(Super. Ct. No. CRF-08-458)
The opinion of the court was delivered by: Butz , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In June 2009, a jury convicted defendant Joseph Patrick Griesa of annoying or molesting his 17-year-old employee and contributing to her delinquency, acquitted him of sexually battering her, and was unable to reach verdicts on five other counts involving her. The jury also found him guilty of concealing a pair of 14-year-old runaways from their parents, and of contributing to their delinquency. The jury acquitted him of two counts of sexual offenses against two other victims. In addition to these crimes against the person, the jury convicted him of two counts each of failing to file returns under the Unemployment Insurance Code (UIC) or making required UIC payments.
The trial judge subsequently recused herself when she learned of her former husband's "pivotal involvement . . . in the Griesa matter" as an attorney for defendant in negotiations with the prosecutor before defendant's indictment in 2008. The remainder of the Yuba County bench disqualified itself for unspecified reasons, and the Chief Justice assigned a retired Nevada County judge to the case.
A year later, the prosecution agreed to dismiss the five remaining charges involving the teen employee. The trial court granted defendant's motion to reduce the concealment convictions to misdemeanors. The court denied his motion to strike the requirement of registering as a sex offender. It then suspended imposition of sentence and placed defendant on a five-year probationary period (conditioned inter alia on a 270-day jail term).*fn1
On appeal, defendant maintains that there is insufficient evidence to sustain his convictions for contributing to the delinquency of the runaways because these were premised on his inducing them to violate curfew and the prosecution did not introduce any evidence regarding the pertinent curfew; the People concede error. Defendant contends there is also insufficient evidence that he concealed the runaways from their parents, or that his conduct with his teenage employee within the statute of limitations would have disturbed a reasonable person (layering claims of prosecutorial misconduct and ineffective assistance of counsel upon the latter). In an argument one could charitably describe as novel, defendant asserts the UIC claims are barred because the "government" failed to exhaust its administrative remedies. Finally, he raises the specter of instructional error in two of the UIC counts, arguing one of them did not include the type of report that he had failed to file and the other entirely failed to include the essence of the offense (the willful failure to remit the amounts of UIC obligations) among the elements that were listed.
We shall reverse defendant's convictions for contributing to the delinquency of the runaways and for failing to remit obligations due under the UIC. We shall affirm the remaining convictions, and the order granting probation (with directions to amend the order to reflect the statutory components underlying the penalty assessments in the aggregate total of $1,140 ordered under Pen. Code, § 290.3).
FACTUAL AND PROCEDURAL BACKGROUND
The teen employee was born in 1990 and is known by a nickname (which we omit for reasons of privacy). She began working in the fall of 2006 for defendant's towing company. She succeeded her sister, who was pregnant and leaving the job. While the teen employee testified to defendant's course of physical and sexual abuse commencing after the office Christmas party in 2006, all we need note (given the disposition of the remainder of the charges) is that the prosecution tied the charge of annoying or molesting her explicitly to a series of text messages that defendant exchanged with her (and to a recorded phone call between them) in August through November 2007. The conviction for contributing to her delinquency is based on encouraging her to lie to the police in the events involving the runaways, to which we next turn.
The two runaways were 14. In November 2007, they slipped out of the Linda home of one of their parents on the morning after a Friday night sleepover, leaving a note saying that they wanted more freedom. At a florist shop, they met up with a tow truck defendant had sent to pick them up, which took them to a football game in Yuba City. Defendant was at the game with one of their boyfriends, who had asked him to send the tow truck. He coached the boyfriend in football (and was familiar as a result with his girlfriend), and the boyfriend was in his care for the weekend.
Defendant had tickets for a dinner dance that evening. After the game, he dropped off the runaways, the boyfriend, and two other teens at a park near his home about a half-hour before dark.
The runaways testified they told defendant that they had absconded from home. He urged them to call their parents, but did not otherwise act on this information. They testified defendant said they could stay at his house for the evening after he left with his wife. He spoke with them later on the phone, telling them to lock themselves in his son's room before he got home so that his wife would not see them. They told him that they had not yet called their parents. He again urged them to do so, because one of their mothers, who knew defendant, had left him a voice mail asking if he knew her daughter's whereabouts.*fn2
Defendant testified that when he dropped off the group at the park, he had told the boyfriend to return to defendant's house when it got dark, and never told the runaways to go to his home. When he returned home, he assumed they had gone home.
Defendant testified he woke early Sunday morning; in checking on his sons, he found that the runaways were in his older son's room with the son and the boyfriend. He told them they had to leave before his wife woke up. He drove them to a fast-food restaurant in Marysville. During the ride, he got some cash for them for food and discussed why they had run away. He dropped them off at the restaurant at about 6:00 a.m.
The runaways called defendant later that morning and told him they did not know what to do. He said they could stay for a while at his towing business. They walked over there, after calling their parents and telling them not to worry (without letting them know where they were). An employee let them in, defendant having told her to expect them. The employee testified that she had been watching for the girls to arrive after defendant's call, and saw a car resembling defendant's distinctive vehicle drop them off at the business. The teenage employee also testified that the girls had told her that defendant had dropped them off at the business after they spent the night at his house.
When the teenage employee arrived at work that morning, the other employee told her defendant had dropped off the two girls and said to call him about them when she arrived. The teenage employee testified defendant told her only that if anyone asked about their presence, she should say they were trainees. Defendant testified he had told the teenage employee not to get involved with the two girls.
Two police officers arrived shortly afterward. A citizen had flagged them down to report juvenile runaways being on the premises. The teenage employee told them the two girls were trainees and were not minors. In speaking to the officers outside, the girls admitted being minor runaways. The officers confronted the teenage employee with this information, who admitted that defendant had brought them there. When the officers called defendant, he denied any knowledge of the presence of the runaways, ...