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People v. Bell

Court of Appeals of California, First Appellate District, Division One.
Nov 18, 2003
A101282 (Cal. Ct. App. Nov. 18, 2003)

Opinion

A101282.

11-18-2003

THE PEOPLE, Plaintiff and Respondent, v. ALBERT BERNARD BELL, Defendant and Appellant.


Defendant Albert Bernard Bell was convicted after a jury trial of two counts of aggravated sexual assault on a child and one count of continuous sexual abuse of a child. The alleged victim was defendants 8-year-old daughter.

Defendant contends the trial court erred in admitting testimony that he had raped his 14-year-old female cousin 10 years earlier. We find that the evidence was properly admitted under Evidence Code section 1108, and affirm the judgment.

BACKGROUND

Defendant was charged by felony complaint with aggravated sexual assault of a child involving sodomy (Pen. Code, § 269, subd. (a)(3), count I); aggravated sexual assault of a child involving oral copulation (§ 269, subd. (a)(4), count II); and continuous sexual abuse of a child (§ 288.5, subd. (a), count III). Count III alleged that defendant engaged in three or more acts of substantial sexual conduct within the meaning of section 1203.066, subdivision (b). The complaint also alleged that defendant had a prior conviction pursuant to section 667.5, subdivision (b).

Prosecution Case

Defendants daughter, A.B., was born in 1992. She had been raised in Oakland by defendants aunt from the age of 10 months. She saw defendant on the weekends and knew he was her father. During the summer of 2000, A.B. lived with defendant, defendants father, and her brother and sister. A.B. returned to live with defendants aunt when school started in the fall of 2000.

Defendant picked up A.B. from his aunts home on the day before Thanksgiving in 2000. That night, defendant took A.B. into the basement of his fathers house, where he lived, and sodomized her. A.B. was crying and told defendant to stop because it hurt. Defendant held his hand over her mouth, telling her to "[b]e quiet." He repeated, "Its almost over, its almost over . . . ." This incident lasted about three minutes.

Defendant returned A.B. to his cousin K.M.s home on Thanksgiving Day at about 2:00 p.m. A.B. did not appear upset, withdrawn or bruised. The following Sunday, A.B. described the molestation to defendants aunt. A.B. had told her "the same thing" sometime in the summer, but she had not paid close attention to it. The aunt called K.M., who immediately picked up A.B. and took her to the hospital. A.B. told K.M. that defendant "stuck his thing in her bottom" and that he said if she told anyone "he would get her."

Registered nurse Lisa Lawis-Javar examined A.B. at the hospital. A.B. had "anal relaxation or laxity," meaning that her anus opened involuntarily in less than 30 seconds with no stool in the rectal vault. This was consistent with prior anal trauma. In A.B.s case, her anus opened involuntarily in 20 seconds. Nurse Lawis-Javar also noticed thickening in A.B.s hymenal ring. Although the thickening could be associated with hormonal changes, Lawis-Javar thought that A.B.s hymen was more thickened than she would have expected for a child A.B.s age. The thickened hymen was consistent with multiple digital penetrations over time. Nurse Lawis-Javar had been told that A.B. had a playground injury in 1997. This prior "straddle injury" caused a blood blister on A.B.s labia; however, it was not significant to Nurse Lawis-Javars findings with respect to A.B.s hymen and anus.

A.B. testified that defendant sodomized her more than 10 times during the summer that she lived with him. She could not recall whether the first time was during the school year or the summer, but it happened in the basement at night.

Sometime before Thanksgiving 2000, A.B. went to defendants house. A.B. and her brother slept on the floor of the dining room area with some blankets. After she fell asleep, defendant woke A.B. and took her outside to a blue truck. Defendant told her to be quiet and then sodomized her. A.B. screamed because "it hurt really bad" when defendant put his penis in her "butt." It lasted about three minutes. A.B. said defendants penis went "in and out" about seven times.

A.B. also described an incident in the summer when defendant forced her to orally copulate him while they were in a white car. They were returning to his aunts house. Defendant made A.B. "suck [his penis] again and again." Defendant put some lotion on his penis and moved his hand up and down on it. He then made A.B. suck his penis. "Some white stuff" came out of defendants penis, and defendant tried to make A.B. "suck it." This happened many times. A.B. also testified that defendant sodomized her multiple times.

On four occasions, defendant touched A.B.s vagina. Defendant put his hands under A.B.s clothes and touched the outside of her vagina. The first time, A.B. thought she was eight. It happened in the basement. A.B. also described an occasion where defendant put his finger inside her vagina.

Prior Sexual Offense Evidence

J.B., defendants cousin, visited her family in California during the summer of 1989. She was 14 years old at the time. When she and defendant were alone in his house, defendant asked J.B. to help him clean up his room. He told her to look out the window at a girl, so J.B. leaned across the bed next to the window and looked out.

Defendant started rubbing J.B.s buttocks with his hand. She asked him to stop, but he continued rubbing and said, "Its okay." When J.B. tried to get off the bed, defendant pushed her down on the bed. He pulled down her skirt and stockings and unzipped his pants. J.B. told defendant to stop, but he did not. Defendant raped her. During the rape, defendant repeatedly said, "Its going to be okay." The rape ended after another of J.B.s cousins began knocking on the door. Defendant told J.B. to go to the bathroom and clean herself up. J.B. was bleeding and had "yellow stuff" coming out of her. Later, defendant told J.B. not to tell anyone what had happened. J.B. told a close cousin about the incident one or two days later.

Defense Case

Defendant testified that he pleaded guilty to unlawful sexual intercourse with a minor as a result of the encounter with J.B. in 1989 and was placed on probation. He went to prison for a burglary conviction and was paroled in 1999. In the summer of 2000, defendant was living at his fathers home and his girlfriends house, and was caring for A.B. and her brother and sister. He and the three children stayed at his girlfriends house on Thanksgiving Eve 2000. A.B.s brother also testified that he and his sisters stayed at the girlfriends home that night.

Defendant denied ever touching A.B. in an inappropriate manner. He denied ever being in the basement with A.B. or taking her into a blue truck and sodomizing her. He also denied having A.B. orally copulate him in his car while driving on the freeway. While living with his father, defendant frequently put things in the basement for storage, and each time his father had to open the door with his key. The basement was locked at all times, and only defendants father had a key.

Defendants father testified that he never saw or heard anything unusual occur between defendant and defendants children. Defendant owned a white car but never had a blue truck. There was a blue van abandoned in front of his property in October 2000, but he did not recall the van being there in November 2000. Defendant brought all three children over to the fathers home at other times in November 2000, but not on Thanksgiving Eve.

Verdict and Sentencing

The jury found defendant guilty of all three counts and found the allegation of substantial sexual conduct true. In a bifurcated proceeding, the trial court found the prior conviction allegation true. It struck the conviction for count III on motion of the prosecution and sentenced defendant to consecutive 15-years-to-life sentences for counts I and II, and an additional year for the prior conviction allegation, for a total sentence of 31 years to life in prison. This timely appeal followed.

DISCUSSION

Defendant contends the trial court improperly admitted J.B.s testimony regarding the sexual assault that occurred in 1989, and asserts that admission of this evidence violated his federal right to due process.

Evidence Code section 1108, subdivision (a), provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible by Section 352." In enacting section 1108, the Legislature " `declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the witness. [Citation.]" (People v. Soto (1998) 64 Cal.App.4th 966, 983.)

However, in applying Evidence Code section 1108, the trial courts discretion to exclude such "propensity" evidence under Evidence Code section 352 provides an essential safeguard: "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 defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (People v. Falsetta (1999) 21 Cal.4th 903, 917.) On appeal, we will not disturb the trial courts exercise of discretion to admit prior offense evidence "unless the court acted in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Yovanov (1999) 69 Cal.App.4th 392, 406.)

Defendant argues that the 1989 incident involving J.B. was of little probative value because it was dissimilar to and remote in time from the offenses for which he was on trial. Defendant emphasizes the following distinctions: (1) the prior offense involved a post-pubescent 14-year-old; the charged offenses involved a pre-pubescent 8-year-old girl; (2) the prior offense involved intercourse; the charged offenses were for oral, anal, and digital sex acts; (3) the prior offense occurred 11 years before the charged offenses, at a time when the defendant was only 21.

Defendant likens this case to People v. Harris (1998) 60 Cal.App.4th 727 (Harris). Harris was a mental health nurse accused of taking sexual liberties with two patients in 1995. (Id. at pp. 727, 730—732.) One of the victims was incapacitated at the time Harris was alleged to have touched and fondled her, and the other had engaged in consensual sex with Harris a few days before he forced himself on her. (Id. at pp. 731—732.) Harris claimed in his defense that the first patient had hallucinated the sexual assault while the second had consented to have sex with him. (Id. at p. 732.)

More than 20 years earlier, Harris had been prosecuted for an attack on a female resident of his apartment building. Harris had entered her apartment at night, beaten her unconscious, and inflicted extensive injuries to her vagina and rectum with a sharp instrument. (Harris, supra, 60 Cal.App.4th at p. 733.) The defendant had been found hiding nearby with blood on his thighs and penis. (Ibid.) Harris had been convicted of first degree burglary with infliction of great bodily injury in connection with these events. (Id. at p. 735.) During Harriss trial on the 1995 charges, the prosecution put a redacted description of the prior crime in evidence, recounting the victims appearance and injuries when the police arrived and the fact that Harris had been found nearby with blood on his clothes and penis. (Id. at pp. 734—735.) The jury convicted Harris of several sexual offenses against the two patients. (Id. at p. 727.)

The Court of Appeal reversed. It held that evidence of the 1972 attack should have been excluded because that evidence was "remote, inflammatory[,] nearly irrelevant and likely to . . . distract [the jury] from the consideration of the charged offenses." (Harris, supra , 60 Cal.App.4th at p. 741.) In discounting the evidences probative value, the appellate court emphasized the following factors: (1) the 1972 offense involved an unexplained outburst of sexual violence directed against a stranger whereas the current charges accused Harris of exploiting his position as a caregiver to obtain sexual gratification; (2) although the crimes were asserted to be similar in that all three alleged victims were females in their "20s or 30s," most victims of sexual assault in fact meet the same description; (3) the prior crime was remote in time. (Id. at pp. 738—741.) Based on these factors, the appellate court concluded that evidence of the prior crime did not bolster the credibility of Harriss current accusers nor detract from the evidence impeaching their stories. (Id. at p. 740.)

On the issue of potential prejudice, the court found the prior crime evidence extremely inflammatory because it involved much more egregious conduct and injuries than the charged offenses. (Harris, supra, 60 Cal.App.4th at p. 738.) Moreover, the jury heard a truncated description of the crime, and learned that Harris had only been convicted of burglary with infliction of great bodily injury for committing it. (Id. at pp. 738—739.) Thus, the prior offense evidence might have caused jurors to speculate improperly about the true nature of the crime and whether Harris had suffered sufficient punishment for committing it. (Ibid.)

We do not find Harris persuasive in the context of this case. Here, the defendants prior crime was neither drastically more serious in comparison to the charged offenses nor was it of a wholly different nature. To the contrary, the testimony concerning defendants rape of J.B. was far less inflammatory than evidence that defendant had forced his 8-year-old daughter to repeatedly engage in sex acts with him over an extended period of time. At the same time, the charged and prior offenses bore the overriding similarity that both alleged victims were young, female relatives of defendants.

The willingness to commit sexual offenses against young children, much less against young relatives, is not common to most individuals. (See People v. Callahan (1999) 74 Cal.App.4th 356, 367.) Evidence of defendants prior sexual offense against another underage relative is for that reason rationally probative of his willingness to commit such crimes against his child. (I bid.) Moreover, sex offenders need not be "specialists" who invariably engage in the same type of conduct with the same type of victim. (Id. at p. 368.) Thus, the fact that the victims differed in age or that the defendant engaged in different sexual acts with them does not so diminish the probative force of the evidence that it must be excluded. In addition, the 10-year gap between the current and charged offenses also does not fatally impair its probative value. (Cf. People v. Frazier (2001) 89 Cal.App.4th 30 [15- or 16-year gap between prior and charged offense].) In this case, unlike Harris, it cannot be convincingly argued that evidence of defendants sexual assault on J.B. lacked any significant probative value or did nothing to enhance the credibility of A.B.s testimony.

Defendant concedes that the prior offense testimony in this case was not as inflammatory as in Harris. This is a crucial distinction for purposes of Evidence Code section 352. The risk of jury distraction is greatly diminished when, as in this case, the current offense is much more serious than the old offense. Defendant claims prejudice in this case because after hearing J.B. testify that defendant raped her, the jury learned that he was convicted of the less serious offense of statutory rape. Aside from the fact that it was the defense, not the prosecution, that elicited testimony about defendants guilty plea and sentence, we do not find it very likely that the jury would have been so preoccupied with defendants punishment for raping a cousin 10 years earlier that it could not properly focus on whether he had committed repeated sexual assaults on his daughter.

Taking into account all of the factors made relevant under Evidence Code section 352, we find no abuse of discretion in the admission of J.B.s testimony. As defendant anticipates, we also reject his federal due process claim. Under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, we are bound by the decision of this states highest court in People v. Falsetta, supra, 21 Cal.4th 903, which upheld Evidence Code section 1108 against the identical due process claim defendant makes here.

DISPOSITION

The judgment is affirmed.

We concur, Marchiano, P.J., Swager, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise indicated.


Summaries of

People v. Bell

Court of Appeals of California, First Appellate District, Division One.
Nov 18, 2003
A101282 (Cal. Ct. App. Nov. 18, 2003)
Case details for

People v. Bell

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ALBERT BERNARD BELL, Defendant…

Court:Court of Appeals of California, First Appellate District, Division One.

Date published: Nov 18, 2003

Citations

A101282 (Cal. Ct. App. Nov. 18, 2003)