Opinion
C075893
08-08-2017
THE PEOPLE, Plaintiff and Respondent, v. CRAIG BENIDICT LEE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F3571)
A jury convicted defendant Craig Benidict Lee on three counts of lewd and lascivious acts with a child under the age of 14 (Pen. Code, § 288, subd. (a)) and one count of failing to notify law enforcement of his address change while registered as a sex offender (§ 290.013). The trial court sentenced him to seven years eight months in prison and orally imposed various fines and fees, including a $160 court operations assessment, which the abstract of judgment lists as $130.
Undesignated statutory references are to the Penal Code.
Defendant now contends (1) a statement attributed to the victim by her cousin was inadmissible hearsay; (2) defendant's attorney was ineffective in failing to object to inadmissible notebook evidence; (3) the trial court erred in instructing the jury that "fresh complaint" evidence could be considered for the truth; (4) the trial court erred in admitting evidence of his prior sex crime conviction; (5) the trial court incorrectly instructed the jury on the elements for failing to notify law enforcement of a change of address; and (6) the abstract of judgment must be corrected to reflect the orally imposed court operations assessment.
We will affirm the judgment and direct the trial court to correct the abstract of judgment to reflect the orally imposed $160 court operations assessment.
BACKGROUND
Defendant and the victim's mother worked together at a school and began a relationship. Defendant said the victim was five years old when his relationship with the mother began. Defendant and the mother had a daughter together. That daughter was five at the time of trial and the victim was thirteen. The victim had other siblings too.
The victim said defendant slept in the mother's room. Defendant testified at trial that he did not actually live there but he spent a few nights a week watching the children. But the victim's younger brother testified defendant lived in the apartment with the family. The jury saw a police interview of defendant recorded a few months before trial, in which defendant said he spent 60 to 70 percent of his time at the home. A county representative testified defendant reported his address as transient because staying at his girlfriend's house might get her evicted; he spent most of his days there but slept in a vehicle at Shasta Lake five or six nights a week.
According to the victim, when she was in sixth grade her mother took her and her younger brother to school each morning and defendant picked them up; she and her brother were with defendant in the afternoons while her mother worked and her half-sister attended school. The victim said she sometimes asked defendant for help with homework in the afternoons and sometimes he helped her while the two of them sat on the end of the mother's bed. She explained that on three or four such occasions defendant tickled her over her clothing on her private parts, then rolled her over and moved up and down with his private parts touching her butt. She described the touching as "weird" and "awkward" and said defendant would "creep her out" when he touched and rubbed against her that way. According to the victim's grandmother, the victim told the grandmother defendant had an erection when this happened; the victim said she told her grandmother the truth at the time but the victim denied at trial that defendant had an erection. Defendant denied "any memory of that kind of thing happening" and said he was shocked and appalled by the accusation.
Some of the victim's testimony was corroborated by the testimony of her first cousin, who recounted that she and the victim were talking in the victim's bedroom when the victim revealed that defendant had tickled her, touched her private parts (both her "down" area and her chest area), then rolled her over and moved in an "up and down motion" and that defendant "play[ed] it off as just messing around" and told the victim not to tell anybody. The cousin said she told her mother and then her grandmother what the victim said about defendant.
The grandmother testified she had twin daughters: one was the cousin's mother and the other was the victim's mother. The grandmother said she raised the topic of defendant's touching with the victim a few weeks after hearing about it from the cousin. She said, during that conversation, the victim acknowledged what she told the cousin and described defendant's touching and rubbing against her as "creepy." The victim begged the grandmother not to tell the victim's mother right away, but a few weeks later, after the holidays, the victim's grandparents (the victim's mother's parents) spoke to the victim's mother about it. Defendant walked in as the grandmother was mentioning defendant having had an erection, and the mother angrily ordered her parents out of the apartment. The victim said after her grandmother left that day, she told her mother what defendant had done, but she and her family never talked to her grandmother again. It was the grandmother who later triggered the involvement of law enforcement authorities.
The cousin's trial testimony was inconsistent with the victim's testimony in two ways relevant to this appeal: (1) the cousin said the victim told her defendant's touching had included touching of the victim's chest area but the victim said it did not, and (2) the cousin said she read words the victim wrote in a journal or notebook about the touching and was later told by the victim that the victim's mother had destroyed the notebook; in contrast, the victim said she started a notebook to record defendant's misconduct ("Craig's Bad List") but she did not write in it or share it with her cousin or say that her mother had destroyed it. The cousin said she read the notebook in its entirety and the victim recorded in it what defendant was doing to the victim and also wrote that the victim's mother did not believe her and the victim wanted to kill herself because no one ever believed her. Defendant did not object to any of these elements of the cousin's testimony at trial.
Defendant's prior conviction and its legal consequences are at issue on appeal, so we briefly touch on that history. Defendant was 60 at the time of trial. He admitted that in the summer of 2007, after he had lived with the victim's mother and her son and daughter (the victim) for about a year, the victim's mother found child pornography on his computer and moved out with her children. They were separated for a month or two, but they were back together before the birth of their daughter in February 2008. Defendant explained that between 1999 and 2002, he had downloaded about 15 sexually explicit images of children as young as five and six. Defendant was eventually convicted of eight counts of section 311.11, subdivision (a), possession or control of obscene matter depicting minor[s] engaging in or simulating sexual conduct, and the trial court allowed facts of the conviction to be admitted for proof of a continuing obligation for him to register as a California sex offender as well as for propensity evidence under Evidence Code section 1108.
The trial court offered to let the jury hear only that defendant had sex offender status, which would establish an element of the crime of failing to register his addresses, but defendant rejected the offer. He wanted the crime to be described as it was in the 2008 conviction.
The trial court instructed the jury that section 290.013 required the prosecutor to prove the prior conviction leading to the registration requirement and also required the prosecutor to prove that defendant resided in the county, knew about his obligation to identify every address at which he resided, knew about his obligation to promptly register any change of address or transient location with law enforcement, willfully failed to register with the county sheriff or city police department.
Official records admitted at trial showed that, during the relevant time period, defendant generally registered his address as transient; he registered himself as living with the victim's family only once in January 2011. Defendant explained he was registered at the victim's address only briefly because it was subsidized housing and one of the neighbors complained about the presence of a registered sex offender. But he acknowledged routinely signing a statement indicating that if he had more than one residence, he had to report each address regardless of the number of days or nights spent there.
The jury found defendant guilty on three counts of lewd and lascivious acts with a child under the age of 14 (§ 288, subd. (a)) and one count of failing to notify law enforcement of his address change while registered as a sex offender (§ 290.013). The trial court sentenced him to seven years eight months in prison: three years for the first molestation count, two years for the second and third molestation counts and eight months for the registration violation. The trial court explained the sentence in detail, recounting the evidence supporting its conclusions. The trial court also orally imposed various fines and fees, including a $160 court operations assessment, which the abstract of judgment lists as $130.
Additional facts are included in the discussion to the extent they are relevant to the contentions on appeal.
DISCUSSION
I
Defendant contends a statement attributed to the victim by her cousin was inadmissible hearsay.
A
The cousin testified at trial that the victim told her defendant touched the victim's chest. The prosecutor moved in limine for the admission of the cousin's testimony under the fresh complaint doctrine. The prosecutor cited People v. Brown (1994) 8 Cal.4th 746 (Brown), which described the doctrine as recognizing that testimony regarding the timing and circumstances of an initial report of a sex offense is admissible as non-hearsay even if the report was not made immediately or voluntarily, so long as the testimony is not more prejudicial than probative. (Id. at pp. 748-750.) In this case, the trial court noted the reluctance of the victim and her mother to testify and granted the motion allowing the cousin's testimony. There was no objection from defendant.
The cousin who offered the testimony was the same age as defendant and their mothers were twins. The victim and the witness considered themselves like sisters. Their grandmother testified that she triggered the investigation. She said she first heard about it from her other granddaughter (the cousin), then confirmed the facts with the victim and tried to address the matter with her daughter (the victim's mother) and defendant before she finally reported it to Child Protective Services (CPS). CPS (also called Child and Family Services) conducted an investigation and referred the matter to the Redding Police Department, which investigated further.
When the grandparents raised the matter with the victim's parents, the victim's mother eventually directed the grandparents to get out and never come back while defendant sat in silence. The victim never saw her grandmother again but the relationship between her mother and defendant continued even after the victim told her mother all that had happened. The victim testified at trial that she loved her mother and did not want to get her in trouble. Defense counsel said in his opening statement that the victim's mother believed the victim's allegations were untrue, but when he called the victim's mother as a witness and the trial court advised the mother that she could have criminal liability if she purposely helped defendant by hiding or disposing of the victim's notebook, the mother asserted her Fifth Amendment right not to testify.
The victim said she told her cousin and her grandmother the truth about what defendant was doing to her. The cousin testified the victim told her about the touching and described it as tickling in a "weird" way that involved touching her private area. The cousin said she told her mother and grandmother and also asked the victim about it again the next time they were together. On the later occasion, the cousin said the victim reported the touching had continued, adding that defendant would touch both her private area and her chest and that the victim should not tell anyone because he was just "playing around."
B
Defendant does not dispute that the admission of the cousin's testimony as non-hearsay fresh complaint evidence was proper, but he contends the cousin's testimony was also used impermissibly as hearsay to expand the victim's testimony and her report to law enforcement, broadening the victim's statements that defendant touched her "private parts" into a claim that defendant touched both the victim's pubic region and chest. Defendant claims evidence admitted under the fresh complaint doctrine must be limited to the bare facts of how a child victim's report of sexual abuse came to the attention of law enforcement, and the use in this case made it inadmissible hearsay. He adds that the evidence was inflammatory and prejudicial because it added an accusation about chest-touching that was not identified in the complaint or in the victim's testimony.
It is true that the witness testimony in Brown was limited to the fact that the victim made a report; the witness's testimony did not provide details and the victim's report was described only enough to explain why the witness believed and passed it on. (Brown, supra, 8 Cal.4th at p. 764.) But more detail may be admitted if a hearsay exception applies. (See People v. Daily (1996) 49 Cal.App.4th 543, 552.)
Here, the evidence was admissible as a prior inconsistent statement under Evidence Code section 1235. "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with [Evidence Code] Section 770." (Evid. Code, § 1235.) Evidence Code section 770 restricts the admission of prior inconsistent statements by requiring three indicia of reliability: (1) the witness must have testified, (2) the witness must have been given an opportunity to explain or deny the statement, and (3) the witness must not have been excused from further testimony. Those three elements were satisfied here.
During her testimony, the victim said defendant tickled her private parts, meaning her vagina. On cross-examination, the victim denied previously reporting to her cousin that defendant touched her chest. Defendant concedes Evidence Code section 1235 might fit the facts, but he claims the People are bound by the fresh complaint doctrine which they asserted before trial and the Attorney General is barred from raising the hearsay exception now. We disagree. The prosecutor's motion in limine cited People v. Daily, supra, 49 Cal.App.4th 543, which permitted greater detail regarding the victim's report based on a hearsay exception. (Id. at p. 552.) Moreover, defendant did not seek to restrict the cousin's testimony and did not object during the testimony or during a bench conversation afterward. In fact, defendant's counsel raised the chest-touching issue: before the cousin was called to testify, defense counsel elicited the victim's denial that she ever told her cousin defendant touched the victim's chest.
As support, defendant cites inapposite cases. (See People v. Burnett (1999) 71 Cal.App.4th 151, 172 [appellant convicted of an offense unrelated to the one established at the preliminary hearing]; Horn v. Atchison, Topeka & Santa Fe Railway Co. (1964) 61 Cal.2d 602, 605 [the concession of liability at trial precluded an appeal challenging liability]; Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488, 499 [an estoppel challenge could not be raised on appeal because it was not part of any trial theory]; and People v. Ramirez (2006) 143 Cal.App.4th 1512, 1522, 1525 [the trial court erred in admitting evidence under Evidence Code § 1240 because the victim's utterance was not spontaneous].) --------
Anticipating our conclusion, defendant argues his counsel was ineffective in failing to object to the cousin's testimony. But as we have explained, the chest-touching evidence was admissible. Counsel was not deficient for failing to make a futile objection or failing to advance a meritless argument. (People v. Diaz (1992) 3 Cal.4th 495, 562.)
II
Defendant next asserts his attorney was ineffective in failing to object to the notebook evidence.
The cousin testified that she read what the victim wrote in a notebook, which described the lewd acts and noted that the mother did not believe the victim and the victim wanted to kill herself because nobody believed her. The victim admitted labeling a notebook "Craig's Bad List" but denied writing in it or showing it to her cousin.
To succeed on a claim of ineffective assistance, defendant must prove that (1) trial counsel failed to act in the manner to be expected of a reasonably competent attorney acting as a diligent advocate, and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failing. (People v. Lewis (1990) 50 Cal.3d 262, 288.) We may reverse a conviction only if the record "affirmatively discloses that counsel had no rational tactical purpose" for the alleged error. (People v. Zapien (1993) 4 Cal.4th 929, 980.)
Here, it appears defense counsel may have had a tactical reason for not objecting to the notebook evidence. He elicited statements from the victim saying that she did not write in the journal because nothing happened and there was nothing to write down. He also cross-examined the cousin regarding the notebook. Under the circumstances, defendant's ineffective assistance claim fails.
III
Defendant claims the trial court erred in instructing the jury that fresh complaint evidence could be considered for the truth.
The trial court instructed the jury with CALCRIM No. 303 [limited purpose evidence] and CALCRIM No. 318 [prior statements as evidence]. Defendant argues that giving those two instructions without an additional limiting instruction allowed the jury to consider fresh complaint evidence for the truth of the matter asserted. He reasons that a jury could not have known from the instructions whether the cousin's testimony was admitted under the fresh complaint doctrine or under a hearsay exception and thus, if the jury accepted the truth of the cousin's statements (i.e. received them as admissible hearsay) he was denied a fair trial.
We have already rejected defendant's argument that the cousin's testimony constituted inadmissible hearsay. In addition, defendant does not deny that CALCRIM No. 303 was a correct instruction on the proper use of fresh complaint evidence or that CALCRIM No. 318 correctly instructed on the permissible use of hearsay evidence based on a witness's prior inconsistent statements. And he admits that his lawyer made no objection to these instructions and no offer of any limiting instructions. The trial court must give a limiting instruction on the fresh complaint doctrine if a defendant requests one, but the trial court has no sua sponte duty to do so. (People v. Manning (2008) 165 Cal.App.4th 870, 880.) Defendant's challenge lacks merit.
IV
Defendant further argues the trial court erred in admitting evidence of his prior sex crime conviction. He claims the trial court failed to weigh the prejudicial effect of his prior conviction against the probative value, pointing to the trial court's comment that the conviction "inevitably . . . comes in."
Evidence Code section 1108 allows the admission of propensity evidence in a sex offense case, subject to a weighing of the evidence under Evidence Code section 352, but it does not require that the court list the probity and prejudice factors or say that it has balanced them. (People v. Williams (1997) 16 Cal.4th 153, 213.) It is sufficient that the record demonstrates that the trial court understood and fulfilled its balancing responsibilities. (Ibid.)
The parties briefed and argued the prior offense issue before trial. And then during a discussion about the matter defense counsel expressly referenced Evidence Code section 352 and seemed to recognize the difficulty in overcoming admissibility under Evidence Code section 1108. Ultimately the trial court concluded the evidence would come in, noting that "it all has to be established. It has to be proved." The reference to Evidence Code section 352 indicates the trial court had such weighing in mind during the discussion.
As the trial court found, the evidence was relevant. Defendant explained the circumstances of the prior conviction at trial. And defense counsel did not object to the admission of defendant's prior conviction.
Defendant notes the prior conviction had been reduced to a misdemeanor and dismissed in March 2012, following a term of probation, and that the criminal conduct occurred years earlier. Nevertheless, the trial court did not abuse its discretion in admitting the evidence of defendant's prior conviction. And like before, defendant has not established that his trial counsel was deficient.
V
Defendant also claims the trial court incorrectly instructed the jury on the elements for failing to notify law enforcement of a change of address.
The trial court instructed the jury with CALCRIM No. 1170 [failure to register as a sex offender]. Defendant argues the instruction was incorrect in stating that he "willfully failed to register as a sex offender with the Shasta County Sheriff and/or the Redding police department" because section 290.013, subdivision (a) only required him to register with the law enforcement agency with which he last registered, in this case the sheriff's department, not the police department.
The prosecutor presented evidence that defendant never registered with the Redding Police Department. There was also evidence of defendant's registration history with the Shasta County Sheriff's Department. Defendant said he reported the mother's address in Redding to the sheriff's department once in January 2011. Later he registered as a transient in March 2011 because he did not want the mother to be evicted, even though he was staying overnight at her apartment.
There is no indication the jury was misled by the instruction. Defendant's theory was that there was a misunderstanding: he thought he was meeting the statutory requirements when he reported to the county sheriff and he did not believe he had to report to the city police, thus any violation was not willful. The instruction said the failure to register had to be willful and it defined that term. The challenge to the instruction fails.
VI
In addition, defendant notes the abstract of judgment must be corrected to reflect the orally imposed court operations assessment.
Section 1465.8, subdivision (a)(1) provides: "To assist in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense . . . ." The assessment is mandatory. (People v. Woods (2010) 191 Cal.App.4th 269, 271-272.) Citing the section, the trial court imposed a $160 assessment, $40 for each conviction. However, the abstract of judgment lists the assessment as a $130 court security fee pursuant to section 1465.8. The Attorney General agrees the abstract of judgment must be corrected.
We will direct the trial court to correct the abstract of judgment to reflect the orally imposed $160 court operations assessment. (See People v. Jones (2012) 54 Cal.4th 1, 89.)
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment to reflect the orally imposed $160 court operations assessment pursuant to section 1465.8, and to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
/S/_________
MAURO, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
ROBIE, J.