Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Los Angeles Superior Court, No. VA106717, John A. Torribio, Judge.
Edward H. Schulman, under appointment by the Court of Appeal.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Ross J. Curtis appeals from his conviction of sexual offenses against two minor females. He argues the trial court erred in admitting the testimony under Evidence Code sections 1101, subdivision (b) and 1108 of two other women concerning uncharged sexual offenses. Alternatively, he contends his defense counsel was ineffective in failing to move the court to strike the testimony of one of the women and to seek an admonishment that her testimony be disregarded by the jury. Defendant also claims his counsel was ineffective in failing to request a limiting instruction as to testimony by a nurse who examined one of the victims.
We find no basis for reversal and affirm.
FACTUAL AND PROCEDURAL SUMMARY
Defendant was a Marine who was court-martialed and discharged in 2006 after complaints that he engaged in inappropriate sexual behavior with subordinates Kimberly W. and Noelle M. He continued to volunteer as an instructor at a Junior Reserve Officers’ Training (ROTC) program after his discharge.
In March 2006, Maritza G., then 13 years old and in the eighth grade, attended a three-day boot camp with the ROTC program. Defendant was an instructor at the camp. He and Maritza flirted with each other, and he gave her his email address. After the camp, defendant and Maritza communicated through MySpace and email. Defendant sent several explicit messages to Maritza concerning sex acts he wanted to perform with her and asking for nude pictures of her.
Defendant told Maritza he would be at her middle school for a career day in May 2006. After school, defendant gave Maritza and four others a ride home. The others were dropped off first. He drove Maritza to a quiet street, parked his truck and they both got into the back seat. He kissed her bare breast and engaged in two acts of vaginal intercourse with her. Maritza was contacted by defendant’s then wife, Sarah, who had discovered messages between Maritza and defendant on his MySpace page. After Maritza denied any relationship with defendant at a meeting with Sarah, Sarah contacted her again and told her that an investigator from San Bernardino County wanted to speak with her. Maritza spoke with the investigator.
In March 2007, Jackie S., a 15-year-old tenth grader, attended a three-day ROTC boot camp at Joshua Tree where defendant served as an instructor. During a hike, Jackie took a break and was approached by defendant. He complimented her and kissed her on the mouth. Defendant waved off other students who offered to walk Jackie down the hill and accompanied her himself. During the walk, he touched her buttocks once or twice. Tents for the female and male campers were separated, but defendant’s tent was in the area where the female campers had their tents. After Jackie and her tent mates went to bed, she heard a male voice calling her name. She went outside and saw defendant. He took her to his tent, where he removed his pants and her pants and underwear. He had oral and digital contact with her vagina and had vaginal intercourse with her.
After the camp ended, defendant left voicemail messages for Jackie saying he wanted to propose to her when she turned 17 and to marry her when she was 18. Jackie’s mother Maria noticed a change in her daughter after the camp and checked her cell phone. Maria heard a message from an adult male. A month after the camp incident, Jackie told her about the incident with defendant. Several weeks later Jackie was examined by Toyetta Beukes, a nurse practitioner specializing in examining victims of sexual assault. Jackie described the specific acts performed by defendant. Beukes observed an old injury to Jackie’s hymen consistent with the girl’s description of the acts by defendant.
Defendant was arrested and charged with three counts regarding Maritza: lewd acts with a child (Pen. Code, § 288, subd. (a), counts 1 and 2); and sending harmful matter (Pen. Code, § 288.2, subd. (b), count 3). He was charged with sexual penetration by foreign object (Pen. Code, § 289, subd. (i), count 4), and two counts of oral copulation of a person under 16 (Pen. Code, § 288a, subd. (b)(2), counts 5 and 6) as to Jackie. It was alleged as to counts 1 and 2 that the victim was a person under the age of 14 and that defendant had engaged in substantial sexual conduct with her (Pen. Code, § 1203.066, subd. (a)(8)).
The jury found defendant guilty on all counts and found the substantial sexual conduct allegations true. He was sentenced to an aggregate prison term of 12 years 8 months. This timely appeal followed.
DISCUSSION
I
Before trial began, the prosecutor moved pursuant to Evidence Code sections 1101, subdivision (b) and 1108 for admission of testimony by four women about uncharged sexual offenses committed by defendant. One of the witnesses was defendant’s ex-wife, Sarah H., and three were his subordinates at Camp Pendleton Marine Base: Kimberly W., Noelle M., and Rose. C. The trial court allowed the testimony of Noelle M. It allowed the testimony of Kimberly W., but excluded evidence of an incident in which defendant handcuffed her to a bed and raped her as too prejudicial under Evidence Code section 352. The testimony of Rose C. was excluded as cumulative pursuant to section 352. The court deferred a ruling on the admissibility of uncharged sexual offenses committed by defendant against Sarah H., but she did not testify to these events at trial. Defendant challenges only the admission of testimony by Kimberly W. and Noelle M.
The trial court and the briefs refer to five witnesses, but our review of the prosecutor’s motion identified only four.
All further statutory references are to the Evidence Code unless otherwise noted.
A. Legal Principles
Section 1108, subdivision (a) allows evidence of a defendant’s commission of another sexual offense or offenses to demonstrate propensity in a criminal action in which the defendant is accused of a sexual offense, unless found unduly prejudicial or objectionable under section 352. For purposes of this rule, “sexual offense” is defined as “a crime under the law of a state or of the United States that involved any of” specified sex crimes, or “[c]ontact, without consent, between the genitals... of the defendant and any part of another person’s body.” (§ 1108, subd. (d)(1)(D).)
“As our Supreme Court explained in People v. Falsetta (1999) 21 Cal.4th 903, Evidence Code section 1108 requires the court to examine the evidence of other incidents of sexual misconduct, and ‘consider such factors as 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. [Citations.]’ (People v. Falsetta, supra, 21 Cal.4th at pp. 916-917)” (People v. Ennis (2010) 190 Cal.App.4th 721, 733.)
“Ultimately, the determination of whether the probative value of such evidence is substantially outweighed by the possibility of undue consumption of time, unfair prejudice or misleading the jury is ‘entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.]’ (People v. Fitch (1997) 55 Cal.App.4th 172, 183.) We review the court’s decision on an abuse of discretion standard. (People v. Kipp (1998) 18 Cal.4th 349, 371.)” (People v. Ennis, supra, 190 Cal.App.4th at p. 733.)
The prosecutor also based her motion to admit Kimberly and Noelle’s testimony on section 1101, subdivision (b). Her theory was that the uncharged offenses were probative of defendant’s knowledge, lewd intent, and common scheme or plan. She also argued that the incidents of prior sexual misconduct demonstrated the absence of any mistake as to the offenses against Maritza and Jackie.
“‘Evidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition; but evidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes. (Evid. Code, § 1101.) Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent. [Citation.]’ (People v. Kipp [supra, ] 18 Cal.4th 349, 369.)” (People v. Foster (2010) 50 Cal.4th 1301, 1328.)
B. Kimberly W.
Kimberly W. testified that she enlisted in the Marines in March 2004 at the age of 18. Her first duty station was Camp Pendleton Marine Base where she was assigned to the shipping department. Defendant, a corporal, was her superior noncommissioned officer. During an inspection, defendant entered Kimberly’s room dressed in a silky red robe, white tank top, red gym shorts, white socks and red shoes. When he flirted with Kimberly’s roommate, the roommate left. Defendant turned his attentions to Kimberly, tickling her and asking her if she was trying to seduce him. He grabbed her hand and placed it on his penis. She told him she was not trying to seduce him. He asked Kimberly to perform oral sex on him. She complied saying, “‘I better listen to my NCO [noncommissioned officer].’”
Four days later, Kimberly was on duty in the shipping department. Defendant asked her to give him a ride to get a haircut, but then ordered her to take him to his room in the barracks on base instead. He told her to come up to his room to keep him company while he cut his own hair. When he finished, defendant stretched out on top of Kimberly and started grinding against her private areas. She protested, saying that this was wrong. Defendant asked her to give him oral sex and she refused. He pushed Kimberly up against the door. She capitulated, performing oral sex as he demanded. On five or six other occasions, defendant pressured her to give him oral sex. She would sometimes do so just to get it over with.
Around June 2005, Kimberly began dating another man on the base and told defendant to leave her alone. He continued to harass her, making lewd comments comparing himself to her boyfriend. He told Kimberly that he still loved her and wanted to engage in sexual acts with her. She and Noelle M. eventually went together to report defendant’s conduct to military officials. On cross-examination, Kimberly testified that at first she consented to defendant’s demands for sex because she liked him, then he started to pull rank on her and forced her to perform. During defendant’s court martial, he apologized for his conduct.
Defendant first argues that none of his behavior with Kimberly qualifies as a sexual offense as defined in section 1108, subdivision (d)(1)(A) through (F). He contends that fraternizing with a subordinate officer, while constituting military misconduct, is not an enumerated offense under section 1108. He also argues that Kimberly testified that all acts of oral copulation were consensual.
We disagree with defendant’s characterization of the evidence as establishing that all encounters with Kimberly were consensual. On cross-examination, Kimberly testified that at first, she performed oral copulation on defendant because she liked him. Defense counsel asked: “So you are not here to say that he pulled rank on you and forced you to do that; are you?” Kimberly answered: “Yes, he did.” Defense counsel asked: “You are?” and Kimberly explained: “At first he didn’t. Then he started to.” In addition, the People cite Kimberly’s testimony about the encounter in defendant’s room in the barracks when he threw her up against a door when she refused to perform oral sex on him. After defendant pushed her, she capitulated and orally copulated him.
This testimony was admissible under section 1108, subdivision (d)(1)(D) as “[c]ontact, without consent, between the genitals... of the defendant and any part of another person’s body.” Section 1108, subdivision (d)(2) incorporates the definition of “consent” in Penal Code section 261.6 with exceptions not applicable here. Penal Code section 261.6 defines consent “to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved....” The evidence was sufficient to support a conclusion that on at least two occasions, the sexual contact between defendant and Kimberly was not consensual on her part as consent is as defined in Penal Code section 261.6. The trial court did not abuse its discretion in admitting Kimberly’s testimony.
Section 1108, subdivision (d)(2) states: “‘Consent’ shall have the same meaning as provided in Section 261.6 of the Penal Code, except that it does not include consent which is legally ineffective because of the age, mental disorder, or developmental or physical disability of the victim.”
In light of our conclusion that Kimberly’s testimony was properly admitted under section 1108, we need not address defendant’s alternative argument that the evidence should not have been admitted under section 1101, subdivision (b).
Defendant contends his trial counsel was ineffective because she did not move to strike Kimberly’s testimony and did not request that the jury be admonished to disregard this testimony. As we have seen, the trial court did not abuse its discretion in admitting the testimony under section 1108. There is thus no merit in defendant’s claim his trial counsel was ineffective, because any objection would have been futile. (People v. Anderson (2001) 25 Cal.4th 543, 587 [defense counsel not required to proffer futile objections].)
In addition, the jury was instructed that the uncharged acts could be considered only if it found by a preponderance of the evidence that defendant had committed them. It also was instructed that the uncharged crime evidence could be considered only for the limited purpose of deciding whether “defendant acted with the intent to engage in lewd conduct with Maritza” or “defendant had a common plan or scheme to commit the offenses alleged in this case.” The jury was admonished that its conclusion that defendant had committed uncharged offenses was only one factor to consider, was not “sufficient by itself to prove that the defendant is guilty of the crimes charged, ” and that the People had the burden of proving defendant’s guilt of each charge beyond a reasonable doubt.
C. Noelle M.
Noelle M. enlisted in the Marine Corp at the age of 18 in 2004. In September 2005, she was assigned to her first duty station following basic training, Camp Pendleton Marine Base. Defendant was her noncommissioned officer in charge. She was a private and he was a corporal. Within the first week of this assignment, defendant asked Noelle to lunch. They sat in his truck and ate. Defendant started asking whether she wanted to do something sexual with him and she said she did not. Defendant asked if he could touch her, and then surprised her by touching her breasts. She pushed him away. Defendant stuck his hand in the front waistband of her pants near her vagina, against her wishes. He said it was okay and asked her to let him see her. Noelle did not know what to think because he was her superior. She was able to push him off. Later in the day defendant approached her and told her not to tell others about this incident.
Noelle continued to work with defendant on a daily basis. At times he called her into his office and asked if she wanted a massage, or to give him oral sex. She refused. He repeatedly asked her to perform oral sex. She said no each time. Eventually Noelle became so uncomfortable going to work that she felt she needed to tell someone in the chain of command about defendant’s behavior. At the ensuing court martial defendant apologized for his conduct toward her.
Defendant concedes that his prior acts with Noelle fall within the definition of sexual battery, a crime enumerated in section 1108. But he contends the trial court abused its discretion under section 352 in refusing to exclude the testimony as more prejudicial than probative. He argues that his behavior with Noelle was not consistent with his conduct with either Maritza or Jackie. He claims that with Noelle, there was no mutual flirting involved, Noelle made it clear she did not have a sexual interest in him, and he violently persisted nevertheless. He claims in light of these dissimilarities, Noelle’s testimony could only have a “profoundly prejudicial effect on the jury’s decision without providing any counter balancing probative value on the sole issue in contention-whether appellant did in fact engage in illegal conduct, albeit consensual, with Maritza and Jackie.”
As the People point out, Noelle’s testimony was highly probative on the issue of credibility. (People v. Falsetta, supra, 21 Cal.4th at p. 912.) The common theme of defendant’s sexual misconduct was his use of a position of authority to engage in sexually inappropriate activity. In addition, Noelle’s testimony was not nearly as inflammatory as the evidence of the crimes committed against Maritza and Jackie, since it did not involve violence, penetration, or a victim under the age of 18 who was more vulnerable.
The trial court did not abuse its discretion in admitting Noelle’s testimony. In light of our conclusion that Noelle’s testimony was properly admitted under section 1108, we need not address defendant’s alternative argument that the evidence should not have been admitted under section 1101, subdivision (b).
D. Federal Due Process Violation
Defendant argues that admission of Kimberly and Noelle’s testimony rendered his trial fundamentally unfair in violation of his right to due process under the Fourteenth Amendment to the federal constitution.
In People v. Falsetta, supra, 21 Cal.4th 903, the Supreme Court ruled that section 1108 is constitutionally valid against an attack based on due process. (Id. at p. 907.) It concluded that section 352 provides an adequate safeguard that “strongly supports the constitutionality of section 1108.” (Id. at pp. 916-918.) The court observed: “Under section 1108, courts will retain broad discretion to exclude disposition evidence if its prejudicial effect, including the impact that learning about defendant’s other sex offenses makes on the jury, outweighs its probative value. [Citations.]” (Id. at p. 919.)
Here the court engaged in the weighing process required by section 1108 and Falsetta, supra, 21 Cal.4th 903. In addition, the jury received the limiting instruction we discussed above, as mandated by the Falsetta court. (People v. Falsetta, supra, 21 Cal.4th at pp. 923-925.) We find no federal due process error.
II
Defendant’s final argument concerns the testimony of nurse Toyetta Buekes, who examined Jackie and found physical evidence consistent with the sexual acts Jackie said were performed by defendant. “Under the fresh complaint doctrine, ‘proof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose-namely, to establish the fact of, and the circumstances surrounding, the victim’s disclosure of the assault to others-whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of fact’s determination as to whether the offense occurred.’ [Citation.] The jury may consider the evidence ‘for the purpose of corroborating the victim’s testimony, but not to prove the occurrence of the crime. [Citation.]’ (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1522.)” (People v. Manning (2008) 165 Cal.App.4th 870, 880.)
Defendant concedes that Jackie’s statement to nurse Toyetta Beukes was admissible as a fresh complaint, but argues the failure of his trial counsel to request a limiting instruction concerning the testimony prejudiced his right to a fair trial. He contends his attorney should have requested an instruction directing the jury “to consider such evidence only for the purpose of establishing that a complaint was made, so as to dispel any erroneous inference that the victim was silent, but not as proof of the truth of the content of the victim’s statement.” (People v. Brown (1994) 8 Cal.4th 756, 757.)
Toyetta Beukes testified that she is a nurse practitioner specializing in performing examinations on victims of sexual assault. She examined Jackie S. on May 16, 2007, two months after defendant’s sexual conduct with Jackie. Nurse Beukes said that Jackie complained of a sexual assault and described specific sex acts that occurred, without specifying what Jackie described. Beukes said her examination of Jackie’s hymen revealed an old injury consistent with the acts Jackie had described.
The People point out that before nurse Beukes testified, defense counsel objected, and asked the court to limit her testimony to her findings and whether they were consistent or inconsistent with respect to the acts Jackie had described. The trial court ruled that nurse Beukes was to be asked to assume the sexual acts described by Jackie and to determine whether the physical examination was consistent with that description. Nurse Beukes’s written report was excluded.
To prevail on a claim of ineffective representation, a defendant “must establish his counsel’s representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel’s deficient performance, the result of the trial would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 686-687 (Strickland); People v. Williams (1997) 16 Cal.4th 153, 215.)” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007.) “There is a presumption the challenged action ‘“might be considered sound trial strategy”’ under the circumstances. (Strickland, supra, 466 U.S. at pp. 689, 694; accord, People v. Dennis (1998) 17 Cal.4th 468, 541.)” (Ibid.)
“In considering a claim of ineffective assistance of counsel, it is not necessary to determine ‘“whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”’ [Citations.] It is not sufficient to show the alleged errors may have had some conceivable effect on the trial’s outcome; the defendant must demonstrate a ‘reasonable probability’ that absent the errors the result would have been different. [Citations.]” (People v. Mesa, supra, 144 Cal.App.4th at p. 1008.)
Defendant has failed to demonstrate a reasonable probability that had the suggested limiting instruction been given, the result would have been more favorable as to the crimes against Jackie. Jackie testified as to the details of defendant’s sexual acts with her. In addition, her mother, Maria, testified that a month after the boot camp, Jackie disclosed her sexual relationship with defendant. As a result of what Jackie said, Maria took her to the sheriff’s department. Maria said she learned additional details about the incident from a counselor Jackie was seeing. In summary, a limiting instruction would have done defendant no good.
DISPOSITION
The judgment of conviction is affirmed.
We concur: WILLHITE, J., MANELLA, J.