P. v. Motuga



















Filed 4/24/13 P. v. Motuga CA4/3



















NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. CHRIS MOTUGA, Defendant and Appellant.

G046239 (Super. Ct. No. 09CF0420) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Lance Jensen, Judge.
Affirmed in part, reversed in part, and remanded for resentencing.

Patricia J. Ulibarri,
under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Steve Oetting and Lise S. Jacobson, Deputy
Attorneys General, for Plaintiff and Respondent.

*
* *

A
jury convicted defendant Chris Motuga of all four counts of which he was
accused in the operative information:
(1) continuous sexual abuse of a child under the age of 14 (Pen. Code,
§ 288.5, subd. (a));href="#_ftn1"
name="_ftnref1" title="">[1]
(2) lewd act on a child under the age of 14 (§ 288, subd. (a)); (3) lewd
act on a child who was 14 or 15 years old and at least 10 years younger than
defendant (§ 288, subd. (c)(1)); and (4) assault with the intent to commit
oral copulation (§ 220). The jury
also found multiple victim allegations to be true pursuant to the “One Strike”
law (§ 667.61, subds. (b), (e)(4); see Stats. 2006, ch. 337, § 33,
pp. 2163-2165 [version of statute apparently utilized by court in citing
§ 667.61, subd. (e)(5) for multiple victim enhancement]), as count 1
pertained to victim No. 1 and count 2 pertained to victim No. 2. The court sentenced defendant to a total
prison term of 34 years to life.
Although we affirm the judgment of
conviction, we reverse the judgment with regard to defendant’s sentence and
remand for resentencing.



FACTS



Defendant
was the longtime boyfriend/husband of a woman named M., who is victim No. 1’s
mother and victim No. 2’s aunt. With
regard to the conduct at issue, we will separately describe the testimony of
victim No. 1 and victim No. 2.href="#_ftn2"
name="_ftnref2" title="">[2] Defendant did not testify.



Victim
No. 2

Victim
No. 2 was born in 1985. In the summer of
1999, at a family event, defendant walked next to victim No. 2 and “grabbed
[her] butt.” Victim No. 2 characterized
the touching as a “pinch.” Defendant did
not say anything or do anything after the pinch. Victim No. 2 was still 13 years old at the
time of this incident.

Just
before her 14th birthday, victim No. 2’s guardians took a vacation. M. and defendant moved into the home in which
victim No. 2 was living. Once defendant
moved into victim No. 2’s residence, defendant started touching victim No. 2 on
multiple occasions.href="#_ftn3" name="_ftnref3"
title="">[3] Using his hands, defendant touched victim No.
2’s breasts, vagina, and butt. Victim
No. 2 did not know how many times this happened, but she agreed it occurred
regularly. Victim No. 2’s clothes were
on when the touching occurred. Defendant
would sometimes initiate the contact by asking victim No. 2 to retrieve an item
from somewhere in the residence, whereupon he would follow her and touch
her.

On
one occasion, defendant asked victim No. 2 to retrieve an item from defendant’s
room. After she entered the room,
defendant followed victim No. 2 inside “and closed the door . . . and locked it
and pushed [her] on to the bed and tried to get [her] to have sex with
him.” Defendant was on top of victim No.
2 and tried to take her pants off.
Defendant kissed victim No. 2. M.
returned home at this point and defendant stopped his conduct. Victim No. 2 did not tell M. about what had
happened because M. “said she was happy with him, she was finally happy and I
didn’t want to ruin that for her.”

Victim
No. 2 testified about another incident:
“It was like the same thing — told me to go look for something. I went down the hallway and then I got there
and he was kissing me and trying to get me to go down there to give him oral
sex.” Victim No. 2 did not perform oral
sex.

M.
and defendant moved out of victim No. 2’s residence in the spring of 2000. After defendant had moved out, he continued
to touch victim No. 2 at family events.

Defendant
told victim No. 2 that she “better not tell anybody.” Victim No. 2 did not tell an adult, but she
told two of her female cousins about what happened. In July 2002, victim No. 2’s biological
father asked her if defendant had “done these things” to her.href="#_ftn4" name="_ftnref4" title="">[4] Victim No. 2 told her biological father it
was true, and her father confronted and beat up defendant.

Victim
No. 2 talked to the police soon after she had talked to her biological father
in 2002, when victim No. 2 was 17 years old.
Victim No. 2 also spoke with the police in 2009.

Defendant
never had sexual intercourse or oral sex with victim No. 2. Neither defendant nor victim No. 2 ever
masturbated the other.

>

>Victim No. 1

Victim
No. 1 was born in 1993 and was 17 years old at the time of trial. During victim No. 1’s childhood, defendant
was physically violent toward M. and M.’s children. When victim No. 1 reached the age of 12,
defendant began touching victim No. 1 inappropriately. Defendant touched victim No. 1’s breasts,
vagina, and butt. Defendant used his
hands; victim No. 1 had her clothes on.
The touching stopped when victim No. 1 reached the age of 14 or 15. While it continued, defendant touched victim
No. 1 every day or every other day.

Victim
No. 1 recalled the circumstances of the first time defendant touched her in a
sexual manner: “Well, we were
moving. We got kicked out of my
apartment. That’s when we were moving
into the motel and so we had to pack all our stuff. That’s when he started. He would grab me and he would just like pull
me onto him and hold me close to him real tight or he would grab my butt and
squeeze it and stuff like that.”

When
they lived at a motel, “he would touch me, like my breast a lot, or he would
rub up against me, if I was sitting on the bed with him[]. Or, when I was sick one time, he slipped his
hand down my pants.” Defendant convinced
victim No. 1 to let him massage her stomach because she was sick, but defendant
subsequently put his hands inside her pants by her vagina.

Another
time, victim No. 1 was walking toward the door when defendant “grabbed me from
behind and pulled me on the bed and then he was rubbing against me.” Defendant was on top of victim No. 1, who was
on her back on the bed. “He had his arms
wrapped around me and his legs were wrapped around me . . . .” Defendant was rubbing his crotch against
victim No. 1’s body. On another occasion
when defendant was driving a car with victim No. 1 in the passenger seat,
defendant parked the car and began kissing victim No. 1 on the mouth.

Victim
No. 1 eventually told her mother, M., about what had happened. She did not tell anyone right away because no
one believed victim No. 2 when she made her allegations against defendant. Defendant never had sexual intercourse or
oral sex with victim No. 1.



DISCUSSION



Sufficiency
of the Evidence With Regard to Count 4

Defendant
first asserts there was insufficient evidence presented at trial to support his
conviction on count 4, assault with the intent to commit oral sex
(§ 220). Subsequently amended on
several occasions, the applicable version of section 220 states that “[e]very
person who assaults another with intent to commit . . . oral copulation . . .
is punishable by imprisonment in the state prison for two, four, or six
years.” (Stats. 1979, ch. 944, § 3,
p. 3253.)

Count
4 refers to the incident in which defendant isolated victim No. 2 in their
shared residence in late 1999 or early 2000, then (as related by victim No. 2
at trial) kissed her and tried to “get [her] to go down there to give him oral
sex.” The police officer who interviewed
victim No. 2 in 2002 testified that victim No. 2 told him about a specific
incident in which defendant “attempted to have her give him oral sex.”href="#_ftn5" name="_ftnref5" title="">[5] There is clearly substantial evidence
supporting the finding that an incident occurred. But, as set forth in CALCRIM No. 890, the
elements of the offense include the application or attempted application of
force, as well as an applicable mental state, i.e., “[w]hen the defendant
acted, he intended to commit oral copulation.”
There is no further elaboration in the record as to why it was apparent
to victim No. 2 that defendant was attempting/intending to force her to orally
copulate him. Defendant argues on appeal
that the evidence is insufficient to allow a finding of guilt on this count.

A
reviewing court should not “‘“ask itself whether it believes that the evidence at the trial established guilt beyond
a reasonable doubt.” [Citation
omitted.] Instead, the relevant question
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.’” (People v. Johnson (1980) 26 Cal.3d 557, 576.) Substantial evidence is evidence that is
“reasonable, credible, and of solid value . . . .” (Id.
at p. 578.) Reasonable inferences may be
made from substantial evidence. But
inferences “‘“may not be based on suspicion alone, or on imagination,
speculation, supposition, surmise, conjecture, or guess work.”’” (People
v. Raley (1992) 2 Cal.4th 870, 891.)

To
constitute substantial evidence of a particular
sex crime, testimony “must describe the kind
of act or acts committed with sufficient specificity, both to assure that
unlawful conduct indeed has occurred and to differentiate between the various
types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation
or sodomy).” (People v. Jones (1990) 51 Cal.3d 294, 316; see also >People v. Raley, supra, 2 Cal.4th at pp. 890-891 [although there was clear
evidence of a forcible sexual attack of some unspecified kind on a murder
victim, her denial in the ambulance that she had been raped and statement about
“‘fool[ing] around’” was not sufficient to prove specific crime of forcible
oral copulation].)

There
is substantial evidence supporting
the conviction on count 4. By stating
that defendant tried to “get [her] to go down there to give him oral sex,”
Victim No. 2 provided sufficient evidence for the jury to conclude that
defendant was (along with kissing victim No. 2) in some way trying to force
victim No. 2 to put her mouth on defendant’s sexual organ (§ 288a). This is not a case in which the only evidence
is the victim’s “subjective evaluation” of the defendant’s intent in an
ambiguous scenario. (See >People v. Greene (1973) 34
Cal.App.3d 622, 651.) A reasonable
jury could infer victim No. 2 was characterizing defendant’s actions, not
speculating as to his intent.

>Prosecutorial Misconduct in Closing Argument

Defendant
also claims the prosecutor committed misconduct during closing argument by
mischaracterizing the evidence relating to count 4. The prosecutor stated in relevant part: “So what did we hear about? The defendant grabbed [victim No. 2], which
would be your force, your rude or offensive touching, he got her on her knees,
he took her head and he tried to get her to orally copulate him. Again, that could be more force. That’s all we’re talking about. [¶]
She described this to the Santa Ana police back in 2002 when she was
interviewed. She talked about this
incident with [the officer], and she talked to you again about it in
2011.” Obviously, some of the specific
details described by the prosecutor were not introduced into evidence (e.g.,
“got her on her knees” and “took her head”).
But the rest of the description is supported by the evidence (e.g.,
defendant “tried to get her to orally copulate him,” victim No. 2 talked about
the incident to police and at trial). It
is also a fair inference from the evidence to state that defendant “grabbed”
victim No. 2, in that the evidence indicates defendant isolated victim No. 2 in
the residence, kissed her, and tried to get her to perform oral sex.

“‘The
applicable federal and state standards regarding prosecutorial misconduct are
well established. “‘A prosecutor’s . . .
intemperate behavior violates the federal Constitution when it comprises a
pattern of conduct “so egregious that it infects the trial with such unfairness
as to make the conviction a denial of due process.”’” [Citations.]
Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it
involves “‘“the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury.”’”’”
(People v. Smithey (1999) 20
Cal.4th 936, 960.) When a claim of
prosecutorial misconduct focuses on comments made by the prosecutor to the
jury, “‘the question is whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an objectionable
fashion.’” (People v. Ochoa (1998) 19 Cal.4th 353, 427.)

“‘Statements
of supposed facts not in evidence, either because never offered, or offered and
excluded or stricken, or admitted for a limited purpose outside the scope of
the comment, are a highly prejudicial form of misconduct, and a frequent basis
for reversal. The effect of such remarks
is to lead the jury to believe that the district attorney, a sworn officer of
the court, has information which the defendant insists on withholding; or that
they may consider matters which could not properly be introduced in evidence.’” (People
v. Johnson (1981) 121 Cal.App.3d 94, 103.)

“‘As
a general rule, a defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion — and on the same ground — the defendant
made an assignment of misconduct and requested that the jury be admonished to
disregard the impropriety.’” (>People v. McDowell (2012) 54 Cal.4th
395, 436.) An admonition would not have
been futile in the circumstances of this case, as the court could have reminded
the jury that the attorney’s statements were not evidence. (Ibid.
[no objection necessary to review issue on appeal where objection would have
been futile or admonition would not have cured the harm].) Defendant did not object to the prosecutor’s
characterization of the evidence and therefore forfeited his right to appeal
this issue. (People v. Turner (2004) 34 Cal.4th 406, 422.) But defendant also argues his counsel
provided ineffective assistance by not objecting to the prosecutor’s
statements, and by this route seeks to evade his forfeiture of the issue.href="#_ftn6" name="_ftnref6" title="">[6]

Even
assuming the prosecutor’s statements were improper and defendant’s failure to
object fell below an objective standard of reasonableness, defendant did not
suffer prejudice. As is typical, the
jury was specifically instructed pursuant to CALCRIM No. 222 that “[n]othing
that the attorneys say is evidence. In
their opening statements and closing arguments, the attorneys discuss the case,
but their remarks are not evidence.” During
its deliberations, the jury specifically requested and received a “read back”
of victim No. 2’s testimony with regard to count 4. The jury demonstrated that it was focused on
victim No. 2’s testimony to answer the question of whether count 4 was proven
beyond a reasonable doubt, not the prosecutor’s description of the evidence.



>Utilization of CALCRIM No. 1191

Defendant
posits the court committed prejudicial error by instructing the jury with a
modified version of CALCRIM No. 1191. As
provided to the jury, this instruction stated in relevant part, “The People
presented evidence that the defendant committed the [four charged crimes]. These crimes are defined for you in these
instructions. [¶] If you decide that the defendant committed
one or more of these offenses beyond a reasonable doubt, 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 and did commit any of the other charged
offenses. [¶] If you conclude that the defendant committed
one or more of these offenses, that conclusion is only one factor to consider,
along with all the other evidence. It is
not sufficient by itself to prove that the defendant is guilty of any of the
other charged offenses. The People must
still prove each charge and allegation beyond a reasonable doubt.”

In
his opening brief, defendant contended “that the practice of allowing the jury
to use charged offenses to conclude that appellant is likely to have committed
other charged offenses violates due process, impedes the existence of an
impartial jury, and results in a trial neither fundamentally fair nor
reliable.” But, as defendant concedes in
his reply brief, our Supreme Court subsequently rejected his argument in an
indistinguishable case. (>People v. Villatoro (2012) 54
Cal.4th 1152, 1167-1169 [no error in providing similar instruction to that
used in instant case].) Defendant
acknowledges “that this Court must follow Villatoro
[citation] and that the instruction in Villatoro
was substantially similar to the instruction in the current case.” We therefore reject defendant’s assertion of
instructional error.



>Cumulative Error

Defendant
next asserts the cumulative effect of the court’s errors and the prosecutor’s
misconduct resulted in an unfair trial. But only one instance of misconduct arguably
occurred, and therefore no prejudice could accumulate. (See People
v. Phillips (2000) 22 Cal.4th 226, 244.)



>Imposition of Consecutive Life Terms

Applying
an unspecified version of section 667.61 (the so-called One Strike law), the
court imposed two consecutive sentences of 15 years to life with regard to
counts 1 and 2. Defendant posits the
court did not realize it had discretion to run these terms concurrently. The Attorney General agrees the terms could
have been run concurrently, but claims the record does not establish that the
court misunderstood the law.

“The
One Strike law (§ 667.61) was added to the Penal Code in 1994. [Citations.]
Like the Three Strikes Law, the One Strike law is an alternative
sentencing scheme, but it applies only to certain felony sex offenses.” “As with the Three Strikes law and statutory
sentencing enhancements, the jury must first decide whether all the elements of
the underlying substantive crime have been proven. If not, it returns an
acquittal and the case is over. If the
jury convicts on the substantive crime, it then independently determines
whether the factual allegations that would bring the defendant under the One
Strike sentencing scheme have also been proven.
Because the sentencing allegations have the potential to increase
punishment, the defendant has a Sixth Amendment right to have their truth
decided by a jury.” (>People v. Anderson (2009) 47 Cal.4th 92,
102-103.)

On
count 1, the jury convicted defendant of the continuous sexual abuse of victim
No. 1 when she was under age 14 (§ 288.5, subd. (a)). On count 2, the jury convicted defendant of
lewd conduct against victim No. 2 when she was under age 14 (§ 288, subd.
(a)). Defendant does not contest that
these convictions were subject to the One Strike law (See, e.g., § 667.61,
subds. (c)(8)-(9) [current version of One Strike law includes these offenses];
Stats. 2006, ch. 337, § 33, pp. 2163-2165 [same]). And the jury found the defendant had “been
convicted in the present case . . . of committing an offense specified in
subdivision (c) against more than one victim.”
(§ 667.61, subd. (e)(4) [current version]; Stats. 2006, ch. 337,
§ 33, pp. 2163-2165 [same language used in subd. (e)(5)].)

The
One Strike law has been amended on numerous occasions since its inception. On appeal, defendant contends the version of
the One Strike law in effect in the summer of 1999 (when count 2 occurred) is
applicable to count 2 in this case.
(Stats. 1998, ch. 936, § 9, pp. 5429-5431.) Unlike more recent versions, this former
version of section 667.61 is silent with regard to whether the court should run
imposed life sentences consecutively or concurrently. Thus, once the court determines the
appropriate number of life sentences to impose under pre-September 2006 law, it
then must exercise its discretion to determine whether to run such life
sentences consecutively or concurrently.
(§ 669; Cal. Rules of Court, rule 4.425; People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262
[“[A]lthough the statutory language of [former] section 667.61, subdivision
(b), mandates the imposition of 15 years to life for each count involving separate occasions and separate victims,
section 667.61 does not mandate that
those terms must be served consecutively”].)

In contrast, the post-September 20, 2006
versions (including the current version of the statute) provide: “For [applicable offenses], the court shall
impose a consecutive sentence for each offense that results in a conviction
under this section if the crimes involve separate victims or involve the same
victim on separate occasions as defined in subdivision (d) of Section
667.6.” (§ 667.61, subd. (i); see
also Stats. 2006, ch. 337, § 33, pp. 2163-2165.)
Thus, under more recent versions of the statute, consecutive life
sentences are mandatory for each
qualifying conviction. But recently
amended versions of section 667.61, subdivision (i), do not include in their
lists of qualifying offenses violations of section 288, subdivision (a), (lewd
act on a child under 14, count 2) or 288.5, subdivision (a) (continuous
sexual abuse of a child under 14, count 1). Thus, regardless of which
version of the One Strike law applied, the court was required to exercise its
discretion in deciding whether to sentence defendant to a consecutive or
concurrent life term on count 2.

At
the sentencing hearing, the court imposed two 15 years to life sentences and
stated “that in doing so, it is noting that count 1 and count 2 dealt with two
different victims and in the court’s opinion . . . >those cannot be run concurrent to the other.” (Italics added.) The sentencing brief prepared by the
prosecutor likewise stated that “these sentences must be served consecutively,
not concurrently . . . .”
Counsel for defendant did not provide the court with the analysis set
forth above, i.e., the court had discretion to run the sentences concurrently
under the language of the statute.

The
record suggests the court did not understand it had discretion to run the two
life sentences concurrently. Had the
court realized it had discretion to run the sentences concurrently, it may well
have decided it was appropriate to do so in light of the circumstances of the
case. To wit, count 2 was based on a
single pinch of victim No. 2’s butt, yet it qualified defendant for mandatory
life sentences under the One Strike law on counts 1 and 2. Had defendant not committed this act, he
would have been sentenced pursuant to the determinate sentencing scheme rather
than the One Strike law. The other
conduct against victim No. 2 occurred after victim No. 2 turned 14 and
therefore did not qualify for sentencing under the One Strike law. Moreover, count 1 was only eligible for
sentencing under the One Strike law because of the multiple victims finding
made with regard to counts 1 and 2.



DISPOSITION



The
judgment of conviction is affirmed, but the judgment is reversed as to
defendant’s sentence. The case is
remanded for resentencing in accordance with this opinion.







IKOLA,
J.



WE CONCUR:







ARONSON,
ACTING P. J.







FYBEL, J.