Filed 12/12/18 P. v. Rubio CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FIVE
| THE PEOPLE, Plaintiff and Respondent, v. RAMON MEJIA RUBIO, Defendant and Appellant. |
A152661
(Solano County Super. Ct. No. FCR323801)
|
Ramon Mejia Rubio appeals from a judgment of conviction and sentence imposed after a jury found him guilty of committing a lewd act with a child under the age of 14 and found that the act constituted substantial sexual conduct. (Pen. Code, §§ 288, subd. (a); 1203.066, subd. (a)(8).)[1] He contends (1) the prosecutor impermissibly appealed to the jury’s sympathy in closing argument; (2) the court erred in instructing the jury on the charged crimes; (3) the court erred in instructing the jury regarding substantial sexual conduct; and (4) the jury’s finding of substantial sexual conduct was not supported by substantial evidence. We will affirm.
I. FACTS AND PROCEDURAL HISTORY
An information charged Rubio with two counts of committing a lewd act upon a child under the age of 14 (§ 288, subd. (a)). As to each count, it was alleged that Rubio had substantial sexual conduct with the victim, making him ineligible for probation (§ 1203.066, subd. (a)(8)). The matter proceeded to a jury trial.
The prosecution case included testimony from victim S.D., three friends to whom S.D. reported the incident, and the investigating officers who interviewed her.
On the day of the charged crimes, S.D. was 13 years old and lived in an apartment in Vacaville. Her friends Jasmin, Celeste, and Ximena lived in the apartment complex next door.
S.D. was in the laundry room of the apartment complex when Rubio, whom S.D. had seen around the complex but had never spoken to, walked in. Facing her, Rubio asked S.D. if she wanted him to pick her up. S.D. said no, but he picked her up anyway. Specifically, he turned her around so that he was behind her, with their bodies facing in the same direction, put both of his hands around her stomach, lifted her off the ground about an inch or two, slid both of his hands down to her “private” area over her clothing, and rubbed her body against his own. She felt Rubio’s “thing,” which felt hard, on her butt. S.D. was upset and repeatedly told Rubio to stop, but he continued.
Rubio released S.D. and left the laundry room. About five minutes later, S.D. left the laundry room and, still upset, told her friends what happened. She spoke to Ximena alone for about 15 minutes, then to Celeste with Ximena present for about five minutes, and then to Jasmin with Ximena and Celeste present. She next told her mother, who called the police.
S.D. told the responding officer what happened and later spoke to a female detective (Detective Gottlieb) at school and to another detective in a video-recorded interview. S.D. was confident that Rubio was the man in the laundry room when she selected his picture from those shown to her by the officer.[2]
Ximena, seven years old at the time of the incident, was playing in front of the laundry room door while S.D. was inside. Ximena saw Rubio enter the laundry room and heard him say to S.D. in Spanish, “I’m going to see how much you weigh.” Ximena got a chair, looked through the laundry room window, and saw Rubio lift S.D. up. At the time, Rubio and S.D. were facing the same direction. Rubio was touching S.D. on her waist with his inner elbow area, and his hands were on S.D.’s private part for about 10 seconds. S.D. looked worried, punched Rubio in the stomach with her elbow, and said, “Leave me alone.” Rubio let go of S.D. and left the laundry room.
3. Celeste
Celeste was eight years old at the time of the incident, and nine years old at trial. She was doing homework inside her apartment when she heard S.D. and Jasmin outside. She joined them and was told by S.D. that S.D. had been in the laundry room when the man who lived next door to Celeste (whom Celeste identified at trial as Rubio) came in, told S.D. he could lift her up, and proceeded to do so even though S.D. told him not to.
Jasmin was also eight years old at the time of the incident and nine years old at trial. She was playing tag with her friends while S.D. was in the laundry room. Jasmin saw S.D. run from the laundry room to her apartment. S.D. told her that a man had come into the laundry, trying to grab her and spin her, and the man had touched her “private.”
Jasmin later talked to Detective Gottlieb at school, explaining that S.D. said the man told S.D. she was skinny and he wanted to carry her, and that S.D. said no but he grabbed her and spun her around and touched her private.
5. Officer Kelly Gottlieb
The incident was investigated by Vacaville Police Detective Kelly Gottlieb of the child abuse and sexual assault unit. Her training included sexual assault investigation and interviewing children with non-leading questions.
Detective Gottlieb conducted an interview of S.D. at school for approximately five or ten minutes. S.D. told her that Rubio said she was skinny, S.D. replied, “Thank you,” and Rubio asked, “Can I pick you up?” S.D. responded, “No.” S.D. told Gottlieb that Rubio’s “thing” felt both hard and soft. Another officer performed a Multi-Disciplinary Interview, during which S.D. confirmed that Rubio’s penis felt medium hard and then soft. In a photo lineup, S.D. identified Rubio as the person who touched her.
Gottlieb also interviewed Ximena, who told her that she used a chair to look through the laundry room to observe S.D. and Rubio.
Vacaville Police Officer Tim Garrido was dispatched to investigate the incident and spoke to S.D. S.D. reported that she had been playing near the laundry room and Rubio motioned for her to come over. Rubio told S.D. she was skinny, and S.D. replied that she knew she was skinny. He said he could lift her, and he proceeded to do so without her permission, rubbing her “against his privates.” S.D. seemed embarrassed and did not elaborate, and Garrido believed S.D. needed an in-depth interview at a different location with a female officer.
A defense investigator conducted a telephone interview of Ximena, who said she saw S.D. and also a man enter the laundry room. Through a window she saw the man with one hand on S.D.’s private area, holding S.D. up by the waist. Then he put her down.
C. Verdict and Sentence
The court instructed the jury that the count one violation of section 288, subdivision (a) allegedly occurred when Rubio caused S.D. to touch his genital area, while count two allegedly occurred when he touched S.D.’s genital area. The jury found Rubio guilty on count one and found the special allegation of substantial sexual conduct true. The jury found Rubio not guilty on the second count.
The court sentenced Rubio to state prison for the low term of three years. This appeal followed.
II. DISCUSSION
A. Prosecutor’s Closing Argument
Rubio contends the prosecutor’s “emotion-laden” beginning to her closing argument constituted prosecutorial misconduct and violated his Fifth and Sixth Amendment rights by appealing to the jury’s sympathy. We conclude otherwise.
To give context to Rubio’s argument on appeal, we set forth at length the initial portion of the prosecutor’s closing argument: “MS. JACOBS: Yes. The tragic or unfortunate thing about bringing a case like this, a child molestation case, to court, to trial, is that the child, the victim, has to come up here, take the stand, and testify about this horrible, embarrassing thing that happened to her. [¶] She’s asked to -- [¶] MS. CARRINGTON: Objection, improper argument. [¶] THE COURT: Overruled. [¶] MS. JACOBS: She’s asked to go back and remember and describe in greater detail than ever before this horrific thing and these crimes that were committed against her, and essentially relive the victimization. [¶] After she does all this, she actually comes forward and she takes the stand and she testifies. The defense essentially says for the rest of the trial, or even before the trial, in their opening statement, that this is all in her head and it didn’t happen and she shouldn’t be believed. [¶] The defense, in their opening statement, said that all he did was pick her up, put her down, that was it, and that she didn’t, until two hours later, according to their opening statement, once one of her friends said something, then decided to tell her mom and add in all these other details. [¶] Make no mistake about it, if they’re saying this didn’t happen, they’re either calling (S.) a liar or delusional. They might try to couch it in nice terms during their closing argument: Oh, we’re not calling her a liar, we’re just saying she’s not telling the truth or she’s exaggerating. Or: Oh, we’re not saying she’s delusional, she’s just a kid and confused and impressionable. [¶] Make no mistake about it. If they’re saying this didn’t happen, they’re calling her either a liar or delusional. [¶] And what’s so messed up about it, is it’s essentially using the reason [it] is so horrible against her. Because she is a child. This is embarrassing for her. She can’t articulate herself the same way as an adult. She can’t conceptualize things the same way, and her memory is not going to be strong because of her age. Essentially using that against her to say she shouldn’t be believed. [¶] Not only is it used against her, it’s used against her friends, Ximena, Celeste, Jasmin, who are even younger than (S.), who were seven and eight when these crimes occurred, saying that they’re kids and so like (S.), they also have a hard time articulating themselves like an adult and conceptualizing questions and their memory is not going to be as strong. [¶] And you heard some of the questions asked of them: Oh, did (S.) pressure you to say this? Oh, you were given the statement, which I think the longest one was 11 minutes or 13 minutes to listen to one. [¶] Oh, what did Detective Gottlieb ask you? Did she suggest anything? [¶] What did Ms. Jacobs or other people from her office say? Essentially implying these are questions that either they were pressured by (S.) to say this or Detective Gottlieb or my office. [¶] Essentially just the mere fact that they’re young and they’re kids, they’re somehow manipulated or coached into this testimony. [¶] And despite all that, despite none of them looking forward to this, they’re all nervous about having to come here and testify, despite it clearly being uncomfortable and hard for (S.), they still come forward, they still take the stand, and they do their job. They answer questions and they tell the truth. [¶] And the People they’re telling the truth to, the People they’re putting the trust in are all of you, the 13 of you, because you’re the ones that decide the verdict; not myself, not Ms. Carrington, not His Honor. You’re the ones that decide the truth and determine what happened. [¶] And the fact that they went through all this is reason to think -- there is no reason, excuse me, not to put your trust in them. Why else would they go through this? [¶] Which is why your role is so important, because it is the recognition of the truth and why we spent so much time during jury selection talking about certain principles of law. [¶] The way I look at it, and you’ll hear this when His Honor instructs on the law, I kind of look at the law as falling into one of two categories. Part of the law is instructing you about what facts I have to prove and my burden of proof, kind of those rules you have to follow. [¶] And then the second category is the law kind of helping you figure out ways to determine the truth. Which is why I chose you at the end of jury selection, because based on your answers, you convinced me you could follow these laws and you could determine the truth. [¶] Sometimes in these cases, there’s not going to be physical evidence presented, that sometimes there only is one witness to prove certain facts, that children, you have to take into consideration their age and their development when they testify, and the fact you understand that someone might have inconsistencies about certain details, but it doesn’t mean everything else they said is wrong or inaccurate. And because of your answers to those questions is why I chose you to be on the jury. [¶] So now this is the time where we put the case into your hands. You came here with different backgrounds, different experiences, but in this courtroom you wear the same hat and you have the same task before you. And that is to review the evidence, apply the law to the evidence and determine the truth. So I’m not going to ask you to vote guilty just because I said so, just because I’m the prosecutor on the case. I’m going to ask you to vote guilty because when you look at the evidence and you apply the law to the evidence, there’s only one truthful, just and reasonable verdict.”
“ ‘A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.’ ” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305.) Where, as here, the claim of prosecutorial error or misconduct is based on comments made to the jury, “we must view the statements in the context of the argument as a whole.” (People v. Dennis (1998) 17 Cal.4th 468, 522.) The prosecutor’s closing argument “may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.” (People v. Hill (1998) 17 Cal.4th 800, 819.) “ ‘It is, of course, improper to make arguments to the jury that give it the impression that “emotion may reign over reason,” and to present “irrelevant information or inflammatory rhetoric that diverts the jury’s attention from its proper role, or invites an irrational, purely subjective response.” [Citation.]’ ” (People v. Redd (2010) 48 Cal.4th 691, 742.) But it remains the defendant’s burden to show a reasonable likelihood that the jury understood or applied the prosecutor’s comments in an improper or erroneous manner. (People v. Dykes (2009) 46 Cal.4th 731, 771–772.)
3. Analysis
The opening portion of the prosecutor’s closing argument was that (1) the “tragic” aspect about child molestation cases is that the child victim has to relive the victimization; (2) the defense essentially called S.D. and the other child witnesses “a liar or delusional”; (3) it is difficult for children to articulate what happened; and (4) it is up to the jury to ascertain the truth. Considering the prosecutor’s comments as a whole and in context, we find no prosecutorial error or misconduct.
The thrust of the prosecutor’s remarks was not to invoke sympathy for the victim, inflame the jury, or evoke emotion to reign over reason, but to explain why the inconsistencies in the testimony of young S.D. and her friends should be attributed to the nature of the incident and the fact that they are children. This was a reasonable counter to the defense theory, which defense counsel suggested in opening statement and cross-examinations, that the children had exaggerated or made up the incident or that their assertions were a product of suggestive questioning. For example, S.D. was extensively cross-examined about each statement she gave to investigators and whether she had reviewed her video-taped interview, discussed her statements or testimony with her mother or the prosecutor, or was told what to say. Having observed the defense cross-examination of S.D. and the other child witnesses, it would have been readily apparent to the jury that the point of the prosecutor’s remarks was to counter the defense’s attack on the children’s credibility.[3]
Contrary to Rubio’s assertion, the prosecutor’s remarks did not impugn Rubio’s exercise of his Sixth Amendment right to trial and right to cross-examine adverse witnesses. The prosecution was not suggesting Rubio should be found guilty because the children were forced to go to court, relive the victimization, and be subjected to his attorney’s cross-examination. Rather, the prosecution was suggesting that the substance of Rubio’s attack on the children’s credibility lacked merit.
B. Instruction on Lewd Act Against a Child Under 14
Rubio next urges that CALCRIM No. 1110, defining a lewd act against a child under 14, is impermissibly argumentative because it tells the jury that “ ‘[a]ctually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or the child is not required’ ” for a conviction. Rubio is incorrect.
The trial court instructed the jury pursuant to CALCRIM No. 1110, as follows: “The defendant is charged . . . with committing a lewd or lascivious act on a child under the age of 14 years in violation of Penal Code section 288(a) by causing S.D. to touch his genital area. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully caused a child to touch the defendant’s body, either on the bare skin or through the clothing; [¶] 2. The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child; [¶] AND [¶] 3. The child was under the age of 14 years at the time of the act. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [¶] Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or the child is not required. [¶] It is not a defense that the child may have consented to the act.” (Italics added.)
Rubio did not object to the challenged language in CALCRIM No. 1110 during the conference on jury instructions or when the trial court read the instructions to the jury. Respondent contends that Rubio therefore forfeited the issue. (Citing People v. Hart (1999) 20 Cal.4th 546, 622; People v. Stone (2008) 160 Cal.App.4th 323, 331.) Rubio disagrees. (Citing § 1259; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Even if Rubio’s challenge is not forfeited, it lacks merit.
Section 288, subdivision (a) defines the charged offense as committed when a person “willfully and lewdly commits any lewd or lascivious act” upon a child under age 14, “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child.” (Italics added.) CALCRIM No. 1110 sets forth these elements. It then clarifies that actual arousal or gratification is not required. This is a correct statement of the law. (People v. Cordray (1963) 221 Cal.App.2d 589, 593.)
Rubio nonetheless contends the language indicating that actual arousal or gratification was not required “was argumentative in that it emphasized for the jury certain facts that the prosecution was not required to prove,” distracting the jury with “extraneous information unrelated to the elements of the offense.” We disagree. An instruction is argumentative when it recites facts drawn from the evidence in such a manner as to constitute argument to the jury in favor of one of the parties, in the guise of a statement of law. (People v. Rice (1976) 59 Cal.App.3d 998, 1004; People v. Flores (2007) 157 Cal.App.4th 216, 220.) Here, the challenged language in CALCRIM No. 1110 does not focus on specific items of evidence in an argumentative manner, but merely clarifies what the prosecution had to prove.
Rubio insists that, by informing the jury that “[a]ctually arousing . . . sexual desires . . . is not required,” CALCRIM No. 1110 is biased in favor of the prosecution because it “suggests that the prosecution’s burden is considerably lower than it actually is in a lewd act case and because the emphasis on what need not be proved distracts the jury from the elements the prosecution is required to establish.” Rubio fails to demonstrate how an accurate recitation of the prosecution’s burden could improperly favor the prosecution or distract the jury from what the prosecution must prove.
Rubio further contends that, since the first part of the instruction informed the jury what must be proved, its latter reference to what need not be proved is “duplicative.” To the contrary, the latter language was a clarification, not a duplication.
Finally, Rubio contends the instruction improperly implied that evidence of lack of arousal should not be given any weight at all in the case. This was error, he urges, because the absence of actual sexual arousal makes it less likely the perpetrator intended arousal (which the prosecutor must prove). However, nothing in CALCRIM No. 1110 precluded defense counsel from making that argument or suggested that such an argument was improper or lacked merit. Furthermore, if Rubio thought the jury should be instructed that it could consider lack of sexual arousal in evaluating sexual intent, he could have requested a pinpoint instruction. Without a request, the court was not required to instruct sua sponte. (People v. Rogers (2006) 39 Cal.4th 826, 878–879.)
C. Instruction on Substantial Sexual Conduct
The prosecution alleged that Rubio was ineligible for probation because the acts that formed the basis for each charge constituted substantial sexual conduct (§ 1203.066), and the court accordingly instructed the jury on substantial sexual conduct. Rubio contends the instruction was erroneous.
1. Law
Section 1203.066, subdivision (a)(8) precludes probation for “[a] person who, in violating Section 288 or 288.5, has substantial sexual conduct with a victim who is under 14 years of age.” Subdivision (b) of section 1203.066 provides that “ ‘[s]ubstantial 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.” (Italics added.) Case law holds that “[m]asturbation encompasses any touching or contact, however slight, of the genitals of the victim or the offender done with the intent to arouse the sexual desires of the victim or the offender.” (People v. Dunn (2012) 205 Cal.App.4th 1086, 1098, fn. 8 (Dunn).)
We review de novo to determine whether the instructions as a whole fully and fairly set forth the applicable law. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088; People v. Frye (1998) 18 Cal.4th 894, 957.) In conducting this review, we assume that jurors are intelligent persons capable of understanding and correlating the instructions. (Ramos, supra, at p. 1088.)
The prosecutor proposed, and the court gave, the following instruction without defense objection: “If you find the defendant guilty of the crimes charged in Counts 1 and/or 2, you must then decide whether the People have proved the additional allegation that the defendant was a person who had substantial sexual conduct with a victim who is under 14 years of age in the commission of each such crime. [¶] ‘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. [¶] ‘Masturbation’ means any touching or contact, however slight, of the sexual organ of the victim or defendant.”
3. Analysis
Noting the trial court’s sua sponte duty to instruct on the legal principles necessary for the jury’s understanding of the case, Rubio argues that the instruction on substantial sexual conduct was erroneous because it did not (1) direct the jury that it must find he acted with the intent to arouse the sexual desires of himself or the victim, or (2) tell the jury that it must find the allegation true beyond a reasonable doubt.
a. Intent
As mentioned, the jury had been instructed with CALCRIM No. 1110 in connection with the charged crimes. That instruction admonished the jury that a conviction required proof that Rubio “committed the act [of causing a child to touch the defendant’s body] with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child.” (Italics added.) Since the jury was instructed not to reach the issue of substantial sexual conduct unless it had found the defendant guilty of the charged crime, the jury addressed the substantial sexual conduct allegation only after it had determined that Rubio caused S.D. to touch his body “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires” of Rubio or S.D. It was therefore unnecessary to ask the jury again (or harmless error not to ask the jury again) whether Rubio’s act was committed with the “intent to arouse the sexual desires of the victim or the offender.” (Dunn, supra, 205 Cal.App.4th at p. 1098 fn. 8.)
b. Proof Beyond a Reasonable Doubt
As respondent notes, the instruction on substantial sexual conduct could have followed the pattern instruction of CALCRIM No. 3250, which specifies that the jury must find an enhancement allegation true beyond a reasonable doubt. Nonetheless, there is no reasonable likelihood in this case that the jury misperceived the standard of proof.
The court instructed the jury that, if it found Rubio guilty of either of the charges, it would then decide whether “the People had proved the additional allegation that the defendant was a person who had substantial sexual conduct with a victim who is under 14 years of age in the commission of each such crime.” (Italics added.) The jury was also instructed, under CALCRIM No. 220, that the prosecutor had the burden of proving defendant’s guilt beyond a reasonable doubt, and that whenever the jury was instructed that the People had to “prove” something, the People had to prove it beyond a reasonable doubt. As a whole, therefore, the court’s instructions directed the jury that the prosecutor’s burden on all issues – including the substantial sexual conduct allegation – was proof beyond a reasonable doubt. (See People v. Frye, supra,at p. 965.)
D. Substantial Evidence of Substantial Sexual Conduct
Rubio additionally contends there was no substantial evidence to support the jury’s finding that his contact with S.D. constituted “substantial sexual conduct.” Again, we disagree.
Section 1203.066, subdivision (b) defines “substantial sexual conduct” to include “masturbation,” which means “any touching or contact, however slight, of the genitals of the victim or the offender done with the intent to arouse the sexual desires of the victim or the offender.” (Dunn, supra, 205 Cal.App.4th at p. 1098, fn. 8.) The term “masturbation” includes touching of genitals over clothing. (People v. Whitlock (2003) 113 Cal.App.4th 456, 463; People v. Lopez (2004) 123 Cal.App.4th 1306, 1310, 1312.)
Here, S.D. testified that Rubio moved her body up and down against his “thing,” which she clarified was not a cell phone or other object and referred to his pubic area, and that his “thing” felt medium to hard against her body. That is a “touching or contact, however slight, of the genitals of the . . . offender.” (Dunn, supra, 205 Cal.App.4th at p. 1098, fn. 8.) From the evidence, it was also reasonable to infer that Rubio did this with an intent to “arouse the sexual desires of the victim or the offender.” (Ibid.) There was substantial evidence of “masturbation” for purposes of section 1203.066, subdivision (b).
E. Cumulative Error
Lastly, Rubio contends his conviction should be reversed because of the cumulative prejudice from the court’s multiple alleged errors. Because we find no error, Rubio’s contention of cumulative error necessarily fails.
III. DISPOSITION
The judgment is affirmed.
NEEDHAM, J.
We concur.
SIMONS, ACTING P.J.
BRUINIERS, J.[§]
(A152661)
[1] All statutory references herein are to the Penal Code.
[2] When asked on cross-examination if she turned around and lifted her arms for Rubio to pick her up, S.D. responded in the affirmative. On redirect, however, S.D. denied that she had turned around or lifted her arms, explaining that defense counsel had spoken quickly and she was unable to catch everything in counsel’s questions. S.D. also denied that Rubio had asked her how much she weighed; although Rubio had said things to her in Spanish as well as English, she did not understand Spanish well.
[3] Furthermore, the court instructed the jury that counsel’s arguments were not evidence and that it should not let sympathy influence its decision. We generally assume the jury followed the court’s instructions, and nothing in the prosecutor’s conduct suggests we should not make that assumption here. (See People v. Centeno (2014) 60 Cal.4th 659, 676.)
[§] Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice purusant to article VI, section 6 of the California Constitution.
