Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Rand S. Rubin, Judge, Los Angeles County Super. Ct. No. BA291594
Cannon & Harris and Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
INTRODUCTION
A jury convicted defendant Lawrence A. Martin of committing a lewd act upon a child under the age of 14 (§ 288, subd. (a)). In a bench trial, the court found that defendant had suffered a prior conviction within the meaning of the “Three Strikes” law. In sentencing defendant, the trial court selected the upper eight-year term which it then doubled, imposing a 16-year sentence.
Unless otherwise stated, all undesignated statutory references are to the Penal Code.
On appeal, defendant advances three separate contentions. The first is that the trial court abused its discretion in permitting the prosecution to offer evidence of a prior uncharged sex offense involving a minor. The second is that the prosecutor committed misconduct during closing argument. The third is that the trial court denied him the right to a jury trial in selecting the upper term for his sentence. We are unpersuaded by these contentions and therefore affirm the judgment.
STATEMENT OF FACTS
1. The Crime
Kayla T. testified that on October 1, 2005 (when she was six-years old), she and her nine-year old friend Candace went to defendant’s home. Other children, including friends of her brother, were playing there. When Kayla T. was in the living room, defendant called to her from his adjacent bedroom and told her “come here.” She entered his bedroom. Defendant was lying on the bed. As Kayla T. stood next to the bed, defendant put his hand into her pants and underneath her underwear and touched her vaginal area for approximately five seconds. Defendant told Kayla T.: “Don’t tell nobody.” Kayla T. and Candace left defendant’s residence. Kayla T. told her mother what had happened. Her mother contacted the police.
Candace did not testify at trial.
Los Angeles Police Officer Jose Chavez spoke with Kayla T. She told him that after she entered defendant’s bedroom, defendant sat next to her on the bed and placed his hand inside of her pants.
2. The Uncharged Offense
Over defense objection, 17-year old Latoya S. testified that in 1999, when she was 11 years old, she went to defendant’s home to help him with household chores. Defendant pushed her onto the bed and told her to undress. Latoya S. complied because defendant had threatened her. He touched her between the legs and forced her to orally copulate him.
The details of the pretrial ruling permitting this evidence will be set forth when we discuss defendant’s appellate contention of trial court error.
3. Defendant’s Testimony
Defendant testified at trial about both incidents.
In regard to the charged offense of committing lewd conduct upon Kayla T., he denied the crime entirely. He claimed that she had not even been in his home on October 1. He testified that while Candace (his girlfriend’s niece) and Kayla T. had been there on earlier occasions, it was solely to perform chores. According to him, on one occasion, Kayla T. had hurt her knee and had asked him to fix the cut. He never put his hands down her pants or had any inappropriate contact with her.
In regard to the 1999 incident with Latoya S., defendant admitted to the sexual conduct. He blamed his actions on substance abuse. He testified: “It was drug induced. I was on cocaine, rock cocaine. I been on different highs ever since Vietnam.” He pled guilty to the charge arising out of that incident and was sentenced to a three-year term which he served. He claimed that he had had no inappropriate contact with children since his 2001 release from prison.
DISCUSSION
A. ADMISSION OF PRIOR ACT OF CHILD MOLESTATION
Defendant first contends that the trial court’s ruling permitting evidence about his molestation of Latoya S. “was an abuse of discretion requiring reversal.” We disagree.
1. Factual and Procedural Background
Prior to trial, the prosecutor moved to introduce evidence of defendant’s molestation of Latoya S. After setting forth the specifics of the incident, the prosecutor noted the similarities between the two crimes (both victims lived in defendant’s neighborhood and were under 14) to argue that evidence about the Latoya S. offense would “show[] [defendant’s] predisposition and predilection to molest children.” Defense counsel sought to exclude the evidence under section Evidence Code 352. He argued that proof of the Latoya S. incident “would inflame the jury and there’s a strong possibility that they may convict him for his previous conduct in light of the evidence in this case being substantially weaker and a much or milder conduct than” that prior incident. The trial court ruled: “I’ve looked at [section] 1108, and I certainly think that the juries are very good in analyzing this type of evidence and what it’s offered for with limiting instructions. [¶] . . . I think under [section] 1108 it is certainly admissible. I would not keep it out under [section] 352, so it will be admissible.”
Latoya S’s testimony did not contain some of the details set forth in the prosecutor’s proffer.
In this portion of our discussion, all undesignated statutory references are to the Evidence Code.
During trial, Latoya S. testified as set forth in our prior summary of the trial evidence.
The pattern CALCRIM instruction, No. 1191 (“Evidence of Uncharged Sex Offense”), was submitted to the jury. The instruction explained, among other things, that the uncharged offense was “only one factor to consider along with all of the other evidence” in determining defendant’s guilt; that it was “not sufficient by itself to prove” guilt; and that the jury should consider it only “for the limited purpose of propensity to commit a lewd act upon a child.” In addition, CALCRIM No. 303 (“Limited Purpose Evidence in General”) was submitted.
2. Discussion
Section 1108, subdivision (a) provides, in pertinent part: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s 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 grants the trial court discretion to exclude evidence “if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice.” Section 1108 passes constitutional muster because the trial court has the discretion to exclude the evidence. (People v. Falsetta (1999) 21 Cal.4th 903.)
Defendant first claims that “[t]he trial court failed to engage in a careful weighing process” before rendering its decision. The record refutes that claim. The prosecutor carefully set forth his arguments supporting admission of the evidence; defense counsel, citing section 352, argued against its admission; and the trial court referred to section 352 in rendering its ruling. This record shows that the trial properly discharged its obligation.
Next, defendant advances several arguments to support his contention that the trial court’s ruling was an abuse of discretion.
He claims that the evidence of the Latoya S. incident was stronger than the “weak” and “uncorroborated” evidence offered about the crime involving Kayla T. We disagree. The prosecution’s evidence of each incident consisted solely of the victim’s testimony; the prosecution presented nothing to corroborate either child’s claim.
Although additional evidence was ultimately produced at trial about both molestations, it was adduced by the defense, not the prosecution.
Defendant next urges that the evidence involving Latoya S. was “more inflammatory and emotionally charged” than the evidence of the charged offense. He gives two reasons to support that conclusion. The first reason is that his conduct with Latoya S. was more aggravated than that involving Kayla T. because Latoya S. testified that defendant pushed her onto the bed, forced her to undress, and compelled her to orally copulate him. This distinction does not support defendant’s argument because section 1108 does not contain “‘exacting requirements of similarity between the charged offense and the defendant’s other offenses.’” (People v. Soto (1998) 64 Cal.App.4th 966, 984.) The second reason defendant proffers is that apparently Latoya S.’s in-court demeanor was more emotional than that of Kayla T.’s. In that regard, defendant notes that the prosecutor characterized differently each child’s courtroom presence. In closing argument, the prosecutor described Kayla T.’s testimony as “very straightforward, matter-of-fact” but stated Latoya S. had “tears in her eyes” when she testified. In addition, the prosecutor’s opposition to defendant’s new trial motion characterized Latoya S.’s testimony as “extremely emotional.” These circumstances fail to establish that the trial court abused its discretion when, prior to trial, it ruled that the prosecution could present Latoya S.’s testimony. In any event, the instruction that the jury should not be influenced by sympathy in making its decision (CALCRIM No. 200) as well as the limiting instructions (CALCRIM Nos. 303 and 1191) about its use of Latoya S.’s testimony more than sufficiently protected defendant from any potential prejudice.
Lastly, we reject defendant’s argument that “Latoya’s testimony and demeanor undoubtedly created a desire in the jurors to punish him for the offense against Latoya.” “[T]he prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jury’s attention would not be diverted by having to make a separate determination whether defendant committed the other offenses.” (People v. Falsetta, supra, 21 Cal.4th at p. 917.) Here, defendant testified that he served three years in state prison after he pled guilty to the crime arising out of his molestation of Latoya S. Hence, his argument that the jury “punished” him for molesting Latoya S. by convicting him of the offense involving Kayla T. is simply not persuasive.
B. PROSECUTORIAL MISCONDUCT
Defendant next contends that the prosecutor committed prejudicial misconduct during closing argument. He cites four separate examples. Before separately examining each one, we note that defendant advanced many of these same points in his new trial motion. The trial court denied the motion. After finding that most of the comments were not misconduct, the court explained: “[A]nd the remarks, I think, if inappropriate were harmless in light of what the jury considered to be overwhelming evidence.”
1. Reference to Kayla T.’s Preliminary Hearing Testimony
The prosecutor argued that Kayla T.’s testimony that defendant had committed a lewd act was credible for several reasons. After properly noting that she had spoken to Officer Chavez who wrote a report about the crime, the prosecutor stated: “On November 2005 she testified at a preliminary hearing where I was present, [Officer Chavez] was present, there was a judge, a court reporter. She was under oath. The defendant was present and there was defense counsel, and both attorneys asked her questions on the record. [¶] And then she testified in front of you again for a third time on the record under oath, and she’s consistent again and again and again. And the reason for that is she’s telling you the truth.” Defense counsel objected this argument was “outside the evidence. There’s no evidence of her testimony at the preliminary hearing in this case.” The court then told the jury: “This is only argument of counsel, ladies and gentlemen. This is certainly not the evidence. You know what the evidence is. I’ve told you many times what the attorneys say is not evidence.”
The jury had been instructed with CALCRIM No. 222 which explained, in relevant part: “Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence.”
Defendant correctly notes that no evidence about the victim’s preliminary hearing testimony was presented to the jury. That, however, is not the issue. The issue is whether the court’s admonition that counsel’s argument was not evidence cured any potential harm. It did. Given the brevity of the prosecutor’s comment, defense counsel’s quick objection, the clarity of the court’s admonition, and the presumption that the jury followed the admonition (see People v. Hughey (1987) 194 Cal.App.3d 1383, 1396, fn. 8), any potential prejudice was dissipated.
Further, we reject defendant’s suggestion, raised for the first time on appeal, that the prosecutor “clearly” committed misconduct after the court gave the admonishment set forth above when he stated: “[Officer] Chavez on direct was asked all of these questions. You can ask for the readback. He stated all of these answers.” Defendant’s failure to object below to these comments constitutes a forfeiture of any claim of misconduct. (People v. Fierro (1991) 1 Cal.4th 173, 207.) In any event, the prosecutor was doing nothing more than suggesting to the jury that it review Officer Chavez’s testimony.
2. Attack on Defendant’s Credibility
Defense counsel next objected during the prosecutor’s discussion of defendant’s credibility. The prosecutor suggested that defendant’s in-court admission of the prior molestation of Latoya S. was an attempt “to gain credibility” with the jury by “admitting something [he] did wrong.” The prosecutor then argued: “But what makes that interesting, there are no consequences for admitting that he committed that crime. He pled to it. He can’t be punished for it again, but he gains credibility. [¶] And then once he has that credibility with you, he denies the current crime, the only crime he’s liable for. And that’s the win-win defense, and there’s a crucial problem with that defense.” Defense counsel objected and, at sidebar, explained there was potentially a penal consequence because defendant had admitted a conviction alleged under the Three Strikes law. On that basis, defense counsel urged that the prosecutor’s argument was misleading. The trial court overruled the objection, finding it a fair argument based on the evidence presented to the jury.
The prosecutor’s argument was not misconduct. Credibility was the key issue for the jury to decide. Kayla T. testified to the lewd conduct but defendant’s testimony denied the accusation. To the extent that defendant attempted to embellish his credibility through his admission to the prior molestation of Latoya S., the prosecutor could properly argue that the jury should not attach significance to that admission because it came at no cost to defendant: he had already been convicted of and punished for that crime. (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 588, pp. 840-841 [“The prosecutor may argue any inference from the evidence”].) The fact that this prior conviction also qualified as a “strike” and thus potentially impacted his sentence does not change this conclusion. Defendant’s admission at trial did not resolve all of the issues raised by the Three Strikes allegation. The issue still had to be litigated, including holding the prosecution to its burden of proof that the conviction qualified as a “strike.”
The trial court had granted the defense pretrial motion to bifurcate trial of the prior conviction allegation so the jury was not aware of the allegation or the possibility that they could be required to determine it. Defendant subsequently waived his right to a jury trial on the prior conviction and the matter was tried to the court.
3. Argument About Pedophiles and Substance Abuse
In discussing the uncharged offense, the prosecutor noted that defendant expressed no remorse about his molestation of Latoya S. He then stated: “And you know why? And I’ll tell you why. Because he has no conscience. Because if you’re a pedophile and you selfishly use a child for sexual ends, you have no conscience. [¶] And he displayed that to you when he took the stand. He has no conscience whatsoever. These children are dixie cups to him, to be used by him and then thrown away. [¶] And the last thing I want to touch on, defense told you the defense was that, the cocaine made me do it, so I’m not really responsible for what happened to Latoya. [¶] Now, if I had to put money on it, I don’t think [the defendant has] ever smoked or used cocaine in his life. I think it’s just a back-door tactic to try to get an acquittal. [¶] But let’s say we believe him. Cocaine or drugs or alcohol do not cause people to do a sex crime.” Defense counsel made no objection to any portion of this argument.
Defendant now claims that there was no “evidence in the record to support the prosecutor’s assertion that pedophiles have no conscience or the prosecutor’s argument that it was likely [he] had never ‘smoked or used cocaine in his life.’ That argument plainly suggested to the jury that the prosecutor was in possession of information not before the jury in this trial, information the jurors could use to discredit [defendant’s] testimony.”
This portion of defendant’s contention of prosecutorial misconduct has not been preserved for review. “It is, of course, the general rule that a defendant cannot complain on appeal of misconduct by a prosecutor at trial unless in a timely fashion he made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.” (People v. Benson (1990) 52 Cal.3d 754, 794.) Quite apart from the fact that the prosecutor’s comment that pedophiles have no conscience was proper, any potential harm caused by the two comments could have been quickly cured through an admonition to the jury. Defendant’s failure to object and request an admonition constitutes a forfeiture of his claim. To avoid the force of that conclusion, defendant argues that his failure to object should be excused because “the trial court made it very clear that any objection would have been futile.” We disagree. Contrary to what defendant claims, the trial court did not overrule every objection. At two points, it responded to defense objections by reminding the jury that counsel’s argument was not evidence.
“It is well settled that a prosecutor is given wide latitude during argument. The scope of this latitude includes stating matters not in evidence, but which are common knowledge. [Citations.]” (People v. Dickey (2005) 35 Cal.4th 884, 915.) Given the widespread media coverage about sexual exploitation of children, it is fair to say that it is common knowledge that pedophiles have no conscience.
4. Purported Denigration of Defense Counsel
For the first time on appeal, defendant claims that the prosecutor’s argument “insinuated that the defense was fabricated merely to gain an acquittal for [defendant]” because (1) the prosecutor argued defendant had nothing to lose by admitting the molestation of Latoya S.; and (2) the prosecutor suggested his disbelief of defendant’s testimony that substance abuse was behind his molestation of Latoya S. Putting aside the fact that this claim proceeds upon a strained, if not unreasonable, interpretation of two brief remarks made by the prosecutor, it has not been preserved for review because no objection was made below. (People v. Clair (1992) 2 Cal.4th 629, 662.) No more need be said.
C. SENTENCING
Lastly, defendant contends that the trial court improperly imposed the upper term based upon facts that should have been but were not found by the jury. We disagree.
1. Factual Background
Defendant’s sentencing hearing was conducted in August 2006. The first issue addressed was the allegation that he suffered a prior conviction within the meaning of the Three Strikes law: a 2000 conviction for oral copulation with a child (Latoya S.) under 14 (§ 288a, subd. (c)(1)). A bench trial was conducted on the allegation. The prosecution entered into evidence a section 969b packet. The trial court found the allegation to be true.
The parties then turned to issue of defendant’s sentence. The prosecution sought imposition of the upper term on the section 288, subdivision (a) conviction. Defense counsel argued for the lower term. The trial court, over defendant’s Blakely objection, selected the eight-year upper term. It found the following facts in aggravation: the victim was particularly vulnerable; the manner in which defendant committed the crime indicated planning, sophistication or professionalism; defendant took advantage of a position of trust; defendant served a prior prison term; and defendant’s prior performance on probation was unsatisfactory. Pursuant to the Three Strikes law, the court doubled the eight-year term to impose a 16-year sentence.
Blakely v. Washington (2004) 542 U.S. 296.
2. Discussion
In Cunningham v. California (2007) 549 U.S. ___ (Cunningham), the United States Supreme Court held that our state’s determinate sentencing law violated a defendant’s federal constitutional right to a jury trial because the trial judge, not the jury, had the authority to make the factual findings that would subject a defendant to the possibility of the imposition of the upper term. In People v. Black (2007) 41 Cal.4th 799 (Black II), the California Supreme Court applied Cunningham’s holding to a defense challenge to a trial court’s decision to impose an upper term. In an analysis pertinent to this appeal, the court held: “Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Id. at p. 813.) The aggravating circumstance of a prior conviction is one to which the United States Supreme Court has consistently held there is no right to a jury trial. (Id. at p. 818 and cases cited therein.) Consequently, if the fact of a prior conviction has been properly established, there is no right to a jury trial on the existence of additional aggravating circumstances even though those findings can increase the likelihood that the trial court will impose the upper term. The rationale is that those latter findings “do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial factfinding on those additional aggravating circumstances is not unconstitutional.” (Id. at p. 815.)
In addition, Black II reaffirmed the principle that the “prior conviction” exception to a right to a jury trial is to be construed broadly. It explained that the exception, set forth in the United States Supreme Court’s holding in Almendarez-Torres v. United States (1998) 523 U.S. 224, “include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Black II, supra, 41 Cal.4th at p. 819.) Thus, Black II concluded that the aggravating circumstance that a defendant’s convictions are “numerous or of increasing seriousness” (Cal. Rules of Court, rule 4.421(b)(2)) was a matter that the trial court could properly determine in the first instance without running afoul of the federal constitution. (Id. at pp. 819-820, including fn. 9.)
In this case, the trial court relied upon two aggravating circumstances related to defendant’s prior criminal history to impose the upper term: (1) defendant had served a prior prison term (Cal. Rules of Court, rule 4.421(b)(3)); and (2) defendant’s prior performance on probation was unsatisfactory (Cal. Rules of Court, rule 4.421(b)(5)). Because the trial court could properly determine in the first instance the existence of these two circumstances, its decision to impose the upper term does not violate the federal constitutional right to a jury trial. (See People v. Black II, supra, 41 Cal.4th at pp. 819-820.) That the trial court also cited circumstances that should have been determined by the jury does not alter this conclusion. (Id. at p. 815.)
There is a potential ambiguity as to whether the trial court was referring to defendant’s unsatisfactory performance on probation or his unsatisfactory performance on parole. Regardless, either finding is supported by the evidence.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.
In regard to Kayla T., Officer Chavez’s testimony that his investigation report reflected that she had told him that defendant “sat next to her, sitting on the bed, and placed his hand inside her pants” was elicited by defense counsel during his cross-examination of the officer.
In regard to Latoya S., defendant elected to testify and admitted that prior molestation.
Neither of the above two points is relevant to determining whether the trial court abused its discretion in making its ruling prior to trial because it had no reason to anticipate either development.
The probation report (which cited defendant’s unsatisfactory performance on probation as an aggravating circumstance) indicated that defendant was placed on two-year summary probation in 1973 but was arrested and convicted of another offense the following year. Thereafter, he was again placed on a two-year probationary term only to be arrested and convicted of a crime in 1975. In the trial court, defendant did not challenge the probation report’s recitation of his criminal history.
The section 969b packet established that defendant was first paroled in June 2001 following service of a portion of his sentence on his 2000 conviction for oral copulation, but that eight days later he was arrested. Following a hearing, he was returned to state prison until he was again paroled. This record refutes defendant’s passing claim that there is “no indication that [his] performance on parole was unsatisfactory.”