Filed 12/18/17 P. v. Grazioli CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Butte)
----


THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH LOUIS GRAZIOLI,

Defendant and Appellant.
C073807

(Super. Ct. No. CM034269)





A jury convicted defendant Joseph Louis Grazioli of sexual penetration by a foreign object, forcible rape, and lewd act upon a child who was 14 or 15 years old. The trial court sentenced him to an aggregate prison sentence of 11 years 8 months.
Defendant now contends (1) the trial court abused its discretion by excluding evidence of prior sexual conduct between the complaining witnesses; (2) the trial court erroneously instructed the jury that the crime of sexual penetration by a foreign object was a general intent crime; (3) the count 4 lewd act conviction must be reversed because the People failed to prove beyond a reasonable doubt that the complaining witness was 14 or 15 years old at the time of the alleged offense; and (4) the trial court erred by failing to give a unanimity instruction on count 4.
We will reverse the conviction on count 4 and otherwise affirm the judgment.
BACKGROUND
C.O. was at her best friend H.B.’s house on February 25, 2011. C.O. met defendant at H.B.’s house. Defendant was the boyfriend of H.B.’s cousin. He lived in the guest house on the property of H.B.’s grandmother, with H.B.’s cousin and other family members. H.B. lived in the main house on the same property. C.O. told defendant she was 14 years old.
Defendant encouraged H.B. and C.O. to “[m]ake out.” He told the girls “ ‘it would be hot.’ ” C.O. and H.B. complied and defendant watched the two kissing. When the girls finished, defendant said, “ ‘[t]hat was hot.’ ”
C.O. left H.B.’s house at about 8:30 p.m. After C.O. left, defendant pushed H.B. down on the bed, spread her legs and said he was going to “ ‘go down on’ ” H.B. He said, “ ‘I want to lick your beautiful pussy.’ ” He said it probably tasted like candy. Defendant touched H.B.’s breast and buttocks and blew air onto her vagina over her clothing. H.B. pushed defendant away and told him to stop. Defendant stepped away.
H.B. called C.O. when defendant left her room. H.B. told C.O. defendant touched her sexually. H.B. was “freaked out.” According to H.B., prior to February 25, 2011, defendant grabbed her buttocks when they played pool at her mother’s house. H.B. did not tell anyone what happened because she did not want to cause “family drama.”
C.O. snuck out of her home at 10:00 p.m. and walked to H.B.’s house because she thought H.B. was scared and C.O. did not want H.B. to be alone with defendant. C.O. thought H.B. needed protection. C.O. stayed at H.B.’s house for one or two hours.
Defendant entered H.B.’s bedroom at some point. He and H.B. argued and H.B. cried. C.O. asked defendant to walk her home because she was afraid defendant would hurt H.B.
C.O. and defendant walked toward a park. C.O. was not familiar with that part of town and did not know where they were going. It was 12:30 a.m. As they continued walking, C.O. did not see houses or street lights. She was scared but did not know how to turn back. Defendant talked about running away together to San Diego or Las Vegas. He said C.O. could be a prostitute. He told C.O. that she had a nice butt, nice breasts and a really good figure. He touched C.O.’s buttocks while they walked.
Defendant showed C.O. a kitchen knife and a butterfly knife. He showed C.O. how to use a knife. Seeing the knives made C.O. scared even though defendant did not threaten her.
C.O. and defendant walked down a trail to a cliff area. Defendant cut C.O.’s hair with his knife, saying it would disguise her appearance so no one would recognize her. C.O. felt she could not leave because she did not want to upset defendant or cause him to hurt her.
Defendant told C.O. to get into a sleeping bag and C.O. complied. Defendant also got into the sleeping bag. He touched C.O.’s breasts and vaginal area under her clothing. He put three fingers inside her vagina, hurting C.O. He then asked C.O. to give him a “hand job.” C.O. touched defendant’s penis for about two minutes.
Defendant then asked if he could put himself inside C.O. C.O. did not want defendant to do that and said they could wait until they got to a hotel. Defendant responded, “ ‘We can’t wait. We shouldn’t wait.’ ” Defendant got on top of C.O. and put his penis in her vagina, hurting her. Defendant pulled out and ejaculated. He wiped his ejaculate with C.O.’s shirt. C.O. was bleeding from her vagina. She was not bleeding before that.
C.O. left the cliff area at about 6:00 a.m. She ran to a house by the park and asked for help. Paradise Police Department Officer Patrick Feaster responded to a report of a possible sexual assault near the park at 6:00 a.m. on February 26, 2011. C.O. was crying and appeared to be in fear. Chunks of her hair were missing.
C.O. told Officer Feaster she ran away from home because she had an argument with her parents. She said a stranger confronted her in the park, had her masturbate him and he ejaculated. She said the stranger also penetrated her vagina with his fingers. C.O. described her attacker and the location of her attack. She provided the officer with a small kitchen knife.
C.O. did not disclose that she had snuck out from her home and had gone to H.B.’s house. She did not mention that she had been raped.
Officer Feaster and another officer went to the park. Officer Feaster found defendant asleep in a sleeping bag. He saw chunks of hair and a pair of military pants on the ground. He searched defendant and found a butterfly knife in defendant’s pants pocket.
Later, Officer Feaster interviewed C.O. at the police department. C.O. disclosed that she met her attacker at H.B.’s house. C.O. said H.B. alleged defendant touched her.
In addition, Officer Feaster interviewed H.B. at her house on February 26, 2011, after interviewing C.O. H.B. had talked with C.O. before that interview. H.B. reported that defendant touched her inappropriately in her bedroom. She denied that defendant had touched her inappropriately prior to that incident. But she subsequently reported that defendant touched her inappropriately on a prior occasion.
Officer Feaster interviewed C.O. a third time on April 1, 2011. C.O. disclosed for the first time that she went to H.B.’s house after sneaking out of her home and that defendant had put his penis inside her vagina. C.O. told Officer Feaster she did not tell the officer about going to H.B.’s house because she did not want to get H.B. in trouble for harboring a runaway.
There was seminal fluid on the front of the black pants C.O. wore on the night of the incident, semen on C.O.’s sweatshirt, and blood in the crotch area of C.O.’s underwear. An expert on DNA forensic analysis opined that cuttings from stains on C.O.’s sweatshirt and black pants contained DNA from defendant.
The jury convicted defendant of sexual penetration by a foreign object against C.O. (Pen. Code, § 289, subd. (i) - count 1), forcible rape against C.O. (§ 261, subd. (a)(2) - count 2), and lewd act upon a child against H.B. based on the February 25, 2011 incident (§ 288, subd. (c)(1) - count 4). The jury acquitted defendant of the count 3 charge of lewd act upon a child against H.B. based on the touching that occurred before February 25, 2011 (§ 288, subd. (c)(1)). The trial court sentenced defendant to an aggregate prison term of 11 years 8 months.
DISCUSSION
I
Defendant contends the trial court abused its discretion by excluding evidence of prior sexual conduct between C.O. and H.B. because such evidence was relevant to C.O.’s motive to fabricate and to whether defendant was responsible for the blood stain on C.O.’s underwear.
A
We begin with additional background facts. The People moved in limine to exclude evidence that C.O. and H.B. were in a dating relationship and that they engaged in sexual activity on the night of the alleged rape before C.O. left H.B.’s house with defendant. The People asked the trial court to exclude such evidence under Evidence Code section 352. Defendant opposed the People’s in limine motion and filed a motion pursuant to Evidence Code section 782 to admit the evidence.
The trial court conducted a hearing at which C.O. testified outside the presence of the jury. C.O. testified her relationship with H.B. started as a friendship and later became romantic. C.O.’s romantic relationship with H.B. continued for about two months after the incident with defendant, and C.O. and H.B. remained best friends. C.O. said she and H.B. “fooled around” and “made out” when she was at H.B.’s house the second time on the night of the alleged rape, but no penetration was involved. C.O. explained that “no penetration” meant there was “no fingering each other. Nothing was inside each other’s vagina.” C.O. said no object had penetrated her vagina prior to defendant’s acts.
The trial court granted the People’s in limine motion to exclude evidence that C.O. and H.B. were in a dating relationship and that they engaged in sexual activity, but the trial court ruled that evidence of C.O. and H.B.’s friendship was admissible to establish possible bias or motive to fabricate.
B
“Evidence of the sexual conduct of a complaining witness is admissible in a prosecution for a sex-related offense only under very strict conditions. A defendant may not introduce evidence of specific instances of the complaining witness’s sexual conduct, for example, in order to prove consent by the complaining witness.” (People v. Fontana (2010) 49 Cal.4th 351, 362 (Fontana).) But such evidence may be admissible in prosecutions involving sections 261 and 289, such as here, when offered to attack the credibility of a complaining witness or to explain injuries the prosecution alleges were the result of defendant’s conduct, provided its probative value outweighs the danger of undue prejudice and the defendant complies with the procedure set forth in Evidence Code section 782. (Evid. Code, § 782; Fontana, supra, at pp. 354, 362-363.)
Evidence Code section 782 requires the following: (1) the defendant must submit a written motion stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness and showing its relevancy in attacking the credibility of the complaining witness; (2) the motion must be accompanied by an affidavit, filed under seal, that contains the offer of proof; (3) if the court finds the offer of proof sufficient, it shall order a hearing out of the presence of the jury and at the hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant; and (4) if the court, following the hearing, finds that the evidence is relevant under Evidence Code section 780 and is not inadmissible under Evidence Code section 352, then the court may make an order stating what evidence may be introduced by the defendant and the nature of the questions to be permitted. (Fontana, supra, 49 Cal.4th at pp. 362-363.)
The Legislature enacted Evidence Code section 782 (added by Stats. 1974, ch. 569, § 1, p. 1388) to protect victims of sex-related offenses from surprise, harassment and unnecessary invasions of privacy. (Fontana, supra, 49 Cal.4th at p. 362.) Evidence Code section 782 vests broad discretion in the trial court to weigh the defendant’s proffered evidence prior to its submission to the jury, to resolve the conflicting interests of the alleged victim and the defendant and to exclude relevant evidence which is more prejudicial than probative. (People v. Casas (1986) 181 Cal.App.3d 889, 895-896.) “[O]ur courts have properly exercised the discretion afforded by Evidence Code section 782 ‘narrowly’ [citation], and we emphasize that ‘[g]reat care must be taken to insure that this exception to the general rule barring evidence of a complaining witness’ prior sexual conduct . . . does not impermissibly encroach upon the rule itself and become a “back door” for admitting otherwise inadmissible evidence.’ ” (Fontana, supra, at pp. 362-363.) We review a trial court’s ruling on the admissibility of a complaining witness’s prior sexual conduct for abuse of discretion. (People v. Bautista (2008) 163 Cal.App.4th 762, 782 (Bautista).)
C
We conclude the trial court did not abuse its discretion in excluding evidence of C.O. and H.B.’s prior sexual conduct. While evidence of C.O. and H.B.’s relationship was relevant to show possible bias by C.O. or H.B. (People v. Sweeney (1960) 55 Cal.2d 27, 39-44), defendant was able to elicit testimony at trial which could show such possible bias and motive to fabricate without having to introduce evidence that C.O. and H.B.’s relationship was sexual in nature. C.O. and H.B. testified they were best friends. There was evidence that C.O. learned defendant touched H.B. inappropriately and that C.O. was protective of H.B. C.O. admitted she “sometimes liked to act as a hero.” She admitted lying to Officer Feaster to protect H.B. C.O. and H.B. testified they talked before C.O. disclosed to Officer Feaster that she was at H.B.’s house on the night of the alleged rape and before Officer Feaster interviewed H.B., providing defendant the ability to argue that C.O. and H.B. had an opportunity to discuss what C.O. and H.B. would tell police. There was also evidence that C.O. told inconsistent stories about what happened. The record likewise shows H.B. provided inconsistent accounts about whether defendant had previously touched her inappropriately.
Moreover, defense counsel argued to the jury that C.O. had a motive to lie about defendant because she found out defendant did something to her best friend. Defense counsel characterized C.O. as a liar and a manipulator and urged the jury to reject her testimony. Defense counsel also urged the jury to reject H.B.’s testimony, suggesting that H.B. fabricated a story after she talked with C.O.
The trial court permitted defendant to present evidence about C.O. and H.B.’s close friendship, their bias, and their motive to fabricate, which allowed defendant to argue to the jury that C.O. and H.B. were not credible. Such evidence could show a motive to lie, regardless of whether C.O. and H.B.’s relationship was sexual. (Bautista, supra, 163 Cal.App.4th at pp. 782-783 [the sexual nature of the victim’s relationship with a boy was at best tangentially related to the victim’s bias or motive to lie].)
Defendant claims the inquiry about C.O. and H.B.’s sexual relationship “would have proceeded with little, if any, undue embarrassment to C.O. and H.B. or undue consumption of time.” We disagree. H.B. denied any dating or sexual relationship with C.O. Admission of the evidence defendant proffered would likely have required additional voir dire, as the prosecutor pointed out; elicited possibly conflicting testimony from C.O. and H.B. about the nature of their relationship and whether they engaged in sexual activities on the night of the alleged rape; and resulted in additional evidence to support or contradict C.O. or H.B.’s testimony on those subjects. The trial court acted well within its discretion under Evidence Code section 352 in determining that evidence of the sexual nature of C.O. and H.B.’s relationship would be more time consuming than probative.
Defendant argues for the first time on appeal that evidence of the intimate relationship between C.O. and H.B. was relevant to whether C.O. exaggerated in order to obtain H.B.’s sympathy and attention. We decline to address the claim because it was not raised in the trial court.
Defendant argued in the trial court that he was entitled to explore whether the sexual activity between C.O. and H.B. earlier in the evening could explain the blood found on C.O.’s underwear. But C.O. testified the sexual activity between H.B. and her did not involve any penetration of C.O.’s vagina. C.O.’s testimony was uncontradicted; defendant had an opportunity to cross-examine C.O. and he did not present additional evidence. The trial court did not abuse its discretion in granting the People’s in limine motion and denying defendant’s Evidence Code section 782 motion where the evidence presented did not support defendant’s offer of proof that evidence of the sexual relationship between C.O. and H.B. could explain the blood on C.O.’s underwear.
Defendant further contends the trial court violated his constitutional rights by excluding evidence of the sexual relationship between C.O. and H.B. “A trial court’s limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness’s credibility had the excluded cross-examination been permitted.” (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.) Here, the trial court allowed defendant to admit evidence of the close relationship between C.O. and H.B., albeit not the sexual nature of the relationship. Defendant was also allowed to argue bias and motive to fabricate. The jury would not have received a significantly different impression of C.O. or H.B.’s credibility had defendant been allowed to introduce evidence that C.O. or H.B. were in a sexual relationship. The exclusion of the sexual nature of C.O. and H.B.’s relationship did not violate defendant’s federal constitutional rights. (Id. at pp. 623-624; People v. Mincey (1992) 2 Cal.4th 408, 440 [“Application of the ordinary rules of evidence, as the trial court did here, does not impermissibly infringe on a defendant’s right to present a defense”]; People v. Mestas (2013) 217 Cal.App.4th 1509, 1517.)
II
Defendant next argues the trial court erroneously instructed the jury that the crime of sexual penetration with a foreign object (§ 289, subd. (i) -- count 1) was a general intent crime.
Except as provided in section 288 (lewd or lascivious act upon a child), any person over 21 years of age who participates in an act of sexual penetration with another person who is under 16 years of age is guilty of a felony. (§ 289, subd. (i).) As pertinent here, sexual penetration is the penetration, however slight, of the genital opening of any person for the purpose of sexual arousal, gratification or abuse by any foreign object. (§ 289, subd. (k)(1).) A foreign object includes any part of the body except a sexual organ. (§ 289, subd. (k)(2).)
The crime of sexual penetration by a foreign object is a specific intent crime. (People v. McCoy (2013) 215 Cal.App.4th 1510, 1538.) In particular, it requires specific intent to gain sexual arousal or gratification or to inflict abuse on the victim. (Ibid.) “A trial court has a sua sponte duty to instruct a jury on specific intent when the offense requires it.” (People v. Ngo (2014) 225 Cal.App.4th 126, 162 (Ngo).) The trial court here instructed the jury, pursuant to CALCRIM No. 252, that the crime of sexual penetration by a foreign object was a general intent crime. That instruction was erroneous, as the Attorney General concedes. (Ngo, supra, at pp. 161-162.) We conclude, however, that the error was harmless under any standard.
The trial court told the jury to consider all of the instructions together. It said the People must prove not only that the defendant did the acts charged, but also that he acted with a particular intent, and the instruction for each crime explained the intent required. The trial court instructed the jury, pursuant to CALCRIM No. 252, “For you to find a person guilty of these crimes, that person must not only commit the prohibited act or fail to do the required act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act on purpose; however, it is not required that he or she intend to break the law. The act required is explained in the instruction for the crimes.”
The trial court incorrectly stated that sexual penetration by a foreign object was a general intent crime, but it instructed the jury on the elements for that crime, pursuant to CALCRIM No. 1101, as follows: “The defendant is charged in [c]ount 1 with participating in an act of sexual penetration with a person who was under the age of 16 years at a time after the defendant had reached his 21st birthday. [¶] To prove the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant participated in an act of sexual penetration with another person; [¶] Two, the penetration was accomplished by using a foreign object; [¶] Three, the defendant was at least 21 years old at the time of the act; [¶] And four, the other person was under the age of 16 years at the time of the act.” The trial court said sexual penetration was “penetration, however slight, of the genital or anal opening of the other person for the purpose of sexual abuse, arousal, or gratification.” Even if the CALCRIM No. 1101 instruction does not use the word intent, defendant concedes the instruction included language relating to specific intent.
Considering the above instructions together, the jury was instructed that in order to find defendant guilty of sexual penetration by a foreign object the jury had to find that defendant penetrated C.O.’s vagina on purpose and for the purpose of sexual abuse, arousal, or gratification. (Ngo, supra, 225 Cal.App.4th at pp. 162-163.) The jury would have understood from the instructions given that the prosecution must prove and the jury must find that defendant acted for the purpose of sexual abuse, arousal, or gratification.
In addition, there was overwhelming evidence that defendant acted for the purpose of sexual arousal or gratification. As defendant and C.O. walked into the park, defendant touched C.O.’s buttocks and commented that she had a nice butt and nice breasts. He led her to a secluded area where he touched her intimately before digitally penetrating her and performing other sex acts with her. Defendant conceded at trial that he did something wrong with C.O. that caused him to ejaculate. A properly instructed jury could not have found, based on the evidence presented, that defendant inserted his fingers in C.O.’s vagina for a purpose other than sexual arousal or gratification or that defendant did not act on purpose. Accordingly, the instructional error was harmless. (Ngo, supra, 225 Cal.App.4th at p. 163; People v. Lyons (1991) 235 Cal.App.3d 1456, 1458-1462 [error in instructing the jury that § 136.1 (attempting to dissuade the victim from testifying) was a general intent crime was harmless where another instruction informed the jury of the elements of the crime, including the requisite intent]; contra, Ho v. Carey (9th Cir. 2003) 332 F.3d 587.)
Defendant also argues the trial court erred by not defining “ ‘sexual abuse.’ ” Defendant cannot raise that claim on appeal because he asked the trial court to strike the definition of sexual abuse from the CALCRIM No. 1101 instruction given. “When a defense attorney makes a ‘conscious, deliberate tactical choice’ to forego a particular instruction, the invited error doctrine bars an argument on appeal that the instruction was omitted in error.” (People v. Wader (1993) 5 Cal.4th 610, 657-658.)
III
Defendant further claims the count 4 lewd act conviction must be reversed because the People failed to prove beyond a reasonable doubt that H.B. was 14 or 15 at the time of the alleged offense.
“ ‘In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we “examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] “[I]f the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.” [Citation.] We do not reweigh evidence or reevaluate a witness’s credibility.’ ” (People v. Nelson (2011) 51 Cal.4th 198, 210.)
To prove that defendant was guilty of the count 4 charge of violating section 288, subdivision (c)(1), the People had to prove defendant committed the act prohibited in that statute upon a child who was 14 or 15 years old. (§ 288, subd. (c)(1).) There was no evidence presented at trial to support a reasonable and nonspeculative inference that H.B. was 14 or 15 years old on February 25, 2011.
H.B. testified she was 16 years old at the time of her trial testimony (March 28, 2013). She did not state her birth date or her age at the time of the charged offenses. C.O. also did not testify about H.B.’s birth date, how old H.B. was on February 25, 2011, or whether H.B. was older, younger, or the same age as her. The jury could conclude H.B. was born on or before March 28, 1997, but there was no other evidence of H.B.’s age presented at the trial.
If H.B. was born during the period February 26, 1997, through March 28, 1997, she would have been 13 years old at the time of the offense (Feb. 25, 2011) and 16 at the time she testified at trial and not covered under section 288, subdivision (c)(1). On this record, the jury could not have found beyond a reasonable doubt that H.B. was 14 or 15 years old at the time of the offense. Accordingly, the judgment on count 4 must be reversed. (People v. Mejia (2007) 155 Cal.App.4th 86, 97.)
The Attorney General argues the jury could reasonably deduce that H.B. was 14 years old on February 25, 2011, because H.B. testified she and C.O. had been best friends since H.B. was a freshman in high school and C.O. was 14 years old when defendant raped her. But there is no evidence whether C.O. was the same age as H.B., even if one assumes that C.O. was also a high school freshman when H.B. was a freshman. Citing Education Code section 48010, the Attorney General argues the jury could reasonably conclude that by February 25 of the 2011-2012 school year even those freshmen admitted when 13 years old in August or September 2010, had turned 14 by February 2011. The Attorney General’s premise, however, requires the jury to assume that H.B. was not admitted to kindergarten early (Ed. Code, § 48000) or did not skip a grade. While a judgment may be based on inferences drawn from the evidence, inferences must be reasonable and an inference is not reasonable if it is based on speculation. (People v. Holt (1997) 15 Cal.4th 619, 669.)
Because we conclude insufficient evidence supports the count 4 verdict, we do not address defendant’s claim that the trial court erred by failing to give a unanimity instruction on count 4.
DISPOSITION
Defendant’s count 4 lewd act conviction is reversed and the sentence thereon is vacated. The judgment is otherwise affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.



MAURO , J.



We concur:



RAYE , P. J.



NICHOLSON , J.