Opinion
D069589
04-19-2017
THE PEOPLE, Plaintiff and Respondent, v. CESAR CERVANTES GARCIA, Defendant and Appellant.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN330859) APPEAL from a judgment of the Superior Court of San Diego County, Richard S. Whitney, Judge. Affirmed, and sentence vacated and remanded. Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Cesar Cervantes Garcia guilty of 12 counts of lewd acts against a child under the age of 14. (Pen. Code, § 288, subd. (a) (section 288(a)).) The jury found true allegations that Garcia committed the offenses against more than one victim (§ 667.61, subd. (b)(c)(e)), had substantial sexual conduct with a child under the age of 14 (§ 1203.066, subd. (a)(8)), and committed two of the offenses when the victim was under the age of 18 and the criminal action commenced prior to the victim's 28th birthday. (§ 801.1, subd. (a).) The trial court sentenced Garcia to 180 years to life in prison.
Undesignated statutory references are to the Penal Code.
Garcia appeals, contending the trial court erred in: (1) admitting expert testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS) and (2) responding to the jury's questions during deliberations by referring the jury back to the pattern instructions. He also asserts that: (1) the prosecutor committed misconduct during his closing argument, (2) insufficient evidence supported counts 3 and 4, and (3) the court failed to exercise its discretion in ordering that his sentences run consecutively.
The People concede the sentencing error and agree that remand is appropriate to allow the court to exercise its sentencing discretion. We agree, but reject Garcia's remaining arguments and affirm the judgment of conviction.
GENERAL FACTUAL BACKGROUND
Around 1998, Garcia married C.G. and became the stepfather of her two children, C.V. and victim J.V. From 2000 to 2013, the family lived in a house in Escondido, California. Two of C.G.'s brothers and their respective families lived at the home, including victims S.G., J.G., Giovanni G. and Alejandro G. Victim Jose M., C.G.'s cousin, also lived in the home for a period of time.
The alleged molestation first came to light in 2014, when Giovanni revealed to his cousin, C.V., that Garcia had molested him nearly 12 years earlier, when he was 12 or 13 years old. Giovanni then disclosed the abuse to other family members. Family discussions revealed that Garcia had also molested S.G., J.G. and J.V. The family went to the police station to report Garcia's molestation of the children. After Garcia's preliminary hearing, Alejandro and Jose, came forward with allegations of sexual abuse by Garcia.
We present an abbreviated factual summary to provide context for Garcia's arguments, focusing on the charges that resulted in convictions.
J.V. (Count 11)
C.G. married Garcia when J.V. was seven or eight years old. When J.V. was still in elementary school, he and Garcia were watching television in Garcia's room. No one else was home and Garcia had locked the door. Garcia liked getting massages from the children and would pay for them. This evening, Garcia put himself on top of J.V. and said he would give J.V. a massage. Garcia pulled J.V.'s shirt up, straddled him behind his rear and massaged his lower back. J.V. felt Garcia rock back and forth and Garcia's erect penis touch against J.V.'s rear over J.V.'s boxers. Garcia's rocking then escalated to thrusting. Garcia jumped up to unlock the door when one of the doors rattled.
Giovanni (Count 12)
Giovanni and his family moved in with Garcia's family when he was eight or nine years old. Garcia took Giovanni wherever Giovanni wanted and bought him almost anything he asked for. Garcia molested Giovanni on a few different occasions when Giovanni was 12 or 13 years old. Giovanni remembered Garcia standing closely behind him to teach him how to play "foosball." Giovanni felt Garcia's penis against his buttocks. Another time, Garcia pushed Giovanni face down on Garcia's bed and pressed his body against Giovanni. Giovanni felt Garcia's erect penis against his buttocks. Garcia tried pulling Giovanni's shorts down, but Giovanni got scared and ran away.
J.G. (Counts 1 to 6)
J.G. and his family moved in with Garcia's family when he was a year old. Garcia bought him video games, clothes and food. He also took J.G. to fun places such as Knott's Berry Farm. The first abuse occurred when J.G. was about seven or eight years old. After J.G. sat on Garcia's lap, Garcia kissed him, bit his lip and rubbed his buttocks. Garcia did this more than 10 times, the last time occurred when J.G. was eight years old. On more than 20 occasions, Garcia rubbed his penis against J.G.'s buttocks. J.G. was eight, nine or 10 years old. On other occasions, Garcia would make J.G. masturbate him until he ejaculated. J.G. did not tell anyone what was happening because it was embarrassing and he feared being called gay.
S.G. (Counts 7 to 10)
S.G. had fun outings with Garcia starting when he was about seven years old. Garcia also bought him toys and food. The sexual abuse began when S.G. was eight or nine years old and lasted nearly 10 years. During the first incident, Garcia playfully chased S.G. and kissed him on his lips. When S.G. was 11 or 12 years old, Garcia made S.G. sleep with him in bed. Garcia would pull his pants down and rub his penis on S.G.'s rear until Garcia ejaculated. This occurred about once a month. Once, Garcia attempted to penetrate S.G. with his penis, but S.G. pushed him off. Garcia also bit and sucked on S.G.'s buttocks. Over the years, S.G. masturbated Garcia until Garcia ejaculated at least once a week, or over one hundred times. The last incident occurred when S.G. was 16 years old and involved S.G. masturbating Garcia.
DISCUSSION
I. CSAAS TESTIMONY
A. Additional Background
The People moved in limine to admit expert testimony about child molest victims to dispel jury misconceptions. Over defense counsel's foundation and relevancy objections, the trial court concluded that testimony regarding delayed disclosure and grooming were relevant, but precluded testimony bolstering the credibility of the victims.
At trial, the People called Catherine McLennan as an expert witness on child sexual abuse. McLennan's testimony was relatively brief, encompassing about 23 pages of the reporter's transcript. After reviewing her qualifications, McLennan explained how forensic interviews are generally conducted. She performed the forensic interviews of S.G., J.G. and Jose and noted that the children did not volunteer information; rather, they responded to her questions.
McLennan testified that victims commonly delay disclosure due to shame and embarrassment, or the victim's relationship to the abuser. Additionally, child victims may not disclose the whole story right away and later reveal additional details (incremental disclosure). "Grooming" refers to a perpetrator's strategy of doing fun things with a child or giving the child gifts, because children are less likely to disclose abuse if they have accepted tokens of affection from the perpetrator. Over defense counsel's hearsay objection, McLennan stated: "If you ask anyone that does what I do for a living, forensic interviewing, you will hear that boys, particularly adolescent boys, are difficult interviews to do."
B. Analysis
Replying on People v. Jeff (1988) 204 Cal.App.3d 309, 337-338 (Jeff) and People v. Bledsoe (1984) 36 Cal.3d 236, 251 (Bledsoe), Garcia contends that McLennan improperly opined on the credibility of the victims; thus, violating his constitutional right to a fair trial. Garcia notes that his defense did not involve showing that the victims did not act like other child molestation victims. Accordingly, he argues that McLennan's testimony should have been excluded because it conveyed the opinion that the jury should accept the victims' versions of what happened because their behavior (reluctant to disclose information, difficult to interview, not disclosing everything at one time) was like those of other victims of child sexual abuse, and thus they must be telling the truth. We disagree.
In Bledsoe, our Supreme Court held that expert testimony that the victim was suffering from rape trauma syndrome was inadmissible for the purpose of establishing that a rape had in fact occurred based on the trauma that the victim exhibited. (Bledsoe, supra, 36 Cal.3d at p. 251.) The Bledsoe court pointed out, however, that evidence of rape trauma syndrome might properly be admitted for a different purpose, namely "to rebut misconceptions about the presumed behavior of rape victims" (id. at p. 248), such as the misconception that a victim's "delay in reporting the sexual assault . . . is inconsistent with her claim of having been raped." (Id. at p. 247.)
Courts later extended Bledsoe's reasoning to CSAAS evidence. (See People v. Bowker (1988) 203 Cal.App.3d 385, 391-394.) As our high court explained, "expert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation. [Citations.] 'Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior. . . . The great majority of courts approve such expert rebuttal testimony.' " (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 (McAlpin), fn. omitted.)
Evidence Code section 801, subdivision (a) permits the introduction of testimony of a qualified expert related to a subject that is sufficiently beyond common experience that the opinion of the expert would assist the trier of fact. " '[T]he admissibility of expert opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion testimony would ever be heard. Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would "assist" the jury. It will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when "the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness." ' " (McAlpin, supra, 53 Cal.3d at pp. 1299-1300.) We review a trial court's decision to admit expert testimony for abuse of discretion. (Id. at p. 1299.)
Here, Giovanni and J.V. waited over 10 years to report the abuse. While Garcia may not have focused on the delay in reporting the crimes as part of his defense during closing argument, defense counsel asked some of the victims during cross-examination why they did not report the abuse after it occurred, or warn the other children to stay away from Garcia. Thus, McLennan's testimony was admissible to explain that " 'delayed reporting is not inconsistent with the secretive environment often created by an abuser who occupies a position of trust.' " (People v. Sandoval (2008) 164 Cal.App.4th 994, 1002.) Additionally, appellate courts in California have consistently found expert testimony about CSAAS admissible to rehabilitate a complaining witness's credibility. (E.g., People v. Perez (2010) 182 Cal.App.4th 231, 245.) Accordingly, McLennan's testimony assisted the trier of fact by giving the jurors information they needed to objectively evaluate the credibility of the victims. (McAlpin, supra, 53 Cal.3d at p. 1302.)
In summary, McLennan's testimony never went beyond its accepted rehabilitative, myth-dispelling function. Accordingly, the trial court did not abuse its discretion in allowing this testimony. Moreover, McLennan stated that her testimony was not an opinion on the credibility of any witness. Additionally, the court instructed the jury with CALCRIM No. 303 as follows: "During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other. [¶] Testimony by Catherine McLennan was offered and may be considered by you only for the purpose of understanding and explaining the behavior of one or more of the alleged victims in this case and not as proof that the molestation occurred as to any one or more of the alleged victims." Garcia has not cited anything in the record to undermine our confidence that the jury followed this instruction in reaching its verdict. (People v. Sanchez (2001) 26 Cal.4th 834, 852 [jurors are presumed to understand and follow the trial court's instructions].)
This case is distinguishable from Jeff, supra, 204 Cal.App.3d 309. In Jeff, the victim's treating therapist described the child's symptoms in great detail, including matters such as specific nightmares of the child. (Id. at p. 335.) The prosecutor then presented testimony by an expert who had not interviewed the child, asking "hypothetical" questions incorporating the exact same facts and details as related to the jury by the therapist, and who explained to the jury that the emotions, fears, and reactions exhibited by the child were symptoms exhibited by child molest victims. (Id. at pp. 335-336.) The reviewing court decried this as a subterfuge that improperly used expert testimony to prove a molestation occurred because the victim "fits the mold perfectly." (Id. at pp. 338-339.)
Garcia next argues that the trial court erred in overruling defense counsel's hearsay objection to the following testimony: "If you ask anyone that does what I do for a living, forensic interviewing, you will hear that boys, particularly adolescent boys, are difficult interviews to do." He contends that this testimony about what other forensic interview experts have said about interviewing young boys constituted hearsay for which no exception applied. Rather, the testimony was offered for its truth, to inform jurors that these other experts, like McLennan, believed conducting interviews with adolescent boys was difficult.
" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) On direct examination, an expert witness may state both the reasons for his or her opinion and the matters on which it is based. (Evid. Code, § 802; People v. Catlin (2001) 26 Cal.4th 81, 137 [physician may base opinion on inadmissible hearsay, such as the opinion of another physician].) Accordingly, "an expert witness whose opinion is based on [] inadmissible matter can, when testifying, describe the material that forms the basis of the opinion." (People v. Gardeley (1996) 14 Cal.4th 605, 618 (Gardeley), overruled on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.) We review the trial court's determination as to the admissibility of evidence (including the application of the hearsay rule) for abuse of discretion. (People v. Rowland (1992) 4 Cal.4th 238, 264.)
People v. Sanchez disapproved Gardeley "to the extent it suggested an expert may properly testify regarding case-specific out-of-court statements without satisfying hearsay rules." (People v. Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.)
Here, McLennan testified, without objection, that interviews are difficult for children in general. Counsel later asked McLennan about studies and literature regarding difficulties that boys have in disclosing sexual abuse. To this question, McLennan responded:
"[The Witness]: There is lot [sic] of discussion about it in the literature. And it's very difficult to assess and obtain percentages about people that don't disclose because if they haven't disclosed we can't count them. If you ask anyone that does what I do for a living, forensic interviewing, you will hear that boys, particularly adolescent boys, are difficult interviews to do because—
"[Defense Counsel]: I'll object. That's nonresponsive as relates to the literature and the opinion. And improper hearsay.
"The Court: Overruled. I'll allow it.
"The Witness: Because it appears that males have more difficulty in seeing themselves as a victim, of taking on that role. It is culturally expected of males in—certainly in this country, to be able to take care of themselves and to resist that kind of abuse. There is in very young males a fear sometimes that because it's been a male on male act that this now means that they are gay, and that's frightening to them. Children say that very frequently in the course of an interview, little boys, what does this mean about their sexuality. They—obviously not in those words, but that is a difficult population."
The format of the statement shows that McLennan used the purported hearsay material to support her opinion that adolescent boys are difficult to interview. (People v. Sanchez, supra, 63 Cal.4th at p. 675 ["An expert's testimony as to information generally accepted in the expert's area, or supported by his own experience, may usually be admitted to provide specialized context the jury will need to resolve an issue."].) McLennan's follow-up testimony supports this conclusion. McLennan did not purport to repeat the opinions of unnamed persons whose expert qualifications were unknown. Accordingly, her testimony did not implicate the confrontation clause and the trial court did not err in overruling defense counsel's hearsay objection.
II. PROSECUTORIAL ERROR
A. Additional Background
Without objection, the prosecutor argued as follows:
"But, use your common sense. You read these things and you look at the jury instructions and you see that when you begin to pull all this together that those boys have come forward with great difficulty, great difficulty, and I don't think I need to elaborate on that at any length. It was extremely painful and extremely hard for them to go through this process from the very beginning, yet there were such strange similarities. [¶] And they were credible when they told you that they had to get—they hadn't gotten their stories straight, if that's the defense in the case. The last thing any of them wanted to do was talk about the details of this with each other, because they told you, 'if it gets out that he had his penis up to my butt, I'm gay.' "
"Look at the way all this unraveled as it came through. If it weren't for [J.V.] and Gio none of this would be happening, none of it. It was only because they were brave and came forward and disclosed that more harm was prevented."
"The whole thing is tragic in its own way. You look at the pain that [J.V.] and Giovanni told you about, that they have come into as young adult men because of what happened to them. And what they've described is far more limited than what the younger victims have experienced. And you can't help but be worried about them for the future and what they are going to have to deal with down the road. It's a very tragic thing."
B. Analysis
Garcia asserts that the above argument constituted prosecutorial error because it elicited sympathy for the victims and vouched for the credibility of the prosecution's witnesses. He concedes that defense counsel did not object to the argument, but argues that his claim is not forfeited because an objection would have called more attention to the prosecutor's remarks, making the prejudice from them worse. Alternatively, he contends that he received ineffective assistance based on defense counsel's failure to object.
"Closing argument in a criminal trial is nothing more than a request, albeit usually lengthy and presented in narrative form, to believe each party's interpretation, proved or logically inferred from the evidence, of the events that led to the trial. It is not misconduct for a party to make explicit what is implicit in every closing argument." (People v. Huggins (2006) 38 Cal.4th 175, 207.) During closing argument, a prosecutor has " 'wide latitude to discuss and draw inferences from the evidence at trial. [Citation.] Whether the inferences the prosecutor draws are reasonable is for the jury to decide.' " (People v. Smith (2003) 30 Cal.4th 581, 617.) "When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' " (People v. Centeno (2014) 60 Cal.4th 659, 667 (Centeno).)
"Under California law, a prosecutor commits reversible misconduct if he or she makes use of 'deceptive or reprehensible methods' when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant's specific constitutional rights . . . but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action ' "so infected the trial with unfairness as to make the resulting conviction a denial of due process." ' " (People v. Riggs (2008) 44 Cal.4th 248, 298.)
Generally, a defendant may not complain of prosecutorial error on appeal unless defense counsel timely objected and requested that the jury be admonished to disregard the impropriety. (People v. Maciel (2013) 57 Cal.4th 482, 541.) "The defendant's failure to object will be excused if an objection would have been futile or if an admonition would not have cured the harm caused by the misconduct." (Centeno, supra, 60 Cal.4th at p. 674.) Nonetheless, " '[a] defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel.' " (Ibid.)
As a preliminary matter, all of Garcia's challenges are forfeited for the failure of his defense counsel to object below and request curative admonitions. (See 5 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Trial, § 771, p. 1198 [prosecutor's injection of personal opinion about credibility of witness is the type of error "often held harmless or waived by failure to object or cured by the court's admonition"].) Nevertheless, in light of Garcia's secondary argument that he received ineffective assistance of counsel, we reach the merits of his challenges.
Garcia asserts that the prosecutor improperly offered an opinion on the credibility of the victims, thereby communicating that she "stood behind their credibility and the jurors should too. "[A] prosecutor may properly argue a witness is telling the truth based on the circumstances of the case." (People v. Boyette (2002) 29 Cal.4th 381, 433.) What a prosecutor may not do is to suggest that he or she has information undisclosed to the jury bearing on the issue of credibility, veracity, or guilt. The danger in such remarks is that the jurors will believe that some evidence, known only to the prosecutor, has been withheld from them. (People v. Green (1980) 27 Cal.3d 1, 35, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 241.)
Here, in the context of describing the victims' difficulty in discussing the sexual abuse, the prosecutor stated: "And they were credible when they told you that they had to get—they hadn't gotten their stories straight, if that's the defense in the case." Rather than vouching for the credibility of the victims, the prosecutor pointed out inconsistencies might exist in the victims' testimony because the victims had not rehearsed their stories. The prosecutor's comment did not suggest that she had undisclosed information about the credibility of the victims; thus, the comment fell under the purview of permissible argument. Because the prosecutor did not prejudicially vouch for the credibility of the victims, defense counsel's failure to object did not amount to ineffective assistance of counsel. (People v. Weaver (2001) 26 Cal.4th 876, 931 [counsel is not ineffective for failing to make a meritless objection or motion].)
Garcia next contends that the prosecutor's argument improperly encouraged the jury to feel sympathy for the victims, suggesting that this emotion guide their decision. Based on our review of the entire record in this case, we conclude there is no reasonable probability that the "prosecutor's brief and isolated comments [regarding the braveness of the victims and the tragedy that befell them] could have influenced the jury's guilt determination." (People v. Medina (1995) 11 Cal.4th 694, 760.) The trial court instructed the jury with CALCRIM No. 200, stating: "Do not let bias, sympathy, prejudice, or public opinion influence your decision," and if the attorneys' comments conflict with the court's instructions, "you must follow my instructions." The court told the jury that "[n]othing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence." (CALCRIM No. 222.) The jurors were also told that they alone decided the facts (CALCRIM No. 200) and witness credibility (CALCRIM No. 226). We presume the jurors understood and followed the court's instructions. (People v. Sanchez, supra, 26 Cal.4th at p. 852.) Because we find no prejudice, Garcia's ineffective assistance of counsel claim fails. (Strickland v. Washington (1984) 466 U.S. 668, 697 ["a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies"].)
III. JURY QUESTIONS
A. Additional Background
During deliberations, the jury asked several questions. At issue are the court's responses to three questions.
Jury note 6 inquired: "In terms of the charge #3-4 'penis to anus', how would that differ from 'penis to buttocks' on other charges." After an off-the-record discussion, the court read the proposed response on the record: "The Court cannot give anatomical definitions. So the jury as the trier of fact needs to evaluate the evidence as it relates to the charges." After neither counsel objected to the proposed response or indicated a desire for further discussion, the court went off the record.
Jury note 9 asked: "Does requisite intent refer to 'mere touch' or 'masturbate'?" "Does requisite intent refer to mean intent to touch penis to body intentionally?" "Does requisite intent refer solely to the intentional touch of one person[']s genitals to another person[']s body?" "What is the definition of 'requisite intent'?" In response, the court stated on the record, without objection:
"First, I want to refer you to all the jury instructions, and specifically the substantive instructions which discuss the elements required for the crime. [¶] But, the union of act intent, specific intent, mental state is contained in jury instructions [sic] 251. [¶] The crimes and/or other allegations charged in this case require proof of the union or joint operations of the act and wrongful intent. For you to find a person guilty of crimes of [] section 288(a), lewd act upon a child in, counts 1 through 14, and [] section 288[, subdivision] (c)(1), lewd act upon a child 14 or 15 years of age in counts 15 through 17, or to find that allegations of multiple victims, pursuant to [] section 667.61[, subdivisions] (b)(c)(e), or [] section 1203.06687 [sic], and substantial sexual conduct, pursuant to section 1203.066[, subdivision] (a)(8), to be true, that person must not only intentionally commit the prohibited act, but must do so with specific intent and/or mental state. The act and the specific intent and/or mental state required are explained in the instruction for that crime or allegation. And we've given you the instructions which explain that crime and/or allegation. And it does define what specific intent means with regards to the allegation of crime or the allegation—of the allegation."
Jury note 10 asked: "Please provide definition of 'requisite intent.' " The trial court tentatively indicated that it would read jury instructions 1110 and 1112, and then inquire of the foreperson whether it could do anything else to assist the jury. The prosecution and defense counsel agreed that the court should ask the jury if there was anything else that the court could add. After neither counsel objected to the reading of the two jury instructions, the trial court read the two instructions to the jury.
When asked whether the court could provide further assistance, the jury foreperson stated that the jurors were confused about the instruction for substantial sexual conduct under section 1203, pointing the court to the third paragraph of the instruction: " 'as any touching or contact however slight of the genitals of either the victim or the offender with the requisite intent.' " The court recessed to discuss the matter with counsel. In discussing a response, defense counsel suggested that the court tell the jury the definition of the intent required for each of the offenses, because the jury had to decide whether Garcia had sexual intent if his genitals were touching the victims while he massaged the victim. The trial court offered counsel the opportunity to present additional argument to the jury, but both declined. After additional discussion with counsel, the trial court responded to the jury:
"I have reviewed it with the attorneys and the answer we have come up with for the jury with regards to trying to further explain that third paragraph of that jury instruction is, the requisite intent that that sexual conduct instruction is referring to is the same intent that I just read to you, and it was in those last two substantive jury instructions; okay? And the word requisite, of course, means required."
B. Legal Principles
Trial courts have a duty to help a jury understand the legal principles it is asked to apply (People v. Beardslee (1991) 53 Cal.3d 68, 97) and to attempt to clear up any instructional confusion expressed by the jury. (§ 1138; People v. Gonzalez (1990) 51 Cal.3d 1179, 1212, superseded by statute on other grounds in In re Steele (2004) 32 Cal.4th 682, 691.) "Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information." (Beardslee, at p. 97.) A violation of section 1138 warrants reversal only if prejudice appears. (Ibid.)
" 'Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' " (People v. Guiuan (1998) 18 Cal.4th 558, 570.) Thus, "[a] defendant may forfeit an objection to the court's response to a jury inquiry through counsel's consent, or invitation or tacit approval of, that response." (People v. Ross (2007) 155 Cal.App.4th 1033, 1048.)
C. Analysis
Garcia notes that the jury asked for explanations of the intent required for the crimes, and the difference between the allegations in counts 3 and 4, and the allegations referencing the victims' buttocks. Garcia contends the trial court erred by simply referring the jury back to the pattern instructions. Garcia forfeited any alleged error by failing to object to the trial court's responses. Even if the claims had been preserved for review, we find no error.
Jury note 6 inquired: "In terms of the charge #3-4 'penis to anus', how would that differ from 'penis to buttocks' on other charges." Without objection, the trial court told the jury that it could not give anatomical definitions and that they would need to evaluate the evidence as it related to the charges. Garcia contends the proper answer should have been to inform the jury that the alleged acts were different and the allegations encompassed different body parts. He claims that the lack of an appropriate response misdirected the jury because the prosecutor told jurors in argument that counts 3 and 4 constituted acts involving Garcia's penis and the victim's buttocks. We find no error.
Counts 3 and 4 alleged that Garcia touched his penis to J.G.'s anus, first time and last time. Counts 1 and 2 alleged that Garcia massaged J.G's buttocks, first time and last time. Counts 11 and 12 alleged that Garcia pressed his penis against the buttocks of two other victims. Thus, a number of counts referenced Garcia's contact with either the anus or buttocks of a victim. Generally, the trial court has a duty to give sua sponte "amplifying or clarifying instructions ' "where the terms used [in an instruction] have a technical meaning peculiar to the law." ' " (People v. Richie (1994) 28 Cal.App.4th 1347, 1360.) Conversely, when a term " 'is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request.' " (People v. Rowland (1992) 4 Cal.4th 238, 270-271.)
Here, Garcia does not contend that the legal meaning of the words "anus" or "buttocks" are different from the ordinary meaning of these words. Thus, the trial court had no duty to provide a clarifying instruction. Rather, the trial court properly exercised its discretion by telling the jury to evaluate the evidence as it related to the charges. During closing argument, the prosecutor correctly argued that counts 3 and 4 pertained to the first and last time that Garcia touched his penis to J.G.'s anus. However, the prosecutor also suggested that these counts pertained to Garcia rubbing or thrusting his penis against J.'s buttocks. As we discuss below, any difference between the allegations of the accusatory pleading and the proof was immaterial because the body part of the victim touched by Garcia is not an element of the crime. (Post, Pt. IV.B.)
Garcia's reliance on People v. Loza (2012) 207 Cal.App.4th 332 (Loza) and People v. Hodges (2013) 213 Cal.App.4th 531 (Hodges) is misplaced. Loza was a murder case in which the trial court instructed the jury that a person who aided and abetted another to commit a crime is "equally guilty" of that crime. (Loza, at pp. 336, 348.) On appeal, one defendant argued that, in response to the jury's questions regarding the intent required for aider and abettor liability, the trial court failed to adequately clarify its instructions when it simply referred the jury back to the original instruction. (Id. at pp. 336, 349.) The Loza court noted that the "equally guilty" language could mislead the jury by suggesting it was not required to determine the intent of an aider and abettor separately from that of the perpetrator. (Id. at p. 355.)
In Hodges, the jury "sought legal guidance on whether defendant could be convicted of robbery if they determined he 'surrendered' the goods prior to the use of force." (Hodges, supra, 213 Cal.App.4th at p. 541.) The Hodges court concluded that the trial court's response to the jury "was misleading because it allowed the jury to conclude defendant was guilty of robbery without regard to whether defendant intended to permanently deprive the owner of the property at the time the force or resistance occurred." (Id. at p. 543.)
Both Loza and Hodges involved misleading responses to a jury's inquiry. Here, the original instructions were full, complete and not misleading. Also, nothing in the trial court's response could have misled the jury.
Jury note 9 asked a number of questions regarding "requisite intent." After the court responded, without objection, jury note 10 asked the court to provide a definition of " 'requisite intent.' " Without objection, the trial court read to the jury the instructions for a lewd or lascivious act on a child either under, or over 14 years-old. (CALCRIM Nos. 1110 & 1112.) These instructions told the jury that Garcia must have "committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child." Based on the court's inquiry, the jury foreperson then indicated that the jurors were confused about the third paragraph of the instruction for substantial sexual conduct, which stated: " ' Masturbation' is defined as any touching or contact, however slight, of the genitals of either the victim or the offender, with the requisite intent." After additional discussion with counsel, the trial court told the jury, without objection, that the term "requisite intent" referred to the same intent as in the instructions it just read and that the word "requisite" meant required.
Garcia contends the trial court erred because the jurors did not understand that the same intent was required for all the lewd act charges; e.g., penis to anus, penis to buttocks, massaging buttocks. He claims the trial court should have explained that the instructions' references to the required intent and willfully touching of the child's body extended to each of the alleged acts and that each of these acts had to be done with the required intent as defined in the instructions.
Garcia's argument ignores the jury foreperson's explanation that the jurors were confused with the undefined term "requisite intent" for masturbation as used in the instruction regarding the substantial sexual conduct allegations. In response to this question, the trial court properly told the jury that the term "requisite intent" referred to the same intent as defined in CALCRIM Nos. 1110 and 1112. Even assuming the jury also experienced confusion regarding the intent required for other charges, the trial court properly referred to the pattern instructions which defined the required intent for all of the lewd act charges. Thus, assuming without deciding, that Garcia preserved this issue for review, we conclude that the trial court properly exercised its discretion. In referring to the previously given instructions, the trial court did not fail in its duty under section 1138 to aid the jury in understanding the legal principles it was asked to apply. The trial court properly and adequately responded to the jury's question.
IV. SUFFICIENCY OF EVIDENCE
A. Legal Principles
The elements of a violation of section 288(a) are (1) willful touching of a child, (2) who is under 14 years old, and (3) with the intent to arouse or gratify the lust or sexual desires of either the perpetrator or child. (§ 288(a); People v. Martinez (1995) 11 Cal.4th 434, 442; CALCRIM No. 1110.) "[S]ection 288 is violated by 'any touching' of an underage child committed with the intent to sexually arouse either the defendant or the child." (Martinez, at p. 442.) "Nothing in [the statutory] language restricts the manner in which such contact can occur or requires that specific or intimate body parts be touched. Rather, a touching of 'any part' of the victim's body is specifically prohibited." (Ibid.) "[T]he 'gist' of the offense has always been the defendant's intent to sexually exploit a child, not the nature of the offending act." (Id. at p. 444.) Accordingly, the form, manner, or nature of the offending act is not restricted and a conviction does not depend upon contact with the bare skin or private parts of the defendant or the victim. (Ibid.)
The prosecution must prove all elements of the charged offense and all facts necessary to establish each of those elements beyond a reasonable doubt. (People v. Flood (1998) 18 Cal.4th 470, 524.) When we review a judgment for sufficiency of the evidence supporting the verdict, we presume every fact that the jury could reasonably deduce from the evidence and view the whole record in the light most favorable to the judgment. (People v. Davis (1995) 10 Cal.4th 463, 509.) Substantial evidence includes circumstantial evidence and related reasonable inferences drawn from that evidence. (People v. Clark (2011) 52 Cal.4th 856, 943.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Little (2004) 115 Cal.App.4th 766, 771.) " '[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (People v. Hatch (2000) 22 Cal.4th 260, 272, italics omitted.)
B. Analysis
The information alleged in counts 1 through 6 that Garcia committed lewd acts against J.G. in violation of section 288(a). Counts 1 and 2 specified that the alleged touching consisted of massaging J.G.'s buttocks, first time and last time. Counts 3 and 4 specified that the alleged act was "touching penis to anus" first time and last time. Counts 5 and 6 specified that the alleged act was putting J.G.'s hand on Garcia's penis, first time and last time.
Garcia contends the evidence is insufficient to support the finding that he committed two acts of touching his penis to J.G.'s "anus" when J.G. was under the age of 14 years as alleged in counts 3 and 4. Garcia notes that although there was testimony that he pressed his penis to J.G.'s anus, there was no testimony as to when this occurred, e.g., whether it was when J.G. was under the age of 14 years, or if this happened more than one time. The People disagree. Alternatively, the People contend Garcia's claim is more properly characterized as a variance between pleading and proof rather than a failure to prove an element of the offenses. They assert Garcia forfeited his claim of variance by his failure to raise it at trial. Additionally, Garcia failed to show the variance was so substantial as to have misled him in the preparation of his defense. We agree with the People.
J.G. was born in June 2000. The first abuse, kissing and rubbing J.G.'s buttocks, occurred when J.G. was about seven or eight years old. Garcia did this more than 10 times, the last time occurred when J.G. was eight years old. On more than 20 occasions, Garcia rubbed his penis against J.G.'s buttocks. J.G. was eight, nine or 10 years old when this first occurred. The last instance of abuse occurred in January or February 2014 (when J.G. was 13 years old) and consisted of Garcia making J.G. masturbate him. Regarding penis to anus contact, J.G. testified on direct examination as follows:
"Q. Did he ever put his penis inside your buttocks?
"A. No
"Q. He never put [his penis] inside your anus?
"A. No.
"Q. Did he try?
"A. Yes.
"Q. And how did that not happen?
"A. I didn't let him.
"Q. How did you stop him?
"A. Pushed him away.
"Q. Did it hurt?
"A. I never let it happen.
"Q. Okay. You never let him—
"A. Yeah.
"Q. —Inside? So you'd push him away when you would feel his penis pressing up against your anus?
"A. Yes."
Defense counsel did not ask J.G. about penis to anus contact during cross-examination. Rather, defense counsel inquired about Garcia putting his penis on J.G.'s buttocks. With J.G. responding that this occurred more than six or seven times. J.G. also testified that he did not know whether Garcia put his penis between the butts of the other victims, but that this had happened to him. J.G. later testified about an incident where Garcia took J.G. to his room, grabbed him tight and "put his penis between my buttocks and he was just being rough."
J.G. testified that the penis to buttocks contact stopped when he turned 14 years-old, "like around August [2014] I think." He also testified that the last instance of abuse occurred in January or February 2014 (when J.G. was 13 years old) and consisted of Garcia making J.G. masturbate him. From this inconsistent testimony the jurors could have reasonably concluded that all abuse ended before J.G. turned 14 in June 2014. This conclusion is amply supported by evidence that the family reported the crimes in March 2014 and police arrested Garcia in April 2014, when J.G. was still 13 years old.
J.G. testified affirmatively when asked whether Garcia had tried to put his penis inside J.G.'s anus. Although counsel never asked J.G. how many times this happened, based on the questions tendered and J.G.'s answers, the jury could have reasonably concluded that the penis to anus contact occurred on more than one occasion. Namely, J.G. confirmed on direct examination that he would push Garcia away when he "would feel [Garcia's] penis pressing up against [his] anus." J.G. testified that Garcia did this act on more than 20 occasions.
Instead, Garcia notes that unanimity is required in criminal cases (People v. Jones (1990) 51 Cal.3d 294, 321), arguing that if we adopt the People's position, jurors could not have differentiated the acts; some may have thought counts 3 and 4 alleged the same acts as alleged in counts 5 and 6 and other jurors may have thought the acts were different. Here, the trial court properly instructed the jury on the unanimity requirement with a version of CALCRIM No. 3500, which did not list the body part that Garcia allegedly touched. Specifically, the unanimity instruction provided in relevant part:
"The defendant is charged with Lewd Act on a Child in Count One (Victim [J.G.]) sometime during the period of June 12, 2007 and June 11, 2009.
"The defendant is charged with Lewd Act on a Child in Count Two (Victim [J.G.]) sometime during the period of June 12, 2007 and June 11, 2009.
"The defendant is charged with lewd Act on a Child in Count Three (Victim [J.G.]) sometime during the period of June 12, 2008 and June 11, 2011.
"The defendant is charged with Lewd Act on a Child in Count Four (Victim [J.G.]) sometime during the period of June 12, 2008 and June 11, 2011.
"The defendant is charged with Lewd Act on a Child in Count Five (Victim [J.G.]) sometime during the period of June 12, 2011 and June 11, 2013.
"The defendant is charged with Lewd Act on a Child in Count Six (Victim [J.G.]) sometime during the period of June 12, 2011 and June 11, 2013.
"The People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed."
Even assuming Garcia did not forfeit the variance by his failure to raise it below, any variance between pleading and proof in counts 3 and 4 was immaterial because the information adequately put him on notice of the charges against him. Jury confusion is unlikely as the other counts in the information pertaining to J.G. did not involve Garcia's penis and J.G.'s buttocks or anus. Counts 1 and 2 specified that the alleged touching consisted of massaging J.G.'s buttocks, first and last time. Counts 5 and 6 specified that the alleged act was putting J.G.'s hand on Garcia's penis, first time and last time. Moreover, Garcia does not claim that the variance misled him in preparing his defense or created a likelihood of double jeopardy. (In re Michael D., supra, 100 Cal.App.4th at pp. 127-128 [variance immaterial where evidence showed minor drew a weapon against person not named as the victim in the petition]; People v. Powell (1974) 40 Cal.App.3d 107, 123-124 [variance immaterial where information charged murder occurred in Los Angeles County and evidence established fatal shot was fired in Kern County].)
V. SENTENCING
A. Additional Background
At the sentencing hearing, defense counsel argued that the court had the discretion to order concurrent sentences. The prosecutor argued that section 667.61 "clearly mandate[d]" that the trial court run Garcia's sentences consecutively. The trial court adopted the prosecutor's position and sentenced Garcia to a term of 180 years to life, consisting of consecutive terms of 15 years to life for 12 violations of section 288(a). The court stated the consecutive sentences were "prescribed by law and mandated under [] section 667.61[, subdivision] (i)" because the crimes involved separate victims or the same victim on separate occasions. The court further noted it had "little to no discretion" in sentencing Garcia.
B. Analysis
Garcia contends the trial court failed to exercise its discretion in ordering that his sentences run consecutively and remand is required to allow the trial court to exercise its discretion. Respondent concedes that remand is appropriate to allow the court to exercise its sentencing discretion in determining whether Garcia should serve his terms concurrently or consecutively. We concur.
Section 667.61, subdivision (i), mandates consecutive sentencing for an enumerated list of felony sex offenses if the crimes involve separate victims or involve the same victim on separate occasions. Garcia suffered 12 convictions for committing lewd acts under section 288(a). As relevant here, the eligible offenses for mandatory consecutive sentencing are referred to as those listed in section 667.61, subdivision (c)(1) to (7). (§ 667.61, subd. (i).) Section 288(a) is listed in section 667.61, subdivision (c)(8); thus, a violation of section 288(a) is not an eligible offense for mandatory consecutive sentencing. Thus, the trial court erred in finding that consecutive sentences were mandatory. Rather, "[a]bsent an express statutory provision to the contrary, section 669 provides that the trial court shall impose either concurrent or consecutive terms for multiple convictions." (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262.) In exercising its discretion, the trial court is to consider the factors set forth in California Rules of Court, rule 4.425. (Ibid.)
The matter must be remanded to the trial court to allow it to exercise its discretion in determining whether Garcia should serve his terms concurrently or consecutively. (People v. Brown (2007) 147 Cal.App.4th 1213, 1228 ["Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion."].)
DISPOSITION
The judgment of conviction is affirmed but the judgment is reversed as to defendant's sentence. The sentence is vacated and the case remanded for resentencing.
NARES, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.