People v. Vasquez
| Decision Date | 22 September 2016 |
| Docket Number | F069281 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. AGUSTIN VASQUEZ, Defendant and Appellant. |
| Court | California 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Kings Super. Ct. No. 13CM8743)
OPINIONAPPEAL from a judgment of the Superior Court of Kings County. Steven D. Barnes, Judge.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Rachelle Newcomb, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant/defendant Agustin Vasquez was charged and convicted of count I, sexual penetration of a minor over the age of 14 years old by means of force (Pen. Code, § 289, subd. (a)(1)(C));1 count II, sexual battery (§ 243.4, subd. (a)); and count III, misdemeanor annoying or molesting a child (§ 647.6, subd. (a)(1)). The victim was his 16-year-old goddaughter, who testified that defendant entered her bedroom at night, touched her vagina, and penetrated her genital area. Defendant denied her accusations and claimed he just gave her a massage. He was sentenced to eight years in prison.
On appeal, defendant contends the court should have granted his motion to exclude his pretrial statements to a police officer because he requested a Spanish interpreter, he was not provided with a translator, the officer conducted the interview in English, he did not knowingly and intelligently waive his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and his statements were involuntary.2
Defendant also contends his conviction for count I, sexual penetration of a minor with force, must be reversed because there is insufficient evidence of penetration as required by statute. In a related argument, defendant asserts the court had a sua sponte duty to instruct the jury on attempted sexual penetration as a lesser included offense of count I, and substantial evidence supported the instruction because of the victim's inconsistent statements about the nature and extent of the touching.
Defendant further argues the court should have granted his motion for new trial, based on trial counsel's alleged ineffectiveness for failing to impeach the victim with her pretrial statements to the police.
Finally, defendant contends the court should have stayed the sentence imposed for count II pursuant to section 654.
We will modify defendant's sentence and otherwise affirm.
In 2013, Sonia M. was 16 years old. She lived in Avenal with her mother, two brothers, and younger sister.
Defendant was Sonia's godfather. Sonia testified that defendant was like a second father to her family after their own father left them. Sonia testified defendant was at their house two or three times a week. Sonia and defendant spoke to each other in both English and Spanish.
Defendant often stayed overnight at Sonia's house, and slept on the couch. Sonia testified defendant and her mother were friends, but they did not appear to have a romantic or sexual relationship. Everyone in the family got along with defendant. He never touched or flirted with Sonia. Sonia occasionally saw defendant with various girlfriends.
The night of the incident
On the evening of May 16, 2013, defendant was at Sonia's house. Sonia was there with her mother and siblings. Everyone ate dinner together. Sonia's mother worked a nightshift and left for work. Defendant stayed at the house after she left.
Sonia testified there was nothing wrong that night. Sonia further testified defendant had never given her a massage, she did not need a massage that day, she did not ask him for one, and she did not ask him to touch her. She had never seen defendant give massages to her mother or siblings.
Sonia and her six-year-old sister shared a bedroom, and they went to bed around 10:47 p.m. Sonia was wearing underwear, loose-fitting pajamas, and socks. Sonia's bed was closest to the door. The bedroom door was closed when Sonia fell asleep.The sexual assault
Sonia testified she woke up in bed when she felt someone touch the skin of her leg, under her pajamas. There was a light outside her bedroom window, and Sonia saw defendant standing in front of her bed. Her bedroom door was open. Sonia testified it was unusual for defendant to be in her bedroom.
Sonia testified defendant sat on her bed. Defendant put both his hands through the leg openings of her pajamas and touched her legs. He moved his hands up both of her legs, under her pajamas. Sonia used her right hand and tried to flick away defendant's hand from her body. Defendant did not stop, and continued to move his hands up her legs and toward her underwear.
Sonia's testimony about penetration3
Direct examination
On direct examination, Sonia testified defendant continued to touch her legs, and he moved his hands under the leg openings of her underwear. She felt his hand inside her underwear, and felt his bare skin touch her bare skin.
In response to the prosecutor's questions, Sonia testified defendant touched her "private part," and said that was the same area that she wiped herself after urination. Sonia testified defendant touched her private part with his hand.
Sonia testified that as defendant touched her "private part," she again tried to flick his hand away from her body. She also spoke to him in Spanish and told him to leave her alone. However, defendant did not stop and continued to touch her. Sonia testified she did not call for help or try to leave her bedroom because "I was scared and I didn't know what to do."
The prosecutor presented Sonia with a diagram which showed drawings of a person's front and back. The prosecutor asked Sonia to mark the diagram to show where defendant touched her body. The prosecutor presented Sonia with a second diagram which showed a female's "private part," and asked her to mark the area where defendant touched her. Sonia drew a circle, and testified defendant touched her "inside" the circle that she had just drawn.
Sonia testified no one else had ever touched her private part or vagina. She did not like how it felt.
On cross-examination, defense counsel asked Sonia about where defendant touched her.
Defense counsel turned to Sonia's pretrial statement to Officer Vargas about the incident, and asked her what she told Vargas.
Defense counsel next asked Sonia if Officer Vargas asked her if defendant put his hands "inside" her "opening," and whether Sonia said yes. Sonia testified that she said yes to Vargas.
After additional questions, defense counsel returned to the subject of Sonia's prior statement to Officer Vargas.
Defense counsel asked Sonia if she remembered that Officer Vargas asked her several times if defendant's finger went inside her private part, and she said yes and then said she did not know. Sonia testified that she remembered being asked the question, but she did not remember her answer.
Sonia testified she did not know why she did not remember what she told Vargas. Defense counsel asked if she lied to Vargas. Sonia said she was not lying, she remembered things better at the time it happened because time had passed, and since then "I will talk about this to no one."
Defense counsel showed Sonia the transcript of her interview with Officer Vargas, asked her read a certain portion, and asked if that refreshed her memory about whether she said defendant put his finger in her private part. Sonia testified it did not help refresh her memory. Sonia again testified she told the truth to Vargas.
Redirect examination
On redirect examination, the prosecutor returned to the question of where defendant touched Sonia.
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