Opinion
B160232.
7-25-2003
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO ZAVALA SANDOVAL, Defendant and Appellant.
The Hegner Law Firm and Richard M. Ewaniszyk for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Susan Lee Frierson, Deputy Attorneys General, for Plaintiff and Respondent.
Antonio Zavala Sandoval appeals from the judgment entered following his conviction by a jury for misdemeanor sexual battery (Pen. Code, § 243.4 , former subd. (d)(1)). Sandoval asserts erroneous jury instructions, prosecutorial misconduct and ineffective assistance of counsel rendered his trial fundamentally unfair. Sandoval also argues the courts order requiring him to register as a sex offender pursuant to section 290 constitutes cruel or unusual punishment under the California Constitution. We affirm.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Sandoval was charged with felony sexual battery by restraint and misdemeanor sexual battery ( § 243.4, subd. (a) and former subd. (d)(1), respectively). According to the evidence at trial, on the morning of June 8, 2001 B.G. went to see Sandoval, an attorney, to discuss a credit problem. When she arrived, Sandoval, who was alone in his office, motioned for her to sit on the sofa. As she walked toward the sofa, Sandoval came up behind her, wrapped both his arms around her as if holding a barrel and rubbed his clothed genital area in a gyrating motion against her body.
Section 243.4, subdivision (a), sexual battery by restraint, provides: "Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery." A violation of section 243.4, subdivision (a), is punishable as either a felony or misdemeanor.
At the time of Sandovals trial, section 243.4, subdivision (d)(1), provided: "Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery . . . ." In 2002, as a result of the addition of a new subdivision (c) to section 243.4, former subdivision (d)(1) was relettered (without substantive change) as subdivision (e)(1). (Stats. 2002, ch. 302, § 1, p. 960.) For convenience and clarity, this opinion hereafter refers to section 243.4, former subdivision (d)(1), by its current designation, section 243.4, subdivision (e)(1), and also identifies other portions of section 243.4 by their current subdivisions.
Sandoval was also charged with assault with intent to commit a felony ( § 220). That count was dismissed at the Peoples request prior to trial.
Using her elbows to break his hold on her, B.G. asked Sandoval, "What are you doing? Youre wrong." Sandoval grabbed B.G. by her left arm and, facing her, put his arms around her and kissed her throat, the top of her chest area and her cheek. B.G. broke free, told Sandoval that "he was mistaken," she "was not looking for a husband" and that she had come to obtain assistance with a credit problem. Sandoval responded by saying he wanted to have sexual intercourse with B.G. B.G. then moved away from Sandoval and sat down at the end of the sofa. Sandoval sat next to her, forcefully gripped the clothed, inner portion of her left thigh near her vagina and tried to convince her to submit to his sexual advances. B.G. extricated herself from Sandovals grasp, gathered up her papers and told him "Im leaving because youre not going to be able to help me like this." Sandoval took her papers, threw them on his desk and told B.G. he was going to make a telephone call that would help her with her credit problem.
When B.G. tried to get up from the sofa, Sandoval pushed her shoulder and told her to "wait," and said he would call a friend of his who would assist them in obtaining information about her credit difficulties. Sandoval went to his desk and told B.G. to fill out some papers while he made the telephone call. B.G. complied, believing that Sandoval now understood she did not wish him to behave in a sexual way toward her. When Sandoval finished his telephone call, he returned to the sofa where B.G. was sitting, told her his friend would charge him $ 75 for the paperwork, that he (Sandoval) would charge her $ 100 "to start" and that she should come back so he could have sex with her every week. B.G. told him she was leaving but, in order to ensure a safe escape, promised to come back the next day with money.
As B.G. left, Sandoval grabbed her buttocks. Sandoval walked B.G. to her car. B.G. was shaking and had difficulty opening her car door. She told Sandoval she had been abused in the past and would not allow that to happen to her again. B.G. left Sandoval and drove immediately to her doctors office "to get something for her nerves.
"Dr. Homer Hernandez, a medical doctor, examined B.G. on the date of the incident. Hernandez testified B.G. was extremely upset and crying. Hernandez noticed redness above B.G.s elbow, which appeared to be caused by pressure exerted on the arm. He also observed redness on her thigh although he could not recall whether the redness was on her right or her left thigh. Concerned that B.G. had been assaulted, Hernandez called the police.
Testifying in his own defense, Sandoval admitted he had kissed B.G. on the cheek when she first arrived in his office but denied otherwise touching any part of her body. He explained that he and B.G., who was a friend of his sisters, had engaged in friendly banter about sex while in his office. At trial Sandoval produced a copy of a $ 79 check he wrote to the copy service on behalf of B.G. Sandoval also testified that, prior to this case, he had never been accused of sexual assault.
Stella Livingston, who worked in the building across from Sandovals office, testified for the defense that she had seen B.G. and Sandoval talking and laughing outside of Sandovals office in the morning although she could not recall the date. According to Livingston, B.G. did not seem upset.
Jury Instructions, Verdict and Sentencing
The jury was instructed, without objection, with respect to both felony and misdemeanor sexual battery. The court further instructed that sexual battery in count 1 (felony sexual battery) and count 2 (misdemeanor sexual battery) were charged in the alternative and that the jury could not find Sandoval guilty of both. In addition, the court instructed the jury with the lesser included offense of battery ( § 242).
The jury found Sandoval guilty of both felony and misdemeanor sexual battery. The trial court granted Sandovals new trial motion with respect to count 1, finding insufficient evidence to support the conviction on that count, but denied the motion with respect to count 2 (misdemeanor sexual battery). Count 1 was thereafter dismissed on the Peoples motion. The trial court sentenced Sandoval for misdemeanor sexual battery to a term of 24 months probation and ordered him to register as a sex offender pursuant to section 290.
Section 290, subdivision (a)(1)(A), provides in part: "Every person described in paragraph (2), for the rest of his or her life while residing in, or, if he or she has no residence, while located within California, or while attending school or working in California . . . shall be required to register" as a sex offender.
CONTENTIONS
Sandoval contends: (1) The trial court committed numerous errors when instructing the jury; (2) several instances of prosecutorial misconduct rendered his trial fundamentally unfair; (3) his defense counsel was constitutionally ineffective for failing to object to both the courts and the prosecutors errors; (4) the trial court erred in denying his motion for a new trial on misdemeanor sexual battery; and (5) the order requiring him to register as a sex offender under section 290 constitutes cruel or unusual punishment under the California Constitution.
DISCUSSION
1. None of Sandovals Asserted Claims of Instructional Error Requires Reversal
a. The instruction concerning the "touching" element of misdemeanor sexual battery, although erroneous, was not prejudicial
Misdemeanor sexual battery is the unlawful touching of the intimate part of another person, against the victims will, and with the specific purpose of causing sexual arousal, sexual gratification or sexual abuse. ( § 243.4, subd. (e)(1).) Unlike sexual battery by restraint defined in section 243.4, subdivision (a), punishable as a felony, misdemeanor sexual battery does not require the accused to have physical contact with the victims skin. Rather, the touching may be accomplished "through the clothing of the victim." (Compare § 243.4, subd. (e)(2) [for purposes of misdemeanor sexual battery, "touches means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim"] with § 243.4, subd. (f) [for felony sexual battery by restraint, "touches means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense"]; People v. Dayan (1995) 34 Cal.App.4th 707, 715.)
The jury was instructed in this case that "touches" for both counts 1 and 2 means "physical contact with the skin of another person." Sandoval correctly asserts this instruction misstated the law of misdemeanor sexual battery, which does not require actual contact with the victims skin. ( § 243.4, subd. (e)(2).) Nevertheless, the instructional error was harmless because it added an unnecessary element to the offense, rather than reducing the prosecutors burden. As the Sixth District, confronted with the identical issue observed: "That the trial court here gave an erroneous instruction beneficial to the defendant does not provide him with a reason to complain on appeal. Defendant cites no authority for the startling proposition that if a courts instruction erroneously adds an element to an offense, a conviction must be reversed when there is insufficient evidence to support the added, but legally unnecessary, element. We fail to see how affirming a conviction when there is otherwise sufficient evidence to support [the requisite elements of the offense] violates any of the defendants rights." (People v. Dayan, supra, 34 Cal.App.4th at p. 717 [instruction to jury misstating that a misdemeanor sexual battery required actual physical contact with the victims skin, albeit erroneous, not prejudicial because instruction favored defendant].)
The erroneous instruction is the result of the misstatement of the law in CALJIC No. 10.37.1 which defines the term "touches" for misdemeanor sexual battery as "physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense."
Here, there was plainly substantial evidence to support the misdemeanor sexual battery verdict. B.G. testified Sandoval grabbed her clothed buttocks and groin area. (See § 243.4, subd. (g)(1) [defining "intimate body part" as "the sexual organ, anus, groin, or buttocks of any person, and the breast of a female"].) Accordingly, the courts incorrect instruction concerning the "touching" required to support a misdemeanor sexual battery conviction was not prejudicial.
Sandoval also asserts, in conclusory fashion, the trial court failed to adequately instruct the jury about the elements of felony sexual battery. Because the felony sexual battery conviction was dismissed, there can be no prejudice from any erroneous instruction as to that count.
b. The trial court did not err in instructing the jury on the specific intent required for misdemeanor sexual battery
Sandoval contends the court misstated the element of specific intent required for misdemeanor sexual battery when it told the jury (pursuant to CALJIC No. 10.37.1) that "specific intent to cause sexual abuse" means "a purpose to injure, hurt, cause pain or cause discomfort. It does not mean that the perpetrator must be motivated by sexual gratification or arousal or have a lewd intent." According to Sandoval, that instruction removed the requisite element of sexual arousal or gratification from sexual battery, thereby reducing sexual battery to a simple battery, an error the court compounded when it also instructed the jury on the definition of the term "willfully."
The court instructed the jury, without objection: "The word willfully when applied to the intent with which an act is done or omitted means with a purpose or willingness to commit the act or to make the omission in question. The world willfully does not require any intent to violate the law, or to injure another, or to acquire any advantage."
Contrary to Sandovals contention, the trial court properly advised the jury that "specific intent to cause sexual arousal, gratification, or abuse" was an essential element of misdemeanor sexual battery. (See § 243.4, subd. (e)(1).) Nothing in the courts clarification of the term "sexual abuse" either eliminated sexual arousal or gratification as one type of specific intent required to satisfy the statute or reduced sexual battery to simple battery.
Sandovals related contention concerning the courts definition of the term "willfully" suffers from a similar distortion of the record. In addition to instructing the jury on sexual battery, the court instructed on the lesser included offense of battery, telling the jury, "Every person who willfully uses any force or violence upon the person of another is guilty of the crime of battery." The additional instruction defining the term "willfully" plainly related to the simple battery charge and not sexual battery, for which a separate instruction on specific intent had been given.
c. The court did not have a sua sponte obligation to give a corpus delicti instruction
Sandoval contends the court had a sua sponte obligation to instruct the jury on the "corpus delicti rule," (set forth in CALJIC No. 2.72), requiring independent proof of a crime separate from the defendants extrajudicial admissions. (See, e.g., People v. Alvarez (2002) 27 Cal.4th 1161, 1170 ["Whenever an accuseds extrajudicial statements form part of the prosecutions evidence, . . . the trial court [must] instruct sua sponte that a finding of guilt cannot be predicated on the statements alone," unless the admitted extrajudicial statements were part of the crime itself].) Sandoval offers no legal or factual basis to support his contention that the instruction was required. The prosecutions case was predicated on B.G.s testimony, not any extrajudicial admissions of Sandoval.
CALJIC No. 2.72 provides: "No person may be convicted of a criminal offense unless there is some proof of each element of the crime independent of any [confession] [or] [admission] made by [him][her] outside of this trial."
d. The court did not err in failing to give a unanimity instruction
Citing prosecution evidence that Sandoval touched more than one intimate body part of B.G. (for example, her breast, buttocks and groin area) Sandoval asserts the court had a sua sponte duty to give a unanimity instruction. It is well settled that a unanimity instruction is not required where acts, continuous in nature, are "so closely connected as to form part of one transaction" such that there is "no reasonable basis for the jury to distinguish between them," particularly where the defendant presents the same defense to each of the acts. (People v. Stankewitz (1990) 51 Cal.3d 72, 100, 270 Cal. Rptr. 817, 793 P.2d 23.) Here, the touching of B.G.s breast, buttocks and groin area all occurred within the approximate one-to-two hour time period in which B.G. was in Sandovals office. Sandovals defense to each was the same — that is, that B.G.s testimony was incredible. Under these circumstances no unanimity instruction was required. (See, e.g., People v. Mota (1981) 115 Cal. App. 3d 227, 231, 234, 171 Cal. Rptr. 212 [repeated acts of rape during one hour part of a single course of continuous conduct for which no unanimity instruction required]; People v. McIntyre (1981) 115 Cal. App. 3d 899, 907-911, 176 Cal. Rptr. 3 [two acts of oral copulation within "matter of minutes" required no unanimity instruction].)
The unanimity instruction to which Sandoval refers may be found in CALJIC No. 17.01, which provides in part: "The prosecution has introduced evidence for the purpose of showing that there is more than one act or omission upon which a conviction . . . may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that he . . . committed any one or more of the acts or omissions. However, in order to return a verdict of guilty . . ., all jurors must agree that he [or she] . . . committed the same act or omission . . . ."
Sandoval also asserts that, because the jury ignored the trial courts instructions that it could find Sandoval guilty of the lesser charge of misdemeanor sexual battery only if it acquitted him of the greater offense, reversal is required. To state the argument is to give it more credence than it deserves. Because the felony sexual battery count was dismissed, there can be no prejudice in the jurys failure to follow the courts instruction.
3. Sandoval Has Not Demonstrated Any Prejudicial Prosecutorial Misconduct
Sandoval claims the prosecutor committed prejudicial misconduct by misstating the law of sexual battery during closing argument, by suggesting during closing argument that Sandoval had manufactured evidence, by disparaging Sandoval and his counsel, by questioning the credibility of Sandovals witnesses, by suggesting, during the examination of Sandoval that he paid his secretary "under the table" in violation of state and federal laws and by eliciting testimony from Dr. Hernandez that B.G. had told him Sandoval had caused her injuries despite an earlier ruling that B.G.s statement to that effect was inadmissible. To the extent Sandoval failed to object to most of the purported misconduct (with the exception of the comment on the payroll records and Dr. Hernandezs testimony) and has not demonstrated that objections would not have cured the harm, he has not preserved his claims for appeal. (People v. McDermott (2002) 28 Cal.4th 946, 1001.) In any event, as we explain, the argument lacks merit.
Referring to the $ 79 check Sandoval produced at trial, the prosecutor, who did not question Sandoval about whether he had altered the check, nonetheless suggested to the jury during closing argument that the date of the check "appeared to [have] been doctored," from a date prior to the incident to a date after the incident, and "if a person has nothing to hide, he has no reason to manufacture evidence."
During examination of Dr. Hernandez, the prosecutor asked:
"When you met with [B.G.] . . . did she tell you who the person was who caused her injuries? A: She told me a lawyer." The court ordered the answer stricken and admonished the jury to disregard it.
a. Standard of review
"A prosecutors conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, and particularly pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Morales (2001) 25 Cal.4th 34, 44; see also People v. Cash (2002) 28 Cal.4th 703, 733.)
b. The prosecutor did not misstate the law of misdemeanor sexual battery
During closing argument, the prosecutor informed the jury that, for purposes of both felony and misdemeanor sexual battery, physical contact with the victims skin was not required and that the touching over clothing was sufficient. Although, as we have explained, this is a misstatement of the law of felony sexual battery, which requires physical contact with the victims skin ( § 243.4, subd. (f)), it is a proper statement of the law of misdemeanor sexual battery, the only charge for which Sandoval was convicted and sentenced. (See § 243.4, subd. (e)(2).)
Sandovals related contention that the prosecutor misstated the law by suggesting that B.G.s thigh was an intimate body part is similarly meritless. The prosecutor told the jury that the term "intimate body part" means "sexual organ, anus, groin or buttocks of any person" or a womans breast. That is a correct statement of the law. ( § 243.4, subd. (g)(1).) The prosecutor referred to B.G.s thigh only when he argued the jury could find that "holding [B.G.] down by her inner thigh" would satisfy the restraint element of felony sexual battery. Although Sandoval also asserts this statement misstates the restraint required for felony sexual battery, because he was not convicted of felony sexual battery, any misstatement of the law in that regard was harmless.
c. The prosecutors remarks concerning the evidence and the credibility of Sandovals witnesses were not improper
"It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom." (People v. Wharton (1991) 53 Cal.3d 522, 567, 280 Cal. Rptr. 631, 809 P.2d 290.) Here, the prosecutor observed that the date of the check Sandoval had claimed to have written to the copy service on behalf of B.G. appeared to have been changed. Because the check, which had been introduced as evidence for the jurys consideration, had marks on the date, raising a permissible inference the date had, in fact, been altered, the prosecutors remarks were a proper comment on the nature of the evidence. (See People v. Sully (1991) 53 Cal.3d 1195, 1235, 283 Cal. Rptr. 144, 812 P.2d 163 ["Fair characterizations of the evidence" is permissible during argument].) In any event, the check, which Sandoval introduced as evidence presumably to bolster his testimony that his meeting with B.G. was purely professional (because it showed he did perform work on her behalf), had little to do with the case. B.G. did not dispute that Sandoval made a telephone call on her behalf during the meeting in his office. The jury chose to believe the events occurred as B.G. described them, not Sandovals version. Although the prosecutors comment about the check was certainly designed to question Sandovals credibility, it was far from improper.
Sandovals assertion that the prosecutor unfairly disparaged the credibility of witnesses and the integrity of his trial counsel fails for the same reason: Each of the challenged statements was a permissible comment on the testimony at trial and the inferences to be drawn therefrom. (People v. Sully,supra , 53 Cal.3d at p. 1235.) Similarly meritless is Sandovals assertion that reversal is required because the prosecutor asked Dr. Hernandez whether B.G. had told him who caused her injuries notwithstanding an earlier ruling that the statement was inadmissible hearsay. Even if the question (which required merely a yes or no answer, not a substantive explanation) was deliberately designed to elicit evidence of B.G.s statement to Dr. Hernandez, there is no basis for finding the misconduct rendered the trial fundamentally unfair, particularly in light of the courts immediate order striking the testimony and ordering the jury to disregard it. (See People v. Pinholster (1992) 1 Cal.4th 865, 919, 824 P.2d 571 [absent contrary indications, we presume jury was able to follow the trial courts instructions].) In sum, none of the conduct in question, whether considered separately or cumulatively, deprived Sandoval of a fair trial.
4. Sandoval Has Failed to Demonstrate Ineffective Assistance of Counsel
A defendant claiming ineffective assistance of counsel must show not only that his or her counsels performance fell below an objective standard of reasonableness under prevailing professional norms but also that it is reasonably probable that, but for counsels failings, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694 [104 S. Ct. 2052, 80 L. Ed. 2d 674]; In re Jones (1996) 13 Cal.4th 552, 561, 917 P.2d 1175.)
Sandoval asserts his counsel was ineffective in not pursuing the proposed testimony of Rojelio Rivera, who would have testified he had overheard B.G. in a conversation with coworkers sometime in 2000 say that she had problems with her husband and "there was no type of man that really could satisfy her besides a dildo," a term Sandoval testified B.G. had used as part of her sexual banter with him at his office. The trial court told counsel the proposed testimony constituted inadmissible character evidence under Evidence Code section 787. After a discussion held off the record, Sandovals counsel withdrew the proffered testimony. Sandoval offers no argument that the courts ruling was erroneous or that that another basis for admissibility existed and his counsel failed to pursue it. Indeed, Sandovals entire ineffective assistance argument rests simply on his assertion, made without supporting authority, that counsel should have found "some way" to get the evidence admitted. Without demonstration of either error or prejudice, his claim fails.
Evidence Code section 787 provides: "Subject to [the prior conviction exception in] Section 788, evidence of specific instances of his [or her] conduct relevant only as tending to prove a trait of his [or her] character is inadmissible to attack or support the credibility of a witness."
Sandoval also asserts that his trial counsel was ineffective for failing to object to the trial courts instructional errors concerning misdemeanor sexual battery, the failure to give a unanimity instruction and the prosecutors comments during closing argument. As we explained, none of the asserted conduct, whether considered separately or cumulatively, constituted prejudicial error. Because Sandoval cannot show a reasonable probability the result of his trial would have been different but for his counsels failure to object to the erroneous jury instructions or the prosecutors comments, his claim of ineffective of assistance of counsel on this basis also fails. (Strickland v. Washington, supra, 466 U.S. at p. 694; In re Jones, supra, 13 Cal.4th at p. 561.)
5. The Trial Court Did Not Abuse Its Discretion in Denying Sandovals Motion for a New Trial for Misdemeanor Sexual Battery
The trial court has discretion to grant a new trial if "new evidence is discovered material to the defendant . . . which he [or she] could not, with reasonable diligence, have discovered and produced at the trial." ( § 1181, 8th par.) The trial courts order denying a new trial motion will not be disturbed in the absence of a "manifest and unmistakable abuse of discretion . . . ." (People v. Turner (1994) 8 Cal.4th 137, 212, 878 P.2d 521.)
Sandoval contends he was entitled to a new trial based on "newly discovered evidence" that, if offered at the time of trial, would have impeached B.G.s credibility. B.G. testified at trial that she had not filed a civil lawsuit against Sandoval and thus had no financial motive to testify falsely; after trial, B.G. immediately filed a civil lawsuit against Sandoval. Sandoval argues this "newly discovered" evidence of B.G.s lawsuit impeaches B.G.s credibility and warrants a new trial.
Evidence of B.G.s civil lawsuit, filed after Sandovals criminal trial was completed, is neither "newly discovered" evidence that existed at the time of trial but was unknown or unavailable to the defense, nor is it impeachment evidence. B.G. testified truthfully that she had not filed a lawsuit. Her subsequent behavior after the lawsuit had concluded is simply irrelevant. In any event, impeachment evidence is not an appropriate basis for a new trial unless it completely destroys the credibility of the prosecutions principal witness. (People v. Huskins (1966) 245 Cal. App. 2d 859, 862-863, 54 Cal. Rptr. 253.) Because the asserted evidence was neither "newly discovered" nor completely destructive of B.G.s credibility, the trial court did not err in denying Sandovals new trial motion.
Alternatively, Sandoval asserts a new trial was mandated based on evidence that the prosecutor knew Sandoval had not altered the date of the check to the copy service but nonetheless argued that inference to the jury to attack Sandovals credibility. To support this contention, Sandoval included with his new trial motion the declaration of Remy Lopez, a copy service employee, who said that he had performed copy services for Sandoval pursuant to a request made on June 8, 2001. Lopezs supervisor declared that the check identified at trial was the same check Sandoval had issued as payment for the copy services ordered on June 8, 2001. According to Lopez, an assistant district attorney had telephoned him prior to trial with questions about invoices to Sandoval and that, when Lopez advised the caller that he did not have the file on hand, the caller hung-up and did not call back. Significantly, neither Robles nor Lopez suggested they ever informed the prosecutor about the date of the invoices. Nothing in either declaration establishes that the prosecutor learned the check had been written on June 8, 2001 and, despite this knowledge, argued a contrary inference to the jury.
The trial court, exercising its discretion, denied the new trial motion, reasoning that it was not the prosecutors argument about the check that cast doubt on Sandovals credibility, but Sandovals own testimony. The court explained, "I heard the testimony of the victim, I heard [Sandoval]s testimony, and he was his own worst enemy during the trial." Under the circumstances the courts denial of Sandovals new trial motion was well within its discretion.
Sandovals three other asserted grounds for a new trial — instructional error, ineffective assistance of counsel, and prosecutorial misconduct — are similarly baseless. As we have explained, none of the asserted actions, even if erroneous, was prejudicial. Accordingly, the trial court did not abuse its discretion in denying Sandovals new trial motion.
6. The Requirement that Sandoval Register as a Sex Offender Under Section 290 Is Not Cruel or Unusual Punishment
Relying on In re Reed (1983) 33 Cal.3d 914, 191 Cal. Rptr. 658, 663 P.2d 216 (Reed) Sandoval argues the requirement that he register as a sex offender under section 290 constitutes a penalty "grossly disproportionate to the nature of his offense" and thus violates the proscription against cruel or unusual punishment contained in the California Constitution. (In re Lynch (1972) 8 Cal.3d 410, 424, 105 Cal. Rptr. 217, 503 P.2d 921 (Lynch) [a penalty violates Californias constitutional proscription against cruel or unusual punishment when it is "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity."].) In Reed the Supreme Court declared that the application of the sex offender registration requirement to a person convicted under section 647, subdivision (a), of soliciting "lewd or dissolute conduct," a misdemeanor, was both "punishment" for purposes of analysis under the cruel and/or unusual prohibition in the federal and California Constitutions and "cruel and unusual" as applied to defendant, an adult homosexual with no criminal record who was convicted for masturbating in a public restroom. (Reed, at pp. 920-922.) Applying the factors set forth in Lynch, the Court reasoned that the defendants relatively minor, non-violent sexual indiscretion did not render him a "danger to society," that other more serious sexual offenses, including prostitution and lewd conduct in the presence of a child did not require registration, that only five states required any kind of sex offender registration, and that California was "virtually alone" in imposing the registration requirement for misdemeanor conduct. (Id. at p. 925.)
The registration requirement of section 290 is mandatory. (§ 290, subd. (a)(1)(A) [persons convicted of certain numerated offenses, including sexual battery under section 243.4, "shall be required to register" as a sex offender (italics added)]; People v. Monroe (1985) 168 Cal. App. 3d 1205, 1209, 215 Cal. Rptr. 51.) Of course, registration is prohibited when to do so would constitute cruel and/or unusual punishment in violation of the federal and/or California constitutions. (Monroe, at p. 1209.)
Since Reed, the Supreme Court has held that the registration requirement of section 290 is not "punishment" for purposes of ex post facto analysis. (People v. Castellanos (1999) 21 Cal.4th 785, 800-801, 982 P.2d 211.) However, because a majority of the Court in Castellanos did not overrule Reeds conclusion that the registration requirement was penal for purposes of analysis under the constitutional prohibitions against cruel or unusual punishment, Reed remains good law. Bound by Reed, and applying the factors articulated in Lynch, supra, 8 Cal.3d 410, we hold that application of the registration requirement, although penal in nature, is neither cruel nor unusual under the facts of this case.
The Supreme Court is currently revisiting the issue whether the registration requirement of section 290 is punishment for purposes of attack under constitutional prohibitions against cruel and/or unusual punishment and whether application of the section to misdemeanor offenders is "cruel and/or unusual." (See In re Alva (2001) 89 Cal.App.4th 758, review granted Sep. 19, 2001, S098928.)
We begin by examining, under the first prong of Lynch, the "nature of the offense and the offender, with particular regard to the degree of danger both present to society." (People v. Crooks (1997) 55 Cal.App.4th 797, 808, citing Lynch, supra, 8 Cal.3d at pp. 425-429.) Here, although Sandoval did not have a record of any prior sexual offenses, the nature of his crime was vastly different from the relatively minor sexual indiscretions considered in Reed, supra, 33 Cal.3d at page 914 or in In re King (1984) 157 Cal. App. 3d 554, 204 Cal. Rptr. 39 [cruel and unusual punishment to require defendant, convicted of a misdemeanor for exposing his penis to two teenage girls in public place, to register as sex offender].) Unlike the offenses in those two cases, Sandovals crime had an element of force and aggression; he repeatedly physically imposed himself on his victim against her will and did not stop until B.G. left his office. Even then, he followed her out and again sexually accosted her, touching an intimate part of her body against her will. Considering the facts of Sandovals particular crime, we hold the registration requirement as a sex offender does not "shock the conscience" or offend public notions of human dignity. (See, e.g., People v. King (1993) 16 Cal.App.4th 567, 575 [imposing registration requirement on defendant convicted of misdemeanor indecent exposure was not "cruel or unusual"; defendants attitude during commission of crime was "aggressive" and "hostile" and there was evidence to suggest his behavior could have escalated into more egregious sexual misconduct].)
Comparing Sandovals offense to more serious offenses (the second prong of Lynch), we are aware of no evidence, nor does Sandoval cite any, that the Legislature has exempted more serious sex related crimes from the registration requirement while imposing an onerous registration requirement for sexual battery.
Sandoval has also omitted any argument or evidence as to the third prong of Lynch, whether the punishment is disproportionate when compared to that imposed in other jurisdictions for similar misdemeanor crimes. It is Sandovals ultimate burden to establish disproportionality. (In re DeBeque (1989) 212 Cal. App. 3d 241, 255, 260 Cal. Rptr. 441; People v. Wingo (1975) 14 Cal.3d 169, 174, 121 Cal. Rptr. 97, 534 P.2d 1001 [it is a defendants burden to prove the punishment prescribed for his or her offense is unconstitutional].) Although we see no reason to undertake a nationwide search of registration requirements for similar misdemeanor offenses when Sandoval has not seen fit to make the argument himself, we nonetheless note that, at the time Reed was decided 20 years ago, only four other states had registration requirements for sex offenders. In the last decade, however, all 50 states and the federal government have passed sex offender registration statutes, (see Smith v. Doe (2003) ___ U.S. ___ [123 S. Ct. 1140, 1145, 155 L. Ed. 2d. 164]) vastly changing the landscape for the nationwide comparison the Court found persuasive in Reed.
Dispensing with the second and third prongs of the Lynch analysis, Sandoval argues simply that the "lifetime" aspect of the registration requirement is so onerous when compared to the crime as to "shock the conscience." However, because Sandoval was convicted of a misdemeanor, as opposed to a felony, his obligation to register may not last a lifetime. As a misdemeanant not proscribed by statute from obtaining a certificate of rehabilitation, Sandoval may, upon evidence of rehabilitation, be relieved of any further obligation to register as a sex offender. ( §§ 290.5; 290.4, subd. (a)(1).) We do not suggest that the possibility of obtaining a certificate of rehabilitation precludes, per se, any argument that a punishment is cruel or unusual. Rather, we hold only that, under the facts of this case, if there is some disproportionality of punishment to the offense, it is not so excessive as to shock the conscience and offend fundamental notions of human dignity.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J. MUNOZ (AURELIO), J.