IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 22, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JUAN RAMON RODRIQUEZ, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F03422)
The opinion of the court was delivered by: Hull , J.
P. v. Rodriguez
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Juan Ramon Rodriquez of aggravated sexual assault (rape) of a minor under the age of 14 years and more than 10 years younger than defendant (Pen. Code, §§ 269, subd. (a)(1), 261, subd. (a)(2); undesignated statutory references that follow are to the Penal Code), as well as three counts of forcible lewd and lascivious acts on a child under the age of 14 years (§ 288, subd. (b)(1)). As a result, the trial court sentenced defendant to an indeterminate prison term of 15 years to life in addition to a determinate 6-year prison term. The trial court also imposed, among other fines and fees, a $242.29 jail booking fee and a $27.22 jail classification fee. (Gov. Code, § 29550.2.)
On appeal, defendant contends (1) Child Sexual Abuse Accommodation Syndrome (CSAAS) testimony should be per se inadmissible in California, (2) CALCRIM No. 1193 wrongly instructed the jury that it could use CSAAS evidence in assessing the victim's believability, (3) he received ineffective assistance of counsel when his trial attorney failed to object to most of the expert testimony regarding CSAAS, (4) the trial court erroneously precluded the defense from cross-examining the victim about her statement to the police that she was a virgin at the time she first reported the rape, (5) CALCRIM No. 3517 erroneously fails to instruct a jury that it may consider greater and lesser charged offenses in any order it wishes, (6) the cumulative effect of the alleged errors prejudiced his right to a fair trial, (7) section 654 requires that punishment for his conviction for lewd and lascivious touching for inserting his penis into the victim's vagina be stayed, and (8) the trial court wrongly imposed jail booking and classification fees pursuant to Government Code section 29550.2 without finding that he had an ability to pay the fees.
We modify the judgment to stay the sentence for one count of forcible lewd and lascivious touching (§ 288, subd. (b)(1)). In all other respects, we affirm the judgment.
Facts and Proceedings
On February 3, 2001, Ashley T. was 11 years old--about the same age as her friend Antonia. That evening, Ashley and Antonia went to a sleepover at the apartment of their friend, Blanca. The girls watched movies before turning out the lights and going to sleep at approximately 11:00 p.m.
Ashley fell asleep on a couch in the living room. She was wearing pajamas with a drawstring and a tank top. She had covered herself with a blanket. Sometime after midnight, defendant woke her up and told her to turn the lights off. Defendant is Blanca's brother. Ashley responded "why don't you turn off the lights," rolled over, and started going back to sleep. Five to 10 minutes later, defendant again woke Ashley. This time, defendant put his hand on Ashley's shoulder and rolled her onto her back. Defendant asked whether the boy with whom Ashley often hung out was her boyfriend. Ashley responded that the boy was not her boyfriend. Defendant then asked if she "had ever done anything sexual before" and kissed her cheek. Ashley was scared.
Defendant climbed on top of Ashley and put his hand over her mouth. Ashley tried to kick him, but she was unable to move. Defendant was much larger than she was, and she felt overpowered. Defendant told her that if she was loud, he would hurt her. Ashley believed him.
Defendant pulled Ashley's pants and underwear off before unbuttoning his own pants. Ashley was unable to get her pants back on. Defendant touched Ashley's vagina with his fingers. He then pulled his pants to his knees and inserted his penis into her vagina. Over the next two minutes, defendant inserted his penis three or four times. Ashley testified that "it hurt a lot." Defendant also kissed her on the lips. He then threatened that if she reported what happened, he would hurt or kill her. Ashley believed him.
Defendant got up and went to the bathroom for about 20 minutes before leaving the apartment. During this time, Ashley pretended to be asleep. After checking that defendant had really left, Ashley woke up Antonia. Ashley said that she did not feel comfortable and called her father. Fearing defendant, Ashley did not tell Antonia what had happened.
Ashley's father had just been released from custody following his arrest for driving under the influence. Her father came over to walk Ashley home. For fear of defendant, Ashley also did not tell her father what happened.
At home, Ashley found her underwear was spotted with blood. She threw the underwear away so her mother would not see it.
The next day, Ashley saw defendant but said nothing to him. Other than her friend, Marcello, Ashley did not tell anyone about what had happened.
In June 2007, Ashley left her house after an argument with her father. About two hours after she left the house, she spoke with a police officer. During the conversation, Ashley "felt that [she] needed to deal with it" and told the officer about defendant raping her years earlier. She testified, "I didn't know until a few years after it happened how to say it to someone and then I thought that it would be too late to say something; but I said something later because I was just sick of, you know, people saying all these things that weren't true about me." Ashley was uncomfortable with a physical sexual examination and refused to submit to one.
In March 2008, Sacramento County Sheriff's Detective Anthony Saika interviewed defendant. After initially denying that he knew the victim, defendant admitted touching Ashley's inner thigh near her vagina. Defendant "said something came over him and he decided to touch her, and he touched her inner thigh for approximately one to two minutes." Ashley woke up and began to cry. Defendant said "it's not like I got on top of her and covered her mouth." (Italics omitted.) The detective had not told defendant about Ashley's allegation that he had done those things.
Anthony Urquiza, Ph.D., a licensed psychologist, testified as an expert on CSAAS. Dr. Urquiza noted that he was not rendering an opinion about whether a particular child was molested or whether a particular individual perpetrated an act of child molestation. The witness further noted that he had not interviewed Ashley or reviewed the police reports in the case.
Dr. Urquiza explained that CSAAS "is a means to describe what commonly or typically happens with a child who has been sexually abused and to dispel any misunderstanding, misconceptions that therapists would have." To that end, CSAAS describes five categories of behaviors commonly engaged in by victims of child sexual abuse: secrecy; helplessness; entrapment and accommodation; delayed and unconvincing disclosure; and retraction or recantation. CSAAS is not a diagnostic tool and does not predict that every victim of child sexual abuse will exhibit all five categories of reactions.
Dr. Urquiza explained that the general public has "some misperceptions" about child sexual abuse. This is because "[m]ostly what people hear tends to be the more sensationalistic things that hit the media or newspaper or some television show."
On cross-examination, Dr. Urquiza acknowledged that false allegations of sexual abuse do occur. He also admitted that CSAAS is premised on the assumption that persons who report being sexually abused as a child are telling the truth.
Ashley's father testified that he did not recall anything unusual about her when walking her home from the sleepover. She did not mention anything about what had happened. And, Ashley did not appear to behave unusually the next day either.
Ashley's friend, Antonia, testified that she asked Ashley why she suddenly wanted to go home from the sleepover. Ashley replied that she just wanted to go home. Antonia did not observe anything unusual about Ashley that night or the next day at school. Ashley did not stop coming over.
Blanca testified that she and Ashley remained friends until Ashley moved away from the apartment complex several months after the sleepover. Blanca did not notice anything different about Ashley after the sleepover.
Defendant testified on his own behalf, acknowledging that he initially lied to the detective about knowing Ashley. Defendant also stated that he lied about his initial denials about touching Ashley on the night of the sleepover. Defendant explained that he lied because he was afraid of going to jail. Defendant admitted telling Detective Saika that he believed a person who had sexual intercourse with a child would be punished by 10 years' imprisonment, but that a person who only touched the thigh of a child would be sentenced to 2 years.
Defendant stated that he only rubbed the victim's thigh "close to her vagina" for one or two minutes. Defendant admitted feeling "[a]ttracted to her." Defendant testified that he touched Ashley's clothed thigh, contradicting an earlier statement to the detective that he might have touched her bare leg. Near the end of the interview with the detective, defendant said that he would "come clean" but needed to go home and talk with his family first. To this, defendant added: "I am not ending this at all. I will come back. I will tell you the truth, what really happened."
I Admissibility of Evidence Regarding CSAAS
Defendant acknowledges that he "does not dispute that CSAAS is currently admissible in California." Nonetheless, he urges us to reconsider our decision in In re S.C. (2006) 138 Cal.App.4th 396, in which this court held CSAAS evidence constitutes admissible evidence. We decline to depart from our prior precedent.
We begin by addressing the Attorney General's argument that defendant forfeited the issue for failure to raise it in the trial court. As respondent correctly points out, a party ordinarily must raise an objection in the trial court to preserve the issue for appeal. (People v. Wilson (2008) 44 Cal.4th 758, 800-801.) However, a party is not required to object when existing law would render the objection futile. (People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5.) Here, an objection would have been futile because the trial court was compelled to follow our decision in In re S.C., supra, 138 Cal.App.4th at page 418. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Consequently, defendant was excused from the requirement of a prior objection, and we proceed to consider the issue.
CSAAS evidence has been repeatedly held to be admissible in California for the limited purpose of dispelling misconceptions that lay jurors may have about how childhood victims of sexual abuse typically react. (See, e.g., People v. Brown (2004) 33 Cal.4th 892, 905-907; People v. Wells (2004) 118 Cal.App.4th 179, 188; People v. Housley (1992) 6 Cal.App.4th 947, 955; People v. Archer (1989) 215 Cal.App.3d 197, 205, fn. 2; People v. Bowker (1988) 203 Cal.App.3d 385, 392-394.) This court noted, in In re S.C., supra, 138 Cal.App.4th 396, that "it has long been held that in a judicial proceeding presenting the question whether a child has been sexually molested, CSAAS is admissible evidence for the limited purpose of disabusing the fact finder of common misconceptions it might have about how child victims react to sexual abuse." (Id. at p. 418 [collecting authority].)
Defendant urges us to depart from our decision in In re S.C. to hold that CSAAS evidence is per se inadmissible in California. In so arguing, defendant relies on out-of-state decisions--all of which antedate our decision in In re S.C. (See, e.g., State v. Stribley (Iowa Ct.App. 1995) 532 N.W.2d 170; Commonwealth v. Dunkle (Pa. 1992) 602 A.2d 830; Bussey v. Commonwealth (Ky. 1985) 697 S.W.2d 139; State v. Ballard (Tenn. 1993) 855 S.W.2d 557.) Defendant's argument, however, fails to acknowledge that other out-of-state jurisdictions have held CSAAS-type evidence to be admissible. (See, e.g., State v. Batangan (Hawaii 1990) 799 P.2d 48, 51-52; Matter of Nicole V. (N.Y. 1987) 71 N.Y.2d 112, 120-121; State v. Lindsey (Ariz. 1986) 720 P.2d 73, 74-75; Allison v. State (Ga.Ct.App. 1986) 346 S.E.2d 380, 384-385; State v. Brotherton (Iowa 1986) 384 N.W.2d 375, 378; State v. Pettit (Or.Ct.App. 1984) 675 P.2d 183, 185; State v. Myers (Minn. 1984) 359 N.W.2d 604, 609-610; Smith v. State (Nev. 1984) 688 P.2d 326, 327.) When appellate counsel advance arguments based on extra-jurisdictional surveys of reported decisions, it behooves them to disclose both favorable and unfavorable decisions. (Rules Prof. Conduct, rule 5-200(B) [counsel obligated to avoid misleading the court regarding the facts or law].)
In any event, we decline to depart from our prior decision in In re S.C., which itself followed the well-established rule that CSAAS evidence is admissible in California for the limited purpose of disabusing lay jurors of misconceptions that they may have about how victims of childhood sexual molestation are likely to react to the offenses of which they are a victim. (In re S.C., supra, 138 Cal.App.4th at p. 418.) Accordingly, we reject defendant's argument that CSAAS evidence be held per se inadmissible in California.
II CALCRIM No. 1193
The trial court instructed defendant's jury with CALCRIM No. 1193 as follows: "You have heard testimony from Anthony Urquiza regarding child sexual abuse accommodation syndrome. [¶] Anthony Urquiza's testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against him. [¶] You may consider this evidence only in deciding whether or not Ashley T.'s conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony."
Defendant contends this instruction erroneously allowed his jury to rely on CSAAS evidence to assess the victim's believability. We reject the contention.
As we noted in the discussion, part I, ante, CSAAS evidence is admissible in California for the purpose of educating juries about common misconceptions regarding typical reactions by victims of childhood sexual abuse. To this end, CALCRIM No. 1193 instructs the jury on the limitations of use for such evidence. The instruction properly apprises the jury that CSAAS evidence does not prove whether a particular person has been the victim of childhood sexual abuse or has perpetrated an act of sexual abuse against a child.
In addition to CALCRIM No. 1193, the trial court gave the following limiting instruction prior to Dr. Urquiza's testimony regarding CSAAS: "Ladies and gentlemen, I am going to permit Dr. Urquiza to testify as an expert in the area described by the District Attorney. At the end of the case, you will hear an instruction on this point. [¶] Dr. Urquiza will testify regarding Child Sexual Abuse Accommodation Syndrome. That testimony is not evidence that the defendant committed any of the crimes charged against him. [¶] You may consider that evidence only in deciding whether or not Ashley T.'s conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of the testimony." This instruction properly complemented CALCRIM No. 1193 in apprising the jury of the limited purpose for which CSAAS evidence was introduced.
Combined with the limiting instruction given by the court immediately prior to Dr. Urquiza's testimony, CALCRIM No. 1193 properly cautioned the jury not to use the CSAAS information as proof of defendant's guilt or evidence that Ashley was the victim of sexual abuse. Additionally, Dr. Urquiza's testimony expressly acknowledged that he was not providing evidence of Ashley's credibility or defendant's guilt.
The trial court did not err in instructing defendant's jury with CALCRIM No. 1193.
III Ineffective Assistance of Counsel for Failure to Object to CSAAS Testimony
Defendant contends he received constitutionally deficient legal representation when his trial attorney failed to object to four out of the five categories of typical victim reactions described by CSAAS. Specifically, defendant argues that the evidence was irrelevant and therefore inadmissible. We reject the argument.
Acknowledging at the outset that he seeks to challenge the admission of evidence for which his attorney lodged no objection in the trial court, defendant claims he received ineffective assistance of counsel for failure of his trial counsel to move for exclusion of most of the CSAAS evidence presented. Because a criminal defendant is entitled to effective assistance of legal counsel (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674]), we shall consider the claim despite the lack of objection.
To establish a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient under an objective standard of professional conduct and that it is reasonably probable that defendant would have achieved a more favorable result in the absence of his trial attorney's deficiency. (Strickland v. Washington, supra, 466 U.S. at pp. 687-688; People v. Holt (1997) 15 Cal.4th 619, 703.) We conclude defendant would not have received a more favorable result even if his trial attorney had objected to Dr. Urquiza's testimony regarding CSAAS.
Defendant argues that the only category of CSAAS relevant in this case concerned Ashley's delay in reporting the crime. We disagree. CSAAS evidence was relevant with respect to four of its five categories, as follows:
Ashley did not report the rape for approximately five years until she spoke to a police officer after walking out on an argument with her father. As defendant acknowledges, CSAAS evidence regarding delayed disclosure was relevant in explaining that victims of childhood sexual abuse often wait years before reporting the crimes.
Ashley did not tell her father or Antonia of the rape on the night that it occurred. Neither did she tell anyone else, other than her friend Marcello, about the rape for several years. Thus, testimony regarding secrecy was relevant. To be relevant, evidence does not need to be overwhelming or even strong. Instead, evidence is relevant and admissible so long as "'it tends to prove the issue before the jury.'" (People v. Freeman (1994) 8 Cal.4th 450, 491, quoting People v. Slocum (1975) 52 Cal.App.3d 867, 891.) Thus, Dr. Urquiza's testimony regarding victims' secrecy about childhood sex abuse was relevant and admissible.
During the attack, Ashley was overpowered by defendant. Following the attack, she believed defendant's threats that he would hurt or kill her if she told anyone about the rape. Ashley testified that defendant's threats effectively discouraged her from immediately reporting the rape. Thus, Dr. Urquiza's testimony regarding the helplessness category of CSAAS was relevant and admissible.
Entrapment and Accommodation
This category refers to the tendency of a victim of child sexual abuse to shut down feelings regarding the molestation. Here, the evidence showed that Ashley's father, Antonia, and Blanca all failed to observe any unusual behavior by Ashley following the attack. Evidence regarding the common method of coping by victims in the form of ignoring and hiding their feelings about the attack was therefore relevant and admissible in this case.
Retraction represented the only category of reactions described by CSAAS that was not exhibited by Ashley. However, the testimony regarding recantation by a small percentage of child sexual abuse victims was brief--encompassing only a single question and answer. Any error in the admission of this small amount of noninflammatory evidence was harmless.
Given the relevance of the CSAAS evidence to explain Ashley's reactions to the rape in the days and years following the crime, the trial court did not abuse its discretion in failing to exclude Dr. Urquiza's testimony. (People v. Coffman & Marlow (2004) 34 Cal.4th 1, 83.) Consequently, defense counsel was not ineffective for failing to object to the relevance of CSAAS evidence regarding all categories except retraction. For lack of prejudice arising from the single question and answer concerning retraction by victims of childhood sexual abuse, we reject defendant's claim of ineffective assistance of counsel and his derivative claims of federal constitutional error.
IV Restriction on Cross-Examination of the Victim
Defendant contends the trial court erred in disallowing him from cross-examining Ashley about lying to the police about being a virgin. We find no error.
Prior to trial, defense counsel moved to impeach Ashley with a statement to the police--made at the time she first reported the rape by defendant--to the effect that she was a virgin. The following colloquy ensued:
"THE COURT: [¶] . . . [¶] Let me ask you, Mr. Ruiz [defense counsel]: What specifically are you proposing to do if the Court gives you permission?
"MR. RUIZ: Ask the victim in this case why she lied to law enforcement about not being a virgin when she was asked that question; and she responded initially with, yes, I am a virgin. [¶] She later told Detective Saika--I believe it was--that, in fact, she lied about that, that she, in fact, was not a virgin so that was the lie that she told law enforcement. I think that's important.
"THE COURT: What is the answer that you expect to elicit when you ask her why she lied?
"MR. RUIZ: Oh, I believe her answer to the detective was that she had other boyfriends that were over the age of 18 and somehow, I think by implication, she wanted to protect them."
The prosecutor objected to the proposed cross-examination, arguing that the defense had not filed a written motion as required by Evidence Code section 782*fn1 and that the sexual conduct of the victim was irrelevant and unduly prejudicial.
The prosecution then stated its intent to elicit testimony that Ashley reported the rape without reference to the fact that she made the disclosure to the police after getting into an argument with her father about her virginity. Defense counsel objected: "I think we are getting into an area where I am not going to be able to effectively cross-examine this alleged victim, Your Honor." Defense counsel argued "what prompted that argument [between Ashley and her father] is, in part, the reason why she made up many of these allegations against [defendant]."
The court allowed evidence to be presented regarding the argument between Ashley and her father, including the fact that Ashley's father accused her of not being a virgin. However, the court excluded evidence regarding her lie to the detective about being a virgin. In so ruling, the trial court explained "that does implicate [Evidence Code section] 782, risk of confusion of issues. It has less probative value, in that she did eventually disclose the sexual conduct. [¶] So I think the probative value is greatly undercut by her admission that she had sexual contact with a boyfriend over the age of 18."
The Attorney General asserts that defendant failed "to object on the ground that he was denied his constitutional right to confrontation and the claim is forfeited." An examination of the proceedings immediately prior to trial, however, show that the defense squarely addressed the issue of whether Ashley could be cross-examined regarding her initial lie to the police about being a virgin.
Defense counsel sufficiently apprised the trial court of his intent to question the victim regarding her initial discussion with the police to preserve the issue for appeal--including the issue of whether the trial court's ruling violated his federal constitutional right to confrontation. "'As a general matter, no useful purpose is served by declining to consider on appeal a claim that merely restates, under alternative legal principles, a claim otherwise identical to one that was properly preserved by a timely motion that called upon the trial court to consider the same facts and to apply a legal standard similar to that which would also determine the claim raised on appeal.'" (People v. Cole (2004) 33 Cal.4th 1158, 1195, fn. 6, quoting People v. Yeoman (2003) 31 Cal.4th 93, 117.) Accordingly, we proceed to consider defendant's claim that the trial court denied him the right to confrontation by disallowing him from fully cross-examining Ashley.
Under Evidence Code section 352, the trial court has wide discretion to limit the scope of cross-examination of witnesses on issues collateral to guilt or innocence. "'"[T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." [Citation.]' (People v. Ayala (2000) 23 Cal.4th 225, 301; accord, People v. Lewis (2001) 26 Cal.4th 334, 374-375.) . . . Defendant claims the court's ruling deprived him of his fundamental rights to confrontation and to present a defense, under the Sixth and Fourteenth Amendments to the federal Constitution. However, 'we have repeatedly held that "not every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance." [Citation.]' (Ayala, at p. 301; see also Lewis, at p. 375.)" (People v. Harris (2008) 43 Cal.4th 1269, 1291-1292.)
"'Two additional factors tend to support the judge's exercise of discretion [to exclude cross-examination on a collateral issue]. A witness may have a strong reason to lie about the collateral fact which reason would furnish no motive to lie in his other testimony. Where such a situation exists, the possible inference that a witness false in part of his testimony is not to be trusted as to other parts is weakened. . . .
"'Secondly, . . . [a] party may not cross-examine a witness upon collateral matters for the purpose of eliciting something to be contradicted. . . . This is especially so where the matter the party seeks to elicit would be inadmissible were it not for the fortuitous circumstance that the witness lied in response to the party's questions.'" (Winfred D. v. Michelin North America, Inc. (2008) 165 Cal.App.4th 1011, 1030, quoting People v. Lavergne (1971) 4 Cal.3d 735, 742-744, brackets added.)
Here, the trial court did not err in concluding that the victim's possible history of sex with boyfriends did not have any relevance to the question of whether defendant raped her years earlier. The trial court noted that Ashley's initial lie to the police did have some minimal relevance with respect to her credibility, but that delving into the issue was more prejudicial and confusing than probative. And, as the trial court noted, Ashley's retraction of her initial lie to the police and explanation for why she lied further undercut the probative value of the cross-examination proposed by the defense.
The trial court did not deny defendant his right to confrontation by excluding the proposed cross-examination of the victim as more prejudicial than probative. (People v. Harris, supra, 43 Cal.4th at pp. 1291-1292.)
V CALCRIM No. 3517
The trial court instructed defendant's jury pursuant to CALCRIM No. 3517, as follows:
"If all of you find the defendant is not guilty of a greater crime, you may find him guilty of a lesser crime, if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime. A defendant may not be convicted by both a greater and a lesser crime for the same conduct.
"Lewd and lascivious act upon a child under age 14 years is a lesser crime with regard to lewd or lascivious act by force or fear upon a child under 14 years as charged in Count Three.
"It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have found the defendant not guilty of the corresponding greater crime.
"For any charge with a lesser crime, you will receive a form for indicating your verdict on both the greater and the lesser crime. The greater crime is listed first. When you have reached a verdict, have the foreperson complete the form, sign it, and date it. Follow these directions before writing anything on the form:
"First, if all of you agree that the People have proved beyond a reasonable doubt that the defendant is guilty of the greater crime as charged, check the box for guilty for that crime and sign, date, and return the form. Do not check anything for the lesser crime.
"Two, if all of you cannot agree whether the People have proved beyond a reasonable doubt that the defendant is guilty of the greater crime as charged, inform me only that you cannot reach an agreement and do not write anything on the verdict form.
"Three, if all of you agree that the People have not proved beyond a reasonable doubt that the defendant is guilty of the greater crime and you also agree that the People have proved beyond a reasonable doubt that he is guilty of the lesser crime, check the box for not guilty for the greater crime and check the box for guilty of the lesser crime. You must not check anything for the lesser crime unless you have checked not guilty for the greater crime.
"Four, if all of you agree that the People have not proved beyond a reasonable doubt that the defendant is guilty of either the greater or the lesser crime, check the box for not guilty for both the greater and the lesser crime.
"Five, if all of you agree that the People have not proved beyond a reasonable doubt that the defendant is guilty of the greater crime but all of you cannot agree on the verdict for the lesser crime, check the box for not guilty of the greater crime and then sign, date, and return the form. Do not check anything for the lesser crime and inform me only that you cannot reach an agreement about that crime."
Defendant contends this instruction violates the California Supreme Court's holding in People v. Dewberry (1959) 51 Cal.2d 548 (Dewberry). Specifically, he argues: "The gist of the principle embodied in Dewberry is that if the jury has determined that the defendant is guilty of a crime, but cannot determine whether to convict on the greater or the lesser offense, they must convict only of the lesser offense." To this end, defendant argues that the jury should have been instructed:
"If you are convinced beyond a reasonable doubt and unanimously agree that the defendant committed a lewd and lascivious act on a child under 14 years of age, but you have a reasonable doubt whether that act was committed by the use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the child, you must give the defendant the benefit of the doubt and find him not guilty of count 3 and guilty of the lesser offense of non-forcible lewd and lascivious conduct on a child under 14 years of age."
Defendant further argues that CALCRIM No. 3517 errs in that it "advises the jury of the order in which they should consider the greater and lesser offenses in terms of completing the verdict form."
We reject defendant's challenge to CALCRIM No. 3517.
In Dewberry, supra, 51 Cal.2d at page 555, our Supreme Court held that "when the evidence is sufficient to support a finding of guilt of both the offense charged and a lesser included offense, the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense." In short, a defendant may not be convicted of an offense unless a jury unanimously agrees on guilt. CALCRIM No. 3517 expresses this rule by instructing the jury to indicate guilt on the verdict form for the greater offense only if there exists unanimous agreement regarding defendant's guilt on that charge. As part of the instruction, the trial court also correctly explained that lewd and lascivious acts upon a child under age 14 years (§ 288, subd. (a)(1)) is a lesser crime with regard to lewd or lascivious acts by force or fear upon a child under 14 years (§ 288, subd. (b)(1)) as charged in count 3.
In the event of a disagreement among jurors, CALCRIM No. 3517 instructs the jury to report the lack of agreement to the trial court. The instructional language now proposed by defendant could give rise to an acquittal of the greater charge without jury unanimity about his guilt on the forcible lewd and lascivious acts charge. However, both defendant and the People are entitled to jury unanimity with respect to any charge. (See People v. Washington (1990) 220 Cal.App.3d 912, 915 [criminal defendants entitled to remain free of conviction unless jury unanimously convicts]; Brown v. Municipal Court (1978) 84 Cal.App.3d 180, 182 [defendant not entitled to acquittal except by unanimous agreement of jurors].)
CALCRIM No. 3517 properly instructed the jury to convict defendant on the lesser included charge only if it unanimously agreed that he was not guilty of the greater offense but was guilty of the lesser offense. This instruction did not run afoul of Dewberry.
That CALCRIM No. 3517 provided defendant's jury with an orderly approach to filling out the verdict forms did not constitute error. The jury still had the prerogative to consider the evidence and charges in any order that it wished. To this end, the instruction expressly noted, "It is up to you to decide the order in which you consider each crime and the relevant evidence . . . ." Consequently, we reject defendant's assignment of error regarding the instruction's guidance on how to fill out the verdict forms for count 3.
CALCRIM No. 3517, as given, did not violate the California Supreme Court's decision in Dewberry because it did not allow defendant to be convicted of any offense for which a unanimous jury failed to agree on his guilt.
VI Regarding Cumulative Error
Defendant contends that the cumulative prejudice of evidentiary and instructional errors he claims to have occurred at his trial require reversal of his conviction. We have rejected all of his claims of error and therefore discern no prejudice warranting reversal. (People v. Jablonski (2006) 37 Cal.4th 774, 832.)
VII Section 654
Defendant relies on section 654 to argue that the sentence for count 2 (charging a lewd and lascivious act committed by insertion of penis on a child under age 14 (§ 288, subd. (b)(1)) must be stayed.
Subdivision (a) of section 654 provides, in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
As defendant points out, the trial court noted that the conduct alleged in count 2 encompassed the same conduct as that alleged in count 1 (rape of a child under age 14 by person more than 10 years older than the victim (§ 261, subd. (a)(1)). The Attorney General concedes the point and we accept the concession. The lewd and lascivious act charged in count 2 was the same as the conduct alleged in count 1. Accordingly, we shall order defendant's sentence for the lesser offense (count 2) stayed under section 654.
VIII Jail Fees (Gov. Code, § 29550.2)
Defendant contends jail booking and classification fees imposed under Government Code section 29550.2 must be stricken. Defendant asserts that there was no evidence of his ability to pay and no evidence that the fees actually amounted to the sum assessed by the trial court. The Attorney General responds that defendant forfeited these issues by failing to object in the trial court. We agree that defendant's failure to object to the fees now precludes him from raising the issue for the first time on appeal. Even when a "court [is] required to initially determine the defendant's ability to pay, his failure to object or present contrary evidence waive[s] the right to complain on appeal." (People v. McMahan (1992) 3 Cal.App.4th 740, 750.)
The judgment is modified to stay defendant's prison sentence for violating section 288, subdivision (b)(1)--as alleged in count 2, such stay to become permanent upon completion of his prison sentence. Defendant's prison sentence remains an indeterminate 15 years to life for the aggravated sexual assault (count 1) plus a determinate 6-year term for the forcible lewd and lascivious act described in count 3. Defendant's convictions are affirmed. As modified, the judgment is affirmed. The superior court is directed to issue an amended abstract of judgment reflecting the modification and to forward a certified copy of the same to the Department of Corrections and Rehabilitation.
We concur: BLEASE, Acting P. J. MAURO, J.