People v. Santos

• Decision Date: 27 July 1990
• Docket Number: No. H005175,H005175
• Citation: 271 Cal.Rptr. 811,222 Cal.App.3d 723
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. John SANTOS, Defendant and Appellant.

Page 811

271 Cal.Rptr. 811

222 Cal.App.3d 723

The PEOPLE, Plaintiff and Respondent, v. John SANTOS, Defendant and Appellant.

No. H005175.

Court of Appeal, Sixth District, California.

July 27, 1990.

[222 Cal.App.3d 728] Carlo Andreani, San Francisco, by appointment through the sixth district appellate program, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Donna B. Chew, Deputy Atty. Gen., Violet M. Lee, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

ELIA, Associate Justice.

John Santos appeals from a judgment of conviction of two counts of lewd and lascivious acts by force on a child under the age of 14 years (Pen.Code, § 288, subd. (b)), ¹ four counts of oral copulation by force with a child under the age of 14 years and more than 10 years younger than defendant (§ 288a, subd. (c)), and one count of penetration by a foreign object by force (§ 289, subd. (a)). The jury also found true the allegation that defendant used force likely to produce great bodily injury (§ 667.7, subd. (a)). The jury found not true the allegation that defendant inflicted great bodily injury (§ 12022.8). The court found true the allegation that defendant had been convicted of two prior serious felonies (§§ 667; 1192.7, subd. (c)) and that defendant had served two prior separate prison terms for specified felonies (§ 667.7, subd. (a)(1)), thus qualifying him as a habitual offender.

The court sentenced defendant to a total prison term of 37 years on the seven counts. In addition, the court sentenced defendant to life in prison as a habitual offender.

Defendant appeals. We affirm the judgment of conviction but reverse the finding of habitual offender status. We vacate the sentence imposed and remand for resentencing.

FACTUAL BACKGROUND

The People presented evidence that defendant had lived with Elaine Velez in a five-year, on-again, off-again relationship. Their sons, ages 1 and 4, and one of Velez' daughters by another relationship also lived in their San Jose apartment. The daughter, whom we will refer to as M., was 11.

On the evening of March 19, 1988, Velez went out with her adult daughter, who left her 4-year-old son at the apartment for the night. Leaving all four children in defendant's care, Velez and her daughter went to San Francisco with a man Velez was seeing without defendant's knowledge. The man and Velez dropped the daughter at her home and went to a motel for the night.

M. testified that, at approximately 5 a.m. the following morning, defendant jumped on top of her while she was sleeping. Defendant, who was naked, hit M. with his fist several times about the head, causing bruising, a bloody nose, and a swollen eye and lip. Defendant directed M. to the bathroom to clean up. She wiped her nose with toilet paper, which she flushed. Defendant followed M. into the bathroom and began rubbing his penis against her buttocks. M. asked what defendant was doing and was fearful he might hit her again.

Defendant told M. to hold his erect penis as they left the bathroom. They walked to a couch in the living room, where defendant ordered M. to perform oral copulation. M. resisted but when defendant threatened to hit her, she complied and followed defendant's directions to bite him and to "[d]o it faster."

Defendant ordered M. to move to another couch and to renew oral copulation. He threatened to hit her and told her to "[s]uck it like a lolly pop." Defendant ordered M. to undress. When she hesitated, he threatened her again and pulled her clothes off. He put his mouth on her "private parts" and inserted his finger, which "hurt."

Defendant then lay on his back on the rug and ordered M. to orally copulate him again. When he threatened to hit her, she complied. Defendant ejaculated, depositing semen on the rug. Defendant wiped his leg and the rug with a white cloth. M. dressed and complied with defendant's order to fetch his clothes. After defendant dressed, he followed M. into the kitchen and rubbed his penis against her buttocks. He then lay down on a living room couch. He told M., "If you tell your mom, I'll do it again."

Around 8 a.m., the adult daughter went to the apartment to pick up her son. She noticed M.'s black eye; she found M. nervous, scared, and reluctant to tell what had happened. Fifteen minutes later, she left with her son and M. to meet Velez at a restaurant. While Velez waited at the restaurant, she phoned defendant to say that she was leaving him and that she would give him custody of their sons. After M. arrived and told her mother what had happened, Velez phoned the police. Velez, her adult daughter, and M. met the police at the apartment, where defendant was arrested.

M. walked through the apartment, explaining to the officer what had happened. He found blood on M.'s mattress and on a white towel. He found a stain on the rug where M. said defendant had ejaculated. Later, Velez found defendant's white tee shirt, crumpled and stuck together, behind a toy box in the living room. M. provided a consistent report to an officer at the police station. Both officers noticed M.'s black eye and found her to be scared and timid.

M. was examined by a doctor, who found a bruise on the upper lid of her left eye but no signs of trauma in the vaginal area. Testifying for the prosecution, the doctor stated that a blow to the eye can cause internal bleeding of the eyeball and that a forceful blow to the head can cause brain injury. A doctor for the defense testified that the final report on M. indicated no definite physical evidence of anal or genital injury, but that this finding did not rule out the possibility of sexual contact.

A criminalist testified for the People that he did not detect semen on two oral swabs taken from M. but that semen could be destroyed by saliva or by drinking water. M. ingested water after the incidents and before the swabs. The criminalist detected saliva on two penile samples taken from defendant. He found four stains on the white t-shirt, one of which was a mixture of saliva and semen consistent with defendant's blood type, secretor status, and genetic markers. The criminalist testified that only 1.25 per cent of the population would match the same factors.

Defendant's forensic expert testified to the presence of semen on the white tee shirt, but she also tested a stain that she believed could not have come from either defendant or M. She found a negligible amount of semen in one penile sample and none in the other. She also detected the presence of either perspiration or saliva on the tee shirt and the penile samples.

Defendant did not testify at trial. Defendant's nephew testified that defendant telephoned him at about 4 a.m. on the morning of the alleged incidents. Defendant was distraught, apparently because Velez had not returned home. The nephew arrived at the apartment approximately 45 minutes later. He advised defendant to move out immediately and phoned defendant's brother to bring his truck. The nephew testified that while he and defendant waited, M. peeked out of her bedroom. He said, "Hi," and she returned to bed. The brother arrived about 6 a.m. After determining that there was not enough room in the truck for defendant's belongings, the brother and nephew left half an hour later.

Defendant telephoned his brother at 8 a.m. to discuss securing the apartment. Shortly thereafter, the brother arrived at the apartment and began changing the locks. He testified that he stopped when the police arrived around 9 a.m.

The nephew also testified regarding his visit to another apartment in 1986. Defendant and Velez were watching an x-rated movie depicting oral copulation. Velez was unconcerned that M. was also viewing the movie from the dining room, stating that "she'll see it on the street anyway."

Defendant's niece testified that she lived with defendant and Velez in another apartment for two and a half months in 1986. The niece observed M. viewing x-rated movies; Velez did nothing to prevent M.'s activity. On cross-examination, the niece acknowledged that M. may have been with her father in Reno for two months out of that period.

On cross-examination, Velez testified that defendant owned several x-rated movies, which he watched with his nephew but never in M.'s presence. M. testified on cross-examination that she knew of x-rated movies in the house but that she never watched them.

DISCUSSION

I. Ineffective Assistance of Counsel

"[T]he burden of proving a claim of inadequate trial assistance is on the appellant. [Citation.] Thus, appellant must show that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates." (People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.)

Defendant argues that his legal representation was inadequate on two grounds. First, he argues that counsel failed to assert a critical argument in moving to set aside the information under section 995. Second, he maintains that trial counsel should have objected to questions asked of defendant's nephew on cross-examination and to portions of the prosecutor's closing argument pertaining to the nephew's testimony.

The Section 995 Motion

Initially, the People charged defendant by complaint with one count of lewd and lascivious acts by force on a child under the age of 14 years (§ 288, subd. (b)) and alleged one prior serious felony. Over defendant's objection at the preliminary hearing, the People presented evidence not only of the charged offense but also of other offenses in order to show defendant's intent. (See § 288, requiring "the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of [defendant] or of such child....") Thereafter, the People filed an information, later amended to add allegations of another prior serious felony and of habitual offender status, which...