P. v. Penz
Filed 8/16/12 P. v.
Penz CA3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(San
Joaquin)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
FRANCISCO RODRIGUEZ PENA,
Defendant and Appellant.
C068004
(Super.
Ct. No. SF114005A)
Defendant
Francisco Rodriguez Pena was convicted by jury of committing a lewd act by
force on a child under 14. Sentenced to
a state prison term of 55 years to life under the “Three Strikes” law,
defendant appeals. He contends: (1) the evidence was insufficient to convict
him of committing a lewd act by force on the child, (2) the trial court abused
its discretion and violated his constitutional
rights by admitting evidence of his prior sexual offenses, and (3) the
trial court misinstructed the jury with respect to the evidence of the prior
sexual offenses by also allowing the jury to consider associated nonsexual
offenses.
Finding no
prejudicial error, we affirm.
FACTS
In January 2010,
when Anna was 11 years old, she went to McKinley Park in Stockton with her
father. Anna’s seven-year-old cousin,
A., also was at the park.
Anna and A. went
into the women’s restroom at the park.
Defendant followed them in. While
A. was in one of the stalls, defendant grabbed Anna by the arms and asked her
if she wanted to smoke a crack cocaine pipe he had. He pushed her into a stall and closed the
door. Still holding her arms, defendant
asked Anna if she wanted to kiss him, and he moved his face closer to hers,
within about three or four inches, trying to kiss her. Anna successfully avoided contact between
their faces by crouching down and moving her head around.
Anna saw A.
looking under the partition, and they both screamed. A. opened the stall door, and both girls
attempted to run out. Defendant blocked
them at the door out of the restroom and again showed them his crack pipe. He threatened Anna that if she did not smoke
the pipe he would kiss A. The girls were
able to get around defendant and escape from the restroom.
Outside the
restroom, the girls ran screaming to Anna’s father, and Anna told him that a
man had tried to kiss her in the restroom.
Her father told her to go call the police on a relative’s cell phone,
which she did. Officers arrived quickly,
and Anna identified defendant, who was still close by, as the man who tried to
kiss her.
Defendant was
arrested. Before the officer said anything
about the restroom, defendant said, “I didn’t go in the bathroom.”
PROCEDURE
A jury convicted
defendant of committing a lewd act by force on a child under 14. (Pen. Code, § 288, subd. (b).) After a bifurcated
trial, the court found true allegations that defendant (1) had a prior
serious and violent felony (Pen. Code, §§ 667; 1170.12, subd. (b)), (2) had a
prior conviction for a forcible sexual offense (Pen. Code, § 667.61, subd.
(d)(1)), and (3) had a prior serious felony (Pen. Code, § 667, subd.
(a)(1)).
The trial court
sentenced defendant to state prison
for an indeterminate term of 25 years to life, doubled to 50 years to life
under the Three Strikes law, plus five years for the prior serious felony.
DISCUSSION
I
Sufficiency of Evidence
Defendant contends
that the evidence was insufficient to convict him of committing a lewd act by
force because, he claims, there was no evidence of a lewd touching. He asserts that grabbing Anna by the arms and
trying to kiss her was not a lewd act because he only touched her arms and
there was no evidence the touching was sexually motivated. We disagree.
“It is the
prosecution’s burden in a criminal case to prove every element of a crime
beyond a reasonable doubt.” (
260, citing In re Winship (1970) 397
U.S. 358 [25 L.Ed.2d 368].) “To
determine whether the prosecution has introduced sufficient evidence to meet
this burden, courts apply the ‘substantial evidence’ test. Under this standard, the court ‘must review
the whole record in the light most favorable to the judgment below to determine
whether it discloses substantial
reasonable, credible, and of solid value -- such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.’” (People
v. Cuevas, supra, at p. 260, quoting People
v. Johnson (1980) 26 Cal.3d 557, 578, italics added by People v. Cuevas.) “In
reviewing a jury’s determination, we view the whole record in a light most
favorable to the verdict, drawing all reasonable inferences and resolving all
conflicts in support of the jury’s verdict.
[Citation.] We must uphold the
verdict unless it clearly appears that upon no hypothesis whatever is there
sufficient evidence to support it.
[Citation.]” (
365, 371.)
The trial court
properly instructed the jury concerning the crime of committing a lewd act by
force on a child under 14. As relevant
here, the court stated:
“To prove that the
defendant is guilty of this crime, the People must prove that the defendant
willfully touched any part of a child’s body either on the bare skin or through
her clothing; in committing the act the defendant used force . . . ; the
defendant committed the act with the intent of arousing, appealing to, or
gratifying the lust, passions or sexual desires of himself of the child for
that matter; and the child was under the age of 14 years at the time of the
act.” (See CALCRIM No. 1111.) And later:
“Actually arousing, appealing to, or gratifying the lust, passions or
sexual desires of the perpetrator or the child is not required.” (See ibid.)
Under this
standard, the evidence was sufficient to sustain defendant’s conviction. The jury could reasonably infer that, when
defendant grabbed Anna’s arms and tried to kiss her, he acted with the intent
to arouse himself or Anna. Thus, the
touching element and the intent element, as well as the force element, were
simultaneously satisfied. That is
sufficient to sustain the conviction.
But defendant
disagrees. He focuses solely on the
grabbing of the arms to assert that the touching was not meant to immediately
arouse himself or Anna. He claims that,
unless he was caressing her arms in a sexual manner or manifested any sexual
gratification solely from touching her arms, the evidence was insufficient to
show a union of touching and intent to arouse.
He argues that, to commit the crime, he had to intend to obtain sexual
gratification simply from touching the arms.
That is not the
law. Defendant fails to account for the
fact that, while he was touching Anna’s arms, he was also trying to kiss
her. In other words, he was touching her
at the same time he was seeking sexual gratification. The touching was to facilitate the sexual
gratification, even if the touching alone may not have been the full object of
defendant’s prurient desire.
Defendant cites
15 (Perkins) as his primary support
for his argument. In
sexual intercourse with a minor. Before
the intercourse, the defendant placed his arm around the victim in a
truck. The victim asked the defendant to
stop and briefly left the truck. The
defendant brought the victim back into the truck, renewed his advances, forced
himself on the victim, and had unlawful intercourse. The defendant was convicted of (1) a lewd act
for putting his arm around the victim and (2) unlawful intercourse for the
later intercourse. (Id. at pp. 18-19.) The
initial placement of his arm around the victim to be merely in preparation for
unlawful sexual intercourse and that the defendant had only a single unlawful
intent. Therefore, because he had only
one unlawful intent, he could not be convicted and punished for both acts. (Id.
at p. 19.)
here. In fact, the Perkins court implicitly recognized that, if there had not been
unlawful sexual intercourse, the defendant could have been convicted and
punished for a lewd touching based solely on putting the arm around the
victim. (Perkins, supra, 129 Cal.App.3d at p. 19, citing
600.) Here, it is fortunate that
defendant was unable to carry out any further acts on Anna. Thus, it is unnecessary to determine whether,
under Perkins, the touching was
merely preparatory to another act and thus could not be the basis for a
separate conviction and punishment.
name="_ftnref1" title="">[1]
We therefore
conclude that defendant’s contention that the evidence was insufficient is
without merit.
II
Propensity Evidence
The trial court
admitted evidence of two prior incidents in which defendant committed sexual
offenses. Applying Evidence Code section
1108, the court allowed the jury to consider these incidents in determining
whether defendant has a propensity for committing sexual offenses.
of the evidence on two grounds: (1) Evidence
Code section 1108 is unconstitutional on its face and (2) the admission of the
other sexual offenses was an abuse of discretion under Evidence Code section
352 and violated his due process rights.
Neither argument has merit.
A. Factual Background
“We review the
correctness of the trial court’s ruling at the time it was made, . . . and not
by reference to evidence produced at a later date. [Citations.]”
(People v. Welch (1999) 20
Cal.4th 701, 739.) Therefore, we recount
the evidence presented to the trial court in connection with the motion to
admit the evidence of prior sexual offenses.
The prosecution
filed a motion in limine, citing Evidence Code section 1108. In it, the prosecution recounted the
following facts concerning defendant’s prior sexual offenses:
“During the early
morning hours of January 27, 1991, [J.L.], 29 years old, went to [a liquor
store] to buy rock cocaine. While she
was in front of the store, [defendant] approached her and began a conversation. [J.L.] did not know [defendant]. [¶] He
proceeded to grab her, throw her to the sidewalk, and climb on top of her. She struggled from underneath [defendant] and
fled across the street to [a restaurant].
[Defendant] chased her and attempted to grab her again. She fled into the kitchen [area] of the
restaurant and [defendant] picked up a knife from the counter and followed
her. He stopped the victim in the
kitchen of the restaurant. He pushed her
to the floor and with the knife he was holding, he cutoff [sic] [J.L.’s] underwear.
[Defendant] then stabbed [J.L.] in the leg. [¶]
[Defendant] then threatened to cut [J.L.’s] vagina if she did not agree
to have sex with him. [Defendant] pushed
[J.L.] to a back room in the restaurant.
[Defendant] held a knife to [J.L.’s] vagina. He told [J.L.] to orally copulate the victim
[sic]. [J.L.] began to orally copulate the victim [
head. He then laid the victim on the
floor and began having sex with the victim.”
For this incident,
defendant was convicted in 1991 of false imprisonment, assault with a deadly
weapon or by force likely to produce great bodily injury, and sexual battery,
and served 16 months in prison.
“On July 9, 2000,
at around 11:00PM, [C.C.] was walking home from her friend’s house to her
home. [C.C.] was 14 years old. [Defendant] approached [C.C.] and began
walking with her. [Defendant] said to
her he wanted to walk [her] home. [C.C.]
did not know [defendant]. As they
continued walking on El Dorado Street, [defendant] asked if [C.C.] would mind
talking to him. She agreed to talk to
him for a few seconds. [Defendant] asked
[C.C.] if she would marry him. [C.C.]
said no because she was too young for him because she was 14 years old. [Defendant] asked her if she would be his
girlfriend. She responded by saying that
she had a boyfriend. [Defendant] became
angry. [¶] [Defendant] told her he would walk her the
rest of the way home. As they were
walking, [defendant] grabbed [C.C.] around the waist and carried her to the
south side of [a market]. She yelled at
[defendant] to let her go. [¶] There, [defendant] threw [C.C.] to the
ground. He got on top of [C.C.] and
straddled her while sitting on her stomach.
[Defendant] began to suck on the right side of [C.C.’s] neck. As this was happening, [C.C.] was screaming
for help and fighting. [Defendant]
attempted to kiss [C.C.’s] mouth.
[Defendant] asked her to ‘kiss him.’
[¶] [Defendant] pulled [C.C.’s]
underwear off. He put his fingers in her
vagina. [C.C.] yelled for [defendant] to
stop and tried to push and kick him off her.
As he put his fingers into [C.C.], [defendant] also tried to kiss
[C.C.]. He kept on telling [C.C.] he
wanted her. [¶] At this point in the sexual assault,
[defendant] unzipped his pants and tried to insert his penis in [C.C.’s]
vagina. Fortunately, she was kicking and
screaming and ended up getting the attention of law enforcement before
[defendant] could rape her.”
For this incident,
defendant was convicted in 2000 of penetration by a foreign object and was
sentenced to six years in state prison.
At the hearing on
the prosecution’s motion to admit the evidence of the prior sexual offenses,
the defense argued that the evidence should be excluded under Evidence Code
section 352 because the prior sexual offenses were only minimally probative and
they were more severe than the present case.
The trial court granted the prosecution’s motion, finding that the
probative value of the prior sexual offenses on the issue of what defendant
intended when he attacked Anna outweighed any prejudicial effect that admitting
the evidence would have.
The defense and
prosecution stipulated that defendant was convicted of (1) sexual battery,
assault with force likely to cause great bodily injury, and false imprisonment
of J.L. in 1991 and (2) rape by a foreign object on C.C. in 2000.
B. Legal
Arguments
1. Constitutionality of Evidence Code section
1108
Defendant
acknowledges that our Supreme Court has rejected a due process challenge to
Evidence Code section 1108. (
903, 922 [“We conclude, consistent with prior state and federal case law, that
(Evidence Code) section 1108 survives defendant’s due process challenge.”]; see
also People v. Lewis (2009) 46
Cal.4th 1255, 1288-1289 [“We decline defendant’s invitation to reconsider our
decision in Falsetta, supra, 21
Cal.4th 903, and to hold that the admission of evidence under Evidence Code
section 1108 to establish a defendant’s propensity to commit a sexual offense
violates his or her due process rights.”].)
Defendant also acknowledges that we are bound to follow our Supreme
Court’s ruling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455). Defendant explains that he asserts
the issue solely to preserve it for further review in federal court. We accordingly reject defendant’s
constitutional challenge to Evidence Code section 1108.
2. Fair Trial and Evidence Code section 352
Defendant also
claims that, as applied in this case, the admission of sexual offense evidence
under Evidence Code section 1108 resulted in an unfair trial and also was an
abuse of discretion under Evidence Code section 352. These claims are also without merit.
Evidence Code
section 1108 is an exception to the general prohibition on propensity evidence
and permits the admission of other sexual offenses, in a sexual offense
prosecution, for the purpose of showing a defendant’s propensity to commit such
crimes. The admissibility of this evidence
is subject only to the weighing of probative value and prejudicial impact under
Evidence Code section 352. (
p. 911; People v. Britt (2002) 104
Cal.App.4th 500, 505.) In deciding
whether to admit prior sexual offense evidence under Evidence Code sections
1108 and 352, the trial court should consider its probative value, its
potential to evoke an emotional bias unrelated to guilt, its capacity to
consume time, its chronological remoteness, and its capacity to distract the
jury from the present offense. (
pp. 916-917; People v. Harris (1998)
60 Cal.App.4th 727, 737-740 (Harris).) We review decisions to admit evidence under
Evidence Code section 352 for abuse of discretion. (People
v. Rodriguez (1999) 20 Cal.4th 1, 9-10; People
v. Fitch (1997) 55 Cal.App.4th 172, 183.)
Fundamentally,
“the ultimate object of the [Evidence Code] section 352 weighing process is a
fair trial.” (Harris, supra, at p. 736.)
Therefore, when admission of evidence under Evidence Code section 352 is
not an abuse of discretion, it also does not result in an unfair trial.
In
sexually molesting two state hospital patients while he served as a nurse at
the hospital. (Harris, supra, 60 Cal.App.4th at pp. 730-732.) The molestation involved kissing and
fondling, and in one case, arguably consensual sexual intercourse. (Id.
at pp. 731-732.) Pursuant to Evidence
Code section 1108, the prosecution introduced evidence that 23 years earlier,
the defendant had violently raped a woman who lived in his apartment
complex. (Id. at p. 733.) When the
police found the victim, she had blood on her vagina and mouth area, along with
swelling on the right side of her face.
In fact, one of the officers testified he “‘couldn’t tell if she was
injured in the crotch and lower stomach area or not due to the blood.’” (Id.
at p. 734.) The defendant was
apprehended at the scene, with blood on his pants, his shorts, and his
penis. (Ibid.) The Court of Appeal
found the evidence was remote in time, inflammatory, and “nearly
irrelevant.” In fact, the only
similarity between the prior incident and the current offenses was that both
involved sexual conduct. (
excluded under Evidence Code section 352.
(Harris, supra, at p. 741.)
As the trial court
noted during the hearing on the prosecution’s motion in this case, the
probative value of the prior sexual offenses evidence was strong, making this
case dissimilar to Harris, in which
the probative value was minimal. The
prior sexual offenses were useful to the jury here to determine defendant’s
intent when he attacked Anna, as well as to establish that defendant has a
propensity for committing sexual offenses against random, vulnerable and
isolated victims, trying to arouse passions by kissing them. Indeed, we agree with the trial court that
the evidence may have also been admissible under Evidence Code section 1101 to
show intent. Therefore, the prior sexual
offenses were, in this case, highly probative and useful to the jury.
Defendant asserts,
however, that the prior offenses are remote and the facts of those offenses
more violent than this case. He also
asserts that the jury may have been confused by the evidence of the prior
sexual offenses or may have believed defendant was not adequately
punished. Although we agree with
defendant that the facts of the two prior sexual offenses were somewhat remote
and more severe than the facts of this case, only speculation supports the
argument that the jury was confused or believed defendant was not adequately
punished. The prior offenses were not so
remote and inflammatory to require their exclusion.
As did the trial
court, we conclude the manifest probative value outweighed any prejudicial
effect of admitting the prior sexual offenses evidence. Accordingly, the trial court did not abuse
its discretion under Evidence Code section 352 and did not violate defendant’s
right to a fair trial.
III
Jury Instruction on Propensity Evidence
Concerning
propensity evidence, the trial court instructed the jury that it could use the
prior sexual offenses to determine that defendant was disposed to commit sexual
offenses. In doing so, the trial court
included the offenses that, abstractly, are not sexual offenses: assault with force likely to cause great
bodily injury and false imprisonment. On
appeal, defendant contends that including the nonsexual offenses was
prejudicial error. We conclude that,
even if the court erred by including the nonsexual offenses in the instruction
with the sexual offenses, any error was harmless.
The trial court
instructed the jury as follows:
“The People
presented evidence here that the defendant committed prior crimes that were not
charged in this case. That’s the
evidence of the prior sexual battery; assault likely to cause great bodily
injury; false imprisonment; and forcible penetration with a finger as set forth
in the exhibits here. . . . [¶] . . . If you decide
the defendant committed the uncharged offenses, you may, but are not required
to conclude from that evidence that the defendant was disposed or inclined to
commit sexual offenses, and based on that decision also conclude that the
defendant was likely to commit a lewd act upon a child as charged in this case.
. . .” (See CALCRIM No. 1191.)
Evidence Code
section 1108, subdivision (a) allows evidence of “another sexual offense or
offenses” to show propensity to commit sexual offenses. We need not determine whether the instruction
violated the trial court’s authority to admit evidence under Evidence Code
section 1108 or defendant’s due process rights because, under any standard of
harmless error, inclusion of the nonsexual offenses in the jury instruction was
harmless. (See People v. Watson (1956) 46 Cal.2d 818, 836 [state standard --
reasonably probable that an outcome more favorable to defendant would have
resulted absent the error]; Chapman v.
California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711] [federal
standard -- error was harmless beyond a reasonable doubt].)
Including the
nonsexual offenses in the instruction really added nothing of importance to the
jury’s consideration. The jury was
allowed under Evidence Code section 1108 to consider the prior incidents giving
rise to the convictions for sexual offenses.
That those incidents included nonsexual offenses did not make the
incidents any more prejudicial to defendant.
Therefore, even assuming the trial court erred by including the
nonsexual offenses in the instruction, any error was harmless.
DISPOSITION
The judgment is
affirmed.
NICHOLSON , Acting P. J.
We concur:
ROBIE , J.
HOCH , J.
name="_ftn1" title="">[1] Because we distinguish Perkins on the facts, we need not decide whether
name="_ftn2" title="">[2] Evidence Code section 1108, subdivision (a)
states: “In a criminal action in which
the defendant is accused of a sexual offense, evidence of the defendant’s
commission of another sexual offense or offenses is not made inadmissible by
[Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to
[Evidence Code] Section 352.”
