Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD190397 Howard H. Shore, Judge.
O'ROURKE, J.
A jury convicted Ramon Nava of eight counts of committing a lewd act upon a child under the age of 14 (Counts 1-8; Pen. Code, § 288, subd. (a)), finding true as to each count that he had substantial sexual contact with the victim. (§ 1203.066, subd. (a)(8).)
All further statutory references are to the Penal Code unless otherwise stated.
Nava also was charged with two additional counts of committing a lewd act upon a child under the age of 14 (counts 9-10) and one count of bribing a public officer (count 11; § 67.5, subd. (b)); however, because the jury was deadlocked on these charges, the trial court declared a mistrial and granted the People 's motion to dismiss them in the interest of justice.
The trial court sentenced him to 12 years in prison as follows: the upper term of eight years on count 1, plus consecutive two-year terms for counts 2 and 3, and concurrent six-year terms on the remaining counts.
Nava contends: (1) the trial court prejudicially erred by not instructing sua sponte regarding the jury's duty to weigh conflicting testimony; (2) insufficient evidence supported the convictions; (3) the upper term sentence on count one violated Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham); and (4) the trial court failed to state its reasons for imposing the consecutive sentences; therefore, the sentence was not constitutionally imposed. Affirmed.
FACTUAL BACKGROUND
B.B. testified she suffered from a painful condition, known as osteo osteoma, on her right leg. Despite several doctor's visits and diagnostic tests, it did not improve. This condition negatively impacted her ability to participate in the synchronized swimming classes she was attending. Around the end of June, 2004, when she was 11 yrs. old, she met Nava at a friend's home. Nava noticed her limping and said he was a chiropractor whose massages could help relieve the pain. B. told him to contact her mother. Nava did so and, starting in July, 2004, went to B.'s home to give her massages in the presence of either her grandmother or her mother, in the bedroom where her grandmother was staying. During the massage sessions, B.'s grandmother would sit in a chair — beside the bed where B. received the massages — and usually read or wrote in a cookbook, or watched television. Following Nava's suggestion, B. wore either "elastic shorts" or "pajama bottoms" during the massages.
During the first two massage sessions, Nava did not touch B. inappropriately; rather, he massaged both legs. During the third massage, he lifted her shorts and underwear and touched her vagina and put his finger inside it for approximately 10 or 20 seconds. B. reacted by rolling over to the other side of the bed for about a minute or two before righting herself for Nava to resume the massage as normal. Her grandmother was not in the bedroom when this incident occurred, having gone to fetch a glass of water that Nava had requested. B. did not tell her about the incident at that time.
The massage sessions were held approximately twice a week until they ended in December, 2004. B. testified that, "a lot of the times, [Nava] asked [her grandmother] to leave [the bedroom], so there were only, like, three — at the most, four times that she was in the room. And she was focused on something else." Sometimes Nava massaged her arms, although she was not experiencing problems with them. He touched her vagina during subsequent massages, and following the fifth or sixth session, he generally gave the appearance of massaging her, but also touched her vagina, and put his finger inside and moved it around for approximately 15 seconds. B. reacted to the inappropriate touching by going to the other side of the bed or kicking her legs. When her grandmother noticed, she thought B. was being very rude and yelled at her. B. remembered that her grandmother saw her kicking once, but B. did not tell her what Nava had done.
One day, B. was upset because her mother had not given her permission to go to a friend's house. Nava asked the grandmother to leave the bedroom for him to talk alone with B. about the issue. When the grandmother left, Nava spoke to B. He did not massage her, but instead repeatedly touched her vagina; she kept trying to move away.
After about the fifth massage session, Nava offered B. approximately 50 dollars for her to go to the movies with her friends. B. did not want to accept the money, but Nava gave it to her grandmother, who gave it to B. On December 12, 2004, Nava gave B. a gold chain as a gift. B. did not want it, and told her grandmother to give it to a cousin of B.'s. On that day, B. could no longer take Nava's inappropriate touching; therefore, she spoke about them with her grandmother, who disbelieved her. Subsequently, B. told her mother, who believed her.
B. had not spoken to her mother or grandmother about the incidents earlier because she did not think they would believe her. Nava had gained the trust of her entire family. She knew her mother was having financial difficulties. Nava had paid approximately two months of B.'s tuition for synchronized swimming classes, and those classes meant the world to B. Nava had told B.'s mother that he would help them find a house so they would no longer continue to live with relatives. B. thought it would be nice for her and her mother to live in their own house.
B.'s grandmother testified that during one of the massage sessions, she saw B. make a strong kick. She immediately asked B. what had happened. Nava moved his hands from near B.'s private part and said, "Nothing is wrong. Everything is okay," and that B. was tickled. The grandmother told B. to behave, and that Nava was doing his job. B. did not say anything but she was angry, and seemed to the grandmother like she was about to cry. Following that incident, the grandmother still trusted Nava and treated him as a friend. At that time, she did not think Nava would do anything inappropriate to B.
B.'s mother testified that in October, 2004, B.'s attitude towards Nava and the massages started to change. B. told her the massages were no longer helping her. B.'s grades started to fall. One day, B. surprised her mother by saying she "hated" Nava, explaining that Nava had put his finger in her vagina. B. cried after recounting the incidents. Her mother contacted the police and filed a complaint.
Steven Flores, a detective with the San Diego Police Department, testified he spent five and a half years investigating both child molestation and child physical abuse cases. He stated that most victims did not immediately disclose incidents of child abuse, rather they oftentimes delayed years before disclosing. On January 6, 2005, he was assigned to investigate the complaint filed by B.'s mother. He did not schedule a physical exam for B. because her last reported act of molestation occurred on December 12, 2004; therefore, any physical evidence of molestation was lost 72 hours later. On February 9, 2005, Flores interviewed Nava, asking him whether he accidentally touched B.'s vagina during a massage session. Nava replied that to give the massage he had to lift up B.'s shorts, and he might have accidentally touched her bare vagina. Flores informed Nava that B. alleged Nava had inserted his fingers inside her vagina. Flores, in his report, summarized Nava's response as follows: "When you pulled a nerve on the upper leg, it could feel like it was touching inside her vagina." Nava maintained he did not touch B. sexually.
Nava testified at trial that he never touched B.'s pelvic area, and denied he deliberately touched her vagina. Rather, he massaged her from the knee down, and not close to her vagina. When B. requested, he also massaged her arms and her non-ailing leg.
DISCUSSION
I.
Nava contends the trial court prejudicially erred by not instructing regarding the jury's duty to weigh conflicting testimony with either CALJIC No. 2.22 or CALCRIM No. 302. The People concede that conflicting evidence was presented at trial — including regarding whether Nava inserted his finger in B.'s vagina — but argue the court's failure to instruct was harmless under People v. Watson (1956) 46 Cal.2d 818 (Watson) because it was not reasonably probable the result would have been more favorable to Nava absent the error. (People v. Perez (2005) 35 Cal.4th 1219, 1232.) We agree.
CALJIC No 2.22 provides: "You are not required to decide any issue of fact in accordance with the testimony of a number of witnesses, which does not convince you, as against the testimony of a lesser number or other evidence, which you find more convincing. You may not disregard the testimony of the greater number of witnesses merely from caprice, whim or prejudice, or from a desire to favor one side against the other. You must not decide an issue by the simple process of counting the number of witnesses [who have testified on the opposing sides]. The final test is not in the [relative] number of witnesses, but in the convincing force of the evidence."
CALCRIM No. 302, titled, "Evaluating Conflicting Evidence," is in accord and states, "If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of the greater number of witnesses, or any witnesses, without a reason or because of prejudice or a desire to favor one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point."
Either CALJIC No. 2.22 or CALCRIM No. 302 must be given sua sponte in a criminal case when there is a conflict in the evidence. (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884-885.) On the state of this record, the trial court erred in failing to give one of the instructions. But failure to give these instructions is grounds for reversal of the verdict only when there is a reasonable likelihood the failure caused juror misunderstanding. (People v. Snead (1993) 20 Cal.App.4th 1088, 1097.) To assess that possibility we may consider the entire record and the totality of the jury instructions.
As in Snead, the jury here was given other instructions from which we conclude the trial court did not commit prejudicial error. Specifically, the jury was instructed on witness credibility generally, and the obligation not to "automatically reject testimony just because of inconsistencies or conflicts" (CALCRIM No. 226); the sufficiency of a single witness' testimony (CALCRIM No.301); reasonable doubt and the duty to "impartially compare and consider all the evidence that was received throughout the entire trial" (CALCRIM No. 220); direct and circumstantial evidence (CALCRIM Nos. 222 and 225) prior statements as evidence (CALCRIM No. 318); and expert witness testimony (CALCRIM No. 332). Thus, the jury was adequately instructed on how to resolve the factual issues in the case, including regarding conflicting testimony. The absence of instruction with CALJIC No. 2.22 or CALCRIM No. 302 did not leave the jury without guidance, and there was no "reasonable likelihood" of juror misunderstanding caused by the omission. (Snead, supra,20 Cal.App.4th at p. 1097.)
Although we recognize that in some cases it might be prejudicial error not to instruct with CALJIC No. 2.22 or CALCRIM No. 302, prejudice must be determined on a case by case basis. This is not such a case. We reviewed the prosecutor's closing argument, and the prosecutor did not argue that more witnesses supported conviction than the number that opposed it.
II.
Nava challenges the sufficiency of the evidence to support his convictions by attacking B.'s credibility. He contends her "allegations were unbelievable per se, and her allegations were the only evidence that supported the verdict." He disputes B.'s assertion that he inserted his fingers in her vagina while her grandmother was in the bedroom. He also argues that if indeed he had committed the charged acts, B. would have stopped him earlier because she had ample opportunities to talk to her mother and grandmother, with whom she was close and could speak openly regarding sexual issues.
In reviewing a challenge to the sufficiency of the evidence to support a conviction, we view the facts adduced at trial in full and in the light most favorable to the judgment to determine whether there is substantial direct or circumstantial evidence of the existence of each element of the convicted offense. (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Johnson (1980) 26 Cal.3d 557, 576-577.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury's conclusion. (People v. Arcega (1982) 32 Cal.3d 504, 518.)
We do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) We simply consider whether " ' "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." ' " (People v. Rich (1988) 45 Cal.3d 1036, 1081.) Reversal on the ground of insufficiency of evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [ the conviction.]' " (People v. Hughes (2002) 27 Cal.4th 287, 370.)
The elements of section 288, subd. (a) are: (1) the defendant willfully touched any part of a child's body either on the bare skin or through the clothing; (2) the defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child; and (3) the child was under the age of 14 years at the time of the act. (CALCRIM No. 1110.)
B.'s testimony, detailed above, provides sufficient evidence to support the verdicts. The concerns regarding B.'s testimony that Nava raises on appeal were for the jury to evaluate, and it elected to believe her. Nava testified and denied the incidents, but the jury disbelieved him. It is not our province to reweigh the evidence or judge the credibility of the witnesses. We reject the contention B.'s testimony was inherently improbable. She testified that most of the incidents of molestation occurred when her grandmother was outside the bedroom. Both she and her grandmother testified that Nava asked the grandmother to leave the room for him to talk privately with B. B. testified Nava used that opportunity to insert his finger in her vagina. Both B. and her grandmother also testified regarding an incident when B. kicked suddenly during one of the massages; B. testified that she was reacting to Nava's inappropriate touch. Finally, it is not inherently improbable that B., who was 11 or 12 years old at the time of the incidents, did not disclose them to her mother or grandmother because, as she testified, she feared they would not believe her, or she might jeopardize her family's relationship with Nava or whatever favors he provided to her family.
III.
Nava contends the upper term sentence on count one was unauthorized because, "Persisting in one's plea of not guilty, even post-conviction, is not a criterion under the California Rules of Court, justifying an increase or aggravation of the sentence from the midterm. Second, the court's imposition of an upper term sentence because it was not imposing the full consecutive terms sought by the prosecution is legally unjustified, logically unjustifiable, and certainly in violation of Cunningham."
At the sentencing hearing, the trial court found Nava ineligible for probation, and that a factor in mitigation was his lack of a prior record of convictions. The trial court stated, "one of the key factors" in this case is "the defendant's continued denial that he has done anything wrong. In the face of the evidence that I've heard, that denial is preposterous." The trial court continued, "With regard to count 1 . . . there are three possible terms: three years, six years and eight years. Because I am going to run some of the counts concurrently, I am considering the fact that these were multiple convictions in this case, and that I will not be imposing the full term requested by the People. And that, coupled with the fact that the defendant continues to deny his offenses outweighed any mitigating factors that may exist, and therefore, I find the appropriate term for count 1 to be the term of eight years." The trial court also mentioned, "This was a period of abhorrent conduct toward the victim for a period of several months. . . . However, I do not believe it's appropriate to run all of the remaining counts concurrently with count 1. [¶] With regard to count 2 — first of all, let me state for the record, each of the counts represents a distinct crime committed on a separate occasion. With regard to count 2 . . . I will impose one third the midterm to run consecutively with count 1, which means an additional two years, one third of six. [¶] With regard to count 3, I will impose one third the midterm for count 3, which is an additional two years consecutive to counts 1 and 2, for a total of 12 years. I will run the remaining counts, 4 through 8 concurrently with the term imposed in counts 1 through 3, for a total term of 12 years."
The United States Supreme Court has held that "[e]xcept for a prior conviction, 'any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' " (Cunningham, supra, 127 S.Ct. at p. 868.) The California Supreme Court concluded in People v. Black (2007) 41 Cal.4th 799 (Black), that the existence of "a single aggravating circumstance" renders a defendant eligible for the upper term, thus making the upper term the "statutory maximum" when at least one aggravating fact has been shown in a manner consistent with the requirements of the Sixth Amendment. (Black, supra, 41 Cal.4th at p. 813.) "Aggravating circumstances include those listed in the sentencing rules, as well as any facts 'statutorily declared to be circumstances in aggravation' [Citation] and any other facts that are 'reasonably related to the decision being made.' " (Black, supra, at p. 817.)
In People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) the court held, "The denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18." (Sandoval, supra, 41 Cal.4th at p. 838.) Accordingly, "if a reviewing court concludes, 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, the Sixth Amendment error may properly be found harmless." (Id. at p. 839.) California Rules of Court, rule 4.421 (a)(7) provides that a circumstance in aggravation is the fact that, "The defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed."
All further references to rules are to the California Rules of Court.
Here, the jury found beyond a reasonable doubt that Nava committed eight separate counts of lewd acts against a child under 14; therefore, Nava was not deprived of his jury trial right because the same factor considered by the trial court in imposing the upper sentence — that Nava committed multiple crimes — was found true by the jury. (See People v. Calhoun (2007) 40 Cal.4th 398.) Rule 4.421 (a)(7) permitted the trial court to impose the upper term because although it could have run the sentences for the eight counts consecutively, it elected to run the sentences for some of the counts concurrently.
IV.
Contrary to Nava's contention, the trial court did not fail to provide reasons for the consecutive sentences; rather, the trial court stated, "This was a period of abhorrent conduct toward the victim for a period of several months."
The decision to impose consecutive sentences is a sentence choice for which the trial court must give reasons under section 1170, subd. (c).) (People v. Champion (1995) 9 Cal.4th 879, 934, overruled on other grounds in People v. Combs (2004) 34 Cal.4th 821, 860.) Rule 4.425 (a)(3) lists as one criterion affecting whether to impose concurrent or consecutive sentences, that "the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." Here, the trial court's explanation for imposing consecutive sentences met the requirements of section 1170 subd. (c).) At any rate, any error was harmless because it was not reasonably probable that Nava would have received a more favorable sentence absent the error, considering that the trial court could have imposed consecutive sentences on the eight convictions, but instead elected to run some of them concurrently. (People v. Avalos (1984) 37 Cal.3d 216, 233; Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, Acting P. J., AARON, J.