People v. Cruz

• Citation: 2 Cal.App.5th 1178,206 Cal.Rptr.3d 835
• Decision Date: 31 August 2016
• Docket Number: F069940
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Daniel Blea CRUZ, Jr., Defendant and Appellant.

2 Cal.App.5th 1178

206 Cal.Rptr.3d 835

The PEOPLE, Plaintiff and Respondent

v.Daniel Blea CRUZ, Jr., Defendant and Appellant.

F069940

Court of Appeal, Fifth District, California.

Filed August 31, 2016

Certified for Partial Publication.^*

Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

Smith

, J.

Daniel Blea Cruz, Jr., was convicted of three counts of committing a lewd act against a child under age 14 (Pen. Code, § 288, subd. (a)¹

), and sentenced to 105 years to life in prison. He argues in this appeal that the jury was given an erroneous instruction on the use of Evidence Code section 1108 evidence to show a propensity to commit sex offenses. He says the instruction had the effect of reducing the prosecution's burden of proving guilt beyond a reasonable doubt. Cruz also argues that, before accepting his admission of a prior conviction, the court failed to give him an adequate advisement of his rights, as required by In re Yurko (1974) 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561 (Yurko ).

We agree on both points and will reverse the judgment. We publish our discussion of the first point because the specific issue with the instruction appears to be novel and because a pattern instruction, CALJIC No. 2.50.01

, is affected.

FACTS AND PROCEDURAL HISTORY

Cruz was arrested after one of the victims reported abuse to her grandmother. The district attorney filed an information charging him with committing violations of section 288, subdivision (a)

, with C.H. on February 19, 2013; with L.S. on September 17–18, 2012; and with D.R. on September 16–17 2012. The information alleged that the current offenses had been committed against multiple victims. (§ 667.61, subd. (e)(4).) It also alleged that Cruz had two prior convictions: unlawful sexual intercourse with a minor (§ 261.5) and failing to stop at the scene of an accident in which someone had been injured or killed (Veh. Code, § 20001, subd. (a) ).

The three victims, D.R., L.S. and C.H., testified at trial. D.R. testified that in September of 2012, when she was 13, she was living with her grandmother in Bakersfield. Cruz was D.R.'s aunt's boyfriend. On September 17, D.R. was in her bedroom alone when Cruz entered. Cruz said he wanted the phone number of D.R.'s friend, L.S., and he would rape D.R. if she did not give it to him. He also told her to give him a hug. When he hugged her, he put his hands on her buttocks. She felt uncomfortable. At Cruz's request, D.R. called L.S. to say L.S. should come to a party at Cruz's trailer that night. L.S. said she would go.

D.R. became afraid while Cruz was in her room and she sent a text message on her iPad to her cousin, who was in the house. The message said to come upstairs because Cruz was “trying to do something” to D.R. The cousin and D.R.'s sister came in response to the message, and found D.R lying in bed with Cruz standing beside the bed. D.R. did not tell anyone but her sister and cousin of these events because she was afraid. She also asked her sister not to tell. That night, D.R. wanted to send a message to L.S. to warn her, but D.R.'s grandmother had taken her iPad away. D.R. also called L.S.'s house, but L.S. was not home.

D.R. did not talk to L.S. again until a month or two later when she saw L.S. crying at school. L.S. said she had gone to Cruz's trailer and he had raped her.

Later, D.R. told her friend C.H. what L.S. had said. C.H. revealed that Cruz had “been touching her in places she [didn't] want to be touched.” That night, D.R. told her grandmother what had happened to her, L.S., and C.H. D.R. talked to the police the next morning.

L.S. testified that one day in September 2012 when she was 12 years old, D.R. called her on the phone. D.R. proposed that L.S. sneak out that night and meet up with Cruz to drink beer and smoke marijuana. L.S. thought D.R. would be there too. Later that day, Cruz called L.S. and said he would pick her up. Around 10:00 p.m., L.S. climbed out her window and met Cruz near her house. D.R. was not with him. L.S. got in Cruz's car and he drove around for a while. Then he took her to his trailer. Inside, they went in his room and he approached her. She pushed him back, but he kissed her on her mouth, using his tongue. He also kissed her neck and stomach. He took her clothes off, kissed her breasts, and put his fingers inside her vagina. While doing these things, Cruz was “[j]acking himself off” through his underwear. Cruz and L.S. were in the trailer for a couple of hours. Then they put their clothes back on and he drove her home. She climbed in her window around 3:00 a.m. Until the police came to question her, L.S. did not tell any adults what had happened because she was afraid.

C.H. testified that in February 2013 she was 13 years old and living with her grandmother. Cruz was C.H.'s uncle. He came to the house one day when C.H. was in the kitchen and told C.H. to give him a hug. She did so, but testified she did not remember what happened next. The prosecutor showed her a police report to refresh her memory. C.H. then testified that, while hugging her, Cruz kissed her on the mouth, put his tongue in her mouth, moved his hands around her body, and tried to move her toward her bedroom. She said “no” and he walked away. After this, C.H. kept her younger brother with her when Cruz was around to avoid a repeat of his behavior, but she did not tell any adults because she was afraid.

C.H. testified that on February 19, 2013, a couple of weeks after this incident, she was sleeping in her grandmother's bedroom when Cruz woke her up. Again, she did not remember how he woke her up until after being shown the police report. Then she testified he woke her by touching her buttocks, breasts, and vagina. He began to remove his pants. C.H. pushed him away and said she was tired. Cruz went away. A couple of days later, the police questioned her about the incidents.

A parole officer testified that, from 2010 until the time of trial, Cruz was on parole as a high-risk sex offender and had a GPS unit attached to his ankle. A technician testified that data from Cruz's unit showed the unit was at D.R.'s address on September 17, 2012, from 6:29 a.m. to 8:21 a.m., 9:19 a.m. to 10:00 a.m., 1:45 p.m. to 2:33 p.m., and 3:49 p.m. to 4:39 p.m.

On the same date, Cruz's GPS device was near L.S.'s address from 10:30 to 10:34 p.m., and then at Cruz's address from 11:26 p.m. to 3:07 the following morning. At 3:14 a.m., the device went back to L.S.'s address and returned to Cruz's at 3:19 a.m.

On February 19, 2013, Cruz's GPS unit was at C.H.'s address from 1:47 p.m. to 3:00 p.m., 5:32 p.m. to 5:39 p.m., 6:00 p.m. to 6:03 p.m., and 7:08 p.m. to 7:31 p.m.

The jury found Cruz guilty of all three counts and found the multiple-victim allegation true. Based on a stipulation by Cruz, the court found true the allegation that he had a prior conviction of unlawful sexual intercourse with a minor. On the prosecution's motion, the court dismissed the allegation of a prior conviction of failing to stop at the scene of an accident.

The court sentenced Cruz as follows: On each count, Cruz received 15 years to life because of the multiple-victim special circumstance under section 667.61, subdivision (b), doubled for the prior strike under section 667, subdivision (e), plus five years under section 667, subdivision (a). The sentences were to be served consecutively. The total term imposed was 105 years to life.

DISCUSSION

I. Jury instruction error

Cruz argues that the court gave the jury an erroneous instruction regarding the use of evidence of his propensity to commit sex offenses. A trial court in a criminal case is required to give correct jury instructions on the general principles of law relevant to issues raised by the evidence. (People v. Michaels (2002) 28 Cal.4th 486, 529–530, 122 Cal.Rptr.2d 285, 49 P.3d 1032

.) We review jury instructions under the de novo standard. (People v. Manriquez (2005) 37 Cal.4th 547, 581, 36 Cal.Rptr.3d 340, 123 P.3d 614.)

As a threshold matter, the People argue that Cruz forfeited this issue by failing to object to the instruction at trial. Under section 1259, however, objection at trial is unnecessary if instructional error affected the defendant's substantial rights. It has been held that a defendant's substantial rights are affected if the instruction was reversibly erroneous. (People v. Felix (2008) 160 Cal.App.4th 849, 857, 72 Cal.Rptr.3d 947

; People v. Mitchell (2008) 164 Cal.App.4th 442, 465, 78 Cal.Rptr.3d 855.) As there is no other way of determining whether the instruction was reversibly erroneous, we will consider the merits of Cruz's contention despite the lack of objection.

The instruction given followed CALJIC No. 2.50.01

and stated:

“In determining whether defendant has been proved guilty of any sexual crime of which he is charged, you should consider all relevant evidence, including whether the defendant committed any other sexual crimes, whether charged or uncharged, about which evidence has been received. The crimes charged in counts 1, 2, and 3 may be considered by you in that regard. [¶] ... [¶]

“ ‘Sexual offense’ means a crime under the laws of a state or of the United States that involves any of the following: [A]ny conduct made criminal by Penal Code Sections 261.5 Subdivision (d)

, 12022.7 Subdivision (a), and 288 Subdivision (a). [¶] The elements of Penal Code Section 288 Subdivision (a) are set forth elsewhere in these instructions.

“If you find, by a preponderance of the evidence, that the defendant committed any such other sexual offense you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. [¶] If you find that the defendant had this disposition you may, but are not...