People v. Cortez
| Decision Date | 30 August 2021 |
| Docket Number | G060202 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. CARLOS HUMBERTO CORTEZ, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Santa Clara County No. C1758063 Kenneth Paul Barnum, Judge. Affirmed.
Jennifer A. Mannix, under appointment by the Court of Appeal for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Donna M. Provenzano and Melissa A. Meth, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Carlos Humberto Cortez of one count of oral copulation of a child 10 years old or younger (count 1), and two counts of a lewd act on a child under 14 (counts 2 and 3). (Pen. Code, §§ 288.7, subd. (b); 288, subd. (a).)[1] He was acquitted of a third lewd act charge (count 4). The trial court sentenced appellant to a 10 year determinate prison term, plus a consecutive indeterminate term of 15 years to life. Sundry fines and fees were imposed.
Appellant contends: His conviction on one of the lewd act counts (count 3) was not supported by substantial evidence; the trial court prejudicially erred by allowing expert testimony regarding Child Sexual Abuse Accommodation Syndrome (CSAAS); and CALCRIM No. 1193, the standard limiting jury instruction when CSAAS-related testimony is introduced, is legally flawed. As to his sentence, appellant contends the trial court prejudicially erred by imposing fines and fees without first conducting a hearing on his ability to pay them. Finally, appellant requests we independently review the complaining witness' confidential school records to determine whether the trial court erred by denying their release and, if so, remand the matter for a hearing to determine whether a new trial is warranted.
We reject appellant's three substantive contentions, as well as his ancillary challenge to the fines and fees imposed as part of his sentence. There are no school records in the appellate record, nor is there anything to indicate they were preserved in the trial court; in other words, there is nothing we can review. The judgment is therefore affirmed.
We need not lay out the underlying facts in exhaustive detail. Additional facts relevant to the specific issues appellant raises are developed more fully in the discussion below. In all instances, the facts are presented in the light most favorable to the jury's verdicts. (People v Abilez (2007) 41 Cal.4th 472, 504.)
During 2009 and 2010, appellant lived in an apartment with Maria M. and her three children, one of whom was her daughter K.D., who was born in November 2000.[2] During the summer of 2010, there was a baby shower and pool party for a neighbor in the apartment complex. Appellant did not attend the party, and stayed in the apartment. During the party, K.D. and two of her younger cousins went back to the apartment to change into their bathing suits. The cousins returned to the pool while K.D. was still changing.
Appellant called K.D. into the kitchen. He asked her to sit on the table and she did. She was wearing a two-piece bathing suit. Appellant pulled down her bathing suit bottoms and knelt down in front of her. With his head between her legs, he licked the “surface” of her vagina. She said it was the area just above where “the crack begins.” Although she did not have pubic hair at the time of the incident, she said it was the same area where her pubic hair would later grow.
Appellant licked K.D. all around that area, “down to where the crack starts.” He asked her what she felt, but she just felt his tongue. At some point, he stopped, and she pulled her bottoms back up and returned to the party. She did not tell anyone what had happened.
Appellant touched K.D. sexually on other occasions as well. K.D. shared a bedroom with her brothers. Her older brother slept in one bed, with K.D. and her younger brother in the other. However, if her older brother spent the night elsewhere, she would sleep alone in his bed. She said there were several times when she was asleep in her brother's bed that she would wake up and feel her pajama bottoms being taken off, and appellant's tongue on her vagina.
K.D. could not recall many of the details of these incidents. She said she also sometimes had nightmares about appellant, and when she woke up, she would not be sure if anything really happened. However, she insisted she knew he actually entered her bedroom and touched her on more than one occasion.
K.D. specifically remembered the last time appellant touched her sexually, again while she was alone in her brother's bed. Early one morning, she awoke to appellant touching her breasts while he was kneeling next to the bed. She was clothed, but his hands were under her shirt and touching her nipples.
K.D. said she “just had enough of what had been going on, ” and told appellant “to stop and get out of [her] room.” As appellant was leaving, K.D. told him she was going to tell her mother. He told her to shut up, and left the room. K.D. got up, put a chair under the doorknob to prevent him from coming back in, and went back to sleep.
Later that morning, K.D. heard her mother trying to get into the room. She had taken appellant to the bus stop around 5:30 a.m., and when she returned to the apartment, she went to check on the children. The door was blocked, so she knocked. K.D. opened the door and told her mother appellant had entered her bedroom that morning and begun touching her breasts. K.D. was crying and told her mother it had happened four or more times before. K.D. told her she had not said anything earlier because appellant had told her he was not doing anything wrong.
In her testimony, K.D. also said she had not told her mother earlier because she was embarrassed, and did not want to ruin her mother's relationship with appellant. After telling her mother, she said she did not talk about it again until years later when she told her therapist.
On cross-examination, K.D. admitted that at first she did not tell her cousins, her aunt, her brother, or her mother what she said had happened. She also could not remember exactly what she or appellant were wearing during the final incident, or other collateral details about the other nighttime incidents.
Maria M. testified K.D. did not want anyone to know about the abuse, so she too did not tell the police. She ended her relationship with appellant, and moved out of the apartment a few days later. Maria M. said that before K.D.'s disclosure, appellant had told her that in a prior relationship, he had been accused of an incident similar to what K.D. later described. He told Maria M. he went to jail for three to four months but then was found “innocent.” She said she had believed him, and let him move in before she really got to know him.
After K.D. told her mother about the abuse, K.D. changed. Maria M. said K.D. acted frightened, never wanted to be alone, and would cry during school. K.D. testified she was depressed and had suicidal thoughts during this time. When K.D. got to high school, the school recommended Maria M. take her to a counselor.
In June 2016, K.D. began seeing a therapist, Maria Guzman. At their first session, Guzman asked K.D. about her background and if she had experienced any trauma. K.D. told Guzman she had been molested by her mother's ex-boyfriend multiple times when she was 9 or 10. Guzman said K.D. was very emotional and crying when she discussed it, and she cried about it on multiple subsequent occasions. Guzman reported the abuse to the Department of Child and Family Services, who then reported it to the police. In July 2016, K.D. was interviewed by a police officer, and said she was now willing to discuss the abuse because she was older now and wanted to go through with the process to get “justice.”
Dr. Blake Carmichael testified as an expert about CSAAS. He explained CSAAS is a term used to help describe and explain some of the myths and misperceptions regarding how children react to and report sexual abuse. He emphasized it is not a diagnostic tool to determine whether a child was in fact abused. There are five kinds of characteristic aspects to CSAAS: secrecy; helplessness; entrapment or accommodation; delayed, conflicted, or unconvincing disclosure; and retraction or recantation. He explained how these characteristics often manifested, and how abused children frequently behaved counter-intuitively to what the average layperson might expect. Carmichael said he was not familiar with the facts of K.D.'s case, and had not spoken to any of the involved parties or witnesses.
Pursuant to Evidence Code section 1108, the prosecutor introduced evidence of a child annoyance case from 2008. Appellant was living with a woman with several children, including her 14-year-old daughter, J.D. J.D. was almost 15 and had talked to her mother about wanting a car, which appellant overheard. One night, J.D. was in the kitchen washing dishes while her mother was out. Appellant walked up close to her and told her he would get her a car if she had sex with him. J.D. was uncomfortable and afraid of what appellant might do since her mother was not home, so she told appellant she would think about it. She saw him again later that night and he asked her again to think about it. J.D. told a neighbor about appellant's proposition, and at her neighbor's urging, J.D. told her mother and later...
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