Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F08847
SCOTLAND, P.J.
An amended information accused defendant Julio Hernandez of 11 counts of lewd and lascivious acts with a child under the age of 14 years (Pen. Code, § 288, subd. (a); further section references are to the Penal Code unless otherwise specified) and alleged that he personally inflicted great bodily injury (§ 12022.7, subd. (a)) and had substantial sexual conduct with the child (§ 1203.066, subd. (a)(8)).
A jury convicted defendant on counts one, five, six, seven, eight, and ten, acquitted him on counts three and four, and could not reach a verdict on counts two, nine, and eleven. The great bodily injury allegation was found true as to count seven, and the substantial sexual conduct allegation was found true as to counts six, seven, eight, and ten. Defendant was sentenced to state prison for 21 years, consisting of the upper term of eight years on count seven, plus consecutive terms of two years each on counts one, five, six, eight, and ten, and a consecutive term of three years for the great bodily injury enhancement. The counts on which the jury had deadlocked were dismissed in the interest of justice.
The amended abstract of judgment filed on May 17, 2007, erroneously lists the great bodily injury enhancement as being attached to count one, not to count seven. We shall order correction of the abstract.
On appeal, defendant claims the trial court erred by (1) allowing into evidence his statement describing a sexual dream that he had about a 12-year-old girl, (2) failing to instruct sua sponte on the defense of accident or mistake, and (3) imposing the upper term for count seven based on facts not found true by the jury. We shall affirm the judgment.
FACTS
Prosecution case-in-chief
On October 2, 2005, the 11-year-old the victim was brought to the emergency room of a medical center complaining of dysuria, a burning sensation with urination, and of pain in her vagina when she walked or spread her legs apart. An examination revealed that she had a rash associated with a sexually transmitted disease. It was “very surprising” to find such a rash on an 11-year-old child.
During the summer of 2005, the victim stayed part of the time with her father and part of the time with her mother, who lived in an apartment with defendant, who was her boyfriend, and with the victim’s brother.
When staying at her mother’s apartment, the victim slept in the living room. One night, defendant awakened the victim by putting his penis in the her vagina; as he did so, she pretended that she was still sleeping. After he got up and went to the bathroom, defendant returned and again put his penis in the victim’s vagina. During this time, the victim’s brother was sleeping in the living room.
On more than three other separate occasions, defendant put his penis in the victim’s vagina while she was in the living room. He usually did so two separate times during the course of a night. On another occasion, the act occurred in the bedroom of the victim’s mother.
The victim was 10 years old when the acts occurred. While testifying about what defendant had done to her, she said she had a better memory of the acts when she had talked to law enforcement officers about the molestations. She remembered telling Detective Juan Hidalgo: “In the four weeks that I was in school, [defendant] put his private in my private twice a night almost every night for the entire four weeks.”
The victim never talked to her parents about defendant’s acts because she was afraid that he would do something to her. Defendant had told her that he was involved with gangs in El Salvador.
The day the victim went to the medical center, she felt “really sick” where defendant had put his penis. The doctor was the first person to whom she disclosed the molestations. The disclosure effectively ended the victim’s relationship with her mother.
The parties stipulated that defendant has been exposed to, and his blood contained the antibody for, the sexually transmitted disease (STD) that was the source of the victim’s dysuria.
Dr. Deborah Stewart, an expert in the field of child and adolescent STD, testified that defendant was a carrier of the STD capable of transmitting it to another person, and that children do not get the STD unless they have sexual contact.
Detective Juan Hidalgo observed an interview of the victim at the Safe Center in October 2005. During the interview, the victim said defendant had sexually abused her on more than 10 occasions at the apartment she shared with her brother and mother.
Detective Hidalgo later interviewed the victim to obtain more information. She stated the incidents began shortly after school started and occurred “twice a night, almost every night.” Defendant “would do it to her on two days and then stop and then do the same thing to her two more days.” The victim described one incident that occurred in the living room while her mother and brother were in the room. The last molestation, when defendant’s penis penetrated her vagina three or four times, occurred while her brother was also in the living room.
Defendant, who was 22 years old, was interviewed by Detective Hidalgo in October 2005. Defendant said the victim’s mother had been his girlfriend for about a year and a half, she was pregnant with their child, and they were engaged to be married later that month. Defendant claimed that he was a youth leader at a church and helped teenage youths.
According to defendant the victim treated him as more than a friend; she became mad if he looked at other females at church; and there were times when she would lie on top of him, push him down, and put force on his legs and groin area. She would also hug him, lie next to him, bite him on the cheek, pull down his pants trying to see his penis, or open the bathroom door while he was changing in order to see his penis. Defendant stated there were times when the victim would start kissing him on the lips while he was half asleep; thinking it was his girlfriend, he would kiss her back. He would then awaken and stop the victim.
Defendant talked about a sexual encounter with the victim that occurred while he was asleep and wearing white shorts. His shorts had slid up to his chest area, and the victim got on top of him and rubbed her vagina against his penis. Even though he claimed that he was asleep, he remembered what occurred. She pressed her vagina onto his penis, and his penis went into her vagina about a quarter of an inch. When he realized the female on top of him was the victim and not his girlfriend, he pushed the victim off of him.
Defendant initially told Detective Hidalgo that there had been six occasions on which defendant awoke to find the victim rubbing her vagina against his penis. He later said his penis had penetrated the victim’s vagina three times, twice on the living room sofa and once on the floor. He claimed to have been half awake during those incidents.
Defendant said that when he was alone in the apartment with the victim, he would feel uneasy and at times locked himself in a room to keep her away from him. He claimed that the victim had been sexually assaulting him the entire two or three months they had been living together. He never discussed the matter with the victim because it would “lower her memory.” He never discussed the matter with his girlfriend because she was “very sentimental” and “would cry at times when he was reading the bible to her.”
The record contains no definition or explanation of this concept.
Defendant explained that the victim wore little white shorts that made it easier for her to accomplish the sexual assaults. When she put on those shorts, he knew she was planning to get on top of him and rub her vagina against his penis. He did not stop her from wearing the shorts because it would “lower her memory.”
During the interview, defendant claimed to have had the following dream about engaging in sexual intercourse with a young girl. He was in a cultivated field with his girlfriend when a 12-year-old or 13-year-old girl came over to him, grabbed him by the hand, and took him back into a room where she wanted to have sex with him. Defendant “had sex with her,” reached orgasm “immediately,” and “was really surprised about orgasming so quickly with her.”
Defendant said he discussed his dream with his girlfriend, who responded that, as she was sleeping next to him, she could “see him moving and knew that something like that was going on in his dream.”
Defense
Defendant’s girlfriend, who was married to him at the time of trial, testified she met him through church approximately two years previously. During the summer and fall of 2005, she and defendant lived in an apartment with her children and a woman who was renting a room from them. The children were each spending one week with them and then one week with their father. On hot days, the entire family slept in the living room, where the only air conditioning unit was located. She never saw or heard anything of concern between defendant and the victim. Although she did not believe that defendant gave the victim the STD, she acknowledged that she, too, has the same STD.
Defendant did not testify.
DISCUSSION
I
Defendant contends the trial court committed prejudicial error by allowing Detective Hidalgo to recount defendant’s description of his dream. We disagree.
Finding that the dream evidence was relevant because it tended to show defendant’s consciousness of guilt, and that its probative value was not outweighed by the potential for prejudice, the trial court instructed the jurors: “You are about to hear a statement attributed to the defendant describing an alleged dream. You are not to speculate about the content of the dream or to consider it for any purpose whatsoever other than the specific limited purpose I am about to give you. [¶] If you conclude the defendant made the statement, you can consider only the fact that the statement was made as evidence of the defendant’s consciousness of guilt, if any. You are directed not to discuss or consider the described dream in any way as any evidence of any predisposition to commit any of the crimes or acts alleged in this case.”
Pointing out that he did not contest he had sexual “contacts” with the victim, defendant emphasizes his “entire defense was that he had no lewd or lustful desire for [the victim] and, hence, did not respond to her advances, pushing her away as soon as he realized it was [the 10-year-old victim] and not [his girlfriend].” This defense, he argues, “was utterly destroyed by dream evidence that revealed a presumed intense and enthusiastic desire for a 12-year-old girl,” which “turned [his] defense into a confession.” Thus, he contends, the dream evidence should not have been introduced because “[t]here is absolutely no way to know from the evidence whether [he] did or did not have such a dream. Hence, there is no basis to conclude he was lying about the dream. If he was not lying, then it did not reflect adversely upon his credibility and there was no consciousness of guilt.” We are not persuaded.
Defendant talked about the dream after he already had accused the victim of perpetrating sexual acts upon him while he was asleep. He said, among other things, the 10-year-old girl was the culprit who took advantage of his sliding shorts in order to sexually assault him while he slept; he was able to remember details of the encounters even though the sexual assaults occurred while he was asleep; and the young girl was so precocious he had to lock himself in a room to avoid her advances. Given the incredulous nature of his claims, reasonable jurors could conclude defendant--knowing he was guilty of forcing himself on the victim--made up the dream that he was the victim of seduction by the 12-year-old girl because he thought the dream story would bolster his assertion that he likewise was the victim of repeated efforts of the 10-year-old girl in this case to have sex with him. In other words, reasonable jurors could conclude that the dream story was an untruthful effort by defendant to convince the detective that defendant was innocent of wrongdoing and, thus, reflected his consciousness of guilt.
Nonetheless, defendant argues, any probative value of the dream evidence was “manifestly outweighed by [its] prejudicial impact,” and thus should have been excluded pursuant to section 352 of the Evidence Code. The contention fails because the “impact” to which defendant refers is not prejudice within the meaning of the statute, which applies only to “‘“evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues,”’ not the prejudice ‘that naturally flows from relevant, highly probative evidence.’ [Citations.]” (People v. Padilla (1995) 11 Cal.4th 891, 925, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
Defendant complains that it “was absurdly unrealistic [for the trial court] to presume that jurors, ordinary citizens--after being told [defendant] admitted to having a sexually explosive dream about intercourse with a 12-year-old girl--could comply with an instruction that they could not use this knowledge as evidence he was sexually attracted to 12-year-old girls or that he was likely to want to have sex with an available [10-year-old girl in the apartment where he was staying].” Yet, absent extraordinary circumstances, we must presume the jurors followed the court’s instruction. (People v. Horton (1995) 11 Cal.4th 1068, 1121.) The situation here is not so extraordinary to rebut this presumption.
Also unconvincing is defendant’s attack on the prosecutor by asserting the People’s summation “encouraged the jury to consider [defendant’s] statement about having the dream as evidence that he was the type of person with a sexual interest in young girls.” This, he says, was the import of the following comment by prosecutor: “The dream. The 12-year[-]old girl forces herself on him. It happens to him a lot.” (Italics added.) The italicized passage properly referred to defendant’s statement to Detective Hidalgo describing the victim’s repeated conduct. It did not invite the jury to violate the court’s admonition by considering the dream as evidence that defendant had a predisposition to molest young girls.
In any event, other evidence of defendant’s guilt was so strong that he was not prejudiced by the dream evidence. Defendant did not contest that the victim contracted the same STD that defendant had. And during his interview by Detective Hidalgo, defendant admitted that on different occasions, his penis touched the victim’s vagina. His innocent explanation was so utterly implausible and unworthy of belief that we are convinced beyond any doubt that the jury would have rejected it if the dream evidence had been excluded. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].)
Defendant disagrees, noting the jury deliberated for 26 hours over six days, acquitted him of two counts, and could not reach a verdict on three other counts. But this does not suggest jurors gave any credence to defendant’s version of incidents. Rather, as noted by the People, it appears attributable to difficulty matching up the evidence with some of the specific counts. Exclusion of the dream evidence would not have affected that process, because the evidence was not tied to any specific count or counts.
II
Defendant contends the trial court erred by not instructing the jury sua sponte on the defense of accident and misfortune, i.e., that defendant committed no crime if he believed, as he awoke from sleep, that he was engaging in sex with his girlfriend and not with the victim. In his view, the court should have given a modified version of CALCRIM No. 3404, stating: “The defendant is not guilty of [lewd act on a child under age 14] if he acted without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of [lewd act on a child under age 14] unless you are convinced beyond a reasonable doubt that he acted with the required intent.”
The Bench Note to CALCRIM No. 3404 says in pertinent part: “There is no sua sponte duty to instruct on accident; however, the court must give this instruction on request when evidence of accident or misfortune has been introduced. (People v. Acosta (1955) 45 Cal.2d 538, 544 [290 P.2d 1].)” (Italics added.)
This direction is inconsistent with the rule on sua sponte instructions stated in People v. Dominguez (2006) 39 Cal.4th 1141: “In the absence of a request for a particular instruction, a trial court’s obligation to instruct on a particular defense arises ‘“only if [1] it appears that the defendant is relying on such a defense, or [2] if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.”’ [Citations.]” (Id. at p. 1148.)
Here, in summation, defense counsel argued defendant’s sexual touching of the victim “was not voluntary, that he would repeatedly wake up with [the victim] on top of him. He told you there was no penetration and that it happened about six times.” The People do not dispute that this argument appears to tender the defense of accident and lack of requisite intent. Thus, the court should have instructed sua sponte with CALCRIM No. 3404. (People v. Dominguez, supra, 39 Cal.4th at p. 1148.)
Actually, while interviewed by Detective Hidalgo, defendant admitted that his penis penetrated the victim’s vagina a quarter of an inch.
We conclude, however, that the error was harmless (People v. Breverman (1998) 19 Cal.4th 142, 149, 177) because of the “self-evident nature” of the omitted instruction on accident or mistake (see People v. Corning (1983) 146 Cal.App.3d 83, 88-89) and the fact the court gave other instructions which effectively told the jurors that defendant could not be convicted of violating section 288, subdivision (a) if the touchings were accidental and without the intent required by the statute. In addition to instructing on the general principles of the presumption of innocence, the People’s burden to prove guilt, and the meaning of “reasonable doubt,” the court articulated the elements of the crime and the People’s burden to prove, among other things, that defendant “willfully touched” the victim and that he “committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child.” The instruction explained: “Someone commits an act willfully when he or she does it willingly or on purpose.” (Orig. italics.)
In light of these instructions, it would have been self-evident to the jurors that defendant’s story, if believed, would constitute a defense to the charges. Thus, the omission of a CALCRIM No. 3404 instruction was harmless.
Not so, defendant argues, since he “admitted that he ‘willfully touched’ [the victim]--thinking that it was [his girlfriend]--and that his response was lustful.” This wordplay ignores the definition of “willfully” given to the jury by the trial court. Defendant never claimed that he was willing to sexually touch the victim, as opposed to his girlfriend, or that his purpose was to touch the victim rather than the girlfriend. Accordingly, if a juror believed defendant accidentally touched the victim, thinking she was his girlfriend, the juror would not have concluded that defendant “willfully touched” the victim within the meaning of the instructions given by the trial court.
In sum, it is not reasonably probable that defendant would have obtained a more favorable result had CALCRIM No. 3404 been given. (People v. Breverman, supra, 19 Cal.4th at p. 177; People v. Watson (1956) 46 Cal.2d 818, 836.)
III
Having found no error regarding introduction of the dream evidence and harmless instructional error, we reject defendant’s claim of “cumulative prejudice.”
IV
Defendant contends the upper term imposed for count seven “based on facts not found by the jury beyond a reasonable doubt violated [his] Sixth and Fourteenth Amendment rights to a jury trial and due process [of law].” (Citing Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856] (hereafter Cunningham).) The contention fails.
Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi) held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant; therefore, when a court’s authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely v. Washington (2004) 542 U.S. 296, 303-305 [159 L.Ed.2d 403, 413-414] (hereafter Blakely).)
In Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864], the United States Supreme Court held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Ibid., overruling People v. Black (2005)35 Cal.4th 1238 on this point (hereafter Black I, which was vacated in Black v. California (2007) __ U.S. __ [167 L.Ed.2d 36]).)
Interpreting the decision in Cunningham, the California Supreme Court concluded that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816 (hereafter Black II).) This is so because “the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is ‘legally essential to the punishment’ (Blakely, supra, 542 U.S. at p. 313), that is, to ‘any fact that exposes a defendant to a greater potential sentence’ than is authorized by the jury’s verdict alone (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 863]).” (Black II, supra, 41 Cal.4th at p. 812.) “Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Black II, supra, 41 Cal.4th at p. 813.)
Consequently, “[t]he issue to be determined in each case is whether the trial court’s factfinding increased the sentence that otherwise could have been imposed, not whether it raised the sentence above that which otherwise would have been imposed.” (Black II, supra, 41 Cal.4th at p. 815; orig. italics.) “As noted above, . . . the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence. [Citations.] The court’s factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial factfinding on those additional aggravating circumstances is not unconstitutional.” (Id. at p. 815.)
Here, in imposing the upper term on count seven, the trial court found five circumstances in aggravation: defendant’s crime involved acts disclosing a high degree of cruelty, viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1); further rule references are to the California Rules of Court); the victim was particularly vulnerable (rule 4.421(a)(3)); the manner in which the crime was carried out indicated planning (rule 4.421(a)(8)); defendant took advantage of a position of trust or confidence to commit the crime (rule 4.421(a)(11)); and defendant inflicted great emotional pain and disease upon the victim (rule 4.408).
Defendant suggests that one or more of these circumstances “addressed events which took place a [sic] after the trial.” We disagree. Our reading of the record shows that the events underlying all five aggravating circumstances occurred at the time of the offenses.
The trial court’s first finding (the crime involved cruelty, viciousness, or callousness) and fifth finding (defendant inflicted great emotional pain and disease upon the victim) are based on the jury’s finding that when defendant sexually molested the victim, he was infected with a sexual disease that he transmitted to the victim and, thus, inflicted great bodily injury upon her. Because the jury resolved the factual issue underlying those two findings, there was no Cunningham error as to them. (Black II, supra, 41 Cal.4th at p. 809; People v. Sandoval (2007) 41 Cal.4th 825, 837-838 (hereafter Sandoval).)
However, the court could “not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” (§ 1170, subd. (b).) Because transmission of the STD underlies the great bodily injury enhancement on count seven, it cannot also sustain the upper term on that count.
The trial court’s other findings (vulnerability, planning, and taking advantage of trust or confidence) have no parallel in the jury’s verdict. Hence, the judicial fact finding on those factors violated defendant’s constitutional right to a jury trial. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].)
Cunningham error is subject to harmless error analysis under the beyond-a-reasonable-doubt test of Chapman v. California, supra, 386 U.S. at p. 24 [17 L.Ed.2d at pp. 710-711]. (Sandoval, supra, 41 Cal.4th at p. 838; People v. Davis (2005) 36 Cal.4th 510, 564; see also U.S. v. Zepeda-Martinez (9th Cir. 2006) 470 F.3d 909, 913 [the error is harmless where the record contains overwhelming and uncontroverted evidence supporting the sentencing factor].) Accordingly, we must determine whether “beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury.” (Sandoval, supra, 41 Cal.4th at p. 839.)
A “clear-cut instance of victim vulnerability” may be presented where the victim is “very young.” (Sandoval, supra, 41 Cal.4th at p. 842.) Here, however, the trial court found that the victim was particularly vulnerable, “not because of her age but because of her circumstances.” Those “circumstances” were defendant “choosing to molest [the victim] when her mother was not present when she was alone.”
Although the victim told Detective Hidalgo of additional molestations that occurred while her brother and mother were in the apartment, her statement would not lead reasonable jurors to reject a finding of particular vulnerability during the times when the victim and defendant were alone. We are confident beyond a reasonable doubt that a jury presented with the circumstances of defendant’s molestation of the victim in count seven would have reached a verdict finding her to be particularly vulnerable.
The record also supports a second aggravating circumstance, planning indicated by “the timing, the manner in which [the sexual molestation] was done and the place and the time that it was done.” The regularity of the acts leads us to conclude, beyond a reasonable doubt, that a jury presented with the facts would have found that the manner in which count seven was carried out indicated planning.
Because we are satisfied beyond a reasonable doubt that if the aggravating circumstances had been submitted to the jury, it would have found true at least a single aggravating circumstance, we must affirm the upper term imposed on count seven. (Sandoval, supra, 41 Cal.4th at p. 839.)
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the amended abstract of judgment to reflect that a section 12022.7 enhancement was imposed as to count seven, not count one, and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.
We concur: DAVIS, J., NICHOLSON, J.