People v. Munoz, B290906

Decision Date19 June 2019
Docket NumberB290906
PartiesTHE PEOPLE, Plaintiff and Respondent, v. DANIEL GARCIA MUNOZ, Defendant and Appellant.
CourtCalifornia Court of Appeals

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA456968)

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert Perry, Judge. Affirmed.

Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

A jury convicted appellant Daniel Garcia Munoz of sexual penetration by a foreign object and assault with intent to commit sexual penetration by a foreign object, finding appellant had sexually assaulted 68-year old M. H. in her apartment by digitally penetrating her vagina. At trial, the victim described the assault and identified appellant as the perpetrator. The victim's neighbors testified to what they heard during the assault, and to their observations of appellant fleeing the apartment immediately after the assault. The victim's vaginal injuries were consistent with a forceful digital penetration.

Appellant argues the trial court committed error when it denied his motion for a continuance to conduct independent testing of DNA evidence which was discovered and tested by the prosecution on the eve of trial. He also argues the trial court erred in failing to instruct on simple battery as a lesser included offense of sexual penetration by a foreign object. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

An information charged appellant with assault to commit a felony during the commission of a first degree burglary (Pen. Code, § 220, subd. (b), count one),1 first degree burglary (§ 459, count two), and sexual penetration by a foreign object (§ 289, subd. (a)(1), count three).

A. Prosecution Case

The victim was 68 years old at the time of the alleged incident and lived alone on Berendo Street. She had a preexisting medical condition in her leg that caused her to limp. She did not speak English and testified through the aid of a Vietnamese interpreter.

On the night of May 1, 2017, the victim was in the bathtub. The bathroom door was partially open, and the victim was naked. She heard a noise, as if someone outside was fixing a broken pipe. As the victim stepped out of the bathtub, she saw appellant standing by the entrance to the bathroom. She screamed, and appellant shushed her. She tried to push pasthim to get out of the bathroom, but appellant pushed her against the door and pulled her by the arm into the bedroom. He grabbed her arms and put his face next to hers, then inserted his finger into her vagina "a little bit."2 The victim was screaming the entire time. Appellant tried to leave through the back door, but it was locked, so he grabbed the victim's hands and forced her to unlock the back door. Once outside, appellant ran away.

That night, neighbor Rene Chimil had been working outside his apartment when he heard the sound of glass breaking from the victim's apartment, followed minutes later by the victim's screams.3 A transcribed 911 call Chimil placed at 11:29 p.m. was played for the jury.4 Chimil reported that a Hispanic man had broken into his elderly neighbor's apartment through the window. The Hispanic man was wearing a white shirt and ran away toward San Marino street. Chimil identified appellant in the courtroom as the Hispanic man he observed.5 Chimil also observed the victim coming out of her apartment after appellant. She appeared scared and was naked,screaming and gesturing toward the male who had run away. The police arrived within five to 10 minutes.

Chimil lived with his brother-in-law, Freddy Lopez, who was awakened that night by the victim's screams. Lopez opened the back door and saw a man running away. He also saw the victim standing naked by her back door. Lopez could not understand what she was saying, but she appeared upset and was pointing to her vagina.

Two female police officers interviewed the victim with the aid of a telephonic Vietnamese interpreter. Officer Jessica Cardenas of the Los Angeles Police Department (LAPD) testified it was difficult to work with the interpreter because the officers did not speak Vietnamese and could not verify the accuracy of the interpretation. Also, the interpreter seemed reluctant to ask the victim any sexual questions. When asked if the man had touched her, the victim did not disclose that he had inserted his finger inside her vagina. On cross-examination, the victim explained the interpreter had not asked whether the man inserted his finger in her vagina, only whether he had "touched" or rubbed her. The victim told the officers the man had been wearing a white shirt, and a suspect was located during the interview.6 The officers took the victim to a field show-up, where she identified appellant as the man who assaulted her. No sexual assault exam was administered that night.

The day after the incident, additional detectives, one of whom spoke Vietnamese, interviewed the victim. The victim disclosed to the Vietnamese-speaking detective that appellant had vaginally penetrated her vagina with his finger. She initially declined the sexual assault exam, and felt afraid and ashamed about the assault; however, when informed of the risk of infection, she agreed to take a sexual assault exam that evening.

Nurse practitioner Page Courtemanche administered the sexual assault exam, approximately 20 hours after the assault.7 Between the assault and the exam, the victim had taken a bath and also wiped her vaginal area with toilet paper. Courtemanche explained that a victim's post-assault hygiene could remove forensic evidence of the assault or cause it to deteriorate. During the exam, the victim indicated appellant had vaginally penetrated her with his finger for approximately five minutes. The bruises and abrasions observed on the victim's vaginal area were consistent with the mechanism of injury she described - a forceful digital penetration of her vagina.

B. Defense Case

The defense presented no witnesses.

C. DNA Evidence Stipulation

The parties stipulated that no male DNA was found on swabs taken from the victim's vaginal area on May 2, the day after the assault. The parties further stipulated that swabs taken from appellant's palms and fingernail scrapings on May 3, two days after the assault, revealed the following results: "Left palm, three contributors, all male. Right palm, two contributors, including at least one male. Minor contributor cannot be determined. Major contributor is [appellant]. Right fingernails, [appellant's] [DNA] only. Left fingernails, major contributor is [appellant]. Minor contributor cannot be determined due to insufficient [DNA] to develop a [DNA] protocol."

D. Closing Arguments

During argument, defense counsel focused on parts of the victim's testimony which were unclear or inconsistent, namely, the exact manner of penetration, such as which hand appellant used to push her and penetrate her. Defense counsel argued what likely occurred was that appellant entered the victim's home while intoxicated, and maybe they "bumped into eachother" or "[h]e might have pushed her, but he gets out." Defense counsel sought to undermine the victim's credibility by pointing out she did not disclose the sexual assault during the initial interview, and highlighting the absence of DNA evidence. The prosecution attributed any inconsistencies in the victim's testimony to the inherent difficulties of testifying through an interpreter, and the victim's circuitous manner of speech. The prosecutor also argued the insufficient DNA evidence did not establish the assault did not occur.

E. Verdict and Sentence

The jury found appellant guilty of the lesser crime of assault with intent to commit sexual penetration by a foreign object (§ 220, subd. (a), count one), acquitted him of burglary (count two), and found him guilty of sexual penetration by a foreign object (count three).8 The jury was instructed on and rejected the lesser included offense of sexual battery. He was sentenced to state prison for a term of nine years. Appellant timely appealed.

DISCUSSION
I. Denial of Motion to Continue Trial
A. Relevant Trial Court Proceedings

On Friday, March 2, 2018, the prosecutor informed defense counsel of DNA samples from appellant that had not yet been tested. Although both the victim and appellant had been swabbed for DNA, only the victim's DNA swab had been sent to the crime lab, while appellant's swab had been used as a reference sample without being tested - an oversight the prosecutor had recently learned about after receiving the crime lab report. The prosecutor had arranged for expedited testing of appellant's DNA over the weekend, and was hopeful the results would be available Monday morning. On Monday morning, despite not having the test results, the parties announced in "Department 100" they were ready for trial and were assigned to a trial court.A jury was empaneled that day. Defense counsel received the test results at 4:16 p.m. on Monday afternoon.

The following morning, Tuesday, March 6, while jurors and witnesses waited outside the courtroom ready for trial, defense counsel moved to continue the trial based on the new DNA evidence. The court expressed surprise at the defense motion because the DNA evidence was "exculpatory" in nature, noting "the right fingernails of [appellant] only contained his [DNA] despite the claim by the complaining...

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