People v. Solorzano-Garcia CA4/3 ( 2022 )

Filed 1/10/22 P. v. Solorzano-Garcia 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, G058552
v. (Super. Ct. No. 18CF1208)
NELSON EDUARDO SOLORZANO- OPINION
GARCIA,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Jonathan
S. Fish, Judge. Affirmed with directions.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew
Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
Nelson Eduardo Solorzano-Garcia (Solorzano) appeals from the judgment
after a jury convicted him of committing a lewd and lascivious act on his four-year-old
daughter G.G., having sexual intercourse with her, and engaging in oral copulation. On
appeal, Solorzano contends: (1) the trial court erred in finding G.G. was competent to
testify; (2) statements he made to the police were involuntary as they resulted from police
coercion and implied promises of leniency; (3) his trial counsel rendered ineffective
assistance by failing to seek suppression of these involuntary statements; (4) the
prosecutor erred during her closing argument by misstating the law concerning the mens
rea element of the sexual intercourse and oral copulation offenses; and (5) clerical errors
in the sentencing minute order and abstract of judgment must be corrected. We direct the
trial court to correct the clerical errors. In all other respects, we affirm the judgment.
FACTS
I. Background
Solorzano moved to the United States with his daughter G.G. when she was
about three years old. G.G.’s mother (Mother) was supposed to follow them but did not.
After Solorzano and G.G. had been in the country a few months, Mother wanted him to
send G.G. back to her, but he refused. Solorzano told Mother he would not take away
G.G.’s future and send her back to the dangerous place from which they escaped.
Solorzano and G.G. lived in a couple of different cities. He found it
difficult to find work and care for G.G. When G.G. was about three and one-half years
old, Mother arranged for her aunt (Auntie) to provide childcare. Solorzano and G.G.
moved to Santa Ana so Auntie could take care of G.G. Solorzano got a job and a place to
live.
While Solorzano worked, G.G. would stay at Auntie’s house four to six
continuous days. On Solorzano’s days off, he would pick up G.G. and take her to his
residence for two days. There, they would sleep in the same bed. G.G. followed this
2
routine for about three months, and during this time, Auntie became a second mother to
her.
Auntie knew Mother wanted G.G. back. At first she offered to help
Mother, but after taking care of G.G. for two months, Auntie told Mother she wanted
custody of G.G. herself. Auntie asked Solorzano to give her custody of G.G. so she
could take G.G. to school or the doctor. Neither Solorzano nor Mother agreed to give
Auntie custody of G.G.
II. G.G. Makes Accusations Against Solorzano
A few days before G.G.’s fourth birthday, she told Auntie about Solorzano
inappropriately touching her private parts. G.G. complained her private parts burned and
described Solorzano having sexual intercourse with her. Initially, Auntie thought G.G.
was lying. But when she bathed G.G., she noticed some “waste” in G.G.’s underwear
and decided to retain the underwear. Auntie informed Solorzano of G.G.’s allegations
and told him to take G.G. to the doctor because she might have a urinary tract infection.
Solorzano responded G.G. was “crazy.”
Auntie took G.G. to the police about 10 days later, after Auntie talked to
her about it again and G.G. was very convincing. She told G.G. to tell the police the
truth, but she did not specifically tell G.G. what to say. Officer Maria Alvarez
interviewed G.G. and Auntie at the police station. Auntie gave the police two pairs of
G.G.’s underwear she had collected.
Alvarez took G.G. and Auntie to a local hospital, where a forensic nurse
conducted a sexual assault examination of G.G. G.G. had a normal hymen with a smooth
rim and no visible injuries. Given these findings, the nurse could neither confirm nor
negate sexual abuse. The nurse obtained a buccal swab from G.G. and swabbed several
parts of her body for DNA testing, including G.G.’s stomach, inner thighs, mons pubis,
anus, vulvar, and vestibule. After the examination, G.G. was taken to the Orangewood
Children and Family Center.
3
III. Solorzano’s Police Interviews
An officer arrested and interviewed Solorzano. In the interview, Solorzano
denied any inappropriate contact between himself and G.G. The next day, Detectives
Gerardo Corona and Joanna Perez reinterviewed Solorzano at the men’s central jail
because Corona wanted to obtain more information. The interview was conducted in
Spanish, Solorzano’s native language. Solorzano stated the arresting officer told him that
G.G. had accused her “papá” of touching her or kissing her private parts. Solorzano
denied the allegations and denied G.G. called him “papá.” He told Corona that G.G.
called him “bebe” (baby), not “papa,” and he had informed the arresting officer those
were not his daughter’s words.
When asked if he accidentally touched G.G. inappropriately, Solorzano
responded affirmatively. He described two times when he might have touched G.G.’s
vaginal area. One time occurred when he was playing with G.G. Solorzano explained he
often played with G.G. by grabbing and squeezing her buttocks and asking her “mami, de
quien es este [c]ulito?” (mommy, whose little ass is this?). Once when he did this, it felt
like he touched G.G.’s vaginal area, and G.G. told him it hurt.
Solorzano described another time when he was helping G.G. clean herself.
He explained G.G. had been with him for three days and had not showered because it was
cold. Solorzano said he cleaned G.G.’s buttocks and vaginal area with wet wipes but did
not otherwise touch her. Corona told Solorzano helping G.G. clean herself was not
touching her inappropriately, and he pushed Solorzano to explain how he touched her
inappropriately.
Later in the interview, Solorzano said he touched G.G. when he checked
her and cleaned her, but he denied putting his mouth on her “part.” He said G.G. was
lying when she said he did so. Using a ruse, Corona told Solorzano they had found his
saliva on G.G. and asked Solorzano to explain why it was on her. Solorzano responded
he had no idea. After Corona repeatedly told Solorzano they found his saliva on G.G.’s
4
vaginal area, Solorzano admitted he kissed G.G. and stated, “it was a fucking mistake.”
He repeated the story about G.G. not showering for three days while she was staying with
him. He said when G.G. came back from the bathroom she told him it hurt when she
peed, so he used the wet wipes to clean her. When he cleaned her, he kissed her vaginal
area as a type of affection. He did not have lewd intent or intend to hurt her, but he
accepted he made a mistake in kissing her.
At points during the interview, Solorzano stated he felt very bad, was
ashamed, and believed he hurt G.G. He said it would be good for him to talk to a
counselor. He also said it was possible G.G. came onto him. When asked to explain, he
only stated G.G. would go through his cell phone sometimes.
IV. G.G.’s Interview
After interviewing Solorzano, Corona attended the social worker’s
interview of G.G. at the Child Abuse Services Team (CAST) facility. At the beginning
of the interview, the social worker explained to four-year-old G.G. that she should only
say things that are true while they were talking. The social worker tested G.G.’s
understanding of the difference between true and not true statements. G.G.’s answers
reflected she understood the difference and G.G. promised to tell the truth.
When asked what happened, G.G. responded her “daddy threw milk here”
and pointed to her crotch area. She indicated her father had milk that came from his
crotch; she did not know what his part was called. Using two teddy bears to demonstrate,
G.G. explained at night, her father took off her clothes and his, lied on top of her, and
went “tun, tun, tun.” When he did that, it felt bad and hurt. G.G. asked him what he was
doing, and he said nothing. G.G. would tell herself to go to sleep.
G.G. used a teddy bear to show the social worker the area where her father
put his penis between her legs. She did not know what the part between her legs was
called; she called it “toto.” She said her “toto” hurt and bled but did not hurt at the time
of the interview.
5
Again using the teddy bears, G.G. demonstrated her father would spit
between her legs, raise her legs, and get on top of her. G.G. said he weighed a lot and it
felt bad. She also demonstrated him putting his legs around hers and holding her hand
with his hand. She said her father did something to her buttocks and it hurt, but she did
not know what he did. G.G. complained her mouth hurt and her father did something to
her mouth, but she could not explain what.
G.G. indicated her father did “tun, tun, tun” one time, put her legs up and
was on top of her one time, and spit between her legs many times. She said he kissed her
on the mouth, cheeks, and neck many times. Throughout the interview, G.G. referred to
Solorzano as “papi” and said he called her “mami.”
V. Forensics
The swabs taken during G.G.’s sexual assault examination and the two
pairs of her underwear were submitted to the Orange County Crime Lab for forensic
analysis. A forensic scientist tested each swab for acid phosphatase, an enzyme found in
high concentrations in seminal fluid. It was only a presumptive test because the enzyme
is also found in lower concentrations in other biological fluids. The acid phosphatase
enzyme was detected on the swabs taken of G.G.’s vestibule, vulva, external anal,
stomach, and buccal. The scientist then used a microscope to examine portions of these
swabs. She found three spermatozoa (sperm cells) on one of the swabs of G.G.’s
vestibule and submitted the swab for DNA extraction and analysis.
All of the swabs were also tested for amylase, an enzyme found in high
concentrations in saliva and found in lower concentrations in urine and other biological
fluids. Low levels of amylase were detected on the swabs taken of G.G.’s vulva, mons
pubis, and her inner thighs.
G.G.’s underwear was also tested. No seminal fluid or spermatozoa were
detected on either pair. One pair of underwear was positive for amylase, so the scientist
excised a portion of it and submitted it to another part of the lab for DNA extraction.
6
A forensic scientist in the lab’s DNA section analyzed two swabs of G.G.’s
vestibule. A differential extraction was performed on both swabs, splitting the sperm
fraction from the non-sperm fraction. In the non-sperm fraction of both swabs, there was
no DNA foreign to G.G. The sperm fraction in one swab “had such a low DNA quant” it
was not suitable for DNA typing. DNA typing was attempted on the sperm fraction in
the second swab, even though the quantitation was low. The lab obtained a low-level
partial profile, but it was insufficient for comparison. No DNA foreign to G.G. was
detected in the vulva or mons pubis swabs or on her underwear.
VI. Charges and Trial Proceedings
An amended information charged Solorzano with two counts of committing
a lewd and lascivious act upon G.G., a child under the age of 14 years (Pen. Code, § 288,
subd. (a);1 count 1 (oral copulation) & count 2 (touching)); two counts of sexual
intercourse with a child 10 years of age or younger (§ 288.7, subd. (a); counts 3 & 4); and
oral copulation with a child 10 years of age or younger (§ 288.7, subd. (b); count 5). As
to count 1, it was further alleged Solorzano engaged in substantial sexual conduct with
G.G., a child under the age of 14 years (§ 1203.066, subd. (a)(8)).
Prior to trial, the prosecution filed a motion in limine, arguing Solorzano’s
statements during his interview with Corona were admissible during its case-in-chief.
The defense opposed the motion, asserting Solorzano’s statements were obtained in
violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436. When the trial
court inquired whether the defense was also challenging the admissibility of Solorzano’s
statements on voluntariness grounds, defense counsel affirmed the objection was based
only on Miranda. After conducting an evidentiary hearing, the court concluded there was
no Miranda violation and Solorzano’s statements were admissible.
1 All further statutory references are to the Penal Code, unless otherwise
indicated.
7
During the trial, the recording of Corona’s interview of Solorzano was
played for the jury. 2 Corona testified regarding various tactics he used during the
interview. He explained he engaged in rapport building in the beginning of the interview.
As the interview developed, he challenged what he believed were inconsistent statements
by Solorzano. Solorzano repeatedly denied putting his mouth on G.G.’s vagina. To
challenge this denial, Corona falsely told Solorzano his saliva had been found there.
When Solorzano denied G.G.’s allegations, Corona threatened to go tell G.G. she was a
liar, but this was also a ruse. Several times during the interview Corona interrupted
Solorzano as he started to answer a question and accused Solorzano of lying. Corona told
Solorzano he was giving him an opportunity to tell the truth so Corona could tell the
District Attorney Solorzano was honest. In mentioning the District Attorney, Corona was
trying to imply he had a way to talk to the District Attorney to make it easier on
Solorzano if he stopped maintaining his innocence and said what Corona wanted to hear.
Several times during the interview, Corona suggested, “‘It was just a mistake,’” telling
Solorzano what he wanted him to say. Shortly after Solorzano admitted kissing G.G.’s
vagina as a sign of affection when he believed she had a urinary tract infection and saying
it was a mistake, Corona ended the interview.
In addition to Corona’s testimony, the jury heard testimony, summarized
above, from G.G., Auntie, Officer Alvarez, the forensic nurse who conducted G.G.’s
sexual assault examination, and two forensic scientists from the crime lab. The jury also
saw the video of G.G.’s CAST interview. At the time of trial, Auntie had not seen G.G.
in more than two and one-half years since accompanying her to the sexual assault exam.
The forensic nurse testified it is possible for an adult male to engage in
sexual intercourse with a child and leave no visible signs of physical injury. The nurse
explained it is possible for an adult male to engage in sexual penile penetration of a small
2 As the interview was conducted in Spanish, the jurors were provided
transcripts of the interview with English translations.
8
female child and the child have a normal, smooth rim hymen if the penetration is partial
and “ever so slight.” Although full penetration with no injury is possible, the nurse had
not seen it with a child. The nurse also testified a genital injury in a young child could
heal over a 10-day period. Addressing vulva coitus, the nurse indicated the absence of
any tearing of the hymen or changing of the smooth rim was consistent with this type of
penetration. The absence of physical findings during G.G.’s sexual assault exam neither
confirmed nor negated vulvar coitus penetration.
At trial, G.G. testified Solorzano touched her private parts, where she went
“pee pee” and “poo poo.” However, she could not remember the details of what
happened. During and after G.G.’s testimony, the defense moved to disqualify her as a
witness on the ground she was incapable of understanding her duty to tell the truth. Both
times the court denied the motion, finding G.G. understood she had to tell the truth.
The jury found Solorzano guilty of counts 1, 3, and 5 and found true
count 1’s allegation of substantial sexual conduct. The jury returned not guilty verdicts
on counts 2 and 4. The court imposed a total sentence of 40 years to life, comprised of
25 years to life on count 3 and a consecutive term of 15 years to life on count 5. The
court imposed a six-year term on count 1 but stayed the sentence under section 654.
DISCUSSION
I. G.G.’s Competency to Testify
Solorzano contends the trial court erred by concluding G.G. was competent
to testify and denying his motion to strike her testimony. We disagree.
A. Applicable Law
“When a witness’s competency to testify . . . is questioned, we start from
the general rule that ‘[e]xcept as otherwise provided by statute, every person, irrespective
of age, is qualified to be a witness and no person is disqualified to testify to any matter.’
(Evid. Code, § 700.) A person is completely disqualified from testifying under Evidence
Code section 701, subdivision (a) if he or she is ‘(1) [i]ncapable of expressing himself or
9
herself concerning the matter so as to be understood . . . or [¶] (2) [i]ncapable of
understanding the duty of a witness to tell the truth.’ ‘Capacity to communicate, or to
understand the duty of truthful testimony, is a preliminary fact to be determined
exclusively by the court, the burden of proof is on the party who objects to the proffered
witness, and a trial court’s determination will be upheld in the absence of a clear abuse of
discretion.’ [Citation.]” (People v. Flinner (2020) 10 Cal.5th 686, 740 (Flinner).) “A
trial court abuses its judicial discretion when it renders a ruling that is absurd or beyond
the bounds of reason, all of the circumstances considered. [Citation.]” (In re Ana C.
(2012) 204 Cal.App.4th 1317, 1326 (Ana C.).)
Solorzano contends the trial court abused its discretion by denying his
“motion to disqualify [G.G.] as a witness and strike her testimony because she was
incapable of expressing herself concerning the matter so as to be understood and/or she
was incapable of understanding her duty as a witness to tell the truth.” Because “[t]he
issue of a witness’s competence largely involves an evaluation and weighing of the
evidence concerning the issue” (Ana C., supra, 204 Cal.App.4th at p. 1325), we review
G.G.’s testimony in detail.
B. Trial Court Proceedings
G.G. was six years old when she testified. When she was called to the
witness stand, the clerk asked G.G. if she promised to tell “the truth, the whole truth, and
nothing but the truth.” Initially, G.G. responded she did not understand, but when the
clerk repeated the question, G.G. responded affirmatively. The court conducted a brief
voir dire of G.G. Among the questions the court asked her was whether she knew the
difference between the truth and a lie. After G.G. said she did, the court questioned G.G.
further to determine the extent of her understanding, and the following exchange
occurred:
“[Court]: Okay. So if I were to say that you are wearing a yellow
sweatshirt, would that be the truth or a lie?
10
“[G.G.]: Lie.
“[Court]: If I were to say that you were wearing like a pink sweatshirt with
hearts on it, would that be the truth or a lie?
“What color do you think that sweatshirt is? Is it red or pink?
“[G.G.]: Red.
“[Court]: Okay. So if I were to say that you’re wearing a red sweatshirt
with hearts on it, would that be the truth or a lie?
“[G.G.]: Truth.
“[Court]: Okay. Do you understand the difference between a truth and a
lie?
“[G.G.]: A lie.
“[Court:] No. My question is do you know what the difference is between
telling the truth and telling a lie? [¶] Do you understand the question?
“[G.G.]: No.”
The court informed G.G. the prosecutor and defense counsel were going to
ask her questions and “[t]he only thing” she had to do was “tell the truth.” The court
explained to G.G. if she was asked a question and she did not know the answer, the
truthful answer would be “‘I don’t know’” and if she did not remember something, the
truthful answer would be “‘I don’t remember.’” G.G. indicated she understood. The
court cautioned G.G. not to answer questions if she did not know what the truth was and
asked G.G. if that made sense. G.G. responded, “I don’t remember.” The court remarked
it sounded like G.G. “kind of” got what the court was saying.
The court explained to G.G. how the interpreter sitting next to her would
translate for her, and G.G. indicated she understood. The court informed G.G. she could
take a break when she wanted, she just had to let them know she wanted one. The court
also advised G.G. to let them know if she did not understand something because they had
11
to make sure she understood everything, and the court asked G.G. if that made sense.
When G.G. responded “No”, the following exchange occurred:
“[Court]: No? I’m just saying if you ever have a question, just tell us you
don’t understand. Okay? Because maybe there will be words you don’t understand or
something like that. Just tell us ‘I don’t understand.’ Okay?
“[G.G.]: I don’t remember. I didn’t understand.
“[Court]: Okay. So those are the answers you can give.”
The court permitted the prosecutor to proceed with her examination of G.G.
Early on, the prosecutor reminded G.G. it was “really important” everything G.G. said
when “sitting in the big, important chair” was “the truth” and “[t]hings that really did
happen.” G.G. indicated she understood. The prosecutor questioned G.G. to determine
whether she understood the difference between telling the truth and lying:
“[Prosecutor]: And I know the judge was asking you about your sweatshirt.
If you were to sit on that chair and tell us you were wearing a yellow sweatshirt, would
that be really something that’s happened? Would that be truth?
“[G.G.]: No.
“[Prosecutor]: Right. So that wouldn’t be okay to say.
“Would you agree with me?
“[G.G.]: Uh-uh. No.
[¶] . . . [¶]
“[Prosecutor]: Okay. So what I’m trying to ask you is whether you
promise -- when you’re sitting in that big, important chair, if everything you say is going
to be the truth, only things that really happened.
“[G.G.]: Yes.
“[Prosecutor]: Okay. And if you were to sit in that chair and tell me you
were wearing a yellow sweatshirt, that wouldn’t be telling me the truth; is that right?
“[G.G.]: Lie.
12
“[Prosecutor]: Exactly.
“You promise you’re going to tell the truth?
“[G.G.]: Yes.
“[Prosecutor]: So the judge was also telling you that if anybody asks you
any questions in this room while you’re sitting in that big, important chair, and you don’t
know the answer, it’s okay to say ‘I don’t know.’ Okay?
“[G.G.]: Okay.
“[Prosecutor]: And if anybody asks you a question in that big, important
chair, and you don’t remember the answer, that’s okay. Okay?
“[G.G.]: Okay.
“[Prosecutor]: Or if I ask you a question and I use a funny word, and you
don’t really know what I mean, it’s okay to say ‘Lady, I don’t know what you’re talking
about.’
“[G.G.]: Okay.
“[Prosecutor]: Okay. But we want you to make sure you’re telling us
things that really happened, and don’t guess or make things up. Okay?
“[G.G.]: Okay.”
In response to the prosecutor’s questions, G.G. said how old she was and
talked about school and with whom she was living at the time of trial. G.G. testified she
used to live with her father in Santa Ana. When the prosecutor asked G.G. to look
around the courtroom, G.G. stated she wanted to go to the bathroom. The court released
the jurors for their morning break and permitted G.G. to go to the bathroom.
During the break, defense counsel moved to disqualify G.G. as a witness,
arguing she was confused and struggling with the concepts of the truth and a lie.
Articulating the basis for his motion, defense counsel stated, “I think [on] more than one
occasion when asked if she knows the difference between a lie and a truth, she pauses for
a very long time. Maybe the first time, I can understand that. But then each additional
13
pause has convinced me that she’s having trouble with the concept.” Defense counsel
further asserted some of G.G.’s answers were not responsive to the questions asked.
The prosecutor responded G.G.’s answers showed she did not have
difficulty understanding the concepts of telling the truth and only talking about things
that really happened but she did have difficulty with certain words. The prosecutor
pointed out when G.G. was given examples of a truth and a lie, she was able to identify
each and G.G. indicated she understood she needed to say things that were true and really
happened.
After referencing Evidence Code sections 700 and 701, 3 which govern
witness competency, the court denied the defense motion. Explaining its reasoning, the
court stated, “There was some ambiguity with her, and I think some -- because of her age,
an inability to express herself about her understanding. I was left with the feeling that
she understood that she has to tell the truth.” However, the court indicated “cross-
examination might be fodder for” the defense to make the motion again.
When the prosecutor resumed her direct examination, G.G. answered a few
questions about Mother. The prosecutor asked G.G. if she saw her father in the
courtroom when she looked around, and G.G. responded, “No.” G.G. answered she
could not remember to several of the prosecutor’s questions: she could not remember
when or why she stopped living with her father; whether she slept in the same bed with
him; whether he took off her clothes; whether her father hurt her at night when she was in
bed; whether Auntie took care of her while she lived with her father; or whether she told
Auntie that her father hurt her. However, G.G. did remember Auntie and spending time
with her. She also remembered talking to a police officer with Auntie but did not
remember if she told the officer her father hurt her private parts. Nor did G.G. remember
her CAST interview, but she recently had seen a video of it.
3 When reading Evidence Code section 701, the court misspoke and referred
to it as Evidence Code section 702.
14
When asked if Auntie told her to say “bad things” about her father, G.G.
answered, “Yes.” At first, G.G. could not remember what Auntie told her to say, but then
testified Auntie told her to tell the police officers her father hurt her private parts. The
prosecutor asked G.G. whether her father actually hurt her private parts or if it was
something that did not really happen and G.G. responded she did not remember. The
prosecutor reminded G.G. that she had to talk about things that really happened and she
could not say things that did not really happen. G.G. indicated she understood. The
prosecutor asked G.G. if her father hurt her private parts or if her Auntie just told her to
say that, and G.G. answered, “Hit my body parts.”
After G.G. identified her private parts as places where she goes “pee pee”
and “poo poo,” the following exchange occurred:
“[Prosecutor]: Did your daddy ever touch your private parts, the part where
you go pee pee or the part where you go poo poo?
“[G.G.]: Yes. Yes.
“[Prosecutor]: Are you saying that because that’s what really happened?
Or because [Auntie] told you to say that?
“[G.G.]: My [Auntie] told me.
“[Prosecutor]: Okay. Did your [Auntie] tell you to tell the truth, to say
what really happened?
“[G.G.]: Yes.
“[Prosecutor]: Or did she tell you to tell people daddy touched your private
parts?
“[G.G.]: Yes.”
The prosecutor again reminded G.G. to make sure she only said things that
really happened, and again, G.G. indicated she understood. The court excused the jury
for another break when G.G. became very upset. When questioning resumed, the
following exchange occurred between the prosecutor and G.G.:
15
“[Prosecutor]: [G.G.], did your daddy touch your private parts or is that a
story that [Auntie] made up?
“[G.G.]: It’s a story.
“[Prosecutor]: Okay. Did daddy touch your private parts?
“[G.G.]: Yes.
“[Prosecutor]: Okay. So when [Auntie] told you to tell the police, is that
because it happened? Or because she was telling a lie? She made it up?
[¶] . . . [¶]
“[G.G.]: I don’t know.
[¶] . . . [¶]
“[Prosecutor]: Regardless, forget anything Auntie [ ] said about daddy.
Okay? Just you and me here. Forget [Auntie].
“Are you telling us that daddy touched your private parts because it really
happened? Or it didn’t really happen?
“[G.G.]: Happened.
“[Prosecutor]: Did anybody else touch your private parts?
“[G.G.]: No. Only my dad.”
Under cross-examination, G.G. indicated she did not know if she would get
in trouble or what would happen if she did not tell the truth. But she believed her father
would get in trouble if she did not tell the truth. G.G. understood they were there for her
to tell people what happened with her father. When defense counsel asked G.G. if she
believed it was okay to guess when answering their questions, G.G. did not respond and
stated she wanted to go to the bathroom. The court gave G.G. and the jurors another
break.
After the break, cross-examination resumed:
“[Defense counsel]: When we left, I was trying to find out if you think it’s
okay to guess at the answers to the questions that you’re being asked.
16
“[G.G.]: Yes.
“[Defense counsel]: So you think it’s okay to guess at the answers?
“[G.G.]: No.
“[Defense counsel]: You have to help me understand. I’m a little
confused. First you said ‘yes’; then you said ‘no.’
“Are you trying to figure out what’s the right answer to the question right
now?
“[G.G.]: No.
“[Defense counsel]: Okay. So which one is the answer you want to give
us?
“[G.G.]: No.
“[Defense counsel]: No. Okay.
Are you -- it sounds like you’re having trouble with your memory; is that
right?
“[G.G.]: I don’t know.
“[Defense counsel]: Okay. You’ve answered ‘I don’t know’ a lot, right?
“[G.G.]: Yes.”
After G.G. completed her testimony, the defense moved, outside the
presence of the jury, to strike G.G.’s testimony on the ground she was not qualified as a
witness. The defense argued G.G.’s testimony showed she did not understand the
difference between a truth and a lie. The court denied the motion and explained its
reasoning: “I did not take her testimony to support that she’s incapable of her duty to tell
the truth. I found there’s sufficient evidence that she understands her duty to tell the
truth. [¶] I’m not commenting on her credibility about the facts of the -- the alleged facts
of the case . . . I think there was sufficient evidence on the record that she understands her
duty to tell the truth and is capable of doing so.”
17
C. Analysis
Solorzano asserts “it is evident” from the record G.G. “did not understand
her duty to tell the truth as a witness and/or she was incapable of expressing herself
concerning the matter so as to be understood.” Initially, we note this claim is broader
than the one he raised below. In the trial court, Solorzano argued G.G. should be
disqualified from testifying because she was incapable of understanding her duty to tell
the truth (Evid. Code, § 701, subd. (a)(2)); he did not assert she was incapable of
expressing herself so as to be understood (Evid. Code, § 701, subd. (a)(1)), as a separate
ground for disqualifying her as a witness. A witness competency issue is a “fact-based
issue [that] presents an ideal circumstance for applying the forfeiture rule.” (Ana C.,
supra, 204 Cal.App.4th at p. 1325.) Nevertheless, we need not decide whether Solorzano
forfeited his challenge under Evidence Code section 701, subdivision (a)(1), as we
address both portions of his claim on their merits to forestall a claim of ineffective
assistance of trial counsel. (People v. Lua (2017) 10 Cal.App.5th 1004, 1014.) Doing so,
we conclude the trial court was within its discretion in permitting G.G. to testify.
The record does not support Solorzano’s contention G.G. was incapable of
communicating so as to be understood. G.G. was capable of answering questions
presented to her regarding the matter before the court. Admittedly she had difficulty with
some questions that were compound or complex, but she had the capacity to
communicate and answer the questions asked of her. She understood she was there to tell
people what happened with her father. G.G. answered questions about her age, school,
who she previously lived with, who she was currently living with, where Mother lived,
and spending time with Auntie. She also testified as to what she remembered about her
father touching her private parts and talking to a police officer.
Solorzano relies on the fact G.G. was unable to identify him in the
courtroom as support for his argument she was incapable of expressing herself regarding
the matter. We afford this fact little, if any, significance. By the time of trial, it had been
18
more than two and a half years since G.G. had seen her father, and there is no indication
in the record as to whether or how much Solorzano’s appearance changed in this interim.
Solorzano also complains “most of [G.G.’s] testimony was comprised of
responding ‘yes,’ ‘no,’ ‘I don’t know,’ or ‘I don’t remember’ to leading questions.” It
was challenging for either counsel to get a lot of information from G.G. But her
difficulties in remembering the events from 32 months prior were credibility issues for
the jury to consider. Her “failure to remember aspects of the subject of the testimony”
does not disqualify her as a witness. (People v. Mincey (1992) 2 Cal.4th 408, 444
(Mincey).) In Mincey, our Supreme Court was confronted with the issue of whether a
five-year-old witness was competent to testify. (Id. at p. 443.) Concluding the trial court
was within its discretion in finding the child competent, the Supreme Court stated,
“[i]nconsistencies in testimony and a failure to remember aspects of the subject of the
testimony . . . do not disqualify a witness. [Citation.] They present questions of
credibility for resolution by the trier of fact. [Citations.]” (Id. at pp. 444-445.)
As additional support for his argument G.G. was incapable of expressing
herself regarding the matter, Solorzano points to G.G.’s inconsistent answers regarding
whether her father touched her private parts or whether it was a story made up by Auntie.
“But contradictory testimony does not suffice to show incapacity to understand the duty
of truth, or to express oneself coherently.” (People v. Avila (2006) 38 Cal.4th 491, 589.)
Contradictions in G.G.’s testimony were for the jury to consider in evaluating her
credibility. (Id. at p. 590.) On cross-examination, defense counsel emphasized G.G.
gave inconsistent answers to a question and had answered several questions with “‘I
don’t know.’” The deficiencies in G.G.’s capabilities as a witness were not hidden from
the jury, “which was given an ‘ample basis upon which to judge the reliability of [her
statements].’ [Citation.]” (Flinner, supra, 10 Cal.5th at p. 742.) These deficiencies,
however, were not grounds for disqualifying G.G. as a witness. (See People v. Lewis
(2001) 26 Cal.4th 334, 361 [concluding witness diagnosed as having intellect of seven-
19
year-old, who had “difficulty with complex questions and often responded in incomplete,
sometimes nonsensical, sentences”, was not disqualified from testifying].)
Nor does the record support Solorzano’s contention the court abused its
discretion by finding G.G. was able to understand her duty to tell the truth. When given
examples by both the court and the prosecutor, G.G.’s responses showed she understood
the difference between the truth and a lie. G.G. indicated she understood she had to tell
the truth and promised to do so and only say things that really happened. The trial court
had the opportunity to observe G.G. and her demeanor in responding to the questions.
No abuse of discretion appears here. (See Mincey, supra, 2 Cal.4th at pp. 444-445
[concluding trial court did not abuse discretion in ruling five-year-old competent to
testify after ascertaining she could distinguish between truth and falsity].)
We conclude the trial court did not abuse its discretion in finding G.G.
competent to testify and letting the jury evaluate her credibility. Accordingly, we reject
Solorzano’s contention.
II. Admission of Solorzano’s Statements to the Police
Solorzano contends statements he made during Corona’s interview should
have been suppressed because they resulted from police coercion and implied promises of
leniency. The Attorney General argues Solorzano has forfeited his argument by failing to
raise it below. We agree. Unless raised in the trial court, a “claim of involuntariness of
defendant’s statements and confession is not preserved for appeal. [Citations].” (People
v. Cruz (2008) 44 Cal.4th 636, 669.) The issue must be raised below to give the parties
an opportunity “‘to fully litigate this theory’” and the trial court an “‘opportunity to
resolve material factual disputes and make necessary factual findings.’ [Citation.]”
(Ibid.) Thus, “a claim of involuntariness generally will not be addressed for the first time
on appeal. [Citations.]” (People v. Ray (1996) 13 Cal.4th 313, 339.)
Anticipating the Attorney General’s forfeiture argument, Solorzano asserts
his trial counsel’s failure to challenge the admission of his statements on voluntariness
20
grounds constitutes ineffective assistance in violation of his right to counsel under the
federal and state Constitutions. “[A] defendant claiming ineffective assistance of [trial]
counsel . . . must show both deficient performance under an objective standard of
professional reasonableness and prejudice under a test of reasonable probability of a
different outcome.” (People v. Osband (1996) 13 Cal.4th 622, 700 (Osband).)
“On direct appeal, a conviction will be reversed for ineffective assistance
only if (1) the record affirmatively discloses counsel had no rational tactical purpose for
the challenged act or omission, (2) counsel was asked for a reason and failed to provide
one, or (3) there simply could be no satisfactory explanation. All other claims of
ineffective assistance are more appropriately resolved in a habeas corpus proceeding.
[Citations.]” (People v. Mai (2013) 57 Cal.4th 986, 1009.) Our record is silent as to why
defense counsel did not challenge the admissibility of Solorzano’s statements on
involuntariness grounds. Thus, to determine whether there was a satisfactory explanation
for counsel’s omission, we assess whether such a challenge would have been futile.
Doing so, we conclude seeking suppression of Solorzano’s statements as involuntary
would have been futile, and therefore, trial counsel did not render ineffective assistance.
(People v. Solomon (2010) 49 Cal.4th 792, 843, fn. 24 [“The Sixth Amendment does not
require counsel to raise futile motions”].)
A. Applicable Law on Involuntary Confessions
“The basic law is settled. A criminal conviction may not be founded upon
an involuntary confession. [Citation.] ‘The prosecution has the burden of establishing by
a preponderance of the evidence that a defendant’s confession was voluntarily made.
[Citations.]’” (People v. Williams (2010) 49 Cal.4th 405, 436.) “The test for the
voluntariness of a custodial statement is whether the statement is ‘“the product of an
essentially free and unconstrained choice”’ or whether the defendant’s ‘“will has been
overborne and his capacity for self-determination critically impaired”’ by coercion.
[Citation.] No single factor is dispositive; ‘rather courts consider the totality of [the]
21
circumstances.’ [Citations.] Relevant considerations include ‘“the crucial element of
police coercion [citation]; the length of the interrogation [citation]; its location [citation];
its continuity” as well as “the defendant’s maturity [citation]; education [citation];
physical condition [citation]; and mental health.”’ [Citations.]” (People v. Cunningham
(2015) 61 Cal.4th 609, 642-643 (Cunningham).)
Our Supreme Court has explained “‘[o]nce a suspect has been properly
advised of his rights, he may be questioned freely so long as the questioner does not
threaten harm or falsely promise benefits. Questioning may include exchanges of
information, summaries of evidence, outline of theories of events, confrontation with
contradictory facts, even debate between police and suspect. . . . Yet in carrying out their
interrogations the police must avoid threats of punishment for the suspect’s failure to
admit or confess particular facts and must avoid false promises of leniency as a reward
for admission or confession. . . . [The police] are authorized to interview suspects who
have been advised of their rights, but they must conduct the interview without the undue
pressure that amounts to coercion and without the dishonesty and trickery that amounts to
false promise.’ [Citation.]” (People v. Holloway (2004) 33 Cal.4th 96, 115 (Holloway).)
“‘In assessing allegedly coercive police tactics, “[t]he courts have prohibited only those
psychological ploys which, under all the circumstances, are so coercive that they tend to
produce a statement that is both involuntary and unreliable.”’ [Citations.]”
(Cunningham, supra, 61 Cal.4th at p. 643.)
B. Analysis
Solorzano contends the totality of the circumstances demonstrates he “was
in a psychologically coercive situation that overbore his will and pressured him into
making involuntary admissions.” He asserts his involuntary statements would have been
suppressed if his counsel had objected to their admission. We disagree. Considering the
totality of the interrogation’s circumstances, we do not reach the conclusion Solorzano’s
statements were the involuntary product of police coercion.
22
The interview took place in a room in the booking area of the men’s central
jail. Although there were three law enforcement officers in the room with Solorzano,
only Corona questioned him. Corona’s partner, Detective Perez, did not ask Solorzano
any questions, and the other officer simply escorted Solorzano into the room, stood on the
opposite side of the room during the interrogation, and did not participate. There was no
physical display of force during the interview, and Solorzano was not threatened with
harm. The interview was not that long, lasting less than an hour. We have listened to the
recording of the interrogation, and Corona did not use an overly harsh tone in questioning
Solorzano. Thus, the setting was not overbearing, and the interrogation was not
unusually lengthy. (See People v. DePriest (2007) 42 Cal.4th 1, 35 [upholding trial
court’s voluntariness decision where “interview lasted only 45 minutes as opposed to
several hours” in jail interview room].)
Consideration of Solorzano’s traits does not aid his claim of involuntariness
either; although some support his claim, others undermine it. Solorzano was from a
foreign country, but this was his second time living in the United States. He previously
lived in the United States for a year before being deported. He had little, if any,
experience with our criminal justice system before the interrogation as he no prior
convictions, only a citation for Vehicle Code violations. As for his education, the record
indicates he completed the 11th grade. He was 28 years old at the time of the interview,
and there is no indication he was of low intelligence or easily susceptible to suggestion.
Solorzano contends his free will was overborne because Corona “falsely
and repeatedly told [him] that his saliva had been found on [G.G.’s] vaginal area.” Ruses
are a permissible tactic during an interrogation. “The mere fact that the police lie to a
suspect during questioning does not render the suspect’s statements involuntary.
[Citation.] ‘Police officers are . . . at liberty to utilize deceptive stratagems to trick a
guilty person into confessing. The cases from California and federal courts validating
23
such tactics are legion.’ [Citation.]” (People v. James (2021) 70 Cal.App.5th 1031, 1044
(James).)
Solorzano also complains Corona “repeatedly accused [him] of lying,
suggested [Solorzano] made a mistake, insisted [he] was guilty of inappropriately
touching his daughter, frequently cut-off [Solorzano’s] responses, and relentlessly
continued his accusations until he obtained the responses he wanted to hear.” These
tactics are also permissible. Suggestions the incident might have been a mistake or an
accident are not considered coercive. “[T]hey merely suggest[ ] possible explanations of
the events and offer[ ] defendant an opportunity to provide the details of the crime.”
(People v. Carrington (2009) 47 Cal.4th 145, 171.) Interrogators are also free to
challenge the defendant’s story and confront him with facts that appear to contradict his
version. (Holloway, supra, 33 Cal.4th at p. 115.)
Solorzano further asserts Corona made implicit promises of leniency when
Corona told him if he was honest, Corona would relay that information to the District
Attorney. “‘[M]ere advice or exhortation by the police that it would be better for the
accused to tell the truth when unaccompanied by either a threat or a promise does not
render a subsequent confession involuntary. . . . Thus, “[w]hen the benefit pointed out by
the police to a suspect is merely that which flows naturally from a truthful and honest
course of conduct,” the subsequent statement will not be considered involuntarily made.
[Citation.] On the other hand, “if . . . the defendant is given to understand that he might
reasonably expect benefits in the nature of more lenient treatment at the hands of the
police, prosecution or court in consideration of making a statement, even a truthful one,
such motivation is deemed to render the statement involuntary and inadmissible . . . .”’
[Citations.]” (Holloway, supra, 33 Cal.4th at p. 115.)
Merely urging Solorzano to tell the truth because it would look better for
him would have been permissible. But we find troubling Corona’s admission at trial he
was trying to imply he had “some way to talk to the” District Attorney to make it easier
24
on Solorzano if he confessed. Nevertheless, it does not appear this enticement overrode
Solorzano’s will to resist. (Cunningham, supra, 61 Cal.4th at p. 643 [“A confession is
involuntary only if the coercive police conduct at issue and the defendant’s statement are
causally related”].) Corona’s references to being able to tell the District Attorney
Solorzano was honest occurred in the first half of the interview. After these statements,
Solorzano continued to maintain his innocence for sometime. It was later in the
interrogation before Solorzano even admitted touching and kissing G.G. when cleaning
and checking her for a urinary tract infection and accidentally touching her while playing.
It appears Solorzano was motivated by a desire to provide a mitigating explanation and
not by an implied promise of leniency by Corona. Considering the totality of the
circumstances in the record, we conclude Solorzano’s confession was voluntary and not
the product of coercion.
Therefore, we conclude trial counsel’s performance was not deficient for
failing to file a futile motion to suppress Solorzano’s statements on involuntariness
grounds. (James, supra, 70 Cal.App.5th at p. 1046.) Even assuming counsel’s
performance was deficient, we are not persuaded Solorzano would have enjoyed a more
favorable outcome if his statements had been suppressed. (Osband, supra, 13 Cal.4th at
p. 700.) The video of G.G.’s CAST interview and the forensic testimony presented at
trial provided overwhelming evidence of Solorzano’s guilt. Accordingly, Solorzano’s
claim of ineffective assistance of counsel also fails.
III. Prosecutorial Error
Solorzano contends his convictions in counts 3 and 5 must be reversed due
to prosecutorial error in closing argument. He asserts the prosecutor misstated the law
“when she told the jury there was no mental state or intent required for the offenses
25
charged in counts 3[ ] and 5.”4 In response, the Attorney General asserts Solorzano
forfeited his claim by failing to request an admonition below, and if not forfeited,
Solorzano’s claim should be rejected because the prosecutor properly argued the law.
We conclude Solorzano preserved his claim by objecting below, but there was no
prejudicial prosecutorial error.
A. Trial Court Proceedings
Prior to closing arguments, the court instructed the jury on the charged
offenses. As to the charge of sexual intercourse with a child 10 years of age or younger
in count 3 (§ 288.7, subd. (a)), the court instructed the jury with CALCRIM No. 1127. 5
For the charge of oral copulation with a child 10 years of age or younger in count 5
(§ 288.7, subd. (b)), the court instructed the jury with CALCRIM No. 1128. 6 The jury
was also instructed with CALCRIM No. 252, which explained both crimes required
4 The jury found Solorzano not guilty of the offense charged in count 4.
Therefore, we do not address his contention of prosecutorial error concerning this count.
5 As given to the jury, CALCRIM No. 1127 stated: “The defendant is
charged in Count[ ] 3 . . . with engaging in sexual intercourse with a child 10 years of age
or younger in violation of . . . section 288.7(a). [¶] To prove that the defendant is guilty
of this crime, the People must prove that: [¶] 1. The defendant engaged in an act of
sexual intercourse with [G.G.]; [¶] 2. When the defendant did so, [G.G.] was 10 years of
age or younger; [¶] 3. At the time of the act, the defendant was at least 18 years old. [¶]
Under the law, a person becomes one year older as soon as the first minute of his or her
birthday has begun. [¶] Sexual intercourse means any penetration, no matter how slight,
of the vagina or genitalia by the penis. Ejaculation is not required. [¶] Sexual
penetration of the genital opening refers to penetration of the labia majora, not vagina.”
6 As given, CALCRIM No. 1128 read as follows: “The defendant is charged
in Count 5 with engaging in oral copulation with a child 10 years of age or younger in
violation of . . . section 288.7(b). [¶] To prove that the defendant is guilty of this crime,
the People must prove that: [¶] 1. The defendant engaged in an act of oral copulation
with [G.G.]; [¶] 2. When the defendant did so, [G.G.] was 10 years of age or younger;
[¶] 3. At the time of the act, the defendant was at least 18 years old. [¶] Oral copulation
is any contact, no matter how slight, between the mouth of one person and the sexual
organ or anus of another person. Penetration is not required.”
26
“proof of the union, or joint operation, of act and wrongful intent.” CALCRIM No. 252
informed the jurors the offenses in counts 3 and 5 were general intent crimes and to
convict Solorzano of these charges, they had to find he not only committed the prohibited
acts but did “so with wrongful intent.” CALCRIM No. 252 explained to the jury: “A
person acts with wrongful intent when he or she intentionally does a prohibited act;
however, it is not required that he or she intend to break the law. The act required is
explained in the instruction for that crime or allegation.”
In her closing argument, the prosecutor addressed the counts in the order
charged, first discussing the elements of the lewd act charges in counts 1 and 2. 7
Addressing the intent element, the prosecutor explained the lewd act offenses required
proof “[t]he defendant committed the act with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of himself or the child.” Arguing the
elements of the lewd act charges had been satisfied, the prosecutor stated: “Now, again,
any touching. Doesn’t have to be lewd. And willfully is not the same thing as
intentionally. It just means he wasn’t asleep. He wasn’t drunk. He wasn’t falling into
her vagina in some fashion. [¶] Actually arousing is not required. And I point this out
simply because you could find maybe he didn’t ejaculate or he didn’t have an erection.
But if he’s touching her with sexual intent despite that, it’s still a lewd act.” Before
moving on to the other charges, the prosecutor reiterated the lewd act offenses required
evidence of “sexually intended” touching while G.G. was under the age of 14 years.
The prosecutor segued into a discussion of the elements of the sexual
intercourse charges in counts 3 and 4 and argued: “All this charge requires is that you be
convinced beyond a reasonable doubt that the defendant engaged in sexual intercourse
7 Solorzano does not contend the prosecutor erred in discussing the elements
of the lewd act offenses. Nevertheless, we quote this portion of the prosecutor’s
argument to provide context for the prosecutor’s argument that immediately followed, in
which Solorzano contends the prosecutor committed error.
27
with [G.G.]. [¶] Now, sexual intercourse -- we all think we know what that means,
right? But the law has a very specific definition that I need to point out to you. And
that’s ‘any penetration, however slight, of the genital opening by the other person.’ [¶]
. . . [¶] And if you believe beyond a reasonable doubt that the defendant’s penis passed
that outer point of [G.G.]’s vagina and had sexual intercourse with her, you can convict
him of this charge. Because the only other requirements are that she was under 10, which
we all know, and that he was over 18. There’s no sexual intent. There is no ‘Read his
mind.’ Did his penis pass that point is the question for you on these two charges, and did
it happen more than one time.” Addressing the oral copulation charge in count 5, the
prosecutor asserted, “For oral copulation, same exact concept. The act of oral copulation.
She’s under 10; he’s over 18. And oral copulation is any contact, no matter how slight,
with a sexual organ or mouth of one person and the sexual organ or anus of the other. No
penetration for this one required. No intent. No mental state required.”
The defense objected the prosecutor misstated the law, but the court
overruled the objection. Returning to her argument, the prosecutor stated, “This is not
specific intent. He intended to get aroused by touching her vagina. This isn’t a lewd act.
This is any contact with his mouth and her vagina while she’s under 10 and he’s over
18.”
B. Forfeiture
The Attorney General contends Solorzano forfeited his prosecutorial error
claim by failing to request an admonition after lodging his objection. “Generally, a claim
of prosecutorial misconduct is preserved for appeal only if the defendant objects in the
trial court and requests an admonition, or if an admonition would not have cured the
prejudice caused by the prosecutor’s misconduct. [Citations.]” (People v. Ledesma
(2006) 39 Cal.4th 641, 726.) Solorzano contends his claim should not be deemed
forfeited because he objected to the prosecutor’s argument and the trial court immediately
28
overruled his objection, therefore requesting a curative admonition would have been
futile. We agree with Solorzano.
“Forfeiture for failure to request an admonition will . . . not apply where the
trial court immediately overruled the objection to the alleged misconduct, leaving
defendant without an opportunity to request an admonition.” (People v. Panah (2005)
35 Cal.4th 395, 462.) Here, Solorzano objected the prosecutor was misstating the law,
and the trial court immediately overruled the defense objection, signaling it found the
prosecutor’s argument appropriate. Thus, Solorzano did not forfeit his prosecutorial error
claim by failing to request an admonition under these circumstances.8
C. Applicable Law
“‘“A prosecutor’s misconduct violates the Fourteenth Amendment to the
United States Constitution when it ‘infects the trial with such unfairness as to make the
conviction a denial of due process.’ [Citations.] In other words, the misconduct must be
‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’
[Citation.] A prosecutor’s misconduct that does not render a trial fundamentally unfair
nevertheless violates California law if it involves ‘the use of deceptive or reprehensible
methods to attempt to persuade either the court or the jury.’”’ [Citation.]” (People v.
Covarrubias (2016) 1 Cal.5th 838, 894.)
“[I]t is improper for the prosecutor to misstate the law generally [citation],
and particularly to attempt to absolve the prosecution from its prima facie obligation to
overcome reasonable doubt on all elements [citation].” (People v. Marshall (1996)
13 Cal.4th 799, 831.) A defendant asserting a prosecutor erred by misstating the law
“‘must . . . establish a reasonable likelihood the jury construed the remarks in an
objectionable fashion.’ [Citations.]” (People v. Fayed (2020) 9 Cal.5th 147, 204.)
8 Because we address Solorzano’s claim on its merits and conclude there was
no prosecutorial error, we do not separately address his alternative claim his counsel’s
failure to request an admonition constituted ineffective assistance.
29
Reviewing a claim of prosecutorial error in closing argument, “we do not view the
prosecutor’s remarks in isolation but rather ‘in the context of the argument as a whole.’
[Citation.]” (People v. Adanandus (2007) 157 Cal.App.4th 496, 513.) “‘In conducting
this inquiry, we “do not lightly infer” that the jury drew the most damaging rather than
the least damaging meaning from the prosecutor’s statements.’ [Citation.]” (People v.
Dykes (2009) 46 Cal.4th 731, 772.)
D. Analysis
Solorzano contends the prosecutor erred “by misstating the law when she
informed the jury that the offenses charged in counts 3[ ] and 5 do not require any mental
state or intent, and all that is required is proof of the elements (as set forth in CALCRIM
No[s]. 1127 and 1128).” Solorzano asserts this portion of the prosecutor’s argument
lowered the prosecution’s burden of proof and the jury may have convicted him of the
offenses without finding he acted with wrongful intent. We are not persuaded.
Considering the prosecutor’s whole argument, it is not reasonably likely the
jury construed the prosecutor’s remarks as absolving the prosecution of proving
Solorzano acted with wrongful intent for the charges in counts 3 and 5. When the
prosecutor made the challenged statements of “no sexual intent,” “no intent,” and “no
mental state required,” the prosecutor was contrasting the mens rea element of the sexual
intercourse and oral copulation charges in counts 3 and 5 with that in the lewd act
offenses in counts 1 and 2. Granted the prosecutor’s statements of “no intent” and “no
mental state required” were inartful, but after the defense objected, the prosecutor
clarified she meant the charges in counts 3 and 5 were not lewd act offenses and there
was no specific intent requirement.
Near the end of her closing argument, the prosecutor implored the jury to
look at the instructions and the required elements for the charges. The jury was properly
instructed on the elements of the charges and on the required proof of union of act and
wrongful intent (CALCRIM No. 252). Solorzano does not contend otherwise. We
30
presume the jury followed the court’s instructions and treated “the prosecutor’s
comments as words spoken by an advocate in an attempt to persuade.’ [Citation.]”
(Osband, supra, 13 Cal.4th at p. 717.) “Indeed, the jury was instructed that, to the extent
the law as given by the trial court conflicted with the description of the law as given by
the attorneys, the jury was to follow the court’s instructions.” (People v. Boyette (2002)
29 Cal.4th 381, 436.) Accordingly, Solorzano’s contention of prosecutorial error fails.
IV. The Sentencing Minute Order and Abstract of Judgment Must be Corrected
Solorzano identifies a clerical error contained in both the court’s sentencing
minute order and abstract of judgment and requests these documents be corrected to
accurately reflect the trial court’s oral pronouncement of judgment. The Attorney
General agrees the clerical errors should be corrected, as do we.
At sentencing, the trial court imposed a six-year term on count 1 but stayed
the sentence under section 654. Rightly, the court did not indicate the stayed sentence
was to be served concurrent to the non-stayed terms. (People v. Jones (2012) 54 Cal.4th
350, 353 [“the imposition of concurrent sentences is precluded by section 654”].)
However, both the sentencing minute order and abstract of judgment state the court
imposed a concurrent sentence on count 1 that was stayed under section 654. “Where
there is a discrepancy between the oral pronouncement of judgment and the minute order
or the abstract of judgment, the oral pronouncement controls. [Citations.]” (People v.
Zackery (2007) 147 Cal.App.4th 380, 385.) Pursuant to our power to correct clerical
errors in the record (Jones, supra, 54 Cal.4th at p. 89), we order the sentencing minute
order and abstract of judgment be amended to conform to the court’s oral pronouncement
of judgment by omitting the notation to a concurrent sentence on count 1.
DISPOSITION
The clerk of the superior court is directed to prepare an amended abstract of
judgment and sentencing minute order omitting the reference to a concurrent sentence
imposed on count 1. Upon doing so, the superior court is directed to forward certified
31
copies of the amended documents to the Department of Corrections and Rehabilitation,
Division of Adult Operations. In all other respects, the judgment is affirmed.
O’LEARY, P. J.
WE CONCUR:
MOORE, J.
MARKS, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
32