Opinion
H044709
07-20-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES JEFFREY NICHOLS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS161856A)
I. INTRODUCTION
A jury convicted defendant James Jeffrey Nichols of indecent exposure (Pen. Code, § 314, subd. (1)) and engaging in lewd conduct in a public place (§ 647, subd. (a)). The trial court sentenced defendant to four years in prison.
All further unspecified statutory references are to the Penal Code.
On appeal, defendant contends: (1) his trial counsel was ineffective for failing to object to testimony about the contents of surveillance videos introduced as exhibits; and (2) the trial court abused its discretion by admitting evidence of two prior uncharged sex crimes. For reasons that we will explain, we will affirm the judgment.
II. BACKGROUND
A. Charged Offenses: October 2016
At approximately 4:50 p.m. on October 17, 2016, Keith Mitchell was driving a bus for Monterey Salinas Transit (MST) in Monterey County. An elderly woman on the bus approached Mitchell and informed him that there was "a passenger exposing himself." The woman, who appeared to be distressed, gestured at the person who had exposed himself to her, whom Mitchell later identified as defendant. Mitchell asked the woman to provide her name and wait for police to arrive, but she declined to do so. Mitchell used his radio to notify the communications center about the incident. Mitchell asked defendant to wait, but defendant ignored him and "immediately exited the bus."
MST Senior Operations Supervisor Debra Daniels was notified about the incident and reviewed the surveillance video from the bus. After viewing the video, Daniels filed a police report and provided the video (People's exhibit 1) to the Monterey Police Department. Daniels later requested a high-definition version of the same video (People's exhibit 2).
Monterey Police Officer Greg Galin subsequently obtained the lower definition video of the bus incident from Daniels. When Officer Galin viewed the lower definition video, he could see that defendant "appeared to have exposed himself," but he could not actually see defendant's penis. Daniels later provided Officer Galin with the high-definition version of the video. Upon viewing the high-definition version of the video, Officer Galin could see that defendant had exposed his penis on the bus.
Monterey County District Attorney Investigator Oliver Minnig edited the high-definition version of the video. Minnig zoomed in on defendant and cropped the video to create People's exhibit 3. Minnig zoomed in further and adjusted the brightness and contrast to create People's exhibit 4.
At trial, the prosecutor played People's exhibit 1 and asked Daniels what she observed in the video. Daniels replied that she saw defendant exposing himself to an elderly woman seated across from him. On cross-examination, defense counsel asked Daniels if she could tell whether defendant's penis seemed "erect" or "flaccid." Daniels replied that it "seemed more flaccid" to her.
The prosecutor played People's exhibit 2 during Officer Galin's testimony and asked him what he observed in the video. Officer Galin described how defendant looked toward the victim, tapped his leg, and nodded his head prior to exposing his penis to the victim. Officer Galin described how defendant then touched his groin area with his hand, took his penis out of his pants, and held it toward the victim for a second or two. To him, defendant's penis "appeared to be flaccid."
B. Uncharged Offense: May 2013
On May 12, 2013, P.L. was working as a housekeeper at a hotel in Monterey. When she knocked on defendant's door and asked him if he wanted room service, which he did, something about defendant's gestures made her feel "uncomfortable . . . embarrassed, [and] intimidated." She turned her back on defendant to get some towels from her cart, and when she faced defendant again he "had his penis out exposed offering it to [her]" and asked her if she "wanted some." Although she threatened to call the police as she left his room, defendant followed her to the next room. He asked her to come back to his room, at which point she left to call the police. Defendant was convicted of indecent exposure (§ 314, subd. (1)) as to this incident.
C. Uncharged Offense: March 2014
On March 11, 2014, V.E. was parked at a Quick Stop in Seaside. Defendant was parked next to her. She looked over and saw him "fully exposed and masturbating." When she tried to back out, defendant "kept swinging the door" at her car. She couldn't back out her car for a couple of minutes, and defendant was looking at her and masturbating the entire time. Defendant was "fully aroused." Defendant was convicted of indecent exposure (§ 314, subd. (1)) as to this incident.
D. Defense
The defense did not put on any evidence. Defendant's trial counsel conceded that defendant was guilty of engaging in lewd conduct in a public place (§ 647, subd. (a); count 2) but argued that the jury should find defendant was not "exposing himself intentionally" and thus not guilty of indecent exposure with a prior (§ 314, subd. (1); count 1). Defendant's trial counsel argued that the jury could find the exposure was accidental or that defendant had merely been "adjusting himself" and had not actually exposed his penis. Defendant's trial counsel also asserted that the prior offenses were dissimilar, because on the bus defendant had not been as "aggressive" in exposing himself.
E. Verdicts and Sentencing
The jury found defendant guilty of both counts: indecent exposure with a prior (§ 314, subd. (1)) and engaging in lewd conduct in a public place (§ 647, subd. (a)). The trial court found true an allegation that defendant had served a prior prison term (§ 667.5, subd. (b)).
The trial court sentenced defendant to a four-year prison term comprised of the upper term of three years for count 1, a stayed 180-day concurrent term for count 2, and a consecutive one-year term for the prior prison term enhancement.
III. DISCUSSION
A. Admission of Uncharged Offenses
Defendant contends that the trial court abused its discretion in admitting evidence of the prior uncharged sex crimes involving P.L. and V.E. pursuant to Evidence Code section 1108. Defendant argues that the prior incidents were "very different and far more egregious [than] the charged offense" and that therefore the prejudicial effect of the prior uncharged sex crimes outweighed their probative value under Evidence Code section 352.
1. Proceedings Below
The prosecutor filed a motion in limine requesting to admit three prior uncharged sex offenses, which included the two incidents that were admitted at trial and an August 2012 incident in which defendant called out to a woman while he was masturbating in his car. The prosecutor argued that the evidence was admissible under Evidence Code section 1108 to show defendant's "propensity to expose his penis to women in public for his own sexual gratification." The prosecutor argued that four factors weighed in favor of admitting the evidence under Evidence Code section 352: (1) the offenses all involved defendant exposing his penis to women he did not know, in public locations; (2) the prior offenses had occurred within only a few years of the charged offense; (3) the prior offenses were also relevant to prove identity, intent, common scheme, and absence of mistake pursuant to Evidence Code section 1101, subdivision (b); and (4) defendant had been convicted of two of the prior offenses.
Defendant filed a motion in limine to exclude or limit the prior offense evidence. He argued that the prejudicial effect of that evidence was substantial because his conduct was more egregious during those offenses than during the charged offense. He pointed out that the prior offenses involved "cat calling to victims prior to the incident, exposure of an erect penis while masturbating, and comments towards the victims that specifically drew their attention to his erect, exposed penis." He also argued that the probative value of the prior offenses was diminished because the jurors would be viewing the video of the charged offense. Defendant offered to stipulate that he had been convicted of indecent exposure on prior occasions.
At the hearing, the trial court admitted the May 2013 and March 2014 offenses but excluded the August 2012 offense, which did not result in a conviction. The court explained that it did not find the two prior convictions to be any more prejudicial than the charged offense, specifically disagreeing with defendant's contention that "because his penis was erect these [prior offenses] were more prejudicial." The court found that the prior offenses were "certainly similar enough to be admitted, certainly relevant, and not too remote." The court also found that the prior offenses were unlikely to "confuse or distract the jury from [its] main inquiry" and would not result in an undue consumption of time.
2. Applicable Law
Evidence Code section 1108, subdivision (a) provides: "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 [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." Evidence of prior sexual offenses under Evidence Code section 1108 may be considered for any relevant purpose, "subject only to the prejudicial effect versus probative value weighing process required by [Evidence Code] section 352." (People v. Britt (2002) 104 Cal.App.4th 500, 505.)
Evidence Code section 352 provides that the "court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Our Supreme Court has explained that Evidence Code section 1108 "provides the trier of fact in a sex offense case the opportunity to learn of the defendant's possible disposition to commit sex crimes. [Citation.]" (People v. Falsetta (1999) 21 Cal.4th 903, 915 (Falsetta).) In Falsetta, the court explained that various factors inform "the trial court's discretionary decision to admit propensity evidence under [Evidence Code] sections 352 and 1108." (Id. at p. 919.) "Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (Id. at p. 917.)
We review the trial court's decision to admit evidence under Evidence Code sections 1108 and 352 for an abuse of discretion. (People v. Story (2009) 45 Cal.4th 1282, 1295.) Under this deferential standard, the trial court's ruling will " 'not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
3. Analysis
Defendant contends the prior uncharged offenses should have been excluded because they were "very different" from the charged offense. He points out that during the charged offenses he did not "indicate to anyone . . . that he wanted to have sex with them," as he did during the May 2013 incident. Defendant further notes that during the charged offenses he was not "continually masturbating" nor "physically preventing anyone on the bus from leaving," as he did during the March 2014 incident.
We find the trial court did not abuse its discretion by finding the uncharged offenses to be admissible under Evidence Code sections 1108 and 352. The uncharged offenses involved conduct that was very similar to defendant's conduct during the charged offense. (See Falsetta, supra, 21 Cal.4th at p. 917.) Both uncharged offenses were violations of section 314, which was one of the charged crimes. In all three instances, defendant showed his penis to a woman whom he had not previously met after drawing the woman's attention to himself. In light of these significant similarities, the trial court reasonably determined that the uncharged offenses were relevant to the charged offense, in that they showed defendant's "possible disposition" to commit sex crimes involving exposure of his penis to women in public places. (See Falsetta, supra, at p. 915.)
The trial court also did not abuse its discretion in determining that the probative value of the evidence was not substantially outweighed by the probability that its admission would "create substantial danger of undue prejudice." (Evid. Code, § 352.) The uncharged offenses were no more inflammatory than the charged offense and there was no probability that admission of that evidence would consume an undue amount of time or confuse the issues.
In sum, the trial court did not err by admitting evidence of the May 2013 and March 2014 uncharged offenses.
B. Ineffective Assistance of Counsel
Defendant contends that his trial counsel was ineffective for failing to object when Daniels (the MST Senior Operations Supervisor) and Officer Galin testified as to the contents of the bus surveillance videos. Defendant argues that the testimony: (1) was hearsay and improper lay witness testimony; (2) improperly invaded the province of the jury; and (3) violated the secondary evidence rule.
1. Legal Standards
"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. . . . Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).)
The prejudice element requires a showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different,"—i.e., "a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694.)
In deciding an ineffective assistance claim, the reviewing court need not inquire into the two components (deficient performance and prejudice) in any particular order. (See In re Cox (2003) 30 Cal.4th 974, 1019-1020.) "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland, supra, 466 U.S. at p. 697.)
2. Analysis
We address the second Strickland prong: prejudice. Defendant contends the testimony of Officer Galin and Daniels was prejudicial because "of the likelihood a jury will give added weight to a police officer's testimony" and because "it is plausible jurors would give more weight to the testimony of a Senior Operations Supervisor with twenty years of experience."
At trial, the jury saw four different versions of the surveillance footage: the initial low definition video (People's exhibit 1), the higher definition video (People's exhibit 2), and the edited versions created by the District Attorney investigator (People's exhibits 3 and 4). During deliberations, the jury asked to review "the video clips that were provided." Since the jurors viewed the videos themselves, they were able to determine for themselves whether defendant had exposed his penis and whether he did so "willfully and lewdly" (§ 314).
We have reviewed the videos. They show defendant pull down the waistband of his pants and briefly pull out what appears to be his penis. Immediately afterwards, the older woman who was sitting directly across from defendant gets up and reports something to the bus driver. --------
The prosecution's case was strong even apart from the surveillance video. Although the eyewitness did not testify, the bus driver testified about the eyewitness's statement and distressed demeanor. Defendant's flight immediately after the eyewitness's report indicated a consciousness of guilt. The jurors also heard testimony about defendant's two prior similar offenses, which was "relevant circumstantial evidence that [defendant] committed the charged sex offenses." (Falsetta, supra, 21 Cal.4th at p. 920.) Moreover, in her closing argument to the jury, the prosecutor did not rely on the allegedly improper statements of Daniels and Officer Galin. (See People v. Hendrix (2013) 214 Cal.App.4th 216, 250 [In evaluating prejudice, courts "may consider whether the prejudicial effect is reduced by a prosecutor's closing argument"].)
On this record—where the allegedly improper testimony was largely cumulative of what the jurors themselves viewed and there was very strong evidence of guilt—defendant has failed to show his trial counsel's assumed deficient performance resulted in prejudice. Defendant has failed to show that, but for counsel's failure to object to the allegedly improper testimony, the "result [would have been] more favorable to [him]." (Strickland, supra, 466 U.S. at p. 695.)
IV. DISPOSITION
The judgment is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
GREENWOOD, P.J. /s/_________
GROVER, J.