Opinion
H029583
6-1-2007
THE PEOPLE, Plaintiff and Respondent, v. DANIEL CHARLES CLARKE, Defendant and Appellant.
NOT TO BE PUBLISHED
I. INTRODUCTION
Defendant Daniel Clarke appeals from a judgment of conviction entered after a jury found him guilty of 14 felony counts of committing a lewd act upon his stepdaughter M., a child under the age of 14 (Pen. Code, § 288, subd. (a)), and one count of attempting a lewd act (Pen. Code, §§ 664, 288, subd. (a)). Defendant was sentenced to a total term of 33 years in state prison.
Defendant contends that the trial court erred in allowing evidence of defendants uncharged child molestations to be admitted under Evidence Code section 1108 for the purpose of demonstrating defendants propensity to commit such crimes. For reasons that we will explain, we conclude that the trial court did not abuse its discretion and therefore we will affirm the judgment.
All further statutory references are to the Evidence Code unless otherwise indicated.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Information
The information filed April 6, 2005, charged defendant with committing 15 lewd acts upon a child under the age of 14 between June 30, 2003, and November 15, 2004 (Pen. Code, § 288, subd. (a); counts 1-15), with a special allegation that defendant was ineligible for probation because he had substantial sexual conduct with the victim in counts 1 through 14 (Pen. Code, § 1203.066, subd. (a)(8)). The alleged victim was M., defendants 13-year-old stepdaughter. The prosecution withdrew the probation-ineligibility allegation at the end of the trial. Count 15 was submitted to the jury as an attempted lewd act (Pen. Code, §§ 664, 288, subd. (a)).
B. The Pretrial Motion To Admit Section 1108 Evidence
The People filed a pretrial motion seeking the admission of evidence concerning defendants uncharged sex crimes, including evidence of the molestation of his 13-year-old stepdaughter, T.B., in 1996 and the molestation of his 13-year-old niece, S.V., in 1988. They argued that the evidence was admissible under section 1108 to show defendants propensity to commit sexual assaults on young girls with whom he had a close relationship. Further, the People asserted that the evidence was not subject to exclusion under section 352 because it was highly probative and not unduly prejudicial.
On October 27, 2005, the trial court held a hearing on the pretrial motion. The court ruled that the evidence of an uncharged sex crime involving defendants stepdaughter T.B. was admissible under section 1108, despite T.B.s later recanting of her report that defendant had sexually assaulted her, because the evidence was sufficiently reliable to be put before the jury.
However, the trial court determined that testimony from S.V. was needed before the court could rule on the admissibility of the section 1108 evidence concerning her. The trial court therefore held a section 402 hearing on October 31, 2005. S.V. appeared at the hearing and testified that defendant had molested her when she was 13 years old. The trial court found S.V. to be credible and her testimony probative, and therefore ruled that the section 1108 evidence concerning S.V. would be admitted at trial.
Section 402 provides, "(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article. [¶] (b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury; but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests. [¶] (c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute."
C. Trial
1. Evidence Regarding the Charged Crimes — Victim M. Testimony of M.
At the time of her trial testimony in November 2005, M. was 14 years old. Defendant is her stepfather. By the age of eight, M. was living in an apartment in Redding with defendant, her mother Melinda, and her older sister, J. At that time, defendant would occasionally give her a back massage. Once defendant took her pants off and gave her a full body massage. M. felt uncomfortable because she already had breast development and she was only wearing her underwear. However, sometimes M. asked defendant for a massage if her back or feet hurt.
For the purpose of clarity and not out of disrespect, we will refer to Melinda Clarke, Shannon Marie Clarke, and Beatrice Clarke by their first names.
When M. was 11, the family moved to Santa Cruz. They made many trips between Santa Cruz and Redding after their move. Another incident occurred during one of those trips. Her mother was driving the car and defendant was in the back seat with M. M. fell asleep and when she woke up, her overalls were undone and defendants hand was in her pants, touching her vaginal area.
While the family was living in Santa Cruz, defendant was nicer to her than he was to her sister J. In October or November of 2003, another incident occurred. M. was in the sixth grade at the time. She had gone to bed and was almost asleep when defendant came into her bedroom and pulled her underwear down. While M. pretended to be asleep, defendant put his finger inside her vaginal area. Two minutes later, defendant pulled her underwear back up and said, "Youre not going to rat me out, are you?"
During the following year, defendant came into M.s bedroom at least twice a month and did exactly the same thing, except on one or two occasions when he put his mouth on her vaginal area. When the case was investigated, M. told a deputy sheriff that defendant put his finger inside her 10 to 15 times. Sometimes defendant came into her room and molested her when her sister J. was sleeping in the same bed. J. did not wake up because she is a sound sleeper.
The first person M. told about the molestations was her classmate K., in whom she confided. M. was afraid to tell anyone else because disclosing the molestations would "just rip our whole family apart." When defendants adult daughter Shannon moved in, they had a conversation about defendant treating M. differently than her sister, J., and how defendant also treated Shannon differently than her sister, T.B. M. also wrote a poem for Shannon that told her what had happened with defendant.
The following poem was introduced into evidence as Exhibit 5: "A shadow, a stairway, a man in the night. As I feel him approaching my bed I [pray] it is a dream, but [its] not. I pretend to sleep [which] may only make it worse. I hate this. I hate life. It seems sometimes as if death may be the only [choice]. Other times I try to forget. Feeling lost, sad, angry, curiosity, confusion and [embarrassment] all at one time. My [soul] is slowly drifting away. If I tell there will no longer be `our family just a [bunch] of people torn apart, but they will never be as torn apart as I am inside. Who can I talk to? Who will understand? [¶] Is this man I despise a friend or an enemy? [¶] If I had the [choice] I [would] rather be the most ignored person on the earth [instead] of this. I dont [] want to be liked anymore."
The last time anything sexual happened between defendant and M. was in November 2004. Defendant told M. that if she went upstairs and did him a favor he would give her anything she wanted. M. hesitated, but eventually she went upstairs and defendant followed her. They went into his bedroom, where defendant told M. that if she gave him a massage on his "private area" he would give her anything she wanted. When M. said no, defendant pulled his boxers halfway down and exposed himself. M. became afraid, pushed defendant out of the way and left the bedroom. Defendant later told her that he was sorry and that he was in counseling and needed help.
Near the end of 2004, M. showed J. something that she had written in her diary about the molestations. By that time, the family had moved from an apartment in Santa Cruz to a five-bedroom house. J. told M. that she should tell their mother about the molestations, but M. was reluctant. M. later threw the diary away. She wanted to keep the molestations hidden because she was embarrassed and afraid of the impact on their family.
However, M. revealed the molestations during a therapy session with therapist Ivan Foote. M. attended the therapy session with J. and their mother. M.s mother wanted to know what was in M.s diary, because M. had threatened defendant with disclosure of the diary, but M. was reluctant to say anything. Foote gave her a pad of paper and a pen and M. wrote, "He fingered me." M. gave the note to her mother and left the room. Her mother was really upset and when she found M., she talked to her to make sure that really happened. Foote told them that he was required by law to report the molestations.
After the therapy session, M., her mother and her sister J. went to the apartment of their family friend and former neighbor, Patty Fitzgerald. M. next saw Fitzgerald one month later, when Fitzgerald came to M.s house and a confrontation ensued. M. shut Fitzgerald out of the house, but Fitzgerald banged on the door and said, "You little slut. [Defendant] didnt rape you, and even if he did, you liked it." M. ran out of the house and went to the hospital where her mother worked. As M. was running away, Fitzgerald followed her in her car and yelled out the car window, "Oh, go crying, you little slut."
M. would describe herself as having a temper and mood swings. However, she denied that she made up the story that defendant molested her so that she could get a third ear piercing and dye her hair black.
Testimony of J.
M.s sister, J., was 16 years old at the time of her trial testimony. J. recalled that defendant treated M. better than her. She also recalled M. showing her a journal entry about a girl with a secret and a picture of a girl standing under a rain cloud. M. asked J. not to say anything about it because M. wanted to tell their mother when the time was right. M. later tore up the journal page.
After the family moved from the apartment in Santa Cruz to a house, defendant shouted a lot and M. was upset. Their mother felt that defendants adult daughter Shannon was freeloading. Their mother had asked defendant and his daughter Shannon to move out while the rest of the family was in Placerville for the New Years holiday weekend. However, their mother and defendant reconciled over the weekend and they all continued living together in Santa Cruz.
J. never saw defendant touch M. inappropriately. During the car trip from Redding, J. saw defendant put his head on M.s lap, but she did not see his hand down her overalls. On many occasions J. asked defendant to give her back rubs for a back problem. At the therapy session with Ivan Foote on January 10, 2005, J. observed that their mother was upset and shocked when she saw what M. had written on the notepad. J. was also present when M.s poem for Shannon about what had happened was found in a coat pocket.
Testimony of Melinda
Melinda is the mother of M. and J. Defendant started living with them in 1998. The family moved to Santa Cruz in 2003. On their car trips between Santa Cruz and Redding, defendant would get in the back of the car while she was driving and put his head on M.s lap. Melinda never saw anything unusual occur. Defendant never said "no" to M. and gave her whatever she wanted.
Melinda and defendant got along fairly well until defendants daughter Shannon moved in with them in June 2004. At the end of 2004 there was a lot of tension in the house. Melinda believes that M. heard her arguing with defendant and told him to leave her mother alone or she would tell her about the diary. Melinda decided to get away by going to her grandmothers house in Placerville for the New Years holiday. She told defendant that he and his daughter were to be gone when she got back. Defendant indicated that he would comply. However, Melinda decided to give their relationship another try.
Regarding the therapy session with Ivan Foote, Melinda recalled that M. asked to go with them. After J. gave M. paper and a pen during the therapy session, M. wrote " `He fingered me. "Melinda was shocked and surprised. After writing the note, M. walked out of Footes office and Melinda found her in a stairwell shaking uncontrollably. M. told Melinda that she was not lying. They waited while Foote telephoned Child Protective Services. When Melinda returned home a day later, she found a note from defendant indicating that he had left. Several days later, she found a note written by M. that she turned over to police.
Melinda denied that she conspired to get rid of defendant by fabricating the child molestation allegations because she wanted to return to J.s father.
Testimony of K.
K. was 14 years old at the time of her trial testimony. She and M. became best friends when they were in middle school. They would tell each other things they did not want anyone else to know. K. sometimes spent the night at M.s home. On one occasion when she was visiting M., she overheard M. and J. arguing. J. wanted to know why defendant was treating M. so well and M. said she could not tell her. K. asked M. what was wrong and what they were arguing about. M. refused to answer.
M. eventually confided in K. about what was upsetting her. During their physical education class, K. asked M. if she was okay and M. said she was fine. K. asked M. several more times if she was fine, and M. finally said that defendant had been touching her at night in her bedroom with his fingers and his tongue. K. told M. to tell someone, but M. said she could not tell anyone because her family would be torn apart, become poor, and hate her. K. continued to tell M. almost every day during the school year that she should tell someone and M. continued to refuse to do so. K. thought that M. was moody and depressed.
After August 2004, K. had little contact with M. The only other conversation they had about defendant was six days before Christmas in 2004. K. saw M. at the mall and asked her if defendant had been touching her and if she had told anyone yet. M. said that defendant had been getting counseling and was not touching her anymore. K. told her mother about M.s allegations, but her mother never contacted the authorities.
Testimony of Jeannie K.
Jeannie K. is K.s mother. In March or April of 2004, K. told her that M. had said that defendant was molesting her. She did not notify any authorities because she did not want to become involved. Instead, she told K. to have M. tell her mother or the school or someone else.
Testimony of Ivan Foote
Ivan Foote is a licensed marriage and family therapist. J. had an appointment with him on January 10, 2005, at 6:15 p.m. On that day, J. came to the appointment with her mother and her sister, M. When they arrived, M. seemed upset. Foote asked her if she was okay, and M. became very emotional, put her hands over her face, and began sobbing. His attempts to communicate with her orally failed, and J. suggested that M. could write down what was going on with her. Foote handed M. a pad of paper and a pen and she wrote, " `He fingered me. " Foote asked her who had done that, and M. replied it was her stepfather.
M.s mother was shocked and incredulous. The family stayed in or around Footes office for nearly two hours while Foote telephoned Child Protective Services. During that time, M. seemed very emotional and embarrassed. None of the family members laughed or seemed lighthearted. They left his office at about 8:30 p.m.
Testimony of Shannon
At the time of her trial testimony, Shannon was 21 years old. She is defendants daughter. Melinda was her stepmother and M. and J. were her stepsisters. Shannon moved to Santa Cruz in June 2004 and lived with defendant, Melinda, M., and J. in their apartment. When they were living together, Shannon and Melinda had a mutual dislike of each other. Shannon was 20 years old, unemployed most of the time, not going to school, and not paying rent. There was also tension between Shannon and M., which Shannon believed was due to her father spending time with her instead of M. However, defendant treated M. better than her sister J.
Shannon saw defendant give back rubs and massages to Melinda, J. and M. at their request. M. frequently had tantrums because she did not like being told what to do. One day M. gave Shannon a poem that caused Shannon to ask M. if there was something she wanted to talk about. M. declined to discuss it and Shannon showed the poem to Melinda and defendant. Melinda thought M. was just expressing her creativity and defendant suggested counseling.
By Christmas 2004 there was a lot of tension in the house because of Shannon. She understood that she and defendant were supposed to leave the house while Melinda, M. and J. went to Placerville. They packed their bags and were getting ready to leave when Melinda called and said she did not want them out. Things then returned to normal until the day of the counseling session, January 10, 2005, when Melindas attitude suddenly changed.
Shannon never saw defendant touch M. inappropriately. He is not the kind of person who would do that. She would have heard defendant if he went into M.s room at night and touched her. Her recollection is that J. was a light sleeper because J. would wake up when Shannon passed by her bedroom during the night on her way to the bathroom.
Testimony of William Andrade
William Andrade was married to Melindas mother, Judy. M. and J. are his stepgrandaughters. Melinda, M. and J. lived with him in 1994 and 1995. Andrade recalled that M. had frequent tantrums when she did not get her way.
Andrade also knew defendant during a two- or three-year time period when they were all living in Redding. He observed defendant interacting with M. and J. and never saw him do anything inappropriate. In his opinion, defendant would never touch a child improperly.
Testimony of Beatrice Regarding M.
Beatrice is defendants mother. Defendant has lived with her on and off for many years. Before defendant, Melinda, M. and J. moved from Redding to Santa Cruz, they lived with her for four months. Defendant and M. got along well. M. would seek his attention and ask for a foot massage or a shoulder massage. She was not afraid of defendant, either in Redding or when Beatrice visited the family in Santa Cruz.
Testimony of Patricia Fitzgerald
Patricia Fitzgerald was a neighbor of defendant, Melinda, M. and J. when they lived in the same apartment complex in Santa Cruz. Fitzgerald became best friends with Melinda and also considered defendant to be a friend. She was in their apartment almost every day. She observed that while defendant and M. argued a lot, M. was never uneasy around defendant. Defendant treated M. better than J. However, Fitzgerald and M. had a mutual dislike of each other.
Fitzgerald remembered the day of the counseling session (with Ivan Foote in January 2005). Melinda, M. and J. came to Fitzgeralds apartment after the counseling session. At that time, Melinda told Fitzgerald that defendant had been molesting M. Melinda did not seem to be upset and M. asked if she could get a third hole in her ear and dye her hair black the next day as she had been promised. Everyone was laughing about the accusations.
At a later date, Fitzgerald went to Melindas house and became involved in a confrontation with M. in which she told M. that she did not believe her. After Fitzgerald left in her car, she saw M. in the middle of the road. M. swore at Fitzgerald as she drove slowly by. Although M. was only 13 or 14 years old, Fitzgerald said to her, "You better get home, little girl, before you get raped being out here in the dark."
In Fitzgeralds opinion, defendant would not do anything inappropriate with children. She believes that Melinda was setting defendant up and that M. requested the ear piercing and black hair dye as a pay off for making the molest allegations. Fitzgerald recalled that Melinda told her before going on the trip to Placerville that she wanted to leave defendant for J.s father.
2. Evidence of Uncharged Crimes — Victim S.V. Testimony of S.V.
At the time of her trial testimony, S.V. was 31 years old. She does not know M. or J. Defendant was married to her Aunt Joyce. When S.V. was 13 years old in April 1987, an incident involving defendant occurred. S.V. needed new shoes in order to attend a wedding. Defendant offered to take her to a shoe store. When S.V. and defendant arrived, the shoe store was not open and they decided to wait in defendants van. Defendant said he was hot, removed his jacket and got into the back of the van. He then asked S.V. to get in the back of the van with him.
At that point, defendant asked S.V. if she had ever had intercourse, and S.V. said no. Defendant said it was time she knew what to expect. He then got on top of S.V. and touched her breasts and kissed her neck. Defendant also unbuttoned her pants and pulled her panties down while holding her arms above her head. When her pants were down, defendant rubbed her vagina and inserted his finger. S.V. began to cry and after a little while defendant allowed her to get up. When they returned to the front seats of the van, defendant said, "You shouldnt say nothing. It would cause problems in the family." When the shoe store opened, they bought shoes for S.V. and nothing was ever said again about the incident.
Later the same day, S.V. told her grandmother what had happened. S.V.s grandmother called S.V.s mother, who reported the incident to the police. Subsequently, S.V. was removed from her fathers home because he was unable to care for her and sent to live with defendant and her Aunt Joyce. A second incident involving defendant occurred in 1990 when S.V. was 16 years old. While defendant was driving S.V. to get a Social Security card, he offered to buy her a car if she would have sex with him. S.V. refused and defendant proceeded to park in the parking lot of a Fosters Freeze. He pulled S.V. into the back of the van, got on top of her and kissed her breasts. Defendant then held her wrists above her head and rubbed her vagina and breasts while S.V. resisted him. She asked defendant to stop but he said he could not because she would tell. S.V. assured defendant that she would not tell anyone if he stopped. Defendant then got up and they put their clothing on and went home.
Later, defendant told S.V. not to tell anyone about the incident and that no one would believe her. S.V. subsequently reported the incident to three different law enforcement agencies, including the Lompoc Police Department. At their direction, S.V. called defendant but he did not admit anything. To her knowledge, no charges were ever filed. She most recently spoke to a police officer about the incident in 2005, when she talked to Detective Gonzalez of the Capitola Police Department.
S.V. was hospitalized at the age of 16 after she attempted suicide. She did not want to stay in the hospital but neither her mother nor father was in a position to take her. S.V. was also told that a foster home placement was unlikely. When her Aunt Joyce and defendant came to the hospital, Aunt Joyce said that she could not get S.V. out of the hospital unless she wrote a letter saying that defendant had not molested her. S.V. wrote the letter, although her accusations were true.
3. Evidence of Uncharged Crimes — Victim T.B. Testimony of T.B.
T.B. was 22 years old at the time of her trial testimony. Defendant was her stepfather. Her mother Joyce married defendant when T.B. was a baby. Shannon is T.B.s half-sister. They lived with her grandmother Beatrice, who is defendants mother, in a house in Redding. Defendant treated T.B. a little bit differently than Shannon but that never harmed her in anyway.
In April 1996, T.B. went into foster care. Sometime later, she returned to the family home in Redding to live with her mother Joyce, her grandmother Beatrice, and her sister Shannon. When T.B. was in the eighth grade, in November 1996, her mother Joyce committed suicide following her divorce from defendant. In January 1997, T.B. went into foster care again. She subsequently left foster care and began living with her grandmother and her sister.
T.B. currently lives with her grandmother Beatrice, her sister Shannon and her sisters husband in Redding. She does not remember telling Detective Gonzalez (of the Capitola Police Department) that she was worried about her grandmother getting mad at her and kicking her out of the house. At present, T.B. is not afraid of being kicked out. She felt very pressured during the interview with Detective Gonzalez. Defendant raised her since she was a baby and she would not want to do anything to hurt him.
T.B. did not remember reporting in April 1996 that she was molested by defendant or recall talking to an officer from the Redding Police Department. She did not recall telling anyone that defendant came into her room, took her to her sisters room, and molested her. When asked whether she told anyone in 1996 that defendant had "put his private part in her private part," T.B. responded that she had "nothing to say." T.B. also did not remember telling Detective Gonzalez that her grandmother went to the district attorneys office in Redding and told them that the molestation never happened.
During her trial testimony, T.B. denied that defendant molested her in 1996. Her report to police in 1996 and to Detective Gonzalez regarding the molestation was false.
Videotaped Police Interview of T.B.
Detective Mark Gonzalez of the Capitola Police Department testified that he interviewed T.B. on January 10, 2005, in the course of his investigation of a sexual assault crime involving defendant. The interview was videotaped. Detective Gonzalez stated that the videotape was a fair and accurate representation of the interview before the tape was played for the jury. The jury was also provided with a transcript of the videotaped interview.
During the videotaped interview, T.B. stated that she knew M. and J. and was aware of the case involving defendant and M. because Detective Gonzalez had told her about it. When asked whether defendant had molested her, T.B. said yes. She also stated that everything in the Redding Police Department report about the molest charges was true. Her grandmother told the district attorney that the molestation never happened, and then she was put in a foster home.
T.B. asked Detective Gonzalez not to tell Shannon that T.B. had talked to him. She also stated that she did not want to testify at defendants trial because she was afraid of facing the crowd and her family. T.B. was also afraid of being kicked out of the house if defendant found out that she had talked to the police.
Near the end of the interview, Detective Gonzalez left the room. While he was out, T.B. called M. on her cell phone. T.B. told M. that she was sorry that it had happened, that she was with the investigator, that she might not be in court to testify but that M. could call her if she ever needed to talk. T.B. also told M. that she could not handle it anymore, that she could not face "him," and "they" did not know that she was with the investigator.
After the videotape was played, defense counsel objected outside the presence of the jury that the tape was not proper impeachment absent a ruling by the trial court that T.B. was "being dishonest on the stand." The trial court then made a finding "that the numerous times [T.B.] answered she didnt remember, did not appear to be truthful to this Court. It appeared that she was reluctant to be here, was fearful for whatever reasons that her testimony would come back at some point to get some sort of retaliation against her. By who, I dont know."
Testimony of Albert Olson
Albert Olson is a police officer with the Redding Police Department. In 1996, he was a detective investigating sexual assaults. He and another officer, Tracy Beaupre, investigated a report from Child Protective Services regarding T.B. During that investigation, Detective Olson interviewed T.B. She said that she had been molested by defendant in her house, when defendant took her from one bedroom to another bedroom, pulled both of their pants down, fondled her vaginal area and stuck "his private inside of her private." According to Detective Olsons report, defendant told T.B. not to report the incident. However, T.B. told her mother about it.
T.B. was placed in protective custody during the investigation. Charges were filed but ultimately dismissed by the Shasta County District Attorneys Office.
Testimony of Tracy Beaupre
Tracy Beaupre is a police officer with the Redding Police Department who assisted Detective Olson in investigating the child molestation allegations concerning T.B. Officer Beaupre spoke with T.B. after receiving a telephone call from Child Protective Services on January 10, 1997. T.B. told Officer Beaupre that her grandmother told the district attorney that the molest did not happen. However, T.B. stated that the molestation did happen. Officer Beaupre had another conversation with T.B. in April 1997 in which T.B. said that she had spoken to defendant while he was in custody in the Shasta County Jail. Defendant reminded T.B. that she did not have to testify against him.
During a third conversation in June 1997, T.B. told Officer Benson that she was afraid to testify against defendant because her grandmother and stepsister would be angry with her.
Testimony of Beatrice Regarding T.B.
Beatrice, as noted above, is defendants mother. T.B. is her granddaughter and she has lived with Beatrice most of her life. Regarding the allegation that defendant molested T.B. in 1996, Beatrice stated that she did not believe it. At some point T.B. said the allegation was not true. Beatrice denied that she or anyone else had threatened to harm T.B. if she did not tell the district attorney that the allegation was false. Additionally, Beatrice denied that she had told a deputy district attorney that T.B.s molest accusation was not true.
D. Jury Verdict and Sentencing
On November 15, 2005, the jury returned a verdict of guilty on all counts. At the sentencing hearing held on November 19, 2005, the trial court declared count 1 to be the principal term and imposed the middle term of six years. The court also imposed one-third the middle term on counts 2 through 15, for a total term of 33 years.
Before imposing sentence, the trial court stated its reasons for the sentence, which included the following: "Theres a good side to you, [defendant], but I hear from [S.V.] and I hear from [T.B.] and she . . . tried to protect you as best she could. She didnt want to be here. She was forced to be here, but when I looked at that video tape, the truth came through. [¶] . . . [¶] Its as obvious as it could be that you molested her. And when I look at you — you shake your head. I dont expect you to admit it here in court. Your family is here. Its hard to do that. I can appreciate that. [¶] . . . [¶] But I hear from [S.V.]. I hear from [T.B.] and I hear from [M.], and the jury heard all of that, . . . [¶] They believed that [M.] was telling the truth. They believed that [T.B.] was telling the truth and they believed that [S.V.] was doing the same thing. It came through, and theres no doubt in my mind that if you are released, you will do it again."
III. DISCUSSION
On appeal, defendant contends that the trial court abused its discretion when the court allowed evidence of defendants uncharged sex offenses, including the alleged molestations of T.B. and S.V., to be admitted under section 1108 for the purpose of demonstrating defendants propensity to commit such crimes. Before evaluating defendants contention, we will review the general rules pertaining to the admissibility of evidence of uncharged sex offenses and the applicable standard of review.
A. Section 1108
Section 1108 governs the admissibility of evidence of uncharged sexual offenses. In pertinent part, subdivision (a) of section 1108 provides, "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." Thus, under section 1108, evidence of uncharged sexual offenses may be admitted to show that the defendant had a propensity to commit such crimes. (People v. Reliford (2003) 29 Cal.4th 1007, 1013.)
Section 1101 provides, "(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons 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, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted 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. [¶] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness."
Section 352 provides, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
The California Supreme Court addressed the constitutionality of section 1108 in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta). The court noted in its analysis that "`[o]ur elected Legislature has determined that the policy considerations favoring the exclusion of evidence of uncharged sexual offenses are outweighed in criminal sexual offense cases by the policy considerations favoring the admission of such evidence. The Legislature has determined the need for this evidence is "critical" given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial. [Citations]. " (Id. at p. 911.) Moreover, our Supreme Court determined that evidence of other sex crimes is relevant to the issue of the defendants "disposition or propensity to commit these offenses." (Id. at p. 915; People v. Reliford, supra, 29 Cal.4th at p. 1012.)
The Falsetta court concluded that section 1108 did not offend due process, for several reasons. One reason is that the admission of propensity evidence under section 1108 is limited to cases involving current sex offenses and to evidence of prior sex offenses. (Falsetta, supra, 21 Cal.4th at p. 916.) Another reason is that judicial efficiency is not negatively impacted because section 1108 authorizes the trial court to exclude evidence, pursuant to section 352, where its probative value is outweighed by the probability that admission of the evidence will necessitate undue consumption of time, or create undue prejudice or confusion, or mislead the jury. (Falsetta, supra, 21 Cal.4th at p. 916.)
The third reason stated in Falsetta in support of the constitutionality of section 1108 is of greatest significance in the present case. As explained by our Supreme Court, "By reason of section 1108, trial courts may no longer deem `propensity evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]" (Falsetta, supra, 21 Cal.4th at pp. 916-917.)
The trial court has broad discretion to exclude evidence of prior sex offenses under section 1108 where the probative value of the evidence is outweighed by its prejudicial effect. (Falsetta, supra, 21 Cal.4th at p. 919.) Accordingly, the standard of review for an order admitting evidence of prior sex offenses is abuse of discretion. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1315.) "A trial courts exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Having reviewed the general rules governing the admissibility of evidence of uncharged sex offenses under section 1108 and the appropriate standard of review, we turn to defendants contention that the trial court abused its discretion in the present case.
B. Admission of Section 1108 Evidence
In the present case, defendant contends that evidence of the uncharged sex offenses involving T.B. and S.V. was improperly admitted under section 1108 because (1) there was insufficient certainty the uncharged sex offenses had been committed; (2) there were no prior convictions from the previous child molestation allegations; (3) a huge burden was placed on defendant to defend against the uncharged crimes; (4) there were significant dissimilarities between the charged crimes and the uncharged crimes; (5) the uncharged crimes were remote in time from the charged crimes; and (6) the trial court did not properly engage in the careful weighing of factors under section 352. We will address each contention separately.
1. Uncertainty
Defendant contends that the evidence concerning T.B. and S.V. should not have been admitted under section 1108 because there was insufficient certainty that the uncharged sex offenses had been committed. Defendant emphasizes the evidence showing that both T.B. and S.V. recanted their allegations that he molested them, their relatives disbelieved them, the charges filed with respect to T.B. were dismissed, and no charges were ever filed with respect to S.V.s allegations.
The People reject this contention, noting that the trial court carefully considered additional evidence in evaluating the reliability of the allegations of T.B. and S.V., such as the evidence that both T.B. and S.V. were subjected to familial pressure to keep quiet, the lack of any evidence that T.B. was motivated to lie about the allegations, and S.V.s apparent credibility when she testified at the section 402 hearing. The People further assert that defendants disagreement with the trial courts assessment of the evidence does not establish abuse of discretion.
Under Falsetta, the trial court was required to consider "the degree of certainty" that the prior sex offenses were committed in weighing the probative value of the prior sex offense evidence against its prejudicial effect. (Falsetta, supra, 21 Cal.4th at p. 916.) The record reflects that the trial court properly determined, during the hearing on the Peoples pretrial motion to admit evidence under section 1108, that the issue of T.B.s credibility was for the jury to decide and the People had made an adequate showing of reliability. The People indicated that the evidence would show that T.B. reported at the age of 13, in great detail, that she had been molested by defendant. Although the evidence would also show that T.B. recanted when the time came for trial, it would further show that in a subsequent interview with the Capitola Police Department, in connection with the investigation of the allegations involving M., T.B. confirmed that the molest had really happened.
As to the evidence of prior sex offenses involving S.V., the trial court held a section 402 hearing at which S.V. appeared at the hearing and testified regarding the details of the prior sex offenses. S.V. stated that defendant molested her when she was 13 years old while they were waiting in his van for a store to open. Defendant took S.V. into the back of the van, unbuttoned her pants and inserted his finger into her vagina. Defendant molested S.V. a second time when she was 16. Defendant guided her into the back of his van, got on top of her, kissed her and rubbed her breasts and crotch area. S.V. resisted and asked him to stop, which he did. The trial court found S.V. to be credible and her testimony probative, and therefore ruled that the section 1108 evidence concerning S.V. would be admitted at trial.
Thus, both T.B. and S.V. had made reports detailing the uncharged sex offenses that defendant had committed, and, in the case of S.V., the trial court required her pretrial testimony regarding the facts of the offenses. Based on these facts, we believe that the trial court did not abuse its discretion in determining that the degree of uncertainty that the uncharged sex offenses involving T.B. and S.V. were actually committed did not outweigh the substantial probative value of the evidence.
2. Lack of Prior Convictions
Defendant argues that the second factor favoring exclusion of uncharged sex offense evidence is the lack of any convictions from the allegations involving T.B. and S.V. Defendant points out that the Falsetta court "observed that the prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jurys attention would not be diverted by having to make a separate determination whether defendant committed the other offenses. [Citation.]" (Falsetta, supra, 21 Cal.4th at p. 917.)
The People rely on People v. Jennings, supra, 81 Cal.App.4th at p. 1315 for the proposition that where, as here, the evidence of prior sex offenses is no more inflammatory than the charged sex offenses, there is no potential danger that the jury will punish defendant for the uncharged offenses by convicting on the charged offenses. In Jennings, the issue was whether the trial court had erred in admitting evidence of prior domestic abuse under section 1109. The appellate court found no error, determining that "[t]he prior incidents of domestic abuse were not more egregious than the charged offense, and posed no danger of confusing the jury." (People v. Jennings, supra, 81 Cal.App.4th at p. 1315.) However, as defendant notes, in Jennings, unlike the present case, the defendant acknowledged pleading no contest to the prior domestic abuse allegations. (Ibid.)
Section 1109 provides in pertinent part, "(a)(1) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352."
While the existence of prior convictions tends to reduce the prejudicial effect of prior sex offense evidence (Falsetta, supra, 21 Cal.4th at p. 917), neither section 1108 nor Falsetta indicates that prior convictions are a prerequisite for the admission of such evidence. Thus, the fact of no prior convictions is only one of several factors the trial court must consider when engaging in the careful weighing process required under section 352. Here, we determine for several reasons that the trial court did not err in determining that the prior sex offense evidence was admissible, although the lack of prior convictions was not a factor that weighed in favor of admission.
First, we find that the evidence of the uncharged offenses involving T.B. and S.V. was highly probative regarding defendants propensity to commit such crimes. Second, the lack of prior convictions was not a factor that could outweigh the probative value of this evidence under the circumstances of this case, since the uncharged offenses were not more egregious than the charged offenses involving M. While it is arguable that the one incident involving T.B. and the two incidents involving S.V. subjected them to more substantial sexual conduct than the offenses involving M., defendant molested M. multiple times over the course of a year. Additionally, we believe that the evidence of the uncharged sex offenses posed no potential danger of confusing the jury or tempting the jury to convict on the basis of the uncharged offenses, given the detailed evidence that was admitted concerning defendants repeated molestation of M. at a different time and place.
We therefore find no merit in defendants contention that the trial court failed to properly weigh the factor of the lack of any prior convictions based on the allegations involving T.B. and S.V. in exercising its discretion to admit the evidence of uncharged sex offenses.
3. Burden on Defendant
Defendant also contends that the admission of evidence of uncharged sex offenses placed a "huge burden" on him due to the unavailability of witnesses and the available witnesses fading memories, which impaired his defense of the allegations by T.B. and S.V.
With regard to T.B., defendant asserts that T.B.s mother Joyce was a key witness to the family dysfunction who could have explained T.B.s motive for falsely accusing defendant, but she was unavailable due to her suicide. Defendant further complains that the only available witnesses were his mother, Beatrice, and his daughter, Shannon, who were vulnerable to a charge of bias in favor of defendant.
As to S.V., defendant argues that there was a heavy burden on him to find witnesses from the time of the alleged molestation 16 years ago who could shed light on S.V.s motive to falsely accuse defendant, as well as provide information about other molestation accusations made by S.V. and how she came to be released from a mental health facility into the custody of defendant.
The People disagree that admission of the section 1108 evidence placed a huge burden on defendant, emphasizing that the evidence of uncharged prior sex offenses was limited in scope because the People sought to introduce only three prior uncharged sex offenses involving two victims. Additionally, the People argue that defendant was able to attack the credibility of T.B. and S.V. at trial because there was ample impeachment evidence.
We do not believe that an undue burden was placed on defendant as a result of the trial courts admission of the evidence of uncharged sex offenses. As our Supreme Court observed in Falsetta, the Legislature enacted section 1108 to allow the admission of propensity evidence in sex crime cases in part due to the " `serious and secretive nature of sex crimes. " (Falsetta, supra, 21 Cal.4th at p. 918.) Since most sex crimes take place in secret, the number of witnesses potentially available to aid the defense is usually limited. Here, defendant does not identify any witnesses, other than T.B.s mother Joyce, who were not available to testify on his behalf at the time of trial. Moreover, the witnesses available to defendant included T.B., who denied the allegation that defendant had molested her, and T.B.s grandmother, Beatrice, with whom T.B. was living at the time of the alleged molestation, who also denied the allegation. As to S.V., defendant was able to challenge her credibility on cross-examination by highlighting the fact that she had recanted her allegation and had been admitted to a mental health facility.
We therefore determine that the burden placed on defendant to defend against the uncharged prior sex offenses was not so great as to outweigh the probative value of the evidence.
4. Lack of Similarity
Next, defendant contends that the dissimilarity between the uncharged sex offenses and the charged sex offenses was so great that the evidence of uncharged sex crimes should have been excluded.
Defendant explains that the allegations that he used physical force in sexually assaulting T.B. and S.V., "spoke to a capacity for violence that was not demonstrated by the conduct underlying the charged offenses and that was likely to provoke an emotional bias against [defendant]." Additionally, defendant points to the isolated instances of sexual misconduct involving T.B. and S.V., in contrast to the repeated course of molestation involving M. The People reply that such differences did not lessen the relevance of the uncharged sex offense evidence to show that defendant had a propensity to engage in sexual acts with young girls.
In Falsetta, the California Supreme Court instructed that the trial court in weighing the section 352 factors should consider that "the probative value of `other crimes evidence is increased by the relative similarity between the charged and uncharged offenses . . . ." (Falsetta, supra, 21 Cal.4th at p. 917.)
We find that in the case at bar the offenses are all similar in their most significant aspects. Defendant took advantage of a teenaged girl, usually 13 years old, with whom he had a familial relationship, either as a stepfather or uncle, and to whom he gained access in the girls household. Accordingly, there was sufficient similarity between the uncharged and charged sex offenses that the probative value of the evidence of uncharged sex offenses was increased and was not outweighed by its prejudicial effect.
5. Remoteness in Time
Defendant argues that the final Falsetta factor militating against the admission of the evidence of uncharged sex offenses involving T.B. and S.V. is the remoteness in time of the uncharged offenses. Defendant notes that the time between defendants alleged sexual assault of T.B. and the first offense involving M. was seven years, while S.V. was allegedly assaulted 16 and 13 years before defendant commenced his repeated molestation of M. The People contend that due to the similarity between the uncharged and charged sex offenses the prior offenses were not too remote in time to be admitted.
The Falsetta court stated that the probative value of prior sex offense evidence is increased by "the close proximity in time of the offenses." (Falsetta, supra, 21 Cal.4th at p. 917.) Thus, as one appellate court has stated, "a substantial gap between the prior offenses and the charged offenses means that it is less likely that the defendant had the propensity to commit the charged offenses. However . . . significant similarities between the prior and the charged offenses may `balance [] out the remoteness. [Citation.] Put differently, if the prior offenses are very similar in nature to the charged offenses, the prior offenses have greater probative value in proving propensity to commit the charged offenses." (People v. Branch (2001) 91 Cal.App.4th 274, 285 (Branch).)
In Branch, supra, 91 Cal.App.4th at page 285, there was a 30-year gap between the charged sex offenses and the prior uncharged sex offenses. Despite the remoteness in time, the appellate court determined that the prior uncharged sex offense evidence was properly admitted because the offenses were "remarkably similar," in that defendant had molested his 12-year old stepdaughter, then his 12-year-old step-great-granddaughter, while they were staying in his home, and then falsely stated that the victims had done something wrong. (Id. at p. 285.)
As we have discussed, the uncharged and charged sex offenses in the case at bar are similar in their most significant aspects. Defendant first molested his 13-year-old niece S.V. (molesting her again when she was 16), then his 13-year-old stepdaughter T.B., and last his 13-year-old stepdaughter M. He either lived with the victims or had access to them in their households as a member of their family. As in Branch, "the substantial similarities between the prior and the charged offenses balance out the remoteness of the prior offenses." (Branch, supra, 91 Cal.App.4th at p. 285.)
6. Weighing of Factors Under Section 352
Finally, defendant contends that the trial court failed to carefully weigh the factors favoring exclusion of the uncharged sex offense evidence under section 352, as required by Falsetta, and instead improperly focused on whether there was any reason for T.B. and S.V. to recant their allegations. Defendant further contends that the admission of the prior sex offense evidence under section 1108 constitutes prejudicial error because it is reasonably probable that defendant would have obtained a better result if the evidence had been excluded. Defendant asserts that absent the evidence of prior uncharged sex offenses the jury would not have rejected the evidence showing "that the allegations by [M.] were prompted by her mothers desire to be free of appellant and by [M.s] desire to get her mother to let her do what she wanted."
The California Supreme Court has "recognized that, when ruling on a section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under [section] 352. [Citation.]" (People v. Williams (1997) 16 Cal.4th 153, 213.) Additionally, "[n]othing in Falsetta indicates the Supreme Court intended either to reverse this well-established precedent on the proper standards for section 352 analysis, or to require a trial court to articulate its consideration of each of a list of particular factors of probability and prejudice in making a decision under section 352." (People v. Jennings, supra, 81 Cal.App.4th at p. 1315.)
We find that under these rules, the trial court fulfilled its responsibilities under section 352 to weigh the probative value of the uncharged sex offense evidence against its prejudicial effect. It is apparent from the record that the trial court carefully considered the reliability and probative value of the proffered uncharged sex offense evidence against its obviously prejudicial effect before determining that the evidence was admissible.
For these reasons, we conclude that the trial court did not abuse its discretion in admitting the evidence of the uncharged sex offenses involving T.B. and S.V. under section 1108.
IV. DISPOSITION
The judgment is affirmed.
We concur:
McADAMS, J.
DUFFY, J.