Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCE252476, Charles W. Ervin, Judge.
HUFFMAN, J.
In this appeal, we reverse Christopher Sean Haiman's jury conviction for committing a lewd and lascivious act upon a child under the age of 14. (Pen. Code, § 288, subd. (a).) Although there may be more than sufficient evidence to support such conviction, the trial court's evidentiary rulings in admitting evidence of prior sexual misconduct and highly inflammatory child pornography under Evidence Code section 1108 combined to render Haiman's trial fundamentally unfair.
All statutory references are to the Penal Code unless otherwise specified.
PROCEDURAL BACKGROUND
In August 2005, Haiman was charged with one count of lewd and lascivious conduct upon a child under the age of 14, which allegedly had occurred when the daughter of one of Haiman's friends and coworkers stayed overnight at Haiman's residence on July 23, 2005. Attached to this charge were five allegations based on Haiman's July 18, 1994 sexual offense convictions: (1) that he had previously been convicted of section 288, subdivisions (a) and (b) within the meaning of the One Strike Law (§ 667.61, subds. (a), (c) & (d)); (2) that his convictions also qualified him for punishment under the Habitual Sex Offender Law (§ 667.71, subd. (a)); (3) that he had served a prior prison term for those convictions (§§ 667.5, subd (b), 668); (4) that the convictions constituted a prior serious felony conviction within the meaning of section 667, subdivision (a)(1); and (5) that the convictions also constituted four strikes under the Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12).
During pretrial proceedings, Haiman admitted the allegations so that trial before the jury would only be on the substantive lewd conduct charge and the court denied the prosecutor's request to consolidate a 10-count misdemeanor complaint charging Haiman with child pornography (§ 311.11). However, the court then granted the prosecutor's motion to admit evidence concerning the child pornography as well as Haiman's prior molests under Evidence Code section 1108.
Haiman had originally made a motion to sever the 10 counts the prosecutor represented would be filed together with the lewd conduct charge.
After a jury trial, Haiman was convicted as charged. At the beginning of the sentencing hearing, Haiman reiterated his admissions to the originally charged allegations and the trial court found true that he had suffered the alleged priors. The court sentenced Haiman to prison for a total of 80 years to life, consisting of 25 years to life under the one strike law tripled under the three strikes law to 75 years to life, plus five years for the mandatory serious felony conviction enhancement. The court stayed the terms imposed for the prior prison term enhancement and for the alternative sentencing under the habitual sexual offender law.
Haiman timely appealed, contending the trial court's admission of evidence of prior sexual conduct violated his federal due process rights to a fundamentally fair trial and the court also prejudicially erred in admitting highly inflammatory evidence of child pornography. Haiman further asserted that the court erred in failing to strike rather than stay the 75-year-to-life alternative sentence under the habitual sexual offender law. Because we agree the admission of the evidence of prior sexual conduct combined with the admission of the child pornography evidence was so prejudicial as to outweigh its probative value that it resulted in a violation of Haiman's constitutional right to a fair trial, we reverse the judgment.
Although our reversal renders it unnecessary to address the various claimed sentencing errors, we note for the court's benefit after retrial, that should Haiman again be convicted and similar allegations are found true, any alternative sentence imposed under section 667.71, subdivision (a) and any term imposed for a prior prison term enhancement should be stricken rather than stayed. (See People v. Johnson (2002) 96 Cal.App.4th 188, 208-209; disapproved on another point in People v. Acosta (2002) 29 Cal.4th 105, 134, fn. 13.)
FACTUAL BACKGROUND
Although Haiman does not challenge the sufficiency of the evidence to support his conviction, we set out the facts adduced at trial at some length to set the scene for our discussion of the alleged prejudicial effect of the other crimes evidence admitted by the trial court under Evidence Code section 1108.
Haiman, age 39, had met his wife, Carlotta Manning, who was 23 years old at the time of trial, and physically and mentally challenged to some degree, at a residential hotel in September 2001. Manning knew that Haiman was a registered sex offender based on having previously molested young girls, but continued their relationship because she believed his behavior had changed since those offenses. They moved in together, had a daughter, and finally married on January 26, 2004. Between May and July 2005, the couple lived in an apartment on Graves Avenue in El Cajon, California, and served as on-site managers of the complex.
Although she never officially changed her last name to Haiman, Manning was known by that name during her marriage and at the time of the incident in this case. We refer to her in this opinion as Manning to distinguish her from Haiman.
Before moving to the Graves apartment, the couple had lived at an apartment complex on Mollison Street in El Cajon and had become good friends with Todd D., his live-in girlfriend and her son, who lived at the same complex. Both families liked NASCAR racing. Todd additionally worked at Western Steel in San Diego with Haiman, who was an iron worker and foreman there. Although Haiman had disclosed to his employer and to Todd that he had to register as a sex offender, he had lied to them about why he had to register, telling them his offenses had involved consensual sex with a 16-year-old drug dealer rather than with having committed multiple acts of sexual misconduct against his then six-to-eight-year-old stepdaughter and her eight-to-nine-year-old best friend. Todd's and Haiman's families continued to socialize with each other after the Haimans moved to the Graves apartment.
Inside that apartment, the Haimans had a computer, which Manning used to play games and to chat with friends on the Internet. To Manning's knowledge, Haiman used the computer to search the Internet, download music, and look up NASCAR sites, race results and standings. Although the computer had a linewire sharing program, Manning did not know how to use it and believed that Haiman used it to download music for both of them. Manning also did not know how to download digital images from a camera onto the computer. Although she caught Haiman using the computer to look at little girls in bikini bathing suits one day, he turned off the computer when she expressed her displeasure. Even though she was somewhat concerned that he might be looking at child pornography because of his criminal history, Manning thought Haiman had changed and trusted and respected him enough not to monitor his computer usage.
During several weekends in July 2005, Todd's children, which included his nine-year-old daughter T. from a former relationship who was spending the summer with him, accompanied the Haimans to the NASCAR races at the Barona Speedway and stayed over night at their Graves' apartment. On the second weekend, which started Friday night July 22, 2005, the Haimans took Todd's son and daughter home with them so the children could accompany them to the NASCAR races the next day. After playing video games and watching television, Haiman went to bed in the couple's bedroom while the children went to sleep on couches in the living room. Manning stayed up to chat with her friends on the Internet. At around midnight, Haiman came back into the living room to watch television and Manning went to bed. A standing lamp in the living room and a light in the kitchen were both turned on at that time.
Unable to sleep, Manning got up to use the bathroom, which was just off the living room. As she came out of the bathroom and turned off the light, she observed something on the living room floor that caught her attention. She saw Haiman propped up on one hand over T., who was asleep lying on her stomach in shorts and a shirt on the living room floor by the couch. Haiman had his pants down and his penis in his other hand, which was touching the back of T.'s thighs near her buttocks. Although Manning was looking down at Haiman's back, she could see his front from a sideways angle in the light coming from the standing lamp and television which were still turned on. Freaking out by what she was observing, and believing he was trying to stick his penis in between the girl's legs or in her rear, Manning asked Haiman what he was doing. Haiman got up, pulled up his pants and left the room while Manning, disgusted and upset, went into their bedroom and slammed the door.
A short time later, Manning got on the computer near the kitchen to look up bus schedules to Arkansas, where she thought she might go to take their daughter to be near her father's family so Haiman could not do the same thing to her. At that time, Haiman was in the kitchen smoking and walking around. Todd's children were still asleep in the living room. Eventually, both Manning and Haiman returned to their bedroom and fell asleep.
The next day, Manning did not tell T. what had happened because she believed she had caught Haiman before he had done any "real damage," and she did not believe he would try to molest T. again. Later that evening, Manning and Haiman went with the children to the NASCAR races at Barona Speedway. When they returned to the Haimans' apartment after the races, Manning slept in the living room with the children and they went home the next morning. Manning did not tell Todd about the incident because she was afraid of his reaction to the news. Although she thought about calling the police, she did not have the courage to do so, was financially dependent on Haiman because of her disabilities, and she still had feelings for him and did not want him arrested in front of their three-year-old daughter.
The parties stipulated that because neither T. nor her brother had been awake during the incident or possessed any knowledge about whether it occurred or not, neither child would be called as a witness at trial.
Later that evening, at about 6 p.m., the Haimans' church group, called "Homeless to Homeowners," met at their apartment for its regular Sunday meeting, which rotated among the various members' homes. While the group's reverend spoke to the members, Haiman left the meeting with another member, Brent Bone, to help Haiman's sister move a hot tub. Based on the sermon's topic of taking responsibility for your actions, Manning started thinking about the incident with T. and her failure to tell T.'s father the real reason Haiman had to register as a sex offender. She then shared with two women in the group what she had seen Haiman do to T. the previous Friday night, and showed them a drawer in their bedroom filled with little girl's underwear that she had discovered in the dresser she shared with Haiman.
When Haiman and Bone returned to the apartment, Manning confided in Haiman that she had disclosed to the other church members what he had done to T. Haiman initially walked away from the apartment but then returned and asked the members to stay so he could talk to them. Crying, Haiman apologized to Manning, admitted what he had done and that it was wrong, and stated that he needed help so there would be no more victims. Haiman also said he did not want to lose his wife and daughter. The church members, who knew about Haiman's sex offender history, including his use of his computer to access Internet pornography sites, discussed the matter and decided they needed to get rid of anything that could trigger another episode.
Accordingly, members of the group poured out all the alcohol found in the house, bagged up the girl's underwear, threw it in a dumpster outside in the apartment complex, and removed the hard drive from the Haimans' computer in order to clean out the offending sites and put parental controls on it. Bone, who had knowledge of computers, took the computer tower containing the hard drive and $200 from Haiman to buy and install a new hard drive and operating system in the computer. Haiman also gave Bone some CD's. He told Bone not to turn the computer on or to look at what was on the existing hard drive and to destroy the CD's, which Bone understood contained pornographic images. The church group members advised Manning that she should stay with Haiman to give him support.
The next day, Bone bought and installed a new hard drive and operating system on the Haimans' computer and shredded the CD's, without looking at their contents. Later, on his way home from work, Haiman picked up the computer tower from Bone and brought it home, leaving the old hard drive there. which Bone planned to throw out.
Once the computer was up and running in the apartment, Manning got on the Internet to contact her friends. By that time, Manning was having second thoughts about the church members' advice that she stay there and support Haiman regarding the incident involving T. When Haiman would not discuss the situation further with her, Manning decided to get independent advice from two of her Internet friends about the incident. Both told Manning she needed to contact the police and after many hours chatting on the Internet, one of the friends called the El Cajon Police Department on Manning's behalf and obtained a detective's telephone number for Manning to call. At 4:35 a.m., Manning called the detective and reported the incident.
That morning at about 6:58 a.m., El Cajon Police Department detective William Guerin and his partner arrived at the Haimans' apartment, where they interviewed Manning and obtained consent to search. Manning's explanation of why she called the police and her description of the incident were consistent with the above evidence as well as her 911 telephone call. In their search, the officers seized the family computer tower, along with another computer found in the master bedroom closet, 16 CD ROMs, a digital camera, two VHS tapes, a paycheck stub for Haiman from Western Steel, and a telephone bill addressed to Haiman at the Graves' Avenue address. Although the officers also searched a dumpster in the apartment complex parking lot based on the interview with Manning, they found nothing as it had recently been emptied.
Manning then accompanied the officers to the police station where they audio-videotaped another interview with her. During this second interview, Manning explained she had been reluctant to contact the police because she was financially dependent on Haiman, feared she and her daughter would be left homeless if he were arrested and Haiman would be upset with her. After the interview, Guerin and another officer went to Western Steel to talk to Todd and to arrest Haiman. After Todd confirmed that T. had spent the night at the Haimans on the date Manning stated the incident had occurred, the officers approached Haiman. When Guerin asked him if he knew why the officers were there, Haiman replied, "288."
Later, based on other information received from Manning, Guerin went with another detective to Bone's residence to determine whether he still possessed the hard drive from the Haimans' computer. With Bone's permission, the officers seized the hard drive, which was in a cardboard box and took it to the police station's property room. The other detective subsequently retrieved the hard drive, computers and computer-related evidence seized in this case from the property room and took the items to the San Diego Regional Computer Forensic Lab (RCFL) for analysis, requesting the RCFL to specifically check the items for any pornography or evidence of child molestation.
Prior Acts of Sexual Misconduct
Pursuant to Evidence Code section 1108, the prosecutor was permitted to present the testimony of Catherine S., Bree B. and Patrick Lim, a special agent of the United States Naval Criminal Investigation Service who was on assignment to the RCFL, as well as evidence of Haiman's 1994 guilty pleas to prior sexual crimes against Catherine and Bree.
Twenty-one-year-old Catherine testified that between the ages of seven to nine, she was a classmate and neighbor of Bree, who was Haiman's stepdaughter. During that time, she spent a lot of time at Bree's home. She recalled that when she was eight or nine, Haiman had sat on a bed and had held her on his lap several times. He let her go when she told him that she would tell his wife. One night when Catherine was on a sleepover, Haiman called her into his bedroom, laid her on top of him on her back, and began rubbing her vagina over her clothes. When Bree came into the room, Haiman let her go and the girls later told Catherine's mother what Haiman had done. After this, Catherine started having bad dreams and began seeing a psychiatrist who prescribed sleeping pills because she could not sleep. Because her use of the sleeping pills for about nine to 11 years had caused memory loss, Catherine could not recall what she had told the investigators at the time the earlier misconduct occurred.
Twenty-year-old Bree testified that when she was three or four years old, her mother married Haiman who began tickling and touching her vagina over her clothes the next year when they lived in an apartment in El Cajon with her two brothers. When she was about six years old, she and her family moved with Haiman to Navy housing near Doris Miller Elementary School in San Diego and the inappropriate conduct became more frequent, escalating from tickling and touching to oral sex as well as pornographic movie and magazine viewing. It was during this time that Catherine was her best friend and often spent time, including overnight stays, at the Haiman residence.
Bree explained that when she was in second grade, Haiman made her orally copulate him on numerous occasions while her brothers and mother were out of the house or sleeping. He also made her do to him what he had shown her in the pornographic movies and magazines. Sometimes Haiman would even grab her hair and move her head back and forth while he had his penis in her mouth. He told her not to tell anyone about the acts because she was "Daddy's girl," he loved her, it was a secret between them, a special bond between a father and a daughter, and her mother would not understand. Haiman also told Bree that he would be sent away for a long time if she told her mother about their conduct.
In addition to the oral copulations, during which Haiman ejaculated each time, he would often put his hands on Bree's vagina, anus and mouth. When Haiman tried to insert his finger inside her vagina, Bree would scream and he would stop, only to try again later. He would then stick his finger in her anus and touch it with his penis. He even tried to insert his penis and a vibrator in her anus and when unsuccessful, made her sodomize him with the vibrator.
Bree testified that the above described conduct occurred in their home over several years and that one time Haiman even took her to the captain's quarters of his naval ship and made her orally copulate him. She did not tell anyone about the conduct for a long time as she believed what Haiman was doing was a normal way to show affection to a daughter. After a while, however, she became uncomfortable, did not like what he was doing and wanted it to stop. Then after she saw Haiman tickle Catherine over her clothes at her armpits, breasts, insides of her legs and move up, placing her on his lap, Bree became jealous because she thought it was behavior that was supposed to be special between a father and daughter and told Catherine that Haiman had also touched her in private places. That is when the girls told Catherine's mother about Haiman's conduct.
Bree stated that because of Haiman's behavior she had been in unhealthy relationships, has low self-esteem, does not communicate well, is often depressed and was suicidal for a period of time.
The prosecutor then introduced into evidence a two-page change of plea form dated July 18, 1994, which showed that with regard to Catherine and Bree, Haiman had pled guilty to two counts of forcible lewd conduct under section 288, subdivision (a) and two counts of lewd conduct against a child under 14 years of age under section 288, subdivision (b). The document also showed that Haiman had admitted to committing substantial sexual conduct with a child as described in section 1203.066, subdivisions (a)(8) and (9) with regard to three of the counts and that he had occupied a position of trust. In exchange for his plea, the prosecutor had dismissed several remaining charges and allegations against Haiman and had accepted his stipulation to be sentenced to state prison for 12 years.
Lim next testified extensively about examining the various computers, CD's, hard drives and other materials seized from Haiman's apartment and Bone's residence that had been brought to the RCFL to be analyzed for questionable images, specifically photographs, pictures, animations, or digital movies of apparent underage minors in sexually suggestive or explicit poses. Although Lim did not find any questionable images on the hard drive inside the computers taken from the Haimans' apartment, he found 73 questionable movies plus seven questionable still images on the hard drive taken from Bone's residence that had originally been in the Haimans' home computer. All of the movies were found to be associated with directories on a linewire program that had been installed on the Haimans' main home computer's original hard drive in May 2005. Lim also found that a photograph of T., which had been taken of her at the Barona Speedway, was being used as "wallpaper" for the original hard drive.
Lim further explained that Linewire is a peer-to-peer sharing program which allows users to access other computer files by Linewire subscribers, and is commonly used to share music, movies and child pornography. Lim's examination revealed that the program on the original hard drive had been run at least 30 times between June 24, 2005 and July 24, 2005, the day after the incident with T., and the search terms used for video files had included "kiddy," "sex," "Lolita," "pedo," and "PTHC," an abbreviation for "preteen hard core." One of the movies downloaded from Linewire on the day after the incident with T. was entitled, "Drunk Young Girl Being Molested While Sleeping." The movie was subsequently played in its entirety for the jury.
In his investigation, Lim also found on a recordable CD burned on May 28, 2005, 30 digital movies containing questionable images and a directory of titles associated with each movie. One movie entitled "pedo-10yd.willingdaugherpthc," showed close-ups of the genital area of a white female who appeared to be 10 years old or younger, her nude body, and her engaging in sexual intercourse with someone who appears to be an adult male. After viewing the movie in total, Lim described it as showing an explicit sexual act with a young girl, noting "[a]t first the adult male, the male you can never see his face. All you can see is his waist area and his hands. You never see his shoulders or upper body or face. At one point he is lying on his back and the girl is on top of him engaging in sexual intercourse. Later in the video, the girl is lying on her back and the man is again engaging in sexual intercourse with her. At the end of the video, you see a man remove his penis from her vaginal area and ejaculate on her stomach." Lim stated that this movie was similar to most of the other movies on the CD as well as to many of the 73 digital movies found on the original hard drive.
Lim additionally noted that both the original hard drive and the new one installed on July 25, 2005, had two user accounts and email addresses, one set up for Haiman and the other for Manning, plus the necessary hardware to access the Internet. In the Internet history and log files on the original hard drive, Lim found that on January 6, 2005, a Google search had been made for "Kids" and "Porn," and that on February 20, 2005, a user had searched both Google and Yahoo for "preteen plus mod[el]s."
DISCUSSION
The major thrust of Haiman's appeal is that the trial court prejudicially erred in admitting evidence of prior sexual misconduct via the testimony of Catherine, Bree and Lim under Evidence Code section 1108. Although he stipulated to the admission of the change of plea form from his 1994 convictions and recognizes that Evidence Code section 1108 permits evidence of prior sexual misconduct to show the propensity of a defendant to commit similar sexual crimes in a current case, Haiman argues that the trial court abused its discretion under Evidence Code section 352 in allowing Catherine and Bree to testify to the "full spectrum" of what occurred in 1994 rather than limiting their testimony to just the facts of his prior convictions. He claims that because of the girls' unlimited testimony, the court was required to give the jury additional instructions as to the elements of other crimes of which he was not convicted, which together with the entirety of the girls' evidence, created such a prejudicial effect that his constitutional right to due process was violated.
Haiman further contends that the court likewise prejudicially erred and violated his due process rights when it allowed Lim's testimony and the admission of a digital movie concerning misdemeanor child pornography counts filed separately against Haiman in another criminal complaint that the prosecutor had sought to join with this case. Haiman argues that the cumulative effect of the improperly admitted evidence and additional jury instructions given in this trial on the central issue of whether Manning had observed a "touching" of T. by him when she walked out of the bathroom the night of the incident rendered his trial fundamentally unfair.
As we explain below after setting out the background facts concerning the pertinent evidentiary rulings, instructions, and law, we agree that the admission of the propensity evidence in this case denied Haiman a fundamentally fair trial.
A. Background
When the prosecutor sought in limine to introduce Catherine's and Bree's testimony as evidence of prior sexual assaults based on Evidence Code sections 1101 and 1108, defense counsel objected, arguing that the girls' testimony would so inflame the passions of the jury "that they will shut off at that point, and not listen to the evidence and primarily convict [Haiman] based upon his prior conviction." Counsel claimed that the introduction of this evidence would deprive Haiman of a fair trial and lighten the prosecution's burden of proof.
In ruling on the motion, the trial judge found the evidence relevant and reviewed the factors set forth in the People's motion in its trial brief to admit the girls' testimony to determine whether the evidence was unduly prejudicial. In doing so, the court noted "with respect to similarity, the prior acts involve children of similar ages of the victim in this case. The prior acts involve sodomy; in part, against a stepdaughter. [¶] In this case, based on what I understand in the People's trial brief, the victim was lying on the floor, stomach down, was asleep. And this defendant was attempting to place his penis between her thighs, and that sounds to be very similar to the other acts." The court found the factor of remoteness not to be a problem because of Haiman's prison term and the fact the victims were not then little children, which would cause confusion or distraction.
Regarding prejudice, the court found the evidence would benefit and assist the jury "by knowing of [Haiman's] prior acts, whether or not the defendant did indeed touch a victim"; that the testimony would only consume half a day lending to judicial efficiency; that there was a certainty that the crimes were committed and Haiman had been the perpetrator because of his guilty plea; and there was no burden on the defense because the "People are merely seeking to admit testimony of these two victims in the introduction of the plea form." The court also noted it would allow the introduction of the change of plea form.
The prosecutor then sought in limine to introduce evidence regarding the bifurcated pornography offenses in the instant case under Evidence Code sections 1101 and 1108, including the playing of the video portraying a drunk sexually touching a sleeping child, thumbnail photos, the Internet history logs and the Linewire file sharing program information. The prosecutor argued that the possession and sharing of child pornography showed Haiman's propensity to commit the charged crime as well as providing circumstantial evidence of his sexual intent in touching T. Defense counsel argued against the admission of the evidence asserting that it was not probative, the inflammatory nature of the evidence would result in undue prejudice, and its admission would violate state law and the federal constitution.
The trial judge tentatively overruled the defense objections, finding Evidence Code section 1108 is constitutional and the evidence of Haiman's possession of pornography was the type of other sexual crimes conduct that was admissible under that statutory scheme and case law subject only to Evidence Code section 352 analysis. In engaging in that balancing test in this case, the judge found a basic similarity "between the facts in this case and the acts attributed to the defendant, and those in some of the videos that [he had] observed [and noted ] there is similarity, at least as relates to some of this information, and particularly video number 1, and that is the picture of the child who appears to be asleep or something during an act that is committed against her." The judge then found that because "these things were downloaded and stored at or around the time of the commission of this offense. They do appear, at least in part, to be contemporaneous. So I don't think there is any issue concerning remoteness." Again, the trial judge did not believe the evidence would cause confusion or distraction or mislead the jury and commented it would give a limiting instruction that he would prepare.
The judge then stated:
"Prejudicial impact, certainly these images, based on our viewing them, certainly they are disturbing. They are shocking. I don't think that they do evoke necessarily an emotional bias against the defendant as an issue. I don't think they will have a tremendous affect on which this jury will be deciding, based on the limiting instruction that I will likely give. I do think that these are relevant to the issue of intent in this situation. Whether he did the act that he's alleged to have done . . . with the specific intent which is required. And I don't think that this issue concerning prejudicial impact is that which is asserted by the defendant today.
"As it relates to judicial efficiency, we're talking about one witness that purportedly will be the witness that we hear this morning, I believe with respect to [an Evidence Code section] 402 hearing. . . . In any event, one or two witnesses is not going to affect the efficiency of this court and this jury trial. . . . I believe that there is no burden on the defense. They were on notice, they have had the ability to prepare and to review these items.
"The last issue . . . is the availability of alternatives, and I have well considered that over the evening. And as you might have understood from my preliminary comments just now, I believe some of this information should be admitted, but clearly not all of it. And perhaps some of it should be shortened."
The court noted it would not make any final ruling until after viewing several more videos and considering the evidentiary hearing. Subsequently after doing so, the trial judge stated he was satisfied the People had met their burden of showing there was a degree of certainty that Haiman had possessed child pornography for admission of the computer materials under Evidence Code section 1108. The court then invited comments from counsel as to the extent of what would actually be allowed.
The prosecutor noted he was only requesting that 10 of the "70 some odd videos" be admitted and represented he would work with defense counsel to tailor those in number and length, as well as seeking the admission of the Internet history logs, the thumbnail graphic file information, and the file sharing program information, which he thought was relevant and necessary to show who was viewing this information on the computer. Defense counsel's position was that none of the material should come in but he would leave it to the court to limit the evidence.
The court ultimately ruled the materials would come in "in a very limited fashion." It would permit the prosecutor to play one of the 10 videos, video number 1 entitled "Drunk Young Girl Being Molested While Sleeping," which had been downloaded and viewed from Haiman's computer, after the incident, and would allow Lim to describe the contents of another video to the jury and testify that the others were of a similar type. The court also ruled the prosecutor could introduce the Internet history log from Haiman's original hard drive and the text of graphics from the thumbnail images, but not the images. As for the witness files Haiman had shared on the Linewire program, the court denied the introduction of the actual material shared but would allow Lim to testify that he had found the program on Haiman's original hard drive and could describe how it worked.
Later, in anticipation of Catherine's and Bree's testimony, the court advised counsel it was crafting a limiting instruction and needed to know whether the prosecutor intended to have them testify only with regard to Haiman's four prior sexual convictions or about other matters. When the prosecutor replied that the girls would be testifying about the conduct in general and essentially giving unlimited, "full spectrum" type of testimony, defense counsel objected and the court noted that "the record has been preserved as [to the defense's] ongoing objection."
During another break at trial, the court discussed with counsel the specific wording of the limiting instructions it had drafted with regard to Lim's testimony, the prior victims' testimony, and the admission of Haiman's earlier guilty plea and supporting documents. Defense counsel renewed his continuing objection to all the evidence except for the admission to the priors, arguing the other conduct evidence should not come in because Haiman was willing to stipulate to those priors. The court acknowledged the continuing objection and then commented it would give the limiting instructions after, rather than before, the witnesses' respective testimony because it was uncertain what exactly each would say. The court also noted it would indicate that the evidence was also "being accepted for the limited purpose to produce specific intent as well."
Just before Catherine and Bree testified, defense counsel again renewed his objection that their testimony was "unduly prejudicial and taking up court time, in the sense that the defendant has repeatedly offered to stipulate to these, to admit these. There's been testimony as to his prior conviction for this; [there] was reference to his prison commit to this by [one witness] this morning. [Haiman] stands ready, willing, and able to admit the prior convictions and admit . . . that the change of plea form, which was executed, which he signed . . . has 4 counts."
Before either girl's testimony, the trial judge told the jury it would give a specific instruction regarding their testimony after they had testified and again before jury deliberations, and that the jury was "to consider this evidence, that is the testimony of these two witnesses, consistent with this instruction that I will give you after they have testified." After Catherine testified, the court gave a limiting instruction under CALCRIM No. 1191 regarding the uncharged crime of Haiman committing a lewd act upon a child. The court reminded the jury before Bree's testimony that it would "provide [them] with other specific instructions as to how to consider [her] testimony." At the end of her testimony, the court again gave CALCRIM No. 1191, but identified as the uncharged crimes Haiman was alleged to have committed as "the crime of continuous sexual abuse of a child, forcible lewd act upon a child, lewd act upon a child, and harmful matters sent with intent of seduction of a minor." The court additionally admonished the jury as to the limited purpose of the change of plea form entered into evidence describing the prior charges for which Haiman had pled guilty.
The court specifically instructed the jury under CALCRIM No. 1191 that "[t]he People have presented evidence that the defendant committed a lewd act upon a child. This crime was not charged in this case. This crime is defined for you in other instructions you will receive. 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. [¶] Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. 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 a lewd act upon a child as charged in count 1. [¶] 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 upon a child as charged in count 1. The People must still prove each element of the charge beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose, except for the limited purpose of proving specific intent to commit the crime charged here."
Then, after Lim's testimony, the court again read CALCRIM No. 1191 with regard to Haiman allegedly having committed the crime of possessing matter depicting a person under 18 in sexual conduct, which was not charged in this case.
During closing argument, the prosecutor stressed "the evidence of Bree and Catherine and the child pornography possessed by [Haiman]," arguing that such evidence showed his propensity and specific sexual intent to commit the crime charged in this case. In defense counsel's closing, he pointed out that the real issue in this case was whether a touching occurred or whether Haiman had merely attempted to commit a lewd touching on T. Counsel argued that the bulk of the other sexual crimes evidence was not really pertinent to this issue and had merely been admitted to "dirt[y] the defendant up, make[] him hard to like. . . ."
The trial judge subsequently instructed the jury on the law of the case, including giving the jury lesser included attempt instructions for the charged offense (CALCRIM No. 460), and instructions regarding the limited purpose for which the other sexual crimes evidence if found true by a preponderance of the evidence could be used to show Haiman's propensity and specific intent to commit the current alleged crime of lewd and lascivious conduct upon a child under the age of 14. (CALCRIM Nos. 1191 "A" & "B.") In doing so, the court also defined the other crimes of possession or control of matter depicting sexual conduct of a person under the age of 18 (§ 311.11, subd. (a)), showing or sending harmful material to seduce a minor (CALCRIM No. 1140), continuous sexual abuse (CALCRIM No. 1120), lewd or lascivious act: by force or fear (CALCRIM No. 1111), oral copulation with person under 14 (CALCRIM No. 1080), and sodomy with person under 14 (CALCRIM No. 1090).
The limiting instructions given at the close of the case for the other sexual acts evidence based on Haiman possessing pornography varied from the instructions given after Lim's testimony. The earlier instructions told the jury it could consider the evidence for both Haiman's propensity to commit the current crime and also for proving specific intent to commit the charged crime whereas the final admonishment only stated the evidence could be used for proving specific intent.
B. The Applicable Law
Subject to Evidence Code section 352, Evidence Code section 1108 permits a jury to consider prior incidents of sexual misconduct for the purpose of showing a defendant's propensity to commit offenses of the same type and essentially permits such evidence to be used in determining whether the defendant is guilty of a current sexual offense charge. (Evid. Code, § 1108, subd. (a).) Although before Evidence Code section 1108 was enacted, prior bad acts were inadmissible when their sole relevance was to prove a defendant's propensity to engage in criminal conduct (see Evid. Code, § 1101 ; People v. Falsetta (1999) 21 Cal.4th 903, 911, 913 (Falsetta)), its enactment created a statutory exception to the rule against the use of propensity evidence, allowing admission of evidence of other sexual offenses in cases charging such conduct to prove the defendant's disposition to commit the charged offense. (Id. at p. 911.) The California Supreme Court has ruled that Evidence Code section 1108 is constitutional. (Falsetta, supra, at pp. 910-922.)
Evidence Code section 1108, subdivision (a), provides that "[i]n 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 [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." This section allows admission, in a criminal action in which the defendant is accused of one of a list of sexual offenses, of evidence of the defendant's commission of another listed sexual offense that would otherwise be made inadmissible by Evidence Code section 1101, subdivision (a). The prior and charged offenses are considered sufficiently similar if they are both sexual offenses enumerated in Evidence Code section 1108, subdivision (d)(1)(A) through (F). (People v. Frazier (2001) 89 Cal.App.4th 30, 41 (Frazier.)
Evidence Code section 1101 provides in relevant part: "(a) Except as provided in this section and in Section . . . 1108 . . ., evidence of a person's character or trait of his . . . character (whether in the form of . . . evidence of specific instances of his . . . conduct) is inadmissible when offered to prove his . . . 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, absence of mistake or accident . . .) other than his . . . disposition to commit such an act."
However, because Evidence Code section 1108 conditions the introduction of uncharged sexual misconduct or offense evidence on whether it is admissible under Evidence Code section 352, any objection to such evidence, as well as any derivative due process assertion, necessarily depends on whether the trial court sufficiently and properly evaluated the proffered evidence under that section. "A careful weighing of prejudice against probative value under [Evidence Code section 352] is essential to protect a defendant's due process right to a fundamentally fair trial. [Citations.]" (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314 (Jennings).) As our Supreme Court stated in Falsetta, in balancing such Evidence Code section 1108 evidence under Evidence Code section 352, "trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other . . . offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]" (Falsetta, supra, 21 Cal.4th at p. 917.) In evaluating such evidence, the court must determine "whether '[t]he testimony describing defendant's uncharged acts . . . was no stronger and no more inflammatory than the testimony concerning the charged offenses.' " (People v. Harris (1998) 60 Cal.App.4th 727, 737-738 (Harris).)
Evidence Code section 352 provides: "The court in its discretion may 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, or confusing the issues, or of misleading the jury."
On appeal, we review the admission of other acts or crimes evidence under Evidence Code section 1108 for an abuse of the trial court's discretion. (Kipp, supra, 18 Cal.4th at p. 371.) The determination as to whether the probative value of such evidence is substantially outweighed by the possibility of undue consumption of time, unfair prejudice or misleading the jury is "entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.]" (People v. Fitch (1997) 55 Cal.App.4th 172, 183.) The weighing process under section 352 "depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. [Citations.]" (Jennings, supra, 81 Cal.App.4th at p. 1314.) " 'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." ' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 320.) We will not find that a court abuses its discretion in admitting such other sexual acts evidence unless its ruling " ' "falls outside the bounds of reason." ' [Citation.]" (People v. Catlin (2001) 26 Cal.4th 81, 122.) In other words, we will only disturb a trial court's ruling under Evidence Code section 352 where the court has exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice. (Frazier, supra, 89 Cal.App.4th at p. 42.)
C. Analysis
Applying the above rules here, we conclude that the trial court exercised its discretion in evaluating and weighing the other sexual acts evidence under Evidence Code section 352 in a manner resulting in a fundamentally unfair trial in which Haiman was essentially tried as a sex offending monster with the propensity to commit the charged sex offense rather than for what he did. (See Harris, supra, 60 Cal.App.4th at p. 737.) Although we recognize that the record reflects the trial court did go through the Evidence Code section 352 factors mentioned in Falsetta, supra, 21 Cal.4th at p. 917, which were outlined in the People's motion for admission of the evidence, it appears the court may have mechanically done so rather than carefully considering the unique facts and issues in this case. (See Jennings, supra, 81 Cal.App.4th at p. 1314.) And, even though the court tried to limit the effect of the testimony and evidence by crafting and giving instructions regarding its use only for showing specific intent and the propensity to commit the one charged crime, on this record we cannot find those instructions saved the trial from the overwhelming cumulative prejudicial effect of the inflammatory nature of such evidence.
With regard to the court's weighing of the other sexual acts evidence concerning Catherine's and Bree's testimony about the specific facts underlying Haiman's prior convictions to which he had pled guilty, while we agree the court could properly allow the jury to hear the girls' testimony concerning those admitted crimes because the intent element for the charged crime technically remains " 'disputed' until it is resolved" (Estelle v. McGuire (1991) 502 U.S. 62, 69; People v. Rowland (1992) 4 Cal.4th 238, 260), the fact Haiman did not contest that element and stipulated to having committed those offenses that resulted in the entry of his guilty plea in the earlier case rendered the girls' testimony of other sexual misconduct beyond Haiman's convictions cumulative overkill. Such evidence had the prospect of distracting the jury with additional extremely inflammatory prior sexual misconduct for which Haiman had not previously been convicted. The court did not consider this other "full spectrum" evidence when it initially considered the matter pretrial. When the issue came up as the court was drafting the limiting instructions before the girls' testimony, it merely acknowledged Haiman's continuing objection to the admission of such evidence without doing any further analysis. Thus, this case goes beyond that presented in Falsetta, where the court recognized the prejudicial impact of "the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jury's attention would not be diverted by having to make a separate determination whether defendant committed the other offenses." (Falsetta, supra, 21 Cal.4th at p. 917.)
Here, the additional uncharged sexual offenses going beyond the unlawful touching by Haiman of "the anus [and] the v[a]gina of a child under 14 for sexual arousal" that he admitted to in his earlier guilty plea involved additional acts of oral copulation, showing or sending harmful material to seduce a minor, continuous sexual abuse, and other lewd or lascivious acts by force or fear. The girls' testimony regarding those uncharged additional offenses, while not lengthy, was considerably more inflammatory than the evidence regarding the charged offense involving Haiman possibly touching a young sleeping girl on her thigh with his penis from behind. Catherine and Bree each testified to lengthy periods of molestation committed while she was awake, which left her with adverse, psychological effects. Specifically, Bree described overt and violent sexual conduct by Haiman upon her as a young child over a substantial period, which involved intercourse, oral copulation, and penetrations of her vagina and anus with his fingers, his penis and a vibrator, which left her depressed and suicidal. Because these additional uncharged offenses were more egregious than the charged offense, the admission of the evidence concerning them created a real substantial danger that the jury might convict Haiman to further punish him for earlier sexual misconduct for which he had not been convicted and punished.
Thus contrary to the judge's finding, the record supports the strong possibility that the girls' testimony improperly evoked an emotional bias against Haiman as an individual which no limiting instruction could cure. (See People v. Smith (2005) 35 Cal.4th 334, 357.) In addition, because Haiman had stipulated to admitting into evidence his prior guilty plea to four counts of lewd conduct against minors under 14 years old, there were certainly less prejudicial alternatives to the outright admission of Catherine's and Bree's testimony on the "full spectrum" of sexual misconduct Haiman had committed upon them.
Moreover, added to the wholesale admission of the above uncharged sexual misconduct with Catherine and Bree, was the admission of Lim's testimony regarding the evidence of uncharged possession of child pornography concerning charges that were currently pending in a criminal complaint the trial court had refused to join for trial with the present charge of lewd conduct. Though we appreciate that the trial court greatly limited the amount of pornography evidence that was permitted via Lim's testimony, and again gave limiting instructions for the use of such evidence, in this case the admission of such evidence, especially the playing of a digital movie portraying the same type of conduct for which Haiman was on trial, was entirely unnecessary, cumulative and prejudicial.
As the trial court commented during its review of the materials, they were shocking and disturbing. The materials were evidence contained on the Haimans' computers and CD's from which the prosecution was building a case against Haiman for the possession of child pornography. Although that crime itself is less serious than the charged crime of lewd or lascivious conduct upon a child 14 years of age, such fact was probably lost on the jury who had to sit through the viewing of a movie video showing a man molesting a young girl while she was sleeping and hearing the vivid description of the action on another digital film showing a young girl having her clothes taken off by a man and then positioning her for sexual intercourse several times before ejaculating on her stomach. Thus the actual evidence admitted concerning the uncharged pornography offense was really more egregious and inflammatory than the facts surrounding the charged crime in this case.
Even though the possession of pornography is a type of sexual offense admissible under Evidence Code section 1108 and that section does not limit evidence of uncharged sexual offenses to those committed prior to the charged offense (People v. Medina (2003) 114 Cal.App.4th 897, 902), the sleeping girl movie admitted and viewed by the jury, which Lim determined had been downloaded and watched by Haiman after the charged offense in this case was only minimally probative on the issue of whether he touched T. two nights earlier than that download and was highly prejudicial. Although that movie and the remaining pornography evidence elicited through Lim's testimony may have had some relevance on Haiman's propensity and the issue of whether he harbored the requisite intent to commit the current charge, as noted above, the value of such evidence was minimized by the fact Haiman did not contest the issue of his intent and by the introduction of other evidence, including Haiman's change of plea form for his earlier guilty pleas, the testimony of Bone, Manning, Guerin, as well as that from Catherine and Bree.
Further, because Haiman had not yet been convicted of the pornography charges, as with the uncharged crimes evidence beyond his convictions involving Catherine and Bree, there was a real danger that the jury might convict Haiman to punish him for the child pornography and movie in his possession, which essentially mirrored the conduct with which he was charged. Clearly the admission of the sleeping girl movie played to the jury as evidence of whether Haiman possessed pornography is the type of evidence which uniquely tends to evoke an emotional bias against Haiman as a person that could cause the jury to prejudge him while having little relevance on the issues concerning the charged offense. Although the trial court recognized the inflammatory nature of the bulk of the pornographic evidence and tried to limit its impact on the jurors with instructions and by admitting only some of the evidence, its decision to allow the playing of the video which showed explicit details of sexual conduct upon a sleeping child is incomprehensible in light of this record.
By its rulings to permit the other sexual crimes evidence in this case over Haiman's persistent Evidence Code section 352 and constitutional due process objections, the trial court exercised its discretion in a manner that permitted the trial to become one based on Haiman's propensity rather than on what he did the night Manning saw him touch or try to touch a young child sexually. Such rulings also required the court to present to the jury voluminous other crimes instructions outnumbering those given on the current charge which could have easily confused and diverted the jury's attention from the real issues in the case.
Because we believe the trial court abused its discretion in ruling under Evidence Code section 352 with regard to both the additional uncharged sexual acts evidence involving Catherine and Bree and the pornography evidence admitted via Lim's testimony, and that section provides the "safeguard that strongly supports the constitutionality of [Evidence Code] section 1108" (Falsetta, supra, 21 Cal.4th at p. 916) to provide a defendant a fundamentally fair trial, we must review the cumulative error under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). Under that prejudice standard, an error may be found harmless only when the "beneficiary of a constitutional error . . . prove[s] beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Ibid.) An error is harmless when it does not contribute to the verdict because it is "unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record." (Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved on other grounds in Estelle v. McGuire, supra, 502 U.S. 62, 73, fn. 4.)
In this case, the entirety of the People's argument that Haiman was not prejudiced under this standard is that there was overwhelming evidence independent of the additional uncharged sexual acts evidence involving Catherine and Bree and the pornography evidence. However, even though the prosecution presented a strong case of Haiman's guilt independent of the other sexual crimes evidence, we cannot say that the error in admitting such propensity evidence on which the prosecutor heavily relied to show Haiman's propensity and intent to commit the current crime was " 'unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record' " or that the jury's verdict was " 'surely unattributable' " to that evidence. (Neder v. U.S. (1999) 527 U.S. 1, 38.) We thus conclude that the erroneous admission of the over abundance of additional uncharged sexual acts evidence rendered Haiman's trial fundamentally unfair and was not harmless beyond a reasonable doubt. We therefore reverse.
DISPOSITION
The judgment is reversed.
WE CONCUR: McCONNELL, P. J., IRION, J.
To be relevant on the issue of intent, uncharged crimes need only be sufficiently similar to a charged offense to support the inference that the defendant probably harbored the same intent in each instance. (People v. Kipp (1998) 18 Cal.4th 349, 371 (Kipp).) However, even if evidence of an uncharged offense is relevant on the issue of intent, it may nonetheless be excluded if its admission would be more prejudicial than probative. (Evid. Code, § 352, Kipp, supra, 18 Cal.4th at p. 371.)