People v. Tobias
| Decision Date | 23 December 1999 |
| Docket Number | No. H018424.,H018424. |
| Citation | 91 Cal.Rptr.2d 396,77 Cal.App.4th 38 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Joel Robert TOBIAS, Defendant and Appellant. |
Chris R. Redburn by Appointment under the Sixth District Appellate Program, San Francisco, for Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Jeremy Friedlander, Deputy Attorney General, for Respondent.
Defendant was convicted by jury trial of ten counts of incest (Pen.Code, § 285) with his daughter. He pleaded guilty to one misdemeanor count of failing to register as a sex offender (Pen.Code, § 290, subd. (g)). The court found true an allegation that defendant had suffered a prior conviction within the meaning of Penal Code sections 667, subdivisions (b) to (i) and 1170.12. Defendant was committed to state prison for 18 years. On appeal, he asserts that (1) his trial counsel was prejudicially deficient in (a) failing to seek redaction of three words spoken by defendant on an incriminating tape-recording of a conversation between defendant and his daughter and (b) failing to bring a motion to suppress defendant's tape-recorded confession to the police as involuntary, (2) the trial court prejudicially erred in failing to instruct the jury that defendant's daughter was an accomplice whose testimony should be viewed with caution and required corroboration, (3) the trial court reversibly erred in instructing the jury on the consanguinity element of incest when it told the jury that a father-daughter relationship satisfied the consanguinity requirement, (4) there was insufficient evidence that defendant's prior conviction was for a serious or violent felony because lewd acts "on" a child are not the same as lewd acts "with or upon" a child and (5) the trial court prejudicially erred in denying defendant a jury trial on the issue of whether he had suffered the prior conviction. We conclude that the trial court should have given accomplice instructions, but the error in failing to do so was harmless. We reject the remainder of defendant's contentions and affirm the judgment.
In July 1995, defendant's daughter Vanessa was 16 years old. Vanessa already had one child, a daughter who was three months old. Defendant had not been married to Vanessa's mother, and Vanessa had had no contact with defendant prior to 1995. Vanessa went to live with defendant in late July 1995 after having an argument with her mother. A number of weeks 1 after her arrival at defendant's home, defendant asked Vanessa to orally copulate him. Vanessa complied with his request. The next day, defendant again had some kind of sexual contact with Vanessa. The day after that, defendant had sexual intercourse with Vanessa. Defendant told Vanessa not to tell his wife. He threatened to "disown" Vanessa if she told anyone. Defendant continued to have sexual intercourse with Vanessa several times a week for "months." Vanessa moved out in February 1996. On June 13, 1996, Vanessa gave birth to Alexis. Alexis was neither premature nor overdue. A DNA test proved that defendant is the biological father of Alexis.
Vanessa did not tell anyone about defendant's sexual relationship with her until 1997. In June 1997, she told her half-sister Lisa that defendant had "forced" her to have a sexual relationship with him. Vanessa told Lisa that Vanessa and defendant had sex "[e]very day or every other day" while Vanessa lived with defendant. Lisa urged Vanessa to report defendant's conduct to the police. The police were contacted by telephone on June 12, 1997. Vanessa was interviewed by San Jose police officer Paul Francois on June 18. She told Francois about the sexual relationship between her and defendant. At Francois's direction, Vanessa made a tape-recorded "pretext" telephone call to defendant.
During this conversation with Vanessa, defendant made numerous admissions. Vanessa asked defendant if he had told her the truth when he claimed to have gotten a vasectomy. Defendant said it was true and asked "why?" Vanessa said "[c]ause I think Alexis is yours." Defendant insisted that this "[c]ouldn't be." When Vanessa said "she can be yours," defendant replied Vanessa inquired "[w]hen?" Defendant gave this reply: He continued to insist that Alexis "couldn't be mine." Vanessa exclaimed "You're only fucking me and then you fucking, then I got pregnant." Defendant's reply was
They also had this tape-recorded interchange during this telephone conversation. When Vanessa told defendant that she intended to report "it," defendant told her "I guess you won't see me forever, then" and "[t]hey'll throw me in, they'll throw me in the can forever." Defendant asked her why she was "doing this" and Vanessa said "Because I'm mad." Defendant said "It sure didn't seem to stop you when you were doing it." Vanessa asked him "how come it went on for so long?" Defendant said "I have no idea." She said "I mean, shit, once I can understand but, fucking, for like I don't know how many months." Defendant's reply was
On June 24, Francois interviewed defendant. This entire interview was tape-recorded. Defendant did not appear to be under the influence of drugs or alcohol during the 9:30 a.m. interview. Defendant was advised of his constitutional rights, waived them and agreed to talk to Francois. Defendant told Francois that Vanessa had lived with him for about a year. He asserted that "Emir" was Alexis's father. At first, defendant denied having any kind of sexual relationship with Vanessa. Francois asked defendant if he would be willing to submit to a DNA test to determine whether he was the father of Alexis. Defendant agreed to do so.
Francois informed defendant "I already know what happened." Defendant continued to deny that he had had a sexual relationship with Vanessa. He also denied that Vanessa had confronted him with these allegations.
In response to defendant's repeated denials, Francois revealed that he had tape-recorded Vanessa's telephone conversation with defendant during which defendant had admitted having sex with Vanessa. Defendant immediately admitted having sex with Vanessa. He insisted that Vanessa had initiated the sexual relationship by repeatedly looking at him "in the wrong way" and then demanding sex. "[S]he's the one that came on to me first." Defendant said that he complied because he was drunk. He described in some detail the events leading up to the first time he engaged in sexual intercourse with Vanessa. Defendant also admitted that he had continued to have sex with Vanessa allegedly because she continued to demand sex and threaten that "she was gonna say something" if he did not comply with her demands. He admitted engaging in oral copulation and digital penetration with Vanessa. He maintained that he was "drunk" on every occasion. When Francois asked defendant "[h]ow do you know you're sterile," defendant claimed that he assumed he was sterile because he had used a lot of drugs, his former wife had had difficulty becoming pregnant and he had not impregnated a girl with whom he had had a two-week relationship.
Francois inquired about the length of defendant's sexual relationship with Vanessa. Defendant told Francois that he had had sex with Vanessa "four or five times" over a period of four to six months. However, he also said "[b]ut every time she wanted it she'd come and tell me." Defendant admitted that there was a "[g]ood possibility" that he had had sex with Vanessa more than four or five times and "[p]robably once a week." At the end of the interview, Francois asked defendant "[w]hat, if anything, did I say that caused you to tell me what had happened between you and Vanessa?" Defendant replied "[j]ust being honest."
Defendant was charged by information with 31 counts of incest (Pen.Code, § 285) and one misdemeanor count of failing to register as a sex offender (Pen.Code, § 290, subd. (g)), and it was also alleged that he had suffered a prior conviction within the meaning of Penal Code sections 667, subdivisions (b) to (i) and 1170.12. Each of the incest counts charged defendant with committing incest with his daughter Vanessa during successive one-week periods...
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