THE PEOPLE v. JUAN CARLOS ESPARZA (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Juan Carlos Esparza appeals from the judgment entered following his conviction by jury on one count of forcible rape (Pen.Code, § 261, subd. (a)(2)) and one count of sexual battery by restraint (Pen.Code, § 243.4, subd. (a)).¹  Appellant was sentenced to a three-year term on the rape count and a two-year term on the sexual battery count, stayed pursuant to Penal Code section 654.   Appellant contends that the trial court erred in admitting improper rebuttal evidence.   We conclude that appellant forfeited his claim by failing to object in the trial court.   Even if appellant had not forfeited his claim, it is not meritorious.   We therefore affirm.

BACKGROUND

I. Prosecution Evidence

In March 2007, Katherine J. made plans with her roommate, Julia Malloy, to go out for drinks after work.   Katherine had never met appellant, who was Malloy's coworker, but Malloy invited him to join them for drinks, so he was with Malloy when she came home to pick up Katherine.   Malloy drove them to the bar, where Alisha Bell, Katherine's co-worker, joined them.

The four of them stayed at the bar for about two hours, socializing as a group;  Katherine did not view herself as being there with appellant.   Katherine drank a few beers and a shot.

When they decided to go back to Katherine's apartment, Malloy invited appellant to come with them.   Shortly after arriving home, Malloy left to spend the night with her children at her ex-husband's home.   Malloy told Katherine that appellant would be staying at Katherine's house and that Malloy would return in the morning to take appellant home.   Malloy had given appellant rides home from work in the past because he did not have a car.   Malloy did not ask Katherine for permission before inviting appellant to stay.   Katherine had not invited appellant to stay and assumed appellant would sleep on the couch.

Appellant, Katherine, and Bell sat on the couch and watched television.   Bell thought that appellant was interacting more with her than with Katherine.   Bell mentioned that she was taking a jujitsu class and wanted to demonstrate what she had learned, so she and appellant started wrestling.   Bell felt appellant become sexually aroused, so she stopped wrestling with him.   Bell became uncomfortable and decided to go home;  it was around 2:00 a.m. At no time did Katherine wrestle with appellant.   Bell testified that Katherine looked tired and ready for bed, but appellant looked like “he could have partied a little bit longer.”

In Katherine's apartment, there is a door that separates the living room from the two bedrooms.   After Bell left, Katherine said good night to appellant, shut the door separating the living room from the bedrooms, and went into the bathroom to change into pajama pants.   Appellant remained in the living room.

When Katherine emerged from the bathroom and went into her bedroom, appellant was lying on her bed.   The room was dark, so Katherine did not know appellant was there until she got in bed.   When she lay down, appellant put his arm around her.   Katherine asked what he was doing, and he said he just wanted to hold her, but Katherine told him she had a boyfriend.   Appellant continued to insist, so, after a few minutes Katherine walked out of her bedroom and went into Malloy's bedroom and shut the door.   She did not invite appellant to follow her;  rather, she wanted to get away from him.   She never invited appellant to have sex with her.

Katherine was very tired and was feeling the effects of the alcohol, so she lay down on the bed and immediately fell asleep, around 3:30 a.m. She did not feel unsafe because she had told appellant she was not interested in him, so she did not lock the bedroom door.

Around 5:00 a.m., Katherine awakened to find appellant in bed with her, inserting his penis into her vagina.   Katherine tried to push him away, but he turned her onto her back, pinned her down, and penetrated her.   Appellant held Katherine's wrists next to her ears and was forcing her legs apart while Katherine struggled to break free.   Katherine continued to struggle and told him “no” more than a dozen times, but appellant kept telling her, “It's okay, Kate.” Katherine had bruises on her arms and thighs and a scratch on her stomach as a result of the struggle.

Katherine eventually pushed appellant off of her, ran into her bedroom, locked the door, and called her boyfriend, Ben Mathis.   Mathis immediately came over, and he called the police, who arrived in less than five minutes.   Appellant had already left.   Katherine told the police that she had been raped by appellant and that her roommate knew appellant.   After speaking with Malloy on Katherine's cell phone, the police searched for evidence, and one of the officers took Katherine to the hospital for an examination by a forensic nurse, who took photographs and performed other tests.

Officer John Burgos testified at trial that he was one of the officers who responded to the call.   When he arrived, Katherine was very emotional and started to cry when she tried to tell him what had happened.   Katherine eventually gave Burgos a statement consistent with her testimony set forth above.

Detective Grant Curry testified that he interviewed appellant at the police station.   Appellant told Curry that he was with Katherine on the bed in Malloy's bedroom, and they were touching each other's legs.   Appellant removed Katherine's pants, and she unbuttoned appellant's pants, but when they started to have sex, Katherine told him to stop.   He then held her wrists down by her head.

Curry said that appellant's initial story was that, after Katherine said “no,” she pushed him away, ran out of the room, and locked her bedroom door.   He heard her crying and talking on the phone and decided to leave.   Appellant's second story was that, after Katherine said “no,” he held her wrists down and forced her legs apart and had sex with her.   He let go of her, and she left the room crying.   Appellant told Curry that Katherine told him “no” two times.

Curry testified that appellant never told him that Katherine unzipped his pants and was moving her body closer to his while lying on the bed.   Curry further testified that appellant never stated that the sex was consensual, but only that the initial lying down and touching each other's legs was consensual.

At the close of the prosecution's evidence, the trial court dismissed count one of the information on the People's motion.

II. Defense Evidence

Paola Luna testified that she had known appellant for 11 or 12 years and dated him for about two years.   She testified that she never had intercourse with appellant, he never pressured her to do so, and he never attempted to touch her in a way to which she did not consent.

Appellant testified that Malloy invited him to go to the bar with her and Katherine and that they spent time together as a group while they were at the bar.   Appellant testified that there was no physical contact when they went to Malloy and Katherine's apartment and watched television.   He testified about wrestling with Bell, but he further testified that he wrestled with Katherine for a few minutes.   After they wrestled, he carried Katherine to her room and put her on her bed.   Katherine went to the bathroom to change, but she did not return, so appellant looked for her and found her in Malloy's room.   Appellant asked if she wanted to go back to her bed with him, and she said “no,” but she agreed to allow appellant to lie on Malloy's bed next to her.   Under cross-examination, appellant testified that Katherine had not done anything to indicate that she wanted to have sex with him.

According to appellant, Katherine grabbed his leg and started moving closer to him, and he started touching her.   Appellant testified that Katherine lowered her pants and started rubbing his penis, so he inserted it into her.   She turned onto her back, and he climbed on top of her, and they started having sex, but she then said “no.”   Appellant testified that Katherine never resisted and that he stopped after she said “no” a second time.   Katherine ran out of the room and started crying, so appellant asked if she was okay, but she did not respond.

III. Rebuttal Evidence

Katherine testified on rebuttal that, after Bell left, she walked to her room, closed the door between the living room and the bedrooms, and never invited appellant into her bedroom or Malloy's bedroom.   She did not see appellant until she got into her bed.   He wanted to cuddle with her, but she said “no” because she had a boyfriend.   She was exhausted, so she went into Malloy's bedroom and shut the door.   Katherine testified that she never unbuckled appellant's pants, touched him, or moved closer to him.   As soon as she felt appellant penetrating her, she pushed him away and told him to stop, but he was too strong for her to resist.

Curry testified that, when he interviewed appellant after the incident, appellant never told him that he carried Katherine into her bedroom after wrestling with her.   Nor did appellant tell Curry that he went to look for Katherine after she left to change her clothes, or that Katherine invited him into the bed in Malloy's bedroom.   Appellant did not tell Curry that Katherine unzipped his pants, pulled his pants down, and rolled onto her back to have sex.   Curry further testified that appellant did not tell him that he tried to talk to Katherine when he heard her crying in the other room.

The jury found appellant guilty of forcible rape and sexual battery by restraint, but not guilty of rape of an intoxicated person or rape of an unconscious person.   The trial court sentenced appellant to the low term of three years as to the forcible rape count and imposed and stayed, pursuant to Penal Code section 654, the low term of two years as to the sexual battery count.   Appellant received credit for 56 days of actual custody and 11 days of conduct credit, for a total of 67 days.   Appellant filed a timely notice of appeal.

DISCUSSION

Appellant's sole contention on appeal is that the trial court erroneously allowed improper rebuttal evidence to be presented.   However, appellant concedes that he did not object to the rebuttal evidence when it was presented.

“[N]umerous decisions by [the California Supreme Court] have established the general rule that trial counsel's failure to object to claimed evidentiary error on the same ground asserted on appeal results in a forfeiture of the issue on appeal.”  (People v. Dykes (2009) 46 Cal.4th 731, 756.)   Appellant acknowledges that counsel forfeited this claim by failing to object and therefore argues that he was denied the effective assistance of counsel by counsel's failure.  “There are two components to an ineffective assistance of counsel claim:  deficient performance of counsel and prejudice to the petitioner.  Strickland v. Washington (1984) 466 U.S. 668, 697 [104 S.Ct. 2052, 80 L.Ed.2d 674], informs us that ‘there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.   In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.   The object of an ineffectiveness claim is not to grade counsel's performance.   If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.’ ”  (In re Cox (2003) 30 Cal.4th 974, 1019-1020.)   Here, even if counsel's performance was deficient (an issue we do not decide), appellant suffered no prejudice, because the rebuttal evidence was admissible.

“The decision to admit rebuttal evidence rests largely within the discretion of the trial court and will not be disturbed on appeal in the absence of demonstrated abuse of that discretion.  [Citations.]  ․ ‘[P]roper rebuttal evidence ․ is restricted to evidence made necessary by the defendant's case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt.’   Restrictions are imposed on rebuttal evidence (1) to ensure the presentation of evidence is orderly and avoids confusion of the jury;  (2) to prevent the prosecution from unduly emphasizing the importance of certain evidence by introducing it at the end of the trial;  and (3) to avoid ‘unfair surprise’ to the defendant from confrontation with crucial evidence late in the trial.”  (People v. Young (2005) 34 Cal.4th 1149, 1199.)

Katherine's rebuttal testimony responded to appellant's testimony that Katherine consented to his presence in bed with her, unbuckled his pants, touched him, and moved closer to him.   Her rebuttal testimony also responded to appellant's testimony that she consented to having sex with him before she said “no” to him.

Curry's rebuttal testimony similarly responded to appellant's testimony that he wrestled with Katherine before going into her bedroom and waited for her to change her clothes.   Curry's testimony also rebutted appellant's testimony that Katherine initiated sexual contact and that appellant tried to talk with Katherine before leaving the apartment.   The rebuttal evidence was not improper.   Thus, it is not reasonably probable that, in the absence of counsel's alleged error in failing to object, the outcome of the trial would have been different.  (Strickland, supra, 466 U.S. at p. 694.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. The jury found appellant not guilty of two counts, rape of an intoxicated person and rape of an unconscious person.  (Pen.Code, § 261, subds.(a)(3) & (4).).  FN1. The jury found appellant not guilty of two counts, rape of an intoxicated person and rape of an unconscious person.  (Pen.Code, § 261, subds.(a)(3) & (4).)

EPSTEIN, P.J. MANELLA, J.