Filed 5/28/13 P. v. Rivas CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR



THE PEOPLE,                                                           B239891

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA092842)
         v.

JUAN A. RIVAS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Tia
Fisher, Judge. Affirmed.
         Lori-Ann C. Jones, 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, Chung L. Mar
and Brendan Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.




                                  ________________________________
                                 INTRODUCTION
      Juan A. Rivas appeals from a judgment following convictions for two counts
of committing a lewd act upon a child. He contends there was insufficient
evidence to support the convictions. He further contends he was denied a fair trial
because of evidentiary rulings by the trial court that restricted his cross-
examination of prosecution witnesses and limited the testimony of his expert
witness. Finding no error, we affirm.
                          STATEMENT OF THE CASE
      Following a mistrial, a jury in the second trial found appellant guilty of two
counts of committing a lewd act upon a child under the age of 14 years, on or
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between February 7, 2006 and September 22, 2008 (Pen. Code, § 288). After
appellant was sentenced to a total of 10 years in state prison, he timely filed a
notice of appeal.
                         STATEMENT OF THE FACTS
I.    Prosecution’s Case-In-Chief
      A.     Testimony of Giselle M.
      The victim, Giselle M., testified that appellant, who is her uncle, molested
her on numerous occasions throughout the time she was in second, third, and
fourth grade in Covina. The molestation stopped when her mother married and
Giselle’s family moved to Fontana. Giselle testified she did not realize appellant
was sexually molesting her until she watched a sex education video at school. She
reported the molestation to her stepfather and mother, and shortly thereafter, to
David Johnson, the counselor at her Fontana school. Giselle testified appellant



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

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molested her in his bedroom, while giving her piggyback rides, in a swimming
pool, and when they went camping.
               1.   Bedroom Incidents
      Giselle testified that her mother would drop her off at appellant’s house
every morning, and appellant would take her to school. She would knock on
appellant’s bedroom door, open it, and ask him to take her to school. On numerous
occasions, appellant would motion her to come in and ask her to lie in bed with
him. Giselle would do so, and appellant would put his arm around her, pull her
closer, and press his body against hers. Although appellant was clothed, Giselle
could feel his hard penis on her buttocks. It made her uncomfortable. She testified
these incidents occurred “a lot of times” between second and fourth grade.
               2.   Piggyback Ride Incidents
      Giselle testified that on numerous occasions, appellant would touch her
vagina through her clothes while giving her piggyback rides to the mailbox.
During these piggyback rides, appellant had his arms behind his back and his
hands underneath her buttocks. Giselle felt uncomfortable and told him to stop.
Appellant responded by asking Giselle to “pinky promise” him that she would not
tell anyone.
               3.   Swimming Pool Incidents
      Giselle testified that on several occasions when she went swimming with
appellant in the pool at his house, appellant would squat down in the pool with his
legs apart and have her sit on his lap. Appellant would then move her “back and
forth.” Giselle could feel appellant’s hard penis on her buttocks. This would
happen only when Giselle and appellant were alone.




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             4.    Uncharged Camping Incident
      Giselle testified that she went on a camping trip with appellant and his
family, and his wife’s side of the family. When Giselle fell asleep, appellant
carried her to her tent. Inside the tent, appellant put his hand underneath her
clothes and touched “the skin of [her] vagina.” Giselle was scared. She pushed
appellant’s hand away and said out loud, “Tio.” Appellant shushed her and told
her, “Everything is okay.” Giselle testified that they were alone in the tent.
      The prosecutor played a recorded interview of Giselle, conducted by Susy
Flores of the Children’s Advocacy Center on December 2, 2010. Giselle’s
statements during the interview were consistent with her trial testimony. Giselle
also stated that almost every time appellant molested her, no one else was around.
      B.     Testimony of Giselle’s Parents
      Giselle’s stepfather and mother both testified. They recounted that in March
of 2010, Giselle informed them about appellant’s molestation. They did not
immediately go to the police because the allegations were serious, and they wanted
to make sure Giselle was telling the truth.
      C.     Testimony of David Johnson
      Johnson testified he is trained and mandated to report child abuse to Child
Protective Services. As a mandated reporter, Johnson gathers as many facts as he
can about the alleged abuse, but he does not investigate the incidents. Johnson
testified he first met Giselle when she was in the fifth grade. On April 16, 2010,
Giselle came to Johnson’s office with her best friend and told him that appellant
had sexually abused her. Giselle told Johnson about three incidents -- a camping
incident, a swimming pool incident, and a piggyback ride incident. Giselle stated
that appellant molested her between the second and fourth grade. She also told
Johnson that appellant made her “pinky swear” not to tell anyone.


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II.   Defense’s Case-in-Chief
      A.     Testimony of Appellant
      Appellant testified on his own behalf. He denied ever touching Giselle in a
sexual way. Appellant testified he never invited Giselle into his bedroom or bed,
although he admitted that sometimes Giselle would come into his bedroom while
he was lying in bed. Appellant admitted he gave Giselle piggyback rides between
2006 and 2008, but stated that he carried Giselle with his hands in front of his body
and held her legs. He denied touching Giselle’s vagina while giving her piggyback
rides. He also stated that every time he gave Giselle a piggyback ride, his
daughter, Jasmine, was present. Appellant testified he went camping with Giselle,
but denied touching her vagina during the trip. He admitted he carried Giselle and
placed her in the tent. Appellant also testified that he was never in the swimming
pool alone with Giselle, as Jasmine was always present. He denied ever pressing
Giselle against his penis in the pool, or doing any sort of thrusting or pushing
motion against her.
      On cross-examination, after being impeached with prior inconsistent
statements, appellant admitted there were times when he was alone with Giselle.
He also testified that in late 2008, Giselle became more distant and less
affectionate toward him.
      B.     Testimony of James Guy Kent
      James Guy Kent, a forensic kinesiologist, testified as an expert on human
movement and biomechanics. Dr. Kent opined that it was “highly unlikely” that
appellant molested Giselle while giving her a piggyback ride because appellant had
a restricted range of motion in his right arm and shoulder. Due to his restricted
range of motion, appellant would have been unable to hold Giselle under her
buttocks. After the trial court sustained an objection to a line of questioning by


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defense counsel, the judge asked Dr. Kent if the actions described by the victim
were within appellant’s physical capacity. Dr. Kent opined: “I don’t believe that
it’s in his physical capacity as I understand the events to have occurred.” On
cross-examination, Dr. Kent admitted he did not examine appellant around the
times when the crimes were committed for any range of motion or joint issues.
      C.     Testimony of Officer Brandon Avila
      Officer Avila was a police officer for the Covina Police Department when he
interviewed Giselle regarding the molestation. He prepared a report based on the
interview. Officer Avila testified that in the report, he “quote[d] certain things that
she said verbatim word-for-word,” but “paraphrase[d]” or “sometimes use[d] [his]
own words to describe” what she was telling him. Officer Avila testified that
Giselle did not use the words “thrusting,” “erect,” vagina,” or “massage.”
      D.     Testimony of Yolanda Nieto
      Yolanda Nieto, appellant’s sister-in-law, testified she went on the camping
trip with appellant and Giselle. She testified that the adults were in a seating area,
and that Giselle was sitting on appellant’s lap, falling asleep. The other children
were in a tent. Nieto saw appellant carry Giselle to the front of the tent and put her
down. Appellant made other children get out of the tent and began fixing blankets
for them. After appellant fixed the blankets, the children went into the tent with
Giselle. Appellant then returned to the seating area. On cross-examination, Nieto
admitted she did not watch appellant afterwards.
      E.     Testimony of Jasmine Rivas
      Jasmine Rivas, appellant’s daughter, testified that she was present every
morning when Giselle was dropped off at appellant’s house. She admitted,
however, that there were times when she was in her room and could not see Giselle
getting ready for school. Jasmine also testified she was present in the swimming


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pool with Giselle every time appellant was swimming with them. She recalled
seeing appellant give Giselle piggyback rides a few times. During those times, she
saw that appellant had his hands on Giselle’s legs. Jasmine also remembered
going on a camping trip with Giselle, appellant and other relatives, but she could
not recall anything specific about the trip.
                                    DISCUSSION
      Appellant contends his convictions should be reversed because (1) there was
insufficient evidence to support the jury’s finding that he had the specific intent to
arouse, appeal to, or gratify the lust, passions, or sexual desires of himself or the
child in any of the charged incidents, and (2) he was denied a fair trial because the
trial court’s evidentiary rulings improperly restricted his cross-examination and
limited his defense case.
A.    Sufficiency of the Evidence
      “In determining whether the evidence is sufficient to support a
conviction . . . , ‘the relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.’ [Citations.] Under
this standard, ‘an appellate court in a criminal case . . . does not ask itself whether
it believes that the evidence at the trial established guilt beyond a reasonable
doubt.’ [Citation.] Rather, the reviewing court ‘must review the whole record in
the light most favorable to the judgment below to determine whether it discloses
substantial evidence -- that is, evidence which is reasonable, credible, and of solid
value -- such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ [Citation.]” (People v. Vy (2004) 122 Cal.App.4th 1209, 1224,
italics omitted.) “In deciding the sufficiency of the evidence, a reviewing court
resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution


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of conflicts and inconsistencies in the testimony is the exclusive province of the
trier of fact. [Citation.] Moreover, unless the testimony is physically impossible
or inherently improbable, testimony of a single witness is sufficient to support a
conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) Finally,
in determining whether a defendant had the specific intent to commit a lewd act on
a child in violation of section 288, “‘[t]he trier of fact looks to all the
circumstances, including the charged act, to determine whether it was performed
with the required specific intent.’ [Citations.] Other relevant factors can include
the defendant’s extrajudicial statements [citation], other acts of lewd conduct
admitted or charged in the case [citations], the relationship of the parties [citation],
and any coercion, bribery, or deceit used to obtain the victim’s cooperation or to
avoid detection [citation].” (People v. Martinez (1995) 11 Cal.4th 434, 445.)
       The evidence below was sufficient to support the convictions. Giselle
testified that appellant touched her vagina on more than two occasions. She also
testified that he rubbed or pushed his hard penis against her buttocks on numerous
occasions. The nature and manner of appellant’s conduct showed that he acted
with an improper sexual intent. Appellant touched the victim’s sexual organs
repeatedly and on several occasions, while aroused. He committed the acts when
he was alone with the victim -- who was his niece -- and urged her to keep the acts
secret. In light of this testimony, the jury could reasonably conclude that the acts
were committed with the requisite intent to arouse sexual desire.
B.     Evidentiary Rulings
       Appellant contends he was denied a fair trial by the trial court’s evidentiary
rulings. The challenged rulings fall into three broad categories: (1) rulings that
restricted the cross-examinations of prosecution witnesses, Giselle, her mother, and




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her school counselor, Johnson, (2) rulings that restricted the testimony of defense
expert witness Dr. Kent, and (3) a miscellaneous ruling in favor of the prosecution.
      1.     Restrictions on Cross-Examination
      Appellant contends the trial court abused its discretion in precluding him
from asking Giselle and her mother whether the family had filed a civil lawsuit
against appellant, and from impeaching her with Officer Avila’s report. He also
contends the trial court erred by precluding him from asking Johnson whether
Giselle had been “referred to your office” for behavioral problems and from using
the word “investigate” to describe Johnson’s conduct following an allegation of
child abuse. Appellant contends these restrictions denied him his due process and
confrontation rights.
      “The Confrontation Clause of the Sixth Amendment guarantees the right of
an accused in a criminal prosecution ‘to be confronted with the witnesses against
him.’ . . . It does not follow, of course, that the Confrontation Clause of the Sixth
Amendment prevents a trial judge from imposing any limits on defense counsel’s
inquiry into the potential bias of a prosecution witness. On the contrary, trial
judges retain wide latitude insofar as the Confrontation Clause is concerned to
impose reasonable limits on such cross-examination based on concerns about,
among other things, harassment, prejudice, confusion of the issues, the witness’
safety, or interrogation that is repetitive or only marginally relevant. And as we
observed earlier . . . , ‘the Confrontation Clause guarantees an opportunity for
effective cross-examination, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish.’ [Citation.]” (Delaware v.
Van Arsdall (1986) 475 U.S. 673, 678-679; accord, People v. Harris (1989)
47 Cal.3d 1047, 1091.)




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      Here, the trial court acted within its discretion in limiting the cross-
examinations of Giselle and her mother. The court precluded any questioning
about a civil complaint against appellant because defense counsel lacked a good
faith belief any such complaint had been filed. The court also properly cut short
defense counsel’s attempt to suggest that Giselle had used the words “thrusting”
and “erect” to describe the molestation to Officer Avila, when counsel knew the
officer had paraphrased Giselle’s testimony by using those words in his report.
      With respect to Johnson, the court properly found no factual basis to ask
Johnson whether Giselle had been referred to him for behavioral issues. Johnson
had previously testified in an Evidence Code section 402 hearing that he was
unaware of any behavioral incidents involving Giselle. Similarly, the court acted
within its discretion in precluding defense counsel from characterizing Johnson’s
attempts to gather facts about a child abuse allegation as “investigat[ing].”
Johnson testified he did not investigate alleged child abuse, but merely attempted
to gather sufficient facts about an allegation to report it to Child Protective
Services. The trial court properly refused to allow defense counsel to
mischaracterize this conduct by describing it as “investigat[ing].” In short, the trial
court acted within its discretion in limiting the cross-examinations of Giselle, her
mother, and Johnson. Accordingly, appellant was not denied his due process or
confrontation rights.
      2.     Limits on Testimony of Defense Witness
      Appellant contends he was denied a fair trial because the court
impermissibly limited the testimony of his expert witness, Dr. Kent, (1) by
excluding a photograph of a police hold or stronghold, (2) by precluding Dr. Kent
from describing a demonstrative exhibit (a three-dimensional reconstruction of the




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piggyback ride), and (3) by limiting Dr. Kent’s testimony on the ultimate issue in
the case. We discern no reversible error.
      We find no error in the court’s exclusion of a photograph depicting what
defense counsel characterized as a “stronghold . . . used to limit the movement of
the person held, in particular their hand movements.” The court, viewing the
photo, characterized it as a police restraint hold and excluded it as irrelevant.
Neither below nor on appeal does appellant demonstrate how the exclusion of this
photograph precluded him from effectively presenting the testimony of his expert
or defending against the charges.
      Dr. Kent testified to the preparation of the demonstrative exhibit, and stated
it depicted “a three-dimensional reconstruction . . . under the conditions that have
been described by the victim.” Defense counsel then asked, “And can you give us
more of a description of what we’re looking at?” Dr. Kent replied, “Well, that’s
what I was describing.” The trial court precluded further questioning, stating
“[e]verybody can see it.” On this record, Dr. Kent was able to sufficiently describe
the demonstrative exhibit. Moreover, appellant has failed to show that any
limitations imposed on Dr. Kent’s descriptions of the exhibit was prejudicial.
      Dr. Kent went on to opine that “it’s more probable than not that . . . for a
variety of foundational reasons that during these piggyback rides that the
allegations of a molestation are highly unlikely.” When asked whether the actions
described by the victim were within the physical capacity of appellant, Dr. Kent
stated, “I don’t believe that it’s in his physical capacity as I understand the events
to have occurred.” Thus, Dr. Kent was permitted to give his expert opinion that
appellant could not have committed the acts as described. On this record, even
were we to find some limitations on Dr. Kent’s testimony erroneous, we would
deem any error harmless beyond a reasonable doubt.


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      3.     Miscellaneous Ruling in Favor of Prosecution
      Appellant contends the trial court impermissibly allowed the prosecution to
cross-examine Jasmine about the swimming pool and camping incidents, when
Jasmine testified on direct examination only about the alleged bedroom incidents.
As defense counsel acknowledged, however, Jasmine was called to establish that
Giselle “was not alone with [appellant] during any period of time.” This placed in
issue whether Jasmine was present on all the occasions at which appellant
allegedly molested Giselle. The court was within its discretion in permitting
Jasmine to be questioned on the scope of her presence at those events at which
appellant allegedly molested Giselle. In any event, appellant has failed to identify
how he was prejudiced by the ruling.
      In short, appellant was not denied a fair trial by the trial court’s evidentiary
       2
rulings.




2
       Appellant suggests it was improper for the trial court to read the transcript of
the prior trial. We disagree. Here, both the prosecutor and defense counsel agreed
that the trial judge could read the transcript of the prior trial. Moreover, provided
that the trial judge’s rulings are made upon facts and evidence presented in the
second trial, nothing precludes the judge from preparing for a second trial by
reviewing the transcripts of the first trial.



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                                 DISPOSITION
     The judgment is affirmed.


     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                               MANELLA, J.


We concur:




WILLHITE, Acting P. J.




SUZUKAWA, J.




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