P. v. Garcia
Filed 6/26/12 P. v. Garcia CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
JONATHAN JOSEPH GARCIA,
Defendant and
Appellant.
G045741
(Super. Ct.
No. 09NF2218)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of Orange
County, W. Michael Hayes, Judge. Affirmed in part, reversed in part.
Jonathan Joseph Garcia;
in pro. per; and William D. Farber, under appointment by the Court of Appeal,
for Defendant and Appellant.
Kamala D. Harris,
Attorney General, and Kelley Johnson, Deputy Attorney General, for Plaintiff
and Respondent.
* * *
A jury convicted
defendant Jonathan Joseph Garcia of four counts of committing a lewd act upon a
child under the age of 14 years in violation of Penal Code section 288,
subdivision (a).
title="">[1] With respect to each count, the jury also
found true an allegation that defendant committed the charged offenses on more
than one victim under section 1203.066, subdivision (a)(7). The court sentenced defendant to a 12-year
prison term, comprised of the six-year middle term on count 1, and consecutive
terms of two years (one-third the middle term) on counts 2 through 4.
Defendant timely filed a
notice of appeal, and we appointed
counsel to represent him. Counsel did
not argue against defendant, but advised the court he was unable to find an
issue to argue on defendant’s behalf.
Defendant was given 30 days to file written argument on his own
behalf. Sixty-six days later, defendant submitted
a handwritten supplemental letter brief, which was 36 days late. We nevertheless accepted defendant’s brief
for filing and we have considered his arguments, which essentially amount to
defendant disagreeing with the jury’s view of the evidence. We have examined the entire record and, with
the exception of certain minor sentencing issues, have not found an
v. Wende (1979) 25 Cal.3d 436.)
Accordingly, with certain minor sentencing issues excepted, we affirm
the judgment. In doing so, we provide a
brief description of the procedural history of the case, the facts as
established by evidence at trial, and the punishment imposed upon defendant. (See People
v. Kelly (2006) 40 Cal.4th 106, 123-124.)
FACTS
Doe No. 1
Jane Doe No. 1 (22 years old at the time of her trial
testimony) was born in September 1988.
Jane Doe No. 1’s mother and father divorced when Jane Doe No. 1 was two
years old. Following the divorce, Jane
Doe No. 1 lived with her father, but visited her mother on weekends.
After the divorce, mother married defendant. Mother and defendant had three other
children, including daughter Jane Doe No. 2.
From about age seven to age 11, Jane Doe No. 1 visited her mother,
defendant, and her half-siblings every other weekend at their apartment in Anaheim, California.
There were times when Jane Doe No. 1 and her half-siblings
were home alone with defendant for a “few hours” at a time. Defendant would say, “‘Let’s play house and
I’ll be the dad and one of you will be the mom.’” Defendant would invite the girls to sit on
his lap; Jane Doe No. 1 noticed defendant’s penis was erect when she did so. Both defendant and Jane Doe No. 1 had their
clothes on when this occurred.
Defendant also touched Jane Doe No. 1 on her breasts and
vagina. Defendant used his hands to
touch Jane Doe No. 1’s breasts and vagina, both over and under her
clothing. Jane Doe No. 1 could feel
skin-to-skin contact. Defendant did not insert
his fingers inside of Jane Doe No. 1’s vagina.
This conduct occurred from when Jane Doe No. 1 was seven years old and
continued “a lot” (more than five times) for several years.
Defendant also showed Jane Doe No. 1 and Jane Doe No. 2
pornographic magazines. This occurred
when Jane Doe No. 1 was approximately nine or 10 years old.
Jane Doe No. 1
never talked to anyone about these events while they were occurring because she
was scared. Jane Doe No. 1 told a friend
when she was in seventh grade. When she
was 18 years old, Jane Doe No. 1 told her mother the day before mother was
planning to reunite with defendant in Oregon. Jane Doe No.1 asked mother how she could move
back with someone who had “‘molested us.’”
In July 2009,
Jane Doe No. 1 reported her allegations to the police. This was after a phone conversation with her
grandmother, who accompanied Jane Doe No.1.
Testimony of Jane Doe No. 2
Jane Doe No. 2
was born July 1991 and was 19 years old on the date of her testimony. There were times her father, defendant,
touched her in a way that made her feel uncomfortable. Defendant touched Jane Doe No. 2 on her
vagina with his hand; the touching occurred on top of her clothes. Defendant did not touch Jane Doe No. 2 on any
other parts of her body or ask Jane Doe No. 2 to touch him. Jane Doe No. 2 does not remember how long the
touching lasted. She only remembers it
happening one time. Jane Doe No. 1 was
not present. Jane Doe No. 2 believes she
was six or seven years old when the incident occurred.
Testimony of Mother
The victims’
mother confirmed in her testimony that defendant was home alone with the
victims on occasion.
Other Evidence
Some
witnesses’ testimony called into question the truth of the victims’
allegations. Defendant’s mother
testified that Jane Doe No. 2 told her defendant did not do anything to Jane
Doe No. 2. Jane Doe No. 2 reportedly
said, “‘It’s not so much what [he] did to me.
[He] didn’t do anything to me.
It’s for what he did to my mom.’”
Defendant took the stand and denied any wrongdoing. Other evidence (such as police officer
testimony describing the statements of the victims at their police interviews,
as well as the testimony of mother and a sibling of the victims) suggested
there were inconsistencies between the versions of events told by victims at
various times, but confirmed that the two victims had described lewd touching
incidents at various times prior to trial.
PROCEDURAL HISTORY
On
August 11, 2009, a felony
complaint was filed charging defendant with four counts of lewd conduct upon a
child under 14 years of age between January
1, 1997 and December 31,
2001. It was further alleged
that defendant committed the offenses on more than one victim as set forth in
section 1203.066, subdivision (a)(7). On
September 11, 2009,
defendant pleaded not guilty to all charges.
A preliminary hearing was held June
9, 2010; the court found sufficient and probable cause to believe
defendant committed the charged felonies and held defendant to answer at
trial. An information, filed June 21, 2010, accused defendant of
four counts of lewd conduct (three with regard to Jane Doe No. 1, one with
regard to Jane Doe No. 2).
name="_ftnref2" title="">[2]
On
January 12, 2011, the court
conducted a Marsden
hearing, at the conclusion of which the court ruled that it was “satisfied
[defendant was] receiving appropriate representation of counsel” and therefore
denied defendant’s motion. Trial
commenced on January 25, 2011. The jury convicted defendant of all four
counts with which he was charged (as to two victims). After trial, but before sentencing, the court
conducted another Marsden hearing, at
which time the court again denied defendant’s motion to replace appointed
counsel.
Defendant
moved for a new trial on July 20, 2011, on the grounds: (1) the court wrongly excluded a copy of a
phone call purporting to show Jane Doe No. 2 could speak Spanish fluently (a
fact that would tangentially impeach Jane Doe No. 2 because Jane Doe No. 2
claimed never to have had a conversation with her grandmother about her
allegations because of Jane Doe No. 2’s limited Spanish abilities); and (2)
there was new material evidence in the form of records showing defendant’s
brother repeatedly contacted an investigating police officer, allegedly
(according to the brother) with information about a conversation between Jane
Doe No. 2 and her grandmother in which Jane Doe No. 2 admitted she had
fabricated her allegations. The court
denied the motion.
The
court sentenced defendant to 12 years in prison: six years for count 1 and three consecutive
two-year terms for counts 2 through 4.
The court initially awarded 852 days of presentence custody credits;
appellate counsel successfully moved pursuant to section 1237.1 to correct this
award to provide two additional days of credit. The court also: (1) imposed a restitution fine of $10,000
pursuant to section 1202.4; (2) imposed but suspended a parole revocation fine
of $10,000 pursuant to section 1202.45; (3) imposed a $160 court security
assessment pursuant to section 1465.8, subdivision (a)(1); (4) imposed a $120
criminal conviction assessment fee pursuant to Government Code section 70373,
subdivision (a)(1); (5) imposed a $200 sex offense fine pursuant to section
290.3; (6) ordered defendant to comply with DNA and fingerprint requirements in
sections 296 and 296.1; (7) ordered defendant to register as a sex offender
pursuant to section 290; (8) reserved jurisdiction with regard to the issue of
victim restitution; (9) ordered defendant to stay away from and not contact the
victims pursuant to section 1203.1, subdivision (i)(2); (10) ordered all
visitation between defendant and his victims to be prohibited pursuant to
section 1202.05; and (11) ordered defendant to undergo Acquired Immune
Deficiency Syndrome testing pursuant to section 1202.1, subdivisions (a) and
(e)(6)(A).
DISCUSSION
We have
examined the entire record and, with the exception of certain minor sentencing
issues discussed below, found no arguable issue. There is substantial evidence supporting the
jury’s findings of guilt. The jury was
entitled to rely on the testimony of the victims and discount any apparent
inconsistencies between their trial testimony and out-of-court statements. (People
v. Jones (1990) 51 Cal.3d 294, 316; People v. Harlan (1990) 222 Cal.App.3d 439, 454.) The jury was also entitled to reject the
testimony of defendant and his mother.
There was no
valid statute of limitations defense to the prosecution, despite the delay
between the criminal conduct (as early as January 1, 1997) and the commencement
of the prosecution (in 2009). The
Legislature extended the limitations period for defendant’s crimes before the
initially applicable limitations periods expired. (See § 800 [standard six-year
limitations period]; § 801.1, subd. (b) [prior version of substantively
identical statute was effective January 1, 2001; limitations period for
§ 288 violations extended to 10 years]; § 801.1, subd. (a) [effective
January 1, 2006, limitations period for § 288 offenses extended to
victim’s 28th birthday]; see also In re
White (2008) 163 Cal.App.4th 1576, 1580 [discussing these
provisions].)
Our review
discloses no error with regard to evidentiary rulings or jury
instructions. The court provided
defendant with thorough Marsden
hearings upon request and properly denied defendant’s motions. The court did not err in denying defendant’s
motion for new trial.
Defendant’s
sentence to 12 years in prison is proper based on four lewd conduct counts for
which defendant was sentenced to consecutive prison terms. (§ 288, subd. (a) [conviction results in
“imprisonment in the state prison for three, six, or eight years”];
§ 1170.1, subd. (a) [“The subordinate term for each consecutive offense
shall consist of one-third of the middle term of imprisonment prescribed for each
other felony conviction”].)
But our review
of the record revealed the possibility of several minor sentencing errors. We therefore asked the parties to brief these
issues. Having considered the parties’ briefs,
we find the court committed three errors as discussed below.
Human Immunodeficiency Virus (HIV)
Pursuant to
section 1202.1, subdivision (e)(6)(A), a court may order HIV testing and the
transfer of test results to victims of lewd conduct and other parties if “there
is probable cause to believe that blood, semen, or any other bodily fluid
capable of transmitting HIV has been transferred from the defendant to the
victim.” (Ibid.; see People v. Butler
(2003) 31 Cal.4th 1119, 1125-1126 (Butler);
People v. Stowell (2003) 31 Cal.4th
1107, 1112-1113; People v. Caird
(1998) 63 Cal.App.4th 578, 590.) The
court included such an order at sentencing.
But there is insufficient evidence in the record to support a finding of
probable cause, i.e., “whether the facts known would lead a person of ordinary
care and prudence to entertain an honest and strong belief that blood, semen,
or any other bodily fluid capable of transmitting HIV has been transferred from
the defendant to the victim.” (See
and defendant’s erect penis contacted one of the victims through clothing while
she sat on his lap. There is no evidence
that blood, semen, or any other bodily fluid capable of transmitting HIV was
transferred from defendant to either of the victims. For instance, it would amount to mere
speculation to suggest defendant had an open wound on his hands at the time of
relevant conduct, which could plausibly support a probable cause determination.
This issue is
not necessarily moot. (See
case was moot based on Attorney General’s supposition that testing had occurred
and results already had been transmitted to victim].) The parties’ letter briefs were silent with
regard to whether defendant’s testing had been completed and the results of the
testing. We do not foreclose the possibility
that this issue is moot if defendant’s test indicated he is not infected by the
HIV virus. For now, the proper remedy
under the circumstances of the case is to remand the matter to permit an
additional probable cause hearing. (
Section 1202.05
The
court prohibited visitation between defendant and the victims pursuant to
section 1202.05. This statute applies
“[w]henever a person is sentenced . . . for violating
Section . . . 288 . . . , and the
victim . . . is a
child under the age of 18 years . . . .” (Pen. Code, § 1202.05, subd. (a),
italics added; see People v. Scott
(2012) 203 Cal.App.4th 1303.) The
victims in this case were children when the crimes occurred, but they are now
adults. Section 1202.05 applies “only to
victims who are under the age of 18 at the time of the contemplated
visitation.” (Scott, at p. 1323.) As the Attorney General concedes, the
court erred by issuing an order prohibiting visitation pursuant to section
1202.05.
The
court, applying section 1203.1, subdivision (i)(2), ordered defendant to stay
away from and not contact the victims.
Section 1203.1, subdivision (i)(2), authorizes courts to “order as a
condition of probation . . . that the defendant stay away from the victim, and
. . . have no contact with the victim . . . .”
Defendant was sentenced to 12 years in prison and was not given
probation. As the Attorney General
concedes, this order was in error because defendant was not sentenced to
probation. (See People v. Scott,
1325.)
DISPOSITION
The
judgment is reversed with regard to the following sentencing orders: (1) defendant to stay away from and not
contact the victims pursuant to section 1203.1, subdivision (i)(2); (2) all
visitation between defendant and his victims to be prohibited pursuant to
section 1202.05; and (3) defendant to undergo HIV testing and processing
pursuant to section 1202.1, subdivisions (a) and (e)(6)(A). The no contact and no visitation orders are
stricken. The case is remanded to the
trial court for further proceedings consistent with this opinion, including a
determination whether the prosecution has additional evidence that may
establish probable cause under section 1202.1, subdivision (e)(6)(A) (
is moot if it is established that defendant is not infected with HIV. The trial court is directed to prepare an
amended abstract of judgment reflecting the foregoing modifications to the
judgment. In all other respects, the
judgment is affirmed.
IKOLA,
J.
WE CONCUR:
O’LEARY, P.
J.
MOORE, J.
name="_ftn1" title="">[1] All further statutory
references are to the Penal Code.
name="_ftn2" title="">[2] The information actually
included five counts of lewd conduct, but the prosecutor dismissed count 5
prior to trial.
