P. v. Samaniego





















Filed 6/7/13 P. v. Samaniego 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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. JOSE ALBERTO SAMANIEGO, Defendant and Appellant.

G047097 (Super. Ct. No. 10HF1606) 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, James A. Stotler , Judge. Affirmed.

Robert L.S. Angres for
Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Peter Quon, Jr., and Theodore M. Cropley,
Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Jose Alberto Samaniego argues
that the trial judge should have told the jury that one of the charges against
him, digital penetration of his stepdaughter in violation of Penal Code section
288.7,href="#_ftn1" name="_ftnref1" title="">[1]
is a specific intent crime requiring, in addition to the act of penetration, the
purpose of sexual abuse, arousal or gratification. But the trial judge did instruct the jury the penetration count required the purpose of
sexual abuse, arousal or gratification.
He only misclassified the penetration count as a general intent crime,
not a specific intent crime. The error,
such as it was, was de minimis, and easily harmless beyond a reasonable doubt
under the Chapman standard.href="#_ftn2" name="_ftnref2" title="">[2] We affirm the judgment.

FACTS

Samaniego was convicted
of two counts arising out of the sexual molestation of his six-year-old
stepdaughter on the night of September
2, 2010. Count one was
violation of section 288.7, subdivision (b), sexual penetration of a child 10
years of age or younger. Count two was
violation of section 288, subdivision (a), lewd or lascivious act upon the body
of a child under the age of 14 years.
Samaniego admitted to touching the victim’s genital area, but denied any
penetration. Trial was solely focused on
count one, the sexual penetration count.


At trial, the victim,
then age seven, described the molestations.
Samaniego’s fingers went “inside” the “lip areas” of her genitals; Samaniego’s
fingers went “up and down in that area” or “kind of up and down” for “a little
long,” and it hurt. She further said his
fingers “mov[ed] around” “on the skin of [her] vagina.” Samaniego’s fingers felt “gooey.”

The victim also said
Samaniego’s fingers went “inside the butthole”
She said it also felt “like gooey.” And it also hurt. The total time was “a little long,” which she
estimated to be “two minutes or one.”

On href="http://www.mcmillanlaw.com/">cross-examination, however, the victim
admitted that at an indefinite point “earlier” she had told the prosecutor that
Samaniego’s finger “did not . . . [¶] actually go inside [her] vagina.”

Samaniego’s DNA
(probably from saliva) was found inside the victim’s underwear. Expert testimony established that it could
have come from his licking his fingers.
Samaniego’s DNA, however, was not found on the victim’s genitals.

The jury convicted
Samaniego on both the penetration and the lewd act counts. The jury also found true Samaniego engaged in
“substantial sexual conduct” with his victim, making him ineligible for
parole. (§ 1203.066, subd. (a)(8).) Samaniego was sentenced to 15 years to life
for the penetration count, with punishment stayed (see § 654) on the lewd
or lascivious act count.

DISCUSSION

On appeal, Samaniego raises but one
issue. He argues that the trial court
erred in instructing the jury, as part of CALCRIM No. 252, that sexual
penetration as alleged in count 1 was a “general intent crime.” Sexual penetration, he asserts, is actually a
specific intent crime requiring sexual abuse, arousal or gratification. (On that point he is correct, see >People v. McCoy (2013) 215 Cal.App.4th 1510,
1538 [“we conclude the crime of unlawful sexual penetration requires the
specific intent to gain sexual arousal or gratification or to inflict abuse on
the victim”].)href="#_ftn3" name="_ftnref3"
title="">[3] The error, he says, was prejudicial.

In point of fact, however, the trial
judge actually did tell the jury the sexual penetration count required it find
Samaniego had the additional purpose of sexual abuse, arousal or
gratification. In the present case,
CALCRIM No. 252, as given, specifically directs jurors to look to the “instruction
for that crime or allegation” to ascertain the act “required” to convict. And, soon after the trial judge gave CALCRIM No.
252, he also told the jury, in language substantively tracking section 289,
subdivision (k)(1): “‘Sexual penetration
means penetration, however slight, of the genital or anal opening of the other
person by any foreign object, substance, instrument, device or by any unknown
object for the purpose of sexual abuse,
arousal, or gratification.’”
(Italics added.)href="#_ftn4"
name="_ftnref4" title="">[4]

Any
claim of instructional error requires examination of the jury instructions as a
whole. (E.g., People v. Dieguez (2001) 89 Cal.App.4th 266, 276 [“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.”].) Jurors are also presumed to be sufficiently
capable of “‘correlating’” all jury instructions given. (People
v. Richardson
(2008) 43 Cal.4th 959, 1028.) Since the
jury was actually told sexual penetration must have the purpose of sexual
abuse, arousal or gratification, there was no danger Samaniego could have been
convicted for lewd touching of his stepdaughter’s genitals and anus absent a
sexual purpose.

Samaniego
is thus left with only the arid, academic misclassification of sexual
penetration under section 288.7 as a general intent rather than a specific
intent crime within the verbiage of CALCRIM No. 252.href="#_ftn5" name="_ftnref5" title="">[5] The misclassification was harmless beyond a
reasonable doubt.

Samaniego’s
argument for prejudicial error goes like this:
Given the erroneous misclassification of the penetration count as a
general intent crime, it is possible some jurors might have found any penetrat>ion of the victim’s vagina or anus was
merely “ancillary” to the lewd touching, and not done for the purpose of sexual
abuse, arousal or gratification.href="#_ftn6"
name="_ftnref6" title="">[6]

The
argument fails because of the undisputed
evidence that if Samaniego penetrated the victim, he did so with “gooey”
fingers and left saliva in her underwear – the reasonable inference is that
Samaniego was using his saliva as a crude lubricant to penetrate his victim,
i.e., he had a sexual purpose from the beginning. The argument also fails because the evidence
was undisputed that Samaniego’s touching was done long enough and vigorously
enough to cause real pain, which undercuts any thought of “superficial”
touching with no sexual purpose. And it
also fails because the undisputed evidence showed Samaniego moved his fingers
in a sexual and deliberate way (“kind of up and down” and moved “around”), again
wholly belying any claim of mere superficial or ancillary “touching” without a
sexual purpose.

We
would finally add that Samaniego overstates the possibility of the >absence of penetration. The sole record reference he gives us for the
proposition there was conflicting evidence of actual digital penetration (page
135 of the reporter’s transcript) only shows an absence of penetration of the
victim’s vagina, not any conflict as
to penetration. As the court pointed out
in People v. Quintana (2001) 89
Cal.App.4th 1362, penetration need not even include the vagina at all; any
penetration “inside the exterior of the labia majora” is sufficient. (Id.
at p. 1371.) No reasonable juror could
have reached some hypothetical “middle ground” of touching without a sexual
purpose; all the evidence pointed to deliberate penetration for a sexual
purpose.

DEPOSITION

The judgment is
affirmed.









BEDSWORTH,
J.



WE CONCUR:







O’LEARY, P.
J.







IKOLA, J.