Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA037950, Elena Duarte, Judge.
Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P.J.
Jerry McDonnell appeals his conviction on six counts of lewd acts upon a child under 14 years old. He claims admission of a recorded telephone conversation violated his Fourth Amendment rights, and that his counsel was ineffective for failing to move to suppress on that basis. Appellant also claims admission of a prior conviction for lewd act upon a child under 14 years of age violated his due process rights. We find no error and affirm.
FACTUAL AND PROCEDURAL SUMMARY
We summarize the pertinent facts in accordance with the general standard governing appellate review: evidence is considered in the light most favorable to the verdict, and all conflicts are resolved in favor of the verdict. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Appellant raised the victim, his daughter (daughter), in a mobile home on church property. From about age four, she slept in the same bed as appellant because she was afraid to sleep alone. At about that time, appellant began to touch her sexually in bed at night. This occurred more than twice a week for several years, from 1995 through 2000. These incidents took place in their mobile home and also in the “sleeper” portion of appellant’s semi-truck.
In 2001, appellant was convicted of committing a lewd act upon one of daughter’s friends, a young girl who was under 14 years old at the time. While appellant was in custody, daughter lived with her aunt. The aunt and several other people asked daughter if appellant had molested her. According to daughter, she did not report the molestation to anyone because she was afraid of losing her only parent.
Appellant participated in extensive counseling during his probation. He worked with his probation officer and appeared before a judge in order to obtain permission for daughter to live with him again. After she resumed living with appellant, he attempted on one occasion to touch her sexually, but stopped when she told him “no.” After that incident, he never again attempted sexual contact with her.
In 2007, 16-year-old daughter was living with appellant and Christina, his girlfriend at the time. Daughter formed a good relationship with Christina, and told her about the molestation. Christina confronted appellant and then removed daughter and her own children from appellant’s home. Christina also helped daughter initiate a criminal complaint against appellant.
Detective Charles Ansberry, of the Los Angeles Sheriff Department’s child-abuse unit, was assigned to daughter’s case. Ansberry set up a pretext telephone call between daughter and appellant. The purpose of the call was to elicit statements from appellant about the molestation. Daughter agreed to call appellant so that their conversation could be recorded by the police. A few days after the telephone conversation, Ansberry asked appellant to come to the police station to discuss his sex offender registration. Ansberry questioned appellant, who denied molesting daughter and also denied having the recent telephone conversation with her.
Appellant was charged with six counts of lewd act upon a child under 14 years old, in violation of Penal Code section 288, subdivision (a). Each count covered a separate year, from 1995 through 2000. Each count further alleged that the victim was under 18 years old and had reported the offense to a responsible adult and agency, pursuant to section 803, subdivision (f); that the appellant was previously convicted of the crime of lewd act upon a child; and that the appellant suffered a prior conviction of a serious or violent felony, pursuant to section 667.71. Before trial, defense counsel moved to suppress the recorded telephone conversation; the motion was denied. At trial, appellant testified in his own defense. He denied ever molesting daughter.
All further statutory references are to the Penal Code unless otherwise indicated.
The jury found appellant guilty of all six counts. Appellant admitted the prior conviction, and the jury found that the statute of limitations exception under section 803, subdivision (f) was true for each count. Appellant was sentenced to prison for 16 years. He filed this timely appeal.
DISCUSSION
I
Appellant claims his trial attorney was ineffective for failing to move to suppress the recorded telephone conversation. To show ineffective assistance of counsel, appellant must establish: (1) that counsel’s representation fell below an objective standard of reasonableness, and (2) any deficiencies in counsel’s performance were prejudicial to the defense. (Strickland v. Washington (1984) 466 U.S. 668, 688, 692-693.) “[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” (Id. at p. 697.) “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,... that course should be followed.” (Id. at p. 697.)
To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington, supra, 466 U.S. at p. 694.) Appellant fails to show that the result of the proceeding would have been different if his attorney had brought a written motion to suppress on Fourth Amendment grounds.
The record shows that defense counsel made an oral pretrial motion to suppress, but appellant claims that counsel failed to specifically urge Fourth Amendment grounds. Defense counsel clearly asserted Fifth Amendment grounds, arguing that recording the telephone conversation violated appellant’s Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436.) Counsel stated, “I did have a Miranda issue I wanted to briefly discuss and then the discussing of just taping someone without their knowledge in general.” The court inquired, “And that would be just a general Fourth Amendment claim?” Counsel did not directly reply, but moved on with her Miranda argument.
Whether or not counsel explicitly sought suppression under the Fourth Amendment, the court considered Fourth, Fifth, and Sixth Amendment grounds for suppressing the recording. The court cited a case which “analyzes calls such as this on Fourth, Fifth, and Sixth Amendment grounds and indicates that neither of those require... the suppression of the sound recording.” The court considered the Fourth Amendment in particular, stating that this type of telephone call is “not violative of the Fourth Amendment because there’s no right to privacy in a phone call where another member is consenting to the intercept.” The court denied the motion to suppress the recording.
Appellant also argues counsel was ineffective because the motion to suppress was not made according to proper procedure. Appellant asserts that a motion to suppress evidence without a warrant in violation of the Fourth Amendment must be made in writing and accompanied by a memorandum of points and authorities, citing section 1538.5, subdivision (a)(1)(A) and (2). Although the motion was made orally and lacked specificity, it is clear from the record that the court considered the Fourth Amendment basis for suppressing the sound recording. Appellant has not shown that any deficiency in counsel’s performance was prejudicial to the defense.
More importantly, the motion to suppress was properly denied. The Fourth Amendment prohibits unreasonable searches and seizures, and its protection extends to oral statements. (Silverman v. United States (1961) 365 U.S. 505.) It protects oral conversations from the “uninvited ear,” unless a narrowly drawn search warrant is obtained or one of the parties to the conversation consents to the eavesdropping or recording. (Katz v. United States (1967) 389 U.S. 347, 353; People v. Murphy (1972) 8 Cal.3d 349, 359.) The consent must be freely and voluntarily given. (Florida v. Royer (1983) 460 U.S. 491, 496.) Voluntariness of consent is a question of fact to be determined from the totality of circumstances. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 233-234.)
Appellant argues that daughter did not voluntarily consent to making or recording the telephone call. Daughter testified that she agreed to make the call, knowing it would be recorded and that it would be used in criminal proceedings against appellant. When asked if she understood the purpose of the call, she stated: “My understanding was so that—that we can have a recorded phone call of my dad admitting to molesting me.” The record indicates that daughter consented to making the telephone call and its recording by the police.
There is no evidence that daughter was coerced by law enforcement to make the telephone call. The option of making the pretext telephone call was presented to her as part of standard procedure. Detective Ansberry testified, “If she didn’t want to do the phone call, I certainly wouldn’t force her to do it. It’s—for some kids, it’s incredibly damaging. For some kids, it’s incredibly liberating. I throw the idea out there. I tell ‘em the pros and cons, the benefits, and I allow them to arrive at their own conclusion.” When daughter first spoke to Ansberry, she was uncomfortable with the idea of making the call on that same day. Daughter went to the police station on her own accord four days later and indicated that she was comfortable and ready to make the call. The adult she was living with at the time, Christina, went with her.
Appellant asserts that daughter’s consent was not voluntarily because she was a minor. He argues that minors cannot give voluntary consent. In treating challenges to searches, courts have assumed that minors are capable of giving consent. (See In re Randy G. (2001) 26 Cal.4th 556, 560 [minor consented to search of his bag and person which revealed a concealed knife]; In re Cory L. (1988) 203 Cal.App.3 1020, 1024 [minor consented to search by principal which revealed drugs].)
Appellant cites a single supporting case, People v. Jacobs (1987) 43 Cal.3d 472, 482, in which the California Supreme Court held that the defendant’s 11-year-old stepdaughter lacked the authority to permit law enforcement to search defendant’s home. The court emphasized that while parents may grant minor children joint access and mutual use of the home, parents usually retain control and the power to rescind the authority they have given. (Id. at p. 482.) The Jacobs court recognized exceptions to the general rule that “consent by a minor will be ineffective in all cases in which no adult occupants are present.” (Id. at p. 483.) The court stated that older children may have greater discretion to admit visitors, and that otherwise illegal searches may be justified when a child is the victim of a crime. (Id. at p. 483.) Daughter was 16 years old at the time of the phone call, and she was the victim of a crime. Under the Jacobs standard, daughter had the authority to permit the recording. (See People v. Santiago (1997) 55 Cal.App.4th 1540, 1544 [11 year old gave valid consent to search of caretaker’s home because she sought out help and was a victim of caretaker’s abuse].)
The circumstances of this case present an even stronger basis for concluding that daughter had the authority to consent. This case involves a telephone call, not the search of a home. Daughter initiated the call and participated in the conversation. Appellant and daughter had equal rights to privacy in the telephone conversation. Daughter had the authority to consent to the recording of the telephone conversation in which she was a participant.
The taped conversation was properly admitted, and any deficiency in the form of counsel’s suppression motion was not prejudicial.
No claim is made that the recording of the telephone conversation violated sections 633 and 633.5. We express no view on this issue.
II
Appellant claims that the trial court improperly admitted evidence of his prior conviction for a lewd act upon a child under 14 years of age, and that doing so violated his due process rights. We review the admissibility of this evidence under the abuse of discretion standard. (People v. Cudjo (1993) 6 Cal.4th 585, 609.) A trial court abuses its discretion when its ruling “falls outside the bounds of reason.” (People v. DeSantis (1992) 2 Cal.4th 1198, 1226.)
Defense counsel objected to admission of the evidence at trial, but the court allowed it under Evidence Code sections 1108 and 352. The general rule, set forth in section 1101, provides that evidence of a person’s character is inadmissible when offered to prove his or her conduct on a specific occasion. An exception is provided by section 1108, subdivision (a), which applies to criminal actions in which the defendant is accused of a sexual offense. Under that statute, “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.” Section 352 gives trial courts discretion to exclude “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.”
All further statutory references are to the Evidence Code unless otherwise indicated.
To admit evidence under sections 1108 and 352, a trial court must engage in a careful weighing process to determine if propensity evidence is unduly prejudicial. (People v. Falsetta (1999) 21 Cal.4th 903, 916-917.) “Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, 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, or excluding irrelevant though inflammatory details surrounding the offense.” (Id. at p. 917.)
In this case, the nature of the prior offense is very similar to the charged offense. Both involve the sexual touching of a young girl in bed at night, and the victims were about the same age at the time of the conduct. The offenses are of the “same class and nature... and thus relevant.” (People v. Wesson (2006) 138 Cal.App.4th 959, 970 [trial court did not abuse its discretion in allowing evidence of similar forcible sex offense].)
Although the prior conviction occurred seven years before this case was filed, the conduct in the prior offense occurred at about the same time as the conduct in this case. Daughter testified that appellant attempted to molest her for the last time after he suffered the prior conviction. Thus, the prior offense was not remote in time.
Appellant argues the evidence should not have been admitted because it was highly prejudicial. Probative evidence may be barred if it causes undue prejudice to the defendant. “A trial court should not exclude highly probative evidence unless the undue prejudice is unusually great.” (People v. Sassounian (1986) 182 Cal.App.3d 361, 402.) Undue prejudice is caused by evidence that “prompts an emotional reaction against the defendant and tends to cause the trier of fact to decide the case on an improper basis.” (People v. Walker (2006) 139 Cal.App.4th 782, 806.)
In this case, the probative value of the evidence is not outweighed by the prejudice to the defendant. There is no uncertainty as to whether the prior offense occurred. The prior charge resulted in a criminal conviction, after which appellant underwent a prison diagnostic and completed five years of probation. This ensures that the defendant did not have to defend against the previous allegations in this case. (People v. Falsetta, supra, 21 Cal.4th at p. 916.) It also eliminates any concern that the jury might have been tempted to punish appellant for the other offense instead of the instant crimes. (Id. at p. 917.) Evidence of the prior offense was presented by the victim of that offense. This took little time and is unlikely to have confused the jury.
Nor was the probative value of the evidence outweighed by the inflammatory circumstances of the prior offense. The prior molestation was confined to a single incident and involved daughter’s friend. If anything, it was less inflammatory than the molestations in this case, which took place on a regular basis for several years and involved appellant’s own daughter.
The trial court did not abuse its discretion in concluding that the probative value of the evidence was not substantially outweighed by its prejudicial effect on the defense.
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.