People v. Quiroz CA2/1 ( 2023 )

Filed 12/28/23 P. v. Quiroz CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B322756
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA475932)
v.
JOSE DE JESUS QUIROZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Ray G. Jurado, Judge. Affirmed.
Benjamin Owens, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Jason Tran and Kristen J. Inberg, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________________
Jose De Jesus Quiroz appeals from a judgment entered
after a jury found him guilty of misdemeanor elder or dependent
abuse and felony sexual battery on an elder or dependent adult,
committed while he was working as a certified nursing assistant
at a facility where the victim was undergoing rehabilitation after
suffering a stroke. The trial court sentenced him to two years in
state prison.
Quiroz contends the trial court erred in instructing the jury
that sexual battery is a general intent crime. We agree the court
so erred, but we disagree with Quiroz’s contention that the error
was prejudicial. The court properly instructed the jury on the
elements of sexual battery, including the specific intent element,
and informed the jurors that they could not find Quiroz guilty of
sexual battery unless the prosecution proved each element of the
offense beyond a reasonable doubt. Based on the jury
instructions given, therefore, the jury was required to find Quiroz
acted with the requisite specific intent before it could find him
guilty of sexual battery. Any error in incorrectly stating to the
jury that sexual battery is a general intent crime was harmless
under any standard of harmless error review.
BACKGROUND
I. Charges and Pretrial Proceedings
A second amended information, filed by the California
Attorney General’s Office, charged Quiroz with four felony
offenses: in count 1, sexual abuse of an elder or dependent adult,
Rossana Y. (Pen. Code,1 § 368, subd. (b)); in count 2, sexual abuse
of an elder or dependent adult, Gloria A.; in count 3, sexual
battery on an elder or dependent adult, Rossana Y. (§ 243.4,
1 Undesignated statutory references are to the Penal Code.
2
subd. (b)); and in count 4, attempted sexual battery on an elder or
dependent adult, Gloria A. As to each count, the information
alleged the following circumstances in aggravation: the offense
“involved great violence, great bodily harm, threat of great bodily
harm, and other acts disclosing a high degree of cruelty,
viciousness, and callousness” (Cal. Rules of Court,2 rule
4.421(a)(1)); the victim was “particularly vulnerable” (rule
4.421(a)(3)); the offense was carried out in a manner that
“indicates planning, sophistication, or professionalism” (rule
4.421(a)(8)); Quiroz “took advantage of a position of trust or
confidence to commit the offense” (rule 4.421(a)(11)); and Quiroz
“engaged in violent conduct that indicates a serious danger to
society” (rule 4.421(b)(1)).
During pretrial proceedings, pursuant to Evidence Code
section 1101, subdivision (b), the trial court granted the
prosecution’s motion to admit evidence of prior uncharged sexual
conduct involving Quiroz’s former coworker, N.J. The court found
N.J. to be unavailable for trial due to illness and ruled that the
prosecution could play for the jury the video recording of her
preliminary hearing testimony. The court also allowed the
prosecution to play for the jury the video recordings of Rossana’s
and Gloria’s preliminary hearing testimony, finding them to be
unavailable for trial because Rossana was ill and Gloria was
deceased.3
2 Undesignated rule references are to the California Rules
of Court.
3 Quiroz does not challenge any of these rulings in this
appeal.
3
II. Trial4
In support of the charges against Quiroz, the prosecution
presented evidence and argument that Quiroz touched an
intimate part of Rossana against her will for the specific purpose
of sexual arousal, sexual gratification, or sexual abuse. The
defense presented evidence and argument that Quiroz engaged in
no wrongful conduct, and Rossana misinterpreted his actions and
intent when he cleaned her while changing her diaper.
A. Prosecution case
1. Sexual battery of Rossana
In June 2018, Rossana, who was then in her seventies,
suffered an ischemic stroke involving the frontal, temporal, and
occipital regions of the brain. For approximately two months,
from July to August 2018, she was a patient at a rehabilitation
center, where she was bedbound.
Rossana testified that at approximately 11:00 p.m. on
August 6, 2018, she pressed the call button for assistance because
she needed to use the commode. A man she later identified in
court as Quiroz,5 a certified nursing assistant, responded, and she
told him what she needed. He lifted her out of bed and placed
4 As explained below, Quiroz was not convicted of either of
the counts involving Gloria, a patient undergoing rehabilitation
at the same center as Rossana. Accordingly, we do not
summarize herein the evidence related to the charges involving
Gloria because such evidence is not germane to Quiroz’s
contention in this appeal.
5 During the course of law enforcement’s investigation and
during her testimony, Rossana stated that the person who
assaulted her had tattoos on his arm. Quiroz did not have a
tattoo on his arm.
4
her on the commode. While she was sitting there, he grabbed her
breasts with both of his hands. No other staff member had
grabbed her like that before. She said, “No.” He placed his hand
under her chin, pushed her head back, and tried to kiss her. She
told him he smelled like garlic because she was allergic to garlic.
He said he had not eaten any garlic. He stood upright, removed
his hand from under her chin, and moved her back to the bed.
She told him she had not urinated yet, and he said she could call
him back to her room at any time.
Rossana further testified that shortly thereafter, between
11:30 p.m. and 12:00 a.m., she pressed the call button again and
Quiroz responded. By then, she had urinated in her diaper. He
told her that he would change it. While doing so, he touched her
“private part down there,” moving his gloved hand “in a circular
motion back and forth, back and forth.” No other staff member
had touched her like that before. She repeatedly said, “No,” and
tried to push him away. He asked her, “Do you feel good,” and
she kept saying, “No.” He placed two fingertips into her “private
part down there,” and he “kept pushing in and pulling out.” He
repeatedly asked, “Feeling good? Feeling good?” She told him,
“No,” and used her right hand to push him away. She tried to
kick him, but she was unable to lift her leg due to her medical
condition.
Quiroz walked along the side of the bed until he was
standing next to Rossana’s head. He pushed her head to face
him. He unzipped his pants and pulled out his penis. She tried
to grab his necklace to stop him from touching her, but she could
not reach it. She felt “very, very frightened.” His demeanor was
“very aggressive.” He wanted her to touch his penis, but she did
not. He climbed on top of her body. He asked her where she
5
lived, and she responded. She asked him where he lived, and
when he responded, she commented on the demographics of his
neighborhood and he expressed agreement with her comments.
He continued to touch her body, and she said, “No, help, no.” She
tried to scratch him with her hand. He became angry and used
his two hands to push her shoulders into the bed. She felt pain in
her left arm and shouted. Quiroz left her room.6
Immediately thereafter, Rossana called one of her sons, but
he did not answer. Then, she called her husband, Kim Y.,7 and
told him she was “scared” and wanted him to come to the
rehabilitation center. Surveillance video shows Kim arriving at
the center at 1:18 a.m. on August 7, 2018. According to Kim’s
trial testimony, he signed into the center and rushed to Rossana’s
room, and she told him that a male caregiver “who was helping
her with her need to go urinate” had “violated [her] by touching
[her] private part down there.” She “seemed very nervous” and
spoke “like she was in a hurry,” which was unlike her typical
“calm and mild” demeanor. She wanted to call the police, but
Kim told her not to make a big deal out of it and not to escalate
the matter. He was concerned she would be asked to leave the
center and he would not be able to find another place to care for
her. He spent the night in her room. During that time, she
pushed the call button and staff members responded to her room.
Kim testified that only female staff members came to the room,
6 Surveillance videos show Quiroz entering Rossana’s room
at 11:38 p.m. on August 6, 2018, and staying for approximately
six minutes, and entering her room at 12:12 a.m. on August 7,
2018, and staying for approximately 17 minutes.
7 We do not use Kim Y.’s surname to avoid disclosing
Rossana’s identity.
6
but surveillance video shows Quiroz entering Rossana’s room
several times in the hours after 1:00 a.m. on August 7, 2018, in
response to calls for assistance or for regular patient checks.
Sometime on August 7, 2018, Rossana called her friend,
Chris Evans, and told her what had happened at the
rehabilitation center. Evans testified at trial, stating that the
call from Rossana was “disturbing,” and noting that Rossana’s
“voice was very timid” and she spoke slowly during the call.
Evans sent a text message to Rossana’s son, Christopher Y.,
telling him that “something serious is going on at the facility”
and he needed to contact Rossana immediately.
Rosanna testified that on August 7, 2018, she reported the
incidents to a female nursing assistant who said she would
inform the office of the rehabilitation center. The administrator
of the center, Kip McMillan (who testified at trial), interviewed
Rossana in the early afternoon on August 7. Quiroz was
suspended from work that same day, pending the investigation.8
McMillan contacted law enforcement, and law enforcement
responded to the center. Rossana told McMillan and law
enforcement about the two incidents of inappropriate touching by
Quiroz described above. She stated that the second incident
occurred at approximately 2:00 a.m. on August 7 (which would
have been after her husband Kim arrived at the center at 1:18
a.m.), during “peri-care,” the cleaning of the genital area after a
bowl movement or urination. Kim recounted to a sheriff’s deputy
what Rossana told him about the incidents, but Kim told the
deputy he believed Quiroz “was just trying to wipe” Rossana.
8 Quiroz returned to work on August 29, 2018.
7
McMillan suggested Rossana undergo a full body
assessment to check for marks, bruises, or other evidence of
abuse, and Rossana refused because she “knew that there was
not going to be any evidence” because of the way Quiroz had
touched her while wearing gloves. Rossana expressed concern
about Quiroz returning to the center, so McMillan offered her a
room change so Quiroz would not know her location. She
declined. He also suggested she hire a “one-on-one sitter [to] be
with her 24/7,” which she did for the remainder of her stay, at an
out-of-pocket cost of $200 per day or approximately $10,000.
During the investigation, Rossana’s son Christopher Y.
(who testified at trial) told McMillan and/or law enforcement that
Rossana might misinterpret or overreact to things. He recounted
an incident that occurred after Rossana’s stroke, when a
caregiver at another facility was helping Rossana up from the
toilet. While adjusting his grip on her, the caregiver grabbed her
buttocks as he was setting her down. Rossana told Christopher,
“He touched my butt.” Christopher initially told law enforcement
that Rossana’s accusations against Quiroz might be a
misinterpretation of what occurred. During the course of the
investigation, however, he came to believe Quiroz sexually
assaulted Rossana.
The prosecution called a family medicine physician, who
opined that a hypothetical stroke patient, mirroring the facts of
Rossana’s case, “would be able to recollect a traumatic incident
like a sexual assault.”
2. Uncharged conduct involving N.J.
In 2013, while working as a certified nursing assistant at a
convalescent home, N.J. reported to her supervisor an incident of
sexual harassment by Quiroz, a fellow certified nursing assistant.
8
N.J. testified that one afternoon/evening, while she and Quiroz
were working as partners for the first time, Quiroz started
touching her hands, kissing her cheeks and lips, and feeling her
breasts. When he touched her breasts, he placed a hand over
each breast. She told him to stop, but he did not. He touched her
in three different rooms and in front of the nurse station,
ignoring her repeated requests for him to stop. Later that
evening, Quiroz grabbed her hand and forced her to touch his
penis while his uniform pants were down. At that point, she left
the room and did not work anymore. She reported the incident to
the supervising nursing assistant. N.J. identified Quiroz in court
as the person who did these things to her.
The human resource coordinator who investigated N.J.’s
allegations against Quiroz testified at trial. She stated that soon
after the incident, N.J. wrote a statement about what happened.9
B. Defense case
The defense called as a witness Gabriela Camacho, the
special services director who worked in that position at the
rehabilitation center when the charged offenses occurred and at
the time of trial. She testified that during Rossana’s stay at the
center, Rossana had episodes of confusion and forgetfulness.
After the incidents involving Quiroz, Camacho did not observe
signs of emotional distress in Rossana, and Rossana told
Camacho that she felt safe at the center. However, Rossana had
requested a 24-hour sitter because she was afraid of being alone
at the center.
9 The results of this investigation were not disclosed at
trial.
9
According to Camacho, on one occasion after the incidents,
Rossana accused her 24-hour sitter of stealing her towels.
Camacho verified with Kim that no theft of towels had occurred.
Rossana also reported that Quiroz was visiting her room at a
time during Quiroz’s suspension when he was not on the
premises.
The defense also called as a witness Xavior Suva, who was
the director of nursing at the rehabilitation center at the time
Rossana reported the incidents. He participated in the
investigation, including an interview of Rossana’s husband Kim.
According to Suva, Kim stated during the interview that 10
minutes after he arrived at the center on August 7, 2018,
Rossana pushed the call button and Quiroz responded. Kim told
Quiroz that Rossana needed to use the commode. Quiroz
removed her undergarment and transferred her to the commode.
When Rossana indicated she was done, Quiroz cleaned her with a
wipe with his gloved hands, transferred her back to the bed, and
replaced her undergarment. After Quiroz left the room, Rossana
told Kim, “He looks like he wants to put his fingers inside me.”
Kim told Suva that Quiroz returned to Rossana’s room several
times, and Kim did not witness any inappropriate behavior by
Quiroz.10
At trial, Suva explained the process of peri-care for a
female patient, which involves spreading the patient’s legs and
using wipes to clean inside the labia and around the vaginal and
rectal areas multiple times. Then, the nurse dries the patient
with a towel, places a clean diaper on the patient, and changes
10 As set forth above, Kim testified at trial that Quiroz did
not return to Rossana’s room after Kim arrived at the center on
August 7, 2018, but surveillance video showed otherwise.
10
the sheets if they are soiled. The entire process, including the
changing of the sheets, can take 30 to 45 minutes. It is common
for a nurse to remain in a patient’s room for more than 15
minutes because peri-care must be performed thoroughly to
prevent infection and irritation.
Suva further testified that according to Rossana’s medical
chart, she was alert and oriented during her stay at the
rehabilitation center, and her communication and cognition were
good. There was no indication that she was delusional or had
hallucinations.
Mickaela Importado testified that on August 29, 2018,
while she was working as a minimum data set nurse at the
rehabilitation center, she took notes regarding an incident
reported to her by Rossana’s caregiver. The notes state:
“Reported by resident’s caregiver that resident was stating to her
this morning [August 29, 2018] that last night [August 28, 2018]
the CNA [certified nursing assistant] came and went inside her
room and touched resident’s private part, and per resident, the
CNA is showing his private parts to everyone.”11
Kip McMillan, the center’s administrator, testified in the
defense case that he interviewed staff members and other
patients/residents of the center and none of them noticed
anything unusual on the nights of August 6 or the morning of
August 7, 2018 (when the charged offenses occurred).
11 The nursing assistant was not identified in the notes.
To
the extent Rossana was recounting to her caregiver an incident
that allegedly occurred on August 28, 2018—and was not
referring to the August 6-7, 2018 incidents—this uncharged
incident occurred during Quiroz’s suspension.
11
The defense called a neurologist, who testified that people
who suffer strokes on the right side of the brain are more prone to
cognitive impairment and misperception of reality, including
delusions, hallucinations, and paranoia. The neurologist opined
that a hypothetical stroke patient, mirroring the facts of
Rossana’s case, might perceive threats that are not real,
misinterpret events, and report things that did not occur.
Cognitive impairment would affect the hypothetical patient’s
ability to remember, interpret and attribute meaning to events.
The neurologist also testified, however, that it is possible that the
hypothetical patient would be able to recollect and recount a
sexual assault.
C. Verdicts and Sentence
After the close of evidence, on Quiroz’s motion under
section 1118.1, the trial court entered a judgment of acquittal on
count 2, sexual abuse of Gloria.
The jury found Quiroz guilty of misdemeanor elder or
dependent abuse of Rossana (§ 368, subd. (c)), a lesser offense to
that charged in count 1. The jury also found Quiroz guilty of
sexual battery on Rossana (count 3). The jury found Quiroz not
guilty of attempted sexual battery on Gloria (count 4).
In a bifurcated trial on the circumstances in aggravation,
the jury found true as to count 3 the allegations that Rossana
was particularly vulnerable and Quiroz took advantage of a
position of trust or confidence to commit the offense. The jury
found not true the other circumstances in aggravation alleged in
the second amended information (set forth above).
On count 3, sexual battery on Rossana, the trial court
sentenced Quiroz to the low term of two years in state prison. On
count 1, elder or dependent abuse of Rossana, the court imposed
12
a concurrent one-year term (365 days in county jail, to be served
in any penal institution).
DISCUSSION
I. Relevant Jury Instructions Given and Arguments of
Counsel to the Jury
Using CALCRIM No. 252 (Union of Act and Intent: General
and Specific Intent Together), the trial court instructed the jury
as follows:
“The crimes charged require proof of the union, or joint
operation, of act and wrongful intent.
“Sexual Abuse of an Elder or Dependent Adult and Sexual
Battery on an Elder or Dependent Adult require general criminal
intent. For you to find a person guilty of these crimes, that
person must not only commit the prohibited act, but must do so
with wrongful intent. 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 each crime.
“The following crime requires a specific intent or mental
state: Attempted Sexual Battery on an Elder or Dependent Adult
and Attempted Sexual Battery. For you to find a person guilty of
this crime, that person must not only intentionally commit the
prohibited act, but must do so with a specific intent. The act and
the specific intent or mental state required is explained in the
instruction for that crime.”
Quiroz contends, the Attorney General concedes, and we
agree the trial court erred in instructing the jury in CALCRIM
No. 252 that sexual battery under section 243.4 is a general
intent crime. “Sexual battery is a specific intent crime. It
13
consists of touching an intimate part of another, against the
victim’s will, committed for the purposes of sexual arousal,
gratification or abuse.” (People v. Chavez (2000) 84 Cal.App.4th
25, 29.) Although Quiroz did not object below, the claim is not
forfeited because his contention is that the instruction relieved
the prosecution of its burden to prove an element of the offense—
the specific intent element—beyond a reasonable doubt, a
contention we may consider for the first time on appeal. (See
People v. Nelson (2016) 1 Cal.5th 513, 543 [the “claim . . . is that
the instruction misstated the elements of the crime, an assertion
that may be considered on appeal despite the absence of an
objection below”], citing § 1259.)
The “ ‘ “characterization of a crime as one of specific intent
[or general intent] has little meaningful significance in
instructing a jury. The critical issue is the accurate description of
the state of mind required for the particular crime.” ’ ” (People v.
Rathert (2000) 24 Cal.4th 200, 205.)
Using CALCRIM No. 936, the trial court instructed the
jury as follows on the requisite elements of the sexual battery
offense:
“The defendant is charged in Count Three with Sexual
Battery on an Institutionalized Person, in violation of Penal Code
section[] 243.4(b).
“To prove that the defendant is guilty of this crime, the
People must prove that:
“1. While Rossana Y. was institutionalized for medical
treatment and was seriously disabled or medically incapacitated,
the defendant touched an intimate part of Rossana Y.;
“2. The touching was against Rossana Y.’s will;
“AND
14
“3. The touching was done for the specific purpose of
sexual arousal, sexual gratification, or sexual abuse.
“An intimate part is a female’s breast or the anus, groin,
sexual organ or buttocks of anyone.
“Contact must have been made with Rossana Y.’s bare skin.
This means that:
“1. The defendant must have touched the bare skin of
Rossana Y.’s intimate part;
“OR
“2. Rossana Y.’s bare skin must have touched the
defendant’s intimate part either directly or through his clothing.
“Someone is institutionalized if he or she is a patient in a
hospital, medical treatment facility, nursing home, acute care
facility, or mental hospital.
“Someone is seriously disabled if he or she has severe
physical or sensory disabilities.
“An act is done against the person’s will if that person does
not consent to the act. In order to consent, a person must act
freely and voluntarily and know the nature of the act.”
The trial court instructed the jury that the prosecution was
required to prove each element of an offense beyond a reasonable
doubt before the jury could find Quiroz guilty of that offense.
(See CALCRIM No. 220 [“A defendant in a criminal case is
presumed to be innocent. This presumption requires that the
People prove a defendant guilty beyond a reasonable doubt.
Whenever I tell you the People must prove something, I mean
they must prove it beyond a reasonable doubt”].) The court
emphasized this point during the jury’s deliberations, in response
to a question from the jury regarding a count not at issue in this
appeal (count 1), informing the jury in pertinent part: “The jury
15
instructions set forth the elements or parts of each charge. In
order to find the defendant guilty, the People must prove each
element (or part) of a charge beyond a reasonable doubt. If the
People do not, the defendant is entitled to an acquittal.”
During argument, the prosecutor told the jury it was the
prosecution’s burden to prove each element of each crime beyond
a reasonable doubt. The prosecutor reviewed with the jury the
requisite elements of sexual battery, including that when Quiroz
touched an intimate part of Rossana, “he did this for sexual
gratification, or sexual arousal, or sexual abuse.”
Quiroz contends the trial court’s error was prejudicial,
notwithstanding the prosecutor’s arguments and the trial court’s
instructions to the jurors that they could not find Quiroz guilty of
sexual battery unless the prosecution proved all elements of the
offense beyond a reasonable doubt, including the specific intent
element. For the reasons explained below, we disagree with
Quiroz’s contention of prejudicial error and agree with the
Attorney General that the error was harmless under any
standard.
II. Relevant Case Law Addressing Harmless Error
Standard
Several appellate courts have concluded that the type of
instructional error at issue here within CALCRIM No. 252—
instructing that a specific intent sex offense is a general intent
offense—is harmless where a later-given instruction correctly
expressed the elements of the offense, including the specific
intent element.
In People v. ZarateCastillo (2016) 244 Cal.App.4th 1161,
1165-1169 (ZarateCastillo), the Court of Appeal concluded the
trial court’s error in instructing the jury (with an instruction
16
materially identical to CALCRIM No. 252 given here) that sexual
penetration of a child 10 years old or younger and forcible sexual
penetration were general intent crimes was “harmless beyond a
reasonable doubt” (presumably referencing, without citing, the
harmless error standard set forth in Chapman v. California
(1967) 386 U.S. 18, 24 (Chapman)). The trial court in
ZarateCastillo correctly instructed the jury on the elements of the
offenses, including that the sexual penetration was “for the
purpose of sexual abuse, arousal or gratification.”
(ZarateCastillo, at p. 1167.) In explaining the reasons for its
conclusion of harmless error, the appellate court stated:
“[D]espite erroneously describing those [sexual penetration]
crimes as general intent crimes, the trial court went on to
instruct the jury that to be guilty of each of those crimes,
defendant must have committed the act of penetration for the
purpose of sexual abuse, arousal, or gratification. Thus, the trial
court actually instructed the jury on the specific intent required
for those crimes, despite failing to classify the crimes as specific
intent crimes earlier in its instructions. Moreover, there was
nothing in the general intent/specific intent portion of the trial
court’s instructions that suggested to the jurors that they were
not to follow the later portions of the instructions telling them the
specific intent–referred to in the instructions as ‘purpose’–that
was required to find sexual penetration. At most, the omission of
these offenses from the list of specific intent crimes implied to the
jury that those crimes did not require any additional, specific
intent and/or mental state, but the later instructions specific to
those crimes expressly described the ‘purpose’ of the act of
penetration required to commit the crimes, and there is simply no
reason to believe that the jury would have disregarded the
17
explicit direction of the later instructions because of, at best, a
mere implication arising from the earlier instructions. Nor is
there any basis for believing that the jury could have, under any
circumstances, rationally found that defendant penetrated the
victim’s vagina for any purpose other than sexual abuse, arousal,
or gratification. Under these circumstances, the trial court’s
instructional error was harmless beyond a reasonable doubt.”
(ZarateCastillo, supra, 244 Cal.App.4th at pp. 1168-1169.)
In People v. Ngo (2014) 225 Cal.App.4th 126, 146, 161-162
(Ngo), the trial court erroneously instructed the jury that sexual
penetration of a child under 10 is a general intent crime, using
CALCRIM No. 250 (Union of Act and Intent: General Intent),
which included the same language at issue here in CALCRIM No.
252 regarding “wrongful intent” (as quoted above). The trial
court also gave the jury an instruction “which defines sexual
penetration as doing so ‘for the purpose of sexual arousal,
gratification, or abuse,’ thereby setting forth the required specific
intent.” (Ngo, at p. 162.) “Thus, the trial court ultimately
instructed the jury that it must find defendant committed the
sexual penetration for the required purposes.” (Ibid.)
The Court of Appeal in Ngo did not decide which standard
of harmless error review applied to the error—the Chapman
harmless beyond a reasonable doubt standard; or the Boyde v.
California (1990) 494 U.S. 370, 380 standard, “whether there is a
reasonable likelihood that the jury has applied the challenged
instruction in a way” that violates the Constitution; or the People
v. Watson (1956) 46 Cal.2d 818, 836 standard, a reasonable
probability of a more favorable result in the absence of the error.
(Ngo, supra, 225 Cal.App.4th at pp. 162-163.) The appellate
court concluded that under any standard the error was harmless
18
because “the jury must have found beyond a reasonable doubt
that [the defendant] at least harbored the intent to commit the
actus reus of penetrating the victim,” and the “evidence supports
no plausible explanation for why the defendant would have
intentionally penetrated the victim unless he did so for purposes
of sexual arousal, gratification, or abuse.” (Id. at p. 163.)
Finally, in People v. Saavedra (2018) 24 Cal.App.5th 605,
612-614, (Saavedra), using CALCRIM No. 252, the trial court
erroneously instructed the jury that sexual penetration of a child
10 years of age or younger is a general intent crime. The court
also gave the jury an instruction (CALCRIM No. 1128) that
“correctly defined sexual penetration and informed jurors of the
requisite purpose”—penetration “for the purpose of sexual abuse,
arousal or gratification.” (Saavedra, at pp. 614, 615.) The Court
of Appeal did not decide which standard of harmless error review
applied to the error because the court concluded “the error was
harmless even under Chapman’s more stringent standard.” (Id.
at p. 615.) The appellate court explained:
“CALCRIM No. 1128 correctly set out the elements—
including the intent—required for the jury to convict defendant of
sexual penetration of a child 10 years of age or younger, as
charged in count 11. The language of the instruction covered
both the requisite intent per se and the requirement of a
concurrence of act and specific intent. The record on appeal—
which we have carefully reviewed—contains no evidence that
could rationally lead to a finding the act of penetration charged in
count 11 was committed for a purpose other than sexual arousal,
gratification, or abuse. Moreover, defendant did not contest the
element, but rather denied any culpability. Since no rational jury
could have found the specific intent element unproven, the error
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was harmless beyond a reasonable doubt.” (Saavedra, supra, 24
Cal.App.5th at pp. 615-616, fn. omitted.)
III. Harmless Error Analysis in This Case
As explained above, we agree with Quiroz, as does the
Attorney General, that the trial court erred in classifying sexual
battery as a general intent crime in the version of CALCRIM No.
252 given to the jury. But we disagree with Quiroz’s framing of
the scope of the error and its effect. We conclude the error was
harmless under any standard of harmless error review, and we
need not decide which standard applies here.
Quiroz contends the trial court’s instructional error
violated his right to due process under the Fourteenth
Amendment of the United States Constitution because it relieved
the prosecution of its burden to prove an element of the offense—
the specific intent element—beyond a reasonable doubt. Not so.
Nothing in the trial court’s instructions or the prosecutor’s
arguments indicated the jury could find Quiroz guilty of sexual
battery without first finding, among other things, that he touched
Rossana “for the specific purpose of sexual arousal, sexual
gratification, or sexual abuse.” (See CALCRIM No. 936; see also
ZarateCastillo, supra, 244 Cal.App.4th at p. 1168 [“there was
nothing in the general intent/specific intent portion of the trial
court’s instructions that suggested to the jurors that they were
not to follow the later portions of the instructions telling them the
specific intent–referred to in the instructions as ‘purpose’–that
was required to find sexual penetration”].) Rather, the trial court
and the prosecutor both made clear to the jury that this “specific
purpose” (i.e., specific intent) of the touching was a necessary
element of the offense that the prosecution was required to prove
beyond a reasonable doubt. The trial court emphasized this point
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in answering a jury question by stating: “The jury instructions
set forth the elements or parts of each charge. In order to find
the defendant guilty, the People must prove each element (or
part) of a charge beyond a reasonable doubt. If the People do not,
the defendant is entitled to an acquittal.” Thus, the classification
error of the offense in CALCRIM No. 252 did not allow the jury to
ignore any of the requisite elements of the offense set forth in
CALCRIM No. 936, including the specific intent element, and the
error was harmless beyond a reasonable doubt.
Even assuming the jury instructions, on their own, were
ambiguous as to the specific intent required for sexual battery—
an assumption we reject—we would still conclude the error was
harmless beyond a reasonable doubt based on the evidence and
arguments presented to the jury.
In arguing the error was prejudicial under the Chapman
standard, Quiroz asserts that ZarateCastillo, Ngo, and Saavedra
are distinguishable because, here, unlike in those cases, an
“innocent explanation[] of [his] conduct” was offered at trial—
that he touched Rossana not for the purpose of sexual arousal,
sexual gratification, or sexual abuse, but to clean her while
changing her diaper (peri-care)—and the evidence indicated
Rossana “was an unreliable historian” who “misinterpreted [his]
normal caregiving activities.” He further maintains, “a jury
required to find specific intent might have found the evidence of
it lacking and acquitted appellant of sexual battery depending on
which aspect of R[ossana]’s problematic testimony it believed or
rejected. On the other hand, it cannot be concluded beyond a
reasonable doubt that a jury ignoring the intent requirement
would not have convicted on identical factual findings.”
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Considering “the entire charge” given to the jury, as we
must (Saavedra, supra, 24 Cal.App.5th at p. 614), it is
inconceivable the jurors would have believed they could find
Quiroz guilty of sexual battery if they believed he was touching
Rossana for purposes of performing peri-care. Based on the
evidence and the arguments presented to the jury, either Quiroz
was discharging his duties and was guilty of no crime or he
touched Rossana for the purpose of sexual arousal, sexual
gratification, or sexual abuse. There was no scenario presented
to the jury under which Quiroz acted with the “wrongful intent”
required for a general intent crime (see CALCRIM No. 252) but
with something less than the specific intent required for sexual
battery. The error was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
WEINGART, J.
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