Opinion
C047892
12-14-2006
THE PEOPLE, Plaintiff and Respondent, v. ANDREW BRENT S., Defendant and Appellant.
A jury convicted defendant Andrew Brent S. of attempted aggravated sexual assault of a child (Pen. Code, §§ 269, subd. (a)(1), 664), as a lesser included offense of aggravated sexual assault of a child; 11 counts of lewd acts with a child under age 14 (§ 288, subd. (a)); and one count of forcible lewd acts with a child under age 14 (§ 288, subd. (b)(1)). The jury found that defendant engaged in substantial sexual conduct during four of the lewd acts. (§ 1203.066, subd. (a)(8).) He was sentenced to state prison for 35 years.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court erred by failing to instruct the jury sua sponte that evidence of his bad acts could not be used to prove his bad character or criminal propensity. Alternatively, he claims his trial counsel rendered ineffective assistance by failing to request such an instruction. We shall affirm the judgment.
FACTS
Prosecution case-in-chief
Defendants daughter, A.J., was born in November 1988. From the age of approximately six, she resided with her maternal grandparents, S.J. and An.J., in Grass Valley.
When A.J. was about 10 years old and in the fifth grade, she would visit defendant who resided with his brother in Sacramento. Customarily, she would sleep in defendants bed. On one occasion, while she was sleeping in his bed, she was awakened by him removing her shirt and rubbing her bare chest with one hand "touching [her] inappropriately." The touching continued for about five minutes. Defendant then pulled A.J.s shorts down to her knees and rubbed her bare "privates."
Defendant placed his fingers inside A.J.s "privates," scratching her and causing her pain. She attempted to stop him by rolling over. He then resumed rubbing her chest and reinserted his fingers in her "privates." He ignored her request to "stop" and continued touching her "privates" for several minutes. When he finally stopped, he told her that if she told anyone, he would kill her entire family. Fearful of him, she did not inform anyone about the incident.
The next time A.J. visited defendant, he again touched her chest and her "privates." She was afraid and attempted to stop him by rolling over. Again, she never reported the incident because of his threat.
While A.J. was 10 years old, there were at least 20 incidents in which defendant rubbed her chest and "privates" and inserted his finger inside her. Before A.J. turned 11, defendant moved from his brothers residence to his parents residence, also in Sacramento. Some of the approximately 20 incidents took place at that residence.
When A.J. was 11 years old and defendant was residing with his parents, she again slept in the same bed as he. On one occasion, she was awakened by him removing her clothes. Although she attempted to push him away and told him to stop, he touched her chest and removed her pajama shorts. While she was on her back she attempted to push him off by squirming and trying to kick his legs. He was behaving "more forceful" than usual. She tried to keep her legs closed, but he pried them open with his knees and inserted his penis "less than a half inch" into her vagina. She experienced a "jabbing pain" that "hurt a lot." As she squirmed, he moved up and down. She later felt something coming out of his penis and wetting her "privates." She was scared, confused, and crying because of the pain. Again, she did not report the incident to anyone because of his threat to kill her family.
When A.J. next visited defendant at his parents house, he again rubbed her chest and tried to put his penis in her vagina. Similar incidents occurred during the remainder of A.J.s 11th year and during her 12th and 13th years.
When A.J. was ages 11 and 12, defendant did things of a sexual nature almost every time she visited him. More than 20 times during this period, he rubbed her chest and/or her privates, skin to skin. She did not report the incidents because she was afraid that he would kill her whole family.
On one occasion while A.J. was 11 or 12, defendant removed her clothing, rolled her onto her stomach, held her down and placed his penis in her anus. She experienced a jabbing pain, and she yelled and cried for him to stop. Again, because of his threat, she did not report the incident.
Defendant sodomized A.J. on two more occasions, both at his parents residence. On each occasion she experienced pain and was unable to stop him.
On a Saturday in November 2001, approximately two weeks after A.J.s 13th birthday, defendant entered the bathroom where she was taking a bath and began taking photographs of her. She told him to "get away."
The next day, defendant returned from work at approximately 1:00 to 1:30 p.m. and took A.J. to his parents residence. At about 2:00 p.m., A.J., who was taking a nap, was awakened by defendant removing her clothes. Defendant was naked. He forcefully removed her shorts and underwear. He held her down on her back using his arms and knees to restrain her and force her legs open. She was unable to kick him off of her. He was "really forceful," "worse than all the other times," and used all his strength to accomplish the act. He put his penis in her "really far and it hurt," causing her "jabbing pain." He remained inside her for "about a couple minutes," moving up and down, and holding her down. Eventually, a wetness came out of him. She hurt more than ever before, even after he removed his penis.
Defendant left the room, returned with a camera, spread A.J.s legs and took photographs of her "privates." After this incident, they went to his workplace. She did not report the incident to anyone because she feared him.
The next day (Monday), one of A.J.s school classmates spoke about how her father had raped her sister. A.J. exclaimed, "That happened to me what happened to your sister." Another of A.J.s classmates reported the incident to school authorities.
The following day, A.J. reported the rape incident to a school counselor. Ultimately, A.J. was transported to a medical center and underwent an interview and physical examination. During the interview, A.J. reported defendants threat that he would kill her if she reported the incidents.
The physical examination revealed a bruise on A.J.s hymen, which indicated a sexual assault. A.J.s complaint of burning urination was consistent with being penetrated by a penis.
A.J.s maternal grandmother, who cared for her during this period of time, testified that on many occasions A.J. did not want to visit defendant and would go to his home only if she was assured that defendants mother would also be there. A.J. did not want to visit defendant when he was there alone.
Defense
Defendant testified on his own behalf. He denied molesting, raping, or photographing A.J. He specifically denied taking any nude photographs of her.
DISCUSSION
Defendant contends he was deprived of his state and federal due process and jury trial rights because the trial court did not instruct the jury on its own motion that evidence of his bad acts could not be used to establish that he had a bad character or criminal propensity. Alternatively, he contends his trial counsel rendered ineffective assistance by failing to request such an instruction. Neither claim has merit.
Background
Before the presentation of evidence, the prosecutor indicated that there was a possibility he would seek to introduce prior incidents in which defendant had contact with law enforcement officers. He explained that, in 2001 and 2002, there were two separate incidents in which the police came to defendants house "because of a weapon being discharged. He said he was responding by firing the weapon at some alleged robbers that were in his house. They arrested him for negligent discharge of a firearm and possession of drugs and possession of needles." Law enforcement learned that defendant "was selling drugs both out of his house and to his roommate and in [his workplace]." Defendant told law enforcement that he sold drugs "to anyone he can. He does not discriminate," were the words the prosecutor believed he used. The prosecutor represented that A.J. "is aware of that event."
The prosecutor further explained that, during a visit to the California State Fair with A.J., defendant "was so intoxicated that he was arrested on 467, being drunk in public." A.J. was "left alone at the fair," and eventually her grandmother or grandfather came and picked her up.
The prosecutor noted that he "would not be introducing these in at this point. We dont intend to unless evidence comes forth through the defense or defense questioning suggesting that [A.J.] is making this up in order to have an excuse not to be around" defendant. The prosecutor stated he would "make up an instruction that its not to show that [defendant]is a bad person" but is to show A.J.s knowledge of the events, which may or may not have "affected her decision to disclose or not disclose sexual molest." (Italics added.)
In her opening statement, defendants trial counsel asserted that defendant had told A.J. of his intent to seek legal custody of her, but she did not want to leave her friends in Grass Valley. Counsel theorized that "it is a change of custody that caused these allegations to be made against" defendant.
Outside the jurys presence, the prosecutor acknowledged that the defense theory would be that A.J. "had the desire to avoid any custody change and that therefore the reason she is saying what she is saying is because she is making something up in order to avoid a custody change." He argued, "it would then be relevant to show that many bad things had been occurring and yet [A.J.] still returned down to see [defendant] with knowledge of those bad things having occurred and that this would basically negate the defense argument that she had to make things up in order to avoid a custody change." In addition to the foregoing acts, the prosecutor referred to an incident in which A.J. "fled to a neighbors house because [defendant] was so intoxicated and had a gun and [A.J.] was afraid and she called from the neighbors house," and her grandfather picked her up.
The trial court tentatively ruled that the prior bad acts evidence would be admissible to show that A.J. "didnt need to use a manufactured, sexual abuse claim" in order to "prevent a custody change." Rather, "there were other grounds that she had available to her and that she could have used" to defeat a custody change. The court stated it had "some [Evidence Code section] 352 concerns," and that it would need more information and possibly an Evidence Code section 402 hearing before the evidence was admitted.
The prosecutor noted that he had provided a suggested instruction to the court and the defense, in order "to eliminate any potential misuse of the information."
Evidence of defendants drug use first surfaced when A.J. testified on direct examination that defendant took non-prescription pills "all the time," and in particular took "more than five" before driving her home on a Sunday in November 2001.
During her cross-examination of A.J., defendants trial counsel inquired: "Did anything other than the sexual stuff happen bad with your dad?" She responded, "He would get drunk a lot and take like a lot of pills." She then elaborated on defendants drinking and his use of pills.
During a subsequent recess, the prosecutor informed the court that, in light of the opening statements and the cross examination of A.J., he was proposing to ask her about "any prior arrests or other bad conduct" of defendant.
The trial court acknowledged the defense theory that "[A.J.] made this up in order to prevent her father from getting custody." It ruled that the defense cross-examination had placed "her state-of-mind as to why she reported" the incidents "squarely in issue," and that "the defense opened the door when the defense asked the question were there any other bad incidents other than the sexual molestations that occurred regarding your father. . . . And so the district attorney is entitled to follow-up on that." The court concluded the proposed questions were not cumulative to what A.J. had already testified to. The questions would not prejudice defendant "because the jury would be instructed that its only being offered for her state-of-mind . . . ." (Italics added.)
The prosecutor said he would ask A.J. "something to the effect of were there other events involving your father that were none [sic] sexual that either caused you some sort of fear or dislike or being upset with him. And those were things I told her previously that she could not answer unless I specifically asked them. And I think she will go into the fair incident as well as being aware of the gun, gun slash drug incident."
The trial court "caution[ed]" the prosecutor that, if he used the evidence in his summation, he should "ensure that the jury is not confused. Say remember you were given a limiting instruction about certain kinds of evidence. Now Im going to tell you how this would apply towards her state-of-mind and then do it so there would be no question that that is what were talking about." (Italics added.)
On redirect examination, the prosecutor elicited A.J.s acknowledgment that she had seen defendant do "other bad things" that she "could have told people about." One of those things was defendant getting "really drunk" at the state fair after drinking and taking pills. A.J. was so scared by defendants "acting like crazy," "like cussing a lot and like shouting and saying random things to random people," that she contacted police who took her to "the security place" and telephoned defendants brother, who came and got her. Defendant "went to jail."
A.J. testified that she twice saw defendant with a gun. On one occasion, when she was 12, she had seen him drink beer and take nonprescription pills. He became drunk and out of control. She got scared, fled to a neighbor, and telephoned her grandmother. When the neighbor refused to return A.J. to defendant, he pulled the gun on them.
A.J. testified that, when she was 12, she had heard from both of her grandmothers that defendant had "pulled a gun on some people that came to his house." This report made her "kind of scared" and reluctant to visit defendant.
The trial court interrupted the prosecutors examination of A.J. and gave the jury a limiting instruction, as follows:
"All right. Ladies and gentlemen, [A.J.] just testified about something that she heard. Now, Im instructing you now on the limiting instruction I told you about a long time ago which is when she relates about what somebody else told her that is not being offered for the truth of whether or not that alleged event or act occurred. Its only being offered as it goes to [A.J.s] mental state. [¶] . . . [¶] To the event [sic] that she personally observed anything there is no limiting instruction. To the extent that she tells you she heard something from someone whatever it is that she heard is not being offered to show that whatever it is actually happened or its true. But its only offered for her state-of-mind. [¶] . . . [¶] But I will add as an addition to the limiting instruction, that evidence that is being offered for her state-of-mind is clearly also not being offered as to the underlying charged events; whether they occurred or not or whether or not [defendant] has any particular character. Again, because theyre not being offered for the truth."
Evidence of defendants bad acts was later elicited during the recross examination of A.J., the direct and cross examination of grandmother S.J., the direct and cross-examination of defendant, the direct and cross-examination of his brother, the direct examination of his sister-in-law, the direct and cross-examination of his stepfather, the cross-examination of his friend, and the direct examination of his mother.
The stepfathers testimony introduced an additional bad act: at A.J.s request, the stepfather picked up A.J. and defendant from a concert because his drinking made it unsafe for him to drive.
The trial court instructed the jury pursuant to CALJIC No. 2.09 that "[c]ertain evidence was admitted for a limited purpose. At the time this evidence was admitted you were then instructed that it could not be considered by you for any purpose other than the limited purpose for which it was admitted. Do not consider this evidence for any purpose except the limited purpose for which it was admitted."
In summation, the prosecutor addressed the gun evidence and the drug evidence. Regarding the former, he argued: "In her mind he is someone that has had possession of a gun on other occasions. [¶] Now, you dont convict [defendant] because he had a gun in the past, but you do factor in on how that weighs on her mind-set as a child. Consider how that weighs upon a very young child 10 years old, 11 years old, 12, 13. Is she someone who is going to go rush and tell somebody . . . ?"
Regarding the drug evidence, the prosecutor argued: "[A.J.] described it as the period that [defendant] had some sort of drug and drinking problem, and the facts of that play out with all the witnesses that came in here. [¶] [Defendants] brother had to go pick up [A.J.] at the fair. [Defendants] father said, Yeah, my son had illegal drugs one year ago and four years ago. [Defendant] himself said, No, I dont use illegal drugs. But his father said something different. Its interesting that he would lie to you about illegal drugs. He is not on trial for illegal drugs. So why does he feel he has to lie to you about illegal drugs? [Defendant] likes to lie just about everything. His father told you he had illegal drugs. And you dont convict him again for having illegal drugs. That is not what the case is about. But you evaluate whether he is someone that is going to tell you the truth."
Analysis
Defendant claims the trial court was required to give CALJIC No. 2.50 sua sponte. We disagree.
Defendant claims the trial court should have given a modified version of CALJIC No. 2.50 as follows:
"Evidence has been introduced alleging that the defendant committed offenses other than those for which he is on trial. These alleged offenses involve the misuse of alcohol, drugs, or guns.
"This evidence, if believed, may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show [A.J.s] state of mind or reflects on a witnesss credibility.
"For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in this case.
"You are not permitted to consider such evidence for any other purpose."
"When evidence is admissible . . . for one purpose and is inadmissible . . . for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly." (Evid. Code, § 355; italics added.) "Thus, although a court should give a limiting instruction on request, it has no sua sponte duty to give one. (People v. Jones (2003) 30 Cal.4th 1084, 1116 [no sua sponte duty to give instruction limiting gang membership evidence]; People v. Collie (1981) 30 Cal.3d 43, 63-64 [no sua sponte duty to give limiting instruction on evidence of past criminal conduct].) Collie, supra, at page 64, recognizes a possible exception in `an occasional extraordinary case in which unprotested evidence . . . is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose. (See People v. Farnam (2002) 28 Cal.4th 107, 163-164.) This is no such extraordinary case." (People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052.)
First, the bad acts evidence was not a "dominant part of the evidence against the accused." (People v. Hernandez, supra, 33 Cal.4th at pp. 1051-1052.) The dominant parts were the testimony of A.J. and, to a lesser extent, the persons who received her disclosure and conducted the medical investigation. By contrast, the bad acts evidence merely rebutted defendants contention that A.J. fabricated the charges in order to defeat his attempt to obtain custody.
Second, the bad acts were not "highly prejudicial," because they did not tend to evoke, either singly or in combination, the sort of "`emotional bias against defendant" that the charged incestuous acts of aggravated sexual assault, forcible lewd conduct, and lewd conduct, necessarily tended to evoke. (People v. Hernandez, supra, 33 Cal.4th at pp. 1051-1052; People v. Kipp (2001) 26 Cal.4th 1100, 1121.) Neither the drunken brandishing of a firearm, nor the abuse of alcohol and other drugs, could conceivably "weigh too much with the jury," nor "overpersuade them," even though the direct evidence did not, that defendant perpetrated a years-long series of sexual assaults upon his minor daughter. (Michelson v. United States (1948) 335 U.S. 469, 475-476 .)
Defendant claims the prior incidents "could lead an unadmonished jury to conclude that [he] was such an irresponsible parent that his using his own daughter as a sex object would not be out of character." We disagree.
The jury was instructed with CALJIC No. 2.01 on the sufficiency of circumstantial evidence. In order to find defendant guilty of the sex crimes based upon the circumstances of his prior alcohol, gun and pill use, the jury would have to find that those prior acts "cannot be reconciled with any other rational conclusion," except that he committed the sex crimes. Because defendant could have committed the prior bad acts without also committing the sex crimes, CALJIC No. 2.01 did not allow the jury to draw the inference he suggests.
Finally, because the bad acts evidence rebutted defendants fabrication defense, it cannot be dismissed as "minimally relevant to any legitimate purpose." (People v. Hernandez, supra, 33 Cal.4th at p. 1052.) Because this case does not satisfy any element of the Collie exception to Evidence Code section 355, the trial court had no duty to give CALJIC No. 2.50 on its own motion.
Thus, although the prosecutor commendably proposed a limiting instruction and the trial court correctly acknowledged its utility, the instruction was not within the courts sua sponte duty and its omission, although seemingly inexplicable, was not error.
Defendant contends that, if the trial court had no sua sponte duty to give CALJIC No. 2.50, then his trial counsel rendered ineffective assistance by failing to request it. We disagree.
"`"[If] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected. [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. [Citations.]" (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
In this case, defendants trial counsel was not asked for an explanation for his failure to request CALJIC No. 2.50, and he rationally could have believed that such an instruction would have called the jurys attention to evidence that he did not wish to emphasize. Thus, this is not a case in which there "simply could be no satisfactory explanation." (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
Alternatively, if defendants trial counsels performance was deficient, it could not have been prejudicial. "`"[I]n order to demonstrate ineffective assistance of counsel, a defendant must . . . show prejudice flowing from counsels performance or lack thereof. [Citation.] Prejudice is shown when there is a `reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citations.]" [Citation.]" (People v. Avena (1996) 13 Cal.4th 394, 418; fn. omitted.)
We have already explained that the circumstantial bad acts evidence was not prejudicial in light of the direct evidence of the sexual offenses. We have explained that the circumstantial evidence instruction did not allow the jury to reject the sex act evidence yet convict defendant based upon the circumstantial evidence of other bad acts. It is not reasonably probable that defendant could have obtained a more favorable result had CALJIC No. 2.50 been given. (People v. Avena, supra, 13 Cal.4th at p. 418.)
DISPOSITION
The judgment is affirmed.
We concur:
DAVIS, J.
HULL , J.