Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF017490, Edward D. Webster, Judge.
David E. Stothers and Robert Z. Corrado for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut J.
1. Introduction
A jury convicted defendant Gary Bruce Hellman of eight sexual offenses against his granddaughter: six counts of violating Penal Code section 288, subdivision (b)(1), and two counts of violating Penal Code section 288.2, subdivision (a). The court sentenced defendant to 38 years in prison.
Defendant appeals, challenging the evidence of other sex crimes (Evid. Code, § 1108) and raising additional issues about ineffective assistance of counsel and regarding child sexual abuse accommodation syndrome (CSAAS). We reject these contentions and hold there was sufficient evidence to support defendant’s convictions.
All statutory references are to the Evidence Code unless stated otherwise.
2. Facts
a. Jane Doe
Jane Doe is defendant’s granddaughter. In a police interview recorded when Jane Doe was nine years old, she said defendant started touching her sexually when she was five years old. In the first incident he undressed both of them, blindfolded her, held her feet so she could not move, and touched her genitals. At least five such incidents occurred at her grandparents’ house in Palm Desert and one episode occurred after they moved to Corona. Defendant also compelled Jane Doe to touch his penis three times and twice he forced her to watch pornographic movies which he kept hidden in a tool box. She described defendant’s pubic hair as being black. Jane Doe confided what was happening to a friend several weeks before the police interview. The friend then told Jane Doe’s mother, D.H.
When Jane Doe testified at trial in 2008, she was 13 years old. She testified that defendant began touching her sexually in 1999 when she was five years old and continued to touch her until she was nine years old. He touched her breasts and vagina both over and under her clothes. He undressed both of them and made her touch him. Defendant also showed her pornographic movies more than once.
It is not clear whether Jane Doe meant the vagina, an internal organ, or the external genitals.
Eventually, Jane Doe confided to her friend who then told D.H. what had happened. Jane Doe was trying to avoid staying with defendant while her mother went to Las Vegas. D.H. testified that Jane Doe’s friend approached her to ask about sexual contact between defendant and Jane Doe. D.H. then contacted the police.
b. Other Crimes
Four of defendant’s relatives—his sister, his daughter, his former sister-in-law, and his niece—testified against him about a history of molesting family members.
C.B., defendant’s sister, testified that after Jane Doe disclosed being molested, C.B. remembered defendant molesting her between the ages five and eight. At the time of trial, C.B. was 61 years old. Defendant was six years older than C.B. C.B. recalled three incidents. The first time defendant rubbed her genitals and inserted his fingers. Another time he touched her under a blanket in the back of a car. The third time he orally copulated her. C.B. was also molested by her stepfather.
B.A., defendant’s former sister-in-law, testified that she met defendant when she was nine years old in 1960 and defendant married her older sister. Once she walked in accidentally on him while he was urinating and he smiled and gestured at her. Later he commented that she should have come in and asked her if she had liked what she had seen. Later when she was 12 years old and visited them he would make rude hand gestures and tongue motions. He would brush his hands against her breasts and buttocks. In 1968, when she was 17 and spending the night, she woke up and he was touching her breasts and between her legs. She did not tell anyone about these incidents until she heard about Jane Doe and then she wrote a letter to the police. Even though B.A. tried to protect her daughter, S.H., from defendant, S.H. disclosed to her that defendant had also molested her.
S.H., defendant’s niece, testified that she sometimes shared a bed with her aunt and defendant when spending the night. After the aunt left the room, defendant would touch her exterior and interior genitals. She wrote a statement for the detective in which she described at least four times defendant had touched her when she was between the ages of five and seven.
D.H., defendant’s daughter, who was 46 years old during the trial, recalled similar conduct by defendant with her. Between the ages of five and 12, defendant touched her genitals and compelled her to masturbate him. He also showed her magazine pictures with sexual content.
c. Other Prosecution Testimony
Dr. Veronica Thomas, a forensic psychologist, testified about CSAAS. The police found pornographic movies concealed in defendant’s tool box. In a police interview, defendant admitted being alone with Jane Doe when she visited his home.
d. Defendant’s Testimony
Defendant denied molesting his sister, his former sister-in-law, his niece, his daughter, or Jane Doe. He agreed with most of the details of the testimony given against him except for the sexual accusations. He denied ever being in bed with S.H. He acknowledged possessing pornography but he did not show it to Jane Doe. After 1990, when he had open heart surgery, he experienced adverse side effects on his sexual life from the medication. His pubic hair is gray not black.
Defendant’s wife testified that defendant was not left alone with the grandchildren because they made him nervous. He was never alone with Jane Doe. Her calendar recorded that Jane Doe had visited Palm Desert at least five times and Corona once between April 2000 and 2004. Because of his health, defendant and his wife had a limited sexual relationship. Defendant’s pubic hair is gray.
3. Section 1108
Section 1108 provides that evidence of other sexual offenses is admissible unless it is not admissible under section 352: “By reason of section 1108, trial courts may no longer deem ‘propensity’ evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, 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 sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (People v. Falsetta (1999), 21 Cal.4th 903, 916-917; People v. Branch (2001), 91 Cal.App.4th 274, 282-287.)
In extremely general terms, defendant primarily argues there was not enough similarity between the past and current offenses. We disagree. Here, both the current offenses and the past offenses were ones defined as qualifying “sexual offenses” under section 1108, subdivision (d). Furthermore, the testimony was admissible under section 1101, subdivision (b). Defendant’s intent in touching Jane Doe was at issue in the case, as the charged offenses required proof that appellant’s actions were undertaken for the purpose of sexual gratification. The evidence was relevant to establish a common plan or scheme on appellant’s part—that of molesting vulnerable young family members. In sum, testimony about the past offenses was admissible under section 1101, subdivision (b), unless it should have been excluded under section 352. (People v. Ewoldt (1994), 7 Cal.4th 380, 404.)
In our view, the trial court did not abuse its discretion in failing to exclude evidence of prior uncharged sexual offenses pursuant to section 352. 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, of confusing the issues, or of misleading the jury.” We review a challenge to a trial court’s choice to admit or exclude evidence under section 352 for abuse of discretion. (People v. Harris (1998), 60 Cal.App.4th 727, 736-737.) We will reverse only if the court’s ruling was “arbitrary, whimsical, or capricious as a matter of law. [Citation.]” (People v. Linkenauger (1995), 32 Cal.App.4th 1603, 1614.) The subject evidence was properly admissible under section 1108. It was not inadmissible under section 352.
4. Ineffective Assistance of Counsel (IAC)
Defendant offers a number of claims involving the denial of his new trial motion and IAC. The standard is a strict one: “To succeed on a claim of ineffective assistance of counsel, the appellant must show (1) counsel’s representation fell below an objective standard of reasonableness; and (2) the deficiency resulted in demonstrable prejudice. [Citations.] Unless the record affirmatively establishes counsel had no rational tactical purpose for the challenged act or omission, we must affirm the judgment. [Citations.] Moreover, ‘[a] court may reject a claim of ineffective counsel if the [appellant] fails to show the result would have been more favorable but for trial counsel’s failings.’ [Citation.]” (In re Kristen B. (2008) 163 Cal.App.4th 1535, 1540-1541.)
First, defendant makes the perfunctory assertion his lawyer should have called as defense witnesses some 70 police officers or others with whom defendant worked as a Los Angeles County deputy sheriff and who, as child abuse experts, could testify defendant was of good character and did not display the characteristics of a child molester. No other supporting argument is made on this point. No specific offer of proof was made below as to the substance of the proposed testimony other than it would address the issue of whether defendant was a child molester. For that reason, we deem the issue waived on appeal. (People v. Smith (2003), 30 Cal.4th 581, 616, fn. 8.)
Defendant next argues his lawyer did not challenge Jane Doe’s competency, citing section 701 and People v. Knox (1979), 95 Cal.App.3d 420, 431. Defendant, however, does not identify any indication of incompetency except that Jane Doe was testifying as a child. The court commented expressly on her competence. Again, we deem this issue to be unsupported and therefore waived on appeal.
Defendant protests that the defense attorney did not present defense evidence on CSAAS to counter the prosecution’s expert. Defendant has not made an offer of proof. Furthermore, the record demonstrates that the trial attorney for defendant effectively used cross-examination of the prosecution’s CSAAS witness to establish that CSAAS is not used to diagnose sexual abuse but, rather, to explain the effects of abuse on children. The defense attorney also elicited useful testimony about “secondary gain,” meaning ulterior reasons could exist for manufacturing or exaggerating abuse claims. Thus, defendant has not shown on appeal that he suffered prejudice from his attorney’s nonstandard performance. (In re Kristen B., supra, 163 Cal.App.4th at p. 1541.)
Next we reject defendant’s contention that defense counsel should have sought a medical examination of Jane Doe. The circumstances of this case did not justify an examination. Defendant touched the victim’s breasts and genitals. But there was no unequivocal evidence of penetration and hence no likelihood that an examination would have resulted in any probative evidence. That was the unassailable reason given by the trial court when it denied the new trial motion as it was based on this ground.
Defendant also faults defense counsel for not presenting evidence about childhood suggestibility. (People v. Harlan (1990), 222 Cal.App.3d 439, 453.) The only basis for defendant’s argument is that Jane Doe initially described what occurred as a “sexual assault,” meaning that her mother could have implanted the idea for false allegations. We find this too slender a reed to support an IAC claim. There is no evidence the police used unreliable methods during Jane Doe’s interview. Her statements made then and four years later at trial were almost entirely consistent. She did not display uncertainty or hesitation about the factual details of the molestations. There was no reason for defense counsel to present evidence about suggestibility based on the circumstances of this case.
Defendant’s slight argument about false or repressed memory syndrome is equally weak. The prosecution’s expert testified that it is possible for people to repress memories of being molested. Defense counsel did not cross-examine her on this point. But defendant also did not make an offer of proof about contrary expert evidence. Furthermore, although both defendant’s sister and daughter claimed to have forgotten defendant’s conduct against them, their testimony was detailed and credible and consistent with defendant’s behavior against the other two victims and Jane Doe. Defendant has not successfully demonstrated defense counsel’s performance was deficient or prejudicial.
5. Sufficiency of Evidence
To determine the sufficiency of the evidence to support a conviction of a criminal offense, we “‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.]” (People v. Mayfield (1997), 14 Cal.4th 668, 791.)
Defendant has offered little reason to doubt the jury’s verdict. The evidence supported that on at least six occasions defendant violated Penal Code section 288, subdivision (b)(1). He committed lewd and lascivious acts against his young granddaughter with sexual intent and using force, duress, or fear. (People v. Cochran (2002), 103 Cal.App.4th 8, 13-14.) On at least two occasions, he also violated Penal Code section 288.2, subdivision (a), by forcing Jane Doe to watch pornographic movies. The testimony of Jane Doe’s four female relatives fully supports that defendant, a multi-generational molester, made Jane Doe his most recent victim.
6. Disposition
We affirm the judgment.
We concur: Richli, Acting P. J., King J.