Opinion
D039825.
7-15-2003
THE PEOPLE, Plaintiff and Respondent, v. TED ALAN BROCKWAY, Defendant and Appellant.
Ted Alan Brockway appeals his convictions of 16 counts of molesting James C. (James) (Pen. Code, § 288, subd. (a)), two counts of exhibiting pornography to a minor with the intent of seducing the minor (James) ( § 288.2, subd. (a)), one count of possessing child pornography (§ 311.11, subd. (a)), and two counts of felony child abuse (Joey C. (Joey) and Cody Z. (Cody)) ( § 273a, subd. (a)).
All statutory references are to the Penal Code unless otherwise indicated.
The court dismissed a count of possessing child pornography with intent to distribute ( § 311.1, subd. (a)) and distributing pornographic material ( § 311.2, subd. (d)). The jury acquitted Brockway on possessing child pornography on his computer.
On appeal, Brockway contends his convictions must be reversed because the trial court: erroneously admitted unduly inflammatory testimony describing pornographic material found at his home and office; improperly allowed a probation officer to testify to statements he made to her about the underlying conduct in a prior case; denied him due process by giving CALJIC No. 2.20.1 (evaluation of a childs testimony); and improperly imposed sentences for both felony child abuse counts in violation of section 654s proscription against multiple punishment. Brockway also contends his counsel was ineffective in failing to object to the probation officers testimony; the cumulative impact of the errors denied him a fair trial; the trial court minutes improperly reflect a conviction rather than an acquittal of count 22 ( § 311.11, subd. (a)); and the abstract of judgment should be amended to show the convictions of count 23 and count 24 under section 273a, subdivision (a). We agree with Brockways last contentions; the court minutes should be corrected to reflect the jurys acquittal on count 22 and the abstract of judgment should be amended to accurately reflect the convictions. In all other respects, we affirm the judgment.
FACTS
Molestation of James C. and Exhibiting Pornography to Minor and Possessing Child Pornography
Brockway was a long-time friend of Jamess mother and babysat both James (born in June 1992) and Jamess older brother, Joey (born in June 1985). About once a month from the time James was three or four years old, he would spend a weekend night at Brockways home. Sometimes Joey and/or Joeys friend, Cody, would also spend the night with Brockway. They would go to movies or watch videos, eat dinner, and go to other places such as sporting events and Knotts Berry Farm.
James, who was nine years old and in the fourth grade at the time of the trial, testified that while he was in the first through third grades, during the overnight visits, Brockway would require James to orally and then manually stimulate Brockways penis to ejaculation and would orally and manually touch Jamess penis. This sexual conduct occurred every time James spent the night at Brockways house. It occurred even when Joey and Cody were also there because Joey and Cody would be sleeping in the living room while James and Brockway were in Brockways bedroom.
Sometimes Brockway would make James watch sexually explicit gay videos in the bedroom. Brockway also showed James photographs of naked men on a computer located at Brockways business.
Felony Child Abuse — Child Endangerment
In July or August 2000, Brockway, Joey, and Cody went camping. Joey and Cody were 15 years old. Brockway allowed Joey and Cody to drink beer. The boys each had four or five beers and became so drunk they vomited. The boys shot BB guns at beer bottles placed on each others heads, laps, and between their butt cheeks. Brockway videotaped this.
Molestation of Derrick S. — Possession of Video Depicting a Person under Age 18 Engaged in Sexual Conduct
Brockway videotaped himself fondling the penis of Derrick S. (born October 1979) while Derrick S. was sleeping.
Prior Molestations of Chuck S. and Charles F.
In 1986, Brockway pleaded guilty to orally copulating a minor (§ 288a, subd. (b)(1)) and was granted probation. Brockways probation officer testified during her interview with Brockway in preparation for writing a sentencing report Brockway admitted having sexual contact with two underage males, a 17-year-old who had been living in Brockways home for a number of years and the 17-year-olds friend who was 16 years old at the time. The probation officer remembered interviewing Brockway and thought he looked vaguely familiar.
At trial, Charles F. (the 16-year-old victim) testified he had been friends with Chuck S. (the 17-year-old victim), both of whom were about the same age and had attended the same school. Chuck S. lived with Brockway. Charles F. testified he often visited the Brockway home and when Chuck S. was not present, Brockway would put his hand on Charles F.s penis. One night when Charles F. spent the night at Brockways house, Chuck S. initiated a conversation with Brockway telling Brockway that Charles F. wanted a "blow job." Brockway orally copulated Charles F. that night and thereafter touched Charles F.s penis on one other occasion.
Charles F. believed his friend Chuck S. was Brockways son. He was not.
Brockway in his testimony admitted having a sexual relationship with Chuck S. and orally copulating Charles F. He pleaded guilty to orally copulating a minor and served a term of probation.
Defense
Brockway testified James never came to his house alone while James was in first or second grade. James came alone to his house only between August 2000 and February 2001. Brockway detailed what occurred during each weekend visit. He denied ever molesting James. He denied ever showing James any pornography.
Brockway testified that during the camping trip with Joey and Cody each boy had no more than two beers and did not appear to be drunk. He testified the boys vomited on purpose because they thought it was funny. Brockway did not feel the shooting of the beer bottles was dangerous because the BB guns were low-powered, both boys were excellent shots and they were shooting from a distance where Brockway thought there was little chance they could miss the bottles.
Brockway testified the sexual relationship with Chuck S. was voluntary and that it was a mistake to have orally copulated Charles F.
He testified that the videotape of Derrick S. was made about the time Derrick was 18 years old and that Derrick was not actually asleep during the molestation part of the video.
DISCUSSION
I
Admission of Testimony About Pornographic Materials
Brockway contends the court erred by admitting inflammatory testimony regarding pornographic materials that were not later admitted into evidence. Brockways contention relates to police detective Vince Murillos testimony about items seized pursuant to a search warrant: (1) photos found near Brockways computer of nude men engaged in sexual activity; (2) gay mens magazines found in Brockways home; and (3) gay mens magazines seized from his business. Brockway points out that there was no claim that these materials were illegal to possess and the court eventually ruled that none of these materials would be admitted into evidence.
Prior to trial, during the hearing on the in limine motions, defense counsel objected to admission of "stories" on Brockways computer of sexual conduct between adults and boys. The court ruled the stories inadmissible. The court stated it wanted to limit the jurys exposure to pornographic materials and believed the jury could be "spared" from seeing the material if the content was adequately described by witnesses. During the detectives testimony, the defense objected to the admission of any "legal pornography" and the playing of any of the videotapes. Later, when deciding whether to admit the various exhibits containing pornographic material, the court ruled the pornographic photographs found near Brockways computer and the magazines would not be admitted into evidence and sent to the jury.
"Only relevant evidence is admissible (Evid. Code, § 350), and the court has discretion to exclude relevant evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352.)" (Robinson v. Grossman (1997) 57 Cal.App.4th 634, 647.)
Evidence Code section 352 " is designed to avoid . . . not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. " [Citations.] Rather, the statute uses the word [prejudice] in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors. [Citation.]" (People v. Zapien (1993) 4 Cal.4th 929, 958, 846 P.2d 704.) "In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1009.)
A trial court is vested with wide discretion in determining the admissibility of evidence. Its exercise of discretion under Evidence Code section 352 will not be disturbed on appeal absent a clear abuse, i.e., unless the prejudicial effect of the evidence clearly outweighs its probative value. (People v. Wilson (1992) 3 Cal.4th 926, 938, 838 P.2d 1212; People v. Fields (1998) 61 Cal.App.4th 1063, 1071.)
Initially, we note that Brockway did not object to the detectives testimony about the pornographic materials, but only to the admission into evidence of the pornographic materials themselves. He thus waived this issue for appeal. (See Evid. Code, § 353; People v. Collie (1981) 30 Cal.3d 43, 49, 177 Cal. Rptr. 458, 634 P.2d 534.)
Second, the evidence had some relevance since Brockway was charged with displaying pornography to a minor with the intent of seducing the minor. It was not unduly inflammatory, particularly because it was not shown to the jury and in light of the other pornography possessed by Brockway including child pornography.
Moreover, even if the court erred in allowing the testimony, the error was clearly harmless. The testimony was not extensive or detailed. There was other abundant evidence indicating that Brockway possessed pornography. Under these circumstances, there is no reasonable probability the verdict would have been different had the detective not testified about the magazines and computer photographs.
II
Testimony of Probation Officer
Brockway contends the court erred in allowing the probation officer to testify to the underlying conduct in the prior molestation case because such testimony violated his privilege against self-incrimination and constituted hearsay.
A. Violation of Right Against Self-Incrimination
Brockway argues that his statements to the probation officer for purposes of sentencing in the prior case could not be used as substantive proof of guilt without violating his privilege against self-incrimination. (See People v. Macias (1997) 16 Cal.4th 739, 751, 753, 756-757, 941 P.2d 838 [use immunity for statements made in contemplation of court proceedings]; People v. Coleman (1975) 13 Cal.3d 867, 878, 889, 120 Cal. Rptr. 384, 533 P.2d 1024.)
Initially, we note that Brockway did not object to the probation officers testimony on this basis and therefore waived this issue on appeal. (Evid. Code, § 353, subd. (a); People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13, 857 P.2d 1099; People v. Kelly (1992) 1 Cal.4th 495, 519, 822 P.2d 385.)
Second, even if the court erred in admitting the testimony, the error was clearly harmless since Brockway pleaded guilty to oral copulation of a minor, and the victim Charles F. testified to the oral copulation as well as to additional sexual conduct. Under these circumstances, there is not the remotest possibility the jury would have acquitted Brockway of the charges had the probation officer not testified to the underlying conduct and to Brockways admission to having a sexual relationship with both boys.
B. Hearsay
Brockway contends the probation officers testimony constituted inadmissible hearsay because she was reading from the report rather than testifying based on her recollection.
Again, Brockway did not object on this ground. An objection was particularly necessary here since the determination whether a witness is testifying based on an independent recollection or is merely reading a written report largely depends on first hand observation of the witness and an assessment of the witnesss demeanor. On appeal, we have only the cold record. This record includes the probation officers testimony that she remembered interviewing Brockway face to face and that Brockway looked vaguely familiar to her. Based on the record before us, we cannot say that the probation officer was merely a reader of the report rather than testifying from her independent recollection as, perhaps, refreshed by the report.
The fact Brockway looked only vaguely familiar to the probation officer is unsurprising because this trial occurred in 2002 and Brockways prior conviction was in 1986.
C. Ineffective Assistance of Counsel
Brockway contends his counsel was ineffective for failing to object to the probation officers testimony.
To establish denial of the right to effective assistance of counsel, the "defendant must show (1) that trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) that it is reasonably probable that a more favorable determination would have resulted in the absence of counsels failings." (People v. Taylor (1990) 52 Cal.3d 719, 731, 276 Cal. Rptr. 391, 801 P.2d 1142; People v. Ochoa (1998) 19 Cal.4th 353, 445, 966 P.2d 442.) " Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight. . . . A reviewing court will not second-guess trial counsels reasonable tactical decisions. " (People v. Riel (2000) 22 Cal.4th 1153, 1185, 998 P.2d 969.) On appeal, " if the record sheds no light on why counsel acted or failed to act in the manner challenged, "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," [citation], the contention [that counsel provided ineffective assistance] must be rejected. " (People v. Mitcham (1992) 1 Cal.4th 1027, 1058, 824 P.2d 1277; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268, 933 P.2d 1134.)
Here, defense counsel may have reasonably decided not to object to the probation officers testimony because the defense had already decided that Brockway would be testifying and therefore the substance of the probation officers testimony would either be presented through Brockway or, if Brockway denied the involvement, by calling the probation officer to impeach his testimony. (See People v. Macias, supra, 16 Cal.4th at pp. 756-757.) Defense counsel also reasonably could have decided not to object on hearsay grounds based on an assessment that the probation officer was not merely reading the report. Finally, as noted above, we have concluded that any errors in admitting the probation officers testimony were harmless.
III
CALJIC No. 2.20.1
Brockway contends he was deprived of due process by giving CALJIC No. 2.20.1, particularly in combination with CALJIC No. 10.60. He argues CALJIC No. 2.20.1 suggested that two key factors in assessing credibility—ability to remember and to communicate—could be disregarded as to Jamess testimony and thus improperly told the jury to give special deference to Jamess testimony.
CALJIC No. 2.20.1, as given by the court, stated:
"In evaluating the testimony of a child ten years of age or younger you should consider all of the factors surrounding the childs testimony, including the age of the child and any evidence regarding the childs level of cognitive development. A child, because of age and level of cognitive development, may perform differently than an adult as a witness, but that does not mean that a child is any more or less believable than an adult. You should not discount or distrust the testimony of a child solely because he or she is a child. " Cognitive means the childs ability to perceive, to understand, to remember, and to communicate any matter about which the child has knowledge."
CALJIC No. 10.60, as given by the court, stated:
"It is not essential to a finding of guilt on a charge of lewd act upon a child that the testimony of the witness with whom sexual relations is alleged to have been committed be corroborated by other evidence."
Courts have repeatedly approved CALJIC No. 2.20.1 as a proper instruction. (See People v. Jones (1992) 10 Cal.App.4th 1566, 1573-1574; People v. Harlan (1990) 222 Cal. App. 3d 439, 455, 271 Cal. Rptr. 653; People v. Gilbert (1992) 5 Cal.App.4th 1372, 1393.)
Nonetheless, Brockway argues that CALJIC No. 2.20.1 instructs the jury that key factors in assessing credibility that are contained in CALJIC No. 2.20 and applied to every other witness—the witnesss ability to remember and communicate—"could be disregarded when it evaluated James[s] testimony." CALJIC No. 2.20.1 tells the jury that [a] child, because of age and level of cognitive development, may perform differently than an adult as a witness, but that does not mean that a child is any more or less believable than an adult, and then defines "cognitive" to "mean[] the childs ability to perceive, to understand, to remember, and to communicate any matter about which the child has knowledge." (CALJIC No. 2.20.1, italics added.) Brockway concludes the instruction thus improperly gives special deference to a childs testimony. Brockway argues CALJIC No. 2.20.1 was prejudicial especially in light of CALJIC No. 10.60 which allowed the jury to return a jury verdict based solely on Jamess testimony.
We disagree. Courts have rejected Brockways argument that the word "perform" as used in the instruction conveys to the jury that it should apply a lower standard when assessing a childs credibility. These courts have explained "the use of the word perform in the second sentence of CALJIC No. 2.20.1 implies nonverbal action, and . . . merely advises the jury that due to the age and level of cognitive development, a child may act differently on the witness stand than an adult." (People v. Jones, supra, 10 Cal.App.4th at pp. 1572-1573; People v. Harlan, supra, 222 Cal. App. 3d at p. 455.) In Jones, the court further explained "that the use of the word perform in the second sentence . . . does not preclude a jury from considering how the child witnesss testimony is spoken. The act of speaking, including voice sound, articulation, inflection, intonation and other speech characteristics, is nonverbal action as opposed to the content of the speech, i.e., the word message conveyed by the act of speaking." (People v. Jones, supra, at p. 1573.) The court found it "difficult . . . to fathom how jurors could understand that perform as used in the second sentence of CALJIC No. 2.20.1 advises them to consider the words of a child witness to ring true(r) than the words of an adult witness." (Ibid.) Rather, as stated by the court in People v. Harlan, supra, at page 455, the second sentence with its reference to performance, " refers to one of many factors to be applied by a jury in determining a [child] witnesss credibility, namely, the demeanor and manner of the witness while testifying. " (People v. Jones, supra, at pp. 1573-1574.)
We agree with the reasoning in these cases. The instruction does not unduly inflate the testimony of a childs testimony or tell the jury to ignore factors otherwise relevant to assessing credibility. (See People v. Gilbert, supra, 5 Cal.App.4th at p. 1393.) The first sentence of CALJIC No. 2.20.1 specifically tells the jury that among other facts, the jury should consider the childs cognitive ability. The instruction later provides a definition of "cognitive" which includes the abilities to perceive and to communicate. Thus, contrary to Brockways assertion, the instruction does not tell the jury to ignore a childs ability to remember and to communicate when assessing a child witnesss testimony; it rather informs the jury to consider these factors. Finally, we note that when reviewing the propriety of an instruction, it is necessary to view the instruction as a whole and in context of the other instructions. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248, 954 P.2d 475; People v. Castillo (1997) 16 Cal.4th 1009, 1016, 945 P.2d 1197.) Here, the jury was instructed with factors relevant to assessing credibility, including the abilities to remember and communicate in CALJIC No. 2.20. Nothing in CALJIC No. 2.20 suggested these factors were not relevant to assessing a child witnesss testimony. Nor is there anything in CALJIC No. 2.20.1 telling the jury to ignore the factors listed in CALJIC No. 2.20. The essence and purpose of CALJIC No. 2.20.1 is to inform the jury that a childs testimony should not be rejected merely on the basis the witness is a child. It does not either alone or in combination with CALJIC No. 10.60 tell the jury to give special deference to a childs testimony.
No reversal is merited on this ground.
IV
Cumulative Impact
Brockway contends the cumulative impact of the evidentiary and instructional errors deprived him of his constitutional due process right to a fair trial. There was no cumulative error. The only error, an error waived by the failure to object, was allowing the probation officer to testify in the prosecutions case-in-chief about Brockways admissions and the underlying facts of his prior conviction. As we explained in part II,ante , this error was clearly harmless.
V
Multiple Punishment
Brockway contends section 654 prohibits imposition of prison terms for both of the felony child endangerment convictions.
"Section 654 precludes multiple punishments for a single act or indivisible course of conduct." (People v. Hester (2000) 22 Cal.4th 290, 294, 992 P.2d 569; People v. Hicks (1993) 6 Cal.4th 784, 789, 863 P.2d 714.) Whether a course of conduct is indivisible depends on the intent and objective of the actor. (People v. Norrell (1996) 13 Cal.4th 1, 6, 913 P.2d 458; People v. Evers (1992) 10 Cal.App.4th 588, 602.) "If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (People v. Perez (1979) 23 Cal.3d 545, 551, 153 Cal. Rptr. 40, 591 P.2d 63.) Concurrent sentences for crimes based on one act or indivisible transaction constitutes multiple punishment. (People v. Deloza (1998) 18 Cal.4th 585, 592, 957 P.2d 945.) However, even if the defendant entertained but a single principle objective during an indivisible course of conduct, he may be punished separately for multiple convictions if he committed crimes of violence against different victims. (People v. Champion (1995) 9 Cal.4th 879, 891 P.2d 93; People v. Anderson (1990) 221 Cal. App. 3d 331, 338, 270 Cal. Rptr. 516.) " A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person. " (People v. Hall (2000) 83 Cal.App.4th 1084, 1088.) This exception applies when the offense as defined by the statute proscribes an act of violence, e.g., requires an act "committed with the intent to harm or by means likely to cause harm to a person." (Id. at p. 1089.)
Brockway was convicted of violating section 273a, subdivision (a) which states:
"Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years." (Italics added.)
Brockway argues that since his conviction was based on child endangerment rather than physical harm to Joey and Cody, these convictions did not involve acts of violence meriting separate punishment for each victim. We disagree. By its terms, section 273a, subdivision (a) requires "circumstances or conditions likely to produce great bodily harm or death." The imposition of multiple punishment was proper here.
VI
Correction of Minutes and the Abstract of Judgment
As Brockway points out, and the Attorney General concedes, the trial court minutes fail to reflect that the jury acquitted him of count 22. The court minutes should be corrected to reflect the acquittal. Additionally, the abstract of judgment should be amended to show convictions of count 23 and count 24 under section 273a, subdivision (a).
DISPOSITION
The trial court is directed to correct the court minutes of February 14, 2002, to reflect the jurys acquittal of Brockway on count 22. The trial court is further directed to prepare an amended abstract of judgment reflecting the convictions of count 23 and count 24 under section 273a, subdivision (a), and to forward a certified copy of the amended abstract to the Department of Corrections. In all other respects the judgment is affirmed.
WE CONCUR: MCDONALD, Acting P. J., and AARON, J.