Opinion
F073234
03-13-2018
THE PEOPLE, Plaintiff and Respondent, v. JAVIER ROMERO OQUITA, Defendant and Appellant.
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez, Gregory B. Wagner and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF322060)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. H. N. Papadakis, Judge. (Retired Judge of the Fresno Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez, Gregory B. Wagner and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
During a road trip to visit relatives, defendant Javier Romero Oquita rented a motel room, where he watched a pornographic movie and moved his nephew's hand and head toward his exposed penis. He was subsequently convicted of two counts of committing a forcible lewd act against a child under the age of 14 years (Pen. Code, § 288, subd. (b)(1)) (counts 1 & 2) and one count of sending or exhibiting harmful matter to a minor (§ 288.2, subd. (a)) (count 3). Defendant was sentenced to a total determinate term of 10 years in state prison as follows: the middle term of two years on count 3, a consecutive middle term of eight years on count 1 and, concurrent with the term on count 1, the middle term of eight years on count 2.
All further statutory references are to the Penal Code.
On appeal, defendant claims the trial court erred in failing to instruct the jury sua sponte on the lesser included offense of attempted forcible lewd conduct (§§ 664/288, subd. (b)(1)), and the error was prejudicial under both the federal standard of review articulated in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) and the state law standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). Defendant also claims the trial court erred in imposing a full, consecutive sentence on count 1. In supplemental briefing, defendant claims the court erred in awarding him 611 days of custody credit rather than 612 days. He requests we correct this error and direct the trial court to issue an amended abstract of judgment.
Defendant was initially sentenced to a total determinate term of 11 years in prison. As discussed, post, he was resentenced to a term of 10 years after the California Department of Corrections and Rehabilitation (CDCR) notified the trial court of an error with respect to the sentencing triad for count 3. Following this resentencing, defendant withdrew the fourth and fifth arguments set forth in his opening brief.
In response, the People contend defendant's instructional error claim is barred by the invited error doctrine. Alternatively, they contend the trial court did not have a sua sponte duty to instruct the jury on attempted forcible lewd conduct because the instruction was not supported by substantial evidence and any error was harmless. They also contend defendant forfeited his sentencing error claim because he failed to object in the trial court and any error was harmless. The People agree defendant is entitled to one additional day of custody credit and they join in his request for the issuance of an amended abstract of judgment.
We conclude the trial court did not err in failing instruct the jury sua sponte on attempted forcible lewd conduct but, even if we assume error occurred, it was not prejudicial. With respect to defendant's challenge to his consecutive sentence on count 1, we reject his claim that the trial court was unaware of the scope of its sentencing discretion and we conclude that the court's error in failing to give a statement of reason for imposing a consecutive term under section 667.6, subdivision (c), was harmless. We accept the People's concession regarding defendant's custody credits, modify the judgment to reflect an award of 612 days of custody credit and direct the trial court to issue an amended abstract of judgment.
In light of this conclusion, we do not reach defendant's argument that his trial counsel's failure to object to the sentence constituted ineffective assistance of counsel.
FACTUAL SUMMARY
I. Prosecution Case
A. M.H.
Victim M.H., who is defendant's nephew, was 13 years old at the time of the offenses committed against him and at the subsequent trial. M.H. testified that in early August 2015, he and defendant left El Centro for Sanger to visit family. Defendant previously lived with M.H.'s family and M.H. testified that prior to this trip, they were close and had a good relationship.
We refer to the victim and some witnesses by their initials. (Cal. Rules of Court, rule 8.90(b)(4), (11).)
After they departed, defendant began talking about sexually explicit topics, including having sex with men and women, engaging in oral sex and hiring prostitutes. Defendant also talked to M.H. about defendant's penis, he had "lube" with him and he told M.H. he had "a lot [of condoms] in his luggage." M.H. alerted his mother by phone that things were "strange" and she began to call M.H. every 30 to 60 minutes. As they traveled, M.H. was unaware of their location because defendant would tell him one thing, but M.H. would see road signs that said another. At one point, defendant told M.H. to tell his mother they were staying in Pasadena with friends and not to tell her they were staying in a motel. When they stopped at a restaurant to eat, M.H. called his mother from the restroom and told her what defendant was saying. He also told her that defendant told him to lie to her.
M.H. testified that in the car, defendant kept grabbing his own penis and rubbing it. He also kept talking about sexual things to M.H. M.H. stated he and defendant had never had a conversation like that before and while he had not previously felt uncomfortable around defendant, this conversation made him very uncomfortable.
M.H. also testified he saw defendant take pills several times. One time defendant crushed the pill and ate it. Another time, he sent M.H. inside to pay for gasoline and told M.H. "he couldn't get [out] because he had [a] boner." As M.H. was returning to the car, he saw defendant take another pill. Defendant continued to rub himself and talk about sexual things.
M.H. testified defendant told him that by the end of the trip he was going to have several hundred dollars. After first telling M.H. they were going to stop in Pasadena, defendant said they were about 30 minutes from Sanger but were going to stop at a motel because he was tired, although he did not appear to be tired to M.H. Defendant told M.H. he was going to do something for defendant and when M.H. asked what defendant meant, defendant said he would see. Defendant also told M.H. he was going to help defendant do something before defendant went to sleep and defendant would give him another $100 in the morning. Defendant told M.H. not to say anything about their location, the motel, what defendant was saying or the things defendant wanted to do.
M.H. expected the motel room to have two beds, but it only had one. M.H. testified he got underneath both blankets on the bed. Defendant told him they were both going to shower because he wanted M.H.'s "butt to be clean." M.H. responded that he did not need a shower and he told his two sisters by text what was happening. M.H. had told his mother he and defendant were at a motel and she called defendant, who was then in the bathroom taking a shower.
Defendant eventually came out of the bathroom with only a towel wrapped around him. He laid down next to M.H. on the bed and took off his towel, exposing his naked body. M.H. testified that when defendant got under the blankets, he got back on top of the blankets. Defendant then moved the blankets out of the way.
Defendant pulled M.H. closer to him, as if to cuddle with him. M.H. kept pulling away. Defendant grabbed M.H.'s hand and moved it toward defendant's penis approximately three times, but M.H. pulled his hand away. Defendant also put a $100 bill under his penis and told M.H. to get it, but M.H. did not do so. Defendant put his hand behind M.H.'s head and pushed it down toward defendant's penis. Defendant kept telling him, "[J]ust a little," which M.H. interpreted to mean engage in oral sex.
At first, the news was on the television, but, after defendant showered, he changed the channel to something pornographic. Defendant kept fondling his own penis and telling M.H. to watch the pornographic movie with him, but M.H. declined to do so.
M.H.'s mother called him again and he then told defendant he needed to charge his phone. Defendant directed M.H. to use the charger in the car and he unlocked it for M.H. Defendant then winked at M.H., said he had to take care of some business and went back inside the motel room. When M.H. told his mother what was going on, she told him to run and call 911. M.H. then ran and hid behind a green shipping container near a gas station. As he was waiting for police to arrive, he saw defendant drive by twice.
B. L.G.
M.H.'s mother, L.G., testified she lives in El Centro and defendant is her uncle. She explained she, defendant and M.H. had planned to travel to Sanger together, but she was unable to go because of a medical appointment. Defendant used to live with her, and M.H. would sometimes go to the store with him, but the trip to Sanger was the first long trip M.H. had taken alone with defendant. L.G. testified she had a lot of confidence in defendant and trusted him to take care of her son.
L.G. testified that after defendant and M.H. left on their trip, something M.H. told her over the phone made her uncomfortable. As a result, she talked to M.H. many times during the trip. She also talked to defendant to distract him and she sometimes spoke with both of them at the same time on two separate phones, one on each ear.
L.G. was directed not to state what M.H. told her.
At one point, defendant told L.G. they were in Pasadena. She told M.H. to look for road signs, but he was very nervous and unable to tell her where they were because defendant "was having a strange conversation." L.G. testified defendant never told her they were staying at the motel, but M.H. did. She told M.H. to be careful and watch his uncle, and to run and call the police if he felt fearful or in danger.
C. Other Testimony
Tulare County Sheriff's Deputies Sara Olmos and Jerry Diaz testified. Olmos testified that she recovered from defendant's travel bags cell phones, five packages of blue, individually packaged pills labeled Edegar and two packages of 21-24 individually packaged pills labeled Vivarin/caffeine alertness aid pills.
Diaz responded to M.H.'s 911 call and located him behind the green shipping container. He testified M.H. was nervous and scared, and was hiding from his uncle. M.H. told police that defendant had crushed up a pill and taken it. He also told them that defendant placed his hand behind M.H.'s head, pushed it toward defendant's penis and said, "Just try it for a little bit. Put it in your mouth." M.H. jerked his head away at that point and defendant told him not to tell anyone. M.H. also told Diaz that prior to arriving at the motel, defendant was having sexual conversations with him, and he had a gut feeling it was wrong and called his mother.
When Diaz subsequently entered the motel room, a pornographic movie was playing on the television and, during a recorded questioning, defendant told Diaz he took a Viagra and was planning to look for a male or female sex partner at a nightclub, although he could not name the club. Diaz also testified that at the time of questioning, he observed defendant had an erection.
Defendant told Diaz he wanted to watch pornography because he was sexually aroused and he confirmed M.H. was in the room. Defendant said he only touched M.H.'s head to push it away so he could go outside to make a telephone call. After M.H. left, defendant told him not to go anywhere, to stay in the car, and not to talk to anyone. Defendant told Diaz a few times that he "wanted ... to take care of business," by which defendant meant masturbate. Diaz also testified that defendant told him the motel offered them a room with two beds, but defendant requested a single bed and said M.H. was like a son to him. Defendant further stated that he told M.H. he was always alone, but this time he had M.H. with him, and that he told M.H. not to say anything.
On cross-examination, Diaz testified defendant denied having any sexual intent toward M.H. or making any sexual advances toward him. Defendant also stated he did not intentionally expose his penis to M.H. and he denied placing any money under his penis and telling M.H. to get it. He told Diaz that M.H. was a liar.
II. Defense Case
The defense called three witnesses to testify about defendant's good character. Defendant's sisters, V.P. and M.F., testified that defendant lived with them at times and he never engaged in any inappropriate conduct with their children. Both also testified that defendant would sometimes give their children money, but he did not expect anything in return. C.R., whose sons are defendant's nephews, also testified that he never behaved inappropriately toward her children and would give them money for things without expecting anything in return.
M.F. testified that when defendant came to visit, he always stayed in a motel about 20 miles away and arrived at the house in the morning. She said he never disturbed them in the middle of night.
Additionally, V.P. spoke with M.H. and L.G. after defendant was arrested. She testified M.H. denied that defendant touched him or did anything to him, and he told her his mother told him to run and call 911. M.H. told V.P. there was a pornographic movie on the television, but that was not why he called the police. V.P. testified that when she told M.H. he knew what he did and asked him what he was doing, he smiled and told her just to pay defendant's bail. She conceded, however, that she did not know what M.H. and his mother said during their telephone conversations, and she did not know why L.G. told M.H. to run. She also conceded that when she asked M.H. why defendant was arrested, he told her, "I know what he wanted and where that was going."
Defendant also testified. He said he had planned to spend two weeks in Sanger visiting family and was going alone until L.G. asked him to take M.H. with him. However, L.G. did not have any money and M.H. needed some items, including razors, so defendant told them both he would give M.H. $100.
Defendant picked M.H. up around 4:00 in the afternoon. He testified that after they departed, M.H. asked him if he was buying M.H.'s company and told him L.G. said he was paying for M.H.'s accompaniment. Defendant responded that he had not planned to take M.H., M.H. was a hindrance to him, and the money he gave M.H. was for razors, pizza and candies for everyone.
Defendant testified M.H. was making many phone calls, was impatient and nervous, and was texting a lot. Defendant said he was pointing out road signs to M.H. and telling him where they were as they traveled. He denied he told M.H. to lie about seeing friends in Pasadena and he denied he told M.H. to lie to his mother at all. He admitted, however, that he lied to M.H.'s mother about staying with friends in Los Angeles.
Defendant testified that just prior to reaching Kingsburg at approximately 2:00 in the morning, he checked out a rest stop and told M.H. he was going to ask a favor. He said he was going to rent a motel room for M.H., have a beer and cigarette, and return to the rest stop. He asked M.H. what time he should pick M.H. up in the morning and M.H. told him 10:00. Defendant told M.H. not to tell his mother defendant was going to leave the room and return to the rest stop, but he said he knew M.H. was going to tell her because he was telling her everything.
When defendant went to take a shower, L.G. called him and told him to continue on to Sanger, but he told her it was too late. She told him M.H. was a very nervous person and was scared of everything.
After his shower, defendant wrapped a towel around his waist. M.H. was asleep on the bed underneath the top cover. Defendant testified he laid down and told M.H. to get his pillow from the car. When M.H. went to lie down again, defendant told him to get under the bottom cover. Defendant started to change the television channels and a pornographic movie came on. M.H. was texting and defendant told him to get out. After M.H. said he needed to charge his phone, defendant told him to go, grabbed him and pushed him. Defendant testified he told M.H., "You know what, get out. Get out." Defendant explained he was angry because he was fed up with all the calls. After M.H. refused to leave, defendant got up. He threw off his towel and put his shorts on. He told M.H. to get out of the room and stay in the car. Defendant opened the car for M.H. and told him to stay in the car, not to talk to anyone and not to open the door for anyone.
Defendant testified he later told M.H. he was going, but would leave the car there. He then returned to the room and was watching the movie when M.H.'s sister called. She wanted to talk to M.H. When defendant opened the door, M.H. was not in the car so he told M.H.'s sister that M.H. had gone to the store. He then grabbed his keys and went to look for M.H.
On cross-examination, defendant testified that once a year, he would go to the rest stop to meet a stranger for sex. When asked why he did not then just rent a second room at the motel, defendant said he did not know if he was going to do that or go somewhere with whomever he met.
Defendant acknowledged telling police he wanted to watch a pornographic movie, but denied telling them he was sexually aroused or had an erection. He testified he took a Viagra about 30 minutes before reaching the motel in case he met someone at the rest stop for sexual relations, but he did not have an erection. He said that after driving by the rest stop to check it out, he pointed out to M.H. where he would be and he rented the motel room. He also acknowledged he was offered a room with two beds in it, but he only needed one bed because M.H. was like a son to him.
Although defendant's statement to police was recorded and transcribed, defendant continued to maintain that he did not tell police he had an erection because of the Viagra he took. He also maintained that he told police he was planning to go to the rest stop, although no such statement was in the transcript.
Defendant acknowledged he told M.H. about meeting people at the rest stop for sex. When questioned by the prosecutor regarding why he would talk to a 13-year-old about having sex with strangers, defendant said M.H. stated he also had sexual relations.
Defendant testified he did not get under the covers with M.H. and, prior to lying down on the bed, he had told M.H. to leave. He testified he wanted "to get ready," and because he had a bad trip with M.H., "it wasn't easy ... to get horny." He then denied wanting to get "horny." but said he had not "experimented [before] with Viagra." When asked if he winked at M.H. and told M.H. he was going to take care of business in the room, defendant responded, "Not really." Questioned about that equivocation, he said he "wasn't [paying] too much attention as to what was going on but [he] was putting on sandals, a T-shirt." He acknowledged the pornographic movie continued to play and was still playing when the police arrived at the motel room.
Finally, defendant testified he and M.H. had a good relationship prior to the road trip, and they did not fight that day or prior to that day. He also said there was no reason for M.H. to be mad at him and he did not know why M.H. would lie about defendant getting naked, pulling M.H.'s hand toward his penis and pushing M.H.'s head toward his penis.
DISCUSSION
I. Instructional Error
A. Background
Defendant was charged with and convicted of two counts of forcible lewd conduct under section 288, subdivision (b)(1). Count 1 was based on defendant's act of moving M.H.'s hand toward defendant's penis and count 2 was based on defendant's act of pushing M.H.'s head toward defendant's penis. In addition to instructing the jury on the charged offense of forcible lewd conduct, the trial court instructed the jury on nonforcible lewd conduct (§ 288, subd. (a)), attempted nonforcible lewd conduct (§§ 664/288, subd. (a)), and simple assault (§ 240) as the lesser included offenses. Defendant claims the trial court erred when it failed to also instruct the jury on attempted forcible lewd conduct (§§ 664/288 subd. (b)(1)) as a lesser included offense.
"'A trial court has a sua sponte duty to "instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser." [Citation.] Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense. "The rule's purpose is ... to assure, in the interest of justice, the most accurate possible verdict encompassed by the charge and supported by the evidence." [Citation.] In light of this purpose, the court need instruct the jury on a lesser included offense only "[w]hen there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of" the lesser offense.'" (People v. Landry (2016) 2 Cal.5th 52, 96, quoting People v. Shockley (2013) 58 Cal.4th 400, 403-404; accord, People v. Simon (2016) 1 Cal.5th 98, 132.) "Speculative, minimal, or insubstantial evidence is insufficient to require an instruction on a lesser included offense." (People v. Simon, supra, at p. 132; accord People v. Williams (2015) 61 Cal.4th 1244, 1264; People v. Harris (2008) 43 Cal.4th 1269, 1298 & fn. 10.)
"On appeal, we independently review whether a trial court erroneously failed to instruct on a lesser included offense." (People v. Trujeque (2015) 61 Cal.4th 227, 271; accord, People v. Waidla (2000) 22 Cal.4th 690, 733.)
B. Analysis
1. Invited Error
As an initial matter, we reject the People's argument that the failure to instruct on attempted forcible lewd conduct was invited error. "'"The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given."' [Citations.] [¶] Nevertheless, the claim may be waived under the doctrine of invited error if trial counsel both '"intentionally caused the trial court to err"' and clearly did so for tactical reasons. [Citation.] Invited error will be found, however, only if counsel expresses a deliberate tactical purpose in resisting or acceding to the complained-of instruction." (People v. Souza (2012) 54 Cal.4th 90, 114; accord, People v. Moore (2011) 51 Cal.4th 386, 410; see People v. O'Malley (2016) 62 Cal.4th 944, 984.)
In this case, the parties stipulated to the jury instructions on the record, but their discussion of the instructions occurred off the record. As a result, we cannot determine whether the instruction was considered or simply overlooked. Given the record's silence on this issue, there is no basis for a finding that trial counsel, as a matter of tactical choice, invited the error. (People v. Souza, supra, 54 Cal.4th at p. 114; People v. Moore, supra, 51 Cal.4th at p. 410.)
2. Necessity of Instruction
The parties agree attempted forcible lewd conduct is a lesser included offense of forcible lewd conduct. (See People v. Banks (2014) 59 Cal.4th 1113, 1160, abrogated in part on another ground in People v. Scott (2016) 61 Cal.4th 363, 391, fn. 3; People v. Shockley, supra, 58 Cal.4th at p. 404; People v. Braslaw (2015) 233 Cal.App.4th 1239, 1248.) However, as we have stated, a trial court's sua sponte duty to instruct is triggered only if the lesser included offense was supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman); accord, People v. Landry, supra, 2 Cal.5th at p. 96; People v. Simon, supra, 1 Cal.5th at p. 132.) Therefore, we consider whether there was substantial evidence that an element of the charged offense of forcible lewd conduct was missing but that defendant was guilty of attempted forcible lewd conduct. (People v. Landry, supra, at p. 96; People v. Shockley, supra, at pp. 403-404.)
"Section 288[, subdivision ](a) prohibits the commission of a lewd or lascivious act on a child under age 14 done with the intent to arouse or satisfy the sexual desires of the perpetrator or the child." (People v. Soto (2011) 51 Cal.4th 229, 237.) "'Any touching of a child under the age of 14 violates ... section [288], 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.'" (People v. Shockley, supra, 58 Cal.4th at p. 404, quoting People v. Lopez (1998) 19 Cal.4th 282, 289; accord, People v. Martinez (1995) 11 Cal.4th 434, 444-445.) Section 288, subdivision (b)(1), under which defendant was convicted, further prohibits the commission of such an act "'by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person ....'" (People v. Soto, supra, at p. 237.) "[T]he harsher penal consequences of a conviction under section 288[, subdivision ](b), as compared to section 288[, subdivision ](a), require that the force used for a subdivision (b) conviction be 'substantially different from or substantially greater than that necessary to accomplish the lewd act itself.'" (Id. at p. 242.) Relevant here, attempted lewd conduct requires the prosecutor to prove "(1) the defendant intended to commit a lewd and lascivious act with a child under 14 years of age, and (2) the defendant took a direct but ineffectual step toward committing a lewd and lascivious act with a child under 14 years of age." (People v. Singh (2011) 198 Cal.App.4th 364, 368; accord, People v. Villagran (2016) 5 Cal.App.5th 880, 890; People v. Hanna (2013) 218 Cal.App.4th 455, 462.)
Defendant denied touching M.H. inappropriately or making sexual advances toward him. In his appeal, he claims "substantial evidence supported the theory that [his] actions on the way to and within the motel room were merely an attempt or [in]direct step toward committing the charged offenses of forcible lewd act" and "a reasonable jury could have viewed [his] actions and behavior as mere preparation toward the commission of a forcible lewd act, but not a forcible lewd act in itself."
Defendant's argument would have more force if the trial court had not instructed the jury on attempted nonforcible lewd conduct. It did, however, and defendant does not more precisely articulate the basis for his claim that substantial evidence supported an instruction on attempted forcible lewd conduct, in addition to and as distinguished from the attempted lewd conduct instruction given. Acceptance of defendant's claim of error would require us to agree there was substantial evidence he intended to commit a forcible lewd act but did not complete the lewd act. In this case, however, the prosecutor's theory was, and the evidence showed, that the acts of pushing M.H.'s hands and head toward defendant's exposed penis were both the force and the lewd acts. Thus, this case did not involve substantial evidence of multiple acts from which a reasonable jury might have found that force was used or initiated, but that the lewd acts were not completed.
Defendant does not direct our attention to any cases that addressed the issue presented here: a challenge to the failure to instruct sua sponte on attempted forcible lewd conduct where an instruction on attempted nonforcible lewd conduct was given. We note that in People v. Memro (1985) 38 Cal.3d 658, 697-698, footnote 48, overruled in part on another ground by People v. Gaines (2009) 46 Cal.4th 172, 181, footnote 2, the California Supreme Court observed "[t]here are very few appellate decisions involving attempted section 288 violations."
As the completed crime of forcible lewd conduct and the attempted crime of forcible lewd conduct require the same mental state (People v. Singh, supra, 198 Cal.App.4th at p. 368), defendant's argument that he did not make sexual advances or touch M.H. sexually is of no assistance as related to the instructional error claim he advances. In convicting defendant, the jury obviously found that defendant possessed the requisite "intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of" himself or M.H. (§ 288, subd. (a).)
Defendant argues he "accused [M.H.] of lying" and "[t]he jury could have reasonably believed that [he] did not forcibly touch [M.H.], but that he was preparing to commit a forcible lewd act." In that event, however, no forcible touching occurred and the attempted nonforcible lewd conduct instruction given was sufficient. On the facts of this case, we are not convinced there was substantial evidence from which a reasonable jury could conclude that defendant committed the lesser offense of attempted forcible lewd conduct but not the greater offense of forcible lewd conduct. In any event, even if we assume the trial court should have instructed the jury sua sponte on attempted forcible lewd conduct, the error was harmless.
We note the jury instruction on forcible lewd conduct given by the trial court identified attempted forcible lewd conduct as a lesser included offense. (Judicial Council of Cal., Crim. Jury Instns. (2017) Bench Notes to CALCRIM No. 1111, p. 955.) As previously stated, the record does not permit us to discern whether an instruction on attempted forcible lewd conduct was discussed.
3. Any Error Harmless
As an initial matter, defendant argues that the federal constitutional standard articulated in Chapman applies to his instructional error claim. The California Supreme Court has rejected this argument, however, explaining that "[i]n noncapital cases, 'the rule requiring sua sponte instructions on all lesser necessarily included offenses supported by the evidence derives exclusively from California law.' [Citation.] As such, 'in a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under ... Watson[, supra,] 46 Cal.2d [at page 836].' [Citations.] '"[M]isdirection of the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal constitutional error are reviewed under the harmless error standard articulated" in Watson.' [Citations.] '[U]nder Watson, a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error.'" (People v. Beltran (2013) 56 Cal.4th 935, 955; accord, People v. Banks, supra, 59 Cal.4th at p. 1161; People v. Ngo (2014) 225 Cal.App.4th 126, 158.)
Under Chapman, courts "must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error." (People v. Merritt (2017) 2 Cal.5th 819, 831; accord, Neder v. United States (1999) 527 U.S. 1, 15-16; People v. Gonzalez (2012) 54 Cal.4th 643, 663). "[I]n order to conclude that an instructional error '"did not contribute to the verdict"' within the meaning of Chapman [citation] [courts] must '"find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record."' [Citations.]" (People v. Brooks (2017) 2 Cal.5th 674, 742.)
Defendant relies on People v. Thomas (2013) 218 Cal.App.4th 630, 646 (Thomas), for the proposition that Chapman applies. Thomas, however, is inapposite. In Thomas, the Court of Appeal addressed a claim of instructional error where the trial court refused to give a provocation instruction in a murder case. (Id. at p. 633.) The court concluded the error was subject to harmless error review under the more stringent Chapman standard. (Thomas, supra, at pp. 643-644, 646.)
Thomas involved the trial court's refusal to give a requested instruction rather than a sua sponte duty to instruct and, on this basis, the Thomas court distinguished Breverman's holding that "failure to instruct sua sponte on voluntary manslaughter as a lesser necessarily included offense is reviewed under Watson ...." (Thomas, supra, 218 Cal.App.4th at p. 644, citing Breverman, supra, 19 Cal.4th at p. 149.) The Thomas court also reasoned that "[i]f provocation is properly presented in a murder case, then, proving the element of malice requires the People to prove the absence of provocation beyond a reasonable doubt" (Thomas, supra, at p. 644, citing People v. Rios (2000) 23 Cal.4th 450, 462) and "'[j]ury instructions relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violate the defendant's due process rights under the federal Constitution.'" (Thomas, supra, at p. 644, quoting People v. Flood (1998) 18 Cal.4th 470, 491.)
As in Breverman and as distinguishable from Thomas, the error here involves a sua sponte duty to instruct rather than the refusal to give a requested instruction. (See People v. Peau (2015) 236 Cal.App.4th 823, 830 ["Thomas does not necessarily resolve whether an error in failing to give ... an instruction sua sponte is also one of federal constitutional dimension."].) Moreover, defendant does not claim the instructional error here relieved the prosecution of its burden of proving each element of the offense by a reasonable doubt, thereby violating his right to due process. (See People v. Ngo, supra, 225 Cal.App.4th at p. 158, fn. 20, citing Thomas, supra, 218 Cal.App.4th at p. 643.) Accordingly, we find defendant's reliance on Thomas unpersuasive in this context. (See People v. Millbrook (2014) 222 Cal.App.4th 1122, 1146 ["The full import of Thomas is ... unclear."].) We are bound by the decisions of our high court (K.R. v. Superior Court (2017) 3 Cal.5th 295, 308-309) and, therefore, we apply Watson to the claim presented here (People v. Banks, supra, 59 Cal.4th at p. 1161; People v. Ngo, supra, at p. 158).
Under Watson, the harmless error test "'focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.'" (People v. Beltran, supra, 56 Cal.4th at p. 956, quoting Breverman, supra, 19 Cal.4th at p. 177.)
This is, as defense counsel argued at trial, a "he said, he said case." (See People v. Jones (1990) 51 Cal.3d 294, 322 [recognizing credibility is usually the issue in these cases].) However, the prosecution's case was strong. We need not exhaustively recite every detail adduced, but M.H. was 13 years old, the trial occurred only months after the offenses and M.H. described in clear testimony a long car ride during which defendant talked about sexually explicit matters. During the ride, defendant fondled himself and had an erection.
Once at the motel, defendant turned down a room with two beds in favor of a room with only one bed, and he told M.H. they were both going to take showers because he wanted M.H.'s bottom clean. After defendant emerged from the shower, he dropped his towel and laid down next to M.H. on the bed naked with his penis fully exposed. He changed the television channel to a pornographic movie and fondled himself. He also urged M.H. to touch him and to put his penis in M.H.'s mouth, and he tried to force M.H.'s hand and head to his penis. M.H. was in touch with his mother and sisters during the trip and M.H.'s mother was so concerned by what he told her that she called him every 30 to 60 minutes, eventually telling him to run and call 911. Moreover, M.H.'s testimony was corroborated in part by Deputy Diaz, who saw the pornographic movie playing in the motel room and observed defendant's erection, and by some of defendant's own testimony and admissions.
The defense case centered on persuading the jury that M.H. lacked credibility, that defendant had a good character and that defendant neither touched M.H. sexually nor had any sexual intentions toward M.H. The jury necessarily considered this evidence in the context of defendant's admissions that he watched a pornographic movie in M.H.'s presence, talked to M.H. about having sex with strangers and took Viagra in preparation for a possible sexual encounter. As well, although defendant denied he had an erection during police questioning or told Deputy Diaz he was aroused, these statements were inconsistent with his recorded statement to police.
Defendant acknowledges the jury was instructed on nonforcible lewd conduct and attempted nonforcible lewd conduct, but argues the jury faced "an all-or-nothing choice between convicting [defendant] of committing a forcible lewd act or acquitting him of that charge" and the jury "opted to convict [him] of the only crime available to them." We do not agree the jury was given an all or nothing choice in this case but, in any event, we conclude the asserted error was harmless. This case did not involve evidence of force separate and apart from that which also constituted the lewd touching that was alleged. Thus, evidence of attempted forcible lewd conduct was, at best, so weak as to be insubstantial. If the jury believed defendant, the requisite intent would have been absent and defendant was entitled to acquittal. If the jury believed M.H., as it did here, the forcible lewd acts were complete when defendant pushed M.H.'s hand and head toward his penis. Under these circumstances, we conclude it is not reasonably probable the jury would have reached a more favorable result even if it had been instructed on attempted forcible lewd conduct. (See People v. Banks, supra, 59 Cal.4th at p. 1161; People v. Prince (2007) 40 Cal.4th 1179, 1267-1268.)
The California Supreme Court has recognized that "insofar as the duty to instruct applies regardless of the parties' requests or objections, it prevents the 'strategy, ignorance, or mistakes' of either party from presenting the jury with an 'unwarranted all-or-nothing choice,' encourages 'a verdict ... no harsher or more lenient than the evidence merits' [citation], and thus protects the jury's 'truth-ascertainment function' [citation]. 'These policies reflect concern [not only] for the rights of persons accused of crimes [but also] for the overall administration of justice.'" (Breverman, supra, 19 Cal.4th at p. 155; accord, People v. Eid (2014) 59 Cal.4th 650, 657-658.) However, the court also "noted the danger of all-or-nothing verdict choices as a basis for the instructional rule" and stated it had "never intimated that the rule is satisfied once the jury has some lesser offense option, so that the court may limit its sua sponte instructions to those offenses or theories which seem strongest on the evidence, or on which the parties have openly relied. On the contrary, ... the rule seeks the most accurate possible judgment by 'ensur[ing] that the jury will consider the full range of possible verdicts' included in the charge, regardless of the parties' wishes or tactics." (Breverman, supra, at p. 155; accord, People v. Eid, supra, at pp. 657-658.)
Alternatively, had the jury believed M.H.'s testimony but determined the lewd touching was not forcible, it had the option of convicting defendant of either nonforcible lewd conduct or attempted nonforcible lewd conduct.
II. Sentencing Error
Next, defendant challenges the trial court's imposition of a consecutive sentence on count 1. Defendant claims that he is entitled to remand for resentencing because the trial court misunderstood the scope of its discretion and mistakenly believed it was required to impose a consecutive sentence under section 667.6, subdivision (c). The People contend defendant forfeited his claim of sentencing error because he failed to object and any error in failing to state the reason for selecting the consecutive term was harmless.
A. Background
Section 667.6, subdivision (c), provides: "In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. A term may be imposed consecutively pursuant to this subdivision if a person is convicted of at least one offense specified in subdivision (e). If the term is imposed consecutively pursuant to this subdivision, it shall be served consecutively to any other term of imprisonment, and shall commence from the time the person otherwise would have been released from imprisonment. The term shall not be included in any determination pursuant to Section 1170.1. Any other term imposed subsequent to that term shall not be merged therein but shall commence at the time the person otherwise would have been released from prison."
Relevant here, forcible lewd conduct in violation of section 288, subdivision (b), is one of the qualifying offenses enumerated under subdivision (e) of section 667.6. (§ 667.6, subd. (e)(5).)
The probation report recommended the trial court sentence defendant to the middle term on count 3 and a full, consecutive middle term on count 1. The report stated: "Section 667.6[, subdivision ](c) ... states that a full and consecutive term may be imposed for each violation of section 288[, subdivision ](b) ... if the crimes involve the same victim on the same occasion, which is the fact pattern of the instant offenses. That section also states the terms for these offenses shall commence from the time the person otherwise would have been released from imprisonment and shall not be included in any determination pursuant to Section 1170.1 .... Therefore, the term for Count 3 must be served first and, Probation believes from this reading, at least one of the two remaining counts, which are both controlled by ... 667.6[, subdivision ](c), must be served consecutively to Count 3 or, as stated above, '... shall commence from the time the person otherwise would have been released from imprisonment....'"
During the sentencing hearing, the trial court stated it had reviewed the probation report and "[t]he only factor in mitigation in this case is that you completed your theft probation successfully. You don't show any further criminal convictions. [¶] The factors in aggravation are actually rather significant. Particularly the position you were in with this young boy and his family. This boy was placed into your care, custody and protection for a long trip through the State. You violated that trust and injured this young boy." With respect to imposing the middle term, the court stated, "And I'll explain to you why the court didn't choose the aggravated term is because of your lack of previous criminal involvement, no prior offenses of this nature and for what credence we have [to] give to the tests that were given to you."
After briefing was completed in this case, CDCR notified the trial court of several errors and the court resentenced defendant on April 6, 2017. The court again imposed the middle terms on counts 1 through 3, with the sentence on count 1 to run consecutively to the sentence on count 3. Prior to the resentencing hearing, the probation department issued a memorandum, which the court and parties received. The memorandum summarized the issues defendant raised in this appeal, including his challenge to the consecutive sentence on count 1. The memorandum stated, "Probation continues to recommend the mid-term of eight years be imposed consecutively in Count 1, and the mid-term of eight years be imposed concurrently in Count 2. Probation concedes that Your Honor has the discretion under section 667.6[, subdivision ](c) ... to impose the eight year term in Count 1 concurrently with Count 3, but opines it should be imposed consecutively. The reason for this recommendation is that although the crimes occurred closely in time and place, those two counts represent separate acts and assaults against the victim's well-being and should be punished as such; for example, [defendant] didn't have to re-traumatize the victim by committing forcible lewd acts upon him after he made the victim watch adult pornography with him."
The trial court originally sentenced defendant to the middle term of three years on count 3. However, the sentencing triad of two, three or five years applies where the harmful matter—in this case, a pornographic movie—depicts minors engaging in sexual conduct. (§ 288.2, subd. (a)(1).) Where the harmful matter does not depict minors, the sentencing triad is 16 months, or two or three years. (§ 288.2, subd. (a)(2).) Defendant was resentenced to the corrected middle term of two years. Not relevant to any issues raised on appeal, CDCR incorrectly stated the sentencing triad for section 288, subdivision (b), was three, six and eight years, and it requested the trial court clarify its imposition of the middle term of eight years. During the resentencing hearing, the prosecutor explained, "The Penal Code changed in 2011 to reflect a triad of six, eight, or ten years. So the Court's imposition of a middle term of eight years is correct."
B. Awareness of Scope of Discretion
At the outset, we reject defendant's argument that the trial court misunderstood the scope of its discretion, as we do not agree the probation report misled the court to believe it was required to impose a consecutive sentence under section 667.6, subdivision (c).
Trial courts have broad sentencing discretion. (People v. Clancey (2013) 56 Cal.4th 562, 579; People v. Scott (1994) 9 Cal.4th 331, 349). However, "'[d]efendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, ... the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; accord, People v. Woodworth (2016) 245 Cal.App.4th 1473, 1480.)
"'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.'" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978; accord, People v. Lee (2017) 16 Cal.App.5th 861, 866; People v. Sperling (2017) 12 Cal.App.5th 1094, 1103 (Sperling).) "If the record is silent, ... the defendant has failed to sustain his burden of proving error, and we affirm." (People v. Lee, supra, at p. 867, citing People v. Davis (1996) 50 Cal.App.4th 168, 172; see People v. Martinez (2017) 10 Cal.App.5th 686, 728.)
In this case, the record does not support defendant's assertion that the trial court mistakenly believed a full, consecutive sentence on count 1 was mandatory. The probation report correctly recognized that the trial court may impose a consecutive sentence under section 667.6, subdivision (c). The subsequent sentences pertained to when the terms commence and mirrored the statutory language. To the extent the probation report could arguably have been clearer regarding the commencement of terms by prefacing that language with "[i]f the term is imposed consecutively pursuant to this subdivision" (§ 667.6. subd. (c)), such omission did not have the effect of transforming the report's express recognition of discretionary authority into one that expressed or implied a mandatory requirement. Moreover, the probation memorandum that preceded resentencing also expressly recognized the trial court's sentencing discretion in this regard.
Accordingly, on this record, we conclude defendant has not met his burden of demonstrating the trial court was unaware of the scope of its sentencing discretion as to the consecutive term on count 1 and we turn to the remaining issues.
C. Statement of Reason
The parties agree the trial court was required to give a statement of reason for imposing a full, consecutive sentence under section 667.6, subdivision (c), and the People concede the court did not provide one. They contend defendant forfeited any claim of error by failing to object, however.
The California Supreme Court has held that absent objection below, "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott, supra, 9 Cal.4th at p. 356; accord, Sperling, supra, 12 Cal.App.5th at pp. 1100-1102.) Defendant does not dispute this rule but argues that if it applies here, remand is still required because he received ineffective assistance of counsel. We agree with the People that the forfeiture rule applies, but for the following reasons we find the error complained of harmless in any event. (People v. Scott, supra, at p. 356; Sperling, supra, at pp. 1100-1102.)
Imposition of a full, consecutive sentence under section 667.6, subdivision (c), requires the court to "state in simple language the primary factor or factors that support the exercise of discretion...." (Cal. Rules of Court, rule 4.406(a), (b)(6); accord, People v. Osband (1996) 13 Cal.4th 622, 729; Sperling, supra, 12 Cal.App.5th at p. 1103.) Any error in failing to give a statement of reason is harmless, however, if "[a] result more favorable to [the] defendant is not reasonably probable." (People v. Smith (1984) 155 Cal.App.3d 539, 546; accord, People v. Osband, supra, at pp. 729-730; Sperling, supra, at p. 1104.)
Here, the trial court imposed the middle term because defendant did not have a prior criminal record involving similar offenses and his risk assessment test score reflected a moderate to low risk of reoffending over a period of five years. The probation report and subsequent memorandum correctly recognized that section 667.6, subdivision (c), permits the court to impose a full, consecutive sentence where "the crimes involve the same victim on the same occasion." Even one aggravating factor supports the imposition of a consecutive sentence (People v. King (2010) 183 Cal.App.4th 1281, 1323-1324; People v. Quintanilla (2009) 170 Cal.App.4th 406, 413) and, here, circumstances in aggravation included vulnerability of the victim and abuse of a position of trust or confidence (Cal. Rules of Court, rule 4.421(a)(3), (11)).
Defendant's prior criminal record consisted of a misdemeanor theft offense from 1992.
Defendant was a trusted member of M.H.'s family and, prior to the road trip during which defendant committed the offenses, neither M.H. nor his mother had any cause for concern regarding defendant. Moreover, M.H. was particularly vulnerable given that by virtue of the long road trip, he was in unfamiliar territory and isolated from the support of other family or friends. The trial court described the factors in aggravation as "rather significant" and, to the extent defendant implies in argument that this was a close call, we do not agree. We conclude that on this record, there is no reasonable probability the trial court would have imposed a concurrent term on count 1 and, therefore, the error in failing to give a statement of reason for selecting a consecutive term on count 1 is harmless. (People v. Smith, supra, 155 Cal.App.3d at p. 546; see Sperling, supra, 12 Cal.App.5th at pp. 1104-1105.) As such, we need not reach defendant's ineffective assistance of counsel claim.
Because age is an element of the offense under section 288, it would have been improper for the trial court to rely on M.H.'s age as an aggravating factor in imposing a consecutive sentence. (Cal. Rules of Court, rule 4.425(b)(3); People v. Quintanilla, supra, 170 Cal.App.4th at p. 413.) There is no indication in the record the trial court relied on M.H.'s age, however, and defendant does not claim otherwise. (People v. Quintanilla, supra, at p. 413.)
III. Credit Calculation Error
Finally, a criminal defendant is entitled to credit for time served in custody and, in this case, the parties agree the trial court erred in awarding defendant 611 days of custody credit rather than 612 days. (§§ 2900, subd. (c), 2900.1, 2900.5, subds. (a)-(b); Cal. Rules of Court, rule 4.472; People v. Buckhalter (2001) 26 Cal.4th 20, 29-30; People v. Saibu (2011) 191 Cal.App.4th 1005, 1011-1012.) This calculation error appears to have originated in the probation memorandum, which incorrectly reflected that resentencing occurred on April 5, 2017, rather than on April 6, 2017.
Effective January 1, 2017, section 2900.5, subdivision (a), was amended in part concerning the application of custody credits toward the satisfaction of base fines. (Legis. Counsel's Dig., Assem. Bill No. 2839, approved by Governor, Sept. 28, 2016 (2015-2016 Reg. Sess.) § 2.) The amendment is not relevant to the issue raised by defendant in this appeal.
An appellate court may resolve custody credit calculation issues if doing so will serve the interests of judicial economy (People v. Jones (2000) 82 Cal.App.4th 485, 493), but it is the appellant's burden to affirmatively demonstrate his entitlement to credit for any particular time period (People v. Jacobs (2013) 220 Cal.App.4th 67, 81). We find the parties' position supported by the record and the judgment is modified to reflect an award of 612 custody credits. (People v. Mitchell (2001) 26 Cal.4th 181, 187-188.)
When the trial court resentenced defendant on April 6, 2017, it did not issue an amended abstract of judgment and instead issued a minute order amending the prior order and abstract of judgment. The parties request the issuance of an amended abstract of judgment in light of the correction to defendant's custody credits. (§ 1213; People v. Delgado (2008) 43 Cal.4th 1059, 1070; People v. Hong (1998) 64 Cal.App.4th 1071, 1076.) We may order the appropriate relief and the trial court is hereby directed to issue an amended abstract of judgment in this case. (People v. Mitchell, supra, 26 Cal.4th at pp. 185-188.)
DISPOSITION
The judgment is modified to reflect an award of 612 days of custody credit and, in all other respects, the judgment is affirmed. The trial court shall issue an amended abstract of judgment and forward it to the California Department of Corrections and Rehabilitation.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
FRANSON, J.