Opinion
E070452
10-21-2019
THE PEOPLE, Plaintiff and Respondent, v. STANLEY KEITH WILLIAMS, Defendant and Appellant.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson, Allison V. Acosta, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1303038) OPINION APPEAL from the Superior Court of San Bernardino County. William Jefferson Powell IV, Judge. Affirmed. Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson, Allison V. Acosta, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant repeatedly molested a female relative over a period of six or seven months, when she was 13 and 14 years old. The molestation generally consisted of touching her breasts and buttocks; however, it also included digital penetration, oral copulation, and, on one occasion, brief sexual intercourse.
In a jury trial, defendant was found guilty of:
1. Two counts of a lewd act on a child under 14 (§ 288, subd. (a));
This and all further statutory citations are to the Penal Code, unless otherwise indicated.
2. Two counts of a lewd act on a child aged 14 (§ 288, subd. (c)(1)); and
3. One count of unlawful sexual intercourse with a child under the age of 16 (§ 261.5, subd. (d)).
In the same jury trial, one prior conviction for lewd acts on a child under 14 was found true, both as a "one strike" special circumstance (§ 667.61, subds. (a) & (d)) and as a strike (§§ 667, subds. (b)-(i), 1170.12). Defendant was sentenced to 110 years 8 months to life.
Defendant's sole appellate contention is that the trial court erred by denying his motion to bifurcate the trial of the prior conviction allegations. As we will discuss, evidence of the conviction itself — as well as evidence of the acts underlying the conviction — was admissible in the guilt trial. Accordingly, bifurcation was pointless. We will affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Charged Sexual Offenses.
As of 2012, defendant lived in an apartment on Sepulveda Avenue in San Bernardino.
T. was defendant's cousin once removed. He paid her to do housecleaning for him once or twice a week.
The trial court ordered that the victims be identified by their actual first names plus the last name "Doe." Both first names, however, were rare and distinctive. We therefore refer to the victims by first initial only.
Around December 2012 or January 2013, defendant started touching T. sexually when she was at his apartment. At the time, he was 48 and she was 13. He would touch her breasts, legs, and buttocks. This happened more or less weekly.
Defendant would tell T. he loved her. She told him she loved him, too. He gave her a cellphone. In her view, they were "in a dating relationship."
Once, while T. was doing the dishes, defendant came up behind her and rubbed his penis on her buttocks.
Another time, again while she was doing the dishes, he digitally penetrated her.
Still other times, when she was making the bed, he would push her down, lie on top of her, and touch her breasts and her buttocks.
In June 2013, after T. turned 14, defendant moved to a house on Lynwood Drive in San Bernardino. T. went to his house several times with her family.
On one occasion, T.'s father went there to do some handyman work and took her along. When the father went out to Home Depot, defendant orally copulated T. and she orally copulated him. He started to put his penis in her vagina. She told him it hurt, so he took it out. He got up and masturbated instead, ejaculating into a corner of the room.
On another occasion, when T. was at defendant's house for a fish fry, they orally copulated each other and he digitally penetrated her.
Defendant and T. sent each other messages on Facebook. In one, T. said, "I had so much fun with you today. Just making me feel so horny. I like that. We need to do that more often." Defendant replied, "I can't wait, babe. Let's try to make that happen real soon. Okay. Make sure you erase all this."
In July 2013, T.'s mother found out about the molestation when a neighbor alerted her to the Facebook messages. She asked T. if defendant had touched her; T. responded by falling to the floor, in a fetal position, and crying and screaming.
T.'s mother phoned defendant and asked if he had touched T. He hung up on her. Half an hour later, he showed up at her house; he demanded the cellphone he had given T. After he left, T.'s mother called the police.
When the police interviewed T., she did not tell them about all of the incidents to which she later testified at trial. A police officer who was experienced in investigating crimes against children explained that child victims will often minimize the frequency or the severity "of what happened to them."
In a search of defendant's bedroom, using a black light, the police found a patch of bodily fluid in the corner, with "drip marks . . . running down the wall."
Jailhouse phone calls were introduced, supposedly showing that defendant tried to get T. to change her story; however, they were vague and not particularly probative. The People cite a letter defendant wrote that was somewhat clearer on this point, but as far as we can tell, it was never introduced into evidence.
B. Prior Sexual Offenses.
S. testified that defendant was a family friend. In August 1999, when she was 11, she attended a barbecue at his house and stayed overnight. During the barbecue, while S. and defendant were alone in his bedroom, he touched her breasts and her vagina, under her clothing. That night, she awoke to find him once again touching her breasts and her vagina.
At first, she did not tell anybody because she was "in shock." A couple of weeks later, when school started, she told her best friend what had happened.
In 2000, defendant pleaded guilty to one count of a lewd act against S. and was sentenced to three years in prison.
II
REFUSAL TO BIFURCATE
Defendant contends that the trial court erred by denying his motion to bifurcate the trial of the prior conviction allegations.
A. Additional Factual and Procedural Background.
The prosecution filed a motion in limine to admit evidence of the sex offenses against S. The trial court ruled that it was admissible as evidence of intent under Evidence Code section 1101 and as evidence of propensity under Evidence Code section 1108.
Defense counsel filed a motion in limine to bifurcate the trial of the prior conviction allegations. The trial court indicated that it was going to deny the motion, essentially because the evidence relevant to the prior conviction allegations was cross-admissible in the guilt trial. Defense counsel tried to distinguish the acts underlying the conviction from the conviction itself, saying: "[A]fter you get in . . . the acts . . . , I don't know what the added benefit . . . from hearing about a certified prior is. I think it would . . . allow[] for a lot of confusion." The trial court ruled that the fact of the conviction was cross-admissible, and hence it denied the motion.
Before S. testified, defense counsel asked the trial court to reconsider. Nevertheless, it adhered to its ruling.
As a result, the prosecution introduced not only S.'s testimony, but also certified official records documenting the prior conviction. These records showed that defendant had pleaded guilty to one count of a lewd act on a child under 14. They also showed that, in exchange, one count of a lewd act on a child under 14, one count of sexual penetration of a person under 14 (§ 289, subd. (j)), and an on-bail enhancement (§ 12022.1) had all been dismissed, and defendant had been sentenced to three years in prison. Finally, they showed that defendant's parole had been revoked.
Defendant claims that the records showed that he was also sentenced concurrently in another case. We disagree. The plea form initially stated that that defendant was to be sentenced "concurrent w/FSB022118," but these words were crossed out.
A deputy district attorney testified as an expert witness about the meaning and significance of the records. He explained that defendant had pleaded guilty to a lewd act on a child. He testified that two other counts had been dismissed; he did not specify what they were. He also did not testify about the revocation of parole.
B. Discussion.
"[A] trial court has the discretion, in a jury trial, to bifurcate the determination of the truth of an alleged prior conviction from the determination of the defendant's guilt of the charged offense . . . ." (People v. Calderon (1994) 9 Cal.4th 69, 72.)
"[T]he denial of a defendant's timely request to bifurcate the determination of the truth of a prior conviction allegation from the determination of the defendant's guilt is an abuse of discretion where admitting, for purposes of sentence enhancement, evidence of an alleged prior conviction during the trial of the currently charged offense would pose a substantial risk of undue prejudice to the defendant." (People v. Calderon, supra, 9 Cal.4th at pp. 77-78.)
"Having a jury determine the truth of a prior conviction allegation at the same time it determines the defendant's guilt of the charged offense often poses a grave risk of prejudice. . . . 'Evidence that involves crimes other than those for which a defendant is being tried is admitted only with caution, as there is the serious danger that the jury will conclude that defendant has a criminal disposition and thus probably committed the presently charged offense. [Citations.]' [Citation.]" (People v. Calderon, supra, 9 Cal.4th at p. 75.)
"[H]owever, bifurcation is not required in every instance. In some cases, a trial court properly may determine, prior to trial, that a unitary trial of the defendant's guilt or innocence of the charged offense and of the truth of a prior conviction allegation will not unduly prejudice the defendant. Perhaps the most common situation in which bifurcation of the determination of the truth of a prior conviction allegation is not required arises when, even if bifurcation were ordered, the jury still would learn of the existence of the prior conviction before returning a verdict of guilty." (People v. Calderon, supra, 9 Cal.4th at p. 78.)
Defendant does not contend that the trial court erred by admitting S.'s testimony about the acts underlying the prior conviction. He does contend, however, that the conviction itself was irrelevant to guilt, inadmissible under Evidence Code section 1101 or 1108, and inadmissible under Evidence Code section 352. He concludes that the trial court should have bifurcated the trial to prevent the conviction from tainting the jury's consideration of guilt or innocence.
In People v. Wheeler (1992) 4 Cal.4th 284, the Supreme Court distinguished between the acts underlying a conviction and the conviction itself, when offered for purposes of impeachment. A conviction is relevant to impeach if it shows that the defendant has engaged in conduct involving dishonesty or moral turpitude. (Id. at pp. 295-296.) When offered for its truth, however, a conviction is hearsay. (Id. at pp. 297-298.)
A felony conviction is admissible to impeach under Evidence Code section 788, which operates as a hearsay exception. (People v. Wheeler, supra, 4 Cal.4th at p. 298.) When Wheeler was decided, there was no similar statutory exception for a misdemeanor conviction. (Ibid.) Accordingly, it stated that "the fact of conviction of a misdemeanor remains inadmissible under traditional hearsay rules when offered to prove that the witness committed misconduct bearing on his or her truthfulness." (Id. at p. 288, italics omitted.) By contrast, the acts underlying a prior misdemeanor conviction are admissible to impeach. (Id. at pp. 291-295.)
The Supreme Court held later, however, that Wheeler does not bar the introduction of a defendant's guilty plea. This is because a guilty plea is an admission by the defendant and is therefore admissible under the hearsay exception for the admission of a party (Evid. Code, § 1220). (People v. Lee (2011) 51 Cal.4th 620, 650-651.)
Moreover, after Wheeler was decided, the Legislature enacted Evidence Code section 452.5. It provides that "[a]n official record of conviction certified in accordance with subdivision (a) of Section 1530 . . . is admissible under Section 1280 to prove the commission . . . of a criminal offense . . . ." (Id., subd. (b)(1).) Thus, it, too, acts as a hearsay exception; it permits the introduction of a certified record of conviction to prove the acts underlying the offense.
Here, then, both defendant's guilty plea and the certified record of the conviction were admissible under hearsay exceptions to prove the fact that defendant had committed a lewd act. Admittedly, S. was able to testify to this. The People, however, were not limited to S.'s testimony. Even if S. had not testified, they could have used the certified record of conviction to prove that defendant had committed a prior sexual offense against a child. Once S. did testify, they were entitled to corroborate her testimony by showing that defendant had admitted and had been convicted of the same conduct to which she testified.
The trial court could reasonably find that, when used for this purpose, the evidence was neither unduly prejudicial nor cumulative. In fact, "[e]vidence of uncharged crimes is particularly prejudicial if 'defendant's uncharged acts did not result in criminal convictions' because 'the jury might have been inclined to punish defendant for the uncharged offenses . . . .' [Citation.]" (People v. Case (2018) 5 Cal.5th 1, 41.) Accordingly, evidence that a prior offense did result in a conviction ordinarily reduces any potential prejudicial effect. (People v. Jones (2011) 51 Cal.4th 346, 371-372.)
Defendant argues that Evidence Code section 1108 does not allow a prior conviction to be used to "bolster the credibility of the victim of the uncharged offense." Ah, but it does. It allows any otherwise admissible evidence "of the defendant's commission of another sexual offense" to be used to show propensity. Thus, the victim of the prior sexual offense can testify about it. But any other witness to the sexual offense can also testify about it. And, as discussed, the prosecution can introduce documentary evidence of it. Obviously, when the prior sexual offense is shown both by the victim's testimony and by documentary evidence, each has the secondary effect of corroborating the other. By corroborating the victim, however, the documentary evidence simply proves all the more strongly that the defendant did commit the prior sexual offense and therefore has the relevant propensity, as Evidence Code section 1108 permits.
Admittedly, the prosecution introduced evidence of the prior conviction that went beyond just the "record of conviction" as defined in Evidence Code section 452.5. For example, it introduced evidence of defendant's prison "chronos," which showed that his parole had been revoked. These were not admissible at trial under Evidence Code section 452.5, although they would have been admissible to prove up the priors in a bifurcated proceeding under section Penal Code section 969b. However, defense counsel did not object to this evidence and did not specify it in his bifurcation motion. Had he done so, the prosecution would have had the option of proceeding without it.
Moreover, portions of the record of the prior conviction were not particularly relevant, such as the evidence that defendant had initially been charged with two more sexual offenses against a child, plus an on-bail enhancement. Once again, however, defense counsel never objected specifically to this evidence on this ground. Had he done so, the prosecution would have had an opportunity to "sanitize" it.
In any event, we see no reasonable likelihood that any such portions actually prejudiced defendant. Once it was shown that defendant had previously molested a child, the allegation (later dismissed) that he did so while on bail and the recital that his parole was revoked (for unspecified reasons) did not add any ponderable prejudice. Likewise, once S. testified that defendant molested her twice, the jury would not be surprised to learn that he had been charged with more than one sexual offense as a result. We also note that the expert witness largely did not mention (or at least did not dwell on) these portions of the evidence.
In sum, then, the trial court properly admitted evidence of the prior conviction as evidence of guilt. Accordingly, it also properly ruled that evidence of the prior conviction was cross-admissible in the guilt trial. Because the jury would have learned of the prior conviction at the guilt trial in any event, the trial court did not abuse its discretion by refusing to bifurcate the trial on the prior conviction allegations.
Defense counsel never argued that any particular portions of the evidence of the prior conviction were inadmissible at the guilt trial. If he had, the trial court could have reserved those portions for a brief, bifurcated continuation of the trial on the prior conviction allegations. Alternatively, however, it could also have concluded that those portions, standing alone, were not so prejudicial as to require any bifurcation at all.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. FIELDS
J.