People v. Fontes CA1/3

Filed 9/30/21 P. v. Fontes CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
A159406
Plaintiff and Respondent, A162101
v.
PETERSON WILLIAM FONTES, (Napa County
Super. Ct. No. 19CR001470)
Defendant and Appellant.
As a result of cutting holes into porta-potty units and then using
those holes to touch the genital openings of female victims who were
urinating, defendant Peterson William Fontes was convicted by a jury
of forcible sexual penetration by a foreign object (Pen. Code 1 § 289,
subd. (a)(1)(a)) (two counts), second-degree burglary (§ 459), and
vandalism (§ 594, subd. (b)(1)). He was sentenced to an aggregate term
of 16 years and eight months.
On appeal, defendant seeks reversal of only the sexual
penetration convictions on the basis of insufficient evidence (case No.
1 All further undesignated statutory references are to the Penal
Code.
1
A159406). Alternatively, he seeks a new trial based on erroneous
admission of evidence, the prosecutor’s closing statements, jury
instructions, and ineffective assistance of trial counsel. Defendant also
contends he is entitled to an additional presentence credit. We remand
for the trial court to award an additional two days of presentence credit
and otherwise affirm the judgment.
Defendant also appeals (case No. A162101) from an order which,
in pertinent part, awards Jane Doe 1 restitution in the sum of
$4,259.60 plus ten percent interest per annum from the date of
sentencing. Defendant challenges this award on the basis that the
victim’s chiropractic treatment expenses were not shown to be a direct
result of his criminal conduct, and that certain transportation and hotel
costs were not shown to be closely related to categories of recoverable
economic losses. We affirm.
By our order filed August 23, 2021, the appeals have been
consolidated for oral argument and decision.
FACTUAL AND PROCEDURAL BACKGROUND
The sexual penetration charges arose from two separate incidents
at outdoor festivals in 2019 – one in Napa County (Jane Doe 1) and the
other in Alameda County (Jane Doe 2). The prosecution’s theory was
that on each occasion defendant cut holes in the walls of adjacent porta-
potty units, surreptitiously watched through the holes as Jane Doe 1
and Jane Doe 2 urinated, and reached through the holes and
penetrated their genital openings with his fingers.
1. May 12, 2019 Incident (Jane Doe 2)
On May 12, 2019, Jane Doe 2 was working at a festival in
Alameda County. That afternoon she left her booth to use one of three
2
porta-potty units, specifically the larger handicapped unit. She pulled
down her pants and underwear and squatted above the toilet with her
hands on her knees. She felt something touching her posterior and at
first thought it was her shirt, but then realized it was a hand. She
looked between her legs and saw a pale, white hand that looked male.
“[T]he hand was pretty much in [her] vagina like touching [her],
grabbing [her].” She felt fingers on her labia. At the time the fingers
were grabbing between “[her] vaginal lips,” “[i]t was definitely
discomforting. It was . . . a lot of pressure.” The hand was
“[s]queezing” and the fingers were “wiggly.” She “freaked out,” could
not believe there was a hand, felt scared, and did not feel like she could
move – she felt like she “got stuck.” She screamed, jumped up, “peed
all over” herself, pulled up her underwear, and got out of the bathroom.
She felt “scared,” “[c]onfused,” “[n]ervous,” and “[e]mbarrassed.” After
she screamed, the hand disappeared “back into the hole it came from.”
She was “rattled,” felt “a tightness in [her] chest,” and her “head
started hurting.” The touching lasted “three seconds.” The incident
lasted “no more than 20 seconds” from the time she pulled down her
pants to when she pulled them up. Once outside, Jane Doe 2 did not
see anyone running but the people outside told her that they had seen
someone run behind the porta-potty unit and down the street.
Mark Gerhard, who was standing in line to use a porta-potty
unit, heard Jane Doe 2 screaming when she was inside. She exited and
said, “there was a hand.” Gerhard saw a man exit the adjacent porta-
potty unit and run away in a hurry; Gerhard did not see the man’s face
but described him as “[W]hite, Asian, or Hispanic,” and having very
short hair, a slight to medium build, and wearing a black shirt.
3
Gerhard was not asked to identify defendant as the man he saw fleeing
the area. Gerhard pursued the man but was unable to find him. When
Gerhard returned to the porta-potty unit area he saw Jane Doe 2
“crying [and] shaking;” he called 911 and stayed with her until the
police arrived.
Alameda Police Officer Eric McKinley met with Jane Doe 2 at the
police station one block from the festival. Visibly shaken, voice
unsteady, and eyes puffy and watery as if she had been crying, Jane
Doe 2 explained that a hand touched her genitalia as she was urinating
in a porta-potty unit. She initially estimated she was touched for three
seconds, but then said it was two seconds.
Officer McKinley walked to the festival and photographed the
damaged porta-potty unit used by Jane Doe 2 and the damaged
adjacent porta-potty unit; the units were “set up against each other,”
with a small gap of approximately three or four inches between the
units; and the jury was shown photographs of the damaged units.
There was a small four-side rectangular hole (six inches by five inches)
in the wall of the unit used by Jane Doe 2, and there was also a small
third-sided hole cut to operate as a flap in the wall of the adjacent
porta-potty unit. The holes in the units “were in line horizontally, but
vertically they were askew.” However, the officer was able to see
between the units when the flap was moved to reveal the hole in the
porta-potty unit adjacent to the unit used by Jane Doe 2. The holes
appeared to have been cut by hand with a sharp object and were
approximately one and one-half feet above the ground.
4
2. May 25, 2019 Incident (Jane Doe 1)
On May 25, 2019, Jane Doe 1 attended a festival in Napa County.
That evening, she entered the fifth porta-potty unit on the left bank of
handicap units. Because the unit was dark, she turned on her cell
phone light. She held her phone in her mouth, pulled down her
underwear, hiked up her dress, squatted above the toilet seat, and
started to urinate. “[M]aybe two seconds” later, she saw that her
stream of urine “started to just spray everywhere.” She looked down
and felt something “tap” or “poke[] her vagina.” The first poke was on
her perineum. She looked more closely and saw a hand facing palm up
with the index finger and thumb pointed up and the remaining fingers
curled into the palm. The hand was clean, well-groomed, and belonged
to a white man. Jane Doe 1 felt a second tap on her perineum and then
a finger was asserted into her vagina; she was able to describe the
manner of insertion. She quickly tried to grab the hand but could not
do so. Approximately seven seconds elapsed between when she felt her
urine spray and when she tried to grab the hand. She yelled and exited
the unit while urinating; she yelled again for help and said someone
stuck his finger in her vagina.
Jane Doe 1 saw two security guards, but they were “dismissive”
of her complaint. She showed the security guards the area behind the
porta-potty units, which at approximately two feet wide was sufficient
for someone to shimmy behind the units. She then showed one of the
security guards the hole in the porta-potty unit she had used and the
hole in the adjacent unit. Similar to the holes cut at the Alameda
County fair, Jane Doe 1 described the hole in her unit as rectangular,
approximately six by eight inches, with straight edges that were
5
“meticulously cut,” and approximately one and a half feet above the
ground, while the hole in the adjacent unit was similar but cut only on
three sides so that it operated as a flap.
Jane Doe 1 also spoke with the festival site operations
coordinator, Michael Marzulli, who testified concerning the layout of
the festival, including the porta-potty units. Marzulli confirmed that
between the fence (enclosing the festival grounds) and the porta-potty
units there was a space wide enough for him to sidestep along the rear
of the porta-potty units. After speaking with Jane Doe 1, Marzulli
pulled back the fence line, walked to the rear of the porta-potty units,
and saw that someone had cut a hole in four units. After further
investigation, festival employees discovered four additional porta-potty
units had been cut with holes, for a total of eight units.
Jane Doe 1 called 911 and Detective Brandt Keown responded to
the call at the festival. Keown and Jane Doe 1 went to the police
station, where they spoke for approximately one and one-half to two
hours; he testified she was angry and frustrated as well as frightened.
She described the incident as “one touching” and as a “poke.” After
speaking with the officer, Jane Doe 1 was examined by nurse
practitioner Kari Cordero who photographed abrasions in her genital
area. Jane Doe 1 had a burning sensation in her vagina after the
incident that lasted two days. Also, in attempting to grab the man’s
hand she strained her lower back and subsequently received
chiropractic treatment for the pain. She saw a therapist every week for
post-traumatic stress disorder and depression. Cordero testified that
she found multiple abrasions in Jane Doe 1’s perineum, which
6
indicated blunt force trauma. The physical examination was consistent
with Jane Doe 1’s report of the assault.
3. Police Investigation
Following the May 25 assault on Jane Doe 1, the next day (May
26), festival manager Marzulli arranged for the damaged porta-potty
units to be repaired and patches were put over the holes. At
approximately 9:00 p.m. Marzulli saw defendant slide out from behind
the porta-potty area where Jane Doe 1 had been assaulted and exit
through a break in the fence. Marzulli grabbed defendant by the arm,
and asked him, “[w]hat are you doing back here?” Defendant said he
was urinating. Marzulli noticed defendant did not have an admission
wrist band for the festival. Defendant got aggressive and tried to leave,
but Marzulli detained him.
Defendant was transported to the Napa police department where
he met with Detective Keown. A photograph of defendant was taken,
and his hands were examined – they had some recent scratches and
small cuts, but were otherwise well-cared for and clean. Defendant was
described as five feet four inches tall and approximately 150 pounds.
Keown later went to defendant’s apartment, where he found a double-
edged wallboard saw (serrated blade with teeth on both sides) and a
flyer for a festival in Kern County.
When the police detained defendant, he was found holding a
Samsung Galaxy cell phone in his left hand. The police also recovered
a key fob for a Lincoln vehicle that was later located and visible in the
center console was an Apple iPhone. The police took custody of both
cell phones. Dustin Dodd, an expert in cell phone and forensic analysis,
testified he had prepared a report concerning the videos and digital
7
photographs found on the phones. One cell phone’s history included
internet searches concerning the Alameda and Napa festivals, while
the other cell phone had several fliers for the Napa festival. One cell
phone also contained videos and digital photographs. The videos
included women urinating with their genital areas exposed inside
porta-potty units and a woman “orally copulating a male in a porta-
potty” unit at the very end of which defendant “turns the phone around
to stop the video and is captured briefly by the camera as he turns the
phone around.” The digital photographs included images of women
urinating and a selfie photograph of defendant inside a porta-potty
unit; all the media appeared to have been taken at the Napa and
Alameda festival grounds between May 11 and May 25, 2019.
4. Defendant’s Prior Uncharged Offense in Brazil
The prosecution also presented the testimony of Leonardo Silva,
“Chief of Police” of one of the over 30 police stations in Brasilia, Brazil.
As Chief of Police, Silva managed the local police force and also had
some “judicial powers” including “indicting suspects” and “conducting
interrogations.”
On October 14, 2018, Silva questioned defendant concerning his
conduct at an event in a city park. Defendant admitted he had
damaged temporary portable “chemical toilets” (the “same” as porta-
potty units), which were specifically designated for female use.
Defendant said he was motivated to drill holes in the toilets after he
had watched a video about watching women using toilets. When asked
if his objective was to “satisfy his lewdness,” defendant “confirmed” that
his objective was “to satisfy his sexual desires.” However, defendant
denied being able to see any women inside the toilets even though he
8
had damaged six toilets and watched for 30 to 40 minutes. Defendant
repeatedly said he was deeply ashamed and that it was the first time
he had tried to view women urinating in portable units.
5. Defense Case
Defendant did not testify or present any witnesses.
In closing, defense counsel argued defendant was not the man
who sexually assaulted the two women, noting that no one identified
defendant as the assailant and his hands did not match the
descriptions given by the women. Alternatively, counsel argued the
assailant’s sexual penetrations were not accomplished with sufficient
force to overcome the will of the victims, noting the brevity of
penetrations and the lack of visible physical injuries suffered by the
victims.
DISCUSSION
CASE NO. A159406
I. There Was Sufficient Evidence to Support Convictions for
Forcible Sexual Penetration by Means of Force or Fear
Defendant contends his convictions for forcible sexual penetration
must be reversed for insufficient evidence. We disagree.
A conviction for violating section 289, commonly referred to as
forcible sexual penetration, requires the prosecution to prove several
elements: defendant committed an act of penetration for the purpose of
sexual gratification, arousal, or abuse; the act was committed by using
a foreign object; the other person did not consent; and the penetration
was accomplished by the coercive means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury to the other
person. (§ 289, subd. (a)(1)(A); italics added.)
9
Defendant’s sole substantive argument is that there was
insufficient proof that he accomplished the sexual penetrations by
means of force.2 According to defendant, the evidence did not show
coercive force because the digital penetrations were accomplished by
“stealth or trick” or “furtiveness and subterfuge” in that he hid himself
and touched the victims when they had voluntarily exposed their
genitals and were in a vulnerable position. This argument is without
merit.
We review the record for “substantial evidence” by examining
“the entire record” and “draw[ing] all reasonable inferences in favor of
the judgment to determine whether there is reasonable and credible
evidence from which a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt. [Citation.] Although circumstances
might also reasonably be reconciled with a contrary finding, it does not
warrant reversal of the judgment and . . . [the] verdict will not be set
aside unless the record clearly shows that there is not sufficient
evidence based upon any hypothesis whatsoever. [Citation.]” (People v.
Thomas (2017) 15 Cal.App.5th 1063, 1071 (Thomas.) “The same
standard also applies in cases in which the prosecution relies primarily
on circumstantial evidence.” (People v. Young (2005) 34 Cal.4th 1149,
1175.)
2 While the jury was also asked to consider the other coercive
means of violence, duress, menace, or fear of immediate and unlawful
bodily injury, defendant presents no substantive argument challenging
the sufficiency of the evidence as to those components. Rather, he
merely argues, in a conclusory fashion, that the evidence is not
sufficient to support violence, duress, menace or fear of immediate and
unlawful bodily injury. Defendant explains his limited argument by
asserting, “[a]s is apparent from the record, this case was prosecuted as
one based on force.”
10
We initially reject defendant’s argument that the convictions
cannot be sustained because there was no “additional physical act
constituting force beyond the mere sexual act itself,” as he simply
“inserted his fingers on and into the outer genitalia of these women,”
thereby accomplishing the act without having to overcome their will.
However, defendant’s argument too narrowly defines the element of
“force” within the meaning of section 289.
Section 289 “ ‘primarily guards the integrity of a woman’s will
and the privacy of her sexuality from an act of [penetration]
undertaken without her consent. Because the fundamental wrong is
the violation of a woman’s will and sexuality, the law. . . does not
require that “force” cause physical harm. Rather, in this scenario,
“force” plays merely a supporting evidentiary role, as necessary only to
insure an act of [penetration] has been undertaken against a victim’s
will.’ ” (People v. Griffin (2004) 33 Cal.4th 1015, 1025 (Griffin)
[discussing the law of rape], citing People v. Cicero (1984) 157
Cal.App.3d 465, 475 (Cicero), disapproved on other grounds in People v.
Soto (2011) 51 Cal.4th 229, 248.) “ ‘Force’ includes circumstances
where the victim did not want to engage in the act and the evidence
does not otherwise establish the victim’s positive cooperation in act or
attitude.” (Thomas, supra, 15 Cal.App.5th at p. 1071, citing People v.
Young (1987) 190 Cal.App.3d 248, 258.) Our Supreme Court has
explicitly rejected the suggestion that the necessary force “actually
means force ‘substantially different from or substantially greater than’
the physical force normally inherent in an act of consensual sexual
[penetration]. (Cicero, supra, 157, Cal.App.3d at p. 474, italics added).”
(Griffin, supra, at p. 1023.) Instead, the Supreme Court has made it
11
quite clear that “ ‘ “ ‘[t]he kind of physical force is immaterial; . . . it may
consist in the taking of indecent liberties with a woman . . . .’ ” ’ ”
(Griffin, supra, at p. 1024, first italics added by Griffin court, second
italics added.)
Given the broad definitions used to describe the “force” necessary
to satisfy that element within the meaning of section 289, we reject
defendant’s argument that the evidence was insufficient. The record
undisputedly shows that the victims did not want to be penetrated and
there is zero evidence establishing the victims’ “positive” cooperation or
attitude. (Thomas, supra, 15 Cal.App.5th at p. 1072.) Although lack of
consent and force are separate elements that must each be proven (In
re Jose P. (2005) 131 Cal.App.4th 110, 116), the same evidence is often
relevant to establish lack of consent and force, which elements are both
directly linked to the overbearing of the victim’s will. (People v. Maury
(2003) 30 Cal.4th 342, 403; see People v. Iniguez (1994) 7 Cal.4th 847,
856 (Iniguez).)
Moreover, even if the evidence were insufficient to show “force”
within the meaning of section 289, the jury could have found defendant
accomplished the penetrations by use of the coercive means of fear of
immediate and unlawful bodily injury.3 Like the force necessary to
overcome a victim’s will, “[i]n order to satisfy the [fear] component, the
3 While the prosecutor and defense counsel focused their closings
on the coercive means of “force” by which defendant accomplished the
sexual penetrations, the jurors were free to consider other coercive
means of accomplishing the acts, which included “fear of immediate
and unlawful bodily injury.” Because the jurors were allowed to convict
defendant if they found he used fear of immediate and unlawful bodily
injury, we may sustain the convictions if there is substantial evidence
demonstrating the use of that coercive means of accomplishing the
sexual penetrations.
12
extent or seriousness of the injury feared is immaterial.” (Iniguez,
supra, 7 Cal.4th at p. 856.) Here, there is no question that defendant’s
penetrations while the victims were urinating in the porta-potty units
were acts of “ ‘[s]udden, unconsented[] to’ ” touching, and the ensuing
penetrations of their genital openings, however brief, “ ‘would
reasonably cause one to react with fear.’ ” (Thomas, supra, 15
Cal.App.5th at p. 1071, quoting Iniquez, supra, at p. 858.) By his
conduct, defendant violated “the [victims’] enhanced level of security
and privacy,” providing him with the advantage of “ ‘shock and surprise
which [might] incapacitate the victim(s).’ ” (Iniquez, supra, at p. 858.)
“Any man or woman . . . [finding] himself or herself in this situation
could reasonably react with fear of immediate or unlawful bodily
injury.” (Ibid.)
Accordingly, we conclude there was sufficient evidence to support
the forcible sexual penetration convictions.4
II. No Error in Jury Instructions
A. CALCRIM No. 1045
1. Relevant Facts
Defense counsel requested the language in CALCRIM No. 1045,
which states as follows.
“The defendant is charged in counts one and six with sexual
penetration by force. To prove that the defendant is guilty of this
crime, the People must prove that, one, the defendant committed an act
of sexual penetration with another person. Two, the penetration was
accomplished by using a foreign object. Three, the other person did not
consent . . . to the act. And four, the defendant accomplished the act by
4 In light of our determination, we need not address whether the
evidence was sufficient to demonstrate that the victims’ wills were
overborne by other coercive means, i.e., violence, duress, or menace,
which components were also submitted for the jury’s consideration.
13
force, violence, duress, menace, or fear of immediate and unlawful
bodily injury to the other person.
“Sexual penetration means penetration, however slight, of the
genital or anal opening of the other person for the purpose of sexual
abuse, arousal, or gratification.
“A foreign object, substance, instrument, or device includes any
part of the body except a sexual organ. [In the pattern instruction at
this point, it is suggested as optional language that the court advise the
jury, “Penetration for sexual abuse means penetration for the purpose
of causing pain, injury, or discomfort.”]
“In order to consent, a person must act freely and voluntarily,
and know the nature of the acts.
“An act is accomplished by force if a person uses enough physical
force to overcome the other person’s will.
“Duress means a direct or implied threat of force, violence,
danger, hardship, or retribution that is enough to cause a reasonable
person of ordinary sensitivity to do or submit to something that he or
she would not otherwise do or submit to.
“When deciding whether the act was accomplished by duress,
consider all the circumstances, including the age of the other person
and her relationship to the defendant.
“Menace means a threat, statement, or act showing an intent to
injure someone else.
“An act is accomplished by fear if the other person is actually and
reasonably afraid or if she is actually but unreasonably afraid and the
defendant knows her fear and takes advantage of it.”
At the jury instruction conference, the court asked the parties if
the optional language defining “penetration for sexual abuse” was
necessary. Defense counsel took the position that the proposed
language was not relevant as “penetration for sexual abuse” was not an
14
issue, and the prosecutor agreed. Without objection, the trial court
ruled the optional language regarding the definition of the phrase
“penetration by sexual abuse” would not be given because there was no
substantial evidence to support that theory.
2. Analysis
On appeal, defendant argues the trial court erred in failing to
instruct with the CALCRIM No. 1045 optional language for the
definition of the phrase “penetration for sexual abuse” on the basis that
the court had a sua sponte duty to do so based on People v. White (1986)
179 Cal.App.3d 193 (White). We disagree.
Defendant has forfeited his claim of instructional error by his
failure to object and his specific request that the court not instruct the
jury on the definition of “penetration for sexual abuse” using the
optional language in CALCRIM No. 1045. (See People v. Ryan (1999)
76 Cal.App.4th 1304, 1318-1319 [trial court has no sua sponte duty to
provide amplifying instructions for commonly understood terms in the
absence of a request]; People v. Ahsbahs (1946) 77 Cal.App.2d 244, 249
[in the absence of a request the trial court is not required to define
“lewd” and “lascivious” as it is not necessary to define to the jury every
word found in a statute describing a crime].)
Even if defendant had not requested the language be omitted, the
trial court did not have a sua sponte duty to advise the jury of the
definition of “penetration for sexual abuse.” CALCRIM No. 1045’s
optional language is taken from the decision in White, supra, 179
Cal.App.3d 193, which held that the phrase “penetration for sexual
abuse,” as used in section 289, means “ ‘penetration . . . accomplished
for the purpose of causing pain, injury or discomfort” directed to a
15
victim’s “sexual or ‘private’ parts” (179 Cal.App.3d at p. 205), thereby
adopting the commonly understood dictionary definitions of “abuse”
and “sexual.” 5 The White court did not hold, as defendant contends,
that the phrase “penetration for sexual abuse” has a technical legal
meaning in the context of the sexual penetration statute. Instead, it
merely confirmed that the phrase “penetration for sexual abuse” as
used in section 289 is to be interpreted as it is “ ‘ “ ‘commonly
understood by those familiar with the English language and is not used
in a technical sense particular to the law.’ ” ’ ” (Griffin, supra, 33
Cal.4th at pp. 1022-1023.) “ ‘When a word or phrase “ ‘is commonly
understood by those familiar with the English language and is not used
in a technical sense peculiar to the law, the court is not required to give
an instruction as to its meaning in the absence of a request.’ ”
[Citations.] A word or phrase having a technical, legal meaning
requiring clarification by the court is one that has a definition that
differs from its nonlegal meaning. [Citation.]’ ” (Ibid., quoting People
v. Estrada (1995) 11 Cal.4th 568, 574, italics in original.)
5 “The ‘abuse’ of a person commonly means the mistreatment of the
person ‘in a harmful, injurious, or offensive way.’ (Random House Dict.
of English Language (2d ed. 1987) p. 9.) Abuse is not limited to causing
physical injury to the person; it includes emotional harm by the use of
offensive conduct. (Merriam-Webster’s Collegiate Dict. (11th ed. 2006)
p. 6; Webster’s 3d New Internat. Dict. (1986) p. 8; American Heritage
Dict. (2d college ed. 1985) p. 70; Funk & Wagnalls Standard College
Dict. (1974) pg. 7.) Thus, for example, conduct intending to insult or
humiliate a person is the ‘abuse’ of the person. (E.g., American
Heritage Dict., supra, at p. 70.)” (In re Shannon T. (2006) 144
Cal.App.4th 618, 622.) “Sexual” is defined as “[o]f pertaining to,
affecting, or characteristic of sex, the sexes, or the sex organs and their
functions.” (American Heritage Dict. (2d college ed. 1982) p. 1124.)
16
We also reject defendant’s contention that because the jurors
were not instructed on the definition of “penetration for sexual abuse”
they could have viewed the mere act of penetration of the genital
opening as sufficiently abusive to convict him. The given instructions
do not equate “penetration” with “abuse.” Instead, the jurors were
specifically informed that to convict defendant they must find he had
“the specific intent” to penetrate the women “for the purpose of sexual
abuse, arousal or gratification.” (CALCRIM No. 252.)
We also are not persuaded by defendant’s complaint that his case
is “unusual” in that it presents what is likely a rare instance where the
penetration may have been for purposes other than sexual arousal,
gratification, or abuse. According to defendant, in the absence of a
definition of sexual abuse, “the jurors could have concluded that the
mere act of genital penetration was sufficient to establish sexual abuse.
However, had there been [an] instruction that sexual abuse requires an
intent to injure or cause pain, at least some of the jurors likely would
have voted to acquit [him] . . ., finding instead that his intent was to
embarrass, humiliate and frighten the women. . . .” Defendant’s
argument falters at the outset because it is premised on too narrow a
definition of sexual abuse. Had the omitted definition be given, the
jury would have been advised that defendant could also be found guilty
if the sexual penetration was committed for “the purpose of causing
pain, injury, or discomfort” to the women. (CALCRIM No. 1045; italics
added.) Here, there was ample evidence to support a reasonable juror’s
finding that defendant must have known that digital penetration of the
women would cause discomfort.
17
Lastly, we reject defendant’s argument that his trial counsel was
ineffective because there could be no rational, tactical, or strategic
purpose for failing to request an instruction on the definition of the
phrase “penetration for sexual abuse.” Because the “discomforting”
nature of defendant’s actions was self-evident, defense counsel could
have determined, reasonably and strategically, that the optional
language in CALCRIM No. 1045 would not inure to defendant’s benefit.
Consequently, we reject defendant’s claim of ineffective assistance of
counsel.
For the stated reasons, defendant’s request for reversal based on
the trial court’s failure to instruct the jury using the optional language
in CALCRIM No. 1045 fails.
B. CALCRIM No. 1191B
Over defense counsel’s objection, the court, using language in
CALCRIM No. 1191B, advised the jury as follows:
“The People presented evidence that the defendant committed
the crimes Sexual Penetration by Force, Assault with Intent to Commit
Sexual Penetration, and Sexual Battery as charged in Counts 1, 2, 5, 6,
and 7.
“If the People have proved beyond a reasonable doubt that the
defendant committed one or more of these crimes, 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 the other sex offenses charged in this case.
“If you find that the defendant committed one or more of these
crimes, that conclusion is only one factor to consider along with all the
other evidence. It is not sufficient by itself to prove that the defendant
is guilty of another crime. The People must still prove each charge and
allegation beyond a reasonable doubt.”
18
Defendant contends the instruction was “constitutionally infirm”
as it interfered with the presumption of innocence and allowed the jury
to infer guilt of the charged offenses and to make a finding based on a
standard of proof less than beyond a reasonable doubt.
He acknowledges that his constitutional challenge is foreclosed
by People v. Reliford ((2003) 29 Cal.4th 1007 (Reliford) [reviewing
CALJIC former No. 2.50.1]) and People v. Villatoro ((2012) 54 Cal.4th
1152 [reviewing CALCRIM former No. 1191B]). In those cases, our
high court upheld similar propensity evidence instructions against
constitutional challenges that the instruction interfered with the
presumption of innocence and impermissibly lowered the prosecutor’s
burden of proof. (Reliford, supra, at pp. 1012-1016; Villatoro, supra, at
pp. 1167-1168.) In any event, we agree with those cases and other
appellate decisions in concluding that the trial court properly
instructed the jury using 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.)6
III. No Prejudicial Error in Prosecutor’s Closing Argument
Defendant contends the prosecutor committed prejudicial error
by misstating California’s modified acquittal-first rule during closing
argument. We disagree.
A. Relevant Facts
1. Trial Court’s Instructions
6 Because defendant presents his appellate argument for purposes
of preserving the issue for later review by another court, we do not
address his additional arguments that his constitutional challenge was
not forfeited for review or his contention that his trial counsel was
ineffective for failing to make a constitutional challenge in the trial
court.
19
Before closing arguments, the trial court informed the jury
regarding their consideration of the charged crimes, lesser offenses,
and the relevant evidence. The court also instructed regarding the
verdict forms (CALCRIM No. 3519).
The court specifically instructed the jurors on the elements of the
charged offenses of forcible sexual penetration (charged in count one for
Jane Doe 1 and in count six for Jane Doe 2), burglary (count 3),
vandalism causing damage over $400 (count 4), assault with the intent
to commit sexual penetration by force (lesser offense as charged in
count two (Jane Doe 1) and count seven (Jane Doe 2)), misdemeanor
sexual battery (lesser offense as charged in count five (Jane Doe 1)),
and the lesser offenses of attempted sexual penetration by force,
attempted burglary, attempted vandalism, simple battery and simple
assault. The jurors were then advised:
“If all of you find that the defendant is not guilty of a greater
charged crime, you may find him guilty of a lesser crime if you are
convinced beyond a reasonable doubt that the defendant is guilty of
that lesser crime. A defendant may not be convicted of both a greater
and lesser crime for the same conduct.
“Now I will explain to you the crimes affected by this instruction
including lesser crimes of the lesser crimes:
“Attempted Sexual Penetration by Force is a lesser crime of
Sexual Penetration by Force as charged in Counts [sic] 1 [.]
“Assault with intent to commit sexual penetration by force, as
charged in Counts 2 and 7, is a lesser crime of Sexual Penetration by
Force as charged in Counts 1 and 6.
“Sexual Battery as charged in Count 5 is a lesser crime of Sexual
Penetration by Force.
“Simple Battery is a lesser crime of Sexual Penetration by Force
and is a lesser of the lesser crime of Sexual Battery.
20
“Simple Assault is a lesser crime of Sexual Penetration by Force,
and is a lesser of the lesser crime of Assault with Intent to Commit
Sexual Penetration, and is a lesser of the lesser crime of Sexual
Battery.
“Attempted Burglary is a lesser crime of Burglary.
“Attempted Vandalism is a lesser crime of Vandalism.
“It is up to you to decide the order in which you consider each
greater and lesser crime and the relevant evidence, but I can accept a
guilty verdict of the lesser crime only if you have found the defendant
not guilty of the greater crime.
“For the count in which a greater and lesser crime is charged, you
will receive verdict forms of guilty and not guilty for the greater crime
and the lesser crime. Follow these instructions before you give me any
completed and signed, final verdict form. Return any unused verdict
forms to me, unsigned.
“1. If all of you agree the People have proved that the
defendant is guilty of the greater crime, complete and sign the
verdict form for guilty of that crime. Do not complete or sign any
verdict form for the lesser crime.
“2. If all of you cannot agree whether the People have
proved that the defendant is guilty of the greater crime, inform
me of your disagreement and do not complete or sign any verdict
form for that crime or the lesser crime.
“3. If all of you agree the People have not proved that the
defendant is guilty of the greater crime and also agree the People
have proved that he is guilty of the lesser crime, complete and
sign the verdict form for not guilty of the greater crime and the
verdict form for guilty of the lesser crime. Do not complete or
sign any other verdict forms.
“4. If all of you agree the People have not proved that the
defendant is guilty of the greater or lesser crime, complete and
sign the verdict form for not guilty of the greater crime and the
verdict form for not guilty of the lesser crime.
21
“5. If all of you agree the People have not proved that the
defendant is guilty of the greater crime but all of you cannot
agree on a verdict for the lesser crime, complete and sign the
verdict form for not guilty of the greater crime and inform me of
your disagreement on the lesser crime.”
2. Prosecutor’s Closing Remarks
During closing arguments the prosecutor discussed the jurors’
obligations regarding completion of verdict forms and their
consideration of the charged crimes, lesser offenses and relevant
evidence. Defendant challenges the italicized portions of the
prosecutor’s closing remarks set forth in context:
“So we have seven charged offenses, but five different crimes.
And for some of these crimes we have what are called lesser offenses.
And we’ll talk about those a little later. But those are things you only
look at if you don’t think he committed the greater charged crimes. It
looks tricky, and it looks like there’s a lot, . . ., but the good news is
there’s a lot of overlap.
“So, for example, sexual penetration by force in count one is our
greater offense. And . . . [the] . . . offense . . . assault with intent to
commit sexual penetration is a lesser offense to count one. And the
same applies for count six and seven.
“So you only look at counts two and seven if you don’t think he
committed the greater charged crimes of count one and six. That’s just
how it works. . . .”
After discussing the evidence that established defendant’s sexual
penetration by force of Jane Doe 1, the prosecutor discussed proposed
lesser included offenses for the charged offenses of sexual penetration,
and then returned to a discussion of the sufficiency of evidence to show
defendant had committed sexual penetration by force sufficient to
overcome the victims’ wills. The prosecutor then argued:
“Now assault with intent to commit sexual penetration is a lesser
included crime of sexual penetration by force.
22
“Again, you only look at this count, if you don’t believe he
committed sexual penetration by force. So the greater count that we just
went through. And you are instructed on this because it is the law. Not
because they are in play.
“So assault with the intent to commit sexual penetration, for
example, would be if he did what he did but he was unsuccessful in
penetrating her vagina. And we know that he did. We know that he
penetrated her vagina, because she told us. She has the injury.
There’s no question here.
“Count one has been proven beyond a reasonable doubt, and he
committed that crime, so you don’t even get here.”
The prosecutor also discussed completion of the verdict forms as
follows:
“So verdict forms. You are going to get four different packets of
verdict forms. So in the first packet, packet one, sexual penetration by
force, you are going to have this verdict form. And you are going to
write guilty here, and then whoever you choose to be the foreperson
would date and sign it.
“After you write guilty here, you’re done with this packet. You
don’t move on. The only way that you would move on is if you find not
guilty. And then you’ll move on to the second page. And it is the same
thing. So you don’t move on unless you find not guilty. But you’ll never
get to those, because you’re going to write guilty here on this verdict
form.
“The next packet that you will get is for burglary. This one only
has two pages. It’s the same thing. You’re going to choose a
foreperson. That foreperson is going to write guilty right here. Sign
and date and then you’re done.
“For vandalism, you’re going to have three pages in your packet.
Same thing. Except this one has a special allegation. So after you
write guilty, and sign and date, then you move on to the special
allegation.
“The special allegation is for you to decide if the amount of
damage is over $400. So you write true right here, the amount the
damage is over $400, and you’re done with the packet.
23
“The last packet you will get is for count six. This is for the
Alameda victim, so Jane Doe 2. Same exact things. You’re going to
[write] guilty here, date and sign, and then you’re done with this
packet. You never get to the back pages.
“Now you may deliberate in any order, in any way that you like.
I would suggest starting with the greater offense so the one on top of
the packet.”
B. Analysis
Defendant argues the prosecutor committed prejudicial error by
making statements (italicized above) that erroneously misstated
California’s modified acquittal-first rule by directing the jurors to first
consider greater offenses, and only after rejecting the greater, to then
discuss the lesser crimes. This claim is predicated on the principle that
a jury may be restricted from returning a verdict on a lesser included
offense before acquitting on a greater offense, but the jury may not be
precluded from considering lesser offenses during deliberations. (See
People v. Dennis (1998) 17 Cal.4th 468, 536 (Dennis), citing People v.
Berryman (1993) 6 Cal.4th 1048, 1073 (Berryman), overruled on
another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn.1 &
People v. Kurtzman (1988) 46 Cal.3d 322, 324-325 (Kurtzman).) In
other words, a jury should not be told “it must first unanimously acquit
the defendant of the greater offense before deliberating on or even
considering a lesser offense.” (Dennis, supra, at p. 536, citing
Kurtzman, supra, at pp. 328, 335.)
We initially reject defendant’s argument as he failed “to satisfy
the general rule requiring assignment of [error] and request for
admonition as to any of the comments by the prosecutor of which he
now complains.” (Berryman, supra, 6 Cal.4th at p. 1072; People v. Price
(1991) 1 Cal.4th 324, 460 (Price).) No exception is applicable to the
24
general forfeiture rule in this case. Before the prosecutor’s closing
argument the court had already instructed the jurors on the manner in
which they were to consider the charged offenses, the lesser offenses,
and the relevant evidence, using CALCRIM No. 3519, which
instruction was a correct statement of law. (Dennis, supra, 17 Cal.4th
at p. 536, Berryman, supra, at p. 1073, Kurtzman, supra, 46 Cal.3d at
pp. 324-325.) Had an objection been made and admonition requested,
the court could have readily and easily remedied any prejudice by re-
instructing the jury using CALCRIM No. 3519. (Price, supra, at p.
460.)
Nor do we see any merit to defendant’s claim that review is
required because the prosecutor’s remarks “resulted in a due process
violation, . . . [raising] a significant question of constitutional law based
on undisputed facts.” An erroneous argument asserting “an acquittal-
first rule” “appears to implicate California law only.” (Berryman,
supra, 6 Cal.4th at p. 1077, fn. 7.) Moreover, “[i]n the abstract, an
acquittal-first [argument] appears capable of either helping or harming
either the People or the defendant. [¶] Such an [argument] ‘has the
merit, from the Government’s standpoint, of tending to avoid the
danger that the jury will not adequately discharge its duties with
respect to the greater offense, and instead will move too quickly to the
lesser one. From the defendant’s standpoint, it may prevent any
conviction at all; a jury unable either to convict or acquit on the greater
charge will not be able to reach a lesser charge on which it might have
been able to agree. But it entails disadvantages to both sides as well:
By insisting on unanimity with respect to acquittal on the greater
charge before the jury can move to the lesser, it may prevent the
25
Government from obtaining a conviction on the lesser charge that
would otherwise have been forthcoming and thus require the expense of
a retrial. It also presents dangers to the defendant. If the jury is
heavily for conviction on the greater offense, dissenters favoring the
lesser may throw in the sponge rather than cause a mistrial that would
leave the defendant with no conviction at all, although the jury might
have reached sincere and unanimous agreement with respect to the
lesser charge.’ (United States v. Tsanas (2d Cir. 1978) 572 F.2d 340,
346, fn. omitted (per Friendly, J.).)” (Berryman, supra, at pp. 1077-
1078, fn. 7, italics in original.) We therefore reject defendant’s
assertion that review is necessary as he has not shown the remarks “
‘so infected the trial with unfairness as to make the resulting conviction
a denial of due process.’ ” (Darden v. Wainwright (1986) 477 U.S. 168,
181.)
Nor do we see any merit to defendant’s claim that his trial
counsel’s failure to object to the prosecutor’s closing remarks
constituted ineffective assistance. “[D]eciding whether to object is
inherently tactical, and the failure to object will rarely establish
ineffective assistance.” (People v. Hillhouse (2002) 27 Cal.4th 469, 502.)
Defendant’s contention that there could be no rational, tactical or
strategic purpose in failing to object to the prosecutor’s closing remarks
is not persuasive. Defense counsel’s trial strategy in defending against
the charges was two-fold: (1) defendant was not the man who assaulted
the victims or alternatively, (2) defendant had not sexually penetrated
the women by the use of “enough force to overcome” their wills.
“[W]hile requesting an admonition was one tactical option, counsel
could have also decided that objecting would focus the jury’s attention”
26
on the evidence “in ways that would not be helpful to the defense.”
(People v. Harris (2008) 43 Cal.4th 1269, 1290.) Thus, defendant’s
claim that reversal is required based on ineffective assistance of trial
counsel fails.
Lastly, even if the claim of error were properly before us, we
would reject it on the merits. “Plainly the prosecutor did not tell the
jury it could not or should not consider a lesser offense unless it first
acquitted of the greater offense. Instead, the prosecutor did no more
than offer the jury a suggested approach to its formal decision making
and completion of the verdict forms.” (Dennis, supra, 17 Cal.4th at p.
536; italics added; see Berryman, supra, 6 Cal.4th at p. 1073 [no
prejudicial error where in closing argument the prosecutor sought to
elucidate certain aspects of the court’s instructions and “evidently used
a demonstrative aid in the form of a chart ‘to make sure that all of you
understand . . . how you would work down this ladder of lesser included
offenses’ ”].)
Moreover, a reasonable juror would have understood and applied
the court’s instructions “as governing how to return the verdicts and
findings after completing deliberations.” (Dennis, supra, 17 Cal.4th at
p. 537.) And, here, both the court and the prosecutor informed the jury
that they could consider the evidence in any order, with the court
stating, “It is up to you to decide the order in which you consider each
greater and lesser crime and the relevant evidence,” which was echoed
by the prosecutor’s statement, “Now you may deliberate in any order, in
any way that you like.” No reasonable likelihood exists the jury
construed either the prosecutor’s closing remarks, singly or together
27
with the instructions, “in a manner contrary to the rule of Kurtzman,
supra, 46 Cal.3d 322.” (Dennis, supra, at p. 537.)
We therefore conclude that reversal is not required based on the
prosecutor’s closing remarks. The jury’s “deliberations were [not]
channeled improperly toward a conviction [on greater crimes] to the
exclusion of [the] lesser offenses” as the prosecutor’s closing remarks
“did not impermissibly enhance the risk of unwarranted” convictions on
the greater crimes. (Dennis, supra, 17 Cal.4th at p. 537.)
IV. Admission of Evidence of Prior Offense in Brazil Was
Harmless Error
A. Relevant Facts
The prosecution sought admission of evidence of the prior offense
in Brazil, including defendant’s incriminating statements made to
Brazilian Chief of Police Silva. Defense counsel objected. In
considering the request, the court viewed a videotape of the
interrogation (approximately two minutes in length), reviewed a
written transcript (translated from Portuguese to English) of the
interrogation, and took the testimony of Silva at an Evidence Code
section 402 hearing outside the presence of the jury.
The transcript sets forth a series of questions posed by Silva and
defendant’s responses. Defendant initially confirmed he had no
wounds or injuries. Silva then said defendant had been criminally
charged for “aggravated harm and sexual bothering,” and Silva, “the
chief of police here,” was at the jail for defendant’s “interrogation.”
Silva informed defendant of his “constitutional right to remain silent,”
and defendant was asked if he was “going to use” his right to remain
28
silent. Defendant replied, “No, I am going to give my . . . I want to
speak.”
In response to Silva’s substantive questions, defendant admitted
he had damaged chemical toilets at “City Park.” When asked if he had
used the knives he had been carrying and what was his objective,
defendant said he was ashamed, had never done that kind of thing
before, and had seen an Internet video about watching women in the
bathroom. When Silva asked if defendant had acted in order to satisfy
his “lewdness,” defendant replied, “Yeah, I . . . .” When Silva asked if
defendant saw naked women inside the bathroom, defendant said he
did not get to see any women inside the bathroom even though he had
been watching for approximately a half hour or 40 minutes. Defendant
denied an allegation made by an unidentified woman that he had tried
to enter a toilet while the woman was inside. He also said he had
taken a course for chaplains and that his clergy card was real. When
Silva asked if defendant had anything else to say, defendant said, “Sir,
I . . . I just, I, I have never done any of those things. I don’t have a
record. I don’t . . . I’ve never done this, I haven’t. I am extremely
ashamed.” When Silva asked if defendant had a record for contempt or
failure to comply, defendant replied, “Oh, that . . . No. But this thing, I
was . . . . There was, there was an agreement.” Silva said he
understood and ended the questioning.
At the Evidence Code section 402 hearing, Silva testified that one
of his jobs as Chief of Police was to question suspects. At the outset, a
suspect is informed of the right to either remain silent or speak with
the officer. That is the only right the officer is required by law to give
to the suspect. Before a suspect is entitled to invoke his right to remain
29
silent, he must identify himself and inform the officer whether he has
been injured during his imprisonment.
At the October 14, 2018, interrogation there were two police
officers and a “court reporter” present with Silva. Silva and the two
officers were not in uniform, but one officer was wearing a shirt with
“Police” on it. All of the officers were armed with guns. The officers
remained outside the jail cell, one or two meters away, and not within
reach of defendant, to prevent defendant from trying to “reach for a
weapon” or “spit” on the officers. Silva’s gun remained concealed at all
times, and the other officers did not take out their guns or point them
at defendant.
Silva questioned defendant while defendant was inside his jail
cell and clad only in his underwear. While some suspects are
handcuffed, defendant was not handcuffed because he was not
aggressive. The place of interrogation and defendant’s state of undress
were customary procedures for safety and security reasons. The police
station was “grossly understaffed,” consisting of only the Chief of
Police, and two police officers. The defendant was wearing only
underwear for “safety reasons” because in the past sex offenders had
killed themselves or attempted to kill themselves. Because Silva did
not have officers available to remain at the cells to visually observe the
suspects, most of the time Silva did not allow suspects to wear any
clothing; Brazil “is very hot, so it’s not a problem.” It was “common for
suspects to be in the cell with just their underwear” because it
“reduce[d] the risk of suicide” and their ability to hide “weapon[s] or
anything else.”
30
Silva followed standard procedure by first asking the defendant if
he had been injured (defendant replied he had not) and then asking if
he wanted to exercise his right to remain silent (defendant chose to
speak). When asked to describe defendant’s demeanor, the officer said
he “was very ashamed. In at least three times he told me he was . . .
extremely ashamed of what he did;” defendant was not “terribly
nervous or aggressive, he was just embarrassed.” The officer’s
demeanor was “professional,” as he understood it was his “job to remain
calm and try to make the pertinent questions without much judgment.”
He did not yell and instead spoke in the same manner as he was
speaking in court. Silva did not do anything to make defendant speak
and always remained approximately one meter from the cell. The
questioning “was very quick” and the video recording of the
interrogation was “one minute and 42 seconds long.” Silva spoke with
defendant “the minimum necessary . . . to understand his version of the
facts.” Defendant never said he did not want to talk. Defendant had
the right not to answer one or more questions, but he chose to answer
all the questions.
On cross-examination, Silva confirmed that before being placed
inside a cell defendant was strip-searched by another officer according
to standard security procedures. Silva also confirmed that defendant
did not have a constitutional right to have the assistance of a public
defender at the police station; a public defender is provided in the
“judicial hearing, not the police hearing.” Defendant was told he had
the right to have his family or a private lawyer assist him, but
defendant did not ask for his family or legal assistance and did not
provide a telephone number to contact a lawyer on his behalf.
31
B. Trial Court’s Admissibility Ruling
The trial court issued a tentative ruling that “based on reviewing
the case law, listening to the investigator’s statements regarding the
conversation, as well as the Court’s understanding of the Brazilian
right to remain silent, and right to counsel and family, and at the time
that they apply, having watched the video and reviewing part of the
transcript relating to the voluntariness and coerciveness, the Court
could be admitting this under various theories of [Evidence Code
section] 1101 . . . .” Following further argument by counsel, the trial
court confirmed its tentative ruling, finding that defendant’s
statements were not “coerced. [Defendant] does appear in his
underwear, but he seems like he’s volunteering a statement. He’s
asked, are you going to use your right to remain silent after being
advised that he has that right. And he says no, I’m going to give my – I
want to speak. And then he does so.” However, the court limited the
admission of prior offense evidence pursuant to Evidence Code section
1101 to the following facts: “this happened in a city park,” “there were
damaged chemical toilets,” defendant tried to watch naked ladies for
approximately a half hour or 40 minutes, and defendant said, “he was
ashamed.”
In explaining its ruling, the court stated that it looked at “the
degree of distinctiveness of the individual shared marks of the crimes
and the number of minimally shared marks. And this – when we are
talking about identity, we are asking how similar are these crimes, and
the way that they’re committed, as it relates to identity. And here we
have holes cut into a porta-potty, and that’s really it. It’s a distinctive
[modus] operandi. There’s one common mark and identifier, and
32
actually there’s two, because there’s the cutting, and then the
watching. And he states that he was watching for a half hour or 40
minutes. And it happened at a public event. [¶ ] I never thought that I
would have a case where there’s that calling card. But this is such a
strange incident, in itself, cutting holes in a porta-potty at a public
event. When you look at it in combination with the other marks and
features of this particular crime, it’s so unique and distinct that I think
it can go to identity.”
The court then engaged in the probative/prejudicial balancing
analysis required by Evidence Code section 352 and found the
probative value of the testimony for purposes of identity, common plan
or scheme, specific intent for lewdness (but not the specific intent to
commit forceful penetration), motive, and lack of mistake or accident
(for which it would later be admitted) would not create a danger of
undue prejudice or necessitate an undue consumption of time.
However, in exercising its discretion under Evidence Code section 352,
the court precluded any mention that (1) an unidentified Brazilian
woman said defendant had tried to go into the chemical toilet while she
was inside; (2) defendant was a chaplain; and (3) defendant had no
record, not even for contempt. At defense counsel’s request, the court
also excluded any mention that as a result of the Brazilian offense
defendant had been arrested and later given a diversion-type
suspended sentence providing for no criminal prosecution if he followed
through with certain agreed upon terms.
C. Trial Court Proceedings
During the trial the prosecution presented only Silva’s testimony
as set forth in the Factual and Procedural Background section, ante.
33
The jury did not see the videotape of defendant’s interrogation and no
portion of the transcript was given to the jury. The jury was instructed
regarding the limited purposes for which the prior offense evidence was
admitted and that it could consider the evidence only for those
purposes and no other. 7 (CALCRIM No. 303, 375.)
D. Analysis
7 Using the language in CALCRIM No. 375, the jury was advised,
in pertinent part, as follows: “The People presented evidence that the
defendant committed other offenses that were not charged in this case.
[¶] You may consider this evidence only if the People have proved by a
preponderance of the evidence that the defendant in fact committed the
offenses and act. . . . [¶] If the People have not met this burden, you
must disregard this evidence entirely. [¶] If you decide that the
defendant committed the offenses and act, you may, but are not
required to, consider that evidence for the limited purpose of deciding
whether: [¶] The defendant was the person who committed the
vandalism offenses alleged in the case; or [¶] The defendant acted with
the intent for the crime of Sexual Penetration by Force . . . . [¶] The
defendant acted with the intent for the crime of Attempted Sexual
Penetration by Force . . . . [¶] The defendant acted with the intent for
the crime of Assault with Intent to Commit Sexual Penetration by
Force . . . . ¶] The defendant acted with the intent for the crime of
Burglary . . . . [¶] The defendant acted with the intent for the crime of
Attempted Burglary . . . . [¶] The defendant acted with the intent for
the crime of Sexual Battery . . . ; or [¶] The defendant had a motive to
commit the offenses alleged in this case; or [¶] The defendant’s alleged
actions were not the result of mistake or accident; or [¶] The defendant
had a plan or scheme to commit the offenses alleged in this case. [¶] In
evaluating this evidence, consider the similarity or lack of similarity
between the uncharged offenses and act and the charged offenses. [¶]
Do not consider this evidence for any other purpose. [¶] Do not conclude
from this evidence that the defendant has a bad character or is
disposed to commit crime. [¶] If you conclude that the defendant
committed the act, that conclusion is only one factor to consider along
with all the other evidence. It is not sufficient by itself to prove that
the defendant is guilty of the crimes charged in the case. The People
must still prove every charge beyond a reasonable doubt.”
34
Defendant contends the trial court committed prejudicial error by
admission of the evidence of the prior offense in Brazil, arguing that (1)
the proffered evidence was not relevant to prove intent, motive, identity
or common plan or scheme, as the offense was not sufficiently similar to
be probative in connection with the forcible sexual penetration charges,
and was not relevant on the “non-issue of absence of accident or
mistake;” (2) the court’s refusal to exclude all of the proffered evidence
under Evidence Code section 352 was an abuse of discretion; (3) his
statements concerning the prior offense were involuntary and violated
“his constitutional right to due process and against self-incrimination;”
and (4) the admission of his statements violated the “corpus deliciti
rule,” which requires proof of the occurrence of a crime independent of a
defendant’s own statements. However, even assuming any merit to
these arguments, reversal is not an appropriate remedy as defendant
has failed to demonstrate prejudice under either state law (People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson)) or the federal Constitution
(Chapman v. California (1967) 386 U.S. 18, 24 (Chapman)).
It is well settled under state law that “[n]o judgment shall be set
aside, or new trial granted, in any cause, on the ground of . . . the
improper admission . . . of evidence, . . . unless, after an examination of
the entire cause, including the evidence,” we are “of the opinion that
the error complained of has resulted in a miscarriage of justice.” (Cal.
Const., art. VI, § 13.) “[A] ‘miscarriage of justice’ should be declared
only when” we find “it is reasonably probable that a result more
favorable to the [defendant] would have been reached in the absence of
the error.” (Watson, supra, 46 Cal.2d at p. 836.) As to the claim of
federal constitutional error, the high court in Chapman, supra, 38635
U.S. 18, “rejected the argument that errors of constitutional dimension
necessarily require reversal of criminal convictions. And since
Chapman [the high court] . . . ‘[has] repeatedly reaffirmed the principle
that an otherwise valid conviction should not be set aside if the
reviewing court may confidently say, on the whole record, that the
constitutional error was harmless beyond a reasonable doubt,’ ” that it
was not “reasonably possible” that the error contributed to the verdict.
(Rose v. Clark (1986) 478 U.S. 570, 576.) Despite defendant’s
arguments to the contrary, we can confidently conclude it is neither
reasonably probable (Watson, supra, 46 Cal.2d at p. 836) nor
reasonably possible (Chapman, supra, 386 U.S. at p. 24) that an
outcome more favorable to him would have resulted had the prior
offense evidence and his statements not been admitted.
Defendant contends the admission of the prior offense evidence
was prejudicial because the evidence of forcible penetration was “fairly
weak,” and thus his statements concerning his prior conduct and sexual
motivation likely persuaded any skeptical jurors that he had, in fact,
intended to and did accomplish two acts of sexual penetration. We
disagree.
There was nothing ambiguous or imprecise about the testimony
of the victims. Jane Doe 1 specifically testified defendant penetrated
her vagina, while Jane Doe 2 specifically testified defendant’s fingers
were inside her genital lips and she felt a sensation of grabbing.
(People v. Quintana (2001) 89 Cal.App.4th 1362, 1366-1367, 1371
[penetration within the meaning of section 289 is not limited to
penetration of the vagina but also includes “intrusion into a victim’s
“ ‘ “genital opening” ’ ” by “contact ‘between the folds of the skin over
36
[the] vagina’ ”].) While there are circumstances in which a person may
intentionally penetrate another person for purposes other than sexual
arousal, gratification, or abuse (People v. Ngo (2014) 225 Cal.App.4th
126, 163), this is not one of those cases. Defendant’s conduct –
penetrating genital openings of victims while they are urinating in
porta-potty units – supports no rational explanation other than for the
purposes of sexual arousal, gratification, or abuse. Moreover, there is
no question that defendant accomplished his penetrations by the
coercive means of force or fear within the meaning of section 289. By
his conduct, defendant violated “the [victims’] enhanced level of
security and privacy,” providing him with the advantage of “shock and
surprise,” demonstrating the necessary force and fear within the
meaning of section 289. (Thomas, supra, 15 Cal.App.5th at p. 1071.)
And, the videos and digital photographs taken from defendant’s cell
phones comprised strong circumstantial evidence that defendant was
the assailant and had acted for the purpose of sexual arousal,
gratification, or abuse.
As to any prejudice arising from Silva’s trial testimony, we note
the evidence “was no stronger” and far less “inflammatory than the
testimony concerning the charged offenses.” (People v. Ewoldt (1994) 7
Cal.4th 380, 405.) While the prior offense evidence was adverse to
defendant, it “was not of such overwhelming force that it would have
caused a reasonable juror to abandon the trial court’s instructions and
presume defendant’s guilt” of the charged offenses based on the prior
offense. (People v. Quartermain (1997) 16 Cal.4th 600, 627
(Quartermain).) Given the brief nature of Silva’s testimony concerning
defendant’s conduct in Brazil, contained in seven pages of transcript,
37
we reject defendant’s assertion that the jurors were misdirected from
careful consideration of the evidence of the charged offenses and were
instead distracted with evidence of defendant’s conduct in Brazil
without knowing the punishment for that conduct. In addition to the
court’s instruction on the limited nature for which the prior offense
evidence had been admitted, the jury was instructed on the specific
elements of the charged offenses, that convictions required proof
beyond a reasonable doubt, and for each offense a guilty verdict
required “proof of the union, or joint operation of act and wrongful
intent.” “No reasonable juror would believe those requirements could
be satisfied solely by proof of” defendant’s statements concerning the
prior offense in Brazil. (Reliford, supra, 29 Cal.4th at pp. 1013-1014.)
Because the admission of the evidence of the prior offense and
defendant’s statements “did not render the trial fundamentally unfair
in violation of due process” (Quartermain, supra, 16 Cal.4th at p. 627),
as it was in no way outcome determinative, we conclude the
complained-of error was harmless under either the Chapman or Watson
standard of review.
V. Defendant is Entitled to Additional Presentence Credit
The parties agree, and we concur, that defendant’s presentence
custody credits were miscalculated. Defendant was arrested on May
26, 2019, and sentenced on January 14, 2020. Because custody is
calculated to include both the first day in custody and last day in
custody, even if only partial days, defendant was in custody for 234
days, and not 233 days as calculated by the trial court. As a necessary
corollary, defendant’s 34 days of conduct credit, calculated at fifteen
percent for the violent felony conviction, should be increased by one day
38
to 35 days for conduct credit. Accordingly, defendant is entitled to a
total of 269 days of presentence credit for time served, rather than 267
days as reflected in the sentencing minutes and abstract of judgment.
CASE NO. A162101
I. No Error or Abuse of Discretion in Victim Restitution
Order
A. Relevant Facts
At a January 14, 2020 sentencing hearing, Jane Doe 1 testified
that she had attempted to put the incident behind her but was haunted
“daily” and her life had “completely changed.” She was suffering from
depression and post-traumatic stress disorder and was seeing a
therapist. She even suffered back pain as a result of the incident, for
which she had received chiropractic care. She had to pay for therapy
appointments insofar as they were not covered by insurance,
transportation to and from those appointments, and transportation
from her home in San Francisco to the Napa court for appearances in
the case. In light of defendant’s objection to the requested amount of
restitution, the court set a date for a restitution hearing.
In late 2020, the prosecution filed a written request seeking
victim restitution for Jane Doe 1 in the following amounts: (1) $764.17
for medical visits for gynecological, urgent, and chiropractic care; (2)
$160 for therapy sessions; (3) $338.79 for additional chiropractic care;
(4) $959.98 in transportation expenses; and (5) $160.29 for one-night
hotel stay prior to the date of sentencing.
Defendant opposed certain requests at issue on this appeal: (1)
chiropractic care based on the argument that his brief touching of her
genitalia in May 2019 would not have caused a back injury requiring
39
such care; (2) transportation expenses for car service rides from San
Francisco (Jane Doe 1’s home) to Napa (place of trial) on any date she
did not actually attend court; and (3) a hotel stay the night before the
sentencing hearing as the sentencing took place in the late morning
and therefore she could have come from San Francisco (approximately
50 miles away) that same morning.
Before the scheduled restitution hearing, Jane Doe 1 submitted a
declaration, together with receipts for chiropractic treatment,
transportation costs related to trial court proceedings, and the hotel
stay on the day before sentencing. In that declaration, Jane Doe 1
explained that “during the course of the assault,” she “quickly turned to
try and grab the perpetrator’s hand, which caused an injury to her back
for which she [sought] regular chiropractic care,” paid for “out of
pocket.” She specifically sought reimbursement for an urgent care visit
and back x-ray taken at that visit, explaining that about a month after
the assault she “was on a work assignment where regular standing and
walking for the assignment was required. While performing my
regular job duties, my back locked up as a result of the injury [she]
sustained during the assault, and I could not walk, sit, or stand. [She]
needed to go to the Urgent Care in the city I was working in so that I
could be prescribed pain medication in order to finish [her] job
assignment.” She also sought to recover monies for a total of eight
chiropractic visits.
As to transportation costs associated with the trial court
proceedings, Jane Doe 1 requested her expenses for 7 days (November
1, 18, 19, 2019, December 3, 4, 5, 2019, and January 13, 2020). She
explained that she “had to go to Napa for meetings with the district
40
attorney’s office to prepare for trial, to testify in the trial, and for the
sentencing.” As to her hotel stay in Napa on the day before sentencing,
she lived in San Francisco. “The sentencing was in Napa early one
morning at 8:30 a.m. I rely on [a car service] and the ferry to get to
Napa. I could not risk commuting in that morning during rush hour, so
I stayed in a hotel the night before.”
At the January 7, 2021, restitution hearing, defense counsel did
not present any evidence. The court heard argument from both counsel
and took testimony from Jane Doe 1. She gave further explanations
regarding chiropractic visits, and reiterated they were needed due to
the injury she had incurred from the sexual assault. She explained
that she had asked her physicians to write a statement (for which she
was charged a fee) to document their impressions of her back injury.
She also explained that some of the requested transportation expenses
were for payments made for a car service to transport a “percipient
witness who was with Jane Doe 1 the night that she was assaulted” to
the airport.
Following Jane Doe 1’s testimony, defense counsel argued that,
while typically a defendant had no ability to seek medical documents
substantiating a victim’s claim that an injury is related to the incident,
in this case Jane Doe 1 mentioned such documents and hence they
should be provided to defendant. The prosecutor opposed the request
as the information supplied to the court was sufficient to show the
expenses were reasonably related to defendant’s conduct, retrieving the
victim’s medical documents was not necessary, and the court could take
a sworn affidavit or testimony from a victim.
41
At the continued hearing on January 13, 2021, the court ruled, in
pertinent part, as follows: “The court has read and considered the
declaration as well as the supporting documents, and I had a chance to
investigate some cases . . . . [¶] And the court is ordering restitution to
Jane Doe [1] in the amount of $4,259.60 . . . . The court is awarding all
of the therapy costs, the prescription costs, chiropractor costs, and
other medical requests. The court is granting the transportation costs
minus the . . . rounding up donations. [¶] When the court looks at the
tip amount and the tips, the tips seem to be a reasonable cost of
procuring a ride from [a car service] . . . . Generally tips are included in
. . . government stipends for . . . transportation costs, . . . so the court
will be awarding tips; however, the court could find no authority or
basis for awarding the donations for rounding up [fares] for charity.
But all of the rides are covered including out-of-pocket expenses [for]
assisting in the . . . prosecution pursuant to [section] 1202.4[, subd.]
(f)(3) and People [v.] Rowland [(1997)] 51 Cal.[App.]4th [1745] at [page]
1754. This includes the hotel costs. The court [is] determining that
those are reasonable. . . . So the amount was what was requested minus
$5.81.” The court further ordered ten percent interest from the date of
sentencing because the losses “were clearly incurred beforehand.”
B. Analysis
A trial court has the authority to order victim restitution under
section 1202.4, subdivision (f), which provides that “in every case in
which a victim has suffered economic loss as a result of defendant’s
conduct, the court shall require that the defendant make restitution to
the victim . . . in an amount established by court order, based on the
amount of loss claimed by the victim . . . or any other showing to the
42
court.” Section 1202.4, subdivision (f)(3) specifically provides that “[t]o
the extent possible, the restitution order . . . shall identify each victim
and each loss to which it pertains and shall be of a dollar amount that
is sufficient to fully reimburse the victim . . . for every determined
economic loss incurred as the result of the defendant’s criminal
conduct, including, but not limited to, all of the following: . . . (B)
Medical expenses. . . . (G) Interest, at the rate of 10 percent per annum,
that accrues as of the date of sentencing or loss, as determined by the
court.”
Additionally, our state Constitution provides crime victims with
certain rights “[i]n order to preserve and protect [their] rights to justice
and due process,” including the right to “restitution,” “[t]o prevent the
disclosure of confidential information or records to the defendant, the
defendant’s attorney, or any other person acting on behalf of the
defendant, which could be used to locate or harass the victim or the
victim’s family or which disclose confidential communications made in
the course of medical or counseling treatment, or which are otherwise
privileged or confidential by law;” and “[t]o reasonable notice of all
public proceedings, . . . upon request, at which the defendant and the
prosecutor are entitled to be present and . . . , to be present at all such
proceedings.” (Cal. Const., art. I, § 28, subd. (b)(4),(7),(13).)
The applicable standard of review is abuse of discretion. “ ‘A
victim’s restitution right is to be broadly and liberally construed.’ ”
(People v. Prosser (2007) 157 Cal.App.4th 682, 686.) “ ‘ “ ‘When there is
a factual and rational basis for the amount of restitution ordered by the
trial court, no abuse of discretion will be found by the reviewing court.’
” ’ ” (People v. Baker (2005) 126 Cal.App.4th 463, 467.) “In reviewing
43
the sufficiency of the evidence, the ‘ “power of the appellate court begins
and ends with a determination as to whether there is any substantial
evidence, contradicted or uncontradicted,” to support the trial court’s
findings.’ [Citations.] Further, the standard of proof at a restitution
hearing is by a preponderance of the evidence, not proof beyond a
reasonable doubt. [Citation.] . . . We do not reweigh or reinterpret the
evidence; rather we determine whether there is sufficient evidence to
support the inference drawn by the trier of fact. [Citation.]” (Id. at pp.
468-469.)
In support of her claim for chiropractic treatment expenses,
Jane Doe 1 proffered her chiropractic treatment bills listing diagnoses
of segmental and somatic dysfunction of the cervical, thoracic and
lumbar regions, low back pain, pain in the right and left hips, and
“other muscle spasm.” At trial and sentencing and at the restitution
hearing she explained she had strained her back when she resisted
defendant’s sexual penetration thereby necessitating chiropractic care.
Defendant’s claim that the trial court could not order restitution
for the chiropractic treatment expenses in the absence of Jane Doe 1’s
medical records is not persuasive. His reliance on the need for expert
testimony to prove the element of causation in “the tort and Worker’s
Compensation context,” is misplaced. “ ‘ “Section 1202.4 does not, by its
terms, require any particular kind of proof’. . . . ‘ “This is so because a
hearing to establish the amount of restitution does not require the
formalities of other phases of a criminal prosecution.” ’ ” ’ ” (People v.
Lockwood (2013) 214 Cal.App.4th 91, 96; see People v. Millard (2009)
175 Cal.App.4th 7, 30 [at restitution hearing the prosecution was “not
required to present vocational rehabilitation expert testimony
44
regarding the amount of [victim’s] future lost earnings”].) “ ‘Due
process does not require a judge to draw sentencing information
through the narrow net of courtroom evidence rules. . . [. S]entencing
judges are given virtually unlimited discretion as to the kind of
information they can consider and the source . . . whence it comes.’ ”
(People v. Baumann (1985) 176 Cal.App.3d 67, 81.) Based on Jane Doe
1’s testimony at trial, statement at sentencing, her declaration, her
testimony at the restitution hearing, together with her medical bills,
the trial court reasonably found Jane Doe 1’s strained back injury,
necessitating chiropractic treatment, was due to defendant’s criminal
conduct. The court was free to accept the evidence supporting the
restitution award, especially as defendant presented no evidence
calling into question Jane Doe 1’s explanation as to how she strained
her back. Therefore, defendant’s challenge to the award of restitution
for chiropractic treatment expenses fails.
There is also no merit to defendant’s challenge to the award of
transportation expenses and hotel costs related to the trial proceedings.
The trial court may compensate a victim for any economic loss which is
shown to be the direct result of defendant’s criminal conduct, even if it
is not enumerated in the restitution statute. (People v. Williams (2010)
184 Cal.App.4th 142, 147 [only limitation placed on victim restitution is
that loss must be an “economic loss” incurred as a result of defendant’s
criminal conduct]; People v. Moore (2009) 177 Cal.App.4th 1229, 1233
[“that the victim’s attendance [at trial proceedings] was not mandated
by statute, that he was not required to address the court at those
hearings, and that he chose to attend the proceedings of his own
volitation, [did] not relieve [the] defendant from the responsibility to
45
compensate [the victim] for the loss attributable to [the] defendant’s
criminal conduct]; People v. Crisler (2008) 165 Cal.App.4th 1503, 1509
[victim’s trial-related expenses need not fall within any of the
enumerated categories in statute to qualify for reimbursement].)
In sum, we reject defendant’s challenges to the victim restitution
awarded to Jane Doe 1 and affirm the award.
DISPOSITION
Case No. A159406
The matter is remanded to the trial court with directions to
amend its sentencing minutes and the abstract of judgment to reflect
an award of 234 days of presentence custody credit and 35 days of
conduct credit, for a total of 269 days of presentence credit for time
served, and to forward a certified copy of the amended abstract of
judgment to the Department of Corrections and Rehabilitation. In all
other respects, the judgment is affirmed.
Case No. A162101
The January 13, 2021 order of restitution is affirmed.
46
_________________________
Petrou, J.
WE CONCUR:
_________________________
Fujisaki, Acting P.J.
_________________________
Chou, J.*
People v. Fontes/A159406/A162101
*Judge of the Superior Court of San Mateo County, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
47