Opinion
F077992
06-30-2020
THE PEOPLE, Plaintiff and Respondent, v. HECTOR FRANCISCO BAUTISTA, Defendant and Appellant.
Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RF007905A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Thomas S. Clark, Judge. Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Hector Francisco Bautista was convicted by jury of sexual intercourse and oral copulation with a minor. The issues in this appeal arise from his inability to impeach the victim's trial testimony with a transcript of her prior testimony at an Evidence Code section 402 hearing. He was unable to impeach the victim with the transcript because the court reporter from the section 402 hearing did not prepare a transcript and was on vacation during the trial.
Undesignated statutory references are to the Evidence Code.
Bautista moved to continue the trial to a date the transcript could be available. The trial court denied the motion. He then moved for a mistrial which the court also denied. The court ultimately instructed the jury to disregard the section 402 hearing testimony referenced during the trial. Bautista believes the court erred in denying the motions and in its instruction to the jury.
Aided by the full record on appeal, we discern no errors. The judgment is affirmed.
BACKGROUND
Charges
The Kern County District Attorney charged Bautista with three crimes: Unlawful sexual intercourse with a minor (Pen. Code, § 261.5, subd. (c); count 1), oral copulation with a minor (Pen. Code, § 288a, subd. (b)(1); count 2), and attempting to dissuade a victim from reporting a crime (Pen. Code, §§ 667 & 136.1, subd. (b)(1); count 3). Count 3 was dismissed immediately before trial commenced.
Section 402 Hearing
Outside the jury's presence, the victim testified she engaged in oral copulation with Bautista during an uncharged incident occurring in a separate county. She further testified they engaged in sexual intercourse which was defined as "penis and vagina sex ...." She then acknowledged previously telling an investigator there was no intercourse during that incident but rather Bautista placed his penis against her vagina without penetration.
Trial Evidence
The victim testified she moved with her family into Bautista's home. Ultimately, Bautista and the victim engaged in sexual intercourse "[a]t the very least ten" times. They engaged in oral copulation "[a]t least maybe five times." She made various statements prior to trial inconsistent with this testimony. For example, she previously disclosed to investigators she engaged in sexual intercourse with Bautista "between three and ten times." Prior to that, she had told her mother the intercourse occurred just twice.
The victim inconsistently described the physical manner in which sexual intercourse occurred. This inconsistency was compounded by a discrepancy between her testimony describing the intercourse during a particular incident occurring in one manner, and a separate eyewitness describing the same incident in a different manner.
The victim also testified regarding a trip with Bautista to a Six Flags amusement park. She testified they held hands and kissed while at Six Flags. But in an interview prior to trial, she denied kissing or holding hands while at Six Flags and instead explained "when he was dropping her off at the house, he gave her a kiss good-bye."
In relation to the uncharged prior incident, the victim denied any sexual intercourse. She testified Bautista "rubbed his penis on" her vagina but without penetration. Defense counsel questioned the victim about this apparent inconsistency with her section 402 hearing testimony. The victim did not recall previously testifying, during the section 402 hearing, to engaging in "vaginal intercourse" on this occasion. Counsel followed up by asking, "[D]o you recall stating that you and Mr. Bautista did have vaginal intercourse" during the uncharged incident? The victim replied, "That's not what I said."
Verdict and Sentence
Bautista was convicted of counts 1 and 2, unlawful sexual intercourse and oral copulation with a minor. He was required to register as a sex offender and sentenced to serve two years in prison, suspended on the condition he serve one year in county jail and successfully complete three years of supervised probation.
DISCUSSION
Bautista presents several related issues arising from his inability to impeach the victim with her prior section 402 hearing testimony. Specifically, he claims the court denied him due process by denying the motion to continue the trial to a date the transcript could be available, denying an accompanying motion to declare a mistrial, and failing to instruct the jury it must accept the prior section 402 testimony as "inconsistent and ... exonerating." We address each issue in turn.
I. The Motions Were Properly Denied
Bautista was unable to confront the victim with a transcript of her prior section 402 hearing testimony because the court reporter responsible for transcribing the testimony was unavailable. He moved to continue the trial to a date the court reporter could be available. The court denied the motion. Bautista subsequently moved for a mistrial. The court likewise denied the motion. We find no error in denying either motion.
A. Additional Background
Bautista's counsel moved to continue the trial to make available the section 402 hearing transcript. Defense counsel argued the section "402 [h]earing testimony [was] extremely important and relevant to the defense's case." Counsel believed the victim's section 402 hearing testimony was "completely contradictory to her story on the stand, and it goes to her credibility as a witness."
The prosecutor argued the victim "made a statement that she had sex with the defendant during the 402 and then it was clarified ... the defendant placed his penis on her vagina but did not actually penetrate." The prosecutor conceded "there was some inconsistency."
The court concluded the victim "made an ambiguous statement about whether or not sex had occurred ...." The court believed the victim "very quickly clarified her testimony ... that he attempted sexual intercourse," which was "consistent with her testimony in front of the jury." The court proceeded to deny the motion for two reasons: "First ... the testimony ... ultimately was consistent ...." Second, "the defense attorney ... very skillfully highlighted for the jury numerous other inconsistent, prior inconsistent statements, so" there was no prejudice.
Defense counsel then argued the victim's testimony was not clarified. The court reiterated it was denying the motion because Bautista was "not prejudiced" because the victim's testimony "ultimately was consistent with her testimony in front of the jury, and particularly in the context of the numerous other prior inconsistent statements ... elicited in front of the jury ...."
Bautista quickly moved for a mistrial by adopting the identical argument presented in conjunction with the motion to continue. The court took the mistrial motion under submission and remained hopeful any "potential prejudice [could] be ameliorated by a stipulation" between the parties.
Later, the court announced its tentative ruling was to "deny the [mistrial] motion for the same reasons and lack of prejudice that [it] referred to when [it] denied the motion for a continuance." In the event the court followed through with its tentative ruling, defense counsel requested "a special jury instruction" to explain why the victim was not confronted with a transcript of her previous testimony.
Defense counsel subsequently explained a defense investigator was present during the section 402 hearing. The investigator's notes indicated the victim first testified to sexual intercourse and subsequently acknowledged she had previously denied sexual intercourse during a prior interview. There was no attempt to offer the defense investigator as a witness. The court denied the mistrial motion.
Consistent with defense counsel's request, the court instructed the jury the victim
"testified in a hearing outside the presence of the jury. During that hearing, both Counsel had the opportunity to question [the victim] about the uncharged incident ....The court's intent was "to prevent" the jury "from speculating" defense counsel "must have been incorrect" about the victim's prior testimony at the section 402 hearing.
"The court reporter who transcribed that hearing is now out of state on vacation. I have attempted to contact her and tried to obtain a copy of the transcript from that hearing. Unfortunately, due to her absence, I am unable to access her notes or the transcript or to make that information available to you for your evaluation. You are not to speculate as to what [the victim] did or did not say in that hearing."
During jury deliberations, the jury wrote a note inquiring if the section 402 hearing "testimony ... without the jury being present has enough [r]elevance that it should seen [sic] before making any [j]udgements?" The court responded by instructing the jury the testimony "outside the presence of the jury may not be considered. Do not speculate as to or discuss what [the victim] may or may not have testified about in that hearing. The jury is to render a verdict based only on the evidence that was actually admitted and the instructions on the law."
B. Motion to Continue
We agree with Bautista the victim's prior testimony describing sexual intercourse was not clarified. The victim first testified sexual intercourse occurred. She then testified she told investigators there was no intercourse. That inconsistency was never clarified. By denying the motion to continue, the court denied Bautista the opportunity to cross-examine the victim regarding the inconsistency.
Nonetheless, we discern no abuse of discretion. " '[T]he decision whether or not to grant a continuance of a matter rests within the sound discretion of the trial court. [Citations.] The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked.' " (People v. Anderson (2018) 5 Cal.5th 372, 397.) "Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)
A "trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance .... [U]nless the defendant can show that the prohibited cross-examination would have produced "a significantly different impression of [the witnesses'] credibility" [citation], the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment." (People v. Dalton (2019) 7 Cal.5th 166, 217 (Dalton).)
The court here denied the motion to continue because there were "numerous other ... prior inconsistent statements ...." Although this denial implicated Bautista's constitutional right to cross-examine witnesses, the court found that the restricted cross-examination here was marginally relevant in light of several other inconsistencies on materially similar topics. Admitting the section 402 hearing testimony into evidence, and any ensuing questioning, would not have produced a significantly different impression of the victim's already thoroughly examined credibility.
The jury itself was keen enough to recognize it need only consider the section 402 hearing testimony if it had "enough relevance" to merit consideration. We agree with the trial court's conclusion that the testimony was marginally relevant. It was not relevant enough to merit consideration based on the other evidence presented.
The trial court's denial of the motion to continue constituted a permissible and reasoned restriction on cross-examination. Accordingly, the trial court did not abuse its discretion in denying the motion to continue.
It is immaterial our analysis might vary from the trial court's explicit logic. " ' "No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." ' " (People v. Zapien (1993) 4 Cal.4th 929, 976.)
C. Motion For Mistrial
" ' "A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]" [Citation.] A motion for a mistrial should be granted when " ' "a [defendant's] chances of receiving a fair trial have been irreparably damaged." ' " ' " (People v. Beck and Cruz (2019) 8 Cal.5th 548, 634 (Beck).) The ruling is reviewed for abuse of discretion. (People v. Bell (2019) 7 Cal.5th 70, 121.)
The court here denied the motion for mistrial for the same reasons it denied the motion to continue, i.e., lack of prejudice due to otherwise extensive impeachment. The court's analysis was appropriately "nuanced" and "fact-based ...." (People v. Chatman (2006) 38 Cal.4th 344, 369-370.) Its finding of no prejudice was reasonable. In the court's own words, the victim made "numerous other ... prior inconsistent statements ...."
The court conscientiously believed any potential prejudice was curable by stipulation or instruction. It followed through on this belief by instructing the jury to disregard the section 402 hearing testimony.
We have already determined the trial court's actions constituted a reasonable restriction on cross-examination. We also note the defense investigator was seemingly available to provide the exact evidence at issue, i.e., that the victim did in fact previously testify sexual intercourse occurred during the uncharged prior incident. The record, however, reveals no attempt to impeach the victim by calling the investigator as a witness. For all these reasons, we cannot conclude Bautista's " ' "chances of receiving a fair trial [were] irreparably damaged." ' " (Beck, supra, 8 Cal.5th at p. 634.) The trial court did not abuse its discretion in denying the mistrial motion.
Bautista does not allege trial counsel rendered ineffective assistanc
II. Bautista Was Not Entitled To A Mandatory Jury Instruction In His Favor
Finally, Bautista contends the trial court's curative jury instruction failed to adequately ameliorate the prejudice arising from the absent transcript. Specifically, he believes the only remedy was to require the jury to find the victim's section 402 hearing testimony was "inconsistent and ... exonerating."
Bautista presents a somewhat convoluted argument to support this claim. We glean the following arguments: 1) The court violated his constitutional right to compulsory process; and 2) The court violated his constitutional right to a fair trial. We disagree.
A. Right to Compulsory Process
"The Sixth Amendment provides that '[i]n all criminal prosecutions,' the defendant has the right 'to have compulsory process for obtaining witnesses in his favor.' (U.S. Const., 6th Amend.) This right is applicable to the states under the Fourteenth Amendment's due process clause. [Citation.] Our state Constitution has a similar provision. (Cal. Const., art. I, § 15 [a criminal defendant has the right 'to compel attendance of witnesses in the defendant's behalf'].)" (People v. Bryant, Smith, and Wheeler (2014) 60 Cal.4th 355, 367 (Bryant).)
"[T]he constitutional right to compulsory process is not 'an unfettered right to offer testimony' that 'automatically and invariably outweigh[s] countervailing public interests.' [Citation.] A defendant claiming a violation of this right must establish both that he was deprived of the opportunity to present material and favorable evidence and that the deprivation was arbitrary or disproportionate to any legitimate purpose. [Citation.] At bottom, ' "[i]n order to declare a denial of [due process based on the denial of compulsory process] we must find that the absence of ... fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial." ' " (Bryant, supra, 60 Cal.4th at pp. 367-368.)
Again, we have already determined the absent transcript did not undermine Bautista's right to a fair trial. The intended impeachment was immaterial and marginal when considered in context with several other inconsistencies inherent in the victim's varying descriptions of her sexual conduct with Bautista.
Neither was the court's decision to proceed with the trial "arbitrary [n]or disproportionate to any legitimate purpose." (Bryant, supra, 60 Cal.4th at p. 367.) The trial court acted only after thoroughly considering the absent transcript's prejudicial impact upon the defense. Because the evidence was immaterial, proceeding without the absent transcript was not disproportionate to any legitimate purpose.
We acknowledge the court reporter's unavailability was less than ideal. But, with the benefit of the entire record on appeal, we determine any denial of compulsory process did not prevent a fair trial.
B. Right to Fair Trial
Bautista argues that because the absent transcript was "lost through official negligence, the jury should have been instructed that the prior testimony was inconsistent and impeaching and therefore exonerating."
"Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality [citation] evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (California v. Trombetta (1984) 467 U.S. 479, 488-489, fn. omitted (Trombetta); People v. Carrasco (2014) 59 Cal.4th 924, 961.)
Bautista bases his argument on three cases: People v. Zamora (1980) 28 Cal.3d 88 (Zamora), People v. Conrad (2006) 145 Cal.App.4th 1175 (Conrad), and People v. Booth (2016) 3 Cal.App.5th 1284 (Booth). These cases are factually and legally distinguishable.
In Zamora, supra, the appellant sought "records of any citizen complaints charging racial prejudice or excessive use of force against" the law enforcement officers involved in his arrest. (Zamora, supra, 28 Cal.3d at p. 94.) As it turned out, "all records of unsustained complaints" against the officers "were destroyed ... about two weeks before the incident ...." (Id. at p. 95.)
The Supreme Court concluded Zamora was "entitled to discovery of [the] records because they may lead to evidence admissible under Evidence Code section 1103. [Citation.] Consequently, courts have not hesitated to conclude that the suppression or destruction of discoverable complaint records also constitutes a violation of due process. [Citation.] The court must impose appropriate sanctions in such a case in order to uphold defendant's right to a fair trial and to deter prosecution attempts to defy or circumvent judicial authority." (Zamora, supra, 28 Cal.3d at p. 96.) The appropriate sanction was to instruct the jury the officers "used excessive or unnecessary force on each occasion when complaints were filed against those officers, but that the complaint records later were destroyed," the jury "may rely upon that information to infer that the officers were prone to use excessive or unnecessary force," and "that the officers' testimony regarding incidents of alleged police force may be biased." (Id at pp. 102-103.)
Zamora was based on People v. Hitch (1974) 12 Cal.3d 641, which was overruled by Trombetta, supra, 467 U.S. 479. (People v. Frye (1998) 18 Cal.4th 894, 942.) Nevertheless, situations unfortunately arise in certain cases that necessitate judicial intervention to ensure fundamental fairness in trials. Conrad and Booth represent such cases.
In Conrad, supra, the defendant was unable to present certain testimony to the jury because the witness died before the trial. (Conrad, supra, 145 Cal.App.4th at pp. 1179-1181.) The court recognized "prejudice ... may be substantially mitigated, even virtually eliminated, by presenting the evidence to the jury through alternate means." (Id. at p. 1185.) The appellate court concluded the appropriate remedy was an instruction relating the lost evidence to the jury. (Id. at p. 1186.)
In Booth, supra, "an eyewitness who had exonerated [the appellant] could not be found, and the case proceeded to trial in" the witness's absence. (Booth, supra, 3 Cal.App.5th at pp. 1287-1288.) The appellate court concluded the appellant's "constitutional right to a fair trial [could] be accommodated by retrying the case and allowing the jury to hear the" exonerating witness's tape recorded statements. (Id. at p. 1313.)
Inherent in each of these cases, and unlike Bautista's case, was the inability, in any meaningful form, to place the missing or lost evidence before the jury. In other words, those defendants had no reasonably available comparable evidence. Bautista did have reasonably available comparable evidence to the evidence at issue.
The evidence at issue here—at its core—was related to the victim's credibility. There is no doubt Bautista was able to place evidence challenging the victim's credibility before the jury. Bautista thoroughly tested the victim's credibility with otherwise unlimited questioning. As the court noted, defense counsel succeeded in "very skillfully highlight[ing] for the jury numerous other ... prior inconsistent statements ...."
More importantly, Bautista had the ability to present to the jury the victim's precise statements at issue on appeal through the defense investigator. The defense investigator was present during the section 402 hearing and correctly noted that the victim had indeed testified that sexual intercourse occurred during the uncharged incident. No attempt, however, was made to utilize the investigator to impeach the victim. This evidence was a reasonable and comparable alternative to the absent transcript.
Granted, both sides had already concluded evidence at the point defense counsel learned the investigator was present during the 402 hearing. The court nonetheless retains discretion to allow parties to present more evidence to the jury. (Pen. Code, § 1094.) --------
Because the absent transcript was not "of such a nature that [Bautista was] unable to obtain comparable evidence by other reasonably available means" we find Bautista was not denied a fair trial. (Trombetta, supra, 467 U.S. at pp. 488-489.) The court was not required to instruct the jury "that the prior testimony was inconsistent and impeaching and therefore exonerating."
DISPOSITION
The judgment is affirmed.
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
POOCHIGIAN, J.