Opinion
A150243
01-18-2018
THE PEOPLE, Plaintiff and Respondent, v. MELFIDO OTTO VALDEZ-OROXCO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC081493)
Defendant Melfido Otto Valdez-Oroxco appeals a judgment convicting him of, among other things, sexual penetration with a child under 10 years of age (Pen. Code, § 288.7, subd. (b)) and sentencing him to 30 years to life in prison. He contends the trial court erred by instructing the jury that "penetration of the labia majora constitutes penetration of a genital opening" and by failing to instruct the jury on the crime of attempted sexual penetration as a lesser included offense. He also contends he was denied his right to effective assistance of counsel when his attorney failed to object to closing argument by the prosecutor that he contends weakened the burden of proof beyond a reasonable doubt. We find no prejudicial error and shall affirm.
All statutory references are to the Penal Code unless otherwise noted.
Section 288.7, subdivision (b) provides in relevant part: "Any person 18 years of age or older who engages in . . . sexual penetration, as defined in Section 289, with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life." Section 289 defines "sexual penetration" in relevant part as "the act of causing the penetration, however slight, of the genital or anal opening of any person . . . for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object."
Factual and Procedural History
Defendant was charged with three counts of sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b)), one count of lewd and lascivious conduct upon a child under the age of 14 (§ 288, subd. (a)), and one count of attempted lewd and lascivious conduct upon a child under the age of 14 (§§ 288, subd. (a), 664).
The following evidence was presented at trial:
In May 2013, the six-year-old victim lived with her parents and younger sister in a two-bedroom house. Her family slept in one bedroom and shared the house with several other people. Defendant lived in a shed in the backyard, but had access to the house to use the bathroom.
The victim turned seven in July 2013.
Sometime in November 2013, the victim's mother walked into her bedroom and saw defendant lying on the victim's bed. The victim was lying next to the bed on the floor, and defendant's hand was extended downward and on top of the victim. As soon as the mother opened the door, defendant pulled up his hand and pretended to use his cell phone. When the mother asked the victim if anything had happened, the victim started crying, said she was afraid and that nothing had happened. Around the same time, the victim twice complained of pain near her vaginal area when her mother tried to bathe her. When the mother asked the victim for the source of the pain, the victim started trembling and crying and said she did not know.
In late January, defendant moved out of the shed, but he remained friendly with the family and sometimes would visit. On February 14, 2014, defendant stopped by the victim's home and had dinner with the family. After dinner, the mother left the home to run an errand. When she returned, she saw defendant and the victim lying in bed together. The victim was completely covered with a blanket. Defendant was also covered by the blanket, except for his head. Defendant and the victim were lying in opposite directions, and defendant's hand appeared to be on the victim's "private part." As soon as the mother entered the room, defendant removed his hand from under the blanket and pretended to use his cell phone. Defendant spent the night at the home, and the next morning, after he left, mother asked the victim if anything had happened the night before. The victim started crying and said nothing had happened. Mother told her that she did not want anyone causing her harm and if she did not tell the truth mother "would find other parents for her and she would go with other people because [she] didn't want her lying." In response, the victim hugged her mother and told her that defendant had been touching her breasts, buttocks, and vagina.
The next day, mother reported the abuse to the police and participated in a pretext call to defendant. At first, defendant said nothing happened with the victim, but then admitted he "would touch her legs, her breasts." When mother asked defendant if he touched the victim's vagina, he said, "I touched her, but only on top of her clothes." A recording of the call was played for the jury.
During a police interview after he was arrested, defendant admitted to touching the victim's "parts" several times in her bedroom but claimed to have done so only over her clothes. After repeated questioning, defendant admitted touching the victim under her clothes. He said he twice touched her vagina, "skin-to-skin" but insisted he had not digitally penetrated the victim's vagina. Defendant also admitted touching the victim's "breasts/chest three times, skin-to-skin." The videotaped interview was played for the jury.
In an interview, the victim related that defendant had "touched [her] where . . . [her mom said] no one should touch [her]." She described several incidents in which defendant had molested her. One time, the victim was in bed sleeping when defendant started touching her. Defendant "stuck his hand . . . underneath [her clothes]" and "started touching [her]." He touched her on her "skin" in the "middle" of her "bottom." She could feel his nails "in [her] bottom." Defendant "pulled his hand out" when her mom came in and "put his hand up like he was using his telephone." On another occasion, the victim was lying down while her mother was in the kitchen when defendant "got in bed and started touching [her]." He touched her breast over her clothes. Another time, defendant "grabbed [her] hand" wanting her to touch him "down [t]here" where he "go[es] to the bathroom. The victim pulled away and did not touch "it." When her mom came in, defendant again pretended to use his cell phone. When asked how many times defendant had touched her "inside . . . of [the] part where [she went] pee," she said, "Many times." The videotaped interview was played for the jury.
The victim told the interviewer and confirmed at trial that she used "bottom" when referring to where she "went poop" and "pee."
The victim was eight years old when she testified at defendant's trial. She testified that defendant molested her "[l]ike, 50, 40 or 30 [times]." He touched her on her "bottom part," "[r]ight where [her] mom told [her] to not — to — where people are not supposed to touch [her]." She felt defendant's fingers "[go] inside a tiny bit." When defendant touched her with his fingers, he would "touch the middle part [] between the skin." The victim recalled going out for dinner on February 14, 2014, with her parents and defendant and remembered defendant touching her that night. He "got his hand and went in [her] clothes." He touched her "[i]n [her] bottom" and "put his fingers in a little bit." The victim testified that her father had threatened her with a belt if she did not tell him what defendant had done to her. He said he would not hit her if she told the truth. Her mother also threatened to give her to other parents if she did not tell the truth. This frightened her.
On June 17, 2015, a jury found defendant guilty on all counts. Thereafter, defendant was sentenced to consecutive terms of 15 years to life in prison on the first two counts of sexual penetration, with concurrent sentences on the remaining counts. Defendant timely appealed.
Discussion
1. The jury was properly instructed on the elements of sexual penetration under section 288 .7.
The jury was instructed pursuant to CALCRIM No. 1128 that to find defendant guilty of sexual penetration with a child 10 years of age or younger, it must find that "1. The defendant engaged in an act of sexual penetration with [victim]; [¶] 2. When the defendant did so, [victim] was 10 years of age or younger; [¶] 3. At the time of the act, the defendant was at least 18 years old. [¶] 4. The defendant committed the act with the intent of arousing, appealing, or gratifying the lust, passions or sexual desires of himself or the child." The jury was further instructed that "sexual penetration means penetration, however slight, of the genital or anal opening of the other person." To the standard instruction, the court added: "Penetration of the labia majora constitutes penetration of a genital opening, penetration of the vagina is not required."
Defendant contends the court erred by modifying the pattern instruction, violating his right to have the jury determine every element of the offense. He asserts that "by telling the jury that penetration of the labia majora constituted 'penetration of a genital opening' the judge took from the jury its right to determine that the penetration specified by law had or had not occurred." Defendant suggests that "[t]his is significant because the jury could easily have concluded that by moving his hand up and down the vulva, appellant had not really 'penetrated' the sexual opening because the direction of his fingers was not inward, and not similar to the familiar concept of 'penetration' involved in sexual intercourse." We disagree.
The trial court's instruction was a correct statement of the law. (People v. Andrade (2000) 85 Cal.App.4th 579, 585 ["A court is required to instruct the jury on the points of law applicable to the case, and no particular form is required as long as the instructions are complete and correctly state the law."].) In People v. Karsai (1982) 131 Cal.App.3d 224, 232, disapproved on a different ground in People v. Jones (1988) 46 Cal.3d 585, 600, footnote 8, the court held that "[p]enetration of the external genital organs is sufficient to constitute sexual penetration and to complete the crime of rape even if the rapist does not thereafter succeed in penetrating into the vagina." In People v. Quintana (2001) 89 Cal.App.4th 1362, 1366, the court held that the same "degree of penetration" was applicable to the crime of sexual penetration. The court noted that the term " 'genital opening' is not synonymous with a 'vaginal' opening . . . . The vagina is only one part of the female genitalia, which also include inter alia the labia majora, labia minora, and the clitoris. [Citations.] Thus, 'genital' opening does not necessarily mean 'vaginal' opening." (Id. at p. 1367.) Defendant offers no authority for his suggestion that penetration "means an actual insertion of a finger or other object, the same way and in the same direction as a penis when penetrating a vagina."
Contrary to defendant's argument, the instruction did not remove an element from the jury's consideration. The court did not instruct the jury that defendant had penetrated the victim's genital opening. It merely provided further definition of the meaning of penetration. An instruction that correctly clarifies or explains the terms of a standard instruction involves no error and is not likely to mislead the jury.
2. Any error regarding the failure to instruct on the crime of attempted sexual penetration was harmless.
A trial court has a sua sponte obligation to "instruct the jury on lesser included offenses 'when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.' " (People v. Barton (1995) 12 Cal.4th 186, 194-195.) "[T]he failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility." (People v. Breverman (1998) 19 Cal.4th 142, 165.) "As such, we apply the Watson standard and consider whether it is reasonably likely defendant would have enjoyed a more favorable outcome in the absence of error." (People v. Ngo (2014) 225 Cal.App.4th 126, 155-156, citing People v. Watson (1956) 46 Cal.2d 818, 836.)
Here, the jury was instructed that "The lesser included offense to counts 1, 2, and 3 [sexual penetration] is committing a lewd or lascivious act on a child under the age of 14 years in violation of Penal Code section 288(a). [¶] To prove that the defendant is guilty of this crime, People must prove that: [¶] 1. The defendant willfully touched any part of a child's body either on the bare skin or through the clothing; [¶] 2. The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child; [¶] AND [¶] 3. The child was under the age of 14 years at the time of the act."
Defendant argues that the court erred by failing to also instruct sua sponte on attempted sexual penetration as a lesser included offense. Whether or not the additional instruction was required, its omission was clearly harmless.
At trial, defendant argued that any touching was incidental and not committed with the required intent. In finding defendant guilty of the charged offense the jury necessarily found that he touched the victim with the requisite sexual intent. If, as defendant hypothesizes, the jury believed that defendant had attempted penetration but was not convinced that penetration occurred, the jury would have convicted defendant of a violation of section 288 as instructed. Having rejected that option and convicted defendant of the greater offense of sexual penetration, it necessarily follows that the jury believed the offense was more than an attempt. There is no reasonable likelihood that the jury would have convicted defendant of attempted sexual penetration had that instruction also been given.
Defense counsel argued, "so we know they were all sleeping together. They are all in close quarters. We know touching occurred. Touching had to have occurred. Did [appellant] touch her? Yes. He said he touched her. But what did he say? He touched her on the outside of the clothes. [¶] Did he touch her breasts? He probably did. Did he touch her on her buttocks? Probably did. On the outside of the clothes? Probably did. With sexual intent? No. [Defendant] never said that. He never opined that."
3. Defendant received effective assistance of counsel.
Defendant contends he received ineffective assistance of counsel based on his attorney's failure to object to the prosecutor's alleged misstatement of the burden of proof in closing argument. (People v. Marshall (1996) 13 Cal.4th 799, 831 ["[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements."].)
Here, the prosecutor argued: "So, ladies and gentlemen, the burden of proof, again, is that it must convince you beyond a reasonable doubt. [¶] I know that's something that we probably hear in popular culture. But you're sitting here now. This is the standard that the district attorney's office has to prove to you, these counts, beyond a reasonable doubt. [¶] So it's proof that leaves you with an abiding conviction that the charge is true. And it's not possible or imaginary doubt, not a conflict in the evidence, and not a denial by the defendant. When we're talking about what is reasonable doubt — because reasonable doubt is not an imaginary doubt, possible or imaginary doubt. Because everything in life — everything in life you could imagine another scenario. All right? But it has to be based on reason and evidence. [¶] And it's not a conflict in the evidence, because just as the defendant denies certain things, right, that alone is not reasonable doubt. Okay? You have to for yourself determine what's reasonable and what's unreasonable. [¶] So the question in this case is, really, do you believe [the victim]? Were her disclosures reasonable when looking at the entire case? [¶] And after you look at that and address the evidence, it's proof simply that leaves you with an abiding conviction that the charge is true; that you believe the charge is true; that this requires a guilty verdict. All right? [¶] . . . [¶] And you have to follow the law. And you have to convict him on this evidence, because, ladies and gentlemen, it's all reasonable. And we know what he did. And it's unreasonable to believe that the defendant sits here today and he's innocent. It's just not supported."
As defendant asserts, "it is error for the prosecutor to suggest that a 'reasonable' account of the evidence satisfies the prosecutor's burden of proof." (People v. Centeno (2014) 60 Cal.4th 659, 672, italics omitted.) However, it is not improper for the prosecutor to ask the jury to " 'decide what is reasonable to believe versus unreasonable to believe' and to 'accept the reasonable and reject the unreasonable.' " (People v. Romero (2008) 44 Cal.4th 386, 416.) The prosecutor's argument quoted above arguably falls somewhere between Centeno and Romero. In view of the prosecutor's repeated statements that his burden was to prove guilt beyond a reasonable doubt, we can hardly fault defense counsel for failing to interrupt the prosecutor's argument with an objection that his remarks indicated otherwise. In all events, the failure to object was undoubtedly harmless. (Strickland v. Washington (1984) 466 U.S. 668, 687 [A defendant alleging ineffective assistance of counsel must meet a two-pronged test: (1) defendant must show counsel's performance was deficient and (2) defendant must show he was prejudiced by the deficient performance.].) The jury was properly instructed with the standard instruction on the burden of proof. Jurors are presumed to be intelligent and capable of understanding instructions and applying them to the facts of the case. (People v. Lewis (2001) 26 Cal.4th 334, 390.) Given the jury was properly instructed and the overwhelming evidence of defendant's guilt, it is not reasonably probable that a result more favorable to the defendant would have been reached had an objection been made and an admonition given. (Strickland v. Washington, supra, at p. 694 [Prejudice requires defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."].)
CALCRIM No. 220 as given in this case states: "The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."
Disposition
The judgment is affirmed.
/s/_________
Pollak, J. We concur: /s/_________
McGuiness, Acting P.J. /s/_________
Siggins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------