P. v. Flores>























Filed 5/9/13 P. v. Flores
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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. JAVIER BIBO FLORES, Defendant and Appellant.

G046256 (Super. Ct. No. 09NF0041) 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, Frank F. Fasel, Judge.
Affirmed.

R. Clayton Seaman, Jr.,
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, Melissa Mandel and Eric A. Swenson, Deputy
Attorneys General, for Plaintiff and Respondent.



*
* *

A jury convicted
defendant Javier Bibo Flores of one count of sexual acts with a child 10 years
old or younger (Pen. Code, § 288.7, subd. (b); all further statutory
references are to this code), plus one count each of misdemeanor assault,
battery (§§ 240, 242) and felony child abuse (§ 273a, subd. (a)). As to the latter charge, the jury also found
true an allegation of great bodily injury (§ 12022.7, subd. (d)). The court sentenced defendant to 15 years to
life. He contends the court erred by not
instructing the jury as to the union of act and specific intent (CALCRIM No.
251) on the first count. Although the
court should have given the instruction, considering the other instructions
given, the error was harmless beyond a reasonable doubt. We therefore affirm the judgment.



FACTS



Defendant is the father
of the victim. One evening, after the
victim’s mother came home from work, defendant took the victim, then seven
months of age, into the bedroom to change her.
Shortly thereafter, mother heard the victim cry. She went to the bedroom where she saw
defendant putting a diaper on the victim.
Defendant told mother he had cleaned her too hard.

Later when defendant and
mother went to bed the victim was sleeping in a nearby playpen. At some point, she started to cry. Defendant picked her up and took her into the
living room. The following morning,
defendant called mother and told her that something was wrong with the
victim. Mother examined her and found
blood inside her vagina.

Mother took the victim
to a hospital emergency room. Medical examinations
revealed lacerations to the vagina and anus, caused by “blunt force
trauma.” The victim also had a liver
laceration, three fractured ribs, fractures of two bones in her left arm,
bruises on her forehead, ribs, and abdomen.
In addition, she suffered lacerations

between
the vagina and anus, and her hymen was cut.
Dr. Daphne Wong testified the vaginal injuries had occurred within the
previous 24 to 48 hours before her examination.
She also concluded it was very likely two of the victim’s ribs were
fractured on or near the day the other injuries were inflicted.

After his arrest,
defendant was questioned by the police.
The interrogation was videotaped and transcribed. During the interrogation defendant admitted
he had inserted his finger into the victim’s vagina and may have inserted it
into her anus. He also stated he “felt
that something popped.” Defendant denied
he had inserted his penis into the victim’s vagina and denied he obtained
sexual gratification from his acts.



DISCUSSION



Defendant raises a
single issue: While the trial court
instructed the jury with CALCRIM No. 250 (Union of Act and General Intent), it
erred by failing to instruct with CALCRIM No. 251 (Union of Act and Specific
Intent) on count one. We agree the
failure to give CALCRIM No. 251 or CALCRIM No. 252 (Union of Act and
Intent: General and Specific Intent
Together) was error, but, in the light of other jury instructions given,
conclude it was harmless.

Section 288.7,
subdivision (b) provides a person, “18 years of age or older who engages in
. . . sexual penetration, as defined in Section 289, with a
child who is 10 years of age or younger is guilty of a felony
. . . .” “Sexual
penetration” is defined in section 289, subdivision (k)(1) as penetration “for
the purpose of sexual arousal, gratification, or abuse,” making the violation
of section 288.7, subdivision (b) a specific intent crime. CALCRIM No. 251 would have instructed the
jury that the crime charged “require[s] proof of the union, or joint operation
of act and wrongful intent.” The





instruction
could then have been used to state the specific intent that is required for the
crime. The court has a >sua sponte duty to give this instruction
where the crime requires a specific mental state such as involved here. (People
v. Alvarez (1996) 14 Cal.4th 155, 220.) That was not done in this case.

But in reviewing any
claim of instructional error, we must consider the jury instructions as a
whole, and not judge a single jury instruction in artificial isolation out of
the context of the charge and the entire trial record. (People
v. Haskett (1990) 52 Cal.3d 210, 235; People
v. Dieguez (2001) 89 Cal.App.4th 266, 276.) While the trial court failed to give CALCRIM
No. 251, its other instructions informed the jury of the requirement for a
concurrence of the act and specific intent.
(People v. Alvarez, supra,

14
Cal.4th at p. 220, fn. omitted [no prejudice in failing to include crime
of murder in instruction on concurrence of act and specific intent where
“[a]nother instruction expressly required intent to kill for murder of the
first degree under the theory of willful, deliberate, and premeditated
killing”].)

The court gave CALCRIM
No. 225, which stated in part, “[t]he People must prove not only that the
defendant did the acts charged but also that he acted with a particular intent
and/or mental state. The instruction for
each crime explains the intent and mental state required.” And, as the Attorney General points out,
CALCRIM No. 1128 was given, setting forth the elements essential to convict
defendant of violating section 288,7, subdivision (b). It defined the required sexual penetration as
“penetration however slight of the genital or anal opening of the other person
by any foreign object, substance, instrument, device or any unknown object >for the purpose of sexual abuse, arousal or
gratification.” (Italics
added.) The same instruction also
stated, “[p]enetration for sexual abuse
means penetration for the purpose of
causing pain, injury, or discomfort.” (Italics added.) We presume the jury followed the court’s
instructions. (People v. Thomas (2012) 53 Cal.4th 771, 832.)

Also, as noted by the
Attorney General, the prosecutor stated clearly in closing argument that before
the jurors could find defendant guilty of the charged crime, they would have to
find a sexual intent or intent to hurt the child. The mere failure of the court to use the
phrase “specific intent” does not detract from the fact that the jury >was instructed to find defendant guilty
of the crime, they would have to determine the penetration took place “>for the purpose of sexual abuse, arousal or
gratification,” or “for the purpose
of causing pain, injury, or discomfort.”
(Italics added.)

As to the latter
statement, we disagree with defendant that the reference to an intent to hurt
the child, as distinguished from a sexual intent, was an erroneous statement of
the law. The definition of “[s]exual
penetration” in section 289, subdivision (k)(1) covers “sexual arousal,
gratification, or abuse.” (Italics added.) And we agree with People v. White (1986) 179 Cal.App.3d 193, that “‘appellant
may not have had either of these “sexually motivated intents” and he still
would have violated the subdivision if his intent was to hurt [his victim] sexually,
i.e., in a sexual or “private” area of her body’” and “[t]he term ‘abuse’
imports an intent to injure or hurt badly, not lewdness . . . it
is the nature of the act that renders the abuse ‘sexual’ and not the
motivations.” (Id. at p. 205.) Defendant
admitted inserting his finger into the victim’s vagina and, while he denied
doing so for sexual gratification, it is clear from the evidence this touching
caused her pain.

On the anal penetration
charge (count 2), the jury found defendant guilty of the lesser included
offenses of assault and battery, which do not require a sexual intent. Defendant argues that “[t]his verdict
underscores the jurors’ confusion and the prejudice resulting from the failure
to properly instruct.” We do not accept
this speculation. This finding of the
lesser included offense may as well be explained as leniency on the part of the
jurors. (People v. Lewis (2001) 25
Cal.4th 610, 655-656 [inconsistent verdicts stand where supported by
evidence regardless of whether they result from leniency, compromise, or
mistake].)

DISPOSITION



The judgment is
affirmed.









RYLAARSDAM,
ACTING P. J.



WE CONCUR:







MOORE, J.







THOMPSON, J.