Opinion
C088385
08-10-2020
THE PEOPLE, Plaintiff and Respondent, v. JERRON JAMES ROLEN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17FE020552)
A jury found defendant Jerron James Rolen guilty of sexual penetration of an unconscious or sleeping person and assault with the intent to commit sexual penetration. The trial court found true allegations that defendant had suffered two out-of-state convictions constituting strikes and sentenced defendant to an indeterminate prison sentence of 25 years to life.
Defendant appeals, arguing: (1) the evidence was insufficient to support the conviction for sexual penetration of an unconscious or sleeping person; (2) the trial court erred in finding the out-of-state convictions qualified as strikes under the Three Strikes Law; (3) the trial court erred in failing to discharge a seated juror pursuant to Penal Code section 1089; (4) the trial court abused its discretion in admitting evidence of his prior convictions; (5) his trial counsel rendered ineffective assistance by failing to request an accident instruction; and (6) the trial court should have dismissed the conviction for assault with the intent to commit sexual penetration as a lesser included offense of sexual penetration on an unconscious or sleeping person.
Undesignated statutory references are to the Penal Code.
Finding no error, we will affirm the judgment.
I. BACKGROUND
A. The Incident on the Train
Twenty-year old Emma boarded a passenger train in Salem, Oregon, bound for Sacramento, California. She found her assigned seat on the upper level of the train, taking an aisle seat next to defendant.
Emma and defendant chatted briefly. After some time, Emma reclined her seat and fell asleep. She awoke to find defendant arranging his jacket over her legs. Defendant explained that he thought Emma was cold. Emma responded that she was not cold, adding: "Please don't touch me." She then went back to sleep.
A short time later, defendant woke Emma by shaking her shoulder. This time, defendant told Emma that her phone was vibrating. Emma checked her phone and went back to sleep.
Later still, defendant woke Emma a third time, saying he needed to use the restroom. Emma turned her body towards the aisle to allow defendant to pass. She then went back to sleep.
Defendant returned from the restroom and took his seat without waking Emma. He then placed his hand on Emma's clothed hip or thigh. Moments later, he moved his hand down the front of Emma's leggings and underneath her underwear. Emma awoke to the sensation of defendant placing his fingers on her clitoris and vagina. As Emma would later testify: "He came back and I was already asleep. And the first thing I remember was feeling a hand go across the side of my hip and into my underwear."
On cross-examination, Emma elaborated: "I woke up because he touched my vagina." When asked to clarify whether she was awakened by defendant touching her thigh or her vagina, Emma responded: "Like you said, it was quick. He touched my thigh and immediately went into my yoga pants." On redirect, Emma clarified that she was not sure what was going on when defendant touched her hip or thigh, but that he "[v]ery quickly" moved his hand to her vagina, at which point, she realized he was sexually assaulting her.
Emma, now awake, opened her eyes and saw defendant's hand near her genital area. She quickly grabbed her phone and announced that she was going to the restroom. She then found a woman in an adjacent train car, whom she recognized from the train station in Salem. Emma tearfully told the woman that someone had put his hand down her pants.
Emma rode with the woman the rest of the way to Sacramento. Upon arrival, she reported the incident to a railroad employee, who summoned a detective employed by the railroad. Emma gave a statement and identified defendant as the man who had touched her. B. Charges and Jury Trial
Defendant was arrested and charged by amended information with sexual penetration of an unconscious or sleeping person (Pen. Code, § 289, subd. (d)—count one) and assault with intent to commit sexual penetration (§ 220—count two). The amended information further alleged that defendant had suffered two prior convictions for child molestation in Washington State (Wash. Rev. Code Ann. § 9A.44.086), both of which qualified as serious and violent felonies within the meaning of California's Three Strikes Law (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)). Defendant pled not guilty and denied the allegations.
The matter was tried to a jury in the summer of 2018. Emma and other prosecution witnesses testified substantially as described above. T.D., a Washington resident, testified to an earlier incident involving defendant. T.D recalled that she had been 13 years old in April 2011. Defendant, then age 21, was living in the same house. T.D. recounted that she went to sleep one night and awoke to find defendant's fingers inside her vagina. T.D. reported the incident to a school counselor the next day. Police were called. Defendant eventually pled guilty to two counts of second degree child molestation in Washington State. (Wash. Rev. Code Ann. § 9A.44.086.)
Defendant testified on his own behalf. He explained that the train lurched as he was returning from the restroom, causing him to fall forward. In defendant's version of events, he extended his arms to break his fall, and in so doing, inadvertently touched Emma's lower hip or stomach. Defendant denied putting his hand down Emma's leggings or touching her vagina.
The jury disbelieved defendant's account and found him guilty as charged C. Prior Convictions and Sentence
In a bifurcated proceeding, the trial court found true the allegations that defendant had two prior convictions for child molestation from Washington State. The trial court further found that the out-of-state convictions qualified as "serious felonies" under California law. After denying a defense motion to strike the prior convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the trial court sentenced defendant to an indeterminate sentence of 25 years to life. This appeal timely followed.
II. DISCUSSION
A. Sufficiency of Evidence
Defendant contends the evidence was insufficient to support the conviction for sexual penetration of an unconscious or sleeping person in violation of section 289, subdivision (d). According to defendant, Emma's testimony establishes that she was awake and aware at the time of the digital penetration, and therefore, no evidence supports the jury's determination that she was "unconscious" within the meaning of the statute. We are not persuaded.
"The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Jones (1990) 51 Cal.3d 294, 314.) Substantial evidence is evidence of " 'ponderable legal significance' " that is " 'reasonable in nature, credible, and of solid value.' " (People v. Johnson (1980) 26 Cal.3d 557, 576.) "We view the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Griffin (2004) 33 Cal.4th 1015, 1028.) "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends." (People v. Maury (2003) 30 Cal.4th 342, 403.) We will reverse for insufficient evidence only if " ' " 'upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " ' " (People v. Manriquez (2005) 37 Cal.4th 547, 577.)
Section 289, subdivision (d) provides: "Any person who commits an act of sexual penetration, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act or causing the act to be committed, shall be punished by imprisonment in the state prison for three, six, or eight years. As used in this subdivision, 'unconscious of the nature of the act' means incapable of resisting because the victim . . . [w]as unconscious or asleep." (§ 289, subd. (d)(1).) " 'It is settled that a victim need not be totally and physically unconscious in order for the statute . . . to apply.' " (People v. Lyu (2012) 203 Cal.App.4th 1293, 1300 (Lyu); see also People v. Howard (1981) 117 Cal.App.3d 53, 55 [interpreting former § 288a (now § 287, subd. (f)) and rejecting defense argument that "unconsciousness must be total, i.e., a total unawareness that the physical act is being performed"].)
Although Emma acknowledged having some awareness of defendant's hand on her thigh, she maintained she was asleep at the moment of penetration. "As with other facts, the direct testimony of a single witness is sufficient to support a finding unless the testimony is physically impossible or its falsity is apparent 'without resorting to inferences or deductions.' " (People v. Cudjo (1993) 6 Cal.4th 585, 608.) Emma's testimony was neither physically impossible nor apparently false.
As the People observe, "there is no bright line that distinguishes consciousness from sleep." (Burdine v. Johnson (S.D. Tex. 1999) 66 F.Supp.2d 854, 865.) On the record before us, where Emma testified to having been repeatedly awakened by defendant's seemingly innocuous touching, the jury could reasonably infer that she was only partially conscious when defendant briefly placed his hand on her thigh, and did not become fully awake until moments later, when she realized he was touching her vagina. By then, the violation of section 289, subdivision (d) had already occurred. (§ 289, subd. (k) [sexual penetration is the act of causing penetration, however slight, of the genital opening].) Viewing the evidence in the light most favorable to the prosecution, and presuming every fact the jury could reasonably infer from such evidence, we are satisfied that there was sufficient evidence from which the jury could have concluded that Emma was "unconscious of the nature of the act," and incapable of resisting, at the moment of penetration. (§ 289, subd. (d).) Substantial evidence thus supports defendant's conviction for sexual penetration of an unconscious or sleeping person. B. Prior Out-of-State Convictions
Lyu, on which defendant relies, is inapposite. There, the victim was sexually assaulted in the course of what was supposed to be an ordinary massage. (Lyu, supra, 203 Cal.App.4th at pp. 1295-1296.) Unlike the present case, the victim was fully awake and "instantly knew, perceived, and was cognizant" that the defendant had assaulted her. (Id. at p. 1301.) In this case, by contrast, Emma testified that she was asleep at the moment defendant touched her vagina. Lyu, which was concerned with section 289, subdivision (d)(2), has no bearing on the evidence here, which involves a victim unable to resist because she was asleep or not yet fully awake. (Compare § 289, subd. (d)(1) [sexual penetration of a person incapable of resisting because he or she was "unconscious or asleep" and § 289, subd. (d)(2) [sexual penetration of a person incapable of resisting because he or she was "not aware, knowing, perceiving, or cognizant that the act occurred"].)
Defendant contends the trial court erred in finding his prior out-of-state convictions constituted strikes under the Three Strikes Law. We disagree.
1. Additional Background
Defendant suffered two prior convictions for second degree child molestation in Washington State (Wash. Rev. Code Ann. § 9A.44.086), which the prosecution alleged to constitute serious and violent felony convictions and prior strikes within the meaning of California law (§§ 667, subd. (e)(2); 1170.12, subd. (c)(2)). The prosecution supported the enhancement allegations with certified records related to the prior convictions, including an amended information, a felony plea agreement, a signed plea form, and a copy of the Washington trial court's judgment and sentence. As relevant here, the plea form contains the following statement of the factual basis for the plea: "On two occasions in King County WA, between November 2010 and April 2011, I touched [T.D.'s] vagina. Doing so gave me a partial erection. [T.D.] was between 12 and 13 years old on both occasions and I am more than 36 months older than she is. We weren't married at the time of these events, nor were we in a state registered domestic partnership."
Defendant moved to dismiss the prior conviction allegations, arguing, as he does on appeal, that the elements of second degree child molestation under Washington law are not aligned with the elements of a violation of California's comparable statute, section 288, subdivision (a), and therefore, the prior Washington convictions do not necessarily constitute serious and violent felonies in California. The People opposed the motion, arguing both that the minimum elements of the Washington offenses were substantially the same as a violation of section 288, subdivision (a), and that the record of conviction established violations of the California statute, thereby establishing that the offenses qualified as strikes under California law. The trial court agreed with the prosecution and denied the motion.
2. Applicable Law
Under California's Three Strikes Law, a defendant's sentence must be increased upon proof that the defendant has been previously convicted of a "strike"—a " 'violent felony' " as defined in section 667.5, subdivision (c), or a " 'serious felony' " as defined in section 1192.7, subdivision (c). (§§ 667, subd. (f)(1), 1170.12, subd. (d)(1).) A qualifying strike includes "[a] prior conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison . . . if the prior conviction in the other jurisdiction is for an offense that includes all of the elements of a . . . serious felony as defined in subdivision (c) of Section 1192.7." (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2); People v. Denard (2015) 242 Cal.App.4th 1012, 1024 [prior out-of-state conviction must involve the same conduct as would qualify as a strike in California and "include all the elements of the California strike offense"].) Thus, defendant's prior Washington convictions "must involve conduct that would qualify as a serious [or violent] felony in California." (People v. Avery (2002) 27 Cal.4th 49, 53.)
Under the Sixth Amendment, "only a jury, and not a judge, may find facts that increase a maximum penalty, except for the simple fact of a prior conviction." (Mathis v. United States (2016) ___ U.S. ___ [136 S.Ct. 2243, 2252, 195 L.Ed.2d 604, 615].) Our Supreme Court applied this principle in People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo): "The trial court's role is limited to determining the facts that were necessarily found in the course of entering the conviction. To do more is to engage in 'judicial factfinding that goes far beyond the recognition of a prior conviction.' " (Id. at p. 134.) Under Gallardo, the trial court may only determine what factual findings were necessarily made by virtue of the conviction and, if the conviction was the result of a guilty plea, what was necessarily admitted as a factual basis for the plea.
The prosecution has the burden to prove all the elements of an alleged sentence enhancement beyond a reasonable doubt. (People v. Hudson (2018) 28 Cal.App.5th 196, 203.) " 'On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt.' " (Ibid.)
3. Analysis
Section 288, subdivision (a) reads, in pertinent part: "[A] person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony." The statute is violated if there is " 'any touching' of an underage child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child." (People v. Martinez (1995) 11 Cal.4th 434, 452.) Thus, the offense described by section 288, subdivision (a) has two elements: " '(a) the touching of an underage child's body (b) with a sexual intent.' " (United States v. Farmer (9th Cir. 2010) 627 F.3d 416, 419.)
Under Washington law, a "person is guilty of child molestation in the second degree when the person has, or knowingly causes another person under the age of eighteen to have, sexual contact with another who is at least twelve years old but less than fourteen years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim." (Wash. Rev. Code Ann. § 9A.44.086(1).) "Sexual contact" is defined by another statute to mean "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party." (Wash. Rev. Code Ann. § 9A.44.010(2).)
Defendant argues the elements of second degree child molestation in Washington State are not aligned with the elements of section 288, subdivision (a), such that the Washington convictions could not be said to constitute violations of the comparable California statute. He directs our attention to State v. Stevens (Wash. 2006) 143 P.3d 817 (Stevens), in which the Washington Supreme Court declared that sexual gratification is not an "explicit element" of second degree child molestation under Washington law. (Id. at p. 820.) He invites us to conclude that the Washington convictions cannot be considered serious felonies and strikes because they do not establish specific intent, an essential element of the comparable California statute. We decline the invitation.
The Stevens court was concerned with jury instructions for voluntary intoxication as a defense to second degree child molestation. (Stevens, supra, 143 P.3d at p. 819.) Relying on State v. Lorenz (Wash. 2004) 93 P.3d 133 (Lorenz), the State argued that no voluntary intoxication instruction was necessary because sexual gratification is not an essential element of first degree child molestation. (Stevens, supra, at p. 820.) The Stevens court rejected the State's argument, reasoning: "We find the State reads Lorenz too broadly. Lorenz held only that the purpose of sexual gratification was not an essential element of first degree child molestation that must be included in the to-convict instruction. This conclusion does not, however, relieve the State of its burden to show sexual gratification as part of its burden to prove sexual contact. In order to prove 'sexual contact,' the State must establish the defendant acted with a purpose of sexual gratification. Thus, while sexual gratification is not an explicit element of second degree child molestation, the State must prove a defendant acted for the purpose of sexual gratification. Intent is relevant to the crime of second degree child molestation because it is necessary to prove the element of sexual contact." (Ibid.)
We need not concern ourselves with the intricacies of the terminology used to describe the intent required under Washington's sex offense statutes. (See, e.g., Stevens, supra, 143 P.3d at p. 820 [describing sexual gratification as something other than an "explicit element" of second degree child molestation] and In re Heidari (Wash. 2012) 274 P.3d 366, 370 [suggesting that second degree child molestation "implicitly requires proof of intent"].) Whether sexual gratification is an "essential" or "explicit" element of second degree child molestation for purposes of Washington's pattern jury instructions is largely beside the point. What matters, for our purposes, is what defendant necessarily admitted in pleading guilty to second degree child molestation in Washington. (Gallardo, supra, 4 Cal.5th at p. 136.)
Stevens makes clear that the State had the burden of proving sexual gratification as part of the burden of proving sexual contact. (Stevens, supra, 143 P.3d at p. 820 ["Intent is relevant to the crime of second degree child molestation because it is necessary to prove the element of sexual contact," emphasis added].) Thus, sexual gratification was an element of the proof necessary for the State to obtain a conviction. (Ibid.; see also State v. Saunders (Wash.Ct.App. 2013) 311 P.3d 601, 606 ["although 'sexual gratification' is an element of the proof necessary for the State to obtain a child molestation conviction, it is not an essential element for purposes of a to-convict instruction"].) Here, defendant's guilty plea necessarily admitted "sexual contact" with T.D. (Wash. Rev. Code Ann. § 9A.44.086(1).) By definition, defendant's guilty plea encompassed an admission that the touching was "done for the purpose of gratifying sexual desire of either party or a third party." (Wash. Rev. Code Ann. § 9A.44.010(2).) It seems self-evident that an admission of sexual contact "for the purpose of gratifying sexual desire of either party or a third party" must necessarily encompass an admission of "the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires" of perpetrator or victim, as required to prove a violation of section 288, subdivision (a). Defendant does not contend otherwise. Accordingly, we conclude the trial court properly determined that defendant's prior out-of-state convictions qualified as strikes under California law. C. Juror No. 2
We have focused our analysis on the elements of defendant's Washington convictions, rather than the factual basis for his guilty plea, because defendant did not specifically admit that he harbored a lewd intent when he touched T.D.
Next, defendant argues the trial court erred in failing to discharge Juror No. 2 for cause. We are not persuaded.
1. Additional Background
During voir dire, Juror No. 2 disclosed that a good friend had been molested many years ago, with lifelong consequences. When asked whether his friend's experience would cause him to be biased against defendant, Juror No. 2 responded, "Yeah, probably not."
After 12 jurors had been seated, Juror No. 2 said: "The question of natural bias has not come up. Does that play any part in the jury selection?" When asked what he meant by "natural bias," Juror No. 2 responded that he was inclined to believe "the person making the accusation." Upon further questioning, Juror No. 2 affirmed that he was capable of deciding the case based on the evidence presented and the law as instructed by the trial court. Defendant never challenged Juror No. 2 for cause or peremptorily, and never, until now, expressed any concerns regarding the composition of the jury.
2. Analysis
Section 1089 " 'authorizes the trial court to discharge a juror at any time before or after the final submission of the case to the jury if, upon good cause, the juror is "found to be unable to perform his or her duty." ' " (People v. Nunez and Satele (2013) 57 Cal.4th 1, 55.) "Once a trial court is put on notice that good cause to discharge a juror may exist, it is the court's duty 'to make whatever inquiry is reasonably necessary' to determine whether the juror should be discharged." (People v. Espinoza (1992) 3 Cal.4th 806, 821.)
Here, Juror No. 2's question about "natural bias" put the trial court on notice that he may be unable to perform his duty to decide the case impartially. The trial court appropriately followed up with the juror, in the presence of defendant, defendant's counsel, and the prosecutor. Defendant raised no objection to the trial court's inquiry or Juror No. 2's responses. "Having expressed no desire to have the juror discharged at the time . . . defendant 'is not privileged to make that argument now for the first time on appeal.' " (People v. Holloway (2004) 33 Cal.4th 96, 124; see also People v. Kipp (1998) 18 Cal.4th 349, 364-366 [argument that juror should have been excused for cause was forfeited because peremptory challenges were not exhausted and juror was not challenged below]; People v. Bell (1998) 61 Cal.App.4th 282, 289 [objection to discharge of juror on constitutional grounds deemed forfeited].)
In any case, defendant's contention lacks merit. "The trial court's decision whether or not to discharge a juror under section 1089 is reviewed for abuse of discretion and will be upheld if supported by substantial evidence; to warrant discharge the juror's bias or other disability must appear in the record as a demonstrable reality." (People v. Holloway, supra, 33 Cal.4th at pp. 124-125.) Here, the trial court properly questioned Juror No. 2 and received sufficient assurance that he was capable of listening to the evidence and deciding the case impartially. Nothing in the record suggests that Juror No. 2's assurances were unworthy of belief, such that there was good cause to remove him, or the failure to excuse him violated defendant's right to an impartial jury. On the record before us, we conclude that substantial evidence supports the trial court's exercise of discretion to retain Juror No. 2, as nothing suggests that Juror No. 2 was actually biased or unable to perform his duties as a demonstrable reality. D. Evidence of Uncharged Offenses
Next, defendant argues the trial court erred in admitting evidence of the uncharged offenses involving T.D. Specifically, he argues the trial court abused its discretion under Evidence Code section 352 by admitting the Washington convictions and allowing T.D. to testify about the underlying acts. The People respond that the trial court acted within its discretion in admitting the evidence. We agree with the People.
1. Additional Background
Prior to trial, the prosecution moved in limine to admit evidence of the uncharged offenses involving T.D. pursuant to Evidence Code section 1108. The prosecution's motion sought to introduce both the certified record of defendant's Washington convictions and T.D.'s testimony describing the underlying acts. The motion anticipated that T.D. would testify she awoke to defendant touching her vagina. And she would further testify that, although she physically resisted, defendant penetrated her vagina and anus with his fingers and penis, causing her to bleed. The prosecution's motion indicated that defendant had molested T.D. on three previous occasions, and his semen had been found in her underwear. Defendant opposed the motion, arguing the evidence was inherently inflammatory, and would necessitate an undue consumption of time.
The trial court found the evidence admissible to prove propensity under Evidence Code section 1108, a finding defendant does not challenge. The trial court further found that the proffered evidence was more probative than prejudicial under Evidence Code section 352. The trial court noted, however, that defendant was not convicted of forcible sex acts in Washington. The trial court cautioned, "I don't want the jury to be left with some feeling that he was actually convicted of a forcible sex act when he was not."
The prosecutor later informed the trial court that he had decided to confine his questioning of T.D. to the acts underlying the convictions; namely, the touching that awakened T.D. from her slumber. The trial court agreed with the prosecutor's decision.
2. Analysis
Generally speaking, Evidence Code section 1101 "prohibits the admission of other-crimes evidence for the purpose of showing the defendant's bad character or criminal propensity." (People v. Catlin (2001) 26 Cal.4th 81, 145.) But Evidence Code section 1108 contains an exception to that general rule, allowing evidence of the defendant's commission of "another sexual offense or offenses" to establish the defendant's propensity to commit sexual offenses and for its bearing on the probability or improbability the defendant has been falsely or mistakenly accused of such an offense. (See People v. Falsetta (1999) 21 Cal.4th 903, 912; People v. Medina (2003) 114 Cal.App.4th 897, 904.) Evidence that a defendant has committed "another sexual offense or offenses" under Evidence Code section 1108 "is presumed admissible and is to be excluded only if its prejudicial effect substantially outweighs its probative value in showing the defendant's disposition to commit the charged sex offense or other relevant matters." (People v. Cordova (2015) 62 Cal.4th 104, 132, emphasis added.)
Defendant acknowledges the challenged propensity evidence was admissible under Evidence Code section 1108, but argues the evidence should have been excluded under Evidence Code section 352. Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." " 'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Bolin (1998) 18 Cal.4th 297, 320.) Thus, evidence should be excluded as unduly prejudicial " 'when it is of such nature as to inflame the emotions of the jury, motivating [jurors] to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.' " (People v. Escudero (2010) 183 Cal.App.4th 302, 310.)
In conducting the weighing process under Evidence Code section 352, the trial court should consider the uncharged offense's "nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (People v. Falsetta, supra, 21 Cal.4th at p. 917.)
We review the trial court's ruling under Evidence Code section 352 for abuse of discretion. " 'A trial court's exercise of its discretion under [Evidence Code] section 352 " 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " ' " (People v. Hernandez (2011) 200 Cal.App.4th 953, 966.)
Defendant argues the inflammatory nature of the uncharged offenses involving T.D. made the evidence substantially more prejudicial than probative. Had the prosecutor presented all of the evidence in the proffer (such as the evidence that defendant forcibly penetrated T.D.'s vagina and anus), we might agree that the trial court approached the limits of its discretion in weighing its probative value against any prejudicial effect. But that is not what happened. Instead, the prosecutor carefully confined his questions to the subject of defendant awakening T.D. by touching her vagina. The prosecutor did not elicit testimony concerning any of the other, more inflammatory, details of defendant's offenses against T.D. On the record before us, we conclude that any error in admitting the proffered evidence was harmless.
To the extent defendant contends the trial court abused its discretion in admitting the evidence that he awakened T.D. by touching her vagina, we reject the contention. Contrary to defendant's suggestion, the evidence before the jury was not unduly inflammatory compared to the charged offenses. Although the Washington offenses involved sex crimes against a minor, T.D. was an adult at the time of the trial, and her testimony was appropriately sanitized to limit its prejudicial effect. With the trial court's encouragement, T.D.'s testimony was presented quickly and without irrelevant detail, focusing solely on the touching that awakened her. As even defendant acknowledges, that evidence was probative of his predisposition to digitally penetrate sleeping females. On the record before us, the trial court could reasonably conclude the probative value of T.D.'s testimony outweighed any prejudicial effect. (Evid. Code, § 352.)
We are equally unmoved by defendant's contention that the record of the Washington convictions was cumulative of T.D.'s testimony and posed a risk of distracting or confusing the jury. Taking these contentions in turn, we cannot agree that the Washington convictions were cumulative of T.D.'s testimony, or more prejudicial than probative. Unlike T.D.'s testimony, the Washington convictions contained defendant's admission that he twice touched T.D.'s vagina. Obviously, T.D. could not have provided any such admission. There was no abuse of discretion in the trial court's implied finding that the Washington convictions need not be excluded as cumulative.
Nor was there any abuse of discretion in the trial court's implied finding that the certified conviction records would be unlikely to confuse or distract the jury. Although the convictions contained information about defendant's plea and sentence, they also meant the jury would not be tempted to convict him simply to punish him for the other offenses. (People v. Lewis (2009) 46 Cal.4th 1255, 1287.) "Additionally, the convictions meant there was little danger of confusing the issues or requiring an inefficient minitrial to determine defendant's guilt of the previous crimes." (People v. Loy (2011) 52 Cal.4th 46, 61.) Under the circumstances, we cannot say the trial court abused its discretion in admitting defendant's conviction records. E. Ineffective Assistance of Counsel
Defendant next argues his trial counsel rendered ineffective assistance by failing to request an accident instruction in connection with count two, which charged defendant with assault with intent to commit sexual penetration (§ 220). The prosecution's theory of criminal liability with respect to count two was that defendant committed assault with intent to commit sexual penetration when he touched Emma's clothed thigh or hip. Defendant acknowledged touching Emma's hip or stomach, but claimed the touching was accidental, and occurred only as a reaction to the movement of the train. Despite this testimony, defense counsel neither requested an accident instruction nor made mention of any accidental touching in closing argument. Recognizing the trial court had no sua sponte duty to give an accident instruction (People v. Anderson (2011) 51 Cal.4th 989, 996-998), defendant argues his trial counsel's failure to request one constituted ineffective assistance requiring reversal. We disagree.
To establish ineffective assistance of counsel under federal and California constitutional standards, a defendant must, by a preponderance of the evidence, prove: (1) his trial counsel's representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency resulted in prejudice to defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) The defendant must affirmatively prove that, but for counsel's errors, defendant had a reasonable probability of a better outcome, where a " 'reasonable probability is a probability sufficient to undermine confidence in the outcome.' " (People v. Maury (2003) 30 Cal.4th 342, 389.)
If the record "fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." (People v. Maury, supra, 30 Cal.4th at p. 389.) Here, the record is silent as to why defendant's trial counsel failed to request an accident instruction in connection with count two, but we need not look far for a reasonable explanation.
A claim that a crime was committed by accident " 'amounts to a claim that the defendant acted without forming the mental state necessary to make his or her actions a crime.' " (People v. Anderson, supra, 51 Cal.4th at p. 998.) Here, though jurors were not given an accident instruction, they were accurately instructed on the elements of assault with intent to commit sexual penetration, which requires both that defendant acted "willfully" (defined as "on purpose") and with the intent to commit a violation of section 289, subdivision (d). The jury was also instructed on the prosecution's burden of proof and the union of act and general intent for purposes of both counts. An accident instruction would have been duplicative of these instructions, which together informed the jury of the prosecution's burden to prove intent beyond a reasonable doubt. On the record before us, defense counsel could have reasonably believed that an accident instruction on count two was unnecessary. (See People v. Lucero (2000) 23 Cal.4th 692, 730 ["Defense counsel cannot be faulted for not requesting an instruction that would duplicate the one given by the court"].)
Defense counsel could have also believed that an accident instruction would have done little to bolster the defense of count one, but would have been likely to distract the jury from the primary defense strategy, which was to undermine Emma's credibility. We perceive the outlines of such a strategy in defense counsel's closing argument. Rather than pursue an accident defense, defense counsel argued that Emma's testimony was unworthy of belief and insufficient to satisfy the prosecution's burden of proof. By contrast, defense counsel argued that defendant, having suffered the consequences of his previous sex offenses, was "the least likely person that would have done this." The jury obviously disagreed. Nevertheless, defense counsel may have reasonably believed that framing the case as a credibility contest between Emma, on the one hand, and defendant, on the other, offered defendant the surest path to a complete acquittal. That the jury rejected this approach does not mean defendant was denied effective assistance of counsel. F. Lesser Included Offense
Finally, defendant argues his conviction for assault with intent to commit sexual penetration (count two) should have been dismissed because it is a lesser included offense of his conviction for sexual penetration of an unconscious or sleeping person (count one). We disagree.
The trial court stayed defendant's sentence on count two pursuant to section 654.
"In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct." (People v. Reed (2006) 38 Cal.4th 1224, 1226.) However, "[a] judicially created exception to the general rule permitting multiple conviction 'prohibits multiple convictions based on necessarily included offenses.' " (Id. at p. 1227.) Where the validity of multiple convictions is at issue, the statutory elements test is used to determine whether an offense is necessarily included in another. (Id. at pp. 1230-1231.) "Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former." (Id. at p. 1227.) Dismissal of the lesser included offense is required where the defendant is convicted of both greater and lesser offenses. (People v. Medina (2007) 41 Cal.4th 685, 701-702.)
A violation of section 220, subdivision (a)(1) occurs when a person "assaults another with intent to commit" any of several sex offenses, including an act of sexual penetration in violation of section 289. (§ 220, subd. (a)(1).) By its terms, section 220, subdivision (a) requires an assault, which is defined by statute to mean, "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240 [defining the general crime of assault].) Here, the violation of section 220, subdivision (a) occurred when defendant touched Emma's thigh, prior to touching her vagina.
By contrast, a violation of section 289, subdivision (d) occurs when a person "commits an act of sexual penetration, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act or causing the act to be committed." (§ 289, subd. (d).) Sexual penetration is defined in section 289, subdivision (k)(1) as "the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant or another person's genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object." As the People observe, section 289, subdivision (d) may be violated by the slightest penetration of an unclothed or unconscious victim, without any preliminary touching of the victim's thigh. Put another way, a violation of section 289, subdivision (d) can occur without a violation of section 220. (Cf. People v. Leal (2009) 180 Cal.App.4th 782, 793 [assault with intent to commit rape is not a lesser included offense of sexual penetration "by artifice, pretense, or concealment" (§ 289, subd. (f)), as the latter crime can be committed without committing an assault].) Thus, under the statutory elements test, assault with intent to commit sexual penetration is not a necessarily included lesser offense to sexual penetration of an unconscious or sleeping person. Defendant was thus properly convicted of both crimes.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
ROBIE, Acting P. J. /S/_________
KRAUSE, J.