People v. Marquez

• Decision Date: 27 September 1994
• Docket Number: No. B076149,B076149
• Citation: 28 Cal.App.4th 1315,33 Cal.Rptr.2d 821
• Parties: The PEOPLE, Plaintiff and Respondent, v. Servando MARQUEZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 821

33 Cal.Rptr.2d 821

28 Cal.App.4th 1315

The PEOPLE, Plaintiff and Respondent, v. Servando MARQUEZ, Defendant and Appellant.

No. B076149.

Court of Appeal, Second District, Division 5, California.

Sept. 27, 1994.

Certified for Partial Publication ^*

[28 Cal.App.4th 1317] Brian DeAmicis, Sacramento, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., and Roy C. Preminger and David A. Wildman, Deputy Attys. Gen., for plaintiff and respondent.

GODOY-PEREZ, Associate Justice.

Defendant and appellant Servando Marquez appeals from the judgment entered following a jury trial that resulted in his conviction of three counts of lewd conduct upon a child under the age of 14. He contends: the trial court erred in (1) limiting defense counsel's cross-examination of a codefendant who pleaded guilty to molesting the victim; (2) refusing to instruct the jury that the codefendant had molested the victim during the same time period in which defendant was accused of having done so; (3) giving CALJIC No. 10.41; and (4) failing to state reasons for imposing consecutive sentences. In the published portion of this opinion, we conclude that CALJIC No. 10.41 correctly defines a lewd act within the meaning of Penal Code section 288, subdivision (a) as "any touching ... with the specific intent to arouse, appeal to, or gratify the sexual desires of either party."

In the unpublished portion of the opinion, we reject defendant's other contentions and modify the judgment to correct an error in the calculation of presentence custody credits.

PROCEDURAL BACKGROUND

Defendant was charged by information with committing a lewd act upon Roger G., a child under the age of 14, on and between April 19, 1991 and September 12, 1991 (Pen.Code, § 288, subd. (a); counts 2 and 3), and with the same offense occurring on and between September 10, 1991 and September 12, 1991 (Pen.Code, § 288, subd. (a); count 7.) ¹ The jury found defendant guilty on all three counts and he was sentenced to a total of ten years in prison comprised of the six year midterm for the base term on count one; a consecutive two years (one-third the midterm) on count two; and a consecutive two years (one-third the midterm) on count three. Defendant was given presentence custody credit of 822 days and was ordered to pay $200 into the State Restitution Fund pursuant to Penal Code section 294.

FACTS

Viewed in accordance with the usual rules on appeal (People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal.Rptr. 228, 721 P.2d 110), the evidence established that on September 11, 1991, and since the previous April, defendant had been living with his sister, Angela Ortega, and Ortega's two-year-old son, Roger G., in Ortega's Los Angeles apartment. Ortega's boyfriend, Enrique Zamora, was a frequent visitor at the apartment and sometimes slept there. Zamora was very strict with Roger and very rough. Ortega saw Zamora beat Roger, twist his knuckles into Roger's back, and squeeze Roger's face between his hands.

Ortega had also seen defendant spank Roger. Defendant sometimes bathed Roger and changed his diapers. According to Ortega, defendant knew how to do these tasks properly.

When Ortega left her apartment and went upstairs during the morning of September 12, 1991, defendant was left alone with Ortega's children. When Ortega returned to the apartment half an hour later, defendant was outside and Zamora was with the children inside the apartment. Ortega left again and went back upstairs to another apartment in the building. She returned about an hour later when she learned that the police were at her apartment.

Los Angeles Police Detective Penny Beaman and her partner Alfred Delgado went to Ortega's apartment on the afternoon of September 12, 1991, to investigate a report of child abuse. Beaman removed Roger's diapers to examine him for signs of abuse. She observed blood and bruising between Roger's buttocks and fresh blood around his red and swollen anus. His rectum was bleeding and appeared to have been lubricated by a substance such as Vaseline. Photographs taken of Roger that day by police reveal these injuries as well as bruises and abrasions on his face, his buttocks, and his upper legs. Beaman took Roger into protective custody.

The next day, Dr. Lynne Ticson, the lead physician at the McClaren Children's Center, examined Roger. Ticson observed multiple old and new bruises on Roger's face and body, including his penis; as well as abrasions, a blue and swollen left index finger and lacerations across several parts of his rectum. Some of the rectal tears were still bleeding. According to Ticson, the tears in Roger's rectum were consistent with someone having tried to insert a penis into his rectum. Such bruising usually heals within 24 to 48 hours. Ticson opined that Roger may have been repeatedly sodomized because he had "lost sphincter or rectal control."

On September 16, 1991, Roy Ortiz, a civilian interviewer for the Los Angles Police Department, interviewed defendant at the police station. Defendant was not in custody; he was informed of his constitutional rights and was told that he could leave at any time. A recording and transcript of the interview were made.

Defendant told Ortiz that he used to bathe Roger. He admitted hitting Roger but denied inserting his penis into Roger's anus. Later, defendant told Ortiz that he had probably put his finger into Roger one, two or three times, approximately up to the second knuckle of his middle finger. Defendant explained that he did so to "see what's in there." Defendant said he had done it once before to the baby of a friend. Defendant maintained he did not do it "to have sex to him or to get hot with him or to hurt him or make him bleed."

Initially, defendant denied ever placing his penis inside Roger, but eventually stated that his penis might have touched Roger by accident two or three times. Later, defendant explained that, two or three times, he just tapped or poked his penis at Roger's butt "to see what he would say." At Ortiz's request, defendant drew a diagram of this act. The resulting drawing indicated that defendant had placed one-half the tip of his penis into Roger's anus. Defendant said that the last time he had done this was the previous week. Defendant also admitted hitting Roger.

After Ortiz completed his interview with defendant, Los Angeles Police Officer Sylvia Trundle re-interviewed defendant. Unknown to defendant, Trundle had listened to a portion of defendant's interview with Ortiz through a speaker. Defendant told Trundle that he had told Ortiz "that he had stuck his finger in Roger's butt, and that he had attempted to stick his penis in." Defendant said this occurred the day before the police came to the apartment, which Trundle understood meant September 11, 1991. Defendant told Trundle that he poked his penis at Roger and "rubbed the inside of the butt area." He drew another drawing for Trundle to illustrate what had occurred. At Trundle's request, defendant agreed to write down what he had told her. Accordingly, defendant wrote:

"I was attempting to stick 1X my penis in Roger butt stick my fenger [sic ] in his butt 2X"

Testifying during the prosecution's case-in-chief, Zamora explained that when he was in the bathroom with Roger, he lifted Roger up and his finger accidentally went into Roger's anus. Zamora pleaded no contest to the charge of violating Penal Code section 288 between September 10 and September 12, 1991. According to Zamora's lawyer, Zamora did so without admitting any guilt because Zamora felt it was in his best interest to do so.

DISCUSSION

I & II ^**

III

CALJIC No. 10.41

Defendant contends that the trial court incorrectly instructed the jury on the definition of a lewd or lascivious act for purposes of Penal Code section 288, subdivision (a). Without objection from defense counsel and pursuant to CALJIC No. 10.41, the jury was instructed as follows: "Defendant is accused in Counts I, II, and III of the information of having committed the crime of lewd act with child, a violation of Section 288(a) of the Penal Code. [p] Every person who willfully and lewdly commits any lewd or lascivious act upon or with the body, or any part or member thereof, of a child under the age of fourteen years, with the specific intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, is guilty of the crime of committing a lewd or lascivious act upon the body of a child in violation of Section 288(a) of the Penal Code. [p] A lewd or lascivious act is defined as any touching of the body of a person under the age of fourteen years with the specific intent to arouse, appeal to, or gratify the sexual desires of either party. [p] To constitute a lewd or lascivious act it is not necessary that the bare skin be touched. The touching may be through the clothing of the child. [p] The law does not require as an essential element of the crime that the lust, passions, or sexual desires of either of such persons be actually aroused, appealed to, or gratified. [p] It is no defense to this charge that a child under the age of fourteen years may have consented to the alleged lewd or lascivious act. [p] In order to prove the crime, each of the following elements must be proved: [p] 1. A person committed a lewd or lascivious act upon the body of a child, [p] 2. The child was under fourteen years of age, and [p] 3. Such act was committed with the specific intent to arouse, appeal to or gratify the lust, passions or sexual desires of such person or of the child." (Emphasis added.) ³

In support of his contention that CALJIC No. 10.41 incorrectly defines a lewd or lascivious act within the meaning of the statute, defendant cites People v. Wallace (1992) 11 Cal.App.4th 568, 575-580, 14 Cal.Rptr.2d 67 published...