P. v. Serrano

Filed 8/30/06 P. v. Serrano CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles L. Peven and Robert J. Schuit, Judges. Affirmed.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Francisco Serrano was convicted of rape by means of force (Pen. Code,[1] § 261(2)) and one count of forcible oral copulation (§ 288a, subd. (c)). On appeal, he claims that his convictions must be overturned because: his state and federal constitutional rights to a speedy trial were violated; the delay in his prosecution violated his due process rights; his Sixth Amendment right to present evidence was denied; and CALJIC No. 1.23.1 unconstitutionally shifted the burden of proof to the defendant.[2] We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 21, 1989, Adriana Z. was approached by Serrano in his car as she walked to her job working on a catering truck. When she neared the car to give Serrano directions, he pulled her into the car and drove away. He refused to let her exit the car, and she was unable to open the door because it had no lock. Serrano demanded that Adriana Z. perform oral sex on him if she wanted to be let out of the car, and she complied. She then asked to be freed, and Serrano told her to shut up and do as he told her if she ever wanted to see her family again. Serrano stopped the car under a bridge, orally copulated and raped her, and then resumed driving.

When Serrano was pulled over by a police officer, Adriana Z. climbed out through the passenger window and ran toward the police officer, begging him to let her into the patrol car. Serrano drove off, with the patrol officer following behind. Serrano soon crashed into a telephone pole and escaped on foot.

Adriana Z. was taken to the hospital and given a sexual assault examination. A rookie police officer, accompanied by her training officer, interviewed Adriana Z., took the rape kit, and prepared a preliminary investigation report and a property report based on items found in Serrano's car. DNA testing demonstrated that the semen collected during the examination of Adriana Z. matched Serrano's DNA.

After escaping from the police, Serrano went to Costa Rica. A criminal complaint was filed on March 6, 1989. Serrano moved to Texas from Costa Rica in December 1989. In 1994, he was pulled over by Texas authorities for an automobile infraction, and was detained based on a California warrant, but he was then released. In 1996, he was again stopped and detained by Texas police, but ultimately was released when California declined extradition. After this second encounter, Serrano asked an attorney to find out his legal status in California. California authorities told Serrano's counsel that Serrano was no longer wanted.

Serrano was arrested in 2004. An information was filed on April 6, 2004. Serrano twice moved to dismiss the charges due to the passage of time, but both motions were denied. At trial, Serrano's defense was that the sexual encounter was consensual and that his subsequent flight reflected not consciousness of his guilt of sexual assault but fear of the police and horror and anxiety at having violated his religion's proscription of sexual intercourse outside of marriage. On October 26, 2004, Serrano was convicted of rape and forcible oral copulation. This appeal follows.

DISCUSSION

I. Alleged Violations of Rights from Delay in Prosecution

Serrano first argues that the trial court should have dismissed the prosecution because the delay in bringing him to trial constituted a violation of his right to a speedy trial under the California Constitution.[3] Under the California Constitution, the filing of a felony complaint triggers the protection of the speedy trial right. (People v. Martinez, supra, 22 Cal.4th at p. 754.) "[A] defendant charged with a felony may predicate a claimed speedy trial violation on delay occurring after the filing of the complaint and before the defendant was held to answer the charge in superior court." (Id. at p. 766.) Such is the case here. "[W]hen a defendant seeks dismissal based on delay after the filing of the complaint and before indictment or holding to answer on felony charges, a court must weigh 'the prejudicial effect of the delay on defendant against any justification for the delay.' [Citations.] No presumption of prejudice arises from delay after the filing of the complaint and before arrest or formal accusation by indictment or information [citation]; rather, the defendant seeking dismissal must affirmatively demonstrate prejudice [citation]." (Id. at pp. 766-767.)

Serrano claims to have been prejudiced in several respects by the delay in prosecuting him. First, his car had long ago been disposed of by the police; Serrano claims that examining the car would have "either corroborated or disproved [Adriana Z.'s] contention that she could not escape because there were no doorlocks, and that there was a threatening black flashlight at the ready." Second, the tape of the chase broadcast had been destroyed. Third, the training officer, who at the time of the investigation was working with the officer who examined Serrano's car, was retired and it was not known if he was still living. Fourth, by the time of trial, the victim's employer, a lunch truck operator, could not be located, so Serrano's account of statements Adriana Z. had made concerning her employment could no longer be corroborated. Fifth, the sexual assault nurse could not be found, and the officer who took Adriana Z. to the examination no longer remembered doing so, "so there was no way to reconcile the examining physician's memory of [Adriana Z.'s] demeanor with the description set forth in the report." Sixth, Serrano's aunt had died in 2001, and she would have been able to testify to the appearance of Serrano's car as well as to corroborate his description of himself as a devout young man.

Serrano devotes pages to the alleged lack of justification for the delay in prosecution, but we do not reach the question of justification because Serrano has failed to establish any prejudice attributable to the state rather than to his own flight. The initial delay in Serrano's prosecution is attributable to Serrano himself-he left the United States within a matter of days after he escaped from the police and settled in Texas upon returning to America from Costa Rica. Serrano cannot properly complain about evidence that was lost or destroyed between the time of his flight in 1989 and the first notice that California authorities received of his apprehension in Texas in 1994, because the failure to prosecute Serrano during this time was caused not by the state but by Serrano's flight and continued absence from California. (See, e.g., People v. Perez (1991) 229 Cal.App.3d 302, 308; People v. Albin (1970) 9 Cal.App.3d 31, 36.) Approximate dates of loss have been established with respect to only one piece of evidence and one witness's testimony. With respect to the remaining lost evidence and testimony that Serrano claims to be prejudicial, Serrano has not shown that they were lost in the years where the lack of a trial was attributable to the state as opposed to becoming unavailable in the initial five years after the incident when Serrano's flight prevented his prosecution. When it comes to that evidence, Serrano, therefore, has not met his burden of demonstrating that he was prejudiced by the state's delay in prosecuting him. (People v. Martinez, supra, 22 Cal.4th at p. 766-767 [defendant's burden to demonstrate prejudice].).

Turning to the one piece of lost physical evidence with an approximate date of loss-police broadcast tapes that would contain broadcasts concerning the pursuit of Serrano-there is evidence in the record that police broadcast tapes were retained for one year at the time of the events in this case. As these tapes were disposed of prior to Serrano's first post-incident contact with California authorities in 1994, their unavailability is due to Serrano's flight, not to any delay by the state in prosecution. Serrano has not established any prejudice attributable to the state with this lost evidence.

The only other evidence with a date of loss established by the record is the testimony that Serrano asserts would have been given by his aunt, who died in 2001. Counsel claims that Serrano's aunt could have "verified his description of himself as a then-devout young man, the sort who would not only have a falling-out about his desire to live in a mission, but who might also, having committed a carnal sin 'second only to murder,' run in horror, returning to his strict Mormon family in Costa Rica." This assertion goes far beyond the offer of proof as to the aunt's testimony made in the trial court. Serrano's trial counsel told the trial court[4] that the aunt would have testified "that she lived with my client's family in Texas and my client lived with her for several months. They went to church together. She would testify that he's-as to his character traits, that he's a gentleman, mild mannered person, would not force anybody to have sex." The court observed that testimony of Serrano's gentleness might be admissible, but that the aunt would not have been permitted to express the opinion that Serrano would not force himself on another person sexually. This falls far short of the broad testimony that Serrano now claims the aunt would have provided. As this claim as to the content of the aunt's testimony is not supported by the record, Serrano has not demonstrated prejudice with this argument.

Serrano also claims that his aunt would have been able to corroborate his testimony that the locks on the doors of his car worked properly so that the passenger door could be opened from inside the car, contrary to the victim's testimony. Had Serrano not fled the country but had been tried at the time of the incident, the car itself presumably would have been available to establish whether the passenger door was operational from the interior, and Serrano's aunt's testimony would have been cumulative. (Evid. Code, § 352; People v. Brown (2003) 31 Cal.4th 518, 571 [Evidence Code section 352 permits exclusion of cumulative evidence].) As Serrano has not established that the loss of the car took place later than 1994 and is therefore attributable to the state's delay in prosecution rather than to his own flight, he cannot predicate his prejudice claim on evidence that would not have been necessary or admissible if a contemporaneous prosecution had been possible. The trial court properly concluded that Serrano had not established a violation of his right to a speedy trial.

Serrano also argues that the delay in prosecution violated his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. To establish a violation of due process based on delay between the filing of a complaint and trial, Serrano must demonstrate prejudice and establish that the delay was intentionally devised to gain a tactical advantage over the defense. (United States v. Marion, supra, 404 U.S. at p. 324; People v. Horning (2004) 34 Cal.4th 871, 895.) This claim, too, fails, because Serrano has not demonstrated prejudice. Moreover, even if Serrano had demonstrated prejudice, he has not offered any evidence that the delay was an intentional tactic to advantage the prosecution. Serrano has not established a due process violation here.

II. Right to Present a Defense

Serrano argues that he was denied his right to present a defense under the Sixth Amendment of the United States Constitution when the trial court would not permit him to offer evidence to counter the prosecution's evidence of Serrano's flight immediately after the assault on Adriana Z. Serrano reasons, "at the point at which appellant was affirmatively inquiring as to his warrant status, it is no longer constitutionally fair to use his flight against him without allowing him to present evidence of his effort to be found." This argument is completely inadequate to raise an issue for appellate review. Serrano does not identify the specific evidence he believes he should have been admitted beyond this reference and a mention of "evidence appellant attempted to offer himself up for prosecution." A string of citations to the record sheds little light on the specific error Serrano argues: we are not told exactly what evidence Serrano claims he should have been able to present. He offers only the most general citations to law concerning the Sixth Amendment right to present a defense, and a single "see generally" citation to a case about flight, People v. Mason (1991) 52 Cal.3d 909. Serrano has not satisfied his burden to affirmatively demonstrate error or his obligation to present factual analysis and legal authority on each point made and to support his arguments with appropriate citations to relevant facts in the record. (See Stark v. Superior Court (2006) 140 Cal.App.4th 567, 632; People v. $497,590 United States Currency (1997) 58 Cal.App.4th 145, 152-153; Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647; People v. Barnett (1998) 17 Cal.4th 1044, 1107, fn. 37 [issues "perfunctorily asserted without any analysis or argument in support" are rejected as not properly raised].)

Moreover, from our review of the transcript, it does not appear that the prosecution presented evidence and argued that Serrano remained on the run and in hiding for years after the incident. Had it done so Serrano would perhaps have been entitled to counter that presentation with evidence that he in fact sought to determine whether he was subject to criminal proceedings in California. The prosecution focused on Serrano's flight immediately after the incident-when he fled the police in a car chase, crashed his car, and fled on foot-and his departure to Costa Rica within days after the incident.[5] The prosecutor argued that this conduct showed Serrano's consciousness of guilt. To counter that argument, Serrano offered evidence and argument that he fled because of deep-seated and longstanding fear of the police and because of a profound moral and spiritual crisis brought on by his contravention of the tenets of his religion by engaging in extramarital sex.

Serrano's attempts to determine whether he remained subject to prosecution in California, coming years after his initial flight at the time of the incident and after two abortive encounters with Texas law enforcement, shed no light on the question of whether that initial flight demonstrated a consciousness of his guilt of sexually assaulting Adriana Z. Contrary to Serrano's argument, he was not denied the opportunity to present a defense because he was not permitted to offer this evidence of his conduct years after his flight.

III. CALJIC No. 1.23.1

CALJIC No. 1.23.1 defines "consent" as "positive cooperation in an act or attitude as an exercise of free will." Serrano alleges that his conviction must be overturned because this definition of consent creates a rebuttable mandatory presumption of lack of consent where there is not positive proof of assent, thereby improperly shifting the burden from the prosecution to prove lack of consent to the defense to prove consent.

This argument was squarely rejected in People v. Gonzalez (1995) 33 Cal.App.4th 1440, 1443, where the court observed that CALJIC No. 1.23.1 merely defined consent and that when the challenged instruction is considered in conjunction with other jury instructions, it is apparent that the prosecution bears the burden of proving the victim's lack of consent. We agree with the Gonzalez court. Not only does CALJIC No. 1.23.1 by its terms establish nothing akin to a presumption, but other jury instructions clearly instructed the jury that the responsibility for proving lack of consent rests with the prosecution. For instance, CALJIC No. 10.00, concerning rape, lists among the "elements" that "must be proved" that the "act of intercourse was against the will of the alleged victim." CALJIC No. 10.10, defining unlawful oral copulation, provides that it "must be proved" that the accomplishment of that act was "against the victim's will." Furthermore, of course, the defendant is "presumed to be innocent until the contrary is proved," and his guilt must be proven beyond a reasonable doubt. (CALJIC No. 2.90.) We conclude that the instruction did not create a presumption of consent and that the instructions as a whole made it quite clear that the burden of proving this element was placed on the prosecution.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

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[1] All further statutory references are to the Penal Code.

[2] Serrano initially made an argument alleging CALJIC No. 1.23.1 had not been given properly, but withdrew that argument by letter after briefing.

[3] Serrano acknowledges that his federal right to a speedy trial is not implicated here. (United States v. Marion (1971) 404 U.S. 307, 320-321; People v. Martinez (2000) 22 Cal.4th 750, 755.)

[4] The offer of proof was made in an in camera hearing and the record was sealed so as not to reveal the defendant's trial strategy. As the trial has now taken place, and Serrano's appeal necessarily implicates this sealed hearing transcript, we order it unsealed.

[5] This evidence was elicited by Serrano's counsel on direct examination.