Opinion
F073873
10-16-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS TORRES, Defendant and Appellant.
Matthew A. Siroka, 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, Janet E. Neeley, Lewis A. Martinez, and William K. Kim, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Madera Super. Ct. No. MCR043064)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. Rigby, Judge. Matthew A. Siroka, 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, Janet E. Neeley, Lewis A. Martinez, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant/defendant Jose Luis Torres was charged with attempted forcible commission of a lewd and lascivious act on his niece, a child under the age of 14 years (Pen. Code, §§ 664/288, subd. (b)(1)). He pleaded not guilty, and not guilty by reason of insanity, and the two trials were bifurcated.
All further statutory citations are to the Penal Code unless otherwise indicated.
As we will discuss below, "[i]f a defendant pleads both not guilty and not guilty by reason of insanity, the trial is bifurcated. In the guilt phase of the trial, which occurs first, the defendant is conclusively presumed to have been legally sane at the time of the offense. [Citations.] If the defendant is found guilty, the trial proceeds to the sanity phase, in which the defendant has the burden to prove 'by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.' [Citations.]" (People v. McCarrick (2016) 6 Cal.App.5th 227, 246 (McCarrick).)
At the guilt trial, the jury convicted defendant of the charged offense. At the bifurcated sanity phase, the same jury heard the evidence, but was deadlocked and a mistrial was declared. A new jury was impaneled for a second sanity trial, and that jury found defendant was sane when he committed the offense. Defendant was placed on probation for five years subject to certain terms and conditions.
On appeal, defendant contends there is insufficient evidence to support the jury's findings of guilt on the substantive offense and that he was legally sane. He also contends the court failed to properly address his motion for new trial on the substantive offense. Defendant challenges several terms and conditions imposed for his probation.
We affirm defendant's conviction and the jury's finding that he was sane. We remand the matter for further findings on the terms and condition of probation.
PART I
GUILT PHASE EVIDENCE
In 2012, J.T. and L.T. lived in Madera with their minor daughter ("Minor") and her younger siblings.
J.T. testified he was Minor's stepfather and described her as his daughter, so we will refer to him as her father.
J.T.'s father, D.T., and his brother, defendant Jose Luis Torres, lived in the same house with Minor and her parents. Minor testified she had a normal relationship with defendant, but she did not like to talk to him, and they were not that close. She further testified that defendant never acted like he was sexually attracted to her.
On March 10, 2012, Minor and her family were at home. Around 7:00 a.m. or 8:00 a.m., she was making breakfast in the kitchen while her parents were still asleep in their bedroom. Minor was wearing a T-shirt, shorts, and underwear.
Defendant was sitting on the couch in the living room. Defendant got up from the couch and asked Minor to help him with something. She agreed. Defendant told her to go into the garage with him. She was not concerned because nothing had ever happened with defendant, but testified his mood was "like very weird like something was wrong with him."
Minor followed defendant into the garage. There was a car in the garage, along with an air compressor, a motorized wheelchair, and storage boxes. Defendant turned on the air compressor and it made a loud noise. She testified she got a little nervous, "like something wasn't right."
Minor testified that defendant gestured toward the motorized wheelchair and told her, " 'Put your hands right here on this little automobile seat.' " She thought defendant wanted her to help him move the chair.
Minor sat on the chair. Defendant said, " 'No, not like that,' " and told her to get up. She testified that she was still sitting in the chair, but defendant grabbed her arm "hard" at the elbow. He made her stand up "and he turned me around." Minor felt it was not right, and he should not be touching her.
Minor testified that defendant used both of his hands and pushed her elbows down. He made her put her arms on the chair's arm rests. Defendant held onto her body and started to pull down her shorts. Defendant managed to pull down both her shorts and underwear about three or four inches.
Minor told him to stop and asked what he was doing. Defendant said not to worry about it.
Minor testified that she shifted her body to move away from him. She tripped on the power cord to the air compressor and fell on the garage floor. After she fell, she realized defendant was down on his knees. She testified that defendant made a facial gesture, as if he was wiping under his nose, and said, " 'Please, [Minor]. Please.' " She testified that defendant acted like he was begging her to do it. She said no.
Minor was scared. She got up from the floor and started to run to her parents' bedroom. She fell and cut her toe on a vacuum cleaner that was in the garage. She got up and ran into the house.
Minor's parents were asleep when she ran into their bedroom. She was crying and told them that defendant tried to pull down her shorts. She was upset and stayed with her mother in the bedroom. She suffered a deep cut on her toe from the fall.
J.T. testified that he immediately confronted defendant and asked what he did to Minor. Defendant said he "didn't do nothing." J.T. said that Minor would not lie and kicked defendant out of the house. Defendant left that morning, and J.T. called the sheriff's department. The investigation
Around noon on March 10, 2012, Deputy Padgett responded to J.T.'s house and interviewed Minor, who said that her uncle tried to "rape" her. She was visibly shaken and upset.
Deputy Padgett testified that Minor reported the incident happened in the garage. They went into the garage, and she showed Padgett the air compressor and said that defendant turned it on. Minor said defendant asked her to place both her arms on a "little motorized wheelchair, like a little rascal wheelchair with arm rests." She said she did that, and defendant stood behind her. He pulled up her shirt really fast and tried to pull down her pants. She said she started screaming and told him no. Minor said she fell against the car and ran away. She tripped on the vacuum cleaner and stubbed her toe as she ran away and went straight to her father's room and told him what happened. Jail telephone calls
Deputy Padgett testified that Minor said defendant pulled up her shirt and tried to pull down her pants. As we will explain below, defendant relied on Minor's statement about her shirt and claimed it was the only act he committed, and that he never tried to pull down her pants.
Defendant was arrested and held in jail. He placed two calls from the jail. The telephone calls were recorded, and the recordings were introduced at trial.
Defendant was initially held in custody in 2012, but he was subsequently released on bail pending his trial, which did not occur until 2015.
Defendant's father
On March 11, 2012, the day after his arrest, defendant called his father, D.T. D.T. told defendant to ask for help and to "[l]et go of tablet and notice the damage you did.... Well, believing in that stupidity."
As we will also discuss below, the comments about a "board" and "tablet" refer to defendant's use of a Oujia board. The defense relied on the theory that defendant was suffering from psychotic delusions, he was using a Ouija board at the time of the offense, the delusions led him to believe Minor was pregnant, and he raised her shirt and touched her stomach only to find out if she was pregnant.
Defendant asked if J.T. and the family had moved. D.T. said they were still at the house. Defendant said it was "against the law." D.T. agreed it was "against the law but you didn't do it with bad intentions." Defendant said, "that board made me evil" and it was "one of the demons" that stuck to him when he played the board.
D.T. told defendant to read the Bible so he could repent. Defendant said he "already repented," and he knew he had affected the family. Defendant said he was going to put certain family members on his visiting list.
Defendant also said, "I know I did wrong but now I am paying for all of it." Defendant asked if "she" was going to withdraw the charge. D.T. said they did not press charges. Defendant said that he thought she did press charges and asked if she called the police. D.T. said they called the police and told defendant to talk to the lawyer. Defendant said that lawyers will tell a person that "if you say guilty maybe they give you less."
Defendant said J.T. was angry because his wife called the police. Defendant told J.T. not to be angry. "I told [J.T.] - [A.T.] [referring to another brother], 'You know what? If it were your daughter, you would also call the police.' So I ... I admit it. I don't blame her."
J .S.
On March 12, 2012, two days after his arrest, defendant was still in jail and called a friend, J.S. Defendant told J.S. that he was in jail and might get charged. J.S. asked what happened. Defendant said it was a long story and he did not want to talk about it because "they can hear," but he might "have to do maybe two or three years, fool."
Defendant said he did something "very ... shameful to say dude.... Uh, it's kind of hard to tell you, fool. Even shameful, bro..."
J.S. replied that they had told him what happened. Defendant asked what he was told, and J.S. said not to say anything. Defendant said he knew everything was being recorded, but said, "[t]hey're exaggering." Defendant was sure "they've made this much bigger," and he had to talk to his public defender.
Defendant was "pretty sure" that he was "going to do time." Defendant asked if his brother was mad. J.S. said he was "more hurt ... right now."
Defendant said he was worried that J.S. would not talk to him on the phone. J.S. said he would not judge him. Defendant's father thought "she was gonna drop the charges but I doubt it. I don't think she'll drop them ...."
Defendant added: "... I mean, the only thing I did, you know, I touched her, but that's it."
Defendant told J.S. that he had been "playing the board" before that, and he had played "the Ouija board" three months straight. J.S. said defendant was messed up.
Defendant said he was messed up and "even the game told me I was going to jail.... I got lured into it." Defendant said he could not sleep and told his father that something was wrong with him.
DEFENSE EVIDENCE AT GUILT PHASE
J.T. was Minor's stepfather and defendant's brother. He testified for the prosecution but was also recalled as a defense witness. He testified that defendant moved into his house shortly after their mother died. J.T. testified defendant was depressed and was in a bad mood. Defendant told J.T. that he was hearing voices. J.T. never told anyone about defendant's problems. J.T. had never known defendant to show interest in underage girls.
Sergeant Zamudio, one of the investigating officers, testified that he was present during an interview with Minor. Minor said that defendant grabbed her shirt and shorts, he quickly pulled them, and he pulled up her shirt.
DEFENDANT'S TESTIMONY AT THE GUILT PHASE TRIAL
Defendant testified he was 36 years old at the time of the incident. He further testified that he did not pull Minor's shorts down; he only lifted her shirt.
Defendant testified he lifted Minor's shirt because she "was pregnant. And people don't know that, you know. They're trying to say she wasn't pregnant, but she was pregnant."
"I had to know. Because Q was telling me, the Ouija board was telling me that she was pregnant. And the family members were always constantly telling me that she was pregnant, you know. Insinuating with even a baby doll with blue eyes, because - just because I have blue eyes. And it was consistently insinuating that she was pregnant. And I wanted to know."
Defendant testified that he touched Minor's stomach, and he could tell she was pregnant. Defendant wanted to know the truth whether she was pregnant.
"[Defense counsel]: What did—what would have happened if she was pregnant?
"A. I don't want to pay child support that's not mine. They were trying to insinuate that that was mine. That was from the demon. Even Q was telling me ...."
Defendant was unemployed and "they" were trying to insinuate that it was his baby. "I'm not going to take a baby I can't afford."
"Q. Was it your baby?
"A. No. It was a demon baby."
Defendant testified that when he touched Minor, he did not have any sexual interest or intent for sexual arousal. Cross-examination at guilt phase
On cross-examination, defendant admitted that he knew Minor was 11 years old at the time. He also admitted that she followed him into the garage.
Defendant again testified he only wanted to know if Minor was pregnant, and he would know someone was pregnant if she had a "baby bump."
"[The prosecutor]: Did you have a pregnancy test in the garage with you?
"A. It doesn't matter. I felt it. And you know it."
Defendant admitted that he turned on the air compressor when they went into the garage.
"It was loud, but not too loud. But it was just to cover her saying, you know, 'No,' because I touched her stomach. I knew she was gonna yell." (Italics added.)Defendant knew it was wrong to touch her.
"Q. And that's because touching an eleven year old girl is wrong, right?
"A. Yeah, I know it's wrong. But Q was telling me and you don't know that. See that's the thing. You're making this story up with these games. You don't play with a Ouija board. I tell you that right now. I beg of you guys. No matter what you guys judge me, don't play the Ouija board. I swear, don't play because the demons are in it. She was pregnant. The
demons kept telling me she was pregnant. And the mom would say - she was insinuated she was pregnant. But please don't play the Ouija board, I swear. Tell your family. I swear, doesn't matter, you guys judge me. But don't play the Ouija board. Okay." (Italics added.)
Defendant testified that Minor "put" herself by the mechanical chair, and he did not put her there. Defendant lifted her shirt and touched her stomach, and he could tell that there was a baby there.
Defendant did not explain Minor's trial testimony about grabbing her arm, pulling her out of the motorized wheelchair, turning her around, pushing her elbows down, and forcing her arms on the chair as he stood behind her.
Defendant admitted he touched Minor. She looked shocked that he lifted her shirt and touched her stomach. She was also shocked "because she found out right there she was pregnant herself." Defendant denied that he said "please" to her or that she fell, but admitted that she ran away from him.
As defendant continued to testify, he asked what they did to the baby.
Defendant testified that J.T. confronted him. Defendant testified that when he spoke to J.T., he did not deny that he touched her and said that he touched Minor's stomach. J.T. told defendant to leave the house.
J.T. testified that when he confronted defendant, he said that he did not do anything.
Defendant acknowledged that when he spoke to his father from jail, he referred to an Ouija board.
Defendant also acknowledged that during his telephone conversation with J.S., defendant described his own actions as "shameful." "And I still admit it; it's shameful. But I wanted to know, and I found out the truth. The truth will set you free." Guilt phase trial and verdict
Defendant was charged with one count of the attempted forcible commission of a lewd and lascivious act on Minor, a child under the age of 14 years (§§ 664/288, subd. (b)(1)). Defendant pleaded not guilty, and not guilty by reason of insanity. The court appointed experts to examine defendant, and the sanity trial was bifurcated.
Defendant's jury trial in the guilt phase began on October 20, 2015. On November 3, 2015, defendant was found guilty of the charged offense and remanded into custody.
PART II
SANITY PHASE EVIDENCE
After defendant was found guilty of the substantive offense, the sanity phase of the trial was held before the same jury. After a two-day trial, the jury advised the court that it was deadlocked, and the court declared a mistrial.
A second sanity trial was held before a new jury. The defense called two experts who had been appointed to examine defendant: Dr. Michael D. Zimmerman and Dr. Robert Taylor. Dr. Zimmerman
As noted above, at the bifurcated sanity phase, "the defendant has the burden to prove 'by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.' [Citations.] Our Supreme Court has interpreted this statutory language to mean that insanity can be shown under either the 'nature and quality' prong or the 'right from wrong' prong of the test. [Citation.] The court has also held that 'a defendant who is incapable of understanding that his act is morally wrong is not criminally liable merely because he knows the act is unlawful.' [Citation.]" (McCarrick, supra, 6 Cal.App.5th at p. 246.)
Dr. Zimmerman, a psychologist, was appointed by the court to examine defendant in November 2012 to prepare a report for the defense about the viability of an insanity defense. He was again appointed in December 2014 to examine defendant and assess his mental state at the time of the offense for purposes of the sanity trial.
Dr. Zimmerman testified defendant was legally insane when he committed the offense. Defendant was "mentally ill at the time of the crime. And his mental illness rendered him incapable of understanding the nature of his actions." Defendant suffered from delusions and hallucinations, and, as a result of his mental illness, he could not differentiate between right and wrong.
Dr. Zimmerman diagnosed defendant with schizophrenia during the 2014 examination. He believed defendant had schizophrenic syndrome at the time of the crime.
Dr. Zimmerman reviewed the police reports about the case, including a report about defendant's telephone calls from the jail immediately after he was arrested. He did not listen to the recordings of the jail calls. Defendant's relative calmness during those calls did not affect his opinion about defendant's mental health status. Dr. Zimmerman testified that while defendant said that he knew he could get in trouble for what he did, those statements did not show that he could differentiate between right and wrong.
Dr. Zimmerman testified that during the 2012 and 2014 interviews, he asked defendant what he believed at the time of the incident. In both interviews, defendant said he believed there was "a devil child" inside the victim. Defendant said he had "this belief that he was about to spawn the devil child. He felt he needed to take dramatic action, not just to save his own life right now, but his eternal life."
Dr. Zimmerman compared defendant to someone who believed in the need to take dramatic action in self-defense: "He believed that his eternal life depended on finding out if his 11-year-old niece was really pregnant with his child, as he was getting messages over the internet and sent to him from ... his sister-in-law."
Defendant believed there was a life and death situation at that moment and did something that "he knew would be wrong under most circumstances, pulling a girl's ... shirt up. But his belief was his eternal life depended on finding out where he stood with this thing." He could not have ignored his feelings because "he fully believed that these things were going on and ramping up, speeding up, and about to come to a dreadful conclusion. He could not ignore that."
As we will discuss below, Dr. Zimmerman appeared to accept defendant's explanation that he only lifted Minor's shirt and did not confront defendant with Minor's more detailed account of the incident in the garage.
Defendant felt he had to conceal his actions because his family was "in on this," and he did not want them to stop him "from finding out that he was about to look into this." Defendant knew it would "generally be considered wrong to pull up [Minor's] blouse. But under those circumstances, he had to take those steps. That was his belief at the time. That was part of his delusional psychosis."
Defendant believed his sister-in-law and brothers were conspiring against him, and they had bugged his room and phone. He believed his brothers were sending persecutory messages to him through a website. Defendant believed there was a "devil baby" inside Minor.
Dr. Zimmerman testified that if these things were not true but "he truly believes it, then he is truly delusional, then he is truly psychotic," and that showed he had a mental disorder that rendered him incapable of knowing reality.
Based on his two interviews with defendant, Dr. Zimmerman believed defendant did not suddenly suffer from delusions at the time of the incident, but there had been some indication of prior problems. During the 2012 interview, defendant reported a history of suicidal thoughts and said it happened the prior year. During the 2014 interview, defendant again reported having suicidal thoughts, and said a doctor had once considered prescribing Zoloft for him.
Dr. Zimmerman acknowledged that when defendant was booked into jail in this case, he said he was not suicidal. Zimmerman testified defendant's booking statement was consistent with defendant's account of the incident, since defendant did not claim to be suicidal at the time of the offense or the mental health evaluations.
Dr. Zimmerman testified that he considered whether defendant was faking or malingering. He believed defendant's calm demeanor was not indicative of malingering but consistent with masking his psychosis. Someone with true psychosis will try to hide, deny, or minimize the condition. If someone was malingering, that person would be more likely to "parade" it and make sure to accentuate his symptoms.
Dr. Zimmerman also believed defendant was not malingering based on the details he provided about his thoughts. Defendant talked "in detail about Ouija boards that were opening a door to another world," "a blue-eyed doll that was sending him messages," and "codes that were being sent to him on the internet ...."
Dr. Zimmerman was very confident about his opinion in this case and described it as "one of the most straightforward, most consistent" evaluations he had done. He had previously testified for both the prosecution and defense in other cases and concluded that the subjects were sane in most of his other cases.
Cross-examination
Dr. Zimmerman testified his diagnosis was based on defendant's statements during the two interviews in 2012 and 2014, and the police reports about Minor's accusations against defendant. He did not ask to see or watch the videotape of a forensic interview with Minor. He did not conduct any follow-up interviews with J.T. about his observations of defendant. He did not check the accuracy of defendant's statements about his own history.
Dr. Zimmerman conceded that he did not ask defendant for a more precise time frame about when he had suicidal thoughts. He did not investigate defendant's medical or mental health history or contact any of defendant's doctors about his suicidal thoughts or whether treatment had been suggested, to confirm defendant's claim that a doctor had recommended medication. Dr. Zimmerman conceded defendant made inconsistent statements about his suicidal thoughts because he told officers at the jail that he did not have suicidal thoughts when he was booked in March 2012.
Dr. Zimmerman did not asked defendant to explain J.T.'s statement to the police, that he confronted defendant about touching Minor, and defendant denied doing anything and said she was lying.
Dr. Zimmerman acknowledged that defendant was never quoted in any of the police reports, including the reports about the jail calls, that he was trying to find out if Minor was pregnant. Dr. Zimmerman conceded defendant later told J.T. that he touched her hips. While defendant previously made statements about his delusions, he did not say anything about Minor's purported pregnancy until his first interview with Dr. Zimmerman.
Dr. Zimmerman agreed that defendant had a "goal and he thought and went and did it," when he told Minor to go into the garage, turned on the air compressor, and turned her around and against the wheelchair. However, defendant's actions still did not indicate that he was sane at the time because he thought "he was checking to see if she was carrying his devil child. That was his goal, to find out if that was true."
Dr. Zimmerman also agreed that during the jail call with his friend, defendant said that his acts were shameful. However, his statements did not mean he knew right from wrong, only that he was ashamed of what he felt he had to do. Dr. Taylor
Dr. Taylor, a board certified clinical psychologist, examined defendant for approximately once in March 2015, three years after the offense. He reviewed the police reports as the background for the examination.
Dr. Taylor testified defendant was legally insane at the time of the offense, and he was "very confident" about his opinion. Defendant had a mental disease and suffered from paranoid and persecutory delusions at the time of the offense. Defendant was capable of understanding the nature and quality of his act, but he was unable to differentiate between right from wrong.
Defendant had a longstanding history of depression and paranoia, and these conditions were exacerbated in the three or four months prior to the incident. He became more depressed and delusional, and suffered auditory hallucinations. At the time of the 2015 examination, defendant continued to suffer from depression and paranoid and persecutory delusions.
Dr. Taylor administered a standardized test, the Miller Forensic Assessment Symptoms Test (M-FAST), to determine if defendant was malingering. Defendant's responses were on the "borderline" of "what may or may not indicate feigning or malingering of symptoms." The test results may have occurred because defendant was "reporting symptoms that aren't normally reported ... by individuals with genuine psychiatric disorders, and rare combinations of symptoms." The "[r]are combination of symptoms" could be associated with feigning.
Because of the results on the M-FAST test, Dr. Taylor administered a second standardized test, the Structured Inventory of Reported Symptoms-2 Test (SIRS-2), that had four possible results: feigning, indeterminate-evaluate, indeterminate-general, and genuine responding. Defendant was classified in the indeterminate-general category, which meant the test "didn't quite know what to do with him. There's no evidence that he's making ... any kind of systematic effort to feign or malinger. Sometimes individuals in this case actually have more atypic[al] or different psychiatric sort of symptoms. It's rare that they're actually feigned."
Dr. Taylor did not detect any indication of a systematic attempt to feign, amplify, or exaggerate mental illness symptoms to evade criminal responsibility. Defendant had a forthright manner, his description of symptoms was consistent with such psychotic disorders without exaggerating or amplifying them, and he did not claim symptoms that were unlikely in people with psychotic depression.
Dr. Taylor testified that defendant said he touched Minor to find out if she was pregnant because of his delusions. Defendant said the Ouija board opened a portal for a demon called "Q" to talk to him, the demon told him that Minor was pregnant, there was a "devil baby" in her, and defendant's family said he was the father. Defendant said his family was hacking into his cell phone and tracking him with a GPS device. Defendant also said the family gave him "blue-eyed dolls" to indicate that he was the father of the baby, and he believed it was his baby.
Dr. Taylor accepted defendant's statements about what he thought and perceived during the offense, and believed defendant was credible about those thoughts because Dr. Taylor determined defendant was being forthright during their interview, even though the interview occurred three years after the offense.
Dr. Taylor acknowledged defendant never mentioned a pregnancy or a "demon" baby to the police or his family at the time of the incident in 2012. Dr. Taylor did not discuss this inconsistency with defendant, and it did not change his opinion because "my attempts to elicit from him what his mental condition was at the time, I'm asking him pointed questions about what he was thinking, what he was feeling and what was going on."
Dr. Taylor was aware that defendant might have planned some aspects of the incident by turning on the air compressor in the garage to make noise before he touched Minor. Such planning did not change Dr. Taylor's opinion about defendant's condition.
Dr. Taylor had reviewed the transcripts of defendant's tape-recorded telephone calls from jail, where defendant said he knew he did something wrong. Defendant's statements did not change his opinion or indicate defendant was malingering, because defendant knew that touching Minor "would likely get him in trouble" and upset his brother.
Dr. Taylor testified his opinion would not change even though defendant denied that he had ever attempted suicide when he was booked into jail. In contrast, he told Dr. Taylor that he had been suicidal in the past. Defendant may have been more guarded about his mental health condition when he was questioned at the jail and booked.
Cross-examination
Dr. Taylor testified he reached his conclusions about defendant's condition based on defendant's statements during his 2015 examination and his review of the police reports.
Defendant said a prior doctor indicated he should possibly be on medication. However, Dr. Taylor did not follow up on defendant's statement, and he did not ask for or review any of defendant's medical records.
Dr. Taylor did not watch the video of Minor's interview with the police or listen to the recordings of defendant's calls from jail. He relied on statements attributed to J.T. about defendant's condition that were in the police reports, but he did not contact or speak with anyone in defendant's family to follow up on defendant's statements about how he was acting before the offense.
Dr. Taylor acknowledged he did not confront defendant with the statements he made when he was booked, and he denied having suicidal ideations. Dr. Taylor testified defendant's subsequent statements, that he had attempted suicide, were not inconsistent for a person who was suffering from a severe mental illness. It was more likely for someone with mental health problems to disclose suicidal thoughts to a doctor in a private setting.
Dr. Taylor testified that in the police reports, defendant said he only touched Minor's hip, but defendant told Dr. Taylor that he touched her stomach. Dr. Taylor did not ask defendant about this inconsistency. Dr. Taylor did not consider it an important difference in determining his mental state, and believed defendant was being forthright based on the interview and the testing data.
Dr. Taylor was aware that sometime after the offense, J.T. confronted defendant about touching Minor, and defendant told his father and J.T. that he did not know why he did it. Defendant did not say anything about a pregnancy until he was interviewed by the mental health experts in this case. Dr. Taylor did not confront defendant about this inconsistency because he had "plenty of other data" that indicated defendant was being forthright and genuine in his responses. Even though defendant was delusional, he knew that he was going to get in trouble for touching Minor, but "I didn't see that as feigning. It makes sense that he would be more guarded at that point and trying to avoid getting in trouble" when he talked to his family immediately after the incident.
Dr. Taylor conceded defendant had a specific intention in mind when he asked Minor to go into the garage with him, and he knew that what he was going to do would likely get him in trouble. Defendant knew that act was legally wrong, and he might be criminally charged for touching Minor's stomach. He told Dr. Taylor that he wanted to talk to a priest to confess about using the Ouija board and opening the portal to the demonic realm.
Dr. Taylor testified that defendant did not know his act was morally wrong because "he was suffering from a delusion at the time that the young girl was impregnated by a demon," and he was wrestling with issues of good and evil that he because of this delusion. The People's sanity phase evidence
Devon Medina, the custodian of the jail's nursing records, testified that inmates are routinely asked about their physical and mental health conditions when they are booked into custody. If an inmate reported mental health problems or suicidal ideations, additional questions would be asked and noted in the records, and the inmate would go through psychiatric interviews.
Medina did not interview defendant when he was booked in March 2012. She reviewed his records and testified that defendant denied having any mental health history or suicidal gestures/ideations. Defendant was not referred for additional intake interviews, which meant that he did not have any mental health history to document.
Officer Ryan Hall, a correctional officer at the jail, conducted the intake interview and medical screening report when defendant was booked at the jail in March 2012. Hall reviewed defendant's records and testified he did not display any behavioral or mental health problems, try to harm himself, or express suicidal ideations.
The recordings of the two calls that defendant made from jail shortly after his arrest were played for the jury.
As explained above, the jury that heard the guilt phase evidence also heard the first sanity trial but was deadlocked, and a mistrial was declared. A new jury was impaneled to hear the second sanity trial, and the People introduced the same evidence from the guilt phase.
Minor's testimony
Minor testified about the incident, consistent with her prior testimony at the guilt phase - that defendant asked her to go into the garage with him; he turned on the air compressor; he asked her to help him move the electric wheelchair; she sat down in it; he grabbed her arms and turned her around; he told her to put her hands on the chair's armrests; he was behind her; he tried to pull down her shorts and lowered them a little bit; she said no and pulled up her shorts; she tripped and fell; and defendant was on his knees and said "please" to her.
Minor did not know if defendant had a mental illness and testified that defendant was not "crazy," and he knew what he was doing that day. "If he is crazy, you can tell. He knew what he was doing. He knew that he was going to hurt me. That's not something you -you know when you're hurting a person."
J .T.'s testimony
J.T., defendant's brother, testified that defendant said he had been depressed since their mother died in 2007. Defendant appeared to function a daily basis. About six to eight months before the incident with Minor, defendant called J.T. and said he was depressed and almost hung himself, but their brother, A.T., found him. Defendant also told J.T. that he tried to commit suicide on a prior occasion but never had the courage. J.T. never saw defendant try to kill himself.
J.T. testified defendant was laid off from his job delivering car parts about two or three months before the incident with Minor. He spent most of the day watching television at their house.
About a month before he committed the offense against Minor, defendant accused J.T.'s wife, L.T., of hacking into his computer and phone and doing things to him. J.T. got mad at defendant and said he could not accuse people without proof. Defendant later called J.T. to "make peace" about the incident. Defendant told J.T. that "the Ouija board pretty much told him that [L.T.] was doing all kinds of stuff to him." J.T. told defendant that was stupid and to snap out of it and get back into reality. They met to talk about the situation and defendant apologized. Defendant also said he was hearing voices and seeing black shadows. J.T. told defendant to go to church and throw away the Ouija board. J.T. saw defendant throw away the board in an alley trash can.
J.T. testified that in the month between defendant throwing away the Ouija board and committing the offense against Minor, defendant kept more to himself and became aggravated about L.T. Defendant's behavior was otherwise normal.
J.T. testified that L.T. was pregnant at that time of the offense. Defendant told J.T. that L.T.'s baby was not J.T.'s child, L.T. was setting up J.T., and the Ouija board told him that Minor was pregnant. Defendant said the Ouija board told him that J.T.'s wife was "setting him up" and "[defendant] was going to jail." J.T. told defendant to get out of that stupidity and nonsense.
J.T. said that on the morning of the offense, Minor came into their bedroom and told him what happened. J.T. ran out of the bedroom and immediately confronted defendant about trying to touch her. J.T. asked defendant, " 'What did you to do her?' " Defendant replied, " 'I didn't do nothing.' " J.T. told defendant that Minor " 'wouldn't lie for something like that,' " and again asked what he had done. Defendant said, " 'No, she's lying,' " and that L.T. was setting him up. J.T. testified defendant was "just a little angry ... and shocked and depressed," and "had a lot of emotions with him." J.T. kicked defendant out of the house and defendant left.
Later that day, J.T. met defendant and D.T. J.T. asked defendant, " 'Why did you do it?' " Defendant said that he "held on to [Minor's] waist." Defendant was crying and said "he was sorry, what he did. He hasn't slept for many a days. He didn't know why he did it." Sanity phase verdict
On December 3, 2015, the jury found defendant was legally sane at the time of the offense. Sentencing
On May 27, 2016, the court heard and denied defendant's motion for new trial on the substantive offense.
In part III, post, we will address defendant's contentions about the court's denial of his motion for new trial.
The court placed defendant on probation for five years subject to certain terms and conditions, including serving 270 days in jail. The court also issued a criminal protective order for defendant to stay away from Minor and her mother.
In parts IV through VIII, post, we will address defendant's challenges to certain probation conditions.
DISCUSSION
I. Substantial Evidence of Attempted Forcible Commission of a Lewd Act
Defendant contends his conviction for the attempted forcible commission of a lewd and lascivious act on Minor (§§ 664/288, subd. (b)(1)) was obtained in violation of his federal and state constitutional rights to due process, because there is insufficient evidence that he acted with lewd intent. Defendant points to Minor's initial statement to the police, that he lifted her shirt, as being consistent with his subsequent trial testimony that he just touched her to find out if she was pregnant. Defendant argues the evidence at the guilt phase instead showed that he touched her as a result of some type of mental illness and not because of any sexual or lewd intent.
A. Substantial Evidence
"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ' "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" ' [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
"In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.)
B. Attempt
" 'An attempt to commit a crime consists of a specific intent to commit the crime, and a direct but ineffectual act done towards its commission. [Citations.] Commission of an element of the underlying crime other than formation of intent to do it is not necessary. [Citation.] Although mere preparation such as planning or mere intention to commit a crime is insufficient to constitute an attempt, acts which indicate a certain, unambiguous intent to commit that specific crime, and, in themselves, are an immediate step in the present execution of the criminal design will be sufficient. [Citations.]' [Citation.]" (People v. Jones (1999) 75 Cal.App.4th 616, 627, fn. omitted.)
" '... When it is established that the defendant intended to commit a specific crime and that in carrying out this intention he committed an act that caused harm or sufficient danger of harm, it is immaterial that for some collateral reason he could not complete the intended crime.' [Citation.] When a defendant acts with the requisite specific intent, that is, with the intent to engage in the conduct and/or bring about the consequences proscribed by the attempted crime [citation], and performs an act that 'go[es] beyond mere preparation ... and ... show[s] that the perpetrator is putting his or her plan into action' [citation], the defendant may be convicted of criminal attempt." (People v. Toledo (2001) 26 Cal.4th 221, 229-230.)
C. Section 288
Defendant was charged and conviction of an attempted violation of section 288, subdivision (b)(1). Section 288 states in relevant part:
"(a) [A]ny person who willfully and lewdly commits any lewd or lascivious act ... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.
"(b)(1) Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years."
"To sustain a conviction of attempted violation of section 288(a), the prosecution has the burden of demonstrating (1) the defendant intended to commit a lewd and lascivious act with a child under 14 years of age, and (2) the defendant took a direct but ineffectual step toward committing a lewd and lascivious act with a child under 14 years of age. [Citations.] The requisite intent for section 288(a), may be proven by circumstantial evidence. [Citation.]" (People v. Singh (2011) 198 Cal.App.4th 364, 368, italics added; People v. Villagran (2016) 5 Cal.App.5th 880, 890.)
"Section 288's defining characteristic is 'the defendant's intent to sexually exploit a child, not the nature of the offending act.' [Citation.] Accordingly, '[a]ny touching of a child under the age of 14 violates [section 288, subdivision (a)], even if the touching is outwardly innocuous and inoffensive, if it is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the victim.' [Citations.] Where ... the defendant's physical conduct might be consistent with a nonsexual purpose, the jury can look to surrounding circumstances and rely on them to draw inferences about his intent. [Citations.]" (People v. Valenti (2016) 243 Cal.App.4th 1140, 1160.)
"Because intent for purposes of ... section 288 can seldom be proven by direct evidence, it may be inferred from the circumstances. [Citation.]" (In re Mariah T. (2008) 159 Cal.App.4th 428, 440.)
"[T]he circumstances of the touching remain highly relevant to a section 288 violation. The trier of fact must find a union of act and sexual intent [citation], and such intent must be inferred from all the circumstances beyond a reasonable doubt. A touching which might appear sexual in context because of the identity of the perpetrator, the nature of the touching, or the absence of an innocent explanation, is more likely to produce a finding that the act was indeed committed for a sexual purpose and constituted a violation of the statute. On the other hand, if the trier of fact is persuaded beyond a reasonable doubt, from all the circumstances, that the touching of a child was sexually motivated, nothing in the language, history, or purpose of section 288 indicates that the touching should escape punishment simply because it might not be considered a means of sexual gratification by members of the mainstream population." (People v. Martinez (1995) 11 Cal.4th 434, 452, italics in original.)
" '[T]he trier of fact looks to all the circumstances, including the charged act, to determine whether it was performed with the required specific intent.' [Citations.] Other relevant factors can include the defendant's extrajudicial statements [citation], other acts of lewd conduct admitted or charged in the case [citations], the relationship of the parties [citation], and any coercion, bribery, or deceit used to obtain the victim's cooperation or to avoid detection [citation]." (People v. Martinez, supra, 11 Cal.4th at p. 445.)
D. Analysis
The jury at the guilt phase was presented with two conflicting versions of what happened in the garage. Minor testified defendant asked her to help him with something in the garage, he turned on the air compressor that made a loud noise, and he told her to put her hands on the wheelchair's seat. When she sat down in the chair, defendant told her to get up. Before she could get up, defendant grabbed her arm, made her stand up, turned her around, and forced her arms down on the chair's arm rests. He held onto her body and managed to pull down her shorts and underwear a few inches. Minor told him to stop and defendant told her not to worry about it. When she tried to get away, she fell and realized he was on his knees, and he appeared to beg her to do something. J.T. confronted defendant immediately after the incident, and defendant denied the entire incident.
When defendant testified at the guilt phase, he admitted that he turned on the air compressor when they went into the garage, and it was loud enough to cover Minor's voice because he knew she was going to yell. He insisted that he did not try to pull down her shorts and did not touch her with any sexual intent. Defendant testified he only lifted her shirt and touched her stomach because he had to find out if she was pregnant, based on what he was being told by using a Ouija board. Defendant also testified that Minor "put" herself by the mechanical chair, and he did not put her there.
As noted above, the testimony of a single witness may be sufficient to support a conviction unless that testimony is physically impossible or inherently improbable. (People v. Young, supra, 34 Cal.4th 1149, 1181.) Minor described a situation where defendant lured her into the garage, away from the house, and while her parents were still in bed. He turned on the compressor to prevent her voice from being heard. He used force to move and turn her around into a specific position, so he could stand behind her as he lowered her shorts and underwear.
Defendant makes much of Minor's statement to the officer that defendant lifted up her shirt, to corroborate his trial testimony that he only touched her stomach because he needed to find out whether she was pregnant. However, Minor testified he held onto her body as he started to lower her clothing. While defendant may have moved her shirt as he held onto her, Minor consistently testified that he forced her to turn around, stood behind her, and began to lower her shorts and underwear before she broke free. Defendant never accounted for Minor's details about how he forcibly moved her out of the motorized wheelchair so that he was standing behind her.
Based on the nature and circumstances of defendant's actions, the jury could have drawn the reasonable inference that defendant touched Minor with the requisite intent to commit a lewd and lascivious act upon her body to support his attempt conviction. While the jury could have accepted defendant's claim that he did not have such an intent, it was also free to reject that contention in light of Minor's detailed description about his conduct and defendant's completely different version of the incident. There is substantial evidence based on Minor's trial testimony supporting defendant's conviction for the attempted commission of a lewd and lascivious act upon Minor with force. (See, e.g., People v. Singh, supra, 198 Cal.App.4th at p. 369.)
II. The Jury's Finding that Defendant was Sane
Defendant next contends the jury's finding that defendant was sane must be reversed because it is not supported by any evidence. Defendant asserts it was unreasonable for the jury to reject the findings of the two experts because they testified without contradiction that defendant was not sane at the time of the offense. Defendant points out that the People did not introduce any contrary expert testimony, but instead sought to undermine the experts through cross-examination and lay witnesses. Defendant contends the People's evidence insufficient to contradict the experts, there was no substantial evidence of malingering, and it was unreasonable for the jury to reject the experts' opinions.
A. The Sanity Phase
"The test of legal insanity in California is the rule in M'Naghten's Case (1843) 10 Clark & Fin. 200, 210 [8 Eng.Rep. 718, 722], as adopted by the electorate in June 1982 with the passage of Proposition 8. That measure added section 25, subdivision (b), which provides: 'In any criminal proceeding ... in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.' Despite the use of the conjunctive 'and' instead of M'Naghten's disjunctive 'or,' this court has interpreted the statute as recognizing two distinct and independent bases on which a verdict of not guilty by reason of insanity might be returned. [Citations.]" (People v. Lawley (2002) 27 Cal.4th 102, 169-170.)
"Our Supreme Court has interpreted this statutory language to mean that insanity can be shown under either the 'nature and quality' prong or the 'right from wrong' prong of the test. [Citation.]" (McCarrick, supra, 6 Cal.App.5th at p. 246.) Thus, "insanity is established if the defendant was incapable of knowing or understanding the nature and quality of the criminal act, or of distinguishing right from wrong. [Citations.]" (People v. Mills (2012) 55 Cal.4th 663, 671; People v. Elmore (2014) 59 Cal.4th 121, 140.)
"The court has also held that 'a defendant who is incapable of understanding that his act is morally wrong is not criminally liable merely because he knows the act is unlawful.' [Citation.]" (McCarrick, supra, 6 Cal.App.5th at p. 246.)
" 'The incapacity must be based on a mental disease or defect even though that requirement is not specifically mentioned in ... section 25, subd[ivision] (b).' [Citation.]" (People v. Severance (2006) 138 Cal.App.4th 305, 321-322; People v. Blakely (2014) 230 Cal.App.4th 771, 774.) " 'If [a] mental illness is manifested in delusions which render the individual incapable either of knowing the nature and character of his act, or of understanding that it is wrong, he [or she] is legally insane under the California formulation of the M'Naghten test.' [Citation.]" (People v. Blakely, supra, at p. 780.) "Notably, a defendant may suffer from a diagnosable mental illness without being legally insane under the M'Naghten standard. [Citation.]" (People v. Mills, supra, 55 Cal.4th at p. 672.)
"Because the defendant has the burden of proof on the issue of insanity, 'the question on appeal is not so much the substantiality of the evidence favoring the jury's finding as whether the evidence contrary to that finding is of such weight and character that the jury could not reasonably reject it.' [Citations.]" (McCarrick, supra, 6 Cal.App.5th at pp. 247-248, italics added.)
On appeal, the People contend that the jury's finding of sanity is subject to review pursuant to the substantial evidence standard. Defendant contends that is "too deferential," and the jury's findings must instead be reviewed as set forth by the California Supreme Court in In re R.V. (2015) 61 Cal.4th 181 that cited People v. Drew (1978) 22 Cal.3d 333. While not addressing defendant's specific challenge, we have cited the standard set forth in McCarrick, which was based upon the language in Drew. (McCarrick, supra, 6 Cal.App.5th at pp. 246-247.)
"However, 'expert testimony, even if uncontradicted, is not binding on the trier of fact, and may be rejected, especially where experts are asked to speculate about a defendant's state of mind at the moment the crime was committed.... The trier of fact may consider the reasons given for expert opinions, and may weigh expert testimony with all of the evidence including the circumstances before, during, and after the offenses.' [Citation.] As our Supreme Court has stated, ' "However impressive [a] seeming unanimity of expert opinion may at first appear ... our inquiry on this just as on other factual issues is necessarily limited at the appellate level to a determination whether there is substantial evidence in the record to support the jury's verdict of sanity ... under the law of this state. [Citations.] It is only in the rare case when 'the evidence is uncontradicted and entirely to the effect that the accused is insane' [citation] that a unanimity of expert testimony could authorize upsetting a jury finding to the contrary." [Citation.] Indeed, we have frequently upheld on appeal verdicts which find a defendant to be sane in the face of contrary unanimous expert opinion. [Citations.]' [Citations.] The chief value of an expert's testimony ' "rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion." ' [Citation.]" (McCarrick, supra, 6 Cal.App.5th at p. 247, first italics added in original, subsequent italics in original.)
B. Analysis
Defendant asserts the jury's findings are not reasonable because two experts testified without contradiction that defendant was not legally sane when he committed the offense, and the People only presented lay testimony which was legally insufficient to refute the expert opinions. As we have explained, however, "[t]he chief value of an expert's testimony ' "rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion." ' [Citation.]" (McCarrick, supra, 6 Cal.App.5th at p. 247, italics in original.)
In this case, the jury heard the prosecutor's extensive cross-examination of both experts and other evidence that would have led the jury to question the reliability and basis for the experts' opinions, namely defendant's account of his mental health condition and his version of what happened in the garage. Both experts conceded that they did not ask defendant about any of his inconsistent statements, such as his failure to disclose his mental health problems or suicidal ideations when he was booked into jail, compared to his subsequent claim of suicide attempts. They accepted his statements about his mental health history and that a doctor had previously suggested medication, but they did not ask defendant to clarify when the suicide attempts occurred and did not ask for or obtain any of defendant's medical records.
The experts did not ask defendant about his statement to J.T., when he denied doing anything to Minor and accused her of lying, or his subsequent statement to J.T. that he just held her waist, his failure to tell J.T. or anyone in the family that he touched Minor to find out if she was pregnant, and his failure to give this reason when he spoke to his father and friend from jail just days after his arrest. The experts conceded that defendant did not say that he touched Minor to find out if she was pregnant until he spoke to them in preparation for this case.
J.T.'s testimony established that defendant was using a Ouija board and saying strange things, but he also explained that defendant was making accusations against L.T. and challenging the parentage of their child. While J.T. testified at the sanity phase that defendant thought Minor was pregnant, defendant never told J.T. that was reason he touched her or that he only touched her stomach. Instead, he told J.T. that he just held onto her waist, which was consistent with Minor's description of what happened, but also said he did not know why he did it.
Both experts testified that they accepted defendant's version of what happened in the garage but failed to explain why it was completely inconsistent with Minor's account. They never testified that his alleged delusions prevented him from being able to recount what happened, particularly since he admitted turning on the air compressor to make noise. The experts insisted defendant was being forthright and consistent in his statements about what he was thinking at the time, even though the standardized tests raised possible concerns about whether he was feigning or malingering.
Perhaps most importantly, the jury at the sanity phase heard Minor's testimony about what happened in the garage. Minor testified that defendant used force to turn her around and push her arms down on the wheelchair's armrests. He held her and started to pull down her pants. When she pushed away from him, she fell and discovered he was on his knees and appeared to beg her to do something. While defendant did not testify at the sanity phase, the experts accepted defendant's statements that he just lifted her shirt and touched her stomach, which was completely inconsistent with Minor's description of the incident. Indeed, Minor's testimony was corroborated by J.T., who testified that she ran into the bedroom and told him what happened, which led him to immediately confront defendant, and defendant claimed she was lying.
The defendant had the burden of proof at the sanity phase. The prosecutor's cross-examination of the experts, together with the testimony from Minor and J.T., was of sufficient weight and character that it was reasonable for the jury to reject the experts' opinions in this case and find that defendant did not satisfy his burden. (McCarrick, supra, 6 Cal.App.5th at pp. 247-248.)
III. Denial of Defendant's Motion for a New Sanity Trial
Defendant filed a motion for new trial to reverse his conviction on the substantive offense of attempted commission of a forcible lewd act. The court denied the motion.
Defendant asserts the court failed to "independently weigh the evidence" and act as a 13th juror when it denied his new trial motion, and the matter must be remanded for a new hearing on his motion.
A. Defendant's Motion
Defendant was represented by appointed counsel during both the guilt and sanity phase. After the sanity verdict, defendant substituted retained counsel to represent him.
Thereafter, defendant filed a motion for a new trial only as to the jury's verdict in the guilt phase, pursuant to section 1181, subdivisions (5) and (6), based on the following arguments.
(1) The court unduly restricted lay evidence of defendant's mental condition;
(2) The prosecutor committed prejudicial misconduct in closing argument by misstating facts and the law;
(3) The court's instructions shifted the burden of proof to the defense; and
(4) The jury's guilty verdict on the substantive offense was contrary to the law or evidence, and his conviction must be reduced to simple assault.
As to the last issue, defendant's motion asserted that the court had to independently weigh the evidence and act as the " '13th juror,' " and find the verdict was not supported by the evidence and his conviction must be reduced to the lesser offense.
B. The People's Opposition
On May 10, 2016, the People filed opposition and argued that J.T. testified at the guilt phase about his observations of defendant's conduct, the court properly limited other aspects of J.T.'s testimony that lacked foundation, the instructions were correct and did not misstate the People's burden of proof, the prosecutor did not commit misconduct and correctly quoted Minor's trial testimony, and the verdict was not contrary to the law.
C. The Parties' Arguments
Prior to the sentencing hearing, the court addressed defendant's motion for new trial. The court stated it had read defendant's motion and the opposition and invited argument.
Defense counsel argued the verdict should be modified and reduced to simple assault "given all the Court has seen" since "the Court has seen and heard" all the evidence, defendant's testimony, and the experts. Defense counsel asserted that the court "has the power to do justice in this matter," and the interests of justice supported modification of the verdict to the lesser offense.
D. The Court's Denial of the Motion
After hearing the parties' arguments, the court made lengthy findings and denied the new trial motion.
"I appreciate the comments by both the People and the defense in these matters and the attention they've given to the case. It's apparent from the filings by both parties that they've given this a good deal of thought and consideration. I've reviewed all of that information and case authority.
"With regard to the Court's ruling concerning evidence of specific intent, the Court specifically ruled that the defense has the right to, at least regarding specific intent, include information as to defendant's mental health at the time of trial.
"What was not permitted was to try the issue of sanity twice. Sanity - the sanity trial, we discussed that, and that was to be tried once [because of the mistrial], but the defense was allowed to deal with the specific intent issue, including the defendant's mental health and that was explored by the defense as they elected to do that.
"In particular, the defense was allowed to explore the acts of [defendant] and [J.T.'s] observations of those acts. And the defense Counsel stated that he just wanted [J.T.'s] observations, and he was permitted to pursue those observations.
"The defense currently takes the position that - and I think [defendant's trial counsel] argued it as well that 915 of CALCRIM is not appropriate. I still believe that that was appropriate. There's nothing to indicate that there was juror confusion in that regard.
"The instruction with regard to [CALCRIM No.] 3428 [on diminished actuality] was given as requested by the defense. I agree with the prosecution's position that the defense was permitted to go ahead and develop the facts that they had with regard to the mental health or circumstances of [defendant]. There were some objections to questions that I believe were properly ruled on in that regard that may have precluded a particular question, but the concept of exploring that was not prevented as a blanket ruling. Specifically, it was permitted.
"I do not find that the verdict was contrary to the law or the evidence. I think there was more than adequate facts basis for the jury's verdict in this matter. I find that the argument by prosecution in this matter was fair argument under the circumstances with regard to the information that was brought out by way of the facts during the course of the trial.
"So I'm going to deny the motion for new trial and motion for modified verdict ... I'm not finding that it should have been the lesser crime. The jury made its determination. I believe there is appropriate evidence to support the jury's determination, and I will not upset that determination at this point.
"Also, I do not believe that there was a burden shifting as argued by defense counsel in this matter. The instructions as given by the Court did not amount to burden shifting.
"So the motions for new trial and motion for modified verdict are denied...." (Italics added.)
E. Analysis
Defendant relies on the portion of the court's opinion, italicized above, and argues this language demonstrates that the court failed to independently weigh the evidence as required in evaluating a motion for new trial.
A trial court must grant a defendant a new trial when the verdict is contrary to the evidence. (§ 1181, subd. (6).) In ruling on a motion for new trial brought under section 1181, subdivision (6), the court "extends no evidentiary deference" and instead "independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a '13th juror.' [Citations.] If the court is not convinced that the charges have been proven beyond a reasonable doubt, it may rule that the jury's verdict is 'contrary to [the] ... evidence.' [Citations.] In doing so, the judge acts as a 13th juror who is a 'holdout' for acquittal." (Porter v. Superior Court (2009) 47 Cal.4th 125, 133, original italics.)
"An unsuccessful litigant is first entitled to a decision by the jury and then independently by the judge who must consider the sufficiency of the evidence, weigh the conflicts and inconsistencies and evaluate the credibility of witnesses. In making this determination the court must use its own judgment and cannot rely on the jury's conclusions. [Citation.]" (People v. Price (1992) 4 Cal.App.4th 1272, 1275 (Price).)
"Because of the trial court's unique position to perform these duties an appellate court will not set aside such rulings except where it clearly appears the trial court abused its broad discretion. [Citation.]" (Price, supra, 4 Cal.App.4th at p. 1275.)
In Price, supra, 4 Cal.App.4th 1272, the defendant was convicted of burglary primarily based on the testimony of a single witness and brought a motion for new trial. The trial court denied the motion and stated: " 'Okay. And, counsel, I did read and consider the points and authorities, and I didn't take it lightly, but I respectfully deny the request for a new trial. I think the evidence was sufficient, and I think that the jury - there was enough evidence there for the jury to do what the jury did ...[.]' " (Id. at p. 1275, italics added in original.)
Price rejected the defendant's argument that the court failed to independently weigh the evidence when it denied the new trial motion.
"The [trial] court first denied the request for new trial, and then said, 'I think the evidence was sufficient.' Only after making this statement did the court say 'there is enough evidence there for the jury to do what the jury did ...[.]' In other words the court's exercise of its independent judgment is reflected in its statement that the evidence was sufficient. The court's further comment there was substantial evidence to support the jury's determination is surplusage." (Price, supra, 4 Cal.App.4th at p. 1275.)Price acknowledged it would have been "preferable for the court to have been more specific," but the court's failure to do so "and its use of less than artful language cannot be equated with having applied the wrong standard." (Id. at p. 1276.)
In People v. Davis (1995) 10 Cal.4th 463, the defendant claimed the court relied on the wrong standard when it denied his motion for new trial. When the court denied defendant's motion, it addressed defendant's contentions about premeditation and deliberation and said: " 'The Jury did reach a result and the question is: Is the result that they reached supported by the circumstantial evidence and inferences that could be made or are those inferences also really not inferences and the Jury just speculated because they thought they didn't like the defendant, they thought it was a horrendous crime.' " (Id. at p. 523.) On other charges, the court stated that it felt there was sufficient evidence to support the verdicts and that it thought the jury finding was supported by the evidence. (Ibid.)
Davis rejected the defendant's argument that the quoted statements showed the trial court focused only on evidence sufficient to support the jury's verdict rather than on an independent review. (Davis, supra, 10 Cal.4th at p. 523.) Davis quoted the court's detailed discussion of the evidence and held the record showed the court "expressly articulated the correct standard of review" and clearly did not consider itself bound by any of the jury's findings. (Id. at p. 524)
In this case, defendant argues the court denied his new trial motion by deferring to the jury's evidentiary findings. The entirety of the findings show that the court stated it had reviewed "all of that information and case authority" in the parties' pleadings and made lengthy and specific findings as to each contention raised in defendant's motion. The court addressed defendant's evidentiary and instructional claims and then stated: "I do not find that the verdict was contrary to the law or the evidence."
It was only after that finding that the court made additional comments about the jury's verdict. As in Price and Davis, the court's language was not precise but the entirety of the record shows that applied the correct standard when it denied defendant's motion for new trial.
IV. Probation Conditions About Leaving his Reported Residence and the State
As explained above, the court placed defendant on probation subject to certain terms and conditions.
In his opening brief, defendant challenged the conditions that required him (1) to notify his probation officer before being away from his reported residence for more than 24 hours, and (2) to obtain advance written consent to leave the state. In response, the People asserted that these two appellate contentions were not properly before this court because they were not supported by any authority or argument.
In his reply brief, defendant concedes he mistakenly left these contentions in his opening brief and has withdrawn his appellate challenges to these two conditions.
V. Probation Condition to Participate in Sex Offender Counseling Program
In placing defendant on probation, the court ordered him to participate in an approved sex offender counseling program that incorporated the practices of the containment model, including polygraph examinations and waiver of the patient-psychotherapist privilege for confidentiality, pursuant to section 1203.067. Defendant objected to this condition and the court overruled the objection.
In his opening brief, defendant challenged certain aspects of this order, and argued the polygraph examination and waiver of the privilege were invalid and unconstitutional. Defendant acknowledged the issue was pending before the California Supreme Court.
As part of a sex offender's mandatory treatment, "[s]ection 1203.067, subdivision (b)(3) requires a convicted sex offender, as a condition of probation, to waive 'any privilege against self-incrimination' and to participate 'in polygraph examinations, which shall be part of the sex offender management program.' Section 1203.067, subdivision (b)(4) requires, again as a condition of probation, a waiver by the convicted sex offender of the 'psychotherapist-patient privilege to enable communication between the sex offender management professional and supervising probation officer, pursuant to Section 290.09.' " (People v. Garcia (2017) 2 Cal.5th 792, 798 (Garcia).)
As noted by the People (RB 22-23), the California Supreme Court in Garcia rejected the argument that "conditioning probation on the waiver of his privilege against self-incrimination, as well as on his participation in polygraph examinations, violates [a defendant's] Fifth Amendment rights. We conclude that the condition mandated by section 1203.067, subdivision (b)(3) directs defendant to answer fully and truthfully all questions posed to him as part of the sex offender management program. But because we deem his responses compelled within the meaning of the Fifth Amendment, they cannot lawfully be used against him in a criminal proceeding. [Citations.] Where, as here, the responses would therefore pose no risk of incrimination, neither the fact that he was compelled to respond nor the fact that his responses were being monitored by a polygraph offends the Fifth Amendment." (Garcia, supra, 2 Cal.5th at p. 798.)
Garcia also rejected the "defendant's claim that conditioning probation on the waiver of his psychotherapist-patient privilege violates his constitutional right to privacy and is overbroad under California law. It is neither overbroad nor violative of defendant's right to privacy to require a limited waiver of the psychotherapist-patient privilege for the purpose of enabling the treatment professional to consult with the probation officer and the polygraph examiner." (Garcia, supra, 2 Cal.5th at pp. 798-799.)
In his reply brief, defendant concedes that these issues have been resolved against him in Garcia.
VI. Probation Condition not to View or Possess Pornographic Materials
Defendant challenges several of the court's orders as unconstitutional. As another condition of probation, the court ordered defendant not to "view or possess pornographic materials."
Defendant contends this condition must be stricken because it is unconstitutionally vague and overbroad. Defendant argues it lacks a "scienter" requirement, that he cannot "knowingly" access such materials; and the term "pornographic materials" is vague and does not give defendant notice of what materials are prohibited.
A. Constitutional Challenges
"A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness. [Citation.] A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. [Citation.]" (In re Sheena K. (2007) 40 Cal.4th 875, 890.)
"The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights - bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153; People v. Pirali (2013) 217 Cal.App.4th 1341, 1346 (Pirali).)
As a preliminary matter, defendant acknowledges that defense counsel only objected to the court's order to attend the sexual offender program and did not object to the court's order about pornography and the other probation conditions that he has challenged on appeal. Defendant asserts that he has not waived his argument that each probation condition is unconstitutional on its face.
"[W]here a claim that a probation condition is facially overbroad and violates fundamental constitutional rights is based on undisputed facts, it may be treated as a pure question of law, which is not forfeited by failure to raise it in the trial court. [Citations.] The forfeiture doctrine does apply if the objection involves a discretionary sentencing choice or unreasonable probation conditions 'premised upon the facts and circumstances of the individual case.' [Citation.]" (People v. Stapleton (2017) 9 Cal.App.5th 989, 994.)
The People concede that defendant's failure to object has not waived his facial challenges to the constitutionality of the orders.
B. Pornography
In United States v. Guagliardo (9th Cir. 2002) 278 F.3d 868 (Guagliardo), the defendant challenged a term of supervised release that directed him not to possess " 'any pornography,' including legal adult pornography." (Id. at p. 872.) The court held that "a probationer cannot reasonably understand what is encompassed by a blanket prohibition on 'pornography' " because "[t]he term itself is entirely subjective; unlike 'obscenity,' for example, it lacks any recognized legal definition." (Ibid.) The court concluded that "[r]easonable minds can differ greatly about what is encompassed by 'pornography,' " and "remand[ed] for the district court to impose a condition with greater specificity." (Ibid.) Other circuit courts have also concluded that the term "pornography" is inherently vague. (E.g., Farrell v. Burke (2d Cir. 2006) 449 F.3d 470, 486; United States v. Loy (3d Cir. 2001) 237 F.3d 251, 265; but see United States v. Phipps (5th Cir. 2003) 319 F.3d 177, 192-193 [condition prohibiting possession of " 'sexually oriented or sexually stimulating materials' " was "somewhat vague" but sufficiently clear in light of other conditions to withstand constitutional challenge].)
In Pirali, supra, 217 Cal.App.4th 1341, the defendant was convicted of possessing child pornography, and was barred by the conditions of his probation from possessing or purchasing " 'any pornographic or sexually explicit material as defined by the probation officer.' " (Id. at p. 1344.) He challenged this condition on the grounds that it was vague and lacked specificity, and that without an express knowledge requirement he would not know what the condition forbade. (Id. at p. 1352.)
Pirali agreed and held that "a probation condition ' "must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated." ' [Citation.] Here, [the court found] the probation condition does not sufficiently provide defendant with advance knowledge of what is required of him. The fact that the probation officer may deem material sexually explicit or pornographic after defendant already possesses the material would produce a situation where defendant could violate his probation without adequate notice." (Pirali, supra, 217 Cal.App.5th at p. 1352.) Pirali modified the condition to state: " 'You're ordered not to purchase or possess any pornographic or sexually explicit material, having been informed by the probation officer that such items are pornographic or sexually explicit.' " (Id. at p. 1353.)
In People v. Connors (2016) 3 Cal.App.5th 729 (Connors), the defendant was convicted of sexual battery, placed on probation, and ordered to register as a sex offender. He had several probation violations. During one incident, his probation officer determined that he had been looking at materials on the Internet that depicted violent sexual assaults. The defendant was reinstated on probation and ordered not to possess " 'any sexually explicit materials for the purposes of arousing prurient interest ....' " (Id. at pp. 731, 733-734, 737.)
Connors held the condition was related to his future criminality since he had been convicted of a sexually violent offense. The defendant also argued the condition was unconstitutionally vague and overbroad, and lacked a knowledge requirement, and the People conceded the point. (Connors, supra, 3 Cal.App.5th at pp. 737-738.) Connors relied on Pirali and modified the condition to state that the defendant was not to possess " 'any sexually explicit materials that the probation officer identifies and informs you are sexually explicit for the purposes of arousing prurient interest.' " (Connors, supra, at p. 738.) "This modification will eliminate any vagueness and overbreadth concerns regarding the condition because it will limit it to only those specific items identified by the probation officer for defendant." (Ibid.)
In In re D.H. (2016) 4 Cal.App.5th 722 (D.H.), a juvenile was placed on probation after he admitted a misdemeanor count of indecent exposure. As a condition of probation, the court ordered him not to access pornography. (Id. at p. 724.) D.H. relied on Guagliardo and held the no-pornography order was vague. (Id. at p. 728.) In doing so, D.H. distinguished Pirali because it was only concerned "with the lack of notice created by leaving the prohibited category's definition to the probation officer. In our view, a modification requiring [the juvenile] to know or to be informed in advance that materials are 'pornography' fails to address the term's inherent vagueness." (In re D.H., supra, at pp. 728-729, original italics.)
"[T]he no-pornography condition is vague because the term 'pornography' itself is unclear. As a result, it cannot be made sufficiently precise by modifying it to prohibit accessing materials that the probationer knows are pornographic because the term itself is subjective and subject to different interpretations. Likewise, a condition prohibiting probationers from doing anything 'bad' could not be made sufficiently precise by modifying it to prohibit them from doing anything that they know is bad. Like the term 'pornography,' the term 'bad' is inherently vague.
"Rather than modifying the no-pornography condition ourselves, we direct the juvenile court to modify it to define more precisely the material the court intends to prohibit. We suggest that in doing so the court carefully consider what purpose this condition is intended to serve, as it is far from clear to us how restricting [the juvenile's] access to any materials that might be considered pornographic will help him avoid the behavior he exhibited in committing his offense or aid more generally in his rehabilitation. [The juvenile] has not challenged the condition on reasonableness or overbreadth grounds, however, and we therefore need not decide whether a blanket prohibition on access to all pornography could be properly imposed at all." (Id. at p. 729, original italics.)
C. Analysis
The People assert that a reasonable, objective person would understand the court's order not to view or possess "pornographic materials" to mean "conceptually, sexually oriented and explicit - and presumably not limited to visual, but also textual and audio, materials," but there could be "gray areas." However, the People concede "the term 'pornographic' is abstract and imprecise" and that defendant could find sexual stimulation in materials "that are not sexually oriented and explicit."
The People's argument effectively acknowledges the same concerns expressed in Guagliardo, Pirali, and D.H., and conceded in Connors, about the vagueness of the term "pornography." As in D.H., we will remand the matter for the court to craft a more precise definition of the materials that defendant is forbidden to view or possess.
VII. Probation Condition not to View or Access Social Websites
As another condition of probation, the court ordered defendant not to "view or access Internet social websites."
Defendant asserts this condition is unconstitutionally vague and overbroad, it impermissibly infringes on his First Amendment right to access the Internet, it also lacks a scienter requirement for him to "knowingly" access social websites, and it has no relation to the charge in this case.
The People concede that this condition apparently forbids access to all Internet social websites, and not simply certain websites. The People request the matter be remanded for the court to clarify this condition. At the time of briefing in this case, the People noted the validity of a similar order was pending before the United States Supreme Court.
In Packingham v. North Carolina (2017) 582 U.S. ___ (Packingham), the court held unconstitutional a state criminal statute making it a felony for registered sex offenders to gain access to social media websites minors are known to use. The criminal statute defined a "social networking Web site" to include four specific criteria. The website (1) "derives revenue from ... sources related to the operation of the Web site," (2) facilitates " 'social introduction' " or " 'information exchanges' " between two or more people, (3) allows " 'users to create ... personal profiles that contain information such as the name or nickname of the user,' " and (4) provides " 'users ... mechanisms to communicate with other users, such as a message board.' " (Id. at pp. 1740-1741, conc. opn. of Alito, J., original italics.)
Despite the specificity of the statute, Packingham held the statute had an unreasonably broad sweep. It not only barred access to social networking sites "like Facebook, LinkedIn, and Twitter" (Packingham, supra, 137 S.Ct. at p. 1737), but the statute's broad language would also bar access to websites like Amazon.com, Washingtonpost.com, and Webmd.com. (Id. at p. 1736.) According to Justice Alito's concurring opinion, "[p]lacing this set of websites categorically off limits from registered sex offenders prohibits them from receiving or engaging in speech that the First Amendment protects and does not appreciably advance the State's goal of protecting children from recidivist sex offenders." (Id. at p. 1743, conc. opn. of Alito, J.)
In this case, the precise scope of the court's condition is unclear. The court did not define, give illustrative examples, or state reasons for imposing the condition, which might have supplied a clue to the meaning of the term "social websites." It simply ordered defendant not to "view or access Internet social websites."
Based on the court's analysis in Packingham, we find this probation condition presents similar problems as the criminal statue in that case and would sweep far too broadly in the absence of a more precise definition. The condition as it stands is overbroad, and the matter must be remanded for the court to determine if it can construct a more precise order that will not run afoul of Packingham.
VIII. Probation Condition to Disclose all E-mail Addresses and Website Passwords
The court ordered defendant to "disclose all email addresses, passwords and membership websites," presumably to allow the probation officer to search his electronic devices.
Defendant contends this condition is unconstitutionally vague and overbroad, and it is not narrowly tailored to limit its impact on defendant's privacy and free speech.
The People assert this condition is constitutional, but concede it is "unclear" as to whether defendant must disclose "passwords to membership websites or just passwords to email addresses," and whether membership websites are "encompassed within internet social websites." The People assert that an order to disclose all such passwords would be constitutional, but suggest that on remand, the court should clarify both the social website order and this condition.
Both defendant and the People note that a similar issue concerning the validity of electronic search conditions is currently pending before the California Supreme Court.
There are several cases pending before the California Supreme Court regarding the reasonableness and constitutionality of electronic search conditions, and there is a split of authority in those cases regarding the validity of such conditions. (See, e.g., People v. Trujillo (2017) 15 Cal.App.5th 574, review granted Nov. 29, 2017, S244650; In re R.S. (2017) 11 Cal.App.5th 239, review granted July 26, 2017, S242387; People v. Bryant (2017) 10 Cal.App.5th 396, review granted June 28, 2017, S241937; People v. Nachbar (2016) 3 Cal.App.5th 1122, review granted Dec. 14, 2016, S238210; In re J.E. (2016) 1 Cal.App.5th 795, review granted Oct. 12, 2016, S236628; In re A.S. (2016) 245 Cal.App.4th 758, review granted May 25, 2016, S233932; In re Mark C. (2016) 244 Cal.App.4th 520, review granted Apr. 13, 2016, S232849; In re Alejandro R. (2015) 243 Cal.App.4th 556, review granted Mar. 9, 2016, S232240; In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923; In re Patrick F. (2015) 242 Cal.App.4th 104, review granted Feb. 17, 2016, S231428.)
A. Electronic Search Conditions
In Riley v. California (2014) 573 U.S. ___ (Riley), the court held that the search incident to arrest exception to the warrant requirement did not apply to searches of data on a cell phone seized from an arrestee. (Id. at p. 2485.) Riley explained the ordinary justifications for searches incident to arrest were to prevent harm to officers and destruction of evidence, but there were "no comparable risks when the search is of digital data." (Ibid.) "Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee's escape. Law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon - say, to determine whether there is a razor blade hidden between the phone and its case. Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one." (Ibid.)
Riley contrasted the government's interests with the heightened privacy interests that people have in their cell phone data. Riley compared cell phones to "minicomputers," and noted both the volume of sensitive data they contain and the pervasiveness of cell phone usage. (Riley, supra, 134 S.Ct. at p. 2489.) Cell phone data is "qualitatively different" from physical records and could include information like location data or Internet browsing history, that would "typically expose to the government far more than the most exhaustive search of a house ...." (Id. at pp. 2490-2491, original italics.)
"Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans 'the privacies of life,' [citation]. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple - get a warrant." (Id. at pp. 2494-2495.)
Riley reversed and remanded the case but emphasized that its holding was only that cell phone data is subject to Fourth Amendment protection, "not that the information on a cell phone is immune from search." (Riley, supra, 134 S.Ct. at p. 2493.) "[E]ven though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone," such as the exigent circumstances exception. (Ibid.)
In Carpenter v. United States (2018) 585 U.S. ___ (Carpenter), the police arrested four men who were suspecting of committing several robberies. One of the men provided the police with cell phone numbers for other accomplices. Based on this information, the FBI applied for and obtained court orders under the Stored Communications Act to obtain cell phone records for the suspected accomplices from wireless carriers, that showed location-related data obtained from their cell phones. The orders were issued under the statute and not pursuant to a search warrant. (Id. at pp. 2212-2213.)
Carpenter held the orders were invalid because the statute only required the government to show "reasonable grounds" to believe the records were relevant to an ongoing investigation. (Carpenter, supra, 138 S.Ct. at p. 2212) "[T]his Court has never held that the Government may subpoena third parties for records in which the suspect has a reasonable expectation of privacy." (Id. at p. 2221.) "If the choice to proceed by subpoena provided a categorical limitation on Fourth Amendment protection, no type of record would ever be protected by the warrant requirement." (Id. at p. 2222.) Carpenter rejected the government's arguments that the information was rendered less private because it was part of business records or because, by using the cell phone, the individual had technically disclosed the location information to the wireless carrier. Carpenter acknowledged its previous holding in Riley and the "unique nature of cell phone location records." (Carpenter, supra, at p. 2217.) Carpenter concluded "that the Government must generally obtain a warrant supported by probable cause before acquiring such records." (Id. at p. 2221.)
In People v. Appleton (2016) 245 Cal.App.4th 717 (Appleton), the defendant was charged with sex offenses committed on a minor that he met on social media. He later pleaded guilty to false imprisonment by means of deceit and was placed on probation. One of the probation conditions was for his electronic devices to be subject to " 'forensic analysis search for material prohibited by law....' " (Id. at p. 721.) Appleton held the search condition was valid under People v. Lent (1975) 15 Cal.3d 481 because it was reasonably related to his crime. However, it was unconstitutionally overbroad under Riley, supra, 134 S.Ct. 2473 because it allowed "for searches of vast amounts of personal information unrelated to defendant's criminal conduct or his potential future criminality," (Appleton, supra, at p. 727) such as his medical and financial records, "personal diaries, and intimate correspondence with family and friends." (Id. at p. 725.)
It appears that a petition for review was not filed in Appleton.
In United States v. Lara (9th Cir. 2016) 815 F.3d 605, 610, the court held a probation condition for search of " 'person and property, including any residence, premises, container or vehicle under [his] control' " did not include cell phone data.
In People v. Sandee (2017) 15 Cal.App.5th 294 (Sandee), the defendant was on probation and subject to a search condition for her property and personal effects. An officer stopped the defendant after she left a house that was under surveillance for drug activity. The officer confirmed the search condition, searched her cell phone, and found text messages that were possibly related to drug sales. (Id. at pp. 298-299.)
Sandee held that the defendant's suppression motion was properly denied, and the officer's search of the cell phone was valid under the probation search condition.
"[A]t the time the search was conducted a reasonable, objective person would understand it to encompass a search of [the defendant's] cell phone. In the probation search condition, [the defendant] agreed to submit her 'property' and 'personal effects' to search at any time. The probation search condition is worded very broadly and contains no language whatsoever that would limit the terms 'property' and 'personal effects' to exclude [the defendant's] cell phone or other electronic devices and the data stored on them. As a cell phone is indisputably the property of the person who possesses it and constitutes part of his or her personal effects, a reasonable person would understand the terms 'property' and 'personal effects' to include [the defendant's] cell phone and the data on it." (Sandee, supra, 15 Cal.App.5th at p. 302, fn. omitted.)
Sandee rejected the Ninth Circuit's holding in Lara, supra, 815 F.3d 605 because it "did not follow the approach normally employed by the California Supreme Court in assessing the validity of a search conducted pursuant to a probation search condition, under which the probationer is understood to have consented to all searches within the scope of the probation search condition, as interpreted on an objective basis. [Citation.]" (Sandee, supra, 15 Cal.5th at p. 302.) Sandee acknowledged Riley but concluded there was nothing in Riley to suggest that cell phones "should not be understood as a type of personal property" within the scope of a probation search. (Sandee, supra, at p. 302, fn. 5, original italics.)
B. Analysis
Neither Riley nor Carpenter address the constitutionality of search conditions imposed pursuant to probation or parole. The defendants in those cases had not been convicted of crimes at the time of the searches, and Riley acknowledged that there could be circumstances where a warrantless search of electronic devices would be valid. Neither Riley nor Carpenter are applicable to defendant's case.
"Warrantless searches are justified in the probation context because they aid in deterring further offenses by the probationer and in monitoring compliance with the terms of probation. [Citations.] By allowing close supervision of probationers, probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers. [Citation.]" (People v. Robles (2000) 23 Cal.4th 789, 795.)
As relevant to this case, the balancing of equities is fundamentally different than in Riley and favors the government, since a defendant has a significantly diminished expectation of privacy as a probationer and the government has a greater interest to protect the safety of the public from future criminal offenses committed by probationers.
While searches involving electronic devices may raise unique issues of privacy not found in searches of these more traditional categories, there is no reason to depart from the well-recognized treatment of search conditions when that condition implicates electronic devices. Indeed, a person's home also contains considerable personal and confidential information and is a place where a person has the absolute right to be left alone, but conditions which grant broad authority to search the home of a probationer or parolee without a warrant or reasonable cause have been upheld. (People v. Reyes (1998) 19 Cal.4th 743, 746, 754; People v. Ramos (2004) 34 Cal.4th at 494, 505-506; In re Binh L. (1992) 5 Cal.App.4th 194, 203-205; People v. Balestra (1999) 76 Cal.App.4th 57, 66-68; see also United States v. Mitchell (11th Cir. 2009) 565 F.3d 1347, 1351, 1352 [comparing "the hard drive of a computer" to the " 'the digital equivalent of its owner's home, [as] capable of holding a universe of private information' "].)
In the absence of further guidance from the United States or California Supreme Court, we find that such search conditions may be constitutional. In this case, however, the People concede that the court's order is "unclear" about whether defendant must disclose "passwords to membership websites or just passwords to email addresses," and whether membership websites are "encompassed within internet social websites." The court's order is also vague as to how defendant will comply with this condition.
We accept the People's concession that on remand, the court should clarify this condition to address these concerns, in addition to clarifying the social website and pornography orders.
DISPOSITION
The matter must be remanded for the court to clarify the probation conditions that prohibit defendant from accessing pornography and social media websites and disclosing passwords for electronic searches. In all other respects, the judgment is affirmed.
/s/_________
POOCHIGIAN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
SMITH, J.