Opinion
A115802.
2-10-2009
THE PEOPLE, Plaintiff and Respondent, v. MARK STEPHEN WOOLUMS, Defendant and Appellant.
Not to be Published in Official Reports
I. INTRODUCTION
A jury found appellant Mark Stephen Woolums guilty of continuous sexual abuse of N.E., a child under 14 years of age. (Pen. Code, § 288.5, subd. (a).) The court declared a mistrial based on the jurys inability to reach verdicts on the remaining counts involving two other young girls, B.M. and K.A., both of whom claimed appellant sexually abused them. Two months later, appellant entered a negotiated plea of no contest to one count of lewd and lascivious conduct upon B.M., a child under 14 years of age, with the understanding that a concurrent term would be imposed. (Pen. Code, § 288, subd. (a).) In exchange, the prosecution dismissed all the remaining counts. The court then sentenced appellant to the aggravated term of 16 years in state prison.
On appeal, appellant makes several claims of evidentiary error. He first claims the trial court abused its discretion in excluding evidence of N.E.s prior sexual knowledge without first holding a hearing pursuant to Evidence Code section 782. He next argues that the court erred in admitting rebuttal evidence that was improperly used by the jury as "character evidence to imply propensity." Appellant also claims that his constitutional rights were violated as a result of these evidentiary rulings. Lastly, appellant claims the aggravated terms imposed by the trial court "based on facts not found by a jury beyond a reasonable doubt" violated "his constitutional rights to a jury trial and due process under the Sixth and Fourteenth Amendments." We affirm.
II. FACTS AND PROCEDURAL HISTORY
N.E. was 14 years old and in the 8th grade when she testified at appellants trial. At the time appellants sexual activity began with N.E., she was 10 years old and was attending the in-home child day care appellants wife operated from their home. Appellant was in his early 40s. Appellant would initially put N.E. on his lap and she would feel his "private part" getting "hard." He would either move her around or move himself.
N.E. stopped going to the daycare in appellants home at the end of sixth grade or beginning of seventh grade. However, she continued to see appellant because he worked out regularly with her stepfather in the gym they set up in her parents garage. The sexual conduct with appellant continued and occurred in the garage when N.E.s stepfather would leave to go running. Appellants conduct included "French kissing," having N.E. rub his penis, and vaginal touching.
During his testimony, appellant acknowledged that there were 55 calls between him and N.E. in July and August of 2004. However, he claimed they were discussing her family problems.
On September 9, 2004, N.E. told her mother that appellant "did some bad stuff with me." That evening, N.E.s mother took her to the police station, and appellant was arrested and charged with molesting N.E.
Based on this evidence, appellant was charged, tried and convicted for the continuous sexual abuse of N.E., a child under 14 years of age. (Pen. Code, § 288.5, subd. (a).) He was also charged and tried—but ultimately not convicted—for sexually inappropriate conduct with two other young girls, B.M. and K.A.
Briefly, B.M. testified that appellant and his wife were best friends with her parents and B.M. attended the day care at appellants home. B.M. testified that from fall of 2004 until spring of 2005, appellant engaged in a number of sexual acts with her. She recalled an incident when she was 13 and home sick with strep throat. Appellant stopped by her house to check on her at her fathers request. During this encounter, appellant orally copulated her, digitally penetrated her, and ended up having sexual intercourse with her. She testified that appellant then gave her $20 a week "[s]o I would be quiet."
K.A., the third alleged victim, was B.M.s good friend. She testified that in the fall of 2004, when she was at appellants home with B.M., appellant grabbed her breast.
Appellant testified in his own defense and adamantly denied any sexual misconduct with N.E., B.M., or K.A. The defense also put on extensive evidence to show that appellant was very busy working at his Big-O Tires store, that he only had incidental and occasional contact with the children who attended his wifes in-home child day care, and that the house was too chaotic for appellant to engage in inappropriate conduct with the children.
In argument, defense counsel pointed out that all three alleged victims were friends with each other and they all went to the same school. He claimed they were all "jumping on the bandwagon" to falsely accuse appellant. In support of this argument, he pointed out various discrepancies between the statements each of them made shortly after they reported appellant and their testimony at trial.
As mentioned, while the jury found appellant guilty of continuous sexual abuse of N.E., the trial court declared a mistrial as to the remaining nine counts involving B.M. and K.A. following a hung jury. Later, appellant entered a negotiated plea of no contest to one count of lewd and lascivious conduct upon B.M. He was sentenced to an aggravated term of 16 years in state prison for his conduct with N.E. and a concurrent aggravated term of eight years for his conduct with B.M. This appeal followed.
III. DISCUSSION
A. N.E.s Prior Sexual Knowledge—Evidence Code section 782
Appellant contends the trial court abused its discretion when it refused to hold a hearing pursuant to Evidence Code section 782 on the admissibility of evidence that N.E.s stepbrother had exposed his genitals to her in 2004. The incident took place several months before N.E. first told her mother that she was being molested by appellant. Appellant argues that the proffered evidence was critical to his defense because it showed N.E. learned about "the mechanics of arousal or erection" from a source other than by being molested by appellant.
All further undesignated statutory references are to the Evidence Code.
A defendant generally cannot question a sexual assault complaining witness about his or her prior sexual activity. (People v. Woodward (2004) 116 Cal.App.4th 821, 831 (Woodward).) However, an exception is provided by section 782, which sets out strict procedural limitations when the credibility of the complaining witness is attacked with evidence of the witnesss prior sexual conduct. (See generally People v. Bautista (2008) 163 Cal.App.4th 762, 781-782 (Bautista ); People v. Chandler (1997) 56 Cal.App.4th 703, 707-708 (Chandler); People v. Daggett (1990) 225 Cal.App.3d 751, 757 (Daggett).)
Section 782 requires a defendant seeking to introduce evidence of the witnesss prior sexual conduct to file a written motion accompanied by an affidavit containing an offer of proof concerning the relevance of the evidence to the complaining witnesss credibility. (§ 782, subd. (a)(1) & (2).) "[T]he trial court need not even hold a hearing unless it first determines that the defendants sworn offer of proof is sufficient." (People v. Rioz (1984) 161 Cal.App.3d 905, 916 (Rioz); § 782, subd. (a)(2).)
If the offer of proof is sufficient, however, the court must conduct a hearing outside the presence of the jury and allow defense counsel to question the complaining witness regarding the offer of proof. (§ 782, subd. (a)(3).) "The defense may offer evidence of the [victims] sexual conduct to attack [the victims] credibility if the trial judge concludes following the hearing that the prejudicial and other effects enumerated in Evidence Code section 352 are substantially outweighed by the probative value of the impeaching evidence." (Chandler, supra, 56 Cal.App.4th at p. 708; § 782, subd. (a)(4).)
Section 782 has been found to be applicable where the defense seeks to introduce evidence of prior sexual conduct by a child to show that the child had sexual knowledge independent of that allegedly obtained from the perpetrator of a child molestation. (Daggett, supra, 225 Cal.App.3d at p. 757.) As applied in child molestation cases, section 782 is designed to protect persons complaining of molestation from "embarrassing personal disclosures" unless the defense is able to show in advance that the witnesss sexual conduct is relevant to his or her credibility. (People v. Harlan (1990) 222 Cal.App.3d 439, 447; Bautista, supra, 163 Cal.App.4th at p. 782.)
Section 782 vests the trial court with "broad discretion" to weigh a defendants proffered evidence, prior to its submission to the jury, "and to resolve the conflicting interests of the complaining witness and the defendant." (Rioz, supra, 161 Cal.App.3d at p. 916; Chandler, supra, 56 Cal.App.4th at p. 711.) A trial courts exercise of discretion in admitting or excluding evidence "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. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
At a hearing held in May 2006, defense counsel made an oral offer of proof pursuant to section 782, that "about two years ago" N.E.s stepbrother had exposed his genitals to N.E. Counsel informed the court that N.E.s older brother, 15-year-old Kurt E., was subpoenaed and available to testify about the incident. Counsel indicated that Kurt E. "observed N.E. go into the family bathroom with her stepbrother," who was approximately 17 years old. When she emerged, N.E. told Kurt E. that their stepbrother had exposed his genitals to her.
In briefing this matter, appellant characterizes Kurt E. as an "uncooperative" witness.
The trial court found the defense showing insufficient to trigger a hearing pursuant to section 782. The court noted that N.E. had testified about "conduct where she was required to sit on the defendants lap on an erect penis, she was required to manipulate his penis, he put his finger near her vaginal area, there was French kissing and so on and so forth, and so if the idea is to attack her credibility by proving that she saw one of her relatives penises, I dont believe that the showing has been sufficient to trigger having that witness testify and questioned about that incident." The court believed even if the stepbrothers behavior was similar "in a tiny respect," the court believed it was "simply insufficient to justify triggering a hearing" under section 782. The court also found the evidence irrelevant, and pursuant to section 352 would result in an undue consumption of time "given the vast amount of behavior that the complaining witness has attributed to the defendant and the de minimus nature of the proffered evidence."
Appellant argues that the court abused its discretion when it failed to hold a hearing pursuant to section 782 on the admissibility of evidence that N.E.s older step-brother had exposed his genitals to her. Appellant claims this evidence was "critical" to the jurys assessment of N.E.s credibility because "[t]he stepbrothers conduct could have educated N.E. about penises and erection, which on reflection, caused her to characterize conduct alleged to have been engaged in by appellant as molest."
In making this argument, appellant principally relies on Daggett, supra, 225 Cal.App.3d 751. In Daggett, the court reversed a child molestation conviction where the trial court refused to hold a hearing on the admissibility of evidence that the child victim had been molested by older children five years earlier, as that evidence was relevant to show that he might not have learned the sex acts which he described from the defendant. The court explained, "A childs testimony in a molestation case involving oral copulation and sodomy can be given an aura of veracity by his accurate description of the acts. This is because knowledge of such acts may be unexpected in a child who had not been subjected to them. In such a case it is relevant for the defendant to show that the complaining witness had been subjected to similar acts by others in order to cast doubt upon the conclusion that the child must have learned of these acts through the defendant. Thus, if the acts involved in the prior molestation are similar to the acts of which the defendant stands accused, evidence of the prior molestation is relevant to the credibility of the complaining witness and should be admitted." (Id. at p. 757.)
The Daggett court concluded that the trial court should "have ordered a hearing to determine whether the acts of prior molestation were sufficiently similar to the acts alleged here. The court erred when it failed to do so." (Daggett, supra, 225 Cal.App.3d at p. 757.)
We conclude Daggett is factually distinguishable and no abuse of discretion is demonstrated in this case. Significantly, Daggett emphasized that when evidence is offered to show a childs knowledge of sexual acts, its relevance depends on whether the prior sexual acts closely resemble the acts in question. Appellants trial attorney did not proffer any evidence that the prior incident regarding N.E.s stepbrother, where he exposed his genitals to her in the bathroom, involved an erect penis or any other acts resembling those in the present case.
Appellant argues that if his trial counsel had been given the opportunity to examine N.E. in camera, he might have elicited more details which he needed to support his defense. The contention is unavailing. First, under section 782 the defense must make a sworn offer of proof to show that evidence of the sexual conduct of the complaining witness is relevant to the issue of credibility. (§ 782, subd. (a)(2).) Only if the court finds the offer of proof sufficient must the court order a hearing and allow the complaining witness to be questioned. (§ 782, subd. (a)(3).) In the present case, appellant never submitted a sworn offer of proof about the stepbrothers conduct and all discussion of the issue was limited to cursory argument at trial. By failing to present detailed information via the mandated sworn offer of proof, appellant himself hindered the trial court from ruling on the issue in a fully informed manner.
A single encounter with no sexual contact is easily distinguished from the conduct appellant was found to have engaged in here, consisting of making N.E. touch his penis, rubbing against her while she sat on top of his erect penis, kissing her with his tongue in her mouth, and touching her vaginal area. Thus, this prior incident would not have explained N.E.s knowledge of the latter practices. The situation in this case resembles the situation in Woodward, supra, 116 Cal.App.4th 821, which held that the trial court did not abuse its discretion in excluding evidence of the victims prior molestations because the victims prior sexual contacts were so dissimilar to the charged crimes. (Id. at p. 832.)
Additionally, "[b]ecause the relevance of the prior incidents was so minimal and the risk of confusing the jury so palpable," the trial court did not abuse its discretion in excluding the evidence under section 352. (Woodward, supra, 116 Cal.App.4th at p. 832.) Allowing the defense to explore this remote sexual experience that occurred under circumstances not comparable to those presented here would have set the stage for a trial within a trial. "Such a proceeding would consume considerable time, and divert the attention of the jury from the case at hand." (People v. Bittaker (1989) 48 Cal.3d 1046, 1097.)
Section 352 states: "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."
Appellant claims the issue is one of constitutional magnitude because he was effectively deprived of a defense on a central issue in the case. Mirroring the analysis in Bautista, supra, 163 Cal.App.4th 762, we disagree. "Although the complete exclusion of evidence intended to establish an accuseds defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right. [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 999.) "A trial courts limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witnesss credibility had the excluded cross-examination been permitted. [Citations.]" (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.) Although N.E.s credibility was a central issue in this case, we find that examination of N.E. on this particular topic would not have had a significant impact on the jurys impression of N.E.s credibility. In sum, excluding evidence of an incident where N.E.s older stepbrother exposed his genitals to her "no more deprives a defendant of a fair trial than do the rules of evidence barring hearsay, opinion evidence, and privileged communications." (People v. Blackburn (1976) 56 Cal.App.3d 685, 690.)
B. Admission of Rebuttal Evidence
Appellant contends the trial court abused its discretion by allowing the prosecution to present the rebuttal testimony of Julie Underwood, appellants former neighbor. Underwood described an incident around midnight in 2004 where she saw appellant dancing with five or six young girls in his garage without any other adult present. Appellant claims "[t]his was improper character evidence to show grooming for molesting behavior, which [was] aimed at persuading the jury that appellant had the propensity to molest."
Penal Code section 1093, subdivision (d), specifies that after each party presents its evidence, "[t]he parties may then respectively offer rebutting testimony only, unless the court, for good reason, in furtherance of justice, permits them to offer evidence upon their original case." It has been explained that "proper rebuttal evidence does not include a material part of the case in the prosecutions possession that tends to establish the defendants commission of the crime. It is restricted to evidence made necessary by the defendants case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt. [Citations.]" (People v. Carter (1957) 48 Cal.2d 737, 753-754.) "The decision to admit rebuttal evidence rests largely within the discretion of the trial court and will not be disturbed on appeal in the absence of demonstrated abuse of discretion. [Citations.]" (People v. Harris (2005) 37 Cal.4th 310, 335; People v. Young (2005) 34 Cal.4th 1149, 1199.)
Here, the defense attempted to raise a reasonable doubt as to appellants guilt by presenting extensive evidence regarding lack of opportunity to commit the charged crimes. Appellant testified that his children, their friends, and his mother-in-law were around the house every day and that he was never alone with a single child. During cross-examination, when questioned generally about his interaction with young girls who came to his home, appellant testified that he may have danced in his garage with his daughter and her friends. However, he claimed that other adults were always present.
Over appellants objection, the court allowed Julie Underwood to testify in rebuttal. Underwood lived across the street from appellant in the spring of 2004. She testified that she could see into appellants garage from her house. One night, as she was preparing to go to bed around midnight, Underwood heard "really loud music." She looked out the window and saw appellant dancing in his garage with "a bunch of little girls." There were five or six young girls who looked to be between 9 and 12 years old. The girls were dancing "very, very close" to appellant. Underwood could not see any other adults in the garage besides appellant.
In admitting this evidence on rebuttal, the trial court indicated Underwoods testimony "provide[d] a complete picture to the jury of what was happening in the home, even during the evening times . . . . The court found the rebuttal testimony was relevant because "there was a suggestion that [appellant] kept some distance between himself and the children. [¶] And the Court concludes that this testimony regarding that activity with no other adults present is inconsistent with his testimony and with the testimony of a number of other adult witnesses that describe his interaction with the children."
We find the trial court did not abuse its discretion in admitting Underwoods testimony. As the trial courts ruling made clear, the challenged evidence was not introduced to demonstrate appellants aberrant sexual interest in young girls. It was admitted to meet and rebut the extremely well-developed defense theory that appellant kept a professional distance between himself and the children who visited his home. We find no abuse of discretion.
Additionally, we reject appellants claim that the court abused its discretion in admitting this evidence under section 352 because its "slight probative value" was severely outweighed by "the inherently prejudicial effect of imply[ing] appellant has a disposition to commit sexual offenses involving young girls." There was no unfair prejudice because the objected-to evidence was not of such a heinous nature "to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors emotional reaction." (People v. Branch (2001) 91 Cal.App.4th 274, 286.) Although the incident witnessed by Underwood certainly cast appellant in a negative light, it was not likely to create such prejudice in the minds of the jury that the jury would potentially use this evidence to reach a decision upon an improper basis. The jurys verdict, which deadlocked on most of the charges against appellant, clearly shows this.
Given this conclusion, we also reject appellants claim that "admission of Underwoods testimony that appellant danced with young girls at midnight" resulted in a "violation of due process." In People v. Falsetta (1999) 21 Cal.4th 903, the California Supreme Court explained "[t]he admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendants trial fundamentally unfair. [Citations.]" (Id. at p. 913.) Because admission of Underwoods rebuttal testimony did not render appellants trial fundamentally unfair, he is not entitled to any relief based on his due process argument.
C. Sentencing
Appellant contends that the aggravated terms imposed by the trial court at sentencing "based on facts not found by the jury beyond a reasonable doubt" violated "his constitutional rights to a jury trial and due process under the Sixth and Fourteenth Amendments." In support of this argument he cites Cunningham v. California (2007) 549 U.S. 270 (Cunningham); Blakely v. Washington (2004) 542 U.S. 296 (Blakely); and Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi ).)
Apprendi held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.) Blakely held "that the `statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.]" (Blakely, supra, 542 U.S. at p. 303, original italics.) Accordingly, in Cunningham, supra, 549 U.S. at p. 274, the United States Supreme Court held that by "assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated `upper term sentence," Californias determinate sentencing law "violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments." (Ibid.)
As appellant points out, the trial court imposed the upper terms based upon aggravating factors that were unrelated to any prior convictions, that were not submitted to a jury, and that were not formally admitted by defendant. Consequently, appellant claims that in this case "no aggravating circumstance was established by means that . . . satisfies the Sixth and Fourteenth Amendment requirements established by Apprendi and its progeny . . . ."
Appellant did not have any prior convictions.
In People v. Sandoval (2007) 41 Cal.4th 825, 838 (Sandoval ), our Supreme Court held that error in failing to submit a punishment-increasing factual issue to the jury is subject to harmless error analysis under the beyond-a-reasonable doubt test of Chapman v. California (1967) 386 U.S. 18, 24. (Sandoval, supra, 41 Cal.4th at p. 838.) Applying the reasoning of Sandoval, as appellant acknowledges we must (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we now conclude beyond a reasonable doubt that the trial courts imposition of the upper terms based on aggravating circumstances not submitted to the jury was harmless. (Sandoval, supra, 41 Cal.4th at p. 839.) This is because the facts and circumstances of appellants sexual abuse of N.E. and B.M. are such that a "jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury . . . ." (Ibid.)
Looking at the evidence in this case, we are confident beyond a reasonable doubt that a jury presented with the circumstances of appellants molestation of N.E. and B.M. would have reached a verdict that the victims were particularly vulnerable (Cal. Rules of Court, rule 4.421(a)(3)) and that appellant took advantage of a position of trust to commit the sexual abuse (Cal. Rules of Court, rule 4.421(a)(11)). A child molest victims particular vulnerability is adjudged "in light of the `total milieu in which the commission of the crime occurred . . . . [Citation.]" (People v. Dancer (1996) 45 Cal.App.4th 1677, 1694, overruled on another ground in People v. Hammon (1997) 15 Cal.4th 1117, 1123) and may be found aggravating if there are other factors, such as supervision or control by the defendant, time and location of the offense or the extremely young age of the victim. (People v. Ginese (1981) 121 Cal.App.3d 468, 477.) During the time they were molested, the victims were attendees at a small in-home day care business run by appellants wife, a circumstance which gave appellant almost unfettered access to them when there was no parent present to assist or protect them.
As to the aggravating circumstance that "defendant took advantage of a position of trust" to commit the continuous sexual abuse (Cal. Rules of Court, rule 4.421(a)(11)), it is beyond dispute that defendant had such a relationship with the victims that placed him in a position of trust which allowed him to commit the sexual abuse. Both N.E. and B.M. were young girls with troubled home lives who forged a close relationship with appellant. Appellant became friends with their parents and they were friends with his daughter. With respect to B.M., appellant was permitted to check in on the victim in her own home when she was sick; and he used this opportunity to have sexual intercourse with her.
During closing argument, defense counsel described appellant as "like a second father" to B.M.
Given these circumstances, we have no doubt that the jury, if it had been asked to determine whether the facts supported the aggravating factors of the victims vulnerability and appellants taking advantage of a position of trust or confidence to commit the offenses, would have found the factors true beyond a reasonable doubt. Accordingly, the use of either of these aggravating factors without a jury finding was harmless. (Sandoval, supra, 41 Cal.4th at pp. 838-839.)
Appellant articulates numerous constitutional challenges to the harmless error analysis in Sandoval, supra, 41 Cal.4th 825 in order "to preserve them for federal review." We need not address these arguments here, because, as appellant recognizes, we cannot depart from our Supreme Courts rulings unless the United States Supreme Court instructs us to do otherwise. (See Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at pp. 455-456.)
IV. DISPOSITION
The judgment is affirmed.
We concur:
Sepulveda, J.
Rivera, J.