People v. Viruncruz CA5 ( 2022 )

Filed 10/7/22 P. v. Viruncruz 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F081294
Plaintiff and Respondent,
(Super. Ct. No. BF173639A)
v.
HILARIO VIRUNCRUZ, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Michael E.
Dellostritto, Judge.
Spolin Law and Aaron Spolin for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian
Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Walking home from a friend’s house, 13–year–old S.M. came upon appellant
Hilario Viruncruz working on his truck by the side of the road. Viruncruz asked S.M. if
he would help do some work for him. S.M. said he would but needed to ask his mother
first. Viruncruz offered him a ride home. During the drive, Viruncruz casually touched
S.M. on the shoulder, neck, and abdomen. But instead of driving S.M. home, Viruncruz
drove him to an unfamiliar neighborhood, forced his hand down S.M.’s pants, and
touched his genitals. Although Viruncruz tried to hold him down, S.M. was able to break
free, open the truck’s door, and flee.
A jury convicted Viruncruz of kidnapping with the intent to commit a lewd and
lascivious act on a person under the age of 14 (Pen. Code, §§ 209, subd. (b)(1) & 288)
and committing a forcible lewd and lascivious act on a person under the age of 14 (Pen.
Code, § 288, subd. (b)(1)). As to the forcible child molest charge, the jury further found
two enhancing allegations true: In the course of the molest, Viruncruz kidnapped S.M.
(Pen. Code, § 667.61, subd. (e)(1)), and in doing so he substantially increased the risk of
harm to S.M. (Pen. Code, § 667.61, subd. (d)(2)).
The statutorily mandated sentence on the child molest charge with both enhancing
allegations is life without the possibility of parole. (Pen. Code, § 667.61, subd. (j)(1).)
Finding such a sentence unconstitutionally cruel and unusual, the trial court struck the
first enhancement, imposed the second, and sentenced Viruncruz to an ind eterminate
term of 25 years to life with the possibility of parole. (Pen. Code, § 667.61, subd. (j)(2).)
For the kidnapping conviction, the court imposed a life with the possibility of parole
sentence but stayed it under Penal Code section 654.
Viruncruz contends: (1) Insufficient evidence supports his convictions. (2) The
trial court prejudicially erred by admitting evidence of child pornography-related internet
searches and website links found by police on his cellphone. (3) The prosecutor
committed prejudicial misconduct by cross-examining him about his attempts to obtain
legal counsel before he was arrested. (4a) The prosecutor also committed prejudicial
misconduct during her closing arguments, and (4b) even if the claim was forfeited, trial
counsel was constitutionally ineffective for failing to object. (5) The trial court
prejudicially erred by failing to give sufficient jury instructions on aggravated
2.
kidnapping’s lesser included offenses. (6) Even if individually harmless, the cumulative
effect of the trial errors together constitutes reversible error. (7) Finally, in supplemental
briefing, he claims his sentence must be reversed and remanded for resentencing in light
of amendments made to section 1385 while this appeal was pending and which became
effective on January 1, 2022.
We reject Viruncruz’s evidentiary claims, and his claim the prosecutor’s cross-
examination was improper. We also find there was no instructional error.
We find the prosecutor may have made marginally improper arguments in her
closing arguments, but because they were not objected to, we do not decide the issue
since the claim was forfeited. Similarly, we reject Viruncruz’s ineffective assistance of
counsel contention because he has not demonstrated his trial counsel was constitutionally
ineffective for failing to object to the prosecutor’s remarks. And, with a single forfeited
error, there are no errors to cumulate and that claim fails as well.
As for Viruncruz’s resentencing contention, we find he is not eligible for
resentencing under amended Penal Code section 1385 because it does not apply to the
enhancements imposed in this case.
The judgment is therefore affirmed.
FACTS
Because Viruncruz raises a sufficiency of the evidence claim, we lay out the
underlying facts in some detail, doing so as we must in the light most favorable to the
judgment. (People v. Abilez (2007) 41 Cal.4th 472, 504.) Additional facts relevant to the
other issues Viruncruz raises are set forth below.
Thirteen-year-old S.M. was walking home from a friend’s house one morning in
September 2018 and saw Viruncruz working on his truck by the side of the road.
Viruncruz asked S.M. to help him with the truck and if he wanted to do some yard work
for him. S.M. said he would have to ask his mother. Viruncruz said there was no time
3.
for that because he was late, but S.M. insisted he needed to ask his mother. Viruncruz
then offered to take S.M. to his mother, and S.M. agreed.
S.M. told Viruncruz where his house was, but Viruncruz drove past it. S.M. said
at that point his “heart started to beat.” S.M. asked Viruncruz where they were going,
and he replied, “The next street.” But they passed the next street without stopping. S.M.
told Viruncruz, “my house is not this way,” to which he replied, “I know.” S.M. thought
the truck’s doors were locked because the passenger lock knob was “down,” although he
did not try to unlock his door at this point.
Viruncruz asked S.M. for his shirt size so he could get him a work shirt. S.M. said
he was a medium, but Viruncruz said he wanted to check and pulled S.M.’s collar back.
Viruncruz said he wanted to be a chiropractor and asked S.M. if he could massage his
shoulders. He also patted S.M.’s abdomen, saying that S.M. was “getting too fat.”
Viruncruz massaged S.M.’s shoulders both over and under his shirt. Viruncruz then gave
S.M. $20. S.M. tried to give it back, but Viruncruz refused.
After they had been driving around for about 30 minutes, Viruncruz parked in an
area unfamiliar to S.M. He asked Viruncruz where the job was, and Viruncruz replied
that he could not find it and would have to call his brother. Viruncruz cleared everything
off the middle of the seat and tried to get S.M. to lie down. He then grabbed S.M.’s
shoulders and tried to pull him down on the seat. S.M. said “No,” while Viruncruz said,
“Come on, come on.”
S.M. tried to move Viruncruz’s hands away, but Viruncruz placed them on S.M.’s
abdomen and tried to put them down his pants. Viruncruz was able to get his hand under
S.M.’s underwear where he then touched S.M.’s genitalia with the palm of his hand.
S.M. told him to stop but Viruncruz looked at him, smiling, and said, “Come on, I’ll give
you more money.”
4.
S.M. moved his body and was able to pull Viruncruz’s hand out of his pants. He
tightened his belt to prevent Viruncruz from doing it again, but Viruncruz tried to grab
his arm to keep him in the truck and said, “You’re not going.”
S.M. tried to unlock the passenger side door, both when they were moving and
when they had finally stopped. But each time he pulled up on the lock knob it went down
again. S.M. finally held the lock knob in the up position and was able to open the door
with his other hand. S.M. broke free, got out, and ran to a nearby house. He said that as
he ran, he thought he was going to die.
S.C. was in her living room when her husband answered the door. A very upset
S.M., looking backward over his shoulder, asked them for help. 1 He said someone had
abducted him and put his hands down his pants. S.C. called 911 while her husband and
21-year-old son ran outside looking for the assailant.
Kern County Sheriff’s Detective Ryan Sorrow arrived and interviewed S.M. who
described Viruncruz and the truck. Surveillance footage was obtained from two nearby
homes which showed a truck matching S.M.’s description in the area at the time of the
incident.
Two days later, Sheriff’s Deputy Ryan Pollack received a call about a truck
matching the description of the truck in the footage. Responding to the location, he
compared the truck to a still image taken from the footage and concluded it was the same
vehicle. Pollack watched Viruncruz removing a trash can from the truck’s trailer. He
approached and showed Viruncruz the still photo and Viruncruz admitted the picture was
of his truck.
1S.C. said she later viewed footage from her home-surveillance camera that
showed S.M. running from the street, across the sidewalk and yard, and up to her front
door, knocking, “looking nervous and looking back and asking for help before we opened
the door.”
5.
Pollack notified Sorrow he had a suspect. Sorrow brought S.M. to the scene, and
S.M. identified the truck and Viruncruz as the man who had sexually assaulted him. S.M.
also recognized a cooler inside the truck, and how the steering wheel cover and the
truck’s seat were “all messed up.” S.M. told Sorrow the air conditioner in Viruncruz’s
truck had a distinctive odor, which he described as being like the gas used at dentists’
offices when they are extracting teeth and “put that facemask on you.” S.M. said the
odor had made him lightheaded and said he started to open and close his eyes. He
recognized the same odor inside the truck on the day he identified it for Sorrow.
About 12,000 pages of data were forensically extracted from Viruncruz’s cell
phone. The evidence technician who extracted it said the data was linked to an iCloud
account “hvirun@gmail.com.”
Sheriff’s Detective Paul Sanchez examined the data extraction report and said
there were several photographs of Viruncruz and his family, and messages sent by a
person identifying himself as “Hilario” requesting information because he had obtained a
new phone. There were web searches for the name “Hilario Virun,” and emails from a
“Hilario” indicating he was with “HVC Landscaping.” The data ranged from August
2016 to August 2018.
Sorrow interviewed Viruncruz after his arrest. Viruncruz told him he had two last
names, “Virun” and “Cruz,” but went by “Virun” most of the time. Viruncruz said the
name of his business was HVC Landscaping, and “HVC” referred to his initials.
Sanchez also found evidence of numerous sexually based web searches, primarily
for male children between the ages of 11 and 13. He said the data showed 14,018 web
searches related to such male children, and the web history results showed about 3,808
specific web sites which involved sexual content related to young males. Search terms
included “ninos violados” and “peliculas de robo de ninos,” which Sanchez explained
6.
meant “boys violated,” and “movies of kidnapped boys.” These data ranged between
October 2016 and July 2017.2
The extraction report also showed several web searches were made during the time
Viruncruz was detained in the back of Pollack’s patrol car. At 11:38 a.m. a search was
entered for, “Steps to take if you are accused of child molestation.” At 12:26 p.m., “Do
child molesters last long in jail.” And at 12:27 p.m., “Penal Code Section 288.” Pollack
testified he never told Viruncruz what was being investigated or why he was being
detained, either before or after placing him in the patrol car.
In the defense case, Viruncruz called S.M.’s parents as witnesses. Both were
unemployed at the time and said they were having financial issues. They testified it was
not unusual for S.M. to look for work. Father testified he normally came home to ask
permission to take a job. Mother testified he did not normally ask permission, but said he
usually worked only for neighbors and friends. Both said any money S.M. earned was
for himself, not to help support the family.
Both parents also testified S.M.’s behavior changed dramatically after the incident,
with mother explaining S.M. would no longer leave the house, and Father referring to a
family trip to Magic Mountain by saying S.M. would not leave his side. When asked if
S.M. was a “fairly friendly” young man, Father replied, “He used to be.” Mother testified
about their attempts to get S.M. into counseling but only recently succeeding because of
insurance problems.
Viruncruz testified on his own behalf. He said that on the date in question (a
Saturday), he dropped his lawnmowers off at a lawnmower repair place. After unloading
the lawnmowers, his hands were stained green, and he did not clean them. As he was
driving away, someone honked at him and gestured there was something wrong with his
2 The record contains many more extremely explicit search terms that we need not
list here; their import is clear and Viruncruz does not question their meaning.
7.
lights. He pulled over onto a side street and found one of his trailer’s signal lights was
not working. He checked under the hood and then under the body of the truck to try to
find the problem.
While Viruncruz was under the driver’s side of the truck, he saw a young man
standing next to the truck. The young man asked if he need ed any help with his work.
Viruncruz told him it was his day off. The young man said he needed work because his
father was disabled, his mother was the only person working, and the family was going to
have to move to a different state.
After Viruncruz finished checking his truck, the young man asked him for a ride to
his aunt’s house. Feeling sorry for the young man, Viruncruz agreed. The young man
told him which direction to drive but did not say exactly where his aunt lived.
Eventually, the young man directed Viruncruz to a residential area and asked him to stop.
Viruncruz said the young man took his seatbelt off and asked for $20. He took out
his wallet, which had a little more than $900 in it, and pulled out a $20 bill. The young
man took the bill and then reached out to grab his wallet. He placed his wallet between
his legs and asked the young man why he wanted to steal from him. The young man just
laughed.
Viruncruz said he grabbed the young man’s hand to try to get his $20 bill back but
decided to let go so as not to hurt him. The young man then hit Viruncruz with his
elbow, opened the door, and left. He said he did not report the incident to police because
the young man only took $20 from him, and he thought he needed the money. He
returned home and went with his wife to Salinas for a birthday party.
On the following Monday, Viruncruz came back to work and saw pictures of what
looked like his truck on social media in relation to a kidnapping investigation. He was
not sure the truck he saw on social media was his until the deputy stopped him. While
detained in the back of the patrol car, he saw the young man who he said had tried to steal
his wallet get out of one of the other patrol cars and go over to his truck to identify it.
8.
While he was in the back of the patrol car, he used his cell phone to tell his wife that he
had been arrested. He said he then used his phone to search for an attorney.
On cross-examination, the prosecutor inquired about the other back seat web
searches and when Viruncruz was confronted by the wording of some of them, he
responded, “I can’t give you an explanation, because — I can’t give you an explanation
for that, because that’s something I can’t tell you, because I don’t remember having
co[nn]ected on that.” He also insisted he did not give rides or money to children, and this
was the first time he had ever offered a ride to a child and the first time he had ever given
a child money. He acknowledged being interviewed by Sorrow about what he did on the
date in question and not telling Sorrow about his encounter with S.M. He explained he
did not say anything about that because Sorrow “already knew why I had been arrested.”
As for the thousands of web searches for sexual content regarding minors, Viruncruz
insisted “the searches I can’t say belong to me.”
The defense introduced evidence from the clothing S.M. wore on the day of the
incident. A DNA swab taken from S.M.’s belt buckle showed a mixture from at least two
contributors, but Viruncruz was excluded as a potential contributor. Another swab from
the inside of S.M.’s pants showed a single contributor, but Viruncruz was again excluded.
Finally, a profile from a swab taken inside S.M.’s underwear showed a DNA mixture, but
it was inconclusive as to Viruncruz’s DNA, and S.M. could not be excluded as a
contributor.
Viruncruz’s brother testified he sold the truck to Viruncruz in 2015 and had not
ridden in it since. He said the windows, doors, and seats were all manually controlled,
not electronic, and at the time he sold it, the driver would need to reach across in order to
lock or unlock the passenger side door.
The prosecutor recalled Sorrow, who testified in more detail about his interview
with Viruncruz. When Viruncruz first described the events of the day of the incident, he
said he had dropped his lawnmowers off for repairs and had gone to Salinas for a
9.
birthday party, but did not mention anything about his interactions with S.M. When
Sorrow asked Viruncruz if he knew why he was being questioned, Viruncruz said they
were accusing him of being a child molester. It was only when Sorrow inquired as to
what he meant by that, that Viruncruz finally related his version of the events involving
S.M.
DISCUSSION
I. Sufficiency of the Evidence
Viruncruz first contends the jury’s verdicts are not supported by substantial
evidence. We conclude otherwise.
A. Legal Background and Standard of Review
“In reviewing a sufficiency of the evidence claim, the reviewing court’s role is a
limited one.” (People v. Smith (2005) 37 Cal.4th 733, 738.) “[W]e review the record ‘in
the light most favorable to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ ” (People v. Westerfield (2019) 6 Cal.5th 632, 713.) “ ‘[W]e review
the whole record to determine whether any rational trier of fact could have found the
essential elements of the crime… beyond a reasonable doubt.’ ” (People v. Penunuri
(2018) 5 Cal.5th 126, 142, original italics.) “ ‘ “Conflicts and even testimony [that] is
subject to justifiable suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination depends.” ’ ” (Ibid.)
“ ‘We presume in support of the judgment the existence of every fact the trier of
fact reasonably could infer from the evidence. [Citation.] If the circumstances
reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be reconciled with a contrary
finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a
10.
witness’s credibility.’ ” (People v. Covarrubias (2016) 1 Cal.5th 838, 890
(Covarrubias).)
Thus, “[a] reversal for insufficient evidence ‘is unwarranted unless it appears “that
upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the
jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Simply put, Viruncruz
“bears an enormous burden” to prevail on a sufficiency of the evidence claim. (People v.
Sanchez (2003) 113 Cal.App.4th 325, 330.)
B. Analysis
Viruncruz does not contend S.M.’s testimony, if believed, did not establish the
elements of the offenses with which he was charged. Instead, he argues we should
“consider the lack of physical evidence” against him as well as “the inconsistent,
untruthful claims put forth by the alleged victim,” as failing to establish sufficiently
reliable support for the jury’s verdicts. In other words, he claims S.M. was not credible
and there was insufficient corroborative physical evidence. 3
As for his lack of “physical” evidence claim, Viruncruz first points to the fact
Viruncruz’s DNA was not found on S.M.’s clothing. He provides no authority for a
claim a defendant’s DNA must be detected to justify a conviction.
Moreover, the DNA expert testified that, unlike biological fluids, “touch” DNA is
normally in a much smaller amount, and she could not say “one way or the other”
whether it was possible Viruncruz’s DNA “was in the victim’s underwear.” Similarly,
the fact that Viruncruz’s DNA was not found on S.M.’s belt buckle or zipper is not
significant because S.M. did not say Viruncruz touched his belt or his zipper. Absence of
evidence is not evidence of absence.
3 In making this latter claim, Viruncruz does not mention the “physical evidence”
that was present, i.e., the thousands of web searches found on his phone as well as the
searches he made while in the back of Pollack’s patrol car.
11.
Viruncruz next points to the fact that “no grease, oil, or any other substance was
found” on S.M.’s clothing. He concludes from this that S.M. must have lied in his
testimony when he supposedly said Viruncruz “had previously been working on his truck
and had oil-covered hands, and . . . the man was not wearing gloves.” Furthermore,
because Viruncruz testified the only things on his hands were green grass stains from his
lawn mowers, “[t]he lack of any grease, oil or ‘green’ ” on S.M.’s clothing “further
demonstrates the insufficiency of the physical evidence against [a]ppellant.”
First, this misstates S.M.’s testimony, and the record reference Viruncruz provides
does not support his claim. S.M. did not refer to Viruncruz’s hands during his direct
examination. He testified Viruncruz was “working on his truck,” which had its “hood
open.” Later, on cross-examination, S.M. said: “[H]e was under the hood because he
was going to have me hold something while he did something too. It was like a fuel line
or oil or something like that. He had me hold a line from where the truck is because he
said it was leaking gas.” However, S.M. did not smell gasoline or see any on the ground.
On further cross-examination, defense counsel posed a compound question, “You
said there was oil and dirt and he wanted you to hold something,” to which S.M.
answered “Yeah.” Counsel then asked about Viruncruz placing his hands inside S.M.’s
shirt, and counsel said, “[H]e was doing that with those same oily, dirty hands that he was
under the truck working with, right?” S.M. answered, “Yes,” but the prosecutor objected
on the grounds that it misstated S.M.’s earlier testimony. It did. S.M. never mentioned
Viruncruz’s hands and instead said Viruncruz was working under the hood, not under the
truck, when S.M. had assisted him. The trial court asked defense counsel to clarify, and
counsel asked whether Viruncruz “was working with oily parts on the top of the truck,”
to which S.M. replied, “Yes.” Thus, S.M.’s testimony is at most ambivalent, but is not
inconsistent or demonstrably untruthful.
Similarly, Viruncruz also mischaracterizes S.M.’s testimony regarding the
passenger side door lock. S.M. did not testify the door locks were “automatic”; he simply
12.
said that when he tried to lift the lock button, it would go back down, and he was unable
to get the door open until he held the lock button up with one hand and opened the door
with the other. Viruncruz’s brother testified the truck did not have automatic door locks,
but there was no further evidence regarding the passenger side lock or the function of the
locking/unlocking button in 2018. Again, S.M. was neither inconsistent nor
demonstrably untruthful.
Viruncruz concludes his argument by observing that, “[u]ltimately, the entire case
hinged on [S.M.]’s word against [a]ppellant’s,” and that based on the evidence, we as a
reviewing court “should be left with a firm conviction that [a]ppellant should never have
been convicted.” We agree the case was a credibility contest, as many are, but not that
we must have a “firm conviction that [Viruncruz] should never have been convicted.”
Such a claim misconstrues both the relevant standard of review and our
fundamental role as an appellate court because it essentially asks us to reweigh the
evidence. Our review is limited to “whether substantial evidence supports the [jury’s]
decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v.
Mincey (1992) 2 Cal.4th 408, 432; see Jackson v. Virginia (1979) 443 U.S. 307, 318–319
[the relevant “inquiry does not require a court to ‘ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable doubt’ ”].)
Moreover, a conviction may be sustained on the uncorroborated testimony of a
single witness unless it is physically impossible or inherently improbable. (Evid. Code,4
§ 411; People v. Scott (1978) 21 Cal.3d 284, 296; see People v. Harlan (1990)
222 Cal.App.3d 439, 454 [no corroboration required for testimony of child victim of
sexual abuse]; cf. People v. Gammage (1992) 2 Cal.4th 693, 702 [“Although no
corroboration is required in most prosecutions, . . . trials of sex crimes, which often are a
credibility contest between the accused and the accuser, have ‘special features which
4 Undesignated statutory references are to the Evidence Code.
13.
make [a jury instruction] on lack of corroboration most proper.’ ”].) Viruncruz has not
shown that S.M.’s account was either impossible or inherently improbable.
Lastly, credibility questions are not for a reviewing court to resolve; they are for
the jury. The fact Viruncruz testified differently or that he now perceives issues with
S.M.’s credibility does not affect our conclusion because the jury, not the reviewing
court, assesses the credibility of the witnesses and makes the ultimate determination of
whom to believe. (People v. Dowl (2013) 57 Cal.4th 1079, 1092 [“To be sure, defendant
offered explanations for some of [the] circumstances, but the jurors did not have to
believe them.”]) We are not free to reform a jury’s verdicts simply because the testimony
could support a contrary finding. (People v. Jackson (2016) 1 Cal.5th 269, 345.)
“Whether a reasonable trier of fact could reach a different conclusion based upon the
same facts does not mean the verdict is not supported by sufficient evidence.” (People v.
Mora and Rangel (2018) 5 Cal.5th 442, 490.) To the contrary, the verdicts in this case
are supported by substantial evidence.5
II. “Character” Evidence:
Viruncruz next claims the trial court prejudicially erred by admitting evidence of
the sexually related web searches and links found on his phone, contending they
constituted inadmissible character evidence in violation of sections 1101, subdivision (a)
(hereafter section 1101(a)), and 352. We find no error.
5 Viruncruz tries to cast his insufficiency of the evidence claim in constitutional
terms, contending he was denied his “Fifth, Sixth and Fourteenth Amendment Rights.”
However, “[n]o separate constitutional discussion is required … when rejection of a
claim on the merits necessarily leads to rejection of any constitutional theory or ‘gloss’
raised for the first time [on appeal].” (People v. Scott (2011) 52 Cal.4th 452, 487, fn. 29;
see also People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.)
14.
A. Additional Background
Viruncruz filed a pretrial motion to “prohibit references to alleged pornographic
material and internet searches.” (Capitalization omitted.) He argued such evidence was
impermissible character evidence proscribed by section 1101(a).
The prosecutor did not file a written response, but she argued the web searches
and copies of four pornographic photos found at web-linked sites on Viruncruz’s phone
were relevant to show Viruncruz’s intent in touching S.M., apparently referring to
section 1101, subdivision (b) (hereafter section 1101(b)).
She also argued the evidence was admissible under section 1108 as “other act
evidence,” constituting “separate and distinct criminal act[s] that [were] uncharged and
[they] show[] the defendant’s again [sic] sexual intent and sexual nature towards males of
this particular age.”
Defense counsel responded that the evidence of searches from 2016 through 2017
was temporally too remote to be relevant to a 2018 charged offense. Further, he argued
the evidence would result in a “fundamentally unfair trial,” and that under section 352,
“[t]he probative value is highly overweighed by the prejudicial value.” He did not
distinguish between sections 1101(b) and 1108 and instead insisted “this is purely
[section] 352.”
The trial court decided an evidentiary hearing was needed before it could make the
necessary determinations. At that hearing, Detective Sanchez testified. He said he had
analyzed cell phone extraction reports approximately 50 to 60 times by the time of the
hearing and had analyzed about five such reports prior to reviewing the extraction report
in Viruncruz’s case. He reviewed the extraction report from Viruncruz’s cell phone and
found that from 2016 to 2017 the phone had been used to make numerous searches for
sexually explicit material regarding underage boys. Sanchez linked to the URLs 6 of
6 A “URL,” or “uniform resource locater,” is a unique identifier used to locate a
resource on the Internet. It is also sometimes simply referred to as a web address. (See
15.
some of the websites listed in the extraction report and found that they contained images
of young boys either nude or in underwear, including some that depicted explicit child
pornography. Sanchez identified four images of child pornography that he found by
following links found in the cell phone’s history. He accessed these images in 2018 but
could not say whether the URLs linked to the same images when they were accessed in
2016 and 2017.
Sanchez also identified several items in the extraction report that linked Viruncruz
to his phone in 2016 and 2017, including Google searches for the name Hilario,
photographs of Viruncruz and his family, and text messages that appeared to be from
Viruncruz. In addition, Sanchez identified the 2018 searches about child molestation law
and consequences made the day and time Viruncruz was detained in Pollack’s patrol car.
The trial court ruled there was sufficient circumstantial evidence connecting
Viruncruz to the phone in 2016 and 2017 to render the web search evidence relevant.
The court also ruled that while there were limits to what Sanchez could testify to in front
of the jury, he was sufficiently qualified to testify about the significance of items he
found in the extraction report.
The court further ruled the prosecutor was not permitted to introduce the four
photos Sanchez found when he linked to the 2016 and 2017 sites because they were too
prejudicial. However, Sanchez could testify as to what he saw when he visited those sites
in 2018.
The court also emphasized that the 2016-2017 searches and results were not to be
characterized as “child pornography.” Instead, they were to be described as
“inappropriate sexual contact between juveniles and male adults,” because referring to
them as child pornography would be unduly prejudicial.
“URL,” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-
webster.com/dictionary/URL.)
16.
B. Legal Background
“ ‘ “In reviewing the ruling of the trial court, we reiterate the well-established
principle that ‘the admissibility of [] evidence has two components: (1) whether the
challenged evidence satisfied the “relevancy” requirement set forth in [section 210], and
(2) if the evidence was relevant, whether the trial court abused its discretion under
[section 352] in finding that the probative value of the [evidence] was not substantially
outweighed by the probability that its admission would create a substantial danger of
undue prejudice.’ ” ’ ” 7 (People v. Parker (2022) 13 Cal.5th 1, 38 (Parker).)
In California, “[e]xcept as otherwise provided by statute, all relevant evidence is
admissible.” (§ 351, italics added.) Section 1101(a) provides: “[E]vidence of a person’s
character or a trait of his or her character (whether in the form of an opinion, evidence of
reputation, or evidence of specific instances of his or her conduct) is inadmissible when
offered to prove his or her conduct on a specified occasion.” Thus, “[a]s a general rule,
‘propensity evidence is not admissible to prove a defendant’s conduct on a specific
occasion.’ ” (People v. Dworak (2021) 11 Cal.5th 881, 899 (Dworak).)
However, section 1108, subdivision (a) “provides an exception to this rule: ‘In a
criminal action in which the defendant is accused of a sexual offense, evidence of the
defendant’s commission of another sexual offense or offenses is not made inadmissible
by [section 1101(a)], if the evidence is not inadmissible pursuant to [section 352].’ ”
(Dworak, supra, 11 Cal.5th at p. 899.) For purposes of section 1108, “sexual offense” is
defined by a list of qualifying offenses, one of which is possession of child pornography.
(§ 1108, subd. (d)(1)(A); see Pen. Code, § 311.2.)
7 In full, section 352 provides: “The court in its discretion may exclude evidence
if its probative value is substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.”
17.
Moreover, “evidence of a ‘prior sexual offense is indisputably relevant in a
prosecution for another sexual offense.’ ” (People v. Branch (2001) 91 Cal.App.4th 274,
282–283 (Branch).) “Indeed, the reason for excluding evidence of prior sexual offenses
in such cases is not because that evidence lacks probative value; rather, it is because ‘ “it
has too much.” ’ ” (Id. at p. 283.; see People v. Yovanov (1999) 69 Cal.App.4th 392, 405
[“evidence of uncharged sexual offenses is so uniquely probative in sex crimes
prosecutions it is presump[tively] admissible”].) “ ‘In short, if evidence satisfies [section
1108], and is not excluded under [section 352], admission of that evidence to prove
propensity is permitted.’ ” (Dworak, supra, 11 Cal.5th at p. 899.) We review a trial
court’s ruling under section 1108 for abuse of discretion. (People v. Daveggio and
Michaud (2018) 4 Cal.5th 790, 824.)
As for section 1101(b), even though “evidence of a character trait is not admissible
[under section 1101(a)] to demonstrate conduct on a particular occasion, [] such evidence
is admissible ‘when relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident, ...) other than his
or her disposition to commit such an act.’ ” (Parker, supra, 13 Cal.5th at pp. 38–39,
quoting § 1101(b).)
Therefore, evidence of other acts can provide circumstantial evidence from which
intent may be inferred and, “[a]s with other types of circumstantial evidence, its
admissibility depends upon three principal factors: (1) the materiality of the fact sought
to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove
the material fact; and (3) the existence of any rule or policy requiring the exclusion of
relevant evidence.” (People v. Thompson (1980) 27 Cal.3d 303, 315 (Thompson).)
Viruncruz’s lewd intent was a material fact in both charged offenses and had to be proved
by the prosecution. And because a “ ‘prior sexual offense is indisputably relevant in a
prosecution for another sexual offense,’ ” the other conduct had a tendency to prove
18.
Viruncruz’s intent.8 (Branch, supra, 91 Cal.App.4th at pp. 282–283.) Aside from his
section 352 arguments, Viruncruz does not posit any other rule or policy requiring the
exclusion of circumstantial evidence of intent.
As with section 1108, “ ‘[w]e review the trial court’s rulings on relevance and the
admission of evidence under [sections 352 and 1101] for abuse of discretion.’ ” (Parker,
supra, 13 Cal.5th at p. 39.) Such review “is highly deferential, and we ‘will not reverse a
court’s ruling on such matters unless it is shown ‘ “ ‘the trial court exercised its discretion
in an arbitrary, capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.’ ” ’ ” (Ibid.)
C. Analysis
i. Section 1108
As noted ante, possession of child pornography is a “sexual offense” within the
meaning of section 1108 because it is “a crime under the law . . . that involve[s] . . .
conduct proscribed by . . . subdivision (b), (c), or (d) of [Penal Code] [s]ection 311.2 ….”
(§ 1108, subd. (d)(1)(A).) In turn, subdivisions (b), (c), and (d) of Penal Code
section 311.2 proscribe various types of knowing possession and use of “matter
depict[ing] a person under the age of 18 years personally engaging in or personally
simulating sexual conduct ….” Sanchez testified at the evidentiary hearing that the
“matter” he found when he linked to at least four of the website addresses contained in
Viruncruz’s phone was child pornography, and the scores of other sexually explicit web
search terms similarly demonstrated what was being searched for.
Notably, an attempt to possess child pornography is also a qualifying sexual
offense under section 1108. (See § 1108, subd. (d)(1)(F); People v. Spicer (2015)
235 Cal.App.4th 1359, 1384 [section 1108 authorizes admission of “attempted sex
“When evidence tends to prove a material fact, it is said to be relevant evidence.”
8
(Thompson, supra, 27 Cal.3d at p. 316, fn. 15, citing § 210.)
19.
crimes”].) Thus, even though there was no child pornography found on Viruncruz’s
phone when it was forensically examined in 2018, there was evidence of at least four
2016-2017 web searches on URLs that in 2018 directly linked to child pornography.
Moreover, the web search history was littered with search terms unequivocally showing a
sexual interest in underage boys. In other words, although Viruncruz may not have been
in possession of child pornography when his phone was examined in 2018, he was in
possession of circumstantial evidence showing he had at the very least attempted to
obtain child pornography in 2016 through 2017. Section 1108 therefore applies.
Viruncruz argues the evidence was “irrelevant to any issues in this case and should
not have been admissible at trial.” To the contrary, as explained above, for purposes of
section 1108, “evidence of a ‘prior sexual offense is indisputably relevant in a
prosecution for another sexual offense.’ ” (Branch, supra, 91 Cal.App.4th at pp. 282–
283.) Viruncruz also argues the prejudicial effect of the cellphone evidence outweighed
its probative value because the cellphone evidence “offered no probative value.” This is
simply another way of stating it was irrelevant, which we have already determined not to
be the case.
For section 1108 review, our Supreme Court has “instructed that the trial
court’s determination should be guided by such factors as the ‘nature, relevance, and
possible remoteness’ of the evidence, ‘the degree of certainty of its commission and
the likelihood of confusing, misleading, or distracting the jurors from their main
inquiry, its similarity to the charged offense, its likely prejudicial impact on the
jurors, the burden on the defendant in defending against the uncharged offense, and
the availability of less prejudicial alternatives to its outright admission, such as
admitting some but not all of the defendant’s other sex offenses, or excluding
irrelevant though inflammatory details surrounding the offense.’ ” (Dworak, supra,
11 Cal.5th at p. 900.) Here, the record shows the trial court considered all these
factors in making its rulings. Indeed, the court refused to allow the prosecutor to
20.
introduce the photos Sanchez found and prohibited any reference to “child
pornography” to lessen any prejudicial effect.
The 2016-2017 web search evidence: (1) was not highly inflammatory in
comparison to the more serious charged crimes; (2) was not likely to distract or confuse
the jurors from their main inquiry or consume undue time because the evidence was
admitted in the form of an exhibit and Sanchez’s limited testimony; (3) did not impose an
undue burden on defendant in defending against the uncharged conduct because the
searches and URLs were physically on his phone and his only explanation was to deny
they were his and knowing how they got there; and (4) at only two years old at most, the
evidence was not so remote in time as to drastically reduce the likelihood of a propensity
to commit the charged offenses. (Compare People v. Cordova (2015) 62 Cal.4th 104,
133 [offenses 13 and 18 years later than the charged crime; “the time gap alone does not
compel exclusion of the evidence”].)
In reviewing a section 1108 ruling, we accord deference to a trial court’s
determination that the probative value of a particular piece of evidence outweighs any
danger of prejudice. (Dworak, supra, 11 Cal.5th at p. 899,) Viruncruz has failed to show
that the trial court here “ ‘ “ ‘exercised its discretion in an arbitrary, capricious or patently
absurd manner that resulted in a manifest miscarriage of justice.’ ” ’ ” (People v. Miles
(2020) 9 Cal.5th 513, 587-588.) The cell phone evidence was admissible under section
1108.
ii. Section 1101(b)
As noted ante, another statutory exception to section 1101(a)’s prohibition is
section 1101(b). Under that subdivision, evidence of other acts is admissible when
relevant to prove some fact such as motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident. (Parker, supra, 13 Cal.5th at
pp. 38-39.)
21.
Although the prosecutor did not refer to section 1101(b) by name, she implied it
was the grounds for admission because she insisted the cellphone evidence was relevant
to show Viruncruz’s intent in touching S.M. and to also establish one of the elements of
the aggravated kidnapping charge.
Viruncruz fails to discuss section 1101(b) or why it would or would not apply in
this instance. Instead, he tells us his case “closely resembles” People of the Territory of
Guam v. Shymanovitz (9th Cir. 1998) 157 F.3d 1154 (Shymanovitz) and relies on that
case as primary support for his claim.
Lower federal court decisions are not binding on California courts. (People v.
Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.) More importantly, Viruncruz does not
mention that Shymanovitz was overruled by an en banc court in United States v. Curtin
(9th Cir. 2007) 489 F.3d 935 (Curtin I) on the very same issue Viruncruz now cites it for.
And “on this issue, Shymanovitz is no longer valid precedent.” (United States v. Curtin
(9th Cir. 2009) 588 F.3d 993, 996-997 (Curtin II).) We are not obliged to follow lower
court federal opinions, and even less so with overruled ones. 9
People v. Memro (1995) 11 Cal.4th 786 (Memro) is more instructive here. In
Memro, the prosecutor introduced evidence from magazines and still photographs which
depicted stories, images, and drawings of male children ranging in age from pre-
pubescent to young adults. (Id. at p. 864.) Some were sexually explicit, and some were
not. (Id. at pp. 864–865.) Our Supreme Court concluded the material was admissible
under section 1101(b) because it “yielded evidence from which the jury could infer that
9 The case is also factually distinguishable. In Shymanovitz, the defendant was a
school guidance counselor who took middle-school students on camping trips and
sexually abused 11 boys. (Shymanovitz, supra, 157 F.3d at p. 1155.) The prosecution
introduced evidence that he possessed sexually explicit gay pornography depicting adult
males engaging in sexual conduct. (Id. at pp. 1158–1159.) The court found no relevant
connection between adult and child pornography, and concluded the prosecution was
merely pandering to homophobia. (Id. at p. 1158, 1161.)
22.
[the defendant] had a sexual attraction to young boys and intended to act on that
attraction.” (Id. at p. 865.) So too here. The only difference between Memro and the
current case is the nature of the media involved.
Viruncruz placed his intent at issue by pleading not guilty to the crimes charged ,
so it was a material fact in dispute. (People v. Balcom (1994) 7 Cal.4th 414, 422-423.)
Thus, the cellphone evidence was admissible to demonstrate Viruncruz’s lewd intent,
which was an element of both the aggravated kidnapping charge and the forcible lewd act
charge. As in Memro, supra, the jury could properly infer from the web search evidence
that Viruncruz was sexually attracted to boys of S.M.’s age and intended to act on that
attraction.
Furthermore, “[t]he least degree of similarity (between the uncharged act and the
charged offense) is required in order to prove intent. [Citation.] … In order to be
admissible to prove intent, the uncharged misconduct must be sufficiently similar to
support the inference that the defendant ‘ “ probably harbor[ed] the same intent in each
instance.” ’ ” (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) Here, both types of
misconduct show Viruncruz’s sexual attraction to boys of a certain age. That is
sufficient.
On the prejudice side of the scale, “[t]he prejudice which exclusion of evidence
under [section 352] is designed to avoid is not the prejudice or damage to a defense that
naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to
prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence,
the more it is “prejudicial.” The “prejudice” referred to in [section 352] applies to
evidence which uniquely tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues. In applying [section 352],
“prejudicial” is not synonymous with “damaging.” ’ ” (People v. Karis (1988) 46 Cal.3d
612, 638.) Here, the cellphone evidence was highly probative of Viruncruz’s lewd intent
23.
and focus on pre-pubescent teen boys, and as tailored by the trial court it was not
substantially outweighed by the minimal prejudicial effect.
As with section 1108, our review of section 1101(b) rulings is highly
deferential, and we will not reverse unless it is shown the trial court ruled in an
arbitrary, capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice. (Parker, supra, 13 Cal.5th at p. 39.) The trial court here held
an extensive evidentiary hearing and afterwards carefully considered how best to
strike the balance. It excluded some of the proffered evidence and “sanitized” other
parts. Viruncruz has not shown the court abused its discretion in doing so. The
cellphone evidence was therefore also admissible under section 1101(b).
Lastly, Viruncruz contends the admission of the cellphone evidence violated
his federal constitutional right to due process and a fair trial. We are not persuaded.
“[T]he admission of evidence, even if erroneous under state law, results in a
due process violation only if it makes the trial fundamentally unfair.” (People v.
Partida (2005) 37 Cal.4th 428, 439.) But because we have concluded that the
cellphone evidence was properly admitted under two different sections of the
Evidence Code, his constitutional claim fails. (See People v. Valdez (2012)
55 Cal.4th 82, 134.) When a defendant raises “only a new constitutional ‘gloss’ on
claims [raised] below … ‘[n]o separate constitutional discussion is required, or
provided, when rejection of a claim on the merits necessarily leads to rejection of
[the] constitutional theory ….’ ” (People v. Bryant, Smith and Wheeler (2014)
60 Cal.4th 335, 364.)
Furthermore, the trial court’s ruling regarding the admissibility of evidence of
defendant’s prior interest in child pornography of a kind and type akin to S.M.’s age
and gender, which depicted conduct similar to the offenses with which he was
charged, did not render his trial fundamentally unfair. There were legitimate
24.
permissible inferences that could be drawn from the cellphone evidence under both
sections 1108 and 1101(b) and its introduction did not deny Viruncruz due process.
III. The Prosecutor’s Cross-Examination
Viruncruz next claims the prosecutor committed prejudicial misconduct when she
asked him on cross-examination about the internet searches for criminal defense
attorneys he made while he was in the back of Pollack’s patrol car. He argues “a
prosecutor’s comments on a defendant’s exercise of right to counsel is prohibited,
especially when the prosecution uses such commentary to imply a defendant’s guilt or
innocence[.]” That is true, but it is not what happened in this case.
The prosecutor brought a pretrial motion to admit the web searches made while
Viruncruz was in the patrol car.10 She clarified to the court: “The People are not seeking
to get into any of the searches for an attorney. Simply the searches that include things
like Penal Code Section 288, how long can you go to jail for child abuse. So any mention
of an attorney or trying to hire a specific attorney, the People are not seeking to admit
….” The court ruled the prosecutor could not introduce any of the attorney searches, but
the other searches were admissible as relevant evidence –“not unduly prejudicial”– of
consciousness of guilt.
During Sanchez’s trial testimony, he told the jury that several web searches were
made on Viruncruz’s cell phone during the time he was detained in Pollack’s patrol car,
including: “Steps to take if you are accused of child molestation;” “Do child molesters
last long in jail;” and “Penal Code Section 288.”
Outside the jury’s presence, the trial court noted for the record that it had held a
sidebar conference with the attorneys regarding Sanchez’s testimony. The court said it
became concerned when the prosecutor began to question Sanchez about web searches
10 She argued they were admissible hearsay as party opponent admissions
(§ 1220), and not as character evidence. Their proffered relevance was to show
Viruncruz’s consciousness of guilt.
25.
made in the patrol car because it had previously excluded reference to the searches
Viruncruz had made for an attorney. The court also observed that although the
prosecutor had not offered any evidence of the attorney searches, the defense was
permitted to present evidence of those searches:
“The Court: Those [attorney searches] have been excluded; however, based on the
Defense argument as to the reasonableness of what he was doing at the time, the
Defense at some point may want to get into the fact he searched for an attorney.
They can do it through [Sanchez] or through any other evidence they might have
to support that conclusion. I just wanted to make sure we didn’t have a mix up
here.”
Defense counsel did not ask Sanchez about the attorney searches, but later, during
Viruncruz’s direct examination, defense counsel first brought up the subject:11
“[Defense Counsel:] Okay. Did you — did you do some searches for attorneys at
all?
“[Viruncruz:] Yes, I did look for an attorney.
“[Defense Counsel:] There was a mention that there was one search for a PC 288,
do you know what that is?
“[Viruncruz:] I don't know what that is.”
Only then did the prosecutor cross-examine Viruncruz about his cell phone searches:
“[Prosecutor:] [Y]ou looked up how much time a sex offender would get in jail,
correct?
“[Viruncruz:] No, I looked up attorneys for crimes. How do you say it for sexual
crimes?
“[Prosecutor:] You had your cell phone with you the whole time you were in the
back of [Pollack’s] car, correct?
“[Viruncruz:] Yes.
11 Viruncruz does not mention this in his briefs.
26.
“[Prosecutor:] And it’s your testimony today that you didn’t look up anything to
do with child molestation other than attorneys?
“[Viruncruz:] I looked up attorneys. And from there, other pages c[a]me up.
“[Prosecutor:] And you co[nn]ected on those other pages, didn’t you?
“[Viruncruz:] The one that you said about child molestation, I don’t know, but I
did look up other pages of sex crimes.”
“[Prosecutor:] Sir, if you can take a look [at an exhibit displaying the web
searches]. Child molestation, how long for jail? How do you explain that search?
“[Viruncruz:] “I can’t give you that explanation, because – I can’t give you an
explanation for that, because that’s something that I can’t tell you, because I don’t
remember having co[nn]ected on that.”
Viruncruz continued to deny looking up how much time a sex offender would get
in jail or anything to do with child molestation, saying “I only did a search for attorneys
for sexual crimes.” Later in her cross examination, the prosecutor again asked Viruncruz
about the specific searches he made for attorneys:
“[Prosecutor]: [T]he second you saw [S.M. get out of Sorrow’s car], you knew
what this case was about, didn’t you?
“[Viruncruz:] Because I recognized the young man when he got out of the patrol
car.
“[Prosecutor:] And your searches that you conducted on your cell phone at that
time weren’t for robbery, they were for child molestation, correct?
“[Viruncruz:] Because I saw on social media that it said sexual assault.
“[Prosecutor:] So your reaction was to search your phone for child molestation,
because you knew what you did two days before, isn’t that true?
“[Viruncruz:] I looked up attorneys for sex crimes, but I never looked up sexual
molestation.”
The prosecutor then showed Viruncruz the exhibit depicting the web searches:
27.
“[Prosecutor:] If you look [at the exhibit], you see Bakersfield, California
lawyers, is that a search that you conducted on September 3rd, 2018?
“[Viruncruz:] Yes, I looked for attorneys.
“[Prosecutor:] Can you turn to the next page, please. On that page, do you find
further searches for attorneys?
“[Viruncruz:] Yes, it says here criminal defense attorneys.
“[Prosecutor:] And those are searches that you made on September 3rd, 2018?
“[Viruncruz:] Related to attorneys, yes, yes.”
On redirect, Viruncruz explained that when he was trying to search for attorneys,
those other “things” just “pop[ped] up.” But they were “things that [he] did not make a
specific request for.”
Defense counsel made no objections to the questions the prosecutor asked on
cross-examination regarding the web searches Viruncruz said were his attempts to search
for an attorney. But we need not consider whether the issue is thereby forfeited on appeal
because the prosecutor committed no misconduct.
The trial court’s pretrial ruling precluded the prosecutor from introducing the
attorney searches in her case, which she did not do. It was defense counsel who
introduced the evidence that Viruncruz searched for an attorney as an explanation for
why Viruncruz made the other – rather incriminating – searches he made that day.
A defendant who chooses to testify is not immune from cross-examination, and
the scope of permissible cross-examination is “very wide.” (People v. Harris (1981)
28 Cal.3d 935, 953; see People v. Farnam (2002) 28 Cal.4th 107, 187 (Farnam) [trial
court has “wide discretion in controlling the scope of relevant cross-examination”];
People v. Lena (2017) 8 Cal.App.5th 1145, 1149 [if the defendant testifies, the prosecutor
may cross-examine him to test his credibility or otherwise refute his statements].) Thus,
after the defendant testifies, the prosecutor “ ‘may fully amplify his testimony by
28.
inquiring into the facts and circumstances surrounding his assertions, or by introducing
evidence through cross-examination which explains or refutes his statements or the
inferences which may necessarily be drawn from them.’ ” (People v. Chatman (2006)
38 Cal.4th 344, 382.) Consequently, once that proverbial door was opened by the
defense, the prosecutor was entitled to cross-examine Viruncruz about his explanation of
how his searches for attorneys just happened to innocently “pop-up” some rather odd new
search terms. (Cf. People v. Coffman and Marlow (2004) 34 Cal.4th 1, 72 [defendant’s
testimony on direct examination “opened the door” to cross-examination on matters that
would normally adversely affect defendant’s right against self-incrimination]; cf.
Jenkins v. Anderson (1980) 447 U.S. 231, 236, fn. 3 [“[A] defendant who speaks in his
own defense cannot avoid testifying fully. [¶] ‘[A] defendant who takes the stand in his
own behalf cannot then claim the privilege against cross-examination on matters
reasonably related to the subject matter of his direct examination.’ ”].) The federal circuit
court cases Viruncruz cites in support of his contention are all factually distinguishable. 12
12 In Hill v. Turpin (11th Cir. 1998) 135 F.3d 1411, a Georgia death penalty case,
the prosecution repeatedly “encouraged the jury to infer the falsity of [the defendant’s]
exculpatory story from his exercise of Miranda rights at the time of his arrest ….” (Id. at
p. 1418.) In Bruno v. Rushen (9th Cir. 1983) 721 F.2d 1193, the prosecutor’s closing
argument was “a vicious attack on the accused’s claims of innocence by openly hinting to
the jury that the fact that the accused hired counsel was in some way probative of the
defendant’s guilt.” (Id. at p. 1194.) Moreover, “the obvious import of the prosecutor’s
comments was that all defense counsel in criminal cases are retained solely to lie and
distort the facts and camouflage the truth in an abominable attempt to confuse the jury as
to their client’s involvement with the alleged crimes.” (Ibid.) So too with Viruncruz’s
other cited cases: United States v. McDonald (5th Cir. 1980) 620 F.2d 559, 564 [“[T]he
real purpose of [prosecutor’s] reference to [an] attorney’s presence [at the execution of a
search warrant] was to cause the jury to infer that [the defendant] was guilty,” and he
“would not have gotten a lawyer unless he was guilty”]; Zemina v. Solem (8th Cir. 1978)
573 F.2d 1027, 1028 [prosecutor’s closing argument that the defendant’s phone call to his
attorney after his arrest indicated guilt]; United States ex rel. Macon v. Yeager (3d Cir.
1973) 476 F.2d 613, 617 [prosecutor asked defendant on cross examination why he
needed to call his lawyer the day after the murder when he had not yet been arrested];
United States v. Daoud (1st Cir. 1984) 741 F.2d 478, 480 [Doyle error applies to
29.
Here the prosecutor did nothing remotely like the prosecutors in Viruncruz’s cited
cases. Instead, she merely attacked Viruncruz’s credibility with the absurdity of his
claims that all he did was use his phone to search the web for attorneys and he had no
idea how those other things just “popped up.” Moreover, also unlike the prosecutors in
the cases cited or relied upon by Viruncruz, here the prosecutor did not make any kind of
suggestion or imply that the jury should make anything of the fact Viruncruz claimed he
was searching for attorneys when these other things appeared. Rather, she merely argued
that Viruncruz’s explanation was simply unbelievable.
Finally, the prosecutor’s cross-examination was harmless under any standard.
Since Viruncruz had already introduced evidence that he had searched for attorneys, the
prosecutor’s questions about that evidence did not tell the jurors anything they did not
already know. There was no improper cross-examination.
IV. The Prosecutor’s Closing Arguments
Viruncruz next contends the prosecutor committed reversible misconduct in her
closing arguments and, if the claim is forfeited, because defense counsel failed to object,
he was constitutionally ineffective. We are not persuaded.
A. Additional Factual Background
Viruncruz focuses on four excerpts from the prosecutor’s closing arguments which
he insists constitute prosecutorial misconduct. The first, from her opening remarks:
“[The Prosecutor:] Ladies and gentlemen, what does child molestation look like?
In this case, it looks like every parent’s worst nightmare. You get a phone call that
tells you that your child has been picked up by a stranger driven to an area where
he doesn’t know anyone. He doesn’t recognize any area, anything in the area, and
that individual who did that to him also sexually assaulted him.
invocation of right to an attorney]; United States v. Pavelko (3rd Cir. 1993) 992 F.2d 32,
34 [prosecution offered a financial affidavit the defendant filled out in order to obtain an
attorney to use against him at trial].
30.
“Your child had to fight to get out of that vehicle, sprint to another stranger’s
home and report to them in order to find a safe place. Every parent’s worst
nightmare is what this situation of child molestation looks like.”
The second, from her rebuttal argument:
“Ladies and gentlemen, I told you that this situation of child molestation is every
parent[’]s worst nightmare. [S.M] met a monster on the first [of September,
2018].”
And the third, also from her rebuttal:
“[Viruncruz’s] attempt up there on the [witness] stand was the last [ditch] effort to
try and fool you into thinking that he is not the monster that he is. He preyed on
an innocent victim, a stranger that he knew nothing about and he took advantage
of the situation and thankfully [S.M.] had the guts and the nerve to fight back and
to run away and tell[] them the truth.”
Fourth, Viruncruz alleges it was misconduct for the prosecutor to characterize him
as “a sick, evil man,” who made “disgusting” web searches for child pornography.
As noted, defense counsel made no objection to any of these remarks.
B. Analysis
i. Forfeiture
“ ‘Improper comments by a prosecutor require reversal of a resulting conviction
when those comments so infect a trial with unfairness that they create a denial of due
process. [Citations.] Conduct by a prosecutor that does not reach that level nevertheless
constitutes misconduct under state law, but only if it involves the use of deceptive or
reprehensible methods to persuade the court or jury.’ ” (People v. Winbush (2017)
2 Cal.5th 402, 480 (Winbush).) “For a prosecutor’s remarks to constitute misconduct, it
must appear reasonably likely in the context of the whole argument and instructions that
‘ “the jury understood or applied the complained-of comments in an improper or
erroneous manner.” ’ ” (Ibid.) “ ‘In conducting [our] inquiry, we “do not lightly infer”
that the jury drew the most damaging rather than the least damaging meaning from the
prosecutor’s statements.’ ” (Covarrubias, supra, 1 Cal.5th at p. 894.)
31.
Nevertheless, “ ‘[a]s a general rule a defendant may not complain on appeal of
prosecutorial misconduct unless in a timely fashion—and on the same ground—the
defendant made an assignment of misconduct and requested that the jury be admonished
to disregard the impropriety.’ ” (Winbush, supra, 2 Cal.5th at p. 481.) The People
contend, and we agree, that Viruncruz forfeited his claim of prosecutorial misconduct by
failing to make timely objections. There is nothing in the record to indicate that an
objection would have been futile or that the prosecutor’s argument was “so extreme or
pervasive that a prompt objection and admonition would not have cured the harm.”
(People v. Centeno (2014) 60 Cal.4th 659, 674.) The claim is therefore forfeited.
ii. Ineffective Assistance of Counsel
Turning to Viruncruz’s alternative “argument” that defense counsel’s failure to
object constituted ineffective assistance of counsel, we note at the outset that Viruncruz
fails to discuss or develop any legal arguments or authorities in support of this claim; he
simply summarily asserts it. His entire briefing is focused on the prosecutor’s remarks,
and he devotes nothing to how or why trial counsel was ineffective for failing to object,
the standard of review, or how we as a reviewing court should even address his claim.
“ ‘[E]very brief should contain a legal argument with citation of authorities on the
points made.’ ” (People v. Stanley (1999) 10 Cal.4th 764, 793.) “If a party’s briefs do
not provide legal argument and citation to authority on each point raised, ‘ “the court may
treat it as waived, and pass it without consideration.” ’ ” (People v. Bryant, Smith and
Wheeler, supra, 60 Cal.4th at pp. 363–364; see Cal. Rules of Court, rule 8.883(a)(1)(A)
[briefs must support “each point by argument and, if possible, by citation of authority”].)
We thus deem his “alternative argument” waived. But even were we to address its
merits, the claim still fails.
a. Legal Background
“An ineffective assistance claim has two components: A [defendant] must show
that counsel’s performance was deficient, and that the deficiency prejudiced the defense.”
32.
(Wiggins v. Smith (2003) 539 U.S. 510, 521 (Wiggins), italics added; see Strickland v.
Washington (1984) 466 U.S. 668, 687 (Strickland).) Both components “are mixed
questions of law and fact subject to our independent review.” (In re Gay (2020) 8 Cal.5th
1059, 1073 (Gay).)
“On direct appeal, a finding of deficient performance is warranted where ‘(1) the
record affirmatively discloses counsel had no rational tactical purpose for the challenged
act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there
simply could be no satisfactory explanation.’ [Citation.] ‘[W]here counsel’s trial tactics
or strategic reasons for challenged decisions do not appear on the record, we will not
find ineffective assistance of counsel on appeal unless there could be no conceivable
reason for counsel’s acts or omissions.’ ” (People v. Johnsen (2021) 10 Cal.5th 1116,
1165 (Johnsen), italics added; see People v. Cunningham (2001) 25 Cal.4th 926, 1003
[“deficient performance [must be] based upon the four corners of the record”].)
“When applying this standard, we ask whether any reasonably competent counsel
would have done as counsel did. … Judicial review of counsel’s performance is
deferential; to establish deficient performance, the defendant ‘must overcome the
presumption that, under the circumstances, the challenged action “might be considered
sound trial strategy.” ’ ” (Gay, supra, 8 Cal.5th at p. 1073; Harrington v. Richter (2011)
562 U.S. 86, 105 [“standard for judging counsel’s representation is a most deferential
one”].)
Because deciding whether to object is inherently a tactical decision, the failure to
do so will rarely establish ineffective assistance of counsel. (Johnsen, supra, 11 Cal.5th
at p. 1165; People v. Hillhouse (2002) 27 Cal.4th 469, 502.) Similarly, because a
defendant “must demonstrate that counsel’s representation ‘fell below an objective
standard of reasonableness,’ ” as measured by “ ‘prevailing professional norms,’ ”
(Wiggins, supra, 539 U.S. at p. 521, italics added), “[r]arely is ineffective assistance of
counsel established on appeal since the record usually sheds no light on counsel’s reasons
33.
for action or inaction.” (People v. Woodruff (2018) 5 Cal.5th 697, 736.) As a result, such
considerations are normally more properly brought on habeas corpus. (See People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266–267.)
As to prejudice, “[i]t is not enough for the defendant to show that the errors had
some conceivable effect on the outcome of the proceeding.” (Strickland, supra, 466 U.S.
at p. 693.) Rather, “[t]he defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” (Id. at p. 694.) “For a prosecutor’s remarks to constitute misconduct, it
must appear reasonably likely in the context of the whole argument and instructions that
‘ “the jury understood or applied the complained-of comments in an improper or
erroneous manner.” ’ ” (Winbush, supra, 2 Cal.5th at p. 480, italics added.)
b. Epithets
Viruncruz first complains the prosecutor committed misconduct when she called
him a “sick, evil man,” and a “monster” who made “disgusting” internet searches. The
apparent implication is that it is reasonably likely in the context of both counsels’ entire
arguments, and the trial court’s instructions, that the jury was so affected by these
epithets that it was reasonably likely to have made a difference to the outcome.
Prosecutors are given wide latitude during argument. (People v. Hill (1998)
17 Cal.4th 800, 819 (Hill).) Summations may be vigorous; a prosecutor is “ ‘ “not
limited to ‘Chesterfieldian politeness’ ” [citation] and [s]he may “use appropriate
epithets.” ’ ” (Ibid.) The mild and fleeting language the prosecutor used here does not
rise to the level of misconduct. In People v. Zambrano (2007) 41 Cal.4th 1082, 1172,
disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22, the
prosecutor repeatedly called the defendant “especially evil,” a liar, and a “dangerous
sociopath” in closing argument. The court found no misconduct, noting that several more
derogatory epithets have been found within the range of permissible argument. (Ibid.;
34.
see, e.g., People v. Friend (2009) 47 Cal.4th 1, 84 (Friend) [defendant called an
“insidious little bastard”]; People v. Thomas (1992) 2 Cal.4th 489, 537 (Thomas)
[defendant called a “perverted murderous cancer” and a “walking depraved cancer”];
People v. Sully (1991) 53 Cal.3d 1195, 1249 [defendant was a “human monster” and
“mutation”].) Similarly, in Farnam, supra, 28 Cal.4th at p. 168, the prosecutor’s opening
statement described defendant as “monstrous,” “cold-blooded,” and said that the evidence
would be “horrifying” and “more horrifying than your worst nightmare.” The court
concluded this was fair comment on what the prosecutor expected the evidence would
show. (Ibid.) Here it was similarly fair comment on what the prosecutor believed the
evidence had shown.
Moreover, the jury was instructed that attorneys’ remarks are not evidence but
merely reflect counsel comments on the evidence. (CALCRIM No. 222.) We presume
the jury followed the court’s instructions. (People v. Martinez (2010) 47 Cal.4th 911,
957.) Indeed, that presumption is a crucial underpinning of our constitutional system of
trial by jury. (People v. Yeoman (2003) 31 Cal.4th 93, 139.) Viruncruz has provided
nothing to rebut that presumption and there is nothing in the record to indicate the jury
failed to heed the court’s admonishment in this case.
Considering the instructions and the evidence in this case, it is not reasonably
probable that had defense counsel objected, there would have been a different result. As
such, it was not unreasonable for defense counsel not to object because the meritless
objection would have been properly overruled. (See People v. Ochoa (1998) 19 Cal.4th
353, 463; People v. Anderson (2001) 25 Cal.4th 543, 587 [“Counsel is not required to
proffer futile objections.”].) The prosecutor’s descriptions of Viruncruz did not
improperly inflame the jury. (See Friend, supra, 47 Cal.4th at p. 84.)
c. “Every parent’s worst nightmare”
Viruncruz next claims the prosecutor committed misconduct when she referred to
the evidence of what Viruncruz did to S.M. as “every parent’s worst nightmare,” thereby
35.
improperly urging the jurors to place themselves in the position of S.M.’s parents. Again,
the apparent implication is that it is reasonably likely in the context of the whole
argument and instructions that the jury was so affected by this argument that it probably
made a difference to the outcome.
Except in the penalty phase of a capital trial, it is inappropriate for a prosecutor to
appeal to sympathy by inviting the jury to view the case through the victim’s eyes
because an appeal for sympathy for the victim is out of place during an objective
determination of guilt. (See People v. Leonard (2007) 40 Cal.4th 1370, 1406–1407;
People v. Fields (1983) 35 Cal.3d 329, 361 [Prosecutor argued, “Now, think of yourself
as” the murder victim, and then proceeded to describe the crime from the perspective of
each juror in the role of the victim]; People v. Vance (2010) 188 Cal.App.4th 1182, 1192,
1198 (Vance) [“Walk in [the victim’s] shoes,” and “relive … what [the victim]
experienced;” labeling such improper arguments as “Golden Rule” arguments].)
Similarly, asking the jurors to put themselves in the position of a crime victim’s
parent is also improper. Thus, in People v. Pensinger (1991) 52 Cal.3d 1210(Pensinger), the court found it improper for the prosecutor to say, “Suppose instead of
being [murder victim’s mother]’s kid this had happened to one of your children.” (Id. at
p. 1250, italics added; accord, Vance, supra, 188 Cal.App.4th at p. 1193.)
The People respond by drawing a distinction between “put yourself in the parents’
shoes” and “every parent’s worst nightmare,” arguing the latter did not invite the jurors to
imagine how S.M. or his parents actually felt or suffered, and therefore was not an appeal
for sympathy. Although it is a close call, we agree.
Instead of asking jurors to consider how they would feel, the prosecutor was
describing the nature of the crimes themselves, i.e., the evidence. Thus, she rhetorically
asked, “[W]hat does child molestation look like? In this case, it looks like every parent’s
worst nightmare.” (Italics added.) She then described what the evidence showed and
concluded, “[e]very parent’s worst nightmare is what this situation of child molestation
36.
looks like.” (Italics added.) Finally, in her rebuttal argument, she referred back to what
she said earlier: “I told you that this situation of child molestation is every parent[’]s
worst nightmare.” This comment can be fairly construed as summation and comment on
the facts of the case, i.e., of the situation.
We are mindful that for a prosecutor’s remarks to constitute misconduct, it must
be reasonably likely the jury understood or applied the complained-of comments in an
improper or erroneous manner. And “ ‘[i]n conducting [our] inquiry, we “do not lightly
infer” that the jury drew the most damaging rather than the least damaging meaning from
the prosecutor’s statements.’ ” (Covarrubias, supra 1 Cal.5th at p. 894.)
In Farnam, supra, 28 Cal.4th at p. 168, the prosecutor’s opening statement used a
description of the defendant as “more horrifying than your worst nightmare.” (Italics
added.) The court found this was fair comment on what the prosecutor expected the
evidence would show. (Ibid.) Similarly, here the prosecutor was fairly commenting on
what the evidence did show. Had she phrased her remarks as “your worst nightmare,” it
is unlikely it would have been even marginally questionable.
In any event, because we are reviewing prejudice in the context of an ineffective
assistance of counsel claim, we need not draw a fine line between marginally improper
Golden Rule comments and legitimate comments on the evidence because we find no
likelihood it would have mattered had defense counsel objected to the prosecutor’s
relatively isolated use of the phrase in her otherwise extensive closing arguments. 13
In Pensinger, supra, the prosecutor clearly erred by unabashedly asking the jurors
to put themselves in the position of the crime victim’s mother. Even so, the Pensinger
court found no prejudice: “We see no reasonable probability that a result more favorable
to defendant would have been reached if the court had admonished the jury. [Citation.]
The prosecutor’s comment was an isolated one and it was not repeated. The misconduct
13 The prosecutor’s closing arguments comprise 60 pages of reporter’s transcript.
37.
did not add cumulative impact to other errors in a crucial area of the case.” (Pensinger,
supra, 52 Cal.3d at p. 1250.) A similar result ensues here. Viruncruz has not shown the
prosecutor’s scant remarks “ ‘so infected the trial with unfairness as to make the resulting
conviction a denial of due process.’ ” (Darden v. Wainwright (1986) 477 U.S. 168, 181.)
Furthermore, S.M.’s parents testified in this case. The jury saw just what it was
like to be S.M.’s parents, not to imagine it, and it is clear from their testimony that it was
less than pleasant.14 Both parents recounted their continuing distress by contrasting how
their son’s behavior had radically changed from before the incident to after, and thereby
lending circumstantial support to S.M.’s credibility. Commenting on the testifying
parents’ personal nightmares was not an improper appeal to sympathy.
And again, the trial court admonished the jury that the attorneys’ statements did
not constitute evidence. (See CALCRIM No. 222.) There is nothing in the record to
indicate the jury failed to heed the court’s admonishment in this case.
In sum, there is no merit to Viruncruz’s conclusory claim that his trial counsel was
constitutionally ineffective for not objecting. Defense counsel’s trial strategy here was
three-fold: (1) Viruncruz did not do what S.M. accused him of; (2) Viruncruz was
actually an innocent victim of a robbery who just did not know how all those child
pornography links got on his phone; and (3) S.M. was someone who took money from a
naïve innocent to help support his parents in their hard times. While objecting and
“requesting an admonition was one tactical option, counsel could have also decided that
objecting would focus the jury’s attention” on the evidence “in ways that would not be
helpful to the defense.” (People v. Harris (2008) 43 Cal.4th 1269, 1290.) That question
is better addressed on habeas corpus.
14 For example, the court paused the proceedings twice during Father’s testimony
to allow him to compose himself.
38.
As observed ante, “[a] mere failure to object to argument seldom establishes
counsel’s incompetence[.]” (Thomas, supra, 2 Cal.4th at p. 531.) And “this case is no
exception.” (Ibid.) In light of the trial court’s cautionary instructions and Viruncruz’s
ability to fully challenge S.M. on cross-examination, we discern neither prejudice nor a
denial of his right to a fair trial based solely on the questionable wording of a small
portion of the prosecutor’s final closing argument. In other words, it is not reasonably
probable the result would have been different had trial counsel objected to the
prosecutor’s remarks. Viruncruz has failed to demonstrate ineffective assistance of
counsel. The claim is not only waived, but it also fails on the merits.
V. “Dewberry15 Error:” The Lesser Included Offense Jury Instructions
Viruncruz next claims the trial court prejudicially erred by failing to give
“adequate” jury instructions regarding how the jury should consider lesser included
offenses. Again, we disagree.
A. Additional Background
The trial court instructed the jury with CALCRIM No. 1203 for the aggravated
kidnapping offense. In addition, jurors were instructed on the lesser included offenses of
simple kidnapping (CALCRIM No. 1215), false imprisonment by violence (CALCRIM
No. 1240), and simple false imprisonment (CALCRIM No. 1242).
The court also instructed the jury on how to consider lesser included offenses with
CALCRIM No. 3519:
“THE COURT: If all of you find that the defendant is not guilty of a greater
charged 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 of both a greater and lesser crime for the same
conduct. [¶] Now I will explain to you the crimes affected by this instruction
including lesser crimes of the lesser crimes:
15 People v. Dewberry (1959) 51 Cal.2d 548 (Dewberry).
39.
“1. Kidnapping (P.C. §207(A)) is a lesser crime to kidnapping for the purpose
of committing a lewd or lascivious act … ;
“2. False Imprisonment by violence or menace (P.C. §237(a)) is a lesser crime
to the lesser crime of kidnapping … ;
“3. False imprisonment (P.C. §237(a)) is [a] lesser crime to the lesser crime of
false imprisonment by violence or menace … ; [¶] … [¶] … [¶] … [¶]
“1. If all of you agree the People have proved that the defendant is guilty of the
greater crime, complete and sign the verdict form for guilty of that crime. Do not
complete or sign any verdict form for the lesser crime.
“2. If all of you cannot agree whether the People have proved that the
defendant is guilty of the greater crime, inform me of your disagreement and do
not complete or sign any verdict form for that crime or the lesser crime.
“3. If all of you agree the People have not proved that the defendant is guilty of
the greater crime and also agree the People have proved that he is guilty of the
lesser crime, complete and sign the verdict form for not guilty of the greater crime
and the verdict form for guilty of the lesser crime. Do not complete or sign any
other verdict forms for those charges.
“4. If all of you agree the People have not proved that the defendant is guilty of
the greater or lesser crime, complete and sign the verdict form for not guilty of the
greater crime and the verdict form for not guilty of the lesser crime.
“5. If all of you agree the People have not proved that the defendant is guilty of
the greater crime, but all of you cannot agree on a verdict for the lesser crime,
complete and sign the verdict form for not guilty of the greater crime and inform
me about your disagreement on the lesser crime.
“Whenever I tell you the People must prove something, I mean they must prove it
beyond a reasonable doubt.” (Italics added.)
Viruncruz does not contest the correctness or applicability of the lesser offense
instruction as given; rather, he questions its sufficiency. He insists the court had a sua
sponte duty to give an additional instruction, which he does not identify or provide,
40.
specifically telling the jury to apply the reasonable doubt standard when assessing lesser
versus greater offenses, citing Dewberry, supra, 51 Cal.2d 548 in support.16
B. Standard of Review and Legal Background
We review claims of instructional error de novo. (People v. Mitchell (2019)
7 Cal.5th 561, 579.) “In criminal cases, even in the absence of a request, a trial court
must instruct on general principles of law relevant to the issues raised by the evidence
and necessary for the jury’s understanding of the case.” (People v. Martinez (2010)
47 Cal.4th 911, 953.) But “instructions are not considered in isolation. Whether
instructions are correct and adequate is determined by consideration of the entire charge
to the jury.” (People v. Holt (1997) 15 Ca1.4th 619, 677.) And even “[i]f the charge as a
whole is ambiguous, the question is whether there is a ‘ “reasonable likelihood that the
jury has applied the challenged instruction in a way” that violates the Constitution.’ ”
(Middleton v. McNeil (2004) 541 U.S. 433, 437.) “Instructions should be interpreted, if
possible, so as to support the judgment rather than defeat it if they are reasonably
susceptible to such interpretation.” (People v. Laskiewicz (1986) 176 Ca1.App.3d 1254,
1258.)
Dewberry instructional error requires reversal only if it is reasonably probable that
in the absence of the error, the result would have been more favorable to the defendant.
(Dewberry, supra, 51 Cal.2d at p. 558; People v. Crone (1997) 54 Cal.App.4th 71, 78
(Crone); People v. Watson (1956) 46 Cal.2d 818, 836.)
C. Analysis
In Dewberry, supra, 51 Cal.2d at page 554, the defendant requested the trial court
to instruct the jury that if it had a reasonable doubt whether defendant was guilty of
16
This argument could be summarily rejected because it blurs the distinction
between an instruction regarding a general principle of law, which must be given sua
sponte, and a pinpoint instruction that must be requested by the defense. Here, of course,
there was no such request. Even so, to the extent Viruncruz argues the trial court erred in
a way that affected his substantial rights, we treat this claim as not forfeited and will
consider it. (People v. Ramirez (2021) 10 Cal.5th 983, 1000; see Pen. Code, § 1259.)
41.
murder or manslaughter, it could convict him only of manslaughter. Our Supreme Court
reversed the defendant’s conviction because the trial court had rejected the request, even
though it had given a similar instruction with regard to the degrees of murder. (Id. at
p. 557.) The court explained 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.” (Id. at p. 555.)
Many years later, our Supreme Court reiterated Dewberry’s holding, and stated
“that a criminal defendant is entitled to the benefit of a jury’s reasonable doubt with
respect to all crimes with lesser degrees or related or included offenses.” (People v.
Musselwhite (1998) 17 Cal.4th 1216, 1262 (Musselwhite), original italics.) The court
held that a jury is adequately instructed as to the Dewberry principle if the trial court
gives the “several generally applicable instructions governing [the] use of the reasonable
doubt standard,” which will have the “effect” of requiring the jury to give the defendant
the benefit of any reasonable doubt as to any lesser included or related offenses or lesser
degrees. (Id. at pp. 1262, 1263.) Thus, so long as the trial court gives the other relevant
standard instructions, those instructions together will ensure the jury understands the
reasonable doubt principle as applied to the choice between greater and lesser offenses,
and there is no need to give a special instruction expressly applying the Dewberry
principle. (Friend, supra, 47 Cal.4th at pp. 55–56; see Musselwhite, supra, 17 Cal.4th at
p. 1263.)
Although Viruncruz quotes the trial court’s admonishment in his brief, he neglects
to mention it was CALCRIM No. 3519, nor does he discuss why this standard instruction
was inadequate.17 Instead of addressing the instructions that were given, Viruncruz
17 “The California jury instructions approved by the Judicial Council are the
official instructions for use in the state of California.” (Cal. Rules of Court,
rule 2.1050(a).) The CALCRIMs are such instructions. (People v. Lucas (2014)
60 Ca1.4th 153, 294, disapproved on other grounds in People v. Romero and Self (2015)
62 Ca1.4th 1, 53, fn. 19.)
42.
cursorily asserts that the trial court prejudicially erred by not giving a pinpoint instruction
on the Dewberry principle. He provides no authority to suggest CALCRIM No. 3519
does not satisfy Dewberry, nor have we found any.
Similarly, Viruncruz does not discuss CALJIC 17.10, 18 the predecessor to
CALCRIM No. 3519, which several courts have approved in cases like the one before us.
(See Crone, supra, 54 Cal.App.4th at p. 76 [“When the defendant is charged with a
greater offense which has one or more uncharged lesser included offenses, the trial court
ordinarily will give CALJIC No. 17.10, which satisfies the requirement of Dewberry.”
(Second italics added.)]; People v. Gonzalez (1983) 141 Cal.App.3d 786, 793,
disapproved on other grounds in People v. Kurtzman (1988) 46 Cal.3d 322, 330 [CALJIC
17.10 was “tailor-made to express the Dewberry concept”]; People v. St. Germain (1982)
138 Cal.App.3d 507, 521 [“In giving CALJIC No. 17.10, the trial judge adhered precisely
to Dewberry”].)19
Absent a contrary showing in the record, an appellate court assumes the jurors
were able to understand, correlate, and follow the court’s instructions. (People v.
Delgado (1993) 5 Cal.4th 312, 331; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)
Moreover, a reasonable juror would have understood CALCRIM No. 3519 and applied
18 CALJIC 17.10 provides in part: “If you are not satisfied beyond a reasonable
doubt that the defendant is guilty of the crime charged, you may nevertheless convict
[him] [her] of any lesser crime, if you are convinced beyond a reasonable doubt that the
defendant is guilty of the lesser crime. [¶] . . . [¶] . . . [¶] . . . [¶] Thus, you are to
determine whether [a] [the] defendant[s] [is] [are] guilty or not guilty of the crime[s]
charged [in Count[s] ] or of any lesser crime[s]. In doing so, you have discretion to
choose the order in which you evaluate each crime and consider the evidence pertaining
to it. You may find it productive to consider and reach a tentative conclusion on all
charges and lesser crimes before reaching any final verdict[s]. However, the court cannot
accept a guilty verdict on a lesser crime unless you have unanimously found the
defendant not guilty of the [charged] [greater] crime.”
19Viruncruz not only does not tell us what a “proper” Dewberry instruction would
have been, but he fails to cite a case where such an instruction was given.
43.
the court’s other instructions “as governing how to return the verdicts and findings after
completing deliberations.” (People v. Dennis (1998) 17 Cal.4th 468, 537.)
Jury instructions require no talismanic form. (See People v. Fiu (2008)
165 Cal.App.4th 360, 370.) The Dewberry principle need not be addressed in a single
jury instruction that explicitly connects the reasonable doubt standard to the choice
between greater and lesser offenses, and Viruncruz provides no contrary authority.
Dewberry is satisfied when the instructions as a whole advise the jury to give the
defendant the benefit of any reasonable doubt they may have with respect to all crimes
with lesser included offenses. (Friend, supra, 47 Cal.4th at pp. 54–56; Musselwhite,
supra, 17 Cal.4th at p. 1262.)
As a result, we review the entirety of the jury instructions to ascertain whether the
jury was properly advised of the principles expressed in Dewberry; in short, that the
prosecution must always prove guilt beyond a reasonable doubt. (Dewberry, supra,
51 Cal.2d at p. 556.) Dewberry is met when the jury is instructed that if it finds the
prosecution has not proven the elements of the greater offense beyond a reasonable
doubt, then the defendant can be found guilty of the lesser offense if that offense has been
proven beyond a reasonable doubt. (See People v. Barajas (2004) 120 Cal.App.4th 787,
794.) And CALCRIM No. 3519 does exactly that. 20
20 In addition to CALCRIM No. 3519, the trial court also instructed with
CALCRIM No. 220, which addressed the core principles of the presumption of innocence
and the People’s burden of proving guilt beyond a reasonable doubt, including:
“Whenever I tell you the People must prove something, I mean they must prove it beyond
a reasonable doubt.” The court also gave several instructions reinforcing the principle
that the reasonable doubt requirement applied no matter what type of evidence was
presented against Viruncruz. For example, CALCRIM No. 224 instructed that a fact
could be established with circumstantial evidence only if that fact was established beyond
a reasonable doubt, and that “[i]f you can draw two or more reasonable conclusions from
the circumstantial evidence, and one of those reasonable conclusions points to innocence
and another to guilt, you must accept the one that points to innocence.” Similarly,
CALCRIM No. 359, addressing the corpus delicti rule, also repeated the admonition that
Viruncruz could not be convicted of “a crime or a lesser included offense … unless the
People have proved his guilt beyond a reasonable doubt.” (Italics added.)
44.
We therefore reject Viruncruz’s claim that the jury was not given adequate
instructions to explain the effect of reasonable doubt on the choice between the greater
and lesser offenses. Viewed as a whole, the combined CALCRIM instructions did not
leave any misleading impressions, nor did they restrict the jury’s ability to consider the
lesser offenses. They provided the jury with sufficient information to comply with
Dewberry. (See People v. Fuentes (2009) 171 Cal.App.4th 1133, 1138 [A trial court has
no duty to give repetitious instructions].) There was no instructional error.
Even assuming Dewberry error occurred, the error was harmless in this case.
Under the Watson standard, it is Viruncruz’s burden to demonstrate the reasonable
probability of a different result. (See People v. Hernandez (2011) 51 Cal.4th 733, 746.)
However, despite having the burden to demonstrate prejudice, Viruncruz does not set
forth any facts or legal authority to support his claim and instead again merely asserts that
a more precise instruction was required. Here, it is not reasonably probable Viruncruz
would have received more favorable verdicts had the jury received a superfluous pin-
point Dewberry instruction.
This was a credibility contest: the jury either believed S.M’s account or
Viruncruz’s. There was no grey area in between where a lesser included offense to
aggravated kidnapping would fit the facts. A redundant pinpoint Dewberry instruction
would not have changed the outcome. (Crone, supra, 54 Cal.App.4th at p. 78; Dewberry,
supra, 51 Cal.2d at p. 558.)21
VI. Cumulative Error
Viruncruz next contends that a combination of errors rendered his trial
fundamentally unfair, requiring reversal. It is true “a series of trial errors, though
21 This may have been a one-on-one credibility contest in theory, but this was not
a lengthy deliberation indicating a close case. The jury retired for deliberations at
3:11 p.m. and went home at 4:06 p.m. They resumed deliberations the next morning at
9:36 a.m., and at 11:40 a.m. sent out their only note, informing the trial court, “We have a
verdict on all counts.” They expressed no need for read-back of testimony or any
clarification of the jury instructions.
45.
independently harmless, may in some circumstances rise by accretion to the level of
reversible and prejudicial error.” (Hill, supra, 17 Cal.4th at p. 844.) Here, although we
found that a few of the statements made in the prosecutor’s closing arguments were
suspect, the claim was forfeited, and they were not prejudicial in any event. Simply put,
there were no errors to cumulate.
VII. Remand for Resentencing After Senate Bill No. 81
Lastly, Viruncruz claims his sentence must be reversed and remanded for
resentencing because of recent statutory changes engendered by Senate Bill No. 81’s
(hereafter SB 81) amendments to Penal Code section 1385 when they became effective
on January 1, 2022. Not so.
The parties disagree as to whether SB 81 even applies to Viruncruz’s case.
Viruncruz argues it does under In re Estrada (1965) 63 Cal.2d 740 (Estrada). The
People respond that newly amended Penal Code section 1385, subdivision (c) expressly
applies only to those who are sentenced after January 1, 2022, and Viruncruz was
sentenced in June 2020. We need not resolve the retroactivity question, however,
because amended Penal Code section 1385 does not apply to Viruncruz for a more
fundamental reason.22
SB 81 “became effective on January 1, 2022,” and amended Penal Code
section 1385 “to specify factors that the trial court must consider when deciding whether
22 Even so, we do note that Estrada, supra, is limited to those statutory
amendments in which the Legislature has been silent on retroactivity, or as the court put
it, there is no “saving clause.” (Id., 63 Cal.2d at pp. 747–748 [“[W]here the amendatory
statute mitigates punishment and there is no saving clause, the rule is that the amendment
will operate retroactively so that the lighter punishment is imposed.” (Italics added.)].)
Conversely, when the amended statute contains “an express statement (a saving clause)
by the Legislature as to when the amendment applies . . . the rule of Estrada does not
apply.” (People v. Cruz (2012) 207 Cal.App.4th 664, 672, italics added.) SB 81 has a
“saving clause,” and it excludes Viruncruz’s case. (See People v. Flowers (2022)
81 Cal.App.5th 680, 686, petn. for rev. pending, petn. filed Sept. 1, 2022, S276237
[SB 81 inapplicable to a sentencing hearing held on May 12, 2021].)
46.
to strike enhancements from a defendant’s sentence in the interest of justice.” (People v.
Sek (2022) 74 Cal.App.5th 657, 674; see Stats. 2021, ch. 721, § 1 (2021-2022 Leg.
Sess.).)
Amended Penal Code section 1385, subdivision (c) now provides in pertinent part
that: “Notwithstanding any other law, the court shall dismiss an enhancement if it is in
the furtherance of justice to do so, except if dismissal of that enhancement is prohibited
by any initiative statute…. This subdivision shall apply to all sentencings occurring after
January 1, 2022.” (Italics added.)
One such initiative statute, enacted by the voters in 2006 with Proposition 83, does
in fact prohibit dismissal of the enhancements in this matter. Thus, Penal Code
section 667.61, subdivision (g) states: “Notwithstanding Section 1385 …, the court shall
not strike any allegation, admission or finding of any of the circumstances specified in
[Penal Code section 667.61] subdivision (d) or (e) ….” (Italics added; see Prop. 83, § 12,
approved Nov. 7, 2006.)23
Here, on the forcible child molest charge, the jury found two enhancing allegations
true: (1) Viruncruz kidnapped S.M. (Pen. Code, § 667.61, subd. (e)(1)); and (2) he
substantially increased the risk of harm to S.M. while doing so (Pen. Code, § 667.61,
subd. (d)(2)). Thus, even if the matter were being remanded for other reasons, the trial
court would still lack statutory authority under new Penal Code section 1385 to dismiss
Viruncruz’s remaining Penal Code section 667.61 enhancement.
Penal Code section 667.61’s sentencing scheme is plainly mandatory where, as
here, the requisite circumstances were properly pled and proven. (See Pen. Code,
23 In fact, in its analysis of SB 81, the Senate Committee on Public Safety was
aware that “enhancements that may not be dismissed by the court due to express language
provided by the initiative include those enacted by Proposition 83, pertaining to sex
offenses, ... passed in 2006 ….” (Sen. Com. on Public Safety, Analysis of Sen. Bill
No. 81 (2021-2022 Reg. Sess.), p. 6.) In other words, Penal Code section 667.61
enhancements.
47.
§ 667.61, subds. (b), (o).) For us to hold that a trial court should now be entitled under
new Penal Code section 1385 to refuse to impose a mandatory sentence – based on duly
proven sentencing allegations that the Legislature and the voters have expressly
prohibited it from dismissing – would nullify Penal Code section 667.61,
subdivision (g)’s prohibition, and render Penal Code section 1385 superfluous. We do
not consider such an interpretation to be consistent with the Legislature’s clear intent in
passing SB 81 or that of the voters who approved Proposition 83.
DISPOSITION
The judgment is affirmed.
SNAUFFER, J.
WE CONCUR:
PEÑA, ACTING P. J.
MEEHAN, J.
48.