People v. Torrez

Page 1

THE PEOPLE, Plaintiff and Respondent, v. ADAM TORREZ, Defendant and Appellant.

H021287.

Court of Appeals of California, Sixth Appellate District.

Filed July 18, 2003.

Santa Clara County Super.Ct.Nos. 198869 & 203442.

Affirmed.

Wunderlich, J.

A consolidated information and indictment was filed March 25, 1998, charging defendant Adam Torrez with 31 counts of committing a lewd act on a child under 14 (Pen. Code, § 288, subd. (a))¹ and one count of committing substantial sexual conduct with a child under 14 (§ 288.5, subd. (a)-count 32) involving victim Carlos A. All these counts additionally alleged that defendant had substantial sexual conduct with Carlos within the meaning of section 1203.066, subdivision (a)(8). In addition, there was a tolling allegation as to counts 1 through 31.

The consolidated information and indictment also charged defendant with one count of forcible lewd acts on a child under 14 (§ 288, subd. (b)(1) — count 33), three counts of committing a lewd act on a child under 14 (counts 34-36), and one count of committing substantial sexual conduct with a child under 14 (count 37), involving victim Jane Doe (hereafter, "Jane"). All these counts also included allegations under section 1203.066, subdivision (a)(8).

On March 5, 1999, defendant waived his right to a jury trial. The court trial commenced on March 9, 1999, and continued over eight court days through May 25. On that day, the prosecution moved to amend the charging document to add an allegation pursuant to section 667.61, subdivision (b), and to dismiss counts 1 through 12, and 33 through 35. The court granted the prosecution's motions. On June 4, 1999, the court found defendant guilty of counts 13 through 32, 36, and 37, and found true all enhancement allegations as to those counts. On March 3, 2000, the court sentenced defendant to a life term plus 66 years in state prison.

On appeal defendant argues that (1) all charges concerning Carlos are barred by the statute of limitations (2) he was denied his right of confrontation when Carlos was allowed to testify in defendant's absence during an in chambers telephone conference; (3) his sentence imposed pursuant to section 667.61 violates ex post facto principles; (4) trial counsel was ineffective in his cross-examination of Carlos; (5) the court's rulings regarding Carlos's testimony constituted prejudicial error; (6) cumulative error resulted in the denial of a fair trial; and (7) the court erred in failing to grant a sufficient continuance for the preparation of a new trial motion. We will affirm.

FACTS

The prosecution's case

Dr. David Kerns, who testified as an expert in the medical evaluation of possible child sexual abuse cases, reviewed a report and magnified photographs that Mary Ritter prepared of an examination she conducted on Jane on March 18, 1997. At the time of the examination Jane was eight years, nine months old, Dr. Kerns was the chairman of the pediatrics department at Valley Medical Center (VMC) and Ritter was the clinical coordinator of the Center for Child Protection at VMC. The examination and photographs of Jane's external genitalia revealed a markedly narrowed hymeneal rim which is the most frequent and consistent finding seen in cases of repeated penetrating trauma. The findings were too extensive to have been caused by a single incident, and there was no evidence of fresh or acute trauma. The findings were consistent with an attempted or actual penile penetration, and also consistent with repeated penetration by a finger or fingers.

Santa Clara police officer Filemon Zaragoza interviewed Jane on April 1, 1997. During the interview, Jane described various sexual acts involving defendant. She described his touching her genitalia, skin to skin, while she was being bathed. She described actual fondling, oral copulation, digital penetration of her vagina, and attempted penile penetration of her vagina. Jane said that this had happened more than 25 times. Although a lot of the times the touchings occurred when other people were in the home, they occurred in defendant's bedroom while Jane was playing with Nintendo or other games defendant had there.

Jane testified that defendant is her father's brother, and that he lived with her grandparents. After her parents broke up, her father lived with her grandparents also. Jane used to visit her grandparents' home about once a week with her mother and brother Carlos. Defendant had his own bedroom on the second floor. He had toys and a television in there, as well as video games. Often Jane would be alone in defendant's bedroom with him.

Defendant sometimes touched Jane in a way that she did not like. She did not remember when it first happened, how old she was, or what grade she was in. The first time, defendant put his hand on her vagina but she could not remember if it was over or under her clothes. The second time he touched her it was under her clothes. At a later time he put his tongue on her vagina. All these touchings happened more than twenty times, the whole time she was in the second and third grades.

Defendant also asked Jane to touch his penis. She did it because she was scared. Defendant tried to put his penis in her vagina but it hurt and she started crying. He also tried to put his penis in her rectum but she said, "No, please don't do that" and ran out of the room. Nobody else was in the room with defendant and Jane when the touchings occurred, and he would sometimes close the bedroom door. The touchings continued until Jane told her mother. After that, except for when her father died, they never went back to her grandparents' house.

Jane told her mother about the touchings because she was tired of defendant hurting her. At the same time, she told her mother that Carlos had rubbed himself against her while they both had their clothes on. Carlos had to leave her house and she was not allowed to see him again. She told Carlos before he left what defendant had done to her. It was after that, and after she had told a counselor about the touchings, that she was examined by a nurse and talked to a policeman. Jane had not told anybody about the touchings before then.

Rachel² is Jane's and Carlos's mother. Rachel and Carlos began visiting Jane's grandparents' home weekly in 1987. At the time, Carlos was about five and defendant was about 17. Jane joined the visits after she was born in June 1988. During the visits, defendant and Carlos were alone in defendant's bedroom on a number of occasions, including overnight at Christmas. When Rachel would check on them, the bedroom door was usually halfway open, except at night when all doors would be closed. When he got older, Carlos did not want to go with Rachel and Jane to the visits. By this time Jane was about five. Jane continued to visit her grandparents' home with Rachel while she was in the second and third grades, but the visits occurred then only once or twice a month. Rachel did not remember ever going up to defendant's room and finding him alone with Jane, or ever finding Jane in the room with the door closed, but defendant did have opportunities to be alone with Jane for periods of time. In March 1997, Jane told Rachel that she had been molested by defendant, which caused Rachel to stop the visits.

Carlos entered Martin House, a residential facility for juvenile offenders in Citrus Heights, in May or June of 1997. While there he attended both group and private counseling. In mid-November 1997, Carlos told his counselor that he was concerned that his sister was at risk from a certain individual with a family relation of some sort. When the counselor asked Carlos why he felt that way, Carlos revealed for the first time that he had been sexually assaulted as a child. The counselor reported the conversation to the authorities within 24 hours, on November 13, 1997.

Carlos called his mother in November 1997 and told her that he had been advised by a counselor to tell her what had happened to him. Before then, he had not said anything to Rachel about the sexual contact between defendant and him.

In mid-November 1997, Officer Zaragoza heard from Rachel that she had just learned that Carlos was also complaining of being the victim of sexual abuse. Zaragoza spoke with Carlos over the telephone on November 22, 1997. Carlos stated that he was about five or six when defendant began to fondle him at Jane's grandparents' home. At first defendant fondled Carlos and Carlos was made to fondle defendant. Later Carlos was forced to orally copulate defendant, and defendant sodomized Carlos. All such acts by defendant ended when Carlos was about 10 years old.

Carlos had a bowel disorder that began prior to when Rachel met Jane's father. The disorder would cause Carlos to soil his pants at least once a day. He had the disorder during the whole period of time that he was visiting Jane's grandparents home, and he just got over the problem a few years ago. Defendant and some other members of his family would make fun of Carlos and call him names because of his problem.

Carlos testified that he was about five years old when he first met defendant. He and his mother used to visit defendant's family in their home on weekends. Defendant had toys and games and Nintendo in his room, and Carlos would spend time with defendant there. Most of the time it was just the two of them, but sometimes there were other people in the room.

Defendant first fondled Carlos's penis when Carlos was six years old. The next time, defendant wanted Carlos to fondle defendant's penis. Carlos was hesitant, but defendant took his hand and placed it there. Defendant told him not to tell anybody and that, if he did, he would be the one to get in trouble. Later, defendant started to orally copulate Carlos, and he asked Carlos to do the same thing to him. When Carlos said no, defendant said that if he did not do so defendant would not let him play with his toys or video games. Defendant...