Opinion
G046256
05-09-2013
THE PEOPLE, Plaintiff and Respondent, v. JAVIER BIBO FLORES, Defendant and Appellant
R. Clayton Seaman, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Eric A. Swenson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 09NF0041)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Frank F. Fasel, Judge. Affirmed.
R. Clayton Seaman, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Javier Bibo Flores of one count of sexual acts with a child 10 years old or younger (Pen. Code, § 288.7, subd. (b); all further statutory references are to this code), plus one count each of misdemeanor assault, battery (§§ 240, 242) and felony child abuse (§ 273a, subd. (a)). As to the latter charge, the jury also found true an allegation of great bodily injury (§ 12022.7, subd. (d)). The court sentenced defendant to 15 years to life. He contends the court erred by not instructing the jury as to the union of act and specific intent (CALCRIM No. 251) on the first count. Although the court should have given the instruction, considering the other instructions given, the error was harmless beyond a reasonable doubt. We therefore affirm the judgment.
FACTS
Defendant is the father of the victim. One evening, after the victim's mother came home from work, defendant took the victim, then seven months of age, into the bedroom to change her. Shortly thereafter, mother heard the victim cry. She went to the bedroom where she saw defendant putting a diaper on the victim. Defendant told mother he had cleaned her too hard.
Later when defendant and mother went to bed the victim was sleeping in a nearby playpen. At some point, she started to cry. Defendant picked her up and took her into the living room. The following morning, defendant called mother and told her that something was wrong with the victim. Mother examined her and found blood inside her vagina.
Mother took the victim to a hospital emergency room. Medical examinations revealed lacerations to the vagina and anus, caused by "blunt force trauma." The victim also had a liver laceration, three fractured ribs, fractures of two bones in her left arm, bruises on her forehead, ribs, and abdomen. In addition, she suffered lacerations between the vagina and anus, and her hymen was cut. Dr. Daphne Wong testified the vaginal injuries had occurred within the previous 24 to 48 hours before her examination. She also concluded it was very likely two of the victim's ribs were fractured on or near the day the other injuries were inflicted.
After his arrest, defendant was questioned by the police. The interrogation was videotaped and transcribed. During the interrogation defendant admitted he had inserted his finger into the victim's vagina and may have inserted it into her anus. He also stated he "felt that something popped." Defendant denied he had inserted his penis into the victim's vagina and denied he obtained sexual gratification from his acts.
DISCUSSION
Defendant raises a single issue: While the trial court instructed the jury with CALCRIM No. 250 (Union of Act and General Intent), it erred by failing to instruct with CALCRIM No. 251 (Union of Act and Specific Intent) on count one. We agree the failure to give CALCRIM No. 251 or CALCRIM No. 252 (Union of Act and Intent: General and Specific Intent Together) was error, but, in the light of other jury instructions given, conclude it was harmless.
Section 288.7, subdivision (b) provides a person, "18 years of age or older who engages in . . . sexual penetration, as defined in Section 289, with a child who is 10 years of age or younger is guilty of a felony . . . ." "Sexual penetration" is defined in section 289, subdivision (k)(1) as penetration "for the purpose of sexual arousal, gratification, or abuse," making the violation of section 288.7, subdivision (b) a specific intent crime. CALCRIM No. 251 would have instructed the jury that the crime charged "require[s] proof of the union, or joint operation of act and wrongful intent." The instruction could then have been used to state the specific intent that is required for the crime. The court has a sua sponte duty to give this instruction where the crime requires a specific mental state such as involved here. (People v. Alvarez (1996) 14 Cal.4th 155, 220.) That was not done in this case.
But in reviewing any claim of instructional error, we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record. (People v. Haskett (1990) 52 Cal.3d 210, 235; People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) While the trial court failed to give CALCRIM No. 251, its other instructions informed the jury of the requirement for a concurrence of the act and specific intent. (People v. Alvarez, supra, 14 Cal.4th at p. 220, fn. omitted [no prejudice in failing to include crime of murder in instruction on concurrence of act and specific intent where "[a]nother instruction expressly required intent to kill for murder of the first degree under the theory of willful, deliberate, and premeditated killing"].)
The court gave CALCRIM No. 225, which stated in part, "[t]he People must prove not only that the defendant did the acts charged but also that he acted with a particular intent and/or mental state. The instruction for each crime explains the intent and mental state required." And, as the Attorney General points out, CALCRIM No. 1128 was given, setting forth the elements essential to convict defendant of violating section 288,7, subdivision (b). It defined the required sexual penetration as "penetration however slight of the genital or anal opening of the other person by any foreign object, substance, instrument, device or any unknown object for the purpose of sexual abuse, arousal or gratification." (Italics added.) The same instruction also stated, "[p]enetration for sexual abuse means penetration for the purpose of causing pain, injury, or discomfort." (Italics added.) We presume the jury followed the court's instructions. (People v. Thomas (2012) 53 Cal.4th 771, 832.)
Also, as noted by the Attorney General, the prosecutor stated clearly in closing argument that before the jurors could find defendant guilty of the charged crime, they would have to find a sexual intent or intent to hurt the child. The mere failure of the court to use the phrase "specific intent" does not detract from the fact that the jury was instructed to find defendant guilty of the crime, they would have to determine the penetration took place "for the purpose of sexual abuse, arousal or gratification," or "for the purpose of causing pain, injury, or discomfort." (Italics added.)
As to the latter statement, we disagree with defendant that the reference to an intent to hurt the child, as distinguished from a sexual intent, was an erroneous statement of the law. The definition of "[s]exual penetration" in section 289, subdivision (k)(1) covers "sexual arousal, gratification, or abuse." (Italics added.) And we agree with People v. White (1986) 179 Cal.App.3d 193, that "'appellant may not have had either of these "sexually motivated intents" and he still would have violated the subdivision if his intent was to hurt [his victim] sexually, i.e., in a sexual or "private" area of her body'" and "[t]he term 'abuse' imports an intent to injure or hurt badly, not lewdness . . . it is the nature of the act that renders the abuse 'sexual' and not the motivations." (Id. at p. 205.) Defendant admitted inserting his finger into the victim's vagina and, while he denied doing so for sexual gratification, it is clear from the evidence this touching caused her pain.
On the anal penetration charge (count 2), the jury found defendant guilty of the lesser included offenses of assault and battery, which do not require a sexual intent. Defendant argues that "[t]his verdict underscores the jurors' confusion and the prejudice resulting from the failure to properly instruct." We do not accept this speculation. This finding of the lesser included offense may as well be explained as leniency on the part of the jurors. (People v. Lewis (2001) 25 Cal.4th 610, 655-656 [inconsistent verdicts stand where supported by evidence regardless of whether they result from leniency, compromise, or mistake].)
DISPOSITION
The judgment is affirmed.
RYLAARSDAM, ACTING P. J. WE CONCUR: MOORE, J. THOMPSON, J.