Filed 9/20/17 P. v. Mitchell CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
| THE PEOPLE,
Plaintiff and Respondent,
v.
MATTHEW RYAN MITCHELL,
Defendant and Appellant.
|
G053129
(Super. Ct. No. 13HF3345)
O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed.
Jean Ballantine for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant of felony sodomy of a minor (Pen. Code, § 286, subd. (b)(1); count 1),[1] felony oral copulation of a minor (§ 288a, subd. (b)(1); count 2); and felony distribution of harmful matter to a minor (§ 288.2, subd. (a)(1); count 3). The jury was hung on count 4, contacting a child with the intent to commit specified sex crimes (§ 288.3, subd. (a)), and the court dismissed it on the People’s motion. The jury found defendant guilty on count 5, contacting a minor with the intent to engage in lewd conduct (§ 288.4, subd. (b)), but the court granted defendant’s motion for a new trial on that count on the ground of insufficient evidence and subsequently dismissed it. The court sentenced defendant to the low term of two years on count 3, a consecutive eight months (1/3 of the midterm) on count 1, and a concurrent 16 months on count 2, for a total of two years, eight months in state prison.
Defendant’s sole argument on appeal is that the prosecutor failed to turn over information that, shortly after defendant was arrested, the victim’s mother asked the prosecutor about obtaining a U-Visa certification for cooperating with the investigation. Defendant argues this evidence could have been used to impeach the testimony of both victim and his mother. We conclude the prosecutor should have turned this information over, but the failure to do so was not prejudicial, and thus there was no Brady violation. (Brady v. Maryland (1963) 373 U.S. 83 (Brady).)
FACTS
In August 2013, minor registered on multiple adult dating websites catering to gay men. He was a 16-year-old junior in high school at the time, though he certified, in his applications to the various Web sites, that he was 18 years old. Defendant reached out to minor on one of the Web sites, and minor responded, finding defendant attractive. The two struck up a conversation.
Eventually, defendant suggested that he and minor get together sometime, which prompted minor to start a conversation about his age. Minor asked defendant’s age. Defendant said he was 26 years old. Minor said, “How young would you go as a 26-year-old gay man?” Defendant responded, “Age isn’t anything about – I think about really, it wouldn’t matter I guess.” Minor pushed the issue further: “17-year-old wouldn’t matter[?] I don’t like to [lie to] people about my age.” Defendant responded, “I’m saying we should hang out and see from there. I don’t care about age if it’s not a factor, you know.” Minor replied, “Yeah, I understand it’s just that some people are really serious about the whole underage thing.” Defendant responded, “Cause all they probably want is the illegal part of ya” and “It’s not against the law to hang out last time I checked.” At a later point in the conversation as defendant was complimenting minor on his appearance, defendant stated, “I wish I had this type of place to meet guys when I was 17.” The two exchanged phone numbers.
Shortly afterwards, minor received a message that defendant’s private pictures had been unlocked to him. Minor understood this to mean that he could now access defendant’s private nude photos. Minor accessed the photos, which were, in fact, sexually explicit, nude photos of defendant.
Over the ensuing days, the two texted each other fairly regularly. The conversations were sexual and flirtatious in nature. Each time, defendant would ask minor, in one form or another, whether minor was horny. Minor testified that he mentioned to defendant that he was a junior in high school.
Approximately one month after their initial conversation, the two had a conversation about meeting in person. Minor was spending the night at a friend’s house. The two struck up a text conversation and minor sent defendant a suggestive photograph. Later that evening the two had their first Skype video call. During that call, they made plans for defendant to visit minor that night. Afterwards, minor texted defendant, “So what do you want to do if you come to her [the friend’s] house or if we just want to chill in your car?” Defendant responded, “I’d be cool with just chillin, . . . but I probably be thinking about something,” which minor understood to be a sexual reference. Later in the conversation defendant offered to teach minor how to fake his phone’s GPS location to evade his mother’s monitoring.
Defendant arrived at minor’s friend’s house late at night. The two took a walk. Defendant brought marijuana and Xanax. Minor smoked the marijuana but decided not to consume the Xanax. After the two spent about an hour together, they walked back to defendant’s car. They drove to a nearby construction site and parked the car. After 10 minutes or so, minor mentioned he was really high. Defendant replied, “s this when I can take advantage of you?” Defendant then leaned over and kissed minor. The two moved to the backseat. Defendant pulled minor’s pants down and performed oral sex on minor for about 10 minutes. Defendant then inserted his penis into minor’s anus and the two had anal sex for approximately 30 minutes. Afterwards, minor was hurting so he pulled up his pants and went back to his friend’s house.
The next day minor took the Xanax defendant had given him. The two continued texting and agreed they should hang out again. At some point after their sexual encounter, the two made plans for defendant to pick minor up from school, though they never carried out the plan.
Sometime later minor decided he wanted defendant to meet his mother “because [he] thought it was weird that [defendant] was so old and she didn’t know that.” Minor wanted to tell his mother so that he and defendant would not “have to be sneaky about it.”
Defendant met minor’s mother on September 30, 2013, a little over one month after minor and defendant first met. Mother told defendant that minor was, in fact, 16 years old. Before that point, minor had never told defendant when he would be turning 18 years old. When defendant and minor went out for coffee after the meeting, defendant expressed surprise at minor’s true age. After the meeting, mother took minor’s phone away. Their argument got so heated that minor called the police.
A day or two after the meeting with mother, minor had a Facebook conversation with defendant, warning defendant that his mother might call the police. At that point defendant began denying that anything had happened between them.
The police were called shortly after that (presumably by mother). In the initial interview, in which mother was present, minor did not mention his drug use to the police officer. But minor otherwise relayed what had happened to the officer.
The defense (not the prosecution) called mother to the stand. The initial police report apparently relayed mother’s account of the meeting with defendant in which, according to mother, she told defendant minor’s true age and defendant responded, “This is a problem.” Mother did not remember saying that to the officer. However, in an interview with the district attorney’s investigator, she was given an opportunity to correct any misstatements in the police report, and she did not correct that portion of it.
Approximately two months after the verdict, the prosecutor sent defense counsel an e-mail stating, “[Mother] is requesting a U-Visa.” A follow-up investigation revealed mother had contacted the district attorney’s office on November 12, 2013 (a little over one month after mother initially contacted the police), and asked for information regarding a U-Visa. Mother had been told the office does not process U-Visa paperwork until after a case has concluded, and that they could direct mother to the appropriate person once the case was complete. No promises were made to mother regarding a U-Visa in connection with her testimony. Defendant moved for a new trial on the ground that the prosecutor’s failure to turn this information over before trial was a [i]Brady violation. The court denied the motion (with the exception of count 5, noted above, and that was on a different ground).
DISCUSSION
Defendant raises a single issue on appeal: whether the prosecutor’s failure to disclose mother’s initial U-Visa inquiry constituted a Brady violation, warranting a new trial. “Conclusions of law or of mixed questions of law and fact, such as the elements of a Brady claim [citation], are subject to independent review.” (People v. Salazar (2005) 35 Cal.4th 1031, 1042.)
“There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” (Strickler v. Greene (1999) 527 U.S. 263, 281-282.) “Impeachment evidence . . . falls within the Brady rule.” (United States v. Bagley (1985) 473 U.S. 667, 676.) However, “there is never a real ‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.” (Strickler v. Greene (1999) 527 U.S. 263, 281.)
The U-Visa program provides temporary relief from deportation for victims of certain crimes who are “helpful to a [law enforcement] agency in the investigation or prosecution of the qualifying criminal activity . . . .” (8 C.F.R. § 214.14(b)(3) (2015).) In some instances where the victim is under 18 years old, a parent qualifies as the victim for purposes of obtaining a U-Visa. (Id. at (a)(14)(i).) To obtain a U-Visa, the applicant must submit a form signed by a law enforcement agency certifying that the applicant was helpful in an investigation or prosecution. (Id. at (c)(2)(i).) “U visas generally entitle their holders and their family members to four years of nonimmigrant status; holders may also apply for lawful permanent residence (a ‘green card’) after three years.” (Cazorla v. Koch Foods of Mississippi, L.L.C. (5th Cir. 2016) 838 F.3d 540, 545.)
We agree with defendant that mother’s U-Visa inquiry was Brady material that should have been disclosed. Mother’s U-Visa request gave her an incentive to provide favorable testimony to the prosecution; and not only her, but, more importantly, minor also. Minor had an incentive to provide favorable testimony to the prosecution to help his mother attain the valuable benefit of legal residency. Although the prosecutor did not call mother to the stand (defendant called her), minor was the prosecution’s principal witness.
While there appears to be no California cases on point, defendant cites three out-of-state cases that conclude a U-Visa request is proper impeachment material. In finding a trial court erroneously excluded a witness’s U-Visa application as impeachment evidence, the court in Romero-Perez v. Commonwealth (K.Y.Ct.App. 2016) 492 S.W.3d 902, 906, stated, “One can readily see how the U–Visa program’s requirement of ‘helpfulness’ and ‘assistance’ by the victim to the prosecution could create an incentive to victims hoping to have their U–Visa’s granted. Even if the victim did not outright fabricate the allegations against the defendant, the structure of the program could cause a victim to embellish her testimony in the hopes of being as ‘helpful’ as possible to the prosecution.”
Even more closely on point is State v. Del Real-Galvez (Or.Ct.App. 2015) 346 P.3d 1289, where the issue was whether the minor victim of a sexual assault could be impeached with her mother’s U-Visa application stemming from cooperation in the sexual assault investigation. The trial court excluded the evidence, but the Oregon Court of Appeals reversed. Describing the bar for admitting impeachment evidence as low, the court noted “defendant was not required to show that [minor] knew or believed that her mother would submit a U visa application if [minor] accused defendant of sexual abuse.” (Id. at p. 1293.) The court concluded it did not matter that minor was the witness rather than mother, the applicant: “The state’s argument is unavailing because it artificially narrows the concept of bias. As we have explained, ‘[b]ias may arise in a variety of ways’ and ‘may be evidenced by personal, family, romantic, sexual, or business relationships[.]’ [Citation.] Thus, ‘[a] party may impeach a witness for bias through evidence of the witness’s relationship with another where the bias resulting from the relationship is a matter of reasonable inference rather than mere speculation.’ [Citation.] Because [minor’s] mother had applied for an opportunity to stay in the United States on the ground that her daughter had been sexually abused and coerced, a jury could reasonably infer that [minor], out of a desire to help her mother obtain a U visa, had a personal interest in testifying against defendant.” (Id. at p. 1294.)
Ultimately, however, we find no Brady violation here because the failure to disclose mother’s inquiry was not prejudicial. The main controverted issue in this case was whether defendant knew minor was, in fact, a minor. As defense counsel stated in closing argument, “And it comes down to this, do you have a reasonable doubt as to whether [defendant] knew [minor] was under the age of 18?” Defendant did not dispute that the sex acts occurred.
As to the main controverted issue, there was an elephant in the room: Defendant admitted, in writing, before the sex acts occurred, that minor was 17 and that sex acts would be illegal. This happened approximately one month before the sex acts. And there is no evidence in the record indicating defendant learned anything new in the intervening month. Indeed, in the prosecutor’s closing argument, she placed the greatest emphasis on the written exchange, particularly where defendant acknowledged the “illegal part of you.”
Defense counsel’s argument boiled down to inviting the jury to infer that in the many conversations between defendant and minor that were not in evidence, minor may have misled defendant as to his age. But that is pure speculation, and certainly no basis upon which to overturn a jury verdict. Minor testified to precisely the opposite; that he did not have any conversations about age after the initial text conversation until defendant met minor’s mother. Defendant did not testify, so there was nothing to contradict this account.
As much as the defense wanted to make this case about minor’s credibility, it was not. Defendant pointed to various lies minor told, but none cast any doubt on the written exchange between minor and defendant. The lies included: lying about his age on dating Web sites; lying to his mother about curfews, friends, and drug use; and lying to the police about his drug use and about who sent certain sexual images on his phone. However, the evidence showing defendant knew minor was underage did not depend on any uncorroborated testimony of minor. The case simply did not turn on minor’s credibility.
Moreover, there was already evidence in the record that minor was biased in favor of the prosecution. When defense counsel was cross-examining minor about the volume of text messages between minor and defendant that the prosecutor did not put in evidence, minor described the messages in evidence as the “important stuff” that “we need.” When asked who “we” is, minor responded, “My prosecutors. My lawyer,” referring to the prosecutor. Later he referred to the prosecutor as “my defender.” Adding the possibility of a U-Visa connection might have fleshed this theme out a bit, but it would not have moved the ball much further. And, for the reasons stated above, it would not have changed the fact that defendant admitted, in writing, that minor was underage and sex would be illegal. Accordingly, there was no Brady violation.
DISPOSITION
The judgment is affirmed.
IKOLA, J.
WE CONCUR:
O’LEARY, P. J.
MOORE, J.
[1] All statutory references are to the Penal Code.
