Opinion
B301469
03-02-2021
THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS PAUL CASTANEDA, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA454446) APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen Kennedy, Judge. Affirmed. Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
A jury convicted Nicholas Paul Castaneda of assault with the intent to commit a felony of rape, sodomy, or sexual penetration of an unconscious person pursuant to Penal Code section 220, subdivision (a)(1) (count 1), and sexual penetration of an unconscious person pursuant to section 289, subdivision (d) (count 4), committed against Jasmine S. As to a second victim, Kayla W., he was convicted of unlawful sexual intercourse with a minor pursuant to section 261.5, subdivision (c) (count 2), and committing a lewd act upon a minor pursuant to section 288, subdivision (c)(1) (count 3). The trial court sentenced Castaneda to six years in state prison.
All unspecified statutory references are to the Penal Code.
On appeal, Castaneda argues the trial court abused its discretion in denying his motion to sever the counts relating to Jasmine from those relating to Kayla. We conclude the trial court did not abuse its discretion, and affirm the judgment.
FACTUAL BACKGROUND
A. Charges Related to Kayla W.
In December 2014, Kayla turned 15 years old. She lived with her mother, but stayed with her grandmother from time to time. When her grandmother was at work, Kayla went to stay at the apartment of the grandmother's friend, Michelle. Kayla stayed at Michelle's apartment between one day to a full week at a time.
Michelle's last name is not stated in the record.
Michelle's son, Castaneda, age 27, and his sister Azia, lived with Michelle. Azia was one month younger than Kayla. Michelle and Azia each had their own bedrooms. When Kayla visited overnight, she slept with Azia in her bedroom or in the living room.
Soon after Kayla turned 15 years old, Castaneda told her that he thought she was attractive, but that they could not do "anything" because of her age. He told Kayla that she was his future girlfriend. On a later occasion, he suggested that he "should know what my future girlfriend is like," or "what she has." Kayla and Castaneda's conversations became more sexual in tone, and Castaneda told Kayla that they had to keep their conversations private.
On December 24, 2014, Kayla and Castaneda stayed awake in Michelle's living room, talking until the early hours of the next morning. Michelle and Azia were in their bedrooms, with their doors closed. Castaneda began to touch Kayla and orally copulated her. Then he asked, "Are you sure?" She responded, "yes," and they engaged in intercourse.
Kayla described four other sexual encounters with Castaneda between December 2014 and July 2015, each of which occurred in Michelle's apartment. The last sexual encounter between Kayla and Castaneda occurred in July or August 2015. Kayla was asleep in Azia's bedroom with Azia. She could "feel someone attempting to wake [her] up and someone attempting to do something to [her] while [she] was asleep." The sensation of being touched, including on her face, breasts, and hands, woke her up. She saw Castaneda standing with his penis over her, and he was trying to make her grab his penis. She felt "his penis on [her] head, or attempting to go into [her] mouth." Kayla was upset that Castaneda would behave this way in front of Azia. She told him, "Please, just leave me alone. . . . I'm tired." The encounter did not go further. The next morning, Kayla asked Castaneda, "Were you attempting to do something to me last night?" He responded, "Maybe."
Kayla told Azia that "something was going on" between her and Castaneda. The next day, Kayla, Michelle, and Azia went to Kayla's grandmother's house. Michelle and Azia spoke to Kayla's grandmother about what Kayla had said. Kayla's grandmother accused Kayla of lying, and called Kayla's mother to tell her that Kayla was acting out. Kayla was upset that she was not being taken seriously.
The next day Kayla's mother asked her if something had happened. Kayla was reluctant to talk to her mother because of her grandmother's reaction to her disclosure the previous day. Instead, she told her mother that she thought Castaneda did something to her while she was asleep. Her mother responded, "[U]nless you know what happened, we're just not going to say anything."
In September 2015, Kayla told a school counselor about her relationship with Castaneda. An investigation ensued.
On cross-examination, Kayla admitted the following: (1) at the time she spoke with the school counselor, she was seeking to be transferred to a home schooling program because she was having problems with her classmates; (2) on the night of her last sexual encounter with Castaneda, she took medication that made her extremely drowsy, but it did not make her hallucinate; (3) she initially told an officer that Castaneda had forced her to have sex with him, which was untrue; and (4) she had exaggerated some of the details of her encounters with Castaneda when she first spoke to officers.
Detective Candace Duke testified that during an interview Kayla's mother expressed that Kayla had been unsure whether Castaneda had done anything to her in July or August 2015 because of the effects of prescription medication Kayla had been taking.
Castaneda testified that Kayla stayed overnight at his mother's apartment five or six times, but never stayed overnight at Christmas. In late July and early August 2015, Castaneda was sometimes home during the day and would see Kayla at the apartment. He was never alone with Kayla, and he never had sex with her.
B. Charges Related to Jasmine S.
Jasmine and Castaneda met at work in 2014. Jasmine was 24 years old. They became best friends, spending time together outside of work almost every day. They drank, smoked, and talked about their dating lives. They did not have a sexual relationship.
Jasmine's son was born in October 2015. Thereafter, she and her son slept at Castaneda's apartment approximately two or three times per week. If Castaneda and Jasmine slept on the couch together, they slept opposite one another.
On the evening of November 6, 2016, Jasmine went to Castaneda's apartment. Azia watched Jasmine's son while Jasmine and Castaneda spent time with neighbors. They had drinks and smoked marijuana. Later, Jasmine went to sleep on the couch with her son between her and the back of the couch. She woke up with her tights and underwear pulled down and the sensation of Castaneda attempting to penetrate her anus with his penis. Her son was on a blanket on the floor. She sat up, asked Castaneda what he was doing, and went to the bathroom. She touched herself before she urinated and felt she was moist, which was not normal.
Jasmine returned from the bathroom, gathered her belongings and left with her son. Around 8:00 a.m., Jasmine called her boyfriend Miles. She told Miles that Castaneda had raped her and she needed to "get checked." Miles called the police, who met Jasmine at the hospital, where a sexual assault examination was performed.
Before Jasmine went to the hospital, Castaneda called to tell her that Miles had been to his apartment and was upset, but Castaneda did not know why. Jasmine asked, "You don't know what you did to me?" He said, "No." She responded, "Well, I woke up with you trying to stick your dick in my butt." He said, "Well, you never lied to me, Little Homie. So if it did happen, I apologize."
Rafael Arevalo, Michelle's co-worker, testified that he also slept in Michelle's living room on the night of November 6, 2016. Arevalo woke up to use the restroom; when he returned from the restroom, Jasmine's baby was on the floor. According to Arevalo, Jasmine left the apartment around 3:00 a.m.
A forensics expert identified sperm in the vaginal, external genital, and anal swabs taken from Jasmine at the hospital. Non-sperm, male DNA was detected in the anal swab sample and was consistent with Castaneda's DNA.
C. Law Enforcement Interview of Castaneda
Detective Duke interviewed Castaneda on November 9, 2016. The interview was played for the jury. Castaneda denied having sex with Jasmine at any time. He said Jasmine left his apartment the morning of November 7, 2016, at a normal time, between 3 and 4 a.m., so that she could drop off her baby at child care and go to work.
Castaneda told Detective Duke that when he and Jasmine spoke on the phone, she told him, "We did something last night." He asked, "What do you mean we did something?" She responded, "I don't know, but I think we had sex." Castaneda told her, "What do you mean you think we had sex? Like I never came at you like that." Jasmine told him she could not talk right then, and they got off the phone.
At trial, Castaneda denied having sex with Jasmine and recounted details that were consistent with the facts he discussed with Detective Duke.
PROCEDURAL BACKGROUND
The prosecution filed an information charging Castaneda with one count of sodomy of an unconscious person with respect to Jasmine (count 1), and unlawful sexual intercourse with a minor and committing a lewd act upon a minor with respect to Kayla (counts 2 and 3).
In subsequent proceedings the information was amended to charge Castaneda with assault to commit a felony pursuant to section 220, subdivision (a) in count 1, and to add count 4, sexual penetration of an unconscious person (§ 289, subd. (d)).
Castaneda moved to sever count 1 from counts 2 and 3 on the basis that joinder of the counts would be improper under Penal Code section 954.
The trial court denied the motion. The court determined that the charges met the statutory requirements for joinder because they were the same class of crimes. Further, the counts were "united by [Castaneda]'s sexual exploitation of vulnerable victims, either because they are unconscious or under the age of lawful consent."
The trial court declined to exercise its discretion to sever the counts. The court found (1) the cross-admissibility of the evidence relating to the two victims under Evidence Code section 1108 provided a strong argument in favor of joinder and against severance; (2) "one set of counts [was] not more inflammatory than another"; and (3) the prosecution had not impermissibly joined a weak case with a stronger case.
DISCUSSION
A. Counts 1 through 4 Meet the Statutory Requirements for Joinder
Section 954 permits the joinder of "two or more different offenses connected together in their commission . . . or two or more different offenses of the same class of crimes or offenses." (§ 954.) "Whether offenses properly are joined pursuant to section 954 is a question of law and is subject to independent review on appeal . . . ." (People v. Cunningham (2001) 25 Cal.4th 926, 984.)
" 'Offenses "committed at different times and places against different victims are nevertheless 'connected together in their commission' when they are . . . linked by a ' "common element of substantial importance." ' " ' [Citation.]" (People v. Anderson (2018) 5 Cal.5th 372, 388.) Courts have held that sexual offenses are properly joined with crimes such as robbery and murder "because they are assaultive crimes against the person and therefore belong to the same class of crimes." (People v. Merriman (2014) 60 Cal.4th 1, 36; see People v. Alvarez (1996) 14 Cal.4th 155, 188 ["Rape is an assaultive crime against the person, as are robbery and murder."]; People v. Leney (1989) 213 Cal.App.3d 265, 269 ["Crimes are of the same class when they all involve assaultive crimes against the person."]; People v. Lindsay (1964) 227 Cal.App.2d 482, 492 [observing "the intent to satisfy sexual desires runs through" rape, sex perversion, and sodomy].) Thus, a fortiori, the sexual offenses of committing lewd acts upon a minor (count 2), sexual intercourse with a minor (count 3), and sexual intercourse with an unconscious person (count 4), are in the same class as assault with the intent to commit a sexual offense (count 1). (See, e.g., People v. Maury (2003) 30 Cal.4th 342, 395 [charges of murder of three women and rape of a fourth woman were properly joined]; People v. Alvarez, supra, 14 Cal.4th at pp. 188-189 [charges of rape of one victim, robbery and murder of another victim, and robbery of a third victim were properly joined].)
Additionally, "[t]he phrase regarding offenses connected together in their commission' under section 954 includes offenses that share a common element, such as the use of a defendant's home to commit the crime . . . ." (People v. Leney, supra, 213 Cal.App.3d at p. 269.) Here, Castaneda committed the offenses in his mother's home against vulnerable victims who were unable to consent: Kayla, because she was a minor, and Jasmine, because she was unconscious. Further, the final illegal act Castaneda committed against Kayla occurred while she was asleep and awoke to find him attempting to insert his penis into her mouth, similar to the commission of the offenses against Jasmine while she was asleep. Thus, the statutory requirements for joinder of the charges relating to Kayla and Jasmine are satisfied.
B. The Trial Court Did Not Abuse its Discretion in Denying the Motion to Sever the Counts
Even if the offenses meet the statutory requirements of joinder, "a trial court has discretion to order that properly joined charges be tried separately." (People v. Merriman, supra, 60 Cal.4th at p. 37.) "To succeed on a claim that the trial court abused its discretion in denying severance . . . , the defendant must make a ' "clear showing of prejudice" ' and establish that the ruling fell ' " ' " 'outside the bounds of reason.' " ' " ' [Citations.]" (Ibid.)
In a non-capital case, " ' "[r]efusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; [and] (3) a 'weak' case has been joined with a 'strong' case, or with another 'weak' case, so that the 'spillover' effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges . . . . [Citations.]" ' [Citation.]." (People v. Ramirez (2006) 39 Cal.4th 398, 439; accord, People v. Simon (2016) 1 Cal.5th 98, 123.) Courts "balance the potential for prejudice to the defendant from a joint trial against the countervailing benefits to the state," including judicial economy and efficiency. (People v. Soper (2009) 45 Cal.4th 759, 772, 775, fn. omitted.)
1. The Evidence Would Have Been Cross-admissible in Separate Trials
"If the evidence underlying the joined charges would have been cross-admissible at hypothetical separate trials, 'that factor alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial court's refusal to sever properly joined charges.' [Citations.]" (People v. Merriman, supra, 60 Cal.4th at p. 38.) Cross-admissibility may be satisfied in a prosecution for sexual offenses by application of Evidence Code section 1108. (Ibid.)
Under Evidence Code section 1108, evidence of a defendant's commission of other sexual offenses is admissible in a prosecution for a sexual offense unless the evidence is inadmissible pursuant to Evidence Code section 352. (Evid. Code, § 1108, subd. (a).) Evidence Code section 352 provides that a trial court may exclude evidence when its probative value is substantially outweighed by a danger of undue prejudice. In making this determination, trial courts weigh factors "such as the 'nature, relevance, and possible remoteness [of the evidence], the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses . . . .' [Citation.]" (People v. Merriman, supra, 60 Cal.4th at p. 41.) " ' "In applying [Evidence Code] section 352, 'prejudicial' is not synonymous with 'damaging.' " [Citations.]' [Citation.]" (People v. Hollie (2010) 180 Cal.App.4th 1262, 1276.) " ' "Undue prejudice" refers not to evidence that proves guilt, but to evidence that prompts an emotional reaction against the defendant and tends to cause the trier of fact to decide the case on an improper basis . . . .' [Citations.]" (Id. at. pp. 1276-1277.)
Castaneda argues the trial court erred in joining evidence of a non-consensual sexual offense involving an unconscious adult with that of a "consenting" minor. Relying on People v. Earle (2009) 172 Cal.App.4th 372 (Earle), Castaneda contends the admission of the evidence relating to one crime does not "show some meaningful propensity to commit the other." (See id. at p. 399, italics omitted ["a propensity to commit one kind of sex act cannot be supposed, without further evidentiary foundation, to demonstrate a propensity to commit a different act"].)
The reference in the appellant's opening brief to a "consensual sex offense[ ] involving a minor" is a non sequitur, as a "minor is incapable of giving consent." (People v. Brown (1973) 35 Cal.App.3d 317, 326.)
In Earle, the defendant was charged with indecent exposure, a misdemeanor, and assault with intent to commit rape, a felony. (Earle, supra, 172 Cal.App.4th at p. 378.) "The charges arose from entirely distinct and dissimilar incidents with no apparent historical connection to one another." (Ibid.) The Earle court found that under Evidence Code section 1108, evidence of the first crime must rationally support an inference that the defendant was predisposed to commit the other. (Id. at pp. 397-398.) The court concluded that without an expert opinion, it was speculative to assume that the commission of indecent exposure rationally supported an inference that the defendant was predisposed to commit rape. (Id. at p. 398.)
This matter is distinguishable from Earle. First, unlawful sex with a minor and rape of an unconscious adult both involve assaultive behavior and are not so dissimilar that the propensity question becomes one sufficiently beyond the common experience of a juror. (See Evid. Code, § 801, subd. (a) [setting forth the requirement for expert testimony].) Indeed, at least one appellate court has held that evidence of two uncharged sexual assaults committed against adult women was admissible in a prosecution for molestation of a minor where the defendant took advantage of all three victims while they were vulnerable. (See People v. Escudero (2010) 183 Cal.App.4th 302, 311.)
Second, the similarities between the crimes here—a factor that was not present in Earle—bolsters the probative value of the evidence relating to each victim. In each case, Castaneda took advantage of vulnerable female victims invited as guests to sleep in his home, who were unable to consent at the time he committed acts against them. In committing the act against Jasmine, and the final act against Kayla, he woke up each victim in the middle of the night by touching parts of her body while she was asleep.
Additionally, the offenses occurred less than a year-and-a-half apart, and therefore were not remote in time. Castaneda does not demonstrate the evidence was inherently confusing, misleading, or would otherwise distract the jury from deciding his guilt for each case. Accordingly, we conclude the evidence was cross-admissible pursuant to Evidence Code section 1108, a factor that weighs heavily against severance. (People v. Merriman, supra, 60 Cal.4th at pp. 38, 42-43.)
The Earle court found that as to the assault charge, there existed "fertile ground for a reasonable doubt in the jurors' minds that the victim [of the assault charge] had correctly identified [the] defendant as the assailant." (Earle, supra, 172 Cal.App.4th at p. 379.) Thus, the appellate court found prejudicial the strongly incriminating evidence of the misdemeanor charge before the same jury. (Ibid.) Castaneda has not demonstrated any doubt as to his identity as the assailant against either Kayla or Jasmine.
2. Neither Set of Charges Is Unusually Likely to Inflame the Jury
Castaneda argues the charges relating to Kayla were unusually likely to inflame the jury. In addition to her status as a minor, Castaneda notes the prosecution presented Kayla as a particularly vulnerable victim. Kayla testified holding a teddy bear and admitted that as a teenager, she cut and burned herself. The prosecution argued she was an easy target for Castaneda. Although Kayla was undoubtedly vulnerable, so was Jasmine. She had built a friendship with Castaneda for over a year. On the night of November 6, 2016, she drank and smoked marijuana with him. Taking advantage of Jasmine's trust, her unconscious state, and her possible intoxication, he furtively engaged in sex with her. It is not likely that a jury would find the charges relating to Kayla to be more disturbing or unsavory than those relating to Jasmine such that it would be unusually inflamed.
3. The Relative Strength of the Cases Did Not Require the Trial Court to Sever Them
"The core prejudice concern arising in connection with [a weak case joined to a strong case] is that jurors may aggregate evidence and convict on weak charges that might not merit conviction in separate trials." (People v. Simon, supra, 1 Cal.5th at p. 127.) Castaneda argues that joining Kayla's weaker case with Jasmine's stronger case resulted in an impermissible spillover effect. He relies heavily on the district attorney's initial decision not to file charges in Kayla's case. It was only after Jasmine's case arose that the district attorney filed the charges relating to Kayla.
The fact that charges were not initially filed does not demonstrate an impermissible spillover effect from the joining of the two matters. "[T]he benefits of joinder are not outweighed—and severance is not required—merely because properly joined charges might make it more difficult for a defendant to avoid conviction compared with his or her chances were the charges to be separately tried." (People v. Soper, supra, 45 Cal.4th at p. 781.)
Here, notwithstanding the lack of DNA evidence and the defense efforts to paint Kayla as a troubled and dishonest teen, her testimony constituted substantial evidence that she and Castaneda had sex when she was a minor. She testified in some detail concerning five sexual encounters with Castaneda, including the first and the last. Castaneda's main challenge to Kayla's testimony consisted of his own testimony denying he ever had sex with her. Castaneda does not demonstrate the evidence relating to Kayla was "weak" such that the outcome likely was altered by the facts relating to the acts committed against Jasmine.
For the foregoing reasons, we conclude Castaneda has not made a "clear showing of prejudice" or established the trial court's denial of his motion to sever fell "outside the bounds of reason." (People v. Merriman, supra, 60 Cal.4th at p. 37, internal quotation marks omitted.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
CHANEY, J.
BENDIX, ACTING P. J.