Filed 5/12/17 P. v. Hodges CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT DAVID HODGES,

Defendant and Appellant.

F071355

(Stanislaus Super. Ct. No. 1457144)


OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
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Robert David Hodges appeals his convictions arising from his sexual abuse of his minor daughter, Jane Doe. He argues the trial court improperly instructed the jury on the evaluation of character evidence presented in his defense. Specifically, he argues the trial court improperly instructed the jury that evidence of a defendant’s character for kindness and respectfulness can, by itself, create reasonable doubt as to his guilt for the charged offenses. Hodges contends that in his case, the relevant character trait was “sexual normalcy,” and the trial court should have instructed the jury that character evidence of defendant’s sexual normalcy could create a reasonable doubt as to his guilt for the charged offenses. We reject Hodges’s contention because there was no character evidence presented regarding Hodges’s sexual proclivities and preferences or his putative sexual normalcy, hence there was no evidentiary basis for instructing the jury to consider such evidence. Furthermore, given the present record, even were we to assume the trial court erred as Hodges contends, the error was harmless under any standard of prejudice. Accordingly, we affirm the judgment.
PROCEDURAL HISTORY
An indictment filed in the Stanislaus County Superior Court on July 31, 2013, charged Hodges with two counts of penetration by a foreign object (digital penetration) (counts 1 & 3; Pen. Code, § 289, subd. (i)); committing a lewd act upon a child 14 or 15 years old (count 2; § 288, subd. (c)(1)); three counts of unlawful sexual intercourse with a child under the age of 16 (counts 4 [sexual intercourse in Jane Doe’s bedroom], 5 [sexual intercourse in the living room], and 6 [sexual intercourse in Hodges’s bedroom]; § 261.5, subd. (d)); oral copulation of a child under the age of 16 (count 7; § 288a, subd. (b)(2)); and two misdemeanor counts of contempt of court (counts 8 & 9; § 166, subd. (c)(1).)
Jury trial in the matter commenced on February 11, 2015. The jury found Hodges guilty as charged in counts 1, 2, 3, 5, 8, and 9, and guilty of the lesser included offense of misdemeanor battery (§ 242) in count 6 (sexual intercourse in Hodges’s bedroom). The jury found Hodges not guilty of counts 4 (sexual intercourse in Jane Doe’s bedroom) and 7 (oral copulation of Jane Doe on the same occasion as the intercourse in her bedroom).
The court denied probation and sentenced Hodges to a total prison term of five years. The court designated count 5, sexual intercourse in the living room, as the principal offense and sentenced Hodges to the midterm of three years for this offense. On counts 1 (digital penetration), 2 (lewd and lascivious act), and 3 (digital penetration), the court sentenced Hodges to one-third the midterm or eight months on each count (collectively, 2 years), to run consecutive to the sentence on count 5. As for Hodges’s two misdemeanor convictions for contempt of court, he was collectively sentenced to 65 days or time served for these offenses. The court ran the sentences on the misdemeanor convictions concurrent to each other and to the sentences on his felony convictions.
FACTUAL SUMMARY
This appeal relates to Hodges’s convictions for sexually abusing his minor, teenaged daughter, Jane Doe, during 2009 and 2010, when the Hodges family lived in a house in Modesto. Hodges, in his late 30s, was a sergeant with the Modesto Police Department at the time of the abuse. At that time, the Hodges family consisted of Hodges, his wife J.H., and their children Jane Doe and M.H. M.H. was some years younger than his sister, Jane Doe. When Hodges’s sexual abuse of Jane Doe was reported to the police in October 2012, Hodges and J.H. were recently separated. By the time trial in the matter commenced in February 2015, they were divorced.
The Prosecution’s Case
The evidence against Hodges at trial was formidable, given the detailed testimony of Jane Doe, J.H., and M.H. Jane Doe described a pattern as well as specific acts of sexual abuse. The molestation started in August 2009, at the beginning of Jane Doe’s freshman year in high school, on a day when she had stayed home sick from school. Hodges worked the graveyard shift and was the only other person home that day. Jane Doe was lying on the couch in the living room, watching television. Hodges came into the room and lay down on the couch next to her. Shortly thereafter, he started to massage her body, which escalated into fondling her breasts and buttocks both over and under her clothing. Eventually, he put his finger inside her vagina and asked her whether that felt good. Jane Doe just lay there in shock.
On another occasion, three to four months later, Hodges again lay down on the couch with Jane Doe, in a “spooning” position. This time he groped her under her clothing, inserted his finger into her vagina, pulled his pants down, and rubbed his penis between her legs. This type of abuse happened multiple times throughout Jane Doe’s freshman year in high school. Jane Doe testified that each time Hodges molested her, he would say, “‘[Jane Doe], I’m sorry. This was a mistake. I didn’t mean to do this. You can’t tell anyone. If you tell anyone it will ruin the family.’” Hodges also repeatedly told Jane Doe that if she revealed the molestation, people would think she was a slut and be disgusted by her; her mother and brother would also hate her for breaking up the family.
By February 2010, the abuse had escalated from fondling and “fingering” to sexual intercourse. Jane Doe described three separate occasions on which Hodges had sexual intercourse with her. The first time was in her bedroom, the second time was in Hodges’s bedroom, and the third time was in the living room. Prior to having sexual intercourse for the first time with Jane Doe, in her bedroom, Hodges also made her give him a “hand job” and orally copulated her. The second time Hodges had intercourse with Jane Doe, in his bedroom, he told her that it did not amount to rape because his “penis was never fully inside of” her. Jane Doe was so infuriated at Hodges’s willful self-delusion that she made sure his penis went all the way inside her and then congratulated him for raping his daughter. Jane Doe testified that the third instance of sexual intercourse with Hodges “was different” because it was “forceful” and “faster.” Hodges came up behind her, pushed her over the living room couch, grabbed her hips, forcefully inserted his penis into her vagina, and ejaculated inside her. He forced her to take a bath directly afterwards, standing over the tub until it was full of water and she was immersed in it. The sexual abuse ended shortly after this incident, which occurred around the end of her freshman year in high school.
Jane Doe did not immediately disclose the abuse to her family because she was “pretty much brainwashed.” She testified she loved her family and carried “a horrible burden” because she was afraid that telling the truth would “tear [her family] apart.” She explained: “I had to make sure that I didn’t ruin the family … because … my dad would go to jail and just everything would fall apart.”
About a year and a half later, on January 2, 2012, Jane Doe finally told her family about the abuse. On that day, the entire family was in Sacramento for a lunch to celebrate her paternal grandmother’s birthday. At the lunch, Hodges took away Jane Doe’s phone because he saw a text message from “a guy [she] really liked and wanted to date” but whom Hodges disapproved of. During the car ride home from Sacramento, Jane Doe was upset at Hodges and blurted out, “You have no right to tell me who is good for me and who is bad for me. You have no right because you’re a horrible person yourself.” Jane Doe testified, “My dad at that point threw my phone back to me and was like, ‘Here. You want your phone? Whatever.’” But her mother started quizzing her: “‘Did Dad do something to you? What happened to you? Did he do this? Did he do that?’ And finally she lands on the word ‘rape.’” Jane Doe added: “She’s like, ‘[Jane Doe], did Dad rape you?’ And I start to cry. [M.] starts to cry. And while she’s playing this guessing game, I’m like, ‘I can’t say. It will ruin the family. I can’t tell you. It will ruin the family.’”
Jane Doe testified that Hodges raised his voice and said, “[J.], I would never do that. Are you kidding me[?]” Her mother was crying by now, but her father continued to deny that he had done anything. Jane Doe explained, “And then finally after him denying it so much, I was like, ‘Yes, Dad did do this to me.’ And I just remember my mom looking out the window and just falling into tears while my dad’s like, ‘[J.], I would never do that. You have to trust me. I wouldn’t do that to [Jane Doe].’” Jane Doe further testified, “The rest of the car ride was in silence … and then he finally said, ‘Yes, this did happen.’ And then the rest of the car ride was silent until we got home.”
After they got home, Jane Doe’s parents talked in seclusion for a while. Later, they called Jane Doe downstairs. Hodges told Jane Doe, “[I]f we go to the police, this will cause more issues.” He explained they needed to keep the molestation a secret, otherwise he would lose his job, go to prison, and the family would be disgraced. Hodges also said they would work on mending the family and keeping the family together. Jane Doe’s mother was “just silent … agreeing with him … nodding her head.”
J.H. and M.H. corroborated various aspects of Jane Doe’s testimony, including her description of the incident in the car when Hodges admitted he had sexually abused her. J.H. further testified she had seen Hodges “spooning” with Jane Doe on the couch on multiple occasions in a way that was “weird” and “look[ed] wrong.” However, after the abuse came to light, J.H. agreed to keep it under wraps because of concerns that Hodges would go to prison and the family would be broken up.
M.H. described an occasion several years ago when Jane Doe did not seem her normal self. Jane Doe confided to him that their father was molesting her, which revelation left M.H. in tears. M.H. also testified that sometime after January 2, 2012, he was in a park with his father, playing baseball. His father told him not to tell anyone about the molestation because “if what he did got out … he would go to jail for a long time.”
In addition to the testimony of J.H. and M. H., two of Jane Doe’s close friends also testified that Jane Doe had told them, before any charges were brought, that her father had sex with her while she was in high school.
By September 2012, the Hodges had separated and Jane Doe was living with her mother in a house in Oakdale. J.H. had slowly come to the conclusion that Jane Doe would have to report the abuse in order to obtain counseling and treatment for resultant psychological issues. Jane Doe, for her part, testified that by that time, “[i]t just felt like I was released from a spell. I wasn’t under [Hodges’s] control anymore. I was more independent. I was very, very angry.” Eventually, on October 22, 2012, at her mother’s urging, Jane Doe reported Hodges’s conduct to the police.
After extensively interviewing Jane Doe and J.H., the police set up a consensually-recorded pretext phone call placed by Jane Doe to her father. The recorded phone call captured a highly incriminating conversation between Jane Doe and Hodges. In that conversation, Jane Doe referenced the fact that Hodges had sex with her and said she wanted to talk to a mental health counselor because she was afraid it could happen again. Hodges did not deny having sex with Jane Doe and adopted her references to sexual contact between him and her. He further warned Jane Doe that were she to reveal his actions to a counselor, he would lose his job, be convicted, and go to prison for the next 30 years or the rest of his life. Jane Doe asked on the phone call, “I was your daughter … cheating would’ve been better. Why did you choose me … why was it me?” Hodges responded, “I wish I could explain it … and I know I made you feel bad, but, my God, we can … work on things together.” Hodges eventually hung up the phone. The recording of the phone call was played for the jury.
The Defense Case
Hodges testified in his own defense. He denied that he had abused Jane Doe but corroborated the testimony of Jane Doe, J.H., and M.H. in other important respects. For instance, he admitted that, on a number of occasions, he would lie on the couch with Jane Doe, in a “spooning” position, to watch television. He also testified his wife told him it was “not right” for him to lie with Jane Doe in that manner and that he should stop doing so. He testified, however, that Jane Doe had falsely accused him of molesting her as a way to intimidate him, so she could get her way in terms of dating an older man whom Hodges disapproved of. Hodges also denied that he admitted to the family on the drive home from Sacramento on January 2, 2012, that he had sexually abused Jane Doe. He similarly denied that he had urged his family members to keep quiet about the abuse so as to prevent the ruination of the family. As to the recorded phone call between Jane Doe and him, Hodges explained that he did not deny having sex with Jane Doe on that call because he was trying to “pacify” her, so she would not publicly spread her “horrible accusations.”
The defense also called a number of character witnesses. The character witnesses included Hodges’s maternal aunt Ruby Abel, his friend Modesto Police Sergeant Clint Raymer, and Sophia Sandoval, the daughter of Hodges’s girlfriend at the time. Ruby Abel testified that Hodges and Jane Doe appeared to have an “average, normal family relationship.” However, Ruby Abel lived in Washington, D.C. from 2008 until 2013 and only saw the family about once a year during that period. Sophia Sandoval, aged 18, met Hodges in December 2012, when he started dating her mother in Modesto. Sandoval attended college in San Diego and was not based in Modesto. Although Sandoval acknowledged she had not known Hodges for very long, she felt extremely “comfortable” with him and would even ask him to walk her down the aisle if the opportunity arose. Lieutenant Clint Raymer had known Hodges for over 20 years, since the latter was an Explorer at the police department. Raymer testified that the relationship between Jane Doe and Hodges had appeared, over the years, to be “a normal parent-child relationship.” On cross-examination, Raymer clarified that he and Hodges had never discussed their sexual fantasies or watched pornography together, nor had Hodges ever mentioned the issue of molesting his daughter or “any kind of specifics” related to the instant case. While he was on the witness stand, Raymer read the transcript of the recorded pretext phone call between Jane Doe and Hodges. As he did so, he became extremely emotionally distraught and broke down.
The Prosecution’s Rebuttal Case
In rebuttal, the People called Dr. Anthony Urquiza, Ph.D., a licensed psychologist, professor in the Department of Pediatrics at UC Davis Medical Center, and director of the CAIRE Center, a child-abuse treatment program within the Department of Pediatrics at UC Davis Medical Center. Urquiza testified that it was not possible to tell, from a child’s outward appearance, whether the child was a victim of sexual abuse. He explained that children tended to dissociate or disengage from ongoing sexual abuse, as a coping mechanism. As a result of such detachment from the reality of abuse, they would appear outwardly normal, carry on with their daily lives, and even maintain a seemingly normal relationship with their abuser. Urquiza further testified that child victims of sexual abuse generally “don’t want anybody to know about [the abuse]” and often delay any disclosure of abuse. Moreover, if and when they disclose abuse, they frequently do so “in bits and pieces.” Furthermore, since “kids don’t understand sexual relationships,” they initially “may not have a lot of overtly stated anger.” However, “as time moves on, having a sense of anger is a common characteristic,” because, as they get older, children better comprehend the egregiousness and ramifications of child sexual abuse.
DISCUSSION
In light of the fact that Hodges called character witnesses in the defense case, the trial court instructed the jury, pursuant to CALCRIM No. 350, as follows:
“You have heard character testimony that the defendant is a kind and respectful person. Evidence of a defendant’s character for kindness and respectfulness can by itself create a reasonable doubt. However, evidence of the defendant’s good character may be countered by [evidence of his] bad character for the same trait.
“You must decide the meaning and importance of character evidence. You may take that testimony into consideration along with all the other evidence in deciding whether the defendant is guilty beyond a reasonable doubt.”
On appeal, Hodges contends that this version of CALCRIM No. 350 was both erroneous and prejudicial, requiring reversal of Hodges’s sex offense convictions. We disagree.
A defendant is entitled upon request to an instruction specifying that evidence of his “good reputation, if he have such, as to traits involved in the charge, should be weighed as any other fact established, and that it may be sufficient to create a reasonable doubt as to his guilt.” (People v. Bell (1875) 49 Cal. 485, 490.) As Bell explained, “there may be cases so made out that no character, however high, can make them doubtful, while there may be other cases in which a high character would produce a reasonable doubt, when without it, the evidence might be considered as establishing guilt beyond a reasonable doubt.” (Ibid.) CALCRIM No. 350 is based on the principle set forth in Bell and on Evidence Code section 1102, which permits a defendant to introduce evidence of his character “in the form of an opinion,” when offered to prove “conduct in conformity with such character.” (Evid. Code, § 1102.) CALCRIM No. 350 is a pinpoint instruction and need not be given unless there is substantial record evidence to support a particular defense theory involving the defendant’s character. (People v. Saille (1991) 54 Cal.3d 1103, 1119 [pinpoint instructions must be given upon request, when there is evidence to support the theory encompassed by the requested instruction].)
Here, Hodges challenges the specific version of CALCRIM No. 350 given by the trial court: “The instruction that defendant’s character for kindness and respectfulness could create a reasonable doubt, when sexual normalcy and lack of sexual deviance were the particular good character traits involved, was prejudicial error.” For the reasons discussed below, Hodges’s argument is unavailing.
CALCRIM No. 350 is a pinpoint instruction that a trial court is required to give only upon a defendant’s request, when substantial evidence supports a particular theory encompassed by the instruction. Here, defense counsel did not request a character-evidence instruction pertaining to sexual normalcy, nor did he object to the instruction given by the trial court, which referred to the character traits of “kindness and respectfulness.” Since trial counsel neither requested the inclusion of language on sexual normalcy nor objected to the instruction as given, Hodges’s has forfeited his claim of instructional error. (People v. Valdez (2004) 32 Cal.4th 73, 113 [failure to either object to the proposed instruction or request that the omitted language be given to the jury, forfeits claim of instructional error on appeal]; People v. Hart (1999) 20 Cal.4th 546, 622 [failure to request clarifying instruction at trial forfeits claim on appeal].)
In any event, Hodges’s claim fails on the merits. Hodges did not offer any character evidence regarding his sexual proclivities and preferences or his putative sexual normalcy, so there was no evidentiary basis for instructing the jury to consider whether such character evidence created a reasonable doubt as to Hodges’s guilt in relation to the charged offenses. We also note that the jury would reasonably have understood the instruction in the context of the case, and interpreted it as applying to character evidence showing that Hodges was a “kind and respectful person” who would not molest anyone, let alone his own daughter. Thus, the error Hodges complains of is illusory at best. (See People v. Clair (1992) 2 Cal.4th 629, 663 [the question on appeal is whether there is a reasonable likelihood the jury misunderstood the instructions in the manner suggested by defendant].)
Finally, even were we to assume that the version of CALCRIM No. 350 given by the trial court was erroneous (though apparently tailored to the evidence that had been received), the error was harmless under any standard of prejudice. The evidence against Hodges was strong and persuasive and, at the same time, the character evidence presented by the defense was weak, vague, and unconvincing.
Jane Doe described the abuse in detail and J.H. and M.H. corroborated her testimony in critical respects. All three witnesses described the incident that took place on January 2, 2012, when the family was in the car driving home from Sacramento, and Jane Doe burst out with the fact that Hodges had raped her, leading, ultimately, to Hodges’s admission that he had in fact molested her. J.H. and Jane Doe testified that Hodges and J.H. agreed to keep the abuse a family secret in order to preserve the family unit, and instructed Jane Doe to do the same. M.H. further testified that Hodges separately warned him to keep the molestation a secret, since its revelation would lead to the family’s destruction. The jury also heard the extremely incriminating, recorded conversation between Jane Doe and Hodges in which Hodges essentially admitted he molested and had sex with Jane Doe. Hodges’s own explanation for his responses during that phone call—i.e., that he was simply trying to “pacify” Jane Doe—was patently self-serving and illogical.
Furthermore, the character witnesses called by the defense did nothing to help the defense’s case. Ruby Abel testified generally that Hodges and Jane Doe appeared to have an average father-daughter relationship; however, Abel only saw the family once a year during the relevant period. Sophia Sandoval lived in San Diego and did not know Hodges well. And Clint Raymer broke down on the stand after reading the transcript of the recorded phone call between Jane Doe and Hodges, laying bare his own realization that he did not know Hodges as well as he had thought.
In sum, we detect no error in the version of CALCRIM No. 350 given by the trial court, and, even assuming the instruction was erroneous as Hodges contends, the error was harmless on this record.
DISPOSITION
The judgment is affirmed.


SMITH, J.
WE CONCUR:



GOMES, Acting P.J.



PEÑA, J.