P. v. Solis
Filed 5/9/13
P. v. Solis CA2/2
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This opinion has not been certified for publication or ordered published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 TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
JOSE M.
SOLIS,
Defendant and Appellant.
B236689
(Los Angeles County
Super. Ct. No. VA118486)
APPEAL from a judgment of the Superior Court of
County. Michael A.
Cowell, Judge. Affirmed.
Nancy L. Tetreault, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Linda C.
Johnson and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant
and appellant Jose M. Solis appeals from his conviction of two counts of lewd
act upon a child under the age of 14. He
contends that the trial court was required to instruct the jury with regard to
battery as a lesser included offense. He
also contends that Evidence Code section 1108 violates the United States
Constitution, and that the trial court erred in admitting propensity
evidence. We conclude that defendant’s
contentions are without merit and affirm the judgment.
BACKGROUND
Procedural history
Defendant
was charged with two counts of lewd act upon a child under the age of 14, in
violation of Penal Code section 288, subdivision (a).
as charged, and on October 13, 2011, the trial court sentenced him to a total of
six years in prison, comprised of the middle term of six years as to count 1,
plus a concurrent term of six years as to count 2. The trial court awarded 291 days of
presentence custody credit, imposed mandatory fines and fees, and ordered
defendant to submit to HIV testing and provide a DNA sample. Defendant filed a timely notice of appeal from
the judgment.
Prosecution evidence
Eleven-year-old Emily T. and her older sister Fatima
2010. At approximately 3:00 p.m. when
Emily and her two sisters were home alone while their parents were at work,
defendant, their maternal uncle came to visit.
When defendant arrived dinner was being prepared and cheese was
needed. Defendant offered to go to the
store and invited Emily to come along.
She happily agreed as she was close to defendant, he was like a second
father and she trusted him. Defendant
and Emily went in defendant’s car to the store, although it was just one block
away. After defendant bought the cheese,
he drove to his house, about two blocks away, rather than return to the girls’
house.
Inside
the house, defendant took Emily by the arm, placed her on his lap, and told her
that if she had the chills, her breasts would grow. He then kissed her multiple times on her neck
and blew in her ear. He asked whether
she had a boyfriend. Defendant then
lifted Emily’s shirt and bra, asked how fast her heart was racing, and touched
her left breast, rubbing it in a circular motion for a minute or two.
Emily
was frightened and felt she could not move.
When defendant asked her whether “she liked it†and whether it felt
good, she said “no,†but he continued to rub her breast. Emily then asked to go to the bathroom and
remained there crying for five or six minutes.
She came back out because she felt she had no choice. Defendant again took her to the couch, put
her on his lap, grabbed her breast under her bra and rubbed it in a circular
motion as he had earlier, for a longer period, maybe three minutes. When Emily finally told him to stop and take
her home before her father returned, defendant complied.
Fatima
noticed that defendant and Emily were away longer than it would normally take
to go to the store. As Emily helped
Fatima set the table, Fatima noticed that Emily’s face was pale and her voice
was soft and shaky. Emily tugged at
Fatima and said defendant had done something to her. In response Fatima took Emily into the
bedroom where Emily told Fatima what defendant had done. They then sat down to dinner, saying nothing
to their father about what had happened.
Fatima and Emily later told their mother.
Emily’s
frequent asthma attacks caused her to suffer anxiety for which she saw a
therapist. About two weeks after the
incident with defendant, Emily and her mother (Hortensia) told Emily’s
therapist about it, and the therapist notified law enforcement.
Arturo,
the girls’ father, testified that defendant visited their home almost
daily. Arturo remembered that on
December 23, 2010, he arrived home from work at 4:45 p.m. and that defendant
stayed for dinner. At dinner, defendant
and Emily both looked frightened and defendant’s face was red. Defendant attributed his heightened color to
possible illness, nothing was said about the incident, and dinner conversation
was otherwise normal. About one month
earlier, Arturo observed defendant hugging Emily against his body and speaking
into her ear in a way that made Arturo uncomfortable. Arturo had noticed that defendant behaved
differently with Emily; he was more affectionate with her than with the other
girls and was always “after her.†Arturo
spoke to his wife about his observation and asked her to tell her brother not
to hug Emily in that way, but his wife, though upset, did not believe him.
Defense evidence
Emily’s
therapist, Gloria Cordova, testified that she has been Emily’s therapist since
August 2010. When told about what
defendant had done, she called law enforcement.
Defendant’s
niece, Aracely Morales, testified that she had known defendant since she was
four years old and that he lived with her family for about two years when she
was in high school. Defendant often
visited her family and never behaved inappropriately when she was alone with
him. No other family members ever told
her that he acted inappropriately toward them.
Defendant’s
landlord, Victor Reyes (Reyes), testified that defendant was home installing an
outdoor canopy until 3:00 p.m. on December 23, 2010, except for about 10
minutes around 1:00 p.m. when he went to buy beer. Reyes did not see defendant later that
afternoon, because he was working on the other side of the house until 5:00
p.m. Reyes saw defendant’s wife come
home about 6:30 p.m., and then saw the two of them go to the market.
Defendant’s
sister, Cecelia Morales, testified that she had left her children alone with
defendant on occasion, and they never reported inappropriate behavior.
Defendant’s
wife, Claudia Solis, testified that they had been married six years, had no
children, and defendant had a 15-year-old son who spent weekends and vacations
with them. Defendant often enjoyed
spending time with Mrs. Solis’s seven nieces and nephews, and was always
helpful and playful with them. When Mrs.
Solis arrived home from work at 6:30 p.m. on December 23, 2010, she and
defendant went to the market.
DISCUSSION
Battery instruction
Defendant contends that battery is a lesser included
offense of committing a lewd or lascivious act upon the body of a child and
that the judgment must be reversed because the trial court did not instruct the
jury, sua sponte, regarding battery.
“‘The
trial court is obligated to instruct the jury on all general principles of law
relevant to the issues raised by the evidence, whether or not the defendant
makes a formal request.’
[Citations.] ‘That obligation
encompasses instructions on lesser included offenses if there is evidence that,
if accepted by the trier of fact, would absolve the defendant of guilt of the
greater offense but not of the lesser.’
[Citations.]†(
866; see also People v. Breverman (1998)
19 Cal.4th 142, 154.)
Recognizing that there is a split of authority
on the question whether battery is a lesser included offense of committing a
lewd or lascivious act upon a child, defendant urges us to follow
1278, which held that it is a lesser included offense. Respondent urges us to follow
723, which held that it is not a lesser included offense.
assuming defendant’s position is correct, he has failed to show that the evidence
warranted a jury instruction of battery
or that defendant was prejudiced by its omission.
Section
288, subdivision (a), is violated by any touching of any part of a child’s body
if committed with the intent to sexually arouse either the defendant or the
child. (People v. Martinez (1995) 11 Cal.4th 434, 442.) Battery under section 242 is any harmful or
offensive touching and requires no intent other than to touch. (People
v. Lara (1996) 44 Cal.App.4th 102, 107.)
Defendant contends that there was sufficient evidence from which the
jury could find that there was no intent to sexually arouse either defendant or
the child, and thus the offensive touching was merely battery. He argues that because Emily suffered from
severe asthma and had an “anxiety disorder,†and because he asked her whether
her heart was racing before touching her “breast area,†the jury could have
found that he was merely concerned for her health and attempting to comfort
her.
At most,
defendant’s argument demonstrates that anyone who knew Emily would be concerned
about her health; but the evidence fails to suggest that defendant had any
intent to comfort her at that particular moment. The mere possibility that a jury might find
that a defendant harbored a certain mental state, without direct or
circumstantial evidence to support such a finding, is insufficient to warrant
an instruction. (People v. Sakarias (2000) 22 Cal.4th 596, 620.) “Speculation is an insufficient basis upon
which to require the trial court to give an instruction on a lesser included
offense.†(People v. Wilson (1992) 3 Cal.4th 926, 942.)
There was no
direct or circumstantial evidence that defendant touched Emily in any nonsexual
comforting manner. There was no evidence
that Emily had an anxiety disorder or evidence defining such a condition; there
was no evidence to suggest that Emily was having an asthma or anxiety attack or
even that her heart was racing during the incident; and there was no evidence
that defendant merely touched the area near her breast. Moreover, had Emily shown signs of an asthma
or anxiety attack, defendant would have no reason to take her to his house, as
the store was closer to Emily’s home than his.
Finally, had defendant intended only to comfort Emily, he would have had
no reason to place his hand under her shirt and bra to determine whether her
heart was racing; nor would he have had any reason to kiss her neck, blow into
her ear, tell her about the effect of cold on breasts, or ask her about boyfriends. Touching a child in this manner provides
ample evidence of the requisite intent under section 288, subdivision (a). (See People
v. Martinez, supra, 11 Cal.4th at
pp. 444, 447.) Defendant does not argue
otherwise and points to no evidence that he touched Emily in some other
manner. Rather, the defense theory was
that defendant was home all day and evening December 23, 2010, and that the
events were fabricated.
We
conclude that the trial court did not err in omitting a battery instruction;
however, assuming that the trial court was required to give a battery
instruction, the evidence of Emily’s frequent illness and defendant’s
speculative argument fail to show a reasonable probability that its absence
contributed to the verdict or even a reasonable doubt whether it did so. Any error was thus harmless under the
standard of either People v. Watson
(1956) 46 Cal.2d 818, 836, or Chapman v.
California (1967) 386 U.S. 18, 24.
II. Evidence Code section 1108
Defendant
contends that the trial court erred in admitting Arturo’s testimony regarding
the prior hugging incident, and that the error resulted in a denial of his
federal constitutional rights to due process and equal protection. He first contends that Evidence Code section
1108 is unconstitutional on its face.
Defendant acknowledges that the California Supreme Court rejected such a
challenge in People v. Falsetta
(1999) 21 Cal.4th 903, 913-922 (Falsetta),
and he concedes that we are bound by that holding. (See Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) He nevertheless asks that we find that
defendant’s argument that Evidence Code section 1108 on its face violates due
process.
Defendant
next contends that Evidence Code section 1108 was unconstitutional as applied
to him. Respondent correctly points out
that because defendant did not raise a constitutional claim below, he has
forfeited his challenge on appeal. A
challenge to the admissibility of evidence is generally not cognizable on
appeal in the absence of a specific and timely objection in the trial court on
the ground urged on appeal. (Evid. Code,
§ 353.) An objection on one ground does
not preserve a challenge based upon a different ground, including the claim
that the admission of certain evidence violated the defendant’s right to due
process under the federal constitution.
(People v. Partida (2005) 37
Cal.4th 428, 434-435 (Partida).) “A party cannot argue the court erred in failing to conduct an
analysis it was not asked to conduct.â€
(
On the
other hand, the objection
made in the trial court may be sufficient to preserve a federal
claim is merely “an additional legal consequence of the asserted [state] error
. . . .†(Partida, supra, 37
Cal.4th at p. 438.) Thus, defendant’s
due process claim is cognizable on appeal only if and when he demonstrates that
the trial court erred in admitting the evidence over the proper objection
actually made below. (
391, 443-444; Partida,
Because we conclude in the
next section that the trial court did not abuse its discretion in
admitting Arturo’s testimony, and defendant has not demonstrated error under
state law, we also conclude that his federal due process claim must also fail. (See People
v. Thornton, supra, 41 Cal.4th at
pp. 443-444; Partida,
III. Evidence Code section 352
Defendant
contends that the trial court abused its discretion under Evidence Code section
352 in admitting Arturo’s testimony regarding his observation of defendant
inappropriately hugging Emily. Prior to
jury selection, when the trial court heard all motions in limine, defendant
objected to the proposed testimony as prejudicial propensity evidence, vague as
to when the incident occurred, and a “distraction.†The prosecutor successfully argued that the
testimony was admissible to show intent
section 1108.
“We
apply the deferential abuse of discretion standard when reviewing a trial
court’s ruling under Evidence Code section 352.
[Citation.]†(
1121.) Under that standard, the trial court’s
“discretion must not be disturbed on appeal except
on a showing that the court exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in a manifest
(People v. Jordan (1986) 42
Cal.3d 308, 316.) It is the appellant’s
burden to demonstrate that the trial court’s decision was irrational,
arbitrary, or not “‘grounded in reasoned judgment and guided by legal
principles and policies appropriate to the particular matter at issue.’ [Citation.]â€
(People v. Superior Court
Evidence
Code section 352 allows the trial court, in its discretion to “exclude evidence
if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.†Defendant does not
make clear which of these grounds justified excluding Arturo’s testimony at the
time of the trial court’s ruling. He
does note that later, at the jury instruction conference, the trial court made
the comment that Arturo’s testimony was “slight†evidence of a prior sexual
offense, but sufficient to justify instructing the jury with CALJIC No.
2.50.01.
hindsight, Arturo’s testimony had little probative value and prejudiced
defendant by showing that he had a propensity to commit acts of sexual
misconduct against Emily.
In evaluating whether the
trial court abused its discretion, “[w]e 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.]â€
(People v. Welch (1999) 20
Cal.4th 701, 739; see also People v.
Hardy (1992) 2 Cal.4th 86, 167.) And
we review only those issues properly raised in the trial court. (Evid. Code § 353;
in limine, defense counsel did not invoke Evidence Code section 352, nor did he
claim that Arturo’s testimony would cause undue prejudice or that the potential
prejudice would outweigh its probative value.
He stated: I would object . . .
as it would be prejudicial . . . to the jury.
I don’t know when that happened.
It’s vague . . . it’s going to be prejudicial. We are focused on this one act. I know they are trying to say there’s a
pattern here. My client has a propensity
for this, but he doesn’t. And he has no
record. I think it’s going to be a
distraction, your Honor.†Had
defendant’s objection been sufficient to require the trial court to weigh the
probative value of the testimony against its probable prejudicial effect, we
would nevertheless find no abuse of discretion.
Defendant
contends that Arturo’s testimony was not probative of his propensity to commit
sex crimes, as defendant was never charged with a crime due to his hugging
Emily. We disagree. Given the defense theory that Emily was not
credible, that Hortensia and Fatima did not believe her, that they needed
confirmation from the therapist, and that the incident never happened, Arturo’s
observations were important corroboration of Emily’s account by showing
defendant’s propensity to behave in a sexual manner toward her.
In any
event, the prosecutor offered the testimony both as
intent, which is an essential element of section 288, subdivision (a). (See People
v. Martinez, supra, 11 Cal.4th at
p. 442.) Defendant has extensively
argued that the evidence suggested an innocent intent to comfort an ill and
anxious child. Thus, as respondent notes
and as defendant’s arguments regarding battery demonstrate, defendant’s intent
was an important issue. However,
defendant makes no claim that the evidence was insufficiently probative of
intent.
Indeed,
defendant has not demonstrated or even argued that the potential for undue prejudice
outweighed the probative value of Arturo’s testimony. He merely argues (again, in hindsight) that
the evidence was inflammatory and allowed the jury to disregard his “strongâ€
alibi defense. It is unlikely that
Arturo’s testimony caused the jury to reject defendant’s alibi claim,
particularly since defendant’s landlord admitted he was unable to see defendant
between 3:00 p.m. and the time his wife arrived home at 6:30 p.m. However, if Arturo’s testimony did have the
effect of countering defendant’s alibi defense, we see nothing improper in its
use for that purpose. Evidence Code
section 352 is not designed to exclude evidence simply because it might damage
the defense. (See People v. Scott (2011) 52 Cal.4th 452, 490-491;
v. Karis (1988) 46 Cal.3d
612, 638.) This sort of prejudice is inherent in all
propensity evidence and does not render it inadmissible. (See People
v. Soto (1998) 64 Cal.App.4th 966, 992.)
Defendant’s arguments also
fail to demonstrate that the admission of Arturo’s testimony resulted in
a miscarriage of justice. Under the test of
reasonably probable the verdict would have been more favorable to the defendant
absent the error. [Citations.]†(Partida,
supra, 37 Cal.4th at p. 439; see
Evid. Code, § 353; Cal. Const., art. VI, § 13.)
Defendant contends that Arturo’s testimony materially contributed
to the verdict; however, he paradoxically argues that the evidence was too
“slight†to prove defendant’s propensity to engage in sexual misconduct, and
that other evidence demonstrated that Arturo may have overreacted to what was really an
innocent hug.
title="">[7] In essence, defendant contends that weak,
easily contradicted testimony “unfairly tipped the scales against him.†Rather, Arturo’s testimony could not have had
much effect on the outcome.
There
was no reasonable likelihood of a better outcome for defendant without Arturo’s
observations. As respondent
demonstrates, Emily’s description of defendant’s erotic behavior provided
overwhelming evidence of an intent to arouse himself or the child: kissing her neck; blowing in her ear; rubbing
her breast under her bra; telling her that the chills would make her breasts
grow; asking whether she had a boyfriend; and asking whether she liked what he
was doing. Emily’s account was
corroborated by the testimony of Fatima and Arturo regarding their observations
of the demeanors and behavior of Emily and defendant after they returned from
the store and during dinner.
We also
agree with respondent that the trial court’s instructions limiting the use of
the evidence dispelled any prejudice.
Included in the charge were CALJIC Nos. 2.20, 2.24, 2.50.01, 2.50.2, and
2.81. These instructions informed the
jury how to evaluate the credibility of witnesses and determine the weight to
give their testimony, what inferences may be drawn from character evidence, and
how to evaluate evidence of a prior
sexual offense. The trial court
“cautioned and reminded†the jury that it must not consider evidence of a prior
sexual offense unless it found by a preponderance of the evidence that
defendant committed it, and the court further instructed “[B]efore a defendant
can be found guilty of any crime charged in this trial the evidence as a whole
must persuade you beyond a reasonable doubt that the defendant is guilty of
that crime.†The trial court also
instructed the jury with CALJIC No. 2.90 regarding the presumption of innocence
and the prosecution’s burden to prove guilt beyond a reasonable doubt. We presume the jurors were capable of
understanding and applying the court’s instructions, and that they followed
them. (People v. Gonzales (2011) 51 Cal.4th 894, 940.)
In sum, defendant has failed
to demonstrate that the trial court acted arbitrarily or capriciously, that the
ruling was not grounded in reasoned judgment or guided by appropriate legal
principles, or that the ruling resulted in a miscarriage of justice. (See People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 977; People v. Jordan, supra, 42 Cal.3d at p. 316.)
We conclude that the trial court did not abuse its discretion in
admitting Arturo’s testimony.
DISPOSITION
The
judgment is affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
____________________________,
J.
CHAVEZ
We concur:
____________________________,
P. J.
BOREN
____________________________,
J.*
FERNS
________________________________________________________________________
* Judge of the Los Angeles Superior
Court, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
further statutory references are to the Penal Code unless otherwise indicated.
Emily’s sisters and parents share a last name, we use only their first names to
avoid confusion and to protect their privacy.
No disrespect is intended.
