Filed 3/27/18 P. v. Tajimaroa CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

RUBEN TAJIMAROA,

Defendant and Appellant.


G054193

(Super. Ct. No. 15CF2172)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A Swenson, Allison V. Hawley and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
Ruben Tajimaroa was charged by information with five counts of lewd acts on a child under the age of 14 (Pen. Code, § 288, subd. (a); counts 1, 2, 3, 6, 7), and two counts of sexual intercourse or sodomy with a child 10 years old or younger (§ 288.7, subd. (a); counts 4, 5). The information included a sentence enhancement for committing specified sexual offenses against more than one victim. (§ 667.61, subds. (b), (e).)
A jury convicted defendant of counts 1, 2, 3, 4, 6, and 7, and found true the multiple victim sentence enhancement. The jury was unable to reach a verdict on count 5, and it was dismissed by the court. Defendant was sentenced to an indeterminate term of 40 years to life.
Although he does not challenge the jury’s verdict on counts 2 and 3, defendant argues counts 1, 4, 6, and 7 must be reversed due to instructional error. Specifically, he contends the court erred by giving a modified CALCRIM No. 1191 regarding the use of charged crimes as propensity evidence of other charged crimes. We reject defendant’s arguments, and affirm the judgment.
FACTS
1. Background
Defendant and M.T. (mother) met and married in Mexico. In 1998, mother gave birth to a daughter, A.T. In 2000, defendant left his family to work in the United States. Mother and A.T. joined defendant in the United States about four years later when A.T. was six years old. Mother gave birth to a second daughter, G.T., in 2007.
The relationship between defendant and mother soured in early 2015 when defendant was about 35 years old. At the time, A.T. was about 17 years old, G.T. had just turned eight. By June, mother asked defendant to move out of the family home. Defendant agreed to leave, and he moved into a nearby apartment where he rented a room from the tenant.
Between June and September, defendant picked up G.T. from her child care provider around 4:00 p.m. after he finished work for the day, and he would stay with A.T. and G.T. in their apartment until mother came home from work, usually around 6:00 p.m.
One Saturday in September, G.T. spent the night with defendant at his apartment for the first time. The following Monday, G.T. pointed to her crotch area and told her mother, “it hurts here” “but my dad didn’t do anything to me.”
About 10 days later, A.T. told mother defendant had molested her. A.T. reported that when she was between the ages of six and 12 or 13, defendant touched her body and vagina, video recorded her while she showered, and showed her pornography.
Mother took G.T. and A.T. to the police, and G.T. was subjected to a forensic sexual assault examination. G.T. had a urinary tract infection, but there were no obvious signs of sexual abuse.
Defendant was arrested at his apartment without incident. Police officers found a shoe box containing pornographic DVD’s in his room, but no apparent DVD player. No pornographic images or videos were found on defendant’s cell phone, but he did have pictures of G.T. fully clothed, wearing lipstick, and striking a “sexy pose[].”
2. Pretrial Statements
a. G.T.’s Child Abuse Services Team (CAST) Interview
A few days after defendant’s arrest, G.T. was interviewed by a member of CAST. The jury saw a recording of the interview, and they were given a transcript of the recording.
G.T. first told the interviewer she no longer had a father “[b]ecause he [did] bad things” to her. When asked about the recent incident, G.T. said her vagina hurt after she spent the night with defendant. She admittedly withheld information from her mother for a couple of days, and even denied defendant had done anything to her, because she was afraid her mother “might hit [her],” and defendant would “hit my mom.” However, G.T. later told her mother defendant put his penis in her vagina, and it hurt.
G.T. told the interviewer defendant put his penis in her vagina two or three times. G.T. said she took a shower before going to bed. She fell asleep, but woke up when defendant removed her clothing, and his own, rubbed her vagina, sucked her breasts two or three times, and kissed her neck “like . . . somebody sucking my . . . blood.”
G.T. explained how defendant had put his hand on her vagina and bottom, and he put his penis in her vagina and anus. G.T. said she felt something wet in her anus, and she told the interviewer defendant “peed . . . and pooped in my butt.” G.T. said defendant put his penis in her anus about two times.
G.T. also said defendant made her put her hand on his penis. G.T. told the interviewer she asked defendant to stop, but he would not stop. Defendant also took pictures of her without her clothes, and she could see her bottom and vagina in the pictures. G.T. accused defendant of showing her a video with “dirty women” doing “dirty things” with a “guy” “on top.” Defendant told her not to tell her mother what happened, or he would hit her in the mouth. G.T. also told the interviewer defendant broke all her teeth, and her mother had to take her to the dentist.
b. Defendant’s Pretrial Statement
Defendant was questioned by police following his arrest and waiver of Miranda (Miranda v. Arizona (1966) 384 U.S. 436) rights. The jury watched a recording of the interview and read a copy of the transcript.
Defendant admitted he had pornographic movies at his home. He claimed mother knew about them, but he denied showing the movies to G.T. Defendant denied showering with G.T., unless his wife was present, and he denied using G.T.’s hand to masturbate him.
Defendant admitted G.T. had spent the night with him at his apartment in September. Defendant did not have a bed, so they slept on the floor. Defendant and G.T. were lying on the floor, fully clothed, when G.T. “scratched herself” “on top of her panties” and over her vagina. She told defendant, “[D]ad, it hurts me here,” pointing to her vagina. Defendant told G.T. she should bathe more.
Defendant said he played an animated movie for G.T. while he took a shower. He dressed in the bathroom, and then took G.T. for a walk through the park and back to her mother’s house. Around 9:00 p.m., mother phoned defendant to ask him why G.T. was complaining of vaginal pain. Defendant denied doing anything to G.T., and he encouraged mother to take G.T. to the doctor. He also told mother he was willing to submit to a physical examination. When mother called defendant the next day, defendant, again, told mother to take G.T. to the doctor.
Even though a police detective lied and told defendant his DNA was found in G.T.’s vagina, defendant adamantly denied any improper contact with her. He told the police, “G[.T.] . . . knows that I never touched her.” Defendant, again, offered to submit to a physical examination, and he offered to take a lie detector test. Defendant told the interviewers he thought mother “[was] making [G.T.] say things that are not.”
On the other hand, defendant admitted that when A.T. was younger he showed her an adult pornographic movie, and video recorded her while she showered. When asked why he did this, defendant said, “[b]ecause of curiosity, I don’t know.”
Defendant denied putting his penis in A.T.’s mouth, but he admitted touching her belly, breasts, and vagina over her clothing. Defendant clarified he “did not . . . penetrate [A.T.] nor anything either.” He said, “it was not like a rape nor anything like that.” When asked why he did these things with A.T., defendant replied, “I don’t have an explanation.” Defendant said A.T. loved him and forgave him for “what [he] did to her.”
3. Trial Testimony
a. Forensic Examination
Forensic sexual assault nurse, Patricia Harris, conducted an examination of G.T. at the hospital G.T. cried “a great deal” during the examination, and she “didn’t really want to talk . . . [or] to be there.” When Harris asked G.T. why she thought she was in the hospital, G.T. shrugged her shoulders.
Harris took vaginal and anal swabs from G.T. for DNA analysis, even though DNA collection guidelines call for swabbing within 72 to 120 hours after an event. There were no visible injuries to G.T.’s hymen, vagina, or anus. However, Harris said the delay of 10 days meant any external injuries would have had time to heal.
Harris also said urinary tract infections “can occur if you do not drink enough fluids, if you have poor hygiene, if you have been rubbing yourself.” She conceded children often pass bacteria to themselves. Harris also noticed a “little bit of a whitish discharge [from G.T.’s vagina] which can be normal.”
b. A.T.’s Testimony
A.T. testified she lived in Mexico with her mother for about six years before she and her mother came to California to live with defendant. A.T. was six years old, and defendant started to molest her shortly after her arrival.
Defendant liked to bathe with A.T. On one occasion, defendant told A.T. he wanted to play a game with her during their bath. Defendant directed A.T. to shut her eyes, open her mouth, and guess what he put in her mouth. A.T. closed her eyes and opened her mouth. Defendant put something “soft” in her mouth that felt like skin. She did not know what it was at the time, but A.T. now believed it was defendant’s penis.
On another occasion, defendant pulled off A.T.’s towel as she came out of the shower, and A.T. saw him using his cell phone to record her while she took a shower. A.T. asked defendant why he recorded her in the shower and defendant explained that “he liked to see [A.T.] naked.”
A.T. was about nine years old when G.T. was born. When G.T. was old enough to walk, defendant would make G.T. leave the room so he could be alone with A.T. Defendant also showed A.T. pornography on his phone. Between the ages of six and 12 or 13, defendant touched and rubbed A.T.’s vagina with his hands, touched her breasts, and smacked her “butt” over her clothing.
During the summer between sixth and seventh grade, A.T. went to church and prayed for her “dad to change.” When she went to bed that night, defendant tried to touch her, but she told him about her prayer, and they both cried. Defendant got on his knees and apologized to A.T. He promised he would never touch A.T. like that again, and he kept his promise.
Throughout the years, defendant repeatedly told A.T. she could not tell her mother what they were doing. He warned A.T. that her mother would not like her anymore if she told. A.T. said defendant told her mother would “prefer him, not [her].”
Mother often asked A.T. if defendant ever touched her inappropriately, but A.T. had always denied it. She decided to tell the truth when her mother revealed defendant molested G.T. At that point, A.T. decided she did not “want anything else to happen to [her] sister.”
c. Mother’s Testimony
Mother testified G.T. came home from defendant’s apartment complaining of pain in her crotch area. When mother asked about the pain, G.T. said, “it hurts here but my dad didn’t do anything to me.” Mother thought G.T.’s response was odd, and she contacted defendant. Mother asked defendant, “what he had done to the child.” Defendant replied, “‘You are crazy. I did not do anything to her.’”
On Tuesday, G.T. again complained of vaginal pain, and Wednesday evening, mother took G.T. to a medical clinic. Although G.T. talked to a nurse’s assistant, no one examined G.T., or took any tests. Mother was simply directed to “come back on Friday.” A couple of days later, mother contacted police, and the police took A.T. and G.T. to a hospital in Tustin.


d. G.T.’s Testimony
G.T., who was about eight years old at the time of the incident, and nine years old when she testified, told the jury defendant touched her vagina with his penis one time. It happened the night she spent at defendant’s apartment. G.T. told defendant to stop, but he would not stop.
G.T. remembered seeing a nurse because her “privacy” hurt, and she remembered her CAST interview. However, when the prosecutor asked G.T. if she told the CAST interviewer the truth, G.T. responded, “No.” Under continued questioning, G.T. recalled a time when defendant put his hand under her shirt and touched her breasts. She denied defendant kissed her mouth, neck, and vagina. G.T. confirmed she had taken a bath, or shower at her father’s home, but she said defendant never showered with her.
Initially, G.T. denied defendant showed her pornography. However, she later testified pornography was “the boys will be humping in the girls’ privacy,” and she admitted defendant showed her something like that on his phone On cross-examination, G.T. admitted she had also made up stories, like the one about defendant knocking her teeth out.
e. Closing Arguments
The prosecutor focused on the allegations involving G.T. She attempted to bolster G.T.’s credibility by arguing G.T.’s CAST interview was more reliable than her testimony.
The prosecutor also emphasized the fact that defendant began molesting both girls when they were between six and eight years old. Pointing to CALCRIM No. 1191, the prosecutor asserted, “[L]et’s say you all agree that I have proved to you the charges on [the counts pertaining to A.T.] beyond a reasonable doubt and you find him guilty of those three charges, you are allowed to, under the law, use that fact that you find him guilty of [the offenses against A.T.], you’re allowed to use this as evidence that he committed the acts against [G.T.]”
Defense counsel acknowledged defendant’s admission to committing lewd acts with A.T., and she told the jury counts 2 and 3 were “not a big issue.” As for the remaining counts, defense counsel pointed to the discrepancies between G.T.’s CAST interview and her testimony. Defense counsel argued G.T.’s testimony was unreliable, and her CAST interview a fabrication.
Defense counsel also addressed propensity evidence by reminding the jury they could not “just say, ‘Well, if he did it to [A.T.], he must have done it to [G.T.]’ You can consider that propensity but you still have to be convinced beyond a reasonable doubt that the charges as to either of the girls occurred. So don’t be misled.” Defense counsel explained, “The fact that he touched [A.T.] is not sufficient by itself to find him guilty of the charges as to [G.T.] . . . . You are allowed to put that into your mix, you’re allowed to consider that he may be inclined to do something like that, but that by itself does not prove these charges to you beyond a reasonable doubt, and that burden is never reduced.”
DISCUSSION
Defendant contends the court’s modified CALCRIM No. 1191 violated his state and federal constitutional right to due process by invading the jury’s fact-finding role and lowering the People’s burden of proof. For reasons stated below, we disagree.
1. Background
The information alleged defendant violated section 288, subdivision (a) on three separate occasions with A.T. Count 1 alleged defendant orally copulated A.T., and counts 2 and 3 alleged defendant touched A.T.’s vagina.
With respect to G.T., the information alleged defendant twice had sexual intercourse with her (counts 4, 5), a violation of section 288.7, subdivision (a), and defendant violated section 288, subdivision (a), by touching G.T.’s breasts and vagina. (counts 6, 7).
The prosecutor submitted a proposed instruction on the use of charged sexual offenses as evidence of defendant’s propensity to commit other charged sexual offenses based on CALCRIM No. 1191. Defense counsel objected on constitutional grounds to the court giving any version of CALCRIM No. 1191. The court also expressed concern over the prosecutor’s proposed instruction.
However, the court modified CALCRIM No. 1191 with language taken from the approved jury instruction of Villatoro (People v. Villatoro (2012) 54 Cal.4th 1152, 1159 (Villatoro)), and the court gave the modified instruction over defense objection.
The court’s modified CALCRIM No. 1191 stated: “The People presented evidence that the defendant may have committed the crimes charged in this case. These crimes have been previously defined for you. If you decide that the defendant committed one of . . . these charged offenses, you may, but are not required to, conclude from the evidence that the defendant was disposed or inclined to commit the other charged crimes, and based on that decision also conclude that the defendant was likely to and did commit the other offenses. If you conclude that the defendant committed a charged offense, that conclusion is only one factor to consider along with all other evidence. It is not sufficient by itself to prove the defendant is guilty of another charged offense. The People must still prove each element of every charge beyond a reasonable doubt and prove it beyond a reasonable doubt before you may consider one charge as proof of another charge.” (Italics added.)
2. Analysis
CALRIM No. 1191 is the pattern instruction for the use of sexual propensity evidence under Evidence Code section 1108. Although character or propensity evidence is generally inadmissible to prove the person’s conduct on a specified occasion (Evid. Code, § 1101, subd. (a)), Evidence Code section 1108, subdivision (a), allows the jury to consider “evidence of the defendant’s commission of another sexual offense or offenses,” if those offenses are not made inadmissible by Evidence Code sections 1101 and 352. (Italics added.)
Evidence Code section 352 permits the court to exclude evidence “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Both charged and uncharged offenses may be considered by the jury. (Villatoro, 54 Cal.4th at p. 1164 [CALCRIM No. 1191 modified for use with charged offenses]; People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013 [CALCRIM No. 2.50.01, the predecessor to CALCRIM NO. 1191, referring to uncharged offenses].) The Attorney General argues there is no “relevant distinction” between the instruction approved in Villatoro and the one used in defendant’s case, and we agree.
In Villatoro, the defendant was charged with several offenses, including rape and sodomy, against five women over a three-year period. (Villatoro, 54 Cal.4th at p. 1156.) All but one of the five women testified at trial, and evidence concerning the sole victim who did not testify at trial came into evidence through her preliminary hearing testimony. (Id. at p. 1158.)
Without objection, the court gave the following modified version of CALCRIM No. 1191: “‘The People presented evidence that the defendant committed the crime of rape as alleged in counts 2, 4, 7, 9, 12 and 15 and the crime of sodomy as alleged in count 14. These crimes are defined for you in the instructions for these crimes.
“If you decide that the defendant committed one of these charged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit the other charged crimes of rape or sodomy, and based on that decision also conclude that the defendant was likely to and did commit the other offenses of rape and sodomy charged. If you conclude that the defendant committed a charged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendant is guilty of another charged offense. The People must still prove each element of every charge beyond a reasonable doubt and prove it beyond a reasonable doubt before you may consider one charge as proof of another charge.’” (Villatoro, 54 Cal.4th at p. 1167.)
On appeal, the defendant argued CALCRIM No. 1191 violated Evidence Code section 1108 because it allowed the jury to consider charged offenses, rather than uncharged instances of sexual misconduct, violated Evidence Code section 352, failed to identify the standard of proof required before the jury could consider a charged offense as propensity evidence, and failed to emphasize the presumption of innocence. (Villatoro, 54 Cal.4th at p. 1159.)
A majority of the California Supreme Court rejected each of the defendant’s arguments. The majority reasoned Evidence Code section 1108’s reference to evidence “‘not made inadmissible by Section 1101,’” and the fact Evidence Code section 1101, subdivision (b) had already been interpreted as applying to charged and uncharged crimes, favored construing Evidence Code section 1108 to apply “to both charged and uncharged sex[ual] offenses.” (Villatoro, 54 Cal.4th at p. 1161-1162.)
When the defendant argued Evidence Code section 1108’s reference to Evidence Code section 352 necessarily excluded charged offenses because charged offenses cannot be subject to a meaningful assessment of their probative value versus the probability for undue prejudice, the majority referred to a parallel provision governing propensity evidence in domestic violence cases (Evid. Code, § 1109).
The majority reasoned, “‘it is not the express inclusion of the reference to section 352 that matters; rather, it is the availability of the weighing process.’” (Villatoro, 54 Cal.4th at pp. 1162-1163.) In Villatoro, the majority decided the trial court’s statements demonstrated an awareness of the pertinent issues and that the court conducted an implicit weighing of Evidence Code section 352. (Villatoro, at pp. 1168-1169.)
Focusing on the Villatoro majority’s observation a defendant could be charged with multiple sex offenses that are dissimilar enough, or so remote or unconnected to each other, the jury should not consider one or more of the charged offenses as evidence that the defendant likely committed any of the other charged offenses (Villatoro, supra, 54 Cal.4th at p. 1163), defendant argues the court’s modified version of CALCRIM No. 1191 contains three “fatal flaws.”
Defendant asserts the instruction as given violates due process because it (1) refers to “the other charged crimes” collectively, not individually; (2) refers to “the other charged crimes” generically, rather than by type or category of crime; and, (3) fails to inform the jury to consider the degree of similarity, if any, between the charged offense supplying the sexual propensity evidence and another charged offense being considered.
We review a claim of instructional error de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569-570.) “‘“[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’”’ (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) “If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction.” (People v. Smithey (1999) 20 Cal.4th 936, 963; see Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.) “Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions.” (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Applying these principles, we find no error.
First, although the court’s modification did not specifically tell the jury to consider each charge separately, it did emphasize the People’s burden to “prove each element of every charge beyond a reasonable doubt and prove it beyond a reasonable doubt before you may consider one charge as proof of another charge.” This language squarely placed the burden of proof on the People, and restated their burden to prove beyond a reasonable doubt all the elements of each charged offense. Nothing in the court’s modified CALCRIM No. 1191 instructed the jury to consider the crimes collectively.
Plus, the court also gave CALCRIM No. 3515 (Multiple Counts: Separate Offenses). This instruction did specifically tell the jury “[e]ach of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one.” So in our view, the jury was adequately advised to consider each element of the charged crimes individually, not collectively.
Second, we reject defendant’s contention the court’s modified version of CALCRIM No. 1191 should have referred to the charged crimes by name. Defendant attempts to rely on Villatoro on this point, but the court in Villatoro only categorized the charged crimes both sexual and nonsexual offenses were alleged. (Villatoro, supra, 54 Cal.4th at p. 1159 [kidnapping and robbery in addition to five counts of rape].)
Here, only sexual offenses were alleged, and the instruction explicitly alerted the jury to other instructions defining the elements of the charged offenses. There was simply no need to categorize the charged offenses here. Plus, absent a prosecution for sexual and nonsexual crimes, and we see no benefit to defendant in restating the sexual offense charges by name in CALCRIM No. 1191.
Third, with respect to the jury considering the qualitative difference between lewd acts with a child (§ 288, subd. (a)) and sexual intercourse or sodomy with a child (§ 288.7, subd. (a)), defendant seems to believe the jury should undertake an Evidence Code section 352 analysis of the charged crimes before using one charged sexual offense as propensity evidence of another charged sexual offense.
However, the majority in Villatoro held the trial court must consider Evidence Code section 352 factors, not the jury. We are in no position to reconsider this aspect of the Supreme Court’s holding in Villatoro, supra, 54 Cal.4th at p. 1152. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Moreover, lewd acts with a child and sexual intercourse with a child are sufficiently similar to give rise to the permissible inference of sexual propensity. In both cases, the victims were young girls of a certain age, and defendant subjected them to multiple instances of a variety of lewd acts, which happened to include intercourse.
In sum, we perceive no instructional error.
Nevertheless, even assuming instructional error, reversal is not required unless the error results in a miscarriage of justice, i.e., there is a reasonable probability of a more favorable result absent the error. (People Olivas (2016) 248 Cal.App.4th 758, 773; People v. Whisenhunt (2008) 44 Cal.4th 174, 214 [“[i]nstructional error is subject to harmless error review,” “subject to the reasonable probability standard of harmless error”].) “‘“[W]e inquire ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” [Citation.]”’” (People v. Richardson (2008) 43 Cal.4th 959, 1028.)
Defendant expends considerable effort reviewing all the facts favorable to his position to argue there is a reasonable probability of a more favorable result. He discusses at length the two-year gap between his lewd conduct with A.T. and G.T., the differences between the various sex acts, the lack of physical corroboration of G.T.’s story, and G.T.’s admission she lied.
However, defendant admitted lewd conduct with A.T. when she was about the same age as G.T. The sisters also described similar acts by defendant, although defendant was more aggressive with G.T. The jury requested a readback of both A.T. and G.T.’s testimony. G.T. testified defendant penetrated her vagina one time, and not two or three times as she said in her CAST interview. The jury deadlocked on one of the counts of sexual intercourse, count 5. Obviously, the jury believed G.T.’s testimony despite the discrepancies with her CAST statement, and the verdict indicates the jury considered each individual offense separately.
Finally, the parties’ arguments told the jury the charges involved different acts and different victims, and that each act must be proved individually and under the beyond a reasonable doubt standard. Thus, even if the trial court had erred by not instructing the jury to consider the similarities or dissimilarities between the acts comprising any propensity evidence and the acts underlying any other charged offenses, defendant has failed to show a reasonable probability of a more favorable result in the absence of that purported error. (People v. Watson (1956) 46 Cal.2d 818, 836.)





DISPOSITION
The judgment is affirmed.



THOMPSON, J.

WE CONCUR:



ARONSON, ACTING P. J.



FYBEL, J.