Opinion
E065300
07-20-2017
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1403499) OPINION APPEAL from the Superior Court of Riverside County. Michael B. Donner, Judge. Affirmed in part; reversed in part. Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant, Lino Arturo Sanchez, guilty of (1) committing a lewd or lascivious act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)); and (2) attempting to prevent or dissuade the victim from reporting her victimization to a law enforcement officer (§ 136.1, subd. (b)(1)). The trial court granted defendant three years of formal probation with the condition that he serve 364 days in jail.
All subsequent statutory references will be to the Penal Code unless otherwise indicated. --------
Defendant raises two issues on appeal. First, defendant contends the trial court erred in its answer to a jury question. Second, defendant asserts the trial court erred by not instructing the jury on unanimity. We reverse in part and affirm in part.
FACTUAL AND PROCEDURAL HISTORY
A. BACKGROUND
Defendant was born in May 1994. The victim was born in January 2003. The victim was defendant's sister.
B. DEFENDANT'S VERSION OF EVENTS: PRETRIAL
1. ONTARIO POLICE
On the morning of October 2, 2014, Ontario Police Officer Beresford saw defendant driving erratically. Beresford stopped defendant. Beresford arrested defendant for reckless driving. While defendant was in the back of Beresford's patrol car, defendant said he had been hoping to be stopped by a police officer, and that he needed to speak to the officer. Beresford told defendant they would speak at the police station.
At the station, defendant told Beresford about an incident in which defendant touched the victim. Defendant asked the victim to come into his bedroom. The victim went into defendant's bedroom. Defendant caressed and hugged the victim. Defendant, over the victim's clothing, touched the victim's vagina. Defendant asked the victim if she wanted him to continue touching her, and she said she did, so he continued touching her. Defendant said that was the only time he touched the victim. Defendant appeared relieved to have told the officer.
2. RIVERSIDE COUNTY SHERIFF
On October 3, 2014, Riverside County Sheriff's Investigator Lutz interviewed defendant because the touching incident occurred in Riverside County. Defendant said he touched the victim "a couple months ago." Defendant abused methamphetamine. Defendant said he touched the victim for sexual arousal purposes and due to the methamphetamine.
Defendant told Lutz he used his hand to rub the victim's vagina over her clothing for less than one minute. Defendant said the touching took place at night, while defendant was laying on his bed. Defendant removed his hand from the victim's body because he no longer wanted to touch her and the victim was scared of their father walking into the room. Defendant told the victim they should keep the incident between themselves, and the victim agreed. Defendant said he wanted to "serv[e] the consequences for what [he] did."
C. VICTIM'S VERSION OF EVENTS: PRETRIAL
Lutz interviewed the victim. Lutz asked if "anybody ever touched" the victim. The victim said defendant had touched her. The victim explained that a medical bed, which defendant had used following a motorcycle accident, was in their father's bedroom. The victim sometimes slept in the medical bed because their father's bedroom was cooler than the victim's bedroom, and defendant no longer used the medical bed.
One morning, at approximately 6:40 a.m., the victim was lying on her side asleep in the medical bed. Their father had already left for work and other people in the house were sleeping. The victim awoke to defendant touching her outer thigh. When the victim described the touch, she motioned with a pat, followed by a rub. Defendant said, "Shh." The victim said, "I'm gonna tell my mom and my dad." Defendant responded, "If you do, I'm gonna kill you." Defendant left the room. The victim thought defendant's threat was serious. The victim did not tell their parents about the incident because she was afraid that if she did, then their parents would talk to defendant, and defendant would murder the victim or "do something" to their parents.
D. VICTIM'S VERSION OF EVENTS: TRIAL
The victim testified at trial. The victim denied that defendant touched her in an inappropriate manner. The victim denied awakening to defendant touching her leg. The victim denied that defendant said anything to scare her. The victim said she lied to Lutz. The victim said she lied because defendant was rude, and she thought the criminal justice process would scare him into being a nicer person.
E. DEFENDANT'S VERSION OF EVENTS: TRIAL
Defendant testified at trial. Defendant was on an all-terrain vehicle on May 4, 2012, when he had an accident. Defendant was in a medically induced coma for three months, followed by a two-year stay in a convalescent home and/or hospital. Defendant suffered a variety of injuries, including a head injury.
In January 2014, defendant was allowed to go home. Defendant was recovering from stomach surgery. Defendant was unable to walk. Over time, defendant regained his ability to walk. Defendant was "[s]omewhat" suicidal. Defendant did not want to kill himself, but hoped someone else would kill him. Defendant hoped that by telling Officer Beresford he molested the victim, that defendant would be put in jail where another inmate would kill defendant.
Defendant never touched the victim in a sexual manner. Defendant never called the victim into his room and touched her vagina over her clothing. Defendant hit or patted the victim's outer thigh to make her leave his medical bed. Defendant was not abusing methamphetamine in the summer of 2014. Defendant told Lutz he abused methamphetamine in order to appear "more guilty."
F. PROSECUTOR'S CLOSING ARGUMENT
During the prosecutor's closing argument, he said, "We have to accept as jurors . . . that we may never know exactly what happened." The prosecutor continued, "It is almost impossible in a case like this to come away feeling: I know exactly what happened." The prosecutor said, "But the question here is not do we know exactly what happened? Rather, the question is three part. . . . [¶] One, did the defendant touch her? That's it. We may not know exactly how, but, one, did the defendant touch her?"
The prosecutor asserted defendant's statements were proof that defendant touched the victim. The prosecutor argued that defendant's statements were "corroborated" by the victim's statements. The prosecutor asserted defendant touched the victim's vagina. The prosecutor argued there was one touching, followed by a threat.
The prosecutor attempted to reconcile the different versions of the events. The prosecutor asserted the victim described being touched on her "'lower body,'" while defendant said he touched the victim's vagina over her clothing. The prosecutor said the victim testified she was touched in the medical bed, which was defendant's bed; and defendant also said he touched the victim in his bed. The prosecutor said defendant testified he touched the victim at night, while the victim testified that she woke up to defendant touching her. The prosecutor argued that both versions reflect the touching happened during sleeping hours.
In regard to dissuading a witness, the prosecutor asserted that when a child is victimized, the child tells his/her parents—the parents are a child's "gateway to law enforcement." The prosecutor said, "Who is law enforcement? Who is that? That's her parents." The prosecutor continued, "[B]y the defendant preventing her from reaching her parents, he prevented her from contacting law enforcement and getting this crime reported."
G. DEFENSE COUNSEL'S CLOSING ARGUMENT
During closing argument, defendant's trial counsel argued, "[T]he second charge, is a specific set of facts that alleges that if somebody is a victim of a crime, did a person prevent that person from reporting to law enforcement? Right. Not to your mom, not to your dad, not to the person across the street, but to law enforcement."
H. JURY INSTRUCTION
The trial court instructed the jury with CALCRIM No. 2622: "The defendant is charged in Count 2 with intimidating a witness in violation of Penal Code section 136.1(b)(1).
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant tried to prevent or discourage Jane Doe from making a report that she was a victim of a crime to Law Enforcement.
"2. Jane Doe was a crime victim.
"AND
"3. The defendant knew he was trying to prevent or discourage Jane Doe from reporting she was a victim of a crime to Law Enforcement.
"A person is a victim if there is reason to believe that a federal or state crime is being or has been committed or attempted against him or her.
"It is not a defense that the defendant was not successful in preventing or discouraging the victim.
"It is not a defense that no one was actually physically injured or otherwise intimidated."
I. JURY QUESTION
During deliberations, the jury submitted the following question to the court: "In count 2 it asks if she was prevented from making a report to law enforcement. Some are in agreement that the prevention was to keep [the victim] from talking to the parent and therefore preventing the parent [from] alerting law enforcement. Is that an acceptable interpretation of the law? Some disagree on that point."
The trial court responded, "The law is expressed in CALCRIM 2622. If you feel it would be acceptable, the attorneys could each present further argument to you." Further argument was not presented.
DISCUSSION
A. JURY QUESTION
1. CONTENTION
Defendant contends the trial court erred by failing to give a responsive answer to the jury's question.
2. SECTION 136.1
We examine section 136.1 to determine if the trial court's answer was responsive to the jury's question. We apply the de novo standard of review when interpreting a statute. "'"'As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature's intent so as to effectuate the law's purpose. [Citation.] We begin by examining the statute's words, giving them a plain and commonsense meaning."' (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.)
Section 136.1, subdivision (b)(1), reflects it is a crime to "attempt[] to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from . . . [¶] . . . [m]aking any report of that victimization to any . . . local law enforcement officer."
The term "law enforcement officer" is commonly understood to mean sworn officers. (§ 13550, subd. (a) ["'Local law enforcement' means city police and county sheriffs' departments"]; People v. Frontier Pacific Ins. Co. (1999) 69 Cal.App.4th 1093, 1096 [law enforcement means an authorized peace officer]; Sims v. Superior Court (1993) 18 Cal.App.4th 463, 470 [law enforcement means an officer employed by a governmental entity whose primary duty is to enforce laws].) "Law enforcement" is not understood as including parents. Therefore, we conclude the definition of "law enforcement" does not include parents.
The prosecutor argued, in the trial court, that if "law enforcement" did not include parents, then young children, who would not report victimization to the police but would tell their parents, will not be protected by the statute. We agree there appears to be a gap in the statute. However, it is not the function of the courts to write legislation. It is apparent from the plain language of the statute that the Legislature did not include dissuading a victim from reporting victimization to a parent. The statute expressly prohibits dissuading a victim from reporting victimization to law enforcement. We must conclude the Legislature meant what it wrote and did not intend to include dissuading a crime victim from reporting victimization to a third person who, in turn, might report it to law enforcement.
3. SECTION 1138
"After the jury have retired for deliberation, . . . if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given . . . ." (§ 1138.) "This means the trial 'court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.]' [Citation.] However, '[a] definition of a commonly used term may nevertheless be required if the jury exhibits confusion over the term's meaning.'" (People v. Solis (2001) 90 Cal.App.4th 1002, 1015 (Solis).)
We apply the abuse of discretion standard of review when examining whether a trial court erred in fulfilling its obligation under section 1138. (People v. Lua (2017) 10 Cal.App.5th 1004, 1017.)
4. ANALYSIS
The prosecutor told the jury that the definition of law enforcement includes parents. Defendant's trial counsel told the jury that the definition of law enforcement does not include parents. The jury was given conflicting legal definitions. The jury asked the trial court to define law enforcement. The jury explicitly asked, "Is that an acceptable interpretation of the law?" The jury plainly asked for a legal definition.
The trial court's response (1) referred the jury back to CALCRIM No. 2622, which does not include a definition of "law enforcement," and (2) offered argument by the attorneys. The jury did not accept the trial court's offer of more argument by the attorneys.
The trial court had a duty to help the jury understand the term "law enforcement," but instead offered the jury more of what had caused the confusion—the instruction and the argument. The trial court's response to the jury's question did not aid the jury in "understand[ing] the legal principles it [was] asked to apply," because the answer referred the jury back to the same problematic sources. (Solis, supra, 90 Cal.App.4th at p. 1015.) The trial court abused its discretion in not offering the jury a definition of the term "law enforcement" because "'the jury exhibit[ed] confusion over the term's meaning.'" (Id. at p. 1015.)
5. PREJUDICE
"A court's failure under Penal Code section 1138 to adequately answer a jury's question 'is subject to the prejudice standard of People v. Watson.'" (People v. Lua, supra, 10 Cal.App.5th at p. 1017.) Therefore, we examine whether it is "reasonably probable that a result more favorable to defendant would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 837.)
The prosecutor was required to prove (1) defendant attempted to prevent or dissuade the victim from making a report of her victimization to law enforcement; and (2) defendant specifically intended to prevent or dissuade the victim from making a report to law enforcement. (People v. Wahidi (2013) 222 Cal.App.4th 802, 806.)
The victim awoke to defendant touching her body. Defendant said, "Shh." The victim said, "I'm gonna tell my mom and my dad." Defendant responded, "If you do, I'm gonna kill you." Defendant left the room. The victim did not tell her parents about the incident because she was afraid that if she did, then their parents would talk to defendant, and defendant would murder the victim or "do something" to their parents.
The evidence reflects the victim was dissuaded from telling their parents about her victimization. The victim was afraid that if she told their parents about her victimization then they would speak to defendant and then defendant might murder the victim. The evidence does not reflect the victim was dissuaded from making a report to law enforcement. It reflects she was dissuaded from speaking to her parents.
The evidence does not reflect defendant dissuaded the victim from making a report to law enforcement. Therefore, it is reasonably probable that a result more favorable to defendant would have been reached in the absence of the trial court's error. If the trial court had informed the jury that "law enforcement" does not include parents, then it is reasonably probable defendant would not have been convicted of dissuading a witness. Accordingly, we conclude the trial court's error was prejudicial.
6. PEOPLE'S ARGUMENTS
a) Question of Fact
The People contend the trial court did not err because "only the jury" could decide if dissuading the victim from speaking to her parents amounted to dissuading the victim from reporting the crime to law enforcement. The jury explicitly asked the court, "Is that an acceptable interpretation of the law?" The jury asked a legal question, i.e., does the definition of "law enforcement" include parents. It is the trial court's "duty to help the jury understand the legal principles it is asked to apply." (Solis, supra, 90 Cal.App.4th at p. 1015.) We are not persuaded the jury needed to answer the legal question by itself.
b) Directed Verdict
The People assert that if the trial court offered a direct "yes or no" response to the jury's question, the answer would have amounted to a directed verdict.
"The prohibition against directed verdicts 'includes perforce situations in which the judge's instructions fall short of directing a guilty verdict but which nevertheless have the effect of so doing by eliminating other relevant considerations if the jury finds one fact to be true.' [Citation.] . . . '[N]o fact, not even an undisputed fact, may be determined by the judge.'" (People v. Figueroa (1986) 41 Cal.3d 714, 724.)
We are not persuaded that offering an explanation of the law amounts to a directed verdict. A responsive answer by the trial court, clarifying the law, would have informed the jury that the definition of law enforcement does not include parents. The jury would then have the role of analyzing the evidence to determine if the evidence reflected, beyond a reasonable doubt, that defendant attempted to dissuade the victim from making a report to law enforcement. A direct/responsive answer from the trial court would not have usurped the jury's role as finder of fact. Accordingly, we are not persuaded that a responsive answer by the trial court would have amounted to a directed verdict.
c) People v . Hallock
The People rely on People v. Hallock (1989) 208 Cal.App.3d 595 (Hallock) to support their position that the definition of "law enforcement" includes parents. In Hallock, the defendant attempted to rape a 77-year old woman who knew the defendant's mother. The victim escaped, and as she fled, the defendant yelled, "[I]f you tell anybody anything that happened tonight here . . . I'll blow your house up." (Id. at p. 598.) The defendant was charged with dissuading a witness by force or threats from reporting the victimization to law enforcement, a violation of section 136.1, subdivision (b), but the trial court instructed the jury on knowingly and maliciously dissuading a witness from testifying at trial, a violation of subdivision (a) of section 136.1. (Id. at pp. 606-607.)
In rejecting the People's argument that the above-quoted statement "was sufficiently broad to encompass a violation of subdivision (a) as well as subdivision (b)," the Hallock court stated, "Defendant's threat could only reasonably have been believed to have been directed at reporting the crime to the police, defendant's mother or others in authority that might lead to defendant's arrest." (Hallock, supra, 208 Cal.App.3d at p. 607.) The quoted language sets out the Hallock court's view of possible interpretations of the defendant's statement, none of which include dissuading a witness from testifying at a future trial or court proceeding. The court did not hold that the definition of "law enforcement" includes parents. In sum, we find the People's reliance on Hallock to be unpersuasive.
7. FORFEITURE
a) Procedural History
i) Motion for Judgment of Acquittal
At the close of evidence, defendant's trial counsel moved for a judgment of acquittal on the dissuasion charge (§ 136.1). (§ 1118.1.) Defendant's trial counsel said, "[T]here is insufficient evidence to carry this charge. And it should be dismissed because, again, that subsection specifies, and it's very specific language, somebody dissuading, preventing from making a report to a public official. [¶] And to somehow bootstrap the argument that because she is young, and that, well, that's really a public official, because that's the conduit to a police officer, the Penal Code doesn't say that. The Penal Code—there is not 136.1, Subsection (2), for children under the age of 12." The trial court denied defendant's motion.
ii) Jury Question
The jury submitted its question about the definition of "law enforcement" to the trial court. In speaking with the trial attorneys, the trial court suggested it respond to the jury as follows: "'The law is expressed in CALCRIM 2622. Should you need to hear the attorneys' arguments, you may ask for readback.'" The trial court then decided it could not provide the jury a readback of the argument because the argument is not evidence.
The court went off the record. When the court came back on the record, it said, "I have, 'If you feel it would be acceptable, the attorneys could each present further argument to you,' in addition to the first sentence." The court asked the attorneys if the proposed answer was acceptable. Defendant's trial counsel responded, "Reluctantly, yes. No, I know you want—I agree. It's not my first choice."
b) Analysis
The People contend defendant forfeited the issue of whether the trial court adequately responded to the jury's question because defendant did not object to the proposed answer.
If a defendant "consents to the trial court's response to jury questions during deliberations, any claim of error with respect thereto is waived." (People v. Bohana (2000) 84 Cal.App.4th 360, 373.) However, the forfeiture rule does not apply where an objection would have been futile. (People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648.)
Defense counsel made his position on the definition of "law enforcement" in section 136.1 clear during the motion for judgment of acquittal; his position being that "law enforcement" does not include parents. The trial court denied the motion, thereby rejecting defense counsel's interpretation of the law. Because the trial court had already rejected defense counsel's interpretation of the law, an objection to the proposed answer on the same basis, e.g., that the trial court should tell the jury the definition of "law enforcement" does not include parents, would have been futile. We are not persuaded that defendant forfeited the issue; repeating his argument about the definition of "law enforcement" would not have been fruitful. (See People v. McKinnon (2011) 52 Cal.4th 610, 654 [repeating same unsuccessful objection would be futile].)
B. UNANIMITY INSTRUCTION
Defendant contends the trial court erred by not instructing the jury on the law of unanimity in relation to the molestation (§ 288, subd. (a)) conviction.
The trial court has a sua sponte duty to give the unanimity instruction when the circumstances of the case call for the instruction. (People v. Riel (2000) 22 Cal.4th 1153, 1199.) "In California, a jury verdict in a criminal case must be unanimous." (People v. Hernandez (2013) 217 Cal.App.4th 559, 569.) "Therefore, when the evidence suggests more than one discrete crime, either: (1) the prosecution must elect among the crimes; or (2) the trial court must instruct the jury that it must unanimously agree that the defendant committed the same criminal act." (Ibid.)
In the instant case, the prosecutor attempted to reconcile defendant's pretrial description of the crime with the victim's pretrial description of the crime. The prosecutor tried to explain how the two descriptions were sufficiently similar such that they could be understood as describing a single event. The prosecutor needed to make such an argument because defendant's incriminating pretrial statements required corroboration. (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169.)
By contending defendant and the victim were describing the same event, the prosecutor asserted there was corroboration for defendant's incriminating pretrial statement. Thus, the prosecutor made an election. The prosecutor asserted there was a single crime in which defendant touched the victim's vagina for a sexual purpose. Because the prosecutor made an election, we contend the trial court did not err by not instructing the jury on the law of unanimity.
Defendant asserts the trial court erred because the prosecutor told the jury, "we may never know exactly what happened." Defendant asserts the prosecutor did not make an election.
"The key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a 'particular crime' [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed [him] guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate 'when conviction on a single count could be based on two or more discrete criminal events,' but not 'where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.'" (People v. Russo (2001) 25 Cal.4th 1124, 1134-1135.)
As explained ante, the prosecutor made an election. The prosecutor asserted there was one touching—a single incident. The prosecutor's statement of "we may never know exactly what happened" can be understood as asserting it was unclear, due to the two different descriptions, exactly how defendant touched the victim. For example, the prosecutor went on to argue, "[T]he question is three part. . . . [¶] One, did the defendant touch her? That's it. We may not know exactly how, but, one, did the defendant touch her?" The prosecutor asserted the evidence was murky regarding exactly how the crime was committed. Because the lack of clarity discussed by the prosecutor concerned how a single crime was alleged to have been committed, we are not persuaded that the trial court erred by not instructing on unanimity. (People v. Russo, supra, 25 Cal.4th at p. 1135.)
DISPOSITION
Defendant's conviction on count 2, for dissuading a victim (§ 1361, subd. (b)(1)), is reversed. The concurrent jail term associated with count 2 is stricken. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.