People v. Cruz, Jr.People v. Cruz, Jr.
- Reporters:
- , ,
- Before:
- Smith, Detjen, Franson
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.
-ooOoo-
OPINION
Daniel Blea Cruz, Jr., was convicted of three counts of committing a lewd act against a сhild under age 14 (
We agree on both points and will reverse thе 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
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 fеlt 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 hеr 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 onе 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 hеr 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 afrаid.
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 оf 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
The court sentenced Cruz as follows: On each count, Cruz received 15 years to life because of the multiple-victim special circumstance under
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.) We review jury instructions under the de novo standard. (People v. Manriquez (2005) 37 Cal.4th 547, 581.)
As a threshold matter, the People argue that Cruz forfeited this issue by failing to object to the instruction at trial. Under
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 required to, infer that he was likely to commit and did commit the crime or crimes of which he is accused. [¶] However, even though you find by [а] preponderance of the evidence that the defendant committed another sexual offense, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes you are determining. [¶] If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider along with all other evidence in determining whether the defendant has been proved guilty beyond a reasonable doubt of thе charged crimes that you are determining. [¶] You must not consider this evidence for any other purpose.”
Other instructions reiterated that the reasonable-doubt standard applied to the ultimate question of guilt.
Cruz maintains that the challenged instruction was erroneous because it told the jurors they could find charged offenses true by a preponderance of the evidence and then use those findings to infer that Cruz had a disposition to commit other charged offenses. We agree. As we will explain, the instruction was correct in stating that charged sex offenses can be used to show a propensity to commit other charged sex offenses, but incorrect in stating that a charged offense need be found true only by a preponderance of the evidence before it can be used for this purpose.
The purpose of the instruction was to allow the jury to apply
One argument made by the defendant in Villatoro was that the instruction given to the jury did not “designate clearly what standard of proof applied to the charged offenses before the jury could draw a propensity inference from them.” (Villatoro, supra, 54 Cal.4th at p. 1167.) The defendant contended the jury could have used any standard. The Suprеme Court disagreed, because the instruction given (a modified version of CALCRIM No. 1191) said, “‘[t]he People must still prove each element of every charge beyond a reasonable doubt and prove it beyond a reasonable doubt before you may consider one charge as proof of another charge.‘” (Villatoro, supra, p. 1167.) The pattern instruction, which referred only to the use of uncharged offenses to show propensity, stated that those uncharged offenses need be proved only by a preponderance of the evidence. (Id. at pp. 1167-1168.) Because the modified instruction stated instead that the reasonable-doubt standard must be applied, “there was no risk the jury would apply an impermissibly low standard of proof.” (Id. at p. 1168.)
The instruction used in the present case, by contrast, expressly stated that the preponderance standard applied to the determination of whether Cruz committed charged and uncharged offenses for the purpose of deciding whether he had a proрensity to commit sexual offenses. In this respect, the instruction followed the standard version of CALJIC No. 2.50.01. The current version of that pattern instruction, which has been updated since Villatoro was decided, reflects the Villatoro rule that charged offenses can be used to show propensity, but, unlike the instruction upheld in that case, it does not state that these offenses must be found beyond a reasonable doubt before they can be used for that purpose.2
In effect, the instruction given here told the jury it should first consider whether the offenses chаrged in counts 1, 2, and 3 had been established by a preponderance of the evidence, while holding its ultimate decision on the same offenses in suspension. Then the jury was required to decide whether the preponderance finding showed a propensity, and whether this propensity, in combination with the other evidence, proved those offenses a second time, this time beyond a reasonable doubt.
We conclude the court was incorrect to instruct the jury in this way. Villatoro did not expressly hold that currently charged offenses must be proved beyond a reasonable doubt before they can be used to show a propensity under
It would be an exaggeration to say the task required of the jury by the instruction given in this case (and by the standard version of CALJIC No. 2.50.01 when charged offenses are offered to show propensity) was logically impossible. A robot or a computer
The People argue the instruction was correct because our Supreme Court upheld CALJIC No. 2.50.01 in Reliford, supra, 29 Cal.4th at page 1012. This argument overlooks the fact that Reliford involved the use of uncharged offenses to show propensity, not charged offenses, and therefore did not address the issue presented in this case. (Id. at pp. 1011-1012.) The People also cite Villatoro, supra, 54 Cal.4th at page 1160, but fail to explain its reliance on a modification to CALCRIM No. 1191 that expressly told the jury it must find charged offenses true beyond a reasonable doubt before using them as propensity evidence. (Villatoro, supra, 54 Cal.4th at p. 1167.) Finally, the People point оut the jury was properly instructed that the charged offenses must be proved beyond a reasonable doubt before it could find Cruz guilty of them. We have already explained how the combination of that instruction with the preponderance instruction for charged offenses produced a hopeless muddle.
As our Supreme Court explained in People v. Aranda (2012) 55 Cal.4th 342, 365, an instructional error that has the effect of lowering the reasonable-doubt standard for guilt is one of the few errors deemed “structural” and therefore reversible per se. The Aranda сourt went on to hold that an erroneous reasonable-doubt instruction was not
The instruction given in this case, as we have said, presented the jury with a nearly impossible task of juggling competing standards of proof during different phases of its consideration of the same evidence. We think the ultimate effect is to lower the prosecution‘s burden of proving guilt beyond a reasonable doubt. Consequently, we find the error to be reversible per se and need not conduct a Chapman analysis.
II. Yurko error
Cruz‘s admission of his prior
On July 7, 2014, during the hearing on motions in limine, the court granted Cruz‘s motion to bifurcаte the trial and try the question of his prior convictions separately after the verdict on the current offenses. After the court advised Cruz of his right to a jury trial on the priors, Cruz personally waived that right and agreed to a court trial.
The following day, before jury selection, the parties presented to the court a stipulation in which Cruz admitted the
The court then had the following discussion with Cruz:
“[The court]: Have you had a chance to review the stipulation with your attorney?
“[Cruz]: Yes.
“[The court]: And do you understand why your attorney is proposing to stipulate to these facts?
“[Cruz]: Yes.
“[The court]: Do you also agree to the stipulation and join in it?
“[Cruz]: Yes.
“[The court]: And [defense counsel], you are confirming that your client is making a knowing, intelligent, and voluntary decision to join the stipulation.
“[Defense counsel]: Yes, sir.
“[The court]: The Court so finds. The Court accepts the stipulation.”
After the jury found Cruz guilty of the current offenses, the allegation of a prior conviction of leaving the scene of an accident was dismissed at the request of the prosecution. The court then proceeded to trial on the prior
In Boykin v. Alabama (1969) 395 U.S. 238, 242-244 and In re Tahl (1969) 1 Cal.3d 122, 131-133, the United States and California Supreme Courts held that, before accepting a plea of guilty, a trial court should explain to a defendant that he or she has a right to a triаl by jury, a right to confront witnesses, and a privilege against self-incrimination, and that the plea is a waiver of these rights. Further, the court should
The California Supreme Court recently found reversible Yurko error in People v. Cross (2015) 61 Cal.4th 164 (Cross), a case in which, as in this case, the defendant admitted a prior conviction by way of stipulation. Cross was charged under
In this case, the trial court accepted Cruz‘s stipulation without advising him of his right to confront witnesses or his privilege аgainst self-incrimination. The previous day, before any admission was in question, the court informed Cruz of his right to a jury trial on the prior and obtained his consent to have the truth of the allegation determined by the court without a jury. But the court never pointed out to Cruz that, by entering into the stipulation, he was effectively waiving any trial at all on the prior. The court also never advised Cruz of the penal consequences of his admission, which were very substantial. The difference between 45 years to life and 105 yeаrs to life was the difference between having some chance of living to be released and having no such chance. In these ways, the court failed to fulfill the requirements of Yurko.
The People maintain that the record shows Cruz‘s admission and waiver to have been voluntary and intelligent under the totality of the circumstances, but we disagree. Citing a minute order, the People say counsel told the court Cruz “had been informed of his legal rights and waived further informing of his rights” at his arraignment. The People cite no аuthority for the proposition that a vague reference to a waiver of “legal rights” at an arraignment can demonstrate a knowing and intelligent waiver of rights to having a jury trial, confronting witnesses, and remaining silent in the context of an admission of a prior conviction at trial. The record shows nothing about what rights Cruz had been informed of, what rights he waived “further informing of,” or any reason to believe this waiver was intended to extend beyond the arraignment itself.
The People next point out that the court asked Cruz “several questions” about the stipulation, elicited Cruz‘s statement that he had talked to his attorney and was joining the stipulation, and elicited from counsel a statement that Cruz joined the stipulation
The People assert that Cruz must have known of the several rights that would have been afforded him in a trial on the prior-conviction allegation bеcause, when the court found the allegation true, Cruz had just sat through the trial on the currently charged offenses. The fact that a defendant has just undergone trial at the time of admitting a prior conviction has been held to support a finding that he must have understood the rights associated with a trial. (Mosby, supra, 33 Cal.4th at p. 364.) But in this case, Cruz entered into the stipulation on which the court‘s finding was based before trial, at the time of motions in limine. He was not offered an opportunity to retract the stipulation at the end of the trial before the court made its finding.
Finally, the People argue that Cruz likely knew about his trial rights because he had prior experience with the criminal justice system. In Mosby, the Supreme Court stated that a defendant‘s criminal history is a factor in this analysis and weighed the fact that the defendant in that case had pleaded guilty to his prior offense and thus had experience with guilty pleas. (Mosby, supra, 33 Cal.4th at p. 365Cross, however, the record does not show how these convictions were obtained. (See Cross, supra, 61 Cal.4th at p. 180 [existence of prior conviction did not support inference that defendant understood rights he was giving up where record did not disclose manner in which prior conviction was obtained].) Further, they were obtained in 2003 and 2005, 11 and 9 years, respectively, before the current trial. We do not think experience so remote was likely to make Cruz aware of the rights he was giving up when he agreed to the stipulation. Further, this experience would have done nothing to inform Cruz of the penal consequences of his admission in this case. Cruz also had a juvenile record from the 1990‘s, but there is no likelihood he had current knowledge of his trial rights just because he underwent juvenile proceedings as a teenager, proceedings that did not involve the right to a jury trial.
For the above reasons, we would reverse the sentence and the finding on the prior-conviction allegation even if we were not reversing the entire judgment for the reason given in part I, above.
DISPOSITION
The judgment is reversed.
Smith, J.
WE CONCUR:
Detjen, Acting P.J.
Franson, J.