People v. Algire

165 Cal.Rptr.3d 650

The PEOPLE, Plaintiff and Respondent,

v.Jose Armando ALGIRE, Defendant and Appellant.

B244557

Court of Appeal, Second District, Division 4, California.

Filed December 17, 2013

Certified for Partial Publication.

Review Denied March 19, 2014

See 4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Illegally Obtained Evidence, § 425.

Recognized as Unconstitutional

Cal. Penal Code § 631.

Recognized as Unconstitutional

Cal. Penal Code § 1538.5(a)(1)(B)(v).

Held Unconstitutional

Cal. Penal Code § 632(d)

APPEAL from a judgment of the Superior Court of Los Angeles County, Tomson T. Ong, Judge. Affirmed. (Los Angeles County Super. Ct. No. NA090057)

Bernstein Law Office, Inc., Bob Bernstein and Nathaniel Clark for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and Robert C. Schneider, Deputy Attorneys

General, for Plaintiff and Respondent.

MANELLA, J.

Appellant Jose Armando Algire challenges his conviction for forcible sexual penetration. He maintains that the trial court erred in admitting a recorded conversation, denying a continuance, and limiting his expert's testimony. In the published portion of this opinion, we reject appellant's contention that the trial court contravened the exclusionary rule in Penal Code section 632, subdivision (d), in admitting an audio recording of a conversation between appellant and his victim. We conclude that the “Right to Truth–in–Evidence” provision of the California Constitution (Cal. Const., art. I, § 28, subd. (f), par. (2)), as enacted by the passage of Proposition 8 in 1982, abrogated that exclusionary rule. In the unpublished portions of the opinion, we reject appellant's remaining contentions. We therefore affirm.

PROCEDURAL BACKGROUND

On March 14, 2012, an information was filed, charging appellant with sexual penetration with a foreign object (Pen.Code § 289, subd. (a)(1)).¹ Appellant pleaded not guilty. A jury found appellant guilty as charged. On October 3, 2012, the trial court sentenced appellant to a term of eight years in prison.

FACTS

A. Prosecution Evidence

Stevie J., appellant's victim, is also his step-daughter.² Stevie was born in China in 1988. In April 2006, following her mother's marriage to appellant, Stevie came to the United States to live with her mother, appellant, and his two children. She was then 17.

Stevie testified as follows: When she took up residence with appellant, he repeatedly hugged her. Stevie initially believed that his conduct was a “Western cultural thing,” as it did not occur in China. Appellant soon began trying to kiss her during the hugs, and also engaged in other inappropriate behavior. On one occasion, he told her that when he was young, a neighbor compensated him for mowing her lawn by having sex with him. On another occasion, appellant approached her from behind while she was reading a book, and placed his hands on her breasts. When Stevie pushed him away, he said that if she discussed the incident with her mother, he would “kick [Stevie] back to China.” Stevie said nothing to her mother regarding appellant's misconduct because she did not want to endanger her mother's marriage.

On October 25, 2006, while Stevie's mother was absent, appellant asked Stevie to enter his bedroom. When she did so, he pushed her onto the bed and kissed her. He then moved his hands to her underwear and inserted his fingers into her vagina. Stevie struggled away from him, went to her room, and locked the door. Appellant said through the door, “If you tell anyone[ ] else [,] including your mom, I'm going to kick you guys back to China and your green card is over, the marriage is over.” Stevie contacted a friend, who accompanied Stevie to a park. There, Stevie told the friend only that appellant had threatened her. Stevie did not expressly report appellant's sexual misconductto anyone, as she was fearful that doing so would end her mother's marriage.

In December 2006, after her natural father died in China, Stevie visited China for approximately six months. During Stevie's visit, appellant informed her by e-mail that he wanted to teach her about sex. She rejected his proposal.

In May 2007, following Stevie's return from China, appellant again asked her to enter his bedroom. She refused to do so, but stood in the bedroom doorway. Appellant directed her attention to a computer screen, which displayed a pornographic image involving a man and woman. When he asked whether Stevie wanted him to do what the image showed, she refused and tried to leave, but he grabbed her arm. She kicked him and ran to her room. Stevie related the incident to no one.

A few days later, while appellant was giving Stevie a driving lesson, he asked whether she wanted him to teach her about sex. He explained that it was permissible for him to do so because she was not his “blood daughter.” When she replied that she did not want to learn about sex from him, he said, “[S]chool's over, [your] green card is over, and you [will] go back to China.” Because Stevie's conditional green card expired in 2008, she understood appellant to mean that he intended to send her back to China.

Immediately after the incident, Stevie contacted Tae Boettcher, whom she knew through her karate class. When Stevie told her that appellant wished to have sex with Stevie and threatened her immigration status, Boettcher arranged for Stevie to see a counselor at the high school she had attended. Before talking to the counselor, Stevie told her mother that appellant had acted improperly toward her. The counselor directed Stevie to the high school police, who told her they could not offer assistance because she was then 18 years old. In addition, the counselor located an alternative residence for Stevie and urged her to move out of appellant's house. Stevie decided to do so. After moving out of appellant's residence, she found employment in a food court in a shopping mall, and met Torrance Police Department Officer Steven Janguard, who also worked in the mall.

In December 2007, appellant told Stevie and her mother that they needed to contact a lawyer in order to renew Stevie's green card. Later, in January 2008, appellant and Stevie went to their lawyer's office in order to sign some paperwork. Although Stevie's mother was supposed to accompany them, she was not present. After meeting with the lawyer, appellant and Stevie had a conversation. While appellant talked to her, he used the word “orgasm,” which she did not understand. According to Stevie, she had a practice of recording conversations “[t]o help [her] ... learn English.” She thus began recording their conversation.³

During the conversation, appellant stated that the last time he touched Stevie, she was not “wet at all,” and that he believed that she needed instruction in sex from him because her body did not “understand what [was] happening.” She rejected his proposal. Stevie's recording of the conversation was played for the jury.

After the incident, Stevie told Janguard that she had “issues” with appellant. Janguard suggested that Stevie arrange a meeting with appellant at the mall where she worked, so that Janguard could try to overhear their conversation. Although the meeting occurred, appellant said little during it. Shortly afterward, Stevie received a letter from appellant. The letter stated that if she stopped making her accusations against him, he would assist her in obtaining her a green card. She did not respond to the letter. Later, her lawyer told her that appellant had withdrawn his sponsorship of her green card application. She asked for advice from Janguard, who later acted as her sponsor.

Stevie had no further dealings with appellant, and did not participate in his and her mother's divorce. In 2009, Stevie had her breasts removed because they reminded her of what appellant had done to her. In April 2010, after the renewal of Stevie's green card, she reported appellant's sexual misconduct to the police.

Boettcher testified that she became friends with Stevie through Stevie's karate lessons. According to Boettcher, when Stevie told her that appellant had “touched” her, Boettcher arranged for Stevie to meet with a counselor and police officers at Stevie's high school. In addition, Boettcher helped Stevie find a new place to live.

Officer Janguard testified that he met Stevie in a mall where they both worked. In January 2008, while in the mall's food court, Stevie told him that she was having problems with appellant, but did not specify the nature of the problems or identify them as a crime. In addition, she played an audio recording of a conversation between Stevie and appellant. According to Janguard, the background noise in the food court made the recording difficult to understand, but it appeared to Janguard that appellant had made inappropriate remarks to Stevie.

After consulting with a police sergeant, Janguard asked Stevie to arrange a meeting with appellant in the mall. When the meeting took place, Janguard approached appellant and asked him to “listen to Stevie” because “there [was] some inappropriate talking going on.” Appellant said nothing to Janguard. Janguard then walked away from Stevie and appellant. Although he saw them talking, he did not overhear their conversation. A few weeks later, Stevie told Janguard that appellant had withdrawn his support for her green card. After learning that Stevie needed to renew her green card, Janguard and his wife agreed to act as her sponsors.⁴

B. Defense Evidence

Appellant, who testified on his own behalf, denied any misconduct regarding Stevie. He stated that after he married Stevie's mother and sponsored her for citizenship, she asked him to arrange for Stevie to live with them. When Stevie arrived, she disregarded his authority, used profane language, and performed few household chores. She also dressed like a boy, and viewed...