People v. Sanchez

• Decision Date: 04 April 2016
• Docket Number: C073360
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Santiago SANCHEZ, Defendant and Appellant.

246 Cal.App.4th 167

200 Cal.Rptr.3d 546

The PEOPLE, Plaintiff and Respondent,

v.Santiago SANCHEZ, Defendant and Appellant.

C073360

Court of Appeal, Third District, California.

Filed April 4, 2016

Certified for Partial Publication.^*

Maureen L. Fox, Los Gatos, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Michael P. Farrell, Assistant Attorneys General, Stephen G. Herndon and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.

HOCH

, J.

Defendant Santiago Sanchez was convicted by jury of four sex offenses—one count of sexual penetration (Pen.Code, § 288.7, subd. (b)

),¹ one count of attempted sexual intercourse (§§ 664, 288.7, subd. (a) ), and two counts of lewd or lascivious conduct (§ 288, subd. (a))—committed against an eight-year-old girl, D.C.; he was convicted of two additional sex offenses—two counts of lewd or lascivious conduct (§ 288, subd. (a))—committed against D.C.'s ten-year-old sister, M.C. The jury also found defendant committed lewd or lascivious acts against more than one victim. (§ 667.61, subd. (e)(4).) The trial court sentenced defendant to serve 65 years to life in state prison and imposed other orders.

On appeal, defendant contends: (1) the evidence was insufficient to establish the corpus delicti of the crime of sexual penetration; (2) the trial court abused its discretion and violated his constitutional right to due process by excluding certain evidence he claims was admissible to impeach testimony from the victims' older brother, S.S., who saw defendant's attempt to have sex with D.C. and called the police; (3) the trial court abused its discretion and violated his confrontation, due process, and jury trial rights by allowing testimony from an expert on Child Sexual Abuse Accommodation Syndrome (CSAAS); (4) the prosecutor engaged in prejudicial misconduct in violation of defendant's right to due process; (5) the trial court's imposition of three consecutive life terms amounted to an unauthorized sentence and a denial of due process; and (6) the cumulative effect of the foregoing assertions of error deprived defendant of his right to due process.²

We affirm defendant's convictions and remand the matter for resentencing. As we explain, while there was no direct evidence of the specific act of sexual penetration defendant was convicted of committing, other than his confession during interrogation, the circumstantial evidence was more than sufficient to establish the corpus delicti of the crime. The trial court did not abuse its discretion in excluding the proffered evidence purportedly relevant to impeach S.S. or by allowing the challenged CSAAS testimony. Defendant's claim of prosecutorial misconduct is forfeited by his failure to object and request a curative instruction. Nor did defense counsel's failure to so object amount to constitutionally deficient performance. Defendant's assertion of cumulative prejudice also fails.

We do, however, agree the matter must be remanded for a new sentencing hearing. While the trial court's imposition of three consecutive life terms is not unauthorized, and therefore defense counsel's failure to object to this sentence below arguably forfeits the issue on appeal, it is apparent from the record that the trial court believed it was required to impose full, separate, and consecutive terms pursuant to section 667.6, subdivision (d), and rule 4.426 of the California Rules of Court³

that were not applicable to this case. Assuming the issue is forfeited, we conclude defense counsel's failure to object and correct the trial court's misunderstanding amounted to ineffective assistance of counsel.

FACTS

Defendant was 19 years old and volunteering at an after-school program when he met S.S. Despite the fact defendant was seven or eight years older than S.S., the two became friends. About a month later, defendant met S.S.'s mother, C.C., at the after-school program and was invited over to their house to meet her husband, J.A., with whom defendant shared an interest in automotive repair and body work. At the house, defendant also met the other children in the household, D.C., M.C., and their younger brother, E.C. Over the course of about a year, defendant and J.A. became friends and worked on cars together. Defendant also routinely watched the children when their parents went out.

In August 2011, defendant committed the crimes involved in this case. He was 20 years old. His victims, D.C. and M.C., were eight years old and ten years old, respectively.

Crimes against M.C.

Defendant stayed the night at the family's house on August 1, 2011. While watching a movie with the children in the living room, defendant touched M.C. twice with his hand on her vaginal area, over her clothes, removing it about "two seconds" after M.C. told him to "stop." The next morning, defendant was asked to watch the children while C.C. went to work and J.A. went to Pick–n–Pull. He agreed. Before J.A. left, M.C. told him defendant was "bothering" her; not understanding the seriousness of the situation, J.A. told her to "just tell him to stop bothering you." That day, the children had various chores to do. Defendant contributed by helping S.S. with the yard work. As defendant watered the front lawn, M.C. passed by him on her way to get a hedge trimmer for S.S. Defendant reached out and briefly touched her chest with the back of his hand. Believing defendant did so "on purpose" because "he was smiling," M.C. told him to "stop." Defendant responded that "he wasn't doing anything wrong." When she again passed by defendant to get a shovel for S.S., defendant again reached out and briefly touched her with the back of his hand, this time on her vaginal area. M.C. again told him to "stop." Defendant again said he "didn't do anything." Defendant confirmed in his statement to police that he touched M.C.'s chest "like one time" and he touched her vaginal area "like twice," always over her clothing.

Based on these facts, as previously mentioned, defendant was convicted of two counts of committing a lewd or lascivious act on M.C., a child under the age of 14 years.⁴

Crimes against D.C.

After defendant finished watering the lawn, the children asked to play in the swimming pool. Defendant agreed. While he and S.S. finished up the yard work, the other children went inside the house to change into swimming suits. After the children had changed, defendant went into S.S.'s bedroom to change into some shorts. The record is unclear as to whether D.C. was already in the bedroom when defendant came in, or whether she came into the room after defendant had changed. Either way, she began playing with S.S.'s guitar on the bottom bunk of the bunk beds S.S. shared with his younger brother, E.C. Defendant took the guitar away and climbed on top of her. By his own account, he pulled her swimming suit to the side to expose her vagina, and pulled up one of the leg openings of his shorts to allow him to pull out his penis. He then attempted to insert his penis into D.C.'s vagina, but was unsuccessful because his penis was not erect.

Unbeknownst to defendant, S.S. had entered the house looking for D.C. Having seen defendant touch M.C.'s buttocks on two previous occasions, S.S. decided to keep "a closer eye on him." With this purpose in mind, S.S. entered the house quietly through the back door, "snuck around the corner to check the living room," and then "went down the hallway a little." From the hallway, S.S. saw defendant on top of D.C. on the bed. Defendant's "hip area ... was moving up and down." D.C. told defendant to "[s]top." Defendant responded: "Just go with it." S.S. "stood there for about a minute" trying to decide what to do. He considered confronting defendant, but "figured if [he] did that, that [defendant] would leave and would most likely, probably, get away with it." Instead, S.S. left the house "to go call the cops." On his way out, S.S. told M.C. to "stay outside" and that he "would be back." He then got on his bicycle and rode to a neighbor's house. When this neighbor was not home, S.S. rode to a nearby gas station and used a stranger's cell phone to call 911.

Meanwhile, according to defendant's statement to police, he stopped his assault on D.C. shortly after it began and allowed her to go outside to play with her siblings. Defendant also told police he penetrated D.C.'s vagina with one of his fingers while giving her a piggyback ride down the hallway. His statement is unclear as to when exactly this took place, except that it happened before he tried having sex with her and she was already wearing her swimming suit. Regardless of the precise timing, defendant admitted: "I was tryin[g] to put it in there. My finger." He also admitted he succeeded in penetrating D.C.'s vagina with his finger. When asked whether it turned him on, defendant answered: "Uh, yes, a little." When asked whether it probably caused him to then try something more with D.C., defendant responded: "Yeah."

Based on these facts, as previously mentioned, defendant was convicted of one count of sexual penetration, one count of attempted sexual intercourse, and two counts of committing a lewd or lascivious act on D.C., a child under the age of 14 years.

Police arrived at the house a short time after S.S. made the call to 911. Defendant was taken into custody, advised of his Miranda

rights,⁵ and questioned. He eventually admitted to touching M.C.'s vagina and chest over her clothes, penetrating D.C.'s vagina with his finger while giving her a piggyback ride, and attempting to penetrate her vagina with his penis while on the bed. Defendant also wrote down that he "made a mistake" when he "tr[ied] to put something in [D.C.]," but he "was not thrusting" and stopped when she told him to stop. He also wrote a letter apologizing to the family for his actions.

DISCUSSION

I

Sufficiency of the Evidence to Establish the Corpus Delicti of Sexual Penetration

Defendant...