THE PEOPLE, Plaintiff and Respondent, v. MARK RICHARD WALTS, Defendant and Appellant.
F087907 (Super. Ct. No. CRF68749)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Filed 6/23/25
CERTIFIED FOR PUBLICATION
OPINION
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Amanda D. Cary, Lewis A. Martinez, and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Mark Richard Walts was convicted by a jury of continuous sexual abuse of a child. The trial court sentenced defendant to a term of 12 years imprisonment. The trial court also ordered defendant to undergo an HIV test and to stay away from his ex-wife and three of his children. On appeal, defendant contends the court: (1) reversibly erred by permitting T.W.‘s mother to testify that it was possible that defendant purchased clothes for T.W. without the mother‘s knowledge; (2) erred by ordering defendant to take an HIV test; and (3) erred by ordering defendant to have no contact with his ex-wife and two of his children. We affirm defendant‘s conviction but conclude that the court erred by ordering defendant to undergo an HIV test and by ordering defendant to have no contact with his ex-wife and two of his children.
PROCEDURAL BACKGROUND
On December 2, 2022, the Tuolumne County District Attorney filed an information charging defendant with one count of continuous sexual abuse of
A jury trial began on January 31, 2024, and concluded on February 2, 2024. The jury found defendant guilty on all counts but hung on the substantial sexual conduct enhancements. The prosecution decided not to retry the enhancements.
On April 11, 2024, the trial court conducted a sentencing hearing. The court reversed defendant‘s convictions on counts 2, 3 and 4. The court then sentenced defendant to a term of 12 years’ imprisonment on count 1. The court also ordered defendant to undergo HIV testing pursuant to
On April 18, 2024, this court received a notice of appeal from defendant that was dated March 29, 2024.
GENERAL FACTUAL BACKGROUND
Defendant was born in 1953, and T.W. was born in 2007. At all relevant times, T.W. lived with defendant and her mother Tina.
Disclosure
On February 21, 2022, T.W. was at the house of her friend, N.G. T.W. told N.G. and N.G.‘s family that defendant had abused her for multiple years. T.W. also told N.G. that defendant would make her run around the house in skimpy clothes. N.G.‘s parents called the police, and the police initiated an investigation.
The police had T.W. place a pre-text call to defendant in order for T.W. to confront defendant and obtain admissions from him. During the pre-text call, defendant told T.W. multiple times to talk to a professional. However, defendant also admitted that his touching of T.W.‘s buttocks was inappropriate. Defendant observed that T.W. did not push his hands away when he grabbed her buttocks, unlike a recent instance in which W.W. pushed his hands away from her buttocks while he was trying to help W.W. fall asleep. Further, after T.W. told defendant she believed his touching or grabbing her buttocks was sexual, defendant replied, “Maybe it was. Maybe I‘m lying to myself.” Within minutes after the pretext call, defendant sent two text messages to T.W.: “Please just don‘t give mommy ammo to shoot me right now;” and “We, mommy and I, are going through a divorce that is nasty.”
Shortly after the pre-text call, defendant was interviewed by a police detective. During the interview, defendant admitted that he kissed T.W.‘s ear and grabbed T.W.‘s buttocks. Defendant said that he had a problem and that his hands could not be near T.W.‘s buttocks. Defendant admitted it was a mistake to grab T.W.‘s buttocks. Defendant told the detective he did not think T.W. was making up the allegations of abuse because he believed that children do not make up such allegations. Defendant also explained that, when talking about inappropriate conduct, culture and politics all swing or change, which the detective took to mean that defendant‘s conduct would have been viewed as appropriate in a different time. Defendant said that he did not know how many times he grabbed T.W.‘s buttocks, but it was not a “regular thing,” and it only happened if Tina was not there. After the detective informed defendant that he (the detective) had overheard the pre-text call, defendant said that it was possible that his conduct was sexual but also stated that “anything was possible.” Defendant did not explain to the detective that he was following any training regarding child molestation during the pre-text call, nor did he give any explanation about what he meant by agreeing that it was a mistake to touch T.W.‘s buttocks or that it only occurred when Tina was not present. After the interview, defendant was arrested.
Trial
T.W. testified that beginning at about age five, defendant would lay down in bed and put T.W. on his chest while she was probably wearing panties and a T-shirt and then grab, squeeze, or massage her buttocks with both hands from anywhere between 10 and 30 minutes. Defendant would tell T.W. she would understand or be grateful for what he was doing when she got older. Although T.W. was unable to provide a specific number, she testified defendant would often touch or grab her buttocks when she was between the ages of
Defendant testified he had participated in child molestation training through Parents United in an effort to support his previous wife, who herself had been the victim of childhood molestation. The training included validating a child‘s statements about molestation, keeping the child talking, not arguing with or contradicting the child, and attempting to get help for the child. Defendant explained this is what he was doing during the pre-text call (instead of arguing with T.W. or denying her allegations) because he believed that someone else had actually molested her. Defendant also denied any sexual motivation or intent in his conduct towards T.W. and also testified that he had conversations with T.W. about molestation and potential predators. Defendant believed that he was being manipulated by the investigating detective and attempted to address some of his statements to the detective. Defendant testified that he did not touch T.W.‘s buttocks improperly, and that when he told the detective it only happened when Tina was not present, he meant that T.W.‘s allegations could only reference situations in which he had to put T.W. to bed because Tina was not home and that he may have touched T.W.‘s buttocks in the process. Defendant testified that he had inadvertently put has hand on W.W.‘s buttocks while trying to put her down to sleep. Further, when he said it was a mistake to grab T.W.‘s buttocks, defendant meant it was a mistake if he actually did so; and that when he said his conduct was inappropriate, defendant only meant to “piss off” the detective because he was mad.
DISCUSSION
I. Testimony Concerning the Purchase of Clothing for T.W.
A. Parties’ Arguments
Defendant argues the trial court should have sustained his objection of speculation to a question to Tina about whether it was possible that defendant purchased clothing for T.W. without Tina‘s knowledge. Defendant argues the question was improper because it permitted the jury to surmise that he
The People argue the trial court did not abuse its discretion. The evidence showed that Tina was defendant‘s spouse, was familiar with T.W.‘s wardrobe, and had knowledge of the family‘s opportunities, activities, and possessions. Further, the People contend that Tina did not give any speculative opinion because she testified there were instances in which defendant and T.W. would shop by themselves. Alternatively, the People argue any error was harmless because the evidence of guilt was strong and defense counsel effectively addressed the issue during recross-examination.
B. Additional Background
During trial, T.W. testified defendant would make her wear provocative or revealing clothes. In anticipation of this testimony, defense counsel had the following exchange with Tina about the purchase of T.W.‘s clothing:
“Q. Do you recall who was the primary person who purchased clothes for [T.W.]?
“A. Generally me.
“Q. Generally you. [] You‘d take her shopping or you‘d purchase the clothes?
“A. Yes.
“Q. And would you say that all the clothes that you purchased her would be appropriate for her age at the time?
“A. Yes. [1]... [1]
“Q. Just to be clear, when you say that you were the one that bought the majority of her clothing, was there ever a time where you experienced [defendant] buying [T.W.] clothing?
“A. Actually buying her clothing? No.
“Q. Yeah.
“A. He would be shopping with us, yes. “Q. But he wasn‘t the one picking out the clothes or buying the clothes or anything like that?
“A. No. [] There were occasions when he would buy or pick out outfits for her.
“Q. Okay. But you were there and purchased with them, and you approved of the clothing that was purchased?
“A. Yes.”
On redirect, the prosecutor and Tina had the following exchange, which included an objection from defense counsel:
“Q. Okay. And one other question: Are there times – is it possible there were times when [defendant] went shopping without you and perhaps he purchased things for [T.W.] without you knowing?
“[DEFENSE COUNSEL]: Objection. Speculation, calls for speculation.
“THE COURT: Overruled.
“A. Oh, yeah. There were occasions when he would go buy, you know – you know, they would go by themselves.”
Finally, on recross-examination, defense counsel and Tina had the following exchange:
“Q. You said that sometimes there may have been a time where [defendant] bought [T.W.] clothing. Did you always see the clothing?
“A. Well, yeah.
“Q. Okay. And so, therefore, whatever was bought and whatever she had you approved of; is that fair to say?
“A. Sure.”
C. Legal Standard
“Speculation” is “[t]he practice or an instance of theorizing about matters over which there is no certain knowledge.” (Black‘s Law Dict. (12th
D. Analysis
Prior to the prosecutor‘s question, Tina‘s testimony established that she was generally responsible for purchasing T.W.‘s clothes and that T.W.‘s clothes were age appropriate. Tina also testified that defendant would occasionally go clothes shopping with her and T.W. and would sometimes pick out clothes for T.W. during those trips, but she (Tina) would approve the clothing that ultimately was purchased. This testimony established that Tina was primarily responsible for T.W.‘s clothes, was aware of how and when T.W.‘s clothes were purchased, and approved of the clothes that were purchased even if she did not initially pick them out. Moreover, as T.W.‘s mother, defendant‘s wife, and part of defendant‘s household, Tina would naturally be aware of how the family‘s schedules operated, including the timing and nature of shopping trips. In other words, Tina‘s testimony demonstrated a personal awareness of how T.W.‘s clothes were purchased and when there were opportunities to purchase T.W.‘s clothes. Based on this foundational testimony, we cannot conclude that the court‘s decision to overrule defendant‘s speculation objection was beyond all reason or so arbitrary and capricious that it constitutes a miscarriage of justice. (See People v. Miracle, supra, 6 Cal.5th at pp. 346-347; People v. Rodriguez, supra, 58 Cal.4th at p. 631 [“Here, the testimony the court permitted was based on facts the witnesses had personally observed. The court did not abuse
Alternatively, even if the trial court erred in overruling the objection, defendant suffered no harm. Tina answered the prosecutor‘s question by confirming there were times when defendant and T.W. did in fact go shopping by themselves. Tina‘s response was definite, clearly based on her own firsthand knowledge, and not speculative. Tina‘s response was also consistent with T.W.‘s testimony that there were times defendant purchased provocative clothes for her. Further, defendant‘s counsel handled Tina‘s response in an adept way. Tina admitted that even when defendant and T.W. went shopping alone, she “always” saw and approved of the clothes that had been purchased. In other words, Tina‘s testimony shows that even when she was not present when T.W.‘s clothes were purchased, she ultimately saw and approved of all clothes that were purchased for T.W. This testimony tends to undercut T.W.‘s testimony that defendant bought her “revealing” or “provocative” clothing or made her wear such clothing around the house. Finally, we agree with the People‘s assessment that Tina‘s answer was a minor point in the trial. The focus of the trial, as well as the prosecutor‘s closing argument, was on the testimony of T.W., the testimony of defendant, defendant‘s statements to law enforcement, and defendant‘s statements to T.W. in the pre-text call. Tina‘s testimony had nothing to do with the nature of the physical abuse described by T.W., nor did it affect defendant‘s inculpatory statements to law enforcement and T.W. Although the prosecutor commented one time in rebuttal on Tina‘s testimony and the opportunity of defendant to buy T.W. clothes, the comment was brief and amounted to little more than five lines of argument. Quite simply, this aspect of Tina‘s testimony was not central to the case and was not nearly as significant as defendant would have us to believe. Therefore, under either the beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, or the probability of a more favorable outcome standard of People v. Watson (1956) 46 Cal.2d 818, we conclude that any error by the court in overruling defendant‘s speculation objection was harmless. (People v. Eubanks, supra, 53 Cal.4th at p. 152.)
II. Inclusion of Tina and M.W. as Protected Persons
A. Parties’ Arguments
Defendant argues that the trial court was authorized to issue a postconviction protective order under
The People argue that defendant forfeited the issue by failing to object. Alternatively, the People argue that postconviction protective orders may be issued to protect a victim or members of their household if there is some evidence the defendant committed or attempted to commit some harm within the victim‘s household. The People aver that Tina, T.W., W.W., and M.W. are part of the same household. The People argue defendant victimized M.W. because he attempted to solicit M.W. into delivering a letter to T.W. in violation of a pretrial order and he wrote a letter to M.W. that constitutes harassment. With respect to Tina, the People argue that defendant‘s actions towards T.W. caused Tina psychic harm, which makes her a victim under People v. Clayburg (2012) 211 Cal.App.4th 86 (Clayburg). Finally, the People argue that there was testimony that defendant touched W.W.‘s buttocks, which constitutes harm to W.W.
B. Legal Standard
1. Forfeiture
Defense counsel did not object to the inclusion of people other than T.W. as protected parties under the protective order. Because the issue could have been raised in the trial court but was not, defendant has forfeited the issue. (People v. McCullough (2013) 56 Cal.4th 589, 593; People v. Stowell (2003) 31 Cal.4th 1107, 1114.)
However, there are exceptions to the forfeiture doctrine that apply in this case. First, defendant‘s argument is based entirely on the plain language of
2. Protected Parties other than T.W.
The People rely heavily on Race to argue that the definition of the term “victim” is sufficiently broad to cover Tina, W.W., and M.W. In Race, the defendant was charged with two counts of lewd and lascivious acts upon a child under the age of 14 in violation of
We agree with the People that Race is supportive of their position, but we are not confident that Race represents the current state of the law. At the time that Race was decided in 2017, the definition of the term “victim” in
As quoted in Race itself, in 2017,
The Legislature‘s choice to use an indefinite article or a definite article is significant. (E.g. Rapanos v. United States (2006) 547 U.S. 715, 732–733; North American Title Co. v. Superior Court (2024) 17 Cal.5th 155, 174–175; Pineda v. Bank of America, N.A. (2010) 50 Cal.4th 1389, 1396–1397 (Pineda).) “Use of the indefinite articles ‘a’ or ‘an’ signals a general reference, while use of the definite article ‘the’ (or ‘these’ in the instance of plural nouns) refers to a specific person, place, or thing.” (Pineda, at p. 1396; Robinson v. Superior Court (2023) 88 Cal.App.5th 1144, 1166; Lincoln Unified School Dist. v. Superior Court (2020) 45 Cal.App.5th 1079, 1094.) Stated differently, the indefinite articles “a” and “an” generalize their objects, while the definite article “the” particularizes an object and is a ” ‘word of limitation’ ” that refers to ” ‘something that ... exists only one at a time.’ ” (CD Investment Co. v. California Ins. Guarantee Assn. (2000) 84 Cal.App.4th 1410, 1421 (CD Investment).)
Applying these principles to the 2018 amendments to
Third, it follows from the previous two conclusions that a protective order is available for one or more persons as long as each person is a “victim” of any one of the specifically enumerated crimes under
As applied to this case, defendant was convicted of a single count of continuous sexual abuse of a child in violation of
In terms of a victim, the information alleged the crime occurred between February 2012 and February 2017 and that the abuse was against T.W. No other time frame is alleged, and no other abused person or victim is identified in the information.4 Similarly, the verdict form simply states that the jury found defendant guilty of violating
The People also rely on Clayburg to argue that the term “victim” should be given a meaning expansive enough to encompass Tina, W.W., and M.W. Clayburg read the term “victim” to include the daughter of someone who had been stalked by the defendant. (Clayburg, supra, 211 Cal.App.4th at pp. 91–92.) However, as recognized by the People, Clayburg involved a
In sum, Tina, W.W., and M.W. were not “victims” of the
III. Order for HIV Testing
In relevant part,
The record reflects that only saliva through kisses on the cheek, forehead, and ear may have been transferred from defendant to T.W. The federal Fourth Circuit Court of Appeals has noted that, “[u]nlike some viruses, HIV is not easily transmitted. It cannot spread by saliva, tears, or sweat ....” (Roe v. United States Department of Defense (4th Cir. 2020) 947 F.3d 207, 213, italics added.) In light of the parties’ agreement, as well as the observation of the Fourth Circuit, we conclude the trial court erred by ordering defendant to undergo an HIV test pursuant to
DISPOSITION
The trial court‘s order requiring defendant to submit to an HIV test pursuant to
DE SANTOS, J.
WE CONCUR:
DETJEN, Acting P. J.
FRANSON, J.