Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Napa County Super. Ct. Nos. CR38485, CR132649
Jenkins, J.
This is an appeal from the judgment entered after a jury convicted appellant Renaldo D. Dominguez on 19 counts of sexual abuse crimes against children. Appellant challenges his conviction on the grounds that the trial court erred by: (1) dismissing a juror from duty during deliberations based upon the juror’s alleged acts of misconduct; (2) admitting evidence of appellant’s commission of other uncharged sexual abuse crimes against children; and (3) imposing a fine against him pursuant to Penal Code section 290.3, subdivision (a), in an erroneous amount and without first establishing his financial ability to pay it.
Unless otherwise stated, all statutory citations herein are to the Penal Code.
For the reasons set forth below, we remand the matter to the trial court for reconsideration of its decision to impose a fine against appellant pursuant to section 290.3. In all other regards, however, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On July 23, 2007, a second amended information was filed charging appellant with 19 counts of lewd acts upon a child. The second amended information further alleged that appellant committed each of the offenses against more than one victim within the meaning of section 1203.066, subdivision (a)(7); that, with respect to counts 1 through 11 and 18 through 19, appellant engaged in substantial sexual conduct with victims under the age of 14 within the meaning of section 1203.66, subdivision (a)(8); that, with respect to counts 7 through 19, appellant committed the offenses against more than one victim within the meaning of section 667.61, subdivision (b); and that, with respect to counts 1 through 9, the statute of limitations was extended pursuant to section 803, subdivision (f).
The subsequent trial of the charges against appellant revealed the following facts.
I. M.S. (Counts 1 through 11).
M.S. was born in June 1983. When M.S. was approximately seven years old, he went to live with appellant in a house on Molina Drive in Napa County after his mother entered a hospital for drug addiction. M.S. had siblings and a father, but appellant told him they did not want him.
Appellant’s domestic partner, Tony Vallerga, and friend, Chris Brown, also lived in the Molina Drive house. Appellant was very kind and affectionate towards M.S., telling him he loved him, buying him presents and taking him to theme parks. Appellant tried to put M.S. on medication, telling M.S. it would prevent him from becoming “nuts” like his mother.
Appellant received additional money for caring for foster children who were taking medication.
When appellant bathed M.S., appellant often touched M.S.’s genitals for several minutes. M.S. believed this was wrong, but he trusted appellant, so said nothing. One time, when M.S. was home sick, appellant placed M.S.’s mouth on appellant’s naked penis. M.S. tried to pull away, but appellant would not let him, and then forced M.S. to suck his penis until appellant ejaculated. Appellant thereafter forced M.S. to orally copulate him several more times when they lived in the house on Molina Drive. M.S. submitted because appellant was much larger than him, and M.S. could not stop him.
Later, appellant began sodomizing M.S. at the house on Molina Drive, at which point the oral copulation and fondling in the bath for the most part ceased. It was very painful and M.S. cried and screamed, but could do nothing because appellant was too strong.
After a year and a half, appellant moved with M.S., Vallerga and Brown to an apartment, and then to another house. Appellant continued to sodomize M.S. regularly when no one was home, using ointment but not condoms.
After a year, appellant and M.S. moved to another house on Shoreline Drive, at which time other foster children began to move in. Appellant continued to sodomize M.S. when they were alone. Eventually, they moved to a house on Cabot Way. Appellant sodomized M.S. five times in that house, until just before M.S.’s fourteenth birthday in 1997. At that time, M.S. decided to no longer put up with the abuse, and so hit appellant with a shoe and ran away. Eventually, M.S. took a bus to Rhode Island to live with his father. There, M.S. experienced a lot of anger and got into a lot of trouble.
II. C.B. (Counts 12 through 15.)
C.B. was born in March 1990. When C.B. was a seven-year-old foster child, he moved into appellant’s house on Cabot Way, sharing a room with another foster child, D.U.
Three times, appellant bathed C.B. in the shower, touching C.B.’s genitals. After these incidents, C.B. began to lock the door when he showered. He also reported appellant’s misconduct to his social worker, but she did not believe him.
Appellant also tried to touch C.B.’s crotch more than once, but retreated when C.B. told him to stop. Once, during an Easter egg hunt, appellant grabbed C.B.’s penis when he bent down to pick up an egg.
According to C.B., appellant treated D.U. better than him. Once, C.B. saw appellant washing D.U., who was naked, in the bathroom. Another time, C.B. saw appellant reach up D.U.’s shorts to touch him. One night, C.B. heard D.U. cry about having to sleep in appellant’s room.
C.B. had nightmares when he lived with appellant. When C.B. told appellant about the nightmares, appellant invited him to sleep in his room, but C.B. declined because he did not want to sleep in a bed with appellant.
Appellant made C.B. take medication he did not want.
III. D.U. (Counts 16 through 19.)
D.U. was born in October 1989. He became a foster child when he was seven years old, and moved into appellant’s house on Cabot Way when he was eight years old. At first, D.U. was mostly happy living with appellant, who took him swimming, bought him presents and helped with his homework. After a while, however, appellant began acting strangely, making sexual jokes and putting his hand on D.U.’s thigh. Appellant helped bathe D.U., washing his penis and butt, even though he was old enough to bathe himself. Appellant also french-kissed D.U., telling him not to tell anyone. Initially, D.U. thought this conduct was strange, but he eventually considered it normal because it happened so often.
One night, D.U. could not sleep, and went to appellant’s room to tell him. Appellant invited D.U. into his room and then turned on a pornographic film. Appellant then took D.U.’s hand and placed it on appellant’s penis, and then touched D.U.’s penis. After that, D.U. went to appellant’s room every night, where they would touch each other and watch pornographic films, with appellant ejaculating on the sheets or on a tissue. While this was occurring, appellant’s partner, Vallerga, was usually watching television in the living room. Afterwards, appellant would let D.U. watch cartoons.
In addition, appellant and D.U. engaged more than once in oral sex and in sodomy. The sodomy was painful even though appellant used a lubricant. D.U. loved appellant, and believed this conduct was normal. Appellant made D.U. take medication to help him focus.
When D.U. was moved to another foster home, he called appellant, who picked him up and hid him in the house on Cabot Way. Eventually, however, D.U. reported the sexual abuse to an investigator sent by his dependency attorney and then to the police.
IV. The Uncharged Offenses.
A. B.G.
B.G. was born in September 1986. B.G. and his older brother, S.G., lived with appellant as foster children at the house on Shoreline Drive. M.S. also lived with appellant at that time, and was treated better than B.G. and S.G. M.S. had his own room with lots of cool stuff, but slept in appellant’s room. Once, B.G. saw M.S. go into appellant’s room naked with a blanket wrapped around him. Another time, he saw M.S. go into appellant’s room with only a pillow around his waist.
During his time with appellant, B.G. developed a bladder problem. When B.G. told this to appellant, appellant made him remove his pants, and then examined his penis and washed it for five to ten minutes. B.G. told no one about this incident until he was fourteen years old.
B. G.A.
G.A., appellant’s half-brother, was born in September 1963, sixteen years after appellant was born. When G.A. was seven years old, he shared a room with appellant. One night, appellant told G.A. to get into bed with appellant because there were ghosts under G.A.’s bed. Once there, appellant removed G.A.’s underwear and touched his body, including his genitals. Appellant then sodomized G.A. for about 20 minutes, causing him to bleed. When G.A. told appellant the sodomy was painful, appellant replied that it was the only way to keep the ghosts away. When he finished, appellant told G.A. the ghosts would return if he told anyone what had occurred.
The next day, appellant made G.A. masturbate him. Appellant then continued to sexually abuse G.A. every day for the next five or six months, touching or sodomizing G.A. or forcing G.A. to touch him. G.A. submitted because he was scared of appellant, who was bigger and stronger. Eventually, G.A. told appellant that if the abuse did not stop, he would report it. Appellant then stopped.
G.A. came forward to testify against appellant at trial because he believed it was “time to end this.”
V. Other Witnesses for the Prosecution.
L.K. lived with appellant as a foster child when she was eleven years old. M.S. also lived with appellant at that time, and was very spoiled.
When L.K. was fourteen years old, she returned to appellant’s house as a foster child, and lived in the room across from appellant’s. During this time, L.K. saw D.U. go into appellant’s room nearly every night. Appellant was very affectionate with D.U., and gave him many gifts. Appellant treated D.U. differently than the other children, but similar to how he used to treat M.S. L.K. was jealous.
After D.U. was removed from appellant’s home, he returned, and appellant asked L.K. to hide D.U. in her closet and to lie to police.
Stephanie Brennan was a social worker who placed foster children in appellant’s home. Brennan believed appellant’s relationship with B.G. and S.G. was unusually clingy. She found it strange that appellant wanted to medicate the boys, and suspected that he lied about their performance in school. In addition, she believed that D.U. looked to appellant for permission to answer her questions, and that appellant resisted her efforts to reunify D.U. with his mother.
Dr. Anthony Urquiza, a psychologist, testified about Child Sexual Abuse Accommodation Syndrome (CSASS), a pattern of behaviors often exhibited by child sexual abuse victims. Those behaviors include secrecy, helplessness, entrapment, accommodation, and delayed, conflicted or unconvincing disclosure or retraction.
VI. The Defense Case.
Appellant, who testified on his own behalf, adamantly denied molesting any of the alleged victims.
Appellant also described having worked as an orderly at a veteran’s hospital in the 1980’s. In 1984, appellant was bitten by a suicidal patient and, as a result, suffered from blood poisoning and later from an incurable skin disorder. Since then, appellant has suffered boils and lesions on many parts of his body, including his stomach, legs, groin and scrotum. The boils, which can be extremely painful, forced him into early retirement from his job at the hospital.
Appellant believed the proper name for his illness was septicemia.
In addition, the skin disorder caused appellant to gain a great amount of weight, leading to uncontrolled diabetes which, among other things, decimated appellant’s sexual energy and desire. Appellant used to enjoy a normal and healthy sex life with Vallerga but, after appellant became sick, their sex life virtually ended. Appellant feared infecting Vallerga with his ailment (although it is hard to transmit), and often felt tired and had difficulty breathing. Vallerga, testifying in appellant’s defense, confirmed this information.
Appellant became a foster parent after his illness caused him to retire from the hospital. He liked children and often accepted foster children whose background made them difficult to place. While some of those children were on medication, only their doctor could decide to medicate them, and there were such strict conditions placed on his administering of medication that it would have been impossible for him to overmedicate a child.
Many of the foster children’s natural parents did not like appellant because of his sexual orientation and because he had custody of their children. Appellant loved his foster children, and does not understand how they could have accused him of molestation.
Appellant pitied G.A., calling him a “lowlife” and claiming he lied in court because there had always been “friction” between them. According to appellant, he never inappropriately touched G.A. and, in fact, did not live in the same house with him at the time of the alleged abuse. In addition, G.A.’s father hated appellant because of his sexual orientation.
Dr. Donald Hitchcock, the physician who treated appellant for his skin disorder and other illnesses during the relevant time period, testified in his defense. Dr. Hitchcock, among other things, opined that, given appellant’s medical condition, it was doubtful that appellant could have had frequent, normal sex during the time in question. Dr. Hitchcock did not, however, perform any specific tests to assess appellant’s sexual functioning or desire during the relevant time period.
Several of appellant’s friends, relatives and co-workers also testified in his defense. These witnesses testified as a general matter that they never saw appellant act inappropriately around the children, or that appellant did not have the character of a child molester.
Dr. Lloyd K. Nelson, who treated M.S., D.U., and C.B. during the relevant time period, testified that he never saw evidence that the children were being sexually abused.
Dr. Lee Coleman, a child psychiatrist, and Michael Hertica, a family therapist, offered testimony that the accusations of sexual abuse against appellant were unreliable given, among other things, the child witnesses’ troubled backgrounds, the pressure placed upon them by adults, and the suggestive interview techniques used with them.
VII. The Verdict and Sentence.
On August 3, 2007, the jury found appellant guilty as charged, and found true all special allegations. Appellant was thereafter sentenced to prison for 185 years to life. This appeal followed.
DISCUSSION
Appellant challenges the judgment on the grounds that: (1) the trial court erred by dismissing a juror after finding good cause to do so during the jury’s deliberations; (2) the trial court erred by admitting evidence of appellant’s commission of other uncharged sexual abuse crimes against children; and (3) a fine was improperly imposed against him pursuant to section 290.3, subdivision (a). We address each argument in turn.
I. Dismissing Juror Nine.
Appellant contends that the trial court abused its discretion by removing juror nine from the jury during deliberations, and thereby violated his right to a jury trial under the Sixth and Fourteenth Amendments of the United States Constitution and article I, section 16 of the California Constitution. The relevant facts are as follows.
On the morning of August 2, 2007, the jury began deliberating. The next morning, August 3, at approximately 8:30 a.m., the jury foreperson sent a note to the trial court, advising that “Juror #9 is not following the duties of the jury and has refuse [sic] to reach a verdict without any consideration of punishment. CAN HE BE REPLACED? I need to see you!” In response, the trial court summoned the jury foreperson to the courtroom for questioning out of the presence of the other jurors. There, the jury foreperson advised the trial court that, after the entire jury had agreed upon a verdict on one of the counts, juror nine stated “I’m retracting it, because it’s a felony.” According to the foreperson, juror nine then said: “I can’t do this charge, because I don’t believe it’s a felony. [¶] . . . I don’t care what the judge says, it’s not a felony.”
The trial court thereafter excused the jury foreperson, and summoned juror nine for questioning. When, during the questioning, the trial court asked juror nine whether he was considering punishment during the deliberations, juror nine stated “No, your Honor,” and “I am following all instructions given to me.” Thus, after permitting both counsel to further question juror nine, the trial court excused him and ordered deliberations to continue.
Later the same morning, at about 11:20 a.m., the trial court received a second note from the jury, advising: “We can’t reach a verdict and no verdict [sic] in sight.” This time, the trial court summoned the entire jury to the courtroom. Once there, the trial court questioned the jury foreperson about the note, asking whether further deliberations would be helpful. The foreperson replied: “Personally, I don’t. We have – I don’t know if I can say that, but we have one person that is basically not willing to change.” The trial court then asked whether it would be helpful if the court read certain testimony back to the jury or further explained any of the instructions. In response, the foreperson requested further explanation of “reasonable doubt” and “what evidence is and isn’t,” which the trial court provided. The trial court then ordered the jury to return to the jury room for further deliberations.
The trial court then conferred with counsel. The prosecutor commented that perhaps, under the circumstances, juror nine had been dishonest when insisting to the trial court that he was following instructions. The prosecutor then advised the trial court that he had discovered juror nine had withheld relevant information when asked during voir dire whether he or someone he knew had been accused of committing a similar type of crime. Specifically, the prosecutor advised that, according to records from the Napa Police Department, juror nine had been accused in 1989 of fondling a sixteen-year-old girl’s breasts. Juror nine was not arrested and no charges were filed, but he was questioned at the time by police, and the matter received some media attention. The prosecutor insisted that, had he known this information during voir dire, there would have been “absolutely no way” the prosecution would have permitted juror nine to remain on the jury.
In response to these allegations, the trial court referred to its voir dire notes, which reflected that the entire jury panel had been asked whether “you or someone you know [have] been accused of having committed a sexual assault on a child or adult.” The trial court thus decided to question juror nine about his alleged failure to disclose the sexual assault accusation against him, as well as about his alleged failure to follow instructions during deliberations.
Juror nine admitted to the trial court that he had been accused by a sixteen-year-old girl of committing a sexual assault. Juror nine explained that a police officer and district attorney had spoken with him about the accusation, but that no charges were filed because the girl’s mother, who had been present during the alleged incident, denied anything improper had occurred. With respect to voir dire, juror nine explained that he thought the trial court had asked whether anyone had been “charged with,” rather than “accused of,” a similar crime, and for that reason did not mention the earlier incident. When questioned about the police record of the incident, juror nine claimed he did not recall telling an officer “how damaging an allegation such as this could be,” obtaining or reading a copy of the police report regarding the incident in 1990, or hearing talk about being sued by the victim or her mother. When asked by counsel whether he believed information regarding the accusation against him would be important information for counsel to have, juror nine responded: “I would think since you represent the District Attorney’s Office, you would know everything about each jurist since you have access to that information. My name is on the list. If you want information, it was right there available to you. I don’t know the process. I just answered the question the best I could.”
Upon further questioning, juror nine acknowledged he would have been embarrassed to tell the court about the earlier accusation, but reiterated that he had “listened to questions all day long, all day long for a day and a half before I got up there,” and that he did not believe he had been asked whether he had ever been accused of a similar type of crime.
After juror nine was excused, the trial court again conferred with counsel. During the conference, the prosecution noted that it was suspicious that juror nine claimed not to recall being asked whether he or someone he knew had been accused of a similar type of crime, yet claimed to have listened closely to all questions and had even volunteered during voir dire that he knew people who had been molested. The defense, on the other hand, argued that juror nine’s failure to recall was understandable, particularly given that the jury panel was not questioned individually. The trial court again reviewed its voir dire notes, and reiterated that the third question asked of the entire panel was: “Have any of you or has anyone you know been accused of having committed a sexual assault on a child or adult?” The trial court then concluded that good cause existed to remove juror nine from the jury, and thus ordered his discharge and the placement of alternate juror one. Two hours later, the new jury reached guilty verdicts on all 19 counts.
On appeal, appellant claims the trial court’s ruling was “unjustified,” and violated his constitutional rights to due process and a fair trial by an unbiased jury. In addressing appellant’s claim, we turn first to the relevant law.
Under both the federal and state constitutions, a defendant has a right to a unanimous verdict by a fair and impartial jury. (Cal. Const., art. I § 16; U.S. Const., 6th and 14th Amend.; see also People v. Wheeler (1978) 22 Cal.3d 258, 265.) Further, to be valid, a criminal verdict must express the independent judgment of each member of the jury. (See People v. Gainer (1977) 19 Cal.3d 835, 848-849; People v. Bento (1998) 65 Cal.App.4th 179, 186.)
Pursuant to California statutory law, a trial court may under certain circumstances discharge a juror from service before the jury reaches a verdict without offending these important protections afforded the defendant. Section 1089 provides in relevant part: “If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, . . . the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors.” (Pen. Code, § 1089.)
In deciding what constitutes good cause for removal under section 1089, the California Supreme Court has held that “[a] juror who is actually biased is unable to perform the duty to fairly deliberate and thus is subject to discharge. (People v. Ayala (2000) 24 Cal.4th 243, 272 [99 Cal.Rptr.2d 532, 6 P.3d 193]; People v. Nesler (1997) 16 Cal.4th 561, 581 [66 Cal.Rptr.2d 454, 941 P.2d 87] (lead opn.).)” (People v. Barnwell (2007) 41 Cal.4th 1038, 1051.) See also People v. Nesler, supra, 16 Cal.4th at p. 581 [“A sitting juror’s actual bias that would have supported a challenge for cause also renders the juror unable to perform his or her duties and thus subject to discharge”]. Concealment of material information during voir dire, whether intentional or unintentional, may indicate bias, and thus subject a juror to discharge. “ ‘ “[T]he proper test to be applied to unintentional ‘concealment’ is whether the juror is sufficiently biased to constitute good cause for the court to find under Penal Code section 1089 and [former] 1123 that he is unable to perform his duty.” ’ (People v. McPeters (1992) 2 Cal.4th 1148, 1175 [9 Cal.Rptr.2d 834, 832 P.2d 146]; see People v. San Nicolas (2004) 34 Cal.4th 614, 644 [21 Cal.Rptr.3d 612, 101 P.2d 509] [quoting McPeters with approval].)” (People v. Wilson (2008) 44 Cal.4th 758, 823; see also People v. Carter (2005) 36 Cal.4th 1114, 1208-1210 [“ ‘juror misconduct involving the concealment of material information on voir dire raises the presumption of prejudice’ ”].)
“Removing a juror is, of course, a serious matter, implicating the constitutional protections defendant invokes. While a trial court has broad discretion to remove a juror for cause, it should exercise that discretion with great care.” (People v. Barnwell, supra, 41 Cal.4th at p. 1052, fn. omitted.) Consistent with such care, “[w]hen a court is informed of allegations which, if proven true, would constitute good cause for a juror’s removal, a hearing is required. (People v. Burgener (2003) 29 Cal.4th 833, 878 [129 Cal.Rptr.2d 747, 62 P.3d 1] (Burgener); People v. Cleveland (2001) 25 Cal.4th 466, 478 [106 Cal.Rptr.2d 313, 21 P.3d 1225] (Cleveland).)” (People v. Barnwell, supra, 41 Cal.4th at p. 1051.)
On review, we must ensure that a juror’s disqualification “appear[s] on the record as a ‘ “ ‘ “demonstrable reality.” ’ ” ’ (Cleveland, supra, 25 Cal.4th at p. 474; see People v. Marshall (1996) 13 Cal.4th 799, 843 [55 Cal.Rptr.2d 347, 919 P.2d 1280]; see also Boyette, supra, 29 Cal.4th 381.) The demonstrable reality standard traces back to Justice Mosk’s majority opinion in People v. Compton (1971) 6 Cal.3d 55, 60 [98 Cal.Rptr.217, 490 P.2d 537]. This standard ‘indicates that a stronger evidentiary showing than mere substantial evidence is required to support a trial court’s decision to discharge a sitting juror.’ (Cleveland, supra, at p. 488 (conc. opn. of Werdegar, J.).)” (People v. Barnwell, supra, 41 Cal.4th at p. 1052.)
“The demonstrable reality test entails a more comprehensive and less deferential review. It requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that bias was established. It is important to make clear that a reviewing court does not reweigh the evidence under either test. Under the demonstrable reality standard, however, the reviewing court must be confident that the trial court’s conclusion is manifestly supported by evidence on which the court actually relied.” (People v. Barnwell, supra, 41 Cal.4th at pp. 1052-1053; see also People v. Lucas (1995) 12 Cal.4th 415, 489 [“The juror’s inability to perform must appear as a ‘demonstrable reality’ and will not be presumed.”].)
“In reaching that conclusion, the reviewing panel will consider not just the evidence itself, but also the record of reasons the court provides. A trial court facilitates review when it expressly sets out its analysis of the evidence, why it reposed greater weight on some part of it and less on another, and the basis of its ultimate conclusion that a juror was failing to follow the oath. In taking the serious step of removing a deliberating juror the court must be mindful of its duty to provide a record that supports its decision by a demonstrable reality.” (People v. Barnwell, supra, 41 Cal.4th at p. 1053.)
We keep in mind that the evidence before the trial court relating to a juror’s misconduct may be conflicting. In particular, the juror may have denied being unable to perform his or her duties in deliberations. “Naturally, in such circumstances, we afford deference to the trial court’s factual determinations, based, as they are, on firsthand observations unavailable to us on appeal.” (People v. Barnwell, supra, 41 Cal.4th at p. 1053.)
Here, the trial court provided a detailed statement of reasons on the record for his conclusion that juror nine should be removed from the jury during deliberations. Specifically, the trial court explained:
“He was asked, the whole panel was asked, if any of them had been accused of having . . . committed a sexual assault. Clearly this was a major concern to the Court and the attorneys. And it was obvious to all members of the jury panel that we expected disclosure if people had any personal involvement with accusations of sexual assault, molestation, et cetera.
“There were people volunteering very sensitive information. They had the opportunity to ask to speak to us in private and some of them did do so. It was obvious from anyone observing the proceedings, that this was an area of critical concern for the parties, for the defendant, the attorneys and the Court.
“And observing [juror nine] this morning, I don’t have confidence that he was being truthful with us today. He said that he misunderstood the question or thought I had asked if there were charges filed. That wasn’t the question, and I can’t see how a reasonable person sitting in this courtroom would have limited the question just to that and think that they only had to make a disclosure if there was a charge pending.
“The other questions I had asked of the jurors about whether they had been victims, whether they knew of anyone who had been victims, all of those questions were followed up with, were charges filed? Were you satisfied with the outcome?
“Clearly, if he had mentioned – I wasn’t just asking for whether charges had been filed, we wanted to know if there had been any instances and, certainly, if there had been an accusation against a particular juror, it would have been critical for us to know.
“He even said, and it’s not [as] if he said today he completely forgot about this incident, this clearly was something significant in his life when the allegations were in the newspaper. There was apparently a public airing of these allegations. It was very significant to him. And certainly a juror who had been accused of something like this, would – could easily have formed some opinions about whether or not these kinds of charges can be easily made or that they can be unsubstantiated or not.
“And he also said that the district attorney could have gotten information if they wanted it about his background. Well, certainly, that is not any discussion in this courtroom, that we are going to be doing criminal backgrounds of every prospective juror. I believe that he deliberately withheld the information.
“In addition, let’s just say that he inadvertently withheld it, that he didn’t hear the question, he didn’t understand that there was supposed to be disclosure. There should be disclosure of something like that. It clearly would affect the People’s decision about whether or not to keep the juror on the jury, It’s something like that in a potential juror’s background, it certainly would suggest bias and possible bias and prejudice that should be explored and I doubt that a juror with that background would have been allowed by the People to sit on the jury. And, in fact, that is what [the prosecution] has indicated.
“So for all of those reasons, I find that there is good cause to excuse [juror nine]. We don’t even need to get into the other issue of whether he wasn’t deliberating in good faith. In my view, this is more than sufficient cause to excuse him as a juror. So, I am going to excuse him.”
The trial court’s reasoning, we conclude, is sufficient to demonstrate a “demonstrable reality” that juror nine was not qualified to perform the duties required of him under the law. (§ 1089; People v. Barnwell, supra, 41 Cal.4th at pp. 1052-1053.) Specifically, the evidence disclosed at the hearing, when considered as a whole, supported the trial court’s determination that juror nine’s professed ignorance of being asked during voir dire whether he or someone he knew had been accused of a sexual assault was not credible. In so concluding, we note that the trial court’s determination in this regard deserves deference, given that it was based on firsthand observations unavailable to us on appeal. (People v. Barnwell, supra, at p. 1053; People v. Lucas, supra, 12 Cal.4th at p. 489 [“Although the juror stated the cancellation of her vacation would not affect the discharge of her duties as a juror, her behavior and demeanor supplied substantial evidence to the contrary.”].) In particular, at the hearing, the trial court, along with counsel, questioned juror nine extensively regarding his concealment of information during voir dire. In addition, during voir dire, the trial court and counsel questioned juror nine regarding his background. Both times the trial court had the opportunity – which we have not had – to observe juror nine’s demeanor when responding to the questions. And, after making such observations, the trial court concluded that it did not “have confidence that [juror nine] was being truthful . . . .” The trial court further noted that, while juror nine claimed to have misunderstood or not to have heard the relevant question, it could not “see how a reasonable person sitting in this courtroom would have limited the question just to that and think that they only had to make a disclosure if there was a charge pending.” Under these circumstances, we defer to the trial court’s reasoned judgment in this regard.
In doing so, we acknowledge appellant’s claim that the trial court, in removing juror nine, should not have relied upon the prosecution’s assertion that, had he known of the earlier accusation of sexual assault against juror nine, he would have used a preemptory challenge against him. Appellant reasons that the prosecution did not begin its investigation of juror nine leading to discovery of the accusation until he learned from the jury foreperson that juror nine was allegedly not following the court’s instructions and was the lone holdout for acquittal. While this may be true, however, it does not take away from the fact that juror nine failed to reveal the accusation of sexual assault to the trial court and counsel during voir dire, and thus prevented the discovery of a potential bias affecting his ability to carry out his duties as juror. As the California Supreme Court has observed: “A criminal defendant has a constitutional right to an impartial jury, and the pretrial voir dire process is important because it enables the trial court and the parties to determine whether a prospective juror is unbiased and both can and will follow the law. But the voir dire process works only if jurors answer questions truthfully. ‘As the United States Supreme Court has stated, “Voir dire examination serves to protect [a criminal defendant’s right to a fair trial] by exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to questions on voir dire may result in a juror’s being excused for cause; hints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges. The necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious.” [Citation.] [¶] A juror who conceals relevant facts or gives false answers during the voir dire examination thus undermines the jury selection process and commits misconduct.’ (In re Hitchings (1993) 6 Cal.4th 97, 110-111 [24 Cal.Rptr.2d 74, 860 P.2d 466], fn. omitted.)” (People v. Wilson, supra, 44 Cal.4th at pp. 822-823; see also People v. Carter, supra, 36 Cal.4th at p. 1208.)
Accordingly, because juror nine’s concealment during voir dire of material information demonstrating potential bias was sufficient to constitute good cause under section 1089, we affirm the trial court’s decision to remove him.
II. Admission of Propensity Evidence.
The trial court admitted evidence of appellant’s uncharged sexual abuse of his half-brother, G.A., 35 years ago when G.A. was eight years old, and of another of appellant’s foster children, B.G., when B.G. was seven years old, pursuant to Evidence Code section 1108. Evidence Code section 1108 provides an exception in cases involving sexual offenses to the general rule, set forth in Evidence Code section 1101, barring admission of evidence of a defendant’s character to commit crimes to prove he or she committed the particular crime at issue. The relevant statutory scheme is as follows.
Evidence Code section 1101, subdivision (a) provides: “Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” Subdivisions (b) and (c) of the statute permit admission of such evidence, however, when relevant to attack or support a witness’s credibility or to prove some fact other than a person’s character or disposition to commit crimes, such as the person’s motive, identity, intent or common scheme or plan. (Evid. Code, § 1101, subds. (b), (c).)
Evidence Code section 1108, subdivision (a), provides: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1108, subd. (a).) Evidence Code section 352, in turn, gives the trial court discretion to exclude evidence “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
On appeal, a trial court’s decision to admit evidence of the defendant’s commission of other sexual offenses pursuant to Evidence Code sections 1108 and 352 is subject to reversal only if the trial court acted in an “arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
As an initial matter, we address appellant’s claim that Evidence Code section 1108 and the jury instruction following it, CALCRIM 1191, are facially unconstitutional under federal law. The California Supreme Court has in no uncertain terms rejected this argument, holding that “the trial court’s discretion to exclude propensity evidence under [Evidence Code] section 352 saves section 1108 from defendant’s due process challenge.” (People v. Falsetta (1999) 21 Cal.4th 903, 917; see also People v. Reliford (2003) 29 Cal.4th 1007, 1016 [finding “no constitutional error” in the jury instruction following Evidence Code section 1108].) Accordingly, without further need for discussion, we reject appellant’s facial challenge and turn to the issue of whether the trial court in this case properly exercised its discretion under Evidence Code section 352 to admit evidence of appellant’s propensity to commit sexual assaults.
Appellant argues that, even if Evidence Code section 1108 is facially constitutional, admission of the propensity evidence was more prejudicial than probative in this case under Evidence Code section 352. He reasons that the uncharged prior sexual assaults occurred remotely in time, were emotionally provocative and inflammatory, and were cumulative. In particular, appellant argues that the evidence relating to G.A. was “uniquely inflammatory [in] nature” because it was remote in time and suggested “appellant manipulated and sodomized a member of his own family who was also entrusted to him as the much older brother in a large struggling family.” In addition, appellant argues the evidence relating to both G.A. and B.G. was “entirely cumulative,” given that the other victims whose complaints were charged in this case “essentially corroborated each other in many respects.”
We reject appellant’s arguments. Evidence offered under Evidence Code section 1108 is not excludable under Evidence Code section 352 unless “the probability that its admission will . . . create substantial danger of undue prejudice . . . substantially outweighed its probative value concerning the defendant’s disposition to commit the sexual offense or offenses with which he is charged and other matters relevant to the determination of the charge.” (People v. Soto (1998) 64 Cal.App.4th 966, 984, quoting Historical Note, 29B pt. 3, West’s Ann. Evid. Code (1998 pocket supp.) foll. § 1108, p. 31 [emphasis added].) Here, as the trial court recognized, appellant committed the prior uncharged sexual offenses, like those charged here, against vulnerable young boys. Each of the victims was a young male abused when left alone with appellant and entrusted to his care as either a foster parent or older brother. And while a significant length of time passed between appellant’s prior offense against G.A. and his current offenses, we do not find it so great as to render admission of the evidence unduly prejudicial, particularly given the similarity of the offenses. (See People v. Soto, supra, 64 Cal.App.4th at p. 991 [“the passage of a substantial length of time does not automatically render the prior incidents prejudicial”]; People v. Harris (1998) 60 Cal.App.4th 727, 739 [“ ‘staleness’ of an offense is generally relevant if and only if the defendant has led a blameless life in the interim”].)
We also note the trial court here gave extensive instructions to the jury regarding the limited use of this evidence. Specifically, the trial court advised the jury as follows:
“The People presented evidence that the defendant committed the crime of lewd act on a child under 14 years of age that was not charged in this case. This crime is defined for you in these instructions. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offense. . . . [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offense, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit, and did commit, [a] lewd act on a child under the age of 14, as charged here. [¶] If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of [a] lewd act on a child under the age of 14. The People must still prove each element of the charge beyond a reasonable doubt.”
In addition to this detailed limiting instruction, the trial court permitted the defense to call several witnesses, including appellant, his first cousin, Ernie Basurto, and his friend for 33 years, Anna Kowalkowska, to provide testimony tending to rebut the uncharged allegations of sexual abuse made in this case. These actions by the trial court, we conclude, were sufficient to protect appellant against undue prejudice based on the admission of this evidence.
Under these circumstances, we believe the prejudice presented by the evidence of appellant’s prior acts of sexual abuse was not undue, but was merely the type inherent in all propensity evidence. (See People v. Soto, supra, 64 Cal.App.4th at p. 992; cf. People v. Harris, supra, 60 Cal.App.4th at p. 737 [“[p]ainting a person faithfully is not, of itself, unfair”].) The California Legislature, in enacting Evidence Code section 1108, has recognized that inherent prejudice and found it insufficient alone to render propensity evidence inadmissible. (See People v. Soto, supra, 64 Cal.App.4th at p. 992.) Accordingly, we conclude the trial court did not abuse its discretion in admitting this evidence.
III. Imposition of a Fine Pursuant to Section 290.3.
Finally, appellant claims remand to the trial court is necessary because the fine imposed against him pursuant to section 290.3, subdivision (a), was improper. Specifically, appellant contends that the trial court erred when computing the amount of the fine, and that his counsel rendered ineffective assistance in violation of his constitutional rights by failing to object to the fine based on his financial inability to pay it. We address each contention in turn.
A. Computation of the Fine.
Section 290.3, subdivision (a), provides in relevant part: “Every person who is convicted of any offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine . . . .”
Here, pursuant to section 290.3, subdivision (a), the trial court imposed a total fine against appellant of $9,300. Undisputedly, appellant was convicted of committing offenses that are among those specified in section 290, subdivision (c), rendering him eligible for imposition of the fine. However, appellant argues, and the prosecution concedes, that the trial court erred in calculating the amount of the fine. In particular, the prosecution agrees with appellant that the trial court erroneously computed the fine by relying upon the amounts specified in the version of the statute in effect at the time of trial ($300 for the first conviction and $500 for each subsequent conviction) rather than those specified in the versions of the statute in effect when the crimes were committed (prior to 1995, $100 for the first conviction and $200 for each subsequent conviction; after 1995, $200 for the first conviction and $300 for each subsequent conviction). As a result, the parties claim appellant should have been subjected to a fine of $4,900 rather than $9,300.
Appellant committed the crimes between June 1989 and May 1999. Accordingly, two versions of section 290.3 are relevant – the original version in effect when the statute was enacted in 1988, and the version of the statute in effect after its amendment in 1995, when the Legislature increased the amounts of the fine. (Stats. 1988, ch. 1134, § 1; amended Stats. 1995, ch. 91, § 121 (SB 975).)
We agree with the parties in this regard. (Collins v. Youngblood (1990) 497 U.S. 37, 42 (emphasis added) [“ ‘[A]ny statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.’ ”]; People v. McVickers (1992) 4 Cal.4th 81, 84 [“Commonly understood definitions of punishment are intuitive: there is little dispute that additional jail time or extra fines are punishment.”]. See also People v. High (2004) 119 Cal.App.4th 1192, 1196.) Accordingly, we conclude that the trial court erred in imposing a fine pursuant to section 290.3, subdivision (a), in the amount of $9,300.
B. Ineffective Assistance of Counsel.
One issue remains with respect to section 290.3. Appellant contends the trial court further erred by imposing the section 290.3 fine without first assessing his ability to pay it. Acknowledging, however, that he waived the right to argue this issue on appeal by failing to raise it below, appellant nonetheless contends remand is necessary because such waiver resulted from the ineffective assistance he received from counsel. Appellant reasons that his attorney was aware of his lack of assets, yet inexplicably failed to assert that fact as a defense to the trial court’s imposition of the fine.
“To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel’s performance fell below a standard of reasonable competence and that prejudice resulted.” (People v. Anderson (2001) 25 Cal.4th 543, 569.) Accordingly, “[e]ven where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., that, ‘ “ ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” ’ [Citations.]” (Ibid.) “When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citations.]” (Ibid.)
Here, appellant claims that, but for his attorney’s incompetence in failing to object to imposition of the section 290.3 fine based on his inability to pay, the trial court’s decision with respect to the fine would have differed. We agree.
As we previously set forth, section 290.3 expressly mandates imposition of the fine “unless the court determines that the defendant does not have the ability to pay the fine.” (§ 290.3, subd. (a).) “This language certainly indicates that consideration of the defendant’s ability to pay is a factor to be considered in imposing the fine.” (People v. McMahan (1992) 3 Cal.App.4th 740, 749.) The trial court, however, is not required to first determine the defendant’s ability to pay before imposing the fine. Rather, the defendant has the burden to “affirmatively argue against the application of the fine and to demonstrate why it should not be imposed—otherwise, the issue is waived.” (People v. Burnett (2004) 116 Cal.App.4th 257, 262; People v. McMahan, supra, 3 Cal.App.4th at pp. 749-750.)
As our colleagues in the Fifth Appellate District aptly noted; “if the Legislature clearly intended to require the court to make a determination of ability to pay prior to its order, it could have used the words ‘provided’ or ‘subject to’ instead of ‘unless.’ Those words were not used.” (People v. McMahan, supra, 3 Cal.App.4th at p. 749.)
Here, the record reflects that the trial court made no findings on the record regarding defendant’s ability to pay the section 290.3 fine and that the defense made no objection at sentencing. Appellant did, however, submit a statement of assets, which the trial court relied upon in ordering that appellant would not have to pay $3,500 in indigent attorney’s fees. Appellant’s statement of assets clearly demonstrated his inability to pay those fees. As such, defense counsel should, without a doubt, have brought that evidence to the trial court’s attention when it was imposing the section 290.3 fine. Had defense counsel done so, we conclude, it is reasonably probable the trial court would have declined to impose it. (People v. Le (2006) 136 Cal.App.4th 925, 935-936 [concluding that the defendant received ineffective assistance from counsel who failed to object to the trial court’s erroneous calculation of a restitution fine].) As such, remand is necessary to permit the trial court to reconsider its decision in this regard.
DISPOSITION
Consistent with the opinions stated herein, this matter is remanded to the trial court for further proceedings with respect to imposition of the fine pursuant to section 290.3. In all other regards, the judgment is affirmed.
We concur: Pollak, Acting P. J., Siggins, J.