P. v. Mendoza
Filed 1/30/14 P. v. Mendoza CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
HOMERO CORONA MENDOZA,
Defendant and
Appellant.
F064469
(Super. Ct. No. BF138461A)
THE COURT
APPEAL from a judgment of the
Allen G.
Weinberg, under appointment by the Court
of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Louis M. Vasquez, Lewis A. Martinez and
Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Homero
Corona Mendoza appeals following his convictions on a number of felony and
misdemeanor sex crimes. Defendant
presents the following three issues on appeal: (1) the trial court erred by failing to
lesser included offense of attempted lewd and lascivious act with regard to
count 2; (2) the trial court erred by sentencing defendant to one year in jail
on count 8 because the maximum punishment for the crime is 180 days in jail;
and (3) the abstract of judgment must be modified to reflect the statutory
bases for the imposition of various penalty assessments. We will remand for
and correction of the abstract of judgment,
but otherwise affirm the judgment.
RELEVANT PROCEDURAL BACKGROUND
In
an amended information filed by the Kern County District
Code,
title="">[1] § 288, subd. (a), counts
1-3), annoying or molesting a child under 18 (§ 647.6, counts 4, 5 &
9), indecent exposure (§ 314.1, counts 6-7) and sexual battery (§ 243.4,
subd. (e)(1)). He pled not guilty to all
counts.
Following
trial, the jury convicted defendant on all counts.
On
February 24,
2012, defendant was sentenced to a total of
14 years in custody. More specifically, as
to counts 1 through 3, defendant was ordered to serve a total of 10 years in
state prison. The court imposed an
additional four years in custody for the misdemeanor offenses, to be served in
the Kern County jail following completion of the state prison sentence. Various fines, fees and assessments were also
imposed. That same date, defendant filed
a notice of appeal.
BRIEF SUMMARY OF THE FACTS
Lewd and Lascivious Conduct
When
N.S. was 11 years old, her mother was dating or friendly with defendant. On three occasions, while she and her mother
were staying at or visiting defendant’s apartment, defendant touched her.
On
the first occasion, it was evening time.
N.S., her mother, and defendant were lying on the bed watching
television; N.S.’s mother was in the middle.
When her mother got up to use the bathroom, defendant moved to her side
of the bed and put his hands on N.S.’s stomach, over her shirt. His hands touched the bottom part of her
breasts. It made her uncomfortable and
she was afraid.
On
the second occasion, N.S. was in the living room watching television. It was morning time and her mother got up and
went into the bathroom to shower.
Defendant approached and sat next to N.S. on the couch. She explained that defendant was hugging her “like
a girlfriend†from behind, when he reached to touch her breasts. She pushed his hands away and told him to
stop, while moving to another part of the couch. The incident made her uncomfortable.
On
the third occasion, N.S. was in defendant’s home sitting on the edge of the
couch in the living room while her mother was in the kitchen. Defendant came into the living room, moving
close to her. He put his hands inside
the back of her shirt. It made her
uncomfortable.
N.S.
did not tell her mother about these incidents because she was afraid. She only told her mother when the police came
to their home.
Annoying Incidents
In
late April 2011, on a Friday morning, 14-year-old Abigail A. was walking
to the school bus stop when a red van pulled up alongside her. The driver asked for her name and phone number,
and he asked where she lived. She gave
him a false name, but did not provide her address or phone number. She felt “molested†and told her father about
the incident.
The
following Monday morning, Abigail’s father and brother followed behind her as
she walked to the bus stop. The same man
was sitting in a car parked along her route.
He stopped her and gave her a piece of paper with a telephone number on
it. He then drove off. Abigail gave the paper to her father, who
called police.
Abigail
identified defendant as the driver of the vehicle on both occasions. Defendant was subsequently stopped by an
officer who had originally responded to a request for assistance by Abigail’s
father.
Indecent Exposure Incidents
E.P.
On
June 17, 2011, at about 7:00
a.m., 15-year-old E.P. was walking to a
summer school physical education class. A
newer red truck pulled up alongside her.
E.P. was on the sidewalk about seven feet from the truck. The driver asked her for the direction of a
street. E.P. pointed in the direction of
the street then noticed the driver had his penis out and was playing with it. She felt strange and did not know what to do. She continued walking toward school and the
driver drove off.
Once
she got to the school, E.P. told a teacher.
She then reported the incident to security. A couple days later, she was shown a picture
of defendant. He was the driver of the
truck.
Joanna
Later
that same morning, 17-year-old Joanna R. was also walking to school. Since she was running late that morning, she
was walking alone instead of with her brother.
About a block from the school, a newer red truck pulled up and stopped
in the middle of the street. Joanna was
about seven or eight feet away on the sidewalk.
The driver asked her for the direction to a street and she pointed in
that direction. When the driver asked
her how he could get to the street, she told him which streets to take. He began to converse with her but she thought
the situation was strange and kept walking.
The
driver continued to follow her slowly in the truck, asking her more questions. She thought he was “weird,†and then noticed
he was “sweaty and stuff.†His penis was
exposed and he was masturbating. Joanna
was afraid and walked faster. The driver
continued to follow her, but eventually made a U-turn.
When
Joanna got to the school she immediately reported the incident. Although she could not recall his name, Joanna
recognized the truck’s driver as the landlord or owner of a home her family had
previously rented. She called her mother
and asked her mother for the man’s name.
Her mother looked it up on the rental agreement—it was defendant. She gave the name to school police. Joanna later identified a photograph of
defendant as the driver of the truck.
Sexual Battery Incident
Twenty-two-year-old
Nicole C. and friends had been wine tasting in Paso Robles on June 4, 2011. They had traveled by
limousine. When the group returned to Bakersfield, she
and two of those friends—David and Armando—spent the evening at a bar. When the bar closed, the group intended to
call for a cab, but cabs were already waiting outside. One driver said he was a taxi; Nicole
identified defendant as the driver.
After
the cab dropped off David, she and Armando intended to travel to his home together. They stopped at an ATM for additional
funds. Nicole withdrew $20 from the ATM
to add to the $20 she had in her pocket.
About this time, Armando expressed a desire to go to a friend’s home
nearby; Nicole refused. Armando then
left on foot.
Eventually
the cab pulled over and the driver told Nicole, who was sitting alone in the
backseat, “No money. You show me your
pussy.†As the driver made this remark, he
reclined his seat, took off his seatbelt, and touched Nicole’s breasts. She was frightened and wanted out of the
cab. She threw $20 into the front seat
and said, “No, let me out now.†The
driver repeated, “No money. You show me
your pussy.†Nicole threw the other $20
into the front of the cab, said, “No.
Let me out. I’m not like that,†and
managed to unlock the door. She got out
of the cab and ran without looking back.
Because
her cell phone battery was dead, Nicole flagged down another car and asked the
driver to call police. The driver did
so. She spoke with police when they
arrived. She was terrified.
About
two weeks later, Nicole viewed a photo lineup and identified defendant. Prior to trial, she identified defendant in a
live lineup.
DISCUSSION
I. The
Alleged Instructional Error
Defendant
argues the trial court erred in failing to instruct, sua sponte, on the lesser
included offense of attempted lewd and lascivious acts with a child under the
age of 14 years. More particularly, as
to count 2, he claims the evidence shows he was not touching N.S., and that N.S.
herself testified she pushed his hand away when he attempted to touch her. Therefore, he contends the jury could have
found he was guilty only of an attempted lewd and lascivious act. We are not persuaded.
A. Applicable
Legal Standards
“A
court must instruct sua sponte on general principles of law that are closely
and openly connected with the facts presented at trial. [Citation.]†(People
v. Lopez (1998) 19 Cal.4th 282, 287.) “This sua sponte obligation extends to lesser
included offenses if the evidence ‘raises a question as to whether all of the
elements of the charged offense are present and there is evidence that would
justify a conviction of such a lesser offense. [Citations.]’ [Citations.]†(Id.
at pp. 287-288.) “As we stated recently,
‘A criminal defendant is entitled to an instruction on a lesser included
offense only if [citation] “there is evidence which, if accepted by the trier
of fact, would absolve [the] defendant from guilt of the greater offenseâ€
[citation] but not the lesser. [Citations.]’ [Citation.]†(Id.
at p. 288.)
An
offense is necessarily included with a charged offense if the greater offense
cannot be committed without also committing the lesser offense. (People
v. Lopez, supra, 19 Cal.4th at p.
288.) An attempt to commit a charged crime
is a lesser included offense to the completed crime. (In re
Sylvester C. (2006) 137 Cal.App.4th 601, 609.) The trial court has a sua sponte duty to
instruct on a lesser included offense when substantial evidence, viewed in the
light favorable to the defendant, warrants such an instruction. (People
v. Turk (2008) 164 Cal.App.4th 1361, 1368, fn. 5.) However, a “court is not obliged to instruct
on theories that have no such evidentiary support.†(People
v. Breverman (1998) 19 Cal.4th 142, 162.) “‘“[I]f there is no proof, other than an
unexplainable rejection of the prosecution’s evidence, that the offense was
less than that charged, such instructions [on lesser included offenses] shall
not be given.â€â€™ [Citation.]†(People
v. Friend (2009) 47 Cal.4th 1, 51-52.)
If
a trial court fails to instruct on a lesser included offense that is supported
by the evidence, the error is one of state law alone. (People
v. Breverman, supra, 19 Cal.4th
at p. 165.) Such an error does not
require reversal unless “an examination of the entire record establishes a
reasonable probability that the error affected the outcome.†(Id.
at pp. 165; see id. at pp. 165-178;
B. N.S.’s
Testimony
We
find it valuable to set forth N.S.’s testimony concerning the act charged in
count 2. During direct examination, the
following testimony was elicited:
“Q.
What happened the second time?
“A.
When it was morning time, I was barely
was—they were sleeping. I was
awake. I was in the living room watching
TV, and then my mom went to the rest room. She was taking a shower, and he came up to
me. And he was—and then he said—he was—I
was in a big couch. I was in a big couch
watching TV, and he was sitting next to me. He went outside of his room. He was coming to the living room.
“He
was sitting next to me. He was about to
touch me but I pushed him away and then he went to sit on the other couch. [¶] … [¶]
“Q. … What was he doing with his hands before you
pushed him away?
“A.
He was like—like he was—like—
“Q.
Was he reaching for you?
“A. Yeah.
“Q.
And what part of your body was he
reaching for?
“A.
From right here on top.
“Q.
Your boobs?
“A.
Yeah.
“Q.
Okay. And when he’s reaching for them, what did you
do when he did that?
“A.
I was sitting down. He was still reaching me then I just like
pushed him away, and I told him to stop it.
And I pushed him away. Then he
just left to the other couch. That’s
when my mom came out.
“Q.
Okay. And he’s reaching after your boobs. You pushed him away?
“A.
Uh-huh.
“Q.
How did that make you feel?
“A.
Uncomfortable.â€
On cross-examination, testimony regarding
the second incident was brief:
“Q.
Now, the second time, was this at your
home or his home?
“A.
His home.
“Q.
That’s when he reached out to you but he
didn’t touch any private parts?
“A.
No.â€
On redirect examination, the following
testimony was elicited:
“Q.
We’re almost done. You can go home. The second time—okay, the second time when
this happened, you said the defendant reached out—reached out to you. Did he come up from in front of you or behind
you?
“A. He was sitting right here, and he was like—he
was like he wasn’t—he was hugging me but he wasn’t touching me. Like a hug, like a girlfriend hug. He was just like hugging me. That’s when he was about to reach but I pushed
him away.
“Q.
You said he was like hugging you. Was he doing that from behind or in front of
you?
“A.
Behind.
“Q.
From behind?
“A.
Yeah.
“Q.
Okay.
You said it was like a girlfriend hug. What does that mean?
“A.
Like when—like, we were going out.
“Q.
Okay.
You’re not his girlfriend?
“A.
No.
“Q.
And I know he didn’t touch your skin but
was—where [sic] his hands over your
clothing on your boobs?
“A.
Uh-huh.â€
C. Analysis
A
violation of section 288 is committed when a person touches a child under the
age of 14 years with the specific intent to arouse the sexual desires of either
the child or that person. (§ 288, subd.
(a); People v.
the perpetrator possesses the specific intent to commit the target crime and
performs a direct but ineffectual act toward its commission. (People
v. Memro (1985) 38 Cal.3d 658, 698, overruled on other grounds in
181.) Thus, a perpetrator who completes
a touching with the requisite specific intent also necessarily completes an
attempt to commit the crime. (See
1381.) Such are the circumstances here.
The
evidence establishes that defendant touched N.S., holding her in a “girlfriend
hug†on the couch in his living room while her mother was in another room. He then attempted to touch N.S.’s chest or
breast area, and she pushed his hand away.
His crime was completed when he hugged N.S. with the requisite specific
intent. It is not relevant that he was
thwarted in his further attempt to touch her breasts. (People
v. Martinez, supra, 11 Cal.4th at
p. 452; People v. Memro,
he “innocently†hugged N.S., but there was no evidence offered for this
proposition. N.S.’s testimony was
clear. The hug was not an innocent hug;
rather, it was a “girlfriend hug,†or as N.S. explained, the type of hug that
would occur between persons who had an intimate relationship. She had no such relationship with defendant. Defendant’s assertion lacks merit.
The
evidence did not raise a question as to whether all of the elements of the
charged offense were met, nor was there evidence that would justify a
conviction of a lesser offense. (
to instruct the jury on the lesser included offense of attempted lewd and
lascivious act. (Id. at p. 288.)
Defendant
argues, without any citation to legal authority, that because N.S.’s testimony
regarding the hug occurred during redirect, that testimony is not
credible. “‘Redirect examination’ is an
examination of a witness by the direct examiner subsequent to the
cross-examination of the witness.†(Evid.
Code, § 762.) “Upon redirect
examination it is proper to permit the witness to state facts and circumstances
that tend to correct or repeal any wrong impressions or inferences that arise
from the matter drawn out on cross-examination, notwithstanding such facts and
circumstances may prejudice the case for the defendant.†(People
v. Corey (1908) 8 Cal.App. 720, 725.) “The principal function of redirect
examination is to reply to new matters drawn out on cross-examination and to
explain or rebut adverse testimony or inferences developed on
cross-examination.†(
364.)
Here,
the testimony elicited on redirect was necessary to correct any wrong
impression left by the testimony given on cross-examination. That testimony was brief and could have left
the jury with the impression N.S. was never touched during the second incident.
Finally,
defendant argues the trial court’s failure to instruct the jury on attempted
lewd and lascivious conduct amounted to prejudicial error. Further, he contends that because his due
process rights under the Fifth and Fourteenth Amendments were violated, this
court should review the purported error under the federal standard of
We
have already determined there was no error. Notwithstanding that finding, even if we were
to agree the trial court should have instructed on the lesser included offense
of attempt, any error in failing to give such instructions would have been
harmless.
“‘The erroneous failure to instruct on
a lesser included offense generally is subject to harmless error review under
the standard of People v. Watson (1956)
46 Cal.2d 818, at pages 836–837. Reversal is required only if it is reasonably
probable the jury would have returned a different verdict absent the error or
errors complained of. [Citations.]’ (People
v. Rogers (2006) 39 Cal.4th 826, 867–868, fn. omitted; and see
describes potential exceptions for certain federal constitutional violations];
see also People v. Ledesma (2006) 39
Cal.4th 641, 716; People v. Sakarias [(2000)]
22 Cal.4th [596,] 621 [a violation of the duty imposed by state law to instruct
on lesser included offenses is evaluated under the Watson standard]; People v.
Breverman[, supra,] 19 Cal.4th
142, 165 [same]; but see People v. Elliot
[(2005)] 37 Cal.4th [453,] 475 [characterizing erroneous failure to instruct on
a lesser included offense as a denial of due process of law to be evaluated on
appeal under the standard set forth in Chapman
v. California, [supra,] 386 U.S.
18, 24.)†(People v. Prince (2007) 40 Cal.4th 1179, 1267.)
We do not believe it is reasonably probable
the absence of an attempted lewd and lascivious act instruction could have
affected the outcome of the jury’s verdict.
Indeed, any error would have been harmless beyond a reasonable
doubt. As explained above, the lewd and
lascivious act was completed when defendant hugged N.S. The fact he was not successful in
subsequently touching her breasts because she thwarted his attempt by pushing
his hands away is simply not relevant.
The crime had already been committed by the time N.S. pushed defendant’s
hands away when he reached for her breasts.
The evidence supporting the judgment is strong.
Moreover,
there is little, if any, evidence of an attempted lewd and lascivious act. Even if we were to find there was evidence of
an attempt, on these facts, any such evidence would be so weak as to be
insubstantial. (People v. Moye (2009) 47 Cal.4th 537, 556 [failure to give jury
lesser offense choice does not require reversal when evidence supporting
greater offense is sufficiently strong that it is unlikely a properly instructed
jury would have selected the lesser offense].)
In
conclusion, on this record, the trial court was not obligated to instruct the
jury on the lesser included offense of attempted lewd and lascivious act. (People
v. Breverman, supra, 19 Cal.4th
at p. 162.)
II. The
Sentence Imposed in Count 8
Section
243.4, subdivision (e)(1) provides that “[a]ny person who touches an intimate
part of another person, if the touching is against the will of the person
touched, and is for the specific purpose of sexual arousal, sexual
gratification, or sexual abuse, is guilty of misdemeanor sexual battery, punishable
by a fine … or by imprisonment in a county jail not exceeding six months, or by
both that fine and imprisonment.â€
At
sentencing on February 24,
2012, pertinent to this issue, the court
sentenced defendant as follows:
“Count 8, a violation of … Section
243.4, sub (e), sub (1), defendant’s application for probation is denied. He is sentenced to the Kern County Jail for a
period of one year. This sentence is to be served consecutive with
the sentenced imposed above.†(Italics
added.)
Defendant
contends the trial court imposed an illegal sentence when it imposed a term of
one year, versus six months, in county jail.
Plaintiff concedes the error. We
agree with defendant and accept plaintiff’s concession. Accordingly, we order the minute order dated
February 24, 2012, be modified to correct the unauthorized sentence and
provide for a sentence of 180 days in county jail as to count 8. Additionally, the
abstract of judgment on page 2, item 11, should be corrected to read as
follows: “Defendant to serve a total of 10 years in the Department of
Corrections as to counts 1, 2, 3 and defendant to serve a total of three years six
months in the Kern County jail for remaining counts upon completion of prison sentence.â€
III. The
Abstract of Judgment Must Be Modified
Defendant
contends the trial court erred when it imposed various penalty assessments
related to counts 1 through 3 because the abstract of judgment does not
separately list those penalties and their statutory bases. Plaintiff agrees and concedes the issue.
At
sentencing, the trial court imposed the following sentences regarding counts 1
through 3:
“[The Court:] As far as Count 1, violation of … Section 288,
sub (a), probation is denied. The
defendant is sentenced to the Department of Corrections for the midterm of six
years. [¶] … [¶]
“He
is ordered to pay a fine of $300 pursuant to … Section 290.3, plus a penalty
assessment of $840, as referenced and included in the probation officer’s
report at page 15, lines 8 through 13; plus a 30-dollar fee pursuant to
Government Code Section 70373; plus a $40 fee pursuant to … Section 1465.8.
“As
to Count 2, a violation of … Section 288, sub (a), probation is denied. Defendant is sentenced to the Department of
Corrections for a period of two years.
That sentence is to be served concurrent. Two years is one-third the midterm. That sentence is to be served consecutive
with the sentence imposed above. [¶] …
[¶]
“He
is ordered to pay a fine of $500 pursuant to … Section 290.3, plus a penalty
assessment of $1400, as referenced and incorporated on page 16, lines 1 through
6. [¶] … [¶]
“As
to Count 3, a violation of … Section 288, sub (a), probation is denied. The defendant is sentenced to the Department
of Corrections for one-third the midterm or two years. That sentence is to be served consecutive
with the sentence imposed above. [¶] … [¶]
“He
is ordered to pay a $500 fine pursuant to … Section 290.3, plus a penalty
assessment of $1,400, as referenced and incorporated in the probation officer’s
report at page 16, line 22, through page 17, line 3.â€
The probation officer’s report
provides the following, in relevant part:
“*(As
to the penalty assessment of $840.00, that consists of individual assessments
in the amounts of $300.00 (… Section 1464(a)), $210.00 (Government Code Section
76000(a)), $30.00 (Government Code Section 76104.6), $90.00 (Government Code
Section 76104.7), $150.00 (Government Code Section 70372(a)) and $60.00 (…
Section 1465.7.)â€
“*(As
to the penalty assessment of $1,400.00, that consists of individual assessments
in the amounts of $500.00 (… Section 1464(a)), $350.00 (Government Code Section
76000(a)), $50.00 (Government Code Section 76104.6), $150.00 (Government Code
Section 76104.7), $250.00 (Government Code Section 70372(a)) and $100.00 (…
Section 1465.7.)â€
“*(As
to the penalty assessment of $1,400.00, that consists of individual assessments
in the amounts of $500.00 (… Section 1464(a)), $350.00 (Government Code Section
76000(a)), $50.00 (Government Code Section 76104.6), $150.00 (Government Code
Section 76104.7), $250.00 (Government Code Section 70372(a)) and $100.00 (…
Section 1465.7.)â€
The
abstract of judgment filed February 27, 2012, does not
separately list the penalties imposed. Rather,
it reads as follows: “Defendant ordered to pay as to count 1: $300 plus penalty
assessment of $840 pursuant to PC 290.3. Defendant ordered to pay as to count 2: $500 plus penalty assessment of $1400 pursuant
to PC 290.3. Defendant ordered to pay as
to count 3: $500 plus penalty assessment
of $1400 pursuant to PC 290.3.†(Some
capitalization omitted.)
Again,
we agree with defendant and accept plaintiff’s concession. In People
v. High (2004) 119 Cal.App.4th 1192, the defendant was convicted of various
crimes and sentenced to state prison. (
judgment. (Id. at pp. 1199-1200.) Noting
that although “a detailed recitation of all the fees, fines and penalties on
the record may be tedious†and that “California law does not authorize
shortcuts,†the appellate court explained that “[a]ll fines and fees must be
set forth in the abstract of judgment†because it “‘“‘digest[s] or summarize[s]’â€â€™â€
the judgment and without such specification the Department of Corrections and
Rehabilitation “cannot fulfill its statutory duty to collect and forward
deductions from prisoner wages to the appropriate agency.†(Id.
at p. 1200.) Thus, the Court of Appeal
remanded to the trial court to correct the clerical errors. (Id.
at pp. 1200-1201.)
Here,
the trial court’s reference to the probation report and its incorporation of
certain portions thereof was proper. (See
People v. Voit (2011) 200 Cal.App.4th
1353, 1373; People v. Sharret (2011) 191
Cal.App.4th 859, 864.) Nevertheless, after
oral pronouncement of the sentence occurs, “[t]he responsibility then falls to
the trial court clerk to specify the penalties and surcharge in appropriate
amounts in the minutes, and more importantly, the abstract of judgment.†(People
v. Sharret, supra, at p. 864; see
People v. Voit, supra, at p. 1373.) Neither
the minute order nor the abstract of judgment specify the penalties and
surcharges imposed here. Therefore, we
will remand and direct the trial court to correct both the minute order and the
abstract of judgment accordingly. (
DISPOSITION
As
to counts 1 through 3, the clerk of the superior court is directed to prepare
an amended abstract of judgment, specifically listing the penalty assessments
imposed by the trial court along with the statutory basis for each assessment
imposed, as described in part III. of this opinion. Further, as to count 8, the judgment is
modified to impose a sentence of 180 days.
The clerk of the superior court is directed to forward a copy of the
amended abstract of judgment to California’s Department of Corrections and Rehabilitation. The judgment is affirmed in all other
respects.
name="_ftn1" title="">*Before Franson, Acting P.J., Peña, J. and Hoff,
†Judge of
the Fresno Superior Court assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
name="_ftn2" title="">[1]All further statutory references are to the Penal Code unless
otherwise indicated.
