P. v. McNeil

Filed 3/23/07 P. v. McNeil CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Kenneth Barr, Judge. Affirmed.

David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Annie Featherman Fraser, Deputy Attorney General, for Plaintiff and Respondent.

I. INTRODUCTION

In a 2002 jury trial, defendant was convicted of committing a lewd act on a child, 11-year-old, B., in 1996. (Pen. Code,  288, subd. (a); count 1.) B. was 17 years old at the time of trial. She testified that, one night when she was staying in defendants house in August 1996, defendant touched her inner thigh several times as she was trying to sleep on a couch.

The jury was unable to reach a verdict on a second lewd act charge involving B. (Pen. Code,  288, subd. (a); count 2), deadlocking nine to three in favor of acquittal. Regarding this charge, B. testified that, the day after the thigh-touching incident, defendant grabbed her breast as she and defendant were walking back to defendants house from the house next door. A mistrial was declared on count 2, and the charge was dismissed on the Peoples motion.

In a bifurcated trial, the jury found that defendant had two prior strike convictions consisting of two residential burglary convictions in 1983. (Pen. Code,  667, subds. (b)-(i), 1170.12, subds. (a)-(d).) Because defendants lewd act conviction in count 1 constituted his third strike, he was sentenced to an indeterminate term of 25 years to life. Defendant appeals, raising two contentions.

First, defendant contends the trial court abused its discretion and denied him his state and federal due process right to present evidence in his defense by refusing to admit impeachment evidence that B. had falsely accused another person, Chester Stewart, of attempting to molest her in December 1997. We conclude that the evidence was properly excluded under Evidence Code section 352,^[1]and its exclusion did not deprive defendant of his right to present a defense.

Second, defendant contends the trial court violated his federal due process rights by admitting evidence of other sexual offenses he committed against three other underage girls, and by instructing the jury it could find this evidence true by a preponderance of the evidence. ( 1108.) He raises these claims to preserve them for federal review, acknowledging that our state Supreme Court rejected an identical due process challenge to section 1108 in People v. Falsetta (1999) 21 Cal.4th 903, 912 through 917 and approved finding prior sexual offense evidence true by a preponderance of the evidence in People v. Reliford (2003) 29 Cal.4th 1007, 1016. Because we are bound by these decisions (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we reject defendants claims. Accordingly, we affirm the judgment.

II. FACTS AND PROCEDURAL HISTORY

A. B.s Testimony

B. was born in December 1984. In August 1996, when B. was 11 years old, she was living in San Bernardino with her sister and her sisters friend, Gretchen. B.s mother was a truck driver and was away from home at the time.

Gretchen and defendants wife, who were friends, made arrangements for B. to clean defendants house. One day in early August 1996, B. went to the house in the late afternoon and stayed the night. Defendant, his wife, one of their children, and defendants brother were present in the house. B. slept on a couch in the living room, wearing a pajama set consisting of a T-shirt and girl boxer shorts that fell almost to her knees.

As B. lay sleeping, defendant came into the living room and touched her on her leg, waking her. He massaged her inner thigh inside her boxers, near her knee. She told him to stop. When he did not stop, she told him to stop, using a louder voice. Eventually, defendant stopped and went into another room. Later, when B. was sleeping again, defendant came back and rubbed her inner thigh a second time, this time going up to the middle of her thigh. She yelled at him to stop. Again, he stopped and went into the next room.

Around 3:00 a.m., defendant began rubbing B.s thigh a third time, this time where her hip met her leg. At some point when defendant was touching B., he told her that, if he had a little girl, he would want her to be just like B. B. pushed defendant off of her and again told him to stop.

At this point, defendant asked B. to go with him to the house next door, although it was still around 3:00 a.m. He told her he was watching the house. She went with him because she was afraid of defendant and thought it would make him leave her alone. At the house next door, defendant and B. watched a movie, and defendant gave B. some soda. Nothing sexual happened, and after about a half hour, they left to go back to defendants house.

On the way back to defendants house, B. tripped over a broken chain link fence. Defendant reached out to catch her and touched her breast, cupping it in his hand. The touching was not accidental, but purposeful and unnecessary to stop B. from falling. B. pushed defendant away. When they reached defendants house, B. began to run away, but defendant asked her to stay and not tell anyone what had happened. After that, defendant left her alone.

The following day, B. told defendants wife that defendant had touched her. The wife was kind of shocked and did not believe B. B. also told her sister and Gretchen, but they, too, did not believe her. As a result, B. did not immediately tell anyone else about the molestations.

A few weeks after the molestations, B. and Gretchen had to move into defendants house for a few weeks because Gretchen was evicted from the apartment in which B. and her sister were living. B. did not claim any touching occurred while she was living in defendants house.

In December 1997, when B. was a student at a school in Fontana, she had a conversation with a school counselor. During the conversation, B. told the counselor about the August 1996 incidents involving defendant. The same day, the counselor called the Fontana School District police, and they interviewed B. concerning the incidents.

At trial, B. was unable to recognize defendant as the man she knew as Tom who had molested her in August 1996. However, she testified that defendants voice and facial expressions were like those of the man who molested her, after defendant was required to read something aloud from a newspaper. She also recalled that the man who molested her worked for Jimbos, which was where defendant worked. And, in early 1998, B. identified defendants photo from a photo lineup as the man who molested her.

B. also testified that the man who molested her had a scar above his belly button or on his chest. Defendant showed the jury his chest and abdomen, revealing a scar about three inches below the navel. B. said the scar was [v]ery similar to the scar on the man who molested her, and she was [p]retty confident defendant was the man who molested her.

B. Evidenceof Defendants Other Sexual Offenses

Before presenting B.s testimony to the jury, the prosecutor presented evidence of sexual offenses defendant committed against three other underage girls, pursuant to section 1108.^[2] These prior offenses involved Kyla C. in 1992, Stephanie K. on July 7, 1998, and Tammi C. in the early 1980s.

1. The Kyla C. Incident

Kyla C. was born in August 1978. She testified that around 11:00 p.m. on September 4, 1992, when she was 14 years old, she was sitting on a park bench. A car driven by defendant passed by, made a U-turn, and pulled into the parking lot of the park. Defendant got out of the car and approached Kyla on the bench. He sat next to her, grabbed her hand, and insisted they get into his car to talk. Kyla was not comfortable with defendant on the bench, but she got in his car with him.

Six police cars went by while Kyla and defendant sat in defendants car. Defendant remarked that there were a lot of police around, and his car was not registered. He asked Kyla whether she wanted to go somewhere else, and she said she wanted to go home. She tried to open the car door, but the electronic car doors were locked.

Defendant drove to Jimbos Auto Wrecking and parked his car there. He took Kyla by the hand and began to fondle her breasts through her shirt. She told him he was too old, and she wanted to go home. Pulling her toward him so her shoulder was on his lap, he unbuttoned her pants and fondled her vaginal area. He reclined the seat, and lay on top of her. He put her hand into his pants on his penis, inserted his finger in her vagina, and told her to jack him off. He moved her, put his face between her legs, and told her she did things his girlfriend did not do.

Kyla cried and kicked, and defendant put the seat up and began to drive. He told Kyla not to tell anyone, because he knew where she lived and where she went to school. He showed her where he lived. He taunted her, telling her she liked it, too. Finally, he dropped her off near the park. The parties stipulated that, as a result of the Kyla C. incident, defendant was charged with, and pled guilty to, a lewd act on a child and was sentenced for the crime.

2. The Stephanie K. Incident

Stephanie K. was born in September 1981. She knew defendant because he had dated her aunt for several years. Before July 7, 1998, he had made sexually suggestive remarks to her, like could he lick her, and he asked her when he could get into her bed. At around 9:00 a.m. on July 7, 1998, Stephanie arrived at defendants house to clean it. She was not expecting defendant to be home, but when she arrived she realized he was in the house asleep in bed. After she cleaned the house for the better part of the day, there was a phone call for defendant. She woke him and he took the call.

After the phone call, Stephanie told defendant she had a headache and asked him to take her home. Instead of taking her home, he gave her two pills. She did not want to take the pills, but took them anyway. She became weak and drowsy and went to sit in a chair in the living room. Defendant stood over her and started to touch her breasts with one hand in a squeezing motion. She told defendant to stop touching her, and he stopped, but only for a while. He left the house, saying he was going to a pharmacy, and locked her inside. She called her mother. Shortly after defendant returned, her mother and boyfriend arrived to take her home.

Stephanie told her mother and boyfriend that defendant had touched her breasts. They took her to her grandmothers house and then to a hospital emergency room, because she was unable to walk and her vision was blurred. The parties stipulated that Stephanie went to an emergency room on July 7, 1998.

3. The Tammi C. Incident

Tammi C. was born in February 1970. She met defendant at a roller skating rink in the early 1980s. They were introduced by a mutual friend, Eddie Getchius. She did not like defendant, but he came to her house once because she had invited Eddie to her house and defendant drove Eddie there. Several weeks after defendant came to her house, he came through her bedroom window during the night. She awoke to find him on top of her, and he raped her. She did not report the rape, because she was ashamed and afraid it would disappoint her parents.

Several weeks after the rape, defendant came through Tammis window again, and she got out of bed and ran screaming to her parents. The police were called and came to the house. Tammi told the police about the second incident but not about the first, and when she testified in court in an earlier proceeding she did not tell about the rape. She denied she ever invited defendant to come to her house or enter through her window.

C. Defense Evidence

Defendant did not testify. He presented several witnesses who contradicted the claims of Tammi C. and Stephanie K., and impeached the testimony of B. He did not present any evidence contradicting the claims of Kyla C.

1. Evidence Refuting Claims of Tammi C.

At the time of trial, Eddie Getchius was known as Eddie Holmes. He testified that once in 1983, when he, defendant, and Tammi C. were together at the roller skating rink, Tammi invited defendant to her house, saying her parents would be asleep about 1:00 or 2:00 a.m. and she would leave a window open. Eddie drove defendant to Tammis house, but he did not know what happened after that.

Gary Woods, a retired San Bernardino County Sheriffs sergeant, investigated the Tammi C. incident in 1983. Defendant told Woods he went to Tammis house because Eddie told him Tammi was expecting him and a window would be open. Tammi told Woods she had not had any sexual contact with defendant.

2. Evidence Refuting Claims of Stephanie K.

Shayne Keys testified she had known defendant for 15 years and had five children by him. She was not married to defendant, however. On a weekday in July 1998 ‑‑ she was not sure of the exact day ‑‑ Keys accompanied defendant to Las Vegas to deliver a transmission for Jimbos Auto Wrecking. They left San Bernardino about 5:00 a.m., dropped off the transmission in Las Vegas, had breakfast, did some gambling, then drove home, arriving in the middle to late afternoon. Defendant took Keys home and went to Jimbos Auto Wrecking to deliver the money he had collected for the transmission.

James Cutter, the owner of Jimbos Auto Wrecking, testified he had reviewed his records and was certain defendant delivered a transmission in Las Vegas on July 7, 1998. Thus, Cutters and Keyss testimony showed that defendant could not have molested Stephanie K. in his home on July 7, 1998, as Stephanie K. had testified.

3. Evidence Impeaching B.s Testimony

San Bernardino County Sheriffs Deputy Maggie Finneran testified she interviewed B. at her school in January 1998 concerning her allegation that defendant had molested her. She asked B. whether anyone else had done anything like that, and B. responded that her father had come real close. Finneran understood B. as meaning that her father had come real close to molesting B.

However, B. also told Finneran that her father had molested her older sister. And in her trial testimony, B. denied telling anyone her father had come real close to molesting her, meaning B. B. said [t]hat wasnt me, and I believe this was my sister.

III. DISCUSSION

A. The Trial Court Properly Refused to Admit Defendants Proffered Evidence That B. Falsely Accused Another Man, Chester Stewart, of Attempting to Molest Her

Defendant sought to impeach B.s trial testimony by introducing evidence that she had falsely accused another man, Chester Stewart, of attempting to molest her on December 15, 1997. The trial court refused to admit the evidence on the grounds it was unduly time consuming in relation to its probative value, and it would confuse the issues. ( 352.)

Defendant contends the trial court abused its discretion in excluding the evidence under section 352 and deprived him of his state and federal constitutional right to introduce evidence in his defense. He argues the evidence was relevant to the truthfulness of B.s allegations against him, was admissible under section 1103, and was not subject to the procedural requirements of section 782.

Although we agree with defendant that the evidence was admissible under section 1103 and was not subject to the procedural requirements of section 782, we conclude the trial court did not abuse its discretion in excluding the evidence under section 352.

1. Defendants Offer of Proof

Defense counsel made an offer of proof that B. would testify that on December 15, 1997, when she was 12 years old, she was walking to school at around 6:45 a.m. She saw a male whom she believed was 15 or 16 years old. The male approached B. and asked her name. She told him her name was B. He told her his name was Jesse, and that he went to high school. He asked B. where she went to school, and she told him. He then asked B. whether she had a boyfriend, and she said no. He asked B. whether she wanted a boyfriend, and she replied, I dont know.

Jesse told B. he knew a shorter way to get to school. B. followed him to some stairs near a boarded-up building. Jesse pulled B. toward him, hugged her, and asked her for a kiss. B. told Jesse no and pulled away from him. Jesse asked B. whether she had ever had sex, whether she had ever given head, and whether she knew what that meant. B. replied that she had not had sex, was not interested in having sex, and, although she knew what giving head meant, she had never done so and did not want to do so. Jesse told B. he would not make her do that. B. then walked to her school, and Jesse walked in another direction.

B. was expected to identify Jesse as Stewart. B. had never seen Stewart before December 15, and never saw him again. After B. arrived at school on December 15, she told her school counselor about the incident involving Stewart and the matter was reported to the Fontana School District police. During the same conversation, B. told the counselor that defendant had molested her in August 1996.

At the time of trial in 2002, Stewart was in Corcoran prison for committing lewd acts on a child. (Pen. Code,  288, subd. (a).) Stewart was expected to deny that the incident with B. occurred. Defense counsel said he did not intend to call Stewart to testify that B.s accusation was false, however, because Stewart would be impeached with his lewd act conviction.

Instead, defense counsel intended to call Stewarts friend, Keon Vaughn. Vaughn was expected to testify that he was with Stewart between 6:00 and 7:15 a.m. on December 15, 1997; the two of them walked to school together and went to first period class together; and they did not see B. that morning. Thus, Vaughn was expected to give Stewart an alibi and show that B. had falsely accused Stewart of attempting to molest her.

2. The Trial Courts Ruling

The prosecutor objected to the admission of the evidence under sections 352 and 782. Defense counsel argued the evidence was not subject to the affidavit and in camera hearing requirements of section 782, because it did not involve any sexual conduct on the part of B., only a false accusation of molestation. The prosecutor argued that the jury could construe the evidence as involving sexual conduct on the part of B. based on her willingness to accompany Stewart to an abandoned building.

Without ruling on the issue, the court indicated it did not believe the evidence was subject to the requirements of section 782. Instead, the court excluded the evidence under section 352. Because Stewart was not going to testify, the court reasoned that the issue of whether B. had falsely accused Stewart of attempting to molest her would become a trial within a trial. The court expressly found that the probative value of the evidence was substantially outweighed by the probability that its admission will necessitate an undue consumption of time.

In response to the ruling, defense counsel said he would be willing to call Stewart if that would change the courts ruling. The court responded that, although the matter would be more confusing to the jury if Stewart did not testify because the jurors would be wondering Where is this person who has been accused?, the court said it would still make the same [section] 352 analysis of the trial within a trial even if defense counsel proposed to call Stewart. After defense counsel reiterated his offer of proof for the record, the court ruled the offer of proof just reinforces the Courts [section] 352 analysis in that it would be time consuming.

3. Analysis

Defendant contends the evidence that B. had falsely accused Stewart was relevant to the truthfulness of B.s allegations against him, was admissible under section 1103, and was not subject to the procedural requirements of section 782. He further contends that the trial court abused its discretion in excluding the evidence under section 352, and the exclusion of the evidence deprived him of his state and federal constitutional right to introduce evidence in his defense.

First, we agree with defendant that the proffered evidence was relevant because it had a tendency in reason to prove that B. was not being truthful in accusing defendant of molesting her in August 1996. ( 210.) Evidence that B. falsely accused Stewart of attempting to molest her, if believed, would have undermined B.s credibility in accusing Stewart of molesting her, particularly because B. did not accuse defendant of molesting her until December 15, 1997, the same day the defense claimed she falsely accused Stewart.

We also agree that the proffered evidence of B.s false accusation against Stewart was admissible under section 1103.^[3] The statute provides that evidence of the character or a trait of character (in the form of . . . evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101^[[4]] if the evidence is . . . [o]ffered by the defendant to prove conduct of the victim in conformity with the character or trait of character. ( 1103, subd. (a).) Evidence that a crime victim has falsely accused someone of committing the same crime the victim is accusing the defendant of committing is a specific instance of conduct that tends to show the victim is also falsely accusing the defendant. (People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 598-599, and cases cited.)

We also agree with defendant that the proffered evidence was not subject to the affidavit and in camera hearing procedures of section 782.^[5] The People argue that, notwithstanding the trial courts failure to rule on the issue, defendant was required to comply with the statute and his failure to do so means he has forfeited his claim on appeal. (People v. Sims (1976) 64 Cal.App.3d 544, 553-554.)

Section 782 applies only when evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness . . . . ( 782, subd. (a), italics added.) The phrase sexual conduct is to be broadly construed (People v. Casas (1986) 181 Cal.App.3d 889, 895), and encompasses any behavior that reflects the actors or speakers willingness to engage in sexual activity. (People v. Franklin (1994) 25 Cal.App.4th 328, 334.) The People view the evidence of B.s accusation against Stewart as reflecting a willingness on her part to engage in sexual activity, because it showed she was willing to accompany a stranger, Stewart, to a boarded-up building and have a sexual discussion with him.

But as defendant argues, he was not proposing to impeach B.s claims against him based on her sexual conduct, but based on her false accusation against Stewart. Here, as in People v. Franklin, supra, 25 Cal.App.4th at page 335, [t]he instance of conduct being placed before the jury as bearing on credibility is the making of the false statement, not the sexual conduct which is the content of the statement. For this reason, section 782 did not apply.

Nevertheless, the trial court did not abuse its discretion in excluding the evidence under section 352. Under section 352, a trial court 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. We review a trial courts decision to exclude evidence under section 352 for an abuse of discretion. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)

As the trial court indicated, the proffered evidence of B.s false accusation against Stewart would have consumed an inordinate amount of time in relation to its probative value. If Stewart had testified and denied he attempted to molest B., his lewd act conviction (Pen. Code,  288) would have been admissible not only to impeach his credibility, but to show he was a child molester. (Evid. Code,  1108.) Even if only Vaughn had testified, providing Stewart with an alibi, it is still highly probable that the prosecution would have been able to present evidence of Stewarts lewd act conviction. (Evid. Code,  1101, subd. (b).)^[6] In either event, the credibility of Stewarts and Vaughns denials of the accusation would have been seriously undermined. As a result, it is highly likely that defendants attempt to impeach B. would have failed. And yet, the exercise would have taken an inordinate amount of trial time and would have risked distracting the jury from the central issue in the case: whether B.s accusations against defendant were true or false. Anticipating this scenario, the trial court properly excluded the evidence.

For the same reasons, it is not reasonably probable defendant would have realized a more favorable result had the evidence been admitted. (People v. Burrell-Hart, supra, 192 Cal.App.3d at p. 600 [applying Watson^[7]standard of review to erroneous exclusion of false accusation evidence].) Furthermore, the proffered evidence would not have detracted one iota from the credibility of the evidence that defendant committed similar sexual offenses against three other underage girls, namely Kyla C., Stephanie K., and Tammi C., and the concomitant, permissible inference that defendant committed at least one similar offense against B.

Nor did the exclusion of the evidence deprive defendant of his constitutional right to present evidence in his defense. Although a criminal defendant is constitutionally entitled to present all relevant evidence of significant probative value in his favor, this does not mean the court must allow an unlimited inquiry into collateral matters; the proffered evidence must have more than slight relevancy. (People v. Marshall (1996) 13 Cal.4th 799, 836.) Because the evidence of B.s false accusation against Stewart was of scant probative value in light of Stewarts prior lewd act conviction, its exclusion did not deprive defendant of his constitutional right to present evidence in his defense.

B. The Admission of Evidence of Defendants Other Sexual Offenses Did Not Violate Defendants Due Process Rights

Defendant further contends the trial court violated his federal due process rights by admitting evidence of his other sexual offenses against underage girls under section 1108 and by instructing the jury it could find this evidence true by a preponderance of the evidence. Defendant raises these claims to preserve them for federal review. He acknowledges the California Supreme Court has rejected identical claims in People v. Falsetta, supra, 21 Cal.4th 903 at pages 912 through 917 and People v. Reliford, supra, 29 Cal.4th at page 1016. Because we are bound by the decisions (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455), we reject defendants identical claims.

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Miller

J.

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^[1] All further statutory references are to the Evidence Code unless otherwise indicated.

^[2] Section 1108 provides that: (a) 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 Section 1101, if the evidence is not inadmissible pursuant to Section 352.

^[3] Indeed, all relevant evidence is admissible unless excluded under the federal or state Constitutions or by statute. ( 351; see also Cal. Const., art. I,  28, subd. (d); People v. Heard (2003) 31 Cal.4th 946, 972-973.)

^[4] Section 1101 prohibits the admission of evidence of a persons character or trait of character to prove the persons conduct on a specific occasion, but the statute does not apply to evidence that is offered to support or attack the credibility of a witness. ( 1101, subds. (a), (c); People v. Mizchele (1983) 142 Cal.App.3d 686, 691.)

^[5] Section 782 applies to various sex crime prosecutions, including alleged violations of section 288. ( 782, subd. (c)(1).) Under the statute, if evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness under Section 780, the defense must make a written motion to the court and the prosecutor stating its offer of proof and explaining the relevancy of its proffered evidence to the credibility of the complaining witness. (Id., subds. (a)(1), (b)(1).) The court is then required to determine whether the proffered evidence is sufficient to warrant a hearing outside the presence of the jury, and if so, allow the prosecutor to examine the witness. (Id., subd. (a)(2), (3).) Following this procedure, the court must determine whether and to what extent the proffered evidence regarding the sexual conduct of the witness is relevant under section 780 and not inadmissible under section 352. (Id., subd. (a)(4).)

^[6] Because Stewarts lewd act conviction must have involved a child under age 14, and B. was age 12 when Stewart allegedly attempted to molest her, the prosecution probably would have been able to admit the evidence to show common scheme, plan or design under section 1101, subdivision (b). (See People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.)

^[7]People v. Watson (1956) 46 Cal.2d 818, 836.