Opinion
E032242.
10-28-2003
THE PEOPLE, Plaintiff and Respondent, v. EDWARD JOHN INGRAM, Defendant and Appellant.
Law Office of A.M. Weisman and A.M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Karl T. Terp, Deputy Attorney General, for Plaintiff and Respondent.
Defendant appeals from his convictions for committing a lewd and lascivious act on a minor (Pen. Code, § 288, subd. (a))[] and attempt to commit the same (§§ 664/288, subd. (a)), with prior convictions for committing a lewd act on a minor (§ 288, subd. (a)) and residential burglary (§ 459) under the one strike law (§ 667.61) and the three strikes law (§§ 667, 1170.12). We affirm the convictions, concluding: (1) The jury was properly instructed pursuant to CALJIC No. 2.50.01 that evidence of a prior sexual offense was not sufficient by itself to prove beyond a reasonable doubt that defendant committed the current offense; (2) The prior offense need only be proven by a preponderance of the evidence, not beyond a reasonable doubt; (3) The prior offense was admissible under Evidence Code section 352 because its probative value was not substantially outweighed by the risk of jury confusion or prejudice; (4) The prosecutor did not commit misconduct by arguing "once a child molester, always a child molester," and asking the jury to "brand him an animal," because Evidence Code section 1008 authorizes the use of evidence of prior offenses to prove propensity; (5) Defendants claim that counsel was unconstitutionally ineffective for stipulating that the reading of the jury instructions need not be transcribed is best raised on habeas because there is nothing in the appellate record to indicate that there was a prejudicial error in the reading of the instructions; and (6) Any error in admitting a videotape interview of the victim under Evidence Code section 1360 was harmless because the video was merely cumulative to the victims live testimony and the parents testimony relating the victims earlier statements. However, we reverse the true findings on the prior conviction allegations and remand for resentencing, finding that defendants admission to the priors was not voluntary and intelligent because he was not properly advised of his confrontation and self-incrimination rights.
All further statutory references will be to the Penal Code unless otherwise indicated.
STATEMENT OF FACTS
The victims mother began corresponding with defendant and visited him twice while he was in prison on the prior sex offense. The victims parents knew that defendant was in prison for sexually molesting a child, but defendant claimed that his ex-wife had falsely accused him because he had assaulted her boyfriend. The victims parents believed defendant and thought he merely pleaded guilty to avoid a harsh sentence.
When defendant was released from prison in the summer of 1999, the victims mother picked him up from the prison and took him home. Over the next month, the victims family tried to help defendant with housing, jobs, and whatever else he needed. As a result, defendant came over to the victims house on several occasions and got to know the whole family.
At the time, the victims mother was having problems with her marriage and her life in general, and asked defendant to get methamphetamine for her. Defendant obliged, and the two began doing methamphetamine together. Defendant and the victims mother also began having sex. The victims father claimed that he had no suspicions whatsoever that defendant and his wife were having sex. Nevertheless, he admitted that he once caught them doing methamphetamine and warned them to stay away from each other. The mother initially denied the sexual relationship to the police and prosecutor, but eventually admitted it when the defense claimed that it had uncovered the affair.
In August 1999, when the victim was just five years old, defendant came over to the victims house to do laundry and was to be taken to his parents house afterwards by the victims mother. The victims father was not home that day because he was at work. Once defendants laundry was started, defendant, the victim, and the victims mother spent some time by the swimming pool. After the pool, the mother left defendant and the victim reading books in the bonus room, while she made some telephone calls relating to a surgery that she had scheduled for the next day. About a half hour later, they all went back outside, where the mother began cleaning around the pool. While she cleaned, she told defendant and the victim about the surgery. After a few minutes, defendant offered to read another story to the victim and they went back inside, leaving the mother outside to finish the cleaning. When the mother tried to go back inside a few minutes later, she discovered that the sliding door was locked. The mother knocked on the door, and the victim came to the door from a hallway and unlocked it, saying that defendant had locked it. The victims father came home shortly after that.
When the father came home, he encountered defendant coming out of the bathroom and heard defendant say "excuse the stain on my shorts," which the father assumed to be an innocent reference to a spill of some sort. But before they left, the victim whispered to her father that she had a secret and said that defendant had touched her. The father was not sure he understood the victim properly, so he waited until the mother and defendant had left to question her further.
The victims mother and defendant left for defendants parents house a short time later. On the way there, they stopped at a motel where defendant was living and had sex once again.
When the victims father was left alone with the victim, she was reluctant to talk about what had happened. But over a period of about three or four hours of periodic questioning, she described the alleged sexual abuse. The victim told her father that she was sitting on defendants stomach in the bonus room while he was reading a story. Defendant said he wanted to touch her and make his fingers smell like "pee-pee," and that he was going to tickle her and she would like it. The victim demonstrated how defendant reached under her clothing to touch her vagina. When she said she did not like it, defendant said he would never play with her again. Defendant then went into the bathroom, and when the victim walked past, defendant showed her his penis. The victim explained that the mother was outside cleaning the pool at the time, and defendant had locked the door.
By the time the whole story had come out, it was getting late and the victim was ready to go to sleep, so the father put her to bed. The father did not call the police at that point because he wanted the mother to question the victim to make sure she was telling the truth. The father called the mother at defendants parents house and told her about the victims allegations. Upon hearing the allegations, the mother began punching defendant and screaming at him, then immediately returned home.
When the mother returned home, she checked the victim for injuries but did not find any. The mother asked the victim a couple of questions and the victim said that defendant touched her, but the victim was tired, so the mother let her go back to sleep and waited until the next morning to question her further. The next morning, the victim told her mother the same story she told her father.
When the family went to the hospital for the mothers scheduled surgery, a nurse noticed that they were upset about something. They told the nurse what happened and the nurse summoned a social services worker, who called the police. The police subsequently had a social worker interview the victim on videotape. During that interview, the victim repeated the same story she told to her parents.
Defendant was ultimately charged with committing a lewd and lascivious act on a minor (§ 288, subd. (a)) and attempt to commit the same (§§ 664/288, subd. (a)). As to both counts, defendant was alleged to have suffered prior convictions for committing a lewd act with a minor (§ 288, subd. (a)) and residential burglary (§ 459) under both the one strike law (§ 667.61) and the three strikes law (§§ 667, 1170.12).
At trial, the victim testified consistent with her prior statements, saying that defendant touched her vagina while they were sitting on the floor reading a book in the bonus room of the house. The victim testified that defendant said he wanted his fingers to smell like pee-pee. The victim also testified that when she walked past the bathroom afterwards, defendant showed her his penis and asked her to touch it. However, the victim could not remember if defendant touched her under her clothes or how long it took. Additionally, at the end of its evidentiary presentation, the prosecution played the videotape of the previous interview of the victim. Defendant never cross-examined the victim.
The prosecution also presented evidence of defendants prior act of molestation. Defendants ex-wife testified that one morning in 1993, she found her then-seven-year-old daughter from another relationship lying on the couch next to defendant. They were both asleep, but her daughters panties were pulled down to her knees, exposing her vagina, and defendants penis was visible through the fly of his boxer shorts. Her daughters bottom was pressed up against defendants groin.
Defendants ex-wife picked up her daughter and took her back to her bedroom. She asked her daughter why she was on the couch with her pants down. Her daughter was nervous and reluctant to respond, but finally indicated that defendant pulled down her pants, rubbed her legs and buttocks, and played with her vagina. Defendant then burst into the bedroom, demanded to know what the daughter was saying and claimed she was lying. Based on defendants reaction, his ex-wife concluded that her daughter was telling the truth.
The ex-wife took her daughter and younger son, left the house, and went to a nearby hotel to call the police. But she was unable to get through and had to get to work, so she made defendant drive her to work and left the children with him. At work, she called the police again and had her boss drive her home about an hour and a half later to meet the police.
The ex-wife testified that her daughter told the police that the molestation had been happening for a long time, that defendant had her touch his penis and put it in her mouth, that defendant would play with her vagina and get on top of her, and that defendant made her touch her younger brother. The daughter also testified at trial and confirmed the ex-wifes allegations.
Defendant did not present any evidence of his own and was convicted as charged. Defendant admitted the prior convictions and was sentenced to 80 years to life.
DISCUSSION
1. Prior Sexual Offenses
a. Due Process
Evidence Code section 1008 permits the use of evidence of prior sexual offenses to prove propensity and thereby infer guilt. CALJIC No. 2.50.01 implements that rule, but cautions: "[I]f you find by a preponderance of the evidence that the defendant committed [a] prior sexual offense[s], that is not sufficient by itself to prove beyond a reasonable doubt that [he] [she] committed the charged crime[s]." Defendant argues that this cautionary instruction implies by way of a "negative pregnant" that prior offenses may be sufficient on their own to prove the current offense if they are proved beyond a reasonable doubt, and claims that the court should have given a requested clarifying instruction. However, the Supreme Court recently rejected this "negative pregnant" argument in People v. Reliford (2003) 29 Cal.4th 1007, 1015, finding that no reasonable jury would be misled by the standard instruction into believing that the prior offenses were sufficient on their own to prove the current offense.
b. Burden of Proof
Defendant also argues that evidence of prior acts, like other circumstantial evidence, must be proven beyond a reasonable doubt, not by a mere preponderance of the evidence. This argument was rejected in People v. Van Winkle (1999) 75 Cal.App.4th 133, 145-147, which we find to be persuasive. (See also Reliford, supra, 29 Cal.4th at pp. 1015-1016 [instruction is unlikely to confuse a reasonable jury about the appropriate burden of proof].)
c. Prejudice
Defendant also contends that the prior sexual offense allegations were inadmissible under Evidence Code section 352, which gives the trial court the discretion to exclude evidence when its probative value is substantially outweighed by the probability that it will cause undue prejudice, consume undue time, or confuse the jury. Defendant argues that the prior offense had little probative value because it was substantially different from the current allegation, and contends that exclusion was therefore warranted by the substantial likelihood of confusion and undue prejudice.
The trial courts ruling in this regard is reviewed for an abuse of discretion (People v. Frye (1998) 18 Cal.4th 894, 948), and we see no such abuse. Both of the allegations involved genital contact with young girls of a similar age with whom defendant was well acquainted. As a result, the prior offense was highly probative of a propensity to commit the type of crime currently alleged, which is precisely what Evidence Code section 1008 permits. Furthermore, the details of the prior offense were sufficiently distinct to avoid jury confusion and were not so egregious as to cause undue prejudice.
2. Prosecutorial Misconduct
Defendant alleges that the prosecutor committed misconduct by arguing "once a child molester, always a child molester," and asking the jury to "brand him an animal." Given that Evidence Code section 1008 permits the use of prior sexual offenses to infer propensity, we see nothing objectionable about these comments. Evidence Code section 1008 expressly invites the jury to brand the defendant a habitual sex offender and infer once a sex offender, always a sex offender.
Defendant appears to recognize the impact of Evidence Code section 1008 and argues that these comments improperly invited the jury to determine guilt based solely on the evidence of prior offenses. We disagree with that interpretation. Nothing about these statements indicates that the prior offense was sufficient on its own to establish the current offense; instead, they merely argue a permissible propensity inference. Furthermore, the prosecutor relied on all of the evidence to argue her case, not just the prior offenses, and argued that the evidence of the prior offenses merely "corroborated" the testimony of the current victim.
3. Ineffective Assistance of Counsel
Defendant argues that his trial counsel was unconstitutionally ineffective for stipulating that the reading of the jury instructions need not be transcribed. However, defendant fails to provide evidence of a prejudicial error in reading the instructions, and absent a showing of prejudice, the ineffective counsel claim fails. (In re Resendiz (2001) 25 Cal.4th 230, 239.) Even if such evidence existed, it would necessarily come from outside the record and would therefore be best raised in a habeas proceeding. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
4. Hearsay
Defendant argues that the videotaped interview of the victim was improperly admitted under Evidence Code section 1360, which creates an exception to the hearsay rule for statements by children under 12 describing acts of abuse. Regardless, any alleged error was harmless. The video was merely cumulative, coming at the end of the prosecutions case, after the victims live testimony and the parents testimony relating the victims earlier statements. Therefore, there was no reasonable probability of a more favorable result absent the video. (People v. Watson (1956) 46 Cal.2d 818, 836.)
5. Prior Convictions
Defendant correctly argues that the trial court never properly advised him of his confrontation and self-incrimination rights when he admitted his prior convictions. Under those circumstances, other courts have reversed the true findings on the priors and remanded for resentencing, concluding that there was no evidence of a voluntary and intelligent admission. (People v. Carroll (1996) 47 Cal.App.4th 892, 896-898; People v. Torres (1996) 43 Cal.App.4th 1073, 1082; but seePeople v. Mosby (2002) 95 Cal.App.4th 967, 975-981, review granted May 1, 2002, S104862 [finding that the defendant must have been aware of his confrontation and self-incrimination rights because he already completed a full jury trial on the underlying offense].) We will adhere to this line of authority and do the same.[]
Having remanded for resentencing, we need not address defendants other sentencing arguments, which can be addressed on remand.
DISPOSITION
The convictions are affirmed, but the true findings on the prior conviction allegations are reversed and the matter is remanded for resentencing.
We concur: Ramirez, P.J. and Richli, J.