Opinion
Santa Cruz County Super. Ct. No. F01913
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RUSHING, P.J.
Statement of the Case
A jury convicted defendant Lee Thomas Bjorn of nine counts of lewd conduct with a minor under the age of 14. (Pen. Code, § 288, subd. (a).) In addition, the jury found the facts necessary to establish that the prosecution was commenced within the extended statute of limitations set forth in former section 803, subdivision (g) (hereafter section 803(g)). The court imposed an upper term of eight years on one count and consecutive two-year terms on the other eight counts for a total sentence of 24 years in prison.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal from the judgment, defendant claimed that the prosecution was time barred. He also claimed that the court erred in (1) denying his motion to suppress; (2) admitting evidence of uncharged sexual misconduct; (3) giving CALJIC No. 2.50.01; (4) refusing an instruction that explained why an oral admission must be viewed with caution; (5) failing to expressly instruct the jury that factual allegations related to sentencing must be proved beyond a reasonable doubt; and (6) failing to stay the term for one count.
In our original opinion, we rejected defendant’s claims and affirmed the judgment. Concerning his claim that the court failed to properly instruct jurors on the burden of proof for factual allegations related to sentencing, defendant conceded, and we agreed, that at the time, the claim was foreclosed by the holding in People v. Black (2005) 35 Cal.4th 1238 (Black). (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Later, however, in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), the United States Supreme Court disagreed with Black, vacated it, and remanded it to the California Supreme Court for reconsideration in light of Cunningham. (Black v. California (Feb. 20, 2007, No. 05-6793) ___ U.S. ___ [127 S.Ct. 1210].) Thereafter, the United States Supreme court vacated our original decision, recalled the remittitur, and remanded it to us for further consideration.
Having done so, we again affirm the judgment.
Facts
Charged Offenses
Defendant’s nine convictions involved acts against L. between 1988 and 1991. In 1986, when L. was seven, defendant befriended L.’s mother Deborah, who worked at the same resort in Arizona. Eventually, Deborah allowed defendant to look after L. when Deborah was at work. One day, defendant took L. swimming. Later, he took her to his room, helped her undress, and took photographs of her naked on his bed. He also he rubbed her vagina.
During the summers between 1986 and 1991, L. and her mother visited defendant at a trailer park in Santa Cruz, where he lived with a woman named Debbie and her daughter C. Defendant paid for the visits. L. testified that during that period, defendant molested her “too many times to count.” The molestation started out as fondling and masturbation and progressed to oral copulation and then to sexual intercourse. It occurred mostly during her summer visits at different places, including defendant’s job sites, his truck, his residence, and a camper on his property.
L. recalled that during one visit when she was 10, she and defendant were behind a semi-trailer on his property. He rubbed her vagina and then had her masturbate him. On another occasion during that visit, defendant asked if he could taste her, which became their code phrase for oral copulation. They were inside a camper and orally copulated each other. Then she masturbated him.
One day, when L. was 12 years old, defendant grabbed her chest, orally copulated her, and told her that she was getting somewhat chubby. On another occasion, they were alone in his bedroom, and he took photographs of her breasts and orally copulated her. He then had her put a condom on him, and they had sexual intercourse. He told her he would stop if it hurt, but when she complained, he continued, advising her to breath deeply. They had intercourse again that night or the next morning. Later, they drove back to Arizona, stopping overnight at motel near Knott’s Berry Farm, where they again had intercourse.
Defendant warned L. that if anyone found out about the molestation, “[t]he shit would hit the fan.” L. kept their secret. She testified that at the time, she worried that her mother would be ashamed of her. She also said that defendant was nice to her. He gave her things, took her places, and even promised to marry her some day. Nevertheless, after the last visit in 1991, L. told her mother about the molestation, and they reported it to police in Arizona.
L.’s mother testified that defendant once said that he liked going to Mexico because there, fathers are allowed to sleep with their daughters.
Evidence of Uncharged Sexual Misconduct
Five women—T., M., W., C., and G.—testified that defendant molested them when they were young girls.
The court excluded as more prejudicial than probative parts of these witnesses’ proposed testimony and all of the proposed testimony of three other women.
Defendant’s biological daughter T. was born in 1967. She lived with her mother in Southern California and regularly visited defendant in Los Gatos each year. When she was seven, defendant took a shower with her. He touched her chest and vagina and showed her how to wash his penis. During that visit, he also orally copulated her. When she was eight years old, he started to have her masturbate him. When she was nine, he took nude pictures of her and attempted sexual intercourse, but he stopped when she told him it hurt.
T. testified that her friend M. traveled with her and defendant to Knott’s Berry Farm a few times. They would stay in a motel and sleep in the same bed. At least twice defendant touched T.’s vagina when M. was in bed with them. T. also testified that she and defendant had oral sex around 50 times. When T. was 12 years old, she told her mother she did not want to see defendant anymore. She did not tell her mother about the molestation until she was 26 years old.
M. testified that on one of the trips to Knott’s Berry Farm, she was in bed with T. and defendant, and he reached over and held her breast for a few seconds. When she turned to her side, he tried to put his hand between her legs and rub her vagina. She pushed his hand away. M. said he touched her breast again the next summer.
W. was born in 1970 and lived at a trailer park in Santa Cruz next door to defendant. She testified that when she was 10 or 11 years old, defendant led her to an isolated trailer, where he kissed her, put his hand under her shirt, and touched her breast. She cried and yelled, but he told her no one could hear her. He then got on top of her and said he wanted to have sex. He left for a moment, warning her to stay there. However, she fled. She did not report the incident until 2000, when a detective from the Watsonville Police Department interviewed her.
C. was born in 1980. She and her mother Debbie lived with defendant in Santa Cruz from 1986 to 1999. She testified that once when she was six, she was playing in defendant’s storage locker. He came in and shut the door. She remembered she was lying on a couch, and defendant was in front of her holding her ankles and licking her vagina. She squirmed and tried to get away. Defendant let go only when he heard Debbie drive up.
G. was born in 1986. When she was five years old, she would stay with Debbie and C. during the day. She recalled one incident when she and defendant were in bed. She was naked, and defendant was tickling her.
In 2000, C. spoke to the police about the molestation. An officer arranged for her to call defendant. During the call, C. repeatedly asked defendant to apologize. However, he denied that he had ever touched or done anything to G. or L. He could not remember orally copulating C. However, he apologized for anything he had ever done or said to offend her or hurt her feelings.
The Defense
The defense presented no witnesses or evidence except for some stipulations with the prosecutor.
Failure to Dismiss the Case as Time Barred
Defendant contends the prosecution for his offenses was time barred under both the normal statute of limitations and the one-year extension provided in section 803(g).
Background
The third amended information alleged nine counts of lewd conduct with L., in violation of section 288, subdivision (a), “on or between May 25, 1988 and October 7, 1991.” The applicable statute of limitations is six years. (§ 800.) It expired on October 7, 1997. It is undisputed that the prosecution in this case did not commence until long after that date. However, the amended information further alleged facts, which if found true, revived and extended the period of limitations under section 803(g). Specifically, the information alleged that (1) L. reported the underlying child molestation to a California Law Enforcement agency on August 5, 2000; (2) the felony complaint was filed within one year of that report; (3) the normal limitations period for the offenses had expired; (4) the alleged offenses involved substantial sexual conduct; and (5) there was independent corroboration of L.’s allegations.
The original complaint is not part of the record. Defendant asserts that it was filed in November 2000. The record reveals that defendant was arraigned in January 2001, and the information was first filed in March 2001. (See § 804 [when prosecution commences].)
At that time, section 803(g) provided, in relevant part, “(1) Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section . . . 288 . . . . [¶] (2) This subdivision applies only if all of the following occur: (A) The limitations period specified in Section 800, 801 has expired. [¶] (B) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual, and there is independent evidence that clearly and convincingly corroborates the victim’s allegation.” (Stats. 2000, ch. 235, § 1.)
Expiration of the Extended Limitations Period
Defendant claims that if section 803(g) applied and extended the limitations period for one year, the extension nevertheless expired before the prosecution commenced. He notes that in 1993, when section 803(g) was enacted, a one-year extension ran from the date the victim reported abuse to “a law enforcement agency . . . .” (Stats. 1993, ch. 390, § 1, p. 2226.) According to defendant, the phrase “a law enforcement agency” initially referred to any law enforcement agency “both within and outside of California.” Thus, defendant argues that L.’s 1991 report to Arizona authorities triggered the one-year extension, which expired in 1992. Alternatively, he argues that if the extension did not start to run until section 803(g) became effective in 1994, the extension nevertheless expired in 1995.
Defendant acknowledges that the prosecution was commenced within one year of L.’s report to a California law enforcement agency. However, he notes that the Legislature added the word “California” to the phrase “a law enforcement agency” in 1997. (See stats. 1997, ch. 29, § 1.) Defendant argues that the 1997 amendment changed the meaning and scope of section 803(g), narrowing it from law enforcement agencies anywhere to only California agencies. Thus, because the normal and extended limitations periods expired before the 1997 amendment became effective, the amendment may not be applied retrospectively to him because doing so would violate the proscription against ex post facto laws. (See Stogner v. California (2003) 539 U.S. 607, 632-633 [where limitations period expired before § 803(g) became effective, revival of period would violate ex post facto principles].)
We disagree with defendant’s interpretation of the phrase “a law enforcement agency” and his view that the 1997 addition of the word “California” changed existing law.
In construing statutes, our fundamental goal is to “ascertain the intent of the Legislature so as to effectuate the purpose of the law . . . .” (People v. Jenkins (1995) 10 Cal.4th 234, 246.) To find intent, we first turn to the words of the statute. Viewing them in context and in light of the nature and obvious purpose of the statute, we give the words their plain, everyday, commonsense meaning. If we find no ambiguity or uncertainty, we simply presume the Legislature meant what it said, which makes further inquiry into legislative intent unnecessary. However, if we find the statutory language susceptible of more than one reasonable interpretation, we may then turn to extrinsic indicia of intent, such as legislative history, public policy, and the statutory scheme of which the statute is a part. (People v. Murphy (2001) 25 Cal.4th 136, 142; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192; People v. Alvarado (2001) 87 Cal.App.4th 178, 185-186; People v. Rackley (1995) 33 Cal.App.4th 1659, 1665-1666.)
Although in the phrase “a law enforcement agency” literally is broad enough to refer to any agency anywhere, it does not necessarily or unambiguously convey that expansive meaning.
For example, the Child Abuse and Neglect Reporting Act (§ 11164 et seq.) requires that specified persons report suspected child abuse or neglect to local authorities. (§ 11166.) Those persons are called “mandated reporters.” (§ 11166, subd. (a).) Section 11165.7 lists 37 mandated reporters, including teachers, peace officers, firefighters, physicians. (§ 11165.7, subds. (a)(1)-(a)(37).) All of these persons are generically described in a way that literally could refer to persons anywhere, and not just California personnel. However, as the Attorney General points out, the California Legislature cannot, for example, require that a teacher in another state or country report suspected abuse to California authorities. (See Bonaparte v. Tax Court (1991) 104 U.S. 592, 594 [“No state can legislate except with reference to its own jurisdiction . . . . Each state is independent of the others in this particular”]; Bigelow v. Virginia (1975) 421 U.S. 809, 824 [“A state does not acquire power or supervision over the internal affairs of another state merely because the welfare and health of its own citizens may be affected when they travel to that State”].) Thus, the inherent limit on the Legislature’s authority makes it unreasonable to infer an expansive meaning to the persons generically described in section 11165.7. Rather, the list necessarily refers to only California teachers, peace officers, firefighters, physicians, et cetera.
Section 11165.7 provides, in relevant part, “(a) As used in this article, ‘mandated reporter’ is defined as any of the following: (1) A teacher. [¶] (2) An instructional aide. [¶] (3) A teacher’s aide or teacher’s assistant employed by any public or private school. [¶] (4) A classified employee of any public school. [¶] (5) An administrative officer or supervisor of child welfare and attendance, or a certificated pupil personnel employee of any public or private school. [¶] (6) An administrator of a public or private day camp. [¶] (7) An administrator or employee of a public or private youth center, youth recreation program, or youth organization. [¶] (8) An administrator or employee of a public or private organization whose duties require direct contact and supervision of children. [¶] (9) Any employee of a county office of education or the California Department of Education, whose duties bring the employee into contact with children on a regular basis. [¶] (10) A licensee, an administrator, or an employee of a licensed community care or child day care facility. [¶] (11) A Head Start program teacher. [¶] (12) A licensing worker or licensing evaluator employed by a licensing agency as defined in Section 11165.11. [¶] (13) A public assistance worker. [¶] (14) An employee of a child care institution, including, but not limited to, foster parents, group home personnel, and personnel of residential care facilities. [¶] (15) A social worker, probation officer, or parole officer. [¶] (16) An employee of a school district police or security department. [¶] (17) Any person who is an administrator or presenter of, or a counselor in, a child abuse prevention program in any public or private school. [¶] (18) A district attorney investigator, inspector, or local child support agency caseworker unless the investigator, inspector, or caseworker is working with an attorney appointed pursuant to Section 317 of the Welfare and Institutions Code to represent a minor. [¶] (19) A peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, who is not otherwise described in this section. [¶] (20) A firefighter, except for volunteer firefighters. [¶] (21) A physician, surgeon, psychiatrist, psychologist, dentist, resident, intern, podiatrist, chiropractor, licensed nurse, dental hygienist, optometrist, marriage, family and child counselor, clinical social worker, or any other person who is currently licensed under Division 2 (commencing with Section 500) of the Business and Professions Code. [¶] (22) Any emergency medical technician I or II, paramedic, or other person certified pursuant to Division 2.5 (commencing with Section 1797) of the Health and Safety Code. [¶] (23) A psychological assistant registered pursuant to Section 2913 of the Business and Professions Code. [¶] (24) A marriage, family, and child therapist trainee, as defined in subdivision (c) of Section 4980.03 of the Business and Professions Code. [¶] (25) An unlicensed marriage, family, and child therapist intern registered under Section 4980.44 of the Business and Professions Code. [¶] (26) A state or county public health employee who treats a minor for venereal disease or any other condition. [¶] (27) A coroner. [¶] (28) A medical examiner, or any other person who performs autopsies. [¶] (29) A commercial film and photographic print processor, as specified in subdivision (e) of Section 11166. . . . [¶] (30) A child visitation monitor. . . . [¶] (31) An animal control officer or humane society officer. . . . [¶] . . . [¶] (32) A clergy member, as specified in subdivision (d) of Section 11166. . . . [¶] (33) Any custodian of records of a clergy member, as specified in this section and subdivision (d) of Section 11166. [¶] (34) Any employee of any police department, county sheriff's department, county probation department, or county welfare department. [¶] (35) An employee or volunteer of a Court Appointed Special Advocate program, as defined in Rule 1424 of the California Rules of Court. [¶] (36) A custodial officer as defined in Section 831.5. [¶] (37) Any person providing services to a minor child under Section 12300 or 12300.1 of the Welfare and Institutions Code.
When we view the original phrase “a law enforcement agency” in context and in light of nature and obvious purpose of section 803(g), we reach a similar conclusion: It referred to only California law enforcement agencies.
In People v. Frazer (1999) 21 Cal.4th 737, the California Supreme Court explained that “in first enacting section 803(g), the Legislature expressed concern that reliable accusations of child sexual abuse, including those accompanied by an admission of guilt, were not prosecuted because the victim—who may ‘now [be] an adult’—had waited to report the crime until after the existing statute of limitations had expired. [Citation.] The Legislature recognized that young victims often have difficulty remembering and reporting traumatic abuse at the hands of adults, particularly adults who breach positions of trust, and was obviously concerned that such serious crimes would otherwise go unpunished.” (Id. at p. 763, fn. 24, overruled on other grounds in Stogner v. California, supra, 539 U.S. 607.)
Accordingly, to facilitate the prosecution and punishment of child molesters, section 803(g) revives and extends limitations periods that have already expired. However, in enacting the statute, the Legislature did not allow for an unlimited extension; it provided only a one-year extension. Doing so reflects a legislative determination that one year is enough time for prosecuting authorities to learn about alleged abuse and commence a prosecution. Certainly it is reasonable for the Legislature to expect and require prosecutors to commence a criminal action within one year of a report of abuse to a California law enforcement agency. However, defendant implicitly claims the Legislature also considered it reasonable to expect authorities to commence a prosecution within one year of a report to a foreign law enforcement agency. We find that view unreasonable.
As noted, the Legislature cannot require law enforcement officials in Iowa or Italy or Indonesia to notify California authorities when they receive reports of child abuse that occurred in California. Moreover, we are not aware of any formal or informal reciprocal reporting agreements or procedural mechanisms under which foreign law enforcement agencies can be expected to forward to California reports of child abuse, especially reports by adults concerning abuse that may have taken place when they were children. Furthermore, it is unrealistic to expect California authorities to be constantly canvassing foreign law enforcement agencies for reports of child abuse. We note that if a report to a foreign agency triggered the one-year extension, then, as a practical matter, that period in cases such as this one would expired before California authorities ever learn of the report, if indeed, they ever would learn of it.. As a result, the effectiveness of the statute would be significantly degraded because some child molesters would escape prosecution and punishment and remain at large simply because their victims happened to first report abuse to authorities in a foreign jurisdiction. Such a result is so inconsistent with the purpose of section 803(g), we consider it inconceivable the Legislature intended “a law enforcement agency” to have a meaning that allowed it.
Furthermore, the legislative history of section 803(g) does not suggest that the Legislature intended the phrase to refer to an agency anywhere.
When enacted in 1993, section 803(g) mirrored an existing provision: former section 803, subdivision (f) (hereafter section 803(f)). Section 803(f) extended the statute of limitations for one year after a child under 17 years of age reported abuse to a “ ‘responsible adult’ ” or “ ‘agency.’ ” (Stats. 1990, ch. 587, § 2) The statute defined the amorphous terms “responsible adult” or “agency” to mean those generically described persons enumerated in the Child Abuse and Neglect Reporting Act, who, as discussed, are necessarily only California personnel. Thus, under former section 803(f), only a report by a minor to a California authority triggered the one-year extension.
The enactment of section 803(g) extended the limitations period for one year after a report by a person of any age to “a law enforcement agency.” If, as defendant argues, the Legislature intended “a law enforcement agency” to mean California and foreign agencies, one reasonably would expect to find some evidence of that intent in the legislative history because the trigger for an extension under section 803(g) would be so different and so much broader than the trigger under section 803(f). However, the available history comprises Senate and Assembly analyses of the new section 803(g), and they do not mention or imply that there is a difference between the triggers in each section. Nor do they suggest that the Legislature intended the triggers to be substantially different. The lack of such evidence and the basic similarity between the two sections more reasonably suggest that the Legislature considered it unnecessary to expressly limit the phrase “a law enforcement agency” to California agencies. Just as section 803(f) was necessarily but implicitly limited to California personnel, so too section 803(g) necessarily and implicitly referred to only California law enforcement agencies.
Given the purpose of section 803(g), the lack of evidence that the legislature intended “law enforcement agency” to broadly mean to an agency anywhere, and the consequences that would have followed from such an interpretation, we conclude that the original phrase is not reasonably susceptible of defendant’s expansive interpretation. (See Lundgren v. Deukmejian (1988) 45 Cal.3d 727, 735 [“[l]iteral construction should not prevail [when] it is contrary to the legislative intent apparent in the statute”]; Silver v. Brown (1966) 63 Cal.2d 841, 845 [“The literal meaning of the words of a statute may be disregarded to avoid absurd results or to give effect to manifest purposes that, in the light of the statute’s legislative history, appear from its provisions considered as a whole”].)
Defendant also appears to rely on the general rule of construction that when the Legislature amends a statute, a court presumes that it intended to change existing law. (See People v. Valentine (1946) 28 Cal.2d 121, 142.) Thus, under the rule, when the Legislature added “California” to “a law enforcement agency,” it intended to change section 803(g) and did so by narrowing it to cover reports from only California law enforcement agencies. However, defendant’s reliance on the rule is misplaced.
“While an intention to change the law is usually inferred from a material change in the language of the statute [citations], a consideration of the surrounding circumstances may indicate, on the other hand, that the amendment was merely the result of a legislative attempt to clarify the true meaning of the statute.” (Martin v. California Mut. B. & L. Assn. (1941) 18 Cal.2d 478, 484.) The People argue, and we agree, that the 1997 amendment did not change section 803(g); it simply clarified existing law.
As noted, the legislative history of section 803(g) does not suggest that the Legislature initially intended “a law enforcement agency” to mean an agency anywhere. Moreover, if that had been the original meaning of the phrase, then one reasonably would expect the legislative history of the 1997 amendment, which added the word “California,” to contain some evidence that the Legislature intended to substantially narrow the meaning of the phrase and thereby the scope of the statute. However, the available legislative history is silent concerning the reason for inserting the word “California.” Instead, the legislative history reveals that purpose of the 1997 amendment was only procedural.
After section 803(g) became effective in 1994, appellate courts disagreed concerning whether it was retroactive and whether it revived limitations periods that had expired before 1994. Some courts concluded that it was not retroactive and did not revive expired periods because the Legislature did not clearly indicate that intent. (See § 3 [“No part of [the Penal Code] is retroactive, unless expressly so declared”]; e.g., People v. Bunn (2002) 27 Cal.4th 1, 7-8 [recounting judicial history].) In response to those cases, the Legislature amended the statute in 1996, adding express revival and retroactivity provisions to cover cases where the statute of limitations had expired before 1994. In People v. Frazer, supra, 21 Cal.4th at pp. 744-752, the California Supreme Court discussed the legislative and judicial history of section 803(g) and concluded that the 1996 amendment was intended only to clarify, not change, the statute concerning its retroactivity. (Id. at p. 753; see People v. Robertson (2003) 113 Cal.App.4th 389, 393 [“the 1996 amendment was a clarification of, not a change to, the original version of 1994”].)
The 1997 amendment added new procedural provisions to sections 803(f) and 803(g). An analysis of the proposed amendment for the Senate Committee on Public Safety explained that in 1996, the Legislature revised the extended statute of limitations provided in section 803(g). The proposed 1997 amendment would repeal provisions of the 1996 amendment and revise the limitations period in different ways. (Sen. Com. on Pub. Saf., Analysis Assem. Bill No. 700 (1997-1998 Reg. Sess.) June 10, 1997, pp. 3-4.) The report stated that the amendment’s author considered it “necessary to make absolutely clear that the cases that were dismissed (by the California Supreme Court) may be refilled without delay. It is also necessary to clarify that the Legislature’s statement of retroactivity, as set forth in the 1996 amendment to subdivision (g), is meant to apply to all cases, even those filed prior to the amendment’s effective date.” (Id. at p. 5.)
More specifically, the Senate Committee analysis explained that the 1996 amendment “restored time-barred complaints under [sections 803(f) and 803(g)] for a six month period if either a complaint is filed within the time period specified in these subdivisions, or a report was made after the current statute of limitations period was enacted and a complaint was not timely filed, or was filed but subsequently dismissed, and a complaint is filed or refilled before June 30, 1997. In addition, [the amendment made] the statutes of limitations in [those sections] expressly retroactive to causes of action arising before their enactment dates. [¶] As the time [the amendment] was heard by the Legislature, there were seven appellate court cases pending before the California Supreme Court on the applicability of these [two sections] to time-barred cases. At issue in these cases was whether the limitations period established under [the two sections] could be applied, as a matter of either statutory constructions or constitutional law, retroactively. [The 1996 amendment] was introduced to expressly establish the Legislature’s intent that these [sections] apply retroactively. The bill also restored time-barred complaints for a six month period under specified circumstances.” (Sen. Com. on Pub. Saf., Analysis Assem. Bill No. 700, supra, at p. 6.)
The analysis noted that the California Supreme Court had dismissed review in each of the seven court of appeal cases noted above and remanded them to the courts of appeal in light of the 1996 amendment of section 803(g). “The Attorney General’s office argues that this bill essentially is a technical, procedural bill to: [¶] 1. Ensure that the retroactivity provisions enacted by [the 1996 amendment] apply to the above-noted cases pending on appeal; [and] [¶] 2. Revise the language of [the 1996 amendment] specifying a date-certain limitations period to instead a time-certain limitations period triggered by a final Supreme Court decision on the constitutionality of sections 803(f) and 803(g).” (Sen. Com. on Pub. Saf., Analysis Assem. Bill No. 700, supra, at p. 6; see Sen. Rules. Com., Floor Analysis, Assem. Bill No. 700 (1997-1998 Reg. Sess.) June 3, 1997 [containing the same information].)
As this legislative material reveals, the 1997 amendment was designed to establish clear, procedural continuity for the prosecution of cases that had been affected by the judicial controversy over retroactivity and to provide such continuity for cases if and when higher courts finally resolved the issue. (See People v. Bunn, supra, 27 Cal.4th at pp. 9-13 [discussing 1996 and 1997 amendments].) It was not designed to change the meaning of “a law enforcement agency” and substantially narrow scope of section 803(g).
In sum, we conclude that the 1997 insertion of “California” simply made express what had been implicit in section 803(g) when it was enacted: The one-year extension runs from the date abuse is reported to a California law enforcement agency. Since the criminal action against defendant was commenced within one year of L.’s report to California authorities, we reject defendant’s claim that the action was time barred.
Insufficient Corroboration
One of the prerequisites for an extension under section 803(g) is the introduction of independent evidence that clearly and convincingly corroborates the victim’s allegations.
To corroborate L.’s allegations, the prosecution offered the testimony of women, who told about being molested by defendant when they were young girls. Their testimony concerning uncharged sexual misconduct was admitted under Evidence Code sections 1108 and 1101, subdivision (b), to show that defendant had a propensity to commit sexual offenses and used a common plan or scheme.
Defendant contends the testimony was insufficient to corroborate L.’s allegations. He claims that where evidence of uncharged sexual misconduct is introduced to corroborate under section 803(g), it too must be independently corroborated.
Defendant bases his claim on the fact that if he had been prosecuted for the uncharged misconduct, the prosecution would have had to independently corroborate the witnesses’ testimony. For that reason, he analogizes testimony concerning uncharged misconduct to accomplice testimony. He argues that just as the testimony of an accomplice cannot be corroborated by the uncorroborated testimony of another accomplice, so too the testimony of one victim of sexual misconduct cannot be corroborated by the uncorroborated testimony of another victim of misconduct. (See § 1111.) Defendant infers the requirement of secondary corroboration from the fact that the Legislature adopted section 803(g) fully aware of existing statutes and judicial decisions requiring accomplice corroboration.
We disagree with defendant’s analogy between testimony about uncharged sexual misconduct and accomplice testimony. Corroboration and cautionary instructions concerning accomplice testimony are based on the traditional common law view that “an accomplice is inherently untrustworthy because he or she ‘usually testif[ies] in the hope of favor or the expectation of immunity.’ [Citation.] In addition, an accomplice may try to shift blame to the defendant in an effort to minimize his or her own culpability. [Citation.]” (People v. Tobias (2001) 25 Cal.4th 327, 331.) Those considerations do not apply to witnesses who testify about uncharged sexual misconduct.
Next, although we agree with defendant that the Legislature is presumed to know existing statutes and judicial interpretations of them (Bailey v. Superior Court (1977) 19 Cal.3d 970, 977, fn. 10), we also presume that the Legislature knows how to require secondary corroboration if it intends to impose such a requirement. (Cf. People v. Murphy, supra, 25 Cal.4th at p. 159 [“when [the Legislature] wants a sentence calculated without consideration of some circumstance, it knows how to use language clearly expressing that intent”].) Section 803(g) does not expressly require evidence of uncharged misconduct to be corroborated; nor do its provisions reasonably imply such a requirement. Under the circumstance, the absence of a requirement implies that the Legislature did not intend to impose one. (See Evid. Code, § 1108 [no requirement that uncharged misconduct introduced to show propensity be independently corroborated].)
Finally, courts may not add language to a statute under the guise of construction to accomplish a purpose that does not appear on the face of the statute or from its legislative history. (People v. Morris (1988) 46 Cal.3d 1, 15, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5; Bank of America v. Salinas Nissan, Inc. (1989) 207 Cal.App.3d 260, 270; see Code Civ. Proc. §§ 1858 & 1859.) Given the fundamental differences between the testimony of an accomplice and that of a victim of uncharged sexual misconduct and the lack of any evidence that the Legislature intended to require secondary corroboration, we decline to judicially legislate such a requirement. Rather, section 803(g) requires only that allegations concerning charged misconduct be corroborated. Presumably, the Legislature found that issues concerning the reliability of corroborating testimony, including evidence of uncharged misconduct—e.g., remoteness, bias, motive to fabricate—could be adequately explored by cross-examination.
Thus, the only question before us is whether the testimony of the witnesses concerning uncharged sexual misconduct was sufficient to corroborate L.’s testimony.
In People v. Yovanov (1999) 69 Cal.App.4th 392 (Yovanov), the court observed that because evidence of uncharged sexual misconduct is highly probative concerning credibility and a propensity to commit such offenses, it is admissible to show guilt for charged misconduct. (Id. at pp. 403-404; see Evid. Code, § 1108.) Accordingly, the court found that it was also admissible to satisfy the corroboration requirement in section 803(g). (Yovanov, supra, 69 Cal.App.4th at p. 404.)
In People v. Mabini (2001) 92 Cal.App.4th 654 (Mabini), the court held that the testimony of one witness concerning similar, uncharged misconduct was sufficient to corroborate the victim’s allegations. (Id. at pp. 657-659.)
Here, several witnesses testified about defendant’s uncharged misconduct, and their testimony reveals that all of his victims were around the same age and involved similar acts of abuse. Given Yovanov and Mabini, we conclude that their testimony was sufficient to satisfy the corroboration requirement in section 803(g).
No Substantial Sexual Conduct
Another prerequisite for extending the limitations period is that the charged offenses must involve substantial sexual conduct as defined in subdivision (b) of section 1203.066, including mutual masturbation—i.e., “excluding masturbation that is not mutual.” (Former § 803(g), stats. 1993, ch. 390, § 1.) Section 1203.066, subdivision (b) provides, “ ‘Substantial sexual conduct’ means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender.”
Defendant notes that his conviction on count 8 is based on having L. unroll a condom onto his penis. He contends that L.’s act does not constitute substantial sexual conduct.
In People v. Grim (1992) 9 Cal.App.4th 1240 (Grim), the court rejected a claim that oral copulation did not constitute substantial sexual conduct under section 1203.066 unless there was some penetration. The court upheld an instruction which stated that “ ‘[a]ny contact, however slight, between the mouth of one person and the sexual organ of another person constitutes “oral copulation” ’ ” (Id. at p. 1242.)
In People v. Chambless (1999) 74 Cal.App.4th 773, 787 (Chambless), the court cited Grim and similarly held that “any contact, however slight of the sexual organ of the victim or the offender would be sufficient to qualify as masturbation and in turn as substantial sexual conduct” within the meaning of Welfare and Institutions Code sections 6600 and 6600.1. (Italics added; accord, People v. Whitlock (2003) 113 Cal.App.4th 456,462-463; People v. Lopez (2004) 123 Cal.App.4th 1306, 1312.)
Welfare and Institutions Code sections 6600 and 6600.1 are part of the Sexually Violent Predators Act. Under the act, Welfare and Institutions Code section 6600.1, subdivision (b) defines “ ‘[s]ubstantial sexual conduct’ ” in language identical to that in section 1203.066, subdivision (b): “penetration of the vagina or rectum of either the victim or the offender by the penis or the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender.” (Welf. & Inst. Code, § 6600.1, subd. (b).)
Defendant claims that Chambless was wrongly decided. Noting that standard dictionary definitions of masturbation include an aspect of excitation or eroticism, he argues that Chambless failed to recognize that there is a qualitative requirement to make a slight touching masturbatory. He claims that for purposes of section 1203.066, subdivision (b), masturbation must be limited to “ ‘touching that is significant and long enough to be designed to produce sexual excitement in the one being touched.’ ” However, even we accept defendant’s definition of masturbation, we would nevertheless find L.’s conduct sufficient. Defendant could have put the condom on himself. However, having L. do it supports an inference that he intended to and did derive additional erotic excitement and continued arousal.
Defendant also argues that L.’s act did not constitute mutual masturbation, that is, it came within the exclusion for “masturbation that is not mutual.” (Former § 803(g); stats. 1993, ch. 390, § 1..)
In People v. Lamb (1999) 76 Cal.App.4th 664 (Lamb), the court carefully reviewed the legislative history of section 803(g) and explained that the exclusion was narrowly and specifically designed to exclude only self-masturbation by the offender in the presence of the victim. (Id. at pp. 678-681.) Thus, mutual masturbation included reciprocal masturbation by two people, unilateral masturbation of the victim by the defendant, and vice versa. (Ibid.; accord, People v. Terry (2006) 127 Cal.App.4th 750, 771-772 [also adopting Chambless definition of masturbation].) In reaching that conclusion, the court found it inconceivable that the Legislature “did not intend the extended statute of limitation to apply to the circumstances in which masturbation of an offender by a victim would most commonly be chargeable as a crime, i.e., where the victim is a minor or an unconsenting adult acting under compulsion.” (People v. Lamb, supra, 76 Cal.App.4th at p. 681.)
Under Lamb, L.’s act of unrolling a condom onto defendant’s penis qualifies as mutual masturbation.
Defendant claims that Lamb was wrongly decided. Noting that section 803(g) requires substantial sexual conduct, defendant infers that the extended statute of limitations was designed for only the most serious sexual offense cases. He argues that since a slight touching can qualify as mutual masturbation under Chambless and Lamb, something more is needed to make it serious enough to warrant an extended statute of limitations. He submits that the slight touching must be performed with a more culpable criminal intent than is ordinarily required for a violation of section 288, subdivision (a). Where the crime requires only an intent to arouse or gratify either the offender or the victim, defendant argues that for purposes of section 803(g), the slight touching must be performed with an intent to sexually arouse or gratify both the offender and the victim.
Defendant offers nothing to support his interpretation. Moreover, the legislative history of section 803(g), as reviewed here and examined in Lamb, does not support defendant’s argument or suggest that the Legislature intended to impose a heightened mens rea or give the terms “substantial sexual conduct” and “masturbation” meanings different from what those same terms have in other contexts. Moreover, excluding from section 803(g) offenders who commit acts against children for only their own private gratification but not those who act for mutual gratification is inconsistent with the purpose of the statute. Indeed, it is unreasonable, if not absurd, to suggest that the Legislature intended to make such a distinction, for, as the Attorney General observes, it would allow the vast majority of garden variety child molesters who use children solely for only their own deviant sexual pleasure to escape the extended limitations period, prosecution, and punishment.
Erroneous Denial of Motion to Suppress
Defendant contends that the court erred in denying his motion to suppress evidence obtained from a search of his property. He claims that the warrant was not supported by probable cause, and it was objectively unreasonable for a trained officer to think that the affidavit was sufficient.
The Search Warrant Affidavit
Detective Rodd N. Joseph of the Watsonville Police Department, then assigned to investigate sexual assaults, prepared the search warrant affidavit.
Attached to the affidavit was a copy of L.’s 1991 police report. The report and Detective Joseph’s summary of it revealed that L. told Arizona police that defendant had been molesting her for five years. He took nude photographs of her and touched her genitals. They had oral sex and intercourse. L. reported that defendant kept the photographs behind a ceiling tile and in a floor safe in his mobile home in Santa Cruz, which was located in the area near Paul Minnie and Soquel Avenues in Santa Cruz. L. explained that defendant befriended her mother and earned her trust. He was allowed to take L. swimming and have her stay overnight with him. Thereafter, he started molesting her. L. said that once after swimming, they went to his home, where he took nude photographs of her and touched her. He once arranged for her to fly from Arizona to California to stay at his residence.
The affidavit stated that many years later, on July 26, 2000, L. saw defendant with a little girl at a public swimming pool. Concerned for the girl’s safety, L. reported this to Arizona police, who spoke to defendant. He volunteered that the girl’s name was A. Police discovered that she was from Watsonville. They called her mother, who said she had not given defendant permission to take her nine-year-old daughter with him to Arizona. Defendant was arrested. However, he was released after A.’s father, who was in an Oakland jail, said that he had given defendant permission. Nevertheless, A. was placed in the custody of Child Protective Services (CPS) and interviewed. She called defendant “grandfather” and “daddy” and denied any sexual conduct.
On August 1, 2000, police interviewed A.’s mother. She said that her husband introduced her to defendant, and he then befriended the family. They trusted him, and he started to take A. and her younger sister to swimming lessons. When A.’s father was taken into custody, defendant assumed a quasi-parental role in the family. At some point defendant started bringing A. to his home. In July 2000, he took her to a swimming lesson and afterward left her at his home. When her mother called, A. said defendant would bring her home after work. However, he took her to Arizona instead. A.’s mother said that she was afraid to report defendant to the police and later learned that her husband had given defendant permission.
Detective Joseph went to Arizona to bring A. back to Watsonville. Defendant had already returned to California. Detective Joseph spoke to A.’s social worker, who told him that she found a note from defendant to A., in which he told her he loved her. She also found a pair of girl’s underwear that appeared to have a vaginal-discharge stain in the crotch. The social worker further reported that A. told her defendant had taken photographs of her in her bathing suit.
While in Arizona, Detective Joseph also interviewed L., who recounted her history of defendant’s molestation, how it began, and where it occurred. She reiterated that she had been to his mobile home in Santa Cruz, where he had put the photographs of her above ceiling tile and in a safe in the floor. She could not recall where defendant lived but thought Paul Minnie Avenue sounded familiar. She did not know why defendant was never arrested for molesting her.
On August 15, 2000, Detective Joseph interviewed A. She referred to defendant as “daddy” and “uncle Lee” and denied that he had taken photographs of her. She said she did not want to get him into trouble. On August 16, 2000, Detective Joseph spoke to A.’s mother. She said that an unidentified Spanish-speaking woman, accompanied by defendant, tried to convince her to say that she had given defendant permission to take A. to Arizona. The woman handed her a document with her children’s names on it and warned that if she did not change her story, authorities would take her children away from her. The documents were fake.
Detective Joseph later traced defendant’s drivers license and learned that his listed residence was on Paul Minnie Avenue. A.’s mother verified defendant’s address and gave him directions to defendant’s mobile home on the property. Detective Joseph also received a detailed, hand-drawn map of defendant’s property from L., and the landmarks and out buildings she identified coincided with defendant’s Paul Minnie Avenue address.
On August 30, 2000, Detective Joseph went to the property and saw defendant. Posing as a county land surveyor, he spoke to defendant, who verified that this was his property. Detective Joseph noted the license plate number on a truck and learned that it was registered to defendant at a Los Gatos post office box. He checked defendant’s criminal history and discovered three prior arrests for lewd conduct, indecent exposure, molestation involving numerous children. He also learned of an arrest in Arizona for indecent exposure. The police reports revealed a similar modus operandi, in that defendant managed to gain the trust of the alleged victims, all of whom were around the same age. However, defendant had only one criminal conviction, and it was for disturbing the peace.
Based on his training and experience in molestation cases, Detective Joseph opined that A. may not have been telling the truth about her conduct with defendant, because perpetrators often threaten and manipulate their young victims. He further explained that child molesters and pornographers exhibit certain common characteristics: they collect sexually explicit material for gratification; they use the material to lower the inhibitions of their victims; and they prize the material that works. Perpetrators also often keep diaries and photographs of their encounters as keepsakes to relive their experiences and threaten and blackmail their victims. According to Detective Joseph, perpetrators rarely dispose of any of this material.
Proceedings Below
In denying the motion to suppress, the trial court considered the showing of probable cause to be “extremely thin.” However, the court did not rule on the sufficiency of the affidavit. Rather, the court found that it was reasonable for Detective Joseph to rely on the warrant. Thus, it denied the motion under the “good faith” exception to the exclusionary rule established in United States v. Leon (1984) 468 U.S. 897.
Given its ruling, the court did not address the prosecution’s alternative argument that the evidence inevitably and independently would have been discovered by police during the course of their investigation.
Applicable Principles
In reviewing the denial of a motion to suppress, we “ ‘defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]’ [Citation.]” (People v. Weaver (2001) 26 Cal.4th 876, 924.)
The two primary issues before the trial court were (1) whether there was probable cause to issue the search warrant; and if not, (2) whether reliance on the warrant was objectively reasonable.
The first issue focuses on whether the affidavit provided the magistrate with “a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing.” (People v. Kraft (2000) 23 Cal.4th 978, 1040; Illinois v. Gates (1983) 462 U.S. 213, 238-239; People v. Camarella (1991) 54 Cal.3d 592, 600-601.) In that regard, we note that “ ‘[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ [Citation] . . . ‘In determining the sufficiency of an affidavit for the issuance of a search warrant the test of probable cause is approximately the same as that applicable to an arrest without a warrant, . . . [citations], namely, whether the facts contained in the affidavit are such as would lead a man of ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion of the guilt of the accused.’ [Citation.]” (People v. Kraft, supra, 23 Cal.4th at pp. 1040-1041.) In making that determination, a magistrate may consider the affiant’s experience and training, inferences and deductions. (People v. Von Villas (1992) 11 Cal.App.4th 175, 217-218; People v. Spears (1991) 228 Cal.App.3d 1, 17.)
Where a defendant challenges an affidavit for lack of probable cause, he or she bears the burden of establishing its invalidity. (Theodor v. Superior Court (1972) 8 Cal.3d 77, 101; Fenwick & West v. Superior Court (1996) 43 Cal.App.4th 1272, 1277.) “[T]the magistrate’s determination will not be overturned unless the supporting affidavit fails as a matter of law to support the finding of probable cause. [Citations.] Doubtful or marginal cases are resolved in favor of upholding the warrant. [Citations.]” (Fenwick & West v. Superior Court, supra, 43 Cal.App.4th at p. 1277; see People v. Camarella, supra, 54 Cal.3d at p. 601 [existence of probable cause is question of law]; People v. Butler (2003) 31 Cal.4th 1119, 1127 [same].)
The second issue focuses on “whether a reasonable and well-trained officer ‘would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.’ ” (People v. Camarella, supra, 54 Cal.3d at pp. 605-606, italics added in Camarella; see United States v. Leon, supra, 468 U.S. at pp. 920, 922, fns. 20 & 23.) In that context, reliance on a defective affidavit is not objectively reasonable if the affidavit is “ ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ” (United States v. Leon, supra, 468 U.S. at p. 923.) Where an affidavit fails to establish probable cause, the state must show that reliance on it and the warrant were objectively reasonable. (Id. at p. 900.)
Discussion
Defendant claims that the affidavit failed to establish probable cause, and it was unreasonable for Detective Joseph to have submitted it for a warrant. According to defendant, the affidavit asserted only that (1) in 1991, defendant took nude photographs of L. and stored them in his mobile home in Santa Cruz; (2) 10 years later, L. saw defendant with A. at a swimming pool in Arizona; (3) A’s father gave defendant permission to bring A. to Arizona; (4) A. denied any sexual conduct with defendant; (5) A. gave conflicting statements about whether defendant had photographed her in her bathing suit; (6) underwear in A.’s belongings appeared to have vaginal discharge stains; and (7) A’s denials of sexual conduct are consistent with being abused.
Defendant argues that L.’s information about what happened to her as a girl was too stale to suspect that the photographs might still be found on defendant’s property. He further argues that any inference of sexual misconduct toward A. from either the information about the underwear or Detective Joseph’s opinion that A. might not have been telling the truth about her conduct with defendant was pure speculation. Last, he argues that there is no evidence defendant bought, sold, or traded child pornography. Therefore, Detective Joseph’s information about the characteristics and behavior of pedophiles and child pornographers “in the guise of expert opinion amounted to little more than ‘rambling boilerplate’ ” and was irrelevant.
We do not share defendant’s minimalist and segregated view of the information in the affidavit. Instead, we look at the totality of the circumstances and how the individual pieces of information relate and then make a common and practical determination concerning whether the affidavit establishes probable cause. (People v. Bradford (1997) 15 Cal.4th 1229, 1297; People v. Spears, supra, 228 Cal.App.3d. at p. 17; see Illinois v. Gates, supra, 462 U.S. at p. 235 [“probable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules”].)
L.’s information about defendant’s photographs and sexual misconduct and the evidence of other arrests involving misconduct toward other young girls reasonably suggest that defendant has pedophilic and pornographic tendencies and render Detective Joseph’s training, experience, and observations concerning the characteristics and behavior of such offenders relevant in determining probable cause. Moreover, similarities in defendant’s behavior toward L. and A.—befriending their mothers, insinuating himself into their families, securing their trust, taking the girls swimming, and bringing the girls to his residence and away with him out of state—reasonably suggest a common method of finding child victims and reasonably cast a cloud of suspicion over defendant’s intentions and acts toward A. That suspicion becomes greater in light of circumstances surrounding defendant’s trip with A. to Arizona, the confusion over whether he had permission, his involvement in trying to have A.’s mother change her story, A’s familial bond toward defendant, her desire not to get him into trouble, and her conflicting statements about being photographed.
We further find that that although L.’s information about where defendant stored the nude photographs was 10 years old, evidence that defendant still lived on the same property and had recently engaged in suspicious activity similar to his conduct toward L. and Detective Joseph’s experience that child molesters and pornographers prize and rarely dispose of their sexually explicit materials arguably establish a reasonable and substantial factual nexus to believe that the photographs of L. would still be found in defendant’s mobile home. (See People v. Mikesell (1996) 46 Cal.App.4th 1711, 1718 [stale information about illegal activity may be entitled to weight in determining probable cause where current information suggests that illegal activity persists]; e.g., U.S. v. Riccardi (10th Cir. 2005) 405 F.3d 852, 861.)
In People v. Camarella, supra, 54 Cal.3d 592, the California Supreme Court explained that where an officer conducts more than a “ ‘bare bones’ ” investigation and presents evidence that renders the determination of probable cause a close or debatable question for not only the officer but also the magistrate, it cannot be said that an objective and reasonable officer would have “ ‘known’ ” this affidavit failed to establish probable cause. Under such circumstances, the officer’s reliance on the subsequently issued warrant is objectively reasonable under United States v. Leon, supra, 468 U.S. 897, and the suppression of the evidence is not required. (Id. at p. 606; see People v. Pressey (2002) 102 Cal.App.4th 1178, 1190-1191.)
Here, Detective Joseph conducted an extensive investigation before seeking a search warrant. We conclude that at a minimum, the affidavit made the existence of probable cause a close question. Therefore, we agree with the trial court that it was objectively reasonable for Detective Joseph to rely on it. Accordingly, the court properly denied the motion to suppress under the Leon “good faith” exception.
Erroneous Admission of Evidence of Uncharged Misconduct
Defendant contends that the court erred in admitting the testimony about uncharged sexual misconduct under Evidence Code sections 1108 and 1101.
In this section all further statutory references are to the Evidence Code unless otherwise specified.
Constitutionality of Evidence Code Section 1108
Defendant contends that the admission of evidence under section 1108 to prove propensity to commit sexual offenses violated the constitutional proscription against ex post facto laws. (U.S. Const., art. I; § 10, cl. 1.) He notes that when the charged offenses were committed—i.e., between 1988 and 1991—evidence of uncharged misconduct was not admissible to prove propensity. (See People v. Alcala (1984) 36 Cal.3d 604, 630-631.) Later, section 1108 was enacted. (See stats. 1995, ch. 439, § 2.) Citing Carmell v. Texas (2000) 529 U.S. 513 (Carmell), defendant argues that applying the statute retrospectively was unconstitutional because it lessened the amount of evidence needed to convict. We disagree.
In Carmell, supra, 529 U.S. 513, the United States Supreme Court explained that a law altering the rules of evidence to permit a conviction on less or different evidence violates the ex post facto clause. (Id. at pp. 522, 530, 534.) In Carmell, the defendant committed his offense at a time when the testimony of a rape victim had to be independently corroborated. However, at trial, the court applied a new law that eliminated the required corroboration and allowed the jury to convict him on testimony from only the victim. (Id. at pp. 530-531.) Because the law unquestionably reduced the amount of evidence needed to convict the defendant, its retrospective application was impermissible.
Unlike the law in Carmell, section 1108, does not change either the amount or the kind of evidence that would have been necessary to convict defendant when he committed his offenses. At that time, evidence of uncharged offenses was admissible under sections 1101, subdivision (b) and 352 as long as it was relevant to some disputed issue in the case, such as intent, and was more probative than prejudicial. Under section 1108, the same evidence is admissible for an additional purpose: to prove propensity. Even for that purpose, the evidence must still pass muster under section 352. Thus, section 1108 simply expands the relevance of such evidence, making it more admissible. Doing so, however, does not lower the prosecution’s burden of proof or otherwise undermine the presumption of innocence. (See People v. Falsetta (1999) 21 Cal.4th 903, 910-922 [“Nor does section 1108 improperly alter or reduce the prosecutor’s proof burden”]; People v. Fitch (1997) 55 Cal.App.4th 172, 185.)
Defendant contends that the admission of evidence under section 1108 also violated his constitutional right to due process. However, he acknowledges that this court is bound by People v. Falsetta, supra, 21 Cal.4th 903, where his claim was rejected. (Id. at pp. 915-922; see Auto Equity Sales v. Superior Court, supra, 57 Cal.2d 450, 455.)
Admission under Section 1101, subdivision (b)
Defendant contends the court erred in admitting the testimony of W. and C. under section 1101, subdivision (b) to prove a common plan or scheme in molesting girls.
“ ‘The presence of a design or plan to do or not to do a given act has probative value to show that the act was in fact done or not done.’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 393.) “[I]n establishing a common design or plan, evidence of uncharged misconduct must demonstrate ‘not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’ ” (Id. at p. 402, internal quotation marks omitted.) Moreover, “the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. . . . [I]t need only exist to support the inference that the defendant employed that plan in committing the charged offense.” (Id. at p. 403.)
We review a court’s determination to admit evidence under section 1101, subdivision (b) for abuse of discretion. (People v. Carter (2005) 36 Cal.4th 1114, 1147-1148; People v. Kipp (1998) 18 Cal.4th 349, 369.)
The record reveals that L., W., and C., were all pre-adolescent girls around the same age when defendant molested them. The acts against L. and C. occurred around the same time. All three young girls stayed or lived with or near defendant, knew him, and trusted him at least insofar as they appeared comfortable being alone with him. The molestation of each took place in isolated buildings on or near his property. And, the misconduct with each girl included some sort of oral sexual activity, such as kissing or genital contact. Although the misconduct toward each victim may not be unique or distinctive, we do not conclude that the court abused its discretion in finding that the similarities implied the existence of a plan rather than a series of spontaneous acts.
Defendant notes evidence that he threatened W. and forcibly held C. by the ankles. However, he never used force or threats against L. According to defendant, that dissimilarity makes it unreasonable to infer a common plan or scheme.
However, the existence of marked dissimilarities between uncharged misconduct and the charged offense, while relevant in determining admissibility, does not automatically render the uncharged misconduct inadmissible to show a common plan or scheme. (See, e.g., People v. Balcom (1994) 7 Cal.4th 414, 419, 421, 424.) Nor do we find that the dissimilarity here negates the numerous similarities noted above.
Finally, any error in admitting the evidence under section 1101, subdivision (b) was harmless. The same evidence and additional evidence of uncharged misconduct against three other girls was alternatively and properly admitted under section 1108. Consequently, it is not reasonably probable defendant would have obtained a more favorable result had the court admitted W.’s and C.’s testimony only to show propensity and not also to show a common plan or scheme. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
Propriety of CALJIC No. 2.50.01
Defendant contends that the court erred in giving the 2002 revision of CALJIC No. 2.50.01, which tells the jury how to consider propensity evidence. He argues that the instruction permitted the jury to convict him if it found by a preponderance of the evidence that he committed the acts of uncharged misconduct. Thus, he claims the instruction lessened the prosecution’s burden to prove guilt beyond a reasonable doubt, in violation of his right to due process.
Defendant acknowledges that in People v. Reliford (2003) 29 Cal.4th 1007, the California Supreme Court upheld the 1999 version of the instruction, concluding that “no juror could reasonably interpret the instruction to authorize conviction of a charged offense based solely on proof of an uncharged sexual offense.” (Id. at p. 1015.) The court further found that it was not “reasonably likely a jury could interpret the instructions to authorize conviction of charged offenses based on a lowered standard of proof.” (Id. at p 1016.) Last, the court opined that the newer 2002 revision, which was given here, improved the 1999 version. (Ibid.)
Defendant concedes that we are bound to follow Reliford (see Auto Equity Sales v. Superior Court, supra, 57 Cal.2d at p. 455) and again raises his claim only to preserve the issue for federal review.
Failure to Give Supplemental Instruction on Oral Admissions
Defendant contends that the court erred by rejecting an instruction to supplement CALJIC No. 2.71, which defines an oral admission and warns jurors to view evidence of an admission with caution. Defendant’s supplemental instruction purported to explain why an admission should be viewed with caution. It stated, “The reasons why testimony of an out-of-court oral statement of a defendant should be viewed with caution are as follows: No class of evidence is more subject to error or abuse. Witnesses having the best motives are generally unable to state the exact language of a statement, and are liable, by the omission or the changing of words, to convey a false impression of the language used. Further, no other class of evidence affords the temptations or opportunities for unscrupulous witnesses to torture the facts or to commit open perjury, as it is often impossible to contradict their testimony.”
Defendant claims that the instruction accurately reflects the legal concepts expressed by the court in People v. Gardner (1961) 195 Cal.App.2d 829 (Gardner). He argues that unless jurors know why admissions should be viewed with caution, it is unlikely they would follow the simple warning in CALJIC No. 2.71.
A defendant has a right to an instruction that pinpoints the theory of the defense. (People v. Saille (1991) 54 Cal.3d 1103, 1119.) However, a court need not give repetitive or duplicative instructions. (People v. Berryman (1993) 6 Cal.4th 1048, 1079, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823; People v. Gatlin (1989) 209 Cal.App.3d 31, 44.) Nor need the court give a proposed instruction that misstates the law. (People v. Kearns (1997) 55 Cal.App.4th 1128, 1137.)
In Gardner, supra, 195 Cal.App.2d 829, the court held it was error not to warn jurors to view an oral admission with caution. (Id. at p. 831.) The court then explained that the primary reason for the warning “is the inability of a person to repeat exactly the words of another person.” (Id. at p. 832.) Noting the common law origins of the rule, the court opined that “[t]his kind of testimony is considered dangerous, first, because it may be misapprehended by the person who hears it; secondly, it may not be well remembered; thirdly, it may not be correctly repeated.” (Ibid.)
We conclude that the court properly refused defendant’s instruction. First, it is inaccurate and incorrect, in that it goes beyond what the Gardner court said or implied about evidence of oral admissions. In particular, Gardner does not suggest that no class of evidence (1) “is more subject to abuse or error” or (2) “affords the temptations or opportunities for unscrupulous witnesses to torture the facts or to commit open perjury” than testimony about a defendant’s oral admission. Moreover, that language is argumentative in suggesting that the witnesses who testify about what defendant said may be unscrupulous. Nor did the Gardner court suggest that “it is often impossible to contradict” the testimony about an oral admission. Finally, the proposed instruction as a whole erroneously implies that jurors should presume that evidence of oral admission is inaccurate.
Next, Gardner does not suggest that the basic warning in CALJIC No. 2.71 is inadequate by itself. We note that the warning became California law in 1872, when the Legislature enacted the Code of Civil Procedure, and former Code of Civil Procedure section 2061, subdivision (4) required that juries be instructed to view admissions with caution. (Gardner, supra, 195 Cal.App.2d at p. 832 [discussing history of the rule].) Although that section was repealed when the Evidence Code was enacted, and no similar provision was included in the new code, California courts maintained the rule, and the warning is embodied in CALJIC No. 2.71. However, we have found, and defendant cites, no case, before or after Gardner, suggesting that the basic admonition, standing alone, might be inadequate.
Furthermore, the Gardner court did not indicate that its explanation of the admonition should be part of a proper instruction or that without some explanation, jurors would ignore or not understand the basic warning. In our view, the reasons for the rule reflect common sense and experience concerning how people remember what others have said. Moreover, if those reasons are not self-evident, they can be emphasized during closing argument, especially when there is evidence suggesting that a witness had difficulty reiterating what he or she heard the defendant say.
Last, defendant cannot demonstrate that the refusal to give the proposed supplement instruction might compel reversal. His claim of prejudice is based on his statement about why he liked Mexico. He argues if the court had properly granted his motion to suppress and excluded all evidence of the uncharged misconduct, L.’s testimony and her mother’s statement would have been the only evidence of guilt. He opines that by itself, L.’s testimony would not have convinced the jury to convict him, and, if the court had given the supplemental instruction, the jury would have discredited the evidence of his statement to L’s mother.
Contrary to defendant’s claim, we presume the jury was able to understand and follow the court’s admonition to view his statement with caution. (See People v. Davenport (1995) 11 Cal.4th 1171, 1210 [absent contrary evidence, court may presume that jurors obey admonitions].) Moreover, during his closing argument, defense counsel urged jurors to use their common sense and reject L.s mother’s testimony as inherently unbelievable. Furthermore, the court properly admitted substantial evidence of uncharged misconduct. That evidence was far more probative of guilt and supportive of L.’s testimony than defendant’s statement about Mexico. Consequently, it is not reasonably probable defendant would have obtained a more favorable verdict had the court supplemented the basic warning with defendant’s proposed instruction. (See People v. Watson, supra, 46 Cal.2d at p. 836; e.g., People v. Earp (1999) 20 Cal.4th 826, 887 [failure to give defense pinpoint instruction harmless].) Indeed, in Gardner, the court concluded that the failure to give any admonition was harmless. (Gardner, supra, 195 Cal.App.2d at p. 833; People v. Lopez (2005) 129 Cal.App.4th 1508, 1529-1530 [failure to give CALJIC No. 2.71 harmless].)
Inadequate Instruction on Special Allegations
For purposes of determining whether to impose upper terms, the court instructed the jury to make findings on special allegations concerning potentially aggravating circumstances surrounding the commission of the offenses: whether (1) defendant occupied a position of trust with respect to L.; (2) defendant engaged in a plan to commit the charged offenses; and (3) L. was a particularly vulnerable victim. (See Cal. Rules of Court, rule 4.421(a)(3) [vulnerable victim], (a)(8) [planning], and (a)(11) [position of trust].)
Defendant claims the judgment must be reversed because the court did not expressly instruct jurors that the prosecution had the burden to prove the allegations true beyond a reasonable doubt. We disagree.
It is now settled that unless a defendant waives a jury trial on sentencing factors that support the imposition of an aggravated term under the Determinate Sentencing Law, such as those submitted to the jury in this case, those factors must be proved by the prosecution and found by the jury beyond a reasonable doubt. (See Cunningham, supra, 549 U.S. ___, ___ [127 S.Ct. 856, 868-871] [facts used to imposed upper term must be found by the jury beyond a reasonable doubt].) Thus, it is proper and appropriate for a court to specifically instruct the jury concerning the prosecution’s burden of proof.
In determining whether there was instructional error here, “ ‘we inquire “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’ [Citations.] In conducting this inquiry, we are mindful that ‘ “a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” ’ [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 957.)
The trial court gave CALJIC No. 2.90, advising jurors that a defendant is presumed innocent until the contrary is proved, and the presumption places upon the prosecution the burden to prove guilt beyond a reasonable doubt. As noted, the sentencing allegations here involved circumstances naturally and closely related to the commission of the offenses that were not themselves elements of the offenses. Indeed, the factual bases for the elements of the offenses, which the jury found beyond a reasonable doubt, and the undisputed evidence concerning L.’s age at the time of the offenses and defendant’s relationship to her unquestionably establish that defendant occupied a position of trust, planned his offenses, and took advantage of a particularly vulnerable—i.e., young—victim.
Given the close identity between the factual bases for the elements of the offenses and the factual bases for the special allegations and the jury’s findings and verdict, we do not find a reasonable likelihood that in finding defendant guilty, the jurors applied a lesser standard in determining the special allegation than it applied in determining the elements of the offenses themselves. Rather, we find that “the omission . . . was nonprejudicial since the court otherwise instructed on reasonable doubt.” (People v. Louis (1977) 75 Cal.App.3d 620, 625; accord, People v. Scott (2001) 91 Cal.App.4th 1197, 1211-1212 [failure to instruct that gang enhancement must be found beyond reasonable doubt harmless in light of other instructions].)
Defendant notes that the court instructed the jury that it could consider evidence that defendant committed other sexual offenses for certain purposes, if it found by a preponderance of the evidence that the defendant committed the other offenses.” (Italics added; see CALJIC No. 2.50.1.) He notes that the court also instructed the jury that it could use the other sexual offenses to corroborate L.’s allegations, if it found that there was “clear and convincing proof” of those offenses. (Italics added.) The court also defined preponderance of the evidence and clear and convincing proof. (See CALJIC No. 2.50.2.)
Defendant argues that these instructions conflicted with the reasonable doubt instruction and confused the jury concerning the standard applicable to the special sentencing allegations. However, the instructions that employed the preponderance-of-the-evidence and clear-and-convincing-evidence standards were both expressly limited to the use of one type of evidence in a narrow and specific context: determining whether defendant committed other sexual offenses so that evidence of those other offenses could be considered for other purposes. Only the court’s reasonable-doubt instruction directly and expressly related to whether defendant engaged in the conduct underlying the criminal charges against him. Consequently, we do not find a reasonable likelihood that the other instructions confused the jury and led it to apply a lesser standard to the special allegations.
Failure to Stay Punishment for Count 8
Defendant contends the court erred in imposing consecutive terms on counts 8 and 9. He claims the court should have stayed the term on count 8 under section 654. The record reveals that the conviction for Count Eight was based on defendant having L. place the condom on him; the conviction for Count Nine was based on his having intercourse with her. Defendant claims that placing the condom on him was merely incidental and preparatory to having intercourse.
Section 654, subdivision (a) provides, “An act or omission that is punishable in different ways by different provision of law shall be punished under the provisions that provide for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
“Section 654 . . . prohibits multiple punishment if the defendant commits more than one act in violation of different statutes when the acts comprise an indivisible course of conduct having a single intent and objective. ‘If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ [Citation.] In such a case, the defendant’s single intent and objective are treated as a single act.” (In re Jose P. (2003) 106 Cal.App.4th 458, 469.) “On the other hand, section 654 does not apply when the evidence discloses that a defendant entertained multiple criminal objectives independent of each other. In that case, ‘the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations.] The principal inquiry in each case is whether the defendant’s criminal intent and objective were single or multiple.’ ” (Ibid.)
On appeal, we view the evidence in the light most favorable to the respondent, presume in support of the sentencing order the existence of every fact the court reasonably could deduce from the evidence. We uphold the court’s factual findings, whether express or implied, if there is substantial evidence to support them. Whether the defendant had multiple objectives is a question of fact for the trial court, whose decision will be upheld on appeal if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730; People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313; People v. Monarrez (1998) 66 Cal.App.4th 710, 713.)
Generally, section 654 does not apply in cases involving multiple sex acts. (People v. Harrison (1988) 48 Cal.3d 321, 329 [multiple forcible sexual penetrations are exempt from § 654; each successive penetration justifies a separate sentence]; e.g., People v. Perez (1979) 23 Cal.3d 545, 551-554; People v. Phillips (1985) 169 Cal.App.3d 632, 642; People v. Blevins (1984) 158 Cal.App.3d 64, 71-72; People v. Reynolds (1984) 154 Cal.App.3d 796, 809-810; People v. Maese (1980) 105 Cal.App.3d 710, 726.)
Here, the court implicitly found that defendant intentionally sought separate and independent gratification from having L. put a condom on his penis and then having intercourse with her. Defendant concedes that wearing a condom may not have been necessary, but he argues that he did so to protect L. and therefore its placement was a precaution intended only to prepare for and facilitate the act of intercourse.
However, if precaution incidental to intercourse had been defendant’s only intent, then he could have put the condom on himself. Moreover, defendant overlooks what made placing the condom on him a crime: He had L. do it. As noted, having her unroll the condom on him reasonably supports an inference that he sought additional pleasure and arousal from her touching him during the process that was separate and independent from what he later intended to derive from having intercourse with her.
Disposition
The judgment is affirmed.
WE CONCUR: elia, J., MIHARA, J.
The Legislature has amended, repealed, and reenacted section 803 a few times since 2000. Most recently, in 2005, the Legislature repealed and reenacted it, redesignating former section 803(g) as section 803, subdivision (f). (See stats. 2005, ch. 2, §§ 1-3; amended stats. 2005, ch. 479, § 3.) However, the pertinent provisions of former section 803(g) and current section 803, subdivision (f) are the same.