P. v. Barriere
Filed 7/19/12 P. v. Barriere CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JESUS
LEONARDO BARRIERE,
Defendant and Appellant.
A128614
(Contra Costa County
Super. Ct. No.
050702886)
Jesus
Leonardo Barriere (appellant) was convicted, following a jury trial, of
11 counts of forcible lewd and lascivious acts upon a child, one count of
lewd acts upon a child under age 14, two counts of oral copulation of a minor
under age 14, and one count of soliciting a minor to use a controlled
substance. On appeal, appellant contends
(1) the trial court improperly denied his Wheeler/Batson
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motion challenging the prosecutor’s peremptory challenge of a prospective
juror; (2) the court abused its discretion and violated appellant’s
evidence of prior sexual offenses, pursuant to Evidence Code section 1108
(3) the instruction regarding appellant’s prior sexual offenses, pursuant
to CALCRIM No. 1191, violated his rights to due process and proof beyond a
reasonable doubt; (4) the court improperly pressured the jury to reach a
verdict when it was deadlocked; (5) the court erred in denying appellant’s
new trial motion based on the jury’s receipt of an unredacted
(6) the six-year determinate sentence and the Penal Code
section 12022.3 enhancement for count six must be stricken; (7) the
restitution fine must be reduced to $10,000; and (8) he is entitled to
additional presentence credits. We shall
remand the matter for resentencing on count six, correction of the improper
restitution fine imposed, and recalculation of appellant’s presentence
credits. We shall otherwise affirm the
judgment.
PROCEDURAL BACKGROUND
On
May 16, 2007, appellant was charged by first amended information with
11 counts of forcible lewd and lascivious acts upon a child (Pen. Code,
§ 288, subd. (b)(1)-counts one to ten and count twelve); one count of
soliciting a minor to use a controlled substance (Health & Saf. Code,
§ 11353-count eleven); one count of lewd acts upon a child under age 14
(Pen. Code, § 288, subd. (a)-count thirteen); and two counts of oral
copulation of a minor under age 14 (Pen. Code, § 288a,
subd. (c)(1)-counts fourteen and fifteen).
The information alleged as to count six that appellant had personally
used a deadly and dangerous weapon, a knife, in the commission of the offense
(Pen. Code, §§ 667.61, subds. (a), (e), 12022.3,
subd. (a)). The information further
alleged as to counts ten and twelve that appellant personally inflicted great
bodily injury (Pen. Code, §§ 667.61, subds. (a), (e), 12022.8), and
as to count ten that appellant administered a controlled substance by force
(Pen. Code, §§ 667.61, subds. (a), (e), 12022.75).
On
December 3, 2009, a jury found appellant guilty of the 15 charged offenses and
found true the allegation that he personally used a deadly and dangerous weapon
in the commission of count six. The jury
failed to make findings on the allegations that appellant personally inflicted
great bodily injury in counts ten and twelve or that he administered a
controlled substance by force in count ten.
On
April 30, 2010, the trial court sentenced appellant to a total term of 99 years
to life in state prison.
On
May 10, 2010, appellant filed a notice of
appeal.
“Jane
Doe” (Jane), who was 17 years old at the time of trial, testified that she had
lived all her life with her mother, R.S.
Appellant was her father. Her
parents had been divorced as long as she could remember. After they divorced, her father married
Patricia P. and had three children with her before they eventually separated. While married to Patricia P., appellant also
dated Evelyn G., with whom he had a son, “John Doe” (John). Later, appellant had a child with
Evelyn H., whom he had met when Jane was 12.
Appellant
was a long distance truck driver. He
drove a big truck that had a bed right behind the driver and passenger’s
seats. When Jane was younger, she saw
her father about every two weeks, on the weekends. Most of the time when they had visitation,
appellant took her with him on trips for his job. Occasionally, other people came with them on
trips, but mostly it was just Jane and appellant. When she was between the ages of seven and
12, she also occasionally went to appellant’s house in Richmond, where he lived
with Patricia P. For visitation,
appellant normally picked Jane up on a Saturday and brought her home on a
Sunday.
Jane
turned seven in January 1999. In the
first half of that year, appellant began doing things to her that made her
uncomfortable. The first time, appellant
pulled his truck over to the side of the road, took her into the back, lay her
down on the bed, and lay down on top of her.
He started touching her, rubbing her vagina with his hand, first over
her clothes and then under them on her skin.
While doing this, he told Jane that her body looked like her
mother’s. He also kissed her on her
mouth. This first incident lasted
approximately 15 to 20 minutes. After
appellant stopped touching her, he said not to tell her mother or she would get
taken away and sent to a foster home.
Jane believed him and did not tell her mother what had happened because
she was scared.
During
the first half of the year when Jane was seven, appellant touched her in this
way about 20 times, during almost all of their visitations and sometimes more
than once per visit. He also put his
finger inside her vagina about 10 times.
He continued to tell her she had her mother’s body and to threaten that
she would be sent to a foster home if she told her mother, and would not see
her family again. Jane would tell him
she wanted to go home, but he would say he would not take her home until she let
him touch her.
During
the second half of the year that she was seven, Jane continued to see her
father every other weekend. Some visits
were in appellant’s truck and some were at the house he lived in with Patricia
P. in Richmond. She did not remember him
ever touching her at that house.
Appellant continued to touch her in the back of his truck, however, in
the same way he had touched her earlier in the year, about 20 more times. During that later time period, he also began
to touch her vagina with his penis. He
would either take her clothes off or ask her to take them off, would take his
own clothes off, and would lie down on top of her. He would then rub the outside of her vagina
with his penis. It was not painful. Appellant touched Jane’s vagina with his
penis 20 to 25 times during the latter half of that year, while also kissing
her and touching her with his hand. Jane
never tried to run away, though she did try to turn away sometimes. He continued to tell her not to tell her
mother what he was doing or she would be sent away from her family to a foster
home; he also threatened that her mother could get deported.
In
2000, shortly after Jane turned eight, her grandmother took her to Mexico for
her first communion. She was away for
several weeks. When she returned, she
continued visiting her father every two weeks on the weekend, mostly in his
truck. He continued touching her in the
same way as the year before, sometimes more than once during a visit.
Then,
during the spring after Jane turned eight, appellant took her to a hotel while
they were traveling in the truck. It was
daytime and, once inside the hotel room, appellant took off her clothes and his
own clothes and lay her down on the bed on her back. He then got on top of her and stuck his penis
all the way inside her vagina. It was
painful and she started bleeding all over the bed. Jane said to stop and tried to squirm away,
but appellant slapped her on the inside of her thigh and continued with his
penis inside her for a long time while she cried. He eventually stopped. There was blood in the bed and Jane had
stomach pains and could barely walk.
About 20 minutes later, they left the hotel. Three or four hours later, when they were
back in the truck, appellant got on top of her again and stuck his penis inside
her again for about 15 or 20 minutes. It
hurt and she bled again a little bit.
Afterwards, appellant once again threatened her with a foster home and
her mother’s deportation. After
appellant took her home, Jane had a strong cramp in her stomach and her private
area was swollen, painful, and burning.
She did not tell anyone what had happened because she was still afraid.
After
that, appellant had sexual intercourse with Jane during almost every
visit. On one occasion in the spring of
2000, while appellant and Jane were in the back of the truck, he told her to
take off her clothes, and she said, “No.”
It was the first time she had directly said no to him. He got angry, and reached over and grabbed a
big knife that he kept in his truck. It
was about 11 or 12 inches long and one and a half or two inches thick and had a
cover on it. Appellant pointed the knife
at her and said, “Take off your clothes.”
She was crying and was so scared that he was going to hurt her that she
just did what he said. He put the knife
down and started rubbing her vagina; he also put his hand over her mouth while
she was crying. He then stuck his penis
inside her vagina.
During
the rest of the year that Jane was eight, the visitations continued, with
appellant having intercourse with her about 30 to 40 times, sometimes more than
once during a weekend visit. He also
touched her in the other ways he had done before. Other than try to squirm away, Jane never
fought back. She never told her mother
what was happening, although she would start crying hysterically when her
mother said appellant was going to pick her up.
She feared him and did not want to see him. She thought about running away when they were
at truck stops, but then she would think, “nobody is going to believe you. You know, I’m a little girl. I mean, I was just scared.”
In
2001, when Jane was nine, she continued to have the same type of visitations
with appellant, mostly in the truck but also at the house appellant shared with
Patricia P. He did not touch her
inappropriately at the house, but he always did so in the truck. He touched her vagina and had intercourse
with her 40 to 50 times that year. He
also put his tongue in her vagina for the first time when she was nine. After that, he touched her in this way very
rarely.
During
the year Jane was nine, appellant was still seeing his girlfriend, Evelyn
G. She lived in an apartment in Richmond
with her and appellant’s son, John Doe, who was probably six years old at that
time. Jane went to the apartment with
appellant every once in a while. Once
that year, Jane was at the apartment with appellant and John during the day
while Evelyn G. was at work. Jane was
sitting in the living room when appellant told her to go into the bedroom. Appellant followed her into the bedroom,
closed the door, and covered the window with a blanket. He then started touching Jane, who was
sitting on the bed. He took off both of
their clothes, got on top of her, and had intercourse with her on the bed for
20 to 25 minutes. While he was doing
this, John tried to open the door to come into the room. Appellant went to the door and told him not
to come in. After appellant finished
having intercourse with Jane, he told her to go take a shower. After the shower, she put on one of Evelyn
G.’s nightgowns. Her father eventually
took her home.
In
2002, when Jane was 10, she continued to have visits with appellant
approximately every other week. Most of
the visits took place in the truck during road trips in which appellant
continued to molest her as before, often more than once per visit. That year, he had intercourse with her about
40 to 50 times and orally copulated her a couple of times. She sometimes tried to squirm away, but she
had nowhere to run to and no way to defend herself. She thought, “I might as well let him do what
he was doing so I can leave [for] home faster.”
During that period, she once told a cousin that “my father does things
to me that are not like father/daughter things.” But when her cousin tried to ask about it,
Jane changed the subject; she did not want to tell her any more.
The
visits and touchings continued for the first half of the year after Jane
turned 11. But she stopped seeing
appellant for a period of about six months beginning in mid-2003. She still did not tell her mother what
appellant had been doing to her. She was
just happy he was not coming around anymore and thought she would put it all
behind her.
Then,
in 2004, when Jane was about to turn 12, appellant came to her home with his
new girlfriend, Evelyn H., who was about 15 years old, and their new baby. After that, appellant came to visit often
with Evelyn H. and Jane began to spend a lot of time with them. She did not go on long road trips with appellant
during this period.
At
that time, appellant was no longer living with Patricia P. He lived with roommates in Richmond and, one
day, he brought Jane to his house, took her to his bedroom, and had intercourse
with her. Another time, near
Thanksgiving or Christmas of 2004, Jane was at a nighttime family gathering
with appellant, Evelyn H., and Evelyn H.’s family. When Jane left the gathering with appellant,
instead of taking her home, he took her in his car to a hotel in El Cerrito. It
was a “Super 8,” close to the freeway.
and told Jane to wait in the car. She
did not try to run away because she “still had a lot of fear.” She was afraid no one would believe her or
that appellant might kill her. When appellant
came back to the car, he told her to go upstairs with him. They went to a room and Jane sat down on the
bed. Appellant pulled out his wallet and
took out a tiny Ziploc bag of white powder.
Jane figured it was drugs.
Appellant used two credit cards to smash the powder and make two or
three lines of it on the table. He
rolled up a dollar bill and used it to sniff some of the powder.
After
she sniffed the powder, appellant told Jane to take off her clothes, which she
did. He took off his clothes and they
lay down on the bed. He got on top of
her and she remembered him trying to put his penis inside her, but then did not
remember anything else until she woke up.
When she woke up, she was in the bed and her father was next to
her. Her eyes were red and she had a red
mark on her neck. They left the hotel
and went to Jack in the Box. Appellant
bought food, but she felt really sick and nauseated. He then took her home.
In
around January 2005, after Jane had turned 13, appellant picked her up in his
truck, supposedly to take her to a party.
She was upset about going out with him and had told her mother that she
did not want to go, but her mother said appellant was already on his way. Instead of going to a party, appellant
started driving out of the area, toward Modesto. She was upset. Almost an hour after they left her home, he
pulled over to get gas. She knew by then
that there was no party. While appellant
was out of the truck paying for gas, she got so angry that she kicked the
windshield with her foot and cracked it.
She was scared of what the consequences would be. When appellant got back to the truck, he was
furious and yelled loudly at her. He also
took Jane’s cell phone away. He then
told her to lie down on the bed in the back of the truck and touched her sexually. He eventually took her home.
The
touchings after appellant came back into Jane’s life—when she was 12 and
13—were not as frequent as when she was younger. The last time appellant touched Jane was on
May 4, 2005, when she was 13. She was on
a visit with him and he was driving them in a car to Evelyn H.’s house. They were on the freeway and appellant
reached over and tried to touch her between her legs. Jane told him to get his hands off of her or
she was “was gonna tell.” Appellant
stopped touching her and acted like nothing had happened. Within a week of that incident, Jane finally
told her mother about the molestation.
When
Jane was little, she was afraid of appellant and “used to cry a lot.” When she was 12 and 13, she became suicidal. “It was like all those years and never telling
nobody. It was like heavy on me. So I wanted to kill myself. And just, you know, I thought that was like
the only thing that would ever stop it, killing myself.” She had problems in school because “I had a
lot of hate inside of me and that made me, you know, be in a way
rebellious.” She was also very
rebellious with her mother. She had
friends, but had difficulty relating like a normal 13-year-old. She liked to “party,” which was her way of
getting away from all the problems she had.
During the years after appellant started having intercourse with her,
Jane also started having physical
problems, including urinary tract infections. She did not know if appellant ever wore a
condom during intercourse or if anything every came out of his penis.
The
day in May 2005 that Jane told her mother about the
party with some friends, and her mother would not take her there. Jane then called her father and asked him to
give her a ride. He said no, because he
was going to go “clubbing” with Evelyn H. that night. Jane and her mother then got into an
argument. Jane ran to her room and
“started thinking about everything” and started crying. She felt like there was no escape. “I couldn’t take anymore the arguments with
my mom, the hatred I had, and, you know, the hate I had towards him, everything
that had happened to me. I just—I just
wanted to die.” Regarding why she would
call her father for a ride, Jane testified that the molestation had “slowed
down” by then and, at 13, she was protecting herself more. Also, by then, she had gotten numb; “it’s
like if I was dead inside. You know, he
used me up. I was wrecked, you
know. I didn’t have feelings at that
point anymore.”
Jane’s
mother came into her bedroom and said she needed to know what was going on with
her, why she was being so rebellious. At
that point, Jane told her mother everything.
She said the reason she was acting that way was “because your ex-husband
that is my father raped me all these years.
And I hate him and I had hate towards you because of that. And, you know I hated everything. I hated everybody.” Jane was “yelling hysterically.” She told her mother about the abuse that day
because, with all the rage and hate she had inside, she just exploded.
Jane’s
mother wanted to go to the police station right away, but, at first, Jane did
not want to go. She felt afraid and
wanted to “just leave it alone.” But her
mother insisted. Jane talked to several
police officers about what had happened.
Jane also noticed what looked like pimples on her “private part” and her
mother took her to the doctor right away.
The doctor examined her, did some tests, and gave her a diagnosis.
R.
S., who was 34 years old at the time of trial, testified that she is the mother
of 17-year-old Jane Doe. R. moved to the
United States in 1991 and met appellant just after she turned 15. He was over 18 years old at the time and they
soon became boyfriend and girlfriend.
She lived in Hayward and, one day, appellant took her to his sister’s
house in Vallejo. Appellant called R.’s
father and said that if he did not consent to appellant’s marrying R., he would
take her to Alaska and her father would never see her again. Appellant kept R. in Vallejo for several days
and began having intercourse with her.
Five or six weeks later, she found out she was pregnant. They then got married and lived with her
parents.
Appellant
was verbally and physically abusive toward her when she did not want to have
sex. Just after she gave birth to Jane,
he kicked her in the stomach. He also
used his hands to hurt her and pulled her hair.
After Jane was born, there were times when R. did not want to have sex
with him and he repeatedly forced her to do so.
About a year and a half after they married, R. applied for a restraining
order against appellant. She had
previously told him she did not want to be with him anymore, but he would get
violent and threaten her.
When
she filed for a restraining order, R. also filed for a divorce. They were divorced in May 1994, when Jane was
about three years old. Appellant was
granted weekend visitation with Jane, but initially came to see her every two
or three months. When Jane was about
four years old, after appellant married Patricia P. and had another child, his
visits became more regular. Appellant
worked as a truck driver; R. did not know he took Jane for trips in his truck.
When
Jane was about seven, appellant started visiting her every weekend or every two
weeks. From the time Jane was six or
seven until she was 11, he would pick her up either in a car or in a big
semi-type truck without a container.
Patricia P. no longer came with appellant when he picked up or
dropped off Jane, as she had earlier.
Most of the time before visits, Jane would cry and say she did not want
to go with her father. She also became
angry after visits and locked herself in her room. As Jane got older, she had behavioral
problems at home and at school. Jane
also started having frequent problems with urination after visits with
appellant. She said she felt a burning
and her stomach hurt. She also felt
nauseated a lot of the time. Between the
ages of six and 14, R. took Jane to the doctor for these problems more than
30 times. R. also saw a brownish
discharge in Jane’s underwear about five times.
On
the day in 2005 that Jane told R. about the abuse, Jane was furious with her
because she did not want Jane to go to a party.
Jane locked herself in her room; eventually, R. went and knocked on her
door and Jane came out. They argued some
more and then Jane returned to her room, slammed the door and yelled that R.
did not know what he did to her. R. went
into Jane’s bedroom and Jane, who was yelling and crying, said she was going to
kill herself and that she hated R. She
then said that appellant was abusing her and had threatened her. She did not give specific details. This was the first time Jane told R. what had
happened. R. immediately took Jane to
the police to give a report, and then to her doctor.
John
Doe, who was 13 years old at the time of trial, is the son of appellant and
Evelyn G. Jane is his half-sister. Until he was in third grade, he lived with
his mother in an apartment in Richmond.
Appellant visited a couple of times a week. Evelyn G. worked in the evenings. John saw Jane once or twice while he lived in
Richmond.
One
day while Evelyn G. was at work, appellant brought Jane to the apartment. John was four, five, or six years old. Appellant told John to watch television, and
then went into the bedroom with Jane and closed the door. At one point, John tried to go into the
bedroom because he was bored, but the door was locked. He went outside to look in through the
bedroom window, but it was covered with a blanket. He then watched more television and fell
asleep for a while. When Jane and
appellant came out of the bedroom, Jane was “kind of pale.” She was also wearing John’s mother’s
nightgown. Appellant told her to go take
a shower, which she did. John went into
the bedroom and lay down on the bed. It
felt wet in spots. After her shower,
Jane was still wearing the nightgown and she seemed “a little scared.” When Evelyn G. got home, appellant and Jane
left.
In
May 2006, after appellant was arrested, John talked to a woman about what had
happened that day in the apartment. Near
the end of the interview, the woman asked John if he had ever been touched inappropriately
by appellant. He did not tell her the
truth because he was embarrassed and was afraid of appellant. In fact, when John was about seven and still
living in the apartment in Richmond, appellant made him watch videos of people
having sex while Evelyn G. was at work.
The videos were kept in a box high up in a kitchen cupboard and they
watched them on the living room television.
Appellant put blankets over the window beforehand. Watching the movies made John uncomfortable,
but he kept watching because he was afraid appellant would hit him if he tried
to leave the room. Appellant said he
would hit John if he told his mom. The
second time they watched the movies, appellant told John “he wanted [him] to
copy the movie.” John put his mouth on
appellant’s penis. Appellant said to
“act like it was a lollipop.” John did
what appellant said because he was afraid appellant would hit him if he
refused.
Appellant
showed John pornographic movies on a few other occasions too. Appellant also continued to make John do
things that made him uncomfortable, sometimes in the living room and sometimes
in the bedroom. While they lived in
Richmond, appellant had John put his mouth on appellant’s penis between five
and ten times. Appellant also put his
penis in John’s anus by having John lie facedown with his backside in the
air. It hurt when appellant did that and
for an hour or two afterwards. Appellant
penetrated John 10 or more times while John lived in Richmond. John never told his mother what appellant was
doing because appellant had threatened to hurt him if he told anybody. After appellant started molesting him, John
noticed bumps on his penis and went to a doctor.
John
and his mother moved to another city when John was in the third grade. Although he saw appellant occasionally after
the move, appellant did not touch him sexually.
This was because Evelyn G.’s sister and her children came to live with
them and there was always someone else there when appellant visited.
As
John got older, he began to feel confused about his sexuality, unsure whether
he liked girls or boys. He went on the
computer to look for photos or videos that depicted what appellant had done to
him, and he also wrote in his diary. A
couple of years before trial, John’s mother came home while he was looking at
images on the computer. She had also
read things he had written in his diary and she confronted him about who had
molested him. John eventually admitted
that it was appellant. He went back to
the Interview Center and told the woman who had interviewed him before about
what had happened with appellant. John
hated appellant for what he had done to him.
Dr.
James Carpenter, a pediatrician with Contra Costa County Health Services,
testified as an expert in the areas of child sexual abuse, sexual assault
examinations, and interpretation of the results of those examinations. It is “the usual” for a child sexual abuse
victim not to report that abuse. Most
sexual abuse is never divulged and remains a secret. If it is revealed, it is “usually very
delayed after the original onset.” When
there is a delay in the report of sexual abuse, often the tissues have had a
chance to heal and, where mucosal tissue is involved, as with the female vaginal
area, healing is rapid and often there is no scar formation. The single most common physical symptom for a
child who has been victimized is recurrent abdominal discomfort, sometimes with
nausea. Burning with urination could be
due to sexual abuse, or from other causes.
Early or precocious puberty most often is associated with obesity, but
can also result from sexual assault.
Most pediatricians and family doctors do not have specialized training
in child sexual abuse.
Dr.
Carpenter further testified that genital herpes is a viral infection, usually
of the genitals, which is transmitted sexually by genital-to-genital
contact. It can also be transmitted from
a male’s penis to another male’s anus.
An infected woman can also transmit herpes to her child during
birth. But that is a very different and
severe infection, which does not involve blisters on the genitals and becomes
evident within a few weeks after birth.
Sexually transmitted diseases have rarely been transferred without
direct physical contact. Herpes
transmission requires cell-to-cell contact so it is even “less likely to be
able to ever . . . be transmitted by an object.” He was not sure whether such transmission had
ever been documented for herpes. An
infected person can have periods when the infection is inactive and it would be
possible for someone to have genital-to-genital contact with such a person and
not develop the virus.
In
August 2005, at the request of the Richmond Police Department, Dr. Carpenter
reviewed the medical records of Jane Doe, but did not perform a non-acute
sexual assault examination on her.
Because she was sexually mature and the last assault would have occurred
months earlier, the likelihood of finding any evidence was quite low. He did, however, recommend that Jane get
follow-up care for her herpes.
Dr.
Carpenter’s review of Jane’s medical records indicated that Jane had multiple
health problems associated with recurring sexual abuse. These problems included multiple episodes of
pain with urination without urinary tract infections;
multiple episodes of abdominal pain; at least one episode where she had lesions
on her labia that at the time were
suspected to be yeast; and early development of pubertal changes, including
breasts and pubic hair. Jane’s early
puberty, which began when she was seven and a half, was suspected at the time
to be related to her obesity. In
December 2000, Jane saw her doctor for itching and bumps on the vaginal
area. This could have been an early
herpes infection, but was diagnosed as a yeast infection. She also was seen for “spotting” in February
2001. In August 2001, she was seen for
pain with urination, vaginal itching, and bumps on the vaginal area, which
could have indicated genital herpes.
There was also a report of two to three incidents of bloody discharge
“like old blood.” Throughout these
years, from ages seven to ten, the most common reason for Jane’s doctor visits
was for pain with urination.
A
report of sexual molestation first appeared in Jane’s chart on May 16, 2005, at
which time she was tested for a number of sexually transmitted diseases. She tested positive for genital herpes—herpes
simplex 2—and the test showed she had had the herpes virus “for a period of
time.” The test results in conjunction
with Jane’s medical history were consistent with a child who has been sexually
assaulted.
Dr.
Carpenter also reviewed the medical records for John Doe. In March 2001, when John was four years old,
he saw a doctor for inflammation of the penis and pain during urination. It appeared that the doctor was also
concerned that John had genital herpes.
On May 11, 2006, John was tested for several sexually transmitted
diseases, and tested positive for herpes simplex 2. Dr. Carpenter reviewed the
G., which showed that she tested positive for herpes simplex 2 on May 24, 2006. Evelyn H., who was 20 years old at
the time of trial, testified that she met appellant when she was 13, in
approximately 2002. She was a runaway
and met him at a friend’s house. She
told him she was 13, and appellant said he was 27. She did not learn he was actually 31 until
about a month later. She went with
appellant to a Super 8 motel in Richmond, where appellant got a room. On the way there, appellant offered her two
or three lines of either cocaine or crystal methamphetamine—she did not recall
which—and showed her how to snort the powder using a dollar bill. She then snorted it. In the motel room, appellant gave her more
drugs, which she snorted, and they had intercourse.
After
that first night, Evelyn H. “pretty much stayed with” appellant, either at the
motel or on trips in his truck, from June through September 2002. They continued to snort drugs and have sexual
intercourse together during that time period.
In September 2002, Evelyn H. decided to go back home to her mother’s
house, but she and appellant continued to go to the same motel occasionally to
have sex. Their relationship continued
in 2003, when she was 14, and they continued to go to the motel to have
sex. She then found out she was pregnant
and gave birth to her and appellant’s son the day after she turned 15, in
February 2004.
Evelyn
H. met Jane Doe in 2004, shortly after she gave birth to her son. She saw Jane approximately every two
weeks. In May 2005, at about the time
Jane made allegations against appellant, Evelyn H. and appellant moved in
together. He was still married to
Patricia at that time, but they were separated.
Evelyn H. continued to live with appellant until he was arrested in
April 2006. Once they started living
together, appellant became more controlling and jealous. He would sometimes get angry and become
violent, pulling her hair and slapping her.
They sometimes argued about sex.
If she did not want to have sex, “he just couldn’t take no for an
answer.” He would get violent and push
her around until she felt that having sex “was my only way out.” He used “mental” force to have sex with her
by threatening to hit her or pulling out a big knife he kept in his closet and
threatening her with that. He said he
would cut her throat. He sometimes
pulled her hair or pushed her onto the bed or against the wall. One time he pulled her legs open “really
hard” when she said she did not want to have intercourse with him. She never told her family what was happening
with appellant because she was ashamed.
Evelyn
G., who was 33 years old at the time of trial, testified that she had met
appellant when she was 17 years old and had had sexual relations with him
within a few weeks of that first meeting, while she was still 17. He was married to R. at that time, and also
had a girlfriend, Patricia P. He later
married Patricia P. Evelyn G. continued
to have a sexual relationship with appellant from ages 17 to 30; she was his
mistress.
Evelyn
G. became pregnant when she was 19, and gave birth to her and appellant’s son,
John Doe. She and John lived in Richmond
until he was in third grade. Appellant
used to come and visit them at their apartment in Richmond; he also stayed overnight
at times and once stayed there for three months. Jane Doe visited the apartment on
occasion. Evelyn G. often left John home
with appellant when she had to work, and she could recall a couple of times
when she left both Jane and John at the apartment when she went to work. Once, she got home from work and saw Jane
wearing one of her nightgowns and also saw that Jane’s hair was wet like she
had recently bathed. Evelyn G. was
alarmed because she did not understand why Jane would be wearing her clothes
and why she had taken a shower at Evelyn G.’s home.
Evelyn
G. testified that she had kept adult movies on a high shelf in a kitchen
cupboard in her apartment in Richmond.
She sometimes watched the movies with appellant. When Evelyn G. was younger, she noticed
little clusters of bumps on appellant’s penis.
Appellant told her they were heat blisters.
Just
before John Doe turned five, he had problems where his penis would become
enlarged and inflamed. Evelyn G. took
him to the doctor, who gave her a diagnosis, but did not explain how John had
gotten the condition. After appellant
was arrested, she got herself and John tested for that condition.
After
appellant was arrested, Evelyn G. asked John if he had been molested. He initially denied it. She found his diary, in which he had written
something about being addicted to porn, which concerned her. There was also mention of a sexual confusion
between girls and boys. She then checked
their computer and found images of forced male sex and male incest. That night, she asked John if he had been
molested and he disclosed that appellant had molested him. The next morning, she contacted the District
Attorney’s office.
Looking
back, Evelyn G. recalled that John was scared to be left alone with appellant. Once, when appellant knocked on the door,
John begged her not to open the door and hid under the table. On cross-examination, Evelyn G. acknowledged
that she and appellant sometimes got angry at each other and argued, and that
appellant had a temper that he sometimes displayed in front of John.
Patricia
P. testified that she met appellant at a family party when she was 18 and still
in high school. They married in May 1994
and lived together for nine years. They
had three children together—Luis B., who was born in December 1994 and twins
who were born in 2000. While they were
married, appellant had a relationship with Evelyn G., with whom he had a
child, John Doe. Patricia and appellant
stopped living together in 2003, although they remained married.
Patricia
knew Jane Doe even before she and appellant married. She had a really good relationship with Jane,
who was “almost like a child” to her.
She spent every other weekend with Jane before appellant became a truck
driver. After that, appellant would
bring Jane to spend time with Patricia and Luis when he could. Appellant became a truck driver when Jane was
about seven. His work schedule was not
regular and he would be on the road anywhere from a couple of hours to
days. Once he was a truck driver,
Patricia never observed appellant take Jane for a truck trip. A man named Julio went on all long-haul trips
with appellant as a co-driver.
Patricia
never saw any inappropriate sexual behavior between Jane and appellant. Jane loved appellant and wanted to visit
their home all the time. When she got
older, Jane wanted to come live with appellant.
Patricia never saw any blisters on appellant’s penis and Patricia never
had any blisters or warts on her genitalia while she was married to appellant.
Patricia
testified on cross-examination that appellant was never violent with her and
never threatened her until just before they separated in 2003, at which time
they had an altercation. Appellant did
not want to give her a divorce and he said he had a machete in his car and she
“could regret it” if she left him. In
2003, Patricia obtained a restraining order against appellant. She initially testified that all of the
statements in the restraining order declaration were true, but then said she had
lied when she stated appellant had hit her.
But she acknowledged that she had told the truth when she stated that he
had broken her car’s windshield and part of the interior; that he threatened to
pull out a knife and take her older child, Luis, to another country; and that
if she did not do what he wanted, “ ‘he would pull out a knife, machete
type.’ ” He also threatened her
family members. Once, when she confronted
him about using drugs, he got upset and told her to “ ‘[s]hut up or
else.’ ” She denied the truth of
many statements that she had written in the restraining order request,
including that appellant “ ‘wanted to force me to have sex with
him,’ ” that “ ‘he would hit me with a beer bottle and make a scene
and wake up the baby,’ ” that “ ‘there’s always constant threats to
hit me,’ ” and that he grabbed her “real hard” by her hands and legs and
bruised her. She did acknowledge
previously telling the prosecutor that she had “a really hard life” with
appellant and that he was hardly ever there.
Luis
B., who was 14 years old at the time of appellant’s trial, testified that
appellant is his father. Appellant lived
with Luis, his siblings, and his mother until Luis was nine or ten. While appellant lived with them, Luis saw
John Doe once a week and saw Jane Doe several times a week. Jane wanted to come to their house; she would
call appellant and they would pick her up.
When Luis was eight or nine, he went on day trips in appellant’s truck
with John and Jane. After appellant
moved out, when Luis was about 11 and Jane was 13 or 14, he saw Jane every few
weeks. Appellant was dating
Evelyn H., and Luis saw Jane and appellant argue several times. Jane and Evelyn H. did not get along, and
Jane and appellant argued about him spending too much time with Evelyn H. and
not enough time with Jane and John. Jane
never acted like she was afraid of appellant and Luis never saw appellant do
anything inappropriate to Jane. Appellant
never did anything inappropriate to Luis.
Appellant,
who was 38 years old at the time of trial, testified that, a few months after
they had met, R. called him, said she did not want to be at her house anymore,
and asked him to take her to his sister’s house. R.’s father threatened to put appellant in
jail because she was a minor, but R. threatened to kill herself and her father
agreed to let them get married.
Appellant was 19 and she was 15 when they married. Their marriage ended after about nine months
when R. cheated on appellant with his friend.
Appellant acknowledged that he got very angry and violent with her
during their arguments.
Appellant
married Patricia P. in May 1994, and had three children with her, including
Luis. Appellant cheated on her with
Evelyn G., which caused problems in their marriage. He had a child with Evelyn G., John Doe, who
is one year younger than Luis. Appellant
also had a relationship with a woman named Suzie while he was married to
Patricia, which caused problems with Evelyn G.
Appellant acknowledged that he had threatened Patricia by saying, “[y]ou
regret it if you leave me” and threatening to take their son to El
Salvador. He was not home much during
their marriage. Appellant also
acknowledged that he sometimes became violent with Evelyn G. after she got
violent with him. But he testified that
he had never hit a woman.
Appellant
met Evelyn H. in 2002 at a party. She
told him she was 18 years old and he believed her. He took her to a Super 8 motel. He was planning to go to Utah, and she said
she wanted to come with him. He
therefore took her with him in his truck, and they started their
relationship. After they had been
together for several months, Evelyn H. told appellant her real age, 13,
and that she was a runaway. Appellant
was still living with Patricia when he met Evelyn H., but they split up and he
moved in with Evelyn H. after their son was born. They lived together for a couple of months,
until his arrest.
Appellant
initially had visits with Jane every other week. Once he became a truck driver, he picked her
up whenever he had a chance and brought her to his home with Patricia. Sometimes the whole family would go to the
mall, the movies, parks, or lakes. Jane
went on a few trips in the truck with appellant and other family members, but
never overnight. He also would sometimes
pick her up or drop her off in the truck on his way home from or to a job. When Luis was five or six, appellant became a
long-haul driver. When he was on
long-haul jobs, he could not arrange regular visits with Jane, where he would
pick her up on a Friday and return her home on a Sunday, because his schedule
was unpredictable. When he went on
interstate trucking jobs, he took a co-driver with him.
Jane
and Evelyn H. started having difficulties in their relationship around the time
appellant’s son with Evelyn H. was born.
Jane complained about appellant spending all of his time with Evelyn H.,
rather than with his kids, and always bringing her on visits. Jane also would call and ask appellant to
give her rides to friends’ houses. Jane
said she wanted to live with appellant.
At one point, R. said she wanted to send Jane to a boot camp because of
misbehavior at home and school.
Appellant initially sided with Jane, but ultimately agreed with R. Jane then got very angry with him. Appellant testified that he never touched
either Jane or John in a sexual way. He
also denied ever taking Jane to a motel and giving her drugs.
I. Denial
of Appellant’s Wheeler/Batson Motion
Appellant
contends the trial court violated his state and federal
A. Trial
Court Background
During
voir dire, prospective Juror No. 116 stated that she was “a site supervisor at
child care,” where she took care of 260 children and supervised 35
teachers. She said she did “have an
experience with report to CPS [Child Protective Services], but it’s just work,
no personal [sic].” In response to the prosecutor’s questioning,
prospective Juror No. 116 confirmed that since she worked in child development,
she was a mandated reporter with CPS.
She had made a report to CPS “a couple times,” including in a case of
suspected sexual molestation. A woman
whose daughter said her stepfather had touched her sexually had asked for
prospective Juror No. 116’s help and she had helped the woman “to do the
report.” She did not believe this
experience would affect her ability to be fair in this case “because that’s my
job and I understand.”
Prospective
Juror No. 116 told defense counsel that, in her eight or nine years of
experience at the child care center, she had worked with children between the
ages of two and 12 on a daily basis.
When counsel asked, “Are you open to the idea that children sometimes
make things up” she responded: “A lot
of times. They have a lot of
imagination.” When counsel then asked,
“Are you also open to the idea that children can be manipulated by . . .
[¶] . . . [¶] . . . others or adults”
she responded: “A lot of times
too.” She added: “We see a lot of case every day, yeah.” She also confirmed that she was open to the
idea that an allegation of child abuse may be false and agreed that there are
times when people are accused of things they did not do. Prospective Juror No. 116 did not think the
fact that she had helped the woman report an incident with the stepfather would
interfere with how she looked at the evidence in this case because she was not
very involved with that case, had not spoken to the child, and had only helped
the mother call CPS.
Finally,
prospective Juror No. 116 said that she speaks Spanish and that if a translator
made a mistake in translation that affected appellant, she would “have to be
honest.” She later affirmed, in response
to a question from the court, that she could follow the instruction that she
must abide by the interpreter’s interpretation “unless something were
drastically wrong,” in which case she could bring it to the attention of the
court.
The
prosecutor exercised a peremptory challenge against prospective Juror
No. 116.
Thereafter,
defense counsel put on the record that she had brought a “Wheeler/Batson Johnson[
name="_ftnref6" title="">[6]]
motion [sic]” regarding the
prosecutor’s challenge of prospective Juror No. 116. Counsel stated: “She was a—or is a child care worker in Marin
County [at a child care center]. She has
children and grandchildren. And she even
assisted somebody with a call to CPS who had a complaint about child abuse. I believe she would have—and she’s of
Hispanic [descent]. My client, Jesus
Barriere, is Hispanic.
“I
believe that she would have been a fine juror.
And I am concerned about the lack of diversity in this jury pool, this
panel. And the basis of my motion is
that I don’t believe there’s any legitimate reason for the excusal of
[prospective Juror No. 116] other than a race-based reason.”
The
court asked the prosecutor to address the prima
facie case first, and the prosecutor said:
“Okay. In terms of just the prima
facie case and [defense counsel’s] statement that this jury lacks diversity is
wow. I’m assuming she misspoke. I would go through: Juror No. 2 is Ms. [name]. And I—she could very easily be Hispanic, I’m
not sure but she is definitely of mixed race.
Mr. [name] is Asian. Ms. [name]
is Hispanic. Ms. [name] is Hispanic
slash Filipino. And let’s see. I think those are the seated ones so
far.” The prosecutor pointed to four
other minority prospective jurors in seats 13 to 21. The prosecutor concluded: “So I don’t believe there’s been a prima
facie case. In fact, I would point out
the People have passed with [three Hispanic or mixed Hispanic jurors] in the
actual seated jury.”
The
court noted that there were two additional prospective jurors in seats 13 to 21
who could be Hispanic, and stated: “It
appears to the Court to be a very mixed panel.”
The court noted that three Hispanic prospective jurors had been excused
for cause, and concluded: “And I’m not
finding at this time based on the fact that we have seated jurors who are
Hispanic, the prosecutor has passed on those, that a prima facie case has been
shown. But I understand the need for the
record and the motion at this time is denied.”
B. Legal
Analysis
“Both
the federal and state Constitutions prohibit an advocate’s use of peremptory
challenges to exclude prospective jurors based on race. [Citations.]
Doing so violates both the equal protection clause of the United States
Constitution and the right to trial by a jury drawn from a representative
cross-section of the community under article I, section 16 of the
California Constitution. [Citations.] .
. . . [¶] The Batson three-step inquiry is well established. First, the trial court must determine whether
the defendant has made a prima facie case showing that the prosecutor exercised
a peremptory challenge based on race.
Second, if the showing is made, the burden shifts to the prosecutor to
demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the
defendant has proven purposeful discrimination.
The ultimate burden of persuasion regarding racial motivation rests
with, and never shifts from, the opponent of the strike. [Citation.]
The three-step procedure also applies to state constitutional
claims. [Citations.]” (People
v. Lenix (2008) 44 Cal.4th 602, 612-613 (Lenix).)
Here,
the first step—whether appellant made a prima
facie case of discrimination—is the only part of the inquiry at issue. “In this first stage of any
must show that ‘ “the totality of the relevant facts gives rise to an
inference of discriminatory purpose.” ’
[Citation.]” (
706, 746 (Garcia), quoting
In Johnson, the United States
Supreme Court clarified that the prima facie burden involves “producing
evidence sufficient to permit the trial judge to draw an inference” of
discrimination. (Johnson, at p. 170.)
“Review
of a trial court’s denial of a Wheeler/Batson
motion is deferential, examining only whether
conclusions.” (Lenix, supra,
44 Cal.4th at p. 613.)
In
the present case, the trial court concluded that the defense had not made a
prima facie case of discrimination based on the prosecutor’s peremptory
challenge of prospective Juror No. 116.
As did the prosecutor, the court focused on the diverse makeup of the
jury panel and the prosecutor’s failure to challenge several other Hispanic
jurors. Defense counsel did not dispute
the court’s factual findings at the time she brought the motion; nor does
appellant dispute them now on appeal.
Rather, he now argues that the trial court’s ruling was improper because
he was not required to show that the prosecution had engaged in a pattern of
discriminatory strikes to establish a prima facie case, but only that this one
challenge was improperly based on race.
(See Snyder v. Louisiana
(2008) 552 U.S. 472, 478 [“ ‘[T]he Constitution forbids striking even a
single prospective juror for a discriminatory purpose’ ”];
549 [same].)
Respondent
counters that the court properly found no prima facie case had been made
because, first, the prospective juror’s race was the sole ground given by
defense counsel when it made the motion and, second, it was appropriate for the
court to consider the prosecutor’s failure to challenge other Hispanic
prospective jurors as part of the totality of the relevant facts it had to
consider.
We
agree with respondent that the prosecutor’s failure to challenge other
prospective jurors who were Hispanic is significant and supports the trial
court’s ruling. “While no prospective
juror may be struck on improper grounds, we have found it
‘ “impossible,” ’ as a practical matter, to draw the requisite
inference where only a few members of a cognizable group have been excused and
no indelible pattern of discrimination appears.
[Citations.] . .
. [¶] . . . [¶] . . . Indeed,
ultimate inclusion on the jury of members of the group allegedly targeted by
discrimination indicates ‘ “good faith” ’ in the use of peremptory
challenges, and may show under all the circumstances that no
occurred. [Citation.]” (Garcia,
supra, 52 Cal.4th at
pp. 747-748; see also Lenix,
[“prosecutor’s acceptance of the panel containing a Black juror strongly
suggests that race was not a motive in his challenge of” another Black
prospective juror]; People v. Cornwell
(2005) 37 Cal.4th 50, 69-70, disapproved on another ground in
421, fn. 22 [“The circumstance that the prosecutor challenged one out of
two African-American prospective jurors does not support an inference of bias,
particularly in view of the circumstance that another African-American juror
had been passed repeatedly by the prosecutor from the beginning of voir dire
and ultimately served on the jury”].)
Thus, since the prospective juror’s race was the sole ground given by
defense counsel as supporting its motion, the court appropriately considered
the prosecutor’s failure to challenge other Hispanic prospective jurors in
considering whether appellant had made a prima facie showing of discrimination.
Furthermore,
while appellant points out that prospective Juror No. 116 was of the same race
as appellant, he fails to note that both the victim and several other
prosecution witnesses were also Hispanic, which arguably would make a Hispanic
juror more desirable for the prosecution.
(See Hernandez v. New York
(1991) 500 U.S. 352, 369-370 [finding that trial court could credit
prosecutor’s race-neutral explanation for challenge to Latino jurors where “the
ethnicity of the victims and prosecution witnesses tended to undercut any
motive to exclude Latinos from the jury”]; cf. People v. Taylor (2010) 48 Cal.4th 574, 643 [whether victim
and majority of seated jurors are members of same group is some evidence
permitting an inference of discriminatory excusal].)
In
addition, even assuming the court should have determined, based on counsel’s
statement that prospective Juror No. 116 “would have been a fine juror,”
whether there was additional evidence in the record from which it could draw an
inference of discrimination (Johnson,
supra, 545 U.S. at p. 170), our
independent review of the record permits no such inference. (Cf. Garcia,
is not clear if trial court used correct standard in determining if prima facie
case was made, we “independently decide whether the record permits an inference
that the prosecutor excused jurors on prohibited discriminatory grounds”].)
record not only does not contain anything that would permit an inference of
discrimination; it plainly shows race-neutral reasons for the challenge of
prospective Juror No. 116. (See
48 Cal.4th at p. 644.)
In
response to defense counsel’s voir dire questioning, prospective Juror No. 116,
a child-care site supervisor, agreed that children make things up “[a] lot of
times” and that they have “a lot of imagination.” She further agreed that children can be
manipulated “[a] lot of times too. We
see a lot of case [sic] every day,
yeah.”
was nothing objectionable about prospective Juror No. 116 for the
prosecution, these beliefs, in a case in which the credibility of Jane Doe was
at issue, provided reasonable, race-neutral grounds for the prosecutor’s
peremptory challenge.
In
sum, based on the trial court’s findings and our independent review of the voir
dire record, we conclude that substantial evidence supports the court’s ruling
that appellant failed to make a prima facie case of purposeful discrimination
with respect to the prosecutor’s challenge of prospective Juror No. 116. (Lenix,
supra, 44 Cal.4th at p. 613.)
II. Admission
of Evidence of Prior Sexual Offenses
Appellant
contends the trial court abused its discretion and violated his constitutional
rights when it admitted evidence of prior sexual offenses, pursuant to section
1108.
A. Trial
Court Background
The
prosecutor moved to introduce evidence of appellant’s prior sexual offenses
against John Doe, Evelyn G., Evelyn H., R. S., and Patricia P., pursuant to
sections 1108 and 1101, subdivision (b).
Appellant moved to exclude this evidence.
The
trial court ultimately ruled on the motions, as follows: “The [section] 1108 analysis is also subject
to the [section] 352 analysis where the Court has to make a determination
whether the information will be more probative or whether or not the admission
would be so prejudicial as to outweigh the probative effect.
“The
Court is not going to allow Evelyn G.
The Court is not going to allow Patricia P. to testify.
“The
Court will allow John Doe, Evelyn H., and R. S. based on [section] 1108 and the
determination by this Court that under [section] 352 the information as to
those three witnesses is more probative than prejudicial.”
been diagnosed with genital herpes, finding it more prejudicial than probative
under section 352. It indicated it would
permit evidence of “her condition but not the diagnosis of her condition.”
B. Legal
Analysis
Section 1108,
subdivision (a), provides: “In a
criminal action in which the defendant is accused of a sexual offense, evidence
of the defendant’s commission of another sexual offense or offenses is not made
inadmissible by Section 1101, if the evidence is not inadmissible pursuant to
Section 352.”
In
| Description | Jesus Leonardo Barriere (appellant) was convicted, following a jury trial, of 11 counts of forcible lewd and lascivious acts upon a child, one count of lewd acts upon a child under age 14, two counts of oral copulation of a minor under age 14, and one count of soliciting a minor to use a controlled substance. On appeal, appellant contends (1) the trial court improperly denied his Wheeler/Batson[1] motion challenging the prosecutor’s peremptory challenge of a prospective juror; (2) the court abused its discretion and violated appellant’s constitutional rights when it admitted evidence of prior sexual offenses, pursuant to Evidence Code section 1108[2]; (3) the instruction regarding appellant’s prior sexual offenses, pursuant to CALCRIM No. 1191, violated his rights to due process and proof beyond a reasonable doubt; (4) the court improperly pressured the jury to reach a verdict when it was deadlocked; (5) the court erred in denying appellant’s new trial motion based on the jury’s receipt of an unredacted restraining order declaration; (6) the six-year determinate sentence and the Penal Code section 12022.3 enhancement for count six must be stricken; (7) the restitution fine must be reduced to $10,000; and (8) he is entitled to additional presentence credits. We shall remand the matter for resentencing on count six, correction of the improper restitution fine imposed, and recalculation of appellant’s presentence credits. We shall otherwise affirm the judgment. |
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