Opinion
E066511
06-11-2018
THE PEOPLE, Plaintiff and Respondent, v. LEONARD GARY SMITH, Defendant and Appellant.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty, III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1503934) OPINION APPEAL from the Superior Court of Riverside County. Mark E. Johnson, Judge. Affirmed. Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty, III, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Leonard Gary Smith solicited C.C. to help take care of his mother in exchange for him allowing her, and her two daughters, Jane Doe 1 (Doe1) and Jane Doe 2 (Doe2), to stay at his house several nights each week. One night, while the girls were sleeping in one of the bedrooms, defendant entered the room, naked. He rubbed his hand across the bed, touched his genitals and offered them money.
Defendant was convicted of one count of attempted lewd and lascivious conduct with a child under the age of 14 (Pen. Code, §§ 664, 288, subd. (a); count 2) against Doe2; two counts of misdemeanor child annoyance (Pen. Code, § 647.6, subd. (a); counts 3 & 4) against both girls; and after the jury could not reach a verdict on a charge of lewd and lascivious conduct on a person under the age of 14 against Doe1 (Pen. Code, § 288, subd. (a); count 1) he entered a guilty plea to a charge of attempted lewd and lascivious conduct with a child under the age of 14 (Pen. Code, §§ 664, 288, subd. (a)). Defendant was sentenced to four years in state prison.
Defendant makes one claim on appeal that the trial court erred by admitting a prior sexual offense committed by him in 2004 pursuant to Evidence Code section 1108, as it was more prejudicial than probative. We affirm the judgment.
FACTUAL BACKGROUND
A. CURRENT INCIDENTS
C.C. was the mother of Doe2 and Doe1 (who were 11 and 13 years old, respectively, at the time of trial in 2016). In August 2015, C.C. and the girls had been staying with defendant and his mother in his home located on Finley Drive in Moreno Valley. C.C. had been living with Doe2 and Doe1 in Louisiana but defendant asked her to come live with him to take care of his mother. C.C., Doe2 and Doe1 did not stay in defendant's home every night; they stayed only two or three times each week. Defendant oftentimes slept on the couch in the living room. C.C., Doe2 and Doe1 stayed in one of the bedrooms.
On August 10, 2015, after C.C. and the girls had been staying at defendant's house for about two weeks, C.C. fell asleep in a recliner chair in the living room while watching a movie. Defendant was on the couch watching the movie with her. She woke up at around 4:00 a.m. and went to the bathroom. She went to the bedroom where Doe2 and Doe1 were sleeping to get into bed with them. When she entered the room, they were both awake. They both appeared to be scared.
Doe1 told C.C. that defendant came into their bedroom and was nude. He offered them money for what she thought was to do sexual things to him. He touched their feet. Doe1 told her defendant left the room then came back in his underwear. C.C. found defendant on the couch in his underwear; he was sleeping. C.C. instructed Doe1 to call the police. C.C., Doe2 and Doe1 all waited in the bedroom for the police. Earlier that night, C.C. had seen four $20 bills on the coffee table in the living room.
Doe1 recalled that she stayed in defendant's home in Moreno Valley in August 2015. One night, she and her sister Doe2 went to sleep around 11:00 p.m. In the middle of the night, she was awakened by defendant calling her and Doe2's names. Defendant was nude. He told them he came in their room to see if they wanted $40. He was holding the money in his hand. Defendant touched his genitals while he was in the room. Defendant walked over to the end of the bed on Doe1's side of the bed. He rubbed the end of the bed with his hand as he walked. His hand touched her toes for a few seconds. His hand touched his genitals while he was touching her foot.
Defendant asked several times if they each wanted to make $40. Doe2 was ready to say yes but Doe1 whispered to her to say no. Doe2 and Doe1 pretended to sleep and defendant stayed in the room. Defendant stood touching his private parts; Doe1 described his action as lifting or rubbing his private part. After five minutes, he left the room.
About 10 or 15 minutes later, defendant came back in the bedroom. He asked them if they were sure they did not want to make money since it was a lot of money. He was still holding the money. They told him they were sure. Doe2 gave defendant a strange look and he told her, "What do you think I'm naked for?" Defendant stayed for several minutes trying to convince them to take the money. Doe2 and Doe1 just tried to ignore him. Defendant finally left.
Five minutes later, defendant came back a third time and asked to use the bathroom connected to the room; there was another bathroom by the living room he could have used. Doe1 believed he was naked this third time. Defendant came out of the bathroom and told them he could not go to the bathroom; he touched his private part. They followed defendant out of the room. They sat in a room next to the living room watching television. Defendant came into the room wearing his underwear, which had a big hole in the crotch area, and told them they had to go back to bed. Doe1 asked for their mom but he told them she was asleep and they had to go back in the bedroom. Doe2 grabbed a butter knife that was on the counter in the kitchen and hid it under her pillow. They sat awake in bed until C.C. came into the room. Doe1 called the police.
Doe2 shared a bedroom with Doe1 and C.C. in defendant's house. One night, Doe2 recalled she was sleeping and woke up to defendant calling her and Doe1's names. Defendant was naked. She saw his private parts. Defendant was moving back and forth at the foot to the bed and his private part was moving around. He asked them several times if they each wanted $40. He told them it was a lot of money and asked, "Why you guys think I'm standing here naked?" Defendant went into the bathroom and then came back out. He again asked if they wanted $40. Defendant had the money in his hand. She told him no. Defendant pulled on the blankets; Doe2 believed he was trying to remove them. He tried to touch her feet. Doe1 whispered to Doe2 to say no when defendant offered them money. Doe1 sounded scared.
Defendant left the room and came back 15 minutes later. Doe2 was afraid if they called out to C.C. defendant would lock them all in the bedroom together. Defendant left and then came back in the bedroom. He asked to go to the restroom. He went inside the bathroom. He emerged and again asked if they wanted the $40. He touched and "wiggled" his private part. Defendant assured them it was okay because their mom knew he was in their room.
Doe2 and Doe1 went to a room by the living room and watched television. Defendant came in the room wearing underwear with a big hole and told them to go back to bed. Doe2 grabbed a butter knife and they went back in the bedroom. C.C. came in their room and they called the police. Doe2 thought defendant tried to touch her toes but she did not actually see him trying nor did she feel it.
Riverside County Sheriff's Deputy Darry Holt received a call to respond to defendant's home on Finley Drive on August 10, 2015. He arrived around 5:00 a.m. Defendant eventually answered the door wearing only his boxer briefs. He had a large hole in the inner crotch area of his boxers. Deputy Holt immediately smelled alcohol on defendant. His speech was slightly slurred.
Deputy Holt entered the living room. He observed four $20 bills on the coffee table. On another table he observed three or four pornographic DVDs. The cover of one of the DVD cases depicted nude women.
Deputy Holt booked the DVDs into evidence but was unable to retrieve them in time for trial.
Defendant had a bedroom in the house, which was in the front of the house facing the street. Defendant and C.C. got into an argument one week before this incident and defendant had called the police; police instructed them to work it out. Defendant wanted C.C. to move out. She moved out for a couple of days but then defendant asked her to come back. C.C. moved out of defendant's home immediately after the incident.
B. PRIOR INCIDENT
S.S. was 22 years old at the time of trial. In 2004, when she was 10 years old, she lived on Finley Drive in Moreno Valley. One afternoon, she rode her bike up and down the street in her neighborhood. As she was riding, she heard two or three knocks on the living room window on a house to the right of her. She looked and saw a man, whom she identified in court as defendant, standing naked at the living room window. She could see his genitals. Defendant was just standing at the window. S.S. was within 20 feet of him. S.S. could clearly see the defendant's face. She saw him for at least 35 seconds. He made no movement; he did not try to cover himself. S.S. rode her bike home and told her mother. S.S. never actually saw defendant knock on the window.
S.S.'s parents reported the incident to the police. The police drove S.S. in front of defendant's house and had him come outside the house. She could not recall if she identified him as the man who exposed himself to her in 2004. In 2004, she thought that defendant was standing on a bed.
C. DEFENSE EVIDENCE
Doe2 never told Deputy Holt that defendant tried to touch her feet or that she grabbed a butter knife. Tommi Callegari was defendant's aunt. Callegari went to defendant's home when he was arrested on August 10, 2015. She was advised that she needed to take care of defendant's mother. When she arrived, defendant's car was missing. She tried all day to contact C.C. to get the car back but C.C did not respond. The car was returned to the house by C.C. later that evening. C.C. gave Callegari the keys to the car and the house. That same day, the locks were changed. Four days later the house was broken into and several items were missing. Entry was made through a garage door.
DISCUSSION
Defendant contends S.S.'s testimony regarding defendant exposing himself to her in 2004 was improperly admitted propensity evidence that should have been excluded under Evidence Code section 352 because it was more prejudicial than probative.
1. ADDITIONAL FACTUAL BACKGROUND
Prior to trial, the People sought to admit the 2004 prior sexual offense involving S.S. The People presented the following facts: "In February of 2004, the defendant, was a resident of Moreno Valley, the same address as the instant offense. The defendant was standing in a bedroom in front of a window facing the street. [S.S.] was 10 years old and riding her bicycle on the street. As she passed the defendant's house the defendant tapped on the window to grab the attention of [S.S.]. Once [S.S.] looked toward the window she saw the defendant nude. The defendant was standing on something so that his entire naked body could be seen by [S.S.]. [S.S.] later identified the defendant." The People argued the evidence was probative because it was anticipated that defendant would claim at trial that Doe2 and Doe1 were lying.
Defendant filed a response. Defendant presented additional evidence of the incident that defendant appeared to be standing on a bed. Defendant never made any motion or gesture toward S.S. Defendant told police he just had his shirt off and was in his bedroom. No charges were filed against defendant. Defendant argued that the trial court had to conduct a careful analysis of the factors under Evidence Code section 352. Defendant argued the 2004 sexual offense was dissimilar from the offenses here and there was an innocent explanation for his behavior. Further, the prior offense was remote in time.
The trial court addressed the Evidence Code section 1108 evidence prior to trial. The trial court first agreed with the People that the defense in the case would be either that the event did not happen or that it was misinterpreted. The People argued that defendant was charged with misdemeanor annoying and molesting a child, which was established when one exposed oneself in an offensive manner in the presence of someone else. The 2004 incident involved exactly this conduct: Defendant was nude in front of a 10 year old girl, which was exactly the behavior in counts 3 and 4 charged in the instant case. Also, since the act was committed in 2004, which was somewhat recent, it showed a pattern of defendant's conduct.
The People sought to additionally admit an incident from 1996 and the trial court granted the admission of the incident based on its similarity to the current allegations. However, the People never presented evidence of this prior conviction because the witness was unavailable.
Defendant argued the evidence of the 2004 incident only showed that the victim heard a knock and looked over to see defendant standing naked in his bedroom. There was no evidence defendant had made a noise or gestured at the victim. Defendant contended the evidence was more prejudicial than probative under Evidence Code section 352. The incident occurred 10 years prior to the current incident. Further, the 2004 incident was uncharged and the jury would want to punish defendant for the prior conduct.
The trial court found the 2004 incident was admissible. The trial court felt the evidence of the 2004 incident supported that defendant called to the victim while nude and appeared to want to engage the victim in some kind of activity. The similarity of the incident to the current charges warranted admission pursuant to Evidence Code section 1108. The trial court concluded, "I don't find that the prejudicial impact substantially outweighs the probative value, which is extremely strong in this case on the issue of propensity."
The evidence was introduced as discussed, ante. After the presentation of evidence, the jury was instructed with CALCRIM No. 1191 as follows: "The People presented evidence that the defendant committed the crime of annoying or molesting a child in 2004 against . . . S.S., that was not charged in this case. The crime is . . . defined for you in these instructions. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense. [¶] And this was the one thing I was referring to in that earlier instruction, the one time where it would be a different standard of proof than beyond a reasonable doubt. This is the only count. [¶] Proof by a preponderance of the evidence is a different burden from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offense, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision also conclude that the defendant was likely to commit and did commit the crimes charged in Counts 1, 2, 3, and 4 as charged here. If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It's not sufficient by itself to prove the defendant is guilty of the crimes charged in Counts 1, 2, 3, and 4. The People must prove—still must prove each—the People must still prove each beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose."
2. ADMISSION OF EVIDENCE CODE SECTION 1108 EVIDENCE
Evidence Code section 1108 provides, in relevant 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 Section 1101, if the evidence is not inadmissible pursuant to Section 352." "When a defendant is accused of a sex offense, Evidence Code section 1108 permits the court to admit evidence of the defendant's commission of other sex offenses, thus allowing the jury to learn of the defendant's possible disposition to commit sex crimes. [Citation.] The court has discretion under Evidence Code section 352 to exclude the evidence if it is unduly prejudicial. [Citation.] The evidence is presumed admissible and is to be excluded only if its prejudicial effect substantially outweighs its probative value in showing the defendant's disposition to commit the charged sex offense or other relevant matters." (People v. Cordova (2015) 62 Cal.4th 104, 132.)
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]rial courts may no longer deem 'propensity' evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352." (People v. Falsetta (1999) 21 Cal.4th 903, 916-917.)
Factors that a trial court should consider when deciding whether to allow the presentation of prior sexual offense evidence are: "(1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant's charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time." (People v. Huy Ngoc Nguyen (2010) 184 Cal.App.4th 1096, 1117.) However, the trial court need not detail the weighing process on the record to comply with the requirements of Evidence Code section 352. (People v. Williams (1997) 16 Cal.4th 153, 213-214.)
"This court reviews the admissibility of evidence of prior sex offenses under an abuse of discretion standard. [Citation.] A trial court abuses its discretion when its ruling 'falls outside the bounds of reason.' " (People v. Wesson (2006) 138 Cal.App.4th 959, 969.)
Here, the 2004 offense was similar to the instant offenses in counts 3 and 4. Defendant knocked on his window either in his bedroom or living room while S.S. rode her bike by his house. Defendant stood on something so that S.S. could see his entire naked body. Although defendant did not make any gestures or movements toward S.S., he also did not try to cover himself or move. S.S. was similar in age to the ages of Doe2 and Doe1. The trial court did not abuse its discretion by concluding the offenses were similar.
Defendant complains that the evidence of the prior incident did not support that he "called" S.S. over or tried to entice her to engage in some type of sexual activity. However, the evidence established that defendant knocked on the window catching S.S.'s attention and stood nude at the window. The trial court could reasonably conclude that by knocking on the window defendant was trying to get S.S. to look at him naked and certainly it is reasonably implied it was sexual in nature based on defendant making no effort to cover himself.
Additionally, the 2004 offense was not more inflammatory than the offenses committed here. In the prior incident, defendant did not know S.S. and did not touch himself. Here, he stood naked in front of Doe2 and Doe1, touched his genitals and offered them money. He entered the bedroom several times despite it being clear Doe2 and Doe1 did not want him in the room. The current offenses were much more egregious than the 2004 offense.
Defendant also complains that the 2004 incident occurred 10 years before the instant offenses, e.g. the prior sexual offense was too remote. However, the incident occurred just 10 years prior and while defendant was living in the same house. Numerous cases have allowed introduction of incidents occurring 20 to 30 years earlier. (See People v. Robertson (2012) 208 Cal.App.4th 965, 992 [34-year-old prior sexual offense admitted]; People v. Waples (2000) 79 Cal.App.4th 1389, 1393, 1395 [prior sexual offenses committed over 20 years prior were not too remote]; People v. Soto (1998) 64 Cal.App.4th 966, 992 ["passage of a substantial length of time does not automatically render the prior incidents prejudicial"].) The 2004 sexual offense was not too remote.
Moreover, it was unlikely that the jury convicted defendant of the current offenses in order to punish him for the uncharged prior sexual offense. Initially, the jury was instructed with CALCRIM No. 1191, which advised them that they could not use this evidence alone to convict defendant. "We presume the jury understood and followed those instructions." (People v. Williams (2009) 170 Cal.App.4th 587, 607.) Additionally, the jury was unable to reach a verdict on the lewd and lascivious conduct charged involving Doe1. If the jury sought to punish defendant for the prior uncharged sexual offense it is reasonable to conclude it would have found him guilty of this offense as charged.
The trial court properly considered the probative value of the 2004 evidence and its potential prejudicial effect. It did not abuse its discretion by concluding it was admissible. Furthermore, even if the trial court had excluded the evidence involving S.S., it is not reasonably probable an outcome more favorable to defendant would have been reached by the jury. (People v. Jandres (2014) 226 Cal.App.4th 340, 357; see also People v. Watson (1956) 46 Cal.2d 818, 836-837.)
We note this argument would only apply to counts for which the jury found him guilty and not the charge to which he plead guilty as he did not obtain a certificate of probable cause.
Moreover, the testimonies of Doe2 and Doe1 were compelling. They both consistently testified that defendant entered their bedroom several times while naked. He touched his genitals and offered them money. Defendant was found later on the couch in just his underwear and with money laying on a table in the bedroom. Overwhelming evidence supported the jury's verdicts in this case even without the prior sexual offense evidence.
DISPOSITION
The judgment is affirmed in full.
MILLER
J. We concur: RAMIREZ
Retired Judge of the Riverside Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
J.