Opinion
E065790
06-27-2018
THE PEOPLE, Plaintiff and Respondent, v. ORION MILUM, Defendant and Appellant.
Paul Stubb, Jr., for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Andrew Mestman and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1303559) OPINION APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge. Affirmed. Paul Stubb, Jr., for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Andrew Mestman and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
Orion Milum appeals his conviction and sentence on three counts of molesting his niece in 2004, when she was five years old. He contends his trial was tainted by the introduction of testimony that he molested his half sister in the early 1990s, an unadjudicated sexual offense that occurred before he turned 14. He correctly argues minors under 14 are presumed incapable of committing criminal acts, and clear Supreme Court precedent holds it is improper to allow evidence of a minor's unadjudicated prior sexual offenses without evidence showing the minor appreciated the wrongfulness of the act. (People v. Cottone (2013) 57 Cal.4th 269, 280 (Cottone).) Milum says his conviction must be overturned because there was no such evidence and because his trial counsel was deficient in failing to object to the evidence on that basis.
We agree with Milum's argument up to a point. However, on direct appeal, we, like Milum, are limited to the record produced at trial. On that record, we conclude Milum has not shown he suffered prejudice from the error. We therefore affirm the conviction. However, Milum filed a petition for writ of habeas corpus, and the habeas record contains additional information and additional grounds for overturning the verdict which—though we may not take them into account in resolving the appeal—convince us the habeas petition should be developed in the trial court. We will therefore issue a separate order to show cause in the trial court.
Milum also challenges his sentence on two grounds. He argues the trial court abused its discretion by failing to strike the finding he had a prior serious and violent felony. He also argues his sentence is cruel and unusual because it effectively exceeds his natural life. We find no errors in his sentencing and therefore affirm.
I
FACTUAL BACKGROUND
A. Overview
This case arises from events in 2004, when then five-year-old Jane Doe was living in an apartment with her grandmother in Riverside. The apartment was small, consisting of a single-room living room and kitchen in front and a bedroom and bathroom in back. Doe said a man identified as either grandmother's husband or boyfriend lived with them. Milum said he and his brother lived in the apartment too. He said he lived there for about six months, beginning when he was released from prison in June 2004. Doe said her uncle Milum visited the apartment, but didn't live there.
Five years later, Doe told a friend she had been abused. Three years after that, she told a school counselor about the abuse in writing, which led to her telling law enforcement. The Riverside County District Attorney charged Milum with kidnapping with intent to commit oral copulation (Pen. Code, § 209, subd. (b), count 1, unless otherwise noted unlabeled statutory citations refer to this code), aggravated sexual assault of a child (§ 269, subd. (a)(4), count 2), and committing a lewd act upon a child under the age of 14 (§ 288, subd. (b), count 3). Prosecutors also alleged Milum had a prior serious and violent felony conviction.
Finally, 11 years after the alleged offense, she told her story to a jury. We recount Doe's testimony about the abuse below as well as Milum's testimony denying her accusations. No one else witnessed the abuse and, because of the passage of time, there is no physical evidence. We also recount the evidence about Doe's prior statements and Milum's conduct after he learned of the accusations.
Doe's mother, who is Milum's half sister, also testified. Mother has spent substantial time in prison, and Doe said she never really lived with her. However, when mother heard about the accusations, she let it be known Milum had coerced her into sexual relations when they were both under 14. The trial court allowed that testimony as evidence of Milum's propensity for sexual misconduct under Evidence Code section 1108, a ruling Milum identifies as prejudicial error. We recount mother's testimony as well.
B. Doe's Testimony About the Abuse
Doe testified at trial when she was 16 years old and had just finished her sophomore year in high school. She said when she was five years old she had a good relationship with her uncle Milum. She looked up to him, trusted him, and felt safe with him.
That changed one night when they were alone in her grandmother's apartment. Doe said she was asleep on the couch in the living room. She woke up, got off the couch, and found her uncle in the kitchen, across the room. He was naked and masturbating. She asked where her grandmother was, and he responded she had gone out with her boyfriend. Doe said she didn't really understand what was happening. "I knew it wasn't okay, but I was confused. I mean, I was—I didn't understand the whole idea of the whole touching. I mean, like it just looked odd to me. It didn't look right."
Doe returned to the couch and tried to go back to sleep, but Milum didn't let her. "He comes up to me with—this is hard for me to say. He had his like groin area like in like my facial like distance. And he asked me to do something and I said no and I turned the other way." She said he had asked her to "[k]iss it goodnight." "I was confused. I honestly didn't know how to respond to it besides no. And like my grandma always told me, private parts stay to yourself." He didn't relent, however. "He lifts the covers up and he told me to kiss it goodnight again." When she again said no, "He picks me up and he takes me away from the couch and takes me to the other room. And from then on it progressed."
Doe said Milum took her to the bedroom, where he took off all her clothes and began touching her. "There's a lot of touching and as I said before sexual movements. . . . [¶] Like, like there was grabbing and just touching in areas like my upper chest and my like groin area." She said he rubbed her chest and vagina. He kissed her chest, stomach, and inner thigh, and cunnilingued her and rubbed his penis on her vagina without penetration. Milum again asked her to fellate him, and when she refused, he resumed cunnilinguing her and rubbing his penis on her until ejaculation. Doe said she "was scared the entire time. I was terrified."
The abuse ended when Milum and Doe thought they heard someone at the apartment door. Doe said Milum put her clothes back on, picked her up, carried her to the living room, and threw her back on the couch. He then ran into the bathroom to hide his nakedness. Doe said she hid under the blanket, started crying, and went back to sleep. "I was embarrassed. I didn't know what just happened. I was just trying to figure it out. I wanted my grandma to think that I was asleep and nothing happened." It was a false alarm. No one had come home, but the abuse stopped. She saw her grandmother the next morning, but she didn't tell her or anyone else what had happened.
C. Doe's Prior Statements
Doe first reported the abuse five years later to her best friend, R.C. She said she was prompted to tell because Milum had started coming around again. "I told her because around that time he started coming over to the house and saying hi and trying to talk to the family. And I remember being scared of him and [R.C.] would ask like why are you scared of your uncle and I explained to her what happened." She said she felt comfortable talking to R.C., but did not go into the details of the abuse.
R.C. testified at trial. She said Doe said her uncle had touched her, but did not say which uncle. She described Doe as being very serious when she told her about the abuse. "Her facial expression, you know, it was very serious, you know, especially for fourth graders. It just wasn't right. Her facial expression was very serious" and her voice "was quivering. You know, she was going to cry almost." R.C. said she never told anyone what Doe had told her because Doe had asked her not to, and she felt she owed it to her friend to keep the secret.
Three years later, Doe wrote a letter to a school counselor revealing the abuse. She said the letter was prompted by a sex education unit at her school. "In family life we were talking about how sex is basically a gift that God has given to us to reproduce in a marriage. And how that can be abused by like raping and molesting and that whole deal. And they were starting to get into detail about it. And it was starting to get to me." The letter is for the most part consistent with Doe's trial testimony, but she gave a different version of what happened after the abuse ended. In the letter, she said her grandmother had come home. "[W]hen he heard something at the door he grabbed me and put my shirt and underwear back on literally threw [me] on the couch and ran into the bathroom. I started crying and my grandma said 'what's wrong' and I said I had a bad dream! But the thing is it wasn't a bad dream it was real." Doe's counsellor reported the abuse to authorities.
In 2012, Riverside County Detective Karla Beler received a report from Orange County Child Protective Services relating Doe's allegations. As part of her investigation, she arranged a forensic interview of Doe. The interview was videotaped and the prosecution played the tape for the jury. In the interview, Doe recounted basically the same facts she later told the jury in person, with one exception. At trial, Doe said her uncle had not penetrated her, but in the interview she said his hand and penis rubbed her "on the outside and a little bit on the inside too."
D. Milum's Denial of the Abuse
Milum testified at trial. He forcefully denied Doe's account of sexual abuse, in general and in its specific details. He denied being left alone with Doe and told the jury he had never even seen her naked.
He also challenged Doe's claim that her grandmother would have gone out at that time. "She was ill. She eventually developed . . . COPD [Chronic Obstructive Pulmonary Disease] and died from it. She was severely asthmatic. She just didn't get around. My mom was a short, heavy woman. She didn't move a lot. I mean, furthermore, she couldn't stand the hot, so we had a swamp cooler going all the time. She had very bad lungs. She died from it."
According to Milum, Doe never said anything to him about the abuse. He first heard about it three years prior to trial, when his aunts called him to tell him about her allegations.
E. Milum's Behavior After Learning of the Accusations
After learning of Doe's allegations, Milum hired an attorney. He said he did so "Because they were serious allegations." He said his attorneys "told me to just go on about my life, you know, you can't, you know, stop your life because they can't find anything, and so I did. I just went about my life." He said he was married and he and his wife were expecting a child. He got a job as a senior inspector in the engineering department of an oil refinery near Salt Lake City, Utah and he relocated. He said, "I just stayed focused on my career and my family."
On July 20, 2013, Detective Beler arranged for Doe to make a pretext call to Milum. Milum hadn't answered three prior pretext calls, but answered the fourth call. Doe said she had been learning about sex and molestation at school and wanted to talk to him about what had happened between them when she was younger. Milum did not respond and hung up the phone. Milum explained he hung up because he felt "if you don't have nothing nice to say, don't say nothing at all. I'm not going to curse and swear at a child."
When Detective Beler learned a warrant had issued for Milum's arrest, she reached out to Salt Lake City Detective Jose Flores. Flores contacted Milum's employer, who told the detective Milum was at work. Flores, a second detective, and two uniformed police officers went to Milum's workplace, but found he had left. He had left behind his personal belongings, including a wallet containing his California identification card, credit cards, and $270 in cash. Milum never returned. Detective Flores left a message for Milum to stop by the police station to retrieve his belongings, but he never did. On February 21, 2014, his wife went to the police station to retrieve them, but the police refused to release them to her.
Milum explained he had left work that day because his attorney had called to tell him a warrant had issued related to Doe's allegations. He said he was not fleeing the police, but left to take care of the problem, and drove to California, where he turned himself in on February 20, 2014. He said he was acting on advice of counsel by surrendering to authorities in California, and he did so within two weeks of Detective Flores's attempt to contact him at his workplace. He explained he left his wallet behind because he was stressed, "didn't really care," and had other cards to allow him to access funds.
F. Doe's Mother's Accusations
Doe's mother, who is also Milum's half sister, testified she too had been abused by Milum many years earlier. She said when she was 12 and Milum was 13, he caught her kissing an older boy and used her fear of her mother to coerce her into a sex act. She said he told her "if I didn't want to get in trouble, if I don't want him to tell mom that I was kissing this individual, that I was going to give him head." She said she complied because she was afraid her mother would beat her and she wouldn't have done it if he hadn't threatened her. Doe's mother recalled Milum contacted her in 2004 to apologize, she believed he was sincere, and she accepted his apology.
She also admitted to having several criminal convictions. She had committed second degree burglary, assault, and passing forged checks. Though she was incarcerated at the time of trial, she said she received nothing in exchange for her testimony. She said, "I'm here to testify because I feel like the acts that were caused and the effect of when I was a minor as a child have been repeated to my child. And although I forgave [Milum] for what he did to me, I cannot allow this to be—this is unacceptable and this is the only way that I can support my child."
G. Milum's Testimony About the Prior Sexual Abuse
Milum admitted coercing his sister to fellate him more than 20 years ago and admitted she did it against her will. Asked whether he was aware of what he was doing at the time, he said, "As much as a 13-year-old can be." Asked why he did it, he responded, "I was a dumb kid."
He admitted apologizing for his conduct. "I was utterly ashamed of what happened when we were younger. I lived with the guilt and shame of that stuff for so damn long and I waited a really long time to just get it off my chest and talk to her about it." He explained that he and his sister had an inappropriate relationship as children. "We didn't have neighbors. We didn't really associate with people. We, I don't know, we kind of clung to each other. You described it on Friday as, you know, fighting between brothers and sisters and that kind of thing. That's how our lives were, but it wasn't so much fighting. It was bickering back and forth and just inappropriate closeness." He said, "As I got older, I began to—I don't know, a little bit maturity and sense set in. I became angry and distraught by the childhood we had lived. It bothered me deeply. And I never had an opportunity to talk to her, so when I finally did have that opportunity, I—I made sure I got everything off my chest and spoke what I had to say."
H. Jury Verdict and Motion for New Trial
On June 16, 2015, the jury found Milum guilty on all three counts. On June 26, 2015, the trial court found he had a prior conviction.
Milum replaced his trial counsel, and new counsel filed a motion for a new trial arguing the trial court had erred by allowing Doe's mother to testify about the abuse. He argued the evidence could be admitted under Evidence Code section 1108 only if the court found he understood the wrongfulness of his conduct at the time of the incident. Because there is a statutory presumption children under 14 years old cannot commit a crime (Pen. Code, § 26), and the prosecution presented no evidence at the pretrial hearing to rebut that presumption, he argued the trial court could not reasonably find he knew his conduct was wrongful. Defense counsel did not raise this argument at the pretrial hearing, so new defense counsel also argued he had received ineffective assistance of counsel.
The trial court accepted there was no direct evidence concerning Milum's knowledge of the wrongfulness of his conduct at the pretrial hearing and indicated it would not consider evidence elicited at trial. However, the court said it could make a determination of Milum's knowledge of wrongfulness based on the victim's testimony about the abuse at the pretrial hearing. The court said "someone who is blackmailing someone else in order to get them to orally copulate them knows of the wrongfulness of their actions. I do think that that is enough." Because the court "would have made the same finding at the [pretrial] 402 hearing," the court denied the motion for a new trial. The court also indicated it found no basis for finding Milum received ineffective assistance of counsel.
The court then sentenced Milum to consecutive indeterminate terms of 14 years to life on count 1 and 30 years to life on count 2, respectively, and a consecutive determinate term of 12 years on count 3. The court added a five-year enhancement for the prior conviction, resulting in a total determinate sentence of 17 years, to be followed by an indeterminate sentence of 44 years to life.
On April 7, 2016, Milum filed a timely notice of appeal. On July 3, 2017, while his appeal was pending, Milum filed a petition for writ of habeas corpus invoking this court's original jurisdiction. On July 13, 2017, we consolidated the appeal and the habeas petition for the purpose of determining whether an order to show cause should issue.
II
DISCUSSION
A. Evidence of the Prior Sexual Offense
Milum raises on appeal the same argument he raised in his motion for a new trial—that the trial court committed prejudicial error by allowing Doe's mother to testify about the prior unadjudicated abuse under Evidence Code section 1108 (section 1108). He says the propensity evidence was inadmissible because the prosecution did not prove by clear and convincing evidence he understood the wrongfulness of his act when he committed it at age 13.
1. Additional Background
Before trial, the People moved for an order allowing them to present evidence Milum had sexually molested his sister, Doe's mother, when both were minors. At a pretrial hearing, the People explained Doe's mother had accused Milum of coercing her into sex acts multiple times over four years, all before they were 14 years old. When defense counsel objected to the vagueness of the accusations, the People countered Doe's mother recalled one specific incident when Milum coerced her to fellate him. The People represented she would testify Milum had caught her smoking marijuana or kissing a boy when she was 11 years old and had then "blackmailed" her into fellating him by threatening to tell their mother about her misconduct. The People did not present her testimony or any other evidence at the hearing.
Milum's defense counsel acknowledged section 1108 "generally allows for the admission of uncharged sexual offenses," but argued the evidence should be excluded in this case because it was unduly prejudicial under Evidence Code section 352 (section 352). The trial court rejected Milum's argument and admitted the evidence on the condition that Doe's mother provide sufficiently specific testimony about the incident.
As we recounted above, at trial, Doe's mother said Milum coerced her to fellate him by threatening to tell their mother he had seen her kiss a boy. She said the incident happened when she was 12 and Milum was 13, nearing 14. She said she fellated him only because she feared being physically beaten by their mother. She said he had apologized years later and she had forgiven him. Milum responded by admitting the act, saying it was part of a generally inappropriately close and fraught relationship, and admitted apologizing to his sister when he was older because he had come to be troubled by it.
After trial but before sentencing, appellant sought a new trial based on the admission of this testimony, a motion the trial court denied.
2. Analysis
Milum is unquestionably right on legal principle. It is well established section 1108 permits evidence a defendant committed other sexual offenses to prove his propensity to commit a charged sexual offense. (Evid. Code, § 1108; People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013.) However, to be a "sexual offense" under the statute, the conduct must be a specified type of sexual misconduct which constitutes "a crime under the law of a state or of the United States." (Evid. Code, § 1108, subd. (d)(1).) It is also well established Penal Code section 26, clause One, creates a rebuttable presumption that a child under 14 is incapable of committing a crime, and may be found to have committed a crime only on clear and convincing evidence the minor appreciated the wrongfulness of the conduct when it was committed. (In re Manuel L. (1994) 7 Cal.4th 229, 232.)
Generally, evidence of prior conduct is not admissible to prove conduct on a specific occasion. (Evid. Code, § 1101, subd. (a).) But section 1108, subdivision (a) provides when a defendant is charged with committing certain sexual offenses, Evidence Code section 1101 does not make inadmissible evidence he committed another sexual offense, though the evidence may yet be inadmissible under the principles of section 352.
Our Supreme Court put these principles together and concluded the presumption limits the admissibility of propensity evidence concerning unadjudicated acts committed when a defendant was less than 14 years old. (Cottone, supra, 57 Cal.4th at p. 280.) "The presumption of incapacity set forth in Penal Code section 26(One) applies when the prosecution seeks to prove that the defendant committed an unadjudicated sexual offense before reaching age 14. The presumption must be overcome before the evidence may be admitted. This conclusion is dictated by the statutory language. [Evidence Code] [s]ection 1108 authorizes admission of such evidence only if the conduct amounts to a 'crime.' [Citation.] . . . '[F]or prior sexual offense evidence to be admitted the offense must be a crime, and to be a crime, a child under 14 years of age must appreciate the wrongfulness of the conduct.'" (Ibid.) The People rightly concede this is the law.
It is up to the trial court to make a finding whether the minor could commit a crime. "[T]he trial court evaluates whether a defendant had the capacity to understand the wrongfulness of his or her conduct . . . as a threshold question to admitting an unadjudicated sexual offense. Section 1108 addresses the admissibility or inadmissibility of this evidence." (Cottone, supra, 57 Cal.4th at p. 282.) "[W]hether a defendant understood the wrongfulness of an unadjudicated sexual offense allegedly committed before age 14 is an evidentiary question for the court to determine under [Evidence Code] section 405." (Id. at p. 285.) The clear and convincing standard of proof governs because capacity is not an element of the crime. (Id. at p. 281.)
Knowledge of the wrongfulness of the conduct may not be inferred from the act alone, instead the court must look to "'the attendant circumstances of the crime, such as its preparation, the particular method of its commission, and its concealment'. . . Moreover, a minor's 'age is a basic and important consideration [citation], and, as recognized by the common law, it is only reasonable to expect that generally the older a child gets and the closer [he] approaches the age of 14, the more likely it is that [he] appreciates the wrongfulness of [his] acts.'" (Cottone, supra, 57 Cal.4th at pp. 280-281.)
In this case, Milum's trial counsel did not raise these principles at the pretrial hearing on the admissibility of the evidence. Instead, he argued only that Milum's conduct was too distant in time and the prejudice from admitting it substantially outweighed its probative value under section 352. This failure was an error by trial counsel and led the trial court to err as well. It is uncontested—and the record demonstrates—that the trial court did not make a finding at the pretrial hearing that Milum knew the wrongfulness of his act. Instead, the trial court ruled on the grounds the parties raised at the hearing—that the evidence was admissible under sections 1108 and 352.
As we have recounted, the parties and trial counsel circled back after the jury had reached a guilty verdict and Milum filed a motion for a new trial. In deciding the posttrial motion, the trial court properly limited itself to evidence presented at the pretrial hearing and accepted there was no direct evidence concerning Milum's knowledge of the wrongfulness of his conduct at the pretrial hearing. However, the court found Milum knew of the wrongfulness of his youthful act based on his sister's "testimony at the in limine" hearing that Milum had threatened her to elicit oral sex. The court said "someone who is blackmailing someone else in order to get them to orally copulate them knows of the wrongfulness of their actions. I do think that that is enough." The court said it "would have made the same finding at the [pre-trial] 402 hearing," and denied the motion for a new trial.
There are two problems with the court's belated factual finding. First, as the People correctly acknowledge in their brief, Milum's sister—the victim of the prior offense—did not in fact testify at the pretrial hearing. No one did. The trial court's recollection that she had done so was mistaken. The court heard only the prosecutor's representations about mother's likely testimony. (In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11 ["It is axiomatic that the unsworn statements of counsel are not evidence"].) Nor did the parties submit other evidence, so there was no factual basis for the court's capacity finding, much less substantial evidence which could provide a basis for us to affirm the order on the merits. (People v. Therman (2015) 236 Cal.App.4th 1276, 1279.)
Second, the court improperly found Milum had knowledge of the wrongfulness of his act based on the nature of the act alone—blackmailing someone for sexual attentions—rather than evidence of Milum's manner in committing the act or other conduct that could provide a circumstantial basis for inferring he knew the act was wrongful at the time. (Cottone, supra, 57 Cal.4th at pp. 280-281.) Missing from the pretrial hearing was any evidence of—or even any representation about—the circumstances, such as whether he made efforts to assure he and his sister were alone or closed away, attempted to swear his victim to secrecy, or whether his conduct was part of a gradual escalation that could be viewed as part of an effort to groom his sister into committing wrongful acts. Such evidence might have warranted the inference that Milum knew the conduct was wrongful. Without it, we must conclude the trial court's finding was not supported by substantial evidence.
Though it plays no role in our analysis of the claims in this appeal, we note in his petition for writ of habeas corpus, Milum has presented a significant amount of evidence about the environment he and his sister endured as children and the unusual sexual nature of their relationship, evidence that would have been relevant to the determination whether he understood the wrongfulness of his juvenile conduct when it happened. He also presents a psychologist's report concluding, based on a review of that evidence, that he did not understand the wrongfulness of his conduct at the time.
Recognizing these errors of trial counsel and the trial court does not end our analysis, however. The People argue we should affirm because (i) Milum forfeited this issue by failing to object at the pretrial hearing, (ii) the forfeiture does not constitute deficient performance by his trial counsel, and (iii) any error was harmless.
On forfeiture, the Supreme Court has made clear it is defendant's objection that triggers the obligation of the trial court to make a factual finding concerning capacity under section 1108. "[W]e hold that upon a defendant's timely objection, the trial court must find by clear and convincing evidence that the defendant had the capacity to commit an unadjudicated juvenile offense before admitting that evidence under section 1108." (Cottone, supra, 57 Cal.4th at p. 292, italics added.) Here, Milum admits his trial counsel did not make a timely objection, but instead raised the issue after the trial court admitted the testimony, and the jury heard the testimony and reached a guilty verdict. We therefore agree with the People that Milum forfeited the claim of error because it involves a challenge to the admission of evidence. (Evid. Code, § 353 ["A verdict or finding shall not be set aside . . . by reason of the erroneous admission of evidence unless . . . [¶] . . . [t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion"]; People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 (Williams).)
Milum's claim of error is not saved by the fact he obtained new counsel and raised the issue in a posttrial motion for a new trial. The requirement that a defendant preserve an appellate claim by objecting at trial exists to give the trial court the opportunity to correct the record before the jury renders a verdict that may rely on the evidence. Where the error concerns the admission of evidence, it is preferable that the objection comes before the jury hears the offending evidence, though the trial court may be able to mitigate an error by striking the evidence after the fact and directing the jury to disregard it. (See People v. Mayorga (1985) 171 Cal.App.3d 929, 938-939 [in context of a request for sanctions based on destroyed evidence, preferred method is a pretrial motion, then objection to admission at trial, followed by the least preferred method, a motion to strike testimony].) The purpose behind the forfeiture rule—avoiding or correcting error before it can infect a jury verdict—can be served only if defendants are required to raise objections in a timely fashion. (People v. Williams (1997) 16 Cal.4th 153, 254; People v. Gallego (1990) 52 Cal.3d 115, 179-180.)
Milum may nonetheless challenge the introduction of the propensity evidence as being the result of ineffective assistance of counsel. He argues his trial counsel was ineffective for failing to object to Doe's mother's testimony based on the Supreme Court's holding in Cottone. To establish ineffective assistance of counsel, he must show deficient performance and prejudice—here, that trial counsel's failure to raise the question whether he appreciated the wrongfulness of his conduct "fell below an objective standard of reasonableness" under prevailing professional norms and that there is "a reasonable probability that, but for counsel's unprofessional error[], the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 688, 703.) A reasonable probability is a probability sufficient to undermine confidence in the outcome, and it is Milum's burden to prove ineffective assistance. (Id. at pp. 688, 694.) He must show prejudice was a "'demonstrable reality,' not simply speculation as to the effect of the errors or omissions of counsel." (People v. Williams (1988) 44 Cal.3d 883, 937.)
We conclude Milum's trial attorney performed unreasonably when he failed to challenge the introduction of Milum's sister's testimony. At the time, the precise issue had been decided by our Supreme Court in Cottone. To present evidence of a prior unadjudicated sexual offense committed as a minor, the prosecution was required to successfully rebut the presumption that Milum appreciated the wrongfulness of his conduct. Milum did not object. Trial counsel submitted an affidavit to the trial court in support of Milum's motion for a new trial where he represented, "I did not object to the 1108 evidence of uncharged sexual conduct and did not ask for an Evidence 405 hearing and analysis on the ground that the defendant, when 13 years old, did not appreciate the nature of the criminal conduct." "[A]t the time the motion in limine was heard, I did not know Mr. Milum was only 13 years old at the time of the alleged uncharged conduct against Jane Doe . . . [¶] . . . [and] I had no tactical reason for not objecting on the ground stated in paragraph 5."
The declaration shows Milum's trial counsel simply failed to recognize there was a rebuttable presumption that he was not legally capable of committing the prior offense. Had he performed minimal investigation and legal research, defense counsel would have found the unadjudicated sexual conduct fell within the section 26 presumption, challenged the introduction of the propensity evidence, and forced the People to present clear and convincing evidence Milum did appreciate the wrongfulness of his conduct. As a result, the trial court allowed evidence that corroborated Doe's accusations against Milum to be put before the jury without making the threshold capacity finding that renders the evidence relevant in the first place. Thus, counsel's failure cannot be papered over as a tactical decision. Where, as here, "the knowledge necessary to an informed tactical or strategic decision is absent because of counsel's ineptitude or lack of industry, no such ground of justification is possible." (In re Saunders (1970) 2 Cal.3d 1033, 1042, fn. 7.)
Despite the seriousness of the error, however, on this appellate record we cannot conclude there is a reasonable possibility the jury would have reached a result more favorable to Milum had his trial counsel objected. Because the ineffectiveness claim is based on counsel's failure to object to the admission of evidence, to show prejudice, Milum must show it is reasonably probable (1) had his attorney objected, he would have succeeded in getting the evidence excluded; and (2) had the propensity evidence been excluded, the jury would have reached a more favorable verdict. (Cf. People v. Frye (1998) 18 Cal.4th 894, 988-989 [to establish ineffective assistance of counsel based on failure to make a motion to suppress evidence, defendant must show reasonably competent counsel would have made such a motion and it would have been successful]; People v. Wharton (1991) 53 Cal.3d 522, 576 ["'Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excluded evidence in order to demonstrate actual prejudice'"].)
On the limited record on appeal, we are not able to determine, one way or another, whether Milum would have succeeded in having the propensity evidence excluded. We find ourselves in that position precisely because the parties did not litigate the issue as they should have. They presented no evidence at the hearing on the People's motion in limine. At trial, Milum said he was aware of what he was doing "[a]s much as a 13-year-old can be" and explained he did it because he "was a dumb kid." He also explained he and his sister had an inappropriate relationship as children and seemed to suggest he came to appreciate the wrongfulness of his conduct when he got older, which led him to apologize. While this evidence suggests Milum may not have appreciated the wrongfulness of his conduct, fundamentally it is ambiguous. Viewed against the background of additional information submitted with his habeas petition, it strongly supports the view he did not know what he had done was wrong until later. And a psychologist's report submitted in support of the habeas petition stands for just that proposition. However, in resolving this appeal we must limit ourselves to the appellate record, and we conclude Milum's stray comments do not establish it was reasonably probable Milum would have succeeded in excluding his sister's testimony about the prior sexual misconduct had the parties litigated that issue as they unquestionably should have done.
Though the People were under no affirmative obligation to ensure the issue was raised, it is of course in their interest to avoid proceeding to trial based on erroneously admitted evidence that may later undermine a guilty verdict.
We reach this conclusion only because we are constrained to the record on appeal. Milum's habeas petition presents additional evidence obtained after trial and raises additional claims of serious error by both prosecution and defense counsel. We may not consider that evidence or those additional asserted errors in resolving this appeal. However, we emphasize that our conclusion Milum has not established prejudice on appeal does not mean we would reach the same conclusion on the fuller habeas record. Indeed, we have issued an order to show cause in the trial court precisely because we have grave concerns about the verdict after viewing that fuller record.
B. Denial of Romero Motion
Milum argues the trial court abused its discretion by denying his motion to dismiss a prior strike.
1. Additional Background
The People alleged Milum had a prior felony conviction for assault with a deadly weapon causing great bodily injury on a peace officer, a violation of section 245, subdivision (c). The offense occurred in 1998, when Milum was a juvenile, but the conviction occurred shortly after his 18th birthday. The People alleged the conviction was a serious felony, mandating a five-year enhancement (§ 667.5, subd. (a)), and a serious or violent felony, making it a strike prior. (§§ 667, subds. (c) & (e)(1) & 1170.12, subd. (c)(1).)
After trial, the court found true the nickel and strike prior allegations. Milum filed a Romero motion to dismiss the strike prior based on his young age when he committed the prior offense, the remoteness of the conviction, Milum's lack of prior convictions for a sexual offense, and the "declining level of seriousness and frequency of [his] convictions as an adult."
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
Other than his strike conviction in 1998 and his convictions for the 2004 offenses in this case, Milum's criminal history consists mainly of several convictions in August 2006—a felony conviction for possession of a controlled substance for sale (Health & Saf. Code, § 11378), a misdemeanor vandalism conviction (Pen. Code, § 594), a misdemeanor conviction for being under the influence of a controlled substance (Health & Saf. Code, § 11550), and a misdemeanor for operating a motor vehicle while under the influence (Veh. Code, § 23152, subd. (a)). In addition, Milum suffered misdemeanor convictions for driving under the influence and without a valid driver's license in 2010 and suffered two Vehicle Code infractions in 2012.
The trial court held a hearing but denied Milum's motion. The court commended appellant's apparent ability to "turn his life around" since 2004, but noted he had committed the offense against Doe soon after being released from prison on the strike prior and he had the opportunity to rehabilitate only because Doe did not report the incident for years. Under those circumstances, and given the serious nature of offenses against Doe, the trial court held appellant did not fall outside the spirit of section 667, subdivisions (c) and (e)(2)(A). "So the motion to set the strike aside will be denied. I do think that given the behavior and the relative time between him being released from prison and committing this new offense weigh heavier in my mind than just the passage of time and his ability to turn his life around, although I do commend him for that. That request will be denied."
The court then sentenced Milum to an indeterminate term of 14 years to life on count 1, a consecutive indeterminate term of 30 years to life on count 2, and a consecutive determinate term of 12 years on count 3. The court added a determinate, five-year enhancement. Milum's total sentence is 17 years' imprisonment, followed by an indeterminate sentence of 44 years to life.
1. Analysis
In Romero, the Supreme Court held a trial court may strike or vacate an allegation or finding that a defendant has been convicted of a serious or violent felony for purposes of the "Three Strikes" law if it determines it is "in furtherance of justice." (Romero, supra, 13 Cal.4th at pp. 530-531; see also § 1385, subd. (a).) "[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law . . . the court in question must consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, [he] may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Williams, supra, 17 Cal.4th at p. 161.)
We review the trial court's denial of the Romero motion for abuse of discretion. (Williams, supra, 17 Cal.4th at p. 162.) We ask "whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts." (Ibid.) We presume the trial court acted properly, and Milum bears the burden to show irrationality or arbitrariness. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
Milum asks us to hold the trial court abused its discretion by refusing to strike his strike prior because his serious offenses occurred 10 years or more prior to his trial, a period when he suffered no serious legal trouble. In short, he asks us to conclude his apparent rehabilitation required the trial court to overlook his prior serious assault, molestation, and possession for sale offenses. We refuse the invitation. We agree it was within the trial court's discretion to rule in Milum's favor. But we are required to defer to the trial court and reverse only if its decision was irrational. Here, the trial court chose to emphasize the seriousness of the prior offenses and the fact that Milum committed the molestation offense so soon after being released from prison for his prior serious offense. We add that Milum was convicted in 2006 for possession of drugs for sale, itself a serious conviction for a serious offense. (See O'Connell v. City of Stockton (2007) 41 Cal.4th 1061, 1072 [characterizing as "very serious drug crimes" those "involving the manufacture, sale, or possession for sale of specified amounts of certain controlled substances"].) We conclude the trial court did not act irrationally or arbitrarily in so deciding.
Milum relies on People v. Garcia (1999) 20 Cal.4th 490 and People v. Bishop (1997) 56 Cal.App.4th 1245 to argue the trial court was obligated to reach a different result here. We do not agree those cases support finding the trial court in this case abused its discretion. In both cases, the trial court exercised its discretion to dismiss prior strike allegations or findings in the interest of justice. And in each case the higher court affirmed the trial court's decision as within its discretion. In other words, the appellate courts held the trial court was not irrational in striking the priors. (Garcia, at pp. 493- 494; Bishop, at pp. 1250-1251.) Even if the facts of this case and the cases Milum cites were on all fours, it would not follow that the trial court here acted irrationally in making a contrary determination. Where the trial courts have broad discretion, it is to be expected that different courts will reach different conclusions. Our job is not to make sure outcomes match, but to referee the boundaries of rationality at the extremes. (Bishop, at p. 1251 ["While the People and perhaps even this court may be of the opinion that Bishop appears undeserving of leniency, the paramount consideration is not what the prosecution, defense or appellate court might conclude. Rather, what counts is what the trial court in this case concluded, as expressed by the reasons it stated under section 1385, subdivision (a)"].) Here, the trial court did not breach that boundary in finding justice did not require striking Milum's prior.
In Garcia, the trial court dismissed the prior strikes for purposes of sentencing on one count, but not another. (People v. Garcia, supra, 20 Cal.4th at pp. 492-493.)
In any event, we find the facts of the cases Milum cites distinguishable. In Garcia, the defendant's criminal history did not involve violence, whereas Milum has a serious violent felony conviction. (People v. Garcia, supra, 20 Cal.4th at p. 503.) In Bishop the defendant was being sentenced for petty theft, whereas Milum is being sentenced for the sexual assault of a five-year-old niece. (People v. Bishop, supra, 56 Cal.App.4th at pp. 1247-1248.) Thus, the facts of these cases were not on all fours with the facts of this case. The trial court therefore neither abused its discretion nor reached a conclusion out of step with these precedents.
Nor is People v. Cluff (2001) 87 Cal.App.4th 991 to the contrary. Defendant Cluff had been convicted and served nine years for several sexual offenses. He had registered under the sex offender registration statute multiple times, but failed to update his registration in 1996 and 1997 after the law changed to require updates around each birthday, even if the offender had not moved. Law enforcement visited his home and left him a message asking him to come in to register. When he appeared, the police arrested him, and the district attorney charged him with a felony violation of section 290, subdivision (a)(1). After he was convicted, the trial court denied his motion to strike his priors and sentenced him to 25 years to life in prison. (Cluff, at pp. 994-996.) The court of appeal determined the new offense was a technical violation of the sex offender registration statute, vacated the sentence and remanded for a new Romero hearing to determine whether Cluff fell outside the spirit of the Three Strikes law. (Cluff, at pp. 1004-1005.) Milum's new convictions are obviously not technical in any sense; nor are his priors. Cluff therefore provides no support for finding the trial court abused its discretion in this case.
C. Cruel and Unusual Punishment
Milum argues his sentence "is tantamount to a sentence of life without parole" and therefore cruel and unusual punishment under the Eighth Amendment to the United States Constitution. The trial court sentenced Milum to a total of 17 years' imprisonment, followed by an indeterminate term of 44 years to life. He requests that we modify the sentence, make all counts concurrent to count 3, abstain from doubling for the strike prior, and impose a total state prison sentence of 15 years to life.
Both the California and United States Constitutions prohibit the imposition of cruel or unusual punishment. (See U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) However, successful challenges based on that prohibition are extremely rare. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.) Unless defendant's sentence is grossly disproportionate, the courts will not find an Eighth Amendment violation. (Ewing v. California (2003) 538 U.S. 11; Lockyer v. Andrade (2003) 538 U.S. 63.) We review this claim de novo. (Vo v. City of Garden Grove (2004) 115 Cal.App.4th 425, 433.)
Under article I, section 17 of the California Constitution we analyze three criteria to determine whether a sentence is cruel or unusual: the nature of the offense and the offender, a comparison of the sentence with those for other more serious offenses under California law, and a comparison of the sentence with those in other states for the same offense. (In re Lynch (1972) 8 Cal.3d 410, 425-427.) We take Milum's decision not to invoke the state constitutional provision as a concession his sentence is supportable under that standard. (People v. Retanan (2007) 154 Cal.App.4th 1219, 1231.) --------
Milum relies primarily on Coker v. Georgia (1977) 433 U.S. 584, 592. He argues his sentence violates the Eighth Amendment because it makes no "measurable contribution to acceptable goals of punishment." However, Coker is a death penalty case and is therefore inapt.
Milum's real complaint is he won't be able to complete his sentence during his natural lifetime. He refers us to the concurring opinion of Justice Mosk in People v. Deloza (1998) 18 Cal.4th 585, 600-601. There, the court had sentenced the defendant to 111 years in prison, and Justice Mosk argued the length of the sentence alone made it cruel and unusual. "A sentence of 111 years in prison is impossible for a human being to serve, and therefore violates both the cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution and the cruel or unusual punishment clause of article I, section 17 of the California Constitution." (Ibid.) He argued, "A grossly excessive sentence can serve no rational legislative purpose, under either a retributive or a utilitarian theory of punishment. It is gratuitously extreme and demeans the government inflicting it as well as the individual on whom it is inflicted. Such a sentence makes no measurable contribution to acceptable goals of punishment." (Id. at pp. 601-602.)
Justice Mosk's reservations have no application to this case. His target was not life sentences in general, but "century-plus sentences" that vastly exceed the human lifespan. (People v. Deloza, supra, 18 Cal.4th at p. 602.) For defendants, like Milum, "convicted of numerous counts," Justice Mosk concluded, "[t]he maximum sentence that should be imposed is one a defendant is able to serve: life imprisonment." (Ibid.) Crediting Milum's characterization, that is precisely the kind of sentence he received for multiple counts of child molestation after enhancement based on his recidivism. California courts have consistently upheld sentences that exceed a defendant's life expectancy. (See, e.g., People v. Retanan, supra, 154 Cal.App.4th at pp. 1230-1231 [upholding sentence of 135 years to life].) Milum's sentence of 61 years to life—though long—is short compared to the sentences in the cases Justice Mosk decried and cases like Retanan.
III
DISPOSITION
We affirm the judgment. We will issue a separate order to show cause in the trial court on the consolidated petition for writ of habeas corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: McKINSTER
Acting P. J. CODRINGTON
J.