Filed 7/19/18 P. v. Delap CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

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Following a jury trial, defendant Clinton Adam Delap was convicted of committing a lewd act on a child. (Pen. Code, § 288, subd. (a).)[1] The trial court sentenced him to the low term of three years in state prison.

On appeal, defendant contends the trial court abused its discretion and denied him due process in admitting evidence of his 2010 possession of child pornography as uncharged misconduct evidence. He also claims the court abused its discretion in denying probation. Finding no error, we shall affirm the judgment.

FACTS

People’s Case at Trial

In 2013, 11-year-old Jane Doe lived in Auburn with her mother, stepfather, and siblings. Defendant was a friend of her stepfather and lived with the family on the bottom floor of their three-level house until August 2013. Defendant helped with cleaning and yard work; he socialized with the family and ate meals with them. This case is based on an incident that occurred at the house in July 2013. Jane related the incident at trial and in a Multidisciplinary Interview Center (MDIC) interview that also took place when she was 11.

In late July 2013, early one morning around 1:00 a.m. Jane awoke to the feeling of defendant rubbing his penis on her left foot. She could not see defendant’s penis, but she did see “one hand holding it and he was just rubbing it.” Jane moved her foot, which alerted defendant that she was awake. Jane looked at defendant; he looked down at his hands, which still touched his penis by her foot, and moved what seemed like his “rubbery” penis back and forth across her foot. Without saying anything, he pulled her blankets over her and walked out.

The next day, defendant acted awkwardly toward her and tried to avoid her. Jane told her mother defendant was in her room that night but she did not say what he did, because it would be awkward with defendant in the house. Later in the day at her grandmother’s house, Jane told her friend what happened and then she told her grandmother.

On August 8, 2013, Jane’s mother, following the instructions from a law enforcement officer, folded Jane’s bedding and placed it in a clean plastic bag. She had not washed Jane’s bedding since Jane reported the incident, as Jane had been staying with her grandmother. The family had the sheets for about three months before the incident; the sheets were never on defendant’s bed, which was a different size than Jane’s.

A forensic examination found semen on the fitted sheet from Jane’s bed. DNA from the semen matched defendant’s DNA. The forensic expert testified that although sperm can transfer through a laundry washing cycle, it was unlikely that defendant’s semen transferred to the sheet in this way.

The prosecution also introduced evidence concerning defendant’s 2010 arrest for possession of pornography, which we describe in more detail post.

Defense Case

Defendant testified on his own behalf. He denied the sexual conduct at issue, claiming that the night of the incident he was awakened by a loud noise from outside. He went upstairs to investigate because the upper level allowed a better view of the backyard. He went to Jane’s bedroom to see if she was all right, and noticed the window by her bed was open. He leaned over her bed, closed the window, and placed the covers on her. He testified that he may have touched her foot as he did this, but he denied rubbing her foot with his hand or penis.

Defendant did many household chores, including washing the family’s clothes. At times, he washed his clothes with the family’s.

We address defendant’s testimony regarding the uncharged conduct post.

DISCUSSION

I

Uncharged Misconduct Evidence

A. Background

Over defendant’s objection, evidence of the events surrounding his 2010 arrest for possession of child pornography was admitted under Evidence Code sections 1108 and 1101.

The testimony showed that in May 2010, a micro SD card in defendant’s cell phone was found to contain 44 images of child pornography. Many images were of girls aged six to 10, involved in sexual acts or posing naked.

Defendant was arrested for possession of child pornography. In a 2010 interview, a detective told defendant one of the photographs was of an eight- or nine-year-old girl with “a guy that’s ejaculating in her mouth or near her mouth.” Defendant admitted having “kind of a curiosity thing” about such images. He admitted to the detective that he downloaded such images for over six months. He knew he should not be looking at such images. He never shared the photographs electronically or otherwise.

The testifying officer described three of the images to the jury; a seven-year-old girl, visible from the waist up and naked, with two adult males masturbating on each side of her. One of the males had ejaculated on the girl’s left cheek, while the other man’s erection touched the girl’s head. Another image was of an approximately seven-year-old girl wearing sheer lingerie that exposed her right nipple. An adult male stood in front of her with an erection that was several inches in front of her mouth, and he appeared to have ejaculated on her chin area. The third image depicted an approximately seven-year-old girl with two men, whose penises were within several inches of the girl’s mouth and had ejaculated therein.[2]

During his trial testimony, defendant admitted downloading the images. He knew it was wrong, but did so “to do something good about it, not possess it.” He testified that he was trying to locate the photographs’ origin. As a result of this conduct, defendant was convicted only of misdemeanor disobeying a restraining order, the details of which were not presented to the jury.

B. Analysis

Defendant contends admission of the uncharged conduct described ante constituted an abuse of discretion and due process violation. We disagree.

In general, evidence of a defendant’s conduct other than what is currently charged is not admissible to prove that the defendant has a criminal disposition or propensity. (Evid. Code, § 1101, subd. (a); People v. Kipp (1998) 18 Cal.4th 349, 369.) Evidence Code section 1108 contains an exception to that general rule, and allows the trier of fact to consider uncharged sexual offense evidence as evidence of the defendant’s propensity to commit sexual offenses and that the defendant committed the charged sexual offense. (People v. Villatoro (2012) 54 Cal.4th 1152, 1160, 1164 (Villatoro); People v. Falsetta (1999) 21 Cal.4th 903, 912, 915, 922 (Falsetta).) Under Evidence Code section 1108, subdivision (a), evidence of the defendant’s commission of another sexual offense or offenses is admissible in a case where the defendant is charged with a sexual offense, unless its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352.)

In enacting Evidence Code section 1108, the Legislature recognized “ ‘sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial[, thus,] often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations.’ [Citation.]” (Villatoro, supra, 54 Cal.4th at p. 1160.) Evidence Code section 1108 permits the trier of fact to consider evidence that the defendant has a propensity to commit sexual offenses in evaluating the defendant and the victim’s credibility. (Villatoro, at p. 1164; Falsetta, supra, 21 Cal.4th at p. 911.)

“[B]ecause Evidence Code section 1108 conditions the introduction of uncharged sexual misconduct or offense evidence on whether it is admissible under . . . section 352, any objection to such evidence, as well as any derivative due process assertion, necessarily depends on whether the trial court sufficiently and properly evaluated the proffered evidence under that section. ‘A careful weighing of prejudice against probative value under [Evidence Code section 352] is essential to protect a defendant’s due process right to a fundamentally fair trial. [Citations.]’ [Citation.] As our Supreme Court stated in Falsetta, in balancing such Evidence Code section 1108 evidence under Evidence Code 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 defendant’s other . . . offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]’ [Citation.] In evaluating such evidence, the court must determine ‘whether “[t]he testimony describing defendant’s uncharged acts . . . was no stronger and no more inflammatory than the testimony concerning the charged offenses.” ’ [Citation.]

“On appeal, we review the admission of other acts or crimes evidence under Evidence Code section 1108 for an abuse of the trial court’s discretion. [Citation.] The determination as to whether the probative value of such evidence is substantially outweighed by the possibility of undue consumption of time, unfair prejudice or misleading the jury is ‘entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence.’ [Citation.] The weighing process under section 352 ‘depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules.’ [Citation.] ‘ “The ‘prejudice’ referred to in . . . section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’ ” [Citation.]’ [Citation.] We will not find that a court abuses its discretion in admitting such other sexual acts evidence unless its ruling ‘ “falls outside the bounds of reason.” [Citation.]’ [Citation.] In other words, we will only disturb a trial court’s ruling under . . . section 352 where the court has exercised its discretion in a manner that resulted in a miscarriage of justice. [Citation.]” (People v. Dejourney (2011) 192 Cal.App.4th 1091, 1104-1105, fn. omitted.)

The uncharged offense about which testimony was elicited, possession of child pornography (§ 311.11), is one of the crimes enumerated in Evidence Code section 1108, and therefore potentially admissible as propensity evidence. (Evid. Code, § 1108, subd. (d)(1)(A).) The charged offense, section 288, contains a specific intent requirement; it punishes an act done “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child.” (§ 288, subd. (a).) Possession of child pornography tends to prove a sexual desire towards children, and the prior misconduct evidence here showed a sexual attraction towards young girls, thus making the evidence relevant as evidence of the required specific intent. (See People v. Page (2008) 44 Cal.4th 1, 40 (Page) [evidence of sexual images possessed by a defendant may be admissible to prove intent to commit a sex offense].)

Defendant argues the child pornography evidence, particularly the three specific images described by the detective, “were more disturbing than the charged incident” due to the children’s age, the involved body parts, and the presence of ejaculate in the images. He argues the widespread availability of pornography has made its possession less probative and more distracting and claims the evidence was inadmissible when viewed in context of the five-part test found in People v. Nguyen (2010) 184 Cal.App.4th 1096 (Nguyen).

First, we do not see that defendant’s uncharged misconduct involved substantially more egregious or offensive behavior than his charged offense. Defendant did not commit the photographed acts, he (admittedly intentionally) possessed the images on his phone. The images depicted adult men and young girls engaged in acts involving ejaculate, the same type of conduct in which defendant was accused of partaking with Jane. Defendant’s possession of the images, even though the actions depicted therein involved faces rather than feet and thus arguably depicted more objectionable conduct than defendant’s charged offense, was not substantially more egregious than his commission of a variation of the depicted acts on Jane.

The relative punishment of the two relevant crimes supports our conclusion. Possession of child pornography is a wobbler, punishable by 16 months to three years in state prison or county jail for up to one year. (§§ 311.11, subd. (a); 18, subd. (a).) In contrast, the charged offense is a straight felony, punishable by three, six, or eight years in state prison. (§ 288, subd. (a).) The trial court did not abuse its discretion in concluding that the uncharged conduct did not involve more egregious behavior than the charged crime.

Further, the Nguyen test supports our conclusion, as we next explain.

In considering whether to admit a prior sex offense, the trial court “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 defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]” (Falsetta, supra, 21 Cal.4th at p. 917.)

Applying this standard, the Nguyen court formulated a five-part test for admitting uncharged prior sex offenses as propensity evidence as follows: “(1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show the defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant’s charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time. [Citation.]” (Nguyen, supra, 184 Cal.App.4th at p. 1117.)

As we discussed ante, the possession of images was probative to defendant’s charged crime, given the similarity of the conduct depicted by the images to the conduct of which defendant stood accused, and the evidence of the images’ possession was not stronger and more inflammatory than evidence of defendant’s conduct toward Jane. The charged crime was punished more severely than the uncharged offense, and it was supported by a strong case: Jane’s relatively fresh complaint, her consistent versions of the incident in her testimony and MDIC interview, and the forensic evidence. The uncharged misconduct was not stale, taking place only about three years before the charged crime. Although defendant was not punished for possessing the images per se, he did sustain a misdemeanor conviction stemming from the investigation. Lastly, there is no indication that the admission of the uncharged misconduct unduly prolonged the trial.

Accordingly, we conclude it was not an abuse of discretion to admit the uncharged misconduct evidence. Because the evidence was properly admitted, defendant’s due process claim fails as well. (See People v. Harris (2005) 37 Cal.4th 310, 336 [“the application of ordinary rules of evidence does not implicate the federal Constitution”].)

II

Denial of Probation

Defendant contends the trial court abused its discretion in denying his request for probation.

A. Background

Pursuant to an Evidence Code section 1017 examination of defendant, the examiner found defendant suffered from PTSD and had no predisposition to the commission of sexual offenses. The examiner concluded defendant was amenable to and would make a good candidate for probation, and the probation officer recommended formal probation.

Defendant presented letters written on his behalf and evidence of his honorable discharge from the Army. The People opposed probation because defendant showed no remorse for his acts and noted the victim’s family requested a prison term. Defense counsel replied that defendant was apologetic to the family for any pain or harm caused, but he still asserted his innocence, making it hard to show remorse. Defendant continued to deny committing the offense, and reasserted the version of events to which he testified at trial. He maintained his (2010) collection of images was only for the purpose of investigation and finding a solution to child pornography. Counsel argued defendant had family support and was amendable to probation.

The trial court found the evidence was “overwhelming,” making defendant’s denial “really troubling” and casting doubts on his future performance on probation and participation in treatment. The court articulated that it understood defendant’s right to take a position at trial, but found that his testimony therein and continued denials as to both the charged crime and the uncharged conduct were not at all credible. Recognizing his military service and community support, the court sentenced him to the low term in state prison.

B. Analysis

“ ‘Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. [Citations.] The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. [Citations.]’ ” (People v. Olguin (2008) 45 Cal.4th 375, 379.) The defendant bears a heavy burden when attempting to show an abuse of discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.)

Defendant argues the trial court improperly treated his continued assertion of innocence as evidence of a lack of remorse. He contends that asserting innocence should not be treated as an “aggravating factor” at sentencing. He claims the court improperly punished him for the uncharged offense by considering that conduct (and his explanation thereof, which the trial court found not credible) when denying probation.

The presence or lack of remorse is a proper consideration in determining suitability for probation. (Cal. Rules of Court, rule 4.414(b)(7).) Lack of remorse may be considered as an aggravating factor “ ‘unless the defendant has denied guilt and the evidence of guilt is conflicting.’ [Citation.]” (People v. Leung (1992) 5 Cal.App.4th 482, 507.) A defendant convicted under section 288 may not receive a grant of probation unless certain conditions are met, including “that rehabilitation of the defendant is feasible and that the defendant is amenable to undergoing treatment, and the defendant is placed in a recognized treatment program designed to deal with child molestation immediately after the grant of probation or the suspension of execution or imposition of sentence.” (§ 1203.066, subd. (d)(1)(B).)

Here, the trial court found there was overwhelming evidence of defendant’s guilt, and we are compelled to agree. The victim reported the incident almost immediately after it occurred, and her testimony and MDIC interview provided consistent versions of defendant’s actions in July 2013. The forensic evidence against defendant was powerful, and the prior misconduct evidence showed a sexual attraction toward girls near Jane’s age, and an interest in adult men ejaculating on these young girls, as the jury found defendant did here. Defendant’s explanation of the 2013 incident was inadequate, and his explanation of his 2010 possession of images was downright fanciful. Thus, the evidence of guilt was not conflicting, and the trial court did not abuse its broad discretion in rejecting a probationary sentence when it considered defendant’s continued refusal to accept responsibility for his actions as a roadblock to his rehabilitation and therefore an impediment to his chances of success on probation.

DISPOSITION

The judgment is affirmed.

/s/

Duarte, J.

We concur:

/s/

Raye, P. J.

/s/

Mauro, J.