P. v. Crego

 

 

 

 

 

 

 

 

 

 

 

 

Filed 11/1/13  P. v. Crego 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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.   DAVID THOMAS CREGO,                           Defendant and Appellant.

C067152   (Super. Ct. Nos. 09F07220 & 10F07365)

 

 

 

 

            On counts one and two, a jury
convicted defendant David Thomas Crego of lewd and lascivious acts with a
15-year-old child.  The trial court
declared a mistrial on count three. 
Nonetheless, the trial court had instructed the jury that if the jury
determined, either beyond a reasonable doubt or by a preponderance of the
evidence, that defendant committed the act alleged in count three, the jury
could consider that act in determining whether defendant was disposed or
inclined to commit the offenses charged in counts one and two. 

            Defendant challenges that
instruction, claiming it violated his federal
due process rights because the trial court did not conduct an Evidence Code
section 352href="#_ftn1" name="_ftnref1"
title="">[1] analysis, and because the instruction
improperly included references to both the beyond-a-reasonable-doubt standard
and the preponderance-of-the-evidence standard. 


            We conclude the trial court did not
commit instructional error.  We will affirm the judgment. 

BACKGROUND

            One afternoon in March 2009,
defendant watched a movie in his living room with one of his stepgranddaughters
and her 15-year-old half-sister, J.E. 
J.E. was lying on a sofa covered by a blanket; defendant sat near her
head.  J.E. testified that defendant
touched her breast and buttocks during the final 30 minutes of the film. 

            M.K was another stepgrandaughter of
defendant’s.  She began living with her
grandmother and defendant when she was in sixth grade.  M.K. testified that one evening when she was
12 years old and in seventh grade, she fell asleep watching television with
defendant and woke up to discover his hand on her breast. 

            In addition, another
stepgranddaughter, A.C., testified that she remembered many years earlier
falling asleep while watching television with defendant at his home.  She said she woke up to find his hand on her
upper thigh. 

            Count one of the amended
consolidated information alleged that defendant violated Penal Code section
288, subdivision (c)(1), committing a lewd and lascivious act against J.E. by
touching her breasts.  Count two alleged
that defendant violated Penal Code section 288, subdivision (c)(1), committing
a lewd and lascivious act against J.E. by rubbing her buttocks.  And count three alleged that defendant
violated Penal Code section 288, subdivision (a), committing a lewd and
lascivious act against M.K. 

            Defendant described himself as a
“huggy guy.”  He testified that he had
inadvertently touched J.E.’s breast while tickling her on the night in
question.  He denied rubbing her buttocks.  Defendant said that, over the years, it was
possible his hand fell on or near M.K.’s breast.  Nonetheless, he denied being sexually aroused
by the minors and he categorically denied the charges against him. 

            Among other things, the trial court
instructed the jury as follows:

            “Now, if you decide the defendant
committed the offense of Penal Code Section 288(a) with regard to [M.K.] as
alleged in Count 3 or of the lesser included offense of Penal Code Section
288(c)(1),[href="#_ftn2" name="_ftnref2" title="">[2]] either beyond a reasonable doubt or by a
preponderance of the evidence, you can consider whether the fact that you found
that he committed the underlying offense convinces you that he was disposed or
inclined to commit the offenses with regard to [J.]E. in Counts 1 and 2, as
outlined in instruction No. 1191, or as evidence of defendant’s intent
regarding [J.]E.’s offenses as outlined in instruction 375.[href="#_ftn3" name="_ftnref3" title="">[3]]  [¶] 
The People must still prove the elements of each offense beyond a
reasonable doubt before you can find him guilty of any particular count.” 

            Defendant objected to the
instruction, but he did not request clarification or amplification.  At the start of deliberations, the jury asked
to have some of the testimony read back to them. 

            The jury found defendant guilty on
counts one and two, the counts pertaining to J.E.  On count three, the count pertaining to M.K.,
the trial court declared a mistrial. 

DISCUSSION

I

            Defendant contends the challenged
instruction violated his federal due
process rights because the trial court did not conduct a section 352 analysis. 

            Section 1108 provides that in a
criminal action in which a defendant is accused of a sexual offense, evidence
that the defendant committed another sexual offense is not inadmissible under
section 1101 if it is not otherwise inadmissible under section 352.  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.”

            In People v. Villatoro (2012) 54 Cal.4th 1152 (Villatoro), the trial court made no express finding that the
probative value of the propensity evidence
outweighed the danger of undue prejudice or confusion; nonetheless, the
California Supreme Court determined that such an analysis was implicit in the
record.  (Id. at p. 1168 [finding made on the basis of “ â€˜record
indications well short of an express
statement,’ â€ quoting People v.
Padilla (1995) 11 Cal.4th 891, 924, partly overruled on other grounds by >People v. Hill (1998) 17 Cal.4th
800, 823, fn. 1].)  But in any event, the
court ruled any error in failing to make such an analysis was harmless in that
case.  (Villatoro, supra, 54 Cal.4th at p. 1168.)

            Here, we conclude that even though
the trial court did not make an explicit section 352 analysis, any error in
conducting the analysis was harmless. 
The three victims were close in age, were related to defendant by blood
or marriage, and all three had been on a sofa at defendant’s home when he
touched intimate parts of their bodies in a way that made them
uncomfortable.  The conduct was similar,
the evidence was probative of defendant’s propensity to commit such offenses,
and its value substantially outweighed any prejudice.  (See Villatoro,
supra, 54 Cal.4th at pp. 1168-1169.)

II

            Defendant next contends the
challenged instruction violated his federal due process rights because the
instruction improperly included references to both the
beyond-a-reasonable-doubt standard and the preponderance-of-evidence
standard. 

            In considering a constitutional
challenge to a jury instruction involving the burden of proof, we review the
instructions as a whole, in light of the entire record, “to determine whether
it is reasonably likely the jury understood the challenged instruction in a way
that undermined the presumption of innocence or tended to relieve the
prosecution of the burden to prove defendant’s guilt beyond a reasonable
doubt.”  (People v. Paysinger (2009) 174 Cal.App.4th 26, 30.)

            The jury instruction at issue was
based on CALCRIM No. 1191 (evidence of uncharged sex offense), modified at the
prosecution’s request for application to the evidence of the charged offense
involving M.K.  CALCRIM No. 1191 applies
the preponderance of evidence standard, stating in relevant part:  “You may consider this evidence only if the
People have proved by a preponderance of the evidence that the defendant in
fact committed the uncharged offense[s].” 
(CALCRIM No. 1191.)  The trial
court used the pattern instruction with respect to evidence about A.C., and
defendant does not challenge the instruction pertaining to A.C.

            Regarding the evidence about M.K.,
however, the prosecution requested a modification of the pattern instruction
because “whether they find the defendant committed the incident involving
[M.K.] beyond a reasonable doubt or by a preponderance of the evidence[,] they
can use that evidence in [J.E.]’s incident.” 
In response to an objection by the defense about potential confusion on
the standard of proof, the trial court ruled that giving the instruction with
respect to the uncharged conduct against A.C. alone might have led the jury to
conclude that it was precluded from considering evidence of the charged conduct
against M.K. as propensity evidence. 
Over objection, the trial court modified the pattern jury instruction as
requested by the prosecutor. 

            The Attorney General contends the
failure of defense counsel to promptly request clarification or amplification
of the instruction forfeited the argument on appeal.  In People
v. Samaniego (2009) 172 Cal.App.4th 1148, the appellate court held that
clarification or amplification must be immediately requested if a jury
instruction is “generally an accurate statement of law.”  (Id.
at p. 1163.)  Here, however, although the
law regarding use of charged acts as propensity evidence was unsettled at the
time of trial, the issue was subsequently addressed (before briefing was
completed in this case) in Villatoro,
supra, 54 Cal.4th 1152.

            The California Supreme Court held
that “nothing in the language of section 1108 restricts its application to
uncharged offenses.  Indeed, the clear
purpose of section 1108 is to permit the jury’s consideration of evidence of a
defendant’s propensity to commit sexual offenses.”  (Villatoro,
supra, 54 Cal.4th at p. 1164.) 
Responding to a concern expressed in a concurring and dissenting opinion
that there might be “ â€˜bootstrapping of verdicts,’ â€ the majority
said other standard jury instructions preclude a jury from convicting a
defendant on one count based only on a guilty verdict on another count.  (Id. at
p. 1165.)  The majority also emphasized
that it is not the verdict, but rather the underlying factual finding of the
commission of the other act, that the jury relies on to draw an inference of
disposition or propensity.  (>Ibid.) 


            Defendant argues >Villatoro is inapposite because there,
the modified instruction required the jury to apply the “beyond a reasonable
doubt” standard for both the verdict and
the propensity finding.  The California
Supreme Court did note that the use of the same standard for both purposes
assured that there was “no risk [that] the jury would apply an impermissibly
low standard of proof.”  (>Villatoro, supra, 54 Cal.4th at p.
1168.)  But the Supreme Court did not
hold that a jury could only consider charged conduct for propensity purposes if
it first found the charged conduct true beyond a reasonable doubt; it looked to
the entirety of the instructions to assess whether the presumption of innocence
was undermined in that case.  (>Id. at pp. 1168-1169.)  We must do the same.

            The modification to CALCRIM 1191 in
this case was not a model of clarity. 
Reviewed in context, however, there is no evidence that it caused the
jury to apply an impermissibly lower standard of proof. 

            Defendant does not challenge the
jury instruction for evidence about defendant’s uncharged conduct with
A.C.  It follows that the same jury
should have been able to use factually similar evidence about M.K. in the same
way, regardless of whether the jury concluded the evidence about M.K. was
sufficient for conviction.  That was the
trial court’s purpose for issuing the challenged instruction. 

            Defendant suggests that the jury’s
request to rehear evidence demonstrates prejudicial error in the challenged
instruction.  We disagree.  J.E.’s testimony about the charged incident
was diametrically opposed to defendant’s testimony.  The jury had to decide whether defendant
reached into J.E.’s bra and rubbed the nipple of her left breast for about a
minute as she said, or whether he accidentally touched the side of her bra for
“two seconds, three seconds, four seconds max” while tickling her, as he said.  Either he rubbed his hand in a circular
motion in the area where her legs started as she said, or he never touched her
buttocks at all.  These credibility
determinations may or may not have been influenced by the evidence about A.C.
and M.K., but listening to the evidence again does not suggest that the jury
misunderstood its instructions. 

            The use of one standard for a
charged offense and another for propensity evidence is not unduly confusing in
itself.  (People v. Reliford (2003) 29 Cal.4th 1007, 1016.)  We presume jurors will understand and properly
apply the instructions.  “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.”  (>Ibid.)

            On this record, there is no
reasonable likelihood the jury misunderstood and misapplied the challenged
instruction in a way that undermined the presumption of innocence or relieved
the prosecutor’s burden to prove the case against defendant beyond a reasonable
doubt.

DISPOSITION

            The judgment is affirmed.

 

 

 

                                                                                                          MAURO                        , J.

 

 

We concur:

 

 

                       ROBIE                        , Acting P. J.

 

 

                       HOCH                         , J.