Opinion
E050303 Super.Ct.No. RIF141017
12-12-2011
THE PEOPLE, Plaintiff and Respondent, v. NICASIO MENDOZA CRESENCIO, Defendant and Appellant.
Steven A. Torres, under appointment of the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dana R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Lynne G. McGinnis, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Robert E. Law, Judge. (Retired judge of the former Mun. Ct. for the Orange Jud. Dist. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part with directions.
Steven A. Torres, under appointment of the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dana R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
In December 2009, defendant Nicasio Mendoza Cresencio was found guilty of two counts of sexual intercourse with a child under 10 while he was over 18 years old (Pen. Code, § 288.7, subd. (a); counts 1 and 2) and two counts of committing a lewd act upon a minor (§ 288, subd. (a); counts 3 and 4). Defendant was sentenced to 60 years to life in state prison. Defendant now appeals, contending (1) the trial court erred because it did not instruct the jury on the lesser-included offense of attempted sexual intercourse with a child; (2) variations in the jury instructions, closing arguments, and verdict forms resulted in jury confusion as to counts 1 and 2; (3) his punishment was cruel and unusual; and (4) the sentencing minute order and abstract of judgment should be amended to strike the $10,000 restitution and parole revocation fines. We conclude the trial court erred in failing to instruct the jury on the lesser included offense of attempt as to counts 1 and 2, and the error requires reversal. Consequently, defendant's other contentions are moot.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTS AND PROCEDURAL BACKGROUND
Defendant is a native of a small tribe in Mexico, and his native language is Nahuatl, but he also speaks some Spanish after living in the United States for several years. Defendant's trial was conducted with two interpreters: Nahuatl to Spanish and Spanish to English.
The victim and her mother shared an apartment with defendant and his cousin. The victim testified that in 2007 when she was six years old, defendant began coming into the living room where she and her mother slept and climbing into bed with her while her mother was at work. Defendant removed his shorts but kept his underwear on. Defendant touched the victim "[f]rom behind" and pulled down her pants, but not her underwear. He touched her "back part" "where [she went] poop" with his penis once. She then testified, however, that he had touched her "back part" each time he had come into her room. She sometimes hid in a cabinet so he could not find her. He did not touch her anywhere else, and he had never touched her "front part." She testified he had come into her room a "few" times and "three or four times." He also put his hands on her breasts. It hurt "[a] little" and made her feel uncomfortable when he put his part on her backside. When reminded of her interview almost two years earlier with Police Officer Marilynn Alvarado, who was present in court, the victim stated that defendant had touched her "front part" where she "[went] pee," with his "stick," "about three times." She then testified that defendant had "never" touched her front part with his stick, and then that "[h]e only touched me once," and "I think it was more than once." She stated it was hard for her to remember exactly what had happened.
During cross-examination, the victim testified that she did not recognize Officer Alvarado and had never spoken to her. She then said she had talked to Officer Alvarado "when they were going to separate [her] from [her] mother." The victim stated she had told the prosecutor that defendant had come into her room eight separate times, and each time was the same: Defendant would take his shirt and shorts off but would leave his underwear on. Defendant pulled down his underwear and touched her "back part" with his penis after pulling down her underwear. She confirmed that she had told Officer Alvarado she would not let defendant take off her underwear. She confirmed that defendant had not "poked" her through the back and that "he didn't put it inside." When asked if defendant had ever touched her "front part," she said, "He only touched me once." Defense counsel asked, "Touched you with a finger?" and she replied, "I think so." She responded, "Correct," when asked if it had been just once.
On redirect, she testified she had told the truth during her interview with Officer Alvarado. She confirmed she had told Officer Alvarado that defendant "would put it in a little. I felt him put it inside a little, then I pulled it out and I pulled my pants back on," and that had been the truth. She could not remember if defendant had done so one time or two times.
In January 2008, when the victim was seven years old, she apparently had told school officials of the abuse. The victim was examined by a Sexual Alert Response Team (SART) nurse. The victim did not disclose anything to the nurse. The nurse did not find any signs of injury or trauma to the victim's genitalia, and the victim's hymen was intact. The nurse testified that in 75 percent of cases, an examination will reveal normal findings even when sexual penetration has occurred, because some injuries to genitalia may heal within two or three days. The nurse further testified that "a lot of times . . . the child feels like there is penetration inside when in actuality what happens is there is penetration through the labia majora and the labia minora, and rather than actually just penetrating through the hymen into the vagina, it is more of an up and down between the labia versus actually into the vagina. [¶] So children will sometimes feel like to them it's inside, but it is actually penetration between the labias. Sometimes you will have a little bit—depending on if it's a digital penetration, you may have penetration through the hymen opening. The hymen does stretch a little bit, so you can have penetration through the hymen without injury."
A native Spanish-speaking police officer listened in on a pretext telephone call on January 18, 2008, from the victim's mother to defendant, conducted in Spanish. The victim's mother told defendant she was going to take the victim for a medical examination because the victim had complained about pain in her genitalia and had reported that defendant had done something to her. Defendant admitted he had had "relations" with the victim, but only one time. The jury was provided with an English translation of the conversation.
Defendant used the Spanish word "relacions," which translates literally to "relations." The police officer who conducted the interview, who was certified in the police department as a Spanish/English translator, testified that in spoken Spanish, the word means only "sexual intercourse." However, in his interview with the same police officer, defendant stated that to him "relacions" meant "playing with . . . the vagina and the dick," and "[t]hat's like a hug."
Officer Alvarado testified that she had interviewed the victim in Spanish. The jury was provided with a transcript of an English translation of the interview. The victim said that in November, defendant "wanted to put his part inside of mine." About eight times when the victim's mother had gone to work, defendant would try to take her pants down when the victim was sleeping. He took his shorts down and got on her bed. The victim stated that defendant "would take his underwear down and he wanted to put all of his part in mine," "[i]n the front." The victim continued, "And . . . he would take my pants down and when I felt that he was going to put it inside of me I would bring them up." She knew that it was "his part" because she could feel it "like a stick." He tried to put it in her front part, but she had her underwear on. He wanted to take the underwear off, but she would "bring them back up." Defendant did not hurt her. Officer Alvarado asked how far he had stuck it in, and she replied, "When he took my pants down he would stick it in. He wanted to do it quickly [¶] . . . [¶] But I wouldn't let him." The officer asked, "Okay you didn't feel that he put it in just a little?" and she replied, "No. He just wanted to put it in a little." She then stated, "I just felt that he put it in a little." She continued, "All—I felt it was that. [¶] . . . [¶] And I took it out and I put, I pulled my underwear and pants up." He sometimes touched her with his hands. Officer Alvarado asked if defendant had tried to put his part in her more than once, and she replied, "Two, just two." When he tried to put his part in her, she still had her underwear on, and he also had on underwear. Officer Alvarado asked, "And you felt that he tried to put it in a little?" and she replied, "Yes." She repeated that he did not hurt her. She also stated he did not poke her, she did not bleed, and it had not hurt to "pee" afterwards. The officer asked if defendant touched her legs or her bottom, and she said he had not. "He just, he just wanted to put his part into mine. He wanted to do that." In repeated questioning, she stated, "he wanted to put all of his part in me. But when I felt that he was going to put it in I took it out." She felt that "he was putting a, a thing in [her]" through the back. She stated, "He wanted to put it in, in here," "But I took it out." Officer Alvarado asked if it hurt, and she replied, "No. No I mean he didn't put it inside." She felt it on her bottom, but not inside her bottom. She never saw any liquid and never felt anything wet.
Officer Alvarado next interviewed defendant in Spanish. Defendant testified that he had lived in the United States two years and came from Mexico. Defendant at first said the victim had hugged and kissed him, and he had hugged and kissed her. The victim slept in the living room with her mother, and defendant and his cousin slept in the bedroom. Defendant testified he had "gone in" one time from the front, and he had used a condom. That had happened in November. He had not touched the victim's vagina with his hand. He had kissed her only on the lips, not on the breasts or vagina. Defendant insisted he had entered inside her only once. The victim did not bleed. Defendant admitted lying down with the victim three to five different times.
At one point, Officer Alvarado asked, "But that you had sex with her _____ like two times where you went in her vagina and you came? That was only two times? Defendant replied, "One time." Officer Alvarado said, "You had already told me it was eight," to which defendant replied, "Two precisely but I just—I put it there but I didn't, I didn't do anything." Defendant stated that he and the victim had "relacions" once and that he "stuck her with his dick" twice. Defendant said he always wore a condom, and that he never went into the victim's buttocks, but he did try to go through the victim's bottom twice. He admitted that he had taken the victim's "flor" (virginity). Defendant also admitted that he had touched her vagina with his hand once or twice. The interview was recorded on DVDs, which were played for the jury.
During the interview, defendant, who is illiterate, dictated a letter to the victim, in which he apologized to her and asked her forgiveness, promised not to molest her again, and thanked her for having "relacions" with him. When questioned by the police officer about his choice of words, defendant clarified that to him "relacions" meant "playing with . . . the vagina and the dick," and "[t]hat's like a hug." The jury was provided with a transcript of an English translation of the interview. However, the transcript contains numerous dashes indicating unintelligible words as well as entire questions and answers.
Defendant testified through his interpreters that during his police interview he was nervous and said things he did not mean, and "lost a lot of information" because of the language barrier. He denied ever getting into bed with the victim, exposing his penis to her, touching her vagina, or penetrating her. He admitted feeling and touching her but said it was not sexual in nature.
The jury found defendant guilty of two counts of sexual intercourse with a minor under the age of 10 (§ 288.7, subd. (a)) and two counts of lewd acts with a child (§ 288, subd. (a)).
The trial court sentenced defendant to consecutive terms of 25 years to life for counts 1 and 2, a consecutive term of eight years (the upper term) for count 3, and a consecutive term of two years (one-third the middle term) for count 4.
Additional facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
A. The Trial Court Erred in Failing to Instruct the Jury on the Lesser Included Offense of Attempted Sexual Intercourse with a Child
Defendant contends the trial court erred because it did not instruct the jury on the lesser included offense of attempted sexual intercourse with a child. As we discuss below, we conclude the trial court erred in failing to instruct the jury on attempt, and the error, compounded by confusion generated by variance in the trial court's instructions, counsel's arguments, and the verdict forms, was prejudicial.
1. Standard of Review
The determination of whether or not the trial court had the sua sponte duty to instruct the jury on a lesser included offense is a mixed question of law and fact that is predominantly legal, and which we therefore review de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
2. Additional Background
The information charged defendant with two counts of violating section 288.7, subdivision (a), sexual intercourse with a child under the age of 10.
In argument to the jury, the prosecutor stated: "The jury instruction that you will see here in just a second is that the defendant, any part of his body, as long as it touches or penetrates just slightly the vaginal or anal opening, he is guilty. Even just a slight penetration, he is guilty." (Italics added.) The prosecutor further argued, "The defendant is charged in Counts I and II with engaging in sexual penetration with a child under 10 years of age. . . . Notice how the jury instruction there does not say he is charged with— even though we typically say this, he is not charged with sexual intercourse with a child. He is not charged with having sex with a child. Sexual penetration with a child under 10 years of age. [¶] What do I have to prove to you? I have to prove that the defendant engaged in the act of sexual penetration with [the victim]. What is sexual penetration? I bolded it for you. Sexual penetration means any penetration however slight of the genitals or anal opening of the other person . . . ." (Italics added.) The prosecutor stated that the crime included penetration "by any foreign object, substance, instrument, device or any unknown object," and "[a]n unknown object includes any foreign object, substance or device or any part of the body including penis." [¶] So if you believe that the defendant, like he does say, touched the victim's vagina, stuck his finger in the vagina, that would actually satisfy all the elements of Count 1 and 2 . . . [if] his penis, his fingers, penis, any part of his body. As long as he touches, penetrates, however, slightly, the anal or . . . vaginal opening."
Defense counsel then argued that "[c]ounts 1 and 2 require either oral copulation or sexual penetration." He continued, "Counts 1 and 2 is [sic] a very precise, specific charge and that requires sexual penetration," and "penetration of the genital and anal openings of another."
Following closing arguments, the court orally instructed the jury with a definition of section 288.7, subdivision (b), as follows: "The defendant is charged in Counts 1 and 2 with engaging in sexual penetration with a child under 10 years of age or younger in violation of Penal Code Section 288.7[, subdivision] (b). [¶] To prove the defendant is guilty of this crime, the People must prove: [¶] One, the defendant engaged in an act of sexual penetration with [the victim]. [¶] Two, when the defendant did so, [the victim] was 10 years of age or younger. [¶] And at the time of the act, defendant was at least 18 years old. [¶] Sexual penetration means penetration however slight of the genital or anal opening of the other person for the purpose of sexual abuse, arousal, gratification by any foreign object, substance, instrument, or device, or by any unknown object. [¶] An unknown object includes a foreign object, substance, instrument, or device, or any part of the body, including a penis, if it is not known what object penetrated the opening. [¶] A foreign object, substance, instrument or device including any part of the body except a sexual organ."
Shortly after jury deliberations began, the trial court noted the error in instructing the jury on section 288.7, subdivision (b), instead of subdivision (a), and directed the jury to cease deliberations on counts 1 and 2. The trial court asked counsel if there was any evidence of penetration by anything other than a penis. Defense counsel stated there was not. The trial court stated it had not "heard any evidence that he penetrated her with a finger or other object."
The court then reinstructed the jury with the elements of section 288.7, subdivision (a) for counts 1 and 2, as follows: "The court read you an instruction with regards to Counts 1 and 2 which is the [section] 288.7. The court read you an instruction of [section] 288.7[, subdivision] (b) as opposed to (a). The Information in this case charged the (a) section, not the (b) section, and they are different. The (b) section talks about penetration. The (a) section talks about sexual intercourse. [¶] In this case, the evidence, if there was any, did not involve penetration by any other object other than male penis, near as I can tell and the attorneys can tell. That is the theory of the prosecution and the charge of the prosecution. [¶] Therefore, the defendant is charged in Counts 1 and 2 of engaging in sexual intercourse with a child 10 years of age or younger. [¶] To prove this, the defendant engaged in an act of sexual intercourse. [¶] The defendant did so while [the victim] was 10 years of age or younger, and the defendant was 18 years or older. [¶] Sexual intercourse is any penetration, no matter how slight, of the vaginal, genitals by the penis. Ejaculation is not required. It is not a defense that the other person consented to the intercourse. That is the (a) section. That is this case, yea or nay."
The next day, the prosecutor asked for permission to reopen closing arguments, to clarify any confusion regarding the requirements for section 288.7, subdivision (a) compared to subdivision (b). The prosecutor stated he had earlier argued to the jury "that the defendant did penetrate the victim's genitals with his finger," and "there is even some evidence that the defendant did so in his transcript." Defense counsel opposed the request, stating that further closing arguments would confuse the jury, and the court denied the prosecutor's request. The following day, the jury found defendant guilty of all charges.
Following questions about whether defendant had stuck his finger in the victim's vagina, which defendant repeatedly denied, the police officer asked, "How many times was that?" to which defendant replied, "It was also one time ___." The officer repeated, "One time?" and defendant replied, "Yeah."
The verdict forms for counts 1 and 2 did not specifically state that defendant had violated subdivision (a) of section 288.7, but stated that the jury found defendant "guilty of a violation of Section 288.7 of the Penal Code Section, sexual penetration of a minor . . . ."
Defense counsel moved for a new trial, but the court concluded the verdict reflected the conduct which occurred—a violation of subdivision (a)—and denied the motion.
3. There Was Substantial Evidence to Support a Jury Instruction on Lesser Included Offense of Attempt
The trial court must instruct the jury sua sponte on uncharged, lesser offenses of a greater, charged offense if the evidence "'raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense.' [Citations.]" (People v. Lopez (1998) 19 Cal.4th 282, 287.) This requirement applies only if such instructions are supported by substantial evidence, "'which, if accepted, by the trier of fact, would absolve [the] defendant from guilt of the greater offense' [citation] but not the lesser. [Citations.]" (Italics omitted.) (People v. Memro (1995) 11 Cal.4th 786, 871, abrogated in part on another ground as stated in People v. McKinnon (2011) 52 Cal.4th 610, 639.) Even when the defense has not requested a specific instruction, the trial court is required to instruct on "all theories of a lesser included offense which find substantial support in the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 162.)
Here, defendant was charged with two counts of sexual intercourse with a child under the age of 10, and the trial court ultimately instructed the jury that sexual intercourse was "any penetration, no matter how slight, of the vaginal, genitals by the penis." An attempt is a lesser included offense to the completed crime. (People v. Kelly (1992) 1 Cal.4th 495, 528.)
During her police interview, the victim stated that defendant "wanted to put his part inside of mine." That had happened "[l]ike eight times." Defendant would lie on her bed when she was asleep and "wanted [her] to take [her] pants down." She awakened when defendant "tr[ied] to get on her." She stated that defendant "would take his underwear down and he wanted to put all of his part in mine," "in the front." The victim further testified, "when I felt that he was going to put it inside of me I would bring them [her pants] up." She felt "a stick" when he tried to put it "[i]n the front." She said she still had her underwear on; defendant wanted to take her underwear off, "[b]ut [she] would bring them back up." She said that defendant did not hurt her. The interviewer asked how far he had stuck it in, and she replied, "When he took my pants down he would stick it in. He wanted to do it quickly. [¶] . . . [¶] "But I wouldn't let him." When asked if she felt defendant "put it in just a little," she replied, "No. He just wanted to put it in a little. [¶] . . . [¶] I just felt that he put it in a little. [¶] . . . [¶] And I took it out and I put, I pulled my underwear and pants up." She also said defendant wanted to put his penis in her vagina, and tried to "poke" her, but did not. The interviewer asked if defendant had "tr[ied] to put his part in more than one time," and the victim responded , "Two, just two." When he tried to put his part in hers, she still had underwear on. The victim felt that he tried to "put it in a little," but that it did not hurt, it did not "poke" her, and she did not bleed. The victim repeated that "he wanted to put all of his part in me. But when I felt that he was going to put it in I took it out. [¶] . . . [¶] I grabbed his hand. [¶] . . . [¶] And I pushed it back." She testified she felt "that he was putting a, a thing in me. [¶] . . . [¶] In my part." She was asked if it had hurt, and she said, "No. No I mean he didn't put it inside." She felt him touching her bottom, but she did not feel it inside her bottom. At trial, the victim denied that defendant had put his penis inside her but also said she had told the truth when she told Officer Alvarado he had "put it inside a little."
The SART examination revealed no evidence of sexual penetration, and the victim's hymen was intact. The SART nurse testified that a child may frequently be mistaken about whether there has been actual penetration when the penis has only moved between the labia. The SART nurse also testified that slight penetration does not necessarily damage the hymen.
In short, the victim's description of defendant's acts and defendant's own statements about those acts were confused and conflicting about whether defendant actually accomplished penetration, and the medical evidence was at best inconclusive. In determining whether the trial court had a sua sponte duty to instruct on a lesser included offense, we consider the evidence in the light most favorable to the defendant. (People v. Turk (2008) 164 Cal.App.4th 1361, 1368, fn. 5.) The jury could well have found on the evidence, as set forth above, that defendant did not succeed in having actual intercourse with the victim. Thus, the trial court erred in not instructing the jury on attempt.
4. The Error Was Prejudicial
We review error in failing to instruct the jury on lesser-included offenses under the harmless-error test set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Breverman, supra, 19 Cal.4th at p. 178.) To prevail under that test, the defendant must demonstrate "a reasonable probability that the error affected the outcome" of the case. (Id. at 165.) Reasonable probability under the Watson test "does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 918.) In applying the Watson test, we consider "'whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.' [Citations.]" (People v. Rogers (2006) 39 Cal.4th 826, 870.)
Here, we cannot say that the evidence supporting the verdict of actual sexual intercourse was relatively stronger than that supporting attempted sexual intercourse—the victim's testimony and statements to the police as well as defendant's own testimony and statements would have supported either verdict. Although defendant's statements during his police interview indisputably show that he had some form of sexual contact with the victim, the nature of that contact and the number of times it occurred were by no means conclusively established. Not only would the evidence have supported a verdict of attempted sexual intercourse, but also the trial court's erroneous initial instructions, counsels' arguments, and the verdict forms, as described above, were confusing and conflicting as to the elements of the charged offense. We conclude the instructional error requires reversal.
The People argue that because the jury was instructed on the lesser included offense of simple battery, the jury was not given an all or nothing choice. However, in our view, the evidence did not support an instruction on battery—defendant admitted rubbing his penis on the victim's vaginal area and buttocks. Even though he denied doing so in a sexual manner, a verdict of simple battery would have been unwarranted. Thus, the jury had no realistic alternative to convicting defendant of the more serious charge.
--------
"When a greater offense must be reversed, but a lesser included offense could be affirmed, we give the prosecutor the option of retrying the greater offense, or accepting a reduction to the lesser offense. [Citation.]" (People v. Kelly, supra, 1 Cal.4th at p. 528.) We will do so in this case.
B. Cruel and Unusual Punishment
Defendant argues that his sentence of 60 years to life constitutes cruel and unusual punishment under the Eighth Amendment of the United States Constitution and Article 1, section 17 of the California Constitution. Because we reverse his convictions of counts 1 and 2, his argument is moot.
C. The Sentencing Minute Order and Abstract of Judgment Should Be Amended to Remove the Restitution and Parole Revocation Fines
Defendant contends, and the People agree, that the minute order of the sentencing proceedings and the abstract of judgment erroneously list a restitution fine of $10,000 under section 1202.4 and a parole revocation fine of $10,000 under section 1202.45, which the trial court did not order. Because defendant must be retried or resentenced on counts 1 and 2, following which a new abstract of judgment will be issued, his contention of error is moot.
IV. DISPOSITION
Defendant's convictions on counts 1 and 2 are reversed, unless the People accept a reduction of the convictions to attempted sexual intercourse with a child. If, after the remittitur is filed in the trial court, the People do not bring defendant to retrial on counts 1 and 2 within 60 days (or, if defendant waives time, within any resulting longer time limit [see § 1382]), or if the People elect, in a writing filed in the trial court, not to retry defendant, the trial court shall proceed as if the remittitur constitutes a modification of the judgment as to counts 1 and 2 to attempted sexual intercourse with a child and shall resentence defendant accordingly. In all other respects, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
KING
J.
MILLER
J.