People v. Marokity, B213631 (Cal. App. 3/9/2010)
| Decision Date | 09 March 2010 |
| Docket Number | B213631. |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. GUSTAV MAROKITY, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Appeal from a judgment of the Superior Court of Los Angeles County, No. LA053936. Kathryne Ann Stoltz, Judge. Affirmed.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson, Lawrence M. Daniels, Joseph P. Lee and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Gustav Marokity appeals from the judgment entered upon his convictions by jury of two counts of committing a lewd and lascivious act on a child under the age of 14 (Pen. Code, § 288, subd. (a)).1 The trial court sentenced him to prison for the upper term of eight years on count 1 and to a consecutive one-third of the midterm, or two years, on count 2. Appellant contends that (1) the trial court erred in failing to instruct the jury sua sponte on assault and/or battery as lesser included offenses of section 288 subdivision (a), (2) the trial court erred in allowing admission of evidence that appellant possessed pornographic videotapes, including some containing underage girls, (3) he suffered ineffective assistance of counsel due to his attorney's failure to request a limiting jury instruction with respect to the pornographic videotapes evidence, (4) he suffered ineffective assistance of counsel due to his attorney's failure to raise meritorious hearsay and confrontation clause objections to extrajudicial statements of the nontestifying minor victim, (5) the trial court erred in failing to exclude those extrajudicial statements, (6) the trial court erred in failing to appoint separate counsel to represent appellant to determine whether there were grounds for filing a motion for new trial on the basis of ineffective assistance of counsel, (7) reversal is required as a result of the aforementioned cumulative errors, (8) the matter must be remanded for resentencing because application of People v. Sandoval2 or the post Cunningham3 legislation to appellant's sentencing constituted an ex post facto violation or improper judicial enlargement of punishment that violates the California and United States Constitutions, and (9) the matter must be remanded for resentencing because the trial court abused its discretion in imposing an upper term sentence on count 1.
We affirm.
Prosecution evidence
In 2000, appellant married Mar., a Ukrainian pediatrician, in Hungary, where he met her. At the time, appellant was visiting Hungary, his birthplace. He had been a United States resident since 1983 and had become a United States citizen. After their marriage, Mar. moved to the United States and lived in appellant's home in Van Nuys. In 2001, their son, A., was born and, in 2002, their daughter, K. was born.
Sexual abuse
According to Mar. appellant was very affectionate with his children. When A. was naked, appellant kissed and smelled A.'s stomach, thighs, genitalia, buttocks and the area between A.'s genitals and thighs, several times a day. When K. was born, appellant did the same to her. When he engaged in this behavior, Mar. claimed that appellant appeared to be very excited and "not really there." She told him that his conduct was inappropriate and could result in his going to jail. Appellant called her "crazy" and said, "I just love my child."
The couple often argued about appellant's behavior, and the police were called on a couple of occasions. On one such occasion, in February 2003, Mar. called the police. Responding officers gave her a child abuse hotline number, which she called. The Los Angeles County Department of Children and Family Services (DCFS) sent a social worker to the residence. At the social worker's suggestion, Mar. and the children moved out.
During the separation, appellant initially had monitored visitation with his children. He later obtained unmonitored visitation and shared custody. While the Children's Court proceedings were ongoing, Mar. met a police officer with the Redondo Beach Police Department. In 2004, she moved to reside with him.
After appellant's unmonitored visitation began, Mar. noticed that A. began displaying anxiety and anger, he and K. were having nightmares, and both children exhibited "sexualized behavior." A. would kiss K. on her lower stomach, close to her genital area, and K. would lick A. and Mar.'s boyfriend's hand and arm and lie on A. As a result, Mar. wanted to start the children in therapy, but appellant refused to consent.
On May 25, 2005, during preschool nap time, A. pulled down his pants and rubbed his penis "back and forth" with his hands until he was stopped by the teacher. A. had never done anything like that at school before. When questioned, he said he learned it from "my dad." He also said that "my dad touches [K.'s] private parts" or "cucu." When the teacher gave A. a doll to demonstrate, he pointed to its genital area and said, "[appellant] touched my penis and my sister's cucu [vagina] like this[.]" The incident was reported to Mar. and the police.
Interviews of the children
Mar. picked up the children from preschool and took them to Harbor UCLA Medical Center, where they were examined and interviewed by Dr. Martin Talamo, a medical doctor. A. told him that appellant touched A.'s penis, inserted his pinky finger into A.'s anus, and that there was "poo poo" on appellant's finger. A. reported rectal discomfort or pain. Dr. Talamo diagnosed A. with Phimosis, a condition in which the foreskin on an uncircumcised penis cannot be fully retracted from the penis head, sometimes leading to infections. A person with Phimosis must clean his penis by moving the foreskin back and forth, which can cause discomfort. While pointing to her vagina, K. told Dr. Talamo that her father had touched her "cucu" and that she saw her father touch A. Dr. Talamo's examination could neither confirm nor negate sexual abuse. He recommended that the children have a detailed, follow-up sexual-abuse examination.
On May 31, 2005, Mar. took the children to Sandra Elvik, a pediatric nurse practitioner, for the sexual-abuse examination. During the examination, A. stated, "Don't touch my peanuts," referring to his penis, and, "Don't hurt my peanuts like my dad does." When asked how appellant hurts his penis, A. demonstrated by taking the loose foreskin of his uncircumcised penis and vigorously shaking it back and forth. A. complained about pain in his anal area and said that his father stuck his finger in his anus and had "poop" on it. Elvik examined A. with a colposcope and saw a fissure near his anus. At the top of the fissure was a red one-quarter-inch abrasion. The findings could have been caused by sexual abuse or by many other things. K. told Elvik that appellant had stuck his thumb into her genital area. A colposcope examination of K.'s anus area was normal. Her examination could neither confirm nor negate sexual abuse.
Los Angeles Police Department Detective Katherine Gosser began an investigation. On September 27, 2005, she and Deputy District Attorney Hilleri Merritt interviewed the children. A. repeated his claims that his father inserted his pinky finger in A.'s anus, and, touched his "peanuts" numerous times. A. said that he saw his father insert his little finger in K.'s "cucu." K. spread her legs, touched her thumb to her groin area and demonstrated how appellant put his finger in her "cucu."
On November 8, 2007, Detective Gosser reinterviewed A. to see if he still remembered the incidents in the event he had to testify. A. repeated what he had previously reported appellant had done to him. He also said that he saw appellant enter K.'s room while she was asleep, leaving the door slightly open. A. peeked and saw appellant putting his finger in K.'s anus or vagina.4 He expressed reluctance to testify and asked, "What if I lied?" When asked if he had lied about anything, he first said, "Just about the finger," and expressed concern about being responsible for putting his father in jail. After the detective told A. he was not responsible and to just tell the truth, A. said he had not lied, and the story about the finger was true.
A.'s trial testimony
At trial, A. recanted most of his pretrial statements. He testified that appellant never touched his penis or any part of his body in a way he did not like. Appellant never did anything to his anus, and A. did not recall telling anyone otherwise. He never saw appellant do anything to his sister and never told anyone that he did. A. did not recall testifying at appellant's preliminary hearing that appellant played with A.'s penis, inserted his finger in A.'s anus, inserted his finger in K.'s "cucu," that K. said that it hurt, and that K. screamed.
Appellant's interview and search of his prison cell
In September and November 2005, Detective Gosser interviewed appellant. The first time, appellant went to the police station on his own, with videotapes he had made to show in Children's Court that he was a good father. Appellant said that A. would frequently grab, touch or play with his own penis, and appellant would tell him to stop. One of the videotapes showed this. Appellant admitted being very affectionate with his children and kissing them on their thighs and buttocks. He said that that was acceptable in Hungary. He denied having any sexual intent when doing so. He said that he might have touched inside his daughter's vagina as he cleaned her and explained that he got K.'s "poop" on him when she defecated on herself, and he had to give her a bath.
On July 18, 2008, during a routine search of appellant's jail cell, an officer found an envelope containing contraband...
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