Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05WF1500 David A. Thompson, Judge.
Paul R. Ward, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Bradley A. Weinreb and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
A jury found Jerry Lee Smithley guilty of two counts of committing a lewd act on a child under 14 years of age in violation of Penal Code section 288, subdivision (a) (section 288(a)). The charged offenses occurred in 1988. The jury found true the allegations pursuant to Penal Code section 803, former subdivision (g)(1), and, therefore, the offenses were subject to an extension of the otherwise expired statute of limitations. The trial court sentenced Smithley to the middle term of six years on one count and a consecutive term of two years on the other count, for a total term of eight years.
The appellate briefs, the information, the jury instructions, and the verdicts refer to Penal Code section 803, former subdivision (g)(1) as the relevant tolling provision. In 2005, section 803 was rewritten to make subdivision (g) part of subdivision (f). (See Historical and Statutory Notes, 50 pt. 1 West’s Ann. Pen. Code (2008 ed.) foll. § 803, p. 271.) The complaint in this case was filed on May 11, 2005, apparently before these changes went into effect. Section 803, former subdivision (g)(1) and section 803, subdivision (f)(1) are substantively the same; their differences have no bearing on this case.
Smithley makes three arguments in support of reversal: First, he argues the trial court’s jury instruction on extending the statute of limitations under Penal Code section 803, former subdivision (g) erroneously defined the term “substantial sexual conduct” to include self masturbation and it failed to define the term “independent evidence.” Second, he argues the trial court erred by admitting evidence of uncharged acts of indecent exposure as propensity evidence under Evidence Code section 1108 or as evidence of motive, opportunity, intent, preparation, plan, or knowledge under Evidence Code section 1101, subdivision (b). Third, he argues Penal Code section 803, former subdivision (g) is a substantive limitation on a charged offense and therefore the jury should have been instructed that to find him guilty of the substantive offense of committing a lewd act on a child under the age of 14, it had to find beyond a reasonable doubt that the crime involved substantial sexual conduct and that independent evidence corroborated the crime.
We affirm. As to the first argument, the jury instruction on extending the statute of limitations under Penal Code section 803, former subdivision (g) was erroneous, but, we conclude, the error was harmless beyond a reasonable doubt.
As to the second argument, we conclude the evidence of indecent exposure was relevant and admissible under Evidence Code section 1108. People v. Earle (2009) 172 Cal.App.4th 372 (Earle), relied on by Smithley, is distinguishable. Even if the evidence of indecent exposure was inadmissible, the error was harmless under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
As to the third argument, statutory language and case law confirm that Penal Code section 803, former subdivision (g) applies only to extending the statute of limitations and is not a substantive limitation on the charged offenses.
Allegations of the Information
The information accused Smithley of two counts of committing a lewd and lascivious act on Jane Doe, a child under 14 years of age, sometime in 1988. The information alleged an extension of the statute of limitations as follows: “It is further alleged within the meaning of California Penal Code section 803[, former subdivision ](g)(1) that the offenses set forth in Counts 1 through 2 were committed against Jane Doe while she was under the age of 18, and that the crimes were first reported to a California law enforcement agency on May 12, 2004 when Jane Doe was over 21 years of age, and that a criminal complaint was filed on or about May 11, 2005, which is within one year of the report. The acts committed by the defendant against Jane Doe constitute substantial sexual conduct as defined by Penal Code section 1203.066[, subdivision ](b). The limitation period specified in section 800 or 801 of the Penal Code has expired.”
The information alleged the following as independent, corroborating evidence of the allegations: “1. Jane Doe #2, the daughter of the defendant, woke up to find the defendant holding her hand around his penis with his hand masturbating the defendant. Jane Doe #2 was under the age of 10 year[]s old when this incident occurred. [¶] 2. Jane Doe #3, who is also a stepdaughter of the defendant, entered an unlocked bathroom in her home to find the defendant masturbating in the bathtub. She told him she said he should have locked the door and he replied by saying something close to ‘I know you like it[.’] Jane Doe #3 was under the age of 18 when this incident occurred. [¶] 3. The defendant also masturbated in front of Jane Doe #3 on one other occasion. Jane Doe #3 was under the age of 18 when this incident occurred.”
Facts
We view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303.)
I.
The Charged Crimes
Smithley married Susan M. in July 1982. Susan M. had a daughter, April L. (Jane Doe #1), who was about five years of age at the time Smithley and Susan M. married. April L. lived with Smithley and Susan M. in their apartment in Westminster. Smithley had two children of his own, Randy S. and Barbara S. (Jane Doe #2), who lived with Smithley and Susan M. every other weekend and during the summer.
T.K. and her husband lived in the same apartment complex. They were friendly with Smithley and his family, and T.K. occasionally babysat April L. T.K. testified she “constantly” saw Smithley expose himself. At the time, T.K. was “quite naïve” and believed “it was just accidental.” According to T.K., Smithley once answered his door while naked, and he would sit or stand naked near a window. When children played outside, Smithley would leave his apartment and walk into the garage. On one occasion, T.K. saw Smithley in the garage, sitting on a stool, with his penis exposed. Susan M. testified that Smithley would expose himself through their apartment window.
When April L. was a child, Smithley would expose himself in front of her or wear revealing shorts. Sometimes, while April L. was in the living room, Smithley would masturbate in the bedroom with the door open or masturbate in the doorway. When April L. was five or six years old, in about 1983, Smithley showed her pornographic magazines and videotapes. Once, he watched pornographic videotapes in front of April L. and asked her to help him masturbate. Smithley continued to expose and masturbate himself in front of April L. when she was six and seven years old. When April L. was seven or eight years old, Smithley got on top of her while she was sleeping, and she could feel his penis pushing against her vagina. April L. kept pushing him off until he gave up and left the room. He told her not to say anything to her mother because he “could make her cancer come back.”
Smithley molested April L. over a period of time from January to May 1988, when she was 10 years old. He made April L. touch his penis and masturbate him (count 1). At least once a week, April L. would wake up in the night to find herself holding her hand around his penis. Smithley also would molest April L. by placing his penis in her mouth (count 2). In March or April 1988, April L. awoke to find Smithley trying to put his penis in her mouth. She clenched her teeth to stop him.
Smithley and Susan M. separated in May 1988. Susan M. and April L. first moved into another apartment in the complex and later moved out of the complex altogether. April L. tried to block out her memories of being molested by Smithley. She remembered the molestations but did not remember the details until she underwent counseling.
Smithley moved to Corona and eventually married Carol S., who had a daughter, Sarah I. (Jane Doe #3), born in 1987. In 1994 or 1995, April L. (then around 15 years of age) lived with Smithley, Carol S., and Sarah I. When Smithley drove April L. and her friends, Katie S. and Kathy M., in his truck, he would unbutton his jeans and “his penis would come out of his pants.” April L.’s friends, Katie S. and Kathy M., both testified they recalled Smithley exposing his penis while they rode in his truck. April L. eventually told Carol S. that Smithley had molested her.
II.
Corroborating Evidence
A. Incident No. 1
April L. testified that Barbara S. (Jane Doe #2) told her: “[W]hen [Smithley] first moved into the one bedroom apartment, the first apartment [in Westminster], that she remembered waking up after sleeping on the couch and that he had her hand on his penis.” This conversation took place during or before 2000.
In 2005, Barbara S. told a police detective that Smithley took her hand and used it to masturbate himself. The police detective testified that Barbara S. told him, “he [Smithley] had taken her hand one night and put it up against his penis and was masturbating himself as he held her hand against his penis.” Barbara S. told the police detective “she was 50 percent certain that happened.”
At trial, Barbara S. denied that Smithley had ever used her hand to masturbate himself or ever telling that to April L. Barbara S. claimed that once, while Smithley was asleep, she accidentally grabbed his penis while reaching for his hand. Barbara S. claimed the police report was false, but did admit that Smithley told her he had a problem in that he would expose himself.
B. Incident No. 2
Sarah I. lived out of state and gave her testimony at a video recorded conditional examination in December 2008. The parties stipulated Sarah I. was unavailable to testify at trial and therefore an edited version of her video recorded examination was played for the jury. The examination also was reported, and a transcript of the edited examination was received in evidence.
Sarah I. testified she was interviewed by police officers and a social worker in 2004. They asked her about two incidents in which Smithley had exposed himself. Sarah I. told them that in 2004, when she was 16 years old, she walked into the bathroom and found Smithley masturbating in the bathtub. She told him he should lock the door and left. Sarah I. told the social worker that Smithley replied, “I know you like to watch me, ” while at the examination, she testified that Smithley replied, “I don’t like to lock the door.”
C. Incident No. 3
Sarah I. also testified to an incident that occurred in early 2004, when she was 16 years old, while she practiced driving Smithley’s truck. Sarah I. was alone in the truck. It was dark and the truck’s headlights were on. As Sarah I. drove, the headlights illuminated Smithley standing in a doorway and masturbating.
Discussion
I.
Any Errors in the Statute of Limitations Jury Instruction Were Harmless.
The charged crimes in this case occurred in 1988. The jury found true the allegations necessary to extend the statute of limitations pursuant to Penal Code section 803, former subdivision (g)(1). The trial court gave the jury an instruction, prepared by the prosecution, concerning the facts necessary to make that finding. Smithley argues that instruction was erroneous in two ways: (1) it defined the term “substantial sexual conduct” to include self masturbation and (2) it failed to define the term “independent evidence” corroborating April L.’s allegation.
We conclude the instruction was erroneous-the Attorney General concedes this-but the error was harmless beyond a reasonable doubt.
A.
Penal Code Section 803, Former Subdivision (g)
Penal Code section 803, former subdivision (g)(1) provided: “Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section 261, 286, 288, 288a, 288.5, 289, or 289.5.” (Historical and Statutory Notes, 50 pt. 1 West’s Ann. Pen. Code, supra, foll. § 803, p. 271.)
Penal Code section 803, former subdivision (g)(2) provided: “This subdivision applies only if all of the following occur: [¶] (A) The limitation period specified in Section 800, 801, or 801.1, whichever is later, has expired. [¶] (B) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual. [¶] (C) There is independent evidence that corroborates the victim’s allegation. If the victim was 21 years of age or older at the time of the report, the independent evidence shall clearly and convincingly corroborate the victim’s allegation.” (Historical and Statutory Notes, 50 pt. 1 West’s Ann. Pen. Code, supra, foll. § 803, p. 271, italics added.)
Penal Code section 803, former subdivision (g)(3) provided: “No evidence may be used to corroborate the victim’s allegation that otherwise would be inadmissible during trial. Independent evidence does not include the opinions of mental health professionals.” (Historical and Statutory Notes, 50 pt. 1 West’s Ann. Pen. Code, supra, foll. § 803, p. 271.)
Penal Code section 1203.066, subdivision (b) states: “‘Substantial sexual conduct’ means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender.”
B.
Instructional Error in Defining “Substantial Sexual Conduct” Was Harmless.
The trial court read to the jury a special instruction on the statute of limitations that was prepared by the prosecution. That instruction read, in part: “If you find the defendant guilty beyond a reasonable doubt of the crimes charged in Counts 1 and 2, then pursuant to Penal Code section 803[, former subdivision ](g)(1), you must further determine, as to each count in which you find guilt, whether the People have proved the following factual allegations by a preponderance of the evidence: [¶] 1. A criminal charging document known as a ‘complaint[, ’] accusing the defendant of the sexual crimes set forth in Counts 1 and 2 must have been filed within one year of the time [of] the reporting of these crimes to a California Law Enforcement Agency. [¶] 2. The reporting person must have alleged that they were a victim of a crime specified in Penal Code Section 288(a). [¶] 3. The crimes must also have involved substantial sexual conduct, that is: oral copulation or masturbation. [¶] ‘Masturbation’ means any sexual touching or contact, however slight, of the genitals of either the child or the defendant, including self masturbation in the presence of the other. [¶] ‘Oral copulation’ is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Penetration is not required. [¶] 4. The complaint in this case was not filed within ten years of the crimes alleged in counts 1 and 2.” (Italics added.)
The italicized portion of the instruction was erroneous. Penal Code section 803, former subdivision (g)(2) expressly excluded “masturbation that is not mutual” from crimes involving substantial sexual conduct. “[T]he exception stated in section 803[, former subdivision ](g) refers to a defendant’s self masturbation in the presence of the victim.” (People v. Terry (2005) 127 Cal.App.4th 750, 771, citing People v. Lamb (1999) 76 Cal.App.4th 664, 677 682.)
The Attorney General agrees, “[t]he instruction wrongly explained that self masturbation could be considered to be substantial sexual conduct” but argues that Smithley forfeited or invited error because his counsel stipulated to defining “masturbation” to include self masturbation and stipulated that the crimes alleged involved substantial sexual conduct. We do not address the claim of forfeiture because we conclude the error was harmless,
For purposes of harmless error analysis, we assume the definition of masturbation was a misdescription of an element of a charged offense. “Misdescription of an element of a charged offense is subject to harmless error analysis and does not require reversal if the misdescription was harmless beyond a reasonable doubt.” (People v. Hagen (1998) 19 Cal.4th 652, 670.) “We may affirm the jury’s verdicts despite the error if, but only if, it appears beyond a reasonable doubt that the error did not contribute to the particular verdict at issue.” (People v. Sakarias (2000) 22 Cal.4th 596, 625.)
The error in defining “masturbation” to include self masturbation could not have, beyond a reasonable doubt, contributed to the jury’s verdicts. The basis for count 1 was Smithley making April L. touch his penis and masturbate him. The basis for count 2 was Smithley placing his penis in April L.’s mouth. Neither count was based on self masturbation; both involved substantial sexual conduct. The jury was given a unanimity instruction requiring it to agree unanimously on which act Smithley committed for each offense. The jury’s verdict on count 1 found Smithley guilty of committing a lewd act upon a child under 14 years of age by “April L.’s hand touching defendant’s penis.” (Some capitalization omitted.) The jury’s verdict on count 2 found Smithley guilty of committing a lewd act upon a child under 14 years of age by “April L.’s mouth touching defendant’s penis.” (Some capitalization omitted.) As the jury expressly and unanimously found Smithley was guilty for acts not amounting to self masturbation, the instructional error in defining “masturbation” was harmless beyond a reasonable doubt.
C.
Any Error in Failing to Define “Independent Evidence” Was Harmless.
As part of the statute of limitations instruction, the trial court told the jury: “You must also decide whether for each crime alleged in Counts 1 and 2, the People have proved by clear and convincing evidence the additional allegation that there is independent evidence which corroborates the allegations set forth in Counts 1 and 2. The evidence offered by the People to prove this corroboration was the alleged acts committed against Sarah [I.] and Barbara S[.] by the defendant.”
Smithley argues this portion of the instruction was erroneous because it did not explain the meaning of “independent evidence.” He asserts: “Here, ‘independent evidence’ used in [Penal Code] section 803[, former subdivision ](g) with respect to corroboration is susceptible to technical as well as colloquial meanings and the court should have defined the term for the jury. Under an ordinary meaning of ‘independent evidence[, ’] the jury was free to consider as corroboration all the testimony from witnesses who merely repeated what A[pril] L. told them of the alleged abuse.”
Any error in failing to define the term “independent evidence” was harmless beyond a reasonable doubt. The instruction expressly stated the People’s corroboration evidence concerned the alleged acts against Sarah I. and Barbara S. Thus, the instruction in effect excluded testimony merely repeating what April L. had said about Smithley abusing her. We presume the jury understood and followed the jury instruction limiting independent evidence of corroboration to evidence of the alleged acts against Sarah I. and Barbara S. (People v. Hovarter (2008) 44 Cal.4th 983, 1005.)
II.
Evidence of Uncharged Acts of Indecent Exposure Was Admissible Under Evidence Code Section 1108.
Smithley argues the trial court erred by admitting evidence of uncharged incidents in which he committed indecent exposure. The court received the evidence under both Evidence Code section 1101, subdivision (b) as evidence of motive, opportunity, intent, preparation, plan, or knowledge under Evidence Code section 1108, subdivision (a) as propensity evidence. We conclude evidence of the uncharged incidents involving indecent exposure was admissible under Evidence Code section 1108, subdivision (a). We therefore do not address whether the evidence was admissible under Evidence Code section 1101, subdivision (b) and do not address Smithley’s argument that Penal Code section 803, former subdivision (g) did not create an independent basis for admitting that evidence.
A.
Background
At the outset of trial, the prosecution filed a motion to admit evidence of uncharged sexual misconduct, including incidents in which Smithley exposed himself to T.K., Barbara S., Kathy M., Katie S., and Sarah I. The motion included an offer of proof for each of those witnesses and argued the evidence was admissible pursuant to Evidence Code section 1108, subdivision (a).
The incidents involving T.K. were those in which Smithley answered the door naked and the other times she saw Smithley expose himself through his apartment window. The incidents involving Barbara S. and Sarah I. were those constituting the corroboration evidence we have described. The incidents involving Kathy M. and Katie S. were those in which Smithley exposed himself while driving in his truck.
When the motion was argued orally, the prosecutor asserted the evidence also was admissible under Evidence Code section 1101, subdivision (b) to show a common plan or scheme and lack of accident or mistake, and under Penal Code section 803, former subdivision (g) to corroborate April L.’s testimony. The prosecutor argued: “[T]his evidence should come in anyways under [section] 803[, former subdivision ](g). So there’s no prejudice of it coming in under [Evidence Code section] 1108, because the evidence is already going to come out.” Smithley’s counsel objected to admitting the evidence of the uncharged acts of sexual misconduct on the grounds they were remote in time, not sufficiently similar to the charged offenses, involved girls of different ages from April L. at the time she was abused, and the probative value of the evidence was outweighed by its prejudice.
The trial court considered the prosecution’s offer of proof as to each witness, starting with T.K. After hearing argument, the court ruled: “With regard to the [Evidence Code section] 1108 evidence. It appears to me based upon the offers of proof-and bear in mind that it’s difficult to make these types of rulings in advance. What happens at the time of trial may turn out to be different than what we all think they’re going to say at this point in time. [¶] But, based upon the offers of proof that I’ve heard and the arguments of counsel, it would appear to me the People have the better end of this argument or these arguments across the board. [¶] It seems to me that this evidence is admissible under [Evidence Code section] 1101[, subdivision ](b) and/or 1108. And it doesn’t appear to me that the probative value of any of this evidence is substantially outweighed by any of the countervailing factors. Specifically the potential for undue prejudice, possibility of confusion of the issues, the remoteness of time. [¶] In that respect, I would note while some of it is remote in time to today’s date, it would appear that conduct complained of is not as remote in time to the date of the charged offenses. And it doesn’t appear to me that any of this is going to involve an-let me cite the language of the statute-‘undue consumption of time when weighed against its probative value.’ [¶] So tentatively, I would find that all of this [section] 1108, 1101 evidence is admissible over the defense objection.... [¶] And, I am particularly persuaded that in some of the instances there appears to be a crossover to the [Penal Code section] 803 issues, which is a factor that I’ve considered when I’m doing the calculus required under [Evidence Code section] 352, in terms of its probative value. People are specifically required to prove evidence of some corroborating-they’re required to put on some corroborating evidence as we noted in our discussions. Cases say[] even evidence of acts with other persons is corroborative evidence for [section] 803 purposes. [¶] So, for all of those reasons[, ] tentatively I’m inclined to allow all of this [section] 1108 evidence in.”
Smithley argues the trial court failed to address the offer of proof as to April L.’s testimony and thereby failed to exercise discretion. The prosecution’s motion did not include April L.’s testimony of uncharged acts of sexual misconduct. The motion has a section entitled “The Present Case, ” the purpose of which apparently was to provide background information for the court. Smithley interprets that section as an offer of proof on April L.’s testimony, but his trial counsel did not view it that way and, in orally arguing the motion, never mentioned April L.’s testimony of Smithley’s uncharged acts of sexual misconduct against her. When reviewing the motion with counsel, the trial court stated, “let’s start with the incidents with T[.]K., ” a sensible approach, for T.K. is the first witness identified by heading in the motion. Smithley’s counsel did not correct the court. When April L. testified to uncharged acts of sexual misconduct by Smithley, his counsel did not object.
B.
Evidence Code Section 1108The trial court concluded the evidence of uncharged sexual acts was relevant and admissible under Evidence Code section 1101 or 1108. Section 1108, subdivision (a) provides: “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.” The Legislature enacted section 1108 to expand the admissibility of propensity evidence in sex offense cases and to relax the evidentiary restraints imposed by section 1101, subdivision (b). (People v. Abilez (2007) 41 Cal.4th 472, 502.)
“By reason of [Evidence Code] section 1108, trial courts may no longer deem ‘propensity’ evidence unduly prejudicial per se, but must engage in a careful weighing process under [Evidence Code] section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (People v. Falsetta (1999) 21 Cal.4th 903, 916 917.)
“Evidence Code section 1108 expressly reserves the trial court’s power to exclude evidence as more prejudicial than probative under Evidence Code section 352, a matter over which the trial court exercises broad discretion.” (People v. Wilson (2008) 44 Cal.4th 758, 797.) 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.”
C.
Evidence of the Uncharged Acts of Indecent Exposure Was Admissible Under Evidence Code Section 1108 to Show Propensity.
Smithley argues that evidence of his acts of indecent exposure was inadmissible under Evidence Code section 1108 to prove propensity because the prosecution presented no foundational evidence to permit a reasoned inference that propensity to commit indecent exposure demonstrates a propensity to commit lewd acts on a child under 14 years of age. In making that argument, he relies on Earle, supra, 172 Cal.App.4th 372.
1. Earle
In Earle, supra, 172 Cal.App.4th at page 378, the defendant was charged in one case with indecent exposure and in a separate case with sexual assault. The charges arose from distinct and dissimilar incidents. The trial court nonetheless consolidated the two cases for trial. (Ibid.) Evidence of the indecent exposure charge was strong, and the defendant tacitly conceded it. Evidence of sexual assault was, however, considerably weaker. (Ibid.) Because the cases had been consolidated for trial, strongly incriminating evidence of indecent exposure was presented to the same jury that had to decide the sexual assault charge. (Id. at p. 379.)
The majority opinion was by Presiding Justice Rushing, with whom Justice Premo concurred. Justice Mihara dissented. A petition for review was denied, with Justices Chin and Corrigan voting to grant review.
An issue on appeal was whether the evidence of indecent exposure was “cross-admissible” under Evidence Code section 1101 or 1108 to prove the sexual assault charge. (Earle, supra, 172 Cal.App.4th at pp. 388 389.) The majority in Earle concluded the evidence inadmissible under either code section. After discussing Evidence Code section 1101, the majority in Earle addressed whether evidence of indecent exposure was admissible under Evidence Code section 1108 to show the defendant had a propensity to commit sexual assault. (Earle, supra, 172 Cal.App.4th at p. 396.) The court explained section 1108 does not permit a trial court to admit evidence of any prior sex offense a defendant commits; instead, the trial court must consider other factors bearing on relevance, including similarity to the charged offense. (Earle, supra, 172 Cal.App.4th at p. 397, citing People v. Abilez, supra, 41 Cal.4th at p. 502.) “[T]he ‘lack of similarity’ between charged and uncharged offenses can be enough by itself to justify an exclusion of the latter in an exercise of the trial court’s discretion.” (Earle, supra, 172 Cal.App.4th at p. 397.)
The majority explained that evidence of an indecent exposure might be admissible in a second prosecution for indecent exposure on the rationale the commission of the first crime supports an inference the defendant is predisposed to such conduct. (Earle, supra, 172 Cal.App.4th at p. 397.) But, “[i]n order for evidence of another crime to be relevant under Evidence Code section 1108, it must have some tendency in reason to show that the defendant is predisposed to engage in conduct of the type charged.” (Ibid.)
The majority in Earle asked: “Does the commission of indecent exposure rationally support an inference that the perpetrator has a propensity or predisposition to commit rape?” (Earle, supra, 172 Cal.App.4th at p. 398.) The answer: “Not without some kind of expert testimony, it does not.” (Ibid.) The majority in Earle concluded: “On the evidence actually before the jury, defendant’s commission of indecent exposure was simply irrelevant to the assault charge, i.e., it had no tendency in reason to show that he committed the latter offense. As we have said, Evidence Code section 1108 does not purport to make irrelevant evidence relevant. It therefore furnished no justification to admit the indecent exposure in a separate trial of the assault.” (Id. at p. 400.)
The dissenting opinion in Earle concluded that the defendant “was not denied due process by the joint trial of the indecent exposure and assault offenses.” (Earle, supra, 172 Cal.App.4th at p. 412 (dis. opn. of Mihara, J.).) The dissenting opinion also concluded the cases were properly consolidated because the question of consolidation depended on whether the crimes of indecent exposure and assault with the intent to commit rape were in the same “class of crimes or offenses” within the meaning of Penal Code section 954. The dissent also explained that both crimes shared “sexual motivation.” (Earle, supra, 172 Cal.App.4th at p. 418 (dis. opn. of Mihara, J.).)
Finally, as most relevant here, the dissenting opinion concluded the evidence of indecent exposure was cross admissible in the assault charge under Evidence Code sections 1101, subdivision (b) and 1108. (Earle, supra, 172 Cal.App.4th at pp. 419 420 (dis. opn. of Mihara, J.).) The dissenting opinion noted the indecent exposure evidence was “probative on the specific intent element of the assault count, ” and asserted it was “simply not true, as the majority asserts, that the jury lacked a rational basis for drawing a relevant inference in the absence of expert testimony that it was more likely than not that an exhibitionist, in the abstract, would commit rape.” (Id. at pp. 420, 421 (dis. opn. of Mihara, J.).) The dissenting opinion stated the trial court did not abuse its discretion in admitting the evidence and denying the defendant’s severance motion. (Id. at pp. 419, 421 (dis. opn. of Mihara, J.).)
2. Earle Is Distinguishable.
Smithley argues the reasoning of Earle applies to this case despite its different procedural posture. He argues that, under Earle, evidence of uncharged acts of indecent exposure was inadmissible to prove his propensity to commit the different crime of committing a lewd act upon a child under the age of 14. For the same reason, he argues, evidence of indecent exposure was inadmissible to corroborate April L.’s allegations.
The Attorney General does not cite, much less address Earle, even though that case is the centerpiece of Smithley’s argument on evidence of uncharged acts of indecent exposure. In a footnote in the respondent’s brief, the Attorney General brushes off the issue of similarity between the charged and uncharged offenses by stating such similarity “may be a factor” but “is not dispositive.” Although the Attorney General’s failure to address Earle is inexcusable, we decline to conclude the argument has been forfeited.
We do not disagree with the majority opinion in Earle as a general proposition. But, we face different facts and must address a different issue: Whether Smithley’s acts of indecent exposure and masturbation in front of children rationally support an inference that Smithley had a propensity or predisposition to commit a lewd act on a child under 14 years of age. Under the circumstances of this case, we conclude it does. Earle is distinguishable because it involved only a single act of indecent exposure. Here, in contrast, there was evidence Smithley engaged in numerous acts of indecent exposure, many before young girls and often involving self-masturbation. T.K. testified to incidents in which Smithley exposed himself through his apartment window and answered the door in the nude; Katie S. and Kathy M. testified to incidents in which Smithley exposed his penis while in his truck; and Sarah I. testified to interrupting Smithley while he was masturbating in the bathtub and to another incident while she drove Smithley’s truck in which the headlights illuminated Smithley masturbating in a doorway. Such numerous and persistent acts of indecent exposure and masturbation are quantitatively and qualitatively different from the evidence in Earle and support an inference that Smithley had a propensity to commit lewd acts against children. As the dissent in Earle points out, the jury should be able to make their own rational inference based on the evidence.
3. Uncharged Acts of Sexual Misconduct Against Barbara S. and April L.
Earle, in any case, does not extend to evidence that Smithley molested Barbara S. or to April L.’s testimony about uncharged acts of sexual misconduct. In 2005, Barbara S. told a police detective that Smithley took her hand and used it to masturbate himself. Because this evidence shows Smithley molested Barbara S. in the same or similar way he molested April L., the evidence was relevant in showing propensity. The trial court did not abuse its discretion in determining the probative value of that evidence was not substantially outweighed by the risk of undue prejudice.
In addition to the charged acts of sexual abuse, April L. testified to other incidents in which Smithley stuck his penis in her mouth or had her masturbate him. She testified to an incident in which he got on top of her and placed his penis against her vagina. This evidence was highly relevant propensity evidence under Evidence Code section 1108 because it concerned the same or similar conduct, and against the same victim, as the charged crimes.
April L.’s testimony was not included in the prosecution’s pretrial motion and was not mentioned during argument on the motion. Smithley’s counsel did not object to the testimony during trial. The trial court therefore did not have the opportunity to exercise its discretion under Evidence Code section 352. The evidence was highly probative, and the trial court likely would have concluded, as we do now, that its probative value was not substantially outweighed by the risk of undue prejudice.
D.
Prejudice
We further conclude the trial court’s decision to admit evidence of the uncharged acts of indecent exposure, if erroneous, did not cause Smithley to suffer prejudice.
Error in the admission of propensity evidence under Evidence Code section 1108 is reviewed under the standard of Watson, supra, 46 Cal.2d 818, 836. (People v. Mullens (2004) 119 Cal.App.4th 648, 658 659; People v. Harris (1998) 60 Cal.App.4th 727, 741.) The Watson standard is whether it is reasonably probable a result more favorable to the appealing party would have been reached in absence of the error. (Watson, supra, 46 Cal.2d at p. 836.)
Any error in admitting the testimony of T.K., Katie S., Kathy M., and Sarah I. on indecent exposure was harmless under the Watson standard. The acts of indecent exposure against those witnesses were less serious than the charged offenses and therefore would not likely have inflamed the jury. (See People v. Foster (2010) 50 Cal.4th 1301, 1332.) The prosecution’s case rested primarily on the testimony of April L., and her testimony was sound and convincing. Expert psychological testimony failed to impeach her. A psychologist testifying for Smithley explained that following a traumatic event, someone is likely to remember the event but not the details. April L. testified she remembered Smithley molesting her, but did not remember the details until she underwent counseling. The psychologist testified that psychotherapy can lead patients to produce false memories of traumatic events. In 1994 or 1995, before she started counseling, April L. told her then boyfriend that Smithley had molested her. It was not reasonably probable the jury would have reached a result more favorable to Smithley if the evidence of uncharged acts of indecent exposure had been excluded.
Further, the first corroboration allegation, involving Barbara S., was sufficient to extend the statute of limitations, and she testified to conduct similar to that charged against Smithley. Evidence the defendant committed a single uncharged sexual offense against a victim who was not the victim in the charged offense is sufficient corroboration under Penal Code section 803, former subdivision (g). (People v. Mabini (2001) 92 Cal.App.4th 654, 658 659.)
Smithley argues the prosecution did not prove the first corroboration allegation by clear and convincing evidence because Barbara S. told a police detective “she was 50 percent certain that happened” and at trial she denied that Smithley had ever used her hand to masturbate himself or ever telling that to April L. The clear and convincing standard is a guide for the trial court and not a standard for appellate review. (Crail v. Blakely (1973) 8 Cal.3d 744, 750.) “The substantial evidence rule applies no matter what the standard of proof at trial. ‘Thus, on appeal from a judgment required to be based upon clear and convincing evidence, “the clear and convincing test disappears... [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent’s evidence, however slight, and disregarding the appellant’s evidence, however strong.” [Citation.]’ [Citation.]” (In re E.B. (2010) 184 Cal.App.4th 568, 578.)
Substantial evidence supported the first corroboration allegation. April L. testified that Barbara S. told her: “[W]hen [Smithley] first moved into the one bedroom apartment, the first apartment [in Westminster], that she remembered waking up after sleeping on the couch and that he had her hand on his penis.” In 2005, Barbara S. told a police detective that Smithley took her hand and used it to masturbate himself. The police detective testified that Barbara S. told him, “he [Smithley] had taken her hand one night and put it up against his penis and was masturbating himself as he held her hand against his penis.” The jury could have found that Barbara S.’s statement to April L. and the police investigator were accurate and that Barbara S. did not testify truthfully at trial.
III.
Penal Code Section 803, Former Subdivision (g) Concerns Only Extending the Statute of Limitations and Is Not a Substantive Limitation on the Offense.
Smithley argues Penal Code section 803, former subdivision (g) does not apply to extending the statute of limitations, but governs which acts of lewd conduct may be punished after the statute of limitations has expired. In other words, he argues, section 803, former subdivision (g) also governs proof at trial and acts as a substantive limitation on the crime charged. According to Smithley, that means the jury should have been instructed that to find him guilty of the substantive offense of committing a lewd act on a child under the age of 14, the jury should have been instructed it had to find beyond a reasonable doubt the crime involved substantial sexual conduct and independent evidence corroborated the crime.
The trial court instructed the jury that to convict Smithley of committing a lewd act on a child under the age of 14, the prosecution had to prove: “1. A. The defendant willfully touched any part of a child’s body either on the bare skin or through the clothing; [¶] OR [¶] B. The defendant willfully caused a child to touch her own body or the defendant’s body, either on the bare skin or through the clothing; [¶] 2. The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child; [¶] AND [¶] 3. The child was under the age of 14 years at the time of the act.” The court also instructed the jury with CALCRIM No. 301 that the testimony of a single witness can prove any fact.
Smithley’s argument runs counter to the plain language of Penal Code section 803, former subdivision (g)(1), which provided: “Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section 261, 286, 288, 288a, 288.5, 289, or 289.5.” (Historical and Statutory Notes, 50 pt. 1 West’s Ann. Pen. Code, supra, foll. § 803, p. 271.) By this language, section 803, former subdivision (g)(1) extended the time in which a criminal complaint could be filed, i.e., it extended the statute of limitations.
Penal Code section 803, former subdivision (g)(2) stated, “[t]his subdivision applies only if all of the following occur.” (Historical and Statutory Notes, 50 pt. 1 West’s Ann. Pen. Code, supra, foll. § 803, p. 271.) The term “[t]his subdivision” refers to section 803, former subdivision (g), which concerned the timeliness of the criminal complaint and extending the statute of limitations. Section 803, former subdivision (g)(2) then sets forth the requirements that (1) the limitation period specified in section 800, 801, or 801.1 has expired, (2) the crime involved substantial sexual conduct, and (3) independent evidence corroborates the victim’s allegation. If those three things occur, then the statute of limitations extension of section 803, former subdivision (g)(1) applies to the complaint. Thus, the statutory language establishes the three requirements of section 803, former subdivision (g)(2) concerned the timeliness of the criminal complaint and extending the statute of limitations, and are not requirements for proving the substantive offense of committing a lewd act on a child under 14 years of age.
Section 803 is part of Penal Code, part 2, title 3, chapter 2 entitled “Time of Commencing Criminal Actions.” Penal Code section 804 provides that “prosecution for an offense is commenced” when, among other things, “[t]he defendant is arraigned on a complaint that charges the defendant with a felony.” (Pen. Code, § 804, subd. (c).) By extending the time in which a criminal complaint may be filed, section 803, former subdivision (g) in effect extended the time in which the defendant may be arraigned and, hence, extended the time for commencing prosecution. “[T]he effect of section 803(g) is to permit prosecution of specified sexual offenses with a juvenile within the statute of limitations set forth in section 800 and 801, or within one year of the victim’s report of the offense.” (People v. Linder (2006) 139 Cal.App.4th 75, 81; see also People v. Zandrino (2002) 100 Cal.App.4th 74, 83 [“[S]ection 803(g) merely addresses when the state may prosecute certain criminal charges. It does not alter the elements of these offenses, or their punishment”].)
In arguing Penal Code section 803, former subdivision (g) is not an extension of the statute of limitations, Smithley finds significant the absence from that subdivision of language such as “no prosecution shall be commenced.” While the Legislature decided in other statute of limitations or tolling statutes to refer to commencement of prosecution, the Legislature’s decision to refer to the filing of the complaint in section 803, former subdivision (g) does not mean the Legislature intended to create a substantive limitation on the offense rather than an extension of the statute of limitations. As we have explained, the language and effect of section 803, former subdivision (g) are to extend the time in which the prosecution may be commenced.
In People v. Linder, supra, 139 Cal.App.4th at pages 81 82, the defendant argued the prosecution was required to prove the allegations extending the statute of limitations under Penal Code section 803, former subdivision (g) by proof beyond a reasonable doubt because that code section either was an element of the offense or should have been treated as one. The Court of Appeal rejected that argument. The court concluded section 803, former subdivision (g) is a statute of limitations, not an element of the offense, and therefore is subject to the preponderance of the evidence and clear and convincing evidence burdens of proof. (People v. Linder, supra, 139 Cal.App.4th at pp. 81 85.)
As an extension of the statute of limitations, Penal Code section 803, former subdivision (g) is not an element of any offense. “[T]he statute of limitations is not an ‘element’ of the offense insofar as the ‘definition’ of criminal conduct is concerned.” (People v. Frazer (1999) 21 Cal.4th 737, 760, fn. 22, overruled on other grounds in Stogner v. California (2003) 539 U.S. 607, 609-610.) “Although the right to maintain the action is an essential part of the final power to pronounce judgment, that right ‘constitutes no part of the crime itself.’ [Citation.]” (People v. Linder, supra, 139 Cal.App.4th at p. 84.)
The substantive offense of committing a lewd act on a child under the age of 14 includes no requirement of substantial sexual conduct or independent corroborating evidence. Penal Code section 288(a) defines the crime as follows: “Except as provided in subdivision (i), any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, 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....” The requirements of Penal Code section 803, former subdivision (g)(2), which concern only the timeliness of the complaint under former subdivision (g)(1), do not modify the statutory elements of committing a lewd act on a child under the age of 14 years.
In People v. Riskin (2006) 143 Cal.App.4th 234, 237 (Riskin), the trial court gave a jury instruction on extending the statute of limitations under Penal Code section 803, former subdivision (g) that was nearly identical to the instruction given in this case. The defendant in Riskin argued that instructing the jury on preponderance of the evidence and clear and convincing evidence as the burdens of proof for findings under section 803, former subdivision (g) denied him constitutional due process and guarantees of proof beyond a reasonable doubt. (Riskin, supra, 143 Cal.App.4th at p. 238.) The Court of Appeal rejected that argument on four grounds. First, the court concluded that none of the facts relevant to extension of the statute of limitations was a fact necessary to the crimes with which the defendant was charged, including Penal Code section 288(a). (Riskin, supra, 143 Cal.App.4th at p. 240.) “‘Although the right to maintain the action is an essential part of the final power to pronounce judgment, that right “constitutes no part of the crime itself.” [Citation.]’” (Id. at pp. 240 241.)
Second, the court concluded, facts necessary to extend the statue of limitations under Penal Code section 803, former subdivision (g) did not establish or increase the level of punishment, and therefore did not require proof beyond a reasonable doubt under Apprendi v. New Jersey (2000) 530 U.S. 466. (Riskin, supra, 143 Cal.App.4th at p. 241.) The court reiterated, “[t]he facts at issue in extension of the statute of limitations and independent corroboration of the children’s accusations, however, are neither elements of the crime nor facts that establish punishment.” (Ibid.)
Third, the court concluded, “the statute of limitations is not an ingredient of an offense but a substantive matter for which the prosecution’s burden of proof is a preponderance of the evidence [citations].” (Riskin, supra, 143 Cal.App.4th at p. 241.) Finally, the court concluded, both California case law and statutory law designated preponderance of the evidence as the standard of proof for statute of limitations issues. (Ibid.)
Smithley argues Riskin is not relevant here because it “did not address the role of substantial sexual conduct in determining what lewd acts may be punished after the normal statute of limitations expires.” To the contrary, Riskin is highly relevant because it concluded that factual issues under Penal Code section 803, former subdivision (g) concern only extending the statute of limitations, are not elements or ingredients of a substantive offense, and are not necessary to the substantive offense under Penal Code section 288(a). That conclusion is directly applicable to Smithley’s contention that the trial court had to instruct the jury it could not convict him under section 288(a) unless the prosecution proved beyond a reasonable doubt he committed an act of substantial sexual conduct and April L.’s testimony was corroborated. Such instructions would have been improper because, as the Riskin court concluded, the factual issues under section 803, former subdivision (g)(2) are not elements of the offense or necessary for a conviction under section 288(a). The Riskin court concluded, and we agree, preponderance of the evidence is the burden of proof under section 803, former subdivision (g) because it concerns only the timeliness of the complaint and extending the statute of limitations.
Smithley argues that interpreting Penal Code section 803, former subdivision (g) as pertaining only to the timeliness of the complaint could lead to a situation in which the statute of limitations is extended for conduct amounting to less than substantial sexual conduct. That result might arise, Smithley argues, when the victim alleges the defendant committed lewd acts against her when she was a child, and the allegations include some acts that involved substantial sexual conduct and others that do not. In that situation, he argues: “[T]he jury may decide the prosecution proved allegations of substantial sexual conduct by a preponderance of the evidence but not beyond a reasonable doubt. The jury may also decide the complaining witness’s allegations of other lewd acts not amounting to substantial sexual conduct are true beyond a reasonable doubt. Based on these two decisions about the evidence, the jury would be compelled to conclude, 1) that the People filed the case within the extended filing period and 2) that the defendant was guilty of violating [Penal Code] section 288(a), but only for the less serious lewd acts.”
The situation Smithley predicts could not occur under the instructions given here because they required the jury first to determine whether Smithley was guilty of the charged crimes of violating Penal Code section 288(a). The statute of limitations instruction starts by stating, “[i]f you find the defendant guilty beyond a reasonable doubt of the crimes charged in Counts 1 and 2.” If the jury had found Smithley not guilty, then the jury would not have reached the statute of limitations issue. If the jury had not yet determined guilt or innocence, then the statute of limitations instructions told the jury to make that determination first.
Smithley argues that if Penal Code section 803, former subdivision (g) required corroboration only for determining whether the complaint was timely filed, then the trial court erred by instructing the jury on corroboration because the timeliness of a complaint must be decided before trial by the court. Smithley is incorrect. “The prosecution bears the burden of pleading and proving the charged offense was committed within the applicable period of limitations. [Citation.] Where the pleadings do not show as a matter of law the prosecution is time-barred, the statute of limitations becomes an issue for the jury (trier of fact) if disputed by the defendant. [Citations.]” (People v. Linder, supra, 139 Cal.App.4th at p. 84.)
The trial court instructed the jury that to convict Smithley of committing a lewd act on a child under the age of 14, the prosecution had to prove: “1. A. The defendant willfully touched any part of a child’s body either on the bare skin or through the clothing; [¶] OR [¶] B. The defendant willfully caused a child to touch her own body or the defendant’s body, either on the bare skin or through the clothing; [¶] 2. The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child; [¶] AND [¶] 3. The child was under the age of 14 years at the time of the act.” The court also instructed the jury with CALCRIM No. 301 that the testimony of a single witness can prove any fact.
Disposition
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.
Smithley argues that because Penal Code section 803, former subdivision (g) is a substantive limitation on the crime charged, the court’s elements instruction was incorrect because paragraphs 1.A. and 1.B. of that instruction should have been drafted to encompass only substantial sexual conduct. He also he argues CALCRIM No. 301 should have been modified to state the testimony of a single witness can prove any fact, except for the testimony of April L., which had to be corroborated.