Filed 1/22/20 P. v. Sanchez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

ISRAEL SANCHEZ,

Defendant and Appellant.

B291736

(Los Angeles County

Super. Ct. No. BA446666)

APPEAL from a judgment of the Superior Court of Los Angeles County, Douglas W. Sortino, Judge. Affirmed as modified.

Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted former police officer Israel Sanchez of various crimes arising out of his sexual assaults of women while on duty. He contends that his convictions must be reversed because the trial court failed to orally instruct the jury on a charged crime and omitted an element of another. He also contends that the trial court should have stayed certain sentences. We reject his claims of instructional error but agree that sentencing error occurred.

BACKGROUND

I. The sexual assaults

Sanchez was a patrol officer for the Monterey Park Police Department. The department’s patrol cars are equipped with video cameras and audio recording devices. Officers can manually activate and deactivate the audio recording device by pressing a button on the utility belt they wear. Officers also can manually control the video.

In 2014, Sanchez worked at night, alone. During that time, he sexually assaulted three women: Jessica S., Jessica R., and Bryanna S.

A. Jessica S.

On the early morning of July 28, 2014, Jessica S. drove to her friend’s house in Monterey Park. She was walking to the house from her car when Sanchez stopped her. After searching her purse for drugs and not finding any, he put her in his patrol car. He suggested that she was hiding drugs in her underwear, so he had her search herself by running her hands over her bra and underwear. Sanchez put his fingers inside her vagina, he said to see if she had anything illegal. He told Jessica S. that if she did not listen to what he told her to do she would be arrested. He let her return to her car, but, as she sat, he twice reached through the open window and under her shirt to rub her breasts. He told her that if she said anything he would “come back.”

During the encounter, the video recorder was repeatedly turned off and on but the video shows Sanchez putting his arm through the car window and moving his arm up and down.

B. Jessica R.

On August 7, 2014, Sanchez pulled over Jessica R., who was driving her car. She recognized Sanchez because he had stopped her a year before for driving under the influence. After that prior stop, he asked her to have coffee with him, but she did not go. During the current stop, Jessica R. told Sanchez she had done methamphetamine weeks earlier and was driving with a suspended license. Sanchez had her do a “bra shake” to see if she had drugs.

Sanchez moved Jessica R. to the patrol car. A second officer arrived to assess whether Jessica R. was under the influence of a drug. After examining her, the second officer left. Alone again with Jessica R., Sanchez turned off the video recorder and told her to lift her shirt. When she did as he demanded, he commented, “nice nipples” and flicked her nipple with his hand. At his insistence she was hiding something in her underwear, she pulled down her pants. He told her to move her underwear so that he could see her vagina. Sanchez told Jessica R. that if she did what he wanted then he would let her go. He twice touched her vagina, “playing with the lips.” He told her, “nice hair.” Jessica R. was afraid Sanchez would kill her.

During these events, Jessica R. saw Sanchez touch his belt, which controlled the audio device. Accordingly, the video of the incident contained multiple gaps of one to six minutes long.

C. Bryanna S.

On the night of August 15, 2014, Bryanna S. and her boyfriend were having sex in the back of her car. Sanchez shone a light into the car, drew his gun, made them get out of the car, and put Bryanna S. in the patrol car. Sanchez told Bryanna S. and her boyfriend that they could be arrested for indecent exposure, requiring them to register as sex offenders. While alone with Bryanna S., Sanchez told her she had a beautiful body. Saying he wanted to make sure Bryanna S. did not have drugs, he asked her to lift her shirt, commenting “nice” when she did so. When he said he wanted to make sure she wasn’t hiding anything in her underwear, she moved her underwear so that he could see her genital area.

The video recording of the incident had breaks during Sanchez’s interactions with Bryanna S. but not with her boyfriend.

II. Verdict and sentence

The jury found Sanchez guilty of three counts of false imprisonment by violence, menace, fraud or deceit (Pen. Code, § 236; counts 1 [Bryanna S.], 2 [Jessica R.], 3 [Jessica S.]), soliciting a bribe (§ 68; count 4), five counts of assault by a public officer (§ 149; counts 5 [Jessica R.], 6 [Jessica S.], 11 [Jessica R.], 12 [Jessica R.], 13 [Jessica S.]), and five counts of sexual battery by restraint (§ 243.4, subd. (a); counts 7 [Jessica R.], 8 [Jessica R.], 9 [Jessica S.], 10 [Jessica S.], 14 [Jessica R.]).

On June 5, 2018, the trial court sentenced Sanchez to three years on count 7; one year on each of counts 8, 9, 10, and 14; and eight months on count 1. The trial court imposed concurrent sentences on counts 2, 3, and 4 and imposed but stayed sentences under section 654 on counts 5, 6, 11, 12, and 13. Sanchez’s total prison term therefore was seven years eight months.

DISCUSSION

I. Failure to instruct the jury

When orally instructing the jury, the trial court failed to instruct on the charged offense of assault by a public official and its lesser included offense of simple or misdemeanor assault, and the fraud or deceit elements of felony false imprisonment. This was error. The issue therefore is whether the error is reversible per se and, if not, whether the errors were harmless.

A. The error is not reversible per se

A criminal defendant has the right to a jury determination that the defendant is guilty of every element of the crimes charged beyond a reasonable doubt. (People v. Merritt (2017) 2 Cal.5th 819, 824 (Merritt).) Hence, a trial court must instruct the jury on the essential elements of the charged offenses. (Ibid.) And, given that the class of structural errors requiring reversal per se is limited, only an instructional error or omission that amounts to a total deprivation of a jury trial is structural error, such as where the jury is given a defective reasonable doubt instruction. (Id. at pp. 822, 826, 829–830.) Otherwise, a failure to instruct on elements of a crime does not require reversal if it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error. (Id. at pp. 822, 831.)

Thus, even the extreme case of a trial court’s complete failure to instruct—orally and in writing—on a charged offense is amenable to harmless error analysis. (Merritt, supra, 2 Cal.5th at p. 821.) In Merritt, the trial court failed to instruct the jury on the elements of the charged offense of robbery. Although the more elements the instructions omit the more likely the error is prejudicial, Merritt refused to hold categorically that such error can never be harmless. Rather, because the jury was otherwise instructed on the mental state required for robbery, the need to find the defendant’s identity as the perpetrator, and the elements of an accompanying firearm-use allegation, the error was amenable to review under the harmless beyond a reasonable doubt standard. (Ibid.)

Further, the less extreme case where a trial court misreads instructions also is subject to harmless error analysis, when the written instructions given to the jury are correct. (People v. Osband (1996) 13 Cal.4th 622, 717 [written instructions govern conflict with oral instructions]; People v. Garceau (1993) 6 Cal.4th 140, 189–190 [incomplete oral instruction harmless where written instruction correct].)

Applying this law, we cannot agree that the trial court’s failure to instruct the jury orally on the charged offense of assault by a public officer and on simple assault was reversible per se, as the error did not constitute a total deprivation of Sanchez’s jury trial right. The error is amenable to harmless error analysis under the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24. In so finding, we note that the trial court in Merritt, supra, 2 Cal.5th 819 did not instruct on the charged offense orally or in writing, yet Merritt found that the error was not structural. In contrast to Merritt, the jury here received the correct written instructions, which fact strengthens our conclusion that the error is not structural. At the outset of orally instructing the jury, the trial court told the jury it would receive a written copy of instructions. The clerk’s transcript on appeal contains a file-stamped copy of the complete instructions. The jury therefore was not wholly without instruction. The jury received the instructions in writing, which gives rise to a presumption it was guided by them. (See People v. Mills (2010) 48 Cal.4th 158; People v. McLain (1988) 46 Cal.3d 97, 111, fn. 2.)

Sanchez, however, argues that the presumption is inapplicable. First, he cites People v. Murillo (1996) 47 Cal.App.4th 1104, 1107, where the trial court failed to orally instruct the jury on CALJIC No. 2.21.2, witness willfully false, but did include it in the written packet sent to the jury. Murillo at page 1107 found it was not possible to determine if the jury read its written copy of the instruction and presumed it had not. But, because the jury was given other instructions covering essentially the same issue, Murillo found the error harmless. Murillo is unpersuasive, as it does not address the presumption juries are guided by the written instructions.

Second, Sanchez argues that the jury here did not get the correct written instructions. To support this argument, he refers to a discussion about instructions during which the trial court asked if counsel had reviewed the “final packet.” From this, as well as the basic fact the trial court did not read the omitted instructions, Sanchez suggests that the trial court had two written packets of instructions: an incomplete packet it read to the jury, and a complete packet that is in the clerk’s transcript. From this, Sanchez further speculates that the trial court gave the jury the incomplete written packet, although he admits it is at least equally likely the trial court gave the jury the complete packet of written instructions. We agree it is possible the trial court had two sets of instructions, as instructing a jury is a collaborative process that involves editing, removing, and adding instructions. Even so, we disagree that the mere existence of more than one set of instructions is sufficient to rebut the presumption the jury received the written instructions as contained in the clerk’s transcript. True, there can never be absolute assurance that the written instructions sent into a jury room are identical to those orally read. But, this is why there are burdens on appeal. That is, we trust absent an affirmative showing there is reason to distrust. (See People v. Davis (1996) 50 Cal.App.4th 168, 172 [appellant’s burden to show error on face of record].) The record here provides no reason to distrust that the clerk copied and gave the correct packet of written instructions to the jury. The record contains a correct and complete written copy of the instructions, counsel in closing argument read from the correct instructions, and neither counsel objected to the written instructions but rather approved the final packet. This record therefore supports the presumption that the jury had the correct and complete written instructions as reflected in the clerk’s transcript.

Having concluded that all instructional errors at issue are subject to harmless error analysis, we consider each omitted instruction in turn.

B. Felony assault by a public officer

Although the trial court did not orally instruct the jury on the charged offense of assault by a public officer, the error was not prejudicial because (1) the jury received the correct written instruction, (2) the prosecutor accurately described the elements of the offense in closing argument, and (3) the jury necessarily found the omitted elements of the charged offense true.

First, the trial court gave the jury this written instruction on felony assault by a public officer:

“The defendant is charged in Counts 5, 6, 11, 12, and 13 with assault by a public officer. Counts 5, 11, and 12 are based on the testimony of Jessica R. Counts 6 and 13 are based on the testimony of Jessica S. These charges are based on the same alleged events as those alleged in support of the sexual battery by restraint offenses alleged in Counts 7, 8, 9, 10, and 14.

“Every person who, under color of authority, assaults any person, is guilty of a violation of . . . section 149. To prove this crime, the People must prove that:

“1. The defendant assaulted another person;

“2. At the time of the assault, the defendant was a public officer; and

“3. At the time he committed the assault, the defendant was acting under color of authority without lawful necessity.

“ ‘Assault’ is defined in another instruction which I shall give later.

“ ‘Public officer’ includes any peace officer, as defined in an earlier instruction.

“ ‘Color of authority’ means performing or purporting to perform any duty of a public officer, or performing any act which is made possible only because he is clothed with authority of law or the pretense of authority of law.

“ ‘Lawful necessity’ consists of (1) reasonable cause to believe that the person to be arrested or detained has committed any public offense and (2) use of reasonable force to effect the arrest or detention.

“ ‘Reasonable cause to arrest or detain’ is defined in another instruction that I have already given to you.

“ ‘Without legal necessity’ means either (1) the non-existence of legal cause to arrest or detain or (2) the use of unreasonable or excessive force to effect an arrest or detention. Either element alone is sufficient to prove the absence of legal necessity.

“ ‘Unreasonable force’ is the use of more force than is objectively reasonable to accomplish a lawful purpose. This is an objective standard, to be measured not by the subjective opinion of the defendant, but by the objective standard of a reasonable police officer in the same situation, with the same training and experience, and aware of the same facts and circumstances.

“The People bear the burden of proving the defendant’s conduct was without lawful necessity. If the People have not done so, you must find the defendant not guilty of the crime of assault by a public officer.”

Sanchez raises no issue as to the legal adequacy of this written instruction. Therefore, the jury received adequate instruction on the charged offense.

Second, and in addition to receiving the above written instruction, the prosecutor restated the elements of the crime in her closing argument: defendant assaulted another person, at the time of the assault he was a peace officer, and when he committed the assault he was acting under color of authority “without lawfulness.”

Finally, omission of an instruction is harmless beyond a reasonable doubt if the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. (Merritt, supra, 2 Cal.5th at pp. 831–832; People v. Wright (2006) 40 Cal.4th 81, 98.) Based on other instructions given orally and in writing to the jury and on the verdicts, the jury necessarily found true the elements of assault by a public officer. Thus, as to the first element of that offense (Sanchez assaulted another person), the jury found him guilty of sexual restraint by battery of Jessica S. and Jessica R. Simple assault is a lesser included offense of sexual battery by restraint. (People v. Carapeli (1988) 201 Cal.App.3d 589, 595.) Therefore, the jury necessarily resolved this element against Sanchez.

As to the second element (Sanchez was a public officer), the jury convicted Sanchez of false imprisonment and of soliciting a bribe. In finding him guilty of those offenses, the jury found that he was a peace officer (which is the same as a public officer) and an executive officer. The trial court gave CALJIC No. 1.26, which defined peace officer to include “[a]ny chief of police, employed in that capacity, of a city, or any police officer, employed in that capacity and appointed by the chief of police or the chief executive of the agency, of a city.” (Italics added.) Further, per CALCRIM No. 2670, the jury was instructed that to find Sanchez guilty of false imprisonment the People had to prove Sanchez was “not lawfully performing his duties as a peace officer at the time of the alleged crimes.” CALCRIM No. 2670 also provided that a “peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone.” In addition, the jury was informed per CALCRIM No. 2603 regarding the bribery count that Sanchez had to have been acting as an executive officer when he took the bribe. The instruction explained that an “executive officer is a government official who may use his or her own discretion in performing his or her job duties. A Monterey Park Police Officer is an executive officer.” The jury thus having found Sanchez guilty of soliciting a bribe and of false imprisonment necessarily found that Sanchez was a peace officer.

Finally, the third element of assault by a public officer is that when Sanchez committed the assault, he acted under color of authority, without lawful necessity. Similar to the second element of assault by a public officer, the jury necessarily found that Sanchez acted under color of authority when he solicited a bribe and falsely imprisoned the victims. Lawful necessity consists of reasonable cause to believe that the person to be arrested or detained committed a public offense and use of reasonable force to affect the arrest or detention. The jury necessarily found that Sanchez acted without lawful necessity because it found, in connection with the false imprisonment counts, that a “peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone.” Therefore, by its verdicts on the false imprisonment counts, the jury resolved the third element of assault by a public officer against Sanchez.

C. Simple assault

Sanchez similarly contends that the trial court failed to instruct orally on simple assault (CALCRIM No. 915) as a lesser included offense of assault by a public officer. However, as with the other omitted oral instructions, the jury received written instruction on simple assault. Simple assault was not given as a lesser included offense. Rather, the purpose of CALCRIM No. 915 was to define assault as used in the felony assault by a public officer instruction.

Even if it is Sanchez’s argument that simple assault should have expressly been given as a lesser included offense, then instruction on a lesser included offense is required only when there is evidence the defendant is guilty of the lesser offense but not of the greater. (See People v. Banks (2014) 59 Cal.4th 1113, 1159–1160.) The record contains insufficient evidence Sanchez merely committed a simple assault as to Jessica S. and Jessica R. Sanchez testified in his defense and denied touching them. The activity he admitted having committed—asking Jessica S. to lift her shirt so he could verify she did not have a weapon in her waistband and having Jessica R. do a bra shake to find hidden drugs—were not assaults. If Sanchez was guilty of any crime, it was of assault by a public officer.

D. Felony false imprisonment

Unlike assault by a public officer, the trial court did not wholly fail to instruct the jury orally on felony false imprisonment. Instead, as to that charge, the trial court correctly told the jury that to prove Sanchez committed the crime the People had to prove he intentionally and unlawfully restrained, confined, or detained someone by violence or menace. However, the trial court omitted three words from the end of that sentence: fraud or deceit.

A similar error occurred in People v. Mills, supra, 48 Cal.4th 158. When instructing the jury, the trial court misspoke three times. Its most significant error was inserting “ ‘not’ ” into the instruction, which had the effect of giving the jury the opposite of the correct definition of the specific intent required for the crime. (Id. at p. 200.) Noting that the risk of discrepancies between the orally delivered and written instructions exists in every trial, Mills relied on the presumption that, to the extent there is a discrepancy between the oral and written instructions, the written instructions control. (Id. at p. 201.) As the jury received the correct written instructions, the errors were harmless. (Ibid.)

The jury here also received the correct written instruction on felony false imprisonment, which contained the three orally omitted words. Hence, the jury was correctly instructed that to find Sanchez guilty of felony false imprisonment, he had to have intentionally and unlawfully (restrained, confined, or detained) someone by violence, menace, fraud or deceit. In addition to receiving that correct written instruction, the jury received other written instruction referring to the fraud or deceit component of the offense. Thus, the jury was instructed that false imprisonment by fraud or deceit requires a specific mental state (CALCRIM No. 252); that evidence of Sanchez’s character regarding his interactions with women could create a reasonable doubt he committed false imprisonment by violence, menace, fraud or deceit (CALCRIM No. 350); that if the People failed to meet its burden of proving that Sanchez was not lawfully performing his duties as a peace officer at the time of the crimes, the jury had to acquit him of false imprisonment by violence, menace, fraud or deceit (CALCRIM No. 2670); and that simple false imprisonment was a lesser crime of false imprisonment by violence, menace, fraud or deceit (CALCRIM No. 3517).

Moreover, the People focused on the fraud or deceit aspect of false imprisonment in her argument. The People first read almost the entire instruction to the jury, including the definition of fraud or deceit. After arguing that Sanchez used menace to detain the victims, the People told the jury she wanted to focus on fraud and deceit. The People then discussed how Sanchez defrauded and deceived each victim. As to Bryanna S., the detention began lawfully but it turned unlawful when he told Bryanna S.’s boyfriend he was free to go but put Bryanna S. in the patrol car. Sanchez further deceived her by saying she could be guilty of indecent exposure. As to Jessica R., Sanchez failed to tell her he found nothing on her person and instead said he needed to continue his investigation as a pretense to assault her. As to Jessica S., although she had committed no crime, he told her he was giving her a break by not taking her to jail.

Finally, the jury could have also found the first element of false imprisonment true based on a theory that Sanchez restrained the victims by violence or menace. The trial court instructed on those elements orally and in writing. As to menace, the instructions defined it as a verbal or physical threat of harm, including using a deadly weapon. Further, the threat of harm may be express or implied. As to Jessica S., Sanchez put his fingers inside her vagina and then rubbed her breasts. As to Jessica R., Sanchez flicked her nipples, forced her to pull down her pants, and played with her vagina. And, Sanchez made Bryanna S. pull aside her underwear so that he could see her vagina. Such actions can be considered menacing, especially when done by an armed police officer. All three victims testified that Sanchez scared them. Therefore, even if we assumed that the jury received no instruction on fraud or deceit as a theory of false imprisonment, the jury otherwise found him guilty of that offense based on at least a theory of menace, which was supported by substantial evidence.

In any event, the difference between felony and misdemeanor false imprisonment is that the latter does not require the restraint to be by violence, menace, fraud or deceit. As we next explain, the jury rejected the lesser offense, on which it was adequately instructed.

E. Misdemeanor false imprisonment

When orally instructing the jury on misdemeanor false imprisonment, the trial court’s only error was it said misdemeanor false imprisonment is a “lesser crime to the charged crime of false imprisonment by violence or menace,” instead of saying it was a lesser crime to the charged crime of false imprisonment by violence or menace, fraud or deceit. The jury otherwise received complete instruction on the lesser offense of misdemeanor false imprisonment. We fail to see how the trial court’s omission of the words fraud or deceit—which were relevant only to the greater offense—precluded the jury from considering misdemeanor false imprisonment as a lesser offense.

II. Cumulative error

Sanchez contends the cumulative error doctrine applies to his asserted claims of instructional error. Under that doctrine, the cumulative effect of several trial errors may be prejudicial even if they would not be prejudicial when considered individually. (People v. Sanchez (1995) 12 Cal.4th 1, 60, 63–64.) As we have found that the errors were harmless, we conclude that the cumulative nature of the instructional errors was similarly not prejudicial.

III. Section 654

The jury found Sanchez guilty of sexual battery by restraint of Jessica R. (counts 7, 8, 14) and of falsely imprisoning her (count 2). The jury similarly found him guilty of sexual battery by restraint of Jessica S. (counts 9, 10) and of falsely imprisoning her (count 3). The trial court sentenced Sanchez concurrently on counts 2 and 3. Sanchez now contends that the trial court should have stayed the sentences on counts 2 and 3, under section 654.

Section 654, subdivision (a), provides that an act or omission punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but not under more than one provision. The section thus bars multiple punishments for offenses arising out of a single occurrence where all were incident to an indivisible course of conduct or a single objective. (People v. Correa (2012) 54 Cal.4th 331, 335; People v. Jones (2012) 54 Cal.4th 350, 358.) Section 654 involves a two-step inquiry. (People v. Corpening (2016) 2 Cal.5th 307, 311–312.) First, we consider whether the different crimes were completed by a single physical act. (Ibid.) If so, then the defendant may not be punished more than once for that act and we need not proceed to the second inquiry, whether the course of conduct reflected a single intent and objective or multiple ones. (Ibid.) Whether section 654 applies is usually a question of fact for the trial court, and we review its findings in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)

Here, Sanchez engaged in several physical acts, including moving Jessica S. and Jessica R. to his patrol car. Therefore, we need to consider whether his course of conduct reflected a single intent and objective. He contends it did: his only intent and objective in falsely imprisoning his victims was to carry out the sexual batteries. The People counter that once Sanchez completed his sexual batteries his intent changed, his intent now was to prevent them from reporting the incidents.

The People rely on People v. Saffle (1992) 4 Cal.App.4th 434 at page 437, where the defendant sodomized the victim. When someone knocked on the door, the defendant initially would not let the victim answer it, telling her that if she told anyone he would kill her and her children. (Ibid.) The defendant was convicted of false imprisonment and of various sex offenses, and the trial court imposed consecutive sentences. Saffle found that section 654 did not apply. Once the sexual offenses were completed and the defendant was no longer interested in fulfilling a sexual objective, he was seeking to prevent the victim from reporting the crimes. (Id. at p. 440.)

People v. Saffle, supra, 4 Cal.App.4th 434 is distinguishable. There, the defendant’s distinct objective of dissuading the witnesses made the offenses divisible. (Id. at p. 440.) In contrast, Sanchez’s admonition to Jessica S. to do as she was told or she would be arrested and telling Jessica R. he would let her go if she did what he wanted and moving them to the patrol car were not separate and apart from the sexual batteries. There was no clear point in time when the batteries stopped but Sanchez continued to threaten his victims to get them to do something other than comply with his sexual demands. The imprisonments here were incidental to the sexual batteries.

DISPOSITION

The trial court is directed to modify the judgment by staying the sentences imposed on counts 2 and 3. The clerk of the superior court is directed to modify the abstract of judgment and to forward the modified abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.

NOT TO BE PUBLISHED.

DHANIDINA, J.

We concur:

LAVIN, Acting P. J.

EGERTON, J.