P. v. Dixon

Filed 4/11/07 P. v. Dixon CA1/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Alfred E. Dixon appeals from a judgment convicting him of committing a lewd and lascivious act on a child under 14 years of age. In response to prosecution evidence of a prior incident of sexual misconduct, the court permitted defendant to bring out that he was not charged or convicted of a sex-related offense with regard to that incident, but excluded evidence that he was discharged of such an offense. We reject defendants contention that the court erred in excluding this evidence.

Factual and Procedural History

Defendant was charged by information with one count of committing a lewd and lascivious act on a child under 14 years of age, with an allegation that defendant had substantial sexual conduct with the victim. (Pen. Code,[1] 288, subd. (a), 1203.066, subd. (a)(8).) The information also alleged that defendant had a 1997 conviction for burglary that qualified as a prior serious felony conviction, a prior strike conviction, and for which he had served a prior prison term. ( 667, subds. (a)(1) & (b)-(i), 1170.12, 667.5, subd. (b).)

The following evidence was presented at defendants jury trial:

On July 4, 2005, the 11-year-old victim was staying at the home of her adult cousin Anita. Many others, including Anitas father, the defendant, were also spending the night there. Anita testified that when she went to sleep at around 3:00 a.m. the victim, defendant and the other children were in the living room watching television. Sometime between 6:00 a.m. and 7:00 a.m. defendant woke Anita to ask for a cigarette. She directed him to a pack of cigarettes by her bed and as defendant left the room he said something like That little girl gonna come in here and say I tried to do something to her. As soon as defendant left, the victim came into the bedroom, reporting I got to tell you something. . . . When I woke up, your daddy was sucking on me. When asked where, the victim pointed to her vagina. Anita called the police and reported the incident.

The victim testified that while watching television she had fallen asleep on the couch with the other children. She was wearing her swimsuit bottom, jeans and a shirt. Early in the morning, she was awakened to find that defendant had unbuttoned and unzipped her pants and partially pulled down her swimsuit bottom. Defendant was on his knees licking the exposed part of her vagina. The victim pushed defendant away.

Police Officer David Zuniga testified that he arrived at Anitas home shortly before 8:00 a.m. on July 5. He took a brief statement from the victim, who appeared to be upset and looked as if she had been crying. The victim was cooperative and although she began to cry when she described the incident, she was able to demonstrate the positions of defendant and herself during the incident. On cross-examination, the officer stated that defendant was cooperative when asked to give a DNA sample, knowing the purpose for which the sample would be used.

Anitas 17-year-old cousin testified regarding a separate incident with defendant that occurred when she was staying with Anita in June. She testified that she was watching television alone with defendant when he spontaneously asked if he could suck on [her] pussy. She was shocked and left the room. Although she told Anita what defendant had said to her, the police were not called.

Susan R. testified to another incident involving defendant. She testified that in 1996, when she was 14 years old, she was awakened around 3:00 a.m. to find a man kneeling over her by the side of her bed. Her blankets had been pulled down and she felt the rim of the mans baseball cap moving up her thighs toward her vagina. The man ran when she screamed, but she immediately recognized him as her fathers friend and she identified defendant as the man who had been in her room that night. Susan also testified that on the morning after this incident she discovered that some of her jewelry was missing.

The jury found defendant guilty as charged. In bifurcated proceedings on the prior conviction allegation, the jury received documentary evidence defendant had been convicted of first degree burglary in 1997 arising out of the incident about which Susan R. had testified. The jury found the prior conviction allegation true. Defendant was sentenced to 17 years in prison and filed a timely notice of appeal.

Discussion

Defendant contends that the trial court erred in excluding evidence that he was discharged from a sexual offense in connection with the 1996 incident to which Susan R. testified. Prior to the start of trial, counsel discussed with the court the admissibility under Evidence Code section 1108 of evidence of the prior incidents of sexual misconduct. After the court ruled that the prosecution could present evidence of the 1996 incident involving Susan R. even though defendant had been convicted in 1997 of only burglary and not a sexual crime, defendant sought to introduce evidence that he was discharged of any sex-related offense arising out of that incident. The transcript from the preliminary hearing in connection with that offense revealed that at the conclusion of the preliminary hearing in which defendant had been charged with burglary, the prosecutor made an oral request to amend the complaint to allege an attempted violation of section 288, subdivision (c)(1) based on Susans testimony that when she awoke she felt the rim of defendants hat moving up her thighs. Defendants attorney objected to the amendment on the grounds that [t]here was no attempt to previously amend this and there was insufficient evidence from this record on which to find . . . any intent for such charge. The trial court did not rule expressly on the motion to amend, but stated instead, I am not that certain about the [attempted commission of a lewd and lascivious act on a child] so Ill not bind him over on that particular felony. Having reviewed that transcript, the trial court in the present action refused to allow defendant to tell the jury he was discharged of any sexual offense because he wasnt charged with any sexual offense. To rebut Susans testimony, the court permitted defendant to present evidence that he was charged only with burglary and not a sex offense. Consistent with that ruling, defendant argued in closing that despite Susan R.s testimony at the 1996 burglary trial, which was essentially the same as her testimony at the present trial, defendant was not convicted of a sex-related offense.

Defendant argues that the additional evidence that he was not held to answer for a sex offense after the prosecution sought to amend the complaint should also have been admitted. (See People v. Jenkins (1970) 3 Cal.App.3d 529, 534-535 [evidence that defendant had not been prosecuted for a prior similar offense is admissible to weaken or rebut the prosecution's evidence that the defendant committed the prior offense].) However, we question, as did the trial court, whether this additional evidence would have much probative value in light of the manner in which the proposed amendment was raised and resolved at the preliminary hearing. The trial court noted, [G]etting to the 1996 incident, . . . the judge not granting the D.A.s request at the last minute to amend the Information and . . . hold to answer on that charge, I just dont give that as much significance as you do. He wasnt initially charged with it. The D.A. made one comment. There wasnt any discussion about it. He didnt even argue facts in support of it, and the judge just said, Im not sure, so I just dont give that that much credence.

The trial courts decision to limit the admissibility of evidence is reviewed for an abuse of discretion (People v. Alvarez (1996) 14 Cal.4th 155, 201). Based on the record before us we cannot say that the court abused its discretion by excluding this evidence. Defendant was permitted to bring out what was most important from his standpoint, that he was neither charged nor convicted of a sex offense in connection with the 1996 incident. The details concerning the request to amend the 1997 information were of marginal if any relevance and getting into them could easily have caused confusion and undue time to clarify for a jury. Moreover, it is simply not correct that he was discharged from an offense of which he was never charged.

Even if the court erred in excluding this evidence, the error clearly was not prejudicial in light of the evidence that was admitted, that defendant was not charged or convicted of a sex-related offense arising out of the 1996 incident, and in light of the overwhelming evidence of defendants guilt of the offense with which he was charged in this case. (People v. Watson (1956) 46 Cal.2d 818, 836.)[2]

Disposition

The judgment is affirmed.

_________________________

Pollak, J.

We concur:

_________________________

Parrilli, Acting P. J.

_________________________

Siggins, J.

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[1] All statutory references are to the Penal Code.

[2] Defendant also contends that the trial court erred in instructing the jury with CALJIC No. 2.50.01. He acknowledges that his argument has previously been rejected by our Supreme Court (People v. Reliford (2003) 29 Cal.4th 1007), but seeks to preserve the issue should the United States Supreme Court hold otherwise.