Opinion
F082351
09-20-2022
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO JAVIER FUENTES, Defendant and Appellant.
William P. Daley, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. No. 4004630 Shawn D. Bessey, Judge.
William P. Daley, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, Acting P. J.
INTRODUCTION
Defendant was charged with sexually assaulting his younger sister, Jane Doe, years earlier, when defendant was 18 and 19 years old and Jane Doe was a minor. At trial, the court admitted a recording of a pretext phone call during which defendant apologized to Jane Doe for what he had done to her. The court concluded the evidence was relevant and defendant's responses could be considered adoptive admissions. A jury found defendant guilty of sexual penetration with a foreign object of a person who is under the age of 18 years (Pen. Code, § 289, subd. (h)) and found true a related allegation the statute of limitations was tolled pursuant to section 803, subdivision (f)(1).
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant claims the trial court erred by admitting the pretext phone call and instructing the jury on adoptive admissions because his responses on the call could not be deemed adoptive admissions under the circumstances. He also asserts the jury erred when it found the statute of limitations had been extended under section 803, subdivision (f)(1), because there was not clear and convincing evidence to corroborate Jane Doe's allegations. Defendant also contends the trial court erred by excluding allegations of prior criminal acts by Jane Doe and that it abused its discretion by imposing a felony sentence. We affirm the judgment.
FACTUAL BACKGROUND
I. Prosecution Evidence
Jane Doe testified defendant, her older brother, sexually abused her between September 6, 1991 to May 30, 1993, when she was 16 to 18 years old and defendant was 18 to 19 years old. Jane Doe has a younger sister, A.R., and another brother, O.
The sexual abuse started when Jane Doe and her family were still living in Mexico, when defendant was 13 years old and Jane Doe was 11 years old. Jane Doe would tell defendant to stop when he started this behavior, but she did not scream or want to draw the attention of family members because she was very scared. Jane Doe did not tell anyone what defendant was doing to her when she was 11 years old. While in Mexico, the neighbors had seen defendant abusing Jane Doe and told Jane Doe's mother she was creating a monster. Jane Doe's mother's only response was to tell defendant to stay away from the windows. Defendant had been physically abusing Jane Doe and her sister while in Mexico, which frightened Jane Doe since he was bigger and stronger and had his mother's protection.
While living on Florence Street in Turlock, Jane Doe and A.R. slept in one room with bunk beds, and their brothers slept in the living room. Jane Doe slept on the bottom bed. Jane Doe's family moved in January 1993 to another home in Turlock where she continued to share a room with A.R., but the brothers had their own bedroom. Jane Doe continued to sleep on the bottom bed of the bunk beds. One time, when Jane Doe was 16 years old, A.R. went and got their mother when defendant was sexually abusing Jane Doe. Jane Doe's mother saw them and was not upset at defendant. Instead, her mother threatened Jane Doe that if Jane Doe told her father, her mother would kill Jane Doe.
Jane Doe specified defendant had touched her in a way that made her uncomfortable during the time period when she was 16 and 17 years old and defendant was 18 and 19 years old. Defendant would put his hands in her vagina at least twice a month, and put his penis in her anus less often, but more than five times. These incidents would occur at night. Defendant would sneak into the bedroom that Jane Doe shared with A.R. Defendant began putting his fingers in Jane Doe's vagina in 1988 and continued until Jane Doe left for college in 1996, when she was about 21 years old. Defendant started sodomizing Jane Doe when she was 15 years old until she was 17 years old; this happened about five times. Defendant was 17 and 18 years old when he sodomized Jane Doe.
Defendant also orally copulated Jane Doe once when she was 17 years old and defendant was 19 years old. Unlike the other incidents, this incident took place during the day. Defendant came in to Jane Doe's room, pushed her onto her bed, took her underwear off, and then licked her vagina for a couple of minutes.
Jane Doe explained the abuse did not stop until she left for college at San Jose State when she was 21 years old. Jane Doe's mother told Jane Doe that if Jane Doe's father found out and hurt defendant, her mother would send Jane Doe to the cemetery. At some point, Jane Doe discussed the abuse with her sister, A.R. Jane Doe left for college around 1996, but did not report the abuse until 2016. During this time, she would see defendant about one to three times a year.
She first reported the abuse to law enforcement on July 19, 2016. She did not report it earlier because of her mother's threats, which Jane Doe felt were real since her mother physically abused Jane Doe, including beating her and even burning her face. Because of the abuse, Jane Doe was afraid of defendant and her mother. Her fear did not turn into anger until she left home, processed the pain, and realized what happened to her was wrong. Jane Doe realized the damage the sexual abuse had caused her when she began having nightmares and fell into depression. She sought the help of a therapist.
On July 1, 2016, Jane Doe told her father about what defendant had done to her. After she told her father about the abuse, she decided to report it to law enforcement because the pain was still hurting her and had not gone away. Now that Jane Doe's father knew about the abuse, there was now no reason to not seek justice. Jane Doe did not report the abuse earlier because of her mother's threats, not wanting her father to find out, and of her own feelings of shame and guilt as victims of sexual assault feel.
On August 18, 2016, Jane Doe had a call with defendant that was recorded by law enforcement. The call was admitted into evidence. Jane Doe explained defendant's response of "'that's how I been taught'" refers to a cousin that molested both Jane Doe and defendant. Jane Doe remembered being molested by a cousin in 1979 when she was four years old.
Jane Doe's sister, A.R., testified defendant would come into the bedroom she shared with Jane Doe during the night. Defendant would go to Jane Doe's side of the bed and send A.R. to the foot of the bed. A.R. did not understand what was going on. She "felt that it was wrong" and it made her feel nauseous; she did not want to be there. A.R. did not talk with Jane Doe about it. Defendant came into the room at night, usually when their father was not home. A.R. made a point to look away and to not know anything.
When A.R. and Jane Doe got bunk beds, Jane Doe slept on the bottom bed and A.R. slept on the top bed. A.R. was 14 years old when they first got the bunk beds, making Jane Doe 15 or 16 years old and defendant 17 or 18 years old. A.R. remembered one time when defendant came into the bedroom, she heard Jane Doe say "it hurts." When the bed started moving, A.R. jumped down, turned on the light, and called her mother in. A.R. saw defendant on top of Jane Doe, sitting on his back legs, covered with a blanket from the waist down. A.R. told her mother what happened and what Jane Doe said, and her mother's face became angry; she told A.R. to be quiet.
After that, A.R. did not say anything to anyone else because she felt threatened and was scared of her mom. A.R. saw her mom be violent towards Jane Doe, grabbing her by the hair, hitting her on her face and calling her names. A.R. also saw defendant call Jane Doe names and physically abuse Jane Doe, punching and hitting her. Defendant also physically abused A.R. by hitting her and pulling her hair. A.R. testified that she witnessed defendant coming into her and Jane Doe's bedroom in the middle of the night up until the time that Jane Doe moved out of the house.
II. Defense Evidence
The defense called Detective Timothy Redd with the Turlock Police Department. Officer Ramos conducted an initial phone interview with Jane Doe on July 26, 2016. Redd interviewed Jane Doe in person on August 15, 2016. Jane Doe told Redd the abuse occurred from 1985 until 1996. Jane Doe said she had not reported it earlier because she was scared. She had disclosed the abuse recently to her counselor, who urged her to report the assault to the police department. Redd discussed scheduling a pretext call with Jane Doe and defendant. Jane Doe told Redd that an act of oral copulation occurred when they moved to Turlock, after 1992.
Defendant's mother admitted to striking Jane Doe's face once because Jane Doe was causing a conflict with Jane Doe's cousins. Other than that, mother maintained that she did not discipline her children often and treated them the same. Mother denied ever having a conversation with a neighbor over concerns regarding defendant while living in Mexico. Mother denied that A.R. ever called to her to come into the bedroom or saw defendant in the room with a blanket wrapped around him. Mother maintained that she never saw Jane Doe be sexually abused by defendant and Jane Doe never told her that she was being sexually abused by defendant. Mother testified that she discovered defendant and Jane Doe were sexually abused by a cousin.
Mother stated that she had a good relationship with Jane Doe when Jane Doe dated her first husband; she and Jane Doe were "very close." Jane Doe supported mother as mother was separating from her husband, Jane Doe's father. Mother told Jane Doe her husband, Jane Doe's father, was physically and emotionally abusive. Jane Doe was upset when mother went back to her husband because Jane Doe was concerned her mother was going back to an abusive relationship. Mother finalized her divorce in 2016.
Defendant's wife, A., testified that she was present in the room during the pretext phone call between defendant and Jane Doe. A. was with defendant in his classroom; the classroom door was closed but unlocked during the phone call. The phone call was during their lunch break. Towards the end of the lunch break, two students had walked in. A. gestured for them to put their bags down and leave. A. then stood by the door to monitor it. The phone call lasted about 15 to 20 minutes. A. testified that she did not speak with defendant about the call afterward. She could not hear Jane Doe on the phone, but she could hear defendant's responses and she recalled hearing defendant apologizing to Jane Doe. A. testified she and her husband would spend time with Jane Doe and had spent the night at Jane Doe's house approximately five times. Jane Doe and her family would also visit defendant and A. and Jane Doe allowed defendant to play with her children. The visits stopped in 2016 and A. had not spoken to Jane Doe since then.
Jane Doe's other brother, O., testified for the defense. O. is the youngest of the four siblings; Jane Doe is three years eight months older than him. O. explained that while living at the Florence apartments in Turlock, he slept in the living room with defendant while his sisters slept in a bedroom, sharing one bed. During this time, O. slept next to defendant and never remembered defendant getting up in the night to go into his sisters' bedroom. After the Florence apartments, they moved to a place on Johnson street in Turlock where O. and defendant shared a bedroom and the sisters shared a bedroom with bunk beds. O. did not recall a time when his sister A.R. yelled out for their mother, causing her to come into their bedroom. O. remembered that Jane Doe and defendant got along really well and did not fight.
O. described his mother as quiet and easy to talk to and never saw his mother being physically or verbally abusive of Jane Doe or any of the siblings. His mother never changed her demeanor in a way that would scare them and he never saw his siblings display fear at their mother's discipline. O. stated his father was sterner than his mother. His father handled more of the discipline, the majority of which was directed at defendant. O. had a good relationship with his sisters when they were younger, but he did not have a close relationship with his sisters at the time of trial.
The defense called a number of character witnesses, including defendant's teacher who became friends with defendant and defendant's wife's mother. They both described defendant's relationship with Jane Doe as friendly and loving.
III. Verdict and Sentencing
The jury found defendant guilty of count II, penetration of a minor by a foreign object (§ 289, subd. (h)), and found true that the statute of limitations was extended pursuant to section 803, subdivision (f)(1). The jury found defendant not guilty on count I, oral copulation of a person under 18 years (former § 288a, subd. (b)(1)), and not guilty on count III, sodomy of a person under 18 years (§ 286, subd. (b)(1)). The trial court denied probation and imposed two years' state prison, but suspended it for 24 months.
DISCUSSION
I. Trial Court Did Not Err in Admitting Pretext Phone Call
Defendant claims that the trial court erred when it admitted the recorded pretext phone call between him and Jane Doe under Evidence Code section 1221. Defendant claims he was not afforded a fair opportunity to respond to the allegations as he was not in a private setting. Additionally, defendant claims that the statements were irrelevant to the charges. Relatedly, he also asserts, in passing, it was error for the court to instruct the jury on adoptive admissions. We conclude defendant forfeited the issue and, regardless, the court did not abuse its discretion in admitting the pretext call.
A. Relevant Factual and Procedural History
Before trial, the People moved to admit statements that defendant made during a recorded pretext phone call with Jane Doe as an admission by a party opponent pursuant to Evidence Code section 1220. The defense submitted. The trial court noted defendant opposed the admission of defendant's statements made pre-Miranda. The trial court concluded defendant's statements were not made during a custodial interrogation and held the statements were admissible after the People laid a foundation for the call. Although defendant noted in his in limine motions that Evidence Code sections 402 and 403 required the People to make a preliminary showing of the relevance of proposed evidence, specifically noting defendant's pretext statements, the defense did not request an Evidence Code section 402 hearing during the pretrial conference.
See Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
During the trial, a recording of the pretext phone call was played for the jury. The following are a few relevant excerpts from the transcripts:
"JANE DOE: But the sexual abuse, Javier, 10 years that you treated me like your sex object-how do you think that affected me? What effect do you think that has in my life?
"[DEFENDANT]: Well, the effect that, well, that it's had in me also.
"JANE DOE: So then it affected you…
"[DEFENDANT]: I-I…
"JANE DOE: …to have abused me sexually?
"[DEFENDANT]: …I-I-no-no-no-no. No-no-no-no. Listen to what I'm sayi-listen-listen-listen-listen to what I'm saying. In the same way that it affected me when I was sexually abused-and I know what-I know-I know exactly what it's like. I know-I know what that's like. And-and I don't want to go into detail…
"JANE DOE: But if…
"[DEFENDANT]: …because it is too painful.
"JANE DOE: But if you know…
"[DEFENDANT]: No-no-no. No…
"JANE DOE: …that-if you-then-why did you do it to me if you know how painful it is? Why did you do it to me?
"[DEFENDANT]: Okay.
"JANE DOE: When I'm your sister.
"[DEFENDANT]: Okay. Look. What I want-I don't have answers for you. The only thing I have is-I'd also ask the same thing- why was it done to me? When certain people should have taken care of me-when certain people who should have been with me. Do you understand me? [¶] … [¶]
"JANE DOE: … I'm looking for your answer-yours-from your heart. Because it wasn't one time-it was 10 years, [defendant]… [⁋] … [¶] …in which you abused me…
"[DEFENDANT]: Jane Doe…
"JANE DOE: …[defendant]. It was 10 years.… [¶] … [¶]
"[DEFENDANT]: … what do you want me to tell you? I'm giving you my answer. I'm giving you my answer right now and you're not liking it. I'm not talking here to fight. I'm giving you my answer.
"JANE DOE: I don't want to fight either, [defendant]. I don't want to fight. I want to tell you how…
"[DEFENDANT]: But what answer do you want[?]
"JANE DOE: …I feel. I want to tell you…
"[DEFENDANT]: Well, I know…
"JANE DOE: …how I feel. I want to tell you how much it hurt me that you treated me like that for 10 years since I was a little girl, [defendant].
"[DEFENDANT]: I-okay.
"JANE DOE: And then later…
"[DEFENDANT]: Okay.
"JANE DOE: …you were also an adult. Ten years is a long time, don't you think? And then as an adult too[?]
"[DEFENDANT]: Jane Doe…
"JANE DOE: …[defendant]. As an adult…
"[DEFENDANT]: Jane Doe…
"JANE DOE: …what I don't understand is why nothing changed…
"[DEFENDANT]: We were teenagers, [Jane Doe], but look-okay, look. Hold on. Hold on. Hold on. It did change. It did change. Because I went to look for help, okay? And I'll tell you one thing. I don't-right now I don't have any more answers to give you other-other than the- than the ones I'm giving you.… [¶] … [¶]
"[DEFENDANT]: … Unfortunately here where I am I'm not at liberty to speak in the way that you-you are able to there right now. You understand me? So I'm telling you right now that I don't want to fight anymore.
"JANE DOE: I don't either [defendant], don't see it as a fight…
"[DEFENDANT]: What I want to fix-what I want to fix-do you want me-Jane Doe, but you want to-this is very painful for me. For me-this hurts me a lot. And you want me to remember things again or for me to get into-I mean, please. It's difficult and painful…
"JANE DOE: …The memories-the memories I have of you-of you going in, using me…
"[DEFENDANT]: Okay.
"JANE DOE: …putting your fingers in my vagina during 10 damn years. Of going in-putting your penis in my anus and later until something came out of me there the only thing you said was, 'Why did that come out of you there?' And the only thing I said…
"[DEFENDANT]: Mm-hm.
"JANE DOE: …was 'I don't know.'
"[DEFENDANT]: Hm.
"JANE DOE: The humiliation-the pain of just being an object- not being anything to you and even so, [defendant], when I was 17 years old…
"[DEFENDANT]: Hm.
"JANE DOE: …you were already older-that you followed me from the bathroom and that you unlocked my room when I went inside to change. And just like that, so easily, you went in, you took off my panties and you started licking me. Those are the memories I have of you- starting to lick my vagina. Why-when I was your sister-why didn't all of that gross you out? Ten years. Huh? Listen to me, because that's something that I've never been able to say or scream out. Why?
"[DEFENDANT]: Mm-hm.
"JANE DOE: Tell me why. Tell me. Didn't you love me? Wasn't I your sister?
"[DEFENDANT]: You-you ask me questions (because of) mental disorder that had been done to me. But that's not why it happened- because of the mental disorder that had been done to me.
"JANE DOE: And that's what I want to hear-why-and that's what you're telling me.
"[DEFENDANT]: Jane Doe…
"JANE DOE: But it wasn't my fault, [defendant], what they did to you.
"[DEFENDANT]: No, it wasn't your-no-it wasn't your-just like it wasn't my-exactly. You're completely right.
"JANE DOE: But they were-for me…
"[DEFENDANT]: I don't…
"JANE DOE: …ten years, [defendant]. Ten years and you never stopped until I left the-the house."
Defendant told Jane Doe he did not want to talk about it anymore because it was very painful for him saying "I've felt really bad since a long time ago that I've been doing this." Defendant suggested that Jane Doe get help and see a psychologist like he does. Defendant told Jane Doe that he asked for forgiveness two times, but that it was not enough. He told her "I'm sorry. I told you. And I'll repeat it again and I said it to you recently, right?"
"JANE DOE: … what I want is to know if you felt bad for what you did when you were a kid, if you…
"[DEFENDANT]: How can you think-Jane Doe, when I'm telling you. I'm telling you that I've felt bad.
"JANE DOE: And as an adult[?]
"[DEFENDANT]: I've told you I've felt bad-I've felt bad. I can't-I mean, I don't-don't want to go into specifics because we're never going to finish. What I'm telling you is that for everything-and I-I mentioned it to you, right? For-for-for everything-I have felt bad-for everything, right? For everything."
B. Standard of Review and Applicable Law
The trial court has broad discretion to determine the relevance of evidence. (People v. Gurule (2002) 28 Cal.4th 557, 614.) Evidence is relevant if it has any tendency in reason to prove a disputed material fact. (Evid. Code, § 210; People v. Waidla (2000) 22 Cal.4th 690, 718 (Waidla).)
Evidence Code section 1221 provides "[e]vidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth."
"'"'[W]hen a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the party's reaction to it. [Citations.] His silence, evasion, or equivocation may be considered as a tacit admission of the statements made in his presence.'"' [Citations.] [¶] 'Whether the statement constitutes an adoptive admission is determined upon the facts and circumstances therein presented."' [Citation.] [T]here must be sufficient evidence to sustain a finding that (1) the defendant heard and understood the statement under circumstances normally calling for a response, and (2) the defendant adopted the statement as true by the defendant's words or conduct." (People v. Sample (2011) 200 Cal.App.4th 1253, 1262; accord, People v. Charles (2015) 61 Cal.4th 308, 322-323 [same]; see People v. Jennings (2010) 50 Cal.4th 616, 661; People v. Davis (2005) 36 Cal.4th 510, 535.)
"'To warrant admissibility [under Evidence Code section 1221], it is sufficient that the evidence supports a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation; whether [the] defendant's conduct actually constituted an adoptive admission becomes a question for the jury to decide.'" (People v. Riel (2000) 22 Cal.4th 1153, 1189-1190; accord, People v. Edelbacher (1989) 47 Cal.3d 983, 1011 (Edelbacher); People v. Preston (1973) 9 Cal.3d 313-314; People v. Pitts (1990) 223 Cal.App.3d 606, 850, superseded by statute on another ground as stated in People v. Levesque (1995) 35 Cal.App.4th 530, 536-537.) Whether a defendant's responsive conduct actually amounts to an adoptive admission becomes a question for the jury to resolve. (Edelbacher, supra, at p. 1011; Pitts, supra, at p. 850.)
A trial court's ruling on the admissibility of an adoptive admission is reviewed for abuse of discretion and must be upheld unless the decision is capricious or arbitrary. (Waidla, supra, 22 Cal.4th at p. 725.)
C. Analysis
Defendant argues his statements on the pretext call should not have been admitted at trial because they did not qualify as adoptive admissions under the circumstances and the call was irrelevant. In support, he asserts the conversation did not take place under circumstances where he could speak freely and was not afforded a fair opportunity to deny the accusation. Defendant notes the recorded phone call took place while he was on lunch break in his classroom at the school where he taught. Defendant told Jane Doe he could not talk freely because he was at school and children were due to enter momentarily. Defendant also argues the pretext statements were irrelevant to the charged offenses, which related to sexual penetration with another person who is under 18 years old because the conversation only discussed sexual activity that occurred when defendant and Jane Doe were children. Defendant claims that "[n]owhere does [defendant] acknowledge sexual activity after he turned age 18. Nowhere does [Jane Doe] specifically accuse him of sexual activity after [defendant] turns 18."
The People initially contend that defendant forfeited this claim by failing to object to the admission of the pretext statements on either of these grounds. They further contend the pretext call was relevant to the charges and the trial court did not err in admitting it. Additionally, the People note defendant does not argue he was prejudiced as a result of the admission of the pretext call, further barring him from relief. In any event, they assert defendant cannot establish prejudice.
Defendant concedes in his reply brief that "[a]side from the in limini [sic] motion to exclude the pretext phone call, trial counsel did not object to the introduction of the conversation." In response to the People's argument that defendant forfeited this claim, defendant replied that "[w]here a simple objection would have preserved the issue, an issue of [ineffective assistance of counsel] could be raised" and made known his intention to "address this issue by Petition for Habeas Corpus."
In the written motions in limine, the prosecution sought to admit the recorded calls and the defense sought to exclude the pretext statements under Miranda and requested an Evidence Code section 402 hearing to determine their relevance. At the pretrial conference, however, defendant did not object to the admission of defendant's pretext statements or request an Evidence Code section 402 hearing on its relevance. Instead, defense counsel submitted. The trial court noted defense counsel's concern regarding Miranda issues in the written in limine motion and found that Miranda was not implicated since defendant was not in custody when the pretext call was made. The trial court allowed the statements to be admitted. Since defendant failed to object to admission of the pretext statements as irrelevant or as adoptive admissions, defendant's claim on these grounds is forfeited. (See Evid. Code, § 353, subd. (a); People v. Larson (2011) 194 Cal.App.4th 832, 836 ["Normally, the failure to object forecloses consideration of the issue on appeal."].)
Even considering defendant's claim on the merits, the record does not show that the trial court abused its discretion when it admitted the statements in the pretext call as adoptive admissions. (See Waidla, supra, 22 Cal.4th at p. 725.)
First, the record does not support defendant's claim that circumstances prevented defendant from answering Jane Doe's questions or responding to her accusations. Instead, the record shows defendant consistently responded to Jane Doe's accusations throughout their entire conversation. As an example, in response to Jane Doe's statement that defendant sexually assaulted her for 10 years, defendant told Jane Doe "I'm sorry. I told you. And I'll repeat it again and I said it to you recently, right?" Defendant also responded, "I've felt really bad since a long time ago that I've been doing this." As such, the record demonstrates that defendant's environment did not preclude him from responding to Jane Doe's allegations. Indeed, a simple denial would have been easier and shorter than many of the responses defendant provided and would not have required defendant to divulge as much personal information if he did not want others to overhear. We conclude there is sufficient evidence in the record to support "a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation .…" (See Edelbacher, supra, 47 Cal.3d at p. 1011.) Therefore, the trial court did not abuse its discretion when it admitted the pretext statements. (See Waidla, supra, 22 Cal.4th at p. 725.)
Consequently, we conclude the trial court did not err in instructing the jury with CALCRIM No. 357, which instructs the jury it can only consider evidence as an adoptive admission if the record establishes certain predicate facts to support such a conclusion. (See People v. Combs (2004) 34 Cal.4th 821, 843.)
Additionally, defendant's claim that the pretext statements were not relevant to the issue in the case also fails. The record shows that when Jane Doe asked defendant if he felt bad for what he did to her when he was a kid and as an adult, defendant responded "I've told you I've felt bad-I've felt bad." Jane Doe also reminded defendant that the behavior lasted "[t]en years and you never stopped until I left the-the house." Jane Doe did not move out of the house until 1996, when she was about 21 years old. As such, Jane Doe specifically accused defendant of sexually abusing her when defendant was an adult and she was a minor, and defendant did not deny the accusations. We cannot conclude the court erred in concluding defendant's failure to deny these accusations had a "tendency in reason to prove [a] disputed material fact" in this case-that is, whether the charged conduct occurred. (See Evid. Code, § 210.) Rather, defendant's statements were relevant to the charged offenses and the trial court did not abuse its discretion in admitting them.
Even if we concluded the trial court erred in admitting the pretext call, defendant failed to argue he was prejudiced by any error in admitting the pretext call. (People v. Jenkins (2000) 22 Cal.4th 900, 950 [it is defendant's burden to demonstrate prejudice]; People v. Clark (2016) 63 Cal.4th 522, 570 [same]; People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 364, as modified on denial of rehg. (Oct. 1, 2014).)
II. Statute of Limitations Under Section 803, Subdivision (f)(1)
Defendant next claims there was insufficient independent evidence corroborating Jane Doe's allegations, which was necessary to support the jury's finding the statute of limitations was tolled pursuant to section 803, subdivision (f)(1). The People disagree, claiming Jane Doe's claims were clearly and convincingly corroborated by independent evidence of A.R.'s testimony and the pretext phone call. We conclude sufficient evidence supports the jury's finding.
A. Relevant Procedural History
On July 19, 2016, Jane Doe reported defendant's sexual misconduct to Turlock Police Officer Joseph Ramos; Jane Doe was over 21 years old at the time of the report. The Stanislaus County District Attorney filed a criminal complaint on July 17, 2017 and the Honorable Ricardo Cordova signed and issued an arrest warrant that same day. The information, filed on October 9, 2018, charged defendant in count II with sexual penetration of a minor with a foreign object (§ 289, subd. (h)) between September 6, 1991 through May 30, 1993. The jury convicted defendant of count II and found true the special allegation that the statute of limitations was extended pursuant to section 803, subdivision (f)(1).
B. Applicable Law and Standard of Review
"Notwithstanding any other limitation of time described in this chapter, if subdivision (b) of Section 799 does not apply, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that the person, while under 18 years of age, was the victim of a crime described in Section 261, 286, 287, 288, 288.5, or 289, former Section 288a, or Section 289.5, as enacted by Chapter 293 of the Statutes of 1991 relating to penetration by an unknown object." (§ 803, subd. (f)(1).)
Section 803, subdivision (f)(1) applies "only if all of the following occur:
"(A) The limitation period specified in Section 800, 801, or 801.1, whichever is later, has expired.
"(B) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual.
"(C) There is independent evidence that corroborates the victim's allegation. If the victim was 21 years of age or older at the time of the report, the independent evidence shall clearly and convincingly corroborate the victim's allegation." (§ 803, subd. (f)(2).)
"'When considering a challenge to the sufficiency of the evidence to support a 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. Lewis (2009) 46 Cal.4th 1255, 1289.) The substantial evidence test applies when we are asked to review the record to determine whether a jury properly found, by a preponderance of the evidence, that a criminal proceeding is timely under the statute of limitations. (People v. Wong (2010) 186 Cal.App.4th 1433, 1444; People v. Le (2000) 82 Cal.App.4th 1352, 1361; see People v. Ruiloba (2005) 131 Cal.App.4th 674, 682 (Ruiloba).)
C. Analysis
Defendant claims that the requirements of section 803, subdivision (f)(2)(C) that independent evidence corroborate the [Jane Doe's] allegations that the sexual conduct lasted beyond defendant's 18th birthday were not met because neither the pretext call nor A.R.'s testimony referenced specific dates. He further argues "[i]n effect, the prosecution was using statements of [Jane Doe] to corroborate the allegations of [Jane Doe]. This cannot be corroboration independent of [Jane Doe]." The People contend that the pretext call, along with A.R.'s testimony, provided sufficient independent evidence to support extending the statute of limitations. We agree with the People.
Here, A.R.'s testimony and the pretext phone call provided sufficient evidence to corroborate Jane Doe's allegations. First, A.R. testified regarding multiple incidents when defendant snuck into her and Jane Doe's shared bedroom at night and got into bed next to Jane Doe, which corroborated Jane Doe's allegations. Additionally, A.R. described a specific incident when the family was living in Turlock and the sisters had their own room with bunk beds, and defendant snuck into the room and onto Jane Doe's bed on the bottom. A.R. heard Jane Doe complain out loud that it hurt, and A.R. came down, turned on the light and caught defendant in bed on top of Jane Doe.
Although defendant complains that neither the pretext call nor A.R.'s testimony included dates of the incidents, both contained evidence corroborating Jane Doe's allegation that defendant sexually assaulted her on multiple occasions. (See Ruiloba, supra, 131 Cal.App.4th at p. 683.) In Ruiloba, the Third District Court of Appeal concluded a pretext phone call with the defendant, together with another minor victim's testimony that the defendant had possibly groped her and made a sexual invitation to her, were sufficient independent evidence to corroborate the victim's allegations under section 803, subdivision (f). (Ruiloba, supra, at p. 683 [formerly § 803, subd. (g)].) The defendant in Ruiloba argued the pretext call did not corroborate the charges by clear and convincing evidence because the conversation was not explicit enough to support any single act and only referred to "'some sort of intimacy [which] occurred between these two,'" and "'some kind of certainly immoral relationship'" far less "'the number of counts charged in this case.'" (Ruiloba, supra, at p. 684.) However, the Ruiloba court held that since the victim's allegation consisted of a description of multiple instances of abuse, spread over years of time, the corroboration did not have to corroborate each allegation in the criminal pleading, only the "'victim's allegation.'" (Id. at p. 683; accord, People v. Zandrino (2002) 100 Cal.App.4th 74, 85 [corroboration does not have to be sufficient to support a conviction.].) In other words, "[e]vidence of a person's propensity to do what the victim has alleged corroborates the victim's allegation." (Ruiloba, supra, at p. 683.) The court concluded "a reasonable trier of fact could conclude that [the] defendant and [the minor victim] were discussing a sexual relationship between themselves during [the victim's] minority [on the pretext call]. Although they did not discuss particular acts or dates, the tenor is clear. The fact [the call] corroborates any sexual acts corroborates all of [the victim's] allegations, because the call tended to prove [the defendant's] disposition toward [the victim] in particular." (Id. at p. 688.)
As in Ruiloba, we cannot conclude A.R's testimony or the pretext calls needed to refer to particular dates in order to sufficiently corroborate Jane Doe's testimony. (See Ruiloba, supra, 131 Cal.App.4th at p. 683.) Rather, here, based upon defendant's statements in the pretext call, a reasonable trier of fact could have concluded defendant and Jane Doe were discussing their past sexual relationship, which included the time when defendant was an adult, and corroborated Jane Doe's allegations. (See id. at p. 688; accord, People v. Smith (2011) 198 Cal.App.4th 415, 428 [concluding sufficient evidence to corroborate the victim's allegations where "[The] defendant made statements during the pretext call from which an inference could be drawn that [the] defendant engaged in sexual conduct with [the victim] when she was eight years old."].) Such evidence, coupled with A.R.'s testimony, supports the jury's conclusion clear and convincing evidence corroborated Jane Doe's allegations as necessary to support the extension of the statute of limitations.
Defendant relies on People v. Perry (1972) 7 Cal.3d 756 (Perry) to argue that the alleged adoptive admissions were not independent from Jane Doe's allegations; rather, they depended on Jane Doe's accusations. In Perry, the California Supreme Court noted,"[t]o corroborate the testimony of an accomplice, the prosecution must present independent evidence," that is, evidence that "tends to connect the defendant with the crime charged" "without aid or assistance from the testimony of the accomplice." (Id. at p. 769.)
People v. Perry, supra, 7 Cal.3d 756, overruled on other grounds in People v. Green (1980) 27 Cal.3d 1, 28.
First, the reasoning in Perry does not apply here as Perry addressed section 1111 as it relates to corroborating accomplice testimony and not in the context of tolling the statute of limitations under section 803. Thus, it is inapposite.
Additionally, the pretext statements used to find corroboration are not the victim's statements as defendant alleges, but defendant's own responses which could be viewed as admissions to the victim's allegations. Therefore, upon review of the record in the light most favorable to the judgment, we conclude sufficient independent evidence corroborates Jane Doe's allegations and supports the jury's determination that prosecution was timely commenced under section 803, subdivision (f). (See People v. Wong, supra, 186 Cal.App.4th at p. 1444; Ruiloba, supra, 131 Cal.App.4th at p. 682.)
III. Trial Court Did Not Err In Excluding Prior Criminal Allegations Regarding Jane Doe
Defendant claims the trial court erred by precluding O.'s allegations Jane Doe molested him when they were both minors. The People contend the trial court properly excluded this evidence under Evidence Code sections 782 and 352 because any probative value was outweighed by the potential for undue prejudice. We conclude the trial court did not abuse its discretion.
A. Relevant Factual Background
During motions in limine, the defense sought to admit testimony from O. of prior sexual misconduct by Jane Doe pursuant to Evidence Code section 782. The defense sought to introduce testimony of uncharged allegations that Jane Doe molested O. when he was a minor. The People filed a motion in limine to exclude such testimony as irrelevant to the charged offenses and unduly prejudicial.
At the hearing, defendant argued O.'s allegations were relevant to Doe's credibility because they provided a motive for her to make up the accusations against defendant as a way to cover up what happened between her and O. The People argued O.'s allegations had no bearing on Jane Doe's credibility, noting that O. did not come forward with these allegations until two and one-half years after the People filed charges against defendant. The People contend if Jane Doe were trying to hide something that happened with O., it would have made more sense to not come forward at all with allegations against defendant.
Additionally, the People argued O.'s allegations were irrelevant and the uncharged, uncorroborated allegations from O. were highly prejudicial and should be excluded under Evidence Code section 352.
The trial court ruled as follows:
"All right. On that, as it relates to [O.'s] and any prior allegation of either molest or some type of actual conduct by Jane Doe with him as he is a minor-and I don't have any specifics as to her age at the time-but as it relates to the evaluation regarding those allegations, it's-it wouldn't be any relevance towards the actual acts stated in the information, Count 1, Count 2, Count 3; none of those are allegations of force or nonconsensual allegation. Those are specifically age-based violations, and therefore, the only reason I would be admitting that type of conduct would be for the credibility for - - to counter the credibility of Jane Doe, and that would be under provisions of the evidence code and specifically whether or not it would attack [her] credibility.
"And a tough decision on that is, albeit [defendant] is facing some serious allegations, the alleged nature has made it abundantly clear, there's provisions of that you are to narrowly exercise your discretion in regards to this [Evidence Code section] 782 evidence, and at this point it seems more of a fishing expedition instead of a concrete defense as it relates to her credibility. It seems it's speculative at this point.
"And also as it relates to [O.] and his allegations against Jane Doe, I don't necessarily indicate that that would in any way defeat her credibility or counter her believability in the sense that-the only sense that I have from the filing is that he said it happened and she denied it and, therefore, that would put at issue the whole sexual conduct between [O.] and Jane Doe, and then we would have, in essence, a mini trial on that issue. And under [Evidence Code section] 352 I would have to deny the admission of that evidence. So as far as O. is concerned testifying as to prior sexual acts against him by Jane Doe, that is excluded under not only [Evidence Code section] 782 but also [Evidence Code section] 352."
B. Standard of Review and Relevant Law
Generally, evidence of a complaining witness's prior sexual conduct is inadmissible in a sex crimes case. (Evid. Code, § 1103, subd. (c)(1).) "This rule properly prevents the victim of sexual assault from being herself placed on trial." (People v. Rioz (1984) 161 Cal.App.3d 905, 916.) "Such evidence may be admissible, though, when offered to attack the credibility of the complaining witness, provided that its probative value outweighs the danger of undue prejudice and the defendant otherwise complies with the procedures set forth in Evidence Code section 782." (People v. Fontana (2010) 49 Cal.4th 351, 354 (Fontana); accord, People v. Mestas (2013) 217 Cal.App.4th 1509, 1514-1515 (Mestas).)
"The Legislature's purpose in crafting these limitations is manifest and represents a valid determination that victims of sex-related offenses deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy." (Fontana, supra, 49 Cal.4th at p. 362; accord, People v. Rioz, supra, 161 Cal.App.3d at pp. 916-917; Michigan v. Lucas (1991) 500 U.S. 145, 149-150.) By affording victims protection in most instances, these provisions also encourage victims of sex-related offenses to participate in legal proceedings against alleged offenders. (Fontana, supra, at p. 362, citing Letwin, "Unchaste Character": Ideology, and the California Rape Evidence Laws (1980-1981) 54 So.Cal.L.Rev. 35, 40, Advisory Com. Note to Fed. Rules Evid., rule 412, & former 28 U.S.C.) Accordingly, courts have properly exercised the discretion afforded by Evidence Code section 782 "narrowly" (People v. Chandler (1997) 56 Cal.App.4th 703, 708 (Chandler)), and "'[g]reat care must be taken to insure that this exception to the general rule barring evidence of a complaining witness' prior sexual conduct … does not impermissibly encroach upon the rule itself and become a "back door" for admitting otherwise inadmissible evidence.'" (Fontana, supra, at pp. 362-363, quoting People v. Rioz, supra, at pp. 918-919.)
Evidence Code section 782 requires a defendant to seek admission of such evidence by written motion, supported by affidavit, "stating that the defense has an offer of proof of the relevance of evidence of the sexual conduct of the complaining witness that is proposed to be presented and its relevance in attacking the credibility of the complaining witness." (Id., subd. (a)(1), (a)(2).) If the offer of proof is sufficient, the trial court shall order a hearing. (Id., subd. (a)(3); People v. Rioz, supra, 161 Cal.App.3d at p. 916.) The trial court may allow admission of the evidence if it finds the evidence "relevant pursuant to [Evidence Code] section 780, and is not inadmissible pursuant to [Evidence Code] section 352 .…" (Evid. Code, § 782, subd. (a)(4).)
Evidence Code section 782 vests broad discretion in the trial court to weigh the defendant's proffered evidence, prior to its submission to the jury, and to resolve the conflicting interests of the complaining witness and the defendant. (People v. Rioz, supra, 161 Cal.App.3d at p. 916.) Not only must a defendant's declaration establish that the proffered evidence is relevant to the victim's credibility, "the statute specifically reaffirms the trial court's discretion, pursuant to Evidence Code section 352, to exclude relevant evidence which is more prejudicial than probative." (Ibid.)
The trial court has broad discretion to determine the relevance of evidence. (Gurule, supra, 28 Cal.4th at p. 614.) Evidence is relevant if it has any tendency in reason to prove a disputed material fact. (Evid. Code, § 210; Waidla, supra, 22 Cal.4th at p. 718.)
Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124, abrogated on other grounds by People v. Leon (2020) 8 Cal.5th 831, 848.)
"Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Rodrigues, supra, 8 Cal.4th at p. 1124; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) We review the trial court's ruling for an abuse of discretion. (People v. Bautista (2008) 163 Cal.App.4th 762, 781- 782; Chandler, supra, 56 Cal.App.4th at p. 711.)
"'As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's [constitutional] right to present a defense. Courts retain … a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.'" (People v. Cudjo (1993) 6 Cal.4th 585, 611.) "It follows, for the most part, … the mere erroneous exercise of discretion under such 'normal' rules does not implicate the federal Constitution." (Ibid.) Accordingly, when defense evidence is erroneously excluded, the applicable standard of prejudice is generally that for state law error, as set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (Cudjo, supra, at p. 611.)
C. Analysis
Defendant claims the trial court erred when it excluded evidence of uncharged allegations from O., Jane Doe's younger brother, that Jane Doe molested him. Although defendant concedes that such evidence would have created a mini trial within the trial since Jane Doe denies the allegations, he alleges it would not have taken much time, would have been without much detail and would have created minimal prejudice under Evidence Code section 352. We cannot conclude the trial court abused its discretion in excluding such evidence.
First, though defendant argued Jane Doe's alleged misconduct against O. provided a motive for her to fabricate claims against defendant, the allegations of Jane Doe's alleged molestation of O. arose after Jane Doe reported the crimes charged against defendant, did not result in convictions, and were otherwise not confirmed. Additionally, the court did not err in concluding such evidence was not relevant to Jane Doe's credibility on the issue of consent because consent was not at issue in the case. (See Mestas, supra, 217 Cal.App.4th at p. 1518 [court did not err in excluding evidence under Evid. Code, § 352 "because it had very little probative value with respect to [the victim's] credibility"].) "Generally, evidence of prior sexual conduct goes to the question of the victim's credibility concerning lack of consent .…" (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1455.) And here, Jane Doe's allegations against defendant were age-based violations, not allegations based on force or nonconsent. (See People v. Hillhouse (2003) 109 Cal.App.4th 1612, 1619-1620 [penetration of a minor by foreign object makes no reference to a minor's ability or inability to consent to sexual contact; implementing public policy making the described act criminal without regard to such consent].) Therefore, the concept of consent was irrelevant to the charged conduct and the credibility of Jane Doe's testimony in this case. (Id. at p. 1619.)
Additionally, we cannot conclude the court abused its discretion in finding the relatively low probative value of O.'s allegations was outweighed by the concerns of undue prejudice to Jane Doe; thus, such evidence was subject to exclusion under Evidence Code section 352. As discussed, the relevance of O.'s allegations was limited, if not questionable. Furthermore, O.'s disputed, uncharged allegations of misconduct did not stem from a conviction, further reducing its probative value and increasing the potential for prejudice to Jane Doe. (See People v. Clark (2011) 52 Cal.4th 856, 931-932 ["Additional considerations apply when the proffered impeachment evidence is misconduct other than a prior conviction. This is because such misconduct generally is less probative of immoral character or dishonesty and may involve problems involving proof, unfair surprise, and the evaluation of moral turpitude."].) Additionally, although defendant argued O.'s allegations demonstrated Jane Doe had motivation to lie about the sexual abuse by defendant in order to cover up her abuse of O., defendant did not offer any specific information regarding O.'s allegations, such as Jane Doe's age at the time of these allegations, supporting the court's determination that the allegations were more of a "fishing expedition instead of a concrete defense as it relates to her credibility." (See Mestas, supra, 217 Cal.App.4th at p. 1518 ["purpose of an Evidence Code section 782 hearing is to establish the truth and probative value of the offer of proof, not to allow a fishing expedition based on sketchy and unconfirmed allegations"].) Accordingly, we cannot conclude the trial court abused its broad discretion in finding the potential for prejudice of O.'s uncharged allegations outweighed its limited probative value. (See People v. Rodrigues, supra, 8 Cal.4th at p. 1124.)
Defendant's reliance on People v. Wheeler (1992) 4 Cal.4th 284 to argue O.'s allegations of sexual misconduct against Jane Doe should have been admissible to challenge Jane Doe's credibility is misplaced. The California Supreme Court in Wheeler addressed the trial court's admission of a misdemeanor conviction for impeachment purposes under Proposition 8, which added section 28, former subdivision (d), the "'Truth-in-Evidence'" amendment, to article I of the California Constitution. (Wheeler, supra, at p. 291.) Here, unlike Wheeler, O.'s allegations against Jane Doe were not from a conviction and are raised in the context of Evidence Code section 782. Notably, the Wheeler court acknowledged "the latitude [Evidence Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad," and it held "impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value." (Id. at pp. 295-296, fn. omitted.) Therefore, for the reasons discussed, we conclude the trial court did not abuse its discretion when it excluded O.'s allegations that Jane Doe molested him when he was a minor. (People v. Bautista, supra, 163 Cal.App.4th at pp. 781-782; Chandler, supra, 56 Cal.App.4th at p. 711.)
People v. Wheeler, supra, 4 Cal.4th 284, was superseded in part by statute on other grounds as stated in People v. Duran (2002) 97 Cal.App.4th 1448, 1459-1460.
Article I, section 28 of the California Constitution was amended in 2008 pursuant to Proposition 9, renumbering subdivision (d) to subdivision (f).
IV. The Trial Court Did Not Abuse Its Discretion in Sentencing Defendant to a Felony Under Section 289, Subdivision (h)
Defendant notes that his sexual penetration conviction is a wobbler offense and he contends the trial court abused its discretion by imposing a felony sentence.
A. Relevant Facts
At the sentencing hearing, the trial court weighed factors for and against imposing a state prison sentence. The court considered that defendant had been a participant in society, has done some good things and was currently leading a law-abiding life. The court noted defendant had no prior record and no record since. Defendant indicated his willingness to comply with terms of probation.
The trial court noted its goal in achieving uniformity in sentencing and weighed the age of the allegations against similar cases where persons had abused their position of trust. The court specifically noted, "[t]he victim was in a vulnerable state. I disagree with you, [defense counsel], probably a hundred percent that this was a consensual situation. Based on the age and the fact that the victim Jane Doe was younger and in a situation-the defendant was in a situation of power over her, and therefore, she was vulnerable." The court also considered the emotional injury that Jane Doe endured based on defendant's actions.
The trial court concluded: "So at this point, I do weigh the fact that [defendant] is not remorseful and he has committed this act on a vulnerable victim and it's just a tremendous emotional injury. So probation is denied, and I am going to sentence him to two years' state prison." The trial court chose the middle term because it did not find many factors in mitigation or in aggravation. The trial court then suspended execution of the prison term for two years.
B. Applicable Law and Standard of Review
"The Legislature has classified most crimes as either a felony or a misdemeanor, by explicitly labeling the crime as such, or by the punishment prescribed." (People v. Park (2013) 56 Cal.4th 782, 789 (Park).) However, there is a special category of crimes that is punishable as either a felony or a misdemeanor, depending on the severity of the facts surrounding the commission of the crime. (People v. Superior Court (Perez) (1995) 38 Cal.App.4th 347, 360, fn. 17.) These crimes, referred to as "'wobblers,'" are "punishable either by a term in state prison or by imprisonment in county jail and/or by a fine." (Park, supra, at p. 789.)
The trial court has discretion to "reduce a wobbler to a misdemeanor either by declaring the crime a misdemeanor" when the sentence is imposed or upon the completion of probation. (Park, supra, 56 Cal.4th at p. 793; see § 17, subd. (b)(3).) Penetration of a minor with a foreign object is a wobbler punishable by "imprisonment in the state prison or in a county jail for a period of not more than one year." (§ 289, subd. (h).)
Because penetration of a minor with a foreign object (§ 289, subd. (h)) is a wobbler, the decision to sentence defendant to a county jail or state prison sentence was within the trial court's discretion. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977, superseded by statute on other grounds as stated in People v. Lynall (2015) 233 Cal.App.4th 1102, 1108 (Alvarez).) The trial court has broad discretion to declare a wobbler a misdemeanor. The purpose of such discretion is to allow the court to "impose a misdemeanor sentence in those cases in which the rehabilitation of the convicted defendant either does not require, or would be adversely affected by, incarceration in a state prison as a felon." (In re Anderson (1968) 69 Cal.2d 613, 664-665, (conc. opn. of Tobriner, J.).) A trial court's decision to treat a wobbler as a misdemeanor is not based on the notion that a wobbler offense is "'conceptually a misdemeanor.'" (People v. Tran (2015) 242 Cal.App.4th 877, 886.) Rather, it is "'intended to extend misdemeanant treatment to a potential felon'" and "'extend more lenient treatment to an offender.'" (Ibid.)
The decision to reduce a wobbler offense to a misdemeanor is "an intensely fact-bound inquiry" in which the court must consider "all relevant factors, including the defendant's criminal past and public safety .…" (Alvarez, supra, 14 Cal.4th at pp. 981- 982.) Other pertinent factors include "'the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.'" (Id. at p. 978.) Because the conduct underlying these offenses can vary widely in its level of seriousness, the Legislature has empowered trial courts to decide, in each individual case, whether the crime should be classified as a felony or a misdemeanor. In making that determination, the court considers the facts surrounding the offense and the characteristics of the offender. (Ibid.) Section 17, subdivision (b), read in conjunction with the relevant charging statute, rests the decision whether to reduce a wobbler solely "'in the discretion of the court.'" (Alvarez, supra, at p. 977.) A court has broad discretion under section 17, subdivision (b), in deciding whether to reduce a wobbler offense to a misdemeanor. Appellate courts will not disturb the court's decision on appeal unless the party attacking the decision clearly shows the decision was irrational or arbitrary. Absent such a showing, we presume the court acted to achieve legitimate sentencing objectives. (People v. Sy (2014) 223 Cal.App.4th 44, 66; see In re Anderson, supra, 69 Cal.2d at pp. 626-627 [the statute sets a broad generic standard].)
C. Analysis
Defendant contends the trial court abused its discretion when it did not reduce his conviction under section 289, subdivision (h), to a misdemeanor. Defendant points to his lack of criminal history, that he was also a victim, that the conduct was consensual, and that he has lived productively in the community in support of his contention. The People contend the trial court properly exercised its discretion based on relevant factors including the level of harm caused to the victim, the defendant's abuse of his position of trust, and defendant's lack of accountability or remorse.
We cannot conclude the trial court abused its discretion in imposing a felony sentence. Here, the trial court weighed and considered several relevant factors in sentencing defendant. The court considered that defendant did not have a criminal record and that he had been a positive member of the community. However, the trial court felt these factors were outweighed by the level of harm his actions caused the victim. The trial court found defendant took advantage of Jane Doe's vulnerability, as his younger sister, and his position of trust over her. The trial court disagreed with defendant that the sexual abuse was consensual, noting his actions caused lasting emotional harm to Jane Doe, evidenced by episodes of severe depression causing Jane Doe to seek the help of a mental health professional. Moreover, the trial court stated defendant failed to show remorse or take responsibility for his actions. Our review of the record demonstrates the trial court properly considered relevant facts surrounding the offense and characteristics of defendant. (See Alvarez, supra, 14 Cal.4th at pp. 978, 981-982.)
Defendant erroneously cites Cunningham v. California (2007) 549 U.S. 270 in arguing the trial court's reliance on aggravating factors not found to be true by the jury in imposing an aggravated sentence is unconstitutional. Cunningham is not applicable here since the trial court imposed the middle term and the factors were not being used to apply the aggravated term. (See § 1170, subd. (b).)
We conclude the trial court did not abuse its discretion in sentencing defendant to a felony conviction. (See People v. Sy, supra, 223 Cal.App.4th at p. 66.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: SNAUFFER, J., DeSANTOS, J.