People v. Kassaz
| Decision Date | 29 March 2023 |
| Docket Number | F083400 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ARMANDO HICHAM KASSAZ, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County, No VCF365333 Nathan G. Leedy, Judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Armando Hicham Kassaz was charged with 75 counts of lewd acts on a child under 14 years of age in violation of Penal Code section 288, subdivision (a).[1] Each count contained a special allegation that defendant committed the lewd act on multiple victims within the meaning of section 667.61, subdivision (e)(4) and that he engaged in substantial sexual conduct within the meaning of section 1203.066, subdivision (a)(8).[2]
Prior to a verdict, the prosecution moved for dismissal of 11 counts (counts 13, 23-24, 29, 50-52, 63-64, 73, and 75) which was granted. The jury subsequently found defendant guilty of the remaining 64 counts and found true all special allegations. The trial court sentenced defendant to an aggregate term of 960 years to life (15 years to life on all 64 convictions imposed consecutively). (§ 667.61, subd (b).) Among other fines and fees, the trial court ordered defendant to pay a $1,000 fine under section 294, subdivision (b), and awarded defendant 1,408 days of presentence credits.
Defendant argues the trial court prejudicially erred by allowing the prosecution to admit defendant's police interrogation because defendant had not knowingly and intelligently waive his constitutional rights under Miranda[3] because they were read to him in English rather than Spanish, which is defendant's native language. Defendant also maintains a portion of N.K.'s testimony constituted impermissible character evidence that was admitted in violation of Evidence Code section 1101, subdivision (a). The error in admitting this evidence was so prejudicial it resulted in a due process violation under the Fourteenth Amendment of the federal Constitution. Finally, defendant argues the trial court miscalculated his presentence credits and imposed an unauthorized fine under section 294, subdivision (b).
We affirm. The totality of the circumstances indicate defendant was proficient in English and could understand his rights and appreciate the consequences of waiving them. Moreover, any error in admitting a portion of N.K.'s testimony in violation of Evidence Code section 1101 did not constitute a federal due process violation and was harmless under the standard articulated in People v. Watson (1956) 46 Cal.2d 818 (Watson). The parties agree, and we concur, that defendant's presentence credits were miscalculated and that the fine imposed under section 294, subdivision (b), was unauthorized and must be stricken.
Defendant was charged with committing lewd and lascivious acts with three of his children when they were under the age of 14 years old. The abuse was reported to the police in March 2018 by defendant's daughter, Ge., who was 31 years old at the time. Her older sister, Gi., and her younger brother, G.K., were subsequently interviewed by police and detailed how defendant had sexually abused them.
According to Ge.'s trial testimony, her parents moved to the United States from Bolivia when she was three years old. They settled near Los Angeles and then relocated to Visalia before Ge. started grade school. They first lived at a house on Harvard Street and then later moved to a house on Tracy Street. Her father owned a liquor store where both of her parents worked. Defendant worked during day, and Ge.'s mother, N.K., worked from the late afternoon until about 9:00-10:00 p.m. Defendant started molesting Ge. when she was nine years old during times when N.K. was working. She remembered him telling her he had to teach her things about her body. This began a routine where she would have to go into his bedroom every Wednesday, and each time more clothing would come off or more touching or rubbing of her private areas would occur. Between the ages of 9, 10 and 11 years old, Ge. described multiple episodes of her father asking her to touch his penis with her hands and her mouth. He also orally copulated her genitals. She estimated this abuse happened hundreds of times; he would frequently ejaculate during their encounters and she experienced orgasms, which he asked if she liked.
When she was 12 years old, she told defendant she wanted to stop. He stopped touching her, but then started ignoring her altogether and said he could not be her father anymore. Ge. felt the sexual aspect of their relationship was the condition to having any type of relationship with him. So, when she was 13 years old, Ge. acquiesced to continuing the sexual relationship, and he then attempted to insert his penis into her vagina. She asked him to stop due to pain. On a subsequent occasion, he fully inserted his penis into her vagina. Afterward he inspected the sheets for blood and commented that when he had done this to her sister, there was blood on the sheets. She also recounted incidents where he sodomized her with his penis, which happened the first time when she was 13 years old and occurred less than five times total. Ge. detailed an incident where defendant engaged her and Gi. in sexual acts at the same time. Ge. also recounted an incident inside the family's liquor store when she was 14 or 15 years old where defendant touched her vagina. Additionally, Ge. described having intercourse with defendant in a Las Vegas hotel room when Ge. was 15 years old. Ge. thought some of the abuse was videotaped because defendant had a tripod in the bedroom, and she had seen the red light illuminated on it and had assumed it was recording. Although she never saw a recording of herself on a videotape, she saw several of her parents having sex.
Before she was 12 years old, Ge. knew defendant was engaging her older sister Gi. in sexual acts because defendant would comment on things he did with Gi. and compare her to Ge. The two sisters never talked about what was happening to them until Ge. was 15 years old. Their mother, N.K., asked Ge. if defendant was touching her, and Ge. confirmed it. N.K. went to confront defendant at the store, and the abuse stopped and never resumed. Ge. and N.K. discussed the abuse regularly after N.K. found out; sometimes N.K. would blame Ge. and say it was her fault she had attracted him; other times she would say she could not believe it and said divorce was not an option.
When she was 18 or 19 years old, Ge. told defendant's brother about the abuse. Instead of being upset for her, he wanted Ge. to describe how it felt, which made Ge. feel violated and betrayed. The next day, the uncle told Ge. that if she ever told anyone about the abuse he would be on defendant's side. Ge. knew then that she had to stay silent, and she would not have the support of her extended family. She also was not a citizen and was concerned that if she reported the abuse she would be deported.
Ge. graduated from college in 2010 and got married in 2013; defendant paid for her college expenses. She did not have permission to move out of the house until she was married; her parents wanted her at home, so she stayed. Ge. pursued mental health therapy and kept journals in 2009 and 2010 where she documented some of the abuse from her childhood; she gave these to the investigator officer, and they were admitted at trial. Ge. has children, and she has maintained contact with defendant. Ge. claimed defendant has not been allowed to acknowledge or say hello to her daughter, nor has he been allowed to touch, hold or be alone with her daughter. In March 2018, Ge. told a group of family members about the abuse, including some cousins on defendant's side of the family and defendant's sister. Ge. was encouraged by this group to go to the police, and she decided to report because she was concerned for other children in the family. When she reported the abuse, she knew defendant had filed for divorce in Bolivia in October 2016.
Gi., defendant's oldest child, was 36 years old when she testified at trial. The family came to the United States when she was five years old. Her parents worked at a liquor store they owed in Visalia. Defendant worked in the morning, N.K. worked in the afternoon, and then defendant would go back at night to help N.K. close the store. N.K. never closed on her own, and they would come home at night together. Thus, defendant would be at home with the kids in the evening while N.K. was at work. At first, defendant's brother had also worked at the store, but there was "some drama between them," and apparently her uncle did not remain involved with the store.
Gi. was five or six years old when she first had sexual contact with defendant. They were at her grandparents' house in Bakersfield; she was sleeping and when she woke up, her hand was on defendant's penis with his hand over hers to keep it there. Gi. pretended to be asleep, and nothing else happened. When she was 9 and 10 years old, defendant elicited her to touch his penis on multiple occasions. When she was 10 years old, defendant introduced her to oral sex. The first time he had her perform oral sex on him, it was at his brother's apartment. By the time she was 11 years old she was touching his penis multiple times per week, which continued when she was 12 years old. The touching mostly occurred in his bedroom. ...
To continue reading
Request your trial