Opinion
D071683
11-15-2017
THE PEOPLE, Plaintiff and Respondent, v. DANIEL ALFREDO SPEAR, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD264978) APPEAL from a judgment of the Superior Court of San Diego County, David M. Rubin, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Daniel Alfredo Spear of sexual penetration of a person under age 18 by a foreign object (Pen. Code, § 289, subd. (h); count 3); oral copulation of a person under age 18 (§ 288a, subd. (b)(1); count 4); and using a minor to perform prohibited acts (§ 311.4, subd. (c); count 5). The court sentenced Spear to prison for two years.
Statutory references are to the Penal Code unless otherwise specified.
The jury found Spear not guilty of three counts of furnishing a controlled substance to a minor (Health & Saf. Code, § 11353, subd. (c); counts 1, 6, 7) and sexual penetration of an intoxicated person (§ 289, subd. (e); count 2).
Spear appeals, contending: (1) the court abused its discretion in denying him probation and sentencing him to prison; and (2) the court prejudicially erred in providing the jury with incorrect written jury instructions. We conclude that Spear's contentions lack merit. We thus affirm.
FACTUAL BACKGROUND
Prosecution
Shortly before her 17th birthday in March 2015, Jane Doe, a junior in high school, met Spear's 17-year-old daughter, and they became friends. Spear was a 44-year-old Border Patrol agent and knew Doe was slightly younger than his daughter. Doe was an only child and was often home alone. She began spending more time at Spear's house where Spear lived with his wife and four children. Doe often spent the night there and became like part of the family.
In the ensuing months, Spear's behavior toward Doe changed. He asked her whether she was a virgin and on another occasion slapped her butt. He sent her text messages and poems and told her he loved her. These interactions made Doe uncomfortable, but she did not tell anyone.
On July 4, 2015, the day before Spear's 45th birthday, Doe spent the night at Spear's house. She fell asleep on the couch but woke up in her friend's bed. She did not know how she got there. She awoke because Spear was touching her vaginal area over her clothes. Doe pretended to be asleep because she did not know what to do. Spear eventually left the room.
After this incident, Spear began buying Doe gifts and giving her money. He also began spending time alone with Doe. Doe was "struggling with life" and confided in Spear about her difficulties.
On October 20, 2015, Spear took Doe to the Dana Hotel in the Mission Bay area of San Diego. Spear told Doe he had booked the room through Groupon. When they arrived at the hotel, Spear checked in while Doe waited in Spear's car. When they went to the room, Spear gave Doe some lingerie outfits and asked her to try on the various outfits. Doe did so and Spear took pictures of Doe wearing each of the outfits with his cell phone. Spear directed Doe how to pose for the photographs and took pictures of her in different areas of the hotel room. Besides taking pictures of Doe, Spear digitally penetrated her vagina and orally copulated her while she wore the lingerie. They left the hotel room about midnight that evening.
After the hotel encounter, Spear sent Doe text messages of a sexual nature and told her he wanted to take her to a hotel again. Doe started to visit Spear's house less frequently. In early December, Doe told her father what happened, and he contacted police.
On December 8, 2015, a San Diego police detective recorded three pretext calls between Doe and Spear. During the calls, Doe referenced their time alone in the hotel room when Spear was "fingering [her]" and "eating [her] out." Although Spear did not specifically acknowledge that those acts occurred, he stated they could do it again. Spear told Doe that he missed her, it hurt him not to see her, and she knew he loved her. He claimed he no longer had the pictures he took of her because his phone was destroyed. He described his experience with Doe in the hotel room as "dream-like." He said he wanted her, that he would love to spend his life with her, and that he had thought about telling his wife. Spear reminded Doe that he had previously told her he would "trade everything" for a kiss from her, but she had told him it was off limits. During one of the calls, Spear disagreed with Doe whether they had ever made out (Doe said they had). Doe clarified that she meant to say "when you ate me out." Spear did not deny that he orally copulated or digitally penetrated Doe. However, he also said he was concerned they were being recorded because he heard an echo in the background.
The recorded calls were played for the jury. Transcripts of these calls are included in the record.
Police discovered about 200 photographs of Doe in lingerie on Spear's cell phone. The photographs were taken on October 20, 2015 between 6:30 p.m. and 11:40 p.m. The photographs had been "deleted" from Spear's phone, but they were preserved on a removable memory card in the phone. Nine of the photographs were admitted into evidence at trial. In those photographs, Doe is wearing two different lingerie outfits. Each outfit is largely see through and Doe is posed in a sexually suggestive manner, at times exposing intimate parts of her body.
Spear's credit card was used to book the hotel room. Hotel records showed he prepaid for the room online and checked in at the hotel in person, at which time his credit card was swiped.
Defense
Spear testified in his defense. He stated that he picked up Doe on October 20, 2015, because she was sending him text messages "talking about suicide." He thought she needed someone to talk to. When he picked her up, she got into his car and said, "Let's go somewhere." Spear had no plans to take Doe to a hotel. Doe had previously mentioned wanting to have a Halloween party at a hotel. Spear began searching for hotels on his phone through Groupon and handed the phone to Doe. Spear noticed Doe had clicked on one of the hotels. It went to a screen to purchase the room, and he could not get out of it. Spear tried to cancel the transaction, but he could not, so he finished the transaction to purchase the room. He took Doe to the hotel to see the room. The air conditioning was not working in the room, so Spear called maintenance. Doe left the room to retrieve her phone charger from Spear's car. She returned with packages of expensive lingerie that were in Spear's car. Spear's wife was going to sell the lingerie. It was not intended as a gift for Doe. Doe went into the bathroom. When she came out she was wearing her regular clothes. She asked Spear to take pictures of her with her cell phone. Spear did so. Doe then asked Spear to take pictures of her with his cell phone, and he did. After Spear took some photographs of Doe with his own cell phone, Doe started to unbutton and pull down her shirt. Spear noticed Doe was wearing the lingerie underneath. Spear left the room upset. He left his wallet, cell phone, and car keys in the room. He walked around for 30 to 45 minutes then returned to the room. Spear knocked on the door and Doe answered. He asked to be let back in the room, but Doe said, "You had your chance." Spear said he wanted his stuff. Doe said, "I don't think so." Spear said he would be back. He left again and this time walked around for a couple of hours. When he returned to the room, he was certain someone else was there based on the way Doe answered him. Spear left for another hour or more then returned to the room. Doe let him in. No one else was in the room. Packages of the lingerie were open in the room. Doe was wearing her regular clothes and texting with someone named Trevor. Doe said she had to wait to pay her photographer. Spear threw the lingerie in the trash. He gathered the rest of his things, returned the room keys in the lobby, and waited in his car for a couple of hours until Doe came out. He drove Doe back to her car. Spear denied digitally penetrating or orally copulating Doe. He denied ever touching Doe inappropriately. He denied ever taking photographs of Doe in lingerie. He claimed he was being sarcastic during his recorded phone calls with Doe, that he could not hear what she was saying at times, and that he only said certain things, such as going back to the hotel with Doe, because he knew he was being recorded.
Spear's wife, Melissa, testified for the defense. She stated that Doe did not have a lot of contact with Spear because of his work schedule. She also testified that she did not suspect that Spear looked at Doe inappropriately. Melissa described events that occurred at her house on July 4, 2015 that suggested it was unlikely Spear rubbed Doe's vagina that night through her clothes while she was sleeping. Doe never told Melissa that Spear touched her inappropriately.
Spear's oldest daughter testified as well. She stated that she and Doe became friends through a home school program. Doe never said anything to Spear's oldest daughter about Spear's behavior. Nor did she tell Spear's oldest daughter that she felt weird around him.
Another one of Spear's daughters also testified in his defense. She stated that she never saw Spear alone with Doe or any inappropriate interactions between them. Also, Doe never told her that Spear did anything inappropriate to her.
Rebuttal
On December 30, 2015, a San Diego police detective interviewed Spear and Spear admitted he took the photographs of Doe posing in lingerie. He admitted purchasing the hotel room through Groupon for two guests. He did not tell the detective that Doe had been suicidal or had talked about suicide. He did not say that Doe had locked him out of the room or that he suspected another person was in the room.
DISCUSSION
I
THE DENIAL OF PROBATION
Spear contends the trial court abused its discretion in denying probation.
" 'A denial or a grant of probation generally rests within the broad discretion of the trial court and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner.' " (People v. Downey (2000) 82 Cal.App.4th 899, 909; see People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) A defendant bears a heavy burden to show abuse of discretion in a denial of probation. (People v. Brown (1969) 271 Cal.App.2d 391, 396.) An abuse of discretion is not demonstrated merely by the argument that other judges might have reached a different result. "The trial court enjoys broad discretion in determining whether a defendant is suitable for probation." (People v. Lai (2006) 138 Cal.App.4th 1227, 1256.) An appellate court should only interfere in " 'a very extreme case.' " (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) A single aggravating factor is legally sufficient to support a trial court's decision to deny probation. (People v. Black (2007) 41 Cal.4th 799, 813.)
Here, the trial court properly exercised its discretion. The court specifically noted the "central tension" in considering probation in this case:
"[O]n the one hand, you have this law abiding citizen, who is, as much as we can tell, not ever been in trouble before. [¶] And then on the flip side of it, we have the same person who engages in this lengthy period of conduct that starts out, as I recall from the testimony, with borderline intrusive comments to Ms. Doe and her friend in the house, his daughter, I think, about different sexual things. That then evolves into this other relationship, which then evolves into what we had here. [¶] So that's -- each of them seizes on their part of the equation and then emphasizes it, and the court is sort of left with trying to find if there is any overlap. And trying to figure out what the right thing to do to protect this community and tailor this, sentence this individual."
The court stated that it found "Spear's testimony during trial to be completely not credible." The court also "was struck" by "how invested [Spear was] in the denial" of the crimes. The court expressed concern about Spear's "elaborate story" to support his denial of what occurred. However, the court noted Spear had been helpful and possessed redeeming qualities. In addition, the court admitted that it was moved by the statements attached to the mitigation statement.
In the end, the court explained that, in considering all the circumstances, it did not "see probation as being the right alternative in this case." In denying probation, the court found multiple aggravating factors existed: (1) the victim was particularly vulnerable (Cal. Rules of Court, rule 4.421(a)(3)); (2) Spear induced a minor to commit or assist in the commission of the crime by grooming Doe for some period of time (rule 4.421(a)(5)); (3) the manner in which the crimes were carried out indicated some planning and sophistication (rule 4.421(a)(8)); and (4) Spear took advantage of a position of trust and confidence (rule 4.421(a)(11)). These findings are supported by the record and are more than sufficient to show the court properly exercised its discretion in denying probation here. (See People v. Black, supra, 41 Cal.4th at p. 813.)
References to any rules are to the California Rules of Court.
Nevertheless, Spear points to a list of mitigating factors that he claims warranted a grant of probation (e.g., a lack of criminal record, willingness to comply with the terms of probation, ability to abide by the conditions of probation, and the impact of prison on Spear). In addition, Spear emphasizes that Doe was only five months shy of her 18th birthday when the sexual activity occurred. These factors were presented to the trial court. The trial court weighed these factors, but ultimately concluded that probation was not appropriate. Spear asserts this was the wrong conclusion. Essentially, Spear asks us to reweigh the mitigating and aggravating factors and conclude probation is mandated. We cannot do so. (See People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825 ["In reviewing [a trial court's determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court's order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances."].) On the record before us, we cannot say the trial court's denial of probation was arbitrary, capricious, or exceeded the bounds of reason.
II
JURY INSTRUCTIONS
The jury convicted Spear of performing prohibited acts with a minor in violation of section 311.4, subdivision (c) (count 5). That subdivision provides:
"Every person who, with knowledge that a person is a minor under the age of 18 years, or who, while in possession of any facts on the basis of which he or she should reasonably know that the person is a minor under the age of 18 years, knowingly promotes, employs, uses, persuades, induces, or coerces a minor under the age of 18 years, or any parent or guardian of a minor under the age of 18 years under his or her control who knowingly permits the minor, to engage in or assist others to engage in either posing or modeling alone or with others for purposes of preparing any representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated
equipment or any other computer-generated image that contains or incorporates in any manner, any film, filmstrip, or a live performance involving, sexual conduct by a minor under the age of 18 years alone or with other persons or animals, is guilty of a felony. It is not necessary to prove commercial purposes in order to establish a violation of this subdivision." (Italics added.)
The prohibited acts involved Spear taking pictures of Doe wearing lingerie while they were in the hotel room. Regarding count 5, Spear contends the trial court committed reversible error by providing the jury with incorrect written jury instructions regarding the definition of "sexual conduct." We reject this contention.
We review a claim of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In determining whether error has been committed in giving jury instructions, we consider the instructions as a whole and assume jurors are intelligent persons, capable of understanding and correlating all jury instructions which are given. (Ibid.) " 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' " (Ibid.)
The parties agree that the trial court properly orally instructed the jury as to the definition of sexual conduct. The court explained: "Sexual conduct means actual or simulated exhibition of the genitals or pubic or rectal area for the purpose of the sexual stimulation of the viewer. An act is simulated when it gives the appearance of being sexual conduct." However, Spear claims the court provided written jury instructions to the jury that contained an incorrect definition of sexual conduct. Whether the court did so is less than clear in the record.
Section 311.4, subdivision (d)(1) defines sexual conduct as follows: "As used in subdivisions (b) and (c), 'sexual conduct' means any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct."
The clerk's transcript includes two copies of jury instructions. The first copy is listed in the table of contents of the clerk's transcript as "JURY INSTRUCTIONS. FILED 9-21-16[.]" At the beginning of the copy of these instructions, the cover sheet states, with the words listed vertically, "JURY INSTRUCTIONS GIVEN REFUSED WITHDRAWN[.]" In this first copy, the CALCRIM No. 1144 instruction defines sexual conduct as "actual or simulated exhibition of the genitals or pubic or rectal area for the purpose of sexual simulation of the viewer. An act is simulated when it gives the appearance of being sexual conduct." There is no dispute that this version of CALCRIM No. 1144 correctly defines sexual conduct and mirrors how the court orally instructed the jury. Although listed in the table of contents as jury instructions that were merely filed, the subject CALCRIM No. 1144 instruction includes a stamp indicating that the instruction was "Requested by Stipulation" and "Given[.]" The stamp also bears the trial judge's signature. In addition, a footer at the bottom of these instructions states, "People v. SPEAR, Daniel A. - SCD264978: Post-trial instructions[.]"
The second copy of the jury instructions is listed in the table of contents of the clerk's transcript as "JURY INSTUCTIONS GIVEN. FILED 9-22-16[.]" At the beginning of the copy of these instructions, the cover sheet states, with the words listed vertically, "JURY INSTRUCTIONS GIVEN REFUSED WITHDRAWN" with the word "GIVEN" circled. In this second copy, the CALCRIM No. 1144 instruction defines sexual conduct as "actual or simulated disrobing for sexual purposes. An act is simulated when it gives the appearance of being sexual conduct." This copy of CALCRIM No. 1144 also contains handwritten edits and, like the first copy of the CALCRIM No. 1144 instruction, includes a stamp signed by the trial judge indicating that the instruction was "Requested by Stipulation" and "Given[.]" In addition, a footer at the bottom of these instructions states, "People v. SPEAR, Daniel A. - SCD264978: Pre-trial instructions[.]"
Spear insists the second copy of the jury instructions was the one provided to the jury during deliberations. To this end, Spear points out the cover sheet of the first copy of the instructions did not have the word "GIVEN" circled, and the cover sheet of the second copy did. Moreover, Spear emphasizes that the trial court told the jury that it would receive a written copy of the instructions and mentioned that certain portions were altered by hand. Spear notes the first copy of instructions does not contain any handwritten alterations and the second copy does.
We agree that Spear has correctly described the respective cover pages for the two copies of the jury instructions. However, we do not find the fact the second copy's cover page includes a circled "GIVEN" as definitively establishing that the second copy was provided to the jury. Spear's argument ignores other indicia that make it much less clear that the second copy was provided to the jury.
For example, Spear overlooks that both copies of the jury instructions included a stamp on their respective CALCRIM No. 1144 instruction with the trial judge's signature and indicating that the instruction was "Requested by Stipulation" and "Given." He also disregards the potential meaning of the differing footers on the two copies of the instructions. Spear observes that written jury instructions were provided to the jury after trial for the purposes of deliberation. Thus, the written jury instructions were provided to the jury posttrial. The first copy of the jury instructions includes a footer indicating they were posttrial instructions. The second copy of the jury instructions includes a footer indicating they were pretrial instructions. Thus, the footer on the first copy of the instructions implies that those instructions were the ones given to the jury after trial when it was deliberating.
Additionally, we believe Spear overstates the importance of the court's comments about handwritten alterations to the instructions. The court made the subject comments when he began to read the jury instructions:
"Members of the jury, let me now instruct you on the law that applies to this case. I'm going to give you these exact instructions, this book, to take with you into the jury room. These instructions you will see may be printed. They may be typed out, or they may be written out by hand. Certain sections as you look at them may have been crossed out. Some may have been added. I want you to disregard any deleted sections. I don't want you to try to guess what those deleted sections might have been. Only consider the final version of these instructions in your deliberations."
The court did not tell the jury that the written instructions would have handwritten alterations. At most, it stated that the jury instructions may contain such alterations. Further, Spear glosses over the fact that these preliminary comments also support the inference that the court provided the correct written version of CALCRIM No. 1144 to the jury. The court stated that it would give the jury "these exact instructions" from the "book" it was reading as it instructed the jury. It is not disputed that, while reading the instructions from this book, the court provided the correct definition of sexual conduct within the context of CALCRIM No. 1144.
With this foundation in mind, we deem it important to discuss an appellant's burden on appeal. "The very settled rule of appellate review is a trial court's order/judgment is presumed to be correct, error is never presumed, and the appealing party must affirmatively demonstrate error on the face of the record." (People v. Davis (1996) 50 Cal.App.4th 168, 172; see People v. Turner (1992) 7 Cal.App.4th 913, 917 ["error is never assumed and must be affirmatively shown"].) Unless the contrary is shown, an appellate court must presume the trial court was aware of and properly performed its duties. (People v. Stowell (2003) 31 Cal.4th 1107, 1114; Evid. Code, § 664.)
Here, Spear has not carried his burden to demonstrate error. Specifically, he has not shown that the trial court provided improper written jury instructions to the jury for deliberations. At most, the record is ambiguous regarding which copy of written instructions the jury received. In addition, it is undisputed that the court properly orally instructed the jury. Against this backdrop, we must presume the trial court properly performed its duties, including that it provided the jury with the correct written instructions. (See People v. Stowell, supra, 31 Cal.4th at p. 1114; Evid. Code, § 664.)
Nevertheless, even if we were to assume that the trial court provided the jury with written instructions that incorrectly defined sexual conduct, we would find such error harmless. Generally, an instructional error that misstates an element of an offense is not deemed a structural defect in the trial mechanism and is not automatically reversible. (See People v. Flood (1998) 18 Cal.4th 470, 497, 502-503 (Flood).) Rather, such an error is subject to a harmless error analysis and would be reversible "unless it can be shown 'beyond a reasonable doubt' that the error did not contribute to the jury's verdict." (People v. Sengpadychith (2001) 26 Cal.4th 316, 326, citing Chapman v. California (1967) 386 U.S. 12, 24.) A harmless error conclusion is warranted where "all of the evidence at trial relevant to the issue in question [is such that] there is no rational basis upon which the instructional error could have affected the jury's verdict." (Flood, supra, at p. 505.) We find just a situation to exist here.
Here, it is undisputed that the photographs of Doe, on which Spear's conviction under count 5 is based, depicted sexual conduct. The subject photographs are of Doe wearing lingerie while posing suggestively. The trial court described these pictures as follows:
"[B]ut the focal point of some of the photographs clearly the genital and pubic region of Ms. Doe, the setting was the bedroom of a hotel with a person of majority, it was clearly sexually suggestive. There are several photographs the court would consider of unnatural poses. I'm looking at People's 11, People's 12, People's 13, People's 14, and People's 15, in which her genitalia [is] visible through the negligée. People's 17, the conduct, especially if you look at People's 10, 12, 13
suggests a sort of coyness commonly associated with a willingness to engage in sexual activity. The lingerie is inappropriate for someone of her age with a person of majority. She is partially nude in some photographs.
We agree with the trial court's description of the photographs. They are textbook examples of photographs depicting sexual conduct, complete with Doe's pubic area visible through the sheer lingerie in one of the photographs, her partially uncovered breast in another, and multiple pictures of Doe's uncovered backside. Further, we cannot fathom how any rational juror would not conclude these photographs were taken for the sexual stimulation of Spear. Indeed, this would be the only conclusion a juror could reach, considering Spear took the photographs of Doe while she was in the hotel room and the jury found that Spear digitally penetrated and orally copulated her on the same occasion as the pictures were taken.
Further, there is no evidence in the record that, at trial, Spear argued that the subject photographs did not depict sexual conduct. In addition, he makes no such argument in either his opening or reply brief here. Simply put, even if we were to assume the court provided the jury with the written instructions that incorrectly defined sexual conduct, any such error was harmless beyond a reasonable doubt based on the record before us. (See Flood, supra, 18 Cal.4th at pp. 504-505.)
Instead, Spear argued that he did not take any inappropriate photographs of Doe wearing lingerie. --------
DISPOSITION
The judgment is affirmed.
HUFFMAN, J. WE CONCUR: McCONNELL, P. J. AARON, J.