People v. Rodas

THE PEOPLE, Plaintiff and Respondent, v. MARIO ROBERTO RODAS, Defendant and Appellant.

C090919

California Court of Appeals, Third District, Yolo

August 31, 2021

NOT TO BE PUBLISHED

Order Filed Date 9/23/2021

Super Ct. No. CRF2019559

ORDER DENYING PETITION FOR REHEARING AND MODIFYING OPINION

THE COURT:

Appellant filed a petition for rehearing with this court. It is ordered that the nonpublished opinion filed herein on August 31 2021, be modified as follows:

1. At page 3, modify the first sentence of the first full paragraph that begins with “We conclude” so that it reads in its entirety:

We conclude the court erred in imposing consecutive sentences for both counts 2 and 3 under section 654.

2. At page 31, in the second paragraph, modify the second sentence that begins with “However, a review” so that it reads in its entirety:

A review of the record demonstrates the jury based its conviction on the sodomy, thereby foreclosing the trial court from relying on a different set of facts in applying section 654.

3. At page 32, in the first partial paragraph, delete the last two sentences of the paragraph and replace them with:

Rather the jury must have based count 2 on the rape. Thus, the court erred in imposing consecutive sentences on both counts 2 and 3. Nonetheless, in light of our conclusion that the court also erred in imposing a One Strike sentence on count 3, on remand the court should stay count 3 under section 654 as the shorter sentence.

4. At page 34, in the second sentence of the Disposition, replace “count 2” with “count 3” so the sentence reads:

On resentencing, the sentence on count 3 shall be stayed and the trial court may not impose One Strike sentences on counts 3 8, 9, 10, 12, 13, 14, or 15 under section 667.61.

This modification results in a change in judgment. Appellant's petition for rehearing is denied.

RENNER, J.

A jury convicted defendant Mario Roberto Rodas of forcible rape of a child under the age of 14 (Pen. Code, §§ 261, subd. (a)(2), 264, subd. (c)(1)^[1]-count 1); a lewd and lascivious act on a child under the age of 14 by force or violence (§ 288, subd. (b)(1)-count 2); sodomy of a child under the age of 14 and more than 10 years younger than him (§ 286, subd. (c)(1)-count 3); sexual intercourse with a child 10 years old or younger (§ 288.7, subd. (a)-count 4); sodomy with a child 10 years old or younger (§ 288.7, subd. (a)-count 5); aggravated kidnapping (§ 209, subd. (b)(1)-count 6); criminal threats (§ 422, subd. (a)-count 7); and seven counts of a lewd and lascivious act on a child under the age of 14 (§ 288, subd. (a)-counts 8, 9, 10, 12, 13, 14, and 15).^[2] The first nine counts pertained to one of defendant's daughters. The remaining convictions were for earlier lewd and lascivious acts on an older daughter, her brother, and a relative of his younger daughter. The jury found true as to counts 1 through 3 that defendant used a deadly weapon in the commission of the offense (§ 12022.3, subd. (a)), defendant kidnapped the victim and the movement of the victim substantially increased the risk of harm (§ 667.61, subds. (e)(1) [kidnapping], (d)(2) [aggravated kidnapping]), defendant personally used a dangerous or deadly weapon in the commission of the offense (§ 667.61, subd. (e)(3)), and the victim was under the age of 14 (§ 667.61, subd. (j)(1)). As to counts 2 and 3, the jury found true that defendant personally inflicted bodily harm. (§ 667.61, subd. (d)(7).) As to counts 4 through 7, the jury found true that defendant personally used a deadly weapon. (§ 12022, subd. (b)(1).) The jury also found true a multiple victim allegation under section 667.61, subdivision (e)(4) that we will discuss in further detail below.

The trial court sentenced defendant to three consecutive sentences of life without the possibility of parole (counts 1 through 3), seven consecutive terms of 15 years to life (counts 8, 9, 10, 12, 13, 14, and 15), and a determinate term of three years plus one year for the personal use of a deadly weapon enhancement (§ 12022, subd. (b)(1)) on count 7. The sentences on counts 4 through 6 were stayed pursuant to section 654.

On appeal, defendant argues: (1) the trial court erred by permitting the prosecutor to use voir dire to bind jurors to his theory that delayed reporting is not indicative of dishonesty; (2) the court erred in instructing the jury with CALCRIM No. 1193; (3) cumulative error necessitates the reversal of his convictions; (4) the court erred in failing to instruct the jury on one of the requirements for tolling the statute of limitations on count 13; (5) the imposition of enhanced sentencing under section 667.61 on counts 3, 8, 9, 10, 12, 13, 14, and 15 was improper; (6) insufficient evidence supports his conviction for aggravated kidnapping and the jury's findings of kidnapping and aggravated kidnapping circumstances under section 667.61; (7) the sentence on count 2 should have been stayed pursuant to section 654; and (8) his trial counsel rendered ineffective assistance by not objecting to the court's imposition of certain fees and fines and not requesting a hearing to determine his ability to pay them.

We conclude the sentence on count 2 should have been stayed. Further, the trial court erred in imposing enhanced sentences on counts 3, 8, 9, 10, 12, 13, 14, and 15 under section 667.61. The case is remanded for resentencing consistent with this opinion. Additionally, we agree with the People that there was a clerical error in the abstract of judgment. We direct the trial court to make the appropriate correction on remand. In all other respects, we affirm the judgment.

I. BACKGROUND

A. J. (Counts 12-14)

Sometime between 1994 and 1996, defendant was living with J. and his mother. One day when J.'s mother was doing laundry, defendant had J. lock the door and then perform oral sex on him. J. was between two and four years old at the time.

When J. was five or six years old, he woke up from a nap to realize defendant was using his penis to rub J.'s “behind.” Eventually, defendant penetrated J.

When J. was 10 or 11 years old, his mom was no longer dating defendant, but J. was allowed to visit him. On one occasion, J. woke up to defendant penetrating his anus.

B. Older Daughter (Count 10)

J.'s younger sister is defendant's older daughter. She did not live with defendant and does not remember spending time with him until she was seven or eight years old and she would visit defendant, his girlfriend, and her children, which included defendant's younger daughter. On one visit when the older daughter was about nine years old, defendant touched her vagina over her clothes for a couple of minutes when they were alone in the living room.

C. R. (Count 15)

In 2009 or 2010, when R. was around 10, she slept over at defendant's house. R. is related to defendant's girlfriend and her children. R. slept on the floor of defendant's room with one of the other children. At the time, the younger daughter was a baby. R. woke up to defendant touching her. Defendant had his hand under R.'s shirt and was rubbing her chest and stomach.

D. Younger Daughter (Counts 1-9)

In late December 2018 or early January 2019, defendant touched his younger daughter on at least two separate occasions. She was 10. One night, defendant came into her room when she was trying to sleep. Defendant took her pants down and touched her vagina.

The next night, while her mother was at work, defendant came into his younger daughter's room when she was asleep and touched her vagina over her pajamas. This time, “[i]t was more inside.” Afterwards, she told her mother. Her mother told defendant not to come back to the house, but he returned anyway.

One night two weeks later, her mother was at work again, and the younger daughter was on a mattress on the floor of her oldest brother's room because she was afraid to be alone in her room. She was pretending to sleep when defendant came in and gave her brother marijuana. Before he left, defendant said, “I wanted to give this to you because this is probably the last time I'm going to see you.”

After the brother appeared to be asleep, defendant returned. He laid down on the mattress next to his daughter and started touching her vagina over her pajamas. She pushed defendant away and ran to the living room where her other brother was sleeping. She sat down on the couch and wrapped her arms around her knees. Defendant came to the living room with his pocketknife and whispered that if she yelled he would kill her and her brothers. Defendant carried his daughter into his bedroom, closed the door, and put her on the bed.

Defendant told his daughter not to scream and undressed them both. He penetrated her vagina with his penis. Then, defendant put his penis inside of her anus. His body went up and down for what felt like a long time. Defendant stopped when one of her brothers knocked on the door.

II. DISCUSSION

A. Claims Related to Child Sexual Abuse Accommodation Syndrome

“[E]xpert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident-e.g., a delay in reporting-is inconsistent with his or her testimony claiming molestation. [Citations.] ‘Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior.' ” (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301.) Thus, in California, “it has long been held that in a judicial proceeding presenting the question...