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People v. Allen

California Court of Appeals, Fifth District
Jun 18, 2009
No. F055410 (Cal. Ct. App. Jun. 18, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County. Super. Ct. No. MF007944A Clarence Westra, Jr., Judge.

J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

Kane, J.

Appellant Leslie Raymond Allen appeals from his conviction of nine felonies, including six counts of lewd and lascivious acts upon a child under age 14 in violation of Penal Code section 288, subdivision (a). Appellant contends that the statute of limitations expired as to the six counts of violating section 288, subdivision (a), and that the legislative extension of the statute of limitations regarding such crimes cannot be applied to his case because of the constitutional prohibition against ex post facto laws. We disagree and conclude that all six counts were timely filed. Finding no error on this or any other issue raised by appellant, we affirm the judgment of the trial court.

Unless otherwise indicated, all further statutory references are to the Penal Code.

FACTS AND PROCEDURAL BACKGROUND

On August 2, 2007, a complaint was filed by the Kern County District Attorney against appellant. A preliminary hearing was conducted on November 2, 2007, following which the trial court ordered appellant to be held to answer the charges against him.

On November 13, 2007, the Kern County District Attorney filed its information against appellant. On April 21, 2008, the information was amended in certain respects not pertinent to this appeal. During trial, the information was further amended to expand the time periods that appellant allegedly perpetrated the acts of sexual molestation against children. Counts 1 through 6 specifically charged appellant with lewd and lascivious acts upon children under age 14 in violation of section 288, subdivision (a). There were two alleged victims. Counts 1 through 3 were for acts committed upon victim S.A., appellant’s daughter, between September 18, 1996 and September 17, 2002. Counts 4 through 6 were for acts committed upon victim M.B., a friend of appellant’s daughter, between November 11, 1997 and May 31, 2001. Appellant was charged in count 7 with possession of child pornography (§ 311.11, subd. (a)), in count 8 with possession of a firearm by a convicted felon (§ 12021, subd. (a)(1)), and in count 9 with possession of ammunition by a convicted felon (§ 12316, subd. (b)(1)). The amended information further alleged that appellant had two prior felony convictions for purposes of the “Three Strikes” law, and a prior serious felony for purposes of section 667, subdivision (a). The amended information alleged an additional enhancement based on multiple victims of the child molestation crimes. (§ 667. 61, subd. (e)(5).) Appellant pled not guilty and denied the enhancement allegations. Jury trial began in Kern County Superior Court on April 22, 2008.

The Three Strikes law refers to the provisions set forth in section 667, subdivisions (b) through (i), and section 1170, subdivisions (a) through (d).

We now briefly summarize the factual matters that were presented to the jury. For convenience, we have recapitulated much of our summary from the parties’ own statements of facts.

Appellant’s daughter, S.A., was born on September 18, 1988. S.A. lived with her father in his house in California City until she was 16 years old. Her older brother, E., also lived there during that time. Beginning when S.A. was eight years old (in 1996) and continuing until she moved out at age 16 (in 2002), appellant regularly touched her breasts and vagina. Appellant would commit these acts when E. was not home. Appellant touched S.A.’s chest with his hand and mouth, and he touched her vagina with his hand and penis. Sometimes he would grab S.A.’s hand and touch his penis with it. Appellant had a computer in his living room with a camera, and he took photos and videos of S.A. with her shirt off. On at least one occasion, appellant had S.A. perform oral copulation on him.

M.B. was S.A.’s best friend and lived nearby. M.B. was born on November 11, 1989. Beginning when M.B. was nine years old (in 1998) until she moved away to Florida at age 12 (in 2001), she spent much of her free time at S.A.’s house, and M.B. regularly slept over at S.A.’s house every other weekend. Whenever M.B. came to S.A.’s house to spend the night, appellant would touch M.B.’s breasts or put his mouth on her breasts. M.B. denied that appellant touched her vagina, although S.A. alluded to incidents when she and M.B. were showering that appellant came in and touched them on the “bad parts,” by which S.A. meant the vagina and breasts.

When appellant engaged in this type of conduct he would call himself “Professor Huggums.” Appellant took many photos and videos of S.A. and M.B. with their shirts off. For some photos, appellant directed S.A. to touch M.B.’s chest.

During a search of appellant’s residence on July 31, 2007, officers found dozens of computer disks containing hundreds of sexually explicit images, including videos and photographs. Nine disks contained sexually explicit images involving children, including S.A. and M.B. Selected images from those disks were introduced into evidence at trial. In some of the photographs or videos, appellant is touching or kissing S.A. and/or M.B on their breasts. Several of the images show S.A. in various stages of undress or naked. Another image shows S.A. and M.B. sitting on appellant’s lap with his hand inside the front waistband of M.B.’s pants. One video shows appellant being orally copulated by S.A.

In addition to the images of S.A. and M.B., the computer disks contained sexually explicit photographs and videos of other young girls. These images were apparently downloaded from the internet.

While searching appellant’s residence, officers also found a Stier brand bolt-action rifle in the hall closet. Also found in appellant’s residence were boxes of ammunition, including one box of.30-30 Winchester rifle ammunition and one box of.30-06 Springfield ammunition.

After appellant was arrested, he was interrogated by California City Police Officer Jeffrey Takeda. The interview was tape recorded and the tape was played for the jury. During the interview, appellant was shown the photograph of S.A. and M.B. sitting on appellant’s lap with appellant’s hand underneath the waistband of M.B.’s pants, and also the photograph of M.B. sitting on appellant’s lap with his hand on her breast. He eventually identified both S.A. and M.B. in the photographs, and admitted that he took the photographs at his home. In the video showing him being orally copulated by S.A., appellant could not remember whether it was S.A. or M.B. He later denied being orally copulated by any girl. Appellant said he did not have sexual intercourse with S.A. and M.B. because he did not want to risk getting them pregnant. When Officer Takeda turned off the tape recorder, appellant said, “[Y]ou’re innocent until proven guilty and I’ve been found guilty.”

On May 22, 2008, appellant was sentenced to an aggregate term of 345 years to life in state prison, plus a determinate term of 30 years. The indeterminate term was based on consecutive terms of 45 years to life for each of counts 1 through 6, plus consecutive terms of 25 years to life for each of counts 7 through 9. The determinate term was based on a five-year sentence enhancement for the prior serious felony conviction alleged in six of the counts.

On May 27, 2008, appellant timely filed his notice of appeal.

DISCUSSION

I. Statute of Limitations

Appellant contends that his conviction on counts 1 through 6 for violation of section 288, subdivision (a), must be dismissed because the applicable statute of limitations expired before the district attorney filed its complaint against him on August 2, 2007. Appellant further contends that the extended 10-year statute of limitations cannot be applied to him because it would violate the ex post facto clause of the United States Constitution. We reject both of these arguments. As explained below, the original six-year statute of limitations was extended to 10 years before it would have expired, therefore the extended statute of limitations did not violate the ex post facto clause. Applying the 10-year limitation (§ 801.1, subd. (b)) under the particular facts of this case, all six counts were timely. Moreover, the Legislature enacted a further extension allowing prosecution to be commenced prior to the victim’s 28th birthday (§ 801.1, subd. (a)), by which all six counts were timely. We now explain.

A. Time Frame of Appellant’s Offenses

The amended information alleged in counts 1 through 3 that appellant committed lewd and lascivious conduct against S.A. between September 18, 1996 and September 17, 2002, and in counts 4 through 6 that appellant committed lewd and lascivious conduct against M.B. between November 11, 1997 and May 31, 2001. In his closing argument, the prosecutor set out specific time frames for each of these counts. As to the counts in which S.A. was the victim, the prosecutor explained that count 1 was for any molestation between September 18, 1996 and September 17, 1998 (when she was eight and nine years old); count 2 was for any molestation between September 18, 1998 and September 17, 2000 (when she was 10 and 11 years old); and count 3 was for any molestation between September 18, 2000 and September 17, 2002 (when she was 12 and 13 years old). As to the counts in which M.B. was the victim, the prosecutor explained that count 4 was for any molestation between November 11, 1997 and November 10, 1999 (when she was eight and nine years old); count 5 was for any molestation between November 11, 1999 and November 10, 2000 (when she was 10 years old); and count 6 was for any molestation between November 11, 2000 and May 31, 2001 (when she was 11 and 12 years old).

We use the term molestation here as synonymous with lewd and lascivious conduct by appellant in violation of section 288, subdivision (a).

S.A.’s 10th birthday was the next day, September 18, 1998.

M.B.’s 10th birthday was the next day, November 11, 1999.

B. Extension of Applicable Statute of Limitations to 10 Years

In his appeal, appellant contends that the statute of limitations was only six years pursuant to section 800. Respondent counters that the statute of limitations was extended to 10 years pursuant to a legislative provision that was formerly set forth in section 803 but is now located in section 801.1, subdivision (b). Respondent is correct.

Historically, because a violation of section 288, subdivision (a), may be punished by an upper term of eight years, the statute of limitations for that crime was six years. (§ 800.) That was true until January 1, 2001, when the statute of limitations governing certain sexual crimes was extended from six to 10 years by the enactment of what was then section 803, subdivision (h)(1). (In re White (2008) 163 Cal.App.4th 1576, 1580.) The new statute provided: “Notwithstanding the limitation of time described in section 800, the limitations period for commencing prosecution for a felony offense described in subparagraph (A) of paragraph (2) of subdivision (a) of [former] section 290, where the limitations period set forth in Section 800 has not expired as of January 1, 2001, … shall be 10 years from the commission of the offense.…” (Stats. 2000, ch. 235, § 1.) Section 288 was included among the crimes listed in former subdivision (a)(2)(A) of section 290, to which the 10-year statute of limitations expressly applied. (Stats. 2000, ch. 649, § 2.)

In 2007, section 290 was amended and the list of sexual crimes previously described in section 290, subdivision (a)(2)(A) was moved to subdivision (c), and the 10-year statute of limitations (by then located at § 801.1) was concurrently amended to reflect this change. (Stats. 2007, ch. 579, §§ 8 & 40.)

By amendment effective in 2002, the Legislature moved the 10-year statute of limitations from section 803, subdivision (h)(1), to section 803, subdivision (i)(1). By amendment effective in 2005, the Legislature again moved the statutory home of the 10-year statute of limitations to its present location in section 801.1. (In re White, supra, 163 Cal.App.4th at pp. 1580-1581 [detailing legislative history].) These series of amendments involving the 10-year provision were all without substantive textual change from the version that originally became effective January 1, 2001. (Id. at pp. 1580-1583.) The current version of the same 10-year statute of limitations is set forth in section 801.1, subdivision (b), which provides as follows: “Notwithstanding any other limitation of time described in this chapter, if subdivision (a) does not apply, prosecution for a felony offense described in subdivision (c) of Section 290 shall be commenced within 10 years after commission of the offense.” Thus, the 10-year statute of limitation for violation of section 288 has been continuously in effect since January 1, 2001.

Subdivision (a) of section 801.1 provides: “Notwithstanding any other limitation of time described in this chapter, prosecution for a felony offense described in Section 261, 286, 288, 288.5, 288a, or 289, or Section 289.5 … that is alleged to have been committed when the victim was under the age of 18 years, may be commenced any time prior to the victim’s 28th birthday.” This subdivision of the statute became effective on January 1, 2006. (Stats. 2005, ch. 479 (S.B. 111), § 2.)

Appellant argues that application of the extension from six to 10 years would violate the ex post facto clause. Not so. Although legislation may not be applied to revive an already expired statute of limitations in a criminal case (Stogner v. California (2003) 539 U.S. 607, 618-619), the ex post facto clause of the United States Constitution does not prevent the state from extending time limits for the prosecution of offenses that are not yet time-barred. (In re White, supra, 163 Cal.App.4th at p. 1583; People v. Terry (2005) 127 Cal.App.4th 750, 775-776; People v. Vasquez (2004) 118 Cal.App.4th 501, 504; People v. Robertson (2003) 113 Cal.App.4th 389, 393-394.)

In 2004, the Legislature added section 803.6 (Stats. 2004, ch. 368, § 3), which provides: “(a) If more than one time period described in this chapter applies, the time for commencing an action shall be governed by that period that expires the latest in time. [¶] (b) Any change in the time period for the commencement of prosecution described in this chapter applies to any crime if prosecution for the crime was not barred on the effective date of the change by the statute of limitations in effect immediately prior to the effective date of the change. [¶] (c) This section is declaratory of existing law.”

Here, the earliest possible molestation offense under the information was September 18, 1996. Therefore, on January 1, 2001, when the 10-year statute of limitations went into effect, the original six-year period had not yet expired on any of the six counts charging violation of section 288, subdivision (a). Accordingly, the 10-year statute of limitations (now numbered as section 801.1, subd. (b)) applied as an extension of the statutory period concerning counts 1 through 6 and no violation of the ex post facto clause resulted therefrom.

C. Counts 1 Through 6 Were Not Time-Barred

The prosecution has the burden to prove that a crime occurred within the applicable statute of limitations. (People v. Linder (2006) 139 Cal.App.4th 75, 84.) However, because the statute of limitations is not an element of the offense, the prosecution need only demonstrate that the crime occurred within the applicable statute of limitations by a preponderance of evidence. (Id. at p. 85.)

If the charging allegations indicate a case is potentially time-barred, a person convicted of a charged offense may raise the statute of limitations at any time. (People v. Williams (1999) 21 Cal.4th 335, 341.) When the statute of limitations is raised for the first time on appeal, “[i]f the court cannot determine from the available record whether the action is barred, … it should remand for a hearing” on that issue. (Ibid., fn. omitted.) As aptly summarized in a later appellate decision, “Williams concluded the proper method for evaluating a statute of limitations defense, raised for the first time on appeal based upon a facially deficient pleading, is to review the record or, if necessary, to remand the case to the trial court for factual findings on the statute of limitations question.” (People v. Smith (2002) 98 Cal.App.4th 1182, 1191 (Smith).) In reviewing such cases, the question on appeal is “whether the record demonstrates that the crime charged actually fell within the applicable statute of limitations.” (Id. at p. 1193.)

1. Timeliness Under 10-year Period of Section 801.1, Subdivision (b)

We now consider the timeliness of counts 1 through 6 under the 10-year statute of limitation. To begin our review, we must ascertain from the record when the prosecution of this case commenced for statute of limitations purposes. Under section 804, the mere filing of a criminal complaint (prepreliminary hearing) “does not generally commence the prosecution of a felony for statute of limitation purposes and, unless a formal arrest warrant issues … the statute of limitation ordinarily continues to run until an information is filed.” (People v. Terry, supra, 127 Cal.App.4th at p. 764, italics added; § 804.) In the present case, respondent concedes there is no evidence in the record indicating that a formal arrest warrant was issued for appellant’s arrest. Accordingly, the statute of limitations continued to run until the information was filed on November 13, 2007. Given the 10-year statute of limitations for the alleged violations of section 288, subdivision (a), each of counts 1 through 6 are timely if the offenses were committed on or after November 13, 1997.

A criminal complaint was filed against appellant on August 2, 2007. Appellant’s opening brief assumed that August 2, 2007 was the date that prosecution of the felony charges commenced. On the record before us, we agree with respondent that the date the information was filed—November 13, 1997—was the correct date.

Under the specific time frames indicated by the prosecutor in closing argument as to counts 1 through 6, it is readily apparent that four of the six counts came within the 10 year statute of limitations. The earliest dates of the offenses in counts 2, 3, 5 and 6 were after November 13, 1997 (see part A ante); therefore, these four counts were timely.

Evaluation of counts 1 and 4 is more complicated, but ultimately leads to the same conclusion. The prosecutor informed the jury that count 1 related to any act of molestation against S.A. between September 18, 1996 and September 17, 1998, a 24-month period. Thus, as to count 1, 10 months of the 24-month period indicated by the prosecutor fell within the statute of limitations period (i.e., November 13, 1997 to September 17, 1998). Regarding count 4, the prosecutor told the jury that this count related to any act of molestation against M.B. between November 11, 1997 and November 10, 1999, a 24-month period. Thus, as to count 4, all but the first two days of the alleged time frame was within the statute of limitations period (i.e., November 13, 1997 to November 10, 1999).

With these time periods in mind, we now review the available record regarding counts 1 and 4. With respect to count 1, S.A. testified that when she was about 8 years old (approximately in the third grade), she met M.B. and they immediately became friends. Within four or five weeks of first meeting each other, they began to spend a considerable amount of time together, including spending the night on weekends. Every other weekend, when M.B. would come over to S.A.’s house to spend the night, appellant would touch S.A. and M.B. on the breast or vagina. S.A. testified that a brief respite occurred when she was 10 years old, because she was taken to live in a foster home, but when she returned to live with appellant at age 11, the molestations continued as before. For purposes of count 1, S.A.’s testimony established regular and repeated acts of molestation against her during the time frame of November 13, 1997 to September 17, 1998—i.e., within the ten-year statute of limitations.

Earlier in her testimony, S.A. was apparently confused or uncertain about how old she was when appellant began to touch her private parts, indicating it may have been when she was in fifth or sixth grade, but also testifying she was eight or nine years old in fifth grade. Her testimony became more definite in regard to the timing of events once it was correlated to her friendship with M.B., who was also a victim.

With respect to count 4, M.B. testified that when she was approximately nine years old and still in the third grade, she met and became friends with S.A. Within months of meeting each other, M.B. started to spend the night at S.A.’s house every other weekend. Whenever M.B. would spend the night at S.A.’s house, appellant would touch her inappropriately on the chest area. She testified it would happen “every time I spent the night,” or every two weeks. This continued from the time M.B. was about nine or 10 years old until she was nearly 13 years old, when she moved to Florida. For purposes of count 4, this testimony by M.B. showed there were regular and repeated acts of molestation against her during the period of November 13, 1997 to November 10, 1999, which acts of molestation were within the 10-year statute of limitations.

On this record, we conclude that counts 1 and 4 were timely under section 801.1, subdivision (b). The evidence overwhelmingly demonstrated that appellant regularly, repeatedly and consistently sexually molested S.A. and M.B. every other weekend, and that these lewd acts continued to be perpetrated every two weeks against the two girls from the time they were approximately nine years of age onward. Appellant introduced no evidence at trial and did not challenge the timing or frequency of the alleged conduct, but merely argued to the jury that he lacked the requisite intent for arousal to be found guilty of committing lewd and lascivious acts. Given this state of the evidence, the jury had two possible conclusions: either all of the offensive conduct occurred, or none, based on credibility. Since the jury clearly believed the testimony of the two victims, which proved by a preponderance of the evidence that appellant perpetrated regular, biweekly acts of molestation against S.A. and M.B. within the time parameters of counts 1 and 4 and the 10-year statute of limitations, we conclude these counts were timely. (See Smith, supra, 98 Cal.App.4th at pp. 1189-1191.)

We believe these facts distinguish the present case from People v. Angel (1999) 70 Cal.App.4th 1141. In that case, two counts of molestation allegedly occurred within the month of July in 1989. The statute of limitations barred prosecution of acts prior to July 20, 1989. Although the victim testified that several molestations took place in that month, it was simply unclear whether the acts that occurred in July were before or after the statute of limitations date. (Id. at pp. 1146-1147.)

In Smith, supra, 98 Cal.App.4th 1182, the record contained overwhelming evidence that “[the] defendant committed all of the hundreds of acts described by [the] victim with the requisite intent, including the multitude of described acts which occurred regularly between October 26, 1992 [the statute of limitations date], and April 20, 1996 [the outside date of the particular counts].” (Id. at p. 1190, italics added & omitted.) The defendant in Smith “did not seriously dispute that the acts occurred over the period identified by [the] victim,” but merely argued lack of requisite sexual intent. (Id. at p. 1189.) On the record before it, the Court of Appeal found the molestation counts were timely filed under section 800 or under an exception provided in former subdivision (f) of section 803. (Smith, supra,at pp. 1190-1191.) Here, although we do not consider former subdivision (f) of section 803, the record before us is in other respects comparable to Smith and we take a similar approach. For the reasons explained above, we hold that counts 1 through 6 were not barred by the 10-year statute of limitations set forth at section 801.1, subdivision (b).

Smith, supra, 98 Cal.App.4th 1182,also noted the situation before it was analogous to the issue of jury unanimity as considered in cases of repetitive acts of child molest proven by generic testimony of a pattern of conduct. (Id. at p. 1190; see People v. Jones (1990) 51 Cal.3d 294, 321-322 [where child witness testified to more acts of molestation than were charged for a given time period and the jury believed the testimony in toto, the jury’s difficulty in differentiating among the several acts of molestation did not preclude conviction on the counts charged “so long as there is no possibility of jury disagreement regarding the defendant’s commission of any of these acts”]; and see People v. Moore (1989) 211 Cal.App.3d 1400, 1414-1415 [where child molest victim described a “consistent, repetitive pattern of acts,” there was no need for prosecutor to identify a single act as a basis for the charge because “if the jury believes the defendant committed all the acts it necessarily believes he committed each specific act”].)

2. Timeliness as Measured by Victim’s 28th Birthday Under Section 801.1, Subdivision (a)

There is another basis for concluding the molestation counts were timely. On January 1, 2006, before the expiration of the 10-year limitations period that was applicable pursuant to the legislative extension effective on January 1, 2001 (see discussion ante), a further legislative extension took effect allowing the prosecution of cases for violation of section 288 and other specified crimes “committed when the victim was under the age of 18 years,” to be commenced “any time prior to the victim’s 28th birthday.” (§ 801.1, subd. (a), added by Stats. 2005, ch. 479 (S.B. 111), § 2.) Because this was an extension of the existing 10-year statute of limitation prior to the expiration thereof, the application of the increased time period does not violate the ex post facto clause. (In re White, supra, 163 Cal.App.4th 1576 at p. 1583; People v. Terry, supra, 127 Cal.App.4th at pp. 775-776.) Since the information charging appellant with six counts of violating section 288, subdivision (a) was filed prior to the victims’ 28th birthday, the counts were timely under section 801.1, subdivision (a).

Here, the earliest alleged violation of section 288 was on September 18, 1996.

In light of our conclusion that counts 1 through 6 were timely, we find it unnecessary to address respondent’s request that if we are in doubt whether counts 1 and 4 are timely, we should remand to allow a hearing in the trial court to consider whether these counts are timely under the special extension set forth at section 803, subdivision (f). We conclude no remand is necessary on the record before us.

We have addressed the limitation periods set forth in both subdivisions (a) and (b) of section 801.1, and have found this case to be timely under both provisions, even though effective January 1, 2006 (when subdivision (a) became law), the 10-year period in subdivision (b) applies only if subdivision (a) does not. (§ 801.1, subd. (b) [prefaced with “if subdivision (a) does not apply”]). Although we believe subdivision (a) to be the applicable provision here, we have reviewed the case under both provisions in an abundance of caution because it is unusual to have two extensions of a statute of limitations in a single case. Hence, even if for any reason subdivision (a) does not apply, the counts are still timely under subdivision (b).

II. Possession of Child Pornography

Appellant contends the trial court prejudicially erred when it allowed Officer Takeda to give his opinion as to the ages of the girls in the pornographic videos that were seized from appellant’s house. Appellant argues that his conviction on count 7 for possession of child pornography (§ 311.11, subd. (a)) must be reversed due to this evidentiary error, which he claims was prejudicial and violated his constitutional right to a fair trial. Appellant also contends count 7 must be reversed because of lack of sufficient evidence to support the conviction.

A. Background

During trial, the prosecutor played for jurors exhibit 3, which was a computer disk or DVD containing several videos of young girls engaging in various sex acts with adult men. Officer Takeda testified that the videos were on the computer disks that were seized from appellant’s residence. Officer Takeda was unable to identify the subjects in the videos. The prosecutor asked Officer Takeda if he had an opinion as to the age of the females in the videos. Defense counsel objected on the ground the question called for an improper lay opinion, and no expert testimony was needed because age was an issue on which the jury could form its own opinion. The objection was overruled. Officer Takeda then testified that the females in the videos “are all under the age of 18 and some of them appear to be under the age of 14 or even 12 years old.”

During in limine discussions on jury instructions, the trial court explained to counsel that Officer Takeda had been allowed to express an opinion on age as a lay witness only. Accordingly, the trial court instructed the jury regarding opinion testimony of a witness who was not testifying as an expert. Among other things, the instruction stated, “You are not required to accept an opinion, but should give it the weight, if any, to which you find it deserves.”

In closing arguments to the jury, the prosecutor argued it was “obvious” to anyone viewing the videos in exhibit 3 that the girls shown there were young children under the age of 18, and that many of them “looked like they were under the age of ten.” The prosecutor did not rely on Officer Takeda’s estimate of the girls’ ages in his closing argument, but mentioned it in passing to make sure the jury understood it was not an “expert opinion.” Moreover, the prosecutor reminded jurors that they were the ones who had to decide the question of age based on what they saw in the videos.

B. Admission of Lay Opinion Testimony Was Harmless Error and Did Not Violate Due Process

Under the opinion rule regarding nonexpert testimony, to the extent feasible witnesses are to testify to facts and leave the conclusions to the jury. (People v. Williams (1992) 3 Cal.App.4th 1326, 1332; Angelus Chevrolet v. State of California (1981) 115 Cal.App.3d 995, 1001.) An exception is allowed where the lay opinion is (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of his testimony. (Evid. Code, § 800.) In the present case, the jury had to decide based on its own observation of exhibit 3, whether the female subjects in the videos were under the age of 18. Since Officer Takeda possessed no special expertise by which to evaluate age beyond the realm of common knowledge or experience, and he observed only what the jury also observed at trial, his opinion testimony as a layman added nothing to what the jury saw firsthand in the videos. Also, it did not appear that Officer Takeda’s opinion was necessary or helpful to understanding his testimony. We therefore agree with both parties that the opinion testimony should not have been admitted. (See Evid. Code, § 800; People v. Caldwell (1921) 55 Cal.App. 280, 296 [lay opinion as to age generally may be received if the subject is not present for the jury’s own viewing and the opinion of the witness includes a description of, or acquaintance with, the subject in question].)

Nevertheless, we agree with respondent that any error in this regard was harmless under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. Under that standard for determining prejudice, an erroneous admission of evidence does not require reversal unless there is a reasonable probability that the defendant would have obtained a more favorable outcome in the absence of the error. (People v. Alvarez (1996) 14 Cal.4th 155, 216.) Here, because the jurors saw the videos for themselves, Officer Takeda’s lay opinion as to the age of the female subjects was merely superfluous to the jury’s own perception and assessment of age. Also, the prosecutor clarified that Officer Takeda’s opinion was not as an “expert” and agreed with defense counsel that “we can rely on our own opinions or judgments in determining how old these kids were.” That is, the jury was urged to consider what they saw in exhibit 3 and, based thereon, make a decision of the ages of those depicted. Finally, it was readily apparent from the videos themselves that the female subjects in the videos were much younger than age 18. For all of these reasons we conclude that the error, if any, was harmless.

For the same reasons, we reject appellant’s contention that he was deprived of a fair trial in violation of his due process rights under the Fourteenth Amendment. “[G]enerally, violations of state evidentiary rules do not rise to the level of federal constitutional error.” (People v. Benavides (2005) 35 Cal.4th 69, 91.) “[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair.” (People v. Partida (2005) 37 Cal.4th 428, 439, italics omitted.) Here, the error resulted in a witness rendering a superfluous lay opinion on a matter that the jury could fully assess for itself from observation of the videos at trial. The trial was not fundamentally unfair.

C. Substantial Evidence Supported Conviction of Possession of Child Pornography

Appellant contends there was insufficient evidence to support his conviction on count 7 for possession of child pornography in violation of section 311.11.

“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640 .) “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin, supra, at p. 331.)

Appellant argues that the video evidence, by itself, was insufficient to prove that the subjects in the videos were real minors, as opposed to computer-generated images or touched up images of adults made to look like children. We disagree.

Although it is true that a violation of section 311.11, subdivision (a), requires that a real minor be used in the child pornography (People v. Kurey (2001) 88 Cal.App.4th 840, 846), the jury was entitled to conclude from its observation of the video evidence that it portrayed actual female subjects who were under the age of 18. “Proof of age, like proof of any other material fact, can be accomplished by the use of either direct or circumstantial evidence, or both.” (Id. at p. 847). “Apparent age and actual appearance are simply forms of evidence allowable for proof of this fact.” (Id. at p. 848.) On both the issues of age and usage of real children in the sexually explicit videos, the jury could reasonably infer that the images in the videos were in fact what they plainly appeared to be. Thus, the video evidence was sufficient to establish appellant’s violation of section 311.11 in this case, particularly in the absence of any evidence to the contrary. We conclude there was substantial evidence to support the conviction on count 7.

III. Possession of Firearm by Convicted Felon

Appellant was convicted in count 8 of possession of a firearm by a convicted felon. He contends that conviction must be reversed because the trial court failed to instruct the jury sua sponte on the technical definition of a firearm. We disagree.

Section 12021, subdivision (a)(1), provides in relevant part that “[a]ny person who has been convicted of a felony … and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.” The jury was instructed with CALJIC No. 12.44, which explained that every convicted felon who has in his or her possession or control “any pistol, revolver, or other firearm” is guilty of a violation of section 12021, subdivision (a)(1). The term “firearm” is broadly defined in section 12001, subdivision (b), to mean “any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion.” That definitional language is included in an alternative instruction, CALJIC No. 12.48, which was not given to the jury.

Here, it is undisputed that a Stier bolt-action rifle was seized from appellant’s closet and the rifle was introduced into evidence. The instruction given to the jury referred to any pistol, revolver or other firearm. There is no question that a rifle would fall into the category of a traditional firearm and the jury would have clearly understood that fact. As stated in People v. Runnion (1994) 30 Cal.App.4th 852, the broad wording of section 12001, subdivision (b), was intended to incorporate nontraditional firearms within the ambit of the statute. (Id. at pp. 857-858.) “When, as here, the gun appears to be a traditional firearm, there is no need for the court to instruct the jury more expansively.” (Id. at p. 858, italics added.) We conclude the trial court did not err in failing to sua sponte instruct the jury with the full definition of the term firearm contained in the statute. And even if error occurred, which it did not, it was harmless, since a rifle obviously fits the definition set forth in section 12001, subdivision (b). (See People v. Roberge (2003) 29 Cal.4th 979, 989 [failure to instruct on technical definition harmless in light of evidence].)

IV. Possession of Ammunition by Convicted Felon

Finally, appellant contends that his conviction on count 9 for possession of ammunition by a convicted felon must be set aside because the statutory definition of the term “ammunition” is unconstitutionally vague. Not so.

“The due process concept of fair warning is the underpinning of the vagueness doctrine, which ‘bars enforcement of “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.”’ [Citations.]” (People v. Castenada (2000) 23 Cal.4th 743, 751.) “‘Due process requires fair notice of what conduct is prohibited. A statute must be definite enough to provide a standard of conduct for its citizens and guidance for the police to avoid arbitrary and discriminatory enforcement. [Citations.] “Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed.” [Citation.]’ [Citations.]” (People v. Tapia (2005) 129 Cal.App.4th 1153, 1166.)

The starting point of our analysis is “‘the strong presumption that legislative enactments “must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears. [Citations.] A statute … cannot be held void for uncertainty if any reasonable and practical construction can be given to its language.”’ [Citation.]” (People v. Morgan (2007) 42 Cal.4th 593, 605.) The fact that a statute contains “one or more ambiguities requiring interpretation does not make the statute unconstitutionally vague on its face.…” (In re Jorge M. (2000) 23 Cal.4th 866, 886.) Reasonable specificity is all that is required. (In re Sheena K. (2007) 40 Cal.4th 875, 890.)

“In order to succeed on a facial vagueness challenge to a legislative measure that does not threaten constitutionally protected conduct … a party must do more than identify some instances in which the application of the statute may be uncertain or ambiguous; he must demonstrate that ‘the law is impermissibly vague in all of its applications.’” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1201, italics omitted.) “Stated differently, ‘“[a] statute is not void simply because there may be difficulty in determining whether some marginal or hypothetical act is covered by its language.” [Citation.]’ [Citation.]” (People v. Morgan, supra, at p. 606.) Finally, a statute generally will not be found void for vagueness “‘at the behest of a defendant whose conduct falls clearly within its bounds.’” (People v. Ervin (1997) 53 Cal.App.4th 1323, 1328-1329, citing Bowland v. Municipal Court (1976) 18 Cal.3d 479, 492.)

At the time of appellant’s arrest and conviction, he could not rightfully possess firearms or ammunition under California law since he was a convicted felon. (§ 12021; see also 12021.1). As noted in District of Columbia v. Heller (2008) ___ U.S. ___ [128 S.Ct. 2783], at pages 2816-2817, the right to bear arms under the Second Amendment does not cast doubt on the “longstanding prohibitions on the possession of firearms by felons.” We reject appellant’s contention that his possession of firearms or ammunition as a convicted felon amounted to constitutionally protected conduct. In any event, it is clear that the statute under consideration is not impermissibly vague or overbroad for the reasons discussed herein.

The statute in question, section 12316, subdivision (b)(2), defines “ammunition” as follows: “For purposes of this subdivision, ‘ammunition’ shall include, but not be limited to, any bullet, cartridge, magazine, clip, speed loader, autoloader, or projectile capable of being fired from a firearm with a deadly consequence.” We reject appellant’s claim that this wording is impermissibly vague. The statute provides fair notice that “ammunition” denotes such items as bullets, cartridges and similar projectiles that are capable of being fired from a firearm with a deadly consequence. Far from being confusing or ambiguous, such a definition is entirely consistent with the commonly understood meaning of the word “ammunition” as “[p]rojectiles, such as bullets and shot, together with their fuses and primers, that can be fired from guns or otherwise propelled.” (American Heritage Dict. (4th ed. 2006) p. 60.) The statute also includes in the definition of “ammunition” particular items used to facilitate the loading of firearms—i.e., magazines, clips, speedloaders and autoloaders. (§ 12316, subd. (b)(2).) Again, we fail to see any unconstitutional vagueness in such terminology, as it reasonably identifies the specific equipment or items that will be deemed ammunition. Although appellant strains to find remote hypothetical possibilities to attack the statute’s precision, we conclude it is reasonably clear and specific.

For example, pebbles, pellets or BB’s are clearly not “ammunition” since they are not ordinarily understood as being capable of being fired from a firearm with a deadly consequence. Also, a BB gun or pellet gun is not even a firearm. (See In re Jose A. (1992) 5 Cal.App.4th 697, 700-701.) The same is true of empty or spent shells that can no longer be fired; that is, they would not be capable of being fired from a firearm with a deadly consequence, so they would not constitute ammunition.

Moreover, the items seized from appellant’s home (i.e., a box of.30-30 Winchester rifle bullets or cartridges and a box of.30-06 Springfield rifle bullets or cartridges) were clearly “ammunition” as defined in section 12136, subdivision (b)(2); therefore, the statute gave appellant fair and specific warning that his possession of these items violated the law. For all of these reasons, we conclude appellant’s claim that the statute is unconstitutionally vague is without merit.

DISPOSITION

The judgment is affirmed.

WE CONCUR: Wiseman, Acting P.J., Gomes, J.


Summaries of

People v. Allen

California Court of Appeals, Fifth District
Jun 18, 2009
No. F055410 (Cal. Ct. App. Jun. 18, 2009)
Case details for

People v. Allen

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LESLIE RAYMOND ALLEN, Defendant…

Court:California Court of Appeals, Fifth District

Date published: Jun 18, 2009

Citations

No. F055410 (Cal. Ct. App. Jun. 18, 2009)