Filed 2/9/16 P. v. Olivarez-Duran CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D069082

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. RIF1309591)

JUAN MANUEL OLIVAREZ-DURAN,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Riverside County, Michael B.

Donner, Judge. Affirmed.

         Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Joy Utomi,

Deputy Attorneys General, for Plaintiff and Respondent.

         In December 2013 the District Attorney of Riverside County filed an information

charging Juan Manuel Olivarez-Duran with committing four sexual offenses against his
granddaughter, Jane Doe (Jane): (1) sexual intercourse with a child 10 years old or

younger (count 1: Pen. Code,1 § 288.7, subd. (a)); (2) sodomy with a child 10 years old

or younger (count 2: § 288.7, subd. (a)); (3) committing a lewd or lascivious act upon a

child under the age of 14 years (count 3: § 288, subd. (a)); and (4) sexual intercourse or

sodomy with a child 10 years old or younger (count 4: § 288.7, subd. (a)).

       A jury found Olivarez-Duran guilty of count 3 (lewd or lascivious act upon Jane),

but found him not guilty of the three remaining counts. The court sentenced Olivarez-

Duran to a six-year term in state prison.

       On appeal, Olivarez-Duran contends his count 3 conviction must be reversed

because the court (1) committed structural error during voir dire when it "trivialized" the

reasonable doubt standard by eliciting the prospective jurors' agreement that the liquid in

the court's cup was "probably not bourbon," and (2) erroneously denied the defense

request to declare a mistrial or retract the illustration and immediately issue the

reasonable doubt instruction set forth in CALCRIM No. 220. We affirm the judgment.

                               FACTUAL BACKGROUND

       Olivarez-Duran is Jane's grandfather. They lived together in a Riverside home

along with Jane's father and her aunt, uncles, cousins, and grandmother, who was

Olivarez-Duran's wife. Jane's mother lived nearby and shared custody of Jane with Jane's

father. By May 2013 Jane's mother had moved to San Diego and Jane was living with

her father full time. Jane usually shared a bedroom with her father, but she would sleep



1      All further statutory references are to the Penal Code.
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in the room Olivarez-Duran shared with Jane's grandmother when Jane's father went to

work late at night.

       On June 19, 2013, Jane's mother went to Riverside to visit Jane, who was then

about six and a half years old. When Jane's mother woke up from a nap, she saw Jane

sitting on the floor using her (the mother's) cell phone. When her mother asked her what

she was doing, Jane said she was playing games on the phone. As Jane usually played

games on the cell phone, her mother thought nothing of it and went about her day. Jane's

mother testified that she noticed the next day that the app store history on her cell phone

showed someone had searched for "stuff pertaining to boys kissing girls, boys touching

girls, [and] boys and girls having sex" on her cell phone. The next day, Jane's parents sat

down with her and asked her about the searches. Jane admitted she had entered the

search terms, and she indicated she had learned them from a friend at school. When her

parents asked her for the friend's name, Jane said she could not remember and started to

cry.

       Two days later, on June 21, 2013, Jane's mother, who was still worried about the

searches she had found on her phone, spoke with Jane alone. She reassured Jane she was

not in trouble and she could tell her anything. She then asked Jane whether anyone had

touched her, and Jane replied that Olivarez-Duran had. Jane's mother testified that Jane

told her that Olivarez-Duran had put his hands in her pants and he had "use[d] the part he

goes to the bathroom with [to] try to put it inside of her." Jane also told her mother that

the last time it had happened was the night before and that it happened in her

grandparents' bedroom after her grandmother left for work. Jane's mother testified she

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then took Jane to a hospital in Riverside to be evaluated by a doctor. Jane's mother spoke

with the doctor about Jane's medical history and told the doctor that Jane had previously

complained that she felt pain when she urinated and that her private parts itched.

       On June 25, 2013, Jane was interviewed by a forensic interviewer.2 Jane reported

that Olivarez-Duran had started molesting her when she was five and a half years old and

that the molestation continued for a year. She told the interviewer that on several

occasions while she was asleep in her grandmother's room after her grandmother and

father had left for work, Olivarez-Duran would go into the room, pull off her pants, and

"[do] a bad thing" to her by "st[icking] his private into [hers]." Jane also reported that

Olivarez-Duran sometimes would put his penis in her "front private," but that most times

he would put his penis in her "back private." When the interviewer asked Jane to

describe the molestations, Jane responded that Olivarez-Duran would move his penis in

circular motions and then move it up and down. Jane said it did not hurt when he did this

to her. She also said his "front private" felt "slimy" and sometimes he would use his

hands to touch her "front private" and "back private." Jane said that when Olivarez-

Duran was done, he would go to the bathroom to wash up or go back to sleep, and she

would quietly leave the room. Jane also stated that, on one occasion, Olivarez-Duran

took her hand and made her touch his "private." Jane also reported that Olivarez-Duran

last molested her the morning she told her mother about the abuse and the night before.




2     In their appellate briefs, both Olivarez-Duran and the Attorney General assert that
Jane was interviewed by a Riverside County Assessment Team (RCAT) interviewer.
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                                         DISCUSSION

          Olivarez-Duran contends his count 3 conviction must be reversed because (1) the

court committed structural error during voir dire, thereby rendering his conviction

reversible per se, when it "trivialized" the reasonable doubt standard of proof by eliciting

the prospective jurors' agreement that the liquid in the court's blue cup was "probably not

bourbon," and (2) the court erroneously denied the defense request to declare a mistrial or

retract the illustration and immediately issue the reasonable doubt instruction set forth in

CALCRIM No. 220. These contentions are unavailing.

          A. Background

          During voir dire, the court explained to the panel of prospective jurors that every

criminal defendant is presumed to be innocent until proven guilty and that a defendant is

innocent until proven guilty beyond a reasonable doubt. The court explained that, despite

what the prospective jurors may have heard, the standard was not proof beyond "all

doubt" or a "shadow of a doubt." To illustrate the concept of reasonable doubt, the court

stated:

             "I have here in my hand−in the morning I have a different container
             carrying a beverage, but in the afternoon I always have this blue
             cup.[3] Anybody want to guess what's inside of it?"

          One prospective juror said water, another said tea, and another said soda. When a

fourth prospective juror said "bourbon," the following exchange occurred:




3      Later, in describing the court's blue cup, defense counsel stated the court showed
the jury "a Dodgers glass that you can see that there's some sort of liquid in it."
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          "THE COURT: Did everybody hear him? He said bourbon. Is it
          possible it could contain bourbon?

          "PROSPECTIVE JURORS (collectively): Yes.

          "THE COURT: Is it possible? You bet it is. Is it reasonable? No,
          of course not. Does everybody understand the distinction?
          Anything in life is open to some possible or imaginary doubt. It's
          beyond all reasonable doubt."

       The court then explained that a defendant is not required to prove his innocence

and the jurors must consider all the evidence in the case before determining whether the

defendant is guilty.

       Later, outside the presence of the prospective jurors, defense counsel argued that

the court's illustration diminished the beyond a reasonable doubt standard to a

preponderance of the evidence or reasonable suspicion standard. Stating that the court's

"miss-instruction on proof beyond a reasonable doubt" was a structural error, defense

counsel asked that the court declare a mistrial or, in the alternative, strike its analogy and

read the instruction on the definition of proof beyond a reasonable doubt set forth in

CALCRIM No. 220.

       The court denied the mistrial motion and stated it would instruct the jury on the

definition of reasonable doubt when it was selected and seated.

       Later, before the first witness (Jane) testified, the court preinstructed the jury with

the standard reasonable doubt instruction, CALCRIM No. 220. The court gave that

instruction again after the parties rested and before the jury began its deliberations.




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       B. Analysis

       Olivarez-Duran asserts the court's "booze analogy" through the use of its blue cup

during voir dire constituted structural error because it essentially told the jury "that proof

beyond a reasonable doubt is a matter of believing things that are probably true" (italics

added). He maintains the court committed federal constitutional error by analogizing the

concept of proof beyond reasonable doubt "to a rough estimation of the probability the

judge's bottle [sic] did not contain bourbon." These assertions are unavailing.

       In People v. Centeno (2014) 60 Cal.4th 659 (Centeno), the California Supreme

Court recently explained that "[c]ourts have repeatedly cautioned . . . against using

diagrams or visual aids to elucidate the concept of proof beyond reasonable doubt." (Id.

at p. 662.) The Centeno court also explained that "[t]he case law is replete with

innovative but ill-fated attempts to explain the reasonable doubt standard. [Citations.]

We have recognized the 'difficulty and peril inherent in such a task,' and have

discouraged such '"experiments"' by courts and prosecutors. [Citation.] We have

stopped short, however, of categorically disapproving the use of reasonable doubt

analogies or diagrams in argument. Rather, we assess each claim of error on a case-by-

case basis." (Id. at p. 667.)

       The Supreme Court further explained that "[i]t is not sufficient that the jury simply

believe that a conclusion is reasonable. It must be convinced that all necessary facts have

been proven beyond a reasonable doubt." (Centeno, supra, 60 Cal.4th at p. 672, citing

Victor v. Nebraska (1994) 511 U.S. 1, 5 [114 S.Ct. 1239].) Thus, "it is error . . . to



                                              7
suggest that a 'reasonable' account of the evidence satisfies the prosecutor's burden of

proof." (Centeno, at p. 672, italics omitted.)

       However, Centeno also explained that "[i]t is permissible to argue that the jury

may reject impossible or unreasonable interpretations of the evidence and to so

characterize a defense theory." (Centeno, supra, 60 Cal.4th at p. 672, citing, e.g.,

CALCRIM Nos. 224, 226.) To illustrate what is permissible, the Supreme Court stated

that in People v. Romero (2008) 44 Cal.4th 386 (Romero), it "approved the prosecutor's

argument that the jury must '"decide what is reasonable to believe versus unreasonable to

believe" and to "accept the reasonable and reject the unreasonable."' [Citation.] We

concluded that '[n]othing in [that] explanation lessened the prosecution's burden of proof.

The prosecution must prove the case beyond a reasonable doubt, not beyond an

unreasonable doubt.'" (Centeno, at p. 672.)

       Here, the court's analogy through the use of the blue cup, although inadvisable,

was permissible under Centeno and Romero. (See Centeno, supra, 60 Cal.4th at pp. 667,

672; Romero, supra, 44 Cal.4th at p. 416.) The analogy only addressed and illustrated

one aspect of the beyond-a-reasonable doubt standard of proof and the jury's related fact-

finding function: the jury's duty "to 'decide what is reasonable to believe versus

unreasonable to believe' and to 'accept the reasonable and reject the unreasonable.'"

(Romero, supra, 44 Cal.4th at p. 416.) The court did not invite the jury to decide what

was "probably" in the cup, nor did it invite the jury to decide what was in the cup based

on their guesses; and, thus, it did not tell the jury (as Olivarez-Duran contends) that proof

beyond a reasonable doubt "is a matter of believing things that are probably true." The

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court elicited from the jurors suggestions as to what was in the cup, acknowledged it was

possible the cup contained bourbon, and then emphasized that the standard required proof

beyond a reasonable doubt because "[a]nything in life is open to some possible or

imaginary doubt." The court's remark regarding the possibility that the cup contained

bourbon was consistent with the standard jury instruction on reasonable doubt,

CALCRIM No. 220, which states: "The evidence need not eliminate all possible doubt

because everything in life is open to some possible or imaginary doubt." The court was

merely trying to explain that the jury should reject unreasonable theories and doubts and

make a determination, based on the reasonable ones in light of all of the evidence,

whether the prosecution had proved its case beyond a reasonable doubt. The court's

illustration did not trivialize or lessen the beyond-a-reasonable doubt standard of proof.

Accordingly, we reject Olivarez-Duran's claim that the court committed structural error,

and we also reject his related contention that the court erroneously denied his defense

counsel's request that the court declare a mistrial or retract the illustration and

immediately issue the reasonable doubt instruction set forth in CALCRIM No. 220.

       Even if we were to assume the court's illustration and comments were in some

manner ambiguous or erroneous, we would conclude the court's repeated subsequent

instructions under CALCRIM No. 220 cured any such assumed error or ambiguity. In

People v. Medina (1995) 11 Cal.4th 694, the California Supreme Court explained that

"errors or misconduct occurring during jury voir dire, prior to the introduction of

evidence or the giving of formal instructions, are far less likely to have prejudiced the

defendant." (Id. at p. 745.) Here, after the jury was empanelled and before the

                                               9
prosecution called its first witness, the court instructed the jury under CALCRIM No.

220. The court gave that instruction again before the jury began it deliberations. Both

instructions fully and correctly defined the beyond-a-reasonable-doubt standard of proof,

and Olivarez-Duran does not challenge those instructions on appeal. We presume the

jury in this case understood and followed the instructions on reasonable doubt that the

court gave under CALCRIM No. 220. (See People v. Brady (2010) 50 Cal.4th 547, 566,

fn. 9.) We note that although the jury convicted Olivarez-Duran of count 3, it acquitted

him of counts 1, 2, and 4. We conclude Olivarez-Duran has failed to demonstrate a

reasonable likelihood the jury understood or applied the court's challenged remarks

during voir dire in an unconstitutional manner. (See Centeno, supra, 60 Ca1.4th at p.

667.) Accordingly, we affirm the judgment.

                                     DISPOSITION

       The judgment is affirmed.



                                                                     NARES, Acting P. J.

WE CONCUR:


McINTYRE, J.


IRION, J.




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