Opinion
D039707.
7-16-2003
THE PEOPLE, Plaintiff and Respondent, v. IGNACIO LICON, Defendant and Appellant.
Ignacio Licon was convicted of a making a criminal threat, obstructing an executive officer and misdemeanor child molestation. It was found true Licon had suffered a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a)(1), and section 667, subdivisions (b) through (i). Licon was sentenced to a term of 12 years in prison. He appeals, arguing the trial court erred in admitting evidence of prior criminal acts and in instructing concerning those acts, the evidence was insufficient to convict him of child molestation, the trial court erred in failing to instruct concerning the weighing of conflicting evidence, the trial court erred in failing to suspend criminal proceedings pursuant to section 1368, and the trial court abused its discretion in allowing the prosecution to amend the information.
FACTS
A. Prosecution Case
On the evening of March 18, 2001, 11-year-old Julie M. rode her bicycle to her parents doughnut shop in El Centro. Appellant came out of a liquor store and approached Julie in the doughnut shops parking lot. He addressed her in Spanish, a language she did not understand. Julie attempted to avoid appellant but he blocked her path, grabbed her bicycle and backed her up against the wall of a building.
As Juan Garcia drove his taxi into the shops parking lot, he saw appellant holding Julies bike and blocking her. Garcia told appellant to let her go. As Garcia started to get out of the cab, appellant approached him in a menacing manner and grabbed his wrist. As Garcia got out, he again told appellant to let Julie go. Appellant asked: "What do you care? What is it to you?" Garcia stated he was a friend of Julies family. Appellant replied he wanted to go to the bus depot and wanted Garcia to take him. Appellant stated that first he "wanted to fuck this little girl."
Garcia told Julie to go into the doughnut shop, drove to another part of the parking lot and called the police. Appellant followed Julie into the shop where he bought coffee and doughnuts and went back outside. Within five to ten minutes police officers arrived and contacted appellant. Julie and Garcia were interviewed and appellant was placed under arrest.
Appellant was transported to the police station. As Officer Shannon Fox was reading him his rights, appellant told the officer to listen. Appellant told the officer to "let him sleep it off in the jail and he would leave [Foxs] children alone." Appellant stated he knew where the officer lived because a friend did the officers gardening. Appellant stated his friend told him that Foxs wife "was a pretty little blonde." Appellant threatened to kill the officers family when he was not at home.
Appellants stepsister Elizabeth V. testified that between 1975, when she was six or seven years old, and 1980 appellant raped and sexually assaulted her on a weekly or monthly baiss. Diana C., appellants stepdaughter, testified that from 1982 to 1986, when she was eight to 12 years old, appellant repeatedly sexually molested her.
B. Defense Case
Appellant testified he was not present at the doughnut shop at the time of the incident and that he did not threaten Officer Foxs family. In argument counsel stated appellant did not remember being present or making threats because he was intoxicated. Counsel argued Garcia overreacted to appellants actions. Appellant was not molesting Julie. Counsel argued that if appellant did threaten Officer Foxs family, he did so because he was intoxicated and lacked the specific intent to commit the crime.
DISCUSSION
A. Other Crimes Evidence
Appellant argues the trial court erred in admitting evidence, pursuant to Evidence Code section 1108, that he had committed two prior sexual offenses.
1. Background
The prosecution indicated before trial its intention to offer evidence pursuant to section 1108 of prior sexual offenses committed by appellant. Appellant objected pursuant to section 352, arguing the evidence was more prejudicial than probative.
At an in limine hearing the prosecution offered the testimony of Elizabeth V. and Diana C. Elizabeth V., 33 years of age at the time of the hearing, testified that beginning when she was seven or eight years old appellant, her stepbrother, on repeated occasions over a several-year period, took her to a bedroom in their house, removed her clothing and raped her. At trial Elizabeth V. testified the assaults ended when she was 12 years old.
Diana C., 26 years old at the time of the hearing, testified that between the ages of five and 12 appellant, her stepfather, on repeated occasions fondled and raped her.
The trial court concluded the evidence more probative than prejudicial and admitted it. Both witnesses briefly testified at trial and provided an unembellished account of appellants sexual assaults against them.
2. Law
In general, evidence of a criminal propensity is inadmissible. (§ 1101, subd. (a).) However, section 1108, subdivision (a), states: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."
Section 352 allows a court to exclude relevant evidence if it finds it substantially more prejudicial than probative. Concerning the interplay of sections 352 and 1108, our Supreme Court stated: "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 defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]" (People v. Falsetta (1999) 21 Cal.4th 903, 916-917, 986 P.2d 182.)
The trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. A trial courts exercise of its discretion under section 352 will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124, 885 P.2d 1.)
3. Discussion
Appellant was charged with molesting a child. (Pen. Code, § 647.6, subd. (a).) That offense requires proof that the defendants conduct was motivated by an unnatural or abnormal sexual interest in the victim. (People v. McFarland (2000) 78 Cal.App.4th 489, 494.) In a prosecution for that offense, therefore, evidence of a propensity to the commission of sexual offenses against children is, in light of section 1108, relevant.
In deciding whether the trial court abused its discretion in admitting propensity evidence over appellants section 352 objection, we review a series of factors. First, we ask whether the uncharged acts were more or less inflammatory than the charged conduct. (People v. Harris (1998) 60 Cal.App.4th 727, 736-737.) While it is, of course, difficult to evaluate such matters, and while sexual offenses against children always have a high potential for inflaming a jury, we do not believe the uncharged conduct in this case was significantly more inflammatory than the charged conduct. The uncharged conduct involved serious sexual offenses over extended periods of time and on repeated occasions. On the other hand, the victim of the charged offense was a stranger to appellant and his conduct was extremely disturbing. While no actual touching occurred, the evidence was that appellant intended to rape the child. We conclude the charged and uncharged acts equally distressing.
Next, we review the probability of confusion of issues inherent in the presentation of propensity evidence. In this regard courts have considered whether the defendant was convicted of the uncharged offenses. The concern is that if the defendant was not convicted of those offenses, the jurors may wish to punish the defendant in the case presently before them for that earlier conduct. Such desire confuses the jurys consideration of the charged offenses. (People v. Branch (2001) 91 Cal.App.4th 274, 284; People v. Harris, supra, 60 Cal.App.4th at pp. 738-739.)
In this case there was no testimony at trial concerning whether appellant was charged or convicted with regard to either of the claimed earlier sex offenses. Elizabeth V. did testify that it was not until three months before trial that she told the authorities about appellants sexual assaults on her.
With no knowledge that appellant had been charged with or convicted of the uncharged prior sexual offenses, there was at least some possibility the jury might wish to punish him for his sexual crimes against all three victims. Some confusion might, therefore, have been caused by introduction of the uncharged offenses. Still, it is certainly not the case that only prior charged offenses resulting in convictions are admissible under section 1108 or for that matter any section allowing the introduction of prior bad acts. Under the facts of this case we conclude that while a danger of confusion existed, it did not require exclusion of the offered other crimes evidence.
Next, we consider the remoteness of the uncharged offenses. Courts have reasoned that as the time between the charged and uncharged offenses grows longer, it is less likely the defendant has a propensity to commit the charged offense. Thus, as the uncharged offense becomes more remote, it becomes less probative and more prejudicial. (People v. Branch, supra, 91 Cal.App.4th at. pp. 284-285.)
Here, the crimes against Elizabeth V. ended approximately 21 years before trial and those against Diana C. approximately 14 years before. The offenses were remote. Nonetheless, there were multiple victims who were repeatedly assaulted over a lengthy period of time. A court could reasonably believe that the uncharged offenses in this case retained strong probative value.
While the matter is a close one, we cannot say the trial court abused its discretion in admitting the evidence of appellants prior sexual assaults.
B. CALJIC No. 2.50.01
Appellant argues the trial court erred in instructing the jury in the terms of the 1999 version of CALJIC No. 2.50.01.
The instruction noted evidence was introduced for the purpose of showing appellant engaged in an uncharged sexual offense on one or more occasions. The instruction defined the term sexual offense. The instruction then stated: "If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type sexual offense. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is now accused. [P] However, if you find by a preponderance of the evidence that the defendant committed prior sexual offenses, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the crime charged. The weight and significance of the evidence, if any, are for you to decide. You must not consider this evidence for any other purpose."
After briefing in this case was complete, the California Supreme Court held the instruction was constitutional and rejected the same claims defendant makes here. (People v. Reliford (2003) 29 Cal.4th 1007, 1016.) We are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal. Rptr. 321, 369 P.2d 937.)
C. Sufficiency of Evidence
Appellant argues there was insufficient evidence to support his conviction for the misdemeanor of annoying or molesting a child (Pen. Code, § 647.6). He notes the offense requires that the defendant engage in acts directed at a child under the age of 18 which would "unhesitatingly disturb or irritate a normal person if directed at that person" and are motivated by an "unnatural or abnormal sexual interest" in the child. (CALJIC No. 16.440.) Appellant argues the evidence was insufficient to find that his conduct directed at Julie would unhesitatingly have disturbed or irritated a normal person.
In this context to disturb or irritate means to irk, offend, disturb, vex, trouble. It means to interfere or meddle with or to inconvenience. An act need not actually irritate or disturb the victim. It is enough that viewed objectively the act would so affect a normal person. (People v. Lopez (1998) 19 Cal.4th 282, 289-290, 965 P.2d 713.) To satisfy the section the act need not be lewd or obscene. (People v. Thompson (1988) 206 Cal. App. 3d 459, 464-465, 253 Cal. Rptr. 564.)
Appellant accosted a young girl at night in a parking lot. Although she repeatedly tried to do so, appellant would not let her go past him. Appellants behavior continued until he was confronted by another man. An argument that a jury could not reasonably find that such conduct would unhesitatingly disturb or irritate a normal person borders on the frivolous. The evidence was sufficient.
D. CALJIC No. 2.22
Appellant argues the trial court erred in failing to instruct in the terms of CALJIC No. 2.22, "Weighing Conflicting Evidence."
CALJIC No. 2.22 conveys this earth shattering and apparently esoteric truth: "You are not required to decide any issue of fact in accordance with the testimony of a number of witnesses, which does not convince you, as against the testimony of a lesser number or other evidence, which you find more convincing. You may not disregard the testimony of the greater number of witnesses merely from caprice, whim or prejudice, or from a desire to favor one side against the other. You must not decide an issue by the simple process of counting the number of witnesses [who have testified on the opposing sides]. The final test is not in the [relative] number of witnesses, but in the convincing force of the evidence."
The instruction must be given sua sponte in cases in which conflicting evidence is presented. (People v. Snead (1993) 20 Cal.App.4th 1088, 1097.) While there may have been some conflicting evidence in this case and while there was no reason not to give the instruction, it expresses mere matters of common sense and intelligent appraisal. The failure to give the instruction was harmless. (Ibid; People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)
E. Failure to Suspend Proceedings
Appellant argues the trial court erred when it refused to suspend the criminal proceedings and conduct a hearing pursuant to section 1368 et seq. to determine if appellant was competent to stand trial.
1. Background
During the Peoples case in chief, defense counsel by written motion asked the trial court pursuant to section 1368 et seq. to suspend criminal proceedings and conduct a hearing to determine if appellant was competent to stand trial.
In a declaration attached to the motion, defense counsel stated he interviewed appellant on eight occasions. While he appeared intelligent, counsel concluded that as a result of prolonged alcohol abuse appellant suffered serious and incapacitating brain damage. Counsel explained appellant refused to provide needed information because appellant believed counsel would give it to the prosecutor. Counsel explained he would not turn over evidence but appellant still refused to supply the information.
Appellant did supply counsel with the names of possible witnesses and their expected testimony. When the prospective witnesses were interviewed, however, they did not support appellants account of events. When appellant was so informed, he stated that either the witnesses or the defense investigator were lying.
Counsel stated that shortly before trial, appellant informed him that in prior interviews he had revealed only a small portion of his story. The additional information related by appellant — which was not revealed in the declaration — was so bizarre that counsel doubted his capacity to stand trial. Counsel stated appellant appeared to be delusional. Counsel noted a recent incident in which appellant claimed to have heard the trial judge say appellant would be sorry he was the judge. The judge denied making the statement. Counsel concluded appellant sincerely believed the judge made the remark.
Counsel stated he wanted appellant examined by a psychologist. Appellant refused. Counsel also noted appellant caused several disturbances in court. Counsel concluded appellant was unable to assist in his defense in a rational manner and asked the criminal proceedings be suspended and a hearing held to determine appellants competence to stand trial.
Also attached to the motion to suspend criminal proceedings was a declaration from the defense investigator. The investigator stated he had several contacts with appellant. At an interview the day before the filing of the motion, appellant related a version of events to defense counsel and the investigator that was very bizarre. The investigator stated that in his lay opinion appellant had mental problems and was delusional. He concluded it was impossible to effectively work with appellant in preparing a defense.
At a hearing on the motion, defense counsel stated his conclusion that appellant could not rationally cooperate in his defense. Counsel stated appellant wished to testify but the story he would tell was so bizarre that his own testimony would convict him. Counsel stated appellant wanted to offer a defense of alibi when four witnesses placed him at the scene. Counsel believed appellant sincerely believed he was not at the scene.
The trial court noted the issue was whether there was substantial evidence appellant was unable to cooperate in his defense. The court noted appellant had four different attorneys in the case and had brought a motion to disqualify the trial judge. The court stated appellant was manipulative and questioned whether the proceedings should be suspended based merely on appellant telling counsel a bizarre story shortly before trial. The court stated it would deny the motion but would revisit the issue if necessary.
A further hearing on the matter was held the next day. Defense counsel sought an in camera hearing to relate to the court appellants bizarre account of events. The court stated it was concerned when a defendant it believed was attempting to sabotage the proceeding started to make bizarre comments. Counsel stated appellant would testify and claim he was not at the scene. The court stated that was not an unusual defense. The court again refused to suspend the proceedings.
Appellant testified and denied any sexual assault on his stepdaughter Diana C. He stated he could not rape her because medication he was taking left him impotent. After a time his relationship with Diana C. became strained. Appellant also denied molesting his stepsister Elizabeth V. Appellant again stated that because of medication he was taking at the time, he was unable to achieve an erection.
Appellant testified in detail about the day of the charged crimes and stated he was not in the area of the doughnut shop the night Julie was molested. He also denied threatening Officer Foxs family.
During appellants denial of involvement in the charged offenses, defense counsel made an offer of proof that appellant would testify that a police conspiracy existed to falsely accuse him of sex crimes against children and to create false testimony to support the charge. Appellant would testify that a month before his arrest he overheard officers he could not identify planning to falsely accuse him. The trial court excluded the proposed testimony as hearsay.
During jury deliberations defense counsel again requested criminal proceedings be suspended. He stated he talked with a psychologist about appellant. While the doctor had not done a complete examination of appellant and could not testify definitively concerning his condition, he believed there was a strong possibility appellant suffered from brain damage and was delusional. The prosecutor retorted that counsels observations added nothing to the issue. She argued defense counsels request that the proceeding be suspended was still based on mere speculation and not substantive evidence. The trial court agreed and denied the request.
2. Law
"A person cannot be tried or adjudged to punishment while mentally incompetent. [Citation.] A defendant is mentally incompetent if, as a result of a mental disorder or developmental disability, he or she is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. [Citation.] When the accused presents substantial evidence of incompetence, due process requires that the trial court conduct a full competency hearing. [Citations.] "Evidence is substantial if it raises a reasonable doubt about the defendants competence to stand trial." [Citations.] [Citation.] [P] When there exists substantial evidence of the accuseds incompetency, a trial court must declare a doubt and hold a hearing pursuant to section 1368 even absent a request by either party." (People v. Koontz (2002) 27 Cal.4th 1041, 1063-1064.)
That a trial court has no personal doubt concerning the defendants sanity is irrelevant. If substantial evidence of incompetence exists, a section 1368 hearing must be held. (People v. Pennington (1967) 66 Cal.2d 508, 518-519, 58 Cal. Rptr. 374, 426 P.2d 942; People v. Castro (2000) 78 Cal.App.4th 1402, 1415.)
In determining whether substantial evidence of incompetence exists, a court must consider all the relevant circumstances, including the opinion of defense counsel. Given the complexity of the issue and the variability of human behavior, no simple formula exists for determining the question. Sufficient present ability to cooperate with counsel and to assist rationally in preparing a defense requires more than being oriented in time and place and more than a mere ability to recollect events. However, mere bizarre statements or actions are generally insufficient to constitute substantial evidence of incompetence. (People v. Castro, supra, 78 Cal.App.4th at p. 1415.) It is often difficult to determine whether a defendant is truly incompetent or merely malingering. In part this is so since a defendant may easily feign incapacity by making bizarre statements or bizarrely refusing to cooperate. (People v. Laudermilk (1967) 67 Cal.2d 272, 287, 61 Cal. Rptr. 644, 431 P.2d 228.)
"The trial judges ruling regarding whether a competency hearing is required should be given great deference. An appellate court is in no position to appraise a defendants conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper. [Citations.]" (People v. Danielson (1992) 3 Cal.4th 691, 727, 838 P.2d 729; see also People v. Lawley (2002) 27 Cal.4th 102, 139.)
3. Discussion
There is no doubt appellant was a difficult client. We agree with the trial court, however, that the defense failed to present substantial evidence that he was, as a result of a mental disorder or developmental disability, unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. It is not unusual for a competent defendant and his or her attorney to differ concerning the defense to be presented. It is not unusual for a competent defendant to balk at the presentation of a mental defense even in the face of strong evidence that he or she committed the charged acts. Nor is it unusual for a competent client in a criminal case to distrust his lawyer and for communication difficulties to arise.
Defense counsel and his investigator concluded appellants insistence on a defense that seemed so insubstantial as to appear bizarre was the result of brain damage caused by the abuse of alcohol. Counsel presented no expert opinion to support this lay conclusion. The trial court, which actually interacted with appellant and viewed him on a daily basis, had a different opinion. He believed appellant was manipulative and bent on delaying and disrupting the proceedings. We are charged with giving great deference to that conclusion. Willful lack of cooperation and the insistence on the presentation of a defense found wanting by counsel may ultimately be self— destructive but it is not substantial evidence of incompetence.
F. Amendment of the Information
During jury deliberation on the charged offenses, the trial court granted the prosecutions motion to amend the information with an allegation of a prior conviction. Appellant argues this was error.
1. Background
As originally filed the information alleged substantive offenses but did not allege any recidivist enhancements. During jury deliberations the prosecutor sought leave to amend the information to include the allegation that in 1994 appellant was convicted of making a criminal threat (Pen. Code, § 422), a prior conviction within the meaning of Penal Code section 667, subdivision (a)(1), and a "strike" offense within the meaning of Penal Code section 667, subdivisions (b) through (i). The prosecutor noted that while she had been aware of appellants prior conviction for making a criminal threat, she had just discovered that the conviction was a strike and was seeking amendment of the information at her first opportunity.
At a hearing on the motion, defense counsel first complained that he had less than a day and half to research the issue and stated he was not adequately prepared. Counsel then noted that he and appellant had had a difference of opinion concerning the defense to be presented. Counsel wanted appellant examined by a psychologist as the basis for a mental defense. Appellant refused to be examined. Given what seemed the relatively minor nature of the offenses charged and the relative short prison term involved, counsel did not press the issue. Had he known a prior strike could be alleged and appellants term doubled, he would have pushed harder to convince appellant to be examined by the doctor. While the matter was being argued, the court was informed the jury had reached a verdict.
The trial court granted the motion to amend. Before the verdicts were taken, appellant was arraigned on the amended information and denied he had suffered the prior conviction. The verdicts were then taken on the substantive offenses. A trial was had on the prior conviction allegations before the same jury. The jury found the allegations true. Appellant was sentenced to prison for the upper term of three years on count one. That term was doubled based on the strike finding. He was sentenced to a consecutive term of one year on count three. Five additional years were added to the term based on the Penal Code section 667.5 , subdivision (a)(1), finding.
2. Discussion
Penal Code section 969a states that when it is discovered that an information fails to allege all of the defendants prior felony convictions, the information may, upon order of the court, be amended to charge them. Such amendment may be made at anytime before the jury is discharged. (People v. Tindall (2000) 24 Cal.4th 767, 769— 770.) In deciding whether to allow amendment, the trial court should consider, among any other relevant factors, the reason for the late amendment, whether the amendment is a surprise to the defendant, whether the initial failure to charge the prior affected the defendants decisions during plea bargaining, and whether other felony convictions were charged originally. (People v. Valladoli (1996) 13 Cal.4th 590, 607-608, 918 P.2d 999.) Our Supreme Court has made clear such decisions are best left to the trial court. (Ibid.)
Ultimately, granting or denying an amendment pursuant to Penal Code section 969a requires the trial court act with due regard for the administration of justice and fairness to the defendant. Here, the prosecutor readily conceded she was aware of appellants prior Penal Code section 422 conviction from the beginning of the case. She was unaware, however, that it could be charged as an enhancement under Penal Code sections 667, subdivision (a)(1), or 667, subdivisions (b) through (i). While such ignorance is not to be condoned, neither should it alone prevent amendment of the information.
The important question is whether appellant was prejudiced by the late amendment of the information. Prejudice in this context, of course, does not consider the greater sentence appellant received based on the amendment. The sentence appellant received was the one specified by the law. The issue is whether the defense proceeded in any fashion to its detriment based on the failure of the prosecution to include in the original information allegation of the recidivist enhancements.
The omission could not have affected appellants plea bargaining decisions since there was no plea bargaining in this case. Nor does it appear the defense would have proceeded differently in trying the case had the enhancements been included in the original information. Counsel argued below that had he known this was a strike case he would have tried harder to convince appellant to be examined by a psychologist and accept a mental defense. We find this hard to accept. Appellant was facing a prison term for serious crimes based on the original information. There was sufficient reason for counsel to use his strongest arguments in convincing appellant to accept a mental defense even without knowledge of the enhancing allegations. In any event, given appellants obstinate nature, there is no reason to believe he would have accepted counsels suggestion.
The trial court did not abuse its discretion in allowing amendment of the information.
The judgment is affirmed.
WE CONCUR: McCONNELL, J., and AARON, J. --------------- Notes: All further statutory references are to the unless otherwise specified.