Opinion
G052532
07-19-2017
THE PEOPLE, Plaintiff and Respondent, v. GONZALO CARBAJAL, Defendant and Appellant.
Jacqueline Goodman for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Teresa Torreblanca and Genevieve Herbert, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CF0559) OPINION Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed. Jacqueline Goodman for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Teresa Torreblanca and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Gonzalo Carbajal was convicted of committing lewd acts against Brianna L. while she was under the age of 14. On appeal, he contends: 1) The police violated his right against self-incrimination; 2) the trial court erred in ruling on the admissibility of certain impeachment evidence; 3) his attorney was ineffective; 4) there is insufficient evidence to support the jury's finding Brianna was less than 14 years old at the time of the alleged offenses; and 5) the trial court erred in imposing the upper sentence on his principal term. Finding these contentions unmeritorious, we affirm the judgment.
FACTS
Brianna grew up in San Diego County. However, during her summers, she usually spent a week or two at her Uncle Charlie's house in Santa Ana. The summer of 2010 was no exception. At trial, Brianna was unable to remember exactly when she visited Charlie that summer, but she was sure she was there between her seventh and eighth grade school years, when she was 12 years old.
Brianna was born in September 1997.
One night that summer, Charlie took Brianna to a house party. Appellant, a friend of Charlie, was at the party too, and at one point, he offered to make a run to the liquor store. Brianna had never met appellant before the party. However, at appellant's invitation she accompanied him to the store in Charlie's pickup truck.
On the way there, appellant, then age 31, asked Brianna her age, and she said she was 12 years old. Appellant told her she looked more like 18 or 19, and he thought she was cute. While they were at a red light, he held her hand and leaned in for a kiss. Brianna did not resist the kiss, but she kept her mouth closed and did not like appellant coming on to her.
After appellant stopped at the liquor store, Brianna thought he was going to take her back to the party. However, claiming he had to get something at his house, appellant drove there instead. He took Brianna into his bedroom and told her to take off her pants. Fearful appellant might hurt her if she refused, Brianna complied. Appellant then lowered his pants and told Brianna to lick his penis, which she did. He guided her head over his penis so it went into her mouth, and then he laid her onto his bed and commenced intercourse. The penetration was painful to Brianna, but appellant put his hand over her mouth to prevent her from making any noise.
When appellant was finished, they got dressed and drove back to the party. Brianna did not tell anyone there what happened because appellant told her not to. Also, growing up without a father in her home, she did not want appellant's children to have to suffer the same fate if he were sent away to prison.
But early in 2014, when Brianna was 16 years old, she received counseling for behavioral problems. During one of her first counseling sessions, she told her therapist what appellant had done to her. Following that disclosure, Brianna's mother took her to the Santa Ana Police Station, where she was interviewed by Officer Gary Ayala. In telling Ayala about her experience with appellant, Brianna said the incident occurred when she was only 12. However, she said she told appellant at the time that she was 13 years old.
Following the interview, Ayala and other officers went to appellant's house in Santa Ana to get his side of the story. They approached appellant in his driveway and asked him what happened "four years ago" between him and Brianna. Appellant admitted kissing Brianna while they were driving over to his house. He also said that she gave him a "blowjob" in his bedroom and that he tried to have intercourse with her but could not maintain an erection. Appellant told the police Brianna looked very mature - like she was 18 years old.
The officers arrested him and took him to the Santa Ana jail. After waiving his right to remain silent, appellant repeated his admissions to Officer Ayala during a second interview there. He was charged with committing three lewd acts - kissing, oral copulation and intercourse - with Brianna while she was under the age of 14. (Pen. Code, § 288, subd. (a)).
At trial, the defense did not dispute the acts themselves. Instead, it focused on the age element, claiming Brianna was not under 14 when the acts occurred. In support of that claim, appellant testified the incident in question happened in the fall of 2011, at which time Brianna would have been 14 years old. He said the reason he remembered it happened in the fall is because the party at which he met Brianna was geared around a football game between the Philadelphia Eagles and the Dallas Cowboys. And the reason he remembered it happened in 2011 is because at the start of that year he was going through some issues with his former girlfriend that resulted in him being convicted of violating a court order.
As part of his defense, appellant also called two character witnesses, his sister and his niece. They testified appellant is an honest person who has never shown any sexual interest in children. Nonetheless, the jury convicted him of the charged crimes and found he engaged in substantial sexual conduct with Brianna. The trial court sentenced him to 10 years in prison.
DISCUSSION
Admissibility of Appellant's Pretrial Statements
Appellant contends the trial court should have suppressed the statements he made to the police because they were obtained in violation of the Fifth Amendment and Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). As explained above, appellant gave two interviews to the police, one outside his house prior to his arrest, and one in jail after waiving his Miranda rights. Appellant contends his initial interview statements were inadmissible because he made them while he was in custody, yet the police did not advise him of his Miranda rights. And he contends his jailhouse statements were inadmissible because they were involuntary and tainted by virtue of the earlier Miranda violation. We uphold the trial court's decision to admit both sets of statements into evidence.
The evidence at the pretrial Miranda hearing was widely conflicting. While it is undisputed that Officer Ayala contacted appellant at his residence in the late afternoon on February 10, 2014, after speaking with Brianna about her allegations, Ayala and appellant gave vastly different accounts as to how that contact transpired.
Ayala testified he and two other uniformed officers parked their squad cars away from appellant's residence and walked toward his house. Seeing appellant standing alone in his driveway, the officers approached him and asked him his name, which he provided. Ayala told appellant he was not in custody. He also asked him if he would be willing to talk about a matter being investigated, and appellant said yes. At the time, appellant was standing about five feet away from Ayala, who was flanked by the other two officers. All three officers had their backs to the street, so appellant could have turned and walked toward his house without bumping into them. As Ayala put it, appellant had "plenty of room" to walk away. However, rather than trying to do so, he stayed in the driveway, answered Ayala's questions and eventually admitted to having sexual activity with Brianna.
According to Ayala, the tone of the interview was "very cooperative and very calm." He and his fellow officers never threatened or swore at appellant, nor did they give him any orders during the interview, which lasted about 10 minutes. At one point, appellant's sister did come out of his house to see what was going on. She went back inside when the officers asked her to do so.
At the end of the interview, Ayala informed appellant he was going to have to arrest him because Brianna was only 12 years old when they had sexual relations. By that time, other members of appellant's family had arrived at the house. Appellant asked if he could be handcuffed out of their view, and the officers obliged his request. They then took him to the Santa Ana jail, which was not far from appellant's house, for further questioning.
At the jail, Ayala interviewed appellant, who was still handcuffed, in a small room with one other officer present. The door to the room was closed, but not locked. After waiving his Miranda rights, appellant reiterated his earlier statements about having sexual activity with Brianna. As before, the conversation was very civil; Ayala did not make any threats or promises or use any deceptive interrogation techniques in speaking with appellant. When he asked appellant to sign a Miranda waiver acknowledgment form at the end of the interview, appellant freely did so. He also tried to write something on the bottom of the form. Ayala told him not to write on the form and to just tell him what he wanted. Appellant said he wanted an attorney, and at that point, Ayala told him the interview was over.
Appellant painted a very different picture of events. He testified he was getting his mail in front of his house when four (not three) officers came up and asked him his name. After giving it, the officers directed him over to his driveway and asked him to keep his hands out in front of him where they could see them. At one point, appellant "accidentally" put his hands behind his back, resting them on a car that was parked behind him in the driveway. Ayala asked him to bring his hands out in front of him again, and he complied. Then, while referencing some paperwork he was holding, Ayala asked him if he knew Brianna. Appellant thought he was talking about his stepdaughter, whose name is Brianna, but Ayala told him he was talking about the Brianna in this case. Appellant admitted knowing her but claimed he couldn't remember much about her.
At that point, the officers surrounded appellant and the interview became aggressive and confrontational. Ayala told appellant, "Come on, come on, you got to remember. You got to remember." When appellant said he could not, Ayala got upset and began calling him names. He told appellant, "Stop being a fucking pussy. We know already." "Let's get it over with." Meanwhile, the other officers were laughing and giggling, and one of them was "playing with" his baton. Appellant was scared and nervous. Although he had been arrested and Mirandized in the past, he was getting "freaked out" by the way the officers were handling the situation. He asked to be treated with respect, but the officers continued to harangue him with questions and cuss at him, so he felt like he had to tell them everything he knew. When Ayala told him they were going to arrest him and take him in for further questioning, appellant asked if he could grab a sweater from his house before they left. Ayala told him, "You're not going to need a fucking sweater where you're going."
At the jail, Ayala had appellant sign a form at the end of their interview. Appellant signed the form, acknowledging he had received and waived his Miranda rights. At the bottom of the form, he also wrote in, "I would like to get a lawyer." That upset Ayala. He asked appellant, "Why the fuck are you screwing up my paperwork?" Then he made appellant sign a new form.
In seeking to suppress appellant's statements, defense counsel focused primarily on the first interview. He argued the statements appellant made outside his home were inadmissible because they were the product of custodial interrogation that occurred before appellant was Mirandized. And he argued the "spillover effect" of that interview tainted the subsequent interview that occurred at the jail. Defense counsel also argued appellant's jailhouse statements should be suppressed on the basis they were involuntarily rendered. After listening to the audio recording of the jailhouse interview, the trial court denied appellant's motion without comment.
Appellant's jailhouse interview was recorded, but the interview outside his house was not.
The standard of review applicable to Miranda and Fifth Amendment claims is well settled. As an appellate tribunal, we "must accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility . . . ." (People v. Johnson (1993) 6 Cal.4th 1, 23, 25, disapproved on other grounds in People v. Rogers (2006) 39 Cal.4th 826, 879.) If there is conflicting evidence unresolved by the trial court, we must accept the version most favorable to the court's ruling, so long as it is supported by substantial evidence. (People v. Guerra (2006) 37 Cal.4th 1067, 1093; People v. Stansbury (1995) 9 Cal.4th 824, 831; People v. Miranda (1993) 17 Cal.App.4th 917, 922.) Based on those facts, we then independently determine whether the defendant's statements were legally obtained. (People v. Bradford (1997) 14 Cal.4th 1005, 1033; see also People v. Woods (1999) 21 Cal.4th 668, 673 [in reviewing a suppression motion, deference is owed to the trial court's factual findings, whether express or implied, but not its legal judgment].)
Since the evidence at appellant's Miranda hearing was conflicting, and the trial court did not make any express findings of fact, we must adopt the version of events that is most favorable to the court's ruling, i.e., Ayala's version, if it is supported by substantial evidence. While appellant disputed many aspects of Ayala's testimony, Ayala's testimony is in no way unreasonable or incredible; it satisfies the substantial evidence threshold. (See People v. Johnson (1980) 26 Cal.3d 557, 576 [evidence is substantial if it is "'of ponderable legal significance . . . reasonable in nature, credible, and of solid value.'"].) We therefore must adopt Ayala's testimony as the factual basis for our analysis.
Our analysis begins with the recognition that, by requiring the police to inform a suspect of his right to remain silent before questioning, the Miranda decision was intended to implement the Fifth Amendment's self-incrimination clause and to ensure "the individual's right to choose between silence and speech remains unfettered throughout the interrogation process." (Miranda, supra, 384 U.S. at p. 469.) Although the decision arose in the context of a stationhouse interview, Miranda applies whenever the police interrogate a suspect and "there has been such a restriction on [the suspect's] freedom as to render him 'in custody.'" (Oregon v. Mathiason (1977) 429 U.S. 492, 495.)
In determining whether the custody requirement has been met, we must assess the objective circumstances surrounding the interrogation to determine whether a reasonable person in the defendant's position would have felt at liberty to terminate the questioning and leave. (Thompson v. Keohane (1995) 516 U.S. 99, 112-113.) This turns on whether the defendant was formally arrested or his freedom of movement was restrained to the degree associated with a formal arrest. (Id. at p. 465; Stansbury v. California (1994) 511 U.S. 318, 322; People v. Leonard (2007) 40 Cal.4th 1370, 1400.)
In making this determination, we do not write on a blank slate. Courts have developed several factors bearing on this issue, including the length of the interrogation, where it occurred and the ratio of officers to suspects. (People v. Forster (1994) 29 Cal.App.4th 1746, 1753.) "Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect's freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were 'aggressive, confrontational, and/or accusatory,' whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview." (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403-1404, quoting People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.)
In this case, appellant was outnumbered three-to-one when the police interviewed him outside his home, the officers did not tell him he could terminate the questioning at any time, and he was arrested after the interview was over. Additionally, it is apparent from the context of the interview that the police suspected appellant of criminal wrongdoing from the get-go. However, "[e]ven a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue[.]" (Stansbury v. California, supra, 511 U.S. at p. 325.) Instead, we must examine the totality of the circumstances to determine whether the person would have felt free to leave. (People v. Pilster, supra, 138 Cal.App.4th at p. 1403.)
In that regard, it is significant that when the officers initially approached appellant, they asked him if he would be willing to speak to them, and he voluntarily agreed to do so. They also informed appellant he was not in custody. The questioning itself was relatively brief, lasting only about 10 minutes, and it occurred in an open area on appellant's own property; he was not whisked away to a secluded area for extensive questioning. (Compare United States v. Craighead (9th Cir. 2008) 539 F.3d 1073, 1078 [defendant deemed in custody where the police interrogated him at length in the confines of a secluded storage area].) Moreover, the testimony believed by the trial court was that the questioning was cordial and the interview atmosphere was calm; at no point did Ayala or his fellow officers threaten, mislead or physically restrain appellant in any way. At one point, they did steer appellant's sister away from the interview area. But the police often separate suspects from other people when they are questioning them. This routine police practice did not transform appellant's interview into a custodial situation, nor did any of the other circumstances surrounding the interview. The officers were not required to advise appellant of his Miranda rights when they spoke to him outside his home.
This conclusion makes it unnecessary for us to consider whether appellant's subsequent jailhouse interview was tainted by virtue of a prior Miranda violation. We thus turn to his fall-back claim that his jailhouse statements should have been suppressed under the Fifth Amendment as being involuntarily rendered. The only circumstance appellant cites in support of that argument is that "he asked for and was denied a lawyer" when Ayala interviewed him at the jail. Appellant did ask Ayala for a lawyer, but that was at the very end of the interview, after he had already waived his Miranda rights and confessed to having sex with Brianna. There is no evidence appellant was ever questioned after he requested an attorney. Nor is there any evidence to suggest the interview was conducted in a coercive fashion that undermined appellant's free will. (See generally People v. Maury (2003) 30 Cal.4th 342, 404 [a defendant's confession will be deemed involuntary under the Fifth Amendment only when the influences brought to bear upon him were such as to overbear his self-determination and will to resist].) We therefore reject appellant's argument. Finding no basis to suppress appellant's statements under Miranda or the Fifth Amendment, we uphold the trial court's decision to admit them into evidence.
Impeachment Issue
Appellant also argues the trial court prejudicially erred in ruling the prosecution could impeach his character witnesses with evidence of his prior convictions for violating a protective order. Even though the prosecutor never actually used those convictions for impeachment or any other purpose, appellant contends the court's ruling hurt his case because it essentially forced him to talk about his prior criminal activity during his own testimony. For the reasons explained below, we do not believe the impeachment issue caused appellant any prejudice.
Appellant's argument is premised on the belief the trial court ruled his prior convictions were admissible to impeach his character witnesses. That is incorrect. The issue arose near the end of the prosecution's case-in-chief. In a hearing conducted outside the jury's presence, the court met with counsel to discuss "the scope of defense character witnesses." Defense counsel said he wanted to elicit testimony from his character witnesses about two of appellant's character traits: 1) his lack of sexual interest in children, and 2) his honesty. The prosecutor did not have any objection to this. However, she did point out appellant had "three misdemeanor convictions for violation of a protective order from family court, so that might be an issue, depending on who's going to testify."
The ensuing discussion centered on whether appellant's prior convictions reflected on his veracity, and more particularly, whether the convictions could be used to impeach his character witnesses' opinions that he was an honest person. Defense counsel expressed uncertainty on this issue, noting a person could be in violation of a court order for either intentionally lying to the court, or merely being negligent. He sensed "some gray area" in this area, and the court admitted it did too.
However, the court gathered the issue might be more clear-cut in this case because appellant had violated a court order on three separate occasions. While one violation might not be that significant, the court surmised three violations tended to signal a certain level of intentional disobedience and dishonesty. When asked about this, defense counsel responded, "I guess I'd like some clarification as to [the violations] because [the prosecutor] did provide me some information. . . . The most recent case is a 2011 matter, but I know that there have been some older ones, . . . around 2002. [¶] So . . . I would ask [the court] to limit it to be not three or two violations, but perhaps one, [the] one most closest in time to that."
The court did not rule on that request. Instead, it simply reiterated its hypothesis that the more violations the defense character witnesses knew about, the more it might affect their opinion about appellant's honesty. However, the court said it was merely airing its thoughts on the issue and continued to solicit input from counsel. Ultimately, the court rendered a ruling that signaled it was still uncertain about the issue. Addressing a different issue first, the court ruled the prosecutor was free to use appellant's pretrial admissions to impeach his character witnesses' opinions about his lack of sexual interest in children. However, the court said that if the prosecutor chose to do that, it would not be inclined to allow her to use appellant's prior convictions to impeach his character witnesses' opinions about his honesty. The judge said, "I'm not ruling that way, but I would say if you [the prosecutor] go [into the sexual interest issue] and you then want to go towards the honesty [issue] also, I'd ask that you approach. [¶] . . . [¶] So that we can . . . be heard." The prosecutor and defense counsel both agreed this was a reasonable way to proceed.
As it turned out, the issue was never revisited. The defense case started with appellant taking the stand, and as explained above, he testified on direct examination that he was convicted of violating a court order in 2011. The testimony was offered as a time reference or marker, to help explain how appellant was able to remember the incident involving Brianna happened later that year, in the fall of 2011. On cross-examination, the prosecutor did not ask appellant any questions about his prior convictions, nor did she bring them up with appellant's character witnesses, who testified at the end of appellant's case. In fact, the prosecutor did not cross-examine the character witnesses in any respect.
Based on this record, we are hard pressed to find, as appellant contends, the trial court ruled the prosecutor could use his prior convictions to impeach his character witnesses' opinions about his honesty. To the contrary, it appears that with respect to that particular character trait, the prosecutor was not allowed to impeach appellant's character witnesses without first approaching the bench and convincing the court of the propriety of doing so. The overall discussion of this issue was confusing, to be sure, but one thing is clear: At no point did the court say the prosecutor could use appellant's prior convictions for impeachment purposes. That being the case, we reject appellant's claim the court erred in doing so.
Even if it had, the prosecutor never used appellant's prior convictions in any way, so it is difficult to see how appellant suffered any resulting prejudice. While he contends he never would have brought up his 2011 conviction during his testimony absent the alleged error, the suggestion is unconvincing given the fact that conviction served as the primary foundation for his claim the incident with Brianna occurred in the fall of 2011, when she was 14 years old. Since Brianna's age was the sole disputed issue at trial, this foundational evidence tying down the date was virtually indispensable to appellant's defense. Furthermore, contrary to appellant's position, the evidence could not have been prejudicial in terms of showing his propensity to commit crimes against women because, by his own admission, he engaged in sexual activity with Brianna when she was only a minor. Thus, any error respecting the admissibility of the impeachment evidence is not cause for reversal.
Effectiveness of Defense Counsel
Appellant contends his attorney was ineffective in various respects. We disagree.
The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prove that right was violated, "'"'a defendant must first show counsel's performance was "deficient" because his "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." [Citations.] Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citations.] Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."'" [Citations.]' [Citation.]" (In re Hardy (2007) 41 Cal.4th 977, 1018-1019.)
Appellant argues his attorney was remiss for failing to present expert testimony on his behalf. In particular, he contends he would have benefited from expert testimony showing 1) he has no sexually deviant tendencies and poses a low risk for child molestation; and 2) Officer Ayala failed to comply with "acceptable protocols and industry standards" when he interviewed Brianna. However, appellant admitted to the police on two different occasions and at trial that he engaged in sexual activity with Brianna. Given these specific admissions, it mattered little what appellant's general sexual tendencies were or whether Ayala's interview with Brianna was conducted perfectly. Moreover, these topics had little bearing on how old Brianna was at the time he had sex with her, which was the only disputed issue in the case. Therefore, the lack of expert testimony on these topics could not have prejudiced appellant.
Evidence to this effect was presented at appellant's sentencing hearing.
Appellant also takes issue with his attorney's failure to interview any witnesses who might have been able to contest Brianna's account of when the alleged offenses took place. Appellant contends this failure undermined his ability to establish a defense and forced him to take the stand and talk about this issue. But appellant does not identify which witnesses he is referring to, and there is nothing in the record to suggest defense counsel was derelict for failing to pursue or obtain exculpatory evidence. Appellant's speculation to the contrary is insufficient to prove his attorney was incompetent. (People v. Williams (1988) 44 Cal.3d 883, 933.)
Next, appellant contends his attorney was ineffective for failing to lay a sufficient foundation for his character witnesses' opinion that he was an honest person who lacked any sexual interest in children. Appellant contends the witnesses' testimony would have been more powerful had defense counsel asked them to provide examples to support their opinions. However, the prosecution made no attempt to attack the witnesses' opinions on cross-examination, and we suspect further testimony about appellant's supposed good character would have done little in the face of his admission he had sexual relations with Brianna. Accordingly, defense counsel was not derelict for failing to bolster the opinions of his character witnesses.
Appellant's final ineffective assistance claim is based on his attorney's closing argument. Appellant contends his attorney's discussion of the jury instruction on circumstantial evidence "effectively reduced the burden of persuasion as to the age of the victim on the date of the occurrence." Indeed, he asserts that discussion had the unintended effect of putting the onus on him to prove Brianna was not under the age of 14 when he had sexual contact with her. We do not see it that way.
Per CALCRIM No. 225, the jurors were instructed, "If you can draw two or more reasonable conclusions from the circumstantial evidence and one of those reasonable conclusions supports a finding that the defendant did have the required intent and/or mental state, and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required intent and/or mental state was not proved by circumstantial evidence. [¶] However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
As a preliminary matter, we do not believe this instruction was particularly important in this case since it pertains to the intent and/or mental state required for the alleged crimes, and the only contested issue in this case was whether Brianna was under the age of 14 when appellant had sex with her. In any event, it is hard to fault defense counsel for discussing the instruction because it requires the jury to give the defendant the benefit of the doubt in drawing conclusions from circumstantial evidence. Seizing on that point, defense counsel told the jurors that, assuming it was reasonable to conclude from the circumstantial evidence that Brianna was under 14 at the time in question, and it was also reasonable to conclude she was not, "you must adopt the [conclusion] that goes to innocence. Why? Because think about it. [¶] . . . If you're torn [in terms of interpreting the meaning of the circumstantial evidence], then the case has not been proven to you beyond a reasonable doubt. [¶] So tie goes to the runner. [¶] Tie goes to [the defendant] in that circumstance."
We do not believe this argument undermined the prosecution's burden of proof. In fact, immediately after making the argument, defense counsel reminded the jury, "The prosecution must prove the case beyond a reasonable doubt. We [the defense] don't have to [prove] anything to you." That point was also conveyed to the jury in several of the court's instructions, including the instruction on circumstantial evidence. (See CALCRIM Nos. 103, 220, 225, 359, 3250.) Thus, we cannot agree with appellant's assertion that his attorney's comments were improper or prejudicial. No Sixth Amendment violation has been shown.
Sufficiency of the Evidence
Appellant avers there is insufficient evidence to support the jury's finding Brianna was under the age of 14 when he had sex with her. The record shows otherwise.
In reviewing a challenge to the sufficiency of the evidence, we examine the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence to support the jury's verdict. (People v. Alexander (2010) 49 Cal.4th 846, 917.) "Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.]" (People v. Jones (1990) 51 Cal.3d 294, 314.) "'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment. . . .' Unless it describes facts or events that are physically impossible or inherently improbable, the testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Elliott (2012) 53 Cal.4th 535, 585.)
Brianna's account of how old she was when appellant victimized her was not improbable. At trial, she specifically remembered the subject incident happened during the summer between her seventh and eighth grade school years, when she was 12 years old. She also the police she was 12 when the incident occurred. As the prosecutor pointed out in closing argument, there was good reason for Brianna to remember her age at that time because that is when appellant stole her virginity. Moreover, when Officer Ayala interviewed appellant in February 2014, he referenced the incident as having happened "four years ago," at which time Brianna would have been 12, and appellant never questioned that timeframe. Even though appellant testified at trial the incident happened in the fall of 2011, when Brianna would have been 14, the jury was not required to believe that self-serving testimony. (People v. Silva (2001) 25 Cal.4th 345, 369.) Viewing the record in the light most favorable to the judgment, as we are required to do, there is substantial evidence to support the jury's finding Brianna was under the age of 14 at the time appellant victimized her.
Sentencing
The trial court sentenced appellant to 10 years in prison, including the upper term of 8 years on count 3 (lewd act involving intercourse), which it designated as the principal term. The court chose the upper term because appellant has suffered multiple prior convictions, he took advantage of a position of trust in victimizing Brianna, and she was vulnerable to his predatory behavior. Appellant contends the court's decision to impose the upper term violated Cunningham v. California (2007) 549 U.S. 270 (Cunningham) because it was not supported by facts that were pled and proven beyond a reasonable doubt.
The punishment for committing a lewd act on a child under the age of 14 is three, six or eight years in prison. (Pen. Code, § 288, subd. (a).) --------
Appellant's claim is based on an outdated view of California's sentencing law. Prior to 2007, Penal Code section 1170, subdivision (b) made the midterm sentence the presumptive sentencing choice for a criminal offense; it was the maximum allowable punishment that could be imposed by virtue of the jury's verdict, absent additional aggravating circumstances. At that time, it was customary for the trial court to determine the presence or absence of aggravating circumstances. However, in Cunningham, the United States Supreme Court determined such judicial fact finding violated the Sixth Amendment. The court ruled that, other than the fact of a prior conviction, "'any fact that increases the penalty for a crime beyond the prescribed statutory maximum [i.e., the middle term under then-existing California law] must be submitted to a jury, and proved beyond a reasonable doubt.'" (Cunningham, supra, 549 U.S. at p. 291, fn. 14, quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490.)
In response to Cunningham, the California Legislature did away with the midterm presumption, and now trial courts are free to impose an upper term sentence without engaging in additional fact finding. (Pen. Code, § 1170, subd. (b) ["When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court."].) Consequently, criminal defendants are no longer entitled to a jury trial on the issue of aggravating circumstances, and those factors need not be found true beyond a reasonable doubt. (People v. Sandoval (2007) 41 Cal.4th 825, 843-858.) Because this legislative change went into effect in 2007, eight years before sentencing occurred in this case, appellant has no basis to complain about his sentence. (People v. Wilson (2008) 164 Cal.App.4th 988 [recognizing the Legislature's amendment to Pen. Code, § 1170 cured the constitutional problem addressed in Cunningham ].)
DISPOSITION
The judgment is affirmed.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.