Filed 6/18/13 P. v. Sorto CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
DOUGLAS CASTELLANOS SORTO,
Defendant and
Appellant.
F063821
(Super.
Ct. No. VCF199947)
APPEAL from
a judgment of the Superior Court
of Tulare County. Kathryn T. Montejano, Judge.
Jean M.
Marinovich, 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, Charles A. French and Michael
A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury
convicted defendant Douglas Castellanos Sorto of
neighbor’s house. He contends that the
trial court erred, first, by allowing the prosecutor to impeach him by stating
he had been convicted of a “serious and violent†felony and, second, by
instructing the jury on sexual battery as a possible intended target offense
for the charged crime of burglary. Sorto
also claims there was insufficient
evidence of intent to commit either theft or sexual battery to support the
burglary conviction.
We affirm
the judgment.
FACTUAL AND
PROCEDURAL HISTORIES
Around 8:00 p.m. on January 19, 2008, Visalia
police officers responded to a report that a man had broken into a house on East
Sunnyview Avenue.
Maria Murphy and her daughter, Julia Garza, reported that a man had been
in their house; he left through a window.
Sorto was
arrested and charged with one count of first degree burglary. (People
v. Sorto (Mar. 15, 2011, F058933) [nonpub. opn.], pp. 1-2.) In the first trial, a jury found Sorto
guilty, and the court sentenced him to nine years in prison. (Id.
at p. 6.) We reversed and remanded
because the trial court erroneously admitted evidence that Sorto committed a
burglary five years earlier. (
A second
jury trial began on August 30,
2011.
case
Murphy
testified that she lives in a house on East Sunnyview
Avenue with her roommate Shelly Havner. It is a two-story house, and Havner’s bedroom
is upstairs and Murphy’s is downstairs.
Havner always locks her bedroom door.
In January 2008, Murphy’s two daughters were both living with her and
they shared the downstairs bedroom with her.
On January 19, 2008, Murphy and her
older daughter, Julia Garza, were at home watching television in the living
room. Murphy’s younger daughter was away
with her father, and Havner had gone to the coast with her boyfriend. Murphy heard a noise. She looked up and saw, through a mirror over
the fireplace, that someone was crawling up the stairs behind her. Garza called 911, and Murphy grabbed the man
by the back of the shirt and pushed him down the stairs. Murphy recognized the intruder as a person
who lived across the street. She asked
him what he was doing there, and “he took off running and went out the way he
came in.†He went into her bedroom where
he had entered and left through the window.
Earlier, Murphy had left her bedroom window open to air out the house
after she cleaned the bathroom with bleach, but there had been a screen on the
window. Now Murphy saw that the screen
was off the window. Nothing was missing
from her bedroom.
Murphy
recognized the intruder—later identified as Sorto—because she would see him in
front of his house when she was coming home from work. They would wave to each other, but she did
not have conversations with him. She
recalled that one time when she was in her car, Sorto said that she had almost
hit a dog. Another time, Murphy asked
Sorto if he had seen her daughter, and he told Murphy she was down the
street. Murphy testified that she was
not romantically involved with Sorto and she had never invited him over to her
house. She had a boyfriend at the
time.
Garza
testified that, while she was watching a movie with her mother, her mother put
her hand on Garza’s shoulder and she looked as though she had just seen a
ghost. Murphy then got up and went to
the stairs, and Garza saw in the mirror that a grown man was on the
stairs. Garza grabbed the telephone and
called 911. She heard her mother say,
“‘How dare you come into our home and break in.’†The man tried to fight with Murphy and go
through the front door to escape, but Murphy was blocking the door. The man said “if she [Murphy] ever did
anything that she was going to regret it.â€
Garza had never seen this man before.
The police later showed her a photographic lineup and she was unable to
identify the intruder.
Garza first
called 911 when she saw Sorto in the house, and Murphy called 911 after he had
left the house. An audiotape of the 911
calls was played for the jury.
Defense case
Sorto
admitted that he entered the house through the window but claimed he had been
invited by Murphy. He testified that he
and Murphy had a “side relationship for a while,†meaning they had a sexual
relationship.
title="">[2] The relationship began in the summer of 2007,
when Sorto was staying with his brother and sister-in-law, who lived across the
street from Murphy. When Murphy would go
to work, if Sorto was outside, Murphy would stop in front of his house and talk
for a minute. He said they would also
talk when she took out the trash or walked her roommate’s dog. Sorto then went to Long
Beach.
In January
2008, Sorto spent a couple weeks visiting his brother and sister-in-law. He bumped into Murphy, and they agreed to
meet the next day, Saturday,
January 19, 2008, at around 7:00
or 7:30 in the evening. Murphy told him she was going to be with her
older daughter that weekend and to come through the back. Sorto explained, “She didn’t want nobody to
think wrong of her. Everybody seen her
with the guy she’s actually dating. So
she told me she would leave the window open for me to come into the house
through the window.†She told him to go
upstairs to the upper bedroom. He had
not been in the house before.
To get to
Murphy’s backyard, Sorto hopped the fence.
He entered the house and was halfway up the stairs when Murphy started
yelling at him. She locked the front
door. He testified, “After she started
screaming, I told her what was she … doing? There was no need for whatever reason she was
mad at me. There was no need for the
cops. No need for her to make such an
exaggeration. I told her there was no
need for that.†Sorto saw that Murphy
“was getting hysterical,†and he “left the same way [he] came in.†He denied that they struggled on the stairs
or that Murphy pulled him down the stairs.
Sorto then
went to a friend’s house, not his brother’s house across the street. He testified that when he went into Murphy’s
house, he did not intend to steal anything or do anything Murphy had not
invited him to do. On cross-examination,
he agreed that he wanted to have sex with Murphy after he entered her
home.
Jose Guzman
is Sorto’s brother and lived across the street from Murphy. He testified that he saw Sorto talking to
Murphy several times. They were
“[h]ugging, touching, real close to each other.â€
On
cross-examination, Guzman said that Sorto was staying with him on January 19, 2008, and he had
seen Sorto earlier that day. When the
police asked Guzman about Sorto the night of the incident, however, he told the
officers that he did not know where Sorto was and the last time he saw him was
Christmas. He told the police that Sorto
was not staying with him.
Deynira
Castellanos was married to Guzman (they have since divorced) and lived across
the street from Murphy. She testified
that she saw Sorto and Murphy talking in her yard. They hugged, leaned in against each other,
and touched each other. Castellanos saw
them talking and “flirting and hugging each other†five or six times. She did not hear any of their
conversations.
The
prosecution’s theory was that Sorto entered Murphy’s house with the intent to
commit theft and sexual battery. In his
closing statement, the prosecutor cited evidence that Sorto had no right to be
in the house, he entered by scaling a fence and removing a screen from a
window, and when he was confronted, he struggled with Murphy and then left “as
fast as possible.†The prosecutor argued
that Sorto’s claim that a sexual relationship developed from a few short
conversations with Murphy made no sense.
Sorto’s
attorney argued that the circumstantial evidence did not show beyond a
reasonable doubt that Sorto had the intent to commit sexual battery or theft
when he entered Murphy’s house. He told
the jury that Sorto did not take anything from Murphy’s bedroom and he did not
attempt to sexually assault Murphy or her daughter. Instead, Sorto’s attorney argued, both
Sorto’s and Murphy’s behavior that night made more sense if the jury concluded
that Sorto was telling the truth and Murphy was trying to hide her relationship
with him from her daughter.
After about
an hour of deliberation, the jury found Sorto guilty of first degree
burglary. In a bifurcated proceeding on
that he had suffered a prior felony conviction that was both a strike
(§ 1170.12, subds. (a)-(d)) and a serious felony (§ 667,
subd. (a)(1)). The court sentenced
Sorto to nine years in state prison, consisting of a mitigated term of two
years, doubled because of the prior strike to four years (§ 1170.12,
subd. (c)(1)), plus five years for the serious felony conviction
(§ 667, subd. (a)(1)).
DISCUSSION
I. Impeachment with
reference to prior “serious and violent†felony conviction
On appeal,
Sorto contends that the trial court improperly permitted the prosecutor to
impeach him by stating he had previously been convicted of a “serious and
violent†crime. We agree that the
prosecutor’s question about his prior conviction was not correctly phrased, but
we conclude Sorto has failed to show prejudice.
In the
first trial, the prosecution called a Long Beach Police detective to testify
about a prior burglary committed by Sorto.
(People v. Sorto,
arrested Sorto in the backyard of a house in Long Beach. A window of the house was open and the screen
had been removed. The detective
testified that Sorto told him he had entered the house to steal “‘to take care
of his crystal meth habit.’†The
prosecutor emphasized the detective’s testimony in both her opening and closing
statements, arguing that the prior burglary was material to prove intent in the
current case. The court instructed the
jury that it could consider the prior burglary when deciding whether Sorto had
the intent to commit a theft when he entered Murphy’s house. (Ibid.) On appeal, we reversed the judgment,
concluding there was not enough similarity between the prior burglary and the
charged offense for the prior conviction to be admitted as evidence that Sorto
entered Murphy’s house with criminal
intent. (Id. at p. 9.)
On the
other hand, a witness’s prior conviction for a crime involving
that witness, subject to the trial court’s discretion under Evidence Code
section 352. (Evid. Code,
§ 788; People v. Castro (1985)
38 Cal.3d 301, 306.)
In the
second trial, at a pretrial hearing, the prosecutor indicated that if Sorto
chose to testify, he would like to impeach him with his prior felony
conviction. The court ruled that the
prosecutor could impeach with prior convictions, but “not specific as to the
exact crime.†The following discussion
occurred:
“[Prosecutor]: How would the Court want me to—my submission
would be, ‘Isn’t it true you have been convicted of a felony of a crime of
moral turpitude?’ Something along those
lines?
“THE
COURT: Correct. I think it’s a serious or violent felony.
“[Prosecutor]: It is.
“[Sorto’s
attorney]: Yes.
“THE
COURT: It’s my tentative to say, ‘Isn’t
it accurate you have previously been convicted of a violent felony that goes to
moral turpitude,’ but not the specifics of the crime.â€
When Sorto
testified on his own behalf, his own attorney elicited testimony that he had
been convicted of a prior “felony of moral turpitude.†Sorto agreed that he “took responsibility for
that†by pleading guilty. During cross-examination,
the prosecutor asked, “In 2003 you were convicted of a serious and violent
felony that consisted of a moral turpitude crime, yes?†Sorto’s attorney did not object to the
question. Sorto responded, “From what I
know, yes. It wasn’t violent. It was just a serious crime.†The prosecutor had no further questions.
The
prosecutor did not mention Sorto’s prior conviction in either his opening or
closing statement. Sorto’s attorney
referred to the prior conviction to explain why Sorto left the house after
Garza called the police. In his closing
statement, he told the jury:
“The
other thing they make a big deal about is he didn’t hang around and wait for
the police. Like he said, he has been
convicted of a felony. If someone said,
‘I’m going to call the police and tell them you broke into my house, and you
had been convicted of a felony,’ you assume the police aren’t going to believe
you. What would you do? Would you hang around and wait for all this,
and wait to sit where [Sorto] is sitting now or take your chances?â€
The jury
was instructed that it could consider a witness’s prior felony conviction in
evaluating that witness’s credibility, but a conviction “does not necessarily
destroy or impair a witness’s credibility.â€
The court told the jury, “It is up to you to decide the weight of [that]
fact and whether that fact makes the witness less believable.â€
Sorto
acknowledges that his prior burglary conviction was admissible for impeachment
purposes because burglary is a crime of moral turpitude. (People
v. Muldrow (1988) 202 Cal.App.3d 636, 646.)
Sorto also agrees it was appropriate to “sanitize†the prior conviction
by not allowing the prosecutor to describe the prior conviction as the specific
crime of burglary. (See, e.g.,
819, 822, 825 [proper to admit prior convictions, sanitized as undesignated
felonies, to impeach defendant]; People
v. Foreman (1985) 174 Cal.App.3d 175, 182 [no error to sanitize prior
burglary as “felony involving theftâ€].)
Consequently,
it was proper in this case for the jury to learn that Sorto had a felony
conviction for a crime involving moral turpitude. In addition to referring to Sorto’s prior
conviction as a “felony that consisted of … moral turpitude,†however, the
prosecutor described the prior conviction as “serious and violent.†As Sorto points out, a burglary is not
necessarily violent. (See §§ 459,
460 [definitions of burglary and first degree burglary].) Nothing in the record indicates that the prior
conviction involved violence; nor is burglary designated a “violent†felony under
section 667.5, subdivision (c).
“violent†was “severely prejudicial.â€
Under the circumstances of this case, we are not persuaded.
First,
crimes involving moral turpitude have been defined by various courts as crimes
that show a “readiness to do evil†and display moral depravity. (E.g., People
v. Massey, supra, 192 Cal.App.3d
at p. 822 [“To be relevant to credibility, the prior offense must be a
crime displaying moral turpitude or depravity, indicating a ‘general readiness
to do evil’â€]; People v. Castro,
description of a prior conviction for a crime involving moral turpitude is
admissible to impeach a witness, “notwithstanding the possibility of jury
speculation†as to the nature of the crime.
(People v. Massey,
877 [recognizing risk of jury speculation as to nature of prior convictions
admitted for impeachment purpose].) Given that Sorto could properly be impeached
with his prior conviction for a crime involving moral turpitude despite the
risk of jury speculation about the nature of that crime, it is not obvious to
this court that the error of impeaching Sorto with reference to his prior
conviction as “violent†would result in prejudice. It is questionable whether the harm to
Sorto’s credibility was greater because his prior conviction was described by
the prosecutor as violent as well as a crime involving moral turpitude.
More
important, as the Attorney General observes, in this case there was no evidence
presented that Sorto’s prior conviction involved a violent crime. In response to the prosecutor’s impeachment
question, Sorto corrected the prosecutor, stating that the prior crime “wasn’t
violent.†The prosecutor did not
challenge Sorto’s response or present any other evidence of the prior
conviction. While Sorto’s own testimony
was evidence that he had been convicted of a felony involving moral turpitude,
there was no evidence before the jury
that Sorto had been convicted of a violent crime.
Finally,
the fact that Sorto had a prior felony conviction was not emphasized by the
prosecutor. In the first trial, a
detective testified about the specifics of the burglary, and the prosecutor
stressed the detective’s testimony in her opening and closing statements,
urging the jury to find that the prior crime and the current charge were part
of a common plan or scheme. (
In the retrial, there was no evidence on the specifics of Sorto’s prior
crime, and his conviction was not mentioned at all in the prosecutor’s
arguments. The jury was also instructed
that prior crimes could be considered in assessing credibility. Under the totality of the circumstances,
including Sorto’s uncontested testimony that his crime was not violent, we
conclude it is not reasonably likely the outcome would have been different had
the prosecutor asked only if Sorto had been convicted of a crime involving moral
turpitude.
Sorto also
claims that his attorney provided ineffective assistance of counsel by failing
to object to the characterization of his prior conviction as “serious and
violent.†Given our conclusion that
there was no prejudice, his ineffective-assistance-of-counsel claim also
fails. (Strickland v. Washington (1984) 466 U.S. 668, 694 [to prevail on
ineffective-assistance claim, “defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been differentâ€].)
II. Jury instruction on
sexual battery
In this case, the trial court gave
the following jury instruction:
“To prove the defendant is guilty of [burglary], the
People must prove that: The defendant
entered a building, and when he entered a building, he intended to commit theft
or sexual battery.… [¶] A burglary was committed if the defendant
entered with the intent to commit theft or sexual battery. The defendant does not need to have actually
committed theft or sexual battery as long as he entered with the intent to do
so.â€
The court then instructed the jury
on the elements of the crimes of theft and sexual battery. Sorto contends that it was error to instruct
the jury on sexual battery as a possible target offense for the charged offense
of burglary because this theory was not supported by substantial evidence. We disagree.
“[T]he trial court must instruct on
the general principles of law applicable to the case,†which means the court
“must give instructions on every theory of the case supported by substantial
evidence .…†(People v. Young (2005) 34 Cal.4th 1149, 1200.) Substantial evidence is evidence a reasonable
jury could find persuasive. (
In determining whether an instruction should be given, the court does
not weigh the credibility of the evidence.
(Ibid.) By the same token, “[i]t is error to
give an instruction which, while correctly stating a principle of law, has no
application to the facts of the case.†(
1129.)
Burglary is defined as entering a house (or
other listed structure or space) “with intent to commit grand or petit
larceny or any felony .…â€
(§ 459.) Sexual battery is
defined as “touch[ing] an intimate part of another person while that person is
unlawfully restrained … against the will of the person touched,†which is
done “for the purpose of sexual arousal, sexual gratification, or sexual
abuse .…†(§ 243.4.)
“Proof of intent is rarely
susceptible of direct proof and may be inferred from the circumstances of the
case.†(People v. Moody (1976) 59 Cal.App.3d 357, 363.) Indeed, “‘[b]urglarious intent can reasonably
be inferred from an unlawful entry alone.’â€
(People v. Martin (1969) 275
Cal.App.2d 334, 339.) Circumstances such
as flight upon discovery may also support an inference of felonious
intent. (Ibid.)
In People v. Moody, supra,
59 Cal.App.3d at page 360, a 15-year-old babysitter awoke at 3:00 a.m. and heard a sound. She turned around and saw the defendant
standing in the hallway with his arms outstretched. She made a noise, and the defendant ran out
the front door. When the police arrived,
one officer hid in the bushes and saw the defendant come out of the yard of the
house directly behind the house where the babysitter had seen him. When the officer told the defendant to
freeze, the defendant ran; the officer chased and caught him. (Ibid.)
A jury found the defendant guilty of
first degree burglary. (
prosecution’s theory at trial was that the defendant entered the house with the
intent to commit rape or theft. On
appeal, the defendant contended there was insufficient evidence to support his
conviction for burglary. (
explaining: “Appellant entered
the structure, to wit, a dwelling house, at night after all the doors had been
locked and when discovered he had his arms outstretched toward the intended
victim, a 15-year-old girl who was dressed only in a nightgown. When discovered he ran. Thereupon when confronted by a police officer
appellant once again took flight. From
the above facts, the jury could have concluded and there was substantial
evidence to support a finding that appellant had either entered the house with
an intent to commit theft or to commit rape.â€
(Id. at p. 363.)
In People v. Matson (1974) 13 Cal.3d 35, 41-42, our Supreme Court
concluded there was sufficient evidence to support a burglary conviction based
on the circumstances that the defendant entered the victim’s apartment
surreptitiously, hid in her bathroom with the lights out, and denied having
done so.
Here, the evidence showed that Sorto
entered Murphy’s house by hopping a fence, removing a window screen, and
climbing through a bedroom window. With
Murphy and her daughter watching television in the living room, he proceeded
through the house and started up the stairs.
Sorto thought there was a bedroom upstairs. According to Murphy, he crawled up the
stairs. Garza testified that Sorto
fought with Murphy and threatened her.
He then fled the house after Garza called the police. Sorto testified that, when he entered the
house, he wanted to have sex with Murphy.
Further, Murphy lived in the house with her daughters and a female
roommate. No men lived in the
house. These circumstances were
sufficient to support an inference that Sorto entered the house with the intent
to commit sexual battery. It follows
that the trial court was correct to instruct the jury on sexual battery as a
possible target offense of the charged crime of burglary.
Sorto’s reliance on
is misplaced. In that case, the
defendant groped three different women, variously touching—over their
clothes—the victims’ thigh, chest, stomach, and crotch. (Id.
at p. 299.) The court observed
that, since sexual battery required touching of the bare skin of the victim, no
sexual battery occurs when a victim is grabbed or touched through her clothing.
evidence of attempted sexual battery by the defendant. It reasoned that there was no evidence the
defendant intended to touch the skin
of any of the victims. (
may be correct as far as it goes, but it has no application to the facts of
this case. In that case, the defendant
apparently completed the crimes he intended to commit, and those crimes did not
involve touching bare skin. Here, the
inference of Sorto’s burglarious intent is based on the circumstances of
sneaking into a house where a woman and her teenage daughter were inside
watching television, crawling up the stairs, fleeing when confronted, and
Sorto’s own testimony that he was there to have sex. He was unable to complete his intended crimes
because he was discovered and the police were called.
III. Sufficiency of evidence
Sorto next contends there was
insufficient evidence to support a finding of either intent to commit theft or
sexual battery. This claim is
without merit.
When an appellant raises a claim of
insufficiency of the evidence, “the court must review the whole record in the
light most favorable to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.†(
578.) “We presume in support of the
judgment the existence of every fact that could reasonably be deduced from the
evidence. [Citation.] We may reverse for lack of substantial
evidence only if ‘“upon no hypothesis whatever is there sufficient substantial
evidence to supportâ€â€™ the conviction or the enhancement. [Citation.]â€
(People v. Garcia (2007) 153
Cal.App.4th 1499, 1508.)
Our conclusion that the jury was
properly instructed on sexual battery also leads us to conclude there was
sufficient evidence to support a jury finding of intent to commit sexual
battery. (E.g., People v. Moody, supra,
59 Cal.App.3d at p. 363 [circumstances of entry at night into house where
15-year-old girl was babysitting, plus flight upon discovery, were substantial
evidence supporting finding defendant entered house to commit rape or theft].)
There was also
finding of intent to commit theft.
Unlawful entry, flight from the scene, and failure to provide a
plausible reason for being on the premises are sufficient evidence of intent to
commit theft to support a conviction of burglary. (People
v. Martin, supra, 275 Cal.App.2d
at p. 339.)
Finally,
Sorto argues that the cumulative errors at trial resulted in prejudice. Since we have concluded the reference to
Sorto’s prior violent crime did not cause prejudice and it was not error to
instruct the jury on sexual battery as a target offense of burglary, this claim
also fails.
DISPOSITION
The
judgment is affirmed.
_____________________
Wiseman, Acting P.J.
WE CONCUR:
_____________________
Cornell, J.
_____________________
Franson, J.
name="_ftn1" title=""> [1]Subsequent statutory references are to the
Penal Code unless otherwise stated.
name="_ftn2" title=""> [2]On cross-examination, Sorto said he had sex
with Murphy “two or three [times] at the most†prior to January 19, 2008,
and it “wasn’t a long-term relationship.â€
He had never had sex in her home.
