P. v. Carreno

Filed 6/19/08 P. v. Carreno CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Tomson T. Ong, Judge. Affirmed.

Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.

________________________

Jesus Lee Carreno appeals from his conviction by jury trial of two counts of lewd and lascivious conduct with a child under 14 years of age. (Pen. Code, 288, subd. a.) He raises issues of instructional and sentencing error. We affirm the conviction.

FACTUAL AND PROCEDURAL SUMMARY

Since the issues presented concern claims of instructional error and error in sentencing, we present a brief factual summary. In doing so, we follow the appellate principle of reviewing the record in the light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Catlin (2001) 26 Cal.4th 81, 139.)

Defendants conviction arises out of two incidents of lewd or lascivious conduct with a child under fourteen years of age. Both incidents occurred on the evening of October 25, 2006. Defendant was living with his girlfriend, Anna R., her 11-year-old daughter, Daisy R., two of Annas other children, and Anna and defendants 5-year old son. Defendant and Anna worked at a sports equipment factory on the 3:30 p.m. to midnight shift. On the evening of October 25, defendant left work early claiming he did not feel well, while Anna remained at work. The children were being cared for by Annas sister who left when defendant returned home. Defendant watched television while Daisy and the other children slept. Daisy testified that sometime after 11:30 p.m. defendant woke her up by touching and painful poking. She testified that defendant inserted his finger inside her butt, and was going up and down. He then turned her over and went to the front, putting his finger inside her crotch where he moved it up and down. This continued for several minutes.

Defendant spoke with Anna two days later, admitting he touched Daisy down there with his hand. He and Anna fought. Defendant claims he had been drunk and had gone into the bedroom after looking at sexual pictures of Anna and himself. Later that day, Anna spoke to Daisy, who told her that defendant woke Daisy by touching, and specifically that defendant had poked her. Anna confronted defendant, who claimed Daisys story was a lie and that he had merely touched her. Anna brought Daisy into the apartment to confront defendant, where again, he denied the poking. Anna testified that defendant said Daisy probably felt pain when he pulled her vaginal lips to the side. After this confrontation, Anna took Daisy to a police station and reported the incidents. Defendant later turned himself in at the station.

Defendant was charged with two felony counts of lewd and lascivious acts upon Daisy R., a child under the age of 14 years. (Pen. Code, 288, subd. a.) A jury convicted him on both counts. The trial court denied probation and sentenced defendant to an aggregate term of eight years in prison, with appropriate credit for presentence custody. The sentence was composed of the six-year middle term for count 1 and consecutive two-year term for count 2 (one-third of the six-year middle term). Defendant filed a timely notice of appeal.

I

Defendant challenges a part of CALCRIM No. 226, the pattern instruction on witness credibility.[1] This comprehensive instruction tells the jury that it alone must judge witness credibility, with the testimony of each witness to be judged by the same standard; it then sets out a nonexclusive list of factors the jury may consider in making its decision; this is followed by an admonition not to automatically reject testimony because of inconsistencies or conflicts; that is followed by a paragraph about the character trait for truthfulnessthe portion of the instruction challenged here; the instruction concludes with a paragraph on the effect of disbelieving a witness statement of not remembering something, and a paragraph on the effect of a deliberate lie by a witness.[2]

The challenged paragraph instructs the jury that:

If the evidence establishes that a witnesss character for truthfulness has not been discussed among the people who know him or her, you may conclude from the lack of discussion that the witnesss character for truthfulness is good.

Appellant argues that the instruction gave an unwarranted boost to a principal prosecution witness, the victim Daisy R. He cites a relatively early California case, People v. Adams (1939) 14 Cal.2d 154, 167, overruled on another ground in People v. Burton (1961) 55 Cal.2d 328, 351, 352, which was then abrogated by People v. Brown (1994) 8 Cal.4th 746, 748-750, which observes that despite the presumption of innocence, the average citizen or juror may be inclined to shift the burden of proof in some sex cases onto the defendant because of the heinousness of the charge. He argues that an instruction which has the effect of supporting a conclusion that Daisy was truthful in her testimony tipped the balance of proof, and amounted to constitutional error.

The instruction traces to English precedent. (See Regina v. Cory (1864) 10 Cox C.C. 23.) That case was cited in an earlier Adams decision, People v. Adams (1902) 137 Cal. 580, 582, which held that testimony that a witness never heard anything against the character of another witness is admissible to establish the good character of that witness, because a mans character does not get talked about until there is some fault to be found with him. The idea is reflected in both CALJIC No. 2.24 and CALCRIM No. 226. But, by its own terms, the instruction only applies [i]f the evidence establishes that a witnesss character for truthfulness has not been discussed among the people who know him or her. Since there was no evidence that any such discussion occurred, the instruction, by its own terms, did not apply. The jury was instructed to disregard instructions that do not apply (CALCRIM No. 200), and the jury is presumed to have followed that instruction. (See People v. Delgado (1993) 5 Cal.4th 312, 331.)

That said, we note that in both CALCRIM and CALJIC the instruction appears in brackets, and the Comment to the CALCRIM instruction states that it should be given only if relevant. (CALCRIM Bench Notes, No. 226, p. 60 of the text.) Since the instruction did not apply, we agree that it would have been better not to give it, but if giving it was error, the error was harmless in light of the limiting language at the beginning and the instruction to disregard inapplicable instructions. Certainly giving it did not rise to constitutional error. (See People v. Thornton (2007) 41 Cal.4th 391, 443 [[o]rdinarily a criminal defendants attempt to inflate garden-variety evidentiary questions into constitutional ones [will prove] unpersuasive.].)

II

Defendant argues the trial court erred in failing to give a unanimity instruction with respect to the two counts charging commission of a lewd and lascivious act on Daisy R., in violation of Penal Code section 288, subdivision (a). Defendant is correct in some of his predicate claims: both counts one and two alleged that crime; there were several alleged acts upon which his guilt could have been based; and the trial court did not instruct the jury that it must be unanimous as to particular conduct in order to convict defendant of a lewd conduct charge. (The pattern instruction is CALCRIM No. 3500.)

The defendant is, of course, entitled to the unanimous agreement of the jurors on his guilt in order to convict. (See People v. Jones (1990) 51 Cal.3d 294, 305.) It also is well settled that this constitutional requirement may be established in one of two ways: either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed . . . that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. (People v. Gordon (1985) 165 Cal.App.3d 839, 853, disapproved on other grounds in People v. Frazer (1999) 21 Cal.4th 737, 765, abrogated on other grounds in Stogner v. California (2003) 539 U.S. 607, 632-633; People v. Hawkins (2002) 98 Cal.App.4th 1428, 1452; and see People v. Norman (2007) 157 Cal.App.4th 460, 462, 467 [failure to give unanimity instruction is most common kind of instructional error in criminal cases].)

The prosecutor elected in this case. As defendant acknowledges, in her opening statement, the prosecutor told the jury that count 1was based on evidence that defendant placed his fingers in Daisys rectum, and count 2 on evidence that he placed them in her vagina. And in closing argument, the prosecutor reiterated: count 1 was based on the former touching, and count 2 on the latter.

Defendant argues that the jury did not have to adopt the prosecutors argument, citing People v. Wright (1914) 167 Cal. 1, 4. Wright has no discernable application to this case. The court did not discuss, and the case did not involve, an issue of jury unanimity. Instead, the case was about the duty of the trial court to instruct on lesser included offenses and defenses when they are supported by the evidence. Defendant also cites People v. Melhado (1998) 60 Cal.App.4th 1529, 1534, 1539, for the proposition that the prosecutors closing argument, standing alone, is not enough to show a specific election. But in Melhado, the prosecution informed the judge of its election, and the fact of the election was not relayed to the jury. While it was possible to parse the prosecutions closing argument in a manner which suggests that more emphasis was placed on one incident than the others for a particular count, that was not enough. (Id. at p. 1536.) That deficiency does not describe this case, where the prosecutor informed the jury of the specific, separate acts it counted upon for each of the first two counts.

III

Defendants third argument appears to be a variation of his second. Referring to the courts imposition of consecutive sentences for counts 1 and 2 and its denial of probation, he argues that these decisions are based on an assumption that defendant was convicted of two separate acts of penetration. There is no showing that denial of probation was based solely on these convictions, but it is, of course, correct that the consecutive sentencing was. As we have discussed, there was evidence that defendant committed each of these acts.

Defendant also argues that multiple punishment for these crimes is prohibited by Penal Code section 654 because the first touching was merely incidental and/or preparatory to the second. In the context of multiple sex acts committed on the same victim during an encounter, the statute prohibits multiple punishment where one act is committed to facilitate another or was incidental to commission of the other. (People v. Perkins (1982) 129 Cal.App.3d 15, 19; People v. Madera (1991) 231 Cal.App.3d 845, 855; and see People v. Jimenez (2002) 99 Cal.App.4th 450, 456 [when touching moves from one area of a victims body to another, separate crimes are committed].) Here, the victim testified that defendant first penetrated her anus, then turned her on her back and penetrated her vagina. The court could reasonably conclude that defendant had time to reflect between these two acts, and decided to turn the victim over and commit the second sexual assault. The trial court explained, there is a question whether or not the acts are predominantly independent of each other or not, and this court believes that they are because it takes a lot of different specific intent for him to first insert his finger in the anus and then having done that, that wasnt enough, pulled it back out and then find the vaginal cavity and insert it in again. Those are separate and distinct acts and warrants consecutive sentencing in this case.

In the same passage, the court explained that its decision to deny probation was based on the particular circumstances of the case: the victim was not only particularly vulnerable, she was asleep when defendant commenced his attack, and the court discredited his claim that he was too drunk at the time to realize what he was doing.

Finally, defendant cites the line of United States Supreme Court decisions culminating in Cunningham v. California (2007) 549 U.S. 270, for the proposition that he was entitled to a jury trial and application of the beyond-a-reasonable-doubt standard on the issues of consecutive punishment and denial of probation. We disagree, based on the decision and rationale of our Supreme Court in People v. Black (2007) 41 Cal.4th 799, 821.

IV

Defendant next argues that Fourteenth Amendment due process prevents imposition of consecutive sentences for the convictions in counts 1 and 2. His rationale is that the jury did not decide whether these crimes were based on separate acts rather than incidental or prefatory touching. Our Supreme Court has rejected the argument. (See People v. Black (2005) 35 Cal.4th 1238, 1263 (Black I), overruled in part by Cunningham v. California, supra, 549 U.S. 270.)

V

Defendants final argument is that a Fourteenth Amendment violation occurred when in the imposition of consecutive sentences for counts 1 and 2 relied on aggravating factors not found by the jury. He acknowledges that our Supreme Court has rejected this argument in Black I, but raises it here in order to preserve the issue for federal review. As he acknowledges, we are bound by our high courts decision in Black I.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

MANELLA, J.

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[1] We agree with defendant that failure to object to the instruction did not forfeit his claim on appeal that the instruction effected a violation of substantial rights. (See People v. Christopher (2006) 137 Cal.App.4th 418, 426.)

[2] CALCRIM No. 226 states: You alone, must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have. You may believe all, part, or none of any witnesss testimony. Consider the testimony of each witness and decide how much of it you believe. [] In evaluating a witnesss testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: [] How well could the witness see, hear, or otherwise perceive the things about which the witness testified? [] How well was the witness able to remember and describe what happened? [] What was the witnesss behavior while testifying? [] Did the witness understand the questions and answer them directly? [] Was the witnesss testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided? [] What was the witnesss attitude about the case or about testifying? [] Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony? [] How reasonable is the testimony when you consider all the other evidence in the case? [] [Did other evidence prove or disprove any fact about which the witness testified?] [] [Did the witness admit to being untruthful?] [] [What is the witnesss character for truthfulness?] [] [Has the witness been convicted of a felony?] [] [Has the witness engaged in [other] conduct that reflects on his or her believability?] [] [Was the witness promised immunity or leniency in exchange for his or her testimony?] [] Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently. [] [If the evidence establishes that a witnesss character for truthfulness has not been discussed among the people who know him or her, you may conclude from the lack of discussion that the witnesss character for truthfulness is good.] [] [If you do not believe a witnesss testimony that he or she no longer remembers something, that testimony is inconsistent with the witnesss earlier statement on that subject.] [] [If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.]