Opinion
A151329
05-02-2018
THE PEOPLE, Plaintiff and Respondent, v. DONALD DUANE SPARKS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR319269)
Donald Duane Sparks appeals from a judgment of conviction and sentence imposed after a jury found him guilty of perpetrating multiple sex crimes on a child. He contends the trial court erred by instructing the jury, pursuant to CALCRIM No. 1191 (now CALCRIM No. 1191A), that it could consider evidence of Sparks's prior sexual acts with respect to another child if the uncharged conduct was proven by a preponderance of the evidence. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
An amended information charged Sparks with engaging in lewd conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a)) and annoying or molesting a child (§ 647.6, subd. (a)). As to both charges, it was alleged that Sparks had engaged in substantial sexual conduct with his victim (§ 1203.066, subd. (a)(8)). The matter proceeded to a jury trial.
A. Prosecution Case
The victim's mother, Somer Sparks, testified that in August 2015 she was living with her son and her four-year-old daughter, A.S. Somer's "step- grandma," Linda Ellington, watched Somer's children while Somer was at work. Somer would take the children to Ellington's house, where Ellington lived with Somer's father (appellant Sparks) and Somer's stepmother (Rhonda, Ellington's daughter). A.S. called Ellington "Grammy" and Sparks "Grandpa Don."
For clarity and without disrespect, we refer to Somer and Rhonda by their first names, since multiple witnesses share their last names.
1. Testimony of A.S.
A.S., six years old at the time of trial, testified that Sparks showed her his "crotch" twice. The first time, he exposed his crotch to A.S. and touched it while they were alone in a room at Ellington's house. The second time, Sparks was "touching" his crotch with "both hands" while they were alone in Sparks's car and A.S. was in the front seat. (A.S. stated on cross-examination that Sparks "was driving with one hand, and the other one [was] on his crotch.") Sparks told A.S. she could "touch it" if she wanted, and A.S. did so, "just put[ting] [her] finger on it." It felt hard in the center. Sparks told A.S. she could put her "mouth on it," but A.S. "didn't want to." Afterward, Sparks instructed her, "Don't tell no one."
2. Somer's Testimony
Somer testified that, on August 24, 2015, A.S. said she "saw where grandpa peed from" and she wanted to "play with it." Somer assumed that A.S. had been in the bathroom when Sparks was urinating and, "being a little kid," was curious about it. Two days later, Somer asked A.S. about "seeing where grandpa peed from," and A.S. explained that she and Sparks went to Taco Bell and, on the way home, Sparks pulled the car over, invited A.S. into the front passenger seat, and touched his penis. Sparks asked A.S. "if she wanted to put her mouth on it," and A.S. responded that "she couldn't." A.S. did not want Somer to say anything about the incident because Sparks would be angry and A.S. would not be allowed to jump on the trampoline anymore. Somer started to cry and called police.
3. Forensic Interview With A.S.
Fairfield Police Detective Michael Arimboanga was assigned to investigate A.S.'s allegations and arranged for her to participate in a forensic interview. A recording of the interview, conducted on November 12, 2015, was admitted into evidence and played for the jury.
A.S. told the interviewer, Vicki Rister, that Sparks "did a bad thing" and showed her "where he pees at." A.S. said she saw Sparks's penis two times: once in "Grammy's" (Ellington's) room, when "nobody was watching them," and once in the car when they were parked outside Taco Bell and "nobody was watching." On the latter occasion, A.S. moved from the backseat to the front seat and Sparks exposed his penis and touched it. A.S. told Rister, "Grandpa Don said, 'Grandpa Don can touch it.' And Grandpa Don said, 'You can touch it if you want to.' " A.S. did so; it was "mushy" on "the sides" but "hard" on the inside because "there's bones." A.S. said that Sparks tried to put his penis in his own mouth.
Rister showed A.S. a diagram of a male, which was admitted into evidence. Rister asked A.S. to circle the body part Sparks showed her, and A.S. circled the penis depicted on the diagram. Rister also showed A.S. a diagram of a female, which was admitted into evidence. Rister asked A.S. to circle which part of her body she used to touch Sparks's penis, and A.S. circled the hands on the diagram.
4. Sparks's Uncharged Prior Sexual Misconduct Toward His Niece, K.E.
K.E. is Sparks's niece and was 23 years old at the time of trial. As a child, she had lived with her grandmother Ellington. While Ellington was at work, Sparks would pick up K.E. from school and drive her to the home he shared with Rhonda, where they would babysit her. About half the time Sparks picked K.E. up from school, from third grade through middle school, Sparks "would pull his penis out of his pants and play with it" as he drove. K.E. remembered Sparks "stroking" his penis up and down with his hand, as if masturbating; she would look away and pretend "it wasn't happening."
K.E. never disclosed Sparks's behavior to anyone in her family until the year before Sparks's trial, when K.E.'s mother told her that Sparks had asked A.S. to put her mouth on his penis. At that point, K.E. told both K.E.'s mother and Ellington what happened to her.
B. Defense Case
The defense called Ellington, who testified that K.E. had told her that Sparks exposed himself to her, but did not specifically say that Sparks had masturbated in front of her.
C. Jury Verdict and Sentence
The jury convicted Sparks of both charged counts and found true the allegation of substantial sexual conduct. The court sentenced him to state prison for six years. This appeal followed.
II. DISCUSSION
Evidence Code section 1101 limits the admissibility of a defendant's uncharged misconduct. However, "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." (Evid. Code, § 1108, subd. (a).)
CALCRIM No. 1191 generally authorized the jury to consider evidence of a defendant's uncharged sexual misconduct as tending to prove his propensity to commit sexual offenses, if the prosecutor had proved the uncharged misconduct by a preponderance of the evidence. Sparks contends the court's instruction in this case deprived him of due process.
A. Jury Instruction
Before K.E. testified, and again before closing arguments, the court instructed the jury as follows, based on CALCRIM No. 1191: "The People are going to present evidence that the defendant committed the crime of child molesting that was not charged in this case. [¶] 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. Proof by a preponderance of the evidence is a different burden of proof 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 the 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 a lewd act on a child and child molesting as charged here. If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendant is guilty. [¶] You may also consider this evidence to prove intent and the absence of mistake or accident. Do not consider this evidence for any other purpose. The weight to be given to this evidence is for you to decide. [¶] The People must still prove each charge and allegation beyond a reasonable doubt." (Italics added.)
The court modified the pattern instruction in CALCRIM No. 1191 to also include intent and absence of mistake or accident as permissible uses for the prior misconduct evidence, pursuant to Evidence Code section 1101, subdivision (b). Sparks has no independent challenge to this aspect of the instruction. In any event, for the purposes set forth in Evidence Code section 1101, subdivision (b), as well as for the purposes set forth in Evidence Code section 1108, the uncharged misconduct need only be proven by a preponderance of the evidence. (People v. Carpenter (1997) 15 Cal.4th 312, 382, overruled on other grounds in People v. Diaz (2015) 60 Cal.4th 1176, 1190.)
Sparks's trial counsel did not object to the instruction, but Sparks contends he may challenge it now because the instruction reduced the prosecutor's burden of proof, thus affecting a fundamental constitutional right. (See People v. Salcido (2008) 44 Cal.4th 93, 155.) We will proceed to the merits.
B. Analysis
"Errors in jury instructions are questions of law, which [appellate courts] review de novo." (People v. Jandres (2014) 226 Cal.App.4th 340, 358.) The court must view the challenged portion of the instruction "in the context of the instructions as a whole and the trial record" to determine " 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." (Estelle v. McGuire (1991) 502 U.S. 62, 72.)
Over a decade ago, our Supreme Court decided that uncharged sexual offenses could be proven by a preponderance of the evidence. In People v. Reliford (2003) 29 Cal.4th 1007, the court held that the predecessor instruction to CALCRIM No. 1191—CALJIC No. 2.50.01—properly allowed the jury to find that a defendant committed uncharged sexual offenses if they were proved by a preponderance, rejecting the defendant's argument that the instruction would mislead the jury regarding the prosecutor's burden of proof. (Id. at pp. 1012, 1015-1016.) The court concluded that the prosecutor's burden to prove the charged sexual offenses beyond a reasonable doubt was not lessened, because the instruction made clear that the defendant's uncharged sexual offense was insufficient by itself to prove beyond a reasonable doubt that the defendant committed the charged sexual offenses. (Id. at pp. 1015-1016.)
CALCRIM No. 1191 is materially the same as the instruction analyzed in Reliford, and multiple appellate courts have rejected constitutional challenges to CALCRIM No. 1191 on similar grounds. (See, e.g., People v. Anderson (2012) 208 Cal.App.4th 851, 895-896 (Anderson); People v. Cromp (2007) 153 Cal.App.4th 476, 479-480; People v. Schnabel (2007) 150 Cal.App.4th 83, 87.)
Here, the court's instruction stated clearly that Sparks's uncharged sex crime was not sufficient in itself to prove the charged offenses, and that the prosecutor had to prove the charged offenses beyond a reasonable doubt. The instruction was not erroneous.
Sparks argues that his challenge to the instruction is different than that rejected in Reliford, urging that "Due Process is violated unless each link in the direct chain of evidence leading to guilt is proved beyond a reasonable doubt." (Citing People v. Tewksbury (1976) 15 Cal.3d 953, 964-965 (Tewksbury) ["factual issues collateral to the question of the accused's guilt or innocence [that] do not bear directly on any link in the chain of proof of any element of the crime" are decided by a preponderance].) He contends his uncharged misconduct toward K.E. was a link in the direct chain of proof of his guilt of the charged offenses against A.S., because the jury was permitted to infer from the uncharged conduct that he had perpetrated the charged offenses.
The argument Sparks now raises was rejected years ago in Anderson, supra, 208 Cal.App.4th 851. There, the court concluded that "the uncharged offenses were not in the direct chain of proof as that term is used in Tewksbury" and that, to the contrary, "defendant's propensity to commit a particular type of crime, here lewd act, is the type of collateral fact addressed in Tewksbury." (Id. at pp. 896-897, italics added.) In line with Anderson, Sparks's uncharged sexual misconduct with respect to K.E. need only be proven by a preponderance of the evidence.
Sparks says Anderson was wrong, insisting that an uncharged offense is in the direct chain of proof. But saying so does not make it so. Although the evidence that Sparks fondled himself in front of K.E. could be used by the jury to conclude he was "disposed or inclined to commit sexual offenses" and "likely to commit a lewd act on a child and child molesting as charged here," his propensity was not an element of any of the charged offenses and did not bear directly on any link in the chain of proof of those elements. (See Anderson, supra, 208 Cal.App.4th at p. 897.)
Because the instruction specified that the uncharged offense was not itself sufficient to prove the charged offenses, and that the charged offenses had to be proven beyond a reasonable doubt, "[t]here is no reasonable likelihood the instruction on uncharged offenses relieved the prosecution of its burden of proof with respect to the charged offenses." (Anderson, supra, 226 Cal.App.4th at p. 896.)
III. DISPOSITION
The judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
SIMONS, J.