Opinion
A135308
11-28-2012
THE PEOPLE, Plaintiff and Respondent, v. JULIE GAY CORREA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County
Super. Ct. No. 051105758)
Defendant Julie Gay Correa appeals a judgment entered upon her plea of no contest to three counts of committing a lewd act upon a child aged 14 or 15 (Pen. Code, § 288, subd. (c)(1)) and one count of sexual penetration through force, violence, duress, menace, or fear of bodily injury (§ 289, subd. (a)). Her counsel has filed an opening brief raising no issues and asking this court for an independent review of the record. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has been informed of her right to personally file a supplemental brief, but she has not done so.
All statutory references are to the Penal Code.
Defendant was charged by information with 28 felonies against a single victim, Kristen C.: six counts of committing a lewd act upon a child aged 14 or 15, by a person at least 10 years older than the child (§ 288, subd. (c)(1)) (counts 1, 2, 5, 6, 9, & 10); seven counts of oral copulation by force, violence, duress, or fear of injury (§ 288a, subd. (c)) (counts 3, 7, 11, 15, 19, 23, & 27); seven counts of sexual penetration through force, violence, duress, menace, or fear of bodily injury (§ 289, subd. (a)) (counts 4, 8, 12, 16, 20, 24, & 28); four counts of oral copulation with a person under the age of 18 (§ 288a, subd. (b)(1)) (counts 13, 17, 21, & 25); and four counts of sexual penetration with a person under the age of 18 (§ 289, subd. (h)) (counts 14, 18, 22, & 26). The information alleged that the offenses took place between 1996 and 1999, that the victim was under 18 years of age when they occurred, that the offenses involved substantial sexual contact, that independent, admissible evidence corroborated the victim's allegations, and that the victim reported the crimes to a law enforcement agency on July 1, 2010. (§ 803, subd. (f) & 1203.066, subd. (b).)
The information charges these offenses as violations of section "288(a)(c)." Such a statute does not exist. It appears that section 288a, subdivision (c)(2)(A) is the correct statute.
The complaint had been filed on August 3, 2010. Section 803, subdivision (f), provides that a criminal complaint may be filed within one year of the date a person reports to a law enforcement agency that he or she was the victim of a number of crimes, including violations of the statutes at issue here, if, among other things, the crime involves substantial sexual conduct and there is independent evidence that corroborates the victim's allegation; if the victim is 21 years of age or older at the time of the report, the corroborating evidence must be clear and convincing. (§ 803, subds. (f)(1) & (f)(2)(B) & (C).)
Evidence presented at the preliminary hearing showed the following:
Kristen C. met defendant during the 1993-1994 school year, when Kristen was in sixth grade in a middle school in Moraga. Kristen was 11 or 12 years old. Defendant was a physical education teacher at the school and taught all the girls' PE classes. Kristen was good at sports, and looked up to defendant. When Kristen was in seventh grade, defendant suggested that she keep her books in defendant's office so that she would not have to go to her locker. When Kristen was in eighth grade, she was one of defendant's teaching assistants. During that year, their relationship became more like a friendship. Kristen and other friends would eat lunch in defendant's office, and defendant would bring Kristen food. Defendant gave more attention to Kristen than to other girls. During or after basketball games, she would be more physical with Kristen than with other girls, touching and hugging her. She would also help Kristen practice soccer, and went to some of her weekend games.
Defendant was a chaperone for a trip to Washington D.C. during spring break of Kristen's eighth grade year, in 1996. She reproached Kristen for "ditching" her to spend time with her friends on the trip. On the last evening of the trip, defendant had a group of girls in her hotel room playing a game, and at the end suggested Kristen spend the night in her room so the girls' room would not be so crowded. They slept in the king size bed in defendant's room. Before Kristen fell asleep, defendant cuddled her, played with her hair, rubbed her back, then ran her hand over Kristen's buttocks.
Around the end of Kristen's eighth grade year, defendant began calling her at home, and they would have long conversations. Defendant would refer to her relationship with her husband, and ask Kristen about her body's development. Toward the end of eighth grade and during the following summer, defendant would tell Kristen she loved her and she wished they could be together. Kristen was confused, because she felt she had done something to make defendant dependent on her. Kristen's parents became concerned when their conversations started taking place every night or two. Defendant and Kristen arranged a signal that Kristen would give if her mother was approaching as they were talking, so they could hang up before Kristen's mother could find out with whom Kristen was talking.
Defendant gave Kristen an Eddie Bauer watch and a card when she graduated from eighth grade, and told her not to tell anyone about the watch. Defendant had a custom of taking her TA's to a cabin in the mountains at the end of the school year. Kristen and another girl went on the trip after eighth grade graduation. One night when the other girl was in the bathroom, defendant kissed Kristen on the cheek and rubbed her back. Later that night, Kristen woke up to find defendant sitting on the edge of her bed, rubbing her back, and touching her buttocks. She also touched Kristen's breasts over her clothes. When the three went on hikes, Defendant would have the other girl lead the way, and she would touch Kristen's buttocks as they walked.
After the trip to the cabin, defendant asked Kristen to go with her to watch a dance recital. During the show, she touched Kristen's hand and back, and after she drove Kristen home, defendant kissed her half on the cheek and half on the mouth. Later that night, defendant called Kristen and apologized, but then said it "did feel pretty good and I'd like to try it again."
Defendant gave Kristen volleyball lessons two or three times a week during the summer after Kristen graduated from eighth grade. During that time, defendant would kiss Kristen on the mouth and touch her breasts, buttocks, and pubic area over her clothes. She told Kristen she loved her and that she was teaching Kristen how to love. This happened at least twice a week during the summer.
After Kristen started high school, she and defendant began spending more time alone together. Kristen's parents were upset when they learned defendant was still contacting her. Defendant bought Kristen a cell phone so they could speak to each other, and told her to hide it from her parents, saying Kristen should "hide it and protect it like [she] would protect [defendant's] life." Defendant cut a hole in a Spanish/English dictionary so Kristen could hide the phone there. Kristen was expected to call defendant every day. Defendant knew the combination to Kristen's locker at the high school, and she would put new batteries for the cell phone, food, and notes in the locker.
That summer, defendant moved to Lafayette, while her husband temporarily stayed at their home in Livermore. She gave Kristen keys to her office at the middle school and to her new home. When defendant first got the apartment, she invited Kristen and a group of friends to the apartment, and when the other girls were outside, she kissed Kristen, lifted both their shirts, and kissed Kristen between her legs, over her clothes.
From the summer of 1996 to March of 1997, defendant lived on her own at the apartment in Lafayette. During that time, Kristen, who was in ninth grade, would sneak out of her house to meet defendant at her apartment. Defendant wanted her to visit every night, but Kristen went "almost half of the time," or every other night. Defendant would pick Kristen up in her car after Kristen snuck out of her house. Defendant would also occasionally go to Kristen's house without her parents' knowledge. By the beginning of October, the two were engaging in sexual acts every time Kristen visited; by October or November, defendant was digitally penetrating Kristen and orally copulating her on every visit, or approximately 15 times a month. On about half of these occasions, defendant also had Kristen perform the same acts on her. Kristen "had a really hard time" with orally copulating defendant, and defendant would hold her head down to show her how to do it. They would also engage in vaginal-to-vaginal contact. Defendant sometimes gave Kristen alcohol, which made it easier for her to perform these acts.
At the time, Kristen was 14 years old, and defendant was 28 years old.
One of the teachers at the middle school, Mr. Witters, had behaved inappropriately toward Kristen when she was in eighth grade. In the fall of the year Kristen was in ninth grade, defendant told Kristen several other girls had reported Mr. Witters's activities, and that he had disappeared. Two weeks later, he apparently committed suicide. Defendant told Kristen that Mr. Witters had killed himself because there was "no way out," and that there was no way out for defendant and Kristen. Kristen took that to mean defendant would kill herself if Kristen's parents found out about their relationship, although she sometimes thought defendant meant she would kill Kristen as well. Defendant would speak in this way more often when there was "turmoil," such as when Kristen's mother found the cell phone or when the two did something risky. Defendant also told Kristen her parents would not love her any longer if they knew what she had been doing, that her friends would think she was a lesbian, and that if people found out what had happened, defendant would have to take Kristen away from her family and live with her "on the run."
Defendant's husband moved into the Lafayette apartment in March of Kristen's freshman year of high school. After that, defendant and Kristen would meet at defendant's office at the middle school, in defendant's car, at Kristen's home when her parents were out, or at defendant's apartment when her husband was gone. On occasion, defendant would sneak into Kristen's home when her parents were in the house. If Kristen was out, she would wait for Kristen in her bedroom closet. The two continued to engage in sexual acts whenever they met. This continued through the fall of Kristen's senior year of high school.
Kristen turned 15 in February, 1997.
In 1999, during the fall of her senior year of high school, Kristen started dating a new boyfriend, who eventually became her husband. She immediately stopped calling defendant and refused to meet with her.
In 2010, Kristen reported defendant's behavior to law enforcement. During the investigation, she had a series of secretly recorded telephone calls with defendant, in which defendant made a number of incriminating statements. For example, Kristen described the nights the two had been together, and defendant said she could remember them. After Kristen discussed times the two had sexual encounters in Kristen's bedroom, defendant said she was worried that "this is all going to come back and I am going to pay for what I've done." When Kristen described other encounters and said she needed to hear that defendant remembered "all of it" and thought about it, defendant replied, "All the time." She said that "a lot of people" would think it was wrong that she and Kristen were together when Kristen was 14 or 15 years old.
Defendant moved to dismiss the counts alleging force or duress pursuant to section 995, contending the evidence at the preliminary examination did not show force or duress, that the evidence showed defendant had a reasonable belief in Kristen's consent, and that the counts were time-barred under section 803, subdivision (f), because there was no corroboration. The trial court denied the motion.
Pursuant to a negotiated disposition, defendant pled no contest to counts 1, 2, 4, and 5, with an agreed-upon maximum sentence of eight years. The court accepted her plea after advising her of her constitutional rights. Defendant waived her appellate rights.
At the sentencing hearing, defense counsel asked the trial court to strike the probation officer's report on the ground that the probation officer did not review materials submitted on defendant's behalf. The trial court stated that it would disregard an erroneous case citation, but otherwise denied the request to strike the report.
The trial court imposed the six-year midterm for count 4 (§ 289, subd. (a)), and consecutive terms of one-third the midterm for counts 1, 2, and 5 (§ 288, subd. (c)(1)), for a total prison sentence of eight years. The court awarded custody credits, imposed restitution and fees, ordered defendant to provide samples, specimens, and prints (§ 296), and ordered her to register as a sex offender (§ 290). The remaining counts were dismissed.
Defendant requested a certificate of probable cause, stating as grounds that her counsel had advised her to waive her appellate rights without discussing the issue with her; that her sentence was affected by the fact that Kristen's husband was a district attorney in Contra Costa County; that after she entered her plea she discovered new information about the victim's mental health and state of mind; and that she wished to challenge the finding of probable cause at the preliminary hearing and the trial court's denial of her section 995 motion. The trial court denied the request.
We find no reversible error or abuse of discretion. There are no meritorious issues to be argued.
DISPOSITION
The judgment is affirmed.
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RIVERA, J.
We concur: ______________
RUVOLO, P. J.
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BASKIN, J.
Judge of the Contra Costa County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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