P. v. Castro
Filed 7/23/13 P. v. Castro CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
MIGUEL CASTRO,
Defendant and
Appellant.
2d Crim. No.
B237742
(Super. Ct. No.
2009025127)
(Ventura
County)
Miguel Castro appeals
from the judgment following his
conviction by jury of three counts of a lewd act upon a child (M.) in
violation of Penal Code section 288,
with true findings of substantial sexual conduct as to each count
(§ 1203.066, subd. (a)(8)), and one count of an attempted lewd act on a
child (§§ 664/288). The trial court
sentenced him to state prison for an
aggregate term of three years. It also
ordered him to pay $50,000 restitution to victim M. for her psychological
(noneconomic) loss, and $35,255.23 restitution to her parents for their
economic loss. Appellant contends that he was deprived of due
process because the prosecution failed to preserve potentially
trial court ordered direct victim restitution without a jury determination of
the amount of the loss. We affirm.
FACTUAL BACKGROUND
Prosecution Evidence
In 1997, appellant
worked as a janitor at a chucrch in Moorpark.
Six-year-old M. and her parents (R. and L.) attended the church. Appellant was a janitor at the church. L. worked in the church office. She and R. directed its choir. Appellant was a featured soloist in the
choir.
M. spent a great deal of
time on the church grounds while L. and R. were there. She followed appellant around while he
performed his duties. She watched him
and wanted to help with his work.
In December 1997,
appellant molested M. on at least four occasions at the church. One incident occurred in the closet where the
congregation stored decorations.
Appellant rubbed M.'s vagina with his hand over her underwear.
Several days before
Christmas, M. was in appellant's van, sitting on his lap. Appellant rubbed her vagina, over her
clothing. R. saw M. in the van sitting
on appellant's lap, and it made him uneasy.
A day or so later, when
a Mariachi band was at the church, M. and appellant were in the kitchen. He
knelt or stood behind her, and rubbed his hand around her vagina, over her
underwear, for several minutes.
Appellant frequently told M. not to tell anyone that he had touched her.
On December 22, 1997, M. followed appellant into a
restroom at the church. He stopped
cleaning, stood behind M., with his arms around her, and rubbed her vagina with
his hand, over her underwear, for several minutes. She heard him breathing in her ear. He then urinated, showed her his penis, and
asked her if she wanted to touch it. M.
asked if she could leave. Appellant answered,
"No, just come touch it. Just
once." M. believed she touched it
twice with two fingers so she could leave.
After the restroom
incident, M. realized that appellant's touching her was inappropriate. L. testified that M. approached her and said,
"Mom, Miguel was touching me, and I want you to tell him to stop it." M. said that appellant was touching her
private parts, her vagina. M. described
appellant's "pushing with his butt" as he stood behind her, with his
arms around her.
L. and R. reported the
incident to a priest at church. M. and L. gave statements to the police in
December 1997, and early 1998. M. used a
doll to show investigating officers how appellant had touched her vagina. The officers interviewed appellant in January
1998.
In 1998, when L. learned
that "the case was not going to court," she told M. L. testified that M. didn't understand why
"she . . . wasn't going to be able to tell her story. . . . She
felt like . . . that was wrong and she should be able to
tell . . . the courts what had happened to her." M. testified that she had "felt very
uncomfortable, like something really bad had
happened . . . when [appellant] asked [her] to touch his
penis." Her elementary school
"psychiatrist" would call her "out of class," and M. would
"sit in her office and color."
She knew "something was going on," and that "all of the
adults were making a fuss." She
liked "to get out of class and go color."
Several years later, M.
saw a movie at school about good and bad touching. That movie made her realize that something
horrible had happened when appellant touched her. She felt hurt, ashamed and depressed for many
years. In November 2008, L. and M. were
working at their polling place on Election Day.
M. saw appellant and his wife at the polling place. When she saw him, M. realized that appellant
had been living a "normal" life, while she had suffered from
depression for years, which required her to take anti-depressant medication and
attend psychiatric therapy. Shortly after Election Day, M. complained to
the police that appellant had molested her when she was a child.
On July 6, 2009, Ventura
County Sheriff's Detectives Chavez and Tougas interrogated appellant.
that he had touched M.'s vagina two to three times over her clothing, for sexual
reasons. He further admitted that he
might accidentally have touched her vagina in the church restroom. He estimated that he touched M.'s vagina for
"one minute maximum." He also
admitted that he had "crossed the line" when he touched her. Appellant cried when he admitted he touched
M. He also asked for forgiveness. He thought that the touching occurred during
a period of one year or less (three months to one year).
Defense
Evidence
Appellant presented
several character witnesses, including his wife and other church members, who
testified that he is not the kind of person who would do anything inappropriate
with a young child. They never saw him
do anything like that at church.
DISCUSSION
The Prosecution Did Not Deprive Appellant of Due
Process
By Failing to Preserve Potentially Exculpatory
Evidence
Appellant contends that the prosecution
deprived him of due process by failing to preserve potentially exculpatory
evidence. We disagree.
Law enforcement agencies have a duty
to preserve evidence "that might be expected to play a significant role in
the suspect's defense." (
479, 488, fn. omitted; People v. Zapien
(1993) 4 Cal.4th 929, 964.) Such
evidence "must both possess an exculpatory value that was apparent before
the evidence was destroyed, and be of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably available
means." (Trombetta, at p. 489.)
Absent a showing of bad faith on the part of the police, the failure to
preserve the evidence does not constitute a due process violation. (Arizona
v. Youngblood (1988) 488 U.S. 51, 57-58; People v. Roybal (1998) 19 Cal.4th 481, 510.)
The case went to trial
in 2011. The day before jury selection,
defense counsel filed a "motion for discovery" seeking copies of
twelve tapes from the 1997-1998 investigation that were mentioned in documents
it received from the prosecution. During
proceedings that day, the prosecutor stated that the sheriff's department had
only two of the interview tapes, including one that was recorded in 2009. Several missing tapes contained interviews of
M. and her parents. Defense counsel
stated, ". . . I do think that we need another further motion and I will
be ask[ing] to file a Trombetta
motion to ascertain why these tapes from 1997, which are the only true evidence
in this case, are not here." (
479.) The next day counsel acknowledged
that Trombetta required a showing
that the missing items would have been exculpatory and the agency knew they
were exculpatory but failed to preserve them.
He claimed that "[w]ithout the benefit of listening to those tapes,
[he had] no way of knowing whether . . . they would have been
exculpatory." The court denied the
The record belies
counsel's claim that he could not know whether the tapes would have been
exculpatory without listening to them.
There is no suggestion that the participants (witnesses or
investigators) in the taped interviews were unavailable. The discovery motion shows the defense
received reports prepared in 1997 and 1998 by Detectives Miramontes and
Englander, who conducted those interviews.
The prosecution listed Miramontes as a potential trial witness. Moreover, during his opening statement,
appellant's counsel gave a detailed description of statements M. and L. made to
detectives in 1997 and 1998. Appellant failed to
make the requisite showing that the missing tapes "possess[ed] an
exculpatory value that was apparent before [they were lost or] destroyed, and
[were] of such a nature that [he] would be unable to obtain comparable evidence
by other reasonably available means."" (California
v. Trombetta, supra, 467 U.S. at p. 489; People v. Alexander (2010) 49 Cal.4th 846, 877-879.) We are not persuaded by appellant's argument that the missing tapes of
interviews with M. and her parents are "a fortiori . . . potentially
exculpatory" where "the prosecution could not find sufficient
evidence" to file charges in 1997 due to lack of sufficient
evidence."
title="">[3]
Direct Victim Restitution
Appellant contends that
he was deprived of his Sixth Amendment right to have a jury determine the facts
underlying the direct victim restitution ordered by the trial court. We disagree.
This contention concerns
the court's order to pay $35,255.23 restitution to M.'s parents for
(f)(3)(C)), and its order to pay M. $50,000 restitution for her psychological
(noneconomic) loss (§1202.4, subd. (f)(3)(F)).
Appellant arguably waived this contention by failing to pursue his right
to a hearing concerning the amount of the awards.
In challenging the
direct victim restitution orders, appellant relies primarily upon
U.S. __, 132 S.Ct. 2344; Apprendi v. New
Jersey (2000) 530 U.S. 466, and Blakely
v. Washington (2004) 542 U.S. 296.
Under Apprendi, other than the
fact of a prior conviction, any fact that increases the penalty for a crime
beyond a prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt. (
490.) In Southern Union, the Court held that the rule applied equally to the
imposition of criminal fines. (
The Fourth District
recently rejected the application of Southern
Union, Apprendi and
574, 585: "[N]either
any application to direct victim restitution, because direct victim restitution
is not a criminal penalty. As explained
in U.S. v. Behrman (7th Cir. 2000)
235 F.3d 1049, 1054, direct victim restitution is a substitute for a civil
remedy so that victims of crime do not need to file separate civil suits. It is not increased 'punishment.' The Millard
decision makes the same point in regard to
v.] Millard [2009] 175
Cal.App.4th [7], 35; accord People v.
Harvest (2000) 84 Cal.App.4th 641, 645, 650.) [N]umerous federal cases also hold[] [that]
victim restitution does not constitute increased punishment for crime. [Citation.]
[T]he restitution statute itself characterizes victim restitution awards
as civil. (See [] § 1202.4, subd.
(a)(3)(B) [victim restitution 'shall be enforceable as if the order were a
civil judgment']"; see also People v. Kramis (2012) 209 Cal.App.4th 346,
351 [Apprendi &
restitution fines, where a trial court exercises its discretion
when selecting a restitution fine pursuant to § 1202.4, subdivision (b)].)
Appellant argues that
"even if Pangan is correct that
economic damages under Penal Code section 1202.4, subdivision (f)(3)[C], are
within a statutory maximum, the $50,000 for noneconomic damages awarded to M. does not fall
within a prescribed '"statutory maximum" for Apprendi purposes' as a 'maximum sentence a judge may impose solely
on the basis of the facts reflected in the jury
verdict . . . .' (
at p. 303.)" However, the absence
of a statutory maximum for noneconomic victim restitution does mean that its
imposition requires a jury finding concerning the underlying losses. "Federal courts have also rejected
restitution statutes because those statutes . . . carry no
prescribed statutory maximum. (
1134, 1144, fn. 1 . . . .)" (Pangan,
supra, 213 Cal.App.4th at pp. 585-586.)
Similarly, the noneconomic loss restitution statute does not have a
statutory maximum. (§1202.4, subd.
(f)(3)(F).) Direct victim restitution,
including that for noneconomic loss, is not punishment. (See Pangan,
at pp. 585-586.)
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P.J.
YEGAN, J.
Fred
H. Byyshe, Judge
Superior
Court County of Ventura
______________________________
Susan Pochter Stone,
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, Victoria B. Wilson, Supervising
Deputy Attorney General, Carl C. Henry, Deputy Attorney General, for Plaintiff
and Respondent.
Code unless otherwise stated.
was played for the jury, which also received a written transcript of the
interrogation. Tougas asked appellant
questions in English. Chavez, who spoke
Spanish, interpreted Tougas's questions by translating them into Spanish, or
rephrasing them in English, for appellant.
