People v. Montoya

68 Cal.App.5th 980

284 Cal.Rptr.3d 18

The PEOPLE, Plaintiff and Respondent,

v.John Joseph MONTOYA, Defendant and Appellant.

F079501

Court of Appeal, Fifth District, California.

Filed September 16, 2021

Certified for Partial Publication.^*

John Steinberg, Berkeley, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DETJEN, J.

INTRODUCTION

Defendant John Joseph Montoya, formerly a physical therapist, was charged with sexual penetration by foreign object ( Pen. Code,¹ § 289, subd. (a)(1)(A) [count 1]), sexual penetration by foreign object of a person incapable of giving legal consent because of a mental disorder or developmental or physical disability ( § 289, subd. (b) [count 2]), sexual battery (§ 243.4, subd. (a) [count 3]), lewd conduct by a caretaker upon a dependent person by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person ( § 288, subd. (b)(2) [count 4]), and lewd conduct by a caretaker upon a dependent person ( § 288, subd. (c)(2) [count 5]). Pursuant to a plea agreement, he pled nolo contendere to count 5 and the remaining charges were dismissed. Defendant received a one-year jail sentence, of which 364 days were suspended, one day of credit for time spent in custody awaiting sentencing, and three years' felony probation. He was also ordered to pay a $40 court operations assessment (§ 1465.8, subd. (a)(1)) and a $30 court facilities assessment ( Gov. Code, § 70373 ).

Defendant appealed. After the parties filed their initial briefs, we ordered them to file supplemental briefs addressing the applicability of Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Assembly Bill No. 1950) (Stats. 2020, ch. 328, § 2). Effective January 1, 2021, Assembly Bill No. 1950 amended section 1203.1 to limit the maximum probation term a trial court is authorized to impose for most felony offenses to two years.

In his opening brief, defendant makes two contentions. First, the trial court "abused its discretion by denying [his] motion to withdraw his plea." (Boldface & capitalization omitted.) Second, in view of People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 ( Dueñas ), the court must vacate or stay the $40 court operations assessment and the $30 court facilities assessment "because there was no finding of [his] present ability to pay." (Boldface & capitalization omitted.)

In his supplemental brief, defendant argues that Assembly Bill No. 1950 applies retroactively to his case and the matter should be remanded to the trial court "for the purpose of modifying [his] term of probation to two years." In its supplemental brief, the Attorney General agrees that defendant "is entitled to the retroactive benefit of A.B. No. 1950" and asks us to "remand the matter for the limited purpose of allowing the superior court to conform [his] sentence to the requirements described in A.B. No. 1950" and "to allow the prosecution an opportunity to accept the modification or to withdraw from the plea agreement." We accept this concession.

We also conclude: (1) the trial court did not abuse its discretion when it denied defendant's withdrawal motion; and (2) because the case will be remanded for modification of the length of defendant's probation term, defendant's Dueñas argument is moot.

STATEMENT OF FACTS ²

Defendant, who had been a licensed physical therapist since 1995, worked for two home health agencies: Agency A and Agency B. Beginning in September 2015, through Agency A, he provided in-home physical therapy twice a week to T.M., an adult female who suffers from multiple sclerosis and is paraplegic. He continued to treat her when she switched from Agency A to Agency B in October or November 2015. T.M. remained defendant's designated patient until January 8, 2016, when she enrolled in an outpatient physical therapy program. Nonetheless, defendant and T.M. "stayed in contact through text messages or telephone calls" and he "[went] to her house on occasions during his own time to give her additional physical therapy."

Sometime in March 2016, T.M. was at home with her mother F.M. when defendant dropped by unannounced. He was wearing "medical scrubs" and a work badge. Defendant entered T.M.'s bedroom—where T.M. was lying on her bed—and closed the door. At some point, he put his hand under her sweatpants and diaper and inserted his finger into her vagina for approximately three minutes. After defendant left the residence, F.M. went to T.M.'s bedroom and noticed that T.M.'s diaper was "a little bit crooked." She also observed that the curtains, which she normally "tie[d] ... with a string" during daylight hours, were "closed." When F.M. asked if "something was wrong," T.M. replied that defendant "touched her down there."

At the preliminary hearing, T.M. testified that defendant "violated" her. She was scared at the time of the incident because he was her physical therapist. T.M. later mentioned that she was afraid that he was "gonna beat [her] up." She stated that she "don't [sic ] want him to do that with any other lady." On cross-examination, the following colloquy transpired between T.M. and defendant's then-attorney Robert Bartlett:

"Q Okay. So do I understand you correctly today that when [defendant] did this, that you were okay with it, that you consented to it?

"A Yes.

"Q Okay. So you could have told him no; is that true?

"A Yes.

"Q Okay. But you didn't tell him no?

"A Yes.

"Q Okay. And you didn't tell him to stop?

"A No.

"Q Okay. Do you feel ... that you understood everything that was happening?

"A Yes." (Boldface omitted.)

On redirect examination, the prosecutor asked T.M. whether she understood the meaning of consent. The following colloquy transpired:

"A To consent is when you –

"Q It's okay. It's okay.

"A No. (Crying.) Tell her to tell me what consent is.

"Q So you want me to tell you what consent means?

"A (Nods head affirmatively.)

"Q Okay. But I need to find out if you know what consent means. Do you know? Can you tell us?

"A What you tell you're saying that the person – (crying) – person did to – (crying) – to hurt you.

"Q So you think that consent means to tell –

"A What –

"Q -- to tell the person that you – that did to you to hurt you?

"A And that I trusted the person and I agree with the person to do whatever they wanted to do. I have to be the one, first one to agreeing to.

"Q So consent means you have to be the first one to agree to what the other person wants you to do?

"A Yes.

"Q Okay. And so in the situation with [defendant], is this what you understand by consent?

"A No.

"Q No?

"A Because that – what I agreeing to I thought what is asking you, isn't that –

"Q Okay. Let's cut back. So you're asking me if it is okay?

"A Yes.

"Q Okay. All right. Let me ask you the question again. It's okay. No problem. Don't worry. Don't worry. [¶] You told us yesterday, and this is your own words, that [defendant] violated you.

"A (Nods head affirmatively.)

"Q Was that something that you agreed to?

"A (Nods head affirmatively.)

"Q So you're saying yes?

"A Yes.

"Q Or no?

"A Yes.

"Q So when [defendant] put his fingers inside of you –

"A Only one finger.

"Q Only one. There was – that was about that. Did you want that? Did you not want that?

"A No, I didn't want it.

"Q Okay. And did you say – tell him, ‘Yes, you can do it,’ or ‘No, you cannot do it’?

"A No, I didn't. I should have.

"Q Okay. So were you able or were you not able to say anything to [defendant] when he put his finger inside of you?

"A Yes.

"Q Were you able or not able?

"A I was able.

"Q So you were able to say something to him?

"A Yes.

"Q What was it?

"A No.

"Q You told him no?

"A I couldn't, but I didn't tell him no.

"Q Why didn't – why didn't you tell him no?

"A I was shocked.

"Q Shocked?

"A (Nods head affirmatively.)

"Q Okay.

"A He was my therapist.

"Q He was your therapist?

"A And that's all." (Boldface omitted.)

Officer Kelly of the Tulare Police Department testified that he interviewed T.M. and F.M. on March 28, 2016. Both stated that they believed defendant had been directed by Agency B to provide physical therapy to T.M. Kelly later interrogated defendant, who admitted that he "placed one finger inside [T.M.'s] vagina and moved it in and out" but maintained that he "asked her during the massage if she wanted him to massage her down there" and "she shook her head up and down, indicating yes to him." Kelly also spoke with Dr. Ramu Thiagarajan, T.M.'s neurologist for approximately 10 years. She informed him that T.M. "is diagnosed with multiple sclerosis," "essential hypertension," "[pseudobulbar] effect," and "chronic insomnia"; "suffers from memory loss"; has "impaired" cognitive abilities; and "is totally dependent on others." Because T.M.'s multiple sclerosis "has progressed to the most advanced stage," Thiagarajan opined that she "is no longer able to make any legal decisions for herself."

DISCUSSION

I. Defendant's motion to withdraw plea

a. Background

At the change-of-plea hearing on July 13, 2018, the following colloquy transpired:

"MR. BARTLETT: Judge, at this time, Mr. Montoya will be entering a no contest plea, and I believe it's Count 5, violation of Penal Code Section 288(c)(2) as a felony.

"THE COURT: All right. And then my understanding is that that sentencing range is a one, two, three; that the court's intent, and this was agreed to by the parties, was to sentence Mr. Montoya to one year and suspend 364 days.

"MR. BARTLETT: That's correct, Judge.

"THE COURT: All right.

"[PROSECUTOR]: That's correct, and then the People would dismiss the rest of the counts at sentencing, but he has to be – he needs to be advised – he needs to be advised now before he pleads that this would carry a lifetime registration.

"MR. BARTLETT: Of course.

"THE COURT: Correct.

"[PROSECUTOR]: And I do not know

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