Opinion
G057190
08-03-2020
THE PEOPLE, Plaintiff and Respondent, v. PEDRO ACUNA HERNANDEZ, Defendant and Appellant.
Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Michael J. Wise, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15HF0972) OPINION Appeal from a judgment of the Superior Court of Orange County, Julian Bailey, Judge. Affirmed. Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
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Pedro Acuna Hernandez repeatedly molested his two young granddaughters, D. and M. On multiple occasions, he digitally penetrated and put his mouth on their vaginas, touched their breasts, and masturbated in front of at least one of them. After a jury convicted him of various sex offenses, the trial court sentenced him to 165 years to life in prison and imposed certain fines and fees.
Hernandez contends the trial court erred by (1) giving a prejudicially ambiguous jury instruction on uncharged sex offenses and (2) imposing fines and fees without determining whether Hernandez has the ability to pay them. We reject these contentions and affirm the judgment.
FACTS
D. and M. are Hernandez's granddaughters. They both testified at his trial.
D. described four incidents of abuse that occurred when she was 9 or 10 years old. In the first incident, D. was in the passenger seat of Hernandez's car, and he reached over and touched her breasts and vagina. In the second incident, D. was in the back seat of his car; Hernandez stopped the car, got into the back seat with her, pulled down her pants and underwear, and touched her vagina with his mouth and hands. In the third incident, he drove D. to an isolated area, put his hand under her shirt, and touched her breasts. In the fourth incident, Hernandez drove D. to the loading docks behind a shopping center, touched her breasts under her shirt, touched her vagina over her clothes, and masturbated.
Hernandez told D. he was "just playing" and she should not tell anyone. He also said her father would be furious if he found out and claimed her father would be imprisoned or "sent back to . . . Mexico" if he tried "to do something." D. told her mother about the abuse a few years later.
M. testified her earliest memories of Hernandez were of him molesting her and trying to rape her. The first incident she remembered occurred when she was three or four years old; Hernandez stuck his hands down her pants and digitally penetrated her. The abuse continued until she was 14 or 15 years old. On at least 15 occasions, Hernandez abused M. in the storage room of his Santa Ana minimarket by digitally penetrating her vagina, touching her breasts, and attempting without success to insert his penis in her vagina. On at least 10 occasions, Hernandez molested M. at her house by trying to kiss her, touching her breasts and vagina, making her touch his penis, and attempting unsuccessfully to insert his penis in her vagina. He abused her in the same manner in his truck on at least 20 occasions.
M. threatened to tell her parents, but Hernandez said no one would believe her. M. never told anyone about the abuse when it was happening. Finally, when she was 16, her cousin D. accused Hernandez of molesting her, and M. disclosed he had molested her too.
Investigators from the Orange County Sheriff's Department went to Hernandez's home to investigate the allegations of abuse. In a recorded interview, Hernandez admitted he touched M.'s vagina multiple times and exposed his erect penis to her once. He also admitted he touched D.'s breasts, and licked and kissed her vagina.
Hernandez was charged with six counts of lewd acts upon a child under 14 in violation of Penal Code section 288, subdivision (a) (counts 1 and 2 pertaining to D., and counts 7, 8, 9, and 10 pertaining to M.), three counts of oral copulation or sexual penetration with a child 10 years or younger in violation of section 288.7, subdivision (b) (counts 3, 4, and 5 pertaining to D.), and two counts of forcible lewd acts on a child under 14 in violation of section 288, subdivision (b)(1) (counts 11 and 12 pertaining to M.). The information further alleged Hernandez committed the offenses in counts 1, 2, and 7 through 12 against more than one victim within the meaning of section 667.61, subdivisions (b) and (e). Hernandez pleaded not guilty and denied the special allegations.
All further undesignated statutory references are to this code.
During trial, at the prosecution's request, the court dismissed count 6, which alleged lewd acts upon a child under 14 in violation of section 288, subdivision (a), and concerned a different victim.
During trial, the court admitted evidence of Hernandez's uncharged sexual offenses against M. For example, as noted above, M. testified that Hernandez attempted without success to insert his penis in her vagina on numerous occasions. The court instructed the jury that if the prosecution proved by a preponderance of the evidence that Hernandez in fact committed uncharged sexual offenses, the jury could conclude from that evidence that Hernandez was disposed or inclined to commit sexual offenses, and further that he was likely to commit and did commit the charged offenses. (See Evid. Code, § 1108, subd. (a) [permitting admission of uncharged sexual offenses as propensity evidence in cases involving sex crimes].)
The jury found Hernandez guilty on all counts and found the special allegations to be true. The trial court sentenced Hernandez to indeterminate prison terms of 15 years to life for each of the 11 counts, and ran the terms consecutively for a total prison term of 165 years to life. It also ordered Hernandez to pay certain fines and fees, which we discuss below.
DISCUSSION
As noted, Hernandez contends the trial court gave a prejudicially ambiguous jury instruction on uncharged sex offenses and improperly imposed fines and fees without determining whether Hernandez has the ability to pay them. We reject both contentions.
1. The Jury Instruction on Uncharged Sexual Offenses
Hernandez first asserts the trial court prejudicially erred and violated his constitutional right to due process by giving the jury an ambiguous version of CALCRIM No. 1191A regarding the proper use of uncharged sexual offense evidence. We review his claim of instructional error de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1217.) We agree the instruction was flawed, but conclude the error was not of constitutional dimension.
The trial court gave the jury a modified version of CALCRIM No. 1191A that began as follows: "The People have presented evidence that the defendant committed offenses of a sexual nature against the child, [M.], that were not charged in this case. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offense." Defendant did not object to the instruction.
The Attorney General contends Hernandez forfeited his challenge to the instruction by failing to object. But "a defendant need not object to preserve a challenge to an instruction that incorrectly states the law and affects his or her substantial rights." (People v. Palmer (2005) 133 Cal.App.4th 1141, 1156.) As we discuss below, the court did not employ CALCRIM No. 1191A correctly, so Hernandez did not forfeit the argument.
Hernandez complains this instruction failed to specify the uncharged offenses or give their elements. We agree. As drafted by the Judicial Council, the first two sentences of CALCRIM No. 1191A provide, "The People presented evidence that the defendant committed the crime[s] of <insert description of offense[s]> __________ that (was/were) not charged in this case. (This/These) crime[s] (is/are) defined for you in these instructions." As is immediately evident from the blank space and italicized language, the instruction is designed to include an adequate description of the uncharged offenses.
The Bench Notes to CALCRIM No. 1191A confirm this: "In the first sentence, the court must insert the name of the offense or offenses allegedly shown by the evidence. The court must also instruct the jury on elements of the offense or offenses." (Judicial Council of Cal., Crim. Jury Instns. (2020 ed.) Bench Notes to CALCRIM No. 1191A, p. 969.) The purpose of these requirements is self-evident. If it is not informed what the elements of the uncharged sexual offenses are, the jury is in no position to determine whether the defendant committed them.
Here, rather than defining the uncharged offenses Hernandez allegedly committed or instructing the jury on the elements of those uncharged offenses, the modified instruction given to the jury simply used the phrase "offenses of a sexual nature," leaving the jury to speculate what those offenses were and what was required to prove Hernandez more likely than not committed them. This was error.
Hernandez asserts the error violated his right to due process because it lessened the prosecution's burden of proof on what constitutes a sexual offense. Based on the facts of this case, we are not persuaded. "'[T]here is no reasonable likelihood the instruction on uncharged offenses relieved the prosecution of its burden of proof with respect to the charged offenses.'" (People v. Jandres (2014) 226 Cal.App.4th 340, 359 (Jandres), italics added.) "Propensity [is], of course, not an element of any of the charged crimes." (Ibid. [flawed version of CALCRIM No. 1191 did not violate defendant's right to due process by relieving prosecution of its burden of proof on charged offenses].)
"[I]nstructional error is assessed under the Watson reasonable probability standard," under which prejudicial error exists where it is reasonably probable the jury would have reached a result more favorable to the appellant in the absence of error. (Jandres, supra, 226 Cal.App.4th at p. 359; see People v. Watson (1956) 46 Cal.2d 818, 836-837.) Applying that standard here, we must determine whether it is reasonably probable Hernandez would have obtained a more favorable outcome if the version of CALCRIM No. 1191A given to the jury had named and defined the uncharged sexual offenses.
We do not find such a probability here. This is not a case where the testimony on uncharged sexual offenses significantly outweighed the testimony on the charged offenses or otherwise cast the defendant in a different light to the jury. Hernandez was charged with 11 serious sexual offenses against his two young granddaughters. The evidence against him on those offenses was strong, and included his express admissions. Further, there can be no real doubt the uncharged acts qualified generally as "sexual offenses" within the meaning of Evidence Code section 1108, so there is no material risk the jury used unqualified conduct as propensity evidence. Consequently, we conclude there was no reasonable probability of a more favorable outcome had the jury been given a version of CALCRIM No. 1191 that named and defined the uncharged sexual offenses.
2. The Fines and Fees
Hernandez next challenges the imposition of certain fines and fees. At the sentencing hearing, the trial court ordered him to pay a $3,300 restitution fine (§ 1202.4, subd. (b)(1)), a $3,300 parole revocation fine (§ 1202.45), $440 in court operations fees ($40 per conviction) (§ 1465.8), and $330 in criminal conviction assessment fees ($30 per conviction) (Govt. Code, § 70373, subd. (a)(1)). The court did not hold a hearing to determine whether Hernandez had the ability to pay those amounts; he did not request such a hearing, and he did not object to the imposition of the fees or fines.
Less than a month after Hernandez was sentenced People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) held that the imposition of certain fines and fees on an indigent defendant is unconstitutional. (Id. at p. 1160.) Relying on both Dueñas and the Eighth Amendment's prohibition on excessive fines, Hernandez contends the trial court erred in imposing the fines and fees without first determining he has the present ability to pay them. We disagree.
To start, Dueñas is distinguishable. In Dueñas, the defendant was a probationer who suffered from cerebral palsy, was unemployed and unable to work, homeless, and the mother of young children. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Her earlier failure to pay several juvenile traffic citations resulted in the suspension of her driver's license, which then led to a series of misdemeanor convictions over the years for driving with a suspended license, and even more court fines and fees. (Id. at p. 1161.) While she often served time in jail in lieu of paying her fines, Dueñas was still ordered to pay the related mandatory court fees. (Ibid.) As a result, she found herself deep within a cycle of repeated penal consequences, all of which stemmed from her initial inability to pay fines assessed when she was a juvenile.
At her sentencing on the most recent charge, Dueñas objected on due process and equal protection grounds to the trial court's imposition of a $30 court facilities assessment, a $40 court operations assessment, and a statutory minimum $150 restitution fine. (Dueñas, supra, 30 Cal.App.5th at p. 1162.) The trial court struck some fees but imposed others, concluding they were mandatory, and it rejected her due process and equal protection arguments. (Id. at pp. 1162-1164.)
The Court of Appeal reversed. It reasoned that imposing fees on defendants who cannot pay them effectively transforms "a funding mechanism for the courts into additional punishment for a criminal conviction." (Dueñas, supra, 30 Cal.App.5th at p. 1168.) Moreover, "[i]mposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive." (Id. at p. 1167.) The court held that "[b]ecause the only reason Dueñas cannot pay the fine and fees is her poverty, using the criminal process to collect a fine she cannot pay is unconstitutional." (Id. at p. 1160.)
The consequences that concerned the Dueñas court included not only the possibility of additional incarceration in lieu of payment, but also various civil impairments: "'[C]riminal justice debt creates a significant barrier for individuals seeking to rebuild their lives after a criminal conviction. Criminal justice debt and associated collection practices can damage credit, interfere with a defendant's commitments, such as child support obligations, restrict employment opportunities and otherwise impede reentry and rehabilitation. "What at first glance appears to be easy money for the state can carry significant hidden costs—both human and financial—for individuals, for the government, and for the community at large. . . . [¶] . . . Debt-related mandatory court appearances and probation and parole conditions leave debtors vulnerable for violations that result in a new form of debtor's prison. . . . Aggressive collection tactics can disrupt employment, make it difficult to meet other obligations such as child support, and lead to financial insecurity—all of which can lead to recidivism."'" (Dueñas, supra, 30 Cal.App.5th at p. 1168.)
These are serious concerns. But they are not applicable to this case. Hernandez makes no claim to be at risk of suffering any of the civil or criminal consequences that concerned the Dueñas court. Unlike the probationer in Dueñas, Hernandez is serving a 165-year-to-life prison sentence. There is nothing in the record suggesting his credit rating, child support obligations, or any other aspect of his life will be materially affected by his potential inability to pay these fees and fines, and he does not claim he will suffer significant consequences from nonpayment.
Further, there is evidence in the record from which we can infer the fines imposed on Hernandez will not saddle him with a burden similar to the inescapable, government-imposed debt-trap that Dueñas faced. For instance, when the molestation occurred, Hernandez had a home and a vehicle, and he owned a minimarket in Santa Ana. And aside from his age (Hernandez is now in his early 70s), nothing in the record suggests he will be unable to work in prison, where he will be paid at least $12 per month, and those wages may be applied toward the amounts owed. (See Cal. Code. Regs., tit. 15, § 3041.2; People v. Aviles (2019) 39 Cal.App.5th 1055, 1076 [inferring defendant has ability to pay fines and fees from his probable future prison wages].) As a result, Dueñas has no application here. (See People v. Johnson (2019) 35 Cal.App.5th 134, 139 [finding Dueñas distinguishable because "felon sentenced to prison for a lengthy term [was] not similarly situated to the misdemeanor probationer in Dueñas"].)
Even if Dueñas applied to this case, Hernandez forfeited the argument because he failed to object to the amounts imposed at the sentencing hearing. (See People v. Lowery (2020) 43 Cal.App.5th 1046, 1054; People v. Aviles, supra, 39 Cal.App.5th at p. 1073; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155.) Hernandez's "failure to challenge the fees in the trial court precludes him from doing so on appeal." (People v. Aguilar (2015) 60 Cal.4th 862, 864.) --------
Hernandez alternatively contends the fees and fines violate the Eighth Amendment's prohibition on excessive fines. Again, we are not persuaded. A fine is excessive under the Eighth Amendment "if it is grossly disproportional to the gravity of a defendant's offense." (United States v. Bajakajian (1998) 524 U.S. 321, 334.) In considering whether a fine is disproportionate, the defendant's ability to pay is only one of several factors to be considered. Courts must also consider the defendant's culpability, the relationship between the harm and the penalty, and the penalties imposed in similar statutes. (Ibid. ["[t]he touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality"]; see People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.)
Here, the fines and fees imposed against Hernandez were not grossly disproportionate to his crimes. In the trial court's words at the sentencing hearing, Hernandez turned "his granddaughters into his sex toys" to "satisfy his own perverted sexual desires," his victims were "particularly vulnerable both physically and emotionally," "he preyed upon their fears for their family" and "took advantage of his position of trust being their grandfather," "the manner in which the crimes were carried out indicate[s] sophistication and planning," and his acts "disclose a high degree of callousness and cruelty." On balance, we conclude the fines and fees are not constitutionally excessive.
DISPOSITION
The judgment is affirmed.
GOETHALS, J. WE CONCUR: ARONSON, ACTING P. J. IKOLA, J.