Opinion
E071844
04-08-2020
THE PEOPLE, Plaintiff and Respondent, v. FIDEL BORJA-GUERRERO,
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Defendant and Appellant. (Super.Ct.No. FSB17004113) OPINION APPEAL from the Superior Court of San Bernardino County. Steve Malone, Judge. Affirmed with directions. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
Fidel Borja-Guerrero appeals from his conviction on one count of committing a lewd or lascivious act upon a child under the age of 14 in violation of Penal Code section 288, subdivision (a). The trial court granted probation. On appeal, Borja-Guerrero contends that (1) the trial court erred by failing to instruct the jury on battery as a lesser included offense, (2) the prosecution's burden was improperly lessened by the two jury instructions given about single witness testimony, and (3) there are clerical errors in the sentencing minute order that should be corrected. We agree about the minute order in certain respects but otherwise affirm.
Further unlabeled statutory references are to the Penal Code.
BACKGROUND
In October 2017, Jane Doe (Jane) was 12 years old. She lived next door to Borja-Guerrero and was friends with his minor daughter, G.B.
On October 29, 2017, Jane was hosting a Halloween party at her house and went next door to invite G.B. Borja-Guerrero was in the front yard drinking beer with friends. Jane greeted him and gave him a hug, which she often did when she saw him. She thought Borja-Guerrero seemed drunk.
Jane asked Borja-Guerrero if G.B. could come to her party and followed Borja-Guerrero into the house to find G.B. Borja-Guerrero, G.B., and Jane were the only three people inside the house. After G.B. called her mother and received permission to attend, G.B. went to her bedroom to change her clothes.
When Borja-Guerrero and Jane were alone in the living room, Borja-Guerrero put his arm around Jane's waist while they were standing next to each other and then "grabb[ed] [her] butt" and held onto it. Borja-Guerrero grabbed Jane's hand and placed it on his penis over his clothes. Borja-Guerrero asked Jane, "'Can I touch you?'" Jane said that he could not, and Borja-Guerrero "grabb[ed] [her] butt again." G.B. returned to the living room, so Borja-Guerrero released Jane. G.B. changed her shoes, and the two girls ran over to Jane's house.
When Jane arrived home, she pulled her mother aside from the partygoers and told her mother that Borja-Guerrero had "grabbed her butt," attempted to kiss her, hugged her, and grabbed her hand and attempted to place it on his penis. Immediately after telling her mother, Jane told G.B. what had happened, and G.B. ran home. Jane also told her older sister. Jane's mother told Jane's father what Jane had told her, and both parents walked over to Borja-Guerrero's house to confront him. Borja-Guerrero was outside in front of his house, and Jane's mother thought he appeared "[h]ighly intoxicated." He denied doing anything to Jane. Jane's father punched Borja-Guerrero in the face. Jane's parents walked away from Borja-Guerrero's house, and Jane's mother called 911. Police officers arrived approximately 20 to 30 minutes later.
A police officer spoke with Jane's mother, Jane, Borja-Guerrero, and G.B. The conversations with Borja-Guerrero and Jane were recorded by the officer's body camera. Jane appeared scared and upset. She was trembling and crying. Borja-Guerrero appeared relaxed but intoxicated. Borja-Guerrero said that he had high-fived Jane twice and hugged her twice—once in the front yard and once in the house. He otherwise denied touching her. He claimed that he initially high-fived her to avoid holding hands with her, which she was attempting to do with him by interlacing her fingers with his. Borja-Guerrero was arrested.
The next day a detective interviewed Borja-Guerrero at jail. Borja-Guerrero continued to deny that he touched Jane except for high-fiving her and hugging her.
DISCUSSION
A. Failure to Instruct on Battery
Borja-Guerrero contends that the trial court prejudicially erred by failing to instruct the jury on the purportedly lesser included offense of battery (§ 242). We disagree.
"A trial court must instruct on all lesser included offenses supported by substantial evidence." (People v. Duff (2014) 58 Cal.4th 527, 561 (Duff).) This obligation arises "whenever there is evidence in the record from which a reasonable jury could conclude the defendant is guilty of the lesser, but not the greater, offense." (Ibid.)
To determine whether one crime is necessarily included in another, courts apply either the accusatory pleading test or the statutory elements test. (People v. Shockley (2013) 58 Cal.4th 400, 404 (Shockley); People v. Robinson (2016) 63 Cal.4th 200, 207 (Robinson).) "'Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.'" (Shockley, supra, at p. 404.) "When, as here, the accusatory pleading incorporates the statutory definition of the charged offense without referring to the particular facts, a reviewing court must rely on the statutory elements to determine if there is a lesser included offense." (Robinson, supra, at p. 207; Shockley, at p. 404.)
We independently review "the failure by a trial court to instruct on an uncharged offense that was assertedly lesser than, and included, in a charged offense." (People v. Waidla (2000) 22 Cal.4th 690, 733.)
Section 288, subdivision (a), provides that "a person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony." Battery is defined as "any willful and unlawful use of force or violence upon another." (§ 242.) "'Any harmful or offensive touching constitutes an unlawful use of force or violence' under this statute." (Shockley, supra, 58 Cal.4th at p. 404.) The issue therefore is whether a person can commit a lewd act under section 288, subdivision (a), without touching the victim in a harmful or an offensive manner.
Our Supreme Court has addressed this issue in circumstances identical to those presented here. Shockley held that the trial court has no duty to instruct on battery as a lesser included offense when only lewd conduct is charged because "battery is not a lesser included offense of lewd conduct" toward a child under the age of 14. (Shockley, supra, 58 Cal.4th at p. 406.) Shockley applied the statutory elements test "because the information charging defendant with lewd conduct simply tracked section 288[, subdivision] (a)'s language without providing additional factual allegations." (Id. at p. 404.)
The language in the accusatory pleading here also tracks the statutory language and did not provide any additional factual allegations about the alleged conduct. Count 1 alleged that Borja-Guerrero "willfully, unlawfully, and lewdly commit[ed] a lewd and lascivious act upon and with the body and certain parts and members thereof of [Jane], a child under the age of fourteen years, with the intent of arousing, appealing to, and gratifying the lust, passions, and sexual desires of the said defendant(s) and the said child." Because the language in the complaint mirrors the statutory language of section 288, subdivision (a), and does not contain additional factual allegations, Shockley, supra, 58 Cal.4th 400 is directly on point and controls.
Despite the indistinguishable factual scenario and issue presented in Shockley, supra, 58 Cal.4th 400, Borja-Guerrero argues that Shockley is not controlling because it "side-stepped the question of whether battery is a lesser included offense under the accusatory pleading test." Relying on People v. Ortega (2015) 240 Cal.App.4th 956 (Ortega), Borja-Guerrero contends that it is "now settled" that the accusatory pleading test includes evidence adduced at the preliminary hearing. A number of appellate courts have rejected Ortega's expanded accusatory pleading test as being inconsistent with People v. Montoya (2004) 33 Cal.4th 1031, 1036 (Montoya) and other Supreme Court authority. (People v. Macias (2018) 26 Cal.App.5th 957, 964; People v. Alvarez (2019) 32 Cal.App.5th 781, 787; People v. Munoz (2019) 31 Cal.App.5th 143, 158.) Ortega did not address Montoya. (Ortega, supra, at pp. 966-971.)
We need not decide whether to adopt or to reject the analysis in Ortega, supra, 240 Cal.App.4th 956. Regardless of whether the expanded accusatory pleading test should apply in certain circumstances, it does not apply here. After Ortega, the Supreme Court has reaffirmed Shockley's enunciation of the rule that a reviewing court "'must'" apply the statutory elements test when, as here, the charging document "merely 'incorporate[s] the statutory definition of the charged offense without referring to the particular facts.'" (People v. Fontenot (2019) 8 Cal.5th 57, 65, quoting Robinson, supra, 63 Cal.4th at p. 207, italics added.) Borja-Guerrero has offered no reason for us to stray from this mandate. Nor can we see any. And Shockley dictates that battery is not a lesser included offense of lewd conduct on a child under 14 when the statutory elements test applies. (Shockley, supra, 58 Cal.4th at p. 406.) We therefore conclude that the trial court did not err by failing to instruct the jury on battery. B. CALCRIM No. 301 and CALCRIM No. 1190
The jury was instructed with CALCRIM No. 301 and CALCRIM No. 1190. Both instructions concern the testimony of a single witness. CALCRIM No. 301, as it was given to the jury, provides: "The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence." CALCRIM No. 1190, as it was given to the jury, provides: "Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone."
Borja-Guerrero contends that by giving these instructions together, the court unconstitutionally lightened the prosecutor's burden of proof. The People contend that Borja-Guerrero forfeited this argument by failing to object or to request amplifying or clarifying language in the trial court. We agree with the People that the argument is forfeited because Borja-Guerrero failed to request any clarifying instruction at trial. (People v. Hart (1999) 20 Cal.4th 546, 622.)
In any event, the argument is without merit. In People v. Gammage (1992) 2 Cal.4th 693, 696-697, 701 (Gammage), the Supreme Court held that in cases involving sexual offenses "it is proper for the trial court to give CALJIC No. 10.60 in addition to CALJIC No. 2.27"—the predecessor instructions to CALCRIM No. 301 and CALCRIM No. 1190. (Id. at p. 702.) Borja-Guerrero does not claim that the predecessor instructions are materially different from the new instructions at issue here. Gammage rejected the defendant's argument "that in combination, these two instructions improperly suggested that the jury should view his testimony with caution [citation], but that the testimony of the complaining witness need not be viewed with caution." (Gammage, supra, at p. 697.) Gammage held that "[t]he instructions in combination are no less correct, and no less fair to both sides, than either is individually." (Id. at p. 701.)
We decline Borja-Guerrero's invitation to conclude that Gammage, supra, 2 Cal.4th 693 was wrongly decided at the time, to adopt the analysis in Gammage's concurring opinion, or to find that Gammage has been undermined by more recent case law. We recognize that there is a split of authority among the states concerning whether it is error to instruct a jury that a victim's testimony need not be corroborated. (Compare State v. Stukes (S.C. 2016) 787 S.E.2d 480, 498 & Gutierrez v. State (Fla. 2015) 177 So.3d 226, 229-230 with Gaxiola v. State (Nev. 2005) 119 P.3d 1225, 1233 & State v. Marti (N.H. 1999) 732 A.2d 414, 420-421.) But we are bound by the decision of our Supreme Court in Gammage, at pages 696-697, 701. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; People v. Adames (1997) 54 Cal.App.4th 198, 210.) We therefore conclude that the trial court did not err by instructing the jury with CALCRIM No. 301 and CALCRIM No. 1190. C. Minute Order Corrections
Because we reject both claims of instructional error, the claim that there was cumulative error also fails. (People v. Anderson (2001) 25 Cal.4th 543, 606.)
Borja-Guerrero contends that there are a number of discrepancies in the sentencing minute order from the oral pronouncement of judgment that require correction. The People concede that there are some errors that need correction but disagree as to others.
"When there is a discrepancy between the oral pronouncement of judgment and the minute order, the oral pronouncement controls." (People v. Morales (2014) 224 Cal.App.4th 1587, 1594.) We have the inherent authority to correct a minute order that does not accurately reflect the oral judgment of the trial court. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
The minute order from the sentencing hearing provides that Borja-Guerrero was granted supervised formal probation "for a period of 5 years 0 months." However, at the hearing, the trial judge expressly refrained from setting the period of probation. The judge granted probation and indicated that he was "not sure what the probation period would be." Because the presentence report recommended a prison term and not probation, the judge wanted "to wait and see what probation recommend[ed]" as an appropriate term. The court therefore "with[e]ld pronouncement of judgment for a period of three to five years" until the next hearing. But the trial court was not able to set the term at the later hearing date because Borja-Guerrero failed to appear. Upon being released from jail after the sentencing hearing, he was "immediately picked up" by U.S. Immigration and Customs Enforcement. Because the minute order sets a probation term of five years but the judge did not orally set a probation term, Borja-Guerrero argues that the probation term in the minute order is a clerical error that must be stricken.
Although we agree that the court did not orally set a probation term, we do not believe it would be appropriate to grant the requested relief by striking the probation term from the minute order. (Cf. People v. Sheeley (1958) 159 Cal.App.2d 578, 581.) Were we to do so, Borja-Guerrero would be left with a minute order granting him probation but with no duration specified. If at some point he returns to the United States and violates the terms of his probation, it will be impossible for anyone to determine whether he is still on probation, because the duration of probation would be unknown. Moreover, the lack of a specified term actually creates a due process problem for Borja-Guerrero, because again, if he returns to the United States, he will not know whether the term has expired and hence whether he needs to comply. Under these circumstances, we believe the proper course is to leave the five-year probation term as stated in the minute order, but without prejudice to the trial court's ordering a shorter term should Borja-Guerrero appear within those five years.
As one of the conditions of probation, the court issued a no-contact order with Jane. At the hearing, the trial court ordered Borja-Guerrero "to stay 100 yards from her" with "[t]he exception being that he can come to and from his residence and he can be on his own property. He can check his mail. [¶] I can't deny him the right to use his residence. . . . So the defendant would be allowed to stay in his residence, come and go from his residence, go out and check his mail. However, if he sees the victim outside, he has to simply—it probably would be a good idea to get his mail later when she's not out there. Just go to and from his property, not speak with her, have no communication with her." The minute order does not include the exception about Borja-Guerrero's residence. Instead, it provides: "Not have any contact with the victim nor be within (100) yards of the victim and victim's school."
Borja-Guerrero contends that everything after "'[n]ot have any contact with the victim"' should be stricken. The People, on the other hand, contend that the minute order accurately reflects the oral pronouncement of judgment. We reject the People's contention. As written, the minute order does not accurately recount the trial court's oral pronouncement of the probation term. The minute order should include the following terms, as the trial court orally pronounced: Borja-Guerrero must stay 100 yards away from Jane with the exception of Borja-Guerrero continuing to be able to live at his residence—the house next door to Jane's—and to come and to go from that residence. The trial court did not say anything about Jane's school in the no-contact order, so that provision should be stricken.
Borja-Guerrero further contends that the minute order's provisions that he must "[s]erve 417 [d]ays [s]traight [s]entence" and pay a $27 probation supervision fee should be stricken because they do not accurately reflect the oral pronouncement of judgment. The People agree, and we concur. The trial court did not order Borja-Guerrero to pay any probation supervision fee. Borja-Guerrero was given 417 days of actual custody credits, not sentenced to serve 417 days.
DISPOSITION
For the minute order from the December 18, 2018, sentencing hearing, the trial court is directed to make the following corrections: (1) strike the $27 probation supervision fee, (2) strike the reference to Borja-Guerrero serving a 417 day sentence and state instead that he was given 417 days of actual custody credit, (3) amend the no-contact order to delete the reference to the victim's school and to add the exception that Borja-Guerrero can continue to live at his residence, next door to Jane's, and (4) amend the five-year probation term to include that the term is without prejudice to the trial judge ordering a shorter term should Borja-Guerrero reappear within the five-year period. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J. We concur: SLOUGH
Acting P. J. FIELDS
J.