Filed 1/27/20 P. v. Fernandez CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE REYES FERNANDEZ,

Defendant and Appellant.

B290382

(Los Angeles County

Super. Ct. No. BA447790)
APPEAL from a judgment of the Superior Court of Los Angeles County, Leslie A. Swain, Judge. Affirmed.

Ralph H. Goldstein, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, David E. Madeo and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________

A jury convicted Jose Reyes Fernandez of three counts of sexual intercourse or sodomy with a child 10 years old or younger, one count of continuous sexual abuse of a child under the age of 14, three counts of lewd acts on a child age 14 or 15 when defendant is at least 10 years older than the child, and one count of making criminal threats. In this appeal, Fernandez contends the trial court erred in instructing the jury on the continuous sexual abuse allegation, and that he received ineffective assistance of counsel. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

When K.R. was around two or three years old, her mother began seeing Fernandez. When K.R. was four, Fernandez began living with K.R. and her mother.

At first, Fernandez provided normal parenting tasks to K.R., such as transporting her to and from school, playing with her, and feeding her. K.R. described her relationship with Fernandez as a “really good, father-daughter relationship,” and would call him Dad. K.R. was not close with her mother.

The family expanded in 2007 with the birth of K.R.’s half-sister, and again in August 2009 with the birth of K.R.’s half-brother. However, while her mother was recovering in the hospital following the birth of her half-brother, Fernandez sodomized K.R. K.R. cried, bled and told Fernandez that it hurt, but he told her that it was normal and that she shouldn’t “worry about it.” Fernandez also instructed K.R. not to tell anyone about what he did to her, and K.R. complied because she was afraid that if she said something, “he would do something to me or he would do it again.”

One month later, Fernandez again sodomized K.R. while her mother was at work. A third molestation occurred a month later. During these acts of molestation, Fernandez would also kiss K.R., touch her breasts, put his fingers in her vagina, engage in oral sex with K.R., and instruct K.R. to give him oral sex.

Fernandez repeatedly sodomized K.R. over the next few years while her mother worked on the weekends. When K.R. was almost 13 years old, Fernandez began having vaginal sex with her. This was also painful and caused K.R. to bleed. Although K.R. knew by then that what Fernandez was doing was wrong, K.R. did not say anything to anyone because she accepted it as part of her life. Fernandez told her that if she said anything that he would make sure K.R.’s mother did not believe her and that he would say that she was the one who instigated the relationship.

On her 13th birthday, K.R. had a half-day of school and decided to eat out with friends and a boyfriend. Fernandez filed a missing person’s report when she did not return home at her normal time. Later, when Fernandez found out about K.R.’s boyfriend, he changed her classes at school so she would not be able to see the boyfriend. Fernandez also told K.R. that he would kill her mother and siblings if she did not break up with her boyfriend.

Fernandez continued to molest K.R. until she turned 15 years old. On June 12, 2016 Fernandez, K.R. and her half-siblings returned from a swap meet. K.R.’s half-brother and half-sister had fallen asleep in the truck and Fernandez left them there while he went inside to have sex with K.R. However, while they were undressing, the mother returned home from work and started banging on the locked screen door to be let in to use the bathroom. K.R. ran into the bathroom, and Fernandez pulled up his underwear and jeans to let the mother into the house. When later questioned by her mother, K.R. thought her mother seemed upset and suspicious, but K.R. did not tell her what was happening because she was afraid Fernandez would hurt her mother, half-sister and half-brother.

It was around this time that K.R. noticed she had missed her period. Although she felt confused, she thought that “it was probably normal.” K.R. also told Fernandez, but he did not seem upset. Fernandez also told her that if she became pregnant, she would have to say that she had a sexual relationship with a boyfriend who left her.

On June 21, 2016 K.R. and her mother were out shopping while Fernandez was working. While they were out, Fernandez texted K.R. to let her know that he discovered her Snapchat profile and to tell her that she was “a fake” and “Why do you have social media?” K.R., who often received sexually explicit text messages and pictures from Fernandez, became upset, not only because Fernandez told her not to have a social media account, but because she did not know what he was going to be like when she had to confront him. K.R.’s mother began asking her why her mood had changed and demanded to see her phone when they returned home. After K.R. and her mother argued, K.R. eventually turned the phone over to her mother. After the mother reviewed the text messages from Fernandez, K.R. tearfully told her mother that Fernandez had been sexually abusing her since she was nine years old.

Consequently, the mother took K.R. to the police station where she was interviewed by Officer Mario Bojorquez. K.R. also received a sexual assault exam at Los Angeles County General Hospital; K.R.’s pregnancy was discovered.

After being arrested, Fernandez sent a letter to K.R. asking her to lie and say that the sex was consensual.

Fernandez was charged by information with nine counts: three counts of sexual intercourse or sodomy of a child 10 years of age or younger (Pen. Code, § 288.7, sub. (a)); one count of continuous sexual abuse of a child under the age of 14 (§ 288.5, subd. (a)); four counts of committing a lewd act on a child aged 14 or 15 years old when defendant is at least 10 years older than the child (§ 288, subd. (c)(1)); and one count of making criminal threats. (§ 422, subd. (a).) As to count six, the information specially alleged that Fernandez inflicted great bodily injury under section 12022.7, subdivision (a).

The jury found Fernandez guilty as to all counts, and found true the special allegation that he inflicted great bodily injury on K.R. The trial court sentenced Fernandez to an aggregate state prison term of 99 years eight months to life, consisting of consecutive indeterminate terms of 25 years to life for each of the sexual offenses charged in counts 1 through 3; a consecutive term of 16 years for continuous sexual abuse of a minor; an aggregate determinate term of five years for counts five through eight, plus three years for the section 12022.7, subdivision (a) enhancement attached to count six; and eight months for making criminal threats.

DISCUSSION

A. Any Error in the Trial Court’s Instructions on Continuous Sexual Abuse Was Harmless

Fernandez contends the trial court’s instructions on the charge of continuous sexual abuse erroneously permitted the jury to convict him without finding specific intent.

1. The Trial Court’s Instructions

Prior to deliberations, the trial court instructed the jury, pursuant to CALCRIM No. 252, that several crimes, including continuous sexual abuse, required general criminal intent. The modified jury instruction given to the jury read: “The following crimes and allegation require criminal intent: . . . Continuous Sexual Abuse as charged in Count 4. . . . For you to find a person guilty of these crimes or to find the allegation true, that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act; however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime or allegation.”

The court also instructed the jury pursuant to CALCRIM No. 1120 on the elements of continuous sexual abuse of a child. The court stated, in relevant part: “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant lived in the same home with/or had recurring access to a minor child; [¶] 2. The defendant engaged in three or more acts of substantial sexual conduct/or lewd or lascivious conduct with the child; [¶] 3. Three or more months passed between the first and last acts; [¶] AND [¶] 4. The child was under the age of 14 years at the time of the acts. . . . [¶] Substantial sexual conduct means oral copulation or masturbation of either the child or the perpetrator, or penetration of the child’s or perpetrator’s vagina or rectum by the other person’s penis or any foreign object. [¶] Lewd or lascivious conduct is any willful touching of a child accomplished with the intent to sexually arouse the perpetrator of the crime. Contact with the child’s bare skin or private parts is not required. Any part of the child’s body or the clothes the child is wearing may be touched. Lewd or lascivious conduct also includes causing a child to touch his or her own body or someone else’s body at the instigation of a perpetrator who has the required intent. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.”

2. Governing Legal Principles

“‘It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.’’ [Citations].” (People v. Diaz (2015) 60 Cal.4th 1176, 1189.) The trial court therefore has a sua sponte duty to instruct the jury on the essential elements of each charged offense. (People v. Merritt (2017) 2 Cal.5th 819, 824.)

“An instructional error that improperly describes or omits an element of the crime from the jury’s consideration is subject to the ‘harmless error’ standard of review set forth in Chapman v. California (1967) 386 U.S. 18, 24” [Chapman], which requires reversal unless it “appears beyond a reasonable doubt that the instructional error did not contribute to the jury’s verdict.” (People v. Lamas (2007) 42 Cal.4th 516, 526; accord, People v. Aranda (2012) 55 Cal.4th 342, 367 [“an error is deemed harmless when a reviewing court, after conducting a thorough review of the record, ‘concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence’”].)

3. The General Intent Instruction Was Harmless Error

At trial, the People argued Fernandez engaged in three or more acts of substantial sexual conduct or lewd or lascivious conduct with K.R. To establish the crime of continuous sexual abuse, the “lewd or lascivious” acts element required the People to prove beyond a reasonable doubt that Fernandez had the specific intent of sexual gratification. (People v. Whitham (1995) 38 Cal.App.4th 1282, 1294 [“the ‘lewd or lascivious conduct’ aspect of section 288.5 requires the specific intent of sexual gratification”]; People v. Garcia (2014) 229 Cal.App.4th 302, 312, fn. 3 [“to commit a lewd and lascivious act, the perpetrator must harbor the intent to arouse the sexual desires of the child or him or herself”].) The “substantial sexual conduct” element requires only a general intent. (People v. McCarthy (2016) 244 Cal.App.4th 1096, 1110 [“a conviction for violating section 288.5 could be based upon a course of substantial sexual conduct within the meaning of section 1203.066, subdivision (b), which requires no specific intent”] People v. Whitham, supra, 38 Cal.App.4th at p. 1294 [same].)

While the People contend that substantial sexual conduct alone was sufficient to convict Fernandez, it is uncertain whether the jury based its decision on substantial sexual conduct or the lewd or lascivious element of the crime. If based on the lewd or lascivious requirement, the instructions given by the trial court were contradictory as to the required intent. (Francis v. Franklin (1985) 471 U.S. 307, 322 [“Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jury applied in reaching their verdict”]; accord, People v. Gay (2008) 42 Cal.4th 1195, 1225 [same].) Accordingly, we agree with Fernandez that the trial court erred when it instructed pursuant to CALCRIM No. 252 that the continuous sexual abuse charge required only general criminal intent.

Therefore, the issue is whether the instructional error was prejudicial. (People v. Maurer (1995) 32 Cal.App.4th 1121, 1128 [“If conflicting instructions on the mental state element of an alleged offense can act to remove that element from the jury’s consideration, the instructions constitute a denial of federal due process and invoke the Chapman ‘beyond a reasonable doubt’ standard for assessing prejudice”]; accord, People v. Jeter (2005) 125 Cal.App.4th 1212, 1217 [same].) A review of the entire record leaves no reasonable doubt that the specific intent of sexual gratification required to establish the “lewd or lascivious” acts in CALCRIM No. 1120 was “uncontested and supported by overwhelming evidence.” (People v. Aranda, supra, 55 Cal.4th at p. 367.) K.R testified that Fernandez had anal, vaginal and oral sex with her and fondled her breasts and vagina during the period in question. The specific intent of sexual gratification cannot “reasonably be disputed.” (People v. Ewoldt (1994) 7 Cal.4th 380, 406 [where victim testified defendant “repeatedly molested her, fondling her breasts and genitals and forcing her to touch his penis,” the intent for committing a lewd act “could not reasonably be disputed”]; People v. Lopez (2010) 185 Cal.App.4th 1220, 1229 [the intent of a touching “‘must be inferred from all the circumstances,’” including “‘the identity of the perpetrator, the nature of the touching, [and] the absence of an innocent explanation’”].)

Accordingly, we conclude beyond a reasonable doubt that the error did not contribute to the jury’s verdict. (People v. Brenner (1992) 5 Cal.App.4th 335, 339–340 [failure to instruct on specific intent was harmless beyond a reasonable doubt where the conduct in question was “absolutely unambiguous as to its intent”]; People v. Aranda, supra, 55 Cal.4th at p. 367; People v. Dollar (1991) 228 Cal.App.3d 1335, 1343–1344 [same].)

B. The Trial Court Properly Instructed the Jury on The Unanimity Requirement as to Continuous Sexual Abuse

The trial court instructed the jury on the unanimity requirement for the crimes with which Fernandez was charged. However, the trial court modified CALCRIM No. 3501 so that the jury would not have to unanimously agree as to which three acts established the charge of continuous sexual abuse. This modification was consistent with section 288.5, subdivision (b), which states: “To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number.” (See People v. Whitham, supra, 38 Cal.App.4th at p. 1297 [“Accordingly, it is the number of acts of molestation which is the essential element of the crime, and not jury unanimity about which particular acts constitute the crime”].)

“We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. [Citation.] Review of the adequacy of instructions is based on whether the trial court ‘fully and fairly instructed on the applicable law.’” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088; accord, People v. Kumar (2019) 39 Cal.App.5th 557, 563-564.) As appellant concedes, the instruction correctly states the law. Nevertheless, Fernandez argues that section 288.5 is unconstitutional because the jury should be required to agree on which three acts constitute the continuous sexual abuse.

In People v. Cissna (2010) 182 Cal.App.4th 1105, the court examined whether a defendant’s constitutional rights were violated “by failing to give [an] unanimity instruction for the count 1 offense of continuous sexual abuse of a child under age 14.” (Id. at p. 1123.) The Cissna court concluded, and we agree, that “[t]he continuous-course-of-conduct exception to the unanimity requirement applies when, as here, the statute contemplates a continuous series of acts over a period of time. . . . There is no violation of the constitutional right to unanimous agreement on the criminal conduct because the actus reus of the offense is the course of conduct, not a specific act.” (Id. at p. 1124; accord, People v. Jones (1990) 51 Cal.3d 294, 321 [“But we reject the contention that jury unanimity is necessarily unattainable where testimony regarding repeated identical offenses is presented in child molestation cases. In such cases, although the jury may not be able to readily distinguish between the various acts, it is certainly capable of unanimously agreeing that they took place in the number and manner described”]; People v. Higgins (1992) 9 Cal.App.4th 294, 307 [“By criminalizing a course of conduct, Penal Code section 288.5 intended to make proof of specific acts unnecessary. The fact that the jurors select different acts to satisfy the numerical threshold for a course of conduct does not render the statute unconstitutional. Rather, it assures the jury must agree there is a course of conduct and prevents conviction based on a single act or series of acts upon which the jury does not agree”]; People v. Adames (1997) 54 Cal.App.4th 198, 207 [“We hold that the absence of a requirement that the jury unanimously agree on the particular incidents underlying a violation of section 288.5 does not violate the federal Constitution, specifically, the Sixth Amendment guarantee of the right to a jury trial or the Fourteenth Amendment guarantee of due process”]; People v. Gear (1993) 19 Cal.App.4th 86, 89-92 [same]; People v. Whitham, supra, 38 Cal.App.4th at p. 1297 [same].)

C. Fernandez Has Failed to Establish a Claim of Ineffective Assistance of Counsel

Fernandez argues his trial counsel provided ineffective assistance as to counts one through three when he failed to impeach K.R. based on statements she allegedly made to Officer Bojorquez that the first initial act of abuse was vaginal intercourse. Fernandez contends these statements would have shown that K.R. was not molested before she turned 13 years old despite K.R.’s testimony that Fernandez began molesting her when she was nine years old.

“‘“‘In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome.’”’” (People v. Johnson (2016) 62 Cal.4th 600, 653; accord, People v. Rices (2017) 4 Cal.5th 49, 80.) “‘The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter.’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 656; accord, People v. Vines (2011) 51 Cal.4th 830, 875.)

At trial, K.R. was asked by defense counsel: “Do you recall that when you spoke to the first police officer, you told him that when Jose started having sex with you, it was vaginal sex, do you remember telling him that?” K.R. answered “No.” From this, Fernandez makes the inference that his trial counsel would not have asked this question unless the police report or police interview transcript contained a statement from K.R. that the initial act of abuse was vaginal intercourse. However, neither the transcript nor the police report is part of the record and “[w]e cannot evaluate alleged deficiencies in counsel’s representation solely on defendant’s unsubstantiated speculation.” (People v. Mai (2013) 57 Cal.4th 986, 1018; accord, People v. Cluff (2001) 87 Cal.App.4th 991, 1002 [“A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . A finding of fact must be an inference drawn from evidence rather than … a mere speculation as to probabilities without evidence”].) If facts exist outside the record, the issue is more appropriately decided in a habeas corpus proceeding where all relevant facts can be developed. (People v. Gray (2005) 37 Cal.4th 168, 211; accord, People v. Avena (1996) 13 Cal.4th 394, 419.)

DISPOSITION

The judgment is affirmed.

ZELON, J.

We concur:

PERLUSS, P. J.

SEGAL, J.