P. v. Trujillo
Filed 7/31/07 P. v. Trujillo CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. ARNOLDO TRUJILLO, Defendant and Appellant. | F049220 (Super. Ct. No. VCF131877) OPINION |
APPEAL from a judgment of the Superior Court of Tulare County. Valeriano Saucedo, Judge.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
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Arnoldo Trujillo was convicted of four counts of molesting A.R. (Pen. Code, 288, subd. (b)(1).)[1] He was sentenced to an aggravated term on each count, and the terms were imposed consecutively for a total term of 32 years.
Trujillo argues the trial court erred in (1) denying his Wheeler[2]motion; (2) permitting a police officer to testify to the veracity of the victim; (3) excluding evidence that the victim had been molested by Trujillos son; (4) admitting evidence that Trujillo attempted to molest his daughter; (5) refusing to rule on his oral new trial motion at the sentencing hearing; and (6) imposing aggravated sentences on each count.
There is merit to several of Trujillos arguments. The police officer should not have been permitted to testify to the veracity of the victim, and the evidence that Trujillo attempted to molest his daughter was weak. Also, the instructions on the attempted molestation were incomplete. In addition, the trial court should have considered Trujillos new trial motion. As will be explained, we conclude these errors do not require reversal of the conviction. We will vacate the sentence, however, because the trial court relied on aggravating factors not found true by the jury.
FACTUAL AND PROCEDURAL SUMMARY
A.R. was approximately seven years old when she, her mother, and her brother moved in with Trujillo and his family. Also living in the home were Arnold, Jr., R.T., Desariee, Alexis, Paul, Margie, Angel, and Rafael. The house had three bedrooms and two bathrooms. Trujillo, his wife Margie, and their newborn daughter Angel slept in one bedroom. Arnold, Jr., Paul, and Rafael slept in the second bedroom. A.R. and her mother, brother, and Alexis slept in the third bedroom. The house was rather small, and there were frequent arguments over little things. A.R. would become scared when Trujillo screamed, but he usually was nice to her.
On one occasion A.R. was doing homework when Trujillo entered the room and pushed her onto the bed. He pulled down her clothing and started touching and licking her vagina. A.R. tried to pull away, but Trujillo would not let her go. A.R. did not scream or tell Trujillo to stop because she did not know what to do. A.R. told R.T. what occurred after Trujillo left.
On another occasion, A.R. went into a bedroom for a blanket to use while she watched television. Trujillo followed her into the bedroom. He pushed her onto the bed, pulled down her clothes, and rubbed her vagina.
On a third occasion, Trujillo came into A.R.s bedroom while she slept, pulled her close to him, and then pulled down her clothes and rubbed and licked her vagina. Trujillo left the room but came back and repeated the same sequence of events three or four times.
Although Trujillo did not tell her she could not tell anyone what happened, A.R. was afraid that if she did so Trujillo would hurt her and the person she told. She would be in pain each time Trujillo molested her, and her mother took her to the doctor one time.[3]
Gregg White is a detective with the Tulare County Sheriffs Department. White testified to various minor inconsistencies between A.R.s testimony and a prior videotaped interview. We stress the trivial nature of the inconsistencies. Most were simply items that A.R. did not remember at trial that she had recalled during her interview -- discrepancies that are attributable to the lapse of three years between the occurrence and the interview and the lapse of another 16 months between the interview and the trial.[4]
R.T. is Trujillos daughter and was 16 at the time of trial. R.T. was interviewed by Tulare County Sheriffs Detective Genaro Pinon, but she testified that she was not truthful during the interview because she was mad at Trujillo. She was angry because he was not there when her mother died and because her brother Arnold, Jr., had gone away (died). R.T. told Pinon she saw Trujillo doing something to A.R. in the bedroom, but it was not true because she was playing on the other side of the house with her little brother. Trujillo told R.T. she should not help A.R. with her homework because they would end up playing, not doing homework.
R.T. told Pinon a different story. She told Pinon she became suspicious when Trujillo told her he would help A.R. with her homework because Trujillo did not read or write English. R.T. said that when she went outside to play with her brother, she stacked some tires and climbed on top of them to permit her to look through the window where she saw Trujillo pull down A.R.s pants and rub her vagina. R.T. told Pinon that A.R. came outside after she was molested and told her what had occurred.
R.T. also told two aunts and two cousins that Trujillo molested A.R. She also told Pinon that Trujillo threatened to molest her one time, but he did not do so because she threatened to call the police if he tried to do so. R.T. testified this was a lie and that Trujillo would never attempt to molest her.
On cross-examination, R.T. explained that the home was a three-bedroom, two-bath mobile home with thin walls and a floor that made noise when you walked on it. In other words, there was very little privacy in this crowded home.
Pinon testified that he interviewed R.T. on January 24, 2004, while her aunt Betty was present. R.T. told Pinon that she asked Trujillo if she could go outside and play. Trujillo told her she could do so but she would have to take her brother with her, and A.R. would have to stay inside the house and finish her homework. Trujillo locked the door after he escorted R.T. and her brother outside. R.T. watched her father walk towards the bedroom in which A.R. was doing homework. She then stacked some tires so she could climb on top of them and look through the bedroom window. R.T. observed Trujillo place A.R. on his lap and move her from side to side. She then saw Trujillo take off his clothes and move forward and back while on top of A.R., who was crying. Trujillo also touched A.R. on her private parts. R.T. said she did not tell anyone because she did not know whom to tell.
R.T. told Pinon that on one occasion Trujillo tried to touch her, but he did not do so because R.T. threatened to call the police. R.T. also said she had used marijuana and mushrooms (presumably referring to psilocybin mushrooms) since she was eight years old.
C.R. and her family lived with Trujillo between January and July 2001. She moved into the Trujillo house because she needed somewhere to stay while she attended a new school. She never intended to stay at the house for an extended period of time. She left when her school plans changed. She got along well with the Trujillo family and left on good terms.
While staying at the Trujillo house, C.R. noticed an unusual smell emanating from A.R.s urine, but she did not seek medical assistance at the time.
C.R. received a phone call, apparently from a relative, informing her that something might have occurred while she and her family were staying in the Trujillo house. C.R. called A.R. and asked her if anything had occurred. A.R. began to cry and said that Trujillo had touched her between her legs.
Trujillo was charged with four counts of committing a lewd act on a child by use of force. ( 288, subd. (b)(1).) Each count also included a special allegation that A.R. was under the age of 14 at the time of the molestations, and that there was substantial sexual conduct. ( 1203.066, subd. (a)(8).) The jury found Trujillo guilty of each count and found each special allegation true. The trial court imposed an aggravated term of eight years on each count, to be served consecutively, for a total term of 32 years.
DISCUSSION
I. Denial of Wheeler Motion
Trujillo made two Wheeler motions during jury selection, each time arguing the prosecutor was systematically excluding Hispanic jurors from the jury. When he made his first motion, Trujillo pointed out the prosecutor exercised five consecutive challenges against jurors with Hispanic surnames. Trujillo felt there was no justification for the prosecutors challenge to the last challenged juror, Juror No. 397780.
The trial court responded by asking the prosecutor her justification for the challenge to Juror No. 397780. She responded that he appeared to be falling asleep while the trial court was examining the other jurors. The prosecutor also explained that she excused Juror Nos. 435778 and 305890 because of their youth. She excused Juror No. 412975 because he asserted it was a hardship for him to serve on the jury, even though the trial court did not excuse him on a hardship basis. The prosecutor explained she excused Juror No. 406770 because it appeared to her the juror used illegal substances. Trujillos counsel disputed each of the prosecutors asserted justifications, particularly with regard to Juror No. 397780. He requested an in camera examination of that juror to determine if there was any support for the prosecutors basis for the challenge.
The trial court agreed the jurors who had been challenged all had Hispanic surnames, but it denied Trujillos request to examine Juror No. 397780. It stated it was satisfied with the justifications for the use of peremptory challenges proffered by the prosecutor. The trial court denied the motion but stated it would be mindful as we go forward.
The prosecutor exercised her last four peremptory challenges without comment by Trujillo.
After the jury was chosen, the trial court elected to seat two alternate jurors. The trial court permitted each party to utilize two peremptory challenges during the selection of the alternate jurors. The trial court examined the potential alternates to determine if they should be excused for cause. Neither party voir dired any of the potential alternate jurors. After the first alternate juror was chosen, the prosecutor exercised one of her peremptory challenges on Juror No. 285851. At this point, Trujillo made his second Wheeler motion.
Trujillo argued that Juror No. 285851 was the seventh potential juror with a Hispanic surname that the prosecutor excused using her 11 peremptory challenges. The prosecutor explained that it appeared to her that Juror No. 285851 had a difficult time reading English when he was responding to the written questions presented to him during voir dire. She felt this would present difficulties during deliberations if the jury needed to read the jury instructions.
The trial court attributed the jurors hesitation in answering questions during voir dire to nervousness, not to difficulty in reading English. The trial court denied the motion, however, noting that seven of the jurors or alternates had Hispanic surnames, which represented adequate Hispanic representation on the jury. The prosecutor also pointed out that she exercised a peremptory challenge on a Caucasian male potential juror who was replaced on the panel by a Hispanic male.
Trujillo argues the trial court erred when it rejected the prosecutors reason for challenging Juror No. 285851, but still denied his motion.
The process for ruling on a motion pursuant to People v. Wheeler, supra, 22 Cal.3d 258 is well established.
Both the California and United States Constitutions are violated by the exercise of peremptory challenges based on group bias, instead of reasons specific to the challenged prospective juror. [Citation.] The procedure governing objections on this ground is settled: First, the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Citations.] Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. [Citations.] Third, [i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination. [Citation.] [Citations.] (People v. Lancaster(2007) 41 Cal.4th 50, 74.)
The events described above suggest the trial court concluded that Trujillo made out a prima facie case of group bias. We use the term suggest because the trial court did not specifically rule there was an inference of discriminatory purpose. Instead, once Trujillo objected, the trial court requested the prosecutor explain the purpose for challenging Juror No. 285851. Under these circumstances, we will presume the omitted finding. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1122-1123.)
Trujillo appears to argue the trial court erred because it rejected the prosecutors explanation for excusing Juror No. 285851. According to Trujillo, once the Peoples explanation was rejected, the trial court was obligated to excuse the entire panel. We disagree.
First, we do not read the record in the same light as Trujillo. The prosecutor explained that she challenged Juror No. 285851 because she was concerned about his ability to read English. The trial court disagreed, concluding the potential juror was probably just nervous. The trial courts comment does not mean that it concluded the prosecutor acted with an improper discriminatory purpose. Instead, the trial courts comment suggests that it viewed the proceedings differently than the prosecutor. This is nothing more than an example of two witnesses to the same event having different recollections of what occurred. It does not mean either is wrong, but demonstrates that every individual perceives things in a different manner. We cannot conclude, on this record, that the trial court ruled that the prosecutor intentionally discriminated against Juror No. 285851.
Second, once the trial court rejected the prosecutors explanation, reversal is not automatic. Batson,[[5]] of course, explicitly stated that the defendant ultimately carries the burden of persuasion to prove the existence of purposeful discrimination. [Citations.] This burden of persuasion rests with, and never shifts from, the opponent of the strike. [Citation.] Thus, even if the State produces only a frivolous or utterly nonsensical justification for its strike, the case does not end -- it merely proceeds to step three. [Citation.] The first two Batson steps govern the production of evidence that allows the trial court to determine the persuasiveness of the defendants constitutional claim. It is not until the third step that the persuasiveness of the justification becomes relevant -- the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. [Citation.] (Johnson v. California(2005) 545 U.S. 162, 170-171, fns. omitted.)
The trial court, after disagreeing with the prosecutors assessment of Juror No. 285851s reading ability, correctly proceeded to the third step of the analysis -- determining whether Trujillo carried his burden of proving there was purposeful discrimination. In conducting its analysis, the trial court noted there remained on the panel seven jurors with Hispanic surnames.[6] The trial court also acknowledged the prosecutor had utilized a peremptory challenge that resulted in a juror with a Hispanic surname being placed on the jury. From these facts, the trial court concluded that Trujillo had not met his burden of showing from all the circumstancesof the case a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias. [Citation.] (People v. Reynoso (2003) 31 Cal.4th 903, 908.) We review this conclusion for an abuse of discretion as the trial courts ruling is entitled to great deference. (Ibid.)
We conclude the trial court did not abuse its discretion. As it observed, 7 of the 12 jurors appeared to have Hispanic surnames. This is a strong indication that the prosecutor was not motivated by bias against Hispanics. (People v. Gutierrez, supra, 28 Cal.4th at p. 1122.) There also was a race-neutral reason for excusing Juror No. 285851 ‑‑ the prosecutors belief that the juror demonstrated difficulty reading the English language. As explained above, the fact the trial court did not agree does not mean the prosecutor was systematically excluding all jurors with Hispanic surnames. In addition, the prosecutor had utilized a peremptory challenge on a Caucasian juror that resulted in a Hispanic juror being seated on the jury. The totality of the circumstances convinces us the trial court did not abuse its discretion in concluding the prosecutor did not engage in prohibited group bias.
II. Whites Testimony that A.R. Was Truthful
White observed A.R.s interview. He testified for the prosecution about his observations. The prosecutor asked White, From your training and experience, did it appear to you that [A.R.] was making it up as she went? Trujillos counsel objected and requested a sidebar. The trial court overruled the objection and permitted White to respond, Yes, I believe she was telling the truth.
Trujillo asserts the trial court erred, requiring reversal of the conviction. The People concede the error, but argue the error was harmless.
The trial court erred. Whites testimony was nothing more than his opinion of A.R.s veracity. Admission of opinion testimony is limited by statute. A lay witness may testify in the form of an opinion that is rationally based on the perception of the witness and will be helpful to a clear understanding of his or her testimony. (Evid. Code, 800.) An expert, on the other hand, may testify in the form of an opinion if the subject of his opinion is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact, and the opinion is [b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness . (Id., 801.)
Whites testimony is not admissible under either section. Whites testimony related to A.R.s veracity was not helpful to a clear understanding of his testimony. His admissible testimony was limited to what he observed when A.R. was interviewed. Whether she was, in Whites opinion, being truthful did not add to the clarity of his testimony. Instead, the only purpose for the testimony was an attempt to convince the jury that A.R. was being truthful. The testimony was not admissible, therefore, as a lay witness opinion.
Nor was the testimony admissible as expert testimony, the grounds on which the trial court apparently relied. In this case, as in many cases, the issue was whether A.R. was telling the truth or fabricating her testimony. The jury is charged in such situations to make that determination based on all of the evidence presented at trial. More importantly, the jury is as qualified as White to make that determination. In other words, Whites testimony was not related to a subject that was sufficiently beyond common experience that the opinion would assist the trier of fact.
Nor was White qualified to testify as an expert to A.R.s veracity. An expert witness is defined as a person who has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. (Evid. Code, 720, subd. (a).) While White may have had sufficient expertise to testify on numerous police related topics, there is nothing in his testimony that would establish he had special knowledge, skill, experience, training, or education in the field of determining whether in individual was being truthful. Simply being a police officer and conducting numerous investigations or interviews does not qualify one as an expert in divining the truth.
The error, however, does not require reversal of the judgment because we conclude that it is not reasonably probable that Trujillo would have obtained a better result if Whites comment had been excluded. (Cal. Const., art. VI, 13; People v. Cahill (1993) 5 Cal.4th 478, 500-501, 509-510.) Trujillos defense was based largely on ineffectual attempts to discredit A.R. Trujillos efforts did not provide any rational explanation for his contention that A.R. gave false testimony at trial. She no longer resided with Trujillo, and she had not resided with him for over three years when she reported the abuse.[7] By that time, she had no reason to fabricate charges against Trujillo.
R.T.s statement to Pinon, although asserted to be false at trial, also supported A.R.s testimony. The details in her statement were far more suggestive of the truth than a young girl angry with her father. Her confirmation at trial that A.R. complained to her about Trujillo molesting her after the first incident provided compelling evidence of Trujillos guilt.
In contrast, Whites statement was a very small part of the trial, and not compelling evidence of guilt. While it may have been considered by the jury, the absence of any evidence to support Trujillos defense convinces us that admission of Whites statement was harmless.
III. Exclusion of Other Molestation
Trujillo sought to introduce evidence that A.R. was molested by his son, Arnold, Jr. Apparently, Arnold, Jr., admitted molesting A.R. when he was confronted with the accusations. The following day he committed suicide. The prosecutor conceded that A.R. reported that she also was molested by Arnold, Jr., and that he committed suicide.
Trujillo filed a motion pursuant to Evidence Code section 782 seeking to introduce Arnold, Jr.s, molestation of A.R. Trujillo argued the evidence was admissible to establish that A.R. could testify to these acts because she was exposed to them by Arnold, Jr., not by Trujillo. The People objected to the proposed testimony as irrelevant and on the grounds set forth in Evidence Code section 352.
The trial court accepted as true the representation that A.R. had been molested by Arnold, Jr., in a manner that was substantially similar to the accusations she made against Trujillo, but excluded the testimony on the grounds that the probative value of the evidence was substantially outweighed by the potential it would cause undue prejudice. (Evid. Code, 352.) Trujillo contends this ruling was erroneous.[8]
Trujillo cites People v. Daggett (1990) 225 Cal.App.3d 751 to support his argument. Daggett was accused of molesting Daryl. Daryl made the accusation against Daggett after he (Daryl) was arrested for molesting two young boys. Daggett sought to introduce testimony that Daryl claimed he had been molested by two older boys when he was about five years old. Daggett asserted the prior molestation was relevant to Daryls ability to describe the acts of which Daggett was accused. The trial court found the offer of proof insufficient to require a hearing on the issue of the prior molestation. The appellate court reversed.
A childs testimony in a molestation case involving oral copulation and sodomy can be given an aura of veracity by his accurate description of the acts. This is because knowledge of such acts may be unexpected in a child who had not been subjected to them. In such a case it is relevant for the defendant to show that the complaining witness had been subjected to similar acts by others in order to cast doubt upon the conclusion that the child must have learned of these acts through the defendant. Thus, if the acts involved in the prior molestation are similar to the acts of which the defendant stands accused, evidence of the prior molestation is relevant to the credibility of the complaining witness and should be admitted.
Here, Daggetts offer of proof was that he learned, from an inspection of the prosecutors file, Daryl told a mental health worker and Doctor Slaughter that he had been molested by two older children, ages eleven and eight, when he was five years old. This should have been sufficient for the court to have ordered a hearing to determine whether the acts of prior molestation were sufficiently similar to the acts alleged here. The court erred when it failed to do so.
The error was compounded when the prosecutor argued to the jurors that if they believed Daryl molested other children, he must have learned that behavior from being molested by Daggett. This is the type of argument the excluded evidence was intended to refute. (People v. Daggett, supra, 225 Cal.App.3d at p. 757.)
We find the discussion in Daggett to be instructive on the issue of relevance but conclude Trujillos reliance is misplaced. The error in Daggett was the refusal to hold a hearing to determine if the prior acts of molestation were similar to the crimes of which Daryl claimed to be the victim. The appellate court held that if the prior molestations were similar to the acts of which Daggett was accused, they would be relevant. The appellate court, however, did not hold the prior molestations necessarily would be admissible. The appellate court recognized that even if the prior molestations were relevant, the testimony would be admissible only if the trial court determined the testimony should not be excluded pursuant to Evidence Code section 352. (Id., 782, subd. (a)(4); People v. Daggett, supra, 225 Cal.App.3d at p. 757.) Because the probative value of the evidence was not weighed against its prejudicial effect in the trial court, the appellate court did not address this issue.
In this case, the trial court presumed the evidence that A.R. had been molested by Arnold, Jr., was relevant, but exercised its discretion pursuant to Evidence Code section 352 to exclude it. The issue before us then is whether the trial court abused its discretion in making this ruling. (People v. Avila(2006) 38 Cal.4th 491, 578.) It is axiomatic that a court has wide discretion to exclude evidence as substantially more prejudicial than probative. Its ruling therefore will be sustained on review unless it falls outside the bounds of reason. [Citation.] (People v. DeSantis (1992) 2 Cal.4th 1198, 1226.)
We cannot say the trial court exceeded the bounds of reason when it excluded testimony about Arnold, Jr.s, molestation of A.R. The testimony had some relevance on the issue of how A.R. might have learned about the acts she described if Trujillo did not molest her. This was not, however, a significant issue. Instead, the parties focused on A.R.s veracity. Trujillo claimed A.R. made up the allegations because she was angry at him. He pointed out that almost three years passed between the time the alleged molestation occurred and when A.R. reported the molestation, along with inconsistencies between her statement to the police and her trial testimony.
Testimony that Arnold, Jr., also molested A.R. carried the risk of inflaming the passions of the jury. That a seven-year-old girl had been molested by Trujillo and his son, who was not on trial and could not respond to the charges, carried the risk of creating a jury that blamed Trujillo for his sons acts. Under these circumstances, the trial court did not abuse its discretion in excluding the evidence.
IV. Propensity Evidence
The prosecutor obtained permission from the trial court to introduce testimony that Trujillo had attempted to molest R.T. on one occasion. The testimony was introduced through R.T. and Pinon, the officer who took her statement. R.T. testified she told Pinon that Trujillo threatened to molest her on one occasion, but he did not do so because she threatened to call the police. R.T. also testified the allegation she made to Pinon was not true. Pinon testified that R.T. told him during the interview that Trujillo tried to touch her on one occasion, but he stopped when she threatened to call the police.
A. Admission
Evidence Code section 1108 allows testimony of a defendants commission of another sexual offense, or an attempt to commit another sexual offense, when the defendant is accused in a criminal action of committing a sexual offense. (Id., 1108, subds. (a), (d)(1)(F).) The trial court retains the right to exclude such evidence pursuant to the provisions of Evidence Code section 352. (Id., 1108, subd. (a).)
When the prosecution seeks to admit evidence of another sexual offense, it is required to disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered in compliance with the provisions of Section 1054.7 of the Penal Code. (Evid. Code, 1108, subd. (b).) Section 1054.7 requires that disclosure of evidence must be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred. Good cause is limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement.
The defendant was arraigned on the information on July 13, 2005. A hearing was held on July 14 to set the date for trial. The date set for trial was August 10 because Trujillo exercised his right to a speedy trial within the statutory requirements. The prosecutor stated that although the witnesss name and address were already disclosed to the defense, a formal notice of intent to utilize evidence pursuant to Evidence Code section 1108 had not been given. She requested a different date for trial or a waiver of the 30-day requirement for disclosing the Evidence Code section 1108 evidence. Trujillo refused both requests. The trial court ordered the prosecution to disclose immediately the Evidence Code section 1108 evidence and that it would admit the evidence.
On July 15, 2005, Trujillo filed a formal objection to the propensity evidence, claiming such testimony violated his constitutional rights to due process, equal protection, and the ex post facto clause of the Constitution. On July 27 the prosecutor filed a motion in limine to admit the propensity evidence. The motion was primarily a response to Trujillos constitutional arguments, but it also argued the testimony met the requirements of Evidence Code section 1108. On July 28 Trujillo filed an addendum to his prior objections, this time asserting that R.T.s identity was provided for the first time in the July 27 prosecution motion and thus was not provided immediately as required by the trial court at the July 14 hearing. The prosecutor responded to clarify the present state of its proposed propensity evidence. The clarification was consistent with the testimony ultimately offered at trial.
Trujillo makes two arguments regarding admission of the propensity evidence. First, he asserts it should have been excluded because it was not disclosed in a timely manner. Second, he claims that the testimony did not constitute an attempt and should have been excluded for that reason.
1. Untimely disclosure
The prosecution convinced the trial court that good cause existed for the late disclosure. The good cause apparently was Trujillos refusal to continue the trial. Since section 1054.7 clearly limits good cause to very limited circumstances, and failure to waive time for trial is not one of those circumstances, the trial court erred in finding good cause for the untimely disclosure.
Trujillo, however, ignores the appropriate sanction for failure to meet the disclosure requirements of section 1054.7. He assumes, without argument or citation to authority, that the evidence should have been excluded.
This court explained in People v. Hammond (1994) 22 Cal.App.4th 1611 that exclusion of testimony is the last resort for untimely disclosure. We first noted that the sanctions for failure to comply with the rules of disclosure are found in section 1054.5. (Hammond, at p. 1624.) Subdivision (c) of section [1054.5] expressly provides that [t]he court may prohibit the testimony of a witness ... only if all other sanctions have been exhausted. [Citation.] [] Such other sanctions are described in subdivision (b) of section 1054.5 as including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness continuance of the matter, or any other lawful order. (Id. at pp. 1624-1625.)
Here, even though the trial court phrased its order in terms of good cause, it complied with the disclosure statutes when it ordered immediate disclosure and offered Trujillo a continuance of the trial date, which he declined. There was no error.
2. Sufficiency of the attempt
The prosecutor argued R.T.s testimony established that Trujillo attempted to molest her, thus falling within the parameters of Evidence Code section 1108. R.T. answered affirmatively when the prosecutor asked her if she told Pinon that her father had threatened to molest her but then claimed the statement was a lie. Pinon testified that R.T. told him that she was uncomfortable around Trujillo because he tried to touch her one time, but he did not do so because she threatened to call the police.
Trujillo argues this evidence should have been excluded because it was insufficient to constitute an attempted molestation. An attempt to commit a crime has two elements: the intent to commit the crime and a direct ineffectual act done toward its commission. The act must not be mere preparation but must be a direct movement after the preparation that would have accomplished the crime if not frustrated by extraneous circumstances. [Citation.] (People v. Carpenter (1997) 15 Cal.4th 312, 387.)
While the evidence in this case was weak, we need not decide if Trujillos alleged actions constituted an attempt because, even if we assume the evidence was admitted erroneously, reversal would not be required.
The evidence of Trujillos guilt was overwhelming. While R.T. claimed most of the statement she gave to Pinon was not true, R.T. admitted that A.R. told her that Trujillo had molested her. This was the most damaging testimony given by R.T., since it confirmed A.R.s testimony. The testimony about Trujillos attempt to molest R.T., on the other hand, was innocuous. The very defects in the testimony about which Trujillo complains, the claim that he tried to touch her and nothing more occurred, describes testimony with almost no evidentiary value.
Considering, as explained above, that Trujillos attempts to impeach A.R. largely were ineffective, we conclude there was no reasonable probability that had the evidence been excluded a different result would have been reached. (Cal. Const., art. VI, 13; People v. Cahill, supra, 5 Cal.4th at pp. 500-501, 509-510.)
B. Instructions
The trial court instructed the jury with CALJIC No. 2.50.01.[9] The instruction stated that there was evidence that Trujillo may have violated section 288, subdivision (b)(1). The trial court informed the jury that the elements of the crime Trujillo allegedly committed involving R.T. were provided elsewhere in the instructions. The trial court and the parties presumably were referring to CALJIC No. 10.42, which defined the elements of a section 288 violation.
Trujillo correctly points out that the propensity evidence against him constituted, at most, an attempt to commit a violation of section 288. The trial court erred in two respects, therefore, with this instruction. First, it failed to instruct the jury on the elements of an attempt. Second, the propensity evidence could constitute only an attempt, and the jury was not so informed. Trujillo correctly argues these omissions constituted error.
As with the admission of the propensity evidence, however, it is not reasonably probable that if correct instructions had been given, Trujillo would have obtained a better result. The error could have inured only to Trujillos benefit because the propensity testimony could not have been found to constitute a violation of section 288. If the jury found that Trujillos conduct with R.T. did not constitute a violation of section 288, then the instructions would not permit the jury to draw an inference that Trujillo had a disposition to commit sexual offenses.
Regardless, as with the question of whether there was substantial evidence that Trujillo attempted to molest R.T., the weakness of the evidence of the attempted molest, when combined with the strength of the evidence that Trujillo molested A.R., convinces us that it is not reasonably probable Trujillo would have obtained a better result, even if the jury had been instructed properly.
V. Denial of New Trial Motion
The jury retired to deliberate at approximately 2:40 p.m. on Monday afternoon. The jury returned to the courtroom at approximately 4:50 p.m. and reported to the trial court it was deadlocked. Upon questioning by the trial court, it was determined that deliberations should continue the following day. Juror No. 285172, however, stated that she would not be able to deliberate on Tuesday because of a family funeral that was to be held out of town. After discussing the matter with counsel, the trial court informed the jury that it would attempt to contact the two alternates and, if one of them could join the jury on Tuesday, Juror No. 285172 would be dismissed and replaced by the alternate. If one of the alternates was not available on Tuesday, the entire panel, including Juror No. 285172, would resume deliberations on Wednesday.
The proceedings resumed on Tuesday morning with a discussion with the parties about jury instructions. The trial court also advised the parties that Alternate Juror No. 1[10]was not available, so Alternate Juror No. 2[11]would join the jury. Trujillo did not object to Alternate Juror No. 2 joining the jury.
When the jury rejoined the proceedings, the trial court reinstructed the jury on some of the issues, and the jury began deliberations with Alternate Juror No. 2 at 10:49 a.m. At 11:40 a.m. the jury returned with the verdict.
On the day and time set for pronouncement of judgment, Trujillo moved for a new trial based on the substitution of juror number 14 instead of juror number 13, who was the next logically in line, without any opportunity for hearing on that issue. The trial court denied the motion for a new trial as untimely because Trujillo had not filed a noticed motion or provided any notice to the trial court or the People that he would be so moving, despite having ample time to do so.
Trujillo now contends the trial court erred in failing to consider his motion for new trial. He asserts that People v. Braxton (2004) 34 Cal.4th 798 is authority for his argument and requires reversal of the judgment.
The trial court erred in concluding that Trujillo could not make an oral motion for a new trial prior to the pronouncement of judgment. Section 1182 provides that the only requirement for making a new trial motion is that it must be made before pronouncement of judgment. Braxton conceded that a new trial motion may be made orally at the sentencing hearing, but discouraged such tactics. (People v. Braxton, supra, 34 Cal.4th at pp. 807-808 & fn. 2.)
The issue in Braxton, however, was the appropriate remedy when a trial court refuses to consider a new trial motion. Section 1202 provides, in part, that when a trial court refuses to hear a defendants motion for a new trial, then the defendant shall be entitled to a new trial. The Supreme Court concluded, however, that this language was not absolute but must be harmonized with the command in article VI, section 13 of the California Constitution that no judgment shall be set aside, or new trial granted, for a procedural error unless the error resulted in a miscarriage of justice. (People v. Braxton, supra, 34 Cal.4th at pp. 815-817.) The Supreme Court held that in the case of a trial court refusing or neglecting to hear a motion for new trial, the reviewing court must order a new trial only if the defendant can demonstrate prejudice.
Section 1202 entitles a defendant to a new trial when the trial court has refused to hear or neglected to determine a defendants motion for a new trial and a reviewing court has properly determined that the defendant suffered actual prejudiceas a result. This will occur when, for example, the reviewing court properly determines from the record that the defendants new trial motion was meritorious as a matter of law, or the record shows that the trial court would have granted the new trial motion and the reviewing court properly determines that the ruling would not have been an abuse of discretion. [Citation.] In these situations, the trial courts error has resulted in a miscarriage of justice within the meaning of article VI, section 13 of the California Constitution.
On the other hand, a judgment of conviction may not be reversed and a new trial may not be ordered for a trial courts failure to hear a new trial motion when a reviewing court has properly determined that the defendant suffered no prejudice as a result. This will occur when, for example, the record shows that the trial court would have denied the new trial motion and the reviewing court properly determines that the ruling would not have been an abuse of discretion, or the reviewing court properly determines as a matter of law that the motion lacked merit. [Citations.] (People v. Braxton, supra, 34 Cal.4th at pp. 817-818.)
The Supreme Court also recognized that in some situations it would be impossible to determine how the trial court would have ruled on a motion or determine the merits of the motion from the appellate record. In those situations, the Supreme Court held the matter should be remanded to the trial court for a determination of the motion, if feasible. (People v. Braxton, supra, 34 Cal.4th at p. 819.)
Our task, therefore, is to determine from the record whether Trujillos motion had merit. We find no assistance from Trujillos brief. He simply demands a new trial without any consideration of the issue of prejudice.
We do not find it necessary to remand the matter to the trial court. Trujillo argued for a new trial primarily on the ground that the trial court improperly substituted Alternate Juror No. 2 into deliberations instead of Alternate Juror No. 1.[12] We do not read his motion as asserting there was not good cause for the dismissal of Juror No. 285172.
Section 1089 provides, in part: If at any time a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors.
In this case, the trial court did not draw the name of an alternate, instead replacing Juror No. 285172 with Alternate Juror No. 2 because he was available, while Alternate Juror No. 1 was not available. We need not decide if there was error because Trujillo failed to object to the procedure utilized by the trial court in selecting Alternate Juror No. 2. It is now too late to raise the issue; it has been waived. (People v. Davidian (1937) 20 Cal.App.2d 720, 727.)
Trujillos claim fails on the merits as well. He contends that he did not have an opportunity to be heard on the procedure utilized by the trial court in selecting Alternate Juror No. 2. The issue came up at the end of the first day of deliberations. The trial court told both parties how it intended to proceed in picking an alternate juror. Neither party objected. The following morning, the trial court explained what had been learned when speaking to the alternate jurors and that Alternate Juror No. 2 would replace Juror No. 285172. Neither party objected. Trujillo had ample opportunity to object if he felt the procedure was erroneous.
Trujillo also moved for a new trial on instructional grounds. When the parties and the jury returned for the second day of deliberations, the prosecutor requested the trial court instruct the jury with additional instructions. When asked if he had any objection to these instructions, Trujillos counsel stated that they appeared to be proper instructions, but it was kind of late to be adding instructions. This was the only possible objection to the instruction that occurred at trial.
We find no error in providing additional instructions to the jury after it began deliberations under the facts of this case. While it has been held that it is improper to instruct on a new offense after jury deliberations have begun (People v. Stouter (1904) 142 Cal. 146, 149; People v. Jennings (1972) 22 Cal.App.3d 945, 948), this is not such a case. The only information added to the instructions was definitions for oral copulation (taken from CALJIC No. 10.45) and masturbation (apparently taken from People v. Chambless (1999) 74 Cal.App.4th 773, 786), and an instruction (utilizing CALJIC No. 17.24.1) informing the jury that it was required to make a finding on the special allegation that was contained in each count (that Trujillo had substantial sexual contact with A.R.).[13] This situation is unlike Stouter andJennings. In those two cases, the jury made it clear to the trial court it was deadlocked. The trial court then instructed the jury with a lesser offense that resulted in a conviction on the lesser offense. Here, the jury merely was given definitions to be utilized in evaluating the crimes with which Trujillo had been charged. Trujillo is not entitled to a new trial.
VI. Blakely[14]Error
The trial court sentenced Trujillo to consecutive eight-year aggravated terms on each count, for a total term of 32 years. The trial court found there were no factors in mitigation and four factors in aggravation. Those factors were (1) the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1)); (2) the victim was particularly vulnerable (Id., rule 4.421(a)(3)); (3) the defendant took advantage of a position of trust or confidence to commit the offense (Id., rule 4.421 (a)(11)); and (4) the defendant had engaged in violent conduct that indicates a serious danger to society (Id., rule 4.421 (b)(1)). None of these circumstances in aggravation was found to be true by the jury.
This sentence was imposed before Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856], in which the United States Supreme Court held that it is improper to base an aggravated term under Californias Determinate Sentencing Law on circumstances in aggravation that are not found true by the jury, with the exception of the fact of prior convictions. (Id. at p. ___ [S.Ct. at p. 868].)
The trial court violated Trujillos Sixth Amendment rights as explained in Cunningham when it sentenced him to aggravated terms based on factors not found true by the jury using the beyond a reasonable doubt standard. In People v. Sandoval (July 19, 2007, S148917) ___ Cal.4th ___ [2007 Cal. Lexis 7606], the California Supreme Court, citing Chapman v. California (1967) 386 U.S. 18, held that such errors are harmless if we find beyond a reasonable doubt that the error did not contribute to the verdict obtained. (Sandoval, at p. ___ [2007 Cal. Lexis 7606 at p. *17].) This analysis requires us to determine beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury . (Id. at p. ___ [2007 Cal. Lexis 7606 at p. *19].)
As the Supreme Court explained in Sandoval, to the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court. (People v. Sandoval, supra, ___ Cal.4th at p. ___ [2007 Cal. Lexis 7606 at p. *21].)
We find ourselves in the position foreseen by the Supreme Court. The factors found true by the trial court -- that the victim was particularly vulnerable, that Trujillo took advantage of a position of trust or confidence to commit the offense, that the crime involved great violence, great bodily harm, or the threat of great bodily harm, or other acts disclosing a high degree of cruelty viciousness, or callousness, and that Trujillo engaged in violent conduct that indicated a serious danger to society -- were all subjective and not subject to simple definitions. These factors were not elements of the offenses of which Trujillo was convicted. We are not confident that the jury, using the more rigorous beyond-a-reasonable-doubt standard, would have reached the same conclusion when considering the aggravating factors on which the trial court relied. We conclude, therefore, that the error in this case was not harmless.
DISPOSITION
The conviction is affirmed, but the sentence is vacated and the matter is remanded to the trial court for resentencing consistent with Sandoval.
_____________________
CORNELL, J.
WE CONCUR:
_____________________
LEVY, Acting P.J.
_____________________
DAWSON, J.
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[1] All further statutory references are to the Penal Code unless otherwise specified.
[2]People v. Wheeler (1978) 22 Cal.3d 258.
[3] C.R., A.R.s mother, did not know at the time that Trujillo was molesting A.R. We will use the mothers initials to protect the minors identity.
[4] The molestation occurred in the time period beginning on January 1, 2001, and ending on June 30, 2001. The interview occurred on February 9, 2004. A.R. testified on August 11 and 12, 2005.
[5]Batson v. Kentucky(1986) 476 U.S. 79.
[6] Trujillos counsel argued that in his opinion only two of the jurors on the panel exhibited physical characteristics of someone of Hispanic Latino descent, an assessment with which the trial court did not appear to agree. We cannot tell from the record if the challenged jurors exhibited physical characteristics of someone of Hispanic Latino descent or simply had Hispanic surnames but no such characteristics. Moreover, counsel failed to describe what he meant by the phrase physical characteristics of someone of Hispanic Latino descent. The phrase itself is too subjective to be useful. Counsels comment does not aid Trujillos arguments.
[7] The abuse appears to have been discovered based on R.T.s statement to her aunt.
[8] Trujillo argues extensively in his brief that Arnolds suicide was admissible as evidence of his guilt. Arnold, Jr.s, death was not relevant to any issue at trial. While Arnold, Jr.s, molestation of A.R. was relevant, his guilt of the molestation never was contested by any party at trial. Allowing evidence of his suicide to prove guilt would have been redundant.
