Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC059414
Mihara, Acting P.J.
Defendant was convicted by jury trial of three counts of attempted lewd conduct (Pen. Code, §§ 288, subd. (a), 664), five counts of felony attempted distribution or exhibition of harmful matter to a minor over the Internet (Pen. Code, §§ 288.2, subd. (b), 664), and three counts of misdemeanor attempted distribution or exhibition of harmful matter to a minor by any means (Pen. Code, § 313.1, subd. (a)). He admitted that he had suffered six prior serious felony convictions within the meaning of Penal Code sections 667, subdivisions (b) to (i) and 1170.12. The trial court sentenced him to an indeterminate term of 25 years to life consecutive to a determinate term of five years and four months. It also imposed a $10,000 restitution fund fine.
On appeal, defendant contends that (1) the trial court prejudicially erred in permitting the prosecutor to introduce evidence of his 1983 prior convictions in rebuttal, (2) his trial counsel was prejudicially deficient in failing to object on grounds of vindictive prosecution to the prosecutor’s amendment of the information to add three attempted lewd conduct counts (Counts 5, 7 and 10) after this court reversed the original judgment against defendant, (3) the prison sentence and restitution fund fine violated double jeopardy because they exceeded the sentence that had been imposed after defendant’s original trial, prior to this court’s reversal of that judgment, and (4) the trial court’s sentence violated Penal Code section 654. Defendant has also filed a petition for a writ of habeas corpus reiterating his ineffective assistance of counsel contention. Because we find merit in his appellate ineffective assistance of counsel claim and his double jeopardy claim, we reverse the judgment and direct the trial court to strike the three attempted lewd conduct counts and resentence defendant to a sentence which does not exceed his original sentence. By separate order, we dismiss his habeas petition as moot.
I. Factual Background
In 1998, Mark Clough was a San Jose police detective in the child exploitation unit. One of his duties was to work on “proactive” “Internet cases.” Clough created an America Online (AOL) profile identifying himself as a fictitious 13-year-old boy named “Scotty” living in Campbell with a birthdate of May 12, 1985. His screen name was “scotty0585.” “Scotty” stated in his profile that his occupation was “astronaut.”
On December 23, 1998, Clough entered the “BarelylegalM4oldrM” chat room using “Scotty’s” screen name. “Scotty’s” profile was available to the other occupants of the chat room. Clough soon received an unsolicited message from defendant, whose screen name was “leoprio1.” After just a few lines of messaging, defendant asked Clough if he had a “self pic . . . to trade.” Clough responded, “if u send one first.” Defendant said he had “a g and x would you like both.” Clough responded in the affirmative, and defendant sent Clough two photographs by email. One of the photos was a black-and-white photo of a man, naked with an erect penis. The other was a fully clothed photo of defendant. Clough asked defendant if he had ever “been with a guy my age?” Defendant said “yeah” and asked Clough if he had “ever been with someone my age?” Clough said he had “messed with” a boy his own age. Clough asked, “the guy u were with like u?” Defendant responded, “very much.” He told Clough he would put him on his “buddy list,” and the conversation ended.
A printout of most of the messaging between Clough and defendant was admitted into evidence at trial.
A “buddy list” is an AOL feature that lets a user know if any of the user’s “buddies” are “logged on” when the user is online.
On December 30, 1998 (count 1), Clough again entered the same chat room, and defendant initiated another conversation. Clough reminded defendant that he was 13 years old. Clough told defendant that he had erased the photos, and defendant again sent those two photos plus one more. The new photo depicted a man being both orally copulated and sodomized simultaneously. The file was called “!2on1kid.” Defendant told Clough that he was 37 and asked, “is that too old for you.” Clough replied, “is 13 to yung for u?” Defendant said “no.” Defendant told Clough that he had had a sexual relationship with someone Clough’s age “for over a year.” He said, “younger guys are just alot of fun” because “they can be taught stuff and they are inexperienced.” Defendant then questioned Clough about his sexual experience, and Clough described having touched both a male and a female.
On January 13, 1999 (Count 2), defendant initiated another electronic conversation with Clough. Defendant asked Clough “is your cock hanging out” and suggested that Clough send him a picture of himself. Clough said he lacked the money to do so. Defendant suggested that Clough “go to the mall and sell your butt for one day you can probably get at least 100 bucks:)” Clough responded “thats tore up dude,” and defendant said he was “just kidding” and “would never want you to do that.” Clough asked defendant if he was “ever comin to San Jose,” and defendant said “[p]robably not till next spring to go to Marriotts.” Defendant suggested “we could touch each other on the rides” and then “come home and fuck till our hearts content.” Defendant asked Clough to repeat his height, weight and age, and Clough did so. Defendant promised to “teach” Clough and said it was “fun to make a young guy experience new things, because you can really get them off.”
A colon followed by a close parentheses is used on the Internet to signify a smile.
Marriott’s Great America is an amusement park in Santa Clara County.
Defendant engaged Clough in some brief sexual talk, and he sent Clough the same “x” photo of himself that he had sent previously. Clough asked defendant his name, and defendant truthfully told Clough his name was “Marty.” Defendant asked Clough what he was doing. Clough replied “u the teacher marty.” Defendant said “I teach better in person” and explained that he taught “the finer arts of boy love” including “rubbing and sucking and kissing and fucking and cumming all over each other.” Clough said “with me?” and defendant responded “if you want.” Defendant asked Clough if he was “gonna jack off.” When Clough said “yea,” defendant asked him to “do it and tell me what your doing.” Defendant asked Clough if he was “touching your cock,” but then he almost immediately terminated the conversation.
On February 17, 1999, defendant again initiated a conversation with Clough. Clough asked defendant if he was coming to San Jose “anytime.” Defendant said “not in a while.” Clough asked if he was coming to San Jose “anytime soon,” and defendant said “I always go to Great America.” The conversation soon terminated.
On February 25, 1999 (Count 3), Clough initiated contact with defendant. He told defendant that his “mom” was going to be leaving him home alone for a couple of days. Defendant asked him if he was going to “invite a guy over to fuck all night?” Clough responded affirmatively and extended an invitation to defendant. Defendant asked “where do you live again,” and Clough said Campbell. Defendant said “I just wish you lived closer to me” and “it would be cool if we were closer so we could have an afternoon fuck if we wanted.” They discussed “Scotty’s” masturbation history, and defendant asked Clough to “jack off for me” and “tell me everything that you are doing while you jack off.”
At Clough’s request, defendant again re-sent the same “x” photo. Defendant tried to convince Clough to engage in phone sex, but Clough expressed reluctance. He said “u relly arent gonna come here?” and defendant replied “I don’t know I would like to.” Defendant told Clough that he would like to orally copulate him “if you would let me.” He asked Clough “could you fall in love with me and live with me forever.” Defendant also asked Clough to “think of me tonight when you are jacking off ok.” The conversation ended shortly thereafter with defendant encouraging Clough to consider phone sex the following week.
On March 9, 1999, Clough initiated a conversation with defendant. Defendant responded by sending Clough some photos in which he was fully dressed. Defendant suggested that Clough come to his workplace where they could have sex in his office.
Clough was unable to print out a log of this conversation.
On March 17, 1999 (Counts 4 and 5), Clough again initiated contact with defendant. Defendant sent Clough one new photo and one photo he had previously sent. The new one was a photo of one naked male digitally penetrating the anus of another naked male. The other photo was the “!2on1kid” photo. They discussed masturbation. Clough asked for more photos, and defendant said “are you a cop.” Clough said “hahaha, no fbi.” Referring to the new photo, defendant asked Clough if he would “do that with me.” Clough responded affirmatively. He also asked Clough if he would do what was depicted in the “!2on1kid” photo. Clough declined. They talked about masturbation some more, and defendant encouraged Clough to masturbate and describe it to him “because it gets me off thinking of what you are doing to yourself.” Defendant asked Clough if he wanted to touch defendant’s penis. Clough said “yes for sure.” Defendant said “hopefully someday,” and the conversation concluded.
On March 30, defendant initiated contact again. Clough again said that his “mom” was going to be leaving him alone. Defendant asked if Clough was “looking to hook up with someone” and said “I wish it could be me.” Defendant asked Clough if he had been masturbating while thinking of defendant, and Clough replied affirmatively. They talked more about masturbation, and Clough asked if defendant had a boyfriend. Defendant said he did, but “we have kinda have an open relationship.” Defendant asked Clough “would you do a threesome with us.” Defendant sent Clough photos of his boyfriend fully dressed.
On April 13, 1999 (Counts 6 and 7), defendant again initiated contact. He said he wished he could take Clough to Lake Tahoe “someday and make love [to] you outdoors under the moon.” Expressing frustration, Clough said “if u aint ever comin here u can tell me.” Defendant responded “I never say never.” When Clough continued to express frustration and said “get down here,” defendant mildly replied “I would if I could.” Clough responded “I don’t kno if i cud get there had a ride i wud go NOW!” They talked about masturbation and what “Scotty” looked like. Defendant again encouraged Clough to masturbate and describe his actions to defendant. Defendant continued to ask Clough for a photo and to suggest phone sex. At one point, defendant asked “can I lick your balls.” He also said “I wish you were closer I would come and get you.” Defendant noted that he lived in Sacramento. Clough asked “why cant u come here?” Defendant asked where they could meet that would be private. Clough said “my house, my frends extra house, that’s easy just getting u here is hard.” Defendant asked “what time would I be able to see you” and “could you get out of school,” but then he immediately said “you would probably have the cops waiting for me:)” Clough insisted “I AINT A SNITCH DUDE.” Defendant replied “ok ok, but that kind of shit scares me,” and suggested that “maybe sometime this summer we can meet.” Clough sulked “we aint gonna hook up i kno it.” Defendant responded “I would have to leave in the morning and be back before Kevin gets off of work . . . would that be acceptable.” Clough was agreeable. Defendant said “I think that can be arranged then.” They engaged in some more talk of masturbation. At Clough’s request, defendant again sent him the same “x” photo of himself that he had sent previously. Clough told defendant “get down here fool,” but defendant just responded “:)”
Their final contact was initiated by defendant at a little after 2:00 p.m. on November 2, 1999. Defendant offered Clough “some new self pics” and then sent some fully clothed snapshots of him and of his boyfriend. He again suggested that Clough “move in with us and we can take care of you.” This colloquy then occurred: C: “when”; D: “when do you want to”; C: “today”; D: “we have room come on down”; C: “u ll pick me up in 3 hrs?”; D: “I’m sure you mom will just love that”; C: “shes cool ok ill see ya in a bit”; D: “LOL” “I’m sure she would have us arrested”; C: “want directions”; D: “you are so funny.” Defendant made it clear that he did not believe this was a viable plan.
They had continued to have contact on numerous occasions between April and October, but none of those contacts led to a charged offense. At least seven of these contacts were initiated by defendant.
“LOL” is used on the Internet as an acronym for “laughing out loud.”
When Clough said that his mom would like to meet defendant, defendant said “she would want to meet me to have me arrested.” They engaged in a little sex talk, and defendant said “I wish you lived closer.” Clough said “tell me now that u are coming here in the next 2 weeks.” Defendant replied “I would come and get you if you lived in Sac.” When defendant refused to set a time to meet, Clough said he had to go. Clough said “i cud have met like 500000000 guys by now.” Defendant said “[w]ell if that’s what you want, just be very careful there are alot of fucking weirdos out there.” Defendant said he would take Clough off his buddy list if Clough wanted. Clough responded affirmatively. Defendant said “I guess its better that we didn’t meet in person who know what would have happened.” He also said “how do I know you are who you say you are.” “I really don’t even know you.” Clough sniped back, and defendant ended the conversation with “have a good life Scotty.”
Clough’s supervisor, David Hewitt, was also conducting a proactive Internet investigation. Hewitt created an AOL profile that identified him as a fictitious 13-year-old boy named “Ryan” who lived in San Jose using the screen name “Insanjose4u.” On November 2, 1999, (Count 8), Hewitt was online using his “Ryan” persona in the “BarelylegalM4oldrM” chat room when he received an instant message from defendant. Hewitt began to “chat” with defendant. Because Hewitt recognized defendant’s screen name from Clough’s contact with defendant, he contacted Clough, and Clough sat in Hewitt’s office while Hewitt conversed with defendant. Defendant emailed two photographs to Hewitt. One was the same “x” photo of defendant that he had sent to Clough. The other was a photo of defendant fully dressed.
Hewitt described engaging in sexual activity with an “older guy” he had met in a chat room. Hewitt asked defendant if “Ryan” was “2 young for you,” and defendant responded “[n]o just as long as your not a cop.” After defendant told Hewitt that he worked at a movie theater, Hewitt asked if defendant would take him to the movies “one day.” Defendant said “I would love to” but “only if you let me play with you in the back of theatre.” Defendant claimed “I can make you shoot into the popcorn and then we can eat it.” He asked Hewitt “is your cock hard now.” Hewitt responded affirmatively. Defendant suggested phone sex, but Hewitt declined, “not on the first date.” Hewitt asked defendant “would you like to get together someday, and go to the movies.” Defendant said “maybe” and insisted that he would not meet Hewitt unless they talked by phone first. Defendant asked Hewitt to put him on his “buddy list.” He also asked Hewitt “are you going to jack off thinking about my pics.” Hewitt responded “i have and will.” Hewitt had a second chat with defendant the following day, and then he turned the investigation over to Clough.
On November 9 (Counts 9 and 10), defendant initiated another contact with “Ryan.” Defendant and Clough, who had taken over “Ryan’s” persona from Hewitt, discussed masturbation. Defendant said his name was Marty. Defendant asked Clough “would you meet me,” and Clough asked where he lived. After defendant explained that he was 140 miles away, defendant said “if we were closer would you let me pick you up” and “would you let me kiss you.” Defendant said he had a boyfriend “but we have an open relationship.” He asked Clough to send him a photo, but he did not want Clough to send it to his home. “I guess I’m a little nervous with you having my home address.” “[N]ever know you might be working for the cops LOL.” “[Y]our dad might be a cop and find out and have me arrested.” Clough asked “[y]ou can get arrested if I send my picture[,]” and defendant replied “probably not” “but we get sexual on the puter I’m not sure if that is illegal or not.” When Clough asked “[c]an anything happen to me,” defendant responded “I don’t think anything can happen to either of us and certainly not to you . . . .”
Clough asked “[w]as it illegal for you to send me those x pictures.” Defendant said “yeah” “ru going to call the cops now.” Clough said “NO.” Defendant said “[t]he laws says someone your age doesn’t really know what he wants.” “[T]he laws say you shouldn’t at the age really know what you want and someone like me can take advantage of that because I am older.” Clough inquired “[d]o YOU want to be with me?” Defendant said “I would not hesitate because you sound like a really cool guy.” Clough said “I know im 13, but I know what I want!” He asked if defendant had been with anyone his age, and defendant said “the youngest was 14 and I was about 29.” “[I]t was really fun and he loved me too we messed around for 6 months then he moved.” Defendant said “you read in the paper all the time about guys getting arrested because they had sex with someone underage.” “I think it sucks, because its usually the parents that have them arrested.” Defendant asked Clough about having phone sex. Clough asked “[i]s that illegal?” Defendant said “you know I don’t know.”
During this conversation, defendant sent Clough a group of photos that included fully clothed photos of defendant and his boyfriend, the “x” photo of defendant, the “!2on1kid” photo and one new photo of two males with erect penises sitting side by side. After sending these photos, defendant said “don’t get me arrested.” Clough asked “[c]an you get arrested for sending me that [the !2on1kid photo]?” Defendant said “probably” “because of your age I think.” They talked more about masturbation, and defendant again encouraged Clough to masturbate and describe his actions to him. Defendant told Clough that he wanted to “start licking” his body.
On November 30, 1999, defendant contacted Clough again, and they chatted briefly about masturbation. On January 11, 2000 (Count 11), defendant contacted Clough again. He sent several photos to Clough including the “x” photo of himself. Defendant asked Clough “so when you gonna come and be our son hehe.” Clough said he had had phone sex with someone else, and they discussed having phone sex. On February 1, 2000, defendant contacted Clough again. They had a fairly innocent conversation with no explicit sexual content.
Clough was using the screen name “DaSpunkyboy” for this conversation.
Clough decided to terminate his investigation by obtaining an arrest warrant for defendant and a search warrant to search his residence. On February 8, 2000, Clough went to defendant’s Sacramento County residence to execute the search warrant. Defendant was not at home when the officers arrived, but he came home during the search. Defendant was “very cooperative” and “cordial” and admitted that he had been “chatting with people on line.” He said that he had had sexually explicit conversations with two 14- or 15-year-old boys and had sent pornographic photographs to them. Defendant admitted that he knew that Ryan and Scotty were between 13 and 15 years old. Defendant also admitted that he knew it was illegal to send the photographs to minors. Defendant explained that his “goal” while in a chat room was to “masturbate himself and have . . . whomever he’s talking to masturbate themselves in the course of a conversation.” Defendant wanted himself and Scotty and Ryan to masturbate to the point of ejaculation. He said that he had not engaged in any sexual contact with a minor since 1988. Clough asked defendant if he would have engaged in sexual contact with Scotty or Ryan if they had lived nearby. Defendant said “it was a good possibility.” However, he “hoped that he wouldn’t actually follow through with it” and he “didn’t want to be caught by the police,” “hurt his family” or “ruin his life.” The police arrested defendant and seized his computer.
II. Procedural Background
Defendant was originally charged by information with 10 counts of attempted distribution or exhibition of harmful matter to a minor over the Internet (Pen. Code, §§ 288.2, subd. (b), 664) and one count of possession of child pornography (Pen. Code, § 311.11, subd. (a)). It was further alleged that he had suffered six prior serious felony convictions within the meaning of Penal Code sections 667, subdivisions (b) to (i) and 1170.12. At his original jury trial, he was convicted of nine of the ten attempted distribution counts, acquitted of one attempted distribution count based on the December 23, 1998 conversation, and acquitted of the possession of child pornography count. The court struck the prior conviction findings as to eight of the nine counts, imposed a 25 years to life sentence on the remaining count and imposed consecutive mitigated terms for the remaining counts. His original sentence was an indeterminate term of 25 years to life consecutive to a determinate term of three years and a $500 restitution fund fine. Defendant appealed, and this court reversed the judgment due to a prejudicially erroneous jury instruction. (People v. Jensen (2003) 114 Cal.App.4th 224.) The matter was remanded for retrial.
Over defendant’s objections, the trial court granted the prosecution’s motion to amend the information. The amended information charged defendant with eight counts of attempted distribution or exhibition of harmful matter to a minor over the Internet (Pen. Code, §§ 288.2, subd. (b), 664) (the eight felony counts that defendant had been convicted of in the original trial) and three new counts of attempted lewd conduct with a minor (Pen. Code, §§ 288, subd. (a), 664). The amended information, like the original information, alleged that defendant had had suffered six prior serious felony convictions within the meaning of Penal Code sections 667, subdivisions (b) to (i) and 1170.12. Defendant waived his right to a jury trial on the prior conviction allegations, and they were bifurcated.
Defendant’s defense at trial to the attempted distribution counts was that he had not had the intent to seduce a minor and therefore was guilty of only the lesser included offense of misdemeanor attempted distribution of harmful matter to a minor (Pen. Code, § 313.1, subd. (a)). His defense to the attempted lewd conduct counts appeared to be that he did not really believe that Ryan and Scotty were actually under the age of 14. The sole defense witness was Dr. James Herriot, a “sexologist” who testified as an expert on sexuality communication on the Internet. Herriot testified that the Internet was “mostly about” entertainment rather than “real life.” He described a chat room as an “entertainment bubble” in which people engage in “imaginative play behavior.”
In rebuttal, the prosecution presented the testimony of San Jose Police Officer Steve McEwan. McEwan testified as an expert on the use of the Internet to exploit children. McEwan testified that adults use chat rooms to make contact with children. The adult then moves the conversation to a private instant messaging or email exchange. An adult might send pornography to a child “to justify to the children, hey, this is normal, this is okay, kids do this all the time.” McEwan testified that he had personally experienced that child molesters behaved differently online than other persons. Those with a criminal history of child molestation were more cautious and wary and would seek to verify that the person with whom they were communicating was actually a child. They would ask for pictures or a phone call. McEwan also testified that he would consider a person who had been convicted of molesting three different victims to be a child predator. Such a person would be “very cautious.”
Defendant’s trial counsel did not object to McEwan’s testimony on this subject.
Defendant waived the statute of limitations so that the court could instruct on the lesser included misdemeanor attempted distribution offenses. Defendant’s trial counsel conceded in his closing argument that defendant had committed misdemeanor attempted distribution of harmful matter and asked the jury to convict defendant of the misdemeanor lesser included offenses. He contested only the intent to seduce element of the felony attempted distribution charges.
The jury deliberated for one day. It returned guilty verdicts on five of the eight felony attempted distribution counts and the three attempted lewd conduct counts, and found defendant guilty of the lesser included offense of misdemeanor attempted distribution as to the remaining three counts (Counts 1, 3 and 11). Defendant admitted the prior conviction allegations.
The court refused to reduce the felony counts to misdemeanors. The trial court struck the prior conviction findings as to all of the counts except for one of the attempted lewd conduct counts (Count 5). The court imposed a 25 years to life term for that count, and it imposed a three-year determinate term for another of the attempted lewd conduct counts, a one-year determinate subordinate term for the remaining attempted lewd conduct count, consecutive subordinate terms of four months each for four of the felony attempted distribution counts, and a concurrent term for the remaining felony attempted distribution count (Count 6). The total sentence was 25 years to life consecutive to a determinate term of five years and four months. The court imposed a $10,000 restitution fund fine. Defendant filed a timely notice of appeal.
Concurrent jail terms were imposed for the misdemeanor counts.
The probation report recommended imposition of a sentence of 200 years to life and a $10,000 restitution fund fine.
III. Discussion
A. 1983 Prior Convictions
Defendant contends that the trial court prejudicially erred in permitting the prosecutor to introduce evidence of his 1983 prior convictions in rebuttal after the prosecutor had disavowed during in limine proceedings any intent to introduce evidence of these convictions so long as defendant did not testify.
1. Background
Initially, in advance of the retrial, the prosecution filed an in limine motion seeking admission of defendant’s prior conduct under Evidence Code section 1108. This prior conduct consisted of acts with four victims prior to 1984 and multiple acts with one victim in 1988. The prosecution subsequently filed a trial brief in which it again sought admission of the prior conduct under Evidence Code section 1108. Defendant sought exclusion of this evidence under Evidence Code section 352, both as propensity evidence and as potential impeachment evidence if defendant chose to testify.
During an in limine hearing, the following colloquy occurred. “THE COURT: All right. Turning to some of the other issues. There’s a request to exclude certain evidence under Evidence Code section 352. I understand, Mr. Liccardo [the prosecutor], that absent Mr. Jensen testifying, you do not intend to bring into evidence the 1984 [sic] convictions on two [sic?] counts of 288. [¶] MR. LICCARDO: That’s correct. [¶] THE COURT: All right. So we are dealing just with, at this point with the 1991 convictions, five counts of 288(a). [¶] MR. LICCARDO: Yes. [¶] THE COURT: All right. And, Mr. Nickerson [defendant’s trial counsel], you want to make your objection?”
Defendant’s trial counsel proceeded to argue that the 1991 prior convictions should be excluded because they were “too remote in time; extremely prejudicial” and “not precisely relevant,” because the charged offenses did not involve any touching. The court ruled that the 1991 convictions were admissible. It found that they were not too remote in time from when the charged conduct had begun in 1998 and that the prior convictions had significant probative value with regard to defendant’s intent, which outweighed any prejudicial effect. Ultimately, it was agreed that, if defendant decided to testify, a hearing would be held to determine the admissibility of any prior convictions other than the 1991 convictions.
During Hewitt’s testimony, the prosecutor introduced Exhibit 14, which documented defendant’s convictions by plea in 1991 of committing five counts of lewd conduct on a minor under the age of 14 on Danny C. in 1988. Danny C. also very briefly testified. Danny was friends with defendant in 1987 and 1988, and defendant took him out to eat, to Great America and for motorcycle rides. Danny testified that, over a period of several months, defendant repeatedly orally copulated and masturbated him. Danny was between 11 and 13 years old at the time, and defendant was 26 years old.
After the prosecution had finished presenting its case-in-chief, defendant’s trial counsel told the court that Herriot would be testifying, just as he had at the original trial, about the fantasy and entertainment aspects of chat rooms. During his cross-examination of Herriot, the prosecutor asked Herriot whether he would expect the behavior of a “convicted child molester” in a chat room to be different from the behavior of “someone such as yourself.” Herriot said he “wouldn’t know what precisely to expect.” The prosecutor later asked Herriot: “Would you expect convicted child molest[e]rs to behave differently when engaging in chat rooms with purported minors than other persons?” This time, Herriot said that, while a convicted child molester “no doubt has thoughts which are different” from those of other persons, it was “a very healthy thing” for such a person to “work out their own internal issues” in this medium rather than going out “in real life [and] actually do[ing] any of those acts again.” “And the Internet can be a very good place, once again, if they don’t leave the keyboard and they just stay there it can be an excellent place to explore those sides of themselves and to get mirrors of people who are willing to play act the other side, which I guess in this case somebody was play acting the other side.”
After Herriot testified for the defense, the prosecutor sought permission to introduce documentary evidence of defendant’s 1983 convictions. He asserted that this evidence was now necessary to rebut Herriot’s “disingenuous avoidance” on cross examination of the prosecutor’s question of whether a convicted molester would “behave differently than a typical person who is engaging in role playing in chat rooms.” The prosecutor argued that evidence of the 1983 convictions was necessary to show the jury that defendant had “very compulsive tendencies toward molestation” which rebutted the idea that he was merely role playing during his chats with Clough and Hewitt.
Defendant’s trial counsel objected. He asserted that the timing of the introduction of this evidence was unduly prejudicial, the 1983 convictions were remote in time, and Herriot’s testimony provided no basis for rebuttal evidence of this type. The trial court found that the 1983 convictions were probative of defendant’s intent. They were no more inflammatory than the other prior convictions, were not too remote, and would not be time consuming to introduce. The court ruled that the evidence was admissible over defendant’s objections.
The prosecution introduced Exhibit 20, which showed that defendant had been convicted by plea in 1983 of committing two counts of lewd conduct on Dennis, two counts of lewd conduct on Derrick, and one count of oral copulation with a minor on Keith D. in 1982 and 1983.
The prosecutor mentioned the 1983 prior convictions in his argument to the jury. “In this case the defendant’s paranoid because he’s been arrested and convicted on two separate occasions for child molestation and he’s not about to get caught again.” “[A]s you’ll see from Exhibits 14 through [sic] 20, the defendant has been convicted on two prior occasions for child molestation and one case for a single victim. . . . On another occasion you’ll see charges relating to three other victims. . . . [¶] So, one way you might surmise that he had an intent to seduce a child is that if you look at his history you realize he’s a child molester and he likes to molest children. And if people aren’t drawn to that kind of conduct for some kind of compulsive reason, some reason they find difficult to control, it’s hard to imagine why they would molest a child. I submit to you that the defendant is a compulsive child molester.” Defendant “has good reason to be cautious. We know he’s been arrested twice before and convicted twice before for child molestation.” “Of course, a guy with a lot of prior arrests is going to be very careful.”
2. Analysis
Defendant claims that the trial court abused its discretion in admitting evidence of the 1983 convictions. He contends that the court’s ruling improperly allowed the prosecutor to renege on his in limine representation based on the specious claim that the evidence was necessary to rebut Herriot’s testimony. Defendant also maintains that the introduction of this evidence in rebuttal violated Evidence Code section 352 because it was inflammatory and unduly prejudicial, and the 1983 convictions were too remote in time.
“The decision to admit rebuttal evidence rests largely within the discretion of the trial court and will not be disturbed on appeal in the absence of demonstrated abuse of that discretion. [Citations.] . . . ‘[P]roper rebuttal evidence does not include a material part of the case in the prosecution’s possession that tends to establish the defendant’s commission of the crime. It is restricted to evidence made necessary by the defendant’s case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt.’ Restrictions are imposed on rebuttal evidence (1) to ensure the presentation of evidence is orderly and avoids confusion of the jury; (2) to prevent the prosecution from unduly emphasizing the importance of certain evidence by introducing it at the end of the trial; and (3) to avoid ‘unfair surprise’ to the defendant from confrontation with crucial evidence late in the trial.” (People v. Young (2005) 34 Cal.4th 1149, 1199.)
Herriot’s testimony was aimed at supporting an inference that defendant was engaging in “play behavior” for entertainment purposes rather than intending to arouse himself and seduce “Ryan” and “Scotty.” Evidence that defendant had a lengthy history of engaging in “real life” sexual activity with numerous young boys tended to rebut the inference that his conversations were merely play acting. The trial court could have concluded that evidence of the 1983 convictions was appropriately introduced to rebut Herriot’s testimony. While the introduction of the additional convictions at the end of the trial had the potential to emphasize this evidence, there was no “unfair surprise.” The defense was well aware of this evidence and, in advance of trial, understood that the prosecution intended to introduce this evidence in its case-in-chief. Although the prosecutor did state during in limine motions that he did not “intend” to introduce this evidence unless defendant testified, his statement of intent did not preclude him from subsequently seeking permission from the trial court to introduce this evidence upon an appropriate basis. As the trial court could have properly concluded that Herriot’s defense testimony provided a proper basis for the introduction of this evidence in rebuttal, it was not an abuse of discretion to admit this evidence as rebuttal evidence.
Nor did the trial court abuse its discretion in concluding that the 1983 convictions were not too remote in time and were not unduly prejudicial or inflammatory. “[T]he probative value of the evidence must be balanced against four factors: (1) the inflammatory nature of the uncharged conduct; (2) the possibility of confusion of issues; (3) remoteness in time of the uncharged offenses; and (4) the amount of time involved in introducing and refuting the evidence of uncharged offenses.” (People v. Branch (2001) 91 Cal.App.4th 274, 282.)
There was no significant possibility of confusion of issues. Defendant’s sexual intent was the only contested issue at trial. The prosecution maintained that defendant intended to “seduce” “Ryan” and “Scotty” by means of sending them pornographic photos, and it asserted that he encouraged them to masturbate in order to sexually arouse himself. Defendant’s prior sexual offenses with male minors was highly probative of his intent to “seduce” young males and of his sexual intent in encouraging such young boys to masturbate.
While the 1983 convictions increased both the number of prior convictions and the number of prior victims, the fact that the only evidence of the 1983 offenses was documentation of defendant’s convictions, without any facts, significantly reduced any risk of provoking an emotional response by the jury. Because there were no facts, the 1983 offenses were, individually, less inflammatory than the offenses against Danny, which Danny described in his testimony at trial.
Viewed in context, the 1983 convictions were not remote in time. The charged offenses occurred in 1998 through 2000. The 1991 convictions were based on offenses in 1988. The 1983 convictions were based on events in 1982 and 1983. There were only five years between the 1983 offenses and the 1988 offenses, while a decade elapsed between the 1988 offenses and charged offenses. No time was involved in introducing evidence of the 1983 offenses, as the prosecutor simply introduced the documentary evidence with no testimony whatsoever.
Since there was little risk of prejudice, and the 1983 convictions added considerable fortification to the 1991 convictions in evidencing defendant’s sexual intent toward young boys, the trial court did not abuse its discretion in concluding that the probative value of this evidence was not “substantially outweighed” by the potential for undue prejudice. (Evid. Code, § 352.)
B. Ineffective Assistance
Defendant contends that his trial counsel was prejudicially deficient because he did not base his opposition to the amendment of the information on the contention that it was vindictive prosecution. He claims that opposition based on vindictive prosecution would have been successful, and he claims that the addition of the three attempted lewd conduct counts prejudiced him at trial.
1. Background
In advance of the retrial, the prosecution moved to amend the information to add three counts of attempted lewd conduct (Pen. Code, §§ 288, subd. (a), 664). The attempted lewd conduct counts were based on defendant’s attempts to have “Scotty” and “Ryan” masturbate. The prosecution stated in its motion that “Counsel for the People [during plea negotiations] informed Mr. Nickerson [defendant’s trial counsel] of its intention to amend the Information to add attempted §288 (a) charges if Defendant did not plead prior to trial . . . .” The prosecution asserted that defendant would not be prejudiced by the amendment of the information because “[t]he People will not rely upon any facts beyond those already presented at the first trial.” Defendant’s trial counsel filed opposition to the motion to amend. He argued that the motion was untimely and that an amendment would violate “law of the case.” His “law of the case” argument was that the amendment of the information would be an attempted “end run around” this court’s decision reversing the original judgment. The superior court concluded that “the amendment is timely and is not precluded due to any reason connected with the procedural history of the case.”
2. Analysis
When a defendant challenges his conviction based on a claim of ineffective assistance of counsel, he must prove by a preponderance of the evidence that counsel’s performance was deficient and that his defense was prejudiced by those deficiencies. (People v. Ledesma (1987) 43 Cal.3d 171, 218; Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) “The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.” (Strickland, at p. 694.) “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Ibid.)
If an objection on the ground of vindictive prosecution would have been successful, it necessarily follows that defendant’s trial counsel was deficient in failing to make such an objection since his objection to the amendment of the information on other grounds makes it clear that he did not make a strategic choice to omit a potentially successful objection. The real question is whether an objection on the ground of vindictive prosecution had a reasonable probability of success.
“Where the defendant shows that the prosecution has increased the charges in apparent response to the defendant’s exercise of a procedural right, the defendant has made an initial showing of an appearance of vindictiveness. [Citation.] The defendant need not demonstrate that the prosecution in fact acted with a retaliatory motive. [Citation.] Once this prima facie case is made, the prosecution bears a ‘heavy burden’ of dispelling the appearance of vindictiveness as well as actual vindictiveness.” (Twiggs v. Superior Court (1983) 34 Cal.3d 360, 371 (Twiggs).) “[O]nce the presumption of vindictiveness is raised the prosecution bears a heavy burden of rebutting the presumption with an explanation that adequately eliminates actual vindictiveness. In this regard, the trial court should consider the prosecutor’s explanation in light of the total circumstances of the case in deciding whether the presumption has been rebutted. The prosecution should be required to show that facts that would legitimately influence the charging process were not available when it exercised its discretion to bring the original charges.” (Twiggs, at p. 374.)
“[T]he subjective motivation of the individual prosecutor is not relevant. The prosecutor’s reassessment of the evidence alone cannot rebut the presumption of vindictiveness. The prophylactic purposes of the [presumption of vindictiveness] require that it be rebutted by quantifiable new facts or changed circumstances. A recital of objective factors is necessary to free the defendant from the apprehension of retaliation.” (In re Bower (1985) 38 Cal.3d 865, 880, fn. 7 (Bower), italics added.) “In fact, when the cases discuss the possibility of rebutting a presumption of vindictiveness they refer only to a situation in which the prosecuting authority can show that ‘it was impossible to proceed on the more serious charge at the outset.’” (Bower, at pp. 878-879.) “[T]his legal presumption cannot be rebutted by the prosecutor’s declaration that he or she was motivated by a reassessment of the evidence against the defendant rather than by any desire to punish the exercise of a protected right. In order to rebut the presumption of vindictiveness, the prosecution must demonstrate that (1) the increase in charge was justified by some objective change in circumstances or in the state of the evidence which legitimately influenced the charging process and (2) that the new information could not reasonably have been discovered at the time the prosecution exercised its discretion to bring the original charge.” (Bower, at p. 879.)
The Attorney General contends that defendant cannot establish prejudice on appeal because there is no way to know whether the prosecutor would have been able to rebut the presumption of vindictiveness had defendant’s trial counsel raised this objection below. Yet it is undisputed that the new charges were not based on any change in the state of the evidence or any new information that was discovered by the prosecution after the original trial. The prosecutor affirmatively represented to the trial court that “[t]he People will not rely upon any facts beyond those already presented at the first trial” to prove the new charges.
This leaves the Attorney General to argue that the “objective change in circumstances” was this court’s opinion reversing the original judgment. He contends that this court’s construction of the statute defining the felony attempted distribution offense in its opinion unforeseeably altered the circumstances, thereby necessitating the new charges. We cannot accept this explanation as a basis for rebutting the presumption of vindictiveness. The evidence presented at the original trial, like the evidence presented at the retrial, supported charges of attempted lewd conduct, a far more serious offense than felony attempted distribution. Absolutely nothing prevented the prosecutor from originally pursuing such charges, and nothing in this court’s opinion in defendant’s appeal from the original judgment had anything to do with the viability of such charges. It will often be the case that the reversal of a judgment for some type of error, whether evidentiary or instructional, may make it more difficult for the prosecution to succeed at a retrial. Were this not so, the error would not have been found to be prejudicial. However, this common circumstance does not rebut the presumption of vindictiveness that arises when the prosecution at retrial adds additional, more serious charges to those that the defendant originally faced.
The record before us conclusively establishes that the prosecution would not have been able to rebut the presumption of vindictiveness. It follows that, had defendant’s trial counsel premised his objection to the amendment of the information on the ground of vindictive prosecution, the trial court would have been obligated to deny the prosecution’s motion to amend.
The next question is the remedy. Obviously, the attempted lewd conduct convictions must be stricken. Although defendant claims that the charging of the attempted lewd conduct counts at trial prejudiced him before the jury on the other counts, we can find nothing in the appellate record to support this contention. The jury did not unreflexively convict defendant of all of the charged offenses. The jury’s decision to convict defendant of only the lesser included offenses as to three of the counts demonstrates that it gave full consideration to his defense. Defendant’s trial counsel’s error is fully remediated by the striking of the three attempted lewd conduct counts that the prosecution should have been precluded from pursuing.
C. Imposition of Harsher Sentence After Retrial
Defendant contends, and the Attorney General concedes, that the trial court was precluded from imposing a longer prison sentence and a larger restitution fund fine after retrial. Defendant’s original sentence was 25 years to life consecutive to a three-year determinate term. A $500 restitution fund fine was imposed. His sentence after retrial was 25 years to life consecutive to a determinate term of five years and four months and a $10,000 restitution fund fine. “[A] defendant should not be required to risk being given greater punishment on a retrial for the privilege of exercising his right to appeal.” (People v. Ali (1967) 66 Cal.2d 277, 281; see also People v. Hanson (2000) 23 Cal.4th 355.) The appropriate remedy is to order the trial court to resentence defendant to a prison sentence that does not exceed his original prison sentence and to reduce his restitution fund fine to no more than his original restitution fund fine.
Defendant contends that the trial court violated Penal Code section 654 when it three times imposed punishment for both an attempted lewd conduct count and an attempted distribution count that occurred on a single occasion. Since our disposition of this case directs that the three attempted lewd conduct counts be stricken, eliminating any punishment attributable to those counts, we need not address defendant’s Penal Code section 654 contention.
IV. Disposition
The judgment is reversed, and the matter is remanded to the trial court for resentencing. The trial court is directed to strike the three attempted lewd conduct counts, to reduce the restitution fund fine to no more than $500 and to resentence defendant to a prison sentence that does not exceed the prison sentence imposed after defendant’s original trial.
WE CONCUR: McAdams, J., Duffy, J.