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People v. Oharran

California Court of Appeals, Third District, Sacramento
Mar 28, 2008
No. C054031 (Cal. Ct. App. Mar. 28, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. TROY LEONARD OHARRAN, Defendant and Appellant. C054031 California Court of Appeal, Third District, Sacramento March 28, 2008

NOT TO BE PUBLISHED

Super. Ct. No. 06F00282

RAYE, Acting P.J.

A jury convicted defendant Troy Leonard Oharran of felony indecent exposure (Pen. Code, § 314, subd. (1)), and thereafter the court found he had served a prior prison term (§ 667.5, subd. (b)). He was sentenced to state prison for three years.

All further statutory references are to the Penal Code unless otherwise indicated.

On appeal, defendant contends (1) the trial court abused its discretion when it admitted evidence of prior sexual offenses, (2) the prosecutor committed prejudicial misconduct when he misstated the elements of the charge in front of the jury, and (3) the trial court erred when it refused to instruct the jury on the significance of his lack of flight. We reject the contentions.

FACTS

Prosecution’s Case

During the afternoon of June 30, 2005, Harinder Takhar was working at his party store in a shopping complex when he saw defendant, who was in back of an AM/PM store, remove his pants and stand there in his boxer shorts. As people walked by, defendant would drop his shorts and wiggle his penis at them. Three women exited the pizza parlor next door; one of them was Leysa Stepanchuk, who worked at the parlor. Takhar saw defendant wave his penis at them, but they simply got into a car and drove off.

After defendant flashed the three women from the pizza parlor, Takhar called the sheriff’s department. Deputies arrived within 15 minutes and took defendant into custody. Defendant told one of the deputies that he had done nothing but change from “sweats” into shorts.

The trial court admitted into evidence certified copies of documents related to defendant’s four prior convictions, each obtained by plea, for violation of section 314, subd. (1) -- March 1995 (People’s exhibit No. 11), August 1995 (People’s exhibit No. 12), November 1998 (People’s exhibit No. 13), and January 2001 (People’s exhibit No. 14).

Defense Case

Regarding defendant’s January 2001 conviction for indecent exposure, Officer Edward Leighton testified that in 2000 he was questioning defendant in an interview room at the Auburn Police Department on a matter unrelated to indecent exposure and briefly left the room to obtain booking papers. When Leighton returned he saw, through a one-way mirror, defendant sitting in a chair with his pants undone, masturbating. Leighton entered the room and told defendant to stop; however, defendant denied he was doing anything. It was stipulated that defendant was factually innocent of the unrelated matter he was being questioned about.

Joe Cress, a criminal defense attorney, testified that there may be reasons other than factual guilt, such as a plea bargain to avoid a risk of being convicted of greater or more numerous offenses, that would cause a defendant to plead to a criminal offense.

Leysa Stepanchuk testified that in June 2005 she was working at Red Runner’s Pizza, which is adjacent to Takhar’s party store. On the day in question, she walked out of the pizza parlor with either her sister or a girlfriend to take a break but did not see anyone expose himself. When she returned from her break she was told that Takhar had seen someone exposing himself to her. She went next door and told Takhar that she had not seen anything.

Takhar was recalled and confirmed that Stepanchuk was the woman he had seen walk out and get “flashed” by defendant; however, he claimed he never spoke to her about the incident.

DISCUSSION

I

Defendant contends the trial court’s admission, over his undue prejudice objection (Evid. Code, § 352), of documentary evidence of the prior convictions and the details of his masturbating in the interview room was an abuse of discretion that denied him due process and a fair trial. We disagree.

In prosecutions for specified sexual offenses, including violations of Penal Code section 314, Evidence Code section 1108 makes admissible evidence of the defendant’s commission of another sexual offense unless the evidence is rendered inadmissible by Evidence Code section 352. Once admitted, Evidence Code section 1108 permits the evidence to be used to show propensity to commit such offenses. (People v. Falsetta (1999) 21 Cal.4th 903, 907 (Falsetta).)

Evidence Code section 1108 provides, in pertinent part: “(a) 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. [¶] . . . [¶] (c) This section shall not be construed to limit the admission or consideration of evidence under any other section of this code. [¶] (d) As used in this section, the following definitions shall apply: [¶] (1) ‘Sexual offense’ means a crime under the law of a state or of the United States that involved any of the following: [¶] (A) Any conduct proscribed by Section . . . 314 . . . of the Penal Code.”

Defendant argues that the admission of the challenged evidence should have been excluded by the court under Evidence Code section 352 because the acts were of minimal relevance due to staleness, their circumstances were not shown to have been similar to those of the present case, and the pleas were possibly based on considerations other than factual guilt. The argument is not persuasive.

Defendant claims the two 1995 incidents were stale because they occurred 10 years before the instant case. While staleness, that is, the nearness or remoteness in time of the prior offense compared to the charged offense, is a factor to be considered in assessing relevance (Falsetta, supra, 21 Cal.4th at p. 917), staleness is not necessarily established by temporal considerations alone. This is so because a defendant’s failure to lead a legally blameless life between the time of the prior conviction and the present charge “undermines any claim of remoteness.” (In re Hyde (2007) 154 Cal.App.4th 1200, 1216-1217.)

In making his remoteness argument, defendant simply fails to take into account that his two 1995 convictions were followed by two additional convictions, one in 1998 and one in 2001, thereby showing that he had not led a legally blameless life following the 1995 convictions; hence, his 1995 convictions were not remote.

Defendant argues his prior convictions lacked probative value because they “were not particularly similar to each other” in that some involved his “exposing himself in front of police officers while in custody” and the “only similarity . . . [to] the current case is they all involved acts of alleged indecent exposure . . . .” The fact that the prior convictions were not committed in the precise manner of the present one is of no moment. Each offense was for a violation of section 314, subdivision (1), which required that he willfully and lewdly expose his genitalia where there were “present other persons to be offended or annoyed thereby . . . .”

We likewise reject defendant’s argument that the prior convictions should have been excluded because of the possibility that his pleas lacked a factual basis but were instead the product of settlement negotiations aimed at reducing his sentence exposure. That defendant had a predisposition to indecently expose himself was highly relevant because the only witness to the instant charge was Takhar, and his testimony was placed in doubt by that of Stepanchuk. Nor was there anything particularly inflammatory about the prior sexual offenses. And finally, the trial court never precluded defendant from presenting evidence or arguing that his pleas were not factually based.

II

Defendant contends the prosecutor committed prejudicial misconduct when during closing argument he misstated the law regarding the charge of indecent exposure. We reject the contention.

Section 314, subdivision (1) provides: “Every person who willfully and lewdly . . . [¶] 1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby . . . .” (Italics added.)

CALCRIM No. 1160 states, in part: “To prove that the defendant is guilty of [a violation of section 314, subdivision (1)], the People must prove that: [¶] 1. The defendant willfully exposed (his/her) genitals in the presence of another person or persons who might be offended or annoyed by the defendant’s actions . . . .” (Italics added.)

Further references to CALCRIM are to the Judicial Council of California, Criminal Jury Instructions (2006-2007).

During discussions on instructions, the trial court acceded to defense counsel’s request that the court modify CALCRIM No. 1160 to more closely track the wording of section 314, subdivision (1) by substituting the statutory language “to be” for the CALCRIM No. 1160 language “who might be.”

Thus, as modified by the court and given to the jury, CALCRIM No. 1160 read: “To prove [a violation of section 314, subdivision (1)], the People must prove . . . the defendant willfully exposed his genitals in any public place or in any place where there are present other persons to be offended . . . .” (Italics added.)

During closing argument, the prosecutor put before the jury an exhibit showing CALJIC No. 1160 in its unmodified form, i.e., bearing the language “who might be” instead of “to be” as the court had directed. Defense counsel immediately objected, claiming the instruction was “inaccurate.”

While still before the jury, the court agreed with defense counsel that the prosecutor had erred by not using the words of the instruction as given by the court and that the errant part of the prosecutor’s exhibit “ought to be eliminated to avoid potential confusion.” The prosecutor thereafter read the instruction to the jury as given by the court.

After the prosecutor concluded his opening argument, and out of the jury’s presence, defense counsel stated how upset he was over the prosecutor’s conduct and requested that the court inform the jurors that the prosecutor’s instruction was not the law and that the law was as the court had instructed them.

The court refused counsel’s request because defendant had suffered no harm in that any difference in the wording was “very minimal” and that a “strong argument” could be made that there was “no difference between them.” Additionally, the court noted that it had already “criticized and corrected” the prosecutor for the error in front of the jury.

Defendant argues that the prosecutor’s display to the jury of the instruction using “might be offended” rather than “to be offended” constituted “an incomplete and misleading statement of the law.” Defendant claims he was prejudiced because the “prosecutor’s misstatement of law” lessened the prosecution’s burden of proving the charge beyond a reasonable doubt. This is so, he continues, because “in all likelihood, the jury convicted [him] without properly considering . . . whether the alleged indecent exposure took place in front of persons ‘to be offended’ as opposed to ‘might be offended.’”

Defendant’s argument is wanting. Like the trial court, we fail to see any substantive distinction between the two phrases and defendant has not shown any such distinction. Thus, while the prosecutor acted improperly by not following the court’s modification to the instruction, there being no legal distinction between the phrases the prosecution’s burden was not lightened and defendant could not have suffered any harm.

Even assuming the jurors could have found a legal distinction between the court’s instruction and the version referred to by the prosecutor, there is no reasonable possibility the jurors would have followed the prosecutor’s version of CALCRIM No. 1160 rather than the version given by the court. Not only did the court correct the prosecutor in front of the jury and state that the prosecutor’s version should be eliminated, but the court provided its written instructions to the jury, which included the court’s modified version of CALCRIM No. 1160, along with the instruction that the jurors “must follow the law as I explain it to you, even if you disagree with it.”

As with any instance of asserted misconduct, we presume the jury followed the trial court’s admonition to disregard the prosecutor’s impropriety. (People v. Osband (1996) 13 Cal.4th 622, 718-719.) Since there is nothing in the record to rebut this presumption, we reject defendant’s speculative contention.

III

Defendant contends that because he was arrested at the shopping complex after allegedly exposing himself various times over a 30-minute period but without attempting to flee, he was entitled, under due process principles, to an instruction on the significance of lack of flight; the court’s refusal to give his proffered instruction was error. We reject the claim.

Defendant relies on Wardius v. Oregon (1973) 412 U.S. 470 [37 L.Ed.2d 82], which held that it was a violation of due process for an Oregon statute to require defendants to give notice and details of their alibi defenses but not to impose reciprocal obligations on the prosecution regarding its witnesses. (Id. at pp. 472, 475.) The reasoning in Wardius was essentially that “in the absence of a strong showing of state interests to the contrary, discovery must be a two-way street.” (Id. at p. 475.)

Defendant attempts to compare his circumstances to those in Wardius, arguing that since section 1127c requires an instruction on flight as demonstrating a consciousness of guilt, due process reciprocity similarly requires an instruction on absence of flight as demonstrating a consciousness of innocence. The constitutional analogy is unavailing to defendant since it was rejected by our state Supreme Court in People v. Staten (2000) 24 Cal.4th 434, 459 (Staten), wherein the court concluded that the existence of section 1127c did not require reciprocal rights for defendants regarding absence of flight, and that this conclusion “forecloses any federal or state constitutional challenge based on due process.” (See also People v. Williams (1997) 55 Cal.App.4th 648, 651-652 (Williams) [rejecting claim that pursuant to the reasoning of Wardius due process required instruction on absence of flight because section 1127c required instruction on flight].)

Section 1127c provides: “In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. [¶] No further instruction on the subject of flight need be given.”

Defendant attempts to evade Staten’s holding, noting that holding was based on the analysis in People v. Green (1980) 27 Cal.3d 1 (Green), which was based upon an Evidence Code section 352 analysis and found no error in the trial court’s refusal to give the defendant’s requested absence of flight instruction. The attempt fails.

It is true that Green’s holding was based upon an Evidence Code section 352 analysis, not a reciprocal rights due process argument as is the case here. (Green, supra, 27 Cal.3d at pp. 36-39.) Nevertheless, the Staten court not only adopted the reasoning of Green but also cited Williams as the basis for its rejection of defendant’s due process argument.

DISPOSITION

The judgment is affirmed.

We concur: HULL, J., CANTIL-SAKAUYE, J.

Evidence Code section 352 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.”


Summaries of

People v. Oharran

California Court of Appeals, Third District, Sacramento
Mar 28, 2008
No. C054031 (Cal. Ct. App. Mar. 28, 2008)
Case details for

People v. Oharran

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. TROY LEONARD OHARRAN, Defendant…

Court:California Court of Appeals, Third District, Sacramento

Date published: Mar 28, 2008

Citations

No. C054031 (Cal. Ct. App. Mar. 28, 2008)