People v. Havellana

THE PEOPLE, Plaintiff and Respondent, v. STEVEN SCOTTY HAVELLANA, Defendant and Appellant.

D077137

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

February 26, 2021

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. SCN385075)

APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed.

Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Steven Scotty Havellana of 19 sex offense counts, all committed against his two nieces, and the trial court sentenced him to 195 years to life in prison. On appeal, Havellana contends (1) his pretrial motion to suppress was erroneously denied and he was prejudiced by the admission at trial of statements he made to police; (2) three counts of sodomy are not supported by sufficient evidence of penetration; and (3) his sentence amounts to cruel and unusual punishment or an abuse of the trial court's discretion because it is more time than he can serve in a lifetime. We reject each of Havellana's contentions and affirm the judgment.

FACTS

A. Information

A second amended information charged Havellana with three counts of sodomy with E. (Pen. Code, § 288.7, subd. (a); counts 1-3),¹ three counts of forcible lewd act on a child, E. (§ 288, sub. (b)(1); counts 4-6), three counts of lewd act on a child, E. (§ 288, subd. (a); counts 7-9), four counts of oral copulation on a child 10 years or younger, J. (§ 288.7, subd. (b); counts 10-13), attempted sexual intercourse with a child aged 10 or younger, J. (§ 288.7, subd. (a), 664; counts 14-15), and four counts of lewd act on a child, J. (§ 288, subd. (a); counts 16-19). With respect to the forcible lewd act and lewd act charges (counts 4-9 and 16-19), it was further alleged that Havellana has been convicted in the present case of committing a sex offense against more than one victim (§ 667.61, subds. (b), (c), (e) [penalty of 15 years to life]), the crimes were committed against more than one victim (§ 1203.066, subd. (a)(7) [ineligibility for probation]), and he had substantial sexual conduct with victims under 14 years of age (§ 1203.066, subd. (a)(8) [ineligibility for probation]).

B. Trial

1. Mother

Mother testified her daughters are J., born in June 2002, and E., born in June 2004. She also has two sons, older than the girls. Mother's older sister (Aunt) had three sons with her first husband; her third son was close in age to J. Aunt divorced her first husband and in 2004 married Havellana.

Mother lived within a three-minute walk from Aunt and Havellana, and their children spent lots of time at both houses, including having frequent sleepovers. Mother testified that she worked nights so she could be with her children during the day, and when she worked nights her children would stay at Aunt's. Aunt was like a second mother to Mother's children. Aunt and Havellana divorced in 2014.

In 2017, E. disclosed to Mother that she had been molested by her "Uncle Scotty" and her cousin A. (Aunt's son and Havellana's stepson). E. did not want anyone else to know about the abuse but agreed to talk to a counselor. Shortly after, J. disclosed to Mother that she knew what E. was going through because it happened to her too. J. was crying hysterically when she told Mother, and then J. threw up.

2. E.

E., now age 15, testified her "Uncle Scotty" began touching her inappropriately when she was around seven years old. It happened so often over the years that "it was normal," she "kind of just assumed every time" she went to Aunt's house "that was going to happen."

At Aunt's house, E. typically slept on the couch, wearing a nightgown and underwear. Havellana would wake her while she was sleeping, and would sometimes "flip[]" her onto her stomach, and would "kind of like hover[]" over her, without fully putting his weight on her, but enough of hisweight that she, as "a weak little girl," could not get up. She testified he would touch her vagina with his hands. He would put his penis on her "butt." Sometimes he would put his penis in her "butt" and move it "like up and down." When asked to clarify, she agreed that, by "butt," she meant "the opening, the anus in [her] bottom, is . . . where he put it." She recalled having pain, both in her anus, but also in her back from his weight on her. She testified this happened "a lot" when she slept on the couch, but also once or twice when she was sleeping in Aunt's bedroom—"he put his penis in [her] anus."

E. testified Havellana never said anything to her while it was happening, and she would be quiet because she thought if he did not know she was awake, "it ma[d]e it a little better . . . because [she] just didn't want him to know." The next day, he would act "like nothing happened." She never talked about it and worried that if she did she might get in trouble. E. testified the sexual abuse happened consistently from when she was seven to 10 years old.

E. testified that she thought Havellana treated her and J. better than the other kids: he "would give [them] an extra cookie or something," but she felt he "kind of favored [her] sister."

E. testified that, at the same time these things were happening with her uncle, her cousin—who was older than her, but "not a grownup"—also touched her inappropriately; these things happened in the same time frame, but never at the same time. The incidents always occurred "one-on-one."

E. testified that it was difficult to talk about these things, she never wanted to discuss them, and she tried hard not to think about them.

E. did not understand what Havellana was doing to her until she had a sex education class in fifth grade. She was scared other people would knowwhat happened to her. She did not know that similar things were happening to J. until much later—soon before she disclosed the abuse to her mother—even though she and J. were "best friend[s]" who told each other "everything."

3. J.

J., now age 17, testified that she, her younger sister E., and their older brother frequently went to Aunt and "Scotty's" house and often spent the night. Aunt had a pool in the backyard and a pool table, and all the cousins would have fun hanging out and building forts in the living room. J. would typically sleep on the couch in the living room or in her cousins' bedroom.

J. testified that Havellana always treated her with "slight favoritism"—letting her have extra snacks, stay up late, or watch a movie that she "wasn't necessarily allowed to watch." She testified she knew he favored her because "[she] was his little slave," "sexually speaking" because she "performed the acts that he wanted [her] to do."

J. testified Havellana started touching her inappropriately when she was five years old. He would touch her vagina with his hands when she was in the bathtub. She said "he never like fully penetrated [her] during that period," but "it was . . . weird," and it was not how her mother or father would wash her in the bath, and even at age five, she felt that it "wasn't normal." The inappropriate behavior continued until she was somewhere around 10 years old, when she started going through puberty. J. testified it happened every time she went to his home for a sleepover.

When J. was six or seven, Havellana would put his penis to her vagina. Sometimes it would happen in her cousins' room and sometimes he would carry her from her cousins' room to another place—his room, the living room, the garage (which had a bedroom built in), or the pool table. Most of the time it happened in the living room or his bedroom. He would position her body indifferent positions: sometimes "laying on [her] stomach towards the edge of the bed," or "on [her] back," or "on [her] side." He would "just rub [his penis] around, like he would with his hands, like on the outside. And then there was a couple of times where he would like try to put it in." She said she could feel pain when he tried to do this. He would rub his penis inside of the labia and touch her clitoris with his penis.

J. specifically recalled one incident when she was in her cousin's bed, lying on her stomach and he was behind her, and he ejaculated on her back. She testified at that time she "had no idea what it was."

J. specifically recalled another incident when Havellana "had [her] put [her] hand on his penis and move it up and down and then he ejaculated." She testified he put his hand on top of hers and "kind of direct[ed] [her] as to what [she] needed to do."

J. testified Havellana also "would just push [her] head down to [his penis] and . . . just put [her] mouth on it." This happened "more than one time" and occurred when she was seven or eight years old. He also put his mouth on her vagina.

J. testified the abuse occurred in a progression: first, Havellana put his fingers on her vagina in the bathtub, later he "put[] [her] vagina to his mouth," and then he put his penis to her vagina. She also frequently observed him touching his penis with his hand.

J. recalled watching a video in second or third grade about sexual assault, and she realized that was her "normalcy" and her "everyday life."

J. recalled one night, Havellana came into her cousins' room but did not pick her up; instead he picked up her sister E. She testified, "I watched Scotty grab her, and I knew it happened to me, so I knew it was going to happen to her." She did not talk about it with E. at the time.

J. testified Havellana never discussed...