Opinion
G053491
04-09-2018
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER RAYMOND OLAGUE, Defendant and Appellant.
Mark W. Fredrick; Cole M. Williams, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Anthony Da Silva, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 11WF2765) OPINION Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed. Mark W. Fredrick; Cole M. Williams, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant Christopher Raymond Olague of two sex offenses against Jane Doe One (counts one and two), intimidating her from being a witness (count three), and possessing child pornography (count six). The jury acquitted defendant of two sex offenses against Jane Doe Two (counts four and five). The trial court sentenced defendant to two years and eight months, plus 15 years to life in prison.
Defendant claims there was insufficient evidence to sustain his convictions for the sex offenses against Jane Doe One (kidnapping for the purpose of child molestation and child molestation). We disagree.
Defendant also claims that he was improperly held to answer for the alleged crimes against Jane Doe Two (child molestation and inducing a minor to engage in sexual conduct for a photograph), the trial court improperly refused to sever those two counts, and the court improperly admitted illicit photographs of Jane Doe Two. Again, we disagree. Further, given that the jury found defendant not guilty of the alleged crimes against Jane Doe Two, defendant has not been prejudiced by these alleged errors.
Finally, we reject defendant's claim that his sentence was constitutionally cruel and unusual. Thus, we affirm the judgment.
I
FACTS AND PROCEDURAL BACKGROUND
Jane Doe One and Jane Doe Two (defendant's daughter) were friends who attended the same school; they were both in the third grade. Jane Doe One would routinely visit Jane Doe Two at defendant's home, sometimes spending the night. On one such occasion, defendant spoke to Jane Doe One while Jane Doe Two was asleep. Jane Doe One confided to defendant that she wanted a D.S. video game. On another occasion, Jane Doe One took some money from Jane Doe Two's older sister, but Jane Doe One later returned the money. Jane Doe Two also has a younger sister, Jane Doe Three. There was also another girl, Jane Doe Four, who apparently used to live with defendant.
Defendant's Encounter with Jane Doe One
On October 5, 2011, Jane Doe One was at home after school in Huntington Beach when she received a call from defendant on the family phone. Jane Doe One spoke to defendant because her mother does not speak English. Defendant asked Jane Doe One if she wanted to hang out and play with his daughter Jane Doe Two and go to Toys R Us. Jane Doe One asked her mother, who said she could go.
When Jane Doe One heard a car horn beeping she went outside and got in the backseat of defendant's vehicle. Jane Doe One was surprised to see that Jane Doe Two was not in the car. Jane Doe One felt weird because she had never been alone with defendant in the car before and she thought Jane Doe Two would be with defendant "because he said she was going to be there."
As they were driving, Jane Doe One asked defendant where Jane Doe Two was. Although Jane Doe One told defendant that she wanted to see Jane Doe Two, defendant drove to Toys R Us. When they arrived at Toys R Us, the store was closed. At some point, Jane Doe One moved to the front seat of the car, although she did not want to. Defendant continued to drive in the rain and eventually stopped at a park.
When they were parked, defendant asked Jane Doe One to kiss him on the cheek. Defendant rubbed Jane Doe One's knee and moved his hand up her thigh. Defendant also rubbed her left arm. Jane Doe One told defendant that she did not like to be touched "because he was touching my leg." Defendant told Jane Doe One, "I know you want this," Jane Doe One responded, "I don't."
At oral argument, defendant's counsel said that the touching of Jane Doe One occurred after the incident at the park while defendant drove Jane Doe One home. Jane Doe One made that statement during her Child Abuse Services Team (CAST) interview. However, Jane Doe One testified at trial that the touching occurred while defendant's vehicle was parked. That is also what she told her mother, according to her mother's trial testimony. We note that the statement of facts is given in the light most favorable to the jury's verdict. (See People v. Berkeley (1978) 88 Cal.App.3d 457, 459, fn. 1.) In any event, this minor factual discrepancy does not affect our judgment regarding any of the substantive issues in this appeal (sufficiency of the evidence, severance, prejudice, etc.).
At one point, defendant slid his car seat back, unbuckled his belt, and Jane Doe One saw the waistband of defendant's underwear. Jane Doe One "became frightened. She put her hands on her face and started crying, [she] asked him please to not to harm her." Jane Doe One was scared and didn't want to see his private part. Defendant told Jane Doe One not to tell anyone about "what had happened, that she should forgive him and that everything was going to be fine." After Jane Doe One promised not to tell anyone, defendant buckled his belt.
Defendant tried to give $40 to Jane Doe One, who said that she did not want the money. Jane Doe One eventually relented and took the money after defendant said, "'I know you want the money.'" Defendant drove Jane Doe One home after she asked him to. On the way home, defendant asked Jane Doe One to promise not to tell anyone what had happened.
After the Encounter and the Investigation
Jane Doe One returned home about an hour and a half after she had left. Her older sister noticed that she look frightened and was not acting normal. Defendant called and asked to speak to Jane Doe One. After she got off the phone, her mother noticed that she look frightened. Jane Doe One started to cry and lowered her head when her mother spoke to her. After her mother assured Jane Doe One that it was okay to trust her, Jane Doe One told her mother what had happened with defendant. When Jane Doe One's father arrived home they called the police.
Jane Doe One showed her mother and the police the money that defendant had given to her. The police arranged to have Jane Doe One make two phone calls to defendant, which went into his voicemail. Defendant called back three times and the police recorded those conversations.
In the first call, Jane Doe One told defendant that her mother saw the money. Defendant told Jane Doe One to tell her mother that Jane Doe One had found it. Jane Doe One then told defendant that when she came in the house she was asked why was she crying. Defendant told her to say that Jane Doe Two was mean to her. Defendant then abruptly hung up.
In the second call, Jane Doe One told defendant that she was going to tell her mother that he had touched her. Defendant told Jane Doe One not to say that "cause it will be really bad, okay? Don't do that. I won't do that ever again . . . ." Defendant said that if Jane Doe One told her mother "we'll both get in really big trouble, okay. Don't do that, okay? I promise. I'm sorry. I'll do whatever you want okay? I'm sorry." Defendant asked for forgiveness and said: "Okay, I'm sorry, okay, and I'll give you more money if you need it. Okay?"
In the third call, Jane Doe One asked defendant: "Why were you, um, zipping your pants?" Defendant answered: "I wasn't doing that? [Sic.] I wasn't going to do that. You thought wrong. That was wrong. I did not do that." Defendant said: "I, I don't want you to be mad at me, okay? I don't want you to be afraid. I want you to be friends with [Jane Doe Two], but if you do this you can't be friends with [Jane Doe Two] no more . . . ."
Jane Doe One asked defendant "Why did you, um, drop . . . drop me, and why did you drove me to a park?" Defendant said: "Because [Jane Doe Two] was there. [She] was supposed to meet me there." Defendant said: "That's why [Jane Doe Two] was supposed to be there. Her, her grandparents were gonna drop, drop her off there, but they weren't there." Defendant said: "And then they called me, and they said weren't going to be able to make it. I'm like, 'Alright', I said, 'I'll see you at church then.' That's what happened." Defendant said: "And I'm never gonna do that again. I promise, so please don't tell nobody okay. It will be our secret and it won't, it was a mistake that I made, but it's between you and me, okay?" Defendant then secured from Jane Doe One's promises not to tell her mother or her father.
Defendant made the phone calls to Jane Doe One while he was driving in his car. The police eventually made a traffic stop, arrested defendant, and searched the car. The police found an ASUS laptop computer and a USB drive. The police also seized defendant's cell phone. The following day, the police searched defendant's home and seized a MacBook laptop computer.
The ASUS laptop computer found in the car contained numerous pornographic images of female children, including an image of exposed genitalia. A forensic examination of the computer revealed that some of the images had been opened just prior to when defendant had picked up Jane Doe One. The USB flash drive contained 16 videos of child pornography. Defendant's cell phone contained photographs of Jane Doe One, Jane Doe Two, and Jane Doe Two's younger sister, Jane Doe Three. The cell phone also contained images of female children wearing bathing suits.
Along with other images of child pornography, the MacBook computer found in defendant's home contained a series of six explicit photographs of two of defendants' daughters, Jane Doe Two and Jane Doe Three, which had been downloaded from a cell phone onto the computer about three years earlier.
Defense Evidence
At trial, defendant's father testified that on the day in question, he had picked up defendant's daughters, Jane Doe Two and Jane Doe Three, at school. He said that they were supposed to meet defendant and Jane Doe One at the park for an arranged play date. Defendant's father said that it was raining, so he decided to take the girls home, assuming the play date was cancelled. Defendant's father said that he waited at a designated meeting place for 20 minutes, but he never called defendant to cancel the plans.
CAST Interviews
Two days after defendant's arrest, the police conducted a CAST interview in which Jane Doe One discussed what had happened to her.
The statement of facts is taken from a combination of Jane Doe One's statements to her mother, her statements at the CAST interview, and her trial testimony. Jane Doe Two's CAST interview was admitted into evidence, but she did not testify at trial.
About a month after defendant's arrest, police conducted a CAST interview with Jane Doe Two. Jane Doe Two said that when she was about four years old, that she and her sister were playing in their room and they took photographs with their mother's camera. Jane Doe Two said that she took photographs of Jane Doe Three's genitalia. Jane Doe Two said that she gave the camera back to her mother. Jane Doe Two said that defendant did not use his cell phone to take photographs of her.
Trial Court Proceedings
On November 29, 2011, the prosecution filed a felony complaint charging six offenses. Counts one, two, and three alleged crimes committed against Jane Doe One: kidnapping for the purpose of child molestation, child molestation, and an attempt to dissuade a witness. (Pen. Code, §§ 207, subd. (b), 288, subd. (a), and 136.1, subd. (a)(2).) Counts four and five alleged crimes committed against Jane Doe Two: child molestation, and inducing a minor to engage in sexual conduct for a photograph. (§§ 288, subd. (a), 311.4, subd. (c).) Count six alleged possession and control of child pornography. (§ 311.11, subd. (a).) The complaint further alleged a kidnapping in the commission of a crime (count two) and a multiple victim allegation. (§§ 667.61, subds. (b), (c) & (e)(1), (4) & (5).)
Further undesignated statutory references will be to the Penal Code.
On May 8, 2013, following a preliminary hearing, the People filed an information essentially charging the same crimes and allegations that had been alleged in the complaint. Defendant filed a motion to set aside the information as to counts four and five concerning Jane Doe Two, and the multiple victim allegation. (§ 995.) The trial court denied the section 995 motion and this court denied a writ of mandate challenging the lower court's ruling. The defendant had argued that: "Counts four and five relate to photographs that were found on a computer located inside defendant's home. The photographs depict [defendant's] young daughters naked in sexually provocative positions. No evidence connects [defendant] with the photographs."
The information alleged an additional count as to Jane Doe Three that was ultimately dismissed at trial and is not relevant to the issues in this appeal.
Just prior to a jury trial beginning, defendant filed a motion to sever the counts alleged as to Jane Doe Two (counts four and five) from the remaining counts. The trial court denied the motion.
The jury found defendant guilty of only those counts involving Jane Doe One (counts one, two and three) and the possession of child pornography charge (count six). The jury also found true the allegation that defendant kidnapped the victim during the commission of the child molestation crime (count two). The jury acquitted defendant of the counts involving Jane Doe Two (counts four and five) and did not find the multiple victim allegation to be true. The trial court sentenced defendant to an aggregate prison term of two years and eight months, plus 15 years to life.
II
DISCUSSION
Defendant claims there was insufficient evidence to sustain his convictions for kidnapping for the purpose of child molestation and the molestation of Jane Doe One (counts one and two). Defendant also claims that he was improperly held to answer for the two counts alleged against Jane Doe Two (counts four and five), the court improperly refused to sever those counts, and the court improperly admitted illicit photographs of Jane Doe Two at trial. Finally, defendant contends that his sentence is cruel and unusual. A. Sufficiency of the Evidence (Counts One and Two Involving Jane Doe One)
Defendant argues that there was insufficient evidence to support his convictions for kidnapping Jane Doe One for the purpose of child molestation (count one) and molesting Jane Doe One (count two). We disagree.
When we consider "'the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.]" (People v. Edwards (2013) 57 Cal.4th 658, 715.)
"'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "Where the circumstances reasonably justify the trier of fact's findings, a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment's reversal." (Id. at pp. 357-358.)
1. Kidnapping for the Purpose of Child Molestation
"Every person, who for the purpose of committing any [lewd and lascivious] act defined in Section 288, hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any child under the age of 14 years to go out of this country, state, or county, or into another part of the same county, is guilty of kidnapping." (§ 207, subd. (b).)
In this case, the jury was instructed that in order to find defendant "guilty of this crime, the People must prove that: [¶] 1. The defendant persuaded, enticed, decoyed, or seduced by false promise or misrepresentation a child younger than 14 years old to go somewhere; [¶] 2. When the defendant did so, he intended to commit a lewd or lascivious act on the child; [¶] AND [¶] 3. As a result of the defendant's conduct, the child then moved or was moved a substantial distance." (CALCRIM No. 1200.)
Defendant challenges only the second element regarding intent. He argues: "There was no evidence supplied to confirm that a kidnapping was planned." We disagree.
Jane Doe One testified that defendant called her after school and told her that she was to go "hang out" with her friend, defendant's daughter, Jane Doe Two. However, when Jane Doe One got into defendant's car, Jane Doe Two was not in the car; thus, it was reasonable for the jury to infer that defendant had intentionally arranged the situation so he could be alone with Jane Doe One. Further, defendant touched Jane Doe One once when she was alone with him in the car. Moreover, there was evidence that defendant viewed images of child pornography just prior to when he had picked up Jane Doe One. Thus, there was sufficient evidence for the jury to reasonably infer that at the time defendant persuaded Jane Doe One to go somewhere, he intended to commit a lewd and lascivious act upon her.
Defendant argues that at the time he persuaded Jane Doe One to go somewhere, he had an innocent intent. He argues that he "had scheduled a play date with his parents in which they would pick his daughters from school and he would pick up a friend of his daughter and meet at a local park." He made the same argument at trial. But the jury apparently rejected defendant's version of the evidence. It is not our role as a reviewing court to reweigh conflicting evidence or to second guess the jury's determination of the facts. (See People v. Zamudio, supra, 43 Cal.4th at p. 357.)
2. Child Molestation
"[A]ny person who willfully and lewdly commits any lewd or lascivious act . . . with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . ." (§ 288, subd. (a).)
In this case, the jury was instructed that in order to find defendant "guilty of this crime, the People must prove that: [¶] 1A. The defendant willfully touched any part of a child's body either on the bare skin or through the clothing; [¶] OR [¶] 1B. The defendant willfully caused a child to touch her own body, the defendant's body, or the body of someone else, 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.)
Defendant argues that the "touching" he was accused of was "de minimis" and Jane Doe One was never "touched under her clothing." But evidence of touching under a victims' clothing is not what is required under the law. (People v. Lopez (1998) 19 Cal.4th 282, 289 ["Any touching of a child under the age of 14 violates this section, even if the touching is outwardly innocuous and inoffensive, if it is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the victim"].) "To determine whether a defendant acted with sexual intent, all the circumstances are examined. Relevant factors include the nature and manner of the touching, the defendant's extrajudicial statements, the relationship of the parties and 'any coercion, bribery or deceit used to obtain the victim's cooperation or avoid detection.'" (In re R.C. (2011) 196 Cal.App.4th 741, 750.)
Here, Jane Doe One testified that once she entered defendant's car and after he parked it, defendant rubbed her leg and then moved his hand up to her thigh. She also testified that defendant rubbed her left arm and shoulder. Thus, the "touching" element is satisfied. There is also circumstantial evidence of defendant's sexual intent: just prior to picking up Jane Doe One from her home, defendant had viewed images of child pornography; when defendant touched Jane Doe One, he said, "I know you want this[,]" even though Jane Doe One said, "I don't[]"; at one point, defendant slid back the seat, and unbuckled his belt to reveal his underwear; after the touching, defendant gave Jane Doe One money and told her not to tell anyone; and after defendant dropped off Jane Doe One back at her house he spoke to her over the phone and repeatedly apologized and said, "And I'm never gonna do that again. I promise, so please don't tell nobody okay. It will be our secret and it won't, it was a mistake that I made, but it's between you and me, okay?"
Based on the above circumstances, a jury could reasonably infer that defendant had a sexual intent at the time he touched Jane Doe One. Thus, there was substantial evidence to support defendant's conviction for child molestation. B. Denial of Section 995 Motion (Counts Four and Five Involving Jane Doe Two)
Defendant argues that there was no evidence presented at the preliminary hearing to connect him to the alleged counts involving Jane Doe Two. Therefore, he argues that the trial court improperly denied his section 995 motion. We disagree. Further, even assuming error, defendant has failed to establish prejudice.
The role of a magistrate at a preliminary hearing is to determine if there is "sufficient cause" to hold the defendant to answer on each of the offenses alleged in the complaint. (§ 872; Galindo v. Superior Court (2010) 50 Cal.4th 1, 8.) The role of a superior court judge at a section 995 hearing is to review the determination of the magistrate and to draw every legitimate inference in favor of the charges alleged in the information. (Alvarado v. Superior Court (2007) 146 Cal.App.4th 993, 999.) Our role, when reviewing the decision of the section 995 judge is to effectively disregard the ruling of the superior court and directly review the determination of the magistrate. (People v. Scott (1999) 76 Cal.App.4th 411, 415-416.)
In reviewing the superior court's ruling in a motion to set aside an information "we apply the same test to determine whether there was sufficient evidence to support the magistrate's decision." (People v. Topp (1974) 40 Cal.App.3d 372, 374.) The term "'sufficient cause'" essentially means the same as "'probable cause.'" (People v. Uhlemann (1973) 9 Cal.3d 662, 667.) "The term 'sufficient cause' is equivalent to 'reasonable and probable cause,' that is, such a state of facts as would lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused." (People v. Ortiviz (1977) 74 Cal.App.3d 537, 541.)
1. Relevant Preliminary Hearing Testimony
On April 26, 2013, a magistrate presided over a preliminary hearing. In addition to testifying as to the evidence regarding the charges concerning Jane Doe One, Huntington Beach Police Detective Kevin Johnson testified as to his investigation of the charges regarding Jane Doe Two. Johnson said that when they executed a search warrant of defendant's home, Jane Doe Two's mother refused to speak to him about the case. Johnson said that during a forensic search of one of the computers seized from defendant's home, the police found a series of six explicit photographs of Jane Doe Two and Jane Doe Three exposing their vaginal areas. Johnson testified that when he returned to defendant's home he informed Jane Doe Two's mother that he believed Jane Doe Two was a possible victim of sexual misconduct by defendant. Jane Doe Two's mother initially refused to allow Johnson to interview Jane Doe Two or Jane Doe Three.
Detective Johnson testified that later, during the CAST interview, Jane Doe Two said that her mother said that Jane Doe Two and Jane Doe Three had taken the illicit photographs themselves. Johnson testified that during the CAST interview, Jane Doe Two "went back and forth" between this statement, and alternatively saying that she had her own independent recollection of the incident. Johnson testified that Jane Doe Two said that the photographs were taken while they were dressed up as ballerinas. Johnson testified that none of the photographs showed the girls wearing ballerina costumes. Johnson said that at some point, Jane Doe Two had overheard her mother talking to the defendant over the phone about the photographs.
Detective Johnson testified that he spoke to Jane Doe Four about two incidents that had occurred with defendant when she was between nine and 11 years old. Jane Doe Four told Johnson that "she was sleeping in the living room because she was too scared to sleep in her own room because that's where the previous molestation had occurred." Jane Doe Four said "defendant entered the living room and touched her vaginal area underneath a blanket she had over her." Johnson said that Jane Doe Four said that she had reported her allegations in 2002 when she was 15 years old, but she had later "recanted her statement from 2002 because she did not want to cause problems with her family, but she said the molestation at the time did, in fact, occur."
The relationship between Jane Doe Four and defendant is unclear; the testimony regarding Jane Doe Four is extremely limited.
At the conclusion of the hearing, the magistrate found "sufficient evidence to believe that the felony offenses charged in the complaint and the special allegation charged in the complaint have been committed and that defendant committed said felonies."
2. Analysis
In count four, the complaint alleged that defendant molested Jane Doe Two: "[A]ny person who willfully and lewdly commits any lewd or lascivious act . . . with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . ." (§ 288, subd. (a).) In count five, the complaint alleged defendant induced Jane Doe Two to engage in sexual conduct for a photograph: "Every person who . . . knowingly . . . persuades, induces, or coerces a minor under the age of 18 years . . . to engage in . . . posing . . . for purposes of preparing any representation of information, data, or image . . . that contains or incorporates in any manner . . . sexual conduct by a minor under the age of 18 years alone or with other persons . . . is guilty of a felony . . . ." (§ 311.4, subd. (b).)
Here, the photographs of Jane Doe Two apparently showed that her hands were spreading open her vaginal area to expose the interior of her genitalia; we agree with the prosecutor's argument at the preliminary hearing that this is not typical child's play. Thus, it was reasonable to infer that defendant, at this point a suspected child molester, may have been involved in the photographs.
There was also other evidence presented at the hearing that supported a finding of sufficient cause to bind defendant over for trial on the counts involving Jane Doe Two, including: defendant's alleged molestation of Jane Doe One; defendant's alleged molestation of Jane Doe Four, who apparently lived with defendant at some point; multiple images of child pornography within defendant's control; apparent cooperation between defendant and Jane Doe Two's mother following his arrest; inconsistencies in Jane Doe Two's testimony; and what appeared to be possible coaching of Jane Doe Two by her mother.
In sum, based on the evidence at the preliminary hearing, there was sufficient cause "to believe and conscientiously entertain a strong suspicion" that defendant may have committed a lewd and lascivious act upon Jane Doe Two and that defendant may have persuaded her to engage in the sexual conduct depicted in the photographs that were located on the computer found in defendant's home. (See People v. Ortiviz, supra, 74 Cal.App.3d at p. 541.)
In any event, even if we were to find error as to the denial of the section 995 motion, defendant has not established that he was prejudiced by the alleged error. Before any judgment can be reversed for error under state law, it must appear that the error complained of "has resulted in a 'miscarriage of justice,'" which means that reversal is justified only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 835-836.) Accordingly, an appellant bears the burden to affirmatively establish error and then demonstrate prejudice: that the error resulted in a miscarriage of justice that requires reversal. (Ibid.)
Here, defendant contends that the trial court improperly denied his motion to set aside the information as to the two counts involving Jane Doe Two, but the jury acquitted him of those counts. Recognizing the difficulty here, defendant simply asserts in a conclusory fashion that as to the remaining four convictions, he was "denied his constitutional right to a fair trial." We simply find no evidence in the record to support that claim. As we discussed earlier in this opinion, there was sufficient evidence to support defendant's convictions for the sex offenses he committed against Jane Doe One as alleged in counts one and two. And in this appeal, defendant does not challenge the sufficiency of the evidence concerning his other two convictions (witness intimidation of Jane Doe One and possession of child pornography). Indeed, the evidence supporting each conviction can fairly be described as overwhelming. We note that the jury began its deliberations at 2:05 p.m., the jurors left for the evening at 4:15 p.m., and they returned a verdict at 12:00 p.m., the following day. We also note that the jury apparently submitted no questions during its deliberations.
In sum, based on our review of the record, we find it probable that the jury would have found defendant guilty of all of the charges of which he was convicted, even if no evidence had been presented concerning the charges involving Jane Doe Two. Moreover, it appears the jurors came to their decision in a careful manner, particularly given that they acquitted defendant of the charges involving Jane Doe Two. C. Denial of Motion to Sever (Counts Four and Five Involving Jane Doe Two)
Defendant contends the trial court abused its discretion in denying his motion to sever counts four and five involving Jane Doe Two from the remainder of the charges. We disagree, and again we find a lack of prejudice.
"An accusatory pleading may charge two or more different offenses connected together in their commission . . . or two or more different offenses of the same class of crimes . . . ." (§ 954.) However, a trial court "in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately." (§ 954.)
The law favors consolidation of charges in the interest of judicial economy. (People v. Scott (2015) 61 Cal.4th 363, 395.) We review a ruling on a defendant's motion to sever charges for abuse of discretion, considering the record before the trial court when it made its ruling. (People v. Soper (2009) 45 Cal.4th 759, 774.) A defendant must make a clear showing of prejudice; the ruling amounts to abuse of discretion only if it falls outside the bounds of reason. (Ibid.) A defendant seeking severance of the same "'class of crimes'" must show that a substantial danger of prejudice compels severance. (People v. Geier (2007) 41 Cal.4th 555, 574-575, overruled on other grounds in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 345.)
To determine whether a trial court abused its discretion, we consider whether the evidence is cross-admissible in hypothetical separate trials. (People v. Soper, supra, 45 Cal.4th at pp. 774-775.) Cross-admissibility is "normally sufficient to dispel any suggestion of prejudice and to justify a trial court's refusal to sever properly joined charges." (Id. at p. 775.) If the evidence is not cross-admissible, a reviewing court must then consider: (1) "whether some charges are particularly likely to inflame the jury against defendant"; (2) "whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges"; and (3) "whether one of the charges . . . is a capital offense." (Id. at p. 775.) "We then balance the potential for prejudice to the defendant from a joint trial against the countervailing benefits to the state." (Ibid.) Even if a trial court's ruling on a motion to sever is correct, reversal still may be warranted if the ruling "'"resulted in 'gross unfairness' amounting to a denial of due process."'" (People v. Scott, supra, 61 Cal.4th at p. 396.)
Here, the trial court found that the crimes concerning Jane Doe Two were of the same class of crimes as the remainder of the charged offenses. The court was undoubtedly correct. The crimes involving Jane Doe Two were both sex related offenses. The remainder of the crimes were sex related offenses concerning Jane Doe One, her alleged witness intimidation concerning those sex offenses, as well as defendant's alleged possession and control of child pornography.
The trial court also found cross-admissibility. A computer forensic expert testified in a pretrial hearing that the explicit photographs of Jane Doe Two and her sister, Jane Doe Three, were found on a computer in defendant's home, along with other images of child pornography found on the same computer. Because of the child pornography charge, and the necessity to prove defendant's access and control of the home computer, the evidence concerning Jane Doe Two would have been cross-admissible in a hypothetical separate trial. Thus, the trial court's ruling was again undoubtedly correct.
Moreover, the potential prejudice did not outweigh the Legislature's preference for joinder of trials concerning the same class of crimes. (See § 954.) Defendant is correct that the charges concerning Jane Doe Two were weaker than the remainder of the charges (as demonstrated by the jury's verdicts). But it is not clear that the nature of the charges as to Jane Doe Two (child molestation, and inducing a minor to engage in sexual conduct for a photograph) were likely to inflame the jury, given the overlapping nature of the remaining charges (kidnapping for the purpose of child molestation, child molestation, witness intimidation of the molested child, and possession of child pornography). This does not appear to be a situation where a weak case has been joined with a strong case, such that it would alter the outcome as to some of the charges.
Finally, there is no evidence defendant suffered a denial of due process. The trial court properly instructed the jury on the elements of each count, the People's burden of proof, and the jury's responsibility to decide each count separately. (See Analysis discussion regarding prejudice, infra.) D. Admission of Illicit Photographs (Jane Doe Two)
Defendant argues that the trial court improperly admitted the illicit photographs of Jane Doe Two on three grounds: there were irrelevant, they lacked foundation, and they were more prejudicial than probative. We disagree, and again we find a lack of prejudice.
"We review claims regarding a trial court's ruling on the admissibility of evidence for abuse of discretion. [Citations.] Specifically, we will not disturb the trial court's ruling 'except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Goldsmith (2014) 59 Cal.4th 258, 266.) "'Relevant evidence' means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)
Here, the photographs of Jane Doe Two were the basis of the charge that defendant induced Jane Doe Two to engage in sexual conduct for a photograph. (§ 311.4, subd. (c).) Thus, the photographs had a "tendency in reason" to prove the section 311.4, subdivision (c), charge. The photographs were unquestionably relevant.
A photograph is considered a "writing" within the meaning of the Evidence Code. (Evid. Code, § 250.) "Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is . . . ." (Evid. Code, § 1400.) "If the proponent of the evidence fails to carry his burden of showing the printed representation accurately depicts what it purportedly shows, the evidence is inadmissible for lack of adequate foundation." (People v. Chism (2014) 58 Cal.4th 1266, 1303.)
Here, prior to trial, the testimony of a forensic expert and Detective Johnson established that the series of six illicit photographs were taken within a 10-minute time frame and included two photographs of Jane Doe Two's face. Thus, the trial court properly found that adequate foundation had been laid for the admission of the photographs because the evidence sufficiently demonstrated that the photographs were what the People purported them to be: illicit photographs of Jane Doe Two and her sister, Jane Doe Three. Defendant argues that there were no facts connecting him to the photographs and therefore "the trial court abused its discretion by allowing the evidence to be admitted." But defendant apparently misapprehends the nature of foundational evidence. The People merely needed to establish that the photographs were what they purported to be. Defendant was not prevented from either establishing or arguing at trial that he was unconnected to the photographs.
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) "'The prejudice which [section 352] is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' [Citations.] 'Rather, the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors.'" (People v. Zapien (1993) 4 Cal.4th 929, 958.)
Here, as previously discussed, the illicit photographs of Jane Doe Two were necessarily relevant in order for the prosecution to attempt to prove to the jury that defendant induced Jane Doe Two to engage in sexual conduct for a photograph. (§ 311.4, subd. (c).) The photographs were not prejudicial within the meaning of section 352; they were relevant and necessary in the jury's determination of defendant's guilt or innocence. (See Analysis discussion regarding prejudice, infra.)
In sum, the trial court did not abuse its discretion by admitting the illicit photographs of Jane Doe Two. E. Cruel and Unusual Punishment
The trial court sentenced defendant to two years and eight months, plus 15 years to life in prison. The 15 years to life sentence was imposed because the jury found true a sentencing allegation that in the commission of the child molestation charge against Jane Doe One, defendant committed a kidnapping. (§ 667.61, subds. (b) & (e)(1).) Defendant challenges his sentence under the Eighth Amendment of the federal Constitution and under article I, section 17, of the California Constitution. Defendant is not making a facial challenge to the section 667.61 sentencing enhancement. Rather, defendant argues that the law as applied to him is cruel and unusual. We disagree.
A sentence violates the federal Constitution if it is grossly disproportionate to the severity of the crime, and it violates the California Constitution if "'it shocks the conscience and offends fundamental notions of human dignity.'" (People v. Alvarado (2001) 87 Cal.App.4th 178, 199.) Generally, it is 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 a court that the punishment imposed is disproportionate to his or her culpability. (People v. Wingo (1975) 14 Cal.3d 169, 174.)
To determine whether a sentence is disproportionate, courts generally: 1) examine the nature of the offense and the offender, "with particular regard to the degree of danger both present to society"; 2) compare the punishment imposed to punishments for other offenses; and 3) compare the punishment imposed to other jurisdictions' punishments for the same offense. (In re Lynch (1972) 8 Cal.3d 410, 425-429 (Lynch ).) The court considers the totality of circumstances when applying the three Lynch factors. (People v. Rhodes (2005) 126 Cal.App.4th 1374, 1389.) Whether a sentence constitutes cruel or unusual punishment is a question subject to de novo review. (Id. at p. 1390.)
As to the first Lynch factor concerning the nature of the offense and the offender, California has a "strong public policy to protect children of tender years." (People v. Olsen (1984) 36 Cal.3d 638, 646.) And an allegation that defendant kidnapped the victim of a sexual offense under section 667.61 does not require a finding that the defendant kidnapped the victim with the intent to commit a sexual offense. (People v. Luna (2012) 209 Cal.App.4th 460, 466.) Rather, "the Legislature determined [that] a defendant who kidnaps the victim . . . places the victim in a position of elevated vulnerability," and therefore once the defendant "commits a sexual offense against the same victim, [the defendant] should meet the requirements of a serious and dangerous sex offender under section 667.61." (Id. at p. 471.)
Here, we accept defendant's representations that he has no prior criminal record and has a low risk of reoffending according to a test he apparently was given. And we take note that the circumstances of this particular offense did not involve the intimate touching of Jane Doe One. However, the Legislature's intent is plain as to the sentencing enhancement and we find that it must predominate under these circumstances. (See People v. Luna, supra, 209 Cal.App.4th at p. 471 ["Section 667.61 'was enacted to ensure serious and dangerous sex offenders would receive lengthy prison sentences upon their first conviction'"].)
In his briefing, defendant failed to cite the record as to these factual representations. (See Cal. Rules of Court, rule 8.204(a)(2)(C) [opening brief must provide summary of facts limited to matters in record].)
The second Lynch factor also weighs against defendant. The sentence defendant received is not disproportionate when compared to other crimes that mandate sentences similar to or longer than his sentence. (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, defendant has failed to compare his sentence to sentences imposed in other jurisdictions for the same offense.
We conclude that defendant has failed to meet his "considerable burden" to persuade us that his sentence is disproportionate to his culpability. (See People v. Wingo, supra, 14 Cal.3d at p. 174.)
III
DISPOSITION
The judgment is affirmed.
MOORE, J. WE CONCUR: O'LEARY, P. J. ARONSON, J.