Opinion
E063426
02-22-2017
THE PEOPLE, Plaintiff and Respondent, v. HUGO DELGADO GOMEZ, Defendant and Appellant.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson, Felicity Senoski, and Scott C. Taylor, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1401532) OPINION APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge. Affirmed with directions. Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson, Felicity Senoski, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendant and appellant, Hugo Delgado Gomez, of sex crimes against his daughter, Jane Doe. Specifically, the jury convicted defendant of (1) four counts of aggravated sexual penetration by force against a child under age 14 (Pen. Code, § 269, subd. (a)(5)), (2) three counts of aggravated oral copulation by force against a child under age 14 (§ 269, subd. (a)(4)), and (3) six counts of oral copulation or sexual penetration against a child age 10 or younger (§ 288.7, subd. (b)). The trial court sentenced defendant to state prison for a total term of 105 years to life. It also imposed various fines and fees, including a $1,500 fine pursuant to section 288, subdivision (e).
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant argues the police obtained his involuntary confession through coercion and promises of leniency in violation of his due process rights. He also contends the court erred when it failed to instruct the jury that sexual penetration of a child is a specific intent crime. Lastly, he argues we should strike the restitution fine imposed under section 288, subdivision (e). We agree the restitution fine should be stricken, but otherwise affirm.
II. FACTS AND PROCEDURAL BACKGROUND
A. Defendant's Sexual Abuse of Doe
The relationship between defendant and Doe's mother ended before Doe's birth. Defendant had visitation with Doe several nights per week. After returning from a visit with defendant, six-year-old Doe complained to her mother of pain in her vagina. Doe's vagina was very red and irritated. She disclosed to her mother that defendant had caused the redness by putting his finger inside her. Defendant did this to her while they were both lying on the bed, and he had done this on other occasions.
Doe's mother took her to the emergency room, where a doctor examined Doe and the police were called. Child forensic interviewer, Jacklyn Saldana, interviewed Doe. Doe told Saldana that defendant was "pushing" on her "[r]abito," which was the term Doe used for her vagina. Defendant did this more than once. They were both lying down, and defendant was wearing only his shirt and underwear. Defendant touched himself with his other hand while he was touching Doe. Defendant's touch felt "bad" because he was "pushing hard" on her. Doe described white water that looked like eggs coming out of defendant, after which he would stop touching himself. He would say, "'oh, oh, it's coming,'" when the water came out. Defendant also put his finger inside the "back" of her "rabito" more than once. He was lying down on the bed and Doe was on top of him, jumping on his belly. It felt awful when defendant put his finger in back because he was "'crushing it bad.'" B. Defendant's Arrest and Interrogation
After Doe's interview with Saldana, Detective Aurelio Melendrez of the Riverside Police Department had Doe's mother arrange a meeting with defendant to purportedly exchange Doe. Officers detained defendant at the exchange point and transported him to the police station, where the detective interviewed him.
The prosecutor played the video and audio recorded interview with defendant for the jury. Defendant initially denied inappropriately touching Doe and said she was lying. He then said he touched her "to clean her up," and he had masturbated when she was sleeping in the bed next to him. After Detective Melendrez said Doe had told them "what happened," defendant disclosed that he had penetrated Doe's vagina with his finger "a little bit" while he was masturbating. He asserted Doe jumped on top of him and kissed him "like an older girl." He had masturbated in front of her "[q]uite a few times." He had also penetrated her anus with his finger four times. He had her touch his penis five to 10 times, and had her "kiss" or put her mouth on his penis three times. He ejaculated in her mouth one or two of those times. Doe got on top of him and tried to put his penis in her vagina, but it did not work because she was too small. This happened five or six times. He asserted that Doe liked the digital penetration and orally copulating him, and insisted that she initiated the acts. He also suggested that if Doe's mother and he had stayed together, he would not have sexually abused Doe.
At the end of the interview, defendant wrote a letter apologizing to Doe for "what I did to you" and asking for her forgiveness.
III. DISCUSSION
A. The Admissibility of Defendant's Confession
Defendant contends the trial court prejudicially erred in denying his motion to suppress because his confession was not voluntary. He argues that Detective Melendrez used deception, coupled with implied promises of leniency, to obtain his confession, in violation of his due process rights under the federal and state Constitutions. We disagree and hold his confession was voluntary.
1. Additional Pertinent Background
When defendant arrived at the exchange point, an officer handcuffed defendant and said they needed to speak with him at the police station. The officers present identified themselves as police officers. Detective Melendrez was present and wearing plainclothes with a tactical vest that said "Police" and had an embroidered badge on it. It was common practice for the officers to introduce themselves as police officers to the suspect. Defendant was driven to the police station in an unmarked police car. Once at the station, Detective Melendrez advised defendant of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, which defendant said he understood. The detective employed a ruse and pretended to scrape defendant's fingernails and hands for evidence, after which he questioned defendant.
The recording of the interview is approximately two hours 18 minutes long, although during the first approximately 13 minutes, defendant sat alone in the room, and the main portion of the interrogation concluded at around one hour 27 minutes. Defendant was not handcuffed.
Early in the interview, Detective Melendrez asked defendant if he knew why he was at the police station, and defendant said that Doe's mother had accused him of "overtouch[ing]" Doe "or something like that." Detective Melendrez replied: "Okay. Well, just so you know what we do. I—I'm not really like a police officer. I'm not here to just throw people in jail or do anything like that. My concern is making sure that children are safe and that families are put back together and allowed to continue on. I work with, like, Child Protective Services a lot. I d—I do that. And so when we get things that catch our attention and things are brought up, then what we do is we talk to the person. We w—we wanna make sure that if something happened that it's not gonna happen again. That the child's gonna be safe with that person. And if it becomes a matter of, 'Hey, we need to do supervised visits.' Or modify certain things, then we do it because we don't want the child to lose the parent in the process. So what did she tell you about overly touching her?" Defendant went on to say that he had touched Doe with a towel to dry her.
Throughout the interrogation, the detective urged defendant to be truthful. For instance, he told defendant that investigators would check the evidence samples collected from defendant's hands against samples collected from Doe. He explained: "So my concern is that—like I said, the behavior doesn't continue. And that we're not dealing with this later on down the road if something did happen. But I'm gonna—I'm gonna tell you right now that if—if something did happen, I need to know. I need to know why. She's not hurt, she's not injured, but if I come to find out through our evidence collection and through other things that we collected from her when we had an exam done on her that something did happen, they're not gonna let you see your daughter anymore. That—that's cut and dry right now. So if something happened accidentally . . . ."
After the detective mentioned the evidence collection and "DNA" evidence, defendant said he had touched Doe without a towel to clean her because she had not wiped well after going to the bathroom, and another time because she had some irritation around her vagina. The detective continued to encourage defendant to be truthful: "If somebody tells us the truth, then we can go, 'Okay, let's deal with this.' And move on from it. But my concern is when I have a little girl saying, 'Yeah, he touched my vagina.' I need to know why. And this wasn't something that happened a long time ago. You know that more happened." He also said he had talked to Doe, and she had described "exactly what happened" when she and defendant were lying in his bed. Defendant again insisted that he had touched Doe only to clean her, this time using toilet paper.
Shortly afterward, the detective revealed that Doe said defendant had digitally penetrated her vagina and "it hurt." The detective again exhorted him to be truthful: "Okay? I wanna know the truth so I can make sure you guys can continue to see each other and, uh, eh—whatever else is gonna happen." The detective said Doe "told us what happened." Defendant then admitted to digitally penetrating her while masturbating.
Prior to trial, defendant moved to suppress his confession and the apology letter to Doe. He argued that he did not fully, completely, or knowingly waive his rights because the detective led defendant to believe he was acting as a social worker, not law enforcement, and he did not advise defendant of the charges against him. Defendant further argued that his statements were involuntary and inadmissible as a matter of law because the detective made express and implied promises of leniency and threats.
The court watched the video recording of defendant's interview and announced that it tentatively believed the Miranda advisements were sufficient, and defendant had validly waived his Miranda rights. But the court was "a little bit split with respect to the voluntariness issue . . . ." The court expressed concern about the detective's suggestion that he was "primarily interested in seeing whether the family could be reunited or not as opposed to the purpose of the interview being for a criminal investigation."
Miranda v. Arizona (1966) 384 U.S. 436.
We have also watched the video recording of defendant's interrogation. --------
After hearing argument from counsel, the court denied defendant's motion to suppress. The court explained that, while it continued to be troubled by some of Detective Melendrez's statements, it was clear that officers had arrested defendant, placed him in handcuffs, and transported him to the police station in a police vehicle. A reasonable person in these circumstances would know that he was being detained by law enforcement, whether the officers identified themselves as police or some other individuals in a law enforcement capacity. The detective's statement, "'We're not like police officers,'" misdirected defendant, but it was not the type of misdirection or deception that would elicit a false confession. Even if defendant believed that the issue was custody or the possibility of supervised visitation, if he had falsely admitted to sexual acts with Doe, such an admission would not lead to reunification. The court found that defendant's statements were voluntary in nature and admissible.
2. Defendant's Confession Was Voluntary
An involuntary confession obtained through coercive police activity is inadmissible under the due process clauses of the federal and state Constitutions. (People v. Benson (1990) 52 Cal.3d 754, 778.) When a defendant challenges the admissibility of a confession, the prosecution must prove it was voluntary by a preponderance of the evidence. (Id. at p. 779.) The essential issue is whether the confession "is the product of an '"essentially free and unconstrained choice"' or whether the defendant's '"will has been overborne and his capacity for self-determination critically impaired"' by coercion." (People v. Williams (2010) 49 Cal.4th 405, 436.)
"Under both state and federal law, courts apply a 'totality of circumstances' test to determine the voluntariness of a confession." (People v. Massie (1998) 19 Cal.4th 550, 576.) Relevant factors include "'the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity' as well as 'the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health.' [Citation.]" (People v. Williams (1997) 16 Cal.4th 635, 660.)
A confession is involuntary if officers obtain it through express or implied promises of benefit or leniency. (People v. Holloway (2004) 33 Cal.4th 96, 115.) But the promise must be the motivating cause of the confession. (People v. McCurdy (2014) 59 Cal.4th 1063, 1088; People v. Ray (1996) 13 Cal.4th 313, 339-340.) If the promise of benefit or leniency did not cause the defendant to confess, the confession is not rendered involuntary. (People v. Ray, supra, at pp. 339-340.)
Moreover, merely advising a suspect that it would be better to tell the truth, when unaccompanied by a threat or a promise of benefit or leniency, does not render a confession involuntary. (People v. Holloway, supra, 33 Cal.4th at p. 115.) "'[I]n this we must exercise great care not to become confused: intellectual persuasion is not the equivalent of coercion.'" (People v. Hill (1967) 66 Cal.2d 536, 549.) Officers may discuss "any 'advantage' or other consequence that will 'naturally accrue' in the event the accused speaks truthfully about the crime." (People v. Ray, supra, 13 Cal.4th at p. 340.)
"Similarly, the use of deceptive comments does not necessarily render a statement involuntary. Deception does not undermine the voluntariness of a defendant's statements to the authorities unless the deception is '"'of a type reasonably likely to procure an untrue statement.'"'" (People v. Williams, supra, 49 Cal.4th at p. 443.)
In reviewing the denial of a motion to suppress, 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 the voluntariness of the confession is subject to independent review." (People v. Massie, supra, 19 Cal.4th at p. 576.)
After an independent review of the record and the totality of the circumstances, we conclude that defendant's confession was voluntary. Defendant points to the detective's statements early in the interview that he was "not really like a police officer" and was concerned with putting families back together. He contends the statements amounted to an implied promise that he would not be punished but would receive help so he could reunify with Doe. There was no such implied promise. In the context of the surrounding circumstances, defendant was clearly talking to law enforcement. Officers detained him, handcuffed him, and drove him to the police station. They identified themselves as police officers, and even if Detective Melendrez was not the officer who handcuffed defendant, he was on the scene in a vest that said "Police." Detective Melendrez was the person who read defendant his Miranda rights at the police station. Defendant also indicated during the interview that he recognized the detective's partner, another officer present in the interview room, from when defendant had been at the police station on a prior, unrelated occasion. Further, his apology letter to Doe explained that he was "detained in jail, sitting writing these letters to you." On these facts, there was no reasonable basis for defendant to believe that he was not talking to law enforcement or that he was protected from criminal prosecution. The detective's comments that he worked with Child Protective Services and was concerned with keeping children safe and families together were just that—comments on his concerns and motivations. They fall far short of a promise to defendant of leniency or benefit, either expressly or impliedly.
The same may be said of similar comments on which defendant relies, like when the detective said that he did not want "the behavior" to continue or deal with it again "down the road," or the detective's comment that, if someone tells them the truth, they can "deal" with it and "move on from it." These statements merely appealed to defendant to be truthful and described the natural advantages to Doe and defendant of doing so (protection from future abuse and psychological or moral relief, respectively). This tactic is permissible. (People v. Carrington (2009) 47 Cal.4th 145, 172 [noting that "when law enforcement officers describe the moral or psychological advantages to the accused of telling the truth, no implication of leniency or favorable treatment at the hands of the authorities arises."]; People v. Holloway, supra, 33 Cal.4th at p. 116 [explaining that officer's suggestion that killings may have been accidental or the result of an uncontrollable rage, and that such circumstances could "'make[] a lot of difference,'" were not promises of leniency, but a description of the benefits that might naturally flow from honesty (a reduction in the degree of homicide or arguments for mitigation in the penalty phase)].)
Defendant additionally relied on the detective's statement: "I wanna know the truth so I can make sure you guys can continue to see each other and, uh, eh—whatever else is gonna happen." He argues that it was only after this last promise of leniency that defendant confessed. Again, this was no offer of leniency; the detective did not say the authorities would decline to prosecute defendant if he confessed. But even assuming this constituted an implied promise of a benefit (continuing to see Doe), we find the implied promise was not the motivating cause of his confession. The suggestions that the detective had Doe's incriminating statements and DNA evidence—a tactic that defendant does not challenge—were prominent during the interrogation. If we look to what immediately preceded defendant's confession that he digitally penetrated Doe, it was not the suggestion that defendant could continue to see Doe—it was the detective's assertion that Doe "told us what happened." Interrogation may properly include exchanges of information, summaries of evidence, or confrontation with contradictory facts. (People v. Holloway, supra, 33 Cal.4th at p. 115.) Considering the references to the evidence and defendant's statements afterward, defendant was motivated to confess so that he could minimize his culpability and shift blame in the face of incriminating evidence. He maintained that Doe liked and initiated the sexual acts, and he implied that he would never have abused Doe absent the separation from Doe's mother.
Moreover, other relevant factors surrounding the interview demonstrate that the confession was voluntary and not the product of coercive police conduct. At approximately two hours, the interview was not especially long, and defendant was not restrained by handcuffs. He appeared calm and rational throughout, not in distress. While the record does not contain evidence of prior experiences with the criminal justice system, defendant is not particularly unsophisticated, nor is he particularly young. He indicated during interrogation that he attended college and studied advanced calculus there, and he was 39 years old at the time. The record does not disclose any mental health issues. Defendant reported that he had a knee injury that might require surgery, but there is no suggestion that he was suffering pain or other symptoms that might cloud his mental faculties. In short, nothing about the circumstances of the interview or his personal characteristics suggest that defendant was naive or particularly vulnerable to any promises by the officers. (See People v. Dowdell (2014) 227 Cal.App.4th 1388, 1404 [even though the officer made implicit promises of leniency, such promises did not cause the defendant to confess, in light of his sophistication, prior experience with the criminal justice system, and his emotional state].) We conclude defendant spoke freely and voluntarily when he confessed.
The cases on which defendant principally relies do not convince us otherwise. In one case, People v. Flores (1983) 144 Cal.App.3d 459, the court found no coercive police conduct during the first portion of the interrogation. (Id. at p. 470.) During this time, the officers repeatedly suggested they had information that the defendant killed the victim and hypothesized that the killing could have been an accident or self-defense, and they repeatedly urged the defendant to tell his side of the story. (Id. at pp. 464-466.) But "the entire atmosphere of the interrogation changed" when the officers said the defendant could be subject to the death penalty and told him, "'we need you to help yourself out of this mess.'" (Id. at pp. 470-471.) The implication was that "[o]nly by confessing his involvement in the decedent's death could the appellant avoid the possible death penalty." (Id. at p. 471.) They also assured him "his prior record of assaultive conduct was 'nothing to worry about,'" and impliedly promised he might be released from custody on his own recognizance if he confessed. (Id. at p. 472.) Under these circumstances, the court held the defendant's incriminating admissions were not voluntary. (Ibid.)
In our case, the detective's reference to continuing to see Doe does not rise to the level of promising relief from the death penalty. There was no comparable point in the interview when the entire atmosphere changed. Moreover, there is no discussion in Flores of other relevant circumstances and personal characteristics of the defendant that might weigh in the voluntariness analysis, which weigh in favor of finding the confession voluntary here.
The other case, People v. Hogan (1982) 31 Cal.3d 815, disapproved of on another ground in People v. Cooper (1991) 53 Cal.3d 771, 836, is even more distinguishable. The Hogan defendant was convicted of two counts of first degree murder and sentenced to death. (People v. Hogan, supra, at p. 820.) The officers interrogated the defendant three times over the course of two days while he spent the night in custody. (Id. at pp. 827, 835-836.) During the first session, the officers suggested that if the defendant had a mental problem, they "'would see what [they] could do to help him.'" (Id. at p. 835.) They permitted him to see his wife twice after the first two sessions and surreptitiously recorded the meetings. (Id. at p. 836.) He repeatedly mentioned to her that the officers had suggested he needed mental help, and said, "'[t]hey acted like if I pleaded like I'm nuts they'd get me off.'" (Id. at pp. 836-837.) The officers also told his wife that they had evidence of his guilt, which she conveyed to him, along with her expectation that he might confess his guilt to her. (Id. at p. 837.) The defendant expressed anxiety and uncertainty to his wife about whether he was crazy and whether he actually committed the killings. (Id. at p. 836.) At the end of his second meeting with her, he "was highly emotional . . . , breaking frequently and at times lapsing into sobs." (Id. at p. 837.) Less than an hour later, the officers interrogated him for the third time, and they again suggested they could help if he had a mental problem. (Id. at p. 838.) They questioned him about incriminating evidence and accused him of lying. (Ibid.) The defendant began sobbing and made incriminating admissions. (Ibid.) He sobbed uncontrollably throughout his statement and vomited, and the officers terminated the interrogation because of his "inability to control himself or answer coherently." (Id. at p. 839.) Against this background, the court could not "conclude beyond a reasonable doubt that appellant's admissions were 'freely self-determined' as required by due process." (Id. at p. 843.)
It is easy to see why the court concluded that the Hogan officers broke down the defendant's will, but the facts before us are not analogous. We do not have three sessions of interrogation over the course of two days while the defendant was kept isolated in custody; suggestions that the defendant's mental health led to his guilt, reinforced by the use of a close personal relation to question his innocence; and a clear breakdown evidenced by an extremely distraught emotional state. The nature, intensity, duration, and results of the officers' interrogation in Hogan do not compare to this case.
Before we move on, defendant contends that the trial court used the "wrong standard" in denying his motion to suppress because it focused on whether the police tactics would lead to a false confession, not whether the confession itself was voluntary. He asserts that this alone compels reversal and remand for a new hearing. This contention lacks merit for at least two reasons. First, we are concerned with the correctness of the trial court's ruling, not the correctness of its reasoning, and we are convinced it arrived at the correct ruling. (People v. Perkins (2016) 244 Cal.App.4th 129, 139.) Second, we are not persuaded the court applied the wrong standard. Contrary to defendant's assertion, the court was focused on voluntariness. It indicated concerns with the "voluntariness issue" when it announced its tentative. Defendant's briefing and the parties' oral argument repeatedly touched on promises of leniency as they relate to voluntariness. But defendant also based his motion on a second argument—that the detective deceived defendant by saying he was not a police officer, and defendant's Miranda waiver was consequently invalid. Because deception was in issue, the court and the parties also focused on whether the deception was reasonably likely to procure a false statement, the pertinent legal principle. (People v. Williams, supra, 49 Cal.4th at p. 443.) This does not mean that the court focused on this principle to the exclusion of all others the parties had briefed and discussed, when it expressly ruled that defendant's confession was voluntary in nature and admissible. B. Instructional Error on General Versus Specific Intent
Defendant next contends the court should have instructed the jury that the crime of oral copulation or sexual penetration with a child age 10 or younger (§ 288.7, subd. (b)) required specific intent, at least as to sexual penetration. There was evidence of both oral copulation and sexual penetration here, and the jury convicted defendant of this crime in counts 8 through 13. Defendant asserts that the court violated his due process rights in describing it as a general intent crime, and the error was not harmless beyond a reasonable doubt. Applying our independent review to this claim of instructional error (People v. Jimenez (2016) 246 Cal.App.4th 726, 731), we hold that, although the challenged instruction was erroneous, there is no question the error was harmless.
1. Additional Pertinent Background
The court instructed the jury with CALCRIM No. 252, which stated, in pertinent part: "The crimes charged in Counts 1 through 13 require proof of the union, or joint operation, of act and wrongful intent. [¶] The following crimes require general criminal intent: . . . oral copulation or sexual penetration of a child under ten as charged in counts 8 through 14 [sic] . . . . For you to find a person guilty of these crimes, that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act; however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime. [¶] The following crimes require a specific intent or mental state: aggravated sexual assault (i.e., sexual penetration by force or duress as charged in counts 1 through 4); [and] sexual penetration by force, the lesser included offense to counts 1-4. . . . The act and the specific intent and/or mental state required are explained in the instruction for each such crime."
At the earlier conference on jury instructions, the court and parties discussed CALCRIM No. 252. According to the court, they had spent time informally trying to determine whether the charged crimes required specific or general intent. The court asked defense counsel whether she had any comments on the instruction as drafted, and counsel replied that she did not. The prosecutor raised the issue of specific intent, but not as to counts 8 through 13. She suggested that, in addition to instructing that counts 1 through 4 required specific intent, the court should instruct that the lesser included offense also required it. Neither party argued that the court should instruct that counts 8 through 13 required specific intent.
The court also instructed the jury with CALCRIM No. 1128, which stated, in pertinent part: "The defendant is charged in Counts 8 through 13 with engaging in oral copulation or sexual penetration with a child 10 years of age or younger in violation of Penal Code section 288.7[, subdivision] (b). [¶] To prove that the defendant is guilty of this crime, the People must prove that, first, the defendant engaged in an act of oral copulation or sexual penetration with Jane Doe . . . ; second, when the defendant did so, Jane Doe . . . , was 10 years of age or younger; three, at the time of the act, the defendant was at least 18 years old. [¶] . . . [¶] Sexual penetration means penetration however slight of the genital or anal opening of the other person by any foreign object, substance, instrument, device, or unknown object, for the purpose of sexual abuse, arousal, or gratification."
2. The Instructional Error Was Harmless
Preliminarily, the People argue that defendant has forfeited this challenge by failing to object below. But "[b]y statute, a defendant may challenge on appeal an instruction that affects his or her substantial rights even when no objection has been made in the trial court." (In re Sheena K. (2007) 40 Cal.4th 875, 881, fn. 2; accord, § 1259.) "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim . . . ." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) We therefore turn to the merits.
Section 288.7, subdivision (b), provides: "Any person 18 years of age or older who engages in oral copulation or sexual penetration, as defined in Section 289 , with a child who is 10 years of age or younger is guilty of a felony . . . ." (Italics added.) Section 289, in turn, defines sexual penetration as "the act of causing the penetration, however slight, of the genital or anal opening of any person . . . for the purpose of sexual arousal, gratification, or abuse by any foreign object," including any part of the body that is not a sexual organ. (§ 289, subd. (k)(1), (2).)
Sexual penetration of a child under section 288.7, subdivision (b), is a specific intent crime. (People v. Ngo (2014) 225 Cal.App.4th 126, 157.) The specific intent required is described in section 289—the act must be done for the purpose of sexual arousal, gratification, or abuse. (People v. Ngo, supra, at p. 157.) Accordingly, the court erred in instructing the jury that sexual penetration of a child was a general intent crime. (Id. at pp. 161-162.)
The question remains whether the error was prejudicial. Defendant contends we must apply the "harmless beyond a reasonable doubt" standard for errors of constitutional dimension (Chapman v. California (1967) 386 U.S. 18, 24) because the erroneous instruction relieved the prosecutor of her burden to prove each element of the crime, violation of defendant's due process rights. As we discuss below, the instructions as a whole did not relieve the prosecutor of her burden of proof, suggesting that the standard of prejudice for state law errors (People v. Watson (1956) 46 Cal.2d 818, 836) should apply.
We need not decide which standard of prejudice applies because, even under the more stringent Chapman standard, the error was harmless. (People v. Ngo, supra, 225 Cal.App.4th at pp. 162-163.) When "[t]he absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole," no apparent prejudice results. (People v. Galloway (1979) 100 Cal.App.3d 551, 567-568; accord, People v. Rhodes (1971) 21 Cal.App.3d 10, 20 ["[T]he fact that the necessary elements of a jury charge are to be found in two instructions rather than in one instruction does not, in itself, make the charge prejudicial."].) Here, the court ultimately instructed the jury with the required specific intent. It correctly instructed with CALCRIM No. 1128 that sexual penetration required a purpose of sexual abuse, arousal, or gratification—the precise specific intent necessary. We presume the jurors understood, correlated, and followed the court's instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Thus, to the extent that the jurors found defendant guilty of sexual penetration, as opposed to oral copulation, in counts 8 through 13, they necessarily determined he had the required specific intent. The implied finding that he penetrated Doe for the purpose of sexual abuse, arousal, or gratification was amply supported by the evidence that he masturbated while he penetrated her, and she had seen him ejaculate.
"'This case aptly illustrates the general principle that—other than circumstances involving a mental state defense—"the characterization of a crime as one of specific intent [or general intent] has little meaningful significance in instructing a jury. The critical issue is the accurate description of the state of mind required for the particular crime." [Citations.]'" (People v. Rathert (2000) 24 Cal.4th 200, 205.) The court ultimately gave the jury an accurate description of the required mental state. For this reason, we are convinced the error in describing the offense as a general intent crime was harmless beyond a reasonable doubt. (People v. Ngo, supra, 225 Cal.App.4th at pp. 162-163.) C. Restitution Fine
Defendant lastly contends the court erred in imposing a $1,500 restitution fine pursuant to section 288, subdivision (e). We agree the fine was unauthorized and order it stricken.
Section 288, subdivision (e), provides: "Upon the conviction of any person for a violation of subdivision (a) or (b), the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed ten thousand dollars ($10,000)." (Italics added.) Courts must apply clear, unambiguous statutory language according to its terms. (People v. Snook (1997) 16 Cal.4th 1210, 1216.)
In this case, the fine was unauthorized because the jury did not convict defendant of violating subdivision (a) or (b) of section 288. By its plain terms, the fine applies only to convictions under these subdivisions. Subdivision (e) does not mention any fines related to the sections under which defendant was convicted—namely, sections 269, subdivision (a)(4) and (a)(5), and 288.7, subdivision (b). Defendant's failure to object at the time of sentencing does not bar us from correcting this unauthorized fine. (People v. Allen (2001) 88 Cal.App.4th 986, 998, fn. 27.)
The People argue that the statute authorized the fine because section 288, subdivision (a), incorporates by reference the sections under which defendant was convicted. Specifically, section 288, subdivision (a), provides: "[A]ny person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years." (Italics added.) Sections 269 and 288.7, the sections under which defendant was convicted, are "provided for in Part 1" of the Penal Code. (See pt. 1, tit. 9, ch. 1 [§ 269]; pt. 1, tit. 9, ch. 5 [§ 288.7].)
The People's interpretation of the statute is flawed. It is true that section 288, subdivision (a), expansively defines "lewd or lascivious act[s]" to include any of the acts criminalized in other sections of part 1. But a violation of subdivision (a) is a crime unto itself, which involves elements in addition to the lewd or lascivious act. (§ 288, subd. (a); People v. Lopez (2010) 185 Cal.App.4th 1220, 1229.) Under section 288, subdivision (e), only convictions for violating subdivision (a) (and those under subd. (b)) authorize the fine. There is no dispute that the jury did not convict defendant of violating either of these subdivisions. We are duty-bound to apply the plain terms of the statute as written and order the fine stricken.
IV. DISPOSITION
The trial court shall strike as unauthorized the $1,500 restitution fine it imposed pursuant to section 288, subdivision (e). The court is directed to amend the abstract of judgment accordingly and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. SLOUGH
J.