People v. Espinoza
| Decision Date | 05 February 2002 |
| Docket Number | No. H021384.,No. H022532.,H021384.,H022532. |
| Citation | 95 Cal.App.4th 1287,116 Cal.Rptr.2d 700 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Henry Gonzales ESPINOZA, Defendant and Appellant. In re Henry Gonzales Espinoza, On Habeas Corpus. |
Alex Green, Under appointment by the Court of Appeal, for Appellant.
Bill Lockyer, Attorney General of the State of California, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Christopher W. Grove and Sharon G. Birenbaum, Deputy Attorneys General, for Respondent.
Adrienne M. Grover, County Counsel, J. Michael Hogan, Senior Deputy County Counsel, William K. Rentz, Deputy County Counsel, for Monterey County Department of Social Services as Amicus Curiae on behalf of Respondent.
Defendant was convicted after a court trial of four counts of lewd conduct on a child (Pen.Code, § 288, subd. (a)), one count of forcible lewd conduct on a child (Pen.Code, § 288, subd. (b)) and-one count of attempted forcible rape (Pen.Code, §§ 261, subd. (a)(2), 664). He was committed to state prison for a term of eight years. On appeal, he claims that his due process rights were violated by the trial court's exclusion of (1) evidence that the victim had made a prior false allegation of molest, (2) testimony by a defense psychiatrist regarding the victim's credibility and (3) testimony by the victim's foster mother regarding the victim's credibility. He also asserts that the evidence was insufficient to support a finding of force or duress as to the forcible lewd conduct count or the attempted forcible rape count. In an accompanying petition for writ of habeas corpus, defendant asserts that he is entitled to a new trial because he has recently discovered evidence which undermines the prosecution's case.
We conclude: (1) defendant never proffered evidence that the victim's prior accusation was false, (2) the proffered expert psychiatric evidence was inadmissible and its exclusion did not violate defendant's due process rights, (3) Welfare and Institutions Code section 827 did not justify exclusion of the foster mother's testimony but its exclusion was not a violation of defendant's right to due process and did not prejudice him, (4) there was insufficient evidence of duress and (5) his petition is meritless. We therefore modify and affirm the judgment and deny the petition.
In early April 1999, defendant and his father drove to Nebraska from California and picked up defendant's three daughters L., J. and A. and their elder half-sister M. from their mother to bring the girls to live with him in Salinas. L. and J. wanted to come live with defendant because they "missed him." Defendant had promised to take them to Disneyland and Knott's Berry Farm. Their half-sister M. went to live with a friend initially and then with defendant's sister. M. did not live with defendant because defendant had molested M. three times between 1988 and 1990. When M.'s mother had confronted defendant about M.'s allegations at the time, defendant said he had molested her because she "was not his." Defendant had been prosecuted and convicted of molesting M. When he came to pick up the girls in April 1999, defendant got on his knees, cried and asked their mother to forgive him for molesting M. Defendant claimed that he had "changed," that he was attending church and that he "would never do that again." Before defendant left Nebraska with the girls, their mother told him that L. had been molested by L.'s uncle in Nebraska. Defendant had no reaction to this disclosure.
L. knew that defendant had molested M., but M. never spoke to L. about the molestations. In April 1999, L. was 12 years old and in special education classes at school. She was "a loner" even amongst her sisters. L. was not as "bright" as her sisters and often had trouble concentrating. The girls arrived in Salinas with defendant on April 10. L. started school in Salinas on Thursday, April 15. Defendant's sister noticed when defendant brought the girls to visit her that L. "seemed to stay away" from defendant.
L. and her sisters shared a bedroom in defendant's apartment, but her sisters often slept in defendant's bedroom.1 L. never slept in defendant's bedroom. When L. was sleeping in her bedroom alone, defendant would come into the room in the wee hours of the morning when it was very dark and molest her. Defendant molested her on five occasions.2 On at least one occasion defendant turned on the lights before he molested her. On four occasions, defendant sat on the bed, pulled her pants down and rubbed her breasts and vagina underneath her clothes with his hands. This rubbing "felt uncomfortable" to L. but not painful. L. was "too scared to do anything" when defendant was molesting her. She was "[v]ery scared" and "frightened."
Because L. was afraid that defendant "would come and do something" if she reported the molests, she was reluctant to report them to an adult. On Friday, April 23, 1999, while at school, L. told her two young friends Norma and Veronica that defendant had been molesting her. She told them that defendant was coming into her room at about 3:00 a.m. and touching her private parts. Her friends urged her to report the molests, but she told them she was "scared" that defendant "would do something to her if she would go and tell." L. told Veronica that she was "scared" of defendant and "scared to go home." She asked Veronica if she could go live with her. Veronica said she would ask her mom. L. told her friends that she would think over the weekend about reporting the molests.
The fifth and final molestation occurred in the early morning hours on April 25 or 26. On this occasion, he not only rubbed her body but he also put his tongue in her mouth, licked her vagina and tried to put his penis in her vagina.3 L. could feel "[s]omething going in me." L. "moved" to prevent defendant's penis from going inside her. She felt something wet on her sheets. Defendant then apologized and asked her to forgive him. L. said nothing. Afterwards, L. saw "[s]ome liquid stuff on her sheets. L. got up and looked at a clock, and it was between 2:00 a.m. and 3:00 a.m. When defendant returned from work that morning to take the girls to school as he usually did, he removed the sheets from L.'s bed and washed them.
On Monday, April 26, L.'s friends reiterated their concerns and L. reluctantly agreed to report the molests. L. then reported the molests to a school counselor. The police and Child Protective Services were notified, and a police officer and social worker Michelle O'Brien came to the school. L. spoke to both the police officer and O'Brien and told them that defendant had molested her five times in the last two weeks.
The school contacted defendant's sister, and she came to the school. While defendant's sister was at the school, defendant paged her. She telephoned him. Defendant told his sister that L. had made a child molest allegation and he believed the molest had happened in Nebraska. Defendant asked his sister to come pick up L.'s sister A. from his apartment because "he had things he needed to do." Defendant's sister went to his apartment. Defendant was packing L.'s and her sisters' clothing. It looked as if the clothes had been freshly laundered. Defendant's sister observed that there was no bedding on the girls' bed. It was just a bare mattress. Defendant told her that he "thought it was best that they stay with me until things mulled over." He said that he had gone to pick up L. and J. from school and had been told that J. would not be coming home with him. He was asked to wait a minute, but he left the school immediately. Defendant also told her that Defendant's sister took A. and the packed clothing away from defendant's apartment, and defendant said he would send along the rest of the girls' possessions later. Defendant told his sister that he "was just going to sit there and wait."
L. was transported to the Child Advocacy Center where she was interviewed by Susan Gleason. A transcript of Gleason's interview with L. was admitted at trial. L. told Gleason that she had previously been molested by her uncle. She said that her uncle had touched her private parts "the same that my dad did." It had taken her "a long time" to report the uncle's molestations, but the molestations ended when she reported them. L. told Gleason that her sisters did not believe her about the Nebraska molestations.
L. stated that defendant had begun molesting her "in the middle of like last week, I think." L. also reported that defendant had begun molesting her on the third or fourth day that she attended school after moving in with defendant. He molested her five or six times in a period of less than two weeks. The events did not occur every night. L. said that defendant usually went to work at 2:00 or 3:00 a.m. and then returned to take her and her sisters to school. Defendant's molestations of her generally occurred before he went to work on mornings when L.'s sisters were sleeping in defendant's bedroom rather than in the bedroom L. otherwise shared with her sisters. When the first molest occurred, she awoke to find defendant lying or sitting on her bed touching her arms, legs and private parts. L. was "really scared" and "didn't know what to do" so she "just stayed there" and defendant "kept on touching" her. Defendant had not removed her clothing but instead had pulled up her nightshirt, pulled down her underwear and slipped his hand inside her bra.
Defendant only spoke to her during one of the molests. He said "Do you still love me" and then repeatedly said "Please love me" and possibly cried. She initially reported that the most recent event had occurred ...
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