Opinion
NOT TO BE PUBLISHED
Contra Costa County, Super. Ct. Nos. 4-140444-1 & 5-070263-9
Sepulveda, J.
This matter comes to us following a no contest plea to a criminal charge of committing a lewd act on a child, and a later jury conviction for committing a forcible lewd act on another child. (Pen. Code, § 288, subds. (a), (b)(1).)
In February 2004, defendant Earl Cobb was accused of sodomizing a seven-year-old boy. (Case No. 4-140444-1.) Cobb was then 20 years old, and he had no criminal record. He pleaded no contest to the charge of committing a lewd act on a child and, pursuant to a negotiated disposition, was given a suspended prison sentence and probation conditioned upon serving a year in county jail and receiving psychological treatment. (Pen. Code, § 288, subd. (a).) In October 2005, less than two months after his release, defendant was accused of raping an eight-year-old girl. (Case No. 5-070263-9.) A jury convicted defendant of committing a forcible lewd act on a child. (Pen. Code, § 288, subd. (b)(1).) The court sentenced defendant to 50 years to life for the second offense: 25 years to life as a repeat sex offender, doubled for having a second serious felony conviction. (Pen. Code, §§ 667, subd. (e)(1), 667.61, subd. (a); People v. Acosta (2002) 29 Cal.4th 105, 118-128.) The court revoked probation on the first offense and imposed the previously suspended six-year sentence, to be served consecutive to the life sentence.
Defendant appeals and challenges his conviction for the second offense. Defendant claims he was denied due process because the trial court (1) admitted evidence of his prior sex offense to prove his propensity for sex offenses (Evid. Code, § 1108); and (2) allowed the child to have two individuals present in the courtroom to provide emotional support when she testified (Pen. Code, § 868.5). The procedures defendant challenges are statutorily authorized, and the constitutionality of those statutes is well-established. We therefore reject defendant’s claims, and affirm the judgment.
I. FACTS
Defendant’s claims on appeal present narrowly confined legal issues that make a detailed recitation of the trial testimony unnecessary. We provide only a brief summary.
On October 28, 2005, eight-year-old Jane Doe and her sister were at the Antioch home of their neighbor and babysitter, Hattie George. Jane and her sister were outside playing with George’s two daughters. The girls were called to come inside, and Jane did not respond for 15 or 20 minutes. George then saw Jane run from the back yard next to the house where defendant Earl Cobb lived with his mother. George sent the girls to take a bath, and they called her into the bathroom and told her that Jane had blood in her underwear. George saw “a large amount of blood” on the inside of Jane’s underwear. George asked Jane what happened, and Jane became “scared,” “upset” and “just started crying.” Jane said “Earl humped” her. George telephoned the police.
During a sexual assault examination, the examining nurse asked Jane what happened and Jane told the nurse: “ ‘He said yes and I said no.’ ” And “ ‘[h]e said he wanted to give me a baby.’ ” And “ ‘[h]e put his thingy inside me.’ ” Three days after the incident, Jane told a police officer that “Earl put his ding-dong in her booty and crotch.” At trial, Jane testified that defendant touched her on the crotch and inside her butt. Jane’s bloody underwear was tested and found to contain semen in the crotch matching defendant’s genetic profile.
At trial, the prosecution also presented the testimony of 11-year-old John Doe. John testified haltingly, and explained that his encounter with defendant was “hard to talk about.” John testified that, when he was seven years old, he was at defendant’s house watching television with him when defendant grabbed John and threw John onto the floor. Defendant held John down from behind and “something happened” to the part of John’s body that is normally covered by the back of underwear. John said he had not wanted “it” to happen.
II. DISCUSSION
Defendant claims he was denied due process because the trial court (1) admitted evidence of his prior sex offense against John to prove defendant’s propensity for sex offenses (Evid. Code, § 1108); and (2) allowed Jane to have two individuals present in the courtroom to provide emotional support when she testified (Pen. Code, § 868.5). The claims are meritless.
As a general rule, evidence may not be admitted to prove a defendant’s criminal propensity. (Evid. Code, § 1101, subd. (a).) Evidence of a propensity to commit sex offenses is a recognized exception to this rule. (Evid. Code, § 1108.) In a criminal action in which a defendant is accused of a sex offense, evidence of the defendant’s commission of another sex offense is admissible to prove criminal disposition. (Ibid.; People v. Falsetta (1999) 21 Cal.4th 903, 910-922 (Falsetta).) The trial court thus properly admitted John’s testimony of defendant’s prior sex offense under the authority of Evidence Code section 1108.
Defendant, through appellate counsel, argues that Evidence Code section 1108 is an unconstitutional deprivation of due process. The argument is untenable. A decade ago, the California Supreme Court rejected the very same argument and upheld the constitutionality of the statute. (Falsetta, supra, 21 Cal.4th at pp. 910-922.) Our high court has also rejected defendant’s related argument that it is unconstitutional to instruct the jury that the prior offense used to infer criminal disposition need be proven by only a preponderance of the evidence. (CALCRIM No. 1191.) (People v. Reliford (2003) 29 Cal.4th 1007, 1013.) These holdings by the California Supreme Court are binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Defendant concedes as much, but explains that he raises the issues to preserve them for federal habeas corpus review. The explanation fails to justify the many pages consumed in making the arguments to this court. And, moreover, the federal courts themselves have rejected claims that admission of propensity evidence in sex offense cases is unconstitutional. (E.g., United States v. LeMay (9th Cir. 2001) 260 F.3d 1018, 1022.) In short, defendant’s argument is meritless. Evidence of a prior sex offense is fully admissible under Evidence Code section 1108; the statute is constitutional; and the trial court properly exercised its discretion in admitting the evidence in this case.
Defendant’s challenge to the presence of support persons during Jane’s testimony is likewise meritless. Penal Code section 868.5 authorizes a prosecuting witness at a trial for certain offenses (including child molestation) to have up to two support persons of her choosing in the courtroom when the witness testifies, one of whom may accompany the witness to the witness stand. No particularized showing of the witness’s desire or need for support persons is statutorily required. (Pen. Code, § 868.5, subd. (a).) The statute requires a showing only for support persons who also testify at the trial, and the showing is minimal. (Pen. Code, § 868.5, subd. (b); People v. Lord (1994) 30 Cal.App.4th 1718, 1722 (Lord).) “California is one of a number of states which has implemented statutes or procedures that allow a person to be present to render support to particular witnesses during their testimony. These procedures normally are focused on the young witness or the witness who is the victim of a sexual offense. The common reasons advanced for the procedure are to allow the witness to more easily come forward and to reduce the psychological harm and trauma the witness might experience. (Annot., Person Accompanying Witness (1990) 82 A.L.R.4th 1038.) The state’s interest in safeguarding the physical and psychological well-being of a minor or victim of sexual abuse can be a compelling one.” (People v. Patten (1992) 9 Cal.App.4th 1718, 1726 (Patten).)
In this case, before opening statements to the jury, the prosecutor asked the trial court to allow “up to two support persons” in the courtroom when 10-year-old Jane testified, “one in the audience, one with her.” Defense counsel submitted the matter without objection, and the court apparently granted the request. The record does not reveal any additional information about the support persons, or even if support persons were actually used. There is no indication that any support person testified at trial.
Defendant argues that the statute allowing a prosecuting witness to have a support person accompany her to the witness stand is unconstitutional because it infringes his rights to due process and to confront witnesses against him (by adding extraneous influences on the witness’s demeanor) and infringes his right to a presumption of innocence (by suggesting that others support and believe the witness’s testimony). The argument is not new, and every court to consider the matter (including this District Court of Appeal) has found Penal Code section 868.5 to be constitutional. (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1076-1079; People v. Johns (1997) 56 Cal.App.4th 550, 553-556 (Johns); Lord, supra, 30 Cal.App.4th at pp. 1721-1722; People v. Adams (1993) 19 Cal.App.4th 412, 437-444 (Adams); Patten, supra, 9 Cal.App.4th at pp. 1724-1733.)
The only disagreement among the courts has been over the application of the statute; specifically, whether a defendant’s confrontation right is sufficiently impacted by use of a support person that the statute should be read to infer that the prosecutor must make an individualized showing of need in all cases. In Adams, the Sixth District held that, in every case, the prosecutor must make a showing that a support person is necessary to protect the welfare of the witness. (Adams, supra, 19 Cal.App.4th at p. 444.) Other District Courts disagree with that conclusion. (Johns, supra, 56 Cal.App.4th at pp. 553-556 [Fourth District]; Patten, supra, 9 Cal.App.4th at pp. 1727-1733 [Fifth District]; see Lord, supra, 30 Cal.App.4th at p. 1722 [First District questioned Adams without resolving issue].) In Patten, the Fifth District rejected the requirement of an individualized showing of necessity in every case, while acknowledging that an exploration of the necessity of the procedure is advisable if the circumstances of a particular case raise the danger that a support person’s presence will unfairly influence the jury’s determination of the witness’s credibility. (Patten, supra, at pp. 1727-1733.)
To the extent that defendant claims Penal Code section 868.5 is unconstitutional on its face, the claim is rejected as contrary to all authority. (People v. Ybarra, supra, 166 Cal.App.4th at pp. 1076-1079; Johns, supra, 56 Cal.App.4th at pp. 553-556; Lord, supra, 30 Cal.App.4th at pp. 1721-1722; Adams, supra, 19 Cal.App.4th at pp. 437-444; Patten, supra, 9 Cal.App.4th at pp. 1724-1733.) To the extent that defendant claims he was entitled to a hearing on Jane’s need for a support person, and improperly denied a hearing, the claim is forfeited by his failure to request a hearing and determination of necessity, or to otherwise object in the trial court. (Lord, supra, 30 Cal.App.4th at p. 1722.) “The absence of an objection deprived the trial court of the opportunity to correct any procedural error and make an evidence-based finding that [Jane] needed a support person. For that reason, [defendant] waived the error he now asserts.” (Ibid.)
Finally, even if we accept defendant’s argument that the presence of support persons during Jane’s testimony without an individualized showing of necessity violated his confrontation right, we would find the error harmless beyond a reasonable doubt. (Adams, supra, 19 Cal.App.4th at p. 444.) The evidence remains sufficient to convict defendant even if we disregard Jane’s trial testimony. Defendant was not prejudiced by any infringement of his confrontation right by the presence of support persons.
III. DISPOSITION
The judgment is affirmed.
We concur: Ruvolo, P. J., Rivera, J.