P. v. Carter

Filed 6/22/07 P. v. Carter 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Shasta)

----

A jury convicted defendant Richard Junius Carter on 10 counts charging various sex offenses committed over a number of years against three minor girls. (Pen. Code, 261.5, subd. (c)--counts 2, 9, 11; 261.5, subd. (d)--count 7; 288, subd. (a)--count 4; 288, subd. (c)(1)--count 6; 288.2, subd. (a)--count 10; 288.5, subd. (a)--count 3; 289, subd. (h)--count 1; 289, subd. (j)--count 5; unspecified section references that follow are to the Penal Code.) The jury acquitted defendant of one charged sex offense ( 289, subd. (i)--count 8), but found true allegations that defendant used obscene material in committing counts 3 and 4 ( 1203.066, subd. (a)(9)). The trial court sentenced defendant to an aggregate prison term of 20 years 4 months.

On appeal, defendant contends that (1) the court erroneously admitted evidence of uncharged acts; (2) CALJIC No. 2.21.2 (Witness Willfully False) unconstitutionally lessens the prosecutors burden of proof; (3) cumulative error compels reversal, (4) prosecution on count 7, charging a violation of section 261.5, subdivision (d), was time-barred; (5) the court exceeded its authority in ordering defendant not to have any contact with the victims; and (6) the court violated principles enunciated in Cunningham v. California (2007) 549 U.S. ____ [166 L.Ed.2d 856] (Cunningham) in imposing the upper term on count 3.

We reverse defendants conviction on count 7 and strike the no contact/no visitation order. In all other respects, we affirm the judgment.

Facts and Proceedings

At the time of trial in 2005, A. was 19 years old and F. was 18. They testified that defendant had committed various acts of sexual abuse, ranging from touching to intercourse, for years. Defendant abused A. from the time she was seven years old until she was 17. Defendant then moved on to F., and committed similar acts on her until shortly before his arrest. During the commission of these offenses, defendant sometimes showed them pornographic magazines and movies.

Defendant also sexually abused K., a then-17-year old friend of A. and F., and in fact fathered a child with her.

The uncle of A. and F. testified that he saw defendant and A. lying together on a bed in defendants bedroom. At one point, defendant told him that before they turn 18 before they get married he would be the first one to do anything, before anybody touched the kids.

K.s brother said that A., and then F., slept in the same bed as defendant. On some mornings, he noticed hickeys on F.s neck. He saw defendant go into the bathroom with A. on some occasions and with F. on others; he assumed that they showered together because they came out of the bathroom at the same time.

In an interview with a detective after his arrest, defendant denied having sex with the victims, but said he had joked about having sex with them.

The jury convicted defendant on 10 of the charged counts, acquitted him on another similar charge, and found that defendant used obscene material in the commission of two of the offenses. The trial court sentenced defendant to an aggregate prison term of 20 years 4 months.

This appeal followed.

Discussion

I

Evidence of Uncharged Acts

At trial, the prosecutor sought to introduce evidence of uncharged acts of sexual misconduct that defendant committed on A. beginning when she was seven years old. This evidence was admitted pursuant to Evidence Code section 1108, which provides in relevant part: In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101 [prohibiting the use of character evidence to prove conduct], if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.

On appeal, defendant launches a multi-faceted challenge to the admissibility of this evidence. We address each in turn.

A. Evidence Code section 1108

First, defendant asserts that Evidence Code section 1108 violates due process and equal protection guarantees. But, as defendant recognizes, the identical due process claim was rejected by the California Supreme Court in People v. Falsetta (1999) 21 Cal.4th 903, 916-918, and we are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) And, as defendant also recognizes, this court rejected an equal protection challenge to Evidence Code section 1108 in People v. Fitch (1997) 55 Cal.App.4th 172, 184-185. (See also Falsetta, supra, at p. 918.) Defendant offers no compelling reason for reconsidering that decision.

B. Evidence Code section 352

Second, defendant contends that even if Evidence Code section 1108 is constitutional, the evidence should have been excluded under Evidence Code section 352. We disagree.

At trial, the prosecution sought to introduce testimony relating to acts of abuse that defendant committed on A. in Virginia when A. was seven years old. These uncharged incidents involved touchings, but no penetration or intercourse. Defendant did not object to this evidence under Evidence Code section 352 or under any other grounds. Nonetheless, the trial court found that the probative value of the proffered evidence outweighed any potential for prejudice or confusion, and that presentation of this evidence would not require a lengthy amount of time.

On appeal, defendant contends this ruling was erroneous. We assume for purposes of argument that these claims are preserved for appeal despite defendants failure to object in the trial court.

Defendant suggests evidence of uncharged conduct should have been excluded because the acts occurred years earlier and were therefore remote. But according to the victims testimony, defendant engaged in a continuous pattern of sexual abuse up until the time of his arrest. Under these circumstances, the prior conduct cannot be deemed remote. (See People v. Frazier (2001) 89 Cal.App.4th 30, 41.)

Defendant asserts that the uncharged events were dissimilar to the charged acts, making their probative value minimal and their potential for prejudice and confusion great. The charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in [Evidence Code] section 1108. (People v. Frazier, supra, 89 Cal.App.4th at pp. 40-41, fn. omitted.) Moreover, there was virtually no likelihood that the jury would have confused this testimony with that relating to the more serious charged offenses that continued over the succeeding years.

Defendant argues at length that this evidence was unduly prejudicial because it permitted the jury to bootstrap its way to a guilty verdict by relying on additional uncorroborated testimony by the same victim that was established only by a preponderance of the evidence. As we next discuss, however, the instructions clearly outlined the appropriate burden of proof. Contrary to defendants claim, there was no unfair bootstrapping of ultimate guilt based on uncorroborated accusations of continuing conduct from a charged victim.

In short, the trial court acted well within its discretion in concluding the probative value of the testimony outweighed any potential for prejudice or confusion. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

C. CALJIC No. 2.50.01

Defendant raises several related claims challenging CALJIC No. 2.50.01, Evidence of Other Sexual Offenses. None has merit.

CALJIC No. 2.50.01 provides in relevant part: If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that [he] was likely to commit and did commit the crime [or crimes] of which [he] is accused. []  However, if you find by a preponderance of the evidence that the defendant committed [a] prior sexual offense[s], that is not sufficient by itself to prove beyond a reasonable doubt that [he] committed the charged crime[s]. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime.

Defendant contends that this instruction permits a jury to bootstrap its way to a guilty verdict by determining by a preponderance of the evidence that defendant committed other uncharged sexual offenses with A., and then using that evidence to convict defendant of the charged offenses. Framing this contention another way, defendant asserts that CALJIC No. 2.50.01 violates due process by permitting a finding of guilt based on prior conduct found only by a preponderance of the evidence. The California Supreme Court has concluded otherwise.

In People v. Reliford (2003) 29 Cal.4th 1007, 1013 (Reliford) the court responded to similar claims by noting that the instruction nowhere tells the jury it may rest a conviction solely on the evidence of prior offenses. Instead, as the court observed, the instruction explicitly states that if you find by a preponderance of the evidence that the defendant committed a prior sexual offense . . . , that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime. (Ibid.)

The court noted that the jury was instructed to consider the instructions as a whole, was informed of the elements of each offense and was told that a conviction required proof of each element. No reasonable juror would believe those requirements could be satisfied solely by proof of uncharged offenses. (Reliford, supra, 29 Cal.4th at pp. 1013-1014.)

The court concluded: We do not find it reasonably likely a jury could interpret the instructions to authorize conviction of the charged offenses based on a lowered standard of proof. Nothing in the instructions authorized the jury to use the preponderance-of-the-evidence standard for anything other than the preliminary determination whether defendant committed a prior sexual offense . . . . The instructions instead explained that, in all other respects, the People had the burden of proving defendant guilty beyond a reasonable doubt. [Citations.] Any other reading would have rendered the reference to reasonable doubt a nullity. In addition, the jury was told that circumstantial evidence could support a finding of guilt of the charged offenses only if the proved circumstances could not be reconciled with any other rational conclusion [citation]--which is merely another way of restating the reasonable-doubt standard. [Citation.] The jury thus would have understood that a conviction that relied on inferences to be drawn from defendants prior offense would have to be proved beyond a reasonable doubt. (Reliford, supra, 29 Cal.4th at p. 1016.)

Finally, the court noted that the last sentence of CALJIC No. 2.50.01 reinforces these standards by providing additional guidance on the use of other-acts evidence and reminding the jury that the reasonable doubt standard must be met for conviction. (Reliford, supra, 29 Cal.4th at p. 1016.)

Reliford effectively disposes of defendants claims. Defendants fears about bootstrapped convictions are groundless. Defendant was free to attack A.s credibility in her description of either the charged or uncharged acts. As the courts instructions made clear, a verdict of guilty could be returned only if the prosecutor met its burden of proving its case beyond a reasonable doubt.

Finally, defendant suggests that CALJIC No. 2.50.01 engenders confusion and violates due process by referencing two different standards of proof. This claim, too, was rejected in Reliford: This is not the first time jurors have been asked to apply a different standard of proof to a predicate fact or finding in a criminal trial. [Citations.] As we do in each of those circumstances, we will presume here that jurors can grasp their duty--as stated in the instructions--to apply the preponderance-of-the-evidence standard to the preliminary fact identified in the instruction and to apply the reasonable-doubt standard for all other determinations. (Reliford, supra, 29 Cal.4th at p. 1016.)

Defendants challenge to CALJIC No. 2.50.01 is unavailing.

II

CALJIC No. 2.21.2

The trial court instructed the jury pursuant to CALJIC No. 2.21.2 (Witness Willfully False), which provides: A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars. (Italics added.)

On appeal, defendant asserts that this reference to the probability of truth lessened the prosecutors burden of proof by permitting the jury to resolve credibility questions involving prosecution witnesses under a preponderance standard. But as defendant recognizes, the California Supreme Court has repeatedly rejected the identical contention, concluding that the given instructions, taken as a whole, properly explain the reasonable doubt standard. (E.g., People v. Nakahara (2003) 30 Cal.4th 705, 714; People v. Hillhouse (2002) 27 Cal.4th 469, 493; People v. Riel (2000) 22 Cal.4th 1153, 1200.) We are bound by these decisions. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)

III

Cumulative Error

Defendant contends that the cumulative effect of the courts errors compels reversal. Our conclusion that no error occurred necessarily disposes of defendants claim.

IV

Count 7 and the Statute of Limitations

Defendant contends, and the People concede, that prosecution on count 7 was barred by the statute of limitations. They are correct.

Count 7 charged that, between February 6, 2000 and February 5, 2002, defendant committed an act of unlawful sexual intercourse with A., a minor under 16 years of age. ( 261.5, subd. (d).)

Section 801 requires that prosecution for an offense punishable by imprisonment in the state prison shall be commenced within three years after commission of the offense. This deadline meant that prosecution on count 7 had to be commenced by February 5, 2005.

As relevant here, prosecution of an offense begins when an information is filed or an arrest warrant issued. ( 804.) Defendant was not arrested until June 2005 and an information was not filed until July 2005, months after the statute of limitations had expired. No tolling provisions extended this period of time. Under these circumstances, defendants conviction on count 7 must be reversed, resulting in a one-year reduction in his sentence.

V

Order Prohibiting Contact Between Defendant and the Victims

At the sentencing hearing, the prosecution asked the court for a no visitation order with all three victims. The court asked whether such an order was appropriate given that the victims were no longer minors, and the prosecutor replied that it was. The court ordered defendant not to have any contact with [the victims]. The abstract of judgment indicates that defendant is to have no contact with or visitation with the victims.

On appeal, defendant contends the court exceeded its authority in ordering no contact with the victims. He suggests that this portion of the judgment be stricken, leaving the no visitation order in effect. We conclude that neither the no contact order nor the no visitation order can stand because neither provision is authorized by statute.

Initially, we note that defendants failure to object to this order is not fatal to his claim on appeal. (See generally People v. Scott (1994) 9 Cal.4th 331, 354.) Courts have recognized a narrow exception to the waiver rule for unauthorized sentences or sentences entered in excess of jurisdiction. [Citation.] Because these sentences could not lawfully be imposed under any circumstances in the particular case [citation], they are reviewable regardless of whether an objection or argument was raised in the trial and/or reviewing court. [Citation.] We deemed appellate intervention appropriate in these cases because the errors presented pure questions of law [citation], and were clear and correctable independent of any factual issues presented by the record at sentencing. [Citation.] In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable. (People v. Smith (2001) 24 Cal.4th 849, 852.)

Because defendants claim on appeal is that the courts order is unauthorized, the claim is properly before us despite the lack of objection. And, we conclude this claim is meritorious.

Had defendant been placed on probation and not given a prison sentence, a no contact order would have been appropriate. Section 1203.1, subdivision (i)(2) specifically provides that [u]pon conviction of any sex offense subjecting the defendant to the registration requirements of Section 290, the court may order as a condition of probation, at the request of the victim or in the courts discretion, that the defendant stay away from the victim and the victims residence or place of employment, and that the defendant have no contact with the victim in person, by telephone or electronic means, or by mail. (See also 1203.02, subd. (j) [authorizing the imposition of other reasonable conditions of probation].)

Similarly, a no contact order may be imposed when a defendant is released on parole. ( 3053.6.)

But no statutory provisions authorize a no contact order when a defendant is sentenced to prison. It is the Department of Corrections and Rehabilitation, not the trial court, that must control an inmates conduct in prison. Without statutory authorization to impose a no contact order, there was no legal basis for the courts order, and it must be stricken.

Although defendant suggests that the no visitation order reflected in the abstract of judgment can remain in force, we conclude otherwise. Statutory authority for a no visitation order is found in section 1202.05, subdivision (a), which provides that whenever an individual is convicted of certain specified crimes and the victim of one or more of those offenses is a child under the age of 18 years, the court shall prohibit all visitation between the defendant and the child victim. (Italics added.) If a parent, guardian, or child objects to the order, he or she may request a hearing. ( 1202.05, subd. (a).)

Under this provision, a no visitation order is authorized only when the victim is under 18 years old. The three victims here were older. At the time of trial, A. was 19 years old, and F. and K. were 18. Because the victims were no longer minors, section 1202.05 is inapplicable and the trial court did not have the statutory authority to impose a no visitation order. That order too must be stricken.

VI

Alleged Cunningham Error

Citing Cunningham, defendant contends that the imposition of the upper term violated his right to jury trial on the aggravating factors used to support his sentence. There was no error.

In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), the Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jurys verdict or admitted by the defendant. Thus, when a sentencing courts authority to impose an enhanced sentence depends upon additional factual findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely v. Washington(2004) 542 U.S. 296, 303-305 [159 L.Ed.2d 403, 413-414] (Blakely).)

In Cunningham, the Supreme Court held that by assign[ing] to the trial judge, not the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (549 U.S. at p. ____ [166 L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238 on this point, vacated in Black v. California (Feb. 20, 2007) ___ U.S. ___ [167 L.Ed.2d 36].)

At the sentencing hearing, the court and counsel engaged in a lengthy discussion of possible aggravating factors that might constitutionally permit the imposition of an upper term sentence. They discussed the vulnerability of the victim, defendants prior record, and defendants use of obscene material in the commission of some of these offenses.

The trial court ultimately decided to impose the upper term of 16 years on count 3, noting: With respect to the principle term, I do find that as to count 3, continuous sexual abuse, 288.5, in weighing the aggravating versus the single mitigating factor, which actually isnt borne out by the evidence that his prior performance on probation or parole was satisfactory. It was satisfactory in that he didnt--he wasnt ever violated, apparently, but he was committing felonies on his daughter [A.], during the period of time that he was on probation.

But this--the most significant to me is the 1170.71, use of obscene material in the commission of lewd and lascivious acts upon [A.], is found by the jury to be true in count 4, although stayed for--Im going to be dismissing them in a moment, but in considering the fact that you were on probation and you had served prior prison terms, you have numerous prior convictions, the court does find that the aggravating factors certainly outweigh the single mitigating, even if its there, and I impose the aggravating term of sixteen years as to count 3.

The courts sentence does not implicate Cunningham. The primary factor relied upon the court in selecting the upper term was defendants use of obscene material. That was a special finding made by the jury, not a finding by the court.

Similarly, Cunningham issues were not raised by the courts reliance on defendants prior convictions and prior prison terms. The prior conviction exception applies not only to the fact of a prior conviction, but also to issues of recidivism, unrelated to the charged offense and verifiable by a review of court records. (People v. Thomas (2001) 91 Cal.App.4th 212, 216-223.)

In short, the sentence imposed did not violate defendants constitutional right to jury trial.

Disposition

Defendants conviction on count 7 is reversed, and the trial courts order of no visitation/no contact between defendant and the victims is stricken. In all other respects, the judgment is affirmed. The trial court is ordered to prepare

an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.

HULL, J.

We concur:

SCOTLAND, P.J.

BLEASE , J.

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