Opinion
E078504
04-12-2023
THE PEOPLE, Plaintiff and Respondent, v. JESSE PHINIOUS HOLMES, JR., Defendant and Appellant.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel, and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF1803468 Randall S. Stamen, Judge.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel, and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MENETREZ. J.
A jury convicted Jesse Phinious Holmes, Jr., of sexually abusing his niece, Jane Doe. The jurors found him guilty of (1) three counts of engaging in sexual penetration with a child age 10 or younger and (2) three counts of forcible lewd acts on a child under age 14. (Pen. Code, §§ 288, subd. (b)(1), 288.7, subd. (b); unlabeled statutory citations refer to this code.) On appeal, Holmes argues that the court erred by denying his new trial motion based on Brady v. Maryland (1963) 373 U.S. 83 (Brady). He also argues that there was insufficient evidence that he used force, violence, duress, menace, or fear of bodily injury in connection with the lewd act counts. Lastly, he argues that the court committed instructional error in connection with the sexual penetration counts. We affirm.
BACKGROUND
I. Doe's Trial Testimony About the Abuse
Doe was born in April 2005. She has two younger brothers. Holmes, her maternal uncle, is nine years older than she is. Doe was 16 years old when she testified at trial.
Holmes lived with Doe's family when she was around six or seven years old, so she saw him daily. Holmes would frequently lie down on the couch and tell her to roll down his body. He made her roll onto his penis. Her brothers were sometimes in the room playing video games, but they never looked in the direction of the couch. Doe started to feel uncomfortable with the rolling around age eight or nine, when she began learning about inappropriate touching from her parents and at school.
Doe did not tell anyone about the rolling on the couch because she was scared of Holmes. Holmes often babysat Doe and her brothers. He was bigger and "way older than" she was, and he "had control over" her. She got "in trouble for the smallest things" if she did not listen to Holmes. Holmes would tell her father, who was strict with her.
When Doe was nine years old, she slept in the same bed with Holmes and her brothers. Around that time, he started touching Doe and making her touch him. The incidents occurred frequently for years. Holmes would move Doe to the side of the bed away from her brothers, grab her hand, and make her rub his erect penis up and down until he ejaculated. She was asleep but woke up when she felt him moving her. Her brothers were always asleep when it happened.
Holmes also touched her vagina, both under and over her clothes. He pulled her underwear down to the middle of her thighs and penetrated her vagina with his finger, causing her pain. He penetrated her multiple times, more than three times when she was nine years old; she remembered that feeling of pain. He also rubbed her vaginal area, mostly over her clothes, without penetrating her. A few times he also pulled her close while he was lying behind her and rubbed his penis on her buttocks.
At the preliminary hearing in this case, Doe testified that Holmes did not penetrate her.
Doe felt uncomfortable and mad while Holmes was doing these things. She did not try to stop him, but on one occasion she ran to her parents' room and told them that she had a nightmare. She did not tell them that Holmes had done something to her, because she was scared of him. He was "way taller" and stronger than she was. She again explained that "he had control over [h]er," and she was scared that he would lie, complain to her father about her, and get her into trouble. For instance, Holmes once claimed that she had "an attitude," and he threatened to call her father. He ended up calling her father, who said he would "deal" with her when he got home.
Holmes abused Doe for the last time when the family traveled to Las Vegas in July or August 2015. Doe, her mother, her brothers, and Holmes went to Las Vegas for her brother's basketball tournament. The family's hotel room had a bedroom and a separate living room. Doe's mother and brothers slept in the bedroom, and Doe and Holmes slept on the pullout couch in the living room. While they were in Las Vegas, Holmes rubbed her vaginal area, penetrated her vagina with his finger, and rubbed his penis on her buttocks. Doe again testified that Holmes had control over her, and she knew that she could have gotten in trouble if she did not do what he wanted.
II. Doe's Disclosures and the Investigation
Holmes still lived with the family for "a little bit" after the Las Vegas trip and then moved out. Doe told her brother about the abuse after Holmes moved out, and she asked her brother not to tell anyone. She decided to tell her brother because she knew that Holmes was not returning and would no longer be able to hurt her. Her brother seemed not to understand what she said or did not believe her. The same day, she told her mother, but it did not "come out right," and she only remembered crying.
Doe later disclosed the abuse to a school counselor. In January 2016, a social worker and a patrol officer interviewed Doe at her school. Doe told the social worker that Holmes had penetrated her vagina and anus with his fingers. The interview was brief by design. The goal was merely to determine whether a crime had been committed and ask as few questions as possible. The detectives in the sexual assault and child abuse unit wanted a more in-depth interview to be conducted by a forensic interviewer with the Riverside County Child Assessment Team (RCCAT).
The People played the video of Doe's RCCAT interview for the jury. Aurelio Melendrez is a former detective with the Riverside Police Department sexual assault and child abuse unit. Melendrez was assigned to Doe's case and observed her RCCAT interview, which took place in January 2016.
Doe told the interviewer that Holmes "mess[ed]" with her when she was asleep many times. She estimated that it happened once per week. She would feel somebody moving her and awaken with her pants down. Holmes moved his "private part" around on her buttocks. Holmes also put his finger inside her "vajayjay" and moved his finger around, which hurt and made her mad. In addition, he grabbed her hand and put something in it, but she did not know what that thing was. She felt wetness and saw something white and "gooey" on her hands when she went to wash them. She "kick[ed] away" or moved away and ran to her parents when he touched her. She told them that she was scared but acted "like nothing happened." Doe did not tell them what Holmes had done because she thought she would get in trouble. The incidents started when she was six or seven years old and stopped when she was nine years old.
Melendrez did not refer Doe for a physical exam because of the amount of time that had passed since the last reported incident of abuse. He did not consult a nurse before deciding whether to seek a physical exam. The purposes of an exam include detecting physical injuries, collecting DNA evidence, and testing for sexually transmitted diseases. Melendrez might have sought a physical exam if Doe's statements had indicated that sexual intercourse had occurred or that she had sustained a physical injury.
Melendrez did not attempt a pretext phone call, which is another investigative tool. The victim or a family member has a recorded call with the suspect to try to elicit incriminating statements. Melendrez did not set up a pretext call because neither Doe nor her parents wanted to participate.
Melendrez visited the family's home after the RCCAT interview. He did not document his visit to the scene. He described the scene as changed in that the family had moved furniture since the abuse had occurred, and "the scene did not look the same." Melendrez did not ask whether the family still had the mattress that Doe shared with Holmes, and he did not take any special equipment to look for bodily fluids on the mattress, even though that equipment was available. He admitted that the failure to document his visit to the crime scene was "an oversight" and was not his common practice. He also acknowledged that if he had documented his visit, it would have been easier for him to recall how the scene had changed.
Melendrez attempted to interview Holmes after the RCCAT interview, but Holmes did not return any of his phone calls, and he was unable to find Holmes at home. He also did not document his attempts to contact Holmes. Melendrez did not recall how many times he went to Holmes's home. Doe's parents were not helpful or cooperative when he was trying to find Holmes, although Doe's mother gave him Holmes's phone number. He did not try to find another phone number for Holmes.
Doe did not disclose the abuse in Las Vegas during her RCCAT interview or at the preliminary hearing in this case. She first disclosed the Las Vegas incident in 2021, several months before trial. The prosecutor, the investigator from the district attorney's office, and Melendrez had a "meet and greet" with Doe. They asked Doe what was important about Las Vegas. She had mentioned Las Vegas in prior statements, but they were unsure about what had happened there, if anything. Doe told them that Holmes touched her over the clothes, touched "the bottom of the vagina," and made her touch his penis, but she was unable to clarify or give them details because she started crying. Doe was cheerful, lighthearted, and engaging before they asked her about Las Vegas. But once she provided some basic information about Las Vegas and the investigator began to ask more questions, Doe became visibly upset and shut down. The investigator stopped the interview for that reason, not because she believed that Doe had disclosed all of the pertinent information.
Doe testified that she always tried her best to tell the truth from her memory of the events, whether that was at trial, at the preliminary hearing, or during the forensic interview. She also said that her memory was better at trial than it was at the preliminary hearing (in 2019) or in 2016. She was not thinking of the abuse as much in 2019. She had been thinking about it more in the year before trial, so much so that she was "overwhelmed thinking about it" and had contemplated suicide.
III. Relevant Procedural Background
The People charged Holmes with three counts of engaging in sexual penetration with a child age 10 or younger and three counts of forcible lewd acts on a child under age 14. Doe turned 10 years old on April 15, 2015. The court instructed the jurors that the alleged "crime[s] occurred on or about 4/15/2014 through 4/14/2015 and 4/15/2014 through 8/31/2015. The People are not required to prove that the crime took place exactly on that day but only that it happened reasonably close to that day." (See CALCRIM No. 207.)
As noted, the jury found Holmes guilty on all six counts. Holmes moved for a new trial on the ground that the People had committed Brady error. He argued that the People had suppressed impeachment evidence consisting of two civil actions filed against Melendrez. According to defense counsel's declaration in support of the motion, she had recently heard about the actions from another defense attorney. The public defender's writs and appeals department then found the two actions "in imaging."
Holmes's moving papers included the operative complaints and dockets in both actions, as well as a request for dismissal in one action. The first action was brought in April 2017 by a parent whom the Riverside County Department of Public Social Services had investigated for alleged child abuse. The parent alleged that Melendrez and numerous other government employees violated her civil rights during the investigation. As to Melendrez specifically, she alleged that he threatened her with arrest, criminal prosecution, and adverse consequences to her career when she refused to enroll in parenting classes and refused to admit that she had physically abused her child. In May 2019, the court granted the parent's request to dismiss the action against Melendrez with prejudice.
The second action was brought in February 2018 and involved a real property dispute. According to the operative complaint, the plaintiff entered into an agreement to purchase the property at issue, but the deal fell apart because of Melendrez's alleged interference. Specifically, Melendrez allegedly threatened the seller with criminal prosecution if the seller did not sell the property to Melendrez instead of the plaintiff. The operative complaint alleged causes of action against Melendrez for intentional interference with contract, intentional interference with prospective economic advantage, and quiet title. According to the docket, in December 2018 the court granted the plaintiff's request to dismiss the action with prejudice.
The court denied Holmes's new trial motion. It ruled that the People had suppressed the evidence within the meaning of Brady, because Melendrez was an agent of the People and knew about the two civil actions. The court also ruled that the evidence of the two lawsuits was favorable because Holmes could have used them to impeach Melendrez. However, the court concluded that the evidence was not material. The court observed that plenty of evidence corroborated Melendrez's testimony about Doe's abuse; Doe testified in detail about it, and the jurors watched her RCCAT interview, which was also detailed. The court reasoned that "based on the totality of the circumstances, the civil suits and the knowledge of them do not reasonably undermine the confidence and the outcome of the trial in this matter."
The trial court sentenced Holmes to a total indeterminate term of 45 years to life in prison, plus a determinate term of 15 years.
DISCUSSION
I. Motion for New Trial Based on Claimed Brady Violation
Holmes argues that the trial court erred by denying his new trial motion based on Brady error. The argument lacks merit.
Under Brady "and its progeny, the prosecution has a constitutional duty to disclose to the defense material exculpatory evidence, including potential impeaching evidence. The duty extends to evidence known to others acting on the prosecution's behalf, including the police." (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 709.) "There are three elements to a Brady violation: (1) the state withholds evidence, either willfully or inadvertently, (2) the evidence at issue is favorable to the defendant, either because it is exculpatory or impeaching, and (3) the evidence is material." (People v. Lewis (2015) 240 Cal.App.4th 257, 263 (Lewis).) For Brady purposes, "evidence is 'material' only if it is reasonably probable a prosecution's outcome would have been different had the evidence been disclosed." (Johnson, supra, at p. 711.) "Put another way, the defendant must show that 'the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. '" (Lewis, supra, at p. 263.)
We independently review the court's ruling regarding the elements of a Brady violation. (People v. Salazar (2005) 35 Cal.4th 1031, 1042.) We review the court's denial of a new trial motion for abuse of discretion. (People v. Ochoa (1998) 19 Cal.4th 353, 473.)
The court did not err by rejecting Holmes's claim of Brady error. Assuming that the People withheld evidence of the two actions against Melendrez, and assuming that the impeachment value of the actions rendered them favorable to the defense, the evidence was not material. It is not reasonably probable that Holmes would have achieved a more favorable result if the civil actions had been disclosed.
Holmes's primary defense was that Doe lied about the abuse. In closing argument, defense counsel focused largely on inconsistencies in Doe's statements and other problems with her testimony in an attempt to show that she lacked credibility. Counsel also argued that there was a lack of corroborating evidence. In connection with that point, she noted that Melendrez failed to refer Doe for a physical exam, arrange a pretext call, ask about the mattress, and interview Holmes. She argued: "[T]he point is there is an opportunity to look for forensics. There is an opportunity to consult a medical professional. There is an opportunity to try to get someone to admit if they had done something wrong or let them deny it. And [Melendrez] let that case sit on his desk for two and a half years, and we have nothing else because there is no corroboration for this. There's no other witnesses either. So my client is supposed to have been molesting his niece for years, but yet it just sits on [Melendrez's] desk for two and a half, and there's nothing to show for it. Where's the urgency in that if these allegations are true?" In rebuttal, the prosecutor acknowledged that "perhaps" Melendrez's "investigative abilities" in this case "weren't the best," but that did "not mean that [Doe] was not telling . . . the truth from the stand."
Holmes argued in the alternative that if the jurors believed he had committed a crime, then they should consider the lesser offenses (attempted sexual penetration and nonforcible lewd acts).
The case thus turned on whether the jurors found Doe credible. The civil actions against Melendrez would have added nothing to the juror's assessment of Doe's credibility. First, the lawsuits were dismissed with prejudice. There was no showing that the plaintiffs in those cases proved any of the allegations against Melendrez, so any impeachment value they had was minimal. Indeed, their impeachment value was so minimal that the court would have acted well within its discretion if it had excluded evidence of the allegations under Evidence Code section 352. (People v. Sapp (2003) 31 Cal.4th 240, 289-290 [trial court did not abuse its discretion by excluding evidence of unproven allegations that prosecution witness committed fraud].)
Second, even if the jurors credited the allegations that Melendrez used his position as a law enforcement officer to threaten people, his claimed misconduct would not have rendered Doe less credible. Holmes argues that the allegations in the civil actions "might have" shown that Melendrez "did not take his job seriously and was not trustworthy in the way he handled investigations," which "might be a basis for reasonable doubt as to the accuracy of the conclusions that could be drawn around what happened to Doe." But Holmes does not explain how that would be the case.
Third, to the extent that the jurors could reasonably infer from the civil actions that Melendrez mishandled this investigation, the evidence of the civil actions was cumulative. (People v. Dickey (2005) 35 Cal.4th 884, 908 (Dickey) [undisclosed evidence that was favorable to the defendant because of its impeachment value was nevertheless immaterial because it was cumulative].) Melendrez testified about the steps he failed to take in the investigation, and defense counsel made use of that testimony to argue that there was no evidence corroborating Doe's statements. The civil actions would have added little to Melendrez's acknowledged failure to develop or find evidence beyond Doe's statements. In short, the undisclosed evidence does not "'put the whole case in such a different light as to undermine confidence in the verdict. '" (Lewis, supra, 240 Cal.App.4th at p. 263.) It therefore was not material.
Holmes argues that the court abused its discretion because its observations about the evidence corroborating Melendrez's testimony did not make sense. He contends that the central issue with respect to Melendrez was whether the detective adequately investigated the case, and there was no evidence corroborating Melendrez's assertions that he made appropriate investigative decisions. The argument is unpersuasive. A fair reading of the court's comments shows that it properly considered the totality of the record and concluded that it was not reasonably probable the undisclosed evidence would have affected the verdict. That was the correct standard. (Dickey, supra, 35 Cal.4th at pp. 907-908.) In any event, we independently review the court's ruling, not its reasoning, and we may affirm on any correct ground. (People v. Battle (2021) 11 Cal.5th 749, 800.) As already explained, the court correctly ruled that the undisclosed evidence was not material.
For all these reasons, the court did not err by rejecting Holmes's claim of Brady error. It follows that the court did not abuse its discretion by denying Holmes's new trial motion.
II. Sufficient Evidence of Forcible Lewd Acts
Holmes argues that the record does not contain substantial evidence that he used force, violence, duress, menace, or fear of injury to commit lewd acts on Doe. We disagree.
Section 288, subdivision (b)(1), "makes it a felony for any person to commit a lewd act upon a child under the age of 14 years 'by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. '" (People v. Leal (2004) 33 Cal.4th 999, 1004.) Duress means "'a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.'" (Ibid.)
"The very nature of duress is psychological coercion." (People v. Cochran (2002) 103 Cal.App.4th 8, 15 (Cochran), disapproved on another ground by People v. Soto (2011) 51 Cal.4th 229, 248.) "The fact that the victim testifies the defendant did not use force or threats does not require a finding of no duress." (Cochran, supra, at p. 14.) Threats may be implied by conduct. (People v. Thomas (2017) 15 Cal.App.5th 1063, 1074.) Moreover, the totality of the circumstances should be considered '"in appraising the existence of duress.'" (Cochran, at p. 14; see id. at pp. 13-14.) Relevant factors include the age of the victim, a disparity in size between the victim and the defendant, the victim's relative physical vulnerability, and the victim's relationship to the defendant. (Id. at p. 14.) "A threat to a child of adverse consequences . . . may constitute a threat of retribution and may be sufficient to establish duress, particularly if the child is young and the defendant is her parent." (Id. at p. 15.)
"'In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-evidence that is reasonable, credible and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" (People v. Nelson (2011) 51 Cal.4th 198, 210.) "'"[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.] We do not reweigh evidence or reevaluate a witness's credibility.'" (Ibid.)
The record here contains substantial evidence that Holmes used duress to commit lewd acts on Doe. Holmes was her uncle and lived with her family for several years, and he often babysat Doe and her brothers. Doe was young when the charged acts occurred-nine and 10 years old. Holmes was bigger, stronger, and nine years older, and she was scared of him. At several points, she said that she did not disclose the abuse or try to stop him because he had control over her. She explained that her father was strict, and she feared that Holmes would lie to her father about her behavior, getting her into trouble. The combination of the close familial relationship between Doe and Holmes, the disparity in size and age between them, his position as an authority figure who babysat her, and his power to get her into trouble with her father was sufficient to show duress. The jury could reasonably infer from all of that evidence that Doe acquiesced in the abuse only because of the threat of force, danger, hardship, or retribution implied by his physical and psychological dominance and authority within the family.
In sum, substantial evidence supports a finding of duress, so Holmes's challenge to his conviction for forcible lewd acts fails.
III. Jury Instruction on Date in Connection with the Sexual Penetration Counts
In his opening brief, Holmes argues that the court erred when it instructed the jury on the date range for the charges. The court instructed the jury that the People had to prove the crimes occurred on or about April 15, 2014, through August 31, 2015. Holmes claims that the court erred because that instruction permitted the jurors to find that he committed sexual penetration after Doe turned 10 in April 2015, and her age (10 or younger) was an element of the offense. (§ 288.7, subd. (b).) But Holmes abandons the argument in his reply brief, and rightly so. For purposes of the sexual penetration count, "'10 years of age or younger' . . . is another means of saying 'under 11 years of age.'" (People v. Cornett (2012) 53 Cal.4th 1261, 1264.) Doe would have been 10 years old (and under 11) in August 2015, so there was no error.
In his reply brief, Holmes makes a slightly different argument. He contends that the court erred by instructing the jury that the alleged crimes occurred "reasonably close" to the date range, given that Doe's age was an element of the offense. Assuming that this was error, it was harmless under any standard. There was no evidence that Holmes abused Doe when she was 11 years old or older. The last reported incident occurred in August 2015, eight months before her 11th birthday. Thus, there was no chance whatsoever that the jury relied on events outside the date range required by the statute.
For these reasons, we reject Holmes's challenge to the jury instruction.
DISPOSITION
The judgment is affirmed.
We concur: SLOUGH, Acting P. J., FIELDS J.