People v. Franco CA2/6

Filed 6/28/23 P. v. Franco CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B322552
(Super. Ct. No. 2021011740)
Plaintiff and Respondent, (Ventura County)
v.
RODOLFO FERNANDEZ
FRANCO,
Defendant and Appellant.
Rodolfo Fernandez Franco appeals from the judgment
entered after a jury had convicted him of five sexual offenses
committed against three victims. Counts 1 through 3 involved
the same victim – Nicole E. Count 1 charged forcible rape (Pen.
Code, § 261, subd. (a)(2));1 count 2 charged forcible oral
copulation (former § 288a, subd. (c)(2)(A), now § 288, subd.
(c)(2)(A)); and count 3 charged forcible sodomy. (§ 286, subd.
Unless otherwise stated, all statutory references are to
1
the Penal Code.
(c)(2)(A).) Count 4 charged forcible oral copulation upon J.A., and
count 5 charged assault with intent to commit rape upon Shirley
G. As to counts 1 through 4, the jury found true an allegation
that in the present case appellant was convicted of committing a
sexual offense against more than one victim. (§ 667.61, subd.
(e)(4).) The trial court sentenced appellant to prison for a
determinate term of four years on count 5 plus a consecutive
indeterminate term of 60 years to life on counts 1 through 4.
In his 103-page opening brief, appellant argues: (1) the trial
court erred in admitting Shirley G.’s statements to the police
under the spontaneous statement exception to the hearsay rule;
(2) the admission of Shirley G.’s statements violated his
constitutional right to confront witnesses against him; (3) as to
his conviction of the forcible sodomy of Nicole E., he was denied
his constitutional right to effective assistance of counsel because
his trial counsel did not request a jury instruction on the defense
of accident or misfortune; (4) the court erroneously instructed the
jury that, if the defendant makes a mistake of fact as to the
victim’s consent to sexual relations, the mistake must be
reasonable; and (5) a $2,300 fine must be stricken because he
“lacked the ability to pay” it. We affirm.
Facts As to Nicole E. and Shirley G.
Although appellant was convicted of offenses committed
against three victims, the issues on appeal concern only two
victims – Nicole E. and Shirley G. We summarize the relevant
facts as to these two victims. We omit a summary of facts as to
the third victim, J.A.
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Nicole E.
In February 2003 Nicole E. gave appellant a ride in her
vehicle. She had never seen him before. When Nicole E. came to
a stop, appellant yanked the keys out of the ignition and started
choking her. He exposed his erect penis and forced her to orally
copulate it.
Appellant forced Nicole E. into the vehicle’s back seat. He
ripped her shirt open and sucked her right breast. He pulled off
her pants so she was “naked from the waist down.”
Appellant put his erect penis into Nicole E.’s anus. Nicole
E. screamed: “What are you doing? You are in the wrong hole.”
She “was in so much pain.”
Appellant removed his penis from Nicole E.’s anus and put
it inside her vagina. He had vaginal sex with her until he
ejaculated.
Nicole E. put her pants on and returned to the driver’s seat.
She screamed at appellant, “[G]et out of my car, get out of my
car.” She “gunned” the engine and “took off.” As she was driving
away, appellant “fell out [of] the car.”
It was not until 2021 that appellant was arrested for the
offenses committed against Nicole E. He was identified as the
perpetrator through DNA evidence retrieved during the
investigation of the sexual assault committed against Shirley G.
Shirley G.
Shirley G. was unavailable as a witness. Over appellant’s
objection, the trial court admitted her recorded call to a police
dispatcher and recorded conversation with a police officer.
At approximately 6:00 a.m. on December 20, 2020, Shirley
G. called the police from a call box in front of the police station.
Shirley G. said she needed to talk to an officer “[a]bout somebody
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almost killing me and sexually harassing me.” The incident
occurred “right here by the Episcopal church . . . on this street
and the next corner.” Shirley G. “chased . . . off” the suspect. The
police dispatcher said: “All right. Stay there, we’ll have an officer
talk to you.”
When Shirley G. spoke to the police dispatcher, Officer
Alexis Arellano was on patrol. In response to the dispatcher’s
call, he drove to the police station and contacted Shirley G. at
approximately 6:00 a.m. They had the following brief
conversation:
“AA [Officer Alexis Arellano]: Good morning, ma’am. How
are you?
“SG [Shirley G.]: I’m doing okay, now.
“AA: You can stay seated. What’s goin’ on? How can I help
you today?
“SG: Um, I was almost, uh, raped and the guy choked me
out. He was sexually harassing me.
“AA: Okay.
“SG: And then he grabbed me by my throat.
“AA: Where, where is this at?
“SG: Right here by the church.
“. . . .
“AA: Do you know this person?
“SG: No.
“AA: Okay. So, you were asleep to the rear of the church?
“SG: No. I was asleep under the cross.
“AA: Okay.
“SG: And I was on top of, um, this blanket that Melissa
from the church had gave me. . . .
“AA: Okay.
“SG: When this guy out of nowheres approached me and,
uh, then was talking about oh, it’s cold. Can I lay down
4
right here? After I told him no, I don’t wanna be bothered.
I don’t want nobody around me.
“. . . .
“AA: Okay. . . . [W]hat time was this all at, ma’am?
“SG: Just like within 5-10 minutes.
“AA: So, 5-10 minutes ago?
“SG: Yeah. Till you came out.
“AA: Okay.
“SG: I chased him down the alley. He went to the right and
then he went to the quick left.”
Officer Arellano testified that photographs of Shirley G.
depicted “the injuries which she indicated occurred as a result of
the incident.” He did not describe the injuries.
Appellant’s Testimony
Appellant testified that, during the early morning hours of
December 20, 2020, he “end[ed] up l[]ying next to Shirley G.,” a
homeless woman. Appellant continued: “I went inside in the
blankets with her. And I just wanted to stay warm and go to
sleep. And I just woke up and then at that moment she just told
me to leave.” They “got into an argument,” after which appellant
“got up and left.” He did not sexually assault her. “I was l[]ying
next to her -- with her, holding her, cuddling her and that's about
it.”
As to Nicole E., appellant insisted that she had consented
to vaginal intercourse. His penis may have touched her anus, but
did not penetrate it. Appellant testified: “[B]efore I went inside
her [vagina], I might have touched that part [her anus]. But she
told me not there. So I went back into her vagina and proceeded
to have sex with her.” Appellant denied forcing Nicole E. to
perform oral sex.
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The Trial Court Did Not Abuse Its Discretion in Admitting
Shirley G.’s Statements Under Evidence Code Section 1240
Appellant contends the trial court erroneously admitted
Shirley G.’s statements to the police. The statements were
admitted under Evidence Code section 1240 (section 1240), which
creates an exception to the hearsay rule for spontaneous
statements. Except as otherwise provided by law, the hearsay
rule excludes “evidence of a statement that was made other than
by a witness while testifying at the hearing and that is offered to
prove the truth of the matter stated.” (Evid. Code, § 1200.)
Section 1240 provides: “Evidence of a statement is not
made inadmissible by the hearsay rule if the statement: (a)
Purports to narrate, describe, or explain an act, condition, or
event perceived by the declarant; and (b) Was made
spontaneously while the declarant was under the stress of
excitement caused by such perception.” Appellant claims the
People failed to carry their burden of “introduc[ing] . . . facts
establishing the foundational requirement that Shirley G. made
[her] statements ‘under the stress of excitement’ as required by
Evidence Code section 1240, subdivision (b).”
“The admissibility requirements for such out-of-court
statements are well established. ‘“(1) [T]here must be some
occurrence startling enough to produce this nervous excitement
and render the utterance spontaneous and unreflecting; (2) the
utterance must have been 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 circumstance
of the occurrence preceding it.” [Citations.]’ [Citation.] A
statement meeting these requirements is ‘considered
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trustworthy, and admissible at trial despite its hearsay
character, because “in the stress of nervous excitement, the
reflective faculties may be stilled and the utterance may become
the instinctive and uninhibited expression of the speaker's actual
impressions and belief.” . . .’” People v. Merriman (2014) 60
Cal.4th 1, 64 (Merriman).)
“Whether an out-of-court statement meets the statutory
requirements for admission as a spontaneous statement is
generally a question of fact for the trial court, the determination
of which involves an exercise of the court's discretion. [Citation.]
We will uphold the trial court’s determination of facts when they
are supported by substantial evidence and review for abuse of
discretion its decision to admit evidence under the spontaneous
statement exception.” (Merriman, supra, 60 Cal. 4th at p. 65.)
“[D]iscretion is abused only when the court exceeds the bounds of
reason, all circumstances being considered.” (People v. Beames
(2007) 40 Cal.4th 907, 920.)
“We conclude the court acted well within its discretion in
finding [Shirley G.’s] statements . . . met the requirements of the
spontaneous statement exception. Because [her] statement[s] . . .
described a physical assault by [appellant], [they] clearly
satisfied the requirement that the statement[s] in question relate
to an occurrence that was startling enough to cause nervous
excitement.” (Merriman, supra, 60 Cal. 4th at p. 66.) Shirley G.
told the police dispatcher that her assailant had “almost kill[ed]”
her. She told Officer Arellano that her assailant had “almost . . .
raped” her and had “choked [her] out.” He “grabbed [her] by [the]
throat.”
“The record also amply supports the trial court’s [implied]
finding that [Shirley G.] spoke to [the police dispatcher and
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Officer Arellano] while she was under the ‘stress of excitement’
and before there was time to contrive or misrepresent what had
happened.” (Merriman, supra, 60 Cal.4th at p. 66.) Shirley G.
told Officer Arellano that the assault had occurred only five to
ten minutes earlier. The officer’s questioning of Shirley G. was
“simple and nonsuggestive.” (People v. Poggi (1988) 45 Cal.3d
306, 320.) The questioning did not “deprive [Shirley G.’s]
response of spontaneity by effectively placing words into [her]
mouth or . . . causing [her] to reflect and recollect [herself] before
[s]he answer[ed].” (Ibid.)
Appellant maintains “the prosecutor did not introduce any
evidence showing that Shirley G. actually suffered from the stress
of excitement when she made the statements to the [police
dispatcher] and the officer.” (Italics added.) But based on
Shirley G.’s description of the assault and the short time interval
between the assault and her statements to the police, the trial
court reasonably inferred that she was still under the stress of
excitement. When an appellate court reviews a trial court’s
decision for abuse of discretion, it “draw[s] all reasonable
inferences in support of the court’s ruling.” (Karton v. Ari Design
& Construction, Inc. (2021) 61 Cal.App.5th 734, 749.) The same
standard applies when an appellate court reviews a finding for
substantial evidence. (People v. Grant (2020) 57 Cal.App.5th 323,
330 [“‘Substantial evidence includes circumstantial evidence and
any reasonable inferences drawn from that evidence’”].)
In considering whether the requirements of section 1240
were met, “we cannot second-guess the trial court’s assessment of
the evidence in determining [the declarant’s] state of mind.”
(People v. Liggins (2020) 53 Cal.App.5th 55, 64.) In People v.
Lynch (2010) 50 Cal.4th 693, 754, states that various factors
8
“collectively appear to demonstrate that [the declarant’s] mental
state while describing the attack was thoughtful and reflective.”2
That is not the factual posture of the present case. Shirley G.’s
statements were not like the victim’s statement in Lynch, supra,
that were thoughtful and reflective, made some two hours after
the offense. (See also p.10, post.)
The Admission of Shirley G.’s Statements Did
Not Violate Appellant’s Right of Confrontation
Appellant claims the admission of Shirley G.’s out-of-court
statements violated his Sixth Amendment right to confront
witnesses against him. But the confrontation clause does not
apply to nontestimonial statements, and Shirley G.’s statements
were nontestimonial. “If a statement is not testimonial, ‘“it does
not implicate the confrontation clause, and the issue is simply
whether the statement is admissible under state law as an
exception to the hearsay rule.”’” (People v. Almeda (2018) 19
Cal.App.5th 346, 362.)
“‘Statements are nontestimonial’ . . . ‘when made in the
course of police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency. They are
testimonial when the circumstances objectively indicate that
there is no such ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.’” (People v.
Cage (2007) 40 Cal.4th 965, 982.)
Lynch was overruled on another ground in People v.
2
McKinnon (2011) 52 Cal.4th 610, 637-638.
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“On appeal, we independently review whether a statement
was testimonial so as to implicate the constitutional right of
confrontation. [Citation.] We evaluate the primary purpose for
which the statement was given and taken under an objective
standard, ‘considering all the circumstances that might
reasonably bear on the intent of the participants in the
conversation.’” (People v. Nelson (2010) 190 Cal.App.4th 1453,
1466.)
The evidence shows that Shirley G.’s statements to the
police were nontestimonial. “Officer [Arellano], responding to an
emergency call, encountered an agitated victim of a serious
assault, who described [appellant’s] attack on [her] . . . . The
statements provided the police with information necessary for
them to assess and deal with the situation, including taking steps
to evaluate potential threats to others by the perpetrator[], and to
apprehend the perpetrator[]. The statements were not made
primarily for the purpose of producing evidence for a later
trial . . . .” (People v. Romero (2008) 44 Cal.4th 386, 422.)
Appellant Was Not Denied His Right
To Effective Assistance of Counsel
As to the charge of forcible sodomy upon Nicole E.,
appellant contends he was denied effective assistance of counsel
because his counsel did not request a jury instruction “on the
defense of accident or misfortune.” (Bold and capitalization
omitted.) “The accident defense amounts to a claim that the
defendant acted without forming the mental state necessary to
make his or her actions a crime.” (People v. Lara (1996) 44
Cal.App.4th 102, 110.)
The accident defense is set forth in CALCRIM No. 3404:
“The defendant is not guilty of if (he/she) acted
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. . . without the intent required for that crime, but acted instead
accidentally. You may not find the defendant guilty of unless you are convinced beyond a reasonable doubt
that (he/she) acted with the required intent.”
Appellant claims he was entitled to an instruction on the
accident defense because the jury could have found that he had
intended to put his penis into Nicole E.’s vagina, but had
accidentally put it into her anus. Appellant asserts, “[F]or
purposes of the sodomy statute, the requisite general intent
would consist of the intent to commit the act of anal penetration.”
Therefore, he would not be guilty of sodomy if he had accidentally
inserted his penis into Nicole E.’s anus. “If a defendant intends
to commit the act of vaginal intercourse, but accidentally
commits an act of anal intercourse instead, the defense of
accident applies.”
Appellant’s argument is absurd. He is saying that if a man
intends to rape a woman but during the attempted rape he
accidentally puts his penis into the woman’s anus and does not
penetrate her vagina, he cannot be convicted of rape or sodomy.
We cannot fault defense counsel for not asking the court to
instruct on an absurd legal theory.
As appellant recognizes, sodomy is a general intent crime.
(People v. Davis (1995) 10 Cal.4th 463, 519.) “‘A crime is
characterized as a “general intent” crime when the required
mental state entails only an intent to do the act that causes the
harm; a crime is characterized as a “specific intent” crime when
the required mental state entails an intent to cause the resulting
harm.’” (People v. Atkins (2001) 25 Cal.4th 76, 86.) If appellant
had intended to put his penis into Nicole E.’s vagina but had
accidentally inserted it into her anus, he would have had the
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requisite general intent for sodomy, i.e., he would have
“intend[ed] to do the act that causes the harm.” (Ibid.)
Appellant’s intended act would have been the forcible penetration
of a body orifice with his penis. His poor aim does not shield him
from liability for sodomy. The crime does not require a specific
intent to penetrate the victim’s anus.
Court Did Not Err in Instructing That
Mistake of Fact Must Be Reasonable
The trial court instructed the jury that appellant is not
guilty of sodomy or rape if he actually and reasonably believed
that the acts were consensual. Appellant maintains the
instructions were erroneous insofar as they required a reasonable
belief on his part. But he recognizes that, pursuant to the
doctrine of stare decisis, we are bound by the California Supreme
Court’s decision that a mistaken belief in consent must be
reasonable. (People v. Maury (2003) 30 Cal.4th 342, 424; People
v. Williams (1992) 4 Cal.4th 354, 360-361.) Appellant notes that
“although this Court is bound, it is not gagged.” We see no
reason to quarrel with this well-established rule.
Appellant Forfeited Claim that the Section 290.3
Fine Must Be Stricken Because He Is Unable to Pay It
Pursuant to section 290.3, the trial court imposed a fine of
$2,300. Section 290.3, subdivision (a) provides that the fine shall
be imposed “unless the court determines that the defendant does
not have the ability to pay the fine.” Appellant claims that the
fine must be stricken because he “lacked the ability to pay” it.
The claim is forfeited because in the trial court appellant
did not object that he was unable to pay the fine. (People v.
Acosta (2018) 28 Cal.App.5th 701, 705-706.) Appellant concedes
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that he “did not raise this precise point below.” “[T]rial counsel
asked only that the fine . . . be reduced from $9,200 to $2,300.”
Moreover, appellant has failed to show that he is unable to
pay the $2,300 fine. “‘“Ability to pay does not necessarily require
existing employment or cash on hand.” [Citation.] “[I]n
determining whether a defendant has the ability to pay a . . . fine,
the court is not limited to considering a defendant’s present
ability but may consider a defendant’s ability to pay in the
future.” [Citation.] This include[s] the defendant’s ability to
obtain prison wages and to earn money after his release from
custody . . . .’” (People v. Aviles (2019) 39 Cal.App.5th 1055, 1076
(Aviles).) “‘Prison wages range from $12 to $56 per month,
depending on the prisoner's skill level.’” (People v. Lowery (2020)
43 Cal.App.5th 1046, 1060 (Lowery).)
Appellant’s prison sentence includes a consecutive
indeterminate term of 60 years to life. “We can infer [he] has the
ability to pay the fines and fees imposed upon him from probable
future . . . prison wages.” (Aviles, supra, 39 Cal.App.5th at p.
1076.) “Nothing in this record suggests [he] might be unable to
work, or that [he] might be ineligible for prison work
assignments.” (Lowery, supra, 43 Cal.App.5th at p. 1060.)
Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J. CODY, J.
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Anthony J. Sabo, Judge
Superior Court County of Ventura
______________________________
George L. Schraer, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri, Supervising Deputy
Attorney General, Marc A. Kohm, Deputy Attorney General, for
Plaintiff and Respondent.