24 Cal. App. 5th 605
Cal. Ct. App. 5th2018Background
- Defendant Salvador Saavedra was convicted by a jury of multiple sexual offenses against children, including aggravated lewd acts (Pen. Code §288(b)(1)), sexual penetration/oral copulation with a child ten or younger (§288.7), forcible rape and sodomy, and related counts; a firearm use enhancement was found true as to one count.
- He was sentenced to 18 years plus 180 years to life; the appeal challenges several legal and instructional issues and the abstract of judgment.
- The trial court gave CALCRIM No. 1111 for counts 1 and 2 (aggravated lewd acts) which included the statement "It is not a defense that the child may have consented to the act."
- The trial court also gave CALCRIM No. 252 (general intent instruction) and CALCRIM No. 1128 (elements of §288.7(b) sexual penetration) creating potential conflict about whether count 11 (penetration of a child ten or younger) required specific intent.
- On appeal defendant argued (1) insufficient evidence on counts 1 and 11; (2) ineffective assistance for certain failures; (3) due process violation because Soto (2011) eliminated consent as a defense after the alleged offenses; (4) erroneous instruction treating count 11 as general intent; and (5) abstract of judgment errors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether instructing that child consent is not a defense (per CALCRIM No. 1111) violated due process because Soto changed the law after the offenses | State: Soto correctly states longstanding rule that children under 14 cannot consent; instructing accordingly was proper and not retroactive enlargement | Saavedra: At time of offenses consensus case law (e.g., Cicero) treated consent as a defense; applying Soto-based instruction was unforeseeable and retroactive | Court held no due process violation: Soto’s rule was consistent with longstanding law that children under 14 cannot consent; giving the instruction was proper. |
| Whether giving CALCRIM No. 252 (general intent) as to count 11 (sexual penetration under §288.7(b)) was erroneous and prejudicial | State: CALCRIM No. 1128 correctly defined penetration and the required purpose; any instructional conflict was harmless beyond a reasonable doubt | Saavedra: Count 11 is a specific intent crime (penetration "for the purpose of" arousal/abuse); general-intent instruction was erroneous and prejudicial | Court held error occurred but was harmless beyond a reasonable doubt because evidence overwhelmingly supported the requisite specific intent and CALCRIM No. 1128 properly set out the purpose element. |
| Sufficiency of evidence for counts 1 and 11 | State: evidence supported convictions | Saavedra: challenges insufficiency (particularly as to consent/force on count 1 and penetration on count 11) | Court rejected insufficiency claims (count 1 instruction proper re consent; count 11 evidence supported specific intent). |
| Ineffective assistance (failure to object to out-of-court statements to detective; requesting CALCRIM No. 207) | State: counsel’s choices were not prejudicial or objectively deficient | Saavedra: counsel erred and was prejudicial | Court rejected ineffective assistance claims. |
| Abstract of judgment errors and firearm enhancement discretion | State: clerical corrections needed; no remand necessary to strike firearm enhancement | Saavedra: technical errors in abstracts; sought remand on enhancement | Court ordered correction of abstract of judgment; declined remand to reconsider striking firearm enhancement. |
Key Cases Cited
- People v. Soto, 51 Cal.4th 229 (California Supreme Court) (children under 14 cannot legally consent to sexual acts; lack of consent not element of §288 offenses)
- People v. Cicero, 157 Cal.App.3d 465 (Cal. Ct. App.) (earlier decision holding consent could be a defense where no physical harm; disapproved by Soto)
- People v. ZarateCastillo, 244 Cal.App.4th 1161 (Cal. Ct. App.) (sexual penetration under §288.7(b) requires specific intent)
- People v. Ngo, 225 Cal.App.4th 1264 (Cal. Ct. App.) (discusses standards for prejudice from instructional error)
- Neder v. United States, 527 U.S. 1 (U.S. Supreme Court) (harmless-error analysis where element omitted or misstated)
- Chapman v. California, 386 U.S. 18 (U.S. Supreme Court) (harmless beyond a reasonable doubt standard)
- People v. Green, 27 Cal.3d 1 (California Supreme Court) (concurrence of act and intent under §20)