P. v. Soto 9/9/08 CA6

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: H030475

Case Date: 12/10/2008

Preview:Filed 9/9/08 P. v. Soto CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. JAIME VARGAS SOTO, Defendant and Appellant.

H030475 (Santa Clara County Super. Ct. No. EE504317)

A jury convicted defendant Jaime Vargas Soto of three counts of lewd conduct upon a child under 14 by means of force, violence, duress, menace, or fear (counts 1, 2, and 4) and one count of lewd conduct upon a child under 14 (count 3). It also found true special allegations for purposes of probation ineligibility that defendant had committed (1) counts 1, 2, and 4 by means of force, violence, duress, menace, or fear, and (2) the sex offenses against more than one victim. The trial court sentenced defendant to 12 years in prison (consecutive three-year terms). On appeal, defendant principally contends that the trial court erred by instructing the jury in the optional language of CALCRIM No. 1111 (consent is not a defense to lewd conduct upon a child under 14 by means of force, etc.). He secondarily contends that (1) the prosecutor engaged in misconduct during opening statement by referring to inadmissible admissions, (2) he received ineffective assistance of counsel because counsel failed to request a limiting instruction as to certain hearsay evidence, (3) the prosecutor engaged in several instances of misconduct during argument, (4) the trial court erred by instructing the jury in the language of CALCRIM No. 1191

(evidence of uncharged sex offense), and (5) the trial court erred by instructing the jury in the language of CALCRIM No. 362 (consciousness of guilt). We agree with defendant's principal contention. We also agree that the error requires a reversal for retrial of counts 1, 2, and 4. We address defendant's secondary contentions in the context of count 3 and reject them. BACKGROUND Count 1 Defendant, 19 years old, lived with the family of his cousin, 13-year-old C. Doe. On certain occasions in the home, defendant would kiss, rub, and "talk dirty" to C. C. believed that defendant wanted to have a sexual relationship with her. She was "grossed out" but did not tell anyone. C.'s mother kicked defendant out of the house after seeing him trying to kiss C. Six months later, C. saw defendant driving by as she was entering her school grounds. She was angry with defendant because he was secretly going out with her 13-year-old best friend, A. She motioned towards defendant so as to talk with him. Defendant drove around the corner into the school parking lot, stopped the car, exited, and met C. They talked for five minutes. In the conversation, defendant denied going out with A. The lie made C. angry. When C. tried to leave, defendant grabbed her arms to stop her. At some point, C. left for her class. The school principal, however, summoned her to his office because he had heard from his secretary that C. had been with a man in the parking lot. In the office, C. admitted being with "a friend" but did not reveal defendant's name. She told the principal either that defendant had kissed her or that they had kissed previously. The principal told her that he would telephone her mother. He called C.'s mother and learned defendant's identity. When C. left the office, she used a cell phone and told defendant that the principal had been asking about him. Defendant told C. not to reveal his name. A police officer arrived at the school, and the principal summoned C. from class to speak to the officer about the incident. C. eventually revealed to the officer defendant's name, phone number, and workplace. She 2

also told the officer that defendant had grabbed, hugged, and French kissed her while she tried to push herself away. A couple of days later, C. told another officer the same thing, adding that defendant had rubbed her thigh and she could feel that his penis was hard as he was holding himself against her. At trial, C. testified that she had lied to the officers because she was angry at defendant for ignoring her and paying attention to A.; she denied that "any of those things [had] happen[ed]"; she added that she was worried about what was going to happen to defendant because she still cared about him as a friend. Count 2 When talking to the second officer, C. described an incident that had occurred a week previously. She related that, when defendant was driving her to school, he stopped the car, "put the seat down," kissed her, got on top of her, "humped" her, and locked the door when she tried to get out. At trial, C. testified that she had lied to the officer because she was angry at defendant. She also testified that the seats in defendant's car did not recline. Count 3 When defendant was living with C.'s family, he met C.'s friend and neighbor, 11year-old R. Doe. At some point, R. told C. that she thought defendant was nice and gave C. her phone number so as to give to defendant. One evening, R. entered the apartment laundry room. Defendant was there. They talked. Defendant then hugged and kissed R. He took her hand and placed it between his legs. He told her that he wanted to have sex with her. R. pushed away from defendant and told him that she did not want to do that. Later, defendant telephoned R. and told her that he wanted to have sex with her. Count 4 When defendant was living with C.'s family, he telephoned R. and told her that C. wished to talk with her. R. went to C.'s apartment but only defendant was present. After the two talked in a bedroom, defendant played a movie that displayed two women kissing. R. asked defendant to turn off the movie. After defendant did so, he produced a 3

condom and told R. that he wanted to have sex with her. R. declined and told defendant to throw the condom in the trash. Defendant did so. R. started to leave and tripped onto the bed. She either fell on defendant or defendant got on top of her. Defendant hugged R., and R. hugged defendant. R. got up to leave but tripped again onto the bed. Defendant pulled R. and hugged and kissed her. He was not holding onto her hard. At some point, he tried to touch R. between her legs but R. grabbed his hands so he would not grab her. He grabbed R.'s hand and put it between his legs. He took off his pants to his boxer shorts after R. declined to keep her hand between his legs. R. told defendant that she had to leave because his aunt and her mother might come home. She did not tell defendant that she did not want to be "doing those things" because she was afraid defendant would get upset and do something to her another time. R. left the apartment after spending an hour and a half inside. Later, R. told C. that she had had sex with defendant. But R. testified that what she had told C. was untrue. She explained that she had so told C. because she was upset. CALCRIM NO. 1111 In discussing the elements of counts 1, 2, and 4 during her argument to the jury, the prosecutor explained as to force, violence, duress, menace, or fear that "You don't have to find all of them, just one of them is enough. It's also enough if some jurors find force and some jurors find duress, but you all unanimously agree that it was accomplished [by one or the other]." She continued by stating the following: "Consent is not a defense. It is not a defense that one or both of the girls wanted to do it or wanted to be with the defendant when this happened. Because he's the adult in the equation." As to the facts of count 1, the prosecutor argued that defendant had committed the school-yard incident by force and duress. As to force, she urged that defendant had grabbed C. as C. tried to get away. As to duress, she stressed that defendant had been in a position of trust that he abused by threatening to tell C.'s mother that C. had a boyfriend unless C. kissed him, showering C. with attention and gifts, frightening C. by throwing 4

rocks at C.'s window in an effort to convince C. to let him inside the home after he had moved. As to the facts of count 2, the prosecutor argued that defendant had committed the car incident by force and duress. As to force, she urged that defendant had climbed on top of C. and prevented C. from exiting by locking the doors. As to duress, she relied on the "same factors that applied in Count One." As to the facts of count 4, the prosecutor argued that defendant had committed the apartment incident by force and duress. As to force, she pointed out that defendant held R. and pulled R. as she got up to leave. As to duress, she stressed that defendant again used flattery and a position of trust to cultivate a relationship with R. As to the special allegation regarding force, etc., she stated: "And the force or fear allegation is just a repetition of the same definitions that are in Count One, Two and Four. And, again, that's the force or fear or duress or menace or threat." Defendant argued that, as to C., "there was no force, no threats, no duress." He explained that C.'s testimony about the school-yard incident was that he merely had grabbed her. And he denied that he was cultivating a relationship with C. given that the two were relatives. But he essentially urged that C. should not be believed because she had told inconsistent stories and the police did not verify the stories she had told them by, for example, examining his car to see if the seat reclined. He discredited C.'s statements that she was scared by pointing out that she was the one who had motioned for defendant to stop in the school yard. He urged: "She is the one who told him to go around, around the building. She wasn't scared. And she wasn't scared because this didn't happen." Defendant argued as to R.: "No force. No duress. No threat. No menace. No fear. None of it was there. She tripped on a wire, a cable." He discredited R.'s statements that she was scared by pointing out that she had spent an hour and a half with him and had hugged him as she began to leave. The trial court instructed the jury in the language of CALCRIM No. 1111 as follows: "To prove that the defendant is guilty of [counts 1, 2, and 4], the People must 5

prove that: [

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