P. v. Sanchez
Filed 7/11/13 P. v. Sanchez CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
ADRIAN P. SANCHEZ,
Defendant and Appellant.
B241883
(Los Angeles
County
Super. Ct.
No. KA095889)
APPEAL from
a judgment of the Superior Court of the County
of Los
Angeles, Mike Camacho, Jr., Judge. Affirmed.
David H.
Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, David E. Madeo, Deputy Attorney General,
for Plaintiff and Respondent.
>
INTRODUCTION
Defendant and appellant Adrian P. Sanchez
(defendant) was convicted of
two counts of a lewd act upon a child (Pen. Code, § 288,
subd. (a)
subd. (d)), aggravated sexual assault of a child (rape) (§ 269, subd. (a)(1)),
sodomy in violation of (§ 286, subd. (c)(2)(c)), and sexual penetration upon a
child (§ 289, subd. (a)(1)(C)(5)). On
appeal, defendant contends that the trial court erred in instructing the jury with CALCRIM Nos.
1111, 1000, 1030 and 1045; denied his constitutional right to due process and a
fair trial by refusing his request for a pinpoint instruction on his propensity
to act in a certain manner; and denied his constitutional
for a new trial because law enforcement officers interfered with defense
efforts to contact witnesses before trial.
We affirm the judgment of conviction.
BACKGROUND
A.
Factual
Background
Patricia
was 16 years old at the time of trial.
She lived in El Monte with
her sister, M., her brother, Alejandro, and their mother. Defendant lived next door to Patricia’s
family for several years.
Defendant
is about eight years older than M., who
is almost seven years older than Patricia.
In or about 2002, defendant started dating M., and they dated for about
10 years. M. was 12 years old she and
defendant would kiss, hold hands, and defendant may have touched her
breast. When M. was about 13 years old,
she considered defendant her boyfriend; defendant began having sexual relations
with M. when she was 15 year old.
In about
2006, defendant moved in with Patricia and her family. Defendant did not do so because the family
was in need of financial assistance.
On July 1, 2009, when Patricia was 13
years old, her mother died. M. and
defendant both worked to pay the household bills, but because at that time M.
was only earning approximately 210 dollars per week, the rent was primarily
paid by defendant. M. gave the money she
earned to defendant so that he could pay the bills. Defendant rented two of the bedrooms in the
house to his friends.
About a
week after Patricia’s mother died, defendant touched Patricia inappropriately
on her breast, and pulled Patricia’s pajama bottoms down. She was scared and told defendant to stop,
but did not want to say it loudly because her brother was sleeping in the same
room and she was embarrassed. Defendant
opened Patricia’s legs with his hand, placed his penis in Patricia’s vagina,
and eventually ejaculated outside of her vagina. Defendant told Patricia that he loved her and
she was not to tell anyone what happened.
Defendant said that if she told anyone, he would leave her and M. and
move out of the house. Defendant said
that they would not be able to pay the rent and would be homeless.
When
Patricia was about 13 years old, defendant put his penis inside her anus for
the first time. Defendant did that a
total of about five or six times.
When
Patricia was 14 years old, defendant penetrated her vagina with his
finger. Multiple times defendant grabbed
Patricia hand and made her touch his penis inside his pajamas. Defendant would also tell Patricia to put her
mouth on his penis, and she did so because she was scared. Twice defendant ejaculated in Patricia’s
mouth. Defendant also put his mouth on
Patricia’s vagina.
Patricia
tried to push defendant away whenever he touched her. She told him to stop, but he continued. Defendant regularly told Patricia that if she
told anyone what he did to her, defendant would move out, and her sister would
not be able to support her family.
In February
or March 2011, outside her house, Patricia told defendant that she did not want
to have sex with him. Defendant was in
the driver’s seat of his truck, and Patricia was standing outside the passenger
seat. Defendant became angry and forcibly
pulled Patricia into the truck. She
tried to get out, but defendant pulled her shirt, ripping it, and grabbed her
hair. Defendant drove onto the freeway
and said that, if she was not going “to be his,†then she was not going to be
with anyone else; defendant threatened to drive into oncoming traffic to kill
them both. Patricia was scared and
opened the door to jump out of the moving truck. Defendant grabbed her arm and held her. Defendant
exited the freeway, stopped the vehicle, started crying, and told
Patricia that he loved
her. Patricia was
still scared, but she agreed to have sex with him again because she was afraid
that he was going to leave.
Defendant
had sex with Patricia over 70 times between 2009 and 2011. Patricia estimated that it occurred
approximately once a week. Patricia did
not want to have sex with defendant and did not want to be his girlfriend.
When
Patricia was 15 years old, she told her school counselor that defendant was
abusing her, and the counselor called the police. On October
20, 2011, Patricia spoke to the police about defendant’s sexual
abuse over the last two years.
Defendant was arrested that month. The last time that defendant sexually abused
Patricia was the week before he was arrested.
On October
20, 2011, law enforcement officers interviewed defendant, and the interview was
recorded and played for the jury.
Defendant said that he and Patricia were boyfriend and girlfriend after
her mother died. He admitted to touching
Patricia sexually and performing oral sex on her when she was 15 years old, and
that he had sexual intercourse with Patricia once or twice a week for a year
and a half. He said he never forced
Patricia to have sex. Patricia performed
oral sex on him at least ten times, and he had anal sex with her several
times. Defendant was also having sex
with M. during this time. Defendant said
that M. was unable to give him children, so he had to find a way to have a
child with someone else.
Lucia is the aunt of
Patricia and Alejandro, and in October 2011, Patricia and Alejandro went
to live with Lucia. Later, a defense investigator asked Lucia for permission
to speak with either Patricia or Alejandro, and Lucia refused to allow
that. Alejandro later refused to speak
with the investigator.
Evidence
Defendant
did not testify and presented no evidence.
B.
Procedural
Background
The
District Attorney of Los Angeles County filed an information charging defendant
with lewd act upon a child, in violation of section 288, subdivision (a) (count
1), forcible lewd act upon a child in violation of section 288, subdivision
(b)(1) (count 2), kidnapping in violation of section 207, subdivision (a)
(count 3), unlawful sexual intercourse in violation of section 261.5,
subdivision (d) (count 4), aggravated sexual assault of a child (rape) in
violation of sections 269, subdivision (a)(1) (count 5), aggravated sexual assault of a child (sodomy) in
violation of section 269, subdivision (a)(3) (count 6), and aggravated sexual
assault of a child (§ 289(a)) in violation of section 269, subdivision (a)(5)
(count 7). Counts 6 and 7 were modified
as sodomy in violation of section 286, subdivision (c)(2)(c), and sexual
penetration upon a child in violation of section 289, subdivision (a)(1)(C),
respectively.
Following a trial, on count two the
jury found defendant guilty of lewd act upon a child, in violation of section
288, subdivision (a), and guilty as charged on the remaining counts. The trial court sentenced defendant to a
total determinate term of 28 years, eight months to life in state prison, plus
15 years to life in state prison. On
count 5, the court imposed a 15-years-to-life term. The court imposed a consecutive six-year term
on count 1, a concurrent six-year term on count 2, a consecutive term of one
year and eight months on count 3, a concurrent three-year term on count 4, a
consecutive 11-year term on count 6, and a consecutive 10-year term on count 7.
DISCUSSION
A. CALCRIM Nos. 1111, 1000,
1030 and 1045
Defendant contends that the trial court erred in
instructing the jury with CALCRIM Nos. 1111, 1000, 1030, and 1045. According to defendant, because CALCRIM Nos.
1111, 1000, 1030, and 1045 provide that the relevant wrongful acts can be
accomplished by “fear†if the victim or another person “is actually and
reasonably afraid or she is actually but unreasonably afraid and the defendant
knows of her fear and takes advantage of it,†they “negate[d] the need for the
offense[s] [set forth in counts 2, 5, 6, and 7, respectively] to have been
accomplished by means of ‘fear of immediate and unlawful bodily injury.’â€
Defendant was not prejudiced as to his claim of
1111, and he forfeited his claim of error as to CALCRIM Nos. 1000, 1030 and
1045. In any event, these instructions
were proper statements of the law.
1. Standard
of Review
We review
defendant’s claims of instructional error de novo. (People
v. Cole (2004) 33 Cal.4th 1158, 1210; People
v. Sweeney (2009) 175 Cal.App.4th 210, 223.) “‘The proper test for judging the adequacy of
instructions is to decide whether the trial court “fully and fairly instructed
on the applicable law . . . .â€
[Citation.] “‘In determining
whether error has been committed in giving or not giving jury instructions, we
must consider the instructions as a whole … [and] assume that the jurors are
intelligent persons and capable of understanding and correlating all jury
instructions which are given. [Citation.]’â€
[Citation.] “Instructions should
be interpreted, if possible, so as to support the judgment rather than defeat
it if they are reasonably susceptible to such interpretation.†[Citation.]’ (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112 [93
Cal.Rptr.2d 433].)†(
702, 707.)
2. Relevant Proceedings
The trial court discussed instructions on each
offense. Regarding count 2—forcible lewd
act upon a child, in violation of section 288, subdivision (b)(1)—the trial
court discussed CALCRIM No. 1111, which states in part, “In committing the act,
the defendant used force, violence, duress, menace, or fear of immediate and
unlawful bodily injury to the child or someone else.†Defense counsel objected that violence,
duress, menace, and fear of bodily injury should be eliminated from the jury
instruction. The trial court agreed to
eliminate from the jury instruction the element of defendant using duress and
menace, but that it would conduct additional research regarding the
instruction.
Regarding
count 5—aggravated sexual assault of a child, in violation of section 269,
subdivision (a)(1)—the trial court discussed CALCRIM No. 1000 concerning rape
by force, an element of count 5. CALCRIM
No. 1000 states in part, “The defendant accomplished the intercourse by force,
violence, duress, menace, or fear of immediate and unlawful bodily injury to
the woman or to someone else.†The trial
court stated that it would eliminate from the jury instruction the reference to
violence, duress and menace as means that defendant used to commit the crime,
leaving only force and fear of bodily injury.
Defense counsel stated that this modification was acceptable.
On count 6, sodomy, in violation of section 286,
subdivision (c)(2)(C), defense counsel suggested that the trial court utilize
CALJIC No. 10.59.8 rather than CALCRIM No. 1030 because the CALCRIM instruction
did not include the age-range elements for this particular crime. The trial court suggested modifying CALCRIM
No. 1030 to include the additional age-range elements. Defense counsel also requested that the trial
court instruct the jury with CALJIC No. 10.51, for count 7, sexual penetration
upon a child, in violation of section 289, subdivision (a)(1)(C), rather than
with CALCRIM No. 1045, for the same reason. The trial court modified the
CALCRIM instructions for counts 6 and 7 (CALCRIM Nos. 1030 and 1045,
respectively) to include that “the other person, a minor who was 14 years of
age or older, did not consent to the act.â€
Defense counsel agreed to this modification.
the jury with the following modified jury instructions: CALCRIM No. 1111
regarding count 2 for a forcible lewd act upon a child; CALCRIM No. 1000
concerning rape by force, an element of count 5 for aggravated sexual assault
of a child (CALCRIM 1123); CALCRIM No. 1030 regarding count 6 for forcible
sodomy; and CALCRIM No. 1045 regarding count 7 for forcible sexual
penetration. Each of the jury
instructions provided that defendant can accomplish the relevant wrongful act
by “fear of immediate and unlawful bodily injury†to the victim or another, and
the wrongful act can be accomplished by “fear†if the victim or another person
“is actually and reasonably afraid or she is actually but unreasonably afraid
and the defendant knows of her fear and takes advantage of it.â€
i. Prejudicial Error Regarding CALCRIM No. 1111
Defendant contends that the trial court erred in
instructing the jury with CALCRIM No. 1111.
Defendant did not establish that he was prejudiced by such a claimed
error. (People v. Hines (1997) 15 Cal.4th 997, 1080 [“Absent prejudicial
error or legal insufficiency of evidence, this court must uphold the jury’s
verdictâ€].)
The trial court instructed the jury
with CALCRIM 1111, as modified, as to count 2 for “lewd or lascivious act by
force or fear on a child under the age of 14 years in violation
of . . . section 288, subdivision (b), subdivision (1).†The jury, however, found defendant not guilty
of that charge, and instead convicted him under count 2 for the lesser offense
of performing a lewd act upon a child, in violation of section 288, subdivision
(a). Plaintiff has not established that
even if the trial court erred in instructing the jury with CALCRIM No. 1111, it was
prejudicial error. Even if defendant
would have been prejudiced by a purported error in instructing the jury with
CALCRIM No. 1111, however, as discussed post,
the trial court did not err.
ii. Forfeiture
The
Attorney General contends that defendant has forfeited his instructional claims
of error regarding CALCRIM Nos. 1000, 1030 and 1045. We agree.
“Ordinarily,
an appellate court will not consider a claim of error if an objection could
have been, but was not, made in the lower court. [Citation.]
The reason for this rule is that ‘[i]t is both unfair and inefficient to
permit a claim of error on appeal that, if timely brought to the attention of
the trial court, could have been easily corrected or avoided.’ [Citations.]
‘[T]he forfeiture rule ensures that the opposing party is given an
opportunity to address the objection, and it prevents a party from engaging in
gamesmanship by choosing not to object, awaiting the outcome, and then claiming
error.’ [Citation.]†(People
v. French (2008) 43 Cal.4th 36, 46.)
The forfeiture rule specifically applies to a defendant who fails to
object to a jury instruction on the grounds urged on appeal. “Defendant’s
failure to object to the instruction below . . . forfeits the claim
on appeal. [Citations.]†(People
v. Virgil (2011) 51 Cal.4th 1210, 1260; People v. Stone (2008) 160 Cal.App.4th 323,
331.)
On appeal,
defendant contends that the trial court erred in instructing the jury with CALCRIM Nos. 1111, 1000,
1030, and 1045, as modified, because they provide that
the
relevant wrongful acts can be accomplished by “fear†if the victim or another
person was in reasonable fear, or was in
unreasonable fear and the defendant knows that unreasonable fear and takes
advantage of it. Defendant,
however, only objected to the fear element remaining in CALCRIM 1111; he did
not do so regarding CALCRIM Nos. 1000, 1030, and 1045. He therefore forfeited his claims that the
trial court erred in instructing the jury with those latter instructions.
An appellate court may review a jury instruction in the
absence of objection if the substantial rights of the defendant are
affected. (§ 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7;
Cal.App.4th 919, 927.) Because, as
discussed below, the trial court did not err in instructing the jury with CALCRIM
Nos. 1000, 1030 and 1045, as modified, defendant’s substantial rights were not affected.
iii. Instructing the Jury with CALCRIM Nos. 1111, 1000, 1030, and 1045
Defendant contends that CALCRIM Nos. 1111, 1000, 1030 and
1045, as given by the trial court, “were constitutionally flawed because they
removed an essential element of the offense from the jury’s consideration, in
violation of the Sixth Amendment right to a jury trial and the Fifth and
Fourteenth Amendment rights to due process of law.†We disagree.
Each of the challenged jury instructions defines offenses
that punish a defendant who accomplishes the relevant wrongful act by “fear of
immediate and unlawful bodily injury†to the victim or another. Because the jury instructions state that the
wrongful act can be accomplished by “fear†if the victim or another person “is
actually and reasonably afraid or she is actually but unreasonably afraid and
the defendant knows of her fear and takes advantage of it,†according to
defendant, they “negate[] the need for the offenses to have been accomplished
by means of ‘fear of immediate and unlawful bodily injury.’†Defendant argues that the instructions
allowed the jury to convict him based on a finding that the victim (or the relevant
other person) was simply afraid of something other than immediate bodily
injury, such as fear of financial hardship.
The jury was also instructed with CALCRIM 200 stating
that they were to consider the jury instructions as a whole, and that whether
some instructions applied would depend on what the jury found to be the
facts. “We presume that the jury
understood and followed the instructions.
(People v. Stitely [(2005)] 35
Cal.4th [514,] 559.)†(
774, 834; People v. Cline (1998) 60
Cal.App.4th 1327, 1336.)
The element of fear of immediate and
an objective as well as a subjective component.
The subjective component “asks whether a victim genuinely entertained a
fear of immediate and unlawful bodily injury sufficient to induce her to submit
to sexual intercourse against her will.
In order to satisfy this component, the extent or seriousness of the
injury feared is immaterial.†(
856; People v. Barnes (1986) 42
Cal.3d 284, 304.)
Defendant erroneously reads the portion of the jury
instruction that the victim (or another person) is deemed to be in fear if she
“is actually and reasonably afraid or she is actually but unreasonably afraid
and the defendant knows of her fear and takes advantage of it,†in isolation
from the remaining portions of the instructions. Defining that the fear element can be
satisfied by one either being objectively or subjectively fearful does not
“negate[]†the requirement, specified in each of the challenged jury
instructions, that the fear must be of an immediate and unlawful bodily
injury. The trial court did not err in
instructing the jury with CALCRIM Nos. 1111, 1000, 1030 and 1045, as
modified.
B. Pinpoint
Instruction
Defendant contends that the trial court denied his
constitutional right to due process and a fair trial by refusing his request
for a pinpoint instruction on his propensity to act in a certain manner. We disagree.
1. Relevant Proceedings
Defendant’s counsel requested that
the trial court instruct the jury with CALCRIM No. 350 on the character of the
defendant, which instruction states in relevant part, “You have heard
character testimony that the defendant (is a _________________
reputation for _________________
works). [¶] . . . [¶] You may take
that testimony into consideration along with all the other evidence in deciding
whether the People have proved that the defendant is guilty beyond a reasonable
doubt.â€
M. testified that although she had sexual relations with
defendant, if she did not want to engage in any sexual acts, including sodomy,
defendant would not force her to do it.
Defendant never threatened to leave her or her family if she did not
engage in a sexual act. Defendant’s
counsel argued that this supported defendant having a character trait that he
would not force Patricia to have sex with him when she did not want to do
so. The prosecutor argued that
defendant’s acts with M. were not relevant because she was an adult and was in
a romantic relationship with defendant.
The trial court denied the requested instruction, finding
that “although it is a legitimate issue to argue [to the jury, that because
defendant did not force M. to perform sexual acts, he would not force Patricia
to have sex with him when she did not want to] but not in the sense of [it
being a] character trait. . . .
Force can be something implied.
That’s why we have issues of duress and coercion here, manipulation of a
young child to consent to certain acts that a child would not otherwise do
had . . . she not been in that environment. In this case, I’m thinking about the victim’s
concern that if she didn’t acquiesce to the defendant’s demands that she and
her family would be left out on the streets or something to that extent. I don’t think this is the type of character evidence
I need to instruct the jury on. I think
it would be more confusing anyway.â€
“A trial court must instruct the
jury . . . on all general principles of law . . . ‘“that are necessary for the jury’s
understanding of the case.†[Citation.] In addition, “a defendant has a right to an
instruction that pinpoints the theory of the
defense . . . .â€â€™
[Citation.] The court may,
however, ‘properly refuse an instruction offered by the defendant if it
incorrectly states the law, is argumentative, duplicative, or potentially
confusing [citation], or if it is not supported by substantial evidence
[citation].’ [Citation.]†(People
v. Burney (2009) 47 Cal.4th 203, 246.)
A defendant may rebut with character evidence the
evidence introduced by the prosecution of defendant’s uncharged sexual offenses
to show the defendant has a disposition to commit sex offenses. (People
v. Callahan (1999) 74 Cal.App.4th 356, 374-379.) Defendant was M.’s “boyfriend†commencing
when she was 13 years old. The prosecution
introduced evidence that defendant began having sexual relations with M. when
she was about 15 years old. The jury was
instructed with CALCRIM 1191 regarding evidence of uncharged sex offenses.
court erred in instructing the jury with CALCRIM 1191.
“The term ‘character’ or ‘character evidence’ is not
defined in the Evidence Code, but the term ‘character’ has been described as
‘the tendency to act in a certain manner under given circumstances.’†(People
v. Callahan, supra, 74
Cal.App.4th at p. 375, citing People v.
Shoemaker (1982) 135 Cal.App.3d 442, 446, fn. 2.) “[C]haracter evidence . . . is
limited to evidence of the character or trait of character relevant to the
offense charged.†(People v. Taylor (1986) 180 Cal.App.3d 622, 629.)
The trial court had the discretion to determine that
evidence defendant did not force M. to have sexual intercourse is not relevant
to whether he would force Patricia to have sex with him. According to the prosecution, defendant
coerced Patricia to acquiesce to his sexual demands based on the threat
that if she refused his demands he would leave and she and her family would
suffer a financial hardship. That defendant did not
threaten M. that he would leave her or her family if she did not engage in a
sexual act is not probative of whether defendant made that threat to
Patricia. The circumstances were
different. Had defendant threatened M.
to leave her or her family, it would not be equivalent to making such a threat
to Patricia.
When defendant and M. began having sexual relations, M.’s
mother was alive and defendant was not supporting the family. M., almost seven years older than Patricia,
was 20 years old when her mother passed away and defendant started helping to
support the family. By contrast, when
defendant began to sexually abuse Patricia, Patricia was 13 years old, it was
after the mother died, and defendant was helping to support the family. Any threat by defendant to M. before her
mother died would not impact the family’s financial stability. Any threat by defendant to M. after her
mother died would not have the same impact as on a 13-year-old child because at
the time M. was at least twenty years old and, unlike a minor child, had some
control over the family’s financial stability.
In addition, defendant’s sexual abuse of Patricia was
based on fear and duress. The fact that
defendant did not physically force M., his adult girlfriend, to engage in
sexual acts did not support his defense that he never sexually abused Patricia,
a minor, by means of fear or duress.
The trial court did not err in refusing to instruct the
jury with CALCRIM 350 because it was not relevant and was potentially
confusing. (People v. Burney, supra,
47 Cal.4th at p. 246.)
C. Impeding Defendants
Efforts to Contact Witnesses
Defendant contends that reversal is
required because his state and federal constitutional
counsel were violated by law enforcement officers who interfered with defense
efforts to contact witnesses before trial.
We disagree.
1. Standard
of Review
“[W]e
independently review orders denying a motion
for new trial to determine if prejudicial trial error occurred (
1261 [17 Cal.Rptr.3d 302, 95 P.3d 523]).â€
(People v. Mayham (2013) 212
Cal.App.4th 847, 850.)
2. Relevant Proceedings
Lucia testified at trial utilizing
the services of a Spanish-language interpreter.
In October 2011, Lucia’s niece, Patricia, and Lucia’s nephew, Alejandro,
came to live with Lucia. Before trial, a defense investigator
contacted Lucia and asked to speak with Patricia and Alejandro about the
case. Lucia had her daughter call El
Monte Police Department Detective Carter, the investigator on defendant’s case,
to ask if she should allow defendant’s investigator to speak with Patricia and
Alejandro. After speaking with the detective,
Lucia’s daughter told Lucia that “they shouldn’t talk to anyone.†Lucia testified that she did not personally
speak with Detective Carter and does not know if those were his words. Based on what Lucia’s daughter told her after
her conversation with Detective Carter, Lucia did not allow the investigator to
speak with Patricia. Because Alejandro
was an adult—then 18 years old—Lucia asked Alejandro if he wanted to be
interviewed, and he said no. Lucia also
refused to be interviewed. On March 13,
2012, the defense investigator contacted Alejandro, and Alejandro declined to
discuss this matter with him.
Defendant filed a motion for new
trial alleging, inter alia, police misconduct in preventing Patricia and
Alejandro from speaking to the defense investigator before trial denied him his
due process rights. The prosecutor
opposed the motion stating, “Following receipt of the defendant’s motion for a
new trial, investigators from the District Attorney’s Office contacted
Marlin . . ., Lucia[’s] . . . daughter. Marlin told [one of the investigator’s] that
Det. Carter told her the children did not have to talk to the defense
investigator if they did not want to and they were not obligated to speak with
the investigator. Marlin interpreted
this response to mean her mother should not allow the children to be
interviewed and instructed her accordingly, which is consistent with Lucia’s
trial testimony.†The trial court denied
defendant’s motion.
“‘The
requirement of the Fourteenth Amendment is for a fair trial’; the due process clause ‘prohibits the
conviction and incarceration of one whose trial is offensive to the common and
fundamental ideas of fairness and right.’
Compliance with this standard required that appellant, charged with a
capital offense, be represented at trial by counsel.†(Brubaker
v. Dickson (9th Cir. 1962) 310 F.2d 30, 37; see People v. Staten (2000) 24 Cal.4th 434, 450.) The due process right of effective counsel
includes the right to services necessary in the preparation of a defense. (Mason
v. State of Arizona (9th Cir. 1974) 504 F.2d 1345, 1351;
327, 330.)
The due
process clause of the Fourteenth Amendment includes the right of an accused to
have compulsory process for obtaining witnesses in his favor. (Washington
v. Texas (1967) 388 U.S. 14, 17-18.)
“[A] defendant’s ‘constitutional right to compulsory process is violated
when the government interferes with the exercise of his right to present
witnesses on his own behalf . . . .’â€
(People v. Fuiava (2012) 53
Cal.4th 622, 691.) “‘“Whether rooted
directly in the Due Process Clause of the Fourteenth Amendment or in the
Compulsory Process or Confrontation Clauses of the Sixth Amendment, the
Constitution guarantees criminal defendants ‘a meaningful opportunity to present
a complete defense.’†[Citation.]’†(People
v. Gonzales (2012) 54 Cal.4th 1234, 1258.)
“[A]
prosecutor has no right to instruct witnesses not to talk with a defendant or
defense counsel. [Citation.] A defendant, having the right to compulsory
process for obtaining witnesses to testify in his behalf, also has the right
either personally or by attorney, subject in certain instances to the proper
exercise of judicial supervision, to ascertain what their testimony will be. [Citation.]
This does not mean, of course, that a court has the authority to
interview where the witness objects.
[Citation.] It simply means a
defendant is free to interview a witness where the witness is willing. [Citation.]
Where the witness informs one party of his or her knowledge of a case
and refuses to speak to the other party’s representative, the remedy is
impeachment of the witness’s testimony on the basis of bias. [Citation.]â€
(People v. Pitts (1990) 223
Cal.App.3d 606, 872-873, superseded on other grounds as stated in
530, 536-537.)
Defendant
has failed to show that the prosecution, or any law enforcement officer,
committed misconduct, and there was substantial evidence that they did not commit
misconduct. Defendant contends that,
“During trial, it was revealed that after the defense investigator tried to
contact Patricia and Alejandro, Lucia . . . , the guardian for
Patricia and Alejandro, called the police detective who told her it was not correct
for them to speak to the defense investigator.
As a result, she did not allow them to speak to the investigator.†However, the record reflects that Lucia testified that her
daughter, after speaking with Detective Carter, told her that Patricia and
Alejandro “shouldn’t talk to anyone.â€
Because Lucia did not personally speak with Detective Carter, she does
not know if those were his words. The
prosecutor’s opposition to defendant’s motion for new trial states that Lucia’s
daughter told one of prosecution’s investigators that Detective Carter told her
that the children did not have to
talk to the defense investigator if they did not want to and they were not
obligated to speak with the investigator; Lucia’s daughter apparently
interpreted this response to mean that Lucia should not allow the children to
be interviewed. In addition, Lucia
testified that she asked Alejandro, who was an adult by this time, if he
wanted to talk to the investigator, and he declined. Defendant’s investigator also contacted
Alejandro directly, and Alejandro declined to speak to the investigator.
In
addition, defendant failed to explain how he was prejudiced by law enforcement
officers who purportedly told Lucia that “it was not correct [for Patricia and
Alejandro] to speak to the defense investigator.†Plaintiff has not established that Patricia
and Alejandro would have spoken to the defense investigator because they had a
choice not to do so. In addition,
assuming that they would have spoken with the defense investigator, defendant
has failed to establish that the defense would have received any information it
did not already know or that was in any way exculpatory or impeaching. Also, both Patricia and Alejandro testified
at trial, and Patricia also testified at the preliminary hearing. Defendant, therefore, had ample opportunity
to question them about the events in this case.
There was no prejudicial misconduct.
DISPOSITION
The judgment is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.
MOSK,
J.
We concur:
TURNER,
P. J.
O’NEILL,
J.
name="_ftn1" title="">[1] All
statutory citations are to the Penal Code unless otherwise noted.
name="_ftn2" title="">[2] The
trial court instructed the jury with CALCRIM 1191, as modified, as follows: “The
People presented evidence that the defendant committed the crime of lewd act upon a child, in violation of Penal
Code section 288, subdivision (a) that was not charged in this case. This crime is defined for you in these
instructions. [¶] You may consider
this evidence only if the People have proved by a preponderance of the evidence
that the defendant, in fact, committed the uncharged offense. Proof by a preponderance of the evidence is a
different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the
evidence if you conclude that it is more likely than not that the fact is
true. [¶] If the People have not met this burden of
proof, you must disregard this evidence entirely. [¶] If
you decide that the defendant committed the uncharged offense, you may but are
not required to conclude from that evidence that the defendant was disposed or
inclined to commit sexual offenses, and based on that decision, also conclude
that the defendant was likely to commit and did commit the offenses charged
here. If you conclude that the defendant
committed the uncharged offense, that conclusion is only one factor to consider
along with all the other evidence. It is
not sufficient by itself to prove that the defendant is guilty of the
offenses. The People must still prove
each charge beyond a reasonable doubt. [¶] Do not
consider this evidence for any other purpose.â€
