People v. Hamze CA1/5 ( 2024 )

Filed 9/25/24 P. v. Hamze CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A167442
v.
WALID SALAH HAMZE, (Alameda County
Defendant and Appellant. Super. Ct. No. 19CR007211)
A jury convicted Walid Salah Hamze of committing numerous sexual
offenses against six children under the age of 14 who were under his care.
On appeal, Hamze argues (1) the trial court erred by instructing the jury that
it could consider the charged sex offenses as propensity evidence; (2) the
prosecutor committed misconduct by suggesting a unanimous verdict was not
required; and (3) he should not have been charged with and convicted of
numerous lewd acts (Pen. Code, § 288, subd. (a))1—a general statute—instead
of the more specific offense of continuous sexual abuse of a child (§ 288.5).
We affirm.
1 All further undesignated statutory references are to the Penal Code.
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BACKGROUND2
Hamze has seven children—five daughters and two sons. Between
1997 and 2003, Hamze molested three of his daughters (Jane Doe 5,
Jane Doe 6, and Jane Doe 7) when they were young, as well as a family friend
(Jane Doe 4) who was the same age as his daughters.
In 2018, at his wife’s urging, another family came to live with Hamze
and his family. In April 2019, police began investigating claims that Hamze
had molested three young girls from the other family (Jane Doe 1,
Jane Doe 2, and Jane Doe 3). In the weeks following, police became aware of
Hamze’s past molestations of two of his adult daughters (Jane Doe 5 and
Jane Doe 6) and one of their friends (Jane Doe 4) when they were children.
On April 27, 2019, Hamze went to police and confessed to molesting his
daughter Jane Doe 5 years earlier. He expressed regret for his actions,
saying he had “taken the trust of a little child and I used it for my
pleasure . . . .” Hamze denied the other conduct he was accused of, except for
one incident with his daughter Jane Doe 6, which he claimed was an
accident.
Hamze was charged with one count of aggravated sexual assault of a
child under 14 years of age (§ 269, subd. (a)(5); first count [Jane Doe 1]) and
17 counts of lewd conduct with a child under 14 years of age (§ 288, subd. (a);
second–fourth counts [Jane Doe 1], fifth–seventh counts [Jane Doe 2],
eighth–tenth counts [Jane Doe 3], eleventh–thirteenth counts [Jane Doe 4],
fourteenth–sixteenth counts [Jane Doe 5], seventeenth count [Jane Doe 6],
eighteenth count [Jane Doe 7]).
2 Because Hamze’s appeal raises primarily legal issues, the factual
background is abbreviated.
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Six of the seven victims testified at trial; Jane Doe 5 refused to testify,
which prompted the People to dismiss the fourteenth, fifteenth, and sixteenth
counts.
Hamze testified at trial that he was heavily sleep-deprived during his
police interview. He admitted to molesting his daughter Jane Doe 5 and
having had feelings of sexual attraction toward her. Hamze denied all other
allegations against him.
The jury convicted Hamze of one count of aggravated sexual assault of
a child under the age of 14 (§ 269, subd. (a)(5); first count) and 14 counts of
lewd conduct with a child under the age of 14 (§ 288, subd. (a); second–
thirteenth, seventeenth–eighteenth counts).
DISCUSSION
I. CALCRIM No. 1191B
Hamze argues the trial court erred by instructing the jury that it could
“rely on evidence of one charged offense to infer” he “had a propensity for
sexual offenses and likely committed the other charged offenses,” which
“violated state and federal law.” (Capitalization omitted.) Hamze’s argument
is without merit.
The trial court instructed the jury with CALCRIM No. 1191B, which
provides that if the People have proved at least one of the charged sex
offenses beyond a reasonable doubt, “you may, but are not required to,
conclude from that evidence that the Defendant was disposed or inclined to
commit sexual offenses, and based on that decision, also conclude that the
Defendant was likely to commit and did commit” any or all of the remaining
counts. The instruction clarifies, “It is not sufficient by itself to prove that
the Defendant is guilty of another crime. The People must still prove each
charge and allegation beyond a reasonable doubt.” The jury was also given
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CALCRIM No. 3515, instructing that “[e]ach of the counts charged in this
case is a separate crime. You must consider each count separately and
return a separate verdict for each one.”
In his opening brief, Hamze acknowledges that in People v. Villatoro
(2012) 54 Cal.4th 1152 (Villatoro), the California Supreme Court held an
instruction similar to the one at issue here did not violate the defendant’s due
process rights or impermissibly lower the standard of proof. (Id. at pp. 1167–
1168.) Nevertheless, while acknowledging the concept of stare decisis,
Hamze argues Villatoro was wrongly decided and should not be followed. We
decline Hamze’s invitation to reject Villatoro. Instead, we join the other
appellate decisions following Villatoro and conclude the trial court properly
instructed the jury with CALCRIM No. 1191B. (See People v. Meneses (2019)
41 Cal.App.5th 63, 67–68; People v. Phea (2018) 29 Cal.App.5th 583, 608–609;
see also People v. Miramontes (2010) 189 Cal.App.4th 1085, 1103–1104
[substantive challenge to CALCRIM No. 1191 rejected based on People v.
Reliford (2003) 29 Cal.4th 1007, 1012–1016].)
Nor are we persuaded by Hamze’s claim that Villatoro’s rationale has
proved “unworkable and unfair in practice . . . .” People v. Daveggio and
Michaud (2018) 4 Cal.5th 790 (Daveggio and Michaud) does nothing to
further Hamze’s position. There, two defendants moved unsuccessfully to
have certain sex offenses tried separately from a murder charge. (Id. at p.
829.) The court, citing Villatoro, explained that “evidence of charged sex
offenses, like evidence of uncharged sex offenses, may give rise to an
inference of propensity to commit similar crimes, but the trial court’s decision
to permit the jury to consider the evidence for that purpose is properly guided
by [an Evidence Code] section 352 weighing analysis.” (Daveggio and
Michaud, at p. 829.) The court rejected the defendants’ claim that the trial
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court failed to conduct an Evidence Code section 352 analysis before
permitting the jury to consider the charged counts as propensity evidence.
(Ibid.) Rather, the trial court exercised its discretion under Evidence Code
section 352 in resolving the defendants’ motion to bifurcate. (Ibid.)
Here, Hamze does not directly assert that the court failed to conduct an
Evidence Code section 352 analysis before instructing the jury. Nevertheless,
before the court admitted evidence of uncharged prior acts, the court
conducted a thorough Evidence Code section 352 analysis. The court
indicated it “w[ould] not admit any 1108 evidence without carefully analyzing
the evidence under Ewoldt, Falsetta, and Evidence Code Section 352.
[¶] That requires consideration of the following factors: The evidence’s
nature, relevance, and possible remoteness; the degree of certainty the
offense was committed; the likelihood of confusing, misleading, or distracting
the jurors from their main inquiry; the similarity to the charged offense; the
likely prejudicial impact on the jurors; the burden on Mr. Hamze and
defending against the uncharged offense; and the availability of less
prejudicial alternatives to the outright admission such as admitting some,
but not all, of the other alleged offenses or excluding irrelevant, though,
imflammatory [sic] details surrounding the offense.” Then, “having
considered and weighed the factors . . . outlined for each of the uncharged
acts . . . as well as the charged acts . . . , the Court f[ound] that each of those
acts [we]re·admissible as to each count charged . . . .”
Based on the in-depth analysis of the Evidence Code section 1108
evidence, we infer the court implicitly conducted an Evidence Code section
352 analysis regarding the charged acts before giving the CALCRIM No.
1191B instruction. (Villatoro, supra, 54 Cal.4th at p. 1168 [rejecting similar
claim]; Daveggio and Michaud, supra, 4 Cal.5th at p. 829 [same].)
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Accordingly, we reject Hamze’s claim of instructional error.
II. Prosecutorial Error
Hamze next contends the prosecutor committed misconduct by giving
an incorrect explanation of the unanimity requirement set forth in CALCRIM
No. 3501. As such, he argues his convictions on the second–tenth counts
must be reversed due to the misstatement of the constitutional requirement
of a unanimous verdict in violation of his state and federal due process rights
to a fair trial. The People argue the prosecutor’s statements were consistent
with the law and, in any event, any error was harmless. We conclude any
misstatement by the prosecutor was harmless error not resulting in
prosecutorial misconduct.
A criminal defendant’s right to a jury trial includes the right to a
unanimous agreement, including unanimous agreement on the act
constituting the offense charged. (Cal. Const., art. I, § 16; People v. Russo
(2001) 25 Cal.4th 1124, 1132.) In any case in which the evidence would
permit jurors to find the defendant guilty of a crime based on two or more
discrete acts, either the prosecutor must elect among the crimes or the court
must require the jury to agree on the same criminal act. (People v. Russo, at
p. 1132.) This unanimity requirement “ ‘is intended to eliminate the danger
that the defendant will be convicted even though there is no single offense
which all the jurors agree the defendant committed.’ [Citation.]” (Ibid.)
Historically, child molestation cases have presented difficult issues
regarding how properly to instruct a jury on the constitutional requirement of
a unanimous verdict. This is especially true when a child testifies to a
number of similar but undifferentiated acts of molestation during a
particular time period, e.g., “an act of intercourse ‘once a month for three
years . . . .’ ” (People v. Jones (1990) 51 Cal.3d 294, 314 (Jones).) To
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safeguard the constitutional requirement of unanimity, our Supreme Court
directed, “In a case in which the evidence indicates the jurors might disagree
as to the particular act defendant committed, the standard unanimity
instruction should be given. [Citation.] But when there is no reasonable
likelihood of juror disagreement as to particular acts, and the only question is
whether or not the defendant in fact committed all of them, the jury should
be given a modified unanimity instruction which, in addition to allowing a
conviction if the jurors unanimously agree on specific acts, also allows a
conviction if the jury unanimously agrees the defendant committed all the
acts described by the victim. [¶] . . . [B]ecause credibility is usually the ‘true
issue’ in these cases, ‘the jury either will believe the child’s testimony that
the consistent, repetitive pattern of acts occurred or disbelieve it. In either
event, a defendant will have his unanimous jury verdict [citation] and the
prosecution will have proven beyond a reasonable doubt that the defendant
committed a specific act, for if the jury believes the defendant committed all
the acts it necessarily believes he committed each specific act [citations].’ ”
(Id. at pp. 321–322.)
In light of the Jones decision, the Judicial Council adopted CALCRIM
No. 3501, which was given in this case as follows: “The Defendant is charged
in Counts 2, 3, 4, 5, 6, 7, 8, 9, and 10 with violations of Penal Code § 288(a)
sometime during the following periods: [¶] [second–fourth counts, June 1,
2018–April 13, 2019; fifth–seventh counts, September 1, 2018–April 13, 2019;
eighth–tenth counts, January 1, 2019–April 13, 2019.] [¶] The People have
presented evidence of more than one act to prove that the Defendant
committed these offenses. You must not find the Defendant guilty unless:
[¶] 1. You all agree that the People have proved that the Defendant
committed at least one of these acts and you all agree on which act he
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committed for each offense; OR [¶] 2. You all agree that the People have
proved that the Defendant committed all the acts alleged to have occurred
during this time period and have proved that the Defendant committed at
least the number of offenses charged.”
“CALCRIM No. 3501 affords two different approaches for the jury to
reach the required unanimity. The first is . . . [an] agreement as to the acts
constituting each offense. But unanimity may also be found under CALCRIM
No. 3501 if the jury agrees ‘that the People have proved that the defendant
committed all the acts alleged to have occurred during this time period [and
have proved that the defendant committed at least the number of offenses
charged].’ ” (People v. Fernandez (2013) 216 Cal.App.4th 540, 556,
1st bracketed insertion added.)
Here, during closing argument, the prosecutor explained, “For all of
you, you have to come back with an [sic] unanimous verdict.· Sometimes you
can disagree on a theory and how you get there.· And I’ll mention when that
can happen. [¶] But the 12 of you have to be unanimous in your verdict that I
proved beyond a reasonable doubt each of the charged allegations, okay?·
However, you can get there in different ways.· And so this instruction starts
by saying, I have presented evidence of more than one act to prove that the
defendant committed these offenses. . . . [¶] You cannot find the defendant
guilty unless (1) the defendant committed at least one of these acts and you
all agree on which act he committed for each offense; or (2) the defendant
committed all of the acts alleged to have occurred during this time period,
and the People have proved that the defendant committed at least the
number of offenses charged.”
While discussing the second count, the prosecutor said that six of the
jurors could find that Hamze touched Jane Doe 1 in a discrete way and six of
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the jurors could believe Hamze committed all of the acts against Jane Doe 1
during the relevant time period. The prosecutor then gave equivalent
explanations for the third–tenth counts.
Hamze argues the prosecutor’s description of the unanimity
requirement misstated the law. Hamze contends that although CALCRIM
No. 3501 provides “two different paths for jurors to reach unanimity, the
instruction makes clear the jurors must be unanimous as to the path they
choose.” Hamze insists “the prosecutor told jurors that they could reach a
unanimous verdict if six jurors found the state proved the case under
paragraph one of CALCRIM [No.] 3501 while another six found proof under
paragraph two.”
To be sure, the prosecutor’s argument was not a model of clarity.
Although she began with a correct statement of the law, she faltered to the
extent her comments suggested a unanimous verdict could be predicated on
something less than 12 jurors in agreement. While the prosecutor’s
statement may have misstated the law if viewed in isolation, we conclude
there was no prosecutorial error because in the context of the entire
argument and jury instructions it was not reasonably likely the jury
understood or applied the statement in an improper or erroneous manner.
(People v. Cortez (2016) 63 Cal.4th 101, 130–131 (Cortez).)
To find prosecutorial error, we must view the challenged statement in
the context of the entire argument and the jury instructions to determine
whether there was a reasonable likelihood the jury understood or applied the
comments in an improper or erroneous manner. (Cortez, supra, 63 Cal.4th at
pp. 130–131.) “ ‘[W]e “do not lightly infer” that the jury drew the most
damaging rather than the least damaging meaning from the prosecutor’s
statements.’ ” (People v. Covarrubias (2016) 1 Cal.5th 838, 894.)
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In determining whether the prosecutor committed error, it is
significant that the trial court correctly instructed the jury with CALCRIM
No. 3501 regarding the necessity of a unanimous verdict. (See Cortez, supra,63 Cal.4th at p. 131.) To the extent the prosecutor’s statements were
inconsistent with the instructions, the jury was instructed to follow the
latter. The trial court instructed the jury with CALCRIM No. 200, stating in
part: “You must follow the law as I explain it to you, even if you disagree
with it. If you believe that the attorneys’ comments on the law conflict with
my instructions, you must follow my instructions.”
We presume the jury followed the court’s instructions, rather than any
conflicting comments by counsel, in reaching a verdict. (Cortez, supra,
63 Cal.4th at p. 131; People v. Prince (2007) 40 Cal.4th 1179, 1295; People v.
Morales (2001) 25 Cal.4th 34, 47.) “ ‘[J]uries generally understand that
counsel’s assertions are the “statements of advocates.” ’ ” (Cortez, supra,63 Cal.4th at p. 131.)
Considered “ ‘[i]n the context of the whole argument and the [jury]
instructions’ ” (People v. Centeno (2014) 60 Cal.4th 659, 667), the jury in this
case was not reasonably likely to understand the prosecutor’s comments as
diminishing the need for a unanimous verdict by all 12 jurors. We therefore
conclude there was no prosecutorial error.
Because we conclude there was no prosecutorial error, Hamze’s
argument his trial counsel was ineffective by failing to object to the
prosecutor’s statements challenged on appeal is without merit.
III. Section 288.5 Does Not Bar Charges or Convictions of Individual
Counts Under Section 288, Subdivision (a)
Finally, Hamze argues nine of his section 288, subdivision (a)
convictions should be reversed: three against Jane Doe 1 (second–fourth
counts), three against Jane Doe 2 (fifth–seventh counts), and three against
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Jane Doe 3 (eighth–tenth counts). He argues that prosecution under section
288, subdivision (a) (lewd acts) is precluded by section 228.5 (resident child
molester) because it is a more specific statute covering the same acts as
section 288, subdivision (a)—and, as such, he could only be convicted of one
count of continuous sexual abuse under section 288.5 per victim. Hamze
acknowledges several courts have rejected various variations of this
argument. (See People v. Torres (2002) 102 Cal.App.4th 1053, 1056–1061
(Torres); People v. Alvarez (2002) 100 Cal.App.4th 1170, 1177–1178 (Alvarez);
People v. Johnson (1995) 40 Cal.App.4th 24, 26 (Johnson); People v. Hord
(1993) 15 Cal.App.4th 711, 716–721 (Hord); People v. Wilkerson (1992) 6
Cal.App.4th 1571, 1581 (Wilkerson).)
Commonly referred to as the Williamson rule, prosecution under a
general criminal statute may be precluded when a more specific prohibition
applies. (See In re Williamson (1954) 43 Cal.2d 651, 654; People v. Gilbert
(1969) 1 Cal.3d 475, 479–480.) But Hord explains that “sections 288.5 and
288 are not subject to the Williamson rule.” (Hord, supra, 15 Cal.App.4th at
p. 720.) “ ‘The doctrine that a specific statute precludes any prosecution
under a general statute is a rule designed to ascertain and carry out
legislative intent.’ [Citation.] The Legislature’s intent in passing section
288.5 was not to enact a specific statute to apply in lieu of a general statute.
The intent was to enact a statute for an area which the Legislature believed
was not covered by any other law. That this statute’s necessity was nullified
by the Jones decision does not transform this statute into a specific statute
under the Williamson rule since this was clearly not the Legislature’s intent
at the time of the enactment.” (Hord, at p. 720.)
Hord, supra, 15 Cal.App.4th at pages 718–719, explained that the
Legislature enacted section 288.5 in response to People v. Van Hoek (1988)
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200 Cal.App.3d 811 (Van Hoek), in which the appellate court reversed seven
counts of molestation by a father against his daughter on the grounds that
her “generic and amorphous testimony” did not support the charges against
him because it impaired his ability to present a defense. (Van Hoek, at pp.
814, 818.) Disapproving Van Hoek and its progeny, Jones, supra, held that
“generic testimony” may constitute substantial evidence of sexual offenses (51
Cal.3d at pp. 313–316) and that such “generic testimony [does not] deprive[]
the defendant of a due process right to defend against the charges against
him” (id. at pp. 320–321).
Hamze argues Hord “misses the mark entirely” and “should not be
followed.” We disagree and find it to be well reasoned. Our conclusion finds
support in several decisions in which courts facing similar issues have
reached the same conclusion as Hord. In Wilkerson, for example, the court
explained, “Section 288.5 provides a vehicle for prosecuting resident child
molesters if specific acts of sexual abuse at a particular time cannot be
proven. [Citations.] It is not, nor was it intended to be, a limit on
prosecutorial discretion in determining how a particular defendant is to be
charged.” (Wilkerson, supra, 6 Cal.App.4th at p. 1581.) Similarly, Johnson
added that the People “are not required to prosecute under section 288.5 in
order to gain a conviction against a resident child molester even when the
evidence is based on ‘generic testimony,’ ” provided the generic testimony
meets the requirements established in Jones. (Johnson, supra, 40
Cal.App.4th at p. 26.)
Observing that section 288.5’s purpose was to provide additional
protection for children, in Torres, our colleagues in Division One of this
judicial district held the statute did not preclude prosecutors from charging a
defendant with individual child sex crimes in the alternative. (Torres, supra,12
102 Cal.App.4th at p. 1059.) Torres expressly rejected the defendant’s
“specific over general” argument. (Id. at p. 1058.) Torres explained that
section 288.5’s requirement that offenses under that statute must be charged
in the alternative to individual sex crimes “gives the prosecutor maximum
flexibility to allege and prove not only a continuous sexual abuse count, but
also specific felony offenses commensurate with the defendant’s culpability,
subject only to the limitation that the defendant may not be convicted of both
continuous sexual abuse and specific felony sex offenses committed in the
same period.” (Id. at p. 1059.) In reaching this conclusion, Torres relied, in
part, on Alvarez, which held, “It would be anomalous if section 288.5, adopted
to prevent child molesters from evading conviction, could be used by those
molesters to circumvent multiple convictions with more severe penalties and
prior-strike consequences than available for a conviction under section
288.5.” (Alvarez, supra, 100 Cal.App.4th at pp. 1177–1178; Torres, at p.
1060.)
Consistently with this principle, the court in People v. Bautista (2005)
129 Cal.App.4th 1431, affirmed the defendant’s conviction under section
288.5 while vacating those for individual sex abuse counts because the longer
sentence under the former was “more commensurate with [his] culpability”
and “proportionate to the egregious criminal conduct in which [he] engaged.”
(Bautista, at pp. 1437–1438.)
“Prosecutors in sexual abuse cases possess a variety of means to seek
convictions and severe punishments in cases involving sexual offenses
against vulnerable young victims.” (People v. Johnson (2002) 28 Cal.4th 240,
248.) While one option is to bring a charge of continuous sexual abuse
against a given victim, another is to “plead and prove discrete sexual offenses
and seek consecutive sentencing when permitted.” (Ibid.) As discussed, the
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prosecution opted for the latter option, which was a valid and permissible
decision.
Accordingly, we conclude the nine challenged section 288,
subdivision (a) convictions must stand.
DISPOSITION
The judgment is affirmed.
Jackson, P. J.
WE CONCUR:
Simons, J.
Chou, J.
A167442/People v. Walid Salah Hamze
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