People v. Lozano ( 2024 )

Filed 4/10/24
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A165646
v.
NORMAN ALEXANDER LOZANO, (Contra Costa County
Super. Ct. No. 5-200826-6)
Defendant and Appellant.
Norman Alexander Lozano appeals a judgment entered upon a jury
verdict finding him guilty of multiple sexual offenses against two girls, Jane
Doe 1 (Doe 1) and Jane Doe 2 (Doe 2). His primary argument on appeal, from
which all his other contentions flow, is that the trial court erred in admitting
an out-of-court statement of Doe 1, who told her mother that defendant had
been molesting her since she was 11 years old.
We agree with defendant that the trial court abused its discretion in
admitting this evidence as a spontaneous statement. (Evid. Code, § 1240
(section 1240).) The 16-year-old girl who made this disclosure was stepping
forward years after the abuse began, after carefully considering whether she
wanted to disclose it. Although she was understandably emotional, her
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110,
this opinion is certified for publication with the exception of Section II of the
Factual and Procedural Background and Sections II through IV of the
Discussion.
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torment did not make the statement admissible under section 1240. We also
conclude, however, that the admission of this statement was prejudicial as to
only a single count of committing a lewd act on a child under the age of 14.
(Pen. Code, § 288, subd. (a).) We therefore reverse the conviction on count 1,
as well as resulting enhancements alleging defendant committed this offense
against multiple victims, but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Crimes Against Jane Doe 1
Doe 1’s Statement to her Mother
Doe 1 was born in July 2000, when defendant was 24 years old. By the
time of trial, Doe 1 was deceased. The jury heard prior testimony of her
mother, Shannon C.,1 about a brief conversation between the two of them.
Shannon was also deceased by the time this testimony was read to the jury.
On the morning of June 6, 2017, Shannon was outside the home of a
friend and neighbor on Market Avenue in San Pablo. As she walked up a
path, she saw Doe 1, her 16-year-old daughter, outside the neighbor’s house.
Doe 1 was crying, and she immediately told Shannon, “ ‘Mom, he’s been
molesting me.’ ” Doe 1 identified defendant, who was a family friend, as the
molester, and said it had been going on since she was 11 years old. According
to Shannon, it was uncommon for Doe 1 to be emotional in that manner.
Defendant’s truck was outside the house, and Doe 1 said she had seen
him about five minutes previously. Shannon immediately called the police.
An officer spoke with Doe 1, and defendant, who was in the house on Market
Avenue, was then arrested.
1 In the interest of privacy, we will refer to some family members by
their first names, intending no disrespect.
2
Testimony of Doe 1’s Brother
Doe 1’s brother, Miguel, testified that he recalled meeting defendant for
the first time in late 2011, when defendant was dropping off Doe 1 at home
late in the evening. Doe 1 was in about fifth grade at the time. In the
ensuing years, defendant often came to Doe 1’s family home, and the family
socialized frequently with a group of friends that included defendant. These
gatherings often took place at the home of the family friend on Market
Avenue, and defendant drank heavily at them.
Miguel recalled that around the middle of 2012, when Doe 1 was 11 or
12, defendant and Doe 1 began going off together in the evening three or four
times a week, saying they were going to the gym, or sometimes to defendant’s
lounge bar. By around April 2013, when Doe 1 was 12 years old, Miguel
began noticing that she and defendant seemed more comfortable together,
“almost like if it was something normal,” spent more time together, and
stayed out later. They sometimes did not return until “10:00, going on
towards 11:00,” and defendant dropped Doe 1 off around the corner rather
than at the entrance to the family’s apartment, a matter that Miguel found
very unusual. During 2013, Miguel also noticed Doe 1 become secretive
about where she and defendant went and what they were doing.
Around April of 2013, defendant began coming on his own to Doe 1’s
family’s home, and he, Doe 1, and Shannon would listen to music and dance,
while defendant and Shannon drank beer and spirits. On one occasion when
Doe 1 was 13, it was around midnight, and Miguel was in his bedroom down
a hallway at the back of the house. He heard Doe 1 and defendant speaking
to each other in a utility closet between Miguel’s and Doe 1’s bedrooms.
Doe 1 asked defendant if she could call him “ ‘babe,’ ” and defendant
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responded she should “calm down” and “keep it quiet.” Miguel testified that
at that point his “suspicions were more or less confirmed.”
The morning Doe 1 reported the molestation, Miguel went to the house
on Market Avenue, and he testified she was “very, very emotional.”
Examination of Doe 1
A forensic nurse carried out a sexual assault examination on Doe 1 on
the afternoon of the day she reported the molestation. Doe 1 was shaky
during the entire examination. The nurse observed multiple abrasions to Doe
1’s perineum, as well as several linear lacerations. The injuries had not yet
begun to heal, which indicated they had been sustained no more than 48
hours previously. They were consistent with blunt force trauma that could
have been caused by a finger or a penis, and they would have been painful.
The nurse testified it was unusual to see such injuries, even after an alleged
sexual assault, although they could have resulted from consensual sexual
activity.
Results of Investigation
Defendant rented an apartment on Garrity Way in Richmond from
March 18 to June 6, 2017. Doe 1, who was 16 years old during this time, had
a key to the apartment. A search of the apartment showed that only one
bedroom was furnished, containing a bed with bedding, a nightstand, and a
television stand. In the drawer of the nightstand were some bras and birth
control pills in Doe 1’s name. A condom was on the television stand. A torn
piece of condom wrapper was found on the bed when the sheets were moved
aside. There was women’s clothing in the closet. In a second bedroom was a
shoe box with shoes and a receipt for a purchase on a credit card that
contained the same last four digits as a credit card in defendant’s wallet. On
the kitchen table was a prescription bottle in Doe 1’s name.
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A search of defendant’s cell phone, which appeared to have been in use
since November 16, 2016, showed more than 600 calls to or from Doe 1’s
phone number between that date and June 1, 2017. Seventeen of those calls
occurred on Valentine’s Day. There were also many text messages
apparently exchanged between defendant and Doe 1. Some of the messages
expressed his love and need for her, his hope to spend the night with her,
plans to meet, and his plan to rent a place where he could be happy with her;
others appeared to consist of arguments between the two. A text message
exchange around 10:00 on the evening of Valentine’s Day indicated defendant
was going to “ ‘get the room.’ ” In an exchange in March 2017, the pair
expressed their need for each other, and defendant told Doe 1, “ ‘you need the
pill.’ ”
Among the photographs on defendant’s cell phone were two full-body
pictures of a person who appeared to be Doe 1, unclothed, one of her clad only
in a bra, and one close-up that appeared to be of her uncovered vaginal area.
At least one of the photographs appeared to have been taken in a hotel room
while Doe 1 was either asleep or unconscious, and showed a box of condoms
and alcohol on a nightstand.
Sheets and a blanket found on the bed in the apartment on Garrity
Way had semen on them. The sample on the blanket was tested, and the
DNA matched defendant’s. The sample from the sheet was not tested.
A swab from Doe 1’s left breast showed DNA that matched defendant’s.
A swab from defendant’s genitals and fingertips produced DNA that matched
Doe 1’s.
Defendant’s Admissions
After his arrest, defendant initially denied any sexual contact with Doe
1, but eventually admitted to having engaged in multiple sexual acts with
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her, both vaginal and oral. He estimated she performed oral sex on him
“[l]ess than 10” times, and he performed oral sex on her “[m]aybe five” times.
They first had sex “a year and something” previously, when Doe 1 was 15
years old “[a]nd months,” or “15 almost 16.”
II. Crimes Against Jane Doe 2
Doe 2 was born in August 1984. She met defendant in 1997, the
summer she turned 13 years old. Doe 2 and a friend were walking to Hilltop
Mall in Richmond when defendant pulled up in his car and offered them a
ride, which they accepted. They exchanged telephone numbers before he
dropped them off. Two or three weeks later defendant called, and he took
Doe 2 and her friend to buy wine coolers. She next saw him two or three
weeks after that, early in seventh grade, when she was late for school and
called him for a ride to her middle school. He told her he was 18 years old,
although his actual age was 22.
The next time Doe 2 saw defendant, she went to his house through a
back entrance during the evening, he gave her a sweet alcoholic drink, and
they drank and watched television together. She had more than one drink
and felt “out of it.” He asked her if she wanted to have sex, and she refused.
He then asked if he could perform oral sex on her, she agreed after he
assured her it would not hurt, and he did so. She was 13 years old at the
time.
Two or three weeks later, defendant picked Doe 2 up and they went to a
hotel, where he provided her with alcohol. He had condoms with him, and
they had sexual intercourse. She was still in seventh grade.
Doe 2 and defendant continued to have a sexual relationship for six or
seven years after that. They would see each other at least once a month, and
some of their meetings involved sexual encounters. They had sexual
6
relations three or four times before she turned 14, and a total of around 30
times before she turned 18. Doe 2 considered defendant her boyfriend.
Doe 2’s relationship with defendant ended when she was 19 or 20 years
old. Someone identifying herself as defendant’s wife called Doe 2 and told her
to stay away from defendant. Doe 2 had not known defendant was married.
Doe 2 came forward and reported these events to the police in 2017,
after defendant’s arrest, when she saw a flyer with defendant’s picture that
asked anyone with information to call the police.
III. Verdicts and Sentence
The jury found defendant guilty on all counts. As to Doe 1, he was
found guilty of a lewd act upon a child under the age of 14 between July 2011
and July 2014 (Pen. Code, § 288, subd. (a); count 1);2 one count of a lewd act
upon a child aged 14 or 15 between July 2014 and July 2016 (§ 288,
subd. (c)(1); count 4); two counts of oral copulation of a person under the age
of 18 between July 2011 and the date Doe 1 made her report (former § 288a,
subd. (b)(1); see § 287, subd. (b)(1); counts 2 and 3); and two counts of
unlawful sexual intercourse during this same six-year period (§ 261.5,
subd. (c); counts 5 and 6).
As to Doe 2, the jury found defendant guilty of three counts of
committing a lewd act upon a child under the age of 14. (§ 288, subd. (a);
counts 7, 8 and 9.)
For each of the counts for lewd acts against a child under the age of 14,
the jury found true allegations that defendant had more than one victim.
(§§ 667.61, subd. (j)(2), 1203.066, subd. (a)(7).) As to the counts against Doe
2, the jury also found true allegations that defendant had substantial sexual
2All undesignated references are to the Penal Code, except that
“section 1240” refers to the Evidence Code.
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contact (§ 1203.066, subd. (a)(8)) and that the statute of limitations had been
extended (§ 803, subd. (f)(1)).
The jury also found true three factors in aggravation: that the victims
were particularly vulnerable, that the crimes were carried out in a manner
indicating planning, sophistication, or professionalism, and that defendant
took advantage of a position of trust or confidence to commit the offenses.
The trial court sentenced defendant to a total term of 50 years to life
plus a determinate term of five years and eight months in prison.
DISCUSSION
I. Admission of Doe 1’s Statement to Shannon
A. Additional Background
At the outset of trial, the People sought admission of two statements
made by Doe 1 on June 6, 2017, the day she reported the crimes. The first
was her statement to Shannon, outside the house on Market Avenue, about
the molestation. Shannon testified that Doe 1 told her immediately upon
seeing her, “ ‘Mom, he’s been molesting me,’ ” and that as part of that first
statement, Doe 1 said it had been going on since she was 11 years old.
The second was a more extensive statement Doe 1 made to a police
officer who came to the scene after Shannon called. Doe 1 told the officer
defendant had been molesting her since she was 11 or 12 years old, that she
had lost her virginity to him, and that they had sex “[o]ver hundreds of
times.” She told her mother about the molestation because “it’s bothered me
so much and it doesn’t even feel good and I had to tell my mom, ‘cause I can’t
hold it in any more. It hurts.”
Doe 1 told the officer that two days previously, “I literally sat on the
side of my bed, and I said, ‘What am I doing with this guy? He’s like 20 years
older than me,’ ” and she asked to talk to him. The next day—which was the
8
day before she told Shannon of the molestation—he took her to the
apartment on Garrity Way and they had sex. When asked if that sexual
encounter had been consensual, she replied, “he got in my head. Yeah,” then
said “I can’t tell him no. He’s, he hit me before, he’s busted my lip. . . . We’ve
gotten in fights.” On this occasion, however, she told defendant she did not
want to talk to him again, and said she would “ ‘call the cops’ ” if he did not
let her speak to his wife. Doe 1 described herself as “coming to [her] senses,”
and she told defendant, “ ‘I’m not stupid anymore.’ ” It is not entirely clear
from Doe 1’s statement to the officer whether she said these things to
defendant before or after this final act of sexual molestation.
The People argued that both Doe 1’s initial statement to Shannon and
the statement she then made to the responding officer were admissible as
spontaneous statements under section 1240. The People pointed out that Doe
1 was “very emotional, crying throughout the interview,” and argued that
after years of abuse she reached “an emotional and psychological point where
she ‘[could]n’t hold it in anymore.’ ” And, the People contended, her
statement to the officer was not testimonial because it was intended
primarily to address defendant’s presence in the house on Market Avenue
and to extricate herself from the abuse.
The trial court excluded the statement to the reporting officer as
testimonial, but concluded that Doe 1’s unsolicited statement to Shannon,
“ ‘He’s been molesting me,’ ” was admissible as a spontaneous statement.
(§ 1240.)
Defendant filed a motion for reconsideration. He argued that Doe 1’s
statements to the police officer immediately after she disclosed the
molestation to Shannon showed Doe 1 had deliberated before making the
report. He pointed to Doe 1’s statement that two days previously she realized
9
she no longer wanted to be with defendant, so she alerted him they needed to
talk and then told him, “ ‘I don’t ever want to talk to you again,’ ” and “ ‘let
me talk to your wife or I have to call the cops.’ ” Defendant also attached to
his reply brief excerpts from another interview Doe 1 had with two police
detectives later on the day of her initial report.
In her interview with the two detectives, Doe 1 explained how hard she
had struggled with her decision to disclose defendant’s abuse. She said she
had “wanted to tell someone but I couldn’t because I was embarrassed and
. . . felt like mom would’ve judged me or something but, in the end I know she
wouldn’t. So [for the next two or three days] I just started thinking more and
more about my life you know, and like what was I doing? What am I doing
with this person? [¶] . . . [¶] And yeah, I just figured that today I had to tell
my mom finally” because “I was going kinda crazy in my head about it.”
Doe 1 told the detectives of her anger with defendant for having lied to her,
including about the fact that he and his wife had a baby. And she told them
she had confronted defendant that morning with the fact she intended to
disclose the abuse. Doe 1 said she told him “it’s killing me inside, like I’m
going crazy . . . I’m gonna have to tell my mom.” He urged her not to tell
because it would get him in trouble, but she responded, “you keep hurting
me. And you keep lying to me like, why do I want to keep protecting someone
like you, you know?” At this point, defendant “walked off cause I told him I
was gonna call the police,” and “then my mom came and I told her and she
started crying. . . .”
The trial court denied defendant’s motion to reconsider. It first
remarked there had been no change in circumstances to justify
reconsideration, but then went on to discuss the motion on its merits. As to
Doe 1’s statements in her interview with the two detectives—statements
10
defendant agreed were inadmissible at trial—the court concluded it would be
inappropriate to consider inadmissible testimonial hearsay for purposes of
ruling on the admissibility of Doe 1’s statement to Shannon. The court also
identified for the first time the event it credited with precipitating Doe 1’s
statement to Shannon, that after Doe 1 felt she “can’t take it any more, he
uses her again sexually.” In the court’s view, Doe 1’s statement to Shannon
was “completely out of the blue; that she might have thought about it before
she blurted this out to her mother to me does not undermine the spontaneity
of her statement to her mother while she’s crying, while the person who’s
caused so much grief to her in her lifetime is right there at the house.” Thus,
the trial court, concluded, even if Doe 1 thought about the matter in advance,
she acted spontaneously at the time she spoke with Shannon.
B. Legal Principles
Under the exception to the hearsay rule for spontaneous statements, a
trial court may admit evidence of a statement that “[p]urports to narrate,
describe, or explain an act, condition, or event perceived by the declarant,” if
the statement “[w]as made spontaneously while the declarant was under the
stress of excitement caused by such perception.” (§ 1240.) For a statement to
be admissible under this exception, “ ‘(1) there must be some occurrence
startling enough to produce this nervous excitement and render the utterance
spontaneous and unreflecting; (2) the utterance must have been made before
there has been time to contrive and misrepresent, i.e., while the nervous
excitement may be supposed still to dominate and the reflective powers to be
yet in abeyance; and (3) the utterance must relate to the circumstances of the
occurrence preceding it.’ ” (People v. Poggi (1988) 45 Cal.3d 306, 318 (Poggi).)
“A spontaneous statement is one made without deliberation or
reflection.” (People v. Raley (1992) 2 Cal.4th 870, 892 (Raley).) The “ ‘crucial
11
element’ ” in determining whether a statement is sufficiently reliable to be
admissible as a spontaneous statement is “ ‘the mental state of the speaker.
The nature of the utterance—how long it was made after the startling
incident and whether the speaker blurted it out, for example—may be
important, but solely as an indicator of the mental state of the declarant.’ ”
(Id. at pp. 892–893.)
Whether the requirements of this exception are satisfied is “largely a
question of fact” for the trial court to determine, a task in which it
“ ‘necessarily [exercises] some element of discretion.’ ” (Poggi, supra, 45
Cal.3d at p. 318.)
But it is an abuse of discretion to admit a statement under this
exception when “the circumstances surrounding [the] statement show ample
opportunity for deliberation and reflection.” (People v. Pirwani (2004) 119
Cal.App.4th 770, 789–790 (Pirwani).) Thus, a statement made when the
victim of a crime was “bewildered, confused, distraught and tearful,” but after
she had gone to the police and “ ‘told [them] everything,’ ” was not properly
admitted as a spontaneous statement. (Id. at pp. 788, 790.) And in People v.
Ramirez (2006) 143 Cal.App.4th 1512, 1524–1525 (Ramirez), it was an abuse
of discretion for the trial court to admit under section 1240 statements made
by a rape victim several hours after the crime, when the content of her
statements showed she had deliberated or reflected on what had occurred.
Although she was upset and crying, the victim related the events of the
previous evening in detail, expressed concern about what her brother might
do if he found out about them, and asked someone to call several friends
because she needed a ride. As the Ramirez court explained, both the
narrative style and the content of the victim’s statements indicated they were
12
not spontaneous for purposes of the hearsay exception. (Id. at pp. 1525–
1526.)
The mere passage of time does not necessarily render a statement
inadmissible under the exception for spontaneous statements. This principle
is illustrated in People v. Trimble (1992) 5 Cal.App.4th 1225 (Trimble).
There, the defendant was convicted of murdering his romantic partner. One
of the couple’s children, Ashley, was two-and-a-half years old at the time. (Id.
at p. 1228.) Two days after the victim was last seen alive, the victim’s sister
went to the family home to stay with the children while the defendant
purportedly went to search for the victim. When the defendant left, Ashley
immediately stood up, became hysterical, and said her parents had had a
“ ‘big, big fight, and that daddy cut mommy with a knife’ ” and “ ‘punched
mommy in the nose and mommy fell on the floor.’ ” (Id. at p. 1229.) The
mother was later found dead. (Id. at p. 1231.) The appellate court found no
abuse of discretion in the admission of this statement, although it was made
almost two days after the event it described. The evidence showed Ashley
was extremely agitated when she made the statement, and she made it
immediately after her father left the home, the first time since the incident
there had been a trustworthy adult in whom she could confide. The
appearance of the aunt, followed by a discussion of the victim’s disappearance
and then the defendant’s departure, “was a triggering event, startling enough
to provoke an immediate, unsolicited, emotional outpouring of previously
withheld emotions and utterances.” (Id. at p. 1235.)
Other cases have likewise upheld application of the exception for
spontaneous statements even after some time has passed. (See, e.g., People v.
Brown (2003) 31 Cal.4th 518, 541 (Brown) [statement made two and a half
hours after crime by declarant who “continued to labor mightily under the
13
emotional influence of the disturbing events he perceived”]; Raley, supra,2 Cal.4th at pp. 893–894 [statement 18 hours after sexual assault, by victim
who had been bleeding, suffered traumatic head injury, and was not far from
death].) And section 1240 may encompass reports of criminal conduct made
less promptly, but precipitated by some subsequent startling event. For
example, a child’s statement to her mother about sexual abuse that had
occurred a day or two earlier was admissible because the child disclosed it
immediately after her sore pubic area was reinjured during play. (In re
Emilye A. (1992) 9 Cal.App.4th 1695, 1700, 1713 (Emilye A.).) None of these
cases undermines the rule that the statement must have been made while
the reflective powers are still in abeyance due to the stress of excitement
caused by perceiving an event.
But evidence that a declarant is under stress or in a state of high
emotion while recounting a traumatic event is not enough—without the
requisite link to a recent startling event—to establish a statement’s
admissibility. Illustrating that principle, our high court in People v.
Gutierrez (2009) 45 Cal.4th 789 (Gutierrez) considered evidence of a child’s
statement to his aunt two months after his mother was killed. When the
aunt told the three-year-old they were going to visit his mother’s grave, the
child said he would “ ‘untie’ ” his mother, and then recounted how “ ‘daddy
and his mean friend tied up’ ” the mother. (Id. at p. 808.) “While making his
statement, the child was crying, and ‘scrunching up his face like he was
angry.’ ” (Ibid.) The Supreme Court nonetheless concluded the statement
should not have been admitted under section 1240. Distinguishing Trimble,
the Court explained that the child in Gutierrez had had multiple secure
opportunities to disclose the crime to other relatives, and that, although the
child was crying and upset, “there [was] nothing to indicate that during the
14
two-month period following his mother’s murder he had remained under the
stress of excitement caused by witnessing the event and that his reflective
powers were still in abeyance.” (Gutierrez, at p. 812.)
C. Analysis
1. Admissibility
Under these standards, we are constrained to conclude Doe 1’s
statement to Shannon did not fall within the hearsay exception for
spontaneous statements because she made it after considerable opportunity
for deliberation and reflection. (See Gutierrez, supra, 45 Cal.4th at pp. 810–
812.) Doe 1’s initial words to Shannon were, “ ‘Mom, he’s been molesting
me,’ ” and she said—apparently “in that first statement”—that he had been
doing so ever since she was 11 years old. Thus, Doe 1 described to her
mother events that took place as much as five years earlier. We are aware of
no California authority applying the spontaneous statement hearsay
exception to such remote events.
We acknowledge that the passage of time need not prevent a statement
from being spontaneous, but the cases establishing this principle involve
delays of a couple of hours or a couple of days between the startling
occurrence and the statement, not a period of years. (See Brown, supra, 31
Cal.4th at p. 541 [two and a half hours]; Raley, supra, 2 Cal.4th at pp. 893–
894 [18 hours]; Trimble, supra, 5 Cal.App.4th at pp. 1229, 1235 [two days]; In
re Emilye A., supra, 9 Cal.App.4th at p. 1713 [one or two days].) Indeed, our
high court has explained that “allowing admission of a statement that was
made approximately eight hours after the startling event may be the
exception rather than the rule. (People v. Merriman (2014) 60 Cal.4th 1, 69
(Merriman).) And in each of the cases upholding application of the
15
spontaneous statement exception after a delay, the declarant was still
laboring under the immediate influence of a startling event.
The Attorney General discusses the Merriman case at length, as if it
supported admitting Doe 1’s disclosure to Shannon. (See Merriman, supra,60 Cal.4th at pp. 65–69.) On the contrary, Merriman discusses the
admissibility of three different statements as potentially spontaneous, and
none of its analysis supports the prosecution here. The adult declarant’s first
statement in Merriman was made just minutes after she was grabbed by the
neck and choked. (Id. at pp. 65–66.) The lack of delay between that crime
and its disclosure distinguishes the statement from our case. The second
statement by the same declarant involved a disclosure to her mother on the
morning after an attempted sexual assault. The Supreme Court declined to
decide whether this statement had been properly admitted, assumed it had
not, and concluded any error was harmless. (Id. at pp. 67–69.) Of course, an
assumed error is of no help to the Attorney General here. The third
statement was the same victim’s account of the same attempted sexual
assault, this time disclosed “ ‘within a few days’ of the incident” to her
girlfriend over the phone. (Id. at p. 70.) Although the declarant was “crying
and upset” while disclosing the crime to her friend, the statement was
properly not admitted as a spontaneous statement, the high court opined, as
that “would have contravened the hearsay rule.” (Id. at pp. 70–71.)
To be sure, it must have been exceedingly distressing for Doe 1 to
reveal the pattern of molestation that had been taking place for years, but
the substance of her disclosure falls outside the bounds of the exception for
spontaneous statements. As with the child witness in Gutierrez, there is
nothing to indicate that Doe 1’s reflective powers were in abeyance
throughout the extended time between the onset of the events she described
16
and her disclosure of them, even acknowledging that the events were
exceedingly traumatic. (See Gutierrez, supra, 45 Cal.4th at p. 812.)
The Attorney General makes much of the final incident of sexual
molestation, the day before Doe 1 disclosed to her mother. He posits this
incident was the startling occurrence that caused Doe 1 fresh stress and
made her disclosure to Shannon admissible. A problem with this theory is
that Doe 1’s disclosure to her mother was not about the events of the previous
day; it was about a continuing pattern of conduct that took place over a
period of years. (See Poggi, supra, 45 Cal.3d at p. 318 [“ ‘utterance must
relate to the circumstances of the occurrence preceding it’ ”].) Indeed, the
portion of Doe 1’s statement that was most important to the prosecution’s
case was that the molestation had been ongoing since she was 11 years old.
The record simply does not support a conclusion that Doe 1 disclosed this
conduct “ ‘before there ha[d] been time’ ” to reflect on it. (Ibid.)
We are confirmed in this view by Doe 1’s statements to the responding
officer—made immediately after she spoke to her mother and while still very
emotional—which show that Doe 1 not only had the opportunity to reflect on
how to respond to defendant’s molestation, she actually did reflect. She told
the officer who came to the scene that two days previously she sat on the side
of her bed and asked herself what she was doing with a man 20 years her
senior, decided she no longer wanted to be involved with defendant, and
asked to talk to him. The following day she gave him an ultimatum—“ ‘[L]et
me talk to your wife or I have to call the cops’ ”—because she understood
defendant had been lying about his relationship with his wife. “ ‘I’m not
stupid anymore,’ ” she warned. The trial court appears to have accepted the
People’s argument that Doe 1 spoke to Shannon under the stress of defendant
“us[ing] her again sexually” after she concluded she “can’t take it any more,”
17
but her own words in the same statement to the reporting officer show she
reflected on how to stop defendant’s molestation even before the final sexual
encounter.
Doe 1’s statements to the detectives later the same day underline that
Doe 1 reflected on her decision to disclose the abuse to her mother. As she
told the detectives, after a couple of days thinking about the problem she
“figured that today I had to tell my mom finally,” and then, before acting on
that decision, she told defendant she would tell her mother and call the police
because she no longer wanted to protect him, as he was lying to, and hurting,
her. Nothing about this explanation, or any of Doe 1’s other statements,
focuses specifically on the final incident, as opposed to the years-long pattern,
of defendant’s sexual abuse.
The trial court refused to consider the full factual context for Doe 1’s
disclosure to Shannon, explaining it could not consider Doe 1’s testimonial
hearsay for context on her decision to disclose the molestation. But it is well
established that the Confrontation Clause “limits the evidence a State may
introduce without limiting the evidence a defendant may introduce. . . .”
(Giles v. California (2008) 554 U.S. 353, 376, fn. 7, italics added.) And by
concluding that Doe 1’s statement to Shannon was precipitated by defendant
“us[ing] her again sexually” “after her feeling like I can’t take it any more,”
the trial court actually did rely on Doe 1’s testimonial statement to the
responding officer. Other portions of that statement show she deliberated on
reporting the sexual abuse, and we see no basis for considering only part of
the statement in determining whether Doe 1’s words to Shannon were
spontaneous. As for Doe 1’s interview with the detectives, we note that at
least one court has taken account of inadmissible testimonial hearsay for the
limited purpose of considering whether a different statement qualified as
18
spontaneous under section 1240. (Pirwani, supra, 119 Cal.App.4th at pp.
774, 777, 786–787, 789–790; see also Evid. Code, § 1251 [statement by
unavailable declarant of previously existing mental state of mind, including
intent or plan, admissible to prove such state of mind where it is at issue in
action].)
A trial court abuses its discretion when it “fails to consider a relevant
factor that deserves significant weight.” (In re White (2020) 9 Cal.5th 455,
470.) Doe 1’s near-contemporaneous words to the police are directly relevant
to her “ ‘mental state’ ” when she disclosed the abuse to Shannon—the
“ ‘crucial element’ ” in determining whether the evidence fell within the
hearsay exception for spontaneous statements. (Raley, supra, 2 Cal.4th at
p. 892.) They show Doe 1’s statement does not fall within the scope of section
1240.
We emphasize that we do not hold there could never be a circumstance
in which disclosure of longstanding or ongoing sexual abuse could be treated
as a spontaneous statement. A different question might be presented, for
instance, if a child was too young to understand the nature of defendant’s
acts and reported them later, upon suddenly gaining that understanding.
(See People v. Brown (1994) 8 Cal.4th 746, 758 [child victim may be “unaware
of the wrongful nature of the conduct or that what has occurred is not
‘normal’ ”].) But that is not the case before us, and we have no occasion to
consider factual scenarios that might arise in other cases.
We thus conclude the trial court abused its discretion in finding Doe 1’s
statement to Shannon was a spontaneous outpouring made without
deliberation and reflection. (See Gutierrez, supra, 45 Cal.4th at p. 812;
Ramirez, supra, 143 Cal.App.4th at pp. 1524–1525.) We applaud Doe 1’s
bravery in speaking up to expose defendant’s crimes and do not ignore her
19
anguish. But her statement to her mother that defendant had been abusing
her for years was not admissible under section 1240.3
2. Prejudice
The Attorney General argues that any error in the admission of Doe 1’s
statement was harmless. Even if a trial court abuses its discretion in
admitting hearsay evidence, we do not reverse unless there is a reasonable
probability the defendant would have achieved a more favorable result absent
the out-of-court statement. (Merriman, supra, 60 Cal.4th at p. 69; People v.
Watson (1956) 46 Cal.2d 818, 836.)
As to the counts alleging sexual crimes against Doe 1 occurring in the
six-year period ending on the day she made her report—that is, counts 2, 3, 5,
and 6—we conclude there is no showing of prejudice. There was abundant
evidence of sexual contact between defendant and Doe 1, including physical
evidence in the form of injuries to her genitals, her DNA on his genitals, his
DNA on her breast, and his semen on the bedding in a room with her
belongings. There were condoms and birth control pills in Doe 1’s name in
the apartment defendant rented; text message exchanges beginning in
November 2016 indicating a romantic or sexual relationship, including one in
which defendant told Doe 1 she needed “the pill”; and sexually explicit
pictures of Doe 1 on defendant’s phone. Finally, defendant admitted
engaging in vaginal and oral sex with Doe 1 on multiple occasions beginning
when she was 15 years old. In light of this overwhelming evidence of recent
sexual relations with Doe 1, we see no possibility that defendant would have
achieved a more favorable result on counts 2, 3, 5, or 6 if the jury had not
heard of her statement to Shannon.
3We do not address the admissibility of any portion of Shannon’s
testimony other than her recounting of Doe 1’s words to her.
20
There is no physical evidence directly supporting count 4, in which
defendant was convicted of a lewd act on a child 14 or 15 years of age, but we
similarly conclude there was no prejudice as to this count from admission of
Doe 1’s statement. Defendant admitted he had sexual relations with Doe 1
when she was 15 “[a]nd months,” or “15 almost 16.” In light of this admission
and the other evidence of an ongoing sexual relationship, there is no
reasonable probability the jury would not have convicted him on count 4 if it
had not heard Doe 1’s statement to Shannon.
As to the remaining count regarding Doe 1, however, we reach a
different conclusion. In count 1, defendant was convicted of a lewd act on a
child under the age of 14. Absent Doe 1’s statement that the sexual abuse
began when she was 11 years old, the evidence supporting this count is
almost entirely Miguel’s testimony. Miguel testified that defendant began
spending time alone with Doe 1 in the evenings when she was 11 or 12 years
old, saying they were going to the gym or to defendant’s lounge bar; that they
began to appear more comfortable together when Doe 1 was 12 years old; that
Doe 1 became secretive about where she went with defendant and what they
did; that defendant began dropping Doe 1 off around the corner instead of in
front of her apartment; and that one evening when Doe 1 was 13 years old,
she asked defendant in secret if she could call him “ ‘babe,’ ” and he
responded by admonishing her to “ ‘keep it quiet,’ ” suggesting a romantic
relationship he did not want known. In addition, a detective who
investigated the case testified, based on his experience and training, that it
was common for victims of child sexual abuse to show personality and
behavioral changes around the time of the abuse. Defendant did not admit to
any sexual contact with Doe 1 before she was 15 years old.
21
In our view, the admissible evidence would have been sufficient to
support a conviction of committing a lewd act against a child under the age of
14. This is an offense that is “ ‘defined expansively to include contact “upon
or with the [victim’s] body, or any part or member thereof’ ”; it is not
restricted to contact with specific or intimate body parts. (People v. Lopez
(2010) 185 Cal.App.4th 1220, 1231; § 288, subd. (a).) The jury might
reasonably have inferred from the totality of the evidence that defendant’s
romantic relationship with Doe 1 had already progressed to physical contact
within the scope of section 288 before she reached the age of 14.
Nevertheless, the admissible evidence specific to that offense is not
overwhelming. In particular, we do not know how the jury assessed Miguel’s
credibility. We thus conclude it is reasonably probable that, had the jury not
heard Doe 1’s statement that defendant had been molesting her since she was
11 years old, one or more of the jurors would have found the circumstantial
evidence insufficient to establish beyond a reasonable doubt that defendant’s
lewd acts began before Doe 1 was 14 years old.
The conviction on count 1 must therefore be reversed. On remand the
People may elect to retry defendant on count 1.
II. Corpus Delecti
Defendant contends the People did not establish the corpus delecti for
his offenses against Doe 1. The corpus delecti rule “ ‘requires corroboration of
the defendant’s extrajudicial utterances insofar as they indicate a crime was
committed, and forces the People to supply, as part of their burden of proof in
every criminal prosecution, some evidence of the corpus delecti aside from, or
in addition to, such statements.’ ” (People v. Krebs (2019) 8 Cal.5th 265, 317.)
The purpose of this rule “is to assure that ‘the accused is not admitting to a
crime that never occurred.’ [Citation.] The amount of independent proof of a
22
crime required for this purpose is quite small; [it has been] described . . . as
‘slight’ [citation] or ‘minimal’ [citation]. The People need make only a prima
facie showing ‘ “permitting the reasonable inference that a crime was
committed.” ’ [Citations.] The inference need not be ‘the only, or even the
most compelling, one . . . [but need only be] a reasonable one.’ ” (People v.
Jones (1998) 17 Cal.4th 279, 301–302.)
That low standard is easily met here by the evidence we have already
recited, which, independent of defendant’s admission and Doe 1’s statement
to her mother, supports a reasonable inference of ongoing sexual contact
between him and Doe 1. Defendant points out that the People’s DNA expert
did not offer an opinion about how defendant’s DNA got onto Doe 1’s breast or
how her DNA got onto his genitals, and she testified that DNA could be
transferred in any number of ways. These could include, defendant posits,
Doe 1 and defendant transferring DNA by touching each others’ hands, then
transferring the DNA onto their own bodies through ordinary activities such
as urination. But while that may be possible, it is also a reasonable inference
that the DNA was transferred to genitals and breast through sexual
activity—an inference that is all the more reasonable in light of the evidence
that defendant rented an apartment where he could spend time with Doe, left
his semen on the bedding in the room containing her belongings, and had on
his phone texts and photographs that suggested a sexual relationship. Also,
Miguel’s testimony provides evidence that defendant’s improper relationship
with Doe 1 began before she was 14 years old. We accordingly reject
defendant’s challenge based on the corpus delecti rule.
III. Multiple Victim Enhancements
The jury found true allegations that there were multiple victims of
defendant’s four offenses of lewd acts against a child under the age of 14
23
(§ 288, subd. (a)), for purposes of sections 667.61, subd. (j)(2) and 1203.066,
subd. (a)(7). One of those offenses, count 1, was against Doe 1, and three of
them, counts 7, 8, and 9, were against Jane Doe 2. In pertinent part, section
667.61, subd. (j)(2) provides for a sentence of 25 years to life in prison for
those who have committed a violation of section 288 against more than one
victim (§ 667.61, subds. (c)(4), (e)(4), & (j)(2)), and section 1203.066 limits
their eligibility for probation, suspension of sentence, or striking of
enhancements (§ 1203.066, subd. (a)(7)).
Defendant contends these enhancements must be stricken because his
conviction on count 1—the only violation of section 288 in which Doe 1 was
the victim—was based on inadmissible hearsay. Because we conclude the
conviction on count 1 must be reversed, we agree that the multiple victim
enhancements must be conditionally reversed. If on remand defendant is
again convicted on count 1, these multiple victim enhancements must be
reinstated.
IV. Statute of Limitations for Offenses Against Doe 2
Lozano’s final contention also rests on the asserted inadmissibility of
Doe 1’s statement to Shannon.
The offenses against Doe 2, lewd acts on a child under the age of 14
(§ 288, subd. (a)), occurred between August 1997 and August 1998, so the
ordinary six-year statute of limitations had long since run when defendant
was charged with these crimes. (§ 800; see People v. Smith (1985) 171
Cal.App.3d 997, 1001.) However, this limitations period may be extended
under certain circumstances. If a person of any age reports being a victim of
a violation of section 288 and the normal limitations period has expired, a
criminal complaint may be filed within one year if the crime involved
substantial sexual conduct and “[t]here is independent evidence that
24
corroborates the victim’s allegation. If the victim was 21 years of age or older
at the time of the report, the independent evidence shall clearly and
convincingly corroborate the victim’s allegation.” (§ 803, subd. (f)(1) & (2).)
That evidence must be admissible at trial (§ 803, subd. (f)(3)), but it need not
be sufficient to support a conviction. (People v. Ruiloba (2005) 131
Cal.App.4th 674, 683.)
“Evidence of a person’s propensity to do what the victim has alleged
corroborates the victim’s allegation.” (Ruiloba, supra, 131 Cal.App.4th at
p. 683, citing People v. Mabini (2001) 92 Cal.App.4th 654, 659; see People v.
Zandrino (2002) 100 Cal.App.4th 74, 85 [“evidence that the defendant
committed a similar sexual offense against a different victim can indeed
constitute sufficient corroboration for purposes of [former] section 803[,
subd. ](g)”].) And an act that “shows a defendant’s propensity to commit
sexual offenses against a child . . . [may] corroborate all of the charged
offenses even if it does not particularly corroborate any specific offense.”
(Ruiloba, at p. 683.)
Doe 2 reported the crimes against her in 2017, and the complaint was
filed against defendant on September 13, 2017. The jury found the crimes
involved substantial sexual conduct, so the only remaining question is
whether there was sufficient independent corroboration to allow an extension
of the limitations period under section 803, subdivision (f).
Part of the evidence offered to corroborate Doe 2’s allegations was that
defendant’s behavior toward Doe 1 showed a propensity to commit such acts.
In closing, the prosecutor pointed out parallels between the two sets of
crimes: both girls were vulnerable pre-teens or early teens when defendant
began providing them with alcohol and taking them to hotel rooms for sex.
With each, defendant cultivated a long-term relationship, hiding his own
25
family commitments and leading the girls to think of him as their boyfriend.
The prosecutor also pointed out that Doe 2 said defendant used the same
brand of condom that was found in the apartment on Garrity Way. The jury
was instructed that if it concluded defendant committed sexual offenses
against Doe 1, it could consider that as independent corroboration of Doe 2’s
allegations.
Based on his contentions that Doe 1’s statement to Shannon was
inadmissible and that therefore all of his convictions of sexual offenses
against Doe 1 should fall, defendant contends there is no independent
corroboration of Doe 2’s allegation so as to extend the statute of limitation.
This claim fails. The jury found defendant committed multiple sexual
offenses against Doe 1, which it was instructed could be considered as
independent corroboration of Doe 2’s allegations, and we uphold all but one of
defendant’s convictions for sexual offenses against Doe 1. There was also
evidence, through the testimony of Miguel, that beginning when Doe 1 was
11 or 12 years old, defendant’s behavior toward her was inappropriate; he
began spending time alone with her several evenings a week and their
relationship had developed enough by the time she was 13 that she asked if
she could call him “ ‘babe.’ ” The admissible evidence is ample to support the
jury’s finding that the statute of limitations was extended. Even without Doe
1’s statement that the molestation began when she was 11 years old, we see
no possibility the jury would have found Doe 2’s testimony was not
corroborated for purposes of section 803, subdivision (f).
DISPOSITION
Defendant’s conviction on count 1 is reversed. On remand, defendant
may be retried on count 1 in a manner consistent with the views expressed in
this opinion. The true findings as to the multiple-victim enhancement
26
allegations under sections 667.61, subdivision (j)(2) and 1203.066,
subdivision (a)(7), related to counts 1, 7, 8, and 9, are conditionally reversed.
If on remand defendant is again convicted on count 1, the multiple-victim
enhancements shall be reinstated. In all other respects, the judgment is
affirmed.
TUCHER, P.J.
WE CONCUR:
FUJISAKI, J.
PETROU, J.
People v. Lozano (A165646)
27
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Terri A. Mockler
Counsel: Barry L. Morris, under appointment by the Court of
Appeal, for Defendant and Appellant
Rob Bonta, Attorney General of California, Lance E.
Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Senior Assistant Attorney General,
Noah P. Hill, Supervising Deputy Attorney General,
and Heidi Salerno, Deputy Attorney General for
Plaintiff and Respondent
28