Opinion
B300260
08-10-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA DEVIN ROBINSON, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. SA100137) APPEAL from a judgment of the Superior Court of Los Angeles County, Leslie E. Brown, Judge. Affirmed. Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant Joshua Devin Robinson was convicted of committing a lewd or lascivious act upon 14-year-old Joshua S. in violation of Penal Code section 288, subdivision (c)(1). In March 2019, Joshua was riding the Expo Line (a light rail line operated by the Los Angeles County Metropolitan Transportation Authority) on the way to school. Appellant, dressed in red, boarded the train and sat next to Joshua, even though there were numerous empty seats. Appellant then proceeded to rub and poke Joshua's buttocks for several minutes. Joshua was scared and did not know what to do. After appellant pinched Joshua's buttocks, Joshua left his seat and stood by the door of the train car. When the train reached his stop, he exited and found a security guard, who told him to push a button to summon the police. Joshua did so and the police arrested appellant later that afternoon.
At trial, pursuant to Evidence Code section 1108 (Section 1108), the prosecution called Paige V., who testified that in 2017, she was riding the Expo Line when appellant, dressed in red, boarded the train and sat next to her, even though there were numerous empty seats. Appellant eventually reached over and grabbed her buttocks. She reacted by yelling and pushing him off the seat.
On appeal, appellant argues: (a) the court abused its discretion in permitting Paige to testify because her testimony lacked probative value; (b) the court erred when it instructed the jury that appellant had committed a sexual battery against Paige, without also informing the jury that he had been convicted of battery for that crime; and (c) Section 1108 violates the due process and equal protection clauses of the United States Constitution. We affirm.
STATEMENT OF RELEVANT FACTS
A. The Information
In April 2019, the People filed an information charging appellant with one violation of Penal Code section 288, subdivision (c)(1), which, among other things, makes it a felony to willfully and lewdly commit any lewd or lascivious act upon the body of a child who is 14 or 15 years old, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the person committing the act. Appellant pled not guilty.
Under Penal Code section 288, subdivision (a), "a person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . ." Under subdivision (c)(1), "[a] person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year."
B. Pretrial and Trial Proceedings
1. The People's Motion to Present Evidence of Appellant's Prior Sexual Offenses
In June 2019, the People filed a motion under Evidence Code section 402, seeking to introduce, under Evidence Code section 1108, evidence of four prior sexual offenses appellant committed in 2011, 2017, 2018, and 2019.
Section 1108 provides in relevant part: "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." (Evid. Code, § 1108, subd. (a).) Evidence Code section 352 provides in relevant part: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . ." (Evid. Code, § 352.)
Appellant did not argue Section 1108 was unconstitutional. Instead, he argued evidence of all four incidents should be excluded as unduly prejudicial under Evidence Code section 352 because admission of such evidence would cause the jury to convict appellant based on past offenses, rather than the offense for which he was on trial. Appellant also argued that he was tried and acquitted of the 2019 sexual offense. The court excluded evidence of the 2019 incident, and also excluded evidence of the 2018 incident as potentially inflammatory, because "in that instance defendant rubbed his penis close to the victim, and we don't have that type of behavior in this case." The court ruled the People could introduce evidence of the 2011 and 2017 incidents.
At trial, the People introduced evidence only of the 2017 incident involving Paige V.
2. The Trial
Joshua S. testified that on March 13, 2019, he was 14 years old and riding the Expo Line to school. Only two other people were in the train car with him. At some point, appellant boarded the train, wearing a red shirt, red pants and red shoes. Despite the availability of numerous empty seats, appellant sat next to Joshua. Appellant then reached his hand toward Joshua's back pocket, and Joshua felt appellant's fingers touching his buttocks, rubbing in a circular motion for two to three minutes. Joshua was scared to move. Appellant started breathing heavily. Appellant then reached his hand down the back of Joshua's pants, and Joshua felt appellant's fingers poking him in the buttocks. Joshua also felt appellant's wrist on his back as appellant's hand was down the back of his pants. This lasted for five to seven minutes, and appellant was breathing heavily the entire time. When Joshua felt appellant pinch his buttocks, he stood up and went to stand by the train car door. When the train arrived at his stop, Joshua exited and told a security guard what had happened. The security guard instructed Joshua to press a button to summon the police. Joshua then spoke with two police officers.
Paige V. testified that in October 2017, when she was 21 years old, she was taking the Expo Line to work when appellant boarded the train, wearing a red shirt and red pants. Despite the availability of numerous empty seats, appellant sat next to Paige. Appellant moved closer and closer to her, and eventually reached over and grabbed her buttocks. She yelled and pushed appellant off the seat.
Officer Ikenna Okoro testified that when she arrested appellant in the afternoon of March 13 (the day of the incident), he was wearing all red. The parties stipulated that appellant's birthday was May 2, 1983, making him 35 years old in March 2019.
Penal Code section 288, subdivision (c)(1), applies where the defendant is "at least 10 years older than the child."
Appellant did not testify or present evidence. The jury convicted appellant of violating Penal Code section 288, subdivision (c)(1). The court sentenced him to three years in prison, and he timely appealed.
DISCUSSION
A. The Court Did Not Err in Permitting Paige V. to Testify
Under Section 1108, evidence of a defendant's previous sexual offenses may be admitted "if the evidence is not inadmissible pursuant to Section 352." (Evid. Code, § 1108, subd. (a).) "The court's ruling under section 1108 is subject to review for abuse of discretion." (People v. Loy (2011) 52 Cal.4th 46, 61 (Loy).) "We will not find that a court abuse[d] its discretion in admitting such other sexual acts evidence unless its ruling '"falls outside the bounds of reason." [Citation.]' [Citation.] We will only disturb a trial court's ruling under Evidence Code section 352 where the court has exercised its discretion in a manner that has resulted in a miscarriage of justice." (People v. Miramontes (2010) 189 Cal.App.4th 1085, 1098.) Appellant argues the court abused its discretion in permitting Paige to testify because the probative value of her testimony was substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice.
Our Supreme Court has observed that "the probative value of 'other crimes' evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense." (People v. Falsetta (1999) 21 Cal.4th 903, 917 (Falsetta).) Both incidents here involved appellant, wearing all red, boarding the Expo Line and sitting next to his victims, despite many other empty seats. Both incidents involved appellant using his hand to touch his victims' buttocks. The incident with Paige occurred 17 months before the incident with Joshua. When "the prior offense was not remote in time, and . . . virtually identical in all material respects [to the offense of which the defendant stands accused], its probative value outweigh[s] any possible prejudice its admission might cause." (People v. Regalado (2000) 78 Cal.App.4th 1056, 1059.) The court's ruling did not fall outside the bounds of reason.
B. The Court Did Not Err by Not Instructing the Jury That Appellant Had Been Convicted of a Crime for the Prior Incident
In instructing the jury, the court stated: "The People presented evidence that the defendant committed the crime of sexual battery that was not charged in this case." Appellant contends the court erred by not also informing the jury appellant was convicted of battery for this incident, because "[u]nless a jury is told that the defendant has been formally sanctioned for his previous conduct, it may be sorely tempted to use the current charge to effect punishment or bring about justice it mistakenly believes overdue." Appellant did not ask the court to instruct the jury about his previous conviction. Indeed, he presented no evidence of such conviction.
While our Supreme Court in Falsetta recognized that "the prejudicial impact of the evidence [of other sexual crimes] is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses," appellant cites no authority suggesting it is the court's duty to ensure the jury learns that a defendant's former sexual misconduct resulted in a conviction. (Falsetta, 21 Cal.4th at 917.) The court cannot err by failing to do something it has no duty to do. Moreover, as noted, appellant presented no evidence of his prior conviction; thus, the court had no evidentiary basis for such an instruction.
The only arguably relevant case cited by appellant is People v. Mullens (2004) 119 Cal.App.4th 648, which held that when the People introduced evidence that the defendant had forcibly kissed a minor, the court erred by denying the defendant's request to present evidence that he was acquitted of this crime. (Id. at 653, 662-663.) Appellant made no such request. --------
C. Section 1108 Is Constitutional
Appellant argues Section 1108 violates the due process and equal protection clauses because it permits propensity evidence to be used only in cases involving sexual offenses, and therefore admission of evidence under Section 1108 deprived him of his right to a fair trial. Specifically, he argues the Legislature acted irrationally in permitting propensity evidence to be used only against those accused of sexual offenses because "the incidence of recidivism for sex offenders is lower than that of robbers or murderers, or other types of offenders."
Preliminarily, appellant has forfeited this argument. In opposing the People's motion to introduce the evidence, appellant never challenged the constitutionality of Section 1108, arguing only that the evidence the People intended to present was inadmissible under Evidence Code section 352. An objection on the basis of section 352 fails to preserve constitutional objections. (People v. Benson (1990) 52 Cal.3d 754, 785, 786, fn. 7; see also People v. Vichroy (1999) 76 Cal.App.4th 92, 96-97 [rejecting argument that Section 1108 was unconstitutional "because no objection on that ground was raised below"].)
Moreover, we would reject his challenges were we to consider them. With respect to his due process challenge, he fails to support the contention with argument. "'"Contentions supported neither by argument nor by citation of authority are deemed to be without foundation and to have been abandoned."'" (In re Phoenix H. (2009) 47 Cal.4th 835, 845.) In any case, our Supreme Court has affirmed that Section 1108 "does not offend due process." (Falsetta, 21 Cal.4th at 916-917; Loy, supra, 52 Cal.4th at 60 ["We found [Section 1108] constitutional in People v. Falsetta . . . . We adhere to Falsetta"].)
His equal protection argument would fare no better. It was directly addressed and rejected by People v. Fitch (1997) 55 Cal.App.4th 172, 184-185, which rejected a challenge identical to that belatedly raised by appellant. Fitch was cited approvingly by our Supreme Court throughout Falsetta, and by several other appellate courts. (Falsetta, supra, 21 Cal.4th at 918 [noting Fitch both upheld Section 1108 "against the defendant's constitutional due process and equal protection challenges," and concluded that "the Legislature reasonably could create an exception to the propensity rule for sex offenses, because of their serious nature, and because they are usually committed secretly and result in trials that are largely credibility contests"]; People v. Flores (2009) 176 Cal.App.4th 1171, 1177, fn. 6 ["Fitch's principal holdings that section 1108 did not violate due process and equal protection also remain valid"]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 ["For the reasons best expressed in Fitch, which were endorsed in Falsetta, we reject [defendant]'s equal protection attack on Evidence Code section 1108"].) In Loy, our Supreme Court subsequently affirmed Falsetta's holding that Section 1108 is constitutional. (Loy, supra, 52 Cal.4th at 60.) We are bound by our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["The decisions of this court are binding upon and must be followed by all the state courts of California"]; People v. Johnson (2012) 53 Cal.4th 519, 528 ["The trial court and Court of Appeal are, indeed, bound by decisions of this court"].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J. We concur: WILLHITE, J. CURREY, J.