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People v. Cardona

September 4, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JASON JACOB CARDONA, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Fresno County. Bruce M. Smith, Judge. (Super. Ct. No. F04907112-7).

The opinion of the court was delivered by: Ardaiz, P.J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

OPINION

Appellant Jason Jacob Cardona stands convicted, following a jury trial, of forcible rape (Pen. Code, § 261, subd. (a)(2); counts 1 & 5), forcible lewd act on a child under age 14 (id., § 288, subd. (b)(1); counts 2 & 6), forcible oral copulation (id., § 288a, subd. (c)(2); counts 3 & 7), and sexual penetration by force (id., § 289, subd. (a)(1); count 4). Counts 1 through 4 involved crimes against S., while counts 5 through 7 involved crimes against A., and the jury further found, as to all but count 4, that the offenses were committed against multiple victims. (Id., § 667.61, subd. (e)(5).) Appellant was between 16 and 18 years of age during much of the period of time in which the crimes were alleged to have occurred.*fn2 Concluding that appellant was not a fit and proper subject to be dealt with under juvenile court law, the trial court sentenced appellant to a total unstayed term of 30 years to life in prison, and this appeal ensured. For the reasons that follow, we will affirm.

FACTS*fn3

S. was 19 years old at the time of trial. From the time she was five until she was 12, appellant, her uncle, constantly molested her. Sometimes, he lived with her and her family. The molestations occurred even when he did not live with them.

On one occasion, S., A. (S.‟s younger cousin), appellant, and some others went to a ditch. S. and A. were left alone with appellant. Appellant took off his pants and looked at A. She looked at S., then got on her knees and orally copulated appellant. He did not need to tell her what to do. After, appellant told S. to give him a kiss. She complied; it was like a French kiss. Appellant stopped when someone came up the road.

On another occasion, S. was at her grandparents‟ house when appellant told her to go to the bedroom. She complied. She was on the bed and appellant put in a movie, and the next thing S. knew, she was on the floor. Appellant took off his pants, put his penis in her vagina, and ejaculated on her chest. Although her grandparents were elsewhere in the house, S. did not scream for help. She saw no point in it; appellant had done it for so long, S. felt it would be over sooner if she kept quiet.

Once, when S. was seven or eight, she was asleep at her house. She woke to find appellant on top of her. It was dark and she could not see who it was, but she knew it was him because of the way he smelled. He put her pillow over her face so she would not make any noise, then put his penis in her vagina. It hurt. He again withdrew and ejaculated all over her chest. On the occasions when he had intercourse with her, appellant told S. to tell him that she loved him and to call him ""daddy.‟" S. felt awful, like the worst person in the world.

Sometimes, appellant made S. rub his penis with her hands or orally copulate him. Other times, he would touch her breasts (sometimes with his hands; sometimes with his mouth) or put his fingers in her vagina. S. never told anyone about any of these occasions, because she did not want to make anybody -- especially her grandmother or A. -- feel bad. Also, appellant said he would show pictures of S. to everybody and make her seem like she was a bad person. He also said he could make it hurt worse. S. was afraid that if she told, he would hurt somebody.

The abuse finally stopped when S. was 12. She was in the living room, watching television, when appellant came in and asked if she wanted to have some fun. When she told him no, he came toward her. She went into her parents‟ room and locked the door. He knocked, but she did not open the door. Finally, he gave up and walked away.

S. finally reported the abuse to the police in August of 2004, after appellant had moved out of state. She overdosed and ended up in the hospital. Her friend Robby wanted to know why she hurt herself all the time, and she confided in him.*fn4 He then reported the abuse. S. did not tell her family at the time.*fn5 She did not want them to know, they would feel bad because they could not prevent it. D.G., S.‟s mother, did not find out about the abuse until the police asked her to bring S. to the police station because they had received a report she had been molested and raped.

S. spoke to Officer Fuentes and Sergeant Drum of the Kingsburg Police Department on August 30, 2004. At first, she said she did not know why she was there. When Drum asked about her uncle, she replied that she had many uncles. Drum asked again if she knew why she was there, and this time, she nodded affirmatively and said she had been molested. She said it was one of her uncles. She would not name him, but said he now lived in Texas. She said she believed the abuse began before she started school, and she described acts of rape, oral copulation, and fondling and kissing. She said she just decided to stop fighting and let him do everything he wanted to, because he told her it was something she was supposed to do and that it was just a part of life. She knew this was not true, but when she would try to run away, he would grab her and force her down and molest her. She said the molestations stopped when she was 12.

S. told Fuentes that no one was ever present while she was being molested. She did not want to bring A. into it, and so did not tell about the incident at the ditch. She did not tell anyone about the incident with the pillow until the day she testified at trial. She told Fuentes that one of the reasons she did not report the abuse was because she felt bad, as appellant had a girlfriend and a baby and she did not want to get them in trouble. She also said that her uncle had threatened to kill her if she told anybody, but that she was not sure how serious he was. She related that he also said he would take pictures of her doing things and would show everyone. S. told Fuentes and Drum that it made her feel horrible, and that she had attempted suicide because she did not want to live anymore.

S. subsequently told her mother, D.G., that A. had been involved. D.G. in turn told Fuentes that she had seen some e-mail messages between S. and A., saying they had been molested. Fuentes had another officer dispatched to Orange Cove to contact A.‟s mother.

S. testified that since appellant‟s arrest, S.‟s grandmother no longer came around much and A. did not talk to S. as much as she used to. S. never talked to A. about this case or the details of the molestations, although she did tell A. she was sorry for getting A. into it. S. felt bad because she wanted to protect A. and did not want her to be sad. S.‟s grandparents, who were appellant‟s parents, asked her not to testify at trial. They also told her to write a letter saying that she had dropped all the charges. They said she should do it, since A. had. She wrote the letter, as they would not stop pressuring her.

A. was 16 years old at the time of trial. She was very close to her grandmother, who, along with appellant, had been around a lot when A. was approximately seven through 11 years old. Appellant sometimes took A. and her sisters to the river to play, but she did not remember any ditches around the fields near her grandmother‟s house, and appellant never took her and S. anywhere. At no time did appellant ever molest her.

A. spoke to Fresno County Sheriff‟s Deputy Davenport on November 19, 2004. When he first arrived at the house, he had contact with A.‟s mother. When he explained that he had been dispatched there to find out if A. had been the victim of some type of sexual offense, the mother said yes, that she had found out about it six months earlier, and that her mother had taken appellant to live in Texas. When Davenport asked A. if she had been the victim of any type of sex offense, she said yes, that her uncle, appellant, had assaulted her on numerous occasions between the ages of seven and 11, approximately 1997 to 2001. A. said it had happened so many times that she was unable to give a number. She said her mother would drop her off at her grandmother‟s house for babysitting, and that, when she was asleep at night, appellant would come into the room. He would grab her, twist her arm, and tell her not to say anything or he would hurt her or her grandmother. A. described appellant forcing her to orally copulate him, and putting his penis in her vagina. She also said she would masturbate him with her hands. A. said that, despite the threats, she would fight back on occasion, but he was stronger than she was and he would overpower her. A. also described one incident as occurring in the bathroom at night. She said appellant took her into the bathroom and sat down. He made her sit on him, and his penis entered her vagina. A. told Davenport that during some of the attacks, her cousin was in the same room and would be assaulted in the same fashion. On occasion, appellant put one of them into the closet until he finished with the other, then switched. Appellant told the girls that nobody was going to believe them if they told, and that he would hurt their grandmother. A. gave Davenport S.‟s name. During the interview, A. told Davenport that she had come to feel that her grandmother was actually protecting her uncle, and not her.

A. testified at trial that she did not remember the details of what she told Davenport. He told her what S. had said and then asked if it had happened to A. She just agreed.*fn6 She lied to Davenport. She had no motivation to lie; she just thought S. wanted her to because S. needed some way to get out of what she had gotten into. S. would send text messages to A., asking if she remembered certain things. Those things never happened, but A. did not want to make S. feel as if anything was her fault. A. felt like S. was manipulating her to lie to the police. However, S. never told her to lie, nor did she tell A. anything about what happened to S. At one point, S. told A. that she had tried to commit suicide because her boyfriend had broken up with her.

After appellant was arrested, A. wrote him a letter, saying that she had recently dropped the charges against him mainly because she lied, and apologizing. She wrote in the letter that she hoped "this" would never happen again and would feel grateful if he felt the same way, and that she would appreciate it if they did not see each other. She did not write that because she was afraid of appellant, but because she thought he would hate her for getting him into trouble for something he did not do. She gave the letter to her grandparents, but her grandmother did not ask her to write it.

Psychologist Randall Robinson testified as an expert in Child Sexual Abuse Accommodation Syndrome (CSAAS), which, she explained, was a term coined by UCLA Psychiatrist Dr. Roland Summit in an article he wrote in 1983. The term was meant to be used descriptively, and Summit himself objected to attorneys and clinicians using it diagnostically, i.e., as an indicator that abuse occurred.

Robinson described CSAAS as meaning that "when children are sexually abused, they don‟t resist for the most part and they don‟t report for the most part." Moreover, if there is reporting, it is often delayed and sometimes retracted. This is what clinicians have always experienced in their work with children who have been sexually abused.

Davenport testified that he sometimes used more clinical terms for the acts A. described. At the time of the interview, however, he had not read Fuentes‟s report of his contact with S. or spoken to him about his investigation.

According to Robinson, it is a myth that if a child is abused, he or she will try to get away and tell someone. If the abuse is not a one-time event and continues until the child is 12, he or she may still not resist for various reasons. One is fear of reprisal from the perpetrator, especially if he or she is a family member. Because family members are supposed to protect children, the child has nowhere to go. There is anticipation that if the child says something, he or she will not be believed, the perpetrator might have to go to jail, a parent might have an emotional breakdown, or the child may get sent to a foster home. Children feel responsible for what happened. As they grow older, they may feel shame. Some may develop psychological defense mechanisms, while others may engage in self-abusive behavior because they feel they were responsible for the abuse.

If a child tells a trusted figure, such as a mother, about the abuse and the mother does nothing, it is "abuse upon abuse." For the child to take the risk to tell and then not be believed is an emotional assault. If a teenager reports abuse by a close family member, someone gets arrested, and another family member such as a grandmother gets upset, in Robinson‟s experience the victim may change the story and say he or she made some of it up or dreamt it. This is a common symptom of CSAAS.

DISCUSSION

I.*fn7 REOPENING JURY SELECTION

A. Background

After the parties had exercised several peremptory challenges apiece, each passed the challenge consecutively. The trial court then asked the prospective jurors if they could think of any reason they could not try the case fairly and impartially as to both sides. The prosecutor apologized and asked whether she could reopen. Following an unreported sidebar discussion, the court stated that the People had revoked their pass, and allowed the prosecutor to exercise another peremptory challenge. Both sides then passed, and the jurors were sworn.

After the jury was excused for the noon recess, the trial court observed that neither side had exercised all of its peremptory challenges. Defense counsel then noted his objection to the manner in which the People had exercised their last challenge. Counsel took the position that, since both parties had passed sequentially, the People should not have been permitted to exercise the additional challenge. The prosecutor explained that after both sides had passed, she had realized there was one more juror she needed to challenge, and so had asked to reopen. The court stood by its ruling granting the request.

Appellant now contends the trial court violated his rights under the federal Constitution by erroneously permitting the prosecutor to reopen jury selection in order to exercise another peremptory challenge. Appellant says the court had no discretion to permit the prosecutor to reopen, or, if it did, it abused that discretion because the prosecution failed to establish good cause for doing so. We find no error.

B. Analysis

"A challenge to an individual juror may only be made before the jury is sworn." (Code Civ. Proc., § 226, subd. (a).) The "jury," under this provision, does not include the alternates. (People v. Cottle (2006) 39 Cal.4th 246, 257.) "Peremptory challenges shall be taken or passed by the sides alternately.. When each side passes consecutively, the jury shall then be sworn, unless the court, for good cause, shall otherwise order." (Code Civ. Proc., § 231, subd. (d), italics added.) Accordingly, although the law no longer permits a trial court to reopen jury selection proceedings once a jury has been sworn (People v. Cottle, supra, 39 Cal.4th at p. 258), the emphasized portion of subdivision (d) of Code of Civil Procedure section 231 affords the court the discretion to reopen proceedings when, as in appellant‟s case, the jury has not yet been sworn (see People v. DeFrance (2008) 167 Cal.App.4th 486, 504). "[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.]" (People v. Giminez (1975) 14 Cal.3d 68, 72.)

The question is whether the trial court erred by implicitly finding the fact the prosecutor made a mistake constituted good cause to reopen. Relying on People v. Niles (1991) 233 Cal.App.3d 315, 321 (Niles), appellant argues that a party‟s reconsideration and change of mind do not warrant reopening jury selection in order to exercise peremptory challenges; hence, the prosecutor‟s neglect here did not constitute good cause.

Appellant reads too much into Niles. That case construed former Penal Code sections 1068 and 1088, the latter of which contained language very similar to the above-quoted portion of Code of Civil Procedure section 231, subdivision (d). (Niles, supra, 233 Cal.App.3d at p. 319-320 & fn. 3.) The Court of Appeal determined that, once both sides have consecutively passed on peremptory challenges, any remaining such challenges may be exercised only at the discretion of the trial court, upon a showing of good cause, even though the jury has not yet been sworn. (Id. at p. 320.) To show good cause, the party "must make a sufficient showing to persuade the court to allow the belated exercise of [the] challenge." (Id. at p. 320, fn. 4.) The court concluded that the trial court did not clearly abuse its discretion by denying a defense request to reopen where "defendant showed nothing more than that he had reconsidered his decision of the day before [to accept the jury] and had changed his mind." (Id. at p. 321.) Niles manifestly did not hold that permitting the defense to reopen would have constituted an abuse of discretion.

""[G]ood cause,‟ liberally construed, requires taking account of """real circumstances, substantial reasons, objective conditions, palpable forces that operate to produce correlative results, adequate excuses that will bear the test of reason, just grounds for action, and always the element of good faith..‟" [Citation.]‟ [Citation.]" (People v. DeFrance, supra, 167 Cal.App.4th at p. 504.) Here, the trial court acted reasonably in finding good cause. "[A] "mistake‟ is, at the very least, a "reason,‟ that is, a coherent explanation for the peremptory challenge." (People v. Williams (1997) 16 Cal.4th 153, 188.) Although a trial court is not necessarily required to conclude that a party‟s mistake or neglect constitutes good cause to reopen, where, as here, there is no suggestion counsel is acting other than in good faith, permitting the exercise of further peremptory challenges neither encourages gamesmanship (see People v. Cottle, supra, 39 Cal.4th at p. 257) nor exceeds the bounds of reason, all of the circumstances being considered (People v. Giminez, supra, 14 Cal.3d at p. 72).

Justice Werdegar‟s concurring opinion in People v. Hernandez (2003) 30 Cal.4th 1 does not alter our conclusion. Although Justice Werdegar noted that reopening voir dire and permitting a party to exercise additional peremptory challenges violates Code of Civil Procedure section 226, subdivision (a) and may also compromise a defendant‟s constitutionally protected right to a chosen jury (Hernandez, supra, at p. 12 [conc. opn. of Werdegar, J.]), she did so in the context of a case involving the dismissal of a juror after the jury was sworn. The issue before the court in Hernandez was whether the improper discharge of one juror during trial, and replacement of that juror ...


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