Opinion
A150125
12-26-2017
THE PEOPLE, Plaintiff and Respondent, v. JAIME CASTROCONDE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-150731-8)
After sexually molesting Jane Doe on one occasion when she was nine years old, defendant Jaime Castroconde was charged with three counts of lewd acts upon a child under 14. A jury convicted him of two counts and acquitted him of the third, and the trial court sentenced him to three years in state prison. On appeal, Castroconde claims that the court erred by refusing to require the jury to make a special finding identifying the act relied upon to convict him of any count. He also claims that one of the acts relied upon by the prosecution, that he put a banana between Jane's legs, violated the corpus delicti rule because the only evidence it occurred was his statement to the police. We reject these claims and affirm.
The charges were brought under Penal Code section 288, subdivision (a).
I.
FACTS
A. The Molestation.
In April 2015, Castroconde, who was 38 years old, lived with his aunt in her Pittsburg home. Castroconde's cousin, Oscar A., also lived there with Jane's mother, who was his girlfriend, their one-year-old daughter, and Jane, who has a different father. Castroconde lived in a room attached to the garage, Oscar A. lived in a cottage on the property, and Jane, her mother, and her half sister lived in a bedroom inside the main house.
Around midnight on April 10, Jane's mother and Jane's half sister were in their bedroom watching a movie with Oscar A. Jane did not want to watch the movie, so her mother turned on the Disney Channel for her in one of the home's two living rooms. Jane, who was wearing zip-up, footed pajamas, sat on the smaller of two couches in the room. It was very dark, so Jane's mother turned on a light before going back to the bedroom.
Jane's mother testified that she left the bedroom door open, and Jane's half sister "was going back and forth playing, and she would run down the hallway with [Jane] and then she would come back to the [bed]room." About 10 or 15 minutes after Jane's mother had last been in the hallway, she noticed the bedroom door was closed. She opened the door and looked down the hallway to see that the living room was dark.
Jane's mother walked quickly down the hall and saw Jane standing in the living room with "this look in her eyes like she was doing something that she wasn't supposed to be doing." Castroconde was "slumped over" on the big couch and "wouldn't look at" Jane's mother, who "got this eerie feeling like something wasn't right." Jane's mother asked why the light was off, and Jane said Castroconde had turned it off. Castroconde did not respond and "kept his head down looking away from" Jane's mother.
Jane's mother testified that she told Jane it was time for bed, and the two returned to their bedroom. As Jane got in bed, Jane's mother asked what she and Castroconde had been doing. Jane said, "[N]othing," but she had her head down and seemed "antsy," prompting her mother to ask again. After Jane denied a second time that anything had happened, Jane's mother told her she did not want to talk to her any more until she was ready to tell the truth.
A minute or so passed, and Jane said, " 'Mom, I want to tell you something, but I think you're going to be mad at me.' " Jane's mother responded that she would not be mad. Indicating that she did not want Oscar A., who was lying down with his eyes closed, to hear, Jane whispered, " 'When [we] were in the living room [Castroconde] was humping me, and he was touching me on my private part.' "
Jane's mother immediately told Oscar A. that he needed to get up because Jane said Castroconde had done " 'inappropriate things' " to her. Oscar A. questioned whether Jane was telling the truth, and Jane's mother became "irate." She then told him that if he was not going to handle the situation, she was going to talk to Castroconde.
In a recording of a police interview played for the jury, Oscar A. explained that he had doubted Jane's honesty for two reasons. First, earlier that day, Jane told her mother that he had yelled at her when he had not. Second, a few days before, he had patted Jane's head and Jane "turned around, [stood] back[,] and said don't touch me," prompting Jane's mother to ask him whether he felt "guilty" and had problems "touching kids."
Jane's mother testified that she went back to the living room, but all the lights were off and Castroconde was gone. She then went through the backyard to Castroconde's room and began knocking on his door. Although she "stood there for a good ten minutes banging, calling his name," he did not respond. Oscar A., who had come outside, told her to call the police if she believed Castroconde had done something wrong. She then called 911. While they were waiting for the police to arrive, Jane told her mother that Castroconde "had set her on his lap and he lifted her leg up and touched her private part. She said he grabbed it."
Pittsburg police officers arrived at the house about 15 or 20 minutes later. One of the officers interviewed Jane's mother, and a body cam recording of the interview was played for the jury. Her statements were generally consistent with her testimony at trial, with the additional details that Jane initially said she had been "playing" with Castroconde by "tickling each[]other" and later said that, in addition to touching her "private parts," he had "cracked [her] knuckles on her toes" and had "sat [her] on his lap and hump[ed her]." After the officer took Jane's statement, which is discussed in more detail below, Castroconde was arrested.
B. Jane's Statements and Testimony.
1. Statement to the police.
A body cam recording of Jane's interview at the scene was also played for the jury. Jane said that while Castroconde was sitting on the big couch he "grabbed [her] and set [her] on his lap" facing away from him and "started going up and down, started humping [her] up and down." She also stated, "[H]e said when I get bigger he can start humping me but then he said that . . . you would like this that he would hump me up and down . . . ." Then, when she was lying on the small couch, Castroconde lifted her left leg and "start[ed] squeezing [her] private parts" on top of her clothing. She stated that he also "kept on squeezing . . . and then rubbing" her buttocks.
2. Forensic interview.
Three days after the incident, Jane was interviewed at the Children's Interview Center, and a video recording of the interview was played for the jury. Jane reiterated that Castroconde got her on his lap and "started humping [her]" and had "squeez[ed her] private part." She said that she was facing away from Castroconde, and she could feel his penis through her clothes. She stated, "He said . . . that, 'You will have this' when I grow up. He said that I will have his wiener when I grow up."
Jane mentioned that after "humping" her, Castroconde went to get a banana. When the interviewer asked for more details, Jane responded that he got a banana, peeled it and began eating it, but then "threw it on the floor." Jane said she thought "he was thinking about humping [her] again or something like that" before he began eating the banana because "he was laughing at something." She denied, however, that he had done anything else with the banana, and she never claimed that he put it between her legs.
Finally, Jane described the touching of her leg, vagina, and buttocks. She stated that Castroconde approached her, pulled on her leg, and started "squeezing" her vagina. He also "squished [her] butt" and did not stop until her mother came into the room.
3. Testimony.
At the time of trial, Jane was almost 11 years old. Her testimony was generally consistent with her statements around the time of the incident, although she also testified to additional details that had not emerged before.
Jane testified that Castroconde came into the living room where she was and turned off the light, indicating that his aunt did not like the lights on. Jane also confirmed that he had gotten a banana, eaten it, and thrown the peel away. He picked her up from the small couch and put her on the big couch next to him. Grabbing her and placing her on his lap facing away from him, he began "going up and down" with his penis against her buttocks for a couple minutes. He also massaged her shoulder and kept repeating in her ear "to say that [she] love[d] him."
Both Castroconde's aunt and Jane's mother confirmed that the aunt did not like the lights to be left on at night.
Jane testified that Castroconde then "pushed [her] up and he got up, and then he put [her] to the side of the couch, and then he started to unzip [her] clothes." But he was unable to do so, because "every time he unzipped [her] clothes, [she] zipped them back up." As she lay on her stomach, Castroconde "squeezed" her vagina "four or five times." Jane testified that Castroconde also "squeezed [her] butt" two or three times. Her mother then called her into the bedroom. Although Jane was "nervous" about telling her mother what had happened because her mother "gets mad, and when she gets mad, she goes crazy," Jane eventually said that Castroconde "was touching [her] the wrong way."
C. Castroconde's Statements and Testimony.
1. Post-arrest police interview.
The afternoon after the arrest, a Pittsburg police detective interviewed Castroconde in jail, and a video recording of the interview was played for the jury. After initially denying that he had done anything to Jane, Castroconde stated he was supposed to be on medication "[f]or mental health and [his] brain" and was "slow," and he "[didn't] know what [he was] doin' " when he did not take it.
Castroconde's aunt testified that Castroconde was "slow" and "did not speak until he was eight years old." Castroconde's treating psychiatrist testified that Castroconde had "been diagnosed with major depression with psychotic features." At the time of the incident with Jane, Castroconde was prescribed two antidepressants and an antipsychotic medication.
Castroconde then explained that he came into the house that night to get a blanket for his dog. Jane was in one of the living rooms, and after he asked whether she had seen a particular blanket, he sat on the big couch. The detective accused Castroconde of touching Jane, and Castroconde replied, "I crack[ed] her toes, that's it."
After the detective stated that Castroconde had inappropriately touched Jane, however, Castroconde said, "Only thing I remember is like grabbing the banana and shit. And like put it in her - between her legs and from right there I don't remember (unintelligible). I just cracked her feet." He then explained that he had gotten a banana from the kitchen, and after Jane approached him and was standing "really close," he put the banana between her legs from behind and said, " 'You like this? Who does this . . . to you?' " When Jane did not respond, Castroconde said, " 'Does somebody else do[] . . . this to you? Because you're coming at me,' " and asked her what was wrong with her. He said he "wasn't thinking right" when he placed the banana between her legs, and he denied being aroused while doing so.
The detective then revealed that Jane said Castroconde had "humped her," and Castroconde vehemently denied doing so. But he volunteered that, in addition to cracking Jane's toes, he "put [his] hand in between her thing and like that's it." He explained that he rubbed both cheeks of her buttocks, squeezed her thigh, and pulled her leg down. She laughed, and then he "pinched" her vagina "on the side" for two minutes.
Castroconde claimed he had touched Jane for so long because she "liked it" and "started pushing more towards [him]." Eventually, he theorized that when Jane said he had "humped" her she was referring to the fact that she "threw herself at [him]" and "started throwing her butt at [him]." He claimed he had to push her off him six times.
2. Testimony.
Castroconde testified in his own defense. He explained that before moving into his aunt's home, he was homeless. He had not worked for ten years because of his disability.
Castroconde claimed he had gone into the living room to ask if Jane had seen a particular blanket for the dog, but she had not. He said all the lights throughout the house were on, and he turned them off because his aunt did not like them to be on unless necessary. He went to Jane's mother's bedroom to ask if she or Oscar A. had seen the blanket, and he then went into the home's master living room to watch television. Jane came into that living room and asked whether she could sit with him, and he said no. She then returned to the other living room.
Castroconde testified that he went into the kitchen, got a banana, and ate it. He denied doing anything else with it before throwing the peel in the trash. According to him, Jane came very close to him, and he asked her what was wrong with her but she did not respond. She then lay down on the small couch. He approached her and cracked her toes, making her laugh. He explained this was not sexual but was "[j]ust a little game" and something he had done to his nephews before.
Castroconde stated that he then sat on the big couch, and Jane was "jumping on [his] lap" and he told her no and pushed her away. This happened four or five times. On cross-examination, he testified that he perceived Jane to be sexually coming on to him, and he agreed with the prosecutor that he believed the situation was her fault.
Castroconde testified that Jane finally sat on the floor and resumed watching television. According to him, Jane's mother then called her from the bedroom and, when Jane did not respond, came out and grabbed Jane by the hair. Both Jane and her mother left the room, and Castroconde soon went back to his room. He denied ever trying to touch Jane with the banana, grabbing her buttocks or vagina, or humping her.
Castroconde testified that he was given the wrong medication after his arrest and it made him "super sleepy and like super dehydrated." He claimed he heard voices during his interview in jail and indicated that he had made up most of what he said because he thought "telling [the detective] a story might help [him] get out of jail." But he could not explain why many of the details he supposedly invented matched what Jane claimed had happened.
D. Other Defense Evidence.
The defense pursued a number of tactics aimed at undermining Jane's credibility and bolstering Castroconde's.
1. Evidence bearing on Jane's credibility.
A large part of the defense case focused on a false allegation of abuse that Jane made about her maternal uncle when she was in kindergarten. Soon after the incident with Castroconde, Jane's mother revealed to the police that a few years earlier, Jane had reported at school that "her uncle had got into bed with her one evening" but that the Antioch Police Department ultimately determined the report was unfounded.
Reading from the report she wrote at the time, the principal of Jane's elementary school testified that Jane told her that Jane's uncle "supposedly hit[] her with a belt, poked her with a knife on her butt, and she bled so her mom took her to the hospital. [Jane] said [her uncle] hits her all the time, that one time he put her in the oven. He touches her all over too. Touches her face, legs, tummy. He came in the room at night. She tells mom and she tells him not to hit me . . . . [¶] He told her he was going to kill her. She got under the covers. He gave [her] bruises on [her] arms and legs." As a mandated reporter, the principal contacted the police about what Jane had said.
In response, an Antioch police officer was dispatched to Jane's home to investigate a possible sexual assault. After the officer briefly talked to Jane, Jane admitted that she made up the story about her uncle because "it was too hot outside and kids in her class were being mean" and she wanted to go home. The officer told Jane's mother that "it didn't take much" to get Jane to admit she lied.
Jane's mother testified that after Jane told the story about her uncle, they discussed what had happened. Jane "knew that what she did was wrong," and her mother told her, " 'You know you can't tell lies about people because you can get them in trouble.' And [Jane] said, 'Okay.' " At trial, Jane agreed that her uncle had never "touched [her] inappropriately," although she also denied reporting he had to the principal.
Soon after the incident with Castroconde, Jane's mother also told the police that there had been a prior incident between Jane and a younger boy. At trial, Castroconde's aunt testified that she once saw Jane on top of a boy, "and they said they were playing horse." Jane testified that the boy had been on top of her and had humped her, not the other way around.
In addition, the defense implied that Jane's mother did not like Castroconde and may have influenced Jane to lie. Castroconde dated Jane's mother's sister, and he testified that Jane's mother "didn't like when [he] was dating her sister. She always had an attitude." In her testimony, Jane agreed that her "mother thought [Castroconde] was kind of weird," but Jane's mother denied having any problems with Castroconde, with whom she had little contact.
2. Evidence bearing on Castroconde's credibility.
The defense also attempted to bolster Castroconde's testimony that he had falsely confessed to molesting Jane. As mentioned above, there was uncontroverted evidence that Castroconde suffered from "major depression with psychotic features" which significantly impaired his functioning. In addition, a psychologist testified as an expert for the defense that Castroconde scored in the lowest five percent of the population on various intelligence tests, putting him in the "impaired range." The psychologist opined that Castroconde's mental illness and cognitive deficits made him more suggestible and prone to giving unreliable statements during a police interrogation.
Finally, the defense presented evidence of Castroconde's good character. Castroconde testified that he often babysat for children. Two of Castroconde's nieces, a younger female cousin, and one of the cousin's female friends all testified that Castroconde had babysat them or had contact with them when they were children or teenagers and had never been sexually inappropriate with them. Castroconde's aunt, her daughter, and a longtime friend of Castroconde's testified that Castroconde did not behave in a sexually inappropriate way with children and could be trusted to be alone with children. All these witnesses also testified that Castroconde was an honest person.
II.
DISCUSSION
A. The Trial Court Did Not Err by Denying Castroconde's Request that the Jury Make a Special Finding Identifying the Act Relied Upon to Support Each Conviction.
Castroconde claims that his convictions must be reversed because the trial court erroneously denied his request that the jury be required to specify which act it relied upon to convict him of any given count. We disagree.
1. Additional facts.
The information did not specify a particular act to support each of the three charged counts. Before trial, Castroconde moved to require the People to elect which act supported each count. The trial court denied the request, concluding it was sufficient to instruct the jury on the unanimity requirement. The jury was ultimately instructed under the standard unanimity instruction, CALCRIM No. 3501, as follows:
The defendant is charged with Lewd Act upon a Child Under 14 in Counts 1, 2, and 3 on or about April 10, 2015.
The People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless:
1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed for each offense; [¶] OR
2. You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period and have proved that the defendant committed at least the number of offenses charged.
After the close of evidence, Castroconde requested that the verdict form for each count have a space for a special finding to identify which act the jury relied upon for any conviction. Castroconde's trial counsel explained, "I think that since there are multiple acts that the . . . jury could conceivably convict Mr. Castroconde on, they would need to show which act they are unanimous on. [¶] Even if they convict him of one, two, or all three, I think we need to know if [it is] the butt squeeze . . . ? On the vagina? Is it the humping? Is it the banana?" Counsel also suggested that if Castroconde was not convicted of all the counts, the absence of special findings might "create problems for appeal" and violate his due process rights, and that the jury might become confused despite a unanimity instruction and convict him even if it could not agree on a particular act for each count.
The trial court denied Castroconde's request. It observed that CALCRIM No. 3501 "states quite clearly that [the jurors] have to unanimously agree on each act for each offense." It also observed that the jury "could very well conclude that more than three acts occurred and under the second paragraph of [CALCRIM No.] 3501 find unanimously that more than three acts occurred and . . . [¶] would not be required to pars[e] out which act applied to which count under the instruction."
2. Discussion.
A jury in a criminal case must unanimously agree that "the defendant is guilty of a specific crime." (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Thus, "[a]s a general rule, when violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty." (People v. Jennings (2010) 50 Cal.4th 616, 679 (Jennings).) This rule has several exceptions, however, including " 'when the acts are so closely connected in time as to form part of one transaction' " or when "the defendant offers the same defense or defenses to the various acts constituting the charged crime." (Ibid.) Whether the trial court's denial of Castroconde's request violated the unanimity requirement is a question of law we review de novo. (See People v. Rells (2000) 22 Cal.4th 860, 870.)
The primary authority on which Castroconde relies held that defendants are generally "entitled to an election upon demand, and that the [trial] court's refusal to require one is not in all cases cured by the giving of a jury instruction which requires unanimous agreement on the particular act supporting the conviction." (People v. Salvato (1991) 234 Cal.App.3d 872, 875-876 (Salvato).) But Castroconde does not challenge the trial court's denial of his pretrial request for election, and Salvato does not address the issue of when special findings are required. To the extent Salvato supports Castroconde's position that a unanimity instruction alone was insufficient here, we decline to follow the decision. As has been persuasively explained, Salvato is flawed in several respects, including "that it runs contrary to an expansive body of case law" requiring either election or a unanimity instruction. (Hoffman v. Superior Court (2017) 16 Cal.App.5th 1086, 1095-1097; see Jennings, supra, 50 Cal.4th at p. 679.) Because Castroconde points to no other authority suggesting that special findings were required, he fails to demonstrate any error in the court's ruling.
Although we need not decide the issue, we question whether an error occurred even under Salvato. That decision recognized that neither an election nor a unanimity instruction is required when the continuous-conduct exception applies (Salvato, supra, 234 Cal.App.3d at p. 882), and the same is true when a defendant has the same defenses to all the potentially criminal acts. (Jennings, supra, 50 Cal.4th at p. 679.)
Moreover, even if there was an error, it was not prejudicial. Salvato held that the refusal to require election despite the giving of a unanimity instruction "will only be prejudicial if an election would have made some significant difference in the trial, whether through the exclusion of evidence, allowing a focused defense, or in some other respect that materially implicates the right to be advised of the charges." (Salvato, supra, 234 Cal.App.3d at p. 882.) Castroconde does not identify any way in which the trial court's denial of his request for special findings impacted the trial or his right to notice of the charges against him, making only the cursory assertion in his reply brief that he "was entitled to present a 'focused defense' and, to do so, he needed to know the acts he was defending against."
Castroconde also suggests that special findings were "required in order for the verdicts to be deemed reliable," as he was acquitted of one count and "it can be inferred that the jury did not believe Jane's story in its entirety." To the extent he means that the absence of special findings was prejudicial because the jury may not have agreed on one particular act in convicting him of each count, his argument is undermined by our assumption that the jurors understood and followed the unanimity instruction given. (See People v. Yeoman (2003) 31 Cal.4th 93, 139.) And to the extent he means that the jury may have relied on an act that was legally insufficient to support a conviction, he cannot establish prejudice either. The only act he challenges in this regard is the touching with the banana, and as we explain in section II.B. below, a conviction based on that act would not violate the corpus delicti rule. We therefore conclude that even if the trial court erred by denying his request for special findings, the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; see People v. Milosavljevic (2010) 183 Cal.App.4th 640, 647 [applying Chapman to failure to give unanimity instruction].)
B. The Corpus Delicti Rule Was Not Violated.
Castroconde contends that reversal is required because the jury may have convicted him based on the evidence that he touched Jane with a banana, in violation of the corpus delicti rule. We are not persuaded.
"To convict an accused of a criminal offense, the prosecution must prove that (1) a crime actually occurred, and (2) the accused was the perpetrator. Though no statute or constitutional principle requires it, California, like most American jurisdictions, has historically adhered to the rule that the first of these components—the corpus delicti or body of the crime—cannot be proved by exclusive reliance on the defendant's extrajudicial statements." (People v. Alvarez (2002) 27 Cal.4th 1161, 1164-1165.) The requirement of independent proof may be satisfied " ' "by circumstantial evidence [citation], and it need not be beyond a reasonable doubt. A slight or prima facie showing, permitting the reasonable inference that a crime was committed, is sufficient." ' " (People v. Gutierrez (2002) 28 Cal.4th 1083, 1127-1128.) The purpose of the corpus delicti rule is "to assure that 'the accused is not admitting to a crime that never occurred.' " (People v. Jones (1998) 17 Cal.4th 279, 301.) As relevant here, the rule enables a defendant to argue on appeal that insufficient evidence other than his or her extrajudicial statements supports a conviction. (Alvarez, at pp. 1165, 1170.)
We agree with the Attorney General that the corpus delicti of the charged crimes was established. Where, as here, a defendant is charged with multiple counts of lewd acts upon a minor, "separate evidence is not required as to each individual count to establish the corpus delicti; rather, evidence that multiple molestations took place will establish the corpus delicti for multiple counts." (People v. Tompkins (2010) 185 Cal.App.4th 1253, 1260.) Although Castroconde molested Jane on only one occasion, there was ample evidence that he touched her inappropriately multiple times, including by humping her, squeezing her vagina, and rubbing her buttocks. Moreover, Jane testified that Castroconde had a banana immediately before he began molesting her and behaved strangely while he had it. Despite her denial that he did anything to her with it, she was facing away from him for much of the incident, and it is possible to infer that she did not realize he had put it between her legs. The evidence that Castroconde had a banana and molested Jane in several other ways was a sufficient prima facie showing of the required corpus delicti. As a result, even if we assume that the jury convicted him of one count based on the touching with the banana, reversal is not required.
Because the Attorney General does not raise the issue, we do not address whether Castroconde forfeited this claim by failing to object on corpus delicti grounds below. (See People v. Martinez (1994) 26 Cal.App.4th 1098, 1103-1104; People v. Sally (1993) 12 Cal.App.4th 1621, 1628.) --------
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Dondero, J.