Opinion
H041494
02-01-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE SANCHEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F1345207)
Defendant Jose Sanchez was convicted by a jury of multiple sexual offenses against two of his daughters, both of whom were under the age of 14 at the time. He was sentenced to an aggregate term of 165 years to life in prison.
On appeal, Sanchez argues the trial court erred by: (1) admitting evidence of uncharged offenses as propensity evidence under Evidence Code section 1108; and (2) improperly instructing the jury on how to consider that propensity evidence. He further argues his sentence amounts to unconstitutional cruel and unusual punishment and his parole revocation fine must be stricken because an indeterminate life sentence is effectively a sentence of life without possibility of parole. Finally he contends that, to the extent he is deemed to have waived any of these arguments on appeal based on his trial counsel's failure to object below, his trial counsel rendered ineffective assistance.
The People did not raise waiver and, as we address Sanchez's arguments on the merits, we do not reach his claims of ineffective assistance of counsel.
We find no merit to any of Sanchez's arguments and will affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The charges
Sanchez was charged, in the third amended information, with two counts of lewd or lascivious conduct on a child under the age of 14 years (Pen. Code, § 288, subd. (a)); six counts of forcible lewd or lascivious conduct on a child under the age of 14 years (§ 288, subd. (b)(1)); seven counts of aggravated sexual assault of a child under the age of 14 years (§ 269); two counts of rape by force (§ 261, subd. (a)(2)); and one count of sexual penetration by force, fear, or threats (§ 289, subd. (a)(l)(A)). The information further alleged multiple victims for each count (§ 667.61, subds. (b) & (e)).
Unspecified statutory references are to the Penal Code.
B. The prosecution's case
1. Mariah Gonzales
Gonzales testified she had been dating Sanchez's son, who was not living with Sanchez at the time, for about four years. She knew that her boyfriend had three half-sisters—victim 1, victim 2 and the youngest half-sister—and she would see the girls when she and her boyfriend would visit Sanchez at his home once a week or so. During those visits, Gonzales was disturbed by how Sanchez would sometimes kiss victim 1 and victim 2 on the lips. On one occasion, she and her boyfriend were at the house and Sanchez was taking a shower. Victim 2 went into the bathroom to give him a towel and Gonzales thought that was "odd."
On December 27, 2012, Gonzales was at Sanchez's house and wanted to talk to the girls about deleting their Facebook account. Gonzales knew the victims would get in trouble with their parents for having one. She told victim 1 and 2 she knew they had a Facebook account and they should delete it. Victim 1 seemed nervous and started crying. Gonzales asked if she wanted her half-brother to be there, and victim 1 said she did. Gonzales went outside and got her boyfriend.
They sat on the bed and victim 1 said that when Sanchez got back from a trip to Nicaragua that summer, he brought back some lotion. He had victim 1 go into his room, take her clothes off and lie on a towel. He massaged her "down there with lotion, and it really hurt." Gonzales' boyfriend became upset, punched the door and ran outside. Victims 1 and 2 were both crying hysterically at his point. Gonzales asked victim 2 if this had happened to her as well, and she said it had.
On cross-examination, Gonzales clarified that victim 1 said Sanchez was "massaging her vagina."
After calling her parents for a ride, Gonzales took the victims back to their half-brother's mother's house.
Sanchez's ex-wife.
2. Adriana Doe
Sanchez was Adriana's step-father and he began living in the same house with her when she was 10 or 11. She said they lived in the same house for about five years, until she was 16. During that time, Sanchez touched her in a way she believed was inappropriate on more than one occasion.
The first incident she remembered was when they went to take family pictures together at a store. The photographer asked them to squeeze together more closely and Sanchez grabbed her upper thigh to pull her close, which made her uncomfortable. He did not hold on for long.
The next incident she remembered, she was perhaps 14 or 15 and was in her room after bedtime with the lights off. She was not yet asleep and her mom was in the living room. Adriana heard Sanchez come home from work and she heard her mom ask him to carry Adriana's brother to bed, as he had fallen asleep in the living room. Adriana and her brother slept in bunk beds in the same room, so Sanchez came into the room carrying her brother. He placed her brother, still asleep, on the bottom bunk next to her. As he did so, he grabbed and squeezed Adriana's breast. She moved to the side, pretending to be asleep, and saw him pull his hand back and freeze for a second. He then left the room.
Adriana said she was 10 years older than her brother.
On another occasion when she was 15 or 16, Adriana was home watching television in the morning. Neither her brother nor her mother was home at the time. Sanchez asked her to give him a massage. He lay down on the floor and Adriana sat next to him and started massaging his back. Sanchez told her, " 'No, let me show you, not like that.' " Adriana said she knew how to do it, but Sanchez insisted that she lie down so he could demonstrate.
Adriana lay down and Sanchez began massaging her back. She said, " 'Okay, I know how to do it. I got it.' " She switched positions with Sanchez and began massaging his back again. Sanchez again told her she was not doing it right and made her lie down on her stomach again. This time, Sanchez started massaging her back underneath her shirt. He massaged her back, upper shoulders, then her sides, moving from near her stomach to underneath her arms. Adriana said he came close enough to her breasts to make her uncomfortable, but did not touch them.
Sanchez massaged her lower back, again getting close to, but not touching, her buttocks. He also massaged her legs and inside her thighs, over her clothing, coming close to her crotch, but not touching it. Adriana was "really scared" and felt that the massage was becoming sexual. At that point, the phone rang and Sanchez answered it. It was Adriana's aunt, who asked Adriana if she wanted to go shopping with her. Adriana said she did and hung up. She told Sanchez she needed to get ready to go with her aunt, and Sanchez became angry, making a fist and punching his other hand in frustration.
Adriana told her best friend what happened and later told her older brother's girlfriend, but did not tell her mother. She was afraid her mother would confront Sanchez, who was "very aggressive" and Adriana was afraid for her mother.
3. Victim 2
Victim 2 was 15 years old at the time of trial. Victim 2 was living with Sanchez (her father) in the summer of 2012, along with her mother, her grandfather and her two sisters. She and her sisters shared one of the three bedrooms in the house.
Before Sanchez went on a trip to Nicaragua that summer, he had touched her one time over her clothing as they sat on the couch together. They were in the living room and Sanchez told victim 2 to come sit with him. He put his hand on her jeans and rubbed her vagina through her clothing.
Sanchez also would make victim 2 kiss him on the mouth all the time, such as when he came home from work. Sometimes those were "regular" kisses, but sometimes "he would put his tongue in my mouth."
The day after he returned from Nicaragua in the summer of 2012, Sanchez gave victim 2 a massage in his room. He called her into the bedroom and, when she came in, victim 2 saw that Sanchez had laid a towel on the floor by the door. Sanchez had a bag "full of different types of lotions and he asked [victim 2] to pick one out." She did not want to be in there, but was afraid to leave or to refuse him.
Sanchez told her to take off her clothes, so victim 2 stripped to her underwear and socks. He had her lie down on her stomach and started rubbing her shoulders. He moved his hands down her sides, skipping her lower back and began massaging her legs and feet. Sanchez then told victim 2 to open her legs. She complied and he began "rubbing my inner thighs, sometimes he would like get really close to my [vagina]."
Sanchez then moved back to her legs and feet, but "[e]ventually, he tells me to pull down my underwear." Victim 2 did not want to, but Sanchez pulled them down to her ankles though she tried to keep them above her knees. He rubbed her buttocks and inner thighs, and at one point, told her to lift her waist off the floor. He cupped his hand, put it between her legs and rubbed her vagina. After being shown her testimony from the preliminary examination, victim 2 recalled that Sanchez rubbed his fingers between her outer labia. He did so for "awhile," but victim 2 jumped a little bit when she felt a sort of "pinch" inside her vagina. Sanchez kept rubbing for a short time then told her to turn over.
After she turned over, Sanchez began rubbing her shoulders and around her breasts. She could not recall if Sanchez ever touched her nipples during this massage. He rubbed her stomach, and moved to her inner thighs and vagina, again putting his fingers inside her outer labia. As he rubbed her vagina, Sanchez looked at her and asked if she "was gonna [come]." He rubbed her legs and feet before finally stopping and telling her to get dressed.
Victim 2 testified that Sanchez unhooked her bra earlier while she was lying on her stomach and, despite her trying to keep her arms pressed against the floor, was able to work the straps past her elbows. When she turned onto her back, he pulled her bra away completely.
The trial transcript states "couple," but we presume that is a mistranscription, since the prosecutor later asks victim 2 if Sanchez said "anything else other than, 'Take off your clothes,' 'Lift your stomach' and, 'Are you going to come?' "
Victim 2 got dressed and went to the bathroom. She felt some pain inside her vagina. It did not hurt to walk but she felt "something" when she walked.
The following day, around 3:00 p.m., Sanchez tried to massage her again. Before he came home from work that day, Sanchez called victim 2 and told her to take a shower because he was going to give her another massage. Victim 2 did not want to, but she took a shower because she did not want Sanchez to yell at her or hit her for not doing as she was told.
Victim 2 was afraid of Sanchez as he "would yell at us a lot[,] . . . [and] hit us sometimes." Sanchez hit victim 2 "[a] couple of times . . . with the belt[,] . . . [or] with his hand."
When Sanchez got home, he told victim 2 to go into his bedroom. She did, and he closed the door behind her. The same towel was on the floor and Sanchez told victim 2 to pick out a lotion again. During this massage, Sanchez rubbed victim 2's breasts directly, rather than massaging around them. He also rubbed her vagina, with his fingers penetrating her outer labia. She did not recall that he said anything to her that day, though.
Sanchez massaged her "every day for almost a week." The massages were usually the same, but twice he tried to put his mouth on her vagina. She would bend her knee in order to prevent him from doing so and accidentally kneed him in the eye or by his nose once. Victim 2 believed that Sanchez still managed to put his mouth on her vagina once maybe.
On other occasions, Sanchez would come into the bathroom while victim 2 was taking a shower, open the curtain and tell her he was going to scrub her back for her with a sponge. She did not want him to do so, but victim 2 was afraid Sanchez would yell at her or hit her if she refused him. Sanchez would also take a small piece of soap and rub her vagina while she was in the shower. Sometimes she would open a drawer inside the bathroom, which would block the bathroom door from opening and keep him out. When she did so, Sanchez would yell at her since it prevented other people from using the only bathroom in the house.
4. Victim 1
Victim 1 was 16 years old at the time of trial. In the summer of 2012, she lived in a house along with her father (Sanchez), her mother and her sisters. She was afraid of her father before he began touching her inappropriately, because when he was angry with her or her sisters, he would hit them with his hand or a belt.
When she was 12 years old, she recalls that Sanchez touched her vagina through her clothing. He told her not to be scared, as he was "just showing me . . . what would happen when I grow up." Sanchez said he would teach her about sexuality because she was "going to start growing" now that she had turned 12.
A couple of days later, Sanchez touched her vagina through her clothing again, though he did not say anything to her at this time. This touching took place in Sanchez's room, and she described it as him placing two fingers on her vagina and moving them up and down. In each of the following incidents, Sanchez went progressively further.
The next time he touched her, victim 1 was again in his room, and Sanchez told her he "was going to take it a step further but not to be scared because he wouldn't hurt [her]." Sanchez put his hand inside her pants—but not inside her underwear—and touched her vagina.
The next incident, which occurred while victim 1 was still 12 years old, Sanchez unbuttoned victim 1's pants, put his hand inside her underwear and touched her vagina. He "moved his finger in a circular motion and asked [her] if it tickles."
After that, Sanchez touched her vagina and put his finger inside her outer labia. He rubbed for about 30 seconds, and told her that if it hurt, he would stop. Victim 1 told him it hurt and to stop. He stopped after another five seconds.
Victim 1 said that during each of the prior incidents, whether he touched her over or underneath her clothing, she told him to stop, but he always said "hold on and it wouldn't hurt."
The next time he touched her, Sanchez said he "was gonna put his finger more in. He was gonna put it in deeper than the last time." The time after that, Sanchez said he "gonna put his penis in, just the tip." Victim 1 was still 12 years old when he told her that.
Victim 1 was in Sanchez's bedroom and he unbuttoned and removed her jeans. He moved her underwear "to the side" and told her to lie down in the middle of the bed. Sanchez climbed on top of her and said "not to move or else it would hurt." Victim 1 moved and Sanchez got angry, telling her he would smack her if she moved again. She stopped moving. Sanchez pulled his penis out of his pants and said he was "gonna slowly put the tip in." As he did so, she said it hurt and he said, "just a little bit more." Sanchez was "going back and forth a little bit." His penis was not inside her vagina, but the tip was between her labia. He stopped soon after without inserting his penis any farther.
The next incidents did not take place until after she had turned 13. Sometime before Christmas that year, victim 1 was in Sanchez's bedroom and he told her she "was old enough for him to go—to do—go more, go further." This time, he inserted his penis further in, beyond her outer labia. This lasted about 90 seconds in all. Victim 1 told him "no" and started to cry. Sanchez got angry at her for crying so he stopped and told her to leave the room.
Victim 1 could not specifically recall the next time Sanchez touched her when she was 13, but it happened "a lot," "every day or every weekend when my mom would be at work." Once she turned 14, Sanchez started having intercourse with her and that continued after she turned 15.
In September 2012, Sanchez took a vacation to Nicaragua and when he returned, he brought massage oils with him. He began giving victim 1 massages with the oils for her muscles, as she and her sister (victim 2) would work out with Sanchez at the gym. The massages took place in Sanchez's room after he got home from work about 3:30 p.m. Sanchez would massage victim 1 first and tell victim 2 she would be next and that she should take a shower so she would be clean. Sanchez would tell their youngest sister to go do her homework in the living room.
Victim 1 said that she and victim 2 were never in the room together during these massages. Sanchez would have her remove her shirt and jeans but leave her bra and underwear on. He placed a green towel on the carpet and have victim 1 lie on her back. He would massage her normally at first but when he got to her legs he "put his hand in between like my thighs." He would also touch her breasts, through her bra. He would always massage her as she lay on her back, except for the final time. He had her turn onto her stomach and started rubbing her vagina. She asked what he was doing and he told her not to say anything. He rubbed her vagina for about five minutes and "put his finger in." He moved her underwear to the side and got on top of her. She tried to get up but he told her to stay down and then put his penis in her vagina. This lasted about 10 minutes.
Victim 1 said that, when this happened, Sanchez would claim it was accidental.
The last time Sanchez tried to touch her sexually was around Christmas 2012. Sanchez called her into his room and told her to close and lock the door. Victim 1 asked why, but he said to do it and "he doesn't want to ask [her] twice." She got scared and did as she was told. He told her to take off her clothes, but victim 1's youngest sister kept trying to come inside the room. Sanchez got irritated and told victim 1 to get dressed and see what the girl wanted. Victim 1 left the room for about 10 minutes and Sanchez came out of his room angry that she was gone so long.
Victim 1 said that when she was 14 or 15 years old, Sanchez came into the bathroom three different days as she was showering. He would put soap on a scrub brush and scrub her back, but would then scrub her rear end and have her spread her legs so he could scrub her vagina as well. One time she refused to spread her legs, and Sanchez hit her so she complied after that.
Victim 1 said she was afraid of Sanchez, and he told her if she said anything, her mother would get deported. Sanchez also told her he would only be put in jail for a few months if she reported him, and when he got out, he would kill "all of us."
Victim 1 placed two pretext calls to Sanchez, recordings of which were played for the jury. In those calls, he stated on more than one occasion that he would go to jail for "a year or 6 months" if victim 2 told police he touched her sexually. He also said he would not be able to "fix [the victims'] mother's papers." Sanchez stated that when he massaged victim 2 she would "have no cover," but had her "chonies [underwear] on." Sanchez did deny touching victim 2 in a sexual manner, however. When victim 1 said "I know how we used to do it," Sanchez replied, "Don't be saying that over the phone." When she asked if what victim 2 was telling her happened was true, Sanchez responded, "Course [sic] it's not," but continued "you know how I play with you guys and all that . . . . And yeah, it is true, I mean, what I do when I play, I do this and that, you know, but you guys (inaudible) you know how it is, and how to keep fighting and all that."
C. Defense case
1. Sanchez
Sanchez testified on his own behalf. On direct examination, he denied touching Adriana, victim 1 or victim 2 with any sexual intent at any time. He recalled that the family may have gone to K-Mart to take a family photograph, but he did not remember grabbing Adriana by the leg.
Sanchez said that when he and Adriana were living in the same house, he was working full-time at Kentucky Fried Chicken. It was usually around 11:00 p.m. when he arrived home, at which point Adriana was in bed asleep. His wife would be watching television and their young son, Brian, would typically be asleep on the couch. Sanchez would then carry Brian into the room he shared with Adriana. He would place Brian in the lower bunk with Adriana, next to the wall, and would have to reach across Adriana to get him there. One time he was doing this and remembered that he "sort of stumbled" and "kind of fell over her . . . legs or feet." He never reached out and touched her breast though, accidentally or on purpose.
Sanchez said he asked Adriana on one occasion to massage his back or shoulder because it was painful to him. The massage took place in the living room and Brian was in the same room watching television. He lay down on the carpet while Adriana started massaging him. Both of them were fully clothed, though Adriana was wearing her pajamas. She was not applying enough pressure though so he had her switch places with him and he demonstrated how she should press harder. They swapped positions again.
Adriana did not follow his instructions, and he told her to lie down again so he could show her how it should be done. He pressed hard on her back and lower back with his thumbs. He is not sure if they switched positions so Adriana could try again, but the phone rang and interrupted them. It was Adriana's aunt who came by to pick Adriana up to go shopping a few minutes later. Sanchez denied that he ever touched Adriana under her clothes or touched her in a sexual manner. He also denied that he became angry that Adriana's aunt interrupted his massage.
As to the massage oils he brought back from Nicaragua, he brought them for his wife who had back problems. He got the oils from his nephew's wife, who is a professional masseuse. After he returned, he used the oils while massaging his wife's back about once a week through December 2012. They also occasionally hired a masseuse to come to the house for his wife.
In November 2012, when the masseuse was at the house, victim 2 complained of shoulder pain from working out at the gym, but she did not want the woman to massage her. So on four consecutive days, Sanchez massaged her, with her consent. Both of victim 2's sisters were in the house when these massages took place and the door to the room was never closed.
Because the professional masseuse recommended taking a shower before the massage to warm the body, Sanchez told victim 2 to take a shower. He had victim 2 pick the oil she liked and had her strip to her bra and underpants. She lay on her stomach and Sanchez unhooked her bra as he massaged her back because it was in the way. He also massaged her hands, the backs of her legs and her feet, but never asked her to spread her legs or rubbed her buttocks or genitals. He never pulled down her underwear or asked her to do so and did not have her lie on her back at any time. He never touched her breasts, put a finger in her vagina, or asked her if she was "going to come." He did not threaten her or tell her not to tell anyone about something he did.
Victim 1 saw victim 2 getting massages, and she asked Sanchez to massage her too, so he agreed. He massaged her in the same way for the same four days. He never touched her buttocks, breasts or vagina and never touched her with his penis.
When asked about the victims' testimony about what occurred in the shower, Sanchez said that victim 2 resisted showering regularly and he was concerned about her hygiene. Once the place where she got her hair cut called him and said she had lice, which Sanchez believed was because she did not shower often enough. He told her to shower daily, but victim 1 told him victim 2 just turned on the water without getting in the shower.
Sanchez started going into the bathroom and, while standing outside the shower curtain, scrubbed victim 2's back and legs with a cloth "ball." Sanchez was always clothed and he left the bathroom door open when this occurred. He did not look behind the shower curtain and never touched victim 2's vagina when he scrubbed her back.
Again, victim 1 said she wanted Sanchez to wash her back, too, so Sanchez agreed to do so. He did this three or four times, in the same manner as with victim 2, reaching around the shower curtain. He never told her to spread her legs, never hit her for not doing so and never touched her vagina.
Sanchez admitted kissing victim 2 in a normal fatherly way, but denied ever putting his tongue in her mouth.
Sanchez did yell at victims 1 and 2 when necessary, and spanked them on occasion, sometimes with a belt, as punishment for such things as lying, taking money from his wife's purse and getting bad grades. Both girls were not doing their homework and were therefore not doing well in school, and they both lied often. Sanchez threatened several times to send the girls to "boot camp." He also threatened to send them to Mexico and Nicaragua and spoke about moving the entire family to Miami.
2. Other family members
Two other family members, Elizabeth Gonzales, the ex-wife of Sanchez's cousin and Norma Sanchez, his older sister, each testified for the defense. They both testified to having had regular contact with victim 1 and 2 since they were young and found that both girls frequently lied. Sanchez, however, was always truthful in their experience and he was not the type of person who would molest a child.
Norma testified she has known the two girls since they were born.
D. Verdict and sentencing
After deliberating for several days, the jury found Sanchez guilty of two counts of lewd or lascivious conduct on a child under the age of 14 years (§ 288, subd. (a)), five counts of aggravated sexual assault of a child under the age of 14 years (§ 269), six counts of forcible lewd or lascivious conduct on a child under the age of 14 years (§ 288, subd. (b)(1)), and one count of sexual penetration by force, fear, or threats (§ 289, subd. (a)(2)). The jury was unable to reach a verdict on the four remaining counts, specifically counts 7, 8, 9 and 18. The court declared a mistrial on those counts and they were dismissed.
Sanchez was sentenced to an aggregate term of 165 years to life in prison, consisting of consecutive 15 years to life sentences on 11 of the 14 counts. The trial court imposed, but stayed pursuant to section 654, 15 years to life sentences on the remaining counts (counts 13, 15 & 17). The court awarded total custody credits of 730 days. Sanchez was ordered to pay victim restitution in the amount $12,219, plus $10,000 in general restitution.
The 11 counts were, as follows: count 1, 2, 3, 4, 5, 6, 10, 11, 12, 14, and 16.
II. DISCUSSION
A. Admission of Adriana's testimony
Sanchez argues the trial court improperly admitted his stepdaughter Adriana's testimony regarding three instances where Sanchez touched her in ways she considered sexual. The trial court allowed the testimony pursuant to Evidence Code section 1108.
1. Evidence Code section 1108 is constitutional
Sanchez first argues that Evidence Code section 1108 violates constitutional due process principles, though he acknowledges that the California Supreme Court rejected this contention in People v. Falsetta (1999) 21 Cal.4th 903, 907 (Falsetta). He therefore raises the point simply to preserve it for review. As we are bound by the decision in Falsetta, we reject the argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
2. No abuse of discretion in allowing Adriana to testify
Sanchez next argues the trial court abused its discretion in permitting Adriana to testify because the evidence she proffered was more prejudicial than probative and should have been excluded under Evidence Code section 352. We disagree.
Evidence Code section 1108, subdivision (a), provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101 [generally prohibiting character evidence such as past conduct to prove that defendant committed the offense in question], if the evidence is not inadmissible pursuant to Section 352." Under Evidence Code section 352, "[t]he 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."
Evidence Code section 1108 creates an exception in sex-offense cases to the prohibition in Evidence Code section 1101 against the use of character evidence to prove the defendant has a predisposition or propensity to commit the types of crime with which he is charged. (Falsetta, supra, 21 Cal.4th at p. 911.) "By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations." (Id. at p. 915.) Consequently, the statute permits the trier of fact to consider uncharged sexual offenses " ' "as evidence of the defendant's disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense." ' " (Id. at p. 912.) "With the enactment of section 1108, the Legislature 'declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the [complaining] witness.' " (People v. Soto (1998) 64 Cal.App.4th 966, 983.)
Indeed, "the reason for excluding evidence of prior sexual offenses in such cases is not because that evidence lacks probative value; rather, it is because ' "it has too much." ' " (People v. Branch (2001) 91 Cal.App.4th 274, 283 (Branch).) "By reason of [Evidence Code] section 1108, trial courts may no longer deem 'propensity' evidence unduly prejudicial per se, but must engage in a careful weighing process under [Evidence Code] section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its 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. [Citations.] [¶] . . . [T]he probative value of 'other crimes' evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense." (Falsetta, supra, 21 Cal.4th at pp. 916-917.)
Here, Sanchez was charged with molesting and sexually assaulting his daughters and, given that his defense was that his daughters were lying about what happened, Adriana's testimony about what Sanchez had done with her, was probative in resolving this "credibility contest." (Falsetta, supra, 21 Cal.4th at p. 911.)
Adriana testified that when she was 14 years old, Sanchez asked her to give him a massage. When she did not perform the massage to his liking, he demonstrated on her how it should be done, and she described his massage as disturbing and sexual in nature. She also described an incident where Sanchez grabbed her upper thigh during a family photo shoot, and another where he touched her breast when he laid her sleeping younger brother next to her in her bed late one evening. This testimony was probative of Sanchez's propensity to inappropriately touch young girls with whom he had a family relationship. The massage incident Adriana described was very similar to the massaging incidents which the two victims described in their testimony.
Sanchez seeks to undercut the value of Adriana's testimony, characterizing the events as "materially dissimilar" from his later conduct with victims 1 and 2, because "Adriana testified she was 14 years old, whereas [victim 1] and [victim 2] were each considerably younger—12 and 13 years old." Even if this one or two year discrepancy could reasonably be called "considerable," the fact remains that Sanchez continued molesting the victims after they turned 14. The victims' ages were sufficiently close to—and even overlapped with—Adriana's age when Sanchez gave her a massage and the similarity of the massage incidents described by all three girls is probative of Sanchez having a common scheme or plan.
Sanchez also argues that the incidents described by Adriana were too "remote" in time to have any probative value. Although the remoteness of a prior offense is an appropriate factor in weighing probative value against potential prejudice, there is no bright-line rule for determining when remoteness eliminates the probative value of a prior offense. (See, e.g., Branch, supra, 91 Cal.App.4th at p. 285 [30 years]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [20 years]; People v. Soto, supra, 64 Cal.App.4th at pp. 991-992 [more than 20 years]; but see People v. Harris (1998) 60 Cal.App.4th 727, 739 [prior crime remote—23 years—but also inflammatory, irrelevant, likely to confuse and distract the jury].) The 10-year gap involved in this case is not so remote as to deprive Adriana's testimony of probative value.
Furthermore, the remoteness of a prior incident is only one part of the calculus the trial court must use in deciding the admissibility of evidence. The "similarities between the prior and the charged offenses" have been held to "balance out the remoteness of the prior offenses." (Branch, supra, 91 Cal.App.4th at p. 285.) The "defendant's age at the time the previous crime was committed" can also be relevant in considering the question of remoteness in that an offense committed by a minor some number of years prior to the charged offense may be given less weight if the offense had been committed by an adult, such as Sanchez. (People v. Burns (1987) 189 Cal.App.3d 734, 738.)
Sanchez also claims that Adriana's testimony "lack[ed] . . . specifics" especially regarding the dates the incidents supposedly took place, and his ability to defend himself against the claims she made was improperly limited. To the extent Adriana was unable to offer exactitude in describing when the events took place, her descriptions of what occurred were detailed. Any imprecision in her testimony, which was subject to cross-examination by defense counsel, would go "to [its] weight, not [its] admissibility." (People v. Mullens (2004) 119 Cal.App.4th 648, 660.)
Turning to the question of prejudice, it is apparent that any prejudice which may have flowed from Adriana's testimony was minimized substantially by the fact that it was much less inflammatory than the testimony of victims 1 and 2. The relative strength and provocative nature of the evidence of uncharged acts is relevant to the analysis under Evidence Code section 352. (People v. Ewoldt (1994) 7 Cal.4th 380, 405.) The conduct described by Adriana was nowhere near as overtly sexual and reprehensible as the conduct he engaged in with his own daughters, which the jury heard them describe in great detail. The risk is slight that the jury would be so outraged by Adriana's testimony that they would convict him even if they disbelieved the victims. (See, e.g., People v. Mullens, supra, 119 Cal.App.4th at p. 660 [one victim's "testimony as to the touching of her thigh was not unduly prejudicial [given] explicit testimony regarding [the defendant's] alleged multiple lewd acts involving" another victim].)
Ultimately, it is the exclusive province of the trial court to determine whether the probative value of evidence outweighs its possible prejudicial effect. (People v. Sassounian (1986) 182 Cal.App.3d 361, 402.) The trial court's exercise of discretion on this issue will not be disturbed on appeal absent a clear showing of abuse. (Ibid.) "When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge." (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) "[D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered." (Ibid.)
Sanchez fails to carry his burden on appeal as the record demonstrates that the trial court applied the factors outlined by the Falsetta court. We will not second-guess its balancing of those factors.
B. CALCRIM No. 1112
Sanchez next argues the jury was incorrectly instructed on the elements of section 288, subdivision (c), for purposes of assessing whether Sanchez had violated that provision when he touched Adriana. The court instructed the jury on the elements with CALCRIM No. 1112 as follows: "1. The defendant willfully touched any part of a child's body either on the bare skin or through the clothing; [¶] 2. The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child; [¶] 3. The child was (14 or 15) years old at the time of the act; [¶] AND [¶] 4. When the defendant acted, the child was at least 10 years younger than the defendant. [¶] The touching need not be done in a lewd or sexual manner." Sanchez objects to that portion of the instruction which informs the jury, "[t]he touching need not be done in a lewd or sexual manner."
1. Standard of review
A jury instruction is only erroneous if " 'there is a reasonable likelihood that the jury has applied the challenged instruction in a way' " that violates the Constitution. (Estelle v. McGuire (1991) 502 U.S. 62, 72.) The legal correctness of a jury instruction is subject to de novo review. (People v. Posey (2004) 32 Cal.4th 193, 218.)
2. The jury instruction was legally correct
In discussing the definition of a "lewd" act under section 288, the Supreme Court has explained the "statute itself declares that to commit such an act 'wilfully and lewdly' means to do so 'with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires' of the persons involved." (In re Smith (1972) 7 Cal.3d 362, 365 (Smith).) The focus of the offense is on the intent of the perpetrator. "[T]he courts have long indicated that section 288 prohibits all forms of sexually motivated contact with an underage child. Indeed, the 'gist' of the offense has always been the defendant's intent to sexually exploit a child, not the nature of the offending act. [Citation.] '[T]he purpose of the perpetrator in touching the child is the controlling factor and each case is to be examined in the light of the intent with which the act was done. . . . If [the] intent of the act, although it may have the outward appearance of innocence, is to arouse . . . the lust, the passion or the sexual desire of the perpetrator [or the child,] it stands condemned by the statute . . . .' " (People v. Martinez (1995) 11 Cal.4th 434, 444 (Martinez).)
The sentence to which Sanchez objects, instructing that the "touching need not be done in a lewd or sexual manner," is a correct statement of the law and makes it plain to the jury the physical act of touching involved need not be seen as lewd or offensive in and of itself. Even a physical touching that may appear innocent can be a prohibited act under section 288 so long as the jury finds it was done with the requisite statutory intent. "As suggested in Smith, we can only conclude that the touching of an underage child is 'lewd or lascivious' and 'lewdly' performed depending entirely upon the sexual motivation and intent with which it is committed." (Martinez, supra, 11 Cal.4th at p. 449; see also People v. Sigala (2011) 191 Cal.App.4th 695, 700-701 (Sigala) [holding same language in CALCRIM No. 1120 to be correct statement of law].) " 'Conviction under the statute has never depended upon contact with the bare skin or "private parts" of the defendant or the victim.' " (Sigala, supra, at p. 700.) " '[A] lewd or lascivious act can occur through the victim's clothing and can involve "any part" of the victim's body.' " (Ibid.) In short, CALCRIM No. 1112 does not improperly negate a statutory element of section 288.
Sanchez's reliance on People v. Cuellar (2012) 208 Cal.App.4th 1067 (Cuellar) is misplaced. Cuellar addressed identical language in CALCRIM No. 1120, but did not hold the instruction was improper, constitutionally or otherwise. Rather, the court in Cuellar acknowledged the language is "possibly confusing" (Cuellar, supra, at p. 1071), but, reading the instructions as a whole and given the overwhelming evidence against the defendant, the language did not mislead the jury. (Id. at p. 1072.) Subsequent to Cuellar, and effective February 26, 2013, the Advisory Committee on Criminal Jury Instructions deleted the sentence from the form jury instructions for CALCRIM No. 1120. (Judicial Council of California Criminal Jury Instructions, CALCRIM No. 1120 (Feb. 2016 ed.) p. 834.)
Nevertheless, the revision to CALCRIM No. 1120 does not alter our assessment of the validity of CALCRIM No. 1112 as given in this case. There has been no change in the law, discussed above, that a violation of section 288 does not require an explicitly sexual or inherently lewd touching.
C. No cumulative prejudice
Sanchez argues there was cumulative prejudice from the alleged improper admission of Adriana's testimony and the jury instruction on evaluating that testimony. (See People v. Hill (1998) 17 Cal.4th 800, 844 ["a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error"].) However, we have not found error with respect to either of these claims and thus there can be no cumulative prejudice.
D. Sanchez's sentence is not cruel and unusual punishment
Sanchez contends his aggregate sentence of 165 years to life violates the Eighth Amendment's prohibition on cruel and unusual punishment and is a de facto sentence of life without the possibility of parole. We disagree.
The Eighth Amendment of the United States Constitution prohibits cruel and unusual punishments described as "unnecessary and wanton infliction of pain" or punishment "grossly out of proportion to the severity of the crime." (Gregg v. Georgia (1976) 428 U.S. 153, 173.) Our state Constitution similarly provides that neither cruel nor unusual punishment should be inflicted. (Cal. Const. art. I, § 17.)
Sanchez cites no case in which a sentence was found to be cruel and unusual because it exceeds an average person's lifespan, and several published cases have rejected the contention. (People v. Haller (2009) 174 Cal.App.4th 1080, 1089; People v. Retanan (2007) 154 Cal.App.4th 1219, 1231; People v. Byrd (2001) 89 Cal.App.4th 1373, 1382-1383 (Byrd).)
In Byrd, supra, 89 Cal.App.4th 1373, the court held it was "immaterial that [the] defendant cannot serve his sentence during his lifetime. In practical effect, he is in no different position than a defendant who has received a sentence of life without possibility of parole: he will be in prison all his life." (Id. at p. 1383.) However, the fact that Sanchez will likely die in prison before being eligible for parole does not alter the fact that society may decide to express its collective disgust by punishing child molesters harshly without violating the Eighth Amendment or the state Constitution. (Id. at pp. 1383-1384.)
Sanchez cites the late Justice Stanley Mosk's concurring opinion in People v. Deloza (1998) 18 Cal.4th 585, 601 for the proposition that a lengthy sentence such as the one meted out by the trial court here does not serve a rational legislative purpose. Nevertheless, as noted in Byrd, supra, 89 Cal.App.4th at page 1383, " 'no opinion has value as a precedent on points as to which there is no agreement of a majority of the court. [Citations.]' [Citations.] Because no other justice on our Supreme Court joined in Justice Mosk's concurring opinion, it has no precedential value." Under Byrd and the state and federal Constitutions, Sanchez's punishment is not cruel or unusual.
E. Parole revocation fine
At sentencing, the trial court imposed and suspended a $10,000 parole revocation fine. Sanchez argues that this suspended fine was unauthorized because he will not become eligible for parole until long after his death. We disagree.
Section 1202.45, subdivision (a) provides: "In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." This additional parole revocation restitution fine "shall be suspended unless the person's parole . . . is revoked." (Id., subd. (b).) Parole revocation restitution fine moneys "shall be deposited in the Restitution Fund in the State Treasury." (Id., subd. (c).)
" 'When there is no parole eligibility, the [parole eligibility] fine is clearly not applicable.' " (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1184, citing People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183; People v. Jenkins (2006) 140 Cal.App.4th 805, 819.) But, those cases did not involve sentences where the defendant was eligible for parole. Our Supreme Court has said, in a case involving a death sentence, as well as several determinate terms: "[Former] [s]ection 3000, subdivision (a)(1) provides that [a determinate term imposed under section 1170] 'shall include a period of parole.' Section 1202.45, in turn, requires assessment of a parole revocation restitution fine '[i]n every case where a person is convicted of a crime and whose sentence includes a period of parole.' The fine was therefore required . . . . [¶] . . . [D]efendant here is unlikely ever to serve any part of the parole period on his determinate sentence. Nonetheless, such a period was included in his determinate sentence by law and carried with it, also by law, a suspended parole revocation restitution fine. Defendant is in no way prejudiced by assessment of the fine, which will become payable only if he actually does begin serving a period of parole and his parole is revoked." (People v. Brasure (2008) 42 Cal.4th 1037, 1075.)
Because Sanchez was also sentenced to a prison term which includes a period of parole, the parole revocation fine was properly assessed regardless of how unlikely it may be that he will ever be paroled.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Premo, J.
WE CONCUR: /s/_________
Rushing, P.J. /s/_________
Grover, J.