People v. Martinez CA5 ( 2023 )

Filed 2/6/23 P. v. Martinez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082991
Plaintiff and Respondent,
(Super. Ct. No. VCF347222)
v.
YOVANI D EJESUS MARTINEZ, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Melinda
Reed, Judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Jeffrey
D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
A jury convicted appellant Yovani DeJesus Martinez of 10 felonies involving sex-
related crimes committed with his daughter, who was eight years old when she first
reported the abuse. Appellant was convicted of two counts of sexual penetration of a
child under the age of 10 years (Pen. Code, § 288.7, subd. (b);1 counts 1 & 2); six counts
of committing a lewd act upon a child (§ 288, subd. (a); counts 3-8); one count of
possession of child pornography (§ 311.11, subd. (a); count 9); and one count of using a
minor to create pornography (§ 311.4, subd. (c); count 10). He received an aggregate
indeterminate prison term of 30 years to life, along with a consecutive determinate
sentence of 20 years.
In general, appellant alleges that certain evidentiary and sentencing errors
occurred at trial, and his counsel rendered ineffective assistance. We reject most of his
claims. However, we agree with the parties that the subordinate determinate sentence
imposed in count 10 must be reduced from two years to eight months. We further agree
that certain fees and fines must be vacated. We will direct the trial court to prepare an
amended determinate abstract of judgment that reflects these modifications. As
modified, we affirm the judgment.
BACKGROUND
At trial, appellant’s daughter, the Victim, testified that appellant had touched her
vagina with his penis and/or hand on multiple occasions when she stayed with him at his
residence. In contrast, appellant denied ever touching her inappropriately, and he offered
legitimate reasons why he had possibly touched her vagina, such as applying medication.
Based on the verdicts rendered, it is apparent that the jury rejected appellant’s version of
events and found the Victim credible. We summarize the material facts that support the
judgment.
1 All future statutory references are to the Penal Code unless otherwise noted.
2.
I. Appellant and his Ex-Wife Separate.
Appellant and his ex-wife, M.L., are the Victim’s parents. The Victim was born in
December 2008. In 2014, M.L. filed for divorce from appellant. She was the one who
ended the relationship. Thereafter, they had joint custody of the Victim, and they took
turns with physical custody.
M.L. began a relationship with a new man, the Boyfriend, and she eventually had
two children with the Boyfriend. After this new relationship started, appellant would
frequently insult M.L. or her Boyfriend. However, appellant also made it clear that he
wanted to resume a romantic relationship with M.L.
II. Appellant Accuses his Ex-Wife’s Boyfriend of Molesting the Victim.
In August 2016, M.L. obtained a three-year restraining order against appellant
after he began stalking and harassing her. Under the terms of the order, appellant could
not have contact with M.L. unless it pertained to the Victim. To comply with both the
restraining order and their child custody agreement, appellant and M.L. utilized the
residence of M.L.’s mother as the location for an exchange of physical custody.
In 2016, about a week after appellant was served with notice of the pending
restraining order, appellant accused the Boyfriend of molesting the Victim. M.L.
suspected that appellant had fabricated these allegations to disrupt her relationship with
the Boyfriend. Appellant attempted to obtain a restraining order against the Boyfriend,
but a judge denied that request.
In early 2017, appellant renewed his accusations with law enforcement, claiming
he had evidence that either the Boyfriend or the Boyfriend’s 18-year-old nephew were
molesting the Victim. Law enforcement launched an investigation, testing (in part) a pair
of the Victim’s panties, and interviewing everyone allegedly involved. M.L. was
cooperative. The Boyfriend and his nephew were cooperative. The Victim underwent a
3.
“CART” interview.2 This investigation was ultimately closed due to a lack of evidence.
No probable cause existed to arrest either the Boyfriend or his nephew.
III. The Victim Discloses Appellant’s Abuse.
On February 3, 2017, the Victim was eight years old and she disclosed to M.L.
that it was appellant who had been touching her inappropriately. This disclosure
occurred just prior to a physical custody exchange. While waiting for appellant to arrive
at the location, the Victim began crying and she told M.L. that she did not want to go
with appellant. According to M.L., it appeared that the Victim was having a panic attack.
The Victim said it was appellant who had done everything to her that she had previously
alleged against the Boyfriend. M.L. asked the Victim if she was lying. The Victim
insisted she was telling the truth, and she asked M.L. to call the police so she would not
have to go with her father.
M.L. contacted authorities, and a law enforcement officer responded to the scene a
short time later. The Victim’s eyes were red as if she had been crying. The Victim
reported to the officer that appellant had touched her “private parts” when they were in
bed. This disclosure to the officer happened outside M.L.’s presence.
In February 2017, the Victim underwent a second CART interview. She reported
that, the previous week, she had told her mother that it was appellant who did “bad
things” to her. The Victim stated that appellant “gets on top of” her. She felt his
“tummy” on top of her “tummy.” This had occurred four or five times when the Victim
was asleep with appellant in the same bed. When asked by the interviewer how the
Victim knew it was not a dream, the Victim stated that, when she woke up, she would not
be wearing any underwear and her stomach would hurt.
2 A CART interview involves a specially trained interviewer who elicits information
from a minor about alleged sexual crimes.
4.
The Victim told the interviewer that she did not want to go with appellant because
she did not want him “to do that” anymore. The Victim admitted during the second
CART interview that she had previously falsely accused the Boyfriend of molesting her.
She said she made those allegations because appellant had instructed her to do so.
According to the Victim, appellant had wanted the Boyfriend to go to jail so he could
renew a romantic relationship with the Victim’s mother, M.L. During the second CART
interview, the Victim said that the Boyfriend had never done “bad things” to her.
IV. Law Enforcement Discovers Incriminating Evidence on Appellant’s Phone.
In February 2017, appellant met with law enforcement officials. He voluntarily
turned over both his and the Victim’s cellular telephones. Law enforcement eventually
extracted relevant information from both phones.
On February 4, 2017, appellant had sent a text message to the Victim which read,
“Daddy’s princess made lies, and that’s why daddy is very sad to the princess to tell lies
when daddy told her not to say.” This text message had been sent the day after the
Victim had first disclosed to her mother and law enforcement that appellant was touching
her inappropriately. On the day that the Victim first disclosed this abuse, a police officer
had spoken with appellant on the telephone and explained why the child custody
exchange was not going to occur.
On appellant’s phone, law enforcement discovered nude photographs of the
Victim. A picture taken on or about April 23, 2016, showed her buttocks. Several
pictures taken on or about September 30, 2016, showed the Victim fully nude. In another
photo, the Victim is naked and lying on the bed with her eyes and legs closed, but her
vagina is visible. In another photo, the Victim is posed nude in a “seductive manner.”
One of her legs is laid out to the side, and both of her hands are above her head.
In three photos taken on or about September 30, 2016, the Victim’s vagina is
depicted in “close-up” shots. In two of the photos, appellant is seen “opening” her
5.
vagina. In one photo, appellant uses his finger to manipulate her vagina, and in the other
photo, he uses his thumb to do so. The third photo is of the Victim’s vagina with her legs
spread.
The pictures of the Victim’s vagina were kept in a clandestine app on appellant’s
cell phone that looked like a calculator. That app also contained photos of naked adult
women and photos of appellant’s own erect penis. One photo of his penis showed
appellant with lubricant on his fingers.
A review of his phone demonstrated that appellant had visited various
pornographic websites, and he had viewed certain pornographic videos. These included
two videos that were titled: (1) “Father Abused a Sleeping Girl” and (2) “Teen Girl
Forced By Father Sucking His Cock, Cam77.com.” These were deleted from the phone’s
history. Law enforcement did not access these videos, and they did not know whether
they involved child or adult actors. Appellant also had web searches for strippers and for
escort services.
Appellant’s phone also contained videos of the Victim. In one video, he is seen
touching and grabbing the Victim’s buttocks, while pulling down her underwear a little.
He refers to her “sexy body.” He says, “I don’t know what I am going to do with this old
lady … that has me very crazy.” In another video, appellant and the Victim are lying on
a bed. Appellant is making snoring sounds and moaning. In Spanish, he says, “Mmm,
there baby, ooh yes my love, mmm, mmm.” The Victim is topless. In a final video, the
Victim refers to appellant’s “butt cheeks” and her own “butt.” She also references “your
junior” when speaking with appellant.3
The jury learned that the Victim referred to appellant’s penis as “Junior.” M.L.
testified that, when she was in a relationship with appellant, she and appellant referred to
3 The jury also saw a very short clip of appellant kissing the Victim on her mouth.
The Victim testified that appellant only kissed her when saying goodbye or dropping her
off at school.
6.
his penis as “Junior.” Appellant acknowledged that M.L. used the term “Junior” to refer
to his penis.
V. The Victim’s Trial Testimony.
The Victim was 12 years old at the time of trial. She testified that, until she was
eight years old, she would stay with appellant on the weekends. She shared a bedroom
with appellant, and that room had two beds. She explained that, when she would go to
sleep in her own bed, appellant would talk about ghosts or some other scary subject. She
would then crawl into bed with him because she was frightened. The Victim told the jury
that on multiple occasions, and occurring at least 10 times, if not more, she would be in
his bed and he would climb on top of her naked and place his penis or hand against her
vagina. She always fell asleep in either sweatpants and a tank top, or a nightgown. She
always wore underwear. When she woke, she would find her clothes to be inside out
and/or on backwards.
The Victim told the jury that appellant wanted to bathe with her when she stayed
with him. On more than one occasion, but less than five occasions, appellant instructed
her to jump on top of him when they were together in the bathtub, and he had her place
her vagina against his penis. He would grab her hips when she did this. He told her that
this was a game. The Victim would feel a sharp pain or burning sensation in her vagina.
The first of these incidents in the bathtub occurred when the Victim was six or seven
years old. The last incident occurred just before she stopped having contact with him.
The Victim admitted to the jury that she had previously falsely accused the
Boyfriend of molesting her, and she confirmed that the Boyfriend had never touched her
inappropriately.4 She explained that she had falsely accused the Boyfriend because she
had felt scared and pressured to do so from appellant. The Victim knew that appellant
4 The Victim also testified that the Boyfriend’s nephew never touched her
inappropriately.
7.
did not like the Boyfriend, and appellant had told her that he had found something on her
underwear. He had repeatedly asked her if the Boyfriend had been abusing her.
Appellant had warned her that he could have her mother, M.L., jailed if she (the Victim)
did not explain what had happened. Appellant then covered her face and he tried to take
off her pants. It was at that moment that she relented and told appellant that it was the
Boyfriend who was abusing her.
The Victim denied recalling ever having a rash on her vagina or remembering
appellant ever putting medication on her vagina. She told the jury that, because she had
been scared, she never told anyone it was appellant who was sexually abusing her. She
eventually told her mother, M.L. while they were in their vehicle outside the residence of
the Victim’s grandmother’s residence shortly before appellant was scheduled to pick her
up. She testified that she disclosed what was happening because she was scared it would
occur again. She stated that she still loved her father, but she “deserved” her own
“justice” and she believed he deserved “to go to jail.”
VI. The Defense Evidence.
A. Appellant’s testimony.
Appellant testified at trial, denying any wrongdoing. He said he had never
touched the Victim’s vagina for a sexual purpose, and when he touched her, such as her
buttocks as seen in one video, it was “just a game.” He claimed that he had touched the
Victim around her vagina only to apply a cream-based medication. He said he did this
over 10 times, including when the Victim was asleep.
Appellant denied telling the Victim to accuse the Boyfriend, and he denied
pressuring her in this regard. He denied ever threatening to have M.L. jailed. He told the
jury that he did not know why the Victim would say that he had told her to accuse the
Boyfriend.
8.
Appellant admitted taking pictures of the Victim’s vagina, including those with his
finger or thumb in the pictures. He claimed that he did so because Child Protective
Services had advised him that it would help him gain physical custody of her. He
claimed he took the pictures because the Victim “had a rash” and he was “applying
cream.”5 He stated that he photographed his finger near the Victim’s vagina to point out
a rash. He also claimed that he took pictures of the Victim’s vagina with her legs spread
open because he saw a discharge of “transparent liquid.” He claimed that he showed two
such photos to his mother. He believed the discharge was the result of sexual abuse by
the Boyfriend. He testified that, after showing the pictures of the Victim’s vagina, he
deleted them from his phone without showing them to police.
Regarding other naked photos of the Victim, appellant claimed he took those to
make her feel more comfortable before he applied the medication to her vagina, and/or
because she wanted him to photograph her naked. He testified that it was the Victim’s
decision to pose naked on the bed in a seductive manner. He explained that she “really
just likes to take pictures.” He claimed that he took the April 23, 2016, picture of the
Victim’s buttocks because she had complained that M.L. or the Boyfriend had hit her.
Appellant admitted that he kept photos of the Victim’s vagina in a clandestine app
on his phone, which looked like an app for a calculator. Inside this app he also kept
photos of naked adult women and of his penis. He claimed that, for privacy purposes, he
put the photos of the Victim’s vagina in that app so that the Victim or anyone else who
5 At trial, M.L. explained that, when the Victim was about five or six years old, she
did have a rash on or around her vagina, and M.L. had applied a cream a few times.
However, M.L. testified that, after that time, the Victim never again had issues with her
vagina. In contrast, Appellant claimed at trial that it was around September 2016 when
the Victim was prescribed a cream. He admitted that his testimony in this regard was in
conflict with both M.L. and the Victim.
9.
used his phone would not have access to them. 6 He explained that, regarding the pictures
of his own penis, he had had surgery to reconstruct his “urinary vein” and he had taken
the photos to show his physician because urine was leaking from his penis. He claimed
his penis was not “erect” but it had a “device” there.
Appellant admitted that he watches adult pornography, and he did so at times with
a prostitute in a motel. He denied seeking out a video titled “Father Abused a Sleeping
Girl.” He said that the link to that video just happened to be on a website he was visiting.
He explained that he was indiscriminate when it came to viewing pornography, and he
watched whatever was on the screen. He denied having any sexual fantasies of abusing
his daughter while she was sleeping. He admitted watching a video in January 2017
titled “Fucking My Girlfriend’s Sister While She Sleeps.” He denied that this type of
pornography aroused him.
Appellant admitted taking showers with the Victim until she was about seven and
a half years old. He agreed that he stopped washing her vagina about two months before
she turned eight. He testified that he and M.L. had showered together with the Victim
when they were still married, and he continued showering with the Victim after their
divorce. He explained that people from Mexico would not find this behavior unusual. 7
He claimed that the Victim had asked him to shower with her, and he was only with her
during baths to wash her hair.
6 Appellant also had at least one picture of his ex-wife, M.L., in that clandestine
app.
7 At trial, M.L. agreed she had previously told an officer that she did not find it odd
that appellant showered with the Victim because they had both showered with her ever
since she was an infant. M.L. also testified that the Victim does not like to sleep alone
and she used to sleep with M.L. and appellant in the same bed.
10.
B. The testimony from appellant’s various family members.
Some of appellant’s family members testified on his behalf. In general, they told
the jury that they had never witnessed appellant acting inappropriately with the Victim.
They also had not seen any concerns regarding that relationship.
Appellant’s mother denied ever seeing a rash on the Victim when she had cared
for her, but she remembered that M.L. had sent a cream that had to be applied.
Appellant’s mother, however, had trouble remembering the precise time period when the
Victim may have had a rash. She agreed that, in February 2017, she had told
investigators that it had been over a year since she had seen anything regarding the
Victim’s vagina, and it had been two years since she had put cream on the Victim’s
vagina.
Appellant’s mother initially testified that she had seen the nude photographs that
appellant had taken of the Victim, and the mother understood that they were evidence
that the Victim had been touched inappropriately. The mother also heard the Victim say
that the Boyfriend had been molesting her. However, on cross-examination, appellant’s
mother agreed that appellant did not actually show her the photographs of the Victim’s
vagina. Instead, he only told her about them.
DISCUSSION
We address appellant’s claims in the order that they appear in his opening brief.
I. Appellant has Forfeited his Claim that the Trial Court Erred in Permitting
Admission of the Second CART Interview and any presumed Error is
Harmless.
Evidence Code section 1360 provides an exception to the hearsay rule in criminal
proceedings for certain statements made by child abuse victims under the age of 12. 8
8 The United States Supreme Court holds that, “[t]o be admissible under the
Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia
of reliability by virtue of its inherent trustworthiness, not by reference to other evidence
at trial. [Citation.]” (Idaho v. Wright (1990) 497 U.S. 805, 822.)
11.
Among other requirements not relevant here, the trial court must find “in a hearing
conducted outside the presence of the jury, that the time, content, and circumstances of
the statement provide sufficient indicia of reliability.” (Evid. Code, § 1360, subd. (a)(2).)
Appellant argues that the trial court erred in admitting into evid ence the Victim’s
statements made during her second CART interview in which she accused him of
touching her inappropriately. He notes that the court never conducted the required
hearing to determine the reliability of her statements, and he contends that the Victim’s
hearsay statements were unreliable. He maintains that his due process rights were
violated. He asserts that he suffered prejudice, and reversal of all of his convictions is
required.
A. Background.
Prior to trial, the prosecution filed written motions in limine, which included a
request that it be permitted to admit into evidence the recording of the Victim’s CART
interview in which she disclosed the abuse she was suffering from appellant. The
prosecution’s motion was based on Evidence Code section 1360. The prosecution asked
the court to conduct a hearing to determine whether these statements were reliable.
When the matter was addressed pretrial, defense counsel pointed out to the court
that the Evidence Code required the court to conduct a hearing to determine the reliability
and trustworthiness of the Victim’s statements during her CART interview. The court
agreed it would conduct such a hearing. However, no such hearing occurred prior to
trial.9
During trial, a recording of the Victim’s second CART interview (People’s exhibit
No. 1) was played for the jury. Just before this was played, the court noted that the
9 The parties agree that no such hearing occurred prior to trial. Our independent
review of the record has also not discovered any such hearing.
12.
defense did not object to its admissibility, and the court stated it had “specifically found
in the prosecution’s favor” regarding its admissibility.
Towards the end of trial, the court later stated for the record that it had previously
indicated that it “would listen carefully to the preliminary and foundational testimony”
regarding this CART interview “as it was being presented by the witnesses while the jury
was present.” The court stated it was “satisfied” that the foundational requirements had
been met under Evidence Code section 1360 and that the CART interview “was
appropriately played.”
B. Standard of review.
The parties dispute the appropriate standard of review. Appellant contends that
this court should conduct an independent review regarding whether or not the Victim’s
statements were reliable during the CART interview. In contrast, respondent asserts that
we should assess whether the trial court’s ruling was an abuse of discretion.
Published opinions have taken conflicting approaches regarding the appropriate
standard of review in this situation. Some courts consider this an evidentiary issue,
triggering a mere abuse of discretion standard. (See People v. Roberto V. (2001) 93
Cal.App.4th 1350, 1367; People v. Brodit (1998) 61 Cal.App.4th 1312, 1330.) On the
other hand, other courts have employed an independent standard of review to consider
whether the child victim’s hearsay statements were reliable. (People v. Tatum (2003) 108
Cal.App.4th 288, 296; People v. Eccleston (2001) 89 Cal.App.4th 436, 445–446.)
As we demonstrate below, we need not resolve the parties’ dispute or fully
respond to their various arguments regarding the appropriate standard of review. Instead,
this claim fails under either approach because this issue is forfeited and any presumed
error is harmless.
13.
C. Analysis.
1. This claim is forfeited.
The parties dispute whether or not this claim is forfeited. Respondent argues that
appellant did not object to this evidence when it was introduced at trial. In contrast,
appellant contends he has preserved this issue for appellate review because his trial
counsel reminded the court before trial that it was required to determine outside the jury’s
presence whether or not the Victim’s statements during her CART interview were
reliable. In the alternative, appellant raises a claim of ineffective assistance of counsel.
Respondent has the better argument. A criminal judgment cannot be set aside by
the erroneous admission of evidence unless a timely objection was made setting forth a
“clear” and “specific ground” for the objection. (Evid. Code, § 353, subd. (a).) A
reviewing court must also determine that the admitted evidence should have been
excluded on the ground stated and the error “resulted in a miscarriage of justice.” (Id. at
subd. (b).) Our Supreme Court holds that an objection must “inform the trial court, as
well as the party offering the evidence, of the specific reason or reasons the objecting
party believes the evidence should be excluded, so the party offering the evidence can
respond appropriately and the court can make a fully informed ruling.” (People v.
Partida (2005) 37 Cal.4th 428, 435; accord, People v. Seijas (2005) 36 Cal.4th 291, 302.)
Here, the defense did not object when the second CART video was played for the
jury. Indeed, the court noted that the defense was making no objection, a point which the
defense never disputed or corrected. Consequently, this issue is deemed forfeited.
Appellant failed to make a timely and specific objection on the ground now asserted on
appeal. Thus, this issue was not preserved for appellate review. In any event, we also
determine that this claim fails due to a lack of prejudice. 10
10 Because this claim fails for lack of prejudice, we need not fully analyze
appellant’s assertion that his trial counsel was ineffective in not preserving this issue for
appeal. Appellant cannot meet his burden of showing that he was harmed. Thus, his
14.
2. Any presumed evidentiary error is harmless.
The California Supreme Court has identified the following factors as being
relevant in determining the reliability of hearsay statements made by a child witness in a
sexual abuse case: (1) spontaneity and consistent repetition; (2) the declarant’s mental
state; (3) use of terminology unexpected of a child of a similar age; (4) lack of motive to
fabricate; and (5) the child’s ability to understand the duty to tell the truth, and to
distinguish between truth and falsity. (In re Cindy L. (1997) 17 Cal.4th 15, 29–30; see In
re Lucero L. (2000) 22 Cal.4th 1227, 1250.)
Appellant maintains that the Victim’s statements during her CART interview were
not sufficiently reliable. He acknowledges that no evidence suggests the Victim’s mental
state was impaired. However, he contends that the Victim’s allegations were not
consistently repeated. He also argues that the Victim had a motive to lie to falsely accuse
him. Finally, he asserts that her statements during the CART interview were not
sophisticated and did not suggest that her claims of sexual abuse had occurred. He relies
on People v. Eccleston, supra, 89 Cal.App.4th 436, and People v. Brodit, supra, 61
Cal.App.4th 1312, to establish error. He contends it is reasonably probable this evidence
impacted the outcome of his trial. We disagree.
We need not analyze whether or not the Victim’s statements during her CART
interview were reliable. We also need not summarize appellant’s cited authorities.
Instead, this record reveals that, even if forfeiture did not occur and the CART interview
was erroneously played at trial, any presumed evidentiary error was overwhelmingly
harmless.
The prosecution introduced evidence that conclusively established appellant’s
guilt. The Victim testified that appellant had touched her vagina with his penis and/or
hand on multiple occasions when she stayed with him at his residence. Her trial
claim of ineffective assistance of counsel must be rejected. (See Strickland v.
Washington (1984) 466 U.S. 668, 687–688; People v. Lucas (1995) 12 Cal.4th 415, 436.)
15.
testimony was credible and consistent with her pretrial statements. On the night the
Victim disclosed this abuse to her mother, she told an officer that appellant had touched
her “private parts” when they were in bed.
The Victim’s testimony was amply corroborated by the evidence located on
appellant’s phone. He had numerous naked photos of the Victim, and one showed her in
a “seductive manner.” He kept photos of her vagina hidden in a clandestine app that
looked like a calculator, and those photos were kept with pictures of naked adult women
and images of his own erect penis. In two of the pictures involving the Victim, appellant
used his finger in one picture and his thumb in another picture to open her vagina.
Despite claiming he had taken photos of her vagina as possible evidence to gain custody
of the Victim, appellant admitted that he never showed these pictures to law enforcement.
Appellant had a video wherein he touched and grabbed the Victim’s buttocks,
while pulling down her underwear a little. He referred to her “sexy body.” He says, “I
don’t know what I am going to do with this old lady … that has me very crazy.” In
addition, the jury learned that, the day after the Victim first disclosed the abuse to her
mother and then to law enforcement, appellant sent a text message to the Victim saying
he was “very sad” because his “princess” told lies and he had “told her not to say.”
The evidence located on appellant’s phone overwhelmingly corroborated the
Victim’s trial testimony and confirmed the ongoing abuse. In contrast, the Victim
disclosed very few details about the abuse during the second CART interview, only
reporting that appellant did “bad things” to her and he put his “tummy” on hers. She also
explained in this interview that she had previously accused the Boyfriend of molesting
her because appellant had instructed her to do so. Appellant had wanted the Boyfriend to
go to jail so he could renew a romantic relationship with M.L.
At trial, the Victim provided more details about why she had previously falsely
accused the Boyfriend. She explained that she had felt scared and pressured to do so.
The Victim knew that appellant did not like the Boyfriend, and appellant had told her that
16.
he had found something on her underwear. He had repeatedly asked her if the Boyfriend
had been abusing her. Appellant had warned her that he could have her mother jailed if
she did not explain what had happened. Appellant then covered her face and he tried to
take off her pants. It was at that moment that she relented and told appellant that it was
the Boyfriend who was abusing her.
With CALCRIM No. 226, the jurors were instructed to consider the Victim’s prior
false statement and to give it whatever weight they deemed necessary. Based on the
verdicts rendered, it is apparent that the jury found the Victim’s testimony credible.
During closing argument, the prosecutor did not rely on the CART interview to
demonstrate appellant’s guilt. Instead, it was only mentioned a few times to establish
when this abuse had ended, and to remind the jurors that the Victim had said during the
interview that she had felt appellant’s “tummy on her tummy,” and “she could feel his
feet.” The jurors were told that they could consider the CART interview and give it the
same weight and value as the Victim’s trial testimony. The prosecution, however, argued
that appellant’s guilt was shown through the Victim’s trial testimony, her demeanor, the
photos and videos found on appellant’s cell phone, and through appellant’s numerous
lies. The prosecutor asked the jury to consider the circumstances surrounding the
Victim’s initial disclosure to her mother. The prosecutor asserted that the Victim had no
motive to lie, and the photos and videos found on appellant’s phone showed that she was
telling the truth. The prosecutor reminded the jurors that, the day after the Victim
disclosed this abuse, appellant had sent her a text message saying he was sad because he
had told her “not to say.”
Appellant’s defense counsel argued to the jury that, during this CART interview,
the Victim had not talked about penetration or that appellant supposedly put his finger on
her vagina. She also did not mention showering with appellant, which was only
discussed in court. Defense counsel noted that appellant is a “pretty big man” and the
Victim “was very small at eight years old.” Counsel noted that the Victim never stated in
17.
her CART interview that she had felt suffocated or had difficulty breathing when
appellant was on her.
During the prosecution’s short rebuttal argument, the CART interview was never
again mentioned or discussed.
We reject appellant’s arguments that his right to due process was violated from the
introduction of the CART interview. Instead, appellant had a full and fair opportunity to
confront and cross-examine the Victim at trial. He was also not prevented from
presenting his defense to the jurors, claiming he had never touched her or photographed
her for a sexual purpose. It is apparent, however, that the jury found appellant’s
testimony lacking in any credibility.
Based on this record, any presumed error was harmless regarding the playing of
the CART interview at trial. We can declare beyond any reasonable doubt that this
evidence did not contribute to the jury’s verdict. (Chapman v. California (1967) 386
U.S. 18, 24 (Chapman).) In other words, the record reveals that this presumed error was
unimportant in relation to everything else the jury considered regarding appellant’s guilt.
(Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved on other grounds in Estelle v.
McGuire (1991) 502 U.S. 62, 72–73, fn. 4.) Likewise, it is not reasonably probable the
verdicts would have been more favorable to appellant absent this presumed error.
(People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) Consequently, appellant’s
arguments are without merit, and this claim fails.
II. The Trial Court did not Abuse its Discretion in Permitting the Jury to Learn
that Appellant had Viewed the two Pornographic Videos and any Presumed
Error is Harmless.
Appellant contends that the trial court abused its discretion in allowing the jury to
learn about the titles of two pornographic videos that he had viewed on his cell phone.
He argues that the admission of this evidence rendered his trial fundamentally unfair, and
he seeks reversal of all of his convictions.
18.
A. Background.
Prior to trial, the prosecution filed a written motion in limine seeking permission
to introduce into evidence the titles of three pornographic videos which appellant had
apparently viewed on his phone. The defense opposed this request, arguing that this
evidence was more prejudicial than probative.
The prosecution eventually narrowed its request to introduce only two of the titles
discovered on appellant’s phone: (1) “Father Abused a Sleeping Girl” and (2) “Teen Girl
Forced By Father Sucking His Cock.” The prosecutor acknowledged that the website
from where these videos were downloaded likely used adult actors, and it did not have
child pornography on its platform. Nevertheless, the prosecutor asserted that these titles
were probative of appellant’s possible interest in sexual relationships between fathers and
daughters. After hearing the arguments, the court ruled that these two titles would be
admissible at trial because they were relevant regarding appellant’s alleged sexual intent.
The jury learned that appellant had visited pornographic websites on his phone,
including the videos referenced above which had been deleted from the phone’s history.
Law enforcement did not access these videos, and they did not know whether they
involved child or adult pornography. Appellant also had web searches for strippers and
for escort services.
B. Standard of review.
An abuse of discretion standard is used to review a trial court’s rulings regarding
relevancy and admissibility under Evidence Code section 352. (People v. Jones (2017)
3 Cal.5th 583, 609.) Likewise, this standard is used to review a trial court’s ruling
admitting evidence under Evidence Code section 1101. (People v. Daveggio and
Michaud (2018) 4 Cal.5th 790, 824.)
Under this standard, we will not disturb the trial court’s decision on appeal unless
“the court exercised its discretion in an arbitrary, capricious or patently absurd manner
that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v.
19.
Rodrigues (1994) 8 Cal.4th 1060, 1124–1125; see People v. Williams (1998) 17 Cal.4th
148, 162 [abuse of discretion review asks whether ruling in question falls outside bounds
of reason under applicable law and relevant facts].)
C. Analysis.
Appellant contends that he only viewed adult pornography and these two disputed
videos did not depict actual minors. He argues that the issue for the jury was whether he
had held sexual intent for his own daughter, but these videos were “adult in nature” and,
thus, their probative value was greatly outweighed by the danger of undue prejudice. He
maintains that the introduction of these titles rendered his trial fundamentally unfair.
We reject appellant’s arguments. The trial court did not abuse its discretion and
any presumed evidentiary error was harmless.
1. The court did not abuse its discretion.
Evidence Code section 1101, subdivision (a), prohibits the introduction of
propensity evidence to prove a defendant’s conduct on a specific occasion. (People v.
Jackson (2016) 1 Cal.5th 269, 299.) However, character evidence can be admitted under
Evidence Code section 1101, subdivision (b), when offered for a non-propensity purpose,
such as motive or intent. (People v. Jackson, supra, 1 Cal.5th at p. 300.) For this
inquiry, the degree of similarity between the charged and uncharged conduct is often a
key factor, and a “continuum exists” concerning the degree of similarity required. (Ibid.)
The least degree of similarity is required to prove intent. (Ibid.) In contrast, a higher
degree of similarity is required to prove a common design or plan, and the highest degree
of similarity is required to prove identity.11 (People v. Jackson, supra, 1 Cal.5th at
p. 300.)
11 Evidence Code section 1108 permits admission of evidence regarding a
defendant’s uncharged sexual offenses when such evidence is relevant to show his or her
propensity to commit similar sex crimes, so long as the admission of this evidence does
not violate Evidence Code section 352. (People v. Reliford (2003) 29 Cal.4th 1007,
1012–1013; People v. Falsetta (1999) 21 Cal.4th 903, 915.) In a footnote, appellant
20.
Here, appellant disputed the charges filed against him, making his criminal intent a
relevant issue for the jury. To prove that he had committed lewd acts, the prosecution
was required to show that he had acted with the intent of arousing, appealing to, or
gratifying his lust, passions or sexual desires. (§ 288, subd. (a); CALCRIM No. 1110.)
It was undisputed that appellant had viewed a wide variety of adult pornography,
including videos with titles that purported to show one father sexually abusing his
daughter, and another father forcing his daughter to perform fellatio. Although these two
disputed videos may have depicted adult performers, that does not lessen the relevancy of
their titles. Instead, those titles strongly suggested that the videos purported to depict
sexual acts occurring between family members and involving females who were
supposedly underaged. Because he watched these videos, the circumstantial evidence
strongly suggested that appellant may have derived sexual gratification from scenes of
incest, or daughters abused and/or forced to perform sex acts. As such, these titles had a
tendency in reason to prove or disprove a disputed issue of fact that was of consequence
to the action. (Evid. Code, § 210.) Thus, this evidence was relevant to the issue of
appellant’s criminal intent regarding his own underaged daughter, and whether he had
intended to commit lewd acts with her. Accordingly, these titles had probative value.
Indeed, the title regarding a father abusing his sleeping daughter was extremely similar to
some of the charged behavior in this matter.
Appellant argues that the second disputed video purported to show fellatio, but he
was not charged in this matter with oral copulation. According to appellant, there was no
similarity between that video’s title and his conduct with the Victim. Thus, appellant
contends that, at the very least, the court abused its discretion in allowing the jury to learn
asserts that Evidence Code section 1108 is inapplicable in this situation. He notes that
the parties agreed below that these two pornographic videos involved adult rather than
child actors. We agree that Evidence Code section 1108 is inapplicable here because
nothing establishes that appellant committed a criminal offense when watching or
possessing these videos.
21.
that he had visited that second website. We disagree. Although appellant was not
charged with oral copulation in this matter, the title of the second video was nevertheless
relevant to the pending charges. Just like the first video, the second video reasonably
suggested that appellant had an unnatural sexual interest regarding fathers and daughters.
The second video also reasonably demonstrated that appellant had a repeated and
ongoing desire to view videos depicting this theme. Thus, even the second video had
probative value, and we cannot state that the trial court abused its discretion in
determining that both videos were relevant.
Finally, we reject appellant’s arguments that the introduction of these titles was
more prejudicial than probative. A trial court may exclude otherwise admissible
evidence if its probative value is substantially outweighed by its prejudicial effect; that is,
if its admission would result in the undue consumption of time, a danger of undue
prejudice, confusion about the issues or the danger of misleading the jury. (Evid. Code,
§ 352.) “Evidence is substantially more prejudicial than probative [within the meaning of
section 352] if, broadly stated, it poses an intolerable ‘risk to the fairness of the
proceedings or the reliability of the outcome’ [citation].” (People v. Waidla (2000) 22
Cal.4th 690, 724.)
The admission of this evidence did not result in an undue consumption of time.
The jury learned about these titles through the testimony of the lead detective. Her d irect
testimony in this regard was very short, overlapping in two pages of the reporter’s
transcript. Nothing about this testimony demonstrates or even reasonably suggests that
the jury would have been confused or misled. Instead, the detective simply read the two
titles from the forensic report which showed that appellant had found these videos on the
internet, watched them, and subsequently deleted them from his browser’s history.
Although the disputed titles conveyed subject matters that are deplorable, the
jurors did not view the actual videos or see the acts which the titles suggested. The brief
mention of these two titles could not have possibly posed an intolerable risk to the
22.
fairness of the proceedings or the reliability of the trial outcome. Especially in light of
the overwhelming evidence introduced against appellant, it does not appear reasonably
likely that these titles would have inflamed the emotions of the average juror, motivating
them to use this information to punish appellant. (See Vorse v. Sarasy (1997) 53
Cal.App.4th 998, 1009 [setting forth these requirements to deem evidence more
prejudicial than probative].) Consequently, it cannot be stated that this evidence was
more prejudicial than probative. (Evid. Code, § 352.)
Based on this record, the trial court did not exercise its discretion in an arbitrary,
capricious or patently absurd manner. The court’s evidentiary ruling did not fall outside
the bounds of reason under the applicable law and relevant facts. Further, a manifest
miscarriage of justice did not occur. Thus, an abuse of discretion is not present and this
claim fails. In any event, we also conclude that any presumed error was harmless.
2. Any presumed error was harmless.
A trial court’s discretionary ruling involving the ordinary rules of evidence does
not normally implicate the federal Constitution. (People v. Cudjo (1993) 6 Cal.4th 585,
611; see also People v. Bradford (1997) 15 Cal.4th 1229, 1325 [disallowing defense
evidence is not also the denial of the right to present a defense].) Thus, the standard
under Watson, supra, 46 Cal.2d at p. 836, is the appropriate method to analyze any
alleged harm from evidentiary error. (People v. Cudjo, supra, 6 Cal.4th at p. 611.)
Under this standard, we ask whether it is reasonably probable the verdict would have
been more favorable to the defense absent the error. (Watson, supra, 46 Cal.2d at
p. 836.)
Here, during trial, appellant’s counsel had the lead detective admit that she had no
idea what the actual videos looked like. During closing argument, the prosecutor only
briefly mentioned these disputed titles. The prosecutor asserted that these porn sites,
along with appellant’s possession of photos depicting the Victim’s vagina, were
23.
circumstantial evidence corroborating the Victim’s testimony. The prosecutor also
argued that these videos demonstrated that appellant had lied about randomly watching
pornography. According to the prosecutor, this was “not a series of unfortunate events”
and, instead, appellant had twice watched the video about the father abusing a sleeping
girl. The prosecutor emphasized to the jurors that these titles were not meant to prove the
charge of child pornography, which was established by the photos of the Victim. The
prosecutor acknowledged to the jurors that adult pornography is “common” and
“normal.” The prosecutor stated that it is not a crime for consenting adults to watch adult
pornography. However, the prosecutor argued that it was not a coincidence that appellant
had watched these videos. Instead, this is what gratifies him sexually.
Although the prosecutor mentioned these titles during closing argument, they were
not a cornerstone of the prosecution’s case, and the prosecutor acknowledged to the jury
that these titles were not meant to prove the child pornography charges. Moreover, this
was not a close case. The prosecution introduced overwhelming evidence establishing
appellant’s criminal intent. The Victim’s testimony was consistent and credible. The
photos and videos recovered from appellant’s phone corroborated her accusations that he
had touched her inappropriately. Indeed, appellant twice photographed himself touching
and manipulating her vagina. He also recorded himself touching her buttocks while
pulling down her underwear slightly and describing her as having a “sexy body” and she
was driving him crazy. Appellant kept photos of the Victim’s vagina hidden on a secret
app along with naked photos of women, and photos of his own erect penis. The day after
the Victim disclosed this abuse, appellant texted her saying he was sad because he had
told her “not to say.”
Based on the overwhelming evidence introduced against appellant, it is not
reasonably probable he would have obtained more favorable verdicts had the trial court
precluded one or both of the disputed titles from being introduced into evidence. As
such, any presumed evidentiary error is harmless, and this claim fails.
24.
III. Appellant Fails to Demonstrate that his Counsel was Ineffective in Failing to
Seek a Limiting Instruction Regarding the Titles of the Pornographic Videos.
Appellant contends that his trial counsel was ineffective because he failed to
request a limiting instruction regarding the two titles of the pornography videos which
were discovered on his cell phone and disclosed to the jury. Based on alleged prejudice,
he seeks reversal of all of his convictions.
In relevant part, CALCRIM No. 375 instructs jurors that, if they decide a
defendant has committed uncharged acts, they may (but are not required to) consider such
evidence for the limited purpose of deciding whether the defendant acted with the
required specific intent to prove the charged offenses. However, the instruction also
informs the jurors that they cannot consider this evidence for any other purpose, and they
cannot conclude from the evidence that the defendant has a bad character, or is disposed
to commit crime. (CALCRIM No. 375.)
It is undisputed that appellant’s trial counsel did not request this limiting
instruction, which was not read to appellant’s jury. The trial court did not have a sua
sponte duty to provide this limiting instruction. (People v. Hawkins (1995) 10 Cal.4th
920, 942, overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89.)
Appellant argues that his trial counsel could have had no legitimate tactical reason for not
requesting this limiting instruction. He contends it is reasonably probable the outcome of
this matter would have been different if his counsel had requested such an instruction.
We reject appellant’s claim. To show ineffective assistance of counsel, a
defendant must establish two criteria: (1) that counsel’s performance fell below an
objective standard of reasonable competence and (2) that he was thereby prejudiced.
(Strickland v. Washington, supra, 466 U.S. at pp. 687–688.) The defendant has the
burden of showing both deficient performance and resulting prejudice. (People v. Lucas,
supra, 12 Cal.4th at p. 436.) To establish prejudice, a defendant must demonstrate a
25.
reasonable probability that, absent the errors of counsel, the result would have been
different. (Ibid.) This must be enough to undermine confidence in the outcome. (Ibid.)
In the present matter, we need not analyze whether or not defense counsel acted
reasonably in failing to request a limiting instruction regarding the two disputed titles.
Instead, appellant does not establish that he was prejudiced from his counsel’s alleged
ineffective assistance. (See People v. Mendoza (2000) 24 Cal.4th 130, 164 [“If the
defendant fails to show prejudice, a reviewing court may reject the claim without
determining the sufficiency of counsel’s performance.”].) We have already concluded
that overwhelming evidence was introduced to establish appellant’s guilt for all of the
charged crimes. Moreover, the prosecutor did not overly emphasize these two titles
during closing argument, and the prosecutor informed the jurors that these titles were not
intended to prove the child pornography charges. During the defense close, appellant’s
trial counsel argued to the jury that appellant had a history of looking at adult
pornography, and he had sought out strippers and prostitutes. According to the defense,
the disputed videos were not “his entire pornographic profile.” Defense counsel asserted
that his pornographic history showed that he is sexually attracted to adult women.
Based on this record, our confidence in the outcome of this trial is not undermined.
(See Strickland v. Washington, supra, 466 U.S. at pp. 687–688; People v. Lucas, supra,12 Cal.4th at p. 436.) Appellant’s guilt was conclusively established. Thus, we reject
appellant’s assertion that this was a “relatively close case.” He does not establish that a
reasonable probability exists that the outcome of this matter would have been different
had his counsel requested this limiting instruction. Accordingly, appellant does not show
that his counsel rendered ineffective assistance, and this claim fails.
IV. We Vacate any Remaining Balance Owed for the Presentence Probation
Report.
At sentencing, the trial court ordered appellant to pay $500 to cover the cost of the
presentence probation report pursuant to former section 1203.1b. The parties agree, as do
26.
we, that it is appropriate to vacate any remaining balance of this imposed financial
obligation.
Effective July 1, 2021, Assembly Bill No. 1869 (2019-2020 Reg. Sess.) repealed
former section 1203.1b and abrogated the court’s authority to impose and collect the
probation report fee. This bill also enacted section 1465.9, which made any balance
remaining due uncollectible and unenforceable. (People v. Clark (2021) 67 Cal.App.5th
248, 259–260.) Accordingly, we will vacate any remaining balance owed.
V. Appellant Did Not Suffer Prejudice from the Sentencing Error in Counts 3
and 9.
In count 3, appellant was convicted of a lewd act (touching the Victim’s vagina
the first time) in violation of section 288, subdivision (a). The court deemed this
conviction the principal determinate term, and it imposed an aggravated prison sentence
of eight years.
In count 9, appellant was convicted of possession of child pornography in
violation of section 311.11, subdivision (a). The court imposed an aggravated term of
three years, but this sentence was stayed.
At sentencing, the trial court cited the following three factors in aggravation:
(1) The Victim was particularly vulnerable because appellant committed some
of the sexual offenses “on many occasions” when she was asleep;
(2) The manner in which the crimes were committed demonstrated
sophistication or professionalism on appellant’s part because he had the Victim sleep in
the same bed with him, and he convinced her to lie to law enforcement and report it was
the Boyfriend who had committed these offenses; and
(3) As the Victim’s parent, appellant took advantage of a position of trust.
When this sentencing occurred in June 2021, the court had discretion to select a
prison term that best served the interests of justice. (§ 1170, former subd. (b).) The court
was permitted to consider the circumstances in aggravation or mitigation, “and any other
27.
factor reasonably related to the sentencing decision.” (Cal. Rules of Court, former rule
4.420(b).) The court could rely on “the case record, the probation officer’s report, other
reports and statements properly received, statements in aggravation or mitigation, and
any evidence introduced at the sentencing hearing.” (Ibid.)
However, in October 2021, Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate
Bill 567) was signed into law, which amended section 1170, subdivision (b). (People v.
Dunn (2022) 81 Cal.App.5th 394, 402 (Dunn).) Under the current law, the middle term is
the presumptive sentence unless certain circumstances exist. (Ibid.) Effective January 1,
2022, a trial court may now impose an upper term sentence only where there are
circumstances in aggravation that justify the imposition of a term of imprisonment
exceeding the middle term. (Ibid.) Further, a trier of fact must have found true beyond a
reasonable doubt those facts underlying all of the aggravating circumstances, or the
defendant must have stipulated to them. (Ibid.) A court is required to state on the record
the facts and reasons for choosing the sentence imposed. (§ 1170, subd. (b)(5).)
A. This change in law retroactively applies to appellant.
The parties agree, as do we, that this change in law applies retroactively to
appellant. A panel from this court has already held that Senate Bill 567 applies
retroactively to criminal matters that are not yet final on appeal. (Dunn, supra, 81
Cal.App.5th at p. 403.) Because appellant’s criminal matter is not yet final, he benefits
from Senate Bill 567.
Although respondent concedes that Senate Bill 567 retroactively applies to
appellant, respondent argues that a remand should be denied because any sentencing error
was harmless. Respondent asks us to follow People v. Flores (2022) 75 Cal.App.5th 495,
500 (Flores). In contrast, appellant contends that a new sentencing hearing is required
because the jury did not find true the factors in aggravation upon which the trial court
relied. Appellant asserts that he was prejudiced because it is unknown what conclusions
28.
the jurors would have reached had they been asked to consider whether the aggravating
factors were true. In general, appellant asks us to follow People v. Lopez (2022) 78
Cal.App.5th 459 (Lopez). He urges us to not follow Flores, contending it was wrongfully
decided.
We decline to rely on respondent’s cited authority, Flores. Nevertheless, we agree
with respondent that a remand is not warranted. Based on both Lopez and this court’s
opinion in Dunn, we conclude that any sentencing error was harmless.
B. The approach articulated in Lopez.
In Lopez, the opinion upon which appellant relies, the Court of Appeal for the
Fourth District, Division One, determined that, when a jury is required to find true a
sentencing factor beyond a reasonable doubt and the court fails to submit that factor to
the jury, that error may be deemed harmless if the reviewing court can conclude beyond a
reasonable doubt that a jury would have found true beyond a reasonable doubt every
factor on which the trial court relied in imposing the aggravated sentence. (Lopez, supra,
78 Cal.App.5th at pp. 465–466.) If the reviewing court cannot reach such a conclusion,
the question then is whether it is reasonably probable12 the trial court would have
nevertheless imposed the upper term if it had recognized that it could permissibly rely on
only one, a few, or none of the aggravating factors—rather than all of them—on which it
previously relied. (Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11.) If the answer to both
of these questions is in the negative, a remand is required for the trial court to resentence
the defendant. (Ibid.)
C. The approach articulated in Dunn.
Following Lopez, this court in Dunn likewise held that, if an aggravated sentence
was imposed in violation of Senate Bill 567, any error can be deemed harmless pursuant
12 This standard is taken from Watson, supra, 46 Cal.2d at p. 836. (Lopez, supra, 78
Cal.App.5th at p. 467, fn. 11.)
29.
to a two-step analysis. (Dunn, supra, 81 Cal.App.5th at p. 401.) The Dunn court,
however, disagreed with Lopez in one aspect. Instead of requiring a finding beyond a
reasonable doubt that the jury would have found true all aggravating factors beyond a
reasonable doubt, Dunn holds that a reviewing court need only conclude beyond a
reasonable doubt that the jury would have found true beyond a reasonable doubt the facts
underlying at least one aggravating circumstance supporting the imposition of the upper
term. (Dunn, supra, at p. 401.) If so, then regarding the remaining aggravating factors (if
any) which the trial court originally relied upon, the issue is whether the reviewing court
can then state that there is a reasonable probability the jury would have found the
remaining aggravating circumstance(s) true beyond a reasonable doubt. If these
questions are resolved in the affirmative, then the sentencing error may be deemed
harmless.13 (Dunn, supra, 81 Cal.App.5th at p. 401.)
The Dunn court explained in detail why it did not agree with Lopez’s holding that
the federal standard of review under Chapman, supra, 386 U.S. 18, must be applied to all
aggravating circumstances. We do not recreate that full discussion here. In general,
however, Dunn was concerned that Lopez had not provided a full and clear explanation
for its holding. (Dunn, supra, 81 Cal.App.5th at pp. 408–409.) Moreover, Dunn noted
that the California Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825 holds that
at least one aggravating factor must be proven to the Chapman harmless error standard to
satisfy the Sixth Amendment of the United States Constitution, but ordinary errors of
state law are subject to review pursuant to Watson, supra, 46 Cal.2d 818. (Dunn, supra,
13 The Dunn court clarified that, in order to reach the second step of the analysis, the
reviewing court must conclude beyond a reasonable doubt that the jury would have found
at least one aggravating circumstance true beyond a reasonable doubt. Otherwise, the
sentence violates the Sixth Amendment of the United States Constitution. (Dunn, supra,
81 Cal.App.5th at p. 401, fn. 5.) In relevant part, the Sixth Amendment declares that an
accused person in a criminal trial has the right to a speedy and public trial by an impartial
jury.
30.
81 Cal.App.5th at p. 409, citing People v. Sandoval, supra, 41 Cal.4th at p. 839.)
Accordingly, Dunn holds that a minimum of one aggravating circumstance must be
reviewed pursuant to Chapman, but the remaining aggravating circumstances (if any)
involve only a state-created right to a jury trial that must be reviewed pursuant to Watson.
(Dunn, supra, 81 Cal.App.5th at p. 409.)
Regarding the final step of the analysis, Dunn followed a similar approach to
Lopez. According to Dunn, if at least one aggravating circumstance would have been
found true but all aggravating circumstances would not have been found true, the
reviewing court then asks whether there is a reasonable probability the trial court would
have imposed the upper term sentence in light of the aggravating circumstances provable
from the record. (Dunn, supra, 81 Cal.App.5th at p. 401.) If the answer is in the
affirmative, the sentencing error may be deemed harmless. (Ibid.)
D. The approach articulated in Flores.
Both Dunn and Lopez disagreed with the opinion that respondent cites, Flores,
supra, 75 Cal.App.5th 495. In Flores, the Court of Appeal for the First Appellate
District, Division Three, held that sentencing error under Senate Bill 567 could be
deemed harmless if a reviewing court can conclude beyond a reasonable doubt that the
jurors would have found true beyond a reasonable doubt at least one aggravating
circumstance had it been submitted to them. (Flores, supra, 75 Cal.App.5th at p. 500.)
Respondent asks us to follow Flores. However, both Dunn and Lopez criticized
how Flores analyzed prejudice in this situation, finding it too narrow. (See Dunn, supra,
81 Cal.App.5th at p. 408; Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11.) Dunn
concluded that Flores was flawed in this regard because it did not provide “a complete
standard” to analyze harmless error. (Dunn, supra, at p. 408.) We agree with the
concerns articulated in Dunn regarding the analytical shortcomings appearing in Flores.
As such, we decline to follow Flores. However, we nevertheless agree with respondent
31.
that the sentencing error in this matter is harmless. We reach that conclusion under the
approaches articulated in both Dunn and Lopez.
E. This matter.
We need not fully analyze the multiple steps articulated in either Dunn or Lopez to
analyze harmless error in this situation. Instead, we need not go past the first inquiry.
We can state beyond a reasonable doubt that the jury would have found true beyond any
reasonable doubt all of the aggravating factors upon which the trial court relied to impose
the upper term sentences.
The trial evidence overwhelmingly demonstrated that the Victim was particularly
vulnerable. She was eight years old and younger when these crimes occurred, and
appellant committed some of the sexual offenses when she was asleep. The evidence
also overwhelmingly established that appellant committed these crimes in a sophisticated
manner. The Victim explained that, when she would go to sleep in her own bed,
appellant would talk about ghosts or some other scary subject. She would then crawl into
bed with him because she was frightened. The Victim told the jury that on multiple
occasions, and occurring at least 10 times, if not more, she would be in his bed and he
would climb on top of her naked and place his penis or hand against her vagina.
Appellant also convinced the Victim to lie to law enforcement. He used duress to
compel her to report it was the Boyfriend who had molested her. She explained that she
had falsely accused the Boyfriend because she had felt scared and pressured to do so
from appellant.
Finally, the evidence overwhelmingly showed that, as the Victim’s parent,
appellant took advantage of his position of trust to commit these crimes. At trial, the
Victim said she loved appellant, and she had thought that he was committing these crimes
for his own pleasure. She had wanted to make her father happy, and she had wanted to
make him feel good.
32.
Appellant concedes that evidentiary support exists for all three of the factors in
aggravation upon which the trial court relied. However, appellant asserts that, because
those factors are subjective in nature, it is impossible for this court to determine beyond a
reasonable doubt that the jury would have found any of them true. We disagree. The
evidence conclusively and overwhelmingly established that the Victim was particularly
vulnerable, appellant used a sophisticated approach to commit these crimes, and he
abused his position of trust over her. Therefore, appellant’s sentence does not violate the
Sixth Amendment of the United States Constitution. (Dunn, supra, 81 Cal.App.5th at
p. 401, fn. 5.) Under both Dunn and Lopez, this sentencing error may be deemed
harmless. (Dunn, supra, 81 Cal.App.5th at p. 401; Lopez, supra, 78 Cal.App.5th at
p. 467, fn. 11.) Consequently, we will not vacate the sentences in counts 3 and 9, and this
claim fails.
VI. The Sentence in Count 10 is Reduced from Two Years to Eight Months.
For count 10, the jury convicted appellant of using a minor to create child
pornography in violation of section 311.4, subdivision (c). For this conviction, the trial
court imposed a subordinate determinate term of two years. The parties agree, as do we,
that this sentence is erroneous. The probation report had a scrivener’s error and it listed
this conviction under section 311.4, subdivision (b), which has a longer sentencing triad.
For the actual conviction in count 10, the sentencing triad under section 311.4,
subdivision (c), is 16 months, or two or three years in the state prison. (See § 18, subd.
(a).) Accordingly, appellant’s subordinate determinate sentence in count 10 must be
reduced to eight months, which represents one-third of the middle term.
We would normally remand this matter for resentencing. However, a remand is
not warranted in this situation because the trial court otherwise imposed the maximum
possible sentence against appellant. (See People v. Buycks (2018) 5 Cal.5th 857, 896,
33.
fn. 15.) Consequently, we will direct the trial court to issue an amended abstract of
judgment reflecting this modification in appellant’s sentence.
Finally, the determinate abstract of judgment has an additional clerical error
regarding count 10. The abstract incorrectly lists this conviction as occurring under
section 311.11, subdivision (a). We will direct the court to correct that mistake when it
issues the amended abstract. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [an
appellate court may correct clerical errors appearing in abstracts of judgment either on its
own motion or upon application of the parties].) The amended abstract shall reflect a
conviction in count 10 in violation of section 311.4, subdivision (c).
VII. Appellant has Forfeited his Claim that Sentencing Error Occurred in Counts
1 and 2; In any event, this Claim Fails on its Merits and Appellant does not
Demonstrate Ineffective Assistance of Counsel.
In counts 1 and 2, the trial court imposed consecutive prison sentences of 15 years
to life for appellant’s sexual penetration of the Victim (§ 288.7, subd. (b)). These
convictions were based on the photos discovered on appellant’s cell phone in a
clandestine app in which he was seen manipulating the Victim’s vagina. He used his
finger in one picture and his thumb in another picture to open her vagina. 14
At sentencing, the court noted the “egregious” nature of appellant’s actions. In
general, it observed that all of appellant’s crimes “were independent of each other”
because they occurred on separate dates and occasions, and involved different types of
misconduct. With respect to counts 1 and 2, the court stated that these two offenses were
committed on different occasions.15
In the present claim, appellant asserts that the trial court’s reasoning for imposing
these consecutive sentences was factually flawed. He argues that the evidence shows that
14 Only a slight penetration of the labia majora is needed to establish a sexual
penetration of a female victim. (People v. Quintana (2001) 89 Cal.App.4th 1362, 1364.)
15 When imposing this sentence, the trial court misspoke regarding the exhibit
number supporting the conviction in count 2.
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his criminal conduct in counts 1 and 2 occurred during the same incident. In the
alternative, he contends that his trial counsel was ineffective in failing to object to this
sentence. Appellant requests that we remand this matter for resentencing so the trial
court can reassess the issue of whether consecutive or concurrent sentences should be
imposed in counts 1 and 2.
We reject appellant’s arguments. This claim is forfeited and, in any event, it fails
on its merits.
A. This claim is forfeited.
Our Supreme Court holds that a defendant must object at sentencing regarding
claims that the lower court failed to properly make or articulate its discretionary
sentencing choices. Failure to raise those concerns below results in forfeiture. (People v.
Boyce (2014) 59 Cal.4th 672, 730–731.)
It is undisputed that appellant did not object below regarding the imposition of
consecutive sentences in counts 1 and 2. Consequently, we agree with respondent that
appellant has forfeited this claim. In any event, we also reject this claim on its merits and
appellant fails to demonstrate ineffective assistance of counsel.
B. The trial court did not abuse its sentencing discretion.
Trial courts have the discretion to impose concurrent or consecutive sentences
when confronted with multiple convictions. (§ 669, subd. (a); People v. Woodworth
(2016) 245 Cal.App.4th 1473, 1479.) To establish sentencing error in this matter,
appellant points to California Rules of Court, rule 4.425. In relevant part, this rule
permits a sentencing court to impose a consecutive sentence if the crimes were
committed “at different times or separate places, rather than being committed so closely
in time and place as to indicate a single period of aberrant behavior.” (Cal. Rules of
Court, rule 4.425(a)(3).) Appellant notes that the photographs showing his manipulation
of the Victim’s vagina were taken on the same day (September 30, 2016). He contends
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that these photos were likely taken in the same photo shoot. Thus, he contends that these
pictures were taken so closely in time and place as to indicate a single period of aberrant
behavior. Moreover, he argues that these two pictures show a single criminal objective.
We disagree that the court abused its sentencing discretion. California Rules of
Court, rule 4.425, which appellant cites, is only a guideline for a sentencing court, and it
does not impose a rigid obligation. (People v. Calderon (1993) 20 Cal.App.4th 82, 86–
87.) Moreover, only a single factor in aggravation is required to impose a consecutive
term. (People v. Osband (1996) 13 Cal.4th 622, 728–729.)
Although these pictures were taken on the same day, it is impossible to determine
from this record how much time passed from when appellant took the first photo until he
took the second one. However, the record does demonstrate that some time did pass
between the taking of both pictures. In the first picture, appellant used his finger to
manipulate the Victim’s vagina. In the second picture, appellant used his thumb to open
her vagina. Thus, it is clear that appellant changed the position of his hand after he
inappropriately touched her the first time, and he touched her again with a different digit.
As such, the record amply supports the trial court’s determination that these crimes
occurred on different occasions.
It is apparent that appellant had an opportunity to reflect on his criminal behavior
before he took each photo and touched the Victim in different ways. In addition, the
crimes in counts 1 and 2 involved several other aggravating circumstances. The Victim
was particularly vulnerable. Further, the manner in which appellant touched her,
photographing the different times he manipulated her vagina, indicated that he had
planned out his lewd behavior in advance. (See Cal. Rules of Court, rule 4.421(a)(3) &
(8) [circumstances in aggravation].) Finally, the court noted the “egregious” conduct that
appellant exhibited throughout all of his criminal acts. Appellant concedes that this
finding in aggravation could also support a consecutive sentence. We agree. Except in
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certain limited exceptions, any circumstance in aggravation may be considered in
deciding whether to impose a consecutive sentence. (Cal. Rules of Court, rule 4.425(b).)
Based on this entire record, the trial court had ample grounds to impose
consecutive sentences in counts 1 and 2. We will not disturb the exercise of that
discretion. (See People v. Davis (1995) 10 Cal.4th 463, 552 [affirming imposition of
consecutive sentence].) As such, this claim fails. We also determine that ineffective
assistance of counsel did not occur.
C. Appellant fails to demonstrate ineffective assistance of counsel.
We agree with respondent that it is not reasonably probable a more favorable
sentence would have been imposed even if appellant’s trial counsel had objected. Prior
to sentencing, the probation department had recommended consecutive indeterminate
prison terms in counts 1 and 2. In addition, the prosecutor asserted that appellant should
receive the maximum possible aggregate sentence, including consecutive sentences in
counts 1 and 2. According to the prosecutor, appellant had used the Victim as a pawn in
his life, and he had acted abhorrently as a father.
At sentencing, the trial court stated that appellant had acted egregiously with the
Victim, and the court concluded that the crimes in counts 1 and 2 had occurred on
different occasions. The court imposed the maximum possible sentence against
appellant, imposing an upper determinate term of eight years in count 3 for committing a
lewd act upon a child in violation of section 288, subdivision (a). Consequently, it is
readily apparent that, even if defense counsel had objected, the court would have
nevertheless imposed consecutive sentences in counts 1 and 2. As such, appellant’s
claim of ineffective assistance fails for lack of prejudice. (See People v. Lucas, supra, 12
Cal.4th at p. 436.) Our confidence in the outcome of this matter is not undermined.
(Ibid.) Therefore, appellant’s arguments are without merit and resentencing is not
required.
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VIII. We Vacate the Fine Imposed under Section 294, Subdivision (b).
At sentencing, the trial court imposed a $1,000 restitution fine pursuant to section
294, subdivision (b). The parties agree, as do we, that the imposition of this fine was in
error.
Section 294 permits a restitution fine if a defendant commits certain enumerated
crimes. However, none of those enumerated crimes are applicable in this matter. As
such, we agree with the parties that this fine must be vacated.
DISPOSITION
The judgment is modified as follows:
The subordinate determinate sentence imposed in count 10 is reduced from two
years to eight months. The fine imposed under section 294, subdivision (b), is vacated.
Any unpaid balance for the presentence probation report fee imposed under former
section 1203.1b is vacated. The trial court shall prepare an amended determinate abstract
of judgment that reflects these modifications. The court shall also reflect in the amended
abstract that appellant was convicted in count 10 of violating section 311.4, subdivision
(c). The court shall forward the amended abstract of judgment to the appropriate
authorities. In all other respects and, as modified, we affirm the judgment.
LEVY, Acting P. J.
WE CONCUR:
FRANSON, J.
MEEHAN, J.
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