People v. Canales

1

THE PEOPLE, Plaintiff and Respondent, v. SANTIAGO GONZALO CANALES, Defendant and Appellant.

B328388

California Court of Appeals, Second District, Eighth Division

July 9, 2024

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA474486, James R. Dabney, Judge. Convictions affirmed sentence vacated, and remanded for resentencing.

George Schraer, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Wyatt E. Bloomfield, Supervising Deputy Attorney General, and Stefanie Yee, Deputy Attorney General for Plaintiff and Respondent.

WILEY J.

Santiago Gonzalo Canales appeals his convictions for lewd acts and for continuous sexual abuse of children. (Pen. Code, §§ 288, 288.5.) All code citations are to the Penal Code.

Canales challenges two different jury instructions.

The first is CALCRIM No. 1120. Canales argues this instruction did not identify the correct mental states for section 288.5's offense of continuous sexual abuse. We construe this somewhat complex statute according to a venerable canon of statutory interpretation: the presumption of mandatory culpability. This canon validates CALCRIM No. 1120, which stated the statute's required mental states in a legally acceptable manner.

Canales's second challenge concerns CALCRIM No. 252. We assume this instruction, as given, was error, but hold the error was harmless.

Canales forfeited a third challenge, but, on his fourth point, we agree with both parties: Canales must be resentenced. We remand for this purpose.

I

Canales sexually abused his stepdaughter and his niece for over a decade. Both were under the age of 14 during the abuse. Canales touched his niece in inappropriate ways but did not penetrate her vagina. He penetrated his stepdaughter's vagina with his penis and fingers and touched her in other inappropriate ways.

A

At trial, Canales's niece, his stepdaughter, and Canales himself testified.

The niece, born December 23, 2001, testified Canales sexually molested her from ages seven through 13. Canales first asked her to go upstairs, saying he had something to give her. The niece recalled she was seven but could not remember the exact date. This placed the event after her seventh birthday, which was December 23, 2008, and before her eighth birthday a year later. These dates will assume significance.

Upstairs in a bedroom, "it started with just him caressing my body." Canales kept telling her it was okay. Two days later he caressed her chest and back and gave her two dollars.

From then on, Canales continued molesting his niece until she was 13. Canales touched the skin of her vagina, thighs, back, and breasts. He moved his hand when he touched her vagina and touched her back with his penis. When he was done, Canales usually gave her money.

Canales touched her breasts almost every time he saw her, which was about twice a week. He rubbed her outer and inner thighs "[a]ll the time." Canales touched her vagina eight to ten times.

"[A]s I grew older, I felt more uncomfortable with what he was doing." She told him to stop, and he told her it was okay.

The stepdaughter, born in 1991, testified she was about 11 when Canales began molesting her. Canales began his abuse of his stepdaughter in 2002.

Canales touched his stepdaughter's vagina under her underwear put his fingers inside her vagina, and moved them around. Canales told her that it was okay, but that she should not tell her mother. Canales began penetrating his stepdaughter's vagina with his penis. When she was 12 or 13, this happened about once a month.

When the stepdaughter turned 14, Canales continued his abuse. The prosecution did not charge Canales with abusing his stepdaughter after she turned 14, but she testified he began orally copulating her at that point. He did this 12 to 15 times. He continued to abuse her sexually until she was almost 16. He gave her money afterwards and told her to hide it. Sometimes he would leave the money in the bathroom after he washed up. She testified, "I felt like a prostitute."

Canales claimed he never did anything sexual with either girl. He denied taking his niece to a room on the second floor and denied touching her inappropriately. He never molested his stepdaughter, never touched her inappropriately, and never had intercourse with her.

B

The amended information charged Canales with four counts.

1. A lewd act (§ 288, subd. (a)) on his niece during the year following December 23, 2008 (count 1). This was when she was seven years old.

2. Continuous sexual abuse of a child (§ 288.5, subd. (a))-his niece-between 2009 and 2013 (count 2).

3. A lewd act (§ 288, subd. (a)) on his niece during the two years following December 23, 2013 (count 3). This was when the niece was 12 or 13 years of age.

4. Continuous sexual abuse (§ 288.5, subd. (a)) of his stepdaughter between 2002 and 2005 (count 4). The

stepdaughter was 11 to 13 years old from 2002 to 2005.

Counts two and four charged violations of the statute prohibiting continuous sexual abuse of a child. That statute is the focus of Canales's appeal.

C

The trial lasted eight days.

During closing argument, the prosecution urged jurors to believe the niece, the stepdaughter, and the other prosecution witnesses.

Canales's closing argument was "it didn't happen." His attorney contended the prosecution witnesses were inconsistent and unreliable and had incentives to lie. "[W]ithin this family, there's a lot of bad blood." The defense argued the prosecution's version of events did not make sense, which created reasonable doubt.

Jurors began deliberating at 2:47 p.m. on the last day of trial. About an hour later, they convicted Canales on all counts and found the multiple victims allegations true. The court sentenced Canales to 60 years to life in prison, consisting of four consecutive sentences of 15 years to life.

II

Canales makes four arguments. Two lack merit, the third is forfeited and the fourth is correct. Canales's first two arguments are about, respectively, CALCRIM No. 1120 and CALCRIM No. 252.

Canales's first argument is about CALCRIM No. 1120. He maintains this jury instruction should have included a heightened mental state requirement for the element of "substantial sexual conduct," which is a part of section 288.5's offense of continuous sexual abuse of a child. The presumption of mandatory culpability shows Canales's proposal misinterprets section 288.5. This claim fails.

Canales's second argument is that CALCRIM No. 252 misapplied the terms "general intent" and "specific intent." We assume this instruction indeed did err, but we hold the error was harmless.

Canales forfeited his third argument.

Canales's fourth argument is about his sentencing. The prosecution agrees with Canales on this point, and so do we. We remand for resentencing.

A

We sketch pertinent law. When construing statutes and reviewing challenges to jury instructions, our review is independent. (E.g., People v. Thomas (2023) 14 Cal.5th 327, 382.) 1

A decision from 1866 instructs us that "to constitute what the law deems a crime there must concur both an evil act and an evil intent. Actus non facit reum nisi mens sit rea." (People v. Harris (1866) 29 Cal.678 681 (Harris).) This italicized phrase means an act does not make one guilty unless one's mind is guilty. (LaFave, Modern Criminal Law: Cases, Comments and Questions (4th ed. 2006) p. 111.) An alternative translation is "[a]n act does not constitute a crime unless there is criminal intent." (Scalia & Garner, Reading Law: The Interpretation of Legal Texts (2012) p. 303 (Reading Law).)

In 1872, California enacted section 20, which provides that, for every crime, there must exist a union, or joint operation, of act and intent, or criminal negligence.

The 1866 Harris decision and the 1872 statute express the "ancient requirement of a culpable state of mind." (Morissette v. United States (1952) 342 U.S. 246, 250 (Morissette).)

The culpability requirement is general in Anglo-American criminal law.

"The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.... Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a 'vicious will.' . . . Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil." (Morissette, supra, 342 U.S. at pp. 250-252, italics added.)

Mens rea is profoundly significant, as this case illustrates. Consider the act of touching a child. Parents, teachers, and others touch youngsters every day in socially accepted ways. But to touch a child with the intent of creating sexual arousal is a serious crime. (People v. Martinez (1995) 11 Cal.4th 434, 442 ["any touching" of an underage child committed with the intent to sexually arouse either the defendant or the child is a felony].)

The mental state with which an act is done can make a world of difference.

The pervasiveness of the requirement of an "evil-meaning" mind means that, even when criminal statutes are written to include no mens rea requirement, "courts assumed that the omission did not signify disapproval of the principle but merely recognized that...