Opinion
H042395
03-09-2018
THE PEOPLE, Plaintiff and Respondent, v. MARIO AUGUSTO SAMAYOA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. B1153656)
A jury convicted defendant Mario Augusto Samayoa of various crimes for sexually abusing four girls over a nearly 20-year period. Defendant contends there was insufficient evidence to support his convictions on two of the charges because the victim's trial testimony was inconsistent. He contends his convictions on two other charges should be reversed because there was insufficient evidence regarding use of force, and because the jury should have been instructed with a specialized definition of the term "force." He asserts the trial court erred by not instructing the jury on several lesser included offenses. And he asks that the abstract of judgment be amended to remove duplicate entries of fines and fees. We find no prejudicial error and will affirm the judgment.
I. BACKGROUND
Defendant was charged with six counts of committing a lewd or lascivious act on a child under 14 (Pen. Code, § 288, subd. (a) (unspecified statutory references are to this code); counts 1, 2, 5, 8, 10, and 11); two counts of penetration with a foreign object by force (§ 289, subd. (a); counts 4 and 9); two counts of oral copulation by force (§ 288a, subd. (c)(2); counts 6 and 7); and one count of oral copulation by force of a child under 14 (§ 288a, subd. (c); count 3). The information alleged that the offenses were committed during the years 1989 through 2007.
The first victim testified at trial that defendant used to be her mother's boyfriend and he lived with them for several years. When she was around 10 years old, defendant touched her breast underneath her shirt while reading a book to her. When she was 11 or 12, he approached her from behind in the kitchen, groped her breasts and rubbed his penis against her buttocks. When she was 13, on more than one occasion, she woke up in the middle of the night to find defendant had removed her underwear and was touching her vagina. On two of those occasions, he digitally penetrated her. During her sophomore or junior year of high school, defendant put his tongue inside her vagina. She began to sleep with a baseball bat or tennis racquet nearby because she was scared of him.
The second victim is also a daughter of defendant's former girlfriend. When she was nine years old, defendant touched her vagina and digitally penetrated her while she was lying in bed. He would sometimes grope her breasts when hugging her. During a hike with defendant and her family when she was 11 years old, defendant grabbed her from behind, pulled her buttocks toward him and rubbed his penis against her.
The third victim is a niece of defendant's former girlfriend. When she was eight or nine years old, defendant digitally penetrated her vagina as he carried her upstairs to a bedroom. On one occasion, he grabbed her, held her still, pulled down her shorts and underwear, and put his mouth and tongue on her vagina. On another occasion he approached her while she was playing with toys, laid her down on a couch, and put his mouth on her vagina. He also lifted up her shirt and put his mouth on her breasts.
The fourth, most recent, victim is another niece of defendant's former girlfriend. During the time she was in second grade through the fourth grade, defendant touched her inappropriately. He touched her on the chest and buttocks on multiple occasions. Several years later, she reported the conduct to a school counselor, who called the police.
A detective interviewed defendant and confronted him with the allegations made by the victims. Defendant mostly denied the accusations, saying he never touched any of the girls inappropriately. But later in the interview, when the detective asked if he had ever touched any of the girls' private parts, defendant responded, "I probably did, yeah, I probably did."
Defendant testified at trial and denied molesting the girls. He said that his girlfriend became upset with him and moved out, along with the children, when she discovered he was dating another woman. He explained that when he admitted to police that he touched the girls, he was talking about physically disciplining them or inadvertent touching while playing with them. Several of the victims' family members who also lived in the house during the relevant time period testified that they never saw defendant behave inappropriately.
The jury convicted defendant of five counts of a lewd or lascivious act on a child (§ 288, subd. (a); counts 1, 2, 5, 10, and 11); one count of oral copulation by force (§ 288, subd. (c)(2); count 7); and one count of penetration with a foreign object by force (§ 289, subd. (a); count 9). The jury also found true as to each count a sentencing enhancement that the crimes were committed against multiple victims (§ 667.61, subd. (b)). The trial court sentenced him to 14 years in prison with a consecutive term of 45 years to life.
II. DISCUSSION
A. EVIDENCE SUPPORTING THE CONVICTIONS FOR LEWD OR LASCIVIOUS ACTS IN COUNTS 1 AND 2
Defendant contends there was insufficient evidence to convict him of committing lewd or lascivious acts against the fourth victim (§ 288, subd. (a); counts 1 and 2). He argues that the victim's trial testimony, when considered with her statements to police and her preliminary hearing testimony, is contradictory and therefore insufficient to support the verdicts.
"To determine the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible and of solid value, from which a rational trier of fact could find that the elements of the crime were established beyond a reasonable doubt." (People v. Tripp (2007) 151 Cal.App.4th 951, 955.) "It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact." (Ibid.)
A conviction for violating section 288, subdivision (a) requires proof that the defendant touched a child for purposes of sexual gratification. (People v. Martinez (1995) 11 Cal.4th 434, 444.) The victim's testimony on direct examination described acts sufficient to support the two counts alleged to have been committed against her: she testified that defendant touched her "in an inappropriate way," and that he touched her in the chest area with his hands when she was seven, as well as another time in the fourth grade. She also said that on more than one occasion, defendant grabbed her "butt" over her clothes. The touching made her feel uncomfortable. She testified she had no doubt in her mind that the touching of her chest and buttocks occurred, and that she was not making any of it up. We acknowledge the significant inconsistencies elicited by defense counsel on cross-examination: The victim's trial testimony was impeached by her testimony from the preliminary hearing, where she testified that defendant had touched her "near," but not on, her chest. She also admitted telling police that defendant never touched her below the waist, and never "cross[ed] that line," meaning he never engaged in any sexualized touching. She agreed that her trial testimony regarding the touching of her chest was based on "faulty memory." She conceded that she did not have specific memories of defendant touching her below the waist, and while it probably happened, it could have been accidental.
Near the end of her testimony, she explained that she did not feel comfortable testifying and regretted reporting defendant's conduct because it was "just something [she] left behind," and once she left something behind she did not want to go back. A social worker with expertise in Child Sexual Abuse Accommodation Syndrome testified on behalf of the prosecution that children who are abused may not remember all the details until later, and it is not uncommon for abused children to later recant their initial accusation. Reviewing the entire record in the light most favorable to the verdicts, we conclude there was sufficient evidence to support the convictions. A rational jury could have decided that the inconsistencies in the victim's testimony were due to her discomfort with the proceedings and desire to leave the matter in the past, or a manifestation of Child Sexual Abuse Accommodation Syndrome, not because she was lying when she testified on direct examination that defendant inappropriately touched her on the chest and buttocks. Great deference is afforded to the jury's determination of witness credibility, and for good reason—the jury was able to observe the witness's demeanor and hear the tone of her voice, and was therefore in a much better position than we are to assess her truthfulness. Inconsistent testimony can be sufficient to support a conviction, as long as it presents a "plausible account" of the circumstances of the crime. (See People v. Lewis (2001) 26 Cal.4th 334, 357 [Testimony from a mentally impaired eyewitness that "consisted of inconsistencies, incoherent responses, and possible hallucinations, delusions and confabulations" was sufficient to support conviction because it presented an overall plausible account of the crime.].)
Defendant relies primarily on In re Eugene M. (1976) 55 Cal.App.3d 650 and People v. Casillas (1943) 60 Cal.App.2d 785, but both cases are distinguishable. In Eugene M., the only evidence of guilt was a previous unsworn statement the witness recanted when under oath at trial. Here, the victim's statement that defendant touched her chest and buttocks was testimony given under oath, and she never unequivocally recanted it. Further, the Eugene M. court found the recanted statement insufficient because the circumstances suggested its "inherent untrustworthiness"—the police threated to incarcerate the witness unless he made the statement, and he testified at trial that he gave the statement only to satisfy the police. (Eugene M., supra, 55 Cal.App.3d at p. 657.) No such circumstances suggesting inherent unreliability are present here.
In Casillas, a rape victim testified on direct examination that her father committed the crime. On cross examination, she recanted and said her father never had intercourse with her, and the only reason she said he did was to protect a boy who got her pregnant. (Casillas, supra, 60 Cal.App.2d at p. 791.) Then, on redirect examination, she admitted her father did rape her, and she made up the story about the boy to protect her father. (Ibid.) Finally, on re-cross examination, she again claimed her father never had intercourse with her. (Id. at p. 793.) The appellate court found the victim's testimony "so lacking in substantiality as to truth or credibility that it falls far short of that quantum of verity, reasonableness and substantiality required by law in criminal cases," and therefore reversed the defendant's conviction. (Id. at p. 794.) The situation in this case, where the victim gave varying accounts of what was done to her, is plainly different than the serial recantations in Casillas. And we do not find the reasoning in Casillas persuasive in any event, as it is not adequately deferential to the credibility determination made by the trier of fact (in that case, the trial judge), dismissing the trial court's credibility determination as merely the "personal opinion," of the judge. (See Id. at p. 793 ["It is at once apparent that in the personal opinion of the trial judge, the prosecutrix told the truth only in that part of her testimony wherein she accused her father of the horrible crimes charged against him. But causes cannot be legally decided upon personal opinions of those charged with that responsibility, and legal decisions must be made upon a judicial determination based upon legal evidence and recognized rules of law."].) Contrary to the view expressed in Casillas, when the trial court sits as the trier of fact, the judge's opinion about which of two conflicting accounts from a witness is true cannot be second-guessed on appeal. (People v. Jones (1990) 51 Cal.3d 294, 314 [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 on which that determination depends."].)
Deferring to the jury's decision about which testimony to believe, as we must, we find sufficient evidence to support the convictions on counts 1 and 2, even considering the contradictions in the victim's testimony.
B. EVIDENCE OF FORCE TO SUPPORT THE CONVICTIONS FOR FORCIBLE ORAL COPULATION AND FORCIBLE PENETRATION
Defendant contends that there was insufficient evidence to convict him of oral copulation by force (§ 288a, subd. (c)(2); count 7) and penetration with a foreign object by force (§ 289, subd. (a); count 9). The basis for his contention is that at the time he committed those offenses (between 1999 and 2001 for count 7, and between 1990 and 1991 for count 9) the term "force" was defined differently under the law than it is now, and the evidence at trial did not establish a use of force sufficient to convict him under the former definition.
Before the California Supreme Court's decision in People v. Griffin (2004) 33 Cal.4th 1015, a number of cases held that the word "force" as used in statutes prohibiting sexual abuse of a child by force, required proof of force "substantially different from or greater than that necessary to accomplish the act itself." (People v. Kusumoto (1985) 169 Cal.App.3d 487, 494; see also People v. Senior (1992) 3 Cal.App.4th 765, 774.) In Griffin, the Supreme Court decided that the word "force" as used in the statute prohibiting forcible rape (§ 261, subd. (a)(2)) was not intended by the Legislature to have any specialized meaning, but rather has a meaning consistent with common usage. (Griffin, supra, 33 Cal.4th at p. 1024.) After Griffin, courts found it necessary to reassess decisions that assigned a specialized meaning to force. (People v. Guido (2005) 125 Cal.App.4th 566, 575.) Post-Griffin decisions hold that "force" as used in the statute prohibiting forcible oral copulation has no specialized meaning (Id. at p. 576), and that "force" as used in statutes prohibiting forcible sexual penetration simply means "force sufficient to overcome the victim's will." (In re Asencio (2008) 166 Cal.App.4th 1195, 1205.)
Defendant argues he is entitled to the specialized definition of force (substantially different from or greater than that necessary to accomplish the act itself) because that was the definition in use when his crimes were committed, and applying the more general definition of force that is currently used violates his right to due process of law. (See People v. Blakely (2000) 23 Cal.4th 82, 91 [" '[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates in the same manner as an ex post facto law.' [Citations.] Courts violate constitutional due process guarantees (U.S. Const., 5th and 14th Amends.; Cal. Const., art. I, § 7) when they impose unexpected criminal penalties by construing existing laws in a manner that the accused could not have foreseen at the time of the alleged criminal conduct."].) The Attorney General counters that the more general definition of force is simply a foreseeable judicial clarification of the statute, and therefore it does not violate due process to apply it here.
We need not reach the due process issue. Even assuming the former definition of force should apply to counts 7 and 9, there is still sufficient evidence to convict defendant of those charges. Indeed, cases employing the earlier, specialized definition—force that is "substantially different from or substantially greater than necessary" to accomplish the sexual act—have found sufficient evidence where the force exercised was relatively minimal. (See People v. Cicero (1984) 157 Cal.App.3d 465, 488, disapproved on another ground by People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12 [picking up victim and carrying her constituted force]; People v. Babcock (1993) 14 Cal.App.4th 383, 388 [grabbing victim's hands was sufficient force]; see also People v. Elam (2001) 91 Cal.App.4th 298, 306 [The specialized definition of force "do[es] not differ in any significant degree" from the common meaning of the term.].) The victim in count 7 (the forcible oral copulation charge), testified that defendant grabbed her, held her still, pulled down her shorts, and then orally copulated her. The victim in count 9 (the forcible penetration charge), testified that she tried to push defendant's hand away while he was digitally penetrating her, giving rise to the inference that defendant had to exert force greater than that necessary to perform the act without resistance. There is sufficient evidence of force under either definition of the term.
Further, as the Attorney General points out, convictions for forcible oral copulation or forcible penetration can also be based on the acts having been accomplished by duress. (People v. Leal (2004) 33 Cal.4th 999, 1004.) Duress is defined as " 'a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.' " (Ibid., citing People v. Pitmon (1985) 170 Cal.App.3d 38, 50.) Relevant factors in evaluating the presence of duress include the age of the victim, the victim's relationship to the defendant, disparity in size between the defendant and the victim, and physically controlling the victim after any attempts to resist. (People v. Cochran (2002) 103 Cal.App.4th 8, 14.) In this case, the victims were young (between the ages of 8 and 9). Defendant admitted being a father figure to the victims and disciplining them during the time he lived with them. Defendant was also much larger and exercised physical control over the victims to accomplish the abuse, and both victims testified that they feared him. Defendant cites to People v. Espinoza (2002) 95 Cal.App.4th 1287, 1320, in which a different panel of this court found insufficient evidence of duress, and argues the circumstances here closely resemble those in Espinoza. But in Espinoza, the defendant "did not grab, restrain, or corner" the victim during the incident, nor did the victim physically resist. (Ibid.) Here, the incidents included grabbing, restraining, and overcoming physical resistance, so Espinoza is readily distinguishable.
Given defendant's role as an authority figure, the disparity in age and size, and the physical control he exerted during the abuse, there was sufficient evidence to support a finding of duress—that the victims acquiesced to defendant's actions due to an implied threat of force, hardship, or retribution. This evidence of duress is enough to support defendant's convictions for counts 7 and 9, regardless of which definition of force is used.
C. INSTRUCTING ON THE DEFINITION OF FORCE
As we have discussed, defendant contends that the trial court erred by not instructing the jury with the specialized definition of force in connection with the forcible oral copulation and forcible penetration charges (counts 7 and 9). He maintains the jury should have been instructed that to convict him of those charges the prosecution had to prove he used force substantially different from or greater than that necessary to accomplish the act itself.
Defendant did not object to any jury instructions at trial and even expressly agreed that the instructions given were correct. The Attorney General therefore urges that we find the instructional issue forfeited. But the trial court has a sua sponte duty to properly instruct the jury on the essential elements of a charged offense, and counsel's accession to an erroneous instruction does not constitute invited error. (People v. Mason (2013) 218 Cal.App.4th 818, 824.) Forfeiture will only be found where " 'counsel expresses a deliberate tactical purpose in resisting or acceding to the complained-of instruction.' " (Ibid.) Since use of force is an element of the offenses in question, and trial counsel did not express any tactical reason for conceding the instructions were correct, we will address the instructional issue on its merits. In doing so, we independently review the instructions to determine whether the trial court fully and fairly instructed on the applicable law. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088-1089.)
It has been settled for over a decade that the term "force" as used in the statutes prohibiting forcible oral copulation and forcible penetration has no specialized legal meaning and the trial court is not required to define it for the jury. (People v. Guido, supra, 125 Cal.App.4th at p. 576.) But defendant's contention, again based on due process principles, is that the law recognized a specialized legal meaning for the term force at the time his offenses were committed, and he was entitled to an instruction with that definition. As we have explained, even assuming instructional error, the error was harmless.
" '[A]n erroneous instruction that omits an element of an offense is subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18. [citation].' " (People v. Mason, supra, 218 Cal.App.4th at p. 825.) " 'In such cases, "the harmless-error inquiry [asks whether it is] clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error[.]" ' " (Ibid.) The victims of the offenses charged in counts 7 and 9 provided detailed accounts about defendant using force to accomplish oral copulation and digital penetration. That evidence was sufficient to establish force even under the specialized definition for the term. And, importantly, defendant did not present evidence that the sexual acts were not accomplished by force; rather, his defense was that the events the victims described never happened. During closing argument defense counsel urged the jury not to believe the accusations, but there was no competing evidence presented about the character of the acts themselves. On this record, we find no indication the jury would have reached a different result had the trial court instructed with the specialized definition of force. (See People v. Pitmon, supra, 170 Cal.App.3d at pp. 53-54 [Failure to instruct with the specialized definition of force was harmless error because "[g]iven the circumstances of the situation, the age of [the victims], and the amount of force used during the series of sex offenses, the jury would not have reached a different conclusion[.]"].)
We note defendant does not argue that the jury was improperly instructed regarding the element of duress, and as we have discussed, the evidence of duress was sufficient to support the convictions. Therefore, any error in failing to instruct with a specialized definition of force would be harmless beyond a reasonable doubt.
D. INSTRUCTING ON LESSER INCLUDED OFFENSES
Defendant contends that the trial court erred by not instructing the jury on three lesser included offenses to forcible oral copulation (§ 288a, subd. (c)(2); count 7): attempted forcible oral copulation (§§ 664, 288a, subd. (c)(2)); assault with intent to commit oral copulation (§ 220, subd. (a)(1); and oral copulation with a minor (§ 288a, subd. (b)(1)). A trial court is required, even without a request, to instruct on all lesser included offenses when the evidence raises a question about whether all the elements of the charged offense are present. (People v. Breverman (1998) 19 Cal.4th 142, 155.) "[T]he rule seeks the most accurate possible judgment by 'ensur[ing] that the jury will consider the full range of possible verdicts' included in the charge, regardless of the parties' wishes or tactics." (Ibid.) An instruction on a lesser included offense is required only when there is evidence the defendant is guilty of that lesser offense that is "substantial enough to merit consideration by the jury," meaning evidence from which a reasonable jury could conclude that the lesser offense, but not the greater, was committed. (Id. at p. 162.)
Attempted forcible oral copulation is a lesser included offense to forcible oral copulation (count 7). But the trial court correctly did not instruct the jury on attempted forcible oral copulation because there was no substantial evidence from which to conclude that defendant attempted, but did not complete, an act of oral copulation. The victim testified that defendant grabbed her, held her still, pulled her shorts down, and put his mouth on her vagina. Defendant denied engaging in any such conduct. Given the victim's description of a completed act of oral copulation, and defendant's blanket denial, there was no evidence from which a jury could conclude that an attempt occurred.
Similarly, while assault with intent to commit oral copulation is a lesser included offense to the charge in count 7, the trial court correctly did not instruct on it because there was no evidence to show that offense was committed. Assault with intent to commit oral copulation requires an unsuccessful attempt to engage in oral copulation. (See, e.g., People v. Holt (1997) 15 Cal.4th 619, 674 ["An assault with intent to commit rape is a form of attempted rape. [Citation.] There was no evidence that defendant intended to commit rape but was unsuccessful in the attempt."].) The jury had before it evidence that defendant held the victim down and orally copulated her, and defendant's testimony that the incident never happened. There was no evidence of an unsuccessful attempt at forcible oral copulation.
We similarly find no error in not instructing on the offense of nonforcible oral copulation with a minor because it is not a lesser included offense to forcible oral copulation. An offense is a lesser included offense if either the statutory elements of the greater offense or the facts alleged in the accusatory pleading include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. (People v. Smith (2013) 57 Cal.4th 232, 240.) The accusatory pleading in this case alleged in count 7 that defendant violated Penal Code section 288a, subdivision (c)(2) by accomplishing an act of oral copulation against the victim's will, by force, violence, duress, menace, or fear. The jury was instructed that the elements of that offense are (1) the commission of an act of oral copulation; (2) without consent; (3) accomplished by force, violence, duress, menace, or fear. None of the elements of the offense nor any the allegations of the accusatory pleading regarding how the offense was committed relate to the age of the victim. But nonforcible oral copulation of a minor requires that the victim be under 18 years of age. (§ 288a, subd. (b)(1).) It has an additional element—that the victim is a minor—not required for the offense of forcible oral copulation. It is therefore not a lesser included offense to forcible oral copulation. Defendant argues that the accusatory pleading does allege the victim was a minor, since the victim's age is stated elsewhere in the information, in connection with another count. While that is true, it is because her age is required to prove a separate charge: committing a lewd and lascivious act on a child under 14 (count 8). The charge at issue—forcible oral copulation—has no element relating to the victim's age. Since the greater offense does not include all the elements of the lesser, the trial court was not required to instruct sua sponte on nonforcible oral copulation with a minor as a lesser included offense.
E. NO CORRECTION TO THE ABSTRACT OF JUDGMENT
Defendant contends that the abstract of judgment should be corrected to conform to the trial court's oral pronouncement at sentencing because the amounts imposed for certain fines and fees, and for a victim restitution order, are listed in multiple places and are reflected on both the abstract of judgment for the determinate sentence and the abstract of judgment for the indeterminate sentence. Defendant does not argue that any of the amounts is incorrect, only that the manner in which they were recorded might cause confusion regarding the total fines and fees imposed. We are not persuaded there is an error that requires correction. We may order an entry in the abstract of judgment stricken when it is inconsistent with the sentence pronounced by the court (People v. Rowland (1988) 206 Cal.App.3d 119, 123), but there is no such inconsistency here.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Premo, Acting P. J. /s/_________
Bamattre-Manoukian, J.