People v. Contreras

• Decision Date: 28 May 2014
• Docket Number: No. 1-11-3290,1-11-3290
• Citation: 2014 IL App (1st) 113290
• Court: United States Appellate Court of Illinois
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAVIER CONTRERAS, Defendant-Appellant.

2014 IL App (1st) 113290

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
JAVIER CONTRERAS, Defendant-Appellant.

No. 1-11-3290

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT THIRD DIVISION

May 28, 2014

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County.
No. 09 CR 12421
Honorable Stanley Sacks, Judge Presiding.

JUSTICE PUCINSKI delivered the judgment of the court.
Presiding Justice Hyman and Justice Mason concurred in the judgment.

ORDER

¶ 1 Held: We affirm defendant's conviction of aggravated criminal sexual abuse over his contention that his trial counsel was ineffective for failing to elicit testimony from his wife that he spoke only limited English.

¶ 2 Following the second jury trial of defendant Javier Contreras, he was convicted of aggravated criminal sexual abuse and sentenced to 180 days in jail, 36 months of probation, and, upon release, 18 months of home confinement. On appeal, defendant contends that he was denied effective assistance of trial counsel where counsel failed to elicit testimony from his wife that he spoke only limited English, which would have supported his argument that he could not

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have understood the written statement he purportedly provided to police. We affirm.

¶ 3 Defendant was charged with criminal sexual abuse and aggravated criminal sexual abuse, stemming from an incident where he allegedly touched the minor E.M.'s vagina over her clothing on or about June 14, 2009. Defendant's first jury trial resulted in a mistrial when the jury was unable to reach a unanimous verdict.

¶ 4 During the opening arguments of defendant's second jury trial, defense counsel stated that this case was about vengeance and that E.M.'s father, Bayron Najera, had gotten angry at defendant regarding an earlier incident and attacked him. Counsel noted that this attack was the reason the police were called, and not child molestation. Counsel further argued that the State would attempt to "trick" the jury into believing that defendant spoke English.

¶ 5 At trial, E.M. testified that on June 13, 2009, she went to her grandmother's house at 3419 North Neva Avenue in Chicago between 3 and 4 p.m. to celebrate her cousin's birthday. E.M.'s grandmother, Laura Contreras, was married to defendant. Later in the evening, E.M. went to sleep on the couch in her grandmother's living room. She was woken by defendant's hand, which was touching her vagina over her clothing for about 30 seconds. E.M. went outside to find her mother and started to cry, telling her mother in Spanish that defendant had touched her "bad stuff." E.M. explained that, similarly to her father and defendant, she spoke English and Spanish. She spoke Spanish to her mother and English to defendant. E.M.'s mother then told Bayron what had happened, and he punched defendant. The police arrived later and asked E.M. what defendant did to her and she told them. E.M. was taken to the hospital where a doctor examined her. The parties subsequently stipulated that on a prior occasion E.M. saw defendant arguing with her grandmother.

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¶ 6 E.M.'s mother, Karla Najera, testified substantially similar to E.M. She further testified that about an hour before E.M. returned outside and stated that defendant had touched her, she saw her mother, Laura Contreras, and defendant arguing in the dining room. Karla could not hear what they were saying, but she saw defendant raise his hand as if to hit Laura.

¶ 7 Detective Tannia Franchini testified that she interviewed defendant on June 15, 2009, and, although she informed him that she spoke Spanish, defendant indicated that he preferred to speak in English. Defendant told her that he had been drinking on the day of the party, went to sleep at 10 p.m., and when he awoke he saw E.M. sleeping on the living room sofa. Defendant admitted to touching E.M.'s leg and "panocha," a Spanish term for vagina. Defendant elaborated that he touched E.M.'s vagina with his hands over her clothes and when she got up to tell her mother, he touched her "nalgas," a Spanish term for "butt cheeks." Defendant stated that he was sorry and knew it was not right to touch children. Other than the Spanish slang terms defendant used, the rest of the statement was made in English. After defendant indicated he was willing to talk to an assistant State's Attorney (ASA), Franchini notified felony review and ASA Kari Mason arrived and spoke with defendant in Franchini's presence. Franchini explained that had defendant wanted to speak to ASA Mason in Spanish, she could have served as an interpreter. However, there was no need to do so because defendant spoke English.

¶ 8 ASA Mason testified that she introduced herself to defendant and initially wanted to ascertain if he spoke English well enough to talk to her, or whether she needed Detective Franchini to translate. Defendant, however, understood what she was saying in English, and when Mason advised him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), he indicated that he understood. Defendant spoke to her in English and never indicated any hesitation in his ability to understand her questions. Following their conversation, defendant

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indicated that he wanted his statement written down, and Mason typed a summary of what defendant told her. Defendant's statement, which was substantially similar to the oral statement he gave Franchini, was admitted into evidence and read to the jury. The written statement indicated that defendant understood and spoke English,...