California Court of Appeal Jun 15, 2015 No. E058329Unpublished
Filed 6/15/15 P. v. Bolduc 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE,
Plaintiff and Respondent, E058329
v. (Super.Ct.No. SWF10000399)
WILLIAM ROBERT BOLDUC, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Kelly L. Hansen, Judge.
Affirmed.
Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H.
Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant William Robert Bolduc guilty of (1) raping
Jane Doe 1 (JD1), while she was prevented from resisting due to an intoxicating,
JD1, while she was prevented from resisting due to an intoxicating, anesthetizing, or
controlled substance (former § 289, subd. (e)); and (4) two counts of engaging in oral
copulation or sexual penetration with Jane Doe 2 (JD2), a child under the age of 10
(§ 288.7, subd. (b)).2
After the verdicts, the charges related to JD2 were reduced to the lesser included
offense of participating in an act of sexual penetration with a person under 14 years of
age, who is more than 10 years younger than the offender. (Former § 289, subd. (j).)
Defendant and the prosecutor stipulated to defendant serving a 16-year term in prison,
and the trial court imposed the 16-year term.
Defendant raises seven issues on appeal. First, defendant contends there is not
substantial evidence to support the three convictions pertaining to JD1. Second,
defendant asserts his right of due process was violated when he moved the court for a
mistrial, the trial court refused to rule on the motion, the trial court explained to the
prosecutor how to cure the alleged error, and then the court permitted the prosecutor to
1 All further statutory references are to the Penal Code unless indicated.
2 The jury found defendant not guilty of two counts of committing a lewd or lascivious act upon John Doe, a child under the age of 14 years. (§ 288, subd. (a).) The trial court granted a judgment of acquittal (§ 1118.1) on a charge that defendant used a concealed camera to photograph a person in a state of full or partial undress (former § 647, subd. (j)(3)(A)).
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reopen the case. Third, defendant contends the trial court erred by admitting evidence
of prior, uncharged, sexual offenses. (Evid. Code, § 1108.)
Fourth, defendant asserts the trial court erred in how it instructed the jury
regarding the uncharged sexual offense evidence. (CALCRIM No. 1191.) Fifth,
defendant contends the allegedly problematic instruction (CALCRIM No. 1191)
lowered the prosecution’s burden of proof, which resulted in a denial of due process.
Sixth, defendant contends the trial court violated his right to a fair trial by admitting
various pieces of evidence that were highly prejudicial. Seventh, defendant asserts the
cumulative impact of the foregoing alleged errors resulted in a denial of due process.
We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. CHARGED OFFENSES
1. FACTS RELATED TO JD1
In July 2009, JD1 and defendant met via an online dating website. JD1 was 35
years old and resided in Murrieta. Defendant was 54 years old, employed as a fireman,
and resided in San Diego. JD1 and defendant’s relationship became sexual.
Defendant’s sexual proclivities were different than JD1’s sexual proclivities. For
example, defendant wanted to engage in anal intercourse, “threesomes,” and use sexual
toys, while JD1 was not interested in such things. One time during their relationship,
JD1 consented to anal intercourse; however, she found it painful so they stopped. JD1
told defendant she did not enjoy anal intercourse and did not want to do it again.
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During their relationship, defendant often spoke about sex. Defendant
continually tried to persuade JD1 to engage in sexual activities with which she was
uncomfortable. Defendant wanted to engage in sexual intercourse every day, but JD1
did not feel the same. JD1 and defendant argued about sexual issues, such as the
frequency with which they engaged in sexual intercourse.
In October 2009, defendant and JD1 attended an event at the fire station where
defendant worked. The event was attended by “a lot of people,” including defendant’s
coworkers. During the event, defendant proposed marriage to JD1. JD1 did not want to
marry defendant, but said yes to his proposal because she felt pressured by the situation.
In late November or early December 2009, JD1 suffered an infected wisdom
tooth. JD1 went to an oral surgeon, Dr. Smith, to have the tooth extracted. Dr. Smith
required that JD1 have another person drive her home after the surgery. JD1 arranged
to have defendant escort her home following the tooth extraction.
On December 9, during the oral surgery appointment, Dr. Smith administered
several drugs to JD1. Dr. Smith gave JD1 10 milligrams of Valium, in order to ease
JD1’s anxiety related to the surgery. JD1 was given Versed intravenously; it is a
controlled substance. Versed is like Valium but more potent and shorter-acting. Versed
causes deep sedation and can cause memory loss. The memory loss relates to events
that occur while under the effects of the drug. For example, a person may forget a
conversation she has while under the effects of the drug. A comparison could be made
to being drunk, and blacking out a portion of what occurred while inebriated. JD1 was
also given Fentanyl, which is a short-acting highly-controlled narcotic. Fentanyl blocks
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pain and deepens sedation. JD1 was also given a local anesthetic. Dr. Smith opined
JD1 could be affected by the sedatives for up to four hours.
JD1’s surgery lasted from approximately 2:20 p.m. to 2:51 p.m. JD1 had no
memory of her tooth being extracted. When JD1 was discharged from Dr. Smith’s care
she was moved via wheelchair to defendant’s vehicle. At the time of discharge, JD1
was “‘alert and talking,’” which, in medical terminology, meant JD1 was not
completely asleep when taken to the vehicle; JD1 was still in a state of “light sedation.”
JD1 remembered being wheeled out to defendant’s vehicle, but did not remember
the ride home. JD1’s home was 20 to 25 minutes from Dr. Smith’s office. Defendant
carried JD1 up the stairs at her residence. JD1 felt weak and lethargic. JD1 recalled
sitting up in her bed. Defendant asked if JD1 wanted to wear more comfortable
clothing. JD1 asked for her pajamas. JD1’s next memory was of laying in her bed in
her bra and panties. JD1 recalled feeling cold and hearing “clickings,” like a camera
shutter. JD1 remembered being under a blanket, lifting her head, and seeing the bottom
of her blanket being raised.
JD1’s next recollection was of feeling as though some “force” was rolling her
onto her stomach. JD1 recalled feeling someone on the back of her legs and pressure in
her vagina and anus. JD1 did not have the energy or ability to respond to what was
happening to her. JD1’s next memory was of defendant offering to get her medication
and a milkshake; defendant left to get the items.
At 5:00 or 5:30 p.m., JD1 left her bed and walked to the restroom. At that point,
JD1 was wearing pajamas. While walking, JD1 felt pain in her anus. Prior to urinating,
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JD1 felt semen descend down her leg. JD1 still felt tired and had gauze in her mouth.
JD1 believed she “was taken advantage of sexually without any consent.”
When defendant returned to the residence, he fed a milkshake to JD1 because she
did not have the energy to feed herself. Defendant sat on JD1’s bed and said, “‘Did you
know you said you wanted to have sex?’” JD1 responded, “‘Are you kidding me? I just
had oral surgery. There’s no way I would want that.’” Defendant said, “‘Yes, you did.
You just don’t remember.’” Defendant lay on the bed with JD1. Defendant kissed JD1
and attempted to “make out” with her. JD1 pushed defendant away and said, “‘Are you
kidding me? You know, I’m in pain. I just had oral surgery.’” Defendant became
upset and walked out of the bedroom. JD1 said, “‘Get out of my house. I know what
you did to me.’” Defendant left the residence, in order to feed his dogs.
At approximately 7:00 p.m., defendant returned to JD1’s home. JD1 was more
alert, but still had gauze in her mouth and was in pain. JD1 confronted defendant. JD1
asked defendant if they engaged in sexual intercourse. Defendant said they did not.
JD1 told defendant she recalled hearing a clicking sound, and accused defendant of
photographing her. Defendant “kept denying it,” told JD1 she “was crazy,” and said she
“wanted to have sex.”
At one of the points when defendant was away from JD1’s residence on
December 9, JD1 called defendant’s telephone and attempted to leave a voicemail
message, but defendant’s voicemail was not set-up, so the message “bounce[d] back” to
JD1’s telephone. In the message, JD1 said defendant “took advantage” of her and she
did not want him “around [her] anymore.” JD1 told defendant, in the message, “You
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can’t, you can never stay away from me, sexually, even knowing I’m in pain and I just
came out of surgery. You are sick. You have a sick mind. Go use it on someone else.
Stay the hell away from me.”
Later on the night of December 9 and/or the following day, defendant called JD1
and sent her e-mails. Defendant said and wrote that JD1 “was crazy” because “it never
happened.” JD1 began to feel as though “maybe it didn’t happen.” On December 10
JD1 told her therapist that defendant engaged in sex with her without her consent, and
that she believed defendant photographed her while she was incapacitated. JD1’s
therapist advised her to end the relationship, report defendant, and stay with a relative.
JD1 did not immediately report defendant because she “just didn’t know what to do,” in
part because of the messages defendant left her saying he loved her and “would never
do that to [her].” Two days after the oral surgery, JD1 took defendant with her to a
Christmas party. JD1 took defendant to the party because her coworkers were expecting
him to attend, and she did not want her coworkers to worry about her.
On December 15 JD1 ended her relationship with defendant. JD1’s cousin was a
fire chief. JD1 contacted her cousin, who told her to contact the police. JD1 called the
police. A police officer went to JD1’s house, where JD1 reported the December 9th
assault. On December 16 Detective Dorcas requested JD1 make pretext telephone calls
to defendant, in order to record defendant confessing to the assault. Defendant did not
make any admissions during the pretext telephone calls.
During JD1 and defendant’s relationship, on December 6th, defendant purchased
a new mobile telephone from Best Buy. On December 11th, defendant returned the
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mobile telephone to Best Buy. Best Buy gave defendant’s returned telephone to
Detective Dorcas. Agent Jarvis, of the Murrieta Police Department, performed a
forensic analysis on the telephone. Jarvis located 24 photographs on the telephone. A
second forensic investigation of the telephone uncovered a total of approximately 50
photographs. The photographs had been deleted from the telephone, but still existed on
the telephone’s digital memory card.
It appeared, from the telephone’s data, that the photographs were taken on the
afternoon of December 9th. The photographs included (1) JD1 asleep in defendant’s car
following her surgery; (2) JD1’s vagina, wherein she is under a blanket, but the bottom
of the blanket has been lifted to expose her genitalia; (3) JD1’s buttocks, where it also
appears she is on a bed; and (4) JD1’s anus. There were also photographs of a finger
penetrating a vagina, and what appears to be a penis penetrating a vagina. At trial, JD1
cried on the witness stand, and the prosecutor did not ask her to identify herself in the
penetration photographs. JD1 did not remember the photographs being taken, and she
did not consent to being subjected to such photographing.
2. FACTS RELATED TO JD2
In late May 2004, on Memorial Day, defendant met Laura Bolduc.3 At that time,
Laura was in the process of divorcing her husband, Tom T. Laura and Tom T. shared
three children: (1) S.; (2) John Doe; and (3) JD2. S. was the oldest. John Doe was the
3 Laura’s last name is the same as defendant’s last name. We use her first name for the sake of clarity, no disrespect is intended.
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middle child. JD2 was the youngest child; she was born in October 2002. Laura was an
alcoholic.
When they met, Laura and defendant began dating; their relationship became
sexual within the first week. In November 2004, defendant and Laura began living
together with Laura’s three children. Laura and defendant married in August 2005.
Immediately after the wedding, defendant became more controlling over Laura. For
example, defendant would only permit Laura to speak to certain people and eat certain
foods. Laura and the children were restricted from communicating with Tom T.
Defendant expected to engage in sexual intercourse four to five times per day.
Laura did not want to engage in sexual intercourse that frequently. Defendant and
Laura argued about sex. At times, defendant would wake Laura in the middle of the
night and engage in sexual intercourse with Laura, without asking her.
Around Christmas in 2005, the children visited Tom T. in Idaho, where he
resided. The children brought two disposable cameras with them. One of the cameras
had been partially used, in that some photographs had already been taken with the
camera. During the children’s visit, Tom T. took photographs with the partially used
camera. Tom T. took the camera to a store to have the pictures developed. When Tom
T. went to the store to retrieve the photographs, he was informed the pictures had been
given to the police.
Tom T. went to the police station. A police officer showed Tom T. photographs
of JD2 and John Doe. Two photographs reflected the two children bent over, displaying
their naked buttocks. Another photograph showed JD2 from the front, wearing a shirt,
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but her genitals were exposed. Tom T. explained to the police that the photographs
were not taken at his residence, he did not take the photographs, and some photographs
had been taken with the camera prior to the children arriving in Idaho. Tom T. told the
police officer it was possible S., the oldest child, had been the photographer, since she
did not appear in the photographs. The police officer gave Tom T. the photographs.
Tom T. kept the photographs in case there were any problems in the future related to his
military security clearance due to being questioned by the police.
In October 2006, Laura called Tom T. so he could help her and the three children
move away from defendant, due to the situation between Laura and defendant becoming
“so bad.” Laura and her children moved while defendant was at work. They went to
Boise, Idaho, where Tom T. lived. Laura lived in a shelter in Boise, while the children
lived in Tom T.’s home. Eventually, Laura returned to the house she shared with
defendant, in California, but her children remained in Idaho with Tom T. When Laura
returned, defendant began frequently taking sexual photographs of Laura.
The three children appeared happy when they moved to Idaho. After
approximately six months, JD2 began lying “about everything.” Additionally, JD2 was
“always” crying. Tom T. asked JD2 why she was lying, but JD2 said she did not know.
In 2009, Tom T. learned, from reading information on the internet, that defendant was
charged with raping his fiancée (JD1). Within days, Tom T. told his children defendant
had been arrested for being sexually “inappropriate.”
Approximately one year passed, and JD2 was still lying on a regular basis. Tom
T. again asked JD2 why she was lying. JD2 began sobbing. JD2 said defendant
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touched her while she was living with Laura and defendant. Tom T. took JD2 to a
counselor. After JD2 met with the counselor, the counselor informed Tom T. that she
was required by law to report JD2’s allegation. The counselor contacted police. Police
in California contacted Tom T.
Police interviewed JD2. JD2 was eight years old during the 2011 interview.
During the interview JD2 said that, when she was approximately three years old, she
awoke to defendant’s tongue entering her mouth. Defendant also touched JD2’s
genitalia with his hands, sometimes over her underwear, but other times defendant
removed her underwear. Defendant digitally penetrated JD2’s vagina and anus. On
some occasions, defendant grabbed JD2’s hand and caused her to rub his chest, his
thighs, buttocks, and his penis. Defendant’s clothes were typically removed, so JD2 had
direct contact with defendant’s skin. The touching typically started when JD2 was
napping, so she would pretend to be asleep when defendant touched her.
JD2 testified at trial. JD2 was nine years old at the time of trial. JD2 said
defendant touched her genitalia. JD2 confirmed she told the truth during the police
interview.
B. UNCHARGED OFFENSES (EVID. CODE, § 1108)
1. JANE DOE 3
Jane Doe 3 (JD3) was defendant’s biological sister. JD3 was eight years younger
than defendant. JD3 was born in 1963. JD3 recalled four separate instances of
defendant touching her in a sexual manner when she was six, seven, and/or eight years
old. One instance occurred during a game of hide-and-seek. Defendant held JD3 down,
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pulled down JD3’s pants, and orally copulated her. During another instance, defendant
covered JD3’s face with a sheet, rubbed his penis on her, spit on her vagina, and
ejaculated into a sock. JD3 also recalled a time when defendant purchased a bra, told
JD3 to wear the bra, and said “he wanted [JD3] to French kiss him.” When JD3 refused
to kiss defendant, he said, “‘This is what an older brother is supposed to do to his
sister.’”
Around 1990, when JD3 was an adult, she told her mother about the foregoing
incidents involving defendant; her mother discouraged JD3 from reporting the abuse.
JD3 did not know why she did not tell anyone about the sexual touching when she was
younger. When defendant was arrested in the instant case, her father informed JD3 that
defendant had been arrested for rape. JD3 told her father that she was not surprised, and
then researched the details of the allegations online. JD3 posted, in the comments of an
online article, “‘You finally got caught.’” A reporter put JD3 in contact with law
enforcement.
2. JANE DOE 4
Jane Doe 4 (JD4) and defendant were cousins. JD4 was 42 years old at the time
of trial. In 1984, when JD4 was 14 years old and defendant was approximately 27 years
old, the two were floating on a lake. Defendant moved his foot along JD4’s leg, up to
her vagina. Defendant’s toes moved underneath JD4’s bathing suit.
On other occasions, defendant invited JD4 over to babysit defendant’s son.
Defendant picked JD4 up for babysitting, but took her to empty homes that he knew
were empty due to the family’s real estate business. Defendant told JD4 she could be a
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model, and took “a lot” of photographs of her. Defendant and JD4 engaged in sexual
intercourse approximately six times. JD4 said she willingly engaged in intercourse with
defendant.
In 1984, JD4 told another cousin, also a teenager, about her interactions with
defendant. When JD4 was 19 years old, she told her boyfriend about her interactions
with defendant. In 2002, JD4 told defendant’s mother about her interactions with
defendant. In 2011, JD4 told her own mother about her interactions with defendant.
When JD4 heard about the instant case, she wrote a letter to Detective Dorcas.
3. Jane Doe 5
Jane Doe 5 (JD5) was married to defendant.4 JD5 and defendant met in 2001,
when JD5 was 28 years old. When they met, JD5 was living with an abusive man.
Defendant offered to help JD5. Defendant confronted the abusive man. JD5 stayed
with defendant at defendant’s mother’s house. Immediately upon JD5 moving in,
defendant and JD5 began a sexual relationship. Two weeks after meeting, defendant
and JD5 married. JD5 contracted herpes from defendant, so she married him, in part, to
use his insurance.
During the herpes medical examination, the person examining JD5 said, “‘What
has he been doing to you?’ [¶] . . . You’ve got to get out of that. Like, ‘I’ve never seen
this.’” When leaving the examination, JD5 realized she “probably made the biggest
4JD5 was unable to identify defendant in court. When asked to look in defendant’s general direction, JD5 said, “Is that him? He looks a lot different.” However, she did say she was married to William Bolduc, who was a fireman.
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mistake of [her] life” by marrying defendant. Three weeks into the relationship with
defendant, JD5 began feeling frightened due to defendant constantly following her and
asking where she was going. Also at the three week mark, JD5 told defendant she was
not comfortable with some of defendant’s sexual activities.
At times, JD5 awoke to defendant engaging in intercourse with her. JD5 would
awake to defendant “putting his penis in every orifice [she] had.” Sometimes JD5
would say “‘no’”; however, defendant “wore [her] down,” in that “[a]rguing with him
was a futile and exhausting endeavor.” JD5 explained that the arguments were
exhausting because defendant “didn’t listen to ‘no.’ He didn’t hear ‘no.’ He didn’t act
on ‘no.’ Everything . . . was to meet his needs—always. He was insatiable really.”
When JD5 said no or “stop,” defendant did not stop; defendant held JD5 down and
continued to engage in sexual intercourse.
Defendant wanted to engage in sexual intercourse with JD5 “numerous times”
throughout the day. Defendant enjoyed engaging in sexual intercourse when JD5 was
sleeping or “on the edge of sleep.” JD5 estimated that she awoke on a daily basis to
defendant engaging in sexual intercourse with her.
JD5 separated from defendant, but defendant stalked her. Defendant threatened
to humiliate JD5 by sending nude photographs of her to her employer. Defendant did
send the nude photographs of JD5 to JD5’s friends and family. JD5 filed for a
restraining order against defendant. JD5 filed for divorce three or fourth months into
the marriage. JD5 learned about the instant criminal case pending against defendant,
and then researched details of the case online. JD5 contacted Detective Dorcas.
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C. DEFENSE
Defendant testified at trial. Defendant admitted engaging in sexual intercourse
with JD1 on December 9th, but asserted it was consensual. Defendant explained JD1
was alert and awake when they engaged in intercourse. Defendant denied sexually
Dist., Div. Two].) That means the three statutes require “only that the level of
intoxication be such that the victim is incapable of exercising the judgment required to
decide whether to consent to intercourse.” (Id. at p. 464.)
Dr. Smith, JD1’s oral surgeon, testified that JD1 was given Valium, Versed, and
Fentanyl. Valium is an anti-anxiety drug. Versed causes deep sedation. Fentanyl is a
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“very potent” narcotic that deepens sedation. Dr. Smith opined JD1 could be affected
by the sedatives for up to four hours. JD1’s surgery lasted approximately 31 minutes,
from 2:20 p.m. to 2:51 p.m.
When JD1 left the surgeon’s office, she was moved via wheelchair to
defendant’s vehicle; she was in a state of “light sedation.” JD1’s home was 20 to 25
minutes from Dr. Smith’s office. Defendant carried JD1 up the stairs at her residence.
While in bed, JD1 felt as though a “force” rolled her onto her stomach. JD1 felt
someone on the back of her legs and pressure in her vagina and anus. JD1 did not have
the energy or ability to respond to what was happening to her. Later, defendant offered
to get JD1 medication and a milkshake; defendant left to get the items. At 5:00 or 5:30
p.m., JD1 left her bed and walked to the restroom. While walking, JD1 felt pain in her
anus. Prior to urinating, JD1 felt semen descend down her leg. JD1 still felt tired and
had gauze in her mouth. JD1 believed she “was taken advantage of sexually without
any consent.”
When defendant returned to the residence, he fed a milkshake to JD1 because she
did not have the energy to feed herself. Defendant sat on JD1’s bed and said, “‘Did you
know you said you wanted to have sex?’” JD1 responded, “‘Are you kidding me? I just
had oral surgery. There’s no way I would want that.’”
The foregoing evidence reflects JD1 was under the effects of three different
drugs designed to relax and sedate her. The drugs had the potential to last until
approximately 6:00 p.m. Defendant had to carry JD1 up the stairs at her residence, and
JD1 had to be moved via a wheelchair to defendant’s car. This evidence reflects JD1
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was affected by the drugs because she could not move on her own. The various sexual
acts took place prior to 5:00 or 5:30, which was within the timeframe for JD1 to still be
affected by the drugs. Further, it appears she was still affected by the drugs because
defendant had to feed a milkshake to her due to JD1 being too weak to feed herself. All
this evidence comes together to create a picture of a victim who was too weak and
drugged to move.
A reasonable person could infer that if JD1 was too weak to move, then she was
also too intoxicated to exercise the judgment required to decide whether to consent to
intercourse. This inference is further supported by JD1’s statement to defendant after
the sexual acts occurred, wherein she said she explained there was “‘no way’” she
would have wanted to engage in sexual acts so soon after her surgery. This statement
supports the inference because it reflects that JD1, if she had been capable of exercising
judgment at the time, would not have consented to the sexual acts. Since the sexual acts
did occur, one could reasonably conclude JD1 was too intoxicated to exercise the
required judgment. Accordingly, we conclude substantial evidence supports the finding
that JD1 was prevented from resisting due to an intoxicating, anesthetizing, or
controlled substance.
Defendant contends the evidence is not substantial because the evidence does not
establish JD1 was intoxicated, rather, it only establishes she suffered periods of
amnesia. Defendant, relying on his own testimony, points to evidence reflecting JD1
was capable of walking and talking after her surgery and was only lightly sedated, to
support his assertion that JD1 was capable of exercising the necessary judgment. As set
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forth ante, under the substantial evidence standard of review, we must look at the
evidence in the light most favorable to the verdicts. (People v. Castaneda, supra, 51
Cal.4th at p. 1322.) Defendant is looking at the evidence in a light unfavorable to the
verdicts. As a result, we find his argument to be unpersuasive.
4. DEFENDANT’S BELIEF
The three crimes related to JD1 required that defendant knew or reasonably
should have known JD1 was prevented from resisting due to being intoxicated. (§§ 261,
subd. (a)(3), 286, subd. (i), 289, subd. (e).) Defendant asserts there is a lack of
substantial evidence for the knowledge element.
Defendant drove JD1 home from the surgeon’s office where she had surgery.
The evidence reflects JD1 was moved via wheelchair to defendant’s car. Photographs
show JD1 sleeping in defendant’s car after the surgery. Defendant carried JD1 up the
stairs at her residence. After the sexual acts occurred, defendant fed a milkshake to JD1
because she did not have the energy to feed herself.
From the foregoing evidence, a reasonable trier of fact could deduce that JD1’s
intoxication was apparent to defendant. Defendant would have known of JD1’s drug
intake because he accompanied her to the surgeon’s office. Defendant would have
known JD1 was affected by the drugs after she left the surgeon’s office because she
slept in the car and required assistance going upstairs. Since defendant knew JD1 was
intoxicated and having difficulty moving, a reasonable person could find defendant
knew, or reasonably should have known, that JD1 was prevented from resisting due to
being intoxicated. Further, one could reasonably find defendant knew JD1 remained
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intoxicated for hours after the surgery since he volunteered to get her medications and a
milkshake, and then fed her. Defendant’s acts with the medication and milkshake
reflect knowledge that JD1 remained too intoxicated to leave the house and feed herself.
It can be inferred that if defendant knew JD1 was too intoxicated to feed herself hours
after her surgery then he knew or reasonably should have known that, earlier in the
afternoon, she was prevented from resisting sexual acts due to her intoxication.
B. MISTRIAL MOTION
1. PROCEDURAL HISTORY
JD2 was nine years old at the time of trial. At the beginning of JD2’s testimony,
the prosecutor asked if JD2 was scared of defendant and if she was nervous. JD2
admitted she was both scared of defendant and nervous. The prosecutor then asked JD2
“easier” questions, such as whether she was on summer break from school and whether
she had any pets. The prosecutor asked if JD2 recalled going to a room and “talking to
a lady about things that happened with [defendant],” i.e. the forensic interview. JD2
said she recalled speaking to the lady about defendant.
The prosecutor said he would like to the play the video of the forensic interview.
The following exchange occurred:
“The Court: Is there any reason why [JD2] needs to remain on the stand?
“[Prosecutor]: I was going to—I was going to have her at the end of it articulate
if what was on that was correct.
“The Court: Haven’t you laid the foundation already?
“[Prosecutor]: I have. [¶] I will defer to the Court’s discretion.
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“The Court: Any objection?
“[Defense Counsel]: I have no objection to the witness being excused for the
playing of the video.”
JD2 left the witness stand, and the prosecutor played the video of JD2’s forensic
interview. When the video ended, court recessed for the weekend. When court
resumed, the prosecutor questioned JD2 about her weekend. JD2 said she went to an
amusement park. The prosecutor questioned JD2 about her experience at the
amusement park. The prosecutor then questioned JD2 about a picture JD2 drew during
the forensic interview. JD2 said the person in the picture with a sad face was JD2. JD2
said the prosecutor’s questions were making her sad and that they were hard to answer.
The prosecutor said he had no further questions.
Defense counsel requested a sidebar. Outside the presence of the jury, defense
counsel (Whelton) moved for a mistrial. Whelton requested the trial court find JD2 to
be unavailable because JD2 was unable to respond to questions and provide meaningful
answers. Whelton explained the video of the forensic interview had been introduced
pursuant to Evidence Code section 1360, which required corroborating evidence of the
alleged abuse.5 Whelton asserted there was no corroborating evidence in this case.
5 Evidence Code section 1360 provides, in relevant part: “(a) In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another . . . , is not made inadmissible by the hearsay rule if all the following apply: [¶] (1) The statement is not otherwise admissible by statute or court rule. [¶] (2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability. [¶] (3) The child [footnote continued on next page]
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Whelton contended a mistrial should be granted because (1) defendant could not
confront JD2, due to JD2 being unavailable; (2) the recording of the forensic interview
was improperly introduced on the premise that JD2 was available; and (3) the forensic
interview was so prejudicial (Evid. Code, § 352) that it was impossible for the charges
involving JD2 to go forward.
The following exchange occurred:
“[Prosecutor]: Well, [JD2] is available, she’s on the witness stand, and Mr.
Whelton is free to cross-examine her. So I don’t agree with his argument that she’s
unavailable as a witness. [¶] I’m not the only prosecutor who puts a victim on the
witness stand for—makes them available for cross-examination and then relies upon the
admissibility of the CARE/RCAT [forensic] interview, CARES video pursuant to
[Evidence Code section] 1360. And I think just simply watching the CARES
interview—or watching it establishes that, the way and manner in which it is done, that
it complies with the requirements; that it is a[n] objectively reliable statement.
“There is a reason for [Evidence Code section] 1360. So we don’t have to put
little kids on the witness stand and have them recall the things—horror that happened to
them in front of a jury.
“The Court: I disagree with that point. I don’t think you get to put on the
videotape and say ‘there it is’ because how can the defense cross-examine a child—
[footnote continued from previous page] either: [¶] (A) Testifies at the proceedings. [¶] (B) Is unavailable as a witness, in which case the statement may be admitted only if there is evidence of the child abuse or neglect that corroborates the statement made by the child.”
22
“[Prosecutor]: She’s sitting right there. He could cross-examine her on his—
“The Court: All she does is sit and stare at him? Doesn’t answer any questions?
Is that—is that a full opportunity to cross-examine?
“[Prosecutor]: I mean I—I don’t think it’s my obligation to assist Mr. Whelton
in doing his cross-examination. If he’s able to talk to her and ask her questions, then
she can answer them.
“The Court: No. It is your obligation to put on evidence of the crimes charged.
“[Prosecutor]: Correct. And I think I have. I have asked the witnesses here—
the foundation was laid for the CARES interview, and the CARES interview has been
presented to the Court.
“The Court: So you’re not going to ask this victim, alleged victim anything
about any of the alleged acts that occurred?
“[Prosecutor]: Yes. That’s—and I’m not—I understand from the Court’s
comments when we were doing 402s that’s not how the Court—your Honor did things
when your Honor was a prosecutor, and I’ve—I’ve talked to other D.A.s in the office,
and many of them, when there’s an admissible forensic interview, choose to present the
forensic interview and choose not to ask—
“The Court: And just rest?
“[Prosecutor]: Yes. On the CARES interview. [¶] Burke Strunsky has done
numerous trials in that fashion. That was—I have discussed it with Mr. Fineman, my
supervisor.
“The Court: Have you got Ps and As on that?
23
“[Prosecutor]: I never had a defense attorney raise the issue and say it was
inappropriate. The—the witness is available for cross-examination, and the CARES
interview is a prior statement that’s admissible pursuant to [Evidence Code] 1360. So
that statement in and of itself is admissible as evidence. She’s available for cross-
examination. Her statement in the CARES interview is available for the jury to
consider, and it is available for Mr. Whelton to cross-examine the witness on. [¶] And I
don’t think I’m obligated to then go into it all over again with her on the witness stand
in front of the jury.
“Mr. Whelton: Your Honor, this is exactly what Winslow addressed. When a
witness is present but the Court finds they are not available. ‘Available’ means that you
have a meaningful opportunity to examine the witness. And if the witness just stands
there or sits there and has no ability to answer the question because of their youth and
because of the traumatic effect of the nature of the conversation, they are not available.
[¶] That is where [Evidence Code] 1360 comes in. [Evidence Code] 1360 only makes
it playable, one, if the witness testifies—
“The Court: I agree.
“Mr. Whelton: In this case they have not; or second, if there’s corroboration.
“The Court: I think the whole statement needs corroboration, but if the witness
just sits there and stares blankly off to space after giving their name, I don’t think the
People have met their foundation but—
“Mr. Whelton: And I believe the proper time for me to make the motion is now
because the People have—I understood the People to finish their direct. So the
24
objection has to be made in a timely—has to be made timely is my understanding of the
case law.
“The Court: Let me give the jury a 20-minute break and read this case law. The
People need to think about where they are headed.
“[Prosecutor]: And I will review his case, your Honor. And if the Court decides
I need to reexamine the witness, we can readdress that.”
After the recess, the following discussion occurred:
The Court: “[Prosecutor], have you found a case that allows you to simply just
put on a witness to talk about essentially her weekend activities and that’s essentially it?
“[Prosecutor]: I—I don’t have a case on point that says that, your Honor, but in
reading—in reading [Evidence Code] 1360, as long as the circumstances of the
statement provide indicia for reliability and the child testifies, then statement would be
admissible and—
“The Court: Tell me what her testimony has been.
“[Prosecutor]: She testified to personal details about her life. She testified to
knowing the defendant. She testified to being scared of the defendant. And, yes, I did
not go into specifics and ask her about circumstances of the crime, but I don’t believe
that the law requires me to. The law states that if the interview is admissible and the
witness testifies, it doesn’t—[Evidence Code] 1360 does not require the victim or
witness to testify about anything. It simply says ‘if the child testifies at the
proceedings.’
25
“The second element talking about corroboration is only if they are unavailable
as a witness, and that’s not the case here. She’s not unavailable pursuant to [Evidence
Code] 240. She’s here on the stand. And while it may be hard questions for her to ask
[sic], she hasn’t been found in contempt.
“The Court: So it’s the People’s opinion of the law that if a sexual assault victim
is interviewed at a forensic location, they then come to court and talk about their pets
and nothing else that that is available—that’s testifying in terms of [Evidence Code]
1360 because they talked about their pets and nothing else?
“[Prosecutor]: Yes. And normally the way I have the proceedings done is that
the video is then played for the witness, and the witness often times has a chance to see
it. In this case the Court excluded [JD2].
“The Court: No, I didn’t exclude her. I asked if she needed to be on the stand.
“[Prosecutor]: The Court asked her to leave, and she—well, in terms—
“The Court: I didn’t ask her to leave. I said, ‘Is there any reason for her to be
here during the video,’ and the parties both said no.
“[Prosecutor]: Correct. And the Court’s absolutely correct. [¶] As the Court’s
question, yes. I think that as long as she’s on the stand and she is here testifying, there’s
nothing [that] says that I, as the prosecutor, have to ask her those questions and re-
victimize her about what happened, and she’s available to testify. She’s available for
cross-examination. Mr. Whelton now has a full opportunity to ask her about anything,
including her prior statements.
26
“The Court: So what if she just sits on the stand and doesn’t answer a question?
Would you—would you consider her available for cross-examination?
“[Prosecutor]: Well, that remains to be seen if that’s what she’s going to do, but
if she’s—
“The Court: So you’re—you want to go down that path of having the Court
make that last-minute decision of whether or not she’s had an—whether the defense has
had an opportunity to cross-examine her as to the substantive allegations in this case?
[¶] Based on our discussions in the hallway, I thought I missed something. So I called
two senior judges who have more experience than I do, who spent their prosecutorial
careers prosecuting child abusers, thinking I had missed something. [¶] And I haven’t.
So—
“[Prosecutor]: I could—I understand that the Court may disagree or frown on
how I may be presenting the case, and I could only tell the Court I’ve—I’ve had
extensi[ve] discussions with other prosecutors who are practicing in my office, one of
which is Mr. Strunsky, who’s in our SACA unit for quite some time, Ms. Garcia, who
was in the SACA unit for quite some time, Mr. Fineman, who is the supervisor, and I’ve
explained to them exactly what I have done and what has gone on here.
“I had a brief conversation again with them on the break about the fact that I
have put the witness on, asked her essentially no questions about the offense, and have
made her available for cross-examination, and they have all told me that that is how
they routinely proceed with minor victims with the rationale being that it’s the least—
27
while it may not be from the Court’s perspective the way the Court would like to see it
done—
“The Court: That’s not—that’s the least of my concerns right now—
“[Prosecutor]: Okay.
“The Court: —is that you would try a case the way I used to try a case. That has
absolutely no input, no—it—it’s the furthest thing from my mind. I don’t care how you
try your case as long as you try your case according to the law, to the rules.
“[Prosecutor]: I think I have.
“The Court: Well, having discussed with a judge in Riverside County and a
judge from San Diego County who don’t know each other, who have both had years of
being child abuse prosecutors prior to their time on the bench, who are senior to me in
terms of their prosecutorial experience and their time on the bench as a judicial officer,
we all seem to disagree.
“And I don’t know which judges have allowed this type of evidence to come in
basically with just a statement that the child went to a theme park over the weekend and
no discussion of the underlying charges. I don’t know who that is, and I really don’t
care. I don’t think that’s the law.
“[Prosecutor]: I mean, is the Court—is the Court changing its ruling on the
admissibility of the CARES interview pursuant to [Evidence Code] 1360? [¶] Because
my understanding would be that that interview is admissible, and a foundation was laid
for it, and the Court’s had an opportunity to see it, that interview is admissible. And if
28
that interview is admissible, [Evidence Code] 1360 does not say that I have to ask the
child—it just says testifies. It doesn’t say as to what.
“The Court: So it’s the People’s view of the law that she testifies about going to
a theme park over the weekend [and that] is sufficient for the playing of the [Evidence
Code section] 1360 video?
“[Prosecutor]: In terms of—the requirement is that the child testifies at the
proceedings, and there’s no caveat that says testifies substantively to the circumstances
of the offense. It simply says that she testifies, and she has, and she’s fully available to
cross-examine as to—albeit he’s—I understand Mr. Whelton won’t be asking her cross-
examination about going to [an amusement park], but he can ask her any and every
question he would like to about what she stated to—
“The Court: [Prosecutor], I’m shocked that the D.A.’s Office would—would
have the position that as long as the victim gets on the stand and talks about some
unrelated event and refuses to answer any questions about the charges facing the
defendant and why—and what they are a victim of that they have met their obligations
under [Evidence Code section] 136[0]. [¶] I’m blown away by it. I’ve never heard that
argument by any prosecutor in my 17 years as a prosecutor and my four as a judge, I
have never heard that.
“[Prosecutor]: I don’t agree with the Court’s conclusion that she’s refusing to
answer questions. I would agree that it appears that she’s having a difficult time talking
about the subject matter when we get close to the circumstances of the offense, but
there’s been nothing said by the witness during the course of my examination where she
29
has said or implied she’s refusing to answer questions. It’s obvious it’s a difficult
subject matter for her to talk about, which plays into my desire to not ask her specific
questions and to rely upon the state of her prior admissible statement pursuant to
[Evidence Code section] 1360.
“The Court: And in the Court’s view of [Evidence Code section] 1360, a
statement is admissible if the child is willing to testify about the nature of the charges.
Even briefly—
“[Prosecutor]: Okay.
“The Court: —about what’s on that videotape. [¶] If they are willing to talk
about the interview itself and—I’m not going to tell you how to try your case, but you
can kind of see where I’m headed. I don’t expect there to be a full recitation of the
entire evidence. I don’t think that’s required under the law. Mr. Whelton may disagree
with me, but if she talks about the allegations in this case, what she talked about with
the interviewer to the jury, then [Evidence Code section] 1360 comes in, and it should
come in.
“But if the People think that they are going to be able to just put a witness on the
stand and talk about their weekend at a theme park, not touching on the real issues in
this case, and there being no other independent corroboration of the act, then we are in a
quandary.
“[Prosecutor]: So it is the Court’s—just so I understand the Court’s position, the
Court is not requiring me to go through each and every, per se, element of the offenses
and force the victim to describe in detail the allegations? It’s enough to broach the
30
subject and have her corroborate, in a sense, corroborate what’s been previously stated
in the CARES interview[?]
“The Court: She’s got to talk about—she’s got to testify about what the
defendant did to her or the videotape.
“[Prosecutor]: If she has difficulty—this goes back to playing the video for the
witness. If she expresses a hard time talking about the circumstance of the offense, I
may re-request the Court to refresh her recollection with it.
“The Court: That’s fine.
“[Prosecutor]: Which would require playing the video for her again, and then I
could ask her if those things are true.
“The Court: The horse is out of the barn in terms of the videotape.
“[Prosecutor]: Right.
“The Court: So playing it another time I don’t see is going to—is going to be a
problem. Either she’s going to be able to talk about that videotape and the abuse
allegedly she has suffered at the hands of the defendant, or she’s going to shut down,
and she’s not going to answer any questions from you or Mr. Whelton. In that case, you
know, we are at a position where we need to decide how everyone gets a fair trial.
“[Prosecutor]: All right.
“The Court: I’m going to give you until—are you requesting any additional
time?
31
“[Prosecutor]: I would like about five more minutes just so I could exchange
videos in case we need to redo it and may briefly speak with the witness and explain to
her what’s going to happen.”
The trial court gave the prosecutor additional time. The court asked if Whelton
wanted to be heard. Whelton said he would submit, but asked for his motion to “be
filed as part of the record.” After the recess, Whelton objected to “any further
presentation of the CARE video regarding [JD2].” Whelton asserted the Evidence Code
section 1360 criteria had not been met, so the video was hearsay. Whelton also argued
the video could not be used to refresh JD2’s recollection in order to make the video
admissible.
The trial court overruled Whelton’s objection. The trial court explained that if
JD2 testified about the abuse on her own or though use of the video, and the defense
could cross-examine her, then the video would be admissible. The court said it would
have the jury return to the courtroom and have JD2 retake the witness stand. The court
then said, “[Prosecutor], I need you to make a motion to reopen,” which the prosecutor
did.
The prosecutor questioned JD2 about defendant touching her. JD2 said
defendant touched the part of her body she used to urinate, and that the touching made
her feel bad. JD2 said she recalled talking to the forensic interviewer. The prosecutor
then requested JD2 watch the video of the forensic interview. JD2 agreed to watch the
video. Whelton objected. At sidebar, the trial court said it did not see a need to show
the video when JD2 was answering the prosecutor’s questions. Ultimately, the
32
prosecutor showed a portion of the video to JD2. JD2 confirmed she told the truth to
the forensic interviewer.
2. ANALYSIS
Defendant contends he was denied due process when the trial court declined to
rule on his motion for a mistrial and instead guided the prosecutor on how to cure the
error in laying the foundation for the video and then permitted the prosecutor to reopen
his case. In particular, defendant asserts due process was denied because (1) the trial
court did not rule on the motion for mistrial, and (2) the trial court aided the prosecutor,
denying defendant of a neutral arbitrator.
We review rulings on motions for mistrial under the abuse of discretion standard
of review. (People v. Wallace (2008) 44 Cal.4th 1032, 1068.) However, a claim that a
criminal defendant’s constitutional right of due process was violated, and that his trial
was fundamentally unfair, is subject to de novo review. (People v. Albarran (2007) 149
Cal.App.4th 214, 224-225, fn. 7.) Since defendant is primarily raising a due process
argument, we will apply the de novo standard of review.
“A criminal defendant has due process rights under both the state and federal
Constitutions to be tried by an impartial judge. [Citations.] Indeed, ‘[i]t is axiomatic
that “[a] fair trial in a fair tribunal is a basic requirement of due process.”’ [Citation.]”
(People v. Cowan (2010) 50 Cal.4th 401, 455.) Another law of note is the doctrine of
invited error: “[T]he doctrine of invited error operates to estop a party from asserting an
error when the party’s own conduct has induced its commission [citation], and from
33
claiming to have been denied a fair trial by circumstances of the party’s own making
[citation].” (People v. Lang (1989) 49 Cal.3d 991, 1031-1032.)
When the prosecutor announced his intent to play the recording of the forensic
interview, defendant did not object. The trial court asked the prosecutor if the
foundation for the recording had been laid, the prosecutor confirmed it had, but
defendant said nothing about a possible lack of foundation. Defendant waited until after
the recording had been played and after the prosecutor initially finished with JD2’s
direct examination to raise an issue with the recording’s foundation.
By waiting until the prosecutor finished his direct examination, defendant invited
a possible due process issue. Had defendant raised a timely objection, based upon a
lack of foundation and/or hearsay, prior to the recording being played, the alleged due
process problems would not have occurred. (See People v. Panah (2005) 35 Cal.4th
395, 476 [foundation and hearsay objections must be timely]; see also People v. Kegler
(1987) 197 Cal.App.3d 72, 91 [objection should be raised at the earliest opportunity].)
For example, had defendant raised a foundation and/or hearsay objection prior to the
recording being played, the prosecutor could have laid the proper foundation without
having to reopen his case, and without a motion for mistrial being mixed into the
objection. Thus, the trial court’s “failure” to rule on the motion for mistrial was invited
error because defendant waited until the prosecutor finished his initial examination to
raise what was essentially a lack of foundation or hearsay objection, which caused the
trial court to treat the motion for mistrial as an evidentiary objection.
34
As to the judge informing the prosecutor of the need to question JD2 regarding
the abuse, that discussion was necessary in order for the trial court to explain why the
prosecutor had misinterpreted the law. The trial court did not question JD2 for the
prosecutor or give the prosecutor exact questions to ask. The trial court tried, with as
minimal suggestion as possible, to explain to the prosecutor why the prosecutor’s
understanding of Evidence Code section 1360 was incorrect. The trial court explained
the type of questions it believed were required under the statute, e.g., questions about
the charged offenses.
Trial courts are required to follow the laws set forth by the Legislature. (People
v. Lowe (1975) 45 Cal.App.3d 792, 796.) In the instant case, the trial court was
explaining to the prosecutor why, under the law, it might conclude the prosecutor failed
to provide sufficient foundation. The trial court’s explanation of the law does not
amount to a due process violation because the trial court was merely trying to explain
why the prosecutor was mistaken.
C EVIDENCE CODE SECTION 1108
1. PROCEDURAL HISTORY
Prior to trial, defense counsel moved to limit the testimonies of JD3, JD4, and
JD5—defendant’s sister, cousin, and ex-wife. At the hearing on motions in limine, the
trial court said, “At this point, having read the moving papers of both sides, I do believe
that the People have shown that this evidence is relevant not only for mental state, but
also to show propensity, and that that probative value to the jury does not—is not—
strike that—is not substantially outweighed by its prejudicial impact on the defense.
35
“And so those [Evidence Code section] 1108 witnesses of (Jane Doe 5), (Jane
Doe 3), and (Jane Doe 4) will be allowed to be presented to the jury with the
understanding that if, [defense counsel], if you believe at some point that it’s becoming
cumulative or that there has been a sufficient amount of evidence under [Evidence Code
section] 1108, but now it’s just, in a sense, piling on, and its probative value is
dramatically dropping compared to its prejudicial impact on the defendant, then I invite
you to make your objection, and I will hear it at that point.” Defense counsel did not
renew his objection during trial.
2. ANALYSIS
a) Contentions
Defendant raises two issues related to the uncharged sexual offense evidence.
(Evid. Code, § 1108.) First, defendant challenges the general constitutionality of
admitting propensity evidence. Second, defendant contends the trial court erred by
admitting the specific propensity evidence used in this trial, i.e., the testimonies of JD3,
JD4, and JD5.
b) Constitutionality
We address defendant’s constitutional contention. Our Supreme Court has
concluded the use of propensity evidence under Evidence Code section 1108 does not
violate due process. (People v. Falsetta (1999) 21 Cal.4th 903, 917.) Defendant cites to
Falsetta in his appellant’s opening brief and concedes this court is bound by Supreme
Court precedent. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County
(1962) 57 Cal.2d 450, 455.) However, defendant presents an argument as to why
36
Falsetta is incorrect. In particular, defendant asserts admitting propensity evidence
under Evidence Code section 1108 violates due process. Defendant is correct that we
must follow our Supreme Court’s precedent. Accordingly, we conclude the use of
propensity evidence, in the abstract, does not violate due process. (Falsetta, at p. 917.)
c) Evidentiary Rulings
We now turn to defendant’s contention that the trial court erred by admitting the
propensity evidence presented in the instant case.
(1) Law
“This court reviews the admissibility of evidence of prior sex offenses under an
abuse of discretion standard. [Citation.] A trial court abuses its discretion when its
ruling ‘falls outside the bounds of reason.’ [Citation.]” (People v. Wesson (2006) 138
Cal.App.4th 959, 969.)
“Evidence Code section 352 gives a [trial] court the discretion to ‘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.’” (People
v. Nguyen (2010) 184 Cal.App.4th 1096, 1116.) Factors that a trial court should
consider when deciding whether to allow the presentation of prior sexual offense
evidence are: “(1) whether the propensity evidence has probative value, e.g., whether
the uncharged conduct is similar enough to the charged behavior to tend to show
defendant did in fact commit the charged offense; (2) whether the propensity evidence
is stronger and more inflammatory than evidence of the defendant’s charged acts;
37
(3) whether the uncharged conduct is remote or stale; (4) whether the propensity
evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether
the jury might be tempted to punish the defendant for his uncharged, unpunished
conduct; and (5) whether admission of the propensity evidence will require an undue
consumption of time. [Citation.]” (Id. at p. 1117.)
(2) JD3
JD3 was defendant’s biological sister. Defendant contends the evidence related
to JD3 was minimally relevant to the charges concerning JD2, and the probative value
was outweighed by the prejudicial effect of the evidence.
First, we examine the probative value of the evidence. The evidence involving
JD3 is relevant to the charged offenses involving JD2. JD3 was approximately six,
seven, and/or eight years old when defendant allegedly abused her, and JD2 was
approximately three years old when defendant abused JD2. The young age of JD3 helps
to establish defendant’s attraction to young girls, such as JD2. Additionally, JD3 is
defendant’s sister, while JD2 was defendant’s stepdaughter. The relationship evidence
involving JD3 helps to establish that defendant tends to victimize people close to him,
such as relatives.
JD3 said defendant covered JD3’s face with a sheet, rubbed his penis on her, spit
on her vagina, and ejaculated into a sock. JD2 said defendant grabbed JD2’s hand and
caused her to rub his chest, his thighs, buttocks, and his penis. The act of rubbing both
JD3 and JD2 is similar, and that similarity helps to support JD2’s version of the events.
38
JD3 said defendant wanted JD3 to “French kiss him.” JD2 said she awoke to
defendant’s tongue entering her mouth. The similarity of kissing both JD3 and JD2
with an open mouth helps to support JD2’s version of the events. JD3 also testified that
defendant pulled down JD3’s pants, and orally copulated her. JD2 said defendant
digitally penetrated JD2’s vagina and anus. The acts of oral copulation and digital
penetration reflect a sexual intent behind the acts of rubbing and kissing, which reflects
the acts involving JD2 and JD3 were sexual in nature. In sum, JD3’s testimony had
probative value. In particular, it helped to support JD2’s testimony.
Second, we determine whether the propensity evidence is stronger and more
inflammatory than the charged acts. The propensity evidence was not stronger than the
charged acts because both essentially involved the testimony of a single witness. JD3
testified about the alleged abuse against her. JD2 testified about the abuse against her,
and JD2’s father testified about the acting-out behaviors, such as lying, that led to JD2
ultimately disclosing the abuse. Accordingly, the evidence involving the alleged abuse
against JD3 was not stronger than that involving JD2.
Next, in regard to the inflammatory nature of JD3’s testimony, the acts involving
JD3 were similar to those involving JD2: rubbing, kissing, direct genital contact. The
acts involving JD3 were inflammatory because they involved sexual contact with a
sibling; however, the acts involving JD2 were arguably equally inflammatory because
JD2, while not defendant’s biological relative, was younger, only three years old, at the
time of the abuse. Thus, one could reasonably conclude the charged and uncharged
offenses were equally inflammatory.
39
Third, we examine whether the uncharged conduct is remote or stale. JD3 was
born in 1963. JD3 recalled four separate instances of defendant touching her in a sexual
manner when she was six, seven, and/or eight years old. Thus, the evidence reflects the
alleged abuse against JD3 occurred in 1970, 1971, and/or 1972. The charged offenses
involving JD2 occurred in 2004 through 2006. Accordingly, there is approximately a
35-year gap between the charged and uncharged offenses.
Fourth, we consider whether the propensity evidence is likely to confuse or
distract the jurors. JD3 was an adult at the time she testified, and was clear that the
abuse occurred when she was a child. Meanwhile, JD2 was nine years old at the time of
trial. Given the difference in JD2’s and JD3’s ages, it is unlikely the jury would be
confused by the different offenses because there were clearly separate victims.
Additionally, it was unlikely the evidence involving JD3 would distract the jurors from
their main inquiry since the offenses involving JD3 were similar to those involving JD2.
In other words, the jury would be no more tempted to punish defendant upon hearing
the allegations involving JD3 since the allegations were quite similar to the allegations
involving JD2.
Fifth, we examine the possibility of an undue consumption of time. The
evidence involving the alleged abuse against JD3 was presented via the testimony of
JD3. JD3’s testimony consumes approximately 50 pages of a reporter’s transcript that
exceeds 1,500 pages.
40
Given the similarity between the charged and uncharged offenses, the equally
inflammatory nature of the charged and uncharged offenses, the likelihood of jurors not
being confused or distracted, and the presentation of the uncharged offenses not
consuming much time, the trial court could reasonably conclude the evidence involving
JD3 was admissible. The one factor that weighs against admissibility is the remoteness
of the uncharged allegations. However, “‘significant similarities between the prior and
the charged offenses may “balance[] out the remoteness.” [Citation.]’ [Citation.]”
(People v. Hernandez (2011) 200 Cal.App.4th 953, 968.) As explained ante, there were
significant similarities between the rubbing and kissing incidents in particular.
Therefore, the one factor that could detract from admissibility was balanced by the
similarity factor. As a result, the trial court acted within the bounds of its discretion by
admitting the uncharged offense evidence related to JD3. We find no error.
(3) JD4
JD4 was defendant’s cousin. Defendant contends the evidence related to JD4
was marginally relevant, and that marginal probative value was outweighed by the
prejudicial effect of the evidence.
First, we address the similarities. The offenses involving JD4 are similar to those
involving JD2 because the charged and uncharged offenses involve young females with
whom defendant had familial relationships: cousin and stepdaughter. Also, JD4 said
defendant touched her vaginal area with his toe. JD2 said defendant digitally penetrated
her vagina. The touchings are similar in that they both involve a finger or toe touching
a genital area.
41
Second, we determine whether the uncharged offense evidence was more
inflammatory than the charged offenses. JD4 said she was 14 years old and defendant
was 27 years old at the time of the alleged abuse against JD4. However, JD4 said she
was a willing partner, to the extent a 14 year old can consent to such acts. Meanwhile,
JD2 was an unwilling partner. Given that JD4 said she willingly engaged in sexual acts
with defendant, the uncharged offense evidence could be considered less inflammatory
than the evidence of the charged acts.
Third, we examine whether the uncharged acts are remote or stale. JD4 said the
acts with defendant occurred in the summer of 1984. The alleged offenses involving
JD2 occurred in 2004 through 2006. Thus, there is approximately a 20-year gap
between the JD4 and JD2 acts.
Fourth, we consider whether the evidence involving JD4 was likely to confuse or
distract the jurors from their main inquiry, e.g., whether the jury might be tempted to
punish the defendant for his uncharged, unpunished conduct. JD4 said that she was 14
years old when she willingly engaged in sexual intercourse with defendant. JD2 was
three years old, unwilling, and did not engage in sexual intercourse with defendant.
Due to these differences, it is unlikely the jury would confuse JD2 and JD4. Further,
since the acts involving JD4 were approximately 28 years old by the time of trial, and
JD4 said she willingly engaged in sexual acts with defendant, it is unlikely the jury
would have been tempted to punish defendant for the acts involving JD4.
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Fifth, we examine whether the evidence involving JD4 would consume an undue
amount of time. The alleged acts concerning JD4 were presented via JD4’s testimony.
JD4’s testimony consumes 30 pages of the reporter’s transcript. The reporter’s
transcript in its entirety exceeds 1,500 pages. Accordingly, one could reasonably
conclude JD4’s testimony did not consume an undue amount of time.
In sum, the acts involving JD4 were similar to those involving JD2 because they
both had familial relationships with defendant and were both touched in their vaginal
areas. The acts involving JD4 were not more inflammatory than the charged acts. The
JD4 acts were not confusing, not distracting, and did not consume an undue amount of
time. The only factor that weighed in favor of excluding the evidence was remoteness.
However, the remoteness factor can be balanced by the similarity factor. (People v.
Hernandez, supra, 200 Cal.App.4th at p. 968.) The similarity between the familial
relationships and touchings could reasonably balance the 20-year remoteness.
Accordingly, we conclude the trial court acted within the bounds of reason by admitting
the propensity evidence related to JD4.
(4) JD5
JD5 was defendant’s ex-wife. Defendant contends the evidence related to JD5
was more prejudicial than probative.
First, we examine the similarity of the acts involving JD5 and those involving
JD1. JD5 was defendant’s girlfriend and wife, which is similar to JD1, who was
defendant’s fiancée. Thus, a similar relationship is involved. JD5 said that, at times,
she awoke to defendant engaging in intercourse with her. JD5 would awake to
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defendant “putting his penis in every orifice [she] had.” JD1 said defendant engaged in
vaginal and anal intercourse with her while she was intoxicated in bed. JD5’s testimony
supports JD1’s statements because arguably, if defendant was having vaginal and anal
intercourse with JD5 while she slept, then he would also engage in vaginal and anal sex
with JD1 while she was intoxicated in bed because the situations are similar.
Additionally, JD5 said defendant photographed her while she was sleeping
naked. JD5 was unaware of the photographs until a friend made her aware of them.
Defendant had threatened to send the photographs to JD5’s friends in order to humiliate
JD5. Defendant’s alleged act of taking photographs of JD5 while she slept naked is
similar to defendant’s alleged act of photographing JD1 while she was intoxicated.6
Second, we examine whether the evidence involving JD5 is stronger and more
inflammatory than the evidence of the charged acts. JD5 said defendant held her down
and continued engaging in intercourse with her after she told him to stop. It is debatable
whether holding down a sentient rape victim is more inflammatory than raping an
intoxicated victim who cannot resist. A reasonable person could conclude raping an
intoxicated victim is more inflammatory because the intoxicated victim cannot defend
herself.
In regard to the strength of the evidence, the evidence involving JD1 was
stronger because while both JD1 and JD5 testified, there was photographic evidence to
6 In the instant case, the trial court granted a judgment of acquittal (§ 1118.1) on a charge that defendant used a concealed camera to photograph a person in a state of full or partial undress (former § 647, subd. (j)(3)(A)).
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support JD1’s testimony. For example, there was a photograph of a hand on JD1’s
naked buttocks, which supports that her intoxicated recollections were accurate, in that
she recalled a camera clicking while she felt cold in the bed.
Third, we consider whether the uncharged conduct is remote or stale. The acts
involving JD5 allegedly occurred in 2001, which was eight years before the acts
involving JD1.
Fourth, we examine whether the propensity evidence is likely to confuse or
distract the jurors from their main inquiry, e.g., whether the jury might be tempted to
punish the defendant for his uncharged, unpunished conduct. In regard to confusion,
both JD1 and JD5 testified at trial, so the jury could differentiate between the two
women. JD5 was allegedly sleeping, then awake, then resisting intercourse with
defendant. Meanwhile, JD1 was intoxicated and unable to resist intercourse with
defendant. Given the different victims and different circumstances of the charged and
uncharged rapes, it is unlikely the jury would be confused by the uncharged offense
evidence involving JD5. As to distraction, it is unlikely the jury would seek to punish
defendant for the alleged rape of JD5 because, as explained ante, the alleged crime
against JD5 was not more inflammatory than the charged offenses.
Fifth, we address the possible undue consumption of time. JD5 testified about
defendant raping her. JD5’s testimony consumes approximately 40 pages of the
reporter’s transcript. As noted ante, the reporter’s transcript exceeds 1,500 pages. A
reasonable person could conclude that JD5’s testimony was brief given the length of the
trial, and therefore did not consume an undue amount of time.
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In sum, the evidence related to JD5 was similar to the evidence involving JD1, in
particular the photography aspect and the sleeping/intoxication rape aspects. The
evidence involving JD5 was not strong, not more inflammatory, unlikely to confuse or
distract the jurors, and did not consume an undue amount of time. The only factor in
favor of excluding the propensity evidence was remoteness. However, the eight-year
gap could be balanced by the similarities between the offenses. (People v. Hernandez,
supra, 200 Cal.App.4th at p. 968 [similarities between the offenses can balance out the
remoteness].) As explained ante, the photography and sleeping/intoxication aspects of
the offenses were similar. A reasonable person could conclude these similarities
balanced the eight-year remoteness. Accordingly, the trial court acted within the
bounds of reason by admitting the evidence related to JD5 because nearly all the factors
weighed in favor of admitting the evidence.
D. CALCRIM NO. 1191
1. PROCEDURAL HISTORY
The trial court gave the parties copies of its proposed jury instructions, including
CALCRIM No. 1191. Defense counsel did not object to the instruction. The trial court
instructed the jury with CALCRIM No. 1191, which provided:
“The People presented evidence that the defendant committed the crimes of
Lewd Act with a Child under the age of 14 years and Lewd Act with a Child 14 or 15
years that (were) not charged in this case. These crimes are defined for you in these
instructions.
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“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
offenses. Proof by a preponderance of the evidence is a different burden of proof from
proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence
if you conclude that it is more likely than not that the fact is true.
“If the People have not met this burden of proof, you must disregard this
evidence entirely.
“If you decide that the defendant committed the uncharged offenses, you may,
but are not required to, conclude from that evidence that the defendant was disposed or
inclined to commit sexual offenses, and based on that decision, also conclude that the
defendant was likely to commit and did commit Lewd Act on a Child younger than 14
as charged in Counts 5 and 6 and Sexual Penetration of [a] Child younger than 10 as
charged in Counts 7 and 8. If you conclude that the defendant committed the uncharged
offenses, that conclusion is only one factor to consider along with all the other evidence.
It is not sufficient by itself to prove that the defendant is guilty of Lewd Act with a
Child younger than years and Sexual Penetration of a Child younger than 10 years. The
People must still prove each charge beyond a reasonable doubt.” (Italics added.)
2. ANALYSIS
Defendant contends the CALCRIM No. 1191 instruction violated his right of due
process and undermined the presumption of innocence by permitting the jury to find,
based upon JD3’s and JD4’s testimonies, that defendant was disposed to commit sexual
offenses in general. So, the jury could use the JD3 and JD4 evidence when deciding the
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charges involving JD1 (an adult), rather than limiting the JD3 and JD4 evidence to
deciding only the charges involving JD2 (a minor). Defendant notes the instruction
informs the jury that the evidence provided by JD3 and JD4 is insufficient to prove
defendant’s guilt for the charged offenses against JD2 and John Doe (both minors);
however, the instruction did not set forth a similar limit for the charged offenses against
JD1. Defendant contends this failure to limit the use of the propensity evidence in
connection to the JD1 charges lowered the prosecution’s burden of proof. In sum,
defendant contends the instruction incorrectly permitted the jury to conclude the
offenses against JD3 and JD4 provided evidence of a disposition to commit the charged
offenses against JD1, and the instruction failed to inform the jury that the prosecutor
still had to prove the crimes involving JD1 beyond a reasonable doubt.
We review the adequacy of a jury instruction under the de novo standard of