Opinion
F077242
08-06-2020
THE PEOPLE, Plaintiff and Respondent, v. JUAN DIEGO MENDOZA, Defendant and Appellant.
Victoria C. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and William K. Kim, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF166402A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. Victoria C. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Juan Diego Mendoza was convicted by a jury of two sexual offenses against his eight-year-old niece during a single incident, namely (1) committing a lewd act on a child under 14 years of age and (2) oral copulation of a child under 10 years of age. On appeal, he contends the trial court erred in instructing the jury with CALCRIM Nos. 362 and 371, and contends his abstract of judgment must be corrected to fix two clerical errors. We agree the abstract of judgment must be corrected, but we reject his challenges to the jury instructions and affirm.
STATEMENT OF THE CASE
On June 5, 2017, the Kern County District Attorney filed an information charging Mendoza with committing a lewd act on a child under 14 years of age (Pen. Code, § 288, subd. (a); count 1) and oral copulation or sexual penetration of a child under 10 years of age (§ 288.7, subd. (b); count 2). He was convicted on both counts and was sentenced to a term of 15 years to life on count 2; the court imposed and stayed a concurrent midterm sentence of six years on count 1.
Undesignated statutory references are to the Penal Code.
FACTS
Jane Doe was born in December 2005. Mendoza is Doe's uncle — her mother, A.'s, brother. In November 2016, Doe told her mother about an incident involving Mendoza that had happened two years before. Doe decided to tell her mother about what had occurred after watching a television show about children disclosing traumatic experiences to their parents.
Pursuant to California Rules of Court, rule 8.90, we refer to the victim by a pseudonym and to other witnesses by initials. No disrespect is intended.
In approximately September 2014, when Doe was eight years old, Alma, Mendoza's common law wife and Doe's aunt, along with her three children, picked Doe up at Doe's grandmother's house to take her to a birthday party on Marcus Street in Bakersfield, across the street from Mendoza's home. The party began around 5:00 p.m..
At the party, Doe was in a bounce house with her cousins when Mendoza approached her and asked where Alma was. Doe said Alma had gone back to her house across the street to change Doe's cousin's diaper. Mendoza told Doe, "Let's go find her." Doe obliged and the two walked across the street to the house. Mendoza knocked on the door, but Alma did not answer. He then took Doe behind the unattached garage at the back of the house. It was dimly lit and a German Shepherd was chained up nearby.
Now behind the house and out of sight from others, Doe stood with her back to the garage and Mendoza knelt on one knee and pulled down Doe's pants and underwear. She told him to stop and began to cry. As she stared at him, Mendoza touched her "middle part," her vagina, with his tongue for 10 to 15 seconds. Doe could see his tongue moving and said it was "wet" with lots of saliva; it felt "terrible." After Mendoza pulled away, Doe tried to wipe the saliva off with her underwear as she pulled up her pants. He then took a $10 bill out of his pocket, gave it to Doe, and told her not to tell anyone. This scared Doe and caused her to not tell anyone.
As Doe and Mendoza walked back around the house, Alma opened the door and said she was finished changing the baby. Doe gave the $10 to one of the other children when she returned to the party, where she stayed for two more hours. Her aunt later offered to take her home, but Mendoza said that he would instead. He drove her back to her grandmother's house. There he let her out and remained inside of the car until she went inside.
Doe was crying when she returned home. A. asked why she was crying, and Doe said that it was "nothing." After that day, Doe did not want to go to the bathroom by herself and refused to accompany the family to celebrate Mendoza's birthday.
At some time before the party, A. had taught Doe about the difference between good and bad touches. A. also told Doe about how she had been touched in a bad way by her own father. Doe refrained from telling her mother because her grandmother had cancer and Doe wanted Mendoza to be able to see her when she died.
On November 22, 2016, Doe told A. what Mendoza had done to her two years prior, and A. took her to the police station the next day. Doe spoke briefly with an Officer McNamara of the Bakersfield Police Department but was unwilling to provide information to him. Later that day, Detective Christina Abshire interviewed Doe. Doe told Detective Abshire that Mendoza touched her "middle part," which Doe identified as the female genitalia on a diagram, but she explained it was difficult to describe how he touched it. She instead drew a tongue on the diagram of a male to explain the touching.
Pretext phone call
After Doe's interview, Detective Abshire asked A. to participate in a pretext phone call with Mendoza, and A. agreed. During that call, which was recorded and played for the jury, Mendoza initially denied having done anything to Doe. He later stated he was drunk, but he "reacted" and "did not do anything." When A. insisted her daughter does not lie, Mendoza said that his life is already ruined and Alma notices everything and would send the police after him and leave him. A. responded by telling him she would not tell Alma.
A. told Mendoza he is sick and needs help. Mendoza responded that maybe he was sick, but explained that he "[didn't] have those thoughts anymore." He said that was when he used drugs, and said he is now "another person." He eventually admitted he pulled Doe's underwear down but "reacted" and asked himself, "What am I doing?" and pulled her underwear back up. A. told Mendoza that Doe is scared of him, and he said he has noticed. Mendoza denied ever touching Doe with his tongue.
Police interview
Mendoza was brought to the police station and interviewed by Detective Abshire. A second officer served as Mendoza's Spanish interpreter. The interview was audio and video recorded, and both the audio and video was played for the jury. At the beginning of the interview, Mendoza said he was unable to think of any reason why he would be at the police station speaking with officers. However, he later acknowledged A. had recently called him and accused him of touching Doe, and he said he thought that was the reason he was at the station. He stated he told A. everything that occurred, that his actions were a result of his being drunk, that he "reacted," asked himself what he was doing, and stopped.
Mendoza said he lived across the street from the party's location. Alma told him she was going to change a child, and at that time Doe was in the bounce house. He was going to take Doe to Alma, but instead took her into his backyard. He pulled down Doe's pants, got on his knees, and started to bend over when Doe began to cry. He admitted he "tried" to touch her private parts, but never specified with which part of his body he tried touching her. He then asked himself what he was doing, pulled up her pants, and stood up. He told Doe he "did something bad," and he gave her $10 not to tell anyone. He was sure he did not lick Doe's private parts, stating "I'm very sure I did not do that."
When Alma saw Doe, she asked him why Doe was crying. He answered she had been fighting with the other kids. Two hours later, Alma told him to drive Doe to Doe's grandmother's home, which he did. He dropped her off and waited in the car until someone opened the door and Doe went inside. Mendoza saw Doe many times after that, but he did not talk to her because she seemed scared of him. Mendoza was arrested at the conclusion of the interview.
Character witnesses
At trial, Mendoza called several character witnesses: his brother, his sister-in-law, his niece, his friend, and his coworker. All of the witnesses testified that they had seen him interact with children and never saw him do anything inappropriate. They agreed the conduct of which he was accused was inappropriate, but they did not believe he would do that. All of the witnesses, with the exception of his coworker, stated their opinion of Mendoza would not change even if the allegations against him were true. Mendoza's niece stated she attended the party in question and did not see Mendoza with Doe.
DISCUSSION
I. CALCRIM No. 362
The trial court provided the jury with the standard instruction concerning false statements, CALCRIM No. 362: "If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."
Mendoza contends the trial court prejudicially erred by giving the jury this instruction. The People contend Mendoza forfeited any challenge to this instruction by failing to object to it and, regardless, the instruction was proper. We need not address whether Mendoza forfeited his argument that the trial court improperly instructed the jury with CALCRIM No. 362 because we conclude the instruction was proper.
Specifically, Mendoza argues CALCRIM No. 362 allowed the jury to draw an irrational inference. He is correct in that the instruction allows for what is called a "permissive inference" to be made: if he lied about the charged crime, it may be inferred he was aware of his guilt of the crime. (People v. Ashmus (1991) 54 Cal.3d 932, 976-977, abrogation on other grounds recognized by People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 830, fn. 6.) " 'A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.' " (Id. at p. 977.)
Mendoza advances three supporting reasons for holding CALCRIM No. 362, as given in this case, allowed the jury to draw an irrational inference. First, it does not follow with substantial assurance from his initial denial of any wrongdoing during the pretext phone call with A., that he was aware of being guilty of oral copulation, as opposed to a lesser crime. Second, it does not follow with substantial assurance from his denial of any wrongdoing to A. during the pretext call, that he more likely than not committed the "charged crime[s]" rather one of the lesser included offenses the jury was instructed with. These first two reasons substantially form a single overriding argument: that CALCRIM No. 362 undermined any claim Mendoza may have felt a consciousness of guilt of a lesser crime other than oral copulation or lewd acts on a child and therefore created a presumption of guilt of the "charged crimes." Third, Mendoza claims the instruction "highlighted the possibility" his pretrial statements to police were false, which in turn would have allowed the jury to infer his "entire defense was false" since his defense theory was consistent with the statements he gave to police. In our view, none of Mendoza's reasons have merit.
We begin with the contention that CALCRIM No. 362 undermined any claim Mendoza may have felt consciousness of guilt only of lesser crimes and created a presumption of guilt of the "charged crimes." The Third District rejected an identical challenge to CALCRIM No. 362 in People v. Burton (2018) 29 Cal.App.5th 917 (Burton), albeit in a murder context. There, the defendant argued CALCRIM No. 362's reference to "the charged crime" and "the crime" undermines a claim that he "may have felt a consciousness of guilt of a lesser offense than first degree murder and therefore created a presumption of guilt of the charged crimes." (Burton, at p. 923.) Rejecting that argument, the Court of Appeal noted the jury had been instructed to determine " 'what specific crime was committed' if any" and was instructed on second degree murder, voluntary manslaughter, and self-defense. (Id. at p. 925.) When the totality of the instructions were considered, "the jury would understand that any consciousness of guilt evidenced by defendant's multiple lies ... would operate as to any degree of homicide, not merely first degree murder." (Ibid.)
Although the case before us does not involve a homicide, Burton is on point and controls our analysis. In Burton, the jury was instructed on the panoply of homicide offenses, not just on first degree murder. Similarly, the jury in Mendoza's case was not just instructed on the two "charged crimes"—(1) committing lewd acts on a child and (2) oral copulation—but on the lesser included offenses to those charged crimes—(1) attempted lewd acts and (2) battery, respectively. In addition, similarly to how the Burton jury was instructed it was to determine what crime " 'if any' " was committed, Mendoza's jury was instructed it was "to determine whether the defendant is guilty or not guilty of the crime[s] charged or of any lesser crime[s]." (Burton, supra, 29 Cal.App.5th at p. 925.)
The jury here would understand it could infer a consciousness of some wrongdoing from Mendoza's false statements to A., not necessarily consciousness of the two specific "charged" offenses. Moreover, as Burton explains, CALCRIM No. 362 "is designed to benefit the defense" by "limit[ing] the reach of any adverse inference both by telling the jury that it decides the 'meaning and importance' of the evidence and by telling the jury the making of a willfully false statement 'cannot prove guilt by itself.' " (Burton, supra, 29 Cal.App.5th at p. 925, italics omitted.) The instruction therefore properly "left it for the jury to determine whether defendant's [pretrial statements were] false or deliberately misleading, and if so, what weight should be given to that evidence." (Ibid.; see People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1156 [holding the " 'aware of his guilt' " language in a related flight instruction did not impermissibly presume the existence of guilt for the charged offense or lower the prosecution's burden of proof because jury was allowed to assign weight, if any, to the defendant's flight from crime scene].)
Next, we address Mendoza's third reason for holding CALCRIM No. 362 was erroneously given. He contends the jury would have understood the term "false statements," as used in CALCRIM No. 362, to refer to the statements he made to police "throughout [his] interview," as he claims the prosecutor urged it to do. He also contends his statements to police were consistent with his trial theory. He ultimately argues the instruction "highlighted the possibility" his statements to police were false, which in turn allowed the jury to infer his entire trial theory was false since it was based on those statements. As unclear as this argument is, Mendoza has failed to demonstrate how the jury was liable to draw an impermissible inference.
Mendoza is correct the instruction highlighted the possibility he lied to police. However, nothing in the instruction required the jury to presume he had lied to police. The instruction plainly provided the jury first had to decide if Mendoza intentionally made a false or misleading statement, and only then determine the meaning and importance of that falsehood with respect to any consciousness of guilt. Thus, even if the jury determined, as it was entitled to do, that Mendoza had been untruthful or misleading throughout his interview, it then had to make a separate determination as to the effect, if any, of those false or misleading statements. The instruction surely allowed the jury to determine Mendoza had been untruthful to police throughout his interview, yet determine his dishonesty does not affect the believability of his defense.
The CALCRIM No. 362 instruction was proper. If Mendoza wished for an instruction to clarify any points, it was his obligation to request one, and he did not do so. (See Burton, supra, 29 Cal.App.5th at p. 925.)
No prejudice
Even if CALCRIM No. 362 were given in error, Mendoza was not prejudiced. Mendoza states the proposed error should be reviewed under the harmless beyond a reasonable doubt standard articulated in Chapman v. California (1967) 386 U.S. 18 because the claims of error implicate Mendoza's federal constitutional rights. However, instructional error is generally reviewed under the standard of People v. Watson (1956) 46 Cal.2d 818 (Watson). (See People v. Breverman (1998) 19 Cal.4th 142, 178 (Breverman).) Under the Watson standard, reversal for instructional error must be based on a reasonable probability, and not just a theoretical possibility, that it affected the trial's outcome. (People v. Blakeley (2000) 23 Cal.4th 82, 94.)
Under the Chapman standard, any error was not prejudicial. Aside from the cautionary language built into CALCRIM No. 362, Doe's testimony on the crimes was complete and detailed. Indeed, Mendoza largely corroborated Doe's account of the crimes. He admitted her took her behind his house, pulled down her pants and underwear, leaned his head in in an attempt to touch her, pulled her pants back up, gave her $10, told her not to tell anyone, and walked her back across the street. The only fact he denied was that he touched his tongue to her vagina. However, Doe's testimony on that fact was explicit. She described his tongue as "moving" and "wet" with lots of saliva, and said the touching lasted 10 to 15 seconds. She also described how she attempted to wipe herself with her underwear as she pulled her pants back up.
In addition to our view CALCRIM No. 362 benefitted Mendoza by limiting the reach of any adverse inference, we do not see how the strength of the evidence against Mendoza would have been diminished in any way had CALCRIM No. 362 not been given. Thus, under the Chapman standard of review, any error was harmless beyond a reasonable doubt. And if any alleged error was harmless beyond a reasonable doubt, there is no reasonable probability under the Watson standard the verdict would have been different in the absence of the alleged error.
II. CALCRIM No. 371
The jury was also instructed with CALCRIM No. 371 as follows: "If the defendant tried to hide evidence or discourage someone from testifying against him, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself."
Mendoza argues three reasons for holding this instruction was erroneously given. First, he argues there was no evidence he hid evidence or discouraged Doe from testifying, and thus a factual predicate for the instruction was lacking. Second, he argues the instruction permitted the jury to draw the irrational inference he was aware of his guilt of oral copulation, as opposed to aware of his guilt of a lesser crime. Third, he contends the instruction unfairly singled him out as a person who hid evidence or discouraged Doe from testifying, which suggested to the jury the defense—or even Mendoza himself—was more likely than the prosecution to employ dishonest tactics. We reject all of his contentions.
Again, the People argue Mendoza's failure to object forfeited any challenge to this instruction and, regardless, the instruction was proper. We need not address forfeiture because, as we will demonstrate, the instruction was proper.
We address Mendoza's first reason, that there was no evidence he hid evidence or discouraged Doe from testifying. His argument hinges in part on the definition of "evidence." He posits that "[a]ccording to [the] ordinary meaning of words, the term 'hide evidence' means to hide physical evidence of a crime." Operating under this limited definition, he argues he did not hide any physical evidence in this case and thus the factual predicate for the instruction was missing. However, this narrow definition of "evidence" is incorrect. CALCRIM No. 222, which the jury received, defines "evidence" as "the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence."
Mendoza claims he did not discourage Doe from testifying against him by giving her a $10 bill because, at that point, "trial proceedings would not have been on [his] mind, and even if they were, he could not have reasonably thought that a $10 bill could buy Doe's silence." Our Supreme Court has held CALJIC No. 2.04, which addresses efforts by a defendant to fabricate evidence and is one of the predicates to CALCRIM No. 371, "does not require judicial proceedings to actually be in progress when the attempt to procure false testimony or to fabricate evidence is made." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1139, abrogation on other grounds recognized by People v. Leon (2020) 8 Cal.4th 1060.) Rather, it is sufficient that the jury could reasonably infer from the incident the defendant expected the person he attempted to discourage would be a witness in the event of a trial, "or that the defendant sought to fabricate evidence in anticipation of a trial." (Ibid.)
Here, ample evidence supported an inference that Mendoza expected Doe to be a witness against him in the event of a trial. In particular, there was strong evidence Mendoza knew that he had just committed a crime against Doe. He admitted in his police interview he told Doe he had done something bad, and admitted he gave her the money and told her not to tell anyone. It was also readily apparent, as there were no other witnesses to the crime, that the only way the crime would be discovered is if Doe told someone. Thus, it could be inferred Mendoza intended to secure Doe's silence so that he could evade criminal responsibility for what he had done.
Additionally, while Mendoza claims he could not have reasonably thought $10 could buy Doe's silence, plentiful evidence supports a contrary inference. Mendoza admitted he gave Doe the $10 at the same time he told her not to tell anyone, and from this the jury could infer the money was given for the specific purpose of attempting to buy her silence. The important fact is that he made the attempt to discourage Doe from reporting his crime—an act which he knew would likely have led to his arrest—and she later became the key witness against him in the case. It is of no import that Mendoza now claims he did not have much faith in the $10 being sufficient to accomplish his apparent goal of buying Doe's silence.
We next address Mendoza's second reason, that the instruction permitted the jury to draw the irrational inference he was aware of his guilt of oral copulation as opposed to aware of his guilt of a lesser crime. The instruction did no such thing. Unlike CALCRIM No. 362, this instruction does not refer to the defendant's awareness of guilt of any particular crime. Instead, CALCRIM No. 371 provides that certain acts of suppressing evidence "may show that [the defendant] was aware of his guilt." Even though this instruction only references a generalized awareness of guilt, Mendoza fails to explain how the instruction could permit a jury to infer guilt of a charged crime, as opposed to a lesser crime.
Finally, we turn to Mendoza's third reason, that the instruction unfairly singled him out as a person who suppressed evidence, which suggested to the jury that the defense or Mendoza himself was more likely than the prosecution to employ dishonest tactics. We acknowledge CALCRIM No. 371 focuses on only the defendant's conduct. However, this is insufficient to say Mendoza was singled out. We have read all of the instructions given, and conclude none of the instructions, considered either individually or in conjunction with others, could be interpreted as allowing the jury to conclude the defense or Mendoza himself was inherently more dishonest than the prosecution.
For example, the jury was instructed with CALCRIM No. 226 on "Witnesses." That instruction states, "You alone must judge the credibility or believability of the witnesses." Also, "You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have." The instruction also contains a nonexclusive list of factors the jury may consider in evaluating the truth or accuracy of a witness's testimony. Among these factors are whether the witness made a statement in the past that is inconsistent with his or her testimony, and whether "the witness engaged in conduct that reflects on his or her believability." Additionally, the instruction informs the jury it should consider not believing anything that a witness says if the witness "deliberately lied about something significant in [the] case." Thus, Mendoza's jury was properly instructed on how to fairly judge the credibility of each witness and how to proceed in the event they determined one or more witnesses were dishonest. Nothing in the instructions suggested to the jury it could consider the defense to be inherently dishonest in comparison to the prosecution, and no unfairness inured to Mendoza simply because CALCRIM No. 371 only referenced the defendant.
No prejudice
Mendoza again posits any error should be reviewed for prejudice under the Chapman standard because Mendoza's federal constitutional rights are implicated. However, as we have previously explained, instructional error is generally reviewed under the standard articulated in Watson, supra, 46 Cal.2d 818. (See Breverman, supra, 19 Cal.4th at p. 178.) Under either standard, any alleged error was harmless.
Like CALCRIM No. 362, CALCRIM No. 371 could be viewed as benefitting Mendoza as it made clear to the jury that any effort to hide evidence or discourage a witness from testifying was not, by itself, sufficient to establish his guilt. (See People v. Johnson (1992) 3 Cal.4th 1183, 1235 [addressing CALJIC No. 2.06, predecessor to CALCRIM No. 371].) Additionally, as we have discussed, Doe's account of the crimes was complete, detailed, and largely corroborated by Mendoza. We find any alleged error in giving CALCRIM No. 371 was harmless beyond a reasonable doubt under Chapman, and therefore necessarily find under Watson there is no reasonable probability the verdict would have been different in the absence of any error.
III. Abstract of judgment
Mendoza contends, and the People agree, that the abstract of judgment for Mendoza's determinate term contains two errors that need correcting. We agree. First, in section 1 of that abstract, it is stated Mendoza was convicted in count 1 of violating section "288(a)>201." This section must be corrected to reflect a violation of section "288(a)" only. Second, also in section 1, it is indicated Mendoza was convicted by plea of the section 288, subdivision (a) offense. This error must be corrected to reflect Mendoza was convicted by a jury of this offense.
DISPOSITION
The judgment is affirmed. The clerk of the court is directed to amend section 1 of the abstract of judgment to reflect that Mendoza was convicted by a jury of violating section 288(a). The clerk shall forward certified copies of the amended abstract of judgment to all appropriate parties.
SNAUFFER, J. WE CONCUR: MEEHAN, Acting P.J. DE SANTOS, J.