P. v. Swauncy
Filed 1/16/13 P. v. Swauncy CA4/2
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
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8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN
THE COURT OF APPEAL OF THE STATE OF
FOURTH
APPELLATE DISTRICT
DIVISION
TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
DEANDRICK
OPIC SWAUNCY,
Defendant and Appellant.
E053556
(Super.Ct.No.
RIF130325)
O
P I N I O N
APPEAL
from the Superior Court of
County. Ronald L.
Taylor (retired judge of the Riverside Super. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) and Bernard Schwartz, Judges.
A.
William Bartz, Jr. for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, and
James D. Dutton, Sabrina Y. Lane-Erwin, and A. Natasha Cortina, Deputy
Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found
defendant Deandrick Opic Swauncy guilty of committing lewd acts and other sex
offenses against his girlfriend’s daughter, Jane Doe. The evidence showed that the crimes were
committed between February 2005 and March 2006, when Jane was seven to eight
years old. Defendant was sentenced to 31
years to life in prison.
On this appeal,
defendant claims the trial court erroneously denied his motion to dismiss the
charges on double jeopardy grounds
after a prior trial ended in a mistrial. He also claims that insufficient evidence
supports his convictions. We reject
these claims and affirm the judgment.
Defendant has
petitioned for a writ of habeas corpus
in case No. E056336, claiming his trial counsel rendered ineffective
assistance. We ordered the writ petition
considered with this appeal. By separate
order, we summarily deny the writ petition.
II. FACTS AND PROCEDURAL HISTORY
A.
1. Background
In February
2005, defendant moved into an apartment with Jane’s mother, Yvette I., Jane,
and Jane’s younger brother, X. In March
2006, when Jane was eight years old, Yvette went to Las
Vegas on a Tuesday and returned home the
following day. When Yvette returned
home, she and defendant got into a “big argument.†Yvette suspected that defendant had been
cheating on her, in part because some of her clothing was not where she left it
in her bedroom, and a vibrator she usually kept in her closet was in a
drawer. Yvette also thought that
something was wrong with Jane because Jane was unusually withdrawn.
Yvette asked
Jane whether anyone had touched her inappropriately. Initially, Jane denied anyone had touched
her, but Yvette kept asking her.
Finally, Jane told Yvette about a “freeze game†defendant would play
with her and X. Eventually, defendant
would only play the freeze game with Jane, and during the game he would “rubâ€
Jane “in sexual places.â€
Jane told
Yvette that defendant would watch pornographic films with her and have her act
out what they saw in the films.
According to Jane, defendant had her engage in oral and anal sex, and
give him “hand job[s].†He also used
“dildos†on her, and digitally penetrated her after lubricating her with “K-Y
[j]elly.†Jane also told her mother that
defendant had semen on him, and “tricked†her into eating it by telling her it
was medicine.
2. Jane’s
RCAT Interview
On March 22, 2006,
Jane had a videotaped interview with a county examiner from the Riverside Child
Assessment Team (RCAT). The videotape of
the interview was played for the jury.
During the
interview, Jane said that approximately one month after defendant and her
family moved into an apartment together in February 2005, and while her mother
was at a Walmart store, Jane “accidentally†saw part of a pornographic movie
that defendant was watching on his computer.
Thereafter, defendant began showing Jane pornographic movies, asked her
to “help him†because no woman was present, and showed Jane the sex acts he
liked.
Jane first
“helped†defendant by wearing her mother’s red skirt and bending over, like
Jane saw a woman do in one of the pornographic movies. Jane described “white stuff†that came out of
defendant, and defendant had her “taste it.â€
On one occasion, when Jane was ill, defendant told her his semen was
medicine, but after she tasted it she continued to cough that night and
concluded that defendant had tricked her.
Defendant “kept
telling†Jane not to wear underwear under her skirt, and touched her vagina on
at least one occasion. On three or four
occasions, defendant lubricated Jane’s rectum with “K-Y†jelly, and inserted a
“butt plug†into it. This “kind of
hurt,†but Jane did not tell defendant it hurt because she thought he would be
“mad or something.â€
On two or three
occasions, defendant tried to insert his penis into Jane’s rectum, but it would
not go inside. On one occasion, he tried
to digitally penetrate her rectum with his finger, but it would not go inside so
Jane “practice[d]†with the “butt plug.â€
On 10 to 11 occasions, defendant had Jane give him a “hand-job†by
rubbing her hands on his penis and squeezing it. Defendant had Jane give him oral sex by
putting her mouth “just on the top†of his penis.
All of the sex
acts would occur when Yvette was away from home and X. was in another
room. Defendant often told Jane not to
tell Yvette about the molestations.
According to Jane, Yvette found out about the molestations when she
found something on Jane’s underwear, and Jane complained of pain in her rectal
area. Defendant last molested Jane one
week before the interview, when Yvette was in Las Vegas.
3. Jane’s
Trial Testimony
Jane
was 13 years old at the time of the second trial in February 2011. At the second trial, Jane denied that defendant
had ever molested her or showed her pornography. She said she made up the
angry with defendant for hitting her and her brother with a belt, and because
she wanted her mother to be with her biological father rather than defendant.
After
defendant was arrested, Jane, X., and Yvette continued to see defendant, and
they all spent the night in the same home, even though Yvette was not supposed
to have Jane or her brother with defendant.
Jane knew that her mother still loved defendant and wanted to be with
him, and this made Jane angry with her mother.
Jane also knew her mother was avoiding having to take Jane to court when
she took Jane and X. to Arizona to live with their aunt.
Jane
and X. were ultimately removed from Yvette’s custody, and this made Jane feel
depressed. Jane thought that she and X.
were removed from Yvette’s custody because she, Jane, had accused defendant of
molesting her. Jane recanted the
allegations after she saw that “everyone was suffering,†and she and X. were no
longer in Yvette’s custody.
4. Additional Prosecution Evidence
On
March 20, 2006, the day after Jane told Yvette that defendant had molested her
and two days before the RCAT interview, Yvette took Jane to the hospital for an
initial medical examination in the emergency department. This initial examination showed there were no
injuries to Jane’s anal or genital areas.
On March 30, 2006, Jane underwent a more thorough “magnification medical
examination†which revealed she had a small “labial adhesion,†or irritation to
her genital area. According to the
pediatrician who conducted both examinations, the labial adhesion could have
been caused by a penis, a finger, another object, such as a vibrator, or by
poor hygiene.
Because
Jane’s initial examination indicated that she was
fine,†Yvette began to question the truth of Jane’s molestation claims. Yvette also failed to take Jane to her
originally-scheduled magnification medical examination on March 22, 2006. According to Yvette, after she told Jane that
the initial medical examination was inconsistent with her molestation claims,
Jane began to cry and said she made up the story because she wanted defendant
“gone.â€
During
a March 28, 2006, interview with child protective services at Jane’s school,
Yvette said to Jane: “Why are you doing
this to me? You know he wouldn’t do
something like this to you. Tell them
you made it up.†“Tell them you’re
lying.†According to Jane’s teacher, who
was present during the interview, Jane did not say she lied, but started to
cry.
Yvette
gave the police some notes, in defendant’s handwriting, that Yvette found in a
notebook in her kitchen. One note
said: “Would you like to get a library
card today, yes or no? If, yes, I need
two or three things from you.†Another
said: “Clean. Let down the shade outside. Close the screen door and the blinds. Take the white clothes to my room. Get dressed, tops and bottoms. Bring me my K-Y
so that I can start something to
impress me. Watch TV, practice
stretching, come up with something impressive.
And I want to do it twice.â€
A
red skirt, which belonged to Yvette and which Yvette found under Jane’s bed
after Yvette returned from Las Vegas, was “tape lifted†and screened for the
presence of seminal fluid. The skirt had
seminal fluid on its front exterior and rear interior. Jane had been trying to hide the skirt when
Yvette was talking to her. The skirt did
not appear to have any pinholes in it.
The
police also recovered a vibrator and a butt plug in the apartment that Yvette
shared with defendant and the children.
The police also recovered a blue shirt, belonging to Jane, that had a
pubic hair on it.
B. Defense
Case
The defense did not present any
affirmative evidence.
C. The
Verdicts and Sentence
The
jury found defendant guilty as charged in counts 1 through 5
of committing lewd acts
against Jane, a child under age 14 (Pen. Code, §§ 288, subd. (a)), in count 6 of sexual
penetration by force, fear, or duress (Pen. Code, § 289, subd. (a)(1)),
and in count 7 of sexual penetration by force, fear, or duress on a child under
14 years of age and seven or more years younger than defendant (Pen. Code,
§ 269, subd. (a)(5)). Defendant was
sentenced to 31 years to life, consisting of six years on count 6, consecutive
two-year terms on counts 1 through 5 (16 years determinate), plus 15 years to
life on count 7.
III. DISCUSSION
A.
Motion to Dismiss the Charges After a Mistrial Was Declared in Defendant’s
First Trial
Defendant
claims the trial court erroneously denied his motion to dismiss the charges on
federal and state double jeopardy grounds, after the court declared a mistrial
in his first trial. We conclude that the
motion was properly denied.
1. Defendant’s
First Trial
name="_ftnref3" title="">[2]
Jury selection
in defendant’s first trial began on January 4, 2010. On January 5, while jury selection was still
in progress, defendant moved to delay the trial and exclude evidence based on
the prosecution’s failure to timely provide certain discovery to the
defense. This discovery consisted of
audiotape interviews of Jane and Yvette, and the transcripts of these recorded
interviews. The court found there was no
good cause for the prosecution’s failure to timely provide this discovery to
the defense, ordered the immediate discovery of the tapes and transcripts, a
brief delay of the trial, and a jury instruction on the late discovery.
On January 7,
2010, the jury in the first trial was sworn.
On January 13, 2010, a mistrial was declared based on the prosecution’s
failure to timely discover and turn over additional discovery to the defense,
specifically, a supplemental DNA report dated November 8, 2006. The report came to light during defense
counsel’s cross-examination of Riverside County Sheriff’s Investigator Brian
Mehlbrech. The report indicated there
were no “pinholes†in the red skirt Jane claimed defendant had her pin on or
pin up during some of the molestations, and that no fecal matter was found on
the “butt plug†that Jane claimed defendant inserted into her anus.
After the
mistrial was declared in the first trial, the defense moved to dismiss the
charges on federal due process grounds, specifically because the prosecution’s
failure to discover and turn over the report constituted a Brady
name="_ftnref4" title="">[3] violation.
The People opposed the motion. In
a declaration in opposition to the motion, the prosecutor denied having any
knowledge of the report before it came to light during defense counsel’s
cross-examination of Investigator Mehlbrech.
In its
opposition papers, the People conceded that the report should have been
discovered and turned over to the defense before trial. Indeed, the parties and the court agreed that
the report was favorable to the defense because it tended to impeach Jane’s
pretrial statements that the molestations occurred, and bolstered defendant’s claim
that the molestations did not occur.
Still, the
People argued that dismissal of the charges was unwarranted because the report
was not material—that is, there was no reasonable probability defendant would
have realized a more favorable result had the report been discovered and turned
over to the defense before the first trial.
the prosecution team to timely discover and turn over the report did not amount
to a true Brady violation because the
report was immaterial, and no “other remedy,†in addition to declaring the
first trial a mistrial—including the dismissal of the charges—was necessary or
appropriate to remedy the late discovery of the report.
At the April
16, 2010, hearing on the motion, defense counsel said he “want[ed] to make it
very clear†that he did not believe the prosecutor acted intentionally or in
bad faith in failing to discover the supplemental DNA report before trial and
turn it over to the defense. The trial
court agreed that there was no “willful misconduct†on the part of the
prosecutor in failing to discover and turn over the report. Thus, the court effectively found that the
prosecutor did not act intentionally or in bad faith in failing to timely
discover the report and turn it over to the defense.
The court
denied the motion on the ground that the prosecution did not commit a
discover and turn over the supplemental DNA report. The court reasoned that the report was not
material—that is, there was no reasonable probability that defendant would have
realized a more favorable result, including acquittal on the charges, had the
report been discovered and turned over to the defense before trial.
2. Analysis
Defendant
claims his motion to dismiss was erroneously denied after the court declared a
mistrial in the January 2010 trial.
Though he argued in the trial court that the entire prosecution team,
including Detective Mehlbrech, committed a Brady
violation in failing to timely discover and turn over the supplemental DNA
report to the defense and for this reason the charges should have been
dismissed, defendant now argues that his retrial on the charges in February
2011 was barred by the double jeopardy clause of the federal and state
Constitutions. We reject this
claim.
When, as here,
a mistrial is granted on the defendant’s motion, the double jeopardy clause of
the Fifth Amendment to the federal Constitution bars retrial only if the
prosecutor intended to provoke the defendant into moving for the mistrial. (Oregon
v. Kennedy (1982) 456 U.S. 667, 675-679; People v. Batts (2003) 30 Cal.4th 660, 680-682.) This rule is based on the defendant’s right
to complete his trial before the first jury is empaneled to try him—one of the
“principal threads†embodied in the Fifth Amendment double jeopardy
clause. (Oregon v. Kennedy, supra, at p. 673.) This court is bound by the trial court’s
factual findings concerning the prosecutor’s intent if substantial evidence
supports them. (People v. Batts, supra, at pp. 684-685.)
At the April
16, 2010, hearing on the motion to dismiss, defense counsel conceded and the
trial court found that the prosecutor did not act intentionally or in bad faith
in failing to discover the supplemental DNA report before the first trial
commenced in January 2010. The record
supports this determination. The
prosecutor denied having any knowledge of the report before its existence was
revealed during defense counsel’s cross-examination of Inspector Mehlbrech
during the first trial, and defense counsel and the court accepted the
prosecutor’s representation.
Accordingly, the retrial in February 2011 was not barred by the Fifth
Amendment double jeopardy clause.
At oral
argument, defendant urged this court to consider not only whether the
prosecutor intended to provoke the mistrial, but also whether anyone on the
prosecution team, including Investigtor Mehlbrech, intended to provoke the
mistrial by intentionally withholding the report. He claims any other rule gives free “reign†to
law enforcement officers and other members of the prosecution team to provoke a
mistrial by intentionally withholding evidence, as long as the prosecutor is
unaware they are doing so. Not so.
As
the trial court determined, there was no Brady
violation in the prosecution team’s failure to discover and turn over the
report, regardless of whether the nondisclosure was intentional or inadvertent,
because the report was not material—that is, it was not reasonably probable
that the report would have affected the outcome of the trial. (People
v. Superior Court (Meraz) (2008) 163 Cal.App.4th 28, 51-52 [“there is never
a real ‘Brady violation’ unless the
nondisclosure was so serious that there is a reasonable probability that the
suppressed evidence would have produced a different verdict.â€].) Defendant does not challenge this
determination. And because there was no
discover and turn over the report, dismissal of the charges was unauthorized
under both the discovery statues and the due process clause of the federal
Constitution. (People v. Superior Court (Meraz), supra, at pp. 48-49 [court
erroneously dismissed special circumstance allegation as discovery sanction
under Pen. Code, § 1054.5, subd. (c), when dismissal not required under
Amendment’s due process clause].)
There is no
authority for deeming a retrial barred under the double jeopardy clause of the
federal Constitution when, as here, the first trial was declared a mistrial at
the behest of the defendant, and the
prosecutor did not intentionally provoke the defendant into moving for the
mistrial. (See Oregon v. Kennedy, supra, 456 U.S. at pp. 673-679.) And as indicated, the remedy for the
intentional suppression of evidence by members of the prosecution team, as opposed to the prosecutor, is limited by
And under Brady, dismissal of
the charges is unwarranted unless the suppressed evidence was
material—regardless of whether the suppression was intentional or
inadvertent. (See Strickler v. Greene (1999) 527 U.S. 263, 280-281;
We now turn to
defendant’s state constitutional claim.
The test for determining whether retrial is barred under the double
jeopardy clause of article I, section 15 of the California Constitution is
broader than the “intent-to-cause-mistrial-test†of the Fifth Amendment to the
v. Batts, supra, 30 Cal.4th at pp. 666, 692-695.) Under the state Constitution, retrial is
barred when the prosecutor intentionally commits misconduct for the purpose of
triggering a mistrial (as it is under the federal Constitution),
view of events that unfold during an ongoing trial that the defendant is likely
to secure an acquittal at that trial in the absence of misconduct,
intentionally and knowingly commits misconduct in order to thwart such an
acquittal—and a court, reviewing the circumstances as of the time of the
misconduct, determines that from an objective perspective, the prosecutor’s
misconduct in fact deprived the defendant of a reasonable prospect of an
acquittal.†(Id. at p. 695; see also Sons
v. Superior Court (2004) 125 Cal.App.4th 110, 116.)
As the People
argue, the trial court’s express finding that the prosecutor did not
intentionally fail to timely discover and turn over the supplemental DNA report
to the defense precludes any conclusion that the retrial of the charges was
barred under the state Constitution. Because
the prosecutor did not intentionally suppress the report, it follows that he
did not commit intentional misconduct in failing to timely discover the report;
did not intentionally provoke defense counsel into moving for a mistrial based
on the report; and did not intentionally suppress the report for the purpose of
thwarting a likely acquittal of defendant on the charges. (See People
v. Batts, supra, 30 Cal.4th at pp. 692-695.)
Nor is there
any indication that defendant had any realistic prospect of acquittal in the
first trial. By the time Investigator
Mehlbrech testified and the supplemental DNA report came to light, both Jane
and her mother Yvette had testified, and Jane’s RCAT interview and Yvette’s
initial statements to the police had also been presented to the jury. Jane’s statements to the RCAT interviewer and
Yvette’s initial statements to the police—together with the red skirt with
semen stains and the other physical evidence found in the family’s apartment—constituted
compelling evidence that the molestations occurred as Jane described them in
the RCAT interview.
Here again,
defendant argues that the People and the trial court failed to address “the
real issue surrounding the mistrial motion,†which was whether a member of the
“prosecution team,†namely, Investigator Mehlbrech, “committed misconduct
intentionally or negligently that forced [defendant’s] trial counsel to request
a mistrial.†Defendant argues: “What the trial court and [the People] fail
to recognize is that the real culprit here is Detective Mehlbrech.â€
This argument
is unavailing. As discussed, the record
supports the trial court’s finding that the prosecutor did not intentionally
suppress the report, and there is no indication that defendant had a realistic
prospect of acquittal during the first trial.
For these reasons, retrial is not precluded under the double jeopardy
provisions of the federal or state Constitutions—even if Investigator Melbrech
intentionally attempted to suppress the report.
Finally,
defendant complains he was effectively denied his counsel of choice after the
attorney he retained to represent him in the first trial, Rajan R. Maline, was
forced to move for and obtain a mistrial in the first trial. Defendant argues that he was “forced to use
court appointed counsel for the second trial.â€
Defendant’s failure to retain Attorney Maline to represent him in the
second trial simply cannot be attributed to the prosecutor’s inadvertent
failure to timely discover and turn over the supplemental DNA report to the
defense before the first trial, the mistrial in the first trial, or the trial
court’s refusal to dismiss the charges.
B.
Convictions
Defendant
next claims that the judgment must be reversed because insufficient evidence
supports each of the convictions in counts 1 through 7. He argues that the prosecution’s case rested
entirely on Jane’s extrajudicial statements—principally to the RCAT interviewer
and to her mother, Yvette—that defendant molested her, and that all of Jane’s
extrajudicial statements were “inherently improbable†based on the entire
record.
In considering
a claim that insufficient evidence supports a criminal conviction, we review
the entire record in the light most favorable to the judgment to determine
whether it contains substantial evidence—that is, evidence that is reasonable,
credible and of solid value—from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.
(People v. Snow (2003) 30
Cal.4th 43, 66.)
Defendant was
convicted in counts 1 through 5 of committing lewd acts on Jane, a child under age 14 (Pen.
Code, §§ 288, subd. (a)), in count 6 of sexual penetration by force, fear,
or duress (Pen. Code, § 289, subd. (a)(1)), and in count 7 of sexual
penetration by force, fear, or duress on a child under 14 years of age and
seven or more years younger than defendant (Pen. Code, § 269, subd.
(a)(5)). Defendant only challenges the
sufficiency of the evidence that the crimes occurred.
As the People argue,
Jane’s statements to the RCAT interviewer and to her mother Yvette several days
before the RCAT interview constitute substantial evidence that the crimes
occurred. Both to Yvette and to the RCAT
interviewer, Jane described in significant and vivid detail the circumstances
under which the molestations began, when and under what circumstances the
molestations occurred, and the things defendant did to Jane and would have Jane
do during the molestations.
Contrary to
defendant’s claim, Jane’s extrajudicial statements are not “inherently
improbable†simply because she denied that the molestations occurred when she
testified at trial. Jane’s denial was
credibly impeached. The jury could have
reasonably inferred that Yvette pressured Jane into denying that the
molestations occurred, given that Yvette came to believe that Jane was lying
about the molestations after her initial medical examination showed she had no
injuries to her genital or anal areas.
The details
that Jane provided to the RCAT interviewer, coupled with the physical evidence
in the family’s apartment, including the sex toys, the red skirt with semen
stains on it, and defendant’s handwritten notes to Jane, were more than
sufficient to allow a jury comprised of reasonable persons to conclude beyond a
reasonable doubt that defendant committed the charged crimes.
IV. DISPOSITION
The
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
KING
J.
We concur:
RAMIREZ
P.
J.
MILLER
J.
name="_ftn1" title="">* Judge Taylor ruled on defendant’s motion
to dismiss following the 2010 mistrial and Judge Schwartz presided at
defendant’s second trial in 2011.
name="_ftn2" title=""> [1] The facts are taken from the
record in defendant’s second trial in February 2011. Defendant’s previous trial in January 2010
ended in a mistrial.
