Opinion
E067097
11-29-2017
THE PEOPLE, Plaintiff and Respondent, v. GREGORY TAYLOR, Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV1303708) OPINION APPEAL from the Superior Court of San Bernardino County. R. Glenn Yabuno, Judge. Affirmed with directions. Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Gregory Taylor, guilty of (1) assault with the intent to sexually penetrate an unconscious person (Pen. Code, §§ 220, subd. (a)(1), 289, subd. (d)),, and (2) misdemeanor assault (§ 240). The trial court sentenced defendant to prison for a term of four years.
All subsequent statutory references will be to the Penal Code unless otherwise indicated.
The jury's verdict form for count 2 reflects that the jury found defendant "guilty of the offense of assault with intent to commit sexual penetration by [a] foreign object, who did unlawfully assault [the victim], with the intent to commit sexual penetration by a foreign object in violation of Penal Code section 289(d)." (All caps. omitted.) Section 289, subdivision (d), sets forth the offense of sexual penetration of an unconscious person. Accordingly, we understand defendant's conviction to be for the offense of assault with the intent to sexually penetrate an unconscious person by means of a foreign object. (§§ 220, subd. (a)(1) , 289, subds. (d)&(k)(1)&(2).)
Defendant raises three issues on appeal. First, defendant contends the trial court erred by not continuing the trial for seven months due to the unavailability of a prosecution witness, Edward Gomez. Second, defendant contends the trial court violated his right to confront witnesses by permitting the prosecutor to present Edward's prior testimony. Third, defendant contends there is an error in the court minutes and abstract of judgment. The People concede the minutes and abstract of judgment should be corrected. We direct the trial court to correct the minutes and abstract of judgment, but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. OFFENSES
The victim is female. Defendant and the victim were friends; their relationship was not sexual. Defendant and the victim met when they attended the same high school; they graduated in 2010. Defendant and the victim communicated with one another via Snapchat "a couple times [per] week" during the summer of 2013. In October 2013, defendant was 21 years old and the victim was 20 years old. The victim was close friends with Madeline Gomez.
On October 12, 2013, the victim attended a party at Madeline's home. The victim drank alcohol at the party, including "a lot" of tequila shots. During the party, the victim contacted defendant via Snapchat and invited him to the party. The victim passed out on the lawn. Madeline instructed her brothers, Edward and Daniel Gomez, to move the victim inside the house. Edward and Daniel placed the victim on the floor in the living room.
We use the witnesses' first names for the sake of clarity due to multiple witnesses at the trial having the last name of Gomez. No disrespect is intended. --------
At 1:00 a.m., after the party was over, defendant arrived at Madeline's house. Madeline's family invited defendant inside to eat. The family and defendant went into the kitchen. Between 1:30 and 2:00 a.m., Madeline's family went to sleep. Edward fell asleep on the couch in the living room—the same room where the victim was unconscious on the floor. At approximately 3:00 a.m., Madeline told defendant she was going to bed. Madeline offered to let defendant sleep on a futon in an upstairs office. Madeline showed defendant to the office and then went to sleep in her bedroom.
Edward, who was sleeping in the living room, awoke when a renter at the house arrived home, unlocked the front door, and went upstairs to the renter's bedroom. Edward then saw defendant walk downstairs, using a cell phone flashlight. Edward remained on the couch covered with a comforter. Defendant moved the victim onto her back; she had been laying on her stomach. Edward heard clothing being moved, such as the sound of zippers. When defendant and the victim were both on the ground, Edward could not see what was happening from his position on the sofa.
The victim felt "something going in and out of [her] vagina and around." The victim felt pressure in her vaginal area. The victim opened her eyes and found she was lying on her back. The victim saw an outline or shadow of a man kneeling over her. The victim's pants were down around her knees and her underwear was pushed to the side. The victim thought to herself, "What's going on? Where [am] I at? Who is this?" The victim said, "What are you doing?"
When the victim spoke, Edward said, "Hey," and ran toward the victim. Defendant ran upstairs, and Edward followed. When defendant reached the top of the stairs, he went into the office and closed the door. Edward yelled at defendant through the closed door, waking others in the house. The victim pulled up her pants and ran to the bathroom.
San Bernardino County Sheriff's Detective Evan Roberts interviewed defendant. During the interview, defendant admitted inserting his finger into the victim's vagina "and that he moved it in and out for five seconds." Defendant did not know how the victim's pants were removed, but she was wearing underwear at the time of the digital penetration. Defendant saw the victim's eyes were open—that she was awake—before he penetrated her. Defendant told the detective that Edward chased after him, which caused defendant to run upstairs.
B. MISTRIAL
In April 2015, defendant's first trial ended in a mistrial after the jury was unable to reach a verdict. Edward testified at the first trial.
C. UNAVAILABLE WITNESS
On December 11, 2015, the prosecutor filed a first amended information against defendant. On August 19, 2016, the parties announced they were ready for trial. On August 23, in a motion in limine, the prosecutor sought admission of Edward's prior testimony. The prosecutor explained that Edward was a Major in the United States Army and was unavailable for trial.
The prosecutor gave the following timeline of her attempts to secure Edward's testimony at trial: (1) on February 9, 2016, the prosecutor learned Edward would be deployed to Kuwait on February 18; (2) upon learning of the deployment, the prosecutor phoned Edward on February 9, but he did not answer the call; (3) the prosecutor requested, via e-mail, that an investigator personally serve Edward with a subpoena to appear on February 19; (4) the subpoena was personally served on February 12; (5) the prosecutor then requested of the investigator, via e-mail, that Edward be served with a subpoena to appear on February 17; (6) on February 16, the prosecutor again phoned Edward but he did not answer; (7) Edward appeared in court on February 17 and the court ordered Edward to be on call; (8) on February 17, the prosecutor contacted Edward's commanding officer, who informed the prosecutor that Edward could not appear in court on February 19 because Edward would be deploying to Kuwait on February 18, the deployment could not be delayed, and mobilization orders were in place; and (9) on February 18, Edward deployed to Kuwait, Edward was an essential member of the United States Army and could not return to California until the 451st Sustainment Command returned "sometime in 2017."
Defense counsel requested the trial be continued until March 2017 when Edward returned to California. Defense counsel asserted the crime was not recent and one trial had already occurred so there was no harm in continuing the case. Further, defense counsel asserted Edward's personal presence was important because the jury needed to assess his demeanor in order for defendant to have a fair trial.
The prosecutor objected to the requested continuance based upon the People's right to a speedy trial. The prosecutor contended a delay to March 2017 "is just simply too long." Further, the prosecutor asserted Edward's deployment could be extended—that March 2017 was "not even a firm date." The prosecutor said that if the trial court was considering granting the continuance, then the prosecutor would like to contact Edward's commanding officer to determine if there was any confirmation of the March 2017 return date.
The trial court said, "[T]he Court believes that there's still an unknown factor in the availability. Court feels that there was a sufficient opportunity to cross-examin[e] [Edward] at the last trial. The request to continue until he returns is denied. Do you wish to be heard further on the motion to admit pursuant to the evidence code? Prior testimony?" Defense counsel responded, "No. I believe that the case law is favorable. The law is favorable on behalf of the DA. So I'm going to submit."
DISCUSSION
A. DUE PROCESS
Defendant contends his due process right to a fair trial was violated when the trial court denied his request for a seven-month continuance.
We apply the abuse of discretion standard of review. (People v. D'Arcy (2010) 48 Cal.4th 257, 287.) " ' "There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." ' " (Id. at pp. 287-288.)
"[A]ll proceedings in criminal cases shall be set for trial and heard and determined at the earliest possible time." (§ 1050, subd. (a).) "Continuances shall be granted only upon a showing of good cause." (§ 1050, subd. (e).)
"The unavailability of a witness constitutes good cause for a continuance where five criteria are satisfied: (1) the party seeking the delay has exercised due diligence in securing the attendance of the witness at trial by legal means, (2) the testimony of the witness is material, (3) the testimony is not merely cumulative, (4) the attendance of the witness can be obtained within a reasonable time, and (5) the facts about which the witness is expected to testify cannot otherwise be proven. [Citation.] The party seeking the continuance has the burden of proving that each of the above elements is met." (Baustert v. Superior Court (2005) 129 Cal.App.4th 1269, 1277.)
As to the first factor, defendant's trial counsel did not explain what actions she took to secure Edward's attendance. Given that the prosecutor's office personally served Edward with a subpoena and had the court order Edward to be on call, we infer there is little more defendant's trial counsel could have done to secure Edward's presence. Accordingly, we conclude due diligence in securing Edward's attendance was established.
The second factor concerns whether Edward's testimony was material. The elements of assault with intent to commit a sexual offense are: (1) an assault, and (2) the intent to commit sexual penetration. (People v. Clifton (1967) 248 Cal.App.2d 126, 129.) "An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.)
The assault was primarily proven through (1) the victim's testimony that she felt "something going in and out of [her] vagina and around," as well as pressure in her vaginal area; and (2) defendant's statement to Detective Roberts that defendant inserted his finger into the victim's vagina "and that he moved it in and out for five seconds." This evidence reflects defendant touched the victim's vaginal area and had the ability to commit a violent injury upon her.
The intent to sexually penetrate an unconscious person (§ 289, subd. (d)) was primarily proven through (1) the victim's testimony concerning the feeling of being touched in her vaginal area, which indicates a sexual intent on defendant's part; (2) defendant's statement that he touched the victim's vagina, which also indicates a sexual intent; and (3) the victim's testimony that she awoke to defendant touching her, which indicates she was unconscious when defendant began touching her. This evidence reflects defendant intended to commit an act of sexual penetration upon the unconscious victim (§ 289, subd. (d)). (§ 220, subd. (a)(1).)
Edward testified about seeing defendant come downstairs, defendant moving the victim's limp body so she was on her back, hearing the sound of clothing being moved, hearing the victim say "What are you doing?," and chasing defendant upstairs. The most material portion of Edward's testimony was that the victim's body appeared limp when defendant moved her. That evidence aided in confirming the victim was unconscious (§§ 220, subd. (a)(1) & 289, subd. (d)).
As to the third factor, Edward's testimony was cumulative in that the victim said she awoke to defendant touching her vaginal area. Edward's testimony provided confirmation of the information given by the victim, but it was not new information.
The fourth factor concerns whether Edward's testimony could be obtained within a reasonable time. It was unclear exactly when Edward would return. It was possible he would return in March 2017—approximately seven months after the parties announced ready for trial. It was possible he would return later than March 2017. The uncertainty of when Edward would return supports a finding that the delay was unreasonable because it was not clear exactly how long the continuance would need to be.
The fifth factor concerns whether other evidence could prove the same facts to which the unavailable witness would testify. In this case, Edward's prior testimony could prove the same facts. Defendant's trial attorney from the first trial was also representing defendant in the retrial. Defense counsel cross-examined Edward in the first trial. Therefore, it is reasonable to infer that Edward's testimony and the cross-examination questions would be largely the same as in the first trial.
Given (1) the lack of clarity as to when Edward would return; (2) that Edward's testimony primarily provided confirmation of the events, rather than new information; and (3) Edward's prior testimony could prove the same facts to which Edward would testify, we conclude the trial court did not act arbitrarily in denying defendant's requested continuance. The trial court did not abuse its discretion and did not violate defendant's right of due process.
B. CONFRONTATION
Defendant contends the trial court violated his right to confront witnesses against him when it permitted the prosecutor to present Edward's prior testimony. In particular, defendant asserts the trial court erred by finding Edward was unavailable.
The People assert defendant waived this issue by telling the trial court, in regard to the prosecutor's use of Edward's prior testimony, "The law is favorable on behalf of the DA." "The right to confrontation may, of course, be waived, including by failure to object to the offending evidence." (Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 313, fn. 3.) We agree the issue has been waived by trial counsel's concession. Nevertheless, for the sake of thoroughness, we will address the merits of defendant's contention.
"Although important, the constitutional right of confrontation is not absolute. [Citations.] 'Traditionally, there has been "an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant [and] which was subject to cross-examination." ' " (People v. Herrera (2010) 49 Cal.4th 613, 621.) "A witness who is absent from a trial is not 'unavailable' in the constitutional sense unless the prosecution has made a 'good faith effort' to obtain the witness's presence at the trial." (Id. at p. 622.) We apply the de novo standard of review. (People v. Friend (2009) 47 Cal.4th 1, 68.)
We address the prosecutor's efforts prior to Edward's deployment. On February 9, the prosecutor learned Edward would be deployed overseas. On February 12, the prosecutor's office personally served Edward with a subpoena. On February 17, Edward appeared in court and the court ordered he be on call. On February 18, Edward was deployed overseas. The prosecutor acted in a timely and reasonable manner by having Edward personally served and ordered on call by the court prior to deployment. There is little else the prosecutor could have reasonably done to secure Edward's attendance at trial. Therefore, the prosecutor made a good faith effort to obtain Edward's presence at trial.
Next, we examine Edward's unavailability after deployment. Securing the presence of a military witness turns, in part, on "the effect that a military witness's absence will have on his or her unit and whether that absence will adversely affect the accomplishment of an important military mission or cause manifest injury to the service." (U.S. v. Jones (N-M.C.M.R. 1985) 20 M.J. 919, 926.)
In a letter, Edward's commanding officer explained that Edward is "a key and essential member" of the 451st Sustainment Command and that Edward's "skillset is a vital part of [the] operation." Given the commanding officer's assessment of the unit's need for Edward's skills, there is substantial support for a finding that Edward's attendance at trial would negatively impact his unit and adversely affect the unit's mission. As a result, any further effort by the prosecutor to have Edward returned from overseas would have been futile. (See People v. Cavazos (1944) 25 Cal.2d 198, 201.) Futile acts are not required as part of the prosecutor's good faith effort. (People v. Herrera, supra, 49 Cal.4th at p. 621.) In sum, the prosecutor made a good faith effort to obtain Edward's presence at trial. The trial court did not err.
Defendant contends the prosecutor should have video recorded Edward's testimony or notified defense counsel of Edward's impending deployment so defense counsel could secure Edward's testimony at trial as needed. In regard to video recording Edward, defendant made no such request at trial and therefore has waived the issue. For example, defendant did not request Edward testify via videoconference call at the retrial.
In regard to notifying the defense, defendant does not explain what more he would have done to secure Edward's presence at trial. The prosecutor had Edward personally served with a subpoena and had the court order Edward to be on call. Because defendant does not inform this court of what more he would have done had he learned of Edward's impending deployment, we do not address this issue further.
C. MINUTES AND ABSTRACT OF JUDGMENT
Defendant contends the abstract of judgment and court minutes incorrectly reflect defendant was convicted of assault with intent to commit mayhem, rape, sodomy, or oral copulation (§ 220, subd. (a)(1)). The People concede the errors should be corrected.
The jury's verdict form for count 2 reflects that the jury found defendant "guilty of the offense of assault with intent to commit sexual penetration by [a] foreign object, who did unlawfully assault [the victim], with the intent to commit sexual penetration by a foreign object in violation of Penal Code section 289(d)." (All caps. omitted.)
The court minute orders for the reading of the jury's verdict and the sentencing hearing reflect the jury found defendant guilty, in count 2, of assault with intent to commit mayhem, rape, sodomy, or oral copulation (§ 220, subd. (a)(1)). The abstract of judgment also reflects defendant was convicted of assault with "intent to commit, mayhem, rape, sodomy." (All caps. omitted.)
Section 220, subdivision (a)(1), provides, "[A]ny person who assaults another with intent to commit mayhem, rape, sodomy, oral copulation, or any violation of Section 264.1, 288, or 289 shall be punished by imprisonment in the state prison for two, four, or six years." The court minutes and abstract of judgment are incorrect. They should reflect defendant was found guilty of assault with intent to violate section 289, subdivision (d). We will direct the trial court to issue corrected minute orders and a corrected abstract of judgment.
DISPOSITION
The trial court is directed to issue (1) corrected minute orders for September 15, 2016 and October 17, 2016, reflecting defendant was convicted in count 2 of assault with intent to violate section 289, subdivision (d), (§ 220, subd. (a)(1)); and (2) a corrected abstract of judgment reflecting defendant was convicted in count 2 of assault with intent to violate section 289, subdivision (d) (§ 220, subd. (a)(1)). In all other respects, the judgment tis affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: SLOUGH
J. FIELDS
J.