Opinion
No. B200411
6-4-2008
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS VASQUEZ, Defendant and Appellant.
Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Patterson, Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appellant Jose Luis Vasquez appeals his conviction by jury of one count of continuous sexual abuse of a minor (Pen. Code, § 288.5, subd. (a), count 1), and four counts of committing a lewd act upon a child (§ 288, subd. (a), counts 2-5.) The victim in counts 1 through 3 was M.G. The victim in counts 4 and 5 was E. P. The jury found true allegations that defendant had multiple victims (§ 667.61, subd. (b)). As to counts 2 through 5, the victims were under the age of 14 and appellant had substantial sexual conduct with them. (§ 1203.066, subd. (a)(8).) The trial court sentenced appellant to a total term of 15 years to life in state prison, with 540 days of presentence custody credit consisting of 470 days of actual custody credits and 70 days of conduct credits.
All statutory references are to the Penal code unless otherwise stated.
Appellant seeks reversal of his conviction on the grounds that: (1) his confession should have been suppressed because it was the product of a false promise of leniency, and (2) the trial judge should have given a unanimity instruction concerning counts 4 and 5 (E.P.). We correct appellants presentence custody credits, which were miscalculated, and otherwise affirm.
FACTS
M.G. was born in 1992. Appellant rented a room from M.G.s aunt. M.G. met appellant in March 2004, when her baby brother was born. She was in fifth grade and appellant was 23 years old. When they met, appellant kissed her. In June of 2004, appellant became M.G.s "boyfriend." M.G. testified that she and appellant had sexual intercourse in his black car four times between June of 2004 and December of 2004, and about ten times between March 2005 and May 2006. M.G. specifically recalled having intercourse with appellant on the last day of fifth grade, and having intercourse with him the last time on May 8, 2006.
E.P. was born March 7, 1994. Appellant lived across the street from E.P. They met in March of 2006 just before her 12th birthday. A week later, just after her birthday, E.P. and appellant had sexual intercourse in his car. E.P. considered appellant to be her boyfriend. Between March 2006 and May 2006, E.P. and appellant had sexual intercourse in his car eight or ten times. E.P. specifically recalled having intercourse with appellant just after her 12th birthday and having intercourse with him the last time on May 11, 2006.
E.P.s sister told police that she saw E.P. get out of a red car on the evening of May 11, 2006, and E.P. had a small amount of blood in her crotch area. E.P.s sister did not know who was driving. E.P. testified that she walked home on May 11, 2006, and that a red car made a turn on the street as she arrived home. E.P.s mother or her sister called the police. Appellants roommate, who had a red car, was initially detained as a suspect. He denied ever giving E.P. a ride in his car or ever being alone with E.P.
When police interviewed E.P., she initially said that men in a van "got her" that night and had sex with her. She said this to protect appellant. Later, she said that she had sex with a boy from school. Finally, after E.P.s sister told her to tell the truth, E.P. told police that she had sex with appellant.
On May 12, 2006, police arrested appellant. In his car, they found a photo of appellant and M.G. embracing, and a letter from M.G. to appellant. Appellant waived his rights under Miranda v. Arizona (1996) 384 U.S. 436. The officers told appellant that E.P. had accused appellant of forcible rape.
Appellant initially said that E.P. was a neighbor who he had only seen walking her dog. An officer asked appellant whether he had forcible sex or consensual sex with E.P. The officer said that "boyfriend[s] and girlfriend[s] have sex, but its not rape." The officer told appellant that "it is very bad to force someone to have sex." "But it is . . . not bad when the other person wants to do it." Appellant continued to deny that he had sex with E.P. Appellant asked to see E.P., so that she could tell the truth that he was "not with her."
The officers told appellant that DNA samples had been taken from E.P. They asked for a sample of appellants saliva for comparison. Appellant then said, "Im gonna tell you the truth," but asked what would happen to him when he did. An officer said, "Well, it is better if you tell the truth, because . . . first of all, we want to know if it was rape. [¶] . . . [¶] . . . Thats very serious. [¶] . . . [¶] . . . Its against the law in Mexico . . . [¶] . . . and its against the law here in the United States, too. Okay. Things [] are very different if the person says . . . if she lets you . . . ."
Appellant then admitted that he had sex with E.P. the night before his arrest. He said he did not use force. He admitted that he had also had sex with M.G. and that he knew both girls ages.
Appellant said he first met M.G. when her baby brother was born (in March of 2004). He kissed M.G. M.G. told him she would turn 15 in 2006. He said that in 2004, he and M.G. went out as friends, and in March of 2005, they began to kiss and to have sexual contact. He said M.G. told him she was not a virgin and that she wanted to have sex with him. Appellant and M.G. first had sexual intercourse in March of 2005 at a park in the back of his car. From that time forward, appellant had sexual intercourse with M.G. about five or ten times. The last time he had sex with M.G. was in his car on May 8, 2006, on the Monday before he was arrested. Appellant said he ended his relationship with M.G. because he met E.P.
Appellant said that E.P. became his girlfriend in February of 2006, and in March of 2006 they first had sexual intercourse in his car. He said E.P. asked him to have sex with her. He said he explained to E.P. that he could not have sex with her because she was underage. To appellant, "underage" meant she was a virgin. He said E.P. told him that she was not a virgin, and then they had sexual intercourse. After the first time, appellant and E.P. had intercourse twice a week.
Appellant moved to suppress his statement on the ground that it was the involuntary product of police coercion because the officer threatened appellant that he would go to jail if he committed forcible rape, and promised appellant that if the sex was consensual nothing would happen to him. The trial court conducted an evidentiary hearing pursuant to Evidence Code section 402. The court heard the testimony of the examining officer and concluded that the statement was voluntary. "[T]here was no promise that nothing would happen. I dont think there was any promise that nothing would happen here. They made a distinction between rape and consent. I think all they said [was that] rape was more serious than consensual [sex], and I suppose that is probably true. It is more serious. So I find that there was no promise made and nothing improper about that."
DISCUSSION
Voluntariness of Confession
Appellant contends that his confession was not voluntary because it was derived from a false promise of leniency. We disagree.
Involuntary statements obtained by police may not be used against a defendant in a criminal prosecution. (People v. Holloway (2004) 33 Cal.4th 96, 114.) Voluntariness is determined by asking whether, under the totality of the circumstances, the defendants will was overcome. (Ibid.) The burden is on the prosecution to prove the voluntariness of a confession beyond a reasonable doubt. (People v. Belmontes (1988) 45 Cal.3d 744, 773.) We uphold the trial courts findings about the circumstances surrounding the confession if it is supported by substantial evidence; we review the trial courts finding of voluntariness de novo. (Holloway, at p. 114.)
A confession is involuntary and therefore inadmissible if it was elicited by a promise of benefit or leniency whether express or implied. (People v. Holloway, supra, 33 Cal.4th at p. 115.) An officers advice to an accused to ""tell the truth" or that "it would be better to tell the truth,"" does not render a subsequent confession involuntary unless the advice is accompanied by a threat or promise. (People v. Hill (1967) 66 Cal.2d 536, 549.) "When the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, we can perceive nothing improper in such police activity. On the other hand, if . . . the defendant is given to understand that he might reasonably expect . . . more lenient treatment . . . in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible." (Id. at p. 549.)
In People v. Holloway, supra, 33 Cal.4th 96, an officers suggestion that the defendant would benefit from a truthful, mitigated version of events, but might otherwise receive the death penalty, did not render a defendants statement involuntary. The defendant was questioned about the killing of two women in a townhouse and carport. An officer said that the killings may have been accidental, but that defendant would be found guilty if he did not say so. The defendant said, "Even if it was an accident, its still murder," and the officer responded, "No, not really." The officer said, "Were talking about a death penalty case here. [¶] . . . [¶] . . . The truth cannot hurt you, if its known. The longer you just sit there and not say anything . . . youre gone," but ". . . if you blacked out and you didnt realize what was happening, . . . [¶] . . . [¶] It makes a lot of difference." (Id. at p. 113.) Defendant then admitted that he had been at the townhouse and the carport and had heard one of the women screaming, but said he had been very drunk and did not remember what else happened. (Id. at pp. 107, 114.) "To the extent [the officers] remarks implied that giving an account involving blackout or accident might help defendant avoid the death penalty, he did no more than tell defendant the benefit that might "flow[] naturally from a truthful and honest course of conduct,"" (Id. at p. 116) because such circumstances can reduce the degree of homicide or serve as mitigating arguments in a penalty phase. (Ibid.) The fact the eventual verdict was death made no difference to the analysis.
Here, too, the officers suggestion that defendant might benefit from a truthful, mitigated version of events did not render his statement involuntary. The officers told appellant that it is better to tell the truth, that forcible rape is "very serious," against the law in Mexico, and against the law in the United States, and that "[t]hings [] are very different, . . . if she let you." Forcible rape is a serious crime. (§ 261, subd. (a)(2).) The officers remarks did not suggest that appellant could expect lenient treatment in exchange for his statement. (People v. Jimenez (1978) 21 Cal.3d 595, 611, overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 510, fn. 17.)
The cases cited by appellant are inapposite. (People v. Johnson (1969) 70 Cal.2d 469, People v. McClary (1977) 20 Cal.3d 218 (overruled on other grounds in People v. Cahill, supra, 5 Cal.4th at p. 510, fn. 17; People v. Cahill (1994) 22 Cal.App.4th 296 (Cahill II).) In Johnson, the defendant, whose age was under 21, did not affirmatively waive his rights and a detective told him his statements would not be admissible in court. (Johnson, at p. 472.) In McClary, the officers ignored the minor defendants requests for counsel and told her that she would be tried for murder if she did not change her statement. (McClary, at p. 224.) In Cahill II, the officer stated that if defendant had committed an unplanned killing during a burglary "it wouldnt fall into first degree murder." (Cahill II, at pp. 306-307.) In this case, appellant knowingly and intelligently waived his rights, and he was not told what penal consequences he could expect for having forcible or non-forcible sex with a minor.
Appellant argues that the officer encouraged appellants subjective belief that consensual intercourse with a child was legal if the child was not a virgin, based on the law of Chiapas, Mexico, his native state. Appellants subjective understanding of the law is irrelevant. As appellant concedes, ignorance of California law is no defense. (People v. Gory (1946) 28 Cal.2d 450, 453-454 [if a statute expressly prohibits the doing of an act, good motive or ignorance of the acts criminal character are no defense].) The officer did not materially misrepresent the law. Because no improper inducements were held out to appellant, his statement was voluntary and admissible.
We deny appellants request for judicial notice of the law of Chiapas, Mexico. The request was not made by separate motion and was not accompanied by a copy of the matter to be noticed. (Cal. Rule of Court, rule 8.252(a)(1).)
Appellant also argues that the officer deceived him because E.P. had not actually accused him of forcible rape. Deception renders a statement involuntary only if the deception was likely to result in an untrue statement. (People v. Arguello (1967) 65 Cal.2d 768, 775.) Deception is one factor to consider in the totality of the circumstances. (People v. Hogan (1982) 31 Cal.3d 815, 840, overruled on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 886.) The statement that E.P. had accused appellant of forcible rape was not likely to result in an untrue statement. Under the totality of the circumstances, the statement was voluntary.
Unanimity as to Particular Acts
Appellant next contends that the trial court erred in not giving a CALJIC 17.01 unanimity instruction on counts 4 and 5. (§ 288, subd. (a).) We agree, but conclude that the error was not prejudicial.
The state constitution guarantees a unanimous verdict on a specific charge. (Cal. Const., art. I, § 16.) If conviction on a single charge could be based on evidence of two or more discrete criminal acts, all jurors must agree that the defendant committed the same act. If the prosecution does not elect to rely upon a single criminal act, the trial court has a sua sponte duty to instruct the jury that it must unanimously agree beyond a reasonable doubt that the defendant committed the same specific act. (People v. Russo (2001) 25 Cal.4th 1124, 1132; CALCRIM 3500, formerly CALJIC 17.01.) If there is evidence of repeated, indistinguishable, identical acts of child molestation, and there is no reasonable likelihood of juror disagreement as to particular acts, a modified unanimity instruction may be given which allows a conviction if either (1) the jurors unanimously agree that the defendant committed the same "specific act," or (2) the jurors unanimously agree the defendant committed "all the acts" described by the victim. (People v. Jones (1990) 51 Cal.3d 294, 322; CALCRIM 3501, formerly CALJIC 4.71.5.) No form of unanimity instruction was given here.
A unanimity instruction was required because conviction on counts 4 and 5 could have been based on two or more discrete lewd acts, and the prosecutor did not make a clear election. In counts 4 and 5, appellant was charged with committing single acts of lewd conduct with E.P. in each of two time periods: March 2006 to early April 2006 (count 4), and April 2006 to May 2006 (count 5). E.P. testified to one specific act of intercourse that occurred in March 2006, just after her 12th birthday and one specific act of intercourse that occurred May 11, 2006, the night before appellant was arrested. The prosecutor argued that this testimony proved counts 4 and 5, but also argued that there were eight or ten acts of intercourse between those dates. "[E.P.] tells you about two distinct periods in time, but also tells you she had sex with him over that period for eight to ten times." Under these circumstances, the trial court should have instructed the jury that they could convict either (1) if they unanimously agreed that appellant committed the same specific act, or (2) if they unanimously agreed that appellant committed all the acts described by E.P. (People v. Jones, supra, 51 Cal.3d at p. 322.)
This case does not fall within the "continuous conduct" exception to the unanimity requirement, which applies only if (1) the statute contemplates a continuous course of conduct, such as continuous sexual abuse of a minor pursuant to section 288.5, subdivision (b) (People v. Adames (1997) 54 Cal.App.4th 198, 207), or (2) the criminal acts are so closely connected in time as to be part of the same criminal transaction, such as multiple acts of oral copulation that occurred within minutes (People v. Diedrich (1982) 31 Cal.3d 263, 281-282). Counts 4 and 5 charged appellant with violating a statute that does not contemplate continuous conduct. (§ 288, subd. (a).) E.P. described distinct acts of intercourse that were not "so closely connected in time that they formed part of one transaction." (Diedrich, at p. 282.)
The absence of a unanimity instruction was, nevertheless, harmless under any standard of review. (People v. Matute, (2002) 103 Cal.App.4th 1437, 1448-1449 [courts differ concerning standard of review regarding failure to give a unanimity instruction].) The error was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24), and it is not reasonably probable that a result more favorable to appellant would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)
In People v. Matute, supra, 103 Cal.App.4th 1437, failure to give a unanimity instruction did not require reversal. The defendant was convicted of 15 counts of raping his 15 year old daughter (§ 261, subd. (a)(2)) during a 15-month time period. The rapes had blurred together in the daughters mind, but she testified that she was raped about twice a week and that a week never passed without at least one rape. She recalled a few specific instances including a rape on her birthday, a rape one week after an abortion, a rape during which her father was particularly violent, and a rape on the morning of his arrest. (Id. at p. 1440-1441.) The defendant denied ever having intercourse with his daughter. (Id. at. p. 1442.) The jury found him guilty of all 15 counts. A unanimity instruction should have been given, but the error was not prejudicial under either the Chapman or Watson test. (Id. at p. 1449.) "[T]here [was] no reasonable possibility the jury failed to unanimously agree that appellant committed each specific act for which he was convicted." (Id. at p. 1450.)
In People v Smith (2005) 132 Cal.App.4th 1537, failure to give a specific acts unanimity instruction required reversal, where the acts were sufficiently different to give rise to jury disagreement. The defendant was charged with 10 counts of lewd conduct with a child. (§ 288, subd. (a).) The victim testified that on 5 to 10 occasions the defendant touched and sucked her chest in his bathroom, that on more than 10 occasions the defendant touched her vagina while she sat on his lap in his living room, and that on 20 occasions he orally copulated her in one of two bedrooms. She specifically recalled the last time that he molested her and an occasion in the bathroom when he left a red mark on her chest. (Smith, at p. 1542.) Her older brother testified that he was with her in the defendants home and never saw defendant touch his sister. (Ibid.) The jurors were instructed that they should convict only if they unanimously agreed that the defendant committed all the acts described by the victim. (Id. at p. 1543.) They were not given a specific acts unanimity instruction. (Id. at p. 1544.) It was evident from their mixed verdict that the jury did not unanimously agree defendant committed all the acts described by the victim. They convicted the defendant of one count, failed to reach a verdict as to another, and found defendant not guilty as to eight counts. In the circumstances, there was a reasonable possibility that the jury had reached its verdict on the first count with the belief that they should convict if each juror agreed the defendant molested the victim at least once, even if they did not agree on the particular act or all acts. (Id. at p. 1546.)
Here there is no reasonable possibility that the jurors differed on particular acts described by E.P. Every lewd act E.P. described consisted of sexual intercourse in appellants car. Appellants sole defense was that he did not commit any lewd act with a minor. His attorney argued that E.P. lied to police, no birth certificates were introduced, no DNA, blood, semen or hair evidence was introduced, and police pressured appellant to make the confession and supplied him with all the details of the alleged crimes. The jurors either believed E.P.s testimony and appellants confession, or they did not. Their unanimous belief is reflected in their verdicts of guilty as to all counts and their unanimous findings that all allegations were true.
Presentence Custody Credits
The trial court initially sentenced appellant to 30 years to life in prison, with 465 days presentence custody credits, consisting of 405 actual days and 60 conduct credits. Six days later, the trial court resentenced appellant to 15 years to life in prison, by making the sentences on counts 2 and 4 concurrent rather than consecutive. (§ 1170, subd. (d).) The court did not change presentence credits. However, the new abstract of judgment reflects 540 days of presentence custody credits, consisting of 470 actual days and 70 conduct credits. Appellant had served only five additional days in custody, entitling him to five additional actual days and additional conduct credit. (§ 2933.1.).
We order the trial court to correct appellants presentence custody credits to reflect 410 days of actual credits and 61 days of conduct credits, for a total of 471 days. The trial court shall amend the abstract of judgment and forward it to the Department of Corrections.
The judgment is otherwise affirmed.
We concur:
Gilbert, P.J.
Perren, J.