Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F10601
NICHOLSON, J.
A jury convicted defendant William Arthur Shoffner of forcible oral copulation of L. (Pen. Code, § 288a, subd. (c)(2); undesignated section references are to this code; count 1), lewd act upon a child (L.) (§ 288, subd. (c)(1); count 3), possession of marijuana for sale (Health & Saf. Code, § 11359; count 11), maintaining a place for selling or using a controlled substance, to wit, marijuana (Health & Saf. Code, § 11366; count 12), two counts of annoying or molesting a child under the age of 18 years with a prior conviction (§ 647.6, subd. (c)(1); count 4 (B.) and count 5 (J.)), five counts of furnishing marijuana to a minor (Health & Saf. Code, § 11361, subd. (b); counts 6 (L.), 7 (B.), 8 (J.), 9 (A.) and 10 (K.)), and five counts of furnishing liquor to a minor (Bus. & Prof. Code, § 25658, subd. (a); counts 13 through 17).
During trial, the parties agreed to the dismissal of count 2 which charged oral copulation of a person under the age of 16 years and to refer to it as a lesser related offense to count 1.
Sentenced to state prison for an aggregate term of 18 years eight months, defendant appeals, contending (1) the trial court erroneously admitted evidence of defendant’s prior sexual misconduct and (2) the trial court erroneously refused to stay punishment on counts 3 through 17. We affirm the judgment.
FACTS
L. attended school with defendant’s daughter, A. L. also knew defendant’s son, K. L. and A. were best friends. When L. was in eighth grade, L. and other friends went to defendant’s house almost every weekend to drink alcohol supplied or purchased for them by defendant and to smoke marijuana supplied by defendant. Defendant joined them in drinking alcohol and smoking marijuana as did defendant’s children, A. and K. L. estimated that she smoked marijuana at defendant’s home 100 times and drank alcohol 10 to 20 times.
One weekend around her 14th birthday in December 2005, L. had been drinking alcohol and smoking marijuana at defendant’s house. L. got drunk and threw up on herself. Defendant took L. to his bedroom, closed the door, removed L.’s clothes, put her in the bathtub and touched her vagina with his finger, saying, “You wish this was T[.], don’t you?” T. was a boy who often visited defendant’s home to drink and smoke marijuana. L. got out of the bathtub and tried to leave but defendant pushed her on the bed and “started fingering [her].” He then orally copulated her and, after a few minutes, got up and began masturbating. He kissed her on the lips, telling her that he loved her. L. tried to leave again but defendant grabbed her and took her to the bathroom where he washed off her stomach. He then let her go. After the incident, L. continued to go to defendant’s home.
J. was also friends with A. and K. and went to defendant’s house to drink alcohol and smoke marijuana. J. went almost every day. Over a six- to nine-month period of time, defendant provided alcohol to J. Defendant took J.’s money to buy her vodka and beer. Defendant sold marijuana to her too. For six months, J. bought marijuana from defendant which, for the most part, she smoked in his house.
In April 2006, several months before J.’s 14th birthday, defendant put his hand down the front of her pants towards her vagina when he gave her a massage. J. went to another room to lie down. A man followed her. J. believed it could have been defendant. She felt rubbing on her upper thigh and when she turned over, the man left.
On another occasion, after smoking marijuana, J. and her friend fell asleep on defendant’s sofa. When she woke up, defendant was rubbing her leg. He said, “‘Let it happen, it will be okay.’” J. woke her friend up and defendant stopped.
Fourteen-year-old B. was also friends with A. and K. and went to defendant’s house to drink alcohol and smoke marijuana with defendant. B. visited defendant’s house almost daily and sometimes spent the night. Over several months towards the end of B.’s eighth-grade year, defendant provided alcohol and marijuana to her on three to four occasions and sold marijuana to her 15 to 16 times. She smoked marijuana at defendant’s house about 100 times. She drank alcohol at defendant’s house 20 to 25 times. With the exception of three to four times when B. bought the alcohol from defendant, other people purchased the alcohol.
One time, B. asked defendant for a piece of gum. Defendant responded in a sexual tone, “‘What are you going to do for me?’” A couple of times, defendant ran his fingers through B.’s hair. Feeling uncomfortable, she would pull away. One time, defendant put his hand on her knee. Feeling uncomfortable, B. got up and left. Several times, defendant rubbed her back. She moved away from him.
A. testified that defendant, her father, sometimes allowed her, her brother K. and others to help themselves to alcohol in the refrigerator. A. denied that defendant ever provided her with marijuana. When interviewed the day defendant was arrested, A. told Officer Brian Barner that she got the marijuana found in her room from defendant. She denied smoking marijuana. She had previously told the officer she smoked marijuana once a week using the marijuana defendant supplied. She admitted K. smoked marijuana in the house as did defendant.
K. testified that defendant, his father, sometimes provided him with alcohol and bought alcohol for his friends. K. claimed defendant gave him marijuana less than five times. When interviewed by Officer Barner, K. stated that he obtained the marijuana found in his room from defendant and that defendant had been giving him marijuana for about a year.
On November 30, 2006, a search of defendant’s residence revealed approximately 25 grams of marijuana, money in individual envelopes, scales, packaging material and other drug paraphernalia.
The prosecution introduced prior sexual misconduct evidence. In February 1997, defendant asked S., his then 12-year-old daughter, to come into his bedroom. S. entered and found defendant standing naked next to the door which he shut and locked behind her. She sat on his bed next to him and he pushed her back on the bed and unbuttoned her pants. The phone rang and when defendant answered it, S. ran to the bathroom. Defendant got off the phone and asked what she was doing. She told him she was using the toilet which was a lie and when he returned to his room she ran out the front door. She ran to a friend’s house where she recounted what had happened. S. also recounted to officers what had happened. The parties stipulated that defendant was convicted of violating section 647.6, subdivision (a).
DISCUSSION
I
Defendant contends the trial court erroneously admitted the evidence of his prior sexual offense against his daughter. We find no error.
Background
The prosecutor moved in limine to introduce the prior sexual offense pursuant to Evidence Code section 1101, subdivision (b), to show intent, absence of mistake and plan or scheme, as well as pursuant to Evidence Code section 1108, to show propensity. Defendant opposed the motion. In determining that the evidence was admissible, the trial court noted the nine-year lapse between the prior and the current offenses but found the similarities between the prior and the current offenses more probative than prejudicial. The court also noted that defendant had been convicted for the prior offense. The court also determined that defendant continued to engage in criminal conduct since the prior, having three violations of probation in the prior case. The court admitted the evidence under Evidence Code sections 1108 and 352. The court also noted the evidence was relevant to show intent or absence of mistake.
Analysis
Except as otherwise provided in Evidence Code section 1101, 1102, 1103, 1108 and 1109, character evidence to “prove . . . conduct on a specified occasion” is inadmissible. (Evid. Code, § 1101, subd. (a).) Conduct evidence, however, may be admissible to prove some fact such as intent or absence of mistake. (Evid. Code, § 1101, subd. (b).) “Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. ‘In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2, italics omitted.) Defendant’s intent was at issue because he pleaded not guilty to forcible oral copulation, lewd act and annoying and molesting a child. (See People v. Daniels (1991) 52 Cal.3d 815, 857-858.)
Evidence Code section 1101 provides:
Propensity evidence is admissible in specified sex offense cases under Evidence Code section 1108. (People v. Falsetta (1999) 21 Cal.4th 903, 910-922 (Falsetta).)
Evidence Code section 1108 provides, in relevant part, as follows:
Evidence Code section 352 provides: “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.”
“[T]he 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. [Citation.] . . . [T]he prejudicial impact of the evidence 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, and that the jury’s attention would not be diverted by having to make a separate determination whether defendant committed the other offenses. [Citation.]” (Falsetta, supra, 21 Cal.4th at p. 917, citing People v. Balcom (1994) 7 Cal.4th 414, italics omitted.)
We will not disturb a trial court’s determination to admit evidence under Evidence Code section 352 unless defendant demonstrates that the trial court abused its discretion, that is, “the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
We conclude the trial court did not abuse its discretion under Evidence Code section 352 in admitting the prior sexual offense evidence.
Contrary to defendant’s claim that the court’s reasoning was conclusory, the record reflects that the trial court properly analyzed the evidence and the authority for admission for the same, weighing the probative value and prejudicial effect. “[W]hen ruling on a[n] [Evidence Code] section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under Evidence Code section 352.” (People v. Williams (1997) 16 Cal.4th 153, 213.) The trial court’s comments were sufficient here to show that it understood the balancing required under Evidence Code section 352.
In the prior incident, defendant molested his biological daughter when she was 12 years of age. Defendant argues that the trial court failed to mitigate the prejudice of the prior evidence by deleting reference to the victim as his biological daughter. The trial court concluded that the prosecution was entitled to introduce such fact to show a position of trust which was a factor similar to the current offenses. In the current offenses, defendant molested three young girls who were about 14 years of age. He molested his 12-year-old daughter in his bedroom. He molested the three young girls in his home, one in his bedroom. The prior incident was no more inflammatory than the current offenses which involved three young girls who defendant plied with alcohol and marijuana. Because defendant had been convicted of the prior offense which the jury was told, the prejudicial impact is reduced. We find no error.
II
In denying a section 654 stay, the court found that there were multiple victims and multiple events over an extended period of time and sentenced defendant to state prison for an aggregate term of 18 years and eight months as follows: for count 6, furnishing marijuana to L., the principal term, the midterm of four years; for count 1, forcible oral copulation of L., a full consecutive midterm of six years pursuant to section 667.6, subdivision (d); for count 3, lewd conduct upon L., count 4, annoying or molesting B., and count 5, annoying or molesting J., a consecutive one-third the midterm or eight months each; for counts 7, 8, 9, and 10, furnishing marijuana to B., J., A., and K., a consecutive one-third the midterm or 16 months each; counts 11 (possession of marijuana for sale) and 12 (maintaining a place for use and sale of controlled substance), a consecutive one-third the midterm or eight months each; and counts 13, 14, 15, 16 and 17, furnishing alcohol to a minor, a concurrent 60-day jail term each.
Defendant contends that the trial court erred in failing to apply section 654 to “Counts 3-17.” Defendant argues that his conduct showed a “continuous course of conduct . . . to host minors at his residence, and provide them with alcohol and marijuana. He possessed marijuana in order to provide it to the minors. He maintained his home as a place for the minors to use marijuana. While there were multiple minors present, the intent of [defendant], as shown by the evidence, was singular.” Defendant contends that the trial court failed to analyze the intent with respect to each count in order to run the sentences consecutive. On appeal, defendant fails to discuss each count separately.
Section 654 provides, in relevant part, as follows: “(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
“‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. . . .’ [Citation.]” (People v. Britt (2004) 32 Cal.4th 944, 951-952.) “[I]f the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations.]” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
The trial court’s determination on such issue will be upheld where substantial evidence supports it. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) “We review the [trial] court’s determination of [defendant’s] ‘separate intents’ for sufficient evidence in a light most favorable to the judgment, and presume in support of the court’s conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence. [Citation.]” (People v. Cleveland (2001) 87 Cal.App.4th 263, 271.)
We conclude that substantial evidence supports the trial court’s conclusion that section 654 did not bar punishment for counts 7 through 10 (furnishing marijuana to B., J., A., and K.) and counts 13 through 17 (furnishing alcohol to minors) because the acts occurred on separate occasions. Defendant’s conduct took place on different days over an extended period of time and involved multiple victims. L. and B. testified that they smoked marijuana at defendant’s house around 100 times. Defendant supplied alcohol and marijuana almost every weekend and defendant drank with the minors most weekends. And there was evidence that other minors received alcohol and marijuana from defendant. The search of defendant’s home revealed marijuana in the bedrooms belonging to both of defendant’s children, A. and K. Both received marijuana from defendant. A. smoked marijuana supplied by defendant once a week and admitted K. and defendant smoked marijuana in the house. K. claimed defendant gave him marijuana less than five times. L. estimated that she drank alcohol 10 to 20 times at defendant’s home. Over a six- to nine-month period of time, defendant provided alcohol to J. He also used J.’s money to buy her vodka and beer. B. drank alcohol at defendant’s house 20 to 25 times. A. testified that defendant sometimes allowed her, her brother and others to drink alcohol in the home. K. testified that defendant sometimes provided him with alcohol and bought alcohol for his friends. Substantial evidence supports the trial court’s determination that section 654 did not bar separate punishment for the marijuana and alcohol counts.
To convict defendant on counts 11 (possession of marijuana for sale) and 12 (maintaining a place for selling or using marijuana), the jury was instructed that it had to find that defendant committed these two offenses on November 30, 2006, and not on any other day. That was the date of the search which revealed approximately 25 grams of marijuana, money in individual envelopes, scales, packaging material, and other drug paraphernalia. The trial court properly found that section 654 did not bar separate punishment for counts 11 and 12 which occurred on a separate date.
The court chose count 6, furnishing marijuana to L., as the principal term. The court imposed a full, consecutive term for count 1, forcible oral copulation upon L., pursuant to section 667.6 subdivision (d). Defendant does not take issue with the term imposed for count 1.
The court imposed consecutive, one-third the midterms for count 3, lewd conduct upon L. L. testified that defendant took L. to his bedroom, closed the door, removed her clothes, put her in the bathtub and touched her vagina with his finger, saying, “You wish this was T[.], don’t you?” L. got out of the bathtub and tried to leave but defendant pushed her on the bed and “started fingering [her].” He then orally copulated her and, after a few minutes, got up and “started jacking off.” He kissed her on the lips, telling her that he loved her. L. tried to leave again but defendant grabbed her and took her to the bathroom where he washed off her stomach. He then let her go.
People v. Harrison (1989) 48 Cal.3d 321 (Harrison)held that in connection with sex offenses, each sexual assault may be viewed as a separately punishable criminal act even if the defendant claims that all the offenses were committed to further his single intent and objective of obtaining sexual gratification. (Id. at pp. 334-338.) Harrison stated that the defendant’s argument was “such a ‘broad and amorphous’ view” which “would impermissibly ‘reward the defendant who has the greater criminal ambition with a lesser punishment.’ [Citation.] Rather, in keeping with the statute’s purpose, the proper view was to recognize that a ‘defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act.’ [Citation.]” (Id. at pp. 335-336, quoting People v. Perez (1979) 23 Cal.3d 545.)
The trial court properly determined that section 654 was not a bar to punishment for count 3. While defendant’s lewd conduct upon L. occurred prior to and after his forcible oral copulation of L., under Harrison, such conduct was separately punishable.
With respect to counts 4 and 5, the annoying and molesting counts, each involved a separate victim, B. and J., on separate occasions. The trial court properly determined that section 654 did not bar separate punishment. As the trial court stated, “[Y]ou don’t get a volume discount for committing crimes against multiple victims.”
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P. J. ROBIE, J.
“(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, 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
“(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.
“(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”
“(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 Section 1101, if the evidence is not inadmissible pursuant to Section 352.
“ . . . .
“(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 . . . 647.6, of the Penal Code.”