P. v. Delgado

Filed 4/12/07 P. v. Delgado CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Mark Ashton Cope, Judge. Affirmed in part and reversed in part with directions.

Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Arlene A. Sevidal, Deputy Attorney General, for Plaintiff and Respondent.

A jury found defendant and appellant, Louis Medel Delgado (hereafter defendant), guilty of committing a lewd and lascivious act on A.D., in violation of Penal Code section 288, subdivision (a) (count 1),^[1]three counts of committing a lewd and lascivious act on Y.B. by force or fear, in violation of section 288, subdivision (b)(1) (counts 3, 4, and 7), one count of committing a lewd and lascivious act on Y.B., a child under the age of 16, in violation of section 288, subdivision (c)(1) (count 5), and four counts of committing a lewd and lascivious act on J.B. in violation of section 288, subdivision (a) (counts 6, 8, 9, and 10).^[2] The jury also made true findings on allegations that the charges in which A.D. and Y.B. were the alleged victims (counts 1 through 5, and count 7) were filed within the time specified in former section 803, subdivision (g) (hereafter section 803(g)),^[3]i.e., after the statute of limitations had run on the crimes but within one year after each victim reported the crimes to law enforcement. In addition, the jury found true an allegation under section 667.61, subdivision (e)(5), that defendant committed the alleged crimes against more than one victim.

Based on the jurys verdicts and true findings, the trial court sentenced defendant to serve a determinate term of 20 years in state prison followed by five consecutive indeterminate terms of 15 years to life.

Defendant raises various claims of error in this appeal, directed at challenging the jurys guilty verdicts and the trial courts sentence. We recount the details of defendants claims below in our discussion. We conclude, for reasons we now explain, that the trial court committed several errors in sentencing defendant. Therefore, we will vacate defendants sentence and remand this matter to the trial court for resentencing.

FACTS

The details of the various crimes are set out in the parties respective briefs. For our purpose it is sufficient to note that defendant is the father of A.D. Y.T. is A.D.s mother and the godmother of Y.B. T. and defendant never married and ended their relationship when A.D. was five or six years old, although they had joint custody of A.D. and his two brothers. In 2002, Y.B. and A.D. each disclosed to T. that defendant had molested them when they were younger. A.D. was between the ages of three and six when defendant committed the acts of molestation, which included putting his erect penis in A.D.s mouth, once while the two were showering together, and several more times when the two had stayed up late together. Y.B. was between the ages of seven and 13 when defendant molested her, first by putting his hand down the back of her shorts and rubbing her buttocks, and other times by putting his hand under her clothing and rubbing her vagina. At the time of the conversation in which they disclosed these acts to T., A.D. was about 15 years old and Y.B. was about 21 years old.

J.B. was about four years old when defendant started to date her mother and then later moved in to live with the family. J., who referred to defendant as her stepfather, testified to four incidents in which defendant touched her vagina under her clothing, two of which occurred when she was little and under the covers, in bed with defendant. The other incidents occurred when J.s mother was at home but not in the room. In 2000 J. disclosed, in response to questioning by her mother, that defendant had touched her private area. J.s mother and father reported the disclosure to law enforcement.

In addition to the testimony of A.D., Y.B., and J.B., the prosecutor presented the testimony of S.O. and Y.C., both of whom are the sisters of Y.T. and aunts of A.D. O. testified that when she was 12 or 13 years old she went to visit her sister and was asleep on the living room couch when she awoke to find defendant rubbing her leg. Defendant did not stop when O. woke up and instead moved his hand higher on her leg, near her vagina. O. jumped up and went to another room. A week or two later, O. told her sisters, including T., what defendant had done.

C. testified that when she was about 10 or 11 years old, she was sleeping on the couch and was awakened by defendant, who was moving his hand up her leg. C. got up and told defendant that if he ever touched her again, she would tell her sister.

Defendants younger brother, A., also testified at trial and stated that when he was between five and seven years old and defendant was 13 to 15 years old, defendant had A. touch defendants penis on two separate occasions, once while the two were in the bathroom together and a second time while the two were in the backyard of the family home.

Additional facts will be discussed below as pertinent to the issues defendant raises in this appeal.

DISCUSSION

Defendant first contends that the trial court abused its discretion by excluding evidence that Y.B. had been convicted of violating section 261.5 by having sex with A.D., a minor. Defendant sought to introduce that evidence in order to impeach Y.B.s credibility, credibility being the only issue at trial.

1.

EXCLUSION OF IMPEACHMENT EVIDENCE

The parties do not dispute that Y.B. had sex with A.D., nor do they dispute that the conduct involves moral turpitude, and therefore evidence of that conduct is admissible to impeach Y.B.s credibility as a witness. (See People v. Wheeler (1992) 4 Cal.4th 284, 295.) The only issue is whether the trial court abused its discretion by relying on Evidence Code section 352 to exclude that evidence.

The pertinent facts, as recounted by the prosecutor, are that three or four months after the charges in this case were filed, Y.B., who was then 21 years old, was living with A.D. and his mother, Y.T.. Y.B. and A.D., who was 14 or 15 years old at the time, were caught, so to speak, by one of [A.D.s] brothers who walked in on them. There was alcohol involved. The two had been drinking, and they were in the middle of intercourse. A.D.s mother, who as previously noted is Y.s godmother, reported the incident to child protective services. Felony charges were filed and it was pled down to a misdemeanor.

The trial court initially expressed concern that the evidence in question would confuse the jury. Ultimately, the trial court excluded the evidence and, in doing so, stated, We spent we spent probably two days on tangential issues that are so unrelated to whether this actually happened or not, and that just takes us further into territory that I believe is inappropriate, and Im not going to allow it. When defendant later moved for a mistrial, citing the trial courts exclusion of the impeachment evidence as the basis for the motion, the trial court denied that motion, ruling among other things that the court was concerned about the harm the evidence would cause to Y.B. In the trial courts view evidence that Y. had sex with A.D. while he was a minor was akin to evidence regarding Y.s sexual history, and evidence of a victims sexual history is inadmissible. According to the trial court, the probative value of the evidence was minimal at best and it simply muddies the waters. In the trial courts view the danger of undue prejudice, the undue consumption of time, and the effect on a young woman who already in [the trial courts] opinion was clearly embarrassed and to some degree traumatized by coming here to testify, rendered admission of the evidence inappropriate.

Defendant contends that the trial court considered improper matters, and therefore abused its discretion, when it excluded evidence that Y.B. committed an act of moral turpitude by having sex with A.D. while he was a minor. While we agree with defendant that potential embarrassment to the witness, in and of itself, is not a proper consideration, we do not share his view that the trial court abused its discretion by excluding the proffered evidence.

Evidence Code section 352 authorizes a court, in its discretion, to exclude relevant and thus otherwise admissible 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.) [U]nder Evidence Code section 352, the trial court is required to weigh the evidences probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers substantially outweigh probative value, the objection must be overruled. [Citation.] On appeal, the ruling is reviewed for abuse of discretion. [Citation.] (Peoplev. Cudjo (1993) 6 Cal.4th 585, 609.) Discretion is delimited by the applicable legal standards, a departure from which constitutes an abuse of discretion. [Citation.] The discretion intended . . . is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citations.] (People v. Harris (1998) 60 Cal.App.4th 727, 736-737.)

Because evidence that Y.B. committed an act of moral turpitude by having sex with A.D., a minor, was relevant to impeach Y.s credibility as a witness, in order to exclude that evidence based on undue prejudice the trial court had to find that the probative value of the evidence was substantially outweighed by its potential for prejudice. The prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the [witness] as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, prejudicial is not synonymous with damaging. [Citation.] (People v. Karis (1988) 46 Cal.3d 612, 638.)

The question in this case is a close one and for that reason, we simply cannot say that the trial court abused its discretion by excluding the evidence in question. According to the record, the conduct at issue apparently was an isolated incident that occurred several months after Y.B. and A.D. reported to law enforcement that they each had been molested by defendant. Although we do not share the trial courts view that presentation of the evidence in question would necessarily involve an undue consumption of time, we do agree that the evidence created a substantial danger of confusing the issues and its probative value was substantially outweighed by its potential for prejudice.

In arguing otherwise, defendant contends that the evidence would have shown that two of the three complaining victims had a close personal relationship and that relationship would support an inference that they had a motive to fabricate the charges against defendant. There was other, and in our view more significant, evidence to support the inference defendant urges, namely, evidence that Y.B. and A.D. had grown up together, they were closely bonded, and each considered the other to be a sibling. Evidence that they had a sexual encounter while apparently under the influence of alcohol does not strengthen the inference that the two were closely bonded and therefore might have fabricated their claims against defendant. In short, we cannot say that the trial court abused its discretion by finding that the probative value of the evidence in question was substantially outweighed by its potential for prejudice.

Moreover, because there was other evidence to support the inference defendant urges, we would also conclude that if the trial court abused its discretion, the error was harmless. Defendant contends that the trial courts purported error resulted in a due process violation and therefore prejudice must be assessed under the standard pertinent to federal constitutional error, i.e., harmless beyond a reasonable doubt. Exclusion of the impeachment evidence did not deprive defendant of his due process right to present a defense, his contrary claim notwithstanding. The general rule remains that the ordinary rules of evidence do not impermissibly infringe on the accuseds [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. [Citations.] (People v. Lawley (2002) 27 Cal.4th 102, 155, fn. omitted, quoting People v. Cudjo, supra, 6 Cal.4th at p. 611, quoting People v. Hall (1986) 41 Cal.3d 826, 834.)

The erroneous exclusion of evidence requires reversal of a conviction only if that error was prejudicial in that it resulted in a miscarriage of justice. (Evid. Code, 354.) In this context, a miscarriage of justice occurs when this court is able to say, absent the error, that it is reasonably probable the jury would have reached a result more favorable to defendant. (People v. Watson (1956) 46 Cal.2d 818, 836.) We cannot say that the jury in this case would have reached a result more favorable to defendant on any of the charges at issue in this case if the jurors had heard that Y.B. engaged in sex with A.D. while he was a minor and thereby committed a crime of moral turpitude. In short, it is not reasonably probable the jury would have disbelieved Y.B.s testimony, and rendered a result more favorable to defendant, if the jurors had heard that she had sex with A.D. when he was a minor.

2.

SUFFICIENCY OF THE EVIDENCE

Defendant next contends that the evidence was insufficient to show that the statute of limitations had run on count 5, the charge that in or about 1996, defendant violated section 288, subdivision (c)(1), by committing a lewd and lascivious act on Y.B. while she was under 16 years of age. According to defendant, the evidence is insufficient because it did not show that the prosecution was properly commenced under section 803(g). At the time the complaint was filed in this case, section 803(g) provided in pertinent part: Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of [specified sex crimes, including section 288] . . . if [t]he limitation period specified in Section 800 or 801 . . . has expired and [t]he crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066 . . . and there is independent evidence that clearly and convincingly corroborates the victims allegations. (Stats. 2002, ch. 1059, 2.) Defendants claim is based on his assertion that the statute of limitations on a violation of section 288, subdivision (c)(1) is six years and therefore might not have expired before this action was filed. In fact, the statute of limitations is three years,^[4]as the Attorney General correctly points out. Because defendants claim depends entirely on his incorrect view regarding the statute of limitations, we need not address the contention in detail. Instead we note that according to the evidence presented at trial, the crime alleged in count 5 occurred between June 23, 1994, and June 23, 1997. The latest date on which the three-year statute of limitations would have expired is June 22, 2000, which is long before Y.B. reported the crime to law enforcement on August 27, 2002. In short, defendant is wrong in his view that the evidence was insufficient to show that the statute of limitations had run on the crime alleged in count 5 at the time Y. reported that crime to law enforcement.

In a separate but related claim defendant contends that section 803(g) is unconstitutional because it violates the ex post facto clauses of the federal Constitution by reviving time-barred causes of action, namely those alleged in counts 1, 3, 4, 5, and 7.^[5] Defendant relies on Stogner v. California (2003) 539 U.S. 607 (Stogner), where the court found section 803(g) to be an unconstitutional ex post facto law when used to revive a cause of action whose statute of limitations had expired long before section 803(g) was enacted. (Stogner, supra, 539 U.S. at p. 609.) Stogner does not prevent the State from extending time limits for . . . prosecutions not yet time barred. (Stogner, supra, 539 U.S. at p. 632.) Consequently, several courts have rejected the precise claim defendant raises in this appeal. (See, e.g., People v. Terry (2005) 127 Cal.App.4th 750, 775-777; People v. Vasquez (2004) 118 Cal.App.4th 501, 503; Peoplev. Superior Court (German) (2004) 116 Cal.App.4th 1192, 1194, 1196-1197; People v. Renderos (2003) 114 Cal.App.4th 961, 963, 965; People v. Robertson (2003) 113 Cal.App.4th 389, 393-394.) Section 803(g) was enacted in 1994, before the limitations period expired on defendants crimes. Consequently, as applied to defendant, section 803(g) is a permissible legislative extension of an unexpired limitations period.

3.

INSTRUCTIONAL ERROR

Defendant contends that the trial court did not properly instruct the jury on the section 803(g) allegation, first, because the trial courts instruction did not clearly state that the independent corroborating evidence had to be established by clear and convincing evidence, and second because the trial court did not define clear and convincing evidence for the jury. The Attorney General concedes that the trial court failed to define clear and convincing for the jury but contends that the error was harmless in view of the overwhelming corroborating evidence. We agree with the Attorney General, for reasons we now explain.

The trial court instructed in connection with the section 803(g) allegation that in order to find defendant guilty on counts 1 through 5 and count 7 the jury had to find the following: [] (1) A criminal complaint was filed within one year of the date of the report to law enforcement; [] (2) The statute of limitations has expired as to the charged crimes; [] (3) The charged crimes involved substantial sexual conduct; and [] (4) There is independent evidence that clearly and convincingly corroborates the victims allegation. The trial courts instruction included a definition of substantial sexual conduct and also stated, Even though the People must prove that the defendant is guilty beyond a reasonable doubt, the People must only prove by a preponderance of the evidence the truth of this allegation. Later, during deliberations, and in response to a note saying the jurors did not understand section 803, the trial court told the jury that in order to find defendant guilty on counts 1 through 5 and count 7, the jury had to find, among other things, that there is independent evidence that clearly and convincingly corroborates the victims allegation.

The trial court correctly instructed the jury that the independent evidence must clearly and convincingly corroborate the victims claim (see 803(g)), and that the other elements of the section 803 allegation, e.g., that the criminal complaint was filed within one year of the date the victim reported the crime to law enforcement, must be proved by a preponderance of the evidence. (See People v. Mabini (2001) 92 Cal.App.4th 654, 661 [When a statute of limitations issue goes to the jury in a criminal action and the statute is silent on the applicable burden of proof, [t]he proper burden is a preponderance of the evidence . . . .].) The trial courts error in this case was that it failed to define the phrase clear and convincing for the jury.

The remaining question is whether that error was prejudicial. The Attorney General points out an apparent split of authority on the standard for assessing prejudice resulting from failure to instruct on the statute of limitations. In People v. Stanfill (1999) 76 Cal.App.4th 1137, 1154, Division Two of the Second District held that such error is not structural and therefore is not reversible per se. Rather, such error is akin to failure to instruct on an element of the offense and as such is subject to harmless error analysis under the standard set out in Chapman v. California (1967) 386 U.S. 18, which requires reversal unless the error is harmless beyond a reasonable doubt. (People v. Stanfill, supra, at p. 1154.) In contrast, the Sixth District held in People v. Smith (2002) 98 Cal.App.4th 1182, albeit arguably in dicta, that the proper standard for evaluating an alleged erroneous failure to instruct on the statute of limitations is the traditional state prejudice standard set out in People v. Watson[, supra,] 46 Cal.2d [at p.] 818 [299 P.2d 243], given statutes of limitations are not elements of an offense and are not constitutionally mandated or subject to due process concerns. [Citation.] (People v. Smith, supra, at p. 1193.)

We will need not and therefore will not resolve the conflict because even under the stricter Chapmanv. California standard, the error in this case is harmless given the ample corroborating evidence. [E]vidence that the defendant committed a similar sexual offense against a different victim can . . . constitute sufficient corroboration for purposes of section 803(g). (People v. Zandrino (2002) 100 Cal.App.4th 74, 85.) Evidence of similar offenses against an uncharged victim . . . , if credited by the trier of fact, may standing alone constitute independent evidence that clearly and convincingly corroborates the victims allegation. (People v. Mabini, supra, 92 Cal.App.4th at p. 659; see also People v. Yovanov (1999) 69 Cal.App.4th 392, 404.)

The corroborating evidence in this case consists of the testimony of each of the three victims, as well as the testimony of S.O., Y.C., and A. As noted previously, O.and C. are A.D.s aunts (the sisters of his mother), each of whom testified that defendant had molested them in a manner similar to that described by Y.B. and when they were in their early teens, the same age Y.B. was when defendant allegedly molested her. Defendants younger brother A. testified to two incidents that occurred when defendant was 13 to 15 years old and A. was between five and seven years old, in which defendant had A. touch defendants penis. A.D. was about the same age as A. was when defendant allegedly molested A.D. by among other things making the child touch defendants penis.

In view of the noted corroborating evidence, we are persuaded that the trial courts error in failing to define clear and convincing for the jury did not affect the jurys verdicts in this case and therefore was harmless beyond a reasonable doubt.

4.

SENTENCING ERRORS

Defendants remaining claims raise sentencing issues. First, defendant contends the trial court erred by sentencing defendant on count 1 to serve a term of 15 years to life in state prison under the so-called One Strike law ( 667.61, subd. (b)), because that law was not enacted until after defendant committed the crime alleged in that count and that sentence is more severe than the sentence defendant would have received under the law in effect at the time defendant committed the crime. The Attorney General concedes the error. That concession is appropriate. Therefore, we will vacate the sentence imposed on count 1.

Defendant raises the same challenge to the sentences the trial court imposed on counts 6, 8, 9, and 10. On those counts, the trial court sentenced defendant to consecutive terms of 15 years to life in state prison under section 667.61, subdivision (e)(5), which authorizes such a sentence when [t]he defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim. Defendant contends that the sentences are unlawful because they punish him for conduct that occurred before section 667.61, subdivision (e)(5) went into effect, in violation of ex post facto principles. Defendant acknowledges that this precise claim was rejected in People v. Alvarez (2002) 100 Cal.App.4th 1170, 1179, but he urges that the case is wrongly decided.

In People v. Alvarez, the court concluded that the multiple victim provision of the One Strike law was not being applied to conduct that preceded adoption of that law. The Alvarez court analogized to cases involving the three strikes law ( 667.5, subds. (b)-(i), 1170.12) which hold that law can be applied to an offense committed after the three strikes law became effective, even though the qualifying strikes were committed before the laws effective date. (People v. Alvarez, supra, 100 Cal.App.4th at p. 1179, citing People v. James (2001) 91 Cal.App.4th 1147, 1150.)

Defendant contends that People v. Alvarez is wrong. We will not resolve the issue because in this case defendant was convicted of crimes against more than one victim that occurred after the effective date of the One Strike law. Specifically, defendant was convicted on count 5 of committing a lewd act on Y.B. in or about 1996, in violation of section 288, subdivision (c)(1). That crime occurred after the 1994 effective date of the One Strike law. The victim in counts 6, 8, 9, and 10, all of which occurred after 1994, is J. Therefore defendant has current convictions against multiple victims and we need not decide whether section 667.61, subdivision (e)(5) violates ex post facto principles when the crimes against other victims occurred before the effective date of that statute.

Defendant also challenges the trial courts imposition of consecutive indeterminate sentences of 15 years to life on counts 1, 6, 8, 9, and 10. In imposing those sentences the trial court stated, in pertinent part, that each of those terms would be required to be served consecutive, pursuant to People versus Jackson. The Attorney General concedes that consecutive sentences were not mandatory on the counts in question and therefore the trial court mistakenly believed it lacked discretion to impose concurrent sentences on those counts. That concession is appropriate.

In People v. Jackson (1998) 66 Cal.App.4th 182, the defendant was convicted of crimes listed in former section 667.6, subdivision (d), which mandated consecutive sentences for such crimes but in sentencing the defendant the trial court imposed concurrent sentences after concluding that the consecutive sentencing provision did not apply when the defendant is sentenced under section 667.61, the One Strike law, to indeterminate terms in prison. (People v. Jackson, supra, at p. 190.) The court of appeal held that the trial court was mistaken. (Id. at p. 192.)

In this case defendant was convicted on counts 1, 6, 8, 9, and 10 of violating section 288, subdivision (a), which is not a crime included in former section 667.6, subdivision (d), and therefore consecutive sentences are not mandatory. Under the One Strike law the trial court has discretion to impose either concurrent or consecutive sentences. ( 667.61, subds. (b) & (g).) Because the trial court mistakenly believed consecutive sentences were mandatory, its imposition of those sentences was not an exercise of the trial courts discretionary sentencing authority. Therefore, we will remand this matter to the trial court for resentencing.

DISPOSITION

The determination of guilt is affirmed but defendants sentence is vacated and the matter remanded to the trial court for resentencing in accordance with the principles set out above.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

Acting P.J.

We concur:

/s/ King

J.

/s/ Miller

J.

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^[1]All further statutory references are to the Penal Code unless otherwise indicated.

^[2]The trial court dismissed count 2, which charged defendant with violating section 288, subdivision (b)(1), by committing a lewd and lascivious act by force or fear on Aaron D., after the jury was unable to reach a verdict on that count.

^[3]All further references to section 803(g) refer to the version in effect at the time the complaint was filed.

^[4]Section 801 states that the statute of limitations for a crime punishable by imprisonment in state prison is three years. A violation of section 288, subdivision (c)(1) is punishable by up to three years in state prison and therefore is subject to the three-year statute of limitations set out in section 801.

^[5]Defendant raised this issue in the trial court in a demurrer.