P. v.
Filed 1/25/13 P. v. Mendoza CA2/4
NOT TO BE PUBLISHED IN THE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 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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
RUDY NICHOLAS
MENDOZA,
Defendant and Appellant.
B238536
(Los Angeles County
Super. Ct. No. VA118246)
APPEAL from a
judgment of the Superior Court of
County, Philip H. Hickok, Judge. Affirmed.
Marcia C. Levine,
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, Susan Sullivan Pithey and Esther P. Kim,
Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Rudy Nicholas
Mendoza was convicted of two counts of oral
copulation/sexual penetration of a child and two counts of lewd acts on a
child. He contends on appeal that the
trial court erred in failing to instruct the jury, sua sponte, on the lesser
included offense of battery. Finding no reversible error, we affirm.
A. Information
By
information dated March 28, 2011, appellant was charged
with two counts of oral copulation/sexual penetration of a child under the age
of 10 (Pen. Code, § 288.7, subd. (b)/§ 289, counts one and two)
and two counts of committing a lewd act upon a child (§ 288, subd, (a), counts
three and four). The crimes allegedly
occurred between April 5, 2007 and January 29, 2009.
It was further alleged that pursuant to section 1170.12, subdivisions
(a) through (d), section 667, subdivisions (b) through (i), section 667.5,
subdivision (b), and section 667, subdivision (a)(1), appellant had suffered a
prior conviction for burglary in
January 2006.
B. Evidence
at Trial
1. Prosecution
Evidence
The
alleged victim, S., who was 10 at the time of trial in 2011, testified that
when she was six, she lived in a foster home with appellant’s mother, Esperanza
A. She had a room with a bunk bed, which
she shared with appellant for a brief period near the end of 2007. “[E]very night†when they shared the bedroom,
appellant moved her from the top bunk to the bottom bunk, took off her pants,
and put his finger in her “front [private] part.†He put his mouth on the same area. He also placed her hand on his penis and
moved it until “this gooey thing†came out.
Appellant threatened to hit S. if she told anyone. She did not tell anyone for three years, when
she told her mother with whom she had been reunited sometime earlier. On cross-examination, defense counsel asked
whether appellant had just touched “the outside of where you go pee.†S. repeated “he put his finger in me.â€
Two
recordings were played to the jury. One
was of a telephone call between appellant and S.’s mother, Diane, who attended
the same church as appellant. It was set
up by officers in an attempt to obtain an admission. Diane informed appellant of S.’s accusations
that he had “touched her in [an] inappropriate way†and “made her touch [his]
penis every night.†Appellant denied
knowing what she was referring to or that anything had happened with S. The other recording was of appellant’s
interview with officers immediately after his arrest, which occurred on the
same day as the conversation with Diane.
Appellant first denied everything.
Eventually, he admitted touching S.
He said that S. touched his penis, but denied that she manipulated it
and indicated that her touching had occurred when she jumped on him during
play. He denied putting his fingers
inside her or ejaculating in front of her.
He said he went into the bathroom to masturbate after getting aroused. He admitted the inappropriate touching
incidents happened more than once during the two weeks he stayed with his
mother. He stated he had been using
alcohol and drugs and was “high†or “buzzing†when the incidents occurred.
2. Defense
Evidence
Appellant
testified on his own behalf. He admitted
that he fondled S.’s genital area and put her hand on his penis. He denied putting anything inside her vagina
or putting his mouth on her. He denied
moving her from the top bunk to the bottom bunk. He stated the inappropriate touching happened
“a couple†of times. On
cross-examination, appellant testified he did not remember the details of how
the molestation began. He further
testified that he was using methamphetamine and drinking at the time, which
caused his mind to play tricks on him.
However, he claimed he would have remembered if he had penetrated her
with his fingers or touched her with his mouth, or if she had “ejaculat[ed]â€
him. He denied threatening S. He admitted having suffered a prior felony conviction
for residential burglary.
The
defense also called Louis Jacquez, who became acquainted with appellant when
Jacquez participated in a Christian drug rehabilitation program where appellant
was a director. Jacquez testified that
appellant had been helpful to his rehabilitation and was a truthful person with
a good reputation at their church.
Appellant’s
mother, Esperanza A., testified that S. had lived with her from April 2007
until February 2009. Appellant stayed in
her home for only two or three weeks during that period. A social worker visited the girl weekly when
she lived with Esperanza A. S. said
nothing to the social worker or Esperanza A. about being molested by
appellant. Esperanza A. continued to
babysit for S. after the girl was returned to her family and both families
attended the same church. When S. saw appellant,
she referred to him as “Uncle Rudy†and often hugged him. She indicated curiosity about appellant’s
potential relationship with her mother and said if they married, Esperanza A.
could become her grandmother.
C.
Concerning counts one and two, the court instructed the
jury: “Any person 18 years of age or
older who engages in oral copulation or sexual penetration with a child who was
ten years of age or younger, is guilty of violation of Penal Code section 288.7.†With respect to counts three and four, the
jury was instructed: “Every person who
willfully commits any lewd or lascivious act upon, or with the body, or any
part or member thereof, of a child under the age of 14 years, with the specific
intent of arousing, appealing to, or gratifying the lusts or the passions, or
the sexual desires of that person or of the child, is guilty of the crime of
committing a lewd or lascivious act upon the body of a child, in violation of
Penal Code section 288(a).â€
After
the close of evidence and prior to reading the instructions, the court asked
counsel if there were any lesser included offenses on which to instruct the
jury. Both the defense attorney and the
prosecutor said there were none.
During
final argument, the prosecutor urged the jury to convict appellant of counts
one and two based on the evidence of penetration and oral copulation. The defense attorney conceded that appellant
had committed the section 288, subdivision (a), violations alleged in counts three
and four, but contended there was insufficient evidence to support counts one
and two.
D. Verdict
and Sentencing
The
jury found appellant guilty of all four counts.
Appellant admitted the truth of the prior conviction allegation.
The
court sentenced appellant to state prison for a total of 81 years to life,
consisting of: for count one, the upper
term of 15 years, doubled; for count two, the upper term of 15 years, doubled;
for count three, the midterm of six years, doubled; and for count four,
one-third the midterm of two years, doubled, plus an additional five years due
to the prior serious felony allegation.
DISCUSSION
The parties do not dispute that a trial court has a duty to
instruct the jury on the general principles of law necessary to properly
determine the material issues in the case, including instructions on any lesser
included offenses supported by the evidence.
(See, e.g., People v. Breverman
(1998) 19 Cal.4th 142, 154 [“‘“It is settled that in criminal cases, even in
the absence of a request, the trial court must instruct on the general
principles of law relevant to the issues raised by the evidence. [Citations.]
The general principles of law governing the case are those principles
closely and openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case.†[Citation.]’â€]; People v. Reeves (2001) 91 Cal.App.4th 14, 51.) Instructions on lesser included offenses are
required “whenever evidence that the defendant is guilty only of the lesser
offense is ‘substantial enough to merit consideration’ by the jury. [Citations.]
‘Substantial evidence’ in this context is ‘“evidence from which a jury
composed of reasonable [persons] could . . . conclude[]â€â€™ that
the lesser offense, but not the greater, was committed. [Citations.]â€
(People v. Breverman,
The
definition of battery includes an “unlawful touching of the victim.†(People
v. Rundle (2008) 43 Cal.4th 76, 144, disapproved on another ground in
390.) Courts have held that battery is a
lesser included offense of certain sexual crimes, including forcible sodomy and
rape. (People v. Hughes (2002) 27 Cal.4th 287, 366; People v. Guiterrez (1991) 232 Cal.App.3d 1624, 1636, fn. 2,
disapproved on other grounds in People v.
Cromer (2001) 24 Cal.4th 889, 901, fn. 3.)
Appellant contends the evidence -- particularly, his testimony that he
fondled S. and placed her hand on his penis, but did not penetrate her or
orally copulate her as charged in counts one and two -- was sufficiently
substantial to allow the jury to reasonably conclude that the lesser offense of
battery, but not the greater of oral copulation/sexual penetration, was
committed. Accordingly, he contends that
the court erred in failing to instruct on battery as a lesser included offense
of counts one and two.
name="_ftnref2" title="">[2]
The
failure to instruct on a lesser included offense is judged under the standard
of People v. Watson (1956) 46 Cal.2d
818, 836. Under that standard, we reverse
only if an examination of the record establishes a reasonable probability that
the error affected the outcome. (
proposition that “[a]n error in failing to instruct on lesser included offenses
requires reversal unless it can be determined that the factual question posed
by the omitted instruction was necessarily resolved adversely to the defendant
under other, properly given instructions.â€
Ramkeesoon was effectively
overruled by Breverman, in which the
court explained that “the failure to instruct sua sponte on a lesser included
offense in a noncapital case is, at most, an error of California law alone, and
is thus subject only to state standards of reversibility,†and held that “such
misdirection of the jury is not subject to reversal unless an examination of
the entire record establishes a reasonable probability that the error affected
the outcome.†(19 Cal.4th at p. 165,
citing Cal. Const., art. VI, § 13.)
Assuming
the court should have instructed on the lesser included offense of battery, we
conclude any error was harmless under the applicable standard. The jury had no reason to credit the
testimony of appellant, a convicted felon, who was heard in recorded statements
changing his story from complete innocence to an admission that he touched the
girl’s vagina for sexual gratification, but did nothing else. Both pre-trial statements were at odds with
the version of events he related at trial, where he testified that he fondled
the girl and deliberately put her hand on his penis. During his testimony, he admitted that he had
lied in speaking with her mother and during the initial part of his interview
with officers when he claimed innocence.
He also testified that he was high when the encounters occurred and
could not recall all of the details. In
contrast, S.’s testimony that appellant penetrated her, put his mouth on her,
and moved her hand on his penis until a substance fitting the description of
ejaculate came out remained consistent.
The defense conceded the victim’s report of sexual abuse was true, and
identified no conceivable motive on the child’s part to exaggerate the extent of
the misconduct and no alternative explanation for her knowledge of the sexual
activities she described and the mechanics of male sexual climax. Defendant, on the other hand, had every
reason to minimize his admitted misconduct in using the girl for his sexual
gratification. On this record, we find
no reasonable probability that if instructed on the elements of battery, the
jury would have reached a different result.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA,
J.
We concur:
WILLHITE, Acting
P. J.
SUZUKAWA, J.
statutory references are to the Penal Code.
contend that appellant invited the error.
(See People v. Valdez (2004)
32 Cal.4th 73, 115 [“Invited error . . . will . . . be found if counsel
expresses a deliberate tactical purpose in resisting or acceding to the
complained-of instruction.â€]; People v.
Maurer (1995) 32 Cal.App.4th 1121, 1127 [“For the doctrine of invited error
to apply, it must be clear from the record that counsel had a deliberate
tactical purpose in suggesting or acceding to an instruction, and did not act
simply out of ignorance or mistake.â€].)
