Opinion
F081078
08-23-2022
THE PEOPLE, Plaintiff and Respondent, v. UVALDO ZACARIAS, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, A. Kay Lauterbach, and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 16CMS3801. Donna L. Tarter, Judge.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, A. Kay Lauterbach, and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SNAUFFER, J.
Uvaldo Zacarias was convicted by jury of sexually abusing his minor stepdaughter. On appeal, he primarily contends Evidence Code section 1108, which permits admitting evidence a person is predisposed to commit sex crimes, compromised the trial. We disagree with his various arguments on this point.
Undesignated statutory references are to the Evidence Code.
Zacarias also asserts Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, §§ 1-3) (SB 567), enacted while this case was pending on appeal, undermines the court's pronouncement of judgment. SB 567 amended Penal Code section 1170 by significantly altering the judgment process. The People oppose but, as explained below, we agree with Zacarias and will order a new sentencing hearing.
Sentencing claims related to clerical errors and mandatory testing are moot.
BACKGROUND
Charges
The Kings County District Attorney charged Zacarias with committing two crimes: forcible lewd act upon a victim under age 14 (Pen. Code, § 288, subd. (b)(1); Count 1) and forcible sexual penetration upon a victim under age 14 (Pen. Code, § 289, subd. (a)(1)(B); Count 2).
Evidence
The victim testified Zacarias sexually abused her "about every day" and "almost every day of [her] life ...." She described two specific incidents.
In the first incident, Zacarias asked the victim to sit on his lap and then touched her "breasts" and "vaginal part." He physically prevented the victim from escaping the abuse.
In the second incident, Zacarias entered the victim's bedroom at night and started "messing with [her] breasts and stuff" and "vagina and stuff _." He ultimately put his "fingers inside of [her] vagina" but "quickly got up" and left when the victim's mother entered the room.
Zacarias denied the allegations. He "stated that [the victim and her mother] saw him with another woman, [which is the] reason they made up the allegations."
The denial and explanation were introduced through a separate witness.
Relevant Jury Instructions
The court instructed the jury with CALCRIM No. 1191A (CALCRIM 1191A) as follows:
"The People presented evidence that the defendant committed the crimes of lewd or lascivious acts on a child under the age of 14 years in violation of Penal Code section 288(a) that were not charged in this case. This crime is defined for you in these instructions.
"Y ou may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
"If the People have not met this burden of proof, you must disregard this evidence entirely.
"If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit lewd and lascivious act on a child under the age of 14 years with force in violation of Penal Code section 288(b) as charged in Count 1, the lesser offense of lewd and lascivious act on a child under the age of 14 in violation of Penal Code section 288(a), sexual penetration on a child under the age of l4 years with force in violation of Penal Code section 289(a)(1)(B) as charged in Count 2 and the lesser offense of assault with intent to commit sexual penetration in violation of Penal Code section 220(a)(2). If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of lewd and lascivious act on a child under the age of 14 years with force as charged in Count 1 and/or sexual penetration with force on a child under the age of 14 years as charged in Count 2 or lesser offenses. The People must still prove each charge beyond a reasonable doubt."
The uncharged conduct referred to the victim's testimony Zacarias abused her nearly "every day."
Verdict and Sentence
Zacarias was convicted as charged. He was sentenced to serve 22 years in prison, calculated as the upper term of 10 years on Count 1 plus the upper term of 12 years on Count 2.
DISCUSSION
As noted, section 1108 permits "evidence of the defendant's commission of another sexual offense or offenses ...." In general, CALCRIM 1191A explains to jurors how they may utilize such evidence in determining guilt. Zacarias raises several arguments related to section 1108 and CALCRIM 1191A.
First, Zacarias argues section 1108 is unconstitutional. Second, he argues section 1108, as applied in this case, violated his right to due process. Third, he asserts trial counsel was ineffective in failing to object to uncharged-sex-crimes evidence. Fourth, he claims CALCRIM 1191A, in essence, reduces the prosecution's burden of proof. We reject these claims.
Unrelated to section 1108, Zacarias challenges the judgment pursuant to SB 567's amendment to Penal Code section 1170. The amendment substantially alters the procedure when imposing an upper term sentence. We find SB 567 applies retroactively and justifies a new sentencing hearing in this case.
I. Evidence Code Section 1108 Is Constitutional
The California Supreme Court has "previously rejected the argument raised here ... that admission of prior crimes under Evidence Code section 1108 violates the constitutional right to due process and a fair trial." (People v. Dworak (2021) 11 Cal.5th 881, 900 (Dworak).) We are not at liberty to disagree. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Zacarias's argument fails.II. Evidence Code Section 1108 Did Not Violate Due Process In This Case Zacarias argues "the uncharged offenses should not have been allowed to be used as propensity evidence. The People should have been required to prove beyond a reasonable doubt that [he] committed each of the current charged offenses individually on their own merit, and it should not have been able to use Evidence Code section 1108 to lower its burden to what is effectively 'he did it before, therefore he must have done it again' and 'if you find one of these charges true beyond a reasonable doubt, then you can and should use that charge to find he committed other charged offenses beyond a reasonable doubt.'" He concludes the "evidence should have been excluded" "[p]ursuant to Evidence Code section 352 .."
Zacarias acknowledges this claim is presented solely to "preserve in the event of further post-conviction review the contention that admission of prior bad acts solely to show criminal propensity violates federal due process standards." The People urge us to deem the claim forfeited because it was not raised in the trial court. Zacarias argues raising this constitutional claim "would have been futile" because our Supreme Court has found otherwise. We agree with Zacarias no objection was necessary to preserve the challenge.
As noted, the uncharged conduct at issue here is the victim's testimony sexual abuse occurred "about every day" and "almost every day of her life .."
The People assert the argument is forfeited because there was no objection in the trial court. We agree with the People.
" 'By reason of [Evidence Code] section 1108, trial courts may no longer deem "propensity" evidence unduly prejudicial per se,' but trial courts 'must engage in a careful weighing process under [Evidence Code] section 352.' [Citation.] It is this discretion to exclude propensity evidence under Evidence Code section 352 that [renders section 1108 constitutional.] [Citation.] The admissibility of such evidence' "is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence."' [Citation.] We have instructed that the trial court's determination should be guided by such factors as the 'nature, relevance, and possible remoteness' of the evidence, '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.'" (Dworak, supra, 11 Cal.5th at p. 900.)
The problem in this case, as Zacarias correctly notes, is there was no section 352 analysis. This is because there was no objection to the evidence. Lack of objection forfeits the claim because it" 'deprives the trial court of the opportunity to correct potential error in the first instance.'" (People v. Valdez (2012) 55 Cal.4th 82, 142-143.) Indeed, Zacarias "concedes that under settled California law, his trial counsel's failure to object to the admission of the propensity evidence pursuant to Evidence Code section 1108 forfeited" the point.
Zacarias concedes there was no objection. He also claims the court erred by ruling," 'I don't know that it can be excluded ...." In other words, the court failed to carefully consider and weigh the evidence. This quote appears nowhere in the record. Our review reveals no ruling at all-the issue was not raised at trial.
III. Zacarias Cannot Prove Counsel Was Ineffective
Next, Zacarias contends "forfeiture should be excused due to trial counsel's performance being inexcusable and prejudicial." The People believe Zacarias "is mistaken." We find Zacarias has failed to demonstrate counsel was ineffective.
To prove ineffective assistance, Zacarias bears the burden to" 'show that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." '" (People v. Bell (2019) 7 Cal.5th 70, 125.) This he cannot do.
In arguing counsel was ineffective, Zacarias states only "there can be no possible tactical reason for counsel's failure to object to the admission of the evidence" and an objection would have required the court to rule pursuant to Evidence Code sections 1108 and 352, "or this issue would have at least been preserved for review." But Zacarias fails to address whether the court would have excluded the evidence or whether its exclusion would reasonably alter the verdict.
Arguably, not objecting to the evidence was a tactical choice. For example, because the defense theory was the victim fabricated the crimes, the victim's allegation Zacarias abused her daily served to amplify and highlight the fabrication. The People suggest this precise strategy as a reasonable tactic. The jury, of course, found otherwise.
More directly, we cannot find prejudice. The evidence in this case pitted the victim's testimony directly against Zacarias's denials. It was an all-or-nothing case; the charges were true or untrue. We do not believe the victim's singular statement the abuse occurred "almost every day" caused the jury to believe the crimes were proven beyond a reasonable doubt. Zacarias has failed to discharge his appellate burden to prove otherwise.
Zacarias argues "the single statement that this happened almost every day ... is all but impossible to defend against .." In other words, he suggests the evidence is fundamentally unfair. We disagree. Most obviously, the statement is subject to cross-examination. It is also subject to impeachment. For example, it is potentially an inconsistent statement if not previously disclosed, it opens the door to alibi or impossibility, and it is always subject to denial. Whether or not counsel chooses to "defend against" the statement is a separate question.
IV. CALCRIM 1191A Does Not Violate Due Process
The argument CALCRIM 1191A violates due process is foreclosed by the Supreme Court's opinion in People v. Villatoro (2012) 54 Cal.4th 1152. We reject Zacarias's contrary contention. (See id. at p. 1160.)
Zacarias presents this argument "to preserve it for possible review by our Supreme Court or federal review."
V. SB 567 Warrants A New Sentencing Hearing
SB 567, enacted after the sentencing hearing in this case, recently amended Penal Code section 1170. As relevant, it now reads:
"(2) The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Except where evidence supporting an aggravating circumstance is admissible to prove or defend against the charged offense or enhancement at trial, or it is otherwise authorized by law, upon request of a defendant, trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense." (Pen. Code, § 1170, subd. (b)(2).)
Zacarias claims this amendment applies retroactively on appeal and justifies remand.
The People concede retroactivity but argue remand is unnecessary because any prejudice is harmless beyond a reasonable doubt. We agree with Zacarias.
A. Additional Background
In pronouncing judgment, the court identified the following factors in aggravation:
"The victim was vulnerable in that the defendant resided in the same home; the defendant had reoccurring access to the child; the defendant took advantage of a position of trust; and engaged in violent conduct which also indicates he is a danger to the community."
These factors were neither found true beyond a reasonable doubt by a jury nor stipulated to by Zacarias. The court ascribed no particular importance to any factor and subsequently imposed the "aggravated term" for both counts.
B. Analysis
SB 567 applies "retroactively to all cases not yet final as of January 1, 2022." (People v. Lopez (2022) 78 Cal.App.5th 459, 465 (Lopez).) "[W]here a sentencing factor must be found true by a jury beyond a reasonable doubt and the court fails to submit that factor to the jury, the error in the court's reliance on that fact may be subject to harmless error review as to whether the lack of a finding by the jury was prejudicial:' "Failure to submit a sentencing factor to the jury, like failure to submit an element [of the crime] to the jury, is not structural error." [Citation.] Such an error does not require reversal if the reviewing court determines it was harmless beyond a reasonable doubt _. The failure to submit a sentencing factor to a jury may be found harmless if the evidence supporting that factor is overwhelming and uncontested, and there is no "evidence that could rationally lead to a contrary finding." '" (Ibid.)
The People suggest Zacarias suffers no prejudice because "a jury on remand would conclude beyond a reasonable doubt that appellant engaged in violent conduct that poses a danger to the community." They also claim the jury would have found it true the victim was vulnerable, Zacarias had recurring access to her, and he took advantage of a position of trust.
“[T]o conclude that the trial court's reliance on improper factors that were not found true by a jury or admitted by [Zacarias] was not prejudicial, we would have to conclude beyond a reasonable doubt that a jury would have found true beyond a reasonable doubt every factor on which the court relied, because [Penal Code section 1170 now] requires that every factor on which a court intends to rely in imposing an upper term, with the exception of factors related to a defendant's prior conviction(s), have been admitted by the defendant or proven to a jury (see [Pen. Code,] § 1170, subd. (b))." (Lopez, supra, 78 Cal.App.5th at pp. 465-466.) We cannot find the jury necessarily would have found Zacarias was a danger to the community.
We do not address the other factors because we find the community danger factor itself suffices to undermine the judgment. (Lopez, supra, 78 Cal.App.5th at pp. 465-466.) The pertinent question is "not whether the trial court could have relied on [a] single aggravating factor" but rather the "question is whether we can be assured that the trial court would have exercised its discretion to impose the upper term based on a single permissible aggravating factor, or even two or three permissible aggravating factors ... when the court originally relied on both permissible and impermissible factors in selecting the upper term." (Id. at pp. 466-467.) This record does not clearly answer the question.
Danger to the community was not an element of either crime. There was no evidence on the point. "It would be entirely speculative for us to presume, based on a record that does not directly address the aggravating factor[], what a jury would have found true ...." (Lopez, supra, 78 Cal.App.5th at p. 466.)
Importantly, "a reviewing court cannot always be confident that the f actual record would have been the same had aggravating circumstances been charged and tried to the jury." (People v. Sandoval (2007) 41 Cal.4th 825, 840 (Sandoval).) This is particularly true where, as here, one factor at issue was not an element of the charges and there was neither opportunity nor reason to address the factor relative to a stringent burden of proof. A new sentencing hearing is warranted. (See People v. Zabelle (2022) 80 Cal.App.5th 1098,[remand appropriate where "trial court gave no particular weight to any of its listed aggravating circumstances[ n]or did it indicate whether its decision to impose the upper term was (or was not) a close call."]; People v. Avalos (1984) 37 Cal.3d 216, 233 [reviewing court must "reverse where it cannot determine whether the improper factor was determinative for the sentencing court"].)
Of course, Zacarias did have the opportunity to address the community danger factor during the sentencing hearing. But a sentencing hearing does not substitute for a jury trial where the burden of proof is beyond a reasonable doubt. This is especially true where, prior to SB 567, the trial court was "not required to identify aggravating and mitigating factors, apply a preponderance of the evidence standard, or specify the 'ultimate facts' that 'justify'" its sentencing choice. (Sandoval, supra, 41 Cal.4th at pp. 850-851.) "Additionally, to the extent a potential aggravating circumstance at issue in a particular case," as here, "rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court." (Sandoval, supra, 41 Cal.4th at p. 840.)
In People v. Dunn (June 30, 2022, F083390)__ Cal.App.5th__ , a separate panel of this court recently found the sentencing issues related to SB 567 "harmless." (Dunn, supra, at *9.) But the factors in Dunn involved objective facts based on criminal history. (See id. at p. *4.) As recognized in Sandoval, supra, there is a qualitative difference between aggravating factors based on criminal history and subjective factors like community danger at issue in this case. (Sandoval, supra, 41 Cal.4th at p. 840.) The reason for the difference, ostensibly, is not that criminal history is determined by simple reference to documents. Rather, the difference is due to the fact a prior conviction has already complied with the Sixth Amendment right to trial by jury. In other words, every valid prior conviction has been proven beyond a reasonable doubt or was admitted to by the defendant. (See Apprendi v. New Jersey (2000) 530 U.S. 466, 488 [prior convictions are based on "proceedings with substantial procedural safeguards of their own"].)
DISPOSITION
The convictions are affirmed. The sentence is vacated. On remand, the trial court is directed to pronounce judgment in accordance with Penal Code section 1170, subdivision (b) and resentence Zacarias consistent with this opinion.
WE CONCUR: FRANSON, ACTING P. J., SMITH, J.