P. v. Sullivan

 

 

 

 

 

 

 

 

 

Filed 11/19/13  P. v. Sullivan CA3

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Sacramento)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   CORTEZ JOHN SULLIVAN,                           Defendant and Appellant.

C069674   (Super. Ct. No. 10F02474)

 

 

 

 

            A jury
convicted defendant Cortez John Sullivan of lewd and lascivious conduct upon a
child under the age of 14 years (Pen. Code, § 288, subd. (a)).  The trial court sentenced defendant to href="http://www.mcmillanlaw.com/">state prison for the upper term of eight
years. 

            Defendant
appeals.  He contends the trial court abused
its discretion in admitting evidence of a prior incident of molesting children
and in allowing the prosecution to reopen to present this evidence just prior
to closing argument.  We affirm the judgment.

FACTS

            On January 1, 2010, approximately 20
adults and 15 to 20 children attended a party at the A. home.  Ten-year-old R.A., who lived in the home, saw
the five-year-old victim, D.F., enter the upstairs master bedroom walk-in
closet and defendant followed her.  The
lights went out.  R.A. heard defendant
tell the victim to “come here” and the victim ask, “What are you doing?”  R.A. went downstairs and spoke with Jamie B.,
who also lived in the home. 

            Jamie B.
went upstairs to retrieve some baby wipes for her daughter and saw the victim
in the master bedroom.  The victim was
looking towards the master bathroom, biting her nail.  The bathroom light was on.  Jamie B. watched the victim walk towards the
bathroom, disappearing from Jamie B.’s view, and the light went out.  After pausing briefly, Jamie B. went into the
master bedroom, turned the corner, and saw defendant and the victim, both
facing Jamie B.  Defendant was standing
over the victim who was “jammed up” in front of him.  Defendant’s hands were near the victim’s
pants, by the zipper and button area.  Jamie
B. yelled at defendant, “What the f--- are you doing?”  Defendant’s hands “flew up” and “he started
rambling about something.”  Jamie B. took
the victim to another room where others were present and Jamie B. told them
what she had seen.  Defendant entered the
room and denied it, accusing Jamie B. of lying. 
Defendant explained that he had told the children to stay out of the
bedroom.  He also told them to stop
playing in the closet and to go watch television instead.  Jamie B. explained that there were no other
children in the master bedroom when she walked in. 

            Jamie B.,
Tanya A. (the mother of Jamie B.’s boyfriend), and the victim went downstairs
to another room and closed the door.  Tanya
A. asked the victim about the incident. 
The victim explained that something had happened and that defendant had
said something to her.  That same night, the
victim told a deputy sheriff that defendant had touched her private area. 

            At trial,
the victim testified that a man (defendant) stood behind her and put his hands in
her pants, touching her private area and told her, “Someday I want to lick
it.”  The victim stated that Jamie B.
caught defendant.  Two-and-a-half weeks
after the incident, an interviewer questioned the victim and a DVD of the
interview was played for the jury.  The
victim had given the same story as she related at trial. 

            The defense
called the following witnesses:

            An
investigator testified about some discrepancies in the statements of
prosecution witness R.A. 

            Robert
Crawford, who had known defendant for more than 10 years, was upstairs during
the party shooting pool with defendant. 
Crawford claimed that defendant never went into the bedroom.  Crawford admitted that he had been convicted
of crimes of moral turpitude. 

            Tanya A.,
who had been good friends with defendant’s mother, spoke with the victim in the
evening of the party and the victim did not say anything about defendant
touching her.  Tanya A. claimed she was
in a daze about what happened and that everything was “really foggy.” 

            T.E., the
victim’s caretaker, spoke to the victim and the victim gave the >exact same story to the police.  On cross-examination, T.E. explained that she
and her sisters confronted defendant and hit him.  He responded by saying that he “didn’t mean
to.” 

            A psychiatrist
testified about child memory which may be influenced by the questioner, whether
an authority figure or someone the child trusts.  Also, leading questions, questions containing
verbal and nonverbal cues, and the timing of the interview may influence the
child’s answers. 

            After the
defense case, the prosecutor was allowed to reopen and present evidence of a
prior incident of molest.  Early one
morning in 1997, defendant entered a bedroom that 13-year-old E.W. shared with her
sister, 12-year-old C.W., in the home of defendant’s mother.  Defendant put his hand under the covers and
started touching C.W. on her foot, then her leg, and eventually her inner
thigh.  C.W. repositioned herself and
defendant stopped.  Defendant then tried
to pull the covers off of E.W. while he rubbed and fondled her.  He touched her thighs and tried to touch her
breasts.  E.W. told defendant to
stop.  He did not.  She could not recall at trial whether he put
his hands up her shorts toward her private area.  When E.W. went to another room and tried to
wake up defendant’s mother, defendant hit E.W. three or four times in the chest
and poked her in the eye.  E.W. and C.W.
reported the incident to the police that same day. 

DISCUSSION

I

            Defendant
first contends that the trial court abused its discretion in admitting the
evidence of the prior incident, arguing it had little probative value in that
it was not similar to the charged offense, was remote in time, and was more
inflammatory than the charged offense. 
Defendant contends the error was prejudicial, requiring reversal.  We conclude that the trial court did not
abuse its discretion.

Background

            Prior to
trial, the People sought to admit evidence of the 1997 incident involving E.W.
and C.W. pursuant to Evidence Code sections 1108 (to show propensity) and 1101,
subdivision (b) (to show specific intent and lack of mistake).  Defense counsel objected, arguing the lack of
a position of trust and force allegations in the present case, the prior
conduct evidence was inflammatory in that it was nearly an attempted rape,
involving very aggressive behavior and a battery, was remote (14 years),
involved undue consumption of time in view of a possible continuance to
investigate further, had little probative value, noting the difference in the
ages of the victims and defendant, and a potential witness, defendant’s mother,
was deceased.  Defense counsel argued
that the evidence should be excluded under Evidence Code section 352 because
the probative value was substantially outweighed by the prejudicial effect,
claiming the prior conduct evidence was more serious than the present
offense. 

            After a
thorough on-the-record analysis, the trial court admitted the evidence of the
prior incident under Evidence Code sections 352, 1108, and 1101, subdivision
(b).  The trial court stated that the
prior conduct evidence had great probative value since the victim’s credibility
was at issue.  The court found that the
incidents were “remarkably similar” in that both incidents involved “children
of friends,” defendant “had access to the victims through his friendship with
family members and friends,” both incidents “occurred in a bedroom where the
victims were separated from other persons in the home,” both incidents
“involved a touching or attempted touching of female victims under the age [of]
14,” and both incidents “involved the touching or attempted touching of the
vaginal area.”  The court found that the
alleged prior conduct was less inflammatory than the conduct alleged in the
present case, noting the age of the victims in the prior incident “versus the
age of five in the current case” and that defendant purportedly stated to the
current victim that he wanted to perform oral sex on her.  The court stated that the jury would be
instructed on the limited use of the propensity evidence.  The court concluded that there would be no
undue consumption of time since only two witnesses would be called to
testify.  The court would not advise the
jury of the outcome of the prior case (unless defense so requested) so that the
jury would not punish defendant for the prior unpunished conduct.  The court concluded that the prior offense
evidence was not remote in time, citing several cases.  In conducting the weighing process under
Evidence Code section 352, the court stated that “prejudicial” evidence is
“evidence which uniquely tends to evoke an emotional bias against the defendant
as an individual and which has very little effect on the issues.”  In admitting the evidence under Evidence Code
section 1101, subdivision (b), to show intent and absence of mistake or
accident, the court repeated several factors it had already mentioned.  In addition, the court referred to the
People’s motion which recited the evidence in the current case when Jamie B.
saw defendant with the victim, defendant “jumped up and started talking about
kids and television,” and that “someone said to get the children out of the
room.” 

Analysis

            Defendant
contends the trial court abused its discretion in admitting the evidence of the
prior incident since it was remote, involved a different class of victim, and
was more inflammatory than the current offense. 
We find no abuse.  We thus need
not discuss prejudice.

            Except as
otherwise provided in Evidence Code sections 1101, 1102, 1103, 1108, and 1109, character
evidence to “prove . . . conduct on a specified occasion” is inadmissible.  (Evid. Code, § 1101, subd. (a).)  Conduct evidence, however, may be admissible
to prove some fact such as intent or absence of mistake.  (Evid. Code, § 1101, subd. (b).)  â€œEvidence of intent is admissible to prove
that, if the defendant committed the act alleged, he or she did so with the
intent that comprises an element of the charged offense.  â€˜In proving intent, the act is conceded or
assumed; what is sought is the state of mind that accompanied it.’  [Citation.]”  (People
v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2, italics omitted.)  The defendant’s intent was at issue because
he pleaded not guilty to committing a lewd act upon the victim, a specific
intent offense.  (Id. at p. 400, fn. 4; People
v. Daniels (1991) 52 Cal.3d 815, 857-858.) 
Under Evidence Code section 1108, propensity evidence is admissible in
specified sex offense cases including a criminal action charging the defendant
with lewd conduct under Penal Code section 288. 
(People v. Falsetta (1999) 21
Cal.4th 903, 910-922.) 

            Evidence
Code section 352 provides: “The court in its discretion may exclude 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.”

            “[T]he
probative value of ‘other crimes’ evidence is increased by the relative
similarity between the charged and uncharged offenses, the close proximity in
time of the offenses, and the independent sources of evidence (the victims) in
each offense. [Citation.]  . . .  [T]he prejudicial impact of the evidence is
reduced if the uncharged offenses resulted in actual convictions and a prison
term, ensuring that the jury would not be tempted to convict the defendant
simply to punish him for the other offenses, and that the jury’s attention
would not be diverted by having to make a separate determination whether
defendant committed the other offenses.  [Citation.]”  (People
v. Falsetta, supra, 21
Cal.4th at p. 917, italics omitted.)  “[W]hen
ruling on a[n] [Evidence Code] section 352 motion, a trial court need not
expressly weigh prejudice against probative value, or even expressly state it
has done so.  All that is required is
that the record demonstrate the trial court understood and fulfilled its
responsibilities under Evidence Code section 352.  [Citation.]”  (People v. Williams (1997) 16 Cal.4th
153, 213.) 

            We will not
disturb a trial court’s ruling to admit evidence under Evidence Code section
352 unless defendant shows that the trial court abused its discretion, that is,
“the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest href="http://www.mcmillanlaw.com/">miscarriage of justice.”  (People v. Rodriguez (1999) 20 Cal.4th
1, 9-10.)

            We conclude
the trial court did not abuse its discretion under Evidence Code section 352 in
admitting the evidence of the prior incident of molest.  The record reflects that the trial court
properly analyzed the evidence and the authority for admission for the same,
weighing the probative value and prejudicial effect.  The trial court’s comments were more than
sufficient to show that it understood the balancing required under Evidence
Code section 352.

            In the
prior incident, defendant molested two girls, ages 12 and 13 years old, in the
bedroom they shared in his mother’s home. 
In the current offense, defendant molested a five-year-old girl in the
upstairs bedroom of a home in which he was an invited guest.  Defendant attempted to touch (prior incident)
and touched (current case) the girls’ vaginas when they were vulnerable and
isolated from others.  Defendant had
access to the girls through family/friends. 
The age difference between the girls is not that great.  (See People
v. Escudero (2010) 183 Cal.App.4th 302, 306 [“persons with deviant sexual
urges do not always limit their sex crimes to victims of the same age group”].)  Here, all the girls were under the age of 14
years.  The offenses were sufficiently
similar.

            Having
occurred in 1997, about 14 years prior to the current offense, the prior
incident was not remote, considering the significant similarities between the
prior incident and the current offense. 
(People v. Branch (2001) 91
Cal.App.4th 274, 277-279, 284-285 [30 years not remote]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [20 years not
remote].)

            The prior
incident was no more inflammatory than the current offense which involved a
much younger girl who defendant wanted to orally copulate, having told her so. Although
defendant had not been convicted of any offense stemming from the prior
incident, the jury was not told of the disposition of the charges.  The charges had been dismissed but, as
defense counsel conceded, a parole violation had been found in lieu of the
charges going forward.  Defendant’s current
act of “jamming” the victim up against him to commit his lewd conduct was as
aggressive as his prior act of punching E.W. after she escaped his lewd
conduct, especially considering the victims’ respective ages.

            The
evidence of the prior incident was probative of defendant’s intent and absence
of mistake and his propensity.  Moreover,
the trial court gave limiting instructions on the purpose of the evidence of
the prior incident.  There is no evidence
the jury punished defendant for the prior incident.  We find no abuse of discretion in admitting
the evidence of the prior incident.  Finding
no error, defendant’s due process claim has no merit.  (People
v. Partida (2005) 37 Cal.4th 428, 436.) 


II

            Defendant
contends the trial court abused its discretion in allowing the prosecution to
reopen their case to introduce the prior conduct evidence just prior to closing
arguments, rendering the trial unfair. 
We disagree.

Background

            When the defense rested, defense counsel noted that he
may have a witness to impeach the prosecutor’s “two 1108 witnesses.”  The prosecutor then moved to reopen her case,
noting that both C.W. and E.W. were present to testify.  Defense counsel objected, claiming that the
prosecutor had already closed her case and the witnesses “weren’t available
this morning, and we moved on with defense witnesses.”  The prosecutor responded that in obtaining
the presence of C.W. and E.W., there had been difficulties about which the
court and defense counsel had been advised throughout the trial including the
fact that E.W. was pregnant and about to deliver at any moment, had lost her home
and was between residences, and that C.W. lived in Oakland.  Before the first defense witness, the
prosecutor noted her last witness, a detective, had called and learned that
E.W. and C.W. were on their way and that she (the prosecutor) had informed the
court and defense counsel at a sidebar.  Citing
case law and statutes, the prosecutor argued that the court had broad
discretion to allow her to reopen. 

            Citing
Evidence Code section 320, the court determined that the prosecution would be
allowed to reopen its case, finding that the court and parties had a good faith
belief the witnesses would testify in that there were pretrial rulings
concerning their testimony, the witnesses had initially been cooperative, and
that they were under subpoena to be present that morning.  The court stated that it was the court’s
understanding as well as defense counsel’s at all times that the witnesses
would testify.  The court found that the
prosecutor had been extremely diligent in obtaining the witnesses’ presence and
that the court had been lenient with both parties, noting that the court had
waited for defense witnesses.  The court
stated that it would grant defense counsel time to present rebuttal if so
requested.  The court also stated its
plan to instruct the jury on the limited nature of the witnesses’ testimony. 

Analysis

            Under Evidence Code section 320href="#_ftn1" name="_ftnref1" title="">[1]
and Penal Code sections 1044href="#_ftn2"
name="_ftnref2" title="">[2],
1093href="#_ftn3" name="_ftnref3" title="">[3]
and 1094href="#_ftn4" name="_ftnref4" title="">[4],
the trial court has inherent and statutory discretion to control the
proceedings to ensure the efficacious administration of justice.  A trial court has broad discretion to allow a
party to reopen to present additional evidence. 
(People v. Cuccia (2002) 97
Cal.App.4th 785, 792-793.)  In
determining whether to grant a request to reopen, the trial court considers the
stage of the proceedings, the party’s diligence, the risk the jury would give
undue emphasis to the new evidence, and the significance of the evidence.  (People
v. Jones (2003) 30 Cal.4th 1084, 1110.)

            The
credibility of the victim was at issue and the significance of the propensity
evidence was thus substantial, despite the People’s argument.  The prosecutor explained her efforts in
obtaining the witnesses and the court found that the prosecutor had been
diligent.  Defense counsel had been
apprised prior to trial that propensity evidence would be introduced and he had
been advised on the status of the witnesses and their availability throughout
the trial.  The court stated it would
grant a continuance for rebuttal in the event defense so requested and noted
that it had been lenient for tardy defense witnesses.  The court gave the limiting instruction on the
new evidence.  Defendant has failed to
demonstrate that the trial court abused its discretion in allowing the
prosecutor to reopen and introduce the propensity
evidence after the defense case.

DISPOSITION

            The judgment is affirmed.

 

 

 

                                                                                              NICHOLSON              , J.

 

 

 

We concur:

 

 

 

          RAYE                           , P. J.

 

 

 

          BLEASE                       , J.