Opinion
D074340
12-13-2019
THE PEOPLE, Plaintiff and Respondent, v. HUMBERTO A. MORALES TUDELA, Defendant and Appellant.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS267451) APPEAL from a judgment of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Reversed. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General for Plaintiff and Respondent.
Humberto A. Morales Tudela (Morales) was convicted by a jury of committing a lewd act on a dependent adult by a caretaker (Pen. Code, § 288, subd. (c)(2)) and two counts of attempting to commit a lewd act on a dependent adult by a caretaker (§§ 664, 288, subd. (c)(2)). We agree with one of Morales's contentions on appeal—i.e., that substantial evidence does not support the conclusion he was a "caretaker" within the meaning of section 288, subdivision (f)(1). We therefore reverse the judgment on this basis and decline to consider his remaining contentions.
Statutory references are to the Penal Code, unless otherwise indicated.
PROCEDURAL AND FACTUAL BACKGROUND
Morales was charged with two counts of committing a lewd act on a dependent adult by a caretaker (§ 288, subd. (c)(2); lewd act with L.R., count 1; lewd act with T.T., count 2) and two counts of attempting to commit a lewd act on a dependent adult by a caretaker (attempted touching of T.T.'s breasts, count 3; attempted movement of her hand to his genitalia, count 4).
During all of the charged offenses, Morales was working as a bus aide for City Link, a transportation company. D. Smith, a bus driver for City Link, testified that the individuals that City Link transports are largely clients of San Diego Regional Center—a facility that works with adults who have developmental disabilities—or, he "guess[ed]," affiliated with the Regional Center. The buses typically pick up riders from their care providers or group homes. S. Pacheco, City Link's office manager, helped manage City Link's clients. She would get referrals or requests from San Diego Regional Center with the client's name, address, and phone number, and then would place the client on a route. In scheduling routes, she usually spoke with the client's care provider, but there were other times she spoke directly to the client or "consumer[]," that is, the disabled rider.
Morales was hired as a bus driver for City Link, but, as there was no permanent route for him, he filled in as a bus aide when he was not needed to drive.
Pacheco was also responsible for hiring, firing, and training all City Link drivers and aides. City Link had about 16 or 17 drivers and about eight aides.
As a City Link bus aide, Morales was responsible for assisting clients who needed help boarding the bus; assisting passengers with their seatbelts; watching to make sure no one was fighting, spitting, or having seizures; and helping clean up if a passenger spit up on the bus.
T.T. became a client of San Diego Regional Center in 2001. At the time, she was diagnosed with mild "mental retardation," which is now described as "intellectual disability." T.T. was also a client of City Link. She rode a City Link bus to her job.
In May 2012, T.T. contacted her social worker at the Regional Center and complained about Morales bothering her. She also contacted City Link and complained. In response to T.T.'s complaint, City Link's office manager did not remove Morales from T.T.'s bus route or suspend him; she directed him to sit on the opposite side of the bus and to "stay away" from T.T. City Link subsequently received another complaint from T.T., now alleging inappropriate touching. City Link then removed Morales from T.T.'s bus route and placed him on another route.
The driver on Morales's new bus route (Smith) testified that he had heard about the complaints against Morales and was keeping an eye on him. One day while he was driving with Morales as his aide, he looked in the mirror and saw Morales kissing L.R., a dependent bus passenger. He could only see the back of Morales's head; he did not see his lips touching the passenger's. He reported the incident to City Link's office manager. Morales was suspended immediately. The next day, City Link's office manager called the Regional Center and Adult Protective Services.
T.T. identified Morales at trial and testified, "He was touching me down below where people are not supposed to be touching you. And . . . he told me not to tell anybody, which I did." He also "touched [her] up here," and tried to make her touch him, but she pulled her hand away from him.
The jury was instructed pursuant to CALCRIM No. 1060, Lewd or Lascivious Act: Dependent Person, that "[a] caretaker is an owner, operator, administrator, employee, independent contractor, agent, or volunteer of a public or private facility, that provides care for dependent persons or for those aged 65 or older."
The jury found Morales not guilty with respect to the lewd act involving L.R. (count 1), but guilty of the lewd act and two attempted lewd acts involving T.T. (counts 2-4). (§§ 288, subd. (c), 664.)
The trial court sentenced Morales to the upper term of three years on count 2 and concurrent one-year terms on counts 3 and 4.
DISCUSSION
Morales contends the evidence at trial fails to establish he was a "caretaker" within the meaning of section 288, subdivision (f)(1). He asserts the term "caretaker" means an owner, operator, administrator, employee, independent contractor, agent, or volunteer of certain enumerated "facilities" (§ 288, subd. (f)(1)); the enumerated facilities include health care and social service agencies but do not include transportation companies like City Link; and there is no evidence that Morales was an employee, independent contractor, or agent of any of the enumerated facilities.
A. Applicable Law
Section 288, subdivision (c)(2), provides: "[a] person who is a caretaker and commits [a lewd or lascivious act] upon a dependent person, with the intent described in subdivision (a) [arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the dependent person], is guilty of a public offense . . . ." (Italics added.) "The elements of lewd conduct with a dependent adult are: (1) the defendant was a caretaker of a dependent person; (2) the defendant, while serving as a caretaker, willfully committed a lewd or lascivious act on that person; and (3) the defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the dependent person." (People v. Chenelle (2016) 4 Cal.App.5th 1255, 1263 (Chenelle).)
Section 288, subdivision (f)(1) defines the term "caretaker" as follows:
" 'Caretaker' means an owner, operator, administrator, employee, independent contractor, agent, or volunteer of any of the following public or private facilities when the facilities provide care for elder or dependent persons:
"(A) Twenty-four hour health facilities . . . .
"(B) Clinics.
"(C) Home health agencies.
"(D) Adult day health care centers.
"(E) Secondary schools that serve dependent persons and postsecondary educational institutions that serve dependent persons or elders.
"(F) Sheltered workshops.
"(G) Camps.
"(H) Community care facilities, as defined by Section 1402 [sic] of the Health and Safety Code[], and residential care facilities for the elderly, as defined in Section 1569.2 of the Health and Safety Code[].
"(I) Respite care facilities.
"(J) Foster homes.
"(K) Regional centers for persons with developmental disabilities.
"(L) A home health agency licensed in accordance with Chapter 8 (commencing with Section 1725) of Division 2 of the Health and Safety Code.[]
"(M) An agency that supplies in-home supportive services.
"(N) Board and care facilities.[]
"(O) Any other protective or public assistance agency that provides health services or social services to elder or dependent persons, including, but not limited to, in-home supportive services, as defined in Section 14005.14 of the Welfare and Institutions Code.[]
"(P) Private residences."
Health and Safety Code, section 1502, subdivision (a) defines " '[c]ommunity care facility' " as "any facility, place, or building that is maintained and operated to provide nonmedical residential care, day treatment, adult day care, or foster family agency services for children, adults, or children and adults, including, but not limited to, the physically handicapped, mentally impaired, incompetent persons, and abused or neglected children . . . ."
Health and Safety Code, section 1569.2, subdivisions (o) and (p) define " '[r]esidential care facility for the elderly,' " or persons 60 years of age or over.
Section 1725 of the Health and Safety Code requires "[a]ll organizations that provide skilled nursing services to patients in the home [to] obtain a home health agency license issued by the department."
Section 288, subdivision (f)(2) defines " '[b]oard and care facilities' " as "licensed or unlicensed facilities that provide assistance with one or more of the following activities: (A) Bathing. [¶] (B) Dressing. [¶] (C) Grooming. [¶] (D) Medication storage. [¶] (E) Medical dispensation. [¶] (F) Money management."
Section 14005.14 of the Welfare and Institutions Code defines " 'in-home supportive services' " to mean "those services that are available to recipients of the In-Home Supportive Services Program as defined by the Director of Social Services . . . ."
Section 288, subdivision (g) states that subdivision (c)(2) "appl[ies] to the owners, operators, administrators, employees, independent contractors, agents, or volunteers working at these public or private facilities and only to the extent that the individuals personally commit, conspire, aid, abet, or facilitate any [lewd] act."
" 'It is well settled that the proper goal of statutory construction "is to ascertain and effectuate legislative intent, giving the words of the statute their usual and ordinary meaning. When the statutory language is clear, we need go no further." ' [Citation.] We consider the language in the context of the entire statute and the statutory scheme of which it is a part [citation], harmonizing provisions relating to the same subject matter, to the extent possible [citation]." (Satele v. Superior Court (2019) 7 Cal.5th 852, 858-859.) We independently review questions of statutory construction. (California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1041.)
"In assessing a claim of insufficiency of evidence, [this court's] task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Reversal for insufficient evidence is not warranted unless it appears " 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.) "The legal sufficiency of undisputed evidence to support a conviction is a question of law which we review de novo." (People v. Villalobos (2006) 145 Cal.App.4th 310, 316, fn. 3.)
B. Analysis
We agree with Morales's contention that his convictions for lewd and lascivious acts, and attempted acts, on a dependent person by a caretaker (counts 2-4) must be reversed because he is not a "caretaker" within the plain meaning of the applicable statute. (See Chenelle, supra, 4 Cal.App.5th at p. 1263 [being a "caretaker" is a required element of the charged offenses under section 288].)
The Legislature defined the term "caretaker" by delineating the categories of persons who qualify under the statute—"owner, operator, administrator, employee, independent contractor, agent or volunteer"—and further identifying the 16 different "public or private facilities" at which these persons must provide care. (§ 288, subd. (f)(1).) This is a two-part definition, and both prongs (type of person and type of facility) must be satisfied.
Here, the evidence regarding Morales's employment with City Link and his responsibilities as a bus aide are not sufficient to establish that he is a "caretaker" under section 288. Although Morales is an "employee" of City Link, he is an employee of a transportation company, not one of the "public or private facilities" listed in the statute. We acknowledge that Morales's responsibilities as a bus aide included providing some form of care for City Link's clients, and that some of those clients were dependent adults. As discussed ante, Morales assisted passengers in boarding the bus, buckled seat belts, oversaw and moderated behavior, and cleaned up after passengers. However, under the statute, it is not enough that Morales was interacting in this manner with dependent adults; for criminal liability under section 288, subdivision (c)(2), the caretaker must be an owner, operator, administrator, employee, independent contractor, agent, or volunteer of one of the specific, enumerated facilities. (§ 288, subd. (f)(1).) Had the Legislature intended to define the term caretaker more broadly to include all persons providing care to dependent adults, it could have done so.
The statute's specific, focused definition can be contrasted with section 368, which sets forth various crimes against elders and dependent adults, and which defines for its purposes the same term "caretaker" more broadly, as "a person who has the care, custody, or control of, or who stands in a position of trust with, an elder or a dependent adult." (§ 368, subd. (i).)
The Attorney General appears to concede that City Link itself is not one of the enumerated facilities under section 288, subdivision (f)(1). Nonetheless, the Attorney General contends that "[a]mple evidence supported the jury's conclusion that appellant acted as an employee, agent or contractor to one of the aforementioned facilities." The Attorney General points to the purported "business arrangement or contractual relationship between City Link and the [Regional] Center" (the nature of which the Attorney General admits is "unclear"), evidence that "the purpose of City Link was to facilitate the transportation requirements" of the Regional Center, and evidence "that reasonably demonstrated City Link and the Center to be engaged in some form of partnership for purposes of serving their dependent adult client base."
We disagree with the Attorney General's claim that sufficient evidence supports Morales's convictions under section 288. As we have already noted, Morales was an employee of City Link; he was not an employee of the Regional Center. There is no evidence that he falls within any of the other classes of persons who may qualify as a caretaker (i.e., an owner, operator, administrator, independent contractor, agent, or volunteer). We also reject the Attorney General's claim that the evidence presented at trial regarding the relationship between City Link and Regional Center is sufficient to support Morales's convictions. The evidence merely demonstrated that certain City Link clients were referred by the Regional Center. There was no evidence of a contractual relationship between City Link and the Regional Center. The Attorney General fails to explain how the fact that City Link "facilitate[d]" transportation for Regional Center clients "to and from their private or group homes, and their daytime care centers" establishes that Morales was an employee, agent, or independent contractor of the Regional Center, or any other enumerated facility. (Cf. People v. Thompson (2006) 142 Cal.App.4th 1426, 1429-1430 [defendant who was hired by a group home for the developmentally disabled was found guilty of committing a lewd and lascivious act by a caretaker on a dependent person, § 288, subd. (c)(2)].) Similarly, the Attorney General fails to explain how any alleged (but unsubstantiated) "partnership" or other business arrangement between City Link and the Regional Center would establish that Morales was an employee, independent contractor, or agent of the Regional Center. And there is insufficient evidence of a partnership, contractual, or other business relationship between Morales's employer and the Regional Center in any event. In any given case, one "may speculate about any number of scenarios that may have occurred . . . . A reasonable inference, however, 'may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.' " (People v. Morris (1988) 46 Cal.3d 1, 21, disapproved on another point in In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5.) Here, the actual evidence establishes that Morales was an employee of a type of business that is not among the categories enumerated in section 288, subdivision (f)(1).
An "employee" is one engaged "to do something for the benefit of the employer or a third person." (Lab. Code, § 2750.) An agent represents a principal in dealings with third persons. (Civ. Code, § 2295.) Agency is normally created by an express contract or authorization. (Civ. Code, §§ 2299, 2307.) An " 'independent contractor' " is " 'one who, in rendering services, exercises an independent employment or occupation and, represents his employer only as to the results of his work, and not as to the means whereby it is to be accomplished. . . . The chief consideration which determines one to be an independent contractor is the fact that the employer has no right of control as to the mode of doing the work contracted for.' " (Witkin, Summary of Cal. Law (11th ed. 2019), Agency & Employment, § 24, p. 73.) A "volunteer" is "a person who voluntarily undertakes or expresses a willingness to undertake a service." (Merriam-Webster's Collegiate Dict. (11th ed. 2006) at p. 1402.) There was no evidence that Morales falls within any of these categories vis-à-vis any enumerated facility.
At best, the evidence established only that a majority of City Link's clients were affiliated with the Regional Center, and the Regional Center referred clients to City Link—clients whose care providers City Link would then work with directly to coordinate transportation.
We are not concluding that an employee of an entity that provides transportation services for dependent adults could never be charged with violating section 288 as a matter of law; but the evidence here is not sufficient to support Morales's convictions under the statute.
In sum, the record does not support the conclusion that Morales was a "caretaker" within the meaning of section 288. For his conviction to be upheld, Morales would have to be an "owner, operator, administrator, employee, independent contractor, agent, or volunteer" of one of the 16 enumerated "public or private facilities." (§ 288, subd. (f)(1).) The enumerated facilities fall into categories such as health care and social services agencies, not a transportation company like City Link. (Ibid.) No evidence at trial supports the conclusion that City Link qualified as one of the enumerated public or private facilities, or that Morales was an employee, independent contractor, or agent of one of the enumerated facilities. We therefore reverse his convictions for committing and attempting to commit lewd acts on a dependent person by a caretaker under section 288, subdivision (c)(2) (counts 2-4).
We do not consider Morales's remaining claims that he is entitled to pretrial mental health diversion; it was error to exclude evidence of a victim's prior claim of sexual abuse, which Morales characterizes as false; the jury was erroneously instructed regarding testimony of a person with a disability; it was error to impose the upper term; and counsel provided ineffective assistance in failing to raise certain objections at trial.
DISPOSITION
The judgment is reversed.
GUERRERO, J. WE CONCUR: McCONNELL, P. J. IRION, J.