Opinion
NOT TO BE PUBLISHED
County of Santa Barbara Superior Court No. 1184442
Richard C. Gilman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
Michael Donald Cardoza appeals the judgment following his conviction for two counts of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)), two counts of oral copulation of a minor (§ 288a, subd. (b)(1)), one count of using a minor for sex acts (§ 311.4, subd. (c)), and the misdemeanors of child molestation (§ 647.6, subd. (a)) and sexual exploitation of a child (§ 311.3, subd. (a)). He contends there was insufficient evidence to support convictions for two violations of either subdivisions (b)(1) or (c)(2) of section 288a, and of the force required by section 288a, subdivision (c)(2). He also claims trial court error in imposing full consecutive terms for the section 288a, subdivision (c)(2) offenses, and in admitting evidence of prior conduct under Evidence Code sections 1101, subdivision (b), and 1108. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
Cardoza was a high school mathematics teacher, and the victim was a 16-year-old student in Cardoza’s class. On June 16, 2006, Cardoza drove the victim to Cardoza’s home which was several miles from the victim’s home.
Cardoza started showing pornographic videos to the victim. When the victim asked if he could go home, Cardoza told him that it was “a long walk.” After watching television and the pornography, Cardoza unzipped and pulled the victim’s pants down. Cardoza got a camera and began taking photographs of the unclothed victim in various poses, including when the victim was masturbating himself. Cardoza was touching the victim’s penis during the photographic session.
Cardoza asked the victim to orally copulate him and pulled the victim’s head down to Cardoza’s groin. The victim was frightened and orally copulated Cardoza as demanded. Cardoza took photographs of the act. Cardoza then orally copulated the victim for a short period of time but stopped when the victim complained that he was in pain. Cardoza then masturbated himself. After these incidents, Cardoza drove the victim home. The police were called after the victim discussed the incident with friends and his mother.
Cardoza was charged with two counts of forcible oral copulation, count 1 alleging oral copulation by the victim upon Cardoza, and count 2 alleging oral copulation by Cardoza upon the minor. (§ 288a, subd. (c)(2).) The same acts were charged as oral copulation of a minor without force in counts 3 and 4. (§ 288a, subd. (b)(1).) The other offenses were charged in counts 5 through 7.
A jury convicted Cardoza of all charges and the trial court sentenced him to 16 years in prison. The court selected the upper base term of eight years for each of the forcible oral copulation counts and imposed full, separate and consecutive terms pursuant to section 667.6, subdivision (d). In addition, the court imposed three-year upper terms for the section 288a, subdivision (b)(1) oral copulations with a minor stayed pursuant to section 654, and 50 days in county jail for each of the misdemeanors to run concurrently with the prison sentences.
DISCUSSION
Substantial Evidence Supports all Section 288a Convictions
Cardoza contends there is insufficient evidence to support two separate violations of either section 288a, subdivision (c)(2) or subdivision (b)(1). He concedes that substantial evidence supports the conviction for the victim’s oral copulation of him, but argues that there is no substantial evidence of his oral copulation of the victim.
In assessing a claim of insufficient evidence, an appellate court reviews the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--evidence that is reasonable, credible and of solid value--sufficient for a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) All conflicts in the evidence are resolved in favor of the judgment and all reasonable inferences are drawn in its favor. We will affirm unless there is no substantial evidence to support the conviction under any hypothesis. (People v. Snow (2003) 30 Cal.4th 43, 66.) Here, substantial evidence supports the convictions for oral copulation of the victim by Cardoza.
At trial, the victim initially testified that “I don’t think so, I don’t remember but I don’t think so” when the prosecutor asked him whether Cardoza gave him “oral sex” after he orally copulated Cardoza. The prosecutor then refreshed the victim’s memory by asking him whether he had told the police that Cardoza’s “teeth were hurting” during Cardoza’s oral copulation of him. The victim answered “yes” and testified that he did not remember at first, but now remembered making that statement to the police. He testified that his statement to the police was true and that Cardoza did, in fact, give him oral sex.
Cardoza argues that the victim’s testimony does not constitute substantial evidence because it was equivocal and uncertain. In essence, Cardoza is asking this court to substitute our evaluation of the victim’s testimony for that of the jury. Although the victim initially did not remember, he testified unequivocally that the offense occurred after his memory was refreshed. The victim’s initial failure to acknowledge the event is relevant to his credibility, but the jury, not this court, is charged with the responsibility of determining the credibility of all witnesses and the weight to be given to the testimony of any particular witness. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1463.)
Cardoza also argues that no other evidence corroborates the victim’s testimony that he was orally copulated by Cardoza. Again, Cardoza is asking this court to reweigh the evidence and disbelieve the victim. It is axiomatic that the uncorroborated testimony of one witness may provide substantial evidence, if believed by the jury, unless the testimony is physically impossible or inherently incredible. (People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1507-1508; People v. Scott (1978) 21 Cal.3d 284, 296; see CALCRIM No. 301; People v. Watts (1999) 76 Cal.App.4th 1250, 1258-1259.) Here, the factual content of the victim’s testimony was not physically impossible or inherently lacking in credibility. It was reasonable for the victim’s memory to fade during the two years between the incident and trial and reasonable for the jury to believe his testimony as a whole.
Substantial Evidence of Force
A violation of section 288a, subdivision (c)(2) requires oral copulation “accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim.” Cardoza contends that there is insufficient evidence that he used “force, violence, duress, menace, or fear” of bodily injury to accomplish the offenses.
As Cardoza acknowledges, the statute can be violated by means of duress as well as what is commonly considered “force” or “violence.” "Duress" in this context means "'... a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.'" (People v. Leal (2004) 33 Cal.4th 999, 1004, 1011, quoting People v. Pitmon (1985) 170 Cal.App.3d 38, 50.) The total circumstances, including the age of the victim, and his relationship to defendant, and the authority of the defendant over the victim are factors which should be considered in appraising the existence of duress. (Leal, at p. 1011; Pitmon, at p. 51.) Cardoza criticizes the inclusion of “hardship” in the definition of duress, but this court is obligated to follow our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Here, substantial evidence supports the conclusion that Cardoza used duress in the commission of both acts of oral copulation. When the victim indicated that he did not want to perform the acts, Cardoza made a veiled threat that the victim would have to walk to his home several miles away if he did not comply. Cardoza’s threat created a substantial and reasonable hardship if the victim refused Cardoza’s demands. The victim also testified that he was afraid, in part, because of Cardoza’s position of authority as his teacher. The record further supports the conclusion that Cardoza was aware that the victim’s compliance was not voluntary and had to be coerced. (See People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319-1320.)
There is also evidence that Cardoza pulled the victim's head towards Cardoza’s penis. The victim testified that, when he started to pull his head away, Cardoza put his “hand on the back of my head and moved it towards him and I just did it.” Such evidence shows the use of actual force in physically controlling the victim. (People v. Cochran (2002) 103 Cal.App.4th 8, 13-14.)
Full-Term Consecutive Sentences on 288a Offenses Required
Cardoza contends that he did not qualify for the mandatory full-term consecutive sentences for the section 288a, subdivision (c)(2) offenses. Section 667.6, subdivision (d) states, In relevant part, "A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) [which includes section 288a] if the crimes involve separate victims or involve the same victim on separate occasions. [¶] In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior."
Under this statutory standard, a finding that multiple sex offenses constitute “separate occasions” does not require the offenses to occur in different locations or be separated by a break in time of any particular duration. (People v. Jones (2001) 25 Cal.4th 98, 104-105; People v. Irvin (1996) 43 Cal.App.4th 1063, 1070.) A trial court could reasonably find that a defendant had a reasonable opportunity to reflect upon his or her actions even though the parties merely changed positions. (Irvin, at p. 1071; People v. Plaza (1995) 41 Cal.App.4th 377, 385.)
Here, the trial court reasonably found that the two acts of oral copulation were independent, separate and distinct acts that required full consecutive terms under section 667.6, subdivision (d). Evidence supports the conclusion that Cardoza had an opportunity to reflect on his actions between the time he compelled the victim to orally copulate him, and later orally copulated the victim. Also, the second offense was not the same as the first offense and necessarily required more than a change of position. It was a separate and discrete act in which Cardoza shifted from being the recipient of the physical act to the person committing the act.
No Prejudicial Abuse of Discretion in Admission of Testimony
Under Evidence Code Sections 1101 and 1108
Cardoza contends the trial court abused its discretion in admitting testimony concerning prior criminal and non-criminal sexual behavior between Cardoza and five former students as well as nude photographs taken by Cardoza of the victim and other young men. The evidence was admitted pursuant to Evidence Code section 1101, subdivision (b) (“1101(b)”) and Evidence Code section 1108. Cardoza argues that testimony pertaining to non-criminal behavior did not qualify for admission under Evidence Code section 1108, and that most of the evidence lacked sufficient similarity to the charged offenses for admission under section 1101(b). He also argues that the evidence should have been excluded under Evidence Code section 352.
Generally, evidence of prior uncharged acts is inadmissible to show a defendant’s bad character or predisposition to criminality. (Evid. Code, § 1101, subd. (a).) As an exception to the general rule, Evidence Code section 1108 permits admission of “another sexual offense or offenses” in a sexual offense case to show a defendant’s propensity to commit similar sex crimes. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013; People v. Falsetta (1999) 21 Cal.4th 903, 915.)
In addition, evidence of a prior uncharged “crime, civil wrong, or other act” is admissible under section 1101(b) to prove a material fact at issue such as intent, common plan, or identity. To be admissible, the evidence must involve conduct similar to the charged offense, with the degree of required similarity depending on the purpose for which the evidence is offered. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.)
Under both Evidence Code sections 1108 and 1101(b), otherwise admissible evidence is subject to exclusion pursuant to Evidence Code section 352 when its probative value is substantially outweighed by the probability of undue prejudice, confusion, or consumption of time. Evidence is substantially more prejudicial than probative if it poses an intolerable risk to the fairness of the proceedings. (People v. Guerra (2006) 37 Cal.4th 1067, 1114.)
A trial court's ruling on the admission of evidence under Evidence Code sections 1101(b), 1108 and 352 is reviewed on appeal under the abuse of discretion standard and will not be disturbed unless the court acted in an arbitrary, capricious or patently absurd manner. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; People v. Branch (2001) 91 Cal.App.4th 274, 281-282.) Here, there was no abuse of discretion by the trial court in admitting prior offense evidence under Evidence Code section 1108, and any error in admitting evidence under section 1101(b) was harmless.
The trial court admitted testimony from or regarding five former high school students of Cardoza. Testimony from two students, Kerry C. and Kenneth S. pertained to prior sexual crimes and was admitted under Evidence Code section 1108. Kerry C. testified that Cardoza committed oral copulation with him. Kenneth S. testified that he went to Cardoza’s home, watched pornography, posed nude for photographs, and watched Cardoza masturbate. He testified that Cardoza touched his genitals. Both boys were 16 or 17 years old at the time of the offenses.
Testimony from two other former students and the sister of a third was admitted under section 1101(b). The testimony pertained to conduct after the individuals had reached the age of 18 and did not involve a sex crime which would have permitted admission under Evidence Code section 1108. Devron A. testified that he went to Cardoza’s home, posed nude for photographs, and watched Cardoza masturbate, but declined Cardoza’s other sexual overtures. David R. testified that he visited Cardoza but that there was no sexual conduct or photographs. The sister of Chris H., who was serving in the military during trial, testified that she had seen nude photographs of her brother with Cardoza.
Cardoza correctly concedes the admissibility of testimony by Kerry C. under Evidence Code section 1108 because it concerned a criminal act identical to the current charges of oral copulation. Also, we conclude the trial court did not abuse its discretion in admitting the testimony of Kenneth S. under Evidence Code section 1108. The evidence indicates that the conduct constituted sexual battery (§ 243, subd. (e)), using a minor for sex acts (§ 311.4, subd. (c)), and misdemeanor child molestation (§ 647.6, subd. (a)). (See Evid. Code, § 1108, subd. (d).)
Moreover, the trial court did not abuse its discretion in admitting the testimony of Devron A. and the sister of Chris H., as well as that of Kenneth S., under section 1101(b) to show intent and a common plan in the case of Kenneth S. and Devron A., and to show intent in the case of Chris H. Prior act evidence is admissible under section 1101(b) to show a common plan when the prior act and charged offenses have "such a concurrence of common features" that they "are naturally to be explained as caused by a general plan," and not merely a series of similar spontaneous events. (People v. Ewoldt, supra, 7 Cal.4th at pp. 402-403.) Such evidence is admissible to show intent when the prior act and charged offense are sufficiently similar to support the inference that the defendant probably harbored the same intent in each instance. (Id. at p. 402.)
The testimony of Kenneth S. and Devron A. was admissible to show a common plan by Cardoza to lure his male teenaged students into his home for purposes of sexual gratification in a manner that included showing them pornographic movies, inducing them to pose for nude photographs, making other sexual overtures, and masturbating in their presence. The evidence regarding nude photographs of Chris H. was not admissible to show a common plan, but the similarities between the prior act and the charged offense is sufficient to support an inference that the defendant probably had the same intent in each instance. The evidence supported the conclusion that Cardoza brought Chris H. to his home for sexual gratification by taking nude photographs.
The testimony of David R. does not satisfy the requirements for admission under section 1101(b). Cardoza’s conduct with David R. was limited to inviting David to his home and using the Jacuzzi. David testified that Cardoza took no photographs of him and made no sexual overtures at all.
Any error in admission of the testimony, however, was harmless. The testimony was of minimal significance in comparison to the testimony of Kerry C., Kenneth S., and Devron A., and it is not reasonably probable the jury would have reached a result more favorable to Cardoza had the jurors not heard the evidence. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Alcala (1992) 4 Cal.4th 742, 790-791.)
Cardoza contends that, even if otherwise admissible under Evidence Code sections 1101(b) or 1108, testimony regarding former students other than Kerry C. should have been excluded because the probability of undue prejudice substantially outweighed its probative value, and because the evidence was cumulative. (Evid. Code, § 352.) Cardoza claims the primary effect of testimony from Kenneth S., Devron A., and David R., and the sister of Chris H., was to create an “aura of impropriety” and “shock the jury.”
Critical factors in assessing the probative value of the evidence include whether the source of the evidence is independent of evidence of the charged offense, and whether the evidence is merely cumulative regarding an undisputed issue. (People v. Walker (2006) 139 Cal.App.4th 782, 806.) Critical factors in assessing the prejudicial effect are whether the uncharged act resulted in a conviction, and whether evidence of uncharged acts is more inflammatory than the evidence of the charged offenses. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1211.)
Also, in making an Evidence Code section 352 analysis of evidence admitted under Evidence Code section 1108, our Supreme Court requires trial courts to consider such factors as the nature, relevance, and possible remoteness of the evidence, its likelihood of confusing or distracting jurors, the burden of defending against the uncharged act, and the availability of less prejudicial alternatives such as limiting the amount of evidence admitted. (People v. Falsetta, supra, 21 Cal.4th at pp. 916-917; People v. Harris (1998) 60 Cal.App.4th 727, 738-739.)
We review the trial court’s ruling under the abuse of discretion standard, and will uphold any ruling that is not arbitrary, capricious, or patently absurd so as to result in a miscarriage of justice. (People v. Lamb (2006) 136 Cal.App.4th 575, 582; People v. Fulcher (2006) 136 Cal.App.4th 41, 58.) Here, the trial court’s admission of the challenged evidence under Evidence Code section 352 was not an abuse of discretion.
After conducting the weighing process required by Evidence Code section 352, the trial court reasonably concluded that the Evidence Code section 1108 evidence was highly probative to show Cardoza’s propensity to commit acts similar to the charged offenses and the section 1101(b) evidence was highly probative to establish intent and a common plan for commission of the charged offenses. The evidence all involved a series of escalating acts of sexual impropriety with teenage boys in a teacher-student relationship with Cardoza.
Furthermore, we disagree with Cardoza’s claim that the testimony was unnecessary and only served to shock the jury. Cardoza placed all elements of all charged offenses at issue by pleading not guilty and, in his own testimony, denied any wrongdoing. Testimony informing the jury of similar sex offenses and similar non-criminal sexual conduct was important to prove the offenses. “[S]ex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence.” (People v. Falsetta, supra, 21 Cal.4th at p. 915.) The purpose of Evidence Code section 1108 is to make the jury aware of the defendant's other sex offenses in evaluating the victim's and defendant's credibility. (Falsetta, at p. 911.) Similarly, evidence of uncharged acts that did not rise to the level of a criminal offense is equally probative to substantiate the victim’s testimony. And, the evidence of the prior incidents was less inflammatory than, and independent of, evidence of the charged offenses.
Cardoza also argues that the evidence tended to prove no more than his sexual interest in young men, and that evidence of some propensity to seek homosexual sexual gratification is not enough to justify admission. We agree that, in a sex offense case, evidence is not admissible merely because it concerns other sexual misconduct. But, here, the evidence demonstrated a specific plan leading to the commission of the uncharged acts that was similar to the events occurring immediately before and during the commission of the charged offenses.
Cardoza makes a similar Evidence Code section 352 argument regarding the trial court’s admission of nearly 100 photographs of nude young males, including approximately 20 photographs of the victim, 45 of Devron A., and 10 of Chris H. Cardoza concedes the photographs were probative to substantiate the victim’s testimony in general and to the charges regarding the photographing of a minor (§§ 311.3, subd. (a), 311.4, subd. (c)), but argues that the photographs were admitted in such large numbers as to be unnecessarily shocking and cumulative.
Cardoza cites judicial authority limiting the admission of gruesome and horrifying photographs of a crime. (See People v. Lewis (2009) 46 Cal.4th 1255, 1282; People v. Howard (2008) 42 Cal.4th 1000, 1023-1024.) The photographs in the instant case, however, were not gruesome or horrifying or particularly inflammatory, and there was no abuse of discretion in their admission. Also, the photographs were relevant and probative of Cardoza’s sexual attraction to young boys and intention to act on that attraction by gratifying his sexual desires through illegal acts. (See People v. Page (2008) 44 Cal.4th 1, 40.) Admission of the photographs, even considered as a whole, was not so prejudicial as to outweigh their probative value.
The judgment is affirmed.
We concur: YEGAN, Acting P.J., COFFEE, J., Edward H. Bullard, Judge