P. v. Contreras

 

 

 

 

 

 

 

 

Filed 10/3/13  P. v. Contreras CA4/3

 

 

 

 

 

 

 

 

 

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FOURTH
APPELLATE DISTRICT

 

DIVISION
THREE

 

 
>

THE PEOPLE,         Plaintiff and Respondent,               v.   MANUEL MARTINEZ CONTRERAS,         Defendant and Appellant.

G047098            (Super. Ct. No. 08CF2706)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Carla Singer, Judge.  Affirmed.

                        Susan D. Shors, under
appointment by the Court of Appeal, for Defendant and Appellant.

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Peter Quon and Anthony Da Silva, Deputy
Attorneys General, for Plaintiff and Respondent.

 

*                      *                      *

 

INTRODUCTION

                        Defendant Manuel
Martinez Contreras appeals from the judgment entered after a jury found him
guilty of committing a lewd act upon a child under 14 years old, misdemeanor href="http://www.mcmillanlaw.com/">assault and battery, and kidnapping.  The jury found true the enhancement
allegation that Contreras kidnapped his victim to commit a lewd act upon
her.  Contreras argues the trial court
erred by refusing to instruct the jury with a special instruction on third
party culpability.  Contreras also argues
the trial court erroneously stated that he is likely ineligible for
postsentence prison conduct credit as to the imposed indeterminate 15‑year‑to‑life
sentence.

                        We affirm.  Even if we were to assume the trial court
erred by refusing to instruct the jury with the special instruction on third
party culpability, any such error was harmless. 
Furthermore, the trial court’s stray comment regarding the unlikelihood
of the Department of Corrections and
Rehabilitation awarding Contreras postsentence conduct credit did not
constitute error.

 

FACTS

                        Around 8:20 p.m. on September 14, 2008, five‑year‑old
A.F. and her seven‑year‑old brother (collectively, the children)
were playing with a bike in a grass alley in their apartment complex.  A.F. stopped riding the bike and started
talking to a man, whom she later identified to police officers as
Contreras.  A.F. told her brother that he
could ride the bike; A.F.’s brother rode away. 
A.F.’s brother had seen Contreras drinking out of a beer can, earlier
that night. 

                        Contreras asked A.F. questions
she could not answer.  He then picked her
up, carried her to a different part of the apartment complex, and put her down
on the ground.  Contreras pulled down
A.F.’s shorts and underwear, and bit her on her “pee pee.”  A.F. tried to run away, but Contreras would
not let her go.  A.F. screamed.  The children’s neighbor, 10‑year‑old
A.H., was retrieving a ball, when she saw Contreras standing behind A.F. and
touching A.F.’s breasts and stomach. 
Earlier that night, A.H. had seen Contreras drinking beer from a red
beer can with a couple of his friends. 
A.H. ran home and told her parents what she had seen.  She later told an investigator that she
thought Contreras lived in a particular apartment in the apartment
complex. 

                        A.F.’s brother heard
A.F. scream and, after looking for her, found her with Contreras; Contreras was
kneeling down, facing A.F.  When
Contreras saw A.F.’s brother, Contreras got up, said A.F. had gotten lost, and
ran away.  A.F.’s brother saw A.F.’s
shorts were unzipped and “the button taken off”; A.F. was crying. 

                        The children’s mother,
L.F., heard A.F.’s scream; she met the children at a corner.  A.F.’s brother screamed, “Mom[,] Mom,” and
A.F. cried, “a man mom.  A man.  A man.” 
L.F. saw that A.F.’s shorts had the zipper down, belt unbuckled, and
button undone, and her underwear was pushed down just above her genital
area.  L.F. also saw a red mark between
A.F.’s belly button and pubic bone.  L.F.
called the police.  

                        The following day, L.F.
found a red beer can in an outside planter. 
She later gave the police the beer can she had found. 

                        A couple days later,
A.F. and A.H. identified Contreras as the perpetrator at an in‑field
showup.  A.H. also identified Contreras
at trial. 

                        A screening of a sample
taken from a swab of A.F.’s stomach showed the presence of a low level of
amylase which could indicate the presence of saliva.  Further testing showed the sample contained
DNA matching Contreras’s genetic profile. 
The DNA analyst testified at trial that “[t]he frequency of choosing an
individual at random who could not be excluded as that major profile from the
stomach swab is more rare[] than one in one trillion unrelated
individuals.”  An unidentified male’s DNA
(not Contreras’s DNA) was found on the beer can that L.F. had found. 

 

 

PROCEDURAL
BACKGROUND

                        Contreras was charged in
an information with one count of committing a lewd act upon a child under 14
years old, in violation of Penal Code section 288, subdivision (a)href="#_ftn1" name="_ftnref1" title="">^[1] (count 1); one count of oral copulation
or sexual penetration with a child of 10 years or younger, in violation of
section 288.7, subdivision (b) (count 2); and kidnapping to
commit a sex offense, in violation of section 209, subdivision (b)(1)
(count 3).  The information alleged
that in the commission of count 1, Contreras kidnapped A.F., in violation
of sections 207, 209, and 209.5. 

                        The jury found Contreras
guilty as to counts 1 and 3 as charged, and, as to count 2, found him
guilty of the lesser included offenses of assault and battery in violation of
sections 241, subdivision (a) and 243, subdivision (a),
respectively.  The jury also found true
that Contreras kidnapped A.F. in the commission of count 1. 

                        The trial court imposed
a total prison sentence of 15 years to life. 
The court advised Contreras of the calculation of his presentence
conduct credit and stated that, as agreed by the prosecutor and Contreras’s
trial counsel, Contreras would not be entitled to postsentence conduct
credit.  Contreras appealed. 

 

DISCUSSION

I.

Even Assuming the Trial Court Erred by
Refusing to Give Contreras’s Special Instruction on Third Party Culpability,

Any Such Error Was Harmless.

                        “‘The trial court is
obligated to instruct the jury on all general principles of law relevant to the
issues raised by the evidence, whether or not the defendant makes a formal
request.’”  (People v. Souza (2012) 54 Cal.4th 90, 115.)  “The trial court must give instructions on
every theory of the case supported by substantial evidence, including defenses
that are not inconsistent with the defendant’s theory of the case.  [Citation.] 
Evidence is ‘substantial’ only if a reasonable jury could find it
persuasive.  [Citation.]  The trial court’s determination of whether an
instruction should be given must be made without reference to the credibility
of the evidence.  [Citation.]  The trial court need not give instructions
based solely on conjecture and speculation.” 
(People v. Young (2005) 34
Cal.4th 1149, 1200.)

                        Contreras argues the
trial court erred by denying his request that the jury be instructed with the
following special instruction on third party culpability evidence:  “You have heard evidence that a person other
than the defendant committed the offense with which the defendant is charged.  The defendant is not required to prove the
other person’s guilt.  It is the
prosecution that has the burden of proving the defendant guilty beyond a
reasonable doubt.  Therefore, the
defendant is entitled to an acquittal if you have a reasonable doubt as to the
defendant’s guilt.  Evidence that another
person committed the charged offense may by itself leave you with a reasonable
doubt as to the defendant’s guilt. 
However, its weight and significance, if any, are matters for your
determination.  If after considering all
of the evidence, including any evidence that another person committed the
offense, you have a reasonable doubt that the defendant committed the offense,
you must find the defendant not guilty.” 


                        Contreras’s trial
counsel argued that the special instruction should be given in light of the
defense’s theory that another man committed the charged offenses.  That theory was based on evidence that
(1) A.H. saw the man who committed the charged offenses drinking out of a
red beer can before he contacted A.F., (2) L.F. found a Tecate beer can in
an outside planter the following morning, and (3) DNA belonging to an
unidentified male (not Contreras) was found on that beer can. 

                        The trial court refused
to give the requested special instruction, explaining on the record, as
follows:  “There is no authority in which
the court is aware of supporting this instruction in cases which, as
[Contreras’s counsel] identified, there is a theory that some other dude did
it.  [¶] Second, the instruction and the
material therein is covered in all the other instructions given, including
[CALCRIM Nos.] 220 and 315, reasonable doubt and eyewitness
testimony.  [¶] In addition, by making
the law clear to the jury with our standard instructions, including how they’re
to consider circumstantial evidence, we are giving them the keys to say either
this defendant committed the crime beyond a reasonable doubt or he did
not.  And if he did not, he’s entitled to
an acquittal.  [¶] So I think it is not only
inappropriate, it is duplicative and, frankly, I think it’s confusing.  [¶] You are not precluded in any way, shape
or form, [Contreras’s counsel], from arguing that we have the wrong guy at
counsel table.  And certainly I would not
limit your argument as to the significance of the analysis of the Tecate beer
can.  [¶] So I think that refusal of this
instruction does not amount to a limitation on counsel to present his defense
and, consequently, I’m confident that without authority it should not be
given.” 

                        In his opening brief,
Contreras argues he “wanted to show the jury how evidence of a third party’s
guilt—that two eyewitnesses identified the assailant as the man who drank beer
from a can left near the scene—could legally support a verdict of
acquittal.  This instruction would have
shown the jury the legal significance of the highly relevant third party
culpability evidence.”  Contreras also
argues the trial court’s refusal to give the special instruction constituted a
denial of due process. 

                        The special instruction,
proffered by Contreras in this case, is similar to the instruction considered
by the California Supreme Court in People
v. Earp (1999) 20 Cal.4th 826, 887, which stated:  “‘Evidence has been offered that a third
party is the perpetrator of the charged offense.  It is not required that the defendant prove
this fact beyond a reasonable doubt.  In
order to be entitled to a verdict of acquittal, it is only required that such
evidence raise a reasonable doubt in your minds of the defendant’s guilt.’”  In People
v. Earp, the Supreme Court held the trial court’s refusal to give such an
instruction was harmless error, stating, “[e]ven assuming that this proposed
instruction accurately pinpointed the defense theory, defendant suffered no
prejudice from the trial court’s refusal to give it.  The jury was instructed under CALJIC
No. 2.90 that the prosecution had to prove defendant’s guilt beyond a
reasonable doubt, and the jury knew from defense counsel’s argument the defense
theory that [a third party], not defendant, had committed the crimes.  Under these circumstances, it is not
reasonably probable that had the jury been given defendant’s proposed pinpoint
instruction, it would have come to any different conclusion in this case.”  (Ibid.)

                        In People v. Hartsch (2010) 49 Cal.4th 472, 504, the Supreme Court
explained why third party culpability instructions are generally
ineffective:  “We have noted that similar
instructions add little to the standard instruction on reasonable doubt.  [Citation.] 
We have also held that even if such instructions properly pinpoint the
theory of third party liability, their omission is not prejudicial because the
reasonable doubt instructions give defendants ample opportunity to impress upon
the jury that evidence of another party’s liability must be considered in
weighing whether the prosecution has met its burden of proof.”  (See People
v. Gonzales (2012) 54 Cal.4th 1234, 1277, [holding the trial court did not
err by denying defendant’s request for a third party liability instruction when
counsel never offered proposed language for such an instruction, but “[i]n any
event,” the instruction omission was harmless in light of reasonable doubt
instructions given to the jury].)

                        In People v. Gutierrez (2009) 45 Cal.4th 789, 825, the Supreme Court
held that although the defendant had testified others were responsible for the
victim’s death, any error in not giving a third party culpability instruction
was harmless because “[t]he jury was instructed on reasonable doubt and burden
of proof, and could have acquitted defendant had it believed defendant’s testimony.” 

                        Here, even assuming the
trial court erred by refusing to give the jury the special instruction, any
such error would be harmless as it is not reasonably probable the jury would
have arrived at a different verdict had it been so instructed.  The jury was instructed on reasonable doubt
and the burden of proof in the form of
CALCRIM No. 220, circumstantial and direct evidence in the form of CALCRIM
Nos. 223 and 224, and eyewitness identification in the form of CALCRIM
No. 315.  As in People v. Earp, supra, 20
Cal.4th at page 887, the jury knew from Contreras’s trial counsel’s
closing argument the defense theory that the charged offenses were committed by
another man (not Contreras) whose DNA was found on the red beer can.  In addition, the evidence of Contreras’s DNA
on A.F. and the eyewitness testimony of A.F. and A.H. inform our decision on
harmless error.  We find no prejudicial
error.

 

II.

Contreras’s Argument the Trial Court’s Stray
Comment Regarding Contreras’s Likely Ineligibility for Postsentence Conduct
Credit Must Be Stricken Is Without Merit.

                        In
his opening brief, Contreras contends the trial court erred by stating at the
sentencing hearing, “its understanding with counsel that [Contreras] is not
entitled to any post-sentence credit.” 
Contreras argues, “[t]he record does not reflect the legal basis for the
court’s statement and there is no mention of the matter in the Abstract of
Judgment. . . . The post-sentence conduct credits bar under section
2933.5 only applies to defendants with prior convictions.  There is no mention in the One Strike Law of
any conduct credits bar or limitation. 
[Citations.]  [¶] [Contreras]
requests that the erroneous statement of law be corrected in this Court’s opinion.” 

                        At
the sentencing hearing, after calculating Contreras’s presentence credit, which
Contreras does not challenge, the trial court stated, “I’m obliged to inform
you that the law provides for conduct and work time credits of up to one-third
or one-half off the sentence that’s imposed by the court.  Those credits are ordinarily calculated by
the Department of Corrections, and in your case, if there are any credits due
you, they will be calculated by the Department of Corrections.  [¶] The attorneys are in agreement that for
the nature of your crime, no credits are likely to be awarded to you post
sentence.”

                        The
trial court’s comment regarding that it was unlikely the Department of
Corrections and Rehabilitation would award Contreras postsentence credit was of
no legal effect, but merely a stray comment. 
Contreras does not assert that the trial court issued an order denying
any award of such postsentence credit or that the court should have issued an
order on the subject.

                        Furthermore,
Contreras has failed to demonstrate he was entitled to receive postsentence
conduct credit against the indeterminate prison sentence that was imposed in
this case.  In In re Cervera
(2001) 24 Cal.4th 1073, 1078, the California Supreme Court analyzed whether a
person sentenced to an indeterminate
life term under sections 667 and 1170.12 is eligible for postsentence prison conduct credit.  In
that case, the Supreme Court stated: 
“Credits of any sort are available only if, and to the extent that, they
are authorized.  In the absence of
authorization for use against indeterminate terms, article 2.5 prison conduct credits are simply
unavailable.”  (In re Cervera, supra, at
p. 1079.)  Contreras has failed to
cite to any legal authority or provide any legal analysis showing that he might
be eligible for postsentence conduct credit notwithstanding the indeterminate
prison sentence.

                        As
the trial court did not issue an order that, in any way, bound the Department
of Corrections and Rehabilitation in its calculation of postsentence conduct
credit, Contreras’s concern regarding the court’s stray comment rests on the
possibility of error, as opposed to demonstrated error.  We presume, in the absence of any evidence to
the contrary, that the Department of Corrections and Rehabilitation will
properly perform its official duty with regard to credit.  (People
v. Talton (1983) 145 Cal.App.3d 729, 733, fn. 3.)  We find no error.

 

DISPOSITION

                        The
judgment is affirmed.

 

 

                                                                                   

                                                                                    FYBEL,
J.

 

WE CONCUR:

 

 

 

O’LEARY, P. J.

 

 

 

THOMPSON, J.