People v. Roman

• Decision Date: 19 June 2019
• Docket Number: A153966
• Parties: THE PEOPLE, Plaintiff and Respondent, v. MIGUEL SEGURA ROMAN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. MIGUEL SEGURA ROMAN, Defendant and Appellant.

A153966

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

June 19, 2019

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Napa County Super. Ct. No. CR-168666)

A jury convicted Miguel Segura Roman of 38 counts of sex offenses against his two daughters, D.D. and R.D., and he was sentenced under the one strike law (Pen. Code, § 667.61) to an aggregate term of 740 years to life in prison.¹ Roman argues certain convictions are not supported by substantial evidence; he was convicted and punished for multiple offenses based on the same act; the court committed instructional error; and the restitution award constitutes an abuse of discretion. We correct a clerical error in the abstract of judgment but otherwise affirm.

BACKGROUND

A.

The Napa County District Attorney charged Roman by information with three counts of sex with a child 10 years of age or younger (§ 288.7, subd. (a); counts 1, 9, 17), three counts of sexual penetration with a child 10 years of age or younger (§ 288.7,subd. (b); counts 2, 10, 18), and 31 counts of a lewd act on a child (§ 288, subd. (a); counts 3-8, 11-16, 19-37). These allegations involved D.D. and were grouped into five time periods corresponding with her age at the time of the alleged offenses: beginning in March 2009, when eight-year-old D.D. and her family moved to Napa County. Roman also was charged with two counts of a lewd act on R.D. (§ 288, subd. (a); counts 38-39) beginning when she was four years old. Sentencing enhancements were alleged for personal infliction of bodily harm as to count 37 (§ 667.61, subds. (a), (c)(8), (d)(6)-(7)) and for the involvement of multiple victims on the lewd conduct counts (id., subds. (b), (c)(8), (e)(4), (j)(2)).

B.

Roman, his wife (Mother), and their four children lived together until November 2013, when Roman was arrested after 13-year-old D.D.'s pregnancy was confirmed. D.D., age 17 at the time of trial, testified Roman first digitally penetrated her vagina when she was about six years old. The molestations began as playful games in which he chased and touched her. Later, Roman digitally penetrated her on numerous occasions when they were alone in the family's shared bedroom, and he would cover her face with a blanket or towel. He also sometimes digitally penetrated her while she showered. Within a year, Roman progressed to having sexual intercourse with D.D.

In March 2009, the family moved to Napa County, and Roman increased the frequency of his abuse of then eight-year-old D.D. She testified that, after the family's move and through the last remembered incident in 2013, Roman both digitally penetrated her and had sexual intercourse with her "once a week." Most of these violations occurred in D.D.'s bedroom in the middle of the night. He continued to use a towel or blanket to cover her face. D.D. described kicking Roman, who would tell her to go back to sleep or use force to hold her still. About once or twice a month during that time period, he also touched the inside and outside of her vagina with his fingers when she was in the bathroom. D.D. could distinguish between the digital and penile penetrations due to size differences and ejaculation.

D.D. last recalled Roman having sex with her in May or June 2013, when she was 13 years old. The incident occurred in her bedroom after Mother left for work. D.D. remembered Roman became angry when she pulled his hair in an attempt to make him stop.

In November 2013, Mother noticed D.D. was withdrawn and trying to hide her stomach. When she asked D.D. if she had been raped, D.D. nodded and started crying. When asked by whom, D.D. said, "my dad." D.D.'s pregnancy was confirmed the next day; she was five to six months pregnant. D.D. told the nurse that Roman began molesting her, usually while she was asleep, when she was nine years old. D.D. also told the nurse Roman had sex with her in May or June 2013. At trial, D.D. explained she was too embarrassed to admit the true frequency.

The nurse contacted the police and child protective services. D.D. made a recorded pretext call to Roman. He first denied molesting D.D. but eventually said "it was a mistake," asked her to forgive him, and threatened to harm himself. In a November 2013 police interview, Roman denied any sexual touching of either daughter and suggested D.D. was lying. When D.D.'s baby was born in early 2014, DNA evidence showed Roman was the father.

In November 2013, R.D. underwent a physical exam that neither confirmed nor negated sex abuse. Sometime after Roman's arrest, R.D. told Mother that Roman molested her. Deputy Sheriff Chris Pacheco conducted a second forensic interview with five-year-old R.D. in January 2014. In this interview, which was played for the jury, R.D. said Roman had touched her vagina (which she called her "front butt") with his hand more than once. First, she described feeling something touch her "real quick" while sitting on the couch watching television with Roman. When Pacheco asked R.D. about a second time, she described another incident when Roman touched her vagina, underneath her clothes, while she was sitting on the couch and Mother was cooking dinner. After further questioning, R.D. pointed to the crotch of the boy doll when asked what part had touched her. She said Roman touched her with his "front part" while sitting on the couch with her brothers. At trial, then nine-year-old R.D. testified Roman used his hand totouch her "front butt" only "[o]ne time," when they were alone, sitting on the couch watching television.

Roman conceded he was guilty of count 37 (corresponding to D.D.'s pregnancy) and focused his defense on the counts involving R.D. The forensic interviewer who conducted an initial interview of R.D. was called as a defense witness. When R.D. was asked, shortly after Roman's arrest, if anyone had ever touched her "in a way [she] didn't like in [her] private areas," she responded, "no." A defense expert also testified children may be influenced by repeated or suggestive questioning.

C.

The jury returned guilty verdicts on all 37 counts involving D.D. and one count involving R.D. (count 38). Attempts to reach a verdict on count 39 (lewd act on R.D.) ended in deadlock and a mistrial. The jury found the enhancement allegations true for all sustained counts. Imposing consecutive sentences on all counts, the trial court sentenced Roman to an aggregate term of 740 years to life in state prison. The court stayed punishment on the bodily harm enhancement (§ 667.61, subd. (d)(6), (7)) and awarded noneconomic victim restitution totaling $1.15 million.

DISCUSSION

A.

Roman contends D.D.'s "generic testimony" is insufficient to support his convictions on counts 1 through 36, and the error amounts to a due process violation. We disagree.

1.

When faced with a substantial evidence challenge, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate witness credibility. (People v. Jones (1990)51 Cal.3d 294, 314 (Jones).) "A reviewing court must accept logical inferences the [fact finder] might have drawn from the circumstantial evidence. [Citation.] ' "A reasonable inference, however, 'may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.' " ' " (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1416-1417, disapproved on another point by People v. Farwell (2018) 5 Cal.5th 295, 304 & fn. 6.)

2.

"Child molestation cases frequently involve difficult . . . proof problems. A young victim . . . assertedly molested over a substantial period by a parent or other adult residing in his home, may have no practical way of recollecting, reconstructing, distinguishing or identifying by 'specific incidents or dates' all or even any such incidents." (Jones, supra, 51 Cal.3d at p. 305.)

In Jones, supra, 51 Cal.3d 294, our Supreme Court held an alleged child victim's generic testimony may be sufficiently substantial to sustain convictions on multiple counts, so long as the victim "describe[s] the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy)[;] . . . the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., 'twice a month' or 'every time we went camping')[; and] . . . the general time period in which these acts occurred (e.g., 'the summer before my fourth grade,' or 'during each Sunday morning after he came to live with us'), to assure the acts were committed within the applicable limitation period. Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim's testimony, but are not essential to sustain a conviction." (Id. at p. 316.) The Jones court also rejected the notion generic testimony deprives a defendant of the right to present a defense. (Id. at pp. 320-321.)

Roman suggests the Jones holding does not apply to multiple counts, and D.D.'s generic testimony can only support a...