Filed 8/17/16 P. v. Oliva CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B265008
                                                                            (Super. Ct. No. 1426137)
     Plaintiff and Respondent,                                               (Santa Barbara County)

v.

SANTOS J. GUEVARA OLIVA,

     Defendant and Appellant.



                   Santos J. Guevara Oliva appeals from the judgment entered after a jury had
convicted him of forcible rape (Pen. Code § 261, subd. (a)(2))1 and aggravated sexual
assault by means of forcible rape of a child. (§ 269, subd. (a)(1).) The jury found true an
enhancement that appellant had personally inflicted great bodily injury. (§ 12022.7.)
Because of the enhancement, on the forcible rape count appellant was sentenced to prison
for life without the possibility of parole. (§ 667.61, subds. (c)(1), (d)(6), (j)(1).)
                   Appellant contends that that the trial court (1) failed to instruct the jury sua
sponte on a lesser included offense, (2) erroneously instructed the jury on the great bodily
injury enhancement, (3) abused its discretion in admitting evidence of appellant’s
uncharged sexual misconduct, and (4) erroneously refused to disqualify itself. In
addition, appellant asserts that during closing argument the prosecutor misstated the law
concerning great bodily injury. Appellant's final contention is that his sentence
         1
             Unless otherwise stated, all statutory references are to the Penal Code.
constitutes cruel and/or unusual punishment under the federal and state constitutions. We
affirm.
                                            Facts
              L.N. lived with her mother and appellant, who was not her father. One
night in 2012 when her mother was not at home, L.N. was lying on a bed watching
television. She was 13 years old. Appellant was lying on the bed next to L.N. He
touched her breast under her clothing and forced his tongue into her mouth. He “was
trying to pull . . . down” her pants, but L.N. “kept pulling them up.” Appellant eventually
pulled down her pants and put his fingers inside her “private part.” L.N. tried to “push
his hand out” but was unable to do so because he was “way stronger.” “At the end,” she
“pushed him away” and “just stood up and left.” Appellant said, “‘Don’t tell anybody.
Don’t tell any of your friends.’” Appellant could have put his penis inside of her, but
L.N. did not see his penis.
              L.N. went into the bathroom. She “saw something gooey between [her]
legs.” “It was something that came out of [appellant].” She did not tell her mother
because she was scared.
              In January 2013 a doctor informed L.N. that she was pregnant. She told the
doctor that appellant “had been assaulting her” and had impregnated her. An ultrasound
showed that the age of the fetus was 17 weeks. L.N. elected to have an abortion. A DNA
test of fetal tissue showed that appellant was the father.
              After L.N.’s pregnancy diagnosis, appellant fled. He was arrested in
Maryland.
              At trial appellant did not testify. During closing argument, defense counsel
conceded that appellant had nonconsensual sexual intercourse with L.N. Counsel
claimed that appellant had not used force to accomplish the act of sexual intercourse.
                Failure to Instruct Sua Sponte on Lesser Included Offense
              The trial court instructed the jury on the charged offense of aggravated
sexual assault by means of forcible rape of a child under the age of 14 years and more
than 7 years younger than the perpetrator. (§ 269, subd. (a)(1).) Appellant argues that,

                                              2
pursuant to the accusatory pleading test for lesser included offenses, the trial court
erroneously failed to instruct sua sponte on the lesser included offense of unlawful sexual
intercourse as defined in section 261.5, subdivision (c). The statute applies to “an act of
sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if
the person is a minor” who is more than three years younger than the perpetrator.
(§ 261.5, subds. (a), (c).)
               We need not decide whether, under the accusatory pleading test, the
charged offense necessarily includes the lesser offense of unlawful sexual intercourse. A
court is not required to instruct on a lesser included offense “when there is no evidence
the offense was less than that charged.” (People v. Koontz (2002) 27 Cal.4th 1041,
1085.) Here, there is no evidence that appellant did not use force to accomplish an act of
sexual intercourse with L.N. Thus, the trial court was not required to instruct sua sponte
on unlawful sexual intercourse.
                         Jury Instruction on Great Bodily Injury and
                        Prosecutor’s Closing Argument on this Issue
               In People v. Cross (2008) 45 Cal.4th 58, 61, our Supreme Court held that a
finding of great bodily injury can be supported by evidence of “a pregnancy without
medical complications that results from unlawful but nonforcible sexual conduct with a
minor . . . .” The Supreme Court concluded that the trial court had erred in instructing the
jury that “‘an abortion may constitute great bodily injury.’” (Id., at p. 66.) The
instruction was “‘“correct in law but irrelevant”’” because “there was no evidence
[defendant] personally performed the abortion.” (Id., at p. 67.) The great bodily injury
enhancement requires that the injury be personally inflicted by the defendant.
(§ 12022.7.) In a concurring opinion, Justice Baxter stated, “[T]he point might be
clarified in future cases by instructing the jury along these lines: ‘A pregnancy may
constitute great bodily injury. You may consider the circumstances and effects of the
abortion of that pregnancy in determining whether the pregnancy constituted great bodily
injury in this case.’” (People v. Cross, supra, 45 Cal.4th at p. 69, fn. 1, conc. opn. of
Baxter, J.)

                                              3
              Here, Justice Baxter’s suggested instruction was given verbatim. Appellant
claims that the instruction was erroneous because “‘circumstances and effects’ of an
abortion can easily be construed to include the psychological and emotional trauma
attendant upon an abortion, which by statute are not proper considerations for
determining great bodily injury.” Section 12022.7, subdivision (f) provides, “‘[G]reat
bodily injury’ means a significant or substantial physical injury.” (Italics added.)
Appellant asserts that the instructional error was exacerbated by the prosecutor’s closing
argument, “[t]he upshot” of which “was to make the jurors uncomfortable . . . and instill a
sense of distaste for the abortion process.” “T]he prosecutor referred to the ‘sad’ and
‘hard’ decision to have an abortion, and then described the aborted fetus . . . .”
              “A defendant challenging an instruction as being subject to erroneous
interpretation by the jury must demonstrate a reasonable likelihood that the jury
understood the instruction in the way asserted by the defendant. [Citations.]” (People v.
Cross, supra, 45 Cal.4th at pp. 67-68.) “[W]e are obliged to consider the effect and
import of the court’s jury instructions as a whole. [Citations.]” (People v. Regalado
(2000) 78 Cal.App.4th 1056, 1061-1062.) Viewed as a whole, the jury instruction on
great bodily injury was not reasonably likely to have misled the jury into believing that
such injury can be proved by psychological or emotional trauma. The instruction
provided, “Great bodily injury means significant or substantial physical injury.” (First
italics in original, second italics added.)
              The prosecutor’s argument about the abortion process was not contrary to
the jury instruction. Even if it were, we would presume that the jury followed the
instruction: “‘When argument runs counter to instructions given a jury, we will
ordinarily conclude that the jury followed the latter and disregarded the former, for “[w]e
presume that jurors treat the court’s instructions as a statement of the law by a judge, and
the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.”
[Citation.]’ [Citation.]” (People v. Centeno (2014) 60 Cal.4th 659, 676.) The court
instructed the jury, “You must follow the law as I explain it to you, even if you disagree



                                              4
with it. If you believe that the attorneys’ comments on the law conflict with my
instructions, you must follow my instructions.”
              Appellant faults the prosecutor for telling the jury that “the very fact of
pregnancy ‘constitutes great bodily injury’ as a ‘done’ deal.” The prosecutor said: “It is
the People’s position that the pregnancy, in and of itself, notwithstanding anything that
happens after that, constitutes great bodily injury. Done. You get that girl pregnant, that
is great bodily injury. Done. That is the People’s position here. You don’t need to go
into the circumstances and effects.” (Italics added.) Appellant claims that “the
prosecutor’s argument misstated the law” because “pregnancy in and of itself does not
constitute great bodily injury as a matter of law.” (Bold and capitalization omitted.) In
People v. Cross, supra, 45 Cal.4th at p. 66, our Supreme Court declined to decide
“whether every pregnancy resulting from unlawful sexual conduct, forcible or otherwise,
will invariably support a factual determination that the victim has suffered a significant or
substantial injury, within the language of section 12022.7.”
              The prosecutor did not misstate the law. He made clear that he was stating
“the People’s position” that the impregnation by forcible rape of 13-year-old L.N.
constituted the infliction of great bodily injury. “Closing argument presents a legitimate
opportunity to ‘argue all reasonable inferences from evidence in the record.’ [Citation.]”
(People v. Bolton (1979) 23 Cal.3d 208, 212.) The “People’s position” was a reasonable
inference.
                           Admission of Evidence of Appellant’s
                           Prior Uncharged Sexual Misconduct
              Appellant maintains that the trial court abused its discretion in admitting
evidence of his prior uncharged sexual misconduct involving Angel N. The prosecutor
argued that the evidence was relevant to show motive, intent, common design or plan,
propensity, and to corroborate L.N.’s testimony. In a pretrial motion in limine, the
prosecutor described the evidence as follows: Appellant was married to and was residing




                                              5
with Angel N.’s mother.2 In March 2008, when Angel N. was 12 years old, appellant
“entered [her] bedroom, took off her clothing while she was sleeping and touched her
breasts. When she moved, [appellant] left the room. . . .[3] [¶] A week later, [appellant]
again entered Angel N.’s bedroom while she was asleep. Angel N. was awakened by
[appellant] digitally penetrating her. [Appellant] left the room but returned and again
digitally penetrated her. She was too scared to move . . . .”4 The prosecutor noted that
appellant “was arrested and subsequently pled no contest to felony False Imprisonment,”
for which he was sentenced to prison for two years. The jury was not informed of
appellant’s conviction.
                At the hearing on the motion in limine, defense counsel conceded that the
evidence was admissible to show propensity under Evidence Code section 1108:
“[T]here’s nothing I can do about it coming in under 1108. It appears to satisfy the
requirements of 1108.” Defense counsel also conceded that the evidence was admissible
under Evidence Code section 1101, subdivision (b), but protested that “it seems
cumulative for it to come in the second time under 1101(b).” The trial court ruled that
the evidence was admissible under sections 1108 and 1101, subdivision (b). As to the
latter section, the evidence was admissible to show motive, intent, knowledge, and
common plan. Since defense counsel conceded that the evidence was admissible,
appellant has forfeited his contention that the trial court abused its discretion. (People v.
Abel (2012) 53 Cal.4th 891, 924.)
                Appellant claims that he was denied his Sixth Amendment right to effective
assistance of counsel. The standard for evaluating this claim is set forth in Strickland v.

       2
           Angel N. testified that appellant was her stepfather.
       3
           Angel N. testified that she “just laid there” because she “was in shock” and “was
scared.”
       4
         Angel N. testified: “I was really mad, but I didn’t move, and I was just really
scared, and . . . I didn’t want to like scream or anything because I didn’t want to wake up
my siblings because they were in the same room, so I just laid there.” Appellant had his
fingers inside her vagina “[f]or about a couple minutes.”
                                                6
Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674]: “First,
[appellant] must show that counsel’s performance was deficient. . . . Second, [appellant]
must show that the deficient performance prejudiced the defense.”
              To establish deficient performance, appellant must show that counsel’s
“performance fell below an objective standard of reasonableness under prevailing
professional norms.” (In re Cudjo (1999) 20 Cal.4th 673, 687.) “Counsel is not required
to proffer futile objections. [Citation.]” (People v. Anderson (2001) 25 Cal.4th 543,
587.) Reasonable counsel could have concluded that it would have been futile to object
that the uncharged sexual misconduct was inadmissible under Evidence Code section
1108. This section “‘authorizes the admission of evidence of a prior sexual offense to
establish the defendant’s propensity to commit a sexual offense, subject to exclusion
under Evidence Code section 352.’ [Citations.] . . . [¶] . . . To be admissible under
section 1108, ‘the probative value of the evidence of uncharged crimes “must be
substantial and must not be largely outweighed by the probability that its admission
would create a serious danger of undue prejudice, of confusing the issues, or of
misleading the jury.” [Citations.]’ [Citation.] ‘The principal factor affecting the
probative value of an uncharged act is its similarity to the charged offense.’” (People v.
Hollie (2010) 180 Cal.App.4th 1262, 1273-1274.) Given the substantial similarities
between the charged and uncharged offenses in the instant case, an objection to the
admission of the uncharged offenses “would probably have been futile.” (People v.
Memro (1996) 11 Cal. 4th 786, 834.)
              In any event, appellant was not prejudiced by counsel’s failure to object.
To show prejudice, “[t]he defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” (Strickland v. Washington, supra, 466 U.S. at p. 694.) We do not lack
confidence in the outcome. Disregarding the uncharged offenses, the evidence against
appellant is still overwhelming.



                                             7
                        Trial Judge’s Refusal to Disqualify Himself
              The prosecutor and the trial judge, Michael J. Carrozzo, had been friends
when they both worked in the Santa Barbara District Attorney’s Office before the judge’s
appointment to the bench in June 2014.5 They played golf together. “For a period of
time [Judge Carrozzo] was assigned the office next” to the prosecutor’s office. The
prosecutor spoke at the judge’s “enrobing ceremony.” Since the judge’s appointment,
they have not played golf or socialized.
              On January 13, 2015, approximately two months before the trial began, the
prosecutor disclosed in open court that he and Judge Carrozzo remained friends and
“periodically go to social functions.” The judge stated, “I don't believe there’s any
disclosure to be made on . . . my relationship with this attorney. . . . I’ve seen him at
other social events that were open to the general public, but I don’t have any personal or
private relationship with him at the present time.”
              In a letter dated February 22, 2015, and addressed “To whom it may
concern,” Judge Carrozzo recommended the prosecutor for a judicial appointment. He
wrote that the prosecutor is “the most qualified candidate in Santa Barbara County for a
judicial appointment.” The judge said he had “known [the prosecutor] for over seven
years both personally and professionally.”
              Trial testimony began on March 19, 2015. The next day, Judge Carrozzo
disclosed to defense counsel that he had written the letter of recommendation. His
disclosure was triggered by a March 19, 2015 email from the presiding judge “indicating
that the CJA [California Judges Association] hotline opined that, if a judge writes a letter
of recommendation for a judicial applicant, the judge has a duty to disclose that support
when the lawyer appears before the judge.”
              Based on the letter, appellant filed a motion to disqualify Judge Carrozzo.
The judge struck appellant’s statement of disqualification because “on its face [it]
discloses no legal grounds for disqualification.”

       5
        Pursuant to appellant’s request, we take judicial notice that Judge Carrozzo was
appointed on June 18, 2014. (Evid. Code, §§ 452, subds. (c), (h), 459.)
                                              8
              On April 3, 2015, appellant filed a petition for a writ of mandate directing
Judge Carrozzo to vacate his order striking the statement of disqualification. On April 6,
2015, we summarily denied the petition.
              Appellant argues that Judge Carrozzo’s “refusal to disqualify [him]self
violated both appellant’s state statutory right to disqualification and his federal due
process right to a fair trial . . . .” (Bold and capitalization omitted.) Appellant continues,
“[T]he judge’s support of the prosecutor [in seeking] judicial office very close in time to
this trial and their close social relationship demonstrate a probability of actual bias on the
part of the judge that is too high to be constitutionally tolerable.”
              The People counter that appellant “is precluded from raising his statutory
claim on appeal.” We agree. Code of Civil Procedure section 170.3, subdivision (d)
provides, “The determination of the question of the disqualification of a judge is not an
appealable order and may be reviewed only by a writ of mandate from the appropriate
court of appeal sought only by the parties to the proceeding.” (See also People v.
Freeman (2010) 47 Cal.4th 993, 1000 [“‘Under our statutory scheme, a petition for writ
of mandate is the exclusive method for obtaining review of a denial of a judicial
disqualification motion’”]; People v. Brown (1993) 6 Cal.4th 322, 334 [“Section 170.3(d)
forecloses appeal of a claim that a statutory motion for disqualification . . . was
erroneously denied”].)
              But because appellant “(i) sought writ relief as required by section 170.3(d)
[citation], and (ii) writ relief was summarily denied, he may assert on appeal . . . a
constitutional due process claim that the judge who presided over his [trial] was not
impartial. [Citations.]” (People v. Brown, supra, 6 Cal.4th at p. 336, fn. omitted.)
“Accordingly, we address the issue of judicial disqualification solely under the rubric of
due process. [Citation.]” (People v. Freeman, supra, 47 Cal.4th at p. 1000.)
              “[T]he United States Supreme Court’s due process case law focuses on
actual bias. This does not mean that actual bias must be proven to establish a due process
violation. Rather, consistent with its concern that due process guarantees an impartial
adjudicator, the court has focused on those circumstances where, even if actual bias is not

                                               9
demonstrated, the probability of bias on the part of a judge is so great as to become
‘constitutionally intolerable.’ [Citation.] The standard is an objective one.” (People v.
Freeman, supra, 47 Cal.4th at p. 1001.) “[T]he due process clause should not be
routinely invoked as a ground for judicial disqualification. Rather, it is the exceptional
case presenting extreme facts where a due process violation will be found. [Citation.]”
(Id., at p. 1005.)
               “[T]he facts here [do not] present the kind of extreme case that implicates
the due process clause.” (People v. Freeman, supra, 47 Cal.4th at p. 1005.) “Because
virtually all judges are drawn from the ranks of the legal profession, [the] prior
relationship[] [between the prosecutor and Judge Carrozzo is] neither unusual nor
dispositive. [Citation.]” (People v. Carter (2005) 36 Cal.4th 1215, 1243.) Judge
Carrozzo’s letter of recommendation does not show that “the probability of bias on the
part of [the] judge [was] so great as to become ‘constitutionally intolerable.’” (People v.
Freeman, supra, 47 Cal.4th at p. 1001.) “[T]he proper performance of judicial duties
does not require a judge to withdraw from society and live an ascetic, antiseptic and
socially sterile life.” (United Farm Workers of America v. Superior Court (1985) 170
Cal.App.3d 97, 100.)
                             Cruel and/or Unusual Punishment
               For the forcible rape of a 13-year old child with great bodily injury,
appellant was sentenced to life imprisonment without the possibility of parole. Appellant
contends that his sentence constitutes cruel and/or unusual punishment under the Eighth
Amendment of the United States Constitution and article 1, section 17 of the California
Constitution. “Under the Eighth Amendment of the United States Constitution, ‘the
courts examine whether a punishment is grossly disproportionate to the crime.’
[Citation.] ‘Under the California Constitution, a sentence is cruel or unusual if it is so
disproportionate to the crime committed that it shocks the conscience and offends
fundamental notions of human dignity.’ [Citation.]” (People v. Johnson (2013) 221
Cal.App.4th 623, 636.)



                                              10
              “[A]ppellant’s sentence is not disproportionate to his crime. ‘Harmelin v.
Michigan (1991) 501 U.S. 957 [115 L.Ed.2d 836, 111 S.Ct. 2680], . . . upheld a sentence
of LWOP [(life without the possibility of parole)] for possession of 672 grams of cocaine,
a serious crime, but [far] less heinous than’ the crime[] committed by appellant.
[Citation.]” (People v. Johnson, supra, 221 Cal.App.4th at p. 636.) The presentence
probation report concluded that appellant “is a sexual predator who has no regard for his
victims, nor for the impact of his conduct on the families of his victims.”
                                        Disposition
              The judgment is affirmed.
              NOT TO BE PUBLISHED.



                                                         YEGAN, J.


We concur:



              GILBERT, P. J.



              PERREN, J.




                                             11
                               Michael J. Carrozzo, Judge

                        Superior Court County of Santa Barbara

                          ______________________________


             Jean Ballantine, under appointment by the Court of Appeal, for Defendant
and Appellant.
              Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr., Supervising Deputy Attorney General, Daniel C. Chang, Deputy Attorney
General, for Plaintiff and Respondent.
