People v. Khatoonian CA3 ( 2022 )

Filed 12/6/22 P. v. Khatoonian CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C091970
v. (Super. Ct. No. 17FE010114)
MICHAEL KHATOONIAN,
Defendant and Appellant.
A jury convicted defendant Michael Khatoonian of sexual penetration, forcible
lewd acts, and a lewd act, all involving a child victim. The jury also found true
allegations that defendant had two prior strike convictions. The trial court sentenced
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defendant to an aggregate determinate term of 30 years in prison and an indeterminate
term of 115 years to life.
Defendant now contends (1) the trial court should not have excluded evidence of
the child’s prior accusation of sexual molestation, (2) the trial court violated defendant’s
rights by excluding evidence that the child’s mother had pictures of penises on her cell
phone, (3) the trial court should not have admitted a statement that the child made to a
sheriff’s deputy, (4) the prosecutor committed misconduct by introducing the child’s
statement made to the deputy and referring to it in closing argument, (5) the trial court
erred by admitting evidence outside the record of conviction to establish that a prior
conviction was a strike, and (6) the matter must be remanded for resentencing because
the trial court failed to impose sentence on two counts and because the trial court must
apply recent legislation potentially favorable to defendant.
We agree the trial court should have imposed sentence on two stayed counts, that
remand is appropriate for further consideration as to whether a prior conviction was a
strike, and that defendant is entitled to resentencing under recent legislation. We will
vacate the sentence and remand for consideration regarding the strike allegation and for
resentencing, but we will otherwise affirm the judgment.
BACKGROUND
In 2017, the child victim in this case was 10 years old. She accompanied her
mother on a date with defendant, who picked them up and took them to his house where
they watched a movie together. As they sat on a couch with defendant between the child
and the mother, defendant reached inside the child’s pants and digitally penetrated her
vagina. He also touched her buttocks and chest under her clothing. The child told
defendant to stop, but he continued and would not let her escape. Later, the mother went
into the bathroom while the child was sitting in a chair. Defendant knelt next to the chair
and again put his hand down her pants and digitally penetrated her vagina. The child told
defendant to stop and tried to pull his hand out from her pants but she was not strong
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enough. When defendant finally withdrew his hand, he smelled his finger and said, “That
smells good.”
Eventually, the child and the mother went into the bathroom, where the child told
the mother what happened. They left defendant’s house.
During trial, defendant absconded and was later arrested in Michigan. He was
convicted in absentia and returned to California for sentencing. The jury convicted
defendant on two counts of sexual penetration of a child under 10 years of age (Pen.
Code, § 288.7, subd. (b) - counts 1 and 5),1 two counts of a forcible lewd act on a child
under 14 years of age (§ 288, subd. (b)(1) - counts 2 and 6), and one count of a lewd act
on a child under 14 years of age (§ 288, subd. (a) - count 4). The jury found true
allegations that defendant had two prior strike convictions. The trial court sentenced
defendant, as explained in detail below in the discussion of his sentencing contentions,
to an aggregate determinate term of 30 years in prison and an indeterminate term of
115 years to life.
Additional background is recounted in the discussion as relevant to the contentions
on appeal.
DISCUSSION
I
Defendant contends the trial court abused its discretion and violated his
constitutional confrontation and due process rights by excluding evidence of the child’s
prior accusation of sexual molestation.
A
Before trial, the prosecution moved to exclude evidence that the child told a
paraprofessional working in the child’s special needs class that “her grandfather was
1 Undesignated statutory references are to the Penal Code.
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kissing her on the boobs.” The statement was eventually reported to the Lodi Police
Department, and an officer interviewed the child, who denied making a report about her
grandfather. The motion to exclude was based on Welfare and Institutions Code
section 827, which limits dissemination of juvenile case files, and Evidence Code
section 352.
Defense counsel asserted there was no question that the child was referring to her
maternal step-grandfather and that the accusation was false. The defense desired to
introduce the child’s statement to show she lied in a circumstance similar to the
circumstances of this case.
After further discussions concerning the matter during trial, defense counsel
sought permission to admit evidence concerning the child’s accusation. Defense counsel
said he wanted to recall the child as a witness and expected the child would admit to
making the accusation and also admit that it was false. Defense counsel planned to have
the child’s grandmother testify that, after a Child Protective Services worker contacted
the family about the accusation, the grandmother said to the child, “Papa hasn’t touched
you, has he,” and the child responded, “No. I just combed his hair.” Defense counsel
also planned to have a Lodi police officer testify that, when the officer asked the child
about the accusation, she said she did not want to talk and denied making the report about
her grandfather. Instead, she said she and a cousin were playing a game. She also told
the officer that a man named Michael (defendant’s first name is Michael) did something
to her in Galt and she had already reported it. In addition, defense counsel had statements
from the mother that the child had lied about her grandfather. Defense counsel requested
permission to call the child, the mother, and the child’s grandmother to testify on these
matters.
The trial court excluded the evidence. It agreed evidence of a prior false
accusation would have probative value if it could be proved that the child actually made
the accusation and that the accusation was false, because it potentially impacted the
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child’s credibility. But the trial court noted that the identities of the school
paraprofessional and the Child Protective Services worker were apparently unknown.
Opening this area of inquiry (whether a false accusation was made) would require a break
in the trial to allow the prosecution to do an investigation and contact witnesses.
Moreover, defense counsel could not predict what the child would say when questioned.
The trial court also concluded the evidence of falsity was weak because the
grandmother’s question to the child (“Papa hasn’t touched you, has he”) was very leading
and was an inappropriate way to question a child who made an accusation of molestation.
Allowing the evidence could also lead to a need for evidence on child sexual abuse
accommodation syndrome. The trial court believed the inquiry had the potential to
unduly consume time and confuse the jury. The trial court ruled the evidence should be
excluded under Evidence Code section 352, even if it was admissible under Welfare and
Institutions Code section 827.
B
A complaining witness’s prior accusation of sexual molestation may be relevant to
that witness’s credibility concerning the current accusation. But the relevance depends
on the falsity of the prior accusation. (People v. Tidwell (2008) 163 Cal.App.4th 1447,
1457 (Tidwell).) And even if the prior accusation is relevant, the trial court in its
discretion may exclude the evidence under Evidence Code section 352 “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.” (Evid. Code, § 352.)
We review a trial court’s exclusion of evidence under Evidence Code section 352
for abuse of discretion -- that is, for whether the exclusion resulted in a manifest
miscarriage of justice because the exclusion was arbitrary, capricious, or patently absurd.
(Tidwell, supra, 163 Cal.App.4th at p. 1457.)
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Defendant argues exclusion of the prior accusation was an abuse of discretion
because there was substantial evidence the child made the accusation and that the
accusation was false, and the evidence was highly probative. According to defendant, the
mother learned from a Child Protective Services worker about the child’s accusation to a
school paraprofessional, and a jury could conclude the accusation was false from the
child’s response to the grandmother’s question. But the child denied having made the
accusation when asked by a Lodi police officer, and the person to whom the accusation
was made was unknown. Even if it was possible to infer that an accusation was made
because Child Protective Services and Lodi police inquired into the matter, the evidence
of the accusation was not strong, and the prosecution would be entitled to conduct further
inquiry. Moreover, defendant’s main support for the falsity of the accusation was that the
child responded to a problematic, leading question from her grandmother. These
circumstances do not establish significant probative value or abuse of discretion.
(Tidwell, supra, 163 Cal.App.4th at p. 1458.)
In addition, defendant claims the exclusion of the evidence concerning a possible
false accusation of molestation violated his due process and confrontation rights. But
proper exclusion of evidence under state rules of evidence generally does not violate a
defendant’s constitutional rights. (People v. Lucas (1995) 12 Cal.4th 415, 464.) As the
trial court did not abuse its discretion in excluding the evidence under Evidence Code
section 352, the exclusion did not violate defendant’s due process and confrontation
rights.
II
Defendant next contends the trial court violated his confrontation and due process
rights by excluding evidence that the mother had pictures of penises on her cell phone.
A
During cross-examination of the mother, defense counsel asked her whether she
and defendant exchanged pictures of private parts. The mother responded she did not
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recall that. Defense counsel then asked: “It’s not unusual for you to receive pictures of
private parts?” The prosecutor objected, and the trial court sustained the objection.
Defense counsel asked what the sustaining of the objection was based on, and the trial
court said the evidence was irrelevant. Defense counsel then returned to asking whether
the mother remembered defendant sending her a picture of his private parts. Later,
defense counsel questioned the mother about the child’s access to the mother’s phone.
The mother said the child used the mother’s phone to play games and, occasionally, to
look at pictures. Defense counsel asked: “[I]s it fair to say that there were over 40
separate penis pictures on your phone?” The prosecutor objected and asked for a bench
conference. After an unreported bench conference, the prosecutor moved to strike the
question, and the trial court granted the motion and ordered the jury to disregard the
question.
B
Defendant argues the question regarding penis pictures went to whether the child
had prior knowledge of adult sexual matters. According to defendant, “evidence that an
alleged child victim of a sexual assault had exposure to adult sexual matters prior to the
assault is relevant impeachment evidence, as it shows the child had the information
necessary to fabricate sexual activity not ordinarily within the experience of children.”
However, the appellate record does not indicate that defendant asserted such an argument
in the trial court at the time the questions were asked and the objections sustained.
Although there was an unreported bench conference, defendant concedes there is no
discussion in the record of what occurred during the sidebar, and defendant does not cite
to any portion of the appellate record in which he argued to the trial judge, in connection
with an evidentiary objection, that the evidence of the penis pictures was relevant to
impeachment.
We review a trial court’s evidentiary rulings based on the record before the trial
court at the time of the ruling. (People v. Robertson (2012) 208 Cal.App.4th 965, 991.)
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Because the record does not establish that defendant informed the trial court of the theory
under which the evidence is now sought to be admitted, reliance on the theory is forfeited
on appeal. (People v. Ramos (1997) 15 Cal.4th 1133, 1179.)
III
Defendant further contends the trial court erred in admitting the child’s statements
to a deputy, and the admission also violated his constitutional rights to confrontation and
due process.
Count 1 of the information alleged sexual penetration while on a couch, and count
5 alleged sexual penetration while on a chair. The day after the offenses, the child told
Sheriff’s Deputy Michael Heller that at one point during the prior evening she had been
sitting in a chair when her mother went to the bathroom. The child told the deputy that
defendant knelt down by the side of the chair, put his hand into her pants, and digitally
penetrated her vagina.
Before trial, defendant objected to the admission of the child’s statement to
Deputy Heller. The trial court said the child’s statement was not admissible under
Evidence Code section 1240 as a spontaneous statement, or under Evidence Code
section 1360 as a statement of a child concerning abuse, because there was no audio or
video recording of the statement to establish reliability.
At trial, however, the child denied sitting in a chair on the night of the offenses.
Following that testimony, Deputy Heller was allowed to testify for the People about what
the child had told him regarding the offense while she was sitting in the chair.
The People now argue defendant forfeited his challenge to the admissibility of the
child’s statement. They claim that once the child denied an offense in a chair, her
statement to the deputy became a prior inconsistent statement, and defendant did not
object to admission on that basis in the trial court. We exercise our discretion to address
the merits.
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Evidence Code section 1235 provides: “A statement inconsistent with a witness’s
trial testimony ‘is not made inadmissible by the hearsay rule’ (Evid. Code, § 1235) so
long as the witness either had ‘an opportunity to explain or to deny the statement’ while
testifying or has not been excused from giving further testimony (Evid. Code, § 770,
subd. (a)).” (People v. Chhoun (2021) 11 Cal.5th 1, 44.) Here, the child’s prior
statement to Deputy Heller was inconsistent with her trial testimony, and the child was
subject to recall. The defense could have questioned her further, had it elected to. Her
statement to Deputy Heller about the offense that occurred while she was seated on the
chair was therefore admissible.
Furthermore, because the child testified at trial and was subject to recall and cross-
examination, the admission of her prior inconsistent statement did not violate the
confrontation clause. (See California v. Green (1970) 399 U.S. 149, 162 [26 L.Ed.2d
489]; People v. Zapien (1993) 4 Cal.4th 929, 955.)
IV
Defendant contends the prosecutor committed misconduct by (1) introducing into
evidence the child’s statement to Deputy Heller, and (2) referring to the deputy’s
testimony in closing argument. Defendant argues the trial court had previously found the
child’s statement inadmissible, but the prosecutor intentionally violated the trial court’s
order.
As we have already explained, the basis for admissibility changed when the child
testified that she did not sit in a chair on the night of the offenses. Her statement to the
deputy became an admissible prior inconsistent statement. In any event, defendant did
not object to the prosecutor’s introduction of the evidence, or to the closing argument, on
grounds of prosecutorial misconduct. A claim of prosecutorial misconduct is forfeited
unless the defendant objected to the alleged misconduct and sought a curative jury
instruction. (People v. Crew (2003) 31 Cal.4th 822, 839.) Defendant’s prosecutorial
misconduct claim is forfeited.
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V
In addition, defendant claims the trial court erred by admitting evidence outside
the record of conviction to establish that a prior conviction was a strike.
After the jury returned verdicts on the substantive counts, it heard evidence
regarding prior conviction allegations in the information. The jury was tasked with
determining whether defendant had prior convictions in 2006 for arson of an inhabited
structure (§ 451, subd. (b)) and in 2000 for battery causing serious bodily injury
(§ 243, subd. (d)). The former is a strike conviction under all circumstances (§§ 667.5,
subd. (c)(10); 1192.7, subd. (c)(14)), but the latter is a strike conviction only if the
defendant personally caused great bodily injury not on an accomplice (§§ 667.5,
subd. (c)(8); 1192.7, (c)(8)). Among other things, the jury had to decide whether, with
regard to the prior battery conviction, defendant had personally caused great bodily injury
not on an accomplice.
To establish that the battery conviction was a strike, the People introduced a
certified abstract of judgment. In addition, the victim of that battery testified that she had
lost consciousness. The People also admitted a letter from defendant to the victim of the
battery stating that the crime was a strike because the victim lost consciousness.
Defendant now claims the battery victim’s testimony, and the letter, should not
have been admitted because they were not part of the record of conviction. (People v.
Guerrero (1988) 44 Cal.3d 343, 355 [in determining the circumstances of a prior crime,
the trier of fact may look to the entire record of conviction “but no further”].) The People
agree that the trial court improperly admitted the evidence and that remand is necessary
to permit the trial court to review the record of the prior plea proceedings. Although no
specific objection was lodged in the trial court on the ground now asserted on appeal, the
People do not argue forfeiture. We accept the People’s concession and we will remand to
permit further consideration of the 2000 battery prior conviction allegation.
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VI
Defendant argues the trial court erred in staying two counts at sentencing without
imposing a sentence on those counts. He also claims he is entitled to remand for
resentencing under recent legislation.
The trial court sentenced defendant under the three strikes law. On counts 1 and 5,
both convictions for sexual penetration of a child 10 years old or younger (§ 288.7,
subd. (b)), the trial court imposed indeterminate terms of 45 years to life to be served
consecutively. Having determined that the convictions on counts 2 and 6 for forcible
lewd acts on a child under 14 years old (§ 288, subd. (b)(1)) were for the same conduct
punished under counts 1 and 5, the trial court said those counts would be stayed under
section 654. But the trial court did not impose sentences on counts 2 and 6 before staying
them. On the count 4 conviction for a lewd act on a child under 14 years old (§ 288,
subd. (a)), the trial court sentenced defendant to a consecutive indeterminate term of 25
years to life. Thus, the total indeterminate term was 115 years to life.
The trial court imposed two determinate five-year terms on each of the count 1, 4,
and 5 convictions under section 667, subdivision (a), because defendant had been
previously convicted of two serious felonies. Thus, the total determinate term was
30 years.
The trial court should have imposed sentences on counts 2 and 6 before staying
them under section 654. The People agree. On remand, the trial court must impose a
sentence on those two counts. (People v. Duff (2010) 50 Cal.4th 787, 796.)
In addition, defendant argues he is entitled to resentencing under Assembly Bill
No. 518 (2021-2022 Reg. Sess.), which amended section 654; Senate Bill No. 567 (2021-
2022 Reg. Sess.), which amended section 1170; and Senate Bill No. 81 (2021-2022 Reg.
Sess.), which amended section 1385. We will vacate the sentence and allow the trial
court to resentence defendant under recently amended sentencing laws.
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“When new legislation reduces the punishment for an offense, we presume that the
legislation applies to all cases not yet final as of the legislation’s effective date.” (People
v. Esquivel (2021) 11 Cal.5th 671, 673.) “ ‘[F]or the purpose of determining retroactive
application of an amendment to a criminal statute, a judgment is not final until the time
for petitioning for a writ of certiorari in the United States Supreme Court has passed.’ ”
(People v. Vieira (2005) 35 Cal.4th 264, 306.) The People agree defendant is entitled to
the benefit of recent legislation, if applicable, on resentencing.
Assembly Bill No. 518 amended section 654, subdivision (a). Section 654
provides that, if an act is punishable under different statutory provisions, the trial court
may punish only under one provision, but the trial court need not choose the provision
providing for the longest term; it may exercise its discretion to impose a term under any
of the various statutory possibilities, regardless of the relative length of the term. (People
v. Mani (2022) 74 Cal.App.5th 343, 379.)
When the trial court, on remand, sentences defendant on counts 2 and 6, it will
need to choose from a triad of terms. (§ 288, (b)(1) [5, 8, or 10 years].) In making that
choice, the provisions of Senate Bill No. 567, amending section 1170, will apply.
(People v. Zabelle (2022) 80 Cal.App.5th 1098, 1109.)
In addition, Senate Bill No. 81 amended section 1385 “to specify factors that the
trial court must consider when deciding whether to strike enhancements from a
defendant’s sentence in the interest of justice. [Citation.]” (People v. Sek (2022)
74 Cal.App.5th 657, 674.)
Defendant argues we should direct the trial court to obtain a supplemental
probation report and give the parties the opportunity to introduce evidence relevant to
resentencing. However, we deem it sufficient to vacate the sentence and remand for the
trial court to hold appropriate proceedings. Defendant may make his arguments
concerning those proceedings in the trial court.
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DISPOSITION
The sentence is vacated and the matter remanded to permit further consideration
of the 2000 battery prior conviction allegation and for resentencing consistent with this
decision and applicable law. In all other respects, the judgment is affirmed.
/S/
MAURO, Acting P. J.
We concur:
/S/
DUARTE, J.
/S/
HOCH, J.
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