Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County, No. JCF19702 William D. Lehman and Jeffrey B. Jones, Judges.
NARES, J.
In October 2007 a jury convicted Juan Carlos Arreguin of sodomy of a person under the age of 14 (Pen. Code, § 286, subd. (c)(1); count 1); sexual penetration with a foreign object by force or violence (§ 289, subd. (a)(1); count 2); and two counts of committing a lewd act upon a child under the age of 14 (§ 288, subd. (a); counts 3 & 4). The court sentenced Arreguin to a term of 16 years in state prison.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, Arreguin asserts (1) imposition of the upper term on count 4 violated the United States Supreme Court's decision in Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham); (2) the court erred by refusing to accept his pretrial no contest plea; (3) the court abused its discretion in denying his request for a continuance; (4) there is insufficient evidence to sustain his convictions on counts 1, 2 and 4; and (5) the court committed instructional error by failing to instruct on battery as a lesser included offense to sodomy. We affirm.
FACTUAL BACKGROUND
A. People's Case
1. Victim Son
In June 2005 G.R. and her two children, A. (son), age 12, and A. (daughter), age 9, lived in Calexico with R.'s sister. Arreguin is R.'s ex-husband's brother. Arreguin lived in Salinas, but often visited R. and her children. When he visited, he spent a lot of time with R.'s children, particularly son.
Son liked Arreguin prior to being molested, and they spent time at the park, mall, or movies. Arreguin bought son toys, shoes and clothing and told son he loved him.
Arreguin began to touch son when he was 11 or 12 years old. Arreguin became "too friendly" and tried to hold son too much. This made son uncomfortable. Son lived in Las Vegas when Arreguin first touched son's penis and butt with his hand. When Arreguin touched son's penis, he would slowly take off son's clothing. Arreguin also touched son when he lived in Calexico. Arreguin would kiss son's penis. Arreguin would also move his hand over son's penis. Arreguin held son's hand and taught him how to move his hand over Arreguin's penis. Arreguin also inserted his penis inside son's anus "a little bit." It hurt, stung and burned.
At trial son admitted he did not always see Arreguin's penis when he inserted it into his anus. When asked, "Did you always know it was his penis?", son replied, "Yes." When asked, "Did you see it, or were you just assuming it was his penis?", son said, "I assumed." Arreguin ejaculated on son's buttocks area and told son he loved him. This happened four to six times while they lived in Calexico. Arreguin tried to get son to kiss his penis, but son refused.
Arreguin told son not to tell anyone because he (Arreguin) would get in trouble. Arreguin was not violent with son, but he got mad if son told him no. Son believed Arreguin loved him and wanted his attention. Arreguin stopped when son told him it hurt, but would return later for more sexual relations.
At some point, son's testicles became swollen and caused him a lot of pain. It hurt when he sat down, ran or walked. Eventually, he told his mother and family what Arreguin was doing to him.
2. Victim Daughter
Daughter also used to like Arreguin. They went to the movies and Arreguin bought her toys. Arreguin touched her butt with his hands. When daughter was in Salinas with her family, she woke up and Arreguin's penis was in her anus. When asked if that ever happened in Calexico, daughter said, "No."
Daughter also related to investigators an incident that occurred in Calexico. One night, Arreguin, daughter, son and R. all were sleeping in the same bed. Daughter was lying between son and Arreguin. Arreguin "took out his dick" and then "grabbed [son's] dick." Daughter saw Arreguin put his hand in the middle of son's legs. At the same time, daughter felt Arreguin's penis on her leg. When R. awoke, Arreguin "put on his pants back real fast."
At trial, daughter testified about the Calexico incident where Arreguin touched son, but stated that Arreguin's penis only touched her in Salinas. Believing daughter was confused about where the incidents occurred between her and Arreguin, Detective Longoria reinterviewed daughter after she testified. In that interview, daughter told him that one time in Calexico, Arreguin reached over to grab son, and at that time she felt his penis rub against her thigh.
3. Disclosure of Abuse and Investigation
In June 2005 R. noticed her children did not want to spend time with Arreguin. In January 2006 R. took son to the hospital because he complained that one of his testicles was swollen, and he was in pain. Based upon these facts, R. became suspicious and thought "something bad" was going on. She spoke to son and daughter separately, and when both children told her that something had happened, she contacted the police.
R. spoke with Detective Erik Longoria. Detective Longoria then contacted Children's Hospital in San Diego and arranged for a forensic interview and medical exam. Social worker Laurie Fortin interviewed both children. After the interview, which Detective Longoria observed, he arranged for a medical examination of son.
Doctor Norena Vivanco-DeMartinez, a pediatrician at Children's Hospital, examined son. Dr. Vivanco-DeMartinez did not find any evidence of bruises, scars or trauma to his genital or anus areas. However, Dr. Vivanco-DeMartinez did not expect to find any injury to son's anal area as he reported the last contact with Arreguin had been two weeks prior to the exam, and anal injuries heal quickly. The symptoms around son's penis and scrotum were highly suspicious of a sexually transmitted disease.
Thereafter, Officer Longoria arranged for son to call Arreguin. The call was recorded, a tape of the call was played for the jury, and a transcript of the call was provided to the jury. Officer Longoria had son discuss with Arreguin the infection on his testicles, his visit to the doctor, and R.'s questions about his sexual activity.
Son told Arreguin about the infection. After confirming with son that he was alone, Arreguin told son infections were natural and told him to deny that anything had happened. Arreguin told him that he loved him and not to be scared because "that problem," "it's something that happens because, maybe you're delicate, my love...." Arreguin told son to tell R. and the doctor that he had had "relations" with a girl, and the infection was caused by his hands being dirty when he touched his "birdie." Arreguin told son he would also give R. the "idea" he (son) had been with a girl.
In April 2006 Arreguin was arrested and transported to the Salinas police station. Officer Longoria interviewed Arreguin after he was advised of and waived his Miranda rights. After at first denying he had relations with son, he eventually admitted that once, in Calexico, he had sex with son. However, Arreguin claimed it was consensual and initiated by son. He admitted that he told son once to suck his penis but because son did not want to, he did not force him. He also admitted he sucked son's penis. He eventually admitted that "maybe" he penetrated son.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602].
Arreguin denied doing anything to daughter.
B. Defense Case
After the People rested their case, Arreguin recalled daughter to the stand. She stated she spoke with the prosecutor the evening before she testified. Before daughter spoke with the prosecutor, it was her understanding that Arreguin only touched her in Salinas. She felt pressured to say something happened in Calexico. Arreguin touched her "private parts" with his "thing" in Salinas. However, on cross-examination by the People, daughter reiterated that an incident occurred in Calexico when she felt his "thing" on the side of her leg when he was doing something to son.
DISCUSSION
I. IMPOSITION OF UPPER TERM SENTENCE
Arreguin asserts that under Cunningham, supra, 549 U.S. 270, the court erred in imposing the upper term on count 4. He acknowledges the California Supreme Court's decision in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval)holds otherwise, and that we are bound by that decision, but nevertheless contends it was wrongly decided. This contention is unavailing.
A. Background
At sentencing, the court made the following findings:
"Well, you know, the court heard this trial. It lasted over several weeks. And, you know, the seriousness of this case, in my opinion, cannot be oversighted [sic], how defendant took advantage of his position in his family, took advantage of these children who depended on him for financial and emotional support. And he committed numerous acts of substantial sexual conduct over a prolonged period of time in Monterey County and Imperial County, and also the in state of Nevada. [¶] Now, during his interview... with the probation officer the defendant denied committing any offense against his niece [daughter]. And as to his nephew, he seems to justify his conduct by saying that this 13-year-old boy was a mature homosexual who desired a homosexual relationship with him. To me, this delusional thinking is evidence of his danger to these children and the public at large. [¶] Probation is denied for these reasons, and in the court's view a long prison sentence is appropriate. [¶] Now, I've looked closely at the Sandoval case. I've read the People's statement in aggravation, which deals with the Sandoval case, and I've also read counsel's response. [¶] It's clear to me that the amendments made to [section 1170] to deal with the Cunningham decision apply in this matter.... [T]hat's my interpretation of the Sandoval case. So the Court believes that it does have the power to impose the upper term."
The court selected count 4 as the base term and imposed the upper term of eight years. The court imposed the upper term of eight years on count 2 and ordered that sentence to run consecutively to count 4. The court imposed sentences of eight years on counts 1 and 3, but stayed them under section 654.
B. Analysis
Arreguin contends the court violated the ex post facto clauses (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9) and Cunningham, supra, 549 U.S. 270, by considering facts not found by the jury in imposing the upper term sentence as to count 1.
Cunningham held that California's determinate sentencing law (DSL), as it existed at that time, violated a defendant's Sixth and Fourteenth Amendment right to a jury trial because it gave "to the trial court, not to the jury, authority to find the facts that expose a defendant to an elevated 'upper term' sentence." (Cunningham, supra, 549 U.S. at p. 274.)
In response, the Legislature amended the DSL by eliminating the presumption that attached to the middle term. The amendments, which became effective March 30, 2007, made three changes: (1) They eliminated the mandatory middle term and gave trial courts discretion to select an appropriate term; (2) they required trial courts to select the term that best serves the interest of justice; and (3) they required trial courts to support their sentencing selections with reasons, not facts. (§§ 1170, as amended by Stats. 2007, ch. 3, §§ 2, 7; 1170.3, subd. (a)(2);; Cal. Rules of Court, rule 4.420.)
In Sandoval, supra, 41 Cal.4th 825, our Supreme Court held the amended DSL could be applied to future sentencing proceedings without running afoul of the ex post facto clause, even if the underlying crimes predated the amendments. This was because the amendments were a change in procedure, rather than substance. (Id. at p. 845.) The amendments to the DSL did nothing to increase potential punishment. Rather, they simply restored greater discretion to the trial courts in selecting an appropriate punishment. (Id. at pp. 854-855.) We are bound to follow Sandoval. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.) Thus, the court did not violate Arreguin's constitutional jury trial rights by imposing the upper term on count 4.
II. REJECTION OF NO CONTEST PLEA
Arreguin asserts the court erred in rejecting his no contest plea to two counts of violation of section 288, subdivision (a). This contention is forfeited and, even if properly preserved for review, is meritless.
A. Background
In September 2007, prior to trial, the People indicated they were withdrawing their plea offer of 12 years to Arreguin. The prosecutor indicated he had previously told Arreguin's counsel that once the child victims were prepared for trial, the offer was withdrawn.
At a hearing held the next day, the day before the case was set to go to trial, the court (the Honorable William D. Lehman) addressed Arreguin, noting defense counsel had indicated Arreguin wished to enter a no contest plea to counts 2 and 6. The court asked Arreguin, "Is that what you would like to do, sir?" Arreguin replied, "On [son], they had told me─I thought we had already taken care of that one." He also indicated he believed the charge involving daughter was going to be dismissed. When the court expressed confusion over Arreguin's remarks, Arreguin stated, "I was never told I had six charges pending." The court explained, "Well, one of them is new to make the plea agreement work."
Thereafter, the court again explained to Arreguin, with regard to the charge against daughter, that the information had been amended so that he was being charged with a less serious charge, e.g., lewd and lascivious conduct, rather than sexual penetration or sodomy. The court then asked Arreguin again if he intended to plead no contest to counts 2 and 6. Arreguin replied, "I didn't have anything to do with [daughter]."
The court explained to Arreguin that if he believed he was innocent of one or more of the charged offenses, he should go to trial. Defense counsel conferred with Arreguin and then indicated to the court that Arreguin understood the matter. The court asked Arreguin again if he intended to plead no contest to counts 2 and 6. Arreguin replied, "Yes." However, when the court explained Arreguin's constitutional rights and asked if he wished to waive them, Arreguin did not agree to waive those rights. Instead, he responded by asking if he could have a continuance to obtain private counsel.
The court then told Arreguin that he did not appear comfortable with the disposition, and it was not going to accept his plea. His attorney agreed that Arreguin appeared uncomfortable with the plea and announced he was ready for trial.
Thereafter, Arreguin stated he did not want to go to trial. The court replied that it was not prepared to go forward with a plea at that point as Arreguin had "too many reservations about the plea." When Arreguin again stated, "I want to settle this case right now," the court responded that it was not prepared to accept the plea and that it did not think he was "making a knowing and voluntary waiver" of his rights.
B. Forfeiture
As a general rule, a defendant waives errors by failing to bring a timely challenge. (People v. Marchand (2002) 98 Cal.App.4th 1056, 1060.) This rule is designed to prevent the errors that could have been remedied had the issue been timely raised. (People v. Simon (2001) 25 Cal.4th 1082, 1103.)
Defense counsel did not object when the court refused to accept Arreguin's no contest plea or argue that his attempt to plead no contest was knowing and voluntary. Indeed, counsel agreed with the court's assessment that Arreguin was waffling as to whether to plead no contest and announced they were ready to proceed with trial. Accordingly, Arreguin has forfeited the right to raise this issue on appeal.
Further, were we to reach the merits of this issue, we would conclude it lacks merit.
C. Analysis
A criminal defendant has no constitutional right to plead guilty. (North Carolina v. Alford (1970) 400 U.S. 25, 38, fn. 11.) Rather, a defendant's right to plead guilty is governed by statute. (Ibid.; §§ 859a, subd. (a), 1018.)
In order for the trial court to accept a defendant's plea, the plea must be knowing, intelligent, and voluntary. (Boykin v. Alabama (1969) 395 U.S. 238, 242-243.) Thus, before accepting a plea, a court must "cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made...." (§ 1192.5; In re Tahl (1969) 1 Cal.3d 122, 132-133.) It is not an abuse of discretion for a court to refuse to accept a defendant's guilty plea when it determines it is not freely and voluntarily made. (People v. Snyder (1989) 208 Cal.App.3d 1141, 1146-1147.)
Here, there was ample evidence in the record from which the court could conclude Arreguin's attempt to plead no contest was not freely and voluntarily made. Arreguin did not understand which charges involving son remained and indicated he believed all charges related to daughter were going to be dismissed. When asked if he wished to waive his rights, Arreguin asked if he could obtain private counsel. Under these facts, the court acted well within its discretion in refusing to accept Arreguin's plea.
III. DENIAL OF REQUEST FOR CONTINUANCE
Arreguin asserts the court erred in refusing his request for a continuance to obtain an expert on child suggestibility. We reject this contention.
A. Background
The information in this matter alleged that all of the offenses, including the charge related to daughter, occurred in Calexico. Nevertheless, when the prosecutor asked daughter if she recalled telling anyone about seeing "stuff happen" in Calexico, defense counsel requested a sidebar and accused the prosecutor of acting in bad faith by not providing discovery regarding any crime against daughter that occurred in Calexico. The court disagreed, pointing out the information alleged the acts occurred in Imperial County and that defense counsel had been on notice of that "for a long time."
Thereafter, at the close of the People's case, defense counsel indicated he was not prepared to proceed. Because daughter had never said anything in her interview or statements about anything happening in Calexico, and she testified consistent with this, he had not retained an expert on suggestibility. Defense counsel asserted that because the prosecution had contacted her after her testimony, and she subsequently changed her testimony as a result of the prosecutor's "leading questions," it was necessary for the defense to obtain a "suggestibility expert who can review what happened and come to court and explain to the jury why a child would suddenly do this."
The prosecutor responded that the original complaint and information had always alleged the act against daughter occurred in Imperial County. Therefore, there was no good cause for a continuance.
The court observed that the record in the case showed Arreguin had stipulated to probable cause, and the complaint and information always alleged the act against daughter occurred in Imperial County. The court further stated that "from the outset of this case, counsel had access to this interview of [daughter]" and, based upon daughter's statements during the interview, it could be inferred that the act involving Arreguin touching her with his penis occurred in Calexico. The court stated, "[W]hen counsel announces ready on a case like this, counsel is expected to proceed to meet the charges. And the charges from the very beginning were [that Arreguin] committed the acts, an act against [daughter in] Imperial County." The court denied the motion for a continuance.
B. Analysis
The decision whether to grant or deny a continuance rests within the sound discretion of the trial court, although that discretion may not be exercised to deprive the defense of a reasonable opportunity to prepare. (People v. Sakarias (2000) 22 Cal.4th 596, 646; People v. Beames (2007) 40 Cal.4th 907, 920.) The party challenging the trial court's ruling bears the burden of establishing an abuse of discretion, and discretion is abused only when the court exceeds the bounds of reason. (Beames, supra, at p. 920.)
Here, Arreguin cannot show the court abused its discretion in denying his request for a continuance. He knew from the beginning of this matter that the People were charging him with a crime against daughter that occurred in Imperial County. If defense counsel believed there was a factual question as to where the acts against daughter occurred, he should have been prepared from the outset to prove that fact. The motion for a continuance was untimely and did not demonstrate good cause because Arreguin could not claim to be surprised by the prosecutor's theory of liability.
IV. EVIDENCE IN SUPPORT OF CONVICTION ON COUNTS 1, 2 & 4
Arreguin asserts there is no substantial evidence to support his convictions on counts 1, 2 and 4. This contention is unavailing.
A. Standard of Review
The critical inquiry on review of the sufficiency of the evidence is whether the record reasonably supports a finding of guilt beyond a reasonable doubt. "[T]his inquiry does not require a court to 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [99 S.Ct. 2781]; People v. Johnson (1980) 26 Cal.3d 557, 576.) Thus, "'"'[i]f the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.'"' [Citations.]" (People v. Stanley (1995) 10 Cal.4th 764, 793; see People v. Bean (1988) 46 Cal.3d 919, 933.)
B. Analysis
1. Count 4
Arreguin first contends there is no substantial evidence to support his conviction on count 4, committing a lewd act upon a child (daughter), because there is no evidence he touched her with a lewd and lascivious intent. Rather, he asserts that in the incident described by daughter when his penis touched her leg, his intent was directed only at son. We reject this contention.
Section 288, subdivision (a), states in part, "Any person who willfully and lewdly commits a lewd or lascivious act... 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."
Moreover, "[b]ecause intent for purposes of [] section 288 can seldom be proven by direct evidence, it may be inferred from the circumstances." (In re Mariah T. (2008) 159 Cal.App.4th 428, 440.) In deciding whether there is the intent required by section 288, the trier of fact is "free to consider the relationship of the parties, the nature of the touching, and the presence or absence of any nonsexual purpose under section 288." (People v. Martinez (1995) 11 Cal.4th 434, 450, fn. 16.) The jury may also consider any uncharged offenses in determining the issue of intent. (Evid. Code, § 1108.)
Here, daughter testified as to the uncharged offenses by Arreguin that occurred in Salinas. She also described the incident in Calexico where Arreguin, while sleeping in bed with both children, reached across her to touch son, and simultaneously touched her leg with his penis. From all these facts, the jury could infer that Arreguin intended to have inappropriate sexual contact with both children. Thus, there is substantial evidence to support Arreguin's conviction on count 4.
2. Count 1
Arreguin contends there is insufficient evidence to support his conviction on count 1 (sodomy against son), because there is no evidence that he actually penetrated son's anus with his penis. This contention is unavailing.
Section 286, subdivision (a) states, "Sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however, slight, is sufficient to complete the crime of sodomy."
Here, the record established that Arreguin penetrated son on several occasions. After Arreguin was finished, he ejaculated on son. Although son did not actually see Arreguin's penis each time, Arreguin's suggestion he penetrated him with a finger or other foreign object is unfounded speculation. Further, in his interview with police, while Arreguin initially denied penetrating son, he then stated he could not recall if he did so, and eventually admitted that "maybe" he did so. Indeed, in closing arguments defense counsel told the jury that he believed count 1 was supported by the evidence, and told them "write in guilty" on that count. Substantial evidence thus supports Arreguin's conviction on count 1.
3. Count 2
Arreguin asserts that if the evidence is sufficient to sustain his conviction on the count 1 sodomy charge, the jury could not also convict him of the count 2 sexual penetration with a foreign object charge. We reject this contention.
Section 289, subdivision (k)(3) provides: " 'Unknown object' shall include any foreign object, substance, instrument, or device, or any part of the body, including a penis, when it is not known whether penetration was by a penis or by a foreign object, substance, instrument, or device, or by any other part of the body." (Italics added.)
Thus, as the prosecutor properly argued to the jury, "[Son] doesn't know on every occasion what [Arreguin] put in him. That's why on at least one of those occasions, it is an unknown object which qualifies under count 2. The penis, if it is a penis, qualifies as an unknown object. But more importantly, [son] doesn't have to tell us exactly what it is in order for the defendant to be convicted under this count." The court instructed the jury under CALCRIM No. 1045 on this concept.
Arreguin's assertion he could not be convicted of both sodomy and penetration with a foreign object ignores the fact that the evidence showed he penetrated son on more than one occasion. The fact son did not know for sure on each occasion if he was penetrated by Arreguin's penis provides substantial evidence to support the count 2 conviction in addition to the conviction on count 1.
V. FAILURE TO INSTRUCT ON BATTERY AS LESSER INCLUDED OFFENSE
Arreguin last contends that as to count 1, the court erred by not instructing the jury sua sponte on battery as a lesser included offense to sodomy. This contention is unavailing.
Even in the absence of a formal request, a "trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence." (People v. Blair (2005) 36 Cal.4th 686, 744.) Thus, the court must instruct the jury on all the elements of the charged offenses (People v. Cummings (1993) 4 Cal.4th 1233, 1311), as well as on any lesser included offenses for which there is evidentiary support, i.e., lesser included offenses of a greater offense as to which the evidence may or may not establish all of the elements. (People v. Breverman (1998) 19 Cal.4th 142, 154 [the court must instruct on lesser included offenses supported by the evidence, even over the defendant's objection].) Likewise, the court must give instructions on each theory of a lesser included offense that is supported by the evidence. (Ibid.) The purpose of this rule is to protect a jury from being forced into having to make an "'unwarranted all-or-nothing choice'" that might result in a verdict (whether a conviction or an acquittal) that it otherwise would not have reached. (People v. Hughes (2002) 27 Cal.4th 287, 365; see People v. Woods (1992) 8 Cal.App.4th 1570, 1589.)
Based upon the uncontested testimony of son, there is no substantial evidence to support a battery instruction as a lesser included offense to sodomy. Even though he testified that at least on one occasion he only assumed Arreguin was inserting his penis into his anus, he also testified that he knew that on at least one occasion, it was Arreguin's penis that penetrated him. This is supported by the fact that Arreguin ejaculated on son's anus when he completed his action, and his admission to police that he may have penetrated son. Arreguin's assertion again that it could have been Arreguin's finger or some other foreign object is not supported by any evidence and constitutes mere speculation.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., McINTYRE, J.