Opinion
G058442
05-25-2021
THE PEOPLE, Plaintiff and Respondent, v. CORNELIO VELASQUEZ CHAIREZ, Defendant and Appellant.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 19CF1400) OPINION Appeal from a judgment of the Superior Court of Orange County, Jonathan S. Fish, Judge. Affirmed and remanded with directions. Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Cornelio Velasquez Chairez challenges his convictions on multiple sex offenses against two different victims. Finding no merit in any of defendant's arguments, we affirm.
The victims were referred to as Jane Doe Minor and Jane Doe in the trial court. To avoid confusion, we will refer to them in this opinion as the minor victim and the adult victim.
First, the trial court did not err in denying defendant's motion to sever the trial of the charges involving the two different victims. The trial court's findings were supported by substantial evidence.
Second, the trial court did not err in imposing full, consecutive sentences for three of the crimes committed against the minor victim. The trial court properly found that defendant had a reasonable opportunity to reflect on his actions and nevertheless resumed his sexual assault between the commission of the various sexual offenses against the minor victim.
Finally, we agree with the Attorney General that the abstract of judgment must be corrected, and we direct that the trial court do so.
STATEMENT OF FACTS
Because defendant does not challenge the sufficiency of the evidence supporting his convictions, we limit our statement of facts to those necessary for an understanding of the issues on appeal.
The Minor Victim
Late in the evening of November 23, 2018, the minor victim was sitting on a bench at Cabrillo Park in Santa Ana. Defendant walked past, then turned around and sat on the bench with her. The minor victim felt uncomfortable and started to walk away. Defendant told her to come back and sit down; she complied when she saw he was holding a knife. Defendant threatened to cut the minor victim with the knife.
Defendant stood up, unbuckled his belt, and tried to force the minor victim to orally copulate him. As she struggled against him, defendant pulled off the minor victim's pants, ripped her underwear, and digitally penetrated her. The minor victim was in pain and asked defendant to stop. Defendant orally copulated the minor victim, then adjusted his position and raped her. She tried to push defendant off, but he pushed back and hit her in the face more than ten times. He also placed the knife to her face while he raped her. Defendant told the minor victim to be quiet and covered her mouth with his hands when she tried to yell for help. After a while, defendant stopped assaulting the minor victim and left.
The Adult Victim
Early on the morning of January 26, 2019, the adult victim was walking to pick up her car when she saw defendant in a car near the corner of First Street and McFadden Avenue in Santa Ana. Defendant offered her a ride to her car, which she accepted. Once they found her car, defendant asked the adult victim if she wanted to join him for a drink at a nearby motel, and she agreed.
While the adult victim was fixing her wig in the motel room mirror, defendant "slapped her ass" twice. When she turned around, defendant punched her in the face. She told him to stop and tried to kick and push him away. She fell to the floor facedown and defendant got on top of her and started pulling her pants down. Defendant digitally sodomized her and, when she screamed, punched her in the head.
Defendant offered her money in exchange for sex, but she refused. Defendant then stood up to get more money. The adult victim stood up, pulled her pants up, grabbed her fanny pack and her cellphone, and tried to leave. Defendant blocked her escape, grabbed her fanny pack, and said something like "you've agreed on the price." The adult victim responded that she was not going to do it and she wanted to leave. While holding her phone she said she was going to call the police. As she moved toward the door to leave, defendant punched her in the head. She began recording the incident on her phone.
Defendant told the adult victim he would let her go as soon as he located his keys. Defendant punched her in the face, causing her to fall to the floor again, and then stepped on her. Defendant grabbed the strap from the adult victim's fanny pack, straddled her, and placed the strap around her neck and began strangling her. When the adult victim tried to scream for help, defendant put his hand over her mouth, and she bit his finger. She successfully dialed 911, gave the dispatcher her location, and screamed for help.
Defendant again pulled off the adult victim's pants while holding her on the ground. He then released his grip on the adult victim, stood up, and stepped outside. When he came back inside and shut the door, he again punched her in the chest, face, and head. Defendant left the motel room, walked to his car, and returned as the police were arriving.
When the officers arrived, they heard yelling coming from a motel room with the door ajar. Defendant appeared in the doorway wearing only pants and socks. He had blood on his torso, face, and hand. The officers saw the adult victim sitting on the edge of the bed nude from the waist down. Both of her eyes were swollen shut and the right side of her neck was red. The room was in disarray and there appeared to be blood on the wall.
The motel at which the adult victim was attacked was about a mile from the park at which the minor victim had been attacked.
PROCEDURAL HISTORY
Defendant was charged in an amended information with attempted forcible oral copulation on a minor 14 years or older [count 1] (Pen. Code, §§ 664, subd. (a), 288a, subd. (c)(2)(C)); sexual penetration of a child over the age of 14 by a foreign object and force [count 2] (id., § 289, subd. (a)(1)(C)); forcible rape [count 3] (id., § 261, subd. (a)(2)); forcible oral copulation on a minor 14 years or older [count 4] (id., § 288a, subd. (c)(2)(C)); assault with intent to commit a sexual offense [counts 5 and 7] (id., § 220, subd. (a)(1)); assault with force likely to produce great bodily injury [count 6] (id., § 245, subd. (a)(4)); and attempted murder [count 8] (id., §§ 664, subd. (a), 187, subd. (a)). Counts 1 through 4 related to the offenses against the minor victim, and counts 5 through 8 related to the offenses against the adult victim. The amended information further alleged as sentencing enhancements that, as to count 3, defendant committed the offense on a minor victim 14 years or older (id., § 264, subd. (c)(2)); as to counts 1 through 4, defendant personally used a deadly weapon (id., §§ 667.61, subds. (b) & (e)(3), 12022, 12022.3, 12022.5, 12022.53); and as to counts 5 through 8, defendant personally inflicted great bodily injury (id., §§ 667.5, 1192.7, 12022.7, subd. (a)).
A jury convicted defendant of counts 1, 2, 3, 4, and 6, and found true the attendant sentencing enhancement allegations. On counts 5 and 7, the jury found defendant guilty of the lesser included offense of simple assault, and found defendant not guilty on count 8. The trial court sentenced defendant to 51 years to life in prison: 15 years to life each on counts 2 through 4, 3 years on count 6, and 3 years for the great bodily injury enhancement on count 6. The court suspended execution of sentence on count 1 under section 654. This appeal followed.
DISCUSSION
I.
MOTION TO SEVER
Before trial, defendant moved to sever counts 1, 2, 3, and 4 related to the minor victim from counts 5, 6, 7, and 8 related to the adult victim. Defendant argued (1) the evidence of the crimes was not cross-admissible, (2) the evidence involving the minor victim was likely to inflame the jury and was, therefore, too prejudicial to be joined with the evidence involving the adult victim, and (3) the case involving the minor victim was much stronger than that involving the adult victim.
The People opposed the motion on the grounds the evidence of the crimes was cross-admissible and would be admissible under Evidence Code sections 1101, subdivision (b) and 1108, precluding any prejudice to defendant.
After a hearing, the trial court found that the crimes were of the same class; the crimes against one victim would be admissible under Evidence Code section 1108 to buttress the case involving the other victim; the incident involving the minor victim could be used to show intent as to the incident involving the adult victim; and it would not be unduly prejudicial to defendant to try the cases together. Therefore, the trial court denied the motion to sever.
We review the trial court's denial of a motion to sever for an abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 187.) "[T]he burden is on the party seeking severance to establish clearly that a substantial danger of prejudice exists requiring that the charges be tried separately." (People v. Cunningham (2001) 25 Cal.4th 926, 985.) A party seeking severance of charges that are properly joined "'must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial.'" (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1226, fn. 17.)
"Denial of a severance may be an abuse of discretion where (1) evidence related to the crimes to be tried jointly would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; [and] (3) a 'weak' case has been joined with a 'strong' case . . . . [Citations.] The first criterion is most significant because, if evidence on each of the joined charges would have been admissible in a separate trial on the other, '"any inference of prejudice is dispelled."'" (People v. Cunningham, supra, 25 Cal.4th at p. 985.) Complete cross-admissibility is not required. (Ibid.)
Defendant first argues that the majority of the evidence would not have been cross-admissible in separate trials. Defendant concedes that, pursuant to Evidence Code sections 1101 and 1108, defendant was charged with sexual offenses against both victims and that evidence concerning the minor victim could be used to prove intent as to the charges involving the adult victim. Defendant's focus on appeal is whether the use of the evidence involving one victim was too prejudicial vis-à-vis the crimes against the other victim.
Defendant argues that the assaults against the two victims were dissimilar. To the contrary, both involved multiple attempted or completed sex offenses committed by the use of excessive amounts of force.
Defendant also argues that the two assaults were not close in time. The attacks on the minor victim and the adult victim occurred two months apart. Given that courts have found a gap of multiple years between crimes does not make them too remote in time to be admissible, this argument lacks merit. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405; People v. Waples (2000) 79 Cal.App.4th 1389, 1395.)
Next, defendant argues that the crimes against the minor victim were more inflammatory than those against the adult victim, both because of the age of the victim and the nature of the crimes charged. Nothing in this record establishes that the trial court abused its discretion in finding against defendant on this point. While sexual offenses involving children are shocking, the crimes committed against the adult victim included assault with intent to commit a sex offense coupled with a great bodily injury enhancement, as well as attempted murder. And the actual verdicts by the jury tend to indicate the alleged inflammatory nature of counts 1 through 4 did not have a bearing on the jury's consideration of counts 5 through 8, given that the jury either acquitted defendant or found him guilty of a lesser offense on three of those four counts.
Finally, defendant argues that the joint trial violated his right to due process. The issue on appeal is "whether events after the court's ruling demonstrate that joinder actually resulted in 'gross unfairness' amounting to a denial of defendant's constitutional right to [a] fair trial or due process of law." (People v. Merriman (2014) 60 Cal.4th 1, 46.) "In resolving a claim that joinder resulted in gross unfairness in violation of a defendant's right to a fair trial and due process, we have observed that a judgment will be reversed on this ground only if it is 'reasonably probable that the jury was influenced [by the joinder] in its verdict of guilt.'" (Id. at p. 49; see People v. Earle (2009) 172 Cal.App.4th 372, 409 [appellant must show a "considerable likelihood" that the joinder affected the jury's verdict]; People v. Grant (2003) 113 Cal.App.4th 579, 588 [appellant must demonstrate a "reasonable probability" that the joinder affected the jury's verdicts].)
Defendant's arguments that the evidence of the crimes against one victim was not cross-admissible in the case involving the crimes against the other and that the case involving the minor victim was more inflammatory than the case involving the adult victim have been fully addressed ante. Defendant also argues that the prosecutor prejudicially invited the jury to consider the evidence of one victim in resolving the crimes involving the other.
In Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073, "the State repeatedly encouraged the jury to consider the two sets of [murder] charges in concert, as reflecting the modus operandi characteristic of [the defendant's] criminal activities." (Id. at p. 1084.) The court explained that a jury cannot reasonably be expected to "'"compartmentalize the evidence" so that evidence of one crime [did] not taint the jury's consideration of another crime,' [citation] when the State's closing argument and the import of several of the instructions it heard urged it to do just the opposite." (Ibid.)
In People v. Grant, supra, 113 Cal.App.4th at pages 589 to 590, the prosecutor repeatedly urged the jury to make an improper inference that the defendant had committed burglary based on the evidence of the defendant's possession of stolen property.
In People v. Earle, supra, 172 Cal.App.4th at pages 409 to 411, the prosecutor explicitly told the jury that it could consider the evidence of an indecent exposure count involving one victim to determine whether the defendant was guilty of a separate count of sexual assault against another victim. The appellate court held that had the jury not been told it could consider evidence of the indecent exposure to find the defendant guilty on the sexual assault count, it was possible that it would have acquitted the defendant of the assault charge. (Id. at p. 411.) The joinder "resulted in such gross unfairness as to deprive defendant of a fair trial and thus of due process of law." (Ibid.)
In each of these cases, the appellate court found that the evidence was not cross-admissible, and that one case was weak while the other was strong. Further, in each case the prosecutor repeatedly urged the jury to use the facts of one crime to convict the defendant of another.
Here, as noted ante, the evidence was cross-admissible and the case involving the adult victim was not appreciably weaker than the case involving the minor victim. Defendant cites us to a single reference by the prosecutor during closing argument that it was "interesting" that in both cases, defendant placed his hand over the victim's mouth when she began to scream. Neither the instructions nor the closing argument urged the jury to base its verdict on one set of charged crimes on the strength of the other set.
II.
SENTENCING ISSUE - FULL, CONSECUTIVE TERMS
Defendant argues that the trial court imposed improper full, consecutive sentences on counts 3 and 4, pursuant to Penal Code section 667.6, subdivision (d). The Attorney General argues that full, consecutive sentences were required; alternatively, he argues that if such sentences were not required, the trial court properly exercised its discretion.
"A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions. [¶] In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions." (Pen. Code, § 667.6, subd. (d).) Sexual penetration, forcible rape, and forcible oral copulation, the crimes charged in counts 2, 3, and 4, are specified in Penal Code section 667.6, subdivision (e).
The trial court explained why it was imposing full, consecutive sentences under Penal Code section 667.6, subdivision (d), at the sentencing hearing: "Here . . . [the minor victim is] sitting on a park bench. The defendant . . . whistles at her. A knife comes out. He calls the victim over. He stood up and unbuckled his belt and ordered [the minor victim] to put [her] mouth on his penis. She resisted. Ultimately, the penis touched the cheek of [the minor victim]. He sat with her, tried to take her pants off. She resisted. He pulled the pants off to one side. He ripped the underwear, put fingers into her vagina. There was repositioning and still struggling when he put his mouth on her vagina, licking the inside of it. She slapped at him. He then raped her with a hand over her mouth. . . . [¶] The Court finds that the defendant, based on those facts, did have a reasonable opportunity to reflect upon his actions between all of those sexual assaults. [¶] And, because of that, I am going to sentence him consecutively as to Count 3 . . . ."
"Once a trial judge has found under section 667.6, subdivision (d), that a defendant committed offenses on separate occasions, we may reverse only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior." (People v. Garza (2003) 107 Cal.App.4th 1081, 1092.)
"[A] finding of 'separate occasions' under Penal Code section 667.6 does not require a change in location or an obvious break in the perpetrator's behavior: '[A] forcible violent sexual assault made up of varied types of sex acts committed over time against a victim, is not necessarily one sexual encounter.'" (People v. Jones (2001) 25 Cal.4th 98, 104.)
Based on the foregoing, we conclude that defendant's due process rights were not violated by the trial court's refusal to sever the trial of the charges.
III.
ABSTRACT OF JUDGMENT
The Attorney General requests that we order that the abstract of judgment be corrected to include the sentence on count 1. Defendant does not object to this request.
Defendant was found guilty on count 1, and the trial court stayed execution of sentence on that count pursuant to Penal Code section 654. Count 1 does not appear on either the determinate abstract of judgment or the indeterminate abstract of judgment. It is appropriate for this court to order that an abstract of judgment be corrected to reflect the trial court's oral pronouncement of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185, 188; People v. Felix (2009) 172 Cal.App.4th 1618, 1631.)
DISPOSITION
The judgment is affirmed. The trial court shall amend the abstract of judgment to reflect the sentence on count 1 and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.