Opinion
G048663
09-03-2014
THE PEOPLE, Plaintiff and Respondent, v. MARTIN LEIF BUSETH, Defendant and Appellant.
Eric Weaver, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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(Super. Ct. No. 10SF0382) OPINION Appeal from a judgment of the Superior Court of Orange County, James Edward Rogan, Judge. Affirmed. Eric Weaver, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury found defendant Martin Leif Buseth guilty of one count of committing a lewd and lascivious act upon a child under 14 years old. The trial court found Buseth had suffered a prior conviction in the State of Michigan for assault with intent to commit criminal sexual conduct involving sexual penetration. The court concluded that offense constituted both a serious and violent felony.
We affirm. The trial court did not err by admitting evidence, under Evidence Code section 1108, showing Buseth previously committed other sexual offenses. The court properly exercised its discretion under Evidence Code section 352 before admitting that evidence. Buseth's trial counsel did not render ineffective assistance by failing to object to the portions of the prosecutor's closing argument in which the prosecutor referred to Buseth's prior sexual offenses.
FACTS
In 1994 or 1995, M.M. and Buseth were married. In 1995, they had a daughter, C. When C. was three or four years old, Buseth moved out; ultimately, M.M. and Buseth divorced.
C. sometimes visited Buseth at his home in San Clemente, where she and her younger brother would sleep in Buseth's bedroom. C. and her brother would sleep in Buseth's bed, and Buseth would sleep at the foot of the bed. C. would wear a nightgown or one of Buseth's shirts when she spent the night. She would not always wear underwear.
On one occasion, when C. was eight years old, she was sleeping in Buseth's bed with her brother when, in the middle of the night, she was awakened and felt someone touching her "really hard" and "[a]ll over" her buttocks; she was not wearing underwear that night. She felt "some kind of cream thing" that "felt . . . sticky." C. pretended she was asleep, while the touching continued for about five minutes, before she turned around, saw Buseth kneeling next her, and asked him what he was doing. She saw "yellowish" cream on his hands, which she said felt "sticky." Buseth stopped touching her and told her he was looking for a shoe. On at least one other occasion, when C. was between eight and 10 years old, she woke up and saw Buseth masturbating in the bedroom where she and her brother slept.
When C. was 12 years old, she became defiant and began acting out against M.M.'s authority. C. used drugs, drank alcohol, smoked, stayed out all night with her boyfriend, lied, stole from a store, and hung out with the "wrong type of people." She got into fights with M.M. as well as Buseth's girlfriend. C. briefly lived with Buseth and his girlfriend from November 2008 until January 2009, then returned to live with M.M.
In February 2009, when C. was 13 years old, she told M.M. that Buseth had inappropriately touched her. M.M. had asked C. why she was so angry all the time, and C. had told her about Buseth's conduct because she "got tired of holding it in." M.M. reported what C. had told her to the principal of C.'s school, who in turn contacted the authorities.
At the time she told M.M. about Buseth's conduct, C. had no idea Buseth "had d[one] that to anyone else." Buseth's relative, S., testified that one day in 1986, when she was eight years old and living in Michigan, she came home from school with a stomach ache. Buseth, who was responsible for babysitting S. and her brother, told her he would "take care of it," then took her into the bedroom and locked the door behind them. He removed all of S.'s clothes, covered her face with a pillow, and "play[ed] with [her] private parts," including her "vagina and [her] butt," with his finger. Buseth told her not to tell her mother or brother what had happened. S. began to tell her older sister a year or two later, who brought their father into the conversation; the incident was reported to the police.
Another relative of Buseth, M., who was 37 years old at the time of trial, testified that when she was seven years old she lived with her mother, her brother, and
Buseth in her mother's house. Buseth would babysit when her mother was at work or out with her new husband. One day, Buseth took M. into her mother's room, laid her down on the bed, pulled down her pants, and rubbed lotion on her. He touched her buttocks and vagina. M. testified Buseth engaged in this conduct with her "for years"; she said it happened more than 10 times. She stated Buseth called it "lotion time." He told her not to tell anyone or he would get back at her. He scared her. He would be mean to her, "get in [her] face," and yell at her. M. tried to tell her mother what was going on, but her mother "blew it off."
When M. was 15 years old, Buseth came into the bedroom where she was asleep and attempted to perform oral sex on her. She tried to kick him, but her foot slipped. He grabbed M. and held her against the bed, with his hands over her mouth. He told her to be quiet, but she kept fighting him. Buseth's then wife, H., walked in. M. ran out of the room and told her mother. M.'s mother decided Buseth's conduct would be kept secret. M.'s mother threatened H. with losing custody of her son if she said anything.
PROCEDURAL HISTORY
Buseth was charged in an information with one count of committing a lewd and lascivious act upon a child under 14 years of age, in violation of Penal Code section 288, subdivision (a). The information further alleged Buseth was previously convicted in Michigan of committing a crime that constitutes a prior serious and violent felony within the meaning of Penal Code sections 667, subdivisions (d) and (e)(1) and 1170.12, subdivisions (b) and (c)(1), and a serious felony within the meaning of section 667, subdivision (a)(1).
The prosecution filed a notice to use prior or subsequent acts pursuant to Evidence Code sections 1101, subdivision (b), 1108, and 1109. The prosecution's notice stated in part: "The People currently intend on using statements, witnesses and evidence from prior criminal acts committed by the defendant. Specifically the defendant is alleged to have committed similar acts involving the molestation of 2 other juvenile females. Both victims believe that the acts occurred around 1998. The defendant [pled] guilty to a Michigan offense for assault with intent to commit sexual penetration as to one of the female victims." The prosecution also filed a motion to introduce evidence pursuant to sections 1101 and 1108, and the fresh complaint doctrine. The trial court ruled the evidence of Buseth's prior sexual offenses was admissible.
The jury found Buseth guilty of committing a lewd and lascivious act upon a child, as charged in the information. The trial court found the prior conviction allegations in the information true. The court sentenced Buseth to a total prison term of 17 years. Buseth appealed.
DISCUSSION
I.
THE TRIAL COURT DID NOT ERR BY ADMITTING EVIDENCE OF BUSETH'S PRIOR SEXUAL
OFFENSES AGAINST S. AND M. UNDER EVIDENCE CODE SECTION 1108.
Buseth argues the evidence that he committed prior sexual offenses against S. and M. should not have been admitted under Evidence Code sections 1108 and 352. For the reasons we will explain, the trial court's admission of that evidence was not error.
A.
Applicable Legal Principles
"Character evidence, sometimes described as evidence of a propensity or disposition to engage in a type of conduct, is generally inadmissible to prove a person's conduct on a specified occasion. [Citations.] . . . The Legislature has . . . created specific exceptions to the rule against admitting character evidence in cases involving sexual offenses [citation], and domestic violence, elder or dependent abuse, or child abuse [citation]. [Citation.]" (People v. Villatoro (2012) 54 Cal.4th 1152, 1159, italics added.) Evidence Code section 1108, subdivision (a) provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." (See People v. Falsetta (1999) 21 Cal.4th 903, 911.)
In People v. Falsetta, supra, 21 Cal.4th at page 915, the Supreme Court stated: "As the legislative history indicates, the Legislature's principal justification for adopting [Evidence Code] section 1108 was a practical one: By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations. Section 1108 provides the trier of fact in a sex offense case the opportunity to learn of the defendant's possible disposition to commit sex crimes."
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." The California Supreme Court, in People v. Falsetta, supra, 21 Cal.4th at pages 916-917, stated the trial court's "careful weighing process under section 352," before admitting evidence of a prior sex offense under Evidence Code section 1108, involves consideration of "its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (See People v. Kipp (2001) 26 Cal.4th 1100, 1121 [trial court's decision to admit evidence under section 352 is reviewed for abuse of discretion]; People v. Williams (1997) 16 Cal.4th 153, 213 [same].)
B.
The Trial Court's Ruling
At the hearing on the motion to admit evidence under Evidence Code sections 1108 and 352, the trial court stated:
"Listening to the arguments of counsel and considering the court's obligations under 1108 of the Evidence Code and also under section 352 the court finds with respect to [S.] and [M.] that is relevant and probative evidence. It is not unduly prejudicial within the meaning of Evidence Code section 352.
"People versus Alexander 49 Cal.4th 846 held that prejudice under section 352 means it would evoke an emotional bias against a defendant and has very little effect on the issues. It is not synonymous with damaging. Evidence will not be excluded unless it imposes an intolerable risk[] to the proceedings fairness or the outcome reliability. The court, as I indicated, finds this to be relevant and probative and not unduly prejudicial.
"Now with respect to [H.], quite frankly, counsel, I would be prepared to find that may be unduly time consuming but let me just discuss this with you.
"Let's say [M.] got on the witness stand[] and testified and was not subject to any potential cross-examination that cast doubt upon the reliability. If that were the case, then [H.]'s testimony could be duplicative, it could be unduly time consuming, and it could be cumulative.
"Quite frankly, I don't think the defense can allow [M.] to get up and testify without subjecting her to that sort of cross-examination; and the court will rule on [H.]'s testimony if at such time the People want to call her. But my preliminary feelings are that if through cross-examination there are implications or suggestions that she is fabricating, then it would become relevant and probative as to corroborate [M.]; but, again, I have to wait and see how that shakes out.
"My suspicion is, [defense counsel], you will subject her to rigorous cross-examination.
"With respect to some of the factors raised by [defense counsel], I'm sensitive to them. Those factors appear to be right for defense cross-examination, but not for determinative with respect to admissibility for propensity evidence under section 1108.
"In that the court has ruled pursuant to 1108, I don't think I need to address the 1101(b) issues and will decline to do so at this time." (Italics added.)
C.
The Trial Court Did Not Err by Admitting Evidence
of the Prior Sexual Offenses.
The trial court understood its discretion under Evidence Code section 352 and exercised that discretion on the record in admitting the evidence of Buseth's prior sexual offenses under Evidence Code section 1108. Buseth contends that evidence should have been excluded because it lacked probative value, and any probative value it might have had was substantially outweighed by the presentation of such evidence necessitating an undue consumption of time and by its prejudicial effect. Buseth's arguments are without merit.
1.
The Evidence Admitted Under Evidence Code Section 1108 Was Probative.
Buseth argues the evidence of his prior uncharged sexual offenses, admitted under Evidence Code section 1108, lacked probative value because it showed he engaged in conduct that was remote in time from, and insufficiently similar to, the instant offense committed against C.
"'No specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible.' [Citation.] '"[S]ubstantial similarities between the prior and the charged offenses balance out the remoteness of the prior offenses. [Citation.]" [Citation.]'" (People v. Robertson (2012) 208 Cal.App.4th 965, 992.) "Numerous cases have upheld admission pursuant to Evidence Code section 1108 of prior sexual crimes that occurred decades before the current offenses." (Ibid.; see People v. Waples (2000) 79 Cal.App.4th 1389, 1395 ["20 years is not too remote" for purposes of admission of prior sexual offense evidence under Evidence Code sections 1108 and 352].)
Here, the evidence admitted under Evidence Code section 1108 showed Buseth committed sexual offenses dating back several decades before the instant offense, but it also showed Buseth engaged in sexual offenses "for years." The remoteness of the prior sexual offenses is more than balanced out by their substantial similarity to the charged offense. The instant offense against C. and the prior offenses against S. and M., all involve Buseth touching the buttocks of a seven- or eight-year-old female relative while he was responsible for the care of the child in the home. This case is thus distinguishable from People v. Earle (2009) 172 Cal.App.4th 372, 378, 380, in which the defendant was charged with committing two different sexual offenses (indecent exposure and assault to commit rape) against separate victims. The appellate court concluded the trial court erred by denying the defendant's motion for separate trials of the offenses. (Id. at p. 379.) The appellate court reasoned, "a propensity to commit one kind of sex act cannot be supposed, without further evidentiary foundation, to demonstrate a propensity to commit a different act." (Id. at p. 399.)
This case is also distinguishable from People v. Jandres (2014) 226 Cal.App.4th 340, 357, in which the appellate court held the prejudicial effect of the evidence that the defendant had engaged in a prior sexual offense by placing his finger in the mouth of an 11-year-old girl substantially outweighed its "low probative value" in the trial of a charge alleging the defendant raped an 18-year-old woman. The court explained: "[T]he pertinent inquiry is whether evidence that defendant exhibited sexual interest in an 11-year-old girl by putting his finger in her mouth rationally supports an inference that defendant is predisposed to rape an 18-year-old woman. Given the many differences between the two offenses—including the circumstances (daytime attempted burglary in one case, possible stalking and attack at night in the other); the ages of the victims (11 and 18); and the nature of the conduct (inappropriate touching of the mouth in one case, rape in the other)—we think not." (Id. at p. 356.)
Unlike the offenses involved in People v. Earle and People v. Jandres, here, the prior sexual offenses were similar in several respects to the charged offense committed against C. Therefore, evidence of those prior sexual offenses was probative to show Buseth's disposition to commit sexual offenses against young female relatives.
2.
The Trial Court Properly Exercised Its Discretion in Concluding
the Probative Value of the Evidence of the Prior Sexual Offenses
Was Not Substantially Outweighed by the Probability Its Admission
Would Necessitate an Undue Consumption of Time or Create
Substantial Danger of Undue Prejudice.
Buseth argues the admission of the evidence of his prior sexual offenses resulted in an undue consumption of time. He also argues the probative value of that evidence was outweighed by its prejudicial effect.
The trial court did not abuse its discretion in concluding the presentation of evidence of Buseth's prior sexual offenses would not consume an undue amount of time and, indeed, the presentation of such evidence at trial did not require an undue amount of time. Before trial, the court stated it would not permit Buseth's former wife, H., to testify about what she had seen when she walked in on Buseth's final sexual assault of M. because it would be redundant of M.'s testimony. The court explained it would allow H.'s testimony, however, if Buseth's trial attorney cross-examined M. in such a manner as to question her veracity or accurate recollection of what had occurred. As Buseth's counsel subjected M. to a rigorous cross-examination during which she challenged M.'s credibility, the trial court permitted H. to testify about what she had seen when she walked into the bedroom when Buseth was attempting to sexually assault M. The record thus shows the trial court's keen awareness of the factors involved in the admission of evidence under Evidence Code section 352, as the court continued to balance them in determining the admissibility of evidence related to Buseth's prior sexual offenses throughout the course of trial.
The evidence of Buseth's prior sexual offenses was not unduly prejudicial so as to substantially outweigh its probative value. As discussed ante, the prior offenses bore similarities to the instant offense against C. Nothing in the record suggests the jury was inclined to punish Buseth for committing the prior sexual offenses instead of, or in addition to, the charged offense, or the jury was otherwise confused by that evidence. We recognize a few of the prior sexual offenses involved forms of sexual conduct other than that charged in this case, such as oral copulation of M. and touching of the vaginal areas of S. and M. The record shows the trial court carefully conducted its Evidence Code section 352 analysis and did not abuse its discretion in concluding the probative value of that evidence was not substantially outweighed by its prejudicial impact.
II.
BUSETH'S TRIAL COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO PORTIONS
OF THE PROSECUTOR'S CLOSING ARGUMENT.
Buseth argues he was "afforded constitutionally ineffective assistance of counsel when his counsel failed to object to the prosecutor's misconduct in asking the jury to convict [Buseth] because he escaped prosecution for the [M.] incidents." (Capitalization omitted.) (See People v. Panah (2005) 35 Cal.4th 395, 462 [the defendant forfeited claim of prosecutorial misconduct in closing and rebuttal arguments by failing to object to challenged portions and request an admonition to the jury].) To prevail on a claim of ineffective assistance of counsel, the defendant must prove (1) the attorney's representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional standards; and (2) the attorney's deficient representation subjected the defendant to prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Cain (1995) 10 Cal.4th 1, 28.) For the reasons we will explain, Buseth's trial counsel's representation was not deficient for her failure to challenge the prosecutor's closing argument.
During her closing statement, the prosecutor stated: "In this case you heard evidence that these crimes went unspoken for over 20 years involving M[.], involving S[.], they went for a couple years involving [C.]. And these crimes of child molestation on children destroy a child's spirit. When a child is molested by a father or an uncle or anyone, it impacts their life, it derails the path that their life has. [¶] The child molester doesn't care, Mr. Buseth doesn't care. But we saw how what Mr. Buseth did to M[.], to S[.], and to his own daughter, how it impacts a child's life and how that child may act out, may make bad choices, may have a lack of self-esteem because of that violation. That's commonsense. You all know that. [¶] You know what the crime does to children, what it does to anyone and then you got to see it and you got to feel it and you got to see from M[.] that over 25 years later what [Buseth] did to her as a little girl and her family didn't support her, how it impacted her, how it affected her, how it traumatized her. You got to see that from S[.] and you got to see . . . it [from] C[.]."
The prosecutor then discussed CALCRIM No. 1191, which addressed the jury's consideration of the evidence of uncharged sexual offenses that was presented at trial. After stating that CALCRIM No. 1191 was "extremely important in this case," the prosecutor further stated: "This is the law that allows you as jurors to go all right, what do we do with all that evidence? What do we do with all that we heard from M[.] and all that we heard from S[.]? Why did we hear from them? This is [sic] charge is for C[.]. Why did we get to look at the full picture of someone? Why did we get to hear about what he did in the past? Why is that important and CALCRIM 1191 tells you why. That's the one to follow when you are looking at this evidence. And believe me if . . . I [could] charge him with what he did to M[.] 25 years ago, I would."
The version of CALCRIM No. 1191 that was given to the jury stated: "The People presented evidence that the defendant committed the crimes of lewd act upon a child under 14 that . . . were . . . not charged in this case. . . . These . . . crimes . . . are . . . defined for you in these instructions. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit the crime alleged in count 1, as charged here. If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the alleged crime in count 1. The People must still prove . . . the . . . charge . . . beyond a reasonable doubt." (Italics added.) Buseth neither challenges the correctness of CALCRIM No. 1191 nor the propriety of it being given to the jury.
During closing argument, the prosecutor also stated, "[w]hat I thought . . . was interesting and very telling is the one girl, M[.], if there has to be a scale of these crimes, they are all horrendous and they are all wrong and they are all disgusting. But M[.] endured this for the longest period and is there any telling—any reason why that poor woman had to come in here and talk about it and she broke down and all the emotions. [¶] Years of experiencing this type of abuse by [Buseth]. No one stood up for her. She had no one to tell, no one to save her. All these children had a right to be safe in their home. All these children had a right to feel free from harm. All of these children had a right to feel safe with [Buseth]. He didn't care. He violated all of that. Three decades of molesting by him."
The prosecutor continued: "So you take that evidence and you apply it to the law, CALCRIM 1191, was he disposed or inclined to commit the sexual offense to C[.], you bet. Look at the evidence here that we have . . . . All three girls individually came into court and circled where they got touched by the defendant. Vagina or buttocks. It's his signature crime. [¶] And I hope you picked up on the lotion that was a key event because M[.] back in the late 1980's was getting molested and . . . defendant, was calling it lotion time. C[.] wasn't even born then, right? She was born in 1995 and that poor girl in 2003 wakes up to her creepy dad's hand on her buttocks with lotion because it's a signature crime, because that's what he does, because he is sexually attracted to little girls, and he uses lotion on their buttocks. Very telling."
Buseth argues the prosecutor engaged in misconduct because she tried to persuade the jury to punish Buseth for committing the prior sexual offenses on the ground he would commit crimes in the future and thus posed a danger to police and society in general. Buseth argues, "[t]he prosecutor's argument is . . . exactly what other crimes evidence may not be use[d] for. The prosecutor asked the jury to make up for the fact that she could not charge [Buseth] with . . . M.'s allegations by convicting [Buseth] in this case. To [e]nsure conviction, the prosecutor added that the jury should convict [Buseth] now because M[.] suffered so much in the past."
The prosecutor did not argue that the jury should return a guilty verdict in order to punish Buseth for his past conduct. To the contrary, the prosecutor expressly urged the jury to pay particular attention to CALCRIM No. 1191, which instructed, inter alia, that even if the jury found Buseth committed any of the prior sexual offenses, the prosecution must still have proven the offense against C. beyond a reasonable doubt.
The prosecutor's discussion of M.'s demeanor on the witness stand and testimony regarding her suffering as a result of Buseth's prior conduct addressed Buseth's counsel's cross-examination of M. challenging her credibility. The prosecutor also addressed the similarities between Buseth's prior sexual offenses and his offense against C., in support of her argument that Buseth had a disposition or inclination to commit sexual offenses against young girls. The prosecutor's comments were not improper but, instead, were in line with CALCRIM No. 1191. Buseth's counsel, therefore, was not ineffective for failing to object to them.
DISPOSITION
The judgment is affirmed.
FYBEL, J. WE CONCUR: O'LEARY, P. J. THOMPSON, J.