People v. BojorquezPeople v. Bojorquez
Opinion
In this case, we affirm defendant Frank Martin Bojorquez’s convictions of consensual sexual activity with a confined adult (
I
Factual and Procedural Background
At the time of the incidents involved in this case, the county and sheriff maintained a work release program, known as the Community Work Program (CWP). According to a deputy sheriff assigned to the program, the county established the CWP to ease jail overcrowding. Nonviolent, low-risk inmates sentenced to county jail with terms of 150 days or less could volunteer for the program and work in lieu of jail confinement. Deputies screened and assigned participants to one of several locations, including the Orange County Animal Care shelter, adjacent to Theo Lacy men’s jail in Orange. Participants earned one day against their sentence by working eight to 10 hours. Except when they were at the shelter, workers “were free to do . . . [as they] pleased.” A significant number of eligible females opted to participate in the CWP. On any given day during the relevant time period, up to 10 CWP participants worked at the shelter.
CWP participants signed a two-page document called the “Community Work Program Rules and Regulations” (CWP rules). The CWP rules advised that while at work, “you will be in the custody of the Orange County Sheriff’s Department. Laws, rules and regulations that pertain to an in-custody inmate will apply to you . . . .” The CWP rules admonished that failure to comply “will result in being turned away by the Work Crew Supervisor or being returned to custody.” The rules required reporting to work on time and on the days indicated, and dressing in suitable work clothes. Participants carried a document containing their booking number. Workers usually wore bright orange neon vests lettered with “CWP.” Participants generally worked outside of public view and did not interact with the public. CWP workers generally were assigned to “station three,” which included the clinic and euthanasia room. Workers also cleaned cages and animal control officers’ trucks.
CWP participants were told to stay in a designated break area in between job assignments unless they had to use the restroom. The CWP rules provided for search and seizure during the workday by law enforcement officials, not worksite supervisors, and prohibited drugs, alcohol, cigarettes, visitors, and communication with unauthorized persons. The CWP rules also barred telephone calls, horseplay, gambling, and unsafe activity. Workers were required
Workers were obligated to document excused absences for illness or court appointments. CWP participants missing work were directed to contact CWP staff immediately or an arrest warrant would issue. An excessive number of unexcused absences would result in removal from the CWP and reincarceration. Deputies visited worksites daily and spoke to site supervisors.
The CWP Inmate Supervisor Policy and Procedure Manual specified that anyone supervising CWP workers must submit to a thorough background check, complete a class on supervising inmates, and carry a certification card. The manual directed supervisors to “maintain strict compliance with the Sheriff’s Department rules and regulations regarding the handling and supervision of CWP workers.” The manual further stressed the importance of keeping relationships “on a supervisory level. Never discuss personal matters or maintain any type of personal relationship with CWP inmates.” CWP rules prohibited physical contact with participants, and rule 2.12 specified, “At no time whatsoever will you have any sexual contact with any inmate.”
Defendant was one of four regular employees with the title “Kennel Attendant II.” He was not an “officially . . . titled” CWP supervisor and did not have a certification card. His responsibilities nonetheless included supervising female CWP workers and he was “out there every day working” with them. According to the shelter’s director, a Kennel Attendant II had responsibilities in station three, had daily contact with CWP workers, and oversaw their work.
Elyse K.
Elyse K. began working at the shelter October 7, 2005, after pleading guilty to grand theft. Defendant met her and the other CWP workers at the gate, handled their paperwork, and briefed them on their duties. He referred to the women as “sweetie,” “honey” and “baby” and Elyse repeatedly asked him to stop. Three days after she started, defendant asked her to help him in the cat isolation trailer. The doors were locked, but defendant had a key. The dark, narrow trailer had two fairly high windows, and required working in close quarters. Defendant “accidentally” elbowed Elyse in the chest while retrieving supplies from a shed. He jumped and a shelf fell down. He explained, “Look, you get next to me I get all excited and frustrated. Look what you do to me.”
As a result of his activity with Elyse K., the jury convicted defendant of misdemeanor attempted consensual sexual activity with a confined adult (
Jamie S.
Jamie S. pleaded guilty to forgery and received a nine-month jail sentence. A former drug user, she previously had served time in jail and prison for theft and burglary and had worked in a CWP. She found incarceration dangerous and degrading. After serving four months, she volunteered for the CWP. Participation in the program meant she could work at other jobs on nights and weekends, and spend time with her family. She worked at the shelter from January to July 2005. Defendant was friendly and flirtatious and she was friendly in return. She described him as acting “like a very G.Q. Mexican, a very good looking guy who could have what he wanted.” He would get the workers lunch, allow them into his air-conditioned office on warm days, and let Jamie leave early for her night job.
Jamie became concerned when observing defendant’s interaction with the other female workers. He would not leave a CWP worker named Fawn S. alone and he played favorites. Jamie told a female employee “something [was] going on here” and she did not like it, but begged the employee not to say anything because she did not want to return to jail.
About three months after she started at the shelter, Jamie and defendant were in a trailer when he grabbed her hand and tried to put it on his crotch. She pulled away. About a month later, he approached her in a storage room, grabbed her shoulders, and tried to kiss her. She told him she was busy and needed in another area. On another occasion she accompanied Fawn to the cat isolation trailer, but defendant sent Jamie away after allowing Fawn inside. Defendant often told Jamie she was beautiful, but she would laugh it off.
In the counts naming Jamie as the victim, the jury convicted defendant of misdemeanor attempted consensual sexual activity with a confined adult (
Phyllis W.
Phyllis W. pleaded guilty to drug charges and received a 90-day jail sentence. A recidivist, she spent part of her sentence in jail before entering the CWP in November 2004. As the end of her time approached, she and defendant were joking around in a trailer where the animal food was stored. Defendant exposed his penis, asked her to touch it and grabbed her hand. She told him to stop because if they got caught she would have to go back to jail. He told her not to worry about it. She told an investigator this behavior occurred on several occasions in various locations, including the cat isolation trailer and the surgery center. She also described another incident when he grabbed her head as if she was giving him oral sex, and another worker came around the comer. He pressed himself against her on a few occasions and masturbated in front of her four or five times. She observed defendant go into .the trailer with other women and she spoke about defendant’s behavior with Fawn S. and Jamie S., but never reported the incidents because she feared no one would believe an inmate’s word against a supervisor’s, and she would be sent back to jail.
Another CWP worker, Lisa H., testified she inadvertently interrupted Phyllis and defendant upon entering a storage room. It appeared to her Phyllis was orally copulating defendant. She did not report the incident because it was “none of [her] business.” Defendant allowed Lisa to leave early that day.
On the counts involving Phyllis, the jury convicted defendant of misdemeanor consensual sexual activity with a confined adult. (
Fawn S.
Fawn S., convicted of drag use and commercial burglary, was admitted to the CWP and began working at the shelter in late December 2004. Defendant
Fawn testified that after she returned from an absence to attend her grandfather’s funeral, defendant called her into his office and said he “wasn’t going to play this game anymore. Either I was going to have sex with him, or go to jail.” She walked out and did not return to the shelter. Fawn was later arrested for possessing methamphetamine for sale and received a prison sentence.
On the counts involving Fawn, the jury convicted defendant of misdemeanor consensual sexual activity with a confined adult. (
Maria R.
Maria R. testified she pleaded guilty to commercial burglary and received a 20-day sentence. She had never been to jail and feared being incarcerated. After about three days in jail, she volunteered for the CWP and began working at the shelter in early December 2005. On her first day, defendant told her to work with him in the cat cage. When she entered the room, he closed the door and began masturbating. He touched her breasts and inserted his fingers into her vagina several times. She told him to stop because “they were going to see.” Defendant said he was her friend, he was “playing” and liked “to do this kind of stuff.” The incident lasted about 10 or 15 minutes. Defendant warned her not to tell anyone.
Another day, defendant pulled down his pants and said he wanted to have sex. She pushed him away. He may have touched her vagina. He tried to pull down her sweatpants and had his penis out touching the area near her belly button. He told her not to say anything. She told an investigator defendant warned her on the first day of work he would report her if she did not follow his directions. She told her sister about defendant’s sexual advances, but did not report the incident to anyone at the shelter because she was an undocumented alien and she feared authorities would send her back to jail.
Elizabeth M.
Elizabeth M. pleaded guilty to drug crimes and worked at the shelter between October and December 2004. A few weeks after she started, she became concerned when defendant began making flirtatious comments and gestures concerning her appearance. While she was cleaning the cages in the cat isolation trailer, defendant approached her from behind and starting rubbing her breast. She asked him to stop. He said “it will be okay, don’t worry about it.” He told her she would not get in trouble. She again asked him to stop and he responded, “[I]t’s okay. [I] will take care of [you].” Starting to cry, she asked him to stop and said she was not comfortable, but he continued to grope her, placing his hand under her clothing and touching her vagina. She did not report the incident because she was afraid.
A second incident occurred a few days later when defendant asked her to help him euthanize some cats. Once alone, he tried to kiss her lips and mouth. When she told him to stop, he said it would be all right, and touched her breasts over her clothing. He stopped when someone opened the door. Again, she did not report the incident because she was scared.
On another occasion, Elizabeth was cleaning the cat isolation trailer with another CWP worker when defendant ordered the other worker to leave. Elizabeth was on her knees cleaning a cage when defendant approached her, exposed his penis, pressed it against her Ups, and inserted it into her mouth. He grabbed the back of her head and held her head in place. Elizabeth began to cry. Defendant masturbated and ejaculated on the floor. He said to her, “It will be all right.” He also told her not to worry because he would take care of her.
Defendant started touching her sexually on a weekly basis. Once, he attempted to kiss her and grope her breasts. Another time, he grabbed her hand to touch his penis. Elizabeth confronted defendant, complaining his behavior was wrong because he was married and his wife also worked at the shelter. Defendant replied it would be all right and she would not get in trouble.
Elizabeth was transferred and completed her CWP assignment at a different location. She reported the incidents to law enforcement after seeing a story about defendant’s arrest in the newspaper in January 2006.
In the counts concerning Elizabeth, the jury convicted defendant of two felony counts of consensual sexual activity with a confined adult (
Defendant’s Statements
Defendant spoke to Sheriff Investigator Tracy Morris in January 2006. He denied forcing anyone at the shelter to have sex with him, but conceded exposing his penis numerous times in the context of sexual horseplay initiated by the women, “because . . . they were making fun of me saying ha . . . you know like you can’t do this . . . they’re . . . showing me what they have.” He admitted having a “little affair” with Phyllis. He said their sexual activity consisted of mutual oral copulation, sexual intercourse, and numerous incidents of foreplay in which he touched her breasts or put his fingers in her vagina. He ejaculated about eight times with Phyllis, and she masturbated him a couple of times. He admitted exposing himself to Fawn three times, touching her vagina seven or eight times, and putting his fingers in Fawn’s vagina a few times. He ejaculated once with Fawn. With Jamie, he admitted grabbing her hand and putting it on his penis over his pants, kissing her, and giving her his phone number.
At trial, the jury convicted defendant of the offenses noted above. The court sentenced defendant to an aggregate term of five years in prison. 2
II
Discussion
A. Defendant Was Properly Convicted of Engaging in Sexual Activity with a Consenting Adult Confined in a Detention Facility
Defendant contends we must reverse his convictions for consensual sexual activity with a confined adult because the incidents did not occur in a detention facility. We reject defendant’s narrow reading of
Defendant asserts he was wrongly convicted under this statute because the county animal shelter fits none of the five definitions of “detention facility” set forth in subdivision (c) of
Defendant challenges the contention that the county animal shelter was “used for the confinement of adults” within the meaning of the statute. 3 He gives two reasons why the shelter was not used for such “confinement.” First, the shelter’s purpose is to house and treat animals; its use as a work release site is purely incidental. Second, no physical restraints prevented the CWP workers from leaving the animal shelter. In other words, defendant asserts the CWP workers were not confined because they were “free to walk out.”
The first argument is unpersuasive. Only one of the statute’s five definitions of “detention facility” refers to traditional venues for holding inmates. (See
Defendant’s second argument as to the lack of barriers or other physical restraints keeping CWP workers inside the animal shelter presents a more difficult issue: What is meant by the
confinement
of persons as that term is used in
Defendant argues that the absence of iron bars and armed guards at the animal shelter necessarily means the CWP workers were not
confined
within the meaning of the statute. The Attorney General, on the other hand, contends the Legislature intended “confinement” to have a broader meaning, extending the protection of
“ ‘When construing a statute, we must “ascertain the intent of the Legislature so as to effectuate the purpose of the law.” ’ [Citation.] ‘[W]e begin with the words of a statute and give these words their ordinary meaning.’ [Citation.] ‘If the statutory language is clear and unambiguous, then we need go no further.’ [Citation.]”
(People
v.
Sinohui
(2002)
The Attorney General asserts the word “confinement” as used in
As will be shown, the rather extensive legislative history of
The bill enacting
The Legislature amended the statute in 1997 to add acute psychiatric hospitals and other specified residential health facilities, where physically and mentally disabled persons are involuntarily confined, to the list of facilities where employees cannot engage in sexual activity with confined persons. (Stats. 1997, ch. 209, § 1, p. 931.) According to the author of the bill, “Patients in locked facilities and inmates are particularly vulnerable to coercion for sexual demands. A claim of consent is ludicrous and should be barred under those circumstances.” (Sen. Com. on Public Safety, analysis of Assem. Bill No. 685 (1997-1998 Reg. Sess.) as introduced, p. 3.)
An Assembly committee analysis of the proposed 1997 amendment elaborated on the particular vulnerability of women confined in institutions. The analysis pointed out that “ ‘[wjomen are raped and molested in institutions just as they are outside, perhaps more. . . . But for women in institutions, credibility is an even greater problem than for women on the outside. They are terrified to report sexual abuse by those in power because of the possibility of retaliation and the virtual certainty of being disbelieved.’ ” (Assem. Com. on Public Safety, analysis of Assem. Bill No. 685 (1997-1998 Reg. Sess.).) Of course, testimony in this case validates the expressed legislative concern. Several of defendant’s victims testified they submitted to his sexual demands and did not report his behavior because they thought authorities would not believe them and would instead send them back to jail. 4
The foregoing legislative history is revealing. In enacting, and repeatedly amending, the statute, the Legislature fashioned a tool for preventing the sexual manipulation of persons rendered particularly vulnerable because of their status as
confined
persons held within the custody and control of institutions. The Legislature recognized that it is
confinement
itself, with its accompanying sense of “powerlessness” vis-a-vis one’s custodian, that creates vulnerability and triggers the need for protection. Consequently, this statute, originally enacted to protect inmates from sexual coercion at the hands of their jailers, was amended repeatedly to extend its protection to more persons (involuntarily confined psychiatric patients and other disabled patients, parolees) and to punish more categories of perpetrators (health care employees, detention facility contractors, and volunteers). As for inmates, the Legislature signaled its view that confinement is not limited to traditional sites of incarceration, such as prisons or jails. Instead, the Legislature made the protections of
With this legislative history in mind, we cannot conclude the Legislature intended the protections of
Taken in their totality, these conditions at the CWP animal shelter worksite constitute “confinement” within the meaning of
In resisting this conclusion, defendant relies on a literal interpretation of the word “confinement” as it is used in section 4024.2, the statute authorizing community work release programs. Essentially, defendant contends the language in the statute declaring that time served in work release is “in lieu of . . . confinement” determines for all purposes that a work release placement does not constitute “confinement.” Though this argument has superficial appeal, it fails upon closer examination.
The pertinent language in section 4024.2 is as follows: “Notwithstanding any other law, the board of supervisors of any county may authorize the sheriff or other official in charge of county correctional facilities to offer a
Defendant’s argument based on this language begins with the unobjectionable assertion that something done
“in lieu
of confinement” cannot
be
confinement; instead, the two concepts are mutually exclusive. It does not logically follow, however, that this statutory language in section 4024.2 determines that CWP participation cannot constitute “confinement” for purposes of
The fallacy in defendant’s argument is that it ignores the specific context in which the word “confinement” is used in section 4024.2. (See
People v. Braxton
(2004)
The Attorney General aptly points out the anomalous results of interpreting “confinement” in section 4024.2 to mean that voluntary work release participants are not confined for purposes of
Two appellate decisions have held that participation in a section 4024.2 work release program does not amount to “custody” for purposes of earning presentence custody credits or conduct credits. (See
People v. Wills
(1994)
In
Wills, supra,
The
Wills
court rejected the argument on the ground that section 4019, subdivision (f), “makes it clear the Legislature did not intend to make available conduct and work time credits unless the probationer is ‘in actual custody.’ ”
(Wills, supra,
In
Richter, supra,
The
Richter
court began by noting that “[w]hile ‘in lieu of’ may mean ‘in place of[,]’ it does not mean appellant was ‘in custody.’ ”
(Richter, supra,
The decisions in
Wills
and
Richter
analyzed the provisions of section 4024.2 solely to determine whether work release participation is “custody” entitling participants to conduct credits under section 4019
(Wills)
or custody credits
Wills
and
Richter
are not dispositive because the terms “confinement” and “custody” are used in various ways throughout the Penal Code and case law. For example, case law holds that persons on work furlough from jail are in “custody” for purposes of the statute punishing escape.
(People v. Haskins
(1960)
Despite a valiant effort, defendant fails to dissuade us from our conclusion that the county animal shelter was a “facility used for the confinement of adults” within the meaning of
B. Substantial Evidence Supports Defendant’s Convictions for Oral Copulation and Sexual Penetration by Threat *
Disposition
The judgment is affirmed.
O’Leary, Acting P. 1, and Moore, 1, concurred.
Appellant’s petition for review by the Supreme Court was denied June 17, 2010, SI82028.
Notes
Sanchez denied Elyse made a report.
The court imposed a three-year low term for the felony oral copulation conviction involving Elizabeth (count 13), and a consecutive two-year term for sexual penetration involving Maria (count 9). The court imposed concurrent low terms for the other felonies (counts 10, 11, 12, and 14) and concurrent jail terms for the misdemeanor convictions (counts 1, 2, 3, 5, and 7).
At oral argument, defendant raised for the first time a question as to whether the CWP at the shelter was operated “pursuant to a contract with a public entity.” (
One excerpt of legislative history concerning the 1997 amendment supports defendant’s contention that
Section 2900.5 provides, in pertinent part, as follows: “[W]hen the defendant has been in custody, including, but not limited to, any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant.. . shall be credited upon his or her term of imprisonment. . . .” (§ 2900.5, subd. (a).)
As further support for this conclusion, the court cited the statute governing
mandatory
work release programs, section 4024.3, which specifically provides that participants are entitled to custody credits. “Thus, the Legislature knew exactly how to provide custody credits under a work release program and expressly chose not to do so under section 4024.2.”
(Richter, supra,
See footnote, ante, page 407.