P. v. Hutter
Filed 6/11/13 P. v. Hutter CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JONATHAN GREGORY HUTTER,
Defendant
and Appellant.
E055202
(Super.Ct.No.
SWF028047)
OPINION
APPEAL
from the Superior Court
of
County. Mark E.
Petersen, Judge. Affirmed as modified.
Gregory
L. Cannon, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, Bradley Weinreb and William M. Wood, Deputy
Attorneys General, for Plaintiff and Respondent.
This is an appeal by defendant and
appellant Jonathan Gregory Hutter (defendant) from the judgment entered after a
jury found him guilty as charged of forcible
rape (Pen. Code, § 261, subd. (a)(2)), count 1),
a child under the age of 14 years, who was seven or more years younger than
defendant (§ 269, subd. (a)(4), counts 2-4), two counts of rape of a child
under the age of 14 years (§ 269, subd. (a)(1), counts 5 & 6), forcible
sodomy of a child under the age of 14 years, who was seven or more years
younger than defendant (§ 269, subd. (a)(3), count 7), and lewd conduct with a
child under the age of 14 years (§ 288, subd. (a), count 8). The jury also found true a multiple victim
special allegation. (§ 667.61, subd.
(e)(5).)
The
trial court sentenced defendant to serve eight consecutive terms of 15 years to
life in state prison. The trial court
also imposed various fines, including a $3,800 fine under section 290.3, and
restrictions, one of which prohibited defendant from knowingly owning,
possessing, or having under his control any firearm, deadly weapon, ammunition,
or related paraphernalia for the remainder of his life.
Defendant
contends in this appeal that the trial court committed prejudicial error by
excluding evidence that Jane Doe 1 had previously accused her grandfather of
sexually molesting her and then recanted the accusation. Next, defendant contends the trial court’s
instruction on child sexual abuse accommodation syndrome (CSAAS) was incorrect
and, as a result, improperly allowed the jury to consider that evidence as
corroboration of Jane Doe 1’s testimony about defendant. Defendant also challenges the $3,800 fine the
trial court imposed under section 290.3, which he contends should be
$2,400. Defendant also contends the
trial court’s lifetime ban on defendant owning or possessing firearms and/or
dangerous weapons is unlawful and must be stricken.
The
Attorney General concedes both claims of sentencing
error, but contests the amount of the section 290.3 fine the trial court
should impose on remand. We conclude, as
we explain below, both concessions are appropriate, and the section 290.3 fine
should be $2,500, as the Attorney General contends. Defendant’s remaining claims are
meritless. Therefore, we will modify
defendant’s sentence and, as modified, affirm the judgment.
The
details of the various crimes are not pertinent to our resolution of the issues
defendant raises in this appeal and are set out in the parties’ respective
briefs. Moreover, although defendant
denies that he committed any of the alleged offenses, he does not dispute the
evidence presented at trial. For our
purpose, it is sufficient to note the charges in this case involved two
victims, identified as Jane Doe 1 and Jane Doe 2. Jane Doe 1 is defendant’s older daughter and
the victim alleged in counts 1 through 7, who, in the summer of 2008 when she
was 15 years old, told her boyfriend that defendant had been sexually molesting
her since she was a very young child. The
boyfriend told his parents, and they, in turn, reported the claims to Jane
Doe 1’s mother. A month earlier,
Jane Doe 1’s older brother, J.J., told his aunt that defendant had been
sexually molesting Jane Doe 1. The
aunt reported the claim to Jane Doe 1’s mother, who is the aunt’s sister. After talking with the parents of Jane Doe
1’s boyfriend, Jane Doe 1’s mother spoke with the aunt, and the aunt called the
police.
When
interviewed by a police officer, Jane Doe 1 initially was uncooperative and
unwilling to talk. Eventually, she
agreed to respond yes or no to the officer’s questions and in doing so provided
sufficient information to establish that she had been sexually molested by
defendant.
Additional
facts will be recounted below as pertinent to the issues defendant raises on
appeal.
HAD MADE A PRIOR SEXUAL MOLESTATION CLAIM
Defendant
and the district attorney each filed pretrial motions asking the trial court to
determine the admissibility of evidence that Jane Doe 1 had previously accused
her grandfather of sexually molesting her and then had purportedly recanted the
accusation. More particularly, in his
trial brief, the prosecutor set out an investigation conducted by the Los
Angeles County Sheriff’s Department after Jane Doe 1’s older brother, J.J.,
reported to school counselors in April 2008 that he had been sexually molested
and believed his sister also was a victim.
A local police officer contacted J.J. and, although J.J. refused to identify
the offenders, the officer concluded the offenders were the children’s paternal
grandparents. When the officer contacted
Jane Doe 1, she refused to talk with him.
Two weeks later, a different officer contacted Jane Doe 1. At that time, Jane Doe 1 talked with the
officer and said that her brother had made up the molestation story because he
“wanted to get into foster care.â€
In his opposition
to the prosecutor’s motion, defendant added that both J.J. (identified as John
Doe) and Jane Doe 1 told the second police officer that the accusation was
untrue, and the entire story had been fabricated. When later interviewed by a Los
Angeles County
deputy sheriff, Jane Doe 1 said she had been molested by her grandfather at her
grandparents’ home in Los Angeles County
when she was about nine or 10 years old.
Following a
hearing on the issue, the trial court granted the prosecutor’s motion to
exclude all evidence regarding the so-called Los Angeles investigation on the
grounds, first, that it was not relevant because J.J., not Jane Doe 1, was the
accuser, and, next, because even if relevant, the probative value of the
evidence was substantially outweighed by its potential for prejudice,
confusion, and undue consumption of time under Evidence Code section 352. Defendant raised the issue again at trial
during his cross-examination of Jane Doe 1 and also before resting his
case. Both times, the trial court
reaffirmed its earlier ruling and excluded the evidence.
Defendant contends
the trial court’s ruling was erroneous and had the effect of depriving him of
his right to present a defense. We
disagree.
A.
Standard of
Review
“[A]n appellate court applies the
abuse of discretion standard of review to any ruling by a trial court on the
admissibility of evidence, including one that turns on the relative probativeness
and prejudice of the evidence in question [citations]. Evidence is substantially more prejudicial
than probative (see Evid. Code, § 352) if, broadly stated, it poses an
intolerable ‘risk to the fairness of the proceedings or the reliability of the
outcome’ [citation].†(
724.) On appeal, we will not disturb the
trial court’s discretionary ruling “‘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.’†(People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) In this context, a manifest abuse of
discretion occurs if we are able to say it is reasonably probable the jury
would have reached a result more favorable to defendant if the excluded
evidence had been introduced at trial. (
836.)
“Just
as a prior false accusation of rape is relevant on the issue of a rape victim’s
credibility [citation], a prior false accusation of sexual molestation is
equally relevant on the issue of the molest victim’s credibility.†(People
v. Franklin (1994) 25 Cal.App.4th 328, 335.) In this case, J.J., not Jane Doe 1, made the
sexual molestation accusation against the paternal grandparents. Jane Doe 1 denied that accusation by saying
it was untrue, that J.J. had made it up.
Later, Jane Doe 1 recanted that denial and told a third police officer
that she had in fact been molested by her grandfather. Defendant did not present any evidence to
show that Jane Doe 1’s accusation of her grandfather was untrue or later
recanted. In short, and contrary to
defendant’s characterization, this is not a situation in which Jane Doe 1
recanted a prior accusation of abuse; she recanted a previous denial that abuse
had occurred.
Unlike
evidence that a victim recanted an accusation of
victim initially denied being sexually abused does not necessarily impugn the
victim’s credibility. Jody Ward, Ph.D.,
the prosecutor’s expert witness on CSAAS, explained that a child who has been
sexually molested would not respond in the same way an adult might respond in
the same situation. For various reasons,
other than dishonesty, a child who has been sexually molested might initially
deny having been molested. Because
evidence that Jane Doe 1 initially denied she had been sexually abused by her
grandfather did not necessarily impugn Jane Doe 1’s credibility, we cannot say
the trial court abused its discretion by excluding the evidence from trial.
For this same
reason, even if we were to conclude otherwise, exclusion of the evidence did
not deprive defendant of his right to
present a defense. His defense in
this case was that he did not molest either alleged victim, and that they both
were lying. To support that defense,
defendant attacked Jane Doe 1’s credibility with evidence that in 2007 and
2008, when she was a young teenager, Jane Doe 1 had many opportunities to
disclose that defendant had molested her and yet she not only did not report
the molestation, on several occasions, she also denied that she had been
molested by anyone. She said she had a
good relationship with defendant and felt safe and protected when with him.
Moreover,
application of the rules of evidence, “[a]s a general matter,†does “not
impermissibly infringe on the accused’s right to present a defense.†(People
v. Hall (1986) 41 Cal.3d 826, 834.)
Therefore, even if we were to conclude error occurred, it would be error
only under state law. Consequently,
reversal of defendant’s conviction would be required if a miscarriage of
justice occurred, i.e., only if we were to conclude the error was prejudicial
in that it is reasonably probable the jury would have reached a result more
favorable to defendant on any of the charges in this case if the jurors had
heard that Jane Doe 1 initially denied she had been sexually abused by her
grandfather. (People v. Watson (1956) 46 Cal.2d 818, 836.)
To
the extent defendant contends the trial court erred when it again ruled the
evidence inadmissible after Jane Doe 1 testified at trial about an incident in
which she confronted defendant and he cried, we must again disagree. Defense counsel represented in the trial court
that according to her statement to the defense investigator, Jane Doe 1 said
defendant cried when she disclosed to him that she had been sexually molested
by her grandfather. According to defense
counsel, that was the only time in the interview that Jane Doe 1 mentioned
defendant had cried. Because her
testimony on direct examination was that defendant cried when Jane Doe 1
confronted him about sexually molesting her, it created the impression that
defendant had admitted the accusation.
In order to refute that negative inference, defendant renewed his
request to question Jane Doe 1 about whether she had accused her grandfather of
sexually molesting her and, in doing so, clarify that defendant had only cried when
Jane Doe 1 disclosed that information to him.
In short, defendant wanted to impeach Jane Doe 1 with her
statement to the defense investigator.
The trial court did not abuse its
discretion by excluding the evidence in question. As the trial court noted, defendant might
have cried more than once, even though Jane Doe 1 apparently had not mentioned
that when the defense investigator questioned her. In short, and simply put, the probative value
of the evidence is substantially outweighed by its potential for
prejudice. (Evid. Code, § 352.) Even if we were to conclude otherwise, the
purported error necessarily was harmless, for the reasons previously discussed.
INSTRUCTION ON CSAAS
Dr.
Ward, the prosecution’s expert witness, testified at trial regarding CSAAS.
instruction directed at limiting the purpose for which the jury could consider
the expert’s testimony. The trial court
refused that instruction, a ruling defendant does not challenge in this
appeal. The trial court instructed the
jury according to CALCRIM No. 1193 as follows:
“You have heard testimony from Jody Ward regarding Child Sexual Abuse
Accommodation Syndrome. [¶] Jody Ward’s testimony about Child Sexual Abuse
Accommodation Syndrome is not evidence that the defendant committed any of the
crimes charged against him. [¶] You may consider this evidence only in
deciding whether or not [Jane Doe No. 1]’s and/or [Jane Doe No. 2]’s
conduct was not inconsistent with the conduct of someone who has been molested,
and in evaluating the believability of her testimony.â€
Defendant
contends the instruction is wrong because it permits the jurors to use CSAAS
evidence as proof of guilt. In
particular, defendant argues that by instructing the jury they could consider
the CSAAS testimony in evaluating the victims’ credibility, the trial court
effectively advised the jurors that the CSAAS evidence could be viewed as
corroboration of the victims’ claims. We
disagree.
As
defendant correctly notes, expert testimony on CSAAS is admissible to disabuse
jurors of possible misconceptions regarding how a sexually abused child would
likely act. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301.) CSAAS evidence is also admissible when the
victim’s credibility is attacked. (
1737, 1745.) In this case, the
credibility of both victims was in question because defendant denied that he
had molested either child. As noted
above in the fact summary, defendant based his defense in part on the fact that
Jane Doe 1 had not reported the molestation earlier, even though she had
several opportunities to do so.
Defendant’s
argument that the trial court’s instruction allowed the jury to consider CSAAS
evidence as corroboration assumes the instruction compelled the jury to believe
the victims. The instruction, however,
does not compel a particular result; it simply instructed the jurors that CSAAS
evidence may be considered only for limited purposes, one of which is deciding
the believability of the victims’ claims.
The instruction allowed the jury to decide whether the victims were
credible and, therefore, telling the truth; it did not compel the jury to reach
a particular conclusion. Because the
jury instruction is neutral, it did not have the effect of instructing the jury
that CSAAS evidence may be considered as corroboration of the victims’
testimony.
In
short, CALCRIM No. 1193 correctly states the pertinent legal principles, and we
therefore reject defendant’s challenge to that jury instruction.
Section 290.3 Fines
Defendant
contends the trial court incorrectly relied on the version of section 290.3 in
effect at the time of sentencing to impose a fine totaling $3,800, because that
version of the statute only came into effect on September 20, 2006. Before then, section 290.3 specified a fine
of $200 for the first conviction and $300 for the second conviction of
specified offenses, which include those of which the jury found defendant
guilty in this case. Consequently,
defendant contends the correct total fine should be $2,400. The Attorney General concedes the error, but
contends the total fine should be $2,500.
We agree with the Attorney General.
Until
September 20, 2006, section 290.3 provided that a fine of $200 for the first
conviction or $300 for a second and every subsequent conviction be imposed on
every person convicted of any offense specified in subdivision (a) of section
290. (Former § 290.3, subd. (a);
Stats. 1995, ch. 91, § 121; Stats. 2006, ch. 69, § 27, eff. July 12,
2006.) The statute was amended effective
September 20, 2006, to specify a fine of $300 for the first conviction and $500
for every second and subsequent conviction.
(Former § 290.3, subd. (a); Stats. 2006, ch. 337, § 18, eff. Sept.
20, 2006.)
The
parties agree that count 1 is the only conviction that comes within the amended
statute, and that the remaining counts are subject to the lower fines. The Attorney General notes that both versions
of section 290.3 specify a lower fine for the first conviction and a higher
fine for second and subsequent convictions, but the statute does not define the
phrase “first conviction.†It could mean
a conviction in an earlier proceeding, or it could mean a conviction for a
crime committed earlier in time than another crime, even if both are
adjudicated in the same proceeding. The
Attorney General asserts that the latter interpretation is the one that would
not lead to arbitrary and, therefore, absurd results in a case such as
this. We agree.
“Under settled
canons of statutory construction, in construing a statute we ascertain the
Legislature’s intent in order to effectuate the law’s purpose. [Citation.]
We must look to the statute’s words and give them ‘their usual and
ordinary meaning.’ [Citation.] ‘The statute’s plain meaning controls the
court’s interpretation unless its words are ambiguous.’ [Citations.]â€
(Imperial Merchant Services, Inc.
v. Hunt (2009) 47 Cal.4th 381, 387-388.)
In a case such as
this, which involves multiple convictions of crimes all subject to fines under
section 290.3, the phrase “first conviction†necessarily means the crime
alleged to have been committed first in time.
Any other interpretation would either allow defendant to avoid the
higher fine specified for second and subsequent convictions, or would turn on
the arbitrary order in which the prosecutor alleges the crimes in the complaint
and/or information. Either of those
options would lead to absurd and unintended results. Accordingly, we agree with the Attorney
General that the section 290.3 fines in this case must be imposed based on the
date the alleged crime occurred. Counts
2, 3, and 4 are alleged to have occurred between December 10, 1999, and
December 10, 2002. Therefore,
defendant’s conviction on one of those counts constitutes his “first
conviction†within the meaning of section 290.3 and is subject to the fine of
$200 then in effect. Two of those counts
are subject to the $300 fine specified for second and subsequent convictions
under the version of section 290.3 then in effect. Defendants convictions on counts 5, 6, 7, and
8 are also subsequent convictions and subject to the $300 fine. Count 1, however, is alleged to have occurred
between December 10, 2006 and November 28, 2007, and is subject to the amended
statute and the fine of $500 for second and subsequent offenses. Therefore, the total fine under section 290.3
is $2,500.
Weapons Possession Order
Defendant
contends, and the Attorney General agrees, that the trial court’s order that
states defendant is not to “own, possess or have under [his] control any
firearm, deadly weapon, ammunition or related paraphernalia for life†is not
authorized by law. The Attorney General’s
concession is appropriate.
As the Attorney
General points out, the subject of weapons possession is covered by section
29800, subdivision (a)(1), which states, “Any person who has been convicted of
a felony under the laws of the United States, the State of California, or any
other state, government, or country, or of an offense enumerated in subdivision
(a), (b), or (d) of Section 23515, or who is addicted to the use of any
narcotic drug, and who owns, purchases, receives, or has in possession or under
custody or control any firearm is guilty of a felony.†Section 29810 requires the trial court to
give written notice of the restriction at the time of sentencing.
Section 29800
refers only to firearms. The trial
court’s order in this case extends beyond firearms and includes “any . . .
deadly weapon, ammunition or related paraphernalia.†The quoted language is not authorized by law
and, therefore, we will direct that it be stricken.
The
judgment is modified by reducing the total fine under section 290.3 from $3,800
to $2,500 and by striking the order that states defendant is not to “own,
possess or have under your control any firearm, deadly weapon, ammunition or
related paraphernalia for life.†As
modified, the judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
HOLLENHORST
Acting P. J.
RICHLI
J.
name="_ftn1" title=""> [1] All statutory references are to the Penal
Code, unless indicated otherwise.
name="_ftn2" title=""> [2] The declaration of defendant’s trial attorney
states that Jane Doe 1 was molested by her paternal grandfather when she was
home alone with her paternal grandmother.
Because it would have been impossible for Jane Doe 1’s grandfather to
molest her if she had been home alone with her grandmother, we assume the
reference to the grandmother is a mistake.
