Opinion
A149686
08-29-2018
THE PEOPLE, Plaintiff and Respondent, v. EDGAR PATINO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. H58593)
A jury found Patino guilty of continuous sexual abuse of a child under age 14, assault by means of force likely to cause great bodily injury, and criminal threats. He was sentenced to 17 years, eight months in prison.
Patino raises seven claims of error: (1) the jury instruction on continuous sexual abuse was incorrect because it omitted a required mental state; (2) the trial court erred in failing to instruct, sua sponte, on lewd or lascivious act with a child as a lesser included offense of continuous sexual abuse as alleged in the accusatory pleading; (3) the trial court abused its discretion in admitting evidence of uncharged conduct under Evidence Code section 1108; (4) the trial court erred in removing a juror; (5) the prosecutor engaged in prejudicial misconduct in his closing argument; (6) the term for the criminal threat conviction must be stayed under section 654; and (7) the trial court abused its discretion in imposing the upper term for continuous sexual abuse.
We affirm.
FACTUAL AND PROCEDURAL HISTORY
By information filed in March 2016, the Alameda County District Attorney charged Patino with assault upon his then-girlfriend Y.B. by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4); count 2), criminally threatening Y.B. (§ 422; count 3), and continuous sexual abuse of Y.B.'s daughter "Jane Doe," a child under age 14, while Patino resided with, and had recurring access to, the child (§ 288.5, subd. (a) (hereinafter, § 288.5(a)); count 1). As to count 1, it was further alleged that Patino had substantial sexual conduct with Doe pursuant to section 1203.066, subd. (a)(8) (making him ineligible for probation).
Further undesignated statutory references are to the Penal Code.
The briefs on appeal refer to the child victim by her first name and the last name Doe. We refer to her as "Doe." She was identified as "Jane Doe" in the information.
Prosecution's Case
Y.B.
Around the summer of 2011, Y.B. and Patino started dating. At that time, Y.B. had two daughters from a prior marriage, Doe, born in 2000, and a younger daughter, born in 2002; they lived together with Y.B.'s relatives in Milpitas. Toward the end of 2011, Y.B. and her daughters moved in with Patino in Hayward.
In January 2012, Patino, Y.B., and her daughters moved to a small apartment behind a house on Hillview Street. Y.B. and Patino argued "[a] lot" when they lived together. They argued about Y.B.'s sex life before they began dating. Patino also criticized Y.B.'s ex-husband's appearance, and he would say Doe was ugly and dark-skinned like her father. Y.B. estimated Patino was violent with her more than 20 times. Y.B. left Patino many times, but she would return within a few weeks, and several times they reconciled within a day. In early 2013, Doe moved out of the Hillview residence and went to live with her maternal grandmother, but Y.B. and her younger daughter remained with Patino.
Y.B. became pregnant with Patino's child, and she gave birth to her third daughter in November 2013. The incident underlying counts 2 and 3 (assault by means of force likely to cause great bodily injury and criminal threats) occurred when Y.B. was about seven months pregnant.
Y.B. and Patino argued, and Patino said he was going to kill her. At first, Y.B. did not think he was actually going to kill her because he had said that before and had not harmed her. Patino then grabbed a plastic bag and put it over her head, and Y.B. became scared. Y.B. could not breathe, and she thought she was going to die. She tried to fight back. Patino had the plastic bag over her head for several seconds. He took the plastic bag off her head and put it in her mouth. He told her again he was going to kill her. He sounded serious and she took his threat seriously. Y.B. fought to get free and she fell off the bed, and Patino let go of her. Then Patino received a phone call, and he left.
Y.B. took the bag out of her mouth. She was in shock and very scared. Y.B. decided to leave Patino. She testified that, right after the plastic bag incident, she asked her landlady for a ride. The landlady, who lived in the front house of the Hillview residence, confirmed that Y.B. asked her for a ride. She recalled that Y.B., who was pregnant at the time, came to her back door, "crying and scared." Y.B. told her that she had been suffocated with a plastic bag.
Doe
Doe moved with her mother and her younger sister to Hayward to live with Patino when Doe was in sixth grade. She lived with Patino in Hayward for part of sixth and seventh grade, when she was 11 and 12 years old. Doe would get home from school around 2:00 p.m. Patino would then generally get home around 3:00 p.m., and Y.B. would get home around 5:00 or 6:00 p.m.
Doe testified that Patino touched her vagina more than 20 times while she lived with him at the Hillview residence. The conduct began one day after Patino, Y.B., Doe, and Doe's younger sister all went to a laundromat to do laundry. There was something white on Doe's underwear, and Patino commented that it probably meant Doe had an infection. Patino and Doe went home from the laundromat in one car, and Y.B. and Doe's younger sister were in another car. When Doe and Patino got home, Patino told Doe to go in her bedroom, and he was going to check if she had an infection. Doe sat on the bed with her pants and underwear off. Patino observed her pubic hair and told her it needed to be shaved. Then he got a battery-powered razor from his bedroom and shaved her. He told her to finish shaving herself, and she did. Patino did not tell Doe at that time whether he thought she had an infection. Doe thought she was 11 years old when this occurred.
Doe testified that Patino shaved her again one time when she was taking a shower. This incident was corroborated by Y.B., who recalled on one occasion, she came home from work, and Doe's younger sister told her that Patino had gone into the bathroom while Doe was in the shower. Y.B. was going to ask Doe about it, but Patino came in the room and said they were all liars and he could end up in jail. Y.B. asked Doe what happened, and Doe seemed "really scared" and said that nothing happened, that Patino had come into the bathroom and showed her how to shave herself but he did not touch her in any inappropriate way.
Within a few weeks of this incident, Patino told Doe he needed to check her again to see if her infection was getting worse. Y.B. was at work when this happened. Patino did this many times. It would happen in Patino and Y.B.'s bedroom with the door closed. Doe testified Patino would "look around to see if he saw anything that wasn't right" and touch her vagina with his fingers. Patino would tell her he thought she had an infection because it did not smell right. He never took her to a doctor, however.
Patino also used his mouth and thumb on Doe's vagina. Doe testified Patino licked her vagina and told her "it would help the infection and it would help me get tighter." Patino told Doe her vagina was not tight enough, and if she had an orgasm, it would help her vagina get tighter. She testified Patino's tongue would go inside her vagina and "it was everywhere on my vagina." This happened many times, starting when Doe was still in sixth grade and continuing through the summer and into seventh grade. Patino would also press his thumb in her vagina, and he told Doe "pressing the loose skin inside would help" her vagina get tighter. Sometime it would hurt. This happened "[n]ot so often" but more than once.
Patino continued this conduct until Doe moved away to live with her grandmother. He touched her at least once a month for about a year. Patino would ask Doe when she was having her period, and he did not touch her during that time. What he did most frequently was "putting his mouth and tongue on [Doe's] vagina." Doe asked Patino why they did not tell Y.B. about what Patino was doing, and he said Y.B. would not understand why he was doing it. Doe testified that she did not tell her mother herself about what Patino was doing because her mother would not believe her. Doe had told her mother about Patino telling her to get in the shower with him, and her mother had not believed her.
At trial, Doe testified that she showered with Patino on two occasions because he told her to get in the shower with him. One time, she wore a bra and underwear, the other time she was naked. Both times, Patino wore boxers. On one of those occasions, Patino kissed Doe.
Defense
Patino called five character witnesses. These witnesses testified generally that they had seen Patino around children or they had known him when they were children, and they did not see him behave inappropriately with children, and they did not believe he was a sexual deviant with children.
Verdict and Sentence
The jury found Patino guilty as charged and found the allegation of substantial sexual conduct true. The trial court imposed the upper term of 16 years for continuous sexual abuse (count 1), a consecutive term of one year (one-third the midterm) for assault by means of force likely to cause great bodily injury (count 2), and a consecutive term of eight months (one-third the midterm) for criminal threats (count 3), for a total sentence of 17 years, eight months in prison.
DISCUSSION
A. Jury Instruction on Continuous Sexual Abuse
Continuous sexual abuse may be based on either "three or more acts of substantial sexual conduct" or "three or more acts of lewd or lascivious conduct" occurring over a period of at least three months. (§ 288.5(a).) Here, the prosecutor relied solely on the theory that Patino engaged in "substantial sexual conduct," and, therefore requested a modified version of CALCRIM No. 1120, the jury instruction on the offense, that deleted reference to lewd or lascivious conduct. Defense counsel agreed to the modified version of CALCRIM No. 1120 and told the trial court she was fine "with the way the court ha[d]" the instruction.
Section 288.5(a), provides in relevant part: "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 . . . ." The statute "was enacted in 1989 in order to remedy some of the problems of pleading, proof and jury instruction that had arisen in the prosecution of 'resident child molesters' under section 288 [lewd or lascivious conduct with a child]." (People v. Avina (1993) 14 Cal.App.4th 1303, 1308 (Avina).)
The jury was given the following written instruction: "The defendant is charged in Count 1 with continuous sexual abuse of a child under the age of 14 years in violation of Penal Code section 288.5(a). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant lived in the same home with or had recurring access to a minor child; [¶] 2. The defendant engaged in three or more acts of substantial sexual conduct with the child; [¶] 3. Three or more months passed between the first and last acts; [¶] AND [¶] 4. The child was under the age of 14 years at the time of the acts[.]
"Substantial sexual conduct means oral copulation or masturbation of either the child or the perpetrator, or penetration, however slight, of the child's or perpetrator's vagina or rectum by the other person's penis or any foreign object.
"Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Penetration is not required.
"A foreign object includes any part of the body except a penis.
"You cannot convict the defendant unless all of you agree that he committed three or more acts over a period of at least three months, but you do not all need to agree on which three acts were committed. [¶] It is not a defense that the child may have consented to the act."
Patino now contends the jury instruction on continuous sexual abuse was incorrect. Specifically, he claims the instruction should have stated that "substantial sexual conduct" based on penetration of the vagina must be done "for the purpose of sexual arousal, gratification, or abuse." We conclude there was no instructional error and, even assuming error, there was no harm in this case.
Under section 288.5(a), "substantial sexual conduct" refers to conduct "as defined in subdivision (b) of Section 1203.066." Section 1203.066, subdivision (b), in turn, provides, " 'Substantial sexual conduct' means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender."
There is no additional requirement under section 288.5(a) or section 1203.066 that the act constituting "substantial sexual conduct" must be accomplished with a specific purpose or intent. Thus, in People v. Garcia (2014) 229 Cal.App.4th 302, the Court of Appeal observed, "Substantial sexual conduct [for purposes of section 288.5] refers to certain acts (penetration, oral copulation or masturbation) but does not require any kind of specific intent." (Id. at p. 312, fn. 3, italics added.) In Avina, cited by Garcia, the court stated, "A conviction for section 288.5 . . . could be based upon a course of substantial sexual conduct within the meaning of section 1203.066, subdivision (b), which requires no specific intent." (Avina, supra, 14 Cal.App.4th at p. 1313, italics added; see also People v. Whitham (1995) 38 Cal.App.4th 1282, 1293 (Whitham) [noting "the 'lewd or lascivious conduct' aspect of section 288.5 requires the specific intent of sexual gratification, but the 'substantial sexual conduct' aspect does not"].)
Given the statutory language of section 288.5(a) and the recognition in case law that "substantial sexual conduct" requires no specific intent, the trial court did not err in giving the modified version of CALCRIM No. 1120 that contained no reference to any specific intent. (Cf. Whitham, supra, 38 Cal.App4th at pp. 1287-1294].)
In Whitham, the Court of Appeal rejected a similar argument that "substantial sexual conduct" under section 288.5 must include a showing of the specific intent required for lewd or lascivious conduct under section 288 ("with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [the defendant] or the child"). (Whitham, supra, 38 Cal.App.4th at pp. 1290-1294.) The court reasoned, " '[I]t is the nature of the act that renders the abuse "sexual" and not the motivations of the perpetrator.' [Citation.] This being so, it makes eminent sense to include in section 288.5 a method of violation based upon 'substantial sexual conduct' unaccompanied by the specific intent required to prove a violation of section 288." (Id. at p. 1292.)
Patino concedes that when "substantial sexual conduct" involves rape, sodomy, or oral copulation, no additional showing of a sexual intent is required. (In such cases, he acknowledges, "The act speaks for itself.") He argues, however, that there are certain cases of "non-forcible sexual penetration," such as medical examinations, that are not crimes but would fall within the description of "substantial sexual conduct" if an intent requirement were not judicially imposed. From this argument, he claims that when "substantial sexual conduct" is based on penetration of the vagina or rectum of the victim by any foreign object, the conduct must be done "for the purpose of sexual arousal, gratification, or abuse," quoting language from section 289, subdivision (k)(1). But section 289, criminalizes forcible sexual penetration regardless of the age of the victim, a sexual offense quite different from the offense charged in this case. Section 288.5 (the charged offense) makes no reference to section 289 or the phrase "sexual penetration." Instead, section 288.5 refers to "substantial sexual conduct," and section 1203.066 does not contain the phrase "sexual penetration" or refer to section 289 either. Patino offers no authority or convincing explanation for his claim that the specific intent required for a violation of forcible sexual penetration under section 289 must be read into section 288.5. Without such authority, we decline to read section 288.5 as requiring an intent element imported from a different criminal statute addressing a different offense.
In any event, we discern no prejudice under any standard of review in the circumstances of this case. Doe testified that Patino touched her vagina more than 20 times and that he put his mouth and tongue on her vagina, telling her an orgasm "would help [her] vagina get tighter." She testified that the oral copulation started when she was in the sixth grade and continued into the seventh grade. Patino did not testify and thus never claimed he inspected Doe's vagina for infection or other medical purpose, and the defense theory was that Doe fabricated the allegations against Patino in an effort to break up the relationship between him and her mother. Patino's asserted concern with the jury instruction given is that without an intent element, a defendant could be found guilty of continuous sexual abuse under section 288.5 based on "innocuous applications [of sexual penetration] (such as a genital exam by a health professional—or concerned parent or spouse)." But given the evidence and defense argument presented at trial, there is no possibility the jury could have found Patino engaged in digital penetration—but not oral copulation—and that his purpose and intent in doing so was only to inspect for infection. In other words, there is no possibility on the record before us that the jury convicted Patino of continuous sexual abuse based on a finding of purely innocuous conduct by Patino acting as a concerned caregiver.
On appeal, Patino claims his defense at trial "was that he was acting as a parent when he performed the penetrations complained of; in other words, the genital penetrations were accomplished for an innocent purpose." This is clearly incorrect. Defense counsel never suggested in her opening statement or closing argument that Patino touched Doe's vagina but only did so for some medical purpose. Nor would such a defense theory explain the oral copulation. Instead, the defense was that Doe made up her allegations, her testimony made no sense, and no such sexual conduct occurred.
In support of his argument, Patino cites People v. Ngo (2014) 225 Cal.App.4th 126, but the case supports our conclusion. In Ngo, the defendant was charged with sexual penetration of a child under 10, a specific intent crime that required the jury to find the defendant penetrated the victim "for the purpose of sexual arousal, gratification, or abuse." The trial court, however, gave the jury CALCRIM No. 250, a general intent instruction. (Id. at pp. 161-162.) The Court of Appeal found instructional error, but concluded it was harmless under any standard. The court explained, "A more favorable outcome could only arise if a properly instructed juror could have found reasonable doubt that defendant penetrated the victim 'for the purpose of sexual arousal, gratification, or abuse.' There are very few circumstances in which a person would intentionally penetrate another person without such a purpose. Perhaps, for example, a father could penetrate his daughter when physically examining her for medical reasons. Or a defendant could be mentally unable to form the specific intent for some reason, e.g., mental illness. Whatever the possibility of such scenarios, nothing in the record would support them here. The evidence supports no plausible explanation for why the defendant would have intentionally penetrated the victim unless he did so for purposes of sexual arousal, gratification, or abuse. Accordingly, we conclude the error was harmless." (Id. at p. 163, italics added.)
Likewise here, nothing in the record supports a plausible innocent scenario of sexual penetration of Doe by Patino. Even assuming there was instructional error, it was harmless beyond a reasonable doubt. B. Failure to Instruct on Lewd or Lascivious Conduct with a Child Under 14
Next, Patino argues the trial court erred in failing to instruct on lewd or lascivious conduct with a child under 14 in violation of section 288 as a lesser included offense of continuous sexual abuse. We find no error.
"A trial court has a sua sponte duty to 'instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser.' [Citation.] Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense." (People v. Shockley (2013) 58 Cal.4th 400, 403 (Shockley).)
In Shockley, our high court explained, "To determine if an offense is lesser and necessarily included in another offense for this purpose, we apply either the elements test or the accusatory pleading test. 'Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.' " (Shockley, supra, 58 Cal.4th at p. 404.)
Here, the parties agree that a violation of section 288 is not a lesser included offense of continuous sexual abuse under the elements test. (See Avina, supra, 14 Cal.App.4th at pp. 1313-1314 ["Because section 288.5 could be violated without necessarily also violating section 288, the latter is not necessarily included within the former and no sua sponte instruction was required."].)
Section 288, subdivision (a) provides in relevant part, "[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 . . . ."
Patino argues that the accusatory pleading in this case actually alleged the facts constituting the elements of lewd and lascivious conduct. He relies on the following allegation in the information: ". . . said defendant did unlawfully engage in three and more acts of 'substantial sexual conduct," as defined in Penal Code section 1203.066(b), and three and more acts in violation of Section 288 with JANE DOE, a child under the age of 14 years . . . ." (Italics added.) Thus, Patino relies solely on the fact that the information alleged he engaged in both "substantial sexual conduct" and lewd or lascivious conduct.
The Attorney General responds that Patino cannot rely on the accusatory pleading test because the information was later implicitly amended to delete the allegation of lewd or lascivious conduct when, during trial, the prosecutor and defense counsel agreed that the jury instruction on continuous sexual conduct would delete reference to lewd or lascivious conduct. The Attorney General argues this implicit amendment to the information was obviously favorable to Patino since it eliminated one of the two legal bases upon which the jury could have convicted him of continuous sexual abuse. "Having accepted that amendment, [Patino] cannot now argue that lewd conduct with a child was a lesser included offense of count 1." We agree with the Attorney General.
Moreover, an instruction on a lesser included offense is only required when a jury could reasonably conclude the defendant committed the lesser but not the greater offense. (Shockley, supra, 58 Cal.4th at p. 403.) Putting aside the fact that lewd or lascivious conduct with a child is not a lesser offense of continuous sexual abuse, the record here does not support a conclusion that Patino violated section 288 but did not violate section 288.5. Doe testified that Patino touched her vagina with his thumb, fingers, and tongue, and this happened more than 20 times during the time she was in sixth and seventh grade. Based on her testimony, the jury could find Patino engaged in acts of substantial sexual abuse more than three times over the course of more than three months, or it could determine Doe was not telling the truth and conclude Patino was not guilty of any offense related to her. But there was no substantial evidence from which the jury reasonably could have found Patino committed an act or acts that amounted to lewd or lascivious conduct but he did not engage in continuous sexual abuse. Accordingly, we find no error in the trial court not instructing the jury, sua sponte, on lewd and lascivious conduct. (See People v. Huggins (2006) 38 Cal.4th 175, 217 [finding "no error under state law or violation of any constitutional guaranty" in failing to instruct on lesser uncharged offense where there was no substantial evidence from which a reasonable jury could conclude that the lesser offense, but not the greater, was committed].) C. Admission of Evidence of Uncharged Conduct
The trial court allowed the prosecution to present evidence that Patino took a shower with Doe's younger sister pursuant to Evidence Code section 1108. Patino argues this was error.
1. Background
Evidence Code section 1108, subdivision (a), provides, "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." (Italics added.)
A "sexual offense" is defined in Evidence Code section 1108 as a crime involving conduct proscribed by various identified criminal statutes. (Evid. Code, § 1108, subd. (d)(1).) Included as a qualifying "sexual offense" is conduct proscribed by section 647.6, annoying or molesting a child. (Evid. Code, § 1108, subd. (d)(1).)
In this case, the prosecution filed a motion seeking to introduce evidence that Patino showered with Doe's younger sister, an act of annoying or molesting a child under age 18 in violation of section 647.6, to show his "sexual disposition toward underage girls." Patino objected to the admission of this evidence, arguing it was irrelevant and likely to inflame the passions of the jury and confuse the issues.
The trial court ruled the evidence was admissible. The court determined that showering with Doe's younger sister could be found to be a violation of section 647.6, a qualifying "sexual offense" under Evidence Code section 1108. Considering whether the evidence was inadmissible under Evidence Code section 352, the court found the evidence was not more egregious or inflammatory than the charged offense, and there was no danger of confusion between the offenses. The court also found, "in terms of the time consumed, it is going to take some additional time, but I think that these issues are going to be addressed in any event during the course of the trial." Therefore, the court found the evidence admissible under Evidence Code section 1108.
At the time of trial, Doe's younger sister was 13 years old. She testified that she had taken a shower with Patino once when her family lived with him in Hayward. She said she did not want to shower with him, but he made her do it. She wore underwear and a bra and she felt "weird."
2. Analysis
"On appeal, we review the admission of other acts or crimes evidence under Evidence Code section 1108 for an abuse of the trial court's discretion. [Citation.] The determination as to whether the probative value of such evidence is substantially outweighed by the possibility of undue consumption of time, unfair prejudice or misleading the jury is 'entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence.' " (People v. Miramontes (2010) 189 Cal.App.4th 1085, 1097.)
Patino first argues the shower evidence did not amount to a "sexual offense." We conclude, however, the evidence proffered was sufficient for a jury to find Patino violated section 647.6 (a "sexual offense" under Evidence Code section 1108) by a preponderance of the evidence. (See People v. Jandres (2014) 226 Cal.App.4th 340, 353 (Jandres) ["The trial court must make a preliminary determination of whether the proffered evidence [under Evidence Code section 1108] is sufficient for the jury to find, by a preponderance of the evidence, that the defendant committed an enumerated offense."].)
Section 647.6, subdivision (a)(1), provides, "Every person who annoys or molests any child under 18 years of age shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment."
"[A] violation of section 647.6, subdivision (a) requires proof of the following elements: (1) the existence of objectively and unhesitatingly irritating or annoying conduct; (2) motivated by an abnormal sexual interest in children in general or a specific child; (3) the conduct is directed at a child or children, though no specific child or children need be the target of the offense; and (4) a child or children are victims. (People v. Phillips (2010) 188 Cal.App.4th 1383, 1396, fn. omitted.)
Here, the proffered evidence was that Patino, who was not the girl's father and who had only started dating her mother in 2011, made Doe's younger sister take a shower with him sometime in 2012 or 2013. She was nine or possibly 10 years old at the time. She testified that she did not want to do it, and it made her feel weird. A reasonable jury could conclude that a young girl being made to shower alone with her mother's boyfriend is conduct a normal person would be unhesitatingly irritated by, and could further infer that the adult man who made his girlfriend's young daughter shower with him was motivated by an unnatural or abnormal sexual interest in children. (Cf. Jandres, supra, 226 Cal.App.4th at pp. 345, 354-355 [where evidence showed the defendant put his finger in an 11-year-old girl's mouth, "a jury reasonably could posit that defendant's conduct carried a sexual connotation, such that it would not have been an abuse of discretion for the trial court to permit the jury to determine whether defendant's conduct violated . . . section 647.6"].) The trial court did not err in determining the proffered evidence was sufficient for a jury to find, by a preponderance of the evidence, that Patino committed a "sexual offense" under Evidence Code section 1108 against Doe's younger sister.
Second, Patino argues the trial court abused its discretion in not excluding the shower evidence under Evidence Code section 352 because it had little or no relevance to Doe's allegations. We disagree.
Evidence that a defendant committed a "sexual offense" under Evidence Code section 1108 "is presumed admissible and is to be excluded only if its prejudicial effect substantially outweighs its probative value in showing the defendant's disposition to commit the charged sex offense or other relevant matters." (People v. Cordova (2015) 62 Cal.4th 104, 132.) In deciding whether such evidence should be excluded under Evidence Code section 352, the trial court "must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (People v. Falsetta (1999) 21 Cal.4th 903, 917.)
Considering these factors, we see no abuse of discretion. Patino's offense against Doe's younger sister was relevant in that it showed his unnatural sexual interest in young girls. It was not remote in time as it happened during the same period as the charged offense. We agree with the trial court that the evidence was not more egregious or inflammatory than the charged offense, and there was little risk of confusing the jury.
In sum, we conclude there was no error in the trial court allowing evidence that Patino took a shower with Doe's younger sister under Evidence Code section 1108. D. Discharge of Juror B2 During Trial
Patino claims the trial court abused its discretion and deprived him of his right to a representative jury when it excused a juror who reported she needed to care for her sick child. This claim lacks merit.
1. Background
On Monday, August 1, 2016, the prosecution rested, and the defense began presenting character witnesses. The trial court released the jurors at 4:00 p.m., except for Juror B2, who had sent the court a note that her son was ill. The note indicated Juror B2's family members had watched the boy that day, but they were leaving, and Juror B2 had no one else who could take care of her son the next day. Juror B2 told the court her son had diarrhea. She said she would not be able to find someone to watch him, and she could not send him to his summer school program in his current condition. The trial court excused Juror B2, finding her unable to continue to perform her duty as a juror "because of her family emergency, which is the illness of her son."
Defense counsel stated for the record that Juror B2 had been excused over her objection. She suggested that the defense case could be postponed, and the parties could discuss issues outside the presence of the jury the following day.
The trial court responded that the juror's note did not indicate the child would be better in one day. The court continued, "I think I gave her many opportunities today to indicate whether or not she had other family members who could step in for her. At a certain point it seemed that it was not appropriate to continue to push that question based on her answer to those questions in that she's only moved here. . . . [¶] The court does find that she was unable to perform her duty as a juror and that's due to the illness of her son which she could not guarantee to us was going to resolve itself within a day."
2. Analysis
"Trial courts may remove any juror who "becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty . . . ." (§ 1089.) A trial court learning of grounds for dismissal 'has an affirmative obligation to investigate.' [Citation.] However, '[b]oth the scope of any investigation and the ultimate decision whether to discharge a given juror are committed to the sound discretion of the trial court.' " (People v. Duff (2014) 58 Cal.4th 527, 560.)
We have no difficulty concluding the trial court met its obligation to investigate and did not abuse its discretion in determining Juror B2 was unable to perform her duty because of her sick child and lack of childcare.
Patino argues, "In hindsight, it appears [defense] counsel was correct that allowing juror B2 leeway to care for her son without removing her from the jury would not have caused more than a short delay: the testimony of the remaining defense character witnesses was quite short and went quickly." This argument is unavailing because, "[o]f course, the reasonableness of the trial court's decision must be considered at the time the decision was made and not with the benefit of hindsight." (People v. Williams (2006) 40 Cal.4th 287, 308.) Moreover, the trial court was concerned that the child's illness might require Juror B2's absence for more than one day, and nothing in the record suggests the court's concern was unfounded. E. The Prosecutor's Closing Argument
Patino contends the prosecutor engaged in misconduct during closing argument that deprived him of a fair trial. He claims the prosecutor improperly appealed to "passion and prejudice" by referring to the impact the investigation and trial had on Doe, arguing defense counsel called Doe a "liar," referring to facts outside the record regarding unreported child molestations, and denigrating defense counsel for challenging Doe's testimony. We find no error.
1. Background
In his initial closing argument, the prosecutor, without any defense objections, recounted the evidence and urged the jury to find Patino guilty of all charges.
In her closing argument, defense counsel argued Doe was frustrated because her mother uprooted the family and forced them to move to Hayward with her new boyfriend, Doe wanted her mother to break up with Patino because her mother and Patino had a tumultuous relationship and fought all the time, and Doe made up the sexual abuse allegations against Patino to make sure his relationship with her mother ended for good.
Defense counsel argued that Doe's testimony about how the abuse started "makes no sense," and her "descriptions of sexual acts sound sort of like what a 16-year-old has cobbled together from T.V., internet, her friends" rather than "an actual memory." She pointed out that Doe's allegations changed over time from her CALICO interview, to the preliminary hearing, to a pretrial interview, to her trial testimony, arguing this was reason to suspect Doe's testimony.
CALICO stands for the Child Abuse, Listening, Interviewing, and Coordination Center. (In re I.C. (2018) 4 Cal.5th 869, 879.)
Defense counsel also urged the jury not to be swayed by sympathy for Doe. She said, "When . . . Doe came in and testified, I think all of our hearts broke for her a little bit because the pain that she felt and the pain that she showed was real. That's pain that she has felt throughout this entire family dynamic. . . . It's so tempting to see her tears and gloss over the fact that there really isn't much evidence here, to gloss over the fact that there are actual holes in the prosecution's case."
In its rebuttal closing, the prosecution addressed the defense arguments. Defense counsel objected twice. In the first instance, the prosecutor was addressing the defense character witnesses. He argued, "Defense witnesses claim he's not a sexual deviant with children because he never acted that way in front of them. Well people such as the defendant don't act out their sexual deviancies involving children in front of friends. [¶] How many times has the world been fooled by friends, family and neighbors? How many times do you see on the T.V. news the reporters interviewing neighbors[,] someone has just committed a horrible crime [and] the neighbor says, it's a quiet neighborhood—"
At this point, defense counsel objected to the prosecutor's comments as "improper argument," and the trial court overruled the objection. The prosecutor continued, "The neighbor next door always acts surprised. Why? Because people don't obviously demonstrate this type of behavior. Child molesters don't act like you might stereotypically think a child molester might act like. [¶] . . . [¶] Sexual deviancy is a trait that people never find out about because molesters keep it private."
Later in his rebuttal, the prosecutor said, "Now it's not easy being a child molest victim, having to answer questions from everyone, having adults ask you over and over the same thing, having to go to CPS, go to CALICO, talk to the D.A.'s office, testify at a preliminary hearing for [a] day and a half, testify at this trial over the course of two days, answering every question from so many different people. And god forbid there's any deviation in any answers then be attacked by the defense as being inconsistent. It's not easy being a child molest victim, being accused of lying. [¶] Defense said, oh, your heart goes out to her. No. The defense is calling her a liar."
Defense counsel interposed an objection for "improper argument," and the trial court overruled the objection.
The prosecutor continued, "It's not [easy] being a child molest victim. It's no wonder why child molestation is a vastly underreported crime. Child molestation is one of the cruelest forms of violence."
The next day, after arguments had concluded and outside the presence of the jury, defense counsel requested a curative instruction on the ground the prosecutor had engaged in misconduct in his rebuttal. She claimed three instances of misconduct. First, she argued, "[I]n telling the jury that the world has been fooled by friends and further stating something to the effect of child molesters are all around us hiding in plain sight. . . . [The prosecutor] was bringing in evidence that was not presented in this trial and appealing to the fears of the jurors about the number and sort of proximity of child molesters in asking them for a guilty verdict." Second, she objected to the prosecutor's statement, "It's not easy to be a child molest victim," because it "appeals to the jurors to feel sympathy towards the victim which the jury instructions explicitly prohibit." Third, she asserted the prosecutor disparaged the defense by "saying repeatedly that I was making it more difficult for the child molest victim by calling her a liar. [¶] For the record, I don't believe I ever once in my closing argument called her a liar. I certainly didn't call her a liar when she was on the stand. I did highlight problems with her credibility, motive to make this up and other issues with her credibility which, as [the prosecutor] knows, is my constitutional duty."
The prosecutor argued his first comment was a response to the defense's emphasis on the character witnesses. He stated his second comment was intended as response to the defense argument that Doe had been inconsistent in describing Patino's sexual abuse. Third, the prosecutor said he had no intent to disparage defense counsel and he was only responding to defense counsel's closing argument that Doe was lying.
The trial court denied Patino's request for a curative instruction finding no prosecutorial misconduct.
2. Analysis
"A criminal prosecutor has much latitude when making a closing argument. Her argument may be strongly worded and vigorous so long as it fairly comments on the evidence admitted at trial or asks the jury to draw reasonable inferences and deductions from that evidence." (People v. Seumanu (2015) 61 Cal.4th 1293, 1330 (Seumanu).)
" 'The applicable federal and state standards regarding prosecutorial misconduct are well established. " 'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " ' " (People v. Hill (1998) 17 Cal.4th 800, 819.)
"To establish misconduct, defendant need not show that the prosecutor acted in bad faith. [Citation.] However, she does need to 'show that, "[i]n the context of the whole argument and the instructions" [citation], there was "a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner." ' [Citation.] If the challenged comments, viewed in context, 'would have been taken by a juror to state or imply nothing harmful, [then] they obviously cannot be deemed objectionable.' " (People v. Cortez (2016) 63 Cal.4th 101, 130.)
With these legal principles in mind, we consider the prosecutor's comments in rebuttal that Patino now claims were prosecutorial misconduct.
a. Viewing the Crime Through the Eyes of the Victim
"It is 'settled that an appeal to the jury to view the crime through the eyes of the victim is misconduct at the guilt phase of trial; an appeal for sympathy for the victim is out of place during an objective determination of guilt. [Citations.]' " (People v. Arias (1996) 13 Cal.4th 92, 160.)
Patino argues the prosecutor improperly invited jurors to put themselves in the place of the victim when he said, "It's not easy being a child molest victim, being accused of lying." But the prosecutor did not improperly ask the jury to view the crime through the eyes of the victim. (He did not, for example, ask the jury to imagine the emotional and physical pain Doe must have suffered from the continuous sexual abuse inflicted by Patino.) Rather, he was pointing out how difficult it was for Doe to talk about the embarrassing details of the crime repeatedly with strangers, a point Doe herself made when she testified that she was embarrassed to talk about what Patino did to her. Taken in context, it is clear the prosecutor was arguing that this difficulty could explain the discrepancies in Doe's allegations over time. The prosecutor's comment was a permissible response to defense counsel's attack on Doe's credibility.
b. Accusing the Defense of Calling the Victim a Liar
" ' "A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel." [Citations.] "In evaluating a claim of such misconduct, we determine whether the prosecutor's comments were a fair response to defense counsel's remarks" [citation], and whether there is a reasonable likelihood the jury construed the remarks in an objectionable fashion [citation].' [Citation.] 'To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' " (Seumanu, supra, 61 Cal.4th at pp. 1336-1337.)
Patino claims the prosecutor denigrated defense counsel by stating "the defense calls the victim a liar." We see nothing improper in this comment. In her closing argument, defense counsel told the jury Doe "had every reason in the world to make up these allegations" and she had "motive to lie." (Italics added.) The prosecutor's comment that "the defense calls the victim a liar" was a fair response to defense counsel's remarks.
c. Asserting Child Molestation is Underreported
"While counsel is accorded 'great latitude at argument to urge whatever conclusions counsel believes can properly be drawn from the evidence [citation],' counsel may not assume or state facts not in evidence [citation] or mischaracterize the evidence." (People v. Valdez (2004) 32 Cal.4th 73, 133.)
Patino asserts the prosecutor improperly stated facts not in evidence when he referred to television news "reporters interviewing neighbors" after "someone has just committed a horrible crime." The prosecutor said, "The neighbor next door always acts surprised. Why? Because people don't obviously demonstrate this type of behavior."
The prosecutor explained this comment was a "common sense" argument that child molesters conduct their crimes in private and in a manner so as not to be detected. The trial court understood the comment as making the point that "the nature of the offense is one that is not spoken of or broadcast." The Attorney General further argues the prosecutor's comment was an appropriate response to the defense character witnesses' assertions that they had never seen Patino display sexual interest in a child. All of these points are well taken; the prosecutor's comment was a permissible response to the defense character evidence. In this context, we believe the comment was fair argument, not an improper statement of fact. Nor do we see how the jury could have understood or applied the comment in an erroneous manner or in a manner that would harm Patino.
Patino next complains about the prosecutor's comment, "It's no wonder why child molestation is a vastly underreported crime. Child molestation is one of the cruelest forms of violence." Again, Patino claims the prosecutor argued facts not in evidence in stating child molestation is underreported. The Attorney General points out, however, that evidence was presented at trial that child sexual abuse is underreported. Dr. Rachel Gilgoff—who was called by the prosecution as an expert in pediatrics, child sexual assault, and child sexual assault exams—testified, "The vast majority of people who have been sexually abused never disclose that abuse." The prosecutor's comment was not improper. F. Section 654
Patino was convicted of assault by means of force likely to cause great bodily injury (count 2) and criminal threats (count 3), based on the incident with the plastic bag when Y.B. was seven months pregnant. At sentencing, the trial court gave its tentative decision to impose consecutive terms for counts 2 and 3, stating it "considered . . . section 654 and conclude[d] that it does not apply to counts two and three because the counts relate to different conduct and therefore do not merge." After hearing counsels' argument on the issue, the trial court imposed consecutive terms for counts 2 and 3.
Patino contends the eight-month term for count 3 must be stayed under section 654 because the assault and the criminal threat convictions were based on the same course of conduct.
Section 654, subdivision (a), provides in relevant part, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." When section 654 applies to a particular count, the trial court must impose sentence on that count, but then stay its execution. (People v. Correa (2012) 54 Cal.4th 331, 337.)
Under section 654, "the relevant question is typically whether a defendant's ' "course of conduct . . . comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654." ' . . . ' "If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." ' " (People v. Correa, supra, 54 Cal.4th at pp. 335-336.)
" 'Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.' " (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1378.)
Subdivision (a)(4) of section 245 applies to "[a]ny person who commits an assault upon the person of another by any means of force likely to produce great bodily injury." Section 422, subdivision (a) applies to "[a]ny person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety."
Here, the trial court reasonably could have found that when Patino placed the plastic bag over Y.B.'s head, covering her mouth and nose as he held the bag in place, his intent and objective was to harm her (i.e., he intended to use force likely to produce great bodily injury in violation of section 245, subdivision (a)(4)). The court also reasonably could have found that after Patino took the plastic bag off of Y.B.'s head and said he was going to kill her as he shoved the plastic bag in her mouth, he harbored the separate intent and objective that his statement be taken seriously as an immediate threat that would cause Y.B. to be in sustained fear for her safety (in violation of § 422, subd. (a)). Because there was sufficient evidence that the course of conduct underlying counts 2 and 3 was divisible, the trial court properly could impose separate punishments for the two counts. G. Imposition of the Upper Term for Count 1
Finally, Patino claims the trial court abused its discretion in imposing the upper term for continuous sexual abuse. He argues the offense was not distinctively worse than the ordinary.
1. Background
As circumstances in aggravation, the trial court found (1) Patino's offense involved a high degree of cruelty, viciousness, and callousness, (2) the victim was particularly vulnerable, (3) the manner in which the crime was carried out indicated planning, (4) Patino took advantage of a position of trust, and (5) Patino engaged in conduct that indicated a serious danger to society. (Cal. Rules of Court, rules 4.421(a)(1), (3), (8), (11), and (b)(1).)
The court explained the victim was 11 and 12 when the crime occurred and was innocent and vulnerable. "Her naivety was exploited and her body and sense of self was gravely violated." Patino "held a place of trust and confidence in this domestic scenario. He was trusted to care for and protect his girlfriend's child. Instead he took advantage of that trust to commit acts of abuse and debauchery that were carried out for nearly a year on a consistent basis." "He planned and thought at least to isolate the victim to carry out the molest. And on top of that he repeatedly disparaged her verbally and emotionally, adding cruel insults to the sexual assaults on her 12-year-old body." The court found Patino's conduct evidenced he was a serious danger to society.
In mitigation, the court considered that Patino was 44 years old, he did not have a significant prior criminal record, and he successfully completed a diversion program (for second degree burglary and possession of burglary tools) in 2010.
2. Analysis
"A trial court's decision to impose a particular sentence is reviewed for abuse of discretion and will not be disturbed on appeal 'unless its decision is so irrational or arbitrary that no reasonable person could agree with it.' . . . Even if a trial court has stated both proper and improper reasons for a sentence choice, 'a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.' " (People v. Jones (2009) 178 Cal.App.4th 853, 860-861.) A single factor in aggravation will support imposition of an upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.)
Patino challenges each of the five circumstances in aggravation found by the trial court, but he fails at the outset. He argues the crime did not involve a high degree of callousness, cruelty, or viciousness because " '[o]bviously, any conviction under this code section is serious, is traumatic to one or more people,' " quoting defense counsel's argument at sentencing. This observation does not show the trial court abused its discretion. The court found that Patino "repeatedly disparaged [Doe] verbally and emotionally, adding cruel insults to the sexual assaults on her 12-year-old body." This shows callousness and cruelty, and cruel insults are not an element of the offense of continuous sexual abuse. We see no abuse of discretion in the court finding as an aggravating factor that Patino's offense involved a high degree of cruelty.
Because a single factor in aggravation is sufficient to support the upper term, we need not address Patino's remaining challenges to the trial court's findings of aggravating circumstances. Nonetheless, we observe that Patino's challenges are unpersuasive. The trial court did not rely on Doe's age alone in finding her a particularly vulnerable victim. Rather, the court cited her "naivety," which could be understood as Patino taking advantage of Doe's lack of medical knowledge and her fear of possible infection to exploit her sexually. Patino seems to suggest that taking advantage of a position of trust or confidence cannot be considered an aggravating factor for the crime of continuous sexual abuse because the offense includes the element of residing in the same home with the minor child or having recurring access to the child (§ 288.5(a)), but here, the evidence showed Patino did not just live with Doe, he was trusted by Y.B. to care for her daughters. Patino abused Doe at home in the afternoon while Y.B. was at work, and the abuse occurred over 20 times over the course of a year. This was sufficient for the trial court to find planning and sophistication. (Cf. People v. Dancer (1996) 45 Cal.App.4th 1677, 1695 ["[T]he circumstances leading to the first [incident of lewd conduct] plus its repetition thereafter indicate planning and sophistication, thereby making it worse than a sudden spontaneous act."], disapproved of by People v. Hammon (1997) 15 Cal.4th 1117.)
Y.B. testified that Patino had responsibilities caring for her daughters and disciplining them.
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.