Opinion
G057328
07-31-2020
THE PEOPLE, Plaintiff and Respondent, v. ELEAZAR ACOSTA HURTADO, Defendant and Appellant.
Jean Matulis, 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, Michael C. Keller and Charles J. Sarosy, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16NF0452) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Jean Matulis, 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, Michael C. Keller and Charles J. Sarosy, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Eleazar Acosta Hurtado of three sex offenses against a 10-year-old child: one count of forcible sexual penetration, and two counts of forcible lewd conduct. The trial court imposed a sentence of 23 years to life.
Hurtado contends the court committed two instructional errors, the court imposed multiple punishments in violation of Penal Code section 654, and his life sentence is cruel and unusual. We disagree and affirm the judgment.
Further undesignated statutory references are to the Penal Code.
I
FACTS AND PROCEDURAL HISTORY
Ten-year-old Jane Doe stayed overnight at the home of her aunt and her uncle (Hurtado). Jane slept on their bedroom floor next to their bed. After Hurtado's wife left for work in the morning, he picked up Jane from the floor and put her on the bed, which woke her up. The bedroom door was locked.
Hurtado unzipped Jane's shorts. Hurtado pulled down Jane's shorts and underwear to her knees. Hurtado began "rubbing" Jane's vagina with his hand. Hurtado got on top of Jane, which prevented her from moving her arms and legs. Jane tried to yell for help, but Hurtado put his hands over her mouth and simultaneously "touched" her vagina. Hurtado put his fingers inside of Jane's vagina, which hurt her. Jane felt Hurtado's erect penis touching the top of her leg next to her vagina.
Hurtado stopped when noises were heard outside of the bedroom door. Hurtado went into the bathroom and washed his hands. Jane ran out of the bedroom, grabbed a phone in the hallway, and called her mother from another bathroom in the home. Jane told her mother that Hurtado had touched her vagina.
Jane was taken to a hospital where a doctor observed "non-specific" irritation (redness) on her hymen. A nurse conducted a sexual assault examination. A social services worker later conducted a Child Abuse Services Team (CAST) interview.
Police arrested and spoke Hurtado, who initially denied touching Jane. Hurtado later admitted touching "her little private part." Hurtado said he "got carried away by the devil." Hurtado denied touching Jane with his penis, but he said it was possible he had penetrated Jane's vagina with his fingers.
The jury found Hurtado guilty of sexually penetrating a child 10 years of age or younger (count one), and two counts of forcible lewd acts upon a child under the age of 14: touching Jane's genitals with his hand (count two), and touching her body with his penis (count three). The court imposed an aggregate sentence of 23 years to life: 15 years to life for count one, eight years for count two (consecutive), and eight years for count three (concurrent).
II
DISCUSSION
Hurtado contends the trial court erred because it: A) instructed the jury that a conviction can be based solely on the testimony of a sexual assault victim, and failed to instruct the jury that misdemeanor sexual battery is a lesser included offense of forcible sexual penetration; B) punished him for both forcible digital sexual penetration and one of the forcible lewd acts (touching Jane's genitals with his hand); and C) imposed a cruel and unusual punishment in violation of the federal and state constitutions. A. Instructional Error Claims (2)
We review instructional error claims de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) We determine whether the trial court fully and fairly instructed the jury on the applicable law. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In making this determination, we consider the instructions taken as a whole; we presume jurors are intelligent people capable of understanding and correlating all the court's jury instructions. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220.)
1. CALCRIM No. 1190
The trial court instructed the jury: "Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone." (CALRIM No. 1190.) The court further instructed the jury: "The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence." (CALCRIM No. 301.)
Hurtado recognizes CALCRIM No. 1190 "is a correct statement of the law." However, he argues: "Given in conjunction with CALCRIM No. 301, the combined effect was a misstatement of the prosecution's burden of proof." We disagree. But more importantly, we are bound by precedent. In People v. Gammage (1992) 2 Cal.4th 693 (Gammage), our Supreme Court held it was proper for a trial court to give two equivalent (CALJIC) jury instructions together in sex offense cases.
In Gammage, the trial court instructed the jury: "'Testimony as to any particular fact which you believe given by one witness is sufficient for the proof of that fact. However, before finding any fact required to be established by the prosecution to be proved solely by the testimony of such a single witness, you should carefully review all the testimony upon which the proof of such fact depends.'" (Gammage, supra, 2 Cal.4th at p. 696, italics omitted [CALJIC No. 2.27].) The trial court also instructed the jury: "'It is not essential to a conviction of a charge of rape that the testimony of the witness with whom sexual intercourse is alleged to have been committed be corroborated by other evidence.'" (Id. pp. 696-697 [CALJIC No. 10.60].)
The Court reasoned: "Although the two instructions overlap to some extent, each has a different focus. CALJIC No. 2.27 focuses on how the jury should evaluate a fact . . . proved solely by the testimony of a single witness. It is given with other instructions advising the jury how to engage in the fact-finding process. CALJIC No. 10.60, on the other hand, declares a substantive rule of law, that the testimony of the complaining witness need not be corroborated. It is given with other instructions on the legal elements of the charged crimes. [¶] Because of this difference in focus of the instructions, we disagree with defendant . . . that, in combination, the instructions create a preferential credibility standard for the complaining witness, or somehow suggest that that witness is entitled to a special deference. The one instruction merely suggests careful review when a fact depends on the testimony of one witness. The other tells the jury there is no legal corroboration requirement." (Gammage, supra, 2 Cal.4th at pp. 700-701.) The Court held "that it is proper for the trial court to give CALJIC No. 10.60 in addition to CALJIC No. 2.27 in cases involving sex offenses." (Id. at p. 702.)
Given the holding of Gammage, supra, 2 Cal.4th 693, the trial court did not commit error by instructing the jury with CALRIM No. 1190 (equivalent to CALJIC No. 10.60) in conjunction with CALCRIM No. 301 (equivalent to CALJIC No. 2.27).
Recognizing the precedential weight of Gammage, Hurtado attempts to distinguish the case by arguing "the CALCRIM instructions used today, and in the instant case, are different from the instructions examined in Gammage."
This is a distinction without a difference. While the two CALCRIM instructions are worded slightly differently from their CALJIC predecessors, they convey precisely the same legal concepts. (See Cal. Rules of Court, rule 2.1050(a) ["The California jury instructions approved by the Judicial Council are the official instructions for use in the state of California. The goal of these instructions is to improve the quality of jury decision making by providing standardized instructions that accurately state the law in a way that is understandable to the average juror"].)
Finally, Hurtado "respectfully urges this Court to recognize that Gammage was wrongly decided, and that even if not wrongly decided in 1992 when the opinion was issued, the rationale for the decision, already tenuous at the time, has been eroded to the extent that its holding is no longer justified." But even if we were inclined to agree with Hurtado—and we are not—this court is manifestly not vested with the power to declare a California Supreme Court precedent either incorrect or unjustified. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
2. Lesser Included Offenses
A "trial court has a duty to instruct the jury sua sponte on all lesser included offenses if there is substantial evidence from which a jury can reasonably conclude the defendant committed the lesser, uncharged offense, but not the greater." (People v. Brothers (2015) 236 Cal.App.4th 24, 29-30.) "Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.)
To determine whether a lesser uncharged offense is necessarily included in a greater charged offense, one of two tests must be met. (People v. Lopez (1998) 19 Cal.4th 282, 288.) The "elements" test is met if the statutory elements of the greater offense include all the elements of the lesser offense so that the greater offense cannot be committed without committing the lesser offense. (People v. Birks (1998) 19 Cal.4th 108, 117-118.) The "accusatory pleading" test is met if "the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater [offense] cannot be committed without also committing the lesser [offense]." (Ibid.; see People v. Bailey (2012) 54 Cal.4th 740, 752 [the accusatory pleading test is not applicable when there are no concerns about notice].)
Hurtado claims—exclusively under the elements test—that misdemeanor sexual battery is a lesser included offense of sexual penetration of a minor 10 years of age or younger. (§§ 243.4, subd. (e)(1); 288.7, subd. (b).) We disagree.
The elements of misdemeanor sexual battery are met when a person "touches an intimate part of another person, if the touching is against the will of the person, and is for the specific purpose of sexual arousal . . . ." (§ 243.4, subd. (e)(1), italics added.) The word "'touches' means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim." (§ 243.4, subd. (e)(2).) However, under section 288.7, a "sexual penetration" can be accomplished by "any foreign object, substance, instrument, or device, or by any unknown object," including any body part other than a sexual organ. (§ 289, subds. (k)(1) & (k)(2).)
Under the elements of the two crimes, it is possible for a person to commit a forcible sexual penetration without committing a sexual battery: penetrating a victim with an "object" without "touching" the victim. Therefore, the crime of misdemeanor sexual battery is not a necessarily lesser included offense of the crime of forcible sexual penetration of a minor. (See People v. Ortega (2015) 240 Cal.App.4th 956, 967 ["Sexual battery is therefore not a lesser included offense of forcible sexual penetration under the statutory elements test"], rejected on a different point in People v. Macias (2018) 26 Cal.App.5th 957, 964-965.)
Thus, the trial court did not commit error by failing to instruct the jury on misdemeanor sexual battery. B. Section 654 Claim
Generally, a jury can convict a defendant of multiple crimes arising from a single act, but a court can punish the defendant only once for the most serious of those crimes. "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) The purpose of the prohibition against multiple punishments is to ensure that a defendant's sentence is commensurate with his or her culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.)
If a defendant's course of conduct is divisible into separate acts, then a court can impose a punishment for each conviction; this depends on whether the defendant had a separate criminal objective for each act. (People v. Latimer, supra, 5 Cal.4th at pp. 1207-1208.) A course of conduct that is divisible in time ordinarily supports a finding of separate criminal objectives. (See, e.g., People v. Harrison (1989) 48 Cal.3d 321, 335 [a court can punish a defendant for separate acts of sexual conduct where each act occurred in a continuous course of conduct].)
Our standard of review is highly deferential: "The defendant's intent and objective present factual questions for the trial court, and its findings will be upheld if supported by substantial evidence. [Citation.] 'We review the court's determination of [a defendant's] "separate intents" for sufficient evidence in a light most favorable to the judgment, and presume in support of the court's conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence.'" (People v. Andra (2007) 156 Cal.App.4th 638, 640-641.)
Here, the jury convicted Hurtado of one count of forcible digital sexual penetration of a minor 10 years of age or younger (count one). The jury also convicted Hurtado of two counts of forcible lewd conduct; one of those counts was based on an allegation that Hurtado touched Jane's genitals with his hand (count two).
Prior to sentencing, the prosecution submitted a brief arguing section 654 did not apply because: "The victim testified and evidence was presented that each of the charged offenses were separate and individual occurrences." At sentencing, the court ruled: "As to count [one] I will follow the law. The court will impose 15 years to life on count [one]. Then as to count [two] it's the same victim. It was a separate crime even though it might have been on the same occasion. I would select midterm, which would be 8 years state prison and run that consecutive."
In this appeal, Hurtado contends the eight-year consecutive sentence for count two violates section 654 because: "A review of evidence shows but one instance in which the defendant's hand touched [Jane's] vagina." We disagree; this is not the only conclusion that can be reasonably deduced based on the evidence.
At trial, Jane testified that Hurtado put her on the bed then he "unzipped my shorts and put them down to my knees." The prosecutor asked: "Then what was the next thing that happened?" (Italics added.) Jane responded, "Then he started like rubbing my vagina." (Italics added.) After clarifying that Hurtado had pulled down both her underwear and her shorts, the prosecutor asked, "What was the next thing that you remember?" (Italics added.) Jane responded, "He started, like, touching me." (Italics added.) After asking Jane about how Hurtado had got on top of her, the prosecutor asked, "When he is touching your vagina, is it kind of like the outside part or the inside part?" (Italics added.) Jane responded, "It was like his fingers were kind of like inside." Jane also described the positioning of Hurtado's hands as she tried to yell out for help; she said, "One of them was touching my vagina and one was holding my mouth."
During the CAST interview, Jane described at one point in the interview that Hurtado "touched in my vagina"; Jane described at another point in the interview that Hurtado was "rubbing" her vagina. (Italics added.)
As argued by Hurtado, the record could possibly support a factual finding that Hurtado touched Jane's vagina only once with his hand when he digitally penetrated her. But based on the apparent length of the encounter (plainly more than momentary), the details provided in Jane's trial testimony and CAST interview, as well as the distinction Jane appeared to make between "touching" and "rubbing," we find credible evidence in the record to support the trial court's implied finding of fact that Hurtado touched Jane's genitalia on at least two separate (and divisible) occasions.
Thus, there is substantial evidence to support the trial court's conclusion that a consecutive sentence for count two (forcible lewd and lascivious conduct with Hurtado's hand) did not violate section 654. (See People v. Andra, supra, 156 Cal.App.4th at pp. 640-641 [we must "'presume in support of the court's conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence'"].)
Hurtado argues People v. Siko (1988) 45 Cal.3d 820, compels a different result. We disagree. In Siko, a jury found defendant guilty of rape, sodomy, and one count of forcible lewd and lascivious conduct. The trial court imposed consecutive six-year punishments for each conviction. (Id. at p. 823.) On appeal, defendant argued his sentence "violates the section 654 ban on multiple punishment because the lewd and lascivious conduct conviction was based on nothing other than the forcible rape and sodomy." (Ibid.) The Supreme Court agreed and reversed. The Court found defendant's sentence violated section 654 because "the charging instrument and the verdict both identify the lewd conduct as consisting of the rape and the sodomy." (Id. at p. 826.) The Court found nothing "in the prosecutor's closing argument or in the court's instructions suggest any different emphasis." (Ibid.)
In this case, there was nothing in the information or the verdict forms suggesting the same act of "touching" alleged in count two (forcible lewd conduct) was the same act of "touching" as alleged in count one (forcible sexual penetration). Further, the prosecutor said in closing argument that Hurtado's three charges (one count of forcible digital penetration and two counts of forcible lewd conduct) were each supported by a separate act: "I submit to you there were three separate acts, and that is why you have three separate charges. For Count [two] it is my position that when he touched her vagina with his hand, the outside or inside, not the penetration portion of it, but when he touched her vagina with his hand, that was a lewd act by force because he was covering her mouth and touching her vagina." (Italics added.)
In short, People v. Siko, supra, 45 Cal.3d 820, does not alter our analysis and conclusion that the trial court did not violate section 654. C. Cruel and Unusual Punishment Claims
Hurtado contends his sentence of 15 years to life is cruel and unusual; he challenges the punishment both facially and as applied to him under: 1) the United States Constitution; and 2) the California Constitution.
We must first reject Hurtado's facial challenge under binding precedent from our Supreme Court. (See In re Rodriguez (1975) 14 Cal.3d 639, 648 [rejecting a facial challenge to an indeterminate life sentence for a lewd and lascivious act, noting that section 288 "encompasses offenses reflecting a wide range of culpability, including situations in which the life maximum may be a constitutionally permissible punishment"]; see accord, People v. Baker (2018) 20 Cal.App.5th 711, 722 [facial constitutional challenge to section 288.7, subdivision (b), must fail under the holding of In re Rodriguez, supra, 14 Cal.3d at p. 648].)
As for Hurtado's "as applied" challenge, it is generally the exclusive role of the Legislature to determine appropriate penalties for criminal offenses. (People v. Crooks (1997) 55 Cal.App.4th 797, 807.) Thus, it is the defendant's "considerable burden" to convince an appellate court that the punishment imposed is disproportionate to his or her culpability. (People v. Wingo (1975) 14 Cal.3d 169, 174.)
1. The United States Constitution
The Eighth Amendment prohibits "cruel and unusual punishments." (U.S. Const., 8th Amend.) A sentence violates the federal Constitution if it is grossly disproportionate to the crime for which it is imposed. (Graham v. Florida (2010) 560 U.S. 48, 72.) We independently review whether a sentence meets this standard. (See United States v. Bajakajian (1998) 524 U.S. 321, 336-337.)
The Supreme Court has previously held that life sentences for theft and drug offenses are not cruel and unusual under the federal Constitution. (See, e.g., Lockyer v. Andrade (2003) 538 U.S. 63, 77 [consecutive sentences of 25 years to life for two petty theft with prior convictions did not violate the Eighth Amendment]; Ewing v. California (2003) 538 U.S. 11, 18-20 [a sentence of 25 years to life for stealing three golf clubs did not constitute cruel and unusual punishment]; Harmelin v. Michigan (1991) 501 U.S. 957, 961, [a sentence of life without possibility of parole for possession of 672 grams of cocaine did not violate the Eighth Amendment]; Rummel v. Estelle (1980) 445 U.S. 263, 268-285 [a life sentence for credit card fraud, passing a forged check, and theft by false pretenses did not violate the Constitution].)
Compared to other sentences for less serious crimes, we find that Hurtado's sentence of 15 years to life for forcibly sexually penetrating a 10-year-old child is not grossly disproportionate. Thus, it does not violate the Eighth Amendment.
2. The California Constitution
To determine whether a sentence is disproportionate under our state Constitution, California courts generally weigh the following factors: a) the nature of the offense and the offender; b) the punishment imposed to punishments for other offenses; and c) the punishment imposed to other jurisdictions' punishments for the same offense. (In re Lynch (1972) 8 Cal.3d 410, 425-429 (Lynch).)
As to the first Lynch factor, courts evaluate the seriousness of the crime as well as the totality of the circumstances surrounding the offense, such as the manner in which it was committed. (See People v. Em (2009) 171 Cal.App.4th 964, 972.) Here, the crime itself is one of the most serious listed in the Penal Code. (See Ashcroft v. The Free Speech Coalition (2002) 535 U.S. 234, 244 ["The sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people"].) And as far as how the crime was committed, Hurtado grabbed a 10-year-old child as she slept, moved her to a bed, pulled down underwear, penetrated her vagina, covered her mouth with his hand, prevented her from moving, and touched the top of her leg with his erect penis. We can only hope that the child will be able to fully recover from the psychological consequences of Hurtado's reprehensible acts. As far Hurtado's lack of a prior serious criminal record, given these horrendous circumstances, this factor does not alter our analysis that his sentence is proportionate. (See People v. Christensen (2014) 229 Cal.App.4th 781, 807 ["the lack of a prior criminal record is not determinative"].)
The second Lynch factor also weighs against Hurtado. A sentence of 15 years to life is not disproportionate when compared to other crimes that mandate similar sentences. (See, e.g., People v. Meneses (2011) 193 Cal.App.4th 1087, 1092-1094 [15 years to life for lewd act on a child]; People v. Carmony (2005) 127 Cal.App.4th 1066, 1071-1072 [25 years to life for failure to register as a sex offender].)
As to the third Lynch factor, Hurtado refers us to determinate sentences for similar sex offenses in two other jurisdictions: New York (five to 25 years), and Oregon (20 years). But the Attorney General refers us to indeterminate life sentences for similar sex offenses in four other states: Nevada (35 years to life); Michigan (25 years to life); Mississippi (20 years to life); and Rhode Island (25 years to life). As such, California's sentence of 15 years to life for forcibly sexually penetrating a child 10 years of age or younger "is no doubt severe, [but] it is not so disproportionate to the punishment imposed in other states to render [defendant's] sentence constitutionally suspect." (See People v. Baker, supra, 20 Cal.App.5th at p. 731 [life sentence for defendant convicted of oral copulation of a child was not cruel and unusual]; see also People v. Gomez (2018) 30 Cal.App.5th 493, 502 [life sentence for defendant convicted of sexual penetration of a child was not cruel and unusual].)
In conclusion, Hurtado has failed to persuade us that his sentence is disproportionate to his culpability.
III
DISPOSITION
The judgment is affirmed.
MOORE, ACTING P. J. WE CONCUR: FYBEL, J. GOETHALS, J.