Opinion
A137282
09-24-2014
THE PEOPLE, Plaintiff and Respondent, v. JEAN PAUL BOROWIEC, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. SCR 596709)
A jury convicted defendant Jean Paul Borowiec of multiple sex offenses against his brother's three children. (Pen. Code, §§ 288a, subd. (b)(2), 288, subd. (a), 288.5, subds. (a), (c)(1), 289, subd. (i).) He is serving 22 years in prison.
All further section references are to the Penal Code, except as noted.
Defendant contends the trial court erred in denying his motion to admit evidence that one of the alleged child victims masturbated with a young cousin and sent text messages to another cousin about the child's sexual identity. (Evid. Code, § 782.) Defendant offered the evidence to impeach the child's credibility, contending the child had a motive to fabricate the molestation to divert attention from his own behavior and used his "influence" over younger siblings to make them lie as well. Defendant also contends jury instructions failed to insure unanimity on several counts concerning the child, his nephew J. (counts 7, 8, 10, and 13). We find no merit to the contentions and shall affirm the judgment.
Statement of Facts
In 1996, brothers J. and Z. and their sister R. moved into their paternal grandparents' Petaluma home. The children's father was in prison and their mother unable to care for them due to substance abuse. Defendant is the brother of the children's father. Defendant was 24 years old in 1996. He lived in the Petaluma house during some of the time the children resided there and, after moving out, visited frequently. Continuous sexual abuse of Z.
The jury found defendant committed continuous sexual abuse of Z. from 1997 through 2004, when the boy was under the age of 14 (count 1). (§ 288.5, subd. (a).) The jury also found the offense included substantial sexual conduct. (§ 1203.066, subd. (a)(8).) Given the limited nature of the issues raised on appeal, we provide only a brief summary of the evidence relating to this count.
Z. was born in 1990. Z. testified defendant first molested him when he was about six years old. Z. was lying on the living room couch with defendant watching television or "just hanging out" when defendant touched Z.'s penis, first rubbing Z.'s crotch over his clothes then reaching down the boy's pants and stroking his penis. Z. said similar incidents happened frequently: "whenever he would come over, or he would come to me, I kind of sometimes felt like I knew what it was going to be about." Z. testified about another incident when he was about six years old. Defendant asked Z. to "massage" his back by stepping on defendant's back as he lay on the floor with his pants pulled halfway down. Z. stepped on defendant's back. Defendant then rolled over with an erect penis, "grabbed" Z's hand and put it on his penis to stroke it. Defendant ejaculated. Z. could not remember how old he was at the time of the last incident but he remembered the molestations lasting at least through the sixth grade. In the sixth grade, Z. asked defendant to frost his hair when defendant was in the bathroom frosting his own hair. They were waiting for the dye to set when defendant rubbed his penis against Z.'s penis, while both were clothed. They removed their clothes and defendant told Z. to "stick it in him." Defendant spit in his hand, rubbed spit on Z.'s penis to "lube" it, then bent over. Z. put his erect penis in defendant's "butt" and they "[h]ad sexual intercourse." Lewd and lascivious act with R.
The jury found defendant committed a lewd and lascivious act upon his niece R., a child under the age of 14 (count 14). (§ 288, subd. (a).) R. was born in 1993. When she was six or seven years old, defendant put his hand down her pants and rubbed her vagina as she lay on the couch with him watching television. Defendant told her to touch his penis and, when she refused, "grabbed" her hand and put it down his pants. Her brothers Z. and J. were in the room with them watching television, sitting on the floor. J. saw what defendant was doing. He turned around and said "watch out for my grandma." J. told R. later, "never . . . let him do that again." Sex offenses against J.
The jury found defendant committed the following sex offenses against his nephew J.: four counts of a lewd act upon a child who was 14 or 15 years old (§ 288, subd. (c)(1)) (counts 7, 8, 10, 13); sexual penetration by a foreign object upon a child under age 16 (§ 289, subd. (i)) (count 11); and oral copulation with a child under age 16 (§ 288a, subd. (b)(2)) (count 12). All offenses were alleged to have occurred between May 2003 and November 2004. The prosecutor specified the incident underlying each count.
J. was born in 1989. J. testified he was about eight years old when he saw defendant molesting his brother Z., who was one year younger. J. walked into defendant's bedroom and saw the two in bed, with defendant's hand down Z.'s pants. Z. was "[f]rightened;" he had never "seen anything like that" before.
Count 7
The first time defendant did anything to J. was in the summer of 2003, when the boy was 14 years old. J. was on a family camping trip with his grandparents and other relatives, including defendant. J. and defendant were sharing a tent for the night. Defendant asked J. to massage his back and J. complied. After about 10 minutes of massaging defendant's back, defendant rolled over, pulled down his basketball shorts and told J. to touch his erect penis. Defendant "grabbed" the boy's hand, placed it on his penis, and told J. to stroke it. J. was afraid and did as he was told.
Count 8
J. recalled a later incident when he was at an aunt's house for a family event. After dark, when the children were playing outside, defendant pulled J. behind a bush. He grabbed J.'s hand and put it on his penis and touched J.'s penis over his clothing. They engaged in mutual masturbation until defendant ejaculated.
Count 9 charged commission of an additional lewd act upon 14-year-old J. occurring in a bedroom of the Petaluma house. Count 9 was dismissed when it was discovered during jury deliberations that the prosecutor's list specifying the incident underlying each count misidentified the location of the incident as the bathroom instead of a bedroom.
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There was another incident during a family event at the aunt's house. J. was using the bathroom when defendant entered the room without knocking and started "playing with" the boy's penis. Defendant stopped when someone tried to open the door. Defendant told J. "to keep quiet" and left.
Count 11
Another time, defendant, who had moved out of the Petaluma house, came to the house around 2:00 or 3:00 a.m. and knocked on the upstairs window of the bedroom J. shared with his brother. Defendant woke the boys and Z. went to get their grandfather, who went downstairs and opened the door to defendant. Defendant stayed at the house and, when J. awoke at daylight, defendant was in bed with him. Defendant stroked the boy's penis. Defendant then tried inserting his finger in the boy's anus and, when "it didn't go," wet his finger and inserted his finger in J.'s anus and "[m]oved it around."
Count 12
In the summer of 2003, or possibly 2004, defendant drove Z. to summer school and then drove behind a building where he told J. to orally copulate him. J. complied but gagged and choked and "could not perform the way he had wanted [him] to." J. told defendant he was going to throw up and defendant angrily pulled up his pants.
Count 13
Another incident occurred in the bathroom of the Petaluma house. Defendant took hold of the hands or arms of J. and Z. and led them into the bathroom. Defendant pulled down his and the boys' pants and placed J. on the sink in front of him with Z. standing behind defendant. At defendant's instruction, J. and defendant engaged in mutual masturbation while Z. "played with" defendant's anus.
Revelation of the molestation
The children told a relative about defendant's molestation during a family camping trip in the summer of 2004. The trip participants were J., Z. and R., their grandparents, their aunt Michelle (defendant's sister), Michelle's husband, and Michelle's two children. Defendant did not attend. All the children went for a walk after dinner and returned to the family campsite late because they found a cell phone and went around the campsites trying to locate its owner. Michele yelled at the children for talking to strangers and J. ran to his tent crying. Michelle came to J.'s tent to explain that what he did was wrong and to ask why he was so upset. J. said he had "stuff that had been going on in [his] life." After a few minutes, J. told her that he was being molested. Michelle asked who was molesting him and the boy said "Uncle JP," defendant. J. told her the first incident occurred a year earlier on the family camping trip. Michelle asked J.'s siblings and her children if defendant had touched them inappropriately. J.'s brother Z. told Michelle defendant molested him. Michelle told her father what J. and Z. said. The next morning, the family packed up camp and returned home.
At the Petaluma house, J. and Z. told their grandparents about the molestation. The children's grandmother cried and said they were lying. The grandfather telephoned defendant, who was living in an apartment across town, to ask him if he "had abused" the children and defendant denied it. The grandfather told defendant to stay away to avoid any problems, and defendant did not see the children again. The grandparents told the children not to tell their parents. No family members called the police.
Over a year later, the children told their mother about the molestation. The mother was angry and wanted to call the police but the children "begged her not to" because they were afraid they would "get in trouble" with their grandparents if they went against their wishes. In 2010, six years after revealing the molestation to their grandparents, the children's father was released from prison and they told him what happened. The children did not feel they had to keep quiet about the molestation because they "were away" from their grandparents. The children discussed with their father the possibility of calling the police and decided "it was the right thing to do." The police were contacted in late 2010.
A friend of defendant testified that defendant tried to obtain an emergency passport in early 2011 and, when he failed to do so, moved from California to the East Coast. The police apprehended defendant in Connecticut in August 2011.
Discussion
1. The trial court did not abuse its discretion in excluding evidence of a victim's sexual conduct with others that was offered to impeach the victim's credibility.
Defendant claims the court abused its discretion in excluding evidence of J.'s sexual conduct with his young cousins that was offered to impeach the child's credibility. (Evid. Code, § 782.)
General principles
"Evidence of the sexual conduct of a complaining witness is admissible in a prosecution for a sex-related offense only under very strict conditions." (People v. Fontana (2010) 49 Cal.4th 351, 362.) The term sexual conduct is broadly construed to encompass "any behavior that reflects the actor's or speaker's willingness to engage in sexual activity." (People v. Franklin (1994) 25 Cal.App.4th 328, 334.) Legislative limitations of the admission of such evidence represents "a valid determination that victims of sex-related offenses deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy." (Fontana, supra, at p. 362.) If evidence of sexual conduct is offered to attack the credibility of a complaining witness, the defense must present a written motion with an offer of proof. (Evid. Code, § 782, subd. (a)(1).) "If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant." (Evid. Code, § 782, subd. (a)(3).) The court may admit the evidence if it finds it relevant to the witness's credibility and not inadmissible as more prejudicial than probative. (Evid. Code, §§ 352, 782, subd. (a)(4).)
The California Supreme Court recently observed: "our courts have properly exercised the discretion afforded by Evidence Code section 782 'narrowly' [citation], and we emphasize that '[g]reat care must be taken to insure that this exception to the general rule barring evidence of a complaining witness' prior sexual conduct . . . does not impermissibly encroach upon the rule itself and become a "back door" for admitting otherwise inadmissible evidence.' " (People v. Fontana, supra, 49 Cal.4th at pp. 362-363.)
"The trial court is vested with broad discretion to weigh a defendant's proffered evidence, prior to its submission to the jury, 'and to resolve the conflicting interests of the complaining witness and the defendant.' " (People v. Mestas (2013) 217 Cal.App.4th 1509, 1514.) "A trial court's ruling on the admissibility of prior sexual conduct will be overturned on appeal only if appellant can show an abuse of discretion." (People v. Chandler (1997) 56 Cal.App.4th 703, 711.)
The hearing
Defendant filed a motion pursuant to Evidence Code section 782 to introduce evidence of J.'s sexual conduct for the purpose of attacking his credibility. The court ordered an evidentiary hearing outside the jury's presence to consider the matter. J. was 23 years old at the time of the hearing in 2012. J. testified that sometime in 2004, before the molestation was revealed in the summer of that year, he and his cousin Ryan were sharing a bed in the Petaluma house during a sleep-over. Ryan is Michelle's son. At the time, J. was 14 or 15 years old and Ryan was about 13 years old. J. bragged that his penis was bigger than Ryan's penis and, after some discussion about sizes, Ryan grabbed J.'s hand and placed it on his penis "to feel how big [Ryan's] was" and J. "pulled [his] out to show [his] was bigger." The boys stroked each other's penises then "pretty much just finished ourselves off." Afterwards, the boys "joked about sizes." J. testified he was ashamed of the incident "because of the fact [Ryan] was a cousin." J. did not know if Michelle knew about the incident with her son Ryan before he revealed defendant's molestation. On cross-examination, J. was asked if he thought Michelle "might find out" and he replied "yeah." The prosecutor represented to the court that Michelle, who did not testify at the hearing, learned of the incident several months after defendant's molestation was revealed. J. testified that Michelle never accused him of any wrongdoing with Ryan.
In July 2004, before revelation of the molestation, 15-year-old J. exchanged text messages with his cousin Joshua who was four or five years older. J. said he was gay and Joshua replied that "being gay was wrong" and J. would "be going to hell for it." J. testified there was nothing of "a sexual nature" in the texts and denied expressing any "romantic interest" in his cousin. J. told Joshua "he was good looking" but J. testified "there's nothing wrong with a compliment." J. said he "got in trouble" for incurring a large telephone bill and for "talking about the gay stuff."
The proffered evidence was properly excluded
The court excluded the evidence as more prejudicial than probative. The court found the relevance of the evidence to be "small" and that its admission would degrade J.'s privacy rights, mislead or confuse the jury, and "necessitate an undue consumption of time."
The court did not abuse its discretion. Defendant argues the evidence was highly relevant because a jury could "solidly infer" that J.'s "inchoate feelings of homosexuality" and "guilty secret about his conduct with Ryan" "motivated a conscious or semiconscious need on the part of [J.] to deflect any consequences by presenting himself as a sexual victim." The argument is not supported by the record, which does not show that J. feared his family learning of his sexual identity or conduct with Ryan. J. testified that he "flat out told" his cousin Joshua "I'm gay" and, while J. "got in trouble" for "talking about the gay stuff the nature of that "trouble" was never specified and appears to be no greater than the trouble caused by incurring a large telephone bill. As for the puerile penis competition and masturbation incident with Ryan, J. testified that Ryan's mother, Michelle, never accused him of any wrongdoing and there is no evidence he feared an accusation of that nature from her or other family members. As the trial court found, the evidence was only marginally relevant to establish that J. was motivated to fabricate molestation claims. The evidence was properly excluded as more prejudicial than probative as it would create an unnecessary invasion of J.'s privacy and risked confusing the jury with collateral matters. 2. The jury was properly instructed on counts 7, 8, 10 and 13 and returned unanimous verdicts on those counts.
Defendant contends his convictions for committing lewd acts upon J., a child of 14 or 15 years (counts 7, 8, 10, and 13), must be reversed because the instructions listed a date range that predated J.'s 14th birthday by 15 days, thus presenting the possibility that some of the jurors may have convicted defendant for conduct occurring when J. was 13 years old, which defeats jury unanimity and allows conviction for conduct outside the terms of the charged crime.
The jury instructions specified the incidents underlying each count and stated the date range for all counts concerning J. to be May 1, 2003 through November 30, 2004. J. was born on May 16, 1989 and thus the date range covered a time when J. was 14 or 15 years old, except for the period of May 1 to May 15, 2003, when J. was 13 years old. Defendant argues "the evidence allows for the conclusion that the acts the prosecution designated as constituting the crimes charged fell outside the statutory time represented in the age requirement for these crimes" and thus "it is possible one or more jurors found there to have been no crime" within the defined age range "while one or more found there to have been a crime as properly defined." Defendant notes that the jury was instructed under a modified version of CALCRIM No. 207, as follows: "It is alleged that each of these crimes occurred on or about specified date ranges. The People are not required to prove that the crime took place on any specific date, but only that it happened reasonably close to that specific date range." Defendant argues jurors were effectively instructed that "the age requirement of the crimes was not literal but allowed for some flexibility."
The argument is unavailing. "When considering a claim of instructional error, we view the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner." (People v. Houston (2012) 54 Cal.4th 1186, 1229.) CALCRIM No. 207 provided a general statement concerning date ranges for the multiple counts alleged against several victims but the instructions specifically advised the jury that, concerning J., defendant was charged in counts 7, 8, 10 and 13 "with a lewd and lascivious act on a 14- or 15-year-old child" and, in listing the elements of the crime, stated the People "must prove" "[t]he child was 14 or 15 years old at the time of the act." (CALCRIM No. 1112.) J. testified that the first time defendant did anything to him was in the summer of 2003, when the boy was 14 years old. J. never testified about any incidents predating his 14th birthday. In argument to the jury, the prosecutor said "all of these incidents reported by [J.] occurred when he was 14 years old" and defense counsel agreed the incidents were alleged to have occurred when J. was 14 years old. The verdict forms for counts 7, 8, 10 and 13 each specified that defendant committed a lewd and lascivious act "upon and with the body of [J.], who was 14 years old." Viewing the record as a whole, there is no reasonable likelihood any juror misapplied the instructions and convicted defendant of acts occurring when J. was 13 years old.
Disposition
The judgment is affirmed.
/s/_________
Pollak, J.
We concur: /s/_________
McGuiness, P. J.
/s/_________
Jenkins, J.