People v. Linares

THE PEOPLE, Plaintiff and Respondent, v. JOAQUIN LINARES, Defendant and Appellant.

B281309

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

November 29, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. KA111360)

Appeal from a judgment of the Superior Court of Los Angeles County, David C. Brougham, Judge. Reversed in part, affirmed in part, and remanded with directions.

Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul R. Roadarmel, Jr. and William N. Frank, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

Joaquin Linares appeals from the judgment after a jury convicted him on one felony count of possession of child pornography, six misdemeanor counts of annoying or molesting a child, and six misdemeanor counts of invasion of privacy. The trial court sentenced Linares to three years in state prison plus, consecutively, 728 days in jail. Linares challenges his convictions on numerous grounds. We reverse his conviction for possession of child pornography, the six convictions for annoying or molesting a child, and five of the six convictions for invasion of privacy.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Police Arrest Linares at His Home

In December 2015 officers responded to a family disturbance at the home Linares shared with, among others, his fiancée, Catherine W., and her 13-year-old autistic daughter, Alyssa. The officers arrested Linares on an outstanding misdemeanor warrant. They denied Linares's repeated requests to retrieve his cell phone.

B. Videos and Photographs Are Discovered on Linares's Phone

Later on the day of Linares's arrest, Catherine discovered on his cell phone four videos, taken in the family's living room, that included prolonged close-ups of Alyssa's clothed buttocks and crotch. In the first video, Alyssa is wearing jean shorts and a shirt, and she is on the living room sofa watching television. Other voices can be heard, and Alyssa is laughing. Linaresfilmed the video from behind and above Alyssa, and the camera focuses on her crotch and upper legs. The second video shows Alyssa in the living room with Catherine, who is playing with a cat. Alyssa's younger brother Isaiah (Catherine's son with Linares) can be heard in the background. The camera focuses on Alyssa's buttocks until she sits down on the floor. In the third video Alyssa is wearing a tank top and stretch pants. She is sitting on the living room couch looking at her cell phone. Music is playing, and Alyssa asks Linares to lower the music. Linares says, "No, that's fine." The camera focuses on Alyssa's crotch. In the fourth video, Alyssa is sitting and then lying down on the living room floor watching a video with Isaiah. Linares zooms in on Alyssa's buttocks and crotch.

The following morning, Linares called Catherine from jail, and she confronted him about the four videos. Linares did not deny taking the videos, react to Catherine's accusations, or respond to her statement that he could never be near Alyssa again. The People introduced a recording and a transcript of the conversation at trial.

Later that morning, Catherine and her niece, Elizabeth Hammons, and other family members went to the police station, where they insisted Officer Daniel Armas view the videos. Hammons also discovered and showed to Officer Armas an additional video taken in the bathroom, which the parties refer to as the "shower video," where Alyssa undresses in preparation for taking a shower. Linares had placed his cell phone camera in the master bathroom, angled it to capture the sink area and shower, and hid it from view. Alyssa entered the bathroom, brushed her hair, and sang and danced as she disrobed. Her breasts, pubic area, and buttocks were visible. According to Hammons, Alyssa'svagina was also visible: "You [could] see the vulva and maybe the tip of the clitoris and maybe the tip of the lips, but not the vaginal opening." The shower video was lost prior to trial, but six witnesses (four family members and two police officers) testified about its contents.

A subsequent cell phone search, conducted pursuant to a warrant, uncovered one more video of Alyssa in the living room. Alyssa is wearing jean shorts. Linares focuses and then zooms in on Alyssa's buttocks, including when she bends down to pick something up. At trial, Catherine identified Linares's briefly visible jean-clad leg and sneaker. The post-warrant search of Linares's phone also revealed multiple photographs of Alyssa that focused on her clothed lower torso, buttocks, and crotch. Several captured her lying on the couch in a bikini.¹

C. The People Charge Linares with Multiple Crimes

The People charged Linares with 12 misdemeanors and one felony. Five counts of misdemeanor annoying or molesting a child in violation of Penal Code section 647.6, subdivision (a)(1),² (counts 2, 4, 6, 8, and 12) and five counts of misdemeanor invasion of privacy in violation of section 647, subdivision (j)(3)(A), (counts 3, 5, 7, 9, and 13) were based on the videos of Alyssa, clothed, in the living room. One count of misdemeanorannoying or molesting a child (count 10), one count of misdemeanor invasion of privacy (count 11), and one count of felony possession of child pornography in violation of section 311.11, subdivision (a), (count 1) were based on the shower video.

At trial, Linares admitted taking the videos in the living room but denied intentionally focusing on Alyssa's crotch or buttocks. He explained he was blind in one eye, sleepy or not wearing his glasses when he took the videos, or the camera zoomed in "by itself." Regarding the shower video, Linares said he placed the camera in the bathroom because he expected Catherine to take a shower and he was looking for evidence on her body ("hickeys, bite marks") to support his suspicions of her infidelity. Linares said that, upon discovering Alyssa and not Catherine was in the shower, he retrieved the cell phone, shut off the camera, and deleted the video.

The trial court denied Linares's motion to suppress the evidence obtained from the initial viewing of the videos on his cell phone. The court also denied Linares's motion to dismiss count 1 under California v. Trombetta (1984) 467 U.S. 479 [104 S.Ct. 2528, 81 L.Ed2d 413] (Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51 [109 S.Ct. 333, 102 L.Ed.2d 281] (Youngblood) for failure to preserve the shower video.

D. The Jury Convicts Linares

The jury convicted Linares on all counts. The trial court sentenced Linares to a prison term of three years on count 1, consecutive terms of 364 days on each of counts 2 and 4, and concurrent terms of 364 days on each of counts 6, 8, and 12. The court also imposed and stayed execution under section 654 of a364-day term on count 10 and terms of 180 days on counts 3, 5, 7, 9, 11, and 13. The court also ordered Linares to register as a sex offender and entered a protective order protecting Alyssa. Linares timely appealed.

DISCUSSION

A. The Trial Court Did Not Err in Denying Linares's Motion To Suppress Evidence Obtained from the Warrantless Viewing of Videos on Linares's Phone

The trial court denied Linares's motion to suppress evidence obtained from Officer Armas's viewing of Linares's cell phone, ruling there was no government action. Linares argues the trial court erred because Officer Armas directed Catherine and Hammons to conduct an illegal search while in a secure area of the police station and stood idly by as they violated Linares's rights. Because the facts on this issue are undisputed, our review is de novo. (See People v. Simon (2016) 1 Cal.5th 98, 120 ["[i]n reviewing a trial court's ruling on a motion to suppress, we defer to the trial court's factual findings, express or implied, where supported by substantial evidence," and "in determining whether, on the facts so found, the search was reasonable for purposes of the Fourth Amendment to the United States Constitution, we exercise our independent judgment"].)

1. Relevant Proceedings

Officer Armas testified at the pretrial hearing on Linares's motion to suppress. He stated that Catherine and other family members, including Alyssa, arrived at the police station to report possible child abuse. In the lobby of the station Catherine toldOfficer Armas she had discovered four videos on Linares's cell phone "of her daughter that she felt [were] intrusive on her daughter's breasts and vagina." Catherine was upset, angry, and crying, and she repeatedly demanded that Officer Armas view the videos. She started to play a video, but the officer stopped her without looking at it. Because of the nature of the alleged crime, however, he felt he had to view the videos. Officer Armas brought Catherine into a secure area of the station, and she played all four videos while he watched. Officer Armas never touched or searched the cell phone.

Officer Armas briefly reviewed Linares's criminal record to determine whether he was in custody or whether he had any previous "sexually-related" allegations or arrests. When he returned to the lobby, Officer Armas met with Hammons, who said there was another video (the shower video) she wanted to show him. Hammons and Catherine were both very excited and upset. Officer Armas returned to the secure area with the two women, and Hammons played the additional video while he watched. Again, Officer Armas did not hold or search the phone, nor did he access the phone to watch the video. At some point Officer...