Filed 8/30/21 P. v. Lopez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B307113
(Super. Ct. No. 2018004712
Plaintiff and Respondent, (Ventura County)
v.
JAMES LOPEZ, JR.,
Defendant and Appellant.
James Lopez, Jr. (Lopez) appeals a judgment following
conviction of oral copulation with a minor, two counts of sale or
furnishing cocaine, sale or furnishing alprazolam (Xanax), and
possession for sale of alprazolam, with age-difference allegations
regarding the drug-furnishing counts. (Pen. Code, former § 288a,
subd. (b)(1); Health & Saf. Code, §§ 11353, 11375, subd. (b)(1),
11353.1, subd. (a)(3).)
This appeal concerns Lopez’s furnishing of cocaine and
alprazolam to two minor teenage girls whom he met online.
Lopez also committed sexual acts with one girl, in part
memorialized by photographs and videos on her and his cellular
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telephones. On appeal, he challenges the trial court’s admission
of her statements with a sheriff’s deputy pursuant to the fresh
complaint doctrine. He also contends that the court erred by
imposing a one-year age-difference enhancement on a drug-
furnishing count sentenced consecutively. (Health & Saf. Code,
§ 11353.1, subd. (a)(3).) We reject these contentions and affirm.
FACTUAL AND PROCEDURAL HISTORY
In February 2018, Jane Doe 1 was 16 years old and lived
with her family in Camarillo. She met Lopez online through
Snapchat and they became acquainted. Lopez was then 20 years
old.
On February 6, 2018, Jane Doe 1 drove to Lopez’s residence
around midnight. Lopez gave her alprazolam pills and a drink
that contained crushed pills. At trial, she testified that she did
not recall the evening other than him driving her vehicle, a
firearm inside the vehicle, and her vaginal penetration with
sexual paraphernalia.
The following morning, Jane Doe 1 looked at her telephone
and saw “Snapchat Memories” of Lopez and her using cocaine. A
telephone video displayed Lopez inhaling cocaine from her naked
body and another video displayed a firearm in her mouth. At
trial, the prosecutor presented evidence of the videos and
photographs taken from the videos.
When Jane Doe 1’s mother returned home that evening,
she found Jane Doe 1 confused and incoherent. Jane Doe 1’s
mother searched her daughter’s purse and found a bag that
contained white rocks. She also found a capped but opened
whiskey bottle in the bedroom. Jane Doe 1’s mother then called
the police.
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Jane Doe 1’s mother searched her daughter’s telephone and
found videos and photographs depicting drug use, drugs, sexual
paraphernalia, and sexual conduct between Lopez and her
daughter.
Ventura County Sheriff’s Deputy Sam Moss arrived at Jane
Doe 1’s home and he and her mother searched Jane Doe 1’s
bedroom, telephone, and purse. They found a man’s necktie in
the bedroom that was similar to that in a video depicting a
necktie around Jane Doe 1’s neck and a firearm in her mouth.
They also found prescription pills that appeared to be alprazolam
in Jane Doe 1’s purse.
Moss then spoke with Jane Doe 1, who was emotional and
appeared to be under the influence of drugs. She informed Moss
that she and Lopez engaged in sexual acts, including his fondling
of her breasts, oral copulation, and attempted intercourse.
Laboratory testing of Jane Doe 1’s blood revealed cocaine, cocaine
metabolite, and alprazolam.
On February 8, 2018, sheriff’s deputies detained Lopez
following a traffic stop. Jane Doe 2, 15 years old, was a
passenger in Lopez’s vehicle. Jane Doe 2 appeared to be under
the influence of drugs. At trial, she testified that she knew Lopez
for several weeks and had used cocaine and alprazolam with him.
Later that night, sheriff’s deputies searched Lopez’s home
and found a scale, cocaine, marijuana, and 504 alprazolam pills.
They also discovered a pellet gun that appeared to be the firearm
in Jane Doe 1’s mouth in the video. Deputies also recovered
Lopez’s cellular telephone which contained videos of drugs and
depicted Jane Doe 1 in his bedroom.
Sheriff’s Deputy Dillan Alvarez interviewed Lopez on
February 8, 2018. Lopez admitted providing cocaine and
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alprazolam pills to Jane Doe 1 and Jane Doe 2. Lopez also stated
that Jane Doe 1 orally copulated him when he visited her home.
Asked to explain, he stated that Jane Doe 1 “sucked on [his]
penis.” At trial, the prosecutor played the interview recording.
The jury convicted Lopez of oral copulation with a minor,
two counts of sale or furnishing cocaine, sale or furnishing
alprazolam, and possession for sale of alprazolam. (Pen. Code,
former § 288a, subd. (b)(1); Health & Saf. Code, §§ 11353, 11375,
subd. (b)(1).) The jury also found that the victims were at least
four years younger than Lopez at the time he furnished the
illegal drugs (counts 2, 3, and 4). (Health & Saf. Code, § 11353.1,
subd. (a)(3).)
The trial court sentenced Lopez to eight years four months
imprisonment, consisting of a principal three-year term for count
2 plus one year for the age-difference enhancement (Jane Doe 1);
a subordinate consecutive two-year term for count 4 plus a full
one-year term for the age-difference enhancement (Jane Doe 2);
subordinate consecutive eight-month terms for the oral
copulation and possession for sale convictions in counts 1 and 5;
and a concurrent three-year term for the sale or furnishing of
alprazolam in count 3. The court imposed various fines and fees
and awarded Lopez 268 days of presentence custody credit.
Lopez appeals and contends that the trial court erred by:
1) admitting evidence of Jane Doe 1’s complaint as a fresh
complaint, and 2) imposing a full consecutive one-year term for
the age-difference enhancement on count 4 (Jane Doe 2).
DISCUSSION
I.
Lopez asserts that the trial court erred by admitting
evidence of Jane Doe 1’s complaint to Deputy Moss as a fresh
4
complaint. He contends the error is prejudicial regarding the oral
copulation count and denied him due process of law and a fair
trial.
Over defense hearsay objection, the trial court admitted
evidence of these four statements: “[T]here was fondling of her
bare breasts. There was oral copulation where she did give him a
blowjob. And he did ejaculate on her face. And there was
attempted vaginal intercourse where he attempted to put his
penis in her vagina but wasn’t able to be erect to make that
happen.” The only charged sexual offense was oral copulation.
We review the trial court’s exercise of discretion in
admitting or excluding evidence for an abuse of discretion, i.e.,
whether the court exercised its discretion in an arbitrary,
capricious, or patently absurd manner resulting in a miscarriage
of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
In People v. Brown (1994) 8 Cal.4th 746, 749-750, our
Supreme Court defined the fresh complaint doctrine as: “[P]roof
of an extrajudicial complaint, made by the victim of a sexual
offense, disclosing the alleged assault, may be admissible for a
limited, nonhearsay purpose – namely, to establish the fact of,
and the circumstances surrounding, the victim’s disclosure of the
assault to others – whenever the fact that the disclosure was
made and the circumstances under which it was made are
relevant to the trier of fact’s determination as to whether the
offense occurred.” The fact of complaint does not include details
of the incident, but does include evidence demonstrating the
complaint related to the matter being inquired into and was not a
complaint foreign to the subject. (Id. at p. 756.) Consequently,
“the alleged victim’s statement of the nature of the offense and
5
the identity of the asserted offender, without details, is proper.”
(People v. Burton (1961) 55 Cal.2d 328, 351, italics omitted.)
The trial court did not abuse its discretion by admitting
Jane Doe 1’s statements to Moss as a fresh complaint. She
identified her sexual offender and the nature of the only charged
sexual offense committed (oral copulation) without details or
further description. (People v. Burton, supra, 55 Cal.2d 328, 352
[rejection of argument of inadmissible detail that defendant
forced victim to play with his penis].) Jane Doe 1 provided no
more details on oral copulation beyond that necessary to identify
the sexual act committed.
It bears repeating that Lopez admitted he engaged in the
act of oral copulation with a minor. And the recording of this
admission was played to the jury. The totality of the evidence
more than satisfies the dissent’s concern over corpus delicti.
II.1
Lopez argues that the trial court erred by imposing a full
one-year enhancement pursuant to section 11353.1, subdivision
(a)(3) for count 4, rather than a subordinate consecutive
enhancement of eight months pursuant to Penal Code section
1170.1, subdivision (a). He points out that Penal Code section
1170.1 was amended following the 1989 enactment of section
11353.1, and, as the more recent statute, he asserts that it should
govern.
Penal Code section 1170.1, subdivision (a) provides as
relevant: “Except as otherwise provided by law, . . . when any
person is convicted of two or more felonies, whether in the same
proceeding or court or in different proceedings or courts, and
1All statutory references in part II are to the Health and
Safety Code unless stated otherwise.
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whether by judgment rendered by the same or by a different
court, and a consecutive term of imprisonment is imposed under
[Penal Code] Sections 669 and 1170, the aggregate term of
imprisonment for all these convictions shall be the sum of the
principal term, the subordinate term, and any additional term
imposed for applicable enhancements for prior convictions, prior
prison terms, and [Penal Code] Section 12022.1. The principal
term shall consist of the greatest term of imprisonment imposed
by the court for any of the crimes, including any term imposed for
applicable specific enhancements. The subordinate term for each
consecutive offense shall consist of one-third of the middle term of
imprisonment prescribed for each other felony conviction for
which a consecutive term of imprisonment is imposed, and shall
include one-third of the term imposed for any specific
enhancements applicable to those subordinate offenses.” (Italics
added.) Penal Code section 1170.11, enacted in 1997, defines
“specific enhancement[s]” to include the age-difference
enhancement of section 11353.1.
Section 11353.1 provides sentence enhancements in certain
circumstances involving controlled substances. Subdivision (a)(3)
provides: “Notwithstanding any other provision of law, . . . [¶]
(3) If the offense involved a minor who is at least four years
younger than the defendant, the defendant shall, as a full and
separately served enhancement to any other enhancement
provided in this subdivision, be punished by imprisonment in the
state prison for one, two, or three years, at the discretion of the
court.” (Italics added.) Importantly, subdivision (c) provides:
“The additional punishment provided in this section shall be in
addition to any other punishment provided by law and shall not
be limited by any other provision of law.” (Italics added.)
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People v. Hernandez (1993) 18 Cal.App.4th 1840, 1845-
1846, concluded that then Penal Code section 1170.1, subdivision
(a)’s sentencing limitation regarding enhancements did not
preclude imposition of a full term age-difference enhancement
pursuant to section 11353.1, subdivision (a)(3). Hernandez relied
upon section 11353.1, subdivision (c), stating that the age-
difference enhancement “shall not be limited by any other
provision of law.” (Hernandez, at p. 1845.) Hernandez reasoned
in part that section 11353.1 was a specific statute that controlled
over the more general sentencing provisions of then Penal Code
section 1170.1, subdivision (a). (Hernandez, at p. 1846.)
The trial court properly imposed the full-term enhancement
here because there is no conflict between the two statutes. Penal
Code section 1170.1, subdivision (a) was amended in 2000 to add,
among other things, the broad exception, “Except as otherwise
provided by law . . . .” (No. 8 West’s Cal. Legis. Service, p. 3572
(Assem. Bill No. 1808).)2 Section 11353.1, subdivision (a), a more
specific statute, states the enhancement is imposed
“[n]otwithstanding any other provision of law,” and subdivision
(c) states that the enhancement “shall not be limited by any other
provision of law.” (People v. Hernandez, supra, 18 Cal.App.4th
1840, 1846.) We construe the law to effect its objective. (Id. at
p. 1847.) The statutes, read together, are not in conflict.
Lopez’s reliance upon People v. Moody (2002) 96
Cal.App.4th 987 is misplaced. The crimes committed in Moody
2 Prior to the 2000 amendment, Penal Code section 1170.1,
subdivision (a), read: “Except as provided in subdivisions (b) and
(c), and subject to [Penal Code] Section 654 . . . .” The 2000
amendment occurred, of course, following the 1989 enactment of
section 11353.1, the 1997 enactment of Penal Code section
1170.11, and People v. Hernandez, supra, 18 Cal.App.4th 1840.
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occurred prior to the effective date of the 2000 amendments,
particularly the “[e]xcept as otherwise provided by law” language
in Penal Code section 1170.1.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
I concur:
PERREN, J.
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TANGEMAN, J., Dissenting:
I respectfully dissent. The trial court erred when it ruled
that Deputy Moss’s statements were admissible pursuant to the
fresh complaint doctrine. The majority glosses over this error by
proclaiming that Jane Doe 1 merely described “the nature of the
sexual offenses committed without details or further description.”
(Maj. opn. ante, at p. 6, italics added.) I disagree with that
characterization.
In my opinion, the admitted statements included gratuitous
and highly prejudicial details (“there was fondling of her bare
breasts. . . . she did give him a blowjob. And he did ejaculate on
her face. And there was attempted vaginal intercourse . . . but
[he] wasn’t able to be erect to make that happen”) which go far
beyond a general description of a sexual assault. Even
respondent implicitly acknowledges this problem when it
misleadingly characterizes the testimony as follows: “Here,
Deputy Moss’s testimony—that [Jane Doe 1] told him that she
engaged in sexual activity with appellant—fell within the scope of
the fresh complaint doctrine” (respondent’s brief at p. 14, italics
added). Had it happened that way, respondent and the majority
would be correct. But it didn’t happen that way.
Nor was the error harmless. Apart from these statements,
which were not admissible for their truth in any event (People v.
Ramirez (2006) 143 Cal.App.4th 1512, 1522), the only other
evidence of oral copulation consisted of appellant’s admissions.
But those admissions alone cannot support the conviction
pursuant to the corpus delicti rule. (See People v. Alvarez (2002)
27 Cal.4th 1161, 1180.)
Even under the more deferential standard of harmless
error set forth in People v. Watson (1956) 46 Cal.2d 818, 836,
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reversal is compelled here. This case is unlike People v. Manning
(2008) 165 Cal.App.4th 870, 880-881, where the court found
harmless error in admitting the victim’s “fresh complaint
statements” because those statements “were consistent with and
cumulative to her trial testimony.” Jane Doe 1 did not make, or
recall making, similar statements in her testimony. Accordingly,
no admissible evidence sufficient to support a conviction for oral
copulation exists here. I would reverse the conviction for oral
copulation.
NOT TO BE PUBLISHED.
TANGEMAN, J.
2
Anthony J. Sabo, Judge
Superior Court of County of Ventura
______________________________
Mark D. Lenenberg, under appointment for the Court of
Appeal, for Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Michael R. Johnsen and
David E. Madeo, Deputy Attorneys General, for Plaintiff and
Respondent.
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