Opinion
F084502
08-07-2024
THE PEOPLE, Plaintiff and Respondent, v. RAFAEL VILLALOBOS HERNANDEZ, Defendant and Appellant.
Gillian Black, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County, No. 21CMS2909 Kathy Ciuffini, Judge.
Gillian Black, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
INTRODUCTION
On February 15, 2022, a jury convicted defendant Rafael Villalobos Hernandez of several counts of sexual abuse against E.M. that occurred between April 26, 2014 and April 25, 2020. Subsequently, the trial court sentenced defendant to a total aggregate determinate term of 63 years, plus an indeterminate term of 15 years to life.
Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first names or initials.
We will discuss in detail below all of the offenses by which defendant was convicted.
On appeal, defendant contends: (1) the trial court prejudicially erred when it permitted the prosecutor to file a second amended information because it "changed the offense charged as [to] count 8, and substantially altered the time-frames and/or the surrounding circumstances of the offenses charged in counts 1, 2, 3, 4, 5, 7, 8, and 9, from what had been established at the preliminary hearing"; (2) there lacks substantial evidence to support his conviction on counts 7 or 8 because "[t]he evidence presented at trial does not support a finding that [he] used 'force, violence, duress, menace, or fear of immediate and unlawful bodily injury to another person' [i.e., E.M.] ... requiring reversal of both counts"; (3) the trial court prejudicially erred "when it failed to instruct the jury with CALCRIM No. 3185 as to counts 7 and 8 ... [and] the error was not harmless, requiring reversal"; (4) he received ineffective assistance of counsel (IAC) when defense counsel elicited testimony from E.M. during cross-examination regarding her fear of defendant, "failed to present exculpatory evidence to the jury," "fail[ed] to object to Detective Solis as an improper rebuttal witness"; and "failed to move to strike counts 2 and 3 from the initial information, pursuant to [Penal Code] section 995, where the time-frames charged were outside the time-frames established at the preliminary hearing." (Some capitalization and boldface omitted.) Finally, defendant contends this matter should be remanded for resentencing because the trial court improperly sentenceds him pursuant to section 667.6, as to counts 2 through 6 (§ 288, subd. (a)), which is not an offense enumerated in section 667.6, subdivision (e). As to this individual claim, the People concede error.
All further statutory references are to the Penal Code, unless otherwise stated.
We accept the People's concession and conclude the trial court erred in sentencing defendant on counts 2 through 6 pursuant to section 667.6. Therefore, we remand this matter for resentencing. Further, although we conclude the trial court erred in not instructing the jury with CALCRIM No. 3185, we find that any error was harmless beyond a reasonable doubt. As to defendant's remaining claims, they lack merit. Accordingly, we affirm the judgment.
STATEMENT OF THE CASE
On February 10, 2022, the Kings County District Attorney filed a second amended information charging defendant with the oral copulation of E.M., a child 10 years old or younger (§ 288.7, subd. (b), count 1); a lewd act upon E.M., a child under the age of 14 years, to wit, touching of her breasts at the first home (§ 288, subd. (a), count 2); a lewd act upon E.M., a child under the age of 14 years, to wit, touching of her vagina at the first home (§ 288, subd. (a), count 3); a lewd act upon E.M., a child under the age of 14 years, to wit, his tongue in her mouth (§ 288, subd. (a), count 4); a lewd act upon E.M., a child under the age of 14 years, to wit, the touching of her butt in a truck (§ 288, subd. (a), count 5); a lewd act upon E.M., a child under the age of 14 years, to wit, the touching of her vagina in the shower at the third home (§ 288, subd. (a), count 6); sexual penetration by a foreign object upon E.M., a child under the age of 14 years (§ 289, subd. (a)(1)(B), count 7); sodomy by use of force upon E.M., a child under the age of 14 years (§ 286, subd. (c)(2)(B), count 8); and a forcible lewd act upon E.M., a child under the age of 14 years, to wit, the touching of his penis in the bathroom (§ 288, subd. (b)(1), count 9). The second amended information further alleged the following factors in aggravation:
We will discuss in detail the circumstances surrounding the filing of the information, the first amended information, and the second amended information in part I. of the Discussion.
"As related to the crime
"(1) The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness;
"(2) The victim was particularly vulnerable[;]
"(3) The manner in which the crime was carried out indicates planning, sophistication, or professionalism;
"(4) The defendant took advantage of a position of trust or confidence to commit the offense[.]
"As related to the defendant "(1) The defendant has engaged in violent conduct that indicates a serious danger to society[;]
"(2) The defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness;
"(3) The defendant has served a prior term in prison or county jail under section 1170[, subdivision ](h);
"(4) The defendant was on probation, mandatory supervision, postrelease community supervision, or parole when the crime was committed[.]"
On February 15, 2022, the jury found defendant guilty on all counts and found true all aggravating factors as applied to each individual count. Subsequently, as to count 1, the trial court sentenced defendant to an indeterminate term of 15 years to life. As to count 8, the trial court sentenced defendant to the upper term of 13 years. As to count 2, the trial court sentenced defendant to the middle term of six years, to run consecutive to count 8. As to count 3, the trial court sentenced defendant to the middle term of six years, to run consecutive to count 8. As to count 4, the trial court sentenced defendant to the upper term of eight years, to run consecutive to count 8. As to count 5, the trial court sentenced defendant to the upper term of eight years, to run consecutive to count 8. As to count 7, the trial court sentenced defendant to the upper term of 12 years, to run consecutive to count 8. As to count 9, the trial court sentenced defendant to the upper term of 10 years, to run consecutive to count 8. Finally, as to count 6, the trial court sentenced defendant to the middle term of six years, but stayed this sentence pursuant to section 654. The total aggregate sentence imposed was a determinate term of 63 years, plus an indeterminate term of 15 years to life.
SUMMARY OF FACTS
I. Prosecution Case-in-chief
A. Background
E.M. was born in April 2008, and lived with her mother (Sonia), defendant (stepfather), and her three brothers in Hanford. In 2012, when E.M. was four years old, Sonia entered into a romantic relationship with defendant. During their relationship, defendant lived with Sonia and her children at three different houses all located in Hanford.
B. The Sex Offenses
1. Incident at the First House ( Counts 2 and 3 )
E.M. stayed in a room with defendant and Sonia at the first house. Sonia and defendant had their "bed on one side of the room, and [E.M.'s] small bed ... was up against the wall on the opposite side" of the room. While at the first residence, when E.M. was either six or seven years old, she and defendant were lying on the bed in their shared room. Sonia was not home at the time. During this time, defendant touched E.M.'s chest and rubbed his fingers against her vagina.
E.M. described her vagina as her "bottom."
2. Incidents at the Third House ( Counts 1 and 4-9 )
Subsequently, when E.M. was either six or seven years old, the family moved to a second house. E.M. was either seven or eight years old when the family moved from their second house into their third house. This third house had "three rooms, two bathrooms, and the kitchen was like right next to the living room." E.M. had her own room.
Sonia testified the family moved from their first home to their second home when E.M. "was four [because] she wasn't attending school yet." However, Sonia was unsure of E.M.'s birthday and she could not remember if her son was born on October 29, 2016, or October 30, 2017.
E.M. testified the family moved to their third home when Sonia was pregnant with her and defendant's son. Sonia's son was born on October 29, 2016, which would place E.M.'s age at the time of the incident between seven and eight years old.
a. Offense Alleged in Count 1
During one incident, when E.M. was either seven or eight years old, defendant came into E.M.'s room to tuck her into bed. Defendant tucked E.M. into bed "and he [then] pulled out his front part and told [her] to suck it." E.M. kept "saying no, and [defendant] just kept saying come on, come on, just do it, and so [she] did it." Defendant had his hands "[o]n his sides" and he "[j]ust stood up from the bed, but [E.M.] was sitting down." He then "put one of his hands on the back of [her] head [¶] ... [¶] [and p]ush[ed her] head back and forth" while his penis was inside her mouth. This incident ended when Sonia called for defendant.
b. Offenses Alleged in Counts 4 and 5
In a separate incident, when E.M. was either nine or ten years old, defendant drove E.M. to a store to get candy or drinks. On their way to the store, defendant told E.M., who was sitting in the front passenger seat, that "[i]f [she] wanted candy [s]he would- either give him a kiss or touch him." Defendant then kissed E.M. and "started to put his tongue in [her] mouth." He then drove "a different direction" and "placed [E.M.] on his lap." Specifically, defendant placed E.M. on his lap and faced her towards him and "grabb[e]d [her] waist." Further, defendant grabbed E.M.'s buttocks and rubbed his hand against her back. Although they were fully clothed, E.M. testified she could feel defendant's penis against her vagina. Eventually, defendant pulled the vehicle over to the side of the road, E.M. "got off of on top of him" and returned to the passenger seat, and they then drove home.
Initially, E.M. testified this incident occurred when she was either "[s]ix or seven" years old and lived "at the first house." However, later on in her testimony, she confirmed with the prosecutor this incident occurred when she was "[t]en or nine" years old, her brother was "a couple months" old, and they were living at the third house.
c. Offenses Alleged in Counts 6 and 7
In a separate incident, when E.M. was 10 years old, defendant walked into the bathroom while she was taking a shower. Sonia was in the living room at the time. Defendant entered the shower and began "washing [E.M.'s] hair, and then he was washing [her] body and started touching [her]." He then inserted his fingers into E.M.'s vagina. Defendant asked E.M. "if it felt good"; E.M. testified, "It hurt." Eventually, defendant stopped and left.
E.M. testified she was 11 years old when this incident occurred. However, E.M. testified her brother was "months old" and agreed with the prosecutor this would have made her 10 years old when the incident occurred.
d. Offense Alleged in Count 8
In a separate incident, while Sonia and E.M.'s brothers were away, defendant called E.M. into his room. Defendant "was in the bathroom and he sat [E.M.] on the counter and started just touching [her]." Defendant began touching E.M.'s chest and vagina. Defendant asked E.M. "[i]f it felt good" and then "turned [E.M.] around," placed his hands on her waist, and started touching her "butt" with his penis while her pants "were off, but not completely." Specifically, E.M. testified he inserted his penis "inside" her anus. E.M. "told [defendant] that it hurt[]" and at this point "[h]e stopped."
e. Offense Alleged in Count 9
In a separate incident, when E.M. was about 11 years old, defendant "took [her] in the bathroom and sat [her] on the counter and started touching [her]." Defendant then "pulled [E.M.'s] pants off" and started touching her vagina with his hands. He then "grabbed [E.M. tightly] by [her] wrist" and "guided [her] hand to touch him." Defendant made E.M. move her hand "[u]p and down" on his penis. He then started moaning and it ended when E.M. observed defendant ejaculate on her hand. Defendant then told E.M. to wash her hands, which she did.
C. Other Conduct
On another occasion, E.M. and defendant were home alone watching a movie in the living room at the third house. They were spooning while fully clothed underneath a blanket when defendant started touching E.M.'s vagina with his fingers and penis. He rubbed his penis aggressively against E.M.'s vagina, causing it to hurt. Defendant also grabbed her waist and pulled her in, and his penis then touched her buttocks. Sonia then came home and defendant "just got up" and stopped.
Further, on a separate occasion at the third house, E.M. was inside her bed ready to go asleep when defendant tucked her in. Defendant walked in, "grabbed [her], put [her] on his chest and started kissing [her]." He "put his tongue in [her] mouth." E.M. wore a "pajama dress[]" and defendant then "grabbed [her] and put [her] on top of him" and touched her buttocks with his hands.
On several occasions, defendant would come into E.M.'s room to hug her goodnight. He would pick her up and face her in a way that his penis touched her vagina. E.M. thought this was "[w]eird [¶] .. .|¶] [b]ecause at that point [she] knew it was wrong."
Finally, while at their first house, defendant showed E.M. a pornographic video on his phone of a man and woman having sex. Further, as to several of these incidents, E.M. was afraid to tell Sonia what happened because she had observed defendant hit her mom a couple of times, and her brothers once, and he had told E.M. "[t]hat he would hurt either one of us" if she were to tell anyone about the abuse.
On cross-examination, E.M. admitted she was caught sending inappropriate messages via Snapchat and, as a punishment, her cell phone was taken away. Further, she admitted she was expelled from school for bringing alcohol to class.
"Snapchat is a phone application that, among other things, allows users to post 'stories.'" (In re A.G. (2020) 58 Cal.App.5th 647, 650.) "A story is a photograph or video posted by a Snapchat user. The user can add captions and other effects to the photographs and videos." (Id. at pp. 650-651.)
D. The "Fresh Complaint" Disclosures
In late January 2020, E.M. moved in with her father (Daniel) in Anaheim. E.M. eventually told her paternal grandmother about defendant's abuse. Neither E.M.'s grandmother nor E.M. herself wanted to report the abuse. Specifically, E.M.'s grandmother "told [her] that people have different thoughts about what will happen." Further, E.M. told her stepsisters-the daughters of Angelica and Daniel-about defendant's abuse. On May 3, 2021, Angelica was approached by her daughters, who told her she should speak with E.M. Angelica then called E.M. via FaceTime and E.M. told her about defendant's abuse. During this call, E.M. "cr[ied] really loud." Subsequently, Angelica and Daniel called the Hanford Police Department and reported what had happened.
FaceTime is an application that allows video calling on Apple electronic devices. (See <https://www.digitaltrends.com/mobile/how-to-use-facetime> [as of Aug. 7, 2024], archived at <https://perma.cc/PNV3-GXTR>.)
E. Child Sexual Abuse Accommodation Syndrome (CSAAS) Evidence
Dr. Anthony Urquiza, a psychologist and professor at the University of California, Davis Medical Center, testified as an expert in CSAAS. He testified there are five components of CSAAS: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed and unconvincing disclosure; and (5) retraction and recantation. He did not provide an opinion as to whether E.M. was sexually abused.
II. Defense Case-in-chief
Defendant testified on his own behalf. He testified his relationship with Sonia began when he was 15 years old. Defendant met E.M. when she was three years old and she began to see him as a father figure and they "got very close, very close." He denied ever touching E.M. inappropriately and acknowledged that he helped her shower, but only for hygienic purposes. Specifically, defendant testified that E.M. never saw his penis, he denied making E.M. touch his penis, and denied having any sexual contact with E.M. Defendant also testified he got out of prison on August 5, 2020, and lived at the third house only after E.M. was already living with Daniel in Anaheim.
Defendant further testified his relationship with Sonia was "a little bit rocky" and, at one point, he was convicted of domestic violence for physically harming her. He testified he did not believe the children were aware of the domestic violence, but did acknowledge that E.M. testified she was aware of it.
Further, defendant testified he was a gang member, and testified the gang has a code of conduct and that they look down on individuals who commit crimes against children. Specifically, a gang member who commits sex crimes against children would face consequences. Defendant admitted he had engaged in bad behavior in his life, but testified he never inappropriately touched E.M.
III. Prosecution Rebuttal
A. Detective Solis's Testimony
Detective Nasario Solis, a master reserve officer with the Tustin Police Department in Orange County, testified he was asked by the Hanford Police Department to set up a forensic "CAST" interview with E.M. On May 5, 2021, Solis conducted this interview in Orange.
Solis testified a master reserve officer is "someone who has retired from law enforcement and ... c[a]me back to work as a police officer fully sworn, [with the] same duties as a fully sworn officer."
Solis testified "[a] CAST interview is an interview that is conducted by a trained forensic interviewer .. It is a social worker that [has] been trained hundreds and hundreds of hours on conducting non leading interviews of both sexual assault victims, domestic violence victims, witnesses, homicide witnesses, a variety of different interviews. And this interview is conducted on videotape and audio tape in a room with the interviewer and the victim or witness is in another room. And there is a two way glass in between where the District Attorney, a detective or anybody else involved in the case will view the interview as it is being conducted real time so we get a chance to see the individuals answering the questions."
During this interview, E.M. "mentioned on at least two occasions how [the abuse] was painful both to her mouth area and to her vaginal and anal area." Specifically, "[E.M.] described that when [defendant]-on one of the occasions when his penis entered her vaginal area and he thrusted it hard into her it was painful to her, it hurt very much." Further, she stated defendant "had stuck his fingers inside of her and rubbed the outside, but also entered into her vagina and hurt her a lot because he was rubbing very hard." She also stated that on "one occasion when [defendant] had penetrated her that he asked her to touch his penis and she did ... she didn't want to, but she did." E.M. "mentioned that [defendant] had asked her to rub [his penis] or to stroke it, and she did [¶] .. [¶] [and] it was very hard, and that at some point a whitish liquid came out."
E.M. also "described several events when she was in the shower naked and [defendant] came in." Specifically, E.M. described one event when "he came in and he was telling her that she needed help with her hair, and she was naked in the shower and .. he started to massage her and kiss her, and then also started to rub her vaginal area." She also described an event where defendant walked into the bathroom and "told her that he wanted to do something to her and then . pulled out his penis and told her to touch his penis, and then he placed his penis in her mouth." E.M. also stated defendant "would often kiss her in the mouth with his tongue."
E.M. also described an incident where defendant drove her to the store to get candy. Defendant "brought [E.M.] to the store, placed her on top of his lap and started massaging her back, pulled his penis out, and then inserted his penis into her anus." She stated "one of [defendant's] hands was on his penis, and the other one was on the small of her back." E.M. described defendant's penis as "hard and hot as he was doing these" things. E.M.'s clothes were on during this event.
B. Detective Edgar Aguayo's Testimony
On June 3, 2021, Detective Edgar Aguayo of the Hanford Police Department interviewed defendant. During the interview, defendant acknowledged he would shower E.M., but told Aguayo he never washed E.M. with a washcloth, nor did he ever leave the bathroom door open when he bathed her.
DISCUSSION
I. The Trial Court Properly Exercised Its Discretion When Granting the Prosecutor Leave to File a Second Amended Information
Defendant contends the trial court violated his constitutional rights and prejudicially erred when it permitted the prosecutor to file a second amended information, which "changed the offense charged as [to] count 8, and substantially altered the time-frames and/or the surrounding circumstances of the offenses charged in counts 1, 2, 3, 4, 5, 7, 8, and 9, from what had been established at the preliminary hearing." (Capitalization and boldface omitted.) We disagree.
A. Additional Factual Background
1. The Complaint, Preliminary Hearing, and the Information
On June 4, 2021, the Kings County District Attorney charged defendant in a felony complaint with the following:
Count 1: Oral copulation or sexual penetration with E.M., a child 10 years old or younger, to wit, at the first home, with a date range of April 26, 2012 to April 26, 2014 (§ 288.7, subd. (b));
Count 2: Lewd act upon E.M., a child under the age of 14 years, to wit, touching of her breasts at the first home, with a date range of April 26, 2012 to April 26, 2014 (§ 288, subd. (a));
Count 3: Lewd act upon E.M., a child under the age of 14 years, to wit, touching of her vagina at first home, with a date range of April 26, 2012 to April 26, 2014 (§ 288, subd. (a));
Count 4: Lewd act upon E.M., a child under the age of 14 years, to wit, tongue in her mouth at the second house, with a date range of April 26, 2015 to April 26, 2017 (§ 288, subd. (a));
Count 5: Lewd act upon E.M., a child under the age of 14 years, to wit, touching of her butt in a truck, at the second house, with a date range of April 26, 2015 to April 26, 2017 (§ 288, subd. (a));
Count 6: Lewd act upon E.M., a child under the age of 14 years, to wit, touching her vagina in the shower at the third home, with a date range of April 26, 2018 and April 26, 2019 (§ 288, subd. (a));
Count 7: Sexual penetration by a foreign object upon E.M., a child under the age of 14 years, by means of force, violence, duress, menace and fear of immediate and unlawful bodily injury, to wit, in the shower at the third home, with a date range of April 26, 2018 to April 26, 2019 (§ 289, subd. (a)(1)(B));
Count 8: Forcible rape upon E.M., a child under the age of 14 years, by means of force, violence, duress, menace, and fear of immediate and unlawful bodily injury (§ 261, subd. (a)(2));
Count 9: Forcible lewd act upon E.M., a child under the age of 14 years, by use of force, violence, duress, menace, and threat of great bodily harm, to wit, touching of defendant's penis in the bathroom, with a date range of April 26, 2018 to April 26, 2019 (§ 288, subd. (b)(1)).
On October 12, 2021, a preliminary hearing was held. The prosecution called Detective Aguayo as their sole witness. Aguayo testified to the incidents E.M. described in the video-taped interview. E.M. described the incidents "by [her] age and where she lived a[t] houses during the age time period when she was in that house." She referred to the houses by number (i.e., first house, second house, or third house). As to almost every incident, "she referenced it to her younger brother, she said her younger brother was about one year old when this occurred." Specifically, during cross-examination, the following exchange occurred between defense counsel and Aguayo:
"[DEFENSE COUNSEL]: Officer, during your interviews were you ever able to solidify certain days when these incidents occurred?
"[DETECTIVE AGUAYO]: Can you-can you specify which interview, sir?
"[DEFENSE COUNSEL]: During the CAST interview that you viewed, were any day or specific dates ever cited by the alleged victim?
"[DETECTIVE AGUAYO]: No, sir.
"[DEFENSE COUNSEL]: So basically what she did was she linked up her memory to where she was living and the age of her brother?
"[DETECTIVE AGUAYO]: Correct.
"[DEFENSE COUNSEL]: And that's how you were able to kind of tell what-like an idea of when these incidents allegedly occurred?
"[DETECTIVE AGUAYO]: Yes, sir."
Specifically, as to count 1, E.M. reported that defendant forced her to orally copulate him in the first house when she was four or five years old. As to counts 2 and 3, E.M. reported that defendant touched her breasts (count 2) and vagina (count 3) in the shower at the first house when she was four or five years old. As to counts 4 and 5, E.M. reported that while in a truck, defendant kissed her with his tongue (count 4) and touched and squeezed her butt (count 5) when she was seven or eight years old. As to counts 6 and 7, E.M. reported that defendant touched her vagina (count 6) and then penetrated her vagina with his fingers (count 7) in the shower when she was "9 and 12" years old. As to count 8, E.M. reported that while in the third house, defendant made her pull down her pants and "he put her on the counter and then put his penis inside her." Finally, as to count 9, E.M. reported that after defendant "put his penis inside her," she then placed her hand on defendant's penis and stroked it until he ejaculated. Based on this evidence, the trial court held defendant to answer on all crimes alleged in the complaint.
On October 13, 2021, the Kings County District Attorney filed an information. The only differences between the initial complaint and information were that: (1) counts 2 and 3 of the information were alleged to have occurred from "April 26, 2016 to April 26, 2014," rather than "April 26, 2012 to April 26, 2014" and (2) count 4 was alleged to have occurred from "April 26, 2015 to April 26, 2016," rather than "April 26, 2015 to April 26, 2017."
This date was likely due to a typographical error and "2016" should have been "2012."
2. The First Amended Information and the Second Amended Information
On February 7, 2022, the Kings County District Attorney filed a first amended information without objection from defense counsel. As to count 1, the first amended information deleted the "at the first home" language. Further, it also reversed the order of dates in counts 2 and 3 from "April 26, 2016 to April 26, 2014" to "April 26, 2014 to April 26, 2016."
The prosecutor provided no explanation regarding his reasoning for omitting the "at first home" language from count 1.
At the close of the prosecution's case-in-chief, the prosecutor sought leave to file a second amended information to "conform to proof" based on E.M's testimony at trial. The proposed amendments were as follows:
Count 1: Oral copulation with E.M., a child 10 years old or younger, to wit, penis in mouth, with a date range of June 1, 2016 to October 29, 2017 (§ 288.7, subd. (b));
Count 2: Lewd act upon E.M., a child under the age of 14 years, to wit, touching of her breasts at the first home, with a date range of April 26, 2014 to April 25, 2016 (§ 288, subd. (a));
Count 3: Lewd act upon E.M., a child under the age of 14 years, to wit, touching of her vagina at the first home, with a date range of April 26, 2014 to April 25, 2016 (§ 288, subd. (a));
Count 4: Lewd act upon E.M., a child under the age of 14 years, to wit, tongue in her mouth, with a date range of April 26, 2017 to April 25, 2019 (§ 288, subd. (a));
Count 5: Lewd act upon E.M., a child under the age of 14 years, to wit, touching of her butt in the truck, with a date range of April 26, 2017 to April 25, 2019 (§ 288, subd. (a));
Count 7: Sexual penetration by a foreign object upon E.M., a child under the age of 14 years, by means of force, violence, duress, menace, and fear of immediate and unlawful bodily injury, to wit, in the shower at the third home, with a date range of April 26, 2017 to April 25, 2020 (§ 289, subd. (a)(1)(B));
Count 8: Sodomy by use of force upon E.M., a child under the age of 14 years, by means of force, violence, duress, menace, and fear of immediate and unlawful bodily injury, to wit, in Sonia's bathroom, with a date range of June 1, 2016, to January 31, 2020 (§ 286, subd. (c)(2)(B));
Count 9: Lewd act upon E.M., a child under the age of 14 years, by use of force, violence, duress, menace, and threat of great bodily harm, to wit, touching of defendant's penis in the bathroom, with a date range of April 26, 2019 to April 25, 2020 (§ 288, subd. (b)(1)).
The prosecutor did not request any amendments to count 6.
Defense counsel objected to the filing of the second amended information. He argued he "didn't have notice of the date ranges [and] didn't have notice of-that there was a sodomy at all." Specifically, defense counsel argued the following:
"[B]ut just looking into the case the investigation would have potentially changed based on different date ranges, and based on different acts that are alleged in the Second Amended Information. [¶] ... [¶]
"Because of the lack of notice and inability to complete investigation based on these date ranges and these charges. My client is prejudiced because at this point we don't have the ability to do further investigation and look into these additional allegations and date ranges."
The following exchange then occurred between the trial court and prosecutor:
"THE COURT: So this is a young child who is 13 years old. She has been-based on Dr. Urquiza's testimony he indicated that a disclosure[] of sexual abuse by young children is a process, and therefore the process could include being in a jury trial and having to face the person who did these things to her, and being placed under oath knowing that she has to tell the truth, and it is very conceivable that a new act of sexual assault would come out during testimony. And I think any competent and intelligent attorney, which I know you are, [defense counsel], would recognize that.
"Based on your statement with respect to how you have been prejudiced and the notice issue, you haven't set forth sufficiently in enough detail the prejudice that your client has suffered. And you do agree with me he is not prejudiced in terms of custody time.
"[Prosecutor], do you want to be heard with respect to his arguments?
"[PROSECUTOR]: Your Honor, I would agree with the Court's opinion. I would note that at one point E.M. said sometimes something would happen, and I focussed [sic] her on one event. And Dr. Urquiza's testimony did explain that sometimes memories fragment when it happens enough times, and it is hard to remember which one is which in the details.
"And then second I would note for the record that the First Amended Information, which [has] the same date ranges as the Information, was from April 2012 to April 2019. And the Court would give a jury instruction to the jury that it is on or about those dates. The prosecutor doesn't need to prove the exact date. The Second Amended Information contains the date ranges from April 2014 to January 2020. And so I would submit to the Court that it is the substantially same date ranges that the defense would have to investigate. And any such investigation done in this case would have encompassed substantially all of these date ranges. And I would submit. [I] ... [¶]
"THE COURT: [Defense counsel], based on the First Amended Information-let me look at the Amended Information. The date range is actually 2012 with the latest date being April 26, 2019 and you would have been on notice sexual assaults were occurring just in a general process.
"I am going to grant your motion to amend to conform to proof and allow the filing of the Second Amended Information.. . ."
The second amended information was then filed and defendant was arraigned on the second amended information.
3. The Differences Between the First Amended Information and the Second Amended Information
The differences between the first amended information and the second amended information were as follows:
Count 1: The date range was changed from "April 26, 2012 to April 26, 2014" to "June 1, 2016 to October 29, 2017" and the theory alleged was only oral copulation.
Counts 2 and 3: The date range was changed from "April 26, 2014 to April 26, 2016" to "April 26, 2014 to April 25, 2016.
Count 4: The date range was changed from "April 26, 2015 to April 26, 2016" to "April 26, 2017 to April 25, 2019" and the language "at the second house" was omitted.
Count 5: The date range was changed from April 26, 2015 to April 26, 2017" to "April 26, 2017 to April 25, 2019" and the language "at the second house" was omitted.
Count 7: The date range was changed from "April 26, 2018 to April 26, 2019" to "April 26, 2017 to April 25, 2020."
Count 8: The charge was amended from alleging the forcible rape of E.M., a child under the age of 14 years, with a date range of April 26, 2018 to April 26, 2019 (§ 261, subd. (a)(2)), to sodomy by use of force, a child under the age of 14 years, to wit, in Sonia's bathroom, with a date range of June 1, 2016 to January 31, 2020 (§ 286, subd. (c)(2)(B)).
Count 9: The date range was changed from "April 26, 2018 to April 26, 2019" to "April 26, 2019 to April 25, 2020."
B. Applicable Law
"Due process requires that a criminal defendant be advised of the charges against him so that he has a reasonable opportunity to prepare and present a defense and not be taken by surprise by evidence offered against him at trial." (People v. Fernandez (2013) 216 Cal.App.4th 540, 554 (Fernandez), citing People v. Jones (1990) 51 Cal.3d 294, 317 (Jones).) "But a defendant's due process rights are not prejudiced by amendment of the information, and the trial court may permit amendment of the accusatory pleading 'at any stage of the proceeding, up to and including the close of trial,' so long as [the] defendant's substantial rights are not prejudiced." (Fernandez, supra, at p. 554, quoting People v. Graff (2009) 170 Cal.App.4th 345, 361.) An information, however, "cannot be amended ... so as to charge an offense not shown by the evidence taken at the preliminary examination." (§ 1009; accord, People v. Winters (1990) 221 Cal.App.3d 997, 1003.) Our Supreme Court has explained that "notice of the particular circumstances of an alleged crime is provided by the evidence presented to the committing magistrate at the preliminary examination, not by a factually detailed information." (People v. Jennings (1991) 53 Cal.3d 334, 358.) "The trial court's accession to an amendment to the information, including the addition of counts, is reviewed for abuse of discretion." (People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1581.)
For example, in Jones, our Supreme Court recognized the difficult problems of proof when a young victim has been molested, because a young victim "may have no practical way of recollecting, reconstructing, distinguishing or identifying by 'specific incidents or dates' all or even any such incidents." (Jones, supra, 51 Cal.3d at p. 305.) Our high court balanced these issues of proof with the defendant's right to fair notice of the charges against him and a reasonable opportunity to defend against those charges and held "the defendant has no right to notice of the specific time or place of an offense, so long as it occurred within the applicable limitation period." (Id. at p. 317.) The court concluded that "given the availability of the preliminary hearing, demurrer and pretrial discovery procedures, the prosecution of child molestation charges based on generic testimony does not, of itself, result in a denial of a defendant's due process right to fair notice of the charges against him." (Id. at p. 318.) With respect to the right to present a defense, the court concluded the victim's inability to recall or relate specific dates, locations, or other details of the offenses did not preclude a defendant from presenting a defense. (Id. at p. 319.) Finally, the court observed that alibi or identity defenses were rarely raised in resident child molester cases because these trials are typically focused on the relative credibility of the accuser and the accused. (Ibid.)
C. Analysis
Specifically, defendant contends the trial court abused its discretion: (1) "when it permitted the amendment to count 8, because the amendment violated Penal Code section 1009 and [his] right to due process"; and (2) "when it granted the prosecutor leave to file the second amended information, because the amendments to counts 1, 4, 5, 7, and 9, constituted a 'significant variance' from the timeframes and circumstances of the offenses as adduced at the preliminary hearing [and] [t]he error violated [his] right to due process ._" (Some capitalization and boldface omitted.) Further, defendant contends his "convictions in counts 2 and 3 must be stricken, because the evidence presented at trial did not correspond to the evidence adduced at the preliminary hearing." (Capitalization and boldface omitted.)
1. Count 8 ( § 286, subd. ( c
)(
2
)(
B ))
Here, the trial court did not abuse its discretion in permitting the prosecution to amend count 8 at the end of trial. The evidence presented at the preliminary hearing, in particular Detective Aguayo's testimony regarding E.M.'s initial statement, gave defendant ample notice he might face any charges related to the sexual assault of E.M. inside the bathroom.
As to count 8, the initial information charged defendant with forcible rape (§ 261, subd. (a)(2)), whereas, the second amended information charged defendant with sodomy (§ 286, subd. (c)(2)(B)). The central question is whether this amendment "'changes the offense charged to one not shown by the evidence taken at the preliminary examination.'" (People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 764, superseded by statute on other grounds as stated in In re Jovan B. (1993) 6 Cal.4th 801, 814, fn. 8.) "'"The information plays a limited but important role-it tells a defendant what kinds of offenses he is charged with and states the number of offenses that can result in prosecution. However, the time, place, and circumstances of charged offenses are left to the preliminary hearing transcript. This is the touchstone of due process notice to a defendant..." [¶] ... [¶] ... [A]n information need not notify a defendant of all the particulars of the crime charged. That role is left to the preliminary hearing transcript....'" (People v Peyton (2009) 176 Cal.App.4th 642, 657 (Peyton), italics omitted.)
At the preliminary hearing, the prosecutor asked Detective Aguayo, "Now at the third house-house did [E.M.] describe an incident which occurred again in the bathroom but on the counter?" and Aguayo answered, "Yes, ma'am." Specifically, E.M. reported that defendant "put her on the counter and then put his penis inside her." E.M. "said it hurt really bad and that she didn't want to do it and she thought he was going to hurt her mother." The prosecutor then asked, "Okay. Did she say what happened after he put his dick in her vagina?" and at that point Aguayo testified to the conduct underlying the offense charged in count 9. Other than the prosecutor's single question (see People v. Chatman (2006) 38 Cal.4th 344, 405 ["'[a] question is not evidence'"]), the only evidence presented at the preliminary hearing was that defendant placed his penis inside E.M. It was unclear whether he placed his penis inside her vagina or her anus.
Based on the evidence presented at the preliminary hearing, defendant was on notice he had to be prepared to defend against a sexual act-whether it be rape or sodomy-against E.M. that occurred inside the bathroom on the counter at the third house. Notably, E.M. did not specifically say defendant penetrated her vagina, rather she felt "his penis inside her." The ambiguity of the term "inside" could logically refer to either E.M.'s vagina or her anus. Further, it is important to note that Aguayo interviewed E.M. when she was 12 years old. (Couzens &Bigelow, Cal. Practice Guide: Sex Crimes (The Rutter Group, Nov. 2023 Update) ¶ 8:2, § 1 ["Young children think, relate, and communicate in a qualitatively different manner than adults."].) Because E.M. provided specificity regarding the location (i.e., the third house), room (i.e., bathroom), and place (i.e., counter) where the sexual act occurred, defendant was placed on notice he could face a penetration charge associated with this specific sexual act-whether it be rape or sodomy. (Cf People v. Pitts (1990) 223 Cal.App.3d 606, 905 (Pitts) ["Where ... the particulars are not shown by the preliminary hearing transcript, the defendant is not on notice in such a way that he has the opportunity to prepare a meaningful defense."] (Italics omitted.).)
Nonetheless, defendant relies on Pitts in support of his contention he was not provided sufficient notice regarding the sodomy charge. In Pitts, the court provided the following hypothetical:
"Suppose the evidence at a preliminary hearing revealed the commission of four distinct violations of section 288, say two oral copulations and two lewd touchings, involving victim X and occurring over a four-month period in [the] defendant's bedroom. [¶] . [¶] Suppose, in the foregoing hypothetical, the evidence at trial showed two acts of sodomy and two of sexual intercourse and the information was amended accordingly. In such a situation, the preliminary hearing transcript would not afford the defendant adequate notice of the specific acts against which he might have to defend. Moreover, in such a situation the opportunity to prepare a meaningful defense would obviously be adversely affected, since the change in alleged acts would affect medical testimony, cross-examination of the alleged victim(s), etc." (Pitts, supra, 223 Cal.App.3d at pp. 905-906, italics omitted.)
Pitts is distinguishable from the facts of this case. In Pitts, the court discussed amending an information from a nonpenetrative crime to a penetrative crime. Here, the preliminary hearing revealed evidence of penetration to the "inside" of E.M. Defendant was initially charged with the offense of forcible rape (§ 261, subd. (a)(2)), and then, at trial, E.M. explained that defendant sodomized her when he inserted his penis inside her anus. After trial, the charges were amended to reflect the act of sodomy (§ 286, subd. (c)(2)(B)). Unlike the hypothetical in Pitts, the second amended information amended the crime from the penetration of the vagina to the penetration of the anus-not to a completely distinct act. Accordingly, we conclude the trial court acted within the bounds of reason by concluding the sodomy amendment to the information fell within the evidence presented at the preliminary hearing.
Finally, defendant argues the trial court's "erroneous ruling resulted in an improper conviction." First, defendant clams that "[a]bsent the trial court's error in permitting the amendment to count 8, the trial court would have been compelled to grant [his section] 1118.1 motion as to count 8, because an essential element of the offense, penetration of the vagina, was not shown by the evidence." However, as we noted above, "the trial court may permit amendment of the accusatory pleading 'at any stage of the proceeding, up to and including the close of trial,' so long as [the] defendant's substantial rights are not prejudiced." (Fernandez, supra, 216 Cal.App.4th at p. 554, italics added.) Section 1009 permits amendments at any stage of the proceedings to conform the accusatory pleading to proof at trial. (See People v. Crosby (1962) 58 Cal.2d 713, 722 [the Legislature enacted § 1009 so that the remedy of amendment is "available to save an indictment [or information] from 'any defect or insufficiency,' provided that the offense which the grand jury sought to charge is itself not changed"].) Thus, the trial court acted within its discretion to permit the prosecutor to amend count 8 at the close of trial. Second, defendant claims "the changes completely sand-bagged the defense [because he] found himself, at the close of the prosecution's case, facing an entirely new offense which was alleged to have occurred anytime within a span of three-and-a-half years, and to have taken place in either of two entirely different locations." Again, the only difference between the forcible rape charge and the sodomy charge was the location where defendant penetrated E.M.'s body. Both charges still required penetration and any possible medical testimony or cross-examination was not affected by this amendment. Simply put, this amendment had no impact on defendant's ability to formulate a defense.
Section 1118.1 states the following: "In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal. If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right."
2. Counts 1, 4, 5, 7, and 9
Defendant further contends "the trial court further abused its discretion when it granted the prosecutor leave to file the second amended information, because the amendments to counts 1, 4, 5, 7, and 9, constituted a 'significant variance' from the timeframes and circumstances of the offenses as adduced at the preliminary hearing." (Capitalization and boldface omitted.)
Again, Jones makes clear "the defendant has no right to notice of the specific time or place of an offense, so long as it occurred within the applicable limitation period." (Jones, supra, 51 Cal.3d at p. 317.) A victim's inability to recall or relate specific dates, locations, or other details of the offenses did not preclude a defendant from presenting a defense. (Id. at p. 319.) For example, in Peyton, the defendant waived his right to a preliminary hearing and the prosecutor filed an information alleging sex acts that occurred in October and November 2005. (Peyton, supra, 176 Cal.App.4th at p. 650.) On the first day of trial, the prosecutor filed an amended information alleging the underlying acts occurred in 2004. (Ibid.) The defendant contended he was "prejudiced by the variance between the October 1, 2005 date, as set forth in the second amended information, and the evidence at trial that the offenses occurred during the fall of 2004." (Id. at p. 661.) However, the court disagreed and explained the following:
"The operative pleading under which [the] defendant was convicted did not charge him with violating a different Penal Code section from that alleged in the amended complaint. Both pleadings were based on the same course of conduct ... and involved the same victim. Both pleadings dealt with the same underlying acts, oral copulation and sexual penetration. [The d]efendant was not presented with a moving target; he was fully aware of what he had to defend against. Additionally, the punishment for the crimes charged in the amended complaint and the second amended information were identical. The substantial rights of [the] defendant were simply not implicated." (Peyton, supra, 176 Cal.App.4th at p. 660.)
Peyton also reasoned the precise date of the conduct need not be stated in the accusatory pleading where the date is immaterial to the offense, and the defendant had not shown he was prejudiced by the variance in the date because he denied engaging in any illegal conduct whatsoever. (Peyton, supra, 176 Cal.App.4th at pp. 659-661.)
Similar to Peyton, apart from count 8, the only amendments made by the second amended information were the date ranges for when the alleged offenses were committed. In the second amended information, the latest possible date for any of the offenses was April 25, 2020, whereas in the first amended information the latest possible date was April 26, 2019-a difference of one year. Both the first amended information and the second amended information included a date range from April 26, 2014 to April 26, 2019. As the trial court stated, defendant "would have been on notice sexual assaults were occurring [during this time period] just in a general process." Defendant does not argue time is a material component of these offenses. For example, there is no claim the statute of limitations was violated or that he in fact committed no such crime due to an alibi or impossibility. (Peyton, supra, 176 Cal.App.4th at p. 660; Jones, supra, 51 Cal.3d at p. 319.) Indeed, defendant made no such argument in the trial court nor on appeal. Rather, he focuses his argument on the fact these amendments "removed the offenses from the timeframes and circumstances established at the preliminary hearing, and thus violated [his] rights to due process and a fair trial." However, as discussed ante, defendant was fully aware of the allegations against which he had to defend. Expanding the time period up to April 25, 2020, did not present defendant with a "moving target" or impinge on his ability to prepare a defense (Peyton, supra, at p. 660), and the change in dates caused no alteration in the nature of the sexual offenses as charged. Accordingly, the trial court did not abuse its discretion in permitting the amendments to counts 1, 4, 5, 7, and 9 in the second amended information.
In part I.C.1. of the Discussion, we discuss in detail the circumstances surrounding the amendment of count 8 from a charge of forcible rape (§ 261, subd. (a)(2)) to a charge of sodomy (§ 286, subd. (c)(2)(B)), as reflected in the second amended information.
Defendant focuses a majority of his prejudice argument on the fact: (1) "the amendments ... nullified] [his] motion for judgment of acquittal ... [because t]he state of the evidence at the close of the prosecution's case and prior to the filing of the amended information" did not match the information; (2) it "left [him] with little choice but to testify in his own defense, and thereby incur significant jury bias based on his criminal record and gang affiliation"; (3) it negatively affected him at sentencing; and (4) it "negated the significant inconsistencies between the timeframes and circumstances of the offenses, as charged in the first amended information, and the timeframes and circumstances as presented in E.M.'s testimony at trial, which would otherwise have seriously undercut her credibility with the jury." However, as discussed above, section 1009 specifically permits a prosecutor to seek leave to amend counts alleged in an information to conform to proof. (See People v. Crosby, supra, 58 Cal.2d at p. 722.) Although these amendments negatively affected defendant both at trial and at sentencing, this does not equate to his substantial rights being prejudiced by the filing of the second amended information.
3. Counts 2 and 3 ( § 288, subd. ( a ))
Defendant further contends counts 2 and 3 must be dismissed because E.M.'s testimony presented at the trial went beyond what was adduced at the preliminary hearing. Specifically, defendant takes issue with the fact that at the preliminary hearing E.M. testified defendant touched her breasts (count 2) and vagina (count 3) in the shower at the first house when she was four or five years old, whereas, at trial, she testified defendant touched her breasts and rubbed his fingers against her vagina when she was six or seven years old while inside the bedroom at the first house. Specifically, defendant argues "[t]he evidence for counts 2 and 3, as presented in E.M.'s trial testimony, demonstrate a 'significant variance' from the evidence presented at the preliminary hearing, which impacted [his] ability to defend against them."
A child sexual assault victim "typically testifies to repeated acts of molestation occurring over a substantial period of time but, lack[s] any meaningful point of reference, is unable to furnish many specific details, dates or distinguishing characteristics as to individual acts or assaults." (Jones, supra, 51 Cal.3d at p. 299.) Further, victims will offer conflicting stories regarding the underlying offense between their initial statement to law enforcement and their trial testimony. Because of this variance, the law provides defendants with the legal mechanism of cross-examination. (See People v. Chavez (1980) 26 Cal.3d 334, 360-361 ["[The d]efendant retains the opportunity to question the declarant as to the circumstances surrounding the prior statements and to elicit from the declarant an explanation for the inconsistencies in his [or her] prior statement and his [or her] on-the-stand testimony."].) All due process and section 1009 requires is a defendant be provided notice of the offense itself; however, as to the specifics of an offense, a defendant is not entitled to notice unless a variance in facts prejudices the substantial rights of the defendant. (Fernandez, supra, 216 Cal.App.4th at p. 554.) Here, as to the inconsistencies between E.M.'s initial statement to law enforcement and her trial testimony-specifically the difference in age and location of where the sexual assault took place-defendant was placed on notice he would have to defend against an unlawful touching of E.M.'s breasts and vagina while at the first house. (See Jones, supra, at p. 317.) Defense counsel focused on these inconsistencies, along with E.M.'s credibility issues, throughout his cross-examination of E.M. Further, he focused a portion of his closing arguments to question the legitimacy surrounding these offenses based on E.M.'s inability to "remember years or dates, or times when these things happened ._" Accordingly, defendant was provided notice of the offenses alleged in counts 2 and 3 and any inconsistencies in facts surrounding counts 2 and 3 did not prejudice the substantial rights of the defendant.
II. Substantial Evidence Exists to Support the Jury's Guilty Verdicts on Counts 7 and 8
Defendant further contends "[t]he evidence presented at trial does not support a finding that [he] used 'force, violence, duress, menace, or fear of immediate and unlawful bodily injury to another person' [i.e., E.M.] in counts 7 or 8, requiring reversal of both counts." We disagree.
A. Standard of Review
In reviewing a conviction for substantial evidence, "'"we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."'" (People v. McCurdy (2014) 59 Cal.4th 1063, 1104.) We must view the evidence in the light most favorable to the judgment below, indulging in all presumptions and every logical inference the trier of fact could draw from the evidence. (People v. Carter (2005) 36 Cal.4th 1114, 1156.)
The test is whether substantial evidence supports the jury's conclusion. (People v. Johnson (1980) 26 Cal.3d 557, 576-578), not whether the reviewing court would reach the same conclusion (People v. Crittenden (1994) 9 Cal.4th 83, 139). Thus, reversal is not warranted "unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331.) "'The uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable.'" (People v. Panah (2005) 35 Cal.4th 395, 489, quoting People v. Scott (1978) 21 Cal.3d 284, 296.)
B. Applicable Law
Section 289, subdivision (a)(1)(B), provides:
"Any person who commits an act of sexual penetration upon a child who is under 14 years of age, when 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, shall be punished by imprisonment in the state prison for 8, 10, or 12 years." (Italics added.)
Further, section 286, subdivision (c)(2)(B), provides:
"Any person who commits an act of sodomy with another person who is under 14 years of age when 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 shall be punished by imprisonment in the state prison for 9, 11, or 13 years." (Italics added.)
Duress means "a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted." (People v. Pitmon (1985) 170 Cal.App.3d 38, 50, fn. omitted, disapproved on another ground in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12; accord, People v. Leal (2004) 33 Cal.4th 999, 1005 [the Pitmon definition has been used to define "'duress'" in the context of forcible sexual penetration in violation of § 289]; see People v. Leal, supra, at p. 1004 [applying the same definition of "'duress'" to § 286, subd. (c)(2)].) "The total circumstances, including the age of the victim, and [her] relationship to [the] defendant are factors to be considered in appraising the existence of duress." (Pitmon, supra, at p. 51.) Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family. (People v. Senior (1992) 3 Cal.App.4th 765, 775 (Senior).)
C. Analysis
As to an allegation of sexual penetration or sodomy by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury, only one of these means are required to sustain a conviction. (See generally Senior, supra, 3 Cal.App.4th at p. 775; §§ 289, subd. (a)(1)(B), 286, subd. (c)(2)(B).) Defendant argues predominantly that there was insufficient evidence to support a finding he used "force" to accomplish the acts alleged in counts 7 and 8. The People implicitly concede there was insufficient evidence "force" was used in this case, and we agree with this concession. However, as we discuss in detail below, substantial evidence exists to support the jury's finding the offenses alleged in counts 7 and 8 were the product of "duress."
Here, there was substantial evidence defendant committed the acts of sexual penetration by a foreign object and sodomy by means of duress in violation of sections 289, subdivision (a)(1)(B) (count 7) and 286, subdivision (c)(2)(B) (count 8). Specifically, as it relates to counts 7 and 8, there was substantial evidence defendant subjected E.M. to several psychological pressures. First, defendant was E.M.'s stepfather and he himself admitted E.M. saw him as a father figure and, thus, he had authority over her. Second, E.M. was aware defendant physically abused her mother, and also observed him "hurt [her] brothers" on one occasion. Third, after E.M. told defendant she "would tell someone" about the abuse, he replied "he would hurt either" her or Sonia if she were to disclose. As Senior stated, "In our view such a warning [although a single threat] also implied jeopardy to the family unit if she failed to submit to future molestation." (Senior, supra, 3 Cal.App.4th at p. 775.)
Nonetheless, defendant argues there was insufficient evidence that counts 7 and 8 were committed by means of "duress" because "E.M. did not describe herself as scared when she was providing the testimony about the offenses" and, thus, it cannot be said that E.M. was fearful of him when he made this singular threat or when he abused her mother. We find People v. Veale (2008) 160 Cal.App.4th 40 (Veale) instructive. In Veale, the defendant married the victim's mother and began molesting the victim when she was six or seven years old. (Id. at p. 43.) The victim "testified she did not tell [her] mother about the incident because she was afraid to tell her and she thought [her] mother would not believe her. [The victim] was afraid something might happen to her or [her] mother if she told. She feared [the] defendant would hurt her if she told, although he never said he would." (Id. at p. 44, italics added.) On appeal, the defendant argued there was insufficient evidence of force or duress. (Id. at p. 45.) The court disagreed and found sufficient evidence of duress, stating specifically:
"A reasonable inference could be made that [the] defendant made an implied threat sufficient to support a finding of duress, based on evidence that [the victim] feared [the] defendant and was afraid that if she told anyone about the molestation, [the] defendant would harm or kill [the victim], her mother or someone else. Additional factors supporting a finding of duress include [the victim's] young age when she was molested; the disparity between [the victim] and [the] defendant's age and size; and [the] defendant's position of authority in the family." (Veale, supra, 160 Cal.App.4th at p. 47.)
Defendant explicitly told E.M. that if she ever told anyone about the abuse "he would hurt either" her or her mother. This threat was corroborated by the fact that E.M. was aware defendant "had hit [her] mom" and had observed her mother "with bruises, [and] broken fingers." Further, defendant committed the offenses while they were alone in the shower (count 7) and bathroom (count 8). Unlike the defendant in Veale, defendant made it explicitly clear he was willing to harm, or even kill E.M. and her mother, if E.M. were to ever disclose. (Cf. Veale, supra, 160 Cal.App.4th at pp. 44, 47.) Therefore, it was reasonable for the jury to infer this single threat, coupled with E.M.'s knowledge regarding defendant's past violence toward her mother, along with the disparity between E.M. and defendant in age and size, constituted duress. Accordingly, substantial evidence supports the jury's guilt findings regarding counts 7 and 8.
III. CALCRIM No. 3185
Further, defendant contends the trial court prejudicially erred "when it failed to instruct the jury with CALCRIM No. 3185 as to counts 7 and 8 [and] the error was not harmless, requiring reversal." (Some capitalization and boldface omitted.) The People concede error, but argue "[a]ny error in this regard was harmless beyond a reasonable doubt." Although we conclude the trial court erred in failing to instruct the jury with CALCRIM No. 3185, we agree with the People that any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
A. Additional Factual Background
CALCRIM No. 3185 provides, in relevant part, the following:
"If you find the defendant guilty of the crime[s] charged in Count[s] [,] [or of attempting to commit (that/those) crime[s]], you must then decide whether[, for each crime,] the People have proved the additional allegation that when the defendant committed (that/those) crime[s], the defendant used
"<Violations of Pen. Code §§ 286 [, subdivision ](c)(2)(B)&(C), 287[, subdivision ](c)(2)(B)&(C), 289[, subdivision ](a)(1)(B)&(C)>
"[(force[,]/[or] violence[,]/[or] duress[,]/[or] menace[,]/[or] fear of immediate and unlawful bodily injury [to another person]) on] [¶] . • [¶]
"a minor who was (under the age of 14 years/14 years of age or older). [¶] ••• [¶]
"The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved."
As to count 7, the jury was instructed with CALCRIM No. 1045 as follows:
"The defendant is charged in Count 7 with sexual penetration by force in violation of Penal Code section 289.
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant committed an act of sexual penetration with another person;
"2. The penetration was accomplished by using a foreign object;
"3. The other person did not consent to the act;
"AND
"4. The defendant accomplished the act by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to another person.
"Sexual penetration means penetration, however slight, of the genital or anal opening of the other person for the purpose of sexual abuse, arousal, or gratification.
"A foreign object, substance, instrument, or device includes any part of the body except a sexual organ.
"Penetration for sexual abuse means penetration for the purpose of causing pain, injury, or discomfort.
"An act is accomplished by force if a person uses enough physical force to overcome the other person's will.
"Duress means a direct or implied threat of force, violence, danger, hardship, or retribution that is enough to cause a reasonable person of ordinary sensitivity 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.
"Menace means a threat, statement, or act showing an intent to injure someone.
"An act is accomplished by fear if the other person is actually and reasonably afraid or she is actually but unreasonably afraid and the defendant knows of her fear and takes advantage of it."
Further, as to count 8, the jury was instructed with CALCRIM No. 1030 as follows:
"The defendant is charged in Count 8 with sodomy by force in violation of Penal Code section 286[, subdivision ](c)(2)(B).
"To prove that the defendant is guilty of this crime, the People must prove that: "1. The defendant committed an act of sodomy with another person; "2. The other person did not consent to the act;
"AND
"3. The defendant accomplished the act by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury to another person.
"Sodomy is any penetration, no matter how slight, of the anus of one person by the penis of another person. Ejaculation is not required.
"An act is accomplished by force if a person uses enough physical force to overcome the other person's will.
"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.
"Menace means a threat, statement, or act showing an intent to injure someone.
"An act is accomplished by fear if the other person is actually and reasonably afraid or he or she is actually but unreasonably afraid and the defendant knows of his or her fear and takes advantage of it."
B. Applicable Law
The trial court must instruct sua sponte on all elements of a charged offense. (People v. Cummings (1993) 4 Cal.4th 1233, 1311, abrogated on another ground in People v. Merritt (2017) 2 Cal.5th 819, 831.) "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi).) With that being said, "[f]ailure to submit a sentencing factor to the jury, like failure to submit an element [of the crime] to the jury, is not structural error." (Washington v. Recuenco (2006) 548 U.S. 212, 222.) Such an error does not require reversal if the reviewing court determines it was harmless beyond a reasonable doubt, applying the test set forth in Chapman. (Neder v. United States (1999) 527 U.S. 1, 15-16.) If we conclude, beyond a reasonable doubt, that a "jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless." (People v. Sandoval (2007) 41 Cal.4th 825, 839.) "The failure to submit a sentencing factor to a jury may be found harmless if the evidence supporting that factor is overwhelming and uncontested, and there is no 'evidence that could rationally lead to a contrary finding.'" (People v. French (2008) 43 Cal.4th 36, 53 (French), quoting Neder, supra, at p. 19; see People v. Epps (2001) 25 Cal.4th 19, 29-30 [denial of the defendant's statutory right to a jury trial on prior conviction allegations was harmless under the state harmless error standard, where the defendant did not contest the issue at trial and the records of prior convictions before the court presumptively established they had occurred].)
C. Analysis
Both parties agree, as do we, that the trial court erred in failing to instruct the jury with CALCRIM No. 3185, which omitted the element from counts 7 and 8 requiring the jury to find that E.M. was under the age of 14 years when the offenses were committed. As to the crime of sexual penetration by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim or other person (count 7), the sentence triad is "three, six, or eight years" in state prison (§ 289, subd. (a)(1)(A)). However, this sentence triad is enhanced to "8, 10, or 12 years" in state prison if the victim is "a child who is under 14 years of age" (id., subd. (a)(1)(B)). Similarly, as to the crime of sodomy by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or other person (count 8), the sentence triad is "three, six, or eight years" (§ 286, subd. (c)(2)(A)). However, this sentence is enhanced to "9, 11, or 13 years" in state prison if the victim "is under 14 years of age when the act is accomplished" (id., subd. (c)(2)(B)). Because the age of the victim "increases the penalty for a crime beyond the prescribed statutory maximum," it therefore "must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at p. 490.) Therefore, the trial court erred when it failed to instruct the jury it had to find that E.M. was under the age of 14 years when defendant committed the offenses alleged in counts 7 and 8. However, as we discuss in detail below, we conclude this error was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.)
Here, any error was harmless beyond a reasonable doubt because evidence of E.M.'s age was "overwhelming and uncontested, and there [was] no 'evidence that could rationally [have led] to a contrary finding.'" (French, supra, 43 Cal.4th at p. 53.) E.M. testified she was born on April 26, 2008, and indicated she was 13 years old when she testified at the trial. There appears to be no dispute in the record regarding E.M.'s age. Because all these crimes predated the trial, E.M. had to be under the age of 14 years when these offenses were committed. (See In re Lopez (2023) 14 Cal.5th 562, 580 ["In other words, if '"[n]o reasonable jury"' would have found in favor of the defendant on the missing fact, given the jury's actual verdict and the state of the evidence, the error may be found harmless beyond a reasonable doubt."].) Based on this evidence alone, irrespective of the trial court's error, we conclude the jury would have found that E.M. was under the age of 14 years when defendant committed the offenses alleged in counts 7 and 8.
Notwithstanding this uncontroverted evidence, the jury also explicitly found E.M. was under the age of 14 years in its verdict forms. (See People v. Jones (1997) 58 Cal.App.4th 693, 709-712 [holding that the trial court's failure to instruct on the elements of § 667.61 was harmless because the jury's findings necessarily resolved the questions posed by the omitted instructions].) As to count 7, the jury found as follows:
"We, the Jury, find the defendant, RAFAEL VILLALOBOS HERNANDEZ, Guilty [of] committing an act of sexual penetration against the will of E.M., who was under 14 years of age, by means of force, violence, duress, menace or fear of immediate or unlawful bodily injury on E.M., to wit, in the shower, at the, third home, a violation of Section 289[, subdivision ](a)(1)(B) of the Penal Code of the State of California, as charged in Count 7 of the Second Amended Information." (Italics added, boldface omitted.)
Similarly, as to count 8, the jury found as follows:
"We, the Jury, find the defendant, RAFAEL VILLALOBOS HERNANDEZ, Guilty of unlawfully having and accomplishing an act of sodomy with E.M., who was under 14 years of age, against said person's will, by means of force, violence, duress, menace or fear of immediate or unlawful bodily injury on said person, to wit, in mom's bathroom, a violation of Section 286[, subdivision ](c)(2)(B) of the Penal Code of the State of California, as charged in Count 8 of the Second Amended Information." (Italics added, boldface omitted.)
Based on the jury's verdict forms on counts 7 and 8, we can confidently say beyond a reasonable doubt the jury did or would have found E.M. to be under the age of 14 years of age regardless of whether they had been instructed with CALCRIM No. 3185.
Nonetheless, defendant argues that "[a]s to the pre-printed verdict forms: In the absence of the relevant [CALCRIM No. 3185] instruction, it cannot be said that the jury made those findings, rather than simply checking the boxes on the pre-printed forms for 'guilty,' when the only other option was 'not guilty.'" Assuming the verdict findings were the only evidence demonstrating the jury made an explicit finding of age, we might agree with defendant's contention. However, as discussed above, E.M. testified at the beginning of her testimony she was 13 years old at the time of the trial. Again, this evidence was undisputed "and there [was] no 'evidence that could rationally [have led] to a contrary finding.'" (French, supra, 43 Cal.4th at p. 53.) Accordingly, the trial court's error in failing to instruct the jury with CALCRIM No. 3185 was harmless beyond a reasonable doubt.
IV. IAC Claims
Defendant makes several claims of IAC. Specifically, he argues defense counsel's performance fell below an objective standard of reasonableness when he: (1) elicited damaging testimony from E.M. during her cross-examination regarding her fear of defendant; (2) "failed to present exculpatory evidence [specifically, alibi evidence] to the jury"; (3) "fail[ed] to object to Detective Solis as an improper rebuttal witness"; and (4) "failed to move to strike counts 2 and 3 from the initial information, pursuant to section 995, where the time-frames charged were outside the time-frames established at the preliminary hearing." (Some capitalization and boldface omitted.) As to each individual claim, we disagree.
As we discuss in detail below, defendant is unable to establish IAC as to each individual claim. Because we are unable to hold defense counsel's performance deficient, we do not address defendant's prejudice arguments. (Strickland, supra, 466 U.S. at p. 697.)
A. General Legal Principles
Defendant has the burden of proving IAC. (People v. Pope (1979) 23 Cal.3d 412, 425, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) To establish such a claim, defendant must show (1) his counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland); People v Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, at p. 694.) "Because of the difficulties inherent in making the evaluation [of counsel's performance], a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" (Strickland, supra, 466 U.S. at p. 689.) "When a claim of [IAC] is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (People v. Anderson (2001) 25 Cal.4th 543, 569.) Reversal is permitted "'only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.'" (People v. Arredondo (2019) 8 Cal.5th 694, 711.) "In light of the deferential standard, appellate courts do not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight and, for this reason, tactical errors do not generally provide a basis for reversing a conviction." (People v. Clotfelter (2021) 65 Cal.App.5th 30, 55; accord, People v. Scott (1997) 15 Cal.4th 1188, 1212.)
B. Analysis
1. E.M.'s Cross-examination
First, defendant argues he received IAC when defense counsel repeatedly asked E.M. questions on cross-examination "about domestic violence and E.M.'s fear of [him]" and that "[t]here can be no conceivable tactical reason for asking questions which can only elicit responses harmful to the case."
a. Additional Factual Background
On direct examination, E.M. testified she was scared of defendant. Thereafter, on cross-examination, defense counsel asked E.M., "What was the main reason you were scared of [defendant]?" and E.M. replied, "Because he had hit [her] mom." E.M. testified she had observed her mother "with bruises, broken fingers." Further, she observed defendant hurt her brothers as well. These actions made E.M. angry and sad. Later on in her testimony, E.M. testified that at one point defendant and her mother stopped seeing each other, and this made her happy because she knew her mother was safe.
During a break in proceedings, the trial court and defense counsel had the following relevant exchange:
"THE COURT: ... [¶] We had a bench conference and, [defense counsel], I did ask you why you were asking the questions about . . . defendant's bad conduct in the sense of the domestic violence, and I asked you if it was strategic. And is that a correct statement of our conversation at bench?
"[DEFENSE COUNSEL]: Yes, your Honor."
Although the record is unclear as to what exactly was said during the chambers conference, it appears as though defense counsel responded to the trial court's inquiry regarding his questioning as to defendant's domestic violence history by informing the trial court it was a tactical decision.
Defendant then testified in his defense and corroborated the fact he had been violent towards Sonia; he also admitted he had a felony domestic violence conviction.
Subsequently, during closing argument, defense counsel argued the following:
"But the thing that I would like to point out is that we know now that my client has a checkered past, you have heard all about it. It includes violence, includes violence against E.M.'s mother, and we also know E.M. was aware of that past. We know that those instances of physical abuse affected her. She spoke about it and you could see anger and hurt. But just because someone makes mistakes doesn't mean they made this mistake. And my client has admitted his mistakes, he sat on the stand and told you about those instances of abuse. He told you about the fact that he would get drunk and high, and mistreat his wife. He made horrible mistakes, but that doesn't mean he did this. We also know that coincidentally these allegations surfaced right after [defendant] got out of prison. She was scared for her mother, and the brutality she thought her mother was going to receive. [Defendant] admitted to his horrible mistakes, but he didn't admit to doing these things.
"We also had heard that [defendant] is a gang member. He admitted that to you. He told you the truth. But just because he has made mistakes in his life doesn't mean he did this. And you have to have an abiding conviction in the truth of those charges. So when you put it all together it is E.M. being put on the spot about her Snapchat, getting expelled from school for bringing alcohol to school. Finding out that her mother's past abusive relationship is rekindling with a possibly violent gang member, she needed to do something. If you believe any of that is possible, you can't have an abiding conviction in the truth of the charges."
b. Analysis
At the outset, "[c]ross-examination is always a risky process-even experienced counsel conducting a brilliant cross-examination might inadvertently elicit damaging disclosures, a risk inherent in the tactical decision to conduct cross-examination." (People v. Ervin (2000) 22 Cal.4th 48, 94.) In general, "the decision to what extent and how to cross-examine witnesses comes within the wide range of tactical decisions competent counsel must make. [Citation.] 'Even where defense counsel may have "'elict[ed] evidence more damaging to [the defendant] than the prosecutor was able to accomplish on direct'" [citation], [courts] have been "reluctant to second-guess counsel" [citation] where a tactical choice of questions led to the damaging testimony.'" (People v. Cleveland (2004) 32 Cal.4th 704, 746 (Cleveland).)
Here, defense counsel's decision to question E.M. about defendant's violent past towards Sonia was not objectively unreasonable. First, as noted, we are "'"reluctant to second-guess counsel" [citation] where a tactical choice of questions led to the damaging testimony.'" (Cleveland, supra, 32 Cal.4th at p. 746.) Second, defense counsel's trial strategy was to focus on E.M.'s credibility-whether it be her own prior bad conduct or her anger towards defendant for hitting her mother-to argue she should not be trusted by the jury. Specifically, he argued during closing arguments that E.M. concocted these allegations against defendant to prevent him from reconnecting with Sonia after being released from prison. Although in hindsight defense counsel's tactical decision to admit defendant's domestic violence history may appear risky (see People v. Scott, supra, 15 Cal.4th at p. 1213 ["Although counsel's tactics were unusual, ... given the limited options he faced, we cannot say on direct appeal they were unreasonable."]), in this he-said-she-said type of case, the only option defense counsel had to defend against these charges was to focus on E.M.'s credibility issues and argue she had a motive to lie. (People v. Falsetta (1999) 21 Cal.4th 903, 918 [recognizing relaxed rules of propensity evidence in sex offense cases "because of their serious nature, and because they are usually committed secretly and result in trials that are largely credibility contests"].) In a case such as this one, where the credibility of both defendant and E.M. were the primary issues in the case, we cannot say defense counsel's tactical decision to attempt to attack E.M.'s credibility by pointing to her motive to lie was objectively unreasonable. Accordingly, on the record of appeal, we will not say there was no strategic or tactical reason for questioning E.M. regarding defendant's domestic violence history towards Sonia.
2. Exculpatory Evidence-Alibi Evidence
Second, defendant argues he received IAC when his "[defense] counsel failed to establish a coherent timeline from which the testimony could be understood by the jury for what it was: alibi evidence." Specifically, he argues his defense counsel: (1) should have utilized evidence (i.e., the fact he was in prison until Aug. 5, 2020, and E.M. went to live with her father in Jan. 2020) to argue he "had no access to E.M. at all in 2020"; and (2) "failed to investigate [his] claim that the 'Dollar Tree,' which E.M. had mentioned in previous statements regarding counts 4 and 5, had not existed at that location at the time claimed by E.M."
It is important to note that defense counsel did present evidence to the jury defendant was incarcerated for 22 months in the California Youth Authority and that he was sent to prison for violating his probation in his section 273.5 case. He was released from prison on August 5, 2020.
At the outset, "[t]he mere circumstance that a different, or better, argument could have been made is not a sufficient basis for finding deficient performance by defense counsel." (People v. Ledesma (2006) 39 Cal.4th 641, 748.) As discussed, ante, defense counsel utilized a trial strategy to argue E.M. had a motive to lie and concoct these accusations against defendant in order to protect her mother. Even assuming this was not the best argument to be made, defense counsel's arguments are consistent with the evidence in the case and reflect legitimate trial strategy. (Yarborough v. Gentry (2003) 540 U.S. 1, 8 ["The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight."].) Overall, defense counsel presented this exculpatory evidence to the jury for its consideration. Just because defense counsel decided to focus his trial strategy on E.M's credibility and not lay out a timeline for the jury did not constitute IAC.
As we discussed in part I.C. of the Discussion, ante, E.M. was unable to remember specific dates or times when defendant sexually assaulted her. (Jones, supra, 51 Cal.3d at p. 319.) A detailed timeline would not have assisted the jury when E.M. herself had issues remembering specific dates and/or times. Therefore, defense counsel may have decided to instead focus on E.M.'s credibility issues, rather than get bogged down in laying out a timeline for the jury.
Additionally, as noted above, a "defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" (Strickland, supra, 466 U.S. at p. 689.) "Impeachment strategy falls within this category of trial tactics." (Tackett v. Trierweiler (6th Cir. 2020) 956 F.3d 358, 374.) Here, the following relevant exchange occurred between the trial court, defense counsel, defendant, and the prosecutor:
"[DEFENSE COUNSEL]: ... But my client has informed me that he is concerned that I didn't put forth some evidence, so I will tell you what it is. He wanted me to somehow bolster his statement that this store, this Dollar Tree store didn't exist at the time. I wasn't able to do that, but I also don't think in E.M.'s testimony that she actually said the name of the store.
"THE COURT: She didn't.
"[DEFENSE COUNSEL]: And so I don't think that would be necessary to do, especially considering that [defendant] did testify that Dollar Tree store didn't exist. I did want to put on the record [defendant] wanted to put it on the record so the Court knew that he was concerned about that. We can address it further after lunch if you would like, but that is what happened.
"THE COURT: So, [prosecutor], can any of your witnesses testify to that if you ask them, hey, when did the Dollar Tree exist, or if you know if you want to stipulate to that?
"[PROSECUTOR]: I don't think it is relevant because she couldn't remember the store.
"THE COURT: It is relevant to ... defendant's testimony, because it goes to his-I think it goes to his defense. I mean, I get both sides. I get both arguments.
"[DEFENSE COUNSEL]: My position was strategically she didn't testify about the name of the store, so we really don't have anything to rebut. She is just saying it was a store which, you know, [defendant] admitted to taking her to the store. So I don't think it is an issue, but [defendant] does, and so I wanted to make the Court aware of it. [¶] ... [¶]
"THE COURT: Where is the location of the Dollar Tree?
"THE DEFENDANT: It is on 10th and Fargo right next to the Rite Aid. She is saying I took her to this Dollar Tree store according to my discovery.
"[DEFENSE COUNSEL]: That is the other thing, he is looking at what is in the discovery, which is not what the jury saw. The jury didn't hear about the Dollar Tree from her.
"THE COURT: So what is in the discovery to the Dollar Tree?
"[DEFENSE COUNSEL]: She mentions the Dollar Tree in her interview.
"THE COURT: What does she say?
"[DEFENSE COUNSEL]: That he would take her to the Dollar Tree, and this incident happened on one of those occasions.
"THE DEFENDANT: But it couldn't have taken place, because it didn't exist, you know.
"THE COURT: [Defendant], you don't have to say anything, but I understand your point, I do, I understood it when you testified. Does anybody know when that Dollar Tree started business on 10th and Fargo?
"[PROSECUTOR]: I have no idea, your Honor.
"[DEFENSE COUNSEL]: I don't either.
"[PROSECUTOR]: Your Honor, I believe that [defense] counsel made a record that as a tactical decision he did not call Detective Solis, because [defense] counsel felt that E.M.'s testimony was confusing, and Detective Solis's testimony might basically make it less confusing for the jury.
"[DEFENSE COUNSEL]: That is true.
"[PROSECUTOR]: And so [defense] counsel could have impeached E.M.'s testimony with the fact there was a prior Dollar Tree, but [chose] not to as a tactical decision, and that is why I believe this wouldn't be relevant now. And I also released all my witnesses because I concluded all testimony, and the defense didn't have any further testimony.
"THE COURT: So we don't have any evidence of when the Dollar Tree started business?
"[DEFENSE COUNSEL]: No, and that is-I think that is the construction of [defendant]'s complaint, that perhaps I should have figured out when that was open, and as I heard the evidence I don't think it is necessary.
"THE COURT: So I mean, the jury is either-the jury is either going to believe or disbelieve [defendant].
"[DEFENSE COUNSEL]: I think his feeling is maybe they would believe him more if there was some more information to back up his statement. But, again, he is kind of testifying in a vacuum because she didn't say Dollar Tree. And I agree with [the prosecutor], I didn't want to impeach her on all her statements, because they were confusing and I wanted to leave them that way." (Italics added.)
Defense counsel told the trial court the reason he did not impeach E.M.'s testimony regarding the existence, or lack thereof, of a Dollar Tree store was because (1) "she didn't testify about the name of the store, so we really d[idn't] have anything to rebut" and (2) he "didn't want to impeach her on all her statements, because they were confusing and I wanted to leave them that way." This decision to not impeach E.M. with this information was purely strategic and went to his larger strategy in attacking E.M.'s credibility. Not only did defense counsel want to portray E.M. as an individual with a motive to lie, but also as an individual who was confused and had difficulty remembering even the most basic dates, times, and places of where the sexual assaults occurred. Accordingly, we are unable to say defense counsel's decision to not impeach E.M.'s testimony regarding the Dollar Tree store was objectively unreasonable because this decision was purely tactical and the product of "'sound trial strategy.'" (Strickland, supra, 466 U.S. at p. 689.)
3. Solis's Testimony
Third, defendant contends he received IAC when defense counsel "fail[ed] to object to Solis testifying as a rebuttal witness." Specifically, he argues Solis's testimony constituted improper rebuttal evidence.
a. Applicable Law
Rebuttal evidence is generally "restricted to evidence made necessary by the defendant's case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt." (People v. Carter (1957) 48 Cal.2d 737, 753754.) Evidence is proper rebuttal evidence if it "tend[s] to disprove a fact of consequence on which the defendant has introduced evidence." (People v. Wallace (2008) 44 Cal.4th 1032, 1088.) Testimony that "fortifies a part of the prosecution's case that has been impeached by defense evidence may properly be admitted in rebuttal." (People v. Young (2005) 34 Cal.4th 1149, 1199.)
b. Analysis
Here, defendant testified that E.M. never saw his penis, he denied making E.M. touch his penis, and denied engaging in any sexual contact with E.M. whatsoever. Specifically, at one point during his testimony, defense counsel asked defendant, "And E.M. has never touched your penis?" and defendant replied, "No, she even gave a description to my penis, which is completely incorrect. She couldn't pick it out of a pickle jar, man." Because the defense in its case-in-chief attacked E.M.'s credibility and recollection of events, the prosecutor was permitted to introduce evidence in rebuttal in an attempt to rehabilitate E.M. as a credible witness. (People v. Carter, supra, 48 Cal.2d at pp. 753-754.) Therefore, the prosecutor was permitted to call Solis as a witness to testify regarding E.M.'s prior statements from her CAST interview detailing defendant's sexual assaults. Thus, even if defense counsel had objected to this testimony, the trial court would have summarily overruled this objection. Accordingly, defense counsel was not deficient for failing to object to Solis as an improper rebuttal witness.
4. Failure to Move to Strike Counts 2 and 3 from the Information Pursuant to Section 995
Fourth, defendant contends he received IAC when defense counsel "fail[ed] to move to strike counts 2 and 3 from the information, pursuant to section 995, prejudiced [him] [and] [t]he removal of the charges in counts 2 and 3 from the timeframe established at the preliminary hearing [April 26, 2012-April 26, 2014 to April 26, 2016-April 26, 2014] violated [his] due process right to notice and his ability to prepare his defense." (Italics added.) We disagree.
a. Applicable Law
To prevail on a section 995 motion to set aside an information, a defendant must establish he was "committed without reasonable or probable cause." (§ 995, subd. (a)(2)(B).) To establish probable cause sufficient to withstand a section 995 motion, the prosecution "must make some showing as to the existence of each element of the charged offense." (Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 148.)
"Evidence that will justify a prosecution need not be sufficient to support a conviction. [Citations.] '"Probable cause is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused."' [Citations.] An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it." (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474.) Notably, "the showing required at a preliminary hearing is exceedingly low" (Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 846), and an information should be set aside "only when there is a total absence of evidence to support a necessary element of the offense charged" (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1226).
b. Analysis
Here, defendant did not receive IAC when defense counsel failed to file a section 995 motion as to counts 2 and 3. At the outset, "[t]he law is clear that, when it is charged that an offense was committed 'on or about' a named date, the exact date need not be proved unless the time 'is a material ingredient in the offense' [citation], and the evidence is not insufficient merely because it shows that the offense was committed on another date." (People v. Starkey (1965) 234 Cal.App.2d 822, 827, italics added.) "Variation from the allegations of an information within the period of limitations is not fatal except where it appears that commission of the act charged does not constitute a crime unless committed on a specific date." (People v. Murray (1949) 91 Cal.App.2d 253, 257.)
Any variation between the prosecution's proof at the preliminary hearing and the allegations of the information was immaterial in this case. The exact date by which the offenses were committed in counts 2 and 3 were not "'a material ingredient in the offense[s] ....'" (People v. Starkey, supra, 234 Cal.App.2d at p. 827.) Given the exact date was not a material ingredient in the offenses, neither objecting to the order nor filing a motion to set aside the information would have been successful. Thus, these alleged failures cannot be deemed IAC. (See People v. Hinton (2006) 37 Cal.4th 839, 917 [defense counsel's failure to file a § 995 motion not IAC because the motion would have failed]; People v. Cudjo (1993) 6 Cal.4th 585, 616 ["Because there was no sound legal basis for objection, counsel's failure to object to the admission of the evidence cannot establish [IAC]."].)
V. The Trial Court Erred in Imposing Full Consecutive Sentences on Counts 2-6 Pursuant to Section 667.6.
Lastly, defendant contends this matter should be remanded for resentencing because the trial court improperly sentenced him pursuant to section 667.6, as to counts 2 through 6, which are not offenses enumerated in section 667.6, subdivision (e). As to this single claim, the People concede error. We accept the People's concession and remand for resentencing.
A. Applicable Law
"The Legislature enacted section 667.6 in 1979 to significantly increase prison terms for persons convicted of certain violent sex offenses. (Stats. 1979, ch. 944, § 10, p. 3258.) Section 667.6, subdivisions (c) and (d) addresses the terms of imprisonment for 10 listed sex crimes commonly referred to as 'violent sex crimes.'" (People v. Pelayo (1999) 69 Cal.App.4th 115, 123.)
Section 667.6, subdivision (c) provides, in pertinent part: "In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion...."
Section 667.6, subdivision (d)(1) provides: "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."
Section 667.6, subdivision (e) lists the offenses to which the section applies as follows: "(1) Rape, in violation of paragraph (2), (3), (6), or (7) of subdivision (a) of Section 261. [¶] (2) Rape, in violation of paragraph (1), (4), (5) of subdivision (a) of former Section 262. [¶] (3) Rape or sexual penetration, in concert, in violation of Section 264.1. [¶] (4) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d) or (k), of Section 286. [¶] (5) Lewd, or lascivious act, in violation of subdivision (b) of Section 288. [¶] (6) Continuous sexual abuse of a child, in violation of Section 288.5. [¶] (7) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d) or (k), or Section 287 or of former Section 288a. [¶] (8) Sexual penetration, in violation of subdivision (a) or (g) of Section 289. [¶] (9) As a present offense under subdivision (c) or (d), assault with intent to commit a specified sexual offense, in violation of Section 220. [¶] (10) As a prior conviction under subdivision (a) or (b), an offense committed in another jurisdiction that includes all of the elements of an offense specified in this subdivision."
B. Analysis
Here, as to counts 2 through 6, defendant was convicted of five counts of violating section 288, subdivision (a). While the forcible lewd act described in section 288, subdivision (b), is specified in section 667.6, subdivision (e)(5), the lewd act described in section 288, subdivision (a), is not (§ 667.6, subd. (e)). Accordingly, the sentences on counts 2 through 6 were unauthorized and remand is required.
DISPOSITION
The sentence is vacated and the matter is remanded for resentencing. At resentencing, the trial court is directed to prepare an amended abstract of judgment and forward certified copies of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: SMITH, Acting P. J. SNAUFFER, J.