Filed 8/26/13 P. v. Salazar CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G047211
v. (Super. Ct. No. 08NF1236)
VICTOR SALAZAR, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Richard
M. King, Judge. Affirmed in part, reversed in part and remanded for resentencing.
Susan S. Bauguess, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia and
Elizabeth M. Carino, Deputy Attorney General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Victor Salazar of four counts of lewd acts on a
child 15 years old and at least 10 years younger than the defendant (Pen. Code § 288,
1
subd. (c)(1)), and two counts of misdemeanor sexual battery (§ 243.4, subd. (e)(1)). The
court sentenced defendant to a state prison term of four years, comprised of the
following: The midterm of two years on the first lewd conduct count, one-third the
midterm of eight months consecutively on each of the other three lewd conduct counts.
On the misdemeanor counts, the court imposed a six month jail term on the first sexual
battery count to run consecutively to the first lewd conduct count, and a six month jail
term on the second sexual battery count to run concurrently to the first lewd conduct
count. The misdemeanor sexual battery counts were ordered to be served in any penal
institution.
After the prosecution rested, defendant filed a motion under section 1118.1
for acquittal (1118.1 motion) of the four counts of lewd acts, claiming the People had not
proved the defendant was at least 10 years older than the victims. Indeed, the prosecutor
never submitted evidence of the defendant‘s age. The court denied the motion on the
ground the jury could judge from defendant‘s appearance that defendant was at least 10
years older than the victims. Defendant then testified during the defense, and the
prosecutor elicited defendant‘s age on cross-examination. Defendant was at least 10
years older than the victims, but just barely.
Defendant claims on appeal the 1118.1 motion should have been granted
because the defendant‘s appearance was not substantial evidence he was at least 10 years
older than the victims. We agree. Evidence of defendant‘s age adduced during the
defense case cannot cure the error, and thus reversal of the lewd-acts counts is required.
Defendant also contends there is no substantial evidence to support the sexual battery
counts. There, we disagree and affirm the judgment as to the sexual battery counts. We
1
All statutory references are to the Penal Code.
2
will remand for resentencing, and thus defendant‘s argument that he should have been
granted probation is moot.
FACTS
The prosecution presented the following evidence in its case-in-chief.
Defendant was a case manager in the Unaccompanied Children‘s Program
at Florence Crittenton Services (Crittenton). When children cross the border illegally
without a parent or guardian and are taken into custody, they are turned over to U.S.
Immigration and Customs Enforcement (ICE), which in turn delivers the children to an
Unaccompanied Children‘s Program. The Unaccompanied Children‘s Program tries to
either reunify the child with a family member or obtain foster placement. Each child at
Crittenton has a case manager and therapist, and they receive medical services and
schooling.
Defendant was the case manager for the three alleged victims in this case.
As case manager, he was responsible for working with the individual children in attempts
to either reunite them with their family, return them to their country of origin, or assist
their placement into foster care. The program director at Crittendon had a good working
relationship with defendant and thought of him as a good employee with no problems or
complaints.
Each child is required to have two 10-minute calls per week with a family
member. These calls usually are made either in the case manager‘s office or in the
housing unit. When these calls occurred in a case manager‘s office, the door would
generally be closed.
There are three alleged victims in this case. Victim No. 1 was frequently
getting in trouble at school. The program director described him as a ―volatile kid‖ who
had a troubled background and had lived on the streets. Victim No. 1 was 15 years old
the entire time he was at Crittenton. Victim No. 1 would meet with defendant in
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defendant‘s office at least once a week. During such meetings defendant‘s office door
would be closed. On approximately five occasions defendant touched Victim No. 1‘s
upper thighs, approximately where his pockets were, and on one occasion touched Victim
No. 1‘s zipper as if to open it, and rubbed his penis over his shorts. Victim No. 1 did not
like the touching. He feared that if he divulged the touching to others, defendant may not
find him a placement outside the shelter or may send him back to his home country of
Honduras. Defendant, however, never threatened Victim No. 1 that if he told anyone of
the touching there would be negative repercussions. Based on the above conduct, the
People charged defendant with two counts of lewd acts on a 15-year-old child (counts 1
& 2). (Pen. Code, § 288, subd. (c)(1).)
Victim No. 2 would visit defendant‘s office to discuss his case and would
also make phone calls home from defendant‘s office. On more than 10 occasions while
Victim No. 2 was talking on the telephone defendant would reach under Victim No. 2‘s
shorts and rub his leg beginning from the knee and moving up towards the penis. On
multiple occasions he touched Victim No. 2‘s penis. This scared Victim No. 2 and made
him uncomfortable. Victim No. 2 would try to move defendant‘s hand. Again, however,
defendant never threatened Victim No. 2 to keep him quiet. Victim No. 2 was 15 years
old during his time at Crittenton. Based on the above conduct, the People charged
defendant with two counts of lewd acts on a 15 year old (counts 3 & 4). (Pen. Code,
§ 288, subd. (c)(1).)
Victim No. 3 would see defendant at least twice a week and speak with him
in defendant‘s office. Victim No. 3‘s calls to family members usually occurred in
defendant‘s office. Defendant was present for those calls. Victim No. 3 would call his
mother, and the calls were important to him. During these phone calls defendant would
sometimes put his hand under Victim No. 3‘s pants and touch his penis. This occurred
between five and 10 times. Victim No. 3 did not want defendant to touch him, and on
occasions tried to move defendant‘s hand away, but was generally too depressed to stop
4
defendant. Victim No. 3 understood defendant was the one with the power to decide his
fate of either staying in the country or being sent back to Guatemala. Victim No. 3 feared
being sent back to Guatemala. Defendant, however, never threatened Victim No. 3 with
any repercussions should he divulge what happened. Defendant tried to help Victim No.
3 and was nice to him most of the time. Victim No. 3 was 16 years old at the time of the
touching. Based on the above conduct the People charged defendant with two counts of
misdemeanor sexual battery (counts 5 & 6). (Pen. Code, § 243.4, subd. (e)(1).)
Having presented the above evidence, the People rested.
The defense moved to acquit as to the four lewd act counts, arguing the
prosecution had not offered any evidence of defendant‘s age to prove he was at least 10
years older than the victims (an element of the charged offense).
The court denied the motion, stating, ―[T]he jurors have seen Mr. Salazar. I
mean, I‘ve seen Mr. Salazar. It is so apparent to me that he is ten years older than the
three minors who testified. I mean, it‘s just apparent to me. Now, that‘s not on the
record, and for anyone reviewing this, it is evidence because the jurors have seen Mr.
Salazar and they obviously have the date of birth of the alleged victims. But, you know,
his physical appearance, it‘s so apparent to me. Now, I don‘t know how else to describe
his physical appearance on the record other than he looks to me to be ten years at least
and even more than ten years older than those who testified. That plus the testimony of
[2]
the lady who did talk about how old he was when he started working there, and there is
substantial evidence to support that element.‖
The court then gave the prosecutor an opportunity to further buttress the
record. The prosecutor stated, ―Just to supplement our record, it was an issue that came
to my attention almost immediately after I rested. I agree with the court‘s analysis, but in
my own mind, I recognized that I had not yet introduced Mr. Salazar‘s date of birth. And
2
There is no such testimony in the record.
5
I brought that issue to [defense counsel‘s] attention, and at that point in time, proposed
several possibilities, one of which would be the people reopening, asking the court to take
judicial notice of the defendant‘s date of birth which is on the information. It was also on
the felony complaint. He was arraigned on that document — on both documents, and it is
standard practice for the court at arraignment to make inquiry as to whether or not the
information is correct in terms of the name and date of birth. I also have Mr. Salazar‘s
California D.M.V. — certified copy of that document which does contain his photograph
and his date of birth.‖ The court then asked, ―[A]re you asking the court for you to
reopen?‖ The prosecutor responded, ―The information I have is that Mr. Salazar plans to
testify this morning. Given the court‘s observations, the court‘s tentative, and the fact
that Mr. Salazar has stated that he will be testifying, I don‘t believe the people need to
reopen at this time.‖
The defense attorney then commented, ―My intention was to make a record
because I do believe ultimately once Mr. Salazar testifies, [the prosecutor] will elicit a
date of birth from him and this issue will become a nonissue.‖
The defense case consisted of defendant‘s testimony. Defendant generally
denied the allegations by the victims, claiming the only touching would have been taps
on the leg or shoulder to indicate it was time to end the phone call, or a hug if one of the
minors was upset. The prosecutor‘s first questions on cross-examination were, ―Mr.
Salazar, how old are you? [¶] A. Thirty years old. [¶] Q. When is your birthday? [¶]
A. May 4th, 1981.‖
The jury returned a verdict of guilty on two counts of lewd acts against
Victim No. 1, two counts of lewd acts against Victim No. 2, and two counts of sexual
battery against Victim No. 3. The court sentenced defendant to an aggregate term of four
years six months. Defendant timely appealed.
6
DISCUSSION
Defendant contends the court erroneously denied his 1118.1 motion. He
contends there was no substantial evidence proving defendant was at least 10 years older
than the victims and that the court erred by finding the defendant‘s appearance was
substantial evidence. We agree.
Standard of Review
―In ruling on a motion for judgment of acquittal pursuant to section 1118.1,
a trial court applies the same standard an appellate court applies in reviewing the
sufficiency of the evidence to support a conviction, that is, ‗―whether from the evidence,
including all reasonable inferences to be drawn therefrom, there is any substantial
evidence of the existence of each element of the offense charged.‖ [Citations.]‘
[Citation.] ‗Where the section 1118.1 motion is made at the close of the prosecution‘s
case-in-chief, the sufficiency of the evidence is tested as it stood at that point.‘‖ (People
v. Cole (2004) 33 Cal.4th 1158, 1212-1213.)
The Defendant’s Appearance Was Not Substantial Evidence of His Age
Defendant‘s age was a required element of the lewd acts charges. Section
288, subdivision (a), states, ―[A]ny person who willfully and lewdly commits any lewd or
lascivious act . . . upon or with the body, or any part or member thereof, of a child who is
under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust,
passions, or sexual desires of that person or the child, is guilty of a felony . . . .‖ Section
288, subdivision (c)(1) states, ―Any person who commits an act described in subdivision
(a) with the intent described in that subdivision, and the victim is a child of 14 or 15
years, and that person is at least 10 years older than the child, is guilty of a public
offense . . . . In determining whether the person is at least 10 years older than the child,
7
the difference in age shall be measured from the birth date of the person to the birth date
of the child.‖ Here, Victim No. 1 and Victim No. 2 were 15 years old at the time of the
abuse, and thus under section 288, subdivision (c)(1) the People were required to prove
defendant was at least 10 years older than the victims.
Under the circumstances of this case, the defendant‘s appearance was not
substantial evidence of his age. The jury would be speculating in trying to determine
defendant‘s age based on his appearance. We are in the somewhat unusual position of
knowing defendant‘s exact age despite the lack of evidence in the prosecution‘s case-in-
chief. He was 11 years 4 months older than Victim No. 1, and 10 years 10 months older
than Victim No. 2. To affirm, we would have to conclude a jury could determine, beyond
a reasonable doubt, based on appearance alone, the difference between someone who
looked 9, 10, or 11 years older than the victims. A jury cannot reliably determine a
person‘s age, based on appearance alone, with that degree of specificity. (People v.
Bassett (1968) 69 Cal.2d 122, 139 [substantial evidence ―‗cannot be deemed synonymous
with ―any‖ evidence. It must be reasonable in nature, credible, and of solid value; it must
actually be ―substantial‖ proof of the essentials which the law requires in a particular
case.‘‖].)
We would face a different situation if the defendant were substantially older
than the victims. In that regard this case is distinguishable from People v. Montalvo
(1971) 4 Cal.3d 328 (Montalvo). There defendant was charged with furnishing heroin to
a minor. (Id. at p. 330.) One of the elements the People had to prove was that defendant
was 21 years or older. (Id. at p. 333.) The People put on no evidence of the defendant‘s
age, did not allege in the information that defendant was an adult, and the jury was not
told the People had the burden to establish defendant was an adult. (Id. at pp. 330, 332.)
The court reversed defendant‘s conviction based on the absence of an allegation in the
information that defendant was an adult and lack of jury instruction concerning
defendant‘s majority. (Id. at p. 330.)
8
The court found, however, that in appropriate cases the mere appearance of
the defendant could be independent evidence that the defendant was an adult: ―Our
holding should not be interpreted so as to require the prosecution in every instance to
prove the actual age of the defendant. There will be occasions when his physical
appearance will be such that the jury could not entertain a reasonable doubt that he was
over the age of 21 years. ‗Experience teaches us that corporal appearances are
approximately an index of the age of their bearer, particularly for the marked extremes of
old age and youth. In every case such evidence should be accepted and weighed for what
it may be in each case worth. In particular, the outward physical appearance of an
alleged minor may be considered in judging of his age; a contrary rule would for such an
inference be pedantically over-cautious.‘ [Citations.] Moreover, it ‗is settled that a view
of the scene by the trial judge is independent evidence on which a finding may be made
and sustained [citations].‘ [Citation.] Similarly, a view of the defendant by the trier of
fact in an appropriate case may be sufficient to support a finding that the defendant is an
adult.‖ (Montalvo, supra, 4 Cal.3d at p. 335.)
We have no qualms with that rule. ―[P]articularly for the marked extremes
of old age and youth‖ (Montalvo, supra, 4 Cal.3d at p. 335), outward appearance may
indeed constitute independent evidence. As the Montalvo court noted, however,
appearance is only an approximate indicator of age. Where, as here, the jury must make
a precise determination of a close call, appearance alone provides only a speculative basis
to determine beyond a reasonable doubt that defendant is at least 10 years older than the
victims. Because the prosecution offered no substantial evidence of defendant‘s age, the
court erred in denying defendant‘s 1118.1 motion.
Evidence Adduced During the Defense Case Did Not Cure the Error
As noted above, the evidence lacking in the prosecution‘s case-in-chief was
brought out during the defense case when the prosecutor elicited defendant‘s age during
9
cross-examination of the defendant. Did this evidence cure, or perhaps render harmless,
the court‘s error in denying the 1118.1 motion? No.
We are guided by our high court‘s decision in People v. Belton (1979) 23
Cal.3d 516 (Belton). There, defendant was charged with violating section 246
(discharging a firearm at an inhabited dwelling house). In a court trial, the only evidence
connecting defendant to the crime was the uncorroborated testimony of defendant‘s 16-
year-old stepson, who was an alleged accomplice to the crime. After the prosecution
rested, defendant moved for acquittal without specifying the grounds for the motion. The
court denied the motion, and ultimately found defendant guilty as charged. (Belton, at p.
519.) On appeal the defendant argued the motion for acquittal should have been granted
because the only testimony linking defendant to the crime was uncorroborated
accomplice testimony. (Id. at pp. 519-520; see § 1111 [conviction cannot be based on
uncorroborated accomplice testimony].) The People contended the motion was properly
denied because defendant failed to specify the grounds for the motion at trial. (Belton, at
p. 521.)
The Belton court held that a defendant need not specify the grounds for the
motion at trial. In doing so, the high court reviewed certain basic principles of the
3
criminal justice system and the history of sections 1118 and 1118.1. ―Two of the most
basic premises of our criminal justice system‖ are ―the presumption of innocence and the
duty of the prosecution to prove guilt beyond a reasonable doubt.‖ (Belton, supra, 23
Cal.3d at p. 520.) ―Implicit in these principles is the duty of the prosecution to prove
3
Section 1118 governs acquittal motions in bench trials. Section 1118.1
governs acquittal motions in jury trials. Section 1118 provides for the making of the
motion at the close of the prosecution‘s evidence and the court may weigh the evidence
then before it. Section 1118.1 provides for the making of the motion after either the close
of either the prosecution‘s evidence or the defense evidence and before submission of the
case to the jury, and the court must determine whether the evidence then before it is
insufficient to sustain a conviction.
10
each element of the crime charged. ‗One of the greatest safeguards for the individual
under our system of criminal justice is the requirement that the prosecution must
establish a prima facie case by its own evidence before the defendant may be put to his
defense.‘‖ (Ibid.) The court then noted that prior to the passage of sections 1118 and
1118.1, a defendant had no procedural mechanism to move for acquittal at the close of
the prosecution‘s case. This put a defendant in the dilemma of either ―(1) to rest at the
close of the prosecution‘s case, gambling that the court shares his opinion, or (2) to
proceed with presenting his defense.‖ (Belton, at p. 521.) Sections 1118 and 1118.1
were meant to avoid that dilemma.
The Belton court then concluded that to require defendant to specify the
grounds of a motion for acquittal would put defendant in a similar dilemma: ―In effect, a
defendant would be forced to choose between: (1) specifying the defects in the
prosecution‘s case, thereby affording the prosecutor an opportunity to seek to reopen the
case in order to cure such defects; (2) making no motion and resting, thereby sacrificing
his right to present a defense for fear that later evidence might cure the defects in the
prosecution‘s case; or (3) making no motion, thereby waiving the right to challenge the
prosecution‘s case-in-chief, and proceeding to present a defense. Forcing a defendant to
elect among these alternatives would deny him the intended protection of the section.
Further, to require a defendant to state specific grounds in support of the motion for
acquittal would place the burden upon him to point out to the prosecutor, as well as to the
court, the gaps in the prosecution‘s case. Such a requirement would come perilously
close to compelling a defendant to aid in his own prosecution and would lessen the
prosecutor‘s burden to prove each and every element of the case beyond a reasonable
doubt.‖ (Belton, supra, 23 Cal.3d at pp. 521-522.)
If we were to hold evidence adduced during the defense case could cure an
erroneous denial of a section 1118.1 motion, we would put defendants in exactly the
dilemma section 1118.1 was meant to avoid: either immediately resting and gambling
11
that a Court of Appeal will see it defendant‘s way, or presenting evidence at the risk of
―curing‖ the erroneous denial of the section 1118.1 motion. This would create an
unacceptable risk of innocent people being convicted: if the defendant chose to rest on
the legal argument, the jury may convict without the benefit of defense evidence that
could have exculpated the defendant. Further, the Belton court emphasized the
fundamental importance to our criminal justice system of the principle that ―‗the
prosecution must establish a prima facie case by its own evidence before the defendant
may be put to his defense.‘‖ (Belton, supra, 23 Cal.3d at p. 520.) We cannot simply give
the prosecution a pass on that requirement.4
Directly on point with our case is People v. Velazquez (2011) 201
Cal.App.4th 219 where the court, relying on Belton, reached the same result we reach
here. The defendant in Velazquez was charged with multiple counts of criminal threats
(§ 422) and dissuading a victim or witness from prosecuting a crime (§ 136.1, subd.
(b)(2)) (Velazquez, at p. 223). At trial, the victim could not be located to testify, and the
prosecution rested after only putting on testimony from certain officers. (Id. at pp. 225-
226.) At the close of defendant‘s case, the court asked the prosecution whether it had any
rebuttal. The prosecution announced it had located the victim and a detective had been
dispatched to pick up the victim. Before the rebuttal witness was called to testify,
defendant moved for acquittal under section 1118.1 based upon the evidence then before
the court. The trial court denied the motion, finding the officers‘ testimony was sufficient
evidence. (Velazquez, at p. 227.) The victim thereafter testified during the prosecution‘s
rebuttal. (Id. at pp. 226-227.) The jury convicted the defendant on all counts. (Id. at p.
228.)
4 Notably, although the Belton court did not address the precise issue we
face, in Belton the prosecution introduced evidence corroborating the accomplice‘s
testimony during its rebuttal case, yet the Belton court did not hold that such evidence
cured the erroneous denial of the motion to acquit. (Belton, supra, 23 Cal.3d at p. 543
(dis. opn. of Clark, J.).)
12
The Velazquez court reversed the conviction (Velazquez, supra, 201
Cal.App.4th at p. 232), finding that the evidence ―before the court at the time the motion
was made‖ was insufficient to support the conviction (Id. at pp. 230-231.) It further held
the testimony elicited during the rebuttal case did not cure the error: ―[W]e acknowledge
that the prosecution‘s evidence in rebuttal provided the missing evidence, and thus would
support the convictions. We are compelled, however, to reverse the convictions, based
upon‖ Belton, supra, 23 Cal.3d 516. (Velazquez, at p. 231.)
Two other principles support our conclusion.
First, section 1118.1 permits a defendant to make a motion for acquittal at
the close of the prosecution‘s case and requires the court to acquit the defendant ―if the
evidence then before the court is insufficient to sustain a conviction.‖ (Italics added.) It
would do violence to the statute if, having erroneously denied a 1118.1 motion, we were
to affirm based on evidence that was not ―then before the court.‖
Second, traditional appellate principles of harmless error support reversal.
The essential question to be asked on appeal is, if the error had not occurred, might the
result have been different? (Chapman v. California (1967) 386 U.S. 18, 24 [―before a
federal constitutional error can be held harmless, the court must be able to declare a belief
that it was harmless beyond a reasonable doubt‖]; People v. Watson (1956) 46 Cal.2d
818, 836–837 [error of state law requires reversal only if it is reasonably probable the
jury would have returned a different verdict absent the error].) Here we know to a
certainty the result would have been different: if the trial court had properly acquitted
defendant, he would not have been convicted. We cannot in any sense, therefore, say the
error was harmless. Accordingly, the evidence of defendant‘s age elicited during the
defense case did not cure, or render harmless, the erroneous denial of defendant‘s 1118.1
motion.
13
Substantial Evidence Supports the Sexual Battery Verdicts
Defendant contends there is no substantial evidence to support the verdict
as to the two counts of sexual battery because there was no evidence the touching was
with the intent of arousing, appealing to or gratifying sexual desires.
―[T]he critical inquiry on review of the sufficiency of the evidence to
support a criminal conviction‖ ―is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.‖ (Jackson v. Virginia (1979) 443 U.S.
307, 318-319; see also People v. Johnson (1980) 26 Cal.3d 557, 576.) The elements of
sexual battery are: (1) The defendant touched an intimate part of Victim No. 3; (2) The
touching was done against Victim No. 3‘s will; and (3) The touching was done for the
specific purpose of sexual arousal, sexual gratification, or sexual abuse. (§ 243.4, subd.
(e)(1); see also CALCRIM No. 938.)
Here, Victim No. 3 testified that while he was on the phone defendant
would reach under his shorts and touch his penis. This occurred between five and 10
times. Victim No. 3 did not want defendant to touch him, and on occasions tried to move
defendant‘s hand away, but was generally too depressed to stop defendant.
Defendant contends this evidence is insufficient because defendant never
threatened Victim No. 3: ―It would seem probable that if appellant‘s actions were of a
sexual nature, as implied by the testimony . . . , he would have made some comment
about not speaking to others about what took place in his office, or would have implied
that their potential placement in foster care could be jeopardized, or deportation
imminent.‖ ―In light of the testimony of these three young men, it is clear the People
failed to establish appellant acted with the requisite intent and mental state.‖
We reject defendant‘s argument. Plainly the jury could infer from Victim
No. 3‘s testimony that defendant‘s touching of Victim No. 3‘s penis was sexually
motivated. Defendant apparently asks us to reassess the credibility of Victim No. 3‘s
14
testimony given the absence of any threats, but that is not our task on appeal. Our task is
to determine whether substantial evidence supports the verdict, and here it plainly does.
DISPOSITION
The judgment as to counts 1 through 4 (§ 288, subd. (c)(1)) is reversed.
The convictions on counts 5 and 6 (§ 243.4, subd. (e)(1)) are affirmed. The case is
5
remanded for resentencing as to counts 5 and 6. The trial court may consider the entire
sentencing scheme with regard to counts 5 and 6. (People v. Torres (2008) 163
Cal.App.4th 1420, 1431.)
IKOLA, J.
WE CONCUR:
O‘LEARY, P. J.
MOORE, J.
5
Because we remand for resentencing, we do not reach defendant‘s
argument that he is entitled to probation.
15