People v. Evans CA3 ( 2021 )

Filed 12/8/21 P. v. Evans CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C088230
v. (Super. Ct. No. 17FE010141)
JARED DAVID EVANS,
Defendant and Appellant.
Defendant Jared David Evans, a paramedic, grabbed and exposed the breast of a
patient (Doe) during transit in an ambulance. He was convicted of felony assault under
color of authority (Pen. Code, § 149 -- count one)1 and misdemeanor sexual battery
(§ 243.4, subd. (e)(1) -- count two). The trial court placed defendant on probation for
five years, with a jail-term condition, for the felony assault conviction, and sentenced
defendant to a jail term for the misdemeanor sexual battery. The trial court also ordered
1 Undesignated statutory references are to the Penal Code.
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defendant to register as a sex offender for 10 years based on the sexual battery
conviction.
After defendant filed his appeal, the Legislature amended some of the applicable
statutes. In supplemental briefing, defendant argued he was entitled to a reduction of his
probationary term to two years under the amended statute (§ 1203.1) and that the duration
of his sex offender registration is now governed by the amended version of section 290.
This court granted defendant’s unopposed motion for a limited remand to allow the trial
court to address issues related to the statutory changes. The trial court clarified that no
probation term was imposed for the misdemeanor conviction and that the misdemeanor
term was stayed under section 654, not imposed concurrently.2 Also, the five-year
probation term for the felony conviction was reduced by law to two years, and defendant
was deemed to have completed the probationary term on October 5, 2020. (See
§ 1203.1.) The trial court further noted that the period of time defendant would be
required to register as a sex offender would be determined by the Department of Justice
under an amendment to section 290. Because the contentions asserted in defendant’s
supplemental brief were resolved in his favor on limited remand, we do not address them
here.
In his appellant’s opening brief, defendant argued (1) the trial court erred in
denying his motion to dismiss the charges against him or, in the alternative, to give a jury
instruction, because the detective investigating the case destroyed a drawing the detective
made in the course of the investigation; (2) the trial court abused its discretion in
excluding evidence that a witness showed other firefighters nude images of the witness’s
2 In the Respondent’s brief on appeal, the Attorney General argued the trial court should
have stayed the sentence for sexual battery under section 654 rather than imposing it
concurrently. We need not address the issue because the trial court clarified on limited
remand that it stayed the misdemeanor term.
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girlfriend; (3) the trial court abused its discretion in admitting statements the witness
made to his girlfriend about the incident in the ambulance as prior consistent statements;
(4) the evidence was insufficient to support the conviction for sexual battery because the
touching was not for the purpose of sexual arousal, sexual gratification, or sexual abuse;
(5) the trial court erred in ordering sex offender registration; and (6) we must direct
correction of the written probation order to conform to the oral pronouncement of
sentence.
We conclude (1) the trial court properly denied defendant’s motion concerning the
destruction of evidence; (2) the trial court did not abuse its discretion by excluding the
evidence that the witness showed other firefighters nude images of the witness’s
girlfriend; (3) the trial court did not abuse its discretion in admitting the prior consistent
statements; (4) the evidence was sufficient to support the conviction for sexual battery;
(5) defendant now appears to agree that sex offender registration is subject to section 290,
as amended, as the trial court noted on limited remand; and (6) the written probation
order must be corrected and amended to conform to the oral pronouncement of sentence
and the clarifications and changes articulated by the trial court on limited remand.
We will affirm the judgment.
BACKGROUND
Defendant was a firefighter and paramedic with the City of Sacramento. He was
also a preceptor for an intern, Chad Morris. A preceptor supervises and evaluates an
intern during on-the-job training.
Doe suffered from recurrent seizures. On April 1, 2017, she had a seizure.
Defendant and Morris responded to an emergency call and found Doe unconscious and
lying on the floor. As they put her on a gurney and into the ambulance, she was not
responsive to what they were doing. On the ride to the hospital, Morris sat on a bench at
Doe’s side, and defendant sat in a seat behind her. She was lying on her back, with her
head slightly inclined. Morris was taking vital signs and inserting an IV for medication.
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While Morris was busy doing this, defendant said, “Come take a look,” while gesturing
to Doe’s breasts. Morris responded, “That’s all right,” and defendant said, “Don’t be a
fucking pussy.” Morris said, “Nah, I’m good.” Defendant then reached into Doe’s shirt.
He removed her breast from the shirt and said, “Those are some big-ass nipples.” After
about five seconds, defendant returned Doe’s breast to her shirt as Morris continued to
render medical care. Defendant laughed and said, “Sorry bro. I had to do it.”
Even though she was unable to talk or open her eyes, Doe could hear and feel
what was going on around her. In the ambulance, she knew there was a man to her side
and one behind her, and she heard the one behind her saying she had “big tits.” She felt a
hand go inside her shirt and touch her left breast. She also heard the man behind her say,
“I just had to.” When the ambulance arrived at the hospital, the question was asked,
“What’s her age?” When one of the men said “19,” the other one said, “At least she was
legal.”
Morris did not immediately report the incident because he was afraid of failing his
internship and ruining defendant’s career. After the incident, however, defendant began
to give Morris negative evaluations and had Morris take some time off to change his
attitude. Eventually, Morris told his internship coordinator about the incident.
An investigation was opened into the incident, and Detective Eric Schneider talked
to Doe. During that interview, she said she believed it was the male sitting next to her
that had touched her breast. Detective Schneider also interviewed defendant, and
defendant denied anyone touched Doe’s breast.
DISCUSSION
I
Defendant contends the trial court erred by denying his motion to dismiss the
charges against him or, in the alternative, to give a jury instruction under California v.
Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413] (Trombetta) because the detective
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investigating the case destroyed a drawing the detective made in the course of the
investigation.
In criminal trials, defendants have a due process right to the preservation
of exculpatory evidence. (Trombetta, supra, 467 U.S. at pp. 488-489 [81 L.Ed.2d at
pp. 421-422]; Arizona v. Youngblood (1988) 488 U.S. 51, 58 [102 L.Ed.2d 281, 289-290]
(Youngblood).) “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.” (Trombetta,
at pp. 488-489, fn. omitted.) In Youngblood, the court held that, if evidence is merely
potentially useful, bad faith destruction must also be established. (Youngblood, at p. 58.)
We review the denial of a Trombetta motion for substantial evidence. (People v. Duff
(2014) 58 Cal.4th 527, 549.)
During the ambulance ride, Morris was seated to the left of Doe and defendant
was seated behind Doe. Later, Detective Schneider interviewed Doe. During the
interview, Detective Schneider drew a rough diagram of the inside of the ambulance,
including the seat positions of Morris and defendant. Pointing to the diagram, Doe
indicated that she thought the person seated to her side was the one who touched her
breast. Detective Schneider testified at the preliminary hearing that he no longer had the
rough diagram because he had destroyed it.
Defendant made a Trombetta motion before trial. The trial court denied the
motion because the defense had comparable evidence that Doe indicated in the interview
that she thought the person who touched her was seated to her side. The interview of Doe
was recorded by video and memorialized in the detective’s report, and both Doe and the
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detective would testify at trial. The diagram was destroyed in good faith because the
detective included the relevant information in his report.
Substantial evidence supports the trial court’s determination. The video of Doe’s
interview and the testimony of both Doe and Detective Schneider were available to the
defense to establish that Doe indicated in the interview that she thought the person seated
next to her was the one who touched her breast. Detective Schneider destroyed the
diagram after preparing a report of the interview. The diagram would not have
contributed materially to the evidence available at trial.
Defendant claims there was no evidence comparable to the diagram drawn by
Detective Schneider and that the destruction of the diagram was in bad faith.3 Neither
claim has merit.
Defendant argues there was no evidence comparable to Detective Schneider’s
diagram because the video of the interview does not show the details of the diagram and
there is no assurance that having the detective draw a new diagram at trial to show the
jury what Doe pointed to would reflect what was in the diagram. Defendant overstates
the significance of the diagram because, as the trial court noted, the video of the
interview and Detective Schneider’s report both reflected what Doe told Detective
Schneider about the position of the person who touched her breast. The diagram
therefore was not necessary to show what Doe indicated during the interview.
Defendant also argues the destruction was in bad faith. In support, he reasons “the
diagram was undesirable to the detective because it was used to identify someone who
3 In his brief, defendant recites Doe’s trial testimony that the person behind her touched
her breast and her being unsure about what she said in the interview with Detective
Schneider. Defendant also recites Detective Schneider’s trial testimony about the
interview. But in reviewing the trial court’s ruling on the motion, we consider only what
the trial court knew at the time of its ruling. (People v. Hendrix (2013) 214 Cal.App.4th
216, 243.)
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was not the designated suspect.” He declares: “The destruction of the diagram itself
implies bad faith.” However, the evidence was sufficient for the trial court to conclude
that Detective Schneider destroyed the diagram because the relevant information was
contained in the video of the interview and in the detective’s report.
The trial court did not err by denying the Trombetta motion.
II
Before trial, the prosecutor filed a motion to exclude any defense evidence that
Morris had shown nude images of his girlfriend to others at the fire station. The motion
was based on relevance (Evid. Code, § 210) and the prejudicial effect of the evidence
(Evid. Code, § 352). The defense opposed the motion, stating that the evidence would
also show that Morris was “giddy and uncomfortable when talking about female and
private parts and STDs in the back of the ambulance.” The defense argued the evidence
would also establish Morris’s lack of respect for women. The defense further argued the
evidence went to Morris’s credibility because Morris claimed to be an “outstanding
firefighter” and an “altruistic person.” The trial court concluded the evidence was not
relevant and excluded it.
Among other things, defendant argues on appeal that the display of the nude
images went to Morris’s intent and attitude toward women. The argument focuses on
admissibility based on intent under Evidence Code section 1101, subdivision (b). But
defendant did not argue in the trial court that the evidence was relevant to Morris’s intent.
He only argued Morris was immature about and lacked respect for women and, therefore,
his claim to be an outstanding firefighter lacked credibility. Under the circumstances,
defendant forfeited consideration on appeal of admissibility based on intent. (See People
v. Partida (2005) 37 Cal.4th 428, 433-434 (Partida) [evidentiary claim not presented in
trial court is forfeited on appeal].)
Defendant also argues the evidence was admissible “because Morris claimed he
ignored [defendant’s] comments, focusing on patient care--i.e., he claims he was acting
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appropriately as a paramedic should. Evidence of Morris’s display of nude images would
tend to show that he was not acting appropriately and had the same intent and attitude
when he showed the images to firefighters as he did when in the back of the ambulance
with Doe.” Again, this argument was not presented in the trial court and is therefore
forfeited. (Partida, supra, 37 Cal.4th at pp. 433-434.)
Although we nevertheless understand the gist of defendant’s arguments regarding
the evidence and are not unsympathetic, the trial court did not abuse its discretion in
making its evidentiary determination.
III
Defendant next contends the trial court abused its discretion by admitting
statements Morris made to his girlfriend about the incident in the ambulance as prior
consistent statements.
Evidence Code section 1236 provides: “Evidence of a statement previously made
by a witness is not made inadmissible by the hearsay rule if the statement is consistent
with [the witness’s] testimony at the hearing and is offered in compliance with [Evidence
Code] Section 791.” Thus, “[t]o be admissible as an exception to the hearsay rule, a prior
consistent statement must be offered (1) after an inconsistent statement is admitted to
attack the testifying witness’s credibility, where the consistent statement was made before
the inconsistent statement, or (2) when there is an express or implied charge that the
witness’s testimony recently was fabricated or influenced by bias or improper motive,
and the statement was made prior to the fabrication, bias, or improper motive.” (People
v. Riccardi (2012) 54 Cal.4th 758, 802, disapproved on other grounds in People v. Rangel
(2016) 62 Cal.4th 1192, 1216.) A “previous statement made by a witness is admissible
under the prior consistent statement exception to the hearsay rule if there has been an
express or implied charge that the witness’s testimony is recently fabricated and the prior
consistent statement was made before the motive for fabrication is alleged to have
arisen.” (People v. Crew (2003) 31 Cal.4th 822, 843.)
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Here, the prosecutor asked Morris’s girlfriend, R.B.: “At some point after
April 1st[,] 2017, when [Morris] came home from work, did he tell you about an incident
that occurred in an ambulance?” Defense counsel objected based on hearsay, but the trial
court overruled the objection, stating that it was a prior consistent statement. R.B.
testified that Morris told her defendant had touched Doe’s breast and that he was
conflicted about reporting it.
The prior consistent statement exception to the hearsay rule is applicable here
because the defense argued Morris fabricated the story after defendant gave Morris
negative evaluations, starting on April 6, 2017, five days after the incident, and told
Morris to take some time off to change his attitude. The trial court noted: “It appears
Mr. Morris made this statement when he came off shift when this incident first allegedly
took place. [¶] Mr. Morris was not given -- was not relieved of two shifts by [defendant]
until I think two weeks later. So therefore -- and that is when he told his superiors about
this incident. I believe defense theory is he fabricated this or made this up at that time
because he was angry with [defendant] about being let off and about maybe losing his
position as an intern, and therefore that’s why he told his superiors this. [¶] That’s why
this prior consistent statement is a valid prior consistent statement because it was made
before any layoff or any relief from shifts happened, before there was a motive to lie or
fabricate a story at this time.”
Defendant argues on appeal that Morris’s prior consistent statement was
inadmissible because “there is no evidence that the statement allegedly made to [R.B.]
was made before Morris’s relationship with [defendant] soured.” We disagree. Because
Morris worked shifts that spanned more than one day, the evidence could have referred to
when Morris got home from the shift when the ambulance incident occurred, and that is
how the trial court interpreted the evidence. Therefore, the record supports the trial
court’s conclusion that the statement was made before Morris had a motive to fabricate.
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The trial court did not abuse its discretion in overruling the defense objection
to the prior consistent statement.
IV
Defendant further claims there was insufficient evidence to sustain the conviction
for a violation of section 243.4, subdivision (e)(1) [misdemeanor sexual battery] because
the touching was not for the purpose of sexual arousal, sexual gratification, or sexual
abuse.
“Any person who touches an intimate part of another person, if the touching is
against the will of the person touched, and is for the specific purpose of sexual arousal,
sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery . . . .”
(§ 243.4, subd. (e)(1).)
Here, defendant brought Morris’s attention to Doe’s breasts, reached into her shirt,
grabbed her breast, exposed it, and made a lewd comment. This is sufficient evidence
that defendant committed the touching for the specific purpose of sexual gratification.
Defendant disagrees, stating: “The touching was extremely brief. Doe did not testify that
she felt pain as if the breast was forcibly squeezed. There was no evidence of caressing.
There was no evidence that the touching was prolonged or of any attempt to prolong the
contact. [Citation.] While the touching was not in a public place, it was done in the
presence of another person.” This may have been an argument to present to the jury, but
it is entirely insufficient to support a sufficiency-of-the-evidence contention on appeal.
Defendant relies on In re Jerry M. (1997) 59 Cal.App.4th 289, in which the Court
of Appeal held that the 11-year-old juvenile did not touch the victims’ breasts for the
purpose of sexual arousal and therefore the evidence was not sufficient to sustain a
finding he violated section 288, subdivision (a). (In re Jerry M., at pp. 299-300.) That
case is inapposite for a variety of reasons, however, not the least of which is that
defendant here was not pre-pubescent at the time of the offense. (See id. at p. 300.)
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The evidence was sufficient to support a conviction for violation of section 243.4,
subdivision (e)(1).4
V
The trial court ordered defendant to register as a sex offender for 10 years
under section 290. The prosecutor objected that the statute required lifetime registration,
but the trial court believed only 10 years was required. Before the amendment to
section 290, defendant contended on appeal that the trial court erred by requiring sex
offender registration at all. However, defendant now appears to agree that sex offender
registration is subject to section 290, as amended, as the trial court noted on limited
remand. We therefore need not address defendant’s contention.
VI
Defendant contends we must order correction of the written probation order to
conform to the oral pronouncement. The Attorney General agrees.
In the trial court’s oral pronouncement of judgment, it placed defendant on
probation for five years for the felony assault conviction (count one), with a condition
that he serve 180 days in county jail. As to the conviction for misdemeanor sexual
battery (count two), the trial court did not mention probation. Instead, it imposed a
concurrent 90 days in county jail.
In the minute order and probation order, the trial court indicated a grant of
probation, but it did not specify that probation was imposed only as to the felony assault
conviction. On limited remand, the trial court clarified that it did not order probation for
the misdemeanor conviction; however, we are unaware of any amendment to the written
probation order reflecting that clarification. Therefore, the trial court must correct and
4 Because we conclude the evidence was sufficient to support a finding that the touching
was for sexual gratification, we need not consider whether it was also for sexual arousal
or abuse.
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amend the probation order, to the extent necessary, to conform to the oral pronouncement
of sentence and the clarifications and changes articulated by the trial court on limited
remand. (See People v. Zackery (2007) 147 Cal.App.4th 380, 386 [minutes must be
corrected to reflect oral pronouncement].)
DISPOSITION
The judgment is affirmed. The trial court is directed to correct and amend
the probation order, to the extent necessary, to conform to the oral pronouncement
of sentence and the clarifications and changes articulated by the trial court on limited
remand.
/S/
MAURO, J.
We concur:
/S/
RAYE, P. J.
/S/
BLEASE, J.
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