Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County No. RIF145667, David A. Gunn, Judge.
HALLER, J.
Aubrey Pickering appeals from a judgment convicting him of several sexual offenses based on his molestation of a minor. He argues the judgment must be reversed based on error arising from (1) the admission of uncharged sexual offense evidence under Evidence Code section 1108, and (2) prosecutorial misconduct during closing argument. We reject these contentions of reversible error.
The Attorney General concedes, and we agree, that the trial court imposed an unauthorized sentence based on the One Strike statute applicable to sex offenders (Pen. Code, § 667.61) because a One Strike sex offender allegation was not properly pled and proven. Accordingly, we affirm the judgment as to the conviction, reverse the judgment as to the sentence, and remand the case to the trial court for resentencing.
Subsequent statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Pickering was convicted of six sexual offense counts based on his molestation of Jane Doe (the daughter of a family friend) in 2002 and 2007. The prosecution also presented evidence of his prior sexual offenses committed against another victim (T.S.) beginning in about 1987, and against Doe in another jurisdiction (Las Vegas, Nevada) in 1998.
The victim was identified as Jane Doe in the proceedings below.
Doe, age 18 at the time of trial, testified that the first molestation (the uncharged incident) occurred in July 1998 when she was seven years old and in Las Vegas attending the wedding of Pickering and Kathy (a close friend of Doe's mother). Doe had met Pickering several months earlier; he gave her a lot of attention, hugging her and calling her his little princess. This molestation incident occurred when Doe went into a bedroom by herself to put on her bathing suit to go swimming. Pickering came into the room, closed the door, and asked if she needed help taking off her dress. Doe declined, but Pickering insisted on helping her by unzipping and taking off the dress. Pickering rubbed her chest and shoulders, told her he loved her, kissed her forehead and neck, put his hand under her underwear, and "tickled" her genital area. He then put his fingers inside her vagina, which caused her pain. She asked him to stop, but he kept saying that he was doing this because he loved her. He then grabbed her hand and placed it on his penis over his clothes. After she pulled her hand away, he again put his fingers inside her. By this point she was crying, and he told her to stop crying, that he loved her, and that this is what people do when they love each other. He told her not to tell anyone what happened and that if she did he would kill her and her family. When she started crying even more, he told her to stop crying and everything was going to be fine.
The first charged incidents of molestation occurred four years later, in June 2002, at Pickering and Kathy's home on the night of Kathy's daughter's graduation. Doe, now age 12, begged her mother to let her go swimming in Pickering and Kathy's pool. Her mother initially refused because no one else was out by the pool, but agreed when Pickering offered to go swimming with Doe. Doe was scared but did not say anything. While Doe was playing in the pool, Pickering swam towards her and asked her if she was having fun. He put his hands on her arms and told her he loved her and that she was his little princess. He put his hand inside the bottom part of her bathing suit and then put his fingers inside her vagina and moved them around, causing her pain. He kept repeating that this was their secret and he loved her. She asked him to stop but he would not. He took his hand out, flicked it in the water, and then repeated the digital penetration, which hurt even more than the first penetration. He then repeated this conduct a third time. While doing this, he kissed her neck and upper chest and touched her bottom and chest area with his other hand. By now Doe was crying hard and begging him to stop, but he kept insisting that he loved her and this is what people do when they love each other. He told her this was their secret; he would kill her and her family if she told anyone; and she had to promise not to tell anyone. He wiped her tears and told her everything was going to be okay. She started yelling to her mother that she needed a towel, and Pickering pushed away and started splashing her to make it look like they were playing.
The molestation occurred again in March 2007 when Doe was almost 16 years old. Pickering and Kathy came to Doe's home because Doe's mother was sewing a dress for Kathy. Doe was in her bedroom lying on her side on her bed, with the door open. She was pretending to be asleep because she was scared, anxious, and nauseous about Pickering being there. Pickering came into Doe's room and tickled her eyelashes with his fingers and asked if she was awake. He then began tickling her body, starting at her feet and moving up to her legs, her bottom, her waist, and her shoulder and chest area, including her breast. Doe was squeezing her eyes shut, pretending to be asleep. She heard her brother walk by and tell Pickering to get out of her room because she was sleeping.
Doe testified that she did not tell her mother about the molestation because Pickering told her not to and she was afraid of his threat. When Doe was about 12 or 13 years old, she developed an eating disorder, anxiety, and depression. She was in therapy, and disclosed the molestation to a school counselor in June 2008 when she was 17 years old. She did not initially disclose all the details of the molestation to the counselor and subsequent interviewers because she felt afraid and it was hard to talk about, but eventually she did so.
To support Doe's claims of molestation, T.S. (age 26 at the time of trial) testified about Pickering's prior sexual offenses committed against her beginning in about 1987 when she was about six years old. The molestations occurred during a two-year period while Pickering (who was her mother's boyfriend) lived with her family. On repeated occasions Pickering inserted his fingers into her vagina, including when he was giving her a bath, when he was blow drying her hair while she was sitting on a bed with a towel around her, when he lifted her up and placed her on a washing machine, when the family was sleeping outside in sleeping bags, when she was sleeping in her bed, and when she was in the bathroom. Sometimes while she was in her bed, Pickering would come into her room naked and move his penis around on top of her. On some occasions when she was in her bedroom or in the bathroom, he would lay her down, put lotion on his penis, and put his penis through her legs and rub it on her vagina.
When T.S. started crying, Pickering told her to be quiet and not to cry like a "titty baby"; that her mother would not believe her if she told her; and she would get in trouble with a spanking. The digital penetrations hurt because he pushed his fingers in as far as they could go. T.S. was afraid to tell her mother. However, in 1989 after T.S.'s friend witnessed a molestation incident, T.S. disclosed what was occurring and the police were summoned. Charges were filed and Pickering pleaded guilty to five counts of lewd acts on a child.
Defense
Pickering called numerous witnesses to testify on his behalf, including his wife, his step-daughter (who was 11 when she met him), and other relatives. These witnesses testified that they never observed Pickering engage in any sexually inappropriate behavior, and also presented testimony to undermine the veracity of the dates, locations, and conduct described by Doe when recounting the molestation.
Jury Verdict and Sentence
For the 2002 molestation incident in the swimming pool, the jury convicted Pickering of three counts of aggravated sexual assault on a child based on the digital penetration (counts 1 through 3; §§ 269, subd. (a)(5), 289), and two counts of lewd conduct on a child based on the touching of her breasts, kissing her neck, or other touchings of her body (counts 4 and 5; § 288, subd. (a)). For the 2007 molestation incident in Doe's bedroom, Pickering was convicted of one count of annoying or molesting a child with a prior sex offense conviction (count 6; § 647.6, subd. (c)(2)). Pickering admitted five strike prior convictions, and the court sentenced him to 250 years to life in prison.
Pickering stipulated to a prior sexual offense conviction (§ 288, subd. (b)(1)) for count 6.
DISCUSSION
I. Admission of Uncharged Sexual Offense Evidence
Pickering challenges the admission of evidence of his sexual offenses that were not charged in the current case; i.e., the molestation of Doe in Las Vegas and the molestation of T.S.
Prior to trial, the prosecutor moved to admit the uncharged sexual offense evidence as propensity evidence under Evidence Code section 1108 (Section 1108). Defense counsel conceded that the evidence was admissible under Section 1108. The trial court accepted the defense concession, and also stated that it had examined the evidence under Evidence Code section 352 and concluded it was admissible.
Pickering now argues that (1) Section 1108 violates his right to due process under the federal Constitution, and (2) alternatively, the Section 1108 evidence concerning T.S. should have been excluded under Evidence Code section 352.
A. Constitutionality of Section 1108
When a defendant is charged with a sexual offense, Section 1108 permits admission of the defendant's uncharged sexual offenses to show the defendant's propensity to commit sexual offenses, subject to the trial court's exercise of its discretion to exclude the evidence under Evidence Code section 352. (§ 1108, subd. (a); People v. Falsetta (1999) 21 Cal.4th 903, 907, 917.) As Pickering recognizes, the California Supreme Court has rejected a constitutional due process challenge to Section 1108. (People v. Falsetta, supra, at pp. 916-922.) He presents the constitutional challenge for purposes of preserving further review. We are bound by our high court's ruling, and we reject this constitutional argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
B. Admission under Section 1108
Pickering argues the trial court abused its discretion by admitting the uncharged sexual offense evidence concerning T.S., and that his counsel provided ineffective representation by conceding its admissibility under Section 1108. He contends the evidence should have been excluded under Evidence Code section 352 because it was inflammatory, dissimilar, and remote in time as compared to the charged incidents. We reject these contentions.
Pickering also argues the evidence was not admissible under Evidence Code section 1101 to prove matters apart from propensity. After finding the evidence admissible under Section 1108, the trial court found it unnecessary to rule on the prosecutor's additional contention of admissibility under Evidence Code section 1101, and the jury was not instructed on use of the evidence under Evidence Code section 1101. Given our holding of admissibility under Section 1108 and the manner in which the case was presented to the jury, we need not address Pickering's arguments based on Evidence Code section 1101.
When considering admission of uncharged sexual offense evidence, the trial court must engage in a careful weighing process under Evidence Code section 352 to ensure that the defendant's rights to a fair trial are safeguarded. (People v. Falsetta, supra, 21 Cal.4th at pp. 916-918.) The trial court evaluates the evidence by considering such factors as relevance, remoteness, similarity to the charged offense, and the potential for prejudice. (Id. at p. 917.) A trial court's ruling under Evidence Code section 352 will not be disturbed on appeal unless the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. (People v. Frazier (2001) 89 Cal.App.4th 30, 42.)
Normally counsel's failure to object to admission of evidence forfeits the issue on appeal, and the claim is analyzed solely on grounds of ineffective representation. (See People v. Kelly (1992) 1 Cal.4th 495, 519-520.) Here, however, because the court on its own motion evaluated the Section 1108 evidence under Evidence Code section 352, we will evaluate the merits of the court's ruling.
Pickering argues the evidence of the T.S. incidents should have been excluded based on its dissimilar and inflammatory nature because the misconduct with T.S. (as compared to the charged incidents) occurred repeatedly over a longer period of time and involved additional types of sexual conduct. There is no strict similarity requirement for admission of sexual offense evidence under Section 1108. (See People v. Frazier, supra, 89 Cal.App.4th at pp. 40-41; People v. Soto (1998)64 Cal.App.4th 966, 984, 991.) In any event, the charged and uncharged incidents both involved the highly similar characteristic of digital penetration; i.e., Pickering's molestation of T.S., as with his molestation of Doe, commenced with digital penetration and persisted with this same type of conduct on repeated occasions. The fact that the molestation of T.S. was more ongoing and also progressed to penile-vaginal contact did not decrease the relevancy of the T.S. incidents to show Pickering's tendency to engage in the type of abuse at issue in the current case.
Nor were the incidents involving T.S. so inflammatory when compared to the charged incidents as to require exclusion. Undue prejudice from inflammatory evidence does not refer to the damage to the defense that flows from highly relevant evidence, but rather to evidence that could cause the jury to prejudge the defendant based on extraneous factors. (See People v. Harris (1998) 60 Cal.App.4th 727, 737.) Both the T.S. and Doe incidents subjected vulnerable young girls to molestation that caused physical pain, fear, and emotional trauma. The T.S. incidents were not so qualitatively different from the Doe incidents as to create a danger of jury assessment of the Doe charges based on extraneous factors.
Pickering also contends the T.S. incidents should have been excluded on grounds of remoteness, i.e., the molestation of T.S. ending in 1989 occurred about 9 and 13 years before the 1998 and 2002 molestations of Doe. There is no specific time limitation for uncharged sexual offense evidence, and the passage of a substantial length of time does not necessarily require exclusion of the evidence. (See People v. Branch (2001) 91 Cal.App.4th 274, 284-285; People v. Soto, supra, 64 Cal.App.4th at pp. 991-992.) Further, the courts recognize that when there are substantial similarities between the uncharged and charged misconduct, remoteness lessens in importance as a factor supporting exclusion. (People v. Branch, supra, at p. 285; People v. Pierce (2002) 104 Cal.App.4th 893, 900.)
As stated, contrary to Pickering's assertion the Doe and T.S. incidents were highly similar based on the common conduct of digital penetration of young girls. Further, the remoteness factor was significantly lessened by the fact that Pickering was convicted for his molestation of T.S. and served a prison sentence prior to the first molestation of Doe in 1998. That is, he molested T.S. from about 1987 through 1989; he was convicted in 1990 and sentenced to eight years in prison for the T.S. incidents; he was released from prison in 1994 and discharged from parole in 1997; and he then molested Doe in 1998. Thus, Pickering first molested Doe about four years after his release from prison and about one year after his discharge from parole. The trial court was not required to exclude the T.S. evidence based on remoteness.
The trial court did not abuse its discretion in admitting the evidence of the T.S. sexual offenses. For the same reason, it is not reasonably probable the trial court would have made a different ruling had defense counsel argued for exclusion under Evidence Code section 352; accordingly, Pickering's claim of ineffective representation is unavailing. (See People v. Sapp (2003)31 Cal.4th 240, 263 [ineffective representation claim fails absent showing of reasonable probability of more favorable outcome].)
II. Prosecutorial Misconduct
Pickering asserts the prosecutor engaged in misconduct by referring to matters that were outside the record during closing arguments. He complains about the following statements made by the prosecutor.
"[D]isclosure is a process and not an event.... [¶]... [¶] [Doe] is telling the truth and reluctant to say anything because she is embarrassed and is still living in fear today. [¶] It is completely usual and it is common sense. [¶] And then struggling to get it out, and then finally she gets everything out. It is a process and it just doesn't happen over night." (Italics added.)
"[¶]... [¶]
"[Pickering] wasn't getting help for what he did afterwards. He never got help. They don't change. He didn't change. In fact, he hid who he really was from people [who] loved him the most and when they found out, he lied to them again, about who he really was." (Italics added.)
Pickering argues that the prosecutor in effect presented unsworn testimony as if he were a child sexual abuse expert; i.e., addressing the disclosure process of molested children and whether molesters can and do change. He contends the argument implicitly sought to bolster Doe's credibility and create animosity towards him based on factors that were not part of the evidence. Although his counsel did not object, he asserts the issue should be addressed on appeal because an objection and admonition would not have cured the harm, or, alternatively, his counsel provided ineffective representation by failing to object.
A prosecutor is given wide latitude to vigorously argue the case and may make remarks based on the evidence and reasonable inferences drawn therefrom. (People v. Hill (1998)17 Cal.4th 800, 819.) However, a prosecutor should not refer to facts not in evidence unless they are matters of common knowledge or drawn from common experience. (Id. at pp. 819, 827-828.) When evaluating claims of improper argument to the jury, "the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Samayoa (1997) 15 Cal.4th 795, 841.) To preserve the issue for appellate review, a defendant must object to prosecutorial misconduct and request that the jury be admonished, unless these actions would be futile or ineffective in curing the harm. (People v. Hill, supra, 17 Cal.4th at p. 820.)
Considering the closing arguments in context, there is no reasonable likelihood jurors thought the prosecutor was attempting to present them with expert opinion on the subject of child molestation. As stated, a prosecutor has wide latitude to draw inferences from the evidence and to refer to matters that are drawn from common experience. Although the prosecution may present expert testimony to address the disclosure process of molestation victims, it is also within the realm of common experience that children may be reluctant to disclose sexual experiences because of their embarrassment or fear of repercussions. Consistent with this, Doe testified that she did not initially disclose all the details of the molestation because she felt afraid and it was hard to talk about, and when she spoke about it she felt embarrassed and ashamed. The prosecutor did not commit misconduct by arguing that, as reflected in the nature of Doe's disclosure, disclosure of molestation is a process and the jury should not discredit Doe's claims merely because her disclosure was gradual.
Likewise, the prosecutor did not commit misconduct by arguing that Pickering had not changed his conduct of molesting children. This was an inference directly supported by the evidence that he had molested another victim (T.S.) in the 1980's and then molested Doe in the 1990's and thereafter.
Arguably, the prosecutor's statement that "[t]hey don't change" was overbroad to the extent it referred to molesters as a category rather than to Pickering as an individual. (Italics added.) However, considered in context, there is no reasonable likelihood the jury interpreted the statement as akin to an expert opinion on the subject of the inability of child molesters to change. The statement was brief and couched in an argument that solely addressed whether Pickering had changed.
Moreover, even if the jury did interpret the statement as a reference to molesters in general, the issue is forfeited on appeal because an objection and admonition would have cured the harm. Again, the statement was very short and there was no elaboration on the issue of a molester's ability to change. Further, the prosecutor's argument that Pickering "never got help" after his prior molestation conviction, implicitly suggested a view that some molesters could change.
For the same reasons, Pickering's claim of ineffective representation based on counsel's failure to object fails. It was not unreasonable for counsel to refrain from objecting to the prosecutor's brief statement so as not to draw the jury's attention to the matter. Alternatively, there was no prejudice from the failure to object.
Pickering's challenges to the judgment based on prosecutorial misconduct are unavailing.
III. Sentence
The parties agree the trial court imposed an unauthorized sentence and the matter should be remanded for resentencing. We also agree.
For counts 1 through 4 (three aggravated sexual assault convictions and one lewd act conviction for the offenses in the swimming pool), the trial court imposed four consecutive sentences of 50 years to life. The trial court stayed the sentence for the count 5 lewd act conviction under section 654. For count 6 (annoying or molesting a child with a prior conviction), the court imposed a fifth consecutive sentence of 50 years to life.
The court calculated the 50-years-to-life terms based on (1) a 25-years-to-life sentence under the One Strike provisions for sex offenders (§ 667.61), and (2) a doubling of this term to 50-years-to-life under the strike provisions for recidivist offenders (§ 667, subd. (e)). The parties correctly agree that the section 667.61 One Strike provision applicable to sex offenders cannot be applied in this case because it was not properly pled and proven. The One Strike sex offender statute expressly requires that the allegation be pled and decided by the jury or admitted by the defendant. (Former § 667.61, subd. (i), current subd. (o); People v. Mancebo (2002) 27 Cal.4th 735, 743-745, 749.) The information includes a One Strike allegation applicable to defendants who are convicted of sexual offenses against multiple victims in the present case (former § 667.61, subd. (e)(5), current subd. (e)(4)), whereas the present case involves only one victim. The information contains no language or code reference to the One Strike allegation applicable to a defendant who, like Pickering, has a previous sexual offense conviction, as provided for in section 667.61, subdivision (d)(1). Further, the jury was not instructed, and no verdict was returned, on a One Strike sex offender allegation. Although Pickering admitted a prior sexual offense conviction for purposes of one of the counts (see fn. 3, ante) and for the Three Strike recidivist allegation, he was not provided notice that he could be sentenced under the One Strike sex offender statute based on a prior sexual offense conviction. Accordingly, Pickering may not be sentenced under the One Strike sex offender provisions. (People v. Mancebo, supra, 27 Cal.4th at pp. 747, 752-754; People v. Botello (2010) 183 Cal.App.4th 1014, 1022-1023, 1026-1027.)
The information states that defendant "has been convicted in the present case of committing an offense, to wit: 288, subdivision (b), subsection (1), against more than one victim, within the meaning of Penal Code section 667.61, subdivision (e), subsection (5)."
On remand the court should resentence defendant without use of the One Strike sex offender provisions. There is no dispute that Pickering may properly be sentenced under the section 667, subdivision (e) Three Strike provisions for recidivist offenders.
The parties also discuss several other aspects of the sentence, which are either moot or will be addressed on remand. We need not elaborate on them here.
DISPOSITION
The judgment is affirmed as to the convictions. The judgment is reversed as to the sentence and remanded for resentencing without use of the One Strike sex offender provisions.
WE CONCUR: BENKE, Acting P. J., McDONALD, J.