Opinion
A111802
4-14-2008
THE PEOPLE, Plaintiff and Respondent, v. CLIFFORD ALAN DILBERT, Defendant and Appellant.
NOT TO BE PUBLISHED
A jury found defendant Clifford Dilbert guilty of committing four counts of lewd acts upon children under the age of 14 in violation of Penal Code section 288, subdivision (a). At the time of the offenses, defendant was 53 years old. The jury also found true allegations that three of the four counts involved more than one victim. (§ 1203.066, subd. (a)(7).) With respect to count one, the jury found true the allegations that defendant befriended the child victim for purposes of committing the offense (§ 1203.066, subd. (a)(3)) and that defendant engaged in substantial sexual conduct with the victim (§ 1203.066, subd. (a)(8)). The trial court sentenced defendant to prison for three concurrent terms of 15 years to life, plus a consecutive six-year determinate term. On appeal, defendant alleges a multitude of errors, including evidentiary errors, instructional error, ineffective assistance of counsel, and cumulative error. We affirm.
All further statutory references are to the Penal Code unless otherwise stated.
We affirm the judgment while directing the trial court to correct the minute order and defendants abstract of judgment. (See page 78, post.)
I. PROCEDURAL BACKGROUND
By information filed on September 8, 2004, defendant was charged with four counts of violating section 288, subdivision (a), between May and June 2004. The information alleged that defendant committed the offenses against three children who were all under the age of the 14: C. Doe (count one), N. Doe (count four), and L. Doe (counts two and three). As to count one, the information alleged that defendant had befriended the child victim (C. Doe) for purposes of committing an act in violation of sections 288 and 288.5 and that defendant had engaged in substantial sexual conduct with the victim (§ 1203.066, subd. (a)(8)). As to counts one, three, and four, the information alleged that the offenses were committed against more than one victim within the meaning of section 1203.066, subdivision (a)(7). Additionally, the information alleged aggravated circumstances by reason of multiple victims (§ 667.61, subds. (a), (b) & (e)(5)).
On September 10, 2004, defendant entered pleas of not guilty and denied the special allegations.
On February 10, 2005, the jury convicted defendant of all counts and found all allegations true but for the special allegation that defendant committed count three against more than one victim.
On September 12, 2005, the trial court sentenced defendant to prison for three concurrent terms of 15 years to life on counts one, two, and four, and one six-year determinate term on count three, consecutive to the terms imposed on counts one, two, and four.
This appeal followed.
II. FACTS
A. Prosecution Evidence
The charged offenses related to two instances of lewd conduct. The first instance (counts one, two, and four) occurred in defendants bedroom and involved C. Doe (count one), L. Doe (count two), and N. Doe (count four). The second incident occurred in defendants living room (count three), and involved L. Doe.
In addition to the charged offenses, the prosecution presented evidence that defendant provided or offered to provide the victims, as well as other boys, with cigarettes, alcohol, and marijuana, and showed them or offered to show them pornographic movies. Evidence was also introduced that defendant asked and/or offered to engage in sexual activities with boys on various occasions.
1. The Incident in Defendants Bedroom
a. Testimony of C. Doe
C. Doe, who was 13 years old, met defendant in May 2004. C. Doe was introduced to defendant by C. Does friend, J.T., who was 17 years old. C. Doe regularly began to spend time at defendants house, where he "hung out" with J.T., L. Doe, age 12, and N. Doe, C. Does brother, age 12. On one occasion, defendant gave C. Doe $5 for no apparent reason.
C. Doe testified that defendant touched him in late May or early June 2004, just before his fourteenth birthday. Just prior to the incident, C. Doe had been downstairs with L. Doe, N. Doe, and defendant, watching a pornographic movie. C. Doe explained that L. Doe asked if he could use defendants lubrication and that L. Doe asked defendant if he could show them how to masturbate. C. Doe thought it was a little bit unusual for L. Doe to say something like that. C. Doe testified that defendant responded to the request by saying, "Uh, sure. Lets go upstairs and Ill show you." C. Doe, L. Doe, and N. Doe went upstairs with defendant. C. Doe could not remember why he went upstairs, but he remembered being a "little" scared and unsure of what was going to happen. He thought he might be using the lubricant on himself, but he did not think that anyone else was going to touch him.
C. Doe testified that when he, L. Doe, and N. Doe got to the bedroom, defendant "told us to take our pants off or better yet, just to take all [our] clothes off." Initially, C. Doe took off only his shoes because he was uncomfortable taking off all of his clothes. C. Doe explained that he felt uncomfortable because he barely knew defendant, who was older than the boys. N. Doe and L. Doe also took off their shoes. Defendant took off everything but his underwear. Defendant told the boys to sit on the bed and get comfortable. C. Doe, who was still fully clothed, sat on the bed as directed. C. Doe testified that defendant "told us just take our pants off" and that defendant said it was all right because "we were all guys." C. Doe took down his pants and underwear to his knees. C. Doe said that defendant helped him take down his pants by "kinda pull[ing] them down a little." C. Doe saw N. Doe take down his own pants without help from defendant. Defendant helped L. Doe pull down his pants.
C. Doe explained that after his pants and underwear were lowered to his knees, he was lying on the bed. Defendant was on C. Does right, L. Doe was diagonal to C. Doe, and N. Doe was "right in front." Defendant put the lubricant on C. Does penis. Defendant then started rubbing C. Does penis, which made C. Doe feel uncomfortable. C. Doe explained that he felt uncomfortable because he did not expect defendant to do this and because "he was older . . . ."
Defendant rubbed C. Does penis for approximately ten minutes. At some point, the other boys left the room. C. Doe said that he felt even more uncomfortable after the other boys left the room. N. Doe and L. Doe returned five to seven minutes later; J.T. was with them. Defendant asked J.T. if he wanted to join them; J.T. declined the offer.
When defendant finally stopped rubbing C. Does penis, C. Doe put his clothes on and went downstairs. The other boys went with him. All the boys then left defendants house. C. Doe said that he and his brother N. Doe briefly talked about the incident. Once home, C. Doe did not tell an adult about what had occurred because he was nervous and embarrassed and did not want anyone to know about it.
After the incident in the bedroom, defendant never touched C. Does private parts again. However, defendant offered to touch C. Doe "about every other time that [C. Doe] came over." On more than one occasion, defendant asked C. Doe, "Do you want to go back upstairs?" C. Doe was never alone with defendant after the incident. C. Doe did not think about calling the police because he was uncomfortable and did not want to tell anyone about the incident.
b. Testimony of N. Doe
N. Doe testified that something strange happened with C. Doe and defendant in defendants bedroom. N. Doe explained that he, L. Doe, C. Doe, and defendant had been in the living room watching television, when L. Doe asked "how to use lube." N. Doe was "not really sure" what "lube" was. N. Doe thought that defendant would show L. Doe how to use the "lube."
N. Doe said that he went upstairs because he was following C. Doe and L. Doe. N. Doe felt "nervous" about going upstairs with defendant because he did not know what was going to happen. Once they were in the bedroom, defendant told the three boys, "you can pull down your pants." N. Doe said that he pulled down his pants and underwear because defendant "kind of persuaded" him to do so. N. Doe could not remember what defendant said or if defendant touched his (N. Does) pants. N. Doe saw defendant help C. Doe and L. Doe pull down their pants. N. Doe explained that defendant "kinda tugged on them" with "his two fingers and sort of pulled them down further."
N. Doe saw defendant take down his shorts to his ankles. He could not remember if defendant removed his underwear. When defendant said to get on the bed, N. Doe did so. C. Doe, L. Doe, and defendant also got on the bed. Once the four of them were on the bed, defendant showed C. Doe, instead of L. Doe, "how to use lube and touched his private parts using the lube."
It made N. Doe "really uncomfortable" to see defendant touching and rubbing his brothers penis. N. Doe did not want "that" to happen to C. Doe, and N. Doe was scared. N. Doe watched defendant rub C. Does penis for about five to seven minutes.
When N. Doe heard a knock at the front door, he left the room with L. Doe. N. Doe went downstairs to see who was at the door. As N. Doe was leaving the bedroom, defendant said to him, "dont leave, youre next."
N. Doe greeted J.T. at the front door, and he brought him upstairs to make sure that defendant would stop touching his brother. N. Doe was worried about his brother. When N. Doe and J.T. went upstairs, C. Doe was already pulling up his pants. After C. Doe and defendant got dressed, everyone went downstairs. The boys left a few minutes later. When he got home, N. Doe did not tell anyone about the incident. N. Doe said that he was embarrassed about what had happened.
c. Testimony of L. Doe
L. Doe remembered the incident when defendant touched C. Doe. The incident occurred in defendants bedroom around 5:00 or 6:00 p.m. L. Doe explained that he, C. Doe, N. Doe, and defendant had been in the living room watching television, when defendant said that he had some lubricant that he would show them how to use. L. Doe was certain that it was defendant who brought up the topic of using the lubricant. When defendant said he could show them how to use the lubricant, L. Doe said, "[O]kay, lets go upstairs." L. Doe explained that he was "partly scared that [defendant] might do something if he did not go upstairs," and he "felt comfortable with [his] friends." L. Doe did not think that they would all be in the same room. He thought that they "would use the lubricant privately" without anyone else watching. L. Doe thought the lubricant would be used for masturbating.
Once in the bedroom, defendant removed his shirt and pants, but left his underwear on. Defendant told the boys to remove their clothes and to lie down on the bed. L. Doe, N. Doe, and C. Doe lay on the bed as instructed.
Before lying on the bed, L. Doe partly removed his clothes. He explained that he took his pants down just below his waist, but did not remove his underwear. L. Doe said that he felt uncomfortable with defendant at this point. When asked why he and the other boys all pulled their pants down at that moment, L. Doe said he, C. Doe, and N. Doe were "scared that [defendant] might do something." L. Doe testified that he "thought [defendant] might hurt me. [¶] . . . [¶] Because he was kind of forcing us to, I guess. It didnt really seem like we had a choice. It didnt seem like he was asking, more that he was telling us." L. Doe did not remember if defendant touched his own penis. L. Doe saw defendant touch C. Does pants by "nudg[ing] them a little bit."
As L. Doe sat on the bed, he saw defendant first squeeze the lubricant into his hands and then touch C. Does penis. L. Doe said that defendant touched C. Does penis for approximately 5 to 10 minutes. L. Doe could see that C. Doe was uncomfortable about being touched by defendant and L. Doe "didnt really like . . . seeing that C. Doe was uncomfortable."
At some point, L. Doe and N. Doe left room. As the boys were leaving, L. Doe heard defendant tell N. Doe he was next. L. Doe went downstairs and greeted J.T. at the door. L. Doe told J.T. what had happened. L. Doe went home to check in and then returned to defendants house. When he returned, he saw defendant, N. Doe, and C. Doe watching television in the living room. L. Doe explained that he did not tell anyone about what had happened when he went home because he was embarrassed. L. Doe also thought that C. Doe would be mad at him if he told anyone about what had happened.
d. Testimony of J.T.
J.T. remembered seeing something strange in defendants bedroom that involved another boy. On that occasion, N. Doe and L. Doe answered the front door. They started telling J.T. what was going on. J.T. did not like what he heard, but he did not say anything. He followed N. Doe and L. Doe upstairs. J.T., along with N. Doe and L. Doe, went into the bedroom where he saw that C. Doe had his pants down and that defendant was "pretty much just naked," wearing only dark blue underwear. J.T. heard C. Doe say, "Okay, Im done." C. Doe then pulled up his pants. After C. Doe said, "Im done," defendant said, "Would you care to join, [to] do it, [J.T.]?" J.T. said no. All of the boys left the bedroom, went downstairs to watch television, and then went home.
J.T. did not tell anyone about what had happened in the bedroom because it was embarrassing. He further explained that it was "not something you say in public or to anyone." At some point, J.T. did tell his mother about the incident. J.T. explained that after he saw defendant with C. Doe in the bedroom, he felt that defendant was a "bad man." However, he decided to "let that event go," and he continued to spend time at defendants house. J.T. thought that defendant might do "something like that" to him.
2. Incident in Defendants Living Room
a. Testimony of L. Doe
Following the incident in defendants bedroom, defendant touched L. Doe. L. Doe said that he had been sitting on the couch with N. Doe and defendant, watching television. L. Doe further explained that as he was sitting on the couch defendant pulled L. Does pants down, by pulling them on the side. L. Doe did not want defendant to pull his pants down. Defendant touched L. Does penis with his hand for approximately 10 seconds. L. Doe told defendant that he wanted to go ride his bike. Defendant stopped touching L. Does penis and did not say anything about what had occurred.
b. Testimony of N. Doe
N. Doe said that several days after the incident in defendants bedroom he saw defendant touch L. Doe. N. Doe explained that he, L. Doe, and defendant were sitting on the couch in defendants living room, watching television. N. Doe said that L. Doe "was sort of doing a joke" and pulled down his own pants so that his underwear showed. Defendant suggested that L. Doe pull down his pants a little bit more. N. Doe saw defendant tug on L. Does pants and touch L. Does penis. N. Doe observed defendant rub L. Does penis for a couple of seconds. After L. Doe pulled up his pants, N. Doe and L. Doe stood up and left.
3. Other Acts
a. Testimony of C. Doe
On more than one occasion, defendant gave C. Doe beer and offered him marijuana. Defendant also smoked marijuana in front of C. Doe. On a few occasions, C. Doe smoked marijuana when defendant offered it. Defendant offered marijuana to C. Does friends and his brother.
Defendant showed C. Doe pornographic movies. C. Doe knew they were pornographic movies because they showed adults having sex. C. Doe remembered seeing Eighteen and Eager, Sunset Love, and Anal Examiner IV. When defendant showed the movies, he asked if anyone wanted to go up to the bedroom. C. Doe explained that J.T., L. Doe, and N. Doe watched the movies with him. C. Doe further explained that when defendant showed the pornographic movies to the boys, defendant "would say . . . one of you want to go upstairs or something along those lines [or] oh, I really like this movie . . . ."
b. Testimony of N. Doe
On more than one occasion, defendant showed N. Doe pornographic movies. N. Doe recalled watching Eighteen and Eager, but he could not remember the names of the other pornographic movies defendant showed him. N. Doe also said that one time when J.T. was using defendants computer, "he went to a web site and . . . gay porn came up." When defendant came into the room and saw the boys looking at the pornography on his computer, he did not seem angry.
N. Doe explained that he did odd jobs for defendant, such as cleaning the back yard, for which defendant paid him $5 to $10 each time. Defendant also gave N. Doe money, from time to time, for no apparent reason. N. Doe estimated that defendant gave him approximately $60. N. Doe said this additional money was not for doing other work; N. Doe did not consider this money a gift.
Defendant offered N. Doe cigarettes, which N. Doe refused to accept. On more than one occasion, defendant offered N. Doe alcohol and marijuana. N. Doe explained that sometimes they smoked the marijuana and other times they did not, but when they did smoke it they "would get high." Defendant also offered him beer and margaritas.
c. Testimony of L. Doe
At defendants house, L. Doe and his friends watched television, had snacks, and "just hung out." L. Doe watched movies at defendants house. He remembered watching Euro Trip, but could not remember the names of any other movies they watched at defendants house.
On more than one occasion, defendant offered L. Doe marijuana. Defendant kept the marijuana in a brown jar in a cupboard above the sink. L. Doe saw defendant smoke the marijuana with a pipe. L. Doe did not smoke any of the marijuana, but N. Doe, C. Doe, and J.T. smoked it.
L. Doe testified that defendant did not show him any pornographic movies. However, defendant had asked L. Doe if he wanted to watch them; L. Doe said that he did not want to watch that type of movie. Defendant, however, did show L. Doe pornography on the computer located upstairs in defendants house. L. Doe could not remember if defendant made any comments while he showed him the pornography.
L. Doe explained that defendant bought him gifts, including a disposable camera and food. Defendant also took the boys to McDonalds and to Little Caesars. Defendant gave L. Doe a total of approximately $60. L. Doe explained that some, but not all, of this money was for work that he did for defendant. Defendant never told L. Doe why he was giving him the extra money.
Defendant told L. Doe that J.T. had been a good friend to defendant. He also told L. Doe that he (defendant) would enjoy having sex with J.T. Defendant also offered L. Doe a "blow job." L. Doe explained that defendant said, "if you ever want a blow job, just ask me and Ill give you one." L. Doe said that defendant never threatened him. Defendant had offered L. Doe beer and a margarita.
L. Doe remembered a time where he saw defendants penis. L. Doe explained that he and N. Doe were sitting on the couch, and defendant was sitting in a chair. Defendant pulled down his pants without warning. Defendant started touching his penis and then stopped after about a minute.
d. Testimony of J.T.
On one occasion J.T. and his friend M.C. watched a pornographic movie at defendants house. M.C. said that he was tired, at which point defendant said, "I bet I can make you untired." Defendant did not further describe how or where he would make M.C. feel "untired."
J.T. described an occasion when he spent the night at defendants house. J.T. had sustained a head injury, and his mother had asked if he could spent the night at defendants house because she had to go to work early the next day. Defendant agreed, and J.T. felt comfortable about spending the night at defendants house. J.T. slept in a room next to defendants room. J.T. used defendants computer while defendant was taking a shower. About five minutes after defendant got out the shower, he came into the room, while he was naked, and told J.T. that he could stay up as late as he wanted.
J.T., as well as L. Doe and N. Doe, went to defendants house every couple of days. They watched pornographic movies at defendants house. After watching one of the movies, defendant asked the boys if they wanted to go upstairs. Defendant said that movies made him "really horny." All of the boys said that they did not want to go upstairs with defendant.
Defendant offered J.T. alcohol, cigarettes, and marijuana. At defendants request, J.T. purchased marijuana for defendant. J.T. explained that defendant asked him if he knew anyone who sold marijuana and that on three occasions defendant gave him money to buy marijuana. Altogether, defendant gave J.T. about $90 to buy marijuana. J.T. bought the marijuana and took it to defendants house. J.T. saw defendant smoke marijuana approximately seven times. When defendant smoked marijuana, other boys were present as well. Defendant gave J.T. and the other boys marijuana; J.T. smoked marijuana with defendant. J.T. explained that defendant kept the marijuana in a brown jar, which was either in the refrigerator or in a kitchen cabinet.
At some point, J.T. used a digital voice recorder to surreptitiously record a conversation he had with defendant and L. Doe, where defendant offered the boys marijuana. J.T. later gave the recording to the police.
No transcript of the recording is contained in the record on appeal. The recording was played for the jury. In closing argument, the prosecutor explained that in the recording defendant told J.T. and L. Doe that he did not intend to smoke that evening and that he could give them the pipe if they wanted to smoke anything.
J.T. described a sexual game called the "nervous game." He explained that one person touched another persons leg and asked if the person touched was nervous. If the person said no, the person doing the touching would move his hand higher and higher until the other person said to stop. J.T. played the nervous game with defendant. J.T. admitted that he taught defendant how to play the "nervous game."
e. Testimony of Other Minor Witnesses
M.C., who was 15 years old, had gone to defendants house with J.T. Defendant offered to show the boys a pornographic movie, but M.C. declined. Defendant also offered the boys beer and margaritas. Defendant said that the boys could smoke marijuana at his house if they ever wanted to do so.
M.C. went back to defendants house on two or three more occasions. On one of those occasions, M.C., along with J.T., watched the movie Triple X, which was not pornographic. At the end of the movie, J.T. said he was going home because it was pretty late. Defendant then said, "are you sure you want to go? . . . [I]f you want I can take you guys upstairs so you wont be tired." M.C. thought this comment was really strange. He and J.T. left after defendant made this comment. M.C. explained that he decided not go back to defendants house because of defendants comment. M.C. admitted that defendant never mentioned any specific sexual act, but he said it was implied by the way defendant said it. Defendant also told M.C. that he could use the bedroom if he ever wanted to bring a girl over.
S.B. was 13 years old. She explained that there was a time in the previous year when defendant approached her and her friend T.M. while they were playing football outside her house. Defendant asked if they wanted to go his house and drink some tequila.
T.M. was 14 years old. He did not know defendant, but remembered him as the man who approached him when he was with S.B. T.M. did not remember what defendant said, and he did not talk to defendant. T.M explained that he was not listening to the conversation between S.B. and defendant. He further explained that he had seen defendant on prior occasions "walking the track and . . . had seen him more than three times and it was weird." T.M. said he "just got a weird feeling." On one occasion, defendant approached T.M. as he was sitting on a bench in a park with another boy. Defendant said hello. T.M. said he felt uncomfortable with defendant because defendant "freaked [him] out, kinda."
A.W. was 16 years old. He and J.T. had been friends for a few years. On more than one occasion in 2004, A.W. gave J.T. marijuana. A.W. went over to defendants house one time. While at defendants house, A.W., J.T., and defendant smoked marijuana.
C.L., who was 14 years old, met defendant outside of C. Does and N. Does house. C.L. explained that he had asked C. Doe and N. Doe to introduce him to defendant because he (C.L.) wanted drugs. C.L. went to defendants house and smoked marijuana there. Defendant provided the marijuana, and he also smoked it. C.L. said defendant kept the marijuana in a jar in the refrigerator. C.L. smoked marijuana with defendant on three or four occasions.
On one occasion, defendant asked C.L., N. Doe, C. Doe, and L. Doe if they wanted to go up to defendants bedroom to "do stuff." Although defendant did not say what he meant by "stuff," the question made C.L. feel uncomfortable. C.L. said that defendant gave him some beer. C.L. saw defendant give N. Doe, C. Doe, and L. Doe some "Smirnoff."
C.L. heard defendant talk to N. Doe, C. Doe, and L. Doe about masturbation. On more than one occasion, defendant showed C.L., N. Doe, C. Doe, and L. Doe pornographic movies at defendants house. When asked how he knew the movies were pornographic, C.L. explained that he saw naked people having sex.
C.L. also described an incident where defendant made an "offer" to him. C.L. said, "[Defendant] asked if I wanted to have sex with him." No one else was present. C.L. said no and left. C.L. explained that he did not go back to defendants house because he no longer liked defendant.
At first, C.L. did not tell the police about defendant offering to have sex with him. C.L. explained that he told the police about defendants offer after he spoke with the prosecutor. C.L. further explained that he was initially embarrassed to talk about defendants proposition.
M.L., C.L.s 13-year-old brother, said he knew defendant, but was not sure if he saw defendant in court. M.L. said he did not like defendant because defendant made him feel uncomfortable. M.L. watched movies at defendants house, including Lord of the Rings.
M.L. remembered seeing marijuana in defendants house. M.L. saw C.L. and defendant smoke marijuana. One time defendant gave M.L. some marijuana, and he smoked it. Although defendant never offered him any alcohol, C.L. did see other boys with alcohol at defendants house.
On one occasion, when M.L. was sitting on the couch with defendant, defendant touched M.L.s thigh with his (defendants) hands. M.L. "scooted" away from defendant. Defendant also ran his fingers through M.L.s hair and rubbed his head. M.L. moved away from defendant.
M.L. further testified that C.L., N. Doe, C. Doe, and L. Doe told him that they had seen pornography on defendants computer.
4. The Investigation
Initially, C. Doe, N. Doe, L. Doe, and J.T. did not tell anyone about the incidents at defendants house. J.T. eventually told his mother, and she contacted the police. C. Doe, N. Doe, L. Doe, and J.T. spoke with police officer Ann Dunlavy. C. Doe, N. Doe, and L. Doe did not feel comfortable speaking with Officer Dunlavy, and they did not tell her about the incidents at defendants house. C. Doe, N. Doe, and L. Doe later spoke with Detective Todd Shulman, and they told him about everything that had happened with defendant. J.T. felt comfortable with Officer Dunlavy, but neglected to tell her about the incident in defendants bedroom. J.T. later told Detective Shulman about the incident.
Officer Dunlavy testified that she considered her interviews with the boys to be preliminary in nature. She explained that it is difficult for anyone, particularly children, to discuss sexual assault. She further explained that she was in uniform and had her patrol car parked outside, which she described as creating an atmosphere that was not conducive for boys to confide intensely personal events.
After conducting her preliminary investigation, Officer Dunlavy determined the matter should be referred to a sexual assault investigator, and she contacted Detective Shulman. She further explained that her training and expertise in child abuse had taught her "theres a certain amount of grooming, if you will, or even seduction of the child and all these kids were talking about, the alcohol, tobacco, maybe being able to watch X-rated movies. It was like a pattern of seduction, if you will, or grooming, kind of setting these kids up to be accessible to him that just really made my antenna go up . . . ."
Detective John Corrigan interviewed defendant at the police station. During this interview, defendant stated that he had not purchased marijuana since 1999 or 2000, and he had not smoked any marijuana in the previous year. Defendant denied buying cigarettes or alcohol for children. He also denied showing pornographic movies to children. He admitted buying food and renting movies for the boys. Defendant said that he could not engage in sexual relations and that he watched pornographic movies to remind him what it was like to have sex. Defendant further stated that, due to his medical problems, it was too painful for him to have an erection.
Detective Shulman also interviewed defendant. During the interview, defendant admitted exposing himself to J.T. However, he denied touching any of the boys who were the subject of the investigation. He also denied showing the boys pornography and giving them alcohol and cigarettes. Defendant stated that the boys had never been in his bedroom.
5. Child Sexual Abuse Accommodation Expert
Anthony Urquiza, Ph.D., testified as an expert on Child Sexual Abuse Accommodation Syndrome (CSAAS). He explained that CSAAS describes what commonly occurs in children who have been sexually abused: secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and retraction.
B. Defense Evidence
Eleanor Hynote, M.D., defendants treating physician, testified that defendant suffered from chronic fatigue immunodeficiency syndrome. As a result, defendants work ability, stamina, and energy were significantly impaired. Defendant also suffered from fibromyalgia, which affected his muscles and disrupted his sleep. Dr. Hynote explained that another physician had been treating defendant for chronic pain. She further explained that defendant was participating in an experimental treatment study that was not providing meaningful relief. As a result of his medications, defendant suffered a substantial decrease in libido.
James Heafey, who was 20 years old, met defendant at a synagogue, several months before the charged offenses. He had helped defendant set up his home office, and had been at defendants apartment two or three times. Heafey testified that defendant did not offer him any alcohol or marijuana and did not make any sexual offers or suggestions.
Jack Elder testified that he had known defendant for 15 years. He had left his preteen and teenage children in defendants care. Defendant did not engage in any inappropriate behavior with Elders children. Elder never saw defendant smoke marijuana and saw him drink alcohol infrequently. He explained that defendant was no longer employed because he suffered from chronic fatigue syndrome. Elder trusted defendant and believed that he was an honest and truthful man.
Robert Redfern, a detective with the Contra Costa Sherriffs Department, examined defendants computer and found no pornography on it. Napa County District Attorney Investigator William Francis went to defendants former residence in Walnut Creek and found no one who claimed that defendant had acted improperly.
Armand Lareau testified as an expert on police investigative procedures in child sexual abuse cases. Lareau reviewed the investigation of the charged offenses, and found it to be defective in several respects.
III. DISCUSSION
A. The Trial Court Did Not Err in Denying Defendants Motion for a Continuance or by "Forcing" Defendant to Represent Himself
Defendant contends that the trial court abused its discretion in denying his motion to continue his trial. He further claims that the trial court violated Faretta v. California (1975) 422 U.S. 806 (Faretta) by "forcing" him to represent himself. According to defendant, the trial court transgressed his Sixth Amendment and due process rights to counsel by denying his motion to continue the trial to allow his newly retained counsel to adequately prepare for trial and by forcing him to act as his own attorney. We disagree.
Continuances in criminal cases may be granted only for good cause. (§ 1050, subd. (e).) While a trial court may not exercise its discretion over continuances so as to deprive the defendant of fundamental rights, such as the right to prepare a defense, the right to counsel, and the right to effective assistance of counsel (People v. Snow (2003) 30 Cal.4th 43, 70, People v. Maddox (1967) 67 Cal.2d 647, 652 (Maddox), People v. Fontana (1982) 139 Cal.App.3d 326, 333 (Fontana), Hughes v. Superior Court (1980) 106 Cal.App.3d 1, 4 (Hughes)), the courts rulings in this case had no such effect.
Section 1048, subdivision (b), also relevant here, provides in pertinent part as follows: "[A]ll criminal actions in which (1) a minor is detained as a material witness or is the victim of the alleged offense . . . shall be given precedence over all other criminal actions in the order of trial. In those actions, continuations shall be granted by the court only after a hearing and determination of the necessity thereof, and in any event, the trial shall be commenced within 30 days after arraignment, unless for good cause the court shall direct the action to be continued, after a hearing and determination of the necessity of the continuance, and states the findings for a determination of good cause on the record."
1. Background
a. Substitution of Retained Counsel; Faretta Hearing
On September 10, 2004, defendant appeared at the arraignment with retained counsel Thomas Gill. With the agreement of counsel, trial was set for December 13, 2004, and a readiness conference was set for December 6, 2004.
On November 9, 2004, Gill filed a motion to be relieved as counsel, which was noticed for November 15, 2004. In his declaration, Gill stated that there had been a breakdown in communication with defendant, and the interests of justice required that new counsel represent defendant. Gill attached a letter from defendant, dated November 4, 2004, in which defendant requested that Gill send defendants file to attorney Charles Gravett. Gill also attached a letter of the same date from Gravett that demanded the return of defendants file and the remainder of the retainer.
At the November 15, 2004 hearing, defendant appeared with Gill. Elisabeth Frater, an attorney in Gravetts firm, also appeared. Frater explained that her firm was in discussion with defendant about retention, but her firm had not yet been retained. Frater stated that defendant wanted the matter put over to December 6th "to see if he can retain counsel by that time." Noting that the date requested was the date of the readiness conference, the trial court stated, "That doesnt give Mr. Gill much opportunity here because he will need to be preparing if your office is not going to be able to go forward."
The transcript reflects that Frater said "December 16th." This appears to be a transcription error, as the trial court noted that the date requested was the date of the readiness conference, which the record reflects was set for December 6, 2004.
The trial court advised defendant that his trial was set for December 13, 2004, and inquired as to when defendant would know if he could retain new counsel. Defendant said that he hoped to retain new counsel in "two or three weeks."
When the court asked defendant if he was opposed to having Gill relieved as counsel, he replied, "No, your Honor." The following colloquy took place. "THE COURT: And you understand that if you dont hire your own attorney, you will be representing yourself in this case? [¶] [THE DEFENDANT]: Yes, I do. [¶] THE COURT: Okay then, before I relieve Mr. Gill, I need to go through certain terms. You understand that you are looking at a 15 to 35-year sentence? [¶] [THE DEFENDANT]: Yes, I do. [¶] THE COURT: And you understand that you have a right to have an attorney appointed to represent you if youre unable to afford an attorney? [¶] [THE DEFENDANT]: Yes, your Honor. [¶] THE COURT: And its generally not a wise choice to represent yourself in a criminal matter. [¶] [THE DEFENDANT]: Yes. [¶] THE COURT: It looks like you have four 15-years to life sentences. You have 14 years maximum confinement for counts one through four. And weve already gone through that youre looking at many life terms. Further, if you are representing yourself, there will be no special treatment given to you because youre representing yourself. You understand that? [¶] [THE DEFENDANT]: Yes, I do, your honor. [¶] THE COURT: Further you will be opposed by a trained prosecutor. You must comply with all the rules of criminal procedure and evidence just as an attorney must. And further you cannot appeal based on a claim that you are not competent to represent yourself . . . . You have the right at anytime to hire your own attorney; however, you need to know that the case may or may not be delayed to prepare to let [sic] that counsel represent you. This is currently set for jury trial and you should be prepared to go forward on December 13, 2004 and should you get a new attorney, I cannot guarantee you that you or your attorney will be able to get a continuance. You understand that? [¶] [THE DEFENDANT]: Yes, I do. [¶] THE COURT: Okay. And its your wish to represent yourself?" [¶] [THE DEFENDANT]: In the event I cannot retain counsel."
After defendant signed the written Faretta warnings, the trial court relieved Gill as defendants attorney of record. The court further advised defendant, "[Y]ou are ordered to be here December 6th, 2004, at 1:30 p.m. . . . At this point I would anticipate that you will be prepared to go forward and your counsel will be prepared to go forward." Gill then gave defendants file to Frater. At defendants request, Gill also gave Frater the discovery.
The prosecutor requested that the matter be put over for a hearing to confirm counsel. At defendants request, and with Fraters concurrence, the hearing was set for November 24, 2004.
b. First Motion to Continue
On November 22, 2004, Frater filed a motion to continue the December 13, 2004 trial date, which she requested be heard on November 24, 2004. In her declaration, Frater stated that she had been retained by defendant and was unable to proceed with the scheduled jury trial for the following reasons: "I received the case from [d]efendants previous attorney on November 15, 2004 . . . . [T]he file contains numerous videotaped interviews from complaining witnesses. These allegations involve sexual abuse of minors and therefore defendants exposure of 15 years to life in prison is very great. In the short amount of time that I have been able to review the file I note there are at least 100 pages of transcripts to review, numerous supplemental police reports and many items seized by the police in connection with this case that need to be examined. As far as I can discern there has not been any defense investigation conducted in this case." Frater requested that the trial be continued to February 14, 2005.
At the November 24, 2004 hearing, the prosecutor stated that he thought defendants motion set forth good cause for continuance. Frater stated that she had discussed the continuance with the prosecution, and stated "we would respectfully request February 7th for the readiness [conference] of January 31st." However, the prosecutor stated that he was uncomfortable with these dates because he knew "the victim[s] would like to have this matter resolved." After a brief discussion with counsel, the trial court set the trial for January 31, 2005.
c. Additional Motions to Continue
On January 21, 2005, Frater filed the first of two additional motions to continue the January 31, 2005 trial date. In her first motion, Frater asked to continue the trial "to a date subsequent to March 30, 2005." In her declaration, Frater conceded that this was her second request for a continuance. She reiterated the reasons for the first request for a continuance, and added that she received a shorter continuance than she had requested. She further stated that she was "required to request several items of evidence from the People that had not been previously requested by defendant" and "[o]ne significant item of evidence, the scene photos, were only available on January 20, 2005." She added that she had insufficient time to research potential legal defenses and to analyze various pieces of evidence.
At the January 24, 2005 hearing, the prosecutor opposed a further continuance, asserting that the court "must balance the defendants right to preparing a defense with the victims rights in order to complete the criminal case as soon as possible." At the hearing, a parent for two of the victims explained that her sons had been ready to testify on December 15th, and that it was not healthy for her children to endure yet another postponement. Frater acknowledged that the court was faced with a "tough balancing test," but the potential for a substantial prison term warranted a further continuance. She added that if defendant were "convicted of these charges and the appellate counsel asks me whether or not I was prepared, I would have to say that I wasnt prepared to go and that I was providing ineffective assistance of counsel."
The trial court denied the motion, advising Frater, "Based on what you put in writing and said out loud, I cannot find there is a legitimate basis to continue the case. I think you can be ready by next Monday and provide a competent defense. I understand we dont live in a perfect world and rarely is everybody completely satisfied with everything every day of their life; this is going to be one of those cases." Frater again stated that she was not ready to proceed, to which the trial court responded, "You have made it very clear. I understand that. I just dont find an underlying factual basis to support that conclusion from my point of view . . . ."
On January 26, 2005, Frater filed a renewed motion to continue the January 31, 2005 trial date. In her declaration, Frater stated she was unable to proceed with the scheduled jury trial for the following reasons: (1) she had not had enough time to file a motion pursuant to Welfare and Institutions Code section 827 to obtain juvenile court records that she believed existed for at least one of the minor victims/witnesses; (2) she had not had enough time to subpoena school records of two of the victims that may have contained information about a previous complaint of sexual abuse and an incident where two of the victims may have blown up the science class; (3) an investigator was researching complaints that several of the victims and witnesses purportedly had been involved in acts of vandalism at defendants apartment complex; (4) store records from Target had been subpoenaed regarding arrests or detentions of the victims/witnesses, but such records had not been received by the defense; (5) defense counsel had had inadequate time to retain an expert witness regarding the suggestibility of child witnesses to rebut the testimony of the prosecutions anticipated expert regarding CSAAS; (6) defense counsel had not received a report from a forensic laboratory regarding a digital recording of defendant made by a minor witness that was "completely indecipherable," and (7) defense counsel had not yet received reports from Child Protective Services that possibly contained "additional statements by victims and witnesses and inconsistencies."
At the January 27, 2005 hearing on the renewed motion to continue trial, the trial court noted that Fraters subpoenas were for records to be produced at trial. The court further stated that a continuance, as it related to the Welfare and Institutions Code section 827 petitions, was not appropriate at that point, in light of the fact that computer records revealed no "active or closed cases" with respect to "the one minor that [defense counsel] provided." The trial court denied the motion.
2. The Trial Court Did Not Abuse Its Discretion in Failing to Grant Defendant a Second Continuance
A defendant generally has the right to retain counsel of his choice and is entitled to a reasonable continuance to enjoy that right. (People v. Courts (1985) 37 Cal.3d 784, 789-791.) However, the right is not absolute. (People v. Gzikowski (1982) 32 Cal.3d 580, 586-587.) It " `must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case. [Citation.]" (People v. Blake (1980) 105 Cal.App.3d 619, 624.)
A continuance may be granted only upon a showing of good cause. (§ 1050, subd. (e).) Whether good cause exists rests within the sound discretion of the trial court. (People v. Sakarias (2000) 22 Cal.4th 596, 646.) This discretion "may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare." (Ibid.) Upon review, defendant bears the burden of establishing that denial of a continuance constituted an abuse of discretion. (People v. Beeler (1995) 9 Cal.4th 953, 1003.) "In determining whether a denial was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request." (People v. Frye (1998) 18 Cal.4th 894, 1013.) Reversal of a conviction is unwarranted if the defendant fails to show an abuse of discretion and resulting prejudice. (People v. Barnett (1998) 17 Cal.4th 1044, 1126 (Barnett).)
Defendant, in his statement of supplemental authority, relies on People v. Jacobs (2007) 156 Cal.App.4th 728, a recent case from our colleagues in Division Two of this court, for the proposition that he is not required to show that the trial courts rulings were arbitrary and/or beyond the bounds of all reason for establishing an abuse of discretion. There, the court held that the trial court abused its discretion in refusing to continue a sentencing hearing for three days until the trial judge was available. (Id. at p. 735.) In so holding, the court reasoned that "`[t]he discretion of a trial judge is not a whimsical, uncontrolled power, but a legal discretion, which is subject to the limitations of legal principles governing the subject of its action, and to reversal on appeal where no reasonable basis for the action is shown. [Citation.] [Citation.]" (Id. at p. 738.) Jacobs is obviously distinguishable from the instant case, as it involved a minimal continuance at the sentencing stage. The denial of a continuance under such circumstances clearly constituted an abuse under any view of the legal discretion afforded to a trial court.
The trial court did not abuse its discretion in failing to grant defendant a second continuance. Here, the court had previously granted defendant a six-week continuance to allow for his newly retained counsel to prepare for trial. Additionally, the case had preference because of the ages of the victims and the nature of the charged offenses. (§ 1048, subd. (b); see fn. 4, p. 17, ante.)
In support of the second motion for continuance, Frater largely recited the same reasons why the first continuance was needed, to wit: no discernable defense investigation had been conducted; defense counsel needed to review various videotaped interviews of the complaining witnesses; and defense counsel had had inadequate time to prepare for a thorough and competent defense. Defense counsel further stated that the scene photographs, which she characterized as "significant" items of evidence, had not been made available until January 20, 2005, the day before her motion. The court was fully justified in considering these reasons insufficient to require a further continuance.
The photographs of the scene were entered into evidence without objection.
The renewed motion for continuance similarly failed to establish good cause. Although defense counsel cited several additional reasons why she was unprepared to proceed, the gist of the motion was that she needed additional time: (1) to gather evidence against the minor victims and witnesses (i.e., juvenile court records, school records, Target records, CPS records); (2) to review a forensic analysis that had been requested, but not yet prepared, of the digital recording purportedly portraying defendant as offering marijuana to minors; and (3) to retain and prepare an expert witness to rebut the testimony of the prosecutions expert witness regarding CSAAS.
With respect to the juvenile court records, the record reflects that defense counsel knew the identity of the minor victims/witnesses since she had been provided with the discovery in November 2004, yet, as of January 27, 2005, she had filed no Welfare and Institutions Code section 827 petitions. Moreover, the trial court stated that it had reviewed the "[s]ustained computer records and it has described to counsel that there does not appear to be active or closed cases of the one minor that you provided."
Defense counsel also stated that she had been unable to obtain the subpoenaed store records from Target. However, as the trial court noted, the subpoena for such records was returnable at trial. The record does not reflect that a witness from Target was called at trial, or that defendant sought a continuance to obtain such witness. In any event, C. Doe, L. Doe, and J.T. admitted shoplifting from Target. Additionally, N. Doe admitted stealing various items from other locations.
Defense counsel also requested time to interview local residents regarding complaints that several victims and witnesses, who lived in defendants apartment complex, had committed acts of vandalism, including "breaking into automobiles and stealing from them." In her declaration, Frater stated that she had retained an investigator "to contact the security officer of the apartment complex and to contact witnesses to this vandalism and theft and has not had sufficient time to locate those persons and to interview them." However, Frater did not further describe the extent of the investigation and how long she expected it would take. Fraters comments during the hearing on the motion shed no further light on this issue. Moreover, the record reflects that no such witnesses were called at trial, or that defendant sought a continuance to obtain such witnesses. In any event, M.L. and C.L.s grandmother admitted that she had been contacted by a person complaining that her grandsons had been vandalizing cars in the neighborhood.
The digital recording to which defense counsel referred portrayed defendant as offering marijuana to minors. By the time of trial, defense counsel had received a transcript of the recording from the prosecution. Defense counsel acknowledged the transcription of the recording, but refused to stipulate to its contents. The recording was entered into evidence, and defense counsel cross-examined J.T. about how and why he made the recording.
Defense counsel requested additional time to retain and prepare an expert witness regarding the suggestibility of child witnesses. Defense counsel did present such a witness at trial. On appeal, defendant claims that his expert Lareau was unprepared due to the time constraints of trial. Specifically, defendant contends that Lareau, on cross-examination, was forced to admit that he had not had enough time to review the videotaped interviews of the minors. However, Lareau did not testify that he had had insufficient time to review the videotapes. Rather, he said that he did not watch any of the videotapes because they were not offered to him. When asked whether he thought watching the videotapes would be important to formulating his opinion, Lareau responded, "I would have to say, yes . . . . [¶] It would have been very helpful to see it all."
Out of the presence of the jury, defense counsel argued that she had not had enough time to provide Lareau with the videotapes. Rejecting the assertion that it would have been "impossible" to show Lareau the videotapes, the trial court noted that Lareau had not been hired "until very recently. Thats a decision that the defense made . . . ." The court further stated, "I really dont understand why . . . Lareau or some other expert couldnt have been hired after November 12th but before January 27th or 28th of last week. I mean, thats [a] decision[] youve made, but I dont think the fact that he wasnt hired until later becomes the Courts problem." Defense counsel agreed that it was "not the Courts problem," but argued that the prosecution should not be able to capitalize on the defenses time constraints. To minimize the risk of an unfair advantage, the court obtained an assurance from the prosecution that it would not further mention that Lareau did not review the videotapes. The prosecution did not mention the videotapes again.
The record provides no indication that the denial of the second continuance deprived defendant of effective representation at trial. Accordingly, we conclude the trial court acted within its legal discretion in denying a further continuance.
Defendants reliance on Maddox, supra, 67 Cal.2d 647, Hughes, supra, 106 Cal.App.3d 1, and Fontana, supra, 139 Cal.App.3d 326 is misplaced as these cases are readily distinguishable. In Maddox, the Supreme Court held that a defendant who properly exercises his constitutional right to self-representation is entitled to a reasonable continuance to prepare his defense. (Maddox, supra, 67 Cal.2d at pp. 648, 654-655.) There, the defendant repeatedly requested to represent himself during pretrial proceedings. (Id. at pp. 649-651.) On the morning the trial was set to commence, the trial court finally allowed defendant to represent himself. (Id. at pp. 651-652.) However, the trial court denied the defendants request for a continuance. (Id. at p. 650.) In reversing the judgment, our Supreme Court reasoned that denying the defendant a reasonable continuance would render his right to self-representation an empty formality, and in effect deny him the right to counsel. (Id. at p. 653.)
In Hughes, this court granted a writ of prohibition following the issuance of a contempt order imposed for an attorneys refusal to proceed to trial after his motion for continuance was denied. (Hughes, supra, 106 Cal.App.3d at pp. 3, 6.) The defense attorney had two cases set for trial on the same Monday. (Id. at p. 3.) He guessed incorrectly which trial would actually go forward, used the weekend to prepare that case, and then was denied a continuance on the other unprepared case. (Ibid.) Defense counsel claimed he could not give adequate representation in the unprepared case because there was a " `serious psychiatric issue, " and he had been unable to interview the psychiatrist appointed to examine the defendant. (Id. at pp. 3-4.) We concluded that under these circumstances, if counsel had obeyed the courts order to proceed, his compliance would have denied his client a fair trial. (Id. at pp. 4-5.) In so holding, we explained: "The trial courts error was in finding that there was insufficient reason or excuse for petitioners refusal to obey the courts order to proceed with trial. The sufficient reason was the protection of his clients constitutional right to adequate representation at trial irrespective of the reason for inadequacy." (Hughes, supra, 106 Cal.App.3d at p. 5.) We further emphasized that "this is significantly different from a determination that petitioner had no sufficient reason for being unprepared . . . . The difference between failing without just cause to be ready for trial and failing to obey a court order to proceed to trial because counsel is unprepared is not semantic." (Id. at p. 5.)
Contrary to the assertion made by defendants counsel at oral argument, Hughes, supra, 106 Cal.App.3d 1 does not stand for the proposition that so long as counsel is unprepared, for whatever reason, a trial court abuses its discretion in denying a continuance.
Here, unlike in Hughes, supra, 106 Cal.App.3d 1, the trial court was called upon to consider whether lack of adequate preparation by counsel constituted good cause for a continuance, not whether an unprepared attorney could be held in contempt for refusing to comply with a court order to proceed to trial. It properly determined that, within its broad discretion, the defense had not demonstrated good cause for a continuance.
In Fontana, supra, 139 Cal.App.3d 326, defense counsel was unprepared to proceed on a probation revocation hearing and requested a continuance. Counsel explained that due to the "difficult" case he was trying that week, and the homicide case he had tried the week before, he was unable to complete his investigation. (Id. at pp. 331-332.) He further explained in detail that he had not reviewed the 150-page packet of materials he received just four days before regarding the charged offense, nor had he reviewed the preliminary hearing transcript, and that because his client was in custody in another county he had not yet discussed the case or the preliminary hearing evidence with his client. (Id. at p. 331.) As a result, defense counsel requested a one-week continuance, which the trial court denied. (Ibid.) This court held that "the trial court prejudicially abused its discretion in denying the motion for a continuance," but also noted that "nothing in this opinion should be read as intimating that a mere representation of unpreparedness is sufficient . . . ." (Id. at pp. 334-335.)
Here, unlike in Maddox, supra, 67 Cal.2d 647, Hughes, supra, 106 Cal.App.3d 1, and Fontana, supra, 139 Cal.App.3d 326, defense counsel was not forced to trial with inadequate time to prepare. Soon after defense counsel was retained, the trial court granted defendant a six-week continuance. To the extent defendant complains that the continuance granted was for less time than he requested, the record establishes that defense counsel had received defendants file in November 2004 and had approximately eight weeks to prepare for trial. Defense counsel also was not hindered by the difficulties of having a client in custody. The record indicates that, at all relevant times, defendant was free on bail. Accordingly, defense counsel had ample opportunity to discuss the case with defendant.
Defense counsel had requested an eight-week continuance and was granted six weeks.
Finally, defendant advances additional reasons for the requested continuance that were not raised below. Defendant argues that in addition to not having adequate time to review discovery, his trial counsel may have decided not to interview a prosecution witness until the investigation regarding possible impeachment was completed. He further claims that his trial counsel needed additional time to determine whether to file a motion for discovery under Pitchess v. Superior Court (1974) 11 Cal.3d 531, and to investigate the prosecutions CSAAS expert witness. These additional arguments, which in all events are unsupported by a declaration from trial counsel, were not presented to the trial court when the continuance was requested. Accordingly, they are of no significance in evaluating whether the court abused its discretion in denying the motion. (People v. Panah (2005) 35 Cal.4th 395, 425.)
In sum, defendant has failed to establish that the trial court abused its discretion in denying his motion for a continuance and there is no indication that he suffered any prejudice as a result of that denial.
3. The Trial Court Did Not Commit Faretta Error
Defendant claims that the trial court committed multiple errors in "directing" him to waive his right to counsel and represent himself. He further contends that the purported Faretta error "reinforces" his argument that the trial court was "insufficiently sensitive" to his right to counsel, and abused its discretion in failing to grant a second continuance. We disagree.
The record reflects that defendant acted as his own attorney for a maximum of seven days during pretrial proceedings. During this seven-day period, defendant was not required to represent himself at any hearings or at any other crucial stage of the proceedings.
Gill was relieved as counsel on November 15, 2004. In her November 22, 2004 declaration, Frater stated that she had been retained by defendant.
As our Supreme Court has observed: " `A defendant in a criminal case possesses two constitutional rights with respect to representation that are mutually exclusive. A defendant has the right to be represented by counsel at all critical stages of a criminal prosecution. [Citations.] At the same time, the United States Supreme Court has held that because the Sixth Amendment grants to the accused personally the right to present a defense, a defendant possesses the right to represent himself or herself. (Faretta [], supra, 422 U.S. 806, 819 . . . .) " (People v. Koontz (2002) 27 Cal.4th 1041, 1069 (Koontz).)"
`The right to counsel is self-executing; the defendant need make no request for counsel in order to be entitled to legal representation. [Citation.] The right to counsel persists unless the defendant affirmatively waives that right. [Citation.] " (Koontz, supra, 27 Cal.4th at p. 1069.) It is well established that a valid waiver of the right to counsel requires "(1) a determination that the accused is competent to waive the right, i.e., he or she has the mental capacity to understand the nature and object of the proceedings against him or her; and (2) a finding that the waiver is knowing and voluntary, i.e., the accused understands the significance and consequences of the decision and makes it without coercion. [Citations.]" (Koontz, supra, 27 Cal.4th at pp. 1069-1070.)
"On appeal, we examine de novo the whole record—not merely the transcript of the hearing on the Faretta motion itself—to determine the validity of the defendants waiver of the right to counsel. [Citation.]" (Koontz, supra, 27 Cal.4th at p. 1070.)
Defendant contends that the trial court committed Faretta error when it "forced [him] to represent himself until he was able to retain new counsel." He contends that he never made an unequivocal request to represent himself, and that his acquiescence in self-representation was involuntary.
Although defendant complains that he was "forced" to represent himself pending his retention of new counsel, he never indicated that he did not want to represent himself. Rather, when the trial court asked him if he wanted to represent himself, he replied, "In the event I cannot retain counsel." Defendant confuses an "equivocal" request with a "conditional" one. (People v. Michaels (2002) 28 Cal.4th 486, 524.) Our Supreme Court has drawn a distinction between such requests. (Id. at pp. 523-524.) For example, where a defendant makes an unequivocal request to represent himself, but states that he is doing so only because the court denied his Marsden motion, his request to represent himself remains unequivocal. (Id. at p. 524.) "There is nothing equivocal in a request that counsel be removed and, if not removed, that the defendant wants to represent himself. Once the court has decided not to remove counsel, the defendant has the choice of going ahead with existing counsel or representing himself. There is nothing improper in putting the defendant to this choice, so long as the court did not err in refusing to remove counsel. [Citations.]" (Ibid.) So too here, there was nothing equivocal in defendants request to retain new private counsel, or if he was unable to do so, his desire to represent himself.
People v. Marsden (1970) 2 Cal.3d 118.
We also reject defendants claim that his waiver of counsel was not voluntary. In People v. Smith (1985) 38 Cal.3d 945, 956-957, our Supreme Court rejected a defendants assertion that his waiver of counsel was not voluntary under Faretta. There, after a Marsden motion directed to the entire public defenders office was denied, the defendant asked for a continuance to obtain private counsel or to represent himself, and later renewed his request to represent himself. (Smith, supra, 38 Cal.3d at p. 949.) That request was granted. (Ibid.) The defendant argued on appeal that, after the trial court improperly denied his Marsden motion, his choice was between accepting counsel who should have been relieved or representing himself. (Smith, supra, at p. 957.) In rejecting the defendants claim that his waiver of counsel was not voluntary, the Supreme Court stated that the trial courts Marsden ruling was correct and, "[a]ccordingly, each of the alternatives facing defendant was proper." (Ibid.; accord, People v. Leonard (2000) 78 Cal.App.4th 776, 784-785, 789.)
Here, unlike in People v. Smith, supra, 38 Cal.3d 945, defendant was not faced with the choice of accepting counsel who should have been relieved or representing himself. Rather, after relieving Gill as counsel of record, the court advised defendant that if he did not hire his own attorney, he would be representing himself. Defendant did not object to the removal of retained counsel, and in fact specifically indicated that he was not opposed to Gills removal. However, on appeal, he maintains that the trial court should not have allowed Gill to withdraw as counsel, or at least should have advised Gill that if defendant could not retain new counsel, Gill would remain counsel of record and should prepare for trial. Assuming this contention is cognizable on appeal, defendant cites to no authority for the proposition that where grounds exist to relieve retained counsel, the trial court should require counsel to remain as counsel of record, unless and until defendant is able to retain new counsel. We therefore cannot conclude that defendants waiver of counsel was involuntary.
Defendant further claims that the trial court engaged in a perfunctory inquiry as to his understanding of the risks and dangers of self-representation, and wrongly concluded that he was capable of acting as his own attorney. "In order to make a valid waiver of the right to counsel, a defendant `should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open." [Citation.] (Faretta, supra, 422 U.S. at p. 835 [].) No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation; the test is whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case. [Citation.]" (Koontz, supra, 27 Cal.4th at p. 1070.)
Defendant complains that the warnings he received fell short of the suggested admonitions set forth by our Supreme Court in People v. Lopez (1977) 71 Cal.App.3d 568, 572-574. (See also Koontz, supra, 27 Cal.4th at pp. 1070-1071.) He argues that the trial court provided "perfunctory advice" of the risks of self-representation, failing to discuss with him the nature of the charges and the complex enhancement allegations. He further contends that the court gave "inadequate, inaccurate and conflicting advice" on the range of punishment. Although the court did not discuss the nature of the charges, and provided somewhat conflicting advisements regarding the range of punishment, we conclude that the warnings given sufficed to put defendant on notice of the dangers of self-representation.
The trial court initially advised defendant that he was "looking at a 15 to 35-year sentence." The court later told defendant that he was subject to "four 15-years-to-life sentences," and then in the next breath said, "[y]ou have 14 years maximum confinement for counts one through four."
Defendant acknowledges that the trial court inquired about his educational background, but complains the court wrongly concluded that he was "capable" of acting as his own attorney since his knowledge about criminal law and procedure was "woefully inadequate." A defendants legal knowledge, however, is not relevant to an assessment of his knowing exercise of the right of self-representation. (Faretta, supra, 422 U.S. at p. 836.) Rather, "the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself." (Godinez v. Moran (1993) 509 U.S. 389, 399.) Nothing in the record indicates any basis for doubting the defendants competence to waive counsel. (Id. at p. 401, fn. 13.)
Finally, although an erroneous denial of a Faretta motion is reversible per se (People v. Dent (2003) 30 Cal.4th 213, 222), automatic reversal is not the appropriate standard under the circumstances of this case. Here, at the Faretta hearing, defendant was advised of his constitutional right to appointed counsel if he could not afford an attorney, and he made clear that he wished to retain new counsel, and in the event he was unable to do so, he would represent himself. Approximately seven days after the Faretta hearing, defendant retained Frater as his new counsel of record. This case does not involve a "total deprivation of the right to counsel at trial," which is a structural defect in the trial requiring reversal. (Arizona v. Fulminante (1991) 499 U.S. 279, 308-310, Chapman v. California (1967) 386 U.S. 18, 23-24 & fn. 8 (Chapman).) Any error in granting defendant his Faretta rights was undeniably cured by defendants retention of new counsel on or before November 22, 2004 (see People v. Dunkle (2005) 36 Cal.4th 861, 910), and harmless error beyond a reasonable doubt (Chapman, supra, 386 U.S. at p. 24).
B. The Trial Court Did Not Abuse its Discretion in Denying Defendants Motion to Dismiss the Entire Jury Venire
Defendant claims his right to a fair and impartial jury was violated when the trial court denied his motion to dismiss the jury panel. He claims the jury panel was tainted by Mr. L., a prospective juror, during voir dire questioning. We disagree.
1. Background
The trial court read the charges and explained that defendant had pleaded not guilty. When the court asked the jurors if there was any reason they could not be fair and impartial, the following exchange occurred: "PROSPECTIVE JUROR [L.]: Yeah, hes guilty to me, so. [¶] THE COURT: Thank you, Mr. [L.], well take it up. [¶] PROSPECTIVE JUROR [L.]: All right. [¶] THE COURT: Because at this point you bring up an interesting point. I dont think theres anybody in this courtroom who thinks these charges are okay. But our system is that a person is innocent until theyre proven guilty and everybody has that right to have and go through the process. And if you feel strongly, theres some crimes that people are just not able to be fair. [¶] PROSPECTIVE JUROR [L.]: Ill stay on, but hes guilty, you know. [¶] THE COURT: Thank you. [¶] But Im letting you know that we need to have a fair and unbiased panel as to both sides. And there are some crimes—I mean, pretty much every crime that comes before this court is not one that people approve of. But there are some crimes that are so personal that people dont feel they can be fair and impartial; and if you feel that way already, then, you know, well address that issue. [¶] But, you know, I dont expect anybody is going to like what theyve just heard as far as the [charges] that have been brought against the defendant. But as he sits here right now hes presumed to be innocent and its only after all of the evidence is presented. And the People have the burden of proving beyond a reasonable doubt his guilt. If theyre not able to do so, then jurors are required to return a verdict of not guilty."
Out of the presence of the other prospective jurors, the court spoke with Mr. L., in which the following occurred: "THE COURT: Mr. [L.], . . . you indicated pretty strong feelings that you already feel that [defendant] is guilty just by the nature of the charges. [¶] PROSPECTIVE JUROR [L.]: Yes, by the nature. I think he should die, yes. Child molesting, a raper, kill them. And I think he should be killed. So I would vote to put him away. I vote for him to be killed, but it doesnt work that way; these guys get out and repeat and go over it. [¶] . . . [¶] Hes guilty, hes gonna be guilty. Hes guilty, yeah. Thats how I would be, yes."
The trial court excused Mr. L. At the close of the proceedings held out of the presence of the other prospective jurors, defense counsel moved to dismiss the entire panel of jurors. She explained, "I dont think its possible that the record can reflect what Mr. [L.] did when he responded to your initial questions . . . [h]e jumped out of his seat, he stood up . . . . [¶] . . . ¶ [H]e stood up and . . . it was not merely a statement but would better be characterized as an outburst. And I believe that his comments made in front of the other jurors will have impermissibly tainted them . . . . [I]t wasnt just a casual remark; it was a very pointed, very loud, very alarming remark. And I just dont believe that this jury is going to be able to put that aside."
The prosecutor stated that he "was sitting right next to the juror," and he did not recall Mr. L. jumping up from his seat. The prosecutor explained that it was normal for prospective jurors to have strong emotions during voir dire, but he did not believe that the jury, when deliberating after hearing the evidence, was going to be "thinking about an anonymous juror who said something in the first five minutes . . . ."
The trial court denied the motion, explaining: "I did not note that he stood up, either. I know that he did make the comment, the very definite comment that he felt [defendant] was guilty. I attempted to respond right away and indicate to the jurors the position of our system as far as [defendant] being presumed innocent and going through the rights that [defendant] has . . . ."
2. Analysis
A trial courts denial of a motion to dismiss an entire jury panel based upon a prospective jurors comments that expose the panel to bias and prejudice is reviewed for abuse of discretion under the totality of the circumstances. (People v. Nguyen (1994) 23 Cal.App.4th 32, 41-42; People v. Martinez (1991) 228 Cal.App.3d 1456, 1466-1467; People v. Henderson (1980) 107 Cal.App.3d 475, 493; People v. Vernon (1979) 89 Cal.App.3d 853, 865.) The trial judge is in a better position to gauge the level of bias and prejudice created by juror remarks than is the reviewing court. (People v. Martinez, supra, 228 Cal.App.3d at p. 1466.) Discharging an entire venire is a drastic remedy that should be reserved for the most serious cases; it is not appropriate simply because a prospective juror makes an inflammatory remark. (People v. Medina (1990) 51 Cal.3d 870, 889 (Medina).)
The trial court did not abuse its discretion in denying defendants motion to dismiss the entire jury panel. Mr. L.s comments were not so inflammatory that his interrogation, out of the presence of the panel, and his subsequent removal, and the courts admonitions, were insufficient protection for defendant. Similar statements made by a juror on voir dire have not been found to be unduly prejudicial.
For example, in Medina, supra, 51 Cal.3d 870, several prospective jurors made the following statements in the presence of other prospective jurors: (1) " `even his own lawyers think hes guilty, " (2) " `they ought to have [sic ] him and get it over with[,] " (3) " `in frontier justice style, " and (4) " `bring the guilty S.O.B. in, well give him a trial, and then hang him. " (Id. at p. 888.) Defendant moved to discharge the entire venire, and the trial court denied the motion without prejudice. Our Supreme Court concluded the trial court did not err in refusing to discharge the entire venire. (Id. at p. 889.) In so holding, the Court explained that "the trial court possesses broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required. Defendant cites no case, and we have found none, indicating that such a drastic remedy is appropriate as a matter of course merely because a few prospective jurors [had] made inflammatory remarks. Unquestionably, further investigation and more probing voir dire examination may be called for in such situations, but discharging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant. The present case falls short of that mark." (Medina, supra, 51 Cal.3d at p. 889; accord, People v. Martinez, supra, 228 Cal.App.3d at pp. 1465, 1468-1473.)
Defendant, citing Mach v. Stewart (9th Cir.1997) 137 F.3d 630 (Mach) and Paschal v. United States (5th Cir.1962) 306 F.2d 398 (Paschal), nonetheless insists that Mr. L.s comments presumably tainted at least one juror, thereby denying his constitutional right to an impartial jury. We disagree.
In Mach, the defendant was charged with sexual conduct with a minor. (Mach, supra, 137 F.3d at p. 631.) During voir dire, a prospective juror stated that she was a child protective social worker who had worked with children for several years. (Id. at pp. 631-632.) In front of the jury panel, she stated four separate times that she had never been involved in a case where the child had lied about being sexually assaulted. (Id. at p. 632.) The court concluded, "Given the nature of [the jurors] statements, the certainty with which they were delivered, the years of experience that led to them, and the number of times they were repeated, we presume that at least one juror was tainted and entered into jury deliberations with the conviction that children simply never lie about being sexually assaulted." (Id. at p. 633.)
In Paschal, the defendant was charged with passing counterfeit currency. (Paschal, supra, 306 F.2d at p. 398.) A prospective juror, who was a stockholder and director of a bank, stated in front of the jury panel that his bank had received " `[s]ome Paschal money—`[t]his defendants money, about three years previously." (306 F.2d at p. 399, fn. omitted.) The court concluded, "When [a juror] comes forward with the conclusion of guilt based upon some special information or knowledge he has gained, . . . the influence on the minds of the other jurors is inevitable. Such statements appear in the guise of real truth." (Ibid.)
Mach, supra, 137 F.3d 630 and Paschal, supra, 306 F.2d 398 are inapposite. They involved jurors who possessed special expertise, or special knowledge or information, that had a direct bearing on the subject matter of the cases. Here, Mr. L. did not state that he had any special expertise or special knowledge about the case. Rather, upon hearing the charges, Mr. L. reacted with an emotional response. No rational juror would believe that defendant was guilty merely based on an emotional response of one prospective juror made during the first five minutes of jury selection. Here, unlike in Mach and Paschal, there was no danger of Mr. L.s comments appearing under the guise of truth.
Despite the argument made by defendants counsel at oral argument, Mr. L.s statement that "hes guilty, you know," did not suggest that Mr. L. had any knowledge about the case. Rather, the phrase "you know" was merely a colloquial expression.
We conclude that the trial court acted well within its discretion in denying the motion to dismiss the entire jury panel. The cases cited by defendant, which purportedly support his position that he was denied the right to an impartial jury, are inapposite, and do not compel a contrary conclusion. (See, e.g., People v. Chapman (1993) 15 Cal.App.4th 136, 141-142 [reversible error where trial court informed jury of defendants prior felony conviction without providing opportunity for voir dire regarding prospective jurors ability to be fair and impartial]; Norris v. Risley (9th Cir. 1990) 918 F.2d 828, 832-834 [defendant facing kidnapping and rape charges denied fair trial where women spectators wore buttons inscribed with the words "Woman Against Rape" at trial]; Delgado v. Rice (C.D. Cal. 1999) 67 F.Supp.2d 1148, 1153, 1159-1161 [trial court committed reversible error by having ex parte communication with jury regarding admissibility of prior bad acts evidence].)
To the extent defendant relies on cases discussing implied bias, this reliance is misplaced, as Mr. L.s bias was not concealed, but quite apparent from his emotional response. (See In re Hitchings (1993) 6 Cal.4th 97, 110-111; Tinsley v. Borg (9th Cir. 1990) 895 F.2d 520, 523-524; United States v. Allsup (9th Cir. 1977) 566 F.2d 68, 71-72.)
C. Admitting Evidence of Defendants Bad Acts and Instructing the Jury with CALJIC No. 2.50.01 Did Not Deprive Defendant of Due Process
Defendant claims that evidence of his other bad acts was inadmissible. He argues its admission violated his right to due process, that the instruction on the use of such evidence was flawed, and that it likewise violated due process. Again, we disagree.
1. Background
Pursuant to Evidence Code sections 1108 and 1101, subdivision (b), the prosecution moved in limine to admit testimony that defendant had "annoyed, molested, attempted to molest and exposed himself to other victims." The prosecution argued that the proffered testimony was relevant to the charged offenses as it related to defendants "attempts to entice other boys after he had sufficiently groomed them." The prosecution referred to several instances that it characterized as unsuccessful attempts to molest additional victims, including the following: (1) defendant brushed his hand through M.L.s hair and placed his hand on M.L.s knee, as M.L. sat on defendants couch; (2) defendant told C.L. that he wanted to have sex with him; (3) on a separate occasion, defendant gave C.L. marijuana and then asked him and another boy (J.D.) if they wanted " `to go upstairs . . . to do stuff "; (4) after watching a movie with M.C. and J.T., defendant offered to take the boys " `upstairs " and make them " `not tired "; (5) defendant told M.C. that he could use defendants bedroom if he wanted to have sex with a girl; (6) after watching a pornographic movie with J.T. and other boys, defendant told the boys he was " `horny " and that they could go upstairs and use " `lube " if they wanted; and (7) when J.T. spent the night at defendants apartment, defendant exposed his naked body to J.T. after defendant got out of the shower.
Defendant moved to exclude the proffered testimony, as well as additional testimony regarding other instances, including the following: (1) when defendant approached T.M. in the park, T.M. " `freaked out "; (2) defendant asked A.W. about obtaining marijuana; (3) defendant offered S.B. and T.M. tequila and asked if they wanted to go back to his apartment; and (4) defendant played the "tickle" or "nervous" game with J.T.
At the hearing on the in limine motions, the trial court ruled that the proffered testimony was admissible, explaining: "The Evidence Code allows this type of evidence to be permitted and allowed for a jury to hear, a court to hear for the purpose of proving intent or plan. [Identification] is not an issue in this case. It appears that whats being offered here would be relevant for the purpose of showing the similarity perhaps or the intent of a plan . . . ." The court further explained that the proffered testimony about the other incidents was "certainly" less prejudicial and less inflammatory than the charged offenses. The trial court also considered that the other incidents had occurred in a "very recent" time frame. Although the trial court determined that A.W.s testimony about getting marijuana for defendant was not admissible under Evidence Code section 1108, it nonetheless ruled that the evidence was admissible for impeachment purposes.
2. Evidence Code sections 1101 and 1108
Defendant claims that neither Evidence Code section 1108 nor section 1101 authorized the admission of the challenged incidents. Preliminarily, we agree with the People that defendant failed to object to several of the incidents. Notwithstanding this waiver, and to forestall the ineffective assistance of counsel claim, we address the merits and conclude that the admission of defendants other " `bad " acts was not erroneous.
a. Relevance to Prove Intent and Common Plan
Evidence Code section 1101, subdivision (a) establishes a general rule that character evidence is inadmissible to prove a defendants conduct on a specific occasion. However, Evidence Code section 1101, subdivision (b) provides an exception for evidence that a defendant has committed a crime, civil wrong, or some other "bad act" when offered to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . ." (Italics added.) The uncharged acts here were admissible pursuant to Evidence Code section 1101, subdivision (b) to prove intent and common scheme or plan. Defendant was charged with four counts of violating section 288, subdivision (a), which provides in part: "Any person who willfully and lewdly commits any lewd or lascivious act . . . upon . . . a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . ." (Italics added.)
By pleading not guilty, defendant placed his intent at issue. (People v. Memro (1995) 11 Cal.4th 786, 864-865; see also People v. Balcom (1994) 7 Cal.4th 414, 422-423; People v. Robbins (1988) 45 Cal.3d 867, 873, 879, overruled on other grounds in People v. Jennings (1991) 53 Cal.3d 334, 387, fn. 13.) While not all of defendants prior acts were sexually explicit in the abstract, his offering and/or providing alcohol and marijuana to boys, combined with the sexual innuendos and pornography, yielded evidence from which the jury could infer that he had a sexual attraction to boys and sought to "groom" them into accepting sexual conduct. This evidence was admissible as it was probative of defendants lewd intent—that he intended to arouse, appeal to, or gratify either his or the victims lust, passions, or sexual desires.
Defendant argues that the similarity between the prior acts and the charged offenses was not great enough to warrant admission because none of the charged offenses involved alcohol, marijuana, or pornography. We are not persuaded. First, contrary to defendants assertion, C. Doe testified that he, N. Doe, and L. Doe had been watching a pornographic movie just prior to the incident in defendants bedroom. Second, "[t]he least degree of similarity between the crimes is needed to prove intent. (People v. Ewoldt (1994) 7 Cal.4th 380, 402 [(Ewoldt)].) . . . [T]he doctrine of chances teaches that the more often one does something, the more likely that something was intended . . . ." (People v. Steele (2002) 27 Cal.4th 1230, 1244.) Specifically, the more often he offered boys drugs and alcohol in a sexually charged atmosphere, the more reasonable inference that a subsequent touching was with the intent of "arousing, appealing to, or gratifying the lust, passions, or sexual desires" (§ 288, subd. (a)) of defendant or the victims.
Evidence of defendants prior misconduct is also relevant to demonstrate a common plan or design. "[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.] `[T]he difference between requiring similarity, for acts negativing innocent intent, and requiring common features indicating common design, for acts showing design, is a difference of degree rather than of kind; for to be similar involves having common features, and to have common features is merely to have a high degree of similarity. [Citations.] [¶] To establish the existence of a common design or plan, 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." (Ewoldt, supra, 7 Cal.4th at pp. 402-403.)
In the present case, the victims of both the uncharged conduct and the charged offenses were boys in defendants neighborhood, who had been given and/or offered alcohol and marijuana in a sexually charged atmosphere replete with pornography and sexual innuendo. Although the charged offenses did not directly involve alcohol, marijuana, or pornography, the similarity between circumstances surrounding the prior acts and the charged offenses supports the inference that defendants conduct was a prologue to and a desire for further sexual contact with boys, and that he committed the charged offenses pursuant to the same design or plan used to commit the uncharged conduct.
Although C. Doe testified that he, N. Doe, and L. Doe had been watching a pornographic movie just prior to the incident in defendants bedroom, the record reflects that pornography was not utilized during the incident.
b. Relevance to Prove Predisposition in a Sexual Offense
The evidence complained of by defendant was also, at least in part, admissible pursuant to Evidence Code section 1108. In a prosecution for a sexual offense, Evidence Code section 1108 permits evidence of the commission of another sexual offense provided that it is not inadmissible under Evidence Code section 352. "By reason of section 1108, trial courts may no longer deem `propensity evidence unduly prejudicial per se, but 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 defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (People v. Falsetta (1999) 21 Cal.4th 903, 916-917 (Falsetta).) We will not disturb a trial courts exercise of discretion under Evidence Code section 352 unless it is shown that the trial court exercised it " `in an arbitrary, capricious or patently absurd manner. " (People v. Frye, supra, 18 Cal.4th 894 at p. 948; accord, People v. Sanders (1995) 11 Cal.4th 475, 512.)
Defendant contends that evidence he gave alcohol and marijuana to minors and provided them with pornography was inadmissible under Falsetta, supra, 21 Cal.4th 903, because these incidents do not constitute "sex crime[s]." He maintains that "[m]ost of the alleged acts were simply prior `bad acts not admissible" under Evidence Code section 1101, subdivision (a). We disagree. First, as discussed (see pt. III.C.2.a., ante), this evidence is admissible pursuant to Evidence Code section 1101, subdivision (b). Second, defendant glosses over the fact that testimony was introduced that he engaged in the following conduct: (1) defendant touched M.L.s hair and leg; (2) defendant asked C.L. if he wanted to have sex with him; (3) defendant, on a separate occasion, asked C.L. if he wanted to go upstairs to do "stuff"; (4) after watching a movie with M.C. and J.T. defendant told M.C. that he could make him "not tired"; (5) defendant told M.C. that he could use defendants bedroom to have sex with a girl; (6) after watching a pornographic movie with J.T. and other boys, defendant told the boys they could go upstairs and use the " `lube if they wanted"; and (7) defendant exposed himself to J.T. Contrary to defendants assertion, this evidence is admissible under Falsetta, supra, 21 Cal.4th 903, as it pertains to other instances of lewd conduct or attempts to engage in lewd conduct (§ 288, subd. (a)), as well as acts (and/or attempts) of annoying a minor (§ 647.6), and indecent exposure (§ 314), which provided a reasonable basis for the jury to infer that defendant had a disposition or propensity to commit sex crimes.
Defendant claims that, even if the other acts were sex crimes, they were, nevertheless, inadmissible under Falsetta, supra, 21 Cal.4th 903, because the proffered acts were not similar to the charged offenses. While we agree that there are some obvious differences between the prior incidents and the charged offenses, Evidence Code section 1108 contains no predicate requirement that there be an unusually high degree of similarity. (See People v. Soto (1998) 64 Cal.App.4th 966, 984.) Clearly, "[t]he charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose." (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41; see also People v. Mullins (2004) 119 Cal.App.4th 648, 659.) Indeed, Frazier concludes that "[i]t is enough the charged and uncharged offenses are sex offenses as defined in [Evidence Code] section 1108." (Frazier, supra, at pp. 40-41.) Thus, evidence can be presented to permit a reasonable inference that "the defendant has a disposition to commit sex crimes from evidence the defendant has committed other sex offenses." (People v. Reliford (2003) 29 Cal.4th 1007, 1012 (Reliford).)
The Supreme Court in Reliford specifically left open the issue of "whether the uncharged sex acts must be similar to the charged offenses in order to support the inference." (Reliford, supra, 29 Cal.4th at p. 1012, fn. 1.) While we do not necessarily concur with the conclusion in Frazier, supra, 89 Cal.App.4th 30 that no similarity is required beyond the uncharged acts qualifying as sex crimes under Evidence Code section 1108, similarity is still an issue to be considered by the trial court in determining the admissibility of the uncharged acts under Evidence Code section 1108. Similarity would, in any event, be a factor in determining the probative value of the evidence to be balanced against the risk of undue prejudice under Evidence Code section 352.
Defendant further insists that the evidence of his unadjudicated prior conduct was not admissible under Falsetta because there was a danger that the jury would be inclined to punish him for the other offenses. (Falsetta, supra, 21 Cal.4th at pp. 916-917.) Although Falsetta instructs that a defendant may be prejudiced when an unadjudicated offense is admitted, our Supreme Court has not directly addressed the question whether such evidence would be inadmissible pursuant to Evidence Code section 1108 (c.f.Ewoldt, supra, 7 Cal.4th at pp. 402-404 [admitting unadjudicated prior child molestations under Evidence Code § 1101, subd. (b)].) In any event, whether the prior conduct resulted in a conviction is not the sole factor in determining whether admission of the evidence would result in undue prejudice. (Falsetta, supra, 21 Cal.4th at pp. 916-917.) In sum, defendant has failed to present a compelling basis for concluding that evidence of his other sex crimes was inadmissible under Evidence Code section 1108.
c. Prejudice
Evidence Code section 352 gives the trial court the discretion to exclude evidence that is otherwise admissible if the court determines that the probative value of the evidence 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." (Evid. Code, § 352.) We review a trial ruling to admit or exclude evidence under Evidence Code section 352 for abuse of discretion. (People v. Harris (1998) 60 Cal.App.4th 727, 736-737 (Harris).) We will reverse only if " `the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.] [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
In Ewoldt, our Supreme Court discussed a number of factors that should be considered pursuant to Evidence Code section 352 in making a judgment about admissibility of evidence of uncharged offenses, where introduction is sought under Evidence Code section 1101, subdivision (b). (Ewoldt, supra, 7 Cal.4th at pp. 404-406.) In Harris, an appellate court applied the same criteria to admission of evidence proffered under section 1108. (Harris, supra, 60 Cal.App.4th at pp. 737-741.) As articulated by the Harris court, the probative value of the evidence must be balanced against four factors: (1) the inflammatory nature of the uncharged conduct; (2) the probability of confusion of issues; (3) remoteness in time of the uncharged offenses; and (4) the amount of time involved in introducing and refuting the evidence of uncharged offenses. (Ibid.)
Defendant argues that the trial court abrogated its duty to undertake an analysis under Evidence Code section 352: "The trial court seemed to merge the questions of admissibility under [Evidence Code] sections 1101(b) and 352 . . . . [¶] . . . [¶] . . . [and] failed to engage in the `careful weighing process required under [Evidence Code] section 352 . . . ." This contention is without merit. The record established that the colloquy regarding the admission of the minors testimony addressed many of the factors relevant to an Evidence Code section 352 decision. Further, in announcing its ruling, the court stated that it was required to consider "the prejudicial effect under Evidence Code section 352 . . . ." In addition, in setting out its reasons for determining that the evidence was admissible, the court referenced that the prior incidents were "certainly" less inflammatory than the charged offenses, and they had occurred in a "very recent" time frame. The trial court considered the consumption of time needed to hear the evidence. The court also referred to the balance required between the probative value of the proffered evidence and the prejudice associated with its admission.
It is true that the evidence that defendant offered and/or provided boys with alcohol, marijuana, and pornography, and that he made sexual innuendos and/or advances to boys was damaging to his defense. However, " `[p]rejudice as contemplated by section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponents position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption `"substantially outweigh" the probative value of relevant evidence, a section 352 objection should fail. (People v. Cudjo (1993) 6 Cal.4th 585, 609 . . . .) ` "The `prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, `prejudicial is not synonymous with `damaging. "[Citation.] (People v. Karis (1988) 46 Cal.3d 612, 638 . . . .)" (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1008, italics omitted.)
"The prejudice that section 352 ` "is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." [Citations.] "Rather, the statute uses the word in its etymological sense of `prejudging a person or cause on the basis of extraneous factors. [Citation.]" [Citation.] (People v. Zapien (1993) 4 Cal.4th 929, 958 . . . .) In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." (Vorse v. Sarasy, supra, 53 Cal.App.4th at p. 1009.)
Here, although the testimony from the minor witnesses may have been damaging, its evidentiary value in establishing defendants lewd intent, plan, and/or propensity to commit sex offenses was substantial. (See People v. Memro, supra, 11 Cal.4th 786 at p. 865.) Moreover, the evidence was presented in a relatively straightforward manner and was certainly less inflammatory than the evidence about the charged offenses.
We need not determine whether A.W.s testimony was admissible under Evidence Code sections 1101 and 1108, as it was, nonetheless, admissible to impeach defendants statements to the police that he had not purchased marijuana in several years and had not smoked it for over a year. (See Evid. Code, § 1202.)
The trial court did not abuse its discretion in admitting this evidence.
3. Jury Instructions
Defendant contends that the trial court violated his right to due process by instructing the jury that it could convict him solely on the propensity evidence and by failing to instruct on the use of the other " `bad " act evidence.
a. CALJIC No. 2.50.01
According to defendant, CALJIC No. 2.50.01 impermissibly invited the jury to convict him based on evidence of uncharged sex crimes and the inference that he had a propensity to commit such crimes. The jury was instructed with the following version of CALJIC No. 2.50.01: "Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense on one or more occasions other than that charged in the case. [¶] `Sexual offense means a crime under the laws of a state or of the United States that involves any of the following: [¶] A. Any conduct made criminal by Penal Code sections 314 and 647.6. The elements of these crimes are set forth elsewhere in these instructions. [¶] If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant has a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crimes of which he is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime. [¶] Unless you are otherwise instructed, you must not consider this evidence for any other purpose."
Relying on People v. Vichroy (1999) 76 Cal.App.4th 92 (Vichroy), defendant argues that CALJIC No. 2.50.01 did not adequately restrain the use of propensity evidence so as to ensure that the jury knew of its obligation to find that there was proof beyond a reasonable doubt of each element of the charged offenses and that a conviction could not rest solely upon proof of propensity arising out of prior crimes. Specifically, he argues that the instruction failed to indicate that if the jury determined by a preponderance of evidence that the defendant committed other sexual offenses and if it inferred from those prior offenses that the defendant has a disposition to commit other sexual offenses, neither the prior offenses nor the inference of disposition arising from such offenses would be sufficient by themselves to prove beyond a reasonable doubt that the defendant committed the charged offenses.
Contrary to defendants contention, the instruction does not expressly permit a conviction to be based on propensity evidence, and he waived the issue of whether the instruction should have been modified to expressly prohibit such a finding since he failed to request amplification of the otherwise correct instruction. (See People v. Palmer (2005) 133 Cal.App.4th 1141,1156.) We, nonetheless, consider this issue and conclude that it fails on the merits.
Vichroy, the case upon which defendant principally relies, held that a former version of CALJIC No. 2.50.01 violated due process even when the jury was instructed to determine beyond a reasonable doubt whether the defendant committed prior offenses because it improperly permitted the jury to base a conviction solely on propensity evidence. (Vichroy, supra, 76 Cal.App.4th at pp. 99-101.) There, the court observed, "We do not believe proof beyond a reasonable doubt of a basic fact, that appellant committed prior sexual offenses, may act as a proxy or substitute for proof of the ultimate fact, i.e., appellants guilt of the currently charged offenses. The constitutional infirmity arises in this case because the jurors were instructed that they could convict appellant of the current charges based solely upon their determination that he had committed prior sexual offenses. CALJIC No. 2.50.01, as given, required no proof at all of the current charges." (Vichroy, supra, 76 Cal.App.4th at p. 99.)
CALJIC No. 2.50.01 was revised in 1999. (People v. Hill (2001) 86 Cal.App.4th 273, 276.) Here, unlike in Vichroy, supra, 76 Cal.App.4th, 92, the jury was instructed with the revised version of CALJIC No. 2.50.01, which contained language expressly stating that a finding that defendant had committed the uncharged prior offenses "is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged offenses."
Similarly, People v. James (2000) 81 Cal.App.4th 1343 (James), another case upon which defendant relies, held that a former version of CALJIC No. 2.50.02, a parallel instruction regarding prior acts of domestic violence, violated due process because it improperly permitted the jury to base a conviction solely on propensity evidence. (James, supra, 81 Cal.App.4th at p. 1346.) There, the court observed, "The jury must be reminded that propensity evidence alone cannot meet the prosecutions burden of proving the elements of the charged offense. Otherwise, the jury is prompted to use evidence of prior offenses in precisely the wrong way, as a substitute for proof of the current offense. [Citation.]" (Id. at p. 1353.) Here, unlike in James, the jury was instructed with the 2005 revised instruction, which contained language expressly stating that a finding that defendant had committed the uncharged prior offenses "is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged offenses." This is precisely the sort of admonition that the James court found lacking in the pre-1999 version of CALJIC 2.50.02. (See People v. Escobar (2000) 82 Cal.App.4th 1085, 1101 (Escobar).)
In James, the court specifically noted that the 1999 revisions of CALJIC No. 2.50.01 had been implicitly approved by the Supreme Court in Falsetta, supra, 21 Cal.4th at pages 923-924, and by another division of this court in People v. Brown (2000) 77 Cal.App.4th 1324, 1336 [approving 1999 revision of CALJIC No. 2.50.02]. (James, supra, 81 Cal.App.4th at p. 1357, fn. 8.) Similarly, in Escobar, this court noted that Falsetta, although voicing concerns similar to those raised in James, "expressed confidence that the 1999 amendments to those instructions have eliminated that flaw and will `assure that the defendant will be tried and convicted for his present, not his past offenses. [Citation.]" (Escobar, supra, 82 Cal.App.4th at p. 1101.)
Nevertheless, defendant maintains that CALJIC No. 2.50.01 was defective in implying that if the jury was convinced, not merely by a preponderance of the evidence but beyond a reasonable doubt, that he committed a prior sexual offense, then it could use that finding as the basis for convicting him of the charged offenses. In Reliford, supra, 29 Cal.4th 1007, our Supreme Court rejected this precise argument and confirmed the constitutionality of the 1999 revision of CALJIC 2.50.01. (Reliford, supra, at pp. 1009, 1015.) As in this case, the defendant argued that the instruction "`implies by way of a negative pregnant that prior sex offenses proved beyond a reasonable doubt are indeed sufficient to prove the present offense beyond a reasonable doubt. " (Id. at p. 1015.) The Supreme Court held that "no juror could reasonably interpret the instructions [as a whole] to authorize conviction of a charged offense based solely on proof of an uncharged sexual offense." (Ibid.)
Here, the jury was instructed not to single out any particular sentence or point in the instructions but to consider all instructions as a whole and in light of the others (CALJIC No. 1.01). Other instructions reminded the jury that it had to find proof beyond a reasonable doubt that defendant committed the charged offense (CALJIC No. 2.90), and that "each fact which is essential to complete a set of circumstances necessary to establish the defendants guilt must be proved beyond a reasonable doubt" (CALJIC No. 2.01).
Defendant contends that CALJIC No. 2.50.01 created confusion because it conflicts with the reasonable doubt standard. Rejecting a claim that CALJIC 2.50.01 was too complicated for jurors to apply, the Supreme Court in Reliford explained, "This is not the first time jurors have been asked to apply a different standard of proof to a predicate fact or finding in a criminal trial. [Citations.] As we do in each of those circumstances, we will presume here that jurors can grasp their duty—as stated in the instructions—to apply the preponderance-of-the-evidence standard to the preliminary fact identified in the instruction and to apply the reasonable-doubt standard for all other determinations." (Reliford, supra, 29 Cal.4th at p. 1016.)
So too here, we presume that the jury was able to differentiate between the reasonable doubt standard and CALJIC No. 2.50.01, and to apply the different standards of proof articulated therein. Viewing CALJIC No. 2.50.01 in the context of the entire body of instructions delivered to the jury, we do not believe that any reasonable juror would have interpreted the instructions as permitting a conviction based on the evidence of the uncharged sexual offenses alone.
Finally, in light of the strength of the evidence against defendant, we are convinced beyond any reasonable doubt that the jury did not draw an improper inference of guilt solely from the propensity evidence. (Escobar, supra, 82 Cal.App.4th at p. 1102.)
b. Failure to Instruct on Other "Bad Acts"
Defendant contends the trial court erred in failing to instruct the jury, sua sponte, on the limited purposes for which it could consider the evidence of his "other bad acts."
Trial courts generally have no duty to instruct on the limited admissibility of evidence in the absence of a request. (People v. Collie (1981) 30 Cal.3d 43, 63; see also People v. Lang (1989) 49 Cal.3d 991, 1020; People v. Milner (1988) 45 Cal.3d 227, 251-252.) In the context of limiting instructions concerning evidence of other crimes, our Supreme Court has "recognized a narrow exception to the general rule not requiring sua sponte instruction: an objection may not be required in the `occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose. [Citations.]" (People v. Rogers (2006) 39 Cal.4th 826, 854.) Defendant contends this narrow exception applies in the instant case. We disagree. The evidence that defendant provided and/or offered to provide alcohol and marijuana to the boys, and that he showed the boys pornography and made sexual innuendos, was not a "dominant part" of the evidence concerning counts one through four. Although this evidence was undeniably damaging, it was neither highly prejudicial nor minimally relevant. Defendants instructional claim thus fails.
D. Other Evidentiary Issues
1. Gun Evidence
Defendant contends that the trial court prejudicially erred in admitting evidence of a gun seized from his bedroom. We disagree.
a. Background
C. Doe testified defendant had a black pistol, which defendant showed him. C. Doe did not remember what defendant said when he showed him the gun. However, he remembered that defendant kept the gun in a side table on the left side of his bed. C. Doe was not sure when he saw defendants gun, but he explained that the gun scared him. C. Doe said, "I was afraid that if we told anyone he had ammo and that maybe he could shoot us . . . . Guns are kinda scary." C. Doe testified that defendant never threatened him with the gun or used it in an inappropriate manner. C. Doe further explained that after the incident in defendants bedroom, he was afraid of defendant because of the gun.
L. Doe said that he found a gun in a drawer in a nightstand in defendants bedroom. Defendant did not show the gun to L. Doe. L. Doe showed the gun to N. Doe. N. Doe said that L. Doe had shown him defendants gun. Defendant was not in the room when L. Doe showed N. Doe the gun.
b. Analysis
"Evidence of possession of a weapon not used in the crime charged against a defendant leads logically only to an inference that defendant is the kind of person who surrounds himself with deadly weapons—a fact of no relevant consequence to determination of the guilt or innocence of the defendant." (People v. Henderson (1976) 58 Cal.App.3d 349, 360, italics omitted; accord, People v. Archer (2000) 82 Cal.App.4th 1380, 1392-1393; seePeople v. Riser (1956) 47 Cal.2d 566, 577 overruled on other grounds in People v. Chapman (1959) 52 Cal.2d 95, 98 and People v. Morse (1964) 60 Cal.2d 631, 637, fn. 2, 648-649.)
Here, it is undisputed that the gun was not used in the commission of the charged offenses. However, the evidence that defendant possessed a gun was relevant to corroborate C. Does testimony that he was afraid of defendant. Specifically, C. Doe testified that defendant showed him the gun and that he was afraid of defendant because defendant had a gun. The gun evidence also corroborated the testimony that the minors had been in defendants bedroom, a fact that defendant initially denied.
But even if we conclude that the court erred in admitting evidence relating to the handgun, the error was harmless under any standard of review. (See People v. Scheid (1997) 16 Cal.4th 1, 21; Chapman, supra, 386 U.S. at p. 24.) The testimony about the gun was brief, and was presented in a relatively straightforward manner. Moreover, the evidence pertaining to defendants gun possession was not highly inflammatory and was certainly no more prejudicial than details of the underlying offenses. Given the eyewitness accounts of the charged offenses, as well as the ample evidence that defendant supplied the victims with alcohol, marijuana, and pornography, it is not reasonably probable that appellant would have obtained a more favorable result if the trial court had excluded evidence of the gun.
Finally, contrary to defendants contention, the trial court did not deprive defendant of his due process rights under the Fifth Amendment of the federal Constitution in admitting this evidence. (People v. Samuels (2005) 36 Cal.4th 96, 114 [violations of state evidentiary rules generally do not constitute federal constitutional error].)
2. Preclusion of Good Character Evidence
Defendant contends that the trial court "significantly hobbled" the presentation of defense evidence in ruling that the People could present evidence that he had engaged in a homosexual relationship, if the defense presented evidence of defendants good character and family relationships.
a. Background
After his arrest, defendant gave a statement to police, denying any sexual misconduct with victims. However, defendant admitted that when he was a teenager, he had a consensual, homosexual relationship with a similarly-aged teenage boy. Defendant moved in limine to exclude this evidence. In opposing the motion, the People argued that defendant had told the police that he had visited Internet websites looking to meet both men and women. Specifically, when asked what he was looking for, defendant said, "heterosexual, homosexual, everything." The People further noted that defendants motion referenced the fact that defendant had been mourning the death of his wife and that he sought companionship from the boys. The People added that this "gives a bit of misimpression to the jury" that defendant is "a normal heterosexual male when clearly hes not."
The trial court conditionally granted the defendants motion, ruling as follows: "Im going to exclude any testimony as to any tendencies toward homosexuality, the fact that they exist. But if the door is opened by the [d]efense and issues are raised in regards to being married and along that line, then certainly the [p]rosecution may pursue that." Defendant contends that this ruling prevented him from presenting evidence of his "good character and family relationship."
b. Analysis
In support of this claim of error, defendant argues at length about the prejudicial effect of evidence pertaining to homosexuality. However, this argument misses the mark, as evidence pertaining to defendants homosexuality and/or bisexuality was never placed before the jury.
To the extent defendant contends that the trial courts ruling prevented him from presenting evidence from his father and two brothers, the record belies this claim of error. Defendant argues that these witnesses would have testified about his solid upbringing, as well as his involvement with the Cub Scouts, Little League, and a youth swim team. As this evidence has nothing to do with sexual orientation, it is highly unlikely that it would have opened the door to evidence pertaining to defendants homosexuality. Moreover, defendant never even attempted to present this evidence at trial. Rather, this evidence was presented to the court in defendants sentencing motion. " `[U]ntil the evidence is actually offered, and the court is aware of its relevance in context . . . the court cannot intelligently rule on admissibility. [Citation.]" (People v. Morris (1991) 53 Cal.3d 152, 189-190, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) Under these circumstances, defendants complaint of prejudice is pure speculation.
Additionally, contrary to defendants contention, the record reflects that defendant did present evidence of good character, and the jury was instructed how to consider evidence of defendants good character. The trial court did not abuse its discretion in conditionally granting defendants motion in limine.
E. Substantial Evidence Supports the Conviction in Counts Two and Four; No Instructional Error
Defendant contends insufficient evidence supports counts two and four. He further claims the trial court erred in failing to instruct the jury sua sponte with a clarifying instruction regarding the elements of section 288, subdivision (a). We reject these contentions.
1. Sufficiency of the Evidence
"In determining whether there is sufficient evidence to find a defendant guilty of violating section 288, subdivision (a), `[w]e review the whole record most favorably to the judgment to determine whether there is substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof. [Citations.] The trier of fact, not the appellate court, must be convinced of the defendants guilt, and if the circumstances and reasonable inferences justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.] [Citation.]" (In re Randy S. (1999) 76 Cal.App.4th 400, 404.)
Defendant argues that there is insufficient evidence to support counts two and four because there is no evidence that he touched N. Doe (count four) or L. Doe (count two) during the incident in his bedroom. Under section 288, subdivision (a), "[a]ny person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . ." By its terms, this statute is violated when a person touches a child with the requisite intent. (People v. Scott (1994) 9 Cal.4th 331, 342-343.) A "touching" for purposes of proving a lewd and lascivious act is broadly construed. (People v. Martinez (1995) 11 Cal.4th 434, 444.) " `In all cases arising under this statute the purpose of the perpetrator in touching the child is the controlling factor and each case is to be examined in the light of the intent with which the act was done. " (People v. Austin (1980) 111 Cal.App.3d 110, 115 (Austin ).) Courts have recognized the touching element of this statute may be satisfied by a child touching himself or herself at the defendants direction. (Austin, supra, 111 Cal.App.3d at pp. 114-116; People v. Meacham (1984) 152 Cal.App.3d 142, 152-153 (Meacham), abrogated on another ground in People v. Brown (1994) 8 Cal.4th 746, 748, 756-757.)
Preliminarily, contrary to defendants assertion, there is evidence that he actually touched L. Doe. Both C. Doe and N. Doe testified that defendant helped L. Doe pull down his pants. In any event, L. Doe testified that he and the other boys pulled down their pants because they were afraid of defendant. L. Doe further testified that defendant was not asking the boys to pull down their pants, but was forcing them to disrobe. Similarly, N. Doe testified that he pulled down his pants and underwear because defendant "persuaded" him to do so. At a minimum, both L. Doe and N. Doe would have touched their own bodies while undressing. This touching would constitute a lewd act. "[A]ctual or constructive disrobing of a child by the accused . . . is presumptively harmful and prohibited by section 288(a)." (People v. Mickle (1991) 54 Cal.3d 140, 176.)
Defendant acknowledges the constructive touching doctrine, but argues that it has not been widely accepted and is contrary to section 288, subdivision (a). The issue of whether a defendant could be convicted for violating section 288 without actually having touched the child arose first in Austin, supra, 111 Cal.App.3d 110. There, the defendant, with an open knife in his hand, ordered the child to pull down her pants to expose herself and then gave her a dollar after she complied. (Id. at pp. 112, 114.) The court noted, "by coercion of an exposed knife coupled with enticement of a monetary reward the minor was caused to physically touch her own person." (Id. at p. 114.) Relying on the common law rule of agency, the court stated, "a person who causes . . . an innocent child to do the touching is a principal . . . . [Citation.]" (Ibid.) Thus, the court concluded the defendant "was responsible for the touching and removal of the childs pants as surely as if he had done it himself." (Id. at p. 115.)
In Meacham, supra, 152 Cal.App.3d 142, the court adopted the holding in Austin, supra, 111 Cal.App.3d 110, but applied a different rationale. "We hold the childrens touching of their own genitalia at the instigation of appellant was a `constructive touching by appellant himself." (Meacham, supra, at p. 153.) The court derived the " `constructive touching " theory from the analogous theory of " `constructive breaking by which an essential element of common law burglary is supplied . . . . `[U]nder certain circumstances the opening of a door by the owner or his servant, having been occasioned by the criminal plan or scheme of the wrongdoer, "is as much imputable to him as if it had been actually done by his own hands," and is deemed a constructive breaking. [Citations.]" (Id. at p. 154.) We find this to be an apt analogy to lewd and lascivious acts committed upon a child by himself or herself at the defendants direction.
Although our Supreme Court has not directly addressed the issue, it has recognized without a hint of disapproval that the constructive touching doctrine is one of the theories under which a person may be found guilty of violating section 288. (See People v. Martinez, supra, 11 Cal.4th at p. 445; People v. Scott, supra, Cal.4th 331, 343; People v. Mickle, supra, 54 Cal.3d at p. 176.) In Martinez, the Supreme Court noted "courts have long indicated that section 288 prohibits all forms of sexually motivated contact with an underage child. Indeed, the `gist of the offense has always been the defendants intent to sexually exploit a child, not the nature of the offending act. [Citation.]" (Martinez, supra, 11 Cal.4th at p. 444, italics omitted.) Thus, the court explained, while the statute requires that the victim must be touched and the touching must be accompanied by an intent to sexually gratify either the perpetrator or the victim, "the form, manner, or nature of the offending act is not otherwise restricted." (Ibid.)
We do not find the constructive touching doctrine to be inconsistent with the actual text of section 288. As the court pointed out in Martinez, the statute has been amended on numerous occasions, yet "the basic elements of the offense have remained the same . . . . The Legislature has never expressed dissatisfaction with this approach or otherwise attempted to restrict the acts that can be found `lewd or lascivious under the statute . . . . [W]e can only assume that the Legislature is aware of the manner in which the offense has been judicially construed and that it has refrained from modifying the substantive terms because it accepts the prevailing view." (People v. Martinez, supra, 11 Cal.4th at pp. 445-446.)
Defendant maintains that even if Austin, supra, 111 Cal.App.3d 110 and the constructive touching doctrine should be followed, it does not apply here because he did not threaten or coerce L. Doe and N. Doe into removing their pants. We disagree. L. Doe testified he was afraid that defendant might hurt him if he did not pull down his pants. He further testified that it did not seem like the boys had any choice about removing their pants. Similarly, N. Doe testified that he pulled down his pants and underwear because defendant "persuaded" him to do so. This coercion was just as effective as if defendant had pulled down N. Does and L. Does pants himself. (Austin, supra, 111 Cal.App.3d at p. 115; Meacham, supra, 152 Cal.App.3d at p. 151.)
Defendant argues that Austin is distinguishable because there a knife was used to coerce the child to disrobe. This distinction fails for two reasons. First, nothing in Austin can be read as requiring a weapon be used in order for a touching to be established. The court, using an agency theory, concluded that the touching necessary to violate section 288 "[m]ay [b]e [d]one by the [c]hild . . . on [his or her] [o]wn [p]erson [p]roviding [s]uch [t]ouching [w]as at the [i]nstigation of a [p]erson [w]ho [h]ad the [r]equired [s]pecific [i]ntent." (Austin, supra, 111 Cal.App.3d at p. 114, italics added.) The court further described instances where a defendants conduct "cause[d]" a child to do the touching as being violative of section 288. We do not share defendants view that Austin requires that a threat of violence is required in order to find a touching within the meaning of section 288, subdivision (a).
Second, we note that "[t]here are many situations where one is compelled, i.e., forced, to do something against ones will but the compulsion does not involve personal violence or threats of personal violence." (People v. Grant (1992) 8 Cal.App.4th 1105, 1112-1113 [holding no requirement that unlawful restraint element of sexual battery (§ 243.3, subd. (a)) involve force or threat of force with physical violence].) Here, defendant did not use physical force or threats of violence in order to get N. Doe and L. Doe to remove their pants. Instead, he exerted psychological coercion, as a trusted adult in an isolated setting, by instructing the boys to remove their pants and telling them that it was okay to do so because they "were all guys."
Section 288 was enacted to provide children with special protection from this type of sexual exploitation. (People v. Martinez, supra, 11 Cal.4th at pp. 443-444.) "The statute recognizes that children are `uniquely susceptible to such abuse as a result of their dependence upon adults, smaller size, and relative naiveté." (Id. at p. 444.) Further, as Austin acknowledges, "[s]ignificant harm may occur to a child who is caused to engage in or submit to the lustful intendments of a person seeking sexual self-gratification." (Austin, supra, 111 Cal.App.3d at pp. 114-115.)
Having concluded the constructive touching doctrine is a valid theory as a matter of law, we further conclude there was ample evidence to support defendants conviction pursuant to that theory as to counts two and four. Defendant invited the boys upstairs to show them how to use a sexual lubricant. N. Doe and L. Doe removed their clothing at defendants instigation. Both the elements of touching and intent of sexual gratification were met by this evidence.
2. Instruction Regarding Constructive Touching
In addition to CALJIC No. 10.41 (§ 288, subd. (a)), the trial court, at the request of the prosecution, further instructed the jury with the following: "Where a person compels a child under the age of 14 to remove the childs own clothing, and that person had the specific intent described above, such person may be guilty of a lewd and lascivious act in violation of section 288(a). No touching of the child by the person is required."
Defendant contends the trial court erred in failing to instruct the jury sua sponte on the meaning of " `compels, " and in failing to identify the " `specific intent " and the "particular burden of proof." These contentions are without merit.
It is well established that "[i]f a statutory word or phrase is commonly understood and is not used in a technical sense, the court need not give any sua sponte instruction as to its meaning. If, however, a word or phrase is used in a technical sense differing from its commonly understood meaning, clarifying instructions are appropriate and should be given on the courts own motion." (People v. Rodriguez (2002) 28 Cal.4th 543, 546-547.) Thus, in Rodriguez, our Supreme Court concluded the trial court had no duty to instruct the jury sua sponte on the meaning of the term "recurring access" to a child. (Id. at pp. 546-550; § 288.5.) Similarly, in People v. Smithey (1999) 20 Cal.4th 936, 981, the high court concluded the trial court had no obligation to provide clarification of the meaning of the phrase " `maturely and meaningfully reflected " (§ 189); and in People v. Estrada (1995) 11 Cal.4th 568, 578, it concluded the phrase " `reckless indifference to human life " (§ 190.2, subd. (d)) did not have a technical meaning peculiar to the law and, hence, the trial court did not have a sua sponte duty to further define the statutory phrase for the jury. In People v. Bland (2002) 28 Cal.4th 313, 334-335, on the other hand, the Supreme Court concluded the trial court erred in not defining "proximate causation" because that term had a meaning peculiar to the law, and a jury would have difficulty understanding its meaning without guidance.
We discern no meaning, technical or otherwise, of the term "compel" other than its commonly understood meaning—to cause someone to do something. (See Merriam-Websters Collegiate Dictionary Online, www.merriam-webster.com/dictionary/compel [as of Apr. 14, 2008] [the term "compel" means "to drive or urge forcefully or irresistibly" or "to cause to do or occur by overwhelming pressure"].) Nothing defendant says persuades us that this term is to be understood in anything except its normal sense. Thus, we conclude the trial court did not have a sua sponte duty to explain to the jury the meaning of the term "compels."
Finally, contrary to defendants contention, the jury was given instructions regarding the requisite specific intent for a violation of section 288, subdivision (a), as well as the applicable burden of proof.
F. The Trial Court Properly Instructed the Jury
Preliminarily, we agree with the People that defendant has forfeited these additional claims of misinstruction of the jury by failing to raise them below. We nonetheless address the merits and conclude that each claim of instructional error fails.
1. Instruction Regarding Motive (CALJIC No. 2.51)
The jury was instructed with CALJIC No. 2.51, which provides: "Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty." The trial court also instructed the jury with CALJIC No. 10.41, which describes the elements of lewd conduct crimes under section 288, subdivision (a), and states that "specific intent to arouse, appeal to, or gratify[] the lust, passions, or sexual desires" of the perpetrator or victim is required.
Relying on People v. Maurer (1995) 32 Cal.App.4th 1121, defendant claims CALJIC No. 2.51 conflicts with CALJIC No. 10.41. In Maurer, the defendant was convicted of misdemeanor child annoyance under section 647.6. (Maurer, supra, 32 Cal.App.4th at p. 1125.) CALJIC No. 16.440 instructed the jury that the defendants conduct must have been "motivated by an unnatural or abnormal sexual interest . . . ." (Maurer, supra, 32 Cal.App.4th at p. 1125, italics added.) In the same breath, the trial court instructed jurors with CALJIC No. 2.51, explaining " `[m]otive [was] not an element of the crime charged and need not be shown. " (Id. at p. 1126.) The court held that although motive is generally not an element of a criminal offense, "the offense of section 647.6 is a strange beast," as motive was an element of the crime. (Id. at pp. 1126-1127.) Therefore, finding the jury instructions contradictory, the court reversed the defendants convictions. (Id. at p. 1125.)
The instant case is distinguishable. Contrary to defendants assertion, "sexual motivation" is not synonymous with intent. Rather, motive and intent are separate and distinct concepts. "Motive describes the reason a person chooses to commit a crime. The reason, however, is different from a required mental state such as intent or malice." (People v. Hillhouse (2002) 27 Cal.4th 469, 504.) While section 288, subdivision (a) requires proof of defendants intent, it does not require any showing concerning defendants motive for his actions. (See People v. Cash (2002) 28 Cal.4th 703, 738-739 [CALJIC No. 2.51 not in conflict with instruction on robbery-murder special circumstance, because intent, not motive, is an element of the offense]; Hillhouse, supra, 27 Cal.4th at pp. 503-504 [CALJIC No. 2.51 not in conflict with instruction on various crimes, including murder and robbery, because intent, not motive, is an element of the offenses].) Despite language in cases referring to "sexually motivated" acts, motive is not an element of section 288, subdivision (a). (See Martinez, supra, 11 Cal.4th at p. 452; People v. Scott, supra, 9 Cal.4th 331 at pp. 343-344; People v. Levesque (1995) 35 Cal.App.4th 530, 540, 541.)
Defendant, nevertheless, maintains the motive instruction nullified the specific intent requirement of section 288 set forth in CALJIC No. 10.41. Defendants fears are not well-founded. " `"It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." " (People v. Wilson (1992) 3 Cal.4th 926, 943.) CALJIC No. 2.51 informed the jury that motive was not an element of the crimes charged, but that presence of motive may be considered to prove defendants guilt, just as absence of motive may tend to show defendant is not guilty. The jury was not told motive sufficed, in and of itself, to prove guilt. Rather, the trial court instructed the jury that to find a violation of section 288, subdivision (a), it had to find that defendant committed the touching "with the specific intent to arouse, appeal to, or gratify the lust, passion, or sexual desires of either party." The jury was further instructed that "there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator[]" and that "[u]nless this specific intent exists the crime to which it relates is not committed." In addition to these instructions, the jury was instructed on reasonable doubt and the presumption of innocence. The jury was also told to consider the instructions as a whole. Absent a contrary indication in the record, we assume the jury followed the instructions given by the court. (People v. Adcox (1988) 47 Cal.3d 207, 253.) There was no error.
2. Verbal Instruction to "Accept" the Evidence
In reading CALJIC No. 1.03, the trial court told the jury: "You must decide all the questions of fact in this case from the evidence received in the trial and not from any other source. When evidence has been received, you must accept this." (Italics added.) Defendant argues, at length, that the trial court violated his due process rights by instructing the jury that it had to accept the evidence received at trial. According to defendant, the italicized sentence undermined the jurys right to weigh and measure the evidence and reduced the prosecutions burden of proof. We disagree.
The italicized sentence does not appear in CALJIC No. 1.03, nor in the written instructions given to the jury in this case. It appears that the trial judge added the challenged phrase on her own accord, while reading the instructions to the jury. Such "ad libbing" during the reading of jury instructions, especially in a criminal case, is a dangerous course of action. However, contrary to defendants contention, the italicized sentence did not reduce the jurys task to taking the testimony "received" in court at face value and deciding if the "accepted" evidence showed the crimes occurred. Rather, the phrase was uttered in connection with CALJIC No. 1.03, which admonishes the jury that independent investigations are prohibited. In this context, the trial courts statement reasonably can be interpreted to be a restatement, albeit an imprecise one, of the instruction that the jury is required to decide all of the questions of fact from the evidence at trial and not from any other source.
Moreover, in instructing the jury on the respective duties of the judge and the jury, the trial court told the jury that "you must determine what facts have been proved from the evidence received in the trial court and not from any other source. A `fact is proved by the evidence." (CALJIC No. 1.00.) The trial court further instructed the jury regarding the believability of witnesses (CALJIC No. 2.20), and discrepancies in testimony (CALJIC No. 2.22.1), as well as weighing conflicting testimony (CALJIC No. 2.22). The jury was also instructed to consider the instructions as a whole and in light of all the others (CALJIC No. 1.01). We presume the jury followed these instructions, and did not single out the sentence defendant complains of and ignore the numerous instructions advising the jury about its duty to review and weigh the evidence admitted at trial.
3. Instruction Regarding Impeachment Evidence (CALJIC No. 2.23.1)
The jury was instructed with CALJIC No. 2.23.1, which provides: "Evidence has been introduced for the purpose of showing that a witness . . . engaged in past criminal conduct amounting to a misdemeanor. This evidence may be considered by you only for the purpose of determining the believability of that witness. The fact that the witness engaged in past criminal conduct amounting to a misdemeanor if it is established, does not necessarily destroy or impair a witnesss believability. It is one of the circumstances that you may consider in weighing the testimony of that witness." (Italics added.)
Defendant argues that this instruction unfairly and improperly limited the jurys use of defense evidence in two ways. He claims the instruction limited the bad acts to those that constituted a crime, and the trial court compounded this error when it "only defined the crime of petty theft. [CALJIC No. 16.300.]" Defendant, citing Evidence Code section 780, insists that the instruction did not allow the jury to consider the evidence of crimes and misconduct on the issue of a witnesss bias or motive in testifying.
Evidence code section 780 provides, in part, as follows: "Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing . . . ."
Contrary to defendants assertion, CALJIC No. 2.23.1 was not unduly restrictive and did not run afoul of Evidence Code section 780. The instruction did not tell the jury that they could only consider past criminal conduct amounting to a misdemeanor in assessing the credibility of the witnesses. Rather, the instruction specifically states, "It is one of the circumstances that you may consider in weighing the testimony of that witness." (Italics added.) The jury was further instructed on the believability of witnesses pursuant to CALJIC No. 2.20, which provides, in part, the following: "In determining the believability of a witness you may consider anything that has a tendency to prove or disprove the truthfulness of the witness, including but not limited to any of the following: [¶] . . . [¶] The existence or nonexistence of bias, interest, or other motive; [¶] . . . [¶] Past criminal conduct amounting to a misdemeanor." The instructions, viewed as a whole, did not preclude the jury from considering other criminal conduct or the possibility of bias, interest, or other motive.
4. Cumulative Instructional Error
Defendant contends cumulative instructional error requires reversal. However, inasmuch as we have rejected all of his claims of instructional error, we perforce reject his claim of cumulative error.
G. Alleged Prosecutorial Misconduct
Defendant claims that the prosecutor committed prejudicial misconduct by denigrating the reasonable doubt standard to a mere gut feeling. Defendant acknowledges defense counsel failed to object at trial but asserts his waiver is excused and/or is the product of ineffective assistance of counsel.
1. Background
During closing argument, the prosecutor, after summarizing the charges against defendant, stated the following regarding the trial courts reasonable doubt instructions: "Lets look at the law. Most important, you were told in the beginning I have the burden to prove the case beyond a reasonable doubt. The judge defined to you yesterday what reasonable doubt is. Its not a mere possible doubt because everything relating to human affairs is open to some possible or imaginary doubt. Everything in life is possible. Its a state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in the condition that they cannot say that they feel an abiding conviction of the truth of the charge . . . . [¶] . . . [¶] So reasonable doubt, [it is] not mere possible doubt because everything is possible. Consider all of the evidence in the case. And most importantly use your common sense and decide whats reasonable and whats unreasonable and a lot of that has to do with that feeling in the pit of your stomach or in your gut, hey, I know he did it. I can feel it. I know he did it." Defense counsel did not object to the prosecutors explanation of reasonable doubt or otherwise seek an admonition.
The trial court instructed the jury with CALJIC No. 2.90, which provides: "A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all of the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge."
2. Analysis
"[A]s a general matter a claim of prosecutorial misconduct is preserved for appeal only if the defendant objects in the trial court and requests an admonition, or if an admonition would not have cured the prejudice caused by the prosecutors misconduct." (People v. Ledesma (2006) 39 Cal.4th 641, 730; see People v. Medina (1995) 11 Cal.4th 694, 761.) "A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile." (People v. Hill (1998) 17 Cal.4th 800, 820; see People v. Harrison (2005) 35 Cal.4th 208, 243-244.)
We agree with the People that defendant waived this issue by failing to object to the reasonable doubt argument or to request a curative admonition. (Barnett, supra, 17 Cal.4th at p.1156; People v. Nguyen (1995) 40 Cal.App.4th 28, 35-37 (Nguyen).) Moreover, this is not a case where an objection would have been futile. Defendant could have easily objected and requested the court to reinforce the jurys understanding of the reasonable doubt standard and the prosecutors burden of proof. However, even if defendant had preserved the issue we would not reverse.
In support of his claim of prosecutorial misconduct, defendant relies principally upon three cases: Nguyen, supra, 40 Cal.App.4th 28, People v. Johnson (Danny) (2004) 115 Cal.App.4th 1169 (Johnson (Danny)), and People v. Johnson (Glen) (2004) 119 Cal.App.4th 976 (Johnson (Glen).) In Nguyen, the prosecutor made the following statements to the jury during summation: " `The standard is reasonable doubt. That is the standard in every single criminal case. And the jails and prisons are full, ladies and gentlemen. [¶] Its a very reachable standard that you use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as youre driving. If you have reasonable doubt that youre going to get in a car accident, you dont change lanes. [¶] So its a standard that you apply in your life. Its a very high standard. And read that instruction, too. I wont paraphrase it because its a very difficult instruction, but its not an unattainable standard. Its the standard in every single criminal case. " (Nguyen, supra, 40 Cal.App.4th at p. 35.)
The Nguyen court held that the prosecutors argument was improper and "strongly disapprove[d] of arguments suggesting the reasonable doubt standard is used in daily life to decide such questions as whether to change lanes or marry." (Nguyen, supra, 40 Cal.App.4th at p. 36.) The court further held that the improper argument was harmless because the prosecutor directed the jury to read the reasonable doubt instruction and the jury was correctly instructed on the standard. (Id. at pp. 36-37.) For the same reasons, the failure of defense counsel to object to the prosecutors statements did not constitute ineffective assistance of counsel. (Id. at p. 37.)
In Johnson (Danny), "the trial court amplified on the concept of reasonable doubt as follows: `The burden is proof beyond a reasonable doubt. A doubt that has reason to it, not a ridiculous doubt, not a mere possible doubt. Because we all have a possible doubt whether we will be here tomorrow. Thats certainly a possibility. We could be run over tonight. God, that would be a horrible thing, but its a possibility. Its not reasonable for us to think that we will because we plan our lives around the prospect of being alive. We take vacations; we get on airplanes. We do all these things because we have a belief beyond a reasonable doubt that we will be here tomorrow or we will be here in June, in my case, to go to Hawaii on a vacation. But we wouldnt plan our live[]s ahead if we had a reasonable doubt that we would, in fact, be alive. " (Johnson (Danny), supra, 115 Cal.App.4th at p. 1171.) The appellate court held that this explanation "had the effect of lowering the prosecutions burden of proof." (Id. at p. 1172.)
The court expressly disagreed with the harmless error conclusion in Nguyen, supra, 40 Cal.App.4th 28, and reversed the judgment because the "defendants substantial rights were affected by an instruction that reduced the prosecutions burden to a preponderance of the evidence." (Johnson (Danny), supra, 115 Cal.App.4th at p. 1172.)
In Johnson (Glen), the trial court discussed the reasonable doubt standard in questioning prospective jurors. In doing so, the "court equated proof beyond a reasonable doubt to everyday decisionmaking in a jurors life." (Johnson (Glen), supra, 119 Cal.App.4th at p. 980.) For example, the court told the jurors "that jurors who find an accused person guilty or not guilty engage in the same decisionmaking process they `use every day. When you get out of bed, you make those same decisions. " (Id. at p. 983.) In closing argument, "the prosecutor took his cue from the courts reasonable doubt instructions, characterized a juror who could return a guilty verdict without `some doubt about Johnsons guilt as `brain dead, and equated proof beyond a reasonable doubt to everyday decisionmaking in a jurors life: [¶] `As [the judge] explained to you even with yourself, the things that youve done in your own life, there has always been, at the minimum, some kind of bit of doubt in the back of your mind about whether or not what youre doing is right or wrong. Even though you felt really strongly about it, there is still kind of lingering doubt. Thats always going to be there. " (Ibid.)
Relying upon Johnson (Danny), supra, 115 Cal.App.4th 1169, the court held that the trial "courts tinkering with the statutory definition of reasonable doubt, no matter how well intentioned, lowered the prosecutions burden of proof below the due process requirement of proof beyond a reasonable doubt." (Johnson (Glen), supra, 119 Cal.App.4th at p. 985.) The court concluded that the erroneous description of the burden of proof constituted structural error and was reversible per se. (Id. at p. 986.)
In each of the cases relied upon by defendant, the examples of everyday decisions made by jurors were expressly and unambiguously used to expound upon the reasonable doubt standard. By contrast, the prosecutor in the instant case did not equate reasonable doubt to mundane decision-making. Rather, he told the jury that it must "[c]onsider all of the evidence in the case. And most importantly, use your common sense and decide whats reasonable and whats unreasonable and a lot of that has to do with that feeling in the pit of your stomach or in your gut . . . . I know he did it."
Barnett, supra, 17 Cal.4th 1044, cited by the People, is particularly instructive. There, a defendant argued that his state and federal constitutional rights by a prosecutors closing argument telling the jury: "If `you have that feeling, that conviction, that gut feeling that says yes, this man is guilty, hes guilty of these crimes . . . thats beyond a reasonable doubt. " (Id. at p. 1156.) The defendant made this argument, in conjunction with the language of former CALJIC No. 2.90, which contained references to the terms " `moral evidence "and " `moral certainty, " made it reasonably likely that the jury would have misunderstood the instruction as allowing for a finding of guilt on a standard lower than proof beyond a reasonable doubt. (Barnett, supra, at p. 1156.)
In rejecting this claim, our Supreme Court held, "When considered as a whole, the prosecutors arguments could not have misled the jury about the appropriate standard of proof. The prosecutor was not purporting to define `moral certainty as having a `gut feeling; rather, he was directing the jurors to trust their gut feelings in assessing the credibility of witnesses and resolving the conflicts in the testimony. Shortly after making the `gut feeling reference, the prosecutor clarified that jurors should `look beyond the mere words that have been testified to, `examine closely the various witnesses, their demeanor, their attitude, and `apply sometimes a certain intuitive reasoning to who has reasons to lie, who has not. And who to believe. " (Barnett, supra, 17 Cal.4th at p. 1157.)
Here, as in Barnett, supra, 17 Cal.4th 1044, the prosecutor was not purporting to equate reasonable doubt as a gut feeling, but was directing the jurors to trust their gut feelings in reviewing the evidence. After making the "pit of your stomach" reference, the prosecutor discussed the evidence in great detail and argued that there was no credible reason for the minor victims to lie about the charged offenses. Then, in rebuttal, the prosecutor argued, "A trial is a search for the truth. The verdict is based on the evidence, not speculation of what might have happened. What could have happened. Whats possible that it happened. What the defendant thinks happened. Its based on the evidence. So, again, determine what happened."
Our conclusion that the prosecutors comments did not denigrate the reasonable doubt standard "is reinforced by the fact that the trial court had repeatedly admonished the jurors, both at the outset of trial and after closing arguments, that they were required to follow the law and base their decision solely on the law and instructions as given to them by the court. Those admonishments were sufficient to dispel any potential confusion raised by the prosecutors argument. No basis for reversal appears." (Barnett, supra, 17 Cal.4th at p. 1157, italics original.)
Because we find that the prosecutors comments were not objectionable, defense counsels failure to object to them does not reflect a deficiency in her performance. Defendant was not, therefore, deprived of his right to effective assistance of counsel.
H. Cumulative Error
Defendant contends that even if the errors alleged above are not individually prejudicial, their cumulative prejudice warrants reversal. "Not so. We have rejected nearly all of defendants assignments of error . . . . [W]hen we have found error, we have concluded defendant was not prejudiced. Defendant `has merely shown that his " `trial was not perfect—few are. " [Citation.] " (People v. Bradford (1997)14 Cal.4th 1005, 1057.)
I. Defendants Sentence is Constitutional
Finally, we address defendants claim that his sentence of "21 years to life" violates the proscription against cruel and/or unusual punishment under both the state and federal Constitutions. (See People v. Dillon (1983) 34 Cal.3d 441 (Dillon); In re Lynch (1972) 8 Cal.3d 410 (Lynch); see also Harmelin v. Michigan (1991) 501 U.S. 957 (Harmelin).) He complains that given "his age and medical infirmities," the sentence constitutes "a commitment to prison for life without parole."
Contrary to defendants assertion, his sentence was not 21 years to life. The trial court sentenced defendant to three concurrent indeterminate terms of 15 years to life and one consecutive determinate term of six years. Unfortunately the trial court then improperly mixed the determinate and indeterminate terms to arrive at a total sentence of 21 years to life. Pursuant to section 669 and California Rules of Court, rule 4.451, when a determinate term is ordered served consecutively to an indeterminate term, the court must specify the determinate term computed without reference to the indeterminate term. The trial court must order that the determinate term be served consecutively under section 1168, subdivision (b); the determinate term must be ordered to be served first, before the defendant begins to serve his indeterminate term. (See, e.g., People v. Garza (2003) 107 Cal.App.4th 1081, 1094.) The minute order in the present case tracks the trial courts improper pronouncement of judgment and also indicates defendant was sentenced to a term of 21 years to life. The court also used the incorrect abstract of judgment form to reflect the determinate term, CR-290-A, which is an attachment to CR-290, a form pertaining to multiple determinate terms. When a determinate term is ordered to be served consecutively to an indeterminate term, a separate abstract of judgment must be completed. (See, Ryan, Superior Court Sentencing Script (2008 ed.) Multiple Count Cases, § 7.8, p. 7-5.) Thus, form CR-290.1 properly should have been used to reflect defendants single consecutive determinate term of 6 years.
As to the merits of defendants claim that his sentence constituted cruel and unusual punishment, both the federal and state Constitutions require that the punishment fit the crime. Under the prevailing view, the Eighth Amendment of the federal Constitution is violated when a sentence is " `grossly disproportionate " to the crime. (Harmelin, supra, 501 U.S. at p. 1001.) Similarly, the California Constitution is violated when the punishment "is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (Lynch, supra, 8 Cal.3d at p. 424.) Here, defendants sentence violates neither the state nor federal Constitution.
1. The California Constitution
The power to define crimes and prescribe punishment is a legislative function and courts will interfere only if the statute prescribes a penalty so severe in relation to the crime as to violate the constitutional prohibition against cruel or unusual punishment. (Dillon, supra, 34 Cal.3d at pp. 477-482; Lynch, supra, 8 Cal.3d at pp. 423-424.) Punishment offends the proscription against cruel or unusual punishment when it is "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (Lynch, supra, at p. 424.)"
` "A tripartite test has been established to determine whether a penalty offends the prohibition against cruel . . . [or] unusual punishment. First, courts examine the nature of the offense and the offender, `with particular regard to the degree of danger both present to society. Second, a comparison is made of the challenged penalty with those imposed in the same jurisdiction for more serious crimes. Third, the challenged penalty is compared with those imposed for the same offense in other jurisdictions. [Citations.] In undertaking this three-part analysis, we consider the `totality of the circumstances surrounding the commission of the offense. [Citations.]" [Citation.] (People v. Chacon (1995) 37 Cal.App.4th 52, 63, []; see also People v. Thongvilay (1998) 62 Cal.App.4th 71, 87-88 [].)" (People v. Sullivan (2007) 151 Cal.App.4th 524, 568-569.)
Under the first prong, the court examines the nature of the offense and offender. Here, defendant was convicted of committing independent lewd acts upon multiple victims who were particularly vulnerable. The trial court determined that the offenses were undeniably "serious." We agree with that assessment. Given the nature of the offenses, defendant was ineligible for probation. (See §§ 667.61, subd. (b) (sex offenders), 1203.066, subd. (a)(3) (befriending victim), 1203.066, subd. (a)(7) (multiple victims), 1203.066, subd. (a)(8) (substantial sexual conduct).) The court also considered the victim impact statements. C. Does mother was present at the sentencing hearing, and stated that C. Doe was afraid to go outside and had lost his trust in other people. She further stated that C. Doe felt that he had "been scarred for life." C. Does mother stated that she could not believe that defendant would commit such offenses and continue to blame the children for his behavior. Defendant, as an adult, took advantage of the boys he invited into his home and violated a position of trust. The callous and opportunistic nature of his sexual offenses against particularly vulnerable victims "seems to us precisely the sort of sexual offense that warrants harsh punishment." (People v. Alvarado (2001) 87 Cal.App.4th 178, 200.)
A consideration of defendants nature as an offender is no more favorable to him. " `[T]he inquiry focuses on the particular person before the court, and asks whether the punishment is grossly disproportionate to the defendants individual culpability as shown by such factors, as his age, prior criminality, personal characteristics, and state of mind. [Citation.]" (People v. Sullivan, supra, 151 Cal.App.4th at p. 570.) The court considered that defendant had a good record of public service, and had been a very successful and productive member of society. However, ample evidence was presented at trial that defendant preyed on particularly vulnerable victims by luring them to his home with offers of alcohol, money, cigarettes, marijuana, and pornographic movies. This allowed defendant access to young victims outside the presence of other adults.
The trial court further considered that defendant was 53 years old and had no prior record. However, the fact that he has no prior criminal record is not determinative. (People v. Martinez (1999) 76 Cal.App.4th 489, 497.) "The one strike law was enacted to ensure serious and dangerous sex offenders would receive lengthy prison sentences upon their first conviction." (People v. Palmore (2000) 79 Cal.App.4th 1290, 1296.)
The record reflects that defendant was 53 years old at time of the offenses. At the time of sentencing, defendant was nearly 55 years old.
Under the second prong, the challenged punishment is compared with punishments prescribed for more serious crimes in California. When examining the challenged punishment it is defendants burden to establish that his punishment is greater than that imposed for more serious offenses in California. (People v. Sullivan, supra, 151 Cal.App.4th at p. 569; In re DeBeque (1989) 212 Cal.App.3d 241, 254-255.) Here, defendant has failed to meet his burden. Defendant has not cited any authority that his sentence is greater than that imposed for more serious offenses. His proffered comparison between his punishment and that imposed upon individuals convicted of various other offenses, including manslaughter, gross vehicular manslaughter while intoxicated, and robbery is flawed. " `[P]roportionality assumes a basis for comparison. When the fundamental nature of the offense and the offender differ, comparison for proportionality is not possible. [Citations.]" (People v. Sullivan, supra, 151 Cal.App.4th at p. 571.) Defendant ignores that he was convicted of sex crimes against multiple victims (§ 667.61, subd. (e)(5)) and that the one strike scheme "ensures serious sexual offenders receive long prison sentences . . . ." (People v. Wutzke (2002) 28 Cal.4th 923, 929.) Defendant is not subject to three consecutive terms of 15 years to life and one consecutive determinate term of six years merely on the basis of four acts of lewd conduct, but also because of the attendant aggravating circumstances. Section 667.61s intolerance toward child sexual abuse is consistent with section 288, which was enacted "to provide children with `special protection from sexual exploitation." (People v. Martinez, supra, 11 Cal.4th at pp. 443-444.) Thus, a comparison of defendants punishment for the underlying offenses with the punishment for other crimes in California is inapposite as "persons convicted of sex crimes against multiple victims within the meaning of section 667.61, subdivision (e)(5) `are among the most dangerous from a legislative standpoint. [Citation.]" (People v. Wutzke, supra, 28 Cal.4th at pp. 930-931.)
Under the third prong, the challenged punishment is compared with punishments prescribed for similar conduct in other jurisdictions. Again, defendant has the burden of establishing that similar offenses in other states do not carry punishments as severe. (People v. Sullivan, supra, 151 Cal.App.4th at p. 569; In re DeBeque, supra, 212 Cal.App.3d at p. 255.) As to this prong, defendant makes no argument. Therefore, we need not address this factor.
In sum, defendant has failed to establish that his is one of those exquisitely rare cases in which the sentence shocks the conscious and offends fundamental notions of human dignity. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.) Accordingly, defendants sentence was proper under the California Constitution.
In re Rodriguez (1975) 14 Cal.3d 639 relied on by defendant, does not compel a contrary conclusion. There, our Supreme Court, applying the Lynch, supra, 8 Cal.3d 410 factors, concluded that a 22 year sentence constituted cruel or inhuman punishment for the single fondling of a six-year-old girl by an offender with no criminal convictions. (Rodriguez, supra, 14 Cal.3d at pp. 644, fn. 6, 655.)
In People v. Rodriguez, the defendant and his wife had been driving in their car when they saw the six-year-old victim roller skating. (14 Cal.3d at pp. 643-644, fn. 5.) Defendant "stopped the car, got out, picked the girl up and put her on the front seat next to his wife. They drove to a less public place where [the defendant] fondled the childs private parts." (Ibid.) The defendant was 26 years old at the time of the offense, and had "an I.Q. of about 68, and was functionally illiterate and unskilled." (Id. at p. 644, fn. 6.) Prior to the underlying offense, the defendant "had been arrested at age 19 and charged with attempted statutory rape, and two years later was arrested for molesting a child." (Ibid.) The defendant was diagnosed a " `sexual psychopath " and committed to a state hospital, from which he escaped with another patient whom he subsequently married. (Ibid.) The defendant "claimed that his discovery that his wife was sterile frustrated his intense desire to have children, and that that frustration led to his commission of the instant offense." (Ibid.)
The Rodriguez court explained: "The offense committed here is by no means `trivial, but the method of its commission involved no violence and caused no physical harm to the victim. The episode lasted only a few minutes. No weapon was involved and [defendant] attempted none of the dangerous offenses sometimes associated with violations of section 288. [¶] Nor do the particular characteristics of this offender at the time of the offense justify 22 years imprisonment. He was only 26 years old at the time of the offense. His conduct was explained in part by his limited intelligence, his frustrations brought on by intellectual and sexual inadequacy, and his inability to cope with these problems. He has no history of criminal activity apart from problems associated with his sexual maladjustment. Thus, it appears that neither the circumstances of his offense nor his personal characteristics establish a danger to society sufficient to justify such a prolonged period of imprisonment." (Rodriguez, supra, 14 Cal.3d 639 at pp. 654-655.)
Here, defendant argues that there is an even more compelling basis to find his sentence unconstitutional than in People v. Rodriguez, supra, 14 Cal.3d 659. We disagree. Rodriguez involved a single offense committed against one victim. Here, in contrast, defendant was convicted of four offenses that were committed at two different times. Defendant was also found to have committed the offenses against multiple victims, and befriended one victim for the purpose of committing such offenses, and had engaged in substantial sexual conduct with this victim. Moreover, substantial evidence was presented at trial that defendant "groomed" his victims over a period of time, providing them with alcohol, marijuana, cigarettes, money, and pornography. This calculating behavior is unlike the crime of opportunity committed in Rodriguez. Further, unlike in Rodriguez, defendant was well-educated and did not suffer from "limited intelligence."
2. The Federal Constitution
Defendant fares no better under the federal Constitution. The hurdles defendant must surmount to demonstrate cruel and unusual punishment under the federal Constitution are, if anything, higher than under the state Constitution. (See e.g., People v. Cooper (1996) 43 Cal.App.4th 815, 820-824.) Under the Eighth Amendment of the federal Constitution, the issue is whether the sentence is " `grossly disproportionate "to the crime. (Harmelin, supra, 501 U.S. at p. 1001; see also Ewing v. California (2003) 538 U.S. 11, 21.) Defendants crimes involved four counts of lewd conduct with three minor victims under the age of 14, as well as aggravating circumstances. We cannot say that his sentence is grossly disproportionate to his criminal culpability so as to constitute cruel and unusual punishment under the United States Constitution. (See People v. Crooks (1997) 55 Cal.App.4th 797, 805-806.)
Based on the substantial evidence adduced at trial, we conclude that defendants sentence does not offend the proscription against cruel and/or unusual punishment under the governing standards.
IV. DISPOSITION
The trial court is directed to: (1) prepare an abstract of judgment on form CR-290.1, referencing defendants consecutive six-year determinate term on count three; (2) prepare an amended abstract of judgment on form CR-292, deleting the reference to defendants consecutive six-year determinate term on count three; (3) forward certified copies of the abstracts of judgment to the Department of Correction; and (4) correct the minute order to delete the reference to a total term of 21 years to life and to reflect that defendant was sentenced to concurrent terms of 15 years to life on counts one, two, and four, and a consecutive six-year determinate term on count three, which defendant shall serve first. As modified, the judgment is affirmed.
We concur:
Reardon, Acting P.J.
Rivera, J.