People v. Melendez

• Decision Date: 04 October 2012
• Docket Number: B230672
• Court: California Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. PABLO MELENDEZ, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. PABLO MELENDEZ, Defendant and Appellant.

B230672

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

Dated: October 4, 2012

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BA356884)

APPEAL from a judgment of the Superior Court of Los Angeles County, Stephan Marcus, Judge. Affirmed in full with directions.

Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Marc A. Kohm and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant, Pablo Melendez, appeals the judgment entered following his conviction for kidnapping to commit child molestation, and lewd act on a child (2 counts), with prior serious felony conviction and Three Strikes findings (Pen. Code, §§ 207, subd. (b), 288, 667, subd. (a)-(i)).¹ Melendez was sentenced to state prison for a term of 88 years to life.

The judgment is affirmed.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.

1. Prosecution evidence.

a. The current charges.

Cynthia L. was 13 years old at the time of trial. She testified that in May 2009,² when she was 12 years old, she regularly spent her after-school hours with her friend Maria. Maria's mother would collect both girls at school, bring them to her house, and Cynthia's mother would pick her up later in the day. Defendant Melendez, who was almost 30 years old, lived with his family in a house behind Maria's house. At the request of Maria's mother, Cynthia and Maria sometimes went to Melendez's house on errands, e.g., to borrow ice or use the microwave. Cynthia never went to Melendez's house without Maria.

During one such visit to the back house, Melendez said Cynthia was pretty and asked if she had a boyfriend. Another time, he asked if she "was down to fuck with him." On one occasion, Melendez grabbed Cynthia's vagina through her clothing and squeezed it. Another time, Melendez grabbed Cynthia's chin and tried to kiss her on the mouth. Cynthia turned her face away and the kiss landed on her cheek.

On another occasion, Melendez grabbed Cynthia's hand and pulled her into his bedroom, which was in a laundry room located off the kitchen. Asked to estimate the distance between Melendez's bedroom and where she had been standing in the kitchen, Cynthia pointed to a courtroom landmark which the trial court noted was "approximately . . . 13 to 15 feet away." Melendez pushed Cynthia into his bedroom and she fell onto the bed: "[A]fter that he was closing the door. He tried to lock it. That's when I actually jumped off of the bed, and I ran." When she tried to leave the bedroom, Melendez "was blocking the door" and "getting the door handle so I won't open it." Cynthia managed to push Melendez out of the way and run back into the kitchen, where she grabbed Maria and together they fled.

Melendez cautioned the girls that if they told anyone about what had happened he would do something to them or their families. Cynthia told someone at school about what happened and then she spoke to the police.

Maria, who was 12 years old at the time of trial, testified that the first time she visited Melendez's house she had gone by herself: "He told me to go inside his room, and I told him no." Another time, Melendez asked Maria if she took drugs, if she was a virgin, and whether she could "hook him up with Cynthia." Melendez said "if I hooked him up with Cynthia, he would give me stuff around holidays where no one could suspect something." Melendez also told Maria "that, if . . . I ever wanted to fuck, that he will be right there."

Maria was present when Melendez kissed Cynthia on the cheek and when he "touched her in the private." Maria expressly testified she saw Melendez touch Cynthia with his right hand "[i]n her private." Maria eventually related these events to people at school and then to her mother. She did not say anything right away because she was scared "[t]hat my mom will get mad and that he might do something to us."

Cynthia's mother Estela testified about the arrangement whereby Maria's mother would pick up Maria and Cynthia after school, take them to her house, and then Estela would pick Cynthia up later in the afternoon. On one of those rides home, Cynthia asked Estela "if I believed in the threats of cholos." Cynthia said she was frightened because someone had threatened her. She said this man "started to touch her and was kissing her and was fondling her body," and he said "if she spoke, that he was going to do something to us, that he had people outside that he could send." While relating this, Cynthia "was very nervous, very scared. She started to cry."

b. The past sexual assault allegation.

Angela R. testified that in 1994, when she was 14 years old, she was a runaway living on the streets. She knew Melendez as a classmate from school. They saw each other late one night as Angela was unsuccessfully trying to arrange for a friend to pick her up. Melendez suggested she try a better pay phone located near Hoover High School and Angela agreed. While waiting for her friend to call, Angela noticed her purse was missing. After pretending to help her look for it, Melendez acknowledged he had taken it. He then said, "I'm not going to give you your purse unless you fuck me." Angela said the purse wasn't that important and walked off. Melendez followed her, said he was only joking and returned the purse.

Melendez then said, "Well, what are you going to do? I know you don't have a place to stay now." He said his apartment complex was nearby and she could sleep there. He promised not to touch her. At the complex, Melendez showed her a place underneath a stairwell. Angela slept for a short time until Melendez returned and woke her up. Angela then started walking away from the apartment complex and Melendez followed her. He kept saying he wanted to fuck her, but Angela refused. Finally, Melendez said: "Well, put it this way. You have one option. . . . Either you're going to fuck me my way, the easy way; or two, I'm going to have to rape you. . . . What will it be?" When Angela again refused, Melendez said, "Fuck you, bitch," and started choking her with both hands. He ripped her shirt and her bra, pushed her to the ground, and raped her. Angela did not immediately go to the police because she was a runaway.

Detective Robert Zaun testified that on March 7, 1994, he was dispatched to take a rape report. Angela told him that on February 21, 1994, she had been raped and she took him to the crime scene. Zaun searched the area and found two buttons on the ground. Angela said they looked like the buttons that had been ripped from her shirt. Zaun subsequently compared the two buttons to the shirt Angela said she had been wearing that night and the buttons were identical.

The parties stipulated Melendez was never prosecuted for raping Angela.

2. Defense evidence.

Melendez's father testified his son had been living in his home in May 2009. There was a laundry room located right off the kitchen. A part of the laundry room had been turned into a sleeping area for Melendez. His father testified it was only a couple of feet from the laundry room to the "wash area" of the kitchen. He also testified there was no locking mechanism on the laundry room door.

Melendez's niece also lived with Melendez and his father. She occasionally socialized with Maria and Cynthia. About three weeks before Melendez's arrest on May 21, 2009, Cynthia wanted the niece to ask Melendez if he would be Cynthia's friend.

CONTENTIONS

1. The trial court erred by admitting evidence of Melendez's prior sexual offense against Angela.

2. The trial court erred by instructing the jury that evidence admitted as a "fresh complaint" could prove the truth of the matter asserted.

3. The trial court erred by admitting a police officer's report under the hearsay exception for past recollection recorded.

4. There was insufficient evidence to sustain the kidnapping conviction.

DISCUSSION

1. Admission of prior sexual offense evidence.

Melendez contends the trial court erred by admitting Angela's testimony about the 1994 rape. This claim is meritless.³

a. Legal principles.

Evidence Code section 1101, subdivision (a), provides that, in general, "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." But there are exceptions to this general rule, one of which is covered by Evidence Code section 1108, subdivision (a): "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352."⁴

Evidence Code section 1108 allows propensity evidence "to assure that the trier of fact would be made aware of the defendant's other sex offenses in evaluating the victim's and the defendant's credibility." (People v. Falsetta (1999) 21 Cal.4th 903, 911.)⁵ "In a case in which a defendant is accused of a sexual offense, Evidence Code section 1108 authorizes the admission of evidence of a prior sexual offense to establish the defendant'spropensity to commit a sexual offense, subject to exclusion under Evidence Code...