Opinion
G051623
02-27-2017
THE PEOPLE, Plaintiff and Respondent, v. LUIS A. ROSALES, Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12NF1894) OPINION Appeal from a judgment of the Superior Court of Orange County, James Edward Rogan, Judge. Affirmed. Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Luis A. Rosales of a lewd act on a child under 14 years old (Pen. Code, § 288, subd. (a); count 1); sexual penetration by a foreign object on a child (§ 289, subd. (j); count 2); an attempted lewd act on a 14-year-old child (§§ 288, subd. (c)(1), 664, subd. (a); count 3); and child annoyance (§ 647.6, subd. (a)(1); count 4). With respect to count 1, the jury found true the allegation he engaged in substantial sexual conduct, namely, digital penetration (§ 1203.066, subd. (a)(8)).
All statutory references are to the Penal Code.
The court sentenced defendant to a total prison term of six years four months, as follows: the midterm of six years on count 2, plus a consecutive term of four months (one-third the midterm of two years, halved due to the attempt) on count 3. The court imposed a six-year sentence on count 1 and a one-year county jail sentence on count 4, but stayed them pursuant to section 654.
On appeal defendant contends his convictions for counts 3 and 4 must be reversed for insufficient evidence and that his child annoyance conviction (count 4) must be reversed for jury instructional error. We agree the court erroneously instructed the jury that the People were not required to prove defendant's motive for any crime, which was inconsistent with the court's instruction that motive is an element of the crime of child annoyance. The error, however, was harmless beyond a reasonable doubt. Furthermore, defendant's challenge to the sufficiency of the evidence as to counts 3 and 4 is without merit. Accordingly, we affirm the judgment in its entirety.
FACTS
Counts 3 and 4
On June 26, 2011, 14-year-old J.D. was walking to her friend's house when a man stopped his car and asked her if she needed a ride. J.D. felt uncomfortable and told him, "no." He drove his car past her, then turned back around, and offered her a ride "to anywhere [she] wanted to go." Seeing that she was on the phone, he said, "If that's your friend, I can take you to her house." J.D. kept saying, "No thank you, I'm fine." His tone changed, and he demanded, "Get in the car." J.D. was scared, and started running. The man quickly drove away. J.D. memorized the car's license plate number.
At her friend's house, J.D. told the friend about the man. At home that night, she told her father and her sister. At her father's instruction, J.D. reported the incident to the 911 operator. J.D. described the man as Hispanic, in his 40s, and chunky or chubby.
Officer Matthew Adrian learned from the car's license plate that defendant was the registered owner. Adrian included defendant's photo in a photographic lineup, but J.D. was unable to pick out anyone from the lineup.
Adrian went to defendant's residence and left his card with defendant's mother. When defendant quickly contacted him, Adrian asked him to come to the station.
In a January 31, 2012 interview, defendant said he lived with his mother, wife, and baby, and worked doing waterproofing. Adrian told defendant that on a Monday in June, he had offered to give a girl a ride and he needed to be honest about what happened. Defendant replied the girl said she was going to a friend's house, he asked her if she wanted him to take her, she said no, and he drove off. In response to Adrian's questions, defendant replied the girl looked around 20 years old and he did not think she was underage. Defendant agreed that "maybe she was good looking or something" and maybe at most he wanted to get her telephone number. Defendant said he was not persistent in asking her and, if anything, he might have asked, "Are you sure?" He denied saying, "Just get in the car," or that the girl got scared and started running away. Defendant said he had not done that before and had not done that since.
Counts 1 and 2
A few weeks after the encounter with J.D., on July 18, 2011, 13-year-old L.A. was running toward her aunt's office. L.A. was crying because she had been in a fight with her mom that turned physical.
Defendant stopped his car in front of L.A., rolled down his window, and asked if she was okay. L.A. said she was fine. He asked where she was headed. L.A. said she was going to her aunt's work place. The man offered to take her there. L.A. accepted the offer. The man had rough hands and his shirt had a logo. He said his name was Manuel and he was 23 years old. He told her that he "only picks up pretty girls." He drove her to a convenience store, where he bought her a bottle of water and some candy.
After leaving the convenience store, the man drove to a freeway bridge and parked the car under the overpass. When L.A. asked him why he was stopping, he said he wanted to "chat just a little bit." They talked briefly about "family" and his high school days. Then he claimed there was something on her leg. He put his hand on her leg and moved it toward her upper thigh. L.A. initially froze, then told him to stop.
The man began yelling. He said, "Shut up," and "If you say anything, like you think this is bad." He reached his hand inside her shorts and underwear and put his finger inside her vagina. L.A. again told him to stop. She felt a hand on her throat and tried to move his hand.
L.A. saw a "guy" walking a bicycle on the sidewalk. The man in the car threatened that if she screamed, she "would be dead and it would be worse." After the bicycle passed by, the man kept his fingers in L.A.'s vagina until finally he stopped. The man's phone rang; he said it was his wife and did not answer it.
The man then drove L.A. to her aunt's workplace. He asked L.A. for her telephone number. She gave him a false number, but he got angry, so she apologized and gave him the right number. He dropped her off and she got out. He called out and she turned around. He took a picture of her, saying he wanted to show his friends at work. L.A. told her aunt and a cousin (her aunt's daughter) that a friend had dropped her off.
L.A. stayed with her aunt for two weeks. While there, L.A. received calls from a private number late at night, starting on the night of the incident. The first time, she answered the call, not knowing who it was. The man said, "Hey, do you remember me?" L.A. felt "creepy" and hung up. He called again and L.A. ignored the call. She continued getting calls and finally answered and told the man to stop calling. A few weeks later, L.A. changed her phone.
The first person L.A. told about the incident in the car was a close friend, during a weekend church retreat. The friend persuaded L.A. to tell her mother what happened. L.A.'s mother took her to the police station to report the incident. L.A. was scared because she believed the man's threats that she should not say anything.
Officer Mark Takai was working on a case involving a man who was contacting girls from his car. Takai learned that Adrian had a similar case. Takai took the photographic lineup Adrian had made and showed it to L.A. When L.A. looked at the photo, her hand shook and she identified defendant. At trial, L.A. testified that when she saw the photo she went into shock and "freaked out."
Takai contacted defendant, who voluntarily came in for a recorded interview. Defendant guessed he was there for the same reason as last time, which was offering a ride to someone whom the detective said was a minor. Defendant said he had asked girls if they wanted a ride between five and 10 times in the past. One girl got into his car; the others said no. The girl was crying and went to her aunt's work place. Defendant denied stopping anywhere. He described her as around 20 years old, light skinned, tall, medium build, Hispanic, with dirty blonde hair, and wearing shorts.
Takai asked whether they stopped at a convenience store to buy some stuff and then parked "under an underpass [sic]." Defendant replied, "Oh yeah." Defendant confirmed that his phone had rung and he had told the girl his wife was calling. He also told her he had recently had a baby girl. Defendant denied touching her vagina or telling her to shut up. She gave him her phone number. He thought he called her once and someone answered and said, "This isn't [her] number." Defendant confirmed he drove her to her aunt's workplace.
Defendant was then read his rights and said he wanted an attorney.
DISCUSSION
Substantial Evidence Supports the Attempted Lewd Act and Child Annoyance Convictions
Defendant contends no substantial evidence supports his count 3 (attempted lewd act on a child 14 years of age) and count 4 (child annoyance) convictions, which involved his conduct with J.D.
The information charged defendant in counts 3 and 4 with attempted lewd act on a child and child annoyance with respect to "Jane Doe #2." Counts 1 and 2 (and the enhancement associated with count 1) involved "Jane Doe #1."
In examining a defendant's challenge to the sufficiency of the evidence, a reviewing court determines "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 318-319, fn. omitted.) We review the whole record "in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Jones (1990) 51 Cal.3d 294, 314.) To be substantial, evidence must be "reasonable, credible, and of solid value." (Ibid.) "[T]he testimony of a single witness that satisfies the standard is sufficient to uphold the finding." (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) "Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) "Given this court's limited role on appeal, defendant bears an enormous burden in claiming there was insufficient evidence to sustain his conviction . . . ." (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)
As to count 3, the crime of committing a lewd act on a child 14 years of age occurs when a person, "with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires" of that person or a child victim, "willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof" (§ 288, subd. (a)) of the child victim who is the age of 14 or 15 years, and is at least 10 years younger than that person (§ 288, subd. (c)(1)). "An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (§ 21a.) Generally, a "person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration" (§ 644), is "punished by imprisonment in the state prison or in a county jail, respectively, for one-half the term of imprisonment prescribed upon a conviction of the offense attempted" (id., subd. (a)).
The crime of child annoyance occurs when a person "annoys or molests any child under 18 years of age." (§ 647.6, subd. (a)(1).) The offense "does not require a touching," but it does require conduct that a "'"normal person would unhesitatingly be irritated by"'" and that is "'"motivated by an unnatural or abnormal sexual interest"'" in the child victim. (People v. Lopez (1998) 19 Cal.4th 282, 289.) The test is an objective one and asks whether the defendant's conduct would unhesitatingly irritate or disturb a normal person, not whether the child was actually irritated or disturbed. (Id. at p. 290.)
As to his attempted lewd act conviction, defendant contends the evidence is insufficient to prove he had the "specific intent to touch J.D. with the intent to arouse or that the act of asking her if she wanted a ride was a direct, but ineffectual step towards its commission." As to his child annoyance conviction, he contends the evidence is insufficient to prove he was motivated by an unnatural or abnormal sexual interest.
With respect to both counts, defendant argues he made no suggestive or sexual comments or movements when he asked J.D. whether she wanted a ride. He contends his actions with L.A. "a month" after offering a ride to J.D. were not sufficient proof of his intentions and motivations at the time he encountered J.D. and offered her a ride.
In his reply brief, defendant mentions People v. La Fontaine (1978) 79 Cal.App.3d 176 (La Fontaine) for the first time as support for his evidentiary challenge. The La Fontaine court held that solicitation of a lewd act, without more, was insufficient to constitute an attempt to commit a lewd act. (Id. at pp. 182-183.) Defendant acknowledges, however, "that later decisions on point have either distinguished La Fontaine or flatly rejected its holding. (See, e.g., People v. Herman (2002) 97 Cal.App.4th 1369; Hatch v. Superior Court (2000) 80 Cal.App.4th 170, 188; People v. Ansaldo (1998) 60 Cal.App.4th 1190, 1196.)"
Like People v. Ansaldo (1998) 60 Cal.App.4th 1190 (Ansaldo) and the other decisions listed above, we decline to follow La Fontaine. In Ansaldo, a jury convicted the defendant, inter alia, of two counts of committing lewd and lascivious acts on a minor, and one count of attempting that offense (Ansaldo, at p. 1192), with respect to three separate 14-year-old victims (id. at pp.1192, 1194). When the defendant was alone with the "second" victim, he asked if she would have sex with him in the future for payment. (Id. at pp. 1193-1194.) She refused and he took her home. (Ibid.) Subsequently, he persuaded the first and the third victims to masturbate him. (Id. at p. 1195.)
On appeal the Ansaldo defendant, relying principally on La Fontaine, contended the evidence was insufficient to sustain his conviction of an attempted lewd act on the victim who refused his solicitation. (Ansaldo, supra, 60 Cal.App.4th at p. 1195.) The Ansaldo court disagreed, declining to follow La Fontaine's holding "that acts of solicitation are insufficient to constitute attempts." (Ansaldo, at p. 1196.) The Ansaldo court observed that La Fontaine was inconsistent with People v. Memro (1985) 38 Cal.3d 658, where our Supreme Court stated, "'"[W]henever the design of a person to commit a crime is clearly shown, slight acts done in furtherance of that design will constitute an attempt, and the courts should not destroy the practical and common-sense administration of the law with subtleties as to what constitutes preparation and what constitutes an act done toward the commission of a crime."'" (Ansaldo, at p. 1197.) Ansaldo concluded, "There can be no doubt, based on Ansaldo's strikingly similar methods of operation involving all three victims, that his intent to commit lewd and lascivious acts on the second victim was clearly shown. As Memro holds, in such a case, slight acts done in furtherance are all that is necessary. Ansaldo's attempt to have the second victim ingest drugs, his comment" (id. at p. 1197) "that he could cut someone's throat and he wouldn't care" (id. at p. 1192), "which frightened her, and his offer of money for sex went beyond mere preparation. The fact that she interpreted his request to be for sex at some future point is not determinative. The jury was free to infer that had she, like her sister, agreed to his request, Ansaldo would have proceeded, at that moment, with the lewd and lascivious acts, just as he had with the other two victims." (Id. at p. 1197.)
Here, the evidence was sufficient to support the count 3 and 4 convictions. Although defendant's acts with J.D. were not as overtly sexual as Ansaldo's actions with Ansaldo's second victim, defendant was aggressive enough with J.D. to terrify the girl and cause her to run away. Defendant's method of operation with J.D. was similar to the incident with L.A. Both episodes initially involved defendant's asking a 13- or 14-year- old girl walking alone whether she wanted a ride, and his remaining in the car as he asked the question. The jury could properly infer that defendant intended to sexually assault J.D. if she got into his car. The evidence supported the jury's findings that the solicitation of J.D. to enter his car was a direct but ineffectual act to commit a lewd act upon J.D. and that he was motivated by an unnatural or abnormal sexual interest in her. Indeed, defendant admitted to police that he stopped to offer 14-year-old J.D. a ride because "maybe she was good-looking" and he thought he could get her phone number if he gave her a ride. The Court Erroneously (Albeit Harmlessly) Instructed the Jurors on Motive as to Count 4
The court instructed the jurors that an element of the offense of child annoyance (count 4) is the requirement that the defendant's conduct be "motivated by an unnatural or abnormal sexual interest in the child." (CALCRIM No. 1122; In re Gladys R. (1970) 1 Cal.3d 855, 867-868.) But the court also instructed the jury, in a general instruction not specific to a particular crime, that the People were not required to prove defendant had a motive to commit any of the charged crimes. (CALCRIM No. 370.)
On appeal defendant contends the court — by failing to clarify that CALCRIM No. 370 does not apply to the offense of child annoyance — removed the motive element from the child annoyance charge and thereby violated his constitutional rights. He concludes his conviction on count 4 must be reversed.
The Attorney General concedes the error, but argues it was harmless beyond a reasonable doubt "because the jury's guilty verdict on count 3 demonstrated that the jury believed [defendant's] conduct was sexually motivated and the closing arguments on both sides repeatedly emphasized that count 4 required proof that [his] conduct was motivated by an unnatural interest in children. Accordingly, there was no risk that [defendant's] count 4 conviction was based on a mistaken belief that sexual motivation was not required."
Defendant counters that the closing arguments "discussed 'intent' more than 'motivation,'" and that the two words are not synonymous: "In relation to murder cases, the California Supreme Court has noted, 'Although motive is often probative of an intent to kill, the absence of a clear motive does not demonstrate the lack of an intent to kill.' [Citation.] Similarly, as to count 4, the jury could have found intent without finding a motive." Defendant further argues the evidence on his motivation for offering J.D. a ride "was far from overwhelming . . . ."
A trial court bears a sua sponte duty to instruct the jury on the elements of an offense (People v. Flood (1998) 18 Cal.4th 470, 479-480), including mental elements (People v. Cole (2004) 33 Cal.4th 1158, 1210-1211). An instructional error that relieves the prosecution of its burden to prove each element beyond a reasonable doubt violates the defendant's federal and state constitutional rights. (Id. at p. 1208.)
We independently review assertions of instructional error. (People v. Lamer (2003) 110 Cal.App.4th 1463, 1469.) A trial court's failure to instruct the jury on all elements of an offense is a constitutional error (People v. Flood, supra, 18 Cal.4th at p. 475) subject to the Chapman v. California (1967) 386 U.S. 18, 24 prejudice standard, which examines whether the error was harmless beyond a reasonable doubt (Flood, at pp. 494, 503.) Here, the court instructed the jury on all elements of child annoyance, but also gave a general instruction on motive which constituted inconsistent surplusage as to the crime of child annoyance. People v. Maurer (1995) 32 Cal.App.4th 1121 (Maurer), on which defendant relies and which we discuss below, treated this same error as a constitutional error subject to the Chapman standard (Maurer, at p. 1128), and concluded the error was not harmless beyond a reasonable doubt (id. at p. 1131). In contrast, in People v. Cain (1995) 10 Cal.4th 1 (Cain), our Supreme Court held the trial court erred by instructing the jury on implied malice, which was irrelevant to the felony-murder theory on which the defendant was tried. (Id. at p. 35.) The Cain defendant contended "the implied malice instruction misled the jury in two respects": It "injected confusion into the intent instructions properly given under the felony-murder theory" (ibid.) and "prevented the jury from properly understanding that intent to kill was a necessary element of the special circumstance charges" (id. at pp. 35-36). After considering "the specific language challenged, the instructions as a whole and the jury's findings" (id. at p. 36), Cain concluded there was no "'reasonable likelihood' the jury understood the instructions as the defendant assert[ed]" (ibid.). Here, regardless of the applicable standard of prejudice, we have concluded, as discussed below, that the instructional error was harmless even under the more stringent Chapman standard.
In analyzing the prejudicial effect of a constitutional instructional error, we "determine whether 'the facts found by the jury were such that it is clear beyond a reasonable doubt that if the jury had never heard the impermissible instruction its verdict would have been the same.'" (People v Avila (1995) 35 Cal.App.4th 642, 663.) For example, we determine whether "the jury resolved the same issue against defendant in another context." (People v. Hayes (1990) 52 Cal.3d 577, 628.) In conducting our review, we presume that jurors are intelligent and capable of correctly understanding, correlating, applying, and following the court's instructions. (People v. Lewis (2001) 26 Cal.4th 334, 390.)
We agree with the parties that the court erred by failing to modify CALCRIM No. 370 to exclude child annoyance from its coverage. The instruction, as given, created a potential for juror confusion. Nonetheless, for the reasons discussed below, we conclude the error was harmless beyond a reasonable doubt.
The jury — by convicting defendant of attempting a lewd act on J.D. (§ 288) — necessarily found he willfully attempted to touch a part of her body with the intent of arousing, appealing to, or gratifying his or her lust, passions, or sexual desires. (CALCRIM No. 1110.) A defendant touches a child "with the requisite sexual intent" under section 288 when the defendant's physical contact is "sexually motivated." (People v. Martinez (1995) 11 Cal.4th 434, 438, italics added.) Similarly, with respect to the statute governing child annoyance, "[a]lthough no specific intent is required, section 647.6, subdivision (a)(1), does require that the acts be '"motivated by an unnatural or abnormal sexual interest or intent with respect to children."'" (People v. Brandao (2012) 203 Cal.App.4th 436, 441, italics added.) "[T]here can be no normal sexual interest in any child . . . ." (People v. Shaw (2009) 177 Cal.App.4th 92, 103.)
Thus, although "intent" and "motivation" are not synonymous legal terms — as shown by defendant's example that a defendant can intend to kill, yet have no clear motive — here, the jury's finding that defendant intended to touch J.D. lewdly within the meaning of section 288 necessarily means he acted toward her with an abnormal sexual motivation.
Counsels' closing arguments spotlighted the motivation requirement for a child annoyance conviction. (See Cain, supra, 10 Cal.4th at p. 37 [no reasonable likelihood an erroneously given instruction misled the jury, in part because prosecutor acknowledged in summation the "required intent to kill"].) The prosecutor, in her closing argument, listed the requirements for child annoyance, including the motivation element: "Count 4, annoying a child. . . . [D]riving up to her and telling her to get in the car multiple times. A normal person without hesitation would be disturbed, irritated, offended, or injured by the defendant's conduct." "And his conduct was motivated by an his [sic] unnatural or abnormal sexual interest in a child and she was under 18 at the time." She emphasized that defendant in his police interview said "'maybe she was good-looking or something.'" The prosecutor argued, "That's the sexual intent right there."
Defense counsel argued in his closing argument, "The most important element you will see in all these crimes is that [defendant], if you believe he acted with this unnatural sexual intent, he was basically a sexual deviant after minor girls . . . ." "You accept [defendant's] guilt involving [L.A.] to even get this whole sexual intent with [J.D.], otherwise, it's a guy offering a ride to a girl who never gets inside the car and drives away."
No reasonable jury would be confused under these circumstances. Defendant relies on Maurer, where the appellate court reversed two convictions for misdemeanor child annoyance because the trial court properly instructed the jury that the defendant's conduct had to be motivated by an unnatural or abnormal sexual interest in the victim, but then, in another instruction, told the jury that "'[m]otive is not an element of the crime charged and need not be shown.'" (Maurer, supra, 32 Cal.App.4th at p. 1125.) Our case is distinguishable from Mauer because, here, the jurors convicted defendant of attempting a lewd act upon J.D. and heard closing arguments which stated that sexual motivation or intent is a requirement for the offense of child annoyance, thereby reinforcing the court's actual instruction on the crime of child annoyance.
DISPOSITION
The judgment is affirmed.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.