Filed 6/7/13 P. v. Samaniego CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047097

         v.                                                            (Super. Ct. No. 10HF1606)

JOSE ALBERTO SAMANIEGO,                                                OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, James A.
Stotler , Judge. Affirmed.
                   Robert L.S. Angres for Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and
Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
                 Jose Alberto Samaniego argues that the trial judge should have told the jury
that one of the charges against him, digital penetration of his stepdaughter in violation of
Penal Code section 288.7,1 is a specific intent crime requiring, in addition to the act of
penetration, the purpose of sexual abuse, arousal or gratification. But the trial judge did
instruct the jury the penetration count required the purpose of sexual abuse, arousal or
gratification. He only misclassified the penetration count as a general intent crime, not a
specific intent crime. The error, such as it was, was de minimis, and easily harmless
beyond a reasonable doubt under the Chapman standard.2 We affirm the judgment.
                                                    FACTS
                 Samaniego was convicted of two counts arising out of the sexual
molestation of his six-year-old stepdaughter on the night of September 2, 2010. Count
one was violation of section 288.7, subdivision (b), sexual penetration of a child 10 years
of age or younger. Count two was violation of section 288, subdivision (a), lewd or
lascivious act upon the body of a child under the age of 14 years. Samaniego admitted to
touching the victim’s genital area, but denied any penetration. Trial was solely focused
on count one, the sexual penetration count.
                 At trial, the victim, then age seven, described the molestations.
Samaniego’s fingers went “inside” the “lip areas” of her genitals; Samaniego’s fingers
went “up and down in that area” or “kind of up and down” for “a little long,” and it hurt.
She further said his fingers “mov[ed] around” “on the skin of [her] vagina.” Samaniego’s
fingers felt “gooey.”




         1         All statutory references are to the Penal Code.
         2         There are two standards by which to judge whether error in a criminal trial is harmless, the
“Watson” standard of reasonable probability of a different result (People v. Watson (1956) 46 Cal.2d 818, 835-836)
and the stricter “Chapman” standard of harmless beyond a reasonable doubt (see Chapman v. California (1967) 386
U.S. 18, 24).


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                  The victim also said Samaniego’s fingers went “inside the butthole” She
said it also felt “like gooey.” And it also hurt. The total time was “a little long,” which
she estimated to be “two minutes or one.”
                  On cross-examination, however, the victim admitted that at an indefinite
point “earlier” she had told the prosecutor that Samaniego’s finger “did not . . . [¶]
actually go inside [her] vagina.”
                  Samaniego’s DNA (probably from saliva) was found inside the victim’s
underwear. Expert testimony established that it could have come from his licking his
fingers. Samaniego’s DNA, however, was not found on the victim’s genitals.
                  The jury convicted Samaniego on both the penetration and the lewd act
counts. The jury also found true Samaniego engaged in “substantial sexual conduct” with
his victim, making him ineligible for parole. (§ 1203.066, subd. (a)(8).) Samaniego was
sentenced to 15 years to life for the penetration count, with punishment stayed (see § 654)
on the lewd or lascivious act count.
                                                  DISCUSSION
                  On appeal, Samaniego raises but one issue. He argues that the trial court
erred in instructing the jury, as part of CALCRIM No. 252, that sexual penetration as
alleged in count 1 was a “general intent crime.” Sexual penetration, he asserts, is actually
a specific intent crime requiring sexual abuse, arousal or gratification. (On that point he
is correct, see People v. McCoy (2013) 215 Cal.App.4th 1510, 1538 [“we conclude the
crime of unlawful sexual penetration requires the specific intent to gain sexual arousal or
gratification or to inflict abuse on the victim”].)3 The error, he says, was prejudicial.


          3        Even so, it is easy to see why the judge instructed the jury as he did. Unlike many standardized
jury instructions, CALCRIM No. 252 requires the trial court to do considerable filling in of blanks, including telling
the jury which alleged offenses are general intent crimes and which are specific intent crimes. (See 1 Jud. Council
of Cal. Crim. Jury Instns. No. 252 CALCRIM (2013) p. 81.) Here, it is obvious what happened: The judge looked
at the crime of sexual penetration of a child under 10 as written in section 288.7, saw in that particular statute no
reference specific to the further purpose of sexual abuse, arousal or gratification, didn’t focus on the cross-reference
to section 289, and simply slotted count one into the general intent blank in CALCRIM No. 252.


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                  In point of fact, however, the trial judge actually did tell the jury the sexual
penetration count required it find Samaniego had the additional purpose of sexual abuse,
arousal or gratification. In the present case, CALCRIM No. 252, as given, specifically
directs jurors to look to the “instruction for that crime or allegation” to ascertain the act
“required” to convict. And, soon after the trial judge gave CALCRIM No. 252, he also
told the jury, in language substantively tracking section 289, subdivision (k)(1): “‘Sexual
penetration means penetration, however slight, of the genital or anal opening of the other
person by any foreign object, substance, instrument, device or by any unknown object for
the purpose of sexual abuse, arousal, or gratification.’” (Italics added.)4
                  Any claim of instructional error requires examination of the jury
instructions as a whole. (E.g., People v. Dieguez (2001) 89 Cal.App.4th 266, 276 [“In
reviewing any claim of instructional error, we must consider the jury instructions as a
whole, and not judge a single jury instruction in artificial isolation out of the context of
the charge and the entire trial record.”].) Jurors are also presumed to be sufficiently
capable of “‘correlating’” all jury instructions given. (People v. Richardson (2008) 43
Cal.4th 959, 1028.) Since the jury was actually told sexual penetration must have the
purpose of sexual abuse, arousal or gratification, there was no danger Samaniego could
have been convicted for lewd touching of his stepdaughter’s genitals and anus absent a
sexual purpose.
                  Samaniego is thus left with only the arid, academic misclassification of
sexual penetration under section 288.7 as a general intent rather than a specific intent




        4         He further told the jury Samaniego’s fingers could qualify as a “‘foreign object, substance,
instrument, or device.’”


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crime within the verbiage of CALCRIM No. 252.5 The misclassification was harmless
beyond a reasonable doubt.
                  Samaniego’s argument for prejudicial error goes like this: Given the
erroneous misclassification of the penetration count as a general intent crime, it is
possible some jurors might have found any penetration of the victim’s vagina or anus was
merely “ancillary” to the lewd touching, and not done for the purpose of sexual abuse,
arousal or gratification.6
                  The argument fails because of the undisputed evidence that if Samaniego
penetrated the victim, he did so with “gooey” fingers and left saliva in her underwear –
the reasonable inference is that Samaniego was using his saliva as a crude lubricant to
penetrate his victim, i.e., he had a sexual purpose from the beginning. The argument also
fails because the evidence was undisputed that Samaniego’s touching was done long
enough and vigorously enough to cause real pain, which undercuts any thought of
“superficial” touching with no sexual purpose. And it also fails because the undisputed
evidence showed Samaniego moved his fingers in a sexual and deliberate way (“kind of
up and down” and moved “around”), again wholly belying any claim of mere superficial
or ancillary “touching” without a sexual purpose.
                  We would finally add that Samaniego overstates the possibility of the

          5         The difference between general intent crimes and specific intent crimes is one which many law
school graduates would find troublesome. After all, don’t most crimes (save for a few public safety offenses)
require some kind of intent? (§ 20 [“To constitute crime there must be unity of act and intent. In every crime or
public offense there must exist a union, or joint operation of act and intent, or criminal negligence.”]; see People v.
Simon (1995) 9 Cal.4th 493, 519-520 [exploring comparatively few public health or safety exceptions to general
requirement of mens rea].) As our Supreme Court observed more than 40 years ago, “Specific and general intent
have been notoriously difficult terms to define and apply, and a number of textwriters recommend that they be
abandoned altogether.” (People v. Hood (1969) 1 Cal.3d 444, 456.) It is inconceivable this jury’s verdict involved
close parsing of the distinction between general intent and specific intent rather than the plain language of the
instruction about what form that intent had to take.
          6         The argument is probably best articulated in the reply brief: “[W]hat respondent [the Attorney
General] fails to consider is that since there was conflicting evidence as to whether appellant’s finger actually
penetrated K.’s vagina (e.g., 1 RT 135) and since the physical evidence of penetration was far from conclusive (e.g.,
2 RT 400-404), a juror could have reached a middle ground – appellant superficially penetrated K. ever so slightly
as part of his effort to touch her outer body, but not specifically for the purpose of sexual abuse, arousal or
gratification.”


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absence of penetration. The sole record reference he gives us for the proposition there
was conflicting evidence of actual digital penetration (page 135 of the reporter’s
transcript) only shows an absence of penetration of the victim’s vagina, not any conflict
as to penetration. As the court pointed out in People v. Quintana (2001) 89 Cal.App.4th
1362, penetration need not even include the vagina at all; any penetration “inside the
exterior of the labia majora” is sufficient. (Id. at p. 1371.) No reasonable juror could
have reached some hypothetical “middle ground” of touching without a sexual purpose;
all the evidence pointed to deliberate penetration for a sexual purpose.
                                      DEPOSITION
              The judgment is affirmed.




                                                 BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



IKOLA, J.




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