Opinion
E066289
06-21-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHN DAVID YODER, Defendant and Appellant.
Richard de la Sota, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1501674) OPINION APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge. Affirmed. Richard de la Sota, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant John David Yoder was indicted along with three codefendants—William Clyde Thompson, Erick Monsivais, and Noland Anthony Harper—on various charges relating to the sexual abuse of children. A jury convicted Yoder of four counts of lewd acts on a child under the age of 14 (Pen. Code, § 288, subd. (a); counts 10-13), two counts of child procurement (§ 266j; counts 14-15), two counts of human trafficking (§ 236.1, subd. (c); counts 17, 19), one count of being an accessory (§ 32; count 20), and one count of conspiracy to produce child pornography (§ 182, subd. (a)(1); count 59). The trial court sentenced Yoder to 24 years in prison.
Although Thompson, Monsivais, and Harper were indicted together with Yoder, the four were not tried together. This appeal arises from Yoder's separate trial.
Further undesignated statutory references are to the Penal Code.
Yoder was acquitted of a third charge of child procurement (count 16), after the alleged victim was unable to complete his testimony and the testimony he had given was stricken.
On appeal, Yoder asserts two claims of error. First, he contends that his convictions for child procurement (counts 14-15) are not supported by substantial evidence because he was convicted of those charges on an aiding and abetting theory, but the individuals he purportedly aided and abetted did not themselves commit child procurement. Second, he contends that the trial court should have excluded certain evidence—records of online payments from Harper to Yoder, and testimony from the law enforcement officer who discovered that evidence—that was not timely disclosed to the defense, instead of instructing the jury with CALCRIM No. 306 as a remedy or sanction for the discovery violation.
We reject the first argument and find no error as to the second. We affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
The prosecution presented evidence that Yoder began molesting a boy in his care when the child (victim 1) was about 11 years old. Victim 1 was living with Yoder at the time, and Yoder had been granted a temporary guardianship. Victim 1 was autistic, suffered from pervasive developmental delays, and had previously been molested.
Yoder met Thompson, who sometimes used the name Jason Brock, through an online website called "boylover.org." When they met, Thompson was living in Las Vegas under house arrest, awaiting trial on federal child pornography charges. Yoder helped Thompson break off his ankle bracelet monitor and drove him from Las Vegas to Yoder's home in Desert Hot Springs. Thompson could not sign an apartment lease, sign up for internet service, or register a car in his own name because he was a "fugitive," so Yoder did so for him.
Thompson used the apartment to molest boys and to produce child pornography. Yoder assisted Thompson in the sale of child pornography online, including by sending at least one email to a prospective customer quoting the number of images and price for a set from a particular "photo shoot." Monsivais, who reached a plea deal regarding his own charges and testified as a prosecution witness in Yoder's trial, is one of the people who purchased child pornography from Thompson's website. On one occasion, at Thompson's request, Monsivais paid for his purchase from Thompson's website by depositing money into Yoder's bank account.
Yoder also assisted Thompson in recruiting victims, including by introducing Thompson to children at a skate park where victim 1 played. It was at the skate park where Yoder introduced Thompson to victim 2, then 10 or 11 years old and a friend of victim 1. Yoder introduced Thompson as his cousin Jason, and reassured victim 2 that Thompson "doesn't bite."
Soon after they were introduced, Thompson asked victim 2 to "model" for him at his apartment, offering payment as an incentive. Initially, Thompson paid victim 2 to pose for pictures with clothes on. Later, the "modelling" involved photographs and video of victim 2 in his underwear, in the nude, while masturbating, and while engaging in sexual activity with another minor (victim 3). Thompson himself engaged in sexual activity with victim 2 on multiple occasions, offering monetary payment in exchange.
"Once or twice" victim 2 was present when Yoder told victim 1 to masturbate. Yoder then used his phone to record video of victim 1 doing so. On another occasion, victim 2 saw Yoder "put his mouth on [victim 1's] penis and start[] sucking it," while Thompson, who was also in the room, laughed and said "'Oh, my God.'" Yoder referred to victim 1 as his "special young friend," and encouraged victim 2 to be Thompson's "special young friend."
Thompson introduced victim 2 to Monsivais by driving victim 2 from Desert Hot Springs to Los Angeles, where they met at a restaurant. Subsequently, Monsivais would come to Desert Hot Springs on many weekends to visit victim 2, often meeting at Yoder's house. On one occasion, during an overnight trip to a hotel near the beach, Thompson promised victim 2 a new phone if he let Monsivais "do stuff" with him. Victim 2 accepted the offer and allowed Monsivais to fondle and orally copulate him. On another occasion, at Thompson's house, Thompson offered victim 2 a new scooter if he allowed Monsivais to touch him. Again, victim 2 accepted the offer.
Monsivais testified at trial that Yoder told him that he could be himself with victim 2 at his (Yoder's) house "because it's a safe place" and none of the boys in the home would "say anything." Yoder also gave Monsivais advice on "ways you act around your boy to not scare him or frighten him," pointing him to sections of the "boylover.org" website on the topic.
Thompson offered victim 2 money to recruit other boys to "model" for him. Victim 3 was 11 years old when victim 2 recruited him. Like victim 2, victim 3's interactions with Thompson progressed from clothed modelling to sexual abuse and the production of child pornography.
Thompson introduced victim 3 to Harper via an online video call. A few days later, Harper flew out to Desert Hot Springs from his home in Virginia, staying with Yoder initially, though he eventually got his own apartment. Thompson told victim 3 that he would be Harper's "special young friend." Harper bought victim 3 various things, including clothing, scooters, and cell phones. Harper fondled victim 3 and orally copulated him. In an interview with police, Yoder stated that he thought Thompson had "pimped" victim 3 to Harper, and he believed there was a video of Harper molesting victim 3.
At trial, Yoder did not present an affirmative defense.
After the jury returned its verdicts, the trial court sentenced Yoder to 24 years in prison consisting of the following: (1) eight years on count 17; (2) a consecutive term of two years eight months on count 19; (3) consecutive terms of two years each on counts 10-15; and (4) consecutive terms of eight months each on counts 20 and 59.
III. DISCUSSION
A. Yoder's Convictions for Child Procurement Are Supported by Substantial Evidence.
Yoder contends that his convictions for child procurement (counts 14-15) are not supported by substantial evidence. Nevertheless, his arguments are not focused on the evidence submitted at trial. Rather, they are based on certain comments by the prosecution during closing arguments. We are not persuaded. Substantial evidence in the record supports Yoder's conviction on counts 14 and 15.
1. Additional Background.
During closing argument, with respect to counts 14 and 15, the prosecutor commented that Yoder "is charged not as a direct perpetrator but as instead an aider and abettor." The prosecutor reviewed for the jury the elements of aiding and abetting and of child procurement. The prosecutor also told the jury that it could choose "either William Thompson, Noland Harper, or Erick Monsivais" as the direct perpetrator, and that it then would have to decide whether Yoder aided and abetted that person.
In discussing count 14 specifically, the prosecutor commented as follows: "This count pertains specifically to [victim 2]. With respect to that count . . . the evidence that's been presented in this case is that Erick Monsivais caused, persuaded, or induced [victim 2] to engage in a lewd and lascivious act with him." The prosecutor then discussed the evidence that had been presented to that effect, and asserted that "without question, Count 14 was committed by Erick Monsivais." After discussing the evidence supporting the conclusion that Yoder aided and abetted the sexual abuse of victim 2, the prosecutor concluded that Yoder "aided and abetted Erick Monsivais in the commission of the child procurement against victim 2. I submit to you he is guilty as an aider and abettor . . . ."
In discussing count 15, the prosecutor argued as follows: "With respect to [victim 3], what we know is that Noland Harper had sex with [victim 3]. So because of that, Noland Harper caused, persuaded, or induced [victim 3] to engage in lewd and lascivious acts with him. I submit to you, ladies and gentlemen, the crime, in and of itself, of child procurement with Noland being the direct perpetrator has been committed." The prosecutor then turned to discussion of "how Mr. Yoder aided and abetted Noland Harper in the commission of the crime."
2. Applicable Law and Standard of Review.
Yoder has explicitly disclaimed any argument that the prosecutor's comments regarding counts 14 and 15 constituted prosecutorial misconduct. Rather, his argument is "based upon the insufficiency of the evidence supporting his convictions . . . in Counts 14 and 15" for child procurement in violation of section 266j.
Under the substantial evidence standard of review, we "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 562.) Additionally, the appellate court must "'"presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."'" (People v. Rayford (1994) 9 Cal.4th 1, 23.) Simply stated, "we must determine '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.'" (People v. Davis (1995) 10 Cal.4th 463, 509, italics omitted.)
Section 266j provides: "Any person who intentionally gives, transports, provides, or makes available, or who offers to give, transport, provide, or make available to another person, a child under the age of 16 for the purpose of any lewd or lascivious act as defined in Section 288, or who causes, induces, or persuades a child under the age of 16 to engage in such an act with another person, is guilty of a felony . . . ." (§ 266j, italics added.) Thus, "[p]rocurement of a child in California requires an intent to give, transport, provide, or make available a minor to someone else for the purpose of engaging in a lewd and lascivious act." (In re Rodden (2010) 186 Cal.App.4th 24, 40, italics added.)
"'A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.'" (People v. Hill (1998) 17 Cal.4th 800, 851, quoting People v. Cooper (1991) 53 Cal.3d 1158, 1164.) "The aider and abettor's intent may be made by way of an inference from [his or] her volitional acts with knowledge of their probable consequences. [¶] Thus . . . the weight of authority and sound law requires proof that an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." (People v. Beeman (1984) 35 Cal.3d 547, 560.)
3. Analysis.
There is ample evidence in the record that Thompson committed the offense of child procurement by procuring victim 2 for Monsivais and victim 3 for Harper. Among other things, Thompson drove victim 2 to meet Monsivais, and offered victim 2 payment to allow Monsivais to abuse him. Similarly, Thompson introduced victim 3 to Harper, and told him that he would now be Harper's "special young friend."
Arguably, the record also would support a finding that Yoder committed child procurement as a direct perpetrator, for example, by encouraging victim 2 to be Thompson's "special young friend." Nevertheless, we do not discuss this alternative analysis at any length, because it is unnecessary for the disposition of this appeal.
There also is substantial evidence in the record that Yoder aided and abetted Thompson in committing child procurement. Yoder assisted Thompson in obtaining the apartment where he groomed the victims, the car he used to drive victim 2 to meet Monsivais, and the internet service he used to introduce victim 3 to Harper. Yoder allowed both Monsivais and Harper to use his own home to meet with the victims. He encouraged victim 2 to be the "special young friend" of Thompson, and he offered advice to Monsivais on how best to conduct himself as a "boylover" with victim 2. A jury could reasonably infer from this evidence, among other things, that Yoder aided and abetted Thompson in (to use Yoder's phrasing) "pimp[ing]" victim 2 to Monsivais and victim 3 to Harper.
Indeed, Yoder has offered no argument on appeal that the record lacks sufficient evidence to support his convictions for child procurement as an aider and abettor of Thompson. Rather, he focuses on the prosecutor's closing argument, which is plausibly interpreted—even though the People offer a different interpretation—to identify Monsivais and Harper as the individuals who the prosecution contended to be the direct perpetrator of the offense of child procurement, whom Yoder aided and abetted. There is evidence that Monsivais and Harper personally committed lewd and lascivious acts with their respective victims, but there is no evidence that they made the victims available to another person for such purposes, or encouraged the victims to engage in such acts with another person, as required to support a conviction under section 266j. (See In re Rodden, supra, 186 Cal.App.4th at p. 40.)
Yoder's argument fails because it is based on the false premise that the jury is limited to convicting a defendant on the theory of the case argued by the prosecution. It is not so limited. Rather, "[i]t is elementary . . . that the prosecutor's argument is not evidence and the theories suggested are not the exclusive theories that may be considered by the jury." (People v. Perez (1992) 2 Cal.4th 1117, 1126.) Similarly, in conducting substantial evidence review, we examine the "whole record" for evidence in support of the judgment, and it is generally irrelevant to our analysis what theory of the case was advanced by the parties. (People v. Johnson, supra, 26 Cal.3d at p. 562.)
Moreover, "'[w]here the jury considers both a factually sufficient and a factually insufficient ground for conviction, and it cannot be determined on which ground the jury relied, we affirm the conviction unless there is an affirmative indication that the jury relied on the invalid ground.'" (People v. Thompson (2010) 49 Cal.4th 79, 119.) The circumstance that the prosecutor arguably proposed a factually insufficient ground for conviction during closing argument does not constitute an affirmative indication of how the jury reached its decision: "When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for '[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.'" (People v. Osband (1996) 13 Cal.4th 622, 717.)
Because there is substantial evidence in the record supporting Yoder's convictions for child procurement on the theory that Yoder aided and abetted Thompson, and nothing in the record affirmatively demonstrates the jury relied on any factually insufficient ground for conviction, we will affirm the judgment.
B. Yoder Has Demonstrated No Prejudicial Error Regarding Admission of Late-disclosed Evidence.
Yoder contends that the trial court should have excluded certain evidence regarding online payments from Harper to Yoder that was not timely disclosed to the defense, instead of instructing the jury with CALCRIM No. 306 as a remedy or sanction for the discovery violation. We find no abuse of the trial court's discretion and, even assuming error, no prejudice to Yoder.
1. Additional Background.
Approximately a year before trial, an investigator for the federal Department of Homeland Security, Farris Moore, who was analyzing certain PayPal records, found six online payments to Yoder from Harper. The investigator wrote a report, which was dated January 15, 2015. At some point, the PayPal records and the report were included in the files of the prosecution in the present case. The trial prosecutor, however, only discovered them in December 2015, during jury selection. The defense received a non-Bates stamped version of the documents on New Year's Eve, and a Bates stamped version of the documents that included the underlying records, but omitted the report, was provided on January 13, 2016. Moore was identified as a potential prosecution witness in the first week of January 2016. The jury was sworn in and the parties presented their opening arguments on January 13, 2016.
On February 1, 2016, the prosecution announced its intention to call Moore to testify regarding his analysis of the PayPal records. The defense requested that the proposed evidence be excluded from evidence as a sanction for the discovery violation. Defense counsel conceded that the late production of the evidence to the defense was "not intentional on the part of the People," but argued that it "should not be placed in the position of cross-examining a witness given the circumstances in discovery . . . ."
After considering the matter overnight, on February 2, 2016, the trial court found that there had been "a discovery violation," but ruled that it would "allow the testimony of Mr. Moore to go forward," with a special instruction to the jury regarding the discovery violation. Defense counsel indicated that it would not conduct any cross- examination, stating: "We are not cross-examining this person because we don't have the information in a timely fashion to do an effective cross-examination. It is yet another example of my client being denied his Sixth Amendment right to counsel. This is not a little thing. This is a big thing."
Before Moore testified on February 2, 2016, the trial court instructed the jury with CALCRIM No. 306, as follows: "Both the People and the defense must disclose their evidence to the other side before trial within the time limits set by law. Failure to follow this rule may deny to the other side the chance to produce all relevant evidence to counter opposing evidence or to receive a fair [trial]. [¶] An attorney for the People failed to disclose evidence of the report of Mr. Moore and supporting documents within the legal time period. In evaluating the weight and significance of the evidence related to Mr. Moore's testimony and the supporting documentation, you may consider the effect, if any, of that late disclosure."
After the late discovery instruction, the People proceeded with direct examination of Mr. Moore. The defense declined to conduct any cross-examination, stating that "the defense is not in a position to effectively cross-examine Mr. Moore at this time." Mr. Moore was excused subject to recall, but he was not in fact recalled by any party to testify further.
2. Applicable Law and Standard of Review.
Discovery in California criminal prosecutions is governed by section 1054 et seq. (People v. Tillis (1998) 18 Cal.4th 284, 289.) If the prosecution does not comply with its discovery obligations, the trial court "may make any order necessary to enforce those obligations, 'including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the trial court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.'" (People v. Superior Court (Mitchell) (2010) 184 Cal.App.4th 451, 458-459 [quoting § 1054.5, subd. (b)].) "The court may prohibit the testimony of a witness pursuant to [section 1054.5] subdivision (b) only if all other sanctions have been exhausted." (§ 1054.5, subd. (c); see People v. Jordan (2003) 108 Cal.App.4th 349, 358 ["the exclusion of testimony is not an appropriate remedy absent a showing of significant prejudice and willful conduct motivated by a desire to obtain a tactical advantage at trial."].)
The trial court's discovery ruling is reviewed for abuse of discretion. (People v. Lamb (2006) 136 Cal.App.4th 575, 581.) We will therefore uphold the trial court's determination unless it is shown to be arbitrary, capricious, or beyond the bounds of reason. (People v. Celis (2006) 141 Cal.App.4th 466, 476.) Any error is subject on appeal to the harmless error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836, and thus is a basis for reversal only where it is reasonably probable that the omission affected the trial result. (People v. Zambrano (2007) 41 Cal.4th 1082, 1135 fn. 13.)
3. Analysis.
The trial court's denial of the defense's request to exclude the evidence at issue was not arbitrary, capricious, or beyond the bounds of reason. There is nothing in the record suggesting that the prosecution's discovery violation constituted "willful conduct motivated by a desire to obtain a tactical advantage at trial." (People v. Jordan, supra, 108 Cal.App.4th at p. 476.) To the contrary, defense counsel explicitly conceded that the violation was "not intentional on the part of the People . . . ."
Furthermore, it was reasonable for the trial court to conclude that, even if the defense was prejudiced to some extent by the late discovery, that prejudice was not so significant as to require exclusion. (See People v. Jordan, supra, 108 Cal.App.4th at p. 358.) Although the evidence was not timely disclosed 30 days before the commencement of trial, it was disclosed more than 30 days before the presentation of the evidence to the jury. (Ibid. [absent good cause, evidence subject to disclosure must be disclosed "at least 30 days prior to trial or immediately if the information becomes known within 30 days of trial"; see § 1054.7].) Yoder has not attempted—either in the trial court or on appeal—to describe what further preparation for cross-examination the defense would have done, had the records been timely disclosed. The defense's generalized statement that it was "not in a position to effectively cross-examine Mr. Moore" is "insufficient to demonstrate prejudice" from the untimely disclosure. (People v. Verdugo (2010) 50 Cal.4th 263, 282.)
Additionally, even assuming error, Yoder fails to demonstrate a reasonable likelihood that the result of his trial would have been different if the challenged evidence had been excluded. Moore's testimony established that Yoder had received several payments from PayPal accounts associated with Harper. In his interviews with police, Yoder conceded that he had received several payments from PayPal accounts in Harper's name. At trial, Monsivais testified that he had paid for child pornography purchased from Thompson's website by depositing money into Yoder's account. The evidence presented to the jury also included emails Yoder sent to some of Thompson's customers, describing among other things the number of images and price of a particular "photo shoot." Moore's testimony was additional evidence, but hardly the exclusive evidence, that Yoder assisted Thompson with the financial aspects of his child pornography business. Moreover, there was overwhelming evidence that Yoder was involved in Thompson's criminal enterprise in a variety of ways unrelated to the receipt of money, including the recruitment and grooming of victims. We find no reasonable likelihood that the result at trial would have been any different even if there had been no evidence related to Yoder's receipt of payments.
We conclude that Yoder fails to demonstrate error, let alone prejudicial error, in the trial court's discovery ruling or any other aspect of the trial.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MCKINSTER
Acting P. J. FIELDS
J.