P. v. Borja

 

 

 

 

 

 

 

 

 

 

 

Filed 7/8/13  P. v. Borja CA2/2

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

SECOND
APPELLATE DISTRICT

 

DIVISION
TWO

 

 
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THE PEOPLE,               Plaintiff and Respondent,               v.   RODRIGO BORJA,               Defendant and Appellant.

B244589         (Los Angeles County       Super. Ct. No. B123581)

 

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.

Raul A. Sahagun, Judge. 
Affirmed.

 

            Vanessa
Place, 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, Assistant Attorney General, James William Bilderback II and
Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.

 

___________________________________________________

 

            Rodrigo Borja (Borja) was convicted of raping his niece
when she was unconscious.  He now
challenges the sufficiency of the evidence supporting a second conviction that
he conveyed a threatening message to dissuade his niece from testifying against
him at trial.  (Pen. Code, § 136.1,
subd. (a)(1).)href="#_ftn1" name="_ftnref1"
title="">^[1]  We find
no error and affirm.

FACTS

            Defendant
Borja is the maternal uncle of Jane Doe. 
When Doe was young, Borja lived in her home.  Later, she stayed for a month at his trailer
home when she moved to California.  They have never had a romantic relationship.

Doe turned 25 on October 30, 2011, and celebrated by
meeting friends for dinner.  Borja was
the “designated driver” and drank one beer at the birthday party.  Doe had “at least five” drinks, including a
Long Island iced tea, an apple martini, a soft drink with two shots of alcohol,
plus another shot.  After drinking the
last shot, she went to the dance floor and danced a little, but not with
Borja.  “After that I blacked out.  I don’t remember anything.”  She does not recall leaving the restaurant.

A friend nicknamed “Tita” traveled
to the birthday party with Doe and Borja. 
Tita had one or two margaritas. 
She saw Doe consume multiple drinks: 
at the end of the evening, Doe “was fairly drunk because she couldn’t
keep her balance.”  Doe had to be helped
to the car, was stammering, and fell. 
Borja showed no sign of intoxication, and was able to drive and
communicate.  Borja drove Tita home.  Tita described Doe as “fairly unconscious”
during the ride.  Borja and Doe drove off
together after Tita got out. 

Doe has no memory of driving to or
entering Borja’s trailer.  Instead, “the
next thing I remember was waking up to him penetrating me. . . .  I still felt like drunk when I woke up.  I felt him probably like three, four times
thrusting inside of me.”  Specifically,
she felt his penis inside her vagina. 
When Doe uttered the name of a male friend, Borja got off of her,
unlatched the top bunk bed in his trailer, and pretended to be asleep.  Doe’s underwear was rolled halfway down her
thighs, her dress was pushed up, and her vagina was exposed.

Doe arose and asked Borja for her
keys, telephone and wallet.  He got down
from the bunk bed and handed them to her, telling her she was too drunk to
drive.  He did not prevent her from
leaving.  She walked outside to her car
and sent a text message to her friend Tita. 
It was just before five o’clock
in the morning.  Doe did not know why she
was at Borja’s trailer and wanted to make sure he had taken Tita home, since
Doe did not remember leaving the restaurant.

Doe telephoned a friend named
William because she was scared of Borja and wanted comfort.  She could not stop crying, and cried even
more when William asked if someone had hurt her.  She drove to William’s house, but was too
embarrassed to tell him what happened. 
She asked to take a shower because she “felt dirty.”  In the shower, she “overdid it ” and cleaned
her vagina with water and soap for 10 minutes while crying.  Afterward, she told William what happened and
fell asleep. 

On October 31, Tita’s telephone
showed that Doe sent a text message early in the morning.  When they spoke, Doe sounded emotional, and
“seemed scared and confused,” saying that she awoke to find Borja on top of her
and believed that he raped her.  After
Tita finished work, she and Doe went to a police station.  A deputy took Doe to a hospital for an
examination.  A nurse asked questions,
examined her whole body, and took photos of her genitals.  Doe complained of genital soreness and had a
“disruption of the skin surface.”  The
nurse found bruises on the inside of Doe’s thigh.  Swabs were taken, sealed and given to law
enforcement officers. 

A criminalist analyzed the swabs
taken during Doe’s medical examination. 
Semen was detected on samples taken from her vulva, vagina, anus, and cervix.  A DNA analysis was performed.  The criminalist testified that the DNA in the
samples “match[ ] the profile of Rodrigo Borja.”

            Criminal
charges were filed against Borja.  In
February 2012, while the case was pending, Doe’s mother received a call from
Borja, who was in jail.  She testified
that using some “kind of codes, he let me know to tell my daughter not to go to
court.”  He instructed his sister to tell
Doe (“this doll”), “not to go to the party. 
And not to accept the invitations. 
Because if she attended the party, and if she signed or accepted the
invitations, she’s going to end up in a box.” 


            Borja’s
call from jail was recorded, and a transcript was read to the jury.  Borja says that the href="http://www.fearnotlaw.com/">criminal charges against him were
dismissed then refiled.  He asks his
sister to “communicate with the doll. 
Say that if an invitation is received for the party, say do not go
because they’re going to want to set up a room. 
The attorney talked to me about that.” 
His sister inquires, “which doll, my doll?” and Borja replies,
“Yes.”  He reiterates to not accept
invitations “to go that day of the party . . . because my attorney told me that’s
the only thing they’re waiting for him to arrive.”  He adds something incomprehensible about
“doll in a box.”  Borja’s sister asks
whether he will stay in a “warehouse” here, or be sent to another “warehouse
far from here?”  Borja answers, “Well,
that’s why I tell you, when by that day of the party, if he doesn’t go . . .
then the matter is over and they will again throw everything . . . and they
will leave me.”

            Borja’s
sister testified that she had never before (or since) had occasion to discuss
“dolls” with her brother, or “invitations to parties.”  She believed he was using code to refer to
Doe and was concerned about his “doll in a box” remark.  Though Borja used “he” during the
conversation, she understood it to mean “she.”href="#_ftn2" name="_ftnref2" title="">^[2]  She interpreted the conversation as a demand
that Doe not come to court, adding “I was afraid and . . . I understood if she
went to court that she would end up in jail also.”

Doe’s mother informed Doe about the
conversation with Borja.  Doe, in turn,
informed the investigating detective about Borja’s call.  The detective explained that he serves subpoenas
on witnesses, which are signed to show personal service to ensure their
appearance at trial.  If the witness
fails to appear, the case may get dismissed.

PROCEDURAL HISTORY

            Borja was
charged with rape of an unconscious person (§ 261) in Count 1 and dissuading a
witness from testifying (§ 136.1) in Count 2. 
He pleaded not guilty.  Trial was
by jury.  He was convicted on both
counts.  Probation was denied and Borja
was sentenced to the mid-term of six years in href="http://www.mcmillanlaw.com/">state prison on Count 1 and the mid-term
of two years on Count 2.  The sentences
are concurrent. 

DISCUSSION

            Borja was
convicted of violating section 136.1, subdivision (a)(1), which applies to
anyone who “knowingly and maliciously prevents or dissuades any witness or
victim from attending or giving testimony at any trial, proceeding, or inquiry
authorized by law.”  Subdivision (a)(2)
prohibits knowing and malicious attempts
to dissuade a witness or victim from testifying.  Both crimes carry the same penalty.  To “dissuade” means to advise or discourage a
person against an action.  (Webster’s 3d
New Internat. Dict. Unabridged (1981) p. 657.)

To obtain a conviction under
section 136.1, the prosecution must prove that the “defendant’s acts or
statements are intended to affect or influence a potential witness’s or
victim’s testimony or acts . . . .”  (>People v. McDaniel (1994) 22 Cal.App.4th
278, 284.)  Borja argues that there is
insufficient evidence to sustain a conviction for dissuading a witness or victim.  He asserts that “there was no evidence that
the third party [his sister] conveyed the threat, or that the victim was even
momentarily dissuaded.”

Borja’s description of the evidence
is incorrect.  First, there is evidence
that his sister conveyed the threat.  She
testified, at page 119 of the reporter’s transcript, that “After the
conversation [with Borja], I called my daughter about what we had talked about.
. . .  Because the conversation that we
had with Mr. Borja, my brother, I thought that . . . he was very firm when he
was telling me.  And since he was talking
in code, I thought he was referring to my daughter.”  Doe testified that she spoke to her mother
about the telephone call from Borja. 

Second, there is evidence that the
victim was intimidated by Borja’s demand. 
Instead of ignoring Borja’s call, or treating it as a joke, she reported
Borja’s conduct to the police.  The jury
could reasonably infer that Doe’s report to the police shows that she was
dissuaded from (i.e., advised against) coming to court.  Certainly, Borja intended to affect Doe by
making the call, in hopes that the charges against him would be dismissed if
Doe failed to appear at trial.  In short,
Borja’s words support a reasonable inference that he sought to induce Doe to withhold
testimony, which completes the crime.  (>People v. Thomas (1978) 83 Cal.App.3d
511, 514.)

Borja relies on >People v. Foster (2007) 155 Cal.App.4th
331 (Foster).  In Foster,
the defendant assaulted his girlfriend. 
While jailed, he called a friend to say that his girlfriend’s appearance
in court was ‘“not a good idea”’ and directed the friend to ask the victim
‘“not to tell”’ on him.  He also said,
‘“I hope she don’t [sic] show up to
none of the courts . . . because, she’s going to get into trouble,”’ suggesting
that the victim would be arrested if she appeared in court to testify against
him.  The friend replied, ‘“Okay.  I’ll tell her,”’ but decided not to contact
the victim.  The defendant’s recorded
jailhouse calls were played for the jury. 
(Id. at p. 334.)

The appellate court in >Foster concluded that the defendant was
properly convicted of attempting to
dissuade a witness.  The court
observed that section 136.1 does not require that the defendant personally
deliver the message to the witness.  (>Foster, supra, 155 Cal.App.4th at p.
335.)  Foster put his plan into action by
voicing the threat he wanted his friend to convey.  He completed the attempt even though his
friend did not follow through and inform the victim about the threat:  “Foster did everything necessary to ensure
that his threat was carried out.”  (>Id. at p. 336.)

Here, Borja instructed a third
party to tell the victim “not to go to the party” because if she attended the
party, “she’s going to end up in a box.” 
This was Doe’s mother’s interpretation of the threat, and she was
“afraid” for her daughter.  Borja’s
threat was actually communicated to the victim, to dissuade (i.e., discourage)
her from testifying.  Unlike >Foster, Borja’s effort to dissuade was
not thwarted by the messenger’s failure to cooperate.  Instead, the threat reached the victim.

To secure a conviction under
section 136.1, the prosecution need not prove that the victim or witness
changed her testimony or failed to appear in court in response to a
threat.  “Every person attempting the
commission of any act described in subdivisions (a), (b), and (c) >is guilty of the offense attempted without
regard to success or failure of the attempt.  The fact that no person was injured physically,
or in fact intimidated, shall be no defense against any prosecution under this
section.”  (§ 136.1, subd. (d),
italics added.)  “The goal of the
legislation was to discourage all who attempted to dissuade witnesses,
regardless of the means selected or the success of the attempt.”  (Foster,
supra, 155 Cal.App.4th at p. 337.)

Borja complains that the jury
instruction given conflated subdivisions (a)(1) and (a)(2) of section 136.1.href="#_ftn3" name="_ftnref3" title="">^[3]  The instruction was taken from CALJIC No.
7.14.  Although the court read the
bracketed portions of CALJIC No. 7.14 that apply to attempts under subdivision
(a)(2), this is not reversible error. 
The jury found Borja guilty of the completed offense, which is supported
by substantial evidence, so it surely would have found him equally guilty of an
attempt to dissuade.  Subdivisions (a)(1)
and (a)(2) of section 136.1 carry the same penalty, so the outcome would not
have changed even if Borja had been charged with violating subdivision (a)(2) instead
of (a)(1).

DISPOSITION

            The
judgment is affirmed.

NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.

 

                                                                        BOREN,
P.J.

We concur:

 

            CHAVEZ, J.

 

            FERNS, J.*

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

__________________________________________________________________

*          Judge
of the Los Angeles Superior Court, assigned by the Chief Justice

pursuant to article VI, section 6
of the California Constitution.