the prosecutor and the court advance notice.

         At trial, defense counsel elicited evidence on cross-examination about K.’s frequent arguments with defendant (and about defendant hitting her), her conversations with her mother urging her to separate from defendant, her knowledge that defendant would be removed from the home if she or someone else called the police, and that she was “in a lot of emotional pain about what was going on with [her] family....” Then, defense counsel requested a sidebar, “[i]n an abundance of caution, ” and stated:

         “I wasn’t going to specifically challenge her with the fact of what we talked about before in the [Evidence Code section] 402. Cutting herself. [¶] But I was going to ask her is there anything that -- that you did because you were depressed. Or any actions that you took. [¶] Tried to talk to this person, tried to talk to my mom, tried to do this or this or this. But I think it is relevant more now, because it’s an indication of -- basically, desperation. An indication of basically -- controlled pain, or how depressed she was. [¶] Not that she’s trying to commit suicide. Just cutting. That’s a different thing. But -- as a motive to make something up. Or to exaggerate the facts.”

         The court found that the subject was not probative, involved significant time consumption, and was potentially prejudicial, and directed counsel “not to ask that question.” The court concluded: “We’ve gone about as far as we’re going to go in the area of isn’t it true that you were depressed, and you really want him out of your life, and that’s why you’re fabricating the rape. [¶] We are basically done in that regard.”

         On re-cross-examination, after having questioned K. about her father hitting her and her mother doing nothing about it, counsel asked, “By the time this happened, ... you had gotten severely depressed; is that right?” The prosecutor objected on relevance and Evidence Code section 352 grounds, and the court sustained the objection.

         Defendant contends that the rulings just described violated his rights to present evidence in his defense, to confront witnesses against him, to a jury trial and to due process. He claims the proposed cross-examination was relevant to K.’s credibility (to show the extent of K.’s capacity to perceive the events to which she testified and to show the existence of bias and a motive to lie), and he was entitled “to cross-examine K. to explore the degree of her desperation and depression, and to expose what lengths she would go to in order to relieve her situation.” We find no error in the trial court’s ruling.

         First, the trial court has broad discretion under Evidence Code section 352 to assess “whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.” (People v. Rodrigues (1994)8 Cal.4th 1060, 1124.) Second, “[a]s a general matter, the ‘[a]pplication of the ordinary rules of evidence... does not impermissibly infringe on a defendant’s right to present a defense.’ ” (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 [“excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense”]; see also People v. Smithey (1999) 20 Cal.4th 936, 996 [“if the exculpatory value of the excluded evidence is tangential, or cumulative of other evidence admitted at trial, exclusion of the evidence does not deny the accused due process of law”].)

         Here, we see no abuse of discretion and no violation of defendant’s due process rights. Defense counsel cross-examined K. on her relationship with her father, including their arguments, his hitting K., his drinking, his abuse of Maria, K.’s desire that her mother separate from defendant, her knowledge of the outstanding warrant, and her “emotional pain.” K. testified that she was “pretty depressed” about her family situation. Defense counsel suggested no basis for inferring (and proffered no evidence) that the severity of a person’s depression is congruent with his or her motivation to lie. On this record, we cannot disagree with the trial court’s conclusion that further probing of “how depressed she was” would be of marginal relevance and its probative value outweighed by concerns over time consumption and prejudice. Any such evidence would be cumulative of evidence already elicited, and accordingly its exclusion did not implicate defendant’s due process rights. (See People v. Smithey, supra, 20 Cal.4th at p. 996; People v. Fudge, supra, 7 Cal.4th at pp. 1102-1103.)

         2. The trial court did not err by failing to give a unanimity instruction on the lewd act count.

         Defendant contends his conviction on the lewd act count must be reversed because the trial court failed to give a unanimity instruction. Again, defendant is mistaken.

         When a defendant is charged with a single criminal act, and the evidence presented “tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act.” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534 (Melhado).) The court has a sua sponte duty to give a unanimity instruction when no election has been made by the prosecutor. (Ibid.) A unanimity instruction is not required “if the evidence shows one criminal act or multiple acts in a continuous course of conduct.” (People v. Jantz (2006) 137 Cal.App.4th 1283, 1292 (Jantz).)

         Here, defendant was charged with one count of committing a lewd or lascivious act on a 14-year-old child. The jury was instructed that the prosecutor had to prove that defendant “willfully touched any part of a child’s body, either on the bare skin, or through the clothing, ” and did so “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child....”

         While discussing jury instructions, the trial court stated its understanding that the prosecutor’s theory was that the lewd act occurred when defendant allegedly kissed K.’s breasts, “and that the rape count is separate from the act of kissing the breasts. [¶] As long as that’s made clear to the jury during argument, and they’re not left to infer that the defendant’s act, if it occurred, of rape, qualifies as the lewd act with minor. [¶] So Ms. Mendoza [the prosecutor], it’s important in your argument you make sure that it’s clear that your theory of the case and the factual underpinnings are separate and discrete acts, and separate and discrete offenses.”

         The prosecutor heeded the court’s advice. In her closing argument, she put up slides showing the elements of each crime, and discussed “how the People have proven each and every element....” The prosecutor stated:

         “Count 1 in this case involves lewd or lascivious act on a child of 14 or 15 years old. Element number one, that the defendant willfully touched any part of a child’s body, either on the bare skin, or through the clothing. [¶] How do we know that this element has been met? Well, [K.] testified. And she told us that her father kissed her on her breasts. We also know that what she’s telling us is true because of the amylase test that was done by Miss Licht in this case. [¶] These samples did come back -- the left breast samples came back positive for the presence of amylase.”

         Then, in discussing the second element of the lewd act count, defendant’s intent, the prosecutor stated that, “before he kissed his daughter on her breasts, the defendant obviously did not state” his intent. The prosecutor told the jury to look at defendant’s actions: “First, the act of kissing someone in that area. The purpose of that is to appeal to or arouse the passions of that person.” Further on, the prosecutor said: “That’s how we know that he, when kissing her breasts, committed that act with the intent of arousing or appealing to the passions of his own daughter.” And, in discussing the lesser-included offense of assault, the prosecutor said: “Did the defendant assault his daughter when he kissed her breasts? Sure, he did. But he did more than that. He did it with the intent of arousing her passions. [¶]... And he kissed his own daughter’s breasts.”

In her rebuttal argument, the prosecutor talked about the “one-witness rule, ” stating: “If you believe [K.] beyond a reasonable doubt, then that would be enough to prove both of the charges in this case. [¶] One, that he kissed her breasts for the [Penal Code section] 288 charge. And the second one was the forcible rape.”

         Despite the clarity of the prosecution’s argument, defendant contends that the trial court should have instructed the jury with the CALCRIM No. 3500 unanimity instruction, namely that: “The People have presented evidence of more than one act to prove that the defendant committed this [the lewd act] offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed.” Defendant argues that K. testified “about multiple instances of lewd conduct, ” as her description of the incident showed that defendant pushed her onto the bed twice, removed her pants, removed her underwear, mounted her, touched her breasts, kissed her breasts, sucked her breasts, kissed her chin, kissed her neck, and raped her. Defendant contends a juror could have found defendant guilty of the lewd act charge “based on any one of the 10 acts” and “notwithstanding any argument by the prosecutor.” Defendant misunderstands the law.

         A unanimity instruction is required only “when no election has been made” by the prosecutor. (Melhado, supra, 60 Cal.App.4th at pp. 1534, 1539 [“Because the prosecution’s election was never clearly communicated to the jury, the trial court should have instructed on unanimity”].) Melhado is illustrative. There, the defendant was charged with one count of making a criminal threat, but the evidence presented established that he committed “two acts of making terrorist threats, each of which could have been charged as a separate offense....” (Id. at pp. 1532, 1539.) The prosecutor told the court, out of the jury’s presence, that he was relying on “the 11 a.m. threat” (id. at p. 1535), but the prosecutor’s argument also made reference to “the 9 a.m. event....” (Ibid.) While the prosecutor’s argument could be parsed “in a manner which suggests that more emphasis was placed on the 11 a.m. event than on the others” (id. at p. 1536), the jury was never informed “that the prosecution had elected to seek conviction only for the 11 a.m. event....” (Ibid.) And, the “evidence regarding the 9 a.m. event established that it, too, could have qualified as a violation” of the criminal threat statute, so the court could not say “beyond a reasonable doubt that each juror agreed on the particular criminal act that formed the basis for the verdict.” (Ibid.)

         By contrast, here there is no need to parse the prosecutor’s closing argument. As Melhado states, “[i]f the prosecution is to communicate an election to the jury, its statement must be made with as much clarity and directness as would a judge in giving instruction. The record must show that by virtue of the prosecutor’s statement, the jurors were informed of their duty to render a unanimous decision as to a particular unlawful act.” (Melhado, supra, 60 Cal.App.4th at p. 1539.) In this case, the record is clear. The prosecutor relied on defendant’s act of kissing his daughter’s breasts as the lewd act, and nothing else; her closing argument could scarcely have been clearer or more direct. (See also Jantz, supra, 137 Cal.App.4th at p. 1292 [rejecting claim that unanimity instruction was required in criminal threats case; “[a]ssuming there were two threats rather than a single threat related by [the victim] to multiple coworkers, the record shows that the prosecutor clearly informed the jury in opening and closing argument that the People were electing the threat set forth in [witness] Hall’s testimony as the basis of the criminal threats offense”; this election “obviated the necessity of a unanimity instruction”].) Unlike the case in Melhado, here we can say beyond a reasonable doubt that the jurors must have agreed on the particular criminal act -- kissing K.’s breasts -- that formed the basis for its verdict.

         3. The trial court did not err by denying the defendant’s request to instruct the jury with CALCRIM No. 3516.

         The jurors were instructed (CALCRIM No. 3515) that each of the counts charged was a separate crime and that they “must consider each count separately and return a separate verdict for each one....” Defendant, however, requested that the jury be instructed with CALCRIM No. 3516, which states that the charges “are alternative charges, ” and “[i]f you find the defendant guilty of one of these charges, you must find (him/her) not guilty of the other. You cannot find the defendant guilty of both.” Defendant argued that “I just think that -- it would be appropriate to avoid confusion by the jury.” The prosecutor opposed the instruction, and the court refused to give it, observing that: “It’s pretty clear to me that the prosecution has alleged two distinct counts.... Namely, the lewd act with a child, and forcible rape.” The trial court elaborated (as recounted in section 2, ante) by explaining its understanding of the prosecution’s theory that the lewd act occurred when defendant kissed K.’s breasts and the rape count was separate from that act.

         Defendant argues that it was error to refuse to instruct that the lewd act and rape counts were alternative charges, because “the jury could have convicted [defendant] of count one [the lewd act] based on the rape, which was also the basis for criminal liability in count two [forcible rape].” We have already disposed of the claim that the jury might have convicted defendant of a lewd act based on the rape: as previously discussed, the prosecution based the lewd act charge on the act of kissing K.’s breast, not on the act of raping her. As the trial court observed, these were two distinct criminal acts. The CALCRIM No. 3516 instruction is applicable only to alternative charges, where a defendant cannot be found guilty of both crimes. This is not such a case.

         DISPOSITION

         The judgment is affirmed.

          We concur: RUBIN, Acting P.J., O’CONNELL, J.

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.