Opinion
A150650
08-31-2017
THE PEOPLE, Plaintiff and Respondent, v. DERELL ANDERSON , Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. SCN225835, 16007835)
Defendant sexually assaulted 14-year-old N.G. During the trial, the court admitted evidence of prior acts of sexual abuse pursuant to Evidence Code section 1108. Defendant contends the trial court violated his due process rights by instructing the jury under CALCRIM former No. 1191 (hereafter CALCRIM No. 1191) that it could use the uncharged prior sex crimes, if proved by a preponderance of the evidence, to show criminal propensity in establishing guilt of the charged sex crime. Rather, he argues the uncharged sex crimes must be proved beyond a reasonable doubt because they are a link in the direct chain of proof of defendant's guilt. Having considered defendant's contention, we affirm because the instruction did not dilute the prosecution's burden of proof with respect to the charged sex crime.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged in an information with lewd act upon a child 14 or 15 years of age (Pen. Code, § 288, subd. (c)(1)), and failure to register change of address, a misdemeanor (§ 290, subd. (b)). It was further alleged defendant suffered a prior strike conviction. (§§ 667, subds. (d), (e), 1170.12, subds. (b), (c).) A. Charged Offense
All statutory references are to the Penal Code unless otherwise indicated.
N.G. came to San Francisco with her father and brother in April 2016 to sightsee. During the afternoon, the family was driving in the Civic Center area when N.G. indicated she needed to use the restroom. N.G.'s father pulled up alongside the curb, she left the car, entered a Burger King, and walked up to the counter to ask for the location of the restroom.
As she was standing at the register, defendant approached in a red wheelchair and asked to buy a "whopper." Defendant may have asked N.G. for a dollar, but in any event, she told him she did not have any money, and she was just there to use the restroom. As she was asking an employee for the location of a restroom, defendant reached up with his right hand and touched her right breast by "slid[ing] his hand down" from the bottom of her shoulder to under her breast. The touching lasted less than two seconds. After N.G. felt defendant touch her, she put her arm over herself because she "felt uncomfortable and kind of bare and exposed." Defendant used enough pressure to cause her to feel his touch even through the big jacket she was wearing. Defendant did not give her a chance to respond because when he touched her he said, "Have a nice day," and left the premises.
Because the employee told N.G. there was no restroom, she left Burger King and walked up the street into another restaurant and used the restroom there. After finishing in the restroom, N.G. looked for her father, finding him in front of the second restaurant. She told him what had happened, and she and her father drove around looking for defendant. Ultimately, they made contact with the police, and N.G. described the incident to one of the officers. N.G. was taken to a "cold show" a block or so from the Burger King. As she was seated in a patrol car, she identified defendant as the man who had "sexually assaulted" her. B. Prior Uncharged Sex Offenses
During the trial, the court allowed the prosecutor to put on evidence of other prior sex offenses committed by defendant.
I.K. testified that on November 21, 2013, she was walking home from the BART station in the Mission. At the intersection of 24th and Harrison Streets, defendant, in a wheelchair, rolled past her in the opposite direction at which point she "felt him grab my behind" with his hand for "a second or two." Following the incident, I.K. contacted the police, eventually identifying defendant 15 to 20 minutes after the touching occurred. Defendant was convicted of sexual battery on I.K.
In addition to I.K., K.O. testified that on March 9, 2014, she was sitting outside having lunch with her sisters and daughter at a restaurant near AT&T Park. While they were waiting for their food, defendant, who was in a wheelchair, "wheeled up and made a very rude statement" toward K.O.'s sisters. Defendant used the words, "Sexy bitch. I like white women." He then looked at all four of them and stared at K.O.'s daughter for a moment. Thereafter, defendant looked at K.O., grabbed her "privates," squeezing her vagina, and "wheeled off very quickly." About an hour later, the police arrived, and K.O. identified defendant in front of AT&T Park. Defendant was convicted of sexual battery on K.O.
The parties also stipulated defendant was convicted in May 2014 of sexual battery on A.T. and in November 2013 of sexual battery on C.T.
Following a trial, the jury found defendant guilty of lewd and lascivious act on a child 14 or 15 years of age and also found he had suffered a prior strike conviction.
Prior to the trial, defendant pleaded guilty to failure to register a change of address.
II. DISCUSSION
Defendant contends the trial court violated his due process rights by instructing the jury in accordance with CALCRIM No. 1191 that it could consider evidence of his commission of the uncharged sexual crimes if those crimes were proved by the prosecution by a preponderance of the evidence. Defendant asserts the prior sexual offenses admitted pursuant to Evidence Code section 1108 must be proved beyond a reasonable doubt.
Evidence Code section 1108, subdivision (a) provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." Our Supreme Court has rejected a variety of constitutional challenges to Evidence Code section 1108, as embodied in CALJIC Nos. 2.50.01 and 2.50.1 and CALCRIM No. 1191. In doing so, the high court has authorized the jury's consideration of otherwise admissible evidence of a defendant's prior commission of an uncharged sex crime as tending to prove his or her propensity to commit sex crimes, so long as the prosecution has proved the uncharged sex crime by a preponderance of the evidence. (People v. Reliford (2003) 29 Cal.4th 1007, 1014 (Reliford); accord, People v. Falsetta (1999) 21 Cal.4th 903, 918.)
Defendant claims, however, the argument he is making in the instant case "is not the one rejected by the Reliford court." Citing to People v. Tewksbury (1976) 15 Cal.3d 953 (Tewksbury), defendant maintains that because the jury was permitted to infer from the uncharged sex offenses he had the propensity and "specific lustful intent" to commit a lewd act on a child, by the terms of CALCRIM No. 1191, these offenses are a link in the direct chain of proof of defendant's guilt, and thus, must be proved beyond a reasonable doubt.
In Tewksbury, supra, 15 Cal.3d 953, the court " 'discussed the degrees of burdens of proof which may be placed on a defendant in a criminal case.' [Citation.] [Tewksbury,] at page 964 held, generally, a defendant need only raise a reasonable doubt as to the existence or nonexistence of a fact in issue. However, when a defendant raises 'factual issues collateral to the question of the accused's guilt or innocence [that] do not bear directly on any link in the chain of proof of any element of the crime,' such as an entrapment defense or whether a witness is an accomplice, the Constitution is not offended by requiring the defendant to prove such facts by a preponderance of the evidence." (People v. Anderson (2012) 208 Cal.App.4th 851, 896 (Anderson).) In footnote 12, cited here by defendant, Tewksbury stated, "When the People bear the burden of proof of a fact deemed to lie outside the direct chain of proof of an accused's guilt of the crime charged, they are not required to prove that fact beyond a reasonable doubt." (Tewksbury, at p. 965, fn. 12.)
From this, defendant reasons a fact, such as a prior uncharged offense offered to show propensity, is within the direct chain of proof of an accused's guilt, and hence must be proved beyond a reasonable doubt. A similar argument, however, was rejected in Anderson, supra, 208 Cal.App.4th 851. As here, the defendant in Anderson argued the jury instruction given on use of propensity evidence diluted the People's burden of proof with respect to the charged sex crimes. The Court of Appeal disagreed, finding "the uncharged offenses were not in the direct chain of proof as that term is used in Tewksbury. Rather, a defendant's propensity to commit a particular type of crime, here lewd act, is the type of collateral fact addressed in Tewksbury. Anderson's propensity to commit such crimes does not 'bear directly on any link in the chain of proof of any element of the crime.' [Citation.] The fact one of the uncharged offenses marked the start of Anderson's continuous course of conduct is insufficient to alter this result." (Anderson, at pp. 896-897.)
We agree with the reasoning set forth in Anderson, and find it applies squarely to defendant's challenge herein. As noted above, beginning with Reliford, our Supreme Court has long recognized that facts relating to a defendant's prior commission of a sex crime do not serve as direct proof of defendant's guilt in the present case. Instead, such facts may serve collaterally to support an inference defendant had the disposition to commit the charged offense which, in turn, may support the inference he was likely to commit and did commit the charged offense. As such, the Constitution is not offended by requiring the People to prove such facts by a preponderance of the evidence where, as here, the jury is otherwise properly instructed on reasonable doubt and the prosecution's burden to prove each element of the charged crime beyond a reasonable doubt. (Reliford, supra, 29 Cal.4th at p. 1014; see People v. Jandres (2014) 226 Cal.App.4th 340, 359 ["Propensity was, of course, not an element of any of the charged crimes. And the instructions specified that the uncharged offense was not sufficient alone to prove the charged offenses and reminded the jury the People still had the burden to prove each charge beyond a reasonable doubt. Accordingly, 'there is no reasonable likelihood the instruction on uncharged offenses relieved the prosecution of its burden of proof with respect to the charged offense.' "].)
In sum, defendant's propensity to commit lewd acts does not bear directly in the present case on any link in the chain of proof of any element of the charged crime. Accordingly, defendant's due process challenge to the judgment fails.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.