Opinion
B149552.
7-2-2003
THE PEOPLE, Plaintiff and Respondent, v. DAVID SMITH, Defendant and Appellant.
Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Lauren E. Dana and Erin Pittman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant David Smith appeals from a judgment of conviction on two counts of lewd act upon a child under age 14 (Pen. Code, § 288, subd. (a)). Appellant argues that the trial court erred in admitting evidence of prior sex offenses under Evidence Code sections 1108 and 352, that the trial court erred in instructing the jury on CALJIC Nos. 2.50.01 and 17.41.1, and that the court violated ex post facto laws by imposing a parole revocation fine under a statute not in effect when appellants crimes were committed. We conclude that the trial court did not commit evidentiary or instructional error, but that the trial court erred in imposing the fine. We accordingly affirm the judgment except as to the fine, which we order stricken.
All further statutory references are to the Evidence Code unless otherwise indicated.
FACTS
We comment on the challenged jury instructions in the Discussion section of our opinion.
In 1990 or 1991, when appellant was babysitting his nine-year-old niece S.W., appellant took off her overall pajamas and put his head between her legs. He put his hand on her private area. S.W. urinated, and her uncle jumped up. Appellant threatened S.W. that if he got in trouble, she would too. There were subsequent incidents when appellant babysat and would rub the front of his body on his niece.
When S.W.s cousin, M.S., was five years old in 1991, she lived with S.W., her mother Debra and occasionally appellant. During that time, there were instances when appellant put his hands on his niece M.S.s vagina when the two of them were alone. Sometimes appellant touched M.S. under her clothes and other times over her clothes. Appellant told M.S. not to tell anybody. Appellant also photographed M.S. in different poses that he told her to get into while she was wearing her nightgown, and he had the girl lift the nightgown. A few years later, when M.S. was in fifth grade and living with her father, appellant once brushed his body up against her. After the last incident, a crying M.S. confided in her Aunts Angela and Diane.
Appellant was charged with two counts of the crime of committing a lewd act upon a child under age 14 years (Pen. Code, § 288, subd. (a)), the first count naming S.W. as the victim and the second count naming M.S. as the victim. He was also charged with a third count of the crime of lewd act on a child, but that count was eventually dismissed on the Peoples motion.
Prior to trial, the prosecution successfully moved to have evidence of prior sexual misconduct admitted under section 1108. Defense counsel objected, stating that his objection "goes throughout this entire proceeding."
At trial, 32-year-old A. testified that from ages 9 through 11, her brother, appellant, molested her. A. testified that once appellant touched her breasts under her training bra, and another time he tried to force her into the bathroom at gunpoint. Appellant threatened to shoot himself if A. did not do as asked, so she let him touch her vagina. One night when she was in bed, he attempted to insert one of his body parts inside her. When A. was 11 or 12 years old, she told her mother about what appellant did. Her sister D. confronted appellant in a family meeting where appellant "admitted that he had did it. And I believe they had asked him why did he do it, and he doesnt know why. At the time they forgave him because we had thought he had stopped doing that." No one contacted the police.
A. further testified that in 1996, around the time the family was together for a relatives funeral, her niece M.S. told her mother and A. about what appellant had done to her. M.S. was crying at the time. Because of this revelation, A. spoke to her niece S.W. S.W. also began crying when she spoke about what appellant had done to her.
Renita C. testified about the other prior sexual misconduct at issue. According to C., in 1998 she met appellant through her two daughters, including her then-12-year-old L. Because appellant was planning on driving Renita C. and her daughters to a family reunion in the early morning, he spent the night at Renita Cs home. When Renita C. left the bathroom, she saw appellant with L. in the living room with L.s underwear on the floor. Appellant appeared "very jumpy." Renita C. dialed 911, and when the police arrived, appellant apologized for hurting Renita C.
L. testified that she met appellant when he was driving a car in front of her home. He told her he knew her mother. L. got her mother, and appellant agreed to repair windows of the house. Appellant stayed the night because he was going to drive Renita C. and her daughters to a family reunion. Feeling pressured by appellant to be next to him, L. testified that appellant took her underwear off against her will, touched her legs and inserted his finger into her vagina. Then, when Renita C. came out of the bathroom, appellant jumped up and quickly moved his hands. Appellant told L. not to tell anybody what had happened.
Appellant was convicted on counts 1 and 2 for committing a lewd act on a child under age 14. He was sentenced to a total of 15 years prison, comprised of 8 years for count 1, 2 years for count 2 and a 5-year enhancement (Pen. Code, § 667, subd. (a)). The court also ordered appellant to pay a parole restitution fine under Penal Code section 1202.45, stayed the fine and ruled that the stay was to become permanent upon appellants successful completion of parole.
DISCUSSION
Prior Sexual Offenses Evidence
Appellant first contests the constitutionality of section 1108. Subdivision (a) of section 1108 states: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." Section 1101 provides in pertinent part: "(a) Except as provided in this section and in Section[] . . . 1108 . . ., evidence of a persons character or a trait . . . (whether in the form of . . . evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." Section 352 gives the court discretion to "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."
Although appellant acknowledges that a due process challenge to section 1108 was rejected in People v. Falsetta (1999) 21 Cal.4th 903, 986 P.2d 182, he argues that our Supreme Courts analysis is flawed. Whether it is or not, we are bound to follow it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal. Rptr. 321, 369 P.2d 937.)
Appellant attacks the federal constitutionality of section 1108, but, as the People point out, section 1108 was modeled on a federal rule of evidence that withstood such attacks. (People v. Falsetta , supra, 21 Cal.4th at pp. 912, 920.) Thus, appellants federal constitutional challenge lacks merit.
In reply to the Peoples brief, appellant notes that the Ninth Circuit Court of Appeal, in Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769, "found that using evidence of prior offenses to show propensity may violate a defendants due process right to a fair trial." Garceau is inapposite because it does not concern sex offense evidence, for which the federal and state legislatures have carved an exception. (Id. at p. 771.)
In a supplemental brief, appellant attacks the application of section 1108 to his case as violative of federal and state ex post facto laws because the prior sexual offenses introduced as propensity evidence were committed before enactment of section 1108. Appellant contends that retroactive application of section 1108 violates the fourth category of ex post facto principles set forth in Calder v. Bull (1798) 3 U.S. 386, 1 L. Ed. 648. In making his argument, appellant relies on Carmell v. Texas (2000) 529 U.S. 513, 146 L. Ed. 2d 577, 120 S. Ct. 1620. But Carmell dealt with the traditional situation in which ex post facto principles are applied: conviction of crimes which occurred before amendment of the statute relied upon for conviction. Here, commission of the crimes for which appellant was convicted occurred after section 1108 was passed.
Significantly, footnote 23 of Carmell states: "We do not mean to say that every rule that has an effect on whether a defendant can be convicted implicates the Ex Post Facto Clause. Ordinary rules of evidence, for example, do not violate the Clause. [Citation.] Rules of that nature are ordinarily evenhanded, in the sense that they may benefit either the State or the defendant in any given case. More crucially, such rules, by simply permitting evidence to be admitted at trial, do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome the presumption. Therefore, to the extent one may consider changes to such laws as unfair or unjust, they do not implicate the same kind of unfairness implicated by changes in rules setting forth a sufficiency of the evidence standard. Moreover, while the principle of unfairness helps explain and shape the Clauses scope, it is not a doctrine unto itself, invalidating laws under the Ex Post Facto Clause by its own force. [Citation.]" (Carmell v. Texas , supra, 529 U.S. at p. 533.)
Retroactive application of section 1108 does not fall within the fourth category of Calder because it does not require the jury to receive less or different testimony to convict a defendant of a current sex offense. Rather, section 1108 gives the jury an additional factor — prior sex offenses — that the jury may, but is not required, to consider in determining whether the People have met their burden of proof that the current sex offense was committed. Significantly, section 1108 does not alter the burden of proof or quantum of evidence required for a conviction. As the People point out, the "effect or sufficiency of the evidence is left to the jury." In contrast, the amendment of the statute at issue in Carmell permitted less evidence than the statute in effect when the crimes were committed.
Appellant argues that he was "severely prejudiced" by the admission of the sexual misconduct evidence because, he claims, this evidence is "remote, confusing, and misleading evidence. The evidence concerning the instant offenses was contradictory and weak. It is probable that the jury relied on the evidence of the other sexual conduct to convict appellant of the instant offenses." Appellant also complains about the fact that the testimony of his sister A., and the testimony of Renita C. and her daughter L., "consumed nearly one and one-half days of the total two days of the direct and cross-examination of the witnesses of the prosecutions case-in-chief. During closing argument, the prosecutor focused to a substantial degree on the propensity evidence."
Appellants arguments concern section 352. Under section 352, a trial court has broad discretion in assessing whether the probative value of particular evidence is outweighed by undue prejudice, confusion or consumption of time. (People v. Lewis (2001) 26 Cal.4th 334, 374.) The concept of "prejudice" as used in section 352 applies to evidence "which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 320, 956 P.2d 374.) We do not disturb the trial courts discretionary ruling under section 352 absent an abuse of discretion. (People v. Lewis, supra, 26 Cal.4th at p. 374.)
The prior sexual offense evidence introduced here was relevant to the instant sexual offenses given the similarities between the prior uncharged sex acts and the current charges. Except for the prior offense against the out-of-state minor L., all the offenses were committed against prepubescent female family members when no one else was in the room; all the offenses were committed in the homes where the victims were living at the time; and the victims were often in their nightwear. While the acts against the victims Aunt A. occurred years earlier, evidence of prior sexual misconduct which occurred several years before the charged offense was held not to be unduly prejudicial in People v. Soto (1998) 64 Cal.App.4th 966, 991.
As the People note, appellants actions shared what appeared to be an intent for appellant to put himself in a position of molesting the young girls in a private home for his own sexual gratification. While prior sexual offense evidence in a sexual offense case obviously is prejudicial against the defendant, it is the type of evidence that the California Legislature contemplated in enacting section 1108. Appellant has failed to show that the trial court abused its discretion in admitting the evidence.
CALJIC Nos. 2.50.01, 2.50.1 and 2.50.2
Appellant contests the trial courts decision to instruct the jury on CALJIC No. 2.50.01, which was given in connection with CALJIC Nos. 2.50.1 and 2.50.2.
The court gave the following 1999-revised version of CALJIC No. 2.50.01: "Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense other than that charged in the case. [P] Sexual offense means a crime under the laws of a state or of the United States that involves any conduct made criminal by Penal Code Section 288, subdivision (a). The elements of this crime are set forth elsewhere in these instructions. [P] If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crimes of which he is accused. [P] However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes. The weight and significance of the evidence, if any, are for you to decide. [P] You must not consider this evidence for any other purpose."
CALJIC No. 2.50.1 states: "Within the meaning of these instructions, the prosecution has the burden of proving by a preponderance of the evidence that a defendant committed a sexual offense other than those for which he is on trial. [P] You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that a defendant committed the other sexual offense."
CALJIC No. 2.50.2 defines the term "preponderance of the evidence" as "evidence that has more convincing force that that opposed to it. If the evidence is so evenly balanced that you are unable to find that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it. [P] You should consider all of the evidence bearing upon every issue regardless of who produced it."
Citing the 1999 revised version of CALJIC No. 2.50.01, Falsetta approved of the use of this instruction in a case where prior sex offense evidence is admitted under section 1108. (People v. Falsetta, supra, 21 Cal.4th at pp. 920, 922.) The Court opined that CALJIC No. 2.50.01 "will help assure that the defendant will not be convicted of the charged offense merely because the evidence of his other offenses indicates he is a bad person with a criminal disposition." (Id. at p. 920.) The Supreme Court recently affirmed use of this revised version in People v. Reliford (2003) 29 Cal.4th 1007, 1016.
CALJIC No. 17.41.1
Appellant also challenges the trial courts use of CALJIC No. 17.41.1, arguing that the instruction violated his federal and state constitutional rights. The court gave the 1998 version of the jury instruction as follows: "The integrity of a trial requires that all jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on any improper basis, it is the obligation of the other jurors to immediately inform the Court." Subsequent to appellants briefing, our Supreme Court denied federal and state constitutional challenges against this version of CALJIC No. 17.41.1 in People v. Engelman (2002) 28 Cal.4th 436, 439-440.
Parole Revocation Fine
Appellant argues that the trial court violated the constitutional ban on ex post facto laws when it imposed the parole revocation fine under Penal Code section 1202.45 because that statute did not go into effect until 1995, after the instant offenses were committed.
Respondent concedes the merit of appellants argument that imposition of a parole revocation fine under Penal Code section 1202.45 here was a violation of ex post facto principles. (People v. Callejas (2000) 85 Cal.App.4th 667, 678.)
DISPOSITION
The judgment is affirmed except as to the parole revocation fine, which is to be stricken, with the abstract of judgment to be modified to reflect the striking of the fine.
We concur: 17 VOGEL (C.S.), P.J., and EPSTEIN, J.