Gerald J. Miller, 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, A. Natasha Cortina, and Annie Featherman Fraser, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV1404847) OPINION APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed with directions. Gerald J. Miller, 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, A. Natasha Cortina, and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Diego Reyes Martinez of three sexual offenses committed on June 12, 2010. (Pen. Code, §§ 288.7, subd. (b), (count 1) and 288, subd. (b)(1) (counts 2 and 3).) The trial was conducted in March and April 2016. After the jury verdict, the court sentenced defendant to an indeterminate prison term of 33 years to life.
All statutory references are to the Penal Code unless stated otherwise.
The issues on appeal involve juror misconduct, propensity evidence, and a sentencing error. We agree with respondent that only the sentence on count 3 should be stayed; counts 1 and 2 are separate crimes. Subject to that modification, we affirm the judgment.
June 12, 2010—Jane Doe
In June 2010, Jane Doe was 10 years old and lived in Fontana in a two-bedroom house with her family. Jane Doe, her parents, and her sister shared one of the bedrooms.
Defendant had been their neighbor. Defendant's niece was a friend of Jane Doe's.
On June 12, 2010, Jane Doe's parents were formally married at a church with a reception held at their house from 3:00 p.m. until 10:00 p.m. Defendant was not expressly invited but attended the reception with his family. At the reception, Jane Doe was playing with a friend, D.G., and D.G.'s sister.
Jane Doe wore a white dress that she later switched to a green dress. When Jane Doe went to her bedroom to find the green dress, she was accompanied by D.G. Defendant followed them into the bedroom and put his hand on Jane Doe's left breast inside her dress. Jane Doe was shocked and scared but, after defendant left the room, she and D.G. kept looking for the green dress. D.G then left the room while Jane Doe changed.
Defendant reentered the bedroom and shoved Jane Doe onto the bed. He covered her mouth with his hand and groped her breasts. Then he lifted up her dress and pulled down her underwear, undid his belt buckle, unzipped his pants, and vaginally penetrated her with his penis. Her stomach began hurting as if someone had hit her "really hard." She was scared and tried to scoot away. Defendant continued groping her breasts. Eventually he pulled up his jeans and left.
In closing argument, the prosecutor identified the sexual penetration as the basis for count 1 and the repeated sexual touching as the bases for counts 2 and 3. --------
Jane Doe cried in the bedroom. She did not tell anyone what had happened because she was scared. Later in the evening, she encountered defendant in the living room while she was lying on the couch with D.G. and he put his hand down her dress again.
D.G. gave Jane Doe a "wondering look" before asking Jane Doe's mother if Jane Doe could spend the night at D.G.'s house. When D.G. asked Jane Doe why defendant was touching her, Jane Doe said she did not know. D.G. testified that she thought defendant was trying to tickle Jane Doe during the incident on the couch.
Jane Doe tried to forget what had happened and be happy. In September 2014, when Jane Doe was 14 years old, a teacher's aide at school recounted the story of when she was raped. Jane Doe began crying and told the aide what had happened to her at the wedding. The school called Jane Doe's mother and Jane Doe disclosed the abuse to her parents and to the police. She told the police that defendant had touched her breasts and genitals in addition to raping her. Jane Doe could not make an identification of defendant from a photographic lineup. The parents identified defendant as Jane Doe's friend's uncle. July 14, 2012—Mary Doe
Mary Doe was nine years old on July 14, 2012, the day of a baby shower. Defendant was not an invited guest. While Mary Doe was playing on an inflatable jumper, defendant approached her and tried to give her money before putting his hand up her skirt and rubbing her genital area for a few seconds. She left and began crying and hugging herself. Mary Doe told her brother and a babysitter what had happened and identified defendant.
After the prosecution rested, defendant did not testify.
Defendant argues the trial court erred in how it handled an incident of juror misconduct. The jury deliberated for about two and one-half hours the first day. On the second day, after deliberating for about three hours, the jury announced at 2:00 p.m. it had reached a verdict. However, the foreman, Juror No. 3, expressed concern that Juror No. 9 had committed misconduct by independently researching the meaning of reasonable doubt. Juror No. 9 then admitted to the court that she had looked up the term "reasonable doubt" because she "wanted to know exactly what it meant" and she was "looking in the dictionary for a definition." The court dismissed her for juror misconduct. The court declared the verdict null and void and recessed the trial to allow the appointment of an alternate. After another hour of deliberations, the new jury reached a verdict.
Defense counsel made a motion for mistrial, which the court denied. On appeal, defendant urges the trial court erred. We disagree. Although Juror No. 9 was excused for doing independent research on the definition of reasonable doubt, she clearly committed misconduct. However, there was no prejudice in how the court dismissed Juror No. 9 because there was no juror bias affecting the ultimate verdict. (People v. Bryant (2011) 191 Cal.App.4th 1457, 1471.)
Juror misconduct occurs when a juror violates her oath, duties, or admonitions, receives outside information, or shares improper information with other jurors. (In re Hamilton (1999) 20 Cal.4th 273, 294.) Section 1089 authorizes the trial court to exercise broad discretion to discharge a juror upon good cause, if the juror is "found to be unable to perform [her] duty, . . ." (People v. Millwee (1998) 18 Cal.4th 96, 142, fn. 19.)
The reviewing court must be confident that the trial court's conclusion is manifestly supported by evidence on which the court actually relied. (People v. Barnwell (2007) 41 Cal.4th 1038, 1053.) Although juror misconduct generally raises a rebuttable presumption of prejudice, the verdict is only to be set aside if there appears a "substantial likelihood" of juror bias. (People v. San Nicolas (2004) 34 Cal.4th 614, 696-697.) Bias is shown if either (1) the extraneous material is, judged objectively, inherently and substantially likely to have influenced the juror or (2) the nature of the misconduct and the surrounding circumstances show it is substantially likely the juror was actually biased against the defendant. (Ibid.) The "demonstrable reality" test "requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that bias was established." (Barnwell, at pp. 1052-1053; People v. Virgil (2011) 51 Cal.4th 1210, 1242.)
The record shows there was no prejudice due to juror bias. The foreperson informed the court that, when Juror No. 9 announced she had researched the meaning of reasonable doubt, she was prevented from discussing that information with the rest of the jury. There was not a substantial likelihood of juror bias because the jurors did not know the results of Juror No. 9's research and it could not have affected their deliberations. Thus, the presumption of prejudice was rebutted.
Defendant claims that, by replacing the offending juror with an alternate instead of declaring a mistrial, the court allowed juror bias to affect the verdict. In support he relies on cases which are distinguishable. In People v. Holloway (1990) 50 Cal.3d 1098, 1106-1107, a juror had learned the defendant was on parole after reading it in a newspaper. The misconduct was not discovered until five days after the jury rendered a guilty verdict. The court held it was prejudicial because the court "had no opportunity to request curative measures such as the replacement of the tainted juror with an alternate or a limiting instruction or admonition." (Id. at p. 1111.) Here, the court replaced the offending juror with an alternate before there was a verdict. Holloway actually supports respondent's position that any prejudice was cured by removal of Juror No. 9.
Defendant also relies on People v. Guzman (1977) 66 Cal.App.3d 549, a case in which jurors were "bargaining" their votes—i.e., one juror would vote to acquit one defendant if other jurors would vote to convict the other defendant. Although the one juror was replaced, it was only after he was permitted to "harangue and pollute his fellow jurors for two additional days of deliberations." (Id. at p. 560.) The trial court did not conduct an adequate investigation and did not instruct the reconstituted jury to deliberate anew. (Id. at pp. 560-561.) In contrast, the trial court here investigated the concerns raised about Juror No. 9 and removed her.
Unlike in Guzman, Juror No. 9 did not taint the jury with her misconduct although earlier she may have engaged in speculation, talked about television shows, and made anecdotal references to her own grandchildren. Even if there was misconduct, it was hardly prejudicial because the other jurors advised Juror No. 9 to focus on the facts, not on the personality conflict between her and Juror No. 11. Furthermore, the court cured any potential misconduct by instructing the jurors to focus on the evidence and facts, to put aside any personality conflicts, and to heed the views of others, and reinstructed on CALCRIM No. 3550 about being an impartial judge of the facts.
Finally, although the reconstituted jury completed its deliberations in an hour, "the brevity of the deliberations proves nothing." (People v. Leonard (2007) 40 Cal.4th 1370, 1413.) "When, as here, there are no indications to the contrary, we assume that the jurors followed the trial court's instructions and started afresh." (Ibid.; see People v. Williams (2015) 61 Cal.4th 1244, 1280.) The trial court followed the proper course by removing the offending juror and properly instructing the jury to begin deliberations anew. The presumption of prejudice was rebutted by the trial court.
OTHER UNCHARGED CONDUCT
On appeal, defendant contends the trial court erred by not striking the testimony about defendant touching Jane Doe in the living room after the rape in the bedroom because the People did not give notice that they intended to admit it as propensity evidence. When defendant requested the court strike the testimony, he failed to state it was based on the prosecutor's violation of discovery statutes, or that he did not have sufficient notice. Thus, defendant has forfeited his claim of error on this basis. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 112.) Even if he preserved his claim, it fails on the merits because the evidence that defendant touched Jane Doe in the living room was not actually admitted as propensity evidence under Evidence Code section 1108.
The prosecutor learned about the living room incident two weeks before trial. At trial, the prosecutor elicited the testimony, without objection, from both Jane Doe and D.G., that defendant put his hands down Jane Doe's dress while she and D.G. were on the couch in the living room. When defense counsel moved for acquittal under section 1118.1, he stated he was not sure whether the conduct supported counts 2 or 3. The prosecutor said it was not the basis for either count. Instead, she was relying on defendant's other acts in the bedroom—touching Jane Doe's breasts and genitals—while defendant's living room conduct was intended to bolster Doe's credibility. The court denied the motion to acquit and the defense motion to strike the testimony for several reasons, including relevance: "[I]t's a pattern of conduct. Again, that's important for the jurors to consider in regards to his propensity and the fact that it does bolster Jane Doe's testimony with an independent party to also testify to the defendant's conduct in the living room, so I think it was relevant and material in regards to what may have occurred in the bedroom."
Evidence must be relevant to be admissible. (Evid. Code, § 350.) Relevant evidence is that which has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) This court reviews a trial court's ruling on an evidentiary question for abuse of discretion. (People v. Thompson (2010) 49 Cal.4th 79, 128.)
Here, the evidence was relevant as substantive evidence of the crime. Shortly after raping Jane Doe, defendant put his hand down her dress. The evidence was relevant to show defendant's conduct on the same evening as the rape. The prosecutor argued in closing that it could be used "as corroborating evidence as to Jane Doe's credibility." CALCRIM No. 1191, on the uncharged counts, applied to the testimony of Mary Doe.
Even if it was used as propensity evidence as the trial court mentions, it still was admissible. Evidence Code section 1108 provides that propensity evidence is admissible in cases in which the defendant is accused of a sexual offense, and is not inadmissible under Evidence Code section 352. It provides "the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered in compliance with the provisions of Section 1054.7 of the Penal Code." (Evid. Code, § 1108, subd. (b).) Section 1054.7 provides that discovery shall be made at least 30 days before trial, but if the material becomes known within 30 days of trial, as here, "disclosure shall be made immediately, unless good cause is shown why disclosure should be denied, restricted or deferred." Nothing in the record shows that the prosecutor did not timely disclose the witness statements to defendant. Defendant never objected on the record. Therefore, no statutory violation occurred.
Although there are factors supporting the requirement to notify the opposing party of the substance of propensity evidence, none of them support an argument that the Legislature intended the prosecutor to specify the purpose of the evidence. The purpose of the notice requirement is to assure "that the defendant will not be surprised or unprepared to rebut the proposed evidence." (People v. Falsetta (1999) 21 Cal.4th 903, 916.) By turning over the witness statements, the defendant will be prepared and will not be surprised.
The only authority for defendant's argument is In re Hess (1955) 45 Cal.2d 171, 175. That case did not address Evidence Code section 1108, or any similar statute, and does not support defendant's position. Instead, Hess held that a person cannot be convicted of an offense that is not charged, even if evidence was produced at trial to show he committed it. (Id. at pp. 174-175.) Defendant does not argue that he did not have sufficient notice of the charges. The prosecutor presented admissible and relevant evidence of all charged counts. Based on the foregoing, defendant's claim fails.
Finally, there was no prejudice because any error was harmless under Watson, the standard for any state law error, as it is not reasonably probable a result more favorable to defendant would have been reached absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) Contrary to defendant's assertion, this was not a close case. Jane Doe testified in detail about being molested and raped by defendant. It is not reasonably probable defendant would have achieved a more favorable result if the court had stricken the evidence that defendant put his hand down her dress after he raped her, Thus, any error was harmless.
At the sentencing hearing, the parties and the court discussed whether counts 2 and 3 should receive concurrent sentences. The court indicated it was going to impose one of the counts consecutively and the other concurrently because even though it was the same victim on the same occasion, it felt that "in regards to the one conduct of the defendant in terms of the under the clothing contact by force of Jane Doe's breasts and the over the clothing touch of the genital area of Jane Doe that I was going to give the midterm of 8 years." The court further explained that "even though there are factors and circumstances in aggravation," it was going to impose the midterm of eight years on count 2, to be run consecutively to count 1. Thus, it imposed 25 years to life on count 1, eight years consecutively on count 2, and eight years concurrently on count 3, for a total of 33 years to life.
Section 654 precludes punishment for two offenses arising from the same act. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Section 654 applies where there is one act and also where a course of conduct violates more than one statute. (Ibid.) Whether conduct is divisible depends upon the intent and objective of the defendant. (Ibid.) Even where the violations share common acts or are parts of an otherwise indivisible course of conduct, the defendant may be punished for multiple violations if the defendant entertained multiple criminal objectives that were independent of and not merely incidental to each other. (People v. Harrison (1989) 48 Cal.3d 321, 335; People v. Beamon (1973) 8 Cal.3d 625, 638-639; People v. Kwok (1998) 63 Cal.App.4th 1236, 1252-1253.)
On appeal, the trial court's express and implied findings with respect to section 654 are entitled to deference. Whether a course of criminal conduct violating more than one penal statute constitutes a divisible course of action and whether the violations were committed with separate criminal intents or objectives are ordinarily questions of fact for the trial court, whose express or implied findings will be upheld if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730; People v. Andra (2007) 156 Cal.App.4th 638, 640-641.) The trial court's determination must be reviewed in the light most favorable to the respondent, presuming the existence of every fact the trial court could reasonably deduce from the evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
However, the rule under section 654 is different in sex crimes and, even where the defendant's only objective is sexual gratification, section 654 does not preclude separate punishment unless the crimes "were either incidental to or the means by which another crime was accomplished." (People v. Alvarez (2009) 178 Cal.App.4th 999, 1006-1007.)
In People v. Perez (1979) 23 Cal.3d 545, 553-554, the court found that section 654 did not apply to a defendant who committed several sex crimes on a single victim during one continuous attack, holding that "[n]one of the sex offenses was committed as a means of committing any other, none facilitated commission of any other, and none was incidental" to any other. (Ibid.) The court held that a defendant who attempted "to achieve sexual gratification by committing a number of base criminal acts on his victim [wa]s substantially more culpable than a defendant who commit[ed] only one such act." (Id. at p. 553.)
Similarly, in People v. Harrison, supra, 48 Cal.3d at page 336, the court declined to apply section 654 to a sexual attack in which the defendant inserted his finger into the victim's vagina three separate times, separated by other violent acts by the defendant. (Id. at pp. 325-326.) The court affirmed the sentencing of defendant to consecutive terms for each crime of sexual penetration, holding that to apply section 654 on the basis that the sexual acts were all the same and done in sequence "would mean that 'once a [defendant] has committed one particular sexual crime against a victim he may thereafter with impunity repeat his offense,' so long as he does not direct attention to another place on the victim's body, or significantly delay in between each offense. [Citation.]" (Id. at p. 337.)
Substantial evidence supports the trial court's determination that counts 1 and 2 were separately punishable. The prosecutor argued that counts 2 and 3 were for defendant's acts, while penetrating Jane Doe's vagina and with his hand over her mouth, of fondling her breasts and touching her genitals. The court noted, when sentencing defendant to a consecutive term on count 2, that defendant's conduct was touching Jane Doe's breasts under her clothes and touching her genital area over her clothes. Defendant's forcible fondling of the victim was properly punished. "[S]ection 654 does not apply to sexual misconduct that is 'preparatory' in the general sense that it is designed to sexually arouse the perpetrator or the victim." (People v. Alvarez, supra, 178 Cal.App.4th at p. 1006.)
Most of the cases cited by defendant do not involve sexual conduct or are distinguishable. In People v. Greer (1947) 30 Cal.2d 589, 591-592, 603, the court held that the defendant may not be punished both for statutory rape and lewd and lascivious conduct, based on a single act of intercourse with his stepdaughter, because only one act formed the basis of both counts. Here there were two different acts. The purpose of the rule in sexual offenses allowing multiple punishment is because a defendant who attempted "to achieve sexual gratification by committing a number of base criminal acts on his victim [wa]s substantially more culpable than a defendant who commit[ed] only one such act." (People v. Perez, supra, 23 Cal.3d at p. 553.) It is "clear that an accused may be separately punished for sex acts of the same nature committed during a single encounter." (People v. Catelli (1991) 227 Cal.App.3d 1434, 1446.) Defendant can be separately punished for separate violations against Jane Doe.
Even if defendant had time to reflect on each sex act that he committed, separate punishment is not precluded unless the crimes either incidental or the means to accomplish another crime. In Alvarez, the court held that kissing, penetrating the victim's vagina digitally, and forcing her to fondle his penis were all distinct and separate sexual acts, and none were necessary to accomplish the other acts. Each act could be punished separately consistent with section 654. (People v. Alvarez, supra, 178 Cal.App.4th at p. 1006.)
Similarly, here, the act of forcible penetration could be punished separately from the act of fondling Doe's breasts and genitals. As defendant's touching of Jane Doe's breasts and genitals was not incidental to the forcible penetration, he was properly punished for his conduct.
Finally, as it appears the trial court deemed counts 2 and 3 to be subject to section 654, the proper remedy is to stay the sentence on count 3, not run it concurrently. (People v. Deloza (1998) 18 Cal.4th 585, 592.)
We order the trial court to correct the abstract of judgment to stay the sentence on count 3 and to forward a copy of the corrected abstract to the Department of Corrections and Rehabilitation. Subject to that modification, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
J. We concur: McKINSTER
Acting P. J. MILLER