Opinion
C099257
04-12-2024
THE PEOPLE, Plaintiff and Respondent, v. ROYCE ROBERT DEPUTEE, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 20FE009685)
Wiseman, J. [*]
A jury convicted defendant Royce Robert Deputee of three counts of lewd acts on a child under the age of 14 and one count of a nonforcible lewd act on a child under 14. The trial court sentenced defendant to concurrent six-year prison terms for each count. On appeal, defendant argues the trial court erred in admitting evidence of uncharged misconduct that defendant touched the victim's thigh a month or two prior to the charged sexual assault under Evidence Code sections 1101, subdivision (b) and 1108. He also argues the trial court erred in instructing the jury with CALCRIM No. 1191A that it could consider that evidence if it found it true by a preponderance of the evidence, rather than beyond a reasonable doubt. We will affirm.
Undesignated statutory references are to the Evidence Code.
I. BACKGROUND
The information alleged defendant committed three lewd acts on a child under 14 in January 2019. (Pen. Code, § 288, subd. (a).) It also alleged he forcefully committed a lewd act on a child under 14 on that same date. (Id., § 288, subd. (b)(1).)
A. Motion in Limine
Prior to trial, the People moved to introduce evidence the victim felt someone touching her legs while she was in her mother's bed. Initially, the victim thought it was a baby (who was also in the bed), but after the charged sexual assault, she believed it was defendant. The People asserted this evidence was admissible under section 1108 as to defendant's propensity to commit a sexual crime and under section 1101, subdivision (b), as evidence of intent, a common scheme or plan, or motive. Defendant filed a motion in limine to exclude this evidence arguing the probative value of the evidence was low and the undue prejudicial value was high. The trial court ruled this isolated, minimal evidence was neither remote nor unduly prejudicial, and thus admissible under section 1108.
B. Trial
The victim was born in late 2005. She had known defendant most of her life and liked him.
The victim has two sisters. Defendant was the older sister's ex-boyfriend. The older sister and defendant have two boys together.
For three months in 2019, defendant lived in a two-bedroom apartment with the victim, her two sisters, their mother, and the older sister and defendant's two children. The younger sister, the victim and their mother slept in one room, while the older sister, defendant and their children slept in the second bedroom.
The night of the sexual assault, the victim was on the couch in the living room watching a movie while defendant was sitting on a sofa chair. She was wearing a pink sweater and gray sweats. Her sisters were in one of the bedrooms and her mother was sleeping in the other. The victim fell asleep on the couch.
She awoke because she felt someone on top of her. She testified defendant licked her over her clothing. She felt defendant masturbating and heard him making grunting noises. After he licked her, and was masturbating, defendant touched the victim's inner thighs, and she pushed his hands away. After that, she felt his hands go into her pants and try to rub her vagina. Then, he put his hands inside her underwear, and when he tried to put his fingers inside her vagina, she got up and ran into her mother's room.
The next day, the victim reported the sexual assault to her younger sister. In turn, her younger sister reported the sexual assault to their mother and older sister. The victim's older sister and the victim's mother confronted defendant about the assault. Instead of denying what happened, defendant left the apartment. The family called the police, and the victim told responding officers what had happened. A few days later, the victim also told a sexual assault examiner about the sexual assault.
The victim told the jury defendant had improperly touched her a couple of months before the charged sexual assault. At the time, the victim, her mother, defendant, and his one-or two-year-old son were all sleeping on the same bed, with defendant and his son at the foot of the bed. While she was asleep, the victim felt someone grabbing at her leg and squeezing her inner thigh. She pushed the hand away and the groping stopped. Originally, she assumed it was her young nephew. After the sexual assault, she realized that it was defendant who touched her. She testified the way he grabbed her the during the uncharged conduct was similar to the way he did during the charged sexual assault.
At trial, the trial court confirmed the evidence of the uncharged misconduct was admissible under both sections 1101, subdivision (b) and 1108.
The jury instructions included CALCRIM No. 1191A, which stated: "The People presented evidence that the Defendant committed the crime of lewd or lascivious acts on a child younger than 14 years old that was not charged in this case/ This crime is 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 offense. [¶] 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 offense, you may, but are not required to, conclude from that evidence that the Defendant was disposed to or inclined to commit sexual offenses, and based on that decision also conclude that the Defendant was likely to commit, and did commit, lewd or lascivious acts on a child under 14 years old, as charged here. [¶] If you conclude that the Defendant committed the uncharged offense, 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 lewd or lascivious acts/ The People must still prove each charge beyond a reasonable doubt. [¶] Do not consider this evidence for any purpose."
The jury found defendant guilty of the three counts of lewd acts on a child under 14. (Pen. Code, § 288, subd. (a).) It also found him not guilty of a forceable lewd act but found him guilty of the lesser included offense of a nonforcible lewd act on a child under 14. (Id., subds. (a) & (b).)
The trial court sentenced defendant to six years on count four (Pen. Code, § 288, subd. (a)) to be served concurrently with the six-year terms imposed on the other three counts.
Defendant filed a timely appeal.
II. DISCUSSION
Defendant first argues the uncharged sexual misconduct evidence was not admissible under sections 1101 and 1108. He further argues the admission of this evidence violated his federal due process rights. Defendant also contends the trial court erred in giving CALCRIM No. 1191A and not instructing the jury the uncharged incident had to be proven beyond a reasonable doubt. We disagree.
A. Admission of Evidence
"As a general rule, evidence that is otherwise admissible may be introduced to prove a person's character or character trait. (§ 1100.) But . . . such evidence is inadmissible when offered by the opposing party to prove the defendant's conduct on a specified occasion (§ 1101, subd. (a)), unless it involves commission of a crime, civil wrong or other act and is relevant to prove some fact (e.g., motive, intent, plan, identity) other than a disposition to commit such an act (§ 1101, subd. (b))....[¶] In 1995, the Legislature enacted section 1108 to expand the admissibility of disposition or propensity evidence in sex offense cases. Subdivision (a) of that section provides in pertinent part that '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 [permitting court to exclude evidence on weighing probative value and prejudicial impact].'" (People v. Falsetta (1999) 21 Cal.4th 903, 911.) "Available legislative history indicates section 1108 was intended in sex offense cases to relax the evidentiary restraints section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant's other sex offenses in evaluating the victim's and the defendant's credibility. In this regard, section 1108 implicitly abrogates prior decisions of this court indicating that "propensity" evidence is per se unduly prejudicial to the defense." (Ibid.)
In determining whether to admit evidence under section 1108, trial courts "must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must 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." (People v. Falsetta, supra, 21 Cal.4th at p. 917.) Section 352 gives courts discretion to "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."
In conducting this analysis, the trial court should consider: "(1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant's charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time. [Citation.] A trial court balances this first factor, i.e., the propensity evidence's probative value, against the evidence's prejudicial and time-consuming effects, as measured by the second through fifth factors." (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1117.)
In assessing evidence's "probative value,' "[t]he court should not permit the admission of other crimes until it has ascertained that the evidence tends logically and by reasonable inference to prove the issue upon which it is offered...."' [Citation.] Put differently, the uncharged sex offense evidence 'must have some tendency in reason to show that the defendant is predisposed to engage in conduct of the type charged.'" (People v. Jandres (2014) 226 Cal.App.4th 340, 355.)
For example, in People v. Soto (1998) 64 Cal.App.4th 966, the appellate court upheld the trial court's decision to allow admission of evidence of the defendant's prior sexual molestation of his young female relatives when left alone with them. (Id. at pp. 991-992.) Defendant was charged with fondling and rubbing one victim's vaginal and breast areas, inserting his finger into the victim, and exposing himself. (Id. at p. 990.) The prior lengthy incidents of misconduct occurred several years before and included fondling his sister when she was a child and placing his finger inside her vagina, as well as posing his niece naked on her bed for photographs and licking her. (Id. at p. 991.) The court concluded the prior misconduct was "similar" to the molestations charged and was "extremely probative of appellant's sexual misconduct when left alone with young female relatives." (Ibid.)
As defendant acknowledges, "we review the admission of other acts or crimes evidence under Evidence Code section 1108 for an abuse of the trial court's discretion." (People v. Dejourney (2011) 192 Cal.App.4th 1091, 1104.) "The determination as to 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.'" (Id. at pp. 1104-1105.) "[W]e will disturb a trial court's ruling under Evidence Code section 352 only where the court has exercised its discretion in a manner that resulted in a miscarriage of justice." (Id. at p. 1105.) Here, we conclude the trial court's evidentiary rulings were well within its discretion. The prior uncharged conduct was similar to the charged offenses because defendant previously touched the victim's thighs in the middle of the night while she was sleeping in the same manner he did when he sexually assaulted her. In that sense, the evidence tended logically to prove defendant's proclivity toward engaging in inappropriate sexual acts with a sleeping female child, even though her family was nearby. Further, the uncharged inappropriate touching was brief and isolated, making it less inflammatory than the full-frontal attack he was charged with committing on the victim.
The prior uncharged act also was not stale as it occurred within a month or two of the charged offenses. It took up a minimal amount of the jury's time -- only five pages out of 256 pages covering the witness's testimony. For all these reasons, we conclude the trial court did not abuse its discretion in admitting this evidence.
Since the evidence was admissible under section 1108, we have no reason to decide whether it was also admissible under section 1101, subdivision (b) as section 1108 explicitly supersedes section 1101's prohibition of character or disposition evidence. (People v. Soto, supra, 64 Cal.App.4th at p. 984.)
Defendant also argues the admission of this evidence violated his federal right to due process. In response to a similar due process argument in Falsetta, our Supreme Court noted, "The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair." (People v. Falsetta, supra, 21 Cal.4th at pp. 913.) After a detailed analysis of section 1108 and acknowledging that section 352 provides a gatekeeper function which safeguards the defendant's due process rights, our Supreme Court saw "no undue unfairness in its limited exception to the historical rule against propensity evidence" and found it did not deny defendant of due process. (Falsetta, at pp. 913-917, 922.) We reach the same conclusion here.
B. CALCRIM No. 1191A
On the strength of a concurring opinion in People v. Gonzales (2017) 16 Cal.App.5th 494, 505-507, defendant argues the trial court should have instructed the jury it could consider the prior uncharged acts evidence only if it found the evidence true beyond a reasonable doubt, instead of using CALCRIM No. 1191A's instruction that the jury need only find that defendant committed the prior uncharged misconduct by a preponderance of the evidence. He asks us to part company with the contrary conclusion we arrived at in our recent decision in People v. Panighetti (2023) 95 Cal.App.5th 978. We decline defendant's invitation and reaffirm our conclusion that this jury instruction is proper.
In Gonzales, our colleagues in the Second District, Division Six, concluded that giving the substantially identical CALCRIM No. 1191 did not violate defendant's due process rights. (People v. Gonzales, supra, 16 Cal.App.5th at p. 502.) The court rejected defendant's argument that the jury instruction irrationally allowed the jury to conclude the victim's testimony about uncharged misconduct could corroborate her testimony about the charged offenses. (Ibid.) It also rejected defendant's argument the instruction likely resulted in the jury misapplying the beyond-a-reasonable-doubt burden of proof for the charged offenses because the jury could consider the uncharged misconduct if it found the uncharged misconduct true by a preponderance of the evidence. (Ibid.) The court concluded this jury instruction did not violate due process. (Ibid.) Justice Perren wrote separately to argue the trial court should have instructed the jury that uncharged offenses committed against the victim must be proven by a higher standard where the only evidence of the uncharged offense consists solely of the victim's testimony. (Id. at pp. 505-507.) He garnered no support from his colleagues on this point.
In Panighetti, we reviewed the propriety of this jury instruction anew. In that case, the defendant was convicted of several sexual offenses for actions he took that exceeded the scope of his victim's consent. (People v. Panighetti, supra, 95 Cal.App.5th at p. 982.) At trial, the victim testified the defendant committed multiple prior uncharged criminal sexual offenses and domestic violence upon her. (Id. at p. 996.) This evidence was submitted to prove the defendant's propensity to commit the charged offenses. (Ibid.)
We concluded in Panighetti, as we do here, that the defendant's failure to object to the instruction was not forfeited as the defendant asserted the issue involves a violation of substantial constitutional rights. (People v. Panighetti, supra, 95 Cal.App.5th at p. 997.)
We concluded based on People v. Reliford (2003) 29 Cal.4th 1007, 1013 , that CALCRIM No. 1191A complies with the law and does not violate the defendant's due process rights. (People v. Panighetti, supra, 95 Cal.App.5th at pp. 997, 1000.) We decided this instruction did not confuse and mislead the jury or lower the reasonable doubt standard for guilt of the underlying crimes. (Id. at pp. 997-998.) Specifically, and as relevant here, we rejected the defendant's contention that it is too complicated a task for a jury to distinguish between the burden of proof by a preponderance of the evidence for uncharged offenses and proof beyond a reasonable doubt for charged offenses when the evidence of charged and uncharged crimes comes from the testimony of the same victim. (Id. at p. 998.) Having found the instruction correctly stated the law, we declined to act on Justice Perren's concerns as stated in his concurring opinion in Gonzales. (Panighetti, at p. 998, fn. 8.) For these same reasons, we once again conclude CALCRIM No. 1191A accurately states the law and does not violate defendant's due process rights.
C. Cumulative error
Defendant also contends that even if the errors alleged to have been committed by the trial court were harmless on their own, they were prejudicial when considered cumulatively. Since we have found no error occurred, we need not address this argument any further.
III. DISPOSITION
The judgment is affirmed.
We concur: Earl, P. J. Hull, J.
[*] Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.