Opinion
F040182.
11-13-2003
THE PEOPLE, Plaintiff and Respondent, v. KENNETH DEON MONTEJANO, Defendant and Appellant.
John Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Carlos A. Martinez and Mathew Chan, Deputy Attorneys General, for Plaintiff and Respondent.
On January 30, 2002, appellant Kenneth Deon Montejano was convicted by a jury of eight counts of violating Penal Code section 288a, subdivision (b)(1), two counts of violating section 261.5, subdivision (c), and one count of violating section 289, subdivision (h). Three counts pertained to conduct that took place between June 1, 1990, and January 18, 1993, with Ramona P.; the other eight counts involved conduct in 1999 and 2000 with Elvie U. The counts involving Ramona P. were filed pursuant to section 803, subdivision (g).
References to code sections are to the Penal Code unless otherwise specified.
Based upon the holding of Stogner v. California (2003) ___ U.S. ___ (Stogner) , we reverse the convictions on the counts involving Ramona P. Regarding the remaining eight counts, we reject Montejanos claims of prejudicial instructional and evidentiary error. We will, however, remand for resentencing.
PROCEDURAL AND FACTUAL SUMMARY
Elvie
In 1999, Nancy Neal introduced her neighbor, Elvie U., to Montejano. Montejano was the community based police officer serving the Traver area. Elvie lied to Montejano about her age, claiming that she would turn 18 years of age in December of that year, when actually she would not be 18 until December 2000.
On June 13, 2000, between 1:30 p.m. and 2:00 p.m., Detective Klassen, of the Juvenile Sexual Assault Unit, and his supervisor, Sergeant Benas, arrived at Elvies home to investigate allegations of sexual activity between Elvie and Montejano. When questioned, Elvie denied that she had a sexual relationship with Montejano.
June 13, 2000, was the third time that Klassen had come to Elvies home to question her about her relationship with Montejano. After Klassen and Benas questioned Elvie at home for approximately 40 minutes, they took her to the police station for additional questioning. Upon arrival at the station, Klassen took Elvies picture and then he and Benas continued to question Elvie. While Klassen and Benas questioned Elvie, another officer, Detective Lara, went to question Elvies mother. At approximately 5:00 p.m., after an afternoon of questioning, Klassen and Benas taped an interview of Elvie.
At the conclusion of the taped interview, Klassen, Benas and Elvie returned to Elvies home, where the officers searched Elvies bedroom and bathroom. The search took 30 to 60 minutes. The police left around 7:00 p.m. to interview Elvies former friend, Alma S. After interviewing Alma, the officers returned to Elvies house around 8:30 p.m. to gather additional evidence.
After completing the search of Elvies bedroom and bathroom, the officers confronted Elvie. A taped interview of Elvie was conducted in the officers vehicle, which was parked in front of the house. The interview began at 9:48 p.m. and ended at 10:14 p.m.
During this second taped interview, Elvie reported that she and Montejano had gone to the Bay Area for a weekend in December 1999, during which she and Montejano engaged in sexual intercourse three times and orally copulated each other. Elvie also reported engaging in oral sex and sexual intercourse with Montejano at his house in Visalia during 2000.
In her trial testimony, Elvie denied any sexual relationship with Montejano. She maintained that Klassen and Benas took her to the police station without her parents permission; photographed her over her objection; searched her bedroom and bathroom without permission; and threatened to arrest her and take her to juvenile hall unless she admitted having a sexual relationship with Montejano.
Alma testified that she and Elvie first met Montejano while walking to Elvies boyfriends house. Elvie later told Alma that she had romantic feelings for Montejano and that he had given her presents. Alma stated that Elvie would cut classes to see Montejano, and she had seen Elvie writing her own excuse notes. Elvie used the name "Christopher" to refer to Montejano.
At one point, Elvie told Alma she was going to San Francisco with Montejano and asked Alma to lie for her in case her mother called. At this same time, Montejano told Neal he was going to San Francisco for the weekend and asked Neal to cover for him in case his girlfriend, Ramona, called. Alma testified that Elvie told her about the trip to San Francisco with Montejano in 1999, and that Elvie stated the two "had sex" during the trip. Elvie also told Katie W. about the trip to San Francisco with "Christopher."
Elvie established a pattern of going either to Almas or Katies house and then having Montejano paged to come and pick her up. Both Alma and Katie testified that Elvie asked them to lie for her if her mother or sisters called.
Elvies brother-in-law testified that he drove Elvie to Montejanos house in Visalia in September 2000 and Elvie spent the weekend there. Two of Elvies sisters testified to the times in 2001 that they drove Elvie to locations in Visalia or near Kingsburg on Friday nights or Saturday mornings, where Montejano was waiting for Elvie, and Elvie did not return until the end of the weekend.
Montejano testified that Elvie never lived with him and never spent any weekends with him. He denied ever having sex with Elvie. Montejano did admit, however, that Elvie paged him about five times a day and that he spoke to her daily. Montejanos telephone records showed that his phone calls with Elvie lasted anywhere from one-half hour to several hours.
Gabriel Bonilla testified that she lived with Montejano from July 2000 to February 2001 and that no one else lived with him at that time.
Ramona
Ramona was born on January 19, 1975, and was 27 years old at the time of trial. Ramona first met Montejano when she was 15 or 16 years old and working as a waitress at a diner where Montejano frequently ate. Montejano was 22 at the time. Ramona did not know he was a police officer until sometime later when he showed up at her house with her brother, who was a police dispatcher. Ramona testified that she and Montejano first developed a "romantic relationship" when she was 15 or 16 years old.
Ramonas father did not like Montejano, and Ramona was not allowed to see him. Sometimes, however, her sisters or her mother would assist her in meeting Montejano. Occasionally, she would "ditch" school and meet him at his apartment. Except for their first sexual encounter, Ramona testified that she would routinely orally copulate Montejano; Montejano occasionally orally copulated her; and sometimes Montejano would insert his finger into her vagina when they had sex.
After she turned 18, Ramona moved in with Montejano and lived with him until early 2000. Shortly after receiving information that Montejano had spent a weekend in the Bay Area with another woman, she and Montejano ended their relationship.
Ramonas father testified that he knew Ramona was involved with Montejano but did not know if they were having sex. He called the police department in 1991 and complained to a Sergeant Davis about the relationship.
Klassen interviewed Ramona three times in 2000. It was not until the third interview that Ramona admitted having a sexual relationship with Montejano before she turned 18 years of age. Ramona told another officer, Sergeant Cox, that Klassen was harassing her.
Montejano testified that he did not know Ramonas age when he first met her. He did not believe they had sex before she was 18. He conceded they might have had sex in November 1992, which was before Ramonas 18th birthday.
Convictions
The jury returned guilty verdicts on all 11 counts. At the sentencing hearing, the trial court rejected the recommendation that Montejano be granted probation and instead imposed a term of imprisonment.
DISCUSSION
Montejano challenges his convictions on numerous grounds: (1) instructional error in failing sua sponte to instruct the jury with CALJIC Nos. 2.71 and 2.71.5 and in instructing with the 1999 revision of CALJIC No. 2.50.01; (2) abuse of discretion in sustaining the prosecutions objections to numerous questions by defense counsel designed to expose witness bias; (3) abuse of discretion in denying probation; and (4) section 803, subdivision (g) does not extend the statute of limitations on the counts pertaining to his sexual relationship with Ramona.
I. Section 803
Section 803, subdivision (g)(1) provides that "a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim" of certain sexual offenses, including those specified in sections 288a and 289. This provision was enacted in 1993 and became effective January 1, 1994. (Stogner, supra, ___ U.S. at p. ___ .) (Stats. 1993, ch. 390, § 1, pp. 2224-2225.)
Montejano was charged with two counts of violating section 288a, subdivision (b) and one count of violating section 289, subdivision (h) with Ramona. The amended complaint and the information alleged that these offenses occurred "between the 1st day of June, 1990 and the 18th day of January, 1993...." Ramonas date of birth is January 19, 1975. The amended complaint, which first alleged the offenses against Ramona, was filed on June 5, 2001. The information was filed on October 30, 2001. Ramona spoke with law enforcement about her relationship with Montejano in May of 2001.
Prosecution of section 288a and section 289 offenses generally must commence within three years of the commission of the act that constitutes the offense. (§ 801.) Commencement of prosecution for a felony offense occurs when the indictment or information is filed. (§ 804, subd. (a).) Section 803, subdivision (g) tolls the statute of limitations set forth in section 801 by permitting a prosecution to be commenced at any time after the commission of the offense but within one year of a report to law enforcement by the victim, so long as there was substantial sexual conduct and independent corroborative evidence of that conduct. (§ 803, subd. (g)(2); Ream v. Superior Court (1996) 48 Cal.App.4th 1812, 1821 & fn. 7.)
Montejano asserts that section 803, subdivision (g) is unconstitutional when used to prosecute a defendant for offenses for which the statute of limitations expired prior to the January 1, 1994, effective date of section 803, subdivision (g). He is correct. In Stogner, the United States Supreme Court held that section 803, subdivision (g) violated both state and federal ex post facto clauses to the extent it authorized criminal prosecutions "that the passage of time had previously barred." (Stogner, supra, ___ U.S. at p. ___ .) In so holding, the United States Supreme Court disapproved the contrary holding of People v. Frazer (1999) 21 Cal.4th 737. (Stogner, supra, ___ U.S. at p. ___ .)
In Montejanos case, the information set forth three counts that alleged the commission of offenses against Ramona sometime between June 1, 1990, and January 18, 1993. Each count, however, alleged a single instance of either oral copulation (counts 9 and 10) or penetration with a foreign object (count 11). The verdict forms specified that the offenses set forth in these three counts were committed in "1990-93."
Stogner held that "a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution." (Stogner, supra, ___ U.S. at p. ___ [123 S.Ct. at p. 2461.) Therefore, if the offenses set forth in counts 9, 10 and 11 were committed in 1990, the statute of limitations expired prior to January 1, 1994, and application of section 803, subdivision (g) to these offenses violates the ex post facto clauses. (Stogner, supra, ____ U.S. at p. ___ .) Because Stogner did not invalidate section 803, subdivision (g), in all instances, if these offenses were committed in 1991 or after, then application of section 803, subdivision (g) merely constitutes an extension of an unexpired statute of limitations, which does not violate ex post facto clauses. (Stogner, supra, ____ U.S. at p. ___ .)
Criminal statutes of limitations are generally considered to be jurisdictional and may therefore be raised at any time. (People v. Bell (1996) 45 Cal.App.4th 1030, 1057.) Unlike assertions of double jeopardy, the Penal Code does not require a defendant affirmatively to plead a statute of limitations defense. (People v. Williams (1999) 21 Cal.4th 335, 344.) To the extent Montejano was obligated to challenge application of section 803, subdivision (g) in the trial court, he did so first by way of a motion to dismiss the three counts and later by motion for acquittal at the close of the prosecutions case.
It is well settled that the People bear the burden to prove by a preponderance of the evidence that the prosecution began within the statutorily prescribed time period. (People v. Zamora (1976) 18 Cal.3d 538, 565, fn. 27; People v. Lopez (1997) 52 Cal.App.4th 233, 248.) This court has held that the prosecution fails to meet its burden where the evidence allows for a finding that the offense occurred either within or beyond the statute of limitations and the jury was not instructed regarding the statute of limitations. (People v. Angel (1999) 70 Cal.App.4th 1141, 1147; People v. Gordon (1985) 165 Cal.App.3d 839, 852.)
Although the jury did receive one instruction regarding section 803, subdivision (g), that instruction required the jury to determine only whether (1) Ramona was a victim of an act of digital penetration and an act of oral copulation while under the age of 18 years, and (2) whether there was independent evidence that clearly and convincingly corroborated Ramonas allegations. The jury was not asked to determine whether the acts of oral copulation and digital penetration occurred within the time period that would place them within the statute of limitations.
The facts of People v. Angel, supra, 70 Cal.App.4th 1141 are substantially similar to this case. In Angel, the victims testimony established that the charged offenses could have occurred either before or after the statute of limitations expired. The prosecution never proved that the offenses could only have occurred within the applicable statute of limitations period. The jury in Angel was instructed that they had to agree on the particular act constituting the offense, but they were not instructed on the statute of limitations. (Id. at p. 1147.) This court held that under these facts, the prosecution had failed to meet its burden. (Ibid.)
The evidence presented at trial would have allowed the jury to find that Montejano committed one of several acts of oral copulation and digital penetration with Ramona, either in 1990 or at a later date. We cannot determine, however, whether the jury found the acts alleged in counts 9, 10 and 11 occurred in 1990, or at some later point in time, because the verdict form specified only "1990-93" and the jurors did not receive any instructions directing them to make the necessary findings that the acts occurred within the applicable statute of limitations. Therefore, the convictions on counts 9, 10 and 11 are fatally defective. (People v. Angel, supra, 70 Cal.App.4th at p. 1147.)
Because we cannot tell whether the jury convicted Montejano of those offenses shown to have been committed within the applicable statute of limitations, as opposed to those acts outside the statute of limitations, the convictions must be reversed with directions to the trial court to dismiss these counts, prepare an amended abstract of judgment and recalculate Montejanos sentence. (People v. Angel, supra, 70 Cal.App.4th at p. 1151.)
Because we conclude that prosecution of Montejano for counts 9, 10 and 11 is barred by the ex post facto clauses of the state and federal Constitutions pursuant to Stogner, we need not resolve Montejanos claim that prosecution on these counts also violates procedural due process rights.
II. Instructional Issues
Montejano contends the trial court erred when it failed to sua sponte instruct the jury with CALJIC Nos. 2.71 and 2.71.5. He also claims there was error in the giving of the 1999 version of CALJIC No. 2.50.01.
The People withdrew their request to have the jury instructed with CALJIC No. 2.71.5.
CALJIC Nos. 2.50.01 and 2.71.5
The California Supreme Court has definitively resolved, adversely to Montejano, the challenges he raises to CALJIC Nos. 2.50.01, evidence of other sexual offenses, and 2.71.5, adoptive admission — silence, false or evasive reply to accusation. In People v. Reliford (2003) 29 Cal.4th 1007, the California Supreme Court addressed CALJIC No. 2.50.01 stating, "we find no constitutional error in the 1999 version of the instruction...." (Reliford, supra, at p. 1016.) People v. Carter (2003) 30 Cal.4th 1166 held that the trial court has no sua sponte duty to instruct with CALJIC No. 2.71.5. (Carter, supra, at p. 1198.) Therefore, we reject as without merit Montejanos contentions with respect to these instructions.
CALJIC No. 2.71
When evidence is admitted establishing that the defendant made oral admissions, the trial court ordinarily has a duty to instruct the jury with CALJIC No. 2.71, admission — defined. (People v. Slaughter (2002) 27 Cal.4th 1187, 1200.) CALJIC No. 2.71 is a cautionary instruction that tells the jury to view evidence of an admission with caution. (People v. Shoals (1992) 8 Cal.App.4th 475, 498.)
Montejano identifies five "alleged admissions" which, when coupled with other evidence, could be viewed as inculpatory.
In reviewing the list of alleged admissions identified by Montejano, we are mindful of the California Supreme Courts statement that trial courts are not to be saddled with the duty to review the entire record at trials end in search of adoptive admissions. (People v. Carter, supra, 30 Cal.4th at p. 1198.) The same could be said of Montejanos "alleged admissions."
Admissions are out-of-court statements tending to prove guilt. (People v. Slaughter, supra, 27 Cal.4th at p. 1200.) None of the alleged admissions identified by Montejano are direct admissions of guilt; they could be viewed as having both inculpatory and an exculpatory value. Under these circumstances, giving the instruction might have caused the jury to "place undue significance on bits of testimony that the defendant would prefer it not examine so closely." (See People v. Carter, supra, 30 Cal.4th at p. 1198.)
In any event, if the trial court erred by not instructing sua sponte with CALJIC No. 2.71, Montejano could not have been prejudiced by the failure. The purpose of CALJIC No. 2.71 is to assist the jury in determining if the statement was in fact made by the defendant. (People v. Slaughter, supra, 27 Cal.4th at p. 1200.) In Montejanos case, the jury was instructed with CALJIC No. 2.20, believability of witness, CALJIC No. 2.21.1, discrepancies in testimony, CALJIC No. 2.21.2, witness willfully false, and CALJIC No. 2.22, weighing conflicting testimony. (People v. Shoals, supra, 8 Cal.App.4th at p. 499.) All of these instructions aid the jury in evaluating a witnesss testimony. Therefore, any failure to instruct with CALJIC No. 2.71 was not prejudicial. (Shoals, supra, at p. 499.)
III. Evidentiary Rulings
Montejano contends the trial court abused its discretion and violated his Sixth Amendment right to confront witnesses when the court sustained objections to his cross-examination of three witnesses, Ramona, Elvie and Benas. Montejano, however, did not object on the basis of his Sixth Amendment rights at trial and therefore the issue is not preserved for appeal. (People v. Hines (1997) 15 Cal.4th 997, 1035.)
Alternatively, Montejano asserts that defense counsel rendered ineffective assistance for (1) failing to preserve the issue of violation of his Sixth Amendment rights; (2) failing to move to strike Elvies statement that she had an abortion; and (3) failing to make an offer of proof after the trial court sustained an objection to an inquiry regarding a demotion of Benas. Because we are reversing the convictions on counts 9, 10 and 11, we need not address evidentiary issues pertaining to Ramonas testimony.
Initially, we note that claims of ineffective assistance of counsel are more appropriately raised in a petition for writ of habeas corpus, where counsel is provided an opportunity to explain his or her actions or failure to act. (People v. Carter, supra, 30 Cal.4th at p. 1211.)
When presented with a claim of ineffective assistance of counsel by way of appeal, a reviewing court presumes that counsels performance fell within a wide range of professional competence and that counsels actions or inactions can be explained as a matter of trial tactics. Therefore, Montejano bears the burden of proving constitutionally inadequate assistance of counsel. (People v. Carter, supra, 30 Cal.4th at p. 1211.) If the record on appeal sheds no light on why counsel acted or failed to act, an appellate claim of ineffective assistance of counsel must be rejected, unless counsel was asked for an explanation and failed to provide one or there is no possible satisfactory explanation. (Ibid.)
Montejanos challenges to defense counsels representation are directed at evidentiary matters. Failure to object to evidence or raise other evidentiary issues is generally a matter of trial tactics, which appellate courts will not second-guess. (People v. Carter, supra, 30 Cal.4th at p. 1209.) We decline to second-guess defense counsels trial tactics when counsel has not been provided an opportunity to explain his actions or failure to act. Therefore, Montejano has failed to meet his burden of establishing constitutionally ineffective assistance of counsel.
IV. Denial of Probation
Montejano argues that the trial court abused its discretion in denying him probation.
The probation department prepared a lengthy report setting forth numerous factors it considered in reaching its recommended sentence of a four-year prison term, suspended, with one year of jail time and felony probation. Although the probation report has a signature block for the sentencing judge to sign the report indicating that the judge has reviewed and considered the report, in Montejanos case the report does not bear the signature of the judge.
At the sentencing hearing, the judge asked for comments from counsel before pronouncing sentence. The prosecutor argued for a denial of probation and the defense argued for probation. At the conclusion of the argument, the court stated that it was "particularly concerned" that Montejano had "perjured himself" when he took the stand and denied having sexual relations with either Ramona or Elvie prior to their 18th birthday and that Montejano had violated a no-contact order. The court thereafter stated Montejano had been charged not "merely [with] statutory rape, hes charged with child molesting." Defense counsel objected to the courts comments as a mischaracterization. The court then stated Montejano had engaged in "other unnatural acts" and denied probation.
We will consider defense counsels objection to the courts comments at sentencing as sufficient to preserve any sentencing issues for purposes of appeal. (People v. Scott (1994) 9 Cal.4th 331, 355-356.)
The trial court is not bound to follow the recommendation of the probation office but, in determining whether to grant or deny probation, it is bound to consider all facts bearing upon the offenses and the defendant. (People v. Downey (2000) 82 Cal.App.4th 899, 910.) Facts bearing upon the offenses and the defendant were set forth in the probation report. The trial court did not expressly state it had read the probation report, but it did ask for comments on the report. In every felony proceeding, a probation report must be prepared and must be read by the sentencing judge. (People v. Otto (2001) 26 Cal.4th 200, 213.) The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance of the evidence. (People v. Lewis (1991) 229 Cal.App.3d 259, 264.)
California Rules of Court, rule 4.414 sets forth the factors that must be evaluated in determining whether to grant or deny probation. Several factors set forth in the probation report, which may have been used in part as a basis to deny probation, are no longer applicable and others are not supported by the record.
Because the three counts pertaining to Ramona must be reversed as time-barred, Montejano no longer stands convicted of offenses against multiple victims. Nor can the seriousness of the crime be elevated because of convictions against multiple victims. As for the factor stating that Montejano inflicted emotional injury on his victims, Elvie maintained that it was the investigation itself, not any actions by Montejano, that traumatized her. Ramona made conflicting statements, first claiming she suffered extreme emotional duress because of the investigation and trial, but also accusing Montejano of manipulating her.
After hearing argument from counsel, the trial court indicated that it was relying primarily on factors not set forth in the probation report to deny probation, including alleged violation of a no-contact order, alleged perjury during the trial, the courts view of Montejanos conduct as child molestation, and purported other "unnatural" and unspecified acts. None of these alleged circumstances was set forth in the probation report, which raises due process concerns regarding notice and an opportunity to respond. (People v. Axtell (1981) 118 Cal.App.3d 246, 258-259.)
There is no evidence in the record to indicate that Montejano violated a no-contact order; nor was Montejano provided any notice that this alleged violation was a circumstance being considered by the trial court for denial of probation. Nor is there any indication of what the trial court was referring to when it articulated "other unnatural acts" as a circumstance warranting denial of probation. Again, Montejano had no notice of the courts reliance on this factor. Furthermore, although the court characterized Montejanos conduct as child abuse, a minor over the age of 14 who voluntarily engages in intercourse is not necessarily a victim of sexual abuse. (County of San Luis Obispo v. Nathaniel J. (1996) 50 Cal.App.4th 842, 845.) There was virtually no evidence that Montejano engaged in any sexual activity with Ramona or Elvie that was other than consensual.
With respect to the trial courts comments regarding the alleged perjury by Montejano, perjury may be considered in imposing a sentence under certain circumstances, even if a defendant was not charged with and convicted of that offense. First, the sentencing judge must be very sure that the defendants testimony contained willful and material falsehoods. Second, the permissible evaluation process must not be confused with the impermissible practice of increasing the sentence in order to punish for perjury or subornation of perjury. (In re Perez (1978) 84 Cal.App.3d 168, 172.)
Based upon all of the above sentencing concerns, and because counts 9, 10 and 11 are reversed, we will remand for resentencing.
DISPOSITION
The convictions on counts 9, 10 and 11 are reversed with directions to the trial court to dismiss these counts. The matter is remanded for resentencing. In all other respects, the judgment is affirmed.
WE CONCUR: DIBIASO, Acting P.J. and VARTABEDIAN, J.