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People v. Mendoza

California Court of Appeals, Fifth District
Mar 25, 2008
No. F052680 (Cal. Ct. App. Mar. 25, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. CORNELIO MENDOZA, Defendant and Appellant. F052680 California Court of Appeal, Fifth District March 25, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Tulare County. Super. Ct. No. VCF141417, Ronn M. Couillard, Judge.

Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Christina Hitomi. Deputy Attorneys General, for Plaintiff and Respondent.

THE COURT

Before Wise man, Acting P.J., Cornell, J., and Hill, J.

PROCEDURAL HISTORY

Appellant Cornelio Mendoza was charged with two counts of lewd or lascivious acts with a child under 14 years (counts 1 and 2, Pen. Code, § 288, subd. (a)), one count of sodomy (count 3, § 286, subd. (c)), possession of methamphetamine (count 4, Health & Saf. Code, § 11377, subd. (a)), being under the influence of methamphetamine (count 5, Health & Saf. Code, § 11550, subd. (a)), possession of drug paraphernalia (count 6, Health & Saf. Code, § 11364), and possession of less than one ounce of marijuana (count 7, Health & Saf. Code, § 11357, subd. (b)). As to counts 1, 2, and 3, the information also alleged substantial sexual conduct within the meaning of section 1203.066, subdivision (a)(8). Mendoza pleaded no contest to counts 4, 5, 6 and 7. He was convicted of counts 1, 2, and 3 after a jury trial.

All further references are to the Penal Code unless otherwise noted.

The trial court sentenced Mendoza to a total of 14 years 8 months in state prison as follows: the mid-term of six years on count 1, one-third the mid-term (two years) on count 2, the full mid-term of six years on count 3, and one-third the mid-term (eight months) on count 4, all of which were ordered to run consecutively. The court sentenced Mendoza on counts 5, 6, and 7 to time served.

Although the sentencing minute order clearly states that the term on count 3 is a mid-term, six-year, full consecutive term, the abstract of judgment identifies the six-year term as concurrent. This is a typographical error.

On appeal, Mendoza challenges as improper the full consecutive term imposed on count III pursuant to section 667.6. He also claims that the prosecutor engaged in prejudicial misconduct when, in closing argument, she exhorted the jury to consider the impact of the crime on the young victim. The Attorney General concedes error in sentencing.

FACTUAL HISTORY

The offenses were committed between October 1, 2004 and February 23, 2005, when the 12-year-old victim, along with his younger brother, routinely spent Saturday nights at an aunt’s home while their mother worked. Mendoza is the aunt’s son. He lived in the aunt’s apartment, along with his two younger brothers. The apartment had two bedrooms. The aunt slept in one and Mendoza slept in the other. The four younger boys slept in the living room: The victim and his brother slept on the floor and Mendoza’s two brothers slept on couches.

The abuse was discovered when the victim began bleeding from the rectum and sought medical attention. When the ensuing medical examination revealed venereal warts, the examining physician suspected abuse and reported the case to Child Protective Services. Venereal warts are transmitted by sexual contact. The physician testified that, when he asked the boy if he had been abused, the victim was “very, very sad, very distant, very evasive, very scared” and denied any abuse. Later, the victim reluctantly admitted that he had been abused and identified Mendoza as his abuser. He identified three separate incidents, all occurring on different Saturday nights and under somewhat different circumstances.

For the first offense, Mendoza took the victim to the bathroom and locked the door. There, he stripped the boy and sodomized him. Mendoza warned the boy not to tell his mother. The victim did not tell anyone about the attack because he was embarrassed, but he did tell his mother he did not want to go back to the aunt’s apartment. His mother told him this was the only safe place for them to stay while she worked. For the second offense, Mendoza came to the living room during the night and pulled off the victim’s clothes while he slept. When the victim awoke, Mendoza was sodomizing him. The victim did not tell his mother about this attack because he was too embarrassed. In committing the third offense, Mendoza came into the living room and placed the victim’s hand on Mendoza’s erect penis. The victim pulled his hand away. Mendoza responded, “Fuck you then.” The victim did not report this incident either. The two cousins sleeping in the living room at the time of the second and third molestations testified they heard nothing.

The victim’s mother confirmed at trial that her son did not want to go to the aunt’s apartment. The victim’s sister testified that, after the medical examination revealed the abuse, the victim told her that it was Mendoza who had molested him. She remembered a time when Mendoza had stopped to talk and that her brother was very upset by his presence. Mendoza told her that her brother had nice buttocks.

The defense produced evidence that the victim’s older brother had gotten into legal trouble and had been kicked out of the house. He was incarcerated at the time of trial. The victim testified that when he was “little,” his older brother had shown him a dirty movie and that he had once told police that his brother had undressed in front of him. The older brother denied undressing in front of the victim, admitted the victim had seen a dirty movie, but denied providing it. There was evidence that the older brother and Mendoza had fought and that there were bad feelings between the two families as a result.

Dr. Daniel Boken, an expert in infectious diseases, testified he saw no evidence of venereal warts on either Mendoza or the victim’s older brother (who voluntarily submitted to a physical examination). Dr. Boken testified that the lack of warts does not mean the two men examined were disease free; many people without visible symptoms of warts carry the virus which causes them. He testified there is no blood test for men to determine if the virus is present even in the absence of the warts.

DISCUSSION

I. Sentencing error

Mendoza contends the trial court erred when it ordered, pursuant to section 667.6, subdivision (d), that the sentence imposed on count 3 be fully consecutive to the sentence imposed on count 1. The Attorney General concedes error.

The trial court cited section 667.6, subdivision (b). We believe the trial court misspoke and meant to invoke the authority of subdivision (d) when ordering the term fully consecutive. At the time of sentencing, subdivision (b) authorized a 10-year enhancement for prior sex-offense convictions. It is not applicable to this case. Mendoza had no prior sex-offense convictions. The probation report correctly cited section 667.6, subdivision (d).

Section 667.6, subdivision (d), provides for a fully consecutive term in lieu of the term specified in section 1170.1, when a defendant has been convicted of more than one egregious sex offense. (People v. Jones (1988) 46 Cal.3d 585, 594, fn. 5) Mendoza was not convicted of a single qualifying offense.

Section 667.6 was amended while this case was pending. (Stats. 2006, ch. 337, § 32, eff. Sept. 20, 2006.) However, we do not find the changes to be determinative in our resolution of the issues presented on appeal and find the pertinent provisions to be substantially the same as the previous version of the statute for purposes of our analysis. For this reason, we use in our analysis the version of the statute effective at the time of sentencing.

Although the information charged Mendoza with committing “sodomy by use of force” and accomplished against the will of the victim by “force, violence, duress, menace and fear of immediate and unlawful bodily injury,” the listed subdivision, section 286, subdivision (c), has several subsections, including subsections that do not require the use of force or duress. (Compare § 286, subd. (c)(1) with § 286, subd. (c)(2) and (3).) The jury was not asked to decide whether Mendoza’s crime was accomplished with the use of force. Instead, it was told only that “[c]ount [t]hree charges the crime of sodomy,” and that Mendoza was charged with “sodomy with a person who was under the age of 14 years and at least 10 years younger than the defendant.” The jury was told that the elements of count 3 as charged were (1) participation in the act of sodomy and (2) that the victim was under the age of 14 and more than 10 years younger than Mendoza. This instruction identifies the elements of a violation of section 286, subdivision (c)(1), which does not contain an element of force and is not a qualifying offense under section 667.6, subdivision (d). (§ 667.6, subd. (e)(4).) Indeed, counsel never argued that force was an element of the crime charged and pointed to no evidence as establishing the requisite force. The instruction given referred only to the crime defined by section 286, subdivision (c)(1), although the abstract of judgment identifies the conviction in count 3 as “[s]odomy by force.” The jury verdict states only that Mendoza is guilty of “sodomy of a person under the age of 14 years and more than 10 years younger than the defendant …, in violation of Penal Code Section 286(c).” Under these circumstances, we conclude that Mendoza was not convicted of “sodomy by force.”

For these reasons, we accept the Attorney General’s concession that it was error to invoke the provisions of section 667.6, subdivision (d), when sentencing Mendoza and will remand the matter for re sentencing. In addition, we will order that the abstract of judgment be corrected to reflect that the true nature of Mendoza’s conviction on count 3 is a violation of section 286, subdivision (c)(1), and not “sodomy by force.”

II. Prosecutorial misconduct

Mendoza contends that the prosecutor engaged in prosecutorial misconduct when, during closing argument, she appealed to the jury to consider its sympathy for the victim. “In the guilt phase of a trial, it is misconduct to appeal to the jury to view the crime through the eyes of the victim. [Citation.]” (People v. Mendoza (2007) 42 Cal.4th 686, 704; see also People v. Pensinger (1991) 52 Cal.3d 1210, 1250 [improper to appeal to passion and sympathy of jury by asking members to think about their own children as victims].) The prosecutor argued as follows:

“Justice for [the victim]. Think about it. He didn’t tell people. You can’t put an old head on young shoulders. This is a young boy. He doesn’t understand what happened to him. He knows it was bad and terrible, it was traumatic. He was traumatized by what this despicable man did to him. [¶] … [¶]

“The worst thing about this whole case is that we all think back on our childhood. Those are good years. We’re safe. We have parents, they love us. We’re safe. Our main thing is to go out and have fun, to play with our friends, to go to school. You learn new things. You don’t have worries. You shouldn’t have to worry about somebody coming in and sodomizing you, sexually assaulting. [¶] You know what, he took away [the victim]’s innocence. He took away his childhood memories that are sacred to everybody. That’s what you have. He doesn’t have that anymore. Instead of that, he has nightmares. [¶] … [¶]

“You give [the victim] that justice that he deserves. Thank you. [¶] … [¶]

“This case, yes, it’s the People versus Cornelio Mendoza. But it’s about a victim, very, very much about [the victim]. He was victimized. He was a victim of … three crimes.”

The Attorney General counters that the issue has not been preserved for appeal because defense counsel did not object to the arguments on proper grounds. (People v. Lancaster (2007) 41 Cal.4th 50, 81-82 [failure to object forfeits any claim of prosecutorial misconduct].) We disagree that the issue was waived, but reject Mendoza’s contentions on the merits because no prejudice can be shown.

Defense counsel responded to the above argument initially stating prosecutorial misconduct as the grounds. When the court said, “No, it’s not,” counsel asked “Calling my client names?” The objection was overruled. Later, the prosecutor closed her argument asking the jury to give the victim the justice he deserved. Immediately after, but without objection, defense counsel started his argument by reminding the jury that the case was not about giving justice to the victim or his family, and that the court would instruct that pity and emotion were not to be considered in reaching a verdict. When the prosecutor concluded her rebuttal with her statement that the case was very much about the victim, defense counsel objected again that the case was not about justice for the victim, and the argument was contrary to the jury instructions. The court overruled the objection, finding the argument proper. We conclude that this record, albeit minimal, is sufficient to preserve the issue on appeal. The defense’s first objection was specific as to legal theory, but it did not direct the trial court to the actual problem—the appeal to sympathy for the victim. The last objection, however, was specific and did direct the court to the problem with the argument. Nonetheless, the trial court overruled the objection. Because the earlier instances of alleged misconduct are identical, factually and legally, to the objection raised and rejected by the trial court, Mendoza has demonstrated that any earlier objections would be futile. The issue has not been waived. (People v. Hill (1998) 17 Cal.4th 800, 820 [defendant excused from necessity of timely objection and/or request for admonition if either would be futile].)

In any event, we will affirm because, even if the prosecutor’s comments were improper, we see no prejudice. In order to succeed on a claim of prosecutorial misconduct, a defendant must show that “the prosecutor’s conduct infected the trial with such unfairness as to make the conviction a denial of due process, or that, in violation of state law, the prosecutor used deceptive or reprehensible methods to persuade the jury.” (People v. Harrison (2005) 35 Cal.4th 208, 257.) To show prejudice, a defendant must show “‘a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ [Citation.]” (Ibid.)

Here, the jury was fully instructed that it had to decide the case on the evidence before it, and that the arguments of counsel were not evidence. In addition, shortly after the case was given to the jury for deliberations, a juror informed the court that a few of the jurors had expressed feelings of sympathy and pity for the victim. In response, the court questioned each juror about whether such statements had been made and whether the individual jurors understood that pity and sympathy could not influence their votes. Each juror, even those who heard or rendered expressions of sympathy for the victim, assured the court that he or she understood the charge to set aside those feelings and decide the case on the evidence. As one juror explained, “I think we all kind of expressed [sympathy or pity for the victim] and got it out of the way,” but confirmed that the jury understood that sympathy was not a proper basis for determining guilt. There is nothing in the record to suggest that the jurors did not do what they promised the court they would do: decide the case on the evidence and not let sympathy for the victim determine guilt.

Furthermore, there is strong evidence of guilt. The victim was old enough to identify his abuser and did so unwaveringly. In addition, there was physical evidence of abuse and no motivation to lie.

In light of this record, Mendoza cannot establish prejudice, even if the prosecutor’s statements are deemed misconduct.

DISPOSITION

The judgment of conviction is affirmed. The matter is remanded for re sentencing in accordance with section 1170.1 consistent with this opinion. The abstract of judgment is to be corrected to show count 3 as a conviction under section 286, subdivision (c)(1), and to eliminate any reference to “sodomy by force.”


Summaries of

People v. Mendoza

California Court of Appeals, Fifth District
Mar 25, 2008
No. F052680 (Cal. Ct. App. Mar. 25, 2008)
Case details for

People v. Mendoza

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CORNELIO MENDOZA, Defendant and…

Court:California Court of Appeals, Fifth District

Date published: Mar 25, 2008

Citations

No. F052680 (Cal. Ct. App. Mar. 25, 2008)