IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
September 15, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
LOUIS CHARLES ROMANO, DEFENDANT AND APPELLANT.
(Super. Ct. No. CRF 08-2117)
The opinion of the court was delivered by: Nicholson , Acting P.J.
P. v. Romano
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 convicted defendant Louis Charles Romano, age 63, of two crimes, forcible foreign object penetration (count 5) and forcible oral copulation of 15-year-old R.H. (count 6). He was acquitted of possessing obscene matter depicting sexual conduct by minors (count 7). The jury deadlocked, a mistrial was declared, and dismissals were entered on four additional counts involving victim V.H., R.H.'s younger sister (counts 1 through 4). As a result, multiple-victim enhancement allegations on counts 5 and 6 were also dismissed. Defendant was sentenced to state prison for the upper term of eight years on count 5, plus a fully consecutive upper term of eight years on count 6.*fn1
On appeal, defendant contends (1) there was insufficient evidence that the sexual acts were committed by force or violence; (2) the trial court abused its discretion when it refused to sever the child pornography count, on which he was acquitted, from the remaining counts; and (3) his trial counsel rendered ineffective assistance to the extent that he should have objected to the volume of computer evidence. We affirm the judgment.
Defendant and R.H.'s father worked together at several construction companies and have been friends for 20 to 22 years. Eventually, defendant also became a friend of his wife and three daughters. Defendant accompanied the family to a theme park and shared holiday meals with them. The family would visit defendant at his residence, and the three girls would swim in his pool. Defendant would take the girls shopping and would buy them gifts. He liked to be called Uncle Lou.
During a visit in 2007, defendant told R.H. that he did not have any recent photographs of her and that he wanted to take some nice ones. He removed a blue shirt from her luggage and told her to put it on, which she did. He photographed her wearing the blue shirt, underwear, and a bra. He directed her to sit on the floor and spread out her legs.
Eventually, defendant suggested to R.H.'s parents she should "make extra money" by cleaning his house. One day, while she was cleaning, defendant asked R.H. if she had ever seen pornography. When she said no, he told her to go to the computer and sit on his lap. He proceeded to tell her about, and show her images of, a girl who "does pornography for a living."
One day in April 2008, defendant picked up the mother, R.H., and V.H. from the grocery store. He dropped off the mother at home and took the girls shopping. They went to a department store where defendant bought R.H. bathing suits, shorts, pants, and one or two shirts. She did not need a bathing suit, but defendant suggested that she buy one. He chose one style of suit for her and she chose another. Because she was not sure which size she wore, she bought two suits of her chosen style in different sizes. She did not try them on at the store because defendant said that she could try them on at his house.
When they returned to defendant's house, R.H. went to the upstairs bathroom to try on the bathing suits. He interrupted her and told her to come out of the bathroom. She stepped out wearing her T-shirt and swimsuit shorts and walked to where defendant was standing.
Defendant told R.H. to stand up on the bed. After she did so, he told her to try on the other bathing suit bottom. She did so, but it was too large, so she tried on the smaller size.
Defendant then told R.H. to try on the bathing suit top. After removing her T-shirt and sports bra but without removing her regular bra, she tried on the bathing suit top and he told her to sit down on the bed. She complied and he knelt down next to her. Then he ran his finger along the elastic of her underwear and told her that she should not wear such tight underwear because it would cut off the circulation in her legs. Next he "pulled on the inside of the bathing suit and the underwear so he [could] see what was between [her] legs." Then he pulled the bathing suit bottom and underwear down to her knees.
Once the bathing suit was pulled down, defendant began touching R.H.'s vagina and telling her that she "should clean [herself] down there more often because [she] could cause an infection." Eventually, he said that he would clean the area himself. He got some sort of paper towel or toilet paper from the bathroom, "clean[ed]" her vaginal area, and "stuck his finger inside" her vagina "no more than 20 times."
While defendant was putting his finger inside R.H.'s vagina, she "tried to close [her] legs," but he "put one hand on each leg to keep them open."
Defendant then asked R.H. if she used pads or tampons. When she told him pads, he told her she should use tampons because "pads were getting out of style and that it kind of makes -- it smells down there a little fishy . . . ." Then he moved closer and started licking her vagina with his tongue. She twice tried to scoot back away from him, but he continued licking her. She explained that she had made "little tiny scoot backs[, not] such a big scoot back that he would notice that [she] was trying to scoot back."
Eventually defendant stopped and told R.H. "this is what oral sex is," although he claimed he "wasn't having sex with" her. He asked if she had ever seen a man's penis, and she said, "[N]o." He told her that she "shouldn't tell [her] parents what happened because that we [sic] wouldn't want them to think bad of him." She said "okay" and then went to the bathroom to dress.
R.H. said she no longer wanted to swim. After sitting by the pool, she decided that she wanted to go home. She telephoned her mother, said that she did not want to stay with defendant, and added that she had homework to do. The mother could tell that something was wrong, so they came up with a plan to tell defendant that R.H. had an important school assignment to complete and thus needed to come home.
After talking with the mother on the telephone, defendant drove R.H. home. On the way home, she telephoned her boyfriend and said she could not talk but would call him again when she got home. After she got home, she spoke with the boyfriend again and he came to her house. At his insistence, she told her parents what had happened and the mother immediately called the police.
The prosecution presented evidence from a nurse practitioner, a criminalist, and a DNA analyst.
Defendant testified on his own behalf. He denied seeing R.H.'s vagina and denied that he had ever digitally penetrated or orally copulated her.
The defense presented evidence from a nursing instructor and a clinical psychologist. The defense recalled the prosecution's DNA analyst and presented its own DNA analyst. The defense also called four character witnesses.
Defendant was convicted by jury of forcible foreign object penetration, section 289, former subdivision (a)(1), now subdivision (a)(1)(A), in count 5 and forcible oral copulation, section 288a, former subdivision (c)(2), now subdivision (c)(2)(A), in count 6. He contends there was insufficient evidence that the sexual acts were committed by force or violence. We are not persuaded.
"On appeal, the test of legal sufficiency is whether there is substantial evidence, i.e., evidence from which a reasonable trier of fact could conclude that the prosecution sustained its burden of proof beyond a reasonable doubt. [Citations.] Evidence meeting this standard satisfies constitutional due process and reliability concerns. [Citations.] [¶] While the appellate court must determine that the supporting evidence is reasonable, inherently credible, and of solid value, the court must review the evidence in the light most favorable to the prosecution, and must presume every fact the jury could reasonably have deduced from the evidence. [Citations.] Issues of witness credibility are for the jury. [Citations.]" (People v. Boyer (2006) 38 Cal.4th 412, 479-480.)
As the parties recognize, this court has held that "oral copulation by force within the meaning of section 288a, subdivision (c)(2) is proven when a jury finds beyond a reasonable doubt that defendant accomplished an act of oral copulation by the use of force sufficient to overcome the victim's will." (People v. Guido (2005) 125 Cal.App.4th 566, 576.) This same definition of "force" has been applied to the crime of foreign object penetration (§ 289, subd. (a)(1)). (In re Asencio (2008) 166 Cal.App.4th 1195, 1204-1205.) The jury was instructed in accordance with this definition.
For the reasons stated in People v. Griffin (2004) 33 Cal.4th 1015 at pages 1025-1027, we decline defendant's invitation to consider whether he used "'physical force substantially different from or substantially greater than that necessary to accomplish'" the copulation or penetration. (Id. at p. 1026.)
The evidence showed that when defendant was putting his finger inside R.H.'s vagina, she "tried to close [her] legs," but he "put one hand on each leg to keep them open." This is substantial evidence that he accomplished an act of foreign object penetration by the use of force, i.e., the force of his hands against her legs, which was sufficient to overcome her will that her legs be closed and the sexual act not be completed. (See People v. Boyer, supra, 38 Cal.4th at pp. 479-480; People v. Guido, supra, 125 Cal.App.4th at p. 576.)
Contrary to defendant's claim, R.H. never "said that her attempts to [close her legs] were half-hearted." Rather, she "guess[ed]" that her attempts "[were not] really very forceful." Her speculation appears to address the manner in which the 63-year-old perpetrator would have perceived the force exerted by the 15-year-old victim. There is no suggestion that she could have been more "forceful" had she truly willed that she not be penetrated.
The evidence showed that when defendant started licking R.H.'s vagina with his tongue, she twice tried to scoot back away from him, using "little tiny scoot backs[, not] such a big scoot back that he would notice that [she] was trying to scoot back." The jury reasonably could deduce from this testimony that defendant accomplished an act of oral copulation using sufficient force to prevent her "scoot backs" from distancing her vagina from his tongue. (See People v. Boyer, supra, 38 Cal.4th at pp. 479-480; People v. Guido, supra, 125 Cal.App.4th at p. 576.) The jury could further deduce that she intended for him not to notice, since he foreseeably would apply even greater force once he noticed her efforts. On this record, the "little tiny scoot backs" are sufficient to support an inference that the copulation was against R.H.'s will. Defendant's perfunctory claims that this evidence does not inspire confidence, does not have solid value, and thus should be rejected, have no merit.
Alternatively, defendant's convictions are supported by substantial evidence of duress. Duress is established where there is "'a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.' [Citations.]" (People v. Cochran (2002) 103 Cal.App.4th 8, 13, disapproved on other grounds in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12.) This definition is appropriate where, as here, both crimes must be committed "against the victim's will" (§§ 288a, subd. (c)(2)(A), 289, subd. (a)(1)(A)), and thus "lack of consent must be proven" (People v. Soto, supra, at pp. 242-243.)
In this case, reasonable jurors could find an implied threat of hardship that was sufficient to coerce a reasonable 15-year-old of ordinary susceptibilities to acquiesce in acts to which she otherwise would not submit. (People v. Cochran, supra, 103 Cal.App.4th at p. 13.) As noted, defendant was age 63 and R.H. was age 15. She had known him since she was born. They would spend holidays together and take trips together. She called him Uncle Lou and defendant stated that he treated her like a daughter. He helped her family financially and was constantly taking R.H. shopping and buying her presents. A 15-year-old girl could perceive the loss of such a family-like relationship, with its attendant emotional and material benefits, as a hardship and thus could feel coerced to avoid the implied loss by acquiescing in acts that she otherwise would shun.
Moreover, contrary to defendant's argument, reasonable jurors could locate coercion in his comment that R.H. "shouldn't tell [her] parents what happened because that we [sic] wouldn't want them to think bad of him." She could deduce that they would "think" sufficiently "bad" of him that they would call the police, which is precisely what they did. Jurors could conclude that the comment had a coercive effect because, at least initially, R.H. had refused to report the incidents to her parents and had refused to believe her boyfriend's warning that he would do so if she did not. Defendant's convictions are supported by substantial evidence.
Defendant contends the trial court abused its discretion when it refused to sever the child pornography charge against him, section 311.11, subdivision (a), in count 7, from the remaining counts "because the pornography evidence was lengthy and highly inflammatory when compared to the remaining evidence." We are not convinced.
As noted, counts 1 through 4 involved conduct with V.H.; counts 5 and 6 involved the present crimes against R.H.; and count 7 alleged that defendant had possessed obscene matter depicting sexual conduct of a minor. Before the start of trial, defendant filed a motion to sever count 7 from the remaining counts. He argued that the evidence related to count 7 was inflammatory and would prejudice the jury, preventing him from getting a fair trial.
In opposition, the prosecution contended the counts were properly joined and the evidence related to count 7 would be cross-admissible in the trial for counts 1 through 6.
In denying the motion, the trial court acknowledged "the defense's concern about possibly inflaming the jury . . . ." However, the court concluded the evidence was cross-admissible and "goes to things like intent, lack of mistake, and that sort of thing. [¶] So severing it would not lead to any sort of a savings of time or leaving things in a position where the jury would not learn of it anyway. A proper instruction would take care of it."
The prosecution later presented evidence regarding the contents of the hard drive in defendant's computer. An "expert in computer forensics in the examination and analysis of computer evidence" testified he had examined the computer and recovered 50 to 100 questionable images from the hard drive. The expert testified regarding the inappropriate Web sites the computer had visited and the search terms that had been used while looking for online information. Thereafter, a pediatrician testified as an expert in child and adolescent development. After examining photographs recovered from the computer, the pediatrician opined many of the females depicted there were minors. The defense presented expert testimony that contradicted the prosecution expert testimony.
The jury deadlocked on counts 1 through 4, convicted defendant on counts 5 and 6, and acquitted him on count 7.
"'In determining whether a trial court abused its discretion under section 954 in declining to sever properly joined charges, "we consider the record before the trial court when it made its ruling."' [Citations.] 'The relevant factors are whether (1) the evidence would be cross-admissible in separate trials, (2) some charges are unusually likely to inflame the jury against the defendant, (3) a weak case has been joined with a strong case, or with another weak case, so that the total evidence may unfairly alter the outcome on some or all charges, and (4) one of the charges is a capital offense, or joinder of the charges converts the matter into a capital case.' [Citation.] '[I]f evidence underlying the offenses in question would be "cross-admissible" in separate trials of other charges, that circumstance normally is sufficient, standing alone, to dispel any prejudice and justify a trial court's refusal to sever the charged offenses.' [Citations.]" (People v. Lynch (2010) 50 Cal.4th 693, 735-736.)
Defendant recognizes pornographic images of children can be admitted in cases alleging improprieties with minors on the theory they show his intent to have sex with children. (Evid. Code, § 1101, subd. (b); People v. Page (2008) 44 Cal.4th 1, 40, citing People v. Memro (1995) 11 Cal.4th 786, 865.) Thus, as noted by the trial court, evidence that defendant's computer contained pornographic images of children would have been "cross-admissible" at a separate trial of counts 5 and 6 to prove his intent in committing those acts. Standing alone, this circumstance is sufficient to dispel any prejudice as to counts 5 and 6 and to justify the trial court's refusal to sever count 7. (See People v. Lynch, supra, 50 Cal.4th at pp. 735-736.)
Defendant disagrees, claiming "some of the evidence was not relevant because it did not reflect an interest in" underage females. For example, computer searches for "boys," "lesbian porn," and "cream pie [T]hais" were not relevant to the present facts. Defendant also claims the "sheer volume" of the remaining, relevant evidence was "just too much -- more prejudicial than probative."
Defendant has forfeited both claims by failing to object on these specific grounds in the trial court. (Evid. Code, § 353, subd. (a); People v. Demetrulias (2006) 39 Cal.4th 1, 21; see part III, post.) Contrary to the argument in his reply brief, his in limine motion did not contend the "sheer volume" of the expected evidence rendered it more prejudicial than probative.
In any event, any error in admitting excessive relevant evidence could not have been prejudicial. The jury's acquittal on count 7 and its deadlock on counts 1 through 4 shows that it did not find the evidence so inflammatory that it was willing to convict defendant simply because he had possessed pornographic material. Thus, contrary to his argument, it does not appear the evidence from the weaker pornography count "spilled over" to the arguably stronger foreign object penetration and oral copulation charges. It is not reasonably probable defendant would have received a more favorable verdict had the severance motion been granted. (People v. Page, supra, 44 Cal.4th at pp. 41-42, 61-62; People v. Watson (1956) 46 Cal.2d 818, 836.)
Defendant contends his trial counsel rendered ineffective assistance when he failed to object to the large quantity of computer evidence on grounds of relevance and undue prejudice. We are not persuaded.
"'"[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was 'deficient' because his 'representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citation.] Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" [Citation.]' [Citation.]" (People v. Avena (1996) 13 Cal.4th 394, 418, fn. omitted.)
"'"[If] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.' [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. [Citations.]" (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
In this case, defendant's trial counsel never specifically objected that any of the computer evidence was unduly prejudicial. Nor did counsel specifically object that any of the evidence, such as computer searches for boys or lesbian sex, was irrelevant. Counsel was not asked to explain these alleged omissions, and the appellate record sheds no light on why they occurred.
Moreover, a satisfactory reason appears for counsel not objecting on grounds of undue prejudice. "The governing test . . . evaluates the risk of 'undue' prejudice, that is, '"evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues,"' not the prejudice 'that naturally flows from relevant, highly probative evidence.' [Citations.]" (People v. Padilla (1995) 11 Cal.4th 891, 925, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1, italics omitted.)
Trial counsel could have perceived, against a backdrop of evidence that defendant committed six sexual offenses upon two girls whom he treated as extended family, none of the computer evidence would tend "uniquely" to evoke an emotional bias against him as an individual; any bias that may have arose would be far from unique. (People v. Padilla, supra, 11 Cal.4th at p. 925.) In any event, a claim of ineffective assistance based on undue prejudice is more appropriately brought in a habeas corpus proceeding. (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
It is not necessary to consider whether there could be a valid reason not to object to evidence of computer searches for incest, lesbian adults, males, or Thais. It is not reasonably probable the jury doubted the prosecution evidence of what defendant had done with R.H., but convicted him anyway based upon what he had seen on his computer. Defendant could not have fared any better had the arguably irrelevant computer evidence been excluded. (People v. Avena, supra, 13 Cal.4th at p. 418.) Any ineffective assistance related to the arguably irrelevant evidence could not have been prejudicial.
The judgment is affirmed.
We concur: RAYE , J. DUARTE , J.