People v. Buenrrostro CA4/1 (2016) · DecisionDepot
People v. Buenrrostro CA4/1
California Court of Appeal Aug 2, 2016 No. D067985Unpublished
Filed 8/2/16 P. v. Buenrrostro CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067985
Plaintiff and Respondent,
v. (Super. Ct. No. SCD253505)
KLIEVER IVAN BUENRROSTRO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Robert F.
O'Neill, Judge. Affirmed in part; reversed in part; remanded for resentencing.
Buckley & Buckley and Christian C. Buckley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Garland and Alan L.
Amann, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Kliever Ivan Buenrrostro appeals from a judgment of conviction after a jury
convicted him of 10 counts of committing a lewd act upon a child (Pen. Code, § 288,
subd. (a)).1 The offenses occurred between 2002 and 2013 and involved six victims. As
to each count, the jury found that Buenrrostro committed the offense against more than
one victim (§ 667.61, subds. (b), (c) & (e)). The trial court sentenced Buenrrostro to 135
years to life in prison.
On appeal, Buenrrostro contends that the trial court should have dismissed several
charges based on preaccusation delay. He argues that he was unduly prejudiced by the
delay because witnesses' memories had faded and he was unable to conduct a full
investigation, including locating witnesses. Additionally, Buenrrostro contends that the
trial court erred in concluding that the delay in charging him was justified due to the fact
that the investigation of the case was ongoing.
Buenrrostro also argues that the trial court abused its discretion by admitting
childhood photographs of each victim to show what they looked like at or near the time
of the offenses. Specifically, he contends that the photographs had no probative value
and that the prosecutor used them to evoke an emotional reaction from the jury.
Finally, Buenrrostro argues that the trial court erred by imposing separate life
sentences on counts 6 and 8 because the version of the "One Strike" law in effect at the
1 Unless otherwise specified, all subsequent statutory references are to the Penal Code.
2
time he committed those offenses permitted only one indeterminate term for offenses
committed during a single occasion. Buenrrostro contends that the trial court failed to
apply the prior version of the One Strike law and requests that we remand the matter for
the trial court to determine whether counts 6 and 8 occurred during a single occasion.
We reject Buenrrostro's claims concerning prejudicial preaccusation delay and
admission of the photographs of the victims, but agree with his contention regarding
sentencing error. We therefore affirm Buenrrostro's convictions and remand the case to
the trial court to determine whether counts 6 and 8 occurred on a single occasion and, if
necessary, resentence Buenrrostro on those counts.
II.
FACTUAL AND PROCEDURAL BACKGROUND2
A. Factual Background
1. M.V.
In 2004, Buenrrostro married Daisy Cortez. They hosted a wedding celebration at
their home. Daisy's 12-year-old cousin, M.V., attended the celebration. That night, M.V.
went to sleep in Daisy's bedroom. M.V. woke up when she felt someone touching her.
Buenrrostro had unbuttoned M.V.'s pants, lowered her pants and underwear, and was
touching her above her vagina, underneath her underwear. Buenrrostro stopped when
2 We provide only a summary of the evidence presented at trial. Our summary is intended to provide a sufficient background for consideration of Buenrrostro's claims on appeal, rather than to provide an exhaustive recitation of all of the evidence presented at trial.
3
someone knocked on the door. The next day, M.V. told her mother what had happened,
but they did not report it to the police.
2. M.Q.
Daisy's cousin, M.Q., first met Buenrrostro when she was four or five years old.
In 2002, during a visit to M.Q.'s house, Buenrrostro entered her bedroom, told her to lie
down on the floor, pulled her pants down, and rubbed his penis on her vagina.
Buenrrostro later took M.Q. to a gas station to buy candy. When they returned to M.Q.'s
house, Buenrrostro parked the car, tilted the seats back, and rubbed M.Q.'s vaginal area
over her clothing.
A few months later, M.Q. went with her family to Buenrrostro's residence. While
M.Q. was playing in a bedroom, Buenrrostro entered the room and rubbed her vaginal
area over her clothing. He did this multiple times over the course of that evening.
When M.Q. was in high school, her mother placed her in counseling. After M.Q.
revealed that she had been molested, her counselor made a report to Child Protective
Services. In 2013, the San Diego Police Department interviewed M.Q., who recounted
three incidents of molestation by Buenrrostro.
3. C.V.
In 2004, when C.V. was approximately eight or nine years old, she lived two
houses away from Buenrrostro and Daisy. C.V. and her brothers occasionally visited
Buenrrostro's residence to play video games and see his puppies. On one occasion, C.V.
was in a bedroom while her brothers were in the living room. Buenrrostro shut the
bedroom door and proceeded to kiss C.V. on her mouth, neck and chest. Buenrrostro
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then pulled C.V.'s pants down and orally copulated her. C.V. yelled, but Buenrrostro
restrained her and told her to be quiet.
On another occasion, Buenrrostro tried to pull down C.V.'s shorts and put his
penis inside her vagina, but was unsuccessful. He also tried to have sexual intercourse
with her on other occasions. Another time, Buenrrostro tried to kiss C.V. and touch her
vagina underneath her clothing. Buenrrostro also exposed his penis to C.V. and
attempted to force her to orally copulate him multiple times.
In 2005, Buenrrostro moved to Mexico. When Buenrrostro returned to San Diego
in 2009, C.V. saw him and was scared. At that point, C.V. told her mother about the
molestations. C.V.'s mother called the police. When the police interviewed C.V., she
disclosed multiple incidents of molestation by Buenrrostro. The police submitted the
case to the district attorney's office.
4. I.C. and Y.M.
I.C. and Y.M. are cousins. Buenrrostro was a friend of Y.M.'s uncle. Around
2004, while Y.M. was watching television at her father's home, Buenrrostro entered the
room, lay down next to Y.M., and touched her vagina underneath her clothing. No one
else was in the room at that time. Y.M. told her mother what had happened. Y.M.'s
mother did not report the incident to the police.
In early 2005, Y.M.'s mother hosted a party at their home. I.C., who was
approximately six years old at the time, attended the party. During the party, Buenrrostro
inappropriately touched I.C. at least four times, including touching her butt and vagina
outside of her clothing.
5
When Buenrrostro left the party, I.C. told her mother about how Buenrrostro had
touched her. Y.M. informed I.C.'s mother that Buenrrostro had molested her a year
earlier. I.C.'s mother called the police.
I.C. and Y.M. told officers that Buenrrostro had touched them inappropriately.
During a forensic interview, I.C. explained that Buenrrostro had touched her butt and
vaginal area. In a separate forensic interview, Y.M. stated that Buenrrostro had touched
her vaginal area. The San Diego Police Department submitted a report of the incidents to
the district attorney's office.
5. A.C.
In August 2013, 11-year-old A.C. was taking a shower when the bathroom
window broke, cutting her arm and head. A.C. put on her underwear, covered herself
with a towel, and yelled for her brother to help her. Buenrrostro, who had been living in
the garage of the residence where A.C. and her family lived, entered the bathroom and
closed the door. Buenrrostro treated A.C.'s injuries and then rubbed her vagina
underneath her underwear and kissed and licked her stomach.
In November 2013, A.C. told a counselor at her school what Buenrrostro had done
to her. The counselor reported the incident to Child Protective Services. A Child
Protective Services social worker interviewed A.C. A.C. told the social worker that
Buenrrostro had touched her vagina and kissed her breast area. The social worker
referred the case to the San Diego Police Department. In January 2014, the San Diego
Police Department arrested Buenrrostro.
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B. Procedural Background
In January 2014, the People filed a complaint charging Buenrrostro with two
counts of lewd and lascivious acts committed upon A.C. Approximately two weeks later,
the People amended the complaint to add three additional counts of lewd and lascivious
acts committed upon Y.M. and I.C. Shortly thereafter, the district attorney's office
reassessed the allegations of molestation pertaining to C.V., which it had rejected in
2010. The People then issued a separate case in February 2014, charging Buenrrostro
with sexual acts committed against C.V. Those charges were consolidated with the other,
previously filed charges against Buenrrostro.
While investigating M.Q.'s allegations of molestation, which had been reported to
the police in September 2013, the police learned that Buenrrostro had molested M.V. in
2004. M.V. confirmed that Buenrrostro had molested her. In April 2014, the district
attorney's office filed charges against Buenrrostro for the lewd and lascivious acts
committed upon M.Q. and M.V. Those charges were consolidated with the other charges
against Buenrrostro.
III.
DISCUSSION
A. Preaccusation delay
Buenrrostro contends that the trial court should have granted his motion to dismiss
the counts pertaining to I.C., Y.M., and C.V. on the basis that the preaccusation delay
was unjustified and prejudicial, denying him due process and a fair trial under the state
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and federal Constitutions.3 According to Buenrrostro, the delay prejudiced him because
witnesses' memories had faded and he was unable to locate witnesses. Additionally,
Buenrrostro argues that the trial court erred in concluding that the delay in charging was
justified by the fact that the investigation was ongoing because nothing had changed
between the time the district attorney's office originally declined to prosecute the charges
and the time it reexamined the charges in 2014.
1. Applicable Law
"Delay in prosecution that occurs before the accused is arrested or the complaint is
filed may constitute a denial of the right to a fair trial and to due process of law under the
state and federal Constitutions. A defendant seeking to dismiss a charge on this ground
must demonstrate prejudice arising from the delay. The prosecution may offer
justification for the delay, and the court considering a motion to dismiss balances the
harm to the defendant against the justification for the delay. [Citations.] In addition, a
claim based upon the federal Constitution requires a showing that the delay was
undertaken to gain a tactical advantage over the defendant." (People v. Catlin (2001) 26
Cal.4th 81, 107 (Catlin).)
"Under this balancing test, the trial court undertakes a delicate weighing of
interests to determine whether preaccusation delay has deprived the defendant of due
process: '[A] minimal showing of prejudice may require dismissal if the proffered
3 Prior to trial, Buenrrostro moved to dismiss all charges against him based on preaccusation delay. On appeal, Buenrrostro restricts his argument to the charges on which he was convicted pertaining to I.C. (count 3), Y.M. (count 5), and C.V. (counts 6 and 8). Accordingly, we limit our discussion to the challenged counts.
8
justification for delay is insubstantial. By the same token, the more reasonable the delay,
the more prejudice the defense would have to show to require dismissal.' " (People v.
New (2008) 163 Cal.App.4th 442, 459-460 (New).)
We review the trial court's ruling on a motion to dismiss based on preaccusation
delay for abuse of discretion, deferring to any underlying factual findings made by the
court so long as they are supported by substantial evidence. (People v. Cowan (2010) 50
Cal.4th 401, 431 (Cowan).) Whether a delay was prejudicial to the defendant is a
question of fact. (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911-912.)
Prejudice may not be presumed. (People v. Abel (2012) 53 Cal.4th 891, 908-909; People
v. Nelson (2008) 43 Cal.4th 1242, 1250 (Nelson).)
2. Additional background regarding Buenrrostro's motion to dismiss
In March 2005, I.C. and Y.M. told officers that Buenrrostro had molested them.
The police detained Buenrrostro pending further investigation of the matter. The police
subsequently investigated I.C.'s and Y.M.'s allegations, including conducting forensic
interviews of the victims and interviewing witnesses, and submitted the cases to the
district attorney's office. In late March 2005, the district attorney's office declined to
prosecute the cases.
In 2009, when C.V. was 13 years old, the police investigated her claims that
Buenrrostro had molested her in 2004. After interviewing Buenrrostro and conducting a
forensic interview of C.V., the police submitted the case to the district attorney's office.
In February 2010, the district attorney's office declined to prosecute the matter.
9
In 2014, the police arrested Buenrrostro for crimes against A.C. When the district
attorney's office reviewed A.C.'s case, it reexamined the cases pertaining to I.C., Y.M.,
and C.V. and decided to charge Buenrrostro with crimes against those victims as well as
A.C.
Prior to trial, Buenrrostro moved to dismiss the charges against him pertaining to
I.C., Y.M., and C.V. According to Buenrrostro, he could not remember possible
witnesses who may have been present during the alleged crimes and many defense
witnesses were no longer available to testify because they had died, could not be located,
or had been deported.
Buenrrostro also argued that crucial evidence had been lost or destroyed as a result
of a "substandard law enforcement investigation." According to Buenrrostro, this
evidence included DNA that could have been collected through medical examinations
and witnesses who could have been located if the police had interviewed neighbors and
canvassed the surrounding area.
Buenrrostro further argued that the prosecution did not have a justification for the
delay. Specifically, he contended that the police had stopped investigating the case, and
that they had not located additional witnesses or found new evidence that had been
previously unavailable.
The trial court denied Buenrrostro's motion without prejudice so that he could
raise it again after the court heard the evidence at trial. After the close of evidence,
Buenrrostro renewed his motion. Buenrrostro again argued that the delay in charging
him had hindered his defense because he was unable to locate witnesses and favorable
10
evidence. Defense counsel argued, "[i]f there wasn't the several years' delay, I bet our
investigator would have found people that are non-family that were there to maybe
corroborate statements that were helpful to [Buenrrostro]."
The trial court denied Buenrrostro's motion, concluding that his claim of prejudice
was unsubstantiated because the evidence presented at trial had not revealed any potential
defense witnesses and Buenrrostro had not identified any lost witnesses nor described any
efforts to locate such witnesses. The court further concluded that the prosecution had not
caused the delay and that "[t]he case has remained under investigation."
3. The trial court acted within its discretion in denying Buenrrostro's motion to
dismiss
a. Prejudice
Buenrrostro argues that the preaccusation delay prejudiced him because witnesses'
memories had faded and the delay deprived him of the ability to locate witnesses who
could provide testimony that would impeach the victims and otherwise exculpate him.
" '[P]rejudice [for preaccusation delay claims] may be shown by loss of material
witnesses due to lapse of time [citation] or loss of evidence because of fading memory
attributable to the delay.' " (Catlin, supra, 26 Cal.4th at p. 107.) However, "speculation
about prejudice because potential witnesses' memories have failed or because witnesses
and evidence are now unavailable is insufficient to discharge defendant's burden.
[Citation.] A particular factual context must be established in which a specific claim of
prejudice can be evaluated." (Shleffar v. Superior Court (1986) 178 Cal.App.3d 937,
946, italics added.)
11
Buenrrostro's prejudice claim is speculative. He never provided the trial court
with specific information as to witnesses who were unavailable or of efforts to locate
witnesses. Further, he did not provide any details or a factual context for the purported
exculpatory evidence that these witnesses could have provided. Instead, defense counsel
merely argued, "[i]f there wasn't the several years' delay, I bet our investigator would
have found people that are non-family that were there to maybe corroborate statements
that were helpful to [him]." Buenrrostro did not elaborate concerning any statements that
were helpful to him. Counsel's "bet" that he could have found helpful witnesses if the
charges had been brought at an earlier date does not constitute a sufficient showing of
prejudice. (People v. Conrad (2006) 145 Cal.App.4th 1175, 1184 [defendant's claim that
a witness "could have" testified to certain facts was speculation and insufficient to
establish prejudice].)
Buenrrostro argued that he could not make specific representations about potential
witnesses and what they would say because the preaccusation delay prevented him from
ascertaining the identities of those witnesses. However, Buenrrostro was aware of I.C.'s
and Y.M.'s accusations near the time the crimes took place and thus, he had an incentive
to record exculpatory information at that time. I.C.'s mother confronted Buenrrostro on
the night he inappropriately touched I.C. That same night, I.C. told the police about what
had occurred and Y.M. reported that Buenrrostro had inappropriately touched her a year
earlier. Buenrrostro knew of these allegations against him because the police detained
him at the time. Under these circumstances, Buenrrostro cannot persuasively claim that
the preaccusation delay prejudiced him because he could have recorded information
12
about any potential exculpatory witnesses and evidence at or near the time the
accusations were made. (Cowan, supra, 50 Cal.4th at p. 432 [concluding that defendant
did not suffer prejudice because he knew he was a suspect and "had an incentive to
record any exculpatory information he had regarding his whereabouts, the property, or
the identity of alibi witnesses."].)
Additionally, there was no evidence presented at trial suggesting that there were
any witnesses who could have provided exonerating evidence. It is undisputed that
Buenrrostro was present at the locations and times of the acts charged. The crimes
occurred in private, outside the presence of others. Thus, it is unlikely that any witnesses
could have provided evidence demonstrating that the crimes did not in fact occur. (See
People v. Cordova (2015) 62 Cal.4th 104, 120 [claimed prejudice is speculative when
"[n]o reason exists to believe witnesses would have supplied exonerating, rather than
incriminating, evidence, or any evidence at all."].)
Buenrrostro also argues that he was prejudiced because the victims' memories had
faded over the years. Specifically, he contends that I.C. had told a variety of different
stories about what Buenrrostro had done to her and how many times it happened, Y.M.
could not recall details about the incident, and C.V. was uncertain about the exact time
period when the events occurred. According to Buenrrostro, he could have more fully
explored conflicts in these victims' testimony if he had been able to conduct a
contemporaneous investigation.
I.C. testified to specific details about what Buenrrostro had done to her and where
the incidents took place. She underwent a recorded forensic interview two days after
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Buenrrostro's crimes against her in March 2005. Although there were some discrepancies
between I.C.'s statements near the time of the crimes and her trial testimony, Buenrrostro
has not identified how a contemporaneous investigation would have assisted him in
explaining the discrepancies. He merely argues that a contemporaneous investigation
would have aided him in "providing information about who [he] was years earlier."
However, as previously noted, Buenrrostro was aware of I.C.'s accusations against him in
2005 and thus had an incentive to record any exculpatory information.
At trial, Y.M. could not recall certain details about Buenrrostro's crimes against
her, particularly the dates when the crimes occurred. She could not remember the same
details in her forensic interview that took place approximately one year after the crimes.
Thus, even if the prosecution would have charged Buenrrostro in 2005 with the crimes he
committed against Y.M., he would not have had any more specific information
concerning the dates of crimes at that time.
The same is true with respect to C.V. Although C.V. could not recall precise
details about the dates when the crimes occurred, she testified that the first incident
occurred when she was eight or nine years old, which was between August 2003 and
August 2005, and that all of the crimes took place before Buenrrostro moved to Mexico
in 2005. C.V. did not report the abuse until 2009, and had trouble remembering details
about dates during her 2009 forensic interview. As the prosecution's expert explained,
children reporting sexual abuse often delay reporting and are unable to recall specific
dates or to report incidents in a sequential manner. Therefore, even if the prosecution had
moved forward with the case in 2009, C.V. would not have been able to recall the exact
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time period during which the molestations occurred. Buenrrostro thus has not shown that
he was prejudiced by the delay in charging the offenses against C.V. due to her inability
to recall details of the offenses.
Buenrrostro next contends that the preaccusation delay prevented him from
"conduct[ing] contemporaneous interviews to support his Stoll defense." In People v.
Stoll (1989) 49 Cal.3d 1136, the California Supreme Court explained that Evidence Code
section 1102 "allows an accused to present expert opinion testimony . . . to indicate his
nondisposition to commit a charged sex offense." (Id. at p. 1153.) At trial, Buenrrostro
presented several character witnesses who testified that they had never seen him touch
children inappropriately. He also presented expert testimony from a psychologist who
opined that Buenrrostro was not sexually deviant or a pedophile and that he did not
demonstrate the red flags typically found in cases of pedophilia or sexual deviance.
Buenrrostro has offered nothing more than a conclusory claim that the preaccusation
delay hampered his Stoll defense. He does not explain how additional witnesses could
have supplemented the expert opinion's testimony concerning Buenrrostro's lack of
predisposition to commit the charged sex offenses. Accordingly, he has failed to
establish prejudice in this regard.
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b. Justification
Even if Buenrrostro had made a showing of prejudice, the trial court did not abuse
its discretion by impliedly concluding that the prosecution's justification for the delay
outweighed any prejudice.
In an attempt to demonstrate that the prosecution was not justified in charging him
with crimes committed against I.C., Y.M., and C.V., Buenrrostro asserts that the police
neither continued to investigate those crimes nor discovered new evidence between the
time the district attorney's office originally declined to prosecute the matters and when he
was charged in 2014. Buenrrostro asserts that the prosecution charged him with the
earlier crimes only as a result of its investigation of A.C.'s case. He argues that this is not
sufficient to support the trial court's conclusion that there was an ongoing investigation.
Buenrrostro's arguments are not persuasive. In Catlin, our Supreme Court
explained:
" 'Prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt. . . . Investigative delay is fundamentally unlike delay undertaken by the government solely to gain tactical advantage over an accused. . . . A prosecutor abides by elementary standards of fair play and decency by refusing to seek indictments until he or she is completely satisfied the defendant should be prosecuted and the office of the prosecutor will be able to promptly establish guilt beyond a reasonable doubt.' " (Catlin, supra, 26 Cal.4th at p. 109.)
In that case, the court concluded that filing murder charges in 1985 alleging that
the defendant had murdered his wife in 1976 by poisoning her with paraquat did not
violate due process. The court reasoned that the evidence available prior to 1984 made it
16
"extremely difficult or impossible to make out a case against defendant at or near the time
of the murder," but that "[b]y the time defendant was charged, of course, additional
evidence of his guilt had emerged—particularly his involvement in the paraquat
poisoning of two more persons." (Catlin, supra, 26 Cal.4th at p. 109, italics added.)
Contrary to Buenrrostro's argument, something significant did occur between the
time the district attorney's office originally reviewed the allegations concerning I.C.,
Y.M., and C.V. and the time it charged Buenrrostro with those crimes in 2014.
Specifically, another victim, A.C., reported that Buenrrostro molested her. This fact
constitutes new evidence that corroborates the other charges. (See New, supra, 163
Cal.App.4th at p. 465 [delay in charging defendant with the murder of his first wife was
justified because new evidence had emerged to establish that defendant shot her, namely,
defendant's third wife also died in their home from a gunshot wound]; Catlin, supra, 26
Cal.4th at p. 109.)
Evidence Code section 1108 permits courts to admit propensity evidence in sex
offense cases. " ' "This includes consideration of the other sexual offenses as evidence of
the defendant's disposition to commit such crimes, and for its bearing on the probability
or improbability that the defendant has been falsely or mistakenly accused of such an
offense." ' " (People v. Falsetta (1999) 21 Cal.4th 903, 912.) " 'The Legislature has
determined the need for this evidence is "critical" given the serious and secretive nature
of sex crimes and the often resulting credibility contest at trial.' " (Id. at p. 911.)
Accordingly, evidence that Buenrrostro committed sex offenses against A.C. could be
used to establish that he committed sex offenses against I.C., Y.M., and C.V., making
17
those cases stronger than they were when the district attorney's office originally assessed
them.
The police were not actively seeking new witnesses or evidence, but they obtained
new evidence when A.C. reported Buenrrostro's crimes against her. When the
prosecution waits to bring charges until it has sufficient evidence to support those