Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court No. YA069436, James R. Brandlin, Judge.
Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Steven E. Mercer and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
GRIMES, J.
Lazaro Pulido Ochoa (Appellant) timely appeals from the judgment entered January 27, 2009, following a jury trial in which he was convicted on nine counts of lewd act with a child under the age of 14 (Pen. Code, § 288, subd. (a)), one count of forcible lewd act on a child under the age of 14 (id., subd. (b)), one count of continuous sexual abuse (§ 288.5, subd. (a)), and two counts of lewd act with a child aged 14 with a 10-year age difference (§ 288, subd. (c)(1)). The jury also found true the special allegations extending the statute of limitations on all counts. Appellant was sentenced to a total term of 43 years 4 months computed as follows: on count 9, the upper term of 16 years; on count 3, a consecutive upper term of 8 years; on counts 1, 2, 4 through 8, 10 and 13, consecutive sentences of 2 years each (one-third the middle term); and on counts 11 and 12, consecutive sentences of 8 months each (one-third the middle term). Appellant was credited with 570 days of presentence custody credit, inclusive of 74 days good-time/work-time.
All further section references are to the Penal Code unless otherwise indicated.
Appellant contends that the trial court committed prejudicial error mandating reversal by admitting the factual details surrounding the extrajudicial statements of the two complaining victims in violation of the law concerning “fresh complaint” evidence. He further contends that the use of CALCRIM Nos. 1110 and 1120 constituted instructional error that deprived him of his constitutional right to trial by jury and to due process of law. Appellant also contends that the imposition of upper term sentences on count 3 (lewd act on a child) and count 9 (continuous sexual abuse) violated his federal constitutional rights to trial by jury, proof beyond a reasonable doubt and due process of law. Based on our review of the record and applicable law, we affirm the judgment.
FACTUAL SUMMARY
Appellant and Carmen A. (Carmen) met in Mexico as teenagers and had two children together, Jorge and Jacqueline. Jacqueline was born May 1979. Carmen separated from Appellant and had Marlene with another man; Marlene was born January 1985. Sometime in 1989, Carmen moved to the United States with the three children, reunited with Appellant and moved into his residence located on Orchard Avenue in Inglewood. When Marlene was around six years old, the family moved to a residence on Spruce Street in the City of Inglewood and then, within a couple of years thereafter, to a location on Freeman Avenue, also in Inglewood. Carmen had a drinking problem. She worked mornings, and the children were routinely left in the care of Appellant. Carmen and Appellant had a difficult relationship and often fought.
Marlene testified that the sexual touching by Appellant began within a few months of her arrival in the United States when she was about five years old. The “inappropriate touching” included Appellant touching Marlene’s vagina or “anal area” while he masturbated with his other hand. She further testified that he would give her money afterward and that this occurred approximately once or twice a month until she was six or seven years old. Marlene described an incident that occurred after the family had moved to Spruce Street in which the nature of the touching progressed. Marlene testified that Appellant kneeled above her, prevented her from pulling away and penetrated her vagina with his penis. The incident lasted for approximately 15 minutes, Appellant ejaculated outside her vagina, and afterward Marlene noticed that she had bled a little bit. She testified that this occurred again approximately two weeks later, that it occurred about twice a month thereafter until she was 16 years old, and that Appellant always gave her money afterward. When Marlene was either seven or eight, Appellant also started to have her masturbate him with her hand.
The family moved to Freeman Avenue when Marlene was between 11 and 12 years old. Marlene testified that she started menstruating at about age 12 and that Appellant thereafter started using condoms, but he nevertheless continued to ejaculate outside her vagina. When Marlene turned 16, she moved in at the Job Corps Center where she stayed for about a year and a half. During this period, Appellant would pick up Marlene once or twice a month and take her to a motel. The inappropriate sexual touching usually consisted of vaginal penetration, and Appellant continued to give her money after each incident. The sexual abuse of Marlene ended after she left the Job Corps just before turning 18.
Jacqueline testified to two incidents of sexual touching that occurred within about six months of each other when she was approximately 10 years old and the family was living on Orchard Street. The first incident involved Appellant coming into her bedroom one night and touching her breast. The second incident occurred in the living room where Jacqueline, Jorge and Appellant had been watching movies. Jacqueline testified that she had fallen asleep and she awoke because she felt her father touching her hand. Appellant took Jacqueline’s hand and placed it on his penis and attempted to have her masturbate him.
Appellant denied touching Marlene inappropriately at the age of five but admitted that he did start touching her in a sexual manner when she was approximately 11 or 12 years old. Appellant admitted to one incident when Marlene was younger. He believes they were living in the “apartment” on Spruce Street. He testified that one night he had fallen asleep in his work clothes in the living room and that he awoke to Marlene rubbing his penis through his clothes. He told her to go back to bed, and nothing further happened. Appellant testified that when the family moved to Freeman Avenue, Marlene again initiated touching him and he acquiesced. Appellant admitted that the sexual contact consisted of Marlene touching his penis, Appellant touching her vagina, and/or Marlene sometimes sitting on him so that there was contact between their private parts but no penetration. He also testified that this happened approximately once a month and that he often gave her money. Appellant testified that he began having “sexual intercourse” with Marlene when she was at Job Corps, that it was a “regular thing, ” and that it stopped altogether after she left Job Corps.
Appellant denied ever inappropriately touching Jacqueline. He explained at trial that when he admitted to touching Jacqueline while being interviewed by Detective Ana Tapia (Tapia), he did so only because her questioning had confused him. The transcript of the interview with Detective Tapia, admitted as defense exhibit B, contained admissions by Appellant that he did touch Jacqueline’s breasts one time when he was “looking for Marlene” and that it is possible the other incident happened with Jacqueline if he was drunk, or that it could have happened if Jacqueline said it did.
Neither of the victims reported the abuse at the time it occurred, with the exception of one attempt by Marlene, when she was around 12 years old, to tell her mother. Marlene testified that she told Carmen she did not like the way Appellant touched her but she was not specific or unequivocal because she felt bad, and that Appellant told her that no one would believe her because she was taking money and toys from him. Both victims testified to being frightened about reporting the abuse. In April 2007, after the abuse had stopped and Marlene was approximately 22 years old, she confided in her mother about the abuse. Shortly thereafter, Carmen discussed Marlene’s report with Jacqueline. Within a couple of weeks, Jacqueline then admitted to Carmen that she also was twice subjected to inappropriate touching by Appellant. In August 2007, Carmen, Marlene and Jacqueline reported the abuse to law enforcement. Appellant was picked up for questioning, waived his rights, and gave an interview to Detective Tapia. During the interview, Appellant admitted to engaging in some of the reported incidents of inappropriate sexual touching of Marlene and Jacqueline, but denied the balance of the reported events.
DISCUSSION
1. Appellant Waived the Claim That the Trial Court Erred by Admitting Portions of the Extrajudicial Statements of the Complaining Victims.
Appellant assigns error to the trial court’s admission of the factual details surrounding the reports of sexual abuse by Marlene and Jacqueline to third parties, including to their mother Carmen and to Detective Timothy MacLean (MacLean). Appellant contends that the testimony went beyond the scope of permissible “fresh complaint” evidence. “A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Further, Evidence Code section 353 provides that “[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.”
Respondent argues that Appellant waived this claim of error by failing to specifically and timely object to the admission of such testimony. The waiver argument has merit. The record discloses very little discussion about Respondent’s proffer of fresh complaint testimony. Just before the direct testimony of Carmen, the prosecutor stated her intent to limit her questioning to the disclosure of the complaints made by Carmen’s two daughters, stating that she is “not going to elicit anything else” from the witness. Appellant did not raise an objection as to the scope of questioning to be allowed in general, stating only that a limiting instruction would be requested. Thereafter, when fresh complaint testimony was elicited by the prosecutor from Carmen, MacLean, and Jacqueline, a limiting instruction was given to the jury.
No limiting instruction was requested by either side or given by the court during Marlene’s testimony concerning her reports to her mother.
The initial limiting instruction provided by the court was as follows: “Ladies and gentlemen, at the conclusion of the case, I’ll give you a series of instructions. One of those instructions will tell you that certain evidence may be admitted for a limited purpose. And it may only be considered by you for that limited purpose. [¶] The prosecutor is going to ask this witness regarding statements given to her by one of her children. You’re not permitted to accept the answer for the truth of the statement of the minor child. [¶] The only purpose that you may consider it for is the fact that disclosure was made by the child to the parent. The fact that a disclosure was made[, ] [n]ot the contents of the statement.” Each successive reading of the limiting instruction was slightly modified as to form but conveyed the same substance.
Appellant claims no error with respect to the content of the limiting instructions provided to the jury.
Appellant raised only a handful of objections to specific questions related to the fresh complaint evidence, allowing most questions to be answered without objection. During Carmen’s direct testimony, the trial court overruled an objection of “outside the scope” to a question asking if Marlene told her how long the abuse had occurred, to which Carmen replied “many years.” The court then sustained Appellant’s objection on the grounds of relevance to a follow-up question asking what Carmen understood Marlene to mean by Appellant having “violated her.”
A few objections were raised on other grounds such as “vague as to time” that are not pertinent to this discussion.
During Jacqueline’s direct testimony, the prosecutor posed the following question: “And did you tell her that the defendant had taken your hand and forced you to masturbate him?” Appellant asserted objections based on “[l]eading and hearsay.” The trial court did not rule on the leading objection but indicated that it would provide the limiting instruction and specifically inquired of defense counsel if he wanted to be heard further on the issue. Defense counsel simply responded, “That’s fine.” Defense counsel thereafter asked to approach the bench. At side bar, a discussion occurred about instructing the jury further that, notwithstanding the limiting instruction, they may accept as the truth any inconsistent statements that defense counsel may be able to elicit on cross-examination. Defense counsel did not raise any additional concerns about the scope of testimony being elicited from Jacqueline.
Later in Jacqueline’s testimony, Appellant again raised an objection based on “hearsay” when the prosecutor asked if Jacqueline had disclosed to MacLean the “abuse” she had experienced. The trial court once again offered the limiting instruction as to the proffered hearsay. Defense counsel did not take issue with the court’s ruling or raise any further objections. Finally, during the direct examination of MacLean, Appellant raised an objection, with no specific ground stated, and requested to strike testimony. In answering a question about disclosures made by Jacqueline, MacLean indicated in part that Jacqueline did not recall her precise age when the first incident occurred, but that “she was remembering as best she [could]” and that she was about eight years old. The trial court sustained Appellant’s objection and struck the testimony related to the “portion dealing with observations or opinion of the investigating officer.” No further specific objections were raised by Appellant to the scope of the fresh complaint testimony offered by the prosecution.
On this record, we cannot find that Appellant timely preserved an objection to the scope of admissible fresh complaint testimony elicited by Respondent. To the extent specific objections were raised to specific questions and ruled upon as discussed above, we find no error or abuse of discretion.
2. Appellant Has Not Shown He Received Ineffective Assistance of Counsel.
Appellant argues that the lack of proper objections to the fresh complaint testimony supports a finding by this court of ineffective assistance of counsel. “To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsel’s performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” (People v. Benavides (2005) 35 Cal.4th 69, 92-93.) Appellant has failed to make the requisite showing as to either element.
First, the record is devoid of any express explanation for why defense counsel did not object to the majority of the fresh complaint testimony Appellant now claims was erroneously admitted below. When the “ ‘ “record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[, ]... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, ” the claim on appeal must be rejected.’ [Citations.]” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) We would be justified in rejecting Appellant’s claim without further discussion.
However, Appellant argues that there can be no other explanation for failing to object to such improper evidence but for the incompetence of counsel. We disagree. “As a general rule, failure to object to specific items of evidence ‘involves tactical decisions on counsel’s part and seldom establishes counsel’s incompetence. [Citation].’ ” (People v. Johnson (1993) 6 Cal.4th 1, 35.) Furthermore, the record supports an inference that defense counsel made a tactical decision to allow some additional details surrounding the fresh complaint reports by Marlene and Jacqueline to both Carmen and MacLean in order to attempt to raise issues on cross-examination as to credibility based on prior inconsistent statements. Indeed, in cross-examining both Carmen and Jacqueline, defense counsel elicited additional details concerning the fresh complaint reports and also obtained an instruction from the trial court as to prior inconsistent statements. This was proper under the rules of evidence and within the realm of reasonable tactics to be employed as part of Appellant’s defense. We cannot say that choosing such a course of action constituted representation below “prevailing professional norms” simply because, in hindsight, it did not achieve the desired outcome.
“[U]nlike the prosecution, which generally cannot introduce or rely upon the details or substantive content of the victim’s complaint, a defendant who believes that the contents of the victim’s extrajudicial complaint may be useful to impeach the victim’s in-court testimony (or other aspects of the prosecution’s case) generally is free to introduce and rely upon the details of such a complaint as a prior inconsistent statement.” (People v. Brown (1994) 8 Cal.4th 746, 762 (Brown); see also Evid. Code, § 1235.)
There is also no showing that had the testimony been excluded, the outcome at trial would likely have been different. Under the common law fresh complaint doctrine, evidence that a victim of a sexual offense promptly reported the crime to a third party was admissible for the limited purpose of establishing that a complaint was in fact made and to negate any inference that the sexual offense at issue had not been committed. (Brown, supra, 8 Cal.4th at pp. 748-749, citing People v. Burton (1961) 55 Cal.2d 328, 351 (Burton).) In Brown, the Supreme Court revised the appropriate parameters of the admissibility of fresh complaint evidence. “[W]e conclude that the fresh-complaint doctrine, as traditionally defined, no longer provides a sound basis for the admission of evidence of extrajudicial statements made by the victim of a sexual offense in reporting the alleged crime. [¶] At the same time, however, we conclude that--setting aside the outdated notions upon which the doctrine traditionally has rested--the limited, nonhearsay evidence that in the past has been admitted under the fresh-complaint doctrine nonetheless is, in most instances, properly admissible at trial under generally applicable evidentiary standards. [¶] Accordingly, we conclude that the formulation and parameters of the fresh-complaint doctrine, as applied in this state, should be revised to reflect a more accurate understanding of the proper basis for the admission of such evidence. As we shall explain, we conclude that, under principles generally applicable to the determination of evidentiary relevance and admissibility, proof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose--namely, to establish the fact of, and the circumstances surrounding, the victim’s disclosure of the assault to others--whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of fact’s determination as to whether the offense occurred.” (Brown, supra, 8 Cal.4th at pp. 749-750.)
Appellant correctly argues that the specific details surrounding the nature of a complaint reported to a third party are not properly admitted. “[O]nly the fact that a complaint was made, and the circumstances surrounding its making, ordinarily are admissible; admission of evidence concerning details of the statements themselves, to prove the truth of the matter asserted, would violate the hearsay rule.” (Brown, supra, 8 Cal.4th at p. 760.) “But limiting the testimony to the ‘bare fact’ of the complaint is unwarranted.” (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 169, p. 884.) The Supreme Court in Burton held that evidence may be admitted “ ‘that the complaint related to the matter being inquired into, and not a complaint wholly foreign to the subject’ [citation]; that is, the alleged victim’s statement of the nature of the offense and the identity of the asserted offender, without details, is proper.” (Burton, supra, 55 Cal.2d at p. 351; see also People v. Meacham (1984) 152 Cal.App.3d 142, 159.)
The witnesses from whom fresh complaint testimony was elicited were Marlene, Jacqueline, Carmen, and MacLean. The direct testimony of Marlene as to the numerous incidents of sexual abuse she suffered was far more factually specific than any of the testimony elicited from her about her reports of same to her mother or law enforcement and preceded the receipt of any fresh complaint testimony from any witness. At the end of her direct testimony, when Marlene was asked to verify when the disclosures of the abuse were made to her mother and law enforcement, the scope of the questions and her responses were within that allowed under Brown, supra, 8 Cal.4th at pages 749-750, and Burton, supra, 55 Cal.2d at page 351. The jury was able to judge her credibility and assess her explanation of what occurred based on her firsthand direct testimony, with defense counsel having a full and fair opportunity to cross-examine her on those details.
Arguably Deputy Gregory Anderson’s testimony could be seen as including fresh complaint statements, but no assignment of error is raised as to his testimony, and the record suggests no improper statements were received from him in this regard.
With respect to the direct testimony of Carmen, the prosecutor did not elicit any improper details outside the scope of appropriate fresh complaint testimony under Brown and Burton. For instance, Appellant takes issue with the fact that as to the initial disclosure by Marlene, the trial court allowed the statement about Appellant allegedly having touched Marlene’s “butt” and that such testimony was a specific fact describing the nature of the alleged assault that should not have been allowed. We disagree. The statement was not extensive or detailed as to the manner of the touching. Carmen simply testified that Marlene disclosed that Appellant had touched her “butt.” This allowed the disclosure to have context as a type of improper sexual touching as opposed to some other type of conduct. It showed, without being factually explicit, that Marlene’s disclosure “related to the matter being inquired into, ” identified the “nature of the offense” and was “not a complaint wholly foreign to the subject.” (Burton, supra, 55 Cal.2d at p. 351, italics omitted.)
Like Marlene, Jacqueline testified with far more specificity as to the nature of the improper touching than she did when describing her reports of the abuse. The questioning of her as to the reporting of those incidents and her responses thereto were not improper as they simply related the nature of the offense without more. (Burton, supra, 55 Cal.2d at p. 351.) Moreover, as discussed above, to the extent the testimony can arguably be considered borderline as to factual details (e.g., regarding the forced “masturbation”), Appellant elicited far more details on cross-examination in this regard in an attempt to elicit inconsistent testimony from Jacqueline. There was no abuse of discretion in allowing the fresh complaint testimony with respect to Jacqueline.
Appellant also contends that improper testimony was admitted from MacLean related to the report obtained from Jacqueline and that these erroneous admissions prejudicially affected the outcome. We agree that the testimony of MacLean regarding the disclosures by Jacqueline was more factually specific than is proper under the fresh complaint doctrine. However, the admission of this testimony cannot reasonably be seen as having been determinative of the outcome. “ ‘When the court abuses its discretion in admitting hearsay statements, we will affirm the judgment unless it is reasonably probable a different result would have occurred had the statements been excluded.’ [Citation.]” (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1526 [admission of rape victim’s extrajudicial statements about assault not error where merely cumulative of victim’s direct testimony at trial]; see also People v. Manning (2008) 165 Cal.App.4th 870, 881 [hearsay statements concerning fresh complaint testimony not improper where complaining victim also testified on direct].) The testimony here, even assuming it was erroneously admitted, was merely cumulative of the direct testimony of the victims and, at worst, harmless error.
Appellant argues it was prejudicial error and necessarily affected the jury’s verdict because the fresh complaint testimony served to reinforce the victims’ versions of events. To be sure, the concern in allowing fresh complaint testimony is that such evidence, even with a limiting instruction, can erroneously be relied upon by the jury as tending to support the truth of the underlying charge. (Brown, supra, 8 Cal.4th at p. 763.) However, both victims testified at length on direct and cross examination as to the nature of the incidents, and the jury was not left to rely solely on the extrajudicial statements concerning the occurrence of the abuse. There can be no finding that the minimal amount of additional detail erroneously admitted during MacLean’s direct testimony was determinative of the outcome. Appellant’s ineffective assistance of counsel argument must fail.
3. Appellant Has Not Shown a Deprivation of Due Process.
Finally, Appellant argues that the admission of the factual details of the fresh complaint testimony was so serious an error as to amount to a deprivation of due process such that no specific objection at trial was required to preserve the argument for appeal. “[T]he admission of evidence, even if error under state law, violates due process only if it makes the trial fundamentally unfair.” (People v. Partida (2005) 37 Cal.4th 428, 436.) As already explained above, no specific objection was raised by Appellant to the bulk of the fresh complaint testimony elicited on direct examination with the exception of a handful of objections to certain questions, some of which were sustained by the court. As we already noted, we find no error as to the balance and no basis for finding the evidence rendered the trial fundamentally unfair. To the extent the admission of some of MacLean’s testimony was error, it was harmless and cannot be deemed to amount to a deprivation of a due process.
4. There Was No Instructional Error.
Appellant contends that instructing the jury with CALCRIM Nos. 1110 and 1120 as to counts 1, 2, 4 through 10 and 13 removed a factual element of the crime (lewd act on a child) from the jury’s consideration in violation of his state and federal due process rights. An instruction that erroneously negates, or removes from consideration by the jury, a material factual issue does present a due process question. (People v. Sakarias (2000) 22 Cal.4th 596, 623.) We find that the use of CALCRIM Nos. 1110 and 1120 was proper.
The record does not reflect any objection by Appellant to CALCRIM Nos. 1110 and 1120. However, because Appellant contends that the instructional error violated his substantive constitutional rights, no formal objection below is required to preserve the issue on appeal. (§ 1259.)
Appellant’s claim of instructional error is reviewed de novo. (People v. Alvarez (1996) 14 Cal.4th 155, 217; People v. Burch (2007) 148 Cal.App.4th 862, 870 [“Questions relating to the validity and impact of the instructions given to the jury are entitled to de novo review. We review the instructions independently because the underlying question is one of law and the application of legal principles”].) Moreover, in assessing whether or not there was instructional error, we are mindful that the “ ‘test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant’s rights.’ [Citation.] We determine the correctness of the jury instructions from the entire charge of the court, not from considering only parts of an instruction or one particular instruction. [Citation.]... [Citation.]... [I]n examining the entire charge we assume that jurors are ‘ “ ‘ “intelligent persons and capable of understanding and correlating all jury instructions which are given.” [Citation.]’ ” [Citations.]’ [Citation.]” (People v. Smith (2008) 168 Cal.App.4th 7, 13.)
Appellant contends that the inclusion of the phrase “[t]he touching need not be done in a lewd or sexual manner” in CALCRIM No. 1110 directly conflicts with the express statutory language defining the nature of the crime of lewd act upon a child (§ 288, subd. (a)), confuses the jury, and negates an essential element of the crime. Section 288, subdivision (a), provides: “Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.” Appellant contends that the statute clearly requires proof that the inappropriate touching of a minor was performed both “willfully and lewdly” and that CALCRIM No. 1110’s inclusion of the sentence that the touching need not be done “lewdly” negates that element of the crime. We disagree.
Appellant raises the same argument as to CALCRIM No. 1120. Our discussion with respect to CALCRIM No. 1110 applies equally to Appellant’s identical claim of error with respect to CALCRIM No. 1120.
Appellant notes for the record that this language was not contained in CALJIC No. 10.41.
The trial court instructed the jury with the full form language of CALCRIM No. 1110, modified only as to appropriate pronouns, as follows: “To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant willfully touched any part of a child’s body either on the bare skin or through the clothing, or the defendant willfully caused a child to touch her own body, the defendant’s body, or the body of someone else either on the bare skin or through the clothing; [¶] Two, the defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child; [¶] And three, the child was under the age of 14 years at the time of the act. [¶] The touching need not be done in a lewd or sexual manner. Someone commits an act willfully when he or she does it willingly or on purpose. [¶] It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [¶] Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or the child is not required. [¶] It is not a defense that the child may have consented to the act. Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.”
The language of CALCRIM No. 1110 properly comports with the statutory elements of the offense of lewd or lascivious act on a child. In discussing the definition of a “lewd” act under section 288, the Supreme Court has explained that the “statute itself declares that to commit such an act ‘wilfully and lewdly’ means to do so ‘with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires’ of the persons involved.” (In re Smith (1972) 7 Cal.3d 362, 365 (Smith).) The focus of the offending act is on the intent of the perpetrator. “[T]he courts have long indicated that section 288 prohibits all forms of sexually motivated contact with an underage child. Indeed, the ‘gist’ of the offense has always been the defendant’s intent to sexually exploit a child, not the nature of the offending act. [Citation.] ‘[T]he purpose of the perpetrator in touching the child is the controlling factor and each case is to be examined in the light of the intent with which the act was done.... If [the] intent of the act, although it may have the outward appearance of innocence, is to arouse... the lust, the passion or the sexual desire of the perpetrator [or the child, ] it stands condemned by the statute....’ [Citation.]” (People v. Martinez (1995) 11 Cal.4th 434, 444 (Martinez), italics omitted.)
The sentence as to which Appellant takes offense is properly included in the instruction so as to make clear to the jury that the physical act of touching involved need not be seen as lewd or offensive in and of itself. Even a physical touching that may appear innocent, if done with the requisite statutory intent, can be found to be a prohibited act under section 288. “As suggested in Smith, we can only conclude that the touching of an underage child is ‘lewd or lascivious’ and ‘lewdly’ performed depending entirely upon the sexual motivation and intent with which it is committed.” (Martinez, supra, 11 Cal.4th at p. 449, italics added.) CALCRIM No. 1110 does not improperly negate a statutory element of section 288. We find no error in the use of the instruction.
5. Appellant Was Properly Sentenced Under the Applicable Law.
Appellant was sentenced to a total term of 43 years 4 months computed as follows: on count 9, the upper term of 16 years; on count 3, a consecutive upper term of 8 years; on counts 1, 2, 4 through 8, 10 and 13, consecutive sentences of 2 years each, one-third the middle term; and on counts 11 and 12, consecutive sentences of 8 months each, one-third the middle term. Appellant was credited with 570 days of presentence custody credit, inclusive of 74 days good-time/work-time.
The court also imposed a $5,000 restitution fine, a parole revocation fine which was stayed pending successful completion of parole, a $260 court security fee and ordered payment of $400 to the sex crime fund.
Appellant contends that the imposition of consecutive upper terms of eight years on count 3 (lewd act on a child) and of 16 years on count 9 (continuous sexual abuse) under the amended procedures of California’s Determinate Sentencing Law (DSL) was error and violated the ex post facto and equal protection clauses of the United States Constitution. We reject Appellant’s contentions.
Insofar as appellant is appealing the imposition of consecutive sentences, the California Supreme Court held in People v. Black (2005) 35 Cal.4th 1238, 1261-1264 (Black I), that Blakely v. Washington (2004) 542 U.S. 296 (Blakely) does not apply to the decision to impose consecutive sentences.
“In Cunningham [v. California (2007) 549 U.S. 270 (Cunningham)], the United States Supreme Court, applying principles established in its earlier decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) and Blakely[, supra, ]542 U.S. 296, concluded that California’s DSL [did] not comply with a defendant’s right to a jury trial. ‘[U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.’ ” (People v. Sandoval (2007) 41 Cal.4th 825, 835 (Sandoval), quoting Cunningham, supra, at p. 281.)
Concurrent with Sandoval, the Supreme Court issued People v. Black (2007) 41 Cal.4th 799 (Black II). Both decisions were issued July 19, 2007.
Subsequent to Cunningham, the California Legislature passed Senate Bill No. 40 (SB 40; Stats. 2007, ch. 3, § 2) which amended California’s DSL, specifically section 1170, to eliminate the presumptive middle term as the statutory maximum in the absence of aggravating circumstances. SB 40 became effective March 30, 2007. Under the amended sentencing scheme, the trial court now has discretion to select the appropriate term within a specified range. (§ 1170, subd. (b).) Sandoval held that this cured the constitutional defect in the DSL “because the United States Supreme Court repeatedly has made clear in the line of decisions culminating in Cunningham that it ‘ha[s] never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. [Citations.]... For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.’ (United States v. Booker (2005) 543 U.S. 220, 233; [citation].)” (Sandoval, supra, 41 Cal.4th at p. 844.) Sandoval also fashioned a judicial remedy, consistent with the amendments to section 1170, for resentencing in cases following a reversal based on Cunningham error.
The Judicial Council similarly amended the sentencing rules, effective May 23, 2007, to conform to the amendments to the DSL. (See, e.g., California Rule of Court, rule 4.420; Sandoval, supra, 41 Cal.4th at pp. 847-848.)
Appellant was convicted in December 2008 and sentenced in January 2009, almost two years after the enactment of SB 40 and the decisions in Black II and Sandoval. While Sandoval did not squarely decide the issue, the Supreme Court indicated that the amendments to the DSL should reasonably be deemed procedural in nature and therefore properly held “applicable to any sentencing procedures conducted after the effective date of [the] amendments.” (Sandoval, supra, 41 Cal.4th at p. 845.) The Supreme Court concluded “that the federal Constitution does not prohibit the application of the revised sentencing process... to defendants whose crimes were committed prior to the date of our decision in the present case.” (Id. at p. 857.)
Because this case involves original sentencing proceedings rather than resentencing proceedings, it falls outside the scope of the precise holding in Sandoval. (See Sandoval, supra, 41 Cal.4th at p. 849 [noting that its holding “might be characterized as a limited reformation of the statute with regard to its application in resentencing proceedings”].) Nevertheless, even if we were to conclude that the trial court committed reversible error by imposing upper term sentences, the remedy would be to remand for resentencing under Sandoval and not, as appellant contends, a remand with instructions to impose the middle term. (Ibid.) In other words, Appellant’s remedy for error by the trial court in sentencing him under the procedures set forth in SB 40 would be a new sentencing hearing under the identical procedures, as prescribed by the court in Sandoval. There is no indication in the record that the result of a resentencing proceeding would be any different. As to both applicable counts, Appellant was rendered eligible for the upper term by virtue of a jury finding or by his own admissions as to at least one aggravating circumstance. We will not reverse for further proceedings when to do so would be “a useless and futile act and would be of no benefit to appellant.” (People v. Seldomridge (1984) 154 Cal.App.3d 362, 365; see also McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 121 [no reversal when requested remedy ineffective]; C. H. Duell v. Metro-Goldwyn-Mayer Corp. (1932) 128 Cal.App. 376, 385 [“it remains a rule of appellate procedure that a reviewing court will not remand a case where further proceedings therein would be futile”].)
DISPOSITION
The judgment is affirmed.
We concur: BIGELOW, P. J. FLIER, J.