Opinion
NOT TO BE PUBLISHED
Super. Ct. No. F389073, San Luis Obispo County
S. R. Balash, Jr., for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Joseph P. Lee, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
David Eugene Grey appeals the judgment following his conviction for the misdemeanor offense of annoying or molesting a child. (Pen. Code, § 647.6, subd. (a).) Grey contends that the trial court erred by admitting evidence of prior sexual misconduct. He also claims instructional error, and ineffective assistance of counsel. We affirm.
The judgment is appeal able to this court because Grey was tried for a felony as well as a misdemeanor offense. (See People v. Nickerson (2005) 128 Cal.App.4th 33, 36-38.)
FACTS AND PROCEDURAL HISTORY
Grey had been a teacher for over 35 years. In June 2006, his third grade class was watching a movie after returning from a field trip. Most of the students left the classroom for recess, but Carissa M. and a friend remained behind. Grey asked Carrisa's friend to go outside to see if teachers were in the playground. When Grey and Carrisa were alone, Grey locked the classroom door, picked Carrisa up, put her on a table, and kissed her by placing his tongue in her mouth twice. His tongue touched Carrisa's tongue. Carrisa told a friend that Grey "did bad stuff to me" and "put [me] on the desk and he licked [me]."
The same day, Carrisa's mother received at least six telephone messages from Grey. The mother had spoken to Grey on the telephone in the past, but the high number of calls that day was unprecedented.
After Carrisa's mother reported the incident to the sheriff, a detective arranged for her to make a pretext telephone call to Grey. During the call, Grey admitted kissing Carrisa on the head or cheek but not with his tongue. Two or three days later, Grey left a message apologizing for what happened, stating that he "broke the line."
Gabrielle R. testified that Grey touched her buttocks on three to five occasions when she was in his third grade class in 1990. She testified that, when she did well in class, Grey would give her a gum ball, pat her on the back, move his hand down to her buttocks, and rub the buttocks in a circular motion. The rubbing lasted one or two minutes and Grey's breathing would become heavier and deeper. Gabrielle reported the touching to her mother and others.
Grey testified that, when he sent his class outside for recess, the door closed and locked. Carrisa remained in the classroom, and he told her she would have to leave. When Carrisa did not leave, he picked her up, put her on a table, and again told her to go to the playground. He testified that Carrisa put her arms around his neck and hung from him as he walked her to the door. Grey admitted kissing Carissa once without his tongue going into her mouth. He admitted telling Carissa's mother in a telephone message that he had crossed the line, but was referring to a rule against touching students. He also admitted stating that he had "committed a sin," but was referring to hurting the mother's feelings. He testified that he may have patted Gabrielle and other students on the back, but never touched their buttocks.
Grey was charged with the felony of committing a lewd act on a child (Pen. Code, § 288, subd. (a)), and the misdemeanor of annoying or molesting a child (Pen. Code, § 647.6, subd. (a)). A jury acquitted him of committing a lewd act on a child and its lesser included offense of battery, but found him guilty of annoying or molesting a child. Imposition of sentence was suspended, and Grey was placed on three years formal probation conditioned upon serving 180 days in county jail.
DISCUSSION
No Error in Admitting Prior Misconduct Testimony
In a pretrial motion, the court ruled that testimony from Gabrielle regarding Grey's rubbing of her buttocks in 1990 was admissible under Evidence Code section 1101, subdivision (b) ("section 1101(b)") to show intent and a common plan, and admissible under section 1108 as a prior sex offense. Grey contends the evidence was inadmissible under both section 1101(b) and section 1108. We disagree.
All further statutory references are to the Evidence Code unless otherwise stated.
In relevant part, section 1101, subdivisions (a) and (b) provide: "(a) 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 . . . is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act." In relevant part, section 1108 provides: "(a) 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. . . . [¶] (d) As used in this section, . . . [¶] (1) 'Sexual offense' means a crime under the law of a state or of the United States that involved any of the following: [¶] (A) Any conduct proscribed by Section . . . 288, . . . or 647.6, of the Penal Code."
In general, evidence of a defendant's commission of an uncharged offense is inadmissible to show bad character or predisposition to criminality, but admissible to prove a material fact at issue, such as motive, intent, common plan, or identity. (§ 1101, subds. (a) & (b); People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) To be admissible under section 1101(b), the uncharged and charged offenses must be similar, with the degree of required similarity depending on the purpose for which the evidence is offered. (Ewoldt, at pp. 402-403.) In addition, evidence is subject to exclusion under section 352 when its probative value is substantially outweighed by the probability of undue prejudice. (People v. Cole (2004) 33 Cal.4th 1158, 1194-1195.)
As an exception to the general rule, section 1108 provides that evidence of a prior uncharged sexual offense is admissible in a sexual offense case to show that the defendant has a disposition or propensity to commit such crimes. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013; People v. Falsetta (1999) 21 Cal.4th 903, 915.) Such evidence of uncharged sexual offenses is also subject to exclusion under section 352. (Reliford, at pp. 1012-1013; see § 1108, subd. (a).)
Grey contends that evidence of the 1990 Gabrielle incident is inadmissible under section 1101(b) because it is not sufficiently similar to the charged offense to support the inference that the 1990 incident and the charged offense occurred as part of a common plan. He also contends that the evidence is inadmissible under both section 1101(b) and section 1108 because its probative value is substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (§ 352.)
To be admissible under section 1101(b) to show the existence of a common plan, the uncharged and charged offenses must have "such a concurrence of common features" that they "are naturally to be explained as caused by a general plan," and not merely a series of similar spontaneous events. (People v. Ewoldt, supra, 7 Cal.4th at pp. 402-403.) Grey asserts that rubbing buttocks and "French kissing" third grade girls are not sufficiently similar to support the inference that both were part of a common plan.
It is not necessary for us to decide whether the evidence was admissible to show a common plan because, as the trial court ruled, the evidence of the 1990 incident was admissible to show intent. To be admissible to show intent, the uncharged offense must be sufficiently similar to the charged offense to support an inference that the defendant probably had the same intent in each instance. (People v. Ewoldt, supra, 7 Cal.4th at p. 402.) The recurrence of a similar action tends to negate accident, inadvertence, or other innocent mental states in the commission of the charged offense. (Id., at pp. 402-403.) That level of similarity is satisfied in this case because both the uncharged and charged offenses involved inappropriate sexual touching, both victims were third grade students of Grey, and both incidents occurred in his classroom.
Grey contends that, even if admissible under section 1101(b) to show intent or a common plan and admissible as a sex offense under section 1108, the evidence should have been excluded because its probative value was substantially outweighed by the probability that it would cause undue prejudice. Grey argues that the 1990 incident was too remote in time to show a propensity to commit the charged offenses, the 1990 incident was not similar to the current offenses, and Grey was never convicted of a crime arising out the 1990 incident.
In making a section 352 determination of whether the probative value of evidence of an uncharged offense is substantially outweighed by the probability of undue prejudice, the court must consider the nature, relevance, and possible remoteness of the uncharged offense, the degree of certainty that it was committed, the likelihood of confusing or misleading the jurors, its similarity to the charged offense, its likely prejudicial impact on the jurors, and other factors. (People v. Falsetta, supra, 21 Cal.4th at pp. 916-917; People v. Harris (1998) 60 Cal.App.4th 727, 737-740.) We review a trial court's decision under the abuse of discretion standard, and will uphold the ruling unless the court acted in an arbitrary, capricious, or patently absurd manner. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Here, the trial court conducted an analysis of the probative value of the evidence of the 1990 incident and its potential for prejudice. The trial court noted that the uncharged and charged offenses were not identical but had similarities, and the uncharged offense had significant probative value in proving Grey's commission of the charged offenses. The trial court also ruled that the 1990 incident was not too remote in time to be relevant. There was no abuse of discretion.
Contrary to Grey's argument, the evidence of the uncharged offense tended to show his propensity to commit acts similar to the charged offenses. Both involved sexually provocative acts against young girls in an identical relationship with Grey. Both the 1990 incident and the charged offense involved children of the same age and status as students in Grey's class, and the use of a teacher's authority to compel compliance. (See People v. Soto (1998) 64 Cal.App.4th 966, 991; People v. Harris, supra, 60 Cal.App.4th at pp. 737-740.) In addition, although separated by 16 or 17 years, the passage of time did not significantly lessen the probative value of the evidence of the 1990 incident. Courts have concluded that even 20-year-old offenses are not too remote in time to require exclusion. (See People v. Waples (2000) 79 Cal.App.4th 1389, 1395.)
As Grey emphasizes, the absence of a conviction for any offense arising out of the 1990 incident increases the danger the jury may punish the defendant for the uncharged offense. (People v. Falsetta, supra, 21 Cal.4th at p. 917; People v. Ewoldt, supra, 7 Cal.4th at p. 405.) But, the record provides no basis to indicate that the jury did so in this case. The jury was instructed on the limited purpose for which it could consider the evidence, and the jury's acquittal of Grey on the felony charge indicates no desire to punish him more harshly because of the 1990 incident. In addition, the evidence of the 1990 incident was not more inflammatory than the evidence supporting the charged offense, and did not involve an undue consumption of trial time.
No Instructional Error
1. No Waiver or Invited Error
Respondent argues that all of Grey's instruction error claims were invited error "and/or" waived. We disagree. Penal Code section 1259 permits a reviewing court to consider a challenge to jury instructions affecting the defendant's substantial rights without a trial court objection, and respondent does not dispute that Grey's substantial rights were implicated. Also, the intentional effort to cause error required for an invited error is not shown by the record. (People v. Wicker sham (1982) 32 Cal.3d 307, 330, disapproved on another ground in People v. Barton (1995) 12 Cal.4th 186, 201.)
2. No Error in Instructing with Modified Version of CALCRIM No. 1191
Grey contends that the trial court erred by deviating from the pattern form CALCRIM No. 1191 instruction regarding evidence of uncharged sex offenses. The pattern instruction identifies the uncharged offenses, and states that they "are defined for you in these instructions." The version given by the trial court omitted the statement that the offenses "are defined for you in these instructions." Grey claims that the omission told the jury that the 1990 incident was necessarily a criminal act. We disagree.
In relevant part, the pattern form of CALCRIM No. 1191 states: "The People presented evidence that the defendant committed the crimes of . . . that were not charged in this case. These crimes are defined for you in these instructions." The version given by the trial court stated: "The People presented evidence that the defendant committed the crime of . . . Lewd Act Upon a Child or . . . Annoying or Molesting a Child that are not charged in this case for which he was not prosecuted."
Although not referenced in the version of CALCRIM No. 1191 given by the court, the elements of the specified offenses were, in fact, defined elsewhere in the jury instructions. The failure to remind the jury of this fact in CALCRIM No. 1191 was neither prejudicial nor significant. In evaluating a purported instructional error, we must look to the entire charge, not merely one part. (People v. Chavez (1985) 39 Cal.3d 823, 830.)
3. No Prejudicial Error in Instructing with CALCRIM No. 251
Grey contends that the trial court erred by instructing the jury with CALCRIM No. 251 stating that both of the charged offenses required specific intent. It is undisputed that the offense of annoying or molesting a child does not require a specific intent, only conduct that is "specifically motivated by an unnatural or abnormal sexual interest in the child." (CALCRIM No. 1122; see People v. Maurer (1995) 32 Cal.App.4th 1121, 1126.) As set forth in the bench notes to CALCRIM No. 251, the instruction should not be given in a case that involves both offenses requiring a specific intent or mental state and offenses that do not. (Bench Notes to CALCRIM No. 251 (2008 ed.) p. 66.) The error, however, was harmless. By suggesting that the offense of annoying or molesting a child required a specific intent, the instruction increased the People's burden of proof. Also, the court instructed the jury with CALCRIM No. 1122 which informed the court of the correct required mental state for the offense.
The version of CALCRIM No. 251 given by the court provides: "Every crime or other allegation charged in this case requires proof of the union, or joint operation, of act and wrongful intent. [¶] In order to be guilty of the crime of Lewd Act Upon a Child as charged in Count One or Annoying or Molesting a Child as charged in Count Two, a person must not only intentionally commit the prohibited act, but must do so with a specific intent. The act and the intent required are explained in the instruction for every crime or allegation."
4. No Error Regarding Disposition of Uncharged Offense
Grey contends that the trial court's failure to reveal the disposition of the 1990 incident in CALCRIM No. 1191 deterred the defense from presenting evidence on that matter. We disagree.
During trial, defense counsel argued that Grey was entitled to an instruction that the 1990 incident was presented to the district attorney, but the district attorney declined to prosecute. The court asked counsel to "work out language" and that the jury should not be left in the dark wondering what happened. Later, the trial court modified CALCRIM No. 1191 to inform the jury that Grey "was not prosecuted" for offenses arising out the 1990 incident. The record is silent as to whether this language was added on the court's initiative or was worked out by counsel. Whatever its source, however, the language revealed that the 1990 incident was never prosecuted.
In addition, there is nothing in the record to support Grey's claim that the expectation of a more specific instruction regarding disposition of the 1990 incident deterred him from presenting evidence regarding the disposition of the 1990 charges. Also, nothing in the record supports Grey's assumption that the trial court promised defense counsel any particular instruction on that matter.
No Ineffective Assistance of Counsel
Grey contends that he received ineffective assistance of counsel when his trial attorney failed to present opinion or reputation testimony to show a character trait inconsistent with guilt. We disagree.
To establish that trial counsel was ineffective, defendant must show prejudice from representation falling below the standard expected of a reasonably competent attorney. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218; Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Reasonable tactical choices are not considered ineffective assistance, and the decision whether to call certain witnesses is considered a matter of trial tactics "unless the decision results from unreasonable failure to investigate." (People v. Bolin (1998) 18 Cal.4th 297, 334; see People v. Lucas (1995) 12 Cal.4th 415, 437.) We conclude that the decision not to call character witnesses in this case was a reasonable tactical choice.
Grey does not identify any possible character witnesses or their likely testimony. Instead, he argues generally that counsel could have chosen from a group of fellow teachers, parents, relatives and others who later attested to Grey's good character and dedication to teaching in post-conviction letters to the probation department.
Trial counsel could have concluded that such testimony would not have been helpful to the defense. First, the defense strategy at trial was to admit Grey kissed Clarissa but deny that it was a "French kiss" or resulted from an unusual or abnormal sexual interest in the child. It is unclear how character witnesses would have advanced this strategy or impeached prosecution evidence. Second, there was no dispute that Grey was a dedicated and committed teacher. Grey himself described the length and breadth of his teaching career. Third, the cross-examination of character witnesses might have been damaging to the defense by producing unfavorable testimony that drew attention to the admitted fact that Grey was a demonstrative teacher who regularly touched and hugged his students.
The judgment is affirmed.
We concur: YEGAN, Acting P.J., COFFEE, J., Michael L. Duffy, Judge