Opinion
G050416
01-26-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID GARCIA, Defendant and Appellant.
Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Christen Somerville, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10NF0911) OPINION Appeal from a judgment of the Superior Court of Orange County, John L. Flynn, Judge. Affirmed. Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted David Garcia of five counts of committing lewd acts on a child under age 14. (Pen. Code, § 288, subd. (a) [counts 1-3 (victim A.G.), counts 4-5] (victim Frances R.); all statutory references are to the Penal Code.) The jury also found he committed the offenses against more than one victim (§ 667.61, subd. (b), (e)(5) [imposing 15-years-to-life term]), and engaged in substantial sexual conduct (§ 1203.066, subd. (a)(8) [counts 1 & 3].) Garcia contends the trial court abused its discretion and violated his constitutional rights when it failed to discharge and replace Juror No. 121 for misconduct on its own motion. He also argues the statute of limitations barred prosecution of the charges involving Frances R. (counts 4 & 5). For the reasons expressed below, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
A.G. (Counts 1-3)
A.G. (born July 1998) described three incidents of sexual abuse occurring before she entered the third grade. When she was six or seven years old (count 3), A.G. and her brother were watching television in the living room of their grandfather David Garcia's home while their stepgrandmother Kelly was away. A.G. went into Garcia's bedroom, where he was on the bed watching television, and laid down next to him. Garcia stood up and closed the bedroom door. Without taking off his shorts or A.G.'s clothes, Garcia stood behind A.G. and "dry hump[ed]" her buttocks with his penis. Afterward he said, "Don't tell anyone or I'll disappear."
On a subsequent occasion (count 1), A.G. was sitting on Garcia's bed. He stood in front of her, directing her to orally copulate him, and he ejaculated in her mouth.
The final incident (count 2) apparently occurred sometime near the end of second grade. A.G. was in the swimming pool and Garcia touched her on the legs and buttocks over her bathing suit. Later, Garcia told her to come in the house because her father was on the phone. After walking into Garcia's bedroom, Garcia put a towel on the bed, took off A.G.'s bathing suit, put her on the towel, put her legs on his shoulders, and licked her vagina. A.G. did not tell anyone because her family was happy and she did not want Garcia to leave.
More than a year later, when A.G. was in third grade, she disclosed the abuse to a friend, and a week or so later, A.G. told her older brother, who alerted their stepfather. Eventually, A.G. described the abuse to law enforcement officers and a Child Abuse Services Team (CAST) interviewer. Frances R. (Counts 4-5)
Frances R. described her aunt Kelly and Garcia as second parents. She visited them in their home almost every weekend. Garcia began acting inappropriately toward her around 1998 when she was about eight years old. On the first occasion (count 4), she was sitting on Garcia's lap watching television when he put his hands under her underwear and rubbed her bottom until she told him to stop.
The second incident (count 5) also occurred when she was eight years old. After spending the weekend at their house, she walked into Garcia's bedroom to kiss him goodbye. When she did so, he put his tongue in her mouth.
Over the next four years, Frances would not go into a room alone with Garcia. During this time, she learned something had happened between Garcia and her older sister M.C.
In 2002, when Frances was about 12 years old and in the seventh grade, the family went to Mexico on vacation. Frances drove an all-terrain vehicle with Garcia riding behind. Garcia pretended he was falling off and grabbed her breasts, but let go almost immediately. She mentioned the incident to a cousin, but nothing came of the conversation. Uncharged Acts Involving M.C.
When M.C. was six or seven years old she and her brother frequently spent the night at her aunt Kelly and Garcia's home in Lakewood. M.C. slept between the couple. Kelly would arise early and leave for work. M.C. would fall back asleep, but frequently would awake to discover her underwear down and Garcia touching her vagina with his fingers. He made circles and then put his fingers inside her vagina. Garcia also molested M.C. in the afternoon while her aunt was at work. On two occasions, he touched her vagina and placed her hand on his penis, moving it up and down. On other occasions, Garcia would put her hand in his pants. The incidents continued after Garcia moved to Westminster, but stopped at some point when M.C. was in the sixth grade.
Following trial in April 2014, the jury convicted Garcia as noted above. In June 2014, the court sentenced Garcia to an aggregate term of 60 years to life comprised of consecutive 15 years to life terms for counts 1-4, and a concurrent 15 years to life term for count 5.
II
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion or Violate Garcia's Constitutional Rights by Failing to Discharge Juror No. 121
Garcia contends the trial court abused its discretion and violated his constitutional rights (see U.S. Const., Amends. VI [impartial jury] & XIV [due process]; Cal. Const., art. I, § 16) when it failed to discharge and replace Juror No. 121 for misconduct on its own motion. Garcia's claim fails for two reasons, however. Garcia forfeited the issue because he failed to ask the court to discharge the juror or object to the court's decision finding no misconduct. On the merits, the conversation between the jurors was trivial in nature and did not constitute prejudicial misconduct.
1. Factual Background
During trial, the prosecutor advised the court A.G.'s brother Anthony overheard a female juror, later determined to be Juror No. 121, talking to another female juror, Juror No. 141, during a break in testimony. Anthony said he heard Juror No. 121 say something like, "[s]he's 15, do you believe [or think] she did it?" Juror No. 141 moved her head and responded, although Anthony could not hear what she said. Fifteen-year-old A.G. had been testifying before the break.
The court questioned Juror No. 121. She explained that while waiting in line to use the restroom during the afternoon break, she sighed heavily and a conversation ensued with two other female jurors. Juror No. 121 told them it was emotionally difficult to listen to the testimony, and at least one of the other women agreed. Juror No. 121 walked back into the hallway and sat on a bench next to two other female jurors, one younger and one older. Juror No. 121 spoke with a juror about her purse, and asked what to expect because she had never served on a jury. The juror responded they would have to listen to the testimony and "it would just go from there." Juror No. 121 asked the juror if she found it emotionally difficult to listen to the testimony, and the older woman agreed. Juror No. 121 denied making any comments about the testimony, A.G.'s age or her credibility. She did make a passing comment to another juror about the age of a woman in the audience who did not testify, and there might have been some agreement the woman looked older than 15.
Juror No. 141 stated she did not hear any conversations about the case, but was part of a conversation about whether a girl in the courtroom audience was 15 years old.
Juror No. 162 told the trial court she had been sitting on a bench in the hallway with Juror No. 121, and either Juror No. 192 or Juror No. 129. Juror No. 162 remarked the process was a lot harder than she thought it would be. Someone said, "she did not look like she is 15 . . . ." Jurors Nos. 192 and 129 did not recall any conversations during the break regarding anyone looking 15, whether anyone was believable, or did not discuss any aspect of the case.
The prosecutor stated it appeared jurors were talking about the age of a member of the audience and no further action was necessary. Defense counsel agreed the jurors were commenting about an individual in the audience and not a witness, but pointed out the inquiry revealed jurors had been discussing the case against the court's admonitions.
The trial court concluded jurors had discussed the age of a female in the audience, but she was not a witness. There had been some discussion about the case, namely the "emotional" nature of the testimony, but this discussion was minimal. The court declined to find jurors committed misconduct, but said it would admonish the panel not to discuss such matters. The court thereafter advised the jury not to discuss anything that happened in the courtroom, including their feelings or observations about the testimony.
2. Analysis
Garcia argues Juror No. 121 displayed an inability to perform her duty when she ignored instructions not to converse with anyone, including other jurors, about the case during the trial. He asserts Juror No. 121 disobeyed the court's express instructions not to talk to fellow jurors about anything heard in the courtroom before the case was submitted to the jury for deliberation, and her statement about how emotionally difficult she found A.G.'s testimony demonstrated she had formed "an initial impression of" A.G.'s credibility that "was the equivalent of obtaining evidence out of court . . . ."
Garcia did not object to the trial court's decision to admonish the jury, and he did not ask the court to recuse Juror No. 121, expressing no concern that she may have engaged in misconduct. Garcia's failure to raise the issue below forfeits the claim on appeal. (See People v. Holloway (2004) 33 Cal.4th 96, 124 (Holloway) [defendant forfeited juror misconduct issue by failing to seek the juror's excusal or otherwise object to the court's course of action].)
On the merits, Garcia's juror misconduct claim fails. "Jurors must be admonished not to 'form or express any opinion about the case until the cause is finally submitted to them.' (§ 1122, subd. (b).) Prejudgment 'constitute[s] serious misconduct' [citation], raising a presumption of prejudice. The presumption is rebutted 'if the entire record . . . indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant.' [Citation.] 'On appeal, . . . whether juror misconduct was prejudicial presents a mixed question of law and fact "'subject to an appellate court's independent determination.'" [Citation.] We accept the trial court's factual findings and credibility determinations if supported by substantial evidence.'" (People v. Weatherton (2014) 59 Cal.4th 589, 598.)
Here, we agree Juror No. 121 violated the trial court's repeated admonitions not to discuss the case until deliberations by commenting to other jurors it was emotionally difficult for her to listen to the testimony. Because Juror No. 121 may not have believed expressing her emotional difficulty in listening to the testimony constituted a discussion "about the case," the trial court reasonably could conclude "no deliberate disobedience to its admonitions had occurred . . . . Counsel were apparently also of that view, as they made no suggestion that any deliberate misconduct had occurred." (Holloway, supra, 33 Cal.4th at pp. 124-125.)
Substantial evidence supports the trial court's conclusion no prejudicial misconduct occurred. Juror No. 121's statement she found the testimony emotionally difficult did not demonstrate she had formed an opinion about A.G. as a witness or person, or that she would allow sympathy to influence her ultimate decision in the case. Juror No. 121 did not receive "evidence out of court" or engage in the more egregious type of misconduct the Supreme Court described in In re Hamilton (1999) 20 Cal.4th 273, 293-294 (Hamilton) [concealing bias on voir dire, consciously receiving outside information, discussing case with nonjurors, or sharing improper information with other jurors]; see People v. Daniels (1991) 52 Cal.3d 815, 864 [sitting juror discussed case with a nonjuror; trial court had the discretion to remove juror for misconduct].) Nothing in Juror No. 121's comments suggested a "complete inability [or refusal] to follow the court's instructions" or that she could not be a fair juror in the case and was not willing and capable of deciding the case solely on the evidence. (Holloway, supra, 33 Cal.4th at pp. 125-126 [juror's misconduct creates a rebuttable presumption of prejudice, but reversal required only where substantial likelihood one or more jurors were actually influenced by bias]; Hamilton, supra, at p. 296 [jury is a "'fundamentally human'" institution and if the jury "'system is to function at all, we must tolerate a certain amount of imperfection short of actual bias'"].) No basis exists to overturn the court's decision. B. Statute of Limitations Did Not Bar Prosecution of Counts 4 and 5
Garcia also argues the statute of limitations barred prosecution of the charges involving Frances R. (counts 4 & 5). The evidence demonstrated the offenses against Frances occurred between January and September 1998. The prosecution filed a complaint and caused an arrest warrant to issue in March 2010. (§ 804 [action against a defendant commences when arrest warrant is issued].) The statute of limitations for a violation of section 288 is 10 years. (§ 801.1 [prosecution for a felony offense listed in § 290, subd. (c), including § 288, shall be commenced within 10 years after commission of the offense
Although Garcia did not raise the issue in the trial court, we consider it on the merits under People v. Williams (1999) 21 Cal.4th 335, 338. --------
Here, the prosecution charged Garcia for the offenses involving Frances R. under the One Strike law based on allegations Garcia committed his offenses against multiple victims (§ 667.61, subds. (b), (c)(8), (e)(4)). Section 667.61, subd. (b) provides that "any person who is convicted of an offense specified in subdivision (c) [including lewd acts in violation of section 288, subdivision (a)] under one of the circumstances specified in subdivision (e) [including where "[t]he defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim] shall be punished by imprisonment in the state prison for 15 years to life." Section 799 provides, "Prosecution for an offense punishable by . . . imprisonment in the state prison for life . . . may be commenced at any time."
In People v. Perez (2010) 182 Cal.App.4th 231, 239-240 (Perez), the appellate court applied section 799 to a defendant who, like Garcia, was convicted of section 288 violations with true findings under the multiple victim provision of the One Strike law. Such a defendant, the court reasoned, has committed a felony "'punishable by . . . imprisonment in the state prison for life'" within the meaning of section 799. "Section 667.61 is an alternative penalty scheme that, when charged, defines the length of imprisonment for the substantive offense of violating section 288[ ]. Thus, the unlimited timeframe for prosecution set out in section 799 for an offense 'punishable by death or by imprisonment in the state prison for life . . .' applies, given that [the] defendant was found guilty of violating section 288[ ] and 'in the present case or cases' (§ 667.61, subd. (e)(5)) was found guilty of another such violation involving another victim (ibid.), and therefore was subject to the life-term sentencing provision contained in section 667.61, subdivision (b)." (Perez, at pp. 239-240.)
Perez distinguished People v. Turner (2005) 134 Cal.App.4th 1591 (Turner), relied on by Garcia, which concluded section 799 does not control when a defendant receives a life sentence based on qualifying prior convictions under the "Three Strikes" law (§ 1170.12). We agree with Perez the Turner opinion is not controlling. In Turner, the defendant faced a potential life sentence on a residential robbery charge based on allegations he suffered prior strike convictions under the Three Strikes law. The statute of limitations for the robbery offense had expired, but the trial court concluded section 799 governed because the Three Strikes law carried a life sentence. (Turner, supra, 134 Cal.App.4th at pp. 1595-1596.) The appellate court in Turner reversed based on the distinction between recidivist allegations and conduct constituting the charged offense. Turner explained a sentence under the Three Strikes law, "is not a punishment specified by statute for an 'offense,' i.e., the current act for which the defendant is to be prosecuted." (Id. at p. 1597.) Rather, "[i]t is an alternative sentence imposed upon those who commit a current felony offense, and who are recidivist offenders." (Ibid.) Specifically, Turner observed, "sections 799 and 805 refer only to prosecution for an 'offense,' and punishment prescribed by 'statute for the offense,' not to prosecution and punishment that applies to a particular offender, and which is based upon facts other than the commission of the offense for which he or she is being prosecuted. The Penal Code defines an 'offense' as 'an act committed or omitted in violation of a law forbidding or commanding it.' [§ 15]." (Id. at pp. 1596-1597.) Thus, Turner disregarded the Three Strikes law in determining the applicable statute of limitations for the defendant's crimes because the punishment prescribed under that law applies to a particular offender based on his past criminal conduct, not on the particular circumstances attendant to his present offenses. (Turner, supra, at p. 1597.)
Unlike the life sentence at issue in Turner, Garcia's life sentence was not predicated on past criminal behavior. Rather, it was based on the fact he victimized multiple children in carrying out the charged offenses. (See Anthony v. Superior Court (2010) 188 Cal.App.4th 700, 717 [no statute of limitations for attempted premeditated murder under section 664, which carries life term; Turner limited to its particular facts because it "was entirely focused on the nexus between the statute of limitations scheme and the Three Strikes law"].)
Thus, Garcia's criminal acts exposed him to the alternate penalty under the One Strike law, which created a separate sentencing scheme. Garcia argues Perez was wrongly decided and asserts the fact making the offense punishable by life imprisonment must be "a fact directly connected to the offense in issue" that "allegedly existed at the time that offense was committed." He draws this distinction from two Supreme Court cases relied on by Perez. (People v. Jones (2009) 47 Cal.4th 566; People v. Brookfield (2009) 47 Cal.4th 583.) The defendants in both cases were convicted of shooting at an inhabited dwelling. In Jones, the Supreme Court held that by personally shooting the firearm to benefit a criminal street gang the defendant committed an offense punishable under an alternative sentencing provision rather than an enhancement and therefore was subject to an additional 20-year enhancement for "personally and intentionally" discharging a firearm under section 12022.53, subdivision c. (Jones, at p. 569.) In Brookfield, the Supreme Court held the 12022.53 gun enhancement did not apply to a defendant convicted of aiding another gang member in the gang-related crime of discharging a firearm at an inhabited dwelling. (Brookfield, at p. 586.) Perez relied on these two cases because they illustrated "the distinction between sentence enhancements, which merely add to the substantive offense's term, and alternative penalties, which provide for a different term of imprisonment for the substantive offense itself under certain circumstances." (Perez, supra, 182 Cal.App.4th at pp. 238-239.) In those cases, the fact triggering a life term did occur at the same time as the offense, namely when the defendant shot at an inhabited dwelling (§ 246) with the intent to benefit a criminal street gang (§ 186.22, subd. (b)(4).) The Supreme Court concluded the life term triggered by the gang finding also triggered an enhancement for personally using a firearm (§ 12022.53).
Garcia contends Perez erroneously relied on Jones and Brookfield because the Supreme Court "was not asked to, nor did it, decide[] whether an alternate penalty scheme (such as Penal Code section 667.61), can define the length of imprisonment for a substantive offense charged, when that alternate penalty scheme could not apply to that first offense unless and until the defendant committed another offense against a separate victim." True, these cases did not address the statute of limitations issue presented in this case, but they also did not suggest the fact triggering a "penalty provision" or an "alternative penalty for the underlying felony" must occur at the same time as the offense. As noted, Jones distinguished between a life sentence imposed as a sentence enhancement (a punishment added to the base term) and a life sentence imposed as the penalty for the underlying felony under specified conditions. "The difference between the two is subtle but significant. 'Unlike an enhancement, which provides for an additional term of imprisonment, [a penalty provision] sets forth an alternate penalty for the underlying felony itself, when the jury has determined that the defendant has satisfied the conditions specified in the statute.' [Citation.]" (Jones, supra, at p. 578.)
Here, section 667.61 sets forth an alternate penalty of life imprisonment for lewd acts when the jury finds the defendant has met the conditions specified in that section, including suffering a conviction in the present case for committing lewd acts against more than one victim. Accordingly, section 799 allowed the prosecution to commence at any time.
Garcia also argues application of section 799 to the offenses involving Frances violates his federal and state due process rights and runs afoul of the ex post facto prohibition of the United States Constitution (U.S. Const., art. 1, § 10 ["No State shall . . . pass any . . . ex post facto Law"]; U.S. Const., Amend. XIV [due process]; Cal. Const., art. I, § 15 [due process].) He contends "an indefinite limitations period under section 799 would exist only if a jury found 'true' the 'multiple victims' allegation, for in light of the Ex Post Facto Clause, . . . that is the only way the 10-year limitations period could have been extended indefinitely before it ran. Yet that makes no sense, that the only way an applicable limitations period can be decided will depend on a jury's findings after a trial already has taken place."
Section 799 was added in 1984. The One Strike law became effective November 30, 1994. (Stats.1994, 1st Ex.Sess.1993-1994, ch. 14X, § 1, pp. 8570-8572.) At all times relevant to counts 4 and 5, the One Strike Law carried a potential life sentence for violations of section 288, subdivision (a), committed against more than one victim. The offenses against Frances R. were committed between January and September 1998. Thus, when Garcia committed his lewd act offenses against Frances he faced a potential life term if he was later convicted of lewd offenses against more than one victim. That is what occurred here. We discern no ex post facto problem. Consequently, we need not resolve Garcia's hypothetical scenario asking whether the trial court would be required to dismiss counts 4 and 5 if the jury found him not guilty of the counts involving A.G. and found the multiple victims allegation untrue.
Finally, Garcia argues application of section 799 denies him due process because a "statute of limitations is the primary guarantee protecting criminal defendants during the prearrest stage, from preaccusation delay and overly stale charges," where it "becomes difficult or impossible for a suspect to defend himself." He argues application of section 799 "would defy the requirement embodied in federal constitutional law that a statute of limitations 'provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant's right to a fair trial would be prejudiced.' [Citation.] [¶] Therefore, to avoid a due process violation, the mere inclusion of a One Strike 'multiple victims' allegation in the information (which could not establish that the punishment for counts 4 and 5 would include life terms unless and until the jury found those allegations to be true), could not constitutionally extend the limitations period on counts 4 and 5 indefinitely, so as to render timely the eventual prosecution of those charges." We are aware of no authority precluding on due process grounds the Legislature's decision not to establish a statute of limitations for certain crimes.
III
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.