People v. MaciasPeople v. Macias
I. FACTUAL AND PROCEDURAL BACKGROUND
Raquel C. and dеfendant began living together in October 2012. They had two children together, and Raquel had three other minor children of her own, one of them being L., age 13. Four of the children lived in the household, and Raquel was pregnant with the fifth.
In March 2015, defendant moved out of the home. When defendant decided he was not going to move back into the household, on March 19, 2015, Raquel went through the house gathering defendant‘s belongings. While searching the shelving near defendant‘s storage area, Raquel found a box containing a “Nabi Jr.” children‘s tablet computer which was one of two tablets she and defendant had previously purchased as
Raquel then left to go shopping. Approximately an hour later, Raquel received a call from her daughter, L. Because L. was so hysterical, Raquel could not understand her. Raquel‘s sister took the phone from L. and explained there were some videos found on the tablet of L. “exposed.” When Raquel arrived home, she discovered L. had locked herself in the bathroom.
That night at 8:00 p.m. while in her home, Raquel spoke with Officer Roger Canady of the Vacaville Police Department. When he arrived, Raquel was upset and frantic. She handed him two Nabi Jr. tablets, one at the beginning of the conversation and one towards the end. One of the tablets was “missing the orange gel case and also the camera housing [was] broken off it and the camera lens attached by the wires [was] dangling out of the spot where the original camera housing was.” Around the “camera housing,” Canady observed “pry marks surrounding the bulk of it” indicating it had been “pried apart using some kind of tool and the housing was actually removed rather than simply being broken.” On the back of the same tablet, Canady noted some Velcro, which was not part of the original design, had been added. Canady and Raquel watched parts of both videos on the tablet including “most of the beginning.”
The first video was taken in a bathroom in Raquel‘s residence. In it, defendant took approximately 52 seconds setting up the camera. Apрroximately 26 seconds after he left the bathroom, L. entered and took a shower. L. was in the bathroom for 27 minutes. Once she left the bathroom, two minutes later, defendant reentered the bathroom and retrieved the tablet. While watching this video, Canady observed L.‘s “full backside including her buttocks,” which were “fully expоsed.” And during this portion of the video, there were times when Canady could see L.‘s “entire front area, including her breasts exposed” and her vaginal area.
The second video was also filmed in the bathroom. Defendant set up the camera, left the bathroom, and L. entered the bathroom 27 seconds latеr. Seventeen seconds after
When Raquel looked at both videоs with Canady, she saw L., but she turned her head and did not view portions of the videos where L. was naked and showering. She identified defendant in the videos because in one she recognized the tattoos between his fingers, and in the other she saw defendant‘s face.
After Raquel turned over “the video” to Canady, her sister notiсed there was a hole in wicker basket located on the right corner of the counter in the bathroom. The hole was the size of a dime, and inside the lid, there was a strip of Velcro.
Raquel then looked through L.‘s room to make sure “we didn‘t miss anything.” On the bookshelf in her daughter‘s room, Raquel lifted a “black lid cap” and discovered a hole, similar in size to the one in the basket, going all the way through the bookshelf. On a different bookshelf, Raquel found three holes filled in with caulking.
The Solano County District Attorney filed an information against defendant charging him in counts 1 and 2 with using a minor for purposes of posing for sexual conduct in violation of
On the first day of trial, the prosecutor dismissed counts 3 and 4. The jury later convicted defendant on count 2, using a minor for purposes of posing for sexual conduct.2
The trial court sentenced defendant to three years in state prison.
Defendant filed a timely notice of appeal.
II. DISCUSSION
Defendаnt contends the trial court had a sua sponte duty to instruct on the lesser offense of unauthorized invasion of privacy because under the accusatory pleading test, unauthorized invasion of privacy is a lesser included offense based upon the evidence
” ‘A trial court has a sua sponte duty to “instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser.” [Citation.] Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense. “The rule‘s purpose is . . . to assure, in the interest of justice, the most accurate possible verdict encompassed by the charge and supported by the evidence.” [Citation.] In light of this purpose, the court need instruct the jury on a lesser included offense only “[w]hen there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of” the lesser offense.’ ” (People v. Landry (2016) 2 Cal.5th 52, 96.) On appeal, we independently review whether the court improperly failed to instruct on a lesser included offense. (People v. Nelson (2016) 1 Cal.5th 513, 538; People v. Souza (2012) 54 Cal.4th 90, 113.)
“To determine if an offense is lesser and necessarily included in anothеr offense . . . , we apply either the elements test or the accusatory pleading test.” (People v. Shockley (2013) 58 Cal.4th 400, 404. (Shockley).)
” ‘The elements test is satisfied if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, such that all legal elements of the lesser offense are also еlements of the greater. [Citation.] In other words, ” ‘[i]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.’ ” ’ ” (People v. Robinson (2016) 63 Cal.4th 200, 207, quoting People v. Bailey (2012) 54 Cal.4th 740, 748.)
” ‘Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include аll of the elements of the lesser offense, the latter is necessarily included in the former.’ ” (Shockley, supra, 58 Cal.4th at p. 404.)
The lesser offense, misdemeanor invasion of privacy, a violation of
Dеfendant concedes, “Under the statutory elements test, unauthorized invasion of privacy is not necessarily included within using a minor for the purposes of posing for sexual conduct because it requires proof of elements that [the] greater offense does not [include], namely, use of a concealed camera with the intent to invade the privacy of another person.”
As to the accusatory pleading test, the information in the instant case, did not include language describing the misdemeanor offense of unauthorized invasion of privacy, and defendant does not argue otherwise. Nonetheless, relying on People v. Ortega (2015) 240 Cal.App.4th 956 (Ortega), defendant insists that under the accusatory pleading test, the offense of unauthorized invasion of privacy is necessarily included
In Ortega, the prosecution conducted a preliminary hearing presenting evidence of digital penetration and then filed an information charging sexual penetration by force, in violation of
However, it further held, that under “an expanded accusatory pleading test” sexual battery is a lesser included offense of forcible sexual penetration. (Ortega, supra, 240 Cal.App.4th at pp. 967–970.) Instead of relying solely on the factual allegations of the accusatory pleading, the court looked to the preliminary hearing transcript to supply the missing elements for sexual battery. Ortega explained: “Due process principles of fairness, and defendant‘s right to be prosecuted only on the noticed charges consistent with the probable cause showing supporting the accusatory pleading, compel us to agree that sexual battery is a lesser included offense of forcible sexual penetration where, as here, the preliminary hearing testimony identified defendant‘s fingers as the only object supporting the forcible sexual penetration charge.” (Id. at p. 967.)
In the present case, the Attorney General agrees with defendant that as in Ortega, the evidence at the preliminary hearing shows defendant committed invasion of privacy. On the other hand, the Attorney General maintains the trial court had no duty to instruct the jury on the lesser offense of invasion of privacy, asserting the Ortega case was wrongly decided because it is inconsistent with Supreme Court precedent in People v. Montoya (2004) 33 Cal.4th 1031 (Montoya).