People v. Gonzalez CA4/3 ( 2021 )

Filed 1/29/21 P. v. Gonzalez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G058691
v. (Super. Ct. No. 16NF2393)
GONZALO SANTOS GONZALEZ, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Julian W.
Bailey, Judge. Reversed in part, affirmed in part, and remanded.
Kristen Owen, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Senior Assistant Attorney General, Eric A. Swenson
and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
Gonzalo Santos Gonzalez appeals from a judgment after a jury convicted
him of sexually abusing two female family members. Gonzalez argues there was
insufficient evidence of corpus delicti on one of the counts and the trial court erred in
instructing the jury on unanimity. We agree with the former but not the latter. We
reverse in part, affirm in part, and remand.
FACTS
I. Substantive Facts
Gonzalez lived with his wife M.G. (Wife) and her daughter G.G. in a
one-bedroom apartment. Wife had two other adult daughters Y.C. and K.C., who was
two years younger than Y.C. K.C. had a daughter, N.C. Y.C. and K.C. were Gonzalez’s
stepchildren, and N.C. was his stepgrandchild. Wife took care of N.C. K.C. dropped off
N.C. in the morning, and Wife would take her to school. After school, Wife would pick
up N.C. and bring her to the apartment.
On August 25, 2016, Wife and Gonzalez picked up N.C. from school, went
to eat, and returned home. Wife waited outside while Gonzalez went inside. Wife asked
N.C. to get her a glass of water. G.G. was asleep in the living room. When a few
minutes passed and N.C. did not return, Wife went inside to find her.
Wife opened the bedroom door and saw N.C. face up on the bed, looking at
a cell phone. Gonzalez quickly got up from the bed. Wife asked him what he was doing.
Gonzalez was pale. Wife became hysterical and yelled at him, which woke up G.G.
Wife asked N.C. what Gonzalez was doing to her. N.C. said he touched her vagina.
Wife and G.G. took N.C. to the living room and asked her what Gonzalez did to her.
N.C. said he “would” touch her vagina. G.G. texted K.C. and told her to come to the
apartment.
When K.C. arrived, N.C. told her mother that Gonzalez “was touching her
pepa and her ass.” K.C. confronted Gonzalez, who was nervous and pale, and told him
2
that he did the same thing to N.C. that he did to her and Y.C. when they were young.
G.G. called 911. The police arrived and arrested Gonzalez.
The next day, two detectives interviewed Gonzalez after they advised him
1
of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Gonzalez told the
detectives that on August 25, 2016, he reached into N.C.’s pants and underwear, fondled
her buttocks, and inserted his pinky finger into her anus for about five seconds. He
denied touching her vagina, but said if he did, it was an accident. When asked if he had
previously molested N.C., Gonzalez told the detectives that about two months earlier, he
was in his bedroom with N.C. Gonzalez said he lowered his pants and underwear, N.C.
pulled down her pants and underwear, and he rubbed her genitals with his hand. He
placed his thumb slightly inside her vaginal opening. Gonzalez said he ejaculated while
rubbing N.C.’s genitals without masturbating.
When asked whether he had molested Y.C. and K.C., Gonzalez told the
detectives that about 20 years earlier he had rubbed their vaginas, breasts, and buttocks
with his hand on three occasions over the course of a 12-month period. Gonzalez
believed K.C. was about eight years old and Y.C. was about 10 years old. Gonzalez said
he ejaculated after rubbing their genitals. He denied orally copulating them.
2
A social worker interviewed N.C. the same day. N.C. told the social
worker that on the day police officers arrested Gonzalez, he had put his hand inside her
clothes and underwear and touched her vagina and buttocks area. N.C. told Gonzalez to
stop but he continued. She did not allege Gonzalez touched her inappropriately any time
before that date. In fact, she categorically denied he touched her before that date. When
the social worker told her that Gonzalez admitted to police he had touched her and
1
The prosecution played a recording of the interview for the jury.
2
The prosecution played a recording of the interview for the jury.
3
questioned her about other instances, N.C. repeatedly called Gonzalez a “liar” and
insisted it was just that day. The only contact N.C. described was a “kiss,” but there was
no suggestion it was sexual in nature.
II. Procedural Facts
An information amended by interlineation charged Gonzalez with the
following: on August 25, 2016, oral copulation or sexual penetration with a child
10 years old or younger (Pen. Code, § 288.7, subd. (b), all further statutory references are
to the Penal Code, unless otherwise indicated) (count 1), and lewd act upon a child under
14 years old (§ 288, subd. (a)) (count 2); between January 1, 2016, and August 24, 2016,
oral copulation or sexual penetration with a child 10 years old or younger (§ 288.7,
subd. (b)) (count 3); and 20 years earlier regarding K.C., lewd act upon a child under
14 years old (§ 288, subd. (a)) (count 4), and lewd act upon a child under 14 years old
(§ 288, subd. (a)) (count 5). The information alleged Gonzalez committed counts 2, 4,
and 5 against more than one victim. (§ 667.61, subds. (b), (e)(4).) The information also
alleged counts 4 and 5 were charged within the applicable statute of limitations. (§ 801.1,
subd. (a).) Finally, as to count 4, the information alleged there was substantial sexual
conduct. (§ 1203.066, subd. (a)(8).)
At trial, nine-year-old N.C. testified that on the day police officers came to
her house, Gonzalez touched her body with his hand. She did not testify Gonzalez
touched her inappropriately any time before that date.
G.G. testified concerning Wife confronting Gonzalez and asking N.C. what
Gonzalez did to her. G.G. testified N.C. said, “he would touch her.” G.G. added, “[N.C.]
said, like, that he would touch her, because she was using, like, past tense. So that’s
when I noticed this wasn’t the first time.”
K.C. testified she and Y.C. came to the United States and lived with
Gonzalez and Wife. When K.C. was eight years old, Gonzalez touched her and
performed oral sex on her on his bed. She said he wore tiger underwear. She could not
4
remember how many times he performed oral sex on her. Years later, Gonzalez asked
K.C. to forgive him.
Y.C.’s testimony was admitted pursuant to Evidence Code section 1108.
Y.C. testified that when she was a child, Gonzalez, who was in his underwear, came to
the bed she shared with K.C. Gonzalez touched their vaginas and performed oral sex on
both of them. When Wife entered the room screaming, Gonzalez claimed he was
covering them. Other times, he would put her hand inside his pocket and touch his penis.
She did not tell anyone because she was embarrassed.
Dr. Jody Ward, a forensic psychologist, testified concerning the five
components of child sexual abuse accommodation syndrome, including delayed
disclosure. Ward stated two-thirds of victims wait until adulthood to report they were
sexually abused as children.
After an unreported discussion regarding the jury instructions, the trial
court instructed the jury on the elements of the crimes (CALCRIM Nos. 1128, 1110),
reasonable doubt (CALCRIM No. 220), corpus delicti (CALCRIM No. 359), evidence of
uncharged sex offense (CALCRIM No. 1191A), evidence of charged sex offense
(CALCRIM No. 1191B), unanimity (CALCRIM No. 3500), and multiple counts
(CALCRIM No. 3515).
The jury convicted Gonzalez of all counts and found true all the allegations.
The trial court sentenced Gonzalez to four consecutive terms of 15 years to life on counts
1, 3, 4, and 5 for a total prison term of 60 years to life. The court imposed a concurrent
term of 15 years to life on count 2.
DISCUSSION
I. Corpus Delicti Rule—Count 3
Gonzalez argues there was insufficient evidence of corpus delicti. We
agree.
5
“In every criminal trial, the prosecution must prove the corpus delicti, or
the body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a
criminal agency as its cause. In California, it has traditionally been held, the prosecution
cannot satisfy this burden by relying exclusively upon the extrajudicial statements,
confessions, or admissions of the defendant. [Citations.]” (People v. Alvarez (2002)
27 Cal.4th 1161, 1168-1169 (Alvarez).) An objection is unnecessary. (Id. at p. 1180.)
The corpus delicti rule requires a showing as to only two elements: the fact of the harm,
and the existence of a criminal agency as the cause of that harm. (People v. Jones (1998)
17 Cal.4th 279, 301.)
“The independent proof may be circumstantial and need not be beyond a
reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a
noncriminal explanation is also plausible. [Citations.] There is no requirement of
independent evidence ‘of every physical act constituting an element of an offense,’ so
long as there is some slight or prima facie showing of injury, loss, or harm by a criminal
agency. [Citation.] In every case, once the necessary quantum of independent evidence
is present, the defendant’s extrajudicial statements may then be considered for their full
value to strengthen the case on all issues. [Citations.]” (Alvarez, supra, 27 Cal.4th at
p. 1171.)
Here, Gonzalez does not dispute sufficient evidence supports each element
of count 3 if a corpus was established. He argues, however, that without considering his
confession, there was no slight, independent evidence he sexually abused N.C. before
August 25, 2016, to support count 3. The Attorney General cites to the following
evidence that establishes the corpus delicti rule: N.C.’s interview with the social worker;
G.G.’s testimony concerning N.C.’s allegation; and evidence the trial court admitted
pursuant to Evidence Code section 1108. We will address each in turn.
The Attorney General cites to the portion of N.C.’s interview found at
3:17:35 to 3:20:13, which corresponds to pages 47 to 49 of the interview transcript. This
6
portion of the interview occurred immediately after the social worker took a break and
returned to the room. When she returned to the room, the social worker asked N.C. if
Gonzalez did anything to her on other days. N.C. said, “I’m nervous” and “I don’t have
idea [sic].” The social worker used dolls to have N.C. show her how Gonzalez touched
her. After N.C. said he “pulled [her] shirt down,” N.C. used the dolls to illustrate how
Gonzalez touched her vagina area and her buttocks area on top of her clothes. The
Attorney General then cites to the portion of N.C.’s interview found at 3:20:14 to
3:21:57, which corresponds to pages 49 to 50 of the interview transcript. During this
portion of the interview, the social worker told N.C. that she previously said that on the
day Wife caught Gonzalez, she said he put his hands inside her clothes and touched her
skin.
We watched the recording and read the interview transcript. We disagree
with the Attorney General this demonstrates two separate incidents. Although not
entirely clear, we conclude the social worker was seeking clarification on whether
Gonzalez touched N.C. on top of her clothes or made skin-to-skin contact. The Attorney
General cites to no other portion of the interview, and we found none, where N.C. alleged
Gonzalez touched her inappropriately any time before August 25, 2016. In fact, she
categorically denied he touched her before that date. After N.C. used the dolls to
illustrate how Gonzalez touched her, the social worker told her that Gonzalez admitted to
police he had. N.C. repeatedly called Gonzalez a “liar” and insisted it was just “one
day.”
The Attorney General also cites to G.G.’s testimony that when she asked
N.C. what Gonzalez did to her, she said, “he would touch her.” (Italics added.) G.G.
testified N.C.’s use of the past tense “would” indicated Gonzalez had touched her before
that day. We decline the Attorney General’s invitation to conclude that minutes after her
grandfather molested her, six-year-old N.C. conjugated the verb “will” and chose its past
7
tense “would” to signify Gonzalez had previously molested her. It would be
unreasonable to interpret a six-year-old’s comments as if she were an articulate adult.
Finally, the Attorney General cites to the Evidence Code section 1108
evidence. We briefly discuss character evidence, i.e., propensity evidence.
“Character evidence, sometimes described as evidence of a propensity or
disposition to engage in a type of conduct, is generally inadmissible to prove a person’s
conduct on a specified occasion. ([Evid. Code,] § 1101, subd. (a) . . . .) This ban against
admitting character evidence to prove conduct, however, does not prohibit admission of
specific acts of misconduct to establish a material fact like intent, common design or
plan, or identity ([Evid. Code,] § 1101, subd. (b)) . . . . [Citations.]” (People v. Villatoro
(2012) 54 Cal.4th 1152, 1159 (Villatoro).)
Evidence Code section 1108 is an exception to Evidence Code section
1101, subdivision (a)’s ban on admitting character evidence. (Villatoro, supra,
54 Cal.4th at p. 1159.) Evidence Code section 1108 authorizes the introduction of the
defendant’s prior sex crimes to prove his propensity for sexual misconduct if the
evidence is not unduly prejudicial under Evidence Code section 352. “[T]he clear
purpose of [Evidence Code] section 1108 is to permit the jury’s consideration of evidence
of a defendant’s propensity to commit sexual offenses.” (Villatoro, supra, 54 Cal.4th at
p. 1164.)
Here, the trial court instructed the jury on both charged sexual offense
evidence, counts 1 to 5, and uncharged sexual offense evidence, Y.C.’s testimony. The
issue we must decide is whether Evidence Code section 1108 evidence is slight evidence
satisfying the corpus delicti rule. We think not. Evidence that Gonzalez had a propensity
to commit sexual offenses is not slight evidence demonstrating the fact of harm in this
case, i.e., that Gonzalez sexually abused N.C. two months before August 25, 2016.
The Attorney General relies on People v. Sanchez (2016) 246 Cal.App.4th
167 (Sanchez), to support its argument Evidence Code section 1108 may be used to
8
establish the corpus delicti rule. In Sanchez, defendant was charged with six sexual
offenses, four against D.C. arising from a single encounter, and two against M.C. during
another encounter. (Id. at p. 169.) In an interview with police, defendant admitted to
digitally penetrating D.C. in the hallway, but there was no direct evidence of this crime.
(Id. at p. 172.) On appeal, defendant argued there was insufficient evidence of corpus
delicti because there was no direct evidence of the digital penetration except his
confession. (Id. at p. 173.) The Sanchez court concluded there was direct and
circumstantial evidence defendant engaged in sexual activity against D.C. (Id. at p. 177.)
The court explained D.C. testified defendant touched her vagina on the bed, another
sibling saw defendant on top of D.C. on the bed, and M.C. testified defendant molested
her. (Ibid.) In referencing M.C.’s testimony, the Sanchez court cited to Evidence Code
section 1108. (Ibid.)
The Attorney General cites to Sanchez as authority for the proposition
Evidence Code section 1108 evidence can establish corpus delicti. But in that case not
only was there Evidence Code section 1108 evidence, there was also direct evidence in
the form of D.C.’s and her sibling’s testimony defendant molested her on the day in
question. (Sanchez, supra, 246 Cal.App.4th at p. 177.) Unlike Sanchez, here, the
molestation in question did not occur at the same time, but months before. Other than
Gonzalez’s confession, the record before us includes no slight, independent evidence
demonstrating the fact of harm two months earlier. We reverse Gonzalez’s conviction on
count 3.
II. Unanimity—Counts 3, 4, & 5
Gonzalez contends the trial court erred by charging the jury with a modified
3
unanimity instruction. We disagree.
3
The trial court’s discussion of the jury instructions with counsel was not
reported.
9
The jury’s verdict must be unanimous and when the evidence suggests
there was more than one discreet crime, the prosecution must elect among the crimes or
the trial court must instruct the jury that it must agree on the same criminal act. (People
v. Russo (2001) 25 Cal.4th 1124, 1132.) We review the challenged instruction de novo
“‘in the context of the instructions as a whole and the trial record to determine whether
there is a reasonable likelihood the jury applied the instruction in an impermissible
manner.’ [Citation.]” (People v. Rivera (2019) 7 Cal.5th 306, 326.)
The trial court instructed the jury with CALCRIM No. 3500, “Unanimity,”
as follows: “The defendant is charged with sexual penetration with a child 10 years of
age or younger by a person aged 18 or older in [c]ounts 1 and 3 and lewd act upon a child
under 14 in [c]ounts 2, 4, and 5. [¶] The People may have presented evidence of more
than one act to prove that the defendant committed an offense. You must not find the
defendant guilty unless you all agree that the People have proved that the defendant
committed at least one of these acts and you all agree on which act he committed.” (Bold
omitted.)
Gonzalez claims the modified version of CALCRIM No. 3500 allowed the
4
jury to convict him of five counts based only on one act. Nonsense. Gonzalez’s parsing
of the instruction is a hyper-grammatical, nonsensical interpretation of the instruction.
The instruction adequately explained the unanimity requirement to the jury.
Additionally, the trial court instructed the jury with CALCRIM No. 3515, “Multiple
Counts: Separate Offenses,” as follows: “Each of the counts charged in this case is a
separate crime. You must consider each count separately and return a separate verdict for
each one.” If there were any ambiguity in CALCRIM No. 3500, CALCRIM No. 3515
made clear to the jury that each count needed to be addressed on its own. We presume
jurors are capable of understanding and correlating all instructions that are given.
4
Gonzalez refers to all five counts when making his claim but only seeks
reversal on counts 3, 4, and 5. We have reversed his conviction on count 3.
10
(People v. Sattiewhite (2014) 59 Cal.4th 446, 475.) There was no error. Because we
address the merits of this claim, we need not address Gonzalez’s related ineffective
assistance of counsel contention.
DISPOSITION
We reverse Gonzalez’s conviction on count 3 and remand. In all other
respects, the judgment is affirmed.
O’LEARY, P. J.
WE CONCUR:
IKOLA, J.
GOETHALS, J.
11