Opinion
G044235 Super. Ct. No. 09HF0320
03-02-2012
THE PEOPLE, Plaintiff and Respondent, v. JUDSON GILLARD LEE, Defendant and Appellant.
Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed as modified.
Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
Judson Gillard Lee appeals from a judgment after a jury convicted him of two counts of committing a lewd and lascivious act upon a child under 14 years of age. Lee argues the following: (1) the trial court erroneously excluded evidence of the victim's prior inconsistent statement; (2) insufficient evidence supports one of his convictions for committing a lewd and lascivious act upon a child under 14 years of age; (3) this court should review the victim's school records to determine whether they contain any evidence that would impeach the victim's credibility; (4) the court erroneously imposed overbroad probation conditions; and (5) the court erroneously ordered the payment of the court security fee and court facilities assessment as probation conditions. Lee's fourth claim has some merit but otherwise his contentions are unpersuasive. We affirm the judgment as modified.
FACTS
T.M. was born in July 1994. On July 4, 2007, 12-year-old T.M. and her parents met Lee at an Independence Day block party; they were neighbors. T.M.'s parents befriended Lee, and T.M. befriended Lee's son, N.L. T.M. soon began seeing Lee daily, oftentimes in his garage. T.M. talked to Lee about her problems and school, and Lee told T.M. she was pretty. T.M. believed Lee cared about her and considered him to be a friend. Soon, T.M. developed a "crush" on Lee and their conversations became intimate.
Before Christmas 2007, Lee picked up N.L., T.M., and T.M.'s friends at the Spectrum Center and drove them home. When they got home, Lee hugged T.M. and kissed her on the lips in a passionate manner. T.M. later told her friends she liked Lee.
T.M. continued to spend time with Lee at his house. They would discuss her sex life, how T.M. felt about Lee, and their relationship.
On one occasion in his garage, Lee told T.M. it would not be illegal "if [she] fingered [her]self because he [was not] touching [her][.]" She did not masturbate in front of Lee. On another occasion in the garage, Lee asked T.M. to suck his penis and told her it would not be illegal because she was touching him, and he was not touching her. She did not perform oral sex on Lee. Lee often told T.M. that he wished she were 18 years old because they could have sex. During this time period, Lee sent T.M. a text asking her to send him a photograph of her breasts. She did not send Lee a photograph of her breasts. One time, when T.M. asked Lee for a cigarette, Lee told her to show him her "tits" if she wanted a cigarette. Lee offered alcohol to T.M. and her friends. Another time, Lee showed T.M. and her friends a pornographic website.
Lee met Felicia Garrabrant at a Christmas party at T.M.'s house in December 2007. Garrabrant had known T.M.'s father for 35 years and had known T.M. since she was born. Lee and Garrabrant began dating and she moved into his house some time later. T.M. saw Lee less often and grew to resent Garrabrant. Lee told T.M. that he really did not like Garrabrant but he dated her because she cleaned his house. Lee told T.M. that she was prettier than Garrabrant.
On March 17, 2008, T.M. went to Lee's house to get lemons. T.M. walked inside the house, and Lee came downstairs; he had been at the bar. In the entryway, Lee pushed T.M. against the wall and began kissing her neck and then her lips. Lee led T.M. upstairs to his bedroom, and they laid down on his bed. Lee asked T.M. to take off her shirt so he could see her breasts, but she did not. He touched her breasts over her shirt. Lee asked T.M. to take off her pants so he could "eat [her] out." T.M. heard Garrabrant come home, and when she entered the bedroom, T.M. left. Later, T.M. asked Lee if he remembered what had happened because he appeared to be drunk. Lee replied, "If I wasn't drunk, it wouldn't have been right."
Sometime later, T.M. and her friend were at Lee's house drinking alcohol. T.M.'s friend and Lee's son, N.L. were in the living room, while T.M. was in the garage. Lee came home from T.M.'s house, saw T.M. was intoxicated, and tried to take her home. T.M. said she would go home if Lee kissed her. Lee kissed her on the lips two or three times and then took her home.
After Garrabrant spoke to T.M's parents about her concerns and T.M.'s father witnessed Lee lying on top of T.M. and her friend during a vacation, a social worker interviewed T.M. at school in September 2008. T.M. denied her neighbor ever kissed her on the lips or touched her genitals. T.M. did not reveal her neighbor's identity and was not truthful because she liked Lee and did not want him to get in trouble.
In February 2009, a social worker from the Child Abuse Services Team, Ann Rasmussen, interviewed T.M. The interview was videotaped. During the interview with Rasmussen, T.M.'s version of the events that transpired between her and Lee were nearly identical to what is detailed above. We will not repeat them again. T.M. did add though that she flirted with Lee all the time but he "could turn it off and on" depending on whether they were alone. T.M. could not explain her attraction to Lee. She explained, "I don't know why at all [be]cause he's not even cute or anything and he's like nothing he doesn't even have like money, he lives with his mom you know." T.M. stated she was 13 years old when Lee kissed her and "everything stopped" in June.
About two weeks later, Orange County Sheriff's Investigator Sandra Longnecker asked T.M.'s mother to make a recorded, covert telephone call to Lee. During the telephone call, Longnecker prompted T.M.'s mother to ask certain questions and advised her how to respond. Lee initially denied he kissed T.M. When T.M.'s mother told Lee she knew about his text message asking T.M. to send him a picture of her breasts, Lee said it "was just to get her off [his] back." Lee said he never wanted to nor did he ever do anything with T.M, but "[T.M.] just never stopped . . . she just kept you know pushing and pushing . . . ." Lee admitted he kissed T.M. one time while they were on his bed but he was intoxicated and T.M. was tormenting him. He claimed it was not "a make out kiss or anything like that it was just basically you know there here's a kiss a peck you know." Lee admitted he and a friend told T.M. they would give her a cigarette if she showed them her breasts. When T.M.'s mother asked Lee whether he asked T.M. to touch herself, Lee replied, "[I]t's like you know you wanna [sic] do something fine go ahead and do it's like it was basically you know call her on it . . . ."
An audiotape of the telephone call was played for the jury.
An information charged Lee with three counts of committing a lewd act upon a child under 14 (Pen. Code, § 288, subd. (a)) (count 1-The Spectrum Incident; count 2-The Lemon Incident; and count 3-The Garage Incident).
All further statutory references are to the Penal Code, unless otherwise indicated.
At trial, the prosecutor offered T.M.'s testimony. In addition to her testimony concerning the incidents we provide above, T.M. testified regarding a text Lee sent to her concerning a photograph of her breasts. T.M. stated she was home one evening with her friends when Lee sent her a text asking her to send him a photograph of her breasts. T.M. stated she never offered to send and never sent Lee any photographs of herself. On cross-examination, T.M. denied she offered to send Lee a photograph of her breasts or sending such a photograph. The following colloquy then occurred:
"[Defense counsel]: And you said that . . . Lee initiated 'send me a picture of your boobs'?
"[T.M.]: Yes.
"[Defense counsel]: Well, wasn't it you who kept asking him, 'hey, you want a picture of my breasts,' or 'do you want a picture of my breasts'?
"[T.M.]: No.
"[Defense counsel]: He said, 'Go ahead and send it'?
"[T.M.]: No.
"[Defense counsel]: And you didn't tell that to any of your friends either?
"[T.M.]: No.
"[Defense counsel]: You didn't have that conversation with [your friend L.H.][?]
"[T.M.]: No.
"[Defense counsel]: About sending pictures of your boobs to . . . Lee?
"[T.M.]: No.
"[Defense counsel]: Okay. Because you wouldn't do that?
"[T.M.]: That is why I didn't.
"[Defense counsel]: You said, 'That is why you didn't'?
"[T.M.]: Yeah.
"[Defense counsel]: What do you mean by that?
"[T.M.]: I never sent a picture of my boobs.
"[Defense counsel]: Because you wouldn't do something like that?
"[Prosecutor]: Objection, calls for speculation, relevance.
"[Trial] court: Overruled.
"[Defense counsel]: You can answer.
"[T.M.]: No.
"[Defense counsel]: No, you wouldn't do something like that?
"[T.M.]: No."
The prosecutor also offered T.M.'s friends' testimony. All four of T.M.'s friends had on some occasion accompanied T.M. to Lee's house, and T.M. had at some point told all of them how she felt about Lee. All testified the relationship between Lee and T.M. was inappropriate because their relationship was flirtatious. One of T.M.'s friends testified T.M. told her about the incident where Lee and T.M. were on a bed together. The same friend also stated T.M. sent Lee texts of a sexual nature. Another friend testified she saw Lee kiss T.M. on the lips. That friend stated T.M. send Lee a text asking him the size of his penis.
After the prosecutor rested, the trial court dismissed count 1 on Lee's motion. Defense counsel then informed the trial court that one of his witnesses, Lee's ex-girlfriend, Rosemarie Taylor, would testify T.M. told her that T.M. sent a photograph of her breasts to high school boys, they showed the photograph to others, and T.M. was embarrassed. Counsel explained he had previously discussed the issue with the prosecutor, and "[the prosecutor] talked to [him] about it and said that was potentially rape shield." Counsel previously told the prosecutor, "[He] could see his point, and so [he] told [the prosecutor] [he] would caution the witness not to get into that." Counsel stated he wanted to elicit Taylor's testimony on the point as a prior inconsistent statement to impeach T.M. The prosecutor replied defense counsel did not comply with the rape shield law (Evid. Code, § 782), the evidence was irrelevant because what T.M. may do with classmates is different than what she would do with Lee, and the prejudicial effect of the evidence outweighed any probative value. The trial court agreed, explaining the evidence had "marginal relevance[]" because "what she does with kids her own age is completely different." The court concluded any probative value of the evidence was outweighed by its prejudicial effect.
Lee offered Garrabrant's testimony. Garrabrant testified she had known T.M. since she was born, as she was a close friend of T.M.'s father, and she and T.M. were very close. Garrabrant explained their relationship changed for the worse after she and Lee started dating. She stated T.M. ridiculed her physical features and commented on how Lee's ex-girlfriends were so pretty. With regard to the incident that occurred on St. Patrick's Day 2008, Garrabrant stated that when she saw T.M., "[T.M.] had a smirk on her face, kind of like, . . . the cat ate the canary." Garrabrant never saw Lee act or say anything inappropriate around T.M.
Lee offered the testimony of a longtime friend, Jeffrey Robinson. Robinson testified he has two teenage daughters and would trust Lee with them without reservation.
N.L. testified on behalf of his father. As to the night T.M. was intoxicated at his house, N.L. explained T.M. and her friend took alcohol from the liquor cabinet. N.L. said T.M. was intoxicated and said, "She wanted to fuck [his] dad." N.L. stated he called his father and when he came home from T.M.'s house, they were in the garage when T.M. tried to take off Lee's belt; Lee resisted. N.L. said his father called Rosemarie Taylor, who was at T.M.'s house, to come help him with T.M. N.L. went inside the house to help T.M.'s friend while Lee was alone with T.M. in the garage waiting for Taylor. N.L. never saw his father do anything inappropriate with T.M.
Finally, Lee offered Taylor's testimony. Taylor testified that when she went to Lee's house, T.M. was intoxicated and kept saying she wanted her first sexual experience with Lee. Taylor stated she saw T.M. try to take off Lee's belt.
After both parties had rested, the trial court stated there was a prior sidebar discussion where defense counsel stated he could produce a witness who would testify he/she saw texts T.M. sent to her friends that showed T.M.'s breasts. The trial court repeated, "[T.M.'s] behavior with her own friends her own age really was not relevant and was more prejudicial than probative . . . ." Defense counsel argued the evidence was a prior inconsistent statement. The court opined the evidence was "tangential to the facts of . . . Lee's case, and that it was more prejudicial than probative."
The jury convicted Lee of counts 2 and 3. The trial court sentenced Lee to five years formal probation and 270 days in jail.
DISCUSSION
I. Exclusion of Evidence
Lee argues the trial court erroneously excluded evidence T.M. sent photographs of her breasts to her classmates because it was a relevant and not unduly prejudicial prior inconsistent statement, and the court's exclusion of the evidence violated his federal constitutional rights. The Attorney General responds: (1) Lee did not comply with the procedural requirements of Evidence Code section 782 for admission of a victim's prior sexual conduct; (2) the evidence had little if any probative value and it was unduly prejudicial; and (3) Lee forfeited his federal constitutional contentions because he did not object on those grounds, and in any event, those claims are meritless. Lee responds he was not required to comply with Evidence Code section 782 because "the evidence of whether [T.M.] texted pictures of her breasts previously went strictly to her credibility and was not sexual conduct under Evidence Code section 782." We address all their contentions below.
A. Evidence Code section 782
Relying on People v. Tidwell (2008) 163 Cal.App.4th 1447 (Tidwell), and People v. Franklin (1994) 25 Cal.App.4th 328 (Franklin), Lee claims Evidence Code section 782 was not applicable because "there was no contention that [T.M.'s] breast picture texting was sexual conduct or an indication of a willingness to engage in sexual conduct, but rather went to her false statements." We disagree.
"Evidence of the sexual conduct of a complaining witness is admissible in a prosecution for a sex-related offense only under very strict conditions. A defendant may not introduce evidence of specific instances of the complaining witness's sexual conduct, for example, in order to prove consent by the complaining witness. (Evid. Code, § 1103, subd. (c)(1).) Such evidence may be admissible, though, when offered to attack the credibility of the complaining witness and when presented in accordance with the following procedures under [Evidence Code] section 782: (1) the defendant submits a written motion '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' [citation]; (2) the motion is accompanied by an affidavit, filed under seal, that contains the offer of proof [citation]; (3) '[i]f 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' [citation]; and (4) if the court, following the hearing, finds that the evidence is relevant under Evidence Code section 780 and is not inadmissible under [Evidence Code] section 352, then it may make an order stating what evidence may be introduced by the defendant and the nature of the questions to be permitted. [Citation.]" (People v. Fontana (2010) 49 Cal.4th 351, 362 (Fontana).)
"[S]exual conduct, as that term is used in [Evidence Code] sections 782 and 1103, encompasses any behavior that reflects the actor's or speaker's willingness to engage in sexual activity. The term should not be narrowly construed." (Franklin, supra, 25 Cal.App.4th at p. 334, fn. omitted.)
Cognizant of the fact the term "sexual conduct" is to be broadly construed, we conclude the act of T.M. photographing her breasts and sending the photographs to her classmates was clearly sexual conduct. Commonly accepted standards of decency expect women to cover their genitalia and breasts in public. When a young woman photographs her breasts and sends that photograph to her male classmates, it is certainly reasonable to conclude she sent the photograph with the intent to arouse. Although we do not go so far as to say such an act expresses a willingness to engage in sexual activity, it certainly is sexual in nature and qualifies as "sexual conduct" as broadly defined. (We will subsequently refer to this evidence as "the sexual conduct evidence".) We turn now to Lee's attempt to analogize this case to Franklin and Tidwell.
In Franklin, supra, 25 Cal.App.4th at page 335, defendant sought to introduce the victim's false statement to her brothers that her mother committed sexual misconduct against her. The Court of Appeal concluded the trial court erroneously excluded the evidence, even though defendant had not complied with Evidence Code section 782. The court explained: "Even though the content of the statement has to do with sexual conduct, the sexual conduct is not the fact from which the jury is asked to draw an inference about the witness's credibility. The jury is asked to draw an inference about the witness's credibility from the fact that she stated as true something that was false. The fact that a witness stated something that is not true as true is relevant on the witness's credibility whether she fabricated the incident or fantasized it." (Ibid.)
In Tidwell, supra, 163 Cal.App.4th at page 1452, defendant sought to introduce victim's allegedly false complaints she had been raped pursuant to Evidence Code section 782. The Court of Appeal, after citing the above language from Franklin, held, "[Evidence Code] [s]ection 782 was inapplicable because it was [the victim's] allegedly false complaints that the defense sought to use as impeachment evidence, not her prior sexual conduct or willingness to engage in sexual activity." (Tidwell, supra, 163 Cal.App.4th at p. 1456.)
Lee seems to confuse the evidence sought to be admitted for impeachment purposes, i.e, the sexual conduct evidence, with the evidence that was previously admitted, i.e., T.M.'s testimony on cross-examination she would not send such a photograph to Lee. In Franklin and Tidwell, defendants sought to admit victims's statements to impeach her credibility. Here, it is not entirely clear what evidence Lee sought to admit to demonstrate T.M. sent her classmates photographs of her breasts. Lee's first offer of proof was his ex-girlfriend, Taylor, would testify T.M. told Taylor that she sent text message photographs of her breasts to classmates. Lee's second offer of proof was he wanted to call a witness who would testify he/she saw the text message photographs. Both the prosecutor and defense counsel expressed concerns to the trial court that this evidence implicated Evidence Code section 782. In fact, defense counsel informed the trial court he had previously discussed this evidence with the prosecutor and they discussed the issue of the applicability of that section. All this confusion could have been easily remedied by a written motion and sealed affidavit with an offer of proof detailing the nature of the evidence sought to be admitted and the basis for its admission.
Lee sought to admit a specific act of T.M.'s sexual conduct (T.M. took a photograph of her breasts and sent the photograph via text to male classmates) to attack her credibility. Lee did not file a written motion or a sealed affidavit with an offer of proof as required by Evidence Code section 782. Consequently, he may not now complain of error. (People v. Sims (1976) 64 Cal.App.3d 544, 554.) Nevertheless, we will address his other contentions.
The trial court did not mention Evidence Code section 782 during its discussion.
B. Relevance and Evidence Code section 352
Lee contends the trial court erroneously excluded the sexual conduct evidence because it was a prior inconsistent statement relevant to T.M.'s credibility and the prior sexual conduct evidence was not unduly prejudicial. We disagree.
Only relevant evidence is admissible at trial. (Evid. Code, § 350.) Relevant evidence is "evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Although "'there is no universal test of relevancy, the general rule in criminal cases [is] whether or not the evidence tends logically, naturally, and by reasonable inference to establish any fact material for the prosecution[.]'" (People v. Freeman (1994) 8 Cal.4th 450, 491.) "'As with all relevant evidence, however, the trial court retains discretion to admit or exclude evidence offered for impeachment. [Citations.] A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 534.)
Evidence Code section 352, however, authorizes a trial court to exclude relevant evidence. "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) For purposes of Evidence Code section 352, prejudice means "'evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. [Citation.]'" (People v. Heard (2003) 31 Cal.4th 946, 976.)
With respect to the relevance issue, Lee now seems to argue that because T.M. had not been permanently excused as a witness, defense counsel intended to recall her to the stand to question her on this point. This is inconsistent with the two offers of proof detailed above. In any event, the sexual misconduct evidence had little if any probative value. As relevant to this issue, all defense counsel's questions concerned who initiated the idea of T.M. sending text messages of photographs of her breasts to Lee. Counsel asked T.M. whether she told L.H. about sending photographs of her breasts to Lee. Although not the model of clarity, defense counsel asked, "Because you wouldn't do that?" presumably meaning she would not text a photograph of her breasts to Lee. T.M. eventually replied, "I never sent a picture of my boobs." T.M. presumably meant she never sent Lee a photograph of her breasts in a text message. After the trial court overruled the prosecutor's relevancy objection, defense counsel stated, "[Y]ou wouldn't do something like that?" Based on the context of the entire discussion, we interpret T.M.'s negative response to mean she would never text a photograph of her breasts to Lee.
The sexual conduct evidence Lee sought to admit was of little relevance to the issues before the jury. Whether T.M. would send a photograph of her breasts to male classmates is of little relevance to whether she would send such a photograph to Lee. Additionally, the sexual conduct evidence had little if any relevance on her credibility. As we explain above, we interpret T.M.'s responses to mean she never texted a photograph of her breasts to Lee and she would not text such a photograph to Lee. Contrary to Lee's assertion otherwise, evidence T.M. texted a photograph of her breasts to her male classmates did not "directly contradict[]" T.M.'s prior testimony. Thus, the sexual conduct evidence was of little, if any, relevance.
We recognize defense counsel's questions and T.M's responses could be interpreted more broadly to mean T.M. would never text a photograph of her breasts to anyone. After T.M. responded she never sent a picture of her breasts to Lee, defense counsel inquired, "Because you wouldn't do something like that?'" (Italics added.) T.M. responded, "No." Defense counsel repeated, "[Y]ou wouldn't do something like that?" (Italics added.) T.M. again responded, "No." One could interpret defense counsel's questions and T.M.'s answers more broadly to mean that she would never text a photograph of her breasts to Lee or "do something like that," text a photograph to anyone, including her classmates. (Italics added.) But defense counsel did not follow up with additional questions to clarify that was the point he was trying to establish. Based on the ambiguous nature of defense counsel's questions and T.M.'s responses, the trial court did not abuse its discretion in concluding the evidence was of little probative value.
As to Evidence Code section 352, we conclude admission of the sexual misconduct evidence would have been unduly prejudicial to the prosecution compared to its very minimal relevance. Evidence T.M texted a photograph to her male classmates would only serve to embarrass T.M. and could cause the jury to consider her a person of low moral character. (Fontana, supra, 49 Cal.4th at p. 370 [Legislature determined sexual assault victims require greater protections than other witnesses against surprise, harassment, and unnecessary invasion of privacy].) Additionally, the jury could rely on the sexual conduct evidence to impermissibly infer that T.M. willingly engaged in sexual conduct with Lee. T.M.'s willingness to engage in such conduct is not a defense to the charged offenses. (People v. Soto (2011) 51 Cal.4th 229, 238.) Moreover, the sexual conduct evidence was cumulative as T.M.'s friends testified T.M. sent Lee text messages of a sexual nature. Thus, there was evidence from which the jury could reasonably conclude T.M. had asked Lee how big his penis was or offered to send him a photograph of her breasts, or both. Therefore, the trial court properly concluded the undue prejudice of the evidence outweighed its minimal probative value. (People v. Prince (2007) 40 Cal.4th 1179, 1237 [court's weighing of prejudice against probative value inferred from record despite absence of express statements by trial court].)
C. Constitutional Issues
Lee claims the exclusion of the sexual conduct evidence violated his federal constitutional rights. The Attorney General responds Lee forfeited appellate review of these issues because he did not object on these grounds, and alternatively, his claims are meritless. We will address the merits of his claims. (People v. Partida (2005) 37 Cal.4th 428, 435 [defendant may make narrow due process argument based on his Evid. Code, § 352 argument]; People v. Catlin (2001) 26 Cal.4th 81, 131, fn. 11 [in the interests of justice and to avoid a later claim of ineffective assistance of counsel we will address the merits of his claim].)
"'Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants "a meaningful opportunity to present a complete defense."' [Citation.] This right is abridged by evidence rules that 'infring[e] upon a weighty interest of the accused' and are '"arbitrary" or "disproportionate to the purposes they are designed to serve."' [Citation.]" (Holmes v. South Carolina (2006) 547 U.S. 319, 324.)
"As a general matter, the '[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense.' [Citations.] Although completely excluding evidence of an accused's defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense. [Citation.] If the trial court misstepped, '[t]he trial court's ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.' [Citation.] Accordingly, the proper standard of review is that announced in People v. Watson (1956) 46 Cal.2d 818, 836 . . . [(Watson)], and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension (Chapman v. California (1967) 386 U.S. 18, 24 . . . ." (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.)
Here, the trial court's exclusion of the sexual conduct evidence did not impair Lee's right to confront the witnesses against him or deny him his right to present a defense. As we explain above, the trial court exercised its discretion and properly ruled the sexual conduct evidence inadmissible after concluding the evidence's prejudicial effect outweighed its marginal probative value. The sexual conduct was on a minor point. The sexual conduct evidence did not directly contradict T.M.'s testimony, and her conduct with male classmates is of little if any relevance to her conduct with Lee.
Finally, it is not reasonably probable the result of the proceeding would have been different had the trial court admitted the sexual conduct evidence. Lee admitted he kissed T.M. on his bed in a recorded telephone call with T.M.'s mother. This admission buttressed T.M.'s detailed testimony about the two incidents. Whether T.M. texted her male classmates a photograph of her breasts was largely irrelevant. Lee's admission bolstered T.M.'s credibility.
II. Sufficiency of the Evidence-Count 3
Lee contends insufficient evidence supports his conviction for count 3 because there was no substantial evidence the offense occurred before T.M. turned 14 years of age. Not so.
Lee does not claim there was insufficient evidence to support any of the other elements of section 288, subdivision (a).
"'"In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" [Citation.] We apply an identical standard under the California Constitution. [Citation.] "In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court 'must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" [Citation.] The same standard also applies in cases in which the prosecution relies primarily on circumstantial evidence. [Citation.]' [Citation.] [¶] We therefore review the record in the light most favorable to the prosecution to determine whether the challenged convictions are supported by substantial evidence, meaning 'evidence which is reasonable, credible, and of solid value.' [Citation.] In contrast, 'mere speculation cannot support a conviction. [Citations.]' [Citation.] 'In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]'" (People v. Mejia (2007) 155 Cal.App.4th 86, 93.)
Section 288, subdivision (a), prohibits any person from "willfully and lewdly commit[ting] any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child . . . ." (Italics added.)
Here, the information alleged Lee committed count 2, the Lemon Incident, sometime between March 1, 2008, and March 31, 2008. The information alleged Lee committed count 3, the Garage Incident, sometime between April 1, 2008, and June 30, 2008. T.M. turned 14 years old in July 2008.
The evidence concerning when count 3 occurred came from Taylor, N.L., and T.M.'s CAST interview with Rasmussen. Taylor answered in the affirmative when defense counsel asked her whether she recalled an incident in Lee's garage in 2008. N.L. answered in the affirmative when defense counsel asked him whether he remembered an incident in Lee's garage in the summer of 2008. Although during her CAST interview T.M. initially did not remember whether the Garage Incident occurred before or after the Lemon Incident, T.M. stated the Garage Incident occurred when she was 13 years old. T.M. responded in the negative when Rasmussen asked her whether she had turned 14 years old yet. Additionally, T.M. stated "everything stopped[]" the end of her eighth grade school year, which from the evidence presented at trial would have been June 2008. T.M. turned 14 the following month. This was sufficient evidence for the jury to conclude T.M. was under 14 years of age at the time of the Garage Incident.
III. T.M.'s School Records
Lee claims the trial court abused its discretion when it did not review in camera T.M.'s school records. He adds that even if the court did conduct such a hearing, this court should review the records to determine whether T.M.'s school records include any evidence affecting her credibility. As we explain below, the trial court properly concluded the subpoenaed records do not contain any material information that would have impeached T.M.'s credibility.
"A ruling on a motion to compel discovery—like that here—is subject to review for abuse of discretion. [Citations.]" (People v. Ashmus (1991) 54 Cal.3d 932, 979, overruled on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117.) In order to determine whether the trial court has abused its discretion, the appellate court must independently review the records in question. (See People v. Avila (2006) 38 Cal.4th 491, 606-607.)
Here, Lee served a subpoena duces tecum on T.M.'s school district and high school. Judge Gregory Jones reviewed the records in camera. Judge Jones stated, "I'm going to go through them here." With regard to one packet of records from the high school, Judge Jones explained, "My review of these records indicates that the only documents in this packet are documents relating exclusively to academic issues: grades, cumulative attendance records, test scores. There are no records at all relating to disciplinary issues. No records at all indicating that there were ever any problems with discipline or behavior. There were a number of [school] type records. But nothing that would relate to credibility, honesty, or veracity, or the particular facts of this case." With regard to the second packet of records from [the] high school, Judge Jones said, "And the comments that I made in regards to the previous packet apply equally to this packet. The records in this packet are almost exclusively academic. By that I mean grade-related, attendance-related, [and] test score-related. . . . But no records whatsoever dealing with discipline, behavior, or records that would in any way be relevant to the facts of this case." As to the school district records, Judge Jones stated, "And again . . . without repeating myself for the third time, these records fall into exactly the same category as the previous two packets of documents. [¶] In summary, I do not find that there are any documents here that are relevant to this case at all for purposes of appellate review."
Although Judge Jones indicated the school records should be sealed and kept in the court file, Judge Patrick Donahue ordered the record returned at the end of trial. Pursuant to an order of this court, the school district and the high school submitted T.M's school records to this court for our review.
Contrary to Lee's assertion otherwise, it is clear Judge Jones reviewed T.M.'s school records in camera and determined the records concerned T.M.'s academic record and not any discipline issues. Thus, Lee's claim the trial court did not review the school records in camera and his claim his confrontation rights were violated is meritless.
We have reviewed the records Lee subpoenaed. We agree with the trial court, and we conclude these school records do not contain any material information that would have assisted Lee in this case or would have had any effect on the outcome of this case. There is nothing in the school records that would have impeached T.M.'s credibility.
IV. Probation Conditions
Lee contends the trial court erroneously imposed three probation conditions because they are unreasonable and unconstitutionally vague. We agree one probation condition is overbroad and must be stricken.
The trial court recognized Lee's objections to probation conditions 33, 39, and 41 but did not provide any rationale for imposing them.
--------
Over defense counsel's objection, the trial court imposed the following probation conditions:
"33. Do not own, use or possess any types of equipment designed for the taking or viewing of photographs, whether in still, digital or video form, without written permission of the [p]robation [o]fficer."
"39. Do not own, use, or possess any type of toys, video games, or similar items designed for the entertainment of children, without written permission of the probation officer."
"41. Submit to continuous electronic monitoring, Global Positioning System (GPS) monitoring, or other device as directed by your probation officer."
A. Reasonableness
Relying on People v. Lent (1975) 15 Cal.3d 481 (Lent), Lee claims the above-mentioned probation conditions are unreasonable. Not so.
Trial courts have broad discretion in determining appropriate probation conditions. (Lent, supra, 15 Cal.3d at p. 486.) A condition of probation is invalid as unreasonable if it: (1) has no relationship to the crime of which the defendant was convicted; (2) relates to conduct itself not criminal; and (3) requires or forbids conduct not reasonably related to future criminality. (Ibid.)
1. Probation Conditions 33 & 39-Photography Equipment, Toys, and Video Games
Although Lee was not charged with or convicted of child pornography, the jury did convict him of two counts of committing a lewd and lascivious act upon a child under 14 years of age. It is certainly reasonable to conclude that committing a lewd act on a minor bears a strong connection to child pornography. Indeed, the jury heard testimony Lee asked T.M. to text him a photograph of her breasts. Additionally, there was testimony Lee showed T.M. and a friend a pornographic website. Thus, the probation conditions prohibiting Lee from owning, using, or possessing photographic equipment, toys, video games, or other similar items designed for the entertainment of children is reasonably related to the prevention of future pornographic criminality and unlawful sexual activity with a minor.
2. Probation Condition 41-Global Positioning System Tracking
Section 1210.7, subdivision (a), authorizes a county probation department to "utilize continuous electronic monitoring to electronically monitor the whereabouts of persons on probation . . . ." Additionally, the Legislature has authorized electronic monitoring for high-risk sex offenders. (§§ 1202.8, 1203f.)
In re R.V. (2009) 171 Cal.App.4th 239, 247 (R.V.), upheld the use of a GPS tracking device as a juvenile probation condition. The court explained that given minor's criminal history and violation of probation conditions, the GPS monitoring was reasonably related to his past behavior and likely to deter future criminality. The court reasoned GPS monitoring would have allowed the probation department to determine whether minor was complying with the other probation conditions. (Ibid.)
Here, the GPS monitoring system permits the probation department to determine whether Lee is complying with his probation conditions. Probation condition 34 prohibits Lee from going near T.M.'s home, school, or place of employment. Other probation conditions forbid Lee from frequenting businesses or conventions where sexually oriented materials are sold or viewed, gentlemen's clubs or massage parlors, bars or liquor stores, or places where minors congregate. Thus, the probation condition requiring Lee to be electronically monitored is reasonably related to the prevention of future pornographic criminality and unlawful sexual activity with a minor.
Relying on R.V., supra, 171 Cal.App.4th 239, Lee complains that because the psychologist who assessed him concluded he is not "a risk of harm to the victim . . . or other minor females in the community[,]" electronic monitoring is unreasonable. There is no requirement an adult probationer be considered a high risk to warrant electronic monitoring. As we explain above, the Legislature authorized electronic monitoring for all adult probationers. (§ 1210.7, subd. (a).) Thus, the probation condition requiring Lee to be electronically monitored is reasonably related to compliance with his other probation conditions and the prevention of unlawful sexual activity with a minor.
B. Vagueness and Overbreadth
The underpinning of a vagueness challenge is the due process concept of "fair warning." (People v. Castenada (2000) 23 Cal.4th 743, 751.) The rule of fair warning consists of "the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders." (Ibid.) The vagueness doctrine bars enforcement of "'a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.'" (People ex. rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115.) "[A]bstract legal commands must be applied in a specific context," and, although not admitting of "'mathematical certainty,'" the language used must have "'reasonable specificity.'" (Id. at pp. 1116-1117.)
We may uphold those conditions, even though they restrict a defendant's exercise of constitutional rights, if they are carefully tailored and reasonably related to the compelling public interests of rehabilitation and protection of the public. (People v. Jungers (2005) 127 Cal.App.4th 698, 704.) We review facial challenges to probation conditions de novo. (In re Sheena K. (2007) 40 Cal.4th 875, 885-888.)
1. Probation Condition 33-Photography Equipment
Lee asserts probation condition 39 is overbroad because it is not narrowly drawn to prohibit possession of the types of items that were unacceptable and the trial court did not articulate a compelling state interest justifying the prohibition. We conclude probation condition 33 specifies what Lee is prohibited from possessing, photographic equipment, and there is a compelling state interest in prohibiting him from possessing those items. The probation condition prohibits Lee from using, owning, or possessing "any types of equipment designed for the taking or viewing of photographs, whether in still, digital or video form, without written permission of the probation officer." This condition clearly delineates what Lee may and may not possess—equipment designed to take still photographs or videos. The compelling state interest is to prevent Lee from photographing or making videos of female minors. Needless to say, the state has a compelling interest in protecting minors. (People v. Hsu (2000) 82 Cal.App.4th 976, 984 [state's compelling interest protecting minors from being seduced to engage in sexual activity].)
2. Probation Condition 39-Toys and Video Games
Lee contends probation condition 39 is overbroad because it is not narrowly drawn to prohibit possession of the types of items that were unacceptable. The Attorney General replies it is not overbroad because it is limited to those items designed for the entertainment of children. We agree with Lee.
We conclude the probation condition prohibiting Lee from possessing "any type of toys, video games, or similar items designed for the entertainment of children" is unconstitutionally vague. The probation condition does not specify the items within the possession prohibition. A certain item may be an indication of Lee's intent to lure minors to his residence in one context but not in another. The probation condition does not specify the items within the possession prohibition. To provide fair warning to Lee of the items he may not possess and to prevent arbitrary enforcement, we determine probation condition 39 is unconstitutionally vague and thus invalid.
3. Probation Condition 41-Global Positioning System Tracking
Lee complains the trial court did not articulate a compelling state interest in requiring him to be subject to electronic monitoring. We conclude there is a compelling state interest.
In R.V., supra, 171 Cal.App.4th at page 248, the court ordered GPS monitoring for a minor was not "'arbitrary, capricious, or harassing[]'" because the GPS requirement enabled the probation department to ensure minor complied with other probation conditions and would do no more than indicate his location at any particular time. Similarly, here, the GPS requirement was reasonably designed to monitor Lee's whereabouts to ensure he stayed away from T.M., any adult shops, conventions, or clubs, bars and liquor stores, and any place frequented by children. As we explain above, the state has a compelling interest in protecting children.
In sum, probation conditions 33 and 41 were reasonable and constitutionally valid. Although probation condition 39 was reasonable, it was overbroad and invalid. We strike probation condition 39. As the trial court has continuing jurisdiction of Lee during probation, the court may choose to narrowly tailor the probation condition to serve a compelling state interest.
V. Fee & Assessment
Relying on People v. Kim (2011) 193 Cal.App.4th 836, 842, Lee argues the trial court erred in imposing the section 1465.8, subdivision (a)(1), security fee and Government Code section 70373, subdivision (a)(1), assessment as conditions of probation. The Attorney General concedes the error. We conclude there was an error but not the error the parties complain about.
"Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385 (Zackery).) "Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts." (People v. High (2004) 119 Cal.App.4th 1192, 1200.) "The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment." (Zackery, supra, 147 Cal.App.4th at pp. 387-388.)
Both Lee and the Attorney General cite to the sentencing hearing minute order to establish payment of the fee/assessment were probation conditions. Neither party cites to the reporter's transcript from the sentencing hearing. We have reviewed the reporter's transcript from the sentencing hearing. Based on our review of the transcript, it does not appear the trial court imposed the section 1465.8, subdivision (a)(1), security fee or Government Code section 70373, subdivision (a)(1), assessment at all. The clerk cannot supplement the judgment by imposing the fee and assessment when the trial court failed to do so.
The section 1465.8 security fee and Government Code section 70373, subdivision (a)(1), assessment are mandatory for each conviction and may be imposed on appeal. (People v. Woods (2010) 191 Cal.App.4th 269, 272, 274.) We modify the judgment to impose two $30 court security fees and two $30 court facilities assessments. (People v. Walz (2008) 160 Cal.App.4th 1364, 1372.)
DISPOSITION
The probation condition prohibiting Lee from owning, using or possessing "any type of toys, video games, or similar items designed for the entertainment of children, without written permission of the probation officer[]" is stricken. The judgment is modified to impose two $30 court security fees pursuant to section 1465.8, subdivision (a)(1), and two $30 court facilities assessments pursuant to Government Code section 70373, subdivision (a)(1). The judgment is affirmed as modified.
O'LEARY, P. J.
WE CONCUR:
BEDSWORTH, J.
ARONSON, J.