Opinion
B297339
03-10-2020
THE PEOPLE, Plaintiff and Respondent, v. SANTOS GARCIA, Defendant and Appellant.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Paul M. Roadarmel, Jr. and Blake Armstrong, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. BA457211 APPEAL from a judgment of the Superior Court of Los Angeles County, Richard S. Kemalyan, Judge. Affirmed with directions. Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Paul M. Roadarmel, Jr. and Blake Armstrong, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Santos Garcia was convicted of sexual penetration of his eight-year-old niece and sentenced to 40 years to life. He contends that there is insufficient evidence he sexually penetrated the victim's genital opening; that the trial court erred by failing to instruct the jury sua sponte on the lesser included offense of lewd act on a child; and that we must correct the minute order and abstract of judgment to reflect the court's oral pronouncement of sentence. Though we reject defendant's first two arguments, we agree with the third. We therefore affirm and remand with directions to correct the abstract of judgment and minute order.
PROCEDURAL BACKGROUND
By information dated October 5, 2017, defendant was charged with two counts of sexual penetration of a child under 11 years old (Pen. Code, § 288.7, subd. (b); counts 1-2) and two counts of lewd act on a child (§ 288, subd. (a); counts 4-5). Defendant pled not guilty. After a jury trial at which he did not testify, defendant was found guilty as charged.
All undesignated statutory references are to the Penal Code.
Count 3 was dismissed at the preliminary hearing. To avoid confusion, for trial purposes only, the court renumbered count 4 as count 3, and renumbered count 5 as count 4. This opinion refers to the counts as designated in the information, minute orders, and abstract of judgment.
The court sentenced defendant to an aggregate determinate term of 10 years followed by an aggregate indeterminate term of 30 years to life. For the determinate sentence, the court selected count 4 as the base term and imposed the upper term of eight years. The court imposed two years for count 5—one-third the middle term of six years—to run consecutively. For counts 1 and 2, the court imposed indeterminate terms of 15 years to life, to run consecutively to the determinate sentence and each other. The court awarded defendant 759 days of custody credit—660 days of actual credit and 99 days of local conduct credit.
Defendant filed a timely notice of appeal.
FACTUAL BACKGROUND
Kelsea M. was seven or eight years old when defendant—her paternal great uncle—and his family began sharing a house with her family. Kelsea's family lived in the back of the house; defendant lived in the front with his wife and four children. A kitchen and a door separated the two families' living areas. Kelsea was close to defendant's family and spent a lot of time with his children. She called him Uncle Santos. But when Kelsea was about eight years old, defendant began to sexually abuse her.
The first incident was in December 2014. Kelsea was home with defendant and his children while her parents were out Christmas shopping. She was lying on the floor of defendant's living room, watching a Christmas movie with one of her cousins. They were under a blanket. Defendant approached the girls and lay down between them. Kelsea felt defendant put his hand on her thigh and move it up towards her vagina. Then she felt him move his fingers into her "flower." The contact was "skin-to- skin," and Kelsea felt pressure, but she couldn't remember if defendant moved his fingers in any particular way. Kelsea didn't know what to do, so she called out to one of her cousins. The touching lasted for about two minutes.
At trial, the prosecutor used the analogy of a flower to help Kelsea describe where and how defendant touched her. Flower referred to the external genital tissues between the labia majora and the vaginal canal. We discuss this analogy in more detail below.
The next incident happened about a year later. Again, Kelsea was lying on the floor watching television with one of her cousins. When the cousin left to get something to eat, defendant approached Kelsea and lay down beside her. Defendant pulled down Kelsea's pants and underwear, and started touching her flower with his fingers. Then, defendant got on top of Kelsea from behind, and she "felt something weird" touch her "private part." She believed it was defendant's penis because it was bigger than his finger and she "felt more pressure." Kelsea called for her cousin, and defendant stopped. Defendant wiped Kelsea with a Hello Kitty blanket.
The information, jury instructions, and verdict forms all referred to this conduct as occurring "[o]n or between January 1, 2015, and June 30, 2015."
A criminalist for the Los Angeles County Sheriff's Department testified that DNA from two semen stains on the blanket matched defendant's DNA. Skin cells from the blanket contained DNA profiles from two sources—an unknown female and defendant. --------
Defendant abused Kelsea again sometime in January 2017. Kelsea was home by herself, doing her homework in her parents' bedroom, when defendant returned home from work. He approached her from behind and pulled down her pants. Kelsea felt defendant's penis go between her buttocks; though defendant's penis rubbed against her, it did not penetrate her anal opening. Kelsea felt uncomfortable, so she pulled up her pants, sat on the bed, and put her books in her lap. Defendant left the room.
DISCUSSION
1. Substantial evidence supports the convictions for counts 1 and 2.
A criminal defendant may not be convicted of any crime unless the prosecution proves every fact necessary for conviction beyond a reasonable doubt. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7, 15; In re Winship (1970) 397 U.S. 358, 364; People v. Tenner (1993) 6 Cal.4th 559, 566.) "This cardinal principle of criminal jurisprudence" (Tenner, at p. 566) is so fundamental to the American system of justice that criminal defendants are always "afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts." (United States v. Powell (1984) 469 U.S. 57, 67.)
Defendant contends there is insufficient evidence to support his convictions for counts 1 and 2 because the prosecution did not prove he penetrated Kelsea's genital opening. We disagree.
1.1. Standard of Review
In assessing the sufficiency of the evidence to support a conviction, we review the entire record to determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Albillar (2010) 51 Cal.4th 47, 59-60.) "The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may not reweigh the evidence or resolve evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) The same standard applies where the conviction rests primarily on circumstantial evidence. (People v. Thompson (2010) 49 Cal.4th 79, 113.)
Deference is not abdication, however, and substantial evidence is not synonymous with any evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) " 'A decision supported by a mere scintilla of evidence need not be affirmed on appeal.' [Citation.] Although substantial evidence may consist of inferences, those inferences must be products of logic and reason and must be based on the evidence." (In re James R. (2009) 176 Cal.App.4th 129, 135.) Likewise, we "may not ... ' "go beyond inference and into the realm of speculation in order to find support for a judgment." ' " (People v. Franklin (2016) 248 Cal.App.4th 938, 947; accord, People v. Waidla (2000) 22 Cal.4th 690, 735.)
1.2. Elements of Sexual Penetration
To convict defendant of sexual penetration of a child younger than 11 (§ 288.7, subd. (b); counts 1-2), the prosecution had to prove: defendant committed sexual penetration (§ 289); with a child younger than 11 years old; and, when he acted, defendant was at least 18 years old. (§ 288.7, subd. (b); see CALCRIM No. 1128.) As relevant here, sexual penetration "is the act of causing the penetration, however slight, of the genital ... opening of any person ... for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object." (§ 289, subd. (k)(1).)
Penetration of the female genital opening requires penetration past the outermost genitalia—namely, the labia majora (hereafter labia). (People v. Quintana (2001) 89 Cal.App.4th 1362, 1366-1367, 1371.) It does not require penetration of the vagina. (Ibid.; see People v. Paz (2017) 10 Cal.App.5th 1023, 1037 (Paz) ["although the term vagina has a well-established anatomical meaning, California courts have long treated it as a term of art synonymous with 'female private parts' "].)
Defendant does not dispute that penetration of the labia is sufficient to establish the penetration element of section 289. Instead, he argues there is insufficient evidence he penetrated Kelsea's labia.
1.3. There is substantial evidence defendant penetrated Kelsea's labia.
"In all sex-crime cases requiring penetration, prosecutors must elicit precise and specific testimony to prove the required penetration beyond a reasonable doubt. [Citation.]" (Paz, supra, 10 Cal.App.5th at p. 1038.) Thus, in Paz, we warned "prosecutors not to use vague, euphemistic language and to ask followup questions where necessary." (Ibid.) Certainly, encouraging a victim to discuss her "flower," as occurred here, is the kind of euphemistic language we cautioned against in Paz. In this case, however, flower was sufficiently defined that, when coupled with defendant's confession, there is substantial evidence of penetration. (See People v. Sanchez (2016) 246 Cal.App.4th 167, 173-178 [discussing corpus delicti rule where defendant's statement was the only evidence of penetration].)
During her direct examination of Kelsea, the prosecutor explained the female private parts this way: "the private part is sort of closed when you have your legs closed. ... So when you open your legs, it opens up like a little flower ... . And you have like what looks like little lips protecting the opening." Then, the prosecutor asked, "When he touched you in your private part where you pee, did he touch you on the outside part like this, somewhere in your flower, or somewhere inside the hole?"
In context, the meaning of these words is reasonably clear: outside is the outside surface of the labia; flower is inside the labia; and hole is the opening of the vaginal canal. Kelsea apparently understood these terms and could answer relatively precisely. So, when defense counsel asked her to explain what "flower" meant to her, Kelsea answered, "It's when—it's inside, but like not inside the hole." Kelsea's testimony must be read in that context.
For count 1, the first incident, which happened around Christmas 2014, Kelsea testified that defendant used his fingers to touch "somewhere in [her] flower." The contact was "skin to skin," and Kelsea "felt pressure." Because flower had been defined as inside the labia, the jury could reasonably conclude from this testimony that Kelsea meant that defendant's fingers penetrated her labia but did not enter her vaginal canal.
Turning to count 2, the prosecutor again explained, "When your legs open, there's a little flower with the lips ... and then there's the hole inside ... ." The prosecutor then asked, "Which part of your private did he touch? Was it outside, the flower, or the hole?" Kelsea replied that defendant touched "in [her] flower." Again, she felt pressure. And again, defendant used his fingers. But this time, defendant also touched her with his penis. Kelsea could not remember which area of her private part defendant's penis touched, but she did remember feeling pressure "in [her] flower." The jury could reasonably infer from this testimony that Kelsea understood the difference between touching that penetrated her labia and touching that didn't, and could further infer that defendant's fingers achieved the necessary penetration.
We need not determine whether Kelsea's testimony, standing alone, constitutes substantial evidence of penetration, however, because defendant himself corroborated Kelsea's account. When detectives interrogated him, defendant admitted that he had touched Kelsea twice. And, he admitted, both times, his fingers penetrated past her labia. A recording of the interrogation was played for the jury and admitted into evidence.
As such, we conclude there is substantial evidence of penetration to support defendant's convictions for counts 1 and 2.
2. Any instructional error was harmless.
" 'California law requires a trial court, sua sponte, to instruct fully on all lesser necessarily included offenses supported by the evidence.' (People v. Breverman (1998) 19 Cal.4th 142, 148-149 (Breverman); see id. at pp. 154-155, 162.) The requirement applies when there is substantial evidence that the defendant committed the lesser offense instead of the greater offense. (Id. at pp. 162, 177.)" (People v. Vasquez (2018) 30 Cal.App.5th 786, 792 (Vasquez).) "We review de novo the trial court's failure or refusal to instruct on a lesser included offense. [Citation.]" (Id., at p. 793.)
Defendant contends that, under the circumstances of this case, section 288 (lewd act on a child) is a lesser included offense of section 288.7 (sexual penetration of a child under 11), and the court was required, on its initiative, to instruct the jury on that lesser offense. No court has decided whether section 288 is, or can be, necessarily included in section 288.7. We need not be the first, however, because any error was harmless.
"In a noncapital case, the erroneous failure to instruct on a lesser included offense is typically an error of state law. [Citation.] Thus, we must reverse if there is a reasonable probability that the defendant would have obtained a more favorable outcome if the instruction had been given. [Citations.] A reasonable probability 'does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility. [Citations.]' [Citation.] An error is prejudicial whenever the defendant can ' "undermine confidence" ' in the result achieved at trial. [Citation.]" (Vasquez, supra, 30 Cal.App.5th at p. 798.)
Defendant contends the failure to instruct on section 288 was prejudicial because section 288 would have offered the jury a middle ground between the charged offense of sexual penetration and the lesser included offense of attempted sexual penetration, on which the court instructed at his request. Such a middle ground was required, he asserts, because "under the court's attempt instructions [CALCRIM No. 460], the jury was told that an attempted violation of section 288.7 did not require any actual touching." We are not persuaded.
The attempted-sexual-penetration instruction neither required actual touching nor required the jury to find that no touching had occurred. On the contrary, the instruction was entirely consistent with a conclusion that defendant unlawfully touched Kelsea for sexual arousal but did not sexually penetrate her—a conclusion defendant concedes was established.
Moreover, the jury didn't reject the lesser offense of attempted sexual penetration after protracted deliberations, as might be expected if it had grappled with the problem defendant raises. On the contrary, it's clear that if the jury considered the lesser offense at all, it rejected it unusually quickly. After a three-day trial, the jury needed less than 90 minutes to convict defendant of all four charged counts. (Compare Vasquez, supra, 30 Cal.App.5th at pp. 799-800 [failure to instruct on lesser included offense was prejudicial where the jury deliberated for two days, asked multiple questions, heard supplemental closing arguments, and acquitted the defendant of two counts, indicating it rejected the prosecutor's theory of the case].)
As such, we conclude any error was harmless.
3. The minute order and abstract of judgment must be corrected to reflect the oral pronouncement of judgment.
Defendant contends the sentencing minute order and abstract of judgment must be corrected to reflect the court's oral pronouncement of judgment. We agree.
In a criminal case, the trial court's oral pronouncement of the sentence constitutes the judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471 (Mesa).) The judgment must be imposed in the presence of the accused. (People v. Zackery (2007) 147 Cal.App.4th 380, 386-387 (Zackery); § 1193, subd. (a).)
While oral pronouncement of judgment is a judicial function, entering the judgment into the minutes and preparing the abstract of judgment are clerical functions. (Mesa, supra, 14 Cal.3d at p. 471; §§ 1207, 1213.) "The clerk cannot supplement the judgment the court actually pronounced by adding ... provision[s] to the minute order and the abstract of judgment. [Citation.]" (Zackery, supra, 147 Cal.App.4th at pp. 387-388.) Thus, to the extent a minute order or abstract of judgment diverges from the sentencing proceedings it purports to memorialize, it is presumed to be the product of clerical error. (People v. Mitchell (2001) 26 Cal.4th 181, 185 (Mitchell); Mesa, at p. 471.)
Courts have " 'the inherent power to correct clerical errors in [their] records so as to make these records reflect the true facts. [Citations.]' " (Mitchell, supra, 26 Cal.4th at p. 185.) Courts may exercise this authority any time, and appellate courts that have properly assumed jurisdiction of cases may order correction of an abstract of judgment or a minute order that does not accurately reflect the oral pronouncement of sentence. (Id. at pp. 185-188; People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.)
The sentencing minute order of February 27, 2019, and the abstract of judgment for the determinate part of the sentence both indicate that the court imposed a $300 sex offender fine (§ 290.3), $160 in operations assessments (§ 1465.8), $120 in conviction assessments (Gov. Code, § 70373), and a $400 restitution fine (§ 1202.4), and imposed and stayed a $400 parole revocation restitution fine (§ 1202.45).
According to the reporter's transcript, however, the court did not impose any of these fines and fees. As such, the sentencing minute order and abstract of judgment must be corrected to remove them. (See Mitchell, supra, 26 Cal.4th at pp. 185-188 [discussing the importance of correcting inaccurate abstracts of judgment on appeal]; see also People v. Hanson (2000) 23 Cal.4th 355 [restitution fine constitutes punishment for double jeopardy purposes]; People v. Stewart (2004) 117 Cal.App.4th 907, 911 [on silent record, failure to impose fine implies finding that defendant cannot pay].)
DISPOSITION
The judgment is affirmed. Upon issuance of the remittitur, the trial court is directed to correct the minute order of February 27, 2019, and the abstract of judgment for the determinate sentence to delete all fines and fees and to send a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICAL REPORTS
LAVIN, J. WE CONCUR:
EDMON, P. J.
EGERTON, J.