P. v. Salazar 12/12/06 CA3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C050817

Case Date: 03/28/2007

Preview:Filed 12/12/06

P. v. Salazar CA3

NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, Plaintiff and Respondent, v. ROLANDO DEJESUS SALAZAR, Defendant and Appellant. C050817 (Super. Ct. No. 03F06229)

A jury convicted defendant Rolando Salazar of forcible sexual penetration based upon his digital penetration of the vagina of a girl (the victim) when defendant was 40 years old and the victim was 14 years old. The trial court sentenced

defendant to the upper term of eight years in state prison. On appeal, defendant contends the verdict is not supported by substantial evidence. He also contends that his conviction

must be reversed because of prosecutorial misconduct, ineffective assistance of counsel, and instructional error, or because of the cumulative effect of the errors at trial. In addition, defendant

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challenges the imposition of the upper term. judgment. FACTS

We shall affirm the

The victim, who was 17 years old at the time of trial, testified that defendant worked with her father, selling and delivering meat. The two men were friends outside of work also.

From the time the victim was eight years old, she accompanied her father to work several nights a week. When her father

became the manager, she assisted him in the office and played pool with the men who worked there. The victim would joke with

the men, including defendant, and would let them know when it was her birthday, hoping they would buy her a present. When the victim was 12 years old, defendant started talking "dirty" to her. For example, he asked to see her in a wet T-shirt.

When she was 13, he asked when he was going to see her in a thong. Defendant rubbed her "behind" with his hand when she leaned over to take a shot while playing pool. He touched her bottom a couple of

times, but the victim did not say anything to defendant or to her parents about defendant's conduct. On May 23, 2003, when the victim was 14 years old, she and her girlfriend (friend) decided to "ditch" school. After leaving

the campus, the girls wanted to go somewhere but needed a ride, so the victim decided to call defendant because he was "cool" and "easy going." She knew his cell phone number, having called him The victim

several times on her father's behalf regarding work.

telephoned defendant, told him she and her friend were ditching school, and asked if he would give them a ride. 2

Defendant left work, drove 20 to 25 minutes, and picked up the girls. When he arrived, they asked him to drive them to a

movie theater, but he suggested they go to Discovery Park instead. On the way to the park, defendant stopped at a liquor store and bought vodka, which they drank after they arrived at the park. At one point, while they were sitting on a bench defendant put his hand under the victim's T-shirt, but over her undershirt, and touched her breast. This made the victim feel "[w]eird."

The girls then walked to another part of the park to watch the boats. According to the friend, defendant made inappropriate

"sexual" comments about wanting to see the girls in wet T-shirts or swimming in their underwear. Defendant pretended to try to

throw the victim into the water, and the two wrestled playfully for about 10 to 15 minutes. the ground. While they were wrestling, they fell to

The victim bit defendant's arm because she "was trying The friend thought the bite might She left the area and

to get him . . . off of [her]."

have been a signal to defendant to stop.

went to the restroom because she felt "a little uncomfortable." She could not tell if their actions were "okay"; it seemed like they were "joking around," but "it just still didn't sit right with [her]." She asked the victim to go to the restroom with her, but

the victim did not accompany her. After the friend left, defendant tried to kiss the victim on the lips. He held her by both wrists so she could not get away.

She asked him to stop, but he held her wrists "very firmly" and said, "[N]o, you know you want to kiss me" and "you know you want to fuck me." The victim yelled for her friend and repeatedly told 3

defendant to stop and that she wanted to leave.

Defendant tried

to kiss her again, but the victim moved her head to prevent him from kissing her on the mouth. Defendant got behind the victim and, while holding one of her wrists, he put his other hand down her pants. a finger into her vagina, which hurt her. and kept yelling for her friend. He inserted

The victim was scared

She struggled to get away, but The victim

could not stop defendant because "he had [her] wrist."

testified she never gave defendant permission to insert his finger in her vagina. After defendant removed his hand from her pants, the victim saw her friend returning from the bathroom, and took her back into the bathroom to tell her what had occurred. The victim cried as

she said defendant touched her with his hand down her pants. The friend told the victim to fix herself up; they then left the bathroom and tried to appear normal because they needed a ride back to school. Defendant drove them back to school in time for

the victim's mother to pick them up. The next morning, the victim told Mark, one of her father's coworkers, what had happened. With his encouragement, she told She also reported it to the

her parents about the incident. police.

According to one of the officers, the victim was very She said that

emotional and was crying during her statement.

she had a bruise on her left wrist, but the bruise was not visible in the photographs shown to the jury. A few days later, the victim spoke with Detective Gerald Roth. Roth observed that the victim seemed young for her age, cried while 4

talking to him, and was embarrassed when she discussed the more intimate details of the incident. She agreed to make a pretext A couple of

call to defendant, but he did not answer his phone.

hours after Detective Roth left, the victim called defendant again and recorded the conversation on her own tape recorder. She then

contacted Roth and told him that defendant had denied he had been with her, which upset her. she was a "slut." The victim and Roth made another pretext call on June 3, 2003. Defendant initially denied touching the victim, but then stated repeatedly that he had made a "mistake." When the victim asked She was concerned people would think

why he put his hand down her pants, defendant replied he was "just playing around," asked if she had told the police, and asked her to forgive him. The victim responded, "[B]ut you put your finger Now like it's going to be . . . weird

inside me and everything. being around you."

Defendant replied that he knew and that it was

a terrible mistake, and then asked if the police were listening to their conversation. The victim denied the police were involved,

whereupon defendant repeated his request for forgiveness, stating he had been "confused" and "wish[ed he] never did it." The victim

repeated that defendant had put his finger inside her and that it hurt, to which defendant replied, "Yeah, . . . like I said, you know, I made a huge mistake . . . ." On June 5, 2003, defendant told a coworker, Kenneth, about taking the victim to the "river." Defendant said he had been

drinking, "something had went [sic] wrong," and he had put his hand down the victim's pants and inserted a finger in her vagina. 5

Defendant told Kenneth, "It was just my finger."

He said he was Defendant

afraid to go to work and face the victim's father.

stated the police had come to his house and wanted to speak to him. Defendant wanted to leave the area and go to El Salvador He asked for money, but Kenneth refused

or Southern California. to give him any.

That was the last time Kenneth saw defendant,

who first went to Los Angeles and then Atlanta, Georgia. Defense Defendant, who was 42 years old at the time of trial, testified on his own behalf. He said he became friends with the

victim in 2003, and sometimes she called him on his cell phone to talk about school. They also played pool at work. Defendant

denied telling the victim he wanted to see her in a thong or a wet T-shirt, and denied touching her bottom when they played pool. They "used to flirt basically, but nothing else." He thought the

victim was interested in him sexually because she had been calling him for months, and "didn't seem like a kid anymore." Defendant admitted (1) picking up the victim and her friend on May 23, 2003, (2) buying vodka, (3) driving to Discovery Park, and (4) giving the girls vodka. After they finished their drinks, The victim

he jokingly suggested, "[L]et's swim, let's get wet."

told defendant, "You first," and then they tickled and shoved each other playfully. After about five minutes, the victim bit his arm.

He stood up and called her a "little shit," which was his "nickname for her at work." action. He did not interpret the bite as a defensive

At that point, the friend announced that she was going

to the bathroom and left. 6

According to defendant, he and the victim sat watching the boats, and when she began walking up the slope, he "had the bright idea of approaching her." He walked up behind her, placed his

hands on her hips, and when she stopped walking, he put his "right arm on her stomach and . . . rubbed her a couple of times." She turned and said, "What's up?" and defendant replied, "Nothing." She then closed her eyes and "kind of sucked her stomach in," which gave defendant "the impression she was allowing [him] to do something else." enter her pants. He thought she was making room for his hand to He did not think she was sucking in her stomach

because she was scared. Defendant testified he put his hand inside the victim's pants for about two or three seconds, but he did not insert his finger in her vagina. She stood still, with her arms "loose," Defendant thought what he was doing

and looked at him silently. was okay with her.

After about "two seconds," his "sixth sense"

told him he "was about to do something wrong, and [he] took [his] hand out" of her pants. He denied the victim ever told

him to stop, and denied he held her hands or used force. According to him, "[i]f she would have told me [to stop] from the beginning, if she made a motion to say don't put your hand anywhere, I wouldn't be here talking to you." After defendant removed his hand from the victim's pants, he tried to kiss her, but she "tightened up her lips." When

he asked why she did not want to kiss him, she replied, "Just because." Defendant told her, "You know you want to fuck me.

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Why don't you want to kiss me?" me, but just don't kiss me."

She told him, "You can touch

Defendant and the victim then saw her friend returning from the bathroom and began to walk toward her. the restroom together. to school. Defendant denied telling Kenneth that defendant inserted a finger into the victim's vagina. Rather, defendant had said The girls went into

When they emerged, defendant drove them

that he put his "hand in the cookie jar," which meant inside the victim's pants in the genital area. Defendant also denied that

during the pretext phone call he admitted putting his finger inside the victim's vagina. She simply accused him of putting

his fingers inside of her, which to defendant meant inside her pants, not her vagina. As for her reference to him hurting her,

he presumed she meant emotionally rather than physically. DISCUSSION I Defendant challenges the sufficiency of the evidence to support his conviction for forcible sexual penetration (Pen. Code,

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