Opinion
F083953
06-15-2023
THE PEOPLE, Plaintiff and Respondent, v. JESSE CRUZ, Defendant and Appellant.
Gillian Black, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF184165A. Brian M. McNamara, Judge.
Gillian Black, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FRANSON, J.
Appellant Jesse Cruz was charged by amended information with 10 felony counts and one misdemeanor count consisting of three counts of lewd and lascivious conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a); counts 1, 8 &9); three counts of sexual intercourse or sodomy with a child 10 years of age or under (§ 288.7, subd. (a); counts 2, 3 &4); three counts of oral copulation or sexual penetration with a child 10 years of age or under (§ 288.7, subd. (b); counts 5, 6 &7); one count of oral copulation with a child under the age of 14 (§ 287, subd. (c)(1); count 10); and one misdemeanor count of possession of matter depicting a minor engaging or simulating sexual conduct (§ 311.11, subd. (a); count 11).
All further statutory references are to the Penal Code unless otherwise stated.
Appellant was convicted by jury as charged and the trial court sentenced him 25 years to life on the three section 288.7, subdivision (a) violations, plus consecutive 15 years to life on the three section 288.7, subdivision (b) violations. The trial court further imposed a determinate midterm of six years for one section 288, subdivision (a) violation, two years for each of the two other section 288, subdivision (a) violations, plus two years for the section 287, subdivision (c)(1) violation, all to run consecutively. A one-year term for the misdemeanor violation of section 311.11 was imposed and stayed pursuant to section 654.
As noted by appellant, for reasons that are not entirely clear from the record, at sentencing the trial court used the count numbers as they appeared in the original information of May 6, 2021, instead of the amended information of December 15, 2021. For purposes of clarity, we use the count numbers as they correspond to the verdict forms and not the sentencing hearing.
On appeal, appellant contends the trial court erred when it instructed on counts 6 and 7 (§ 288.7, subd. (b)), requiring reversal. Specifically, appellant contends the trial court erred: (1) when it instructed that the crimes were general intent rather than specific intent crimes; (2) when it failed to instruct on the lesser included offense of attempt as to count 6; and (3) when it gave an extemporaneous instruction during closing arguments which had the effect of removing an element of the offense and was prejudicial as to count 6. Appellant further contends that the trial court did not understand and/or abused its discretion when it imposed consecutive sentences for 10 felony counts. We find no error and affirm.
STATEMENT OF THE FACTS
Appellant and K.W. were in a dating relationship for about seven or eight years and moved in together in 2018. Around that time, K.W.'s daughter, E., who had previously been living with her grandmother, moved back in with her mother and appellant. E. lived in the same house with appellant from the age of nine to the age of 11 years.
E. is referred to at trial as Jane Doe.
E. initially had a good relationship with appellant, whom she saw as a "stepfather" and trusted. However, appellant soon began to "touch" E. when her mother was away at work. When E. objected, appellant would "get mad." When E. complied with appellant's demands, he would tell her she was a "good girl" and buy her toys or give her money. Appellant told E. that his actions were normal father-daughter interactions, and that her mother would not believe E. if she told her.
At trial, E. testified appellant did the following: (1) touched her "private area" with his hand and "private part"; (2) put his finger "inside" her; (3) put his "private part" inside her private part; (4) put a "toy" in her private part; and (5) put his mouth on her private part and told her to put her mouth on his private part.
E. could not remember how many times these incidents occurred, but thought it was more than 20. E. estimated each of the incidents lasted a few minutes and appellant stopped "[w]hen the white stuff came out" in her mouth or "inside" her. According to E., appellant recorded the incidents on his cell phone.
Early in 2021, K.W. discovered a cell phone tucked between the mattress of her bed that did not belong to her; E. did not have a phone. According to K.W., appellant, who had "many phones," was very protective of his cell phones and did not let anyone near them. K.W. removed the SIM card from the cell phone and put it into her iPad to view the contents. She saw photos and videos of E.'s naked body and called the police. Officers responded to K.W.'s home, where they viewed some of the photos and videos. Appellant was arrested on February 3, 2021.
The content of the cell phone was processed by a digital forensic examiner and a synopsis provided by a detective. The evidence was presented to the jury as People's exhibit 3, consisting of 11 video or photographic "files." Each file corresponded to a separate count, except for counts 5 and 6, which were contained in a single file.
The files showed the following: a March 11, 2019, photo showing E.'s vagina "with the defendant's penis pressed up against it" (count 1); an August 27, 2018, video of appellant "having sexual intercourse with [E.]" (count 2); a May 26, 2019, video showing content similar to that in count 2 (count 3); an August 2, 2019, video showing appellant "having sexual intercourse with [E.]," while he is watching a pornographic video on the cell phone (count 4); a September 5, 2018, video showing appellant first orally copulating E. and concluding with appellant digitally penetrating E. (counts 5 and 6); a March 11, 2019, photograph showing a "blue dildo" in E.'s vagina (count 7); a December 27, 2019, video showing appellant "masturbating over [E.] while she is asleep and he ejaculates onto her face" (count 8); an October 23, 2020, video showing an act of sexual intercourse (count 9); an October 13, 2020, video showing appellant masturbating standing over E., while she is asleep and he is "playing a video on his phone of [E.] orally copulating him" (count 10); and a video of E. doing sexual things "in the shower," while being recorded by appellant (count 11).
Following his arrest, appellant contacted K.W. and encouraged her not to come to court, and not to bring E. to court, so he could be released from jail. In calls from jail, appellant apologized to K.W. for what he had done and asked that she be there for him when he was released. He asked that she drop the charges.
Appellant's defense in closing was that the investigating detectives did not do anything to personally verify the accuracy of the creation dates encoded on the phone and videos, casting doubt on E.'s age at the time of the incidents. Defense counsel also questioned whether "penetration" occurred as to several counts.
DISCUSSION
I. DID THE TRIAL COURT ERR BY INSTRUCTING THAT COUNTS 6 AND 7 WERE GENERAL INTENT RATHER THAN SPECIFIC INTENT CRIMES?
Appellant contends the trial court erred by failing to instruct the jury that sexual penetration of a child 10 years of age or younger, in violation of section 288.7, subdivision (b), as charged in counts 6 and 7, required a finding of specific intent. We agree, but conclude the error was harmless beyond a reasonable doubt.
Appellant was charged in counts 5, 6, and 7 with a violation of section 288.7, subdivision (b), based on evidence recovered from appellant's cell phone. Section 288.7, subdivision (b) provides: "Any person 18 years of age or older who engages in oral copulation or sexual penetration, as defined in Section 289, with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life." (§ 288.7, subd. (b).)
Counts 5 and 6 were based on video file No. 5-6 of People's exhibit 3, which the prosecutor argued showed two different sexual acts: an act of oral copulation (count 5) and an act of digital penetration (count 6). Count 7 was based on a photograph in file No. 7 of People's exhibit 3, and purported to show an act of penetration with a foreign object.
The trial court instructed the jury with CALCRIM No. 252, on the union of act and intent for cases that include both general and specific intent crimes. The trial court instructed that counts 2, 3, 4, 5, 6, 7, and 10 required general criminal intent:
"For you to find a person guilty of these crimes, that person must not only commit the prohibited act but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act, however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime."
And it instructed that counts 1, 8, 9, and 11 required a specific intent or mental state:
"For you to find a person guilty of these crimes, that person must not only intentionally commit the prohibited act, but must do so with a specific intent and/or mental state. The act and specific intent and/or mental state are explained in the instruction for that crime."
Appellant contends it was error for the trial court to include counts 6 and 7 in the list of general intent crimes because of the requirement that the penetration must be committed for the purpose of sexual abuse, arousal or gratification. We agree.
As this court addressed in People v. Saavedra (2018) 24 Cal.App.5th 605, 613, when based on oral copulation of a child, as alleged here in count 5, a violation of section 288.7, subdivision (b) is a general intent crime. (See, e.g., People v. Thornton (1974) 11 Cal.3d 738, 765, disapproved on another ground in People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12.) However, when, as in counts 6 and 7, the violation of the statute is based on sexual penetration, it is a specific intent crime. (People v. ZarateCastillo (2016) 244 Cal.App.4th 1161, 1167; People v. Ngo (2014) 225 Cal.App.4th 126, 157 (Ngo).) This is so because section 288.7, subdivision (b) proscribes sexual penetration, "as defined in Section 289," with a child. Section 289 proscribes forcible acts of penetration, and subdivision (k)(1) of section 289, in turn, defines sexual penetration as anal or genital penetration, by any foreign object, "for the purpose of sexual arousal, gratification, or abuse ...." In light of subdivision (k), a violation of section 289 is a specific intent crime. (People v. McCoy (2013) 215 Cal.App.4th 1510, 1539-1540.) It necessarily follows that "the same is true of sexual penetration of a child 10 years old or younger, since the definition of 'sexual penetration' is the same for both crimes." (People v. ZarateCastillo, supra, at p. 1168.)
People v. Dillon (2009) 174 Cal.App.4th 1367, 1380, on which respondent relies, held to the contrary.
"The trial court must instruct even without request on the general principles of law relevant to and governing the case. [Citation.] That obligation includes instructions on all of the elements of a charged offense." (People v. Cummings (1993) 4 Cal.4th 1233, 1311, abrogated on another ground in People v. Merritt (2017) 2 Cal.5th 819, 831.) And a trial court is obligated to give a correct instruction on the concurrence of act and specific intent whenever the offense charged is a specific intent crime. (People v. Alvarez (1996) 14 Cal.4th 155, 220.)
The correctness of jury instructions is determined from the entire charge of the court. (People v. Bolin (1998) 18 Cal.4th 297, 328; People v. Forrest (2017) 7 Cal.App.5th 1074, 1087.) Pursuant to CALCRIM No. 1128, the trial court instructed:
"The defendant is charged in Counts Six and Seven with engaging in sexual penetration with a child 10 years of age or younger, in violation of Penal Code Section 288.7(B). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] One. The defendant engaged in acts of sexual penetration with Jane Doe, date of birth [ ]. [¶] Two. When the defendant did so, Jane Doe, date of birth [ ], was 10 years of age or younger. [¶] Three. At the time of the act, the defendant was at least 18 years of age. [¶] Sexual penetration means penetration, however slight, of the genital or anal opening of the other person or causing the other person to penetrate, however slightly, his or her own genital or anal opening by any foreign object, substance, instrument, device, or any unknown object for the purpose of sexual abuse, arousal, or gratification. [¶] Penetration for sexual abuse means penetration for the purpose of causing pain, injury, or discomfort."
This instruction correctly defined sexual penetration and informed jurors of the requisite purpose. We cannot say the instructions given here were correct, however, because CALCRIM No. 252 was erroneous on its face with respect to counts 6 and 7 and conflicted with the mental state element of CALCRIM No. 1128. (See People v. Maurer (1995) 32 Cal.App.4th 1121, 1125.)
Courts have differed concerning the proper standard for assessing prejudice with respect to this type of instructional error. (See People v. Hardy (2018) 5 Cal.5th 56, 97 [applying reasonable probability standard and concluding error in instructing on union of act and intent harmless where jury otherwise adequately instructed and prosecutor argued crime required specific intent]; People v. Alvarez, supra, 14 Cal.4th at p. 221 [finding error in instructing jury on union of act and intent harmless where another instruction "substantially covered the concurrence of act and 'specific intent'"] People v. Lua (2017) 10 Cal.App.5th 1004, 1014 ["[T]he parties' closing arguments ... diminished any possibility of confusion."].) We are convinced here that the error was harmless even under the more stringent standard articulated in Chapman v. California (1967) 386 U.S. 18, 24.
Under Chapman, we "must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error." (People v. Merritt, supra, 2 Cal.5th at p. 831, citing Neder v. United States (1999) 527 U.S. 1, 18 Cal.4th 643, 663.) "[I]n order to conclude that an instructional error' "did not contribute to the verdict"' within the meaning of Chapman [citation] we must' "find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record." '" (People v. Brooks (2017) 3 Cal.5th 1, 70.)
As we previously observed, CALCRIM No. 1128 correctly set out the elements- including the intent "for the purpose of sexual abuse, arousal, or gratification" - required for the jury to convict defendant of sexual penetration of a child 10 years of age or younger, as charged in counts 6 and 7. The language of the instruction covered both the requisite intent and the requirement of a concurrence of act and specific intent. The jury viewed the video and heard the testimony of E. The record on appeal contains no evidence that could rationally lead to a finding the act of penetration charged in counts 6 and 7 was committed for a purpose other than sexual arousal, gratification, or abuse. Moreover, appellant did not contest the element of intent, but instead primarily questioned the evidence of E.'s age and whether she was truly under the age of 10 at the time and secondarily whether penetration actually occurred. Since no rational jury could have found the specific intent element unproven, the error was harmless beyond a reasonable doubt. (Neder v. United States, supra, 527 U.S. at p. 19; People v. Singh (2004) 119 Cal.App.4th 905, 913.)
II. DID THE TRIAL COURT ERR WHEN IT FAILED TO SUA SPONTE GIVE AN INSTRUCTION ON A LESSER INCLUDED OFFENSE OF ATTEMPT FOR COUNT 6?
Appellant also contends the trial court erred by failing to instruct the jury on attempted sexual penetration as a lesser included offense to count 6. Respondent contends attempted sexual penetration of a child is not a lesser included offense of sexual penetration; that the trial court had no sua sponte duty to instruct the jury on attempt because it was not supported by substantial evidence; and even if the court had a duty to instruct on attempt, the error was harmless because there was no reasonable likelihood the jury would have acquitted defendant on count 6 as charged. For the reasons below, we find no reversible error.
"We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.] A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence,' "that is, evidence that a reasonable jury could find persuasive"' [citation], which, if accepted,' "would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser' ...." (People v. Cole (2004) 33 Cal.4th 1158, 1218.)
"The jury ... may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense." (§ 1159.) "Thus, where there is evidence that would absolve the defendant from guilt of the charged offense but would support a finding of guilt of attempt to commit the charged offense, an instruction on attempt is mandatory." (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1454.) This means that, if the evidence was susceptible of the reasonable interpretation that appellant was guilty of attempted sexual penetration but not the completed crime, the trial court had a duty to instruct the jury on attempt.
" 'It is not disputed, nor could it well be disputed, that, as an abstract proposition, every completed crime necessarily involves an attempt to commit it.'" (People v. Vanderbilt (1926) 199 Cal. 461, 463; see In re Sylvester C. (2006) 137 Cal.App.4th 601, 609 ["attempt is a lesser included offense of any completed crime"]; People v. Meyer (1985) 169 Cal.App.3d 496, 506 ["every substantive criminal offense necessarily includes the attempt to commit it"].)
Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. (People v. Birks (1998) 19 Cal.4th 108, 117-118.) Thus, where an attempt to commit an offense may be distinguished from the substantive offense solely by the failure to complete the actus reus, the elements of the attempted offense are all included in the greater offense.
However," '[t]he law of "attempt" is complex and fraught with intricacies and doctrinal divergences.'" (People v. Bailey (2012) 54 Cal.4th 740, 753 [quoting Moorman v. Thalacker (8th Cir. 1996) 83 F.3d 970, 974.) One such divergence arose in 1986 when the Legislature enacted section 21a, providing, "An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." As a consequence, when the completed offense is a general intent crime, an attempt to commit that offense does not meet the definition of a lesser included offense under the elements test because the attempted offense includes a specific intent element not included in the complete offense. (People v. Strunk (1995) 31 Cal.App.4th 265, 271 ["an attempt is a specific intent crime and does not fit within the definition of a necessarily included offense of a general intent crime"]; People v. Bailey, supra, at p. 749.)
Here, as discussed in part I., above, sexual penetration with a child is a specific intent crime under section 288.7, subdivision (b). Again, that statute incorporates the definition of "sexual penetration" set forth in section 289." 'Sexual penetration' is the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant's or another person's genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object." (§ 289, subd. (k)(1).) Section 21a does not add a specific intent element not already included under the definition of the completed offense. (Ngo, supra, 225 Cal.App.4th at p. 156, citing § 21a.) Accordingly, the attempted crime is distinguished from the completed crime only by the failure to complete the actus reus, and the attempted offense is a lesser included offense under the elements test.
Respondent nonetheless argues the trial court had no duty to instruct on the attempted offense because the evidence did not support it. At trial, the prosecution relied on a video, which was shown to the jury, to prove count 6. In the video, appellant orally copulates E. between one and two minutes, the basis for the count 5 allegation. Appellant then moves to penetrate her genitals with his index finger. E. reacts and appellant withdraws. He then says, "Mmm using my pinky okay? Right here?" E. replies "Mhmm," and moves her hand to block him from using his pinky. Appellant responds, "Hmm? You not ready? Say cheese. My beautiful little girl sexy. She gone be a superstar one day. I see them - you ready. Alright, we gone pause that."
When the video was admitted into evidence, the detective who reviewed it testified that it contained digital penetration. Appellant did not elicit any testimony on cross-examination or provide any evidence as part of the case-in-chief tending to show that, on this occasion, he attempted to penetrate E. but failed to do so.
E.'s testimony, though general, was that appellant had subjected her to digital penetrations.
In closing, the prosecutor discussed the act of penetration related to count 6, stating, "we're referring to his finger. He licks his finger. He touches the inside of her vagina. While he may not - I'll - I'll admit. He is not able to get his finger all the way in because she immediately pulls back but what you know is that he is touching her vagina and any penetration no matter how slight counts for sexual conduct okay. [¶] So for Count Six, that's what we're referring to on file 5-6 is the finger that touches the inside of the vagina."
Defense counsel, in closing, spent a significant amount of time challenging the use of the file creation dates to establish E.'s age. He did challenge whether penetration of E.'s labia had been proven for several of the counts.
In Ngo, supra, 225 Cal.App.4th 126, the defendant was charged with sexual penetration or simple battery with no middle-road option. In that case, the court found the trial court had a sua sponte duty to instruct the jury on attempted sexual penetration with a child, as a lesser included offense. (Id. at pp. 155-157.) In her initial statements to the police, the victim in Ngo stated that the defendant touched her, but she was equivocal as to whether he actually penetrated her. (Id. at p. 157.) The victim's mother testified she interrupted the defendant's touching of the victim when she walked into the living room, but she did not see whether he penetrated the victim. (Ibid.) The defendant admitted touching the victim but denied that he penetrated her. (Ibid.) The court found the failure to instruct on attempted penetration prejudicial because "[i]t is reasonably probable the jury concluded defendant touched the victim's genital area in some manner, and that they opted for the more serious offense of sexual penetration because the only other options were ... simple battery conviction or outright acquittal." (Id. at p. 161.)
Again, as stated in section 289, subdivision (k)(1), the definition of penetration did not need to have appellant insert his finger all the way into E.'s vagina, but may be "slight." Here we find no prejudicial error in the trial court's failing to instruct on attempt. "[T]he failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility. We further determine, in line with recent authority, that such misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome." (People v. Braverman (1998) 19 Cal.4th 142, 165.)
As discussed, based on the video evidence, the given instructions, the parties' arguments and the jury's conclusions, we cannot conclude a different verdict was reasonably probable even if an instruction on attempt had been given. (People v. Breverman, supra, 19 Cal.4th at p. 165; People v. Watson (1956) 46 Cal.2d 818.)
III. DID THE TRIAL COURT REMOVE THE ELEMENT OF PENETRATION FROM CONSIDERATION BY THE JURY IN ITS COMMENTS DURING CLOSING ARGUMENT?
During closing arguments, counsel discussed which counts required penetration and the degree of penetration required to find appellant guilty of those crimes. During defense counsel's argument on these topics, the trial court interjected to provide some further clarification to the jury. Appellant contends the trial court's statements removed the element of penetration from counts 6 and 7, which was prejudicial as to count 6. We disagree.
Background
As noted above, the trial court instructed the jury with two separate versions of CALCRIM No. 1128. One version applied to count 5, and contained the pinpoint instructions specifically relating to oral copulation. For that crime, the instruction informed the jury that "[p]enetration is not required." The other version applied to counts 6 and 7, and contained only the language for the "sexual penetration" version of the offense. That instruction specified that "penetration, however slight, of the genital or anal opening of the other person, or causing the other person to penetrate, however slightly, the defendant's or someone else's genital or anal opening or causing the other person to penetrate, however slightly, his or her own genital or anal opening by any foreign object, substance, instrument, device, or any unknown object for the purpose of sexual abuse, arousal, or gratification" was required.
The prosecution, in closing, pointed out that penetration was required for some of the sex crimes, but not required for others. With regard to count 1 and the file associated with it, she pointed out that touching the child's body was all that was required. She described the file for count 1 as a photograph of "[E.]'s vagina with the defendant's penis pressed up against it." She argued "[d]id the defendant willingly touch any part of [E..]'s body? Absolutely. His penis is pressed up against her vagina."
The prosecutor explained that, for count 2, penetration was required, and described the corresponding file, stating "[h]e is placing his penis between what is referred to as the lips or the labia of her vagina. Okay. At that point any penetration whatsoever no matter how slight satisfies this element." The prosecutor further stated, "[l]ike I said, as long as his penis is touching the inside of her labia, any penetration no matter how slight satisfies this element."
The prosecutor also distinguished between count 5 and counts 6 and 7, the section 288.7, subdivision (b) charges. She told the jury that count 5 involved oral copulation, and counts 6 and 7 involved sexual penetration, and thus the court had given the separate element instructions. The prosecutor stated that penetration was not required for count 5. Rather, she explained, "[o]ral copulation is any contact no matter how slight between the mouth of one person and the sexual organ or anus of another."
As to counts 6 and 7, the prosecutor explained that those counts required "penetration however slight of the genital or anal opening ... for the purpose of sexual abuse or arousal or gratification."
For several other counts, as the prosecutor noted, the criminal act was appellant touching E. with his hands, penis, or bodily fluids. The prosecutor also discussed how the jury could use the file creation dates of the videos and photos appellant took to determine his and E.'s respective ages at the times of the incidents.
In his closing argument, defense counsel spent a significant amount of time challenging the use of the file creation dates to establish E.'s age. As noted, above, he also challenged whether penetration of E.'s labia had been proven for several of the counts. While discussing count 2, he stated, "I did hear at one point during the prosecutor's closing argument that during - as to some of the videos in this series of charges that the penis laid against the labia or rubbed against it and that was sufficient and I would argue to you that is not sufficient" to show penetration. The prosecutor objected to this statement "based on case law." The court indicated to the jury that the case law they should apply was captured in the jury instructions they had been provided.
The trial court then told defense counsel to "[c]ontinue." At this point, defense counsel attempted to inform the jury that he was arguing from "People versus Dunn, 205 Cal.App...", however, the prosecutor quickly cut him off with an objection, which the court sustained. The court told defense counsel argument about a specific case would be something they could put on the record "independent of' the jury. The court then stated, "[t]he Court is charged with making sure the jury [has] the right information to [effectively deal] with any facts in this case. So we'll take that off the record, but you will be allowed to make your record." Defense counsel then said, "Thank you Judge. [¶] For the record, I'm arguing from case law."
The prosecutor again objected, which the court sustained. The court reiterated that it was the court's job to place case law before the jury, and it was unfair for a party to charge them with considering any case law that was not before them. "Anyway," defense counsel continued, "penetration of at least the labia is absolutely required under the statute. You cannot merely lay your penis against the labia or rub it and say that this offense under 288.7(A) has been committed." He then repeated his contention that the prosecutor had argued that the sort of mere touching sufficient for lewd and lascivious acts would be sufficient to convict on the section 288.7, subdivision (a) charges as well. Defense counsel said, "Penetration is required. Penetration of the labia is required." He then explained to the jury there were charges where he had put a "question mark" in his notes as to whether penetration had been demonstrated; counts 2, 4, 5 and 6. At that point, the trial court interjected:
"THE COURT: Ladies and gentlemen, I'll butt in and make sure the jury are clear on the jury instruction concerning this so there[']s no concern. This is the 288. [¶] Could you go back a screen or two, [defense counsel]. [¶] I appreciate it.
"[DEFENSE COUNSEL]: Sure.
"THE COURT: Just to make sure.
"[DEFENSE COUNSEL]: Yeah.
"THE COURT: This is the 277.7(A) [ sic ]. It is instruction 12 -- 1127. It goes through a list of elements, engaged in sexual intercourse, et cetera. Two -- and so the date of birth of the young person. At that time the defendant was at least 18 -- 18 years old. So that's done. That explains it to you. Sexual intercourse means any penetration no matter how slight of the vagina and or genitalia by the penis. Ejaculation is not required. Follow that. [¶] The next one 1128 says the following which the (B)(1), it says engaging -- and this is oral copulation. So I don't want the two mixed up. It is charged as oral copulation with a child ten years or younger, in violation of Penal Code Section 288.7(B). It goes through the list of elements which is done. I don't want you to do that because that's -- the attorneys can argue that but you'll get the copy of it. It says oral copulation is any contact no matter how slight between the mouth of one person and the sexual organ, anus of another person. And it also says penetration is not required under that one. That's 1128 and that deals with oral copulation. Okay.
"MR. MYERS: Thank you, Judge."
Defense counsel then argued his statements on penetration had nothing to do with the oral copulation charge, and he was only arguing the issue of penetration on the sexual intercourse counts. He reiterated to the jury that they would have copies of the jury instructions, and urged them to "[f]ocus on the first jury instruction the judge read you." He then stated he was done with his closing argument, but had a motion to take up outside the presence of the jury.
Once the jury left the courtroom, defense counsel moved for a mistrial, based on "what transpired towards the end of my closing statement" and also because, he claimed, the prosecutor had argued that a penis on top of the labia counted for penetration. The prosecutor stated that she believed defense counsel had confused her comments related to a count that did not require penetration with the comments about one that did.
Defense counsel argued that the court had made him look foolish and stated, "now I'm - I'm with the jury who thinks I'm an idiot." He argued that the court had made him sound like he did not know what he was talking about when, in fact, he did. Defense counsel insisted he had a good argument based on the case he had tried to bring up earlier, People v. Dunn (2012) 205 Cal.App.4th 1086. A discussion followed about whether it was appropriate to argue case law to the jury in that manner, and whether some of defense counsel's arguments had made sense.
Ultimately, the court denied the motion for mistrial, but offered to go back on the record and give defense counsel additional time for closing argument if he wanted to clarify anything based on their discussions. Defense counsel did not feel the problem was "fixable." The trial court reiterated that it had made its ruling on the mistrial, but was offering appellant an opportunity. Defense counsel said he "would respectfully decline the opportunity."
On rebuttal, the prosecutor told the jury she believed there had been some confusion about her argument. She said she had not argued that only a touching was required for any count involving penetration. She argued only a touching was sufficient for count 1, which did not require penetration, where she had argued that the appellant's penis pressed against E.'s vagina constituted the required touching. She stated that count 2 required more than simply placing the penis against a vagina; it required penetration of the genitals, although the penetration did not require the penis to be "fully inserted" into the vagina. Regarding count 2, the prosecutor argued that because E.'s legs were spread open in the video and based on where appellant's penis was located in relation to E.'s vagina, appellant's rubbing motion penetrated the inside of her labia. The prosecutor did not further discuss count 6.
Defense counsel objected, and the court reiterated to the jury that they had the instructions and counsels' interpretations were only arguments. The jury was admonished to take the facts, apply them to the jury instructions, and "decide the ending."
Appellant's Argument
Appellant claims prejudicial error occurred when the trial court interrupted defense counsel while he was questioning whether the element of "penetration" required for count 6 had been met. As argued by appellant, rather than focusing on the elements for a violation of section 288.7, subdivision (b), which is what defense counsel was discussing, the trial court went back to CALCRIM No. 1127, the instruction for count 2, a violation of section 288.7, subdivision (a). According to appellant, "[b]y emphasizing that the requirement for penetration was necessary for counts charged under section 288.7, subdivision (a), . . . and stating that penetration was not required for oral copulation, which the court emphasized fell under subdivision (b), ... the trial court inadvertently led the jury to believe that the element of penetration was required only for those counts charged under section 288.7, subdivision (a)," and not count 6 where penetration was in question.
Applicable Law and Analysis
A trial court has a duty to "instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case." (People v. Anderson (2011) 51 Cal.4th 989, 996.) A trial court errs when it omits a required element of a crime from the jury instructions, or otherwise removes an element from the jury's consideration. (People v. Serrano (2022) 77 Cal.App.5th 902, 912.)
Appellant does not appear to argue that the instructions as given were erroneous, but rather that the trial court's interjection about the instructions prejudicially confused the jury. We disagree.
As evidenced by the parties' closing remarks, there was some confusion between the parties as to whether the prosecutor had argued that appellant setting his penis on top of E.'s genitals without "entering" them would be sufficient evidence for the kind of touching required in count 1 (lewd and lascivious acts against a child, § 288, subd. (a)), or if the prosecutor made that argument relating to count 2 (sexual intercourse or sodomy with a child, § 288.7, subd. (a)).
Additionally, immediately before the trial court's comments to which appellant now objects, defense counsel noted several counts that he had put "a question mark" beside for penetration or digital penetration, indicating the People had not proven that element, mentioning counts 2, 4, 5, and 6. Count 5 was the section 288.7, subdivision (a) allegation that specifically - and only - related to oral copulation with a child.
As evidenced by defense counsel's closing and the prosecutor's objections, the interpretation of what the argument had been and what elements were required for various counts led to confusion, and it was reasonable for the trial court to provide some clarification on the elements of section 288.7. In that context, the statement was not confusing or erroneous, and was instead responsive to the statements of counsel.
We also consider the comments in the context of the jury instructions as a whole. (People v. Friend (2009) 47 Cal.4th 1, 49; People v. Warren (1988) 45 Cal.3d 471, 487.) Appellant suggests that the jury would not be able to put the court's statement that penetration was not required for the section 288.7, subdivision (b) offense relating to oral copulation in context with the written instructions they received informing them that, for the section 288.7, subdivision (b) offenses not relating to oral copulation, sexual penetration was required. However, we presume that the jury is able to correlate the various instructions they receive together in order to interpret them. (People v. Jo (2017) 15 Cal.App.5th 1128, 1152.) Reviewing the instructions together, it is clear there is no likelihood that the jury misconstrued or misapplied the instructions.
The jury received a set of instructions that accurately denoted which crimes required proof of some penetration of the child's genitals. For additional clarity, the trial court developed separate instructions for counts 5 and 6 and 7 the section 288.7, subdivision (b) offenses - to impart that count 5 did not require penetration, but count 6 and 7 did. The court read the instructions to the jury, including the charge to "[p]ay careful attention to all of these instructions and consider them together." (CALCRIM No. 200.)
Appellant suggests that it is unlikely the jury consulted the written directions because they only deliberated for approximately 90 minutes in total over two days. That is speculation. The jury viewed videos and photos appellant had taken of his sexual abuse of E. and may well had been in agreement on the facts without much question other than how the facts applied to the instructions.
IV. DID THE TRIAL COURT ABUSE ITS DISCRETION IN SENTENCING APPELLANT?
Appellant contends the trial court improperly sentenced him to consecutive terms on his convictions because it mistakenly believed consecutive sentences were mandatory under sections 667.6 or 667.61, which he argues do not apply to his convictions, and that the trial court did not understand its discretion. Appellant further contends that if the trial court did understand its discretion, then it abused such discretion by imposing consecutive life sentences. We conclude the trial court properly exercised its discretion in sentencing appellant.
Procedural History
The probation report, which the trial court indicated it had read, recommended that each felony sentence be served consecutively, because "[t]he crimes and their objectives were predominately independent of each other" and "[t]he crimes were committed at different times or separate places, rather than being committed so closely in time and place to indicate a single period of aberrant behavior."
At sentencing, defense counsel indicated that "we're coming to an ultimate sentence of 132 years to life" and stated he understood that the trial court had "no discretion" in most of the "main charges" in this case. Defense counsel argued that, "for the counts that the Court does have discretion, the determinant terms are more or less now set in stone . . . by amendments to our sentencing laws." Defense counsel did argue that such a long sentence would be cruel and unusual punishment, and sought a lesser penalty. He acknowledged appellant's crimes were "horrible", but advocated that appellant did not have the criminal background to be deserving of such a sentence.
The prosecutor deferred to E. and K.W.'s statements to the court. In her statement, E. discussed how appellant's abuse had ruined her life and taken away her childhood. She proposed that a million years in prison was not enough time for what he had done.
K.W. also discussed the trauma that had been caused to E. by appellant's actions, as well as to herself. She noted that appellant seemed to see nothing wrong with what he did, and had no regret or remorse for his actions. She and E. would have a lifetime of trauma and emotional damage, and she felt a lifetime behind bars for appellant "will never be enough." The trial court stated E. and K.W.'s statements were valuable.
The trial court then asked defense counsel for any further comments, and he submitted on his prior statement regarding cruel and unusual punishment.
The trial court noted that there had been certain changes in the law, and for the determinate terms it had discretion as to "low term, mid term." The court noted several circumstances in aggravation that it felt justified a middle term, including that the victim was particularly vulnerable, the crimes indicated planning and sophistication and appellant took advantage of a position of trust or confidence to commit the offenses. The trial court further stated, "The other changes, the sentencing justification. In fairness to everyone here, just to make sure I'll do that justification, I'll read it into the record so there's no issue. There is an eight punishment. This is justification. As to Counts Three through Five, it's 25 years to life and the punishment as to Counts Six through Eight is 15 years to Life." In reviewing the factors in aggravation and mitigation, the trial court stated that it appeared the midterm of sentencing was warranted to the remaining determinate counts. The trial court made no statements demonstrating any perceived lack of discretion relating to concurrent or consecutive sentencing. Consistent with the recommendation in the probation report, the trial court imposed all felony sentences consecutively to one another.
Applicable Law and Analysis
"Section 669 grants the trial court broad discretion to impose consecutive sentences when a person is convicted of two or more crimes." (People v. Shaw (2004) 122 Cal.App.4th 453, 458.) The sentencing rules specify several criteria to guide the trial court's determination whether to impose consecutive or concurrent terms. Pertinent to this case are the facts that the "crimes and their objectives were predominantly independent of each other" and the "crimes were committed at different times or separate places ...." (Cal. Rules of Court, rule 4.425(a)(1), (3).)
All further rule references are to the California Rules of Court.
Appellant contends the trial court did not understand it had discretion in deciding whether or not to impose consecutive sentences, but rather that it assumed sections 667.6 and 667.61 (which mandate consecutive sentences for certain enumerated sex offenses not applicable here) applied. However, there is no mention of section 667.6 or section 667.61 in the record, and there is nothing to indicate that the trial court relied on either statute in imposing consecutive sentences. Instead, the probation report, which the trial court read, specifically states that the trial court was "justified" in imposing consecutive sentences, obviously referring to the trial court's discretion to do so.
A trial court is generally presumed to be "aware of its sentencing discretion." (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) We will not infer from a silent record that a trial court was ignorant of its sentencing discretion. (People v. Fuhrman (1997) 16 Cal.4th 930, 944-945; People v. Brown (2007) 147 Cal.App.4th 1213, 1229 [error may not be presumed from a silent record].) Thus, unless there is affirmative evidence to the contrary, a reviewing court will presume a trial court was aware of its discretion to impose concurrent terms. (People v. Booth (2018) 25 Cal.App.5th 450, 452.) We do so here.
Appellant also argues that, assuming the trial court understood its discretion to impose either concurrent or consecutive sentences under section 669, it abused its discretion in imposing the sentence consecutively. We find no abuse of discretion.
Again, "The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)
As noted above, rule 4.425 provides criteria for sentencing courts to consider when deciding whether to impose concurrent or consecutive sentences (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262-1263), and "[o]nly one criterion is necessary to impose a consecutive sentence." (People v. King (2010) 183 Cal.App.4th 1281, 1323.) The factors include whether the crimes and their objectives "were predominantly independent of each other" (rule 4.425(a)(1)), whether the crimes "involved separate acts of violence or threats of violence" (rule 4.425(a)(2)), or whether the crimes were "committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior" (rule 4.425(a)(3)). Also, courts may consider aggravating or mitigating circumstances, with some specified exceptions. (Rule 4.425(b).) As pertinent here, aggravating factors include that "[t]he victim was particularly vulnerable" (rule 4.421(a)(3)) and that "[t]he defendant took advantage of a position of trust or confidence to commit the offense" (rule 4.421(a)(11)), and mitigating factors include that "[t]he defendant has no prior record" (rule 4.423(b)(1)).
Appellant argues consecutive sentences were unwarranted because none of his offenses were enumerated sex offenses subject to the heightened sentencing requirements of sections 667.6 or 667.61, none of the offenses involved violence, and "no specific aggravators were pled and proven at trial," making the "draconian nature of the sentence" "neither justified nor explained."
A court abuses its discretion when its sentencing determination "exceeds the bounds of reason, all of the circumstances being considered." (People v. Bradford (1976) 17 Cal.3d 8, 20.)
Appellant committed long-term and repetitive instances of varied sexual abuse on a child who considered him to be her stepfather. While appellant claims that someone convicted for an enumerated "one-strike" sex offense could receive a lesser punishment than what was imposed on him, it is not outside the bounds of reason that a person who engages in multiple heinous crimes with a pattern of preying on a very vulnerable victim over a long period of time receive a longer sentence than a person who committed a single different but also heinous crime. In view of the record, we agree with the trial court that appellant violated the victim in horrific ways, and we conclude that the trial court did not abuse its discretion in imposing consecutive sentences.
DISPOSITION
The judgment is affirmed.
WE CONCUR: POOCHIGIAN, Acting P. J., PENA, J.