People v. Casimiro CA2/6 ( 2021 )

Filed 1/20/21 P. v. Casimiro CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B300831
(Super. Ct. No. BA466536)
Plaintiff and Respondent, (Los Angeles County)
v.
LORENZO CASIMIRO,
Defendant and Appellant.
A jury found Lorenzo Casimiro guilty of 11 counts of lewd
acts on a child (Pen. Code, § 288, subd. (a)); two counts of sexual
intercourse or sodomy on a child (§ 288.7, subd. (a)); two counts of
sexual penetration on a child (id., subd. (b)); and one count of
possession of child pornography (§ 311.11, subd. (a)). The jury
also found as to counts 1 through 4 and 8 through 13, Casimiro
committed the offenses against more than one victim. (§ 667.61,
subds. (c) & (e)(4).) The trial court chose consecutive sentences
for an aggregate term of 330 years to life.
At sentencing the trial court made negative comments
about Casimiro’s exercise of his right to trial, rather than accept
a plea offer. We remand for resentencing. In all other respects,
we affirm.
FACTS
Casimiro and his family shared a house with two other
families. Between 2016 and 2018, Casimiro molested two girls,
J.H. and L.U., one from each of the other two families living in
the house.
J.H.
J.H. was born in November 2009. The first incident
occurred when J.H. was eight or nine years old. Casimiro was in
one of the house’s closets with his daughter, E. E. came out of
the closet and told J.H. it was her turn. J.H. entered the closet
with Casimiro inside. He removed her pants and underwear. He
told her to sit down and spread her legs. He photographed her
vagina with his cell phone and touched her vagina with two
fingers. He told her not to tell anyone.
On another occasion, J.H. was using the bathroom.
Casimiro forced his way in. Her underwear was down and he
touched her vagina. He left when he heard E.’s voice.
On another occasion, J.H. was on Casimiro’s bed watching
a movie with other children of the house. The other children
went downstairs, leaving J.H. alone with Casimiro. He removed
her pants and underwear, got on top of her, placed his penis in
her vagina and kissed her mouth.
On another occasion, J.H. was in her bedroom watching a
movie with her brother. Casimiro knocked on the door. J.H.’s
brother let him in against her wishes. Casimiro told her brother
to go into the closet. Casimiro removed J.H.’s clothes, lay on top
of her, placed his penis into her vagina, and kissed her mouth.
He left when he heard J.H.’s mother calling.
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J.H. testified Casimiro had intercourse with her four times.
Four other times he climbed on top of her and kissed her.
L.U.
L.U. was born in April 2009. On one occasion, Casimiro
told her to go into the closet. He went in with her and closed the
door. He told her to pose with her arms on her waist. He took a
picture.
On another occasion, he entered the bathroom where L.U.
was taking a bath and touched her vagina.
On another occasion, L.U. was on Casimiro’s bed watching
a movie with other children of the house. He had the children
move to other parts of the bed. He grabbed L.U.’s foot and
rubbed it against his penis. She was unable to pull away.
On another occasion, when L.U. was wearing a dress,
Casimiro grabbed her buttocks.
On another occasion, Casimiro told L.U. to get into his bed.
He touched the outside of her vagina.
On at least eight separate occasions, Casimiro touched
L.U.’s vagina with his hand while they were in bed under the
covers. On at least four of those occasions, he penetrated her
vagina with his finger. On at least two occasions, he penetrated
her anus with his finger.
Revelation of Abuse
In March 2018, J.H. told a school official that Casimiro
kissed her and touched her vagina. The school official contacted
the authorities.
Interview with Police
Casimiro was arrested the same day. He was interviewed
the next day in Spanish. Initially he denied any wrongdoing.
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Then he admitted he engaged in sexual activity with J.H. and
L.U.
Casimiro admitted that he inserted the tip of his penis into
J.H.’s vagina on two occasions; that he once kissed her on the
mouth; that he once grabbed her vagina but did not penetrate it
with his finger; and that he took two pictures of her vagina.
Casimiro also admitted he engaged in sexual activity with
L.U., but he insisted she instigated it. She placed her foot
against his penis and took his hand and placed it on her vagina.
Casimiro expressed remorse and resolved not to do it again.
He wrote a letter of apology in Spanish to J.H. and asked her
forgiveness. He refused to write a letter to L.U. because she was
the one who initiated the sexual activity.
Cell Phone
A search of Casimiro’s cell phone revealed 24,000 pictures.
Among the pictures was one of a young girl’s vagina and a picture
of a male having sex with a girl who appears to be between 11
and 12 years of age. None of the pictures were of J.H. or L.U.
SART Exam of J.H. and L.U.
Nurse Toyetta Beukes conducted a SART exam of J.H.
Beukes found a genital tear around J.H.’s clitoris and abrasions
to her perineum. Beukes could not say what caused the injuries,
but they were consistent with sexual assault.
Beukes also examined L.U. L.U. had petechia, that is,
small red dots on the inside of her labia. These are consistent
with blunt force trauma.
Defense
Casimiro testified in his own defense. He said he is fluent
in K’iche. His Spanish-speaking abilities are limited. He did not
know he could ask for a K’iche-speaking interpreter.
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Nevertheless, he admitted he never told the interviewing
detectives that he did not understand what they were saying.
DISCUSSION
I
General Intent Instruction
Casimiro contends the trial court erred in giving CALCRIM
No. 250, the general intent instruction.
The trial court gave CALCRIM No. 1110 on lewd acts with
a child, and CALCRIM No. 1128 on sexual penetration of a child.
Both instructions told the jurors that in order to convict Casimiro
of those crimes, they must find he acted with the intent of
arousing sexual desires or gratification.
Casimiro points out that both crimes require specific intent.
But the trial court gave CALCRIM No. 250, the general intent
instruction, as follows:
“The crimes charged in this case require proof of the union
or joint operation of act and wrongful intent. For you to find a
person guilty of the crimes, that person must not only commit the
prohibited act, but must also act with wrongful intent. A person
acts with wrongful intent when he or she intentionally does a
prohibited act. However, it does not require that he or she intend
to break the law. The act required is explained in the instruction
for each crime and allegation.”
The error is harmless by any standard. No juror who
concluded Casimiro did the acts of which he was accused would
fail to find he did them for his own sexual gratification. There is
simply no other explanation for his actions.
Casimiro’s reliance on People v. Maurer (1995) 32
Cal.App.4th 1121 is misplaced. In Maurer, a jury found the
defendant, a teacher, guilty of two counts of misdemeanor child
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annoyance. (§ 647.6.) The trial court instructed the jury both
that the acts must be motivated by an unnatural or abnormal
sexual interest in the child, and that motive is not an element of
the crime and need not be shown. In concluding the error was
prejudicial, the Court of Appeal pointed out the convictions were
based on comments of a sexual nature made to the child and to
the entire class. The defendant never touched the child or tried
to seduce her. (Mauer, at p. 1131.)
The defendant’s actions in Maurer were ambiguous enough
to require reversal. But there is no ambiguity here. Casimiro
undressed one victim and took a picture of her vagina, touched
the vaginas of both victims multiple times, and sexually
penetrated their bodies multiple times. Only one conclusion can
be drawn.
II
Failure to Instruct with CALCRIM No. 301
Casimiro contends the trial court failed to instruct sua
sponte with CALCRIM No. 301 that the testimony of a single
witness is sufficient to prove any fact.
Casimiro concedes that the instruction is generally viewed
as being favorable to the prosecution who has the burden of proof.
He claims, however, that in this case the failure to give the
instruction was prejudicial to his defense. In his defense he
testified that the interview with detectives was conducted in
Spanish and that his Spanish-language abilities are limited. He
argues the jury did not know that his testimony alone would be
sufficient to establish that his Spanish-language ability was
limited.
But Casimiro gave a cogent interview with detectives in
Spanish, sat through his preliminary hearing with a Spanish
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interpreter; and even wrote a letter to J.H. in Spanish. At no
time until his trial did he claim he had difficulty with Spanish or
ask for a K’iche interpreter. Casimiro’s defense is simply not
credible. Nothing in CALCRIM No. 301 makes incredible
testimony credible.
Moreover, Casimiro’s testimony in his defense was most
remarkable for what he did not say. He had nothing at all to say
about the testimony of his victims.
The failure to give CALCRIM No. 301 is harmless. There is
no reasonable probability Casimiro would have obtained a more
favorable result had the instruction been given. (People v.
Watson (1956) 46 Cal.2d 818, 836.)
III
Motive
Casimiro contends his convictions under counts 14 and 15
must be reversed because the trial court erred in instructing that
the prosecution was not required to prove motive. (CALCRIM
No. 370.)
Counts 14 and 15 charged sexual penetration of a child in
violation of section 288.7. Casimiro points out that section 288.7,
subdivision (b) requires that the sexual penetration be “for the
purpose of sexual abuse, arousal or gratification.” (§ 289, subd.
(k)(1).)
The trial court instructed with CALCRIM No. 370 as
follows: “The People are not required to prove that the defendant
had a motive to commit any of the crimes charged. In reaching
your verdict, you may, however, consider whether the defendant
had a motive. Having a motive may be a factor tending to show
that the defendant is guilty. Not having a motive may be a factor
tending to show the defendant is not guilty.”
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Casimiro relies on People v. Maurer, supra, 32 Cal.App.4th
at pages 1126-1127. In Maurer, the defendant was convicted
under section 647.6. That section requires that the defendant be
“motivated by an unnatural or abnormal sexual interest in
children.” (Ibid.) The court held it was error to give CALCRIM
No. 370 instructing that the prosecution need not prove motive.
It is obviously confusing to instruct that the prosecution
need not prove motive and that the jury must find the defendant
was “motivated” by a sexual interest in children. Section 288.7 at
issue here uses no such language.
Section 288.7, subdivision (b) is a specific intent crime.
(See People v. Hering (1999) 20 Cal.4th 440, 446 [“for the purpose
of” is language typically denoting specific intent].) People v.
Fuentes (2009) 171 Cal.App.4th 1133 rejected the argument that
specific intent and motive are synonymous. In Fuentes, the
defendant argued that CALCRIM No. 370 conflicts with the
specific intent required for a gang enhancement. The court
stated: “An intent to further criminal gang activity is no more a
‘motive’ in legal terms than is any other specific intent. We do
not call a premeditated murderer's intent to kill a ‘motive,’
though his action is motivated by a desire to cause the victim's
death. Combined, the instructions here told the jury the
prosecution must prove that the defendant intended to further
gang activity but need not show what motivated his wish to do so.
This was not ambiguous and there is no reason to think the jury
could not understand it. The defendant claims the intent to
further criminal gang activity should be deemed a motive, but he
cites no authority for this position. There was no error.”
(Fuentes, at pp. 1139-1140.)
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Moreover, if there was error, it was harmless. As we have
previously stated, any juror who found that Casimiro committed
the acts alleged would find that he committed these acts with the
intent to obtain his own sexual gratification. Whether sexual
gratification is denominated intent or motive, the result is the
same.
IV
Multiple Convictions on Same Act
Casimiro contends the trial court erred in failing to instruct
sua sponte that the jury cannot convict him of more than one
count of a lewd act on a child based on the same act.
The prosecution charged Casimiro with four counts of lewd
acts on J.H. in counts 1 through 4. The prosecution also charged
Casimiro with seven counts of lewd acts on L.U. in counts 7
through 13. The counts did not specify any particular lewd act.
The trial court gave CALCRIM No. 3500 requiring the jury
to “all agree on which act [Casimiro] committed.” The trial court
also gave CALCRIM No. 3515, which provides, “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.”
Casimiro argues that a single course of conduct can lead to
multiple convictions. (Citing § 954; People v. Pearson (1986) 42
Cal.3d 351, 354.) But the rule refers to convictions on different
offenses based on the same act. (Ibid. [defendant can be
convicted of sodomy with a child and lewd act with a child based
on single act of sodomy].) Even without instructions, no
reasonable juror would conclude that a single lewd act can result
in multiple convictions of section 288, subdivision (a).
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Here the trial court instructed that each count charged is a
separate crime, and that the jury must consider each count
separately. There would be no need to consider each count
separately if multiple convictions of lewd act with a child could be
based on the same act.
In fact, the record shows the jury did not believe that it
could convict Casimiro of multiple counts based on the same act.
The jury sent a note to the judge: “The jury would like to know if
we can confirm whether each of the 16 counts corresponds to a
specific incident . . . . Based on our notes from the trial, we’ve
compiled our own list of incidents . . . . But can we confirm that
our list of incidents corresponds 100% to the 16 counts we’re
considering?” The trial court responded, “Each count is
associated with an act. It is up to you to decide which act(s)
occurred.”
There is no possibility the jury believed it could convict
Casimiro on more than one count for the same act. The jury
stated it had compiled a “list of incidents” and the trial court
instructed that each count is associated with an act.
V
Considering Exercise of Right to Jury Trial at Sentencing
Casimiro contends the trial court denied him due process
and the right to a jury trial when it considered the exercise of his
right to jury trial at sentencing.
At the sentencing hearing, the trial court stated: “What is
particularly despicable about this defendant, not only what he
did to these little girls, he robbed them of their innocence and of
their childhood, but he was offered a plea bargain and he didn’t
accept it. And I don’t know why he didn’t accept it because he
confessed to the police. He could have accepted the plea bargain.
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He could have accepted the sentence that was offered by [the
prosecution], but he made these little girls come into the
courtroom and be victims all over again by having to testify as to
what this defendant did. Shame on him.”
A defendant cannot be penalized for exercising his Fifth
Amendment right not to plead guilty and his Sixth Amendment
right to a jury trial. (United States v. Jackson (1967) 390 U.S.
570, 581 [20 L.Ed.2d 138, 147].)
The trial court’s comments are disturbing. The court stated
what is “particularly despicable” about Casimiro is, not only what
he did to his victims, but that he did not accept a plea bargain
and he made his victims testify at trial. It is difficult to view the
court’s comments, made immediately before sentencing, as
having no bearing on the sentence. It is true that the
indeterminate terms imposed on most of Casimiro’s convictions
were not discretionary. (§ 667.61.) But the court had the
discretion to impose concurrent or consecutive terms. (See
§ 667.6, subds. (d) & (e).) The court chose consecutive.
In In re Lewallen (1979) 23 Cal.3d 274, the defendant was
convicted by a jury after rejecting a plea offer. The trial court
made two statements that our Supreme Court concluded
demonstrate the sentencing was influenced by improper
considerations: “First, in response to defense counsel's
suggestion that placing defendant on informal probation would
suffice, the trial judge responded, ‘You mean whether or not
there's a disposition or not after a jury trial?’ Second, after
sentencing the trial judge stated, ‘I think I want to emphasize
there's no reason in having the District Attorney attempt to
negotiate matters if after the defendant refuses a negotiation he
gets the same sentence as if he had accepted the negotiation. It
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is just a waste of everybody's time, and what's he got to lose. And
as far as I'm concerned, if a defendant wants a jury trial and he's
convicted, he's not going to be penalized with that, but on the
other hand he's not going to have the consideration he would
have had if there was a plea.’ ” (Id. at p. 277.)
Our Supreme Court issued a writ of habeas corpus vacating
the judgment and remanding for sentencing.
The trial court’s comments here are not much different
from those of the trial court in Lewallen. Of course, it is entirely
possible that the court’s comments had no bearing on its
sentencing choices. But given that Casimiro was sentenced to
330 years to life, it seems prudent to remand for sentencing. We
express no opinion on how the trial court should exercise its
sentencing choices.
The sentence is vacated and the matter is remanded for
resentencing. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
TANGEMAN, J.
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Mark S. Arnold, Judge
Superior Court County of Los Angeles
______________________________
Randy S. Kravis, under appointment by the Court of
Appeal, for Defendant and Appellant
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.
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