P. v. Valdez









Filed 4/26/17 P. v. Valdez CA4/1






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

GEORGE VALDEZ,

Defendant and Appellant.

D068706



(Super. Ct. No. SCN331051)
APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant George Valdez was convicted of multiple offenses growing out of the abuse of his former stepdaughter and his stepdaughter's younger friend. The abuse of the stepdaughter began when she was six years old, continued until she was 12 years old and involved multiple acts of vaginal and anal intercourse as well as oral copulation; Valdez's abuse of his stepdaughter's friend began when the second victim was eight and involved digital penetration, attempted sodomy, sodomy and separate lewd acts.
Valdez was sentenced to an aggregate term of 370 years to life and a consecutive determinate sentence of 14 years 8 months.
On appeal, Valdez argues the trial court erred in failing to excuse a prospective juror for cause and in failing to provide him with additional peremptory challenges; he further argues his attorney was ineffective in failing to use a peremptory challenge to excuse the juror he believes was unduly biased. We find no abuse of discretion in the trial court's unwillingness to excuse the challenged juror for cause or to provide Valdez with additional peremptory challenges. We also find counsel acted reasonably in using his remaining peremptory challenge on another prospective juror.
Contrary to Valdez's final contention, the trial court did not err in staying a two-year concurrent sentenced it imposed for his conviction of making a criminal threat.
FACTUAL AND PROCEDURAL BACKGROUND
Valdez met Jane Doe's mother in 2005, when, although he was serving in the United States Marine Corps, they were both working at a local drugstore. Valdez married Jane's mother in 2007, when Jane was five. According to Jane, when she was six Valdez began molesting her, including a continuing practice of penetrating her vagina with his penis and ejaculating; Jane stated that Valdez had vaginal sex with her "too many times to count" and that he began sodomizing her when she was nine. Although he had intercourse with Jane on numerous occasions, he only used a condom twice, and, at one point when she was 10 and had begun menstruating, Valdez took her to a drugstore and obtained a "morning after pill" for her. Jane also testified that Valdez told her that if she told anyone about what he did he would hurt her.
Jane's friend Jane Doe II (Jane II) was a neighbor and two years younger than Jane; Jane II was frequently at Jane's house. When Jane II was eight, Valdez approached her, pulled down her pants and digitally penetrated her; in a second incident, Valdez walked into a room where she was, took down Jane II's pants, turned her around and sodomized her. On a third occasion Valdez isolated Jane and Jane II in a room and raped Jane and forced Jane II to watch; during this incident, he also attempted to sodomize Jane II.
When Jane was 12, she reported the abuse to her mother; her mother, in turn, contacted law enforcement. In a monitored and recorded telephone conversation between Jane and Valdez, Valdez admitted he had sexually abused Jane and Jane II.
As we indicated, Valdez was charged with and convicted of multiple sex and related offenses.[1]
I
A. Jury Selection
During jury selection, two prospective jurors—Nos. 80 and 81, among others—were subject to questioning about their possible bias.
1. Prospective Juror No. 80
Prospective Juror No. 80 disclosed that her niece had been molested by a neighbor and that, although the police did not believe her niece, later another child reported being molested and an investigation disclosed multiple molestations. In light of that circumstance, in responding to a standard voir dire question as to whether she could be fair and impartialProspective Juror No. 80 stated, "I would really have difficulty because I would be tending to listen to the kids and probably believe them considering what happened to my niece."
2. Prospective Juror No. 81
In response to the trial court's uniform voir dire questions, Prospective Juror No. 81 said she was retired, had two grown children and helped them raise her four grandchildren. With respect to whether she could be fair and impartial, Prospective Juror No. 81 stated:"I don't know if I can be really impartial because of my grandchildren." However,Prospective Juror No. 81 also indicated she could follow the laws of California as provided to her by the trial court.
3. Counsel's Examination
Both prospective jurors were subject to further examination by defense counsel. First, counsel asked Prospective Juror No. 81 about the "issues" she mentioned in her initial response,and she responded, "Yes. Yes, I'm sorry to say. And any other case I' [sic] be fine with. But having helped raise four grandchildren here, with 25 counts and I raising kids, I have a tendency after a while you do believe them. And so I would have a problem with that I'm sorry to tell you that."
Defense counsel then asked, "What would you be sorry for?" Prospective Juror No. 81 stated: "Telling you the truth." Defense counsel responded:"What you should be sorry for is if you felt that way, and then answered the way, no, I don't have any problems, because that would be the problem. So what you're saying is, look, in any other case I could follow those laws, in this particular case I can't do that job?"Prospective Juror No. 81 responded, "Correct."
Defense counsel then turned to Prospective Juror No. 80.Counsel asked, "[h]ow about you, Juror No. 80? You mentioned that you had some concerns because of your —the history. I don't want to necessarily go into any of that history. I don't need to know details, I just need to know what effect it's having on you. Do you think that you are a juror that can do this job and follow the law which is presume that the person is innocent even though you heard all of the charges, understand that you have to judge the credibility of those people even if they're children, or would your experience make you say, look, because of my experience and no one believed my —didn't believe my niece, I'm going to believe these kids no matter what?"Prospective Juror No. 80 responded:"I wish that wasn't true that I would believe these kids no matter what, but I probably would tend to."Defense counsel then moved on to question other prospective jurors.
Shortly thereafter at sidebar, Valdez's counsel challenged both Prospective Juror No. 80 and Prospective Juror No. 81 for cause. The trial court granted the challenge as to Prospective Juror No. 80, but denied it as to Prospective Juror No. 81.[2] Valdez's counsel then asked that he be given additional peremptory challenges on the grounds that the trial court had erroneously denied his requests that three other jurors be excused for cause. The trial court denied Valdez's request for additional peremptory challenges, and Valdez used his one remaining peremptory challenge on a third prospective juror, Prospective Juror No. 76.
B. The Trial Court Properly Rejected the Challenge to Prospective Juror No. 81
As we indicated, on app0eal Valdez argues the trial court should have excused not only Prospective Juror No. 80 for cause, but Prospective Juror No. 81 as well. Valdez's argument fails for two reasons.
First, in order to preserve a claim that a juror should have been excused for cause, a litigant must himself or herself use an available peremptory challenge to remove a prospective juror from the jury. (People v. Jones (2012) 54 Cal.4th 1, 45; People v. Maury (2003) 30 Cal.4th 342, 379 (Maury).) Here, the record shows that following the trial court's ruling granting Valdez's challenge as to Prospective Juror No. 80 and denying it as to Prospective Juror No. 81, Valdez's counsel used his one remaining challenge on Prospective Juror No. 76. On appeal, Valdez agrees Prospective Juror No. 76 was not subject to challenge for cause. Thus, having used an available peremptory challenge on another juror, Valdez did not preserve his challenge for cause to Prospective Juror No. 81. (Ibid.)
However, even if Valdez had properly preserved his challenge to Prospective Juror No. 81, we would find no error in the trial court's determination that Prospective Juror No. 81, notwithstanding her concerns, could be fair and impartial juror. The record shows Prospective Juror No. 81 affirmatively stated she could follow the trial court's instructions as to the law; her later somewhat contradictory response to counsel's leading question to the effect that it would be difficult for her, as a grandmother, to disbelieve the testimony of children, did not per se disqualify her. Rather, in this context, it was for the trial court to resolve the import of the juror's somewhat conflicting statements. (People v. Gonzales (2012) 54 Cal.4th 1234, 1285; Maury, supra, 30 Cal.4th at p. 380.)
C. Peremptory Challenges
Following the trial court's disposition of Valdez's challenge to Prospective Juror No. 81, he asked that he be given an additional peremptory challenge. He argued that, in light of the trial court's ruling on his challenges for cause, he should be given at least one additional challenge with respect to three other jurors. The trial court declined this request as well.
Although a trial court may, in its discretion, provide a litigant additional peremptory challenges, we may not disturb its ruling on a request for additional peremptory challenges absent a showing of clear abuse. (People v. Niles (1991) 233 Cal.App.3d 315, 321.) Here, the trial court's rejection of Valdez's challenges for cause, including his challenge to Prospective Juror No. 81, did not warrant any additional peremptory challenges.
D. Effective Assistance of Counsel
Next, Valdez argues his counsel was ineffective in failing to use his peremptory challenge on Prospective Juror No. 81, rather than Prospective Juror No. 76. Admittedly, by using his remaining peremptory challenge on Prospective Juror No. 76, counsel effectively forfeited Valdez's ability to raise, on appeal, the trial court's rejection of his challenge for cause to Prospective Juror No. 81. (See Maury, supra, 30 Cal.4th at p. 379.) However, as we have determined, the trial court did not abuse its discretion in rejecting the challenge for cause to Prospective Juror No. 81, and, thus, counsel's tactical choice did not deprive Valdez of any otherwise meritorious claim. Because neither juror was subject to a valid challenge for cause, counsel's choice was entirely tactical. Counsel's tactical decisionof removing Prospective Juror No. 76 rather than Prospective Juror No. 81 from the jury will not support a claim of ineffective assistance of counsel. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 48; People v. Anderson (2001) 25 Cal.4th 543, 569-570.)
II
Finally, we reject Valdez's contention the trial court erred in failing to stay his two-year sentence for making a criminal threat under Penal Code section 654. He argues that his repeated threats to harm Jane were indivisible from his repeated forcible sex acts and therefore should have been stayed under Penal Code section 654. We disagree.
Penal Code section 654 limits punishment for multiple convictions arising out of either an act or omission, or a course of conduct, deemed to be indivisible in time where the accused had only a single principal objective. (People v. Beamon (1973) 8 Cal.3d 625, 639.) "The initial inquiry in any section 654 application is to ascertain the defendant's objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (Ibid.)"[I]n determining whether Penal Code section 654 applies, the trial court is entitled to make any necessary factual findings not already made by the jury."(People v. Centers (1999) 73 Cal.App.4th 84, 101.)"The question of whether the defendant held multiple criminal objectives is one of fact for the trial court, and, if supported by any substantial evidence, its finding will be upheld on appeal." (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.)
Jane testified to both Valdez's repeated sexual abuse of her and his threats to harm her. As we interpret her testimony, many, if not all, of the threats were made, not while he was performing the sex acts, but separated in time from when they occurred. Importantly the tenor of the threats—"I will harm you if you tell anyone"—show that the threats were made not as a means of acquiring Jane's consent to the sex acts, but with the separate and distinct intent of preventing anyone from discovering them. Thus, the trial court could reasonably conclude the threats were divisible and could be separately punished.
DISPOSITION
The judgment of conviction is affirmed.


BENKE, Acting P. J.

I CONCUR IN THE RESULT:



HALLER, J.

I CONCUR:



O'ROURKE, J.




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[1] A jury convicted Valdez of 23 counts as follows: sexual intercourse with a child 10 years old or younger (Pen. Code, § 288.7, subd. (a); counts 1, 2); sodomy of a child 10 years old or younger (Pen. Code, § 288.7, subd. (a); counts 3, 4, 18, 19); oral copulation with a child 10 years old or younger (Pen. Code, § 288.7, subd. (b); counts 5, 6); sexual digital penetration of a child 10 years old or younger (Pen. Code, § 288.7, subd. (b); count 7); rape of a child under 14 years old and more than seven years younger than defendant (Pen. Code, § 269, subd. (a); counts 8, 9); sodomy of a child under 14 years old and more than seven years younger than defendant (Pen. Code, § 269, subd. (a); counts 10, 11); oral copulation of a child under 14 years old and more than seven years younger than defendant (Pen. Code, § 269, subd. (a); count 12); forcible lewd act upon a child under 14 years old (Pen. Code, § 288, subd. (b)(1); counts 13, 14, 15, 22, 23); felony child abuse (Pen. Code, § 273a, subd. (a); count 16); making a criminal threat (Pen. Code, § 422; count 17); and attempted sodomy of a child 10 years old or younger (Pen. Code, §§ 664, 288.7, subd. (a); counts 20, 21).
The jury found true 13 allegations defendant committed lewd and lascivious acts against more than one victim (Pen. Code, § 1203.066, subd. (a)(7)), four allegations of substantial sexual conduct with a victim under 14 years old (Pen. Code, § 1203.066, subd. (a)(8)), and five "one strike" allegations (Pen. Code, § 667.61, subd. (j)(2)).
[2] At sidebar, there was some confusion as to the identities of Prospective Juror No. 80 and Prospective Juror No. 81. After counsel challenged Prospective Juror No. 81 for cause, the following colloquy occurred:
"The Court: Eighty-one, that's the other lady.
"[Defense Counsel]: That's the other lady.
"The Court: That's the grandmother.
"[Defense Counsel]: Okay.
"The Court: What's your argument?
"[Defense Counsel]: She flatout [sic] said I can't be fair in the case.
"The Court: That's No. 80. No. 81 said I'm a grandmother, I've raised four kids, she didn't flatout [sic] say she couldn't be fair. That's not my recollection; may be yours.
"[Defense Counsel]: I thought I asked her the question, in this type of case would you be able to follow the law regarding proving the person -- that may [sic] presumption of innocence or believing and kids. She said, I couldn't believe the person innocent and that she individually would believe the kid because of my I wanted to do it but I do [sic]-- "The Court: I think you're confusing -- I'm denying as to 81. As to 80.
"[Defense Counsel]: Challenging for cause on 80."
The prosecutor agreed with defense counsel's challenge for cause to Prospective Juror No. 80, and the trial court granted it.