IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
December 23, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ELMER MOISES RAMIREZ AYALA, DEFENDANT AND APPELLANT.
Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed. (Super. Ct. No. 07CF1188)
The opinion of the court was delivered by: Fybel, J.
P.v . Ayala
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Elmer Moises Ramirez Ayala was found guilty by a jury of having committed the crimes of continuous sexual abuse and incest against his daughter, Jane Doe (Jane). Defendant contends the trial court erred by admitting a forensic scientist's testimony stating that semen found in a sample taken from Jane Doe's vagina contained defendant's DNA, because other forensic scientists involved in the testing of that sample did not testify at trial in violation of defendant's right to confrontation under the United States Constitution.
We affirm. Even if the admission of the forensic scientist's testimony was admitted in error, any such error was harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant's guilt presented at trial.
At 6:20 a.m. on April 4, 2007, Marianne Guerra, a deputy probation officer, conducted an unannounced visit at defendant's six-bedroom house in Santa Ana. Guerra knocked on defendant's bedroom window. Defendant peeked out that window. He then went to the front door and opened it for Guerra.
Guerra asked defendant to show her to his bedroom so they could speak privately. Defendant "stopped" her and said that his daughter was sleeping in his bedroom. Guerra told him "that was okay" and they proceeded to his bedroom.
Guerra saw defendant's then 13-year-old daughter, Jane, alone and lying in defendant's bed; she was holding the blankets up to her neck. Guerra noticed that the bed was pushed "all the way towards the window," which meant that defendant had been on the bed at the time he peeked through the window and saw Guerra. Guerra asked her partner, deputy probation officer Christine Torres, to take defendant to the living room while Guerra spoke with Jane and conducted "a welfare check on her, make sure she was okay."
Guerra asked Jane if she had slept in defendant's bedroom; Jane said "no." Guerra asked Jane why she was in that room and Jane said she "came in to take a shower." Jane could not explain why she had no clothes or a towel with her and started to "tear up." Guerra was concerned and asked Jane to show her what she was wearing. Jane lifted up the blankets and Guerra saw that Jane was wearing lace panties and a camisole top; she was not wearing any type of shorts or pants. She covered herself up again. Jane appeared frightened and was quiet.
Guerra asked Jane if she was okay and Jane said she was. Guerra asked if anything had happened that Jane wanted to tell her about and Jane said "no." Guerra told Jane that she was there to help her, and Jane started to tear up but did not say anything. Jane met with Torres to whom she made some "disclosures."*fn1 Guerra and Torres thereafter escorted Jane to the Child Abuse Services Team (CAST) facility in Orange.
At the CAST interview, Jane seemed shy and reluctant to say anything at all, including her name. Torres entered the room where the CAST interview was taking place because it appeared she had gained Jane's trust. Jane became more forthcoming. She stated defendant had touched her on the breasts, buttocks, and vagina. The touching began over her clothing and escalated to "skin to skin" touching. She described defendant digitally penetrating her vagina. She described three separate incidents of molestation which occurred over a time period exceeding three months. Jane said defendant had placed his penis inside her vagina, described defendant ejaculating on her, and said the molestation occurred in defendant's bed at their residence. She stated she thought defendant's conduct was her fault.
After the interview, Jane was given a sexual assault examination by nurse practitioner Jennifer Yates. Yates did not find any acute or healed injuries that were suspicious at that time and could not confirm or rule out whether Jane had been sexually abused. During the examination, Yates obtained samples from Jane, consisting of four vaginal swabs, two anal swabs, two cervical swabs, and four other swabs from other parts of Jane's body; Yates packaged the samples.
Forensic scientist Steven Guluzian screened the evidence collected from Jane and conducted an initial examination of the swabs. The vaginal, anal, and cervical swabs all tested positive for the presence of sperm. Guluzian prepared the evidence for further testing. Other forensic scientists were involved in the process of extracting DNA from the samples and determining which samples would be "typed." Forensic scientist Danielle Wieland was the typing case manager for the evidence collected from Jane and a sample of DNA that had been taken from defendant. After the typing process was completed, it was Wieland's responsibility to analyze all of the data and generate a report.
Wieland testified that she developed a DNA profile for Jane, for defendant, and for the source of the semen found on the swabs taken from Jane. Wieland concluded the vaginal swab contained DNA consistent with defendant's DNA profile. She stated, "[t]he frequency of choosing an individual at random who also could be a possible contributor to that semen standard is rarer than one in one trillion unrelated individuals," which "is the highest value that the crime lab reports out."
At trial, then 16-year-old Jane testified defendant started touching her when she was eight years old. He touched Jane over her clothing at first and when she was "[l]ike ten probably," he started touching her under her clothes. Defendant would come into Jane's bedroom, get into bed with her, and "just start hugging [her] and stuff." He would touch her breasts and vagina. He would also get on top of her and put his penis inside her vagina. When asked how many times defendant put his penis inside her vagina, Jane testified, "[a] lot of times." When asked, "[h]ow many?" she responded, "[a] lot" and more than three or four times.
Until May 2006, Jane lived with defendant, her mother, her two sisters, and her two uncles.*fn2 Jane testified that in May 2006, her mother moved out of the house because "she didn't want to be with [defendant] no more." Jane's mother took Jane's youngest sister with her, leaving Jane and her other sister to continue to live at the house with defendant. Jane further testified that since her mother had moved out of the house and until the probation officers arrived on April 4, 2007, defendant came into her room almost every day and would touch her and "some of those times," he would put his penis inside her vagina. She described defendant's penis as being hard and stated she felt liquid come out of it. She said he would stay in her bed for about three or four hours and then leave her bedroom.
Jane testified that on one occasion, one of her uncles touched her. She stated, "[w]ell, he knew about me and my dad and, you know, he called me in the night one time and he was like, oh, he told me he knew." She testified he put his penis inside her vagina. She did not tell anyone about that incident.*fn3
Jane testified she never slept in defendant's bedroom and the only time she was with defendant in his bed at nighttime was "the time that the probation officers came." She stated she was there only in the morning that day because she was getting ready for school and went into his bedroom to wake him up. She said she was wearing shorts and a shirt with spaghetti straps that morning. She further testified that the last time defendant had touched her or done anything of a sexual nature to her was probably the week before the probation officers made their unannounced visit. On that occasion, defendant "did the same thing," in that he touched her vagina and breasts and put his penis inside her vagina.
Jane never told anyone about defendant's conduct until April 4, 2007. She stated she did not know why she had not told the probation officer and the CAST interviewer everything she described during her trial testimony and stated that at the time, "[she] didn't know what was going on." She said she was embarrassed and a little bit scared, and thought it was her fault because she did not tell anyone and "let him do it."
Defendant was charged in an information with one count of committing continuous sexual abuse of a child under 14 years old (Pen. Code, § 288.5, subd. (a)) (count 1), three counts of committing a lewd act upon a child under 14 years of age (id., § 288, subd. (a)) (counts 2 through 4), and one count of committing incest (id., § 285) (count 5). As to counts 1 through 4, the information further alleged defendant engaged in substantial sexual conduct with a child under 14 years of age within the meaning of section 1203.066, subdivision (a)(8).
The jury found defendant guilty on counts 1 and 5, and not guilty on counts 2 through 4.*fn4 The jury found true the allegation defendant engaged in substantial sexual conduct with a child under 14 years of age as to count 1. The trial court granted the prosecution's motion to dismiss count 5. The court imposed the upper term sentence of 16 years. Defendant appealed.
Defendant's sole contention on appeal is that his conviction for continuous sexual abuse must be reversed because the admission of Wieland's testimony violated his right to confrontation under the United States Constitution. Citing Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [129 S.Ct. 2527] (Melendez-Diaz), defendant argues: "D[a]nielle W[ie]land's DNA testimony violated [defendant]'s right of confrontation and should have been excluded because of the prosecutor's failure to call the forensic scientists actually involved in the extraction of the DNA--Aimee Yap, Corey Magan, Richard Gustillo, as well as the forensic scientists who did the amplification and quantification of the DNA, prevented the defense from exploring the possibility that the forensic scientists 'lacked proper training or had poor judgment or from testing their honesty, proficiency and methodology.' [Citation.] The prosecution's failure to call these forensic scientists prevented the defense from exploring the possibility that they lacked proper training or had poor judgment or from testing their honesty, proficiency and methodology."
For the reasons we will explain, we do not need to determine whether the admission of Wieland's testimony constituted error under Melendez-Diaz because any such error was harmless beyond a reasonable doubt.
THE CONFRONTATION CLAUSE, PEOPLE V. GEIER (2007) 41 CAL.4TH 555, AND MELENDEZ-DIAZ, SUPRA, 557 U.S. __ [129 S.CT. 2527].
In all criminal prosecutions, the accused has a right, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, "to be confronted with the witnesses against him . . . ." (U.S. Const., 6th Amend.; Crawford v. Washington (2004) 541 U.S. 36, 42 (Crawford).) In Crawford, the United States Supreme Court held the confrontation clause prohibits admission of out-of-court statements that are testimonial in nature unless the declarant is unavailable and the accused has had a prior opportunity for cross-examination. (Crawford, supra, at pp. 68-69.) The Supreme Court held a wife's out-of-court statement to a law enforcement officer made during a custodial interrogation about a knife fight, in which both the husband and wife were suspects, could not be used against the husband in his trial for attempted murder. (Id. at pp. 38-39, 68-69.)
The Crawford court stated: "Where non-testimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law--as does [Ohio v.] Roberts [(1980) 448 U.S. 56], and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." (Crawford, supra, 541 U.S. at p. 68.) Although the court left "for another day" a comprehensive definition of "'testimonial'" (ibid.), the court did provide these illustrations of statements that could be considered testimonial: (1) "'ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,'" and (2) "'statements . . . made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial'" (id. at pp. 51-52).
In People v. Geier (2007) 41 Cal.4th 555, 605-607 (Geier), a case which bears some similarity to the instant case, the California Supreme Court concluded that the admission of a DNA expert's opinion which relied on a DNA testing report and notes, prepared by an analyst who did not testify at trial and thus was not subjected to cross-examination, did not violate the confrontation clause. The Supreme Court stated a statement is "testimonial if (1) it is made to a law enforcement officer or by or to a law enforcement agent and (2) describes a past fact related to criminal activity for (3) possible use at a later trial. Conversely, a statement that does not meet all three criteria is not testimonial." (Id. at p. 605.)
The Supreme Court concluded the analyst's report and notes did not meet the second criterion because they "constitute a contemporaneous recordation of observable events rather than the documentation of past events." (Geier, supra, 41 Cal.4th at p. 605.) The court explained that the analyst's report and notes "were generated as part of a standardized scientific protocol that she conducted pursuant to her employment." (Id. at p. 607.) As the analyst's notes "were made 'during a routine, non-adversarial process meant to ensure accurate analysis,'" the analyst did not "'bear witness'" against the defendant. (Ibid.) The court further stated, "[r]ecords of laboratory protocols followed and the resulting raw data acquired are not accusatory. 'Instead, they are neutral, having the power to exonerate as well as convict.'" (Ibid.) The court further noted, "the accusatory opinions in this case--that defendant's DNA matched that taken from the victim's vagina and that such a result was very unlikely unless defendant was the donor--were reached and conveyed not through the non-testifying technician's laboratory notes and report, but by the testifying [expert] witness." (Ibid.)
After Geier was decided on July 2, 2007, the United States Supreme Court held in Melendez-Diaz, supra, 557 U.S. at page __ [129 S.Ct. at pages 2531-2532] that sworn "'certificates of analysis,'" which showed the results of the forensic analysis performed on substances that had been seized by police officers, were testimonial within the meaning of the confrontation clause. As observed in People v. Vargas (2009) 178 Cal.App.4th 647, 659: "The reasoning of the majority in Melendez-Diaz is inconsistent with the primary rationale relied upon by the California Supreme Court in Geier to uphold the introduction of the DNA report in that case--that because a scientific observation 'constitute[s] a contemporaneous recordation of observable events rather than the documentation of past events,' it is analogous to 'the declarant reporting an emergency . . . and therefore is not testimonial."
California appellate courts have since disagreed about whether Geier remains good law after the Melendez-Diaz decision. This issue is currently pending before the California Supreme Court.*fn5
ANY ERROR IN ADMITTING WIELAND'S TESTIMONY WAS HARMLESS.
We do not need to determine whether the admission of Wieland's testimony violated defendant's right to confrontation under Melendez-Diaz, supra, 557 U.S. __ [129S.Ct. 2527]because even if it had, any such error was harmless. Confrontation clause violations are subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24. (People v. Lewis (2008) 43 Cal.4th 415, 461.) This standard provides "an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt. [Citations.]" (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681.) "These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case. [Citations.]" (Id. at p. 684.)
Defendant was convicted of committing continuous sexual abuse of a child under 14 years of age.*fn6 The jury was instructed that to establish such a violation, the prosecution had to prove (1) defendant lived in the same home with Jane; (2) defendant engaged in three or more acts of substantial sexual conduct, or lewd or lascivious conduct with Jane; (3) three or more months passed between the first and last acts; and (4) Jane was under the age of 14 years at the time of the acts.
Overwhelmingly strong and substantively uncontroverted evidence presented at trial supported the jury's finding defendant had committed continuous sexual abuse of Jane. As to the first and fourth elements of the offense, undisputed evidence showed defendant lived in the same house with Jane, who was under the age of 14 years when defendant engaged in the sexual conduct. Wieland's testimony was irrelevant to proving these elements.
As for the elements of the offense requiring proof defendant engaged in three or more acts of substantial sexual conduct, or lewd or lascivious conduct with Jane, the jury was instructed that "[s]ubstantial sexual conduct means oral copulation or masturbation of either the child or the perpetrator, or penetration of the child's or perpetrator's vagina or rectum by the other person's penis." Because the jury specifically found that defendant had engaged in three or more acts of substantial sexual conduct with Jane, we consider the evidence in light of that finding.
At trial, Jane testified that in addition to innumerable occasions of sexual touching which started when she was eight years old, defendant also would get on top of her and put his penis inside her vagina "[a] lot of times," which meant more than three or four times. After her mother moved out of the house in May 2006, defendant started coming into Jane's bedroom "almost every day" and would touch her and "some of those times" would also place his penis inside her vagina. Jane described defendant's penis as hard and that he ejaculated on her. The last time defendant touched her was the week before Guerra and Torres conducted their unannounced visit on April 4, 2007, at which time defendant touched Jane's vagina and breasts and put his penis inside her vagina. Guluzian testified that samples taken from Jane's vagina that day showed the presence of sperm.
Jane's trial testimony was substantially consistent with the statements she made during the April 4, 2007 CAST interview. During that interview, Jane stated defendant initially touched her on top of her clothes and then started to touch her "skin to skin." Jane stated he touched her breasts, buttocks, and vagina; digitally penetrated her vagina; and put his penis inside her vagina. She described defendant ejaculating on her. She also described three separate incidents of defendant's molestation of her, which she stated occurred over a time period exceeding three months.
Jane's statements were further corroborated by what Guerra observed when she made her unannounced visit at defendant's house. She observed defendant had to have been on top of the bed in order to peek out the window at Guerra because the bed was pushed up against the wall where that window was located. After entering the residence and being told not to enter his bedroom because his daughter was sleeping, Guerra found Jane alone in defendant's bed, wearing lace panties and a camisole top which she covered up from Guerra's view. Jane was tearful and unable to provide a reasonable explanation as to why she was in defendant's bedroom; she appeared frightened to Guerra.
In light of this uncontroverted evidence showing, at a minimum, defendant engaged in three separate acts of sexual intercourse with Jane over a period of time that exceeded three months, Wieland's testimony stating defendant's DNA matched the DNA sample of the sperm found inside Jane's body corroborated already significant evidence of defendant's sexual conduct with Jane; it did not constitute evidence that alone proved any element of the offense or was required to prove an element. In order to prove continuous sexual abuse, the prosecution had to show defendant committed three or more acts of substantial sexual conduct, or lewd or lascivious conduct with Jane in a time period that exceeded three months. Wieland's testimony supported a finding defendant had intercourse with Jane once and thus was of limited use to the prosecution in proving this claim in that respect as well. It is clear beyond a reasonable doubt to us that a rational jury would have found defendant guilty, even absent Wieland's testimony.
Defendant contends the admission of Wieland's testimony was prejudicial because otherwise the jury might not have believed Jane in light of what defendant considers factual inconsistencies in her statements. For example, defendant asserts Jane testified that the sexual conduct occurred in her bedroom, which is inconsistent with her previous statements during the CAST interview that it occurred in defendant's bedroom. Defendant also states Jane's trial testimony that she was wearing shorts and a shirt on April 4, 2007 was inconsistent with Guerra's testimony that Jane was wearing a camisole top and lace panties that morning.
These asserted inconsistencies are relatively trivial and certainly are not relevant to directly proving any of the elements of continuous sexual abuse. In light of the entire record, such inconsistencies were insufficient to undermine Jane's credibility with the jury. They certainly do not show that the admission of Wieland's DNA testimony was prejudicial.
Defendant also contends Jane "was initially reluctant to admit that [defendant] had sexually abused her when questioned by the probation officers" and "[f]rom this reluctance, . . . the jury may have questioned Jane Doe's veracity." A reasonable juror would not have questioned the veracity of a 13-year-old child because she was initially reluctant to freely talk about her father's conduct after five years of sexual abuse which she had never revealed to anyone. Although Jane told Guerra she was okay and answered "no" to vague questions asking whether there was anything she wanted to talk about, or whether anything had happened, the record does not show that on April 4, 2007, Jane ever directly denied defendant's sexual abuse of her. The record does not show that since April 4, 2007, she ever denied the sexual abuse she described during the CAST interview.
Defendant argues, "Nurse Yates testified that she could neither confirm nor negate whether [defendant] had sexually abused Jane Doe." But Guluzian testified that his initial analysis of the samples taken from 13-year-old Jane's vagina, cervix, and anus showed the presence of sperm.
Finally, the prosecutor's brief reference to Wieland's testimony, during rebuttal argument, did not render the admission prejudicial for the same reasons its inclusion did not constitute prejudicial error in the first place.
We therefore conclude that, even assuming the admission of Wieland's testimony constituted error, it "'[i]s . . . clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.'" (Geier, supra, 41 Cal.4th at p. 608.)
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J. O'LEARY, J.