P. v. Garcia

Filed 7/25/07 P. v. Garcia 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed.

Corinne S. Shulman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robert M. Foster and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.

Salvador Lara Garcia appeals from a judgment after a jury convicted him of sex-related offenses and found true sex-related enhancements. He argues there were instructional and sentencing errors. We agree there was instructional error, but conclude it was harmless. His other contention has no merit, and we affirm the judgment.

FACTS

Here, we give a brief summary of the facts for context. Below, we will discuss the facts in greater detail as to specific counts where needed.

Garcia lived with his wife, Lourdes Garcia, his daughters, 13-year-old L., and 11-year-old M., their two sons, and Lourdess father and uncle. When L. was approximately eight or nine years old, Garcia touched and moved his hand on her vagina for about five minutes over her clothes. Another time, Garcia took L. to the dentist in his van. He took her to the back of the van, had her lay down, and took her pants off. He touched her bare breasts and put two fingers in her vagina. He took her underpants off, turned her over, and put his penis in her vagina. Garcia had sexual intercourse with L. one other time in the van, and he touched her bare breasts and vagina four or five other times in the van. At home, L. was lying down when Garcia pulled down her pants, touched her breasts and vagina, and put his penis inside her vagina. The last time Garcia molested L. was in his van. He took her to the back of the van, had her lay down, took off her pants, touched her breasts and vagina, and touched her vagina with his penis without penetrating her. L. did not tell anyone because she was scared, embarrassed, and did not know what to do.

When M. was 10 years old, Garcia began molesting her. He touched her breasts with his hands and mouth. In the van, he touched her vagina and breasts more than 10 times. He also put his penis in her vagina while they were facing each other and from behind. He had her masturbate him approximately eight times, and he ejaculated on her hand. He wiped his hands and her hands on the vans seat. Garcia would also enter her bedroom at night while everyone slept, take off her clothes, and touch her breasts. He also orally copulated her. The last time Garcia molested M., he took her to the car wash in the van. He had anal intercourse with her until he ejaculated. He told her to not tell anyone. M. finally told her mother.

M. asked L. if he had done similar things to her. Lourdes spoke with her daughters and called the police. Forensic evidence showed Garcias semen was on the inside of the van and objects found in the van.

After waiving his Miranda[1] rights, Garcia denied inappropriately touching his daughters. He later admitted he touched them over their clothes about 10 times. He touched them in his van because there were always people in the house. Garcia claimed he did not know why he did it, he regretted it, he did not do it with bad intention, and he apologized to his daughters.

An information charged Garcia with the following offenses and enhancements. As to L., the information charged five counts of committing a lewd act upon a child under the age of 14 years (Pen. Code,  288, subd. (a))[2] (counts 1 through 5). With respect to M., the information charged seven counts of committing a lewd act upon a child under the age of 14 years ( 288, subd. (a)) (counts 6 through 9 and 11 through 13), and one count of committing a lewd act upon a child under the age of 14 years by force or fear ( 288, subd. (b)) (count 10). The information alleged Garcia had substantial sexual conduct with a victim under 14 years of age as to counts 6, 8, 9, 10, and 13 [3] ( 1203.066, subd. (a)(8)). The information also alleged he committed a lewd act on multiple children as to all the counts. ( 1203.066, subd. (a)(7), 667.61, subds. (b), (c)(7).)

Garcia offered the testimony of Jeanie Ming, a pediatric nurse practitioner. She testified there were no abnormal findings on either victim, but that a medical exam will rarely show whether sexual abuse occurred if the exam occurs 72 hours after the abuse has taken place.

The jury convicted Garcia on all counts except count 3. The jury found true the allegations Garcia had substantial sexual conduct with a victim under 14 years of age as to counts 6, 8, 9, and 10. The jury also found true he committed a lewd act on multiple children as to all counts except counts 8, 9, 10, and 12.

The trial court denied Garcia probation. The court sentenced Garcia to an indeterminate term of 36 years to life as follows: 15 years to life on count 1, a concurrent term 15 years to life on count 2, a concurrent term of 15 years to life on count 5, a consecutive term of 15 years to life on count 6, a consecutive term of six years on count 10, and a concurrent term of six years on count 13. The court stayed sentencing on counts 4, 7, 8, 9, 11, and 12 pursuant to section 654.

DISCUSSION

I. Jury Instruction

Garcia argues the trial court erred when it instructed the jury on the lesser included attempt offenses, but failed to define attempt because its legal definition differs from its commonly understood meaning. The Attorney General contends Garcia did not request an instruction on attempt, and the trial court is not required to instruct the jury sua sponte on a commonly understood term. As we explain below, we conclude the trial court erroneously failed to instruct the jury on the criminal definition of attempt, but conclude the error was harmless.

It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those

principles closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case. [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.] (People v. Breverman (1998) 19 Cal.4th 142, 154-155 (Breverman).)

As a general rule, in the absence of a request for amplification, the language of a statute defining a crime or defense usually is an appropriate basis for an instruction. If a statutory word or phrase is commonly understood and is not used in a technical sense, the court need not give any sua sponte instruction as to its meaning. If, however, a word or phrase is used in a technical sense differing from its commonly understood meaning, clarifying instructions are appropriate and should be given on the courts own motion. [Citations.] (People v. Rodriguez (2002) 28 Cal.4th 543, 546-547.)

When discussing jury instructions, the trial court indicated and counsel for both parties agreed, the court would instruct the jury on the lesser included offense of attempt as to all counts. There was no specific discussion as to CALJIC No. 6.00.

The trial court instructed the jury with CALJIC No. 17.10, Conviction Of Lesser Included Or Lesser Related OffenseImplied AcquittalFirst, as follows: If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime charged, you may nevertheless convict [him] of any lesser crime, if you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime. [] [The crime of [sections] 664/288[, subdivision] (a), [attempt[ed] lewd act upon child under 14] is lesser to that of [section] 228[, subdivision] (a)[,] charged in counts 1-9 [and] 11-13.] [] . . . [] [The crime of [sections] 664/288[, subdivision] (b)[,] [attempt[ed] forcible lewd act upon child under 14] is lesser to that of [section] 228[, subdivision] (b), as charged in count 10.]

Although Garcia did not request the trial court instruct the jury with CALJIC No. 6.00, we conclude the court should have instructed the jury with it because attempt has a specialized legal meaning. Websters Third New International Dictionary defines attempt as to make an effort to do, accomplish, solve, or effect[,] try, and endeavor. (Websters 3d New Internat. Dict. (1981) p. 140, col. 3.) CALJIC No. 6.00, AttemptDefined, states: An attempt to commit a crime consists of two elements, namely, a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.[4]

We cannot say attempt as defined in CALJIC No. 6.00 is commonly understood. Attempt has a specialized legal meaning and includes two elements: a specific intent to commit the crime, and a direct but ineffectual act done towards commission of the crime. The commonly understood meaning of attempt includes the second element (a direct but ineffectual act/to try), but it does not include the first element (a specific intent to commit the crime). Attempt as defined in CALJIC No. 6.00 is used in a technical sense differing from its commonly understood meaning because it includes a specific intent element. There is a meaningful difference between Websters and CALJICs definitions of attempt.

The trial court concluded it was appropriate to instruct the jury on the lesser included offense of attempt as to all counts. The court instructed the jury with

CALJIC No. 17.10, which stated the lesser included offenses of attempted lewd act upon a child under the age of 14 years and attempted forcible lewd act upon a child under the

age of 14 years. The trial court should have also instructed the jury on the definition of attempt as provided in CALJIC No. 6.00. We suspect its failure to do so was an inadvertent oversight, and not an intentional omission. Nevertheless, the courts failure to give the jury CALJIC No. 6.00 was error.

Although we conclude the trial court erroneously failed to instruct the jury with CALJIC No. 6.00, we must now determine whether Garcia was prejudiced by that error. We conclude he was not.

Garcia claims we must review the error under the more onerous reasonable doubt standard articulated in Chapman v. California (1967) 386 U.S. 18. The Attorney General disagrees, asserting the standard articulated in People v. Watson (1956)

46 Cal.2d 818 (Watson), is the appropriate standard. We agree with the Attorney General.

In Breverman, supra, 19 Cal.4th at page 165, the California Supreme Court stated: We conclude that the failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility. We further determine, in line with recent authority, that such misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome. (Cal. Const., art. VI, 13; Watson, supra, 46 Cal.2d at p. 836.)

Although Breverman concerned the failure to instruct on lesser included offenses, not the failure to properly instruct on lesser included offenses, we conclude the standard of review is the same. Because there is no federal constitutional right to instructions on lesser included offenses in noncapital cases, we conclude no federal constitutional right is implicated when the court erroneously instructs on lesser included

offenses in noncapital cases.[5] (Breverman, supra, 19 Cal.4th at pp. 165-166.) Therefore, we must now determine whether there is a reasonable probability Garcia would have received a better result had the trial court instructed the jury with CALJIC No. 6.00.

Garcia does not provide any reasoned argument as to how he was prejudiced by the trial courts error as to any of the counts. (Cal. Rules of Court, rule 8.204(a)(1)(B); People v. Stanley (1995) 10 Cal.4th 764, 793 [waiver rule].) However, we will address his conclusory claim of prejudice as to each of the counts below.

The jury acquitted Garcia on count 3, and we need not discuss it further.

As to counts 6, 8, 9, and 10, the jury found true the allegations Garcia had substantial sexual conduct with a victim under 14 years of age. Substantial sexual conduct means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender. ( 1203.066, subd. (b).) The jurys finding Garcia had substantial sexual conduct precludes the conclusion he attempted to commit these counts. Thus, we are left with counts 1, 2, 4, 5, 7, 11, 12, and 13.

13-year-old L.

With respect to count 1, L. testified she was at home sitting on the couch watching television when Garcia sat down next to her. He put his hand on her vagina over her clothes and moved his hand for approximately five minutes. As to count 2, L. testified she and Garcia were in the back of the van. He laid her down and tried to take [her] clothes off. He took off her pants and touched her vagina. He also touched her breasts underneath her bra. He took off her underwear. He moved his finger in and out of her vagina and put his penis inside her vagina from behind her. He moved his penis in

and out of her. With respect to count 4, she testified Garcia touched her breasts under and over her clothes approximately four or five times. She said one of the times they were in the van. Finally, as to count 5, she testified the last time Garcia touched her they were in the van. He took her to the back of the van and laid her down. He took off her pants and touched his penis to her vagina.

Garcia relies on L.s statements on cross-examination to argue there was evidence he was guilty of committing an attempted lewd act upon a child under the age of 14 years as to counts 1, 4, and 5.[6] L. admitted she told a social worker Garcia tried to touch her vagina over her clothes, but he was not able to because her mother came in. L. also said when the social worker asked her whether Garcia penetrated her in the van, she said, no. Finally, she told the social worker Garcia tried to touch her breast over her clothes. We find Garcias attempt to parse L.s words unconvincing.

Although L. testified she told the social worker Garcia tried to touch her vagina and breasts, she testified he did in fact do so. And, as to her allegedly inconsistent statement Garcia did not penetrate her, L. testified there were two occasions in the van. The first time he took her to the back of the van, laid her down, took off her underwear, and had intercourse with her from behind. The second time, he took her to the back of the van, laid her down, took off her pants, and rubbed his penis on her vagina without penetrating her. When questioned about the social workers questioning of L. as to the specifics of the touching and L.s statement Garcia tried to touch her, Orange County Sheriffs Investigator Roger Guevara testified, I know she didnt come out right away and say that it was a process, so it may have begun like that, yes. (Italics added.)

Additionally, Garcia, when interviewed by investigators, admitted he touched both girls over their clothes while in the van. Based on L.s detailed testimony about how Garcia molested her on numerous occasions, Guevaras statement arriving at the truth is a process when dealing with a child witness who has been molested, and Garcias own admissions, we conclude it is not reasonably probable Garcia would have received a more favorable result had the trial court instructed the jury with CALJIC No. 2.00.

11-year-old M.

As to count 7, M. testified Garcia touched her vagina more than 10 times while they were in the van parked in a parking lot somewhere. With respect to count 11, she testified Garcia touched her breast more than one time at the house and in the car. As to count 12, she testified Garcia put his mouth on her breast more than once. Finally, with respect to count 13, M. testified she and Garcia were in the back of the van and he touched her breast. He also put his penis in her butt from behind and sperm came out of his penis.

Garcia again relies on alleged inconsistencies in his daughters testimony on cross-examination to argue there was evidence he was guilty of committing an attempted lewd act upon child under the age of 14 years as to count 13.[7] Defense counsel asked her whether Garcia put his penis in her butt or whether he put his penis between her legs by her butt. When defense counsel asked M. if she understood what he meant, she said, no. When asked again, she said she did not remember.

Although M. testified on cross-examination she could not remember whether Garcia had anal intercourse with her or put his penis between her legs, she initially testified he put his penis in her butt and ejaculated. And, even if he did not

have anal intercourse with her, we are certain a father putting his penis between his

11-year-old daughters legs and ejaculating would count as a completed lewd or lascivious act and not an attempted one.[8] Based on M.s detailed testimony about how Garcia molested her on numerous occasions, we conclude it is not reasonably probable Garcia would have received a more favorable result had the trial court instructed the jury with CALJIC No. 6.00. Therefore, the trial courts failure to instruct the jury with the criminal definition of attempt did not prejudice Garcia.

II. Sentencing

Relying on Blakely v. Washington (2004) 542 U.S. 296 (Blakely), Garcia argues his Sixth Amendment rights were violated when he was sentenced to 15 years to life on counts 1, 2, 5, and 6 for violating section 288, subdivision (a), because the trial court, not the jury, made the finding he was ineligible for probation. As we explain below, we need not address the constitutional issue because Garcia was ineligible for probation by virtue of his conviction on count 10.

In 2005, when Garcia was convicted,[9] section 667.61, subdivision (b), stated: [A] person who is convicted of an offense specified in subdivision (c)[,] under one of the circumstances specified in subdivision (e)[,] shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 15 years . . . . Section 667.61, subdivision (c), provided, This section shall apply to any

of the following offenses: [] . . . [] (4) A violation of subdivision (b) of [s]ection 288. [] . . . [] (7) A violation of subdivision (a) of [s]ection 288, unless the defendant qualifies for probation under subdivision (c) of [s]ection 1203.066. Section 667.61, subdivision (e)(5), stated, The following circumstances shall apply to the offenses specified in subdivision (c): [] . . . [] The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c)[,] against more than one victim.

Section 667.61, subdivision (h), provided, Probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person who is subject to punishment under this section for any offense specified in paragraphs (1) to (6), inclusive, of subdivision (c).

In 2005, when Garcia was convicted,[10] former section 1203.066, subdivision (a), provided: Notwithstanding [s]ection 1203 or any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provisions of this section be stricken pursuant to [s]ection 1385 for, any of the following persons: (1) A person who is convicted of violating [s]ection 288 or 288.5 when the act is committed by the use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. [] . . . [] (7) A person who is convicted of committing a violation of [s]ection 288 or 288.5 against more than one victim. (8) A person who, in violating [s]ection 288 or 288.5, has substantial sexual conduct with a victim who is under 14 years of age. (Italics added.) Section 1203.066, subdivision (c), stated: Paragraphs (7), (8), and (9) of subdivision (a) shall not apply when the court makes all of the following findings: [] (1) The defendant is the victims natural parent, adoptive

parent, stepparent, relative, or is a member of the victims household who has lived in the victims household. [] (2) A grant of probation to the defendant is in the best interest of the child. [] (3) Rehabilitation of the defendant is feasible, the defendant is amenable to undergoing treatment, and the defendant is placed in a recognized treatment program designed to deal with child molestation immediately after the grant of probation or the suspension of execution or imposition of sentence. [] (4) The defendant is removed from the household of the victim until the court determines that the best interests of the

victim would be served by returning the defendant to the household of the victim. While removed from the household, the court shall prohibit contact by the defendant with the victim, except the court may permit the supervised contact, upon the request of the director of the court ordered supervised treatment program, and with the agreement of the victim and the victims parent or legal guardian, other than the defendant. As used in this paragraph, contact with the victim includes all physical contact, being in the presence of the victim, communication by any means, any communication by a third party acting on behalf of the defendant, and any gifts. [] (5) There is no threat of physical harm to the child victim if probation is granted. The court upon making its findings pursuant to this subdivision is not precluded from sentencing the defendant to jail or prison, but retains the discretion not to do so. The court shall state its reasons on the record for whatever sentence it imposes on the defendant. (Stats. 2005, ch. 477, 5, eff. Oct. 4, 2005.)

Pursuant to Blakely, Garcia contends the jury, not the trial court, should have determined whether he qualified for probation pursuant to sections 667.61, subdivision (c)(7), and 1203.066, subdivision (c). We disagree because Garcia was statutorily ineligible for probation.

The jury convicted Garcia of count 10, committing a forcible a lewd act upon a child (M.) under the age of 14 years in violation of section 288, subdivision (b)(1). Therefore, Garcia was ineligible for probation pursuant to count 10, and the trial court was not authorized to grant him probation on his convictions for violating section 288, subdivision (a). ( 667.61, subd. (h), 1203.066, subd. (a)(1); People v. Wutzke (2002) 28 Cal.4th 923, 932.) Because Garcia was statutory ineligible for probation we need not address his claim the courts denial of probation pursuant to section 1203.066, subdivision (c), violated his Sixth Amendment rights under Blakely.

DISPOSITION

The judgment is affirmed.

OLEARY, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.

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[1]Miranda v. Arizona (1966) 384 U.S. 436.

[2] All further statutory references are to the Penal Code.

[3] Upon the district attorneys request, the trial court dismissed the allegation as to count 13.

[4] Section 21a provides, An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.

[5] Garcias reliance on People v. MacArthur (2006) 142 Cal.App.4th 275, is misplaced. It did not concern lesser included offenses and is inapposite here.

[6] Garcia references count 4 when discussing this point, but based on the trial courts description of the counts and their corresponding acts, it has to be either count 2 or 5.

[7] He also mentions count 9, but as we explain above, because the jury found he committed substantial sexual conduct as to this count, we need not discuss it further.

[8] The trial court instructed the jury with CALJIC No. 10.41, which defined a lewd or lascivious act as follows: any touching of the body of a child under the age of 14 years with the specific intent to arouse, appeal to, or gratify the sexual desires of either party. To constitute a lewd or lascivious act, it is not necessary that the bare skin be touched. The touching may be through the clothing of the child.

[9] The Legislature amended former section 667.61 in 2006, after Garcia was sentenced. Section 667.61, subdivision (h), prohibits probation for anyone convicted of section 288, subdivisions (a), and (b). (Stats. 2006, ch. 337, 33, eff. Sept. 20, 2006.)

[10] The Legislature amended section 1203.066 in 2005.