Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Charles B. Pfister, Judge., Super. Ct. No. DF007544A
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Jilberto Rios was convicted of various crimes arising from his long-term sexual abuse of his stepdaughter. On appeal, he contends (1) the trial court erred by failing to instruct the jury on unanimity; (2) the trial court erred by instructing the jury on defendant’s failure to deny or explain evidence against him; (3) the trial court abused its discretion by imposing the upper term; and (4) his sentence violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We affirm.
FACTS AND PROCEDURAL SUMMARY
Defendant sexually abused his stepdaughter, S., two or three times per week for about five years, beginning when she was about 9 or 10 years old. He would touch her chest and have vaginal, anal and oral sex with her. On Sunday, September 25, 2005, S.’s younger sister, M., secretly witnessed defendant having sex with S. while she was bent over a couch. M. also witnessed their sexual activity on other occasions, including during the night when she pretended to be asleep. Once, when she found them having sex in the kitchen, they told her they were looking for a rat. On Tuesday, September 27, 2005, the last time defendant abused S. before his arrest, S. was asleep on the couch in the living room when he pulled her to the floor and had both vaginal and anal sex with her. Defendant was arrested on Thursday, September 29, 2005, after M. reported what she had seen to her teacher.
Defendant took the stand and denied ever having sex with S. and stated she had never accused him of having sex with her until that September. He testified that S. was out of town on Sunday, September 25, 2005, and did not return home until late in the evening. Defendant had threatened to send S. and M. away to school, but only to scare them into doing their chores.
Defendant’s wife testified S. and M. were at home that Sunday.
A jury convicted defendant of continuous sexual abuse of a child under 14 years of age (Pen. Code, § 288.5, subd. (a); count 1) between about February 2000 and February 2005; and two counts of committing a lewd act on a 14-year-old child on about September 27, 2005 (§ 288, subd. (c)(1); counts 2 and 3). The court sentenced defendant to the upper term on count 1, plus consecutive terms on counts 2 and 3, for a total prison term of 17 years 4 months.
All statutory references are to the Penal Code unless otherwise noted.
DISCUSSION
I. Unanimity Instruction
Defendant contends the trial court erred by failing to instruct the jurors sua sponte that they were required to unanimously agree on which acts constituted the crimes in counts 2 and 3. He argues that the information alleged two acts occurring on the same day, but the evidence established that various acts occurred on various days.
“‘It is fundamental that a criminal conviction requires a unanimous jury verdict (Cal. Const., art. I, § 16; People v. Wheeler (1978) 22 Cal.3d 258, 265 []).’ [Citation.] What is required is that the jurors unanimously agree [the] defendant is criminally responsible for ‘one discrete criminal event.’ [Citation.] ‘[W]hen the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed in the words of CALJIC No. 17.01 or 4.71.5 or their equivalent that it must unanimously agree beyond a reasonable doubt that [the] defendant committed the same specific criminal act.’ [Citation.]” (People v. Thompson (1995) 36 Cal.App.4th 843, 850.)
Here, the information charged two separate criminal acts occurring on about September 27, 2005 for counts 2 and 3. S. testified September 27, 2005 was the date of the last incident of abuse. She said defendant engaged in both vaginal sex and anal sex with her on that date. The prosecutor confirmed in argument that count 2, and therefore count 3, referred to acts that occurred on that date.
During argument, the prosecutor referred to the last incident of abuse:
Because the information, the evidence and the prosecutor’s argument all established there were two lewd acts that constituted counts 2 and 3, the unanimity instruction was unnecessary.
II. Instruction on Defendant’s Failure to Deny or Explain Evidence Against Him
The trial court instructed the jurors with CALJIC No. 2.62, as follows:
“In this case the defendant has testified to certain matters. If you find that the defendant failed to explain or deny any evidence against him, introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence, and [as] indicating that among the inferences that may reasonably be drawn therefrom, those unfavorable to the defendant are the more probable.
“The failure of the defendant to deny or explain evidence against him does not, by itself, warrant an inference of guilt, nor does it remove the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt.
“If a defendant does not have the knowledge that he would need to deny or to explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain this evidence.”
Defendant contends this instruction was improper because he did deny having sex with S. The People counter that defendant failed to explain “whether he ever went to S.’s bedroom late at night or whether he was ever alone with her in his or her bedroom during the day. He also failed to explain what actually happened on the occasion that he and [S.] were in the kitchen, [M.] walked in, and they said they had found a rat.”
Although CALJIC No. 2.62 has been criticized, the instruction suffers no constitutional or other infirmity and may be given in an appropriate case. (People v. Saddler (1979) 24 Cal.3d 671, 681; People v. Lamer (2003) 110 Cal.App.4th 1463, 1470.) CALJIC No. 2.62 is proper when a defendant fails to explain or deny evidence presented in the prosecution’s case (People v. Saddler, supra, at p. 682) or when he “‘tenders an explanation which, while superficially accounting for his activities, nevertheless seems bizarre or implausible’” so that it could be deemed a failure to explain or deny (People v. Belmontes (1988) 45 Cal.3d 744, 784). For CALJIC No. 2.62 to be proper, there must be evidence that would support a finding by the jury that the defendant failed to explain or deny prosecution facts or evidence within his or her knowledge. (People v. Lamer, supra, at p. 1469; People v. Saddler, supra, at p. 682.) For instance, if a defendant elects to testify at trial and there are “logical gaps” in his testimony, the jury may be instructed with CALJIC No. 2.62. (People v. Redmond (1981) 29 Cal.3d 904, 911.)
“CALJIC No. 2.62 should not be given unless the trial court first determines that the defendant has failed to explain or deny any incriminating testimony.” (People v. Campbell (1978) 87 Cal.App.3d 678, 685.) Contradictions between a defendant’s testimony and that of prosecution witnesses cannot be the basis for giving the instruction. (People v. Saddler, supra, 24 Cal.3d at p. 682.) Similarly, the test is not whether the defendant’s testimony is believable. (People v. Kondor (1988) 200 Cal.App.3d 52, 57.) Furthermore, the instruction is improper “[i]f a defendant has not been asked an appropriate question calling for either an explanation or denial.” (People v. Roehler (1985) 167 Cal.App.3d 353, 392.) As a reviewing court, we must ascertain whether the record evidence supports a conclusion that the defendant failed to explain or deny any evidence within the scope of relevant cross-examination. (People v. Saddler, supra, at p. 682.)
Following a defendant’s general denial that he committed the crime, the relevant scope of cross-examination is very wide. (People v. Saddler, supra, 24 Cal.3d at p. 679; People v. Zerillo (1950) 36 Cal.2d 222, 228.) As a result of that denial, the prosecutor is permitted to cross-examine him “with respect to any matter tending to prove his guilt.” (People v. James (1976) 56 Cal.App.3d 876, 888.) A denial of guilt is considered a denial of “the existence of any evidence relevant on the issue of guilt, which makes cross-examination about the subject of any such evidence properly within the scope of the direct examination. [Citations.]” (Ibid.; see also People v. Zerillo, supra, at pp. 228-229.)
In this case, defendant denied committing the crimes. Incriminating evidence not explained by defendant included what he was doing to S., other than having sex, on the several occasions that M. witnessed him engaging in what she clearly described as sexual activity with S. This matter was within the wide scope of cross-examination following defendant’s denial. Defendant’s failure to explain M.’s eyewitness account justified the court’s giving of CALJIC No. 2.62.
But even if the instruction was given in error, we conclude it was harmless. Defendant argues that any error was of constitutional magnitude and must be analyzed under the harmless-beyond-a-reasonable-doubt Chapman standard. He asserts that the case was a close one, considering the jury deliberated for two days (a little over nine hours, according to our count) and requested a readback of the forensic doctor’s testimony. Defendant argues that “the issues before the jury hinged largely on the weight to be accorded to the testimony of [defendant] versus that of [S.] and [M.]” and therefore “the instruction prejudicially undermined [defendant’s] credibility.” We conclude any error was harmless under any standard for the following reasons.
Chapman v. California (1967) 386 U.S. 18, 24.
First, the trial court removed any potential prejudice by also instructing the jury with CALJIC No. 17.31 to “[d]isregard any instruction which applies to facts determined by you not to exist” and not to conclude that because an instruction was given, the court was expressing an opinion as to the facts. The giving of this instruction is normally sufficient to make any error in giving CALJIC No. 2.62 harmless. (See People v. Saddler, supra, 24 Cal.3d at pp. 683-684; People v. Kondor, supra, 200 Cal.App.3d at p. 58.)
Second, we disagree with defendant’s assessment of this case as a close one. The jury heard testimony from about 10 witnesses over the course of four days. The jury’s nine-hour deliberation was not so long as to permit any assumption other than that the jury was carefully evaluating the evidence. There was no indication from the jurors at any time that they were having difficulty reaching a verdict. As stated in People v. Houston (2005) 130 Cal.App.4th 279, “the length of a jury’s deliberation is related to the amount of information presented at trial ….” (Id. at p. 301.) Similarly, the fact that the jury requested readback of certain testimony of one witness was also not indicative of a close case. As in Houston, the jury’s request for readback “speaks only for its diligence,” and the jury’s time spent reviewing testimony was time in which they were not deliberating. (Ibid.) “[T]o conclude that this was a ‘close case’ in light of the jury’s actions ‘in the absence of more concrete evidence would amount to sheer speculation on our part. Instead, we find that the length of the deliberations could as easily be reconciled with the jury’s conscientious performance of its civic duty, rather than its difficulty in reaching a decision.’” (Ibid.; see also People v. Walker (1995) 31 Cal.App.4th 432, 438 [jury’s 6.5-hour deliberation after a 2.5-hour presentation of evidence was not an indication of a close case; jury also listened to testimony readbacks and presumably spent time reading instructions].)
Finally, the evidence against defendant was overwhelming. S. reported and testified to the ongoing abuse in general terms of the acts, locations and frequency. She recounted the abuse with a detachment not unusual in long-term abuse victims, according to the deputy. M. reported and testified in greater detail the sexual acts she witnessed between S. and defendant. Defendant’s testimony that S. was not at home on September 25, 2005, was contradicted by his wife’s testimony that both S. and M. were at home that day.
For all these reasons, any error was harmless under any standard. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
III. Sentencing
A. Upper Term
Defendant contends his upper term sentence violated Blakely, supra, 542 U.S. 296 and its progeny. We address his argument in light of the recent United States Supreme Court decision in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham).
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), a five-justice majority of the United States Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.)
Blakely held that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.]” (Blakely, supra, 542 U.S. at p. 303, italics omitted.) Blakely describes three types of facts that a sentencing judge can properly use to impose an aggravated sentence: (a) “‘the fact of a prior conviction’” (id. at p. 301); (b) “facts reflected in the jury verdict” (id. at p. 303, italics omitted); and (c) facts “admitted by the defendant” (ibid., italics omitted).
Cunningham held that aggravating factors, other than a prior conviction, used to impose an upper term for a criminal offense must be submitted to a jury and proved beyond a reasonable doubt, according to the requirements of Apprendi and Blakely. (Cunningham, supra, 549 U.S. at p. __.) As a result, California’s Determinate Sentencing Law violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial to the extent that it permits a trial court to impose an upper term based on facts found by the court rather than by a jury beyond a reasonable doubt. (Id. at p. __.)
In the recent case of People v. Black (2007) 41 Cal.4th 799 (Black II ), the California Supreme Court concluded “that imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, at p. 816.)
In this case, the trial court stated that it considered the following factors in aggravation: (1) defendant took advantage of a position of trust or confidence to commit the offense and (2) defendant’s prior performance on misdemeanor probation was unsatisfactory because he failed to abide by the terms. These factors do not fall within the exceptions to Blakely. Thus, we consider whether the trial court’s error was harmless under the standard set forth in Chapman v. California, supra, 386 U.S. at p. 24. (People v. Sandoval (2007) 41 Cal.4th 825, 838; see Washington v. Recuenco (2006) 548 U.S. __ [126 S.Ct. 2546].) In making this determination, “we must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (People v. Sandoval, supra, at p. 838.) “[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Id. at p. 839.)
The court did not mention defendant’s prior convictions, but the probation report shows he was convicted of tampering with a vehicle (Veh. Code, § 10852) in 1976 and was sentenced to one year of misdemeanor probation. Then, in 1995, he was convicted of inflicting corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)) and was sentenced to three years of misdemeanor probation. He violated probation, although it was reinstated a few years later.
Here, the evidence was overwhelming that defendant took advantage of a position of trust or confidence to commit the offenses against S. Defendant not only lived with S., he was her stepfather. He had sex with her two or three times per week, beginning when she was at the vulnerable age of only 9 or 10 years old. We have no doubt that if the jury had been asked to determine whether the facts supported the aggravating factor of taking advantage of a position of trust or confidence to commit the offenses, the jury would have found the factor true beyond a reasonable doubt. Thus, the use of this aggravating factor without a jury finding was harmless. (People v. Sandoval, supra, 41 Cal.4th at pp. 838-839.)
Defendant also contends that the trial court abused its discretion when it considered the aggravating factor of defendant’s taking advantage of a position of trust or confidence because, although it is not an explicit element of the crime of continuous sexual abuse, it is an anticipated factor in any normal case involving that offense. This contention has been rejected in People v. Clark (1992) 12 Cal.App.4th 663 (Clark).
A circumstance that is an element of the substantive offense cannot be used as a factor in aggravation. (People v. Wilks (1978) 21 Cal.3d 460, 470; Clark, supra, 12 Cal.App.4th at p. 666.) But a sentencing factor is only an element of the offense if the crime as defined by statute cannot be accomplished without performance of the acts that constitute such factor. (Clark, supra, at p. 666.) Section 288.5 requires only that the perpetrator “either reside[] in the same home with ... or ha[ve] recurring access to the child.” Clark held that because “continuous sexual abuse can be committed by anyone residing in the same home with the children, whether or not they have special status with the victim,” abuse of trust can be used as an aggravating factor even against a member of a child’s household. (Clark, supra, at p. 666.) The same clearly holds true for non-household members. A neighbor or a housecleaner, gardener, or dog walker employed by a child’s parents, for example, might enjoy recurring access to a child without occupying a position of trust with respect to him or her. Because the factor is not an element of the crime, the trial court did not err by considering it. (Ibid.; see also People v. Fernandez (1990) 226 Cal.App.3d 669, 680.)
Defendant also argues there was insufficient evidence to support the aggravating factor that his performance on probation was unsatisfactory because the probation report shows his probation was reinstated a few years after his violation of probation. In light of the existence of at least one other valid aggravating factor (People v. Osband (1996) 13 Cal.4th 622, 728-729 [only a single aggravating factor is required to impose the upper term]), we need not address this contention.
B. Consecutive Sentences
As for defendant’s consecutive sentences, the California Supreme Court has held that “a jury trial is not required on the aggravating factors that justify imposition of consecutive sentences.” (People v. Black (2005) 35 Cal.4th 1238, 1262 (Black I), overruled on other grounds in Cunningham, supra, 549 U.S. __; see also Black I, supra, at pp. 1262-1265 [judge’s imposition of consecutive sentences does not impermissibly increase penalty for a crime beyond prescribed statutory maximum].) That holding was not overturned by Cunningham, which did not address the distinct issue of imposition of consecutive sentencing for separate crimes. As the Black II court confirmed, “The high court’s decision in Cunningham does not call into question the conclusion we previously reached regarding consecutive sentences. The determination whether two or more sentences should be served in this manner is a ‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’ [Citation.] Accordingly, we again conclude that defendant’s constitutional right to jury trial was not violated by the trial court’s imposition of consecutive sentences on all three counts.” (Black II, supra, 41 Cal.4th at p. 823.) Black II is binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Harris, J.
“Now, you also have to decide when count two occurred and how do you do that? What is count two? … But I’m going to tell you about the elements. [¶] … [¶] [S.] testified about her birthday; she would be 14 years of age when the last touching occurred.” (Italics added.)
Defense counsel also referred to the last incident of abuse in his argument, as follows:
“Deputy Hakker trie[d] to get from [S.] when the last time anything did happen. During that interview she said she wasn’t sure. So, did it happen on Sunday, did it happen on a later date?” (Italics added.)
The prosecutor responded:
“Sunday is not alleged as a crime. That’s the one thing you need to remember. [Defendant’s] not accused of committing a molest against [S.] on Sunday. He’s accused of committing a molest against [S.] on or about the 27th, which is the Tuesday, which is when [S.] says she was in the living room, [the] defendant woke her up and had sex with her. That’s the date that’s charged. Not this Sunday.” (Italics added.)