People v. Miranda

• Decision Date: 11 January 2011
• Docket Number: No. B224163.,B224163.
• Citation: 199 Cal.App.4th 1403,2011 Daily Journal D.A.R. 15403,132 Cal.Rptr.3d 315,11 Cal. Daily Op. Serv. 12995
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Frank MIRANDA, Defendant and Appellant.

199 Cal.App.4th 1403

132 Cal.Rptr.3d 315

11 Cal. Daily Op. Serv. 12,995

2011 Daily Journal D.A.R. 15,403

The PEOPLE, Plaintiff and Respondent,

v.Robert Frank MIRANDA, Defendant and Appellant.

No. B224163.

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

Oct. 18, 2011.

As Modified on Denial of Rehearing Nov. 8, 2011.

Review Denied Jan. 11, 2011.

Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

KRIEGLER, J.

We hold that substantial evidence supports the jury's findings that the 15–year–old sexual assault victim, who suffered from cerebral palsy resulting in severe communication difficulties combined with physical disabilities, was mentally incapable of consenting to the sexual offenses committed upon her by defendant. Defendant's additional contentions regarding insufficiency of the evidence, prejudicial exclusion of evidence of a prior false accusation of sexual assault, instructional error, and denial of equal protection in requiring lifetime registration as a sex offender, are also unmeritorious. We affirm.

Defendant and appellant Robert Frank Miranda was convicted of the following offenses upon Jane Doe, a person physically or mentally incapable of giving consent: count 1—attempted rape (Pen.Code, § 664/261, subd. (a)(1)); ¹ count 2—oral copulation ( § 288a, subd. (g)); and count 3—sexual penetration ( § 289, subd. (b)). The trial court sentenced defendant to 11 years in state prison.

FACTS

Prosecution Evidence

Fifteen-year-old Jane Doe slept in a trailer with her father and 13–year–old brother, Vincent, on a Sunday night in October 2008. Someone sleeps with Jane for her safety, because she has cerebral palsy that results in numerous seizures. After the father left for work between 4:00–5:00 a.m. on Monday morning, defendant, who is grandfather to Jane and Vincent, entered the trailer. Defendant directed Vincent to one of the beds, while defendant got into bed with Jane. Vincent believed defendant came to the trailer to take care of his sister.

Vincent soon heard the sound of a female moaning. Defendant was under the blankets, which were moving, with Jane beneath him. When the blankets moved off defendant, Vincent saw defendant with his head close to “her privates,” between her knees, licking her. Defendant's head moved up and down, and a bit later, Vincent saw defendant's fingers entering a split in the boxer shorts worn by Jane in the area of her “privates.” Defendant asked Jane several times if she liked that. Vincent definitely saw defendant's fingers touching his sister, but he could not actually see if defendant's tongue touched her “privates.” Vincent thought defendant, who was wearing boxer shorts, had an erection. Defendant put the blankets back over himself and was again on top of Jane. About 15 minutes later defendant's wife came home, after dropping off other grandchildren at school. After defendant walked out of the trailer, Vincent noticed a salty, fishy smell in the trailer. Vincent asked Jane if defendant had done anything. She made a gesture which Vincent understood to mean he should not say anything because defendant would get mad.

Direct examination of Jane before the jury consumed six pages of reporter's transcript. A number of leading questions were asked, as permitted by the trial court, without objection by defense counsel.² With the exception of three answers, Jane's verbal responses on direct examination were one word consisting of a single syllable.³ At least seven of her answers were inaudible or unintelligible.

Jane testified she would tell the truth in court, and when asked if she would lie, she moved her head from left to right, which the prosecutor described as indicating “no.” The trial court explained to the jurors that they were in “the best position” to see what was happening and to “use your own evaluation” as matters were described for the record. Using a blue marking pen and a simple diagram of a young girl, Jane made shaky markings on the girl's breasts and vagina to indicate where she had been touched by defendant. On a similar diagram of a boy, she placed marks just below the mouth and on the area of the penis to indicate what body parts defendant had used to touch her. When asked if defendant used his mouth to touch her, she stuck out her tongue and nodded “yes.” She held up ten fingers when asked if defendant had touched her more than once.

The cross-examination of Jane by defense counsel, also consisting of six pages in the reporter's transcript, followed the same pattern as her direct testimony. The majority of her verbal answers consisted of one word and one syllable. On a few occasions she gave two word answers (“Yeah. Yeah” or “Yeah. Right.”). She gave one three word answer—“I don't know.” There were at least ten questions to which there was either an inaudible or unintelligible response. Jane testified that the molestation occurred in 2008, but she first told someone in March 2009.⁴ Defendant was wearing boxer shorts. She saw defendant's penis, which was big.

In his testimony, Vincent described Jane as walking “a little bit slower,” but he can talk and interact with her. Jane's brain cannot make her tongue work when she talks due to her cerebral palsy. She goes to a special education school, where she is a sophomore, although Vincent does not know what she is being taught or at what level.

Detective John Selby, a deputy sheriff for 27 years (including 13 years in the Special Victims Bureau), was the investigating officer. He reviewed the report of the sexual assault, after Jane first reported the abuse by defendant to a teacher. The deputy who took the report interviewed Jane and Vincent. Detective Selby arranged for them to be interviewed at the Children's Advocacy Center “because of the condition of ... our victim.” The Center specializes in forensic interviews in a non-intimidating setting, outside the presence of uniformed law enforcement officers. The interviews were observed by the detective and prosecutor. Detective Selby did not conduct a follow-up interview, because the interview statements of Jane and Vincent were consistent with the initial report in the case. The report said Jane was wearing pajama bottoms, not boxer shorts. Jane was not subjected to a physical exam. The specialists in sexual assault examinations recommended against a physical examination due to the passage of time between the incident and the report.

Defense Evidence

Defendant and his wife confirmed that the children's father slept with the childrenin the trailer on Sunday night, he left for work early in the morning, and due to her cerebral palsy, Jane is not allowed to sleep alone because she has seizures. Defendant went to the trailer, wearing pajamas or sweatpants, to make sure Jane was okay after her father went to work. It was early in the morning and defendant did not want her to be unattended if she had a seizure.

When he entered the darkened trailer, defendant found Jane on the sofa bed where she slept with her father, and Vincent was in the back bed with the curtains closed. Defendant climbed into bed with Jane, facing the wall, leaving room for her to get up if she wished. One time Jane jumped out of bed, defendant asked if she was okay, and she said yes and returned to bed. She next awoke when Vincent got up and said he was going to eat. Defendant remained with her in the trailer until 7:00–7:15 that morning.

Defendant did not sexually molest his granddaughter. Jane, who has been in therapy her entire life, was being manipulated into saying she was molested. He never did anything to her, and he does not know why Vincent testified as he did, other than not wanting to move in with defendant.⁵

Defendant was impotent in October 2008. It was not possible for him to have an erection due to diabetes and radiation treatment for cancer. Defendant did ask a doctor for Viagra, but it did not help. This would be documented in his medical records.⁶

Defendant's wife saw defendant at approximately 7:00 a.m., when she went to ask if he would like a cup of coffee. Jane was asleep in the trailer, but Vincent had already come into the living room of the house. Defendant's wife left briefly around 7:45–7:50 a.m. to take other grandchildren to school. When she returned five minutes after dropping off the children at school, defendant was in the house with Vincent and Jane.

Jane and Vincent were supposed to go home on Sunday, but their mother failed to cooperate in picking them up, which was not unusual, so they stayed over to Monday. Defendant had a telephone conversation with their mother, in which he said he was tired of her not showing up and she was a bad mother who had abandoned her children. Defendant eventually took the children to Victorville, where they were picked up by their mother.

Defendant's wife found two empty beer cans stuffed under the dryer in the trailer, as well as a water bottle containing what she thought was two ounces of tequila. She did not believe these items were left there by the children's father, as he had no reason to hide alcoholic containers, and he usually drinks beer, not tequila.⁷ The items were left in the trailer and photographed in March or April 2009 by an investigator.

Vincent's mother had spoken to defendant about Vincent coming to live with him because she could not control him. Defendant told Vincent if he was going to live with him he would have to follow all the rules, including doing his homework before going out to play. April 2009 was the first time defendant heard anything about molestation allegations in a phone conversationwith Jane's mother. Defendant told her he had nothing to do with that and he would not do that to her.

DISCUSSION

I. ...