Opinion
C086493
05-06-2020
THE PEOPLE, Plaintiff and Respondent, v. DEMETRIO GALLARDO GARCIA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CM042985)
A jury convicted defendant Demetrio Gallardo Garcia of rape of an intoxicated person, and rape of an unconscious person. The trial court sentenced him to state prison for the upper term on the former count, and stayed the latter count pursuant to Penal Code section 654.
On appeal, defendant contests the exclusion of evidence that the victim, a teenager, had consensual sex with a boyfriend recently before the crime, that the trial court erred in imposing the upper term in disregard of the purported panoply of mitigating evidence, and that the second count of rape must be stricken rather than stayed. With respect to the latter contention, we allowed a supplemental claim that contrary Supreme Court authority cannot be applied to him retroactively. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We are not called upon to assess the sufficiency of the evidence or determine prejudice from any error. Accordingly, we simply tailor our account of the facts to the arguments.
In early April 2004, the then 16-year-old victim (born in Oct. 1987) encountered a cousin of her father at a store. She was not previously familiar with her. The cousin invited her to come visit and meet her children. Defendant was the cousin's husband. Defendant was drinking, and the victim had multiple beers as well over the course of the day. She spent most of her time catching up with the cousin and playing with the children. It was a small apartment.
The victim fell asleep on the sofa in the living room, fully clothed. She awoke to find defendant atop her having intercourse. She was now naked from the waist down. She pushed him off, grabbed her missing garments from the floor, and ran into the bathroom, trying to gather her thoughts. She did not make any attempt to clean herself up. She went back into the living room, where defendant was watching pornography on the television. She went back to the sofa to sleep because she did not have any other place to go.
In the morning when she woke, defendant was not around. She used the landline to call a women's support group to ask if it was rape when someone had sex with a person who was asleep. She told her cousin either at the home or on the ride to her grandmother's house about what had happened. She then told her mother, who was at the grandmother's home, who contacted the police. The victim admitted having convictions for failure to appear and for petty theft. She noted that at the time (April 2004) she had a boyfriend who was about her age.
An officer met with the victim and her mother. He took a statement, in which the victim said she had initially lay down in bed with her little second cousin after visiting with her grandmother down the street. She then found herself on the couch, where defendant was assaulting her. She had retrieved her clothes from the floor after rushing to the bathroom. The officer then took her to the hospital for an exam. She had not showered before the exam, and gave her clothing to the examiner. In a subsequent interview with a different detective, the victim admitted drinking a far larger amount of beer than what she had previously said in her mother's presence.
The examiner found fissures in the victim's vaginal tissues consistent with intercourse within the previous 48 hours. The examiner did not find any seminal fluid within the vagina of the victim, which was not unusual in a case of rape after a lapse of time. There was semen on the inside lower portion of her T-shirt, and in her underwear. DNA testing strongly indicated defendant as the source.
Detectives were unable to locate defendant despite surveillance of his places of work and his apartment. The case sat dormant until 2013, when a newly hired detective was assigned to it. The detective contacted the victim, but then lost touch with her for two years because she changed residences without a consistent phone number to reach her. In 2015, he happened to see her on the street. He also happened to see defendant getting into his car at his place of work, recognizing his face from a photo. At that time, he arrested defendant and obtained a DNA sample from him. Defendant told the detective he had abruptly left a long-time job to move to Lake Elsinore for another job for five or six years, and returned five years earlier. He denied committing a sexual assault, or even knowing the victim. (His wife noted that they had moved out of the apartment where the offense took place and moved in with cousins shortly afterward, and then left the area in October 2004, returning in late 2008.)
Defendant's wife asserted that she had received a letter from the prosecutor's office saying that there was insufficient evidence to support the charges, a point the prosecutor acknowledged in closing argument.
A defense expert asserted that the vaginal fissures could have taken a week to heal. Defendant denied having any contact with the victim, and had slept in the bedroom with his wife all night, outside of one trip to the bathroom. The victim had been socializing outside when he went to bed. On the following morning, he had masturbated into a rag or piece of paper and left it in the bathroom trash. He believed the victim had set him up. Defendant's wife supported his account, contending she was a light sleeper in a small apartment.
DISCUSSION
1.0 The Trial Court Properly Excluded Evidence of Other Sexual Conduct
At the outset of trial, defense counsel raised the issue about the preliminary ruling of the trial court to exclude introduction of evidence of sexual activity on the part of the victim, including a reference to a purported abortion. Counsel now asserted that all she wished to raise at trial was the fact that the victim indeed had been otherwise sexually active a couple of days before defendant's alleged assault on her. Counsel vaguely intimated that this information was somehow relevant to defendant's claim that the incident never happened. The prosecutor insisted that defense counsel proceed pursuant to Evidence Code section 782. Defense counsel acceded.
Undesignated statutory references are to the Evidence Code.
In the formal motion made in midtrial, defense counsel asserted only that exclusion of "evidence that [she] was sexually active" would deprive defendant "of presenting his full defense," without further elaboration. The trial court concluded such evidence did not have any relevance to the credibility of the victim, nor the DNA evidence of defendant's semen being present on the victim's clothing. It additionally concluded that introduction of the evidence would be more prejudicial to the victim than probative. (§ 352.)
Section 782 proscribes evidence of prior sexual activity of a victim, absent a sufficient sworn offer of proof pursuant to its procedure demonstrating the relevance of such evidence. (Id., subd. (a)(1) & (2).) The trial court, as in all matters regarding the admission of evidence, has broad discretion to exclude such evidence as irrelevant on the basis of the offer of proof without a further hearing. (People v. Rioz (1984) 161 Cal.App.3d 905, 916.)
It does not matter that the victim may have had even continuous sexual activity with her boyfriend. At issue was not her knowledge, as a 16 year old, of the details of sexual activity (in contrast with children offering accurate descriptions of what is thought to be outside their ken (see e.g., People v. Woodward (2004) 116 Cal.App.4th 821, 831)), and defendant's citation of such cases is beside the point, as are cases in which consent is at issue, or where evidence of injury could have resulted with sex from someone else close in time to a defendant's conduct. On the latter theme, even if it could be plausibly argued that the victim's vaginal abrasions were from having sex with her boyfriend, that was not the main issue. What was at issue is the corroboration of her account of rape through the presence of semen on her clothing linked through DNA to defendant, for which at trial he offered only the specious claim that the victim planted his ejaculate from the bathroom onto her clothing. This was not a situation of evidence that the victim had been a virgin such that defendant would need to rebut the inference that he must have been the cause of her vaginal abrasions. It would be an entirely different matter if DNA testing had shown any connection to the boyfriend. We therefore do not find the physical evidence of recent vaginal abrasions warranted exploration of whether the victim engaged in recent sexual activity, nor does other sexual activity raise any reasonable doubt regarding the DNA evidence indicating sexual contact with the victim. As a result, the trial court did not abuse its discretion in deciding to exclude this evidence that was not fundamental in the determination of guilt.
Defendant does not offer any basis for this court to accept his rank speculation on appeal that he could have masturbated over the victim while she slept, a theory not developed at trial, nor why the evidence of other sexual activity would somehow be relevant to this claim.
2.0 The Trial Court Properly Imposed the Upper Term
Defense counsel filed a statement of mitigation, supported with 20 testimonials that we do not need to relate. At the sentencing hearing, counsel emphasized the absence of a prior record other than for drunken driving, the otherwise law-abiding life defendant had led since the 12-year-old incident, and the assessment that he presented only a low risk of recidivism. In denying probation, the trial court cited the serious nature of the offense and the vulnerability of the victim. In imposing sentence, it acknowledged having considered the factors in the mitigation briefing (highlighting the absence of a criminal record), but decided the aggravating factors of planning, an abuse of a position of trust, and vulnerability had greater weight, and therefore imposed the upper term of eight years.
Citing an inapposite case in which the trial court explicitly stated (contrary to the record) that no mitigating circumstances were present (People v. Burney (1981) 115 Cal.App.3d 497, 505), defendant contends he is entitled to a new sentencing hearing. Defendant is manifestly wrong. To the contrary, it is presumed the trial court considered all the factors in mitigation before it, a presumption defendant does not overcome, and the court is not required to elaborate on its reasoning on the manner in which it evaluated them. (People v. Oberreuter (1988) 204 Cal.App.3d 884, 888.) We therefore reject this claim out of hand.
3.0 It was Proper to Convict Defendant of Both Offenses
Under aged authority, which this court followed as recently as 2010, a single act of intercourse could not be the basis of more than one conviction under Penal Code section 261. (People v. Smith (2010) 191 Cal.App.4th 199, 205, citing People v. Craig (1941) 17 Cal.2d 453, 458 (Craig).) Based on this authority, defendant contends we must strike one of his two convictions. This is not the proper remedy, even if this authority were still controlling (Craig, at p. 458; see People v. Soria (2015) 239 Cal.App.4th 123, 146, rev. granted Oct. 21, 2015 (S228653), transferred Mar. 15, 2017, subsequent opinion unpublished), but no matter.
People v. White (2017) 2 Cal.5th 349, 359 (White), decided almost two years before defendant's opening brief, overruled Craig, holding that a defendant is properly convicted for both rape of an intoxicated person and of an unconscious person, further concluding that this change in law did not amount to an unforeseeable expansion of criminal law that transgressed the restriction on ex post facto application to convictions that antedated its holding. (White, at pp. 357, 360.)
Although defendant failed to address this existing precedent in his original briefing, we nonetheless allowed him to file a supplemental brief that now acknowledges the White holding but challenges the application of it to him on due process grounds, citing Bouie v. Columbia (1964) 378 U.S. 347 . The case involved a judicial interpretation of a statute. The Supreme Court reversed the criminal trespass convictions of civil rights demonstrators. The state statute expressly prohibited " 'entry upon the lands of another . . . after notice from the owner or tenant prohibiting such entry' " (id. at p. 349) but the state court construed the statute to also embrace a refusal to leave on demand within the meaning of trespass (id. at pp. 349-350). The high court concluded that allowing such a conviction retroactively violated the prohibition under due process against statutes that are vague about what conduct constitutes a transgression, it being contrary to the actual words of the statute at the time of the conduct. (Id. at pp. 348-350, 356-358.)
Defendant also cites Clark v. Brown (9th Cir. 2006) 450 F.3d 898. As we are not bound to follow the holdings of federal courts other than the United States Supreme Court (People v. Linton (2013) 56 Cal.4th 1146, 1182, fn. 8), we do not need to discuss it. --------
White did not do any such thing. It did not abruptly make criminal any conduct that had previously been lawful; it simply rethought the metaphysically complex question of whether a single act can simultaneously constitute distinct crimes. Nothing about defendant's conduct was ever lawful: he had sex with a person who was both intoxicated and unconscious, both clearly proscribed under the statute. Thus, the protection under due process from vague criminal definitions does not have an application to his case, and we reject this belatedly raised argument.
DISPOSITION
The judgment is affirmed.
/s/_________
BUTZ, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
HOCH, J.