IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT El Dorado
March 2, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
LOUIS PAUL SOTA, DEFENDANT AND APPELLANT.
Super. Ct. No. P08CRF0144
The opinion of the court was delivered by: Robie , J.
P. v. Sota CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Louis Paul Sota guilty of molesting his two daughters and niece. The court sentenced him to prison for 60 years to life plus 8 years. On appeal, he raises 11 contentions encompassing alleged constitutional violations, evidentiary errors, instructional errors, prosecutorial misconduct, and sentencing error. Finding no merit to these contentions, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant's Molestation Of His Daughters
Defendant is the father of two of the victims: his older daughter, who was born in 1997 and was 11 at the time of trial, and his younger daughter, who was born in 2001 and was eight at the time of trial. The daughters were born during defendant's live-in relationship with their mother, which began in 1992. Defendant's relationship with the mother was marked by domestic violence. The allegations of the daughters' molestation came to light in 2005 when the daughters told a Child Protective Services' (CPS) worker defendant had been molesting them.
According to the older daughter, defendant inappropriately touched her for the first time when she was in kindergarten. It was evening in a tent that defendant had set up for the children in the house while their mother was at work. When the older daughter and defendant were alone, he took her nightgown off and put his "private spot" inside her "private spot." Defendant said he would kill her mother if she told anybody. Defendant had sex with the older daughter between four and nine more times, including in his recreational vehicle when they were parked outside a restaurant and in a campground.
The older daughter also saw defendant molesting the younger daughter on at least four occasions. On one occasion when the family was still living together and the children were watching television, defendant took the younger daughter into a bedroom and started "touching her" with his hands "[i]n her private part" and having her suck on his "[p]rivate part." Defendant had left the door open, so when the older daughter walked past the room, she could see what was going on inside. On two other occasions, the older daughter saw defendant again have the younger daughter "suck his private part." One time was when all three were in the house, and she saw defendant make the younger daughter suck his private part in their mother's bedroom. To encourage her, defendant told the younger daughter to "suck your ba-ba." A second time was in defendant's recreational vehicle in the bedroom compartment. The older daughter was on the couch or the driver's compartment "[c]rying . . . [f]or [her] little sister." Defendant would also make the younger daughter masturbate him. He would tell her, "pull your ba-ba so the milk will come out."
Defendant's Molestation Of His Niece
Defendant's niece was born in 1981 and was 27 at the time of trial. She is the daughter of defendant's older brother. When she was in third grade, defendant would sometimes come stay with her family for a couple of weeks at a time. Twice, during these visits, defendant came into her bedroom at night and forced her to have sex with him. He said that if she told anybody, she "wouldn't have a mommy and daddy anymore."
The niece first revealed the molestation to a counselor at age 16. She ultimately told her parents, and her father then told other members of their extended family what defendant had done. As a result, there was "a lot of conflict and problems . . . within [her] family." At one point, she tried to recant her allegations because she "wanted it to go away," but she "knew all along it was [defendant]."
Defendant's Molestation of The Niece's Aunt
(Prior Act Evidence)
The mother of defendant's niece had a younger sister who would come to stay with the niece's family during the summer. The niece's aunt was born in 1971 and was 37 at the time of trial. In 1987, she was celebrating her 16th birthday with family. Defendant was spending the weekend there as well. One night when the niece's aunt was asleep in the living room, she awakened to find defendant "laying next to [her], touching [her], fondling [her], and then he had taken [her] hand and tried to put [her] hand on his penis and do things." He told her, "'I'm so hard. I want you. I'm so horny.'" He asked her to touch his penis, saying, "'I'm going to teach you how.'" She was "very scared," and had "never been touched like that before." She pulled away and went to sleep in the niece's upstairs bedroom.
Counsel Was Not Ineffective For Failing To Object To Closing The Courtroom During The Testimony Of The CPS Workers During the testimony of two CPS workers, the court closed the courtroom to the public to prevent disclosing contents of confidential juvenile records on which part of their testimony was based. On appeal, defendant contends the closure violated his right to a public trial under the federal and state Constitutions. He further contends his counsel's purported objection, which was based on excluding the press, was sufficient to preserve the issue and, if it was not, his counsel was ineffective. As we explain, defense counsel did not preserve the issue for appeal and his counsel was not ineffective.
Factual And Procedural Background
The prosecutor and defense counsel both filed requests for disclosure of the minors' juvenile dependency case files related to the molestations here. Appointed counsel for the minors requested the court close the courtroom for the CPS workers' testimony to prevent confidential information about the minors' juvenile dependency files from being made public. The court asked, "Any counsel have any objection?" Defense counsel responded as follows: "The only issue, there's something called the shield law. I've dealt with that every once in a while when I subpoena Mountain Democrat reporters. Of course, the First Amendment proponents show up. There's something called the shield law somewhere." The deputy county counsel responded the court had the authority to issue appropriate protective orders. The court remarked, "So basically, if the courtroom is not closed, this information, which is protected . . . could be printed on the front page of the Mountain Democrat the next day." The deputy counsel responded, "Correct." The court ruled it would "issue that order, that when [the CPS workers] testify, other than necessary personnel, we'll close the courtroom."
The deputy county counsel pointed the court to the rule of court she believed allowed the court to close the courtroom. (See Cal. Rules of Court, rule 5.552(e)(8) ["The court may issue protective orders to accompany authorized disclosure, discovery, or access" to confidential juvenile case files].) The court stated, "It makes good sense."
Defense counsel stated, "Let me have just one second, Excuse me." The transcript then reflects "Discussion off the record." Thereafter, defense counsel stated, "Thank you, Your Honor."
When the day came for the CPS workers to testify, the court ordered the courtroom closed. The prosecutor "put on the record" she "checked in the hallway" and "there d[id]n't appear to be anybody from the media present or wanting to access presence to the courtroom." The prosecutor then asked if she could put the CPS workers on the stand now (thereby interrupting the testimony of a detective) because they had "traveled far." The court "assume[d] that's not a problem" and asked defense counsel. Defense counsel stated, "No, absolutely not." The prosecutor then called the CPS workers to testify in a closed courtroom.
Counsel Waived Any Objection To Closing The Courtroom
And Counsel Was Not Ineffective For So Doing
"The most basic rights of criminal defendants are . . . subject to waiver." (Peretz v. United States (1991) 501 U.S. 923, 936 [115 L.Ed.2d 808, 822].) This includes the right to a public trial. (Ibid.; Levine v. United States (1960) 362 U.S. 610, 619-620 [4 L.Ed.2d 989, 996-997].) Our Supreme Court has held that where the trial court closed the courtroom and defense counsel "did not object that these proceedings violated his right to a public trial," the "[f]ailure to object in these circumstances constitutes a waiver of the claim on appeal." (People v. Catlin (2001) 26 Cal.4th 81, 161.)
Catlin applies here. When the court solicited objections to closing the courtroom, defense counsel did not state that defendant's right to a public trial was being violated. He mentioned only "something called the shield law," which he stated arose "every once in a while" when he subpoenaed local newspaper reporters. The shield law does not implicate a defendant's right to a public trial. That law is a constitutional provision allowing a reporter to refuse to disclose the source of any information procured while employed as a reporter without being adjudged in contempt of court. (Cal. Const., art. I, § 2, subd. (b).) Defense counsel's reference to the shield law was not an objection to closing the courtroom.
Defense counsel, however, was not deficient for failing to object. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693 [first prong of an ineffective assistance of counsel analysis is proof that counsel's performance was deficient].) When the court and the deputy county counsel were discussing closing the courtroom, the court noted that if it did not do so, information in the minors' dependency files "which is protected . . . could be printed on the front page of the Mountain Democrat the next day." The deputy counsel responded, "Correct." This information included reports by the minors that defendant had molested them. Defense counsel reasonably could have decided it was detrimental to have these allegations printed in the newspaper. In fact, a fair inference can be made that defense counsel discussed the issue of the court closure with defendant based on the off-the-record conversation counsel had just after the court noted that it made "good sense" to close the courtroom. The reasonable tactical decision not to object in this circumstance defeats defendant's ineffective assistance argument. (See People v. Frye (1998) 18 Cal.4th 894, 979-980 [counsel's performance is not deficient if his action could be deemed a reasonable tactical decision].)
Admission Of The Prior Act Evidence
To Show Propensity To Commit Sex Offenses
Did Not Violate Due Process
Defendant contends the court violated his right to due process when it admitted evidence of his prior sex acts on the niece's aunt to show his propensity to commit sex offenses. He acknowledges this claim has been rejected by the California courts, but he raises it to preserve the issue for possible further state and federal court review.
Defendant's claim requires little comment. As he notes, it was rejected by the California Supreme Court in People v. Falsetta (1999) 21 Cal.4th 903, 907, 916-922, and we are bound by that decision (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455).
The Corroboration Requirement To Toll The Statute
Of Limitations For The Sex Offense Regarding
Defendant's Niece Did Not Require Evidence Independently Corroborating The Facts Of The Niece's Molestation
Defendant contends his conviction for molesting his niece must be reversed because there was no clear and convincing evidence independently corroborating the facts of her abuse. He claims this corroboration is required under the Penal Code section that allows for reviving time-barred sex charges, which reads as follows: "[A] criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging . . . she, while under the age of 18 years, was the victim of [an enumerated sex crime if] . . . [t]here is independent evidence that corroborates the victim's allegation. . . ." (Pen. Code, § 803, subd. (f)(1)(C).)*fn1
The corroboration here came in the form of the molestations of the older daughter, the younger daughter, and the niece's aunt. Based on this evidence, the jury was instructed as follows: "Evidence of a similar offense against a different victim may be considered by you in determining if there was independent evidence to corroborate the victim's allegation." Defendant claims this corroboration was insufficient under the plain language of the statute, the legislative history of the statute, and public policy. These issues effectively have been addressed in a series of appellate court cases that we discuss below. Finding them dispositive, we reject defendant's contention.
In People v. Mabini (2001) 92 Cal.App.4th 654, the defendant contended that corroboration under section 803 could not be based on his commission of another offense against a different victim. (Mabini, at p. 658.) The appellate court found otherwise, based on the plain reading of the statute: "Nothing in [former] Penal Code section 803, subdivision (g), precludes the People from proving the corroboration requirement solely with evidence of a similar offense committed against an uncharged victim." (Mabini, at p. 659.) The court went on to explain that "[e]vidence of similar offenses against an uncharged victim has a tendency in reason to prove a disputed fact that is of consequence to the determination of the [former] section 803, subdivision (g), issue." (Mabini, at p. 659.) "Consequently," the court held, "such evidence, if credited by the trier of fact, may standing alone constitute independent evidence that clearly and convincingly corroborates the victim's allegation." (Ibid.)
In People v. Yovanov (1999) 69 Cal.App.4th 392, the appellate court explained that the legislative history of former section 803, subdivision (g) does "not set forth any minimal criteria in terms of the quality or quantity of evidence which is required to meet the clear and convincing standard." (Yovanov, at p. 403.) Rather, the legislative history provides one example of why tolling the statute of limitations is necessary: frequently, child sexual abuse victims who are now adults reveal they were sexually abused and those perpetrators often confess. (Yovanov, at p. 403.) Without tolling, these cases could not be pursued. (Ibid.) The Yovanov court made clear that this one example in the legislative history did not mean that these were the only cases which could be revived under the tolling provision. (Ibid.) Rather, the court concluded that evidence of uncharged sexual misconduct by a different victim that was similar to the sex offense being charged could be used to corroborate a victim's allegation of sexual abuse. (Ibid.)
Finally, as to defendant's public policy argument, he analogizes the alleged need for corroboration of the facts of the victim's alleged molestation to the requirement that corroboration in the realm of accomplice testimony requires evidence connecting the defendant to the commission of the charged offense. (§ 1111.) Defendant's analogy is faulty. Corroboration concerning accomplice testimony is based on the traditional common law view that "an accomplice is inherently untrustworthy because he or she 'usually testif[ies] in the hope of favor or the expectation of immunity.' [Citation.] In addition, an accomplice may try to shift blame to the defendant in an effort to minimize his or her own culpability." (People v. Tobias (2001) 25 Cal.4th 327, 331.) Those considerations do not apply to witnesses who testify about other sexual misconduct.
Based on the above reasoning, we reject defendant's argument that the corroboration in section 803, subdivision (f) must be of direct proof of the alleged offense rather than other sexual misconduct.
The Court Did Not Err In Instructing The Jury
Regarding Sufficiency Of A Single Witness's Testimony
Regarding The Corroboration Requirement
For Tolling The Statute Of Limitations
Defendant contends the court erred by instructing the jury pursuant to CALCRIM No. 301,*fn2 which permits a single witness's testimony to prove any fact, and pursuant to CALCRIM No. 1190,*fn3 which permits a single witness's testimony to prove a sexual assault crime. He claims the court erred in failing to advise the jury these instructions did not apply to the niece's molestation charge, which required corroboration to toll the statute of limitations. As we explain, defendant's contention lacks merit because there was no reasonable likelihood the jury misunderstood the instructions.
CALCRIM No. 1190, which allows for a single witness's testimony to prove a sexual assault crime, by its own terms, is limited in its application to determining a defendant's guilt (i.e. "conviction") of the charged sex crime. It would not apply to the special instruction given here that set forth the allegations the jury must find true to toll the statute of limitations.*fn4
This leaves CALCRIM No. 301. Since the court gave the jury both CALCRIM No. 301 (testimony of only one witness can prove any fact) and the special instruction (niece's testimony must be corroborated to find the special allegation regarding the statute of limitation true), defendant contends the two instructions permitted a true finding on the statute of limitations issue on the basis of the niece's uncorroborated testimony alone.
Our Supreme Court rejected an argument with similar reasoning in People v. Noguera (1992) 4 Cal.4th 599. There, the trial court gave the jury both CALJIC No. 2.27 (testimony of a single witness is sufficient for the proof of any fact) and CALJIC No. 3.11 (accomplice testimony must be corroborated in order to convict). (Noguera, at p. 630.) The defendant contended, "the two instructions [we]re contradictory and in combination confused the jury, permitting [him] to be convicted on the basis of [the accomplice's] uncorroborated testimony alone." (Ibid.) The Supreme Court found no merit in this contention: "[W]e conclude that nothing in the combined instructions suggested to the jurors that corroboration of [the accomplice's] testimony was not required: 'A reasonable juror would have recognized CALJIC No. 2.27 as setting forth the general rule and the charge on accomplice testimony as an exception to it. [Citations.] Nothing before us indicates that the jurors may have acted otherwise.'" (Id. at p. 631.)
The same is true here. A reasonable jury would recognize CALCRIM No. 301 sets forth the general rule on single witness testimony and the special instruction on the statute of limitations requiring corroboration sets forth the exception to it. The jury was specifically instructed to "consider [all of these instructions] together" and that "[s]ome of these instructions may not apply." In light of the entire charge of the court, the instructions were not misleading. (People v. Burgener (1986) 41 Cal.3d 505, 538 ["[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction"].) On this record, we reject defendant's instructional argument.
The Court Did Not Abuse Its Discretion In Refusing
To Sever The Niece's Charge From The Daughters' Charges
Defendant filed a motion to sever the niece's charge from the daughters' charges. The court denied the motion, reasoning as follows: Evidence of the niece's molestation would be admissible in the daughters' molestation cases for propensity under Evidence Code 1108, the niece's case was not substantially weaker because her initial accusatory statements were "rather unequivocal and direct," and the niece appeared to recant only when improperly influenced by her family.
Defendant contends the court erred in so ruling because cross-admissibility of propensity evidence under Evidence Code section 1108 violates due process, the older daughter's case was inflammatory, and the niece appeared to be a recanting witness, making that count weak. As we explain, there was no abuse of discretion. (See People v. Ochoa (1998) 19 Cal.4th 353, 408 [standard of review].)
As to defendant's argument regarding propensity under Evidence Code section 1108, we have already rejected it in part II of the Discussion.
As to defendant's argument regarding the allegedly inflammatory charges regarding the older daughter, the case law is well settled. "Whenever a defendant is tried for multiple crimes of the same class, the jury will be presented with evidence that the defendant committed multiple offenses. This necessary concomitant of joinder is not sufficient to render the joinder unduly prejudicial." (People v. Hill (1995) 34 Cal.App.4th 727, 735.) "The danger to be avoided," however, "is that strong evidence of a lesser but inflammatory crime might be used to bolster a weak case on another crime." (Id. at pp. 735-736.) That danger was not present here. While defendant claims the older daughter's charge was inflammatory as compared to the niece's charge because the older daughter was "penetrat[ed]," "which caused pain," and defendant "threat[ened] to kill if she began crying as a result of the molestations," evidence submitted by the prosecutor opposing severance showed the niece was penetrated, experienced pain, and was threatened. (See People v. Arias (1996) 13 Cal.4th 92, 127 [we review the pretrial severance ruling on the record before the court at the time of the ruling].) Specifically, in a transcript of the interview between the niece and the police detective investigating her allegation, the niece stated that when she was eight years old, defendant penetrated her with his penis "enough where it hurt" and threatened to kill her parents if she told anybody.
Finally, as to defendant's claim the niece's charge was significantly weaker because she appeared to recant at the time the motion was filed, this claim also lacks merit. Had the niece's recanting posture continued at trial, the People would have impeached her with her prior statements to the detective, which included both details of the molest and reasons why she might possibly recant, such as the fact her family was "very, very close knit," and her grandfather had disowned her when he found out she had accused defendant of molestation. Thus, even if the niece had recanted, the impeachment evidence would have tended to undercut that recantation.
On this record, the trial court did not abuse its discretion in denying defendant's severance motion.
CALCRIM No. 330 Regarding A Child's Testimony
Does Not Violate Due Process
Defendant contends the trial court erred by instructing pursuant to CALCRIM No. 330 ("Testimony of Child 10 Years of Age or Younger").*fn5 He argues the instruction violated his constitutional right to due process because "there was no reciprocity. The jury was never told that [it] w[as] not to distrust the testimony of the accused simply because he might have a motive to slant his testimony toward innocence." Like many other courts before us, we find nothing constitutionally deficient in the instruction. (See, e.g., People v. McCoy (2005) 133 Cal.App.4th 974, 979-980; People v. Jones (1992) 10 Cal.App.4th 1566, 1572-1574; People v. Gilbert (1992) 5 Cal.App.4th 1372, 1393; People v. Harlan (1990) 222 Cal.App.3d 439, 455-457.)
CALCRIM No. 330 derives from section 1127f, which mandates giving the instruction whenever a child 10 years of age or younger testifies and a party requests it. Section 1127f adopts "the modern view regarding the credibility of child witnesses" that "a child's testimony cannot be deemed insubstantial merely because of his or her youth." (People v. Jones (1990) 51 Cal.3d 294, 315.)
In People v. Gilbert, supra, 5 Cal.App.4th at pages 1392 to 1394, the defendant argued that the predecessor to CALCRIM No. 330, CALJIC No. 2.20.1, and the underlying statute, section 1127f, violated his constitutional rights. He argued the court gave no comparable instruction for a defendant "'such as, "do not discount or distrust the testimony of the defendant solely because he is on trial for his liberty,"'" thus discriminating between child witnesses and defendants. (Gilbert, at p. 1393.) He also argued the instruction discriminated between defendants accused by a child and those accused by an adult in that an alleged child victim 10 years of age or younger receives "'preferential treatment.'" (Gilbert, at p. 1394.)
The appellate court rejected these arguments, noting the only distinction involved was that between witnesses 10 years of age or younger and witnesses older than 10. (People v. Gilbert, supra, 5 Cal.App.4th at p. 1394.) The court then observed that section 1127f does not create this distinction but simply ameliorates its perceived negative impact upon the integrity of the fact-finding process. According to the court, section 1127f is rational and does not single out criminal defendants or child victims. Rather, it applies to any criminal case in which a witness is 10 years of age or younger, regardless of whether he or she is the alleged victim or called by the prosecution or the defense. The court found defendant's constitutional claim "specious," noting that a defendant's self-interest bears directly on his or her credibility, and to take away this consideration from the jury would be patently arbitrary. (Gilbert, at p. 1394.)
We agree with Gilbert and reject defendant's constitutional challenge to CALCRIM No. 330.
CALCRIM No. 1110 Regarding Lewd Acts
On A Child Correctly States The Law
Defendant contends CALCRIM No. 1110, which sets forth the elements of lewd acts on a child, is constitutionally deficient because it removes an essential element of the offense from the jury's consideration. Specifically, he challenges the portion of the instruction that states: "The touching need not be done in a lewd or sexual manner." Precedent from our Supreme Court defeats defendant's argument.
As the Supreme Court explained in People v. Martinez (1995) 11 Cal.4th 434, because the purpose of section 288 (criminalizing lewd acts on a child)*fn6 is to protect children from sexual misconduct, the statute "prohibits all forms of sexually motivated contact with an underage child. Indeed, the 'gist' of the offense has always been the defendant's intent to sexually exploit a child, not the nature of the offending act." (Martinez, at p. 444.) Therefore, "'[i]f [the] intent of the act, although it may have the outward appearance of innocence, is to arouse . . . the lust, the passion or the sexual desire of the perpetrator [or the child,] it stands condemned by the statute . . . .' [Citation.]" (Ibid.) For this reason, there is no restriction on "the form, manner, or nature of the offending act." (Ibid.) Indeed, it "need not be 'sexual in character.'" (Ibid.) Rather, "any touching of an underage child is 'lewd or lascivious' within the meaning of section 288 where it is committed for the purpose of sexual arousal." (Martinez, at pp. 444-445.)
Stated otherwise, it is not the touching that must be "lewd" but the intent of the perpetrator in committing the act. CALCRIM No. 1110 therefore correctly states the law.
There Was Nothing Discoverable In The Sealed Juvenile Court Dependency Records That Were Withheld From Defendant
Defendant requests we conduct an independent, in camera review of sealed juvenile court dependency records produced to the trial court in response to his discovery request that were not disclosed to him to determine whether the trial court erred in finding they contained nothing that was discoverable. We do so and find nothing relevant.
The record reveals the trial court reviewed the juvenile court dependency records, "picked out the relevant records," turned those over to defendant, and "kept the redacted portions" in a sealed envelope "for later legal issues that may be raised."
We have that sealed envelope before us. Having reviewed its contents, we find nothing relevant to this case. As such, the trial court did not err in finding the redacted portions of juvenile court dependency records contained nothing that was discoverable.
The Prosecutor Did Not Commit Misconduct
Defendant contends the prosecutor "engaged in repeated misconduct" by asking four improper questions to defendant: two having to do with the veracity of a witness, another having to do with a battered woman's shelter, and another having to do with a court mediator. We reject defendant's contention because the prosecutor's behavior did not rise to the level of misconduct.
The applicable federal and state standards regarding prosecutorial misconduct are well settled. "'A prosecutor's rude and intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." [Citations.] But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves "'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'" [Citations.]'" (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.) Here, the prosecutor's conduct did not rise to either level.
The first question defendant challenges came when the prosecutor was cross-examining defendant about his relationship with his niece. The prosecutor asked, "So 20-some years later she's going to come in here and testify that you accosted her because she had a crush on you?" Defense counsel objected the question was "[a]rgumentative" and "[s]peculative," and the court sustained the objection. The prosecutor then asked the second question to which defendant raises a challenge: "Do you believe she came in here and testified that you accosted her because she had a crush on you back when she was 16?" Defense counsel objected that "[i]t still calls for speculation" and the court "[s]ustained" the objection "again."
The third question came in response to defendant's testimony that he had not physically abused his daughters' mother. The prosecutor asked why the mother was "at the Dewitt Center back in 2001?" Defendant responded, "So that she could have a place to take the kids and be fed and [¶] . . . [¶] . . . a roof over their head. They put her up in a room." The prosecutor then asked, "And isn't that for battered women, a safe house for women?" Defendant responded, "That's exactly right." Defendant persisted that he "didn't do it." The prosecutor then asked, "But this safe house took her in anyway, correct?" Defense counsel interjected, "Objection. 352. Argumentative." The court sustained the objection.
The fourth question had to do with visitation with his children when he and their mother were separated. The prosecutor asked: "And isn't it true that the mediator didn't want you to have unsupervised visits with the children?" Defendant answered, "No, that's not true." Defense counsel objected and asked to "approach." During the bench conference, defense counsel stated that the content of the mediator's report was confidential. The prosecutor stated she was "going to ask . . . if [the minors' mother wa]s the one [who] agreed to give him . . . unsupervised visits." The court stated, "I think you can do that without referring to the report."
At most, what defendant has shown is the prosecutor asked a handful of questions during defendant's cross-examination to which the court sustained objections. Prosecutorial misconduct, however, is more than simply asking questions to which the court sustains objections. (People v. Hinton (2006) 37 Cal.4th 839, 864.) Rather, "the critical inquiry on appeal is not how many times the prosecutor erred but whether the prosecutor's errors rendered the trial fundamentally unfair or constituted deceptive or reprehensible methods to attempt to persuade the jury." (Ibid.) The closest defendant comes to making such a case is the following: The prosecutor's questioning of defendant regarding the niece, which he contends were attempts to have one witness comment on the veracity of another witness, were "particularly reprehensible because the prosecutor repeated the question (and thus the insinuation) even after the trial court had sustained [defendant's] objection." The prosecutor's "tactic" of asking defendant about the mother and daughters' stay in the battered woman's shelter allowed the impression defendant "was lying when he stated that he had not battered [the mother] . . . and therefore [he] was probably lying entirely in his testimony," but nobody from the shelter testified the shelter concluded the mother was battered. And it was "extremely unlikely that such testimony would have been admissible, since it called upon one witness to comment on the veracity of another witness." The prosecutor appealed to "passion or prejudice during the trial" when she elicited inadmissible testimony regarding confidential family mediation proceedings. Although the objection regarding the mediator's opinion was sustained, the "damage had already been done" because "[t]he prosecutor was able to insinuate . . . the court mediator felt [defendant] was so dangerous . . . [defendant] could [not] be trusted to have unsupervised visits with his own children." None of these questions, alone or in concert, rose to the level of misconduct.
The questions about the niece were not the inappropriate "was she lying" questions defendant claims they were. Rather, since defendant had personal knowledge of the relationship between him and his niece, he was in a position to "provide insight on whether witnesses whose testimony differs from his own are intentionally lying or are merely mistaken." (People v. Chatman (2006) 38 Cal.4th 344, 382.)
The question about the battered woman's shelter also did not rise to a level of misconduct. Based on previous testimony, it was clear the mother and daughters had been taken to a women's shelter. For example, the mother had previously testified she had lived in the "safe house" for three months. And defendant himself testified on direct examination that the mother "needed the help of the DeWitt Center, the women's protection center."
Finally, as to the question about the mediator's opinion regarding the daughters' visitation, while defendant is correct that mediation proceedings are confidential (Fam. Code, §3177), the question did not rise to a level of misconduct. The prosecutor had already elicited damaging testimony that a CPS worker interviewed the daughters, learned that defendant had molested them, and told the mother she needed to get an emergency change of custody order and a restraining order to demonstrate she was willing to protect her children and "this is a way of doing it." The question about the mediator's opinion added little to the mix. Simply put, it did not rise to a level of misconduct.
Defendant Did Not Carry His Burden To Show Error
In the Court's Victim Restitution Award
Defendant contends the court abused its discretion in awarding $150,000 to each of the daughters as restitution. According to defendant, the court accepted speculation to support the restitution amount and failed to give the basis for its decision.
According to the probation report filed on August 17, 2009, no restitution was being sought by either daughter or the niece. However, the report noted "[b]oth [daughters] have been receiving counseling services for approximately sixteen (16) months, which has been covered by insurance." According to the mother, "even though the girls have benefited from counseling, they are having different issues as a result of the abuse." "'It has been hard because the girls went in totally opposite directions. It has been a lot of work.'" One of the daughters "has been suffering from nightmares and has been afraid the defendant will escape and will hurt her." The other "has suffered from 'boundary' problems. As a result her interaction with other children has to be closely monitored."
On August 18, 2009, the supervising deputy probation officer wrote the court a letter stating the mother was now "requesting restitution in the amount of $150,000.00 for each minor . . . for 'future counseling, and psychological harm.'"
On August 28, 2009, the sentencing hearing was held. At the hearing, a member of the district attorney's victim/witness office read letters from, among others, the older daughter and her brother. The older daughter explained that she wanted defendant to go to jail so he could not "'do this to any other kid and not . . . have their childhood taken away from them like [hers] was and . . . can never get . . . back.'" Her brother explained that he "hated" defendant who "has hurt [his] sisters in a way that it makes [him] want to hurt [defendant] back . . . . He has done things that no dad should ever do, so he is not worthy of the title of dad. . . . He's not even worthy of a title father . . . ." Thereafter, the court "ma[d]e a finding that restitution is appropriate . . . and that victim restitution is ongoing." Defense counsel referred to the "letter dated August 18th," stating, "[w]e oppose that . . . ." The court stated it would determine the amount later.
The restitution hearing was held on January 11, 2010. The prosecutor argued that "[t]his court has heard the evidence in this case, and the $150,000 per each minor doesn't even quite seem nearly enough," asking "[h]ow do you quantify the amount of pain and suffering [¶] . . . [¶] . . . and trauma and future counseling?" The prosecutor further argued she "th[ought] they're reasonable amounts" and "submit[ted] on what the request is."
Defense counsel stated that defendant told him prior to leaving to "handle it. He was under the impression [the court] would probably grant the request. He wanted to know why, because he'll never have the money to pay it because [the court] sentenced him to five consecutive life sentences, plus one concurrent." Defense counsel then stated he "received no back-up to support this claim. Of course, there may not be any back-up that you can support it, other than to hear the young ladies testify to what their lives have been like since this. [¶] I will point out that the younger [daughter] . . . seemed to have very little, if any, memory during the course of her testimony. In fact, I believe that was one of the ra[t]ionales that [the court] had supplied for ordering the one concurrent life sentence. [¶] Other than that, I have nothing else to add."
The court ruled as follows: "A situation like this is difficult only because you can't quantify something like this. We can't have victims just tell us what they want and give it to them. [¶] But they've each requested $150,000. I don't see that as unreasonable. I'm going to order the payment of $300,000 restitution, $150,000 to each victim."
"The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record." (§ 1202.4, subd. (f).) Restitution orders under this statute must include reimbursement for "[m]edical expenses" and "[m]ental health counseling expenses." (§ 1202.4, subd. (f)(3)(B) & (C).) The statute broadens the restitution available for "restitution orders relating to felony convictions for lewd or lascivious acts (§ 288), for which non-economic losses may be included in a direct restitution order." (People v. Giordano (2007) 42 Cal.4th 644, 656.) We review a trial court's restitution order for abuse of discretion. (Id. at p. 663.)
In selecting the restitution amount, sentencing judges have "'"virtually unlimited discretion as to the kind of information they can consider and the source from whence it comes."'" (People v. Foster (1993) 14 Cal.App.4th 939, 947.) For example, "[w]hen the probation report includes information on the amount of the victim's loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount." (Ibid.) Where the defendant does not provide any factual basis for disregarding the amount of restitution requested, and there is nothing in the record to suggest the amount of restitution is unreasonable, a trial court does not abuse its discretion in following the recommendation of the probation officer or the prosecutor. (People v. Hove (1999) 76 Cal.App.4th 1266, 1275; People v. Pinedo (1998) 60 Cal.App.4th 1403, 1406-1407.)
This is the situation here. The trial evidence, the probation report, the letter from the mother, and the letters from the older daughter and brother read at sentencing documented that both daughters were suffering mental health issues from defendant's molestation. Based on the evidence presented, the mother requested $150,000 per child in restitution for both economic and non-economic damages. Defendant provided no factual basis in the trial court for disregarding that amount of restitution. He simply questioned whether there was adequate "back-up" to the support the claim, but then acknowledged that such "back-up" may have come from their testimony. It was his burden to provide a factual basis to disregard the claimed amount of restitution and he failed to carry it. On this record, the court did not abuse its discretion in ordering the restitution.
Defendant Has Forfeited His Challenge To The Court's Order
He Pay The Cost Of Preparing The Probation Report
Defendant contends we must strike the trial court's order he pay $460 for the cost of preparing the probation report, because the court did not "hold an evidentiary hearing or make a finding on [his] ability to pay, did not take a waiver of the right to such a finding, and did not even inform [him] of his right to a hearing on ability to pay." We find the issue forfeited.
The officer who wrote the probation report recommended the court "find the defendant is able to pay for the costs of the probation report in the amount of $460.00 pursuant to §1203.1b of the California Penal Code." At the sentencing hearing on August 28, 2009, the court "f[ou]nd that [defendant was] able to pay . . . for the cost of the probation report . . . and that will be $460." Defense counsel did not object to the officer's recommendation or the court's order.
Section 1203.1b states that if the probation officer determines a defendant has the ability to pay for preparing the probation report and determines the amount and manner of such payment, "[t]he probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant's ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver." (§ 1203.1b, subd. (a).)
The right to appellate review of a non-jurisdictional sentencing issue not raised in the trial court is forfeited. (People v. Gonzalez (2003) 31 Cal.4th 745, 751-755; People v. Scott (1994) 9 Cal.4th 331, 356.) Here, since the trial court could have imposed a lawful probation report fee if defendant had expressly waived his right to a hearing or if the court had held a hearing, the forfeiture rule applies to the issue of the propriety of the probation report fee since error, if any, in the imposition of that fee was procedural, not jurisdictional. (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1069-1072.) Defendant contends Valtakis was wrongly decided. We do not agree.
While the forfeiture rule might seem inconsistent with the requirement in section 1203.1b for a knowing and intelligent waiver, the overarching policy of the statute is to "shift [the] costs arising from criminal acts back to convicted defendants and [to] replenish public coffers from the pockets of those who have directly benefited from county expenditures." (People v. Bradus (2007) 149 Cal.App.4th 636, 643.) It would be inconsistent with this legislative policy to permit convicted defendants to stand silently by, and to raise the issue for the first time on appeal, thus draining both appellate and trial court resources in the process. (People v. Valtakis, supra, 105 Cal.App.4th at p. 1076.) We agree with this rationale, despite defendant's arguments to the contrary. On this record, defendant has forfeited his argument regarding the probation report fees.
The judgment is affirmed.
BLEASE , Acting P. J.
MAURO , J.