People v. Gomez
| Decision Date | 31 August 2017 |
| Docket Number | F072439 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ADALBERTO MACIAS GOMEZ, Defendant and Appellant. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Tulare County. Gary L. Paden, Judge.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Adalberto Macias Gomez was convicted of multiple counts of child molestation against A.C. and given both an indeterminate and a lengthy determinate prison sentence. On appeal, he contends his confession to investigators was improperly admitted into evidence in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) because although he was told of his rights to remain silent and to counsel, he was not expressly advised of his right to have counsel present before and during interrogation. Defendant further argues his confession was involuntary because the detectives who questioned him overcame his will in their interrogation methods. Defendant contends the trial court improperly excluded his cross-examination of the victim's mother, Claudia L., about the property she was acquiring from him as a result of his arrest. Defendant argues this line of questioning was necessary to establish Claudia's improper motive in testifying against him.
Defendant contends the trial court erred in what he argues is a sua sponte duty to instruct the jury on Child Sexual Abuse Accommodation Syndrome (CSAAS) and evaluation of expert testimony. Defendant argues the prosecutor committed misconduct by misstating the law during closing argument. Defendant asserts the foregoing issues led to cumulative error. Defendant contends the trial court erred in denying his request to dismiss his retained counsel at the end of the trial and in denying his motion for a new trial based on the ineffective representation of his trial counsel. Defendant alleges sentencing errors, which are conceded by the People, with the exception of whether the trial court property imposed a restitution fine on count 18 pursuant to Penal Code section 294, subdivision (b).1
After a jury trial, defendant was convicted on April 17, 2015, of 12 counts of committing forcible lewd acts upon a child under 14 years old (§ 288, subd. (b)(1);counts 1-12), one count of aggravated sexual assault of a child under 14 years old involving sodomy (§ 269, subd. (a)(3); count 13); four counts of committing lewd acts on a child under 14 or 15 years old (§ 288, subd. (c)(1); counts 14-17), and one count of forcible sodomy on a minor aged 14 years or older (§ 286, subd. (c)(2)(C); count 18). On September 9, 2015, the court denied defendant's motion for a new trial and conducted the sentencing hearing.
The trial court sentenced defendant to a determinate state prison term consecutively as follows: eight years in prison each on counts 1 through 12, terms of eight months in prison on counts 15 through 17, two years on count 14, and a consecutive term of nine years on count 18. Defendant's total determinate sentence is 109 years. The court sentenced defendant on count 13 to an indeterminate term of 15 years to life.
The court imposed various fines and fees, including a $10,000 restitution fee pursuant to sections 1202.4, subdivision (b), and 1202.45 (suspended), and a $1,000 restitution fee pursuant to section 294, subdivision (b). The court granted presentence custody credits of 518 days for time served prior to sentencing plus conduct credits of 77 days, for total custody credits of 595 days.
Defendant lived with his girlfriend, Claudia L., their mutual children, and A.C., Claudia's daughter from a previous relationship. Claudia had lived with defendant since 2004 or 2005. In 2007, they moved into a house purchased by defendant.
Defendant began molesting A.C. when she was 10 years old. He touched her over her clothes. Defendant touched her on her breasts, legs, and buttocks, both over and under of her clothing. Defendant started touching A.C.'s buttocks under her clothing when she was 11 years old. Defendant did this more than two times when A.C. was between the ages of 11 and 13 years old. Defendant touched A.C.'s buttocks more than two times when she was 14 years old. When A.C. was between the ages of 11 and 13 years old, defendant touched her breasts five times both over and inside her clothing.Most of the time when defendant touched her, A.C. would tell him no and try to walk away. Defendant would grab her hand and pull her back.
Defendant touched A.C.'s breasts a lot after she was 14 years old. When defendant touched A.C.'s buttocks, she would tell him no. Defendant displayed his penis to A.C. when she was 12 or 13 years old.
When A.C. was between 11 and 13 years old, defendant more than twice took her hand and placed it on his penis. After A.C. turned 14, defendant had her touch his penis four or five times. Sometimes, defendant moved A.C.'s hand on his penis, other times she moved it on her own. Defendant also touched A.C.'s vaginal area both over and under of her clothing more than two times from the time she was in fifth grade until after she turned 14. Starting when A.C. was 9 or 10, defendant would put his finger in her buttocks.
When A.C. was 13 years old, defendant put his penis into her buttocks more than four times. Defendant took A.C. to the living room, pulled her pants down, bent her over, and insert his penis into her buttocks. A.C. described the pain she felt as five or six on a scale of one to ten. When defendant was done, A.C. could feel his ejaculation. On one occasion, after he had forced A.C. to have anal sex with him when she was in fourth or fifth grade, defendant told A.C. he thought she was pregnant, and he made her drink something like a chocolate drink.
On multiple occasions, defendant kissed A.C. on her mouth, breasts, neck, arms, and buttocks. When A.C. was 12 or 13 years old, defendant tried to convince her to perform oral sex on him. Defendant told A.C. that if she sucked his penis, he would take her and the other children to the park. Whenever A.C. told defendant no, he got mad at her and would not accept her refusal. Defendant made her perform oral sex on him at least four times, maybe more than five times, before she turned 14 and more than five times after she turned 14.
Defendant told A.C. she would go to jail if she disclosed the molestation when he first began touching her. When A.C. told defendant she was going to tell her mother about the molestation, defendant again told her she would go to jail if she told anyone. Describing defendant's threat that A.C. would go to jail, she said, "he would always tell me that." A.C. was afraid of defendant. He would threaten to hit her when she refused to perform sexual acts. Defendant would gesture as if he was going to hit her, though he never actually struck her. Defendant molested A.C. at least once a month, making it difficult for A.C. to remember all of the acts.
Claudia explained that on a number of occasions, defendant would come home and go to A.C.'s room at night. Claudia described one such incident where defendant came home drunk, went straight to A.C.'s room, and stood close to her while she was in bed sleeping. Defendant began to pick up the covers when Claudia said, "What the fuck are you doing?" Claudia described defendant as "acting stupid," claiming he thought he was in the bathroom.
On April 9, 2014, Claudia got up early in the morning for an exercise class she regularly attended. She left the house at about 5:30 a.m., but the class was cancelled, so she went to the bank and returned home about a half an hour early. When Claudia entered the house, she saw defendant running in his underwear from the kitchen to his bedroom. Claudia heard the bedroom door slam, and went to the room to see what defendant was doing. Defendant was in the bed under the blankets.
Claudia went to A.C.'s room and noticed A.C. was very nervous. She asked A.C. what was going on, and A.C. looked at the floor and said nothing was going on. A.C. would not look at Claudia while speaking to her. Claudia returned to defendant's room to ask him what had happened. He claimed he had heard a noise from the roosters they kept and had gone into the kitchen to check on them.
Claudia went back to talk to A.C., who continued to act strangely. Claudia told A.C. she thought something had happened and she was going to call the police. A.C.became very scared, burst into tears, and was "crazy crying." A.C. told Claudia she did not want to go to jail. Claudia again asked A.C. what was going on. A.C. reported defendant had been rubbing up against her in the kitchen and touching her legs. Claudia called law enforcement.
Detective Katherine Garcia of the Tulare County Sheriff's Office responded to the call. She contacted A.C., who was extremely emotional, crying, and terrified. Garcia questioned A.C. four times that day.
Claudia's child, A.M., who was 10 at the time of trial, told the police that on the morning defendant was arrested, A.M. saw defendant try to kiss and touch A.C. A.M. saw A.C. push defendant away. A.M. also stated that on a previous occasion, defendant went into his bedroom with A.C. and locked the door. A.M. tried to get into the room, but could not open the door.
Defendant contends the...
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