People v. Cabrera
| Decision Date | 05 June 2019 |
| Docket Number | F075531 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. OMAR CABRERA, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from a judgment of the Superior Court of Kings County. Steven D. Barnes, Judge.
Donn Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon, Darren K. Indermill and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Omar Cabrera was charged with multiple offenses stemming from his engagement in sexual activity with a 12-year-old girl, identified herein as Jane Doe. Defendant was convicted by jury of the following nine offenses: one count of administering an intoxicant with the intent to commit a felony (Pen. Code, § 222)1 (count 1); three counts of committing a lewd or lascivious act with a minor under the age of 14 years (§ 288, subd. (a)) (counts 2, 7 & 8); one count of attempting to commit a lewd or lascivious act with a child under the age of 14 years (§§ 664/288, subd. (a)) (count 4); one count of attempting to commit sodomy of a minor under the age of 14 years and more than 10 years younger (§§ 664/286, subd. (c)(1)) (count 5); one count of oral copulation of a minor under the age of 14 years and more than 10 years younger (former § 288a, subd. (c)(1))2 (count 6); one count of contact or communication with a minor with intent to commit a lewd or lascivious act (§ 288.3, subd. (a)) (count 9); and one count of arranging to meet a minor for the purpose of engaging in lewd or lascivious behavior (§ 288.4, subd. (b)) (count 10). The jury also found true the burglary special circumstance allegation attached to count 8 (§ 667.61, subds. (c)(8), (e)(2)),3 but found the kidnapping special circumstance allegation attached to count 4 not true and acquitted defendant of kidnapping a minor under the age of 14 years for the purpose of committing a lewd or lascivious act (§ 207, subd. (b)) (count 3).
The trial court sentenced defendant to an indeterminate term of 25 years to life in prison plus an additional determinate term of 16 years 8 months in prison, as follows. On count 8, the court sentenced defendant to an indeterminate term of 25 years to life pursuant to section 667.61, subdivision (j)(2).4 The court imposed the upper term of eight years on count 2 and consecutive terms on the remaining counts as follows: terms of two years each on counts 6 and 7, terms of one year each on counts 4, 5, 9 and 10; and a term of eight months on count 1.
On appeal, defendant claims the trial court erred when it denied his motion challenging the excusal of potential Juror No. 295751 (D.E.), brought pursuant to Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). He also claims the jury's burglary special circumstance finding is not supported by substantial evidence and the trial court erred in admitting a photograph of defendant with the victim when she was a baby. Finally, in supplemental briefing, defendant claims the trial court erred in failing to stay his sentences on counts 1, 9 and 10 under section 654.
The People concede the trial court erred in failing to stay the sentences on counts 9 and 10, but they disagree the court erred as to count 1, and they dispute defendant's entitlement to any relief on the other claims raised in this appeal.
We agree with the parties that the trial court should have stayed the sentences on counts 9 and 10 under section 654, but we otherwise reject defendant's claims and, except as modified with respect to counts 9 and 10, we affirm the judgment.
At the time of the crimes, Doe was 12 years old and was good friends with defendant's daughter, A.C., who was then 15 years old. Doe's and A.C.'s mothers were also close friends and had known one another since high school.
Toward the end of February 2015, defendant, who was no longer together with A.C.'s mother, took A.C. and Doe to see a movie. Afterward, they stopped at a liquor store and defendant bought Mike's Hard Lemonade for the girls, which they began drinking in the car. The trio then went to an apartment that belonged to defendant's girlfriend, where they continued to drink. In addition to Mike's Hard Lemonade, Doe had two shots of vodka, which defendant poured, and a drink with Malibu and orange juice, which defendant mixed.
Doe became intoxicated and could barely stand up without assistance. She testified that she moved next to defendant on the couch, hugged him, ran her fingers through his hair and put her leg over him. After A.C. left to use the bathroom, defendant and Doe began kissing. Doe then pushed defendant off and told him, "[T]his is wrong, we can't do this." After A.C. returned and defendant then left to use the bathroom, Doe told A.C. she just "made out" with A.C.'s father. A.C. responded that Doe was drunk and "doing dumb stuff."
Defendant returned and then helped Doe to the bathroom. Doe testified she took defendant's hand and they went into the bedroom belonging to his girlfriend's son, where they started kissing and she tried to take his belt off. Doe testified that she felt defendant's penis inside her vagina. They then moved to defendant's girlfriend's bedroom at his suggestion and engaged in sexual intercourse a second time. After Doe looked at a clock and saw that it was getting late, she told defendant she needed to go because her mother was going to be worried.
Doe testified that after they dressed and left the room, she started to cry because she had just lost her virginity and knew it was wrong. As they walked out of the apartment, Doe told defendant she hated him. He did not respond and when A.C. asked him why Doe said that, he stated he did not know. When defendant returned to the apartment to retrieve Doe's cell phone charger and the two girls were alone in the car, Doe, who was still crying, told A.C. that she had lost her virginity to A.C.'s dad. Doe testified that she could tell from the look on A.C.'s face that A.C. did not believe her.
In March 2015, Doe's mother gave her permission to go to the beach for the weekend with defendant, A.C., and A.C.'s younger brother, O.C. Defendant, along with A.C. and O.C., picked Doe up at her house but, due to the time of day and defendant's need to pack, they went to the house defendant shared with his mother in a nearby town rather than leaving for the beach as planned. On the way to his house, defendant stopped at the liquor store and bought tequila and a drink called "X-Rated."
At the house, Doe and A.C. began drinking alcoholic beverages and they smoked some marijuana with defendant, which he provided. When defendant's mother and his sister arrived at the house, Doe and A.C. went to his bedroom so his mother would not see Doe. At some point, defendant's sister left and his mother went to her bedroom. Doe, A.C., O.C. and defendant were all lying on defendant's bed, where Doe testified they slept that night. Doe stated she was a bit intoxicated, but felt normal.
As defendant lay next to Doe on the bed, he began rubbing her vagina and inserting his fingers inside her. He next rubbed his penis between her buttocks before climbing on top of her and inserting his penis in her vagina. After several minutes of intercourse, defendant orally copulated Doe briefly. He asked Doe if she wanted to go into the other room and when she said no, he left.
The next morning, defendant, Doe, A.C. and O.C. traveled to Culver City and defendant rented a hotel room with two beds. That night, Doe and A.C. drank some alcohol and smoked some marijuana. Doe testified she felt a little "buzzed" and a little high. After A.C. fell asleep, defendant tugged on Doe's hand and they went into the bathroom together, where they engaged in sexual intercourse.
The next morning, while A.C. was in the shower and O.C. was on the floor watching television, defendant moved over to the bed Doe and A.C. had shared. He inserted his fingers inside Doe's vagina, but stopped when O.C. got up from the floor.
In April 2015, Doe was home alone while her mother was at a doctor's appointment. She and defendant exchanged text messages and mutually agreed defendant would come over while her mother was gone. Doe testified that after defendant arrived, they had sexual intercourse. Afterward, defendant kissed her and left.
At some point shortly thereafter, Doe's mother read a text message on Doe's phone from an unknown number and became suspicious. Doe eventually told her mother that defendant got her drunk and they had sex. Doe's parents then contacted law enforcement and defendant was arrested after Doe placed two pretextual phone calls to him.
Defendant's mother testified regarding the night Doe was at her house in Avenal. Contrary to Doe's testimony that she was in defendant's bedroom when his mother camehome and he did not want his mother to know she was there, defendant's mother stated that A.C., O.C. and Doe were in the kitchen making food when she arrived. She said that the three children slept in the bedroom A.C. and O.C. shared when they visited her, that she saw defendant go into his own bedroom and close the door, and that the children went to bed before she did. She testified that she noticed nothing unusual that night.
Perla Trejo, the investigator for...
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