Opinion
D074199
09-17-2018
THE PEOPLE, Plaintiff and Respondent, v. BRANDIS CHRISTIAN DEW, Defendant and Appellant.
Richard Power, 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, Arlene A. Sevidal, Randall D. Einhorn and Collette C. Cavalier, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BAF1500926) APPEAL from a judgment of the Superior Court of Riverside County, David A. Gunn, Judge. Affirmed. Richard Power, 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, Arlene A. Sevidal, Randall D. Einhorn and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
Jane Doe alleged that Brandis Christian Dew, her uncle by marriage, touched her buttocks when she was in her bathroom and later touched her vaginal area under her clothing while she was in her bedroom. Dew admitted touching Jane's buttocks, but denied the other allegation. A jury convicted Dew of misdemeanor annoying or molesting a child (Pen. Code, § 647.6, subd. (a)) based on his act of touching Jane's buttocks, but found him not guilty of felony sexual battery (§ 243.4, subd. (a)) and the lesser included offenses of battery (§ 242) and misdemeanor sexual battery. The trial court sentenced him to summary probation for 36 months under certain conditions including 90 days in county jail. Dew appeals, contending: (1) insufficient evidence supported his conviction, (2) the court improperly instructed the jury, (3) the prosecutor committed misconduct, and (4) the trial court decided his new trial motion under an improper standard. We affirm.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2015 Jane was 16 years old. She lived with her father after her parents' recent divorce. Dew, Dew's wife, and their two children also lived at the home. Jane considered Dew and Dew's wife to be surrogate parents and described her relationship with Dew as "very close." Jane stated that she "felt protected whenever [Dew] was around" and that she "just loved having him around all the time."
One evening, Dew and Jane went to the store. Jane scrolled through photographs on her cell phone and came across a picture that she took of herself wearing underwear. Dew asked to see the picture. When Jane refused, Dew stated, "Well, I'm not moving this car until I see it." After Jane showed him the picture, Dew stated, "Damn, that's a nice picture."
When Jane got home, she changed into her pajamas, which consisted of a T-shirt and short tight underwear. Later that evening, Jane was in the bathroom preparing for bed when she noticed Dew standing behind her, looking at her. His eyes then moved toward her buttocks. Dew stepped into the bathroom and put his hand on her right butt check for about two or three seconds. Dew made a low moaning sound that Jane described as "like a sexual moan." He then left. Jane stated that she felt "Uncomfortable. Uneasy. Kind of weirded out."
A short time later, when Jane was standing in her bedroom, Dew approached her from behind, put his body next to hers and put his hand on her buttocks over her clothing. Dew placed his hand inside her underwear and touched her buttocks. Jane "froze" and did not know what to do. Dew then slid his hand around to the front, stating, "I gotta feel it." He touched the entrance to her vagina with his finger. Jane stated that she felt "Terrified. Um, very unsure. Weirded out. I just kind of froze." Dew left after Jane nudged him with her shoulder.
Jane locked her door and texted her boyfriend, who she had been texting earlier in the evening. Jane told her boyfriend that Dew had touched her, but did not provide details. Jane also texted Dew, telling him that "things went too far." Dew agreed and replied, "I'm sorry." Jane also texted her father and asked him to come to her room as soon as he returned home. Jane and her father spent the night elsewhere and reported the incident to police the following day. During cross-examination Jane admitted that she told Dew on the afternoon of the incident to look at her buttocks because they were getting firm, but she denied giving him permission to touch her buttocks.
When Jane's father arrived home that evening he found her crying in her room and very upset. Jane told her father that Dew had looked at her buttocks, touched them and moaned. She also told him that Dew had approached her when she was in her bedroom said, "I have to feel it, I have to touch it, something, and placed his hand under her shorts and over her vagina and rubbed her vagina." After Jane told him what Dew had done to her, Jane's father confronted Dew and asked, "What happened?" Dew responded, "I fucked up," but offered no other explanation. Jane's father recalled texting Dew and accusing Dew of violating his trust. Dew responded, stating, " 'I just want you to know that I am very sorry for any pain or hurt I have caused either one of you, that was never my intention. I hope one day you will be able to forgive me and my actions. And, again, I am very, very sorry. I can' t say it enough. Please don't take me away from my family. I am going to get help. I need the support of my family. That's all I have.' "
Jane stated that a few months before the incident Dew made a "cupping gesture" with his hands toward her three or four times as if he wanted to grab her buttocks. Dew told Jane that he wanted to grab her "bottom" when she wore her pajama shorts. Dew also told Jane, three or four times, that his wife, was not "giving him sex." Prior to trial, Jane's grandmother tried to convince Jane to drop the charges against Dew, but Jane refused.
Dew testified in his own defense. He stated that he loved working out at the gym and trained other people. He and his wife went to the gym together and Jane asked them for help in working out. Dew helped Jane with exercises for ballet and dance. The two regularly discussed their progress, including invitations to look at specific body parts.
On the day of the incident Jane had showed him a picture of herself wearing thong underwear which he told her to delete. Later that day the two discussed working out together the following morning when Jane told him that "her booty was firm and to feel it." Dew then touched Jane's buttocks. Dew sensed a moment of "awkward silence" as he thought "[W]hat the heck did I just do? I didn't feel right about it. We were talking about muscles, but still that is something, it just didn't set well with me." Dew later received a text message from Jane saying, "I love [Dew], but you went too far. I love you [Dew], it's not going to be the same, or something of that nature."
When Jane's father came home he went to see Jane and then asked Dew what had happened. Dew said, "I fucked up." Dew said this because he had touched Jane's buttocks, not because he had touched her buttocks under her shorts or her vaginal area. Dew denied doing the latter two acts. Dew denied moaning when he touched Jane's buttocks. Dew also denied telling Jane that he was frustrated with his sex life and that he always wanted to touch her buttocks. The day after the incident Dew called the police and reported what he had done to Jane in the bathroom.
DISCUSSION
I. SUFFICENT EVIDENCE SUPPORTED THE CONVICTION
A. General Legal Principles
The prosecution must prove all elements of the charged offense and all facts necessary to establish each of those elements beyond a reasonable doubt. (People v. Flood (1998) 18 Cal.4th 470, 524.) Where a defendant challenges the sufficiency of the evidence supporting a conviction, we review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Jennings (1991) 53 Cal.3d 334, 364.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Little (2004) 115 Cal.App.4th 766, 771.) " 'Substantial evidence includes circumstantial evidence and any related reasonable inferences drawn from that evidence.' " (People v. Clark (2011) 52 Cal.4th 856, 943.) Although the jury must acquit if it finds circumstantial evidence susceptible of two reasonable interpretations (one suggesting guilt, one innocence), the appellate court may not reverse simply because the circumstances might also reasonably reconcile with a contrary finding. (People v. Farnam (2002) 28 Cal.4th 107, 143.)
Section 647.6, subdivision (a)(1) punishes "[e]very person who annoys or molests any child under 18 years of age. . . ." The subdivision requires "(1) conduct a ' "normal person would unhesitatingly be irritated by" ' [citations], and (2) conduct ' "motivated by an unnatural or abnormal sexual interest" ' in the victim." (People v. Lopez (1998) 19 Cal.4th 282, 289 (Lopez).) "[T]the words 'annoy' and 'molest' . . . are synonymous and generally refer to conduct designed to disturb, irritate, offend, injure, or at least tend to injure, another person." (Ibid.) An individual can violate section 647.6, subdivision (a)(1) without touching the victim. (Lopez at p. 289.) "[T]o determine whether the defendant's conduct would unhesitatingly irritate or disturb a normal person, we employ an objective test not dependent on whether the child was in fact irritated or disturbed." (Id. at p. 290.)
B. Analysis
Dew contends that the jury found him not guilty of felony sexual battery and all lesser included offenses because Jane had embellished or fabricated what had allegedly occurred in her bedroom. He claims that the jury convicted him of the misdemeanor charge of annoying or molesting a child because he admitted that he had touched Jane's buttocks. Despite his admission to touching Jane's buttocks, he argues that the evidence did not show that his touching was motivated by an unnatural or abnormal sexual interest in Jane, but to check on Jane's physical fitness. He also contends that a normal person in Jane's circumstances would not unhesitatingly be irritated by his touching because the entire family focused on physical fitness.
We conclude that sufficient circumstantial evidence exists showing that Dew's touching of Jane's buttocks was motivated by an abnormal sexual interest. " 'Direct evidence of the mental state of the accused is rarely available except through his or her testimony [which the jury] must be free to disbelieve . . . and to infer that the truth is otherwise when such an inference is supported by circumstantial evidence regarding the actions of the accused.' " (People v. Carr (2010) 190 Cal.App.4th 475, 488-489.) Here circumstantial evidence, both before and after the incident, creates a reasonable, if not compelling, inference that Dew had the requisite mental state.
Months before the incident, Dew made "cupping" gestures with his hands suggesting he wanted to grab Jane's buttocks. Dew told Jane several times that his wife was not "giving him sex." He also told Jane that he wanted to grab her "bottom" when she wore her pajama shorts. On the day of the incident Dew insisted that Jane show him the photograph of her on her phone, telling her that he would not move the car until she did so. When he saw the photograph he commented, "Damn, that's a nice picture." After the incident, Dew apologized to Jane's father in a text message stating he was "going to get help." Dew's statement to his wife that he had "to leave" because he "touched [Jane's] butt" also reasonably indicates that he did not touch Jane's buttock to gauge her fitness level but rather because of his sexual interest in Jane. Even under Dew's version of what happened in the bathroom (i.e., that Jane had invited him to touch her buttocks to evaluate her physical fitness), Dew sensed the impropriety of his action as he admitted that he immediately "didn't feel right about it."
The jury could have reasonably concluded that a normal person would unhesitatingly have been irritated if an adult male approached a teenage girl, dressed in tight pajama shorts in her bathroom and touched her buttocks for a few seconds while moaning. The evidence also shows that the touching did irritate or annoy Jane as she immediately texted Dew, telling him that "things went too far." Later that night, Jane was crying and very upset.
The evidence supports the jury's findings so that a reversal of the judgment is not warranted. (People v. Farnam, supra, 28 Cal.4th at p. 143.) In fact, the totality of circumstances is not reasonably reconciled with a contrary finding.
II. ALLEGED INSTRUCTIONAL ERROR
A. Additional Background
Without objection, the court instructed the jury with CALCRIM No. 1122 as follows:
"The defendant is charged in Count 2 with annoying or molesting a child in violation of Penal Code Section 647.6.
"To prove that the defendant is guilty of this crime, the People must prove the following:
"1. The defendant engaged in conduct directed at a child;
"2. A normal person, without hesitation, would have been disturbed, irritated, offended, or injured by the defendant's conduct;
"3. The defendant's conduct was motivated by an unnatural or abnormal sexual interest in the child;
"AND
"4. The child was under the age of 18 years at the time of the conduct.
"It is not necessary that the child actually be irritated or disturbed. It is also not necessary that the child actually be touched. [¶] It is not a defense that the child may have consented to the act. [¶] Under the law a person becomes one year older as soon as the first minute of his or her birthday has begun.
"A defendant is not guilty of this crime if he actually and reasonably believed the child was at least 18 years of age. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe the child was at least 18 years of age. If the People have not met this burden, you must find the defendant not guilty of this crime."
B. Analysis
Dew notes that his defense to the allegation that he touched Jane's buttocks was that the touching was not done for a sexual purpose, but was normal conduct for a family that regularly worked out. He uses the example that it is normal for a football player to slap another player on the butt after a good play, but it would not be normal to slap some random person on the butt. Dew asserts that, under the unusual factual background of this case, the trial court erred by failing to sua sponte instruct with a modified version of CALCRIM No. 1122 telling jurors that a normal person in the same situation and circumstances as Jane, without hesitation, would have been disturbed, irritated, offended, or injured by his conduct. To the extent an objection was required to preserve this issue for appeal, he contends that trial counsel's failure to object and request such an instruction constituted ineffective assistance of counsel.
In criminal cases, the trial court has a sua sponte duty to instruct the jury on all general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) However, "[a] trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a request from counsel [citation], and failure to request clarification of an otherwise correct instruction forfeits the claim of error for purposes of appeal." (People v. Lee (2011) 51 Cal.4th 620, 638.)
As a threshold matter, Dew does not contend that CALCRIM No. 1122, the standard instruction for the crime of annoying or molesting child, is deficient or misleading for the "average" section 647.6 prosecution. Rather, he claims the instruction is inadequate based on the unusual facts of this case. Dew's argument that the jury should have been instructed how a normal person in the same situation and circumstances as Jane would have reacted to the butt touching amounts to a request for a pinpoint instruction because it relates particular facts (the fitness lifestyle of Jane's family) to an element of the charged offense (whether a normal person without hesitation would have been disturbed, irritated, offended, or injured by the defendant's conduct). (People v. Nelson (2016) 1 Cal.5th 513, 542.) Accordingly, defense counsel's failure to request a pinpoint instruction forfeited his claim of error on appeal. (People v. Jennings (2010) 50 Cal.4th 616, 675.)
Dew also makes a conflicting argument that the court's failure to modify CALCRIM No. 1122 to allow jurors to consider Jane's particular situation and circumstances omitted a necessary element of the offense. Dew, however, cited no authority that the victim's situation and circumstance is an element of the offense and we reject this suggestion because CALCRIM No. 1122 contains a correct and complete statement of the law. (See Lopez, supra, 19 Cal.4th at pp. 289-290 [setting forth elements of the crime].)
Having concluded that the trial court did not have a sua sponte duty to instruct the jury how a normal person in the same situation and circumstances as Jane would have reacted to the butt touching, we turn to Dew's argument that his trial counsel rendered ineffective assistance by failing to request that CALCRIM No. 1122 be modified to address this issue.
A defendant seeking reversal for ineffective assistance of counsel must prove both deficient performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.) To show prejudice, defendant must show a reasonable probability that he would have received a more favorable result had counsel's performance not been deficient. (Id. at pp. 694-695.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.) "The likelihood of a different result must be substantial, not just conceivable." (Harrington v. Richter (2011) 562 U.S. 86, 112.) "On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Where, as here, counsel's trial tactics "for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.) Dew has not shown that there could be no conceivable reason for defense counsel's actions.
First, CALCRIM No. 1122 correctly states the law. (See Lopez, supra, 19 Cal.4th at pp. 289-290.) Dew's contention that the jury needed to be instructed regarding how a normal person in the same situation and circumstances as Jane would have reacted to the touching is contrary to existing law that applies an objective standard and does not require that the child in fact be annoyed by the defendant's actions. (Ibid.) The failure to make a meritless argument is not deficient performance. (See People v. Ochoa (1998) 19 Cal.4th 353, 463 ["Representation does not become deficient for failing to make meritless objections."].)
Moreover, "how a general instruction applies to specific evidence or theories is an argument for counsel to make." (People v. Landry (2016) 2 Cal.5th 52, 100.) Defense counsel may have reasonably decided to address "normal" conduct for this family during closing argument, which he did. Defense counsel described Dew's interaction with Jane as a "typical conversation" about going to the gym and muscle development that ended in Jane asking Dew to touch her buttocks to gauge her fitness. Counsel further argued that the necessary element that Dew's touching was motivated by an unnatural or abnormal sexual interest in Jane did not exist.
In any event, even assuming the jury had been instructed as Dew suggests, we are not persuaded that there is a reasonable probability of a different result. Dew's defense to this charge at trial was the lack of sexual interest in Jane, not that a normal person would not have been disturbed, irritated or offended by the touching. By convicting Dew of this charge the jury necessarily rejected his argument that his touching was an innocent, nonsexual touching that was consistent with the background relationship of the parties. Additionally, Jane testified that when Dew touched her butt and moaned that she felt "Uncomfortable. Uneasy. Kind of weirded out." Jane testified that she "froze" and "didn't really know how to react or what to do. I was kind of hoping he would just leave." Thus, despite what Jane described as a "very close" relationship with Dew, which included invitations to look at specific body parts to evaluate fitness progress, Jane reacted like a normal person—disturbed, irritated or offended by Dew's conduct.
Accordingly, even assuming, without deciding, that trial counsel's failure to request a modification to CALCRIM No. 1122 constituted error, there is no reasonable probability that but for counsel's alleged error the jury would have reached a different result. As such, defendant's ineffective assistance of counsel claim fails.
III. ALLEGED PROSECUTORIAL MISCONDUCT
A. Additional Background
Dew's wife testified on direct examination about her emotional reaction when Dew admitting to her that he had touched Jane's buttocks. She became "upset" and went directly to Jane and demanded to know what picture Jane had shown Dew. Jane denied showing Dew a photograph. As Jane's father walked by, Jane started crying and said, "He touched my vagina, I'm like traumatized." After Jane's father demanded to see the photograph, Dew's wife saw that the photo showed Jane's butt in thong underwear.
Dew's wife became "livid." She went upstairs to yell at Dew about touching Jane's vagina. Dew looked "shocked" and claimed that did not happen. Dew then repeated that he had touched only Jane's buttocks. Dew's wife told Dew that he needed to contact the police to tell his side of the story. Dew's wife stated that she had never seen Dew act inappropriately with any other teenage female.
During cross examination, Dew's wife thought it was "weird" that Dew had touched Jane's buttocks. The prosecutor asked Dew's wife whether she yelled at Dew. When Dew's wife admitted this, the following exchange occurred:
"Q: And you were in his face?
"A: Yes.
"Q: And isn't it true that you were also hitting him?
"A: No.
"Q: And isn't it also true that you were saying, I am sick of your shit?
"A: No.
"Q: Isn't it true you were the one that told the [Dew] to leave the house?
"A: No."
After Dew's wife completed her testimony, and out of the jury's presence, defense counsel objected to the prosecutor's questions about hitting Dew and not taking his "shit," stating that these questions were not derived from any discovery. The court denied defense counsel's request to inquire where the prosecutor had obtained the information supporting the questions. After the prosecutor indicated that she would not be calling an impeachment witness, the court noted that Dew's wife had denied making the statements "And, frankly, I think the jurors will give it no import at this point. And, again, unless she has a good faith belief to ask further questions in that area of Mr. Dew, then [you] would object, and I would sustain those objections." The prosecutor asked no further questions in this area.
B. Analysis
Dew contends the prosecutor committed irreparable misconduct that mandated a new trial by asking Dew's wife whether she hit Dew, stated that she was "sick of [his] shit" or asked him to leave the house without a good faith belief these questions had a factual basis. The People contend that the prosecutor properly cross-examined Dew's wife regarding her responses on direct examination pertaining to her reactions the night of the incident.
A prosecutor may not " 'ask questions of a witness that suggest facts harmful to a defendant, absent a good faith belief that such facts exist.' " (People v. Bolden (2002) 29 Cal.4th 515, 562.) Here, the trial court denied defense counsel's request to inquire of the prosecutor where she got the information supporting the questions and the prosecutor did not volunteer this information. Thus, the record is insufficient to conclude that the prosecutor asked the questions solely to suggest the existence of facts harmful to Dew. (People v. $17,522.08 United States Currency (2006) 142 Cal.App.4th 1076, 1084 ["Error will never be presumed and must be affirmatively shown. Appellant bears the burden to provide a record on appeal which affirmatively shows that there was an error below and any uncertainty in the record must be resolved against appellant."].) Nonetheless, even assuming, without deciding, that the prosecutor committed misconduct in asking the questions, the assumed error was not prejudicial.
A prosecutor's intemperate behavior violates the federal Constitution when that behavior comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to deny the defendant due process. (People v. Stanley (2006) 39 Cal.4th 913, 951.) Here, the prosecutor asked three questions. These isolated questions did not create a pattern of egregious behavior that infected the trial with unfairness. (See People v. Frye (1998) 18 Cal.4th 894, 978 ["[A] single instance of misconduct committed by the prosecutor when she referred to evidence outside the record during closing argument does not evidence a pattern of misconduct warranting reversal."].)
People v. Frye was disapproved in part on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.
Under the state standard, conduct that does not render the trial fundamentally unfair is misconduct only if it involves the use of deceptive or reprehensible methods to attempt to persuade the trier of fact. (People v. Stanley, supra, 39 Cal.4th at p. 951.) "A defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct." (People v. Crew (2003) 31 Cal.4th 822, 839.)
Here, the jury found Dew not guilty of the more serious crime of felony sexual battery and the lesser included offenses of battery and misdemeanor sexual battery. Although the jury convicted Dew of misdemeanor annoying or molesting a child based on his act of touching Jane's buttocks, the evidence of this crime was not closely balanced as Dew suggests. (See pt. I.B, ante.) Finally, the court instructed the jury that attorney questions are not evidence and "[d]o not assume that something is true just because one of the attorneys asked a question that suggested it was true."
Under these circumstances, any prejudice caused by the assumed misconduct was minimal, and it was not reasonably probable that in the absence of the assumed error Dew would have achieved a more favorable result.
IV. NEW TRIAL MOTION
A. Additional Background
Dew moved for a new trial on his misdemeanor conviction arguing that the verdict was contrary to the evidence. (§ 1181, subd. (6).) He asked the court to exercise its discretion under People v. Robarge (1953) 41 Cal.2d 628 (Robarge) to determine the sufficiency of the evidence supporting his conviction. At the hearing on the motion, defense counsel stated that if the court was not inclined to grant the motion that it should reduce Dew's section 647.6 misdemeanor conviction to a violation of section 242, a simple battery, because the evidence did not show Dew had an abnormal and unnatural sexual interest in a child. The court denied the motion, stating:
"The Court: Essentially all sex offenses to some extent are he said/she said. Sometimes there is physical evidence to support the allegations obviously. It is not unusual. . . . I found the jurors heard the evidence. They are asking [sic] to judge the credibility of two parties, Mr. Dew and (Jane Doe). [¶] And certainly whether they find inconsistencies in her testimony, they still found her to be credible, and the instructions they were given, they found the conduct to be such that it satisfied the section, 647.6 section, that it was inappropriate contact, however you want to view it, it met the standards of [section] 647.6."
The court subsequently concluded that it lacked authority to reduce the charge and denied that request.
B. General Legal Principles
The court may grant a new trial when the verdict is contrary to the evidence. (§ 1181, subd. (6).) In deciding such a motion, the trial judge "independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a '13th juror.' " (Porter v. Superior Court (2009) 47 Cal.4th 125, 133.) The trial court must "consider the probative force of the evidence and satisfy itself that the evidence as a whole is sufficient to sustain the verdict. . . . This does not mean, however, that the court should disregard the verdict or that it should decide what result it would have reached if the case had been tried without a jury, but instead that it should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict." (Robarge, supra, 41 Cal.2d at p. 633.)
"A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. ' "The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." ' " (People v. Davis (1995) 10 Cal.4th 463, 524.) Such an abuse of discretion arises if the trial court "misconceives its duty, applies an incorrect legal standard, or fails to independently consider the weight of the evidence." (People v. Carter (2014) 227 Cal.App.4th 322, 328.)
C. Analysis
Dew contends that the trial court's ruling on the motion shows it did not understand, or failed to carry out, its duties under section 1181, subdivision (6), and that the matter should be remanded so that the trial court can properly perform its function. We disagree.
Prior to ruling, the court stated that it had reviewed the motion filed by defense counsel. The motion set forth the correct standard of review, including that the trial judge decides the sufficiency of the evidence after evaluating the credibility of the witnesses and must independently review the evidence to satisfy itself that the evidence is sufficient to sustain the verdict. Additionally, while the trial judge did not state it was exercising independent review, the record does not reflect any misunderstanding of the standard, such as referring to being bound by the jury's findings. Here, the trial judge's statements, while couched in terms of jurors hearing the evidence, deciding credibility and evaluating whether the evidence satisfied the standard of section 647.6, do not suggest the trial court misunderstood its duty to independently review the evidence. Rather, these statements suggest the trial court, acting as a 13th juror, came to the same conclusion as did the jurors.
This case is unlike Robarge, supra, 41 Cal.2d 628 where the court remanded for another hearing on a new trial motion because the trial court stated it adhered to the rule that the jurors are the sole judges of credibility " 'even though the Court disbelieves what the witnesses may have said [and stated it was] awfully hard for the Court . . . to believe' " the sole witness who identified the defendant as the perpetrator. (Id. at p. 634.) While a better practice is to refer to the specific burden of proof in announcing the court's ruling, the failure of the trial judge to do so here does not show it applied the wrong standard. (People v. Price (1992) 4 Cal.App.4th 1272, 1276.)
Our review is limited to whether the trial court manifestly and unmistakably abused its discretion when it denied the motion. (People v. Davis, supra, 10 Cal.4th at p. 524.) We conclude there was no manifest and unmistakable abuse of discretion. Accordingly, we reject Dew's argument that a remand is necessary for a rehearing on his new trial motion.
"[A] trial court considering a section 1181 motion to modify a verdict on the ground that it is contrary to the evidence is limited to the three options specified in the statute: (1) It can set aside the verdict of conviction and grant the defendant a new trial; (2) it can deny the motion and enter judgment on the verdict reached by the jury; or (3) it can modify the verdict either to a lesser degree of the crime reflected in the jury verdict or to a lesser included offense of that crime." (People v. Lagunas (1994) 8 Cal.4th 1030, 1039, italics omitted.) Dew argued below that the trial court should reduce his section 647.6 misdemeanor conviction to a violation of section 242, a simple battery. Although Dew did not repeat this argument on appeal, we note that battery is not a lesser included offense of child annoyance under the elements test because section 647.6, subdivision (a)(1) does not require a touching (Lopez, supra, 19 Cal.4th at p. 289), while battery cannot be accomplished without a touching (People v. Marshall (1997) 15 Cal.4th 1, 38). Dew has not cited, and we are unaware of, any charge that is a lesser included offense to a misdemeanor charge of annoying or molesting a child. --------
DISPOSITION
The judgment is affirmed.
NARES, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.