Opinion
D060324
10-13-2011
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY FLETCHER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. RIF154250)
APPEAL from a judgment of the Superior Court of Riverside County, Bernard Schwartz, Judge. Reversed.
A jury convicted Anthony Fletcher of three counts of lewd and lascivious acts upon a female under age 16 and 10 years younger than the defendant (Pen. Code, § 288, subd. (c)(1)), and three counts of annoying and molesting a female under age 18 (Pen. Code, § 647.6, subd. (a)). The court sentenced Fletcher to five years of formal probation and 365 days in the county jail. Fletcher appeals, contending that the trial court committed reversible error by admitting irrelevant and unduly prejudicial evidence against him. We agree with Fletcher and reverse the conviction.
FACTS
Anthony Fletcher worked as an officer for the Riverside Police Department ("department") for seven years. During this period, the department disciplined him three times for aggression against fellow officers and use of excessive force. Fletcher was married and father to a teenage daughter.
Over a period of about a year and a half, beginning when she was 15 years old, Fletcher would enter his daughter's bedroom early each morning and fondle her breasts and buttocks. His daughter would pretend to be asleep whenever he did this. She attempted to stop Fletcher by wearing a sports bra to bed, but he would often move it and molest her anyway. Fletcher's daughter estimated that Fletcher molested her between 40 and 100 times. Fletcher never tried to touch any other part of her body or force himself on her. She kept the incidents a secret in order to protect her mother and keep the family together.
Fletcher's daughter later became aware of marital problems between her parents after her mother discovered that her father was having an affair. Upon learning that her mother was planning to stay in the marriage, the daughter disclosed the molestation to her friend and her mother. Her mother did not report the incident to police immediately because she feared that the department might protect Fletcher, and instead sought a temporary restraining order and a divorce.
The next day, upon learning of the accusation, Fletcher turned in his guns to the department and left a telephone message with his supervisor tendering his resignation, effective immediately. Fletcher then drove toward Reno, Nevada, where his mother lived. He returned to Riverside after the woman with whom he had been having the affair convinced him to turn around. On his way back, Fletcher called his supervisor again and retracted his resignation.
Two months later, Fletcher was arrested and booked on charges of molestation and lewd and lascivious acts against his daughter.
PROCEDURAL HISTORY
I
TESTIMONY OF FLETCHER'S DAUGHTER, DAUGHTER'S FRIEND, AND EX-WIFE
Fletcher's daughter testified against him at the trial. On cross-examination, she stated that upon learning of her father's affair she did not want her parents to work it out or want her father in the house at all. She also stated that she did not think her mother would take her father back if she told her about the molestation, and that she did not want her mother to take her father back.
Fletcher's ex-wife also testified against him. She testified that she, Fletcher, and their daughter began seeing a counselor after she learned of Fletcher's affair in an effort to save the marriage. However, their daughter was not aware of Fletcher's affair at the time, and never mentioned the molestation to her counselor. Fletcher's daughter testified that she knew that the counselor would have been required to report the molestation by law and that telling the counselor would have likely ended the molestation.
Fletcher's ex-wife testified that after she told her daughter about the affair, her daughter became distressed, took a family photo off the wall, and said that she wanted to tear it up. Immediately thereafter, she told her mother about the molestation. Fletcher's ex-wife immediately decided to divorce him upon learning about the molestation because she "had no other choice, because [she] needed to protect [her] daughter."
Fletcher's daughter's friend also testified against him. She testified that Fletcher's daughter told her about the molestation the day before she told her mother. The friend testified that Fletcher's daughter asked her not to say anything because she did not want to break up her family.
The next day, Fletcher's daughter called her friend twice. In the second phone call, she said that she had learned of her father having an affair and that she was going to tell her mother about the molestation because, "[if] her father wasn't interested in keeping the family together, then she wasn't going to be." According to Fletcher's daughter, she told her friend of her decision during the first phone call.
II
EVIDENCE OF PRIOR UNCHARGED ACTS BY FLETCHER
Outside the presence of the jury, the district attorney attempted to introduce evidence of three prior uncharged offenses against Fletcher that resulted in him being disciplined by the department. In the first incident, Fletcher was charged with the use of excessive force; he was later cleared of all charges. In the second incident, Fletcher was disciplined for an altercation at work with another officer. In the third incident, Fletcher was reprimanded for aggressiveness toward another officer. None of the incidents involved sexual activity or a criminal prosecution of any kind.
The district attorney argued that this evidence was necessary to prove Fletcher's knowledge of the department's disciplinary procedures and that he acted differently in the face of this accusation compared with others. In the three earlier incidents, Fletcher submitted to the disciplinary process, while in the charged instance he immediately resigned and fled the state. The district attorney argued that this was relevant to prove Fletcher's cognizance of his guilt.
Defense counsel argued that the incidents were irrelevant to the case at hand because the prior incidents were disciplinary actions for altercations between coworkers, not accusations of child molestation or any other criminal sexual misconduct, and argued that the fact that none of the previous incidents involved sexual misconduct of any kind barred their admission. Counsel argued that the nature of the charges were so different from the charged incidents that they would offer no probative value and would be unduly prejudicial and confuse the jury.
The trial court held the evidence relevant to prove Fletcher's knowledge of the department's disciplinary process and that his lack of conformity with his previous actions in the face of professional discipline could be relevant to show consciousness of guilt. The court also held that introducing all three prior incidents would be unfairly prejudicial to Fletcher, and limited the district attorney to introduce only one prior incident. The court reasoned that, "it would be too much prejudice to allow all three incidents as against Mr. Fletcher." The district attorney agreed to sanitize the prior incidents by not specifying the nature of the charges, asking Fletcher whether he had ever been through the disciplinary process before and, when he did, whether he left town in the face of the accusation.
In open court, the district attorney asked Fletcher if he had ever been through the disciplinary process at the department, and Fletcher replied that he was familiar with the disciplinary process after an incident in 2006. After a series of questions involving the specifics of the disciplinary process, Fletcher stated that he did not know about the specific procedures at the time he tendered his resignation because he did not think about them that day.
After an unreported sidebar conference, the district attorney began asking about the details of a second disciplinary incident involving the altercation between Fletcher and another officer. After concluding this line of questioning, the district attorney asked about the third disciplinary incident in which Fletcher was aggressive with another officer. As a result, all three incidents, and the nature of each one, were brought before the jury.
Later, outside the jury's presence, the court explained why it allowed the district attorney to ask Fletcher about the two other incidents:
"The reason given was that when asked about his knowledge about the prior disciplinary procedures, the answer given by Mr. Fletcher was that he did not know that night, though of course he did say he was aware of it, but he did not know that night . . . . [¶] 'As a result of that, it did appear to the court that it would be appropriate to allow [the district attorney] to go into the other areas, because again this would be the one occasion that had been limited to admissibility as it related to his knowledge of disciplinary procedures, and if there were other times it would be more apparent that he would have
knowledge of other options, or at least other processes that would be available."
The court explained that it had instructed the district attorney at sidebar to walk through each of the disciplinary incidents with Fletcher and the procedures involved so that they could be sure they were both referring to the same incidents. The court also stated that it instructed the district attorney to phrase his questions so as to get Fletcher to explain that he had been through the process before, that he was aware of his options, and yet chose a different path in this instance.
Defense counsel objected to the introduction of all three incidents into evidence on grounds of both relevancy and undue prejudice. The court confirmed that defense counsel preserved the issue by objecting earlier at sidebar.
The court asked both counsel if they would like a special jury instruction on the prior uncharged incidents, and both counsel said they were "just going to argue it." During closing arguments, the district attorney argued that Fletcher acted strangely when he learned that his daughter accused him of molestation because he immediately resigned upon learning of the accusation, despite knowing that he would be treated fairly from his three previous disciplinary procedures, and that this was evidence of his guilt because Fletcher did not flee the jurisdiction or resign in the earlier incident in which he was exonerated, indicating that he knew that he was guilty in this incident. Therefore, according to the prosecution, Fletcher acted differently in this case than in a case in which he was found not guilty. Defense counsel did not mention any of the prior uncharged incidents in his closing argument.
STANDARD OF REVIEW
A trial court has broad discretion to determine the admissibility and relevancy of evidence, and on appeal we find reversible error if the trial court's exercise of discretion was arbitrary, capricious, or patently absurd resulting in a miscarriage of justice. (People v. Williams (2009) 170 Cal.App.4th 587, 606.) We will disturb a trial court's determination of whether an item of evidence was unduly prejudicial only if the prejudicial effect clearly outweighs its probative value. (People v. Brown (1993) 17 Cal.App.4th 1389, 1396.)
DISCUSSION
I
EVIDENCE ADMITTED UNDER EVIDENCE CODE
SECTION 1101, SUBDIVISION (B)
Fletcher contends that the three prior uncharged incidents were irrelevant to the charges and should have been prohibited. We agree.
All relevant evidence is admissible unless prohibited by statute. (Evid. Code,§ 351.) Relevant evidence includes evidence having "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.) In sexual assault and molestation cases, section 1108 permits evidence of a defendant's prior sexual misconduct, which is relevant to prove propensity to commit such an act. (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41 (Frazier).) All other evidence of prior bad acts is governed by section 1101. (§ 1101.)
All further statutory references are to the Evidence Code.
"Section 1101 states the general rule that evidence of character to prove conduct is inadmissible in a criminal case. . . . [¶] Section 1101 does not prohibit the admission of evidence of misconduct when it is offered as evidence of some other fact in issue, such as . . . knowledge." (Cal. Law Revision Com. com., 29B Pt. 3B, West's Ann. Evid. Code (2009 ed.) foll. § 1101, p. 222.)
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Section 1101, subdivision (b) permits the admission of prior uncharged misconduct to prove some fact other than a mere disposition to commit such an act such as knowledge, motive, or identity. (People v. Britt (2002) 104 Cal.App.4th 500, 505.) The prior bad act must be sufficiently similar to the act being charged in the proceeding in order to be admissible. (Frazier, supra, 89 Cal.App.4th at p. 40.)
When evidence is offered under section 1101, subdivision (b), the degree of similarity required for admissibility ranges along a continuum, depending on the purpose for which the evidence is received. (People v. Scott (2011) 52 Cal.4th 452, 470.) Prior bad acts to prove knowledge are allowed only when knowledge is an essential element of the crime charged. (29 Am.Jur.2d (2008) Evidence, § 447, p. 508; see, e.g., People v. Pijal (1973) 33 Cal.App.3d 682, 691 [where knowledge of the contents of a drug and intent to sell it were at issue, evidence of previous narcotics offenses were admissible to show his knowledge, motive, and intent to sell narcotics].)
Here, knowledge of disciplinary procedures was not an issue. The district attorney introduced the evidence of three prior bad acts only to establish Fletcher's knowledge of the disciplinary process used by the department. According to the district attorney, it was necessary to show this knowledge in order to prove that by resigning and fleeing to Reno, rather than submitting to the disciplinary process as he had in the past, Fletcher showed evidence of guilt. The three prior disciplinary incidents were not relevant as to the core issue of the case: whether Fletcher molested his daughter.
Even if the issue of Fletcher's knowledge was relevant to that issue, the prior incidents were not sufficiently related to the charged incident to be admissible. The prior incidents all involved internal disciplinary matters at the police department; the charged offense involved criminal sexual acts. Knowledge of the process for an internal affairs incident is not necessarily knowledge of the process for a criminal sexual charge, and in any case was not relevant to determining Fletcher's conduct regarding his daughter.
The three prior disciplinary incidents were irrelevant and therefore inadmissible under sections 1101, subdivision (b) and 210.
II
EVIDENCE ADMITTED UNDER EVIDENCE CODE SECTION 352
Even if the three prior incidents were relevant to his charges, Fletcher argues that the introduction of all three incidents was unfairly prejudicial to him and therefore the incidents should have been barred. We agree.
Evidence introduced under section 1101, subdivision (b), is still subject to a section 352 balancing test. Under section 352, the trial court has discretion to exclude evidence "if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice. . . ." (§ 352.) Undue prejudice does not necessarily refer to evidence that proves guilt. (People v. Walker (2006) 139 Cal.App.4th 782, 806.) Undue prejudice is found when evidence invokes an emotional reaction in the jury against the defendant and tends to cause the jury to decide the case on an improper basis. (People v. Hollie (2010) 180 Cal.App.4th 1262, 1276-1277.) 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. (Hollie, supra, at p. 1277.)
"The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense." (People v. Zepeda (2001) 87 Cal. App. 4th 1183, 1211.) The more tenuous the connection between the two, the less probative and more unduly prejudicial they are likely to be. (Ibid.)
Here, Fletcher's three prior disciplinary incidents were unduly prejudicial and lacked any probative value of his guilt in this case. They were introduced to show that Fletcher was familiar with the department's disciplinary process and to compare his behavior in those instances with his behavior in the present case. However, Fletcher had already admitted during his testimony that he was familiar with the process after a prior incident. Therefore, introduction of all three incidents was not necessary to show his knowledge, negating any probative value the incidents might otherwise have had.
Additionally, any probative value the introduction of all three incidents might have had was related to a tertiary issue in the case. The prior incidents were not similar to the charged offense, and had no probative value in that regard. The trial court initially held so prior to Fletcher's testimony, stating that it would be "too much prejudice to allow all three incidents."
The court's initial ruling on the matter was correct and should have been maintained. The evidence was clearly unduly prejudicial, and the court should have continued to hold as such.
III
THE TRIAL COURT'S ERROR WAS NOT HARMLESS
Respondent claims that any such error in this case was harmless because the case against Fletcher was strong and the jury would likely have found him guilty anyway. We disagree.
A trial court's error is not harmless, and therefore is grounds for reversal, if it is reasonably probable that the jury would have reached a more favorable result to the defendant had the evidence been excluded. (People v. Boyde (1988) 46 Cal.3d 212, 242.)
The case against Fletcher was not otherwise strong. Much of the district attorney's case against Fletcher involved his daughter's testimony and the statements his daughter made to her mother and her friend about Fletcher. The district attorney presented no other evidence of Fletcher's guilt. Fletcher's daughter's friend's testimony contradicted Fletcher's daughter's testimony in several areas.
Fletcher's daughter also had a motivation to lie, since she was angry with her father for cheating on her mother and admitted in open court that she told her mother with the intention of encouraging her mother to divorce her father, which casts serious doubt on her credibility. She only brought up the molestation after she learned that her mother was not planning to divorce her father over the affair. In short, the case was based on Fletcher's word against his daughter's with no other evidence of the molestation, and the jury had to decide whose version of events was more credible.
Evidence of the uncharged incidents, however, may have given the jury an unduly prejudicial impression of Fletcher as a police officer who regularly escaped punishment for infractions against others. Combined with the inflammatory nature of the charges against him -- molesting his own daughter -- the jury may have improperly decided the case on the basis of his character and history of disciplinary actions, rather than on the strength of the evidence against him as to the molestation. This is the type of unduly prejudicial evidence that section 352 is designed to keep out, and in this case caused harmful error.
DISPOSITION
The conviction is reversed.
HUFFMAN, Acting P. J. WE CONCUR: McINTYRE, J. AARON, J.