Opinion
G056609
11-26-2019
THE PEOPLE, Plaintiff and Respondent, v. SILVINO TRUJILLO, Defendant and Appellant.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CF1941) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed as modified and remanded as directed. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Silvino Trujillo was convicted of committing multiple sex offenses against two minors and sentenced to a prison term of 80 years to life. On appeal, Trujillo contends the prosecutor's closing argument constituted prosecutorial misconduct because it misrepresented to the jury the prosecution's burden of proof. Trujillo also contends his trial counsel's failure to object to the improper argument constituted ineffective assistance of counsel in violation of his federal constitutional rights. Trujillo also contends the trial court committed error by failing to provide jury instructions on lesser included offenses implicated by four counts requiring the victim to be under the age of 11 at the time of the crime. In addition to arguing any of the errors independently require reversal, Trujillo also contends in the alternative they resulted in cumulatively sufficient prejudice. Finally, Trujillo contends the trial court committed error in not applying preconviction conduct credits to his sentence.
We hold Trujillo forfeited his prosecutorial misconduct claim, has not demonstrated prejudice from ineffective assistance of counsel, that no error occurred regarding jury instructions for lesser included offenses, no cumulative prejudice occurred, but conduct credits should have been applied.
On remand, we direct the court to modify Trujillo's conduct credits. In all other respects, the judgment is affirmed.
I
FACTS AND PROCEDURAL HISTORY
In the first half of 2014, then 32-year-old Trujillo had been living in a one bedroom apartment on Poplar Street (Poplar address) with his wife and kids, his mother-in-law, and wife's two minor cousins, A. and S. A.'s 11th birthday was in January 2014 and S. was three years younger than A. Trujillo's mother-in-law, Miroslava (who went by Miros), took care of A. and S.—she was their aunt but the girls called her "Mom." Prior to the Poplar address, the family had lived together at an apartment on Cypress Avenue (Cypress address) with additional extended family members.
In May 2014, A. disclosed to Miros that Trujillo had been sexually abusing her. Sometime shortly thereafter, Miros also learned that Trujillo had sexually abused S. as well. Miros immediately advised her daughter, Marisa (Trujillo's wife), about Trujillo's abuse. Marisa kicked Trujillo out of the home but neither she nor Miros reported the matter to law enforcement.
About a month later, in June 2014, A. disclosed to her school lunch lady that Trujillo had sexually abused her. The Santa Ana Police Department and Orange County Social Services Agency became involved and Trujillo was arrested the following week. Upon his arrest, police investigators Mirandized Trujillo and interviewed him. Trujillo admitted to sexually abusing A. since she had been 10 years old—including sodomizing and having intercourse with her. Trujillo also admitted to sexually molesting S., but denied sexually penetrating S. in any way. A. and S. were interviewed by a social worker from the Child Abuse Service Team (CAST), where they separately gave statements about what Trujillo had done to them. A. Court Proceedings
Miranda v. Arizona (1966) 384 U.S. 436.
The Orange County District Attorney's Office prosecuted Trujillo based upon an amended information alleging 16 felony counts and special allegations for substantial sexual conduct with multiple children. Nine of the counts were based upon Trujillo's actions against A. and seven were based upon his actions against S. Of the nine counts regarding A., four of the counts depended upon a factual finding that the conduct had occurred when A. had been under the age of 11.
The nine counts alleged were: 1) sexual intercourse with a child 10 years old or younger, 2) sodomy with a child 10 years old or younger, 3) oral copulation with a child 10 years old or younger, 4) sexual penetration with a child 10 years old or younger, 5) lewd act (kissing) upon a child under the age of 14, 6) lewd act (touching of vagina) upon a child under the age of 14, 7) lewd act (touching of buttocks) upon a child under the age of 14, 8) lewd act (putting mouth on vagina) upon a child under the age of 14, and 9) lewd act (around Mother's Day 2014) upon a child under the age of 14. (Pen. Code, §§ 288, subd. (a), 288.7, subd. (b).) All further undesignated statutory references are to the Penal Code.
The seven counts alleged were: 1) sodomy with a child 10 years old or younger, 2) sexual intercourse with a child 10 years old or younger, 3) oral copulation with a child 10 years old or younger, 4) sexual penetration with a child 10 years old or younger, 5) lewd act (touching of vagina) upon a child under the age of 14, 6) lewd act (putting mouth on vagina) upon a child under the age of 14, and 7) lewd act (touching of buttocks) upon a child under the age of 14. (§§ 288, subd. (a), 288.7, subd. (b).)
At trial, the prosecutor's witnesses included A. and S., who gave testimonies about Trujillo's conduct. Their testimonies contained both consistencies and inconsistencies compared to their prior CAST interview statements made four years earlier. Audio recordings of A. and S.'s interviews were played for the jury, and accompanied by transcripts. An audio recording of Trujillo's interview statements was also played for the jury, also accompanied by a transcript.
After the close of evidence, the trial court provided instructions to the jury. Among others, the instructions specified the prosecutor's burden to prove Trujillo's guilt beyond a reasonable doubt, the factual findings necessary for the counts charged against Trujillo, as well as instructions regarding some lesser included offenses implicated for some of the counts.
During the rebuttal portion of his closing arguments, the prosecutor made the following arguments which are central to this appeal: "The majority of the evidence in this case, the bulk of the People's case is based on direct evidence from [S.], direct evidence from [A.] that 'he did these things to me.' [¶] There's no two reasonable interpretations as to that. It just comes down to: Do you . . . believe [A.]? Do you believe [S.]? Do you believe them at CAST? Do you believe them when they testified? [¶] So, in order for you to find him not guilty as to the counts I'll ask you to vote on, you have to find that [A.] lied about everything. [S.] lied about everything. Miros lied about everything. Marisa lies [to]you to [sic]. [Detective] Perez lies to you. [¶] I mean, really are we left to believe that someone that age, [S.], looking like that tiny little girl, lied about all these things that happened to her? [¶] . . . Are you left to believe that that ten or eleven year old [, i.e., A.] made all this up, all the things her Nino [, i.e., Trujillo] did to her?" (Italics added.) After some other comments, the prosecutor also argued: "So for you to find the defendant not guilty you have to also believe that everything the defendant is saying is also made up. [¶] . . . [¶] So for him to not be guilty everyone is lying and plotting to convict him of something he didn't do . . . ." (Italics added.) Trujillo's counsel did not object to the comments nor request any admonitions by the court.
During its deliberations, the jury made two requests for portions of the trial testimony transcript. The first request was regarding S.'s testimony about "kissing of private part" and "living in Poplar address." The second request was regarding A.'s testimony about "butt, touching, finger, mouth, tongue, turning 11, age." Portions of the trial testimony transcript were provided to the jury.
The jury convicted Trujillo of 14 counts of sexual misconduct and found true the special allegations charged. The jury acquitted Trujillo of two counts regarding S, including their lesser included offenses: sodomy with a child 10 years old or younger (count ten), sexual penetration with a child 10 years old or younger (count thirteen). (§§ 240, 242, 288.7, subds. (a),(b), 664, subd. (a).) The trial court sentenced Trujillo to a prison term of 80 years to life and rejected the parties' agreement to credit the sentence with 15 percent of the time Trujillo had spent in custody prior to sentencing, based upon conduct credits discussed in sections 4019 and 2933.1.
II
DISCUSSION
Trujillo makes five contentions on appeal. First, he contends his conviction should be reversed because the prosecutor committed prosecutorial misconduct by misrepresenting the applicable burden of proof to the jury during closing arguments. Second, Trujillo contends his trial counsel's failure to object to the improper argument constituted ineffective assistance of counsel, in violation of the Sixth Amendment of the United States Constitution. Third, Trujillo contends the trial court committed error by failing to provide jury instructions on lesser included crimes implicated by four counts requiring the victim to be under the age of 11 years old at the time of the crime. Fourth, Trujillo contends, in the alternative, that the errors caused cumulative prejudice requiring reversal. Finally, Trujillo contends he was incorrectly denied 225 days of presentencing conduct credits. A. Prosecutorial Misconduct
The government bears the burden of proving a criminal defendant's guilt beyond a reasonable doubt. (§ 1096; People v. Banks (1976) 67 Cal.App.3d 379, 384.) Other than affirmative defenses not relevant here, the defendant has no burden of proof. (See People v. Mower (2002) 28 Cal.4th 457, 478-479.) A claim of prosecutorial misconduct can be based upon a prosecutor's misstatement of the burden of proof in a criminal trial to a jury. (People v. Hill (1998) 17 Cal.4th 800, 831-832.) "When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (People v. Centeno (2014) 60 Cal.4th 659, 667 (Centeno).) "When, as here, the claim focuses on comments made by the prosecutor before the jury, a court must determine at the threshold how the remarks would, or could, have been understood by a reasonable juror. [Citations.] If the remarks would have been taken by a juror to state or imply nothing harmful, they obviously cannot be deemed objectionable." (People v. Benson (1990) 52 Cal.3d 754, 793.)
"To preserve a claim [of prosecutorial misconduct] for appeal under either state or federal law, a defendant must raise a contemporaneous objection at trial and seek a jury admonition." (People v. Gamache (2010) 48 Cal.4th 347, 371.) As stated above, Trujillo's counsel did not object to the prosecutor's argument at issue nor seek a jury admonition. Accordingly, Trujillo's claim of prosecutorial misconduct was forfeited at the trial court level. B. Ineffective Assistance of Counsel
A prosecutorial misconduct claim that has been forfeited can provide grounds for an argument of ineffective assistance of trial counsel in violation of the Sixth Amendment to our federal Constitution. (Centeno, supra, 60 Cal.4th at pp. 674-675.) For such an argument, the well-established test under Strickland v Washington (1984) 466 U.S. 668 (Strickland), requires a defendant to carry a burden to demonstrate two elements: 1) objectively deficient performance, and 2) resulting prejudice. (Centeno, at pp. 674-675.) "A [reviewing] court need not first determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed." (Strickland, at p. 670; In re Alvernaz (1992) 2 Cal.4th 924, 945.)
Under Strickland, prejudice is shown by demonstrating "a 'reasonable probability that, but for counsel's [deficient performance], the result of the proceeding would have been different.'" (Centeno, supra, 60 Cal.4th at p. 676, quoting Strickland, supra, 466 U.S. at p. 694.) "'When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for "[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade."'" (Centeno, at p. 676.)
Trujillo argues that prejudice occurred because "[t]he prosecutor's improper rebuttal arguments, and defense counsel's failure to object, . . . affected the way that the jury would be evaluating the conflicting evidence in the case." Given the context of the closing argument statements at issue, we are not persuaded prejudice occurred. First, the jury instructions given by the trial court—both orally before closing arguments and in written form during its deliberations—were correct. The instructions specifically included correct statements about the prosecutor's burden to prove guilt beyond a reasonable doubt as well as an explicit instruction that if the jury believed an attorney's comments conflicted with the judge's instructions about the law, the instructions were to be followed over the attorney's comments. Both counsel repeatedly referred to instructions during their closing arguments, with the prosecutor even referring to them as the "menus" that controlled the jury's decisions in the case.
Moreover, the "strength of the evidence" founded upon Trujillo's own admissions to police investigators also demonstrates a lack of prejudice. (Centeno, supra, 60 Cal.4th at p. 676; see People v. Gonzalez (2012) 210 Cal.App.4th 875, 884 [analyzing prejudice in the Miranda rights violation context: "Confessions, as a class, will almost always provide persuasive evidence of a defendant's guilt and as such, 'confessions often operate "as a kind of evidentiary bombshell, which shatters the defense,"'" quoting People v. Cahill (1993) 5 Cal.4th 478, 503].) During his Mirandized interview that was played to the jury, Trujillo admitted he had repeatedly raped and sodomized A. about two times a month for a year, beginning more than seven months before A. had turned 11 years old. Trujillo also admitted to rubbing his penis on S.'s vagina "six or seven times" when he believed she was eight or nine years old. Trujillo's admissions combined with the testimonial evidence of A. and S., who asserted conduct by Trujillo which went beyond what he had admitted to, provided a strong foundation to convict him of the sex offenses rendered by the jury. (See People v. Villatoro (2012) 54 Cal.4th 1152, 1159-1162 [evidence of a sex offense may be used to prove defendant's propensity to commit other sex offense charged in the same case].)
We are not persuaded that "conflicting evidence" cited by Trujillo compels a finding of prejudice. For example, Trujillo cites to an inconsistency between A.'s CAST interview statements and trial testimony regarding Trujillo digitally penetrating her. In her CAST interview, A. stated that Trujillo had inserted his fingers in her vagina whereas at trial, she denied this had occurred. We are not persuaded that this inconsistency—by itself or in any combination with others cited by Trujillo—demonstrates "a 'reasonable probability that, but for counsel's [purportedly deficient performance], the result of the proceeding would have been different.'" (Centeno, supra, 60 Cal.4th at p. 676.) Independent of whether Trujillo had inserted his fingers in A.'s vagina, A. did testify at trial that Trujillo had put his tongue inside her vagina during the time period before she had turned 11 years old. A. had also made this same claim during her CAST interview. As stated in the general allegation of the prosecution's information and on the jury's verdict form, Trujillo inserting his tongue in A.'s vagina was sufficient for the jury to convict him of sexual penetration against A. in violation of section 288.7, subdivision (b), (count four). (See § 289, subd. (k)(2) ["'Foreign object, substance, instrument, or device' shall include any part of the body, except a sexual organ"].) A conclusion that this was the ground for Trujillo's conviction for count four is supported by the jury's deliberation request for trial testimony transcripts regarding A.'s claims about "tongue." In other words, we are not persuaded that a reasonable probability of a different trial result is demonstrated by Trujillo's proffered conflicts in evidence. (Centeno, at p. 676.)
The fact that the jury acquitted Trujillo of two counts related to S. also does not persuade us to find prejudice. The acquittals are equally consistent with a conclusion that the jury properly understood the burden of proof and its role of determining witness credibility, pursuant to the correct jury instructions provided. In sum, we are not persuaded by Trujillo's argument that guilt was a close call. Trujillo's claim that his conviction should be reversed based upon the prosecutor's improper closing argument fails for lack of prejudice under Strickland. C. Lesser Included Offenses
We are also not persuaded by Trujillo's contention that the trial court committed error by failing to provide, sua sponte, jury instructions on lesser included crimes for the four counts requiring A. to have been under the age of 11 when the crimes were committed. A trial court must instruct on a lesser necessarily included offense only when there exists "'[s]ubstantial evidence' . . . '". . . from which a jury composed of reasonable [persons] could . . . conclude[]"' that the lesser offense, but not the greater, was committed." (People v. Sattiewhite (2014) 59 Cal.4th 446, 477.) In other words, "'"the existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense."'" (Ibid.)
Given Trujillo's admissions during his Mirandized interview, we are not persuaded that jury instructions for lesser included offenses were required. While it is true the trial evidence was not precise in terms of establishing when A. had moved to the Poplar address where Trujillo admitted to committing his crimes, Trujillo clearly did admit that, as of the time of his interview—June 2014—he had begun committing sex crimes against A. one-year prior, commencing with sodomy, when she had been 10 years old. Trujillo does not dispute that A. turned 11 years old in January 2014. Accordingly, it is clear that Trujillo admitted to committing intercourse and sodomy against A. about twice a month for about seven months before A.'s 11th birthday. This provided strong evidence there had been at least about 14 occasions of abuse committed against A., while she had been under the age of 11.
Only four acts were necessary to support the jury's conviction of the four counts at issue. At trial, A. testified that the abuse Trujillo admitted to had begun earlier, at the Cypress address, and continued at the Poplar address. Regarding oral copulation, Trujillo's interview statement went as far as to say he "probably" put his mouth on A.'s vagina once. Regarding sexual penetration, A. clearly testified Trujillo had both put his tongue inside her vagina and at both the Cypress and Poplar addresses.
In other words, the lack of precise timeline evidence, such as when A. and S. had moved from the Cypress to Poplar address, does not persuade us there was substantial evidence that Trujillo committed the at issue crimes after A. turned 11 years old but not before. Accordingly, we find no error in the trial court not providing jury instructions for lesser included offenses regarding the four at issue counts requiring A. to have been under the age of 11 at the time of the crimes. Moreover, even if error could be found, it would have been harmless based upon the evidence that was before the jury at trial. D. Cumulative Prejudice
Trujillo also contends that, "even assuming that the above errors, taken alone, were not sufficiently prejudicial as to warrant reversal, [the] errors, considered together, were prejudicial to [him] and deprived him of his constitutional rights to due process and to the effective assistance of counsel." Based upon our findings that, at most, only one error may have been shown by Trujillo (i.e., regarding the prosecutor's purportedly improper argument) but, in any case, it did not result in prejudice under Strickland, Trujillo's argument for reversal based upon cumulative prejudice necessarily fails. (See People v. Cooper (1991) 53 Cal.3d 771, 839 [rejecting cumulative prejudice claim where there was "little error to accumulate"].) E. Presentencing Conduct Credits
Finally, Trujillo contends his sentence should have been credited 225 days for presentence custody conduct. The trial court had ruled that such credits were not available because Trujillo's prison sentence was indeterminate and not determinate. Relevant here, section 4019, subdivision (a)(4), provides that "[w]hen a prisoner is confined in a county jail . . . following arrest and prior to the imposition of sentence for a felony conviction." Subdivision (b) of section 4019 provides: "[F]or each four-day period in which a prisoner is confined . . . , one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp." Section 2933.1, subdivisions (a) and (c), limit such credits to 15 percent for persons convicted of certain felony offenses, which Trujillo was convicted of in this case.
Trujillo cites to People v. Brewer (2011) 192 Cal.App.4th 457, 461-464 and People v. Philpot (2004) 122 Cal.App.4th 893, 907, to contend that "a defendant who receives an indeterminate life sentence is entitled to presentence conduct credits." The Attorney General's office agrees with Trujillo on the point, as the prosecution had at the trial court level. We are persuaded and find that Trujillo should have been granted a credit of 225 days for presentencing conduct credits.
III
DISPOSITION
This matter is remanded and the trial court is directed to correct Trujillo's custody credits, prepare an amended abstract of judgment reflecting a modification for conduct credits, and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The amended abstract of judgment should state 1,501 days of actual custody credits and an additional 225 days of presentence custody credits, totaling 1,726 days of credits. In all other respects, the judgment is affirmed.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.