Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County Super. Ct. No. VCF189165. Paul A. Vortmann, Judge.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
A jury convicted appellant Frank Mason, Jr., of violating Penal Code section 288, subdivision (a), lewd acts on a minor under the age of 14, and section 288.3, subdivision (a), communicating with a minor with intent to commit a sexual offense. Mason contends the trial court erred in admitting evidence of prior uncharged sexual acts pursuant to Evidence Code section 1108. He also contends the Penal Code section 288.3 conviction must be stricken because it is a lesser included offense of the section 288 offenses. We will affirm the convictions, but remand for resentencing because the trial court imposed an unauthorized sentence.
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
On July 19, 2007, then nine-year-old B.P. was excited because she had just received a new Play Station Portable (PSP) game console. After showing her mother how the PSP worked, B.P. went upstairs to show her grandfather, Mason, her new PSP.
As she was showing him how it worked, Mason hugged her and grabbed her face with his hands and kissed her on the lips. Mason had never kissed her on the lips. Mason then began rubbing B.P. “between her legs” over her clothing and said, “I can touch that.” B.P. was unfamiliar with the word “vagina” and indicated that Mason rubbed her “where you pee from.” Mason told B.P. to tell her mother that they were going to play cards the next day, although that really was not what they were going to do. B.P. backed away from Mason and went downstairs to her mother.
B.P. ran downstairs and threw her PSP console on the kitchen counter. She began crying and stated that she was never going upstairs again. B.P.’s mother took her into a bedroom to talk to her. B.P. was crying so hard she could hardly talk. B.P. told her mother that Mason had kissed her on the lips and had put his hand between her legs.
B.P.’s father came home from work and found his wife and B.P. in the bedroom crying. They told him why they were crying and discussed what to do, eventually deciding to go to the police station and report what had happened.
Visalia Police Officer Ramona Casey interviewed B.P. and her parents at the police station. After taking their statements, Casey went to the home to interview Mason. Casey noted that Mason was not surprised to see her or surprised by B.P.’s allegations. Mason, however, denied that there had been any physical contact between B.P. and him.
When Casey asked Mason if he knew of any reason why B.P. would lie about the allegations, Mason initially indicated he did not. Mason then claimed B.P. might have been upset with him because the night before two teenage cousins had asked him if they could go downstairs and play with B.P. at 2:00 a.m. and he told them no. When asked why the cousins would make such a request, Mason got “flustered and just started stuttering and said maybe that’s not what [B.P.] was upset about.”
Mason was charged with two counts of violating section 288, subdivision (a) and one count of violating section 288.3, subdivision (a).
On February 14, 2008, Mason moved to exclude evidence of prior uncharged sex acts between himself and S.S., S.A., and B.A. The motion was heard on March 3, 2008. The trial court applied an Evidence Code section 352 analysis. The People decided to present only the testimony of S.S. As to that testimony, the trial court concluded that the probative value outweighed any potential prejudice and denied Mason’s motion. The trial court also indicated that if Mason so requested, additional jury instructions on the issue of evidence of uncharged prior acts would be given.
During the trial, one of B.P.’s teenage cousins testified that he had never asked Mason if he could go downstairs to visit B.P. at 2:00 a.m.
S.S. testified that Mason was her stepfather and that she had lived with him as a child. She testified that Mason had touched her vagina under her clothes two or three times when she lived with him 30 years earlier.
Mason testified that he never touched B.P. or S.S. in an inappropriate manner.
On March 6, 2008, the jury found Mason guilty as charged. The trial court sentenced Mason to the midterm of six years for count 1 (§ 288, subd. (a)) and a concurrent term of six years on count 2 (§ 288, subd. (a)). The trial court declined to impose any term for the count 3 conviction (§ 288.3, subd. (a)).
DISCUSSION
Mason raises two contentions on appeal. First, he contends the trial court erred by admitting testimony from S.S. because the evidence did not withstand an Evidence Code section 352 analysis and admission of the evidence deprived him of due process. Second, Mason also claims his Penal Code section 288.3 conviction must be reversed because it is a necessarily included offense of section 288, subdivision (a). The People correctly contend that the trial court imposed an unauthorized sentence when it failed to impose any term for the section 288.3 conviction.
I. Admission of Prior Uncharged Acts Evidence
Mason contends the trial court erred in admitting evidence of prior uncharged sexual offenses because admission of the evidence undermined his due process right to a fair trial. We disagree.
Due Process and Fair Trial
Evidence of prior criminal acts generally is inadmissible to show a defendant’s disposition to commit such acts (Evid. Code, § 1101), but the Legislature has created exceptions for prosecutions of sexual offenses (id., § 1108) and domestic violence (id., § 1109). The California Supreme Court has held that Evidence Code section 1108 conforms to the requirements of due process. (People v. Falsetta (1999) 21 Cal.4th 903, 915.) By parity of reasoning, Evidence Code section 1109 recently has withstood like constitutional challenges. (People v. Reyes (2008) 160 Cal.App.4th 246, 251.) Hence, the trial court’s admission of evidence of Mason’s commission of other uncharged sexual offenses was not a violation of due process.
To the extent Mason is contending admission of the challenged evidence lightened the People’s burden of proof or permitted the jury to draw impermissible inferences from the evidence, we reject his contention. In People v. Reliford (2003) 29 Cal.4th 1007, 1009 (Reliford), the Supreme Court held that the 1999 version of CALJIC No. 2.50.01, which addressed Evidence Code section 1108 evidence, correctly stated the law. The Supreme Court held it was not reasonably likely that a jury could interpret the instruction to authorize conviction of the charged offenses based on a lowered standard of proof. The court noted that nothing in the instructions authorized the jury to use the preponderance of the evidence standard for anything other than the preliminary determination whether the defendant committed a prior sexual offense. The instructions explained that in all other respects the People had the burden of proving the defendant guilty “‘beyond a reasonable doubt.’ [Citations.]” (Reliford, at p. 1016.)
The Supreme Court also gave tacit approval to the 2002 revision of CALJIC No. 2.50.01, stating:
“The 2002 revision … deletes the sentence, ‘The weight and significance of the evidence, if any, are for you to decide’ and inserts an additional cautionary statement: ‘If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime.’ … [W]e think the new sentence is an improvement. It provides additional guidance on the permissible use of the other-acts evidence and reminds the jury of the standard of proof for a conviction of the charged offenses.” (Reliford, supra, 29 Cal.4th at p. 1016.)
Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No. 1191, given in this case, is comparable to the 1999 version of CALJIC No. 2.50.01 and includes the additional language of the 2002 revision of CALJIC No. 2.50.01 that the Supreme Court characterized as “an improvement.” In addition, CALCRIM No. 1191, as given, was even more restrictive than its CALJIC predecessors because it expressly advised the jury that evidence of another sexual offense “is not sufficient by itself to prove that the defendant is guilty.… The People must still prove each element of every charge beyond a reasonable doubt.”
Evidence Code Section 352 Analysis
Evidence Code section 1108 was intended to sweep away the narrow categories of admissibility of other crimes evidence that had existed under Evidence Code section 1101. (People v. Britt (2002) 104 Cal.App.4th 500, 505.) Instead, such evidence is admissible whenever it may be helpful to the trier of fact, on a commonsense basis, for resolution of any issue in the case, including the probability or improbability that the defendant has been falsely accused. (See Britt, at p. 506.) A trial court retains the discretion, however, to admit or exclude evidence of another sexual offense under Evidence Code section 352. (People v. Rodriguez (1999) 20 Cal.4th 1, 9; People v. Callahan (1999) 74 Cal.App.4th 356, 367-368.) A trial court’s exercise of its discretion under Evidence Code section 352 is reviewed for abuse of discretion and will not be disturbed on appeal absent a showing that the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner. (Rodriguez, at pp. 9-10.)
In People v. Harris (1998) 60 Cal.App.4th 727, the court set out five factors for evaluating the admissibility of prior offense evidence: (1) the inflammatory nature of the evidence; (2) the probability of confusion; (3) the remoteness in time of the prior incidents; (4) the consumption of time involved; and (5) the probative value of the prior offense evidence. (Id. at pp. 737-741.) In the instant case, these factors weighed in favor of admission of the evidence.
Mason argues the evidence should have been excluded because it was too remote in time. No specific time limit is set forth in the statute and appellate courts have upheld admission of evidence of uncharged offenses that occurred 30 years ago. (People v. Branch (2001) 91 Cal.App.4th 274, 285.) It is but one factor to be considered by the trial court.
Furthermore, the uncharged and charged offenses were substantially similar. Both victims were young girls, were family members, and were living in the same house as Mason at the time of the offenses. The offenses involved touching the vagina, and S.S.’s testimony did not consume an undue amount of time. The uncharged offense against S.S. was more inflammatory than the charged offenses against B.P., but not greatly so. S.S. claimed the touching occurred under her clothes and B.P. testified the touching was on top of her clothes.
A trial court should not exclude highly probative evidence unless the undue prejudice is unusually great. “‘Undue prejudice’ refers not to evidence that proves guilt.” Rather, it refers to evidence that “prompts an emotional reaction against the defendant and tends to cause the trier of fact to decide the case on an improper basis: ‘The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.’” (People v. Walker (2006) 139 Cal.App.4th 782, 806.) All evidence tending to prove guilt is prejudicial or damaging to the defendant’s case. “The stronger the evidence, the more it is ‘prejudicial.’” (Ibid.)
Conclusion
Under Evidence Code section 352, “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. [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) A reviewing court will not disturb a trial court’s exercise of discretion under Evidence Code section 352 unless it is shown the trial court exercised its discretion “‘“in an arbitrary, capricious or patently absurd manner.”’ [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 948.)
There is no indication here that the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner and reversal for alleged evidentiary error is not warranted. We conclude the trial court did not abuse its discretion in admitting the Evidence Code section 1108 evidence and the admission of this evidence did not deprive the defendant of due process or a fair trial.
II. Section 288.3 Not Lesser Included Offense of Section 288
Two tests are used for determining whether an offense is a lesser included offense—the elements test and the accusatory pleading test. (People v. Lopez (1998) 19 Cal.4th 282, 288 (Lopez).) Mason contends that his section 288.3 conviction is a lesser included offense of his section 288, subdivision (a) conviction under the elements test. Under the elements test, which we use here, if the greater offense cannot be committed without necessarily satisfying all the elements of the lesser offense, the latter is a necessarily included offense. (Lopez, at p. 288.)
Section 288, subdivision (a) states that any person “who willfully and lewdly commits any lewd or lascivious act, … upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child” is guilty of a felony. This section is violated by any touching of the child if it is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the child. (Lopez, supra, 19 Cal.4th at p. 289.)
Section 288.3, subdivision (a) provides that any “person who contacts or communicates with a minor, or attempts to contact or communicate with a minor, who knows or reasonably should know that the person is a minor, with the intent to commit an offense specified in Section [288] … shall be punished by imprisonment in the state prison for the term prescribed for an attempt to commit the intended offense.” Section 288.3 was added to the Penal Code by initiative on November 7, 2006. This code section criminalizes contacts or communications with a minor made with the intent to commit various sex offenses. (See Prop. 83, § 6, approved Nov. 7, 2006, eff. Nov. 8, 2006.)
Section 288.3, subdivision (b) defines the phrase “‘contacts or communicates with’” to include direct or indirect contact or communication achieved personally, through an agent, print medium, postal service, common carrier, electronic communication system, wire, telecommunications, computer, or radio communication device. The common meaning of “communicate” is to impart or share; to make known; to give or exchange information, signals, or messages in any way, as by talk, gestures, or writings. (Webster’s New World Dict. (3d college ed. 1988) p. 282.) The term “contact” is variously defined as to get in touch or communicate with; the state or fact of being in touch; and to touch or seize. (Websters, New World Dict., supra, p. 300.)
Nothing in the definition of “‘contacts or communicates with,’” as set forth in section 288.3, subdivision (b) requires a physical touching of the child to constitute a violation of section 288.3. Multiple forms of communication, such as talking, telephoning, texting, e-mailing, or writing, which involve no physical touching of the child whatsoever, can constitute a violation of section 288.3, subdivision (a).
On the other hand, section 288, subdivision (a) requires a physical touching. (Lopez, supra, 19 Cal.4th at p. 289.) Moreover, there is nothing in section 288, subdivision (a) that requires the touching be accompanied by or preceded by contacts or communications prohibited by section 288.3.
The instructions that define each of these two offenses reflect the distinction between these offenses. CALCRIM No. 1110 instructs the jury that in order to find a defendant guilty of violating section 288, subdivision (a), it must find the “defendant willfully touched any part of a child’s body either on the bare skin or through the clothing.” To find a violation of section 288.3, the jury here was instructed it had to find the “defendant communicated with or contacted the minor.” Nothing in the section 288.3 instruction informs the jury that there must be a touching. Likewise, nothing in CALCRIM No. 1110 instructs the jury that the defendant must have engaged in some form of communication or other contact with the victim.
Applying the elements test, we conclude that a defendant may violate section 288, subdivision (a) without violating section 288.3. Therefore, we hold that section 288.3 is not a lesser included offense of section 288, subdivision (a).
III. Unauthorized Sentence
Both parties contend Mason received an unauthorized sentence for the section 288.3, subdivision (a) conviction. Mason claims so because the section 288.3 conviction should have been dismissed. We rejected this argument in part II., ante. The People argue that Mason received an unauthorized sentence because the trial court failed to impose one.
At sentencing, the trial court declined to impose any sentence whatsoever for the section 288.3, subdivision (a) conviction, stating, “the Court is not going to impose any term.” The abstract of judgment, however, reflects that the trial court imposed the midterm and stayed imposition of punishment pursuant to section 654.
The People correctly note that the trial court’s oral pronouncement controls over the abstract of judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471.) Section 12 requires a trial court to impose punishment for all convictions, unless some other provision precludes imposition. (People v. Lara (1984) 155 Cal.App.3d 570, 574.)
Under these circumstances, a remand for the purposes of resentencing will allow the trial court to clarify its sentence. Because we will remand for resentencing, we decline to address the People’s contention that section 654 does not apply to stay imposition of punishment for the section 288.3 conviction. The People and Mason can present their arguments on whether section 654 is applicable to the trial court at resentencing.
DISPOSITION
The convictions are affirmed. The matter is remanded for resentencing.
WE CONCUR: LEVY, Acting P.J., DAWSON, J.