Opinion
F072911
06-26-2018
THE PEOPLE, Plaintiff and Respondent, v. RICHARD JOYA, Defendant and Appellant.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CM1402)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Robert Shane Burns, Judge. Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Richard Joya appeals from a judgment of conviction on five counts of lewd or lascivious conduct with a child under 14 years of age (Pen. Code, § 288, subd. (a)), with enhancements for multiple victim circumstances (id., § 667.61, subds. (b), (e)(4)). The victims were his nieces. He was sentenced to indeterminate prison terms totaling 45 years to life.
Joya presents two claims. First, he contends the trial court erred by excluding impeachment evidence regarding one of the victims. The evidence, for which there is no documented offer of proof, was purportedly of a sexual nature and inadmissible absent compliance with certain provisions of the Evidence Code. The record provides no indication of Joya's compliance with the statutory procedures, and the claim fails on the merits. Second, he alleges insufficiency of the evidence with respect to a sentencing order requiring blood or saliva testing pursuant to Penal Code section 1202.1. This claim is untenable in light of the testimony adduced at trial. Therefore, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Kings County District Attorney charged Joya by information with five counts of lewd or lascivious conduct (counts 1, 3, 4, 5, 6) and one count of committing the same crime by force, violence, duress, menace, or fear (Pen. Code, § 288, subd. (b)(1); count 2). Multiple-victim enhancement allegations were included in these charges. The incidents were alleged to have occurred between March 1, 2011 and July 1, 2012, when Joya was between the ages of 18 and 19 years old.
Counts 1 and 2 involved Victim #1, who would have been 12 or 13 years old at the time. Count 3 involved Victim #2, who was then between the ages of 6 and 8. Counts 4, 5, and 6 involved Victim #3, who was then between the ages of 9 and 10.
The charges were tried before a jury in November 2015. Given the nature of the claims on appeal, we provide only a synopsis of the trial evidence, summarized in the light most favorable to the judgment.
Joya is the victims' paternal uncle. In early 2011, he was invited to live with his brother's family on a military base in Lemoore. The brother extended the invitation hoping Joya might pursue a military career, as he had done. The brother was away on deployment when Joya arrived, and for a while Joya was the only adult male living in the house.
Counts 1 and 3 arose from an incident that occurred sometime after Joya had moved in with the family. Victims #1 and #2, along with a third sibling, had fallen asleep in their living room watching television. Victim #1 apparently awoke to the sensation of Joya sticking his hand into her pajamas and touching her genitalia. She shifted her body to get him to stop, and he did. However, after departing to use the bathroom, Joya returned and molested Victim #2 in the same manner.
On a subsequent occasion, Joya accosted Victim #1 in her bedroom and again touched her between her legs. Next, he exposed himself and forced her to engage in vaginal intercourse. These events formed the basis for count 2.
In approximately summer 2012, Victim #3 told her parents Joya had touched her inappropriately. Joya's brother confronted him about the accusation and Joya just stared at the ground, giving little or no response. The parents immediately kicked him out of the house but took no further action. In February 2014, Victim #1 told a teacher at school that Joya had raped her two years earlier. The teacher reported this to the proper authorities, which resulted in a criminal investigation and Joya's eventual prosecution.
At trial, the testimony of Victim #1 established most of the facts summarized above. Victim #3, in relation to counts 4-6, testified Joya had rubbed her "crotch area" three times. The parents and Victim #1's teacher provided supporting testimony regarding the timing and substance of the victims' initial disclosures.
Joya briefly testified on his own behalf, denying all allegations of wrongdoing. His testimony implied Victim #1 had falsely accused him because he got her into trouble with her father. The relevant testimony is reproduced here, and it is the primary focus of Joya's arguments on appeal.
Defense Counsel: During that time that you lived at the house did you have any difficulties with [Victim #1]?
Joya: No difficulties. I did have - there was a little tension near the end before I left.
Defense Counsel: Okay, there was a little tension. Was there anything in specific that you believed caused that tension between you and her?
Joya: Yes, there was an incident where I didn't have a phone at the time, and they didn't have a house phone, so I used her cellphone and I had found a picture of herself.
...
Defense Counsel: Without going into details, was there an issue that you believe [Victim #1] was upset with you about?
Joya: Yes.
Defense Counsel: And did it have to do anything with her parents, or with you, or what was it?
Joya: It ... had to do with herself and what I found out about her. Defense Counsel: Okay, and is that something that you reported to someone, or that you confronted her about, or what?
Joya: I confronted her about it, and then I told her father.
Defense Counsel: Okay, and do you know if that resulted in any further action by her parents or yourself?
Joya: Just by my brother by taking her phone away and punishing her.
The jury acquitted Joya on count 2 (forcible sexual contact with Victim #1 in her bedroom) but otherwise found him guilty as charged. Because of the multiple-victim enhancements, each count was punishable by imprisonment for 15 years to life. He received consecutive terms for counts 1, 3, and 4, and punishment for counts 5 and 6 was stayed pursuant to Penal Code section 654. A notice of appeal was filed on the day of sentencing.
DISCUSSION
Exclusion of Evidence
Joya claims he "should have been allowed to present evidence as to the photos found on [Victim #1's] phone," and the "failure to allow [him] to present the evidence violated his right to present a full defense." The evidence would have revealed prior sexual behavior by Victim #1 and was therefore subject to the provisions of Evidence Code section 782. The People successfully moved in limine to exclude the evidence, but what Joya fails to acknowledge is that his trial attorney did not oppose the motion. Moreover, as we explain, the motion was properly granted.
Unless otherwise specified, all further statutory references are to the Evidence Code.
Additional Background
The clerk's transcript contains the People's motions in limine, which include motion "VI," entitled "Evidence Code 782." Although labeled as a motion, it is simply a recital of the procedural requirements of section 782. However, the document does contain the following handwritten notation: " 'Sexting' photos." The People also submitted motion "VII," which reads, "Even if the defense meets the requirements of Evidence Code section 782, the victim's prior sexual conduct is inadmissible under Evidence Code section 352." (Original capitalization omitted.)
For reasons unexplained, the trial court heard and ruled upon the motions in limine in chambers and off the record. At Joya's request, we ordered the preparation and filing of a settled statement, i.e. a stipulation, regarding the in limine proceedings. In June 2016, the trial judge and the trial attorneys convened to prepare the settled statement, and those conferences were documented by a court reporter.
On June 30, 2016, the parties filed their stipulation. It states, in pertinent part: "People's motion in limine labeled VI and VII, as to the admissibility of evidence of sexual conduct of the victim of certain sexual offenses to attack the victim's credibility was granted by the court." The transcripts from the related conferences are more informative. The parties and the trial judge agreed on the record that the only contested motion was number "XII," which had sought to limit Joya's ability to introduce evidence of his good character. According to the trial court, "[E]xcept for the character evidence issue ... the People were seeking to limit evidence that the defendant was not intending to proffer ... except for the potential for the - the character evidence[,] and that was only going to be dependent upon how the evidence came out in trial...." (Italics added.)
Law and Analysis
"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 (Fontana).) Admissibility is governed by sections 782 and 1103, which together provide a narrow exception to the general rule of exclusion. (Fontana, supra, 49 Cal.4th at pp. 362-363; People v. Chandler (1997) 56 Cal.App.4th 703, 708 (Chandler).) Section 1103 bars the admission of "opinion evidence, reputation evidence, and evidence of specific instances of the complaining witness' sexual conduct," but allows the use of "evidence offered to attack the credibility of the complaining witness as provided in Section 782." (§ 1103, subd. (c)(1) & (5).)
Section 782 allows evidence of prior sexual activity to be used for impeachment purposes if relevant to determining the credibility of a complaining witness. (§ 782, subd. (a).) Since the victim's credibility is frequently at issue in the prosecution of a sex crime, the statute contains several procedural hurdles. (Chandler, supra, 56 Cal.App.4th at pp. 707-708). To invoke the exception, a defendant must file a motion "stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness proposed to be presented and its relevancy in attacking the credibility of the complaining witness." (§ 782, subd. (a)(1).) The motion must be accompanied by an affidavit, filed under seal, containing the offer of proof. (Id., subd. (a)(2).)
"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." (§ 782, subd. (a)(3).) At the hearing, the defendant must convince the court the evidence is relevant under section 780 and is not inadmissible under section 352. If the requisite showing is made, the court will issue an order specifying what evidence may be introduced and the nature of the questions to be permitted. (§ 782, subd. (a)(4).)
Joya did not comply with the provisions of section 782, which is reason enough to reject his current claim. (See Montana v. Egelhoff (1996) 518 U.S. 37, 42 [even relevant evidence may be excluded "on account of a defendant's failure to comply with procedural requirements."].) He argues the non-compliance is excusable because "[t]he issue was fully litigated" via the People's motion in limine. On the contrary, the record shows the People's motion was unopposed. He cannot establish grounds for reversal on the imaginary premise that he sought to admit evidence of the alleged "sexting photos" and was prohibited from doing so. (Cf. People v. Partida (2005) 37 Cal.4th 428, 435 ["A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct."].)
Furthermore, the People's motion was properly granted since the evidence in question related to the victim's sexual history. Joya's attempt to characterize the material as admissible impeachment evidence is unavailing. He cites People v. Tidwell (2008) 163 Cal.App.4th 1447 (Tidwell) for the proposition that "[w]here prior sexual conduct in the form of false statements or complaints about sexual activity is sought to be introduced as impeachment, not to prove the victim's willingness to engage in sexual conduct, the provisions of section 782 do not apply." His synopsis is fairly accurate, but the evidence in dispute is a sexually suggestive photograph, not prior false statements or complaints about sexual activity.
The holding of Tidwell, which involved charges of sexual assault committed against a 21-year-old woman, is that evidence of a prior false report of molestation or rape is relevant to determining the credibility of the defendant's accuser. (163 Cal.App.4th at p. 1457.) There, the defendant had maintained the victim consented to their sexual encounter. Section 782 was found to be inapplicable "because it was [the complaining witness's] allegedly false complaints that the defense sought to use as impeachment evidence, not her prior sexual conduct or willingness to engage in sexual activity." (Tidwell, supra, at p. 1456.) Here, Victim #1 was not alleged to have made prior false accusations of sexual assault, and her consent was not a relevant issue. (People v. Soto (2011) 51 Cal.4th 229, 245 [" 'Lack of consent is not an element of the offense prohibited by [Penal Code] section 288, subdivision (b), and the victim's consent is not an affirmative defense to such a charge. The victim's consent or lack thereof is simply immaterial.' "].)
In summary, the record does not show Joya sought to introduce evidence of the alleged "sexting photos" on Victim #1's phone. In any event, the People's unopposed motion to exclude such evidence was properly granted. We therefore reject the assertion of error.
Alleged Sentencing Error
Penal Code section 1202.1, subdivision (a), requires trial courts to order specified persons "to submit to a blood or oral mucosal transudate saliva test for evidence of antibodies to the probable causative agent of acquired immunodeficiency syndrome (AIDS) within 180 days of the date of conviction." Among those required to submit to AIDS testing are defendants convicted of lewd conduct with a child in violation of Penal Code section 288, provided "the court finds that there is probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV [(human immunodeficiency virus)] has been transferred from the defendant to the victim[.]" (Pen. Code, § 1202.1, subd. (e)(6)(A)(iii).)
As part of his sentence, the trial court ordered Joya "to submit to mandatory AIDS testing pursuant to Penal Code Section 1202.1." He now alleges error based on the trial court's failure to make the necessary probable cause finding, and contends such a finding could not have been made in light of his acquittal on count 2. Although an objection was not made below, we are obligated to resolve this claim on the merits. (People v. Butler (2003) 31 Cal.4th 1119, 1123 (Butler) [forfeiture principles do not apply to a claim of insufficient evidence re: a finding of probable cause to order HIV testing].)
Standard of Review
The trial court is presumed to have made an implied finding of probable cause. (Butler, supra, 31 Cal .4th at p. 1127; People v. Stowell (2003) 31 Cal.4th 1107, 1114-1116.) "Probable cause is an objective legal standard—in this case, whether the facts known would lead a person of ordinary care and prudence to entertain an honest and strong belief that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim." (Butler, at p. 1127.) "Under the substantial evidence rule, a reviewing court will defer to a trial court's factual findings to the extent they are supported in the record, but must exercise its independent judgment in applying the particular legal standard to the facts as found." (Ibid.)
Analysis
The only incident involving a risk of transmission of bodily fluids was the alleged rape of Victim #1 in her bedroom. Since Joya was acquitted of that charge in count 2, he argues there is no evidence to support the implied finding of probable cause. We are not persuaded by his reasoning. "[A] jury verdict acquitting a defendant of a charged offense does not constitute a finding that the defendant is factually innocent of the offense or establish that any or all of the specific elements of the offense are not true." (In re Coley (2012) 55 Cal.4th 524, 554.) Therefore, a trial court may base its sentencing decision upon facts the jury implicitly found not to be true. (People v. Towne (2008) 44 Cal.4th 63, 85-86.)
Victim #1 testified to having vaginal intercourse with Joya for "ten minutes," explaining the time estimate was based on the number of songs on her "playlist" that had played while he was raping her. There was no indication Joya used a condom, and the testimony strongly suggested he did not. If accepted as true, the testimony could lead a person of ordinary care and prudence to entertain an honest and strong belief that semen was transferred from the defendant to the victim. Therefore, the challenged order cannot be reversed for insufficient evidence.
DISPOSITION
The judgment is affirmed.
/s/_________
ELLISON, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
PEÑA, J.
Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------