Opinion
G050954
01-24-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID ELIFAR VERDUZCO, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 11CF3067) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed as modified. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant David Elifar Verduzco urges us to reverse his convictions for child sexual abuse because the trial court admitted evidence of his uncharged sexual misconduct. He also contends the judgment is flawed because the jury's entire verdict was not read in open court. Other than to correct some undisputed clerical errors, we affirm.
FACTS
In the spring of 2011, appellant, then age 32, began giving piano lessons to 12-year-old E.C. at an Anaheim church where he worked as a worship leader. The lessons were initially held on the church stage, but appellant eventually moved them to a private classroom at the church. During these closed-door sessions, appellant often kissed E.C. and told her she was pretty. He also put his hand on her leg for long periods of time and told her he loved her. Appellant videotaped E.C. playing the piano during some of the sessions, too. E.C. knew about the taping, but she did not know appellant sometimes angled his video camera so it recorded underneath her skirt.
The second victim in this case was J.V., age 9. Her family attended the same church as E.C. and was so close to appellant that J.V. and her siblings often referred to him as their uncle. One night in August 2011, appellant was babysitting J.V. and two of her sisters at their residence. As J.V. was getting into bed with her sleeping sisters, she noticed appellant masturbating on the bed next to hers. Appellant offered her $20 if she would touch his penis, but she refused. Appellant then came over to her and began touching her vagina. When she told appellant she did not like that, he gave her a dirty look and left the room. On the way out, he threatened to hurt J.V. if she told anyone what he had done to her. Nonetheless, she reported the incident to her parents a few days later. In speaking with authorities, she also revealed that appellant had tried to kiss and hold her in ways that made her feel uncomfortable on other occasions and that he once took a video of her while she was in her underwear at the doctor's office.
When interviewed by the police, appellant confessed to masturbating in front of J.V. and touching and penetrating her vagina with a finger. He also admitted placing his video camera underneath E.C.'s skirt and being physically attracted to her. He wrote both girls letters in which he apologized for his "disgusting," "horrible" and "perverted" behavior toward them.
In addition to the foregoing, the prosecution presented evidence appellant engaged in uncharged sexual misconduct with E.B. E.B. testified she met appellant while performing in a church play with him in the spring of 2003. At the time, she was 16 years old and he was 23. Their relationship evolved quickly, and before long appellant was telling E.B. he loved and wanted to marry her. He also told her being in love meant she should shave her pubic area and they should have sex. Being enamored of appellant, E.B. agreed to do these things. On the day after they first had sex, appellant asked her if she had experienced any vaginal bleeding. When she said yes, appellant said he was glad because that meant she had been a virgin. E.B. and appellant had sexual intercourse a few more times after that, but bowing to pressure from their parents, they agreed to tone down their relation until E.B. turned 18. When E.B. reached that age, she was excited to renew a full relationship with appellant, but he was no longer interested in having sex with her.
The jury convicted appellant of sexually penetrating a child age 10 or younger, three counts of lewd conduct with a child under the age of 14, misdemeanor child annoyance, and misdemeanor disorderly conduct for videotaping underneath E.C.'s skirt. (Pen. Code, §§ 288.7, subd. (b); 288, subd. (a); 647.6, subd. (a)(1); 647, subd. (j)(2).) The jury also found true allegations appellant engaged in substantial sexual conduct and committed lewd acts against more than one victim. (Pen. Code, §§ 1203.066, subds. (a)(7) & (8); 667.61, subds. (b), (c) & (e)(4).) In light of these findings, the trial court sentenced appellant to 30 years to life in prison.
DISCUSSION
Evidence of Appellant's Sexual Misconduct with E.B.
Appellant contends the trial court abused its discretion in admitting the uncharged evidence of his illicit affair with E.B. We disagree.
Evidence of a defendant's prior bad acts is generally inadmissible to prove his conduct on a specific occasion or his propensity for criminal activity. (Evid. Code, § 1101, subd. (a).) However, such evidence may be admitted to prove some other material fact in the case, such as motive or intent. (§ 1101, subd. (b).) An exception to the propensity rule also exists in cases involving sex crimes. In such cases, "evidence of the defendant's commission of another sexual offense . . . is not made inadmissible by [s]ection 1101, if the evidence is not inadmissible pursuant to [s]ection 352." (§ 1108, subd. (a).)
Unless noted otherwise, all further statutory references are to the Evidence Code.
Section 352 empowers the trial court to exclude evidence if its probative value is substantially outweighed by the probability its admission would cause undue prejudice, confusion or delay. Under this section, the trial court has broad discretion to admit or exclude evidence, and its decision to do so will not be disturbed unless it is arbitrary, capricious or patently absurd. (People v. Kelly (2007) 42 Cal.4th 763, 783; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
In this case, the evidence of appellant's uncharged crime of statutory rape against E.B. was not confusing, contested or time consuming. And compared to the evidence of the charged offenses, which involved vulnerable preteen victims, it was relatively benign. These factors lessened the prejudicial impact of the subject evidence. (People v. Whisenhunt (2008) 44 Cal.4th 174, 205; People v. Ewoldt (1994) 7 Cal.4th 380, 405.) Nonetheless, appellant contends his sexual misconduct with E.B. was so dissimilar to the charged offenses as to have no probative value whatsoever. In his view, it simply "does not stand to reason that a 23 year old who had a relationship with a 16 year old [would have] any sort of propensity to be attracted to girls under the ages of 10 and 14."
Contrary to appellant's assumption, similarity between the uncharged and charged sex crimes is not a requirement under section 1108. (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41.) In fact, courts have recognized that imposing a similarity requirement would undermine the purpose of the statute and ignore the fact many sex offenders are not specialists in terms of the crimes they commit. (People v. Soto (1998) 64 Cal.App.4th 966, 984.)
As a practical matter, it is true that the less similar the uncharged sex crimes are to the charged offenses, the less relevance the former will likely have in terms of proving the defendant's propensity to commit the latter. (See, e.g., People v. Earle (2009) 172 Cal.App.4th 372, 398 [questioning whether the defendant's act of indecent exposure was relevant to prove he had a propensity to commit rape].) Lack of similarity between the charged and uncharged offenses can also make it more difficult for the uncharged crimes to pass muster under section 352. (See, e.g., People v. Harris (1998) 60 Cal.App.4th 727, 738-741 [admission of evidence regarding the defendant's prior sex offense should have been excluded because, inter alia, it was much more inflammatory and violent than the charged sex crimes].) However, there are no hard and fast rules respecting the admission of uncharged sex crimes; each case must be decided on its own facts, and on appeal we must keep in mind that the determination of whether such evidence should be admitted "is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence." (Id. at p. 730, quoting People v. Fitch (1997) 55 Cal.App.4th 172, 183.)
We do not believe the trial court abused its discretion in admitting evidence that appellant had unlawful sexual intercourse with E.B. to prove his propensity to commit the charged offenses. There were, after all, some similarities between the subject offenses. For example, appellant did not use any physical force or violence to commit either the charged or uncharged offenses, and appellant had relationships with both the charged and uncharged victims, they were not strangers. Moreover, even though E.B. was older than the victims of the charged offenses, appellant had her shave her pubic hair before having sex with her and then showed no interest in her at all once she turned 18, which suggests a penchant for younger girls, which would be very relevant.
In arguing his uncharged crimes were irrelevant, appellant points out he was in a dating relationship with E.B. when they had sexual intercourse. However, despite appellant's attempt to characterize his sexual relations with E.B. as consensual, minors cannot legally consent to having sex with adults. This rule stems from the realization minors need special protection from adults who might be tempted to exploit their lack of social, cognitive and emotional development. Appellant, in victimizing E.B., demonstrated he was such an adult. Based on his actions toward her, the jury could reasonably conclude he had a predatory nature and was thus inclined to target and victimize other females, including children under the age of puberty. No evidentiary error occurred.
Appellant also challenges as unconstitutional the pattern jury instructions that were given with respect to the evidence of his uncharged sexual misconduct. (See CALCRIM No. 1191.) However, as appellant admits, the California Supreme Court has upheld materially similar instructions in other cases (People v. Villatoro (2012) 54 Cal.4th 1152; People v. Reliford (2003) 29 Cal.4th 1007; People v. Falsetta (1999) 21 Cal.4th 903), and we are required to follow those cases as a matter of stare decisis (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). Seeing that appellant's instructional argument is primarily designed to preserve his claim for possible federal review, we need not discuss it further. --------
Failure to Read the Jury's Verdict on Count 5 in Open Court
Appellant was charged in count 5 with lewd conduct with E.C. in touching her with sexual intent during the course of her piano lessons. (Pen. Code, § 288, subd. (a).) As to that count, the prosecution also alleged as an attendant allegation that appellant committed lewd conduct against more than one victim. (Pen. Code, §§ 667.61, subds. (b), (c) & (e)(4), 1203.066, subd. (a)(7).) Appellant contends his conviction on the substantive offense charged in count 5 must be reversed because the trial judge's clerk did not read the verdict on that charge in open court. Not so.
When the jury returned to the courtroom with its verdict, the judge asked the foreperson if the jury had reached a unanimous verdict on all of the counts and allegations, and he said yes. In fact, the verdict forms reflect the jury found appellant guilty on all counts and found all allegations to be true. However, when the court clerk read the verdict aloud, she did not say anything about the substantive charge of lewd conduct that was alleged in count 5. Rather, she simply announced the jury had reached a true finding on the attendant allegation that appellant committed lewd conduct against more than one victim. Without objection, the clerk then proceeded to read the rest of the verdict. When she was finished, the judge asked the jurors, "are these your verdicts?" and they answered collectively in the affirmative. Neither side took up the judge's offer to poll the jurors individually, so the judge thanked and dismissed them.
Moments later, the trial court realized that when he handed the verdict forms to the clerk for her to read, he had inadvertently failed to give her the form for the substantive offense charged in count 5. The judge initially thought this was cause to dismiss count 5. However, after hearing argument on this issue from the parties, the judge ordered the clerk to record the jury's written verdict on that count, which was guilty.
Appellant contends this procedure violated his right to a unanimous verdict as guaranteed by the California Constitution. (Cal. Const., art. I, § 16.) However, as reflected in its written verdict, the jury did in fact reach a unanimous verdict on all of the charges against appellant, including the substantive offense charged in count 5. Thus, we must decide whether the clerk's failure to read the verdict on that charge in open court was such a serious omission as to undermine appellant's constitutional rights. For the reasons explained below, we think not.
As our Supreme Court has explained, there are a variety of "procedural provisions" that are "designed to protect the right to a unanimous verdict. [Citation.]" (People v. Anzalone (2013) 56 Cal.4th 545, 555.) At issue here is the procedural provision set forth in Penal Code section 1164, subdivision (a) which states: "When the verdict given is receivable by the court, the clerk shall record it in full upon the minutes, and if requested by any party shall read it to the jury, and inquire of them whether it is their verdict. If any juror disagrees, the fact shall be entered upon the minutes and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury shall, subject to subdivision (b), be discharged from the case." (Pen. Code, § 1164, subd. (a).)
Appellant argues there was not full compliance with this provision because the clerk did not read the entire verdict on count 5 to the jury. However, appellant never voiced any objection to the verdict when it was read in open court, and therefore he forfeited his right to do so now. (See People v. Anzalone, supra, 56 Cal.4th at pp. 550-551 [forfeiture rule applies to alleged defects in the procedural rules governing the taking of a verdict].)
Moreover, by its terms, Penal Code section 1164, subdivision (a) only requires the clerk to read the verdict in open court when he or she is requested to do so by one of the parties. In this case, neither party requested the clerk to read the verdict aloud. Accordingly, the clerk's failure to read the entire verdict on count 5 did not run afoul of Penal Code section 1164. Although appellant argues that failure made it impossible for the jurors to affirm their verdict as to that count, sufficient affirmation was provided at the outset of the proceedings when the foreperson acknowledged the jury had reached a unanimous verdict on all of the counts and allegations, as reflected in the verdict forms. (See People v. Anzalone, supra, 56 Cal.4th at p. 551 ["a foreperson's oral declaration may provide sufficient acknowledgment of the verdict."].)
In any event, any error that may have occurred by virtue of the clerk's failure to read the verdict on the substantive crime charged in count 5 was manifestly harmless under the circumstances presented in this case. While appellant claims this failure amounted to a structural defect in the trial necessitating automatic reversal, our Supreme Court has determined procedural errors in the taking of a verdict are subject to the same harmless error analysis that applies to most other types of trial error. (People v. Anzalone, supra, 56 Cal.4th at pp. 553-560.) Under that analysis, reversal is only required if it is reasonably probable the defendant would have achieved a better result had the alleged error not occurred. (Ibid., citing People v. Watson (1956) 46 Cal.2d 818.)
Here, the evidence as to the lewd conduct offense charged in count 5 was so overwhelming that appellant's attorney conceded appellant's guilt on that charge at trial. Additionally, the written verdict forms show the jury found appellant guilty on that count. And although the clerk did not read the full verdict on that count in open court, she did read the jury's true finding on the attendant allegation that appellant committed lewd conduct against multiple victims. Considering all of these things, any error that occurred as a consequence of the clerk's failure to read the entire verdict was not prejudicial.
Undisputed Clerical Errors
As to counts 3 (misdemeanor child annoyance) and 6 (misdemeanor disorderly conduct), the abstract of judgment states the trial court stayed appellant's "prison sentence" on those counts pursuant to Penal Code section 654. The abstract also states appellant is to submit to AIDS testing due to his conviction on various counts, including count 3. However, since counts 3 and 6 involved misdemeanor offenses, appellant was not given a "prison sentence" on those counts. And count 3 does not involve an offense for which AIDS testing is required, although such testing is required due to appellant's other convictions. (Pen. Code, § 1202.1.) Therefore, as respondent concedes, a modification of the judgment is in order.
DISPOSITION
The abstract of judgment is modified to delete the reference to a prison sentence on counts 3 and 6 and to delete the AIDS testing requirement as to count 3. The clerk of the Superior Court shall prepare an amended abstract of judgment reflecting these corrections and send a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: IKOLA, J. THOMPSON, J.