Opinion
E049759 Super.Ct.No. RIF139462
09-13-2011
THE PEOPLE, Plaintiff and Respondent, v. GUADALUPE CABRAL, Defendant and Appellant.
Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, and Kristen Kinnaird Chenelia, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Jean P. Leonard, Judge. Affirmed.
Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Guadalupe Cabral appeals from judgment entered following jury convictions for committing forcible and nonforcible lewd acts upon Jane Doe 1 (Pen. Code, § 288, subds. (a) and (b); counts 1 and 2), and committing forcible lewd acts upon Jane Doe 2 (§ 288, subd. (b); counts 6 through 15). The charged crimes occurred during the period of January 1, 2006, to July 2007. The jury also found true the multiple victim allegation (§ 667.61, subd. (e)(5)) and a prior serious felony conviction enhancement (§ 667, subd. (a)). The trial court sentenced defendant to 185 years to life in prison.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the trial court violated his state and federal constitutional rights to due process and a fair trial by denying his Pitchess motion. Defendant also asserts the trial court erred in failing to hold an evidentiary hearing on whether his statements were voluntary and erred in refusing to exclude defendant's statements as involuntary and coerced. Defendant claims the trial court's inadvertent error in allowing the jury to hear an unredacted pretext tape violated his state and federal constitutional rights to due process and a fair trial. Defendant challenges the trial court's failure to instruct the jury on the lesser included offense of nonforcible lewd conduct, and argues the prosecutor erred in prosecuting him for multiple separate counts of lewd conduct under section 288, rather than for a single count under section 288.5 for committing continuous sexual abuse. Defendant contends this case must be remanded for resentencing because the trial court was unaware it had discretion to run the 15 year to life term on count 2 concurrent with the remaining terms.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We reject defendant's contentions and affirm the judgment.
II
STATEMENT OF FACTS
Defendant and Monique Cabral (Monique) met around 2003. At that time, Monique and her three girls, Jane Doe 1 (born in September 1996), Jane Doe 2 (born in October 1997), and Sarah, who was about three years old, were living with Monique's parents. Defendant and Monique dated for about eight months, before marrying.
After defendant and Monique married, the couple and Monique's three girls lived with defendant's father for about six months and then moved to a three-bedroom apartment in Corona. Monique and defendant shared a room, Jane Doe 1 had her own room, and Jane Doe 2 and Sarah shared the third room. Monique worked three to five days a week as a nurse's assistant. Defendant worked on and off in construction. When defendant was not working, he watched Monique's girls after school while Monique was at work.
Defendant and Monique's marriage was tumultuous, with the couple frequently arguing in front of the girls. Monique encouraged defendant to be a "father figure" towards the girls. He tended to discipline the girls more severely than Monique. Defendant and Monique argued over his disciplining the girls but Monique did not tell him to stop. Jane Doe 1 believed defendant disciplined her more than the other girls. She never liked defendant. She thought he was mean and too strict with her. Jane Doe 1 was also frightened by defendant and Monique's arguments. Sometimes defendant and Monique threw things at each other and yelled.
Jane Doe 2, on the other hand, initially was very fond of defendant and close to him. She called him Papa Bear and he called her Little Bear. Sometimes they played tickle games. He would tickle her on her stomach and legs, and nibble or blow on her. However, over time Jane Doe 2 became more distant toward defendant.
In July 2007, defendant hit Monique during an argument. Monique and the girls left defendant and stayed with Monique's parents. Monique's mother, Maria noticed bruising on Monique and a change in the girls' demeanor toward defendant. Jane Doe 2 no longer wanted to be around defendant. In September 2007, Monique told Maria that she and defendant were once again reconciling. Jane Doe 1 and Jane Doe 2 said they did not want to leave Maria's home. They repeatedly said they were afraid to go back home. Jane Doe 2 indicated she did not want to go near defendant.
On September 6, 2007, after Maria's mother-in-law told Maria she suspected the girls were being sexually abused, Maria asked Jane Doe 1 and Jane Doe 2 if defendant had touched the girls inappropriately. Maria was a certified bank investigator but had no experience investigating child abuse. Both girls initially denied there had been any inappropriate touching. Maria sensed by the girls' quick response that they were afraid to admit being touched. Maria told the girls she had been molested when she was a girl and she did not tell anyone or get help. Maria added that she could not help the girls unless they told her what happened. After the girls told her defendant had touched them inappropriately, Maria talked to Jane Doe 1 and Jane Doe 2 separately.
Maria testified that Jane Doe 1 told her defendant removed her shirt, pinched her breast area, and tickled her. Jane Doe 2 told Maria defendant touched her with his mouth. Maria did not ask them for more details. She told the girls that what happened was not their fault and she would talk to their mother about it.
When Monique got home from work, Maria told Monique the girls said that defendant had been touching them. Monique was shocked and angry. Monique called defendant and asked him if what the girls had said was true. Defendant denied he had molested the girls and claimed Maria had put ideas in the girls' heads. Monique asked the girls if what they had told Maria was true. The girls said it was true. Jane Doe 1 and Jane Doe 2 both said defendant had "touched" them. Monique did not get any additional details as to what the girls meant by being "touched."
The next day (September 7, 2007) Maria called defendant again. He said he tickled Jane Doe 2 but never with her shirt off. Defendant denied taking the girls into his bedroom and closing the door. Defendant said he might have accidentally touched the girls, but not with sexual intent. He suggested the girls might have taken it wrong.
On September 8, 2007, Monique and Maria went to the police station and filed charges against defendant. Monique and Maria told Officer Blair what the girls had told them.
Jane Doe 1
On September 13, 2007, the girls were interviewed by Vera Diaz (Diaz) of the Riverside County Assessment Team (RCAT). There were inconsistencies in the girls' interview statements and trial testimony. During Jane Doe 1's interview, she stated that when she was nine years old, defendant bit and licked her three times in defendant's bedroom and once in the living room. When Jane Doe 1 was in her bedroom watching television, defendant came in and told her to go to his room and lie down with him. He carried her there. When Jane Doe 1 was in his room, defendant told her to take off her shirt. She said she did not want to. Then defendant pulled off her shirt, pushed her down on the bed, and started biting her. It hurt. Jane Doe 1 told defendant to stop. Defendant said no. When Monique came home and started to open the bedroom door, defendant told Jane Doe 1 to go back to her room. Jane Doe 1 did not tell anyone what defendant had done because she was scared and thought no one would believe her. Defendant did not threaten her.
On other subsequent occasions, defendant took naps with Jane Doe 1 in her bedroom or defendant's bedroom or in the living room. He would tell her to lie down. She told him she did not want to. Defendant then pulled her over to him and started biting her. Jane Doe 1 resisted by kicking defendant. Defendant bit her on her body where a two-piece bathing suit does not cover her.
At trial, Jane Doe 1 testified that on two occasions defendant made her "uncomfortable." During the first incident, when she was in fifth grade, defendant was watching television in her bedroom. Defendant walked in and touched her breasts. He lay down next to her, took off her shirt, and bit and licked one of her breasts and her stomach. Jane Doe 1 told defendant to stop but he ignored her. Defendant then picked up Jane Doe 1 and took her to his bedroom, closing the door. Jane Doe 1 told defendant to stop but he continued licking and biting her breast and stomach.
The second incident occurred a week later while Jane Doe 1 was watching television on the living room couch. Defendant sat down next to Jane Doe 1, took off her shirt, and bit and licked her breast and stomach. Jane Doe 1 told defendant to stop. Defendant ignored her. Jane Doe 1 did not tell anyone what occurred. After the second incident, defendant told Jane Doe 1 he would kill her mother if she told. Jane Doe 1 claimed she and Jane Doe 2 did not discuss being molested by defendant with each other.
Jane Doe 2
Jane Doe 2 stated during her RCAT interview that when she was eight years old, defendant squeezed the side of her buttocks. When she tried to move, he told her to stand still. Jane Doe 2 told defendant to stop and to leave her alone, but he would not listen. Jane Doe 2 initially said defendant held her down while touching her while she lay on defendant's bed. Later she said it happened when defendant grabbed her hand and made her stand in defendant's bedroom, against the wall, by the bathroom. He touched her vaginal area, where she went "pee," and her "bottom." He touched her "where [her] poop comes out" three times and bottom one time. He would stare at her "private" and "mess with it" on the outside with his hand. Jane Doe 2 also felt defendant's hand entering her. Later, it stung when she went to the bathroom.
Jane Doe 2 said defendant only touched her with his hand. He touched her on the bottom nine times when she was eight. Jane Doe 2 later said it happened four times but then explained it happened every time Monique went to work for about three months. Jane Doe 2 further stated during her interview that, when defendant took her into his room and touched her, he closed the blinds, turned off the lights, and locked the door. Jane Doe 1 watched underneath the bedroom door. Defendant told Jane Doe 2 that if she told her mother, defendant would do something more to Jane Doe 2. Jane Doe 2 did not know what that meant. Jane Doe 2 first started talking to Jane Doe 1 about defendant's lewd acts right after defendant first molested Jane Doe 1.
Jane Doe 2 testified at trial that when she was eight or nine years old, defendant took her to defendant's bedroom and took off her shorts and underwear. While on the bed, defendant touched her with his hands and mouth "where she peed." She tried to get up but defendant held her down with his hand. He did this again the next day and several more times for five or six months.
Defendant's Statements
On September 18, 2007, sheriff's detective Michael Portillo (Portillo) assisted Monique with making a pretext telephone call to defendant. Defendant admitted pinching the girls' buttocks and biting their bellybuttons while roughhousing and tickling them. He licked their stomachs and bit their thighs, but not for a sexual purpose. He denied touching their "privates."
On October 18, 2007, Sheriff's Detectives Portillo and Damon Devine (Devine) located defendant at a hotel in San Diego and took defendant into custody. While driving him to the Jurupa Valley station, they discussed God with defendant. Upon defendant's arrival at the station, defendant waived his Miranda rights and was interviewed. During defendant's recorded statement, he admitted touching the girls inappropriately while roughhousing and tickling them. He claimed he never touched them with any sexual intent and apologized for touching them. He admitted tickling Jane Doe 2 on the bed, pulling her pants and underwear down, and putting his mouth on her vaginal area. He also lifted up her shirt and kissed her thighs and stomach. Defendant claimed he did this only once. Defendant acknowledged what he did was wrong.
III
DENIAL OF DEFENDANT'S PITCHESS MOTION
Defendant contends the trial court violated his state and federal constitutional rights to due process and a fair trial by denying his Pitchess motion. Prior to trial, defendant filed a Pitchess motion requesting discovery of Portillo's and Devine's personnel records, including statements, complaints, and reports of discipline, showing that Portillo and Devine had engaged in improper tactics, coercion and/or dishonesty.
Defendant's Pitchess motion was supported by defense attorney Josh Solberg's (Solberg) declaration stating that Portillo and Devine travelled from Riverside County to San Diego County to arrest defendant on October 18, 2007. While transporting defendant back to Riverside, Portillo questioned defendant about the girls' allegations against defendant. Neither Portillo nor Devine prepared a report summarizing their interrogation. Later, defendant revealed during his recorded statement that Portillo had questioned him during his ride to Riverside and defendant had said he was a devout Christian. Solberg claimed Portillo used defendant's Christian beliefs to coerce defendant into making inculpatory statements during his recorded statement. Portillo also suggested, verbally and by his physically aggressive posture, that Portillo wanted to beat defendant during defendant's recorded interview.
According to Solberg's declaration, Devine participated in questioning defendant. Devine also did not provide a report of the interrogation which occurred during defendant's transport to Riverside. Solberg claimed that, during defendant's recorded interview, Portillo played the role of a sympathetic confessor and Devine, who was present only during the latter portion of the interrogation, stated his disdain for defendant. Devine indicated that he believed defendant was a liar and that defendant's Christian faith was "bullshit."
Defendant argued in his Pitchess motion that Portillo and Devine engaged in unlawfully coercive methods to obtain defendant's confession, including playing "good cop-bad cop" and using Portillo's knowledge of defendant's religious beliefs.
The trial court denied defendant's Pitchess motion, concluding that "the allegation that the confession is coercive is on a completely taped interview" and "any relevance of the request for discovery would be so remote as to be non-existent." The court added that "there is so little that would be directly relevant to the inquiry as to make it, quite frankly, irrelevant and a fishing expedition." Defendant argued the recorded interview did not include all of the coercive circumstances since there was no report or recording of defendant's conversation while he was transported to Riverside. The trial court nevertheless concluded that "the coercion that was being detailed in the declaration or alleged coercion was what happened on tape at the time when he was interviewed on tape" and "[t]here was nothing in the declaration that I viewed as being an allegation of a conversation of coercion that could possibly be considered coercion that was not taped . . . . All allegations of coercion were set forth in the tape in the interview room according to your declaration." In addition, there was nothing in Solberg's supporting declaration regarding Devine saying or doing anything coercive while transporting defendant to the station.
A. Applicable Law
A defendant is entitled to discovery of a police officer's confidential personnel records if those files contain information that is potentially relevant to the defense. (Pitchess, supra, 11 Cal.3d at pp. 537-538; Evid. Code, §§ 1043-1045.) The discovery procedure has two steps. First, a defendant must file a motion seeking such records, with supporting affidavits "showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation." (Evid. Code, § 1043, subd. (b)(3).) If good cause is shown, the trial court then reviews the records in camera to determine whether any of them are relevant to the intended defense. (Evid. Code, § 1045, subd. (b).)
The threshold for Pitchess discovery is relatively low, that is, the threshold for having the trial court conduct an in camera review. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83-84.) The general standard of review is "abuse of discretion." (People v. Memro (1995) 11 Cal.4th 786, 827.) The defendant must provide a "specific" or "plausible" "factual scenario" demonstrating good cause for the type of record requested. (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1017.)
Good cause requires the defendant to establish a logical link between his proposed defense and the pending charge as well as a showing how the discovery would support such a defense or how it would impeach the officer's version of events. Moreover, the information discoverable under a Pitchess motion is limited to "instances of officer misconduct related to the misconduct asserted by the defendant." (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021.) That misconduct must be specifically described. (Id. at pp. 1026-1027.)
B. Discussion
Defendant failed to provide a factually specific and tailored declaration establishing the materiality of the officers' personnel records. Defense counsel's declaration simply relied on conclusionary claims that Portillo and Devine used coercive tactics to obtain defendant's confession. The alleged coercive tactics included an unrecorded conversation with defendant regarding his religious beliefs while he was transported to the police station. Defendant argues this conversation led to the officers' use of defendant's religious beliefs to coerce defendant's recorded confession at the police station.
Assuming defendant discussed his religious beliefs while on his way to the station, this does not constitute good cause for discovery of Portillo and Devine's personnel records. As to Devine, there is nothing showing that Devine did anything warranting discovery of his records. His involvement consisted of merely being present during defendant's ride to the station. As to Portillo's conduct, Solberg's declaration is not sufficiently factual and does not show any inappropriate coercive tactics or conduct. Defendant did not meet the relatively low threshold required to warrant an in camera review of the officers' personnel files. There was no transcript of the recorded statement attached to the motion and no specific showing of the use of any unlawful coercive tactics during defendant's trip to the police station. Because there is no evidence that defendant's confession was the product of Portillo and Devine using unlawful, coercive tactics, the trial court did not abuse its discretion in concluding there was an insufficient showing of good cause to warrant discovery of the officers' personnel files.
IV
VOLUNTARINESS OF DEFENDANT'S RECORDED STATEMENT
Defendant contends the trial court erred in refusing to allow an evidentiary hearing to establish that defendant's recorded statement was involuntary and coerced. Defendant claims he did not have a full opportunity to fairly litigate his suppression motion because the trial court refused to allow an evidentiary hearing during which he could question and confront detectives Portillo and Devine about their conversation with defendant while transporting him to the station. Defendant claims an evidentiary hearing on the circumstances leading to his recorded statement would have established that the officers used coercive tactics, including psychological coercion, promises of advantage, and religion to "soften up" defendant for his recorded statement, during which he confessed to molesting the girls. Defendant argues the officers impliedly threatened defendant that, because he had fallen short of the glory of God, he was not "salvageable" unless he confessed.
Defendant was tried three times, with the first and second trials ending in mistrials. Before the first trial, defendant filed a motion to suppress his recorded statement to the police, on the ground his statement was involuntary and the result of religious coercion. The trial court denied the motion, noting that the recorded statement reflected that defendant initiated the religious discussions. In addition, most of the officers' comments regarding religion were in response to defendant's statements and/or were innocuous "passing conversation about religion." The court added that, if there were any inappropriate statements made by the officers, the statements were at the end of defendant's interview, after which defendant made no incriminating statements.
The motion was filed on January 29, 2009, and is not included in the clerk's transcript on appeal.
Before defendant's second trial, defendant resubmitted his motion to suppress his recorded statement, which was denied. The trial court denied defendant's request for an evidentiary hearing to determine if defendant's recorded statement was a coerced product of the unrecorded conversation during defendant's ride to the police station. The trial court noted that the recorded statement indicated there was some discussion of defendant's religious beliefs during his ride to the station but the officers never questioned defendant during his recorded statement about anything discussed during the ride.
Before the third and final trial, the trial court considered and denied defendant's motion to suppress his recorded statement and his request for an evidentiary hearing under Evidence Code section 402 (402 hearing). During the hearing, defense counsel argued the 402 hearing was necessary to allow defendant to question Portillo and Devine about their conversation with defendant during his two to three-hour ride to the police station. The trial court again concluded there was nothing in the recorded statement indicating that the officers used coercive tactics during defendant's ride to the police station.
A. Applicable Law
"An involuntary confession is inadmissible under the due process clauses of both the Fourteenth Amendment to the federal Constitution [citation] as well as article I, sections 7 and 15 of the California Constitution [citation]." (People v. Weaver (2001) 26 Cal.4th 876, 920.) When a defendant claims his confession was involuntary, the People have the burden to show, by a preponderance of the evidence, that the statements were made voluntarily. (People v. Jones (1998) 17 Cal.4th 279, 296.) Under both state and federal law, the courts apply a totality of circumstances test to determine voluntariness. (People v. Haley (2004) 34 Cal.4th 283, 298; People v. Bradford (1997) 14 Cal.4th 1005, 1041.)
"A finding of coercive police activity is a prerequisite for a finding that a confession was involuntary under the due process clauses of the federal or state Constitution. [Citations.]" (People v. Clark (1993) 5 Cal.4th 950, 988.) Police are prohibited from using only those psychological ploys that, under all the circumstances, "'are so coercive that they tend to produce a statement that is both involuntary and unreliable.'" (People v. Jones, supra, 17 Cal.4th at p. 298, quoting People v. Ray (1996) 13 Cal.4th 313, 340.)
"In determining whether a confession was voluntary, '[t]he question is whether defendant's choice to confess was not "essentially free" because his will was overborne.' [Citation.]" (People v. Massie (1998) 19 Cal.4th 550, 576, quoting People v. Memro, supra, 11 Cal.4th at p. 827, quoting Schneckloth v. Bustamonte (1973) 412 U.S. 218, 225; see also People v. Holloway (2004) 33 Cal.4th 96, 114.)
On appeal, "'the trial court's findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court's finding as to voluntariness of the confession is subject to independent review.' [Citation.]" (People v. Panah (2005) 35 Cal.4th 395, 471.) Although this issue is independently reviewed on appeal, appellate courts "'"'give great weight to the considered conclusions'"'" of lower courts. (People v. Whitson (1998) 17 Cal.4th 229, 248; see also People v. Wash (1993) 6 Cal.4th 215, 235-236.)
B. Discussion
Defendant argues the transcript of his recorded statement shows that the officers used religion to coerce him to confess during his recorded statement. The police may not use a suspect's religion "as a tool to extract admissions of guilt." (People v. Adams (1983) 143 Cal.App.3d 970, 992, fn. 22, disapproved on other grounds in People v. Hill (1992) 3 Cal.4th 959, 995, fn. 3; accord People v. Kelly (1990) 51 Cal.3d 931, 953; People v. Montano (1991) 226 Cal.App.3d 914, 935.) In Adams, the court found a confession to be involuntary where the interrogating officer attended the same church as the suspect and, during interrogation of the suspect, extracted his confession through blatant appeals to the suspect's Christianity, the Book of Romans, God's law, sin, guilt, and "reprobate mind." (Adams, at pp. 979-980, fn. 8.) On the other hand, a confession is not involuntary simply because it is motivated by religion, if the police have done nothing to exploit the suspect's religious beliefs. (Colorado v. Connelly (1986) 479 U.S. 157, 161, 167 [finding confession voluntary where suspect confessed to murder because the "voice of God" told him to].)
Defendant asserts that during his recorded interview, Portillo and defendant made numerous references to God and defendant's need to repent and confess in order for defendant to be forgiven for his sins. In addition, Devine stated during defendant's recorded statement: "I can't after that long ass car ride, all that born again bullshit you were spitting, and I gotta sit back there and listen to you play these games."
Defendant argues that statements made regarding religion during his recorded statement indicate that religion was discussed during his ride to the station, and religion was used to coerce his confession during his recorded interview. Defendant further argues that, under such circumstances, the court should have granted his request for a 402 hearing to question the officers as to what was stated during defendant's ride to the station.
As the trial court found on three separate occasions, we conclude there is no evidence that the officers made any improper coercive statements regarding religion during defendant's ride to the station. Even though Devine indicated defendant discussed at length his religious beliefs while riding to the station, there is no evidence the officers used religion as a coercive tactic or that there was any causative nexus between the discussion in the car and defendant's later recorded confession. Under such circumstances, the trial court reasonably rejected defendant's request for a 402 hearing for purposes of questioning Devine and Portillo regarding their conversation during the ride to the police station. Without any specific evidence that defendant's recorded confession was the product of unlawful coercive tactics committed on the way to the station, a 402 hearing would have been merely an inappropriate fishing expedition.
Defendant further argues that Portillo suggested during the recorded interview that, if defendant confessed, defendant would receive favorable treatment by the judicial system. This contention is based on Portillo's following statements: ". . . But how are they gonna deal with you? I don't know. Are they gonna look at you like this guy can be salvaged, he admitted he screwed up. I don't think it's gonna happen again. I don't know, I'm not in their heads. I don't know what they're going to say. Or they're gonna say, you know what, this piece of shit, he's hiding it. I know a lot more shit happened, and he's not ready to be out there and dealt with, with counseling and whatever else. Do you understand what I'm saying?" In addition, when defendant asked Portillo if he could bail himself out of jail, Portillo said, "You can, you can bail out if you come up with it. You have a possibility of getting O/R'd, um, uh your own recognizances [sic]. You have a possibility of getting federal[ly] kicked."
These statements by Portillo do not show any actual or implied promise of favorable treatment. Portillo merely indicates he did not know how defendant's circumstances would be viewed and suggests defendant should tell him the truth. Portillo also answers defendant's question about bail. Portillo's statements regarding bail occurred near the end of defendant's recorded interview, after defendant had already incriminated himself.
Since the recorded statement does not support a reasonable finding that the officers improperly used, or may have used, religion or other improper tactics to coerce defendant's incriminating statements, the trial court did not abuse its discretion in denying defendant's request for a 402 hearing and motion to suppress. Defendant had a full and fair opportunity to litigate his suppression motion (People v. Smithson (2000) 79 Cal.App.4th 480, 496) and, in doing so, failed to refute the prosecution's showing that defendant's confession was uncoerced and voluntary.
V
UNREDACTED TAPE
Defendant contends the prosecution's inadvertent playing for the jury an unredacted recording, in which defendant said he had been to prison for using drugs, was prejudicial and violated his constitutional rights to due process and a fair trial. Defendant argues that the unredacted recording prejudicially discredits his defense, in which he claims he was not a criminal sex offender but, rather, was a good stepfather who inadvertently and inappropriately touched his stepdaughters while playfully tickling and roughhousing with them, without any sexual intent.
A. Background Facts
During the first trial, the court ordered redaction from defendant's recorded interview all references to defendant's past convictions and incarceration. Defendant moved for a mistrial after the prosecution played for the jury an unredacted recording of defendant's interview. The court granted mistrial, finding that the prosecutor's inadvertent error was prejudicial.
Before the third trial, the trial court again ordered redaction of all references to defendant's past convictions and incarceration. During the third trial, the prosecution played for the jury a recording that inadvertently was not fully redacted. The recording was of a pretext telephone conversation on September 18, 2007, between defendant and Monique. Out of the presence of the jury, the court stated that the court heard something in the tape in which defendant stated "„[g]oing to prison for my drug usage.'" The court said it did not see this statement in the transcript given to the jury. The court added, "[i]t sounded to me like it was a quick sentence, but it was there. That's all I heard."
Defense counsel moved for a mistrial, noting that the prosecution had played an unredacted tape in the first trial and it resulted in a mistrial. Defense counsel acknowledge that the unredacted statement heard by the jury in the first trial was different from that heard in the instant trial. In the first trial, the recording was defendant's police interview, during which Devine stated defendant had been to prison before and was a convicted felon. The prosecutor apologized for the error and argued that the brief unredacted statement in the instant trial was quite different from the unredacted statements made in the previous trial. The prosecutor argued the error was not prejudicial since the unredacted statement was very brief and the parties stipulated to telling the jury that defendant had never been convicted of a sex offense.
After taking a recess to consider whether to grant a mistrial, the court denied the motion. The court explained that the situation was significantly different from what occurred in the first trial. In the instant trial, the unredacted statement was not in the transcript given to the jurors, the statement was made by defendant rather than an officer, and the recording was of defendant explaining he was unable to be with his other children because he had been to prison for using drugs. The court believed it could cure any negative implications by telling the jurors not to consider the statement or, alternatively, the court could simply ignore the statement. In addition, the statement could even be considered a mitigating statement, explaining why defendant could not see his other children. In addition, the court could read to the jury the stipulated statement that defendant had never been convicted of a sex offense.
Defense counsel stated that, if the trial court was not going to grant his request for a mistrial, he did not want the court to comment on the unredacted statement. Defense counsel also requested the court not to read until later in the trial the stipulation regarding defendant not having been convicted of any sex crimes. The court agreed that mentioning the error and reading the stipulation immediately upon resuming the trial would draw attention to the unredacted statement. The court ordered that the tape and transcript provided to the jury be fully redacted as to any mention of defendant's criminal convictions and incarceration.
B. Discussion
A trial court's ruling denying a mistrial is reviewed for an abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225, 283.) A motion for mistrial "should be granted only when a party's chances of receiving a fair trial have been irreparably damaged." (Ibid.)
Defendant based his mistrial motion on the prosecution inadvertently playing an unredacted recording revealing that defendant went to prison for drug use. "'When, as in this case, a jury innocently considers evidence it was inadvertently given, there is no misconduct.' [Citation.] Rather, all that appears is ordinary error. . . . [¶] . . . [W]ith ordinary error, prejudice must be shown and reversal is not required unless there is a reasonable probability that an outcome more favorable to the defendant would have resulted." (People v. Clair (1992) 2 Cal.4th 629, 668; see also People v. Jackson (1996) 13 Cal.4th 1164, 1213 -1214.)
Here, the error was harmless error. There was strong evidence supporting defendant's convictions and no reasonable probability of a more favorable outcome. Passing reference to defendant going to prison for drug use was overshadowed by considerable evidence against defendant, including the girls' statements describing the charged crimes to family members, to Diaz, and at trial. Family members also testified to the girls' change in behavior around the time of the molestation and reluctance to be around defendant. Jane Doe 2 described vaginal pain and stinging, which were physical sensations consistent with being molested. In addition, contrary to defendant's claim that he was a good stepfather who harmlessly touched the girls while roughhousing and playing with them, defendant admitted during his recorded statement that he placed his mouth on Jane Doe 2's "vagina," pulled down Jane Doe 2's shorts, grabbed and pinched her buttocks, and lifted Jane Doe 1's shirt. Defendant repeatedly acknowledged his conduct was wrong.
Defendant probably meant he put his mouth on Jane Doe 2's genital area since the vagina is an internal organ, defined as "a canal that leads from the uterus of a female mammal to the external orifice of the genital canal." (Webster's 3d New Internal Dict. (1993) p. 2528.)
In addition, there was no other reference during the trial to defendant going to prison, and the drug use offense was unrelated to, and entirely different from, the charged crimes of child molestation. Under such circumstances, in which there was strong evidence supporting defendant's convictions, defendant's brief statement he went to prison for drug use did not so infect the trial with such unfairness as to require mistrial and reversal on appeal.
In an analogous situation in People v. Avila (2006) 38 Cal.4th 491, the Supreme Court held that the trial court did not abuse its discretion in denying a mistrial motion after a prosecution witness testified that a codefendant had told him to "keep cool" about the crimes because the defendant had recently been released from prison, was crazy, and would kill him. (Id. at p. 571.) Before testifying, the witness was admonished not to refer to criminal convictions. (Ibid.) The defendant moved for a mistrial based on the reference to his prison term. (Id. at p. 572.) The trial court found that the evidence against the defendant was strong and the reference did not prejudice him. (Ibid.) The statement about prison was stricken and the jury was admonished not to consider it for any purpose. (Id. at pp. 572-573.) The reviewing court found no abuse of discretion and concluded, "As for the portion of Rodriguez's testimony referring to defendant recently having been in prison, the court admonished the jury not to consider it for any purpose. . . . We presume the jury followed the court's instructions." (Id. at p. 574.)
Here, defense counsel requested the court not to attempt to cure the error, because doing so would accentuate the inappropriate statement. As in People v. Avila, supra, 38 Cal.4th 491, the trial court did not abuse its discretion in denying defendant's mistrial motion after the jury heard evidence that defendant had been in prison. The Supreme Court has repeatedly held that the one-time-only use of similarly prejudicial language does not necessarily require a mistrial. (People v. Valdez (2004) 32 Cal.4th 73, 124, 128 [because witness's reference to the defendant having been at "'Chino Institute' was brief and isolated, the trial court properly denied the motion for mistrial"]; People v. Bolden (2002) 29 Cal.4th 515, 554-555 [witness's reference to obtaining the defendant's address from "parole office" was "not significant in the context of the entire guilt trial"].)
Given the strong evidence supporting defendant's convictions, it was not reasonably probable the outcome of the verdict would have been more favorable to defendant had the unredacted recording not been heard by the jury. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Harris (1994) 22 Cal.App.4th 1575, 1581.) The trial court reasonably concluded that the brief reference to defendant's incarceration for drug use did not irreparably damage defendant's chances of receiving a fair trial, and it thus did not abuse its discretion by denying the mistrial motion.
Even if federal constitutional error is involved and the burden shifts to the state "to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained" (Chapman v. California (1967) 386 U.S. 18, 24), there was no prejudicial error. Any reasonable jury would have reached the same verdict even in the absence of defendant's brief recorded statement he had been incarcerated for using drugs. (People v. Bolton (1979) 23 Cal.3d 208, 214-215.)
VI
FAILURE TO INSTRUCT ON LESSER INCLUDED OFFENSE
Defendant challenges his convictions for committing forcible lewd acts (counts 1 and 6 through 15; § 288, subd. (b)). Defendant contends the trial court erred by denying his request to instruct the jury on the lesser included offense of committing a nonforcible lewd act (§ 288, subd. (a)). Defendant argues there was evidence supporting a reasonable finding that defendant did not use force or duress when committing the lewd acts upon Jane Doe 1 and Jane Doe 2.
The trial court has a sua sponte duty to instruct on lesser included offenses if there is substantial evidence which would support a determination that the defendant is guilty only of the lesser offense. (People v. Parson (2008) 44 Cal.4th 332, 349.) An uncharged offense is included in a greater charged offense if either (1) the greater offense, as defined by statute, cannot be committed without also committing the lesser (the elements test), or (2) the language of the accusatory pleading encompasses all the elements of the lesser offense (the accusatory pleading test). (Ibid.) Under the elements test, a court determines whether, as a matter of law, the statutory definition of the greater offense necessarily includes the lesser offense. (Ibid.)
Section 288 prohibits lewd and lascivious acts with a child under 14 years of age. Section 288, subdivision (a), is a lesser or necessarily included offense of forcible lewd conduct prohibited by subdivision (b). (People v. Ward (1986) 188 Cal.App.3d 459, 472; People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321-1322.) (§ 288, subds. (a), (b)(1).) The only difference between the crimes of forcible and nonforcible lewd conduct is that forcible lewd conduct requires a finding of the use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. (§ 288, subds. (a), (b)(1).)
Even though a section 288, subdivision (a) offense is a lesser included offense of a section 288, subdivision (b) offense, the trial court is not necessarily required to instruct on the lesser offense. "A criminal defendant is entitled to an instruction on a lesser included offense only if [citation] 'there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense' [citation] but not the lesser. [Citations.]" (People v. Memro, supra, 11 Cal.4th at p. 871.)
As our Supreme Court stated in People v. Hughes (2002) 27 Cal.4th 287, 365: "instructing on lesser included offenses shown by the evidence avoids forcing the jury into an 'unwarranted all-or-nothing choice'" that could lead to an improper conviction. (Ibid.) The instruction need not be given if there is no evidence that the offense was less than the offense charged. (People v. Breverman (1998) 19 Cal.4th 142, 154.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is '"evidence from which a jury composed of reasonable [persons] could . . . conclude[]"' that the lesser offense, but not the greater, was committed. [Citations.]" (Id. at p. 162.) We apply a de novo standard of review to the trial court's failure to instruct on a lesser included offense. (People v. Licas (2007) 41 Cal.4th 362, 366.)
Here, the trial court did not abuse its discretion in rejecting instruction on nonforcible lewd acts. There was no evidence that defendant committed the alleged lewd acts upon the girls in the absence of force and/or duress. With regard to count 1, Jane Doe 1 stated during her RCAT interview that, when she was in her bedroom watching television, defendant came in and told her to go to his room and lie down with him. He carried her there. When Jane Doe 1 was in his room defendant told her to take off her shirt. When she objected, defendant pulled her shirt off, pushed her down on the bed, and started biting her. Jane Doe 1 told defendant to stop. Defendant refused.
Jane Doe 1 also testified that during the first incident, which is the basis of count 1, she told defendant to stop touching, biting, and licking her breast but he ignored her. Defendant then picked up Jane Doe 1 and took her to his bedroom, closing the door. Jane Doe 1 told defendant again to stop but he continued licking and biting her breast and stomach.
As to counts 5 through 16, Jane Doe 2 stated during her RCAT interview that when defendant squeezed her buttocks and she tried to move away, defendant told her to stand still. Jane Doe 2 told defendant to stop and to leave her alone, but he would not listen. Jane Doe 2 initially said defendant held her down while touching her when she lay on his bed. Later, she said it happened when defendant grabbed her hand and made her stand against the wall. Jane Doe 2 further stated that, when defendant took her into his room and touched her, he closed the blinds, turned off the lights, and locked the door. Defendant told Jane Doe 2 that if she told her mother, defendant would "do something more" to her. She did not know what he would do. Jane Doe 2 testified that, when defendant took her to his bedroom and took off her shorts and underwear, and touched her, she tried to get up but defendant held her down with his hand. He did this again the next day and several more times for several months.
Although Jane Doe 1's and Jane Doe 2's statements may have been inconsistent in some respects, the girls consistently stated that they resisted, defendant ignored their protests, and defendant used force to commit lewd acts upon them. There was no evidence to the contrary. There was also evidence of duress. Defendant was the girls' stepfather and caregiver. The girls were young (eight and nine years old). Defendant molested the girls when they were alone with him, often in his bedroom with the door closed and locked. Jane Doe 1 stated she was afraid to tell anyone what defendant had done. Defendant ordered the girls to comply with his demands and, when they objected or resisted, he forcefully continued molesting them. In addition to defendant's use of force, the disparity in defendant and the girls' age and size, along with defendant's position of authority as their stepfather, provided strong evidence of duress. As no evidence was presented to the jury that could have absolved defendant of the greater offense of forcible lewd conduct, but not the lesser offense, the trial court did not abuse its discretion refusing to instruct the jury on the lesser offense of nonforcible lewd conduct. (People v. Memro, supra, 11 Cal.4th at p. 871.)
Furthermore, even if there was error in not instructing on nonforcible lewd conduct, such error was harmless (People v. Watson, supra, 46 Cal.2d at p. 836). It is not reasonably probable that the jury would have found defendant guilty of the lesser offense of nonforcible lewd conduct since there was strong evidence defendant used force and duress in committing lewd acts upon the girls.
VII
CONTINUOUS SEXUAL ABUSE UNDER SECTION 288.5
Defendant contends the People should have prosecuted him for a single count of committing a continuing course of sexual abuse against Jane Doe 2 under section 288.5, instead of charging him with 10 separate counts of violating section 288, subdivision (b)(1) (counts 6 through 15). Defendant argues that the more specific statute, section 288.5, precluded defendant's multiple convictions under section 288 for committing individual lewd acts against Jane Doe 2.
Under section 288.5 subdivision (a): "Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years." Section 288.5, subdivision (b), provides: "To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number."
The overall purpose and intent of the Legislature in enacting section 288.5 was to remedy a recurrent problem in the prosecution of resident child molesters. (People v. Johnson (2002) 28 Cal.4th 240, 242.) "Because of the age of the victim and the repeated and continual nature of the offenses, trial testimony often failed to identify with specificity the date or place of particular charged acts, and the defense's ability to respond to specific charges arguably was impaired. A line of Court of Appeal decisions beginning with People v. Van Hoek (1988) 200 Cal.App.3d 811 . . . reversed convictions obtained through the use of such 'generic' testimony, concluding that the inability to effectively defend against such charges deprived defendants of due process and that such proceedings improperly compromised the constitutional guarantee of jury unanimity. [Citations.] [¶] The Legislature responded to the Van Hoek line of cases by enacting section 288.5. (Stats.1989, ch. 1402, § 1, p. 6138.) In a prosecution under the statute, the trier of fact need unanimously agree only that the requisite number of specified sexual acts occurred, not which acts constituted the requisite number. [Citation.]" (Johnson, at pp. 242-243.) Section 288.5 thus was intended to assist the prosecution in obtaining convictions against resident child molesters.
When, as in the instant case, the prosecution does not face any difficulty in establishing appellant's guilt for a particular lewd act, nothing in section 288.5 prevents the prosecution from obtaining a conviction under section 288. The court in People v. Hord (1993) 15 Cal.App.4th 711, expressly rejected the contention that liability under section 288.5 displaces liability under section 288 when both offenses can be charged: "The Legislature's intent in passing section 288.5 was not to enact a specific statute to apply in lieu of a general statute [section 288]. The intent was to enact a statute for an area which the Legislature believed was not covered by any other law." (Hord, at p. 720, fn. omitted.) Defendant urges this court to disregard Hord as wrongly decided. But other courts have made the same findings as Hord. (See, e.g., People v. Johnson (1995) 40 Cal.App.4th 24, 26 ["[t]he People, however, are not required to prosecute under section 288.5 in order to gain a conviction against a resident child molester even when the evidence is based on 'generic testimony'"]; People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1581 ["[s]ection 288.5 provides a vehicle for prosecuting resident child molesters if specific acts of sexual abuse at a particular time cannot be proven. [Citations.] It is not, nor was it intended to be, a limit on prosecutorial discretion in determining how a particular defendant is to be charged"]; People v. Torres (2002) 102 Cal.App.4th 1053, 1058 ["In People v. Hord (1993) 15 Cal.App.4th 711, 720-721, the court specifically rejected the contention that section 288.5 is a special statute that precludes prosecution for other generally applicable sexual offenses"].) We see no reason to depart from these cases.
Furthermore, here there was sufficient evidence establishing 10 separate forcible lewd acts committed by defendant against Jane Doe 2. Jane Doe 2 stated during her RCAT interview that defendant touched her on the bottom nine times when she was eight. Jane Doe 2 later said it happened four times but then explained it happened every time Monique went to work for about three months. Jane Doe 2 testified at trial that when she was eight or nine years old, defendant took her to his bedroom and took off her shorts and underwear. While on the bed, defendant touched her with his hands and mouth "where she peed." She tried to get up but defendant held her down with his hand. Jane Doe 2 stated he did this again the next day and several more times for five or six months. This evidence was sufficient to support the jury's findings that defendant committed forcible lewd acts against Jane Doe 2 on at least 10 separate occasions.
There was no error in charging and convicting defendant of 10 separate counts of committing forcible lewd acts against Jane Doe 2 in violation of section 288, subdivision (b), rather than prosecuting defendant for a single violation of section 288.5.
VIII
CONSECUTIVE SENTENCING
Defendant contends the trial court incorrectly assumed it did not have discretion to impose sentencing on count 2 concurrently. Defendant bases this assumption on the court's statement that it believed the intent of the Legislature was to run sentences on sex crimes consecutively. The People argue defendant forfeited this objection by not raising it in the trial court and, even if not forfeited, defendant misconstrues the trial court's statement. The People assert that the trial court indicated it understood it had discretion not to impose sentencing on count 2 concurrently. We conclude that, regardless of whether defendant forfeited his objection, there was no sentencing error. Defendant fails to refute the presumption that the trial court understood it had discretion to impose concurrent sentencing on count 2 and nevertheless chose to sentence defendant consecutively.
During defendant's sentencing hearing, the trial court initially stated it intended to sentence defendant to 185 years to life in prison. The court calculated this term based on imposing consecutive 15 years to life sentences on counts 1 and 6 through 15 (§ 288, subd. (b); forcible lewd conduct) under section 667.61, subdivisions (b), (c) & (e); imposing a consecutive 15 years to life sentence on count 2 (§ 288, subd. (a); nonforcible lewd conduct); and imposing an additional five-year term for defendant's prior serious felony conviction (§ 667, subd. (a)(1)).
The parties agreed during sentencing and agree on appeal that under section 667.61, the court is required to impose consecutive sentencing as to each section 288, subdivision (b) conviction. The trial court, however, has discretion to impose consecutive or concurrent sentencing as to count 2, defendant's sole conviction for violating section 288, subdivision (a). Defense counsel stated during sentencing: "I would agree with the Court that to all of the 288(b) counts, that being all of the counts that he was convicted of, but for Count [2] which is 288(a) under the law should be run consecutive full term, but I do not believe that it is clear. [Italics added.]" Defense counsel added that the court should impose a 15 year to life term on count 1 and a consecutive low, mid or full term, doubled, on each of the remaining section 288, subdivision (b) counts.
Defense counsel inadvertently referred to count 2 as count 10. Shortly afterwards, it was clarified that defense counsel had intended to refer to count 2. The error was due to relying on the probation officer's erroneous reference to the section 288, subdivision (a) conviction as count 10, rather than count 2.
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In response to defense counsel's sentencing request, the trial court stated: "Well, okay, now I understand what you're saying to me. So I agree that is something the Court could consider, but I also - I do believe that the Court can run these counts consecutively. Also, I think that the intent of the [L]egislature on sex crimes is that they would be run full and consecutive. And - so I would be intending to do 15 to life and run them consecutively." The court accordingly sentenced defendant to a total term of 185 years to life.
The parties disagree as to how this court should construe the trial court's statements regarding sentencing defendant on count 2 (§ 288, subd. (a)). We acknowledge that the trial court's statements are ambiguous in this regard. Under such circumstances, we must presume the trial court understood the law regarding sentencing and appropriately exercised its discretion when imposing consecutive sentencing on count 2 (People v. Mosley (1997) 53 Cal.App.4th 489, 496, Evid. Code, § 664). Defendant has not rebutted this presumption.
Defendant argues that, if this court concludes he forfeited his challenge to consecutive sentencing on count 2 by not objecting in the trial court, this court should reverse the sentence based on ineffective assistance of counsel (IAC). Since we considered defendant's sentencing challenge on the merits and conclude there was no error, defendant's alternative IAC contention lacks merit as well.
IX
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Codrington
J.
We concur:
Hollenhorst
Acting P.J.
Richli
J.