(Los Angeles County Super. Ct. No. YA072650) APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Brandlin, Judge. Affirmed.
The opinion of the court was delivered by: Johnson, J.
CERTIFIED FOR PUBLICATION
A jury convicted Alfred Carlos Hernandez of one count of continuous sexual abuse of a child under the age of 14 years. Appellant contends the trial court erred by admitting evidence of uncharged sexual offenses, tolling the statute of limitations and refusing to sustain his challenge to a juror for cause. We affirm.
The operative information alleged that between November 26, 1990, and November 25, 1999, defendant and appellant Alfred Carlos Hernandez committed the crime of continuous sexual abuse, in violation of Penal Code section 288.5, subdivision (a), by engaging in at least three acts of "substantial sexual conduct" (Pen. Code, § 1203.066, subd. (b)), and at least three lewd and lascivious acts (Pen. Code, § 288) with his granddaughter, Erica H., a child under 14 years old. The information further alleged that Erica had been under 18 at the time of the crimes, that she reported the crimes to the police and a complaint was filed within one year of that reporting, and that there was independent evidence that clearly and convincingly corroborated the allegations. (Pen. Code, § 803, subd. (f).) The information also alleged that appellant had substantial sexual conduct with a victim under 11 years old. (Pen. Code, § 1203.066, subd. (a)(8).)
Appellant pleaded not guilty and denied the special allegations. The prosecution filed a successful pretrial motion seeking to introduce evidence of other uncharged sexual offenses pursuant to Evidence Code section 1108.*fn1
Appellant was found guilty as charged and sentenced to 12 years in state prison.
A. The prosecution's evidence
1. Appellant's daughter Kathy
Appellant and his late wife, Rita, had five children: Fred, Kathy, Robert, Gloria, and Kim.*fn2 Appellant has several grandchildren. They include Robert's daughter, Erica (the victim), Sunnie, Theresa and Alyssa. Rita died in 1987. Appellant remarried in 1993. At the time of trial, Kathy was 49, Gloria was 46, and Erica was 24 years old.
From the time Kathy was in second grade until about the time she was a freshman in high school, she lived with her parents and siblings in a house in Inglewood in which all the children shared one bedroom. One night, when she was eight to 10 years old, Kathy got up to go to the bathroom. As she left the bathroom, her father came in and told her to wait. He pulled out his penis, grabbed Kathy's hand and placed it on his penis, wrapping his hand tightly around hers so she couldn't remove it. Appellant moved Kathy's hand back and forth in a stroking motion until he ejaculated. When Kathy tried to leave, appellant said, "shhh" as if trying to calm her. Kathy was dazed and thought the whole thing was a nightmare. After that incident, appellant continued to pat Kathy's butt on occasion and to make comments about women's bodies that made her uncomfortable.
By the time Kathy was about 14 years old, the family had moved into an apartment elsewhere in Inglewood. Kathy had her own bedroom. Typically, she slept in two-piece pajamas that snapped together. One night, Kathy was awakened when her father entered her bedroom. He put his hand over her mouth and put a pillow over her face, and pulled back the covers. Kathy's arms and legs flailed about as she tried to get the pillow off of her face and appellant's hand off of her mouth. In the course of that struggle, she knocked over a lamp and appellant tried to hold her hands down. Appellant unsnapped and removed Kathy's pajama bottoms and underwear and inserted his fingers into her vagina. He also inserted his penis into her vagina and said, "Don't worry, you won't get pregnant. I'm fixed." Kathy was afraid and "just wanted [appellant] to get off" and out of her room. Appellant stopped and quickly got off Kathy when they heard footsteps in the hall. Kathy's mother came into the room, turned on a light and asked what was going on. Appellant told his wife Kathy had a nightmare. Rita straightened the blankets on Kathy's bed, saw that her daughter was naked from the waist down and slapped her. Later, Kathy saw blood in her underwear. Kathy never talked to her mother about what her father had done.
Appellant put his fingers inside Kathy's vagina on other occasions. She also recalled he had licked her vagina, although she could not recall how old she was at the time that occurred. Kathy had "suppressed" most of her memories of her father's sexual abuse and her memory was "fragmented." The first time she told anyone her father had molested her was as an adult, during confession to a priest. She told her brothers and sisters after their mother died, but did not share the details with them. She never told anyone about the incident in the bathroom or about having been raped by her father.
Kathy moved out of the family home at 19 years old. Her relationship with her father was strained and she had tried to distance herself from him. But she also tried to maintain a "facade of normalcy" with appellant for the benefit of her family. By the time of trial, it had been at least 30 years since appellant engaged in sexual conduct toward Kathy. Kathy believed Erica's account of molestation by appellant, so she decided to talk to the police. She felt guilty for not having reported her father; if she had, her niece might not have been abused.
2. Appellant's daughter Gloria
Gloria is three years younger than Kathy. Beginning when Gloria was four or five years old until she was in middle school, Gloria used to lie on the living room couch with her father in the family's house in Inglewood. While the other kids watched cartoons in the morning (and her mother slept), appellant would cover himself and Gloria with a blanket and touch her chest and vagina. The touching happened so often that, at first, Gloria didn't realize what her father did was wrong; she grew uncomfortable with it as she got older.
When the family moved to their new apartment, Gloria shared a room with her younger sister Kim. Beginning when she was nine or 10 years old, Gloria slept in her clothes to try to keep her father from touching her at night. When she was in third or fourth grade, she began putting a trash can behind the bedroom door so she would hear if anyone came in the room at night. Several times, Gloria heard the bedroom door open and saw her father standing in the doorway. Once he came in and tried to kiss her on the mouth. Sometimes he came in the bathroom while she showered. When Gloria was in middle school, appellant would kiss her neck, touch her breasts and try to stick his hand in her pants.
Once, when she was asleep in her room, Gloria heard Kathy scream, heard something fall and heard someone running in the hall. Gloria and Kim went to Kathy's bedroom. Kathy was in the room crying; Rita stood at the door; and appellant was coming out of the room wearing only underwear. Appellant told Gloria that Kathy had a nightmare; Rita told her to go back to bed.
Gloria once told her mother that appellant had touched her. Her mother replied that her "dad loves you and wouldn't do anything like that." Gloria never told anyone else about appellant touching her inappropriately. She was ashamed and thought that if her mother hadn't believed her no one would. She became involved in extracurricular activities in high school to avoid appellant and being at home.
Gloria's daughter, Sunnie, was born when Gloria was 17 years old. Gloria lived with her parents when she was in college for financial reasons and because her mother helped care for Sunnie when she was at school or work. Appellant may have picked Sunnie up at school on some occasions. Gloria moved out when she was 24, shortly after her mother died. Gloria allowed her child to stay in the house with appellant because she was in denial about what happened to her and because she believed Rita would protect her.
When Gloria was 19 years old, her father tried to rape her. She had come home from work late one night and sat down next to appellant, who was watching television on the couch in the living room. Gloria fell asleep. When she woke up, her father had unbuttoned her shirt, was sucking on her breast, and had unbuckled her pants and was trying to pull them down. Gloria fought appellant trying to keep her pants on as he put a pillow over her face and pulled her pants and underwear down. Appellant unzipped his pants, pulled out his penis and tried to insert it into Gloria's vagina. Her screams were muffled by the pillow. Gloria put her own fingers into her vagina so her father could not penetrate her. Appellant told her, "I can't get you pregnant, I'm fixed," and called her "Rita." Gloria's mother was still alive at the time. Gloria scratched appellant's neck and "he finally gave up."
Gloria told the man she was dating at the time about what had happened. After Rita died, she also confided in Kathy. In 1988 Gloria told her ex-husband about the molestation. She had been in therapy on and off since her teens, and was diagnosed with posttraumatic stress disorder. She has nightmares, stomachaches, anxiety and depression due to these incidents. Gloria limited her contact with her father after Rita died. When she heard something had happened to Erica, Gloria felt guilty that she had not reported her father earlier, thinking--like Kathy--that doing so might have prevented Erica's molestation. She decided to file a ...