Opinion
H024621.
11-12-2003
THE PEOPLE, Plaintiff and Respondent, v. JAVAD ASGHARPOOR SARABI, Defendant and Appellant.
A jury convicted defendant Javad Asgharpoor Sarabi of one count of committing a lewd or lascivious act upon a child under the age of 14. (Pen. Code, § 288, subd. (a).) On appeal, defendant contends: (1) the trial court abused its discretion in admitting evidence of a pornographic magazine and other photographs, (2) the introduction of evidence of defendants prior sexual offenses deprived him of equal protection and due process of law, (3) the evidence of intent was insufficient to support the guilty verdict, (4) witness testimony exceeded the limitations of the fresh complaint rule (People v. Brown (1994) 8 Cal.4th 746 (Brown)), (5) use of CALJIC Nos. 2.50.01, 2.50.1, and 2.50.2 deprived him of a fair trial, (6) the trial court improperly instructed the jury on the element of motive, and (7) the trial court erred by instructing the jury in the language of CALJIC No. 17.41.1. We shall affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant was well known to local school children as the ice cream man. On or around Friday, May 25, 2001, defendant parked his truck near Cupertino Middle School about the time school let out. As was their habit, Stacey, Sean, and Amy went to the truck after school to buy candy and then repaired to a neighbors lawn to sit and talk. After a time Stacey, who was 13 years old, returned to defendants truck to buy something else. Defendant asked her to get in and get a soda for one of the other customers. It was not unusual for defendant to occasionally permit the children to come into the truck and get treats.
Some of the minors who testified were referred to by their first names. Those who were percipient witnesses were identified by their first and last names. For the sake of clarity we shall use first names for all the minors. We do not intend any disrespect in so doing.
Defendants truck was of the type commonly referred to as a step van.
Stacey remained in the back of the truck for about 15 minutes. She remarked to defendant that he kept the Milky Way candy bars in the refrigerator and defendant pinched her cheek and said, "Sweet and chocolaty, just like you." This made Stacey uncomfortable. Defendant then asked Stacey if he could meet her in her neighborhood around 4:00 p.m. the next day (Saturday). Stacey thought this was unusual since normally he was only in that neighborhood on school days.
Defendant then gave Stacey a hug, which, out of habit, she briefly returned. She quickly removed the one arm she had put around him because, she said, "He was just somebody that I bought candy from, not a really close friend or anything." As she was walking out of the truck defendant grabbed her from behind. She was wearing a skirt and defendant grabbed her bottom between her legs, squeezed about four times, and said, "Thats a good girl. Thats the way I like it." Stacey walked out of the truck and over to her friend, Amy. She immediately told Amy what had happened. Stacey reported the incident to her mother that Monday who in turn reported it to the police. The prosecutor charged defendant with one violation of Penal Code section 288, subdivision (a).
Prior to trial the prosecutor made several motions in limine. The first involved documents that police found in defendants truck. Police had recovered one magazine entitled Young Stars, which contained very sexually explicit photographs of nude young women. Police had also seized a packet of photographs of children taken in and around the ice cream truck. Defendant objected to the evidence on the ground it was irrelevant or that its relevance was substantially outweighed by the risk of undue prejudice.
The trial court found Young Stars to be circumstantial evidence of defendants lewd intent. The court found that the magazine emphasized young females. Even though the models might not have been under age, there were frequent descriptions of them as teenagers, a reference to Lolita, and cover copy that described the articles contained within: "Teens Get Off on Teasing Old Guys to Ecstasy" and "Bashful Brooke is Too Young for Prom Party in Las Vegas." The trial court admitted the magazine, finding it was probative of the lewd intent necessary to the crime charged and that its probative value outweighed the risk of undue prejudice, confusion, or consumption of time. The court found that the photographs, viewed together with the magazine and Staceys allegations, were relevant to intent and admissible.
The prosecution also sought to admit evidence that defendant had engaged in three prior sexual offenses. Sean, who was a friend of Staceys, reported seeing defendant pat or touch Staceys bottom just days before the incident Stacey reported. In 1996 defendant pled no contest to misdemeanor assault after he allegedly fondled 12-year-old Stephanies breast when she was in the truck retrieving some candy. In 1992, Nitasha, who was 14 years old at the time, reported that defendant told her she was "a lovely girl and hed love to kiss my luscious black lips." The trial court held that all three incidents were admissible pursuant to Evidence Code section 1108.
Hereafter, all undesignated statutory references are to the Evidence Code.
Defendant testified that he had probably brushed against Stacey while retrieving candy and treats for his customers. He admitted hugging her but said that Stacey, not he, had initiated the hug. Defendant also admitted holding her chin and calling her "sweet." He denied grabbing her bottom and insisted any touching that took place was either inadvertent or entirely innocent. Defendant explained the magazine as something he held for an adult customer. He denied fondling Stephanie in 1996 and suggested that she complained about him because he had refused to give her a ride in his truck. He denied making a remark in the way Nitasha had reported. He said he had been joking about Eskimo Pies.
During deliberations the jury asked for a read-back of testimony from Stacey, Amy, and defendant. They also requested clarification of the language on the verdict form. The jury found defendant guilty of the crime charged.
II. ISSUES
1. Did the trial court abuse its discretion in admitting evidence of the Young Stars magazine and photographs of defendants child customers?
2. Was defendant deprived of equal protection and due process of law by the introduction of evidence of his prior unlawful acts pursuant to sections 1101 and 1108?
3. Was the evidence of intent sufficient to support defendants conviction of violating Penal Code section 288, subdivision (a)?
4. Did the trial court exceed the limitations of the fresh complaint rule in permitting Amy to testify as to what Stacey told her on the day of the incident?
5. Was defendant deprived of a fair trial by the trial courts instructing the jury in the language of CALJIC Nos. 2.50.01, 2.50.1, and 2.50.2?
6. Did the trial court improperly instruct the jury on the element of "motive?"
7. Was defendant deprived of a fair trial by the courts instructing the jury in the language of CALJIC No. 17.41.1?
III. DISCUSSION
A. The Magazine and the Photographs
1. Admissibility under section 1101
Defendant first argues that the trial court abused its discretion in admitting the Young Stars magazine and the packet of photographs of defendants young customers. Defendant contends that the evidence is character evidence and is inadmissible under section 1101, subdivision (a). "We review the admission of evidence under Evidence Code section 1101 for an abuse of discretion." (People v. Memro (1995) 11 Cal.4th 786, 864 (Memro).)
"Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (§ 1101, subd. (a).)
Assuming that the magazine constitutes "bad acts" evidence to which section 1101 is generally understood to apply, subdivision (b) of that section makes the evidence admissible if it is relevant to prove some fact other than defendants propensity to commit the bad acts. There is no question that defendants intent was a material fact in this case. To establish the crime charged the prosecutor had to prove that defendant touched Stacey with the intent to arouse, appeal to or gratify lust, passion, or sexual desire of the defendant or the child. (Pen. Code, § 288, subd. (a); Memro, supra, 11 Cal.4th at p. 861.) The trial court admitted the evidence because it found it was relevant to prove intent.
"Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act." (§ 1101, subd. (b).)
People of Territory of Guam v. Shymanovitz (1998) 157 F.3d 1154, which defendant cites in support, is not helpful. In Shymanovitz, the Ninth Circuit held that evidence of defendants possession of adult pornography was inadmissible in a child molestation case. Under Guams version of Penal Code section 288 the prosecution had to prove that a reasonable person would consider the touching to have been for a sexual purpose. That is, the law applied an objective test to the intent element of the crime. The pornography that Shymanovitz possessed was irrelevant because it demonstrated only his subjective sexual interests. (People of Territory of Guam v. Shymanovitz, supra, 157 F.3d at p. 1158.) Thus, the evidence was useful only as propensity evidence and was inadmissible for all the reasons the law generally excludes such evidence. (Id. at p. 1159.) In this case the evidence is probative of more than just propensity. It was introduced to show defendants subjective intent, which is an element of the crime in California.
This case is much like Memro in which the defendant was charged with committing a lewd act on a young boy. The Supreme Court held that sexually explicit stories, photographs, and drawings of young boys found in the defendants home were admissible to show the defendants intent to molest the victim. (Memro, supra, 11 Cal.4th at p. 864.) The Court reasoned that, "the photographs, presented in the context of defendants possession of them, yielded evidence from which the jury could infer that he had a sexual attraction to young boys and intended to act on that attraction." (Id. at p. 865.) Defendant attempts to distinguish Memro by arguing that Young Stars was not illegal child pornography. The distinction is invalid. Memro is precisely on point. That is, the defendant possessed materials, legal or otherwise, from which it could be inferred that his intent in touching the child was to gratify his sexual desires.
Defendant concedes that if Young Stars had contained nude photographs of children it would have been probative of the issue of his guilt. But the precise age of the models is not important. Young Stars is devoted to photographs of very young-looking nude models in highly graphic sexual poses. The emphasis in the written material is upon "teens." It is plainly designed to appeal to a readers sexual interest in very young women. Defendants possession of the magazine in his ice cream truck tends to prove that defendant had a sexual preoccupation with very young women and supports the inference that his intent in touching Stacey involved his desire for sexual gratification.
The packet of photographs corroborates the inference supplied by the magazine. Of the eight photographs depicting children, one shows a group of children that includes some boys standing outside the ice cream truck. The other seven photographs are close-up shots of girls either inside the truck or at the door to it. Most of the girls in the pictures appear to be young adolescents. One girl appears in two photographs wearing a snug tee shirt through which the shape of her breasts is plainly visible. Another girl is wearing a top that reveals her navel. As in Memro, the jury could infer from the magazine and the photographs that defendant had a prurient interest in adolescent girls and that he intended to act on that interest. Therefore, the magazine and the photographs were admissible under section 1101, subdivision (b) to prove intent.
2. Admissibility under section 352
Defendant argues that the evidence was more prejudicial than probative and should have been excluded under section 352. Section 352 gives the trial court the discretion to exclude evidence that is otherwise admissible if the court determines that 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." (§ 352.) The trial courts ruling on a section 352 objection "`must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124 quoting People v. Jordan (1986) 42 Cal.3d 308, 316.)
Applying this standard, we find no abuse of discretion. All evidence that tends to prove guilt is prejudicial in the sense that it is damaging to the defendants case. "`The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging."" (People v. Karis (1988) 46 Cal.3d 612, 638 quoting People v. Yu (1983) 143 Cal.App.3d 358, 377.)
It is true that the magazine was "prejudicial" to the defendant in that it was damaging to his case. But we cannot say that it was substantially more prejudicial than probative. Its content may have been offensive to some jury members. But as defendant points out, it was not illegal child pornography, even if it did depict very young models. And its value in establishing defendants lewd intent was substantial. (See Memro, supra, 11 Cal.4th at p. 865.) On balance, the trial courts decision to permit the evidence was not arbitrary, capricious, or absurd. The court did not abuse its discretion.
3. Ineffective assistance of counsel
Defendant also contends that using the magazine as evidence against him deprived him of his constitutional rights to freedom of speech, privacy, and the due process of the law. He argues that his trial attorney provided ineffective assistance by failing to object on these grounds below.
To demonstrate constitutionally ineffective assistance of counsel, a defendant must show that counsels performance was unreasonable when measured by prevailing professional norms and that there is a reasonable probability that but for counsels acts or omissions, the result of the proceeding would have been more favorable to the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.)
Neither the state nor the federal constitution erects a per se barrier to the admission of evidence simply because the evidence itself may be constitutionally protected. For example, evidence of a defendants beliefs and associations, although protected by the First Amendment, is admissible if it is relevant to some issue being tried. (Dawson v. Delaware (1992) 503 U.S. 159, 165.) Evidence of a defendants use of racial epithets in describing the murder victim, while protected speech, is admissible because it is relevant to the issue of the defendants attitude toward the victim. (People v. Quartermain (1997) 16 Cal.4th 600, 629.) Likewise, since evidence of the sexually explicit magazine is relevant to the question of defendants intent, it is not inadmissible on constitutional grounds. Counsel presumably understood that an objection on constitutional grounds would have been futile. Accordingly, defendant cannot carry his burden to show ineffective assistance.
B. Evidence of Prior Unlawful Acts
1. Constitutionality of section 1108
Sean, Stephanie and Nitasha testified that defendant had engaged in conduct in the past that was very much like that with which he was charged in the present case. The trial court admitted the evidence pursuant to section 1108, which allows propensity evidence in cases charging certain sexual offenses. Defendant contends that section 1108 deprives him of due process and equal protection of the law. People v. Falsetta (1999) 21 Cal.4th 903, 910 has rejected the due process argument. We are bound by the Supreme Courts ruling on that point. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) People v. Fitch (1997) 55 Cal.App.4th 172, 184-185 (Fitch) held that section 1108 does not violate the equal protection clause. We agree with Fitchs analysis of this issue. Accordingly, we reject defendants constitutional challenge to the statute.
"In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101 [generally barring evidence of a partys prior conduct except for specific purposes listed in the statute], if the evidence is not inadmissible pursuant to Section 352." (& sect; 1108, subd. (a).)
2. Admissibility under section 352
Defendant argues that the incidents recounted by Sean, Stephanie, and Nitasha were only marginally probative and highly inflammatory and should have been excluded pursuant to section 352. We disagree.
In weighing the admissibility of a sex offense under section 352, "trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (People v. Falsetta, supra, 21 Cal.4th at p. 917.) "The trial court enjoys broad discretion under . . . 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 . . . 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 (2001) 89 Cal.App.4th 30, 42.)
The trial court ruled as follows: "So we have three-three other acts that are alleged here under [section] 1108. The court will find each of these acts to be admissible. And the court is well aware that there is an analysis that needs to be done with each of these acts under [section] 352. [¶] And the court does believe that the uncharged acts-and this is actually the argument of the prosecutor in this case-the uncharged acts are not any more inflammatory to the jury that the charged crime. . . . [¶] I do not think that there is a probability of confusion for the jury to hear evidence as to the other acts in this case. And given-and the acts in my mind are not so remote in time that they should not be held-held admissible. [& para;] . . . [¶] . . . Although obviously they will consume some trial time, they will not involve a tremendous amount of undue consumption of time. [¶] This factor also weighs in favor of the admission of the evidence of these acts. And I do believe the probative value of these acts is clear."
It is clear from the trial courts ruling that it considered the pertinent factors. Contrary to defendants assertion that the evidence was irrelevant to the charged conduct, in our view it was indeed probative of his guilt. Each of the incidents tended to prove defendants illicit interest in his young female customers. Even though his remark to Nitasha took place nine years in the past, it is probative for at least two reasons. First, his comment, that he would "love to kiss [her] luscious black lips," is very much like his remark to Stacey in 2001-"sweet and chocolaty, just like you." And second, viewed in connection with the incidents alleged in 1996 and 2001 it demonstrates that defendant had a pattern of sexually suggestive conduct. The prior acts were not more egregious than the charged crime so that evidence of them was not likely to inflame the jury. In fact, the acts were so similar to the conduct Stacey related that, if true, they were highly probative of defendants guilt in the present case. The trial court did not abuse its discretion in admitting the evidence.
C. Sufficiency of the Evidence
Defendant next contends that his conviction must be reversed because there is no evidence that he touched Stacey with the requisite specific intent.
Whether a touching is accompanied by the intent to arouse, appeal to or gratify lust, passion, or sexual desire of the defendant or the child must be decided on the facts of each case. (People v. Hobbs (1952) 109 Cal.App.2d 189, 192.) This intent may be shown by circumstantial evidence. (People v. Meacham (1984) 152 Cal.App.3d 142, 156, abrogated on another point by Brown, supra, 8 Cal.4th 746.) When a defendant challenges a conviction on substantial evidence grounds, the question is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. The appellate court decides only whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving guilt beyond a reasonable doubt. (People v. Arcega (1982) 32 Cal.3d 504, 518.) In applying this test, the appellate court must presume in support of the judgment the existence of every fact the trier could reasonably have deduced from the evidence. (People v. Fosselman (1983) 33 Cal.3d 572, 578.) We review the record in the light most favorable to the prosecution to determine whether it discloses substantial evidence, i.e., evidence that is reasonable, credible, and of solid value. (People v. Johnson (1980) 26 Cal.3d 557, 576.)
Stacey testified that defendant referred to the candy bars as "sweet and chocolaty, just like you." She was wearing a skirt and he reached up and grabbed her bottom "kind of right between my legs, almost" and squeezed her several times saying as he did so: "Thats a good girl" and "Thats the way I like it." The nature of the conduct and the accompanying remarks are evidence of defendants lewd intent. Even absent the remarks, grabbing her bottom between her legs is hardly consistent with an innocent purpose. In addition, the fact that defendant had the Young Stars magazine in the ice cream truck, that Stephanie had reported that he had fondled her breast, and that Nitasha had reported that he had made a salacious remark to her when she was 14 years old is circumstantial evidence of defendants intent to arouse, appeal or gratify his lust, passion, or sexual desire. This is sufficient evidence to support the jurys finding that defendant had the specific intent necessary for a conviction under Penal Code section 288, subdivision (a).
D. Fresh Complaint
Amy testified in the prosecutions case in chief. She saw Stacey go into defendants truck and estimated that she stayed in the truck for about 10 minutes. She went on to testify as follows:
"Q. [By the Prosecutor]: When she came out, did she tell you what had happened in the truck?
"A. Yes.
"Q. Did she tell you if the defendant touched her in any way?
"A. Yes.
"Q. What did she tell you about the defendant touching her?
"[Defense counsel]: Objection. May we approach?
"The Court: Yes.
"(Discussion off the record.)
"The Court: The witness has probably forgotten the question. Perhaps if you agree to withdraw it and ask a question.
"[The prosecutor]: Okay, your honor.
"Q. [By the Prosecutor]: [Amy], when Stacey came out, how did she say she was touched?
"A. She said that he grabbed her.
"Q. Did she say where he grabbed her?
"[Defense counsel]: Objection, Hearsay.
"The Court: Ill overrule it. Go ahead.
"Q. [By the Prosecutor]: Where did she say?
"A. She said her bottom.
"Q. Did she say if he touched her in any other way
"A. No.
"Q. —that you can remember?
"A. No, not that I can remember."
After refreshing Amys recollection with the police report the prosecutor asked:
"Q. What did she say?
"[Defense counsel]: Objection, hearsay.
"The Court: The court will find it is offered for a nonhearsay purpose, to wit, fresh complaint. Go ahead.
"The witness: He hugged her.
"[The Prosecutor]: Thank you.
"Q. [By the Prosecutor]: Now, when Stacey told you these things, did she seem upset or agitated in any way?
"A. She seemed terrified."
On cross-examination, Amy described Staceys demeanor upon exiting the ice cream truck as "upset" and "mad."
Defendant argues that Amys testimony exceeded the limitations of the fresh complaint doctrine as described by Brown, supra, 8 Cal.4th at page 761. Defendant also argues that his attorney provided ineffective assistance by failing to object to the testimony on that ground.
Brown sets forth the limits and rationale for the fresh complaint doctrine: "[E]vidence of the fact of, and the circumstances surrounding, an alleged victims disclosure of the offense may be admitted in a criminal trial for nonhearsay purposes under generally applicable evidentiary principles, provided the evidence meets the ordinary standard of relevance." (Brown, supra, 8 Cal.4th at p. 763.) Admitting evidence of the complaint eliminates the risk that the jury might erroneously infer that the victim never made a complaint. In some cases, that inaccurate inference could cause a jury to reach the unwarranted conclusion that the offense did not take place. (Id. at p. 761.) The existence of a fresh complaint is therefore relevant to the issue of whether the alleged offense actually occurred. Brown was careful to point out that the evidence should be limited in its detail to prevent a jury from being tempted to consider it for the hearsay purpose of proving the truth of that which was said. (Id. at p. 763.)
Defendant argues that counsel should have expressly objected that the prosecutors questions overstepped the limitations of Brown. "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsels challenged conduct on the facts of the particular case, viewed as of the time of counsels conduct. . . . [T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Strickland v. Washington, supra, 466 U.S. at p. 690.) Applying this standard we are bound to reject the argument.
Defendants counsel first objected to the question: "What did she tell you about . . . ?" Although counsel did not specify on the record the basis for his objection, since the question plainly calls for hearsay it is reasonable to presume that the objection was made on that basis. After a discussion off the record the prosecutor withdrew the question. Counsels subsequent objections were all designated as hearsay objections. The hearsay objection was, in effect, the same thing as objecting to the question as calling for detail in excess of that permitted by Brown. Staceys statement was admissible under Brown only for the non-hearsay purpose of proving that she made a complaint. Once that purpose is accomplished, unless some hearsay exception applied, additional detail is inadmissible hearsay. Moreover, counsel had specifically discussed the fresh complaint issue with the court during the in limine motions and the court overruled counsels objections at trial on that basis. Accordingly, we must presume that counsel was specifically referring to the limitations of Brown in his objections both off and on the record at trial.
Assuming that the testimony exceeded the limits in Brown, the trial court did not err in admitting it because, as the Attorney General argues, it was also admissible for hearsay purposes under section 1240. (See People v. Butler (1967) 249 Cal.App.2d 799, 804.) Section 1240 permits the introduction of evidence of a statement "if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception." The crucial element in determining whether such a statement is sufficiently reliable to be admissible under this exception to the hearsay rule is the mental state of the speaker. (People v. Raley (1992) 2 Cal.4th 870, 892.) The "`stress of excitement" must be such as to preclude deliberation or the opportunity to fabricate. (Ibid.)
Amy testified that Stacey spoke to her right after she exited the ice cream truck and that Stacey "seemed terrified" at the time. On cross-examination counsel elicited the additional evidence that Stacey had been "upset" and "mad." Staceys statement that defendant had grabbed her bottom was made spontaneously while Stacey was under the stress of excitement caused by the incident. It was therefore admissible for its truth and the trial court did not err in admitting it.
"`"No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." [Citation.] (DAmico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19.)" (People v. Zapien (1993) 4 Cal.4th 929, 976.)
E. CALJIC Nos. 2.50.01, 2.50.1, and 2.50.2
In pertinent part, the version of CALJIC No. 2.50.01 that the trial court read to the jury was as follows: "Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense on one or more occasions other than that charged in the case. [¶] . . . [¶] If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may but are not required to infer that he was likely to commit and did commit the crime of which he is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed prior sexual offenses, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged offense. The weight and significance of the evidence, if any, are for you to decide. [¶] Unless you are otherwise instructed, you must not consider this evidence for any other purpose."
Immediately following this instruction, the trial court instructed the jury in the language of CALJIC No. 2.50.1: "Within the meaning of the preceding instructions the prosecution has the burden of proving by a preponderance of the evidence that a defendant committed crimes or sexual offenses other than those for which he is on trial." The court then gave the jury the definition of "preponderance of the evidence." (CALJIC No. 2.50.2.)
Defendant complains that this sequence of instructions is a violation of due process because it permitted the jury to convict him by a mere preponderance of the evidence. Whether or not to give any particular instruction in a case is predominantly a question of law. We examine it under the de novo or independent standard of review. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
The Attorney General argues that defendant did not object to these instructions at trial and therefore waived the claim. (People v. Rodrigues, supra, 8 Cal.4th at p. 1140.) Defendants claim that the jury was permitted to find him guilty by a preponderance of the evidence rather than beyond a reasonable doubt implicates his substantial rights. Therefore, we consider the merits. (Pen. Code, §§ 1259, 1469; People v. Arredondo (1975) 52 Cal.App.3d 973, 978.) For the same reason we reject the Attorney Generals waiver argument as it pertains to defendants claims considered at section IV, F and G below.
Our Supreme Court recently held that the 1999 version of CALJIC No. 2.50.01 (the version that was read in this case) was a correct statement of the law. (People v. Reliford (2003) 29 Cal.4th 1007 (Reliford).) Reliford held that the instruction correctly provides that the jurors may infer from the evidence of other sex offenses that the defendant has a disposition to commit sex crimes (id. at pp. 1012-1013), that the jurors may-but are not required to-infer from his predisposition that the defendant was likely to commit and did commit the charged offense (id. at p. 1013), that the instruction correctly informs the jurors that if they find by a preponderance of the evidence that the defendant committed a prior sexual offense that finding is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime (ibid.), and that the instruction, taken with other instructions that Relifords jury received, correctly charged the jury (id. at pp. 1013-1014). The court held that although the 2002 revised version of the instruction adds the statement that the inference the jurors may draw from prior sexual offenses is simply one item to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime, the constitutionality of the instruction does not depend on this sentence. (Id. at p. 1015.)
Like the jury in Reliford, defendants jury received the following instructions: (1) that the crime consisted of specific elements, (2) that each element of the crime must be proved, (3) that a guilty verdict requires a union or joint operation of act or conduct and the requisite intent, and (4) that the prosecutor must prove guilt beyond a reasonable doubt. As in Reliford, there is no reasonable likelihood that the jury could have misunderstood the instructions as defendant contends. (Reliford, supra, 29 Cal.4th 1007.) Defendants due process and fair trial rights were not violated.
F. Motive
Defendant next contends that by giving the standard language of CALJIC No. 2.51 (motive is not an element of the crime and need not be shown) the trial court confused the jury because, he says, sexual motivation is a necessary element of the crime of which he was convicted. (Pen. Code, § 288, subd. (a).) According to defendant, the confusion prevented the jury from evaluating the elements necessary for the offense.
The Attorney General is technically correct that although Penal Code section 288 requires specific intent, motive is not an element of the crime. While it is true that in law there is a distinction between "intent" and "motive," in common usage the terms are often used interchangeably. Implicit in defendants argument is the suggestion that a jury might not know the difference. To be told that motive is not necessary but intent is required could be confusing. We are satisfied however that there could not have been any confusion in this case.
The Attorney Generals reliance upon People v. Giani (1956) 145 Cal.App.2d 539 is inapposite. That case involved a violation of Penal Code section 288a, oral copulation with a minor. Evidence of motive or intent was irrelevant because "`no particular purpose, motive or intent is a necessary element of the crime described" by that section. (People v. Giani, supra, 145 Cal.App.2d at p. 546.) The same is not true of Penal Code section 288, subdivision (a), which does contain a specific intent element.
The trial courts instructions included several explanations about the element of intent and only one brief reference to motive. The court informed the jury that specific intent could be shown by circumstantial evidence, that there must exist a union or joint operation of act or conduct and a certain specific intent, and that in order to be guilty of violating Penal Code section 288 defendant must have had the specific intent to arouse, appeal to, or gratify his lust, passions or sexual desires.
The prosecutor also focused on intent in her closing argument: "The last element, the touching, was done with the specific intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person or the child. [¶] Just about all of the rest of the evidence that you heard in this case is evidence that goes to prove this last element of the charged crime. And so the rest of my discussion is going to be explaining how this charge, this last element, has been proven to you." The prosecutor then proceeded to explain how she believed the evidence proved defendants intent.
Finally, the jury concentrated on the element of intent after deliberations began. The information had described the requisite intent as that of "arousing, appealing to and gratifying the lust, passions, and sexual desires of the defendant and of the child." (Italics added.) The jury instructions and the verdict form described the necessary intent as gratifying the sexual desires of the person or the child. The jury wanted to know whether "and" or "or" was correct.
In light of the courts instructions, the prosecutors emphasis on the element of intent, and the jurys obvious focus upon that component of the crime, the jury must have understood that defendant had to have had a sexual intention in order to be guilty. It is therefore not reasonably probable that the outcome would have been any different had the trial court eliminated the reading of CALJIC No. 2.51. (People v. Watson (1956) 46 Cal.2d 818, 836.)
G. CALJIC No. 17.41.1
The trial court instructed the jury in the language of CALJIC No. 17.41.1. Defendant claims that this instruction violated his rights to a fair and impartial jury trial. According to defendant, by requiring the jury to inform the court of any perceived acts of misconduct by a fellow juror the instruction invades the sanctity of jury deliberations and constitutes structural error that compromises the entire process. This and similar arguments were rejected in People v. Engelman (2002) 28 Cal.4th 436.
Specifically, the jury was informed: "The integrity of a trial requires that jurors at all times during the deliberations conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment, or any other improper basis, it is the obligation of the other jurors to immediately advise the court of that situation."
The California Supreme Court in People v. Engelman, supra, 28 Cal.4th 436 disapproved the use of CALJIC No. 17.41.1 but found that, under the facts of that case, the giving of this instruction "did not constitute constitutional error." (Id. at p. 444.) We reach the same result here. Defendant does not point to anything in the record, nor have we been able to uncover anything to support the allegation that there occurred any problem with the jury deliberations related to the CALJIC No. 17.41.1 instruction given. Indeed, the jurys questions during deliberations indicated that the jurors were actively deliberating the factual questions put to them. Since giving the instruction did not deprive defendant of his constitutional rights, there was no structural error.
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J. and Elia, J.