Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Ct. No. RIF132350, Joe O. Littlejohn, Judge. (Retired judge of the San Diego Super. Ct., assigned by the Chief Justice pursuant to art. VI, . § 6 of the Cal. Const.)
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.
RICHLI J.
Defendant Genovevo Moreno Reyes came home late one night and went into a bedroom occupied by the 12-year-old daughter (Doe) of his girlfriend. Defendant pulled down Doe’s pajama pants and underwear and his pants. He put his hand on her throat, bit her on the cheek, and put his finger on her vagina. Doe’s mother came into the room, and defendant ran off.
Defendant was found guilty of sexual assault by the use of force, fear, or duress (Pen. Code, § 288, subd. (b)(1)) and attempted sexual penetration by the use of force, violence, duress, menace, or threat (§§ 664, 269, subd. (a)). He was sentenced to the upper term of nine years on the attempted sexual penetration charge. The sentence on the sexual assault was stayed pursuant to section 654 on the basis that it was a continuous course of conduct.
All further statutory references are to the Penal Code unless otherwise indicated.
A charge of sexual penetration by force (§ 269) was dismissed on a section 1118.1 motion.
Defendant makes three claims on appeal:
1. There was insufficient evidence to support defendant’s conviction for the commission of a lewd and lascivious act in violation of section 288, subdivision (b)(1) because there was no evidence that he applied any force, violence, or duress on Doe beyond that necessary to commit the offense.
2. The trial court improperly ordered the jury to resume deliberations after the clerk of the court had already taken the verdicts on the sexual assault count, and the second verdict should be reversed.
3. The prosecutor committed prejudicial misconduct when he called defendant a “masochist” during closing argument.
We affirm the judgment.
I
FACTUAL BACKGROUND
Doe was born in late 1993 and was 16 years old at the time of trial. On May 26, 2006, when Doe was 12 years old, she lived with her mother, N.G.; her brother; her sister; and 30-year-old defendant, who was her mother’s boyfriend, in Moreno Valley. Defendant had been living with them since 2004. Defendant and N. shared a bedroom. Doe, her brother, and her sister slept in another bedroom.
On the night of the incident, defendant returned home around 11:00 p.m. He appeared to N. to have been drinking, but he was not too drunk. N. was on the couch watching television. Defendant crossed the living room and disappeared from her sight. Defendant apparently did not realize that N. was on the couch.
Doe woke up to find defendant sitting on the bed next to her or kneeling next to the bed. He smelled like alcohol. He had his hand to her throat and told her that if she did not let him do what he wanted to do, he would hit her and N. Defendant then pulled down her pajama pants and underwear. Doe tried to pull them back up, but defendant kept his hand on her throat. Defendant also pulled down his pants.
Defendant then took his finger and placed it on her vagina. It felt like he tried to penetrate her vagina with his finger, but it did not go inside. He did not touch her anywhere else on her body.
Doe tried to move to get away. Defendant then bit her on the cheek. The bite left a mark, and Doe cried. N. heard Doe crying and heard loud noises coming from the bedroom, including squeaking of the bed. When N. entered the room, she saw defendant “on top” of Doe. Defendant’s pants were down around his knees.
N. pushed defendant off the bed, and he ran away. N. immediately called the police and held Doe, who was crying.
Doe was transported to the hospital, and a sexual assault examination was performed. There were no recent injuries to Doe’s vaginal area. Doe had a V-shaped “cleft” on her hymen, but it was inconclusive whether it was a birth defect or from a prior sexual assault. She also had a red mark on her left cheek.
It is common not to have any visible injuries on the genitalia after a sexual assault.
N. spoke with defendant on the telephone the day following the incident. Defendant claimed that someone put a drug in his drink, and he did not know what he was doing. He never came back to retrieve his belongings.
Doe was interviewed twice prior to trial (on June 8 and June 14, 2006) by the Riverside County Child Protective Services. Both interviews were videotaped and played for the jury. She recounted to the interviewers—as at trial—that defendant took off her pajama pants and underwear and his pants, grabbed her throat, bit her cheek, and touched her “privates” with his finger on the outside. She also stated that he threatened to hit her and N.
Prior to May 2006, when Doe was also 12 years old, she had been asleep in her bedroom when she woke up to defendant trying to pull her pajama pants down. Defendant also pulled his pants down, but she did not see his penis. Defendant never touched her because she started crying. On another occasion, he had touched her breast. At trial, she did not recall his trying to kiss her vagina even though she had told the examining sexual assault doctor that this occurred. Doe did not tell anyone about these prior incidents because defendant threatened to harm N.
Defendant was arrested on April 25, 2009, while trying to reenter the United States from Mexico. A blanket, pillow, pillow case, and bedding from Doe’s bed were tested and found to be negative for seminal fluid. Defendant presented no evidence.
II
SUFFICIENCY OF EVIDENCE
Defendant contends the evidence that he committed the lewd act against Doe with the requisite force, fear, or duress to support his conviction of violating section 288, subdivision (b)(1) was insufficient.
A. Standard of Review
“In reviewing a claim [regarding the] sufficiency of the evidence, we must 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 or special circumstance beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]” (People v. Jennings (2010) 50 Cal.4th 616, 638-639.)
B. Analysis
“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. Section 288[, subdivision] (b)(1) 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 (2011) 51 Cal.4th 229, 237.) The California Supreme Court recently approved of the definition of the force required to constitute a conviction under section 288, subdivision (b)(1) as force “‘substantially different from or substantially greater than that necessary to accomplish the lewd act itself.’ [Citation.]” (Soto, at p. 242.)
The People argued to the jury that the sexual assault by use of force or fear count was the acts that defendant was pulling down his and Doe’s pants while (1) holding her throat and (2) biting her cheek. We need not discuss whether there was adequate force, as both acts were clearly supported by the evidence of duress.
The People argued the theories of both force and duress.
“‘Duress’ as used in this context means ‘a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.’ [Citations.] ‘The total circumstances, including the age of the victim, and [his or her] relationship to defendant are factors to be considered in appraising the existence of duress.’ [Citation.] Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family. [Citations.]” (People v. Cochran (2002) 103 Cal.App.4th 8, 13-14.)
“‘[D]uress [also] involves psychological coercion. Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes.... “Where the defendant is a family member and the victim is young, ... the position of dominance and authority of the defendant and his continuous exploitation of the victim” [are] relevant to the existence of duress.’” (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319-1320.)
Defendant had established a pattern of sexually assaulting 12-year-old Doe while he lived with her and was acting as a father figure. Doe was afraid to tell N. because he threatened to do something to N. On the night in question, defendant entered Doe’s room in the middle of the night and immediately put his hand to her throat. He threatened Doe that if she did not comply, he would hit her and N. Defendant then forced Doe’s pajama pants and underwear down while Doe tried to pull them back up. Doe was crying out and trying to stop defendant. Defendant also bit her on the cheek when Doe tried to resist.
Defendant used both threats and psychological coercion to complete the sexual assault. Doe was terrified of defendant because he had previously assaulted her, had a position of trust, and threatened to hurt both her and her mother if she told on him. We conclude there was substantial evidence defendant committed forcible lewd acts upon a child, including sufficient evidence of the requisite “duress” within the meaning of section 288, subdivision (b)(1).
III
JUROR ERROR
Defendant claims the trial court erred by reconvening the jurors to deliberate again on the sexual assault after he claims they had been discharged. He insists the trial court coerced the resulting verdict.
A. Additional Factual Background
At the close of evidence, the jury was given a unanimity instruction as follows: “The defendant is charged with lewd or lascivious act of a minor under 14 by use of force, fear, or menace in Count 2. The People have presented evidence on more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts, and you must all agree on which act—which act he committed.”
During closing, the People argued that the acts constituting the lewd and lascivious acts were grabbing Doe’s throat and biting her cheek. The People stated: “Whatever act of touching you agree on, it just has to be the same act, okay. So half of you can’t... find that he grabbed the throat and half of you find that he bit her cheek. Has to be unanimous.” The People then referred to the touching of her vagina, which could also constitute the sexual act, but asked that for the section 228, subdivision (b)(1) violation they decide between (or find both) the bite on her cheek and the grabbing of her throat.
The jury returned a verdict of guilty of sexual assault by use of force, fear, or duress and of the attempted sexual penetration. The jury was polled and all agreed that these were their verdicts. There was an unreported sidebar conference. After the verdicts were recorded, the trial court advised the jurors: “Ladies and gentlemen of the jury, before I discharge you, I’m going to let you step out of the room for a minute. Wait outside. I’ll call you back in within the next five minutes.”
When the jury left the room, the trial court stated on the record that it did not have any further instructions but that if the parties wanted to write a question for it to ask the jurors, then they should do so. The People requested a piece of paper, and defense counsel objected to the “process.” The trial court then stated on the record: “Then prior to the jury going out on recess—I mean, prior to the jury going out for a few minute[s’] break, I had informed the attorneys that I would allow them to ask a question on the record which would be equivalent to attorneys asking the jury questions after they have been discharged and out in the hallway, because it’s the Court’s experience that lawyers often come back and talk to the Court about how a juror’s decided certain things that they found out as a result of talking to a jury that had been discharged. [¶] I indicated that I do not feel that I’m going to be bound—I will not be bound by any response that they give. The jury has completed their task, and this is just something that will be on the record and the Court is not bound by anything that they say as it relates to any sentencing. So I wanted to make that clear.”
Although defense counsel objected, he worked with the prosecutor to ask the jurors the following question: “What act or acts under Count 2, lewd or lascivious act of a minor under 14 by force, fear, or menace, did you unanimously agree to that was done for the sexual gratification of the defendant or (Jane Doe)?” One of the jurors responded: “After we came in here, we took back the information. We read through the information and we went through each... step as far as the instructions. And we came to a conclusion that, yes, we do agree that he... choked her. We do agree that he touched her in the private area. We... did agree that the pants were down on both of them, and her... underwear. And we do agree that she was bitten on the cheek.”
There was an unreported sidebar conference. The jury was then advised by the trial court that they were to return to the jury room for deliberations and that they were to look at the unanimity instruction. They were to consider the instruction along with the question posed to them in open court.
Defense counsel asked that the trial court set aside the already-entered verdict on sexual assault by force, fear, or duress. The trial court agreed, set aside the verdict, and sent another verdict form to the jury. The jury then entered a new verdict of guilty of sexual assault by means of force, fear, or duress.
B. Analysis
Section 1164, subdivision (a) provides: “When the verdict given is receivable by the court, the clerk shall record it in full upon the minutes, and if requested by any party shall read it to the jury, and inquire of them whether it is their verdict. If any juror disagrees, the fact shall be entered upon the minutes and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury shall, subject to subdivision (b), be discharged from the case.”
“‘Once a “complete” verdict has been rendered per... section 1164 [i.e., a verdict that has been received and read by the clerk, acknowledged by the jury, and recorded] and the jurors discharged, the trial court has no jurisdiction to reconvene the jury regardless of whether or not the jury is still under the court’s control [citation].’” (People v. Hendricks (1987) 43 Cal.3d 584, 597, italics added.) In People v. Scott (2001) 91 Cal.App.4th 1197, the court concluded that Hendricks consists of two parts in order for the trial court to reconvene the jurors. First, the verdict must be complete. Second, the jury must be discharged. (Scott, at p. 1208.) Hence, the trial court can reconvene the jury to reconsider its verdict “until the jury has left the court’s control, i.e., until the jury has been discharged.” (People v. Cain (1995) 10 Cal.4th 1, 54.)
Here, the jury had not been discharged. The jurors were advised by the trial court, after entering guilty verdicts, that before it discharged them, they were to wait outside until they were called back within five minutes. When they returned to the courtroom, the jurors advised the trial court that they had found that defendant committed all of the acts—he bit Doe’s cheek, held her throat, pulled down her pajama pants and underwear, and touched her vagina—but apparently had not agreed on just one act for the violation of section 288, subdivision (b)(1). The jurors were sent back to the jury room and told to review the unanimity instruction.
The trial court had not discharged the jury and could instruct the jury to render a complete verdict in accordance with the given instructions in the case. The jury was not exposed to outside influences and were not told that they could freely discuss the case prior to rendering their second verdict. (See People v. Bonillas (1989) 48 Cal.3d 757, 771.) The trial court had not lost jurisdiction to have the jury reconvene under section 1164.
We also reject the contention that the trial court’s actions constituted coercion of the jury’s verdict to conclude what sexual act committed by defendant constituted a violation of section 288, subdivision (b)(1).
Defendant likens the court’s actions to an Allen-type instruction, which is impermissible because of its potentially coercive impact on jurors. (Allen v. U.S. (1896) 164 U.S. 492, 501 [41 L.Ed. 528, 17 S.Ct. 154]; People v. Gainer (1977) 19 Cal.3d 835, 854-855.) In its review of an instruction to a deadlocked jury in Gainer, the California Supreme Court identified two elements of an impermissible Allen-type instruction: (1) the inclusion of a “discriminatory admonition directed to minority jurors to rethink their position in light of the majority’s views, ” (Gainer, at p. 845), which constitutes reversible error per se, because such an instruction “urging minority jurors to reconsider their votes... places excessive and illegitimate pressures on the deliberating jury” (id. at p. 851); and (2) direction by the trial court that the jury “‘should consider that the case must at some time be decided, ’” which may place excessive pressure upon a jury to reach a verdict rather than no verdict at all (ibid.).
Here, the trial court did not ask minority jurors to reconsider their opinions in accordance with the majority jurors, as there were no minority jurors; they all entered guilty verdicts. Further, there was no indication to the jurors that they must reach a verdict. The jurors were instructed, after telling the trial court that they had found defendant had committed all of the acts, that it must agree on what one act constituted the violation of section 288, subdivision (b)(1). The trial court did not coerce the verdict as the jurors had already determined that defendant was guilty of all the acts.
The verdict by the jury finding defendant guilty of violating section 288, subdivision (b)(1) was properly entered.
IV
PROSECUTORIAL MISCONDUCT
Defendant contends the prosecutor committed misconduct when he called him a “masochist” during the closing argument.
A. Additional Factual Background
During defense counsel’s closing argument, he argued that in order for the jury to convict defendant of the sexual assault through the use of force, fear, or duress, the People had to show that the act of choking or biting Doe was to sexually gratify himself or the victim. Defense counsel argued that defendant grabbed her throat and bit her because she was moving and to keep her quiet; he had no sexual intent. Defense counsel conceded that defendant touched her vaginal area. Defense counsel conceded guilt on the violation of section 288, subdivision (b)(1) based on placing his finger on her vagina but argued that they should find assault as to the attempted sexual penetration count.
During rebuttal argument, the prosecutor stated: “And I’m almost done here. I’m not going to take much more time. But I do want to... talk about [defense counsel]’s assertion that... a biting was done... just to quiet her. No. Absolutely not. [Defendant] is a masochist. He went in there, put his hand around a 12-year-old girl’s throat, and he told her, Let me touch you or else I’m going to hit you and your mom.” (Italics added.) The People continued: “He wanted to bite her that night for a sexual purpose.”
At the end of the argument, there was an unreported sidebar conference. The trial court then advised the jurors: “Okay, then, ladies and gentlemen of the jury, before I read the last two instructions, I do want to caution you to recognize that statements of attorneys are not evidence. I’ve said this throughout the trial, and I will repeat it at this point.”
After the jury commenced deliberations, defense counsel put on the record that during the sidebar he had brought a motion for mistrial based on prosecutorial misconduct. He stated: “[The prosecutor] called [defendant] a masochist. And I think name-calling during argument is improper argument.” The prosecutor stated that he had actually meant to use the term “sadist” because of his argument that biting Doe’s cheek was for sexual purposes. It was not for “name-calling” purposes, but rather to explain that defendant’s acts were for sexual purposes. The trial court understood what the prosecutor intended to say, but noted that for the jury it was the word masochist. However, such argument did not warrant a mistrial.
B. Analysis
A prosecutor’s conduct violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade the jury. (People v. Benavides (2005) 35 Cal.4th 69, 108.) “To constitute a violation of the federal Constitution, prosecutorial misconduct must ‘“so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.”’ [Citations.]” (Ibid.) To establish prosecutorial misconduct, a defendant need not show that the prosecutor acted in bad faith, but he must show that his right to a fair trial was prejudiced. (People v. Nguyen (1995) 40 Cal.App.4th 28, 35.)
“To preserve a misconduct claim for review on appeal, a defendant must make a timely objection and, unless an admonition would not have cured the harm, ask the trial court to admonish the jury to disregard the prosecutor’s improper remarks or conduct. [Citation.]” (People v. Martinez (2010) 47 Cal.4th 911, 956.)
Arguably, because defense counsel did not request an admonition to the jury, defendant has not preserved the issue for review on appeal. (People v. Frye (1998) 18 Cal.4th 894, 969-970 [“to preserve a claim of prosecutorial misconduct, the defense must make a timely objection and request an admonition to cure any harm”].) The record does not include what occurred at the sidebar conference immediately after the argument. Defendant may have asked for a more specific admonishment to the jury and the trial court rejected the request. As such, we will review defendant’s claim.
The prosecutor’s comments did not constitute deceptive or reprehensible methods to attempt to persuade the jury or infect the trial with such unfairness as to make the conviction a denial of due process. (People v. Benavides, supra, 35 Cal.4th at p. 108.) The prosecutor clearly intended to call defendant a “sadist.” “Sadism” is defined as “the infliction of pain upon a love object as a means of obtaining sexual release.” (Webster’s 3d New Internat. Dict. (2002) pp. 1997, col. 3, 1998 col. 1.) “Masochism” is defined as “a tendency to gain or to increase sexual gratification through the acceptance of physical abuse or humiliation.” (Id. at p. 1388, col. 1.) The prosecutor intended to argue that biting Doe’s check while pulling her pajama pants and underwear down was done in order to satisfy his deviant sexual interests, that of a sadist. Instead, his argument was nonsensical based on the evidence before the jury. Clearly the misuse of the term “masochist” was not prejudicial as it did not describe defendant’s sexual interests.
Even if we were to consider the prosecutor’s comments to be misconduct, we would not find it reversible. “Under the federal Constitution, a prosecutor commits reversible misconduct only if the conduct infects the trial with such ‘“unfairness as to make the resulting conviction a denial of due process.”’ [Citation.] By contrast, our state law requires reversal when a prosecutor uses ‘deceptive or reprehensible methods to persuade either the court or the jury’ [citation] and ‘“it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct”’ [citation].” (People v. Davis (2009) 46 Cal.4th 539, 612.)
We cannot conclude the prosecutor’s comment so infected the trial as to require reversal. The prosecutor’s comment was brief and was not repeated. Moreover, the jury was instructed that it could not consider the statements by the attorneys as evidence in the case prior to commencing deliberations.
Additionally, the case against defendant was overwhelming. Defense counsel all but conceded that a sexual assault occurred. The evidence of the sexual assault by use of force, fear, or duress was ample. Moreover, there was strong evidence of attempted penetration, as Doe testified that it felt like defendant was trying to place his finger inside her vagina. Moreover, defendant fled the country for several years, and the jury was instructed it could consider his flight as consciousness of his guilt. Based on the foregoing, the prosecutor’s fleeting remark that defendant was a masochist made in response to defendant’s argument that biting Doe did not constitute sexual assault did not constitute improper argument, and even if it did, it did not so infect the trial as to result in a miscarriage of justice.
V
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST Acting P.J., CODRINGTON J.