Appeal from a judgment of the Superior Court of Orange County, John D. Conley, Judge. Affirmed. (Super. Ct. No. 06CF0283).
The opinion of the court was delivered by: Aronson, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
In this case, we affirm defendant Frank Martin Bojorquez's convictions of consensual sexual activity with a confined adult (Pen. Code, § 289.6, subd. (a)(2); all statutory references are to this code), based on his conduct while supervising community work release participants at a county animal shelter. For the reasons explained below, we reject defendant's argument that the sexual activity did not occur in a "detention facility" within the meaning of section 289.6.
In the unpublished portion of this opinion, we conclude substantial evidence supports defendant's convictions of sexual penetration and oral copulation by official threat to incarcerate. (§§ 289, subd. (g), 288k, subd. (a).) We therefore affirm the judgment.
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 work day by law enforcement officials, not work site 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 to bring a lunch and could not leave the work site at lunchtime. The CWP rules provided the worker was "expected to work as ordered and instructed by the Work Crew Supervisor. Disrespect to the supervisor or failure to perform any assigned duty will result in being returned to custody." Participants were required to obtain a supervisor's initials at the end of every workday.
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 work sites 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. 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."
The incident made her uncomfortable and she told defendant "that's just not cool." Based on this incident and because he seemed "very flirtatious with a lot of the girls," she switched to working weekends when defendant did not work. On the first or second weekend, Elyse told a female supervisor, Bernita Sanchez, about the trailer incident.*fn2 Elyse made an official report to a CWP deputy sheriff on her last day at the shelter in December 2005. She did not file an earlier report because she feared if she caused problems she might have to serve the remainder of her sentence in jail.
As a result of his activity with Elyse K., the jury convicted defendant of misdemeanor attempted consensual sexual activity with a confined adult (§ 289.6 [count 1]) and misdemeanor sexual battery (§ 243.4, subd. (e)(1) [count 2]).
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.
Jamie complained about the program to a neighbor, Deputy Sheriff Jeff Brown, but asked him not to say anything. In December 2005, Brown and Sheriff Investigator Tracy Morris interviewed Jamie at jail after she was arrested for driving under the influence. They arranged for her to speak to defendant on the telephone and recorded the call. Defendant told her to say nothing happened and everything would be fine. About a month later, Jamie pleaded guilty and received a 90- day sentence.
In the counts naming Jamie as the victim, the jury convicted defendant of misdemeanor attempted consensual sexual activity with a confined adult (§ 289.6 [count 3]), but acquitted him of felony attempted sexual battery by restraint (§ 243.4; [count 4]).
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 corner. 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. (§ 289.6 [count 5].) The trial court acquitted defendant of the count charging felony sexual ...