Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Mariposa County No. 6537, Daniel E. Creed, Judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
Defendant appeals from a judgment of conviction of one count of committing a lewd act upon a child under age 14 (Pen. Code, § 288, subd. (a)). Primarily, he argues the trial court abused its discretion and denied him due process by admitting evidence of other sexual offenses he allegedly committed but for which he was not prosecuted. He also contends the trial court erred in its jury instructions on the other acts evidence and in failing to instruct that defendant’s out of court statements must be viewed with caution. Finally, he challenges certain fines and penalty assessments imposed against him. We modify the judgment to correct the fines imposed, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
These proceedings were initiated on September 19, 2007. Defendant was charged by information with two counts of committing a lewd or lascivious act on A., a family member, between October 1, 1997 and December 31, 1998, and two counts of committing a lewd or lascivious act on J., a family member, between October 1, 1997 and December 31, 1998.
A., J., and B1. are the children of J.C. and his ex-wife (M.H.). J.C. also had two children, B2. and S., from a relationship subsequent to his divorce from M.H. In September 1997, J.C. was murdered. In the aftermath of that tragedy, defendant William Clayton, along with defendant’s wife (M.C.), his daughter (M.), and his mother, visited Mariposa regularly for visitation with B2. and S. Defendant and his wife were seeking custody of B2. and S., whose mother had died several months before. When defendant and his family visited Mariposa, they sometimes stayed at the Mother Lode Lodge (hereinafter, the Lodge). On some occasions, M.H. permitted her children to stay with them overnight at the Lodge. J. was approximately 10 years old at that time; A. was five.
In August 2006, A. revealed to her mother for the first time that defendant had touched her inappropriately during the time she visited the Lodge. In September 2006, J. went to live with and work for defendant in Simi Valley. About a month later, he called his mother from jail. J. had failed to come to work for a few days and defendant had told him to leave his house. J. had returned to defendant’s house, climbed in a window, and stolen several items, after which defendant had J. arrested for burglary. In the phone call from jail, J. told M.H., “I can’t believe he did this to me after what he did to me when I was young.” He explained that defendant had molested him just after his father died. While he was in jail, J. learned that A. also said she had been molested by defendant. He said things like, “[h]e’s going down,” and “I’m going to get him,” because [A.] is his little sister, and “no one hurts my little sister.”
Because A.’s description of the molestation indicated M. might have been molested also, M.H. called M.C. and told her what A. and J. had disclosed. M.C. told M.H. that M. had reported some time before that defendant had molested her; M.H. had been unaware of that. Shortly after that phone call, in November 2006, M.H. reported the matter to law enforcement.
At trial, A. testified that, after her father died in September 1997, she and M. were in bed at the Lodge when defendant got in bed in between them. He did something to M. that did not feel right, so she turned her back toward him. Then defendant rubbed A.’s vagina with his hand for a couple of minutes. This happened again some days later, although A. could not remember if M. was present the second time. After the second time, it hurt when she went to the bathroom and her mother took her to the doctor. When her mother asked if someone had touched her there, she said a boy from day care had done so; the boy had touched her, but that was months earlier.
J. testified that, one night at the Lodge, he and defendant were lying in bed watching a movie; his brother B1 was in another bed in the room. Defendant stuck his hand down J.’s pants and rubbed his genitals; J. pulled defendant’s hand out. J. said he was thirsty and wanted a soda; defendant said, “Hold on, wait a minute.” A couple of minutes later, defendant rubbed J.’s genitals outside his clothes; J. pulled defendant’s hand off. J. got out of bed; defendant gave him money for a soda, and J. went outside to get a soda from the soda machine. When he came back with the soda, J. got in bed with B1. Defendant asked him to come back to his bed; J. refused. Defendant asked B1 to come and sleep with him because there was more room; J. told defendant B1 was staying with him.
M.C. and M. testified that in July 2000, when M. was five years old, she told M.C. defendant was touching her and making her touch him and she wanted M.C. to tell him to stop. M.C. testified M. specifically stated defendant was “making me touch his penis.” M.C. called the police and an investigation followed. The police had M.C. call defendant and ask him about M.’s allegations. Defendant denied them. The case was never prosecuted; M.C. was told there was not enough evidence.
When M. was five, defendant and M.C. were separated and M. visited defendant at his apartment. M. stated that while she was in defendant’s bed at his apartment, he asked her to suck his penis. She refused, but he convinced her to do it; she complained of the taste and again refused. He then pulled down her panties and touched her with his hand. He told her to close her eyes; he got out of bed, turned on the light, and said it was just a bad dream. M. also recalled taking baths with defendant when she was four and five; he made her sit on his lap.
The jury found defendant guilty on count 1; it deadlocked on counts 2, 3 and 4, and the court declared a mistrial on those counts. Subsequently, the prosecutor was allowed to amend the information to allege count 5, a misdemeanor charge of molesting or annoying a child (J.) in violation of Penal Code section 647.6, subdivision (a)(1). Defendant pled no contest to count 5, and counts 2, 3, and 4 were dismissed. Defendant appeals the judgment against him on count 1.
DISCUSSION
I. Admission of Evidence of Other Sexual Offenses
A. Abuse of Discretion
Evidence Code section 1101, subdivision (a)(1), prohibits the introduction of evidence of a person's character or trait of character to prove conduct on a specific occasion. Subdivision (b) of that section permits the admission of evidence of uncharged crimes or other acts committed by the defendant when relevant to establish some fact other than a person’s character or disposition, such as motive, intent, identity, or common scheme and plan. (People v. Soto (1998) 64 Cal.App.4th 966, 983 (Soto).) Section 1108 creates an exception to this rule. It 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 Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (§ 1108, subd. (a).) 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.”
All further statutory references are to the Evidence Code unless otherwise indicated.
Traditionally, evidence of uncharged sexual offenses committed by the defendant offered as evidence of character or propensity was excluded pursuant to section 1101 because it was so highly probative. “Such evidence ‘is [deemed] objectionable, not because it has no appreciable probative value, but because it has too much’” (People v. Alcala (1984) 36 Cal.3d 604, 631.) In enacting section 1108, the “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.” (People v. Fitch (1997) 55 Cal.App.4th 172, 181-182, fn. omitted.) Through section 1108, “the Legislature ‘declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the witness.’ [Citation.]” (Soto, supra, 64 Cal.App.4th at p. 983.)
Evidence admissible pursuant to section 1108 is not subject to the limitations imposed by section 1101; thus, in a prosecution for a sexual offense, evidence of other sexual offenses committed by the defendant may be admitted on a common sense basis, without a showing of a non-character purpose for which it is relevant and without the “‘“‘more exacting requirements of similarity between the charged offense and the defendant’s other offenses’”’” that apply to section 1101 evidence. (People v. Callahan (1999) 74 Cal.App.4th 356, 368 (Callahan); Soto, supra, 64 Cal.App.4th at p. 984.) Section 1108 evidence may be considered “‘“as evidence of the defendant’s disposition to commit [sexual] crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense.”’ [Citation.]” (Soto, supra, 64 Cal.App.4th at pp. 983-984.)
Evidence of other sexual offenses to prove character or propensity to commit sexual offenses is no longer deemed prejudicial per se; instead, pursuant to section 352, the court must weigh the probative value of the evidence against the potential for prejudice. (People v. Falsetta (1999) 21 Cal.4th 903, 916-917 (Falsetta).) The presumption is in favor of admission of the evidence. (Soto, supra, 64 Cal.App.4th at p. 984.) The factors to be considered and weighed against the probative value of the evidence in determining whether to admit evidence of a particular uncharged sexual offense include: (1) the inflammatory nature of the evidence, (2) the probability of confusion of the jury, (3) remoteness in time, and (4) consumption of time. (People v. Harris (1998) 60 Cal.App.4th 727, 737-738 (Harris).)
“‘The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.’ [Citations.] ‘Rather, the statute uses the word in its etymological sense of “prejudging” a person or cause on the basis of extraneous factors. [Citation.]’ [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 958.) Prejudice refers to “‘evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues.’” (Callahan, supra, 74 Cal.App.4th at p. 371.) Prejudicial is not synonymous with damaging. (Ibid.)
Defendant contends the trial court abused its discretion by admitting evidence of the uncharged molestation of his daughter, M. He asserts the probative value of the evidence was substantially outweighed by its prejudicial effect and the risk of jury confusion. He argues the evidence was more inflammatory than the evidence relating to J. and A.; it had little probative value because of its lack of similarity to the charged offenses; there was a likelihood of jury confusion because defendant was not prosecuted or punished for the offenses against M., and the jury may have been tempted to find him guilty in part to punish those offenses; and the evidence consumed an inordinate amount of time.
Defendant cites Harris, supra, 60 Cal.App.4th 727, as an example of a case in which the reviewing court found evidence of the uncharged crime to be so inflammatory and prejudicial that it should not have been admitted. In Harris, the defendant was charged with sexual offenses against two women with mental health problems. One was a patient at a mental health facility at which the defendant was a nurse. She had a long history of hallucinations and delusions, and was on medication. The defendant allegedly came to her room, lifted her clothes and licked her breast, put his hand down her pants and rubbed her clitoris, then used her hand to rub his penis outside his clothes. The second victim met the defendant at the facility; she later went out on his boat with him, where they engaged in intercourse. On a subsequent occasion, when he hugged and kissed her, she struggled and told him no repeatedly, but he mouthed her breast and fingered and mouthed her vagina.
The trial court admitted evidence of a prior sexual offense committed by the defendant. Twenty-three years earlier, the defendant had been assistant manager of an apartment building; he obtained keys to the victim’s apartment. He entered her apartment at night while she was sleeping, beat her unconscious and used a sharp instrument to rip through the muscles from her vagina to her rectum, then stabbed her in the chest with an ice pick. Police found her beaten unconscious on the floor, bleeding heavily from the vaginal area and bleeding from the mouth and nose. The jury was given a modified version of the facts and was told the defendant had been convicted of first degree burglary with the infliction of great bodily injury. (Harris, supra, 60 Cal.App.4th at p. 734.)
The court concluded the evidence of the prior crime “was inflammatory in the extreme.” (Harris, supra, 60 Cal.App.4th at p. 738.) While the charged offenses involved a breach of trust by a caregiver, they were not unusual or shocking. The earlier offense involved a viciously beaten and bloody victim, apparently a stranger to the defendant, and an unexplained conviction of burglary; the modification to omit some facts left the jury with an incomplete and distorted description of the crime that “must have caused a great deal of speculation as to the true nature of the crime.” (Ibid.)
The court also found a likelihood the jury was confused by the evidence. Jurors may have believed the defendant escaped punishment for rape, which may have increased the danger the jury might have been inclined to punish defendant for the uncharged offenses. (Harris, supra, 60 Cal.App.4th at p. 738.) The court noted the prior offense was remote in time. (Id. at p. 739.) It concluded the prior crime was “so totally dissimilar” to the charged offenses that it had little probative value; it did not bolster the victims’ credibility or detract from the evidence impeaching them. (Id. at p. 740.) The court found admission of the evidence prejudicial and reversed the defendant’s conviction. (Id. at pp. 741-742.)
In cases in which the differences between the charged and uncharged offenses were less extreme, and the uncharged offenses were less shocking, the court has often approved admission of evidence of the uncharged offenses. In Soto, supra, 64 Cal.App.4th 966, the defendant was charged with lewd and lascivious conduct with a child, his twelve-year-old niece, Angelique. While he was alone in her house with Angelique, the defendant sat next to her on the couch, placed his hand under her clothing, and rubbed her back, breast, and stomach; he then moved his hand down in her pants, placed his finger in her vagina and moved it in a circular motion. The trial court admitted the testimony of another niece of the defendant, who stated that, when she was a child, the defendant propped her naked on pillows on a bed, adjusted her legs, and took pictures of her; he repeatedly moistened her breasts and vagina with his tongue to make them shiny for the pictures. The defendant’s younger sister also testified that, when she was a child, defendant often entered her bedroom at night, touched and caressed her chest, and placed his finger in her vagina.
The court rejected the defendant’s argument that the evidence of other sexual offenses should have been excluded because it was more prejudicial than probative. The defendant argued the prior incidents occurred many years before the charged offense, involved conduct that was not similar to the charged offense, and were highly inflammatory. (Soto, supra, 64 Cal.App.4th at p. 991.) The court stated: “The testimony of Linda and Raquel did not involve the same type of brutal, inflammatory conduct found prejudicial in People v. Harris …. Instead, their testimony presented evidence of prior sexual molestations similar to the incident described by Angelique: Appellant took advantage of being alone in the house with a very young female relative; he fondled their bodies with his hands and tongue; he fondled and digitally penetrated their vaginal areas; and he engaged in such conduct more than once with each victim.” (Soto, supra, 64 Cal.App.4th at p. 991.) Additionally, the earlier victims were in the same age range as Angelique when the prior incidents occurred. The court concluded: “Here, the propensity evidence was extremely probative of appellant’s sexual misconduct when left alone with young female relatives, and is exactly the type of evidence contemplated by the enactment of section 1108.… The prejudice presented by this evidence is the type inherent in all propensity evidence and does not render the evidence inadmissible.” (Soto, supra, 64 Cal.App.4th at pp. 991-992.)
In People v. Branch (2001) 91 Cal.App.4th 274 (Branch), the defendant was charged with committing a lewd and lascivious act on a child, his 12-year-old step-great-granddaughter; the defendant put his fingers in the child’s vagina while placing his other hand down his pants, while they were lying on the floor watching television in the house they shared. The trial court admitted the testimony of defendant’s stepdaughter that, when she was 12 to 15 years old, the defendant frequently touched her inappropriately, including touching her in the area of the vagina over her panties and touching himself inside his pants. The court rejected the defendant’s contention the offenses were too dissimilar; in both cases, the defendant touched the genital area of a 12-year-old female, related to him by marriage, and living in the same household, and also touched himself inside his pants. (Id. at p. 283.) The evidence of uncharged offenses was not unduly inflammatory; although the defendant engaged in a wider variety of sexual offenses over a longer period of time with his stepdaughter, the nature of the offenses against both girls was very similar and unlikely to have prejudiced the jury against the defendant. (Id. at pp. 283-284.)
Regarding confusion of the jury, the court stated: “If the prior offense did not result in a conviction, that fact increases the danger that the jury may wish to punish the defendant for the uncharged offenses and increases the likelihood of confusing the issues ‘because the jury [has] to determine whether the uncharged offenses [in fact] occurred.’” (Branch, supra, 91 Cal.App.4th at p. 284.) The stepdaughter testified that she reported the defendant’s conduct to the police, but nothing came of the report. (Ibid.) Nothing indicated the jury wanted to punish the defendant for the uncharged offenses, rather than assessing his guilt or innocence of the charged offenses; the jury asked several questions and asked for read back of testimony, but neither involved the stepdaughter’s testimony. (Ibid.)
The court concluded the remoteness of the earlier offenses, which occurred 30 years before the charged offenses, was balanced by the remarkable similarity between the earlier offenses and the current offenses. (Branch, supra, 91 Cal.App.4th at p. 285.) The testimony regarding the earlier offenses did not take substantial court time, so there was no undue consumption of time. Because the probative value of the evidence was high, and the other factors did not establish that the evidence was unduly prejudicial, the court concluded the trial court did not abuse its discretion in permitting the prosecution to admit evidence of the prior uncharged offenses.
The evidence of the molestation of M. was similar to that of A. Both girls were relatives of defendant, and both were about 5 years old at the time of the molestation; in both cases, the molestation occurred while the child was in the care of defendant, it occurred while defendant was lying in bed next to the child, and it involved defendant touching the child’s vagina with his hand. While the molestation of M. also involved defendant asking her to suck his penis, the uncharged conduct need not be identical in order to be admissible. “The charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108.” (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41, fn. omitted.) Any dissimilarity between the charged and uncharged offenses goes to the weight, rather than the admissibility, of the evidence. (People v. Mullens (2004) 119 Cal.App.4th 648, 659-660.)
The evidence of the offenses against M. was not significantly more inflammatory than the testimony concerning the molestations of A. and J. As in Branch, although M.’s testimony suggested defendant engaged in a wider variety of sexual offenses over a longer period of time with M., the nature of the offenses against both A. and M. was very similar and unlikely to have prejudiced the jury against the defendant.
There was evidence that the molestation of M. was reported to the police in 2000, the police investigated, but the case was not prosecuted due to insufficient evidence. Consequently, there was some danger of the jury confusing the issues and wishing to punish defendant for the uncharged offense because he escaped punishment earlier. Nothing in the record indicates this actually occurred. The only testimony the jury asked to have read back was that of A. The jury never reached a verdict on counts 2, 3 and 4, remaining split 9 to 3 on count 2, 10 to 2 on count 3, and 6 to 6 on count 4. Thus, the conduct of the jury suggests it considered the evidence on each count separately, and reviewed the testimony of A. before it reached a verdict on count 1; it does not suggest the jury was confused about the purpose of the uncharged offense evidence or that it convicted defendant on count 1 because it wished to punish defendant for his conduct toward M.
The uncharged acts involving M. were not remote in time. M. reported defendant’s conduct to her mother in July 2000. The abuse of A. occurred in late 1997 or early 1998. Although the conduct involving M. occurred after the charged offenses, section 1108 is not limited to prior sexual offenses. Both prior and subsequent acts may constitute relevant evidence of a person's character. (People v. Medina (2003) 114 Cal.App.4th 897, 903.) Consequently, evidence of subsequently committed sexual offenses may be admitted, because its admission “is consistent with the statute’s purpose of allowing the admission of evidence showing ‘a propensity to commit [sex] crimes.’” (Ibid.)
The testimony of M. makes up only 32 pages of the trial transcript. However, Officer Dwight Thompson testified to the investigation of her allegations. M.C. testified to the allegations of M. and the police investigation, as well as to the circumstances surrounding the visits of A. and J. to the Lodge. Defendant’s testimony addressed the M. allegations, as well as the allegations of A. and J. Thus, the evidence of the uncharged offenses consumed a substantial amount of time at the trial. Nonetheless, considering the similarity of the acts involving M. to the acts involving A., the similarity in the circumstances, and the closeness in time, we cannot say that the M. evidence “necessitated undue consumption of time.” (§ 352.)
“Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124 (Rodrigues).) A trial court’s exercise of its discretion under section 352 “‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’” (Rodrigues, supra, at p. 1124) We conclude the trial court did not abuse its discretion by admitting evidence of the uncharged molestation of M. That decision, including the determination that the probative value of the evidence of the uncharged molestation of M. outweighed any potential prejudice, confusion, or consumption of time, was not arbitrary, capricious or patently absurd.
B. Violation of Due Process
Defendant contends that section 1108, which allows admission of character evidence to prove criminal disposition, violates his right to due process on its face. This contention was rejected by the California Supreme Court in Falsetta. (Falsetta, supra, 21 Cal.4th at pp. 917, 922.) We are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant also contends his due process right was violated by the way section 1108 was applied in this case; he contends admission of evidence of his prior uncharged acts rendered his trial fundamentally unfair. Citing Harris, supra, 60 Cal.App.4th at p. 737, he asserts “section 1108 passes constitutional muster if and only if section 352 preserves the accused’s right to be tried for the current offense.” Because the trial court abused its discretion in applying section 352, he argues, the safeguard of the section 352 analysis was absent and due process was violated.
We have already concluded the trial court did not abuse its discretion by admitting the section 1108 evidence. It did not misapply section 352. Admission of the section 1108 evidence did not violate defendant’s due process right or render defendant’s trial fundamentally unfair.
II. Jury Instructions
Judicial Council of California Criminal Jury Instructions (2007-2008) (CALCRIM).
The jury was instructed in the language of CALCRIM No. 1191 that it could consider evidence of the uncharged offenses against M.
“Only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
“If the People have not met this burden of proof, you must disregard this evidence entirely.
“If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit the charged sex offenses. 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 the charged sex offenses. The People must still prove each element of every charge beyond a reasonable doubt.”
Defendant contends that, because the People were required to prove the uncharged offenses only by a preponderance of the evidence, and the instruction permitted the jury to conclude from this evidence that defendant “was likely to commit and did commit” the charged offenses, this instruction lowered the burden of proof the People were required to meet. This contention has been addressed and rejected by the California Supreme Court. In People v.Reliford (2003) 29 Cal.4th 1007 (Reliford), the court considered whether CALJIC No. 2.50.01, an instruction similar to CALCRIM No. 1191, effectively reduced the prosecution’s burden of proof. The court stated:
“The 1999 version of CALJIC No. 2.50.01 [which the court considered] provided:
“We do not find it reasonably likely a jury could interpret the instructions to authorize conviction of the charged offenses based on a lowered standard of proof. Nothing in the instructions authorized the jury to use the preponderance-of-the-evidence standard for anything other than the preliminary determination whether defendant committed a prior sexual offense.… The instructions instead explained that, in all other respects, the People had the burden of proving defendant guilty ‘beyond a reasonable doubt.’ [Citation.] Any other reading would have rendered the reference to reasonable doubt a nullity.” (Reliford, supra, 29 Cal.4th at p. 1016.)
The court noted that the 1999 version of the instruction “could be improved,” and that the instruction had, in fact, been revised again in 2002.
“The 2002 revision to CALJIC No. 2.50.01 deletes the sentence, ‘The weight and significance of the evidence, if any, are for you to decide’ and inserts an additional cautionary statement: ‘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.’ Without passing on issues not before us―and mindful of the risk that our comments will again be misconstrued―we think the new sentence is an improvement. It provides additional guidance on the permissible use of the other-acts evidence and reminds the jury of the standard of proof for a conviction of the charged offenses.” (Reliford, supra, 29 Cal.4th at p. 1016.)
The CALCRIM No. 1191 instruction given in this case contained the improved language the court noted in Reliford. After explaining the use of the preponderance of the evidence standard to determine whether the uncharged offenses were committed, it clearly stated that the other offense evidence “is not sufficient by itself to prove that the defendant is guilty of the charged sex offenses,” and reiterated that “[t]he People must still prove each element of every charge beyond a reasonable doubt.” We find no merit to defendant’s contention that this instruction lowered the burden of proof and permitted the jury to convict based on evidence that proved defendant’s guilt only by a preponderance of the evidence.
B. CALCRIM No. 358
“When the evidence warrants, the court must instruct the jury sua sponte to view evidence of a defendant’s oral admissions or confession with caution. [Citations.]” (People v. Dickey (2005) 35 Cal.4th 884, 905 (Dickey).) The rationale behind the cautionary instruction suggests it applies broadly, and should apply to any oral statement of the defendant, whether made before, during, or after the crime. (People v. Carpenter (1997) 15 Cal.4th 312, 393-394 (Carpenter).) Defendant contends the court should have given a cautionary instruction, such as CALCRIM No. 358, in light of the testimony of J. and M. J. testified defendant told him to wait when J. wanted to get a soda, asked J. to get back in bed with him, and asked B1 to get in bed with him. M. testified defendant told her to suck his penis and, after the molestation, told her it was just a bad dream. The People concede such an instruction should have been given, but contend the error was harmless.
CALCRIM No. 358 provides: “You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to the statement[s].
“The standard of review for erroneous failure to give the cautionary instruction is ‘the normal standard of review for state law error: whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given.’ [Citations.]” (Dickey, supra, 35 Cal.4th at p. 905.)
“‘The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made.’ [Citation.]” (Carpenter, supra, 15 Cal.4th at p. 393.) In analyzing whether the failure to give such an instruction was prejudicial, courts examine the record to see if there was any conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately. (Dickey, supra, 35 Cal.4th at p. 905.) When there is no such conflict in the evidence, and the defendant simply denies making the statements attributed to him, or denies being present at the time and in the place the statements were purportedly made, we may conclude the failure to give the cautionary instruction was harmless. (People v. Wilson (2008) 43 Cal.4th 1, 19.) In that situation, the issue is not whether the oral admissions were remembered and repeated accurately, but whether the witnesses testifying to the defendant’s statements are credible. (Id. at pp. 19-20.) The instructions relating to credibility of witnesses may sufficiently advise the jury of the matters to be considered in evaluating that testimony.
In People v. Lopez (1975) 47 Cal.App.3d 8, in determining whether the failure to give a cautionary instruction was prejudicial, the court considered whether the evidence about the defendant’s statements was conflicting, whether the witnesses testifying to the statements were disinterested, and whether the statements attributed to defendant had a vital bearing on the issues in the case. Lopez was convicted of assault and battery on a police officer. The officers claimed he said “‘Leave my brother alone’” and “‘Do you want trouble?’” before he hit them; the defendant claimed he struck only one officer and did so in self-defense, when the officer came at him with a raised nightstick. (Id. at p. 12.)
The testimony of the defendant and his sister-in-law conflicted with that of the two police officers. The court observed: “A failure to give cautionary instructions is less apt to be prejudicial where there is no conflicting evidence or issue concerning the statements [citation]. Conversely, when the evidence concerning the statements is conflicting, the failure to give cautionary instructions is more likely to result in prejudice to the defendant [citation].” (Lopez, supra, 47 Cal.App.3d at p. 14.)
The officers were not disinterested witnesses; they were the alleged victims, and the defendant accused them of using excessive and unreasonable force. The court observed: “Whether oral admissions are reported by witnesses who are friendly to the accused [citation] or by witnesses who may be biased against him [citation] is a factor to be considered in determining whether the failure to give cautionary instructions resulted in prejudice.” (Lopez, supra, 47 Cal.App.3d at p. 14.)
Finally, the defendant’s alleged statements had a vital bearing on the only substantial issue in the case: whether the defendant acted in justifiable self-defense. (Lopez, supra, 47 Cal.App.3d at p. 14.) “Where a defendant’s admissions are vitally important evidence in the case, it is likewise vitally important that the jury be guided as to the manner in which it is to view and evaluate that evidence.” (Ibid.) The court found reversible error. (Ibid.)
There was no conflict about the exact words used by defendant, their meaning, or whether they were repeated accurately. Defendant simply denied the molestations and in so doing implicitly denied making the statements attributed to him by J. and M. The only issue was one of credibility, not of the accuracy of the witnesses’ recounting of defendant’s statements. The jury was instructed on evaluating the credibility of witnesses (CALCRIM Nos. 105, 226) and conflicting evidence (CALCRIM No. 302).
J. was not a disinterested witness, but a victim; M. was not a victim, but may be considered an interested witness because of her accusations against defendant.
The statements of defendant did not have a vital bearing on the issues in the case. The primary issue in the case was whether the molestations asserted by J. and A. actually occurred. Both J. and A. testified to defendant’s physical acts. A. did not testify that defendant said anything during the incidents involving her. The statements to which J. and M. testified were incidental to the acts in which defendant allegedly engaged. Defendant argues that the statements “served as important details in how appellant tried to cover up the molestation of [M.] and how he tried to continue the molestation of [J].” They may have provided details, but they were not vital to the primary issue: whether the incidents happened or not. While the statements suggesting defendant was attempting to lure J. or his brother into defendant’s bed and those suggesting defendant was attempting to cover up his conduct by telling M. it was a dream may have had some bearing on defendant’s intent, his intent was not a contested issue. Defendant denied the molestations occurred at all; he did not contend, for example, that he touched the children, but only accidentally or for a proper purpose.
On this record, we cannot conclude it is reasonably probable that a result more favorable to the defendant would have been reached if the cautionary instruction had been given. The failure to give the instruction does not constitute prejudicial error.
III. Fines and Penalty Assessments
The trial court imposed a fine of $300 plus penalty assessments pursuant to Penal Code section 290.3. Defendant contends the fine authorized by Penal Code section 290.3 at the time of the offense (1997 or 1998) was $200. He contends imposing the higher amount violates the ex post facto clauses of the United States and California constitutions. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) The People concede the error. The fine must be reduced to $200, with a corresponding reduction in penalty assessments and surcharges.
The reporter’s transcript of the sentencing reflects the court imposed the fine pursuant to Penal Code section 290.3. The minute order and abstract of judgment both reflect this as a fine pursuant to Penal Code section 29.3. Since the latter section does not exist, we infer the minute order and abstract of judgment reflect a typographical error and a reference to the former section was intended.
Defendant also contends the fines imposed pursuant to Penal Code section 290.3 and Penal Code section 288, subdivision (e), improperly failed to itemize the components included. In its oral statements, the court stated the base fine amount and then a total amount, without itemizing the individual fee and penalty amounts that were included in the total. The abstract of judgment lists only the total.
“All fines and fees must be set forth in the abstract of judgment. [Citations.] … If the abstract does not specify the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency.” (People v. High (2004) 119 Cal.App.4th 1192, 1200.) The People concede the abstract of judgment is deficient in this regard and should be corrected. We agree. We note that only those fines, penalties and other charges authorized at the time of defendant’s offenses (1997 to 1998) should be imposed.
DISPOSITION
The judgment is modified to reduce the amount of the Penal Code section 290.3 fine to $200. The matter is remanded to the trial court with directions to correct the abstract of judgment to reflect the reduced Penal Code section 290.3 fine and to separately list, with the statutory basis, all fines, penalty assessments, and other charges imposed. As so modified, the judgment is affirmed. The trial court is directed to forward a certified copy of the corrected abstract to the Department of Corrections.
WE CONCUR: CORNELl, Acting P.J., GOMES, J.
“Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense other than that charged in the case. [¶] … [¶]
“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 the same or similar type sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused.
“However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense …, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime. The weight and significance of the evidence, if any, are for you to decide.
“‘You must not consider this evidence for any other purpose.’” (Reliford, supra, 29 Cal.4th at pp. 1011-1012.)
[Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.]”