Filed 6/24/14 P. v. Cardenas CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B250650

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA119712)
         v.

JOSE CARDENAS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Robert J. Higa, Judge. Affirmed.

         Vanessa Place, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Kimberley J.
Baker-Guillemet, Deputy Attorneys General, for Plaintiff and Respondent.


                                              __________________
          In an information filed by the Los Angeles County District Attorney, defendant
and appellant Jose Cardenas was charged with 11 offenses: five felony counts of
aggravated sexual assault of a child under the age of 14 – oral copulation (counts one
through five; Pen. Code, § 269, subd. (a)(4))1 and six felony counts of committing a lewd
and lascivious act upon a child under the age of 14 (counts six through 11; § 288, subd.
(a).) Counts six through 11 were alleged to be serious felonies within the meaning of
section 1192.7, subdivision (c).
          Appellant pleaded not guilty to all counts and denied the special allegations. Trial
was by jury. Appellant was found guilty as charged.
          The trial court denied probation and sentenced appellant to 77 years to life in
prison.
          Appellant timely filed a notice of appeal. On appeal, he argues that the admission
of the complaining witness’s preliminary hearing testimony violated his Sixth
Amendment right to confrontation.
          We affirm.
                                 FACTUAL BACKGROUND
I. Prosecution Evidence
          A. Complaining Witness’s Testimony2
          Appellant is J.C.’s father. In 2010, when J.C. was just 11 years old, appellant
began molesting her.
          J.C. remembered talking to Detective John Carlin when he went to her school.
She recalled telling him about her father touching her, but she did not remember how
many times and on how many occasions her father had touched her.


1         All further statutory references are to the Penal Code unless otherwise indicated.

2       The victim’s account is taken from the preliminary hearing transcript, which was
admitted at trial as People’s Exhibit No. 1b, due to her unavailability at trial. Because the
sole issue on appeal is whether appellant’s Sixth Amendment right was violated, we do
not set forth a lengthy recitation of the facts.


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       When appellant touched J.C. inappropriately, he was drunk. One day, when
appellant was sober, J.C. confronted him and “told him what he had done to [her].”
Appellant apologized to J.C. and promised never to do it again. Since the apology, he has
not touched J.C.
       At some point later, J.C. told two friends that her father had molested her.
       B. Police Interviews of J.C.
       Detective Carlin is a Child Abuse detective with the Los Angeles County Sheriff’s
Department’s Special Victims Bureau. During an interview with J.C. at her school on
May 9, 2011, J.C. told Detective Carlin that appellant had molested her “about six or
seven times total,” making skin-to-skin contact. She described two incidents. J.C.’s
demeanor was very timid and shy, and “she appeared like she wanted to hold back
crying.”
       On May 11, 2011, Detective Carlin, the preliminary hearing prosecutor, and
Sylvia Nunez, a victim advocate, met with J.C. at the courthouse. On that occasion, J.C.
described a time when she drove to work with her father. At least four times during that
drive, appellant threatened to kill himself if J.C. did not submit to his molestation. Each
time, J.C. complied.
       According to J.C., the molestation began in January or February 2010 and ended
in June or July 2010. During the interview, J.C. “appeared very scared and also shy and
reluctant to tell . . . what happened.”
       C. Police Interview of Appellant
       On May 9, 2011, Detective Carlin interviewed appellant while he was in custody
on the instant charges. He told Detective Carlin that he used to drink a lot. He also
admitted that he molested J.C. on two occasions.
       Appellant told Detective Carlin that when he was drunk, he would “touch her”
inappropriately. He admitted that he touched her inappropriately on at least 10 separate
occasions, making skin-to-skin contact.
       Appellant said that he felt badly about what happened; he knew what he did was
wrong. Appellant apologized to J.C. for what happened.

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          Finally, appellant told Detective Carlin that J.C. was not lying about what she had
reported.
II. Defense Evidence
          The defense did not present any evidence.
                                        DISCUSSION
          Appellant argues that his convictions should be reversed because the admission of
J.C.’s preliminary hearing testimony violated his Sixth Amendment right to
confrontation. Specifically, he contends that, notwithstanding our Supreme Court’s
decision in People v. Seijas (2005) 36 Cal.4th 291 (Seijas), appellant’s rights were
improperly abrogated by the admission of the victim’s preliminary hearing testimony at
his trial because “the motive and opportunity [were] different in kind.”
          A. Relevant Proceedings
          J.C. testified at the preliminary hearing and was subject to cross-examination.
Prior to trial, defense counsel stated, “As the court is aware, [J.C.], the alleged victim in
this case, is not present.” Defense counsel then stated that he was aware that the
prosecution planned to read the transcript of J.C.’s preliminary hearing testimony into the
record at trial. He also stated that her preliminary testimony had been impeached by
Detective Carlin’s preliminary hearing testimony. Further, defense counsel stated that
the prosecution intended to call Detective Carlin to testify at trial to impeach J.C.’s
preliminary hearing testimony. Defense counsel argued that, pursuant to Evidence Code
section 402, permitting Detective Carlin to be called to impeach J.C.’s preliminary
hearing testimony without her being present violated his federal and state confrontation
rights.
          Defense counsel continued: “We do not have and won’t have the opportunity to
rehabilitate her, or to question her on those issues that Detective Carlin will be using to
impeach her on. And even though she testified at the preliminary hearing, and even
though she was represented by—my client was represented by private counsel, and he did
cross-examine her and cross[-]examine the detective at the time on the impeachment



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issues, as the court knows, the preliminary hearing is pretty much limited in terms of
what we can actually put on.
       “Obviously, putting her back on for rehabilitation might exceed the scope of an
affirmative defense for the purposes of preliminary hearing and, therefore, I don’t believe
my client had the full opportunity to cross-examine and examine the witness with respect
to the impeaching areas.”
       Defense counsel also objected to Detective Carlin reading the transcript of his
preliminary hearing testimony at trial.
       The prosecutor argued that she would be introducing the entire preliminary
hearing testimony of J.C. because she was an unavailable witness. She also would
present the preliminary hearing transcript of Detective Carlin’s impeaching testimony
because Evidence Code section 1294 “allows for the submissions of the transcript where
the inconsistent statements are, so [she would] have [Detective] Carlin read his
preliminary hearing transcript testimony.” At the preliminary hearing, J.C. disclosed
“much of the molestation” during her testimony, but then began to “recant some—or
[state] ‘I don’t remember.’” The prosecutor at the preliminary hearing then “properly
impeached” J.C. by asking her about statements she made to Detective Carlin, to which
she again responded that she did not remember. The prosecutor then called Detective
Carlin to the stand at the preliminary hearing to ask specific questions about what J.C.
had told him.
       The trial court ruled: “If it’s an objection, it’s overruled. If it’s a motion. It’s
denied.”
       B. Forfeiture
       The People argue that this issue has been forfeited on appeal because appellant did
not object to the introduction of J.C.’s preliminary hearing testimony. We agree.
       “It is ‘the general rule that questions relating to the admissibility of evidence will
not be reviewed on appeal in the absence of a specific and timely objection in the trial
court on the ground sought to be urged on appeal.’ [Citations.]” (People v. Raley (1992)



                                               5
2 Cal.4th 870, 892; see also Evid. Code, § 353; People v. Rodrigues (1994) 8 Cal.4th
1060, 1118.)
       Here, the appellate record confirms that appellant did not object to the introduction
of J.C.’s preliminary hearing testimony. Rather, he objected to the introduction of
Detective Carlin’s preliminary hearing testimony and to having Detective Carlin testify at
trial for the purposes of impeachment. Because appellant failed to timely object below,
he cannot raise this claim on appeal. (Seijas, supra, 36 Cal.4th at p. 303.)
       Appellant does not dispute that he did not properly object; instead, in his reply
brief, he only argues that “any objection would have been futile under the rule established
by the [Supreme] Court in Seijas.” We disagree. Given the nature of the argument raised
on appeal, which presumably could have been the same argument raised below, an
objection would have afforded the trial court the opportunity to hear the arguments of
counsel on the issue and to exercise its discretion as to the admissibility of the evidence.
Additionally, appellant does not refer us to any place in the record to demonstrate how an
objection would have been futile. In the absence of an objection, we conclude that
appellant may not, for the first time on appeal, raise this argument.
       C. No Sixth Amendment Violation
       Regardless, no Sixth Amendment violation occurred. Both the federal and
California Constitutions protect a criminal defendant’s right to confront the witnesses
against him. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) That right includes the
right to rehabilitate a witness. (See, e.g., People v. Carter (1957) 48 Cal.2d 737, 752–
753 [same due process interest in rehabilitation evidence as in impeachment evidence].)
A defendant’s right to confront his accuser, however, is not absolute. (Seijas, supra, 36
Cal.4th at p. 303.)
       A witness’s prior testimony may be used against a criminal defendant at trial only
when the witness is unavailable and the defendant “was a party to the action or
proceeding in which the testimony was given and had the right and opportunity to cross-
examine the declarant with an interest and motive similar to that which he has at” trial.
(Evid. Code, § 1291, subd. (a)(2); see also Seijas, supra, 36 Cal.4th at p. 303 [admission

                                              6
of prior testimony by an unavailable witness does not violate the Sixth Amendment if the
defendant had both an opportunity to cross-examine the witness at the prior hearing and
“‘“an interest and motive similar to that which he has at the [subsequent] hearing”’”].)
When the requirements of Evidence Code section 1291 are met, admitting the witness’s
prior testimony does not violate the constitutional right of confrontation. (People v.
Herrera (2010) 49 Cal.4th 613, 621.)
       In Seijas, the Supreme Court held that the preliminary hearing testimony of an
unavailable witness was admissible at trial so long as the defendant had a prior
opportunity to cross-examine the witness. (Seijas, supra, 36 Cal.4th at p. 303; see also
People v. Herrera, supra, 49 Cal.4th at p. 621.) In fact, the California Supreme Court
has repeatedly rejected contentions that a defendant’s opportunity to cross-examine an
unavailable witness at the preliminary hearing was inadequate to permit admission of the
former testimony at trial. (People v. Herrera, supra, at pp. 621–622.)
       Here, both requirements—unavailability and a prior opportunity to cross-
examine—were met. At some point prior to trial, the parties became aware that J.C. was
unavailable to testify at trial. Defense counsel lodged no objection to the fact that J.C.
was legally unavailable. Further, appellant appears to concede that the first requirement
has been satisfied as he does not argue otherwise in his opening brief.
       Appellant also had an opportunity to cross-examine J.C. at the preliminary
hearing. Appellant so conceded prior to trial, when he reiterated that appellant “was
represented by private counsel, and he did cross-examine” her. And, to the extent that
she may have been impeached by Detective Carlin, J.C. was excused from the
preliminary hearing “subject to recall”; appellant could have recalled her at the
preliminary hearing after Detective Carlin testified to rehabilitate her—he chose not to do
so. (People v. Smith (2003) 30 Cal.4th 581, 611–612 [“‘As long as defendant was given
the opportunity for effective cross-examination, the statutory requirements [of Evidence
Code section 1291] were satisfied; the admissibility of this evidence did not depend on
whether defendant availed himself fully of that opportunity’”].)



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       Urging reversal, appellant argues that preliminary hearings do not afford
defendants the opportunity to have constitutionally adequate confrontation because
“varying (and conflicting) degrees of guilt are advanced by the prosecution at the
preliminary hearing.” In a similar vein, appellant asserts that his convictions must be
reversed because he did not have the opportunity to rehabilitate the impeached witness
during the preliminary hearing, but “at trial, there would be the absolute right to do so,
and interest in so doing.” California courts have held otherwise. (See, e.g., People v.
Valencia (2008) 43 Cal.4th 268, 293–294 [“a defendant’s interest and motive at a second
proceeding is not dissimilar to his interest at a first proceeding within the meaning of
Evidence Code section 1291, subdivision (a)(2), simply because events occurring after
the first proceeding might have led counsel to alter the nature and scope of cross-
examination of the witness in certain particulars”].)
       It follows that we reject appellant’s reliance upon court opinions from other states.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                    _____________________________, J.
                                          ASHMANN-GERST

We concur:



______________________________, P. J.
           BOREN



______________________________, J.
           CHAVEZ


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