Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF190311. Paul A. Vortmann, Judge.
Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
In September of 2007, Robert Ramirez Nieto (appellant) was charged with nine sex offenses committed against two victims. The offenses were alleged to have occurred between November 1997 and December 1998. A jury found appellant guilty as charged in counts 1, 2, 3, 4, 5, and 6 of forcible lewd and lascivious acts (Pen. Code, § 288, subd. (b)(1)) on R., a child under the age of 14, and in counts 7, 8, and 9 of forcible lewd and lascivious acts (§ 288, subd. (b)(1)) against M., a child under the age of 14. The jury also found true the allegations that appellant committed the offenses against more than one victim (§ 667.61, subd. (b)); that appellant committed the offenses by use of force, duress, menace, and fear of immediate and unlawful bodily injury on the victim and/or another (§ 1203.066, subd. (a)(1)); and, as to all counts except count 5, that appellant had substantial sexual contact with the victim (§ 1203.066, subd. (a)(8)).
In the first amended information, count 5 included the allegation that the offense involved substantial sexual conduct with the victim (Pen. Code, § 12033.066, subd. (a)(8)). At trial, following evidence on that count, a second amended information excluded that allegation. The verdict forms and oral pronouncement of the verdict on the record accurately reflect this change. We note, however, that the minute order for the sentencing hearing, dated January 22, 2009, mistakenly states that count 5 included a true finding on the section 1203.066, subdivision (a)(8) allegation. In this case, the finding, or lack thereof, in count 5 does not make a difference in appellant’s sentencing. Appellant was statutorily ineligible for probation under both subdivision (a)(1) and (a)(8) of section 1203.066. Clerical errors may be corrected by this court on appeal. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we order the minute order corrected.
The trial court sentenced appellant to a determinate term of 42 years in state prison, consisting of full consecutive sentences of the midterm of six years on counts 1, 2, 3, 4, 5, 8, and 9, plus an indeterminate term of 30 years to life, consisting of consecutive 15 years-to-life terms on counts 6 and 7 under the multiple victim provision of the one-strike law (Pen. Code, § 667.61, subds. (b) & (e)(5)). Appellant was ordered to pay various fines and fees, to register as a sex offender, and to submit to DNA and AIDS testing.
Appellant contends (1) that the trial court erred when it allowed evidence of his propensity to commit the charged offenses under Evidence Code section 1108; (2) that he was denied his right to present a defense when the court excluded favorable evidence to rebut the propensity evidence; (3) that there was insufficient evidence to support counts 8 and 9; (4) that cumulative error occurred; and (5) that the trial court erred in imposing full term consecutive sentences on counts 2 and 3 and the statement of reasons for imposing full term consecutive sentences on all counts is inadequate. We disagree and affirm.
FACTS
S. and appellant began a relationship in December 1982 which ended in September 1987 or 1988 due to appellant’s physical and mental abuse of S. During their relationship, they had a child together, L. In October of 1997, upon L.’s request, appellant moved back but lived in a shed outside S.’s house. The shed had a door with a window and curtain, but was missing the door knob. At that time, S.’s household consisted of herself; her three daughters M., age four, R., age eight, and L., age 13; her two sons, ages three and 15 or 16; S.’s niece T., who was older than any of S.’s children, and S.’s sister R. Appellant moved out of the shed in November of 1998 to live with his girlfriend. By that time, S. was married to her current husband.
Counts 1 thought 6, involving R.
R. was born in 1989 and was 19 years old at the time of trial. She was in the fourth grade when appellant came back to live in the shed behind the house. R. testified that appellant began touching her inappropriately two or three months later. The touchings always began the same way: appellant would take off R.’s shirt and fondle her breasts and vagina. R. tried to get away, but appellant would hold her down on the bed and tell her to “stay in here” and not to say anything.
The first time appellant touched R.’s vagina, in December 1997 or January 1998, he told her to come in his room to play a game called “clubhouse.” Appellant started by touching her breasts and then moved to her vagina. If she tried to move his hand away, he slapped her hand. He rubbed her vagina, under her clothing, and went in and out of her vagina with his hand. R. told appellant to stop and tried to yell, but appellant was not deterred. Appellant told R. she would be taken away from her mother if she said anything.
The following day, appellant again told R. to go into his room. R. was scared and thought she would be in trouble if she did not listen. Appellant fondled her breasts and then took off her pants. He put his hand into her underwear and penetrated her vagina for about five minutes. R. kicked and screamed. In response, appellant covered her mouth with a pillow, held her hands together above her head, took off her pants and inserted his penis into her vagina “a little bit.” R. tried to get appellant off of her, but he continued. When she told appellant that it hurt, he finally stopped. R. put on her clothes and ran out of the shed.
The next day, appellant put his penis in R.’s vagina “the whole way” multiple times. R. was on the bed and appellant on top of her. He covered her face as she screamed and held her hands above her head. He told R. that if she said anything, she was going to get into trouble and be taken from her mother, which frightened her.
Approximately one and one-half months after appellant first began touching R., M., then aged four, walked into the shed. R.’s shirt was up and her pants unbuckled and appellant was fondling R.’s breasts and holding her hands over her head. When M. came in, R. was able to pull her shirt down and run out of the room. But she was afraid that M. was going to say something and she would be taken from her mother.
Appellant had a recliner chair and big mirror in his room. One time appellant told R. to sit in the chair with her pants down and legs open. Appellant then positioned the mirror and told R. to watch as he put his penis into her vagina. R. complied. If she didn’t, appellant pulled her hair or slapped her and grabbed her face to make her look.
R. testified that the abuse continued “pretty much every single day” for one to one and a half years until appellant moved out. During that time, R.’s mother worked a lot and R.’s aunt, who was home, did not know what was going on. On R.’s mother’s days off, appellant would “find a way” to take her into the shed. Appellant referred to the shed as the “clubhouse” and while he assaulted R., he would call her by a silly rhyming nickname (R B) he made up.
R. was 13 years old the last time she saw appellant in the summer of 2002. At that time, S., her husband A., and daughters R. and L. drove to appellant’s home to drop off L. for a visit. Appellant was living with his girlfriend Cheryl Garcia at the time. When appellant first greeted them, A. heard appellant ask if “R B” would be spending the night. A. thought this nickname was odd and did not allow R. to stay.
During the visit, appellant asked R. if she had “‘told anyone.’” She said no, and appellant said, “‘Good. Don’t tell anybody.’” S. overheard this conversation, but when she asked R. about it later, R. would not tell her what appellant meant.
Garcia, appellant’s girlfriend, remembered the visit because appellant referred to R.’s breasts and said, “She’s buddin.” Garcia also testified that appellant, on more than one occasion, referred to her as “R B” during sexual intercourse, and he would say things like “‘[R B] is so sweet. So juicy, ’” but he refused to explain the remarks when asked about it.
At one point R. told her older cousin T. what appellant had done to her. But R. did not tell an adult about what had happened until she turned 18 and was living out of the house. In late July or early August of 2007, R. told her mother before going to the police. She did not say anything until she was 18 because she did not know whether she or her siblings would be taken from her mother.
As part of the police investigation, R., who lived in Las Vegas at the time, agreed to call appellant while a Las Vegas police detective, John Baltas, listened and took notes. After some initial small talk, R. told appellant she was having issues and needed to see a counselor, but she was afraid she would tell the counselor about the sexual behavior between the two of them. Appellant was startled and denied the allegations and told R. she had him confused with someone else. When R. said that it happened when she was seven years old, appellant said, “‘No, you were 12.’” When R. accused appellant of putting his “dick” in her “cooch” and wanting to watch it in the mirror, appellant initially denied it, but then said it was R. who initiated the contact. R. asked, “‘How could you do that?’” and appellant eventually apologized repeatedly-five or six different times-and admitted some sex acts. He talked about going into the shower with R. and that she took her clothes off, that they did some sex acts, but no sexual intercourse. When R. asked what the two of them did sexually, appellant said everything but intercourse. Appellant again said that R. was the one to initiate the contact and that she had approached him.
According to Detective Baltas, under Nevada law, a person cannot be recorded without the person’s knowledge, so the officer did not record the conversation but took notes.
Appellant was subsequently arrested and interrogated by Detective Rodney Klassen. During the interview, which was recorded and played in part for the jury, appellant said that he felt like he was the victim and that he could not believe what R. was doing at age 11 or 12.
The portion of the interrogation that was played for the jury was limited to statements made before appellant invoked his right to counsel.
Counts 7 through 9 involving M.
M. was born in 1993 and was 15 years old at the time of trial. She was four years old when appellant lived in the shed.
M. recalled an incident when she walked into the shed and saw R. with her shirt pulled up, pants unbuckled, and appellant on top of her. M. did not say anything and ran out of the room. R. also ran out of the room without saying anything.
Later that same day, appellant told M. she could join their clubhouse, but first she had to sit on his lap. While on his lap, appellant put his hand inside M.’s underwear and touched her private area. M. did not remember if appellant put his hand inside her vagina or if she tried to get away. She did recall that it hurt a little bit at first, but did not hurt after that. Appellant told her that if she said anything, she would “get in trouble.”
Appellant touched M. a total of three times, each time under her underwear. M. thought the second time occurred in appellant’s room. She was scared because she did not know what appellant was doing. She did not remember trying to get away from him. The third time was not close in time to the first two incidents.
M. recalled an incident in the living room of the house when appellant pulled his pants down to his knees and exposed his private parts. On another occasion, appellant showed M. a photograph of “a lady naked in the shower.” M. also recalled that, on one occasion before appellant began touching her, she looked through the hole in appellant’s door and appellant threw warm coffee in her face. She believed R. was in the room at the time.
M. told her mother what had happened after R. revealed what had happened to her. She did not say anything earlier because she thought she would get into trouble.
The defense
Ms. Knight, Cheryl Garcia’s daughter, knew all of S.’s children and often spent the night at S.’s house while appellant was living in the shed. Knight never saw anything unusual when she was there and never saw appellant alone with the girls.
The defense called as its own witness Detective Klassen, who admitted that he never tried to locate any medical or school records for R. or M., and he did not interview any neighbors to determine what they might have heard. Klassen explained that the homes were in a farm area, as opposed to a close quarter neighborhood, and he did not think it was possible for the neighbors to have heard anything.
DISCUSSION
1. Admission of evidence pursuant to Evidence Code section 1108
Prior to trial, the People moved to admit evidence of appellant’s prior uncharged sexual conduct with S.’s niece, T., pursuant to Evidence Code section 1108. The trial court ruled that the evidence was admissible “with an appropriate jury instruction to provide the jury on the way they use that evidence.”
Subsequently, during trial, T., who was born in 1981 and was 27 years old at the time of trial, testified that, when she was five, she visited appellant and S., who were in a relationship at the time. T. stayed for a week and slept in L.’s room. On three occasions during that week, appellant woke T. in the middle of the night, took her into the living room, and forced her to put her hand on his penis and stroke it a couple of times. On the fourth occasion, appellant made T. put his penis in her mouth.
On the first two occasions, appellant told T. that if she said anything, he would kill her mother, and T. would be forced to live with him. T. was scared and never told anyone what happened.
In 2003, when T. was living with S. and her cousins, she told R. that appellant molested her when she was five. R., in turn, told T. that appellant molested her when she was eight. Neither went into detail. R. was very scared and anxious and T. promised not to tell anyone what R. had revealed.
T. also recalled, for the first time at trial, that one time when she babysat at S.’s house, she saw M. in appellant’s room in the shed. When she told her to get out of there, M. came out crying and ran into the house. T. testified that R. was often in appellant’s room.
Appellant now contends the trial court abused its discretion in allowing admission of the prior incidents because they were dissimilar to the charged incident, were too remote in time, and did not result in convictions. Appellant argues these factors increased the likelihood of confusing the jury and having it punish him for the prior misconduct. He also contends the error deprived him of a fair trial and due process of law under the United States Constitution. We disagree.
Evidence Code section 1101 provides, in general, that “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” An exception to this rule is created in section 1108, subdivision (a), which states, “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.”
Evidence Code section 352, in turn, states 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.” “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.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) A trial court’s exercise of discretion under section 352 “‘must 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, supra, at p. 1124.)
Our Supreme Court in People v. Falsetta (1999) 21 Cal.4th 903 explained that the purpose of Evidence Code section 1108 is to
“‘“[p]ermit[] courts to admit such evidence on a common sense basis-without a precondition of finding a ‘non-character’ purpose for which it is relevant-and [to permit] rational assessment by juries of evidence so admitted. This includes consideration of other sexual offenses as evidence of the defendant’s disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense.”’ [Citations.]” (Falsetta, at p. 912.)
Thus,
“trial courts may no longer deem ‘propensity’ evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (People v. Falsetta, supra, 21 Cal.4th at pp. 916-917.)
In People v. Harris (1998) 60 Cal.App.4th 727, the court set out factors to be weighed in considering whether to exclude Evidence Code section 1108 evidence under section 352: the inflammatory nature of the evidence, the probability of confusion, remoteness, consumption of time, and the probative value of the evidence. (Harris, at pp. 737-741.) Appellant urges that several of these criteria demonstrate it was an abuse of discretion to permit introduction of the offenses against T. Specifically, he argues the uncharged offenses were not similar to the conduct involved in the current charges and too remote in time to be probative of whether appellant had a propensity to commit the charged acts. He also claims the prior offense evidence had a substantial prejudicial impact on the trial of the current offenses.
Appellant first takes issue with the trial court’s finding that the current and prior offenses involved a high degree of similarity. During the hearing on the motion, the trial court agreed with the prosecutor’s argument that the evidence of prior acts “show[ed] a man that is sexually aroused by five-year-old little girls.” Appellant dismisses this similarity, arguing there was no evidence that appellant had R. or M. touch his penis or that he had either of them orally copulate him. He also notes that none of the acts involving R. or M. occurred at night, as did the allegations made by T.
However, “[t]he charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108.” (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41.) All of the acts described by T., R., and M. were “sexual offenses” within the meaning of section 1108, subdivision (d)(1)(A) and (d)(1)(F). “‘“Many sex offenders are not ‘specialists[’], and commit a variety of offenses which differ in specific character.”’ [Citation.]” (People v. Soto (1998) 64 Cal.App.4th 966, 984.)
Moreover, both the charged and uncharged offenses occurred while appellant was living in, or in the curtilage of, the home where he and the children were staying; he threatened each of the victims with harm if they said anything; and he engaged in the conduct more than once with each victim.
Appellant next takes issue with the 12-year gap between the commission of the alleged acts involving T. and the current offenses, as well as the 21-year delay in reporting the prior offenses. During the hearing on the motion, the trial court stated that it was not overly concerned with the age of the prior acts.
While it is true that “a substantial gap between the prior offenses and the charged offenses means that it is less likely that the defendant had the propensity to commit the charged offenses[, ] … significant similarities between the prior and the charged offenses may ‘balance[] out the remoteness.’ [Citation.] Put differently, if the prior offenses are very similar in nature to the charged offenses, the prior offenses have greater probative value in proving propensity to commit the charged offenses.” (People v. Branch (2001) 91 Cal.App.4th 274, 285.)
In People v. Branch, the remoteness of the 30-year gap was balanced out by the similarities in the charged and uncharged offenses: The charged offense involved a 12-year-old step-great-granddaughter and the prior offenses involved a 12-year-old stepdaughter. Both offenses occurred while the girls were staying in the defendant’s home, and in both situations the defendant falsely told the victims’ caretaker the girls had done something wrong in an attempt to shield himself from being found out. (People v. Branch, supra, 91 Cal.App.4th at pp. 284-285.) And in People v. Soto, supra, 64 Cal.App.4th 966, the remoteness was balanced out where the uncharged and charged offenses, occurring 30 and 22 years earlier, respectively, all involved young female relatives alone in the defendant’s home. He fondled each of them with hands and tongue, fondled and digitally penetrated their vaginal areas, and he engaged in the conduct on more than one occasion with each victim. (Id. at pp. 969-970, 977-978, 991.)
Appellant contends that, contrary to Branch and Soto, his case is more akin to People v. Harris, in which the court found that the prior offense, committed 23 years earlier, was too remote to be relevant. We disagree. In Harris, the defendant was a male mental health nurse accused of six counts of sexually licking and fondling two female patients, one of whom he had dated. (People v. Harris, supra, 60 Cal.App.4th at pp. 730-732, 738.) The prosecution was allowed to introduce evidence of a 23-year-old incident for which the defendant had been convicted of first degree burglary with infliction of great bodily harm. At least three witnesses testified about the incident in which a young female was found lying unconscious on the floor, naked from the waist down, with her legs spread apart and blood on her vagina and mouth. She had been beaten severely about her head and face. The defendant was found hiding nearby with blood on his shorts, on the inside of his thighs, and on his penis. (Id. at pp. 733-735.) The Harris court found the introduction of this evidence “inflammatory in the extreme” and concluded the trial court abused its discretion in admitting the evidence. (Id. at p. 738.) The court also found that the prior incident was too remote to be relevant, especially in light of the fact that the defendant engaged in no intervening criminal conduct. (Id. at p. 739.) “Although there is no bright-line rule, 23 years is a long time.…” (Ibid.)
Here, the charged incidents occurred in 1997 and 1998, and the uncharged incidents in 1986, 11 or 12 years apart. Any remoteness was balanced out by the similarities that each act involved a young female victim of a similar age; all of the victims were related to appellant’s former girlfriend; appellant threatened each while engaged in the lewd conduct; and he carried out the acts while staying with the families and despite the fact that there were other family members nearby.
Appellant next argues that the allegations of sexual misconduct occurring 21 years ago had very little probative value and they were just that, allegations as opposed to convictions. According to appellant, this prejudiced him as it posed a danger that the jury was likely tempted to punish him for the prior conduct or allow it to bear too strongly on the present charges. We disagree.
“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. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638.)
“‘… In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction.…’ [Citation.]” (People v. Branch, supra, 91 Cal.App.4th at p. 286.)
As explained in People v. Ewoldt (1994) 7 Cal.4th 380, our Supreme Court deems it important, in evaluating evidence of prior uncharged acts pursuant to Evidence Code section 352, to determine whether “[t]he testimony describing defendant’s uncharged acts … was no stronger and no more inflammatory that the testimony concerning the charged offenses.” (Ewoldt, at p. 405.) Such a circumstance decreases the potential for prejudice. (Ibid.)
Here, without minimizing the sexual abuse suffered by T. over the course of a week, the offenses for which appellant was on trial included evidence of sexual penetration and took place over a period of a year. Therefore, the testimony described by T. was less inflammatory, as a whole, than the charged offenses. In addition, the jury was not told appellant received no punishment for molesting T. (See, e.g., People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [“the fact that this jury was not informed that [the defendant] was never punished for molesting Christina provided the trial court with more reason to admit her testimony than had it been told the truth that he had not”].)
Even if it was error to admit the prior bad acts evidence, that error was harmless in that there is no reasonable probability that a more favorable decision would have been obtained had the evidence not been admitted. (See People v. Mullens (2004) 119 Cal.App.4th 648, 659; People v. Watson (1956) 46 Cal.2d 818, 836; see also People v. Carter (2005) 36 Cal.4th 1114, 1170.) The evidence against appellant was strong. R. testified that appellant repeatedly touched her breasts and fondled and digitally penetrated her vaginal area. She also testified that appellant, on a number of occasions, inserted his penis into her vagina. M. testified similarly that appellant fondled and touched her vaginal area inside her underwear. Appellant, when confronted by R. with the allegations of abuse, corrected her when she stated she was seven at the time and then he apologized repeatedly for various sexual acts. In speaking with an officer, appellant cast blame on R. for the misconduct and described himself as the victim. Several witnesses found appellant’s fascination with R. disconcerting.
Further, as discussed above, the prior sexual offenses were not so heinous that the jury would likely be inflamed by them and want to punish appellant for his past conduct.
We also find appellant’s claim that he was denied a fundamentally fair trial in violation of his constitutional rights under the United States Constitution without merit. Because we have concluded that the trial court did not abuse its discretion in admitting the evidence of prior sexual offenses, it follows that the admission of that evidence did not violate due process. Our review of the evidence also convinces us that, even were we to find error of such constitutional dimension, such error would be harmless even under the Chapman (Chapman v. California (1967) 386 U.S. 18) standard of review.
2. Exclusion of defense evidence
Appellant contends that the trial court erroneously excluded favorable defense evidence relevant to rebut the propensity evidence admitted against him. We disagree.
In his defense, appellant called Detective Klassen, the lead investigator in the case. Defense counsel attempted to question Klassen on whether he did any follow-up investigation to determine where appellant went after the incident. Klassen began to state where appellant “first … moved to, ” but the prosecutor objected on relevance grounds. Defense counsel explained that he had “to be able to probe as to what was done and what wasn’t done, ” but the trial court sustained the objection. Following an unreported bench conference, defense counsel had no further questions.
Later, outside the presence of the jury, the following colloquy occurred:
“[Defense Counsel]: … I just wanted to make a general objection. I thought it was proper, the questioning that I was pursuing with Detective Klassen as far as following up on his-the fact that nothing was turned up in his investigations as far as future witnesses.
“The Court: Well, let’s put that on the record because we had a bench conference which we don’t report, and the objection was made by the People to that line of questioning. I sustained it on the basis of relevancy. And you’ve pointed out your disagreement with the Court’s ruling because you felt you should be entitled to inquire as to what occurred after the date of the offense and the 1108 testimony that was received. Is that correct?
“[Defense Counsel]: That is correct, Your Honor.
“The Court: And tell me why you think it’s relevant.
“[Defense Counsel]: Because propensity goes to any time. I mean, propensity doesn’t just date back to what could have occurred from the date of the incident or before. I mean, propensity could involve anything from the time forward.
“The Court: The Court doesn’t disagree with that. But tell me, when you ask the officer and his response is that he didn’t find anything afterwards, you’re not looking for
“[Defense Counsel]: Not specifically that. He specifically spoke to multiple young ladies who my client lived with who specifically stated, you know, he was around them for a significant period of time, and we’re talking about multiple occasion, and he never did anything inappropriate with them.
“The Court: The Court is competent [sic] that its ruling was correct.…”
In People v. Callahan (1999) 74 Cal.App.4th 356, we stated:
“[P]roof that a person has not behaved [badly] in a similar situation to the situation used to show tendency or propensity is probative to show he/she does not have that tendency.… Such evidence would have probative value in showing that the accused does not have a propensity to engage in certain behavior, thus helping the trier of fact determine that they should not utilize a conclusion of propensity in determining whether the accused committed the act in question.” (Id. at p. 376.)
In Callahan the prosecution presented evidence of the defendant’s commission of a prior uncharged sexual offense pursuant to Evidence Code section 1108. We held that the defendant was entitled to rebut the propensity evidence by introducing evidence of specific instances of good behavior committed under circumstances similar to those surrounding the charged sexual offense. Thus, we concluded, the trial court erred in refusing to allow the defendant’s niece to testify that the defendant had not touched her in an inappropriate manner when she was a child. (People v. Callahan, supra, 74 Cal.App.4th at pp. 374-375, 379.)
Appellant does not now argue that any specific witness was prevented from testifying that she, as a child under similar circumstances, was not abused by appellant. In fact, one such witness, Ms. Knight, Cheryl Garcia’s daughter, who would have been around 14 at the time, did testify that she knew all of S.’s children and often spent the night at S.’s house while appellant was living in the shed. Knight never saw anything unusual when she was there and never saw appellant alone with the girls. Instead, appellant makes the broad claim that Detective Klassen should have been allowed to testify that none of the young women interviewed by him in the investigation of this case ever said she had experienced appellant engaging in sexually inappropriate conduct.
Even assuming that the trial court’s exclusion of Detective Klassen’s testimony was error, it is not reversible error. It is not reasonably probable that, in the absence of the error, a result more favorable to appellant would have been reached. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Callahan, supra, 74 Cal.App.4th at p. 380.) The evidence against appellant was overwhelming. R. and M. both testified that appellant committed similar lewd acts against each of them. R.’s mother, S., overheard appellant ask R. if she told anyone about their “secrets.” And appellant himself admitted, during the pretextual call, to committing “everything” sexual with R. but intercourse. No reasonable juror would have voted to acquit merely because appellant had not molested every child who had been alone with him.
Appellant argues that the trial court’s error should be reviewed not under the Watson standard of prejudice, but under the more stringent “harmless-beyond-a-reasonable-doubt” standard of Chapman v. California, supra, 386 U.S. 18, 24. This argument is without merit because the exclusion of Detective Klassen’s testimony did not rise to the level of federal constitutional error. (See People v. Fudge (1994) 7 Cal.4th 1075, 1103 [Watson standard of review applicable where trial court excluded defense evidence “on a minor or subsidiary point”].) In any event, reversal would not be warranted even under the stricter Chapman standard.
3. Sufficiency of the evidence in counts 8 and 9
Appellant contends there was insufficient evidence to establish that two of the three charges of lewd conduct involving M. (counts 8 and 9) were accomplished by force, violence, duress, menace, or fear of immediate and unlawful bodily injury. We disagree.
In considering the sufficiency of the evidence, we review the record in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 575-578.) If the judgment is supported by substantial evidence-evidence which is reasonable, credible and solid-we will affirm. (People v. Thomas (1992) 2 Cal.4th 489, 514.)
A violation of Penal Code section 288, subdivision (b)(1) occurs when a defendant commits a lewd or lascivious act with a child under the age of 14 by use of force, violence, duress, menace, or fear of immediate bodily injury on the victim or another person. Here, the prosecutor argued the alleged acts were accomplished by duress.
“[D]uress” means “a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.” (People v. Pitmon (1985) 170 Cal.App.3d 38, 50, fn. omitted; accord, People v. Leal (2004) 33 Cal.4th 999, 1004-1005, 1009-1010; People v. Cochran (2002) 103 Cal.App.4th 8, 13; CALCRIM No. 1111.) “‘The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress.’ [Citation.]” (People v. Cochran, supra, at pp. 13-14.) “Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family.” (Id. at p. 14; see also People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319-1320; People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1578-1579.)
Here, appellant was charged with three lewd and lascivious acts against M., who was four years old when appellant lived with her family. In the first instance, after witnessing her older sister R. in appellant’s shed with her shirt pushed up and her pants unbuckled, appellant told M. she could join their clubhouse, but first she had to sit on his lap. While on his lap, appellant put his hand inside M.’s underwear and touched her private area. M. did not remember if appellant put his hand inside her vagina or if she tried to get away. She did recall that it hurt a little bit at first, but did not hurt after that. Appellant told her that if she said anything, she would “get in trouble.”
The second and third instances were similar. Each time appellant touched M., he did so inside her underwear, although the third time was not close in time to the first two incidents. Although she did not remember trying to get away from appellant while the incidents occurred, she was “scared” because she did not know “what he was doing.”
M. did not tell her mother she had been assaulted until after R. revealed what had happened to her. She did not say anything earlier because she thought she would get into trouble.
Appellant contends that there is insufficient evidence to establish duress in the second and third incidents M. testified to. He impliedly acknowledges that telling M. she would get into trouble if she told anyone sufficed as duress in count 7, the first of the three incidents. But he argues it did not suffice in the subsequent two incidents because that threat was not repeated. We disagree.
In People v. Senior (1992) 3 Cal.App.4th 765, the court held that a “simple warning to a child not to report a molestation reasonably implies the child should not otherwise protest or resist the sexual imposition.” (Id. at p. 775.) In People v. Cochran, supra, 103 Cal.App.4th 8, the court explained that “[a] threat to a child of adverse consequences, such as suggesting the child will be breaking up the family or marriage if she reports or fails to acquiesce in the molestation, may constitute a threat of retribution and may be sufficient to establish duress, particularly if the child is young and the defendant is her parent.” (Id. at p. 15.)
In fact, several cases have upheld findings of duress despite the lack of force, violence or threats when the victim was a small child and the defendant was an authority figure. (See People v. Cochran, supra, 103 Cal.App.4th pp. 15-16 [duress was present in father’s molestation of nine-year-old daughter despite absence of violence or threats where the victim was a “vulnerable and isolated child who engaged in sex acts only in response to her father’s parental and physical authority, ” and “[h]er compliance was derived from intimidation and the psychological control he exercised over her and was not the result of freely given consent”]; People v. Pitmon, supra, 170 Cal.App.3d at p. 51 [despite absence of threats or violence, duress was present when eight-year-old boy was molested by adult male stranger because the boy was at “an age at which adults are commonly viewed as authority figures” and because of “the disparity in physical size between an eight-year-old and an adult” which creates “physical vulnerability”]; People v. Veale (2008) 160 Cal.App.4th 40, 47 [although stepfather who molested seven-year-old girl did not use violence or explicit threats, evidence supported a finding of duress based on “the disparity between [the victim] and defendant’s age and size, ” the “defendant’s position of authority in the family, ” and the fact that victim feared defendant and believed he would kill her or her mother if she told about the molestation].) Indeed, Cochran noted that “as a factual matter, when the victim is as young as this victim [i.e., the nine-year-old victim in Cochran ] and is molested by her father in the family home, in all but the rarest cases duress will be present.” (Cochran, supra, at p. 16, fn. 6.)
Here, M. was a mere four years old at the time. Appellant, while not M.’s father, could be seen as an authority figure. He lived on the property where M. lived with her mother and various other relatives, and he was her stepsister L.’s father. Before appellant molested M., she had, on one occasion, witnessed appellant on top of R. with her shirt up and her pants unbuckled. On another occasion, appellant threw warm coffee in M.’s face when she looked through the hole in the door of appellant’s shed. M. believed R. was in the shed with appellant at the time.
Appellant does not argue that his threat that M. would get into trouble if she told anyone was not sufficient evidence that the first act was committed with duress.
We also find that there was sufficient evidence of duress in the remaining two incidents, although M. did not testify that the threat was repeated each time. Contrary to appellant’s suggestion, it was not necessary for him to repeat his threat prior to each incident. (See People v. Senior, supra, 3 Cal.App.4th at pp. 775-776 [duress used in a prior molestation can be evidence supporting duress for later molestations].) The admonition not to say anything or she would get into trouble was strong enough for the very young M. to heed appellant’s words long after he moved out of the area and obviously caused duress at the time the incident occurred.
In our view, a jury reasonably could find that, taken together, these particular acts and the surrounding circumstances created an implied threat that, if M. failed to acquiesce to appellant in the subsequent molestations, it might cause adverse consequences or hardship, i.e., “trouble, ” thereby establishing sufficient evidence of duress.
4. Cumulative error
Appellant contends that the cumulative impact of all of the above errors deprived him of a fair trial. We have either rejected appellant’s claims of error and/or found that any errors, assumed or not, were not prejudicial. Viewed cumulatively, we find that any errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)
5. Did the trial court properly impose consecutive full-term sentences on all counts?
A. Did the trial court impose an unauthorized sentence, pursuant to Penal Code section 667.6, subdivision (d), on counts 2 and 3?
Appellant was sentenced to full, midterm, consecutive sentences of six years each on counts 1, 2, 3, 4, 5, 8, and 9. He contends it is not clear from the record whether the trial court imposed the consecutive sentences under Penal Code section 667.6, subdivision (d), or section 667.6, subdivision (c). Specifically, appellant argues that if the court imposed consecutive sentences on counts 2 and 3 under section 667.6, subdivision (d), the sentence was unauthorized because the events of those two counts constituted a continuous course of sexual conduct and, if the court imposed the consecutive sentences under section 667.6, subdivision (c), its statement of reasons for doing so was inadequate. We disagree.
Both count 2, where appellant touched R.’s vagina with his fingers, and count 3, where appellant touched R.’s vagina with his penis, were alleged to have occurred on or between November 1, 1997, and December 31, 1998. Evidence was presented that appellant committed both of those acts on the second day that he abused R. According to R., appellant touched her breasts and put his hands in her underwear and penetrated her vagina for about five minutes. When she kicked and screamed, appellant covered her mouth with a pillow and held her hands together above her head with one of his hands. He then took off his pants and put his penis inside her vagina. The jury convicted appellant of both offenses.
Penal Code section 667.6, subdivision (d) provides that a sentencing court “shall” impose a “full, separate, and consecutive term” for each enumerated sexual offense committed against a single victim on “separate occasions.” In determining whether multiple sex crimes were committed on “separate occasions, ” the trial court “shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.” (Ibid.) The trial court’s finding that multiple sex crimes occurred on “separate occasions” is a finding based in fact, and, as such, will not be disturbed on appeal where a reviewing court’s review of the record discloses substantial evidence in support of the trial court’s finding. (People v. Plaza (1995) 41 Cal.App.4th 377, 384-385 [trial court’s finding that defendant had the required opportunity to reflect upon his actions “will be upheld unless no reasonable trier of fact could have so concluded”]; People v. Pena (1992) 7 Cal.App.4th 1294, 1314.)
Penal Code section 667.6, subdivision (d) directs when the court must impose a consecutive sentence in sex offense cases. But if subdivision (d) is not applicable, a court always has discretion to impose full-term consecutive sentences for multiple sex convictions under section 667.6, subdivision (c). That section provides, “[i]n lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion.…” When a sentencing court employs subdivision (c), it must state a reason for imposing a consecutive sentence and a separate reason for imposing a full consecutive sentence in lieu of the ordinary one-third the middle term as provided in section 1170.1 (People v. Osband (1996) 13 Cal.4th 622, 729, citing People v. Pock (1993) 19 Cal.App.4th 1263, 1277.) It may, however, use the same reason for both choices. (Osband, at p. 729.) “What is required is an identification of the criteria which justify use of the drastically harsher provisions of section 667.6, subdivision (c). The crucial factor, in our view, is that the record reflect recognition on the part of the trial court that it is making a separate and additional choice in sentencing under section 667.6, subdivision (c).” (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. omitted.)
Here, the probation report recommended, inter alia, full, separate and consecutive sentences for counts 2 and 3, pursuant to Penal Code section 667.6, subdivision (d), as the crimes occurred on “different dates, in separate places, and even involved different victims.” At sentencing, defense counsel submitted on the probation department’s recommendation, stating he believed the recommendation “is in line with what is statutorily required.”
The prosecutor then conceded that, given the evidence presented at trial, a consecutive sentence on count 2 was not mandatory under Penal Code section 667.6, subdivision (d), because counts 2 and 3 occurred “technically on the same occasion, ” but that consecutive sentencing was discretionary under section 667.6, subdivision (c). The prosecutor recommended full consecutive sentences be imposed, “in light of the fact that [appellant] still denies the acts he committed.…” The court then asked the prosecutor whether she agreed that the probation report made reference to California Rules of Court, rule 4.425 “with respect to consecutive versus concurrent sentences on Count 2.” The prosecutor stated that she agreed that all the crimes were separate, but that there was “a little ambiguity in the way that the testimony came out with regards to Count 2” and again asked that the court “use its discretion under [section] 667” in sentencing appellant.
California Rules of Court, rule 4.425 provides: “Criteria affecting the decision to impose consecutive rather than concurrent sentences include: [¶] (a) Criteria relating to crimes [¶] Facts relating to the crimes, including whether or not: [¶] (1) The crimes and their objectives were predominantly independent of each other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. [¶] (b) Other criteria and limitations [¶] Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except: [¶] (1) A fact used to impose the upper term; [¶] (2) A fact used to otherwise enhance the defendant’s prison sentence; and [¶] (3) A fact that is an element of the crime may not be used to impose consecutive sentences.”
The probation report listed as factors affecting concurrent or consecutive sentences the fact that the crimes were predominantly independent of each other (Cal. Rules of Court, rule 4.425(a)(1)); the crimes involved separate acts of violence or threat of violence (Cal. Rules of Court, rule 4.425(a)(2); and the crimes were committed at different times or separate places, “rather than being committed so closely in time and place as to indicate a single period of aberrant behavior” (Cal. Rules of Court, rule 4.425(a)(3)).
The trial court then sentenced appellant to state prison for a 42-year determinate term consisting of full-term consecutive six-year midterms on counts 1, 2, 3, 4, 5, 8, and 9, and a 30 years to life indeterminate term, consisting of two 15 years to life terms on counts 6 and 7. In prefacing its sentence, the court stated:
“The Court has examined the provisions set forth in [California Rules of Court, rule] 4.425 with regards to the criteria affecting concurrent or consecutive sentences, and applying that criteria, the Court intends to order consecutive sentences to all counts.”
Defense counsel did not object to the court’s pronouncement of sentence.
We reject appellant’s argument that the record is unclear whether the court imposed sentence on counts 2 and 3 under Penal Code section 667.6, subdivision (d) or under subdivision (c). Given the prosecutor’s concession that subdivision (d) was inapplicable and her request that the trial court impose consecutive sentences in its discretion under section 667.6, subdivision (c), there is no reasonable basis for this court to conclude that the trial court imposed consecutive sentences on counts 2 and 3 under section 667.6, subdivision (d).
We need not and will not address whether we agree with that concession.
B. Did the trial court err in imposing full-term consecutive sentences on all counts?
Appellant also contends that because its statement of reasons was inadequate, the trial court erred when it imposed full-term consecutive sentences of six years each on counts 1, 2, 3, 4, 5, 8, and 9. However, the waiver doctrine precludes raising claims of sentencing error for the first time on appeal unless the sentence is unauthorized. “[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 356.) Reasons for this rule are both “practical and straightforward.” (Id. at p. 353.) Deficiencies in a trial court’s statement of reasons are easily prevented and corrected when called to the court’s attention, and a forfeiture rule in this context operates to reduce the number of errors committed in the first instance, and to preserve the judicial resources otherwise used to correct them. (Ibid.)
Here, appellant’s sentence was not unauthorized. Full-term consecutive sentences were authorized for counts 2 and 3 under Penal Code section 667.6, subdivision (c), and for counts 1, 4, 5, 8, and 9 under section 667.6, subdivision (d). Appellant has waived any complaint about the manner in which the court imposed the full-term consecutive sentences.
DISPOSITION
We order that the minute order of January 22, 2009, be corrected to eliminate reference to a true finding of Penal Code section 1203.066, subdivision (a)(8) attached to count 5. As corrected, the judgment is affirmed.
WE CONCUR: ARDAIZ, P.J., LEVY, J.