People v. Solorzano-Garcia

THE PEOPLE, Plaintiff and Respondent, v. NELSON EDUARDO SOLORZANO-GARCIA, Defendant and Appellant.

G058552

California Court of Appeals, Fourth District, Third Division

January 10, 2022

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County No 18CF1208, Jonathan S. Fish, Judge.

Valerie G. Wass, under appointment by the Court of Appeal for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

O'LEARY, P. J.

Nelson Eduardo Solorzano-Garcia (Solorzano) appeals from the judgment after a jury convicted him of committing a lewd and lascivious act on his four-year-old daughter G.G., having sexual intercourse with her, and engaging in oral copulation. On appeal, Solorzano contends: (1) the trial court erred in finding G.G. was competent to testify; (2) statements he made to the police were involuntary as they resulted from police coercion and implied promises of leniency; (3) his trial counsel rendered ineffective assistance by failing to seek suppression of these involuntary statements; (4) the prosecutor erred during her closing argument by misstating the law concerning the mens rea element of the sexual intercourse and oral copulation offenses; and (5) clerical errors in the sentencing minute order and abstract of judgment must be corrected. We direct the trial court to correct the clerical errors. In all other respects, we affirm the judgment.

FACTS

I. Background

Solorzano moved to the United States with his daughter G.G. when she was about three years old. G.G.'s mother (Mother) was supposed to follow them but did not. After Solorzano and G.G. had been in the country a few months, Mother wanted him to send G.G. back to her, but he refused. Solorzano told Mother he would not take away G.G.'s future and send her back to the dangerous place from which they escaped.

Solorzano and G.G. lived in a couple of different cities. He found it difficult to find work and care for G.G. When G.G. was about three and one-half years old, Mother arranged for her aunt (Auntie) to provide childcare. Solorzano and G.G. moved to Santa Ana so Auntie could take care of G.G. Solorzano got a job and a place to live.

While Solorzano worked, G.G. would stay at Auntie's house four to six continuous days. On Solorzano's days off, he would pick up G.G. and take her to his residence for two days. There, they would sleep in the same bed. G.G. followed this routine for about three months, and during this time, Auntie became a second mother to her.

Auntie knew Mother wanted G. G. back. At first she offered to help Mother, but after taking care of G.G. for two months, Auntie told Mother she wanted custody of G.G. herself. Auntie asked Solorzano to give her custody of G.G. so she could take G.G. to school or the doctor. Neither Solorzano nor Mother agreed to give Auntie custody of G.G.

II. G G Makes Accusations Against Solorzano

A few days before G.G. 's fourth birthday, she told Auntie about Solorzano inappropriately touching her private parts. G.G. complained her private parts burned and described Solorzano having sexual intercourse with her. Initially, Auntie thought G. G. was lying. But when she bathed G.G., she noticed some "waste" in G.G. 's underwear and decided to retain the underwear. Auntie informed Solorzano of G. G.' s allegations and told him to take G.G. to the doctor because she might have a urinary tract infection. Solorzano responded G.G. was "crazy."

Auntie took G.G. to the police about 10 days later, after Auntie talked to her about it again and G.G. was very convincing. She told G.G. to tell the police the truth, but she did not specifically tell G.G. what to say. Officer Maria Alvarez interviewed G.G. and Auntie at the police station. Auntie gave the police two pairs of G.G. 's underwear she had collected.

Alvarez took G.G. and Auntie to a local hospital, where a forensic nurse conducted a sexual assault examination of G.G. G.G. had a normal hymen with a smooth rim and no visible injuries. Given these findings, the nurse could neither confirm nor negate sexual abuse. The nurse obtained a buccal swab from G.G. and swabbed several parts of her body for DNA testing, including G.G. 's stomach, inner thighs, mons pubis, anus, vulvar, and vestibule. After the examination, G. G. was taken to the Orangewood Children and Family Center.

III. Solorzano's Police Interviews

An officer arrested and interviewed Solorzano. In the interview, Solorzano denied any inappropriate contact between himself and G.G. The next day, Detectives Gerardo Corona and Joanna Perez reinterviewed Solorzano at the men's central jail because Corona wanted to obtain more information. The interview was conducted in Spanish, Solorzano's native language. Solorzano stated the arresting officer told him that G.G. had accused her "papá" of touching her or kissing her private parts. Solorzano denied the allegations and denied G.G. called him "papá." He told Corona that G.G. called him "bebe" (baby), not "papa," and he had informed the arresting officer those were not his daughter's words.

When asked if he accidentally touched G.G. inappropriately, Solorzano responded affirmatively. He described two times when he might have touched G.G.'s vaginal area. One time occurred when he was playing with G.G. Solorzano explained he often played with G.G. by grabbing and squeezing her buttocks and asking her "mami, de quien es este [c]ulito?" (mommy, whose little ass is this?). Once when he did this, it felt like he touched G.G.'s vaginal area, and G.G. told him it hurt.

Solorzano described another time when he was helping G.G. clean herself. He explained G.G. had been with him for three days and had not showered because it was cold. Solorzano said he cleaned G.G.'s buttocks and vaginal area with wet wipes but did not otherwise touch her. Corona told Solorzano helping G.G. clean herself was not touching her inappropriately, and he pushed Solorzano to explain how he touched her inappropriately.

Later in the interview, Solorzano said he touched G.G. when he checked her and cleaned her, but he denied putting his mouth on her "part." He said G.G. was lying when she said he did so. Using a ruse, Corona told Solorzano they had found his saliva on G.G. and asked Solorzano to explain why it was on her. Solorzano responded he had no idea. After Corona repeatedly told Solorzano they found his saliva on G.G.'s vaginal area, Solorzano admitted he kissed G.G. and stated, "it was a fucking mistake." He repeated the story about G.G. not showering for three days while she was staying with him. He said when G.G. came back from the bathroom she told him it hurt when she peed, so he used the wet wipes to clean her. When he cleaned her, he kissed her vaginal area as a type of affection. He did not have lewd intent or intend to hurt her, but he accepted he made a mistake in kissing her.

At points during the interview, Solorzano stated he felt very bad, was ashamed, and believed he hurt G. G. He said it would be good for him to talk to a counselor. He also said it was possible G.G. came onto him. When asked to explain, he only stated G.G. would go through his cell phone sometimes.

IV. G.G. 's Interview

After interviewing Solorzano, Corona attended the social worker's interview of G.G. at the Child Abuse Services Team (CAST) facility. At the beginning of the interview, the social worker explained to four-year-old G.G. that she should only say things that are true while they were talking. The social worker tested G.G. 's understanding of the difference between true and not true statements. G. G.' s answers reflected she understood the difference and G.G. promised to tell the truth.

When asked what happened, G. G. responded her "daddy threw milk here" and pointed to her crotch area. She indicated her father had milk that came from his crotch; she did not know what his part was called. Using two teddy bears to demonstrate, G.G. explained at night, her father took off her clothes and his, lied on top of her, and went "tun, tun, tun." When he did that, it felt bad and hurt. G. G. asked him what he was doing, and he said nothing. G.G. would tell herself to go to sleep.

G.G. used a teddy bear to show the social worker the area where her father put his penis between her legs. She did not know what the part between her legs was called; she called it "toto." She said her "toto" hurt and bled but did not hurt at the time of the interview.

Again using the teddy bears, G.G. demonstrated her father would spit between her legs, raise her legs, and get on top of her. G.G. said he weighed a lot and it felt bad. She also demonstrated him putting his legs around hers and holding her hand with his hand. She said her father did something to her buttocks and it hurt, but she did not know what he did. G.G. complained her mouth hurt and her father did something to her mouth, but she could not explain what.

G.G. indicated her father did "tun, tun, tun" one time, put her legs up and was on top of her one time, and spit between her legs many times. She said he kissed her on the mouth, cheeks, and neck many times. Throughout the interview, G. G. referred to Solorzano as "papi" and said he called her "mami."

V. Forensics

The swabs taken during G.G. 's sexual assault examination and the two pairs of her underwear were submitted to the Orange County Crime Lab for forensic analysis. A forensic scientist tested each swab for acid phosphatase, an enzyme found in high concentrations in seminal fluid. It was only a presumptive test because the enzyme is also found in lower...