Opinion
B296333
07-31-2020
THE PEOPLE, Plaintiff and Respondent, v. EDWIN SERRANO, Defendant and Appellant.
Law Offices of Allen G. Weinberg and Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA144837) APPEAL from a judgment of the Superior Court of Los Angeles County, Tammy Chung Ryu, Judge. Sentence vacated and remanded with directions. Law Offices of Allen G. Weinberg and Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
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Edwin Serrano appeals from a judgment entered after a jury found him guilty of 14 counts of sexual offenses against his stepdaughter, committed when she was between 11 and 14 years old. The trial court sentenced him to 96 years, eight months in prison. He contends there was insufficient evidence of force or duress presented at trial to support his convictions on four of the five counts of sexual penetration by a foreign object and the count for oral copulation. He also contends the trial court erred (1) in failing to instruct sua sponte on lesser included offenses, (2) in admitting evidence of an uncharged sexual offense, and (3) in misunderstanding its sentencing discretion. The Attorney General concedes, and we agree with, Serrano's claim of sentencing error, for the reasons explained below. Accordingly, we vacate the sentence and remand for resentencing. We reject Serrano's other claims of error and affirm the judgment in all other respects.
BACKGROUND
I. Evidence of Charged Offense
When R.R. was 14 years old, she gave birth to M.R., the victim in the charged offenses. Around two years later, when R.R. was 16 years old and M.R. was 2, R.R. began dating defendant Serrano, who was then 23 years old. At some point, R.R. and Serrano married. Although Serrano was not M.R.'s biological father, he was the only father figure in her life, and she called him "dad." When M.R. was around four years old, Edwin, Jr., Serrano and R.R.'s son, was born.
Both R.R. and M.R. testified at trial in the prosecution's case. M.R. was 15 years old at the time of the trial, and R.R. was 29.
Serrano was the disciplinarian in the household. He typically drank alcohol when he was at home, and M.R. described him as "violent," "angry and rude" when he drank alcohol. When Serrano believed M.R. was misbehaving, he yelled at her and threatened to hit her. R.R. would intervene and stop Serrano when he attempted to hit M.R. Serrano disciplined Edwin, Jr., by striking the boy with a hanger. Serrano and R.R. frequently argued, and Serrano would push R.R. away during the arguments. On one occasion, M.R. witnessed Serrano slap R.R., causing R.R. to fall to the floor. R.R. cried and it appeared to M.R. that R.R. was scared. According to M.R., Serrano was drunk during this incident.
R.R. testified that Serrano disciplined M.R. by (1) "giv[ing] her cold showers when she did something wrong and didn't stop crying," (2) striking her on her back with a belt, and (3) hitting her with a hanger. During her testimony, M.R. recounted an incident, that occurred when she was between five and seven years old, where Serrano threw a bucket of cold water on her and screamed at her because she did not want to go to school. M.R. testified that, although Serrano would often threaten and attempt to hit her, he never did because R.R. intervened to stop him.
At the time Serrano began sexually abusing M.R., the family lived in a one-bedroom apartment, and the four of them slept on a mattress on the floor. R.R. worked in the evenings on the weekends, and she would leave M.R. and Edwin, Jr., in Serrano's care.
M.R. testified Serrano began touching her when she was 11 years old and in the sixth grade. On a weekend evening when R.R. was not home, M.R. was in the bedroom, in the dark, on the mattress, going to sleep, when Serrano entered the bedroom and knelt by her. He began rubbing his hand back and forth across her breasts, over her clothes. M.R. was surprised and she "froze." She felt "scared" and "nervous." She did not say anything. Neither did Serrano. He continued rubbing her breasts, over her clothes, for a couple of minutes, and then he left the room. Thereafter, nearly every weekend, Serrano would repeat the act of rubbing M.R.'s breasts over her clothes.
A few months after the first incident of sexual abuse, when M.R. was still 11 years old, Serrano touched her breasts under her shirt and bra, skin-to-skin. She was lying on the mattress when Serrano came into the bedroom and knelt by her. He placed his hand under her shirt and touched her stomach, before moving his hand up to her bra. He moved her bra and rubbed her bare breasts with his hand. M.R. repeatedly told him "no," and moved around, but he did not stop. She was holding her phone in one hand, and she tried to push him away with the other hand, but he grabbed her free hand and held it down. Serrano continued to rub her breasts for a couple of minutes, and then he left the room.
When M.R. was around 12 years old, Serrano touched her vagina, over her clothes, on a weekend evening when R.R. was not home. M.R. was lying on the mattress, trying to go to sleep, when Serrano entered the room and knelt by her. He started touching her stomach, and then he moved his hand down and began rubbing her vagina over her jeans. He rubbed her vagina for a couple of minutes, and then he left the room. Thereafter, nearly every weekend, Serrano would repeat the act of rubbing M.R.'s vagina over her clothes. After M.R. turned 12, she and Edwin, Jr., began sleeping on bunk beds, with her on the top bunk.
When M.R. was around 13 years old, Serrano touched her vagina, under her clothes, skin-to-skin, and penetrated her vagina with his finger. On a weekend evening, when R.R. was not home, M.R. was lying on the couch in the living room, watching television, when Serrano tried to pick up her legs so he could sit next to her. She refused to move because she did not want him near her, so he knelt in front of her. He began massaging her calves, over her jeans, and he moved his hands up her legs. He unbuttoned her jeans, unzipped them, and pulled down her jeans and underwear. M.R. repeatedly told him to stop, but he continued. She "tried kicking him off" her, but he held down her legs. He rubbed the outside of her vagina. She then "froze" and was unable to speak. He placed a finger inside her vagina, which caused her to feel physical pain. He told her "he knew [she] liked it." When he stopped, she "felt stuck," and she "felt weak." She went to the bathroom and cried. Thereafter, Serrano would touch M.R.'s vagina under her clothes once or twice per weekend.
When M.R. was around 13 years old, Serrano touched her vagina with his mouth on a weekend evening when R.R. was not home. M.R. was lying in the bedroom on the mattress when Serrano came into the room. He touched her breasts and rubbed her vagina, over her clothes. Next, he pulled down her jeans and underwear and rubbed her vagina, skin-to-skin. Then, M.R. felt Serrano's mouth on her vagina. He did not say anything. Nor did she. She "couldn't move" and "couldn't think." She felt "so scared." After he finished using his mouth, Serrano rubbed her vagina again and kissed her thigh. Then, he pulled up her underwear and jeans and left the room. M.R. testified at trial that Serrano put his mouth on her vagina more than once, but she could not recall when the last such incident occurred.
M.R. testified that after the first incident when she was 11 years old, Serrano touched her nearly every weekend, multiple times per weekend. She "would freeze" and her "mind would just go blank" during the incidents, and that helped her to deal with it. M.R. recalled that during the two incidents when she asked Serrano to stop and attempted to physically resist him, his behavior became more aggressive, and he held parts of her body down, as described above. The incidents usually occurred on weekend evenings when R.R. was at work. Occasionally, Serrano touched her over her clothes when R.R. was in the apartment.
M.R. also testified that she hated Serrano and was afraid of him. He made her afraid when he touched her and when he yelled at her. She did not want him to touch her. She was afraid during the incidents and believed he might become violent with her "because he would always like things his way." After he began touching her, she tried to isolate herself from the family. On weekends, she would ask to go sleep at her grandmother's or aunt's house. Sometimes R.R. allowed it, and sometimes she did not. M.R. did not tell R.R. why she wanted to leave home on the weekends. She was afraid R.R. would not believe her if she told R.R. that Serrano was touching her.
M.R. further testified that when she went to parties or gatherings with her family, Serrano "would always glare at" her, "giv[ing her] a stink eye," with his face in "a scowl." M.R. believed Serrano was silently communicating with her through these looks, telling her "to not say anything." These looks stopped her from telling anyone that Serrano was touching her.
R.R. testified that M.R.'s behavior changed when M.R. was between 11 and 14 years old. M.R. "wanted to be alone all the time," "was always sad," and "didn't like when [Serrano] got close to her." When Serrano would sit next to M.R., M.R. would move away. R.R. recalled that M.R. would ask her if she could spend the weekend with a relative while R.R. worked. M.R. would cry when R.R. told her she had to stay home on the weekend.
II. Evidence of Uncharged Offense
Leah S. testified at trial about an uncharged incident with Serrano that occurred on November 11, 2017, when Leah was around 15 years old (and M.R. was 14). Leah was 16 years old when she testified at trial.
Leah and her family attended a child's birthday party at Serrano's sister's house. M.R. and her family were there. Leah is not related to M.R.'s family. In the evening, after dark, while Leah was standing near an inflatable "bouncy house," Serrano "grabbed" her from behind by her hips and "grind[ed] on her." She felt "his penis on [her] rear end," and she felt him make "a grinding movement." Leah turned around, and said, "Who's this?" Serrano responded, "Oh, I'm sorry. I thought you were my daughter." Leah was taller than M.R., with short, red hair. M.R. had long brown hair that she was wearing in a ponytail that night. Right after the incident, Leah told her stepmother what happened.
Leah's father, Julio S., who was also at the party, testified at trial. He stated that Serrano apologized to him while they were still at the party. Serrano told him, "I'm sorry. It was a mistake. I thought it was my daughter." According to Julio, Serrano "seemed pretty intoxicated" and "appeared nervous" when he was making his apology. Later that night, after talking to Leah about the incident, and hearing how upset she was, Julio made a police report.
The incident was related to R.R. while both families were still at the party. R.R. approached M.R. and asked if Serrano "had done something to her." M.R. began to cry, and she told R.R. that Serrano had touched her.
R.R. confronted Serrano at the party. He denied ever touching M.R. He fled when he learned someone had called the police. Roxanna contacted the police on the evening of the party and also the next day. R.R. did not return home until the following day. When she did, she saw that Serrano had removed all his belongings from the home.
Serrano objected below to admission at trial of evidence of this uncharged offense involving Leah. His counsel argued, in pertinent part, "[p]ursuant to Evidence Code section 352, the probative value of that evidence is outweighed by the danger of unfair prejudice" because (1) Leah was the only witness to the incident and he questioned her credibility and (2) the uncharged offense was not similar to the charged offense. The trial court overruled the objection, finding the evidence "is relevant and probative. And the value of the evidence clearly outweighs in this court's opinion any prejudice to the defense." The court commented that the evidence is "relevant especially in light of defendant's statement to either Leah and/or to her father that he thought that the person he was basically grinding from the back in this dance was his daughter."
III. Serrano's Interview With Law Enforcement
Los Angeles County Sherriff's Detective Cynthia Toone interviewed Serrano, and the audio recording of the interview was played for the jury. Serrano admitted to Detective Toone that he had touched M.R.'s breasts and vagina, penetrated her vagina with his finger, and orally copulated her. He admitted he digitally penetrated M.R. on five occasions, four times when she was 13 years old and once when she was 14. He admitted to one act of oral copulation that he said occurred the day before the November 11, 2017 party described above. Serrano acknowledged that he drank beer at home every weekend.
Detective Toone also interviewed M.R. and testified about the interview at trial. M.R.'s interview was not recorded. According to Detective Toone, M.R. estimated there were about 150 incidents in which Serrano sexually abused her when she was between 11 and 14 years old.
Serrano denied touching M.R.'s breasts when she was 11 or 12 years old but stated he would put Vicks' VapoRub on her at that age when she was sick. He noticed that her breasts were starting to develop.
Serrano told Toone the incidents with M.R. began when M.R. was 13 years old. At that time, he noticed that M.R. was growing up and her breasts were more developed. At the same time, M.R. "noticed [him] as a man" and began complimenting his body. According to Serrano, M.R. would "flirt with [him]" and "provoke" him by sitting a certain way on the couch. He stated that the first incident occurred when the two were playing on an evening when R.R. was at work. Their faces were close, and M.R. looked at his lips "with the urge to kiss [him]." Serrano kissed her on the mouth, she "liked the kiss," and she reciprocated.
Serrano told Detective Toone that he was "really drunk" the first time he touched M.R.'s vagina when she was 13 years old. She was going to sleep, and he asked her if she wanted him to get into bed with her. She said "no." He climbed into bed with her, and she said "no" again. He told her he would sleep on the corner of the bed, the way the family used to sleep in bed together. She acquiesced. He hugged her and rubbed her stomach, as she always liked him to do. She turned around and he noticed "that her breathing started to get faster." He decided, "I'm going to see what she wants." According to Serrano, M.R. lifted her feet, and then she opened her legs when he touched her vagina over her clothes.
Serrano also told Detective Toone that when M.R. was 13 years old, he digitally penetrated her. The two were in the living room. He began to massage her legs because she always told him her legs were sore from soccer. She told him to move his hands up her legs until he reached her vagina. Serrano admitted he digitally penetrated M.R. on five occasions, four times when she was 13 years old and once when she was 14.
Serrano also admitted to Detective Toone that he orally copulated M.R. once, on the Friday before the interview (which was also the day before the November 11, 2017 party). He described the incident as follows: "I performed oral sex on her. Uh, she let me--she would always let me take it off. She would never resist or anything. She was always available. And that day, I wanted to go up to her breasts or to her neck and give her a kiss on the mouth. No, she didn't want to. She just wanted me to be there."
Serrano told Detective Toone that he never threatened M.R., and he told her that she could talk to the police about the incidents. He believed that he and M.R. were both at "fault" but he was "the only guilty one here" because of his age. He added, "But if justice were fair, uh, we would both be at fault." He told Detective Toone that he knew he deserved punishment for what he did to M.R.
Regarding the incident with Leah, Serrano told Detective Toone he was drunk at the party, and he hugged a girl he thought was M.R., but it was Leah. He did not recall grinding his pelvis into the girl's buttocks.
IV. Verdicts
The jury found Serrano guilty of continuous sexual abuse of a child under 14 years of age (Pen. Code, § 288.5, subd. (a); count 3); six counts of lewd act upon a child under 14 years of age (Pen. Code, § 288, subd. (a); counts 1, 2, 4, 6, 8 & 10); one count of lewd act upon a child who is 14 years of age by a person at least 10 years older (Pen. Code, § 288, subd. (c)(1); count 12); four counts of sexual penetration by a foreign object upon a child under 14 years of age by force or duress (Pen. Code, § 289, subd. (a)(1)(B); counts 5, 7, 9 & 11); one count of sexual penetration by a foreign object upon a child 14 years of age or older by force or duress (Pen. Code, § 289, subd. (a)(1)(C); count 13); and one count of oral copulation upon a child 14 years of age or older by force or duress (former Pen. Code, § 288a, subd. (c)(2)(C); count 15). The jury found Serrano not guilty of oral copulation upon a child under 14 years of age by force or duress. (Former Pen. Code, § 288a, subd. (c)(2)(B); count 14.)
Effective January 1, 2019, Penal Code section 288a was recodified at section 287.
We set forth below the terms of Serrano's sentence, in addressing the claim of sentencing error.
At trial, Serrano's counsel conceded that Serrano committed continuous sexual abuse of a child and the lewd act counts. Serrano disputed the counts that required proof of force or duress (counts 5, 7, 9, 11, 13, 14, and 15).
DISCUSSION
I. Sufficiency of the Evidence of Duress on Counts 7, 9, 11, 13, and 15
Serrano contends there was insufficient evidence of force or duress presented at trial to support his convictions on counts 7, 9, and 11 for sexual penetration upon a child under 14 years of age (Pen. Code, § 289, subd. (a)(1)(B)); on count 13 for sexual penetration upon a child 14 years of age or older (Pen. Code, § 289, subd. (a)(1)(C)); and on count 15 for oral copulation upon a child 14 years of age or older (former Pen. Code, § 288a, subd. (c)(2)(C)). An element of each of these offenses is that "the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." (Pen. Code, §§ 289, subd. (a)(1)(B)-(C) & former 288a, subd. (c)(2)(C).)
Serrano does not challenge the sufficiency of the evidence on count 5, which corresponds with M.R.'s testimony regarding the first time Serrano sexually penetrated her with his finger while he held down her legs.
As the trial court instructed the jury in this case, "Duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do or submit to something that he or she would not otherwise do or submit to. When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the other person and her relationship to the defendant." (CALCRIM Nos. 1015, 1045.)
"The totality of the circumstances includes the victim's age, her relationship to the perpetrator, threats to harm the victim, physically controlling the victim when the victim attempts to resist, warnings to the victim that revealing the molestation would result in jeopardizing the family, and the relative physical vulnerability of the child. [Citations.] The fact that the victim testifies the defendant did not use force or threats does not preclude a finding of duress. [Citation] When the victim is young and is molested by her father in the family home, duress will be present in all but the rarest cases." (People v. Thomas (2017) 15 Cal.App.5th 1063, 1072-1073.)
" 'In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value . . . ." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] . . . "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.] We do not reweigh evidence or reevaluate a witness's credibility.' " (People v. Houston (2012) 54 Cal.4th 1186, 1215.)
Substantial evidence presented at trial demonstrates: Serrano came into M.R.'s life when she was two years old. She called him, "dad." Although not her biological father, he was the father figure in her life until she disclosed his sexual abuse when she was 14 years old.
Serrano typically drank alcohol when he was at home, in the family's one-bedroom apartment. According to M.R.'s testimony, Serrano became "violent," "angry and rude" when he drank alcohol. He "always" argued with R.R. (M.R.'s mother), and M.R. would often see Serrano "push [R.R.] away from him" during these arguments. On one occasion, when Serrano was drunk, M.R. saw Serrano "slap" R.R., causing R.R. to fall to the ground. R.R. began crying, and she appeared to M.R. to be "scared."
Serrano was the disciplinarian in the household. He "would always yell at [M.R.]." According to M.R.'s testimony, Serrano would often threaten to hit her, and "try to hit her," but R.R. intervened to stop him. M.R. was aware that Serrano disciplined Edwin, Jr., by striking the boy with a hanger.
R.R. testified that Serrano disciplined M.R. by (1) "giv[ing] her cold showers when she did something wrong and didn't stop crying," (2) striking her on her back with a belt, and (3) hitting her with a hanger. During her testimony, M.R. recounted an incident, that occurred when she was between five and seven years old, where Serrano threw a bucket of cold water on her and screamed at her because she did not want to go to school. But M.R. testified that, although Serrano would often threaten and attempt to hit her, he never did because R.R. intervened to stop him.
Serrano began sexually abusing M.R. when she 11 years old and in the sixth grade at school. From then, the sexual abuse was continuous and escalated in nature, occurring nearly every weekend (and multiple times per weekend), until she was 14 years old. R.R. worked on weekend evenings, and M.R. was in Serrano's care then. M.R. testified that she did not want Serrano to sexually abuse her, and she hated him for committing these acts upon her. She was afraid during the incidents and believed Serrano might become violent with her "because he would always like things his way." She "would freeze" and her "mind would just go blank" during the incidents of sexual abuse, and that helped her to cope with the trauma, as the events occurred.
On the two occasions when M.R. resisted the sexual offenses—telling Serrano "no," moving her body, and trying to push him away the first time he touched her breasts under her clothes when she was 12 years old; and refusing to move her legs when he tried to sit next to her on the couch, physically resisting as he pulled down her jeans, repeatedly "telling him to stop," and trying to kick him away from her the first time he sexually penetrated her with his finger when she was around 13 years old—his behavior became more aggressive, holding her arm down during the first incident described here, and holding her legs down and telling her she "liked it" during the second.
As noted above, Serrano does not challenge the sufficiency of the evidence of force with respect to this incident of sexual penetration by a foreign object (count 5).
After the sexual abuse began, M.R. tried to avoid being near Serrano. She would ask R.R. if she could spend the weekend with a relative while R.R. worked. During her testimony, R.R. recalled that M.R. would cry when R.R. told her she had to stay home on the weekend. R.R. noticed that M.R. "wanted to be alone all the time," "was always sad," and "didn't like when [Serrano] got close to her." According to R.R., when Serrano would sit next to M.R., M.R. would move away.
According to M.R.'s testimony, after the sexual abuse started, Serrano "would always glare at" her, "giv[ing her] a stink eye," with his face in "a scowl," when they were at gatherings with others present. M.R. believed Serrano was silently communicating with her through these looks, telling her "to not say anything." M.R. testified that these looks stopped her from telling anyone about the sexual abuse.
A review of the totality of the circumstances, based on substantial evidence presented at trial, demonstrates that Serrano committed counts 7, 9, 11, and 13 (sexual penetration by a foreign object) and count 15 (oral copulation) by duress. All the events on which these counts are based occurred after M.R. twice attempted unsuccessfully to physically resist Serrano's sexual abuse. Based on the threats of physical violence Serrano made in the ordinary course when he believed M.R. was misbehaving, M.R. was afraid Serrano would resort to physical violence if she resisted the sexual acts. During these incidents of sexual abuse, R.R. was not present to intervene if Serrano became violent, in the way R.R. often intervened when Serrano threatened and attempted to hit M.R. for purported misbehavior. Serrano was M.R.'s father figure, from whom she could not escape and with whom she had to live in the family's one-bedroom apartment, where they all slept in the same room. When M.R. was out in public with her family, she did not tell anyone about the sexual abuse, because Serrano glared and scowled at her, and she believed he was silently ordering her not to disclose the abuse. Based on the foregoing, substantial evidence in the record demonstrates that M.R. endured, in connection with the sexual offenses charged in counts 7, 9, 11, 13, and 15, an "implied threat of . . . violence . . . or retribution that causes a reasonable person to do or submit to something that he or she would not otherwise do or submit to," the legal definition of duress. (CALCRIM Nos. 1015, 1045.)
Serrano points out that he did not verbally threaten to harm M.R. (or another family member) during the commission of the sexual acts or tell her not to say anything about the sexual abuse. As set forth above, the legal definition of duress does not require a direct threat of violence or retribution.
In his opening appellate brief, Serrano argues "[M.R.]'s compliance" with the sexual acts he committed upon her "was not the result of duress contemplated by the forcible sexual assault statutes but, instead was solely due to psychological coercion." He also asserts: "[W]hat [M.R.] described is merely psychological coercion which caused her to feel defeated and powerless to stop [him]. M.R. felt as though she could not make [him] stop touching her, so she acquiesced to his desires." Serrano cites People v. Hecker (1990) 219 Cal.App.3d 1238 (Hecker) for the proposition that " '[p]sychological coercion' without more does not establish duress." (Id. at p. 1250 [where the defendant never threatened the victim, and the victim "admitted she was never consciously afraid [the defendant] would harm her," but "she felt 'pressured psychologically' and 'subconsciously afraid' " at ages 12 and 13 when he sexually abused her, "there was no evidence [the defendant] was aware of and sought to take advantage of such fear"].) Later cases, however, have concluded that the " 'very nature of duress is psychological coercion.' " (See, e.g., People v. Veale (2008) 160 Cal.App.4th 40, 48.)
Unlike the appellate court in Hecker, we conclude substantial evidence here shows more than psychological coercion or subconscious fear. Substantial evidence in the record demonstrates that M.R. was consciously afraid of Serrano during the commission of the sexual offenses at issue based on Serrano's pattern of volatile conduct and anger when he drank alcohol in the home where he sexually abused M.R., frequent yelling at M.R. and R.R., engaging in physically violent conduct toward R.R., threatening and attempting to hit M.R. when he believed she was misbehaving, and glaring and scowling at M.R. when she was around others, which M.R. interpreted as an order that she not tell anyone about the abuse. There is substantial evidence that Serrano committed the sexual offenses described in counts 7, 9, 11, 13, and 15 by duress.
In arguing the evidence is insufficient, Serrano notes discrepancies between M.R.'s interview with Detective Toone and her testimony at trial. In reviewing Serrano's claim of insufficiency of the evidence, we do not reweigh the evidence. M.R.'s trial testimony establishes substantial evidence of duress.
II. Trial Court's Duty to Instruct Sua Sponte on Lesser Included Offenses
Serrano contends the trial court erred in failing to instruct sua sponte on the following nonforcible offenses that he asserts are lesser included offenses of certain of the charged offenses: (1) sexual penetration with a person who is under 14 years of age and more than 10 years younger than the defendant (Pen. Code, § 289, subd. (j)); cf. counts 7, 9 & 11 for sexual penetration upon a child who is under 14 years of age by force or duress (Pen. Code, § 289, subd. (a)(1)(B)); (2) sexual penetration with a person who is under 16 years of age when the defendant is over 21 years of age (Pen. Code, § 289, subd. (i)); cf. count 13 for sexual penetration upon a child who is 14 years of age or older by force or duress (Pen. Code, § 289, subd. (a)(1)(C)); and (3) oral copulation with a person who is under 16 years of age when the defendant is over 21 years of age (former Pen. Code, § 288a, subd. (b)(2)); cf. count 15 for oral copulation upon a child who is 14 years of age or older (former Pen. Code, § 288a, subd. (c)(2)(C)).
" 'Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense [the legal elements test], or the facts actually alleged in the accusatory pleading [the accusatory pleading test], include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.' [Citation.]" (People v. Breverman (1998) 19 Cal.4th 142, 154, fn. 5.) Here, Serrano only argues his contention under the accusatory pleading test, and not the legal elements test. Under the accusatory pleading test, "we review the information to determine whether the accusatory pleading describes the crime . . . in such a way that if committed in the manner described, [the lesser offense] must necessarily be committed." (People v. Moses (1996) 43 Cal.App.4th 462, 469-470.)
For each of the crimes that Serrano contends is a lesser included offense, as listed above, the defendant's age or the age difference between the defendant and the child at the time of commission of the crime is an element of the lesser offense. (Pen. Code, §§ 289, subd. (j) [the child is more than 10 years younger than the defendant], 289, subd. (i) [the defendant is over 21 years of age], former 288a, subd. (b)(2) [the defendant is over 21 years of age].) In contrast, none of the corresponding charged offenses in the amended information (listed above) allege Serrano's age or the age difference between Serrano and M.R. (nor is the defendant's age/age difference between the defendant and the victim an element of these charged offenses).
Serrano asserts that in applying the accusatory pleading test, we may look to the caption of the amended information, where his date of birth is listed. He cites no authority supporting his assertion, but he cites case law that does not support his contention. In People v. Woods (2015) 241 Cal.App.4th 461 (Woods), a case on which Serrano relies, the appellate court concluded unlawful sexual intercourse between a person who is 21 years of age or older with a child who is under 16 years of age is not a lesser included offense of forcible rape. (Id. at pp. 477, 479.) In applying the accusatory pleading test, the court pointed out that the "allegation as to the substantive offense of forcible rape in each of these counts does not include the allegation that C.C. was a minor, her age or [defendant] Woods's age at the time of the intercourse." (Id. at p. 479.) In evaluating whether the information described forcible rape in such a way that if committed in the manner described, unlawful sexual intercourse between a person who is 21 years of age or older with a child who is under 16 years of age must necessarily be committed, the court did not cite the caption page of the information as a charging allegation regarding the defendant's age at the time of the charged offense. (Presumably, the caption of the information in Woods included the defendant's date of birth.)
If the defendant in Woods was under 21 years old or the victim was 16 years of age or older, then the defendant could have committed the greater offense (forcible rape) but not the lesser (unlawful sexual intercourse with a minor).
Serrano cites no authority, and we are aware of none, indicating we may use data in the caption of a charging document in applying the accusatory pleading test. Given well-established case law that courts may not even "look to" enhancement allegations on a charged offense "for purposes of determining whether an accusatory pleading describes the offense in such a way that if the offense is committed as specified, then a lesser offense is necessarily also committed" (Woods, supra, 241 Cal.App.4th at p. 480), we certainly may not look to the caption page of an information, which is not even part of the allegations.
Because the proposed lesser offenses fail the accusatory pleading test (and the legal elements test), the trial court had no sua sponte duty to instruct on them.
III. Constitutionality of Evidence Code Section 1108
Serrano contends Evidence Code section 1108 violates a defendant's constitutional due process right to a fair trial because it allows admission of evidence of uncharged sexual offenses "that are only subject to proof by a preponderance of the evidence to show that the defendant had a propensity to commit the charged offenses." He raises this contention to preserve it for further review. He acknowledges that in People v. Falsetta (1991) 21 Cal.4th 903, the California Supreme Court concluded section 1108 does not violate due process because it "preserves trial court discretion to exclude the evidence if its prejudicial effect outweighs its probative value" under section 352, and it does not "improperly alter or reduce the prosecutor's burden of proof." (Falsetta, at pp. 907, 920.) He argues the Supreme Court "should re-examine its holding" in Falsetta. He concedes this court is bound by our high court's decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Further statutory references are to the Evidence Code.
IV. Admission of Evidence of Uncharged Offense Under Section 1108
Serrano contends that in applying section 1108 in this case, the trial court violated his constitutional right to due process and abused its discretion under section 352, in admitting evidence of the uncharged offense. He argues: "[H]aving to defend against an allegation of sexual assault upon a teenage girl [Leah] that needed to only be proved by a preponderance of the evidence shifted the burden of proof and made it impossible for [him] to raise doubt as to the force or duress elements of the disputed charges against him." He claims the trial court should have excluded the evidence of the uncharged offense under section 352 because that evidence "undermined [his] defense" that the sexual offenses against M.R. described in counts 5, 7, 9, 11, 13 and 15 "were consensual," and the prejudicial effect of the propensity evidence "clearly outweighed any probative value."
Ordinarily, evidence of a defendant's prior bad acts is inadmissible to prove his propensity to commit the charged offense, but may be admitted where relevant to prove a fact such as motive, intent, plan, etc. (§ 1101, subds. (a)-(b).) Section 1108, however, permits the admission of evidence of prior sexual offenses to show a defendant's propensity to commit a charged sexual offense, so long as the evidence of the uncharged offense is not inadmissible under section 352 (i.e., "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"). (§§ 352, 1108, subd. (a)(1).)
As Serrano acknowledges, in People v. Falsetta, supra, 21 Cal.4th 903, our Supreme Court concluded section 1108 does not violate due process in that it does not "improperly alter or reduce the prosecutor's burden of proof." (Falsetta, at p. 920.) Moreover, the Court concluded section 1108 "preserves trial court discretion to exclude the [propensity] evidence if its prejudicial effect outweighs its probative value" under section 352. (Falsetta, at p. 907.)
In deciding whether to admit evidence of a prior sexual offense under section 1108, "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." (People v. Falsetta, supra, 21 Cal.4th at p. 917.)
The trial court did not abuse its discretion under section 352 in admitting evidence of the uncharged offense against Leah under section 1108. The court admitted evidence of a single sexual act that occurred contemporaneously with, and was highly relevant to, the charged sexual offenses Serrano committed upon M.R. Not only did the evidence of the uncharged offense explain how it was that M.R. came to disclose the years' of sexual abuse Serrano inflicted upon her, but the evidence also related specifically to M.R. in that, after Serrano grabbed Leah from behind and she felt him grind his pelvis against her buttocks, Serrano stated to Leah, "I thought you were my daughter." Thus, the probative value of this evidence on the issue of Serrano's propensity to commit sexual offenses against M.R. was strong. There was no danger of undue prejudice because this evidence was much less inflammatory than the disputed charges of sexual penetration by a foreign object and oral copulation.
Below, in objecting to the admission of evidence of the uncharged offense, Serrano argued "there is no similarity with respect to the charged offenses because [the] charged offenses involve digital penetration, oral copulation. There's no indication of any grinding or anything to that extent which is really the basis of Ms. Leah S.'s complaint." "Admissibility under Evidence Code section 1108 does not require that the sex offenses be similar; it is enough the charged offense and the prior crimes are sex offenses as defined by the statute." (People v. Jones (2012) 54 Cal.4th 1, 50.) Here the probative value of the evidence substantially outweighed any prejudice, given the relevance of the evidence, as discussed above.
V. Jury Instruction CALCRIM No. 1191A
Serrano contends the trial court erred in instructing the jury with CALCRIM No. 1191A ("Evidence of Uncharged Sex Offense"), requiring reversal of his convictions on counts 5, 7, 9, 11, 13, and 15, because the instruction "allowed jurors to infer guilt of the charged offenses based on propensity, and it confused and misled the jury about the burden of proof, in violation of [his] due process rights."
As given in this case, CALCRIM No. 1191A states:
"The People presented evidence that the defendant committed the crime of lewd act on a minor 14 or 15 years old that was not charged in this case. This crime is defined for you in these instructions.
"You may consider this evidence only if the People have provided by a preponderance of the evidence that the defendant in fact committed the uncharged offense. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
"If the People have not met this burden of proof, you must disregard this evidence entirely.
"If you decide that the defendant committed the uncharged offense, you may, but are not required to, conclude from the evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit the crimes charged in Counts 1 - 15, as charged here. If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the crimes charged in Counts 1 - 15. The People must still prove the charges beyond a reasonable doubt."
Serrano raises this contention to preserve it for further review. He acknowledges the California Supreme Court has rejected this contention in upholding a substantially similar jury instruction, CALJIC No. 2.50.01. (People v. Reliford (2003) 29 Cal.4th 1007, 1011-1012, 1016 ["We do not find it reasonably likely a jury could interpret the instructions to authorize conviction of the charged offenses based on a lowered standard of proof. Nothing in the instructions authorized the jury to use the preponderance-of-the-evidence standard for anything other than the preliminary determination whether defendant committed a prior sexual offense"].) Serrano concedes this court is bound by our high court's decisions. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
VI. Sentencing Error
Serrano contends, and the Attorney General concedes, the matter should "be remanded to permit the trial court to exercise its discretion whether to impose consecutive or concurrent terms on the lewd act counts (counts 1, 2, 4, 6, 8, 10 and 12)."
The trial court sentenced Serrano to 96 years, eight months in prison: the upper term of 16 years on count 3 for continuous sexual abuse of a child under 14 years of age; the upper term of 12 years on each of counts 5, 7, 9, and 11 for sexual penetration by a foreign object upon a child under 14 years of age by force or duress; the upper term of 10 years on count 13 for sexual penetration by a foreign object upon a child 14 years of age or older; the upper term of 10 years for oral copulation upon a child 14 years of age or older by force or duress; two years (one-third the middle term) on each of counts 1, 2, 4, 6, 8, and 10 for lewd act upon a child under 14 years of age; and eight months (one-third the middle term) on count 12 for lewd act upon a child who is 14 years of age by a person at least 10 years older.
In the sentencing memorandum and at the sentencing hearing, the People argued the trial court should sentence Serrano to 96 years, eight months in prison, which the court did, as set forth above. At the same hearing, the prosecutor asserted the court could sentence Serrano to a maximum of 135 years, and the trial court and Serrano's counsel agreed with the assertion. The court stated it had discretion to impose either a full consecutive term or one-third the middle term on each of the lewd act counts (counts 1, 2, 4, 6, 8, 10, and 12) under Penal Code section 288, subdivisions (a) and (c). The court stated it was exercising its discretion to impose one-third the middle term on these counts in consideration of "the fact that Mr. Serrano did not have a criminal record and that he did not perjure himself and take the stand in this matter." The court "impose[d] the high term on the remaining counts," and ordered them to "run fully consecutive to each other."
The trial court did not have discretion to impose full, consecutive terms on the lewd act counts. Under Penal Code section 667.6, subdivision (c), a trial court may impose, "[i]n lieu of the [one-third] term provided in Section 1170.1, a full, separate, and consecutive term . . . for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion." Offenses committed under section 288, subdivision (a) and (c)—the crimes for which Serrano was convicted in counts 1, 2, 4, 6, 8, 10, and 12—are not listed in Penal Code section 667.6, subdivision (e).
The trial court stated it was exercising its discretion to impose a less-than-maximum sentence based on the mitigating factors it cited, as listed above. In fact, the trial court sentenced Serrano to the maximum sentence. The error requires remand for an opportunity for the trial court to properly exercise its sentencing discretion.
We vacate Serrano's sentence and remand the matter for resentencing on the lewd act counts (counts 1, 2, 4, 6, 8, 10, and 12). "On resentencing, the trial court should calculate the appropriate terms for counts [1, 2, 4, 6, 8, 10, and 12] under [Penal Code] section 1170.1, making the necessary discretionary choices concerning the length of the principal term (lower, middle, upper) and consecutive versus concurrent sentences. The terms selected should be added to the full term, consecutive sentences imposed for counts [3, 5, 7, 9, 11, 13, and 15]." (People v. Pelayo, supra, 69 Cal.App.4th at p. 125.)
The trial court has no sentencing discretion on the other counts, which are for crimes listed in Penal Code section 667.6, subdivision (e). (People v. Pelayo (1999) 69 Cal.App.4th 115, 124-125.) Under section 667.6, subdivision (d), "A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions." (Emphasis added.)
DISPOSITION
The sentence is vacated and the matter is remanded for resentencing on counts 1, 2, 4, 6, 8, 10, and 12. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED
CHANEY, J. We concur:
ROTHSCHILD, P. J.
Judge of the Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.