People v. Pimentel CA2/2 ( 2020 )

Filed 9/28/20 P. v. Pimentel CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B301405
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA075212)
v.
GABRIEL PIMENTEL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Shannon Knight, Judge. Affirmed.
Richard D. Miggins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Paul M. Roadarmel Jr., and Allison
H. Chung, Deputy Attorneys General, for Plaintiff and
Respondent.
Appellant Gabriel Pimentel sexually abused four young
granddaughters at his home. He was convicted by jury of nine
counts of committing lewd and lascivious acts on children under
the age of 14 and one count of continuous sexual abuse. (Pen.
Code, §§ 288, subd. (a), 288.5.)1 The 10 counts involved multiple
victims; as a result, appellant was sentenced to consecutive terms
in state prison of 25 years to life, for an aggregate term of 250
years to life. (§ 667.61, subds. (e)(4), (j)(2).)
We conclude that substantial evidence supports the jury’s
continuous sexual abuse finding; there was no abuse of discretion
in admitting evidence of uncharged sex offenses; the credibility of
defense witnesses could be undermined with testimony about
appellant’s domestic abuse; appellant could be cross-examined
about his claim that the prosecution witnesses were untruthful;
and the “One Strike” law was properly imposed. We affirm.
FACTS AND PROCEDURAL HISTORY
Crimes Against L.C.
L.C., born in 2006, is appellant’s granddaughter. She was
12 years old at trial. L.C. stayed at appellant’s home in
Palmdale. He slept on a mattress on the floor near L.C.
When L.C. was seven or eight years old, appellant called
her to the bedroom while his wife was in the shower. At his
request, L.C. lay beside him on his bed. He began rubbing her
thigh over her clothing, then reached under her clothing and
rubbed her private part. This was the first time he touched L.C.
in a way that made her feel uncomfortable.
When L.C.’s grandmother turned off the shower, appellant
stopped rubbing L.C. and told her to go, saying “this is our little
1 Undesignated statutory references are to the Penal Code.
2
secret.” L.C. worried “if I told anyone, I would get in big trouble.”
Because she felt a little afraid of appellant, she did not tell
anyone that he touched her.
L.C. recalled a second incident when she was seven or eight
and her grandmother was away shopping. Appellant told L.C. to
get on the bed with him and “started immediately touching my
private part” over her clothing. After a minute or two, L.C. made
appellant stop by “making an excuse that I needed to use the
restroom.” L.C. feared appellant and did not tell anyone he
touched her vagina. She drew circles on a diagram to show the
area he touched.
L.C. was close to her grandparents. She is heartbroken
that they no longer see her since she told detectives the truth.
In counts 1 and 2 of the information, appellant was charged
with committing lewd and lascivious acts on L.C., a child under
age 14. (§ 288, subd. (a).) He was convicted on both counts.
Crimes Against S.C.
S.C., born in February 2009, is L.C.’s younger sister. She
was 10 years old at trial. She often visited appellant and her
grandmother and was close to them.
When S.C. was five, appellant touched her in a way that
was uncomfortable while her grandmother was in the kitchen.
Appellant was on the bed. He touched S.C.’s private part over
her clothing with an upturned palm, opening and closing his
fingers. Afterward, he told her not to tell anyone. She felt
scared, “like something bad would happen.”
When S.C. was nine, appellant called her and her younger
sister A.C. into his bedroom and touched the private parts of both
children. He touched S.C. in the same way as before. S.C. saw
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him touch A.C.’s private part as well. The children were playing
an electronic game on a tablet while appellant touched them.
S.C. went to the living room afterward and did not tell
anyone that appellant touched her. Later, she spoke to detectives
about it. She marked the vaginal area on a drawing to show
where appellant touched her. No one told her to make up stories
about appellant to get him in trouble.
In counts 3 and 4, appellant was charged with committing
lewd and lascivious acts upon S.C., a child under age 14. (§ 288,
subd. (a).) He was convicted on both counts.
Crimes Against A.C.
Appellant’s granddaughter A.C. was born in February 2011
and was eight at the time of trial. She used to visit him, and
sometimes stayed overnight, with her sisters L.C. and S.C.
A.C. testified that when she was five or six years old,
appellant “made me uncomfortable and upset.” She was lying on
the bed at his home while her grandmother was in the kitchen.
Appellant lay down next to her, “told me not to tell anybody, and
then he started touching my private part” over her clothing. She
demonstrated how he opened and closed his thumb against her
body. Appellant’s conduct made A.C. feel uncomfortable, weird
and confused. She did not tell anyone “because I was scared if he
was going to do something to me.”
After the initial incident, appellant touched A.C.’s private
part “the same way” “a lot of times” and “a bunch of times” in the
bedroom or living room. It happened “every time” she visited and
they were alone. Once, he touched her and S.C. the same way
while they played together. A.C. saw him touch S.C. A.C. drew a
circle between the legs of a cartoon character to show where
appellant touched her private part.
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After A.C. spoke to her parents and detectives about
appellant, she no longer sees her grandparents; they do not talk
to her. She averred that she is telling the truth. No one asked
her to make up stories about her grandfather to get him in
trouble.
In counts 5, 6, and 7, appellant was charged with
committing lewd acts upon A.C., a child under age 14, and
continuous sexual abuse of a child with whom he resided or had
recurring access. (§§ 288, subd. (a), 288.5.) He was convicted on
all three counts.
Crimes Against S.M.
S.M. is appellant’s granddaughter, born in 2010. She was
eight at trial. L.C., S.C., and A.C. are her cousins. S.M. was
close to her grandparents and often visited them.
When S.M. was seven, appellant touched her three times in
a way that made her feel uncomfortable. The first time, she was
on the living room couch next to appellant; her siblings were in
the same room, distracted by their telephones. She testified that
appellant “told me to sit in his lap and he started touching me.”
He put her on his lap, facing away from him, and massaged
inside her clothes, with his skin touching hers, on “the edge” of
her vagina.
After “a little while” of rubbing, S.M. grabbed her phone
and said something was wrong with it to distract appellant
because “I didn’t want to get touched.” Appellant stopped. Later,
at his request, “we went in his room and he told me to lay on the
bed” with him. Appellant asked, “if I tell you a secret, will you
tell anyone?” S.M. replied, “I will, yes.” Appellant then asked if
she wanted to rejoin her siblings in the living room and S.M.
agreed because “I was uncomfortable.” S.M. did not tell her
5
siblings or parents that appellant touched her “because I was too
scared” appellant would “get mad.”
The second time appellant touched S.M., she was in the
backyard of his home; she, her siblings, and A.C. were playing in
his swimming pool. S.M. left the pool and appellant asked her to
sit in his lap on a chair. She stated, “so I sat on his lap and he
started touching me in the same spot in the same way,” by her
private part. He touched her for three minutes. S.M. does not
know if A.C., seated nearby, saw what was happening. S.M. did
not tell anyone right after it happened.
In the third incident, S.M. and appellant were in the
kitchen. Appellant asked her to approach, turned her to face
away from him and began touching her in the spot near her
private part. S.M. did not recall how long he touched her. He did
not say anything during the incident. A few weeks after the last
incident, S.M. decided to tell her mother what happened because
“something was just telling me in my head to tell her, like, it’s not
good that he did that to you.”
S.M. marked the area between the legs of a cartoon
drawing to show where appellant touched her private part. No
one asked her to make up stories about appellant to get him in
trouble. She testified that she is telling the truth about him.
In counts 8, 9, and 10, appellant was charged with
committing lewd and lascivious acts on S.M., a child under age
14. (§ 288, subd. (a).) He was convicted of all three counts.
Uncharged Sexual Propensity Evidence
Appellant grew up in a large family, with 13 siblings. The
court allowed appellant’s sisters to testify—in descending order
from older to younger—that he molested them when they were
children.
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Appellant’s sister A.P. is 10 years younger than appellant.
When A.P. was four or five years old, she awoke to find
appellant’s tongue in her mouth. He touched her sexually
“several times per week, any opportunity he had.” This occurred
when they were alone or even right in front of or around the
corner from other people. He grabbed and pretended to hug or
tickle A.P. when others were present but was rubbing his erect
penis on her from behind, and she could feel it. When they were
alone, he was more aggressive, “everything from grabbing my
vagina to sticking his hand down my pants, sticking his finger
inside of me.” Appellant would enter the bathroom while A.P.
was showering and grope her buttocks and vagina.
A.P. did not tell her parents about appellant’s behavior
until she was much older. At the time it occurred, she was a
child and was ashamed, scared, and disgusted. When she told
appellant to stop touching her, he would say, “you know your
boyfriend’s going to do it when you’re older. You’re going to like
it when you get older. What’s the difference if I do it? Everybody
does it.” As she got older, he told her that their parents would
kick them out of the house if she informed on him “and then he
could do whatever he wanted to me.” The abuse stopped after
A.P. turned 11 and could fight off appellant.
A.P. tried to monitor younger siblings to protect them from
appellant. When A.P. was 15, she overheard her seven- and 10-
year-old sisters talking; she confronted them and they admitted
“that they had both been molested” by appellant. After that, A.P.
spoke to all siblings and warned them they had to protect each
other from appellant. When A.P. eventually told her mother that
appellant molested her for years, and five of her siblings as well,
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her mother did not believe it and blamed A.P. A.P. wants to stop
appellant and has no reason to fabricate her testimony.
I.P. is a year younger than her sister A.P. I.P. asked family
members to leave the courtroom during her testimony because
she feels “shame.” She testified that she was around age six
when appellant sexually molested her in the family home. “It
happened several times a week” for years, in the bathroom. He
stopped when she was 10 or 11 and “he moved on to my sisters.”
During these incidents, appellant and I.P. were fully
disrobed. She stated that appellant would turn her to face away
from him, “put his penis against my anus and would fondle me
from behind on my vagina.” The molestations would last a
minimum of 10 minutes. Sometimes, he made her kiss or lick his
penis. She felt she had to comply. He would threaten her not to
tell anybody, saying that their parents would be mad, or would
hit her, or kick her out of the house. On 20 to 30 occasions,
appellant made her stroke his penis when they were in the back
of the family station wagon.
Appellant’s sister L.B. admitted being “very angry” because
he raped her when she was a child. He initially told her he
wanted to touch her when she was seven or eight years old and
kissed and caressed her in the family car.
L.B. recounted that when she was nine or 10 years old,
appellant told her to go into the bathroom with him, over her
objections. She was “very scared” of appellant because he
threatened her. Appellant was naked. He locked the bathroom
door. L.B. used the toilet and after she finished appellant licked
her vagina and made her kiss his penis when she refused to put it
in her mouth. Around the same age, appellant rubbed L.B.’s
8
clitoris and inserted his finger in her vagina, under her panties,
as she lay on a bed to take a nap.
When L.B. was 12, appellant raped her. He made their
siblings leave the house and locked the door. He took L.B. to a
back bedroom, bent her over and put his penis in her vagina. He
had his hand over L.B.’s mouth so she would not scream.
Afterward, L.B. told her younger sister what happened. L.B. can
recall the most traumatic incidents involving appellant but has
blocked out other incidents. L.B. went to appellant’s home once,
20 years ago, because she wanted to make sure he was not
molesting his daughters.
V.G.R., born in 1976, is the youngest of appellant’s siblings.
She testified that when she was six or seven, appellant picked
her up from the home of an older sister and drove her to a dark
parking lot; she remembers crying “and then I blacked out.”
When she was eight, appellant had her lie on top of him at the
family home and pulled her up and down to create friction.
V.G.R. remembered the incident in which appellant locked her
outside the house while he stayed inside with L.B. for 10 or 15
minutes; afterward L.B. was crying and years later said
appellant had raped her.
Defense Evidence
Appellant’s son Gabriel Pimentel, Jr. testified that L.C. has
lived with appellant since she was two months old. Appellant
slept on a mattress on the floor near L.C. S.C. and A.C. spent
several hours at appellant’s home “pretty much five days out of
the week.” Sometimes, they spent the night at appellant’s home.
Pimentel, Jr. never saw appellant act inappropriately.
Pimentel, Jr. works over 40 hours a week at his job and
was at work while the victims were at appellant’s home. Though
9
Pimentel, Jr. was not at the house 24 hours a day, he claimed
that appellant, who retired more than 10 years ago, “never had
the kids alone.” Pimentel, Jr. is certain appellant is innocent
even though his own young daughter, I.M., accused appellant of
molesting her at age four. Pimentel, Jr. does not believe I.M.
because there was no witness “or proof of her being touched.” He
is not on speaking terms with his sisters, the mothers of the
victims in this case.
Appellant’s oldest sister, Josefina Negrete, testified that
her sisters did not tell her appellant molested them and she did
not see him act inappropriately. She was married and left home
at age 18, when L.B. was five years old. Negrete was not close to
her sisters growing up or as an adult. She learned about the
accusations against appellant from a cousin.
Appellant’s wife Ofelia Pimentel testified that she never
left the house without her husband and never left him alone with
her granddaughters in the master bedroom. She spends a lot of
time in the kitchen, only 10 steps from the bedroom. She has
never seen appellant act inappropriately with the children. She
has raised L.C. since the child was two months old. A.C. and S.C.
came to her house “frequently,” “almost on a daily basis.”
Mrs. Pimentel knows her granddaughters accuse appellant
of molesting them. She chose to believe appellant over his
accusers. She never left the children alone with appellant. She
does not know how to search the Internet and denied using a
Gmail account associated with her home to search for prurient
material about grandfathers molesting prepubescent
granddaughters. She denied that appellant ever beat or abused
her.
10
Appellant testified. He denied touching his granddaughter
I.M. inappropriately and was not charged with a crime. He
denied molesting his sister A.P., saying he was always in school
or at work and rarely home “so I couldn’t have done that.” He did
not ask his sister I.P. to kiss or lick his penis because “there was
no time for me to be around and to be doing stuff like that” and
he never threatened her to stay silent. He denied licking or
touching L.B.’s vagina or raping her while covering her mouth to
silence her. He denied rubbing against his sister V.G.R. or
touching her inappropriately. He has a “very good” relationship
with his daughters and grandchildren, who were at his house “all
the time.”
Appellant testified that his granddaughters are “not
allowed to go in my bedroom” because he keeps medications and
syringes there; however, he agreed his granddaughters sleep in
his bedroom but he is never alone with them. He slept on a
mattress on the floor near his wife and L.C. He denied touching
his granddaughters on the vagina or telling them to keep it a
secret. He only hugged and kissed like a grandfather.
Appellant saw his granddaughters testify, and even cry in
court, but accused them of lying that he touched their vaginas.
The testimony from his sisters about his molestations was “not
true.” He has no idea why four sisters and four granddaughters
would accuse him of molestation.
Appellant stays home since retiring from his construction
job in 2005. Since 2005, his wife “never” left the house without
him and is “with me all the time.” He “never was alone with my
grandkids.”
Appellant uses a cell phone; his home has Internet with
WiFi. He knows how to search the Internet but denied searching
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on Ofeliapim9@gmail.com for material about grandfathers having
sex with six-year-old granddaughters. Appellant denied beating
his wife or leaving her on a freeway shoulder at night.
Rebuttal Testimony
On rebuttal, A.P. testified that Ofelia admitted appellant
hit her, leaving bruises on her eye and a thick lip. Ofelia showed
A.P. her neck and said appellant had choked her; further, he left
Ofelia on the side of the 2 Freeway at night. Ofelia was “in tears”
when she told A.P. that appellant “gets mad over nothing.”
Appellant’s daughter, E.M., testified that she left S.M.
alone with appellant twice a week while driving her mother,
Ofelia, to do errands. She recalled that appellant “choked my
mom” and was verbally abusive to Ofelia. She helped appellant
set up the Google account Ofeliapim9@gmail.com.
The investigating detective testified that she authored a
search warrant for appellant’s Google account. Google supplied
information showing that searches for grandfather/grandchild
pornography were made from appellant’s home in 2017.
DISCUSSION
1. Evidence Supporting the Section 288.5 Conviction
Appellant contends that “the evidence was insufficient to
establish the continuous sexual abuse of [A.C.], Count 7, lasted at
least three months as required pursuant to section 288.5.”2 We
2 The statute criminalizes sexual abuse by “Any person
who resides in the same home with the minor child or has
recurring access to the child, who over a period of time, not less
than three months in duration, engages in three or more acts of
substantial sexual conduct with a child under the age of 14 years
at the time of the commission of the offense . . . or three or more
acts of lewd and lascivious conduct, as defined in Section 288,
12
review a challenge to the sufficiency of the evidence by examining
the record in the light most favorable to the judgment, looking for
reasonable, credible evidence that would allow any rational trier
of fact to find the essential elements of the crime beyond a
reasonable doubt. (People v. Edwards (2013) 57 Cal.4th 658,
715.) We presume “ ‘the existence of every fact the trier could
reasonably deduce from the evidence.’ ” (Ibid.)
The jury found that appellant engaged in three or more
lewd and lascivious acts with A.C., when he resided with or had
recurring access to her from February 6, 2017, to October 19,
2017. We conclude that substantial evidence supports the
finding.
A.C. was born in February 2011. She testified that
appellant first molested her when she was five or six years old,
which would fall between February 2016 and February 2018.
The last molestation of A.C. occurred on a day when S.C. was
simultaneously molested. A few weeks later, in November 2018,
S.C. spoke to her mother and detectives about the abuse. The
molestations of A.C. may have started as early as February 2016
(when A.C. turned five); even using a February 2017 starting
date, many months lie between then and November 2018, far
more than the minimum of three months specified in section
288.5.
A.C. described the first molestation with specificity. It
occurred in the bedroom while her grandmother was in the
kitchen; appellant told her “not to tell anybody”; she showed the
jurors how he rubbed his thumb against her “private part”; she
felt uncomfortable, weird, confused, and scared. Later, A.C.
with a child under the age of 14 years at the time of the
commission of the offense.” (§ 288.5, subd. (a).)
13
made the same back-and-forth motion to show how appellant
touched her private part in the last molestation. A.C. said the
“private part” is between the legs. A.C. described “the kind of act
or acts committed with sufficient specificity” to enable the jury to
determine that lewd conduct occurred. (People v. Jones (1990) 51
Cal.3d 294, 316, italics omitted.)
A.C. next testified that appellant touched her private part
“the same way” “a lot of times,” “a bunch of times,” and “every
time” she visited him. She stated that she visited a lot of times.
The frequency of her visits was corroborated by appellant and his
wife, who testified that their granddaughters were at their home
“all the time” and “almost on a daily basis.”
The testimony adequately describes the number of acts
committed with sufficient certainty to support a finding that at
least three lewd and lascivious acts occurred. The specificity
requirement is met by a child victim who gives a “general time
period” and describes a sufficiently certain number of acts, such
as “every time we went camping” or “twice a month.” (People v.
Jones, supra, 51 Cal.3d at p. 316.) The jury could reasonably
infer that “a lot” or “a bunch” of molestations were more than
three, particularly if it occurred “every time” A.C. visited
appellant, which was on an almost daily basis.
The jury believed A.C. Her youth is not a disqualifying
factor. Even if her performance as a witness was different from
an adult, “that does not mean that a child is any more or less
credible a witness than an adult.” (§ 1127f; People v. Jones,
supra, 51 Cal.3d at pp. 315–316.) We cannot say, on this record,
that “ ‘ “upon no hypothesis whatever is there sufficient
substantial evidence to support” ’ ” a conviction for continuous
14
sexual abuse of a child. (People v. Zamudio (2008) 43 Cal.4th
327, 357.)
2. Uncharged Sexual Offenses With Siblings
Appellant asserts that the court improperly allowed his
sisters to testify that he molested them in their childhood. He
claims prejudice because the incidents “were more egregious than
the charged offenses, were remote in time,” and make him
“appear to be life-long pedophile who preyed on family.” The
court has broad discretion to admit or exclude evidence of prior
sex offenses, which are “ ‘ “particularly probative” ’ ” in sex crime
prosecutions. (People v. Loy (2011) 52 Cal.4th 46, 61.) The ruling
will stand unless it is arbitrary, whimsical, or capricious as a
matter of law. (People v. Robertson (2012) 208 Cal.App.4th 965,
991.)
Evidence Code section 1108 allows evidence of other sexual
offenses unless the court, in its discretion, determines that its
probative value is substantially outweighed by the probability
that its admission will create a substantial danger of undue
prejudice, confuse the issues, or mislead the jury under Evidence
Code section 352. The court weighed the prejudice to appellant
and found the evidence admissible. It is undisputed that the
evidence involved sex offenses. (Evid. Code, § 1108, subd. (d)(1).)
Evidence Code section 1108 “expand[s] the admissibility of
disposition or propensity evidence in sex offense cases” to “assure
that the trier of fact would be made aware of the defendant’s
other sex offenses in evaluating the victim’s and the defendant’s
credibility.” (People v. Falsetta (1999) 21 Cal.4th 903, 911.) The
evidence “may be helpful to the jury on a commonsense basis, for
resolution of any issue in the case, including the probability or
improbability that the defendant has been falsely accused.”
15
(People v. Robertson, supra, 208 Cal.App.4th at p. 990; People v.
Ranlet (2016) 1 Cal.App.5th 363, 374.)
Appellant argues that the uncharged sex crime evidence is
inadmissible because it is (1) dissimilar to the charged crimes;
(2) inflammatory; (3) stale; (4) distracted the jury from the
charged crimes; and (5) consumed undue time. (People v. Nguyen
(2010) 184 Cal.App.4th 1096, 1117.) We disagree.
The crimes were similar in nature. In the charged and
uncharged incidents, appellant molested female relatives of
similar age at home, often with other family members nearby.
(People v. Cordova (2015) 62 Cal.4th 104, 134 [propensity may be
inferred from sex offenses against young children at home];
People v. Hernandez (2011) 200 Cal.App.4th 953, 966–967
[charged and uncharged offenses against young female
relatives].) Unlike molesting a random child at a park who might
scream or fight off a stranger, appellant abused vulnerable,
trusting relatives, who were frightened and unsure how to react.
(People v. Frazier (2001) 89 Cal.App.4th 30, 41 [“pattern of
molesting his young female relatives” for decades].) By instilling
fear, appellant could rely on their silence.
Appellant’s commission of more egregious acts with his
sisters is not disqualifying. (People v. Loy, supra, 52 Cal.4th at
p. 63 [it is enough that the charged and uncharged acts be sex
offenses].) “ ‘Many sex offenders are not ‘specialists’ and commit
a variety of offenses which differ in specific character.’ ” (People
v. Soto (1998) 64 Cal.App.4th 966, 984.) The evidence was not
prejudicial because of its strength. The prejudice that the courts
guard against comes from evidence that evokes bias against the
defendant while having little effect on the issues. (People v. Karis
16
(1988) 46 Cal.3d 612, 638 [“ ‘ “prejudicial” is not synonymous with
“damaging” ’ ”].)
The evidence supported an inference of appellant’s
propensity to molest close relatives. Because he testified that the
current victims are untruthful, propensity evidence is
particularly relevant to his and the victims’ credibility. It
remains relevant despite the 30-year gap between appellant’s
abuse of his sisters and his abuse of his granddaughters. (People
v. McCurdy (2014) 59 Cal.4th 1063, 1099 [no specific time limit
exists that makes an uncharged offense so remote as to be
excludable].) The passage of time affects the weight of the prior
acts, not their admissibility. (People v. Hernandez, supra, 200
Cal.App.4th at p. 968 [40 years from the first offense against a
daughter to the last offense against a granddaughter].)
Moreover, the similarities in his behavior “ ‘balanced out the
remoteness.’ ” (People v. Branch (2001) 91 Cal.App.4th 274, 285.)
Appellant’s sexual interest in young girls persisted despite the
passage of time.
The evidence would not confuse the jury. The jury was
instructed that an uncharged offense (1) “is not sufficient by
itself” to prove appellant is guilty of the charged offenses, which
the People must prove beyond a reasonable doubt, and (2) can be
considered “for the limited purpose of determining the
defendant’s credibility.” We must presume the jury followed the
limiting instruction. (People v. Ervine (2009) 47 Cal.4th 745,
776.) The instruction removed the risk appellant would be
punished for his past behavior with his sisters. (People v.
Anderson (2012) 208 Cal.App.4th 851, 895–896.) The sisters’
testimony did not consume undue time. (People v. Frazier, supra,
89 Cal.App.4th at p. 42 [uncharged offense evidence from three
17
witnesses did not dwarf the trial].) The court did not abuse its
discretion by admitting uncharged crime evidence.
3. Admission of Domestic Violence Testimony
Appellant contends that the prosecutor improperly elicited
testimony about appellant’s domestic violence against his wife.
Defense counsel never objected as the prosecutor asked witnesses
about domestic abuse. Appellant asserts that his attorney’s
failure to object amounted to ineffective assistance of counsel.
Appellant mischaracterizes the issue as one of prosecutorial
misconduct. Misconduct occurs when a prosecutor intentionally
elicits testimony that violates a court order; however, “ ‘merely
eliciting evidence is not misconduct. Defendant’s real argument
is that the evidence was inadmissible.’ ” (People v. Chatman
(2006) 38 Cal.4th 344, 379–380.) Here, there is no court order
barring questions about domestic abuse.
To preserve his claim of inadmissibility, appellant had to
object to questions about domestic violence. His failure to object
forfeited review. (People v. Scott (1997) 15 Cal.4th 1188, 1218.)
The trial court had no sua sponte duty to remedy misconduct or
exclude testimony that appellant belatedly deems objectionable
on appeal. (People v. Medina (1995) 11 Cal.4th 694, 727.)
Defense counsel’s failure to object was not prejudicially
deficient performance falling below an objective standard of
reasonableness. (Strickland v. Washington (1984) 466 U.S. 668,
687–692.) Counsel exercised “reasonable professional judgment”
(id. at p. 690) and realized that the prosecutor’s questions were a
permissible attack on the credibility of defense witness Ofelia
Pimentel, who implied that the victims lied because appellant
was never alone with them. She was then asked if appellant ever
beat or abused her or left her on a freeway; she denied it.
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Although instances of misconduct are inadmissible to prove
the conduct of a person on a specified occasion, they can be used
to attack the credibility of a witness. (Evid. Code, § 1101, subd.
(c).) “Evidentiary limitations on the use of evidence of specific
instances of prior misconduct . . . do not apply to evidence offered
to support or attack the credibility of a witness.” (People v.
Kennedy (2005) 36 Cal.4th 595, 620.) “Unless precluded by
statute, any evidence is admissible to attack the credibility of a
witness if it has a tendency in reason to disprove the truthfulness
of the witness’s testimony.” (People v. Hawthorne (2009) 46
Cal.4th 67, 99.)
After Mrs. Pimentel denied being abused, appellant’s sister
A.P. testified on rebuttal that Mrs. Pimentel blamed appellant for
hitting her and bruising her eye; she showed where he choked her
neck, and he left her at night on a freeway. A.P. saw Mrs.
Pimentel’s injuries and offered to help her escape appellant and
return to Mexico. Appellant’s daughter E.M. testified that
appellant choked and was “always verbally abusive” to her
mother and even drove the wrong way on a freeway while asking
Mrs. Pimentel if she wanted to die.
The prosecutor’s questions about appellant’s abuse had a
tendency in reason to undermine Mrs. Pimentel’s testimony that
they have a “very good relationship” and appellant is “very
loving.” The jury could deduce that she is so fearful of appellant
that she lied for him by saying she never left him alone with their
granddaughters.
If a defense witness claims a good domestic relationship
with a defendant, the prosecutor may test that assertion by
asking about the defendant’s abuse, to attack the witness’s
credibility. (People v. Guthreau (1980) 102 Cal.App.3d 436, 445;
19
People v. Case (2018) 5 Cal.5th 1, 31 [eliciting evidence to show a
witness “had reason to fear defendant”].) It also casts doubt on
appellant’s testimony: If the jury believed the testimony that
appellant harmed his wife, after he denied ever doing so, it
undermined the credibility of his claim that he was never alone
with or molested the victims.
4. Questions About the Victims “Lying”
Appellant contends that the prosecutor engaged in
misconduct by asking him on cross-examination whether the
victims lied. The prosecutor asked appellant if “everything that
[L.C.] said was a lie?” and “[S.C.] testified that you touched her
more than once. And you’re saying that what she testified to is
not true?” and “[S.M.] testified live as to what and how you
touched her on three different occasions; correct? And . . . you’re
saying that what she testified to is not true?” and “testimony
from [A.C.] is not true?” Appellant replied that “these things did
not happen” and their testimony is “not true.”
Defense counsel did not object to the questions addressed to
appellant about the victims’ honesty. “ ‘To preserve for appeal a
claim of prosecutorial misconduct, the defense must make a
timely objection at trial and request an admonition.’ ” (People v.
Gionis (1995) 9 Cal.4th 1196, 1215.) “We need not address
[appellant’s contentions] on the merits because defense counsel’s
failure to object to the prosecutor’s [questions] waives the issue
on appeal.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1125.)
In any event, “the prosecutor’s ‘was [s]he lying’ question did
not constitute misconduct” because the questioning did not
intentionally elicit inadmissible testimony, and did not berate
appellant or attempt to inflame the passions of the jury. (People
v. Hawthorne, supra, 46 Cal.4th at p. 98.) “Were they lying”
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questions are evaluated “in context” to determine if they are
argumentative, or designed to elicit irrelevant or speculative
testimony. (People v. Chatman, supra, 38 Cal.4th at p. 384.)
Such questions are permissible “if the witness to whom they are
addressed has personal knowledge that allows him to provide
competent testimony that may legitimately assist the trier of fact
in resolving credibility questions.” (Ibid.; People v. Riggs (2008)
44 Cal.4th 248, 318 [defendant had personal knowledge whether
he abused witnesses and he could be asked if they were lying].)
Here, appellant opened the door on direct examination by
repeatedly testifying that his sisters’ testimony was “not true”
and his granddaughters described molestations that “did not
happen.” The prosecutor pursued more testimony on something
appellant already suggested on direct examination, i.e., that the
victims were untruthful. The follow-up questions to appellant’s
direct testimony, seen in this context, were permissible because
appellant claimed personal knowledge about his accusers’
veracity. Indeed, appellant gave identical answers on direct and
on cross-examination about the supposed fallaciousness of the
witnesses’ testimony.
Defense counsel’s failure to object did not constitute
ineffective assistance. Counsel’s representation did not fall below
an objective standard of reasonableness and there is no
reasonable probability that a determination more favorable to
appellant would have resulted. (People v. Rodrigues, supra,8 Cal.4th at p. 1126.) No objectionable conduct occurred when
the prosecutor asked appellant to amplify his assertion that his
accusers were untruthful.
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5. Allowing Rebuttal Witnesses in the Courtroom
Appellant argues that the prosecutor violated a court order
excluding witnesses by allowing A.P. (appellant’s sister) and E.M.
(appellant’s daughter) to stay in the courtroom and listen to
appellant’s wife Ofelia testify. A.P. and E.M. later gave
testimony refuting Ofelia on rebuttal. Appellant forfeited the
claim by failing to object to the witnesses’ presence or moving to
exclude or strike their testimony. (People v. Young (1985) 175
Cal.App.3d 537, 543.)
Appellant claims ineffective assistance of counsel, but we
see no prejudice to him. It is true rebuttal witnesses heard Mrs.
Pimentel testify that appellant did not engage in domestic abuse.
However, even if counsel had objected and the witnesses had left
the courtroom, they still would have been asked on rebuttal about
their personal knowledge of Mrs. Pimentel’s physical and verbal
abuse by appellant. And E.M. would have refuted defense
testimony by saying she left her children alone with appellant
twice a week while she took Mrs. Pimentel for errands. Thus,
counsel’s failure to object was immaterial. There is no reasonable
probability a determination more favorable to appellant would
have resulted. (People v. Rodrigues, supra, 8 Cal.4th at p. 1126.)
6. The Multiple Victim Circumstance
Appellant challenges his sentence because the jury was not
given a verdict form to find multiple victims. The One Strike law
applies to a defendant who is convicted of committing lewd or
lascivious acts “against more than one victim.” (§ 667.61, subds.
(c)(4), (e)(4).) If the trier of fact finds section 288 violations
against multiple children under age 14, the prison term is 25
years to life as to “each victim attacked on each separate
22
occasion.” (§ 667.61, subds. (j)(2), (o); People v. Wutzke (2002) 28
Cal.4th 923, 931.)
Appellant was charged with violating section 667.61 as to
all counts, placing him on notice that the court would use the One
Strike law at sentencing. This case is thus distinguishable from
People v. Mancebo (2002) 27 Cal.4th 735, 745, in which “the
information neither alleged multiple victim circumstances nor
referenced . . . section 667.61 in connection with” felony sexual
offenses against different victims.
At sentencing, the court acknowledged that appellant was
charged with violating section 667.61 but the jury was not given
the verdict form for it. The court deemed this “harmless error
given the circumstances. When the jury has, in fact, found the
defendant guilty of committing the specified crimes against
multiple victims, it is considered harmless error to not give an
instruction specifically and have the jury make a finding on the
multiple victim allegation.” We agree.
The jury makes the multiple victim finding after it returns
convictions on offenses involving more than one victim. (People v.
Carbajal (2013) 56 Cal.4th 521, 535.) The court has a duty to
instruct on the elements of the One Strike circumstance. (People
v. Jones (1997) 58 Cal.App.4th 693, 709.) It did not do so here.
The instructional error “was harmless beyond a reasonable
doubt because the jury necessarily resolved the factual question
posed by the omitted instructions adversely to defendant.”
(People v. Jones, supra, 58 Cal.App.4th at p. 709.) “Here, it is
clear the jury intended to find each multiple victim circumstance
true. It made such findings to the best of its ability, with the
verdict forms it had been given” by making separate findings as
to each victim. (Id. at p. 711.) By analogy, the court errs by
23
removing from the jury’s consideration a multiple murder special
circumstance; however, the error is “undoubtedly harmless”
because the jury convicted the defendant of three counts of first
degree murder. (People v. Marshall (1996) 13 Cal.4th 799, 852.)
Though the court did not provide a verdict form on section
667.61, the jury found that appellant violated section 288 nine
times, committing lewd and lascivious conduct on four children
under the age of 14. It necessarily follows that the facts needed
to apply the sentencing rules in section 667.61 were established
by proof beyond a reasonable doubt. (Apprendi v. New Jersey
(2000) 530 U.S. 466, 490.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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