Opinion
A128614
07-19-2012
THE PEOPLE, Plaintiff and Respondent, v. JESUS LEONARDO BARRIERE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 050702886)
Jesus Leonardo Barriere (appellant) was convicted, following a jury trial, of 11 counts of forcible lewd and lascivious acts upon a child, one count of lewd acts upon a child under age 14, two counts of oral copulation of a minor under age 14, and one count of soliciting a minor to use a controlled substance. On appeal, appellant contends (1) the trial court improperly denied his Wheeler/Batson motion challenging the prosecutor's peremptory challenge of a prospective juror; (2) the court abused its discretion and violated appellant's constitutional rights when it admitted evidence of prior sexual offenses, pursuant to Evidence Code section 1108 ; (3) the instruction regarding appellant's prior sexual offenses, pursuant to CALCRIM No. 1191, violated his rights to due process and proof beyond a reasonable doubt; (4) the court improperly pressured the jury to reach a verdict when it was deadlocked; (5) the court erred in denying appellant's new trial motion based on the jury's receipt of an unredacted restraining order declaration; (6) the six-year determinate sentence and the Penal Code section 12022.3 enhancement for count six must be stricken; (7) the restitution fine must be reduced to $10,000; and (8) he is entitled to additional presentence credits. We shall remand the matter for resentencing on count six, correction of the improper restitution fine imposed, and recalculation of appellant's presentence credits. We shall otherwise affirm the judgment.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
All further statutory references are to the Evidence Code unless otherwise indicated.
PROCEDURAL BACKGROUND
On May 16, 2007, appellant was charged by first amended information with 11 counts of forcible lewd and lascivious acts upon a child (Pen. Code, § 288, subd. (b)(1)-counts one to ten and count twelve); one count of soliciting a minor to use a controlled substance (Health & Saf. Code, § 11353-count eleven); one count of lewd acts upon a child under age 14 (Pen. Code, § 288, subd. (a)-count thirteen); and two counts of oral copulation of a minor under age 14 (Pen. Code, § 288a, subd. (c)(1)-counts fourteen and fifteen). The information alleged as to count six that appellant had personally used a deadly and dangerous weapon, a knife, in the commission of the offense (Pen. Code, §§ 667.61, subds. (a), (e), 12022.3, subd. (a)). The information further alleged as to counts ten and twelve that appellant personally inflicted great bodily injury (Pen. Code, §§ 667.61, subds. (a), (e), 12022.8), and as to count ten that appellant administered a controlled substance by force (Pen. Code, §§ 667.61, subds. (a), (e), 12022.75).
On December 3, 2009, a jury found appellant guilty of the 15 charged offenses and found true the allegation that he personally used a deadly and dangerous weapon in the commission of count six. The jury failed to make findings on the allegations that appellant personally inflicted great bodily injury in counts ten and twelve or that he administered a controlled substance by force in count ten.
On April 30, 2010, the trial court sentenced appellant to a total term of 99 years to life in state prison.
On May 10, 2010, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Prosecution Case
"Jane Doe" (Jane), who was 17 years old at the time of trial, testified that she had lived all her life with her mother, R.S. Appellant was her father. Her parents had been divorced as long as she could remember. After they divorced, her father married Patricia P. and had three children with her before they eventually separated. While married to Patricia P., appellant also dated Evelyn G., with whom he had a son, "John Doe" (John). Later, appellant had a child with Evelyn H., whom he had met when Jane was 12.
Appellant was a long distance truck driver. He drove a big truck that had a bed right behind the driver and passenger's seats. When Jane was younger, she saw her father about every two weeks, on the weekends. Most of the time when they had visitation, appellant took her with him on trips for his job. Occasionally, other people came with them on trips, but mostly it was just Jane and appellant. When she was between the ages of seven and 12, she also occasionally went to appellant's house in Richmond, where he lived with Patricia P. For visitation, appellant normally picked Jane up on a Saturday and brought her home on a Sunday.
Jane turned seven in January 1999. In the first half of that year, appellant began doing things to her that made her uncomfortable. The first time, appellant pulled his truck over to the side of the road, took her into the back, lay her down on the bed, and lay down on top of her. He started touching her, rubbing her vagina with his hand, first over her clothes and then under them on her skin. While doing this, he told Jane that her body looked like her mother's. He also kissed her on her mouth. This first incident lasted approximately 15 to 20 minutes. After appellant stopped touching her, he said not to tell her mother or she would get taken away and sent to a foster home. Jane believed him and did not tell her mother what had happened because she was scared.
During the first half of the year when Jane was seven, appellant touched her in this way about 20 times, during almost all of their visitations and sometimes more than once per visit. He also put his finger inside her vagina about 10 times. He continued to tell her she had her mother's body and to threaten that she would be sent to a foster home if she told her mother, and would not see her family again. Jane would tell him she wanted to go home, but he would say he would not take her home until she let him touch her.
During the second half of the year that she was seven, Jane continued to see her father every other weekend. Some visits were in appellant's truck and some were at the house he lived in with Patricia P. in Richmond. She did not remember him ever touching her at that house. Appellant continued to touch her in the back of his truck, however, in the same way he had touched her earlier in the year, about 20 more times. During that later time period, he also began to touch her vagina with his penis. He would either take her clothes off or ask her to take them off, would take his own clothes off, and would lie down on top of her. He would then rub the outside of her vagina with his penis. It was not painful. Appellant touched Jane's vagina with his penis 20 to 25 times during the latter half of that year, while also kissing her and touching her with his hand. Jane never tried to run away, though she did try to turn away sometimes. He continued to tell her not to tell her mother what he was doing or she would be sent away from her family to a foster home; he also threatened that her mother could get deported.
In 2000, shortly after Jane turned eight, her grandmother took her to Mexico for her first communion. She was away for several weeks. When she returned, she continued visiting her father every two weeks on the weekend, mostly in his truck. He continued touching her in the same way as the year before, sometimes more than once during a visit.
Then, during the spring after Jane turned eight, appellant took her to a hotel while they were traveling in the truck. It was daytime and, once inside the hotel room, appellant took off her clothes and his own clothes and lay her down on the bed on her back. He then got on top of her and stuck his penis all the way inside her vagina. It was painful and she started bleeding all over the bed. Jane said to stop and tried to squirm away, but appellant slapped her on the inside of her thigh and continued with his penis inside her for a long time while she cried. He eventually stopped. There was blood in the bed and Jane had stomach pains and could barely walk. About 20 minutes later, they left the hotel. Three or four hours later, when they were back in the truck, appellant got on top of her again and stuck his penis inside her again for about 15 or 20 minutes. It hurt and she bled again a little bit. Afterwards, appellant once again threatened her with a foster home and her mother's deportation. After appellant took her home, Jane had a strong cramp in her stomach and her private area was swollen, painful, and burning. She did not tell anyone what had happened because she was still afraid.
After that, appellant had sexual intercourse with Jane during almost every visit. On one occasion in the spring of 2000, while appellant and Jane were in the back of the truck, he told her to take off her clothes, and she said, "No." It was the first time she had directly said no to him. He got angry, and reached over and grabbed a big knife that he kept in his truck. It was about 11 or 12 inches long and one and a half or two inches thick and had a cover on it. Appellant pointed the knife at her and said, "Take off your clothes." She was crying and was so scared that he was going to hurt her that she just did what he said. He put the knife down and started rubbing her vagina; he also put his hand over her mouth while she was crying. He then stuck his penis inside her vagina.
During the rest of the year that Jane was eight, the visitations continued, with appellant having intercourse with her about 30 to 40 times, sometimes more than once during a weekend visit. He also touched her in the other ways he had done before. Other than try to squirm away, Jane never fought back. She never told her mother what was happening, although she would start crying hysterically when her mother said appellant was going to pick her up. She feared him and did not want to see him. She thought about running away when they were at truck stops, but then she would think, "nobody is going to believe you. You know, I'm a little girl. I mean, I was just scared."
In 2001, when Jane was nine, she continued to have the same type of visitations with appellant, mostly in the truck but also at the house appellant shared with Patricia P. He did not touch her inappropriately at the house, but he always did so in the truck. He touched her vagina and had intercourse with her 40 to 50 times that year. He also put his tongue in her vagina for the first time when she was nine. After that, he touched her in this way very rarely.
During the year Jane was nine, appellant was still seeing his girlfriend, Evelyn G. She lived in an apartment in Richmond with her and appellant's son, John Doe, who was probably six years old at that time. Jane went to the apartment with appellant every once in a while. Once that year, Jane was at the apartment with appellant and John during the day while Evelyn G. was at work. Jane was sitting in the living room when appellant told her to go into the bedroom. Appellant followed her into the bedroom, closed the door, and covered the window with a blanket. He then started touching Jane, who was sitting on the bed. He took off both of their clothes, got on top of her, and had intercourse with her on the bed for 20 to 25 minutes. While he was doing this, John tried to open the door to come into the room. Appellant went to the door and told him not to come in. After appellant finished having intercourse with Jane, he told her to go take a shower. After the shower, she put on one of Evelyn G.'s nightgowns. Her father eventually took her home.
In 2002, when Jane was 10, she continued to have visits with appellant approximately every other week. Most of the visits took place in the truck during road trips in which appellant continued to molest her as before, often more than once per visit. That year, he had intercourse with her about 40 to 50 times and orally copulated her a couple of times. She sometimes tried to squirm away, but she had nowhere to run to and no way to defend herself. She thought, "I might as well let him do what he was doing so I can leave [for] home faster." During that period, she once told a cousin that "my father does things to me that are not like father/daughter things." But when her cousin tried to ask about it, Jane changed the subject; she did not want to tell her any more.
The visits and touchings continued for the first half of the year after Jane turned 11. But she stopped seeing appellant for a period of about six months beginning in mid-2003. She still did not tell her mother what appellant had been doing to her. She was just happy he was not coming around anymore and thought she would put it all behind her.
Then, in 2004, when Jane was about to turn 12, appellant came to her home with his new girlfriend, Evelyn H., who was about 15 years old, and their new baby. After that, appellant came to visit often with Evelyn H. and Jane began to spend a lot of time with them. She did not go on long road trips with appellant during this period.
At that time, appellant was no longer living with Patricia P. He lived with roommates in Richmond and, one day, he brought Jane to his house, took her to his bedroom, and had intercourse with her. Another time, near Thanksgiving or Christmas of 2004, Jane was at a nighttime family gathering with appellant, Evelyn H., and Evelyn H.'s family. When Jane left the gathering with appellant, instead of taking her home, he took her in his car to a hotel in El Cerrito. It was a "Super 8," close to the freeway. Appellant went into the lobby to get a room and told Jane to wait in the car. She did not try to run away because she "still had a lot of fear." She was afraid no one would believe her or that appellant might kill her. When appellant came back to the car, he told her to go upstairs with him. They went to a room and Jane sat down on the bed. Appellant pulled out his wallet and took out a tiny Ziploc bag of white powder. Jane figured it was drugs. Appellant used two credit cards to smash the powder and make two or three lines of it on the table. He rolled up a dollar bill and used it to sniff some of the powder. He then told her to sniff a line. At first, she refused. But he said, "Oh, you should do it. I'm gonna take you home tomorrow. It's gonna make you feel better." She then sniffed some of the powder. It tasted sour and nasty.
In 2005, Jane directed a detective to the hotel, to show her where it was located.
Previously, when Jane was about nine, she had seen him put white powder in her drink; she had not felt any effects from it.
After she sniffed the powder, appellant told Jane to take off her clothes, which she did. He took off his clothes and they lay down on the bed. He got on top of her and she remembered him trying to put his penis inside her, but then did not remember anything else until she woke up. When she woke up, she was in the bed and her father was next to her. Her eyes were red and she had a red mark on her neck. They left the hotel and went to Jack in the Box. Appellant bought food, but she felt really sick and nauseated. He then took her home.
In around January 2005, after Jane had turned 13, appellant picked her up in his truck, supposedly to take her to a party. She was upset about going out with him and had told her mother that she did not want to go, but her mother said appellant was already on his way. Instead of going to a party, appellant started driving out of the area, toward Modesto. She was upset. Almost an hour after they left her home, he pulled over to get gas. She knew by then that there was no party. While appellant was out of the truck paying for gas, she got so angry that she kicked the windshield with her foot and cracked it. She was scared of what the consequences would be. When appellant got back to the truck, he was furious and yelled loudly at her. He also took Jane's cell phone away. He then told her to lie down on the bed in the back of the truck and touched her sexually. He eventually took her home.
The touchings after appellant came back into Jane's life—when she was 12 and 13—were not as frequent as when she was younger. The last time appellant touched Jane was on May 4, 2005, when she was 13. She was on a visit with him and he was driving them in a car to Evelyn H.'s house. They were on the freeway and appellant reached over and tried to touch her between her legs. Jane told him to get his hands off of her or she was "was gonna tell." Appellant stopped touching her and acted like nothing had happened. Within a week of that incident, Jane finally told her mother about the molestation.
When Jane was little, she was afraid of appellant and "used to cry a lot." When she was 12 and 13, she became suicidal. "It was like all those years and never telling nobody. It was like heavy on me. So I wanted to kill myself. And just, you know, I thought that was like the only thing that would ever stop it, killing myself." She had problems in school because "I had a lot of hate inside of me and that made me, you know, be in a way rebellious." She was also very rebellious with her mother. She had friends, but had difficulty relating like a normal 13-year-old. She liked to "party," which was her way of getting away from all the problems she had. During the years after appellant started having intercourse with her, Jane also started having physical problems, including urinary tract infections. She did not know if appellant ever wore a condom during intercourse or if anything every came out of his penis.
The day in May 2005 that Jane told her mother about the molestation, she had wanted to go to a party with some friends, and her mother would not take her there. Jane then called her father and asked him to give her a ride. He said no, because he was going to go "clubbing" with Evelyn H. that night. Jane and her mother then got into an argument. Jane ran to her room and "started thinking about everything" and started crying. She felt like there was no escape. "I couldn't take anymore the arguments with my mom, the hatred I had, and, you know, the hate I had towards him, everything that had happened to me. I just—I just wanted to die." Regarding why she would call her father for a ride, Jane testified that the molestation had "slowed down" by then and, at 13, she was protecting herself more. Also, by then, she had gotten numb; "it's like if I was dead inside. You know, he used me up. I was wrecked, you know. I didn't have feelings at that point anymore."
Jane's mother came into her bedroom and said she needed to know what was going on with her, why she was being so rebellious. At that point, Jane told her mother everything. She said the reason she was acting that way was "because your ex-husband that is my father raped me all these years. And I hate him and I had hate towards you because of that. And, you know I hated everything. I hated everybody." Jane was "yelling hysterically." She told her mother about the abuse that day because, with all the rage and hate she had inside, she just exploded.
Jane's mother wanted to go to the police station right away, but, at first, Jane did not want to go. She felt afraid and wanted to "just leave it alone." But her mother insisted. Jane talked to several police officers about what had happened. Jane also noticed what looked like pimples on her "private part" and her mother took her to the doctor right away. The doctor examined her, did some tests, and gave her a diagnosis.
R. S., who was 34 years old at the time of trial, testified that she is the mother of 17-year-old Jane Doe. R. moved to the United States in 1991 and met appellant just after she turned 15. He was over 18 years old at the time and they soon became boyfriend and girlfriend. She lived in Hayward and, one day, appellant took her to his sister's house in Vallejo. Appellant called R.'s father and said that if he did not consent to appellant's marrying R., he would take her to Alaska and her father would never see her again. Appellant kept R. in Vallejo for several days and began having intercourse with her. Five or six weeks later, she found out she was pregnant. They then got married and lived with her parents.
Appellant was verbally and physically abusive toward her when she did not want to have sex. Just after she gave birth to Jane, he kicked her in the stomach. He also used his hands to hurt her and pulled her hair. After Jane was born, there were times when R. did not want to have sex with him and he repeatedly forced her to do so. About a year and a half after they married, R. applied for a restraining order against appellant. She had previously told him she did not want to be with him anymore, but he would get violent and threaten her.
When she filed for a restraining order, R. also filed for a divorce. They were divorced in May 1994, when Jane was about three years old. Appellant was granted weekend visitation with Jane, but initially came to see her every two or three months. When Jane was about four years old, after appellant married Patricia P. and had another child, his visits became more regular. Appellant worked as a truck driver; R. did not know he took Jane for trips in his truck.
When Jane was about seven, appellant started visiting her every weekend or every two weeks. From the time Jane was six or seven until she was 11, he would pick her up either in a car or in a big semi-type truck without a container. Patricia P. no longer came with appellant when he picked up or dropped off Jane, as she had earlier. Most of the time before visits, Jane would cry and say she did not want to go with her father. She also became angry after visits and locked herself in her room. As Jane got older, she had behavioral problems at home and at school. Jane also started having frequent problems with urination after visits with appellant. She said she felt a burning and her stomach hurt. She also felt nauseated a lot of the time. Between the ages of six and 14, R. took Jane to the doctor for these problems more than 30 times. R. also saw a brownish discharge in Jane's underwear about five times.
On the day in 2005 that Jane told R. about the abuse, Jane was furious with her because she did not want Jane to go to a party. Jane locked herself in her room; eventually, R. went and knocked on her door and Jane came out. They argued some more and then Jane returned to her room, slammed the door and yelled that R. did not know what he did to her. R. went into Jane's bedroom and Jane, who was yelling and crying, said she was going to kill herself and that she hated R. She then said that appellant was abusing her and had threatened her. She did not give specific details. This was the first time Jane told R. what had happened. R. immediately took Jane to the police to give a report, and then to her doctor.
John Doe, who was 13 years old at the time of trial, is the son of appellant and Evelyn G. Jane is his half-sister. Until he was in third grade, he lived with his mother in an apartment in Richmond. Appellant visited a couple of times a week. Evelyn G. worked in the evenings. John saw Jane once or twice while he lived in Richmond.
One day while Evelyn G. was at work, appellant brought Jane to the apartment. John was four, five, or six years old. Appellant told John to watch television, and then went into the bedroom with Jane and closed the door. At one point, John tried to go into the bedroom because he was bored, but the door was locked. He went outside to look in through the bedroom window, but it was covered with a blanket. He then watched more television and fell asleep for a while. When Jane and appellant came out of the bedroom, Jane was "kind of pale." She was also wearing John's mother's nightgown. Appellant told her to go take a shower, which she did. John went into the bedroom and lay down on the bed. It felt wet in spots. After her shower, Jane was still wearing the nightgown and she seemed "a little scared." When Evelyn G. got home, appellant and Jane left.
In May 2006, after appellant was arrested, John talked to a woman about what had happened that day in the apartment. Near the end of the interview, the woman asked John if he had ever been touched inappropriately by appellant. He did not tell her the truth because he was embarrassed and was afraid of appellant. In fact, when John was about seven and still living in the apartment in Richmond, appellant made him watch videos of people having sex while Evelyn G. was at work. The videos were kept in a box high up in a kitchen cupboard and they watched them on the living room television. Appellant put blankets over the window beforehand. Watching the movies made John uncomfortable, but he kept watching because he was afraid appellant would hit him if he tried to leave the room. Appellant said he would hit John if he told his mom. The second time they watched the movies, appellant told John "he wanted [him] to copy the movie." John put his mouth on appellant's penis. Appellant said to "act like it was a lollipop." John did what appellant said because he was afraid appellant would hit him if he refused.
Appellant showed John pornographic movies on a few other occasions too. Appellant also continued to make John do things that made him uncomfortable, sometimes in the living room and sometimes in the bedroom. While they lived in Richmond, appellant had John put his mouth on appellant's penis between five and ten times. Appellant also put his penis in John's anus by having John lie facedown with his backside in the air. It hurt when appellant did that and for an hour or two afterwards. Appellant penetrated John 10 or more times while John lived in Richmond. John never told his mother what appellant was doing because appellant had threatened to hurt him if he told anybody. After appellant started molesting him, John noticed bumps on his penis and went to a doctor.
John and his mother moved to another city when John was in the third grade. Although he saw appellant occasionally after the move, appellant did not touch him sexually. This was because Evelyn G.'s sister and her children came to live with them and there was always someone else there when appellant visited.
As John got older, he began to feel confused about his sexuality, unsure whether he liked girls or boys. He went on the computer to look for photos or videos that depicted what appellant had done to him, and he also wrote in his diary. A couple of years before trial, John's mother came home while he was looking at images on the computer. She had also read things he had written in his diary and she confronted him about who had molested him. John eventually admitted that it was appellant. He went back to the Interview Center and told the woman who had interviewed him before about what had happened with appellant. John hated appellant for what he had done to him.
Dr. James Carpenter, a pediatrician with Contra Costa County Health Services, testified as an expert in the areas of child sexual abuse, sexual assault examinations, and interpretation of the results of those examinations. It is "the usual" for a child sexual abuse victim not to report that abuse. Most sexual abuse is never divulged and remains a secret. If it is revealed, it is "usually very delayed after the original onset." When there is a delay in the report of sexual abuse, often the tissues have had a chance to heal and, where mucosal tissue is involved, as with the female vaginal area, healing is rapid and often there is no scar formation. The single most common physical symptom for a child who has been victimized is recurrent abdominal discomfort, sometimes with nausea. Burning with urination could be due to sexual abuse, or from other causes. Early or precocious puberty most often is associated with obesity, but can also result from sexual assault. Most pediatricians and family doctors do not have specialized training in child sexual abuse.
Dr. Carpenter further testified that genital herpes is a viral infection, usually of the genitals, which is transmitted sexually by genital-to-genital contact. It can also be transmitted from a male's penis to another male's anus. An infected woman can also transmit herpes to her child during birth. But that is a very different and severe infection, which does not involve blisters on the genitals and becomes evident within a few weeks after birth. Sexually transmitted diseases have rarely been transferred without direct physical contact. Herpes transmission requires cell-to-cell contact so it is even "less likely to be able to ever . . . be transmitted by an object." He was not sure whether such transmission had ever been documented for herpes. An infected person can have periods when the infection is inactive and it would be possible for someone to have genital-to-genital contact with such a person and not develop the virus.
In August 2005, at the request of the Richmond Police Department, Dr. Carpenter reviewed the medical records of Jane Doe, but did not perform a non-acute sexual assault examination on her. Because she was sexually mature and the last assault would have occurred months earlier, the likelihood of finding any evidence was quite low. He did, however, recommend that Jane get follow-up care for her herpes.
Dr. Carpenter's review of Jane's medical records indicated that Jane had multiple health problems associated with recurring sexual abuse. These problems included multiple episodes of pain with urination without urinary tract infections; multiple episodes of abdominal pain; at least one episode where she had lesions on her labia that at the time were suspected to be yeast; and early development of pubertal changes, including breasts and pubic hair. Jane's early puberty, which began when she was seven and a half, was suspected at the time to be related to her obesity. In December 2000, Jane saw her doctor for itching and bumps on the vaginal area. This could have been an early herpes infection, but was diagnosed as a yeast infection. She also was seen for "spotting" in February 2001. In August 2001, she was seen for pain with urination, vaginal itching, and bumps on the vaginal area, which could have indicated genital herpes. There was also a report of two to three incidents of bloody discharge "like old blood." Throughout these years, from ages seven to ten, the most common reason for Jane's doctor visits was for pain with urination.
Jane had only one documented urinary tract infection, in June 1997.
A report of sexual molestation first appeared in Jane's chart on May 16, 2005, at which time she was tested for a number of sexually transmitted diseases. She tested positive for genital herpes—herpes simplex 2—and the test showed she had had the herpes virus "for a period of time." The test results in conjunction with Jane's medical history were consistent with a child who has been sexually assaulted.
Dr. Carpenter also reviewed the medical records for John Doe. In March 2001, when John was four years old, he saw a doctor for inflammation of the penis and pain during urination. It appeared that the doctor was also concerned that John had genital herpes. On May 11, 2006, John was tested for several sexually transmitted diseases, and tested positive for herpes simplex 2. Dr. Carpenter reviewed the medical records for Evelyn G., which showed that she tested positive for herpes simplex 2 on May 24, 2006.
Evelyn H., who was 20 years old at the time of trial, testified that she met appellant when she was 13, in approximately 2002. She was a runaway and met him at a friend's house. She told him she was 13, and appellant said he was 27. She did not learn he was actually 31 until about a month later. She went with appellant to a Super 8 motel in Richmond, where appellant got a room. On the way there, appellant offered her two or three lines of either cocaine or crystal methamphetamine—she did not recall which—and showed her how to snort the powder using a dollar bill. She then snorted it. In the motel room, appellant gave her more drugs, which she snorted, and they had intercourse.
After that first night, Evelyn H. "pretty much stayed with" appellant, either at the motel or on trips in his truck, from June through September 2002. They continued to snort drugs and have sexual intercourse together during that time period. In September 2002, Evelyn H. decided to go back home to her mother's house, but she and appellant continued to go to the same motel occasionally to have sex. Their relationship continued in 2003, when she was 14, and they continued to go to the motel to have sex. She then found out she was pregnant and gave birth to her and appellant's son the day after she turned 15, in February 2004.
Evelyn H. met Jane Doe in 2004, shortly after she gave birth to her son. She saw Jane approximately every two weeks. In May 2005, at about the time Jane made allegations against appellant, Evelyn H. and appellant moved in together. He was still married to Patricia at that time, but they were separated. Evelyn H. continued to live with appellant until he was arrested in April 2006. Once they started living together, appellant became more controlling and jealous. He would sometimes get angry and become violent, pulling her hair and slapping her. They sometimes argued about sex. If she did not want to have sex, "he just couldn't take no for an answer." He would get violent and push her around until she felt that having sex "was my only way out." He used "mental" force to have sex with her by threatening to hit her or pulling out a big knife he kept in his closet and threatening her with that. He said he would cut her throat. He sometimes pulled her hair or pushed her onto the bed or against the wall. One time he pulled her legs open "really hard" when she said she did not want to have intercourse with him. She never told her family what was happening with appellant because she was ashamed.
Evelyn G., who was 33 years old at the time of trial, testified that she had met appellant when she was 17 years old and had had sexual relations with him within a few weeks of that first meeting, while she was still 17. He was married to R. at that time, and also had a girlfriend, Patricia P. He later married Patricia P. Evelyn G. continued to have a sexual relationship with appellant from ages 17 to 30; she was his mistress.
Evelyn G. became pregnant when she was 19, and gave birth to her and appellant's son, John Doe. She and John lived in Richmond until he was in third grade. Appellant used to come and visit them at their apartment in Richmond; he also stayed overnight at times and once stayed there for three months. Jane Doe visited the apartment on occasion. Evelyn G. often left John home with appellant when she had to work, and she could recall a couple of times when she left both Jane and John at the apartment when she went to work. Once, she got home from work and saw Jane wearing one of her nightgowns and also saw that Jane's hair was wet like she had recently bathed. Evelyn G. was alarmed because she did not understand why Jane would be wearing her clothes and why she had taken a shower at Evelyn G.'s home.
Evelyn G. testified that she had kept adult movies on a high shelf in a kitchen cupboard in her apartment in Richmond. She sometimes watched the movies with appellant. When Evelyn G. was younger, she noticed little clusters of bumps on appellant's penis. Appellant told her they were heat blisters.
Just before John Doe turned five, he had problems where his penis would become enlarged and inflamed. Evelyn G. took him to the doctor, who gave her a diagnosis, but did not explain how John had gotten the condition. After appellant was arrested, she got herself and John tested for that condition.
After appellant was arrested, Evelyn G. asked John if he had been molested. He initially denied it. She found his diary, in which he had written something about being addicted to porn, which concerned her. There was also mention of a sexual confusion between girls and boys. She then checked their computer and found images of forced male sex and male incest. That night, she asked John if he had been molested and he disclosed that appellant had molested him. The next morning, she contacted the District Attorney's office.
Looking back, Evelyn G. recalled that John was scared to be left alone with appellant. Once, when appellant knocked on the door, John begged her not to open the door and hid under the table. On cross-examination, Evelyn G. acknowledged that she and appellant sometimes got angry at each other and argued, and that appellant had a temper that he sometimes displayed in front of John.
Defense Case
Patricia P. testified that she met appellant at a family party when she was 18 and still in high school. They married in May 1994 and lived together for nine years. They had three children together—Luis B., who was born in December 1994 and twins who were born in 2000. While they were married, appellant had a relationship with Evelyn G., with whom he had a child, John Doe. Patricia and appellant stopped living together in 2003, although they remained married.
Patricia knew Jane Doe even before she and appellant married. She had a really good relationship with Jane, who was "almost like a child" to her. She spent every other weekend with Jane before appellant became a truck driver. After that, appellant would bring Jane to spend time with Patricia and Luis when he could. Appellant became a truck driver when Jane was about seven. His work schedule was not regular and he would be on the road anywhere from a couple of hours to days. Once he was a truck driver, Patricia never observed appellant take Jane for a truck trip. A man named Julio went on all long-haul trips with appellant as a co-driver.
Patricia never saw any inappropriate sexual behavior between Jane and appellant. Jane loved appellant and wanted to visit their home all the time. When she got older, Jane wanted to come live with appellant. Patricia never saw any blisters on appellant's penis and Patricia never had any blisters or warts on her genitalia while she was married to appellant.
Patricia testified on cross-examination that appellant was never violent with her and never threatened her until just before they separated in 2003, at which time they had an altercation. Appellant did not want to give her a divorce and he said he had a machete in his car and she "could regret it" if she left him. In 2003, Patricia obtained a restraining order against appellant. She initially testified that all of the statements in the restraining order declaration were true, but then said she had lied when she stated appellant had hit her. But she acknowledged that she had told the truth when she stated that he had broken her car's windshield and part of the interior; that he threatened to pull out a knife and take her older child, Luis, to another country; and that if she did not do what he wanted, " 'he would pull out a knife, machete type.' " He also threatened her family members. Once, when she confronted him about using drugs, he got upset and told her to " '[s]hut up or else.' " She denied the truth of many statements that she had written in the restraining order request, including that appellant " 'wanted to force me to have sex with him,' " that " 'he would hit me with a beer bottle and make a scene and wake up the baby,' " that " 'there's always constant threats to hit me,' " and that he grabbed her "real hard" by her hands and legs and bruised her. She did acknowledge previously telling the prosecutor that she had "a really hard life" with appellant and that he was hardly ever there.
Luis B., who was 14 years old at the time of appellant's trial, testified that appellant is his father. Appellant lived with Luis, his siblings, and his mother until Luis was nine or ten. While appellant lived with them, Luis saw John Doe once a week and saw Jane Doe several times a week. Jane wanted to come to their house; she would call appellant and they would pick her up. When Luis was eight or nine, he went on day trips in appellant's truck with John and Jane. After appellant moved out, when Luis was about 11 and Jane was 13 or 14, he saw Jane every few weeks. Appellant was dating Evelyn H., and Luis saw Jane and appellant argue several times. Jane and Evelyn H. did not get along, and Jane and appellant argued about him spending too much time with Evelyn H. and not enough time with Jane and John. Jane never acted like she was afraid of appellant and Luis never saw appellant do anything inappropriate to Jane. Appellant never did anything inappropriate to Luis.
Appellant, who was 38 years old at the time of trial, testified that, a few months after they had met, R. called him, said she did not want to be at her house anymore, and asked him to take her to his sister's house. R.'s father threatened to put appellant in jail because she was a minor, but R. threatened to kill herself and her father agreed to let them get married. Appellant was 19 and she was 15 when they married. Their marriage ended after about nine months when R. cheated on appellant with his friend. Appellant acknowledged that he got very angry and violent with her during their arguments.
Appellant married Patricia P. in May 1994, and had three children with her, including Luis. Appellant cheated on her with Evelyn G., which caused problems in their marriage. He had a child with Evelyn G., John Doe, who is one year younger than Luis. Appellant also had a relationship with a woman named Suzie while he was married to Patricia, which caused problems with Evelyn G. Appellant acknowledged that he had threatened Patricia by saying, "[y]ou regret it if you leave me" and threatening to take their son to El Salvador. He was not home much during their marriage. Appellant also acknowledged that he sometimes became violent with Evelyn G. after she got violent with him. But he testified that he had never hit a woman.
Appellant met Evelyn H. in 2002 at a party. She told him she was 18 years old and he believed her. He took her to a Super 8 motel. He was planning to go to Utah, and she said she wanted to come with him. He therefore took her with him in his truck, and they started their relationship. After they had been together for several months, Evelyn H. told appellant her real age, 13, and that she was a runaway. Appellant was still living with Patricia when he met Evelyn H., but they split up and he moved in with Evelyn H. after their son was born. They lived together for a couple of months, until his arrest.
Appellant initially had visits with Jane every other week. Once he became a truck driver, he picked her up whenever he had a chance and brought her to his home with Patricia. Sometimes the whole family would go to the mall, the movies, parks, or lakes. Jane went on a few trips in the truck with appellant and other family members, but never overnight. He also would sometimes pick her up or drop her off in the truck on his way home from or to a job. When Luis was five or six, appellant became a long-haul driver. When he was on long-haul jobs, he could not arrange regular visits with Jane, where he would pick her up on a Friday and return her home on a Sunday, because his schedule was unpredictable. When he went on interstate trucking jobs, he took a co-driver with him.
Jane and Evelyn H. started having difficulties in their relationship around the time appellant's son with Evelyn H. was born. Jane complained about appellant spending all of his time with Evelyn H., rather than with his kids, and always bringing her on visits. Jane also would call and ask appellant to give her rides to friends' houses. Jane said she wanted to live with appellant. At one point, R. said she wanted to send Jane to a boot camp because of misbehavior at home and school. Appellant initially sided with Jane, but ultimately agreed with R. Jane then got very angry with him. Appellant testified that he never touched either Jane or John in a sexual way. He also denied ever taking Jane to a motel and giving her drugs.
DISCUSSION
I. Denial of Appellant's Wheeler/Batson Motion
Appellant contends the trial court violated his state and federal constitutional rights when it denied his Wheeler/Batson motion.
A. Trial Court Background
During voir dire, prospective Juror No. 116 stated that she was "a site supervisor at child care," where she took care of 260 children and supervised 35 teachers. She said she did "have an experience with report to CPS [Child Protective Services], but it's just work, no personal [sic]." In response to the prosecutor's questioning, prospective Juror No. 116 confirmed that since she worked in child development, she was a mandated reporter with CPS. She had made a report to CPS "a couple times," including in a case of suspected sexual molestation. A woman whose daughter said her stepfather had touched her sexually had asked for prospective Juror No. 116's help and she had helped the woman "to do the report." She did not believe this experience would affect her ability to be fair in this case "because that's my job and I understand."
Prospective Juror No. 116 told defense counsel that, in her eight or nine years of experience at the child care center, she had worked with children between the ages of two and 12 on a daily basis. When counsel asked, "Are you open to the idea that children sometimes make things up?" she responded: "A lot of times. They have a lot of imagination." When counsel then asked, "Are you also open to the idea that children can be manipulated by . . . [¶] . . . [¶] . . . others or adults?" she responded: "A lot of times too." She added: "We see a lot of case every day, yeah." She also confirmed that she was open to the idea that an allegation of child abuse may be false and agreed that there are times when people are accused of things they did not do. Prospective Juror No. 116 did not think the fact that she had helped the woman report an incident with the stepfather would interfere with how she looked at the evidence in this case because she was not very involved with that case, had not spoken to the child, and had only helped the mother call CPS.
Finally, prospective Juror No. 116 said that she speaks Spanish and that if a translator made a mistake in translation that affected appellant, she would "have to be honest." She later affirmed, in response to a question from the court, that she could follow the instruction that she must abide by the interpreter's interpretation "unless something were drastically wrong," in which case she could bring it to the attention of the court.
The prosecutor exercised a peremptory challenge against prospective Juror No. 116.
Thereafter, defense counsel put on the record that she had brought a "Wheeler/Batson Johnson[] motion [sic]" regarding the prosecutor's challenge of prospective Juror No. 116. Counsel stated: "She was a—or is a child care worker in Marin County [at a child care center]. She has children and grandchildren. And she even assisted somebody with a call to CPS who had a complaint about child abuse. I believe she would have—and she's of Hispanic [descent]. My client, Jesus Barriere, is Hispanic.
Johnson v. California (2005) 545 U.S. 162 (Johnson).
"I believe that she would have been a fine juror. And I am concerned about the lack of diversity in this jury pool, this panel. And the basis of my motion is that I don't believe there's any legitimate reason for the excusal of [prospective Juror No. 116] other than a race-based reason."
The court asked the prosecutor to address the prima facie case first, and the prosecutor said: "Okay. In terms of just the prima facie case and [defense counsel's] statement that this jury lacks diversity is wow. I'm assuming she misspoke. I would go through: Juror No. 2 is Ms. [name]. And I—she could very easily be Hispanic, I'm not sure but she is definitely of mixed race. Mr. [name] is Asian. Ms. [name] is Hispanic. Ms. [name] is Hispanic slash Filipino. And let's see. I think those are the seated ones so far." The prosecutor pointed to four other minority prospective jurors in seats 13 to 21. The prosecutor concluded: "So I don't believe there's been a prima facie case. In fact, I would point out the People have passed with [three Hispanic or mixed Hispanic jurors] in the actual seated jury."
The court noted that there were two additional prospective jurors in seats 13 to 21 who could be Hispanic, and stated: "It appears to the Court to be a very mixed panel." The court noted that three Hispanic prospective jurors had been excused for cause, and concluded: "And I'm not finding at this time based on the fact that we have seated jurors who are Hispanic, the prosecutor has passed on those, that a prima facie case has been shown. But I understand the need for the record and the motion at this time is denied."
B. Legal Analysis
"Both the federal and state Constitutions prohibit an advocate's use of peremptory challenges to exclude prospective jurors based on race. [Citations.] Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] . . . . [¶] The Batson three-step inquiry is well established. First, the trial court must determine whether the defendant has made a prima facie case showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Citation.] The three-step procedure also applies to state constitutional claims. [Citations.]" (People v. Lenix (2008) 44 Cal.4th 602, 612-613 (Lenix).)
Here, the first step—whether appellant made a prima facie case of discrimination—is the only part of the inquiry at issue. "In this first stage of any Wheeler/Batson inquiry, the defendant must show that ' "the totality of the relevant facts gives rise to an inference of discriminatory purpose." ' [Citation.]" (People v. Garcia (2011) 52 Cal.4th 706, 746 (Garcia), quoting Johnson, supra, 545 U.S. at p. 168.) In Johnson, the United States Supreme Court clarified that the prima facie burden involves "producing evidence sufficient to permit the trial judge to draw an inference" of discrimination. (Johnson, at p. 170.)
"Review of a trial court's denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions." (Lenix, supra, 44 Cal.4th at p. 613.)
In the present case, the trial court concluded that the defense had not made a prima facie case of discrimination based on the prosecutor's peremptory challenge of prospective Juror No. 116. As did the prosecutor, the court focused on the diverse makeup of the jury panel and the prosecutor's failure to challenge several other Hispanic jurors. Defense counsel did not dispute the court's factual findings at the time she brought the motion; nor does appellant dispute them now on appeal. Rather, he now argues that the trial court's ruling was improper because he was not required to show that the prosecution had engaged in a pattern of discriminatory strikes to establish a prima facie case, but only that this one challenge was improperly based on race. (See Snyder v. Louisiana (2008) 552 U.S. 472, 478 [" '[T]he Constitution forbids striking even a single prospective juror for a discriminatory purpose' "]; People v. Avila (2006) 38 Cal.4th 491, 549 [same].)
Respondent counters that the court properly found no prima facie case had been made because, first, the prospective juror's race was the sole ground given by defense counsel when it made the motion and, second, it was appropriate for the court to consider the prosecutor's failure to challenge other Hispanic prospective jurors as part of the totality of the relevant facts it had to consider.
We agree with respondent that the prosecutor's failure to challenge other prospective jurors who were Hispanic is significant and supports the trial court's ruling. "While no prospective juror may be struck on improper grounds, we have found it ' "impossible," ' as a practical matter, to draw the requisite inference where only a few members of a cognizable group have been excused and no indelible pattern of discrimination appears. [Citations.] . . . [¶] . . . [¶] . . . Indeed, ultimate inclusion on the jury of members of the group allegedly targeted by discrimination indicates ' "good faith" ' in the use of peremptory challenges, and may show under all the circumstances that no Wheeler/Batson violation has occurred. [Citation.]" (Garcia, supra, 52 Cal.4th at pp. 747-748; see also Lenix, supra, 44 Cal.4th at p. 629 ["prosecutor's acceptance of the panel containing a Black juror strongly suggests that race was not a motive in his challenge of" another Black prospective juror]; People v. Cornwell (2005) 37 Cal.4th 50, 69-70, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 ["The circumstance that the prosecutor challenged one out of two African-American prospective jurors does not support an inference of bias, particularly in view of the circumstance that another African-American juror had been passed repeatedly by the prosecutor from the beginning of voir dire and ultimately served on the jury"].) Thus, since the prospective juror's race was the sole ground given by defense counsel as supporting its motion, the court appropriately considered the prosecutor's failure to challenge other Hispanic prospective jurors in considering whether appellant had made a prima facie showing of discrimination.
Furthermore, while appellant points out that prospective Juror No. 116 was of the same race as appellant, he fails to note that both the victim and several other prosecution witnesses were also Hispanic, which arguably would make a Hispanic juror more desirable for the prosecution. (See Hernandez v. New York (1991) 500 U.S. 352, 369-370 [finding that trial court could credit prosecutor's race-neutral explanation for challenge to Latino jurors where "the ethnicity of the victims and prosecution witnesses tended to undercut any motive to exclude Latinos from the jury"]; cf. People v. Taylor (2010) 48 Cal.4th 574, 643 [whether victim and majority of seated jurors are members of same group is some evidence permitting an inference of discriminatory excusal].)
In addition, even assuming the court should have determined, based on counsel's statement that prospective Juror No. 116 "would have been a fine juror," whether there was additional evidence in the record from which it could draw an inference of discrimination (Johnson, supra, 545 U.S. at p. 170), our independent review of the record permits no such inference. (Cf. Garcia, supra, 52 Cal.4th at p. 747 [where it is not clear if trial court used correct standard in determining if prima facie case was made, we "independently decide whether the record permits an inference that the prosecutor excused jurors on prohibited discriminatory grounds"].) The record not only does not contain anything that would permit an inference of discrimination; it plainly shows race-neutral reasons for the challenge of prospective Juror No. 116. (See Garcia, at p. 748; People v. Taylor, supra, 48 Cal.4th at p. 644.)
In response to defense counsel's voir dire questioning, prospective Juror No. 116, a child-care site supervisor, agreed that children make things up "[a] lot of times" and that they have "a lot of imagination." She further agreed that children can be manipulated "[a] lot of times too. We see a lot of case [sic] every day, yeah." Contrary to appellant's assertion that there was nothing objectionable about prospective Juror No. 116 for the prosecution, these beliefs, in a case in which the credibility of Jane Doe was at issue, provided reasonable, race-neutral grounds for the prosecutor's peremptory challenge.
Prospective Juror No. 116, who spoke Spanish, also initially indicated that if a court interpreter made a mistake in translation that she believed affected appellant, she would "have to be honest."
In sum, based on the trial court's findings and our independent review of the voir dire record, we conclude that substantial evidence supports the court's ruling that appellant failed to make a prima facie case of purposeful discrimination with respect to the prosecutor's challenge of prospective Juror No. 116. (Lenix, supra, 44 Cal.4th at p. 613.)
II. Admission of Evidence of Prior Sexual Offenses
Appellant contends the trial court abused its discretion and violated his constitutional rights when it admitted evidence of prior sexual offenses, pursuant to section 1108.
A. Trial Court Background
The prosecutor moved to introduce evidence of appellant's prior sexual offenses against John Doe, Evelyn G., Evelyn H., R. S., and Patricia P., pursuant to sections 1108 and 1101, subdivision (b). Appellant moved to exclude this evidence.
The trial court ultimately ruled on the motions, as follows: "The [section] 1108 analysis is also subject to the [section] 352 analysis where the Court has to make a determination whether the information will be more probative or whether or not the admission would be so prejudicial as to outweigh the probative effect.
"The Court is not going to allow Evelyn G. The Court is not going to allow Patricia P. to testify.
"The Court will allow John Doe, Evelyn H., and R. S. based on [section] 1108 and the determination by this Court that under [section] 352 the information as to those three witnesses is more probative than prejudicial." The court also excluded evidence that R. had been diagnosed with genital herpes, finding it more prejudicial than probative under section 352. It indicated it would permit evidence of "her condition but not the diagnosis of her condition."
The court did not expressly rule on the section 1101 motion, but later stated that that motion had been decided. The court also later instructed the jury, without objection, that evidence of uncharged offenses could be considered on the issue of intent to commit the charged offenses.
B. Legal Analysis
Section 1108, subdivision (a), provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."
In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the California Supreme Court found that section 1108, which permits introduction of propensity evidence in cases alleging the commission of sexual offenses, does not violate a defendant's due process rights. While acknowledging the general rule against admitting such evidence due to its great potential to unduly prejudice the defendant, the court held that, "in light of the substantial protections afforded to defendants in all cases to which section 1108 applies, we see no undue unfairness in its limited exception to the historical rule against propensity evidence." (Id. at p. 915.)
The "substantial protections" to which the Falsetta court referred consist of the requirement that the court "engage in a careful weighing process under section 352.[] Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]" (Falsetta, supra, 21 Cal.4th at p. 917; accord, People v. Harris (1998) 60 Cal.App.4th 727, 737-742; cf. People v. Loy (2011) 52 Cal.4th 46, 63 (Loy) [concluding that, even if defendant's claim was true that prior sex offenses " 'bore no similarity to' " the crime for which defendant was on trial, "this circumstance, although relevant to the trial court's exercise of discretion, is not dispositive"].)
Section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
The Falsetta court concluded that "the trial court's discretion to exclude propensity evidence under section 352 saves section 1108 from defendant's due process challenge. . . . This [section 352] determination is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.] With this check upon the admission of evidence of uncharged sex offenses in prosecutions for sex crimes, we find that . . . section 1108 does not violate the due process clause.' [Citation.]" (Falsetta, supra, 21 Cal.4th at pp. 917-918, italics omitted.)
Recently, in Loy, supra, 52 Cal.4th 46, 62, our Supreme Court affirmed section 1108's constitutionality. In so doing, the Court explained the value of this evidence: "Evidence of previous criminal history inevitably has some prejudicial effect. But under section 1108, this circumstance alone is no reason to exclude it. '[S]ection 1108 affects the practical operation of [Evidence Code] section 352 balancing " 'because admission and consideration of evidence of other sexual offenses to show character or disposition would be no longer treated as intrinsically prejudicial or impermissible. Hence, evidence offered under [section] 1108 could not be excluded on the basis of [section] 352 unless "the probability that its admission will . . . create substantial danger of undue prejudice" . . . substantially outweighed its probative value concerning the defendant's disposition to commit the sexual offense or offenses with which he is charged and other matters relevant to the determination of the charge. As with other forms of relevant evidence that are not subject to any exclusionary principle, the presumption will be in favor of admission.' " (Historical Note, 29B pt. 3, West's Ann. Evid. Code [(1998 pocket supp.)] foll. § 1108, p. 31.)' [Citation,] italics added.)" (Loy, at p. 62.)
In People v. Johnson (2010) 185 Cal.App.4th 520, 532, footnote 9, a panel of this Division further discussed the particularly probative nature of prior sexual offense evidence in sex offense prosecutions: "The legislative history of section 1108 suggests an underlying psychological abnormality that makes such evidence especially probative: 'The propensity to commit sexual offenses is not a common attribute among the general public. Therefore, evidence that a particular defendant has such a propensity is especially probative and should be considered by the trier of fact when determining the credibility of a victim's testimony.' (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 882 (1995-1996 Reg. Sess.) as amended July 18, 1995, p. 8.) Another legislative analysis noted, ' "In child molestation actions a history of similar acts tends to be exceptionally probative because it shows an unusual disposition of the defendant—a sexual or sado-sexual interest in children—that simply does not exist in ordinary people." ' (Sen. Com. on Crim. Proc., Analysis of Assem. Bill No. 882 (1995-1996 Reg. Sess.) as amended May 15, 1995, p. 6.)"
Here, appellant first argues that section 1108 is unconstitutional, although he acknowledges that the California Supreme Court upheld section 1108 against constitutional challenges in Falsetta, supra, 21 Cal.4th 903, 915 and Loy, supra, 52 Cal.4th 46, 62. Assuming this claim is not forfeited due to appellant's failure to object on this ground in the trial court (see, e.g., People v. Kennedy (2005) 36 Cal.4th 595, 612, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459), it is nonetheless without merit. As appellant acknowledges, we are bound by our Supreme Court's holdings in Falsetta and Loy that section 1108 is constitutional. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant claims that section 1108 also violates equal protection and that the appellate courts that have found otherwise were wrong. (See People v. Brown (2011) 192 Cal.App.4th 1222, 1233, fn. 14, and cases cited therein; see also Falsetta, supra, 21 Cal.4th at pp. 918-919 [citing with approval, People v. Fitch (1997) 55 Cal.App.4th 172, 184, which held that section 1008 does not violate equal protection].) Again, assuming this issue is not forfeited (see People v. Kennedy, supra, 36 Cal.4th at p. 612), we agree with the appellate courts that have found section 1108 constitutional and will not address appellant's conclusory statement on this point.
Appellant also argues that the court should have excluded evidence of appellant's prior sexual offenses under section 352. According to appellant, evidence related to the three other victims—John Doe, R. S., and Evelyn H.—was unduly prejudicial and, in particular, John Doe's testimony was inflammatory. He further asserts that the testimony of R. and Evelyn H. "went beyond evidence relating to prior sex offenses and ranged so broadly that it became an indictment of appellant's character as a husband and a human being. The jury learned not only that appellant had sex with them when they were young and regularly forced them to have sex, but that he was an abductor, a wife-beater, a drug addict, and a cheater who could not hold down a job."
First, we do not believe the prior sexual offense evidence was unduly prejudicial. Appellant's defense at trial was that Jane made up her allegations because she was angry with him. Given that all of the offenses took place in private, the testimony of John Doe, R., and Evelyn H. was relevant to determining Jane and appellant's credibility. (See Falsetta, supra, 21 Cal.4th at pp. 911-912 [observing that enactment of section 1108, to permit admission of propensity evidence in sex offense cases, was based on Legislature's determination that " 'the need for this evidence is "critical" given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial' "]; see also Loy, supra, 52 Cal.4th at p. 61 ["The Legislature has determined that this evidence is ' "particularly probative" ' in sex cases"].) The trial court excluded prior sexual offense evidence as to Evelyn G. and Patricia P., and admitted the prior sexual offense evidence only as to three of the alleged victims whose experiences bore similarities to Jane's and were therefore extremely probative regarding what actually took place with Jane. This was not an abuse of discretion. (See Falsetta, at p. 912.)
Appellant especially focuses on John's testimony that appellant forced him to watch pornography, to orally copulate appellant, and to submit to sodomy 10 or more times, starting when he was a very young child. Appellant describes this evidence as "beyond inflammatory." He also asserts that the jury would have been inclined to punish appellant for his acts against John. While John's testimony was plainly disturbing, it certainly was no more inflammatory than Jane's lengthy testimony that appellant began molesting her repeatedly when she was seven years old; that he had intercourse with her for the first time when she was eight years old, causing extensive bleeding and such pain that she could barely walk; that he raped her more than 100 times between the ages of eight and 11; and that, the one time she tried to refuse, he threatened her with a knife. The court carefully weighed the probative value of this evidence against the danger of undue prejudice, and there is no indication in the record that the jury in this case punished appellant for the prior offenses against John or any of the other victims. (See People v. Hernandez (2011) 200 Cal.App.4th 953, 969.)
Second, the evidence regarding appellant's actions towards R. and Evelyn H. was probative of appellant's propensity to force minors to engage in sexual acts with him, by use of threats, force, and/or giving drugs. Jane testified that appellant repeatedly forced her to have sexual intercourse and that he ensured her submission and silence by threatening to have her sent to a foster home and to have her mother deported. In addition, she testified that, on the sole occasion she refused to take off her clothes, he got angry and threatened her with an extremely large knife. Jane also testified that appellant gave her drugs at least once before having intercourse with her. Evidence that appellant behaved similarly with two other minors was extremely probative of what took place with Jane.
To the extent appellant is complaining that other nonsexual acts against R. or Evelyn H. should not have been admitted, he did not object to the evidence on any other ground in the trial court and has therefore forfeited any such claim on appeal. (See People v. Kennedy, supra, 36 Cal.4th at p. 612.) We also note that the prior sexual offense evidence demonstrating appellant's violent and threatening behavior related to the charges of forcible sexual acts against a minor.
Finally, the jury was instructed, pursuant to CALCRIM No. 1191, to consider the evidence of the uncharged crimes only for the purpose of showing that appellant "was disposed or inclined to commit sexual offenses" and that its conclusion that appellant committed the uncharged offenses was "only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged offenses." We presume the jurors understood and followed this instruction. (See People v. Jones (2011) 51 Cal.4th 346, 371; People v. Hernandez, supra, 200 Cal.App.4th at p. 969.)
The court did not abuse its discretion when it concluded that the probative value of the prior sexual offense evidence outweighed its prejudicial effect. (See Falsetta, supra, 21 Cal.4th at pp. 917-918.)
Because we have concluded that it was properly admitted to show propensity under section 1108, we need not decide whether the prior sexual offense evidence was admissible to show intent under section 1101, subdivision (b). (See Loy, supra, 52 Cal.4th at p. 63 [" 'In enacting Evidence Code section 1108, the Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of Evidence Code section 1101' "].)
III. CALCRIM No. 1191
Appellant contends the trial court's instruction—CALCRIM No. 1191—regarding his prior sexual offenses, violated his constitutional rights to due process and proof beyond a reasonable doubt "because it allowed the jury to infer appellant's guilt of the charged offenses from uncharged offenses found true only by a preponderance of the evidence. That the instruction also told the jury that proof of the uncharged offenses alone was not sufficient to prove the charged offenses did not save the instruction because it left the jury with contradictory instructions."
The jury was instructed with CALCRIM No. 1191, as follows: "The People presented evidence that the defendant committed the crimes of forcible lewd act upon a child and rape by force, fear or threats that were not charged in this case. These crimes are defined for you in these instructions.
"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
"If the People have not met this burden of proof, you must disregard this evidence entirely.
"If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit the offenses, as charged here. If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged offenses. The People must still prove each charge and allegation beyond a reasonable doubt."
Appellant acknowledges that the California Supreme Court rejected a similar argument relating to the CALJIC version of this instruction. (See People v. Reliford (2003) 29 Cal.4th 1007, 1013 (Reliford) [addressing CALJIC No. 2.50.01]; see also People v. Schnabel (2007) 150 Cal.App.4th 83, 87 [CALCRIM No. 1191 is similar in all material respects to instruction considered in Reliford].) As the Reliford court stated, viewing the instructions as a whole, including the requirement that the charged offenses be proved beyond a reasonable doubt, "[n]o reasonable juror would believe those requirements could be satisfied solely by proof of uncharged offenses." (Reliford, at pp. 1013-1014.)
Appellant further recognizes that we are bound by Reliford. (See Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) Appellant's challenge to CALCRIM No. 1191 cannot succeed.
IV. Pressure on the Jury to Reach a Verdict
Appellant contends the trial court improperly pressured the jury to reach a verdict when it was deadlocked.
A. Trial Court Background
On November 16, 2009, at 4:45 p.m., the jury began its deliberations and was excused 10 minutes later. The jury again deliberated on November 17, 19, and 20. On the afternoon of Friday, November 20, the judge received a note from Juror No. 122, in which she asked to be removed from the case because "[t]here is more than one other juror who is using personal expertise and news info against the direction provided by the court. I can not be a part of this unethical behavior." A few minutes later, the court received a note from the jury asking what to do if it was "hung." Judge John W. Kennedy, supervising jury deliberations that day on behalf of the trial court (Judge Theresa J. Canepa), called in Juror No. 122 to address the issue she had raised. She stated that one of the other jurors, who said she was a psychologist for rape victims, was using her professional expertise in deciding the case and also had been stopped by the rest of the jury from discussing a news article. Juror No.122 said there was another juror similarly using her apparent medical expertise to decide the case. She also saw the two jurors discussing the case outside the deliberation room.
On Monday, November 23, with the stipulation of both parties, the trial court (Judge Canepa) excused Juror Nos. 34 and 36, based on the comments of Juror No. 122, and replaced them with two alternates. The court then instructed the jury pursuant to CALCRIM No. 3575 to "set aside and disregard all past deliberations and begin your deliberations all over again." The jury began its deliberations anew that same morning.
The jury continued its deliberations on November 24 and then, on the morning of November 25, the court received a note from the jury indicating that it was "not able to reach an agreement as to any count." The court instructed the jury with an instruction taken nearly verbatim from People v. Moore (2002) 96 Cal.App.4th 1105, 1118-1119 (Moore): "It has been my experience on more than one occasion that a jury that initially reported it was unable to reach a verdict was ultimately able to arrive at a verdict.
The court and the parties referred to the instruction as an Allen instruction, in reference to Allen v. United States (1896) 164 U.S. 492.
"To assist you in your further deliberations, I'm going to give you the following instructions:
"Your goal as jurors should be to reach a fair and impartial verdict if you are able to do so based solely on the evidence presented and without regard for the consequences of your verdict, regardless of how long it takes to do so.
"It is your duty as jurors to carefully consider, weigh, and evaluate all of the evidence presented at the trial, to discuss your views regarding the evidence, and to listen to and consider the views of your fellow jurors.
"In the course of your further deliberations, you should not hesitate to reexamine your own views or to request your fellow jurors to reexamine theirs [sic]. You should not hesitate to change a view you once held if you are convinced it is wrong or to suggest that other jurors change their views if you are convinced they are wrong.
"Fair and effective jury deliberations require a frank and forthright exchange of views.
"As I previously instructed you, each of you must decide the case for yourself and should do so only after a full and complete consideration of all of the evidence with your fellow jurors. It is your duty as jurors to deliberate with the goal of arriving at a verdict on the charges if you can do so without violence to your individual judgment.
"Both the People and the defendant are entitled to the individual judgment of each juror.
"As I previously instructed you, you have the absolute discretion to conduct your deliberations in any way you deem appropriate. If I may suggest, since you have not been able to arrive at verdicts using the methods that you have chosen, that you consider to change the methods you have been following, at least temporarily, and try new methods.
"For example, you may wish to consider having different jurors lead the discussions for a period of time, or you may wish to experiment with reverse role playing by having those on one side of an issue present and argue the other side's position and vice versa. This might enable you to better understand the other's positions.
"By suggesting you should consider changes in your methods of deliberations, I want to stress that I am not dictating or instructing you as to how to conduct your deliberations. I am suggesting you may find it productive to do so—whatever is necessary to ensure each juror has a full and fair opportunity to express his or her views and consider and understand the views of the other jurors.
"I also suggest that you reread the instructions the Court has given you. These instructions pertain to your duties as jurors and make recommendations on how you should deliberate.
"The integrity of a trial requires that jurors at all times during their deliberations conduct themselves as required by the instructions. The instructions I have given you define the duties of a juror.
"The decision the jury renders must be based on the facts and on the law. You must determine what facts have been proved from the evidence received in the trial and not from any other source. A fact, as I've told you before, is something proved by the evidence or by stipulation.
"Second, you must accept [sic] the law as I state it to you to the facts as you determine them and in this way arrive at your verdicts.
"You must accept and follow the law as I state it to you regardless of whether you agree with it.
"If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicted with my instructions on the law, you must follow my instructions.
"The instructions I have given you define the jury's duty to deliberate. The decisions you make in this case must be based on the evidence received in the trial and the instructions given by the Court. These are the matters this instruction requires you to discuss for the purpose of reaching verdicts.
"You should keep this instruction in mind when considering the additional instructions, comments, and suggestions I am now giving you.
"I sincerely hope that my comments and suggestions may be of some assistance to you.
"I am asking that you continue deliberations at this time. If you have other questions, concerns, requests, or any communications you desire to report to me, please put those in writing on the forms we have given you.
"We will provide any additional readback of testimony or clarification that you request.
"At this time I'm sending you back into the jury deliberation room. Please continue your deliberations."
After the jury left the courtroom, defense counsel put her objections to the additional instruction on the record, stating that the instruction was coercive and that she had objected to the instruction on state and federal due process grounds. The court responded to counsel's objections, stating: "The two alternates that were substituted in were not available until approximately 11:00 o'clock Monday morning. So they did not start deliberations anew from square one until approximately that time. They did take a lunch break thereafter.
"So I would say theoretically it's—for purposes of the record, they deliberated maybe a half a day on Monday with the two new jurors.
"It is now Wednesday morning. And we received this note at 10:33 according to our foreperson. So I am not satisfied that they have deliberated a sufficient amount of time considering the length of this trial, the fact that jury voir dire alone took six days and that these two new jurors have only recently substituted in."
The court also noted that the second day of deliberations did not begin until after 10:00 a.m., due to a juror's medical appointment.
On that same afternoon, the court announced to the parties and the jury that Juror No. 159 had a medical emergency and that the court would wait until Monday (following the Thanksgiving holiday) to determine whether the juror would have to be excused from the panel.
On the following Monday, November 30, the court informed the parties that Juror No. 159's doctor would not allow him to return to participate in jury deliberations. The court stated it had also received a note from Juror No. 143 that morning "indicating that she wished for [Juror No. 159] to be removed from the jury because he appeared to be preoccupied with his medical problems. And according to her, he'd already made up his mind about the proceedings." The court did not address the juror's note, but said it would be substituting the final alternate juror for Juror No. 159.
The court then informed the jury that Juror No. 159 was "not able to participate any longer in the deliberations. His doctor will not permit it." The court substituted the final alternate for Juror No. 159, and again instructed the jury pursuant to CALCRIM No. 3575 that "you must set aside and disregard all past deliberations and begin your deliberations all over again. [¶] Each of you must disregard the earlier deliberations and decide this case as if those earlier deliberations had not taken place."
Three days later, on December 3, 2009, the jury returned guilty verdicts on all of the substantive counts. It was unable to make findings on the great bodily injury and forcible drug administration allegations.
A. Legal Analysis
Respondent first asserts that because the jury began its deliberations anew several days after the court gave the challenged instruction, the instruction was not applicable to the newly constituted jury deliberations. Appellant counters that the jury was not told at that time to ignore any instructions it had already been given and that it is reasonable to assume the jury believed the instruction still applied.
Even assuming the jury believed the challenged instruction was still in effect once the final alternate was brought onto the jury and deliberations began anew, we conclude that the court did not unduly pressure the jury to reach a verdict when it gave the instruction.
In People v. Gainer (1977) 19 Cal.3d 835, 852 (Gainer), our Supreme Court held that "it is error for a trial court to give an instruction which either (1) encourages jurors to consider the numerical division or preponderance of opinion of the jury in forming or reexamining their views on the issues before them; or (2) states or implies that if the jury fails to agree the case will necessarily be retried. [Fn. omitted.]" The Gainer court disapproved of the so-called "Allen charge"—approved by the United States Supreme Court in Allen v. United States, supra, 164 U.S. 492—which was used as a means of " 'blasting' a verdict out of a deadlocked jury." (Gainer, at pp. 842-844.)
In Moore, supra, 96 Cal.App.4th 1105, the appellate court upheld the trial court's giving of an instruction nearly identical to the one given in this case when the jury stated it could not reach a verdict after one day of deliberations. The court rejected the same arguments appellant makes here—that the instructions were coercive and improper—and instead commended the trial court "for fashioning such an excellent instruction." (Id. at p. 1122.) The court also concluded the supplemental instructions did not violate the rule set forth in Gainer. (Moore, at pp. 1118-1122.) The same instruction given in Moore has been cited with approval in People v. Hinton (2004) 121 Cal.App.4th 655, 661 and People v. Whaley (2007) 152 Cal.App.4th 968, 982-983.
The court in People v. Whaley, supra, 152 Cal.App.4th 968, 984-985, did observe that "the California Supreme Court in Gainer expressly commended the use of CALJIC No. 17.40 as a supplemental instruction where appropriate. [Citation.] Therefore, we believe that any departure from CALJIC No. 17.40 or the new pre-deliberation instruction set forth in CALCRIM No. 3550 should be carefully considered in light of Gainer and the circumstances of each case."
Similarly, in the present case, the challenged instruction did not violate the rule set forth in Gainer. Specifically, it did not mention the existence of a majority and a minority position or put pressure on minority jurors to agree with the majority opinion. Nor did it imply that failure to reach a verdict would necessarily result in a retrial. (See Gainer, supra, 19 Cal.3d at p. 850.) Rather, the instruction told each juror to "decide the case for yourself" and to "deliberate with the goal of arriving at a verdict on the charges" only if he or she could do so "without [doing] violence to [his or her] individual judgment."
The trial court gave this instruction after the jury had deliberated for approximately a day and a half. Given the length of the trial, it was not unreasonable at that point to ask the jury to continue its deliberations to ascertain whether it could reach a verdict. (See Moore, supra, 96 Cal.App.4th at p. 1121 ["[Penal Code] section 1140 vests the trial court with discretion to determine whether there is a reasonable probability of agreement among jurors who have reported an impasse"].) There was nothing coercive in the court's supplemental instruction.
Appellant expresses concern that the earlier removal of Juror Nos. 34 and 36 without explanation could have caused the rest of the jury to assume that their dismissal was based on their views, which "may have also led some of the remaining jurors to believe that they too would be removed if they continued to deliberate without reaching a verdict." The jury was instructed not to "consider this substitution for any purpose." We find appellant's suggestion about what the rest of the jury could have thought to be both unlikely and speculative.
V. Denial of Appellant's Motion for a New Trial
Appellant contends the trial court erred in denying his new trial motion based on the jury's receipt of R. S.'s unredacted restraining order declaration.
A. Trial Court Background
Appellant filed a motion for new trial, based in part on the contention that the jury erroneously received R. S.'s restraining order declaration. In the declaration, she had stated, inter alia, that when she found out she was pregnant, she "also found out that Jesus had given me a venereal disease (herpes)." The prosecutor opposed the motion, arguing that the declaration was properly admitted and that, even it was not, there was no prejudice. At a hearing on the motion for new trial, the prosecutor acknowledged that the statement that appellant had given her herpes should have been redacted, but also pointed out that defense counsel had cross-examined R. extensively on other information contained in the declaration. Appellant submitted the declaration of a juror who stated that, during deliberations, the jury had reviewed and discussed the restraining order and had compared the allegations in R.'s declaration with her trial testimony.
At the conclusion of the hearing, the trial court ruled as follows: "The transcript unfortunately is not clear as to admission of Exhibit 17 [the restraining order declaration]. There is a reference to Mr. Graves [the prosecutor] moving in all remaining numbered exhibits and a discussion about those exhibits. But Exhibit No. 17 is never specifically referenced.
"And that's correct, Ms. Barker [defense counsel], I didn't see it in the transcript either. So we have to proceed as if it had not been admitted I think.
"So given the fact that the transcript lacks clarity in that regard, the only issue is whether the admission of the—or the introduction of the exhibit into the jury room is so prejudicial that it requires this Court to grant a new trial.
"If the jury, for example, had found Mr. Barriere guilty of the great bodily injury enhancement, meaning the herpes, I might be more persuaded that it did affect their verdict. Their finding on that enhancement came back as not true.
"When you look at the voluminous testimony in this case, the very large number of exhibits, the fact that there was not one, not two, but three restraining orders referenced during the entirety of the trial, and of those, two of which were properly admitted into evidence, I am not persuaded that Exhibit No. 17 so influenced the jury that the motion should be granted.
"It is a document about which much testimony was adduced. The fact of the failure to redact the genital herpes comment by Ms. (S.) I don't find persuasive, because it appears that the jury disregarded that.
"In the context of the entire trial, given the length of the trial, the number of witnesses who testified, the number of exhibits admitted, the extensive direct and cross-examination about all of the restraining orders, I do not find that Exhibit 17 is so prejudicial in that regard as to require a new trial. So the motion as to that piece of evidence is denied."
B. Legal Analysis
Jurors' accidental consideration of extrinsic evidence does not constitute misconduct on their part and, therefore, no presumption of prejudice applies. (See People v. Gamache (2010) 48 Cal.4th 347, 398-399.) With such "ordinary error, prejudice must be shown and reversal is not required unless there is a reasonable probability that an outcome more favorable to the defendant would have resulted." (People v. Clair (1992) 2 Cal.4th 629, 668.) "On appeal, a trial court's ruling on a motion for new trial is subject to review for abuse of discretion." (Id. at p. 667.)
We find that the trial court's denial of appellant's new trial motion, based on its conclusion that appellant was not prejudiced by the inadvertent provision of R.'s declaration to the jury, was not an abuse of discretion. First, the jury did not reach a true finding on the great bodily injury allegation, which was based on Jane having genital herpes. Thus, regardless of whether the jury believed R.'s statement that appellant gave her herpes, it apparently was not convinced that appellant gave Jane herpes. Second, there was a huge amount of evidence presented in this case. This included the damning testimony of numerous prosecution witnesses, including appellant's other victims and a medical expert on sexual abuse. There were many exhibits, including two other restraining order declarations. The trial court was not unreasonable in concluding that it was not reasonably probable that a more favorable outcome would have resulted for appellant had the jury not seen R.'s statement about herpes in her restraining order. (See People v. Clair, supra, 2 Cal.4th at pp. 667-668.)
Appellant nonetheless argues that R.'s statement in her declaration that appellant had given her herpes affected the result because it necessarily caused the jury to view defense counsel as a liar who was not to be trusted. During closing argument, defense counsel argued: "The first piece of evidence and the first allegation is the issue of herpes. And there's a real problem here for the prosecution. First and foremost, there is absolutely no medical evidence whatsoever to suggest that Jesus Barriere has herpes. It is their burden of proof. If the prosecution believed that Jesus Barriere had herpes, they could have brought in a test to prove through a diagnosis, through lab work, that Jesus Barriere in fact has herpes. It's their burden of proof. Don't let them switch the burden to the defense." Appellant is making too much of R.'s statement in her restraining order declaration, which does not constitute medical evidence proving that appellant had herpes. Rather, it was one of several pieces of circumstantial evidence from which the jury could infer that he had herpes. In addition, although counsel argued that there was no evidence that appellant, Evelyn H., or Patricia P. had herpes, she never argued that there was no evidence that R. had herpes.
We note that the trial court had excluded evidence that R. had been diagnosed with genital herpes, but said it would allow evidence of "her condition" to be presented.
In sum, the trial court's ruling on the motion for new trial was reasonable and there was no abuse of discretion. (See People v. Clair, supra, 2 Cal.4th at p. 667.)
VI. Need to Strike Sentence and Enhancement for Count Six
Appellant contends the six-year determinate sentence and the Penal Code section 12022.3 enhancement for count six must be stricken.
Appellant was convicted in count six of forcible lewd and lascivious acts upon a child, pursuant to Penal Code section 288, subdivision (b). The jury also found true the allegations that appellant had used a knife in the commission of the offense, pursuant to Penal Code sections 667.61, subdivisions (a) and (e), and 12022.3, subdivision (a). At sentencing, the trial court imposed the midterm of six years on count six. It also imposed a consecutive 10-year term for the knife use finding, under Penal Code section 12022.3, subdivision (a), and a consecutive term of 15 years to life for use of a deadly weapon, under Penal Code section 667.1, subdivision (b).
Appellant argues that the court improperly imposed both a determinate and indeterminate sentence on count six. He also argues that the court improperly imposed an additional 10-year term on counts six for the knife use under Penal Code section 12022.3, since the knife use was already the basis of the One Strike term imposed under Penal Code section 667.61, subdivision (b). He therefore asserts that both the determinate term and the enhancement term must be stricken. Respondent agrees.
First, as to the six-year determinate term for the violation of Penal Code section 288, subdivision (b)(1), we agree that the trial court should not have sentenced appellant under both the One Strike and the determinate sentencing laws for count six "because the former is an alternative, harsher sentencing scheme for those to whom it applies, not an enhancement under the latter." (People v. Fuller (2006) 135 Cal.App.4th 1336, 1343, citing People v. Acosta (2002) 29 Cal.4th 105, 118-128.) Accordingly, because the court erroneously treated the indeterminate term under Penal Code section 667.1 as an "enhancement" rather than an alternative sentence, the additional six-year determinate term must be stricken.
Second, as to the additional 10-year term on count six for the knife use, because the knife use was the basis for the indeterminate term under Penal Code section 667.1, it cannot also be used to enhance the sentence under Penal Code section 12022.3. (See People v. Mancebo (2002) 27 Cal.4th 735, 739 ["given the express pleading and proof requirements of [Penal Code] section 667.61, gun use, having been properly pled and proved as a basis for One Strike sentencing, was unavailable to support [Penal Code] section 12022.5[, subdivision] (a) enhancements"]; Pen. Code, § 667.61, subd. (f).)
Accordingly, on remand, appellant's total sentence for count six must be reduced to 15 years to life in prison. (See Pen. Code, § 667.61, subd. (b).)
VII. Restitution Fine
The trial court imposed a $20,000 restitution fine under Penal Code section 1202.4, subdivision (b). Appellant contends the restitution fine must be reduced to $10,000. Respondent agrees.
The court also imposed an additional $20,000 suspended fine under Penal Code section 1202.45.
Penal Code section 1202.4, subdivision (b)(1), provides that the court shall impose a restitution fine of not more than $10,000 for a person convicted of a felony. (See People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534 [maximum restitution fine that may be imposed in a criminal prosecution is $10,000, regardless of number of victims or counts involved].)
On remand, the restitution fine imposed in this case must be reduced to $10,000.
VIII. Presentence Credits
The trial court awarded appellant 1,356 actual days of presentence credits. With 203 days of local conduct credits, appellant received a total of 1,559 days of presentence credits.
Appellant contends he was in fact entitled to a total of 1,685 days of presentence credits, including credit for 1,466 days in custody before sentencing and 219 days of local credits.
Because we are remanding the matter to the trial court for resentencing, upon remand, appellant can raise this claim to that court, which is in the best position to resolve the question of presentence credits.
DISPOSITION
This matter is remanded to the trial court for resentencing on count six, correction of the improper restitution fine imposed, and recalculation of appellant's presentence credits, consistent with the views expressed herein. In all other respects, the judgment is affirmed.
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Kline, P.J.
We concur:
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Haerle, J.
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Richman, J.