Opinion
Defendant Eugene Wilson was charged with 11 counts alleging various sex crimes against three girls (S., R, and E, ages seven, 12, and 11, respectively, at the times of the incidents). A jury convicted defendant of one count of aggravated sexual assault on S. by penetration with a foreign object (Pen. Code, §§ 269, 289 subd. (a)),
1
one count of aggravated sexual assault on S. by oral copulation (§§ 269, 288a), two counts of lewd and lascivious conduct against S. by force, violence, duress, menace, or fear (§ 288, subd. (b)(1)), one count of lewd and lascivious conduct against S.
In the published portion of the opinion, we address defendant’s contention that the trial court erred when it instructed the jury with a modified version of CALCRIM No. 1191 and told the jury that it could use evidence of a charged offense to infer that defendant was disposed to or inclined to have the requisite specific intent for other charged crimes. We conclude the court did not err when it instructed the jury with this modified version of CALCRIM No. 1191.
In the unpublished portion of the opinion, we address defendant’s contentions that the court erred by instructing the jury with CALCRIM No. 1080 because it inaccurately stated the law pertaining to oral copulation and that there was insufficient evidence to establish the element of oral copulation necessary to support his conviction for aggravated sexual assault by oral copulation. We also address defendant’s argument that his convictions for lewd and lascivious conduct on counts 9 through 11 must be reversed because there is insufficient independent evidence apart from his own statements to satisfy the corpus delicti rule and defendant’s request to correct an error in the probation report because the trial court’s order relating to the error was not implemented correctly. We find no error with regard to the first three issues, conclude that the fourth issue is moot, and affirm the judgment.
Facts
I. Prosecution Case
The three girls (S., R, and E), N. (the mother of S. and R; hereafter Mother), and three police officers testified at trial. In addition, the jury saw a videotape of Detective Scott Simpson interviewing defendant, in which defendant confessed to some of the charges. Our discussion of the evidence is organized chronologically by event and by victim.
A. Incident with F. in Pool in August 2004 (Count 6)
In August 2004, when F. was 11 years old, she attended a birthday party for P. at a hotel with a swimming pool. The guests included Mother’s three children (R, D., and S.), F., and F.’s two brothers. Defendant, Mother, and other adults were also at the party. Defendant was playing with the children in the pool. He picked up the children, threw them into the air, and threw them into the water. The children were wrestling with defendant and each other.
F. was wearing a two-piece bathing suit. F. told the jury that while wrestling with defendant, she felt defendant slip his hand down the front of her bathing suit bottom and touch her vagina with his hand. He did not try to penetrate her with his finger. He was behind her and left his hand there for a few seconds. She tried to swim away. It was hard to get away because he was strong and he was holding her around the waist. F. eventually broke free and swam to the side of the pool. She did not tell anyone about what had happened until after defendant was arrested.
F. testified she never thought the incident in the pool was an accident. F. knew it was not an accident because defendant’s hand was there for “quite a while” and it made her feel scared. F. knew the difference between good touching and bad touching because she had been touched in a sexual way by her uncle when she was four years old and when she was seven years old. F. testified that the prior molestations made her afraid of men.
The jury convicted defendant of one count of lewd and lascivious conduct arising out of this incident.
B. Incident with F. When She Spent the Night in August 2004 (Count 7)
Some time in August 2004, after the incident in the pool, F. spent the night at P.’s house. She slept in the queen bed that P. shared with S. F. testified that defendant came into the girls’ room and touched her on the leg and on the rear end. F. explained that defendant was carrying S. into the room and touched her as he placed S. in the bed between P. and F. F. could not recall
In closing argument, defendant argued that F. was distrustful of incidental, nonsexual contact with men because of the prior molestation by her uncle. The jury acquitted defendant of the charges arising out of this incident.
C. Incidents in P. ’s Bedroom in October 2004 (Counts 8-11)
P. testified that around Halloween 2004, when she was 12 years old, she woke up one morning and told her mother that she had dreamt that defendant was in her room the night before with a beer in his hand. In her dream, she saw defendant touching her leg. She woke up and saw defendant leaving her room. After she told her mother about the dream, her mother asked defendant if he had been in P.’s room. P. did not know what defendant’s response was. P. told Detective Eric Fujii that it felt like defendant was kneeling down beside her and then she opened her eyes.
On cross-examination, P. testified that she did not know what part of her story was real and what part was a dream. She confirmed that she had not told the police officers that defendant touched her. She said it was a dream and in her dream defendant touched her knee or the lower part of her leg.
Detective Scott Simpson interviewed defendant in February 2005. The interview was videotaped and the prosecution played the videotape for the jury. In the interview, defendant stated that he touched P.’s vagina when she was asleep one night about three months prior to the interview. He said it happened in October, around Halloween. Defendant said he pulled down her pants and her underwear and “felt on her hairs.” He touched her vagina but did not insert his finger into her vagina. He stated that she was sleeping and did not know that he had touched her. Defendant told the officer that he went into her room and touched her three or four times the same night. The last time he touched her, she woke up, told him to “get out,” and went back to sleep. He thinks he was excited when he touched her.
Mother testified that P. told her about a dream in October 2004. Mother discussed the dream with P. and P. said she dreamt defendant was by her bed. Mother asked P. whether defendant had touched her and she said “no.” Mother did not “put much stock into” P.’s story because it was not unusual for defendant to be in the girls’ room. He went in there regularly at night to shut off the lights, the television, and the videogame or to close the curtains. Mother did not discuss P.’s story with defendant.
D. Incident with S. in December 2004 (Count 5)
In December 2004, S. was six years old. S. slept in “Pull-Ups” brand training pants because she occasionally wet the bed. When defendant got home from work on the night in question, he found Mother and S. asleep in the bed that he shared with Mother. Defendant got into bed, between S. and Mother.
Mother testified that later that night, she felt the bed moving and heard the crinkle of the Pull-Ups. She jumped up, pulled back the covers, and asked defendant “Are you touching [S.]?” She did not see anything and defendant denied doing anything to S.
Detective Simpson questioned defendant about the December 2004 incident with S. Defendant told the detective that he put his hands inside S’s training pants and touched her vagina and her “butt.” He heard Mother wake up and pulled his hand out of the training pants. Defendant did not know why he touched S. He said Mother was “acting a little crazy” that night so he did not want to touch Mother. S. was asleep and did not know what happened.
After the incident, Mother told him to leave. He told Mother he had nowhere to go and begged her to let him stay. He apologized and promised never to do it again. He left for a couple of days and returned.
The jury found defendant guilty of the charges arising out of this incident.
E. Incident with S. in February 2005 (Counts 1-4)
On February 26, 2005, S. told Mother that defendant had molested her that day. Mother called the police and defendant was arrested.
The following evidence is based on the testimony of Officer Hendry regarding her interview with S. on the date of the incident. S. told Officer Hendry that she fell asleep watching television in her bed. She woke up when defendant carried her to the living room couch. S. told the officer that defendant was wearing boxer shorts. S. told the officer defendant pulled his boxers down to his calves, pulled down S.’s pants and underwear, climbed on
Detective Simpson discussed S.’s allegations with defendant when he interviewed defendant on the night of the incident. Defendant told the detective that Mother was napping that afternoon because she had worked two shifts in 24 hours. Both P. and D. were out of the house; S. was the only child at home. Defendant wanted to make love to Mother but she told him to wait for an hour. He watched television, then had sex with Mother.
Defendant told Detective Simpson that he did some things he should not have done. Defendant explained that after he made love to Mother, he went into S.’s room and touched her between her legs, over her clothes. He then told S. to go into the living room. She walked to the living room. Defendant decided to go into the living room because he thought Mother might wake up and did not want to be seen. Defendant told S. to unbuckle and pull down her pants. She unzipped her pants and pulled down her underwear. He unzipped his pants and exposed himself to her. He told the detective he touched her vagina with his fingers. His fingers could not go inside her because they were too big. He was excited; he wanted to have sex with her but could not get erect. Defendant also stated that he had her lay on top of him on the couch with her clothes on and that he turned her over and touched her rear end. Defendant denied having intercourse with S., penetrating her vagina with his fingers, rubbing his penis on her face or placing his penis by her mouth. Defendant told the officer that S. sat on his leg at one point. He asked her if she was going to tell and she said “no.”
Defendant told the detective that he left the room to check on Mother, then went back to living room to touch S. some more. When he returned, S. was hiding under the air hockey table in the living room. Defendant took S. to the store.
Mother testified that she heard S. tell defendant that she was going to tell on him. S. came into Mother’s room and told her what had happened. As S. was talking, defendant interrupted, saying the accusations were not true and “ ‘I’m a bad person. Please don’t call my mom.’ ”
S. told the jury that she did not like defendant and made up the “really bad stuff’ to get him in trouble. S. did not want defendant to be with Mother. She wanted Mother to get back together with her father. She wanted Mother to get mad at defendant, so he would get out of the house. There was evidence that Mother had some sex tapes in her room. S. told the jury she watched some of the tapes when Mother was not at home and that some of them showed men putting their penises in someone else’s mouth.
The jury found defendant guilty of the charges arising out of this incident.
F. Defendant’s Letters
After he was arrested and while in custody, defendant sent Mother some letters in which he discussed the case in detail and set forth how he wanted the girls to testify. Mother gave the letters to the police. Defendant wrote: “All [S.j got to do is say [‘]no[’] I did not touch her ... in her room and I will say ... I did not touch her in the room ... so they cannot charge me
II. Defense Case
Defendant did not testify and elected to rely on the state of the evidence.
Discussion
I. Propensity Instruction (Modified Version of CALCRIM No. 1191)
Defendant contends the trial court erred when it instructed the jury with a modified version of CALCRIM No. 1191, which advised the jury that it could use evidence of a charged offense to infer that defendant was disposed to or inclined to have the requisite specific intent for other charged crimes.
A. Factual and Procedural Background
1. Evidence of Defendant’s Intent
We begin by summarizing the evidence regarding defendant’s intent at the time he committed each of the offenses. With regard to the offenses involving S. and R, there was evidence relating to defendant’s mental state at the time he committed the offenses. During the police interview, defendant told Detective Simpson that he was excited when he touched P. in October 2004 and when he touched S. in February 2005. With regard to the February 2005 incident with S., defendant told the officer that he was “probably” still “homy” after having sex with Mother and that he wanted to have sex with S. Although defendant did not admit to being excited when he touched S. in bed in December 2004, there was evidence from which the jury could infer a sexual intent. Defendant said Mother was “acting crazy” at the time and he
2. CALCRIM No. 1191 and the Modified Version Used in This Case
At the time of the trial, CALCRIM No. 1191 provided: “The People presented evidence that the defendant committed the crimes[ 3 ] of_insert description of offense[s]> that were not charged in this case. These crimes are defined for you in these instructions. [][] 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, [f] If the People have not met this burden of proof, you must disregard this evidence entirely, [f] 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_<insert charged sex offense[s]>, as charged here. 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_<insert charged sex offense[s]>. The People must still prove each element of the charge beyond a reasonable doubt. [Do not consider this evidence for any other purpose [except for the limited purpose of_insert other permitted purpose, e.g., determining the defendant’s credibility»].]”
The court instructed the jury with the following modified version of CALCRIM No. 1191: “The People presented evidence that the defendant committed the crimes of Aggravated Sexual Assault Of a Child Under 14 and 10 Or More Years Younger Than The Defendant; Lewd Or Lascivious Act On A Child By Force, Violence, Duress, Menace Or Fear; and Lewd Or Lascivious Act On A Child Under Fourteen. These crimes are defined for you in these instructions. [][] If you decide that the defendant committed a charged offense, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to have the requisite specific intent for
3. Proceedings in the Trial Court Regarding Modified Instruction
Defendant objected to use of the modified version of CALCRIM No. 1191 on the ground that it was “more prejudicial than probative of any particular fact that the jurors may consider” under Evidence Code section 352. He argued that the incidents involving S. and F. were separate and distinct, since the incident with S. occurred while no one else was around, while the incidents with F. occurred at a public pool and in a bedroom where the other girls were present. He also argued that the offenses in each case were different and that it was overly confusing to allow the jury to consider what happened with S. and P. to determine defendant’s specific intent with regard to F.
The district attorney argued that the modified instruction was not confusing. He stated that while the modified instruction was based on Evidence Code section 1108, it was not “strictly beholden” to section 1108 and that it increased the prosecution’s burden of proof because the jurors have to find the defendant guilty of the other offenses beyond a reasonable doubt before they can consider the propensity evidence to prove specific intent.
Defendant disagreed with the assertion that the modified instruction raised the prosecution’s burden of proof and argued that if one of the counts is insufficient in regard to specific intent, the jury can infer intent from a “completely separate incident” involving another victim under other conditions, thereby lowering the prosecution’s burden of proof.
The court observed that the modified instruction omitted the language in the pattern instruction permitting proof of the uncharged offenses by a preponderance of the evidence. It concluded that “these offenses can be used as circumstantial evidence to prove one of the other offense[s]” and that this is what the modified Evidence Code section 1108 instruction does. The court analyzed the admissibility of the propensity evidence under Evidence Code section 352 and held that the evidence was “more probative than prejudicial” and “necessary.”
Citing
People
v.
Quintanilla
(2005)
The Attorney General argues that Quintanilla was incorrectly decided and is distinguishable. He asserts that charged offenses can be used to show propensity and the instruction did not deprive defendant of his due process rights.
C. General Rules Regarding Admissibility of Character and Propensity Evidence
We begin our analysis by reviewing the statutory scheme and case law regarding the admissibility of character and propensity evidence. “As a general rule, evidence that is otherwise admissible may be introduced to prove a person’s character or character trait. ([Evid. Code,] § 1100.) But, except for purposes of impeachment (see [Evid. Code,] § 1101, subd. (c)), such evidence is inadmissible when offered by the opposing party to prove the defendant’s conduct on a specified occasion ([Evid. Code,] § 1101, subd. (a)), unless it involves commission of a crime, civil wrong or other act and is relevant to prove some fact (e.g., motive, intent, plan, identity)
other than a disposition to commit such an act
([Evid. Code,] § 1101, subd. (b)).”
4
(People v. Falsetta
(1999)
The Legislature has created exceptions to this rule in cases involving sexual offenses (Evid. Code, § 1108) and domestic violence (Evid. Code,
“[T]he Legislature enacted section 1108 to expand the admissibility of disposition or propensity evidence in sex offense cases.”
(Falsetta, supra,
The defendant in Falsetta was convicted of forcible oral copulation and assault with intent to commit rape. He challenged the admissibility of evidence regarding two prior assaults, which had occurred seven and nine years before the charged offenses, on due process grounds. In both of the prior cases, the defendant had pleaded guilty to rape. (Falsetta, supra, 21 Cal.4th at pp. 908, 909-910.) The court rejected the defendant’s due process challenge and concluded that evidence of uncharged sexual offenses may be admitted under Evidence Code section 1108 to show that the defendant had a disposition or propensity to commit such crimes. (Falsetta, supra, 21 Cal.4th at pp. 915, 918.)
The court stated: “the trial court’s discretion to exclude propensity evidence under [Evidence Code] section 352 saves [Evidence Code] section 1108 from defendant’s due process challenge.”
(Falsetta, supra,
at p. 917.) “By reason of [Evidence Code] section 1108, trial courts may no longer deem ‘propensity’ evidence unduly prejudicial per se, but must engage in a careful weighing process under [Evidence Code] section 352. Rather than admit or
Falsetta
observed that propensity evidence “ ‘ “is [deemed] objectionable, not because it has no appreciable probative value,
but because it has too much.”
’ ”
(Falsetta, supra,
D. Jury Instructions on Propensity Evidence
Falsetta authorized the admission of evidence of uncharged sex offenses under Evidence Code section 1108 to prove that the defendant had a disposition to commit sex offenses. Since defendant alleges instructional error, we turn to case law addressing the propriety of jury instructions based on Evidence Code section 1108 and the analogous provision in Evidence Code section 1109, which authorizes the admission of propensity evidence in domestic violence cases.
In
People v. Reliford
(2003)
“The version of CALJIC No. 2.50.01 considered in
Reliford
is similar in all material respects to . . . CALCRIM No. 1191 ... in its explanation of the law on permissive inferences and the burden of proof.”
(People
v.
Schnabel
(2007)
Court of Appeal cases have followed
Falsetta
and
Reliford
and upheld the constitutionality of Evidence Code section 1109
(People
v.
Jennings
(2000)
Falsetta, Reliford, and the Evidence Code section 1109 cases cited above involved the admission of prior uncharged sex offenses or incidents of domestic violence to show a propensity to commit the sex offenses or domestic violence offenses at issue in the case. In this case, defendant challenges the court’s instruction, which told the jury that it can rely on propensity evidence from one or more sex offenses that were charged in the same case to determine whether defendant had the requisite intent to commit another charged sex offense.
In
Quintanilla, supra,
The defendant argued that the trial court’s discretion to exclude propensity evidence under Evidence Code section 352 was the crucial factor in meeting due process requirements under
Falsetta
and that he had no opportunity to object under Evidence Code section 352 because the other-crimes evidence was admitted to prove the other charges against him.
(Quintanilla, supra,
132 Cal.App.4th at pp. 581-582.) The Court of Appeal concluded that the trial court erred by modifying CALJIC No. 2.50.02 to permit the jury to draw a propensity inference from other
charged
domestic violence offenses. The
The court concluded: “Given our Supreme Court’s emphatic reliance on the trial judge’s ability to exclude unduly prejudicial propensity evidence as a component of due process, we are reluctant to stretch section 1109 beyond its intended purpose to authorize instructions that permit the jury to draw an inference of criminal propensity from evidence pertaining to other charged offenses, which cannot be excluded under section 352.”
(Quintanilla, supra,
The concurring justice in
Quintanilla,
who concluded that the instruction was not erroneous, observed: “There is no reason why the same factors that the court must consider in determining whether to exclude evidence under [Evidence Code] section 352 cannot be considered in determining whether to give an instruction . . . permitting consideration of the evidence to show propensity or, alternatively, to give an instruction . . . limiting consideration of the evidence to the offense to which it directly relates. If the court
Citing Quintanilla, defendant argues that it was error to instruct the jury that it could infer criminal propensity with regard to one offense from evidence of other charged offenses. As we explain below, we conclude the instruction and the situation presented here are distinguishable from the instruction and the situation in Quintanilla.
E. Propriety of Modified Instruction Given in This Case
We discern three reasons for permitting the jury to use evidence of charged sex offenses to show a propensity to commit another charged offense. First, the plain wording of Evidence Code section 1108 does not limit its application to cases involving uncharged sex offenses. The statute provides that when a “defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” The statute does not distinguish between charged and uncharged offenses. Second, in cases such as this, involving multiple sexual offenses against multiple victims, permitting the jury to use propensity evidence in this way serves the legislative purpose behind section 1108. Third, the policy concerns or factors that Falsetta described as “supporting the general rule against the admission of propensity evidence” are not implicated where multiple offenses are charged in the same case. (Falsetta, supra, 21 Cal.4th at p. 915.) The defendant does not face an “unfair burden of defending against both the charged offense and the other uncharged offenses” or “protracted ‘mini-trials’ to determine the truth or falsity of the prior charge” or “undue prejudice arising from the admission of the . . . other offenses” in cases such as this, since he is already required to defend against all of the charges. (Id. at pp. 915, 916.) Thus, the reasons for excluding propensity evidence set forth in Falsetta do not apply to cases involving propensity evidence based on charged offenses.
For these reasons, we are not persuaded that the court in Quintanilla was correct in precluding the use of charged offenses to show propensity. But we need not resolve that broader question, since the instruction in this case is much narrower than and distinguishable from the instruction given in Quintanilla.
The court crafted the modified CALCRIM No. 1191 instruction at issue here very narrowly. First, it eliminated the language permitting proof of
As we noted above, under the instruction at issue here, evidence of other charged offenses could be used only for the limited purpose of proving defendant’s specific intent. The use of charged offenses in this manner comports with the use of charged offenses under Evidence Code section 1101, subdivision (b), which authorizes the use of evidence of other acts of misconduct to prove some fact other than the defendant’s disposition to commit a criminal act, “such as motive, opportunity, intent.” In
People v. Ochoa
(1998)
For all these reasons, we conclude that the court did not err when it instructed the jury with the modified version of CALCRIM No. 1191 set forth above.
H.-IV. *
The judgment is affirmed.
Mihara, Acting P. J., and Duffy, J., concurred.
Appellant’s petition for review by the Supreme Court was denied December 10, 2008, S167451.
Notes
All further statutory references are to the Penal Code, unless otherwise stated.
The sentence was based on a sentence of 15 years to life on count 1 and sentences of 15 years to life, consecutive to count 1, on counts 2, 5, 6, and 9. The court sentenced defendant to 15 years to life on counts 3 and 4 and stayed the sentences on counts 3 and 4 pursuant to section 654. The court also imposed concurrent 15-year-to-life sentences on counts 10 and 11.
For the sake of readability, we used the language from CALCRIM No. 1191 that refers to the uncharged offenses in the plural.
Evidence Code section 1101 provides in pertinent part: “(a) Except as provided in this section and in Sectionf] . . . 1108,. . . , evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [][] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity,.. ., or whether a defendant in a prosecution for an unlawful sexual act. . . did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. [ID (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.” (Italics added.)
The 2002 version of CALJIC No. 2.50.01 provided in part: “Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense [on one or more occasions] other than that charged in the case. [ID ... [1D If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that [he] [she] was likely to commit and did commit the crime [or crimes] of which [he] [she] is accused, [f] However, if you find by a preponderance of the evidence that the defendant committed [a] prior sexual offense[s], that is not sufficient by itself to prove beyond a reasonable doubt that [he] [she] committed the charged crime[s]. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime.”
The prosecutor in
Quintanilla
dismissed one of the domestic violence charges for lack of evidence that the parties lived together when the conduct at issue took place and the jury acquitted the defendant of a second domestic violence charge.
(Quintanilla, supra,
See footnote, ante, page 1034.