Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego Cout., No. SCD198032, Theodore M. Weathers, Judge.
McDONALD, J.
A jury convicted defendant Victor Tapia of 16 counts of lewd acts on a child under the age of 14 (Pen. Code, § 288, subd. (a)), and found the offenses involved substantial sexual conduct (§ 1203.066. subd. (a)(8)) and 14 of the counts involved acts against more than one victim. (§ 667.61, subds. (b), (c) & (e).) The court sentenced Tapia to a term of 30 years to life.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, Tapia contends (1) the evidence was insufficient to support the jury's verdict, (2) the court abused its discretion by admitting evidence of a postoffense sexual assault by Tapia against one of the victims, (3) the court erroneously instructed the jury as to the other crimes evidence, (4) the court abused its discretion by denying his new trial motion based on jury misconduct, (5) the sentence violates the prohibition against cruel and unusual punishment, and (6) the abstract of judgment is erroneous.
I
FACTS
A. Prosecution Evidence
The Charged Offenses
In September 2000 Tapia became romantically involved with Linda B., and nine months later, he moved into her home. Bianca, Linda's daughter, was then living in the home with them. A few months after Tapia moved in, they moved to a house in San Diego.
Shortly after Bianca entered the fourth grade, Tapia began touching Bianca in places she did not want to be touched. He touched her vagina, put his penis in her vagina and anus, and forced her to put her mouth on his penis. He did this repeatedly, almost every night, when she was in the fourth and fifth grades. Tapia's assaults on Bianca formed the basis of Tapia's convictions on counts 3 through 12.
Bianca did not want Tapia to touch her, and sometimes tried to resist, but he was too strong. She did not tell anyone about the molestations when she lived in San Diego because she was afraid no one would believe her. Tapia told her no one would believe her. In 2005, Bianca began living with her father and stepmother in Nebraska, and eventually told them about the assaults.
While Bianca was still living with Tapia and Linda, Bianca's friend Demi would frequently spend the night at Bianca's house. When Demi was visiting, Bianca saw Tapia having sex with Demi. On some occasions, he would have sex with both children at the same time.
Demi testified at trial and confirmed Tapia made her have sex with him when she stayed the night at Bianca's house. Tapia began touching her when she was in the fourth grade, and he continued during her fourth and fifth grades. The sexual acts included Tapia touching her with his hands, putting his penis and finger in her vagina, and making her put her mouth on his penis. On some occasions Bianca was present when Tapia molested Demi, and on other occasions Tapia told Bianca to go into another room while he had sex with Demi. Demi also saw Tapia having sex with Bianca. Tapia told Demi not to tell anyone, and Demi did not tell anyone about the abuse until after she moved from California. The conduct towards Demi formed the basis of Tapia's convictions on counts 13 through 18.
Demi moved from San Diego when she was in sixth grade. She began seventh grade in a new school in New Hampshire and later told a guidance counselor at the new school about the abuse. The guidance counselor testified Demi came into her office when Demi was in the eighth grade and stated she needed to talk to her. Demi had been cutting herself and making marks on her arms. She was shaking, scared, nervous and, when she began talking, Demi started crying. Demi told the guidance counselor that when she lived in San Diego she would visit her friend's house, where the friend's stepfather would frequently sexually abuse them and would make one watch as the other was being assaulted. She told the guidance counselor this happened between the fourth and sixth grades. The guidance counselor contacted the authorities in New Hampshire and reported the abuse.
The Uncharged Offense
Bianca and the family moved to Murrieta when she was in the sixth grade. She was living with Tapia and Linda in a house in Murrieta on June 5, 2004, when Linda left to go to a baby shower; Linda left Bianca at home. However, after Linda realized she had the wrong date for the shower, she returned home. When she walked into the house, she saw Tapia attempting to have sex with Bianca. Tapia was naked from the waist down and Bianca was bending down on the couch, and Tapia was attempting to penetrate Bianca with his penis. Linda heard Bianca say, "Oh stop. That hurts."
Linda began screaming and asking Tapia what he was doing. Tapia shook his head and said he did not know. Although Tapia pleaded with Linda not to call police, Linda took Bianca upstairs and telephoned police. Tapia immediately left the house and, when police arrived, he was gone.
Bianca testified that, on June 5, 2004, she was in the garage watching television when Tapia came in and asked her to have sex with him. She said no, but Tapia grabbed her by the arm and took her to the couch. He bent her over, and took her jeans off. He took his pants off and she saw he had an erection. He began to sodomize her when her mother interrupted Tapia. That was the last time Tapia molested her.
B. The Defense
The jury viewed a video of the interview between Bianca, then 11 years old, and a social worker that occurred several weeks after the June 5, 2004, assault. Bianca told the social worker that she was watching television in the garage when Tapia came in, grabbed her by the arm, took her to the couch, pulled her pants off, and put his "private" in her "butt." Bianca yelled at him to stop, and after about a minute, Linda came home and caught him. When the social worker asked whether "anything like this... happened to [you and Tapia] before that day," she replied "Um-umm." An officer who interviewed Bianca about the June 5 sodomy testified Bianca stated this was the first time anything of a sexual nature had occurred with Tapia.
Tapia testified he never touched either Bianca or Demi in San Diego and had no idea why they would invent the stories. The only time he guessed that he touched Bianca was in Murrieta when he was drunk, and he "lost [his] composure." He did not recall sodomizing Bianca but pleaded guilty to the June 5 offense to "stop the harm to the family." He left the house when Linda called police because he was confused and did not know what to do.
ANALYSIS
A. The Substantial Evidence Claim
Tapia argues the evidence is insufficient to support the jury convictions on counts 3 through 18.
Standard of Review
When reviewing a challenge to the sufficiency of the evidence, we consider the whole record most favorably to the judgment to determine whether substantial evidence supported it. (People v. Hill (1998) 17 Cal.4th 800, 848-849.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34), resolving all conflicts in the evidence and questions of credibility in favor of the verdict, and indulging every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) The testimony of even one witness constitutes substantial evidence, so long as that testimony is not inherently incredible. (People v. Provencio (1989) 210 Cal.App.3d 290, 306.) We cannot reject the testimony of a witness the trier of fact chose to believe, unless the testimony is physically impossible or its falsity is plainly apparent. (People v. Watts (1999) 76 Cal.App.4th 1250, 1259.)
Analysis
Tapia argues the testimonies of Bianca and Demi must be rejected as inherently incredible because their falsity is plainly apparent. He asserts that because Bianca in 2004 told the officer and the social worker there had been no prior molestations, the falsity of her contrary testimony at trial is plainly apparent. He asserts Demi's testimony is also inherently incredible because she delayed revealing the molestations until after Tapia had pleaded guilty in connection with the June 5, 2004, assault.
We conclude the evidence was not inherently incredible because there are logical explanations both for Bianca's earlier denials and for Demi's delayed disclosures. Because Tapia's conduct in 2004 was corroborative of Bianca's and Demi's descriptions of Tapia's sexual abusiveness, and Demi's descriptions to Swanson were independent of Bianca's descriptions but closely tracked them, we are not persuaded by Tapia's claim that their testimonies are inherently incredible.
For example, the officer interviewed Bianca on the day of the June 5, 2004, molestation, and the social worker interviewed her less than one month later. Bianca may well have been reluctant to reveal other molestations out of fear Tapia might still return to the home because she told the social worker that Tapia was still in e-mail contact with friends of the family. Demi may have been unwilling to reveal anything until Tapia's imprisonment (or her moving a long distance away from California) provided her with some security against potential retribution.
B. The Admission of Uncharged Crimes Evidence Claim
Tapia asserts the trial court abused its discretion by admitting evidence concerning the 2004 assault on Bianca.
Legal Standards
As a general rule, evidence of a person's character is inadmissible to prove conduct on a specific occasion. (Evid. Code, § 1101, subd. (a).) However, an exception to this rule is included in Evidence Code section 1108, subdivision (a), which provides that "[i]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." Evidence Code section 1108 allows admission, in a criminal action in which the defendant is accused of one of a list of sexual offenses, of evidence of the defendant's commission of another listed sexual offense that would otherwise be made inadmissible by Evidence Code section 1101, subdivision (a). The uncharged and charged offenses are considered sufficiently similar if they are both sexual offenses enumerated in Evidence Code section 1108. (People v. Frazier (2001) 89 Cal.App.4th 30, 41.) Accordingly, Tapia's 2004 sodomy offense may be admitted to prove he has a propensity to commit the charged offenses unless the court excludes the evidence as more prejudicial than probative under Evidence Code section 352. (Evid. Code, § 1108, subd. (a).)
As the Supreme Court stated in People v. Falsetta (1999) 21 Cal.4th 903, in balancing Evidence Code section 1108 evidence under Evidence Code section 352, "trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]" (Falsetta, at p. 917.)
On appeal, we review the admission of other acts or crimes evidence for an abuse of the trial court's discretion. (People v. Kipp (1998) 18 Cal.4th 349, 371.) The determination as to whether the probative value of the evidence is substantially outweighed by the possibility of undue consumption of time, unfair prejudice or misleading the jury is "entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.]" (People v. Fitch (1997) 55 Cal.App.4th 172, 183.) We will not find that a court abused its discretion in admitting such other acts evidence unless its ruling " 'falls outside the bounds of reason.' [Citation.]" (Kipp, at p. 371.)
Analysis
Tapia argues the court abused its discretion by admitting evidence of his 2004 offense because (1) it was too dissimilar to the charged crimes to support admission, (2) it was too inflammatory and therefore should have been excluded under People v. Harris (1998) 60 Cal.App.4th 727, (3) it occurred after the charged offenses, (4) it was cumulative, and (5) it likely caused confusion for the jury.
We conclude the 2004 offense was sufficiently similar to the charged offenses to support its admission into evidence. Tapia was charged with multiple violations of subdivision (a) of section 288, and the only distinction between those offenses and the 2004 uncharged crime is that the latter involved sufficient force that it violated subdivision (b) of section 288. It appears that an uncharged and a charged offense are considered sufficiently similar if they are both sexual offenses enumerated in Evidence Code section 1108. "The charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108." (People v. Frazier, supra, 89 Cal.App.4th at pp. 40-41.) Moreover, even if some additional degree of similarity were required, we cannot conclude the trial court abused its discretion by concluding the evidence was admissible: it involved one of the same victims; it occurred close in time to the charged offenses; it involved conduct (sodomy) similar to some of the assaults described by Bianca in the charged offenses; and the uncharged and charged assaults occurred when Tapia was at home with his victim and could accomplish the assault without detection by another adult.
Tapia next asserts the uncharged acts should have been excluded as being unduly prejudicial under People v. Harris, supra, 60 Cal.App.4th 727. Harris is distinguishable because the uncharged act here did not involve extreme violence or severe injuries as did the defendant's prior uncharged sexual misconduct in Harris. In Harris, the Court of Appeal held the trial court abused its discretion in admitting the defendant's uncharged act--which involved a home invasion and rape followed by a brutal sexual mutilation--because the charged acts involved the defendant kissing, fondling and sexually preying upon emotionally and physically vulnerable women, which the court described as crimes of a "significantly different nature and quality" from the uncharged act. (Id. at p. 738.) Moreover, the uncharged act in Harris occurred 23 years earlier than the charged acts. (Id. at pp. 732-734.) Unlike Harris, the uncharged act here was no more inflammatory than the charged acts, and the charged and uncharged acts all occurred within a relatively close period of time.
Tapia also asserts the uncharged act should have been excluded because it occurred after, rather than prior to, the charged offenses. This court has already considered and rejected the identical argument, explaining in People v. Medina (2003) 114 Cal.App.4th 897, 902-904:
"The plain language of Evidence Code section 1108 does not limit evidence of uncharged sexual offenses to those committed prior to the charged offense. On the contrary, the statute broadly states that evidence of the 'defendant's commission of another sexual offense,' is not made inadmissible by the prohibition on the introduction of character evidence contained in Evidence Code section 1101. (Evid. Code, § 1108, subd. (a), italics added.) This language strongly suggests that evidence of an uncharged sexual offense committed after the charged offense is within the scope of section 1108. [Citation.] [¶] In [People v. Falsetta, supra, 21 Cal.4th 903], the California Supreme Court noted that Evidence Code section 1108 permits 'the admission, in a sex offense case, of the defendant's other sex crimes for the purpose of showing a propensity to commit such crimes.' [Id. at p. 907.]... [¶]... [¶] We agree with the [People v. Shoemaker (1982) 135 Cal.App.3d 442] court that both prior and subsequent acts may constitute relevant evidence of a person's character. Thus, interpreting Evidence Code section 1108 to allow for the admission of sexual offenses that occur after the charged offense is consistent with the statute's purpose of allowing the admission of evidence showing 'a propensity to commit [sex] crimes.' [Quoting People v. Falsetta, supra, 21 Cal.4th at p. 907.]... [¶]... [¶]... What Medina fails to acknowledge is that section 1108 is not limited to evidence that establishes a predisposition on the part of the defendant to commit a sexual offense. Rather, it permits evidence of the defendant's commission of 'another sexual offense or offenses' to establish the defendant's propensity to commit sexual offenses. There is no requirement that the other offenses precede in time the charged offense."
We agree with Medina that section 1108 allows propensity evidence, and similar uncharged sexual offenses occurring after the charged offenses are as relevant to Tapia's propensity as are acts preceding the charged offenses.
Tapia finally asserts it was an abuse of discretion to admit the uncharged act because it was cumulative and likely caused confusion for the jury. Although both of these factors are proper considerations when the trial court considers whether to exclude evidence of uncharged acts under Evidence Code section 352 (People v. Harris, supra, 60 Cal.App.4th at p. 736), the court below weighed the considerations under section 352 and admitted the evidence. We cannot conclude the court's ruling was " 'outside the bounds of reason.' [Citation.]" (People v. Kipp, supra, 18 Cal.4th at p. 371.) Because Tapia directs us to no other evidence as to his propensity to sexually abuse young girls, we cannot conclude the evidence was cumulative on the issue for which it was offered. We also conclude the evidence did not confuse the issues presented to the jury, because the court's instruction directed the jury how this evidence was to be used in its deliberations. (People v. Mullens (2004) 119 Cal.App.4th 648, 661.) We conclude the trial court's decision to admit the evidence of the 2004 uncharged conduct was not an abuse of its discretion.
C. The Instruction on Uncharged Crimes Evidence Claim
Tapia asserts the instruction given by the trial court, informing the jury on the use of the uncharged crimes evidence, violated his right to due process. However, Tapia concedes People v. Reliford (2003) 29 Cal.4th 1007 rejected the same due process attack on an instruction containing substantively identical language to the instruction used in this case, and further acknowledges we are bound by that decision under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450. We agree this argument is controlled by Reliford, and therefore reject Tapia's claim that the instruction offended due process.
D. The Jury Misconduct Claim
Tapia next asserts the trial court erred when it denied his motion for new trial. Tapia's motion asserted a juror committed misconduct and Tapia was entitled to a new trial based on the misconduct.
Background
During voir dire, the court asked all prospective jurors whether they had been the victim of a crime, to which Juror No. 1 responded that her purse had been stolen and her car had been stolen on two separate occasions. When the court later asked if the prospective jurors (or anyone close to them) had been the victim of a sexual assault or child molestation, Juror No. 1 did not respond.
After the court read the verdicts and discharged the jury, several jurors remained to talk to the attorneys. The defense counsel departed and the prosecutor remained to speak to the jurors. In a declaration describing the posttrial meeting, which the prosecutor gave to defense counsel shortly thereafter, the prosecutor stated that she had a general discussion with the jurors and:
"[W]e finished our conversation and began to disperse. As the jurors left, Juror number 1 asked if she could speak to me in private. [¶] After we were alone, she said that she remembered that when she was a very young child, she has a vague memory of riding in a police car, and perhaps going to a police station. She said that she later asked her mom about it, and her mother (now deceased) told her that a baby-sitter had molested her, when she was very young. She said she had no memory of the molestation itself, just of the police car ride. The juror said that she had never told anyone, including her husband.
"She further said she did not mention any of this to the jury, and it had not influenced her decision in any way. She said she has known people unjustly accused, and so she was very guarded. She said she was the juror [who] requested a copy of the People's Opening Statement because she thought she heard me mention a SART nurse, and a physical examination. She wanted to see or hear about physical findings. She said she was eventually convinced after viewing all the evidence and discussing the case with the other jurors."
Based on this declaration, the defense initially sought an order disclosing confidential juror contact to allow the defense to subpoena Juror No. 1 to question her about potential jury misconduct. The court agreed to contact the juror to determine whether she would consent to disclosing her contact information or alternatively was willing voluntarily to appear. After the juror declined to appear and opposed release of her contact information, the court denied the defense motion.
Tapia does not on appeal assert the ruling on this initial motion was error.
However, the defense alternatively moved for a new trial based on alleged misconduct. The defense argued that Juror No. 1's failure to disclose the information was misconduct, and Tapia was entitled to a new trial. The prosecutor opposed the motion, noting there was no basis for concluding the nondisclosure represented an attempt to intentionally conceal relevant information, and there was affirmative evidence from the juror that she neither disclosed anything to any other juror nor was unable to fairly and impartially evaluate the evidence. The court denied the motion, concluding it was not an intentional concealment, it was not divulged to other jurors, there was no suggestion Juror No. 1 was biased against Tapia, and the evidence against the Tapia was strong.
Legal Framework
A defendant has the right to have the charges determined by a fair and impartial jury and, to partially effectuate that right, the voir dire process provides the court and attorneys the opportunity to obtain information from prospective jurors on which both peremptory and for cause challenges may be interposed. (People v. Blackwell (1987) 191 Cal.App.3d 925, 929.) As Blackwell explained:
"Prospective jurors are examined under oath and are obligated to respond truthfully to the voir dire examination, which provides the basis for either type of challenge. [Citation.] The prosecution, the defense and the trial court rely on the voir dire responses in making their respective decisions, and if potential jurors do not respond candidly the jury selection process is rendered meaningless. Falsehood, or deliberate concealment or nondisclosure of facts and attitudes deprives both sides of the right to select an unbiased jury and erodes the basic integrity of the jury trial process. [¶] Intentional concealment of relevant facts or the giving of false answers by a juror during the voir dire examination constitutes misconduct [citations], and the occurrence of such misconduct raises a rebuttable presumption of prejudice. [Citations.] Prejudicial jury misconduct constitutes grounds for a new trial." (Ibid.)
When evaluating whether to grant a new trial based on alleged juror misconduct, the court conducts a three part inquiry: (1) whether the evidence presented for consideration is admissible; (2) whether the admitted evidence establishes misconduct; and (3) if misconduct occurred, whether it was prejudicial. (People v. Duran, supra, 50 Cal.App.4th at pp. 112-113.)
The People argue we need not even reach this question because the only evidence proffered at the hearing was the prosecutor's affidavit, which was inadmissible hearsay. However, there is no suggestion the People raised this evidentiary objection below, permitting us to conclude it was waived. (People v. Hovarter (2008) 44 Cal.4th 983, 1008.) Additionally, it appears that hearsay reports of a juror's statements are admissible in connection with a motion for new trial based on alleged misconduct (see, e.g., People v. Duran (1996) 50 Cal.App.4th 103, 113-114), although the precise basis for admissibility is unclear.
Analysis
The court found Juror No. 1 had not committed misconduct during voir dire because she did not intentionally conceal material information and was not actually biased against Tapia. The Supreme Court has concluded there is a difference between intentional and inadvertent nondisclosures, explaining:
"When misconduct involves the concealment of material information that may call into question the impartiality of the juror, we consider the actual bias test of People v. Jackson (1985) 168 Cal.App.3d 700, 705..., adopted by this court in People v. McPeters (1992) 2 Cal.4th 1148, 1175.... 'Although intentional concealment of material information by a potential juror may constitute implied bias justifying his or her disqualification or removal [citations], mere inadvertent or unintentional failures to disclose are not accorded the same effect. "[T]he proper test to be applied to unintentional 'concealment' is whether the juror is sufficiently biased to constitute good cause for the court to find under Penal Code sections 1089 and [former] 1123 that he is unable to perform his duty." (People v. Jackson, [supra, ] 168 Cal.App.3d [at p. 706].) [¶] Whether a failure to disclose is intentional or unintentional and whether a juror is biased in this regard are matters within the discretion of the trial court. Except where bias is clearly apparent from the record, the trial judge is in the best position to assess the state of mind of a juror or potential juror on voir dire examination. [Citations.]' (People v. McPeters, supra, 2 Cal.4th at p. 1175.)" (People v. San Nicolas (2004) 34 Cal.4th 614, 644.)
Tapia, relying on People v. Blackwell, supra, 191 Cal.App.3d 925 and People v. Diaz (1984) 152 Cal.App.3d 926 (Diaz), argues that a juror's silence in the face of direct questions posed during voir dire questions is misconduct, even where the failure to disclose the information was inadvertent rather than intentional. In Blackwell, a wife was on trial for murdering her alcoholic husband who allegedly beat her, and the wife's defense claimed she suffered from battered wife syndrome. The juror responded "no" to questions asking whether anyone in her family suffered from alcoholism and whether she had ever experienced domestic violence. (Blackwell, at pp. 927-928.) On a new trial motion after the jury found the defendant guilty, the juror's declaration stated she had an abusive ex-husband who was an alcoholic, and further stated she felt the defendant should have handled the situation (as did the juror) by leaving, without resorting to violence. (Id. at pp. 927-928.) The Blackwell court found the juror provided false statements as to matters of which she was aware, and there was no reason to believe her false statements resulted from oversight or forgetfulness, which compelled the inference that her false answers were intentionally and deliberately false. Moreover, Blackwell noted the juror admitted she affirmatively drew on her past in weighing the defendant's guilt, and therefore the evidence supported rather than dispelled the presumption of prejudice. (Id. at pp. 928-931.)
Here, there was some evidence to support the trial court's discretionary determination (People v. San Nicolas, supra, 34 Cal.4th 614) that Juror No. 1's silence was not an intentional attempt to conceal information, thus distinguishing this matter from the conclusion reached by the Blackwell court, because she had no memory of being molested but instead had only a memory her mother told her about a babysitter's alleged conduct toward Juror No. 1. Moreover, there was affirmative evidence that Juror No. 1 never mentioned anything to the other jurors, and had not been influenced by her mother's comments, which (unlike Blackwell) provides evidence to support the trial court's discretionary assessment that Juror No. 1 was not actually biased. (San Nicolas, supra.)
The court's decision in Diaz involves facts more analogous to this case. In Diaz, the defendant was charged with assault with a deadly weapon, the jurors were asked on voir dire whether they had been a victim of a similar crime, and the juror in question remained silent. However, in the middle of trial, the juror told court personnel she had been the victim of an attempted rape, during which the assailant gashed her chin with a knife, after which she "hunted down" the assailant and stabbed him. (Diaz, supra, 152 Cal.App.3d at pp. 929-931.) When the court asked the juror why she had not disclosed this information, the juror stated that it had not occurred to her that the assault on her was similar to assault with a deadly weapon, and assured the court that her experience would not bias her in deciding the case. (Id. at p. 931.) After the jury convicted the defendant, the Diaz court concluded the trial court had erred in refusing to dismiss the juror and declare a mistrial. The Diaz court, after concluding the appropriate standard of review was independent review (id at pp. 933-934), held that retention of the juror was reversible error, reasoning that the "[c]oncealment under the instant circumstances, regardless whether intentional, constitutes misconduct" (id. at p. 936, italics added) and "the presumption of prejudice has not been rebutted by the People by evidence showing the nonexistence of prejudice, or by an examination of the entire record" (ibid.), particularly where the jury had elected her as "foreperson..., thus highlighting the reasonable probability the remaining jurors would be substantially influenced by her views." (Id. at p. 936.)
However, the parties do not cite any cases adopting Diaz's approach, and in both People v. Kelly (1986) 185 Cal.App.3d 118 and People v. Jackson, supra, 168 Cal.App.3d 700, the courts rejected Diaz's approach where the nondisclosure was unintentional and there was no evidence of actual bias. (See Kelly, at pp. 125-129 [rejecting Diaz and concluding the trial court did not abuse its discretion by denying new trial motion where incident was dissimilar, nondisclosure was not intentional, juror demonstrated her conscientiousness by coming forward with information, and juror did not reveal experience during deliberations so the other jurors were not influenced].) The Jackson court, rejecting Diaz's approach, explained:
"It is clear that where a juror intentionally lies on voir dire, such an act constitutes misconduct. [Citation.] Similarly, it is misconduct for a juror to read newspaper accounts of the trial [citation], contact an outside attorney for advice during deliberations [citation], or question the police for information about the case [citation]. But to find misconduct where "concealment" is unintentional and the result of misunderstanding or forgetfulness is clearly excessive. It is with good reason that the law places severe limitations on the ability to impeach a jury's verdict. To hold otherwise would be to declare 'open season' on jury verdicts not to a party's liking. A green light would be given for every unsuccessful litigant to root out after-the-fact evidence of any 'subconscious bias.' " (Jackson, supra, at pp. 704-705, italics added.)
Jackson concluded the proper test for unintentional nondisclosure is "whether the juror is sufficiently biased to constitute good cause for the court to find... he is unable to perform his duty," and applied the deferential abuse of discretion standard to the trial court's assessment of that issue. (Id. at p. 706.)
Thus, several cases have expressly rejected Diaz. Moreover, the Supreme Court in People v. San Nicolas, supra, 34 Cal.4th 614 (although not explicitly overruling Diaz) did expressly adopt Jackson's approach as to unintentional nondisclosures. (San Nicolas, at p. 644.) We conclude that, because Diaz apparently has not been followed by other cases and our Supreme Court has approved the contrary approach used in a case rejecting Diaz, "[w]hether a failure to disclose is intentional or unintentional and whether a juror is biased in this regard are matters within the discretion of the trial court," which will not be disturbed on appeal "[e]xcept where bias is clearly apparent from the record...." (San Nicolas, at p. 644.)
Applying those standards here, we cannot conclude the trial court abused its discretion by first concluding Juror No. 1's nondisclosure was unintentional. Because Juror No. 1 had no memory of being a victim of a molestation, her silence when asked if she had been the victim of a child molestation was understandable. Indeed, because there is no evidence of when her only memory (i.e. of her mother telling her about the alleged incident) actually surfaced, the evidence supports a finding of unintentional nondisclosure. Additionally, we cannot conclude the court abused its discretion when it found Juror No. 1 was not actually biased against Tapia. The evidence showed Juror No. 1 candidly and voluntarily disclosed her mother's statements to her, did not discuss any aspect of this to other jurors, and affirmatively declared she knew people who had been unjustly accused and was therefore very guarded and had assessed the evidence in a fair and impartial manner. (People v. Cochran (1998) 62 Cal.App.4th 826, 831 [where no evidence indicating to the contrary, juror's statement that he or she was able to judge the case fairly and impartially taken by court "at face value"].) We conclude the trial court did not abuse its discretion in denying Tapia's motion for a new trial.
E. The Cruel and Unusual Punishment Claim
The court sentenced Tapia to 14 terms of 15 years to life, one for each count on which the jury found Tapia guilty of a lewd act upon a child under the age of 14 (§ 288, subd. (a)), and found the offense involved substantial sexual conduct (§ 1203.066. subd. (a)(8)) and acts against more than one victim (§ 667.61, subds. (b), (c) & (e)), which is the legislatively prescribed sentence for each conviction under section 667.61, subdivision (b). (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1261-1263.) The court ordered the terms imposed on counts 3 and 13 run consecutively, and be consecutive to the term Tapia was serving for his prior conviction of the 2004 offense, and ordered the terms imposed on all other counts to run concurrently. Tapia argues this 30-year-to-life sentence imposed by the trial court violates the prohibition against cruel and unusual punishment contained in the federal and state constitutions.
Legal Framework
A prison sentence violates the prohibition against cruel or unusual punishment within the meaning of the federal and state constitutions if "it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted; Rummel v. Estelle (1980) 445 U.S. 263, 271-272 [federal constitution prohibits sentence that is "grossly disproportionate to the severity of the crime"].) In Lynch, the Supreme Court extracted from prior decisions four elements to be examined when analyzing a claim of disproportionate sentencing. (Lynch, at pp. 425-427.) The first two elements of the analysis focus on the nature of the offense and the offender "with particular regard to the degree of danger both present to society." (Id. at p. 425.) When examining the nature of the offense a court considers not only the crime as defined by the Legislature but also " 'the facts of the crime in question'..., including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts." (People v. Dillon (1983) 34 Cal.3d 441, 479.) When examining the nature of the offender, a court considers such factors as the defendant's "age, prior criminality, personal characteristics, and state of mind." (Ibid.) The third element (the intra-jurisdictional comparison) involves comparing the challenged sentence with sentences in California for more serious crimes. (Id. at p. 487 & fn. 38.) The final consideration (the inter-jurisdictional comparison) examines the sentence imposed by other jurisdictions for similar offenses. (Lynch, at p. 427.) A substantively similar approach is employed when examining a claim of cruel and unusual punishment under the federal constitution. (See, e.g., Solem v. Helm (1983) 463 U.S. 277, 292-294.)
Analysis
Section 288, subdivision (a), has long provided that the terms of punishment for nonforcible lewd act offenses shall be three, six, or eight years. (People v. Hammer (2003) 30 Cal.4th 756, 765.) However, in 1994, the Legislature enacted section 667.61, which provides for indeterminate terms of either 15 years to life or 25 years to life for section 288, subdivision (a), offenses (as well as other specified sex offenses) if certain circumstances apply. (Stats. 1993-1994, 1st Ex. Sess. 1994, ch. 14, § 1.) Tapia does not dispute section 667.61, subdivision (b)'s elevated punishment for his section 288, subdivision (a), offenses was triggered here based on his "convict[ion] in the present case or cases of committing an offense specified in subdivision (c) against more than one victim" (§ 667.61, subd. (e)(5)), and he does not dispute that the court was required, under the statutory scheme then in effect, to impose a separate term for each victim. (Former § 667.61, subd. (g) ["If there are multiple victims during a single occasion, the term specified in subdivision (a) or (b) shall be imposed on the defendant once for each separate victim"].) Finally, he does not contend a trial court lacks discretion to order the terms served consecutively rather than concurrently. (People v. Rodriguez, supra, 130 Cal.App.4th at p. 1262.)
Tapia does not claim the mandatory term required by section 667.61 is unconstitutional on its face. (See People v. Alvarado (2001) 87 Cal.App.4th 178, 199-201 [upholding mandatory 15-year-to-life term under § 667.61].) Tapia's argument--the term imposed violates the constitutional proscription against cruel and unusual punishment--appears to be based almost exclusively on his claim that the punishment as applied to him is grossly disproportionate to his culpability.
Tapia argues the first Lynch factor alone--the nature of the offense and the offender--demonstrates the sentence constitutes cruel and unusual punishment. (See People v. Dillon, supra, 34 Cal.3d at pp. 482-488 [court relied on nature of offense and offender to conclude sentence was cruel and unusual punishment].) When examining the nature of the offense, we are cognizant not only of the crime in the abstract, but also of the facts of the crime in question, including "the way it was committed, the extent of the defendant's involvement, and the consequences of his acts." (Id. at p. 479.) In this case, Tapia did not commit a single impulsive act, but instead engaged in a long course of predatory behavior against defenseless victims and, in Bianca's case, a captive victim. Moreover, Tapia was sole perpetrator rather than tertiary participant. Finally, the consequences to victims were extensive: they were robbed of their childhood and forced to live in fear for years; Demi showed signs of significant psychological damages by engaging in self-injury; and the long-term damage to Tapia's victims cannot be ignored. As to the nature of the offender, we may consider such factors as his "age, prior criminality, personal characteristics, and state of mind." (Id. at p. 479.) Although Tapia had no criminal history apart from the molestations of Bianca and Demi, his age shows he was an adult rather than an immature youth unable to comprehend societal norms (see People v. Martinez (1999) 76 Cal.App.4th 489, 497), and his personal characteristics and state of mind shows he was a father who willfully jettisoned his mantle as protector to pursue his own self-gratification motives.
Demi's guidance counselor in New Hampshire testified Demi was somewhat withdrawn and the counselor became especially concerned when she noticed Demi was engaged in cutting herself.
The other Lynch factors do not convince us this matter involves one of those "rarest of cases [where] a court [may] declare... that the length of a sentence mandated by the Legislature is unconstitutionally excessive." (People v. Martinez, supra, 76 Cal.App.4th at p. 494.) The intra-jurisdictional comparison does not aid Tapia because, although California punishes Tapia's offenses similarly to the punishment for second degree murder, California imposes even harsher punishment for arguably less horrific crimes. (See People v. Crooks (1997) 55 Cal.App.4th 797, 807-808.) The inter-jurisdictional factor does not aid Tapia. First, he has made no effort to carry his burden of showing the punishment imposed by California is substantially more draconian than is prescribed by other jurisdictions for similar offenses. (Id. at p. 808.) Moreover, there apparently are other jurisdictions that have statutory schemes analogous to section 667.61. (See People v. Alvarado, supra, 87 Cal.App.4th at p. 200.) Finally, the fact severe sentences imposed both by California courts and by other jurisdictions for less serious crimes have withstood claims of cruel and unusual punishment (id. at p. 201) convinces us the intra-jurisdictional and inter-jurisdictional considerations do not support Tapia's claim. We conclude the sentence imposed by the trial court does not offend constitutional proscriptions against cruel and unusual punishment.
Tapia asserts that disproportionality is shown because his 30-year-to-life sentence is longer than even the 25-year-to-life sentence imposed for first degree murder. However, Tapia received a 30-year-to-life sentence based on the fact that he victimized two persons, and therefore the appropriate comparative analysis would be to compare his sentence to the 50-year-to-life sentence he would have been eligible to receive for the first degree murder of two victims.
F. The Erroneous Abstract of Judgment
The court sentenced Tapia to two six-year terms, one each for his convictions on counts 9 and 10, and ordered the terms imposed for counts 9 and 10 be concurrent with the 30-year-to-life term. However, the abstract of judgment reflected that, although the six-year term on count 10 was to be concurrent, the six-year term on count 9 was apparently designated a consecutive term. Tapia contends and the People agree this clerical error should be corrected to ensure the abstract of judgment reflects the sentence actually imposed by the court. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The abstract of judgment shall be amended to provide the term imposed on count 9 runs concurrently to the principal term and, as so amended, the judgment is affirmed.
WE CONCUR: HALLER, Acting P. J., IRION, J.