THE PEOPLE v. VICTOR ENRIQUEZ

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. VICTOR R. ENRIQUEZ, Defendant and Appellant.

B222951

Decided: November 23, 2010

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

A jury convicted Victor R. Enriquez (appellant) of felony lewd acts upon a child (Pen.Code, § 288, subd. (a)) (count 3);  misdemeanor resisting a peace officer (Pen.Code, § 148, subd. (a)(1)) (count 4);  and misdemeanor child molesting (Pen.Code, § 647.6, subd. (a)(1)) (count 7).   The trial court imposed the midterm of six years in count 3 and stayed the sentence in count 7 pursuant to Penal Code section 654.   The trial court imposed 180 days in jail in count 4, and appellant received credit for time served.

Appellant appeals on the ground that his due process rights were violated because due to the inherent improbability of the complainant's testimony, there was insufficient evidence to support his convictions in counts 3 and 7.

FACTS

Prosecution Evidence

On April 8, 2008, E.V. lived in an apartment in Lynwood with his mother, brothers, and sister.1  Appellant rented a room in their apartment.   E. was 11 years old at the time of trial in January 2010.   Appellant sometimes played outside with E. and other children from the apartment complex.   One day E. was playing hide and seek with his brothers and his friends, who included Melanie, Michelle, Bony, and Jorge.   Appellant was going to his van in the parking lot, and he asked E.'s brothers if they wanted to go to the store with him.   They got in the van, and then E. followed.   Michelle, Melanie, Jorge, and Bony got in also, but Jorge and Bony got out of the van as it passed through the gate.   Appellant told the kids that he was taking them to the doughnut shop.   The kids were sitting in the back of the van where there were no seats.   E. moved up to the front passenger seat.

As they drove, appellant asked Michelle and Melanie if they wanted a dollar.   Before they got the dollar, they took turns pretending to steer the wheel.   When Michelle was sitting on appellant's lap and steering, E. saw appellant touch her private part.   E. saw appellant do the same thing when Melanie sat on appellant's lap and steered.   As E. sat in the front passenger seat, appellant pushed the brakes on purpose.   Appellant put his hand out and touched E.'s private part for about five seconds.

While appellant was in the doughnut shop, Michelle and E. tried to open the front passenger door because Michelle said she was scared.   They were able to unlock the door, but appellant came out.   Michelle and E. went to the rear of the van.   Appellant then gave a dollar each to Melanie and Michelle.   Appellant was driving them back home when the mother of Michelle and Melanie, Cynthia P. (Cynthia), and E.'s mother crossed paths with the van.   The two mothers were in E.'s mother's van looking for their children.   The two vans stopped.   Cynthia was upset, and E.'s mother was a little upset with him also.   E., Michelle, and Melanie told the mothers about being touched.   After that day, appellant no longer lived in E.'s family's apartment.

E. is in the same grade as Jasmine, and they played in the neighborhood together.   Jasmine is “sort of” Michelle's best friend.   Jasmine was there when Michelle and E. were talking about what happened on April 8, 2008.

Jasmine was 12 at the time of trial, and she was 10 years old in April 2008.   She lived in the same apartment complex as Michelle and E. She at first testified that appellant would play with them a lot, but later said it was “maybe twice.”   Once when they were playing hide and seek, she hid in the back of appellant's van with appellant, E., and E.'s two brothers.   Appellant tried to touch her breasts.   Appellant was in back of her, and he put both hands on her back ribs, moving toward the front rib area just below the breast.   She thought the hands were moving toward her breasts.   Jasmine immediately got out of the van.   She thought appellant was trying to touch her breasts because she “was like ‘Why is he touching me?’ ”

Later on appellant came up behind her as she hid behind a car.   Appellant pushed her by putting his private area on her buttocks, which knocked her down.   She fell to her knees.   She turned and saw appellant try to put “his middle part against [her] butt.”   She went home, but she told no one about it at first, including her mother.   She later told Michelle's mother, Cynthia.   She did not tell her own mother until she heard that Michelle had told Cynthia that appellant had touched Michelle.

Jasmine acknowledged that in a prior proceeding she told the prosecutor that appellant did not touch her when she fell to the ground, but that she fell to the ground when she saw him behind her.   She did not know why she said that.   It was “like he pushed me.   Like he tried to touch me.”   Later she said she did not know if he actually touched her with any part of his body when he came up behind her.   She did not know if he touched her buttocks.   She then said he thrust at her with his hips, she fell down to her knees, and she left.

Jasmine was not sure, but she thought that Cynthia came to her one day and asked her if appellant had touched her.   Cynthia told Jasmine that appellant had touched Michelle.   Jasmine did not know if she told Cynthia about appellant that same day.2  Jasmine told her mother and Detective Marvin Jaramilla that appellant came and grabbed her from behind while she was squatting behind a parked car.   She told them about being in the back of appellant's van and that E. was there and saw what happened.

Detective Jaramilla investigated the incidents that took place on April 8, 2008.   He interviewed Michelle and E. approximately four and one-half months after the incidents.   At the time, appellant's whereabouts were unknown.   The following month, after appellant was arrested, Detective Jaramilla interviewed Jasmine.   Cynthia had informed him that appellant had abused Jasmine also.   Jasmine told Detective Jaramilla that Michelle and her sister were present when appellant grabbed her.   Jasmine fell on her stomach, and appellant fell on top of her.   Jasmine did not say anything about being in the back of the van with appellant or about his trying to grab her breasts.

Appellant was eventually located in an apartment complex across the street from the one where E. lived.   Detectives Jaramilla and Maribel Rizo went to arrest appellant wearing badges on their waists, next to their side arms.   They also wore name tags and handcuffs.   When the detectives saw appellant, Detective Jaramilla called out appellant's name and identified himself in English and Spanish as a policeman.   Appellant took a step backwards, and the detective believed he was trying to flee.   Detective Jaramilla grabbed appellant's left arm, and appellant jerked violently back and tried to punch the detective.   Appellant continued to be resistive and attempted to thwart the detectives' efforts to handcuff him.   Detective Rizo punched appellant in his upper body, and the detectives were able to handcuff him.   Patrol officers arrived and placed appellant in a patrol car.

Defense Evidence

Dr. Camy Kingston is a clinical neuropsychologist who evaluated appellant's current cognitive functioning, including his I.Q. level, in September 2009.   His memory and executive functioning were also evaluated.   The latter involves behavior management, problem solving, self-control, impulsivity, and emotional lability.   Appellant's I.Q. is 64, and anything below 70 is within the mental retardation range.   Based on appellant's I.Q. and other cognitive impairments, he is functioning consistent with someone who is mentally retarded.   He is impaired in areas of basic attention, processing speed, visual special abilities, fine motor ability, verbal and nonverbal memory, basic common sense, and the majority of executive functioning.   When Dr. Kingston interviewed appellant he was taking psychotropic medications, which improve cognitive functioning.   Appellant said he was not taking any medications in April 2008.   Dr. Kingston did not evaluate appellant's social functioning.   Appellant had a history of severe depression and schizophrenia as well as diabetes and hypertension.   He had been diagnosed with poly-substance dependence.

Dr. Jeffrey Nels Younggren is a forensic and clinical psychologist with an expertise in children's memory.   He testified about human memory function.   Passage of time is the major contaminant for memory.   Older children are better historians than younger children.   In younger children, their personalities, their families, and the manner in which they are questioned affect their memories.   If a child tells his or her version of events differently when interviewed a second time, it is factual evidence of contamination.   Nine-year-olds are generally good historians.   There is no way to tell if the differences in several versions of events are an error of commission.   It could be delayed disclosure or memory contamination.   As children get older they are less suggestible.   Children may disclose events gradually, but there is no evidence that this occurs consistently in reluctant disclosers.   Research shows that only one-fifth of reluctant disclosers do not disclose when asked if they have been abused.   Dr. Younggren believed there had been changes in memory in this case.

Deputy Raul Zuniga of the Los Angeles County Sheriff's Department spoke with Michelle and her mother on the day of the incident.   Michelle was upset and emotional because her mother had spanked her, and her mother confirmed this.   Michelle and E. were not consistent in the stories they told Deputy Zuniga regarding the events of that day.   They both stated they were forced into the van and then stated they were not.

DISCUSSION

I. Appellant's Argument

Appellant contends that Jasmine's account of appellant's conduct was internally inconsistent and inconsistent with the accounts by the other children.   There was insufficient credible evidence to support the verdicts in counts 3 and 7, in which Jasmine was the victim, just as there was insufficient evidence in the counts of which appellant was not convicted.

Appellant points out that the jury did not believe E. or Michelle;  therefore, there was no appreciable reason for the jury to believe Jasmine.   Appellant maintains that Jasmine's account was contaminated by Michelle and E., who talked about what happened to them in front of Jasmine.   Michelle also told Jasmine separately about what appellant had done.   Jasmine's story changed from telling to telling and appellant suggests it was due to repetitive questioning.   Because the evidence in support of the verdicts does not pass constitutional muster, the convictions must be reversed.

II. Relevant Authority

“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that 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. Bolin (1998) 18 Cal.4th 297, 331.)  “The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.”  (People v. Mincey (1992) 2 Cal.4th 408, 432.)   Thus, “our opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment.”  (People v. Hill (1998) 17 Cal.4th 800, 849.)   Reversal is only warranted where it clearly appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ ”   (People v. Bolin, supra, at p. 331.)

Under the prevailing standard of review for a sufficiency claim, we defer to the trier of fact's evaluation of credibility.  (People v. Snow (2003) 30 Cal.4th 43, 66.)   Neither conflicts in the evidence nor “testimony which is subject to justifiable suspicion ․ justify the reversal of a judgment, for it is the exclusive province of the [trier of fact] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.”  (People v. Huston (1943) 21 Cal.2d 690, 693, overruled on another point in People v. Burton (1961) 55 Cal.2d 328, 352.)   We make an exception only when the witness's statements upon which the trier of fact relied are physically impossible or inherently improbable.   To be inherently improbable, the falsity of the statements “ ‘ “ ‘must be apparent without resorting to inferences or deductions.’ ” ' ”  (People v. Sassounian (1986) 182 Cal.App.3d 361, 409.)

III. Evidence Sufficient

Appellant's argument is replete with references to cases in which the courts approve the rejection of testimony that is inherently improbable and therefore incredible.   As a result, the verdicts were deemed to be the result of passion and prejudice.  (See, e.g., People v. Headlee (1941) 18 Cal.2d 266, 267-268.)   Since the testimony of one witness, if believed by the jury, is sufficient to sustain a conviction, we would have to agree with appellant that Jasmine's testimony was outside the realm of possibility in order to reverse.   (Evid.Code, § 411;  People v. Richardson (2008) 43 Cal.4th 959, 1030;  see CALCRIM No. 301.)   We do not agree.

Jasmine's description of the “butt” incident, to employ appellant's terminology, was sufficiently consistent so that the jury could appreciate what had occurred.   Jasmine said appellant used both hands and pulled her back towards him and pushed her to the ground.   In imitating his action, she pulled towards her waist, which would mean appellant pulled Jasmine towards his waist with both hands.   She fell because “he tried to put his middle part on [her] body.”   She pointed to her vaginal area as the area corresponding to the part of appellant's body that he tried to touch against her buttocks.   This occurred when appellant came up behind Jasmine.   She did not tell anyone because she felt she had done something wrong.   She eventually told Michelle's mother, but she did not recall when.

Under cross-examination, Jasmine said appellant put his private area on her buttocks.   She admitted she previously had said he did not hit her with any part of his body because she turned around and then left.   She also said appellant pushed her as he tried to touch her.   She told her mother and Detective Jaramilla that appellant came and grabbed her from behind.   Under redirect she said she did not know if appellant actually touched her with any part of his body or if his middle part touched her body.   But she immediately afterward described again the motion of a thrusting with her hips and a pulling back of both hands with clenched fists.

The variations in Jasmine's accounts of the buttocks incident did not invalidate her testimony when one considers the consistency of what Dr. Younggren described to the jury as the “gist memory,” or the central theme of the memory.   It was reasonable for the jury to infer that appellant made a thrusting motion with his midsection toward Jasmine and simultaneously pulled her toward him, and/or he made such a motion while lying on top of her when she fell to the ground.   Jasmine was generally consistent in her explanation of what occurred in the van when appellant put his hands around her back and rib cage.   She thought he was trying to touch her because his hands were moving towards her breasts, and that is why she got out of the van.

Appellant also alleges that Jasmine came forward only when she heard Michelle's account of what happened on April 8, 2008.   Cynthia testified that Jasmine told her about Jasmine's incident with appellant “way before” the incident with Michelle.   Cynthia later clarified that it was approximately one month before.   The jury was entitled to find Cynthia's account credible.

Inconsistent testimony does not equate to improbable testimony.  (People v. Headlee, supra, 18 Cal.2d at p. 267.)   As appellant has noted, numerous cases have held that a conviction must not be based on the testimony of a complaining witness when that testimony is inherently improbable.  (See, e.g., People v. Casillas (1943) 60 Cal.App.2d 785, 794 [victim's testimony was in one part or another perjurious];  People v. Huston, supra, 21 Cal.2d at pp.   693-694 [discrepancies in child victim's testimony did not vitiate it, and conviction affirmed because testimony not “inherently improbable”];  People v. Headlee, supra, 18 Cal.2d at p. 267 [evidence so improbable as to be incredible and amount to no evidence at all];  and People v. Carvalho (1952) 112 Cal.App.2d 482, 489 [fantastic testimony by alleged victim was inherently improbable and unbelievable per se].)   In order for testimony to be regarded as “inherently improbable,” it must “do violence to reason, challenge credulity, and in the light of human experience, emasculate every known propensity and passion of people under the conditions testified to by [the victim].”  (People v. Carvalho, supra, at p. 489.)   The testimony must “involve a claim that something has been done which it would not seem possible could be done under the circumstances described.”  (Ibid.) Hence, the dismissal of testimony as inherently improbable is appropriate only in the most extreme circumstances, which are not present here.   The jury heard evidence from Dr. Younggren that nine-year-old children are good historians.   Jasmine was 10 years old and very close to her 11th birthday when the touching incident occurred.   Dr. Younggren also testified that most children-approximately 85 percent of them-who are reluctant to disclose an incident of molestation generally do so when asked about it.

Furthermore, the jury was instructed not to “automatically reject testimony because of inconsistencies or conflicts.   Consider whether the differences are important or not.   People sometimes honestly forget things or make mistakes about what they remember.”  (CALCRIM No. 226.)   We see nothing in the record that renders Jasmine's testimony so inherently incredible as to be disregarded.   Under the circumstances of this case, the challenged evidence merely presented a question of Jasmine's credibility and the weight to be given to her testimony.   All of the inconsistencies in Jasmine's testimony that appellant points out were apparent to the jury, which nonetheless believed her.   We conclude that sufficient evidence supports the verdict.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ASHMANN-GERST

We concur:

FOOTNOTES

FN1. The events of April 8, 2008, are included as background.   Appellant was acquitted of the counts and special allegations related to his alleged conduct on that day with two children, E. and Michelle..  FN1. The events of April 8, 2008, are included as background.   Appellant was acquitted of the counts and special allegations related to his alleged conduct on that day with two children, E. and Michelle.

FN2. Cynthia testified that Jasmine told her about her incident with appellant, in which appellant made “an obscene gesture” to Jasmine, “way before” the incident with Michelle and appellant..  FN2. Cynthia testified that Jasmine told her about her incident with appellant, in which appellant made “an obscene gesture” to Jasmine, “way before” the incident with Michelle and appellant.

_, Acting P.J. DOI TODD _, J. CHAVEZ