People v. Brown

Filed 5/23/18
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A144372
v.
REGINALD BROWN, (Alameda County
Super. Ct. No. CH54151)
Defendant and Appellant.
A jury found defendant Reginald Brown guilty of one count of continuous sexual
abuse of a child under the age of 14 years old and eight counts of lewd acts upon a child
under the age of 14 years. In all, there were three victims, Jane Does 1, 2, and 3.
Brown’s primary contention on appeal is that the six convictions of lewd acts upon Jane
Doe 3 (Pen. Code,1 § 288, subd. (a)) are barred by the statute of limitations.
The crimes of conviction as to victim Jane Doe 3 occurred over the course of
about two years ending in 1994 when Jane Doe 3 was around 13 years old, but Brown
was not charged until February 2013. At the time of the offenses, the statute of
limitations was six years, subject to a one-year extension when a victim first reports the
offenses to law enforcement. Specifically, section 803 provides an extension of the
statute of limitations for certain sex offenses—including violation of section 288—
allowing the filing of a criminal complaint within one year of a report to a law
enforcement agency by a person alleging he or she was the victim of such an offense
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part II of the Discussion.
1
Further undesignated statutory references are to the Penal Code.
1
under the following circumstances: (1) the victim was under 18 years of age at the time
of the offense, (2) the limitations period has expired, (3) the offense involved substantial
sexual conduct, and (4) there is independent evidence corroborating the victim’s
allegation. (See § 803, subd. (f); former § 803, subd. (g), added by Stats. 1984, ch. 1270,
§ 2, as amended by Stats. 1993, ch. 390, § 1 (former § 803(g.)2)
Jane Doe 3, as an adult, reported Brown’s conduct to law enforcement in
December 2012, and he was charged in February 2013, less than one year later. But
Brown contends the prosecution of the offenses involving Jane Doe 3 is time-barred
because reports of Brown’s conduct were actually made much earlier, in 1994. In the
alternative, he argues there were issues that should have been determined by the jury. In
the published portion of this opinion, we conclude a report of sexual abuse made to law
enforcement by a person or agency other than the victim does not constitute a report by
the victim under former section 803(g), even if that report is based on the victim’s
allegations of abuse. In the unpublished portion of this opinion, we conclude Brown’s
remaining arguments are without merit. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Brown’s contentions on appeal do not require a detailed description of the facts
underlying his convictions, and we only briefly summarize them viewing the evidence in
the light most favorable to the prosecution. (People v. Linder (2006) 139 Cal. App. 4th 75,
79.)3
Jane Doe 3 was born in 1980. Growing up, she was family friends with Brown
and his family, and she viewed Brown as an uncle. When she was 11 or 12 years old,
2
This one-year extension has existed since 1994. (See former § 803(g); Ream v.
Superior Court (1996) 48 Cal. App. 4th 1812, 1815, 1820 (Ream).) Currently, a
substantively similar version of this one-year extension can be found at subdivision (f) of
section 803. The parties agree that former section 803(g) is the version of this statute of
limitations extension that applies in this case, however.
3
Also, because the offenses involving Jane Doe 1 and Jane Doe 2 are not relevant
to this appeal, we do not describe the facts underlying those offenses.
2
Jane Doe 3 went to Brown’s house “[a]ll the time” to play or get her hair done.4 Brown
would pick her up after school in his van and drive her to his house.
Jane Doe 3 testified Brown was sexually inappropriate with her multiple times
when she was alone with him in his van. He would park his van down the street from her
house, and she recalled, “it was a lot of touching on my legs, touching the inside of my
pants. And my hand being placed on his penis.” This happened more than 20 times over
the course of about two years. She did not tell anyone because she thought she would get
in trouble. On one occasion when she was 13 years old, Jane Doe 3 was playing outside
at Brown’s house, and he called her in the house and locked the door. Brown called her
to his bedroom and had her sit on the bed. He had sexual intercourse with her and orally
copulated her.5 This was the last incident of sexual contact between Jane Doe 3 and
Brown.
After the incident at Brown’s house, Jane Doe 3 told her mother about the abuse.
She testified that her mother believed her. The two of them went to Brown’s house, and
her mother told Brown and his girlfriend Selma what Jane Doe 3 said. Selma responded
that she did not believe the girl, and Brown smirked. Jane Doe 3 and her mother left
Brown’s house, and Jane Doe 3 never saw Brown again.
Jane Doe 3’s mother N.H. testified that, when her daughter was around 12 years
old, she told N.H. that Brown had done something inappropriate to her. Soon after this,
N.H. and Jane Doe 3 went to Brown’s house. N.H. confronted Brown and Selma about
what Jane Doe 3 said, and “they denied it.”
After they left Brown’s house, N.H. and Jane Doe 3 went to the Hayward Police
Department. N.H. testified, “I confronted the clerk [at the police station] and told them
4
At that time, Brown lived with his girlfriend Selma and her children. Selma and
her oldest daughter would do Jane Doe 3’s hair. Jane Doe 3 was also good friends with
one of Selma’s sons; they would ride bikes or play video games together.
5
This was not the first time Brown orally copulated her. He orally copulated her
more than once while they were parked in his van. He also had sexual intercourse with
Jane Doe 3 in his van. She was about 12 years old when this happened.
3
everything that was happening. But they didn’t write notes or anything, so I really didn’t
get any help.” Jane Doe 3 did not go inside the police station with her mother. N.H.
testified she did not receive any follow-up from the police, and she did not attempt to
follow up either.
Documentary evidence at trial showed that Jane Doe 3 and her mother reported
Brown’s conduct to Child Protective Services (CPS) in 1994. The prosecution presented
an Alameda County intake form titled “Alameda County Emergency Response Unit CPS
Intake Form,” which documents a report of sexual abuse made on November 2, 1994. It
includes the following handwritten narrative indicating that Jane Doe 3 personally
reported the abuse to CPS: “[Jane Doe 3] said she was not allowed to visit with a
particular uncle’s family because of something which happened 7 months ago. On being
questioned [redacted] she stated uncle had molested her—‘Ate me out’—. Occurred 3X.
When confronted by mo[ther] at the time, uncle denied it, aunt refused to believe it.
Mo[ther] doubted story but tended to believe dau[ghter]. Unclear if lack of contact for
past 7 mo. is because mo[ther] won’t let her go there for her protection or if it is because
uncle’s family said she can’t come back. No report was made to police. [¶] RP
[reporting party] is concerned re [redacted] relationship and would like to be called by
CWW [child welfare worker] before contact with family is made.” Brown’s name and
address were listed on the intake form.
A second document in evidence, described as an “Emergency Response Unit
Investigation Attachment” (investigative report) documents the steps CPS took after
receiving the report of sexual abuse. It shows a home visit was made to Jane Doe 3’s
home on November 4, and a social worker spoke with a counselor on November 14, who
was seeing Jane Doe 3. The document also shows, on November 12, 1994, “Cross-
reported molest to Officer Audrey Stevens.[6] The molester is allegedly Reggie Brown at
[address], telephone [telephone number].”
6
A witness at trial identified Audrey Stevens as a former administrative employee
of the Hayward Police Department. Her duties included handling CPS referrals.
4
Under the heading “Precipitating Incident Factors,” the investigative report reads,
“[Jane Doe 3] has reported that, at her dad’s house, she was twice sexually molested by
her uncle, Reggie Brown. . . . According to [Jane Doe 3], she states that her uncle
touched her private parts and licked her with his tongue . . . . [Jane Doe 3] says that she
thinks it happened about three times. [Her parents] have handled the situation by not
allowing Reggie Brown to have any contact with their daughter.” Under the heading
“Child Assessment Factors,” the document provides, “Apparently, [Jane Doe 3] is having
a somewhat difficult time . . . . The family believes that she was molested by Reggie
Brown and the parents have gone to the Alameda County Sheriff’s Department and
pressed charges. . . . [Jane Doe 3’s parents] . . . have decided the way to stop the problem
is simply no contact. Both Mr. and Mrs. [H.] can’t fathom this Mr. Brown doing any
kind of sexual molest, subsequently they are having somewhat of a difficult time
proceeding with what needs to be done toward prosecution, etc. They did, however,
follow through with the referral to the Alameda County Sheriff’s Department.” The CPS
case was closed in 1995.
At trial, Jane Doe 3 and her mother did not recall their dealings with CPS.
On December 6, 2012, when she was 32 years old, Jane Doe 3 went to the
Alameda County Sheriff’s Office and reported to Deputy Jason Hawks that Brown
molested her when she was a child. On February 15, 2013, an amended criminal
complaint was filed against Brown alleging he committed sexual abuse upon Jane Doe 3.
This was the first criminal complaint that named Jane Doe 3 as a victim.
DISCUSSION
I. The Statute of Limitations and Former Section 803(g)
A. Applicable Law
Former section 803(g) provides in full: “Notwithstanding any other limitation of
time described in this section, a criminal complaint may be filed within one year of the
date of a report to a law enforcement agency by a person of any age alleging that he or
she, while under the age of 18 years, was the victim of a crime described in Section 261,
5
286, 288, 288a, 288.5, 289, or 289.5. This subdivision shall apply only if both of the
following occur:
“(1) The limitation period specified in Section 800 or 801 has expired.
“(2) The crime involved substantial sexual conduct, as described in subdivision
(b) of Section 1203.066, excluding masturbation which is not mutual, and there is
independent evidence that clearly and convincingly corroborates the victim’s allegation.
No evidence may be used to corroborate the victim’s allegation which would otherwise
be inadmissible during trial. Independent evidence shall not include the opinions of
mental health professionals.”
Brown’s offenses against Jane Doe 3 occurred between June 1, 1993, and August
1, 1994. The statute of limitations for violation of section 288 at that time was six years.
(Former § 800, added by Stats.1984, ch. 1270, § 2; see Ream, supra, 48 Cal.App.4th at p.
1815, fn. 2.) The prosecution bears the burden of proving, by a preponderance of the
evidence, that a charged offense was committed within the applicable period of
limitations. (People v. Lopez (1997) 52 Cal. App. 4th 233, 248.) In this case, the
prosecution relied on the one-year statute of limitations extension of former section
803(g), alleging with respect to the counts involving Jane Doe 3, “It is further alleged
pursuant to Penal Code section 803(f) [sic7] . . ., that the victim in the above offense was
under 18 years of age at the time of the offense and reported said offense to a California
Law Enforcement agency on December 6, 2012.”
B. Analysis
Brown maintains that the six counts involving Jane Doe 3 (counts 6, 7, and 9
through 12) are barred by the statute of limitations. He argues that both the report by
7
As we have mentioned, the one-year statute of limitations extension allowing
prosecution of certain sex offenses within a year of a report to law enforcement by the
victim is currently found at subdivision (f) of section 803. (See People v. Linder, supra,
139 Cal.App.4th at p. 78, fn. 2 [statutory amendments to section 803 in 2005 designated
former subdivision (g) as subdivision (f)].) But the version of the statute of limitations
extension applicable to this case is former section 803(g).
6
Jane Doe 3’s mother to the Hayward Police Department in 1994 and the report made to
CPS (which was later passed on to the police) satisfy the requirement of a report to law
enforcement made by the victim under former section 803(g), and therefore Jane Doe 3’s
subsequent report to the Alameda County Sheriff’s Office in December 2012 did not
serve to extend the statute of limitations for one year. Brown raised these arguments in
three motions before the trial court—a motion to dismiss, a motion for judgment of
acquittal under section 1118.1, and a motion for new trial—which were denied.
Brown contends the trial court erred in denying the defense motions. We review
the trial court’s rulings de novo. (See Aryeh v. Canon Business Solutions, Inc. (2013) 55
Cal. 4th 1185, 1191 [“application of the statute of limitations on undisputed facts is a
purely legal question” reviewed de novo]; see also People v. Maciel (2013) 57 Cal. 4th
482, 522 [a motion under section 1181.1 is a question of law, subject to independent
review].)
We conclude Brown’s statute of limitations argument fails because Jane Doe 3
never reported her abuse to a law enforcement agency before December 2012. Reports of
abuse were made to law enforcement by Jane Doe 3’s mother and by CPS. But under the
plain language of the statute, former section 803(g) applies only to a report to law
enforcement made by the victim. As the Court of Appeal in Ream, supra, 48 Cal.App.4th
at page 1818, explained: “The relevant language of section 803(g) is clear and
unambiguous. A prosecutor may file a complaint charging any of the specified sex
offenses within [one] year of the date of ‘a report to a law enforcement agency by a
person of any age alleging that he or she, while under the age of 18 years, was the victim
of’ the offense. The statute makes no reference to a report by a person who is not a
victim. Indeed, the statute requires ‘independent evidence that clearly and convincingly
corroborates the victim’s allegation’ (italics added) and proscribes evidence not
admissible during trial ‘to corroborate the victim’s allegation’ (italics added).”
In Ream, the defendant was charged with three counts of violation of section 288
after the six-year statute of limitations had expired. The only evidence linking the
defendant to the charges was 10 Polaroid pictures that the defendant’s wife had turned
7
over to law enforcement. The victim shown in the photographs was six or seven years
old when the photographs were taken and was 13 years old at the time she spoke to an
investigator. The victim apparently was not aware that she had been molested; she
denied that the defendant molested her.8 (Ream, supra, 48 Cal.App.4th at pp. 1815–
1816.) The defendant filed a motion to dismiss based on the statute of limitations, and
the prosecution argued the criminal case was timely because it was brought within one
year of the ex-wife reporting the crimes to law enforcement. The trial court denied the
defendant’s motion to dismiss, ruling that a report from a person not the victim would
satisfy former section 803(g). (Ibid.) The Court of Appeal, however, issued a
peremptory writ of mandate directing the court to dismiss the charges. (Id. at p. 1821.)
The Ream court relied on the plain meaning of the language of former section
803(g) to require a report from the victim. (Ream, supra, 48 Cal.App.4th at pp. 1817–
1818.) The court also considered the legislative history of the statute, which
“demonstrate[d] that the Legislature was concerned with the problem of child victims of
sex crimes who wait until they are adults to report sex offenses committed against them.”
(Id. at p. 1820.) The court noted, “Nothing in the legislative history suggests the
Legislature intended, despite the use of language inconsistent therewith, to extend the
statute of limitations upon the report of a non-victim . . . . If the Legislature had intended
th[is] result[], it would have expressly said so.” (Id. at p. 1821, fn. omitted.)
1. The Report to The Hayward Police Department
Here, Jane Doe 3’s mother’s report to the Hayward police was not a qualifying
report under former section 803(g) because, although the report was made to a law
enforcement agency, the victim did not make the report. Jane Doe 3’s mother made the
report while Jane Doe 3 remained in the car. As the trial court explained in denying
Brown’s motion to dismiss, a report to law enforcement must be made by the victim
8
The facts of Ream are unusual. Not only did the victim not report the offenses,
when—at age 13 years old—she was questioned about the defendant’s conduct, the
victim seemed unaware that she had been molested when she was six or seven years old.
(Ream, supra, 48 Cal.App.4th at pp. 1815–1816.)
8
herself, and Jane Doe 3’s mother’s “actions [in 1994] were not sufficient to trigger the
statute of limitations.”
Brown asserts nothing in Ream or the legislative history of former section 803(g)
“suggests that [the] report to law enforcement must have come directly from the mouth of
the victim.” But this ignores the language of the statute itself, which requires “a report to
a law enforcement agency by a person” alleging he or she was the victim of abuse.
(Former § 803(g), italics added.) A report by a person other than a victim to law
enforcement is not a report by the victim.
Further, as Ream reasoned, “The Legislature may well have recognized that
youthful victims of sexual abuse may be dissuaded from reporting abuse at the time of its
occurrence by shame, fear of the consequences, intimidation by the abuser, or
psychological trauma.” (Ream, supra, 48 Cal.App.4th at p. 1819.) As the Attorney
General posits, “the solution the Legislature provided was to give no limit to the time that
a victim, once grown, may report certain types of sex abuse to law enforcement, should
she herself decide to initiate the process.” We agree with the Attorney General that it is
reasonable the Legislature would “leave the ultimate prerogative to the victim to decide
whether she feels prepared to go forward with initiating law enforcement involvement.”
Brown also argues Jane Doe 3’s mother’s report to the police should be considered
a report by Jane Doe 3 herself because her mother acted as her agent. We are not
persuaded. Brown cites Family Code section 7601, subdivision (b), and Civil Code
sections 2299, 2316, and 2330, but these statutes do not create an agency relationship
between a parent and child for purposes of interpreting the Penal Code.9 Nothing in these
9
Family Code section 7601, subdivision (b) provides, “ ‘Parent and child
relationship’ as used in this part means the legal relationship existing between a child and
the child’s natural or adoptive parents incident to which the law confers or imposes
rights, privileges, duties, and obligations. The term includes the mother and child
relationship and the father and child relationship.” By its terms, the definition of Family
Code section 7601, subdivision (b), is for use in “this part,” referring to the Uniform
Parentage Act (see Fam. Code, §§ 7600 et seq.).
9
statutes suggests that, in interpreting former section 803(g), the phrase “by a person of
any age alleging that he or she, while under the age of 18 years, was the victim of a
crime” must be read to mean “by a person . . . [alleging he or she] was the victim of a
crime or by such a victim’s parent.” In this matter, “our role is to interpret the language
of the statute, not to rewrite the statute.” (McGee v. Balfour Beatty Construction, LLC
(2016) 247 Cal. App. 4th 235, 244.)
2. The CPS Report
The report to CPS was not a qualifying report under former section 803(g) either.
Although the documentary evidence shows Jane Doe 3 spoke to CPS about Brown’s
abuse, she made her report to a social worker, not a law enforcement agency.10 The CPS
investigative report notes that the molestation allegations were “[c]ross-reported” by CPS
to the Hayward Police Department on November 12, 1994. Brown argues that, because
the cross-report was based on a report that originated with the victim, this should qualify
as a report to law enforcement by the victim. Again, we are not convinced. “[T]the
language of section 803(g) clearly and unambiguously requires that the report be made by
the victim.” (Ream, supra, 48 Cal.App.4th at p. 1815.) A report to a law enforcement
agency by CPS is not a report by the victim.
The Attorney General observes that if the Legislature had intended to trigger the
statute of limitations extension through a report to a parent or CPS worker, it knew how
to do so and could have done so. We agree with the Attorney General’s reasoning. If the
Civil Code section 2299 provides, “An agency is actual when the agent is really
employed by the principal.” Civil Code section 2316 provides, “Actual authority is such
as a principal intentionally confers upon the agent, or intentionally, or by want of
ordinary care, allows the agent to believe himself to possess.” Civil Code section 2330
provides, “An agent represents his principal for all purposes within the scope of his actual
or ostensible authority, and all the rights and liabilities which would accrue to the agent
from transactions within such limit, if they had been entered into on his own account,
accrue to the principal.”
10
In his motion for judgment of acquittal under section 1118.1, Brown argued that
CPS should qualify as a law enforcement agency under former section 803(g). He does
not make this argument on appeal.
10
Legislature intended a report to law enforcement by a victim’s parent or by CPS to
trigger the statute of limitations extension of former section 803(g), we believe it would
have done so by explicitly.
In sum, neither the report by Jane Doe 3’s mother to the Hayward Police
Department nor the cross-report to the Hayward Police Department by CPS was a report
by the victim under former section 803(g).11 Because Jane Doe 3’s report of abuse to the
Alameda County Sheriff’s Office in December 2012 was the first report of abuse to law
enforcement by the victim, the criminal complaint filed in February 2013 was timely
under former section 803(g). Consequently, the trial court did not err in denying Brown’s
motions based on the statute of limitations.
II. Failure to Submit the Statute of Limitations Issue to the Jury
Brown next contends the trial court erred in declining to allow the jury to resolve
the statute of limitations issue.
A. Procedural Background
After his motion for judgment of acquittal was denied, Brown requested that the
trial court give a proposed jury instruction on whether the charges related to Jane Doe 3
were timely.12 Brown’s proposed instruction would have specifically informed the jury,
11
Because we conclude no report to law enforcement by the victim was made
before December 2012, we need not consider whether there was a report that alleged
“substantial sexual conduct” as required by People v. Superior Court (Maldonado)
(2007) 157 Cal. App. 4th 694, 698 (Maldonado) [“the one-year period of limitations under
that provision does not begin to run upon a report of unlawful sexual conduct that does
not include allegations of substantial sexual conduct”].) Nor need we address Brown’s
argument that Maldonado was wrongly decided.
12
The jury was instructed that it had to find the charges related to Jane Doe 3
involved “substantial sexual conduct” as required under former section 803(g). The jury
was instructed: “For counts 6 through 12, the People must also prove by a preponderance
of the evidence that the act engaged in by the defendant was an act of substantial sexual
conduct. [¶] Substantial sexual conduct means oral copulation or masturbation of the
child’s or perpetrator’s vagina or rectum by the other person’s penis or any foreign
object. [¶] Proof by a preponderance of the evidence is a different burden of proof from
11
“Doe [3] personally reported these crimes to a law enforcement agency for the first time
on either November 4, 1994, or December 6, 2012.”13 The jury then would have been
asked to determine on which of these two dates the first report occurred.
Brown’s attorney acknowledged that the trial court had ruled as a matter of law
that neither the report to CPS nor the cross-report to the police by CPS qualified as a
report to a law enforcement agency within the meaning of former section 803(g), a
conclusion that we now affirm was correct. But, he argued, the jury could nonetheless
infer that Jane Doe 3 personally reported Brown’s conduct to law enforcement based on
the CPS investigative report. Brown’s attorney relied on the generalized statements in
the report that “[t]he family believes that she was molested by Reggie Brown and the
parents have gone to the Alameda County Sheriff’s Department and pressed charges,”
and that “[t]hey did . . . follow through with the referral to the Alameda County Sheriff’s
Department.” He also relied on the statement, “The family has been helpful in allowing
[the social] worker to talk to [Jane Doe 3] and [redacted] and has followed through with
the referral to Alameda County Sheriff’s Dept.” He argued this showed “some members
of [Jane Doe 3’s] family” went to the Sheriff’s Office and it would be reasonable to infer
proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if
you concluded that it is more likely than not that the fact is true.”
13
In full, Brown’s proposed jury instruction read as follows: “The defendant may
not be convicted of the crimes charged in Counts 6-12 unless the prosecution began
within one year of the date the crimes were personally reported by [] Doe [3] to a law
enforcement agency for the first time.
“The People have the burden of proving by a preponderance of the evidence that
prosecution of this case began within the required time. [¶] This is a different standard of
proof than proof beyond a reasonable doubt. To meet the burden of proof by a
preponderance of the evidence, the People must prove that it is more likely than not that
prosecution of this case began within the required time.
“[] Doe [3] personally reported these crimes to a law enforcement agency for the
first time on either November 4, 1994, or December 6, 2012. Prosecution of Counts 6-12
began on February 15, 2013. [¶] If the People have not met this burden, you must find
the defendant not guilty of the crimes charged in Counts 6-12.”
12
that, “as part of that process of following up with the Alameda County Sheriff’s Office,
[Jane Doe 3] personally reported to the Sheriff’s Office essentially the same facts that are
contained in the CPS report . . . .”
The trial court declined to give the proposed jury instruction, finding the inference
Brown urged was “far too speculative and unsupported by the record.”
B. Analysis
Brown argues on appeal that the jury should have been allowed to decide the
following “factual questions”: (1) whether Jane Doe’s mother acted as “a parent/agent”
on her daughter’s behalf when she reported the abuse to the Hayward police; (2) whether
the mother’s report involved “substantial sexual conduct” as required under Maldonado,
supra, 157 Cal. App. 4th 694; (3) whether CPS acted as Jane Doe 3’s agent in cross-
reporting Jane Doe 3’s allegations to the Hayward police; and (4) whether Jane Doe 3
personally reported Brown’s conduct to law enforcement when her family “followed
through” with the referral to Alameda County Sheriff’s Department.
The first and third questions are legal issues, and we have rejected Brown’s
argument that a report by a person other than the victim triggers the one-year extension of
the limitations period under former section 803(g). The second question is irrelevant
because the mother’s report to the Hayward police was not a report by the victim in any
event. (See fn. 11, ante.)
That leaves the fourth question, whether Jane Doe 3 herself personally reported
Brown’s conduct to the Alameda County Sheriff’s Office. The answer to this question
depends entirely on the CPS investigative report that Brown relies on, and whether it
provides evidence from which a jury could reasonably infer that Jane Doe 3 personally
reported Brown’s conduct to law enforcement. The parties agree that there is no dispute
about what the CPS investigative report says. It refers to “the parents” going to the
Sheriff to press charges. The same paragraph states “Both Mr. and Mrs. [H.]” couldn’t
fathom Brown committing sexual molestation, and the next sentence reads, “They did,
however, follow through with the referral to Alameda County Sheriff’s Department.”
Fairly read, “They” refers back to Mr. and Mrs. H., Jane Doe 3’s parents. Nothing
13
suggests that family members other than Jane Doe 3’s parents went to the Sheriff’s
Office. Thus, we agree with the trial court that Brown’s assertion that Jane Doe 3
personally reported abuse to law enforcement was purely speculative. Certainly, there
was no evidence to support Brown’s requested instruction that “Doe [3] personally
reported these crimes to a law enforcement agency for the first time on . . . November 4,
1994.” Because no reasonable jury could have found for Brown on this issue, the trial
court did not err in declining to give the requested instruction. (People v. Marshall
(1996) 13 Cal. 4th 799, 848.)14
DISPOSITION
The judgment is affirmed.
14
In People v. Zamora (1976) 18 Cal. 3d 538, cited by Brown, our Supreme Court
held that the trial court had the authority to hold an evidentiary hearing for purposes of
determining whether as a matter of law the statute of limitation barred the prosecution.
(Id. at p. 563, fn. 25.) The court observed, “If the People prevail after such a hearing,
then the limitation issue must still be resolved by the jury if it remains disputed by the
defendant.” (Ibid.) This assumes, however, that the defendant’s factual dispute is
supported by substantial evidence. (See People v. Hendricks (1988) 44 Cal. 3d 635, 643
[“It is of course the rule that the court is under no duty to give a requested instruction
when there is no substantial evidence in support.”].) Here, no substantial evidence
supports Brown’s theory that Jane Doe 3 personally reported the abuse to law
enforcement in November 1994.
14
_________________________
Miller, J.
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.
A144372, People v. Brown
15
Court: Alameda County Superior Court
Trial Judge: Hon. Kevin R. Murphy
Kyle Gee, under appointment by the Court of Appeal for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General,
Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin,
Supervising Deputy Attorney General, Hanna Chung, Deputy Attorney General, for
Plaintiff and Respondent.
A144372, People v. Brown
16