People v. Lopez CA2/6 ( 2021 )

Filed 10/25/21 P. v. Lopez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B304419
(Super. Ct. No. 17CR11300)
Plaintiff and Respondent, (Santa Barbara County)
v.
IPOLITO LOPEZ,
Defendant and Appellant.
Ipolito Lopez appeals the judgment entered after a jury
convicted him of possessing child pornography (Pen. Code,1
§ 311.11, subd. (a)) and unlawful electronic peeping (§ 647, subd.
(j)(3)(A)).2 The trial court sentenced him to three years in state
All statutory references are to the Penal Code unless
1
otherwise noted.
Appellant was found not guilty on charges of committing a
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lewd or lascivious act upon a child under the age of 14 (§ 288,
prison, suspended execution of the sentence, and placed appellant
on five years of probation with terms and conditions including
that he serve 270 days in county jail. Appellant was released
from jail in March 2020 and was subsequently deported to
Mexico. The trial court found appellant in violation of probation,
revoked probation, and issued a warrant for his arrest. Appellant
asks us to independently review subpoenaed medical records of
victim Jane Doe to determine whether the trial court acted
within its discretion in denying their disclosure to the defense.3
We affirm.
STATEMENT OF FACTS
Jane Doe was born in 2004. Appellant is married to Doe’s
sister S. In July 2017, appellant, S., and their young son J. were
living with Doe, her mother, and her sister A. After her father’s
death in April, Doe began drinking alcohol and smoking
marijuana.
One afternoon, Doe went into the bathroom to take a
shower. After she undressed, she saw a cell phone camera
pointed at her through a gap at the bottom of the bathroom door.
She covered herself with a towel and opened the door. No one
subd. (a)), and annoying or molesting a child under the age of 18
(§ 647.6, subd. (a)).
3 Appellant also contends that his five-year term of
probation must be reduced to two years pursuant to Assembly
Bill No. 1950, which became effective on January 1, 2021, and
applies retroactively to cases not yet final on appeal. (See, e.g.,
People v. Sims (2021) 59 Cal.App.5th 943, 958-964.) As the
People note, this claim is moot because the court revoked
probation and issued a warrant for appellant’s arrest.
2
was there, but she heard footsteps retreating in the direction of
the bedroom appellant shared with S. and J.
Doe testified that on several other occasions, appellant
sexually molested her or acted in a sexually inappropriate
manner. On one occasion, appellant masturbated in front of her
and touched her breast and vagina over her clothing.
Doe eventually reported the incidents to a school counselor,
who called the police. On October 26, 2017, Doe made a
pretextual phone call to appellant. During the call, appellant
repeatedly denied that he had ever engaged in sexually
inappropriate behavior with Doe. In a subsequent text message,
appellant told Doe “if something happened, it wasn’t intentional.”
After the call was completed, appellant told S. he needed to “get
things off his phone.”
Appellant was arrested shortly thereafter. S. gave the
police two cell phones that belonged to appellant. The phones
contained videos of Doe undressed in the bathroom that had been
taken through the gap at the the bottom of the bathroom door.
One video showed Doe in the bathroom masturbating. There
were also photographs of the legs of Doe, S., and A. that were
taken underneath a kitchen table and photographs of A. lying on
her stomach on her bed.
DISCUSSION
Appellant requests our review of Doe’s subpoenaed medical
records to determine whether the court erred in declining to
disclose them to the defense.4 The prosecution does not object to
4 After briefing was completed, we notified the parties that
the trial court’s copies of Doe’s subpoenaed records had been
destroyed pursuant to Evidence Code 1560, subdivision (d).
Appellant filed a motion to settle the record on appeal to include
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this request. Accordingly, we independently review the sealed
records to determine whether the court abused its discretion in
declining to disclose them. (See People v. Thompson (2016) 1
Cal.5th 1043, 1105; People v. Prince (2007) 40 Cal.4th 1179,
1285.)
During its pretrial investigation, the defense discovered
that Doe had been hospitalized for a drug overdose sometime
after appellant’s arrest. On September 6, 2019, the defense
served the hospital with a subpoena duces tecum requesting
Doe’s medical records from October 1, 2017 through January 1,
2019. The prosecution moved to quash the subpoena, and the
defense opposed the motion asserting that the records were
relevant to Doe’s credibility. The defense offered that appellant
had been aware of Doe’s drug use and that Doe had fabricated
the allegations against him in an attempt to prevent him from
revealing her drug use to her family. The defense also argued
that evidence of Doe’s drug use would impeach her credibility by
undermining her claim to the police that she did not use drugs.
After conducting an in-camera review of the subpoenaed
records, the trial court granted the motion to quash based on its
determination that the records “disclosed no . . . historical
information that would be relevant to this [case] sufficient to
the documents and we issued an order to that effect. Pursuant to
that order, the trial court (1) reissued the original subpoena
duces tecum and obtained the original records; (2) reviewed the
records, authenticated and certified them as the same records
reviewed at the in camera proceedings; (3) produced a
supplemental clerk’s transcript containing the records; (4)
corrected/augmented the record on appeal to include the
supplemental clerk’s transcript; and (5) forwarded the transcript
to this Court.
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overcome [Doe’s] right of privacy.” The trial court reasoned:
“[T]he defense has indicated that Jane Doe suffered some sort of
hospitalization related to drug use that occurred after the
incidents in questions in this case. At the time, the defense
indicated a lack of certainty as to when these occurred. The
Court’s review of the medical records obtained the date of this
alleged incident. It is substantially after the issues in this case,
it is not relevant to the issues in this case, and I will preclude the
defense from inquiring of Jane Doe as to whether she
subsequently suffered a potentially drug-related hospitalization.
I’m making this ruling on the grounds that her drug use or an
allegation of drug use or difficulties with drugs occurring after
this is not relevant to the issues in this case. In fact, it could be
considered inculpatory to the defendant. Raising this issue is
unduly time-consuming, has limited probative value, and I’m
precluding such testimony.”
We have independently reviewed Doe’s medical records and
conclude the trial court did not abuse its discretion in denying
their disclosure to the defense.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J. TANGEMAN, J.
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John F. McGregor, Judge
Superior Court County of Santa Barbara
______________________________
Lori E. Kantor, under appointment by the Court of Appeal,
for Defendant and Appellant. [waived]
Xavier Becerra, Rob Bonta, Attorneys General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Noah P. Hill,
Supervising Deputy Attorney General, and Stephanie C. Santoro,
Deputy Attorney General, for Plaintiff and Respondent.
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