From Casetext: Smarter Legal Research

People v. Sims

California Court of Appeals, Second District, Sixth Division
Sep 2, 2008
No. B201816 (Cal. Ct. App. Sep. 2, 2008)

Opinion

NOT TO BE PUBLISHED

Martin J. Tangeman, Judge, Superior Court County of San Luis Obispo No. F396192

Linda Rush, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Eric J. Kohm, Deputy Attorney General, for Plaintiff and Respondent.


YEGAN, J.

Russell Lee Sims appeals from the judgment entered following his conviction by a jury on four counts of committing a lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)), one count of forcible rape (§ 261, subd. (a)(2)), and one count of forcible sexual penetration. (§ 289, subd. (a)(1).) He was sentenced to prison for 20 years.

All statutory references are to the Penal Code unless otherwise stated.

Appellant contends that the trial court erroneously admitted evidence of child pornography found in his possession. In addition, he contends that the evidence is insufficient to support the convictions of forcible rape and forcible sexual penetration because there is no substantial evidence of the requisite degree of force. We affirm.

Facts

Audry M.: Lewd Act Upon a Child, Counts 1-4

Audrey M. was born in 1992, and appellant was born in 1979. When Audry M. was 11 years old, she was sleeping in a motel room with her sister and appellant. During the night, appellant put his hand under Audry M.'s bed covers and touched her vagina under her pajama shorts. The touching lasted about five minutes. Appellant twice put his fingers inside Audry M.'s vagina, causing her pain (counts 1 and 2).

Approximately two months later, Audry M. was sleeping over at appellant's apartment. After she wet the bed, appellant removed her clothes and told her to lie on the floor so that he could clean her. He also told her to put a sleeping bag over her head. Audry M. did as she was told. While she was lying on the floor, appellant wiped the outside of her vagina with a wet towel (count 3). He then put his fingers inside her vagina (count 4). Audry M. felt pain and asked appellant to stop. Appellant complied with her request.

Kendra S.: Forcible Sexual Penetration, Count 6

Kendra S. was born in 1987. Her best friend was appellant's sister. In 2002, when appellant was in his early twenties and Kendra S. was about 14 years old, he drove her to a rural area. They walked up a hill, lay down on a blanket, and started kissing. Appellant pulled down Kendra S.'s pants to her ankles. He got on top of her and put his fingers inside her vagina. Kendra S. did not want appellant to digitally penetrate her. But she did not say anything to him about his conduct. She was shocked because she had been "really sheltered . . . and . . . didn't really know anything about guys." Appellant stopped because "[h]e had to go pick up his kid and talk to his wife."

Kendra S.: Forcible Rape, Count 5

Two years later, when Kendra S. was 16 years old, she was "making out" with appellant inside a shack in back of his mother's house. Kendra S. consented to the "making out." Appellant kept asking her to have sex with him, but she refused more than three times. She had previously told appellant that she was a virgin and wanted to retain her virginity. Appellant got on top of Kendra S. and held both of her forearms. He first put his fingers and then put his penis inside Kendra S.'s vagina.

Evidence of Child Pornography

On July 20, 2006, deputy sheriffs searched a storage shed pursuant to a search warrant. Inside a box, they found appellant's driver's license, social security card, two utility bills in appellant's name, and two folders containing pornographic photographs of nude females. Thirty photographs were received in evidence. The parties stipulated to a pediatrician's testimony that the 30 photographs depicted females between the ages of 11 and 15. The trial court described these photographs as showing "young girls in sexually graphic poses."

The trial court admitted the photographs pursuant to Evidence Code section 1101, subdivision (b), which provides that evidence of a person's conduct is admissible to prove intent, but is inadmissible to show the person's disposition to engage in such conduct. The trial court reasoned: "[T]he photographs are admissible because they are probative of the lewd intent necessary to the crimes charged and the probative value outweighs the risk of undue prejudice, confusion or consumption of time." Section 288, subdivision (a), requires that the defendant have the specific intent of "arousing, appealing to, or gratifying the lust, passions, or sexual desires of [the defendant] or child."

Appellant contends that the photographs were erroneously admitted. "We review the admission of evidence under Evidence Code section 1101 for an abuse of discretion. [Citation.]" (People v. Memro (1995) 11 Cal.4th 786, 864 (Memro).)

Based on Memro, which the trial court cited as authority for its ruling, the court did not abuse its discretion. The defendant in Memro was charged with the first-degree murder of a seven-year-old boy. "An enzyme found in [the boy's] anal area suggested an attempt at sodomy." (Memro, supra, 11 Cal.4th at p. 811.) The defendant told the police that he had "tried to engage in anal intercourse with [the victim's] dead body." (Id., at p. 813.) The prosecution relied on a felony-murder theory of guilt: the killing allegedly had occurred during the commission or attempted commission of a lewd act on a child in violation of section 288. Pursuant to Evidence Code section 1101, subdivision (b), the trial court admitted magazines and photographs depicting clothed and unclothed males ranging in age from prepubescent to young adult. Some of the photographs were sexually explicit. Our Supreme court upheld the trial court's ruling: "The court did not abuse its discretion by ruling the magazines admissible under Evidence Code section 1101, subdivision (b), to show intent. We believe the photographs were admissible to show defendant's intent to molest a young boy in violation of section 288. [¶] . . . [T]he photographs, presented in the context of defendant's possession of them, yielded evidence from which the jury could infer that he had a sexual attraction to young boys and intended to act on that attraction. [Citation.] The photographs of young boys were admissible as probative of defendant's intent to do a lewd or lascivious act with [the victim]." (Memro, supra, 11 Cal.4th at pp. 864-865.)

Pursuant to the reasoning of Memro, the 30 pornographic photographs of nude female youths were properly admitted to show that appellant "had a sexual attraction to young [girls] and intended to act on that attraction." (Memro, supra, 11 Cal.4th at p. 865.) They were "admissible as probative of appellant's intent to do a lewd or lascivious act with [Audry M.]." (Ibid.)

Appellant argues that his intent was not an issue because the charged lewd acts were so "clearly sexual" that they "conclusively established the requisite intent." (AOB 17) We disagree. "[Appellant's] intent to violate section 288 was put at issue when he pleaded not guilty to the crimes charged. [Citations.]" (Memro, supra, 11 Cal.4th at p. 864.)

We reject appellant's contention that the exclusion of the photographs was required by People v. Ewoldt (1994) 7 Cal.4th 380, and its companion case, People v. Balcom (1994) 7 Cal.4th 414. (AOB 15-18) In Ewoldt the defendant was convicted of committing lewd acts upon a child in violation of section 288, subdivision (a). Our Supreme Court concluded that uncharged similar lewd acts committed against the victim and her sister were inadmissible to prove the defendant's intent. The court reasoned that, if the defendant had committed the charged lewd acts, they were so sexually explicit that "his intent . . . could not reasonably be disputed." (People v. Ewoldt, supra, 7 Cal.4th at p. 406.) Thus, "[a]s to these charges, the prejudicial effect of admitting evidence of similar uncharged acts . . . would outweigh the probative value of such evidence to prove intent." (Ibid., fn. omitted.) The admission of such evidence would therefore constitute an abuse of discretion pursuant to Evidence Code section 352, which provides: "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, of confusing the issues, or of misleading the jury."

Ewoldt is distinguishable because the uncharged misconduct in that case involved the defendant's commission of similar lewd acts against the victim and her sister. This similarity gave rise to a danger that the jury would conclude that, if the defendant committed the uncharged lewd acts, he also committed the charged acts. Appellant's possession of child pornography, on the other hand, was totally different from the charged offenses. Therefore, the admission of the child pornography here was less prejudicial than the admission of the uncharged lewd acts in Ewoldt.

Furthermore, in Ewoldt the defendant "offered to stipulate 'that if the jury finds that the defendant was present and committed the various acts which are the subject of these charges, . . . he did so with the requisite specific intent and that, therefore, . . . intent would no longer be an issue . . . .' " (People v. Ewold, supra, 7 Cal.4th at p. 387.) Appellant did not offer a similar stipulation.

In People v. Balcom, supra, 7 Cal.4th 414, the defendant was charged with forcible rape. "The victim testified that defendant placed a gun to her head and forced her to engage in sexual intercourse." (Id., at p. 422.) Our Supreme Court concluded that, in view of the victim's testimony, evidence of the defendant's commission of a similar rape against a different victim was inadmissible to prove his intent. The court reasoned: "Defendant's plea of not guilty put in issue all of the elements of the offenses, including his intent [citation], and evidence that defendant committed uncharged similar offenses would have some relevance regarding defendant's intent in the present case. But, because the victim's testimony that defendant placed a gun to her head, if believed, constitutes compelling evidence of defendant's intent, evidence of defendant's uncharged similar offenses would be merely cumulative on this issue. [Citation.] Accordingly, we conclude that the limited probative value of the evidence of uncharged offenses, to prove intent, is outweighed by the substantial prejudicial effect of such evidence." (Id., at pp. 422-423.)

Like Ewoldt, Balcom is also distinguishable because the uncharged misconduct in that case involved the defendant's commission of a rape similar to the charged offense, not the possession of pornographic photographs. Moreover, the intent at issue in Balcom was different from the intent at issue here. "Forcible rape is a general intent crime . . . ." (People v. DePriest (2007) 42 Cal.4th 1, 48.) Therefore, "the requisite criminal intent is the intent to do the prohibited act. [Citation.]" (People v. Dancy (2002) 102 Cal.App.4th 21, 34.) A violation of section 288, subdivision (a), on the other hand, requires "the specific intent of arousing, appealing to, or gratifying the lust of the child or the accused. [Citations.]" (People v. Raley (1992) 2 Cal.4th 870, 907.) Here appellant's possession of the child pornography was particularly relevant in establishing the requisite specific intent. Such evidence was not "merely cumulative on this issue." (People v. Balcom, supra, 7 Cal.4th at p. 423.)

Irrespective of the applicability of Ewoldt and Balcom, appellant argues that the trial court abused its discretion in not excluding the photographs pursuant to Evidence Code section 352 because their probative value was substantially outweighed by their prejudicial effect. Appellant contends that the photographs' "probative value was diminished because it was not even clear when appellant possessed the pictures because they were in storage and in a box with old items." But the evidence showed that in April 2006 appellant had started putting his property inside the storage shed. The lewd acts involving Audry M. were committed approximately three years earlier. Thus, appellant possessed the photographs near the time that the charged offenses were committed.

Appellant complains that there were " 'hundreds and hundreds' of photographs of adult age females" that were not admitted in evidence. He alleges: "That the appellant possessed significantly more photographs of females that were of adult age, diminished the probative value of the [30] selected photographs, and heightened their prejudicial effect by misleading the jury into believing appellant's sole interest was in younger girls." Appellant has failed to cite to any evidence in the record showing that he possessed hundreds of photographs of adult females, or that there were significantly more photographs of adult females than of young girls. We therefore consider this issue to be waived. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) In any event, appellant's sexual interest in adult females did not diminish the probative value of the 30 photographs to show that he also had a sexual interest in young girls.

Appellant argues that the 30 photographs were especially prejudicial because they "showed young girls in sexually graphic poses" and "[p]eople feel revulsion toward child pornography." The Memro court's response to a similar argument applies here: "We find no abuse of discretion in admitting the magazines or the photographs. To be sure, some of this material showed young boys in sexually graphic poses. It would undoubtedly be disturbing to most people. But we cannot say that it was substantially more prejudicial than probative, for its value in establishing defendant's intent to violate section 288 was substantial. The court balanced the items' evidentiary worth against their potential to cause prejudice and determined that the former substantially outweighed the latter. Its decision was reasonable." (Memro, supra, 11 Cal.4th at p. 865.)

The trial court's decision was also reasonable because the pornographic photographs were less inflammatory than the testimony concerning the charged offenses. (See People v. Ewoldt, supra, 7 Cal.4th at p. 405 [potential for prejudice decreased because "[t]he testimony describing defendant's uncharged acts . . . was no stronger and no more inflammatory than the testimony concerning the charged offenses"].)

Sufficiency of the Evidence

Standard of Review

On a claim of insufficiency of the evidence "we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Snow (2003) 30 Cal.4th 43, 66.) We must " ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' [Citation.]" (People v. Rayford (1994) 9 Cal.4th 1, 23.) "[I]t is not within our province to reweigh the evidence or redetermine issues of credibility. [Citation.]" (People v. Martinez (2003) 113 Cal.App.4th 400, 412.) "Reversal . . . is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Forcible Rape, Count 5

Appellant contends that substantial evidence does not support the force element of forcible rape. Based on People v. Griffin (2004) 33 Cal.4th 1015 (Griffin), appellant's contention is without merit.

In Griffin the "defendant, without [the victim's] consent and against her will, partially penetrated her vagina with his penis after moving his body on top of hers while holding or pinning her arms to the floor so that she was unable to move them." (Griffin, supra, 33 Cal.4th at p. 1020.) The victim did not voice an objection until after the penetration. Our Supreme Court concluded that this evidence was sufficient to support the jury's determination that the defendant had used the requisite degree of force for forcible rape. The court reasoned that there is nothing "in the express statutory language of section 261 itself, that suggests force in a forcible rape prosecution actually means force 'substantially different from or substantially greater than' the physical force normally inherent in an act of consensual sexual intercourse. [Citation.] To the contrary, it has long been recognized that 'in order to establish force within the meaning of section 261, subdivision (2) [now subd. (a)(2)], the prosecution need only show the defendant used physical force of a degree sufficient to support a finding that the act of sexual intercourse was against the will of the [victim].' [Citation.] . . . ' " 'The kind of physical force is immaterial; . . . it may consist in the taking of indecent liberties with a woman, or laying hold of and kissing her against her will.' " ' [Citation.]" (Griffin, supra, 33 Cal.4th at pp. 1023-1024.)

Kendra S. testified that, without her consent and against her will, appellant penetrated her vagina with his penis after getting on top of her while holding both of her forearms. Appellant knew that Kendra S. wanted to retain her virginity, but he disregarded her repeated refusals to have sex with him. Thus, as in Griffin, the prosecution met its burden of showing that appellant " 'used physical force of a degree sufficient to support a finding that the act of sexual intercourse was against the will of the [victim].' " (Griffin, supra, 33 Cal.4th at pp. 1023-1024.) Indeed, the evidence of force here is stronger than in Griffin, since the victim in Griffin did not object until after the defendant had penetrated her. Kendra S., on the other hand, expressly objected more than three times before appellant penetrated her.

Forcible Sexual Penetration, Count 6

Appellant also contends that substantial evidence does not support the force element of forcible sexual penetration. Appellant acknowledges that the Griffin standard of force applies here. Thus, the prosecution was required to show only that appellant "used physical force of a degree sufficient to support a finding that the act of [digital penetration] was against the will of the [victim].' " (Griffin, supra, 33 Cal.4th at pp. 1023-1024.)

Substantial evidence supports the jury's determination that appellant used the requisite degree of physical force. The digital penetration was without Kendra S.'s consent and against her will. Appellant used physical force by pulling her pants down to her ankles and getting on top of her. Kendra S. did not voice an objection to appellant's actions, but neither did the victim in Griffin. The Griffin court reasoned: "The jury could reasonably infer that by pinning her arms to the floor, defendant was able to achieve penetration . . . without [the victim's] consent before she was able to register her objection." (Griffin, supra, 33 Cal.4th at p. 1029.) "Here, as in Griffin, the onset of [appellant's digital penetration] was sudden and unexpected, giving the victim little opportunity to object." (People v. Mejia (2007) 155 Cal.App.4th 86, 102.) Kendra S. testified that she was shocked because she had been "really sheltered . . . and . . . didn't really know anything about guys." (7RT 1859)

Disposition

The judgment is affirmed.

We concur: GILBERT, P.J. COFFEE, J.


Summaries of

People v. Sims

California Court of Appeals, Second District, Sixth Division
Sep 2, 2008
No. B201816 (Cal. Ct. App. Sep. 2, 2008)
Case details for

People v. Sims

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RUSSELL L. SIMS, Defendant and…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Sep 2, 2008

Citations

No. B201816 (Cal. Ct. App. Sep. 2, 2008)