P. v. Kaplon

















Filed 1/10/13 P.
v. Kaplon CA3











NOT TO BE PUBLISHED



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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

THIRD
APPELLATE DISTRICT

(Siskiyou)

----






>

THE PEOPLE, Plaintiff and Respondent, v. KODY LEE KAPLON, Defendant and Appellant.

C069497 (Super. Ct. No. MCYKCRBF09399)

On
appeal from numerous convictions arising out of his href="http://www.fearnotlaw.com/">kidnapping and sexual assault of a
three-year-old girl, defendant Kody Lee Kaplon contends the trial court erred
by: (1) denying his motion for change of
venue, (2) destroying jury questionnaires, and (3) failing to instruct on the
corpus delicti rule with respect to the sex crimes with which he was charged. We conclude that defendant failed to preserve
the denial of his change of venue motion for appellate review by failing to
renew that motion or otherwise object to the composition of the jury following
a voir dire in which he did not exhaust his peremptory challenges. Because the venue issue is not properly
before us, any error in the destruction of the jury questionnaires was
necessarily harmless. Harmless, too, was
the trial court’s failure to instruct on the corpus delicti rule as to the sex
crimes, because the victim’s statements provided the requisite quantum of
evidence needed to satisfy that rule. We
affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The
facts may be briefly stated. On the
night of March
1, 2009, defendant came to Carolyn
Souza-Myers’s apartment in Yreka; he was intoxicated. Defendant acted “weird,” saying “kind of
off-the-wall things about being in the secret service.” He also said he had come by to say good-bye
because he was “going to jail for a long, long time,” although he did not know
how long or how he was going to get there.
Eventually, defendant was asked to leave.

After
midnight on March 2, defendant arrived at P.S’s apartment. At the time, P.S.’s great-niece -- the victim
in this case (referred to as Jane Doe) -- who was three years old, was sleeping
in the living room just off the kitchen.
Defendant kept going back out to his car to get beer, but eventually,
around 4:00 or 4:30 a.m., P.S. gave defendant some methamphetamine and told him to smoke it
and sober up so P.S. could go to bed.
P.S. then fell asleep without seeing defendant to the door as he usually
did.

The
victim’s great-grandmother (P.S.’s mother), who was also living in the
apartment at the time, awoke to hear the victim saying, “No, I don’t want to go
with you. I don’t like you.” She got up and left her bedroom and almost
crashed into the victim’s mother and father as they came out of their room in
the apartment. Everyone began looking
for the victim, who was not in her bed.
The victim’s mother ran out the door and saw defendant driving away with
the victim on his lap.

James
Ragsdale lives on Humbug Creek
Road, about 20 to 30
minutes outside of Yreka. One morning in
March 2009, around 10:30 or 11:00 a.m., defendant, who looked like he had
rolled down a hill in the mud, knocked on Ragsdale’s door and told Ragsdale he
had rolled his pickup. Ragsdale gave
defendant a ride home.

George
Flippen found defendant’s car later that day “high centered” over the side of a
road in a remote area. He followed some
footprints in the mud and found the victim down a hill off the road. She had mud all over her.

In
an interview with a Child Protective Services worker the same day she was
found, the victim said that “Jack” had taken her in his car, buried her, choked
her, licked her vaginal area, touched her vaginal area with his fingers, put
his penis in her mouth, and put his penis in her vagina. The victim ultimately said it was defendant
who took her.

Defendant
was ultimately charged with attempted murder, kidnapping, sexual intercourse
with a child under the age of 10, two counts of oral copulation with a child
under the age of 10, two counts of committing a lewd and lascivious act on a
child under the age of 14, inflicting cruel and inhuman corporal punishment on
a child, and child endangerment, along with various enhancement allegations.

Before
trial,href="#_ftn1" name="_ftnref1"
title="">[1] defendant filed a motion to change venue, asserting that “due to
the prejudicial publicity surrounding the case, there is a reasonable
likelihood that Mr. Kaplon can not [sic]
receive a fair and impartial trial in href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Siskiyou
County.” In their written opposition
to the motion, the People argued that the motion should be denied “with the
option of being renewed should voir dire indicate the impossibility of
empaneling a jury without unfair prejudice.”
(Bolding and capitalization omitted.)
At the hearing on the motion, the prosecutor reiterated the People’s
request that the court “deny the motion without prejudice,” explaining that
“[i]t is completely appropriate. We can
revisit this question at the time of jury voir dire based upon the responses
that individual jurors, members of the community might have.”

In
July 2010, Judge Langford denied the motion. (At that time, it had already been
determined that Judge Masunaga would be the trial judge in the case.) Judge Langford explained his ruling as
follows:

“[I]n
ruling and announcing and explaining my ruling today, I want to start out by
saying that this court is, at this point, going to be denying Mr. Kaplon’s
motion for change of venue. Knowing that
the issue of venue and the appropriateness of Siskiyou County as the venue in
this case will need to be an issue that the court is mindful of, and an issue
that certainly may need to be further addressed by the trial court during the
jury selection process should it appear at that point appropriate to do so.

“[¶]
. . . [¶]

“Certainly,
the defense motion and the matters in support of it shows [sic] that there is a logical and legitimate concern as to whether a
fair and impartial trial in this matter can be had in Siskiyou County. But that concern does not at this point rise
to the level of concern above that of a mere possibility of an unfair trial.

“Therefore,
I have determined that there is not, at this point, a showing of the reasonable
likelihood as required. . . . [T]he
defense motion is therefore denied, and the issue of a possible change of venue
may be taken up again if and when, in the course of the jury selection process,
it appears to the court that this may be appropriate.

“I
would note -- and it’s very, very clear, and I want to make it very clear to
all in attendance, that under the law, young Mr. Kaplon, as he sits here today,
is presumed innocent, and he retains that presumption of innocence. And unless and until he is proven guilty as
part of a trial process that in all aspects complies with each and every
requirement of the law, the trial in this matter will proceed in Siskiyou
County only if the trial court is satisfied that the jury can fairly and
impartially perform its duties related to the charges against this young man.

“At
this point, however, I have not been persuaded by the defense argument that
there is a reasonable likelihood that a fair and impartial trial cannot be held
in Siskiyou County. Therefore, as I said
and will reiterate, the defense motion at this point is denied.”

Jury
selection began a year later, on July 12, 2011.
Each side had 20 peremptory challenges.
Defense counsel used only 10 peremptory challenges before accepting the
jury panel. Defense counsel then used
another four peremptory challenges before accepting the four alternate
jurors. At no time during or after the
jury selection process did defendant renew his motion for change of venue.

The
jury found defendant guilty of all charges and found all enhancement
allegations were true. The trial court
sentenced him to a determinate term of 14 years and a consecutive indeterminate
term of 87 years to life in prison.

DISCUSSION

I

>Denial Of Motion For Change
Of Venue

On
appeal, defendant’s primary contention is that the trial court violated his
constitutional rights to a fair and impartial jury and a fair trial by denying
his motion for change of venue. The
People contend defendant failed to preserve this issue for appeal by failing to
renew the change of venue motion after jury voir dire. We agree.

“[W]hen
a trial court initially denies a change of venue motion without prejudice, a
defendant must renew the motion after voir dire of the jury to preserve the
issue for appeal.” (People v. Williams (1997) 16 Cal.4th 634, 654-655.) As our Supreme Court explained in >People v. Staples (1906) 149 Cal. 405,
412, “it is not error for the trial court to postpone the consideration of an
application for a change of venue until an attempt is made to impanel the jury,
where leave is granted to counsel to renew his application if the facts
disclosed on the impanelment should further warrant it, and . . . where counsel
fails thereafter to renew his motion, he cannot claim that error was committed
by the court in failing to order a change of venue. . . . [T]he failure to renew [the] motion, where it
was denied temporarily only, [i]s an abandonment and waiver of the whole
question, and fatal to any claim based upon the original application.”>

Defendant
acknowledges that his change of venue motion was denied without prejudice, as
the trial court stated that the motion might “need to be further addressed by
the trial court during the jury selection process” and that “the issue of a
possible change of venue may be taken up again.” He contends, however, that the rule requiring
renewal of the motion after voir dire to preserve the issue for appeal does not
apply here because “the motions court said, three separate times, that the
trial court -- not [defendant] -- would re-raise the change of venue issue if
the trial court thought it was appropriate.”
Defendant contends he “was entitled to rely on the motions court’s
assurances that the venue issue would be re-raised by the trial court if the
trial court thought it appropriate, and via those assurances [defendant] was
relieved of the general obligation to renew his venue motion after the voir
dire.” (Italics omitted.)

We
disagree with defendant’s characterization of Judge Langford’s ruling. At no point did the court state that
defendant was relieved of his obligation to renew the motion to preserve the
change of venue issue for appeal, nor did Judge Langford clearly communicate
that Judge Masunaga would reraise the issue sua sponte. Thus, there was no legitimate reason for
defendant or his attorney to believe that the trial court’s preliminary denial
of the motion for change of venue could be raised as an issue on appeal without
first raising the issue again after voir dire.

This
conclusion makes eminent sense when understood in light of the reason for the
renewal requirement. The reason a
failure to renew a change of venue motion denied without prejudice is deemed
“an abandonment and waiver of the whole question” (People v. Staples, supra,
149 Cal. at p. 412) is because that is the only logical conclusion to be drawn
when a defendant who moved unsuccessfully to change venue before jury selection
chooses not to contest venue anew once a jury has been chosen. Absent a renewal of the change of venue
motion or some other kind of objection to the jury panel, the People, the trial
court, and ultimately the reviewing
court are entitled to assume that the defendant came to believe he >could receive a fair and impartial trial
from the jury that was actually empanelled, despite his belief to the contrary
before jury selection began. That is
particularly true where, as here, the defendant agrees to a jury without having
exhausted his peremptory challenges.
(See People v. Daniels (1991)
52 Cal.3d 815, 854 [“In the absence of some explanation for counsel’s failure
to utilize his remaining peremptory challenges, or any objection to the jury as
finally composed, . . . counsel’s inaction signifies his recognition that the
jury as selected was fair and impartial”].)
A defendant is not entitled to agree to a jury without using all of his
peremptory challenges and without objecting to the jury’s composition in any
manner, and then, dissatisfied with the result of the trial, assert on appeal
that the trial court erred in denying the motion to change venue that he filed
before jury selection had even begun.
Renewal of the motion following voir dire or, at the very least, some
kind of objection to the jury finally selected is necessary to preserve the
venue issue for review on appeal.
Because defendant did not do either of those things here, his challenge
to the trial court’s ruling on his change of venue motion is not properly
before us.

This
conclusion resolves defendant’s second claim of error also, which is that the
trial court violated his constitutional rights by failing to preserve the jury
questionnaires completed by all of the potential jurors who remained after
hardship excuses were granted but who were not ultimately selected to serve on
the panel or as alternates. The only
prejudice defendant claims from the destruction of the questionnaires is that
it “impeded . . . his ability to present [the change of venue] issue to this
Court” because “he was precluded . . . from including important information
about pretrial exposure to the facts of this case.” However, inasmuch as we have declined to
reach the merits of the change of venue issue because it was not preserved for
appeal, any error in the destruction of the jury questionnaires was necessarily
harmless to defendant.

II

>Failure To Instruct On
Corpus Delicti

With
respect to the sex crimes, defendant contends the trial court erred “by failing
to charge with a pattern instruction . . . that the corpus of the crime has to
be proven independently of any admissions by [defendant].” The People appear to concede the error but
contend it was harmless. We agree.

“In
every criminal trial, the prosecution must prove the corpus delicti, or the
body of the crime itself--i.e., the fact of injury, loss, or harm, and the
existence of a criminal agency as its cause.
In California, it has traditionally been held, the prosecution cannot
satisfy this burden by relying exclusively
upon the extrajudicial statements, confessions, or admissions of the
defendant.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169.) “This rule is intended to ensure that one
will not be falsely convicted, by his or her untested words alone, of a crime
that never happened.” (>Id. at p. 1169.) “The independent proof [of the crime] may be
circumstantial and need not be beyond a reasonable doubt, but is sufficient if
it permits an inference of criminal conduct, even if a noncriminal explanation
is also plausible. [Citations.] There is no requirement of independent
evidence ‘of every physical act constituting an element of an offense,’ so long
as there is some slight or prima facie showing of injury, loss, or harm by a
criminal agency.” (Id. at p. 1171.)

“Whenever
an accused’s extrajudicial statements form part of the prosecution’s evidence,
the cases have additionally required the trial court to instruct sua sponte
that a finding of guilt cannot be predicated on the statements alone.” (People
v. Alvarez, supra, 27 Cal.4th at
p. 1170, italics omitted.) But “[e]rror
in omitting a corpus delicti instruction is considered harmless, and thus no
basis for reversal, if there appears no reasonable probability the jury would
have reached a result more favorable to the defendant had the instruction been
given. [Citations.] [¶] Of
course, as we have seen, the modicum of necessary independent evidence of the
corpus delicti, and thus the jury’s duty to find such independent proof, is not
great. The independent evidence may be
circumstantial, and need only be ‘a slight or prima facie showing’ permitting
an inference of injury, loss, or harm from a criminal agency, after which the
defendant’s statements may be considered to strengthen the case on all
issues. [Citations.] If, as a matter
of law, this ‘slight or prima facie’ showing was made, a rational jury,
properly instructed, could not have found otherwise, and the omission of an
independent-proof instruction is necessarily harmless.” (Id.
at p. 1181.)

Here,
defendant complains that a corpus delicti instruction was necessary as to the
sex crimes because of the evidence that he stated at Souza-Myers’s house that
he was “ ‘going to go to jail for a long, long time,’ ” although he did
not know how he was going to get there.
Defendant contends the failure to instruct with a corpus delicti
instruction was prejudicial because “there was no additional evidence
connecting [him] to [the sex crimes] apart from his out-of-court statement at
Souza-Myers’s house.”

Defendant’s
argument lacks merit. Contrary to
defendant’s suggestion, the evidence did not have to “connect[]” him to the sex
crimes to satisfy the corpus delicti rule.
Rather, the evidence only had to “permit[] an inference of injury, loss,
or harm from a criminal agency” (>People v. Alvarez, supra, 27 Cal.4th at p. 1181, italics added) -- that is, the
evidence had to permit an inference that a crime actually occurred, whoever may
have committed it. As the People point
out, the evidence -- specifically, that victim’s statements -- certainly did
that. In fact, the victim’s statements
not only permitted an inference that she had been subjected to lewd and
lascivious acts, sexual intercourse, and oral copulation, her statements also
directly implicated defendant as the perpetrator of those acts. Thus, even if defendant’s misunderstanding of
the corpus delicti rule were correct, his argument would still lack merit. Because there was, as a matter of law, the
requisite quantum of evidence as to the sex crimes to satisfy the corpus
delicti rule, the trial court’s failure to instruct the jury on that rule was
necessarily harmless.

DISPOSITION

The
judgment is affirmed.









ROBIE , J.







We
concur:







NICHOLSON , Acting P.
J.







DUARTE , J.