P. v. Michael Roppolo
Filed 3/2/11 P. v. Michael Roppolo CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
| THE PEOPLE, Plaintiff and Respondent, v. MICHAEL GLENN ROPPOLO, Defendant and Appellant. | E049767 (Super.Ct.No. BLF004914) OPINION |
APPEAL from the Superior Court of Riverside County. John G. Evans, Judge. Affirmed.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Michael Glenn Roppolo appeals from his conviction of rape of an intoxicated woman (Pen. Code,[1] § 261, subd. (a)(3)). He contends: (1) the trial court erred in excluding evidence of text messages to impeach the testimony of the victim’s husband; (2) the assessment under Government Code section 70373 must be stricken because it violated the ex post facto clauses of the federal and state Constitutions; and (3) the court security fee should be reduced to $20. We find no error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
On Saturday, October 27, 2007, Thomas Callaghan, his wife Jane Doe, his brother-in-law, Michael Bacon, and his nephew were staying for the weekend at the home of defendant and his wife Shelly Roppolo (Shelly), who was Callaghan’s aunt. That afternoon, Doe began drinking shots of tequila. Defendant, a state prison correctional officer, had been scheduled to work the graveyard shift, but he called in sick and began drinking with her.
By 9:30 p.m., Doe had consumed about nine shots of tequila and had also taken two Vicodin tablets. Doe, Callaghan, Shelly, Bacon, and Shelly’s daughter, Ashley Castleberry, went to the local fairgrounds to attend a high school reunion. When they arrived around 10:00 p.m., Doe was so intoxicated she could not walk on her own, and the group decided to take her back to the Roppolos’ house. Callaghan and Bacon placed her on a mattress in the den. Callaghan stayed with her, and the others returned to the fairgrounds.
Doe lost consciousness around 10:40 p.m., and Callaghan went to the living room to watch television. Callaghan was upset with Doe because of some text messages he had found on her cell phone,[2] and he kept trying unsuccessfully to wake her up to talk to her. Defendant was playing computer games in the basement; Shelly testified he was intoxicated.
Shelly, Bacon, and Castleberry returned from the reunion at around 12:30 or 1:00 a.m. on October 28, 2007. Shelly went to the den to check on Doe and found that the bulletin board and the fan had been knocked over, and Doe had urinated on the floor. Doe continued to lie on the mattress while Shelly cleaned up. Shelly stayed up until 3:00 or 3:30 a.m. with Callaghan, who was upset. He went into the den repeatedly, and he and Doe yelled at one another. After Shelly went to sleep in the basement, defendant came down to check on her around 4:15 a.m., and she told him she was sleeping.
Callaghan, who was still in the living room, saw defendant go to the kitchen. Defendant left the kitchen, but Callaghan did not hear his bedroom door close. Callaghan decided to try again to wake Doe. He walked into the den and saw defendant on his knees holding Doe’s legs up and thrusting his hips between her legs. Callaghan yelled something like, “what the fuck are you guys doing” and defendant said something like, “My wife is leaving me, and I need to get some of this.” Callaghan testified defendant released Doe’s legs, which fell limply to the ground; she did not change position or wake up. Callaghan denied that he believed defendant and Doe were having consensual sex.
Callaghan chased defendant and yelled that he was going to kill him and “kick his ass,” but never made any physical contact with defendant. Defendant put on some clothes and left the house in Shelly’s car. Shelly called the police to tell them defendant was intoxicated and driving her car.
Doe went out to the porch with Castleberry to smoke a cigarette. Although Castleberry testified Doe did not appear intoxicated, Doe fell out of her chair. Bacon testified Doe was extremely intoxicated and was slurring her words so badly he could not understand her. While waiting for the police, Doe told Shelly she was sorry.
When police officers arrived just before 5:00 a.m., Callaghan told them defendant had raped Doe while she was unconscious. Officer Scott Adams found Doe conscious, but confused and intoxicated. She was crying and shaking, and the officer smelled a strong odor of alcohol, and her speech was slurred. She appeared to understand the officer’s questions and responded appropriately. She told him that she woke up on her back with defendant inside her, and she thought she had been drugged. She requested a drug test. She became upset and angry when Callaghan told her defendant had raped her. She denied ever consenting to have sex with defendant.
The officers took Doe to the hospital for a sexual assault examination; she staggered as she walked to the police car. The examining nurse testified Doe had been unable to provide much history but had told of waking up to find defendant on top of her, with Callaghan screaming at defendant to get away from her. She had an abrasion on her arm, a bruise on her knee, and fresh injuries to her genitals, which the nurse testified were consistent with either consensual or nonconsensual sex.
At trial, Doe testified she did not remember leaving the house or anything else that had happened after she consumed her last shot of tequila. She did not remember flirting with defendant. She remembered sitting on a mattress with two police officers standing there.
A toxicologist estimated Doe’s blood alcohol level had been between .14 and .16 percent at 4:00 a.m. on Sunday. Impaired consciousness or stupor is generally found when the blood alcohol level exceeds .20 or .25 percent; however, the effects of alcohol can be amplified by opiates.
Shelly testified Doe was flirting with defendant on Saturday afternoon and was acting “kind of touchy feely, putting her arms around him.” She heard Doe tell defendant she was going to divorce Callaghan because he “couldn’t man up.” Shelly and Castleberry testified Doe told defendant she was not wearing underwear and stating that “Italians make better lovers.”
Shelly ran upstairs when she heard Callaghan shouting; he called Doe a slut, a whore, and a bitch and told her he wanted a divorce. She testified she heard Doe call out after defendant and ask him not to leave. Castleberry also testified she heard Callaghan call Doe a “s[k]ank” and a “whore.” Callaghan, however, denied having called Doe those vulgar names.
Defendant was arrested when he returned to his house at around 10:00 a.m., and officers interviewed him. The interview was tape-recorded; the recording was played for the jury, and the jury was provided with a transcript. During the interview, defendant said he had made a huge mistake. Sergeant Wade asked whether it was because defendant and Doe were married, and defendant responded, “Nah that got nothing to do with it. That’s just . . . it’s a . . . it’s a man and woman thing. I mean she’s just having she’s a person. It’s got nothing to do with marriage I . . . I just I should of never done that.” The colloquy continued:
“[Sergeant] WADE: Because
“[Defendant]: She’s a human.
“WADE: And she was unable to give her consent
“[Defendant]: Right. Correct.
“WADE: Okay. So, I guess that’s why the main thing I’m getting at is you realized she was intoxicated and . . .
“[Defendant]: Yes sir.
“WADE: . . . that she was not able to give her consent.
“[Defendant]: Yes sir.
“WADE: And that . . . that’s what made it wrong
“[Defendant]: Yes sir.
“WADE: Legally wrong
“[Defendant]: Yes sir.”
Later, defendant stated he had slept in the car after leaving the house, but “then I . . . I realized, you know, I’m gonna be arrested. I decided, you know what, I might as well take it like a man. I did it. I’m . . . I’m guilty. I know what I did was wrong. I drove home. I got a shirt on. Took the sweatshirt off, and you all were there.”
At trial, defendant testified Doe had been flirting with him on Saturday evening, including touching him, pushing her breasts together and bending over, telling him she was not wearing underwear, raising her dress to show him her bare buttocks, and telling him Italians “make better lovers” and “last longer.” Doe said she was thinking about divorcing Callaghan because he could not “man up.” Defendant called in sick that night because Doe “begged” him to. When Callaghan and Doe returned from the fairground, Callaghan was angry with Doe and kept yelling at her. Defendant and Callaghan had talked and drunk together.
Defendant testified he had gone to bed around 1:00 a.m. He got up around 4:00 a.m. to check on Shelly, who was sleeping in the basement, and to get a drink of water. While in the kitchen, he heard Doe saying, “somebody fuck me” four or five times. He went to the den and found her rubbing her genital area. She looked him in the eyes and waved him over toward her. He lowered his shorts and climbed onto the mattress. Doe grabbed his penis, stroked it a few times, and inserted it into her vagina. Doe moaned and said it felt good. After a minute or two, Callaghan came into the den and began yelling at them and calling Doe names. As defendant was leaving the house, Doe asked him not to go and to take her with him.
Defendant attempted to explain his damaging admissions during his police interview as follows:
“Q. During the course of your interview [with the police], . . . you say I did something completely inappropriate to somebody else, violated somebody else’s trust space, what did you mean by that
“A. I did something completely immoral and unethical. I had sex with somebody while we were both intoxicated. I knew better. It was a despicable act, yeah.”
Defendant testified he had agreed with the officer’s statement that Doe was unable to give her consent “Because I wasn’t familiar with the law. He was a sergeant. I’m—as being a correctional officer, I’m used to deferring to authority, if a sergeant tells me that’s incorrect, then that’s incorrect.” Defendant further testified that the sergeant had already lied to him by telling him that everyone else at the house had said Doe was unconscious.
The jury found defendant guilty of rape of an intoxicated person (§ 261, subd. (a)(3)) but found him not guilty of a separate count of rape of an unconscious person (§ 261, subd. (a)(4)). The trial court sentenced him to six years in prison but stayed execution of the sentence and placed him on formal probation on the condition, among others, that he serve 365 days in county jail.
Additional facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
A. Exclusion of Evidence
Defendant contends the trial court erred in excluding evidence of the text messages found on Doe’s cell phone. He argues the messages showed that Callaghan lied during his testimony, and the trial court’s refusal to allow him to use the messages to impeach Callaghan was a denial of due process and of the right to present a defense.
1. Additional Background
Before trial, the prosecutor moved under Evidence Code sections 780, 782, 783, 1103, and 352 to exclude any testimony referring to Doe’s possible extramarital affair, the text messages found on Doe’s cell phone, or Callaghan’s reaction upon learning of the possible affair. At the hearing on the motion, the prosecutor and defense counsel agreed the jury could hear evidence that Callaghan found text messages on Doe’s cell phone that upset him, but not evidence that the text messages indicated Doe was involved in some type of extramarital relationship. The trial court stated it would be inclined to admit, for a limited purpose, “[a] general statement that Mr. Callaghan was upset with his wife because he had read those texting messages on her cellphone, . . .” The trial court further stated: “And I think you indicated in chambers, [defense counsel], you were willing to limit that considerably; is that correct” Defendant’s trial counsel responded, “Yes, I believe the way the Court phrased it just earlier that Mr. Callaghan had found text messages on his wife’s cellphone. He was very upset with her, from . . . whatever he found in those text messages, I think that would be . . . sufficient.” Defense counsel added that “the People could describe how he was acting, the way he behaved.” The trial court then ruled: “That will be the order as to the text message issue.”
During Castleberry’s testimony, defense counsel asked her what she had heard Callaghan yelling at Doe. The prosecutor objected, and defense counsel argued he was attempting to impeach Callaghan. The trial court stated: “Because of the Court’s prior ruling, I’m not going to allow her to say or repeat what he said but she can talk about the tone, those types of things.” Castleberry then testified that Callaghan was yelling “extremely loud,” using “vulgar words,” and calling Doe names. Callaghan went back and forth between Doe’s room and the front yard where he was drinking. Castleberry went to her separate apartment to go to bed at around 2:30 a.m.; she was awakened at around 4:00 a.m. when Shelly telephoned her and told her “they had caught [defendant] and [Doe] sleeping together.” Castleberry went to the den where she heard Callaghan calling Doe a “s[k]ank and a whore, that kind of language. That he couldn’t believe she was cheating on him.” Castleberry testified on cross-examination that when Callaghan had been yelling at Doe earlier in the evening, he had been upset about something that did not involve defendant.
2. Forfeiture
The People argue that defendant has forfeited the issue of whether the text messages were appropriately excluded because defense counsel had earlier agreed that such evidence would be excluded. However, because the People have also addressed the issue on the merits, we will do the same.
3. Standard of Review
“‘As with all relevant evidence, . . . the trial court retains discretion to admit or exclude evidence offered for impeachment. [Citations.] A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice . . . .’” (People v. Hartsch (2010) 49 Cal.4th 472, 497.)
4. Analysis
Evidence Code section 1103, subdivision (c) prohibits a rape defendant from using evidence of specific instances of the alleged victim’s previous sexual conduct with other persons to prove that the alleged victim consented. (People v. Franklin (1994) 25 Cal.App.4th 328, 334 [sexual conduct “encompasses any behavior that reflects the actor’s or speaker’s willingness to engage in sexual activity”].) Here, the only contested issues were whether Doe was unconscious or too intoxicated to consent, as Callaghan claimed, or whether she consented to sex, as defendant claimed.
Defendant testified he believed Doe had explicitly offered him sex when she earlier “raised the back of her skirt up” to show him her buttocks. However, neither advance consent of the victim nor a belief that the victim gave advance consent is a defense to sex crimes by intoxication. (People v. Dancy (2002) 102 Cal.App.4th 21, 36-37.)
Defendant’s theory of the case was “essentially, that he and Jane Doe engaged in consensual sex but she cried rape when they were discovered together by Callaghan.” He argues that “Callaghan’s credibility was very much at issue because Callaghan was the only percipient witness to the sexual intercourse between [defendant] and Doe,” and evidence that Callaghan had found text messages on Doe’s phone from another man would have “supported an inference that Callaghan’s first impression was that Doe was having consensual sex with [defendant] and not that she was being raped.”
Although defendant frames his argument in terms of impeaching Callaghan, the import of the argument was to prove that Doe had consented to intercourse. Thus, evidence of Doe’s extramarital affair was inadmissible under Evidence Code section 1103, subdivision (c), and the trial court did not abuse its discretion in excluding that evidence.
Moreover, even if we deemed the trial court’s ruling erroneous, the outcome of the trial was not affected by that ruling, “either as a matter of reasonable probability under state law (People v. Watson (1956) 46 Cal.2d 818, 836, . . .), or under the ‘harmless beyond a reasonable doubt’ standard for federal constitutional error (Chapman v. California (1967) 386 U.S. 18, 24, . . .).” (People v. Hartsch, supra, 49 Cal.4th at pp. 497-498.) The jury’s verdict did not hinge solely on Callaghan’s testimony. Doe herself testified she did not remember any of the events between getting ready to go to the reunion and waking up with police officers present. Other witnesses testified about Doe’s consumption of alcohol and ingestion of Vicodin and her drunkenness. Even without being informed of the content of the text messages, the jury learned that Callaghan was extremely upset with Doe throughout the evening, returning repeatedly to the room where she was staying and yelling at her. Callaghan’s testimony was impeached by that of Shelly and Castleberry: Although Callaghan denied having called Doe vulgar names, both Shelly and Castleberry testified he had done so. Defendant himself admitted to the police that he knew Doe was intoxicated and he had acted wrongly. Finally, the jury did not accept Callaghan’s testimony uncritically, as evidenced by rejection of the charge of rape of an unconscious person. Thus, any error in the exclusion of impeachment evidence was harmless.
Courts have rejected defendants’ attempts to inflate “garden-variety evidentiary questions into constitutional ones.” (People v. Boyette (2002) 29 Cal.4th 381, 427.) Even though Callaghan’s credibility was at issue, the trial court’s evidentiary ruling did not deprive defendant of his due process right to present a complete defense or of his right to confront his accuser.
B. Assessment under Government Code Section 70373
Defendant contends the assessment under Government Code section 70373 must be stricken because it violated the ex post facto clauses of the federal and state Constitutions.
Additional Background
At sentencing the trial court ordered defendant to pay a $30 assessment under Government Code section 70373. He committed his offense on October 28, 2007, and he was convicted on September 24, 2009. The effective date of Government Code section 70373 was January 1, 2009.
Section 3 provides that no part of a penal statute “is retroactive, unless expressly so declared.” In addition, the ex post facto clauses of the federal and state Constitutions prohibit certain categories of legislation, including laws “‘“which make[] more burdensome the punishment for a crime, after its commission. . . .”’” (People v. McVickers (1992) 4 Cal.4th 81, 84.) “[A] penalty assessment cannot be imposed without violating the constitutional prohibition of ex post facto laws if (1) the defendant’s criminal act preceded its enactment; and (2) the assessment is in fact a penalty. [Citation.]” (People v. Batman (2008) 159 Cal.App.4th 587, 590.)
Courts considering the issue have consistently held that that Government Code section 70373 was enacted for a nonpunitive purpose—to ensure adequate funding for court facilities—and its application to crimes committed before the effective date does not offend the prohibition against ex post facto laws. Moreover, the fee is triggered by a conviction, not the underlying criminal act. (E.g., People v. Cortez (2010) 189 Cal.App.4th 1436, 1443; People v. Knightbent (2010) 186 Cal.App.4th 1105, 1111-1112; People v. Fleury (2010) 182 Cal.App.4th 1486, 1489-1490; and People v. Castillo (2010) 182 Cal.App.4th 1410, 1414.) We agree with the reasoning of those cases and adopt their conclusion as our own.
C. Court Security Fee
Defendant contends the court security fee should be reduced from $30 to $20. He argues that when there is a discrepancy between the trial court’s oral pronouncement and a minute order, the oral pronouncement should control. He further argues that greater fee could not be retroactively applied to his offense.
1. Additional Background
Effective July 28, 2009, section 1465.8, subdivision (a)(1) was amended by Senate Bill No. 4X 13 (2009-2010 Ex. Sess.) to increase the court security fee from $20 to $30. (Stats. 2009, 4th Ex. Sess. 2009-2010, ch. 22, § 30.) Defendant committed his crime on October 28, 2007. At the sentencing hearing, the trial court ordered defendant to pay a $20 court security fee under section 1465.8, subdivision (a)(1). The minute order, however, states that the trial court ordered defendant to pay a fee of $30.
2. Analysis
As a general rule the trial court’s oral pronouncement controls when there is a discrepancy between that pronouncement and the minute order. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Here, however, the $20 court security fee was unauthorized. At the time of sentencing, section 1465.8, subdivision (a)(1) required the imposition of a $30 fee, and if the trial court fails to impose the required fee, the sentence is unauthorized, and we may correct it on appeal. (See, e.g., People v. Crabtree (2009) 169 Cal.App.4th 1293, 1328.)
Defendant argues, however, that the increased fee could not be applied to his offense. As noted, section 3 establishes the general rule that when nothing indicates to the contrary, it will be presumed that the Legislature intended a statute to operate prospectively, not retroactively. “‘[T]he critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute’s effective date.’ [Citation.]” (People v. Williams (2004) 118 Cal.App.4th 735, 747.) Section 1465.8, subdivision (a)(1) imposes the fee “on every conviction”; thus, it fixes the point at which the fee is imposed as the “conviction.” A conviction occurs upon the entry of a plea or adjudication of guilt. (See, e.g., Egar v. Superior Court (2004) 120 Cal.App.4th 1306, 1308.) Although defendant committed his crime before the effective date of the amendment, his conviction occurred after that date. Consequently, imposition of the $30 fee was not only proper—it was required.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
CODRINGTON
J.
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