Opinion
G063245
06-03-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSE ALFREDO ESCALANTE CASTRO, Defendant and Appellant.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Bernardino County No. FSB20003925, Harold T. Wilson, Jr., Judge.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GOETHALS, ACTING P. J.
Jose Alfredo Escalante Castro appeals from his convictions for assault on his then minor daughter with intent to commit forcible rape, attempted forcible rape, and dissuading a witness. He claims the trial court erred by admitting certain statements the victim made hours after the incident and failing to explain certain sentencing decisions. He also claims he cannot be convicted of both assault with intent to commit forcible rape and attempted forcible rape, and that the court erred in failing to explain certain sentencing decisions.
The parties refer to appellant by his preferred name, Jose Escalante; we will likewise refer to him by that name.
We agree that he cannot be convicted of both assault with intent to commit forcible rape and attempted forcible rape and therefore reverse his conviction for attempted forcible rape. We further agree the trial court abused its discretion in admitting parts of the victim's statements; however, we find it is not reasonably probable Escalante would have received a more favorable outcome had the court excluded them. We therefore affirm Escalante's other convictions and their related sentences.
FACTS
The victim testified she was living with her father at the time of the incident. As she was getting ready for work, she walked past an open bathroom door where she saw Escalante was naked. The victim went to the couch in the living room. Escalante approached her and removed her pants. He then pulled down his own pants and straddled her on the couch; he grabbed her hand and forcefully placed it on his penis. He told her "let me do it once." She was crying and repeatedly told him to stop. She eventually managed to push him off. Escalante asked her not to call her mother or the police. She nonetheless called her mother who called the police.
The victim's mother testified that shortly after the incident the victim called her crying. The victim told her "that he had tried to, you know, abuse [me], touch [me]." The victim told her mother she saw Escalante naked in the bathroom, and he wanted to touch and kiss her.
A responding police officer testified he arrived at the scene and saw the victim and her mother holding each other. He described the victim as "[c]hoked up" and "on the verge of tears."
The prosecution played the transcribed body worn camera recording from this encounter to the jury. In the video, the victim told the officer she was getting ready for work when she saw Escalante "just standing there naked." She went to the couch where he approached her "want[ing] to take [her] pants off." She told the officer she tried to push him off, but he kept trying to get on her and he told her "just like let me do it once and if you don't like it then I'll stop." She also said Escalante put his penis on her leg and put her hand on it.
Approximately two hours and 40 minutes after the incident, the victim gave another statement to an officer at the police station. The prosecution played a transcribed video of this statement for the jury. The interview lasted approximately fifteen minutes. The victim described walking by the open bathroom door and seeing Escalante naked inside. He then approached her on the couch, pulled her pants down, asked her if he could "do it just once," and put his penis on her leg and her hand on his penis, and kissed her. She told him to stop and was crying. She tried to get up, but she could not. He told her not to call her mom.
Minutes after the conclusion of this interview, the officer interviewed the victim again in the same location. This interview was also video recorded, transcribed, and played for the jury. The interview lasted five minutes. In this interview, the victim told the officer that Escalante tried to pull her shorts down. She described how he tried to make her grab his penis. She said Escalante put her hand on his penis around three times while she was saying "no." The officer did not testify separately to the specifics of this interview.
Escalante states this was a "few day [sic]" after the first interview. That is incorrect. It was a few minutes after the first interview; Escalante's citations support this conclusion.
At trial, the prosecution introduced evidence of a telephone call Escalante made from the jail. During the call he made several incriminating statements: "I disrespected my daughter and now I can't see the kids, nor anyone and I haven't talked with anyone," "I never thought that I would commit an error this huge," "I don't know what happened . . . I don't know what, how could I do that?" "You told me that life was going to change, I imagined that everything was going to be fine. It was going to be better, but I made the biggest mistake," and "I understand that the errors I have to pay."
The jury convicted Escalante of assault with the intent to commit forcible rape on a person under age 18 (count 2; Pen. Code, § 220, subd. (a)(2)), attempted forcible rape of a child aged 14 or older (count 3; §§ 261, subd. (a)(2), 664), and dissuading a witness (count 4; § 136.1, subd. (b)(1)). The jury acquitted Escalante of lewd act upon a child under age 14 (count 1; § 288, subd. (a)). The jury found true the special allegation as to count three that the victim was over 14 years old but under 18 years old. The jury found true several aggravating circumstances. The jury found not true the special allegation that Escalante unlawfully prevented or dissuaded witnesses from testifying.
All further references are to the Penal Code unless otherwise stated.
DISCUSSION
1. The Attempted Forcible Rape Charge
Escalante argues his conviction for attempted forcible rape is a lesser included offense of assault with intent to commit forcible rape and therefore must be reversed. The Attorney General agrees. After reviewing the entire record, we also agree.
A person can be convicted of more than one crime arising out of the same act or course of conduct only if one offense is not necessarily included in the other. (§ 954; People v. Reed (2006) 38 Cal.4th 1224, 1226.) To determine whether an offense is a necessarily included offense, we employ the statutory elements test. (People v. Sloan (2007) 42 Cal.4th 110, 118.) "[I]f the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former." (Reed, supra, 38 Cal.4th at p. 1227.)
An assault with intent to commit a forcible rape contains all the elements of attempted forcible rape. "Thus, a person who commits an assault with intent to commit rape necessarily also always commits an attempted rape." (People v. Martinez (1985) 171 Cal.App.3d 727, 734.) Accordingly, we must reverse Escalante's conviction for attempted forcible rape.
2. The Victim's Statements to Law Enforcement
The prosecution sought to introduce at trial the victim's statements made at the police station several hours after the incident. The prosecution argued the statements were admissible as fresh complaint evidence, and also for their truth as spontaneous statements, contemporaneous statements, and statements of the victim's then-existing state of mind.
Escalante objected to the first interview "unless it [was] being used for prior consistent or inconsistent statements." The court admitted the first interview, ruling "in addition to the position taken by [the prosecutor], [the] [c]ourt also finds this would also be a fresh complaint."
During trial the prosecutor sought to introduce the victim's second statement. Escalante again objected. The court also admitted this statement, again ruling "similar to [the first statement], fresh complaint, and the inconsistent, consistent statements."
Escalante's heading in his brief for these issues states, in full, "Two of [the victim's] Statements to Law Enforcement Were Hearsay and So Improperly Admitted." In his argument, Escalante does not discuss the statements' admissibility as contemporaneous statements. Although we could deem this point forfeited for failing to support it with citation to legal authority (People v. Stanley (1995) 10 Cal.4th 764, 793), we decline to do so as the Attorney General did not address the issue in his response.
A. Standard of Review
We review rulings on the admissibility of evidence applying the abuse of discretion standard. (People v. Harris (2013) 57 Cal.4th 804, 841.) Discretion refers to "'"the sound judgment of the court to be exercised according to the rules of law."'" (People v. Adams (2004) 115 Cal.App.4th 243, 252.)
B. Fresh Complaint
Traditionally, in prosecutions for sexual assault offenses, courts permitted the prosecution to offer the victim's statements made shortly after the incident. The reasoning was that one would assume such a victim would promptly complain about the assault. Consequently, the complaint was not introduced for its truth, but for the limited purpose of discrediting any suggestion of recent fabrication. (People v. Burton (1961) 55 Cal.2d 328, 351, abrogated by People v. Brown (1994) 8 Cal.4th 746.) The California Supreme Court has reexamined these historical assumptions. In Brown, the court explained "the continuing validity of the fresh-complaint doctrine has been questioned by a number of legal scholars and commentators." (Brown, supra, 8 Cal.4th at p. 749.) The assumption "that it is natural for the victim of a sexual offense promptly to disclose the incident if it actually occurred . . . has been eroded substantially in contemporary times by numerous empirical studies." (Ibid.) Therefore, the court held, "the fresh-complaint doctrine, as traditionally defined, no longer provides a sound basis for the admission of evidence of extrajudicial statements made by the victim of a sexual offense in reporting the alleged crime." (Ibid.) The fact the victim made a complaint may nonetheless be "relevant under generally applicable rules of evidence, and therefore admissible, so long as its probative value outweighs its prejudicial effect." (Id. at p. 760.) Such statements are not admitted for their truth, but rather to show the victim complained of the offense thereby lending credibility to the victim. (Id. at p. 763.)
The Attorney General argues Escalante forfeited the claim because he did not object to the admissibility of the statement for its nonhearsay purpose. Escalante responds that his hearsay objection encompassed an objection on fresh complaint grounds. We disagree.
We will not reverse a conviction based on the erroneous admission of evidence unless "[t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion." (Evid. Code, § 353, subd. (a), italics added.) Failure to raise such an objection forfeits the claim on appeal. (People v. Suff (2014) 58 Cal.4th 1013, 1075-1076.)
Escalante's hearsay objection to the introduction of the statements did not prevent their admission for a purpose which did not involve their truthfulness. Escalante therefore forfeited his ability to argue this claimed error.
3. Hearsay Exceptions
The trial court determined these statements were admissible under the following hearsay exceptions: contemporaneous statements, spontaneous statements, prior consistent statements, and prior inconsistent statements. As we explain, aside from two isolated statements, the court abused its discretion in admitting the statements for their truth. A. Contemporaneous Statements
The Attorney General does not specifically argue for the statements' admissions as contemporaneous statements, spontaneous statements, or prior consistent statements. A respondent who fails to address a contention raised in the appellant's opening brief does not automatically forfeit its opposition to the contention. (People v. Hill (1992) 3 Cal.4th 959, 995, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046.) Thus, we will also address the applicability of these exceptions.
A declarant's out of court statement is admissible if offered to explain, qualify, or make understandable the declarant's conduct and the declarant made the statement while engaged in that conduct. (Evid. Code, § 1241, subds. (a), (b).) Here, the declarant is the victim. The statements were not introduced to explain her contemporaneous conduct. Rather, the prosecution introduced the statements to explain Escalante's conduct. The statement was inadmissible for that purpose.
B. Spontaneous Statements
A declarant's statement is not inadmissible hearsay if the statement narrates, describes, or explains an act, condition, or event the declarant perceived and the declarant spontaneously made the statement while under the stress of excitement caused by the perception. (Evid. Code, § 1240, subds. (a), (b).) Spontaneity refers to actions undertaken without deliberation or reflection; the focus is on the mental state of the speaker, not the nature of the statement. (People v. Brown (2003) 31 Cal.4th 518, 541.) So long as the declarant made the statement "'"under the stress of excitement and while the reflective powers were still in abeyance,"'" it is admissible. (People v. Gutierrez (2009) 45 Cal.4th 789, 810.)
The interview at issue here occurred about two hours and 40 minutes after the police were dispatched to the crime scene. It took place away from the scene in a safe place. The victim largely responded to the officer's questions. There is no evidence in the record to suggest the victim made the statements without deliberation or reflection. Accordingly, the court abused its discretion in admitting the statements as spontaneous statements.
Although the parties did not provide us with the video of the second interview, there is no evidence in the record to suggest the victim's demeanor, nor the tone of the interview, was anything different than the first. It took place at the same location, with the same officer, and the questions related to the same topics as the first interview.
C. Prior Consistent Statements
A witness's prior statement is admissible if the statement is consistent with the witness's in-court testimony, and the party offers it after a prior inconsistent statement was introduced or a charge of bias or fabrication raised, and the witness made the prior consistent statement before the inconsistent statement or before the period of alleged bias or fabrication. (Evid. Code, §§ 1236, 791, subds. (a), (b).)
The Attorney General does not identify any foundational basis which would support the introduction of these statements as prior consistent statements. Our independent review of the record reveals none. Therefore, it was an abuse of discretion for the court to admit the statements as prior consistent statements.
D. Prior Inconsistent Statements
A witness's prior statements, inconsistent with their in-court testimony, are admissible for their truth if the proponent confronts the witness with the inconsistency or the witness is subject to recall. (Evid. Code, §§ 1235, 770, subds. (a), (b).) A prior statement is inconsistent with in-court testimony if it tends to contradict or disprove the witness's testimony, or it tends to contradict any inference or impression one may reasonably deduce from the testimony. (People v. Cowan (2010) 50 Cal.4th 401, 501-503.)
The Attorney General argues the statements were admissible as prior inconsistent statements because they "differed from parts of her trial testimony." The Attorney General points to four instances to illustrate the inconsistency: (1) the victim did not testify at trial that Escalante kissed her, but at the police station the victim said he kissed her on the lips; (2) the victim testified at trial that Escalante grabbed her hand and twice tried to make her touch his penis, but she told the officer he put her hand on his penis "three times"; (3) the victim testified at trial that when Escalante got to the couch, he dropped his pants below his knees, but she told the officer in the interview that he dropped his pants to his thighs; and (4) the victim testified at trial about prior incidents involving Escalante rubbing lotion on her thigh, sleeping in the same bed, and watching pornography, but at the end of the police interview, she was asked if there was anything else the officer should know, and she did not mention these prior incidents.
Aside from the four specific statements, the Attorney General does not explain how the remainder of the two interviews was admissible as prior inconsistent statements. A prior inconsistent statement does not make admissible the noninconsistent portions of the witness's statement. (People v. Morgan (1978) 87 Cal.App.3d 59, 75, overruled on other grounds in People v. Kimble (1988) 44 Cal.3d 480, 498.) The two interviews totaled approximately twenty minutes, and the parties discussed a range of topics. It was an abuse of discretion for the court to admit the entirety of the two interviews as prior inconsistent statements.
(i) The Kiss
The Attorney General argues the prior statement that Escalante kissed the victim is admissible as she did not testify at trial that Escalante kissed her. In the first interview with police, the victim told the officer Escalante kissed her on her lips. In the second interview with police, she told the officer he "started to kiss me."
Under cross-examination, the victim testified Escalante "kissed . . . or bit [her] lip."
The prosecution never asked the victim if Escalante kissed her. Not testifying about an event does not provide a foundation for admitting a prior statement. It was an abuse of discretion to admit these statements as prior inconsistent statements.
(ii) The Touch
The Attorney General argues the victim's statement to police that Escalante made her touch his penis three times was inconsistent with her testimony that it was only two times. We agree.
(iii) The Pants
The Attorney General argues the victim's testimony that Escalante dropped his pants below his knees is inconsistent with her statement to the officer that it was to his thighs. The victim testified at trial that he pulled his pants "below his knees." She told the officer that his pants were "around his thighs." The court did not abuse its discretion in admitting this statement.
(iv) The Prior Incidents
The Attorney General argues the victim's statement to the officer that there was nothing else he needed to know was inconsistent with her in-court testimony about prior incidents involving Escalante rubbing lotion on her thigh, sleeping in the same bed, and watching pornography.
The victim testified at trial about these prior incidents. It was an abuse of discretion to admit these statements as prior inconsistent statements.
E. Probability of a More Favorable Outcome
To obtain a reversal based on the erroneous admission of evidence, Escalante must show there is a reasonable probability he would have achieved a more favorable outcome absent the error. (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1526.)
Escalante argues the victim's credibility was at the hub of the case. The Attorney General responds that the jury would have reached the same result even if the court excluded the contested statements because the victim testified in court; the jury had the opportunity to hear from her directly and to judge her credibility. The Attorney General also points to corroborating evidence, specifically Escalante admitting to the assault in the recorded jail call. We agree with the Attorney General.
Given the substantial evidence in the record which supports the convictions, it is not reasonably probable Escalante would have received a more favorable outcome had the trial court excluded the statements.
F. The Court's Sentencing Decision
At trial, the court elected to stay the sentence on count three, the conviction which carried the shortest term, and sentenced Escalante on count two, the conviction which carried the longest term. Since we reverse count three, the issue is moot.
DISPOSITION
We reverse Escalante's conviction on count three for attempted forcible rape. We affirm Escalante's remaining convictions and sentence. The trial court is directed to prepare an appropriately amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
WE CONCUR: SANCHEZ, J., DELANEY, J.