Opinion
C079482
02-08-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JAMES COLLISON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12F03804)
Defendant Michael James Collison was convicted of two counts of lewd and lascivious conduct with a child under the age of 14. He now appeals claiming (1) the trial court prejudicially erred by admitting evidence of a prior misdemeanor conviction for annoying or molesting a child, (2) there is insufficient evidence of a present intent to arouse to support the current convictions, and (3) the trial court abused its discretion in imposing the upper term at sentencing. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Jonathan G. and Justin G. met defendant in about 2003, when Jonathan was about nine years old and Justin was about 11 years old. Defendant was a family friend and the boys thought of him like an uncle. At the time, Jonathan and Justin lived with their mother and their two other brothers; their father did not live in the home due to section eight housing rules. The family was economically disadvantaged. Defendant invited the family or the sons to his apartment to watch television, to play video games, to go swimming, and he also would take them out to eat, to the arcade, and to car races. Defendant was also frequently invited to family gatherings for birthdays and holidays. The family remained close with defendant until he moved to Las Vegas in 2007, after which the visits were less frequent.
Jonathan recounted that when they were children and rode in the back seat of defendant's car, defendant would regularly check to see if they were all right by placing his hand on their leg and sliding it up to the top of their thigh, which made Jonathan feel uncomfortable. When this began, Jonathan was eight or nine years old, and it did not end until defendant moved. Additionally, every time the boys were at defendant's house watching television or eating pizza, defendant would put his hand on Jonathan's shoulder, slide his hand down Jonathan's back, and pat his buttocks with prolonged contact. Jonathan did not reveal this touching to law enforcement until 2012 because that is when he realized it was wrong.
Justin frequently visited with defendant; initially he was accompanied by his family or brothers, and eventually he visited alone. Justin remembered being in fifth grade the first time defendant touched him inappropriately. Initially, defendant touched Justin's buttocks over the top of Justin's clothes when Justin was isolated from the others. Defendant also touched Justin's inner thigh while driving in defendant's car. When it started, defendant would ask Justin for permission to touch him, and Justin would usually give permission until he grew older. When Justin was a bit older—in sixth or seventh grade—defendant began to touch Justin on the buttocks underneath his clothes. Defendant would touch Justin's behind in defendant's apartment, in defendant's car, at Justin's home, and at the pool. On one occasion, after Justin had gone swimming at defendant's apartment, defendant touched Justin on the penis under Justin's swim shorts while Justin sat on the couch. Sometimes when defendant touched Justin, Justin heard defendant make "sexual sounds." Justin felt uncomfortable and violated when defendant touched him, and as he grew older he felt ashamed, guilty, and more uncomfortable. Justin had divulged to friends in his freshman year of high school that he had been sexually molested as a child. He did not tell his mother until 2012, at which time he also informed law enforcement.
In the course of a pretext phone call conducted during law enforcement's investigation into the molestation allegations in 2012, Justin informed defendant he had joined a gym and was working on his butt. Defendant responded that he had "always liked it [(Justin's butt)]" and that he thought Justin knew that. When Justin later commented that defendant "used to always touch it," defendant did not deny that he had but changed the conversation to ask why Justin had called.
Evidence was presented at trial that defendant had suffered a conviction in 1991 for molesting or annoying a child. (Pen. Code, § 647.6, subd. (a).) Additionally, one of the victims from the incident that resulted in that conviction testified he met defendant through another friend and that as a 13- to 14-year-old boy he visited defendant many times at defendant's apartment. Defendant would take him out to eat or to ride on his motorcycle. In December 1990, several boys went to defendant's apartment for a campout. Defendant provided the boys with alcohol and cigarettes, then he played pornography on the television, and the boys began to disrobe and to masturbate. Defendant provided lubricant and coaxed the boys, physically assisting a couple of the boys while they masturbated. One of the boys recorded the events on defendant's video camera.
Defendant was charged with four counts of lewd and lascivious conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a).) Counts one and two alleged defendant touched Justin's buttocks on separate occasions between June 1, 2001, and November 28, 2005. Counts three and four alleged defendant touched Jonathan's buttocks on separate occasions between January 6, 2002, and December 31, 2006. The jury found defendant guilty of both counts with respect to Justin (counts one and two), but deadlocked on the counts related to Jonathan (counts three and four). The trial court declared a mistrial as to counts three and four, which were subsequently dismissed in the interest of justice. The trial court sentenced defendant to the upper term of eight years for count one, and a consecutive term of two years (one-third of the middle term) for count two, for a cumulative state prison sentence of 10 years.
DISCUSSION
Defendant contends the trial court prejudicially erred when it admitted his prior conviction for annoying or molesting a child, there is insufficient evidence to support his convictions, and the trial court abused its sentencing discretion when it imposed the upper term. We are not persuaded by any of these claims.
1.0 Admission of Prior Conviction
Defendant contends the trial court prejudicially erred in admitting evidence of his prior conviction for annoying or molesting a child because the 1991 conviction was remote in time, based on dissimilar facts and circumstances, and was unduly prejudicial. We disagree.
Generally, evidence of uncharged misconduct is not admissible to prove propensity to commit the charged conduct. (Evid. Code, § 1101, subd. (a).) However, evidence that a person committed other acts can be admissible, when relevant to prove some fact—i.e., motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident—other than his or her disposition to commit such an act. (§ 1101, subd. (b).) Also, as relevant here, "[i]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." (§ 1108, subd. (a).)
Undesignated statutory references are to the Evidence Code. --------
Thus, even if evidence is admissible under section 1108, the trial court must " 'exclude [it] 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' " (§ 352). In conducting this weighing process, the trial court considers the " 'unique facts and issues of each case.' " (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1116.) Rather than admit or exclude every sex offense, the trial court must consider factors such as the " 'nature, relevance, and possible remoteness [of the uncharged act], the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses . . . .' " (Id. at pp. 1116-1117.)
We review a trial court's decision to admit evidence of a prior sexual offense under sections 352 and 1108 for an abuse of discretion. (People v. Avila (2014) 59 Cal.4th 496, 515.) A discretionary decision will not be disturbed on appeal, absent " 'a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Here, defendant had a 1991 misdemeanor conviction for annoying or molesting a child (Pen. Code, § 647.6) based on police finding him in his apartment with four male juveniles (13 to 14 years old) in various states of undress, whom he had provided with alcohol, shown pornography, and filmed, and who had been engaged in various types of sexual touching. Defendant moved in limine to exclude evidence of this prior conviction pursuant to Evidence Code section 352, arguing the conviction was remote in time, highly prejudicial, lacked similarity to the charged crimes, and would confuse the jury.
The trial court denied the motion, finding that though there was no allegation pornography or masturbation were involved here, those differences were not dispositive. The trial court also found the ages of the victims in each case—13 or 14 years old in the prior case, and a range of eight to 13 years old here—were not substantially different. Additionally, while the trial court acknowledged all prior sex offense convictions are to some degree inflammatory, there was not "substantial sexual conduct" in either case in that both involved "at most touching, fondling, rubbing." Nor did the trial court believe the jury would be confused by introduction of the evidence relating to the prior conviction, that it would cause an undue consumption of time, or that the 10- or 11-year gap between the conviction and the charged conduct was sufficient to make the prior conviction so remote as to be inadmissible given the high probative value of the prior conviction to show intent. Thus, the trial court found the probative value was not outweighed by the potential prejudicial value of the evidence.
Though the conduct in the 1990 incident was more overtly sexual in that it involved a display of pornography and group masturbation, neither that incident nor the current incident involved any sexual penetration. And while the allegations in this case were premised only on the touching of Justin's and Jonathan's buttocks, Justin also testified that defendant had touched his penis. Ultimately, both the case that resulted in the 1991 conviction and the current case involved, as the trial court found, at most, fondling or touching of disadvantaged juvenile boys with whom defendant had developed friendly relationships by providing them with opportunities for fun they did not otherwise have. Thus, the trial court did not err in concluding the uncharged conduct was not sufficiently dissimilar from the charged conduct to render the prior conduct inadmissible under section 352.
Nor can we find the remoteness in time of the prior conviction is sufficient to render the trial court's admission of the evidence an abuse of discretion. (See People v. Robertson (2012) 208 Cal.App.4th 965, 992 [several cases have affirmed admission of evidence of prior sexual crimes that occurred decades prior to the current crime]; People v. Pierce (2002) 104 Cal.App.4th 893, 900 [where crimes are substantially similar, remoteness may be mitigated]; People v. Branch (2001) 91 Cal.App.4th 274, 284 ["No specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible."].)
Additionally, that defendant did previously engage in sexual behavior with juvenile males on a prior occasion was highly probative in the instant case, where the issue of whether defendant had a sexual intent when touching Justin and Jonathan was so directly in dispute. Therefore, though we acknowledge, as the trial court also did, that evidence of defendant's prior conviction did present some level of prejudice, as relevant evidence generally does, we cannot find the trial court erred in concluding that the probative value of such evidence was not substantially outweighed by the danger of undue prejudice resulting from admission of the evidence.
2.0 Sufficiency of the Evidence
Defendant contends both his convictions for committing lewd and lascivious acts with a child under the age of 14 must be reversed because there is insufficient evidence that defendant harbored a present intent to arouse the sexual desires of himself or the child at the time of the touching. We disagree.
In considering a claim challenging the sufficiency of the evidence to support a conviction, " ' "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ' " (People v. McCurdy (2014) 59 Cal.4th 1063, 1104.) We presume the existence of facts that can be reasonably deduced from the evidence in support of the judgment. (Ibid.) However, "a jury may not rely upon unreasonable inferences, and . . . '[a]n inference is not reasonable if it is based only on speculation.' " (People v. Hughes (2002) 27 Cal.4th 287, 365.) In this review, we do not resolve credibility issues or conflicts in the evidence de novo. (People v. Jackson (2014) 58 Cal.4th 724, 749.) Reversal is not warranted unless there is no hypothesis on which there exists substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Penal Code section 288, subdivision (a) provides, in pertinent part, that "any person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . ." The statute is violated by any touching of an underage child if it is accompanied by the intent to arouse or gratify the sexual desires of the perpetrator or the child. (People v. Lopez (1998) 19 Cal.4th 282, 289.) The perpetrator need not contact the victim's bare skin and the touching can involve any part of the child's body. (People v. Martinez (1995) 11 Cal.4th 434, 444.) A guilty intent, even if accompanied by an act that has an outward appearance of innocence, may suffice to support a conviction. (Id. at p. 442.) To determine whether a defendant acted with sexual intent, all the circumstances are examined, including the nature and manner of the touching, the defendant's extrajudicial statements, the relationship of the parties, and any coercion, bribery, or deceit used to obtain the victim's cooperation or to avoid detection. (In re R.C. (2011) 196 Cal.App.4th 741, 750.)
Here, Justin testified that defendant frequently would touch Justin's buttocks both over and under Justin's clothing, that he had also touched Justin's penis, and that sometimes when he touched Justin he made "sexual sounds." Defendant provided Justin with opportunities for fun he did not have at home and was treated as an adopted uncle. Additionally, in the pretext telephone call, defendant admitted to having liked Justin's butt when Justin was a boy. There was also ample evidence that defendant had previously engaged in sexual behavior with young boys based on the testimony regarding the 1990 incident that resulted in defendant's prior conviction. This evidence, taken together, is substantial evidence that defendant touched Justin "with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child . . . ." (Pen. Code, § 288, subd. (a).)
3.0 Imposition of Upper Term
Defendant contends that because this case "does not involve any substantial sexual conduct," the trial court abused its discretion in imposing the aggravated sentence on defendant for count one. We disagree.
Sentencing decisions are reviewed for abuse of discretion. (People v. Jones (2009) 178 Cal.App.4th 853, 860.) "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
When "selecting one of the three authorized terms of imprisonment referred to in section 1170[, subdivision] (b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. . . ." (Cal. Rules of Court, rule 4.420(b).) Any single aggravating factor is sufficient to impose an upper term sentence. (People v. Osband (1996) 13 Cal.4th 622, 728.)
Here, in imposing the upper term, the trial court found the following factors in aggravation. First, the crimes were carried out in a manner indicating planning and sophistication in that defendant carefully and consciously groomed the boys and avoided detection. (Cal. Rules of Court, rule 4.421(a)(8).) Second, defendant took advantage of a position of trust or confidence as a trusted family friend who was permitted to spend significant unsupervised time with the boys during which he committed his crimes. (Id., rule 4.421(a)(11).) The trial court also found there was a circumstance in mitigation in that defendant did satisfactorily complete probation previously. (Id., rule 4.423(b)(6).) The trial court declined to view the gap in time between defendant's prior conviction and the charged conduct as a factor in mitigation, concluding that because defendant engaged in the conduct after serving a year in jail tended to show that defendant had not learned his lesson. The trial court also expressly stated that though there was no physical penetration involved here, the molestation was "life altering" and had "huge, devastating consequences" for the victims.
Thus, the trial court properly weighed the factors in aggravation and the factors in mitigation, and concluded that an upper term was warranted. We cannot find that in doing so the trial court acted unreasonably given its finding of two aggravating factors, neither of which defendant challenges on appeal. Accordingly, we find no abuse of discretion.
DISPOSITION
The judgment is affirmed.
BUTZ, Acting P. J. We concur: MAURO, J. DUARTE, J.