Opinion
B229333
01-19-2012
THE PEOPLE, Plaintiff and Respondent, v. JAIME ANTONI CALIX, Defendant and Appellant.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. BA359130
APPEAL from a judgment of the Superior Court of Los Angeles County, George G. Lomeli, Judge. Affirmed.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Jaime Antoni Calix challenges his convictions for oral copulation or sexual penetration with a child under the age of 10 and for lewd acts upon a child. We find no prejudicial error and affirm.
FACTS
1. S.'s Testimony and Statements
S. testified that when she was in kindergarten, she visited appellant Jaime Antoni Calix, her father, at his house, where he lived with his parents. Appellant and S. were in appellant's bedroom, and appellant shut the door. The only other person home was S.'s grandmother, who was in the kitchen. Appellant played a pornographic movie, removed S.'s clothes, and touched S.'s vagina with his penis. Appellant kissed S.'s lips and licked her buttocks and vagina. Appellant put his finger in S.'s vagina. When appellant put his penis in S.'s vagina, S. said "ow." Appellant told S. not to tell her mother. At trial, S. explained that appellant's conduct was the same as the performers' conduct in the pornographic movie.
During cross-examination, S. testified at trial that appellant did not use his fingers, just his penis and his mouth.
Prior to trial, S. told police that appellant had removed his pants and underwear in addition to her pants and underwear. She also previously told police that appellant licked her neck while watching a movie with naked people. S. did not tell officers that appellant put his finger in her vagina, but told them that appellant put his penis in her vagina, causing her vagina to hurt afterwards. S. did not say that appellant had sexual intercourse with her. S. told officers that appellant kept the pornographic movie in his dresser, and officers found a pornographic movie in appellant's dresser.
S. told her mother that appellant licked her ears, neck, breasts, and vagina. S. complained to her mother that her vaginal area hurt when she urinated. S. told her mother that appellant made her watch a video of naked people kissing and then kissed her on the lips, removed his and her clothing, and put his penis inside her vagina. S.'s mother did not tell officers that appellant put his finger in S.'s vagina.
2. Appellant's Testimony and Confessions
Prior to trial, appellant voluntarily went to the police station to take a polygraph examination. The results of the polygraph examination were inconclusive. Appellant was informed that he failed the test.
The parties stipulated to the admissibility of the polygraph examination. Defense expert Louis Rovner testified that when a person achieves an inconclusive score, it is improper to tell the person he or she is lying.
After the examination, appellant was interviewed by the examiner. He initially vehemently denied any sexual misconduct. But, eventually, he admitted that "maybe" he touched S. with his fingers. He "probably" rubbed his penis against her. Appellant "spread her legs and just like went through the motion" but did not remove his underwear. He touched S.'s vagina underneath her underwear. He rubbed against S. His penis "maybe" touched S. under her underwear. A video recording of the interview was played for the jury.
After his polygraph examination, appellant was then interviewed by detectives. In that interview, he admitted that he took off S.'s pajamas and moved S.'s underwear aside. Appellant was aroused when S. massaged his back. Appellant rubbed his penis on S.'s "private parts." Appellant rubbed S. back and forth on his penis. Appellant put his fingers underneath S.'s underwear. His penis touched her vaginal area. S. said "ow" and "stop." Appellant went to take a shower and ejaculated in the bathroom. An audio recording of the interview was played for the jury.
At trial, appellant explained that his admissions were the result of pressure from the interrogators, who rejected his denials. He stated that he confessed to protect S. Appellant testified that his earlier confession was merely a lie. Appellant denied rubbing his penis on S.'s vagina, kissing S.'s breasts, playing a pornographic movie in front of S., putting his finger in S.'s vagina, or molesting S. Appellant admitted that he once masturbated in front of S., and testified that S. might have seen his erect penis when he showered.
3. Additional Testimony
Dr. Lynne Ticson found no evidence of acute trauma on S.'s genitalia, but considered this finding normal following sexual abuse that did not include full sexual intercourse. Dr. Patricia Russell examined S. in March 2010 for a well-child exam and saw no evidence of sexual abuse.
There was evidence that S.'s mother was upset appellant never provided child support. There was also evidence that S.'s mother scratched or slapped S., but S.'s mother denied she slapped S. S.'s mother testified that she did not coach S. to manufacture the abuse. S.'s mother testified that the visit in which father molested S. occurred on May 31, 2009, and S.'s mother noticed a rash in S.'s vagina at about 5:30 or 6:00 o'clock that night. The police were called on June 9, 2009.
Appellant's mother testified that in 2009, S. was never in appellant's room without a monitor. S.'s Sunday school teacher testified that S. was in Sunday school on May 31, 2009, at 5:00 p.m.
PROCEDURE
In a three-count information, appellant was charged with oral copulation or sexual penetration of a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b)) for acts that occurred between May 8, 2008, and May 31, 2009 (count 1). He was charged with lewd acts upon a child in violation of section 288, subdivision (a) for acts that occurred between May 8, 2008, and May 31, 2009 (count 2). Finally, he was charged with a second violation of section 288.7, subdivision (b) for acts that occurred between January 1, 2007, and February 18, 2007. It was also alleged that appellant suffered a prior serious or violent felony conviction for carjacking.
Statutory citations are to the Penal Code.
The jury found counts 1 and 2 true and could not reach agreement on count 3.Appellant admitted the prior carjacking conviction. For count 1, the court sentenced appellant to a prison term of 35 years to life. For count 2, the court ordered a concurrent sentence of 12 years. This appeal followed.
Because this appeal is not from a conviction on count 3, we do not summarize the facts relevant to it.
DISCUSSION
Appellant argues (1) the court erred in refusing to postpone his testimony, (2) the court erred in failing to give a unanimity instruction on count 1, (3) the court erred in failing to instruct the jury that sexual penetration required a specific intent, (4) the court erred in failing to instruct the jury on the lesser included offense of battery, (5) appellant received the ineffective assistance of counsel, and (6) cumulative error requires reversal. We discuss his arguments seriatim.
1. Continuance
Appellant argues that the court erred in refusing to postpone his cross-examination testimony so that he could be given antipsychotic and antihypertension medications. We first provide additional background and then explain why appellant's contention lacks merit.
A. Background
Appellant began his direct examination on September 1, 2010. Appellant's testimony was interrupted to take other witnesses out of order, and defense counsel agreed that appellant would continue to be available to testify. That afternoon, appellant retook the stand, direct examination continued, and then cross-examination commenced. Cross-examination continued the next day.
When the prosecutor questioned appellant about his pretrial admissions, appellant stated that he was confused, could not recall, and had not taken his medication. Appellant stated that if he did not take his medication, he would "forget things." He further explained that he suffered from hypertension and his heart was pumping rapidly. Appellant also testified that when he lied to a detective about his prior criminal record, he was "three days without my medication that day too." According to appellant, he could "go three days without my medication, but after that, I lose control. I can go either up or down. Today is my first day, so I can still manage." In addition to medication for hypertension, appellant stated that he took Tegretol. On appeal, appellant represents that Tegretol is a mood stabilizing drug used to treat bipolar disorder.
Before the September 2 afternoon session began, defense counsel requested a recess in order to allow appellant time to be medicated and stated that appellant suffered from bipolar disorder. The court denied the request, finding nothing "that would alert this court [appellant] has any problems. I think he is flustered up there, and I think it's the pressure of the examination . . . ." The court found no difference in appellant's testimony on September 1 and September 2. Appellant's cross-examination continued for a brief period of time in which appellant admitted information that had been tape-recorded, but stated that the tape was deficient because not everything was included in it. Appellant also testified on redirect, and counsel asked him questions about his medication.
B. Analysis
The only question preserved for appeal is whether the court should have postponed appellant's afternoon testimony when defense counsel requested a recess so that appellant could take his medication. That was the only request made in the trial court. This case did not involve the denial of appellant's right to testify as he states on appeal. Appellant was given the opportunity to testify, chose to exercise it, and testified at length. Nor does this case involve the forced medication of a prisoner as in Riggins v. Nevada (1992) 504 U.S. 127, the case principally relied on by appellant. Riggins concerned forcing a defendant to take medication, which produced side effects hampering cross-examination, interaction with counsel, or comprehension of trial despite no finding that the medication was medically appropriate or essential for the defendant's safety or the safety of others and may have denied the defendant a full and fair trial. (See id. at pp. 133-138.) Riggins is not relevant here because the state did not force appellant to take medication. Finally, this case does not require evaluating whether a competency hearing was required because appellant "does not contend that the trial court should have held a full competency hearing accompanied by a formal psychiatric evaluation and jury trial."
Appellant's argument that a continuance was necessary is premised on his assertion that his medication would have "eas[ed] his anxiety and confusion in the courtroom and permit[ted] him to tell his story to the jury as well as possible." Along the same lines, appellant asserts that "the lack of medication affected [his] mental alertness during his cross-examination [and his] mental alertness was undoubtedly severely impaired by a combination of physical and mental stress of undergoing a cross-examination, and the physical and mental effects of having been denied his anti-psychotic and anti-hypertension medications."
Appellant's assertions that his medication would have ameliorated his anxiety or confusion or in any manner affected his testimony are based on mere speculation. There was no evidence that appellant's medication would have affected his recall, his mental alertness, or his anxiety level. Appellant testified that he was okay if he missed his medication for one day, but had problems if he missed it for three days. No one testified that one dosage of the medication could have affected appellant's recall, and the trial court was not required to credit appellant's naked assertion that he was unable to recall, especially when his inability to recall concerned only his prior admissions. Because no evidence supported appellant's assertion that the absence of medication affected his ability to testify, appellant has not shown that the court abused its discretion in denying a continuance. (People v. Hawkins (1995) 10 Cal.4th 920, 945 (Hawkins) ["'granting or denying a continuance during trial traditionally rests within the sound discretion of the trial judge'"].)
Hawkins was disapproved on another point in People v. Lasko (2000) 23 Cal.4th 101, 110.
In merely assuming that the medication affected appellant's testimony, appellant's argument entirely ignores the trial court's finding that his testimony on September 2 was not distinguishable from his testimony on September 1. Appellant's testimony during redirect was clear and lucid, supporting the trial court's conclusion that his purported inability to recall on cross-examination was the result of cross-examination, not the lack of one dose of medication. The record supports the court's finding that appellant's testimony was not materially different on the day he lacked medication from the day he had medication.
Appellant complained of his lack of medication after the prosecutor asked the following question: "Didn't you tell Detective Benjamin on June 22, with regard to May 31, that around 5:00 p.m. that night, you were lying on your stomach, taking a nap, [S.] got up on your bed and began to walk on your back, giving you a massage, that you became aroused and your penis became erect, and you sent her downstairs to have dinner and you took a shower?"
2. Unanimity Instruction
With respect to count 1 (oral copulation or sexual penetration of a child 10 years or younger), the trial court did not provide a unanimity instruction. Appellant argues that the failure to give such an instruction requires the reversal of his conviction on that count. We disagree.
"'It is fundamental that a criminal conviction requires a unanimous jury verdict [citations].' [Citation.]" (People v. Thompson (1995) 36 Cal.App.4th 843, 850; see also Cal. Const., art. I, § 16.) "[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (People v. Russo (2001) 25 Cal.4h 1124, 1132.) "A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses. [Citations.] A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged." (People v. Maury (2003) 30 Cal.4th 342, 423.)
In contrast, no unanimity instruction is required when the offense constitutes a continuous course of conduct. (People v. Stankewitz (1990) 51 Cal.3d 72, 100.) "The 'continuous conduct' rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them." (Ibid.)
Here, appellant's acts were "based on a continuous course of conduct, whose acts were so closely connected in time as to form part of one transaction." (People v. Maury, supra, 30 Cal.4th at p. 423.) The prosecutor made clear in her closing argument that the acts alleged in count 1 occurred on Memorial Day weekend. All of the acts appellant and S. described were closely connected in time. Prior to trial, appellant admitted all the conduct occurred before his shower. In addition to temporal proximity, the acts were spatially connected as they all occurred in the same room. Appellant's conduct can be described only as part of one transaction.
Citing pages 702 to 704 of the reporter's transcript, appellant states that S. "testified that on many occasions defendant kissed her all over her body . . . ." The record does not support appellant's assertion. S. testified that it happened more than one time. The prosecutor, however, limited counts 1 and 2 to the Memorial Day weekend incident and focused her questions regarding this incident to "the time there were naked people on the T.V." No reasonable juror could have found that count 1 or 2 was based on some other incident.
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Further, contrary to his argument, appellant did not offer separate defenses. Instead, his counsel argued that S.'s testimony was fabricated because her mother coached her to lie about appellant; appellant's confession was the result of pressure by interrogators; and S. was in Sunday school at the time of the alleged acts. As appellant argues in another portion of his opening brief, his "primary defense was that [S.]'s allegations were manufactured and that defendant falsely confessed to sexually molesting her." The jury necessarily rejected these arguments. In short, appellant fails to show that a unanimity instruction was required.
3. Intent Instruction
Appellant argues that because the prosecutor relied on sexual penetration for the section 288.7, subdivision (b) charge (count 1), the court should have instructed the jurors that the sexual penetration "must be 'for the purpose of sexual arousal, gratification, or abuse . . . ." Stated otherwise, according to appellant the court erred in failing to instruct the jurors that count 1 required a specific intent.
Insofar as appellant argues that the court should have instructed the jury that sexual penetration required specific intent, his argument has merit. (People v. Wickersham (1982) 32 Cal.3d 307, 323 [trial court must instruct the jury sua sponte on the general principles of law that are closely and openly connected to the evidence presented at trial], disapproved on another ground in People v. Barton (1995) 12 Cal.4th 186, 200-201.) The court erred in describing the crime of sexual penetration of a child as a general intent crime instead of a specific intent crime. (People v. Whitham (1995) 38 Cal.App.4th 1282, 1290 [sexual penetration with a foreign object is a specific intent crime requiring purpose of sexual arousal, gratification, or abuse].)
The error however, was harmless beyond a reasonable doubt because, under other instructions, the jury could not convict appellant of sexual penetration of a child without finding he had the requisite specific intent. (People v. Brenner (1992) 5 Cal.App.4th 335, 339 [instructional error regarding specific intent should be analyzed under Chapman v. California (1967) 386 U.S. 18 standard].) Specifically, the jury was instructed that "'Sexual penetration' is the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant's or another person's genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object." (Italics added.) Under this instruction, the jury could not have found appellant guilty unless it concluded that he penetrated S. "for the purpose of sexual arousal, gratification, or abuse . . . ." That is the precise language appellant argues should have been given to the jury. It appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman, at p. 24.) Reversal is therefore not warranted.
4. Battery Instruction
Appellant argues battery is a lesser included offense of oral copulation or sexual penetration of a child under 10, and the court erred in failing to instruct the jury on battery. A trial court has a sua sponte duty to instruct on lesser included offenses when a jury could conclude that the lesser but not the greater offense was committed. (People v. Breverman (1998) 19 Cal.4th 142, 153-155.)
Assuming battery was a lesser included offense of the oral copulation or sexual penetration offense, there was no substantial evidence the jury could have concluded that the offenses committed were less than those charged. Battery requires a "willful and unlawful use of force or violence upon the person of another." (§ 242.) S.'s testimony was that appellant committed more than a battery. Appellant did not testify that he willfully and unlawfully used force on S. Instead, he testified that the allegations were the result of S.'s mother coaching her and the confession was the result of undue pressure by the interrogators. He claimed that all of his admissions were false and were made to protect his daughter. Under the circumstances of this case, it would be unreasonable to conclude that a battery occurred but oral copulation or sexual penetration did not. (See People v. King (2010) 183 Cal.App.4th 1281, 1319 [finding instruction on battery unwarranted when it would be unreasonable to conclude the appellant committed only a battery].) Because no evidence supported a finding that appellant committed only a battery, an instruction on battery was not warranted. (People v. McDaniel (2008) 159 Cal.App.4th 736, 747.)
5. Appellant's Remaining Arguments Lack Merit
Appellant argues that he received the ineffective assistance of counsel based on the alleged instructional errors discussed above. Because we considered these issues on the merits, we need not consider appellant's claim that counsel was ineffective for failing to raise the issues in the trial court.
Appellant argues that he suffered cumulative prejudice. Because we find only one error, there was necessarily no cumulative prejudice.
DISPOSITION
The judgment is affirmed.
FLIER, J.
We concur:
RUBIN, Acting P. J. GRIMES, J.