Filed 7/13/15 P. v. Neaves CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)


THE PEOPLE,                                                                                  C071676

                   Plaintiff and Respondent,                                     (Super. Ct. No. 11F06194)

         v.

LORENZO EDWARDO NEAVES,

                   Defendant and Appellant.




         A jury convicted defendant Lorenzo Edwardo Neaves of oral copulation with
T.M., a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b)--count one),1 but
acquitted him of both digital penetration of T.M. (§ 288.7, subd. (b)--count two) and
touching T.M.’s vagina (§ 288, subd. (a)--count three). In a trial by court, the court found
defendant had a prior strike conviction (first degree burglary). Defendant was sentenced
to 30 years to life.




1   Undesignated statutory references are to the Penal Code.

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       On appeal, defendant contends the court erred by (1) instructing the jury, in
accordance with People v. Moore (2002) 96 Cal.App.4th 1105 (Moore), to continue
deliberating after it declared itself deadlocked, (2) admitting evidence of uncharged
sexual offenses, and (3) miscalculating his presentence custody credits by two days. We
reject defendant’s first two contentions, but agree with his third claim.
                                    Statement of Facts
                                    Prosecution’s Case
Charged Acts
       In July 2011, Ty.L. was living in an apartment with her nine-year-old daughter
T.M., her two sons aged four and five, a female roommate, and defendant who was her
boyfriend. On July 7, several people were partying at the apartment because Ty.L. was
moving out. Catherina Wilson and her boyfriend, Charles Fisher, were at the apartment
and were intending to stay the night. Ty.L. told Wilson that when she and Fisher wanted
to lie down she could take T.M. off of the bed and put her on the couch in the living
room. Around 10:00 or 11:00 p.m., Wilson put T.M. on the couch.
       T.M. testified that while she was sleeping on the couch, she was awakened by
defendant kneeling beside her and taking off her pajamas, which consisted of a
combination skirt and shirt and her underwear. Defendant touched her vagina with his
hand, poked inside her vagina with his finger, which hurt, and licked her vagina. This
activity lasted about 10 minutes. Defendant told her not to tell anyone and then went
back into Ty.L.’s bedroom. T.M. cried, put her skirt and underwear back on, but got her
underwear on backwards, which others noticed after she got up in the morning.
       That same morning, T.M. told her mother and several others that “Gator,”
defendant’s nickname, had used his hand to open her vagina and then licked her vagina.
An investigating officer testified that T.M. told him that defendant had orally copulated
her, but she denied that digital penetration had occurred. T.M. denied having told the
officer that digital penetration had not occurred.

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Uncharged Acts
       Nathan B., 24 years old at the time of trial, testified he was defendant’s brother.
Nathan denied that defendant had done anything to him sexually when he was eight or
nine years old. However, David Ford, formerly a detective with the Sacramento Police
Department, testified that when Nathan was nine years old he interviewed him at an
elementary school regarding his having been sexually assaulted. Nathan told Ford that
while Nathan was lying on the bed in defendant’s bedroom playing with some puppies,
defendant masturbated and got “cum” on one of the puppy’s heads. Defendant then
“made the dog suck his penis.” Defendant, who was wearing boxer shorts, then got
behind Nathan and started humping him. Nathan told their mother and she called the
police. Nathan B. also told Ford that when he was eight years old, defendant got into the
shower with him and put “the dick on my bootie and pushed it inside my butt.”
       Jessica J., 26 years old at the time of trial, testified that in March 1999 she was
about 13 years old and a student in junior high school and had gone to Rancho Cordova
High School looking for her cousin and a friend when she saw defendant, with whom she
was acquainted. Defendant offered to help her look and took her hand. As they walked
by a bathroom defendant pushed her partway into it, grabbed her hand and put it down
his pants. When she pulled away he tried to unbutton her pants, but she was able to pull
away and run. After finding and telling her friend what happened, she was taken to the
office to report the matter to the police.
                                        Defense Case
       Tianna Saffel, who was pregnant with defendant’s child, testified that about a
week after defendant purportedly molested T.M. she moved with him to Reno. There,
they had an on-and-off relationship until he was arrested in October 2011 on the
molestation charge. While in Reno, defendant received text messages and naked
photographs from a cell phone with a phone number similar to Ty.L.’s. Saffel also
overheard the woman say, “You are not with me, how could you leave us, how could you

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leave my children.” After defendant’s arrest, Saffel examined defendant’s cell phone and
discovered text messages that he was still communicating in a romantic way with the
woman who she believed was Ty.L.
       Defendant’s mother, Lynette Baker, testified that Ty.L. called her and asked her to
come to Ty.L.’s apartment. Baker complied and Ty.L. took her into a bedroom and told
her that defendant had touched her daughter. Baker asked Ty.L. if she had called the
police and she responded that she had not. Baker asked T.M. what happened and T.M
said that defendant had touched her. Baker went home and, for the purpose of protecting
defendant, called the police.
       The next day, Ty.L. came to Baker’s apartment and told Baker that she had made
up the accusations against defendant because she did not want defendant to move with
her. Ty.L. was chuckling as she told this to Baker. Baker told Ty.L. that she should call
the police and let them know the accusations were made up.
       Patricia Antonetti testified that she was an employee of Folsom Cordova Unified
School District and defendant was one of the students she worked with. In March of
1999 she saw defendant and a female against a wall hugging and kissing. Antonetti had
no recollection of whether force was being used, but stated if the contact had appeared
forceful she would have intervened.
                                        Discussion
                                              I
       Defendant contends that the trial court’s instructing the jury, over his objection, to
continue deliberating after it had declared itself deadlocked coerced the jury into reaching
a decision, thereby violating his right to due process. We reject the contention.
       Trial testimony was given over four days, ending on June 11, 2012. On June 12
the trial court completed instructing the jury and the jury commenced deliberations. On
June 13, at noon, the jury sent the court a note stating the jury could not come to a
unanimous decision. The court informed the parties that it was going to give “the

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Firecracker instruction,” an instruction approved by this court in Moore, which directed
the jury to continue deliberations. Defendant objected on grounds that giving the
instruction “invades the province of the jury” and “impermissibly intrudes on the jury’s
deliberations” in violation of federal and state due process and equal protection clauses.
Unswayed, the trial court gave the Moore instruction, which, in its entirety, read as
follows:
       “In the course of your further deliberations, you should not hesitate to re-examine
your own views or to request your fellow jurors to re-examine their’s. You should not
hesitate to change a view you once held if you are convinced it is wrong, or to suggest
that other jurors change their views if you are convinced they are wrong.
       “Fair and effective jury deliberations require a frank and forthright exchange of
views. I remind you of that discussion we had earlier about the ideal juror respecting the
views of every jurors [sic] and respecting their own views.
       “As I previously instructed you, each of you must decide the case for yourself, and
you should do so only after a full and complete consideration of all of the evidence with
your fellow jurors. It is your duty as jurors to deliberate with the goal of arriving at a
verdict on the charges, if you can do so without violence to your individual judgment.[2]




2 In the original reporter’s transcript filed in this case the last sentence of the quote
omitted the italicized “if” and instruction read: “It is your duty as jurors to deliberate
with the goal of arriving at a verdict on the charges. You can do so without violence to
your individual judgment.” After the briefs in this case were filed, the court reporter filed
a correction to the transcript such that the instruction reads as we have quoted. Relying
on the uncorrected version of the instruction, defendant has argued the instruction’s
omission of the word “if” caused the instruction to become “improperly coercive.”
Although we have not heard anything from defendant with regard to the reporter’s
correction, the corrected record obviates the need for us to address this argument.

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       “Both the People and the defendant are entitled to the individual judgment of each
juror. As I previously instructed you, you have the absolute discretion to conduct your
deliberations in any way you deem appropriate.
       “May I suggest that since you have been under--since you have not been able to
arrive at a verdict using the method you have chosen that you consider changing the
methods you have been following, at least temporarily and trying new methods.
       “For example, you may wish to consider having different jurors lead the
discussions for a period of time, or you may wish to experiment with reverse role playing
by having those on one side of an issue present and argue the other side’s position and
vice versa. This might enable you to better understand the other’s positions.
       “My suggestion you should consider changes in your methods of deliberations, I
want to stress that I am not dictating or instructing you as to how to conduct your
deliberations. I merely suggest that you may find it productive to do whatever is
necessary to ensure each juror has a full and fair opportunity to express his or her views
and consider and understand the views of the other jurors.
       “I also suggest you re-read CALCRIM Instruction 200, CALCRIM Instruction
3550. These instructions pertain to your duties as jurors, and they make
recommendations on how you should deliberate.
       “The integrity of a trial requires that jurors at all times during their deliberations
conduct themselves as required by the instructions.
       “CALCRIM Instruction 200 defines duties of a juror.
       “The decision the jury renders must be based on the facts and the law. You must
determine what facts have been proved from the evidence received in the trial, and not
from any other source.
       “A fact is something proved by the evidence or by stipulation. Second, you must
apply the law I state to you to the facts as you determine them, and in this way arrive at



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your verdict. You must accept and follow the law as I state it to you regardless of
whether you agree with the law.
       “If anything concerning the trial said by the attorneys in their arguments or at any
other time during the trial conflicts with my instructions on the law, you must follow my
instructions.
       “CALCRIM 3550 defines the jury’s duty to deliberate and recommends how
jurors should approach their task. The decisions you make in this case must be based on
the evidence received in the trial and the instructions given by the Court. These are
matters--these are the matters this instruction requires you to discuss for the purpose of
reaching a verdict.
       “You should keep in mind the recommendations this instruction suggests when
considering the additional instructions, comments and suggestions I have made in the
instructions now presented to you. I hope my comments and suggestions may have been
some assistance to you.
       “You are ordered to continue your deliberations at this time. If you have any other
questions, concerns, requests, or any communication you desire to report to me, please
put those in writing on the form my bailiff has provided you with. Have them signed and
dated by your foreperson, and then please notify the bailiff.” (Italics added.)
       Defendant argues the Moore instruction was coercive because it indicated the
court’s preference for a verdict, told the jurors to reexamine their view and change it if
they were convinced that it was wrong, told them that it was their duty to deliberate with
the goal of reaching a verdict, and failed to give the jury a cautionary instruction that a
hung jury was a permissible result. The argument is meritless.




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          As to defendant’s complaint that the instructions show the court’s “preference for
a verdict,” rule 2.1036 of the California Rules of Court3 supports such a preference. Rule
2.1036 provides in pertinent part: “After a jury reports that it has reached an impasse in
its deliberations, the trial judge may, in the presence of counsel, advise the jury of its duty
to decide the case based on the evidence while keeping an open mind and talking about
the evidence with each other.” In accordance with rule 2.1036, the court instructed the
jury as follows: “As I previously instructed you, each of you must decide the case for
yourself, and you should do so only after a full and complete consideration of all of the
evidence with your fellow jurors. It is your duty as jurors to deliberate with the goal of
arriving at a verdict on the charges, if you can do so without violence to your individual
judgment.”
          There is no significant distinction between rule 2.1036 and the instruction given
by the court. Both the rule and instruction simply represent the common-sense
proposition that to the extent one becomes convinced that their position is wrong, change
it.
          As to defendant’s complaint that the Moore instruction was coercive because “[i]t
told [the jury] that it was their duty to deliberate with a goal of reaching a verdict”
without informing them “that a hung jury was a permissible result,” again he is wrong. In
People v. Gurule (2002) 28 Cal.4th 557, the California Supreme Court observed that such
an instruction need not be given because it could “improperly diminish[] the jury’s duty
to deliberate and reach a verdict if possible.” (Id. at p. 660.) Accordingly, there was no
error in not so instructing the jury.
          Finally, we note, as do the People, that defendant’s citations to United States v.
Bonam (9th Cir. 1985) 772 F.2d 1449, at page 1450, and United States v. Mason (9th Cir.




3     Undesignated rule references are to the California Rules of Court.

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1981) 658 F.2d 1263, at page 1268, as authorities for the proposition that the trial court’s
failure to instruct the jury that a hung jury was a permissible result, “weighs heavily in
favor of the conclusion that the defendant’s right to a fair trial and impartial jury has been
violated,” do not stand for any such proposition. Nor has our research disclosed any case
that does.
       In sum, defendant has failed to establish that the Moore instruction was coercive in
any aspect. Accordingly, his challenge on such grounds is rejected.
                                              II
       Defendant contends the trial court abused its discretion under Evidence Code
section 3524 in admitting evidence of his prior uncharged sexual offenses against Nathan
B. and Jessica J. for the purpose of proving his criminal disposition to commit sex
offenses under Evidence Code section 1108, thereby violating his right to due process.
       As to Nathan B., defendant argues that “although the evidence [of the acts] was
not particularly inflammatory,” evidence of them ran the danger of the jury’s wanting to
convict him as “revenge” for his having escaped punishment for the offenses; the 16 and
19 year remoteness of the acts deprived him of the ability to defend himself because of an
inability to recall facts;5 and the acts being only generally similar to the charges in the
present case severely decreased their relevance. Indeed, as defendant sees it, the acts
were no more than “teenage hormones and roughhousing between brothers.”




4 Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.”
5 In his opening brief, defendant cited the offenses against Nathan B. and Jessica J. as
being 23 and 26 years old and 26 and 29 years old. Following the People’s noting
defendant’s math was inaccurate, defendant, in his reply brief, acknowledges the error,
but still maintains his remoteness argument.

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       As to Jessica J., defendant argues the evidence’s “probative value [was] so
minimal, that it was non-existent” because the conduct was nothing more than a 15-year-
old boy wanting to have sex with his 13-year-old female friend or girlfriend, which is
“common teenage behavior which is not even criminalized.”
       Defendant’s section 352 analysis is far from persuasive. “Before section 1108 was
enacted, Evidence Code section 1101 governed the admission of prior criminal conduct,
and a body of law developed concerning how similar the prior conduct had to be to the
charged crime; the required degree of similarity varied depending on the use for which
the evidence was offered. [Citation.] ‘All of that radically changed with respect to sex
crime prosecutions with the advent of section 1108. . . . [S]ection 1108 now “permit[s]
the jury in sex offense . . . cases to consider evidence of prior offenses for any relevant
purpose” [citation], subject only to the prejudicial effect versus probative value weighing
process required by [Evidence Code] section 352.’ [Citation.] ‘In enacting Evidence
Code section 1108, the Legislature decided evidence of uncharged sexual offenses is so
uniquely probative in sex crimes prosecutions it is presumed admissible without regard to
the limitations of Evidence Code section 1101.’ [Citation.] Or, as another court put it,
‘[t]he charged and uncharged crimes need not be sufficiently similar that evidence of the
latter would be admissible under Evidence Code section 1101, otherwise Evidence Code
section 1108 would serve no purpose. It is enough the charged and uncharged offenses
are sex offenses as defined in section 1108.’ [Citation.]” (People v. Loy (2011) 52
Cal.4th 46, 63.)
       Nathan B. was nine years old when defendant sodomized him in the shower and
Jessica J. was 13 years old when defendant forcefully pulled her into a bathroom and
tried to put her hand down his pants to touch his penis. These acts are a far cry from
“roughhousing between brothers” and “common teenage behavior which is not even
criminal”; instead, the acts constitute, at the least, felony conduct under section 288,
subdivision (a), lewd and lascivious conduct with a child under age of 14 years. And

                                             10
since section 288 is an offense specified in Evidence Code section 1108, subdivision
(d)(1)(A), evidence of defendant’s prior commission of such act or acts is “uniquely
probative,” and therefore highly relevant as to his commission of the presently charged
acts.
        As to defendant’s claim that the jurors were inclined to convict him out of revenge
for the lack of punishment for the uncharged offenses, this is not a reasonable possibility
given defendant’s admission that the evidence of the uncharged acts was “not particularly
inflammatory” and that the jury acquitted him of the other two felony charges.
        Accordingly, we find no abuse of the court’s discretion in admitting the uncharged
offenses.
                                             III
        Defendant contends, and the People agree, that he is entitled two more days of
presentence custody credit. We too agree. The trial court awarded defendant 273 days of
actual custody plus 40 days for conduct, a total of 313 days.6 The calculation apparently
left out the day of defendant’s arrest in Washoe County, Nevada. We will direct the court
to credit defendant with 274 days actual custody plus 41 days for conduct, a total of 315
days of presentence custody credit.




6 Because a violation of section 288.7, subdivision (b) is a violent felony (§§ 288.7,
subd. (b), § 289, subds. (k)(1), (k)(2)), defendant’s conduct credits are limited to 15
percent of days earned.

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                                            Disposition
      The trial court is directed to award defendant one additional day for actual custody
and one additional day for conduct, a total of 315 days of presentence custody. The trial
court is directed to prepare an amended abstract of judgment and forward a copy of the
amended abstract to the Department of Corrections and Rehabilitation. In all other
respects the judgment is affirmed.



                                                BLEASE               , J.


We concur:


         RAYE                        , P. J.


         HULL                        , J.




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