California Court of Appeal, Second District, Fourth Division
[DEPUBLISHED BY ORDER]
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from a judgment of the Superior Court of Los Angeles County, Tomson T. Ong, Judge. Affirmed. (Los Angeles County Super. Ct. No. NA090057)
Bernstein Law Office, Inc., Bob Bernstein and Nathaniel Clark for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and Robert C. Schneider, Deputy Attorneys [165 Cal.Rptr.3d 651] General, for Plaintiff and Respondent.
Appellant Jose Armando Algire challenges his conviction for forcible sexual penetration. He maintains that the trial court erred in admitting a recorded conversation, denying a continuance, and limiting his expert's testimony. In the published portion of this opinion, we reject appellant's contention that the trial court contravened the exclusionary rule in Penal Code section 632, subdivision (d), in admitting an audio recording of a conversation between appellant and his victim. We conclude that the " Right to Truth-in-Evidence" provision of the California Constitution (Cal. Const., art. I, § 28, subd. (f), par. (2)), as enacted by the passage of Proposition 8 in 1982, abrogated that exclusionary rule. In the unpublished portions of the opinion, we reject appellant's remaining contentions. We therefore affirm.
On March 14, 2012, an information was filed, charging appellant with sexual penetration with a foreign object (Pen.Code § 289, subd. (a)(1)). Appellant pleaded not guilty. A jury found appellant guilty as charged. On October 3, 2012, the trial court sentenced appellant to a term of eight years in prison.
A. Prosecution Evidence
Stevie J., appellant's victim, is also his step-daughter. Stevie
was born in China in 1988. In April 2006, following her mother's marriage to
Stevie came to the United States to live with her mother, appellant, and his two children. She was then 17.
Stevie testified as follows: When she took up residence with appellant, he repeatedly hugged her. Stevie initially believed that his conduct was a " Western cultural thing," as it did not occur in China. Appellant soon began trying to kiss her during the hugs, and also engaged in other inappropriate behavior. On one occasion, he told her that when he was young, a neighbor compensated him for mowing her lawn by having sex with him. On another occasion, appellant approached her from behind while she was reading a book, and placed his hands on her breasts. When Stevie pushed him away, he said that if she discussed the incident with her mother, he would " kick [Stevie] back to China." Stevie said nothing to her mother regarding appellant's misconduct because she did not want to endanger her mother's marriage.
On October 25, 2006, while Stevie's mother was absent, appellant asked Stevie to enter his bedroom. When she did so, he pushed her onto the bed and kissed her. He then moved his hands to her underwear and inserted his fingers into her vagina. Stevie struggled away from him, went to her room, and locked the door. Appellant said through the door, " If you tell anyone[ ] else [,] including your mom, I'm going to kick you guys back to China and your green card is over, the marriage is over." Stevie contacted a friend, who accompanied Stevie to a park. There, Stevie told the friend only that appellant had threatened her. Stevie did not expressly report appellant's sexual misconduct [165 Cal.Rptr.3d 652] to anyone, as she was fearful that doing so would end her mother's marriage.
In December 2006, after her natural father died in China, Stevie visited China for approximately six months. During Stevie's visit, appellant informed her by e-mail that he wanted ...