Opinion
G054426
05-22-2018
THE PEOPLE, Plaintiff and Respondent, v. FELIPE RABADAN REYNA, Defendant and Appellant.
Ellen M. Matsumoto, 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, Senior Assistant Attorney General, Michael P. Pulos and Joy Utomi, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CF2315) OPINION Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Ellen M. Matsumoto, 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, Senior Assistant Attorney General, Michael P. Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Felipe Rabadan Reyna of nine sexual offenses. On appeal, Reyna claims the trial court erred in admitting the victim's hearsay statements under the declaration against interest exception to the hearsay rule (Evid. Code, § 1230) by finding the victim was an unavailable witness. We disagree and affirm the judgment.
FACTS
Reyna, K.N., and K.N.'s daughter Jane Doe lived together with K.N.'s two children in a two-bedroom apartment. Reyna and K.N. had been living together for almost 15 years at the time of trial. Doe was born in April 2001, and she had lived with Reyna since she was very young. Reyna raised Doe as his daughter, and she was never told he was not her biological father.
In approximately December 2014, Doe revealed to her friend, A.B., that Reyna had molested her. One day at school A.B. could tell something was wrong with Doe. When A.B. asked Doe what was wrong, Doe made her promise not to tell an adult and told her that Reyna had been abusing her. Doe said she was afraid to tell her mother because she thought her mother would not believe her. Doe told A.B. that Reyna would make her pull down her pants and he would take out his penis and touch her vagina. This abuse would take place when her mother was gone and Reyna would come to her room. Doe would sometimes try to block the door, but there was no lock. Doe said the abuse was something that happened a lot and the touching was skin to skin. Doe used the word "'raping'" to describe what Reyna had been doing to her. About a week later, A.B. told her aunt about what Doe told her, and her aunt told A.B.'s mother, who reported the abuse to the school.
On January 26, 2015, Officer Michelle Jankowski met with Doe at school. Jankowski arranged for Doe to make a covert call to Reyna to confront him about the abuse and elicit incriminating statements from him. Doe called Reyna at his work. During the call Doe told Reyna that she wanted to talk about what he was doing to her and about the touching. Doe asked Reyna why he was touching her and why he was putting his fingers inside her. Reyna did not deny the conduct, but he promised he would not do it anymore. Later, Doe asked why he would put his fingers inside her when she was his daughter. Reyna responded, "I don't know, sweetie. I don't know. I was wrong. I might be sick. I won't do it again." She also asked, "Why do you like putting your - your mouth on my part?" Reyna replied, "I don't know sweetie. I don't know." Reyna admitted he began molesting Doe when she was nine years old. Doe told Reyna, "Putting your fingers and your part inside me can hurt me[,]" and "You scare me." Reyna said, "I'm going to - to stop touching you. I'm going to stop treating you badly. I'm going to - to earn your trust. I promise" Doe also told Reyna that when he spread her legs apart he hurt her leg and she had a bruise. The officer who assisted Doe with the covert call saw the bruise on Doe's leg.
Before ending the call, Doe asked Reyna if he was going to stop touching her, stop putting his fingers inside her, stop putting his "part" inside her, and stop touching me "down there." Reyna promised "to stop everything." Doe continued asking if he would stop touching her "down there" with his mouth, stop touching her breasts, and stop coming into her room. Reyna again said he was going to stop everything.
A compact disc recording of the call was played for the jury.
Officers arrested Reyna when he returned home from work that night and took him to the police station. After he was advised of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, Reyna made a statement that was also recorded.
Reyna admitted he began teaching Doe "things" when she was 10 years old but denied he ever kissed her. He would go into her room while she was sleeping. Reyna admitted touching Doe six or seven times. Reyna denied ever penetrating her vagina with his fingers. Reyna admitted two or three times he touched Doe's vagina trying to put his fingers into her vagina, but maintained he touched it over her clothes. Reyna said he would touch her slowly so she did not wake up. He denied attempting to penetrate Doe with his penis. Reyna admitted that on at least one occasion he told Doe to not say anything to her mother and to be quiet. A video recording of the interview was played for the jury.
An amended information charged Reyna with aggravated sexual assault of a child by sexual penetration (Pen. Code, § 269, subd. (a)(5), all further statutory references are to the Penal Code unless otherwise indicated (count 1)), aggravated sexual assault of a child by oral copulation (§ 269, subd. (a)(4) (count 2)), attempted forcible rape (§§ 664, subd. (a), 261, subd. (a)(2) (count 3)), and six lewd acts on a child under 14 (§ 288, subd. (a) (counts 4 through 9)).
A prior case arising out of the same facts was dismissed on the prosecution's motion when the prosecution advised the trial court it was unable to proceed because it could not secure Doe's presence. Following the dismissal, at the prosecution's request the court held a contempt hearing. The court heard evidence to determine whether K.N. was in contempt for failing to produce Doe for trial on August 30, 2016. K.N. explained she could not produce Doe because she was in Mexico with her biological father's family. K.N. received calls from Doe, but she did not have an address or a telephone number for her. She admitted giving Doe the money to travel to Mexico. K.N. first indicated Doe's biological father's name was Felipe, but then said it was Manuel. She said his last name was Ramirez and the only location she could give for him was Mexico. K.N. said Doe did not meet her biological father until she was in Mexico and Doe only knew her biological paternal grandparents from telephone calls.
The trial court inquired as to the birthdate of Doe's biological father, but K.N. testified she did not know the birthdate. K.N. also claimed she did not know where in Mexico her daughter was residing. The court was skeptical of K.N.'s testimony. K.N. gave Doe money to go to the middle of Mexico, where Doe had likely never been, to be with a man she had never met, who was allegedly her biological father. Nevertheless, the court did not find K.N. in contempt but agreed to issue an arrest warrant for Doe.
Prior to trial on this information, the trial court conducted an Evidence Code section 402 hearing on the admissibility of Doe's hearsay statements to A.B. The prosecution presented evidence of its due diligence to secure Doe's attendance. At the hearing, Orange County District Attorney Investigator Thomas Andrews testified as to the prosecution's due diligence beginning prior to the last trial date. The search for Doe began in May 2016, when the district attorney victim/witness advocate assigned to Doe was unable to contact her or her mother. Andrews investigated K.N. and determined she had rented a room from a woman in Santa Ana. The woman told Andrews that K.N. was renting a room with her three children, but indicated she had not seen Doe since the end of May 2016. Andrews repeatedly returned to the Santa Ana residence to determine Doe's whereabouts. Andrews estimated he went to the location six to eight times with no success. He also followed information from Doe's Facebook page that suggested she might work at Forever 21 but later concluded she had never worked there.
During the summer of 2016, Andrews contacted the Santa Ana School District to inquire about Doe's student status. He was informed Doe had been a Santa Ana High School student during the 2015-2016 school year. He was shown a document indicating Doe had relocated out of the country at the end of that school year. Andrews asked the school resource officer to advise him if Doe appeared at school. The school advised Andrews a "red flag" would be placed in her file so he would be contacted if she appeared. Andrews checked with Doe's school on August 23, 2016, the day before school started, to see if she had enrolled, but she had not.
On August 24, 2016, Andrew returned to the Santa Ana residence and confirmed K.N. still lived there. Two residents in K.N.'s home told Andrews they had not seen Doe since prior to summer. Andrews was able to determine where K.N. was working. Andrews, accompanied by a Spanish speaking officer, went to K.N.'s workplace and served her with subpoenas for her and Doe's appearance at the August 30, 2016, trial date. K.N. was very agitated and initially did not want to accept the subpoenas. She eventually grabbed the papers from the Spanish speaking investigator's hand.
Based on a single Facebook photo posted on August 24, 2016, Andrews believed Doe might be in Acapulco, Mexico. Andrews later learned Doe's post from Acapulco was no longer on Facebook. Andrews testified he subpoenaed K.N. for the current trial and she was ordered back a few days later. When K.N. did not show up as ordered by the court, the trial court issued a warrant for her arrest. Over the next four days, Andrews made efforts to have K.N. arrested to no avail. The court admitted into evidence a transcript of the previous contempt hearing.
The trial court found the prosecution had used reasonable diligence, stating that it did not see anything more the prosecution could have done to locate Doe after hearing Andrews' testimony. The court began by indicating that because Doe was a juvenile, her attendance needed to be secured by her mother, K.N. The court noted K.N. testified at the contempt hearing she had no way of contacting Doe and she gave custody of her daughter to her daughter's biological father. The court opined Doe was beyond the reach of the court and inquired of counsel as to whether they were aware of any process that would allow the court to secure Doe's presence at trial. The court noted it had no information as to where in Mexico Doe might be and K.N. was not providing any helpful information as to the biological father's name.
Reyna's counsel suggested the Facebook post could possibly be further explored. The court responded she did not believe Facebook would provide user information even if subpoenaed. The court said the prosecution could have asked that Doe be held in custody pending trial, but that request was not made. The court concluded K.N. had voluntarily absented herself. It observed a warrant had been issued for K.N.'s arrest. Ultimately, the court concluded there was nothing else the prosecution could be expected to do. It found the prosecution had exercised due diligence in securing Doe's attendance at trial and found Doe unavailable for purpose of Evidence Code section 240, subdivision (a)(4). The court additionally found the statements Doe made to A.B. were sufficiently trustworthy to be admissible.
At trial, A.B. testified to the conversation she had with Doe as described above. During his testimony, Reyna insisted that during his call with Doe, he only affirmatively replied to her accusations because he was at work with clients and she was threatening not to come home. He denied doing any of the things Doe had accused him of during the call. Reyna claimed he lied in his statement to the police because he was angry at his wife and he wanted her to hate him as much as he hated her.
The jury convicted Reyna of all counts. The trial court sentenced him to a total of 43 years to life in prison. On counts 1 and 2, the court imposed consecutive terms of 15 years to life. The court imposed one year on count 3, and two years each on counts 4 through 9, for a total determinate term of 13 years. Reyna filed a timely notice of appeal.
DISCUSSION
Reyna's sole claim on appeal is the trial court erred when it found Doe was unavailable and allowed admission of Doe's hearsay statements to A.B. as a declaration against interest pursuant to Evidence Code section 1230 and we must reverse counts 1 and 2. Reyna asserts Doe was an American citizen who fled to Mexico and the court erroneously believed it had no ability to compel Doe's presence at trial. He contends the court erred by finding the prosecution had exercised due diligence to find Doe in Mexico. We disagree.
"'"The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution's witnesses. [Citations.] That right is not absolute, however. An exception exists when a witness is unavailable . . . . Under federal constitutional law, such testimony is admissible if the prosecution shows it made 'a good-faith effort' to obtain the presence of the witness at trial." [Citations.]'" (People v. Fuiava (2012) 53 Cal.4th 622, 674-675 (Fuiava).) "'We have said that the term "due diligence" is "incapable of a mechanical definition," but it "connotes persevering application, untiring efforts in good earnest, efforts of a substantial character." [Citations.] Relevant considerations include "'whether the search was timely begun'" [citation], the importance of the witness's testimony [citation], and whether leads were competently explored [citation].' [Citation.]" (Id. at p. 675.)
We independently review whether a witness was unavailable to testify at trial. (People v. Foy (2016) 245 Cal.App.4th 328, 339 (Foy).) Under this standard, a reviewing court defers to the trial court as to factual findings, to the extent that the findings are supported by substantial evidence, but "'independently review[s] whether the facts demonstrate prosecutorial good faith and due diligence.' [Citation.]" (Ibid.)
Fuiava, supra, 53 Cal.4th 622, is instructive. In that case, the detective began looking for the witness two weeks before the start of trial. He checked her two last known addresses, DMV records, and hospital and jail records in Los Angeles County on a "'pretty regular basis.'" (Id. at p. 676.) The detective tried to locate the witness's brother. (Id. at p. 677.) He also gave patrol deputies in the relevant neighborhood a photograph and physical description of the witness. (Id. at p. 676.) The court stated that the detective "began the search a reasonable period of time before the trial was to commence" and concluded the prosecution exercised reasonable diligence under the circumstances in attempting to locate the witness. (Ibid.)
Here, the investigator repeatedly tried to locate Doe at her home and at her work. Additionally, the investigator went to her last known school and asked the school resource officer to contact him if Doe returned to school. Similar to Fuiava, the prosecution exercised reasonable diligence under the circumstances in attempting to locate Doe.
Reyna primarily relies on five cases to support his argument the prosecution did not demonstrate due diligence. He relies on People v. Herrera (2010) 49 Cal.4th 613 (Herrera), People v. Enriquez (1977) 19 Cal.3d 221 (Enriquez), People v. Linder (1971) 5 Cal.3d 342 (Linder), Foy, supra, 245 Cal.App.4th 328, People v. Sandoval (2001) 87 Cal.App.4th 1425 (Sandoval), and People v. St. Germain (1982) 138 Cal.App.3d 507 (St. Germain). We conclude none of the facts in these cases are akin to the facts here.
Criticized on the due diligence standard to the extent inconsistent in People v. Cromer (2001) 24 Cal.4th 889, 901, footnote 3. --------
In Herrera, supra, 49 Cal.4th at page 619, the witness had been deported to El Salvador after the preliminary hearing and was not present at trial. The prosecution sought to secure the witness's attendance through INTERPOL. (Id. at p. 620.) INTERPOL is the agency in El Salvador that would search a database for the witness and send officers out. (Ibid.) The prosecution was informed that even if the witness was located, El Salvador had no treaty with the United States and would not extradite him. (Ibid.) The California Supreme Court found the witness's preliminary hearing testimony was properly admitted. (Id. p. 623.)
There is nothing in this record to suggest any database existed that would assist the Mexican authorities in locating Doe. She was not a Mexican citizen and had no deportation record. There were no reliable clues as to where in Mexico Doe might be residing. Thus, Herrera is inapt, and Reyna's reliance on it is misplaced.
In Enriquez, supra, 19 Cal.3d at page 234, the witness appeared on the first day of trial, but the case was trailed to the following day. The witness was ordered to return, but he failed to appear, and the trial court issued a bench warrant. Trial began two months after the disappearance of the witness. The prosecution sought to introduce the witness's preliminary hearing testimony but offered no testimony on the issue of due diligence. (Ibid.) The Enriquez court found a lack of due diligence when the "only actions undertaken by the prosecution . . . was to request issuance of a bench warrant and . . . to ask the absent witness' mother where he might be located." (Id. at p. 236.) The court found the prosecutor had exhibited "casual indifference" rather than diligence because it made no effort to serve the warrant at the witness's mother's home, to locate him through a school he said he planned to attend, or to try and locate him through farm labor employers or employee organizations. (Ibid.)
Here, however, the efforts of the prosecutor and, on his behalf, the police cannot be characterized as casually indifferent. The investigator tried to locate Doe at her home, school, and work. Therefore, Enriquez too is inapt.
In Linder, supra, 5 Cal.3d at page 345, defendant attempted to read into the record at his new trial a transcript of testimony given by his former wife during a previous trial on the same charges which had ended in a mistrial. The trial court refused to admit the evidence because the it was not until the day before the second trial was scheduled that defendant delivered to the sheriff a subpoena to be served upon his former wife. (Id. at p. 346.) The appellate court reversed finding the trial court's peremptory exclusion of the testimony on the ground defendant's delivery of the subpoena occurred only the day before the trial, "without a consideration of the cumulative efforts made by his attorney to locate the witness, was clearly erroneous." (Id. at p. 347.)
Again, we find little similarity between the Linder facts and the case before us. Here, the trial court held an extended hearing on the due diligence issue, and after considering various factors, the court determined the prosecution established it had exercised due diligence.
In Foy, supra, 245 Cal.App.4th at pages 339-340, the prosecution insisted there was no obligation to show due diligence because the witness was living out of state and was thus unavailable. The court tentatively agreed but held a hearing to determine what efforts the prosecution made to secure the witness's attendance. (Id. at pp. 339-340.) The prosecution indicated it sent three e-mails to the witness asking she contact the prosecution and indicated it would arrange for her travel from Connecticut to California. When no response was received, the prosecution contacted the leasing company associated with the witness's address and asked if the witness still lived there. About one hour and a half later, the prosecution received an e-mail and telephone call from the witness. (Ibid.) The prosecution inferred the witness did not feel like coming to California to testify. (Id. at p. 341.) "[The prosecution] was familiar with the Uniform Act to Secure the Attendance of Witness from without the State in Criminal Cases's [citation] subpoena process for out-of-state witnesses, but did not attempt to use its procedures or contact any authorities in Connecticut." (Foy, supra, 245 Cal.App.4th at p. 341.) The Foy court held the trial court erred by allowing admission of a witness's conditional examination testimony because the prosecution did not establish due diligence. (Id. at p. 350.)
Foy is inapposite. Unlike the prosecution in that case, here the prosecution had no e-mail address and no physical address for Doe in Mexico. It did not even know the city in Mexico where Doe was residing.
In Sandoval, supra, 87 Cal.App.4th at page 1432, the prosecution had contact with the witness, who was living in Mexico. The witness stated he would be willing to testify if he could get a passport and visa to enter the United States legally. (Ibid.) The trial court found the witness unavailable because he was in Mexico and was a Mexican citizen. (Id. at pp. 1432-1433.) The appellate court reversed noting, "to satisfy the confrontation clause, the prosecution must make a reasonable, good faith effort to obtain the witness's presence at the trial." (Id. at p. 1443.) The court reasoned "the prosecution had several reasonable alternatives it could have pursued to obtain [the witnesses's live testimony at trial." (Ibid.) For example, the prosecution could have relied on the Treaty on Cooperation Between the United States of America and the United Mexican States for Mutual Legal Assistance (Mexico-United States: Mutual Legal Assistance Cooperation Treaty, Dec. 9, 1987, Sen. Treaty Doc. No. 100-13, eff. May 3, 1991, 27 I.L.M. 443 (the Treaty), which it failed to do. (Sandoval, supra, 87 Cal.App.4th at p. 1439.)
Reyna relies on the Treaty to argue the prosecution did not exercise due diligence here. But in Sandoval the witness said he was willing to travel to California to testify. Here, Doe expressed no such willingness, indeed the prosecution could not locate her despite repeated efforts. The Sandoval court recognized the "power to compel is merely one factor to consider in determining whether such effort would be futile and therefore need not be undertaken." (Sandoval, supra, 87 Cal.App.4th at p. 1441.) Based on the record before us, the prosecution's effort to use the Treaty to compel Doe's testimony would have been futile, and therefore, we find Sandoval inapt.
Finally, in St. Germain, supra, 138 Cal.App.3d at page 516, the prosecution was permitted to introduce portions of the preliminary hearing testimony of two witnesses over the defense's objection. One witness was a resident of Holland. (Ibid.) The other testified her "home" was in Willemstad, Curacao, but she had a "'green card,'" which meant she was a permanent resident of the United States. (Ibid.) To establish due diligence, the prosecution maintained it mailed letters by registered mail to the witnesses in Holland and Curacoa. In the letters, the witnesses were requested to call the prosecution collect upon receipt of the letter and inform the prosecution whether they would be able to come to San Francisco to testify at the trial set 10 days later. The prosecution received a call three days before trial. During the conversation, the witnesses stated they had left San Francisco for New York and had returned to Holland about four months ago. Although they received the district attorney's letter several days ago, they were unable to come to San Francisco because they purchased a new home and acquired several animals; that there had been a recent death in the family; and finally, because they were suffering "'financial hardship'" resulting from the incident in San Francisco. Based on this evidence, the trial court found that the prosecution had established unavailability of each witness. (Ibid.)
The St. Germain court found the prosecution's efforts to secure the presence of the Curacoa witness did not constitute due diligence because the prosecution failed to attempt to procure the witness's attendance by the court's process. The court noted the prosecutor had available the remedy of a subpoena to be issued by the federal courts requiring the appearance of the Curacoa witness. (St. Germain, supra, 138 Cal.App.3d at p. 517.) The court concluded the prosecution exercised due diligence with respect to the Holland witness because he was a citizen of another country with which there was no treaty or subpoena power. (Id. at p. 518.)
Again, these facts are significantly different from the situation where the prosecution had no communication with Doe and no information as to her location other than "Mexico." We find St. Germain unavailing.
Reyna also claims his confrontation clause rights were violated without making any reasoned argument to support his claim. The claim is forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793.) Assuming for the sake of argument there was error, it was harmless. "Reversal is required unless the record shows beyond a reasonable doubt that [defendant] was not prejudiced. [Citations.]" (Foy, supra, 245 Cal.App.4th at p. 350.) During the covert call Reyna made numerous unrefuted statements about digitally penetrating and orally copulating Doe. Additionally, during his interview with police, Reyna admitted attempting to put his fingers inside Doe's vagina through her pajamas. Based on this evidence we are convinced beyond a reasonable doubt any error was harmless.
In conclusion, based on all the above, we find the trial court's factual findings were supported by substantial evidence. We independently find the facts demonstrate the prosecution acted in good faith and exercised due diligence. Accordingly, the trial court did not err by allowing A.B. to testify as to Doe's statements.
DISPOSITION
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: MOORE, J. THOMPSON, J.