Opinion
G054656
12-06-2018
THE PEOPLE, Plaintiff and Respondent, v. FERNANDO GABRIEL CARRILLO, Defendant and Appellant.
Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Amanda E. Casillas and Teresa Torreblanca, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12CF2174) OPINION Appeal from a judgment of the Superior Court of Orange County, Deborah C. Servino, Judge. Affirmed. Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Amanda E. Casillas and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
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Fernando Gabriel Carrillo was convicted of three counts of committing a lewd or lascivious act on a child under 14 years old, and one count of attempting to commit child molestation. He appeals, claiming the trial court committed reversible error by instructing the jury with CALCRIM No. 361, which addresses a defendant's failure to explain or deny adverse evidence. Carrillo argues the instruction was inappropriate because he testified and gave an account of what occurred during the relevant incident.
As is often the case when this issue regularly arises, the Attorney General concedes the court erred by giving this instruction. The Attorney General nonetheless argues the error should be deemed harmless when the instruction is considered in the context of the other instructions given and the weight of the evidence against Carrillo. We agree and consequently affirm the judgment.
FACTS
In June 2012, Carrillo attended a day-long church convention in Norco with 12 year old A.L. and other members of her family—including her mother, her two sisters, and her older sister's daughter and boyfriend. Carrillo, then age 30, had been a close friend of A.L.'s older sister since she was in high school, and he referred to their mother as "mom."
After the convention, the group decided to go to dinner together in Orange. A.L. rode in Carrillo's vehicle, so he could take advantage of the carpool lane on the freeway.
While the two of them were stuck in traffic, Carrillo began touching A.L. on her legs, at first over the skirt of her dress, but then he began pushing her dress up. Carrillo pushed his hand between A.L.'s legs, touching her inner thighs, although he did not touch the area "where [her] underwear would be." A.L. recalled repeatedly pushing Carrillo's hand away. He also touched her arms, in a "patting" gesture, and she told him to stop. Carrillo then slid his hand behind A.L.'s back and "tried to touch [her] butt," and she moved backward to avoid it. A.L. also testified that Carrillo commented she was "developing nicely," and "tried to, like, look at [her] bra." She told him to stop, and he slid his hand inside of her dress, touching her bare breast, although not reaching far enough to touch her nipple. A.L. stated that Carrillo also tried to kiss her.
In an effort to distract Carrillo, A.L. began playing "the license plate game," which involved looking for vehicle license plates with either repeated digits or repeated letters, and when one was spotted, punching the other player in the arm.
When Carrillo and A.L. arrived at the restaurant, A.L was visibly upset, but she did not immediately tell either her mother or her sisters what had happened. When Carrillo sat down next to A.L. in the restaurant, she moved away and sat next to her mother. A.L. was quiet during the meal and displayed little appetite.
Later that evening, A.L. sent text messages to two of her friends, telling them of her molestation by a "family friend" while stuck in traffic in his car. Her initial message to one friend was "I was almost raped today."
A.L. met with her two friends the next morning before school and, while they were discussing what had happened to her, she "broke down and started crying." Her friends took her to speak with the school counselor, who summoned police officers to the school.
A few days later, A.L. cooperated with the police in making a recorded telephone call to Carrillo, designed to get him to discuss the molestation. During the call, A.L. asked Carrillo, "[w]hy were you trying to touch me in the car on Sunday?" He responded, "[u]mm, I don't know, I think ahh you're beautiful." A.L. then pointed out she was only 12 years old and Carrillo apologized, acknowledging he got "a little carried away . . . sitting with you." After Carrillo apologized, A.L. stated that she was still uncomfortable, and he apologized again, saying "I'm very, very, very sorry, it won't happen again."
A.L. then asked Carrillo why he had been touching her buttocks, and he claimed he had been "playing" and "joking" around and was sorry. When A.L. asked Carrillo about trying to put his hand down her shirt, he first denied it, but then stated that he was "playing around" and not "trying to cross the line." Carrillo again claimed he was "just playing around" when he lifted A.L's skirt.
A.L. then stated that if she had not hit Carrillo's hand away from her legs, "[he] probably would have touched [her] vagina." He replied, "No." When A.L. asked Carrillo if he had ever touched her other sister that way, he denied it, acknowledging he had only ever done that to her. When she asked him why he had done it, he stated "I got carried away, I was playing around and I just got carried away."
When A.L. challenged Carrillo's characterization of his conduct as merely "playing," he paused for a long moment, responding only after she followed up with "I want to know why?" Carrillo reiterated, "I got carried away, I was playing around." He did not deny trying to kiss her. When she insisted that kissing her was "not playing," he paused before apologizing again and promising "none of that's gonna ever happen again."
Carrillo told A.L. that he "love[d] all [her] family" and that he "[did not] want to do anything to hurt [her] or [her] mom or [her] sisters or anybody, [stating] I'm not like that." He then admitted he knew that what he had done "wasn't right" and was "not how a Christian should act." He asked A.L. for forgiveness.
When A.L. told Carrillo that his actions "kind of made me think that you were like horny or something," he replied "No, I know . . . your age." But when she followed up with "[w]ell like why did you get carried away," he replied "I don't know I just you know, I don't, I forget things sometimes . . ." and followed that with a further assurance that he was sorry and it would not ever happen again. Carrillo also offered to never hug A.L. in the future. Toward the end of the call, Carrillo admitted being "an idiot," and he told A.L. he loved her.
Carrillo was also interviewed by two police officers in his home. He acknowledged to the officers that he had driven in his car with A.L. following the church convention, but claimed nothing of significance had taken place. He explained that he and A.L. had been "joking around" and "hitting" each other. He admitted he had touched "her leg and things like that," but denied touching her anywhere else. However, when one of the officers asked if he was sure he hadn't touched her anywhere else, Carrillo stated "[w]ell I don't I don't I don't recall." He informed the officers he was "on medication right now," and the interview terminated shortly thereafter.
Carrillo also testified in his own defense at trial. He stated that A.L. had ridden with him in his car after the church convention so that he could access the car pool lane. During the drive, they talked about various things, including a boyfriend A.L. did not want her mother to know about. A.L. asked Carrillo about his wife, and he told her his wife was in Mexico.
Carrillo testified he got a telephone call from his wife while he and A.L. were in the car. And while he was speaking with his wife, A.L. was playing with her iPod, making "oohing and ahhing" noises. After his phone call ended, Carrillo asked A.L. what she was going on about, and she showed him a photo of a shirtless male model on her iPod. She told him "I always look at boys."
According to Carrillo, A.L. also told him she viewed pornography on her iPod, and his initial reaction was to snatch the iPod away from her so he could show it to her mother or sister. In reaching for the iPod, Carrillo touched A.L.'s shoulder for a "split second," and she put the iPod behind her back to keep it away from him. He reached for it again, and during the attempt, he touched the back of A.L.'s dress. She next put the iPod between her legs, and he again reached for it there.
However, Carrillo stated that during the struggle for the iPod, he "almost rear-ended a van," so he stopped and concentrated on his driving. He then told A.L. that "she's smart and beautiful and she doesn't need to be looking at those things." Carrillo claimed that he then leaned over to A.L. and "hugged her on her head" and "gave her a kiss" on her forehead. He denied any sexual intent, claiming he did so only "out of brotherly affection."
A.L. acknowledged having pictures of male celebrities she found attractive on her iPod, and said the pictures might include some boys who were shirtless. However, she denied using the iPod to search for pornography, and stated she had no recollection of using the iPod during her car ride with Carrillo, or of struggling with him while he attempted to take it away from her.
Carrillo acknowledged he never told A.L.'s mother about the iPod as he claimed had been his intention when he struggled to take it from her. However, he claimed to have told A.L'.s older sister later that evening and said that she responded "Yeah, I know how she is." A.L.'s sister denied that conversation occurred.
Carrillo also testified about his comments in the telephone call with A.L. He explained he was not initially paying attention to what she said, and he apologized because he assumed she was offended when he reached between her legs to grab the iPod. He believed his actions were probably unjustified because he was not A.L.'s father. He explained he had told A.L. he was just playing in an effort to minimize her discomfort about the struggle.
Carrillo also acknowledged he did not mention the iPod during either his phone call with A.L., or his interview with the police officers, stating he viewed it as "irrelevant" and he didn't think of it.
Carrillo also called an expert digital forensic investigator to testify about the search history of A.L.'s iPod, in an effort to undermine A.L.'s claim she had not used it to look at pornography. The expert testified that while the iPod was not used to access any pornographic sites during the timeframe of the car ride A.L. shared with Carrillo, it had been used to access pornographic sites at other times, including once in close proximity to when A.L. acknowledged using the iPod to access her middle school's website.
The jury convicted Carrillo of three counts of lewd acts on a child under 14 (Pen. Code, § 288, subd. (a)), which were designated as "touches thigh" (count 1), "touches buttocks" (count 3), and "lifts up dress" (count 4). On count 2, designated as "touches chest," the jury convicted Carrillo of the lesser included offense of attempted lewd act on a child under 14. (§§ 664, subd. (a), and 288, subd. (a).)
All further statutory references are to the Penal Code.
The court sentenced Carrillo to eight years on count 1, and imposed concurrent terms of four years on count 2 and eight years each on counts 3 and 4.
DISCUSSION
Carrillo contends his convictions must be reversed because the trial court's instructions to the jury included CALCRIM No. 361, relating to the defendant's failure to explain or deny adverse testimony. CALCRIM No. 361 states: "If the defendant failed in his testimony to explain or deny evidence against him and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove the defendant guilty beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure."
The law concerning the use of this problematic jury instruction is well established. CALCRIM No. 361 should be given "only when a defendant completely fails to explain or deny incriminating evidence, or claims to lack knowledge and it appears from the evidence that the defendant could reasonably be expected to have that knowledge." (People v. Cortez (2016) 63 Cal.4th 101, 117 (Cortez).) The instruction cannot be justified on the theory that there are gaps or omissions in the testimony offered by the defendant: "If the defendant has not been asked a question calling for an explanation or a denial, as a matter of law the instruction may not be given." (People v. Mask (1986) 188 Cal.App.3d 450, 455.)
The Attorney General's suggestion at oral argument that this court should more often publish its opinions regarding the use of CALCRIM No. 361 ignores the fact that the law on this issue has been well settled for many years.
In this case, Carrillo objected to the instruction in the trial court, arguing its use was inappropriate because he had not failed to explain or deny any evidence. The prosecutor did not contradict that assertion. The court then stated that it "[could] conceive that the [prosecutor] may argue that, and out of an abundance of caution, I would rather give it, particularly because it states—the jury instruction itself says, 'any such failure to explain or deny in evaluating that evidence is not enough by itself to prove guilt."'
As explained in People v. Haynes (1983) 148 Cal.App.3d 1117 (Haynes), such prophylactic use of the instruction is improper. CALCRIM No. 361 should be given only when "there is some specific and significant defense omission that the prosecution wishes to stress or the defense wishes to mitigate." (Id. at p. 1120.)
As the Attorney General concedes, there was no such omission in this case. The trial court, therefore, erred in giving CALCRIM No. 361. But having conceded that error, the Attorney General argues it does not warrant a reversal of the judgment because there was no reasonable probability that the outcome of the trial would have been more favorable to Carrillo in its absence. (See People v Saddler (1979) 24 Cal.3d. 671, 683 [applying a harmless error analysis to the use of former CALJIC No. 2.62, a substantially similar instruction]; People v Lamer (2003) 110 Cal.App.4th 1463, 1471-1473 (Lamer).) We agree.
As explained in Haynes, it is difficult to conceive of a situation in which giving CALCRIM No. 361 would materially affect deliberations: "In the typical case it will add nothing of substance to the store of knowledge possessed by a juror of average intelligence." (Haynes, supra, 148 Cal.App.3d at p. 1120.) In other words, the instruction requires jurors to do nothing other than that which their oaths require of them. It generally reflects a common-sense insight we would expect jurors to incorporate into their assessment of the defendant's credibility with or without this instruction.
These observations should not be interpreted by prosecutors as an invitation to request inappropriate jury instructions. Error is error. No ethical prosecutor can ever ask a trial court to commit error. --------
Indeed, as noted in Lamer, although "courts have frequently found giving [the instruction] to constitute error, we have not found a single case in which an appellate court found the error to be reversible . . . . On the contrary, courts have routinely found that the improper giving of [the instruction] constitutes harmless error." (Lamer, supra, 110 Cal.App.4th at p. 1472.) And so it is here.
Carrillo acknowledges Lamer's sweeping statement, but claims Lamer itself is distinguishable on its facts because the Lamer prosecutor did not expressly refer to the instruction in argument—whereas the prosecutor in this case "exploited" it. We are not persuaded. Carrillo cites no cases in which a trial court's erroneous instruction with either CALCRIM No. 361, or its predecessor, CALJIC No. 2.62, was found to constitute reversible error, and we can find none.
Haynes makes clear that a prosecutor would be free to comment on perceived holes in a defendant's testimony, for whatever persuasive effect that might have, even if there were no instruction expressly informing the jury that such holes could be considered. Thus, the prosecutor could have made essentially the same argument if CALCRIM No. 361 had not been given.
Finally, our assessment of harmless error includes an analysis of the strength of the evidence admitted in the case. Here, the evidence against Carrillo was strong. In particular, the recorded telephone conversation between A.L. and Carrillo was highly incriminating. While not technically a confession, it was notable for Carrillo's repeated admissions and apologies; for the fact that his initial response to the question "why were you trying to touch me in the car on Sunday" was "I think ahh you're beautiful"; for his admission that he got "carried away"; for his claim that he was "playing around" when he was "touching [A.L.'s] butt"; for his admission that he had only ever touched A.L., and no one else, "like that"; for his failure to deny he tried to kiss A.L.; and for his complete failure to mention that any of his conduct had been prompted by his supposed struggle for A.L.'s iPod.
While we agree that Carrillo's digital forensic investigator effectively rebutted A.L.'s claim that she had never viewed pornography on her iPod—thus lending credibility to Carrillo's claim she had told him of doing so during their car ride—we do not conclude that significantly undermined the credibility of her molestation claim. To the contrary, it seems reasonable to infer that A.L.'s boasting about viewing pornography may well have been the very thing that inspired Carrillo to view her in sexual terms, rather than as the child she actually was.
Given the strength of the evidence in this case, we do not find that a jury would have entertained reasonable doubt about Carrillo's guilt. We say that while recalling that he achieved a hung jury in his first trial, with a single juror holding out for acquittal. The record of that trial is not before us. The record of this second trial, however, provides compelling evidence of Carrillo's guilt and convinces us that while the giving of CALCRIM No. 361 constituted error, the error here was harmless.
DISPOSITION
The judgment is affirmed.
GOETHALS, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.