Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno CountySuper. Ct. No. F04904473-6, Gary D. Hoff, Judge.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stan Cross and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.
VARTABEDIAN, Acting P. J.
Defendant Terry Paul Martin was convicted of one count of a lewd and lascivious act upon E, a child under the age of 14 years. In addition, the jury found true that he suffered a prior serious felony conviction within the meaning of the Three Strikes law (Pen. Code, § 667, subd. (b) ) and a prior felony conviction within the meaning of the One Strike law (§ 667.61, subds. (c)(7) and (d)(1)). Defendant appeals, claiming the trial court erred in excluding evidence the victim had made a false accusation against her father, and the court erred in admitting evidence of prior bad acts pursuant to Evidence Code sections 1108 and 1101. In addition, defendant raises multiple challenges relating to his prior conviction, which arose in the state of Hawaii. We will affirm, except to reverse and remand on the allegations of a qualifying prior conviction.
All future code references are to the Penal Code unless otherwise noted.
Section 667.61 has been rewritten. We refer here to the version in effect in 2004, the time defendant committed the current offense.
FACTS
Danielle S. took her two daughters, E being one of them, to Gloria M.’s home for Gloria to baby-sit them. Gloria is defendant’s mother, Danielle’s grandmother, and E’s great-grandmother. In the spring of 2003, defendant moved in with Gloria. Danielle knew that defendant had been in prison for the prior 10 years, but she was not aware of the nature of his conviction.
In February 2004, E complained to Danielle about a rash she had sustained. This caused Danielle to ask E if she had ever been touched in her private area. E said that defendant had touched her while they were in the garage of Gloria’s home during a birthday party at the home. E told Danielle that defendant called her into the garage to show her something. He placed her on the workbench, pulled down her panties, got his fingers wet, and touched her private area. This upset E, who was four years old at the time of the touching. Upon being informed of this touching, Danielle called the police.
Fresno police officer Belynda Anaya responded to investigate. Danielle told her that E had complained of a rash and Danielle saw redness in E’s private area. Anaya interviewed E by herself. E told Anaya that defendant called her into the garage, picked her up and put her on his lap. E then licked her fingers and pointed to her pelvic area. E said defendant licked his fingers and then put them inside of her. E said it happened a lot of times. When asked what a lot of times were, E said one or two times is a lot. E told Anaya that this also happened in the backyard of Gloria’s house when E and defendant were playing yard sale.
Defendant was found not guilty of a second count of a lewd and lascivious act upon E.
E was six years old when she testified at trial. E testified that she did not lie when she talked to the “police lady.” E said that defendant touched her and she told the police where he touched her. E was reluctant on the witness stand to show or say where defendant touched her, but when asked to circle where she was touched on a picture of a female, she circled the vaginal area. E said that defendant touched her at Gloria’s home, in the garage. He touched her inside of her clothing and he put his hand inside her private part. E testified that defendant touched her one time. On cross-examination, she testified that the touching did not occur at the birthday party.
Defendant’s sister, D, was born in 1954. When she was about 13 years old, defendant tackled her and pushed her to the ground. He put a hose in her mouth and turned the water on. D tried to get away. Defendant put his hands on her breasts, legs, and vaginal area.
On a second occasion, defendant pushed D down. He unzipped his pants and said he was going to put his penis in her mouth. D struggled and defendant was unable to put his penis in her mouth. D did not tell her parents of these incidents because of their religious beliefs and the trouble it would cause for the family with the church.
D tried to reconcile with defendant in 2003, when he moved back in town to Gloria’s home. D told defendant that they needed to face the unnatural affections he showed toward her. Defendant told D that he had these affections towards her because she rolled up her skirts when she was a teenager. He told her she was still the most beautiful woman he had ever seen and he would marry her today if she said yes. D did not trust defendant around her children or grandchildren.
Evidence was presented that defendant had been convicted of a sexual assault in Hawaii.
Defense
Gloria testified that she never saw defendant do anything to D. In addition, she testified that defendant would not have been strong enough to hold D down when she was younger. Gloria testified that defendant was incarcerated for 10 years based on a commotion on the beach in Hawaii.
Defendant testified on his own behalf. He denied molesting E. He denied committing any sexual acts upon D. He said that he pleaded guilty in Hawaii to second degree sexual assault because his attorney advised him he would have to serve 30 years if he did not take the plea deal. His attorney said his sentence would be 10 years but he would probably be out in a year and a half. Defendant was not able to get out of prison in Hawaii before he served his entire sentence because he could not complete the treatment program. He could not complete the treatment program because he was unable to fill out the questionnaire that asked about the facts of the crime. Because he did not commit the crime, testified defendant, he was not able to comply with the initial requirements of treatment.
DISCUSSION
I. Exclusion of Prior Molestation Accusation by the Victim
In their trial brief, the People asked the court to exclude evidence that E had been interviewed by the police department about the possibility that her father had molested her in August of 2004. The People claimed that because E denied the molestation and there was no corroborative evidence of the molestation, it would have no evidentiary value.
At the pretrial hearings, the court asked the People whether E made a statement that initiated the investigation concerning her father. The People responded that the investigation was initiated by child protective services. Child protective services told Danielle that she needed to do something about the allegation or E would be removed from her home. The People claimed that Danielle called the police at the prompting of child protective services. The People represented to the court that E said nothing happened and the case was dropped.
Defense counsel asserted the report stated that E had told Danielle that she had been molested by her father. Danielle reported that E was upset and told her that her father had taken off her panties while she was asleep. He had opened up her legs and closed them. E also said that the father told E not to tell anyone.
Defense counsel was asked the relevance of the evidence. He responded that the relevance is that E may have misconstrued what happened with defendant the same way she may have misconstrued the touching by her biological father.
The court decided it would conduct a hearing outside the presence of the jury to determine what allegations E had made concerning her father. E testified at the hearing. E recalled defendant touched her “down there.” She was asked if anyone else had ever tried to touch her down there. She said no. She was asked if anyone had taken down her clothes to look at her down there. She said no. She was asked if her daddy had ever touched her down there, looked at her down there, or pulled her pants down to see her down there. She said no. E was asked if she remembered telling her mommy (Danielle) about her daddy touching her. She said that did not happen. E remembered talking to the police twice. The first time she told them about what defendant did to her. She did not remember what she talked to the police about the second time.
The People argued that the prior allegation was not relevant because E denied and/or could not remember that anything happened between her and her father. Defendant argued that one reason to admit the testimony of the allegation against the father is that she may have identified defendant as the perpetrator when in fact the perpetrator was the father.
The court found there is “no evidence before the Court at this point that, in fact, any statement was made by her [E] to another individual of abuse by the father.” In addition, the court stated that even if there was an allegation by E against the father, it was not exculpatory evidence of the defendant’s conduct. The court ruled that the defense could not ask E about any allegations against her father.
Defense counsel then proposed asking Danielle and/or D if E made allegations to them about possible abuse by her father. The court asked defense counsel what reports he had of E telling Danielle about an incident with her father. Defense counsel responded he had reports stating E told Danielle that E was upset and did not know why her father had taken her panties off while she slept. E also told Danielle that her father opened her legs then closed them, the father reopened her legs and closed them, and the father told E not to tell anyone.
According to defense counsel, Danielle then related the above story to D and D informed law enforcement. The People objected to this evidence based on hearsay and because it undermined the court’s original ruling.
The court stated, “Well, my original ruling, excluding evidence and questioning of [E] concerning statements she may have made about the father, the Court found not to be relevant; and therefore that was the basis of the exclusion. If there is a closeness in time and a similarity of acts and/or possible confusion of identification of individuals or other evidence of motive to fabricate or to -- or to identify someone other than the actual perpetrator I may have a different ruling on that because certainly the proper procedures under that scenario would be to have [E] testify that she -- that something either did occur or did not occur and that she did or did not make such statements to other individuals and if she denied making statements that she -- that there is contradictory evidence that any consistent statements could be testified to by someone else such as the mother. I don’t have any information specifically as to the relative timing of those allegations relative to the ones involving the defendant. Clearly any statement by either [E] -- strike that -- any statement by Danielle or D as to what CPS worker told Danielle or D’s statement as to what Danielle told her is hearsay and it’s inadmissible. I’m at a loss at this point based upon the information I have now to find on the relevancy of any information against the father. I’ve heard argument that allegations that of [E] about the father being exculpatory evidence as to the defendant and beyond that it is in and of itself exculpatory. And I don’t have any evidence before me there are contradictory statements at this point in time other than the fact that [E] has stated in the [Evidence Code section] 402 hearing that she didn’t recall telling anybody that the father told her or touched her or told her not to tell what he did.”
Defense counsel requested a further hearing to question Danielle. The court agreed.
Danielle was questioned outside the presence of the jury. E told Danielle that when she spent the night at her father’s house he made a bed for her on the floor. E said that her father opened her legs and took her panties off. Danielle’s sister Mandy heard E say this to Danielle and the sister called child protective service. Child protective services told Danielle that if she did not make a police report her children would be taken away from her. It was Danielle’s opinion that E’s father would not do anything to her and that E was confused about the situation.
After the parties questioned Danielle, the court asked her some questions. The court asked if child protective service workers conversed with E alone. Danielle responded that E talked to them alone. The court asked what was E’s emotional condition or demeanor after she had talked to the child protective service workers. Danielle said that E told her that she had made up what she said about her father.
Danielle testified that E was upset when she told her the allegations about her father. E and her little sister did not want to go with the father for their next visitation. E made the allegation against her father a couple of days after the father expressed concern that the girls did not want to go to his house. The girls did not want to go with the father because they wanted to go to a party with Danielle.
After Danielle testified, defense counsel argued that E, the chief complaining witness, was untruthful and had made up an allegation about her biological father. Counsel argued that this evidence had clear exculpatory value because E lied to her mother about a molestation allegation.
The People argued that the evidence had no relevance, it was just an instance of a child wanting to get her way, and so “typical of a small child.” The People then argued that the taking off of the underwear was totally different from what defendant was accused of. In addition, the mere removal of a child’s underwear by a caregiver may be purely innocent.
Defense counsel replied that the jury was entitled to know about the credibility of the witness and a falsehood in relation to an allegation of molest is relevant.
The court made the following ruling excluding the evidence: “The Court’s ruling on this matter, first, while the credibility of witnesses is always relevant, it would be absurd to go to the extremes of allowing every single witness to be questioned about whether they had ever made any false statement at any time in their life which could then be used to attack their credibility. That’s part of human nature and it’s understood that people make mistakes. What makes it -- what would make a false statement relevant is if it had something to do concerning the charge or if it had something to do with the basic character of the witness that could be considered as a motive to fabricate. Here, the evidence has been presented so far, shows that [E] made a statement to the mother. It was a statement that is fairly ambiguous as to content. It is then interpreted by someone else who hears that statement who then brings Child Protective Services in who then, through coercion, have the mother contact police.
“So we have multiple statements of [E] to the mother which is overheard to Child Protective Services and to the police. I don’t know what [E] may have told the police. I don’t know what [E] may have told Child Protective Service workers. The content of what was described with [E] telling the mother is something that could have an innocent context as well as something a lot worse. But the description of the behavior is inconsistent -- excuse me -- is inconsistent with [E]’s description of the defendant’s behavior. The fact that she was emotional, by the mother’s testimony and by the reasonable inferences that can be drawn, is that there was a reason or reasons for that behavior. It’s not connected in any period of time where there could be some confusion by [E] as to who did what to her, nor is there confusion as to what the defendant did, based upon her testimony and her 402 hearing yesterday.
“The Court finds that the allegations of acts are so distinct and different and they have been so far separated in time and that they may have, in fact, [been] products of completely different types of conduct, intent and behavior that there is no real relevance to the acts.
“As to relevance that she’s made a statement that the mother says that [E] said she fabricated something doesn’t go to fabrication as to a molest in the context of the molest charges against the defendant. And therefore, while the fact that she may have made a statement that, even if [E] were to say was not a truthful statement, [its] relevance is minimal. The Court finds that, under Evidence Code Section 352, to allow such evidence that, one, could consume an undue amount of time and would tend to mislead or confuse the jurors as to issues that they need to decide in this case. I find that the -- if there’s any relevance to this, its probative value is outweighed by the prejudicial effect which would be created by confusing or misleading the jury as to issues in this case; and therefore, the Court is excluding reference to questioning of and evidence testimony of this allegation of [E]’s as to the father in August of 2004.”
Defendant contends the trial court erred in excluding all evidence regarding E’s false accusation of molestation against her father. First, defendant argues that a false accusation of molestation made by a complaining witness against an adult male relative is clearly relevant to that witness’s accusation of molestation by another adult male relative in the same year. Next, defendant argues the evidence was admissible under Evidence Code section 1103 as character trait evidence because evidence that a crime victim has falsely accused someone of committing essentially the same crime the victim is accusing the defendant of committing is a specific instance of conduct that tends to show the victim is also falsely accusing the defendant. Defendant argues that the exclusion of the evidence was constitutional error violating his right to confrontation and to present a defense. Defendant contends the evidence was not inadmissible under Evidence Code section 352. Finally, defendant argues he was prejudiced by the exclusion of this evidence.
Regardless of whether the evidence met the threshold of being relevant and was possibly admissible under Evidence Code section 1103 as character trait evidence, the trial court ultimately excluded the evidence under Evidence Code section 352. We thus examine this ruling to determine if the court abused its broad discretion in precluding the admission of this evidence pursuant to Evidence Code section 352.
A trial court’s ruling under Evidence Code section 352 is reviewed under an abuse of discretion standard. The trial court’s determination “will not be overturned on appeal in the absence of a clear abuse of that discretion, upon a showing that the trial court’s decision was palpably arbitrary, capricious, or patently absurd, and resulted in injury sufficiently grave as to amount to a miscarriage of justice.” (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385.)
Defendant relies on People v. Burrell-Hart (1987) 192 Cal.App.3d 593 to support his position that the trial court erred in excluding testimony of E’s allegation against her father. In Burrell-Hart, the defendant was convicted of rape against the victim, Mary D. Mary had worked at the Aquarium Club. While working at the club, she got into a dispute with the defendant about how she maintained the bar. Mary no longer worked at the bar, but was present at the bar at a later time when the owner asked the defendant to walk Mary to her car. He did so and then asked her for a ride. She agreed to give him a ride and accepted his invitation to come into his apartment where he violently assaulted and raped her. (Id. at pp. 596-597.)
Defendant sought to admit evidence that on a prior occasion Mary got into an argument with a patron of the club and the next day she accused the patron of trying to break into her house and rape her. (People v. Burrell-Hart, supra, 192 Cal.App.3d at pp. 596-597.) The trial court denied the motion to admit this evidence. The appellate court found this was error.
We conclude Burrell-Hart is factually distinguishable and no abuse of discretion has been demonstrated by the exclusion of the testimony regarding E’s allegation against her father. Unlike Burrell-Hart, where the alleged false report involved a crime identical to the one being prosecuted and where the alleged false report arose under similar circumstances, the evidence here does not have the same type of similarities.
Contrary to defendant’s assertion that the issue could be presented to the jury utilizing just the testimony of E and Danielle, the issue involved E, Danielle, Danielle’s sister Mandy, E’s father, child protective services workers, and the police. The determination of what occurred would have to be litigated as a collateral issue and would require an abundance of additional testimony. In addition, as found by the trial court, the incidents were not similar. E’s allegation against her father was fairly ambiguous as to content and could easily have occurred in an innocent context, such as in changing her clothing. Furthermore, any allegation against the father apparently was motivated by E’s desire to go to a party rather than visit with him. The allegation by E regarding her father was so ambiguous and so different from her clear-cut recollection of a sexual penetration by defendant that it was clearly distinct and not connected.
Although defendant characterizes E’s report against her father as a report of molestation, the trial court was within its discretion to find that the allegation against the father was not closely related or similar to the circumstances of the molestation alleged against defendant.
The trial court did not err in finding that the issue would consume an undue amount of time and would tend to mislead or confuse the jurors. The trial court did not abuse its discretion when it excluded reference to E’s allegation against her father.
II. Evidence Code Section 1108—Prior Bad Acts
The People filed a pretrial motion seeking to admit evidence of defendant’s prior bad sexual acts with D, prior bad sexual acts with his brother J, and his prior conviction from Hawaii. The facts of the Hawaii prior were described in the moving papers as an incident when defendant went up to a six-year-old female on a beach in Hawaii and put his finger inside her “private.” When the victim’s father returned to her, she was crying and identified defendant as the perpetrator.
At the hearing on the motion, the People argued to the court that these acts were admissible as propensity evidence and demonstrated defendant’s propensity spanning a lengthy period of time beginning in approximately 1967 with D, his act in Hawaii in 1993, interrupted by his 10 years of incarceration, and followed shortly thereafter with his current crime.
Defendant objected to the admission of all of the prior act evidence. Even if the evidence was admissible under Evidence Code section 1108, argued defendant, it should be excluded pursuant to Evidence Code section 352. He claimed that E’s testimony was not very credible and the acts with D and J occurred a long time ago, depriving him of any opportunity to investigate the incidents, and were not similar. As to the Hawaii incident, defendant objected that the conduct was going to be introduced by secondary evidence and without calling the victim, depriving him of an opportunity to cross-examine the Hawaii victim.
Defense counsel conceded that the Hawaii incident involved similar conduct and the age and gender of the victim were similar to the current victim. The court confirmed with defense counsel that his main objection was the use of a document establishing the conviction rather than testimony by the victim. The court noted case law establishes that documentation of a conviction can be used as evidence of prior bad acts. Defense counsel responded the evidence was still subject to an Evidence Code section 352 objection.
The court admitted evidence of defendant’s touching D in a sexual manner, but excluded evidence of defendant looking into D’s room and coming into her bedroom at night when they were both young. The court found that the Hawaii conviction was a sexual offense and was admissible under Evidence Code section 1108.
The court also found evidence of J’s oral copulation of defendant admissible, but ruled inadmissible evidence that defendant’s friend was orally copulated by J during the same incident. As it turned out, the People presented no evidence of this incident.
D testified about the two incidents when she was a teenager when defendant sexually assaulted her. On cross-examination, defense counsel asked D about a conversation she had with defendant in which she confronted him about her allegations of sexual abuse against her. She was asked by defense counsel if during this conversation she spoke to him about the girl in Hawaii and asked him what the girl may have done to arouse him. She said she did.
On re-direct examination D was asked about portions of the conversation dealing with the victim in Hawaii. D asked defendant about the six-year-old child in Hawaii. The People asked D if defendant had stated how old the Hawaii victim was. Defense counsel objected. The court overruled the objection and D testified that defendant confirmed that the Hawaii victim was six years old. Later the court stated on the record outside the presence of the jury that the court would allow the hearsay statements of defendant regarding the Hawaii victim to come in as an admission or adoptive admission.
Fresno police detective Janet Eide spoke to defendant about moving from Hawaii to Fresno. Based on the information she had, defendant had just been released from prison for his conviction in Hawaii for a violation of sexual assault in the second degree.
The court admitted a certified copy of defendant’s conviction from Hawaii and a redacted “C.I.N.I.” report.
Defendant’s mother testified on defendant’s behalf. She said that she allowed defendant to come and live with her after he was released from prison. She said that all she knew about the crime was there was a commotion on the beach and defendant was arrested. On cross-examination, the mother testified that defendant told her he was arrested for fondling a youth, but she did not know the age. She testified she knew he was in prison for molesting a little girl.
Defendant testified about the Hawaii incident. He said he was at the beach with his girlfriend when he was asked to participate in a line-up. He agreed to participate and was unexpectedly arrested for sexual misconduct. He entered a plea in Hawaii. Defendant had to serve his entire 10-year term because he would not participate in the treatment program. He testified that he could not participate in the treatment program because he could not describe the crime because he did not commit the crime. Defendant denied all of the incidents of sexual assaults against D, the Hawaii victim, and E.
According to defendant, his initial attorneys in Hawaii did not tell him any of the specifics of the charges against him. Defendant went on to testify that later in the process he received discovery that talked about “horrible” allegations that someone touched the child.
Defendant claims the trial court did not properly exercise its discretion under Evidence Code section 352 when it admitted the prior sexual activity evidence. Defendant contends that the acts with D were so dissimilar to the charged crime that they had no predictive value as to his propensity to commit a lewd act on his niece decades later. Defendant claims that evidence of the prior from Hawaii was more prejudicial than probative because there was no evidence of what occurred.
When a defendant is accused of a sexual offense, evidence of that defendant’s commission of another sexual offense is admissible under Evidence Code section 1108, subdivision (a) unless it is inadmissible under the provisions of Evidence Code section 352. The evidence of a prior sexual offense is admissible to prove a predisposition to commit sexual offenses and the admission of such evidence does not deny a defendant due process. (People v. Falsetta (1991) 21 Cal.4th 903, 911-925.)
“In admitting evidence of prior sexual offenses pursuant to Evidence Code section 1108, subdivision (a), the trial court considers the nature, relevance and remoteness of the uncharged offense, the degree of certainty that the prior offense was committed, the likelihood admission of the offense will confuse, mislead or distract the jury from its primary inquiry, the burden of the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to outright admission, such as excluding irrelevant and inflammatory details. [Citation.]” (People v. Cogswell (2007) 156 Cal.App.4th 698, 717.)
In exercising its discretion under Evidence Code section 352, “[t]he trial court has broad discretion in determining whether the probative value of evidence outweighs any potential it may have to prejudice a party or to confuse or mislead the jury. It is only when the exercise of that discretion is ‘arbitrary, capricious or patently absurd’ that we reverse the trial court’s decision to admit the evidence. [Citation.]” (People v. Cogswell, supra, 156 Cal.App.4th at p. 717.)
We find the trial court did not err in admitting evidence of defendant’s prior sexual offense in Hawaii. The crime was very similar to the charged offense, and defense counsel conceded such when asked by the trial court. Even if the similarity was not clearly shown by the evidence, the fact that defendant committed a prior sexual offense was relevant to the question of his predisposition to commit sexual offenses. The prior offense was not remote because defendant was incarcerated for 10 years and reoffended shortly after his release. Defendant pleaded guilty to the prior offense, thus removing the question of certainty and removing the burden on defendant to defend against these charges. The fact that defendant chose to deny the Hawaii incident in this trial is not the equivalent of having to defend against prior sexual crimes that have not resulted in a conviction on a later occasion. The prior was no more inflammatory than the current charge. (People v. Wesson (2006) 138 Cal.App.4th 959, 969-970.)
Our above summary of the evidence demonstrates that the facts of the Hawaii prior were sufficiently proved to allow the admission of this evidence. The factors in favor of admission predominated, and the trial court did not abuse its discretion in finding that the prior conviction from Hawaii was admissible.
We also find that the incidents of sexual behavior with D were properly admitted. While the incidents occurred many years prior, “[n]o specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible.” (People v. Branch (2001) 91 Cal.App.4th 274, 284.) While there was a substantial gap between the activities with D and the current offense, the gap was not devoid of criminal sexual activities by defendant. He committed a sexual offense against the Hawaii victim in 1993 and the current offense occurred shortly after his release from prison after serving his 10-year sentence. The sequence of sexual activities by defendant was probative of his criminal disposition. In addition, the activities against D and E involved a female relative that defendant had repeated access to. The activities against D and E occurred while the females were being cared for and watched over by the same individual, D’s and defendant’s mother. In light of these similarities and the fact that defendant did not lead a blameless life between the activities with D and E, we find the trial court’s ruling finding the evidence was admissible was not arbitrary, capricious, or patently absurd.
III. Evidence Code Section 1101
In addition to admitting the evidence of the Hawaii conviction and the acts against D as propensity evidence under Evidence Code section 1108, the trial court also admitted the evidence under Evidence Code section 1101, as evidence of identity, common design or plan, or intent. Defendant contends it was error to do so.
When the trial court admits evidence of prior sexual assaults under Evidence Code sections 1101 and 1108, we will only find error if the evidence was inadmissible under both sections. (People v. Branch, supra, 91 Cal.App.4th at pp. 280-281; People v. Walker (2006) 139 Cal.App.4th 782, 797.) Because we have found the evidence was properly admitted under section 1108, we need not determine if it was also admissible under section 1101.
IV. Prior Foreign Conviction as a Strike
In 1994, defendant pleaded guilty to one count of violating Hawaii Revised Statutes section 707-731, sexual assault in the second degree. It was alleged that the Hawaii prior was a qualifying prior felony under the Three Strikes law (§ 667, subd. (b)) and within the meaning of the One Strike law (§ 667.61, subds. (c)(7) and (d)(1)).
In their papers seeking to admit the Hawaii conviction as a prior bad act and also as a prior serious felony for purposes of the Strikes laws, the People described the incident as involving defendant approaching a six-year-old female on a beach in Hawaii and then putting his finger inside her “private” while her father was not close by. When the victim’s father returned to her, she was crying and identified defendant as the perpetrator.
The crime of sexual assault in the second degree from Hawaii was defined to the jury as follows: “Every person who knowingly subjects another person to an act of sexual penetration by compulsion is guilty of the crime of sexual assault in the second degree, a violation of Hawaii Penal Code Section 707-731.
“In order to prove this crime, each of the following elements must be proved:
“1. A person knowingly subjected another person to an act of sexual penetration by compulsion, and
“2. Compulsion is defined as involuntary, or the lack of consent, or by constraint, or by duress, or by force.”
The People claimed that defendant’s conviction for sexual assault in the second degree in Hawaii included all of the elements of section 288, subdivision (a) and thus qualified as a strike under both the Three Strikes law and the One Strike Law.
Prior to trial, the court found that the Hawaii conviction included all the necessary elements to constitute a qualifying felony offense in the State of California.
The only documentary evidence of the Hawaii conviction was the Hawaii judgment and a “CLETS” document. The judgment contained information that defendant was charged with sexual assault in the first degree but pleaded guilty to sexual assault in the second degree. He was sentenced to 10 years in prison on November 18, 1994. The “CLETS” document showed that he had a prior conviction for sexual assault in the second degree.
In addition to the documentary evidence just stated, evidence regarding the Hawaii prior came out during the testimony of the witnesses, as summarized in section II above.
Prior to the trial on the prior convictions, the district attorney asked the court if he would be able to use testimony from the case-in-chief in the bifurcated trial on the prior conviction. The court said he could submit the case on the evidence used in the case-in-chief. The district attorney replied that that is what he intended to do.
The jury returned its verdict of guilty on count one and not guilty on count two. The district attorney then stated he would be submitting the question of the priors on the testimony and documentary evidence submitted in “phase one” of the trial. The defendant also submitted the matter based on the prior evidence. The prosecution proceeded on the theory that the Hawaii prior contained all of the elements of a lewd act with a child contained in California Penal Code section 288, subdivision (a). Both sides rested.
The court instructed the jury, and it found that defendant had been convicted of a prior felony offense in the state of Hawaii that fell within the meaning of the Three Strikes law and the One Strike law.
Defendant contends the trial court erred in finding that his prior Hawaii conviction qualified as a strike. Defendant argues multiple theories of why this is so, including that it was not shown by proper evidence that the Hawaii prior involved a victim under the age of 14 years as required under the California equivalent, Penal Code section 288, subdivision (a). Respondent takes no issue with most of defendant’s arguments, with the exception that respondent argues that the trial court properly found the Hawaii prior qualified as a strike because all of the elements, including the age element, were shown by the evidence produced during the first phase of the trial on the charges involving E that were admitted at the bifurcated trial and on the prosecution’s representations at trial that the Hawaii victim was six years old.
We begin by noting that, contrary to respondent’s assertion, the prosecution’s representations to the court and/or offers of proof are not evidence and cannot be used to support the prior convictions. In addition, the prosecution’s questions to witnesses that contained facts of the Hawaii event, to which the witnesses themselves could not attest, are not evidence that can be used to support the prior convictions.
In any event, respondent’s argument fails on a more important basis. It is firmly established that “[i]n determining the truth of a prior conviction allegation, the trier of fact may look to the entire record of the conviction, but no further. [Citation.] The prosecution is ‘precluded from presenting any evidence outside the record of conviction to prove the circumstances of the prior crime.’ [Citation.] The record of the prior conviction includes transcripts of the preliminary hearing, the defendant’s guilty plea, and the sentencing hearing. [Citation.]” (People v. Thoma (2007) 150 Cal.App.4th 1096, 1101.)
The reason for limiting the evidence to the record of the conviction in determining the truth of a prior conviction is to “‘effectively bar[] the prosecution from relitigating the circumstances of a crime committed years ago and thereby threatening the defendant with harm akin to double jeopardy and denial of speedy trial.’” (People v. Trujillo (2006) 40 Cal.4th 165, 180, brackets in original.)
Sections 667 (Three Strikes law) and 667.61 (One Strike law) provide for sentence enhancements for prior felonies from another jurisdiction that include all of the elements for qualifying felonies under California law. A conviction for section 288, subdivision (a) is such a qualifying felony conviction under the Three Strikes and One Strike laws. “Thus, the prior foreign conviction ‘must involve conduct that would qualify as a [strike] … felony in California.’ [Citation.]” (People v. Jenkins (2006) 140 Cal.App.4th 805, 810.) “To make this determination, the court may consider the entire record of the prior conviction as well as the elements of the crime.” (People v. Avery (2002) 27 Cal.4th 49, 53.) When the record does not sufficiently demonstrate the facts of the prior conviction, the trial court must presume the prior conviction was for the least offense punishable under the foreign law. (People v. Rodriquez (1998) 17 Cal.4th 253, 262.)
The only items of evidence presented here on the truth of the prior convictions from the “record of conviction” were the two documents that merely showed that defendant had a conviction from Hawaii for sexual assault in the second degree. These documents contained no facts of the crime and contained nothing about the victim’s age. In order to prove a violation of California Penal Code section 288, subdivision (a), the qualifying conviction, it must be shown that the victim was less than 14 years of age. Thus, the People failed to show from the record of conviction that defendant had been convicted in Hawaii of a crime that was the equivalent of section 288, subdivision (a) and would qualify in California as a strike under the Three Strikes law and/or the One Strike law.
Respondent seeks to avoid the problem by arguing that defendant agreed to submit the matter of the prior to the jury based on the documentary and testimonial evidence produced at the earlier phase of trial. Thus, respondent contends that defendant consented to the admission of the evidence at trial and may not now object to it on appeal. Respondent fails to explain how allowing such a waiver in this circumstance would alleviate double jeopardy and speedy trial concerns so strongly expressed by the California Supreme Court as the basis for limiting the evidence of prior convictions to the record of conviction; nor does such a submission amount to a knowing waiver of rights or a stipulation to the truth of unverified facts received in an inadmissible form. In any event, we find there could be no tactical reason for defense counsel to agree to the admission of evidence that is clearly inadmissible on the question of the prior, when that inadmissible evidence is the only evidence presented that would qualify the prior as a strike in California and when the sole question before the court and jury at that time was the validity of the prior conviction.
The evidence presented at trial from the record of conviction was insufficient to prove that the Hawaii prior qualified as a strike under California’s Three Strike or One Strike laws. The prior conviction allegations must be reversed.
When an appellate court reverses a prior conviction allegation due to insufficiency of the evidence, the proper procedure is to remand the matter for retrial of the allegation. (People v. Barragan (2004) 32 Cal.4th 236, 239; People v. Rodriquez (2004) 122 Cal.App.4th 121, 131.)
Because we reverse the prior conviction allegations, we need not discuss defendant’s remaining issues that relate only to the prior conviction allegations.
DISPOSITION
The jury’s findings that defendant suffered a prior serious felony conviction within the meaning of the Three Strikes law (Pen. Code, § 667, subd. (b)) and a prior serious felony conviction within the meaning of the One Strike law. (§ 667.61, subds. (c)(7) and (d)(1) are reversed and remanded to the trial court for further proceedings. In all other respects, the judgment is affirmed.
WE CONCUR:LEVY, J., CORNELL, J.