People v. Salinas CA5

Filed 4/25/22 P. v. Salinas CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079629
Plaintiff and Respondent,
(Super. Ct. No. VCF353719)
v.
PEDRO SALINAS, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Gary L.
Paden, Judge.
Audrey Rene Chavez, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B.
Bernstein and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
INTRODUCTION
Between October 2008 and July 2017,1 defendant Pedro Salinas sexually abused
his girlfriend’s young daughter and the daughter’s cousin multiple times. A jury
convicted defendant of multiple counts of lewd acts upon a child under 14 years of age
(some committed by force), sodomy of a child under 14 years of age, forcible sodomy of
a minor, and sexual penetration of a minor. The trial court sentenced defendant to a total
term of 122 years to life in prison, including five separate terms of 15 years to life,
pursuant to the “One Strike” law (Pen. Code, § 667.61).2
Defendant contends on appeal (1) the evidence was insufficient to prove that the
victim was under 14 years of age at the time of the lewd act charged in count 5; (2) the
evidence was insufficient to prove forcible sexual penetration of a child 14 years of age
or older, as charged in count 12, because the act of penetration involved use of
defendant’s penis which is not a foreign object for purposes of the statute; (3) the trial
court erred in not staying his sentence as to count 8 because it involved the same act of
forcible sodomy as charged in count 9; and (4) the trial court erred in instructing the jury
to commence deliberations anew after substituting an alternate juror and, therefore,
deprived defendant of his Sixth Amendment right to a unanimous jury. The People
concede that we must stay the sentence on count 8 and overturn the convictions on
counts 5 and 12 but argue that we may modify count 12 to the lesser included offense of
sexual battery. The People also argue the trial court’s instructions were not in error and,
if erroneous, did not prejudice defendant. We accept the People’s concessions but
modify count 12 to the lesser included offense of assault on a person under 18 years of
age with intent to commit rape (§ 220, subd. (a)(2)). We remand for resentencing and
otherwise affirm the judgment.
1 Subsequent references to dates are to dates in the year 2017, unless otherwise stated.
2 All further statutory references are to the Penal Code unless otherwise indicated.
2.
PROCEDURAL BACKGROUND
The District Attorney of Tulare County filed an information on April 10, 2018,
charging defendant with forcible lewd acts upon a child under 14 years of age (§ 288,
subd. (b)(1); counts 1–3), lewd acts upon a child under 14 years of age (§ 288, subd. (a);
counts 4–8, 14–16),3 aggravated sexual assault of a child under 14 years of age by
forcible sodomy (§ 269, subd. (a)(3); count 9), forcible sodomy of a child 14 years of age
or older (§ 286, subd. (c)(2)(C); counts 10, 11), and forcible sexual penetration of a child
14 years of age or older (§ 289, subd. (a)(1)(C); counts 12, 13).4 As to counts 1 through
5, 7, 8, and 10 through 16, the information alleged that defendant committed the offenses
against more than one victim within the meaning of the One Strike law. (§ 667.61,
subds. (b), (e).) In addition, counts 1 through 5, 8, 14, and 15 each alleged that defendant
had substantial sexual conduct with a child under 14 years of age. (§ 1203.066,
subd. (a)(8).)
Defendant pled not guilty to the charges and denied all allegations in the
information.
After a four-day trial, on June 12, 2019, the jury convicted defendant of counts 1
through 6 and 8 through 155 and acquitted him of counts 7 and 16.6 The jury found true
the multiple victim circumstances (§ 667.61, subds. (b), (e)) as to counts 2, 3, 14, and 15
and the allegations that defendant had substantial sexual conduct with a child under
14 years of age (§ 1203.066, subd. (a)(8)) as to counts 1 through 5, 8, 14, and 15.
3 Count 6 alleged an attempted lewd act upon a child under 14 years of age.
4 Counts 1 through 13 relate to victim G.S., counts 14 and 15 relate to victim M.C., and
count 16 relates to victim I.C.
5 As to counts 1 and 3, the jury acquitted defendant of forcible lewd acts upon a child but
convicted him of the lesser included offense of lewd acts upon a minor.
6 Count 7 charged defendant with committing lewd conduct upon a child by touching the
victim’s buttocks and count 16 charged defendant with committing lewd conduct upon a child by
pulling at her pants.
3.
On July 15, 2019, the court denied probation and sentenced defendant to
consecutive terms of 15 years to life on each of counts 2, 3, 9, 14, and 15, for a total
indeterminate term of 75 years to life. The trial court also sentenced defendant to a total
consecutive determinate term of imprisonment of 47 years7 and imposed a
$350 restitution fine (former § 1202.4, subd. (b)), a stayed $350 parole revocation
restitution fine (§ 1202.45, subd. (a)), $300 sex offender fine (§ 290.3), a $1,000 sexual
offense restitution fine (§ 294, subd. (b)), a $560 court operations assessment (§ 1465.8),
and a $420 criminal conviction assessment (Gov. Code, § 70373).8
Defendant timely appealed that same day.
FACTS
I. People’s Evidence
A. Defendant Sexually Abused G.S., His Girlfriend’s Daughter (counts 1–13)
G.S. was six or seven years old when her mother, Estella,9 started dating
defendant in May of 2008 or 2009.10 Defendant moved in with Estella and G.S. shortly
thereafter. After they had been together approximately one to two years, in 2010,
defendant and Estella had a son, Brian. Estella was with defendant for eight or nine
years, ending their relationship in July after she learned defendant sexually abused G.S.
When defendant first moved in with Estella and G.S., they lived with Estella’s
sister, Celia, and her two daughters, Yasbel and Jennifer. One or two years later (while
7 The trial court sentenced defendant to six years on count 1 and consecutive one-third
terms on counts 4, 5, 6, and 8 (two years, two years, one year, & two years, respectively), plus
nine years on count 10, nine years on count 11, eight years on count 12, and eight years on
count 13.
8 The court ordered that victim restitution remain open. (Former § 1202.4, subd. (f).)
9 We will refer to the victims and their family by first names and/or initials to preserve the
privacy of G.S., M.C., and I.C. No disrespect is intended.
10 G.S. testified that she was born 2001.
4.
Estella was pregnant with Brian), defendant, G.S., and Estella moved in with Estella’s
sister, Salustia, and Salustia’s daughters, Livoria, M.C., and I.C.
G.S. described a time while living at Celia’s house, before she was 14 years old,
when defendant showed his penis to G.S., M.C., and I.C.11 Defendant offered to let them
touch it, but the girls hid behind curtains because they did not want to look. G.S.
described another time, before she turned 14 years old, when she was sitting on the bed
and defendant touched her. Defendant put his finger into her anus.12 Her cousin, Yasbel,
was home and almost saw it happen, but G.S. never told Yasbel.
G.S. would sometimes sleep with her mother, Estella, and defendant. One time,
while Estella was pregnant, defendant reached over and grabbed G.S.’s buttocks over her
pajamas. G.S. was in third grade when that happened.13 Another time, G.S. was playing
with a friend and defendant twirled her while holding her on his shoulder. G.S.’s friend
later told G.S. that defendant had touched her buttocks while twirling her in the air.14
Later, while Estella was in the hospital giving birth, defendant touched G.S.
again.15 Defendant went into Estella’s bedroom and pulled G.S.’s pants down despite her
resistance. He then put his fingers into her vagina for approximately 20 minutes. G.S.
11 On cross-examination, G.S. remembered that another cousin, Iris, was also present.
12 During closing argument, the prosecutor argued this incident supported conviction on
count 1, a forcible lewd act upon a child under 14 years of age in violation of section 288,
subdivision (b)(1). The jury convicted defendant of the lesser included offense of a lewd act
upon a child under 14 years of age. (§ 288, subd. (a).)
13 During closing argument, the prosecutor argued this incident supported conviction on
count 7, a lewd act upon a child under 14 years of age in violation of section 288,
subdivision (a).
14 The prosecutor argued this incident also supported conviction on count 7, a lewd act upon
a child under 14 years of age in violation of section 288, subdivision (a) and reminded the jury to
agree on which incident supported conviction.
15 As Brian was born in 2010, this incident would have occurred when G.S. was
approximately eight years old. During closing argument, the prosecutor argued this incident
supported conviction on count 2, a forcible lewd act upon a child under 14 years of age in
violation of section 288, subdivision (b)(1).
5.
said that defendant caused her pain and she noticed blood after the incident. Defendant
threatened to do worse to G.S. if she told anyone what he had done, and she became
afraid that he would rape her.
G.S. testified about another incident where defendant had touched her vagina
while in a vehicle in a store parking lot.16 She had accompanied defendant to purchase
dog food, but when they reached the parking lot, defendant reached back to where she
was sitting and put his fingers into her vagina. Although G.S. cried and attempted to
avoid him, defendant was able to insert his fingers. G.S. bled onto her underwear and
defendant threw them away when they arrived home so Estella would not see. This
incident occurred before G.S. turned 14 years old.
G.S. described that her mother would leave to work in the fields at 5:00 a.m. or
6:00 a.m. most mornings, leaving G.S. with defendant and her brother Brian. While
Brian was sleeping, defendant would wake G.S., take her to his bedroom, and sexually
assault her before he left for work. Until G.S. reported the abuse to the police on July 19,
defendant sexually abused her approximately five to six times per week, mostly when her
mother was at work, at the store, helping family members, or doing laundry in a detached
part of the residence.
Estella testified that during her relationship with defendant, she worked in the
fields, stopping only for the birth of their son, Brian. Estella also testified that she left for
work every morning, approximately five or six days a week, between 5:00 a.m. and
6:00 a.m. (or 4:30 a.m.–5:30 a.m., depending on the time of year), leaving G.S. and Brian
home with defendant until he left for work. Defendant worked for an irrigation company
and would leave for work after Estella, sometimes as early as 6:00 a.m.
16 During closing argument, the prosecutor argued this incident supported conviction on
count 3, a forcible lewd act upon a child under 14 years of age violation of section 288,
subdivision (b)(1).
6.
G.S. testified that defendant threatened her several times during the years of sexual
abuse and said that he would hurt her if she ever told anyone of the abuse. She was afraid
of defendant because defendant continually threatened and forced her to comply with the
abuse.
One time, before G.S. was 14 years old, defendant ordered G.S. into the bedroom
for sexual abuse, and G.S. refused to go. Her mother was sleeping by the couch, so G.S.
laid down near her. Defendant brought a knife from the kitchen and told G.S. to go to
defendant’s bedroom while using the knife to cut his fingernails. G.S. interpreted the
action as a threat to compel her to obey. G.S. woke Estella, Estella asked defendant why
he had the knife, and defendant claimed he was using it to cut his nails. Estella
remembered waking up and seeing defendant with a knife but testified that he often
cleaned his nails with a knife.
G.S. testified that when she was in third or fourth grade, she told Estella defendant
had been touching her. According to G.S., Estella discussed it with defendant that
evening and, the next day, defendant punished G.S. by putting his fingers into her vagina.
Estella testified that G.S. did not tell her defendant had been sexually abusing her.
G.S. testified that between the time that defendant first sexually abused her and the
day that she reported the abuse to the police, defendant tried to force his penis into her
vagina several times.17 He would touch his penis to her vagina, and it would not go all
the way inside. G.S. initially testified that this happened more than five times but
clarified she could not remember the specific days, just that it happened more than once
before she turned 14 years old.
17 During closing argument, the prosecutor argued this incident supported conviction on
count 6, an attempted lewd act upon a child under 14 years of age (§ 288, subd. (a)).
7.
In addition to the other acts of sexual abuse, defendant also put his mouth on
G.S.’s vagina at least 50 times and at least one time before she turned 14 years old.18
Defendant also made G.S. put her mouth on his penis approximately 10 times, but she did
not remember if any of those incidents occurred before she turned 14 years old.19
G.S. testified that defendant put his finger into her anus approximately 30 times
over the years, and more than three of those incidents occurred before she was 14 years
old. Defendant put his penis into her anus approximately 10 to 15 times in that period but
only once before she turned 14 years old.20 Defendant would use lubricant or saliva on
his finger before inserting it into her anus, and usually inserted his finger first before
inserting his penis.
As G.S. got older, defendant would put his penis into her anus with increasing
frequency. Defendant did this to her both in his bedroom and in the living room. During
one incident, in the living room, defendant bent her over the couch, with her feet on the
floor and her upper body on the cushions. While defendant put his penis into her anus,
she cried and screamed into the cushion because of the pain.21
18 During closing argument, the prosecutor explained that this conduct was the basis of
count 4, a lewd act upon a child under 14 years of age (§ 288, subd. (a)).
19 During closing argument, the prosecutor explained that this conduct was the basis of
count 5, a lewd act upon a child under 14 years of age (§ 288, subd. (a)).
20 During closing argument, the prosecutor explained that this conduct was the basis of
count 8, a lewd act upon a child under 14 years of age (§ 288, subd. (a)).
21 During closing argument, the prosecutor explained that this conduct was the basis of
count 9, aggravated sexual assault of a child under 14 years of age by forcible sodomy (§ 269,
subd. (a)(3)). The prosecutor explained that counts 10 and 11, forcible sodomy, related to the
first time and last time defendant put his penis in G.S.’s anus when she was 14 years of age or
older (§ 286, subd. (c)(2)(C)).
8.
G.S. revealed defendant’s sexual abuse on July 19. G.S. testified that the day
before reporting the sexual abuse, on July 18,22 defendant told G.S. that he would be
gradually inserting his penis into her vagina to expand her vagina so that by the time she
turned 18 years old, he would be able to fully insert his penis. Defendant inserted his
penis into her vagina, but it did not go all the way inside.23 Defendant also put his finger
into G.S.’s anus before he inserted his penis. He rubbed his penis between her legs until
sperm came out.24 G.S. used toilet paper to wipe the sperm from her body. G.S.
showered the next day.
On July 19, G.S. told the police that earlier that day defendant had sexually abused
her by putting his penis into her anus and was interrupted by the arrival of his
coworker.25 G.S. did not recall anyone else arriving at the residence that morning.
B. Discovery of Defendant’s Sexual Abuse of G.S., M.C., and I.C.
On July 18, I.C. and M.C. told their cousin, Daisy, that defendant had sexually
abused them. The following day, G.S.’s cousin (either M.C. or I.C.) texted G.S. and
invited her to M.C.’s house. G.S.’s other cousins, Daisy and Iris, picked G.S. up to take
her to M.C.’s house. During the car ride, Daisy asked G.S. if defendant ever touched her.
G.S. denied it because she did not “want to say it.” Daisy asked again and told G.S. that
M.C. and I.C. had told Daisy that defendant touched them. G.S. broke down crying and
admitted that defendant had been sexually abusing her. Upon arriving at M.C.’s house,
22 G.S. testified to sexual assaults by defendant on both July 18 and 19. During direct
testimony, she described that defendant had put his penis in her anus and ejaculated on July 19,
the same day the abuse was reported to the police. Defense counsel elicited that those events
occurred the day before, on July 18.
23 In closing argument, the prosecutor explained to the jury that this incident was charged in
count 12, forcible sexual penetration of a child 14 years of age or older (§ 289, subd. (a)(1)).
24 In closing argument, the prosecutor explained that this incident was charged in count 11,
forcible sodomy upon a child 14 years of age or older (§ 286, subd. (c)(2)(C)).
25 In closing argument, the prosecutor explained that this incident was charged in count 13,
forcible sexual penetration of a child 14 years of age or older. (§ 289, subd. (a)(1)).
9.
Salustia (Estella’s sister and the mother of M.C. and I.C.) called the police and reported
what defendant had done.
Estella testified that she learned about the allegations against defendant from Celia
when G.S. did not return from M.C.’s house. When she called defendant, he denied the
allegations. Estella then called the police and, while the police were with her, she called
defendant again. Defendant continued to deny the allegations. Estella asked defendant to
return to their residence, but defendant refused. He told Estella that he was not stupid
and would not go to jail. Defendant sounded as if he had been drinking, although he had
not had a drink for more than a year before that day. Defendant claimed that whatever
was being said was not true. Defendant demanded to speak to G.S. and became upset
when Estella refused.
After speaking with the police, G.S. submitted to a sexual assault examination that
included swabbing the inside and outside of her anus and vagina. G.S. testified that she
did not sit on any furniture while unclothed, rub defendant’s clothing on her genitals, or
rub any other item with his DNA on her genitals. The family shared a single bathroom.
G.S. further testified that she had told the truth to the police, no one told her what to say,
and that her testimony was truthful.
Angela Yarbrough, a nurse, testified that G.S.’s sexual assault examination
involved a visual inspection of her external genitalia, vaginal area, perineum, and rectal
area. Because of the invasiveness of the exams, G.S. refused to allow a speculum exam
or anus scope exam. G.S. advised Yarbrough that G.S. had showered earlier that day.
The examination resulted in no physical findings, which is not uncommon, though there
were some abnormal secretions coming out of her vagina. The findings were consistent
with the history given by G.S.
Yarbrough obtained a vaginal swab, rectal swab, and an external genitalia swab
and submitted them for DNA analysis. Adrian Mendoza, a senior criminalist with the
Department of Justice at the Fresno Regional Laboratory, testified that he extracted DNA
10.
from the swabs and separated the DNA extractions into a “sperm fraction” and a “non-
sperm fraction.”
According to Mendoza, the vaginal swab tested negative for both sperm and p30, a
protein found in seminal fluid. The rectal swab and external genitalia swab both tested
negative for sperm but positive for p30. A mixture of DNA was found for the sperm
fraction of the external genitalia swab, consistent with G.S. as a major contributor and a
minor male contributor, although it could not be determined whether the male DNA was
from semen, blood, or skin cells. Defendant could not be eliminated as the male
contributor. However, the minor contributor types are expected to occur in randomly
selected individuals of one in approximately 96 quadrillion African Americans,
18 quadrillion Caucasians, and 91 quadrillion Hispanics.
Mendoza could not opine as to when defendant’s DNA was transferred to G.S. or
how it was transferred. Mendoza acknowledged that individuals sharing a residence
would have contact with the DNA of other occupants and transfer could take place. If
such a transfer happened, the number of cells transferred would be small. Upon
questioning by the defense, Mendoza testified that male ejaculate could remain detectable
up to five days, depending upon the environment and whether the victim had a bowel
movement, wiped the area, or showered after the transfer.
C. Defendant Sexually Abused G.S.’s Cousin, M.C. (counts 14 & 15)
M.C., 16 years old at the time of trial, testified her aunt Estella, G.S., and
defendant lived with her family when she was six years old. Estella and defendant’s son,
Brian, had not yet been born when they moved into the house. One day, G.S. and M.C.
arrived home from school and only defendant was present. At some point, M.C. went
into G.S.’s room looking for her. G.S. shared the room with defendant and Estella. G.S.
was not there, having used the sliding glass door to go outside. However, defendant was
11.
in the room. He took down M.C.’s pants, put his fingers inside her vagina, and moved
them around. She never told anyone.
M.C. also described when defendant touched her vagina a second time, several
months later. M.C. and her sister, I.C., accompanied Estella, defendant, and G.S. to a
lake where they went swimming. M.C. thought that Brian might have been there, but she
was not sure. Defendant joined her in the water and again put his fingers into her vagina.
M.C. did not tell anyone. M.C. testified that “at the time [Estella, G.S., defendant, and
Brian] moved out of [her] house” and she “just stopped going to their house after that.
[She] wouldn’t go there.”
When M.C. was 14 years old, in July, she told the police about these incidents.
She had spoken of them to her older cousin, Daisy, who then told M.C.’s sister, Livoria,
and Livoria contacted the police the following day. Daisy believed that if defendant had
touched M.C., he most likely also touched G.S., and Daisy arranged to talk to G.S.
However, M.C. did not discuss the incidents with G.S.
D. Testimony of G.S.’s Cousin I.C. (count 16)
M.C.’s sister, I.C., was approximately seven years old when she first felt
uncomfortable around defendant because of the way he stared at her. When she was 9 or
10 years old, she stayed at G.S.’s house and defendant tried to touch her.26 I.C. was
entering the bathroom when defendant prevented her from closing the door. She left the
bathroom and defendant followed her into the kitchen where he attempted to pull down
her pants. She held onto her pants and defendant grabbed her hands so he could pull
them down. Defendant promised I.C. that if she let him pull down her pants, he would
buy her whatever she wanted. I.C. was able to get away from defendant.
26 I.C. testified that she stayed at G.S.’s house for one week. Estella and G.S. testified that
they did not remember I.C. ever staying at their house for that length of time.
12.
I.C. told her parents that she did not want to return to G.S.’s house but did not tell
them the reason. I.C. did not tell anyone about the incident until she was 13 years old
when she told her cousin, Daisy, and the next day, the police. I.C. did not discuss this
incident with M.C., and while I.C. knew M.C. never wanted to go to G.S.’s house, she
did not know the reason.
II. Defense Evidence
Lola Yarbrough27 worked as a public health nurse, and in July, defendant was her
patient. As part of her duties, Lola would take medication to defendant and watch him
take it. Lola arrived at defendant’s residence Mondays through Thursdays, at
approximately 6:45 a.m. (before he left for work at 7:00 a.m.) and would leave after 5 or
10 minutes. During the visits, she stayed just inside the residence by the front door. She
last visited defendant on July 18 and 19.
DISCUSSION
I. Sufficiency of the Evidence as to counts 5 and 12
A. Lewd Act Upon a Child Under 14 Years of Age (count 5)
Defendant argues that the evidence is insufficient to support his conviction on
count 5 because the prosecution failed to present evidence that G.S. was under 14 years
of age at the time. The People agree. We have reviewed the record and accept this
concession.
1. Background
Defendant was charged in count 5 with committing a lewd act upon a child under
14 years of age, “to wit, mouth to penis,” in violation of section 288, subdivision (a).
(Capitalization omitted.) During closing argument, the prosecutor explained to the jury
that count 5 applied to G.S.’s testimony that defendant forced G.S. to put her mouth on
27 Because another witness has the same surname, we refer to Lola Yarbrough by her first
name. No disrespect is intended.
13.
his penis approximately 10 times. During this testimony, the prosecutor asked G.S.,
“And was at least one of those times before you turned 14 years old?” G.S. replied, “I
don’t remember.” The record contains no additional testimony regarding G.S.’s age
when the act charged in count 5 occurred.
2. Applicable Law and Standard of Review
In reviewing the sufficiency of evidence to support a conviction, we examine the
entire record and draw all reasonable inferences therefrom in favor of the judgment to
determine whether it discloses substantial credible evidence from which a reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt. (People v. Brooks
(2017) 3 Cal.5th 1, 57.) We do not redetermine the weight of the evidence or the
credibility of witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60; People v. Young
(2005) 34 Cal.4th 1149, 1181 [“Resolution of conflicts and inconsistencies in the
testimony is the exclusive province of the trier of fact.”].) We must accept logical
inferences that the trier of fact might have drawn from the evidence although we would
have concluded otherwise. (People v. Streeter (2012) 54 Cal.4th 205, 241, overruled on
other grounds as stated in People v. Harris (2013) 57 Cal.4th 804, 834.) “If the
circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is
not warranted simply because the circumstances might also reasonably be reconciled with
a contrary finding.” (Albillar, at p. 60.) “Moreover, unless the testimony is physically
impossible or inherently improbable, testimony of a single witness is sufficient to support
a conviction.” (Young, at p. 1181.)
To prove that defendant is guilty of committing a lewd or lascivious act upon a
child under 14 years of age, in violation of section 288, subdivision (a), the People were
required to prove that: (1) defendant willfully touched any part of a child’s body either
on the bare skin or through the clothing; (2) defendant committed the act with the intent
of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or
14.
the child; and (3) the child was under 14 years of age at the time of the act. (CALCRIM
No. 1110.)
3. Analysis
In this case, the only evidence regarding G.S.’s age at the time defendant made her
place her mouth on his penis was her testimony that she could not recall whether this
happened before she turned 14 years old. As the evidence is insufficient to prove beyond
a reasonable doubt that the crime occurred before G.S. was 14 years old, we agree that
we must reverse the conviction. (People v. Mejia (2007) 155 Cal.App.4th 86, 97.)
B. Sexual Penetration (count 12)
Defendant argues that the prosecution’s evidence that he penetrated G.S. with his
penis is insufficient to support his conviction on count 12, forcible sexual penetration of a
child 14 years of age or older with a foreign object (§ 289, subd. (a)(1)(C)), because a
penis cannot be a foreign object (except under circumstances not applicable here). The
People agree. We have reviewed the record and accept this concession.
The People argue, however, that we may find defendant guilty of sexual battery
(§ 243.4, subd. (a)) as a lesser included offense. Defendant argues that sexual battery
requires contact with the victim’s skin, an element not necessarily found by the jury’s
verdict of guilt as to sexual penetration, and that section 243.4, subdivision (g) defines
sexual battery in such a way as to exclude acts defined as rape (§ 261) and sexual
penetration (§ 289). We do not decide whether forcible sexual battery is a lesser included
offense of sexual penetration when the charging instrument identifies the foreign object
as a penis because we unquestionably find that assault of a person under 18 years of age
with intent to commit rape (§ 220) is a lesser included offense in these circumstances.
We conclude that application of the accusatory pleading test permits us to exercise our
discretion to reduce defendant’s conviction on count 12 to assault of a person under 18
15.
years of age with intent to commit rape (§ 220, subd. (a)(2)) and will remand for
resentencing.
1. Background
Count 12 of the information charged defendant with the following:
“On or about and between October 5, 2015 and July 20, 2017, in the
County of Tulare, the crime of SEXUAL PENETRATION BY FOREIGN
OBJECT-MINOR VICTIM OVER 14, TO WIT, PENIS TO VAGINA, in
violation of PENAL CODE SECTION 289A1C, a FELONY, was
committed by PEDRO SALINAS, who unlawfully committed an act of
sexual penetration against the will of G.S. who was a minor over the age of
14 years, by means of force, violence, duress, menace and fear of
immediate and unlawful bodily injury on G.S. and another person.”
During closing argument, the prosecutor explained to the jury that count 12 applied to
G.S.’s testimony that defendant forced his penis part way into G.S.’s vagina on July 18,
the day before defendant’s conduct was reported to the police.
G.S. testified that the day before reporting the sexual abuse, defendant told G.S.
his plan to gradually insert his penis into her vagina to expand her vagina so that by the
time she turned 18 years old, he would be able to fully insert his penis. Defendant then
inserted his penis into her vagina, although it did not go all the way inside.28 Defendant
also put his finger into G.S.’s anus before he inserted his penis. He then rubbed his penis
between her legs until sperm came out.
2. Applicable Law and Standard of Review
a. Standard of Review
We set forth the applicable law and standard of review for challenges to the
sufficiency of the evidence in part I.A.2. of the Discussion. (Ante, at p. 14.)
28 Although this act would have provided sufficient evidence of sexual penetration, it was
not the act alleged in count 12 and was not mentioned during the prosecutor’s closing argument.
16.
b. Sexual Penetration
To prove that defendant is guilty of committing sexual penetration by force, in
violation of section 289, subdivision (a)(1)(C), the People were required to prove that:
(1) defendant committed an act of sexual penetration with another person; (2) the
penetration was accomplished by using a foreign object, or substance, instrument, device,
or unknown object; (3) the other person did not consent to the act; and (4) defendant
accomplished the act by force, violence, duress, menace, or fear of immediate and
unlawful bodily injury to another person. (CALCRIM No. 1045.) Section 289 defines a
foreign object, substance, instrument, or device as including any part of the body except a
sexual organ. (§ 289, subd. (k)(2).) A penis can be an unknown object only if it is not
known what object actually penetrated the opening. (Id., subd. (k)(3); CALCRIM
No. 1045.)
c. Modification of Verdict
“We have ‘long recognized that under Penal Code sections 1181, subdivision (6),
and 1260, an appellate court that finds that insufficient evidence supports the conviction
for a greater offense may, in lieu of granting a new trial, modify the judgment of
conviction to reflect a conviction for a lesser included offense.’ [Citations.] We have
applied two tests in determining whether an uncharged offense is necessarily included
within a charged offense: the ‘elements’ test and the ‘accusatory pleading’ test.
[Citation.] The elements test is satisfied if the statutory elements of the greater offense
include all of the statutory elements of the lesser offense, such that all legal elements of
the lesser offense are also elements of the greater.” (People v. Bailey (2012) 54 Cal.4th
740, 748, fn. omitted (Bailey).) “Under the accusatory pleading test, a lesser offense is
included within the greater charged offense if the facts actually alleged in the accusatory
pleading include all of the elements of the lesser offense.” (Ibid.) “ ‘Courts should
consider the statutory elements and accusatory pleading in deciding whether a defendant
17.
received notice, and therefore may be convicted, of an uncharged crime .…’ ” (Id. at
p. 751.)
Our authority to reduce a conviction to a lesser included offense is based on
section 1181, subdivision (6), which states that “if the evidence shows the defendant to be
not guilty of the degree of the crime of which he was convicted, but guilty of a lesser
degree thereof, or of a lesser crime included therein, the court may modify the verdict,
finding or judgment accordingly without granting or ordering a new trial .…” (§ 1181,
subd. (6).) Similarly, section 1260, states that “[t]he court may … reduce the degree of
the offense … or the punishment imposed, and may set aside, affirm, or modify any or all
of the proceedings subsequent to, or dependent upon, such judgment or order, and …
may, if proper, remand the cause to the trial court for such further proceedings as may be
just under the circumstances.” (§ 1260; see People v. Navarro (2007) 40 Cal.4th 668,
671 (Navarro).) The statute’s use of the word “may” indicates that a court’s authority to
modify a judgment of conviction to reflect a lesser included offense is permissive, not
mandatory. (People v. Hamilton (2018) 30 Cal.App.5th 673, 685; see People v. Hill
(1953) 116 Cal.App.2d 212, 216 [“the statute is merely permissive”].)
To modify a judgment under sections 1181, subdivision (6), and 1260, we must
“decide whether the jury, in finding defendant guilty … necessarily found all of the
elements of [the lesser included offense]. In modifying a judgment under sections 1181,
subdivision (6), and 1260, an appellate court ‘merely brings the jury’s verdict in line with
the evidence presented at trial’ [Citation.] In other words, an appellate court may make a
modification, ‘ “not by finding or changing any fact, but by applying the established law
to the existing facts as found by the jury.” ’ ” (Bailey, supra, 54 Cal.4th at p. 752.)
3. Analysis
Section 289, subdivision (a) was enacted in 1978 to correct a deficiency in existing
law as forcible rape, oral copulation, and sodomy were subject to fairly severe penalties
18.
but did not include the forcible insertion of objects into a victim’s vagina or anus, which
was punishable only as a battery under section 242. (People v. Kusumoto (1985)
169 Cal.App.3d 487, 491, disapproved on other grounds as recognized in People v.
McCann (2019) 41 Cal.App.5th 149, 157.) “According to a report prepared for the
Senate Committee on Judiciary, section 289[, subdivision ](a) was intended to correct the
discrepancy by making the punishment for forcible rape-by-object the same as that for
rape. In 1980, Assembly Bill No. 3420 was passed in order to increase the penalties for
object rape to correspond to those for all other forcible sexual assaults. (Stats. 1980,
ch. 409, § 1, p. 798.)” (Kusumoto, at p. 491.) Therefore, section 289, subdivision (k)(2)
excludes a sexual organ from the definition of a foreign object because other statutes
address crimes committed by using a sexual organ.
In this case, the information charged defendant with using his penis to penetrate
G.S.’s vagina against her will by means of force, violence, duress, menace, and fear.
However, penetration of a vagina with a penis is “sexual intercourse,” and an act of
sexual intercourse against a person’s will by force is rape in violation of section 261,
subdivision (b). (People v. Holt (1997) 15 Cal.4th 619, 676 [“ ‘[A]ny penetration of the
male sex organ into the female sex organ, however, slight, constitutes an engaging in an
act of sexual intercourse’ ”]; CALCRIM No. 1000.) Despite citation to section 289, the
charging language of count 12 was sufficient to charge a violation of rape pursuant to
section 261, subdivision (a). (People v. Thomas (1987) 43 Cal.3d 818, 826 [recognizing
that valid accusatory pleading does not require a specific statutory enumeration, that
specific allegations of accusatory pleading constitute measuring unit for determining
what offenses are included in a charge, and that even a reference to the wrong statute has
been viewed of no consequence]; People v. Eppinger (1894) 105 Cal. 36, 38–39
[information describing crime as forgery (§ 470) immaterial in light of specific acts
alleged describe crime under fictitious check statute (§ 476)].)
19.
Had the prosecutor requested the jury be instructed on the elements of rape, we are
confident that under the facts of this case, the jury’s verdict on count 12 would have not
changed. However, the prosecutor proceeded to conviction, arguing facts that legally
could not support a violation of section 289. Neither section 1181 nor section 1260
permit us to substitute the crime of rape for that of sexual penetration because the jury
was not instructed as to rape or asked to render a verdict as to rape. We may, however,
decide whether the jury, in finding defendant guilty of sexual penetration, necessarily
found all of the elements of a lesser included offense.
a. Sexual Battery as a Lesser Included Offense
The People argue that forcible sexual battery (§ 243.4, subd. (a)) is a lesser
included offense of count 12 under the accusatory language test, relying upon People v.
Ortega (2015) 240 Cal.App.4th 956, 967–971 (Ortega). Section 243.4, subdivision (a)
proscribes the touching of an intimate part of another person while that person is
unlawfully restrained, and if the touching is against the will of the person touched and is
for the purpose of sexual arousal, sexual gratification, or sexual abuse. In Ortega, the
defendant argued that sexual battery was a lesser included offense of forcible sexual
penetration under the statutory elements test because forcible sexual penetration could
not be committed without also committing sexual battery. Ortega agreed that penetration
by “ ‘force, violence, duress, menace, or fear of immediate and unlawful bodily injury’ ”
as required by section 289 could not occur without the victim also being unlawfully
restrained as required by section 243.4. (Ortega, at p. 966.) Ortega similarly agreed that
“ ‘sexual,’ as used in the phrase ‘sexual arousal, gratification, or abuse’ in section 289,
subdivision (k) (defining ‘sexual penetration’)” had the same meaning as the “ ‘sexual
arousal, sexual gratification, or sexual abuse’ element of sexual battery.” (Ibid.)
However, sexual battery was not a lesser included offense under the elements test
because “physical contact” required that the offender’s body contact the victim’s skin
20.
either directly or through the offender’s clothing (§ 243.4, subd. (f)) while sexual
penetration included penetration by any foreign object, substance, instrument, or device,
or by any unknown object (§ 289, subd. (k)(1)). Thus, sexual penetration could be
committed without committing sexual battery where the perpetrator accomplished it by
use of something other than a body part.
Having found sexual battery was not a lesser included offense of sexual
penetration under the elements text, Ortega next applied the accusatory pleading test of
People v. Marshall (1957) 48 Cal.2d 394 (Marshall). (Ortega, supra, 240 Cal.App.4th at
p. 967.) Marshall concluded that the specifically charged allegations contained in the
accusatory pleading, rather than the statutory definition of the charged offense,
constituted the measuring unit for determining what offenses are necessarily included in
the charge. (Marshall, at p. 405.) In Marshall, the information alleged that the defendant
committed robbery (§ 211) by willfully, unlawfully, feloniously, and forcibly taking an
automobile from the immediate presence of another person. (Marshall, at p. 396.) After
a bench trial, the court found the defendant guilty of taking another’s vehicle without
consent, under former Vehicle Code section 503. (Marshall, at p. 396.) The defendant
argued that the statutory definition of robbery did not necessarily include offenses
prohibited under former Vehicle Code section 503. (Marshall, at p. 396.) In concluding
that the lesser included offense inquiry was determined by the specific allegations in the
accusatory pleading, as opposed to the statutory elements of robbery, the court stressed
that the defendant was put on notice by the information that he should be prepared to
defend against a showing that he took the automobile. (Id. at p. 405.)
Ortega similarly concluded that if the information had identified the defendant’s
finger as the means of penetration in the same way the information in Marshall identified
the automobile as the victim’s property, the information would have contained the
elements of a felony sexual battery, and sexual battery instructions would have been
required as a lesser included offense. (Ortega, supra, 240 Cal.App.4th at pp. 966–968.)
21.
In Ortega, however, the information did not allege the means the defendant used to
violate the statute. In finding that sexual battery was a lesser included offense using the
accusatory pleading test, Ortega expanded its analysis to include the evidence adduced at
the preliminary hearing.29 (Id. at p. 969.)
Defendant makes additional arguments against sexual battery being considered a
lesser included offense of sexual penetration not addressed by Ortega: (1) sexual battery
requires contact with the victim’s skin, an element not alleged in count 12 nor necessarily
found by the jury’s verdict of guilt as to sexual penetration; and (2) section 243.4,
subdivision (g)(2) defines sexual battery to exclude the crimes defined in sections 261
(rape) and 289 (sexual penetration).
Addressing defendant’s first argument, count 12 alleged that defendant penetrated
G.S.’s vagina using his penis, and we conclude that this allegation is sufficient to allege
defendant touched G.S.’s bare skin. Defendant also argues that the jury’s verdict as to
count 12 was not required to find that defendant penetrated G.S.’s vagina without any
clothing or barrier to her skin. However, as to the act alleged in count 12, G.S. testified
that the day before reporting the sexual abuse, defendant inserted his penis into her
vagina and rubbed his penis between her legs until sperm came out. That G.S. was
unclothed at the time of defendant touched her is evidenced by G.S.’s testimony that she
used toilet paper to wipe the sperm from her body. In addition, G.S. and Yarbrough both
testified that G.S. participated in an examination from which Yarbrough obtained swabs
29 Both parties recognize that Ortega has been criticized for expanding the accusatory
pleading test to look beyond the language of the information and permit consideration of
preliminary hearing testimony. (People v. Alvarez (2019) 32 Cal.App.5th 781, 787–790; People
v. Munoz (2019) 31 Cal.App.5th 143, 157–158; People v. Macias (2018) 26 Cal.App.5th 957,
964 [“We decline to adopt Ortega’s ‘expanded accusatory pleading test’ because it is contrary to
[People v.]Montoya [(2004) 33 Cal.4th 1031]. As explained by the Supreme Court in Montoya:
‘Consistent with the primary function of the accusatory pleading test—to determine whether a
defendant is entitled to instruction on a lesser uncharged offense—we consider only the pleading
for the greater offense.’ ”].)
22.
of G.S.’s vagina, rectal area, and external genitalia. The rectal and external genitalia
swab tested positive for p30, a protein found in seminal fluid, again evidencing that
G.S.’s bare skin was touched by defendant during the sexual abuse.
Defendant’s second argument, that crimes defined in sections 261 and 289 are
excluded from the definition of sexual battery is less straightforward. (See § 243.4.) We
could find no case explaining the effect of this statute. Regarding the instant case,
defendant’s sexual abuse of G.S., as we have concluded, is not the crime of sexual
penetration in violation of section 289 because it was not committed using a foreign
object. However, count 12 alleges that defendant forcibly penetrated G.S.’s vagina, some
of the elements of rape. Given that defendant has not been convicted of rape,
section 243.4, subdivision (g)(2) does not necessarily preclude us from modifying
defendant’s conviction of count 12 to the lesser included offense of sexual battery in
violation of section 243.4, subdivision (a). However, we decline to do so in light of our
conclusion that assault of a person under 18 years of age with intent to commit rape
(§ 220, subd. (a)(2)) is a lesser included offense of count 12 as discussed below.
(Navarro, supra, 40 Cal.4th at p. 681 [“However, it seems logical that, where there are
multiple lesser included offenses supported by the evidence at trial, a court exercising its
discretion to modify the judgment pursuant to these provisions should choose the offense
with the longest prescribed prison term so as to effectuate the fact finder’s apparent intent
to convict the defendant of the most serious offense possible.”].)
b. Assault with Intent to Commit Rape as a Lesser Included
Offense
We asked the parties for supplemental briefing as to whether assault of a person
under 18 years of age with intent to commit rape (§ 220, subd. (a)(2)) is a lesser included
offense of count 12 in light of its language alleging that defendant forcibly penetrated
G.S.’s vagina against her will while she was a minor over the age of 14 years. Both
parties argue that we may not reduce the charge because the information failed to allege
23.
that G.S. was not defendant’s spouse. However, as we discuss below, assault with intent
to commit rape includes both spousal and nonspousal rape, and the victim’s status is not
required to be alleged in the information. We conclude that application of the accusatory
pleading test permits us to exercise our discretion to reduce defendant’s conviction on
count 12 to assault of a person under 18 years of age with intent to commit rape (§ 220,
subd. (a)(2)), and we will remand for resentencing.
Marshall concluded that the specifically charged allegations contained in the
accusatory pleading, rather than the statutory definition of the charged offense,
constituted the measuring unit for determining what offenses are necessarily included in
the charge. (Marshall, supra, 48 Cal.2d 394 at p. 405.) Under the accusatory pleading
test, we determine whether the perpetrator can commit the greater included offense
without necessarily committing the lesser included offense as a matter of fact in view of
the allegations. (People v. Sanchez (2001) 24 Cal.4th 983, 995, disapproved on other
grounds in People v. Reed (2006) 38 Cal.4th 1224, 1228–1229.)
Section 220, subdivision (a)(2) provides: “Except as provided in
[section 220, ]subdivision (b), any person who assaults another person under 18 years of
age with the intent to commit rape, sodomy, oral copulation, or any violation of
Section 264.1, 288, or 289 shall be punished by imprisonment in the state prison for five,
seven, or nine years.” (§ 220, subd. (a)(2).) “Section 240—unchanged since its initial
enactment in 1872—defines assault as ‘an unlawful attempt, coupled with a present
ability, to commit a violent injury on the person of another.’ ” (People v. Williams
(2001) 26 Cal.4th 779, 784.) Despite use of the term “violent injury,” assault only
requires an intentional act and actual knowledge of those facts sufficient to establish that
the act by its nature will probably and directly result in the application of physical force
against another. (Id. at p. 790.) Our Supreme Court has also described it as an “act that
by its nature will probably and directly result in injury to another, i.e., a battery.… The
evidence must only demonstrate that the defendant willfully or purposefully attempted a
24.
‘violent injury’ or ‘the least touching,’ i.e., ‘any wrongful act committed by means of
physical force against the person of another.’ ” (People v. Colantuono (1994) 7 Cal.4th
206, 214.) “ ‘[A]ny harmful or offensive touching constitutes an unlawful use of force or
violence’ ” and thus is a battery. (People v. Pinholster (1992) 1 Cal.4th 865, 961,
disapproved on other grounds People v. Williams (2010) 49 Cal.4th 405, 459; see People
v. Bradbury (1907) 151 Cal. 675, 676–677 [for assault with intent to commit rape,
“ ‘ “[t]he kind of physical force is immaterial” ’ ” and may “ ‘ “consist in the taking of
indecent liberties with a woman, or laying hold of and kissing her against her will” ’ ”].)
Our Supreme Court has recognized that assault with intent to commit rape is a
lesser included offense of rape. (People v. Chavez (1894) 103 Cal. 407, 407–408 [“it
may be conceded that an assault with intent to commit rape, as well as a simple assault,
are included [in rape]”]; see People v. Ramirez (1969) 2 Cal.App.3d 345, 353; In re
Jose M. (1994) 21 Cal.App.4th 1470, 1477 [“[o]ne charged with rape by force or violence
may be found guilty of assault with intent to commit rape”]; but see People v. Leal (2009)
180 Cal.App.4th 782, 793 [holding assault with intent to commit rape and sexual
penetration are not lesser included crimes of rape and sexual penetration by artifice,
pretense, or concealment since the latter have no element of force].)
Similarly, we conclude that assault with intent to commit sexual penetration is a
lesser included offense of forcible sexual penetration. As we have noted, section 220,
subdivision (a)(2) prohibits assaulting a person under 18 years of age “with the intent to
commit rape, sodomy, oral copulation, or any violation of Section ... 289.” (§ 220,
subd. (a)(2).) Violations of section 289 include sexual penetration of a minor 14 years of
age or older “by means of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury.” (§ 289, subd. (a)(1)(C).) As previously noted, an assault is an
unlawful attempt, coupled with a present ability, to commit a harmful or offensive
touching. (See § 240.) “ ‘[A]ny harmful or offensive touching constitutes an unlawful
use of force or violence’ ” and is thus a battery. (People v. Pinholster, supra, 1 Cal.4th at
25.
p. 961; see People v. Bradbury, supra, 151 Cal. 675 at pp. 676–677.) We conclude that
an act of attempting to sexually penetrate someone using force, violence, duress, or
menace would be both a harmful and offensive touching. The trial court in this case also
instructed the jury that “[a]ssault with intent to commit sexual penetration is a lesser-
included offense to the charge[] in Count[] 12.”
While assault with intent to commit rape is not a lesser included offense of
forcible sexual penetration, we conclude that it is a lesser included offense of sexual
penetration as alleged in the information because the information alleged that defendant
used his penis to forcibly penetrate G.S.’s vagina. When the jury convicted defendant of
forcibly using his penis to penetrate G.S.’s vagina, the jury necessarily found that the
defendant committed an act that likely would have resulted in a harmful and offensive
touching of G.S. and that defendant intended to use his penis to penetrate G.S.’s vagina.
The parties argue that the information failed to allege that G.S. was not
defendant’s spouse and, therefore, we cannot modify count 12 to assault of a minor with
intent to commit rape or sexual penetration. However, in 1879 our Supreme Court held
that an information charging assault with intent to commit rape need not allege that the
victim was not the defendant’s spouse. (People v. Estrada (1879) 53 Cal. 600, 601.)
Furthermore, “[u]nder the accusatory pleading test, a lesser offense is included
within the greater charged offense if the facts actually alleged in the accusatory pleading
include all of the elements of the lesser offense.” (Bailey, supra, 54 Cal.4th at p. 748,
italics added.) As we have discussed, the information in this case alleged that defendant
committed the crime of sexual penetration of a minor when he used his penis to penetrate
G.S.’s vagina, against her will and by means of force, violence, duress, menace, and fear
of immediate and bodily injury on G.S. These facts are sufficient to establish that
defendant assaulted G.S. and intended to use his penis to sexually penetrate her vagina by
use of force, violence, duress, menace, and fear of immediate bodily injury, a crime under
section 220, subdivision (a)(2).
26.
Defendant relies on two cases in support of his argument that the information is
required to specifically allege that G.S. was not defendant’s spouse. In People v. Miles
(1908) 9 Cal. App. 312, the defendant was charged with rape in violation of section 261.
(Miles, at p. 313.) The information failed to allege specifically that the woman was not
the defendant’s wife, and the court dismissed the information after concluding that all
elements of an offense must be alleged in the charging document. (Ibid.) In People v.
Everett (1909) 10 Cal. App. 12, the court applied Miles to an information that charged
assault with intent to commit rape and then described the elements of the crime, but
omitted a statement that the victim was not the spouse of the defendant. (Everett, at
pp. 13–14.) While the information would have been sufficient had it merely charged that
the defendant assaulted the victim with the intent to commit rape, the court found the
information defective because it chose to set forth the elements of rape and then did so
incompletely. (Ibid; but see People v. Bonfanti (1919) 40 Cal. App. 614, 615 [failure to
allege victim of assault with intent to commit rape was not defendant’s spouse would not
result in dismissal in light of recent amendment to California Constitution that prevented
setting aside a conviction based upon any matter of pleading or error of procedure unless
the court found a miscarriage of justice].)
In addition, the rules of pleading have changed significantly since Everett and
Miles were decided in 1909 and 1908, respectively. Section 951, as last amended in 1927
(Stats. 1927, ch. 613, § 1), sets forth the form of an information and permits the name of
the crime and a statement of the “act or omission, as for example, ‘murdered C.D.’ ”
(§ 951.) Section 952, as last amended in 1929 (Stats. 1929, ch. 159, § 1), provides that
each count of an information shall contain “a statement that the accused has committed
some public offense therein specified. Such statement may be made in ordinary and
concise language without any technical averments or any allegations of matter not
essential to be proved. It may be in the words of the enactment describing the offense or
27.
declaring the matter to be a public offense, or in any words sufficient to give the accused
notice of the offense of which he is accused.” (§ 952.)
Our Supreme Court explained that the 1929 amendment to section 952 permits
pleading the conclusion that a defendant murdered someone without pleading the words
of section 187 that define murder. (People v. Jordan (1955) 45 Cal.2d 697, 709; see
People v. Quinn (1949) 94 Cal.App.2d 112, 115–116 [upholding robbery conviction
when information failed to allege all elements of offense and distinguishing older cases
decided before § 951 was adopted].) Therefore, a valid information need not allege the
elements of the offense.
We also find it significant that when the cases relied upon by defendant were
decided, California did not criminalize rape committed on a spouse and, therefore,
defendant would not have committed any crime if G.S. was his spouse. In 1979, the
Legislature enacted former section 262, which addressed rape of a spouse. (Former
§ 262, added by Stats. 1979, ch. 994, § 2, p. 3384.)30 Thus, section 220, subdivision (a)
encompasses “rape” as defined in both former section 262 (as to one’s spouse) and
section 261 (a nonspouse victim). (People v. Hillard (1989) 212 Cal.App.3d 780, 783–
784 [“It is evident that the Legislature added [former] Penal Code section 262 for the sole
purpose of eliminating the marital exemption for forcible spousal rape, and not to define
a new and separate offense, apart from rape by a stranger, of spousal rape.”].) Because
section 220, subdivision (a)(2) encompasses both rape of a spouse and a nonspouse, it
does not matter that the information fails to specify whether G.S. was defendant’s spouse.
30 Former section 262 was repealed effective January 1, 2022 (Stats. 2021, ch. 626, § 20),
and section 261 applies to all rape victims regardless of their relationship to their rapist except in
one circumstance. (See Legis. Counsel’s Dig., Assem. Bill No. 1171 (2020–2021 Reg. Sess.)
[“This bill would repeal the provisions relating to spousal rape and make conforming changes,
thereby making an act of sexual intercourse accomplished with a spouse punishable as rape if the
act otherwise meets the definition of rape, except that sexual intercourse with a person who is
incapable of giving legal consent because of mental disorder or developmental or physical
disability would not be rape if the 2 people are married.”].)
28.
(See People v. Hillard, at p. 783.) Further, as we discussed above, by specifically
identifying the victim of the crime, the information provided defendant adequate notice
of his relationship to the victim.
We will modify the judgment to reflect a conviction for assault of a person under
18 years of age with intent to commit rape in violation of Penal Code section 220,
subdivision (a)(2) and remand for resentencing.
The reversal of a sentence on one of several counts authorizes the trial court on
remand to consider its discretionary sentencing choices on all counts. “ ‘[U]pon remand
for resentencing after the reversal of one or more subordinate counts of a felony
conviction, the trial court has jurisdiction to modify every aspect of the defendant’s
sentence on the counts that were affirmed, including the term imposed as the principal
term[.]’ ” (People v. Navarro, supra, 40 Cal.4th at p. 681; see also People v. Buycks
(2018) 5 Cal.5th 857, 893 [“when part of a sentence is stricken on review, on remand for
resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can
exercise its sentencing discretion in light of the changed circumstances’ ”].)31
31 Effective September 9, 2010, section 667.61, subdivision(j)(2) was amended to increase
the punishment for specified crimes on a minor under 14 years of age from a term of 15 years to
life to a term of 25 years to life. (Stats. 2010, ch. 219, § 16, p. 1027.) We asked the parties for
supplemental briefing as to whether the trial court erred in sentencing defendant to 15 years to
life on counts 2, 3, 14, and 15 and conclude that it did not. “The federal and state prohibitions
against ex post facto laws apply to any statute that punishes as a crime an act previously
committed which was not a crime when done or that inflicts greater punishment than the
applicable law when the crime was committed.” (People v. Alvarez (2002) 100 Cal.App.4th
1170, 1178.) Defendant’s crimes occurred both before and after the penalty for violating
section 667.61 increased. Where the jury was not instructed to find that an offense occurred on
or after the effective date of the statute and did not, in fact, make such a finding, we consider
whether the evidence “leaves no reasonable doubt” the offense occurred on or after that date.
(People v. Hiscox (2006) 136 Cal.App.4th 253, 261.) The victims’ testimony was not specific
enough to leave no reasonable doubt whether the offenses triggering the increased penalty
occurred on or after September 9, 2010. A reviewing court may not “infer that certain acts
probably occurred after that date” or “hypothesize ... what dates might be attached to certain acts
based on ambiguous evidence.” (Ibid.)
29.
II. Count 8 Should Be Stayed Pursuant to section 654 Because it Involved the
Same Act of Forcible Sodomy as Charged in Count 9
A. Background
G.S. testified that defendant sodomized her approximately 10 to 15 times, but only
once before she turned 14 years old. During closing argument, the prosecutor explained
that this conduct was the basis of count 8, a lewd act upon a child under 14 years of age
(§ 288, subd. (a)). She also argued the single time defendant sodomized G.S. before she
was 14 years old as the basis of the crime of aggravated sexual assault of a child under
14 years of age by forcible sodomy as charged in count 9 (§ 269, subd. (a)(3)).
B. Applicable Law
Former section 654 provided, in relevant part, “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” (Former § 654,
subd. (a).)32 The statute “expressly prohibits separate punishment for two crimes based
on the same act, but has been interpreted to also preclude multiple punishment for two or
more crimes occurring within the same course of conduct pursuant to a single intent.”
(People v. Vargas (2014) 59 Cal.4th 635, 642; accord, People v. Harrison (1989)
48 Cal.3d 321, 335.) Determining “[w]hether a defendant may be subjected to multiple
punishment under section 654 requires a two-step inquiry.” (People v. Corpening (2016)
2 Cal.5th 307, 311.) “We first consider if the different crimes were completed by a
‘single physical act.’ [Citation.] If so, the defendant may not be punished more than
once for that act. Only if we conclude that the case involves more than a single act—i.e.,
32 Section 654 has been amended since defendant was sentenced, but the language “in no
case shall the act or omission be punished under more than one provision” remains unchanged.
(§ 654.)
30.
a course of conduct—do we then consider whether that course of conduct reflects a single
‘intent and objective’ or multiple intents and objectives.” (Ibid.)
“Whether a defendant will be found to have committed a single physical act for
purposes of section 654 depends on whether some action the defendant is charged with
having taken separately completes the actus reus for each of the relevant criminal
offenses.” (People v. Corpening, supra, 2 Cal.5th at p. 313.) The relevant inquiry is
whether “ ‘a separate and distinct act can be established as the basis of each
conviction.’ ” (People v. Beamon (1973) 8 Cal.3d 625, 637, overruled on another ground
in People v. Mendoza (2000) 23 Cal.4th 896, 908; accord, Corpening, at p. 316.)
C. Analysis
In the present case, defendant argues that his convictions for lewd acts upon a
child and aggravated sexual assault of a child by forcible sodomy are based on the single
time that defendant sodomized G.S. before she turned 14 years old. The People agree
that section 654 requires the execution of the sentence on count 8 be stayed. We agree
that defendant cannot be sentenced on both count 8 and count 9 and that one of these
sentences must be stayed. We will remand to the trial court with directions to stay the
sentence on either count 8 or count 9.
At the time of sentencing, former section 654, subdivision (a), required that a
defendant who committed an act punishable by two or more provisions of law to be
punished under the provision that provided for the longest possible term. (Stats. 1997,
ch. 410, § 1.) Effective January 1, 2022, Assembly Bill No. 518 (2021–2022 Reg. Sess.)
amended section 654, subdivision (a), to permit an act or omission punishable under two
or more provisions of law to “be punished under either of such provisions.” (§ 654,
subd. (a), as amended by Stats. 2021, ch. 441, § 1.) Thus, under the new law, a trial court
now has the discretion to punish a defendant under any of the applicable laws.
31.
Under In re Estrada (1965) 63 Cal.2d 740, “[w]hen the Legislature has amended a
statute to reduce the punishment for a particular criminal offense, we will assume, absent
evidence to the contrary, that the Legislature intended the amended statute to apply to all
defendants whose judgments are not yet final on the statute’s operative date.” (People v.
Brown (2012) 54 Cal.4th 314, 323, fn. omitted.) Where an ameliorative statute like this
one is retroactive, a remand is appropriate unless “the record ‘clearly indicate[s]’ that the
trial court would have reached the same conclusion ‘even if it had been aware that it had
such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
Because we are remanding for resentencing due to our modification of the
conviction on count 12, at resentencing the trial court will have the opportunity to
exercise its discretion to apply section 654 to stay execution of the sentence on either
count 8 or 9 under the new law.
III. Defendant Was Not Deprived of His Sixth Amendment Right to a Unanimous
Jury by the Trial Court’s Instructions to the Jury After Substituting an
Alternate Juror
Defendant argues that the trial court deprived him of his state and federal rights to
a unanimous jury when it substituted an alternate juror after the first day of deliberations.
The People initially responded and argued that the error was merely one of state law.
After the People filed their responding brief, the United States Supreme Court held that
the Sixth Amendment right to a unanimous jury is applicable to the states through the
Fourteenth Amendment. (Ramos v. Louisiana (2020) ___ U.S. ___, ___ [140 S.Ct. 1390,
1391] (Ramos).) Defendant relies upon Ramos to argue that the trial court’s instructional
error is a structural error and not subject to harmless error review. We ordered
supplemental briefing by the People as to this issue. We conclude the trial court did not
err. Even if the trial court did err, we conclude the error is subject to review for
harmlessness and apply the harmless error test for federal constitutional error—whether it
appears beyond a reasonable doubt that the error complained of did not contribute to the
32.
verdict obtained—to the trial court’s instructional error in substituting the alternate juror.
(See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
A. Background
Prior to the jury deliberating, the trial court advised the alternate jurors:
“To my alternate jurors, you two at the end, the jury will soon begin
deliberations, but you are still alternate jurors and bound by my earlier
instructions on your conduct. Do not talk about the case or about any of the
people or any subject involved with anyone, not even family, friends, not
even with each other. Don’t have any contact with the deliberating jurors.
Do not decide how you would vote if you were deliberating. Do not form
or express any opinions about the issues in this case unless you are
substituted in as one of the deliberating jurors.
“You two, as long as I have a phone number where I can reach you,
that you can come back and be back within an hour, you are free to go.
You can wait around if you want to do that this afternoon. That’s fine, but
you just can’t participate in the deliberations.”
The jury began deliberations on June 11, 2019, at approximately 1:30 p.m. At
4:37 p.m., the trial court brought the jury to the courtroom to ascertain whether to send
them home until the next day. The court inquired as to whether the jury’s deliberations
might be resolved in the next 15 or 20 minutes. One juror replied, “We are on number 11
for the counts. [¶] We definitely need more than 20 minutes. [¶] We’re going to ask for
read back.” The juror later added, “I don’t think we’re going to take that much longer.
[¶] We are putting a request for Adrian Mendoza’s testimony, though.”33 The court
commented that the court reporter could read back that testimony the following day in the
jury room. After the court instructed the jurors that they were being sent home for the
day, one juror reminded the court that the juror was scheduled to fly the next day and the
court excused that juror. The court then explained to the remaining 11 jurors:
“One of the things that will happen is when you all get here, I will
read you an instruction. We’ll substitute the [alternate] juror in, but, in
33 Mendoza was the criminalist who testified concerning the DNA test results.
33.
effect, your deliberations have to start all over. It shouldn’t take long for
the [alternate] to get caught up to date.”
The following colloquy then took place:
“JUROR: I know we have to start our deliberation all over. Will we
get to keep our previous deliberations to refer back to them or are they
destroyed?[34]
“THE COURT: You need to make sure that [the alternate] juror is
up to date. Se[e] if that juror can agree. If you start anew, in effect those
verdicts have to be redone.
“JUROR: Okay. If they do agree, they are still hunkeydorie [sic],
correct?
“THE COURT: I can tell you if you want to return those verdicts,
right now we can take those verdicts.[35]
“JUROR: No, he probably wants us to start over.
“THE COURT: Okay. See you tomorrow at 9:00[ a.m].
“[THE PROSECUTOR]: If [the alternate] juror agrees with what
has already been decided on, it’s okay?
“THE COURT: It is.”
34 The juror’s reference to keeping or destroying their “previous deliberations” was not
clarified but appears to refer to completed verdict forms as to the 10 or 11 counts for which they
had completed deliberations (the juror previously advised the court the jury was “on
number 11”).
35 “[W]hen the court is going to discharge a deliberating juror and replace that juror with an
alternate, the court should determine whether any verdicts have been reached before discharging
the juror.… The juror may then be discharged, an alternate seated to replace the juror, and the
newly constituted jury instructed to begin its deliberations anew on any remaining charges and
allegations.” (People v. Garcia (2012) 204 Cal.App.4th 542, 552, italics omitted; see People v.
Thomas (1990) 218 Cal.App.3d 1477, 1485 [trial court did not err in receiving partial verdict
before replacing juror]; People v. Aikens (1988) 207 Cal.App.3d 209, 211 [same]; People v. Cain
(1995) 10 Cal.4th 1, 67–68, overruled on other grounds in People v. Moon (2005) 37 Cal.4th 1,
17.) However, the court is not required to accept partial verdicts under such circumstances.
(People v. Sanborn (2005) 133 Cal.App.4th 1462, 1468.)
34.
The trial court excused the jury until the following day. When proceedings
resumed, the trial court advised the parties that it would need to formally substitute the
alternate juror in and brought the jury into the courtroom. The court then instructed the
jury, reading CALCRIM No. 3575:
“So, ladies and gentlemen of the jury, one of your fellow jurors has
been excused, and you were aware of that yesterday, and our alternate juror
has been selected to join you.
“Do not consider this substitution for any purpose. The alternate
juror must participate fully in the deliberations that lead to any verdict.
“The People and the defendant have a right to a verdict reached only
after full participation of the jurors whose votes determine the verdict. This
right will only be assured if you begin your deliberations again from the
beginning. Therefore, you must set aside and disregard all past
deliberations and begin your deliberations all over again.
“Each of you must disregard your earlier deliberations and decide
this case as if those earlier deliberations had not taken place.
“Now, please return to the jury room and start your deliberations
from the beginning.
“One of the things that was discussed yesterday is that you may want
the testimony of Adrian Mendoza be read. So when you get in there and
you are ready for that, please let me know and I will send [the court
reporter] in to read back that testimony.
“With that in mind, please retire to the jury room and begin your
deliberations. Thank you.”
The jury returned to the jury room to commence deliberations at 9:07 a.m. At
10:03 a.m., the jury sent a question to the court: “May we have Adrian Mendoza’s,
[M.C.]’s, and [G.S.]’s testimonies?” The court reporter entered the jury room at
10:06 a.m. and completed readback of the requested testimony at 11:43 a.m. The jury
submitted a second question to the court at 1:17 p.m.: “Can you better explain the
‘multiple victims’ special allegation?” The court provided a written response to the jury
at 1:30 p.m. At 2:05 p.m., the foreperson informed the bailiff that the jury had reached its
35.
verdicts. After reading the verdicts into the record, the trial court asked, “Ladies and
gentlemen of the jury, are these your verdicts?” The jury responded, “Yes.” Responding
to an inquiry by the trial court, the prosecutor and defense counsel advised they did not
desire to have the court poll the jury.
B. Applicable Law
1. California Constitutional Right to Jury Trial
Section 1089 provides in relevant part:
“If at any time, whether before or after the final submission of the case to
the jury, a juror dies or becomes ill, or upon other good cause shown to the
court is found to be unable to perform his or her duty, or if a juror requests
a discharge and good cause appears therefor, the court may order the juror
to be discharged and draw the name of an alternate, who shall then take a
place in the jury box, and be subject to the same rules and regulations as
though the alternate juror had been selected as one of the original jurors.”
(§ 1089, 5th par.)
Our Supreme Court addressed the constitutionality of this provision in People v.
Collins (1976) 17 Cal.3d 687 (Collins). “The principal question before us is whether the
substitution of an alternate for an original juror is constitutionally permissible after
deliberations have begun.… [W]e conclude that such substitution is permissible when
good cause has been shown and the jury has been instructed to begin deliberations anew.”
(Id. at p. 691, superseded by statute on another ground as stated in People v. Boyette
(2002) 29 Cal.4th 381, 462, fn. 19.) Collins recognized that an essential element of the
right to trial by jury included that a jury in a felony prosecution consist of 12 persons and
that its verdict be unanimous. (Collins, at p. 693.) Collins also agreed that this element
was part of the broader right that requires each juror to have engaged in all of the jury’s
deliberations and elaborated:
“The requirement that 12 persons reach a unanimous verdict is not met
unless those 12 reach their consensus through deliberations which are the
common experience of all of them. It is not enough that 12 jurors reach a
unanimous verdict if 1 juror has not had the benefit of the deliberations of
36.
the other 11. Deliberations provide the jury with the opportunity to review
the evidence in light of the perception and memory of each member.
Equally important in shaping a member’s viewpoint are the personal
reactions and interactions as any individual juror attempts to persuade
others to accept his or her viewpoint. The result is a balance easily upset of
a new juror enters the decision-making process after the 11 others have
commenced deliberations. The elements of number and unanimity combine
to form an essential element of unity in the verdict. By this we mean that a
defendant may not be convicted except by 12 jurors who have heard all the
evidence and argument and who together have deliberated to unanimity.”
(Collins, supra, 17 Cal.3d at p. 693.)
To protect this right, Collins construed section 1089 to require that deliberations begin
anew when a substitution is made after final submission to the jury. (Collins, supra,
17 Cal.3d at p. 694.) The trial court, therefore, when replacing an alternate juror during
deliberations must:
“[I]nstruct the jury to set aside and disregard all past deliberations and
begin deliberating anew. The jury should be further advised that one of its
members has been discharged and replaced with an alternate juror as
provided by law; that the law grants to the People and to the defendant the
right to a verdict reached only after full participation of the 12 jurors who
ultimately return a verdict; that this right may only be assured if the jury
begins deliberations again from the beginning; and that each remaining
original juror must set aside and disregard the earlier deliberations as if they
had not been had. We are confident that juries made aware of the rights
involved will faithfully follow such instructions.” (Collins, supra,
17 Cal.3d at p. 694.)
2. Sixth Amendment
“Unanimity in jury verdicts is required where the Sixth … Amendment appl[ies].”
(Andres v. United States (1948) 333 U.S. 740, 748 [“In criminal cases this requirement of
unanimity extends to all issues—character or degree of the crime, guilt and punishment—
which are left to the jury.”].) The United States Supreme Court held in 2020 that the
Sixth Amendment’s right to a unanimous jury applies to state criminal trials through the
Fourteenth Amendment. (Ramos, supra, ___ U.S. at p. ___ [140 S.Ct. at p. 1397] [“So if
the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a
37.
conviction in federal court, it requires no less in state court.”].) The United States
Supreme Court has also described the essential feature of a jury trial:
“The purpose of the jury trial … is to prevent oppression by the
Government. ‘Providing an accused with the right to be tried by a jury of
his peers gave him an inestimable safeguard against the corrupt or
overzealous prosecutor and against the compliant, biased, or eccentric
judge.’ [Citation.] Given this purpose, the essential feature of a jury
obviously lies in the interposition between the accused and his accuser of
the commonsense judgment of a group of laymen, and in the community
participation and shared responsibility that results from that group’s
determination of guilt or innocence.” (Williams v. Florida (1970) 399 U.S.
78, 100 [holding that criminal jury may be less than 12 members].)
However, the United States Supreme Court has not considered whether the Sixth
Amendment permits the substitution of an alternate juror after deliberations have begun,
and if so, whether the Sixth Amendment mandates any specific procedures, such as an
instruction to deliberate anew. We could find no federal case that found a Sixth
Amendment violation when the trial court failed to instruct the jury to begin its
deliberations anew after the substitution of juror.36 “The only circuit court that has
addressed this issue concluded that substituting an alternate juror without instructing the
jury to commence its deliberations anew is not constitutional error.” (Peek v. Kemp
(11th Cir. 1986) 784 F.2d 1479, 1485 (Peek), citing United States v. Evans (4th Cir.
1980) 635 F.2d 1124, 1127–1128 (Evans).)
36 Until 1999, the federal rules did not permit federal district courts to substitute alternates
after deliberations had commenced. (See, e.g., United States v. Houlihan (1st Cir. 1996) 92 F.3d
1271, 1285, quoting Fed. Rules Crim.Proc., former rule 24(c), 18 U.S.C. [“The imperative of
Rule 24(c) is clear and categorical: ‘An alternate juror who does not replace a regular juror shall
be discharged after the jury retires to consider its verdict.’ [Citation.] The rule reflects the
abiding concern that, once a criminal case has been submitted, the jury’s deliberations shall
remain private and inviolate.”].) Effective December 1, 1999, rule 24(c)(3) of the Federal Rules
of Criminal Procedure (18 U.S.C.) was amended to permit a district court to substitute an
alternate juror during deliberations if the court instructs the jury to “begin its deliberations
anew.” (Fed. Rules Crim.Proc., rule 24(c)(3), as amended Apr. 26, 1999, 18 U.S.C.)
38.
The federal circuit courts that have considered the issue have done so in the
context of holding or impliedly finding that the Sixth Amendment does not categorically
prohibit the mid-deliberation substitution of an alternate juror, as well as addressing the
violation of former rule 24(c)(3) of the Federal Rules of Criminal Procedure (18 U.S.C.)
that prohibited substitution. (See United States v. James (3d Cir. 2020) 955 F.3d 336,
348 (James) [finding no constitutional violation “[b]ecause all deliberating jurors heard
all of the evidence and were properly instructed, and there is nothing in the record
suggesting that the deliberating jurors lacked impartiality or the competence to
understand the evidence and the instructions, or that the excused juror tainted or
otherwise impaired the reconstituted jury that delivered the verdict” (fn. omitted)]; United
States v. Oscar (11th Cir. 2017) 877 F.3d 1270, 1289–1290 [holding district court did not
abuse its discretion in substituting two jurors after jury had been deliberating for 21 hours
where instructed jury to begin deliberations anew, jury renewed deliberations for 9 hours
thereafter and acquitted the defendant of two counts, thus indicating it fairly and
thoroughly evaluated the evidence]; United States v. Cencer (6th Cir. 1996) 90 F.3d
1103, 1109–1110 [holding defendant may waive Fed. Rules Crim.Proc., former rule
24(c), 18 U.S.C., which permitted substitution of alternate only before deliberations
commence]; Claudio v. Snyder (3d Cir. 1995) 68 F.3d 1573, 1576 (Claudio) [“federal
courts have generally ruled that the substitution of a juror after deliberations have begun
does not violate the United States Constitution, provided that defendants suffered no
prejudice as a result”]; Peek, supra, 784 F.2d at pp. 1484–1485 (en banc) [no Sixth
Amendment violation even where no instruction to jury to start deliberations anew where
defense counsel did not object to the lack of supplementary instructions when alternate
juror was substituted, and the jury was not prevented from starting its deliberations from
the beginning on its own]; Miller v. Stagner (9th Cir. 1985) 757 F.2d 988, 995 (Miller)
[holding, in conclusory terms, that substitution of alternate jurors during deliberations did
not violate federal constitutional rights because § 1089 and trial court’s procedures
39.
preserved “the ‘essential feature’ ” of the jury required by the 6th Amend.]; United States
v. Hillard (2d Cir. 1983) 701 F.2d 1052, 1057 (Hillard) [finding no 6th Amend. violation
by substitution of alternate where length of deliberations and “discriminating verdicts”
supported substitution not prejudicial]; United States v. Phillips (5th Cir. 1981) 664 F.2d
971, 990–993 (Phillips) [substitution of alternate juror in violation of Fed. Rules
Crim.Proc., former rule 24(c), 18 U.S.C. does not violate 6th Amend.], overruled on other
grounds by United States v. Huntress (5th Cir.1992) 956 F.2d 1309, 1317; Evans, supra,
635 F.2d at pp. 1126–1128 [defendant permitted to waive prohibition of substitution of
juror after deliberations commenced and no fundamental unfairness and nothing
precluded jury from starting deliberations anew even though jury not instructed to do so];
Henderson v. Lane (7th Cir. 1980) 613 F.2d 175, 178–179 [while substitution might
undermine unanimity requirement of Fed. Rules Crim.Proc., rule 23(b), 18 U.S.C., relies
upon Supreme Court case that upheld nonunanimous verdicts in state cases to find no
constitutional violation].)
These courts are split on the importance of an instruction to deliberate anew in
assessing the constitutional validity of a mid-deliberation juror substitution and have not
addressed whether the court must specifically instruct the jurors to disregard the prior
deliberations. The Second, Third, Fifth, and Ninth Circuit Courts of Appeals have
generally concluded that an instruction to deliberate anew is a procedural safeguard to
preserve the “essential feature” of the Sixth Amendment right to trial by jury and have
generally found no Sixth Amendment violation and no prejudice where the trial court
expressly or constructively instructed the jury to begin deliberations anew. (See James,
40.
supra, 955 F.3d at pp.341, 348;37 Claudio, supra, 68 F.3d at p. 1577;38 Miller, supra,
757 F.2d at p. 995; Hillard, supra, 701 F.2d at pp. 1055–1057; Phillips, supra, 664 F.2d
at pp. 990–993.) When determining the existence of a Sixth Amendment violation or
assessing prejudice, these courts have made highly fact-specific inquiries and
(1) considered any other procedural safeguards that preserved the jury’s “essential
feature,” and (2) compared the length of pre-substitution deliberations with the length of
post-substitution deliberations.
The Fourth, Sixth, Seventh, and Eleventh Circuit Courts of Appeals have placed
less emphasis on supplemental instructions to begin deliberations anew, have generally
found it more relevant whether the reconstituted jury was actively prevented from
deliberating anew, but like the other circuit courts of appeals discussed above, have also
made fact-specific inquiries focused on the overall procedural safeguards that were in
place to preserve the jury’s “essential feature.” (See United States v. Cencer, supra,90 F.3d at pp. 1109–1110; Peek, supra, 784 F.2d at pp. 1484–1485; Evans, supra,
635 F.2d at pp. 1126–1128; Henderson v. Lane, supra, 613 F.2d at pp. 178–179.)
Not unexpectedly, we have been unable to find any published California opinion
addressing the Collins issue in the context of the Sixth Amendment since Ramos was
37 The district court instructed the jury: “(1) to ‘restart’ its deliberations ‘as though you are
starting from scratch,’ … (2) ‘there is no rush to reach a verdict;’ … (3) the verdict ‘must be
considered and deliberate;’ … and (4) the new juror ‘should feel as though he is beginning anew,
not ... interposing or becoming someone who is interrupting an ongoing process.’ ” (James,
supra, 955 F.3d at p. 341.)
38 “The trial court instructed the original jurors to ‘take whatever time is necessary’ to
completely inform the replacement juror of all previous deliberations and of each juror’s
individual point of view. It also instructed the replacement juror to guard against the inclination
to proceed before she was thoroughly familiar with the evidence and the views of the other
jurors.… The instructions were designed to eliminate any disadvantage that the alternate juror
may have felt as a result of her late introduction into the deliberations and to ensure her full,
effective, and uncoerced participation in all aspects of the deliberations.” (Claudio, supra,68 F.3d at p. 1577, italics added; but see Collins, supra, 17 Cal.3d at p. 694 [jury must be
instructed “that each remaining original juror must set aside and disregard the earlier
deliberations as if they had not been had” (italics added)].)
41.
decided. However, our review of the federal cases above demonstrate that a jury need
only be instructed as to deliberate anew while the California Constitution requires
additional advisements, including that the jurors set aside all prior deliberations. (See
Collins, supra, 17 Cal.3d at pp. 694, 697.) Therefore, we will assume that the Sixth
Amendment right is coextensive with California’s constitutional right to a jury trial as we
have concluded that the trial court’s instructions complied with the California
Constitution.
3. Ambiguous Jury Instructions
An ambiguous jury instruction amounts to a federal constitutional violation only if
there is “ ‘a reasonable likelihood that the jury has applied the challenged instruction in a
way’ that violates the Constitution.” (Estelle v. McGuire (1991) 502 U.S. 62, 72, quoting
Boyde v. California (1990) 494 U.S. 370, 380.) These cases articulate a standard that
applies to “claims that allegedly ambiguous instructions caused jury confusion.” (Jones
v. United States (1999) 527 U.S. 373, 390.) Instructional errors that violate defendant’s
rights under both the United States and California Constitutions are subject to harmless
error review under Chapman, supra, 386 U.S. at p. 24. (People v. Mil (2012) 53 Cal.4th
400, 409.)
4. Harmless Error Review
We disagree with defendant’s assertion that an error in instructing the jury upon
substitution of an alternate juror is a structural error that is not subject to harmless error
review. The United States Supreme Court has recognized structural error in a very
limited class of cases. These include: (1) the total deprivation of the right to counsel
(Gideon v. Wainwright (1963) 372 U.S. 335); (2) a biased trial judge (Tumey v.
Ohio (1927) 273 U.S. 510); (3) unlawful exclusion of grand jurors of the defendant’s race
(Vasquez v. Hillery (1986) 474 U.S. 254); (4) denial of self-representation at trial
(McKaskle v. Wiggins (1984) 465 U.S. 168); (5) denial of right to a public trial at a
42.
suppression hearing (Waller v. Georgia (1984) 467 U.S. 39); (6) a defective reasonable
doubt instruction (Sullivan v. Louisiana (1993) 508 U.S. 275); and (7) a defendant’s right
to have all critical stages of a criminal trial conducted by a person with jurisdiction to
preside (Gomez v. United States (1989) 490 U.S. 858, 876 [harmless error analysis does
not apply in a felony case in which, despite the defendant’s objection and without any
meaningful review by a district judge, an officer exceeds his jurisdiction by selecting a
jury]).
Other than in these limited, restricted classes of cases, the Supreme Court has
failed to find structural error in the wide range of errors presented to it. When the
Supreme Court speaks of a structural defect, it means that “[t]he entire conduct of the
trial from beginning to end is obviously affected by the [error].” (Arizona v. Fulminante
(1991) 499 U.S. 279, 309–310 (Arizona).) It is clear that when the Supreme Court speaks
of structural error, the court is referring to something which affects the entire framework
of the trial and not something which may have differing degrees of impact, depending on
other trial factors. (United States v. Olano (1993) 507 U.S. 725, 737, citing & quoting
Fed. Rules Crim.Proc., rule 52(b), 18 U.S.C. [the “presence of alternate jurors during jury
deliberations is not the kind of error that ‘affect[s] substantial rights’ independent of its
prejudicial impact”].) “[I]f the defendant had counsel and was tried by an impartial
adjudicator, there is a strong presumption that any other errors that may have occurred
are subject to harmless-error analysis.” (Rose v. Clark (1986) 478 U.S. 570, 579.)39
“ ‘Under article VI, section 13 of our state Constitution, trial error does not merit
reversal of a judgment unless “the error complained of has resulted in a miscarriage of
justice.” Typically, a defendant who has established error under state law must
demonstrate there is a reasonable probability that in the absence of the error he or she
would have obtained a more favorable result.’ ” (People v. Anzalone (2013) 56 Cal.4th
39 Defendant has not argued that the jury was biased or coerced.
43.
545, 553; see People v. Watson (1956) 46 Cal.2d 818, 836.) As our Supreme Court has
recognized, “Categorization of an error as structural represents ‘the exception and not the
rule.’ ” (People v. Sivongxxay (2017) 3 Cal.5th 151, 178; see People v. Marshall (1996)
13 Cal.4th 799, 851 [“[t]here is a strong presumption any error” is susceptible to harmless
error analysis].) “The fact that an error implicates important constitutional rights does
not necessarily make it structural.” (Sivongxxay, at p. 178.) “The ‘miscarriage of justice’
language within article VI, section 13 of the California Constitution likewise
contemplates a limited class of structural errors … ‘ “that … may result in a ‘miscarriage
of justice’ because they operate to deny a criminal defendant the constitutionally required
‘orderly legal procedure’ (or, in other words, a fair trial)—for example, the denial of the
defendant’s right to a jury trial or to an impartial trial judge [citation]—[and] all involve
fundamental ‘structural defects’ in the judicial proceedings .…” ’ ” (Id. at p. 179.)
Our Supreme Court recognized that instructional error regarding a jury’s duty to
deliberate anew upon substitution of an alternate juror is not structural and subject to state
harmless error review. (Collins, supra, 17 Cal.3d at pp. 697–698.) The court explained,
“When as here the error is not of federal constitutional dimensions and does not fall
within certain exceptions not here applicable, we are committed to the prejudicial error
rule enunciated in People v. Watson, supra, 46 Cal.2d 818, without regard to whether the
error offends fundamental as compared to other rights. [Citation.] We noted with
approval in Watson ‘that generally, error involving the infringement of a constitutional
right, like any other error, requires a further determination whether the defendant has
been prejudiced, and the final test is the “opinion” of the reviewing court, in the sense of
its belief or conviction, as to the effect of the error .…’ ” (Id. at p. 697, fn. 5.)
Of course, at the time Collins was decided, the United States Supreme Court had
ruled that the Sixth Amendment (as applied to the states through the Fourteenth
Amendment) did not require unanimous jury verdicts in state criminal trials. (Apodaca v.
Oregon (1972) 406 U.S. 404, 406.) The United States Supreme Court now recognizes
44.
that the Sixth Amendment requires juror unanimity in state courts as well as federal
courts. (Ramos, supra, ___ U.S. at p. ___ [140 S.Ct. at p. 1397.) We see no reason to
conclude that our Supreme Court would revisit applying harmless error analysis now that
juror unanimity is required by the Sixth Amendment as well as the California
Constitution.40 If the error were structural, our Supreme Court would have recognized it
as such under the California Constitution because it uses United States Supreme Court
authority for that analysis. (See, e.g., People v. Lewis (2021) 11 Cal.5th 952, 973–974
[relying on Arizona, supra, 499 U.S. 279 to conclude that failure to appoint counsel at
outset of § 1170.95 petition to pursue collateral relief is state error not rising to structural
error]; People v. Gonzalez (2018) 5 Cal.5th 186, 195–199 [citing Arizona, at pp. 306–310
when analyzing the type of error resulting from failure to instruct on lesser included
offenses]; People v. Merritt (2017) 2 Cal.5th 819, 825–831 [rejecting argument that
failure to instruct on multiple elements of robbery was structural error not amenable to
harmless error review, though recognizing that an instructional error or omissions
amounting to total deprivation of jury would be reversible per se]; People v. Reese (2017)
2 Cal.5th 660, 712–715 [relying on Arizona, at pp. 307–310 to hold that erroneous
withholding of portion of trial transcript subject to Chapman harmless error review even
though total denial of transcript is a structural error reversible per se].)41
Moreover, defendant has failed to identify a single case that treated the trial
court’s instructional error when substituting an alternate juror during deliberations as
reversible per se. As our review of the federal cases above indicates, federal courts have
40 Of course, because the instructional error would now affect defendant’s rights under both
the United States and California Constitutions, it subject to harmless error review under
Chapman, supra, 386 U.S. 18 as discussed above.
41 “Although the question whether a constitutional violation is structural or trial error is
generally thought to be categorical, the harmless error status of certain constitutional violations is
neither binary nor fixed. Certain errors can shift between being structural or subject to harmless
error review depending on the nature and extent of the violation.” (People v. Reese, supra,
2 Cal.5th at p. 712.)
45.
not set aside convictions where an alternate has been replaced during deliberations
without a finding of prejudice. (See James, supra, 955 F.3d at p. 341;42 Claudio, supra,68 F.3d at p. 1577; Miller, supra, 757 F.2d at p. 995; Hillard, supra, 701 F.2d at
pp. 1055–1057; Phillips, supra, 664 F.2d at pp. 990–993.)
We reject defendant’s argument that the instructional error in this case is structural
and incapable of review for harmlessness.
C. Analysis
1. The Trial Court Did Not Err in Instructing the Jury to Deliberate
Anew
As discussed above, Collins held that in situations where a juror is replaced with
an alternate juror, the court must instruct the jury: (1) to set aside and disregard all past
deliberations and begin deliberating anew; (2) that one of its members has been
discharged and replaced with an alternate juror as provided by law; (3) that the law grants
to the People and to the defendant the right to a verdict reached only after full
participation of the 12 jurors who ultimately return a verdict and that this right may only
be assured if the jury begins deliberations again from the beginning; and (4) that each
remaining original juror must set aside and disregard the earlier deliberations. (Collins,
supra, 17 Cal.3d at p. 694.) In this case, after seating the alternate juror, the trial court
advised the jury as follows: (1) one juror had been excused and replaced with an
alternate (and not to consider the substitution for any purpose); (2) the alternate juror
must participate fully in the deliberations that lead to any verdict; (3) the People and the
defendant have a right to a verdict reached only after full participation of the jurors
whose votes determine the verdict and this right will only be assured if the jurors begin
42 The district court instructed the jury: “(1) to ‘restart’ its deliberations ‘as though you are
starting from scratch,’ … (2) ‘there is no rush to reach a verdict;’ … (3) the verdict ‘must be
considered and deliberate;’ … and (4) the new juror ‘should feel as though he is beginning anew,
not ... interposing or becoming someone who is interrupting an ongoing process,’ ” but did not
instruct the jury to disregard its prior deliberations. (James, supra, 955 F.3d at p. 341.)
46.
their deliberations again from the beginning; (4) each juror must set aside and disregard
all past deliberations; and (5) all jurors should begin their deliberations all over again.
The court repeated, “Each of you must disregard your earlier deliberations and decide this
case as if those earlier deliberations had not taken place. [¶] Now, please return to the
jury room and start your deliberations from the beginning.”
Defendant acknowledges the trial court correctly instructed the jury to begin
deliberations anew but takes issue with the court’s comments made the day before and
after reading the formal instruction. The day before substituting the alternate juror, the
trial court dismissed one of the original jurors and explained to the remaining jurors the
procedure that would follow: “I will read you an instruction. We’ll substitute the
[alternate] juror in, but, in effect, your deliberations have to start to all over. It shouldn’t
take long for the [alternate] juror to get up to date.” One juror acknowledged that they
would start deliberations over but asked, “Will we get to keep our previous deliberations
to refer back to them or are they destroyed?” In context, we conclude that the juror was
referring to verdict forms for the 10 or 11 counts that had been reviewed prior to the
substitution. When the court replied, “Se[e] if that juror can agree” and that “those
verdicts have to be redone,” we understand the trial court was advising that if the
decisions as to those counts were unchanged after deliberations with the alternate juror,
then the jury would not need to complete the verdict forms again. The trial court
confirmed this understanding when it immediately offered to accept the completed
verdict forms. The juror indicated their understanding of the trial court’s comments when
the juror responded, “No, he probably wants us to start over.” The juror’s statement
communicated that instead of continuing deliberations with the alternate juror as to only
the remaining counts, the jury wished to start over to include the alternate juror on
deliberations for the counts that had already been subject to their deliberations.
If there had been any confusion, we believe such confusion was dispelled by the
formal instruction provided to the jury the following day. In light of the trial court’s
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unequivocal statements when seating the alternate juror that the jury needed to start
deliberating all over and that all 12 jurors had to discuss the case to reach a verdict, we do
not believe that the jury could have been confused about its obligation to start the
deliberations over. The alternate juror was not present the previous day and could not
have been confused by any earlier statements. Based upon the trial court’s instruction
that morning, the alternate juror would be expecting full deliberations on all of the
charges. The original jury did not return the 10 completed verdict forms the prior day
and elected to deliberate over again with the alternate juror. If the alternate juror had not
been permitted to deliberate as to all of the charges because any juror failed to understand
the trial court’s instructions, we believe that the resulting confusion would have resulted
in a question to the court for guidance.
Before the alternate juror was substituted, the original jury had indicated to the
court its intent to request readback of Mendoza’s testimony but had not done so. The
trial court, after reading the formal instruction to deliberate anew to the newly constituted
jury, reminded the jury that there was discussion the day before regarding readback of
testimony. The trial court commented to the jury, “So when … you are ready for that,
please let me know and I will send [the court reporter] to read back that testimony.”
Defendant argues that the trial court’s statement created confusion that caused the jury
disregard the formal instruction to deliberate anew.
Citing to People v. Guillen (2014) 227 Cal.App.4th 934, 1029–1031 (Guillen),
defendant claims the trial court’s comments, made after the required admonition,
undermined its instruction to restart deliberations. In Guillen, the trial court properly
gave CALCRIM No. 3575 (as the trial court did here) but made other comments the
appellate court concluded implied the jury should not disregard previous deliberations.
(Guillen, at p. 1030.) In Guillen, the jury submitted a request to the trial court that
included questions and a request for readback of testimony. (Id. at pp. 979–980.) While
the trial court was consulting with counsel on responding to the request, but before the
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jury had returned for deliberations, a juror became incapacitated. (Id. at p. 980.) The
trial court and counsel agreed to replace the juror with an alternate, respond to the
questions posed, and to arrange for the readback despite the change to the jury. When the
trial resumed, the court advised the original 11 jurors and the alternate juror that it had
responded to the questions on the original jury’s form and had arranged for the court
reporter to reread testimony. (Ibid.) The trial court then read CALCRIM No. 3575,
complying with Collins, supra, 17 Cal.3d at p. 694. (Guillen, at p. 981.) Immediately
thereafter, the trial court stated, “The first thing you’re going to get is a reread.” (Ibid.)
The court held:
“Here, based on a complete reading of the trial court’s statements,
we conclude the court improperly implied the jury should not disregard
previous deliberations. After the court clerk swore in the alternate juror,
the court stated it had received the jury’s request for readback of testimony.
But those requests were from the original jury. By having the testimony
read back, the court answered the original jury’s request despite the fact one
juror was excused and the alternate juror did not participate in the
deliberations that led to the requests. Although the court then instructed the
jury with the proper instruction, CALCRIM No. 3575, which included the
directive the alternate juror must fully participate in the deliberations, the
court’s prior statements, like in [People v.] Odle [(1988) 45 Cal.3d 386,
405], implied the jury should not disregard previous deliberations but
should instead attempt to bring the alternate juror ‘up to speed’ on the
matters already discussed and possibly decided based on the requests the
original jury submitted to the trial court.” (Guillen, supra, 227 Cal.App.4th
at p. 1030.)
In People v. Odle (1988) 45 Cal.3d 386 (Odle), the trial court made the following
statements to the jury: “ ‘The court is compelled under the law to admonish you that you
are to start your deliberations from scratch because, obviously, … [the alternate] has not
had the benefit of whatever discussions you have had so far.… Start your discussions
from scratch so that [the alternate juror] has full benefit of everything that has gone on
between the jury up to the present time.’ ” (Id. at p. 405, second bracketed insertion
added, abrogated on another ground as stated in People v. Prieto (2003) 30 Cal.4th 226,
49.
256.) Our Supreme Court noted that by instructing the jury to “ ‘start from scratch,’ ” the
court correctly implied the jury should disregard its previous deliberations and start anew.
(Ibid.) However, when the trial court added that the jury should start from scratch so the
alternate juror could have the “ ‘benefit’ ” of “ ‘everything’ ” that had previously “ ‘gone
on,’ ” it implied the jury should not disregard its previous deliberations. (Ibid.) Our
Supreme Court determined that this interpretation of the trial court’s comments would
defeat the purpose of the instruction required under Collins. (Odle, at p. 405; but see
Claudio, supra, 68 F.3d at p. 1577 [approving trial court instruction for original jurors to
“completely inform the replacement juror of all previous deliberations and of each juror’s
individual point of view” because instruction “designed to eliminate any disadvantage
that the alternate juror may have felt as a result of her late introduction into the
deliberations and to ensure her full, effective, and uncoerced participation in all aspects
of the deliberations”].) However, our Supreme Court ultimately “assumed error”
occurred and found the error was not prejudicial. (Odle, at pp. 405–406.)43
We note that the trial court’s instruction in Odle was decidedly less
comprehensive, allowed for confusion, and stated two contrary concepts with equal force.
CALCRIM. No. 3575, however, clearly mandates the jurors to set aside prior
deliberations and to deliberate anew. The instruction, as given by the trial court in this
case, states no less than four times that all deliberations must begin anew: “this right will
only be assured if you begin your deliberations again from the beginning,” “you must set
aside and disregard all past deliberations and begin your deliberations all over again,”
43 Subsequent to Odle, our Supreme Court found no error where “the trial judge advised the
jury to resume its deliberations, stating it ‘would be helpful and in connection with commencing
your deliberations again, that you kind of start, start from scratch, so to speak, so that [the
alternate juror] has the benefit of your thinking as well as give him an opportunity for his input
also.’ ” (People v. Proctor (1992) 4 Cal.4th 499, 536.) The court held that this instruction
comported with Collins, explaining in part: “By instructing the jury to ‘kind of start, start from
scratch, so to speak,’ the court implied that the jury should disregard its previous deliberations.”
(Proctor, at p. 537.)
50.
“[e]ach of you must disregard your earlier deliberations and decide this case as if those
earlier deliberations had not taken place,” and “please return to the jury room and start
your deliberations from the beginning.”
In Guillen, although the trial court instructed the jury in compliance with Collins,
the court held these advisements were insufficient because, “like in Odle,” the trial court
implied that the jury should not disregard the prior deliberations by honoring the original
jury’s request. (Guillen, supra, 227 Cal.App.4th at p. 1030.) We disagree that the trial
court’s instruction in this case was like the instruction given in Odle in light of its
unequivocal and repeated instruction to “start over,” or that an implication arising from
the trial court’s action would be sufficient to override the trial court’s explicit
instructions. However, Guillen is distinguishable as well because the implication there
arose because the original jury formally communicated a request to the trial court, and the
trial court actually answered the original jury’s question, instructed the jury to deliberate
anew, and then sent the court reporter to them to read back testimony as originally
requested without providing the new jury the option to determine if and when such
readback was needed.
In this case, however, the trial court did not arrange for the court reporter to read
back the testimony and did not provide answers to the original jury’s questions. The trial
court here instructed the reconstituted jury to communicate when it was ready for
readback. The court never expressly contradicted its admonition to the jury to restart
deliberations. We conclude that the effect of the trial court’s comment was not sufficient
to imply to the jury to disregard their obligation to start deliberations over. Had the
reconstituted jury not sent another request, then the court reporter would not have read
back any testimony. In essence, the trial court advised the reconstituted jury to decide
51.
when and if it needed testimony to be read back and thereby permitted the jurors to
determine for themselves whether any readback was necessary.44
In addition, if the trial court’s instructions were susceptible of the interpretation
defendant now asserts, counsel likely would have objected at trial on this basis. Such an
omission suggests that “ ‘ “the potential for [confusion] argued now was not apparent to
one on the spot.” ’ (People v. Keenan (1988) 46 Cal.3d 478, 535 [failure to object to trial
court’s remarks about potential jury investigation suggested the potential for coercion
was not discernible], quoting Lowenfield v. Phelps (1988) 484 U.S. 231, 240.)” (People
v. Young, supra, 34 Cal.4th at p. 1203.)
“The better practice would have been for the trial court to inform the newly
impaneled jury the original jury’s requests were void, jury deliberations were to begin
anew, and the court would consider all requests from the newly impaneled jury.”
(Guillen, supra, 227 Cal.App.4th at p. 1030.) However, given the trial court’s reading of
CALCRIM No. 3575 and its failure to honor the original jury’s request, we do not
believe a reasonable juror would rationally infer that the court intended to override its
previous directives based on the trial court’s comment.
2. Any Err in Instructing the Jury to Deliberate Anew Was Harmless
Assuming that the failure to adequately instruct the jury to commence
deliberations anew after a juror substitution is violative of the Sixth Amendment as well
as the California Constitution, we find any error to be harmless beyond a reasonable
doubt. (See Chapman, supra, 386 U.S. at p. 24.)
In assessing whether any error in the instructions was harmless, we consider the
strength of the evidence and compare the time deliberating before and after the alternate
juror was substituted. (See Collins, supra, 17 Cal.3d at pp. 697, 691, 690 [“The case
44 When the jury communicated with the court, the request was different than what had
been mentioned by the original jury; more than Mendoza’s testimony was requested.
52.
against defendant is very strong.” “The error was thus harmless and nonprejudicial.”
(jury deliberated for approximately one hour and 15 minutes before substitution and “few
hours” thereafter)]; Griesel v. Dart Industries, Inc. (1979) 23 Cal.3d 578, 585, 583
[finding prejudice where case was close and jury deliberated seven days before
substitution and only four hours after]; Odle, supra, 45 Cal.3d at p. 405 [“we observed
that the closeness of the case and the comparison of time spent deliberating before and
after the substitution of the alternate juror”—part of an afternoon versus two and one-half
days—“were factors to be considered when determining prejudice”]; People v. Proctor,
supra, 4 Cal.4th at p. 537 [evidence was overwhelming and deliberation prior to
substitution of juror was minimal (little more than one hour) compared to deliberations
after substitution (several hours)].)
Federal cases have also considered whether the jury was prevented from starting
deliberations over and if the time deliberating after substitution evidenced the alternate’s
participation in deliberations. (See Peek, supra, 784 F.2d at pp. 1482 & fn. 2, 1485
[finding no prejudice where not instructed to begin deliberations anew or equivalent and
jury deliberated for two hours before substitution and 15–30 minutes thereafter]; Claudio,
supra, 68 F.3d at pp. 1575, 1577 [jury not instructed to begin deliberations anew or
equivalent and jury deliberated for six and one-half hours before substitution and nine
and one-half hours thereafter]; United States v. Virgen-Moreno (5th Cir. 2001) 265 F.3d
276, 289 [jury not instructed to begin deliberations anew or equivalent but jury
deliberated for 15 minutes before substitution and three hours thereafter]; United States v.
Oscar, supra, 877 F.3d at p. 1289 [jury deliberated two and one-half days before
substitution and nine hours after indicated alternate not coerced.)
Courts have also considered whether the jury, after substitution of the alternate,
returned verdicts indicating discrimination and consideration of the charges. (See, e.g.,
Hillard, supra, 701 F.2d at pp. 1055–1057 [noting jury deliberated two days before the
substitution and two days after, requested testimony and exhibits, and also returned
53.
separate verdicts (both guilty and not guilty) as to each defendant and charge during that
time].)
In the instant case, the original jury deliberated for three hours before retiring for
the day. One juror reported to the trial court that they estimated needing more than
20 minutes because the jury would be requesting readback of Mendoza’s testimony, but
they did not believe it would “take that much longer.” However, after substitution of the
alternate juror, the jury took longer than originally estimated, indicating the deliberations
included more than the remaining counts. The reconstituted jury commenced
deliberations at 9:07 a.m. After deliberating for an hour, the jury sent a note requesting
readback of G.S.’s and M.C.’s testimonies in addition to Mendoza’s testimony.45 This
was completed at 11:43 a.m., and the jury notified the court of its verdicts at 2:05 p.m.
The record does not indicate the jury took any breaks and, excluding time with the court
reporter, the jury deliberated no less than two and as much as three hours after the
alternate juror joined the jury. While this may have been the same or shorter than
original jury’s deliberations, the difference is not vastly significant.
The actual, deliberative conduct of the reconstituted jury indicates the jury started
deliberations anew. The original jury reviewed 10 or 11 of the counts relating to G.S.
within the first three hours of deliberation and indicated it would not take much longer
than 20 minutes to review of the remaining five or six counts. However, the jury
deliberated longer than originally anticipated if it were only considering the remaining
counts. In addition, after substitution of the alternate, the reconstituted jury requested
more testimony than just Mendoza’s as previously indicated, including M.C.’s and G.S.’s
in their request even though the original jury reported having reviewed 11 of the 13
counts relating to G.S. These factors are also indicative that the jury did not continue its
45 Mendoza’s provided expert testimony as to the DNA results which was pertinent to
counts 12 and 13 (the sexual abuse that occurred just prior to G.S.’s report to the police).
54.
prior deliberations but started their deliberations anew. We also consider the jury’s
decision not to return verdicts on the counts they had reviewed before the alternate was
substituted and comment that the alternate juror would want to participate in the
decisions as to those counts. These factors and the actual instructions by the trial court,
which included an admonition to start deliberating over again at least four times, causes
us to conclude that the jury did not disregard the court’s admonitions.
We agree with the People that this was not a close case and the evidence was
strong in support of the guilty verdicts. The information contained 16 counts of child
abuse, including 13 counts involving G.S. G.S. testified that defendant committed the
various acts against her. Her testimony was essentially unimpeached. As to counts 12
and 13, G.S. testified that the sexual assaults occurred just before they were reported to
the police and this was corroborated by DNA evidence that was obtained from G.S. at
that time. The DNA contained a sperm protein and, while defendant could not be
eliminated as a contributor, the statistical evidence showed that the same DNA profile
would be expected to occur randomly in only one in 91 quadrillion Hispanics (a virtual
statistical certainty). This evidence corroborated G.S.’s testimony regarding the recent
sexual assault given the unlikelihood it resulted from inadvertent contact.
G.S.’s mother, Estella, testified that just after the abuse was reported to the police,
she spoke with defendant who refused to return home because he feared he would be
arrested, which supported an inference that he was conscious of his guilt. In addition, the
testimony of G.S., M.C., and I.C. corroborated that defendant sexually assaulted them.
Defendant’s only evidence was from Lola, a nurse who testified that she never saw
anything unusual when she regularly visited defendant’s residence during the several
weeks preceding G.S.’s report of the abuse. However, Lola also testified that during the
visits, she stayed just inside the residence by the front door and was only present for 5 to
10 minutes at a time. This testimony did not convincingly contradict G.S.’s testimony
55.
concerning defendant’s early morning abuse of her during that time period or respond to
G.S.’s testimony of the preceding years of abuse.
We conclude that, even if the Sixth Amendment required the trial court to instruct
the reconstituted jury to deliberate anew, any error in doing so was harmless beyond a
reasonable doubt.
DISPOSITION
The conviction on count 5 is reversed. The conviction on count 12 is modified to
assault of a person under 18 years of age with intent to commit rape in violation of Penal
Code section 220, subdivision (a)(2). The case is remanded to the trial court with
directions to reverse the conviction on count 5, modify the conviction on count 12,
resentence defendant, and exercise its discretion under Penal Code section 654, as
amended by Assembly Bill No. 518 (Stats. 2021, ch. 441, § 1), to stay the sentence on
either count 8 or count 9. The judgment is affirmed in all other respects.
HILL, P. J.
WE CONCUR:
DETJEN, J.
SMITH, J.
56.