Opinion
A126546
09-27-2011
PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. CHARLES DWAYNE THOMPSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. C160879)
On January 23, 2009, seven-year-old M. told her grandmother that defendant Charles Dwayne Thompson—the child's father and grandmother's son—had been sexually abusing her for several months. After an evening of prayer and reflection, grandmother called the Oakland Police Department the following morning and reported her granddaughter's disclosure. Nine months later a jury found defendant guilty of eight sex crimes against his daughter. (See Pen. Code, §§ 288.5, subd. (a), 288.7, subd. (b).)The trial court afterward found defendant had suffered one prior "strike," and sentenced him to a prison term of 59 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant contends the trial court abused its discretion when its disallowed three of his challenges for cause to excuse prospective jurors, when it denied his pretrial objection under Evidence Code section 1108—to exclude evidence of prior, uncharged sexual offenses—and when it denied his posttrial Romero/Williams motion, seeking dismissal of the prior "strike" allegation. Defendant also asserts his total term of imprisonment violates the Eighth Amendment prohibition against cruel and unusual punishment. We affirm.
See People v. Williams (1998) 17 Cal.4th 148, 161 (Williams), People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-532.
BACKGROUND
An information filed April 28, 2009, stated eight felony counts against defendant: one count of violating section 288.5 subdivision (a) (continuous sexual abuse of a child under 14 years of age), and seven counts of violating section 288.7, subdivision (b) (acts of sexual penetration or oral copulation by a person 18 years of age or older with a child 10 years of age or younger). The information also alleged defendant had suffered a previous, serious felony conviction, in April 2000, for attempted carjacking. (See §§ 215, subd. (a), 664.) Consequently, upon conviction of any of the charged crimes, defendant would be ineligible for probation and would be sentenced pursuant to provisions of the three strikes law. Defendant pleaded not guilty to the charges and denied the prior conviction allegation.
The prosecuting attorney filed a pretrial motion on August 17, 2009, to introduce evidence under Evidence Code section 1108 of prior sexual offenses defendant had committed against another minor and M. in 1993 and 2002. Defense counsel opposed the motion, arguing for exclusion of the evidence under Evidence Code section 352. The trial court granted defendant's objection in part excluding the 1993 evidence but ruling the 2002 evidence admissible.
During jury selection, defense counsel challenged three prospective jurors for cause, based on actual bias, and thereafter used peremptory challenges to excuse them. Defendant exhausted his peremptory challenges before selection of the last two jurors.
During the trial, M. testified that the first time defendant touched her in a way that made her feel "uncomfortable" was in April 2008 at grandmother's studio apartment, when grandmother was away in the hospital. M. and defendant were alone, and defendant taught her to play "the Adam and Eve" game, in which they took their clothes off and he would try to put his "private" (penis) into her "butt" or her "private" (vagina). It hurt when he tried to do this, and his private "wouldn't fit." Defendant told her it would "only hurt for a little while." When she asked if it was "really okay" to play the game, he said it was. Defendant repeated this abuse at grandmother's apartment the next day.
During the summer of 2008, grandmother into the house where M. and her mother were living. Sometime after the end of the school year, defendant took M to the house, having obtained a key from grandmother. He and M. were alone, and they went into the room of M.'s brother, where defendant laid M. on the bed. M. remembered they both had their pants and underwear pulled down to their ankles. Defendant lay on top of her, spread her legs, and tried to "put his private in [her] butt."
In September 2008, grandmother to a new, larger apartment, and defendant and M. moved in with her. Grandmother had to return to the hospital for a period of time, and defendant repeated his abuse of M. In his bedroom, defendant would try "to put his private in [her] butt," which "hurted" but "didn't go through." One time when this abuse occurred grandmother was at home but in her own bedroom. On this occasion defendant told M. to "lick his privates," which "felt nasty." Then he licked her private.
In early November 2008, defendant moved out of grandmother's apartment after he and grandmother had a fight. Defendant began living in a motel. Defendant took M. to the motel around five times. At the motel defendant continued his sexual abuse. He abused her "all night long" on one occasion. M. said it hurt but defendant assured her it was "okay." Defendant also told M. to lick his "private," which she did more than five times at the motel. M. would not say, but wrote, that defendant actually told her to "suck his dick," which she understood to mean his private. Defendant licked her privates three times when she was there. He drank hard liquor and once gave some to M., making her feel "drowsy."
Around Thanksgiving, defendant stopped living at the motel, and moved into an apartment where grandmother's sister lived with her husband. Defendant took M. there "around five times," and they went into his bedroom, which M. was able to describe. On these occasions defendant would try to put his private in M.'s "butt," put his finger in her "butt," put his private on her private, and more than once told her to "suck his private." On one occasion he put a bottle in her butt. The abuse occurred when her aunt and her husband were asleep.
M first disclosed defendant's sexual abuse to grandmother, at her apartment, in January 2009. M., grandmother, and M.'s brother were in the living room. Her brother found the word "horny" in the dictionary and began laughing; M. looked at the word and laughed too. Grandmother told M.'s brother to leave the room and asked M how she knew the word. M. did not want to say, since defendant had told that he would "whup" her if she ever told anybody about his touching her, and she was afraid of him. Eventually M. told grandmother defendant had taught her the word, and related some of the more recent occasions when he had abused her—she was "too scared" to tell grandmother when the abuse had actually begun. Grandmother wrote down what M had related, read it back to M., and had M. sign it after writing that it was true.
M described having an interview the next day with "Kristy" at CALICO (Child Abuse Listening Interviewing Coordination) center, where she repeated what she had said to grandmother.
M. described getting in trouble at school for fighting and acting out. She concluded her direct testimony by stating she was glad the abuse had ended, but said she loved defendant and was "not glad" he had been arrested.
Grandmother testified she currently lived with M. She gave birth to defendant when she was 17, and had abused drugs until he was about eight years old, when she was 25, and had then started going to church to "turn[ her] life around." In 1983 she had pleaded guilty to manslaughter, for which she had served 113 community service hours but no jail time after her initial release on bail.
Defendant had been living with her in the latter part of 2008, acting as her caregiver—she had been in the hospital twice during those months. Grandmother described the events of January 23, 2009, when M.'s brother was present in the living room of the apartment and began laughing when he found the word "horny" in the dictionary. Her account was consistent with M.'s with the exception of the detail that grandmother took M. into another room instead of sending M.'s brother to another room. Grandmother added that M. "shut down real fast" when she asked her how she knew of the word "horny." M. eventually explained it was defendant who told her it was " 'a feeling that two people have before they have sex.' " Grandmother asked her what else defendant had said to her. M. was "just struggling, trying to get it out," until grandmother assured her she could "tell [her] anything." M. nevertheless appeared to be "scared to death" as she related the incidents of defendant's abuse. Grandmother testified that she prayed all that evening before calling the police the next morning. According to her it was only later, at defendant's preliminary hearing, M. confided that defendant's abuse had begun in April, rather than November, 2008.
Kristy Brodeur, an interviewer of child abuse victims at CALICO center, affirmed she had interviewed M. in January 2009, and stated her opinion that M. had not been coached because she had been able to describe details of what had happened physically, including the positioning of defendant and herself, and had also been able to relate how it felt. An Oakland police officer who observed the interview between M. and Kristy, and who had observed about 25 other such interviews, expressed a layperson's opinion that M. had not been coached.
Dr. Rachel Gilgoff testified she examined M. on February 2, 2009, for any signs of physical trauma or injury. She found no such injury, but stated sex abuse more often that not leaves no traces of physical trauma, and 80 to 90 percent of sex abuse examination result in "normal" findings.
With respect to defendant's prior sex offense, in 2002, Jeremiah Clark, a former minister of the his church, testified that grandmother was a member of this church and Clark met defendant in 2002 when he came with her to the church for a period of time. In July 2002, Clark led a bible-study group in which the discussion focused on sin. At this meeting defendant confessed that, on two occasions when he was high, he put his penis in M.'s mouth—who at the time was one year old. After the meeting Clark informed defendant he had a mandatory duty to report defendant's confession, and he then made a report to the county social services agency. Brian Hill, a member of the same church, said he had been "mentor" at the church in 2002, and at that time defendant told him he had touched M. in her "vaginal area," fondling the baby "in a sexual way."
Freddie Stoots, a worker for the county social services agency, took a telephone call in July 2002. In this call defendant and M.'s mother together reported defendant's molestation of M. Defendant said this had occurred when, intoxicated, he had changed M.'s diaper. He tried to put a finger in the baby's vagina, but did not penetrate it. An Oakland police officer testified he received a call from the Child Protective Services in August 2002, relaying information about an incident of child molestation. The report was that defendant had confessed to touching M.'s vagina with his finger when changing her diaper. The officer said the district attorney's office did not pursue the case because there was no evidence to corroborate defendant's confession, explaining this was "pretty standard" when a confession of crimes lacked corroborating evidence. Grandmother testified defendant told her in 2002 he had molested M. once when he was under the influence of drugs and alcohol, fondling and licking his baby daughter and touching her "private area" with his penis. Grandmother felt "really hurt" defendant had done such a thing, but forgave him at the time, because he was "coming clean with his sin" and "trying to do the right thing."
At the conclusion of the trial, on September 21, 2009, the jury returned its verdict, finding defendant guilty on all eight counts. The following day, in a separate bench trial, the trial court found defendant had, on April 25, 2000, suffered the alleged prior felony conviction for attempted carjacking, in violation of sections 215, subdivision (a) and 664.
Defense counsel filed a Romero/Williams motion (see fn. 3, ante) asking the court to exercise its discretion under section 1385 to dismiss the allegation of a prior serious felony conviction in the furtherance of justice. (§ 1385; see §§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) On October 19, 2009, the court denied the motion and proceeded to sentencing. As to the conviction under count 1, for violating section 288.5, subdivision (a) (continuous sexual abuse of child under 14 years of age), the trial court imposed a doubled midterm sentence of 24 years, with a consecutive five-year enhancement. (§ 288.5, subdivision (a); see §§ 667, subdivisions (a), (e)(1), 1170.12, subdivision (c)(1).) For the conviction under count 2, for violating section 288.7, subdivision (b) (sex crime with child under 10 years of age), the court imposed a consecutive, doubled sentence of 30 years to life. (§ 288.7, subdivision (b); see §§ 667, subdivision (e)(1), 1170.12, subdivision (c)(1).) For each of the remaining six convictions for violating section 288.7, subdivision (b), the court imposed a doubled sentence of 30 years to life, to run concurrently. (§ 288.7, subd. (b); see §§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) The total prison term imposed was thus 59 years to life with the possibility of parole.
DISCUSSION
A. Defendant's Challenges for Cause
During the first day of jury selection on August 24, 2009, the first group of prospective jurors called for voir dire questioning included Ronald L., Tonya T., and K.W. Defendant challenged these three for cause. Defense counsel argued each of them had expressed actual bias by stating a belief that defendant was guilty of one or more of the charged crimes. The trial court disallowed the challenges, remarking that Ronald L., Tonya T., and K.W., like many others, did not know the law, but the "totality of their answers" indicated "they felt . . . they could be fair and impartial." Defendant then used three peremptory challenges to excuse them.
The next day, August 25, 2009, before jury selection was completed, defense counsel noted for the record she had used all of defendant's peremptory challenges and requested more, citing her disagreement with the court's earlier ruling denying her challenges for cause. The court denied the request. Juror Nos. 11 and 12 were afterward selected and the jury sworn.
Defendant objects to the trial court's denial of these challenges for cause. He concedes each of the prospective jurors expressed, at some point during voir dire, an assurance that he or she would act fairly and impartially if selected, or follow the court's instructions, but asserts each one expressed actual bias in their final answers to voir dire questioning—affirming his or her belief defendant was guilty or probably guilty of one or more of the charged offenses. Whereas the court said it had considered the "totality" of each of the juror's statements, defendant suggests the sequence of their statements has a greater significance. In other words, he argues the court should have excused the jurors because, while each may have made some assurance of impartiality, each juror's examination "ended" with an answer expressing actual bias. He urges in any event that the other statements of these prospective jurors failed to contradict their answers showing actual bias.
A prospective juror is subject to a challenge for cause based on actual bias when he or she demonstrates "a state of mind . . . in reference to the case, or to any of the parties[] which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party." (Code Civ. Proc., § 225, subd. (b)(1)(C).)
In its determination of the qualifications of a prospective juror challenged for cause, the trial court has a wide discretion seldom disturbed on appeal. (People v. Holt (1997) 15 Cal.4th 619, 655.) Whereas we are limited to a reading of the prospective juror's statements as they appear in an appellate transcript, the lower court has an opportunity to assess in addition the juror's sincerity, credibility, and demeanor, and it is in a better position by far to evaluate the existence of a mental state that would prevent that prospective juror from acting with impartiality and without prejudice to the parties. (People v. Williams (1988) 199 Cal.App.3d 469, 477-478.) In reviewing that court's denial of a challenge for cause, we consider its ruling in context, to determine if it is fairly supported by the record. (People v. Mendoza (2000) 24 Cal.4th 130, 169.) We are bound by that ruling in the absence of a clear factual basis for doubting its correctness. (People v. Williams, supra, at pp. 477-478.) When a prospective juror's responses to voir dire questions are halting, equivocal, or conflicting, we are bound by the ruling. (People v. Mendoza, supra, at p. 169.)
In this case, prospective juror Ronald L. initially expressed concern about having to rely on a child witness to find defendant guilty, in the absence of DNA or other "definite" evidence. The prosecuting attorney then asked Ronald L. if he could convict defendant on the basis of the victim's testimony—without any other corroborating evidence—if Ronald L. found the victim credible and if he had been instructed that a fact could be proved by the testimony of one credible witness. Ronald L. said "[y]es." When the prosecuting attorney asked Ronald L. to promise to follow the law as instructed if he was selected as a juror, the latter said he would "try [his] best." Defense counsel then asked whether there was anything that would lead Ronald L. to believe he could not be a fair and impartial juror to both sides, and "more importantly, to [her] client." Ronald L. replied "[n]o," but added the burden of proof placed on the prosecution seemed "unfair" to him because "most likely there's validity to charges . . . [b]ut, you know, that's what makes our country where you're innocent until proved guilty." Defense counsel asked if it was correct Ronald L. had "a bias against [her] client," because he thought defendant "probably did at least one of these charges," and Ronald L. replied "I would say so."
When the prosecuting questioned Tonya T., the latter said she thought it would be "difficult" for the prosecution to meet its burden of proof, as the evidence was "probably going to be based on the child's testimony." The court then asked whether she could nevertheless hold the prosecution to that burden of proof, and Tonya T. said "personally . . . the number of charges . . . tend[ed] to make [her] feel that it [was] more than likely" defendant was guilty. The court explained the number of charges was not a factor in determining guilt or innocence, and asked whether Tonya T. could "set [that] aside." She responded she would, although it would be a "struggle." Defense counsel then asked if Tonya T. felt she had "a bias against [defendant] because [she thought that] with this number of charges he probably did at least one of them." Tonya T. replied "[u]nfortunately, yes."
K.W. agreed with a concern expressed by another prospective juror, concerning the prosecution's problematic reliance on a child victim's testimony to prove its case, but said she "would try [her] best to be impartial." Defense counsel told K.W. "it sound[ed to her] like [she was] prejudiced" against defendant based on one of her questionnaire responses concerning past experiences and "the fact [defendant] has been charged with a number of offenses." Defense counsel asked if this was true, and K.W. replied "I don't know." The trial court at this point asked K.W. whether she would "be able to follow the law as [instructed,] listen to the evidence," and base her decision solely on her application of that law to the evidence, to which K.W. responded she "would do [her] best." Defense counsel, in turn, inquired whether K.W. felt her "client is more likely guilty of the crimes with which he's charged," and K.W. commented the charges were "pretty serious." Defense counsel asked whether that meant "yes," and K.W. said "[p]robably."
In effect, Ronald L. promised to give his "best" effort to following instructions, denied any reason why he could not act fairly and impartially, but believed defendant was "probably" guilty due to the "likely . . . validity" of the charges against him. Tonya T., for her part, affirmed she would apply the proper burden of proof as instructed, despite the "struggle" of doing so, yet also believed defendant was "more than likely" guilty because of "the number of charges" against him. K.W. said she would do her "best" to be impartial and follow instructions, but believed defendant was "probably" guilty because the charges against him were "pretty serious." The record therefore shows that each set of responses included both assurances of impartiality and expressions of belief concerning defendant's probable or likely guilt. In short, the answers are conflicting. As such, we see no clear factual basis to doubt the correctness of the trial court's ruling, and deem it binding. (People v. Mendoza, supra, 24 Cal.4th at p. 169; People v. Williams, supra, 199 Cal.App.3d at pp. 477-478.)
We are not persuaded otherwise by the "chronology" of the jurors' responses. We see no useful purpose in attaching particular significance to a prospective juror's "final answer"; indeed doing so might motivate trial counsel to jockey for the opportunity to pose the last question to each prospective juror. In our view the trial court was correct to consider the "totality" of the jurors' responses.
Nor are we persuaded by the authorities cited by defendant. In the first, a juror disclosed bias based on a belief the defendant had unjustly escaped punishment for a previous, unrelated crime as to which he had been acquitted. The juror also expressed willingness to follow the court's instructions, but under former Penal Code section 1076, his assurance of impartiality was not admissible to counter his opinion amounting to bias, because that opinion related to facts known about an earlier case and not to facts known about the case at hand. (People v. Riggins (1910) 159 Cal. 113, 119-120.) In the second case, a juror expressed bias against the Ku Klux Klan, and the evidence presented in the case at hand involved defendant's commission of an assault while acting as a member of that organization. That juror had not been able to give an assurance of impartiality in the event defendant's membership in the Ku Klux Klan was proved at trial. (People v. Vitelle (1923) 61 Cal.App. 695, 696-702.) Here, by contrast, Ronald L., Tonya T., and K.W. each gave assurances of impartiality, and each of their assurances was admissible under the current jury selection scheme. (See, e.g., Code Civ. Proc. §§ 225, 230.)
Former Penal Code section 1076 was repealed in 1988, and nothing comparable to that former provision survives in the existing scheme set out in the Code of Civil Procedure. (See Stats. 1988, ch. 1245, § 35, p. 4155; Code Civ. Proc., § 223 et seq.)
Moreover, the jurors in the cases cited by defendant each entertained an opinion amounting to actual bias that arose from some knowledge (well-founded or not) of the particular defendant: that is, knowledge that the defendant had been wrongly acquitted of a past crime (People v. Riggins, supra, 159 Cal. at p.115); and, knowledge that the defendant was a member of the Ku Klux Klan (People v. Vitelle, supra, 61 Cal.App. at pp. 697-700). On the other hand, the opinions entertained by Ronald L., Tonya T., and K.W., concerning defendant's guilt, did not arise from any comparable knowledge relating particularly to defendant. Indeed, there is no indication that Ronald L., Tonya T., or K.W. had any factual knowledge about either defendant or the case beyond what they had been told during jury selection. Their opinions about defendant's guilt arose exclusively from a shared misconception concerning the effect of the criminal charges—a belief that the mere existence of criminal charges, or the number or nature of those charges, provided an indication of probable or likely guilt.
The misconception expressed by Ronald L., Tonya T., and K.W.—which led them to attribute to criminal charges a significance beyond that of a mere accusatory pleading—is one so generally entertained that it had long been the subject of a standard instruction given in criminal trials. Jurors are presumed able to follow jury instructions, including this one. (See People v. Boyette (2002) 29 Cal.4th 381, 436.) Thus the jurors in this case were instructed: "You must not be biased against a defendant because [he] has been arrested for this offense, charged with a crime, or brought to trial. None of these circumstances is evidence of guilt and you must not infer or assume from any or all of them that a defendant is more likely to be guilty than not guilty." (See CALJIC No. 1.00.)
In sum, we have reviewed the trial court's ruling in context and conclude the court did not abuse its discretion in denying the challenges for cause against Ronald L., Tony T., and K.W.
Further, as we have mentioned, defendant used peremptory challenges to excuse Ronald L., Tonya T., and K.W. Defendant claims he later exhausted his peremptory challenges before the selection of Juror Nos. 11 and 12. Because Juror No. 11 "made it known during her voir dire that she felt she was biased against [defendant]," defendant asserts it was a "safe bet" his counsel would have used a peremptory challenge to excuse that juror, had a peremptory challenge still been available.
But if Juror No. 11 "made it known" she was biased against defendant defense counsel made no challenge for cause on this ground. To demonstrate prejudice resulting from the denial of the challenges for cause interposed against Ronald L., Tonya T., and K.W., defendant must show that the denial of these challenges resulted in a jury that was not impartial. (See Ross v. Oklahoma (1988) 487 U.S. 81, 85-86; People v. Blair (2005) 36 Cal.4th 686, 742-743.) Here defendant did not challenge for cause, or otherwise express dissatisfaction with, either Juror No. 11 or any other juror who decided his case. His belated claim of dissatisfaction with Juror 11 we reject as speculative. (See People v. Boyette, supra, 29 Cal.4th at p. 419.)
Further, defendant's claim of bias on the part of Juror No. 11 has no support in the record whatever. During voir dire Juror No. 11 said she had to begin "with an assumption [defendant] probably committed . . . these things." She began to think this assumption might be "a bias" because, after listening to all the questions and answers preceding her own examination, she had learned that "in the sense of law, [defendant is] innocent and then the prosecution has to prove that he's guilty." The trial court pointed out they had not heard any evidence yet, so "[w]e just don't know." Juror No. 11 replied she could not "start with a blank." Then, as if an electric light bulb switched on above her head, Juror No. 11 said, in effect, that if she could not "start with a blank," she could begin with the proper assumption she had just learned. Thus she told the court "[b]ut I have no problem with starting [with the assumption] that he's innocent." Juror No. 11 agreed unequivocally when the court then remarked that "[t]he fact someone has been arrested and charged with an offense is not evidence of their guilt," and she affirmed she could find defendant guilty only if she was convinced beyond a reasonable doubt after hearing the evidence.
Thus, defendant cannot show he suffered prejudice as a result of the denial of his challenges for cause against Ronald L., Tonya T., and K.W. Accordingly, even were we to assume, for the sake of argument, that the trial court's denial of the challenges was erroneous, we can only conclude it was harmless error.
B. Defendant's Objection Under Evidence Code 1108
Evidence of a defendant's prior sex offenses is relevant circumstantial evidence that he or she committed a charged sex offense. (People v. Falsetta (1999) 21 Cal.4th 903, 920 (Falsetta).) Evidence Code section 1108, permitting the admission of such evidence, stands as a statutory exception to the general prohibition against the admission of character evidence. (See Evid. Code, § 1101, subd. (a).) This exception expressly requires that the trial court conduct an analysis under Evidence Code section 352 before admitting such evidence. (See Evid. Code, § 1108, subd. (a).) The judicial safeguard of the section 352 analysis prevents unfair misuse of such "propensity" evidence, and preserves Evidence Code section 1108 from a challenge that it violates constitutional due process. (Falsetta, supra, at pp. 917-918, 920.)
Evidence of a person's conduct is generally inadmissible to prove his or her conduct on another occasion, except as provided by specified Evidence Code provisions, including section 1108. (Evid. Code, § 1101, subd. (a).) In a criminal action in which a defendant is accused of a sex offense, evidence of the defendant's commission of another sex offense is not made inadmissible under section 1101 so long as the evidence is not inadmissible under section 352. (Evid. Code, § 1108, subd. (a).) Section 352, in turn, sets out the general, discretionary power by which a trial court may exclude evidence whenever it determines its probative value is substantially outweighed by the probability that its admission will result in an undue consumption of time, or create a substantial danger of undue prejudice or confusion of the issues, or of misleading the jury. (Evid. Code, § 352.)
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In this case, the prosecutor filed a pretrial motion in limine seeking to present evidence of prior sexual offenses under Evidence Code section 1108. Her offer of proof related to two incidents of uncharged sexual misconduct defendant had committed in 1993 and 2002. As to the 2002 evidence, the offer described the testimony of several potential witnesses to whom defendant had confessed that he had inappropriate contact of a sexual nature with M., then one year of age.
Defense counsel argued the evidence of prior sex offenses should be excluded under Evidence Code section 352. At the hearing on the motion, the trial court did exclude the 1993 evidence, explaining it was remote in time, occurring when defendant was a juvenile. The court also questioned the relevancy of the evidence, seemingly because the circumstances were dissimilar to those underlying the charged sex crimes, and concluded the danger of prejudice outweighed any probative value. The trial court, however, allowed the 2002 evidence. As to that offense it explained it involved M., the same victim as in the charged offenses, and was therefore relevant. Since the 2002 evidence was based on defendant's own confessions, admission of the evidence placed no real burden on defendant to deny his commission of the offense. The court further determined the evidence was not unduly prejudicial, as it was no worse than the evidence of the charged offenses.
Defendant contends the trial court abused its discretion, in allowing evidence of the 2002 sex offense. In defendant's view, the probative value of the evidence was clearly outweighed by the probable danger it would cause undue prejudice or confuse the issues to be tried. Specifically, defendant claims the "quality" of the evidence had only limited probative value, because it consisted only of his own "untested and unsupported" statements. On the other hand the evidence was "fraught with prejudicial impact" because it involved abuse of a "defenseless baby." He urges the evidence was also likely to confuse the jurors, because it directed their attention away from the charges to be tried and focused it improperly on the prior, uncharged offenses. Defendant notes the jurors might have been tempted to punish him for this prior offence by convicting him of the charged offense, as they would likely recognize that he had never been called to account for the 2002 offense, and also that the social services agency had failed ensure M. was protected from the subsequent abuse underlying the charged sex crimes.
As with evidentiary rulings admitting or denying evidence generally, we review the challenged ruling admitting evidence under Evidence Code section 1108 for abuse of discretion. Thus we review the record to determine whether the ruling falls outside the bounds of reason. (See People v. Wesson (2006) 138 Cal.App.4th 959, 969 (Wesson).)
We bear in mind the factors a trial court is bound to consider when conducting the "careful weighing process" under Evidence Code section 352 that is prerequisite to a ruling admitting or denying "propensity" evidence under Evidence Code section 1108. (Falsetta, supra, 21 Cal.4th at p. 917.) These factors include: the nature of the evidence of the prior sex offense; the relevance of that evidence; the remoteness in time of the prior sex offense; the degree of certainty defendant committed the prior sex offense; the similarity between the prior sex offense and the charged sex crime; the likely prejudicial impact of the evidence of the prior sex offense; the burden on defendant to defend against a prior, uncharged sex offense; and, the likelihood that evidence of the prior sex offense would confuse, mislead, or distract the jurors from their duty to decide whether defendant committed the charged sex offense. Additionally, the court must consider whether there are possible, less prejudicial alternatives, such as admitting only part of the evidence of prior sex offenses, or excluding inflammatory but relatively irrelevant details surrounding the prior sex offense. (Ibid.) The probative value of the evidence of a prior sex offense increases in relation to the similarity and proximity in time between the prior and charged sex offenses, and to the degree there is an independent source of evidence (the victims) in each offense. The likely prejudicial effect is lessened when the prior sex offense resulted in a conviction, because the jurors are not then tempted to punish the defendant for the prior offense and are not diverted to the task of deciding defendant's guilt in committing the prior sex offense. (Ibid.)
Turning to the trial court's ruling, we note the court excluded part of the evidence of prior sex offenses—that is, the 1993 evidence. In weighing it separately from the 2002 evidence, it is apparent the court was mindful of the injunction that it consider less prejudicial alternatives, including exclusion of part of the proffered sex offenses. (Falsetta, supra, 21 Cal.4th at p. 917.) As for the 2002 evidence, the victim, M., was identical to victim in the later charged sex crimes, although younger. The evidence also showed other similarities with the charged sex crimes. The offense occurred when defendant was "high" and alone in the home with the victim, and it occurred only some six years before the earliest of the charged sex crimes, after defendant had reached adulthood. All these are indicators of probative value, as is the fact that the 2002 evidence arose from defendant's confessions to third parties—a source independent of the victim's testimony about the charged sex crimes. (See ibid.) We note, too, the church minister, church mentor, and social services case worker to whom defendant confessed could hardly be characterized as angry relatives—nothing in the record supports an inference they were anything other than dispassionate and truthful in their testimony. Overall, these circumstances confer on defendant's confessions a high degree of reliability, despite the lack of corroborative evidence. Thus, the record indicates the 2002 evidence was highly probative, and we find unpersuasive defendant's claim the probative value was "limited" because it arose entirely from his own "untested and unsupported" statements.
Evidence subject to exclusion under Evidence Code section 352 is not evidence that is prejudicial in the sense that its relevance and high probative value is bound to have a damaging effect on the defense. Rather, it is evidence that is prejudicial because it tends to evoke an emotional bias against one party while having little effect on the issues. Such evidence invites the jury to "prejudge" the case or a party based on extraneous facts. (People v. Zapien (1993) 4 Cal.4th 929, 958.) The 2002 evidence was relevant and highly probative as circumstantial evidence showing that defendant committed the charged sex crimes. (See Falsetta, supra, 21 Cal.4th at p. 920.) To the extent the evidence showed a prior offense against the same victim under circumstances similar to the charged crimes, we are not convinced it could have had but little effect on the issues. Nor does the evidence appear to be unduly inflammatory because M. was only one year old at the time. To the contrary, it appears the evidence of the charged sex crimes was far more damaging, showing abuse much more pernicious in its severity, frequency, and duration. M.'s age at the time of the charged offenses was, if anything, more damaging than her age in 2002. At the age of seven years M.'s awareness and understanding—and hence her susceptibility to emotional trauma—had increased vastly, whereas her ability to resist defendant's abuse was still not much greater than it had been when she was a "defenseless baby."
Defendant, as we have noted, speculates that admission of the 2002 evidence was unduly prejudicial because it improperly tempted the jury to punish him for this uncharged offense, and it improperly diverted their attention from the charged offenses. Nothing in record supports this claim, however, and the court properly instructed the jury on these points. (See CALJIC Nos. 2.50.01, 2.50.1; see also Falsetta, supra, 21 Cal.4th at p. 920.)
Similarly we are not persuaded the court abused its discretion in failing to exclude the 2002 evidence because of the danger it would confuse or mislead the jury. This danger was neither presented in opposition to the motion to admit the 2002 evidence, nor argued to any appreciable degree at the hearing on the motion. Moreover, at the conclusion of the trial, the court correctly instructed the jury concerning the limited purposes for which they could consider the 2002 evidence admitted pursuant to Evidence Code section 1108. (See CALJIC No. 2.50.01.)
We conclude, in sum, that the court did not abuse its discretion in ruling the 2002 evidence was admissible because its probative value was not outweighed by the danger it would create undue prejudice or confusion. This ruling was by no means "outside the bounds of reason." (See Wesson, supra, 138 Cal.App.4th at p. 969.)
Even if we were to assume the trial court abused its discretion in failing to exclude the 2002 evidence, any such error was harmless.
In addressing this point we first note defendant's assertion the court's abuse of discretion rendered his trial fundamentally unfair in violation of constitutional due process. He thus insists we assess the lower court's error not only under the harmless error analysis applicable to statutory error (People v. Watson (1956) 46 Cal.2d 818, 836 [reversal required if it is reasonably probable defendant would have had a more favorable result absent the error]), but also under the stricter analysis applicable to constitutional error (Chapman v. California (1967) 386 U.S. 18, 24 [reversal required unless error is harmless beyond a reasonable doubt]). We disagree. It is generally true a defendant who makes an objection at trial under Evidence Code section 352 may make "a very narrow due process argument . . . that the asserted error in admitting evidence over his . . . section 352 objection had the additional legal consequence of violating due process." (People v. Partida (2005) 37 Cal.4th 428, 435.) In this instance, however, defendant's trial objection was not simply a general objection under Evidence Code section 352. His objection was essentially that the "propensity" evidence should not be admitted under Evidence Code section 1108 because that section permitted the admission of evidence only if the trial court additionally found it admissible after an analysis conducted pursuant to Evidence Code section 352. (Evid. Code, § 1108, subd. (a).) The Supreme Court has determined Evidence Code section 1108 does not violate constitutional due process precisely because that section requires a trial court to engage in a "careful weighing process" under Evidence Code section 352 before admitting the "propensity" evidence. (Falsetta, supra, 21 Cal.4th at pp. 916-918, 920.)
Thus, when evidence of prior sex offenses is offered for admission under Evidence Code section 1108, constitutional due process is satisfied once the trial court has actually engaged in the "careful weighing process" under Evidence section 352, regardless of its ultimate ruling to admit or exclude the evidence. Here the record shows clearly that the court conducted a careful weighing process under section 352 before ruling the evidence admissible under section 1108—a weighing process in which it gave due consideration to the factors emphasized by the Supreme Court in Falsetta, supra, and summarized above. (Falsetta, supra, 21 Cal.4th at p. 917.) Consequently, our harmless error analysis— assuming for the sake of argument that the court should have excluded the 2002 evidence—is limited to a determination whether it is reasonably probable defendant would have obtained a more favorable result had that evidence not been admitted. (People v. Watson, supra, 46 Cal.2d at p. 836; see, e.g., People v. Harris (1998) 60 Cal.App.4th 727, 741 [applying this harmless error analysis to a ruling under Evidence Code section 1108].)
Defendant also asserts reversal is necessary due to the "problematic" nature of the prosecution's case. Specifically, the case depended largely on the testimony of M. and grandmother, and M.'s testimony was that of a child who had lived a "chaotic" life and had suffered no physical injuries from defendant's abuse, whereas grandmother's testimony was that of one who "suffered from mental illness and had a troubled relationship" with defendant, her son. Defendant argues, in effect, that their testimony would not have persuaded the jury to find him guilty beyond a reasonable doubt, had the 2002 evidence not been admitted. The jury, as we have said, was properly instructed that, if it determined defendant had committed the 2002 sex offense, it was permitted to infer he committed the charged sex crimes, but that this inference was insufficient in itself to find defendant guilty and was but one item to consider, along with all other evidence, in determining whether he was guilty beyond a reasonable doubt of the charged sex crimes. (See CALJIC Nos. 2.50.01, 2.50.1.) The court also properly instructed the jury how to evaluate the credibility of M. as a child witness as well as the credibility of witnesses generally.
Finally, the evidence relating to the charged sex crimes, which we have summarized above in some detail, was compelling. It included, for example, expert testimony indicating M. had not been coached, and explaining her lack of physical injury was not unusual. There was evidence tending to corroborate M.'s account of the abuse, including M.'s ability to identify motel rooms she and defendant had occupied, and the evidence showing that defendant's cell phone did contain pornographic images as M. had described. In our view the record does not support defendant's assertion that the evidence of the charged offenses was "problematic." Hence we are not persuaded it was reasonably probable defendant would have obtained a more favorable result if the 2002 evidence had not been admitted. Accordingly, even if we assume it was error to admit the 2002 evidence under Evidence Code section 1108, it was harmless.
C. Defendant's Motion to Strike the Prior Conviction
During the postverdict proceedings, as discussed above, the trial court found defendant had suffered the prior felony conviction for attempted carjacking, as alleged in the information, in violations of sections 215, subdivision (a), and 664.
Defense counsel made a Romero/Williams motion, inviting the court to exercise its discretion to strike the prior conviction for purposes of sentencing, pursuant to section 1385. (See Williams, supra, 17 Cal.4th p. 161; Romero, supra, 13 Cal.4th at pp. 529-532.)
At the hearing on the motion, defense counsel submitted on her motion and supporting papers, which included her declaration summarized below. The prosecuting attorney argued in opposition, emphasizing chiefly statements defendant had made in his presentencing interview with the probation officer, repudiating responsibility for his crimes with an insistence he had been convicted of "bogus" charges based on a story grandmother had "made up" and with which she had "brainwashed his daughter," M. The court denied the motion, concluding, in light of defendant's present and prior felony convictions, and the particular circumstances of his background, character, and prospects, it did not deem that he fell outside the spirit of the three strikes law, such that he should be treated as though he had not been convicted for the prior serious felony. (See Williams, supra, 17 Cal.4th at p. 161.)
Defendant essentially reargues his Romero motion. In the trial court, he emphasized: He was born in 1979, when grandmother was 17 years of age; grandmother raised her only child, defendant, as a single mother; defendant's early life was "neither stable nor idyllic;" grandmother shot and killed one of her sister's boyfriends when defendant was a toddler; for periods of defendant's childhood he and grandmother lived in motels and moved around frequently; for much of defendant's life grandmother was addicted to drugs and alcohol; grandmother "has a documented history of mental illness," and was abusive to defendant, beating him as a child with switches, belts, and electrical cords; given his unstable childhood, defendant did not graduate from high school, although he later completed his high school requirements at an adult school in Hayward; defendant did well on probation for his conviction in 2000 for attempted carjacking and the trial court in that matter dismissed the conviction under section 1203.4; defendant was 21 years of age when M. was born, and he did not marry M.'s mother, but even when their relationship ended defendant continued to carry out his "duties as a parent," providing financial support and assisting M. with her schoolwork, picking her up from school, and conferring with her teachers; before his arrest defendant was gainfully employed; defendant took care of grandmother for a time when she was ill, at grandmother's request, resigning from his employment to do so; and, defendant had hoped to join the Army National Guard before his arrest. To these averments defendant adds he "did not inflict significant physical injury" on M. in the commission of the sex crimes resulting in his sentence.
Defendant argues that, in view of these circumstances, the 59-years-to-life prison sentence imposed by the trial court under the three strikes law was unwarranted and asks this court to remand for resentencing.
We review the trial court's ruling for abuse of discretion, a deferential standard. (Williams, supra, 17 Cal.4th at p. 162.) A trial court's ruling on a motion under section 1385 is not an abuse of discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (People v. Carmony (2004) 33 Cal.4th 367, 377.) If the record shows the court weighed the relevant facts and reached an impartial decision in conformity with the spirit of the three strikes law, we must affirm, even if we might have ruled differently in the first instance. (Id. at p. 378.)
Here it is apparent the trial court considered the mitigating facts defendant presented, as well the probation report to which the prosecutor referred in her opposing argument. We cannot say the court's ruling was irrational or arbitrary let alone so irrational or arbitrary no reasonable person could agree with it. There was no abuse of discretion. D. Defendant's Eighth Amendment Challenge
Defendant finally seeks remand and resentencing on the ground that his sentence—59 years to life in prison with the possibility of parole—is cruel and unusual punishment in violation of the Eighth Amendment. As he did not raise this objection below, it is forfeited. (People v. Kelley (1997) 52 Cal.App.4th 568, 583.)
Defendant's sole contention, in any case, is that he was 29 years of age at the time of sentencing and "is unlikely to see his parole eligibility date." In support of this argument he relies on a dissenting opinion and a concurring opinion by Justice Stanley Mosk, which expressed that justice's view that a "multicentury" sentence, "impossible for a human being to serve," violates the Eighth Amendment of the federal Constitution and section 17, article I of the California Constitution. (People v. Deloza (1998) 18 Cal.4th 585, 600-601 (conc. opn. of Mosk, J.); see also People v. Hicks (1993) 6 Cal.4th 784, 797 (dis. opn. Mosk, J.).) But these opinions lack the agreement of a majority of the court and have no value as precedent. (People v. Stewart (1985) 171 Cal.App.3d 59, 65.)
On the other hand, this court has previously held that the fact a defendant may not be able to serve the entirety of his or her sentence does not in itself make the punishment inappropriate. In practical effect a defendant is in the same position as one sentenced to life without possibility of parole—and the latter sentence has been held in appropriate cases not to violate the prohibition against cruel and unusual punishment under either the federal or California Constitution. (People v. Sullivan (2007) 151 Cal.App.4th 524, 572.)
The general rule is that a sentence violates the Eighth Amendment if it "grossly disproportionate to the severity of the crime." (Rummel v. Estelle (1980) 445 U.S. 263, 271.) To make this determination a reviewing court examines the gravity of the offense and the harshness of the penalty. (Solem v. Helm (1983) 463 U.S. 277, 290-291.) It may also be guided by comparisons with sentences imposed in the same jurisdiction for other offenses, and with sentences imposed in other jurisdictions for the same offense. (Id. at pp. 291-292.)
Here defendant suffered eight convictions for sex crimes of undoubted gravity, and his sentence is based not only on these convictions but also on his prior conviction for attempted carjacking—a conviction holding the potential for violence and representing defendant's recidivism. A sentence imposed in this manner under the three strikes law is not necessarily grossly disproportionate so as to violate the Eighth Amendment. (See Ewing v. California (2003) 538 U.S. 11, 30-31.) For his part, defendant does not appear to present one of those "rare cases" in which a threshold comparison of his crimes and his sentence is sufficient in itself to infer that the sentence is grossly disproportionate. (Id. at p. 30.) Defendant provides no argument or jurisdictional comparisons to persuade us otherwise, except to urge the possibility he may be unable to complete his sentence. As such we see no merit in his forfeited claim.
DISPOSITION
The judgment is affirmed.
Banke, J. We concur: Margulies, Acting P. J. Dondero, J.