P. v. Pea

Filed 8/30/07 P. v. Pea CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Sammy Pea was convicted after jury trial of three counts of incest (Pen. Code, 285),[1] and after court trial of one count of rape ( 261, subd. (a)(2)). The court sentenced defendant to three years in state prison and imposed various fines and fees, including a $20 court security fee ( 1465.8). On appeal, defendant contends that (1) the court committed prejudicial error in refusing to entertain his peremptory challenge, (2) his conviction for rape and for one count of incest are barred by the statute of limitations, (3) the court erred in refusing to allow impeachment of the victim with the contents of a letter written to her by a former boyfriend, (4) the evidence is insufficient to support the incest convictions, and (5) the imposition of the court security fee violates prohibitions against ex post facto and retroactive application of statutes. We disagree with these contentions and, therefore, affirm the judgment.

BACKGROUND

Defendant was charged by first amended information with two counts of rape

( 261, subd. (a)(2); counts 1 & 2), and three counts of incest ( 285; counts 3 5). Pursuant to Code of Civil Procedure section 170.6, subdivision (a)(2),[2] on May 10, 2006, the trial judge denied defendants peremptory challenge as untimely. During motions in limine, the prosecutor sought to introduce evidence of the existence of a letter sent to the victim by a former boyfriend in Samoa, which was intercepted by defendant and presented by him to the police, but to exclude any evidence of the contents of the letter. Defendant sought to introduce the contents of the letter to impeach the victims credibility. The court granted the prosecutors request and ruled that the contents of the letter could not be used to impeach the victim.

The Prosecutions Case

The victim was born and raised in Samoa, where she lived with her mother, stepfather, and seven siblings. She thought that her stepfather was her biological father until defendant wrote her a letter when she was in high school, telling her that he was her father and expressing an interest in having contact with her. She asked her mother about defendants letter. Her mother said that defendant had been her boyfriend, that defendant had left Samoa for the United States knowing that she was pregnant with the victim, and that defendant is the victims father. She apologized for not telling the victim everything before then. The victim communicated with defendant through letters and phone calls. Her native language is Samoan, but she learned English in high school.

Defendant invited the victim to come to the United States, and offered to sponsor her. Her mother was upset about her leaving, but defendant paid for her plane ticket and led the victim and her mother to understand that the victim would be gone for only three months. The victim arrived in California in March 1995, a few weeks before her 18th birthday. Defendant took the victims immigration papers and kept them in a locked file cabinet in his office. He gave her her green card, and explained what a green card is. After three months, the victim told defendant that she wanted to go home, but he told her that this was where she was supposed to be.

The victim lived with defendant and his wife and family. The first year she was here, the victim treated defendant like a daughter would treat her father; she respected and obeyed him. She started working on a daily basis for defendant at his office shortly after her 18th birthday. After she started taking classes in September 1995 to get her high school diploma, she worked in defendants office after school. Defendant did not pay the victim for her work, and she relied on defendant and his family for her necessities. She wrote to her mother many times, but she never received any letters from her mother or from anybody else.

One day before her graduation ceremony in June or July 1996, when she was 19, the victim was in defendants office when defendant got up and locked all the doors. He then pushed the victim up against the wall and started kissing her. He also rubbed her breasts and vagina over her clothes. The victim tried to push defendant away and asked him what he was doing; she was afraid and confused. Defendant said that he loved her. The victim continued to struggle and defendant finally stopped. The victim returned to her work area and did not call the police or tell anybody in defendants family about the incident.

A few days later, defendant told his wife that he was going to teach the victim how to drive. After her driving lesson, some time between 9:00 and 10:00 p.m. that night, defendant drove the victim to a store parking lot and parked the car. The area was dark, and the victim asked defendant what they were doing there. Defendant did not answer her. He took off his and the victims seat belts, and then climbed over the center console and got on top of the victim, facing her. He unzipped and pulled down his and the victims pants and put his penis inside her vagina. The victim said, please stop, and tried to push defendant away, but she was unable to do so. The victim was angry, afraid, and embarrassed. After defendant ejaculated, he climbed back into the drivers seat, threw napkins at the victim, and told her to wipe herself and to put her clothes on. The victim asked defendant what would happen if she told his wife about the incident, but defendant did not respond and drove them home. The victim did not tell defendants wife what happened because the two of them were not close.

Defendant subsequently had intercourse with the victim three or four times each week. Sometimes it occurred at his house or in his car while defendant was giving the victim driving lessons, but most of the time it occurred at his office. The first four or five times, the victim struggled with defendant and told him that she did not want to do it. When defendant continued his sexual assaults, the victim stopped struggling and let him do whatever he wanted to do. She was embarrassed, afraid, and confused. Defendant told the victim many times that if she ever told anybody about their sexual contacts, he would hang her. He also said that nobody would believe her.

In early 1997, sometime after the victim actually received her high school diploma in January, the victim got a job at Trend Plastics. At the end of 1997, the victim quit her job and flew to Oregon to live with defendants brothers family. She did not tell the family about her problems with defendant. She returned to California in May 1998, when defendant told his brother that defendant needed the victim to babysit while his wife worked. Defendants brother sent the victim back to defendant. Defendant immediately began having sexual intercourse with the victim again. The sexual assaults would occur at defendants house during weekdays when the victim was babysitting, or in defendants office on the weekends.

One afternoon, the victim became upset at defendants family and defendant beat her, causing her to have black eyes and a broken nose. Shortly thereafter, the victim found out that she was pregnant. She was afraid and embarrassed. Defendant wanted her to get an abortion, so she flew to Southern California and stayed with defendants cousin, Yee-Hung Tonumaipea, and his wife. She told them that she had a problem with defendant, but she did not tell them that defendant had been sexually assaulting her or that she was pregnant. She stayed with Tonumaipea for only a few weeks because defendant called and threatened to kill her if she did not have an abortion. Defendant also called Tonumaipea often, encouraging him to send the victim back. The victim returned to the Bay Area and stayed with a friend she had met at Trend Plastics.

Defendant continued to call the victim and tell her to get an abortion. He took her to apply for medical insurance, and then, in the summer of 1998, to get the abortion. She told the abortion clinic that the father of her child was a boyfriend from Samoa who went back home. After the procedure defendant took the victim back to her friends house, where she stayed; she did not go back to live with defendant. She continued to work at defendants office on a daily basis, however, even though defendant was not paying her and he continued to have sexual intercourse with her two or three times each month. When the victim got a job at Unilab in October or November 1998, she continued to work at defendants office on the weekends. She was still afraid of defendant and thought that if she did not do what he wanted her to do, he would carry out his threat to kill her.

The victim started dating David Hatch in May 2000. In early 2001, the victim told Hatch that defendant had sexually abused her beginning around the time of her high school graduation, and she showed him a romantic Valentines Day card that defendant had given her. She said that she had moved out of defendants home, but she did not say whether the abuse had stopped or was still occurring. Hatch encouraged the victim to talk to her church bishop and to the police. The victim told her church bishop that defendant had sexually assaulted her, and the bishop encouraged her to talk to the police and to family members. The victim called Tonumaipea and told him that defendant had sexually assaulted her, but Tonumaipea did not encourage her to do anything about it and he did not contact the police. The victim did not talk to the police herself because she was still afraid of defendant. The victim stopped dating Hatch in August 2002.

The victim started dating Robert S., who is now her husband, in early November 2002, and they became engaged in July 2003. After she had a miscarriage in September 2003, the victim told Robert for the first time that defendant had sexually assaulted her. Robert contacted the police, and the police contacted the victim in October 2003. The victim told both Robert and the first officer she talked to that the sexual assaults began before her graduation ceremony and ended after her abortion. Defendant did not really stop assaulting her until May 2003, which was when she was able to retrieve her immigration papers from defendants then unlocked office file cabinet and she stopped going there. In January 2004, after the victim learned that defendant had been arrested, she told both Robert and the police the date the assaults really stopped. When the victim went to Samoa to get married in July 2004, she also told her mother all about the extent of defendants sexual assaults. Robert has filed a lawsuit against defendant, seeking to recover the medical expenses associated with defendants abuse of the victim.

Santa Clara Police Officer Dan Moreno recorded a telephone call the victim made to defendant in November 2003. During the call, defendant said that he knows that having sex with the victim was wrong, and that her having the abortion was the right thing to do because were not supposed to . . . have a child like that.[3]

Officer Moreno interviewed defendant in December 2003. During the interview, defendant said that he knew when he left Samoa that his girlfriend was pregnant, that the victim is his daughter, and that he brought the victim here from Samoa in 1995 before she was 18. He stated that he and the victim had a sexual relationship for approximately three years, starting around 97 or 98. The first sexual contact occurred when they were in his office. The victim asked him to check her breasts for breast cancer. He did, they started kissing, and she asked him to make love to her. He refused to do so at that time. Later that night she asked him again while they were in his car after he picked her up from school. He drove to the parking lot behind a store, and they made love in the car. He and the victim continued to have sex two or three times a week for almost three years, until she met uh, a guy named David. She got pregnant probably 98 or 99, and he took her to get an abortion. Defendant also stated that he never forced the victim to have sex with him, that it was a consensual relationship, that she had recently called him and accused him of raping her, and that she is a pathetic liar.

Defendant later gave Officer Moreno a copy of a letter a former boyfriend in Samoa sent to the victim in 1999 that defendant had intercepted. Defendant claimed the letter would show that the victim was fabricating all these things.

The Defense Case

Fred Mulipola has a leadership position in defendants church and knows defendant and the victim socially. Defendant always refers to the victim as his daughter. Once, Mulipolas wife received a letter that included false accusations about her. Mulipola took the letter to a church official. At first, the victim denied that she was involved in the writing of the letter, but she later admitted her involvement. In Mulipolas opinion, the victim is inconsistent in telling the truth and is dishonest; he would not trust her.

Rosita Tulua knows defendant and is the victims good friend. In Tuluas opinion, the victim is honest sometimes, and is not sometimes. The victim has a reputation in the Samoan community for not being a very truthful person.

The Rebuttal

Telesia Suani has known the victim since they were children in Samoa. He renewed their friendship after he met her at a church function in 2002. In Suanis opinion, the victim is a truthful person and a nice friend.

Lionel Riley met the victim when they worked together at Trend Plastics, and has socialized with her since that time. In Rilys opinion, the victim has always been a very truthful individual.

The Jury Verdicts, Court Trial and Sentencing

On May 25, 2006, the jury found defendant guilty of the three counts of incest

( 285), but it was unable to reach a verdict on the two counts of rape ( 261, subd. (a)(2)) and the court declared a mistrial as to those two counts. On July 20, 2006, defendant waived a jury trial as to the two counts of rape with the understanding that one of the counts would be dismissed; that the matter would be submitted for a court trial; and that, if the court were to find defendant guilty of rape, he would be sentenced to the mitigated term of three years, with concurrent sentences for the three counts of incest. Pursuant to the agreement, the court reviewed the transcript of the testimony at the jury trial, as well as a letter sent by the victim to the state Labor Commission on March 13, 2004, which was admitted as defense exhibit A. After hearing argument, the court found the defendant guilty of rape as alleged in count 1, and the prosecutor dismissed count 2.

On August 2, 2006, the court denied defendants motion for new trial and sentenced defendant to the lower term of three years on the rape count, with three concurrent two-year terms for the incest counts. The court also ordered defendant to pay various fines and fees, including a court security fee of $20 pursuant to section 1465.8.

DISCUSSION

Peremptory Challenge

Defendant contends that the trial courts refusal to entertain his peremptory challenge was reversible error. In his opening brief, he concedes that his case was called on the master trial calendar on May 8, 2006; that it was assigned out for trial the following day before Judge Allegro; and that Judge Allegro denied the motion on May 10, 2006, as untimely (Code Civ. Proc., 170.6, subd. (a)(2)). However, he argues that counsel voiced his challenge to Judge Allegro to the calendar clerk as soon as counsel learned that the case had been assigned to her, and that he was following the advice of the calendar clerk by not filing the motion until May 10, 2006.

The Attorney General responds that the exclusive method by which one may seek review of an unsuccessful peremptory challenge is to file a writ, and that defendants claim is not reviewable on appeal. (People v. Webb (1993) 6 Cal.4th 494, 522-523; People v. Panah (2005) 35 Cal.4th 395, 444; Code Civ. Proc., 170.3, subd. (d).) In his reply brief, defendant argues that this court should reach the issue because the California Supreme Court has recognized that, notwithstanding the provisions of that section, a defendant may assert on appeal a claim of denial of the due process right to an impartial judge. (People v. Mayfield (1997) 14 Cal.4th 668, 811.) However, defendant does not claim on appeal that the trial judge was not impartial. He claims that the trial judge improperly denied his peremptory challenge. We agree with the Attorney General that defendants claim is not reviewable here. (Code Civ. Proc., 170.3, subd. (d).)

Statute of Limitations

Defendant contends that his convictions for rape as alleged in count 1 and for incest as alleged in count 3 of the amended information are barred by the statute of limitations. He argues that, although the amended information did not show on its face that the rape allegation in count 1 was time barred, the prosecution chose to rely on the 1996 car incident, so the six-year limitations period had run prior to the filing of the amended information. He further argues that the amended information did show on its face that the incest alleged in count 3 was time barred.

The Attorney General argues that defendant is estopped to raise his statute-of-limitations claim on the rape count by his negotiated disposition on that count. The Attorney General further argues the limitations period for the incest count was tolled by the issuance of defendants arrest warrant, and that any error in failing to plead this tolling event was harmless.

Incest, Count 3

Section 804 states that prosecution for an offense is commenced when any of the following occurs: [] (a) An indictment or information is filed. [] . . . [] (d) An arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint. Both the original information and the amended information included three counts of incest ( 285), alleging that the offenses variously occurred between September 26, 2000, and June 30, 2003. Count 9 of the original information and count 3 of the amended information specifically alleged that an act of incest occurred between September 26, 2000, and September 25, 2001. The statute of limitations for incest is three years. ( 801.) As the original information was filed on November 12, 2004, the information indicated on its face that the charge as alleged in count 9 of that information and count 3 of the amended information was time-barred.

In People v.Williams (1999) 21 Cal.4th 335, an information charging the defendant with one felony count indicated on its face that the charge was barred by the statute of limitations. Following the defendants conviction by court trial, the defendant argued for the first time on appeal that the prosecution was time-barred because the information contained no facts or tolling allegations that would make the prosecution timely. The Attorney General argued that the defendant was too late in asserting that claim. (Id. at p. 338.) Our Supreme Court held that a defendant may not inadvertently forfeit the statute of limitations and be convicted of a time-barred charged offense. (Ibid.) [I]f the charging document indicates on its face that the charge is untimely, absent an express waiver, a defendant convicted of that charge may raise the statute of limitations at any time. (Ibid.) [W]here the pleading of the state shows that the period of the statute of limitations has run, and nothing is alleged to take the case out of the statute, for example, that the defendant has been absent from the state, the power to proceed in the case is gone. [Citation.] (Id. at p. 344.)

The Williams court stated that the Attorney General had also argued before it that

principles of due process are violated when a conviction is vacated based on a ground to which the People have no opportunity to respond. (Id. at p. 345.) The court responded that the district attorney could easily have alleged in the information either that an arrest warrant issued before the time period had expired, or that the action was filed timely after discovery of the crime, or both (assuming either allegation is factually supported). The silent record is partly the defendants fault for not raising the issue at trial. It was, however, the prosecutions fault in the first instance for filing an information that, on its face, was untimely. In that situation, the fairest solution is to remand the matter to determine whether the action is, in fact, timely. (Ibid.) If the instant action is, in fact, time-barred and should have been dismissed long ago, defendant has not gained by his delay in asserting the claim. Similarly, if on remand, the trial court determines the action is not time-barred, the conviction will stand despite the prosecutions error in filing an information that appeared time-barredagain, resulting in no benefit to defendant. (Id. at p. 346.)

In this case, the Attorney General contends that the incest allegation in count 3 of the amended information is not barred by the statute of limitations because an arrest warrant issued in January 2004, before the three-year time period expired. Unlike in Williams, the record on appeal in this case is not silent on this issue. The victim testified that she learned around January 2004 that defendant had been arrested in this case. In addition, this court granted the Attorney Generals unopposed motion to augment the record on appeal with a copy of defendants arrest warrant for the crime of rape, which shows that it issued on January 28, 2004. The facts clearly establish that the alleged rape of the victim was the same conduct as the alleged incest. (See People v. Bell (1996) 45 Cal.App.4th 1030, 1063-1064.) Accordingly, we find that there is no need to remand the matter to the trial court for a determination of whether the proceedings on count 3 are, in fact, timely, as the record on appeal shows that the matter is not time-barred despite the prosecutions error in filing an information that appeared time-barred.

Rape, Count 1

The original information included eight counts of rape ( 261, subd. (a)(2)), alleging that the offenses occurred between January 1, 1996, and December 31, 2003. Both count 1 and 2 of the first amended information filed September 1, 2005, alleged that defendant committed a rape between January 1, 1996, and December 31, 1998. The statute of limitations for rape is six years. ( 264, 800.) Therefore, the statute of limitations for a rape that occurred after November 12, 1998, had not run at the time the original information was filed on November 12, 2004, and the original information was not facially invalid.

The victim consistently testified that the first incident of sexual intercourse occurred in defendants car around the time of her graduation ceremony in June or July 1996, that she and defendant continued to have sexual intercourse over a number of years, and that she allowed defendant to do what he wanted to do because she was afraid defendant would carry out his threats to her. At trial, the prosecutor argued to the jury: Count 1. You can view the first time he actually raped her in the car. You have to agree what youre looking at for that. Count 2 could be the second time he did it. It could be any time he raped her in the office. It could be the time her raped her and she got pregnant. Its up to you to decide what contact you agree on; you agree amongst yourselves. [] Count 1, were relying on the first time it happened in the car. The jury deadlocked as to both rape counts and the court declared a mistrial as to those counts. Subsequently, defendant waived his right to a jury trial on the rape counts and agreed to submit the matter for a Court trial . . . based upon the evidence th[e] Court . . . already heard in conjunction with the jury trial.

After the court stated that it had reviewed the areas [of the testimony] relating to the rape charges, the court heard argument from the parties. Defense counsel argued that the evidence was insufficient to find defendant guilty of rape due to the lack of credibility of [the victim]. Counsel also argued that the victims description of the first rape in the car was, in my estimation, an impossible act to have occurred, absent her cooperation, . . . The prosecutor argued that defendants statements about what actually occurred between defendant and the victim make it very clear who was in control in this case, and that defendant did, in fact, rape [the victim]. In finding defendant guilty of rape, the court stated that it found that (1) the victim was a credible witness, (2) there was no question that sexual intercourse occurred, (3) there was no consent, and (4) there was force or fear of immediate and unlawful bodily harm. Although the court specifically stated that it found the victims testimony about the incident in defendants car to be credible, the court did not state that it was finding defendant guilty of rape based solely on that testimony.[4]

The procedure the parties agreed to, that is, submission of the rape count for decision on the transcript of the testimony presented at the prior trial, constituted a court trial on that count. Accordingly, defendant preserved his right to present argument at trial and on appeal regarding the sufficiency of the evidence and its legal significance, and to raise other appropriate issues, . . . (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 604.) Although defendant did not raise the issue of the statute of limitations in his argument to the court at the court trial, when the pleading is facially sufficient, the issue of the statute of limitations is solely an evidentiary one. (People v. Padfield (1982) 136 Cal.App.3d 218, 226 (Padfield), quoted in Williams, supra, 21 Cal.4th at p. 345.) Where it cannot be said that as a matter of law the statutory period has run, the issue is a question of fact for the trier of fact. (Padfield, supra, 136 Cal.App.3d at p. 225.) The original information in this case is facially sufficient because it merely raises a possibility that prosecution of the rape counts might be time-barred, depending upon the date on which the offenses were actually committed, but it does not show on its face that the statute of limitations necessarily ran and that the prosecution was untimely as a matter of law.

As an aspect of the presumption that judicial duty is properly performed, we presume, . . . that the court knows and applies the correct statutory and case law [citation] . . . . (People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069; see Evid. Code, 664.) In addition, [a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. . . . (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; People v. Wiley (1995) 9 Cal.4th 580, 592, fn. 7.) Here, defendant has not affirmatively shown that the trial court erroneously found defendant guilty of a rape that occurred outside the statute of limitations. The victim testified that defendant first raped her in 1996, but she also testified that they continued to have sexual intercourse at least two or three times each month after her summer 1998 abortion until May 2003. The victim also testified that she submitted to defendants continuing sexual assaults because she was afraid that if she did not do what defendant wanted to do, he would carry out his threats to her. In addition, as we previously stated, the trial court did not state that it was finding defendant guilty of rape between January 1, 1996, and December 31, 1998, as alleged in count 1, based solely on the victims testimony about the incident in the Ford Taurus. As the evidence supports a finding that defendant had forcible intercourse with the victim between November 12, 1998, and December 31, 1998 (see People v. Cortes (1999) 71 Cal.App.4th 62, 71-74), defendant has not shown that his conviction for rape is barred by the statute of limitations.

The Letter to The Victim

In ruling on the prosecutors motion in limine to exclude any evidence of the contents of the 1999 letter written to the victim by a former boyfriend, that defendant intercepted and later gave to the police, the court stated as follows:

I wanted to put on the record that I did receive, over the noon hour, a translation, this letter, from a man whos on the court list of Samoan interpreters, although my understanding is hes not actually certified.

But I had a chance to review the letter. Ive given you copies of it, and my position is that on this issue of whether [the victim] can be asked whether she lied to the police or at the prelim about the contents of the letter, which seems to suggest that she might have had a sexual relationship with the writer of the letter and that would have occurred prior to any sexual behavior with the defendant, Im going to find that that were just not going to go into that area.

No [Evidence Code section] 782 motion has ever been filed. [The victims] virginity is simply not relevant to the charges, and theres no right to examine witnesses on irrelevant matters. There is no competent evidence that she lied in the first place. The letter is hearsay. The defendant cant testify to the truthfulness of the letter.

Theres at least three different translations about the letter, and I dont know anything about the Samoan language, but they certainly do not all say the same thing.

It starts out to Dear wife, and I think theres no evidence that she was his wife, so I dont know what this means, but I just dont feel that it is competent relevant evidence.

Based on the opening statements, it appears that [the victim] gave different accounts of what took place and when. There was a lack of reporting. There are inconsistencies, therefore, in her testimony that seem to that it appears will be brought out, and so those inconsistencies, obviously, go to her credibility, and so there appear to be a number of things that will discuss her credibility, and I believe that the probative value of any question about the letter is substantially outweighed by the probability that it will create a substantial danger of undue prejudice, confusing the jury and misleading the jury, and under [Evidence Code section] 352, Im not going to allow it.

Defendant contends that he was erroneously foreclosed from properly and effectively impeaching a crucial prosecution witness and that the error denied him his constitutional rights to confrontation and due process. The Attorney General contends that defendant has failed to demonstrate that the trial court abused its discretion by excluding evidence of the contents of the letter under Evidence Code section 352.

Trial courts have the discretion to exclude otherwise admissible evidence pursuant to Evidence Code section 352 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; People v. Reeder (1978) 82 Cal.App.3d 543, 553.) As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accuseds right to present a defense. Courts retain, moreover, 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. Hall (1986) 41 Cal.3d 826, 834; People v. Cudjo (1993) 6 Cal.4th 585, 611.) A ruling excluding evidence under Evidence Code section 352 will be overturned on appeal only if the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.] (People v. Jordan (1986) 42 Cal.3d 308, 316; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 (Rodrigues).) Therefore, the question before us is whether the trial court abused its discretion in determining that the probative value of the contents of the letter was substantially outweighed by the probability that its admission would necessitate undue consumption of time or . . . create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, 352.)

Evidence Code section 782 protects rape victims from extensive questioning about their prior sexual conduct unless the defense is able to show in advance that the victims prior sexual conduct is relevant to the issue of the victims credibility. (See People v. Casas (1986) 181 Cal.App.3d 889, 895.) This court has already determined that some statements by the victim about the victims own sexual conduct may qualify as evidence of the victims prior sexual conduct. In People v. Franklin (1994) 25 Cal.App.4th 328 at pages 335-336, this court concluded that a trial court erred in excluding evidence that the minor victim of continuous sexual abuse had falsely accused her own mother of licking her genitals. We stated: Just as a prior false accusation of rape is relevant on the issue of a rape victims credibility [citation], a prior false accusation of sexual molestation is equally relevant on the issue of the molest victims credibility. (Id. at p. 335, fn. omitted.) [I]f the trier of fact found it true that [the victim] falsely stated that her mother sexually molested her, this statement would be relevant to the trier of facts determination of her credibility on defendants culpability. (Id. at p. 336.) However, in Franklin, we found the trial courts error in excluding the victims statements to be harmless because the evidence was cumulative of other evidence bearing on the victims credibility. (Id. at p. 337, but see Franklin v. Henry (9th Cir. 1997) 122 F.3d 1270 [granting habeas relief].)

Franklin makes the point that sometimes what is most relevant about a victims statement about his or her own sexual conduct is not whether the victim engaged in the activity, but whether the statement is truthful. Yet, this case is readily distinguishable from Franklin. In Franklin, the evidence of the victims false accusation could have been presented without confusing the jury or consuming an inordinate amount of time, as it was undisputed that the victims allegation was in fact false. By contrast, in this case admission of the contents of the letter to the victim would have entailed a mini-trial on whether or not any statements in the letter about the victims sexual conduct were true, which could confuse or mislead the jury. The victim herself did not make the statements, and, as the trial court found, defendant could not testify as to the truthfulness of any of the statements.

Defendant sought to use the contents of the letter to impeach the victims credibility. Ample evidence was admitted for impeachment purposes: there was evidence that the sexual contacts were consensual, that the victims husband has filed a civil lawsuit against defendant, and that the victim changed the ending date of the alleged sexual contacts to bring the case within the statute of limitations. The excluded evidence was therefore both cumulative and confusing or misleading. (Evid. Code, 352.) Accordingly, we cannot say that the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner (Rodrigues, supra, 8 Cal.4th at p. 1124) when it refused to admit evidence of the contents of the letter.

Sufficiency of the Evidence

Defendants conviction of three counts of incest was based on the allegation that defendant is the victims father. Defendant contends that the evidence adduced to prove that he is the victims father is insufficient to support the convictions. The prosecutor did not produce the victims birth certificate. She did not introduce any evidence of blood testing showing consanguinity. Nor did she introduce any evidence of genetic testing showing a blood relationship between [defendant] and [the victim]. The Attorney General argues that substantial evidence supports the convictions.

[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) An appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Reilly (1970) 3 Cal.3d 421, 425; accord People v. Pensinger (1991) 52 Cal.3d 1210, 1237.) A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence. [Citations.] (People v. Morris (1988) 46 Cal.3d 1, 21, disapproved on other points in In re Sassounian (1995) 9 Cal.4th 535, 543-545, fns. 5, 6.) A trier of fact may rely on inferences to support a conviction only if those inferences are of such substantiality that a reasonable trier of fact could determine beyond a reasonable doubt that the inferred facts are true. (People v. Raley (1992) 2 Cal.4th 870, 891.)

In order to prove the incest alleged in this case the prosecution had to prove that the defendant had sexual intercourse with the victim, and that defendant and the victim are related to each other as parent and child. (See 285; CALCRIM No. 1180.) The prosecution presented evidence that defendant admitted having sexual intercourse with the victim. It also presented evidence that defendant told the victim, Mulipola, and Officer Moreno that the victim is his daughter; that defendant knew that his girlfriend in Samoa, the victims mother, was pregnant when he left Samoa; that the victims mother told the victim that defendant is her father; that defendant offered to sponsor the victim, then got her a green card and gave it to her when he took her into his home as his daughter; and that defendant told the victim that having the abortion was the right thing to do because it was wrong for her to have his child. This evidence is sufficient to support the finding of the jury that defendant is the victims father. (See, e.g., People v. Schafer (1936) 12 Cal.App.2d 5, 6-7 (Schafer); People v. Roberts (1947) 82 Cal.App.2d 654, 655-656 (Roberts); People v. Herman (1950) 97 Cal.App.2d 272, 275 (Herman).)

In Schafer, the defendant was convicted by a jury of incest and contended on appeal that the evidence showed that the 19-year-old victim was his step-daughter, not his daughter. (Schafer, supra, 12 Cal.App.2d at pp. 6-7.) The defendant testified that the victim was his stepdaughter, but that he was married to the victims mother at the time the victim was born, and that he had raised the victim since her birth. The victim testified that the defendant was her father, and the defendant told officers shortly after his arrest that the victim was his daughter. The appellate court upheld the conviction. (Id. at p. 7.) The question was one of fact and the evidence is sufficient to sustain the verdict of the jury. (Ibid.)

In Roberts, the defendant was convicted by a jury of incest and contended on appeal that a father-daughter relationship was not proved. (Roberts, supra, 82 Cal.App.2d at p. 655.) The defendant testified that the victims mother was pregnant when they met and married, and that the victim was not his daughter. However, defendant introduced the victim to others as his daughter and addressed her by that term. He procured a life insurance policy naming the victim as his beneficiary and describing her as his daughter. He cooperated with the victim in a court procedure to secure a birth certificate naming him as her father. And, he told officers after his arrest that the victim was his daughter. (Id. at pp. 655-656.) The appellate court found that [t]here is ample evidence that the defendant and the victim are father and daughter. (Id. at p. 655.)

In Herman, the defendant was convicted of incest and contended on appeal that the evidence was insufficient to show that he was the victims father. (Herman, supra, 97 Cal.App.2d at pp. 273-274.) The defendant testified that, although he was married to the victims mother at the time of the victims birth, he had had no sexual intercourse with his wife during the period in which the victim would have been conceived. He allowed his name to be used for the victim at his wifes request. The 18-year-old victim testified at trial that she always knew defendant as her father. Two police officers and a probation officer testified that defendant told them that the victim was his daughter. The judge who presided over the victims juvenile court hearing testified that defendant told the judge that he was the victims father. (Id. at pp. 274-275.) The appellate court found that [t]he evidence was sufficient to support the finding of the jury that the defendant was the victims father. (Id. at p. 276.)

In the case before us, the uncontradicted evidence was that defendant believes the victim is his daughter, and that he presented her to his family and friends as his daughter. He also told the victim and the police that the victim is his daughter. The question of whether defendant is the victims daughter was one of fact and the evidence is sufficient to sustain the verdict of the jury. (Schafer, supra, 12 Cal.App.2d at p. 7.)

Court Security Fee

Defendant contends that the trial court erred in imposing a $20 court security fee under section 1465.8 because it violated constitutional prohibitions against retroactive and ex post facto application of statutes. The issue is currently before our Supreme Court. (People v. Alford, review granted May 10, 2006, S142508; People v. Carmichael, review granted May 10, 2006, S141415.)

Section 1465.8, which applies a $20 court security fee to every conviction for a criminal offense in order [t]o ensure and maintain adequate funding for court security, (id., subd. (a)(1)), became effective on August 17, 2003. (Stats. 2003, ch. 159, 25, 27.) The offenses in this case occurred no later than May 2003. However, the jury found defendant guilty of incest in May 2006, the court found defendant guilty of rape in July 2006, and the court imposed the court security fee in August 2006.

In People v. Wallace (2004) 120 Cal.App.4th 867, at page 870 (Wallace), Division Five of the Second District Court of Appeal concluded that consistent with the ex post facto clauses of the United States and California Constitutions, the section 1465.8, subdivision (a)(1) $20 court security fee, which was part of a budget trailer bill, may be imposed on defendants whose crimes were committed prior to its August 17, 2003, effective date. The court explained that section 1465.8 was included as part of fiscal legislation, passed to effectuate the 2003-2004 state budget. (Wallace, supra, 120 Cal.App.4th at pp. 871-873.) Because the fee was minimal and was imposed on both criminal and specified civil actions, it was imposed for a nonpunitive purpose and was without punitive effect. (Id. at pp. 875-878.) We agree with this conclusion.

We must now determine whether application of section 1465.8 in this case gave the law retroactive effect. Defendants retroactivity argument is based on section 3, which provides: No part of [the Penal Code] is retroactive, unless expressly so declared. Defendant argues that section 3 prohibits the retroactive application of section 1465.8 because section 1465.8 does not expressly make the court security fee provision retroactive. The Attorney General does not respond to defendants retroactivity argument. The appellate court in Wallace, the case on which the Attorney General relies, did not discuss the issue of retroactivity.

It is well settled that a new statute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287; People v. Grant (1999) 20 Cal.4th 150, 156-157.) If the wording of the statute is unclear, the legislative history must clearly indicate that the Legislature intended the law to be retroactive in order for it to have retroactive application. (Preston v. State Bd. of Equalization (2001) 25 Cal.4th 197, 221-222.)

The text of section 1465.8 is silent on the question of retroactivity.[5] In addition, there is no indication in the legislative history of the section that retroactivity of the statute was ever considered. Thus, although section 1465.8 is not retroactive, we must still determine whether imposition of the court security fee in this case was a retroactive application of that section.

[T]he critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statutes effective date. [Citations.] A law is not retroactive merely because some of the facts or conduct upon which its application depends came into existence prior to its enactment. [Citation.] (People v. Grant, supra, 20 Cal.4th at p. 157.) Section 1465.8 applies to every conviction for a criminal offense. Thus, the act of conviction triggered the application of the statute and the convictions in this case occurred after the statutes effective date.

In addition, if a statute imposes a disability, not to punish, but to accomplish some other legitimate purpose, it will be considered nonpenal. (People v. McVickers (1992)

4 Cal.4th 81, 85.) The court in Wallace explained that the purpose and impact of section 1465.8 are not punitive, but are intended to promote and fund court security. (Wallace, supra, 120 Cal.App.4th at pp. 877-878.) Accordingly, we find no error in the imposition of the court security fee in this case.

DISPOSITION

The judgment is affirmed.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

__________________________

Mcadams, J.

_________________________

duffy, J.

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[1] Further statutory references are to the Penal Code unless otherwise specified.

[2] Code of Civil Procedure section 170.6, subdivision (a)(2) states in relevant part: If directed to the trial of a cause where there is a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial.

[3] The following excerpts are taken from the transcript of the taped telephone call, which was admitted into evidence as Exhibit 1a.

[The Victim]: Dad, you mean you having sex with me was the right thing to do?

PEA: I didnt say it was the right thing. Did I say that?

[The Victim]: No, you didnt, you didnt say that. You know it was wrong, you

PEA: I know, it was wrong. . . .

[The Victim]: Dad, because you make me have an abortion, thats what happened.

PEA: No, I think that was the right thing to do. You think, you, you wanted to have that child.

[The Victim]: So, so it was your child, you know, that was your child, so . . .

PEA: Yeah, but

[The Victim]: What are you

PEA: Uh, yeah, that was wrong, everything there was wrong, and were not supposed to, to, to have a child like that. It was wrong, so its the right thing that we uh, get rid of that child, and everything was okay now. . . .

. . .

[The Victim]: I said, what are you sorry for for having sex with me, and get me pregnant, why?

PEA: Yeah, Im, Im sorry that that happened; uh, its just, see, you and I were very close those days, and the temptation was so strong between you and me. And I, we . . .

[The Victim]: But you knew . . .

PEA: We couldnt reject

[The Victim]: That was not right.

PEA: You know, I, we just found it now, uh, we just found uh, we are both human, things do happen, and Im not perfect. And you were so close to me, and you know how much I love you and so forth, so lets just forget about it. Im sorry that happened those days.

[4] The court stated: And the victim testified that it was a Ford Taurus. I dont consider myself an expert on automobiles. However, I dont find it incredible that what she described happening could have happened, given the room Ive observed in Ford Tauruses when Ive been in them, so I believe that the victim was credible, and I will find the defendant guilty of rape, violation of Penal Code 261(a)(2), Count 1.

[5] In relevant part, section 1465.8 states: (a)(1) To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, . . . [] (2) For purposes of this section, conviction includes the dismissal of a traffic violation on the condition that the defendant attend a court-ordered traffic violator school, . . . [] (b) This fee shall be in addition to the state penalty assessed pursuant to Section 1464 and may not be included in the base fine to calculate the state penalty assessment . . . . [] (c) When bail is deposited for an offense to which this section applies, and for which a court appearance is not necessary, the person making the deposit shall also deposit a sufficient sum to include the fee prescribed by this section.