Opinion
G044106
08-02-2011
THE PEOPLE, Plaintiff and Respondent, v. GREG NELSON GOLSON, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald A. Jacob and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 07NF2756)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Frank F. Fasel, Judge. Affirmed.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald A. Jacob and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Greg Nelson Golson guilty of forcible rape and five counts of lewd act upon a child. The court sentenced him to state prison for 11 years four months. Defendant contends the trial court erred in its evidentiary rulings. We affirm.
I
FACTS
Marie B. was born in 1991. Defendant was born in 1957. Defendant is her mother's ex-husband. Her mother and defendant "got together" when she was seven or eight years old. Defendant weighed about 320 pounds.
The first time defendant did something sexually inappropriate to Marie B. was "the summer before freshman year," when she was "about 14." She had fallen asleep on the downstairs couch, and when she woke up, defendant was on top of her. Marie B. told defendant to stop a couple of times, but he did not. Defendant had one hand on each of her upper arms. She was asked what happened next and responded: "He finished, and he went to the bathroom and I went upstairs."
The next incident was a few months later while Marie B. was still a freshman. Marie B. was upstairs in her room talking on the phone. She pretended she was asleep when she heard someone coming. She was supposed to be asleep, and did not want her phone taken away. She said defendant grabbed her breast under her clothing. She does not know how long he stayed, but at some point he left.
At first, Marie B. did not tell anyone what was going on. During trial, she was asked why she didn't. She explained she was starting at a new school and was scared, and "didn't want people thinking that [she] was some freak or something." She added she did not want "people not believing [her] and thinking [she] had issues."
After that, defendant had sex with Marie B. in her bedroom late at night. He held her down by her arms and put the weight of his body on top of her every time. He always wore a condom. These incidents increased during her freshman and sophomore years. During the summer after her freshman year, defendant had sex with her three or four times.
At other times, he touched her breasts and vagina, sometimes over her clothes, but usually under. Marie B. estimated between five and 10 of those touching incidents during the summer between her freshman and sophomore years of high school.
Marie B. turned 16 during her sophomore year. She was going out with friends more, and the incidents with defendant decreased after that. The last time he had sex with her was a month or two before she went to camp.
Marie B. told a few of her friends about the incidents. She gave her history teacher one of her poems which "talked about it," but she thinks "he thought it was, like, made up or something." During the summer of 2007, while at a church retreat in San Bernardino, she showed a friend, S.B. a page from her diary. That friend advised her to tell adults at the camp about the incidents. She did and shortly thereafter, there was law enforcement involvement.
Marie B.'s mother testified she was formerly married to defendant. She explained the sleeping arrangements at the time defendant was arrested in August 2007: "I slept upstairs in the bedroom. At that time for a majority of the prior two and a half years, he slept mostly on the couch. Or he came upstairs to bed when I got up to go to work. I would get up at about 5:30, 6:00 in the morning, and then he would come upstairs." She usually went to bed at 9:00 or 10:00 p.m. Sometimes noises bothered her, so she wore earplugs.
Marie B.'s Diary
Pretrial, defense counsel asked the court's permission "to introduce other portions of [Marie B.'s] diary" after the prosecutor requested permission to introduce one page. Counsel told the court the one page was misleading. He argued that Marie B. wrote about cutting herself for her boyfriend, that she was in a cult, and was bulimic. Counsel argued "Everything she does is dramatic," stating: "If you read this page in isolation, if you read one page in her diary — and we have got, you know, 170 pages. If you read one page, okay, it is very compelling. But if you read the entire diary, if you read other pages, you can see this is the way she is." Counsel argued Marie B.'s whole diary revealed a girl who was "disturbed emotionally," and that the isolated page portrayed her in a false light "as a person [who] went to a church camp, listened to a sermon or speech, was praying, and then disclosed it."
The court stated: "So? I mean, so what? So what's drama? It is elliptical and vague in any event. At this point in time, it certainly is. It is not something for the jury to consider. [¶] You know, drama — a 16-year-old drama queen, if that's the right terminology. I don't know. Why is that probative? It is not at this point in time. I am not convinced with the offers of proof." The court denied the defense's request, finding the remainder of the diary did not "give context" to the portion which was admitted. But the court told counsel that, depending on the state of the evidence as it was admitted, some other portions of the diary might later be admitted. The court stated: ". . . I don't know if it becomes relevant later or not."
The diary excerpts were on the one page, page 40, and marked as exhibit 1, and, although it is not clear whether it was sent into the jury room during deliberations, the exhibit was later admitted into evidence. The exhibit reads: "Dear Diary [¶] How long can a man who is 50 be locked up with a conviction of statutory rape & molestation? How do you tell the man you love every night after everyone goes to sleep your own stepdad touches you in ways he himself, your boyfriend hasn't? How do you get rid of this dirty feeling? How many showers must you take? How many tears must you shed? How long does this have to happen? 3 years? 4 years? More?" At the prosecutor's request, without objection by the defense, the court redacted the remainder of page 40, which reads: "I don't deserve L.J. If he found out what I've done . . . How he[']s touched me . . . He'd find out why I cut . . . I can't let that happen. He'd leave me. I need him. I love him. I know I have to tell him—but how? Write him a poem, send him a message, give him this book, record it, tell him to his face, have a friend tell him? How? I need help please give me an answer. Does everyone go through this? Or is it my fault? How does it end? Kitty[.]" It appears from the record that the redacted portion of page 40 was shown to both Marie B. and her friend by the prosecutor during trial.
At one point, defense counsel requested he be permitted "to go into" approximately 22 pages of the diary since the prosecutor was allowed to question about page 40. Counsel said the additional pages placed page 40 into context: "[Y]ou take one page out of a diary. But if you look at what she says the pages before it, like 36, 'I need you to love me.' 37, 'Dear Diary, I am scared. He is — L.J. is upset at me. No one notices me. I am bulimic.' And then, all of a sudden, two pages later, 'No one notices me,' and then she writes about the rape. [¶] [I]t is a reasonable interpretation . . . that she wanted to get attention." After giving a lengthy analysis of its reasoning, the court denied defense counsel's request, leaving open the possibility of later admission if it became probative during trial.
Annette M.
Annette M., born in 1970, is defendant's niece. When she was "12, 13," she was visiting her grandparents in Long Beach. She had walked there, but when she left it was dark, and defendant gave her a ride home. Defendant parked in a park and gave Annette M. a cigarette. He told her she was pretty, kissed her and put his hand down her pants. He "went through the underwear, too, and then he started fingering" her. She told him she would get in trouble if she didn't get home, and he drove her home.
The first question defense counsel asked Annette M. on cross-examination was whether or not she was taking any medication. The court sustained a relevance objection.
At sidebar, counsel informed the court he had a good faith belief the witness was on medication for mental illness. The court remarked the information would only be relevant if the witness's competency to testify were at issue, and counsel agreed. The court permitted questioning of the witness outside the presence of the jury. Annette M. said she was seeing a psychiatrist and was on three medications. One for "ADHD," one for depression and another for panic attacks.
After she testified, defense counsel stated: "The fact that she has been diagnosed with ADHD and depression, I think, that can affect her credibility." The court noted: "She has been responsive. She has had no difficulty responding to questions." Again, the court sustained the relevancy objection, but this time said it was "without prejudice."
Rebecca H.
The court excluded evidence regarding Rebecca H. In 1989, when Rebecca H. was four years old, and living with her father, the police were contacted regarding an incident involving defendant, who was the father's roommate at the time. Allegations were later retracted. Since then, the police report has been purged and the police officer involved has retired and has no memory of the incident. The court said it saw "a whole host of problems as far as the People attempting to introduce" evidence about Rebecca H. and that "it would cause an undue consumption of time" and "would be at a tremendous disadvantage" to the defense.
II
DISCUSSION
Annette M's Testimony About Molestation
Defendant contends the trial court improperly admitted evidence of his "alleged molestation of his niece." Respondent argues "its probative value outweighed its potential for prejudice, the prior conduct was similar to the current charges, and its admission would not result in juror confusion."
In a prosecution for sexual crimes Evidence Code section 1108, specifically allows the admission of a defendant's other sexual offenses as long as the evidence is not inadmissible under Evidence Code section 352. Penal Code section 288 is specifically enumerated as a crime to which Evidence Code section 1108 applies. (Evid. Code, § 1108, subd. (d)(1)(A).) "'Evidence of a prior sexual offense is indisputably relevant in a prosecution for another sexual offense.' [Citation.] In fact, it is precisely because such evidence is so highly probative that traditionally it has been subject to exclusion as improper character evidence in criminal trials. [Citation.] Recently, however, the 'Legislature has determined that the policy considerations favoring the exclusion of evidence of uncharged sexual offenses are outweighed in criminal sexual offense cases by the policy considerations favoring the admission of such evidence. The Legislature has determined the need for this evidence is "critical" given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial. . . .' [Citations.]" (People v. Yovanov (1999) 69 Cal.App.4th 392, 403.)
Section 352 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.) "Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that 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; People v. Cain (1995) 10 Cal.4th 1, 33.) For purposes of analysis, "'prejudicial' is not synonymous with 'damaging,' but refers instead to evidence that '"uniquely tends to evoke an emotional bias against defendant"' without regard to its relevance on material issues. [Citations.]" (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
People v. Harris (1998) 60 Cal.App.4th 727, offers some useful guidance in evaluating a case under Evidence Code section 1108. The court suggested the following factors were relevant to evaluating the admissibility of prior sex crimes under Evidence Code section 1108: the inflammatory nature of the evidence, the probability of confusion, the remoteness in time of the uncharged acts to the charged crime, the consumption of time, and the probative value of the evidence, especially as to the degree of similarity. (Id. at pp. 737-740.)
Overall, we find these factors, taken together, preclude a finding that the trial court abused its discretion. While any sex crime against a child is horrible, in the context of such crimes, the acts involved were not so shocking or violent as to unduly inflame the passions of the jury, particularly a jury which had been selected with the nature of the charged crime squarely in mind.
As to confusion, we do not find that likely in this case. The jury was instructed as to the use of uncharged sex offenses, the reasonable doubt standard, and the necessity of proof beyond a reasonable doubt. We find nothing in the record to suggest jury confusion.
With respect to remoteness, the act against defendant's niece occurred more than 20 years before the charged crime. This is remote, but we keep in mind that courts have found that sexual offenses as old as 30 years may be admissible. (People v. Branch (2001) 91 Cal.App.4th 274, 284.) Acts are not automatically precluded on that ground.
Regarding consumption of time at trial, we do not find that the testimony in question unduly took up the court's time. Accordingly, we do not find this factor weighs in favor of finding an abuse of discretion.
The last factor, probative value, weighs squarely on the side of the prosecution. "'Evidence of a prior sexual offense is indisputably relevant in a prosecution for another sexual offense.' [Citation.]" (People v. Yovanov, supra, 69 Cal.App.4th at p. 403.)
Evidence that he had previously acted opportunistically in committing a sexual act with a girl of a similar age, who is also in the family and who was also placed in his trust is directly probative. Taken together, the Harris factors weigh sufficiently in favor of the prosecution. Under the circumstances in this record, we cannot conclude the trial court abused its discretion.
Exclusion of Most of Marie B.'s Diary
Defendant argues his convictions should be reversed because he was not permitted to cross-examine Marie B. about the entire contents of her diary after the prosecutor was permitted to introduce excerpts from it. Respondent contends the trial court properly admitted relevant portions of the diary.
"Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence." (Evid. Code, § 356.)
"By its terms section 356 allows further inquiry into otherwise inadmissible matter only, (1) where it relates to the same subject, and (2) it is necessary to make the already introduced conversation understood. Thus it has been held: the court must exclude such additional evidence if not relevant to the conversation already in evidence. [Citations.]" (People v. Gambos (1970) 5 Cal.App.3d 187, 192-193.) "Section 356 is indisputably '"subject to the qualification that the court may exclude those portions of the conversation not relevant to the items thereof which have been introduced."' [Citations.] 'The rule is not applied mechanically to permit the whole of a transaction to come in without regard to its competency or relevancy . . . .' [Citation.]" (People v. Williams (1975) 13 Cal.3d 559, 565.) "A trial court's determination of whether evidence is admissible under section 356 is reviewed for abuse of discretion. [Citation.]" (People v. Parrish (2007) 152 Cal.App.4th 263, 274.)
Here the prosecutor moved to introduce only the portion of the diary related to abuse by defendant. Defense counsel sought to use all or some of the remainder to demonstrate how dramatic and emotional a person she is and to impeach Marie B. But counsel failed to articulate to the court the probative value of or how unadmitted portions of the diary might explain or clarify the admitted portion. The court's pretrial ruling clearly stated the court was open to permitting other portions, depending on the state of the evidence. Under the circumstances we find in this record, we cannot find the trial court abused its discretion in not permitting defendant to cross-examine Marie B. about other portions of her diary.
Exclusion of Evidence of Annette M.'s Medication and Psychiatric Condition
Defendant next contends the trial court erred in refusing to permit him to inquire of Annette M. about her psychiatric condition and medications. The Attorney General argues there was no error as the witness's competency was not at issue.
"[T]he trial court has discretion to admit or exclude evidence offered for impeachment on a collateral matter. [Citations.]" (People v. Mayfield (1997) 14 Cal.4th 668, 748.) "A collateral matter has been defined as 'one that has no relevancy to prove or disprove any issue in the action.' [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 9.)
Defendant cites People v. Newton (1966) 244 Cal.App.2d 82, to support his argument. The victim in Newton gave "confused and internally contradictory" testimony. (Id. at p. 88, fn. 4.) There is no indication of such a situation in the case at bar.
A trial judge may place appropriate limits on defense counsel's inquiry of a prosecution witness without running afoul of the Confrontation Clause in the Sixth Amendment. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.) "[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." (Ibid.)
Here counsel cross-examined the witness extensively. All of her responses appear to be appropriate to the questions. The trial judge noted she had no difficulty responding to questions. There is no indication in the record before us that Annette M. was incompetent or that her testimony was somehow fabricated or confused as a result of her medication or mental condition. Under these circumstances, we cannot find the trial court abused its discretion.
Alleged Cumulative Error
Lastly, defendant contends cumulative error requires judgment against him be reversed. As we have found no error, this argument necessarily fails.
III
DISPOSITION
The judgment is affirmed.
MOORE, J. WE CONCUR: O'LEARY, ACTING P. J. ARONSON, J.