Cruz County Superior Court, Case Nos.: F07574, F24276, Hon.
John Steven Salazar Judge.
Attorneys for Plaintiff/Respondent: The People, Kamala D.
Harris Attorney General of California, Gerald A Engler, Chief
Assistant Attorney General, Jeffrey M. Laurence, Senior
Assistant Attorney General, Eric D. Share, Supervising Deputy
Attorney General, Aileen Bunney Deputy Attorney General.
Attorneys for Defendant/Appellant: Jose Rodriguez Olivas,
Robert L. S. Angres Attorney at Law under appointment by the
Court of Appeal for Appellant.
convicted defendant Jose Rodriguez Olivas of 17 felony counts
related to his continuous sexual abuse of M.M. (minor)
between 1995 and 2003. (Pen. Code, §§ 288.5, subd.
(a); 288, subd. (b)(1); 269, subd. (a)(1),
(a)(4).) The trial court imposed a 78-year
determinate prison sentence for the continuous sexual assault
and the forcible lewd act counts. It also imposed a
consecutive indeterminate term of 75 years to life for the
aggravated sexual assault counts.
appeal, defendant argues his trial counsel provided
ineffective assistance by failing to request a jury
instruction about voluntary intoxication. He also contends he
was prejudiced by the trial court's incorrect response to
a jury question. We will conclude defendant's trial
counsel did not provide ineffective assistance. However, the
trial court prejudicially erred in its response to the
jury's question about the aggravated sexual assault
counts. Accordingly, we will reverse the judgment on the
aggravated sexual assault counts and will remand this matter
for further proceedings.
was born in September 1990 to Yolanda (mother) and a man
other than defendant. Minor has two older sisters, Y. (born
in December 1983) and B. (born in May 1988). Minor also
has two younger half sisters and a younger half brother.
Defendant is the father of minor's half sisters. Mother
is the mother of all six children.
Pines Apartment Before Moving to México
to minor's testimony at defendant's jury trial, minor
was five years old when she lived with mother and defendant
(who was mother's boyfriend) in a two-bedroom apartment
at an apartment complex in Watsonville. The apartment complex
was called The Pines. Minor testified that defendant was nice
at first but at some point told her he wanted to have
"father and daughter love" with her. Defendant
would wink and make other gestures toward minor when mother
was not looking. Defendant began kissing minor on the lips
using his tongue, and touching her "private parts,
" including her chest, vagina, and back. Minor testified
that defendant touched her vagina and put his hand between
her labia "many times, " "like, an everyday
thing...." These touching incidents occurred in the
kitchen, minor's bedroom, and in defendant's car.
Minor testified that defendant picked her up from school very
often during this period. Defendant reportedly told minor,
"[T]hat's how a father, like, shows his love to a
daughter." He also told her not to tell anyone. Minor
eventually moved with her mother to México for a short
time when she was about five-and-one-half years old.
Angeles Hotel and The Pines with B. and Y.
testified that she and B. came back to California after about
a month in México. Defendant picked them up and took
them to a hotel in Los Angeles for the night. Defendant asked
minor to sleep in his bed with him rather than with B. in her
bed, but B. refused to let minor do so. Although minor had
fallen asleep in B.'s bed, she woke up in defendant's
bed without remembering how she got there. At some point
while staying at the hotel, the girls went to the bathroom to
take a shower. Defendant tried to enter the bathroom, but the
door was locked. Defendant then banged on the door and told
the girls to open it, but they refused.
to minor's testimony, mother and Y. returned to
California shortly after minor and B.'s return. They all
moved into the two-bedroom apartment at The Pines. Minor, B.,
and Y. shared one room while mother and defendant shared the
other. Because minor shared a room with her sisters,
defendant no longer had access to her at night, but minor
testified that defendant would touch her inappropriately
during the day. Defendant would rub her chest and would put
his hand between her labia, moving his hand up and down.
also testified that defendant's conduct after she
returned from México escalated. Defendant would expose
himself to her and would make her touch his penis when her
sisters were not home or when they were in a different room.
Defendant would also grab minor's hands, put them on his
penis, and make her massage it back and forth. Defendant
"would get mad" if she refused and would tell her
that he was the one who bought food and paid for rent and
electricity, which minor understood as threats that he would
withhold those things if she refused his sexual demands. He
would tell minor: "I am the one who rules here."
1999 or 2000, the family moved to a house in Watsonville.
Minor, Y., and B. shared a room at the house. Defendant
frequently grounded minor and B., and would punish them by
making them copy pages from books or write apology letters to
him. Minor testified that defendant would also ground her if
she cried during inappropriate touching incidents or if she
prepared his beer incorrectly.
drank almost every day. Once or twice a week he would come
home at 3:00 or 4:00 in the morning. He would call mother and
her daughters beggars, and he would hit walls and throw
things. Minor testified that defendant would smell like
alcohol when he returned home late at night. Minor, B., and
mother would stay in the girls' bedroom when defendant
came home late. Defendant would then kick the door open and
make mother come to bed with him. The door jamb was sometimes
damaged by defendant's kicking.
time they were living at the Watsonville house, defendant
reportedly told minor: " ‘Now you're older you
can do more things.' " Minor testified that
defendant followed a routine in which he would touch her
inappropriately. He would begin by touching her chest, he
would then put his fingers between her labia, and then he
"would do the same in the back." Defendant would
then have her touch his penis while he kissed her on the
mouth, and he would make her put her mouth on his
"private part." Minor testified that when oral sex
occurred, defendant would put her on her knees and tell her
to lick, kiss, and suck his penis while he grabbed her head
from the back. When there was not enough time, defendant
would touch minor's chest, "private part, " and
back. The touching incidents occurred in the kitchen,
defendant's bedroom, the living room, and once in the
also testified that defendant started rubbing his penis
between her labia at some point while they lived at the
Watsonville house. Sometimes defendant would rub his penis
hard enough against her labia that it would hurt. When asked
at trial how often this happened, minor said: "All the
time. It was just every day." She testified that the
genital-to-genital contact occurred in defendant's
bedroom, the kitchen, and the back yard.
testified that defendant frequently smelled like alcohol
during touching incidents, but there were also "times
when he didn't have alcohol on his breath." If minor
cried, defendant would grab her arm and tell her to stop
crying, which sometimes left bruises on her arm. Defendant
continued to threaten to withhold food and to stop paying
bills if minor did not comply with his sexual demands. On
certain occasions when minor resisted, defendant carried
through on his threats by not buying food and by
disconnecting the electricity. Defendant would tell minor:
" ‘I didn't bring food because you're
being bad.' " Minor testified that she understood
being bad to mean "[n]ot letting him touch me."
recalled an incident involving a K-Mart. She thought the
incident had occurred when she was seven or eight years old,
but she also testified she thought they were already living
at the Watsonville house then (by which time minor was at
least eight years old). Defendant picked minor up from
school, took her to a K-Mart in Watsonville, and told her to
choose all the toys she wanted. Minor picked out several toys
and put them in a cart. Defendant told her they would come
back for the toys later. Defendant then took minor to the car
and told her that if she wanted the toys she would have to
take her clothes off and get on top of him. Minor started
crying. Defendant got mad at her for crying, took her home
without any inappropriate touching, and grounded her for two
or three months.
also recalled an incident involving a hotel that occurred
when she was nine or 10 years old. Defendant took minor to a
hotel room and told her she would have to do "certain
things" for him or he would not sign a permission slip
for her to participate in a school field trip. Minor
testified she was crying, but defendant told her to be quiet
and to take off her clothes. Minor took off her clothes and
defendant laid her on the bed. Minor initially testified that
defendant's inappropriate conduct consisted only of
touching her chest and vagina with his hand and fingers. But
after the prosecutor refreshed minor's recollection with
statements minor made to an investigator before trial, minor
testified that defendant also made minor put her mouth on
defendant's penis during this incident.
January 2002, minor heard mother and defendant arguing in
their bedroom. Minor testified that she and B. went to the
locked bedroom door and tried to open it because minor could
hear loud screams. One of them managed to get the door open
and minor saw mother in a corner of the bedroom with
defendant on top of her. Minor tried to call 911 but
defendant disconnected the phone by pulling out the cord.
Minor then ran to a neighbor's house and called the
police. Police officers responded and arrested defendant.
returned to the house within days of the arrest when mother
reportedly "removed the charges" against him. Minor
testified that defendant was very aggressive toward her when
he returned because he blamed her for calling the police.
Once defendant was back in the house, minor and B. started to
disobey him. Defendant moved out of the house shortly
thereafter. Minor believed he left because "he
didn't like that his authority was being challenged"
by the girls.
Disclosure to Family
2003, defendant returned to the house a second time. Minor
testified that she returned from school one day and found
defendant in mother's bedroom. Minor decided she
"couldn't take it anymore" and told Y., B., and
possibly mother that defendant had been "touching me and
making me put my mouth on his private part." Minor cried
uncontrollably. B. and Y. screamed at defendant, and
defendant packed his things very quickly and left the house.
Minor did not see defendant again until the trial in this
after minor disclosed the abuse allegations, mother took her
to a Planned Parenthood clinic where Physician's
Assistant Susan Lasko performed an examination. According to
Lasko's notes from the visit, minor told her she could
not remember if penetration occurred. Minor explained at
trial that she denied having been penetrated by defendant
because at the time of the examination she thought Lasko was
asking whether defendant's penis had ever gone "all
the way in" her vagina.
2014, Lasko testified at trial based on a report she prepared
in 2003 after conducting an external genital examination of
minor. Lasko found no bruising, bleeding, or trauma on
minor's external genitalia. Lasko testified that minor
had told her that defendant had not molested her in months or
possibly years. Lasko opined that it "would have to be
very extensive trauma to leave anything that could be seen
after months." Lasko also testified that her notes
stated that defendant, " ‘[p]ossibly rubbed [his]
penis on ...