Opinion
D082418
08-12-2024
THE PEOPLE, Plaintiff and Respondent, v. LUIS FELIPE SEBASTIAN, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Elana Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, Super. Ct. No. SCD293275, Evan P. Kirvin, Judge.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Elana Miller, Deputy Attorneys General, for Plaintiff and Respondent.
IRION, Acting P. J.
Luis Felipe Sebastian appeals the order suspending imposition of sentence and placing him on probation after a jury found him guilty of committing a lewd and lascivious act on a minor. He contends the trial court prejudicially erred by refusing to instruct the jury he was not guilty if the touching involved was accidental. We affirm.
I.
FACTUAL BACKGROUND
John Doe went to a gym with his parents one evening when he was 14 years old. After Doe finished his workout, he went to the men's locker room to shower. He removed his clothing except for his boxer shorts, wrapped a towel around his waist, and proceeded to the shower area with shampoo and conditioner.
The shower area has eight stalls arranged along a central corridor. Doe entered a stall, set down his shampoo and conditioner, removed his boxer shorts, threw them and the towel over the frosted glass door, and partially closed the door. Sebastian, who was nude, opened the door and pointed to the stalls on the other side of the corridor. Doe assumed Sebastian was directing him to another shower because the one he was in was not working.
Doe gathered his belongings, put the towel around his waist, and entered a stall on the other side of the corridor. The stall measured 66 inches from front to back and 42 inches from side to side. Doe again set down his shampoo and conditioner and threw his boxer shorts and towel over the shower door, but this time he closed the door completely.
After Doe began to shower, Sebastian, who was nude, opened the door, made eye contact with Doe, and then closed the door. About 10 seconds later, Sebastian, still nude, opened the shower door a second time. Sebastian again made eye contact with Doe but did not gesture or speak. Sebastian entered the shower stall as Doe stood there in shock. Sebastian reached for the soap dispenser but did not pump it. He then pressed his buttocks against Doe's penis and forced Doe into the corner of the stall. Doe was too scared to cry out and pushed Sebastian away. Sebastian then pressed his buttocks against Doe's penis a second time and forced him against the wall of the shower stall. Doe again pushed Sebastian away, and he (Sebastian) exited the stall.
Doe grabbed his towel and went to find his father in the locker room. Doe told his father what had happened, and the two went back to the shower area to confront Sebastian. Doe's boxer shorts were hanging on the door of a shower stall in which Sebastian was standing, which was not the one Doe had been using. When Doe's father asked Sebastian to return the boxer shorts, Sebastian handed them over.
Doe's father reported the incident to Sonny Aguilar, a sales representative of the gym, who spoke to Doe. According to Aguilar, Doe said that Sebastian "stepped in the shower" and "either touched [Doe] or pushed him to the side to get the soap and whatnot, per se, something along those lines." Aguilar escorted Sebastian out of the gym.
II.
PROCEDURAL BACKGROUND
The People charged Sebastian with committing a lewd and lascivious act on child 14 or 15 years old and at least 10 years younger than Sebastian. (Pen. Code, § 288, subd. (c)(1); subsequent section references are to this code.) He pled not guilty and the case proceeded to a jury trial.
Sebastian's counsel asked the court to instruct the jury regarding accident with CALCRIM No. 3404. For general or specific intent crimes, the instruction states: "The defendant is not guilty of _____ <insert crime[s]> if (he/she) acted [or failed to act] without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of _____ <insert crime[s]> unless you are convinced beyond a reasonable doubt that (he/she) acted with the required intent." (Ibid.) Sebastian's counsel argued the size of the shower stall and Aguilar's testimony about what Doe said happened in the stall "suggest[ed] an accident[al] touching while trying to get soap." The prosecutor argued the evidence did not support giving the instruction. The court found no evidence of an accidental touching. It stated that Sebastian "walks into the shower, John Doe's already there, clearly sees that he's there. He goes to the soap and bumps into John Doe at least twice....There's no evidence that he stumbled, he slipped, he fell, he didn't know John Doe was there." The court therefore denied the request to give CALCRIM No. 3404.
In closing argument, Sebastian's counsel told the jury: "We have a situation here where somebody maybe made a bad decision to go get soap out of a shower stall that had somebody else in it.... None of this was sexual." She argued that because the shower stall was "a small space," Sebastian was "hitting another person that's in there" while he was getting soap. Counsel conceded that Sebastian invaded Doe's privacy, but contended "that is not a commission of this crime." Counsel continued: "[W]e don't want a situation where somebody touches somebody on accident to become a crime. We don't want an unintentional touch to just be a crime because it offends another person." She told the jury that to be guilty of committing a lewd and lascivious act, Sebastian must have had "the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child." Counsel argued the People had not proved the required intent beyond a reasonable doubt because a reasonable conclusion from the circumstantial evidence was that Sebastian "went into the shower stall to get soap" and "accidentally backed into John Doe because it was a small space." For a touching to constitute a lewd and lascivious act, counsel told the jury the act "has to be willful. It has to be on purpose." In concluding her argument on this issue, counsel said: "I feel like a broken record repeating that intent, but it is so critical in this case. And what you have seen does not meet this."
The jury found Sebastian guilty of the charged lewd and lascivious act. The court suspended imposition of sentence and placed him on probation for two years.
III.
DISCUSSION
Sebastian contends the trial court's refusal to instruct the jury on the theory of accident violated his federal constitutional rights to a fair trial and due process of law. (See U.S. Const., 6th Amend. [specifying trial rights] &14th Amend. [prohibiting deprivation of "life, liberty, or property, without due process of law"].) He contends the court was required to give the instruction because he requested it, accident negates the intent required to commit a lewd and lascivious act, and substantial evidence supported his accident theory. We disagree.
Refusal to instruct on the theory of accident did not violate Sebastian's federal constitutional rights. The Sixth and 14th Amendments guarantee a defendant in a criminal case the right to present a complete defense, which includes jury instructions on applicable defenses and the defense theory of the case. (Crane v. Kentucky (1986) 476 U.S. 683, 690; People v. Bell (2009) 179 Cal.App.4th 428, 434; People v. Woodward (2004) 116 Cal.App.4th 821, 834.) Sebastian acknowledges "accident merely negates criminal intent" and is not "a real defense." (See People v. Gonzalez (2018) 5 Cal.5th 186, 199, fn. 3; People v. Anderson (2011) 51 Cal.4th 989, 997-998 (Anderson); People v. Jennings (2010) 50 Cal.4th 616, 674-675.) Had his requested accident instruction been given, the jury would have been told it could not find him guilty unless it was "convinced beyond a reasonable doubt that [he] acted with the required intent" and not "accidentally." (CALCRIM No. 3404.) Instructions the trial court gave made that point. The court told the jury that to find Sebastian guilty, it had to find he "intentionally commit[ted] the prohibited act." (CALCRIM No. 251, italics added.) The court defined the prohibited act the People had to prove as "willfully touch[ing] any part of a child's body" with "the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [Sebastian] or the child," and defined "willfully" as "willingly or on purpose." (CALCRIM No. 1112, some italics added.) The court also told the jury: "Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt." (CALCRIM No. 220.) Where, as here, "the pattern instructions given to the jury adequately covered the same ground as [a] defendant's special instruction," refusal to give the instruction does not violate the defendant's federal constitutional rights to a fair trial and due process of law. (People v. Hovarter (2008) 44 Cal.4th 983, 1022.)
There was also no violation of Sebastian's rights under state law. An instruction on accident is a so-called "pinpoint instruction," which relates particular facts to an element of a charged offense and informs the jury of its duty to acquit if the evidence raises a reasonable doubt as to that element. (Anderson, supra, 51 Cal.4th at pp. 996-997; People v. Zemek (2023) 93 Cal.App.5th 313, 346 (Zemek).) A defendant has a right to a pinpoint instruction only if it is requested and supported by evidence sufficient to deserve jury consideration. (Anderson, at p. 998; People v. Roldan (2005) 35 Cal.4th 646, 715; People v. Marshall (1997) 15 Cal.4th 1, 39.) Sebastian asked for an accident instruction, but there was not enough evidence to require the trial court to give it. Doe was the only person with personal knowledge of what happened in the shower stall to testify at trial. According to Doe, Sebastian twice opened the door and made eye contact with Doe before entering the stall he was occupying, reached toward the soap dispenser but did not pump it, and then twice pressed his buttocks against Doe's penis with such force as to push him against the walls of the stall. Doe's testimony was inconsistent with Sebastian's theory that while he was trying to get soap he accidentally touched Doe. The testimony instead showed "a purpose or willingness to commit the act [i.e., touching]" (§ 7, subd. (1) [defining" 'willfully' "]), as required for conviction of the charged offense (§ 288, subds. (a), (c)(1)). Aguilar's testimony that Doe said Sebastian "either touched [Doe] or pushed him to the side to get the soap and whatnot, per se, something along those lines" was ambiguous and" 'at most minimal'" on the issue of whether the touching was intentional. (Roldan, at p. 716.) The trial court thus properly refused to give the requested accident instruction. (Ibid.; Marshall, at pp. 39-40.)
Even were we to conclude the trial court erred by refusing the requested instruction, we would find the error harmless. Error in refusing to give a pinpoint instruction "is reviewed for prejudice under the Watson harmless error standard" (People v. Larsen (2012) 205 Cal.App.4th 810, 830), which requires reversal only if "the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error" (People v. Watson (1956) 46 Cal.2d 818, 836). "The denial of a pinpoint instruction is harmless under Watson where the instructions that were given do not preclude findings consistent with the proposed pinpoint instruction's theory and where the defense counsel fully argued the point to the jury." (Zemek, supra, 93 Cal.App.5th at p. 347.) As discussed above, the pattern instructions the court gave "sufficiently addressed the principles stated in [the] proposed pinpoint instruction" (id. at p. 348) by advising the jury that to find Sebastian guilty the People had to prove beyond a reasonable doubt he intentionally touched Doe. (See p. 6, ante.) And as recounted earlier, Sebastian's counsel repeatedly told the jury any touching was accidental and focused her argument on the issue of intent to such an extent that she described herself as "a broken record." (See pp. 45, ante.) Because nothing in the pattern instructions given precluded the jury from finding an unintentional touching and Sebastian's counsel in closing argument fully set out the defense theory of accident, any error in refusing to instruct the jury with CALCRIM No. 3034 was harmless. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1144; Zemek, at p. 347.)
IV. DISPOSITION
The order granting probation is affirmed.
WE CONCUR: CASTILLO, J., RUBIN, J.