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People v. Olivas

California Court of Appeals, Sixth District

June 28, 2016

THE PEOPLE, Plaintiff and Respondent,
JOSE RODRIGUEZ OLIVAS, Defendant and Appellant.

         Santa 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.

          MÁRQUEZ, J.

         A jury 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).)[1] 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.

         On 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.


         Minor 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).[2] 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.

         The Pines Apartment Before Moving to México

         According 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.

         Los Angeles Hotel and The Pines with B. and Y.

         Minor 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.

         According 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.

         Minor 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."

         Watsonville House

         Around 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.

         Defendant 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.

         By the 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 back yard.

         Minor 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.

         Minor 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."

         Minor 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.

         Minor 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.

         Domestic Violence Arrest

         In 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.

         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.

         Minor's Disclosure to Family

         In May 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 case.

         The day 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.

         In 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 ...

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