Opinion
C078413
03-10-2017
THE PEOPLE, Plaintiff and Respondent, v. KITTA THIPHANEP, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SF125566A)
Defendant Kitta Thiphanep was charged with 18 counts of lewd and lascivious acts against three child relatives. A jury convicted defendant of 12 counts, found him guilty of lesser included crimes on two counts, failed to reach a verdict as to two counts, did not consider one count, and one count was dismissed prior to jury deliberations. Defendant filed a motion for a new trial based on juror misconduct, which the trial court denied. Sentenced to 47 years to life in state prison, defendant appeals, arguing one count violates the statute of limitations, the court abused its discretion in denying his motion for a new trial, and several of his convictions must be reversed because the jury did not find beyond a reasonable doubt he was not eligible for probation. We shall reverse defendant's conviction on count 18. In all other respects we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
An information charged defendant with continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a)—count 1); forcible lewd acts upon a child (§ 288, subd. (b)—count 2); lewd acts upon a child (§ 288, subd. (a)—counts 3-13); forcible oral copulation (§ 288a, subd. (c)(2)—counts 14-15); lewd act upon a child 14 or 15 years of age (§ 288, subd. (c)—counts 16-17); and annoying or molesting a child (§ 647.6, a misdemeanor—count 18). Fifteen counts contained further multiple victim allegations. (§ 667.61, subd. (e)(4).)
All further undesignated statutory references are to the Penal Code.
Defendant entered pleas of not guilty on all counts. A jury trial followed, and the following facts were introduced at trial.
THE VICTIMS
M.T. (Counts 1 through 4)
M.T., born in 2000, is the daughter of defendant's brother, K. Defendant lived a few blocks away from her family, and the two families often dined together and socialized at one another's homes. Defendant picked up M.T. from school when she was in the fourth, fifth, and sixth grades and drove her to his house, where he babysat her.
During the summer of 2008, when M.T. was between second and third grades, defendant began fondling her breasts. The first touching took place while M.T. was on the sofa at defendant's house watching television. He came up behind her, put his hand down the front of her shirt and touched her breasts. Subsequently, defendant touched M.T.'s breasts often, almost every time she was at his house. They were alone when the touching took place. M.T. estimated defendant touched her breasts 75 to 100 times during this period. (Count 1.)
In the summer of 2011 M.T. was watching television in defendant's living room. He came inside, put his hands down her shirt, and touched her breasts. M.T. pushed him away, but he tried to grab her by the hand and she fell to the floor. Defendant dragged M.T. from the living room to the guest room, pushed her on the bed, pulled off her shirt, and pulled down her jeans. She pushed him away, unlocked the door, and ran to the garage, where her father was working. M.T. told her father she wanted to go home but did not tell him what had happened. (Count 2.)
By the fall of 2012 M.T. could no longer push defendant away, so she told her older cousin Ko., defendant's son, that defendant was touching her. Although Ko. told M.T. he would make the touching stop, defendant continued. In mid-November M.T. told her parents that defendant had touched her. M.T.'s father, K., was in disbelief and her mother wept. M.T. estimated defendant touched her breasts between 75 and 100 times. The last time defendant touched her breasts was two to three weeks before she told her parents. (Counts 3 & 4.)
After M.T. told them of the abuse, her parents cut off defendant's contact. Her father told his older brother, So., the head of the family, about it. M.T.'s Uncle John hit defendant in the mouth at a holiday party after learning of the abuse.
Afterward, defendant called K. K. asked defendant for an explanation, but defendant did not respond and hung up. Defendant went to Laos, and M.T.'s mother, Ma., thought the family had banished him. After defendant returned, Ma. broke with her cultural tradition of handling things within the family and contacted the police. S.K. (Counts 5, 7 through 10)
S.K. was born in 1989. Her sister Ma. is 10 years older and is married to defendant's brother. S.K. attended fourth and fifth grades in Willows; the family moved to Orland when she was in sixth grade. She attended middle and high school in Orland. S.K. visited her sister Ma. and Ma.'s husband K. in their Stockton home during school breaks and the summers between third and sixth grade. Defendant also lived in Ma.'s home during two or three of the summers.
When S.K. was nine defendant touched her breasts and grabbed her buttocks when she visited Ma. in Stockton. The first incident occurred at Ma.'s home on Chatsworth. Defendant touched her in the middle of the night, and when S.K. woke up, defendant's hands were down her shirt. He touched her breasts and she tried to move his hand. S.K. also remembered an incident when defendant grabbed her buttock. Defendant grabbed S.K.'s breasts many times at her sister Ma.'s house in Stockton, whenever he could get her alone.
Defendant also grabbed S.K.'s buttocks. He sometimes grabbed her when there were other people around, but no one saw it. When he grabbed her on the bottom, defendant touched her over her clothing. This occurred frequently, and S.K. lost track of how often it happened.
In addition, between September 2003 and May 2009, defendant touched S.K.'s breasts or buttocks on more than 10 occasions at Ma.'s house. (Count 5, nine years old; Count 7, 10 years old; Count 8, 11 years old; & Count 9, 12 years old.)
Between 2003 and 2004 when she was 14, S.K. babysat M.T., who was a toddler. As M.T. slept, S.K. was lying on the floor watching television. Defendant got on top of her and rubbed his penis on her back. S.K. ran upstairs and defendant followed her. He put his finger down her pants and touched her vagina. Then he smelled his finger and said, "It smells good" and left. S.K. believed she was between 12 and 14 at the time, but the evidence revealed she was 14 based on the residence where the incident took place. (Count 10.) Eventually S.K. told her sister about the abuse, and her sister contacted the police. N.S. (Counts 11 through 13, 16 through 18)
N.S. was born in 1991. Defendant was married to N.S.'s older sister, P. N.S. spent summers and holidays at her sister's home.
Defendant began touching N.S. when she was eight years old. The first incident took place at N.S.'s home in Butte County. Defendant touched her breasts after she took a bath. Defendant also approached her from behind, groped her breasts, unbuttoned her pants, and put his hand down her pants.
Defendant's touching continued throughout N.S.'s childhood and adolescence. He touched her breasts "every time" she saw him. (Count 11, 11 years old; Count 12, 12 years old; Count 13, 13 years old; Count 16, 16 years old; & Count 17, 17 years old.)
N.S. also testified that defendant forced her to orally copulate him while he visited her family in Butte County. The jury was unable to reach a verdict on the oral copulation counts.
During her senior year of high school, N.S. lived with defendant and her sister. She had her own bedroom. N.S. recalled waking up at night when defendant touched her breasts. Once defendant approached her as she washed dishes in the kitchen. He put his hand down her pants and fondled her breasts. (Count 18.)
A few years after N.S. finished high school, she and her boyfriend stayed with defendant and N.S.'s sister. While her boyfriend was at work one night, defendant came into N.S.'s room and touched her breasts. N.S. asked him to stop, but he offered to let her stay in the home rent free if she let him touch her.
EXPERT EVIDENCE
An expert in child sexual abuse accommodation syndrome testified about the behavior of children who have been victims of sexual abuse. The behavior includes keeping the abuse secret, feelings of helplessness, accommodating the abuse by adopting a coping strategy, delaying disclosure of the abuse, and minimizing it or recanting accusations.
DEFENSE
Defendant testified he did not touch N.S., M.T., or S.K. He also denied the molestations when interviewed by the police.
Defendant presented a number of character witnesses as well as witnesses to impeach the victims. His sister Ammala testified defendant had a reputation for honesty. Ammala never saw any inappropriate conduct between defendant and S.K. or M.T. Defendant's wife and son also testified. His wife stated she never saw anything inappropriate between defendant and N.S. Defendant's son also testified he never witnessed inappropriate conduct with S.K. He never heard N.S. scream during the night when she stayed with them. Defendant had a reputation for being honest.
So., defendant's brother, denied sending defendant to Laos to punish him for molesting M.T. and did not discuss the matter with relatives. He testified defendant was a good person and he did not have concerns about his brother being around his children.
Two of defendant's nieces testified in his defense. They lived in the same house with defendant when they were 11 and five years old. He never did anything to make them uncomfortable.
Monruedee Stiehr had known defendant for four years. She testified defendant was honest and she never saw him act inappropriately with any of the victims.
Deputy Sophia Cantwell testified that defendant did not make any admissions during a pretext phone call on May 13, 2013. Deputy Cantwell sent defendant a letter requesting that he call her. Defendant called her on July 10, 2013. Cantwell recorded the call, and defendant denied touching M.T. or S.K. and stated he was innocent.
VERDICT AND SENTENCING
The jury convicted defendant on counts 1, 3, 4, 5, 7, 8, 9, 11, 12, 13, 16, and 18. The jury found defendant not guilty of the crimes charged in counts 2 and 10 but convicted him of simple assault (§ 240), the lesser included offense for those crimes. The jury failed to reach a verdict on counts 14 and 15. Count 17 was not submitted to the jury. The jury returned true findings on the multiple-victim circumstance as to counts 1, 3, 4, 5, 7, 8, 9, 11, 12, and 13.
Defendant filed a motion for a new trial based on juror misconduct. Following a hearing, the trial court denied the motion.
The trial court sentenced defendant to an aggregate term of 47 years to life in state prison: three consecutive terms of 15 years to life on counts 1, 5, and 11, plus the two-year middle term for count 16. The court also imposed concurrent terms of 15 years to life on counts 3, 4, 7, 8, 9, and 12. The court granted the prosecution's request to dismiss counts 14, 15, and 17. Defendant filed a timely notice of appeal.
DISCUSSION
Statute of Limitations
Defendant contends his misdemeanor conviction in Count 18 for violating section 647.6 on or about and between July 1, 2008, and October 1, 2008, must be reversed because it was time barred. The People concede the issue.
Background
Count 18 charged defendant with annoying or molesting a child, a misdemeanor. The offense was alleged to have occurred between July 1, 2008, and October 1, 2008. The alleged victim, N.S., was born in 1991. The jury convicted defendant of this offense.
The verdict form refers to this count as Count 17, but the court corrected the error.
The felony complaint filed September 26, 2013, did not include the misdemeanor violation charge. A first amended felony complaint, which also did not include the charge, was filed February 7, 2014. The amended complaint alleged a violation of forcible rape in count 20. During argument at the preliminary hearing, the prosecution did not seek a holding order for forcible rape. Instead, the prosecution asked for and was granted permission to amend the charge to a misdemeanor violation of section 647.6 relating to conduct that occurred when N.S. was a senior in high school and living with defendant. At the conclusion of the preliminary hearing on March 5, 2014, defendant was held to answer on the charge. This section 647.6 violation became count 18 in the information filed in March of 2014.
Discussion
When the prosecution fails to allege facts in the charging document that toll or extend an otherwise expired limitations period, absent an express waiver, a defendant convicted of a time-barred crime may challenge the statute of limitations after conviction. (People v. Williams (1999) 21 Cal.4th 335, 345.)
The People concede the conduct charged in count 18 does not relate back to the attempted forcible rape and note that the prosecution made no such argument. Defendant contends, and the People agree, that the prosecution for the crime commenced with the filing of the information, long after the expiration of the one-year statute of limitations. Since the crime is time barred, we reverse defendant's conviction on count 18.
Motion for a New Trial
Defendant contends the trial court abused its discretion in denying his motion for a new trial based on juror misconduct without holding an evidentiary hearing. According to defendant, the court erred in failing to conduct an evidentiary hearing on material questions of fact left unanswered by the written declarations and the oral proceedings on the motion for a new trial. Specifically, defendant argues Juror No. 1 raised questions of material fact that were not answered by the declarations of Juror Nos. 2, 6, and 11 or the oral proceedings in the motion for a new trial. These questions include: (1) whether the jury voted on the section 667.61 multiple victim allegation, (2) whether Juror No. 2 told the jury her husband was a police officer and that defendant was guilty, and (3) whether Juror No. 11 stated that "it did not look good" for defendant after the first witness testified.
Evidence of Juror Misconduct
Defendant filed a motion for a new trial based on juror misconduct. The motion included an affidavit from Juror No. 1.
Juror No. 1 stated that Juror No. 2, the foreperson, told the deliberating jurors her husband was a police officer who said that "if the defendant in this case had made it this far along in the process and was in custody, he was guilty." Based on this, Juror No. 1 believed Juror No. 2 had discussed the case with her husband. In addition, Juror No.1 stated after the prosecution's first witness testified that Juror No. 11 told him, outside of court, "Well, it doesn't look good for [defendant] does it?" Juror No. 1 also asserted the section 667.61 multiple-victim allegation "was never presented or offered for discussion by our foreperson, Juror No. 2, or any other juror. I never voted or was given an option with regards to this enhancement."
The prosecution filed an opposition to the motion for a new trial. The opposition included affidavits from Juror Nos. 2, 6, and 11.
Juror No. 2 stated she never told jurors her husband was a police officer or spoke to her husband about the case during the proceedings. Juror No. 2 also reviewed the multiple-victim enhancement with each juror and asked each to express his or her vote out loud. Juror No. 1 participated in the exchange. She admitted once yelling at Juror No. 1, but she immediately apologized for the outburst.
Juror No. 6 confirmed that Juror No. 2 read each count and the more than one victim enhancement aloud and took a vote on each count and enhancement. Juror No. 1 participated in the deliberations. In addition, Juror No. 2 never said her husband, a police officer, had stated defendant was probably guilty if he had come this far.
Juror No. 11 stated he never discussed the case with another juror prior to deliberations and did not recall making a comment to Juror No. 1 regarding the evidence. He knew Juror No. 2's husband was a police officer, but she was not the one who told him. Juror No. 11 never heard Juror No. 2 discuss her husband or express any opinion that her husband believed defendant was probably guilty. Juror No. 1 participated in all determinations as to each count and allegation, and each count and allegation was voted upon. No decision was the product of any threat.
Hearing on the Motion
The court held a hearing on the motion. Defense counsel argued the motion should be granted and further investigation was required because Juror No. 2 did not say that she did not discuss the case at all with her husband, but only that she did not discuss it with him during deliberations. Defense counsel also argued the multiple-victim enhancement was not discussed or voted upon, claiming the unusual circumstances surrounding the return of the verdicts supported the claim. In addition, undue pressure was exerted upon Juror No. 1 to return guilty verdicts, and Juror No. 1 approached defense counsel immediately after the verdicts.
Defense counsel stated the jury returned verdict forms finding defendant guilty of the lesser included offenses without any findings on the greater. Subsequently, upon being advised of the error in the verdict forms, the jury returned felony verdicts on the majority of the offenses. --------
The prosecution noted each of the jurors had been interviewed on tape regarding the alleged misconduct. None of the jurors corroborated Juror No. 1's claims, including his assertion that Juror No. 2 told them her husband said defendant was guilty. Because of the holidays and the timing of the hearing, the prosecution was only able to obtain affidavits from three jurors. Juror No. 1 was also interviewed. Although some of Juror No. 1's answers differed from his affidavit, he declined to sign an affidavit outlining the differences.
Following argument, the trial court denied the motion.
The trial court considered the background information provided by Juror No. 1 and concluded he was an experienced juror and knew how to bring matters to the attention of the court. Juror No. 1 did not alert the court to the alleged misconduct at the time it occurred. The court found it difficult to believe Juror No. 1 was intimidated by Juror No. 2. The court noted all the juror declarations submitted by the prosecution refuted Juror No. 1's claim regarding Juror No. 2's informing the jury about her husband's comments. Given the other jurors' declarations, a further hearing would amount to little more than a "fishing expedition." The court found Juror No. 1 lacked credibility regarding the alleged misconduct of Juror No. 2 and Juror No. 11 and his alleged failure to vote on the section 667.61 allegation.
Discussion
A defendant may move for a new trial based on juror misconduct. (§ 1181, subd. (2).) In determining whether to grant a new trial based on such misconduct, the trial court engages in a three-step review. First, the court determines the admissibility of the evidence presented. Second, if the court finds the evidence admissible, it decides whether the evidence establishes misconduct. Finally, if the court finds misconduct, it must determine whether the misconduct was prejudicial. Once misconduct has been established, prejudice is presumed. Reversal is required unless the court finds, after examining the entire record, there is no substantial likelihood any juror was improperly influenced to the defendant's detriment. (People v. Bryant (2011) 191 Cal.App.4th 1457, 1467; People v. Duran (1996) 50 Cal.App.4th 103, 111-113.)
When a defendant moves for a new trial based on juror misconduct, the trial court may conduct an evidentiary hearing when it concludes such a hearing is necessary to resolve material, disputed issues of fact. (People v. Hedgecock (1990) 51 Cal.3d 395, 415.) We reverse the court's decision whether to conduct an evidentiary hearing on juror misconduct only for an abuse of discretion. (People v. Dykes (2009) 46 Cal.4th 731, 810.)
The trial court carefully considered the evidence presented and concluded Juror No. 1's claims did not withstand scrutiny or support a finding of juror misconduct, or warrant an evidentiary hearing. We find no abuse of discretion.
Although defendant contends the trial court's credibility determination was based on its misreading of the written declarations before it and its unsupported characterization of Juror No. 1, we find no such failings in the trial court's analysis. The court found Juror No. 1's allegations concerning Juror No. 2 and Juror No. 11 unsupported by the evidence. In addition, the court found no other juror corroborated Juror No. 1's claim that there was no vote on the section 667.61 allegation. According to the court, allowing an evidentiary hearing to question Juror No. 2 would amount to a fishing expedition, since Juror Nos. 6 and 11 refuted Juror No. 1's claims concerning Juror No. 2.
The court also noted Juror No. 1 should have raised these allegations earlier. Juror No. 1 was an "experienced juror" who had served on a jury twice before and was 63 years old. Juror No. 1 was the first juror polled after the verdicts were rendered. Based on the responses of the other jurors, the court found Juror No. 1 not credible and that no misconduct had occurred. We find the trial court's conclusions supported by substantial evidence.
Eligibility for Probation
Finally, defendant argues his sentences for violations of section 288, subdivision (a) in counts 5, 7, 8, 9, 11, 12, and 13 must be reversed because the trial court imposed sentence without the jury finding beyond a reasonable doubt whether defendant was eligible for probation. These convictions, defendant contends, violate the Sixth Amendment to the United States Constitution, citing Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Alleyne v. United States (2013) 570 U.S. ___ (Alleyne).
Background
In counts 5, 7, 8, 9, 11, 12, and 13 defendant was charged with a violation of section 288, subdivision (a) and with a multiple-victim allegation within the meaning of section 667.61, subdivision (e)(4). The offenses allegedly occurred between May 1998 and November 25, 2005. The jury found defendant guilty of each count and found the multiple-victim allegations true.
The trial court sentenced defendant to 15 years to life on each of counts 5 and 11, with each to be served consecutive to each other and the indeterminate sentence imposed on count 1. Sentence on the remaining counts was fixed at 15 years to life and ordered to run concurrently with the sentences in counts 1, 5, and 11.
Discussion
Section 667.61, also known as the "one strike" law, provides for mandatory sentences of 15 years to life for defendants convicted of a qualifying sex offense, including a violation of section 288, subdivision (a), under one of the circumstances listed in section 667.61, subdivision (e), including the commission of crimes against multiple victims. (§ 667.61, former subds. (b), (e)(5).) It was enacted effective November 30, 1994. (Added by Stats. 1993-1994, 1st Ex. Sess., ch. 14, § 1, p. 8570.)
During the period in which defendant committed the acts charged, a violation of section 288, subdivision (a) subjected a defendant to an indeterminate life term unless the defendant qualified for probation under section 1203.066, subdivision (c). (§ 667.61, former subd. (c)(7) & § 1203.066, former subd. (c).) To be eligible for probation: (1) defendant must be the victim's natural parent or a member of the victim's household who has lived in the household, (2) a grant of probation is in the best interests of the child, (3) defendant's rehabilitation is feasible, (4) defendant has been removed from the household until the court determines that the best interests of the victim would be served by returning defendant to the household, and (5) there is no threat of physical harm to the child victim if probation is granted. (§ 1203.066, former subd. (c)(1)-(5).) The one strike law was amended, making a simple violation of section 288, subdivision (a) a qualifying offense. (Initiative Measure Prop. 83, § 12, approved Nov. 7, 2006, eff. Nov. 8, 2006.)
The Supreme Court in Apprendi found that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at p. 490.) In Alleyne, the Supreme Court held that "any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury." (Alleyne, supra, 133 S.Ct. at p 2155.) However, according to Alleyne, this "does not mean that any fact that influences judicial discretion must be found by a jury." (Id. at p. 2163.)
Alleyne is not applicable to the case before us. The issue of probation eligibility does not increase the mandatory minimum for an offense since finding the defendant ineligible for probation is not a form of punishment. (People v. Woodward (2011) 196 Cal.App.4th 1143, 1152.) Moreover, it is within the court's discretion to exempt defendant from probation ineligibility under section 1203.066, former subdivision (c). Therefore, even if the jury found defendant eligible for probation, the trial court retained jurisdiction to reject the recommendation. Alleyne did not eliminate the trial court's discretion in sentencing decisions. (Alleyne, supra, 133 S.Ct. at p. 2163.)
Defendant argues the version of the one strike law in effect when he committed his offenses "placed the mandatory minimum floor at probation and the maximum punishment at an indeterminate prison term" based on the court's discretion. However, as defendant acknowledges, this argument was rejected in People v. Benitez (2005) 127 Cal.App.4th 1274 (Benitez).
In Benitez, the Court of Appeal held: "[T]he proviso in . . . section 667.61, subdivision (c)(7) (that a defendant is unqualified for probation) is not an element of the enhancement to be negated upon proof to a jury. Rather, it is a legislative grant of authority to the trial court to entertain a request for probation (should a defendant satisfy the criteria in section 1203.066, subd. (c)) despite eligibility otherwise for sentencing under section 667.61." (Benitez, supra, 127 Cal.App.4th at p. 1278.) The Benitez court concluded: "[F]inding a defendant ineligible for probation is not a form of punishment, because probation itself is an act of clemency on the part of the trial court. [Citation.] Because a defendant's eligibility for probation results in a reduction rather than an increase in the sentence prescribed for his offenses, it is not subject to the rule of Blakely [v. Washington (2004) 542 U.S. 296 ]." (Benitez, at p. 1278.) Accordingly, we find no error in the trial court's sentencing of defendant.
DISPOSITION
Defendant's conviction on count 18 is reversed. In all other respects, the judgment is affirmed.
RAYE, P. J. We concur: ROBIE, J. MAURO, J.