Summary
finding "no material difference" between CALJIC No. 2.50.01 and CALCRIM No. 1191
Summary of this case from People v. KotkoOpinion
No. C052319.
July 18, 2007. [CERTIFIED FOR PARTIAL PUBLICATION]
pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts I, III and IV.
Appeal from the Superior Court of Shasta County, No. 05F2715, Richard A. McEachen, Judge.
A.M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette and Mary Jo Graves, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, John G. McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Defendant molested a four-year-old and an eight-year-old over a period of about seven months in 2002 and early 2003. A jury convicted him of multiple counts of child molestation, and the trial court sentenced him to a total state prison term of 180 years to life. On appeal, defendant contends (1) the trial court abused its discretion in admitting evidence of a prior rape defendant committed; (2) a jury instruction on use of the prior rape evidence violated his due process rights; (3) the sentence violated the prohibition on cruel and unusual punishment; and (4) imposition of consecutive sentences without jury findings on the facts supporting the consecutive sentences violated his jury trial and due process rights. We affirm.
FACTS
Defendant makes no contention that the evidence was insufficient, and, because we find no error, it is unnecessary to engage in a harmless error analysis. Therefore, we include only the most material facts, drawing all reasonable inferences in favor of the judgment. (See In re James D. (1981) 116 Cal.App.3d 810, 813 [ 172 Cal.Rptr. 321].)
The victims, D.B. and J.B., are brothers. At the time of the molestations, D.B. was eight years old and J.B. was four years old. Defendant was the live-in boyfriend of Sherry B., J.B.'s paternal grandmother. Sherry and defendant often went to the home where D.B. and J.B. lived. For a couple of weeks or a month, defendant lived in the same household as the victims.
When defendant and D.B. were alone in the residence, defendant fondled D.B.'s penis, testicles, and anus, sometimes with defendant's hand and sometimes with his mouth. This happened, at times, when D.B.'s clothes were off, but also happened when he was clothed. The molestation occurred at least four times while defendant was living in the household. On one occasion, defendant had D.B. touch defendant's penis.
D.B. saw defendant, in a closet, touching J.B.'s private areas with defendant's hand. J.B.'s clothes were off. Defendant put his mouth on J.B.'s penis. Defendant threatened D.B. that, if D.B. told anyone, defendant would hurt everyone in the house. While J.B. was on a couch watching cartoons, on another occasion, defendant touched J.B.'s penis. When J.B.'s mother was gone, defendant directed J.B. into his mother's bedroom and told J.B. to take his pants off. Defendant touched J.B.'s private area. J.B.'s mother came home and caught defendant in her bedroom. She told him to leave. J.B. told his counselor that he was touched numerous times in his private areas.
Defendant denied molesting the boys. He claimed he was never alone with them.
PROCEDURE
The jury convicted defendant of three counts of lewd and lascivious conduct on D.B. and three counts of lewd and lascivious conduct on J.B., pursuant to Penal Code section 288, subdivision (a). (Hereafter, unspecified code references are to the Penal Code.) It found true the allegation that defendant committed the offenses against more than one victim. (§ 667.61, subd. (b).) Defendant waived jury trial on a prior rape conviction allegation, and the court found the allegation true.The trial court sentenced defendant to 15 years to life for each count, consecutively, pursuant to section 667.61, subdivision (b). The court doubled the term imposed because of the prior rape conviction pursuant to section 1170.12. The total state prison term imposed was 180 years to life.
DISCUSSION I Prior Sexual Offense Evidence
See footnote, ante, page 476.
Over defendant's objections based on statute and constitution, the trial court allowed the prosecution to present evidence of a rape defendant committed in 1993. On appeal, defendant contends the trial court abused its discretion and violated his constitutional due process and fair trial rights. The contention is without merit. The defense and prosecution stipulated that, rather than having the developmentally disabled victim of the prior rape testify, the following stipulation would be read to the jury: "On August 25, 1993 defendant had sexual intercourse with Lynn, age 24 at the time, who is developmentally disabled and a client of Far Northern Regional Center. It is apparent upon meeting Lynn that she is mentally challenged. "According to the police report, the defendant and a friend of his approached Lynn in the laundry room of her apartment complex and greeted her by name and she assumed she knew them. They all went to her apartment. After much coaxing, defendant convinced Lynn to agree to leave with him and the other man to go to the liquor store. They went to the store and bought some alcohol. Lynn had repeatedly said that she did not want to go but she felt she should. After they went to the store Lynn was frightened and repeatedly said that she wanted to go back home. "The defendant drove her to a field by the Redding Airport. Defendant started talking to Lynn and trying to convince her to have sex with him. She repeatedly told him that she did not want to. Lynn made up excuses to avoid having sex, for example, by stating that she was on her period. Lynn felt very scared and wanted to scream and run away but thought no one would be able to hear her. "The other man took a flashlight and went for a walk. Both defendant and Lynn were standing outside of the car. The defendant told Lynn to take her clothes off. Lynn felt like she had to or the defendant would hurt her, so she removed her pants and underwear. Lynn kept telling the defendant no, but he told her to lay down on the ground and began to get rough with her. He then put . . . his penis inside of her, and it hurt her a lot because he was so rough. Defendant . . . began to fondle her breasts and Lynn told him to stop[. D]efendant stopped. He repeatedly attempted to fondle her breasts, but Lynn kept telling him to stop and he would. "Afterward the other man returned and the defendant drove Lynn back to her house. Although Lynn was scared and frightened, she did not say that the defendant threatened her with any harm. Lynn was examined by a doctor who confirmed that she suffered no injuries. "The defendant plead guilty to having violated [section 261, subd. (a)(1)] which defines rape under these circumstances as an act of sexual intercourse accomplished with a person not the spouse of the perpetrator where a person is incapable because of a mental disorder or developmental disability of giving legal consent. "For this crime the defendant was punished." Evidence Code 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 [Evidence Code] [s]ection 1101, if the evidence is not inadmissible pursuant to [Evidence Code] [s]ection 352." Evidence Code section 352 gives the trial court discretion to exclude evidence, including evidence otherwise admissible under Evidence Code section 1108, if the probative value of the evidence 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." (Evid. Code, § 352.) We review the trial court's ruling for an abuse of discretion. ( People v. Frazier (2001) 89 Cal.App.4th 30, 42.) "The trial court enjoys broad discretion under Evidence Code section 352 in determining whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time and this discretion is built into Evidence Code section 1108, subdivision (a). The exercise of this statutory discretion will not be disturbed on appeal `"except on a showing that the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." . . .'" ( People v. Frazier, supra, 89 Cal.App.4th at p. 42, fn. omitted.) By discussing only the differences between the current offenses and the prior offense, defendant attempts to establish that admission of the prior conduct evidence was an abuse of discretion. He asserts: "[T]he rape case involved a one-time act of sexual intercourse with a 24-year-old adult developmentally disabled woman outdoors in a field near an airport. [Citation.] [¶] The charged and uncharged acts were dissimilar in almost every respect. The nature of the acts, settings, and ages and genders of the complaining witnesses in the two were markedly different." Based on this summary of the differences, defendant asserts the evidence of the prior rape did not logically tend to support the convictions in the current case. Contrary to defendant's approach, we do not look solely at the differences between the prior and current conduct in determining whether the evidence of the prior conduct is admissible. When the trial court ruled in favor of the prosecution, it reasoned that, in the prior rape and the current offenses, defendant exploited the vulnerability of victims who were unable to resist. He placed them in situations in which they had no protection from him. Based on these similarities, the trial court found that the evidence of the prior rape was probative and that prejudice, possible confusion of the jury, and consumption of time did not substantially outweigh the probative value. We agree with the trial court for the same reasons. Although there were several differences between defendant's prior rape and the current offenses, the similarities were sufficient to show defendant's propensity for committing sexual crimes against particularly vulnerable victims. Accordingly, the trial court did not abuse its discretion. When a trial court properly admits prior sexual offense evidence pursuant to Evidence Code sections 352 and 1108, the admission of the evidence does not violate constitutional due process and fair trial rights. ( People v. Falsetta (1999) 21 Cal.4th 903, 910-922.) Because we find no abuse of discretion in admitting the evidence of the prior rape, we also conclude the admission of the evidence did not violate defendant's constitutional due process and fair trial rights.
II Jury Instruction on Prior Sexual Offense
Defendant claims that the jury instruction given concerning the prior rape evidence, Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 1191, violated his due process rights because it allowed the jurors to infer guilt in the current offenses from the fact that he committed the prior rape. We disagree.
The court instructed the jury as follows: "From [the prior rape] evidence you may, but are not required to, conclude from that 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 and did commit the offense charged here. This evidence is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the offenses charged here. The People must still prove each element of every charge beyond a reasonable doubt. Do not consider this evidence for any other purpose except for the limited purpose of determining the defendant's credibility."
As defendant acknowledges, his contention that the language of this instruction violated his due process rights was rejected by the California Supreme Court in People v. Reliford (2003) 29 Cal.4th 1007 [ 130 Cal.Rptr.2d 254, 62 P. 3d 601]. Although the instruction considered in Reliford was the older CALJIC No. 2.50.01, there is no material difference in the manner in which each of the instructions allows the jury to conclude from the prior conduct evidence that the defendant was disposed to commit sexual offenses and, therefore, likely committed the current offenses. CALCRIM No. 1191, as given here, cautions the jury that it is not required to draw these conclusions and, in any event, such a conclusion is insufficient, alone, to support a conviction. Based on Reliford, we therefore reject defendant's contention that the instruction violated his due process rights.
Defendant also contends the instruction violated his due process rights because prior rape evidence admitted at trial did not tend, logically, to prove defendant committed the current offenses. He bases this contention on the flawed reasoning that the prior rape and the current offenses were dissimilar. We disagree that the prior rape of a developmentally disabled woman and the current offenses were as dissimilar as defendant would have us believe. The fact that defendant committed a sexual offense on a particularly vulnerable victim in the past logically tends to prove he did so again with respect to the current offenses. We therefore reject this argument.
III Cruel and Unusual Punishment
In his statement in mitigation, defendant asserted the trial court needed to find a way, such as by striking the prior conviction, to reduce defendant's sentence so that it did not violate constitutional cruel and unusual punishment proscriptions. On appeal, defendant amplifies his argument. Characterizing his sentence as a "de facto term of life without the possibility of parole" and complaining that it leaves "no realistic hope of surviving and serving the 153 years" to become eligible for parole, defendant argues the 180-years-to-life sentence is cruel and unusual and violates the federal and state Constitutions. The argument is unconvincing.
A. Federal Constitution A punishment is cruel and unusual under the United States Constitution if it involves the "unnecessary and wanton infliction of pain" or if it is "grossly out of proportion to the severity of the crime." ( Gregg v. Georgia (1976) 428 U.S. 153, 173 [ 49 L.Ed.2d 859, 874-875].) Defendant argues that his sentence of 180 years to life for multiple counts of child molestation is grossly disproportionate to the crimes. He states that there is no reasonable probability that he will be able to serve the full term and, therefore, his sentence must be reduced. As discussed below (because it is really an argument under the state Constitution), this argument lacks any binding authority, and we have previously rejected it.
B. State Constitution "A tripartite test has been established to determine whether a penalty offends the [state] prohibition against cruel and unusual punishment. First, courts examine the nature of the offense and the offender, `with particular regard to the degree of danger both present to society.' Second, a comparison is made of the challenged penalty with those imposed in the same jurisdiction for more serious crimes. Third, the challenged penalty is compared with those imposed for the same offense in other jurisdictions. [Citations.]" ( People v. King (1993) 16 Cal.App.4th 567, 572.) The defendant bears the burden of establishing that the punishment prescribed for his offense is unconstitutional under this test. ( Ibid.) Instead of arguing that his sentence violates the state's proscription on cruel and unusual punishment under the tripartite test, defendant encourages us to adopt a different approach. His argument is based on a concurring opinion of the late Justice Stanley Mosk. ( People v. Deloza (1998) 18 Cal.4th 585, 600-602 (conc. opn. of Mosk, J.).) Justice Mosk, writing alone, opined that imposing a sentence that the defendant cannot possibly serve, such as the term of 180 years to life in this case, is unconstitutionally excessive. ( Ibid.) As defendant fails to note, we have disagreed with Justice Mosk's concurrence in Deloza, which concurrence has no binding effect on us. ( People v. Byrd (2001) 89 Cal.App.4th 1373, 1383.) Other than positing his "de facto term of life without the possibility of parole" theory, defendant makes no attempt to establish that the sentence was cruel and unusual under the test noted above. Since he bears the burden of establishing a violation of the constitution and he proffers as his sole argument one that we have previously rejected, we need not consider further his contention that the sentence is cruel and unusual. In any event, the sentence does not violate the state Constitution, using the tripartite test. First, despite defendant's argument that he has not injured anyone in his various sexual assaults, he is a predator who is a danger to society and not only deserves imprisonment but is appropriately removed from access to other vulnerable victims. Second, the sentence is not greater than those imposed for more serious crimes. Lewd and lascivious conduct against a child is a violent felony (§ 667.5, subd. (c)(6)), and repeat offenders are properly punished more severely than first-time offenders ( People v. Martinez (1999) 71 Cal.App.4th 1502, 1512). Third and finally, defendant offers no comparison to punishment for the same crime in other jurisdictions.
IV Consecutive Sentences
See footnote, ante, page 476.
In his opening brief, defendant argued that the imposition of consecutive terms was unconstitutional because the trial court, rather than a jury, made the factual findings upon which the court based its decision to sentence defendant consecutively. After the United States Supreme Court decided Cunningham v. California (2007) 549 U.S. ___ [ 166 L.Ed.2d 856] ( Cunningham), defendant filed a supplemental brief asserting that case requires reversal. We disagree. At sentencing, the parties discussed with the trial court the statutory requirements with respect to consecutive sentencing. Acknowledging that, in order to sentence consecutively, the trial court would have to find the offenses were committed on separate occasions, the court found that the facts supported consecutive sentences and, therefore, imposed the terms consecutively. Defense counsel objected that imposition of consecutive sentences required jury findings. Cunningham does not require that factual findings supporting imposition of consecutive sentences be made by a jury. That case dealt with imposing the upper term under the California determinate sentencing law and did not address the situation in which the court imposes consecutive sentences. ( People v. Ybarra (2007) 149 Cal.App.4th 1175 [holding that Cunningham did not overrule People v. Black (2005) 35 Cal.4th 1238, 1244, on issue of consecutive sentencing].) Section 669 required the trial court to determine whether concurrent or consecutive sentencing was appropriate. It does not provide for a presumption in favor of concurrent sentencing. Therefore, the court's imposition of consecutive sentences based on its own factual findings, pursuant to sections 667.61 and 1170.12, did not violate defendant's fair trial and due process rights.
DISPOSITION
The judgment is affirmed.Sims, Acting P. J., concurred.
I concur except as to part IV, as to which I concur in the result.
A petition for a rehearing was denied August 14, 2007, and appellant's petition for review by the Supreme Court was denied September 25, 2007, S155502.