California Court of Appeals, Fourth District, Second Division
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from the Superior Court of Riverside County, No. RIF1105882 Jerry E. Johnson, Judge. (Retired judge of the Los Angles Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
[Copyrighted Material Omitted]
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Kristine Gutierrez and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Arturo Mendez Noriega raped and sodomized his girlfriend’s stepdaughter, Jane Doe, from 2003 until 2010. Defendant was convicted of nine counts of aggravated sexual assault of a child by means of rape. (Pen. Code, § 269, subd. (a)(1).) Defendant was sentenced to consecutive 15-year-to-life sentences on each count for a total state prison sentence of 135 years to life. He was ordered to pay a $10, 000 restitution fine within the meaning of section 1202.4, subdivision (b)(1), and a stayed parole revocation fine in the same amount was also imposed pursuant to section 1202.45.
Defendant now claims on appeal as follows: (1) Doe’s direct testimony should have been stricken in its entirety because defendant did not have a meaningful opportunity to cross-examine her, which violated his federal constitutional due process and confrontation rights; (2) the trial court erred by failing to sua sponte instruct the jury with the lesser included offense of unlawful sexual intercourse with a minor (§ 261.5, subd. (c)) for all counts; (3) a statement made by Doe’s sister, who also was molested by defendant, that defendant was just sitting in court and saying nothing when he knew what he had done to her constituted Griffinerror in violation of his Fifth Amendment right to remain silent; (4) testimony by Doe’s sister that she was also molested by defendant, admitted pursuant to Evidence Code section 1108, was improper propensity evidence; (5) admission of uncharged sexual offenses pursuant to Evidence Code section 1108 violated his federal constitutional rights of equal protection and due process right to a fair trial; (6) CALCRIM No. 1191, the standard instruction given to the jury when Evidence Code section 1108 evidence is admitted, erroneously interfered with the
presumption of innocence and deprived him of a finding of guilt on proof beyond a reasonable doubt; (7) failure to instruct the jury regarding defendant’s reasonable and honest belief in Doe’s consent to the sexual acts as a defense to the charges constituted error; (8) the failure to instruct on consent deprived defendant of his federal constitutional rights to due process and a fair trial; (9) the prosecutor committed misconduct by making disparaging remarks about defendant; and (10) victim restitution fines are punitive and must be determined by the trier of fact rather than the trial court. We reject defendant’s claims and affirm the judgment in its entirety.
FACTUAL AND PROCEDURAL HISTORY
A. The People's Case-in-chief
1. Doe's Testimony
Doe was born in June 1997, and was 16 years old at the time of trial. Doe considered defendant to be her stepfather even though he was not married to her mother, V.C. Defendant began living with Doe and her family in Mead Valley when she was very young. Her first memory of him was when she was four or five years old. Doe had a little brother who also lived with them. Doe’s older sister, K.A., lived with them for some time period when Doe was young.
Initially, Doe did not want to explain the details of what happened to her. She insisted she already told her story numerous times. Doe was angry because she wanted her mother back. Doe was not the kind of person who “speaks up for herself” and did not want to fight to get defendant in jail when it would not bring her mother back. It was not fair that her mother was found guilty but defendant still had not been found guilty.
Eventually, Doe indicated that defendant molested her in the living room, her mother’s bedroom and the bathroom of their house. Doe stated that defendant touched her vagina with his hand. Defendant touched her when she was “five, six, seven, eight, nine, 10, 11, 12, 13.” These assaults occurred approximately two times each week. Defendant usually touched her during the night when just she and her little brother were home and her mother was at work. Doe slept in the living room when she was five years old. K.A. slept in the second bedroom.
The first time she could remember defendant having sex with her was when she was five years old. She was in the bathroom and K.A. was in her
room. V.C. was not home. Doe used the bathroom. Defendant entered the bathroom and took her pants and underwear off. Defendant pulled down his own pants and underwear. Defendant put his penis in Doe’s vagina.
Doe did not call out for K.A. when this happened and did not fight because she was five years old and did not know what was happening to her. Doe did not tell K.A. what happened to her because she was too young to know what was going on. Doe did not want to tell her mom because it was “embarrassing.”
Sometime when she was between the ages of seven and nine, she had blood in her underwear. V.C. asked her about it. She did not tell V.C. what defendant was doing to her. Doe did not start her menstrual cycle until she was 12 years old.
Doe also indicated that defendant put his penis in her anus. It occurred in both his bedroom and the bathroom. She was “Young” when this happened and it happened more than one time. Doe would not say anything to him when this happened. These sexual assaults would happen at night while her mom was at work. He sodomized her at least twice each month. Defendant only put his penis in her vagina and anus.
Defendant oftentimes took her and her little brother to school. She would sit next to defendant in the front seat of his pickup truck. Defendant would touch her vagina and breasts over her clothes while they were driving. Doe’s little brother would see defendant touch Doe; he knew that defendant was touching her inappropriately. As she got older, she would try to move his hands away from her but he would try again.
Doe did not want to have sex with defendant. He never hit her or forced her. When defendant molested Doe, he told her that they were just playing. When she was little she believed him.
Defendant never threatened her that if she told someone something bad was going to happen. She did not know why she had sex with defendant. Only once, when she was 11 or 12 years old, she cried. She cried because she was tired of being molested.
Doe indicated that the molestations stopped when she was 13 years old. She believed it was because V.C. was pregnant and stopped working nights. Also, before V.C. got pregnant, Doe started to stay at a friend’s house after school because she did not want to go home.
Doe told her school counselor about the molestations on December 14, 2011. Doe finally told the counselor because ...