P. v. Luna

Filed 6/22/07 P. v. Luna CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, James A. Stotler, Judge. Affirmed.

Terrence Verson Scott, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald A. Jakob and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Cesar Luna of two counts of lewd and lascivious acts on a child under the age of 14 (Pen. Code,  288, subd. (a)). He argues the court erred in instructing on child sexual abuse accommodation syndrome and made several errors relating to a prior military court-martial conviction that furnished the basis to double his sentence under the Three Strikes law. For the reasons expressed below, we affirm.

I

Factual And Procedural Background

In December 2003, 13-year-old C. lived with her father and paternal grandparents. Defendant, her paternal uncle, lived in the home intermittently. On a December evening before Christmas, C. locked her bedroom door with a chain lock before going to bed around 9:00 or 10:00 p.m. Around 2 a.m., she heard the door chain rattle and what sounded like someone crying, and saw a flashlight beam through the door crack. She opened the door and saw defendant, who declared her father had not come home yet, and then walked into her room. She moved between the two beds in her room. Defendant sat on one of the beds and asked if she knew where her father had gone. He stood up, approached and touched her right breast with his left hand. He rubbed for about a minute and then moved his hand to her crotch area, touching her over her sweat pants. He rubbed the area for about a minute. Neither spoke. C. testified she was frightened and in shock. Hearing C.s father return home, defendant swiftly closed the bedroom door. C. did not cry out. Her strict father had a short temper and she feared he would be angry with her and might start a fight. Defendant said he wanted to give C. a massage and told her to lie down on the bed. She complied, afraid he might turn violent if she refused. She laid on her stomach and defendant massaged her back while rubbing his erect penis on her bottom. This lasted 5-10 minutes. Defendant said he dropped something and got up. After an unsuccessful search, he left the room. C. later found a glass pipe on the floor.

Defendant left the residence but returned two nights later. C. awakened to find him standing over her. Defendant apologized for his conduct. She did not report the incident and continued to act normally around defendant when he visited. C. did not see defendant for about six months. In May 2005, some 17 months after the incident, she learned defendant soon would return to reside in her home. Afraid defendant might molest her again, C. walked to her mothers home to report the abuse.

The prosecution also introduced evidence defendant committed a prior sex offense. In January 1998, Cristy R., a 19-year-old Army private stationed in Georgia, accompanied her boyfriend to an off-base cabin for the evening. A group of visitors, including defendant, arrived at the cabin, and the group drank and talked late into the night. Cristy and her boyfriend retired to the bedroom while a couple of the visitors remained. Cristy awakened when she felt someone touching her. Defendant had burrowed under the sheet and placed his tongue and fingers on her vagina. Cristys boyfriend confronted defendant, and during the argument defendant admitted he molested Cristy, but said that no one could prove it.

Clinical and forensic psychologist Veronica Thomas testified concerning child sexual abuse accommodation syndrome (CSAAS). She described CSAAS as a treatment tool used to help understand the complicated emotional factors affecting child victims of sexual abuse. Researchers had observed recurring behaviors in victims who had suffered ongoing sexual abuse by biological fathers. These behaviors differed from those displayed in cases involving strangers. She also explained delayed disclosure of the abuse is a common occurrence.

Defendant testified he entered C.s room at 1:00 a.m. to discuss their deteriorating relationship and the problems she was having with her parents. He also wanted to know what perception the family had of him, whether his prior sexual offense had caused tensions in the family, and whether her parents had mentioned his military career.

He asked why she was doing poorly in school, but C. did not have much to say. When she moved toward the door, he asked her to wait. She explained her nervousness by stating that both her parents had been molested. He said he knew and told her not to worry. He told her not to mention his visit to anyone, and left the room. He feared that C. might have misinterpreted his earlier hug as an attempt to molest her. He decided that showing C. photographs of herself as a younger child could remedy matters. He returned to C.s room and asked her to accompany him to the game room to look at family photos. C. agreed, but ran back into her bedroom and closed the door when she heard noises from her grandparents room. He waited in the game room for about 15 minutes, then returned to her room. Seconds later, they heard C.s father arrive. Knowing Cs father would not approve of his nighttime visits, defendant sat quietly on C.s bed until her father went to his room. After repeated requests to leave, defendant departed. He denied touching C.s breasts or vagina. Defendant admitted the 1998 incident, claiming he was intoxicated at the time of the offense.

II

Discussion

A. CALCRIM No. 1193

CALCRIM No. 1193 is a cautionary instruction warning jurors they must not consider CSAAS as evidence defendant committed the offense, and that they may consider CSAAS only for the limited purpose of determining whether the victims conduct was inconsistent with the conduct of someone who had been molested. CALCRIM No. 1193 provided: You have heard testimony from [Dr. Veronica Thomas] regarding child sexual abuse accommodation syndrome. [] [Dr. Thomas]s testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against him. [] You may consider this evidence only in deciding whether or not [C.]s conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony. The court read CALCRIM No. 1193 to the jury following Thomass testimony and again at the conclusion of trial. Defense counsel did not object, suggest any modifications, or request CALJIC No. 10.64 in lieu of CALCRIM No. 1193.[1]

Defendant argues the CALCRIM instruction is a radical change from the detailed approach of CALJIC No. 10.64, and fails to caution the jury about the assumptions made in CSAAS studies and expands its materiality to the believability of the childs testimony. By improperly enhancing the impact and credibility of prosecution witnesses, the CALCRIM instruction lessened the prosecutions burden of proof . . . .

The instruction defendant argues should have been given, CALJIC 10.64, reads as follows: Evidence has been presented to you concerning [child sexual abuse accommodation] syndrome. This evidence is not received and must not be considered by you as proof that the alleged victims [molestation] claim is true. [Child sexual abuse accommodation] syndrome research is based upon an approach that is completely different from that which you must take to this case. The syndrome research begins with the assumption that a [molestation] has occurred, and seeks to describe and explain common reactions of [children] to that experience. As distinguished from that research approach, you are to presume the defendant innocent. The People have the burden of proving guilt beyond a reasonable doubt. [] You should consider the evidence concerning the syndrome and its effect only for the limited purpose of showing, if it does, that the alleged victims reactions, as demonstrated by the evidence, are not inconsistent with [her] having been [molested].

In People v. Bowker (1988) 203 Cal.App.3d 385 (Bowker), the court concluded an expert on CSAAS may not testify that a particular victims report of alleged abuse is credible because the victim manifests certain defined characteristics that are generally exhibited by abused children. The Court held CSAAS evidence was admissible for the limited purpose of disabusing the jury of common misconceptions concerning how child victims react to abuse. For example, an expert may testify that a certain characteristic or particular behavior, such as delayed reporting or recantation, is not inconsistent with a child having been molested. (Id. at p. 393.) To ensure the jury understood the limited purpose of the CSAAS evidence, the court imposed general requirements for instructing the jury. Beyond the tailoring of the evidence itself, the jury must be instructed simply and directly that the experts testimony is not intended and should not be used to determine whether the victims molestation claim is true. The jurors must understand that CSAAS research approaches the issue from a perspective opposite to that of the jury. CSAAS assumes a molestation has occurred and seeks to describe and explain common reactions of children to the experience. [Citation.] The evidence is admissible solely for the purpose of showing that the victims reactions as demonstrated by the evidence are not inconsistent with having been molested. (Id. at p. 394; see People v. Brown (2004) 33 Cal.4th 892, 905-906 [recognizing admissibility of expert testimony to dispel common misconceptions about how victims behave but not to prove alleged victim had actually been molested].)

Here, the CALCRIM instruction incorporated the essential points of the CALJIC instruction. The instruction informed jurors not to use the experts testimony as evidence defendant molested C. (testimony . . . is not evidence that the defendant committed any of the crimes charged), and that it could consider the CSAAS evidence only for the limited purpose of evaluating whether C.s behavior was inconsistent with having been molested (You may consider this evidence only in deciding whether or not [C.]s conduct was not inconsistent with the conduct of someone who has been molested).

Defendant correctly notes CALCRIM No. 1193 did not reproduce CALJIC No. 10.64s discussion of the assumptions underlying CSAAS, but this omission does not make the instruction flawed. Bowker focused on the risk the jury would use the CSAAS evidence as a predictor of child abuse. (Bowker, supra, 203 Cal.App.3d at p. 393.) It is one thing to say that child abuse victims often exhibit a certain characteristic or that a particular behavior is not inconsistent with a child having been molested. It is quite another to conclude that where a child meets certain criteria, we can predict with a reasonable degree of certainty that he or she has been abused. The former may be appropriate in some circumstances; the latter given the current state of scientific knowledge clearly is not. (Ibid.) To prevent the jury from misapplying CSAAS evidence, Bowker required an instruction directing the jury not to treat CSAAS evidence as proof that the crime actually occurred. CALCRIM No. 1193 does this by informing the jury CSAAS is not evidence defendant committed the offense charged. The information that CSAAS assumes a molestation has occurred is not an essential ingredient of the CALJIC instruction and was not explicitly required by Bowker. (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1387 [Bowkers reference to assumptions underlying CSAAS were explanatory and not to be incorporated in an instruction].)

Defendant also complains the CALCRIM instruction broadens the scope of the CALJIC instruction to allow the jury to consider CSAAS evidence in evaluating the victims credibility. Generally, CSAAS evidence is offered to disabuse a jury of misconceptions it might hold about how a child reacts to a molestation. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301.) But when the victims credibility is attacked, [t]he [CSAAS] testimony is pertinent and admissible. (People v. Patino (1994) 26 Cal.App.4th 1737, 1745.) Here, the victims credibility was in dispute because defendant denied committing the molestation. Because CALCRIM No. 1193 is a correct statement of the law, the jury could consider CSAAS evidence in weighing the victims credibility.

B. Defendants Conviction by Military General Court-Martial Constitutes a Prior Strike

The trial court found defendants 1999 attempted sodomy conviction by Army general court-martial constituted a prior serious felony within the meaning of the Three Strikes law. A qualifying prior conviction is defined to include a conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison and includes all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 [violent felonies] or subdivision (c) of Section 1192.7 [serious felonies]. (Pen. Code, 667, subd. (d)(2), (italics added); 1170.12, subd. (b)(2).)

California follows the majority of jurisdictions that hold a military conviction by general court-martial may serve as a predicate felony under recidivism laws, depending on the statutory language. It has been established that a conviction by courts-martial is to be accorded the same finality as a judgment of a [civilian criminal] court [citation], and that a conviction by an Army general court-martial may be treated by state courts as a prior felony conviction under laws of another jurisdiction. [Citations.] (People v. Calderon (1962) 205 Cal.App.2d 566, 573; compare People v. Hunt (1999) 74 Cal.App.4th 939, 947 [court-martial conviction in Germany for indecent acts with child does not qualify as conviction of sexually violent offense within meaning of Welfare and Institutions Code section 6600 where statute defines sexually violent offense to include a conviction in another state]; see Note, Military Discipline and Criminal Justice: Prior Military Convictions As Predicate Felonies Under Missouris Recidivism Statute (2005) 70 Mo. L. Rev. 219, 231 [hereafter Note]).)

Defendant apparently concedes convictions by general court-martial fall within the another jurisdiction language of the Three Strikes law. But he complains the prior conviction was legally invalid because military general court-martial procedure does not satisfy minimal constitutional standards applicable to criminal cases. Defendant did not make this argument in the trial court. Nevertheless, because it presents a pure legal issue, we exercise our discretion and consider the claim. (People v. Marchand (2002) 98 Cal.App.4th 1056, 1061 [reviewing court has discretion to examine for the first time on appeal important issues of constitutional law].)

Defendant relies on Reid v. Covert (1957) 354 U.S. 1 (Reid), which held military authorities could not constitutionally prosecute civilians for murdering their military spouses while residing abroad. The court held military tribunals did not provide civilians the right to trial by jury or other procedural protections required by due process. (Id. at p. 10.) The court observed military law emphasizes the iron hand of discipline more than it does the even scales of justice. (Id. at p. 38.) Defendant also relies on People v. Kelley (1967) 66 Cal.2d 232, which rejected the admission in a civilian court of a lawfully obtained confession under military law because its use would violate the defendants constitutional right to counsel. The court concluded that where a member of the Armed Forces stands accused before a civilian tribunal, he is protected with his full constitutional armor. His posture is no different from that of any other defendant so far as the protection of the Constitution is concerned. His military status cannot shear him of his basic rights. (Id. at p. 251.)

Nothing in Reid or Kelley prohibits a state from relying on a prior military conviction to enhance a subsequent criminal sentence under a states recidivist laws. Of course, denial of fundamental rights may cast doubt on the reliability of a military adjudication, but defendant fails to identify which right, if any, he was denied. Nor does he describe the general procedures used in his 1998 case military court-martial.[2] Military law has changed drastically over the years, and in the half century since Reid, Congress has introduced numerous reforms to the military justice system designed to make it more analogous to the civilian criminal justice system. The Uniform Code of Military Justice (UCMJ; 10 U.S.C.  801 et seq.) incorporates many of the federal constitutional rights available to defendants in civilian criminal trials, including the right of the accused to the assistance of counsel, the right to be informed of the nature and cause of the accusation, the right to a speedy trial, the right to confront witnesses, the right to compulsory process, and protections against double jeopardy and self-incrimination. (See Note, supra, 70 Mo. L. Rev. at p. 231.)

True, a minimum five-member panel may convict when only four of five members agree. And members of a court-martial may have less independence than jurors drawn from the general public, or civilian judges, because of the military command structure. But defendant does not persuade us that military general courts-martial are so unfair to justify a departure from the rule stated in Calderon. Accordingly, we disagree with his assertion the trial court erred as a matter of law and violated his Fifth and Fourteenth Amendment rights by relying on his court-martial conviction as a prior conviction under the Three Strikes law.

C. Substantial Evidence Supports the Finding Defendant Suffered a Prior Conviction

Defendant next challenges the sufficiency of the evidence to support the finding he suffered a prior serious/violent felony conviction. He asserts the trial court focused primarily on the elements of the attempted sodomy offense without examining the actual conduct in the record of conviction, and that the actual conduct set out in the court-martial record does not support the trial courts finding.

A conviction from another jurisdiction for conduct that satisfies all of the elements of the comparable California serious felony offense qualifies as a strike. (People v. Myers (1993) 5 Cal.4th 1193, 1195 (Myers); Pen. Code, 667, subd. (a), 1192.7, subd. (c).) The trier of fact may consider both the legal elements of the crime and the actual conduct as revealed by the record of conviction. (People v. Avery (2002) 27 Cal.4th 49, 53.) In other words, the trier of fact may consider the entire record of the proceedings leading to imposition of judgment on the prior conviction to determine whether the offense of which the defendant was previously convicted involved conduct which satisfies all of the elements of the comparable California serious felony offense. (Myers, supra, 5 Cal.4th at p. 1195.)

The evidence supporting the trial courts finding on the prior was based on a single, multi-page exhibit containing certified records in the custody of the Clerk of the United States Army Judiciary in Virginia, and judicial notice of portions of the 1998 edition of the Manual for Courts-Martial relating to Articles 125 (10 U.S.C. 925) and 80 (10 U.S.C. 880) of the UCMJ. The prosecutor also asked the court to acknowledge Cristy R.s testimony at trial on the issue of defendants identity as the person who suffered the prior conviction.

The general court martial order reflects defendant was charged with a specification of Article 125, forcible sodomy, and found guilty in February 1999 of Article 80, attempted forcible sodomy by force and without consent against Cristy R. The military court also found him guilty of Article 134, [i]ndecent assault upon Private [Cristy R.], a woman not his wife, by undressing her without her consent and exposing her vaginal area, with intent to gratify his sexual desires, on or about 31 Jan 98. Defendant was sentenced to four years confinement. The United States Army Court of Criminal Appeals affirmed the findings and sentence, and the United States Court of Appeals for the Armed Forces denied a petition for review.

Defendant contends that conduct involving undressing a woman without consent and exposing her vaginal area does not constitute a serious or violent felony under California law, and argues his conduct constituted at most a misdemeanor sexual battery under Penal Code section 243.4. The Attorney General responds by emphasizing that attempted sodomy, not indecent assault, formed the basis for the prior conviction finding. Comparing elements between military and California law in light of the military findings, the People assert the trial court could reasonably have found defendant suffered a conviction for oral copulation, a serious felony. (Pen. Code,  1192.7, subd. (c).)

Article 125 (10 U.S.C.  925) prohibits sodomy: Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense. According to the Manual for Courts-Martial (MCM),[3] the elements of the crime include a showing the accused engaged in unnatural carnal copulation with another person (MCM, Part IV,  51(b)), and may include specifications that the act was done by force and without the consent of the other person (MCM, Part IV,  51(b)(4)). The MCM explains, It is unnatural carnal copulation for a person to take into that persons mouth or anus the sexual organ of another person or of an animal; or to place that persons sexual organ in the mouth or anus of another person or of an animal; or to have carnal copulation in any opening of the body, except the sexual parts, with another person; or to have carnal copulation with an animal. (MCM, Part IV,  51(c); see United States v. Henderson (1992) 34 M.J. 174, 175-176.)

The record of conviction does not disclose how defendant violated Article 80/125, but the Article 134 findings establish he undressed the victim without her consent and exposed her vaginal area with intent to gratify his sexual desires. Also, the Article 80/125 conviction established at the least that defendant forcibly and without consent attempted either to (1) take into his mouth or anus the sexual organ of another person, (2) place his sexual organ in the mouth or anus of another person; or (3) have carnal copulation in any opening of the body, except the sexual parts, with another person.

Defendants conviction established he either attempted forcible oral copulation or sodomy as defined by California law. (Pen. Code,  288a, subd. (c)(2) [defining and punishing non-consensual, forced oral copulation];  286, subd. (c)(2) [sodomy].) Attempting either crime is a serious felony. (Pen. Code,  1192.7, subds. (c)(4), (5), and (39).)[4] Substantial evidence supports the courts finding that defendant suffered a prior conviction within the meaning of the Three Strikes law.

D. Use of Cristy R.s Testimony to Support the Finding on the Prior Conviction

When making its finding on the prior conviction, the trial judge stated: And you know, when you look at the testimony of Cristy R. here in the courtroom and the defendants admission that he has this prior conviction, theres no doubt whatsoever about the proof here.

Defendant argues the court failed to recognize that Cristy R.s testimony was admitted for a limited purpose. He notes the trial court limited the admissibility of the testimony in the following manner: Do not consider this evidence [of the uncharged sex offense] for any other purpose except for the limited purpose of determining the defendants credibility.

In People v. Martinez (2000) 22 Cal.4th 106, the Supreme Court determined that People v. Guerrero (1988) 44 Cal.3d 343, limiting proof to the record of the prior conviction, applies only to the circumstances of the crime, not other aspects of the prior conviction such as identity of the defendant. (People v. Martinez, supra, at p. 118.) Moreover, defendant did not object to the prosecutors request for the court to consider Cristy R.s testimony at trial on the issue of defendants identity as the person who suffered the prior conviction. (Evid. Code,  353.) Nothing suggests the trial court erroneously relied on Cristy R.s testimony to establish the circumstances of the prior offense. Similarly, defendant did not object to the courts consideration of his own testimony, and his testimonial admission also tended to prove his identity as the person mentioned in the military records.

The cases cited by defendant do not compel a contrary conclusion. People v. Johnson (1881) 57 Cal. 571 held that the prosecutor may impeach a defendant at trial with his pretrial admission he suffered a prior conviction. In People v. Carrow (1929) 207 Cal. 366, the court merely held that the defendants admission alone is insufficient to prove he suffered a prior conviction.

Here, the courts prior conviction finding was not predicated solely on the evidence elicited during defendants testimony that was admitted for impeachment. The court relied on the military records to establish the circumstances of the offense, and used Cristys and defendants trial testimony, without objection, to establish defendants identity as the person who suffered the prior. We perceive no error.

III

Disposition

Judgment affirmed.

ARONSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

MOORE, J.

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[1] California Rules of Court, rule 2.1050 provides that the CALCRIM jury instructions are the official instructions for use in the state. The goal of these instructions is to improve the quality of jury decision making by providing standardized instructions that accurately state the law in a way that is understandable to the average juror. [] (b) The Judicial Council endorses these instructions for use and makes every effort to ensure that they accurately state existing law. The articulation and interpretation of California law, however, remains within the purview of the Legislature and the courts of review.

[2] In its motion to admit the prior incident under Evidence Code section 1108, the prosecution asserted defendant entered a plea of guilty to the military charges. The record is otherwise silent on whether his conviction resulted from his guilty plea or a trial.

[3] The trial court took judicial notice of a portion of the 1998 edition of the MCM but they are not in our record. We have reviewed the 2005 edition, the relevant parts of which appear to be the same.

[4] Cristy R. testified in the current trial that defendant placed his mouth on her vagina, i.e., he most likely committed the crime defined in California as completed or attempted forcible oral copulation. But the trial court was limited to the record of the military conviction, and could not consider her testimony in the current case on the issue of whether defendants military conviction constituted a prior strike.