California Courts of Appeal Reports
PEOPLE v. VALENCIA, H029370 (Cal.App. 12-26-2006) THE
PEOPLE, Plaintiff and Respondent, v. JESUS VALENCIA,
Defendant and Appellant. H029370 Court of Appeal of
California, Sixth District. December 26, 2006 Certified
for Partial Publication[fn*]
[fn*] This opinion is certified for publication with the
exception of sections IIIB, IIIC1 and IIIC2.
[EDITORS’ NOTE: THIS OPINION IS CERTIFIED FOR PARTIAL
PUBLICATION WITH THE EXCEPTION OF SECTIONS IIIB, IIIC1 AND
IIIC2. THE SHADED TEXT BELOW REPRESENTS THE ORIGINAL
OPINION AND IS PROVIDED FOR REFERENCE PURPOSES ONLY.]
Santa Clara County, No. CC460324, Honorable Gilbert T.
Brown.
Attorney for Appellant: Dallas Sacher, Under Appointment by
the Sixth District Appellate Program.
Attorneys for Respondent: Bill Lockyer, Attorney General of
the State of California.
Robert R. Anderson, Chief Assistant Attorney General.
Gerald A. Engler, Senior Assistant Attorney General.
Rene A. Chacon, Supervising Deputy Attorney General.
David M. Baskind, Deputy Attorney General.
MIHARA, ACTING P.J.
Defendant was convicted by jury trial of two counts of
continuous sexual abuse of a child (Pen. Code, §
288.5) and two counts of forcible lewd conduct on a child
(Pen. Code, § 288, subd. (b)(1)) for acts against
his three younger sisters. He was committed to state prison
for a term of 30 years. On appeal, he contends that his
trial counsel was prejudicially ineffective in failing to
obtain exclusion of his statement to the police on the
ground that it was involuntary and in failing to object to
and obtain the exclusion of other prejudicial and
inadmissible evidence. He has also filed a petition for a
writ of habeas corpus in which he repeats these same
contentions, but does not submit any additional evidence to
support them. We dispose of his habeas petition by separate
order. In the published portion of this opinion, we
conclude that defendant’s trial counsel was prejudicially
deficient in failing to object to inadmissible evidence
that the prosecution relied upon to prove the time period
element of one of the continuous sexual abuse counts.
Consequently, we reverse and remand for potential retrial
on that count. In the unpublished portion of the opinion, we
reject defendant’s other contentions.
I. Factual Background
Defendant’s mother has eight children, including defendant
and his sisters L., K. and D. In 2000, defendant came from
Mexico to live with his mother in her home in San Jose
where L., K. and D. also resided.
David and Rosalie Correa both worked at L’s school and were
acquainted with her. In the fall of 2003, L. told Rosalie
Correa that she had seen defendant kissing K. on her mouth.
In January 2004, L. told Rosalie Correa that defendant had
“pulled off her blouse” while they “were horse playing.” In
February 2004, L., looking scared, nervous and embarrassed,
told David Correa that her brother had “touched” her “in a
bad way.” David Correa told L. that she needed to tell her
teacher or his wife, and David Correa informed Rosalie
Correa of L.’s allegation. L. told Rosalie Correa that her
brother had “crawled into bed with her” the previous week
but “nothing happened.” Rosalie Correa promptly filed a
report with Child Protective Services (CPS).
Victoria Sandoval also worked at L.’s school and was
acquainted with L. In March 2004, L. told Sandoval that
defendant “tried to get in bed with her.” Sandoval reported
this to CPS. L. subsequently told Sandoval that defendant
was “touching her.” L. said that she had told her mother,
but her mother did not believe her.
On July 15, 2004, L., D. and K. encountered Sandoval at a
Walgreen’s. K. told Sandoval that defendant “had been
sticking his hand in their underpants and touching” K. and
D. Sandoval took the girls to her home and tried
unsuccessfully to contact CPS. She then contacted the
police.
The police interviewed each of the girls twice that
evening. In her initial interview, eight-year-old D. told
the police that defendant had kissed her on the lips. He
had also pulled her pants part of the way down, tried to
remove her underpants and tried to put his hand on her
private parts. This latter event had occurred in defendant’s
bedroom. D. insisted that there were “[t]wo times only.”
In her initial interview, nine-year-old K. told the police
that, a couple of years ago, defendant had pulled her pants
part of the way down, but she had told him to stop, pulled
her pants back up and run away. K. said defendant had tried
to touch her four or five times. Several times, defendant
had tried to remove her shirt, and one time he had
succeeded. The time he succeeded, K. was wearing another
shirt under that shirt. Defendant then proceeded to try to
remove her pants, and he touched her chest near her neck.
K. had recently seen defendant try to remove D.’s pants in
their mother’s bedroom. K. also described an incident that
occurred in defendant’s bedroom when he had offered to give
her one of his fish if she took off her clothes. K. refused
to do so. K. told L. about defendant’s touchings, and L.
said she “was gonna try [to get] somebody to help us.”
In her initial interview, fourteen-year-old L. told the
police that defendant had “tried to kiss” D. and “he
touched their private.” L. related that D. had told her
that day that defendant had recently touched her private
parts. L. said she had not known until that day that
defendant was touching D. and K. Defendant had touched L.
between her legs months earlier, when she was still
thirteen. This touching had occurred on the stairs in the
midst of an incident precipitated by defendant taking L.’s
keys. L. and defendant began fighting. Defendant knocked
her to the floor, hit her and then grabbed her between her
legs over her clothing. L. responded by choking him.
Defendant then somehow unsnapped her bra, pulled up her
shirt and laughed at her.
L. described an occasion on which she had consumed six
beers, and defendant had convinced her to spend the night
in his bed. She said she had spent the whole night in
defendant’s bed, but he had not touched her at all that
night though he slept in the same bed. Both of them had
slept fully clothed. L. denied that defendant had ever
touched her under her clothing.
L. said she had told her older sister N. about defendant
touching her, and N. had said that defendant had done the
same thing to her. L. had also told her mother about
defendant’s conduct. Her mother cried and told her that
there were cameras in the house “[c]ause they were
watching” defendant “[c]ause they felt that he, he did drugs
and stuff.”
In her second interview that evening, D. told the police
about an incident in defendant’s bedroom when she and K.
had gone to see defendant’s fish. Defendant tried to remove
their clothing. On another occasion, defendant had tried to
kiss her on the lips. She insisted that these was the only
two times defendant had touched her.
In her second interview, K. told the police that defendant
had removed her and D.’s pants and tried to touch them. She
also said that defendant had once rubbed her chest,
skin-to-skin, a year earlier. K. also reported either
having seen defendant touch D. once or having been told by
D. that defendant had touched D. K. stated that defendant
had once tried to pull her pants down, but she had hit him,
pulled her pants back up and run away. This event had
occurred in her mother’s room a week ago. She had been
wearing shorts and underwear under her pants, so nothing
was exposed by defendant’s conduct, but defendant’s action
made her “scared” that he “was gonna touch” her “in my
private.” K. eventually disclosed that defendant had
touched her “privates” on a separate fairly recent
occasion. On a “really hot” day, D. and K. were sleeping on
their parents’ bed wearing only their underwear, and they
were awakened by defendant touching their private parts
under their underwear. K. felt defendant’s hand on her
private parts and saw him touching D.’s private parts also.
K. said L. had told her that defendant had touched her and
“my other sister, too.”
In her second interview, L. was asked if defendant “fought
with the police before?” She said “Um, yeah.” L. again
described her fight with defendant over the key during
which he touched her between her legs, “undid” her bra and
pulled up her shirt. She had quickly pulled her shirt back
down. L. insisted that this was the only time that
defendant had touched her, but she “was already scared of
him” because “he always stared at me and stuff. . . .” He
had looked at her once when she was in the bathroom and
another time when she was taking a shower. L. denied that
defendant had ever “made you have sex or nothing like that.”
L. reiterated that she had told her mom about the key
incident, and her mother had cried. L. had not seen
defendant touch her sisters, but they had told her that he
had touched them two or three times. K. had told L. that
defendant had tried to kiss D. and had touched both her and
D. between their legs under their pants.
After the girls had been interviewed twice, the police told
the girls’ parents[fn1] that the girls were alleging that
defendant had inappropriately touched them, and the police
said that they wanted to talk to defendant the next
morning. The next morning, defendant voluntarily came to
the police station with his parents and said that he wanted
to “clear the matter up.”
During his police interview, defendant admitted L’s
accusations, although he claimed that the touchings had
occurred accidentally during their fight. He also admitted
that he had twice touched K.’s crotch over her clothing.
According to defendant, these two events had occurred six
months apart several years earlier. Finally, defendant
admitted that he had touched K.’s vagina under her
underwear the previous summer. He said he left his hand on
K.’s vagina, under her panties, for three or four minutes.
Defendant denied ever touching D. Defendant wrote a letter
of apology to K. asking her “to excuse me for touching your
intimate or private parts.” He wrote a similar letter to L.
asking her to excuse him “if some day I touched your
intimate (private) parts” and saying he was “sorry for the
day I pulled your blouse when I was playing with you.”
On July 17, 2004, social worker Sylvia Roque interviewed
the three girls and their mother. The mother told Roque
that L. had told her that defendant had touched her vaginal
area over her clothes while the two were “roughhousing.” L.
told Roque that she had told her mother about defendant
touching her, but her mother had done nothing about it. L.
said that defendant had touched her vaginal area over her
clothes “while they were roughhousing.” L. said nothing
about defendant pulling up her shirt. L. also said that K.
had told her that defendant had touched K. D. told Roque
that defendant had pulled down K.’s pants. K. told Roque
that defendant had touched D.’s vaginal area over her
clothing.
In August 2004, L. told Rosalie Correa that defendant had
“touched her sisters inappropriately, and a lot of bad
things happened,” but L. did not “elaborate.” L. did tell
Rosalie Correa that defendant had been “touching” D. “since
she was 4 years old.” L. told Rosalie Correa that she
“would be in trouble” if she told the truth. L. said her
mother had told her that “she better deny that these things
happened, otherwise they would go back again to a foster
home and be taken out of their home.” L. also said her
mother had told her that her brother would go to prison and
“bad things would happen to him there” if he was convicted.
L.’s mother had also told her that her accusations against
defendant were responsible for the family’s lack of money
and the mother’s loss of her job.
In September 2004, D. told Gabriella Nielsen, her
therapist, that defendant had touched and caressed the
front of her genitals. In October 2004, D. told Nielsen, in
D.’s mother’s presence, that defendant had pulled down D.’s
pants and touched D.’s private parts with his penis. D.
also said that defendant had put his penis in K.’s mouth
while they were under a fig tree in the backyard.
In September 2004, L., looking “very, very, very sad and
confused,” told Sandoval that L. “was going to have to lie
to the police” because “her mother was pressuring her to
lie.” L. said her mother “wanted them to say that it didn’t
happen.” L. explained that her mother was afraid that
defendant would go to prison and “be hurt very bad” and that
the children would be removed from their home. L.’s mother
also had told L. that, if the molestation allegations were
true, she would kill defendant and herself.
In October 2004, L. asked Sandoval to tell “the people”
that Sandoval was lying. Sandoval “got angry” and refused,
and L. seemed “relieved.”
II. Procedural Background
Defendant was originally charged by information with two
counts of continuous sexual abuse of a child (Pen. Code,
§ 288.5), one count of assault with intent to commit
a sex offense (Pen. Code, § 220), five counts of
lewd conduct on a child (Pen. Code, § 288, subd.
(a)), two counts of attempted lewd conduct on a child (Pen.
Code, §§ 288, subd. (a), 664) and two counts
of forcible lewd conduct on a child (Pen. Code, §
288, subd. (b)(1)). It was specially alleged that he had
committed acts against more than one victim. (Pen. Code,
§ 1203.066, subd. (a)(7).)
Defendant was represented by a retained attorney throughout
the trial court proceedings. Defendant’s first jury trial
in February 2005 resulted in a mistrial after one juror
held out for not guilty on all counts. The information was
then amended to replace the assault with intent to commit a
sex offense and attempted lewd conduct counts with lewd
conduct counts, so that the information charged eight counts
of lewd conduct, two counts of forcible lewd conduct and
two counts of continuous sexual abuse. The continuous
sexual abuse counts charged defendant with abusing K. and
D. between July 1, 2002 and July 15, 2004. The eight lewd
conduct counts charged defendant with individual acts of
lewd conduct against K. and D. during this same period. The
individual lewd conduct counts against K. and D. were
alternatives to the continuous sexual abuse counts. The
forcible lewd conduct counts charged defendant with
offenses against L. The prosecution sought convictions on
the continuous sexual abuse counts and on the forcible lewd
conduct counts.
Defendant was retried in May 2005. D. testified at trial
that defendant had never touched her private parts. She
said she had lied about this to the police, Nielsen and
others, but she was unable to explain why she had lied. She
did affirm that she had “changed [her] story to help”
defendant. D. said she was “sad” that defendant was not
living at home anymore.
K. testified at trial that defendant had never touched her
private parts, bottom or chest and that she had never seen
him touch her sisters in any of those places. K. said she
had told Sandoval that defendant had touched her because
she wanted defendant to leave their home. K. said that L.
had told her to tell Sandoval that defendant had touched
her. K. testified that she had told a police officer that
defendant had touched her and D., but “it wasn’t true, I
just made it up.” She said she lied to the police officer
because she was “mad” at defendant for throwing away some
of her toys. K. was sad that defendant was not living at
home anymore, and she thought it was her fault because she
had lied to the police.
L. testified at trial that, although she got along well
with defendant, “we’d fight a lot.” Defendant “used to make
me mad” when he teased her and made fun of her. Defendant
had never touched her breasts or vagina, and she had never
seen him touch D. or K. Nevertheless, L. initially falsely
told David and Rosalie Correa and Sandoval that defendant
had touched her vagina. L. testified that, at the beginning
of July 2004, she told K. and D. to tell someone that
defendant had touched their vaginas or else she would spank
them. L. lied and told K. and D. to lie “`cause I was mad,
`cause my mom treated him differently than me.” L. was
“jealous” of defendant because their mother “gave him money
and stuff and she didn’t give me” and “he would go out with
his friends and I couldn’t.”
Defendant’s 19-year-old sister N. testified for the defense
at trial. She asserted that she had been present at the
time of the two alleged touchings of L. by defendant, and
these events had occurred when L. and defendant were “play
fighting.” N. testified that L. got mad at defendant
because their mother gave him “special treatment,” and L.
wanted defendant to move out of the house and go back to
Mexico. On cross-examination, N. testified that during her
fights with defendant he would sometimes touch her crotch
area “accidental[ly].” N. admitted that she had accused her
father of sexually molesting her, and she claimed that she
had told L. that this molestation accusation was false. N.
said she had made the false accusation against her father
because he “was not responsible” when she and defendant
were living with him in Mexico and he “used to hit us at
times.”
Defendant’s mother testified for the defense at trial that
she had falsely told defendant and L. that she had
installed hidden cameras in the house so that she would
know if they were fighting. She denied that she had ever
told any of the children to lie.
Defendant testified on his own behalf at trial. He denied
ever touching L.’s crotch or lifting up her shirt.
Defendant said he had made false admissions to the police
because “I thought, if I say what the girls were saying,
then they would let them come back home, and so I tried to
tell the story more or less the way L[.] had.” Defendant
asserted that he had “made . . . up” his statements about
having touched K. in hopes that his family could be
reunited. “I thought that if I told that story, maybe that
would be enough so that the girls could come back.”
Defendant denied ever having inappropriately touched L., K.
or D. He admitted that he had fought with L., but he
claimed that he stopped fighting with her “[w]hen I heard
that, I think, they had installed cameras in the house.”
The jury deliberated for about a day and a half. It
returned guilty verdicts on the continuous sexual abuse
counts against K. and D. and the two forcible lewd conduct
counts against L., and it found true the allegation that
defendant had committed lewd acts against more than one
victim. The jury acquitted defendant of the individual lewd
conduct counts “pursuant to the court’s instructions that
they were in the alternative.” The trial court committed
defendant to state prison for a term of 30 years. Defendant
filed a timely notice of appeal.
III. Discussion
A. Standard of Review
Defendant contends on appeal that his trial counsel was
ineffective. “Defendant has the burden of proving
ineffective assistance of counsel. [Citation.] To prevail
on a claim of ineffective assistance of counsel, a
defendant must establish not only deficient performance,
i.e., representation below an objective standard of
reasonableness, but also resultant prejudice. [Citation.] A
court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable
professional assistance. . . . Moreover, prejudice must be
affirmatively proved; the record must demonstrate 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. [Citation.]” (People v. Maury (2003) 30 Cal.4th
342, 389, internal quotation marks omitted.)
B. Trial Counsel’s Failure to Seek Exclusion of
Defendant’s Statement
Defendant contends that his trial counsel was prejudicially
deficient in failing to seek exclusion of his statement to
the police on the ground that it was the product of
coercion. He claims that the police officers who
interviewed him used a combination of threats and promises
to coerce an involuntary confession from him. Since the
Attorney General concedes the admission of this statement
was prejudicial, the sole question is whether the statement
would have been excluded if defendant’s trial counsel had
interposed an objection to its admission.
“It long has been held that the due process clause of the
Fourteenth Amendment to the United States Constitution makes
inadmissible any involuntary statement obtained by a law
enforcement officer from a criminal suspect by coercion.
[Citations.] A statement is involuntary [citation] when,
among other circumstances, it was extracted by any sort of
threats . . ., [or] obtained by any direct or implied
promises, however slight . . . [Citations.] Voluntariness
does not turn on any one fact, no matter how apparently
significant, but rather on the `totality of [the]
circumstances.'” (People v. Neal (2003) 31 Cal.4th 63, 79.)
“Promises and threats traditionally have been recognized as
corrosive of voluntariness.” (People v. Neal, supra, 31
Cal.4th 63, 84.) “In general, any promise made by an
officer or person in authority, express or implied, of
leniency or advantage to the accused, if it is a motivating
cause of the confession, is sufficient to invalidate the
confession and to make it involuntary and inadmissible as a
matter of law. [Citations.] In identifying the
circumstances under which this rule applies, we have made
clear that investigating officers are not precluded from
discussing any `advantage’ or other consequence that will
`naturally accrue’ in the event the accused speaks
truthfully about the crime. [Citation.] The courts have
prohibited only those psychological ploys which, under all
the circumstances, are so coercive that they tend to
produce a statement that is both involuntary and
unreliable.” (People v. Ray (1996) 13 Cal.4th 313, 339-340,
internal quotation marks omitted.)
“In determining whether a defendant’s will was overborne in
a particular case, the Court has assessed the totality of
all the surrounding circumstances — both the
characteristics of the accused and the details of the
interrogation. Some of the factors taken into account have
included the youth of the accused, his lack of education, or
his low intelligence, the lack of any advice to the accused
of his constitutional rights, the length of detention, the
repeated and prolonged nature of the questioning, and the
use of physical punishment such as the deprivation of food
or sleep.” (Schneckloth v. Bustamonte (1973) 412 U.S. 218,
226, citations omitted.)
“A finding of coercive police activity is a prerequisite to
a finding that a confession was involuntary under the
federal and state Constitutions. [Citations.] A confession
may be found involuntary if extracted by threats or
violence, obtained by direct or implied promises, or
secured by the exertion of improper influence. [Citation.]
Although coercive police activity is a necessary predicate
to establish an involuntary confession, it `does not itself
compel a finding that a resulting confession is
involuntary.’ [Citation.] The statement and the inducement
must be causally linked.” (People v. Maury (2003) 30
Cal.4th 342, 404.)
“The line to be drawn between permissible police conduct
and conduct deemed to induce or to tend to induce an
involuntary statement does not depend upon the bare
language of inducement but rather upon the nature of the
benefit to be derived by a defendant if he speaks the truth,
as represented by the police. Thus, `advice or exhortation
by a police officer to an accused to “tell the truth” or
that “it would be better to tell the truth” unaccompanied
by either a threat or a promise, does not render a
subsequent confession involuntary.’ . . . . [¶] When
the benefit pointed out by the police to a suspect is
merely that which flows naturally from a truthful and
honest course of conduct, we can perceive nothing improper
in such police activity. On the other hand, if in addition
to the foregoing benefit, or in the place thereof, the
defendant is given to understand that he might reasonably
expect benefits in the nature of more lenient treatment at
the hands of the police, prosecution or court in
consideration of making a statement, even a truthful one,
such motivation is deemed to render the statement
involuntary and inadmissible. The offer or promise of such
benefit need not be expressed, but may be implied from
equivocal language not otherwise made clear.” (People v.
Hill (1967) 66 Cal.2d 536, 549.)
1. Background
After L., K. and D. reported on the evening of July 15,
2004 that they had been sexually molested by defendant,
they were taken into protective custody and placed in a
shelter because defendant resided in the same residence
with them. The police told the parents that the girls were
alleging that defendant had inappropriately touched them and
said they wanted to talk to defendant the next morning.
The next morning, defendant came to the police station with
his parents for an interview. Defendant had been aware for
months that his sisters “were complaining about [him]
touching them.” Defendant, who was 20 years old and had no
criminal history, “said he wanted to clear the matter up”
and willingly agreed to talk to Detective Robert Dillon and
Detective Adam Tovar about the allegations. Defendant was
not restrained in any way, and the interview took place in
an unlocked room. The detectives were not wearing uniforms.
During the two-and-a-half-hour interview, they did not yell
at or threaten defendant. Dillon and Tovar never told
defendant “that the kids wouldn’t go home, unless he
confessed.”
At the commencement of the interview, Dillon told defendant
that he was “not under arrest ” and was “free to leave at
any time.” “[Y]ou’re not required to talk to us. Uh, but
I’m sure you have questions, and I have questions. And we
wanna, we wanna talk about this.” Defendant affirmed that
he wanted to talk to the officers because “I came to clean
up this thing.” Dillon reiterated that “you’re not required
to come in here and do this.” “And like I said, it’s all
about how honest you are with me, how much we can resolve
today.” “[D]on’t be overly concerned that I’m tryin’ to get
you in trouble or get somebody else in trouble. That’s not
it.” Later, Dillon repeated “you’re not under arrest, and
you can, you can walk out right now.”
Defendant told Dillon and Tovar that D. was stubborn and
wouldn’t listen to him, but K. listened to him. L. was
quiet and “don’t talk to like nobody.” At first he said
that he and L. did not fight at all but occasionally called
each other names in a joking manner. But he almost
immediately admitted that he had been in fights with L. and
that she had hit him two or three months earlier when he
was trying to help their little brother. During another
argument, he had pounded on L.’s bedroom door. He had then
gone to the window and accidentally broken it with his
fist. This incident had occurred five months before the
interview, and it was triggered by D. and K. making a mess
and then running into L.’s room and locking the door.
Dillon told defendant “I can’t send them [defendant’s
younger sisters] back in the house unless I know the
truth.” “[I]f we can’t talk and get the truth out, then we
can’t do anything about your brother and sister. Okay? All
right, `cause they’re sayin’ that they’re gettin’ smacked
and hit and stuff like that.” Defendant admitted that he
had “hit her [D.] in the head” and “push[ed] her,” but had
stopped doing so a couple of months earlier. He also
admitted that he had slapped his other sisters, including
L., up until a couple of months earlier. Defendant said
that his sister N. had falsely accused their father of
“touching her parts and stuff.” Defendant denied that he
had ever touched his sisters’ “parts.”
Defendant described another incident when he and his
younger siblings were “playing” in their mother’s room, and
he picked up L. and threw her on the bed. Defendant also
recalled an incident that had begun with him taking L.’s
keys and had ended with him grabbing L.’s shirt. Dillon
accused defendant of “skippin’ things” in his account of
this incident. “I know what happened. Okay? If you wanna
get through here, with any amount of, any amount of dignity
and respect, and without gettin’ yourself in a lot of B.S.,
`cause that’s what’s happening. You’re diggin’ yourself a
grave. You’re, you’re getting’ [sic] yourself into trouble
by lying now. Okay? You lie, you’re gonna get yourself in
trouble. I already know what happened. Your sister told me.
. . . All right, but if you start lying to me, this is
done. I’m not gonna talk to you, I’m just gonna write a
report. And then they’ll arrest you later.”
Defendant then admitted “pulling [L.’s] shirt up.” Dillon
said: “Are you gonna get in trouble for this? I don’t know.
That’s not my place to say. But if you’re gonna lie. . . .”
He told defendant that L. had been upset because defendant
had exposed her breasts. Defendant said L. was lying. But
then he admitted that L.’s bra had been exposed.
Dillon and Tovar encouraged defendant to tell the truth and
reiterated that “[i]f you tell lies it will be worse in
this case.” Defendant insisted that it was “an accident”
that L.’s shirt was pulled up and her bra was exposed.
Dillon and Tovar asked him why L. had said he had unsnapped
her bra. Defendant conceded that this might have happened.
And then he admitted that he had seen part of L.’s breasts.
But he continued to insist that they had been “playing” and
his actions had been accidental. Dillon and Tovar told him
that L. had said he had put his hand on her vagina.
Although he initially insisted that this was not true, he
conceded that it was possible that it could have happened
accidentally when he was wrestling with L.
Defendant denied ever having touched the private parts of
D. or K. He suggested that “[m]aybe L[.], L[.]’s telling
them to say that. . . .” After Dillon and Tovar described
what D. and K. had said, defendant said: “Maybe that, the
L[.] is true, but my little sisters? I didn’t know about
that.” Defendant told the officers that D. had falsely told
their mother that he was “kissing” K. Dillon and Tovar
suggested that defendant was “scared.” He insisted that he
was not. “No, I’m not scared.” “I’m not even like nervous.”
They continued to urge him to tell the truth. “We know the
truth, we know what happened; we just want you to tell us,
and you’re gonna feel better about it.” “[T]hey’re not
lying. They’re telling the truth. And if you want your
family back together, you’re the key to the whole thing,
okay? It’s on you.” “Make it right, make it better for
them. I’m not telling you to lie and make something up; I
wanna know the truth about what happened. The truth is the
only thing that’s gonna fix all this, and keep your family
together as a unit. That’s the only thing that’s gonna keep
your family together.”
Defendant insisted that he was telling the truth. He said
“[m]aybe” he had touched L. accidentally, but he had never
touched D.’s or K’s private parts. Dillon and Tovar then
described an incident that they said D. and K. had told
them about during which defendant had touched their private
parts. Defendant insisted that this had never occurred.
Dillon said: “Okay, would you rather tell us right now about
what happened, or do you wanna wait `til we go, if, if we
have to go to, after he does his report, then we go to uh,
do you like going to court?” “[W]ould you rather tell us
here what happened, or would you rather go to court and let
them listen to your sisters tell the judge. . . .”
Defendant said “[t]ell the truth here.” Dillon and Tovar
continued this line of persuasion. “[W]e’re trying to get
you to tell us here, rather than going to court, and then
your sisters tell you, say this in front of strangers, the
judge, other people there in court.” “[Y]ou can tell us
here, so that your poor sisters don’t have to go through
that, and you don’t have to go through it either, be
embarrassed about it.”
Defendant continued to insist that he had never touched the
private parts of D. or K. He suggested that D. and K. were
making this up because they did not like him and wanted him
to go back to Mexico. Defendant said that D. and K. used to
watch “those movies, porno movie[s]” on cable, and he
claimed that they might be basing their accusations on
those movies. He then suggested that D. and K. were making
false accusations against him because L. was mad at him.
When Dillon and Tovar suggested that L. might be mad at him
because he pulled her shirt up and put his “hand on, over
her private,” defendant said “[m]aybe that’s why.” Yet he
continued to insist that he had not touched the private
parts of his sisters. “I don’t wanna go to court. But
that’s not true.” Defendant denied touching L.’s private
parts, though he conceded that he had touched her thigh.
Tovar said: “We’re trying to help you; we’re not trying to,
to get you in trouble.” “I would rather you tell us right
now” about K. “than have to go to court and have her
— how would you feel having her say that in front of
other people, the judge, and, and, and all that, and you’re
there?” Defendant said “I will feel bad.” He continued to
insist that he had never touched D. or K. except to spank
them on the “butt.” “[T]he truth is that I never touched
them like on the front part; just on the butt” while
“[s]panking.” Dillon and Tovar continued to press him.
“We’re trying to make you tell us now, than to go over there
in front of the judges and uh, strangers, and, and have
your sisters tell them what you did, that you touched their
front part one time.” “[I]f it was one time, that’s cool,
that’s good. If it’s more than one time, a bunch of times,
that’s bad. . . . All we wanna do is get your family back
together, but you gotta tell us. . . . [W]e’re not gonna
make you say things that aren’t true, but then we can’t
help you anymore” Defendant continued to deny touching D.
or K.
Dillon said “But if that’s what you wanna do, then we’ll
just write up what they said and take it over to the D.A.
and let them, let them deal with it in court.” Tovar said
“I can’t help you any more.” Dillon then said: “We can’t,
we can’t write up, you know, we can’t write up what you’re
saying; if you wanna tell us the truth about what happened,
we can write it up for you.” Defendant replied: “And how
long she [D.] say that it was that, what was that?” Dillon
and Tovar told him that D. had said it was a single
occasion when defendant had placed his hand on her vagina
inside her underpants. Defendant again said that it was not
true. Yet he said that four and a half years earlier he had
been playing with K. in their mother’s room and “asked her
where are the little testicles like this . . . [b]ut I
didn’t touch her . . . it was on top.”
Defendant then admitted that he had touched K.’s vagina
over her clothing. He insisted that only K. had been
present and that the event had occurred four years earlier.
As he described it, K. was sleeping in an upstairs bedroom
in the afternoon, and he came into the room to watch a show
on the television in that room. Defendant lay down on the
bed and watched television while K. slept. While he watched
television, he touched K.’s vagina over her panties.
Defendant claimed that this event and the “little
testicles” one were the only times he touched K.’s private
parts.
Tovar told defendant that K. said he had touched her under
her panties. Defendant said: “I’m trying to recall so I can
say if I did it. If I did it I want to say how it was that
I did it so I can say it because I don’t want to go to
court.” He continued to deny that he had touched K. under
her panties. Tovar said: “She’s going to go to the court
and she’s going to explain . . . she’s going to testify
that, that you put your hand under her panties.”
Defendant then described a third incident involving K. that
had occurred in the last year during the summertime. D., K.
and their little brother were sleeping on the floor in a
bedroom at around noon. “I went and laid down next to [K.]
and I did put my hand . . . I put my hand like this.
Touched her here. . . .” He left his hand on K.’s vagina,
under her panties, for three or four minutes.
Dillon asked defendant to write a letter of apology to his
sisters “expressing what was on his heart.” Dillon and
Tovar did not tell defendant what to say in the letters.
Defendant wrote letters to L. and K. In the letter to K.,
defendant asked her “to excuse me for touching your
intimate or private parts.” The letter to L. asked her to
excuse defendant “if some day I touched your intimate
(private) parts” and said he was “sorry for the day I
pulled your blouse when I was playing with you.”
2. Analysis
Defendant claims that Dillon and Tovar coerced his
statements by promising that admissions would help him and
his family by reuniting them and allowing them to avoid
going to court. The totality of the circumstances does not
support defendant’s claim that his statements were coerced.
Nothing that Dillon or Tovar said about the potential for
reunification of defendant’s family went beyond what could
be expected to naturally follow from the circumstances.
With defendant’s younger sisters alleging that they had
been sexually molested by him, his sisters obviously could
not be permitted to return to the household they shared
with defendant until the truth of their allegations was
resolved. Dillon and Tovar did not offer defendant any
leniency or other advantage in return for his statement.
Early on, they told defendant that his sisters would not be
returning to the family home until “the truth” was known.
There was no impropriety in this statement because it
merely noted the natural consequences of the allegations.
By the time the subject of the reunification of defendant’s
family came up again, defendant had already admitted
touching L. Dillon and Tovar did not improperly coerce a
statement by urging defendant to tell the truth in order to
facilitate the reunification of his family, since this was
something that would naturally spring from truthful
disclosures. When Dillon and Tovar suggested that defendant
would prefer to “tell us here what happened . . . rather
[than] go to court and . . . listen to your sisters tell
the judge” in front of other people, defendant acknowledged
that he did not wish to go to court and would “feel bad” if
that occurred, but he maintained that he was telling the
truth and had not touched D. or K. Again, Dillon and Tovar
did not offer defendant leniency or threaten him by
suggesting that he could avoid having his sisters testify
in court by confessing. Defendant could have admitted the
allegations and pleaded guilty, and his sisters would then
have avoided testifying in court about his molestations of
them. When Dillon and Tovar told defendant they wanted to
“help” him rather than “get you in trouble” and suggested
that his admission to a single touching of K. would help to
“get your family back together,” they made no promises or
threats but simply utilized a permissible ruse in order to
make defendant more comfortable admitting his guilt.
Finally, the expression of frustration that Dillon and
Tovar conveyed to defendant when he maintained his denial
was neither a promise nor a threat. Their statement that
they would “just write up what they said and take it over
to the D.A. and let them, let them deal with it in court”
and that they “can’t help you any more” was another
statement of fact. If defendant continued to deny the
allegations, the matter would proceed through the judicial
system.
Dillon and Tovar never suggested, and defendant could not
have reasonably believed, that he would be permitted to
rejoin his family if only he admitted molesting his
sisters. Since the allegations by his sisters were the
basis for the separation of his family, Dillon and Tovar
were not precluded from truthfully representing that family
reunification depended on the resolution of these
allegations. Nor were such representations likely to
produce an unreliable and involuntary statement. (People v.
Ray, supra, 13 Cal.4th 313, 339-340.) The statements by
Dillon and Tovar regarding going to court did not suggest
that defendant was being offered leniency of any kind in
return for his statements. The necessity of his sisters
being required to testify in court could have been avoided
had he admitted their allegations and pleaded guilty to
charges based on those allegations. While defendant did end
up having to go to court because he continued to deny
touching D. and disavowed his admissions, the statements by
Dillon and Tovar were not thereby rendered false.
None of the other circumstances of the interview were
unduly coercive. It was made unmistakably clear to
defendant that he could terminate the interview and leave
at any time. Dillon and Tovar were not even wearing
uniforms, and the interview was not particularly prolonged.
Because the totality of the circumstances demonstrated that
defendant’s statements were not coerced, his trial counsel
was not deficient in failing to seek the exclusion of those
statements.
C. Trial Counsel’s Failure to Make Evidentiary Objections
1. “Red Stain” Evidence
Defendant claims that his trial counsel was prejudicially
deficient in failing to object to the admission of evidence
that L. had a “red stain” on her clothing after spending
the night in defendant’s bedroom.
a. Background
In February 2004, L. told Rosalie Correa that her brother
had “crawled into bed with her” the previous week but
“nothing happened.” In March 2004, L. told Sandoval that
defendant “tried to get in bed with her.”
In her initial statement to the police, K. made statements
about defendant drinking and L. sleeping with defendant.
“And then my sister, L[.], mm, mm, it, it was because he
drinks. Because umm, I don’t know why, he drinks, and then
my sister, she, she umm, slept with him, she sleep with
him, and-” K. said that L. had spent the whole night in
defendant’s bedroom with him. K. recounted that L.’s “shirt
. . . it was uh, all red. And she had a red pants, I think
umm, she had, I don’t know, but it was all ho-, red over
here, her shirt that she has right now.” “It was all red,
like-” When asked “Red who, red from what,” K. said “I
don’t know, I think it was for the pants that she put
something, and then she was like sleeping in her pants, I
think.” The officer said “Somethin’ spilled?” K. responded
“I think, I don’t know, I’m not sure.” K. confirmed that
L.’s shirt was “stained.”
When L. was initially interviewed by the police, she
described an occasion on which she had consumed six beers,
and defendant had convinced her to spend the night in his
bed. She said she had spent the whole night in defendant’s
bed, but he had not touched her at all that night though he
slept in the same bed. Both of them had slept fully
clothed. L. denied that defendant had ever touched her under
her clothing. During her second police interview, L. denied
that defendant had ever “made you have sex or nothing like
that.”
All of the interviews of L., K., and D. were recorded and
played for the jury at trial. Defendant’s trial counsel
made no objection to the admission of any portion of the
statements above. K. testified at trial that she had lied
when she told the police that she had seen L. coming out of
defendant’s room with a red stain on her shirt and pants
after spending the night there.
The prosecutor argued this evidence to the jury. “On one
account she’s describing she drank six beers with the
defendant. [¶] Not a big deal for teenagers to be
drinking, we all did it, but if they’re drinking like that
alone in his bedroom or her bedroom and just the two of
them and she passes out and falls asleep and says nothing
really happened, I submit to you, she’s probably
minimizing. [¶] Something happened when she was
drunk, doesn’t remember, or she doesn’t want to talk about
it, something happened, and we know that something might
have happened, because we hear K[.] describing a rather odd
circumstance during her interview with Officer Torres, K[.]
sees L[.] coming out of the defendant’s room one morning
with a red stain on her pants and a red stain on her shirt.
[¶] There’s no suggestion from L[.] or from K[.]
that K[.] is well versed in the ways of what might have
happen[ed] to a girl when she’s sexually penetrated for the
first time or for that matter, she has intercourse when
she’s on her period. [¶] K[.] is 9 years old.
[] We don’t have proof that there was intercourse on
that day, that’s why we haven’t charged it, but I submit to
you, ladies and gentlemen, there’s enough evidence out
there to lead you to believe that a whole lot more is going
on here, a whole lot more.” “K[.] talks about seeing L[.]
with blood on her shirt and on her pants . . . [¶] .
. . she mentioned seeing blood on the shirt and the shorts.
[¶] That’s not something the kid is going to make
up, a 9-year-old, because she doesn’t see it as anything
significant.” Defendant’s trial counsel interposed no
objections to these portions of the prosecutor’s arguments
to the jury.
b. Analysis
We will assume for the sake of argument that K.’s statement
about L.’s stained shirt would have been excluded if
defendant’s trial counsel had interposed a timely and
appropriate objection. The question then becomes whether
defendant has established that the admission of this
evidence was prejudicial. We think not.
K.’s statements were very difficult to parse. The only
clear thing that K. said was that she had seen a red stain
on L.’s shirt after L. spent the entire night in
defendant’s bedroom. K. did not say that L.’s pants were
stained but only that L. “had a red pants. . . .” It is
entirely unclear what this meant. Nor is it possible to make
any sense out of K.’s response to the “red from what”
question. K. said “I think it was for the pants that she
put something, and then she was like sleeping in her pants,
I think.” Since K.’s statement in this regard was brief and
substantially unintelligible, it would have had little
potential for prejudice had the prosecutor not highlighted
it in his argument to the jury.
The prosecutor’s argument turned the red stain that K. had
described seeing on L.’s shirt into a “red stain on her
pants and a red stain on her shirt” and then morphed the
evidence even further into “blood on her shirt and on her
pants.” The prosecutor also leapt from his revised version
of the red stain evidence to a conclusion that he admitted
he could not prove: that defendant had engaged in
intercourse with L. that night and that this was L.’s first
experience of intercourse or she had been on her period at
the time.
We have little doubt that the prosecutor’s argument was
intended to be inflammatory. Yet within the context of the
evidence and argument at trial, it is improbable that
rational jurors would have allowed their decisions on the
charged offenses, which did not include any allegations of
intercourse, to be influenced by this unsupported argument.
The potential for prejudice from the red stain evidence and
the prosecutor’s inflated argument was diminished because
there was other evidence of even more inflammatory
allegations that was properly before the jury. D. told her
therapist that defendant had pulled down her pants and
touched his penis to her private parts and that she had
seen defendant put his penis in K.’s mouth. D’s accusations
of attempted intercourse and oral copulation had far more
potential to prejudice defendant than K.’s ambiguous
testimony. The red stain evidence and the prosecutor’s
argument based on it pales in comparison to D.’s
accusations. In addition, we must take into account that
defendant admitted at least one unequivocal act of lewd
conduct. This admission rebutted his claim that he lacked
any sexual intent. Under these circumstances, we are
confident that the jurors would not have reached different
verdicts if only defendant’s trial counsel had secured the
exclusion of the red stain evidence that provided the seed
for the prosecutor’s argument. Defendant has failed to
satisfy his burden of proving prejudice.
2. Evidence That Defendant Used Drugs and Fought With The
Police
L. told the police that, when she told her mother about
defendant’s conduct, her mother cried and told her that
there were cameras in the house “[c]ause they were
watching” defendant “[c]ause they felt that he did drugs
and stuff.” The police asked L. if defendant “fought with
the police before?” She said “Um, yeah.” Defendant’s mother
testified at trial that she had falsely told defendant and
L. that she had installed hidden cameras in the house so
that she would know if they were fighting.
Defendant claims that his trial counsel was ineffective in
failing to secure the exclusion of evidence that he “did
drugs” and “fought with the police.” These extremely
fleeting bits of evidence had little potential for
prejudice on the charges before the jury. Nothing in the
trial evidence suggested that defendant’s alleged use of
drugs or his alleged interaction with the police played any
role in his lewd acts against his sisters.[fn2] Even if
defendant’s trial counsel could have obtained exclusion of
this evidence by objecting to it, it had no real potential
to influence the jury’s verdicts, so any deficiency was
non-prejudicial. Nor does the cumulative potential for
prejudice of this evidence and the red stain evidence
undermine our confidence in the jury’s verdicts; these
small bits of evidence were neither individually nor
cumulatively prejudicial.
3. Testimony About L.’s Statement About Defendant’s
Molestation of D.
The continuous sexual abuse count involving D. required
proof of “three or more acts of substantial sexual conduct”
“over a period of time, not less than three months in
duration.” (Pen. Code, § 288.5.) Because D.
testified at trial that defendant had not abused her and
D.’s statements to the police and others provided no
timeframe for her allegations of sexual abuse, the
prosecution had to resort to other sources of evidence to
prove that defendant’s abuse of D. had occurred over a
period of at least three months. Defendant asserts that his
trial counsel was prejudicially deficient in failing to
object to the admission of Rosalie Correa’s trial testimony
that L. had told her that defendant had been “touching” D.
“since she was 4 years old.” Defendant asserts that this
testimony would have been excluded if his trial counsel had
objected to its admission on personal knowledge grounds,
since L. consistently reported that she had never seen
defendant touch D. and did not learn of defendant’s abuse
of D. until the day that the girls reported the abuse to
Sandoval.
a. Background
D. told the police that defendant had kissed her once and,
on another occasion, tried to remove her clothing and touch
her private parts in his bedroom where she and K. had gone
to look at his fish. D. insisted that these were the only
two times he had touched her. D. provided no timeframe
whatsoever for these events.
K. told the police about a recent incident during which she
had seen defendant try to remove D.’s pants in their
mother’s bedroom. K. reported another incident when
defendant had abused both her and D. in his bedroom when
they came to look at his fish. K. also reported a third
incident that had occurred on a “really hot” day in their
mother’s bedroom. On this third occasion, K. had seen
defendant touching the private parts of both D. and K.
under their underwear.
L. told the police that she had only learned that day, July
15, 2004, that defendant was touching D. and K. D. told her
that defendant had recently touched D.’s private parts. L.
reported that she had never seen defendant touch either of
her sisters, but they had told her that he had touched them
two or three times.
In his statement to the police, defendant admitted touching
K. under her underwear during an incident in their mother’s
bedroom the previous summer. However, defendant adamantly
denied touching D. on that occasion or on any other
occasion.
Rosalie Correa testified at trial that L. told her
defendant had been “touching” D. “since she was 4 years
old,” and the prosecutor highlighted this testimony in his
argument to the jury. “There’s Rosie Correa’s testimony in
which L[.] said that the defendant has been molesting D[.]
since she was 4 years old. [¶] That’s pretty clear
that molestation has been going on for more than three
months as is required to convict under this count.”
b. Analysis
“[T]he testimony of a witness concerning a particular
matter is inadmissible unless he has personal knowledge of
the matter. Against the objection of a party, such personal
knowledge must be shown before the witness may testify
concerning the matter.” (Evid. Code, § 702, subd.
(a), italics added.) Defendant contends that the prosecution
would have been unable to demonstrate that L. had personal
knowledge of the timeframe of defendant’s abuse of D.
because L. had consistently and unequivocally stated that
she never saw any abuse of D. and did not learn of
defendant’s abuse of D. until the day the girls reported
the abuse to Sandoval and the police.
The Attorney General maintains that a personal knowledge
objection to Rosalie Correa’s testimony would have been
properly overruled because “Correa had personal knowledge
of L[.]’s statement.” He suggests that Evidence Code
section 702 does not require that a hearsay declarant have
personal knowledge so it was irrelevant that L. lacked
personal knowledge of defendant’s abuse of D.
While there is no question that Correa had personal
knowledge that L. had made the statement Correa recounted,
we disagree with the Attorney General’s suggestion that
L.’s hearsay declaration was admissible for its truth
notwithstanding L.’s lack of personal knowledge of the
truth of her statement. Although we have not been directed
to, nor have we discovered, any California cases addressing
this specific point, federal courts uniformly impose a
personal knowledge requirement on hearsay declarations and
at least one state court imposes the same requirement.
“Courts require that declarants of a hearsay statement have
firsthand knowledge before the hearsay statement is
admissible, however. [Citations.] The party offering a
statement has the burden of proving personal knowledge.”
(State v. Richardson (Minn. 2003) 670 N.W.2d 267, 282.) “In
a hearsay situation, the declarant is, of course, a
witness, and neither this rule [Federal Rules of Evidence,
rule 803] nor Rule 804 dispenses with the requirement of
firsthand knowledge.” (Advisory Comm. Notes to Federal
Rules of Evidence, rule 803; Bemis v. Edwards (9th Cir.
1995) 45 F.3d 1369, 1373.)
The rationale for requiring a hearsay declarant to have
personal knowledge when the declarant’s statement is
admitted for its truth is identical to the rationale for
requiring a witness to have personal knowledge of the
subject matter of the witness’s testimony. In the absence
of personal knowledge, a witness’s testimony or a
declarant’s statement is no better than rank hearsay or,
even worse, pure speculation. The admission of a hearsay
statement not based on personal knowledge puts the
factfinder in the position of determining the truth of a
statement without knowledge of its source and without any
means of evaluating the reliability of the source of the
information. We are convinced the personal knowledge
requirement applicable to witnesses is equally applicable
to hearsay declarants.
The Attorney General argues that “there is no doubt” that
the prosecutor would have been able to establish that L.
had the requisite personal knowledge. The record amply
rebuts this argument. L. has consistently and repeatedly
stated that she did not know that defendant had abused D.
until the day that the girls reported defendant’s abuse to
the police. Thus, L. clearly lacked personal knowledge of
when defendant’s abuse of D. occurred. Defendant has
established that a personal knowledge objection to Correa’s
testimony would have succeeded.[fn3]
The Attorney General’s suggestion that Correa’s testimony
was admissible for something other than the truth of the
matter is pointless. The prejudice that defendant claims is
from the admission of this testimony for its truth. Had it
not been admitted for its truth, the prosecutor could not
have relied upon it to satisfy the “not less than three
months in duration” element of the count charging defendant
with continuous sexual abuse of D. (Pen. Code, §
288.5.)
Finally, the Attorney General claims that defendant was not
prejudiced by his trial counsel’s failure to obtain
exclusion of this evidence. While there was some other
evidence from which the jury could have inferred that
defendant had been abusing D. for more than three months,
this evidence was far less compelling than Correa’s
testimony regarding L.’s statement. The exclusion of the
most compelling evidence to support an element of the
offense might well have opened the door to a reasonable
doubt about whether defendant’s abuse of D. lasted for
three months or more.
Consequently, we lack confidence that the jury would have
found defendant guilty of the continuous sexual abuse of D.
if defendant’s trial counsel had not failed to obtain
exclusion of this inadmissible evidence. Reversal of this
count is required.
IV. Disposition
The judgment is reversed and remanded for potential retrial
on the count alleging continuous sexual abuse of D. If the
prosecutor elects not to retry this count, the trial court
shall resentence defendant on the other counts.
WE CONCUR:
McAdams, J.
Duffy, J.
[fn1] Actually, these were the mother of defendant, K., L.
and D. and the father of K. and D. Defendant and L. share a
different father.
[fn2] Clearly, defendant’s trial counsel did not believe
that the mention of drugs was particularly prejudicial. At
the very end of his closing argument to the jury,
defendant’s trial counsel said: “Don’t feel pressured by
anybody else, because they feel that Mr. Valencia’s family
is bad, because his mother has eight kids and is sleeping
with a number of people, because his stepfather is a drug
addict and a drug dealer. [¶] Because you learned
about all these different things, this isn’t about them, it
isn’t about his family upbringing. [¶] This is about
what has been proved in this trial, and I think if you look
at everything in toto that there is not gonna be sufficient
evidence in which to convict Mr. Valencia.”
[fn3] Correa did not testify that L. said that D. had told
her that defendant had been abusing D. since D. was four
years old. We express no opinion on whether such testimony
would have been admissible over a hearsay objection.