P. v. Lee

















Filed 5/10/13 P. v. Lee CA4/3



















NOT TO BE PUBLISHED IN OFFICIAL REPORTS



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opinion has not been certified for publication or ordered published for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





IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. OZRO ROBERT LEE, Defendant and Appellant.

G046971 (Super. Ct. No. 11WF0938) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Gary S. Paer, Judge.
Affirmed.

Marilee Marshall, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Melissa Mandel and Laura A. Glennon,
Deputy Attorneys General, for Plaintiff and Respondent.

*
* *

A jury convicted
defendant Ozro Robert Lee of first degree
residential burglary (Pen. Code §§ 459, 460, subd. (a); count 1),href="#_ftn1" name="_ftnref1" title="">[1]
indecent exposure after unlawful entry (§ 314, subd. (1); count 2), and two
counts of child annoyance after trespass (§ 647.6, subd. (b); counts 4 and 5).href="#_ftn2" name="_ftnref2" title="">[2] The court sentenced defendant to four years
in prison.

On appeal defendant
contends his child annoyance convictions
must be reversed for insufficient evidence and that all the convictions must be
reversed for jury instructional error.
We agree the court erroneously instructed the jury that the People were
not required to prove defendant’s motive for any crime. The error, however, was harmless beyond a
reasonable doubt. We therefore affirm
the judgment in its entirety.



FACTS



On April 15, 2011, S.N. lived with her
granddaughters — T.N. (who was nine years old at the time of trial) and D.H.
(who was seven years old at the time of trial).
S.N. had suffered a stroke the previous year and consequently had speech
problems and partial paralysis on one side of her body.

Barney Saldana lived
across the street from S.N. On April 15, 2011, defendant stopped by
Saldana’s house unannounced just before dark to offer Saldana a job. Defendant parked his truck in front of S.N.’s
house. He had a white poodle with
him. T.N. and D.H. were playing in their
front yard.

Saldana had to check his
work schedule at his boss’s house to see if he could accept defendant’s job
offer. Saldana told defendant he would
be right back. He told defendant to wait
in front of Saldana’s house and said defendant could urinate in Saldana’s side
yard or use the restroom if he talked with Saldana’s brother. Then Saldana went across the street and two
houses down, leaving defendant alone in front of Saldana’s house.

Across the street in
S.N.’s house, S.N. and D.H. were watching television in S.N.’s bedroom. T.N. was in the living room and heard a knock
at the door. Both the front door and the
screen door were closed and locked. T.N.
looked out a window and saw defendant at the door with a screwdriver and a
little white dog. T.N. did not open the
door. Under the house rules, she was not
allowed to open the door to strangers.
She told S.N. there was a stranger at the door.

On cross-examination,
T.N. stated she had seen the puppy “earlier” when she was playing in the front
yard. She petted the dog “in the outside
of the door” and she and D.H. played with it in the living room. T.N. asked the man if she could pet the dog
because it was white and fluffy. In the
living room, the man said she could play with the puppy. T.N. did not know how defendant or the dog
entered her home, but believed defendant might have used a screwdriver to get
in the house.

D.H. testified she did
not let the man into the house. She was
watching television with her grandmother.
She saw the little dog outside the house before she saw the man inside
the house. When the man came in the
house, D.H. was outside with her sister, but they were not playing with the
dog.

While S.N. was in the
bedroom, she saw a man she did not know with a dog go into the bathroom. S.N. got out of bed and walked into the hall
outside her bedroom. D.H. was hiding
behind S.N.’s legs. T.N. was right in
front of S.N. and saw the man urinate in the bathroom. The man was in the bathroom about two feet
away. His pants were down, his penis was
hard, and he started masturbating. Defendant
faced S.N. as he masturbated and looked at her and the girls. While masturbating, he walked toward
S.N. S.N. backed up to get away from
him. Defendant was in the house for
between 10 to 20 minutes. He pulled up
his pants and ran or quickly walked out of the house.

S.N. phoned her
daughter, N.N., and put D.H. on the phone.
D.H. told N.N. that someone came in the house and “T.N. let him
in.” T.N. got on the phone, N.N. asked
her if she let someone in the house, and T.N. said no and that the man had a
screwdriver. N.N. called her niece, and
told her to go to the house to “see about this guy because [N.N.] was told
somebody let him in to use the bathroom.”

The niece went to S.N.’s
house with her boyfriend, his brother, and his friend. They saw a man in a truck parked outside the
house. The man “was wiping his hands off
on a white t-shirt.” S.N., angry and
yelling, moved her hand back and forth in a masturbation motion. T.N. and D.H. were frightened and
crying. The niece called the police
after the girls and S.N. told her what had happened. The niece told the 911 operator that the
girls let someone in the house to use the bathroom.

The girls pointed
outside and said, “That’s him. Don’t let
him leave.” Defendant started his engine
and drove off, but the niece’s boyfriend chased him down the street and told
him to come back. Defendant made a
U-turn and parked in front of S.N.’s home.
Defendant got out of his car holding a puppy and said, “Yeah, the girls,
they wanted to see my puppy.”

The police arrived. Defendant initially complied with an
officer’s order to put up his hands, but then dropped his hands toward his
waistband. The officer, seeing a large
metal object in defendant’s rear pocket, took out his handgun and again asked
defendant to put up his hands. Defendant
complied. Defendant’s jeans were
oversized and “real baggy.” His belt
dangled from only two belt loops and its large metal buckle hung down in front
of his pants. The pant zipper was open.

S.N.’s female friend
walked from S.N.’s porch toward the officer, pointed at defendant, and said,
“That’s him.” Defendant said he had done
nothing wrong and that the girls just wanted to see his dog.

An officer searched
defendant and found a large wrench in his rear pocket, some small tools, a
folding knife, and paperwork.
Defendant’s truck had a tool box across the bed. The tool box had two compartments with
padlocks. One compartment was unlocked,
with its padlock hanging open. In the
unlocked compartment, a clean 12-and-one-half-inch screwdriver lay atop other
dirty tools. The other tools were
arranged facing the same way, so that the screwdriver laid across them looked
out of place.

T.N. told the officer
she was watching television in the front room when she heard a sound like metal
scratching on the security screen door and then saw defendant enter the living
room with a large screwdriver which she thought he used to open the screen
door. T.N. identified the screwdriver
found in the truck’s tool box as the screwdriver she saw in defendant’s hands.

Saldana testified he
returned to his house less than 15 minutes after leaving defendant in his yard,
but found defendant gone. Saldana’s
father told Saldana he thought defendant had gone across the street to the
neighbors’ house to show them a puppy.
The father asked whether defendant knew the neighbors because defendant
had “just walked right in.”

In a police interview,
defendant’s first statement was, “I was at the wrong place at the wrong
time.” Several times during the
interview he said that the girls loved his puppy and wanted to play with it. Defendant knew the girls’ ages and ethnicity,
and that they were sisters. He did >not say he went in the house to use the
bathroom.

Although there were pry
marks on the front screen door, a forensic scientist determined they were
pre-existing marks, not made by the screwdriver found in defendant’s tool box.



DISCUSSION



>Substantial Evidence Supports the Child
Annoyance Convictions

Defendant contends no
substantial evidence supports the factual findings (necessary for conviction of
child annoyance after trespass) that he entered the house without consent,
directed his conduct at a child, and was motivated by an unnatural or abnormal
sexual interest in a child. The Attorney
General counters that defendant either broke into the house or entered it under
the guise of a ruse, and directed his conduct toward the girls, motivated by an
attraction to them.

On appeal we “determine
whether the record evidence could reasonably support a finding of guilt beyond
a reasonable doubt. But this inquiry
does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond
a reasonable doubt.’ [Citation.] Instead, the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, >any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” (Jackson
v. Virginia (1979) 443 U.S. 307, 318-319, fn. omitted.) We review the whole record “‘in the light
most favorable to the People and must presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.’” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Johnson (1980) 26 Cal.3d 557, 578.) To be substantial, evidence must be
“reasonable, credible, and of solid value.”
(Id. at p. 578.) “Perhaps the most fundamental rule of
appellate law is that the judgment challenged on appeal is presumed correct,
and it is the appellant’s burden to affirmatively demonstrate error.” (People
v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)

The crime of child
annoyance after trespass occurs when a person enters an inhabited house without
consent and annoys or molests a child under age 18. (§ 647.6, subds. (a)(1), (b).) The offense “does not require a touching” (>People v. Lopez (1998) 19 Cal.4th 282,
289), but it does require conduct that would unhesitatingly irritate a normal
person and that is motivated by an unnatural or abnormal sexual interest in the
child victim (ibid.). The test is an objective one and asks whether
the defendant’s conduct would unhesitatingly irritate or disturb a normal
person, not whether the child was
actually irritated or disturbed. (>Id. at p. 290.)

Defendant contends
T.N.’s testimony on the issue of consent was internally inconsistent and
contradictory. He suggests T.N. denied
that she let him into the house because she did not want to disappoint or upset
her family by having broken the house rule against admitting strangers. He also points to D.H.’s contradictory
testimony, as well as to the statements of N.N. and the niece that the girls
let him into the house to use the restroom.
Alternatively, defendant contends “stronger evidence suggested” he
directed his conduct toward S.N., not
the girls, and that “nothing suggested that [his] conduct was motivated by an
unnatural or abnormal sexual interest in the child[ren].”

Conflicts in the
evidence are for the jury to resolve. (>People v. Friend (2009) 47 Cal.4th 1,
41.) “‘[I]t is not a proper appellate
function to reassess the credibility of the witnesses.’” (Ibid.) “‘“‘To warrant the rejection of the
statements given by a witness who has been believed by the [trier of fact],
there must exist either a physical impossibility that they are true, or their
falsity must be apparent without resorting to inferences or deductions.’”’” (Ibid.)

Here,
the jury may have believed T.N.’s testimony she did not let defendant into the
house.href="#_ftn3" name="_ftnref3" title="">[3] T.N.’s account that defendant broke into the
house, possibly using a screwdriver, was not physically impossible or obviously
false without resort to inferences or deductions. T.N. repeated this account to N.N., the
niece, and a police officer immediately or soon after the incident. The clean screwdriver that looked out of
place in defendant’s tool box corroborated T.N.’s statement. The jury could infer from the evidence that
T.N. did not break the house rule against admitting strangers, that defendant
entered the house without consent and then used his dog to distract T.N. or
both the girls, or that T.N. played with the dog when she and D.H. were playing
in the front yard. Although T.N. was
qualified to be a witness despite her young age (Evid. Code, § 700), the
jury might have attributed her inconsistencies and intermittent lack of clarity
to her age and yet believed her on the issue of lack of consent.

As to
defendant’s directing his conduct at the girls due to an unnatural sexual
interest in them, S.N. testified defendant looked at both her >and the girls when he was masturbating
only two feet away from them. The jury
could infer from this evidence that defendant sought to intimidate S.N. so she
would not interfere with his conduct directed at the girls. In addition, defendant knew the girls’ ages
and that they were sisters. The girls
were in the yard when he parked in front of their house. This evidence suggests he entered the house
due to his sexual interest in the girls.
No evidence showed he knew that an adult female was inside the house
before he entered it.

In sum, the
evidence was sufficient to support the child annoyance convictions.



>The Court Properly Instructed the Jurors on
Legal Consent, but Erroneously (Albeit
Harmlessly) Instructed Them on Motive

Defendant challenges two
jury instructions given in this case. We
address each challenge individually below, but first summarize the relevant law
on instructional error.

A trial court bears a href="http://www.mcmillanlaw.com/">sua sponte duty to instruct the jury on
“‘“the general principles of law relevant to the issues raised by the
evidence”’” (People v. Breverman (1998)
19 Cal.4th 142, 154), including the elements of an offense (>People v. Flood (1998) 18 Cal.4th 470,
479-480 (Flood)). This includes the mental elements of a
crime. (People v. Cole (2004) 33 Cal.4th 1158,
1210-1211.) “The prosecution has the
burden of proving beyond a reasonable doubt each element of the charged
offense.” (Id. at p. 1208.) “An
instructional error relieving the prosecution of its burden violates the
defendant’s rights under both the United States and California
Constitutions.” (Ibid.) When a jury asks a
trial court for guidance, the judge must provide the jurors with “a lucid
statement of the relevant legal criteria.”
(Bollenbach v. United States
(1946) 326 U.S. 607, 612.)

We
independently review assertions of instructional error. (People
v. Lamer (2003) 110 Cal.App.4th 1463, 1469.) “An appellate court reviews the wording of a
jury instruction de novo and assesses whether the instruction accurately states
the law.” (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574.) “[N]o particular form is required as long as
the instructions are complete and correctly state the law.” (People
v. Andrade (2000) 85 Cal.App.4th 579, 585.)
Even if the defendant failed to object below, an appellate court may
review instructional error “if the substantial rights of the defendant were
affected thereby.” (§ 1259.)

“‘“[T]he
correctness of jury instructions is to be determined from the entire charge of
the court, not from a consideration of parts of an instruction or from a
particular instruction.”’” (>People v. Musselwhite (1998) 17 Cal.4th
1216, 1248.) “When considering a claim
of instructional error, we view the challenged instruction in the context of
the instructions as a whole and the trial record to determine whether there is
a reasonable likelihood the jury applied the instruction in an impermissible
manner.” (People v. Houston (2012) 54 Cal.4th 1186, 1229.) We presume that jurors are intelligent and
capable of correctly understanding, correlating, applying, and following the
court’s instructions. (>People v. Lewis (2001) 26 Cal.4th 334,
390; People v. Sanchez (2001) 26 Cal.4th 834, 852.)

A trial court’s
failure to instruct the jury on all elements of an offense is a constitutional
error “subject to harmless error analysis under both the California and United
States Constitutions.” (>Flood, supra, 18 Cal.4th at p. 475.)
“[S]uch an error, like the vast majority of other constitutional errors,
falls within the broad category of trial error subject to Chapman review.” (>Id. at p. 503) Thus, for this type of error, we inquire
whether it appears “beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained.”
(Chapman v. California (1967)
386 U.S. 18, 24.)

>Motive Element of Child Annoyance Offense

The
court instructed the jurors on the elements of the offense of child annoyance,
including the requirement that the defendant’s conduct be “motivated by an
unnatural or abnormal sexual interest in the child.” (CALCRIM No. 1121; In re Gladys R. (1970) 1 Cal.3d 855, 867-869.) But the court also instructed the jury, in a
general instruction not specific to any particular crime, that the People were
“not required to prove that the defendant had a motive to commit any of the
crimes charged. In reaching your
verdict, you may, however, consider whether the defendant had a motive.” (See CALCRIM No. 370.)

On
appeal defendant contends the court should have clarified to the jurors that
CALCRIM No. 370 does not apply to the offense of child annoyance. He asserts the court’s failure to do so
removed the motive element from the child annoyance charge and thereby violated
his constitutional rights.

We
agree the court erred by failing to modify CALCRIM No. 370 to exclude child
annoyance. Nonetheless, the error was
harmless beyond a reasonable doubt. At
the close of evidence, prior to instructing the jurors, the court described to
them the next stage of the proceedings, saying it would read them the law and
give them “the menus that apply to
these different charges.” (Italics added.) In one of the first instructions the court
read to the jurors, it admonished them to “[p]ay careful attention to all of
these instructions and consider them together.”
Another initial instruction read by the court stated: “The People must prove not only that the
defendant did the acts charged, but also that he acted with a particular intent
and/or mental state. The instruction for
each crime and allegation explains the intent and or mental state required.” The court then instructed the jury that the
crimes of burglary, annoying a child, and annoying a child in a dwelling
require a specific mental state and that, as to these crimes, the defendant
“must not only intentionally commit the prohibited act but must do so with a
specific intent and/or mental state. The
act and the specific intent and/or mental state required are explained in the
instruction for that crime. [¶] Those are those menus I told you about. We are going to get to those pretty
soon.” Immediately after giving CALCRIM
No. 370 (stating that the People need not prove a motive to commit any of the
charged crimes), the court told the jury, “Now I’m going to tell you about the
menus. The little checklists for each
charge.” The court subsequently
instructed the jury that to prove defendant guilty of annoying a child in an
inhabited dwelling, the People had to prove his “conduct was motivated by an
unnatural or unnormal [sic] sexual
interest in the child.” Later, the
prosecutor, in her closing argument, discussed the requirement for felony child
annoyance that the defendant’s conduct be “motivated by an unnatural or
abnormal sexual interest in a child.”
She argued, “How do you know that his conduct was motivated by an
interest in them? Because that is why he
went there. He saw them playing
outside. He goes to the door with the
dog. That is his candy. That is getting him in.” “He is targeting the children.”

No
reasonable jury would be confused under these circumstances. The court carefully led the jurors through
the process and alerted them they would hear a “checklist” or “menu” of the
elements of each charge. We presume the
jurors were capable of correlating the instructions, i.e., of prioritizing the
specific instructions over the general ones, and following the instruction
(repeated several times) that the People had to prove the mental state, i.e.,
the motivation, required for child annoyance after trespass. The error was harmless beyond a reasonable
doubt.

Defendant
relies on People v. Maurer (1995) 32
Cal.App.4th 1121 (Maurer), where the
Court of Appeal reversed two convictions for misdemeanor child annoyance
because the trial court properly instructed the jury that the defendant’s
conduct had to be motivated by an unnatural or abnormal sexual interest in the
victim, but then, in another instruction (CALJIC No. 2.51), told the jury that
“‘[m]otive is not an element of the crime charged and need not be shown.’” (Id.
at p. 1125.) The Court of Appeal
concluded “the trial court erred in providing these conflicting instructions on
this mental state element” (ibid.)
and further held, “On the state of this evidence, we cannot say the error in
providing CALJIC 2.51 . . . was harmless beyond a reasonable doubt” (>id. at p. 1131). In reversing, the appellate court stated, “We
must bear in mind that the audience for these instructions is not a room of law
professors deciphering legal abstractions, but a room of lay jurors reading
conflicting terms.” (>Id. at p. 1127.)

Our case is
distinguishable from Mauer because,
here, the jurors were provided with more guidance than simply two contradictory
instructions. In contrast, >Mauer mentions no other jury
instructions given on the issue, nor does the opinion clarify whether CALJIC
No. 2.51 was given as to child annoyance specifically or as to all the charged
crimes generally.

Moreover, >Mauer’s harmless error analysis should be limited to its unique set of
facts. Mauer essentially concluded it was a close case whether the
defendant was motivated by an abnormal sexual attraction to the victim;
therefore, the court could not say the “‘erroneous instruction “must have made
no difference in reaching the verdict obtained.”’” (Mauer,
supra, 32 Cal.App.4th at
p. 1131.) The defendant in >Mauer was the high school teacher of his
female student victim. (>Id. at p. 1124.) The appellate court stressed that the
defendant’s two child annoyance convictions arose from (1) his joining a
conversation between the victim and another classmate and talking about his
sexual “experience with an older
woman,” and (2) his talking (after the victim pried the details out of him) about a sexual dream involving the
victim. (Id. at pp. 1130-1131.)
The evidence showed that the victim and the defendant “were confidants
and freely discussed sexual and nonsexual matters, sometimes in a counseling
mode. [The victim] frankly and openly
discussed sexual matters with others.
Defendant and [the victim] were very close and spent a lot of time
privately, yet defendant never touched her in a sexual manner and never tried
to seduce her. Defendant’s sexual
comments were almost always made in front of the whole class, which included
boys as well as girls, and were usually uttered in a joking way.” (Id.
at p. 1131.) The Court of Appeal
concluded that, “it is tenable, on this evidence, that a juror here could have
determined that defendant’s conduct was motivated by other than an unnatural or
abnormal sexual interest in” the victim.
(Ibid.) The appellate court therefore held the error
could not be deemed harmless beyond a reasonable doubt. (Id.
at p. 1127.) Mauer is distinguishable from the case at hand, given the nature of
the Mauer defendant’s conduct
(talking) and his relationship with the high school student victim.



>Definition of Legal Consent

Defendant contends the
court, by instructing the jury with CALJIC No. 1.23 defining legal consent,
removed from the jury’s consideration the element of nonconsensual entry into
the house. This element was necessary
for his convictions of indecent exposure after unlawful entry, child annoyance
after trespass, and first degree burglary predicated on the first two felonies.

During the jury’s
deliberations, the jurors asked the court for the “legal definition of consent
with regard to . . . indecent exposure
and . . . annoying a child in a dwelling.” Because “CALCRIM does not have a separate
definition of consent,” the court gave the jury CALJIC No. 1.23, modified as
follows: “To consent to an act or
transaction, a person (1) must act freely and voluntarily and not under the
influence of threats, force or duress; (2) must have knowledge of the true
nature of the act or transaction involved; and (3) must possess the> mental capacity to make an intelligent
choice whether or not to do something proposed by another person. [¶]
Consent requires a free will and positive cooperation in act or
attitude.” (Italics added.)

The court gave the jury
CALJIC No. 1.23 over defense counsel’s objection to the third prong. Defense counsel argued the jury might
“automatically” think that no child has the mental capacity to make an
intelligent decision. Defense counsel
requested instead that the jury be instructed with the definition of “consent”
contained in section 261.6. Section
261.6 provides in relevant part: “In
prosecutions under Section 261, 262, 286, 288a, or 289 [respectively concerning
rape, spousal rape, sodomy, oral copulation, or penetration by foreign object],
in which consent is at issue, ‘consent’ shall be defined to mean positive
cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily
and have knowledge of the nature of the act or transaction involved.” The court denied defense counsel’s request,
noting that section 261.6 defines consent for purposes of certain sex crimes,
but “we are talking about a burglary aspect or the entering of a building
aspect, not a sex crime aspect.”

On appeal defendant
contends the third prong of CALJIC No. 1.23’s definition of consent allowed the
jury to find T.N. lacked the mental capacity to intelligently choose to let him
in the house and therefore lessened the prosecution’s burden of proof on that
element. But defendant offers no legal
authority or analysis as to why the mental capacity requirement should be eliminated
from the definition of consent for purposes of felony indecent exposure and
felony child annoyance. Defendant simply
argues that the court, by giving CALJIC No. 1.23, was “effectively telling the jury . . . that [T.N.]
did not possess the mental capacity to make an intelligent choice as to whether
to let [him] into the house.” (Italics
added.) This is not true; the court did
not tell the jury how to decide the issue.
Rather, CALJIC No. 1.23 allowed the jurors to assess for themselves
whether T.N. had the requisite mental capacity.
The jurors watched and heard T.N. testifying at trial. They heard an officer’s testimony that when
he interviewed T.N. soon after the incident, T.N. was “very articulate” and
“seemed very intelligent for her age,” “very sharp” — evidence contravening
defendant’s assertion the jurors would automatically assume T.N. lacked the
necessary mental capacity. A treatise
cites CALJIC No. 1.23 for the definition of a victim’s “consent” as a defense
where lack of consent is an element of the crime. (1 Witkin & Epstein, Cal. Criminal Law
(4th ed. 2012) Defenses, § 98, p. 545.)
A separate instruction, CALJIC No. 1.23.1 defines “consent” without the
third prong, but only for purposes of rape, sodomy, unlawful penetration, oral
copulation, or murder. (Use Note to
CALJIC No. 1.23.1. (2012) p. 34.) The
court had an obligation to fully answer the jury’s question. The court properly instructed the jury with
CALJIC No. 1.23.



DISPOSITION



The judgment is
affirmed.





IKOLA,
J.



WE CONCUR:







FYBEL, ACTING
P. J.







THOMPSON, J.