The PEOPLE, Plaintiff and Respondent, v. Joseph Michael HISHMEH, Defendant and Appellant.
We publish a portion of this opinion as a reminder that People v. Kurtzman (1988) 46 Cal.3d 322, 250 Cal.Rptr. 244, 758 P.2d 572 (Kurtzman) and CALCRIM No. 3517 leave it to the jury to decide the order in which it considers each crime. In this case, after being instructed with CALCRIM No. 3517, the jury asked the trial court how to address lesser included offenses. In its response, the court twice instructed the jury that unless it found the defendant not guilty of the charged crimes, it could not consider the lesser included offenses. By doing so, the court erred. Under the circumstances of this case, the error was prejudicial, and we reverse the convictions for the charged crimes in counts 1 and 2 of the information.
In the unpublished portion of this opinion we address the defendant's arguments that incriminating statements he made to the police should have been excluded. For the reasons we explain, the defendant's statements to the police were admissible.
As a result of the prejudicial instructional error, defendant's convictions for two counts of sexual penetration of a child 10 years of age or younger are reversed; the People shall have the option, following issuance of the remittitur, to retry defendant on these counts. Defendant's convictions for the five counts of committing lewd acts on a child under 14 years of age are affirmed. The matter shall be remanded; following issuance of the remittitur, if the People do not bring defendant to trial within the term prescribed by law on counts 1 and 2, the trial court shall resentence defendant on counts 3 through 7.
Statement of Facts and Procedural History
In February 2015, the Orange County Child Exploitation Task Force executed a search warrant on the house in which defendant, Joseph Michael Hishmeh, was living. Thousands of photographs and videos containing child pornography were seized. (Defendant was not charged in this case with possession of child pornography.)
While the search was ongoing, Newport Beach Police Officers David Syvock and Kim Speakman interviewed defendant in the garage on the property. At the end of the interview, Syvock told defendant he was being arrested. Syvock read defendant his rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 and defendant confirmed that he understood each right.
The next morning, Speakman and Orange County Sheriff's Department Sergeant Sandra Longnecker interviewed defendant in the Santa Ana jail. The officers began by again reading defendant his Miranda rights, and defendant again confirmed that he understood each of those rights.
Defendant was charged in an information with two counts of using his finger to sexually penetrate the victim (a female child between two and three years of age at the time the crimes were committed) (Pen. Code, § 288.7, subd. (b)) (counts 1 and 2), and five counts of touching her in a lewd or lascivious way while photographing and/or videotaping her (id., § 288, subd. (a)) (counts 3 through 7). Defendant's cousin babysat the victim in the home in which defendant was living. During the interviews in the garage and at the police station, defendant admitted being present when photographs and videos were taken of the victim, and admitted touching the victim inappropriately, although he denied sexually penetrating her with his finger.
Before trial, defendant filed a motion to suppress the statements he made to Syvock and Speakman in his garage on the ground that those statements were elicited in violation of Miranda. Defendant also sought to suppress the statements he made to Speakman and Longnecker because he did not voluntarily, knowingly, or intelligently waive his Miranda rights. After further briefing, the court conducted an evidentiary hearing on defendant's motion, at which Syvock, Longnecker, and defendant testified. The trial court denied defendant's motion to suppress.
The trial court received into evidence the video and audio recordings of the garage and jail interviews; copies of the corresponding transcripts were provided to the jury to review while the tapes were played but the transcripts were not admitted in evidence. During the interviews, defendant admitted e-mailing some of the photographs and videos to other people. One of the individuals to whom defendant sent photographs of the victim e-mailed back: “[T]hose are great. Anything go inside?” Defendant replied by e-mail: “Just the tip of my finger. Gotta make more and will try to go inside. Do you have any other ․ pics?” Defendant told the officers this penetration had not actually happened, his statement was a “fantasy,” and he had made the statement in the hope the recipient would send more photographs of underage children to him in return. The e-mails referenced in the interviews were not admitted at trial.
Videos and photographs of the victim constituting child pornography were admitted at trial. The videos and photographs were all taken with the same device and showed the victim. Relevant to the issues in this case were two photographs “of a prepubescent female's genital area being spread on one side by what purports to be an adult finger.” Neither defendant's face nor any identifying marks appears in the photographs.
Defendant did not testify at trial.
Defendant was convicted of two counts of sexual penetration of a child 10 years of age or younger (counts 1 and 2) and five counts of lewd acts upon a child under 14 years of age (counts 3 through 7). The trial court sentenced defendant to two consecutive terms of 15 years to life plus a determinate term of 14 years.
The Trial Court Prejudicially Erred in Its Instruction Regarding the Consideration of Lesser Included Offenses.
Defendant argues that the trial court's instruction to the jury that it could not consider the lesser included offenses on counts 1 and 2 until it had found defendant not guilty of the charged crimes (sexual penetration of a child 10 years old or younger) was erroneous and prejudicial. We review the issue de novo. (People v. Olivas (2016) 248 Cal.App.4th 758, 772-773, 203 Cal.Rptr.3d 842 (Olivas).)
Before deliberations began, the trial court instructed the jury regarding the elements of sexual penetration of a child 10 years of age or younger, and that attempted sexual penetration, assault, and battery were lesser included offenses on counts 1 and 2. The court also instructed the jury with CALCRIM No. 3517: “If all of you find that the defendant is not guilty of a greater charged crime, you may find him guilty of a lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime. [¶] ․ [¶] It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have found the defendant not guilty of the corresponding greater crime.”
On the second day of deliberations, the jury advised the court it could not agree on verdicts on counts 1 and 2, and requested further instruction on how to address the lesser included offenses. In court, the jury's foreperson said the jurors were deadlocked 11 to one and that further deliberations would not be helpful. The foreperson also said that further instruction regarding the meaning of the term “genital or anal opening,” might help their deliberations.1 The court then made the following statements to the jury:
“The Court: Let me tell you about the lesser crimes. Unless you find the defendant not guilty of count 1, you will not consider lesser crimes. Same as to count 2.
“Juror 159: That would be unanimous.
“The Court: You would have to be unanimous for not guilty before you ․ consider the lesser crimes.”
The jurors resumed their deliberations, and ultimately returned with guilty verdicts on counts 1 and 2 for sexual penetration of a child 10 years of age or younger. The court had not provided any further definition of the term “genital or anal opening” before the jury reached verdicts on all counts.
The Attorney General first argues that defendant forfeited this claim of error. “A defendant may forfeit an objection to the court's response to a jury inquiry through counsel's consent, or invitation or tacit approval of, that response. [Citations.] But this rule obviously cannot apply unless it appears that counsel was aware of the court's response at [or] before the time it was effected. ‘Tacit approval’ of the court's response, or lack of response, may be found where the court makes clear its intended response and defense counsel, with ample opportunity to object, fails to do so. [Citation.] At its furthest reach the rule has been held to justify a forfeiture where defense counsel sat mute while the court provided a response later challenged on appeal.” (People v. Ross (2007) 155 Cal.App.4th 1033, 1048, 66 Cal.Rptr.3d 438.) Defendant and his trial counsel were both present when the trial court made the statements quoted above to the jury, and did not raise any objection thereto.
In Olivas, supra, 248 Cal.App.4th at page 772, 203 Cal.Rptr.3d 842, the appellate court considered the same issue presented here. In Olivas, the court concluded that a defendant's failure to object to the inaccurate instruction did not forfeit the right to challenge the error on appeal because the instructional error affected the defendant's substantial rights. (Ibid.) We, too, shall consider the merits of defendant's claim despite any alleged forfeiture.
The Trial Court Erred.
The trial court errs if it instructs the jury “not to ‘deliberate on’ or ‘consider’ ” a lesser included offense until the jury has acquitted the defendant of the greater offense. (Kurtzman, supra, 46 Cal.3d at p. 335, 250 Cal.Rptr. 244, 758 P.2d 572; see Olivas, supra, 248 Cal.App.4th at p. 774, 203 Cal.Rptr.3d 842.)
In Kurtzman, on the third day of deliberations in a murder case, the jury advised the court it could not reach a verdict on murder, although it could reach a verdict on manslaughter. (Kurtzman, supra, 46 Cal.3d at p. 327, 250 Cal.Rptr. 244, 758 P.2d 572.) The court instructed the jury: “ ‘I am going to ask you to go back and deliberate on the question of murder in the first degree. I want you to come back to me and tell me if you agree or disagree on that issue․ Before you get to the other lesser included offenses, I want to find out if you have unanimously agreed on the original charge, which is murder in the first degree․ [T]ell me what the status is on that one charge before we go to the lesser ones.’ ” (Id. at pp. 327-328, 250 Cal.Rptr. 244, 758 P.2d 572.) When the jury came back with a verdict of not guilty on first degree murder, the court asked the jury to deliberate on second degree murder. (Id. at p. 328, 250 Cal.Rptr. 244, 758 P.2d 572.) The jury also deadlocked on that charge. (Ibid.)
The jury then sent a note to the court asking: “ ‘Can we find the defendant guilty of manslaughter without unanimously finding him not guilty of murder in the second degree?’ ” (Kurtzman, supra, 46 Cal.3d at p. 328, 250 Cal.Rptr. 244, 758 P.2d 572.) The court sent back a note reading: “ ‘No, you must unanimously agree on the second degree murder offense before considering voluntary manslaughter.’ ” (Ibid.) The jury returned a guilty verdict on second degree murder the next morning. (Ibid.) The Supreme Court in Kurtzman held this statement was error and the jury was entitled to consider the crimes in the order it chose. (Id. at p. 336, 250 Cal.Rptr. 244, 758 P.2d 572.)
In Olivas, supra, 248 Cal.App.4th 758, 203 Cal.Rptr.3d 842, the jury asked if it could consider an alternate count of forcible lewd conduct if it was “hung” as to the count of aggravated sexual assault, to which the trial court responded, “ ‘No.’ ” (Id. at p. 772, 203 Cal.Rptr.3d 842.) In Olivas, too, the appellate court held this statement was error. (Id. at pp. 774-775, 203 Cal.Rptr.3d 842.)
The Attorney General attempts to distinguish Olivas and Kurtzman on the ground that in both of those cases, the jury asked the court whether it could consider the lesser included offenses and the court said, “No.” In the present case, according to the Attorney General, the jury “simply told the court that ‘We need further instructions on what to do regarding the lesser crimes,’ ” and the court replied that unless the jury found defendant not guilty of the charged crimes it could not “consider” the lesser crimes. There is no substantive difference between the compared exchanges.
In this case, the trial court twice told the jury it could not “consider” the lesser included offenses unless it unanimously found defendant not guilty of sexual penetration of a child younger than 10 years of age. This was error. We therefore turn to the question of prejudice.
The Error Was Prejudicial.
The Attorney General argues that when a trial court improperly instructs the jury regarding its ability to consider lesser included offenses before acquitting a defendant of the charged crime, reversal is required only if the defendant establishes a reasonable probability that he or she would have received a more favorable result in the absence of the error. (Olivas, supra, 248 Cal.App.4th at p. 776, 203 Cal.Rptr.3d 842, citing People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) Defendant argues the appropriate standard for prejudice is that the error is harmless only if we can say, beyond a reasonable doubt, it did not contribute to the verdict. (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705.) Defendant relies on U.S. v. Jackson (9th Cir. 1984) 726 F.2d 1466, in which the Ninth Circuit held that an instruction regarding the jury's right to consider the charged crime and the lesser included offense in the order it chooses is necessary to “ ‘ensure[ ] that the jury will accord the defendant the full benefit of the reasonable-doubt standard.’ ” (Id. at p. 1470, quoting Beck v. Alabama (1980) 447 U.S. 625, 634, 100 S.Ct. 2382, 65 L.Ed.2d 392.)
When the jury asked the trial court about considering the lesser included offenses of counts 1 and 2, it advised the court that it was deadlocked 11 to one on the charged crimes. The jury also advised the court that further deliberations were unlikely to be helpful, and it needed further instruction regarding the definition of the term “genital or anal opening.” The court did not provide any further definition of that term before the jury reached verdicts on all counts. The element of sexual penetration distinguishes the charged crimes in counts 1 and 2 from their lesser included offenses; the jury was instructed that sexual penetration “means penetration, however slight, of the genital or anal opening of the other person.” (CALCRIM No. 1128.) In light of the jury's questions and statements, it is apparent that the issue on which the jury was stuck was whether defendant had penetrated the victim's genital or anal opening.
“The danger to the defendant of the charge requiring acquittal of the greater offense before the lesser offense is considered is clear: ‘If the jury is heavily for conviction on the greater offense, dissenters favoring the lesser may throw in the sponge rather than cause a mistrial that would leave the defendant with no conviction at all, although the jury might have reached sincere and unanimous agreement with respect to the lesser charge.’ ” (U.S. v. Jackson, supra, 726 F.2d at p. 1469.)
The Attorney General argues that because the written instructions contained the proper language regarding when the jury could consider the lesser included offenses, there can be no prejudice. The cases the Attorney General cites to support this argument are ones in which the trial court erred in its oral reading of the instruction, but provided the jury with a written copy of the instruction at or about the same time. (See People v. Wilson (2008) 44 Cal.4th 758, 803-804, 80 Cal.Rptr.3d 211, 187 P.3d 1041 [“[t]o the extent a discrepancy exists between the written and oral versions of jury instructions, the written instructions provided to the jury will control”]; People v. Osband (1996) 13 Cal.4th 622, 686-688, 55 Cal.Rptr.2d 26, 919 P.2d 640 [misreading jury instructions did not violate federal Constitution when correct instructions were provided to the jury in writing at the start of deliberations]; People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1113, 92 Cal.Rptr.2d 236 [“as long as the court provides accurate written instructions to the jury to use during deliberations, no prejudicial error occurs from deviations in the oral instructions”].)
The present case is different from the foregoing cases because here the trial court's oral misstatements of the law were made in direct response to the jury's question about what to do if it could not reach a verdict on the charged crimes in counts 1 and 2.
The photographic evidence admitted at trial showed an adult finger opening the genitalia of a young female child. (There is no dispute that the child in the photographs is the victim.) During his police interviews, defendant admitted using his fingers to spread the victim's outer genital area and possibly touching her vagina, but denied sexually penetrating her with his finger. Defendant also acknowledged sending an e-mail in which he stated, “Just the tip of my finger” went inside, but insisted that that statement was a “fantasy” and the act had never occurred.
The jury was instructed that in order to find defendant guilty on counts 1 and 2, the People must prove defendant engaged in an act of “penetration, however slight, of the genital or anal opening” of the victim. The jury was also instructed that attempted sexual penetration was a lesser included offense of counts 1 and 2, for which the People would have to prove defendant intended to commit an act of sexual penetration, and took a “direct but ineffective step toward committing” that act.2
Based on these circumstances, the only reasonable inference from the jury's request for further definition of the term “genital or anal opening,” when the jury was split 11 to one, was that one juror did not believe the People had proven sexual penetration. That juror might well have believed defendant had touched the victim's genital area inappropriately. But the jury was erroneously instructed not to “consider” the lesser included offenses until defendant was found not guilty of the charged crimes in counts 1 and 2. There is more than a reasonable probability that the outlying juror changed his or her vote to avoid a mistrial on counts 1 and 2, ensuring defendant would face punishment for his crimes. (See U.S. v. Jackson, supra, 726 F.2d at p. 1469.) If the trial court had not made the misstatements of law to the jury, it appears likely the jury would not have agreed unanimously to convict defendant of the charged crimes in counts 1 and 2.
We therefore cannot say beyond a reasonable doubt that, under the Chapman standard, the instructional error did not contribute to the verdict. Even under the Watson standard, there is more than a reasonable chance or abstract possibility of a different outcome in the absence of the trial court's instructional error. (People v. Campbell (2015) 233 Cal.App.4th 148, 165, 182 Cal.Rptr.3d 491.) The trial court's instructional error was prejudicial, and the convictions on counts 1 and 2 must be reversed.
In light of our reversal of counts 1 and 2 on the basis of instructional error, we need not address defendant's argument that the two consecutive sentences of 15 years to life on counts 1 and 2 constitute cruel and/or unusual punishment under the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution.
II. The Trial Court Did Not Err By Denying Defendant's Motion To Suppress His Statements To the Police.** [NOT CERTIFIED FOR PUBLICATION]
Defendant's convictions on counts 1 and 2 are reversed. Defendant's convictions on counts 3 through 7 are affirmed. Following issuance of the remittitur, if the People do not bring defendant to trial within the term prescribed by law on counts 1 and 2, the trial court shall resentence defendant on counts 3 through 7.
Appellant's petition for review by the Supreme Court was denied October 14, 2020, S264087.
1. CALCRIM No. 1128, with which the jury was instructed, reads in relevant part: “To prove that the defendant is guilty of [the] crime [of sexual penetration], the People must prove that: [¶] 1. The defendant engaged in an act of ․ sexual penetration. [¶] ․ [¶] Sexual penetration means penetration, however slight, of the genital or anal opening of the other person.”
2. The jury was instructed that simple assault and battery were also lesser included offenses of sexual penetration.
Moore, Acting P. and Goethals, J., concurred.
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