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People v. Tarr

California Court of Appeals, Third District, Yuba
Mar 21, 2008
No. C053602 (Cal. Ct. App. Mar. 21, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. ROBERT LAWRENCE TARR, Defendant and Appellant. C053602 California Court of Appeal, Third District, Yuba March 21, 2008

NOT TO BE PUBLISHED

Super. Ct. No. CRF05275

SIMS, Acting P.J.

A jury convicted defendant Robert Lawrence Tarr of continuous sexual conduct with a child under the age of 14 (Pen. Code, § 288.5, subd. (a); undesignated section references are to the Penal Code); the jury also found that he committed great bodily injury (§ 12022.7, subd. (a)) and engaged in substantial sexual conduct with a victim under the age of 14 (§ 1203.066, subd. (a)(8)). The trial court sentenced defendant to 19 years in state prison (the upper term of 16 years under section 288.5, subd. (a)), plus three years consecutive for the great-bodily-injury enhancement).

Defendant contends: (1) The trial court denied defendant’s due process right to present a defense and to confront the witnesses against him by denying him the opportunity to put on evidence of the complaining witness’s sexual history. (Evid. Code, § 782.) (2) The record does not support the finding of great bodily injury because pregnancy alone is not great bodily injury. (3) The trial court committed Cunningham error (Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856]) by imposing the upper term based on facts not tried to the jury and found true beyond a reasonable doubt. We shall affirm.

FACTS

The victim, J.M., is defendant’s daughter. At the age of 11, she was placed in defendant’s home after being removed from her mother’s custody pursuant to Welfare and Institutions Code section 300. Up until then, he had been unaware of her existence.

Defendant lived with his longtime girlfriend, J.J., her daughter, T.M., and T.M.’s two sons. When J.M. came to stay with defendant, they were renting a house on Marysville Road in Dobbins and building another on Manzanita Lane in Oregon House (both in Yuba County, California).

About a year and half after J.M. moved in, according to her testimony, defendant fondled her breasts, reaching over her shoulder and inside her shirt as she sat at the computer in the Manzanita Lane house, then rubbing her breasts in a circular motion. He also touched her vagina under her clothing, rubbing it in a circular motion and inserting his finger. Then he developed the habit of entering her room and fondling her under her clothing almost every night, whether in the Marysville Road house or the Manzanita Lane house, even though others were often in the house. He would call her “pretty baby” and “special” and make grunting noises as he touched her.

About three times, defendant tried to penetrate J.M.’s vagina with his penis, though she squirmed and resisted; he succeeded once, causing her discomfort. Afterward he said: “This will be our little secret. You don’t need to tell anybody.” He also rubbed his penis on J.M.’s vagina until he ejaculated. Another time, he tried to put her hand on his penis inside his pants, but she pulled away.

After J.M. had gone two months without a period, she told defendant. In July 2004, he asked if she had been sexually active and provided her a home pregnancy test, which purported to show that she was not pregnant.

Later in July 2004, J.M. told a friend that defendant had been touching her inappropriately. That afternoon, Yuba County Sheriff’s Sergeant Melford Duncan interviewed her. Seeming very upset, J.M. told a story similar to the one she told at trial; however, she did not say that defendant penetrated her, she said that no one else was home when the molestations occurred, and she did not mention any occurrences at the Marysville Road house.

Sergeant Duncan did not question J.M. in great depth because he knew that defendant would be arriving at the school to pick her up within 30 minutes, he wanted only to get enough information at that point to find out if there was a basis for a Child Protective Services hold and then to investigate further with defendant, and he knew that if the matter was pursued there would be another interview at the MDIC (Multi-Disciplinary Interview Center).

Interviewed the next morning by Sergeant Duncan, defendant claimed innocence.

In an MDIC interview the following day, J.M. said that defendant had molested her nearly every day.

Interviewed again about a week later, defendant still denied inserting his penis into J.M. or impregnating her. He admitted that he might have touched her breasts accidentally, that she might have come into contact with his penis, that he called her “pretty baby,” and that he had bought her a home pregnancy test.

J.M. gave birth to a daughter in February 2005. Criminalists at the California Department of Justice (DOJ) obtained and tested DNA from defendant, J.M., and the infant. According to criminalist Deanna Kacer, the DNA results showed an overwhelming likelihood that defendant was the infant’s father.

Kacer analyzed the DNA samples using nine loci and applying the short tandem repeats (STR) and polymerase chain reaction (PCR) methods, the most sophisticated DNA testing methods in current use. Then, using the FBI’s population databases for the three major ethnic groups in the United States as a benchmark, she calculated defendant’s “paternity indices” (the probability that defendant was the father, divided by the probability that a random man was the father). Any number over 10,000 is strong evidence of paternity. Defendant’s paternity indices were 760,000 compared to a random Caucasian man, 1.3 million compared to a random Hispanic man, and 2.5 million compared to a random African-American man. Furthermore, his DNA “contain[ed] all of the paternal types required in order to create this particular child.”

PCR testing amplifies targeted loci by replicating the process by which DNA duplicates itself naturally. It is applied to STR fragments of DNA, which consist of a class of repeated units including only a few base pairs. (People v. Smith (2003) 107 Cal.App.4th 646, 654-655.) California courts have repeatedly approved these methods. (Id. at p. 665; see also People v. Johnson (2006) 139 Cal.App.4th 1135, 1149; People v. Henderson (2003) 107 Cal.App.4th 769, 779; People v. Hill (2001) 89 Cal.App.4th 48, 57; People v. Allen (1999) 72 Cal.App.4th 1093, 1098-1101.)

The California Supreme Court recently approved the use of these databases for DNA testing purposes. (People v. Wilson (2006) 38 Cal.4th 1237, 1240, 1242-1250.)

Defendant’s daughter, K.T., and J.J.’s daughter, P.B., testified to his good character.

J.J. testified that she had been with defendant for 20 years. She and defendant were always together, and she had never seen anything inappropriate between defendant and J.M. He would go into her room for a couple of seconds at most, always with the door open. Contrary to J.M.’s testimony, there was no computer at the Manzanita Lane house. J.M. had consistently misbehaved in defendant’s home; she had also told J.J.’s grandsons that if they did not like conditions at home they could call Child Protective Services. During 2003 and 2004, the period of the alleged molestations, defendant had a knee injury which required surgery and resulted in a stiff leg.

She admitted that at some time in that span of years she and defendant were separated -- the time during which J.M., who was not her daughter, was conceived.

In rebuttal, Mary Barr, one of the investigating officers (now the District Attorney’s investigator), testified that she saw a computer in the living room of the Marysville Road house in July 2004.

T.M., who also lived with defendant and J.J. in 2003 and 2004, corroborated her mother’s testimony.

Defendant presented no expert testimony with respect to the DNA testing.

DISCUSSION

I

Defendant contends that the trial court prejudicially abused its discretion, depriving him of his constitutional rights to mount a defense and to confront the witnesses against him, by refusing to hold a hearing pursuant to Evidence Code section 782 as to whether he could present evidence of J.M.’s sexual knowledge and conduct. We conclude that, in light of the prosecution’s uncontroverted DNA evidence, any error was harmless beyond a reasonable doubt.

Evidence Code section 782 provides in part:

Defendant filed a motion in limine under Evidence Code section 782, with a supporting declaration by counsel averring: J.M. has had sexual contact with others, or contact that could be described as such. She has viewed her brother naked and has been caught naked with him under blankets. The juvenile court had found true in a Welfare and Institutions Code section 300 proceeding that J.M.’s brother had repeatedly molested her; counsel had been informed that J.M. lied about this molestation when interviewed in this case. J.M. had repeatedly observed sexual acts by her mother and been given access to pornographic materials by persons other than defendant. J.M. has wrestled with an adult man other than defendant in a way that could be described as flirtatious.

Defendant also moved in limine to present a third-party culpability defense (without naming any third party), claiming that since he did not have sex with J.M. she must have had sex with someone else. On this theory, he asserted that to exclude evidence of J.M.’s “sexual history, sexual knowledge, and[/]or sexual conduct” under Evidence Code section 782 would violate his rights to present a complete defense and to confront witnesses.

At the hearing on these motions, defense counsel admitted that only the last alleged sexual conduct by J.M. (“flirtatious” wrestling) was supposed to have occurred after she was removed from her mother’s home in May 2002 and placed with defendant. Counsel also admitted that he knew of no unsupervised contact between J.M. and her brother after the juvenile court’s placement order, and that defendant did not have a twin brother.

The trial court ruled that even if everything in counsel’s affidavit was true, it was insufficient to require an Evidence Code section 782 hearing. Under Evidence Code section 352, its probative value “barely ma[de] the scale” on a scale of one to 10, but its prejudicial effect of “character ass[assi]nation” as to J.M. “approache[d] the 10.”

Defense counsel asked for “clarification” of this ruling, asserting that if the jury did not hear about J.M.’s prior sexual knowledge it would think she could have learned about sexual acts only from defendant. The trial court pointed out that by the time defendant’s alleged acts began, J.M. was already 13 and menstruating.

Defendant asserts that his proposed evidence was relevant not only to show an alternative source for J.M.’s sexual knowledge -- her molestation by her brother (cf. People v. Daggett (1990) 225 Cal.App.3d 751) -- but to support his challenge to the conclusions drawn from the DNA evidence. Trial counsel asserted in closing argument that criminalist Kacer did not perform a “kinship analysis” or do “incest calculations.” According to defendant, had the jury also known that J.M.’s brother had molested her and that the DNA analysis did not attempt to exclude him as the father, it might have doubted the conclusiveness of the proof for defendant’s paternity. We are not persuaded.

We assume without deciding that the trial court should have conducted an Evidence Code section 782 hearing and should have admitted the proffered defense evidence. Any error was harmless. The DNA evidence established beyond a reasonable doubt that defendant fathered J.M.’s child. This could have occurred only if defendant had engaged in substantial sexual conduct with the victim. Trial counsel’s contrary argument was not based on any evidence, but only on questions he asked in cross-examining Kacer. The defense adduced no expert evidence whatsoever suggesting that defendant’s DNA was similar to that of his son. Counsel’s questions and the argument built on them were mere insinuation, entitled to no weight in the jury’s deliberations. Furthermore, since counsel admitted in limine that he had no evidence of any unsupervised contact between J.M. and her brother since she was removed from her mother’s home, two years before she became pregnant, his molestation of J.M. when she was 11 years old or younger was irrelevant.

Because the DNA evidence overwhelmingly proved defendant’s guilt, there is no reasonable possibility that the outcome would have differed had the excluded evidence been admitted. Any error was therefore harmless.

II

Defendant contends that the great-bodily-injury finding must be reversed because the allegation was based only on J.M.’s pregnancy and pregnancy alone is not great bodily injury. We disagree.

As the parties note, this issue is currently before the California Supreme Court. (People v. Cross (S139791), rev. granted Mar. 1, 2006.) However, defendant cites no California authority supporting his argument, and the California appellate courts have consistently rejected it. (People v. Superior Court (Duval) (1988) 198 Cal.App.3d 1121, 1131-1132 (Duval); People v. Sargent (1978) 86 Cal.App.3d 148, 151 (Sargent).) Unless and until the Supreme Court decides otherwise, we will follow Duval and Sargent.

III

Defendant contends that his upper-term sentence violated Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856] because it was based on facts not tried to the jury and found true beyond a reasonable doubt. We conclude that the sentencing error was harmless beyond a reasonable doubt.

Cunningham error is harmless “if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury[.]” (People v. Sandoval (2007) 41 Cal.4th 825, 839.) This is the case here.

The trial court imposed the upper term based on the following factors in aggravation: (1) J.M. was “probably the most vulnerable 288 victim I have ever seen, given the history that she lived prior to moving in to [defendant]’s home, [and] his knowledge of that history[.]” (2) “[K]nowing that, he violated ultimately the position of trust that the Juvenile Court put him in and C.P.S. put him in when [J.M.] was placed in his home.”

We conclude beyond a reasonable doubt that a jury applying the beyond-a-reasonable-doubt standard would have found true that, as J.M.’s biological father, entrusted with her care by the juvenile court and Child Protective Services, defendant egregiously violated his position of trust. Therefore, the trial court’s Cunningham error is harmless. (People v. Sandoval, supra, 41 Cal.4th at p. 839.)

DISPOSITION

The judgment is affirmed.

We concur: RAYE, J., BUTZ, J.

“(a) In any of the circumstances described in subdivision (c) [including a prosecution under Pen. Code, § 288.5], if evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness under Section 780, the following procedure shall be followed:

“(1) A written motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness proposed to be presented and its relevancy in attacking the credibility of the complaining witness.

“(2) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated. The affidavit shall be filed under seal and only unsealed by the court to determine if the offer of proof is sufficient to order a hearing pursuant to paragraph (3). After that determination, the affidavit shall be resealed by the court.

“(3) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant.

“(4) At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant pursuant to Section 780 and is not inadmissible pursuant to Section 352 of this code, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court.”


Summaries of

People v. Tarr

California Court of Appeals, Third District, Yuba
Mar 21, 2008
No. C053602 (Cal. Ct. App. Mar. 21, 2008)
Case details for

People v. Tarr

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROBERT LAWRENCE TARR, Defendant…

Court:California Court of Appeals, Third District, Yuba

Date published: Mar 21, 2008

Citations

No. C053602 (Cal. Ct. App. Mar. 21, 2008)