P. v. Castillo
Filed 3/29/13 P. v. Castillo CA2/8
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
JORGE ANTONIO CASTILLO,
Defendant and Appellant.
B239859
(Los Angeles
County
Super. Ct.
No. BA372843)
APPEAL from a judgment of the Superior Court of
County.
Custis
B. Rappe, 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, Senior
Assistant Attorney General, Shawn McGahey Webb and Jonathan M. Krauss, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________
Jorge Antonio Castillo appeals from a judgment which
sentences him to an indeterminate term of 80 years to life plus a determinate
term of 20 years in state prison for the sexual abuse of his stepdaughter. On appeal, Castillo contends the court
committed various instructional errors. We find no error and affirm the judgment.
FACTS
Castillo married L.M. (Mother) in
2000. Mother had two young children at
that time, A.C. and B.C. Castillo and
Mother then had J. in 2008. Castillo
lived with Mother and the children in a one bedroom apartment. A.C. and B.C. slept in a bunk bed in the
laundry room. Castillo was not regularly
employed. Mother often worked nights at
the airport as a baggage supervisor and left the children either with a
babysitter, Maria D., or Castillo.
Castillo also took care of the children when Mother went to Mexico.
In January 2011, Castillo was
charged with molesting A.C. over a period of years. He was charged with two counts of aggravated
sexual assault of a child (Pen. Code, § 269, subd. (a)(1)),
three counts of committing a forcible lewd act upon a child (§ 288, subd.
(b)(1)), one count of continuous sexual abuse (§ 288.5, subd. (a))
and two counts of sexual intercourse with a child under 10 (§ 288.7, subd.
(a)). He pled not guilty and a jury
trial commenced in January 2012.
I. A.C.’s
Testimony
A.C. testified at trial that Castillo
began sexually molesting her when she was six or seven and in first grade. Castillo threatened to hurt her or her mother
if she told anyone. The molestation
occurred more often than once a month when she was in first and second grade
and then occurred less often in third grade.
When Mother was working the night
shift, Castillo would call A.C. to the living room or the bedroom and take off
her clothes. A.C. testified that
Castillo would “put his private part in mine.â€
Although she felt “something bad†between her legs, she did not feel any
discomfort or pain. Castillo also put
his mouth in her “private part†and forced her to put her mouth on his “private
part.†If she tried to move her mouth
away from his “private part,†he would push her head back. Although he put his “private part†between
her buttocks, there was no pain or discomfort, and he did not touch her
anus. When he was done, Castillo used
toilet paper to clean a watery substance off her back and she would go back to
sleep. Castillo also made her watch a
video of “people naked and being on top of each other.†Once, when Mother was in Mexico
and her brothers were at her grandmother’s, Castillo hit her on her buttocks
when she told him she did not want to “do it.â€
Castillo and Mother separated in
February 2009 and Castillo rented a room from the children’s babysitter,
Maria. The children continued to spend
time with Castillo at Maria’s home and he continued to molest A.C., including
“put[ing] his private and everything on [her].â€
He also made her watch pornographic videos on his DVD player. A.C. testified that she felt “sad†and
“weird†when Castillo molested her.
A.C. told B.C. about the
anyone about it because she was afraid Castillo would hurt her or Mother. B.C., in turn, did not tell anyone for fear
that Castillo would hurt him. A.C. later
told her babysitter’s granddaughters, Jacqueline and Angela, that Castillo
“used to rape her.†Jacqueline told her
mother about the abuse and Jacqueline’s mother told Maria. Maria then alerted Mother to the abuse. Mother approached A.C. about the abuse but
A.C. was reluctant to admit it happened.
When she finally did, Mother reported it to the police.
II. Other
Testimony
A.C. was examined by a nurse at the
Santa Monica UCLA Sexual Assault Center in April 2010. A.C. told the nurse that Castillo made her
“touch his privates and he put his hand over mine. He told me to go up and down but fast.†According to the nurse, A.C. “indicated that
there was penile vaginal contact with some associated discomfort. Penile anal contact again with associated
discomfort†as well as oral copulation and genital fondling. A.C. also confirmed to the nurse that
Castillo would turn her over and put a liquid on her back that “came from his
privates.†A.C. saw Castillo use a
lubricant from a bottle. A.C. also told
the nurse that she was shown videotapes on the VCR in the living room and “they
were doing the same thing that he was doing to me but faster.â€
A physical examination showed no
signs of “previous trauma†but the nurse indicated that given the history of
abuse reported by A.C., she did not expect to find any evidence of injury,
particularly if Castillo used a lubricant and the last incident of abuse was
from 2009.
A.C. repeated the details of the
abuse to a Los Angeles police
officer. B.C. also told the officer that
“a couple hours after they would go to bed [A.C.] would start crying when
[Castillo] would come get her out of bed.â€
B.C. testified that he sometimes got up during the night and noticed
that A.C. was not in her bed. He noticed
that the blanket on the bed would be “moving†when he walked by the open door
of Mother’s and Castillo’s bedroom. He
believed A.C. and Castillo were in the bed because neither were anywhere else
in the small apartment. He recalled that
he witnessed this six times and saw Castillo’s bare back on one occasion. He also once saw Castillo “getting ready to
get on top†of A.C. while she was on her stomach. B.C. was afraid of Castillo because he hit
B.C. with his fists, belts or hangers.
B.C. sometimes saw A.C. cry on the way to school and realized later that
these episodes occurred after Castillo had abused her.
The babysitter testified she
sometimes saw A.C. on Castillo’s bed after he moved into her home. She once saw them watching TV on his bed and
later found a pornographic DVD in the DVD player. She told him she did not want those movies in
the house. Mother allowed Castillo to
continue to see the children even after he moved out, but stopped taking them
to see him when he “basically started becoming crazy†and stalked her in July
2009.
III. Castillo’s Admissions
Castillo
was interviewed by a Los Angeles
police detective on June 23, 2010,
after his arrest. Castillo was informed
of his Miranda
rights and waived them. When the
detective indicated that he had a medical report showing vaginal trauma,
Castillo admitted that “it only happened once†while Mother was working. While Castillo was watching pornography, A.C.
walked into the room and he “became curious[.]â€
He admitted he took off her clothes and “touched her parts.†He denied that he penetrated her vagina but
admitted to rubbing his penis on her vagina causing her “lips†to
separate. He also admitted he touched her
“lips†with his hand and scratched it with his fingernail. The detective testified at trial that it was
obvious from the context that Castillo meant A.C.’s labia when he referred to
her “lips.†Castillo denied any oral
copulation, sodomy or vaginal penetration occurred.
Castillo initially said the
molestation occurred when A.C. was seven, but later stated it occurred three to
four months before he moved out in February 2009. He said the relationship was “normal†and
that her vagina was “wet†when it happened.
He also told the detective that A.C. was the “aggressor†and “wanted to
touch him†but he would not allow it. He
also told the detective that when he touched her vagina with his penis, “she
was already sore and she said, no, no more, that it was hurting.†She then cried in the bathroom.
He understood why it hurt since “she was a virgin and it’s the
first time.†He denied any penetration,
but stated “[i]t did not go all the way
in.†His penis “only touched the
edge.†Castillo felt he should not have
done it but that he did not blame himself.
IV. Verdict
and Sentence
The jury
found Castillo guilty of the charges detailed above. Castillo was sentenced to an indeterminate
term of 80 years to life in state prison with an additional determinate term of
20 years to be served consecutively. He
timely appealed.
Castillo contends the trial
court committed instructional error when it failed to give a modified
instruction on unanimity and failed to adequately instruct the jury on lesser
included crimes. We find no error.
I. Unanimity Instruction
The trial court instructed on
unanimity in accordance with CALCRIM No. 3501.
Castillo now contends that CALCRIM No. 3501 was insufficient, and that
the trial court was also required to instruct with CALCRIM No. 3500. We first note that Castillo
No. 3501, and further, never requested that CALCRIM No. 3500 also be
given. As a result, he has forfeited
this claim. “ ‘ “A party
may not complain on appeal that an instruction correct in law and responsive to
the evidence was too general or incomplete unless the party has requested
appropriate clarifying or amplifying language.†’ †(People
v. Hill (1992) 3 Cal.4th 959, 997 overruled on other grounds by
Cal.4th 1046, 1069, fn. 13.)
Even if Castillo’s contention was
preserved for appeal, however, we find it unavailing. According to Castillo, instruction on CALCRIM
No. 3501 and CALCRIM No. 3500 was necessary “so that the jury was clear that
each count had to be based on a separate act of misconduct occurring on a
separate date and unanimously agreed upon by each juror.†Castillo contends the same act could have
formed the basis for a conviction on the two counts for forcible lewd acts upon
a child under 14 because both counts addressed the same time period. He also contends that the same act or acts
could have supported his convictions for counts 8 and 9 since both addressed
the same time period and the act of having sexual intercourse with a child under
10 (count 9) could also be considered a lewd act upon a child under 14 (count
8). “This presented the risk that
appellant could be convicted twice for a single act of sexual
intercourse.†We disagree, because CALCRIM
No. 3501 properly directed the jury on the issue of unanimity.
CALCRIM No. 3501 provides as
follows: “The People have presented
evidence of more than one act to prove that the defendant committed the crime
charged in each count. You must not find
the defendant guilty of the crime charged in any count unless, one, you all agree
that the People have proved that the defendant committed at least one of these
acts and you all agree on which acts he committed for each offense or, two, you
all agree that the People have proved that the defendant committed all the acts
alleged to have occurred during this period of time and have proved that the
defendant committed at least the number of offenses charged.â€
CALCRIM No. 3500, which was not
given, states: “The People have
presented evidence of more than one act to prove that the defendant committed
this offense. You must not find the
defendant guilty unless you all agree that the People have proved that the
defendant committed at least one of these acts and you all agree on which act
(he/she) committed.â€
A careful reading of the two
instructions reveals that the language in CALCRIM No. 3500 is incorporated into
the language of CALCRIM No. 3501.
Indeed, the only two sentences in CALCRIM No. 3500 are repeated almost
verbatim in CALCRIM No. 3501. To provide
the jury with both instructions would be redundant. Indeed, the bench notes following CALCRIM No.
3500 clearly indicate that they are alternative instructions and should not be
given together: “If the court concludes
that the modified jury instruction is appropriate, do not give this
instruction. Give CALCRIM No. 3501,
Presented.†Likewise, the bench
notes for CALCRIM No. 3501 instruct: “If the court concludes that the modified
jury instruction is appropriate, give this instruction. If the court determines that the standard
unanimity instruction is appropriate, give CALCRIM No. 3500, Unanimity.â€
The Supreme Court’s analysis in
321-322 (Jones), is instructive on
this issue. As in this case, the victims
in Jones were children who had been
molested over several years by a “resident molestor.†The victims provided “generic†testimony
about repeated acts of oral copulation but were unable to give specific details
on times and dates or other distinguishing characteristics as to individual
acts or assaults. (Id. at p. 299.) The court
analyzed the due process concerns raised when a victim is only able to provide
such generic testimony about abuse. The
court held that prosecutions based on this type of evidence satisfied due
process where the testimony was sufficiently specific as to the kind of acts
committed, the number of acts committed, and the general time period during
which these acts occurred. (
The court then addressed what type
of unanimity instruction is required in such generic testimony molestation
cases. It “reject[ed] the contention
that jury unanimity is necessarily unattainable where testimony regarding
repeated identical offenses is presented in child molestation cases. In such cases, although the jury may not be
able to readily distinguish between the various acts, it is certainly capable
of unanimously agreeing that they took place in the number and manner
described.†It explained that the
unanimity requirement would be satisfied where the victim testified that oral
copulation occurred once a month for three months and the People charged three
counts of molestation. (
counts of lewd conduct during a particular time period, the child victim
testified that such conduct took place three times during that same period, and
the jury believed that testimony in toto, its difficulty in differentiating
between the various acts should not preclude a conviction of the two counts
charged, so long as there is no possibility of jury disagreement regarding the
defendant’s commission of any of these acts.
[Citations.]†(
It concluded, “[i]n a case in which
the evidence indicates the jurors might disagree as to the particular act
defendant committed, the standard unanimity instruction should be given. [Citation.]
But when there is no reasonable likelihood of juror disagreement as to
particular acts, and the only question is whether or not the defendant in fact
committed all of them, the jury should be given a modified unanimity
instruction which, in addition to allowing a conviction if the jurors
unanimously agree on specific acts, also allows a conviction if the jury
unanimously agrees the defendant committed all the acts described by the
victim.†(Jones, supra, 51 Cal.3d at pp. 312-322.)
The Jones opinion supports the trial court’s decision to provide the
modified unanimity instruction, expressed in CALCRIM No. 3501, which provides
for both options outlined by the court.
Under the unanimity instruction given, the jury was required to either
unanimously agree Castillo was guilty of committing the same specific act
underlying each charge or agree that every act testified to by the victim was
proven, thus satisfactorily proving of each count. This was wholly proper instruction.
II. Lesser
Included Crimes Instructions
Castillo
next contends the trial court erred when it failed to instruct the jury on
attempted rape as a lesser included offense of aggravated sexual assault by
rape and attempted sexual intercourse as a lesser included offense of sexual
intercourse with a child. We also find
no instructional error on these grounds.
Both aggravated sexual assault by
rape (§ 269, subd. (a)(1)) and sexual intercourse with a child (§ 288.7)
required the jury to find penetration.
Without penetration, Castillo could only be found guilty of attempting
those crimes. Thus, attempted rape and
attempted sexual intercourse are lesser included offenses. (People
v. Atkins (2001) 25 Cal.4th 76, 88.)
Castillo contends instructions on the lesser included offenses were
required because the evidence created a question of fact on the issue of
penetration. According to Castillo, A.C.
presented conflicting testimony, stating during direct examination that
Castillo “put his private part in mine.â€
During cross-examination, however, she testified that Castillo’s penis
only touched the outside of her vagina but it never went in. Castillo himself repeatedly denied penetrating
A.C.’s vagina with his penis during his interview with the police, but admitted
he separated her “lips†or labia. He
also told the police his penis “did not go all the way in.â€
“[A] trial court errs if it fails
to instruct, sua sponte, on all theories of a lesser included offense which
find substantial support in the evidence.
On the other hand, the court is not obliged to instruct on theories that
have no such evidentiary support.†(
142, 162 (Breverman);
680, 704-705.) Evidence is sufficiently
substantial to warrant a lesser included offense instruction if it would cause
a reasonable jury to conclude that the defendant committed the lesser but not
the greater offense. (
162.) “In deciding whether there is
substantial evidence of a lesser offense, courts should not evaluate the
jury.†(Ibid.) We apply a de
novo standard of review to the trial court’s failure to instruct on a lesser
included offense. (People v. Licas (2007) 41 Cal.4th 362, 366.) Error in failing to give lesser included
instructions where required is reviewed under the harmless error standard
articulated by People v. Watson (1956)
46 Cal.2d 818, 836. (
165.)
We conclude the trial court was not
required to instruct the jury on the lesser included offenses. There was not sufficient evidence for a reasonable
jury to conclude that Castillo committed the lesser offenses of attempted rape
and attempted sexual intercourse but not the greater offenses. Contrary to Castillo’s contentions, the
testimony was not contradictory regarding whether penetration occurred. A.C. testified about multiple incidences of
molestation and repeatedly stated that he “put his private part in mine.†Although Castillo denied penetrating A.C.’s
vagina, it is clear that he believed penetration involved “go[ing] all the way
in.†It is well established under the
law that penetration, however slight, “‘of the [victim’s] external genital
organs is sufficient to constitute sexual penetration and to complete the crime
of rape even if the rapist does not thereafter succeed in penetrating into the
vagina.’†(People v. Quintana (2001) 89 Cal.App.4th 1362, 1366, quoting
224, 232 [penetration of external genital organs such as labia majora and labia
minora sufficient].) Thus, penetration
of no more than the lips of the vagina is sufficient to constitute rape. (People
v. Esposti (1947) 82 Cal.App.2d 76, 78.)
Here, Castillo admitted that he parted A.C.’s “lips†or labia. He told the police that “when I touched her
vagina with my penis she was already sore and she said, no, no more, that it
was hurting.†He also told the police
that A.C. straddled him to “sit over†his penis and that “it hurt her because
maybe it’s - I mean, she was a virgin and it’s the first time.†There was no substantial evidence warranting
instruction on the lesser included offenses.
Even if the trial court did err in
failing to give instructions on the lesser included offenses, however, it does
not require reversal. The error was not
prejudicial because it is not reasonably probable that Castillo would have
obtained a more favorable result. (
836.) Castillo himself admitted to the
police that he molested A.C. and separated her labia. Though he denied penetrating her, he
qualified it by stating that it did not go all the way in. Moreover, A.C.’s repeated descriptions of the
abuse to the nurse, to the police and at trial were consistent, including that
he put his private parts inside hers. As
discussed above, the evidence that he achieved penetration under the law was
strong. There was not sufficient
evidence from which a reasonable jury could conclude that he was guilty merely
of attempted rape and attempted sexual intercourse rather than the completed crimes.
DISPOSITION
The judgment is affirmed.
BIGELOW,
P. J.
We concur:
RUBIN,
J.
FLIER, J.
name="_ftn1" title="">
to the Penal Code unless otherwise specified.
name="_ftn2" title="">
charge was dismissed at trial.
