Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F04908279-3, John F. Vogt, Judge.
Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
Appellant Samuel Lofty Confectioner was convicted of molesting a student from the high school where he worked as a substitute teacher. On appeal, appellant contends (1) the trial court erred by admitting evidence of a prior uncharged act under Evidence Code section 1101, subdivision (b) to establish a common plan or scheme, (2) defense counsel rendered ineffective assistance in closing argument by misstating the law and lowering the burden of proof, and (3) the trial court’s instructions on reasonable doubt violated his constitutional rights. We reject appellant’s contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On July 19, 2006, the Fresno County District Attorney filed an information, charging appellant with one count of engaging in a lewd act on a child who was 14 or 15 years old and at least 10 years younger than appellant (Pen. Code § 288, subd. (c)(1)) and one count of oral copulation of a person under 18 (Pen. Code § 288a, subd. (b)(1)). The offenses were alleged to have occurred on February 12, 2004, and involved a single victim identified as “John Doe” in the information and as “J[.]” at trial. Appellant’s jury trial began on July 3, 2007. On July 10, 2007, the jury convicted appellant on both counts. On August 3, 2007, the trial court imposed a prison term totaling two years.
J., who was 18 years old at the time of trial, testified that when he was 14 years old, he went to a high school basketball game with his cousin. As he was leaving the game, he ran into appellant. Appellant worked as a substitute teacher at J.’s high school. J. agreed to drive over to a store with appellant to buy some sodas.
Before they drove to the store, appellant and J. sat in appellant’s car and talked about sports. Appellant mentioned he was a trainer and helped the football coach train varsity players. J., a freshman football player, complained he had a charley horse. Appellant responded by massaging J.’s left thigh for a couple minutes.
After they went to the store, appellant and J. went to appellant’s motel so appellant could pick up some clothes. While appellant was in the bathroom, J. rested on the bed and watched television. When appellant came out of the bathroom, he started massaging J.’s right thigh. Appellant asked J. to take off his pants. J. pulled down his pants and appellant continued to massage his thigh for a couple minutes. Appellant then grabbed J.’s penis through an opening in his boxer shorts and orally copulated him. After J. ejaculated, appellant went to the bathroom and wiped his face on a towel.
Appellant drove J. back to school, where he met his cousin. That night, J. talked to the police about what happened. Officers responded to collect evidence from J., appellant, and appellant’s motel room.
Tests of a penile swab taken from J. indicated a mixture of DNA from only two contributors. Comparison with appellant’s reference sample showed appellant was a possible minor contributor to the DNA mixture. A similar DNA mixture was found in a non-semen stain on J.’s boxer shorts; J. was a possible major contributor, and appellant was a possible minor contributor. Tests further revealed a semen stain in the crotch-area of J.’s boxer shorts. DNA detected in the stain was indistinguishable from J.’s reference sample. DNA detected in a semen stain on a washcloth collected from appellant’s motel room was indistinguishable from appellant’s reference sample.
E. G., who was 20 years old at the time of trial, testified that he knew appellant from when he was a sophomore at J.’s high school. Appellant was his substitute teacher. E. G. played a number of sports at the time, including football, baseball, and track.
E. G. testified that once when he went to appellant’s residence, appellant “massaged my leg where my muscles were probably hurting when I was playing in sports.” Specifically, appellant massaged E. G.’s “thigh muscle” after he told appellant that it hurt. When asked if appellant did anything else, E. G. responded, “he didn’t really like do nothing, he just massage it to make it like probably feel better so it won’t hurt no more.”
E. G. then acknowledged that appellant moved his hand further up his thigh. When appellant did this, E. G. “pushed [appellant’s] hand away” and “told him to back off just a little bit.” When asked if there was a reason he pushed appellant’s hand away, E. G. stated, “No reason that I know of.” On cross-examination, E. G. testified that appellant never tried “to molest [him] in a sexual fashion.”
The defense presented evidence reflecting some inconsistencies between J.’s trial account and his earlier police statements. Fresno Police Officer John Overstreet testified that J. told him that appellant massaged his legs and touched his penis over his clothing. J. also said that appellant pulled his pants down and orally copulated him, after which J. ejaculated into a towel.
DISCUSSION
I. Admission of Prior Act Evidence
Appellant contends the trial court erred in admitting E. G.’s testimony under Evidence Code section 1101, subdivision (b) as evidence of a common plan or scheme. Appellant suggests the evidence was not sufficiently similar to the charged offense to establish a common plan because E. G. did not interpret appellant’s act to be sexual in nature.
Evidence Code Section 1101, subdivision (a) generally prohibits “evidence of a person’s character or a trait of his or her character” when it is “offered to prove his or her conduct on a specified occasion.” Section 1101, subdivision (b), however, carves an exception to this rule by admitting evidence “that a person committed a crime, civil wrong, or other act when [it is] relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”
“[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.’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) 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 Evidence Code section 1101, subdivision (b) for abuse of discretion. (People v. Carpenter (1997) 15 Cal.4th 312, 380.)
Applying the above principles here, no abuse of discretion appears. There was a remarkable degree of similarity between the prior act and the charged offense. J. and E. G. were similarly situated in that they were both student athletes at the same high school in the lower grade levels (i.e., freshman and sophomore) when the acts occurred. They both knew appellant as a substitute teacher and trusted him, at least insofar as they appeared to be comfortable being alone with him. On both occasions, appellant massaged the students’ thighs, ostensibly to help relieve pain caused by playing sports. Notwithstanding E. G.’s interpretation, the prior act could reasonably be viewed as having a sexual component. When appellant tried to move his hand further up E. G.’s thigh, he apparently felt uncomfortable enough to push appellant’s hand away and tell him to back off. On this record, the trial court did not abuse its discretion in finding that the similarities between the prior act and the charged offense implied the existence of a plan rather than a series of spontaneous acts. In light of our conclusion that the trial court properly admitted E. G.’s testimony under Evidence Code, section 1101, subdivision (b), we also reject appellant’s related claim that the trial court erred in instructing the jury that his testimony could be considered “for the limited purpose of deciding whether or not the Defendant had a plan or scheme to commit the offenses alleged in this case.”
II. Ineffective Assistance of Counsel in Closing Argument
Appellant next contends defense counsel rendered ineffective assistance of counsel in closing argument. Appellant’s contention is based on the following statements:
“My client -- and I told you again, my client can sit there and say nothing. It is a denial until the People make that threshold, this burden of proof beyond a reasonable doubt that it was more likely than not to have occurred, Sam can sit there and say nothing.”
“The Court will tell you that the People must prove something, they mean they must prove it beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you with an abiding -- an abiding, not just an itty-bitty one, but an abiding conviction that the charge is true.”
Appellant claims that defense counsel’s statements misstated the law and lowered the burden of proof (1) by telling the jury that appellant’s right to remain silent ceased once the People met some “threshold”; (2) by telling the jury the People only needed to prove the crime “was more likely than not to have occurred”; and (3) by defining “proof beyond a reasonable doubt” as proof that merely leaves the jury with more than “an itty-bitty” conviction that the charge is true.
In order to prevail on a claim for ineffective assistance of counsel, appellant must make two showings. First, he must show that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-88 (Strickland); People v. Gray (2005) 37 Cal.4th 168, 206-207.) Second, appellant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been more favorable to the defendant. (Strickland, supra, 466 U.S. at p. 687; People v. Kelly (1992) 1 Cal.4th 495, 519-520.)
When viewed in context with the remainder of defense counsel’s summation, the complained-of statements fail to establish that appellant received ineffective assistance of counsel in closing argument. Defense counsel repeatedly emphasized that the prosecution had the burden of proof. Defense counsel also positively defined the reasonable doubt standard in language that was accurate and consistent with the trial court’s instructions. Thus, later in closing argument, defense counsel argued:
“[W]hen the Court tells you my client in a criminal case such as this is presumed to be innocent, he means it. Because the Court’s going to tell you the presumption requires the People to prove my client’s guilt beyond a reasonable doubt .… [¶] Proof beyond a reasonable doubt. We said this at the beginning. Proof beyond a reasonable doubt is proof that leaves you as a juror with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because all things are possible, but in deciding whether the People have proved their case beyond a reasonable doubt you must[,] impartially, that one word, impartially[,] compare and consider all the evidence that we received throughout the entire trial.”
In contrast, the brief excerpts cited by appellant do not appear to reflect a positive attempt by defense counsel to define the burden of proof, nor do they contain any clear misstatements of the law. Rather, appellant’s argument is based on inferences drawn from counsel’s statements, which at worst, are somewhat confusing and overly colloquial. However, in view of the record of closing argument as a whole, including defense counsel’s later clarification of the reasonable doubt standard, we cannot find that that defense counsel’s performance fell below an objective standard of reasonableness. Moreover, the trial court correctly instructed the jury concerning the reasonable doubt standard and the prosecutor’s burden of proof. We assume the jury followed the instructions given, and therefore conclude it was not reasonably probable the jury was misled by defense counsel’s statements, even if those statements were erroneous. Accordingly, appellant had failed to establish ineffective assistance of counsel under both prongs of the Strickland test.
III. Instructions on Reasonable Doubt
Finally, appellant contends that the instructions used in this case on reasonable doubt, Judicial Council of California Criminal Jury Instructions (2007), CALCRIM
No. 220 and CALCRIM No. 222, violated his constitutional rights because these instructions shifted the burden of proof and further precluded any reasonable doubts based upon a “lack of evidence.” This issue has been raised and rejected numerous times, including by this Court in two separate published opinions, as appellant recognizes. (See, e.g., People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1156-1157; People v. Flores (2007) 153 Cal.App.4th 1088, 1092.) We are not persuaded that we need to revisit the holdings in those cases here.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, Acting P.J., DAWSON, J.