People v. Giron-Chamul

Decision Date18 March 2016
Docket NumberA140628
Citation200 Cal.Rptr.3d 159,245 Cal.App.4th 932
CourtCalifornia Court of Appeals Court of Appeals
Parties The PEOPLE, Plaintiff and Respondent, v. Ricardo GIRON–CHAMUL, Defendant and Appellant.

Counsel for Appellant: William P. Daley, San Diego by appointment under the First District Appellate Project.

Counsel for Respondent: Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, John H. Deist, Deputy Attorney General.

Humes, P.J.Ricardo Giron–Chamul was charged with one count of sexual intercourse with a child aged 10 years or younger, one count of sexual penetration of a child aged 10 years or younger, and one count of oral copulation with a child aged 10 years or younger, based on accusations made by his four-year-old daughter (daughter).1 A jury convicted Giron–Chamul of the oral-copulation count and acquitted him of the other two counts, and he was sentenced to a term of 15 years to life in prison.

On appeal, Giron–Chamul claims that (1) he was denied his right to a speedy trial; (2) insufficient evidence supports his conviction; (3) the testimony of daughter, who was five years old at the time of trial, should have been excluded because she was not competent to testify; and (4) he was deprived of his constitutional right to confrontation. We reject the first three arguments but agree with the last. We hold that Giron–Chamul was denied an opportunity to effectively cross-examine daughter because she did not answer hundreds of questions posed by his trial counsel, including approximately 150 that sought substantial information on important issues. We also conclude that Giron–Chamul was prejudiced by daughter's refusal to answer these questions, and we therefore reverse his conviction.2

I.

FACTS

A. The Initial Report.

Giron–Chamul married K.S., daughter's mother, in September 2005, and daughter was born in December 2006. The couple separated in January 2010, after Giron–Chamul, who was a master sergeant in the United States Air Force during the events in question, returned from a deployment. After the separation, daughter stayed with Giron–Chamul at his home in Fairfield every other weekend. K.S. believed daughter and Giron–Chamul, whom daughter called "Papi,"3 had "a close relationship," and she trusted him with daughter. K.S. testified that she had an "amicable" relationship with Giron–Chamul "at most times" after they separated, although they were involved in an active divorce case in the fall of 2011.

Daughter returned from a visit with Giron–Chamul on Sunday, September 4, 2011, a few months before she turned five years old. The following Thursday, Giron–Chamul called K.S.'s home and had a brief conversation with daughter. Later that night, K.S. was getting daughter ready for bed, a routine that included applying ointment to daughter's vagina to treat occasional rashes. K.S. testified that daughter "grabbed her labia," "moved it as if it were talking," and said in a "playful ... but ... rougher tone of voice," " ‘I'm going to eat you.’ "4 K.S. asked daughter, "Where did you learn that?"5 Daughter responded, " ‘My [papi].’ "6

K.S. asked daughter if Giron–Chamul had done anything else to her. Daughter "slapped [her groin] with her hand cupped," explaining that Giron–Chamul " ‘goes like this' " and denying that she meant he had slapped her own hand when she tried to touch herself. Daughter also told her mother that Giron–Chamul had pinched her and demonstrated by pinching a stuffed bear in its "groin area." Daughter became "an[ts]y" as she talked to K.S., and K.S. stopped questioning her and put her to bed.

The next day, K.S. took daughter to the small daycare she had been attending since she was two years old. K.S. told the daycare provider that daughter had reported that "somebody had touched her," and she asked the daycare provider to try to elicit more information from daughter. The daycare provider testified that K.S. said daughter "was grabbing her vagina" the night before and had tied the action to "her [papi]."

After K.S. left, the daycare provider asked daughter if "somebody [did] something to [her] ‘pompi al frente,’ " which the daycare provider testified meant daughter's "private in the front," or to her " ‘pompi del atras,’ " which meant her bottom. Daughter responded, "Yes, my [papi]," and attempted to demonstrate by "pick[ing] up her dress and pull[ing] down her pants" before the daycare provider stopped her.7 In response to further questions, daughter said she had told Giron–Chamul to stop and claimed that "[Papi's] amigos," who were in the room at the time, also told him to stop. Daughter mentioned "her best friend Jessie" was present as well.8 Daughter also said Giron–Chamul would touch her when she was taking a bath and "he would be sneaky."

The daycare provider then took daughter to the daycare's play room. Without prompting, daughter grabbed a baby doll and squeezed its "vaginal area." She then licked her index finger, "put it on her forehead and then on her hand, ... and then on her other hand and then on her vagina," and made a "sizzling sound."9 The daycare provider immediately called K.S. to tell her she believed daughter should see a doctor and then made a report to Child Protective Services.

The daycare provider had daughter sit with some of the other children while waiting for K.S. to arrive and gave the children paper so they could draw. Daughter drew a face next to three short vertical lines, two large circles underneath the face, and another set of three longer vertical lines touching the bottom of one of the circles. Daughter explained to the daycare provider that the drawing, which was admitted at trial, depicted daughter's "sad face because ... she didn't like it." The circles depicted daughter's "bottom," and referring to the sets of vertical lines, daughter "specified that the small tongue was her tongue, and that the big tongue was [Papi's] tongue when [Papi] was licking her bottom."

K.S. picked daughter up and took her to a hospital later that morning. A physical exam of daughter's external genitalia revealed "no bruising, no bleeding, no redness, no swelling," nor any other indications that daughter had been hurt, and daughter denied experiencing any pain. K.S. made a police report later that night, and she soon obtained a restraining order in family court preventing Giron–Chamul from having contact with her or daughter.10

B. The Forensic Interview and Sexual-assault Examination.

A trained police technician employed by the Fairfield Police Department conducted a forensic interview of daughter in mid-October 2011, about five weeks after her initial report, and a video recording of the interview was played for the jury. At the interview's outset, daughter was able to answer questions about her name, age, and address, but she did not exhibit a clear understanding of the difference between the truth and a lie when the interviewer asked her about that concept.11

Using anatomical diagrams, daughter indicated that she used the term "colita" for both vagina and penis and the term "booty" for bottom. The interviewer said she had heard that daughter "told [her] mommy ... something about [her] colita" and asked her what it was. After licking her index finger and placing it on her lower back while making a sizzling sound, daughter stated, "[M]y dad do it like this." Daughter then stated, "He touched my colita." When the interviewer asked daughter what her father "touched it with," daughter pointed to her vagina and said, "He touched with ... a lengua," which means "tongue" in Spanish. She said, "He can't stop ... [¶][c]ause he's so crazy" and "he [did] it again like a hundred times."

Daughter then lay back in her chair, spread her legs in the air, and touched her vagina, saying that it "was red and ... it was night.... [¶] And [Giron–Chamul] was cleaning it. And it's ... red." Daughter indicated he had licked his finger and touched her vagina as well as her "butt." When asked what her father said when he touched her "butt," she said, "He says yes to me and I say no to him." She also said that "he said[,] ‘I'm sorry,’ " because "he like me, because he's my best friend." She could not provide clear or consistent answers about where or when the touching had occurred.

The interviewer then gave daughter a glass, explaining that the exterior was "outside of [daughter's] colita" and the interior was "inside [daughter's] colita," and a pen, explaining it was "daddy's finger," and asked daughter to demonstrate how Giron–Chamul touched her vagina. Daughter put the pen straight into the glass and then made a stirring motion around the inside rim. She agreed with the interviewer that her father "moved his finger around" inside her vagina.

The interviewer showed daughter the male anatomical diagram and asked, "Now can you show me any other parts of daddy's that he touched your colita with?" Daughter indicated that Giron–Chamul had touched her with his "colita" and drew a line from the penis on the male diagram to the vagina on the female diagram. It had happened at Giron–Chamul's house on her "big bed," and he took a bath afterward because "[h]e was smelling dirty." Daughter denied, however, "see[ing] anything come out of daddy's colita." Daughter stated her father "said sorry" and "said he [was her] best friend."

The interviewer asked daughter whether Giron–Chamul "touched [her with] any other parts of his body." Daughter pointed to the mouth on the male anatomical diagram. Initially, she said she did not know what part of her own body Giron–Chamul had touched with his mouth, but then she indicated that it was on her "boobs."

Finally, the interviewer showed daughter the picture she had drawn at the daycare provider's house. Daughter explained that it depicted Giron–Chamul "laying back" and herself, and she also stated that both tongues were his. She said a few times that she did not know what he was...

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