Opinion
G052443
05-23-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID FRANKLIN AYALA, Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Ayala. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING JUDGMENT AND DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT
The opinion filed on May 23, 2017, is hereby modified as follows:
On page 8, footnote 2, delete all footnote text after the first citation so that the footnote now reads:
Ayala also claims admission of the evidence rendered his trial fundamentally unfair and denied him his right to due process under the Fourteenth Amendment. (Chambers v. Mississippi (1973) 410 U.S. 284, 302-303.) As noted above, the brief references to Ayala's sexual orientation were dwarfed by the overwhelming evidence of Ayala's criminal conduct, other evidence corroborated Jacob's testimony, and the trial court instructed the jury not to let bias based on sexual orientation influence its decision. (CALCRIM No. 200; see Garcia, supra, 229 Cal.App.4th at p. 315 [public attitudes toward homosexuality have changed considerably and prejudice not as antithetical to a fair trial as it once was].)
The erroneous admission of this evidence did not render the trial fundamentally unfair. (See People v. Partida (2005) 37 Cal.4th 428, 436 [admission of evidence, even if error under state law, violates due process only if it makes the trial fundamentally unfair].)
This modification does not effect a change in the judgment. The petition for rehearing is DENIED.
ARONSON, J. WE CONCUR: O'LEARY, P. J. THOMPSON, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12WF2632) OPINION Appeal from a judgment order of the Superior Court of Orange County, Dan McNerney, Judge. Affirmed as modified. Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Ayala. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted David Franklin Ayala of lewd acts on a child (Pen. Code, § 288, subd. (a) [counts 1-5]; all statutory citations are to the Penal Code unless otherwise specified), sodomy by force (§ 286, subd. (c)(2) [count 6]), possession of child pornography (§ 311.11, subd. (a) [count 7]), and using a minor to produce obscene matter (§ 311.4, subd. (c) [count 8]). Ayala contends the trial court erred by admitting evidence of his sexual orientation, and by refusing to instruct the jury on attempted sodomy as a lesser included offense of the lewd act offenses charged in counts 3 and 4. As we explain below, these contentions fail. The parties agree the court minutes and abstract of judgment must be amended to accurately reflect Ayala's sentence. We therefore direct the trial court to correct its minutes and to prepare an amended abstract of judgment. As modified, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
In October 2008, Jacob D. (born June 1996) moved with his parents and younger sister to a townhome in Huntington Beach. Ayala, who lived next door, hired Jacob to walk his dog. Ayala took Jacob to dinner and the movies a few times a week, helped Jacob with homework, and acted "like a counselor." Ayala, a psychiatric nurse, persuaded Jacob to talk about school and family problems, and hugged him when Jacob became emotional.
Ayala, describing himself as a massage therapist, often massaged Jacob's feet, back, thighs, and legs. Eventually, Ayala moved his hands closer to Jacob's genital area. On one occasion, Ayala's hand went under Jacob's shorts and up his thigh. He touched around Jacob's groin area, and squeezed his penis. On a subsequent occasion, Ayala masturbated and orally copulated Jacob, causing him to ejaculate. Ayala bought Jacob gifts, including a television, an iPad, and an iPhone. Ayala touched Jacob's genitals frequently, approximately three times a week, and masturbated and orally copulated him about once a week.
Ayala also began touching Jacob's anus, and inserted his fingers into Jacob's anus on five or six occasions. Ayala also inserted anal toys or dildos and his own penis into Jacob's anus.
In July 2010, as an eighth grade graduation present, Ayala invited Jacob to accompany him on a trip to Puerto Vallarta, Mexico. Jacob's grandmother found out about the trip and contacted the police. Huntington Beach Police Detective Kevin Johnson interviewed Jacob, who at Ayala's suggestion denied having sexual contact with Ayala or that Ayala touched him inappropriately, Jacob did not go on the trip.
In 2011, Jacob's parents separated around spring break of Jacob's high school freshman year. They sold the townhome, and his mother moved to Long Beach. Jacob wanted to continue attending the same high school and did not want to live with his father and younger sister in a recreational vehicle. Jacob accepted Ayala's offer to move in with him. Ayala had been seeing Jacob during this period and continued to orally copulate and anally penetrate Jacob, who nevertheless decided to move in with Ayala because he liked the gifts and money he received.
After he moved in with Ayala, things "went okay in the beginning." The sexual activity continued, including oral copulation and anal penetration. Ayala complained that Jacob would not let him "do sexual things to [him] enough," and eventually Ayala became increasingly aggressive and less friendly. When Jacob told him to stop the sexual abuse, Ayala became upset and reminded Jacob of the "presents and money he" had given him.
On one occasion, Jacob told Ayala to stop and tried to push him away, but Jacob was "too high" on marijuana to resist Ayala's advances. Jacob described these acts as forced, asked Ayala to stop, but Ayala would "persist always" by "getting close . . . and touching" him. Ayala held Jacob down during at least one of the sodomy incidents by placing his hands on Jacob's lower back and forcing him to stay in position on his knees. The anal insertions were painful.
Ayala took photographs of Jacob when he was naked. Ayala gave Jacob an e-mail address "just for [their] communication and not for other stuff." Ayala also persuaded Jacob to touch Ayala's penis on occasion. Ayala said it was "the least" Jacob could "do for the things he" had given him.
In October 2011, Jacob disclosed Ayala's sexual abuse of him to his stepfather, which led to a police investigation. Jacob disclosed to Detective Kraus that Ayala sodomized him forcibly three times before he moved in with him, and a month and half after he moved in, Ayala forced him down on the ground, forced his erect penis into his anus, and ejaculated on him. Jacob estimated this happened six to eight times over the next couple of months. Ayala tried to obtain oral copulation, but Jacob refused and Ayala did not force the issue.
Jacob spoke to Detective Johnson on November 11, 2011. His account varied in certain particulars from his testimony, and from other statements. For example, he stated Ayala tried to put his penis in Jacob's anus, but "it was not strong enough [of an] erection, he has erectile dysfunction" and it "didn't hurt because it never got inside . . . ." Ayala tried anal sex a dozen times, but could never get his penis inside. After that, but before the Mexico trip, Ayala was able to get his penis into Jacob's anus.
The prosecution at trial presented evidence Ayala committed similar uncharged offenses. Bryan L., 29 years old at trial, testified the juvenile court referred him to Ayala for drug and alcohol counseling when he was 15 years old. Ayala designed "an intensive plan" requiring meetings with Ayala six or seven days a week. Ayala took him to restaurants, yoga classes, and Alcoholics Anonymous meetings. Bryan began visiting Ayala's home about a year after they met. Ayala performed massages, which progressed to touching and holding Bryan's penis during massages. Ayala did not masturbate him, and when Bryan told him to stop, Ayala would comply. Ayala offered him beer and marijuana, and took him on a vacation to Puerto Vallarta. During their relationship, Ayala disclosed he was a homosexual. Bryan eventually disclosed the sexual abuse to juvenile hall authorities when he was around 18 years old, explaining he did not complain sooner because he was "scared and didn't feel comfortable really talking about it. It was just embarrassing."
The court admitted Bryan's testimony under Evidence Code sections 1108, and 1101, subdivision (b).
Following trial in March 2015, a jury convicted Ayala as noted above. In June 2015, the court imposed a 16-year prison term.
II
DISCUSSION
A. Trial Court Did Not Prejudicially Err by Admitting Evidence of Ayala's Sexual Orientation
Ayala complains the trial court erred by admitting over his objection evidence of his sexual orientation in the prosecution's case-in-chief. He contends the evidence was irrelevant, more prejudicial than probative (Evid. Code, § 352), constituted impermissible character evidence, and violated his federal constitutional rights. He asserts the evidence prejudiced him as to counts 1 through 6 because these counts centered on Jacob's credibility.
Before trial, the defense moved to exclude evidence referencing Ayala's homosexuality. The court deferred ruling on the issue because it had not heard the evidence, but generally rejected Ayala's legal objections, explaining "I cannot agree with [defense counsel] that your client's sexual orientation is not a factor or is not relevant in the case. Certainly to the extent that the prosecution's theory is that he has a sexual interest in boys as opposed to . . . teenage boys as opposed to something else would appear to be relevant with respect to intent and motive. But any evidence regarding your client's sexual orientation is going to require proper foundation . . . ."
During Jacob's direct examination, the prosecutor asked, "did the defendant ever talk to you about being a homosexual?" Defense counsel objected on relevance and section 352 grounds, which the court overruled, noting "[w]e went over the 352 during pretrial motions." Jacob responded, "Yes," explaining that one time when they were sharing a meal Ayala announced, "I would like to eat you." Jacob said he did not understand and asked Ayala if he was a cannibal. Ayala responded, "No, he was a homosexual."
During Bryan's direct examination the prosecutor asked Bryan if Ayala ever disclosed that he was a homosexual? The court overruled Ayala's relevance objection, and Bryan responded, "He said he was."
Ayala relies on authority excluding evidence of sexual orientation in child abuse cases. In People v. Garcia (2014) 229 Cal.App.4th 302 (Garcia), the trial court ruled the defendant's sexual orientation was not relevant, but the prosecution nonetheless elicited evidence suggesting the defendant was a lesbian. (Id. at pp. 308-309.) During closing argument, the prosecutor repeatedly urged the jury to consider the defendant's sexual orientation in deciding whether she molested a six-year-old girl, arguing the defendant was attracted to women, and therefore had a motive because the victim was a female child. (Id. at pp. 309-310.) The appellate court in Garcia reversed the conviction, explaining "'pedophilia . . . exists wholly independently from homosexuality. The existence or absence of one neither establishes nor disproves the other. . . . California courts have long recognized that a defendant's sexual attraction to adults of the same sex has nothing to do with whether they are sexually attracted to children of the same sex.'" (Id. at p. 313.)
In People v. Giani (1956) 145 Cal.App.2d 539, the prosecution charged the defendant with oral copulation of a 15-year-old boy. The defendant took the witness stand and denied the charge. (Id. at p. 541.) On cross-examination, the trial court allowed the prosecutor to ask over objection whether the defendant was a homosexual, and the defendant admitted he was. The trial court granted the defendant's motion for a new trial. The appellate court in Giani rejected the prosecution's appeal, explaining it had not established homosexuality was a psychobiological condition predisposing a party to commit an illegal sexual offense.
Based on the foregoing cases, Ayala contends the trial court erred in allowing evidence of his homosexuality. Ayala argues "[t]he evidence instantly established a motive where none otherwise existed, and as this Court has noted, motive evidence can be extraordinarily powerful to a prosecutor." Ayala also asserts that "even if the evidence was marginally relevant, its prejudicial impact far outweighed its probative value."
The Attorney General concedes evidence of a defendant's sexual orientation, by itself, is irrelevant, but asserts the evidence was admissible because Ayala's disclosure to the boys he was a homosexual let them know he was interested in them sexually and was "one of the ways [Ayala] got the boys to agree to engage in sexual activity with him" Ayala's disclosure to Bryan he was a homosexual sheds no light on whether he was sexually attracted to him.
Thus, the court erred in admitting Bryan's testimony Ayala informed him Ayala was a homosexual. We need not decide whether the trial court should have excluded Ayala's statement to Jacob under Evidence Code section 352 because any error in admitting Ayala's statement was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) The brief references to Ayala's sexual orientation was dwarfed by the overwhelming evidence of Ayala's criminal conduct. The nude photographs of Jacob and other child pornography found on Ayala's computer corroborated Jacob's testimony, as did Bryan's testimony, which showed Ayala engaged in similar overtures before abusing Bryan. Finally, the court instructed the jury not to "let bias . . . influence [its] decision" and that bias included "bias for or against the . . . defendant . . . based on . . . sexual orientation." (CALCRIM No. 200; see Garcia, supra, 229 Cal.App.4th at p. 315 [public attitudes toward homosexuality have changed considerably and prejudice not as antithetical to a fair trial as it once was].) It is not reasonably probable the outcome of the trial would have been different had the court excluded Ayala's statements to the boys regarding his sexual orientation. B. The Trial Court Did Not Err by Failing to Instruct Jury That Attempted Sodomy was a Lesser Included Offense of Lewd Acts as Charged in Counts 3 and 4
Ayala also claims admission of the evidence rendered his trial fundamentally unfair and denied him his right to due process under the Fourteenth Amendment. (Chambers v. Mississippi (1973) 410 U.S. 284, 302-303.) Ayala forfeited his federal constitutional claim by failing to raise it in the trial court. (People v. Partida (2005) 37 Cal.4th 428, 435 ["[a] party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct"]; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 76 [forfeited contention by failing to make a contemporaneous objection].) --------
Ayala contends the trial court erred by failing to instruct the jury on attempted sodomy (§ 286, subd. (b)(1) [sodomy of a person under 18 years old]; § 664 [criminal attempts]) as a lesser included offense of lewd acts as charged in counts 3 and 4 under the accusatory pleading test. Because attempted sodomy as defined in section 286, subdivision (b)(1), was not a lesser included offense of lewd acts as charged in counts 3 and 4, the trial court did not err.
The information charged Ayala with committing five lewd act offenses (§ 288, subd. (a)) between June 4, 2008 and June 3, 2010, when Jacob was under age 14. Count 3 described the offense as "sodomy first time" and count 4 described the offense as "sodomy last time." The discussion between the court and counsel is somewhat confusing, but as to counts 3 and 4, defense counsel evidently sought instructions on attempted sodomy as a lesser included offense to counts 3 and 4. This was based on Jacob's statements to Detective Johnson that on approximately 12 occasions Ayala suffered from erectile dysfunction and could not penetrate him. The court declined to instruct on the lesser included offenses, and advised the prosecutor she could argue counts 3 and 4 constituted a lewd act regardless of whether Ayala committed sodomy or attempted sodomy.
The trial court has a sua sponte duty to instruct "on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case." (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) The courts must instruct the jury on a lesser included offense "when the record contains substantial evidence of the lesser offense, that is, evidence from which the jury could reasonably doubt whether one or more of the charged offense's elements was proven, but find all the elements of the included offense proven beyond a reasonable doubt." (People v. Moore (2011) 51 Cal.4th 386, 408-409; People v. Breverman (1998) 19 Cal.4th 142, 162.)
A lesser included offense is defined by one of two tests, the "'elements'" test and the "'accusatory pleading"'test. (People v. Lopez (1998) 19 Cal.4th 282, 288.) An offense is a lesser included offense under the "'elements'" test "if the statutory elements of the greater offense include all the elements of the lesser offense so that the greater offense cannot be committed [also] without committing the lesser offense." (People v. Cook (2001) 91 Cal.App.4th 910, 918.) An offense is a lesser included offense under the "'accusatory pleading'" test "if the facts actually alleged in the accusatory pleading include all the elements of the lesser included offense." (People v. Bailey (2012) 54 Cal.4th 740, 748 (Bailey).) An appellate court reviews the trial court's failure to instruct on an assertedly lesser included offense under an independent or de novo standard of review. (People v. Licas (2007) 41 Cal.4th 362, 366.)
Section 288 provides "any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1 [including sodomy], upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years." (See People v. Davis (2009) 46 Cal.4th 539, 606 [lewd acts requires a touching of a child under the age of 14 with the specific intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the defendant or the child].)
Section 286 defines sodomy as "sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy. (b)(1) Except as provided in Section 288, any person who participates in an act of sodomy with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for not more than one year. [¶] (2) Except as provided in Section 288, any person over 21 years of age who participates in an act of sodomy with another person who is under 16 years of age shall be guilty of a felony. [¶] (c)(1) Any person who participates in an act of sodomy with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years."
The crime of attempt occurs when there is a specific intent to commit a crime and a direct but ineffectual act done towards its commission. (§ 21a.) The act required must be more than mere preparation; it must show that the perpetrator is putting his or her plan into action. (People v. Kipp (1998) 18 Cal.4th 349, 376.) Generally, an attempt to commit a crime is a lesser included offense of the completed crime. (People v. Ngo (2014) 225 Cal.App.4th 126, 156-157; but see Bailey, supra 54 Cal.4th at p. 753 [when completed offense is a general intent crime, an attempt to commit the offense does not meet the definition of a lesser included offense under the elements test because the attempted offense includes a specific intent element not included in the complete offense].)
Sodomy and attempted sodomy are not lesser included offenses of lewd acts under the elements test. "Obviously one can commit a lewd act without necessarily also committing sodomy . . . . [Sodomy] . . . require[s] penetration while lewd conduct does not. [Citation.] . . . Attempted sodomy is [] also not an included offense of the crime of lewd conduct." (People v. Gordon (1985) 165 Cal.App.3d 839, 862-863, disapproved on other grounds in People v. Frazer (1999) 21 Cal.4th 737, 765 [noting a person can commit an attempted sodomy without also necessarily violating section 288, as when the attempt is interrupted before any lewd or lascivious touching has occurred].)
Ayala contends attempted sodomy constituted a lesser included offense of lewd acts as charged in counts 3 and 4 under the accusatory pleading test. He asserts, "counts three and four allege that appellant committed a lewd . . . act upon Jacob . . . by means of sodomy. In other words, appellant sodomized Jacob who at the time was under the age of 14 years with the specific intent of arousing, appealing to, and gratifying his or Jacob's lust, passions, and sexual desires. Under the accusatory pleading test, if appellant attempted to commit this offense, but failed to complete it, then this conduct would encompass attempted sodomy with a person under the age of 18, given that the pleading gave notice to the parties that the lewd conduct took the form of sodomy with a minor under the age of 14. . . . Thus, in the context of this case, attempted sodomy with a minor under the age of 18 within the meaning of section 286, subdivision (b)(1), would constitute a lesser included offense of counts three and four." We do not find the argument persuasive.
We view counts 3 and 4 of the information as providing Ayala notice of the incident on which the prosecution would rely to prove a violation of section 288, and not as notice Ayala could be charged with a lesser included offense. In other words, the reference to "sodomy first time" in count 3 and "sodomy last time" in count 4 served to notify Ayala these two specific incidents formed the basis for the lewd acts charged in these counts, rather than numerous other similar acts that could have been charged. (People v. Anderson (1975) 15 Cal.3d 806, 809 ["[a] criminal defendant must be given fair notice of the charges against him in order that he may have a reasonable opportunity to properly prepare a defense and avoid unfair surprise at trial"].) Several reasons lead us to this conclusion.
First, the facts alleged in counts 3 and 4 did not include all the elements that comprise the crime of attempted sodomy as defined in section 286, subdivision (c), and section 664, defining criminal attempts. An element of the crime of attempted sodomy with a child under 14 years of age requires the defendant be at least 10 years older than the victim. The prosecution did not include that element in charging counts 3 and 4. Thus, the facts alleged in counts 3 and 4 did not included all the elements of attempted sodomy with a person under 14 years of age and therefore did not satisfy the accusatory pleading test. (Bailey, supra, 54 Cal.4th 740, 748 [facts alleged in the accusatory pleading must "include all of the elements of the lesser offense"].)
Second, an act of sodomy or an attempted sodomy while touching the victim with the requisite intent is a lewd act and therefore cannot be a lesser included offense of section 288. These acts are essentially identical. The jury legally could not acquit a defendant of lewd conduct but convict the defendant of attempted sodomy where the evidence showed, as it did here, the defendant touched the victim while attempting to complete the sodomy. (Cf. People v. Shockley (2013) (Shockley) 58 Cal.4th 165, 405-406 [battery is essentially an identical offense where lewd conduct supplies the required harmful or offensive touching and therefore cannot be a lesser included offense of lewd conduct].)
Finally, no substantial evidence supported an attempted sodomy instruction, even assuming it could be a lesser included offense of lewd conduct. The evidence showed Ayala over the course of several years sodomized Jacob on numerous occasions. On other occasions, Ayala attempted to sodomize Jacob, but failed to achieve penetration. Counts 3 and 4, however, refer only to the first and last time Ayala completed the act of sodomy, not those occasions where Ayala's erectile dysfunction prevented him from completing the act. Thus, the trial court had no basis to instruct on the crime of attempted sodomy. (Shockley, supra, 58 Cal.4th at p. 404 [courts need instruct on lesser included offenses only "[w]hen there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of" the lesser offense].) The trial court did not err in not instructing on attempted sodomy as a lesser included offense of the lewd acts charged in counts 3 and 4. C. Court's Minutes and Abstract of Judgment Require Correction
The parties agree the abstract of judgment must be corrected in two particulars. The reporter's transcript reflects the trial court imposed a $200 restitution fine (§ 1202.4, subd. (b)(1)), and imposed and stayed a $200 parole revocation fine (§ 1202.45), but the court's minutes and abstract of judgment erroneously reflect fines of $240. (See People v. Zackery (2007) 147 Cal.App.4th 380, 385 [court's oral pronouncements control].) Although the minimum fine increased to $240 on January 1, 2012 (Former § 1202.4 (stats.2011, c. 358 (A.B.898), § 1, eff. January 1, 2012.), the minimum restitution fine at the time of the offenses was $200. Additionally, the reporter's transcript and the court's minutes reflect the court imposed a concurrent two-year midterm for possession of child pornography (§ 311.11, subd. (a) [count 7]). The abstract of judgment erroneously reflects the court imposed both a concurrent and a consecutive two-year term for count 7. The trial court must correct its minutes and prepare an amended abstract of judgment.
III
DISPOSITION
The trial court is directed to correct its minutes from June 26, 2015, to reflect it imposed $200 restitution and parole revocation fines, staying the latter fine. The court is directed to prepare an amended abstract of judgment reflecting the correct fines, and reflecting the court imposed a two-year concurrent term for count 7. The judgment is affirmed as modified.
ARONSON, J. WE CONCUR: O'LEARY, P. J. THOMPSON, J.