Opinion
F051333
11-16-2007
THE PEOPLE, Plaintiff and Respondent, v. KENNETH LEWIS FAULKNER, JR., Defendant and Appellant.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stan Cross and Susan Rankin Bunting, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
STATEMENT OF THE CASE
On November 1, 2005, the Kern County District Attorney filed an information in superior court charging appellant Kenneth Lewis Faulkner, Jr. as follows:
Count I—felony annoying or molesting V.G., a child under age 18 (Pen. Code, § 647.6, subd. (c)(1)) with four prior strike convictions (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)); and
All further statutory references are to the Penal Code unless otherwise indicated.
Counts II-V—misdemeanor annoying or molesting a child under age 18 (§ 647.6).
On November 2, 2005, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.
On January 30, 2006, the court dismissed count III on motion of the district attorney in furtherance of justice (§ 1385). The court also dismissed the third prior strike conviction allegation attached to count I (§ 667, subd. (e)). The court then renumbered the remaining counts for purposes of trial and amended the information by interlineation to reflect (a) appellants correct name; (b) the correct dates of his alleged prior convictions; and (c) the victims of renumbered counts III and IV were children under the age of 14.
On the same date, jury trial commenced.
On February 8, 2006, the jury returned verdicts finding appellant not guilty of count III (formerly numbered count IV) and guilty of counts I, II, and IV (formerly numbered count V). As to renumbered count IV, the jury made special findings that the case was commenced within the applicable statute of limitations and the victim was under age 14. In a bifurcated proceeding held the same day, the court, sitting without a jury, found the special allegations attached to count I to be true.
Renumbered count III charged appellant with misdemeanor annoying or molesting of B.M.
On March 13, 2006, the court granted defense counsels application to be relieved from representation based upon a conflict of interest with her client.
On July 12, 2006, appellants new trial counsel filed a motion for new trial on the ground of misdirection of the jury or error in a question of law (§ 1181, subd. (5)).
On July 25, 2006, the prosecution filed a written response to the new trial motion.
On July 28, 2006, the court conducted a contested hearing and denied appellants motion for new trial. The court also denied appellants motion to strike a prior conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court denied appellant probation and sentenced him to the term of 25 years to life in state prison on count I and concurrent one-year terms on counts II and renumbered IV. The court awarded 553 days of custody credits, prohibited appellant from visiting with the victim of the offense (§ 1202.05), ordered him to register as a sex offender (§ 290), and also ordered appellant to provide samples of prints and bodily fluids (§ 296). The court ordered appellant to make restitution (§ 1202.4, subd. (f)), imposed a $200 restitution fine (§ 1202.4, subd. (b)), and imposed and suspended a second such fine pending successful completion of parole (§ 1202.45).
On September 25, 2006, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
Count IV—Misdemeanor Annoying C.M. on or about November 29, 2003
B.M. and C.M. are sisters. Their family frequented the Sierra Theater in Delano. When C.M. was 11 years old, appellant spoke to her and to B.M. when they came out of the Sierra Theater. Appellant had a green bicycle when he spoke to them. The sisters were leaving the theater after dark to wait for their parents to pick them up. The theatre door slammed as they left. Although the door was already broken, the girls thought they had broken it. Appellant said to them, "[O]hh, you guys broke it, you guys better run." They tried unsuccessfully to call their mother. Appellant then asked for their names. B.M. was uncomfortable and mumbled an inaudible response. C.M. was also uncomfortable because appellant had a "scary face" and had just walked up to them. Nevertheless, she gave her name and conversed with appellant. B.M. pretended to speak on her cell phone to avoid appellant because she was scared he might grab her or do something.
Appellant stood astride his bicycle, which was about one foot from the two girls. Appellant spoke to C.M. about his visit to the Philippines and also told her he went to the library. He then asked whether the sisters went to the library. Appellant asked whether C.M. was the one who went there all the time and she replied, "Yes." At that point, a woman approached and asked the girls whether appellant was bothering them. Appellant told the woman, "No," and claimed he was not bothering them. C.M. testified she was uncomfortable and scared at that point.
C.M. did not identify appellant at the trial. However, she recalled viewing a photographic lineup at the Delano Police Department and identifying one of the subjects as the man who approached her and her sister at the theater. C.M. testified she was sure of her identification. Officer Vincent Lopez showed B.M. a six-photo lineup shortly after the incident. She initially did not recognize anyone and then made an identification after taking some time to view the array of pictures. Both sisters identified appellants photograph (labeled No. 03D03051). Officer Lopez testified there was no hesitation before the sisters made their identification of appellant.
Officer Lopez said he admonished B.M. and C.M. that the person who accosted them might or might not be in the lineup. He gave the admonition before each sibling separately viewed the photo lineup. Neither B.M. nor C.M. recalled the admonition. The prosecutor asked B.M. if she remembered what, if anything, the officer told her or asked her. She responded, "He just said do you recognize the person — or — yeah." The prosecution asked C.M. whether the officer told her anything. She responded, "He just told me to point the one that was communicating with me and my sister."
Count II—Misdemeanor Annoying B.K. on or about December 6, 2004
On December 6, 2004, B.K. was waiting for a bus on the corner of Niles and Oswell Streets in Bakersfield. The bus stop was located in front of the Mobil gas station and she was going to take the bus to travel from school to home. B.K. had waited five or 10 minutes when appellant approached the bus stop from across the street. He limped and used a cane to walk. B.K. noticed there was something wrong with one of his arms and one of his eyes appeared unusual. Appellant came to the bus stop and spoke to B.K. He asked whether she had seen a piece of his bong. B.K. said, "No," and they began a conversation. B.K. testified that appellants conduct and statements shocked her and made her feel weird.
Appellant asked about B.K.s age and residence. She told appellant she was 17 years old even though she was only 14. B.K. did not want appellant to come to her house so she only gave an area and not a specific address. Appellant told B.K. if she ever needed alcohol, he lived across the street form a liquor store and would buy some for her. Appellant pointed out his residence, said he could provide her with drugs, and asked whether she partied.
B.K. said she felt disgusted when she talked to appellant. She told appellant she already had a boyfriend. Appellant said the boyfriend did not need to come to appellants place to party. Appellant said he liked to keep a low profile. When B.K. asked whether he was in trouble with the law, appellant said, "[T]hats what Im trying to avoid." Appellant then asked whether B.K. had a problem with older men. He gave B.K. his telephone number and some candies. B.K. said she was afraid for her safety and boarded the bus as soon as it arrived. Appellant did not follow her onto the bus.
Later that day, B.K. reported the conversation to Deputy Sheriff Scott Lopez. She told Lopez that appellant said she should call him if she wanted to party at his house. B.K. gave Lopez the piece of paper bearing appellants telephone number. About three months later, Sheriff Detective Martin Downs devised a plan in which B.K. would make a pretext call to appellant and have appellant repeat the statements he made to her at the bus stop. B.K. agreed to the plan and she made the pretext call from the sheriffs office in Oildale on March 10, 2005. Deputies recorded the conversation and the prosecutor played the recording for the jury.
During the pretext call, B.K. tried to remind appellant about their meeting three months earlier. She mentioned such details as his offer to buy her beer and his invitation to go to his home to smoke marijuana. When B.K. asked, "[D]o you remember me," appellant said it might sound familiar. B.K. told appellant she was ditching school and wanted to party with appellant. She also said she was "only 14." Appellant said that was "okay" and indicated he had some "good stuff" to smoke. B.K. then told appellant she was apt to become "horny" when she partied. Appellant said it was okay with him, but he preferred to talk in person about what he was "into." Appellant assured B.K. he had condoms and said they would walk to his house after they met. Appellant noted that B.K. had a bicycle and that he himself enjoyed bike riding. He suggested they take bicycle trips to Hart Park and other such places on weekends. Appellant explained he was just seeking friendship with someone.
When appellant again asked B.K. where she lived, B.K. repeated, "by Foothill," and added, "[o]n Monica Street." Appellant told B.K. he had caller identification service and now he had her telephone number. Appellant then asked B.K. what she looked like because he did not remember. He teased her about being conceited when she said she was pretty. Appellant determined that B.K. recalled appellants appearance and that she did not find him to be ugly. When B.K. asked appellant whether he was "a cop," appellant replied in the negative. He then asked whether B.K. was working with the cops. She assured appellant she was not and said she hated cops. Appellant told B.K. he was "kind of scared" and asked whether she was working for the police. B.K. asked appellant not to call her after 5:00 p.m. because her parents would be home and she did not want her parents to know. They agreed to ride their bicycles and meet at a Chevron gasoline station at 2:00 p.m. Before B.K. departed the sheriffs office, she received a call back from appellant. This occurred between five and 10 minutes after completion of the pretext call. Appellant asked B.K. why she was calling from Oildale when she said she lived in a different area.
Count I—Felony Annoying of V.G.
On June 7, 2005, 16-year-old V.G. was waiting for a bus on the corner of Oswell and Niles Streets in Bakersfield. The bus stop was located in front of the Wesley Methodist Church and V.G. intended to travel to the Valley Plaza Shopping Center. Appellant sat down a few seats away from V.G.s seat. He spoke to her first by saying, "Hello," and she responded, "Hi." V.G. answered her cell phone while they were waiting. When she was through, appellant asked her which telephone company she used. She told him Cingular and he then inquired about the games on her phone. Appellant listed the games on his own phone, including golf. This led V.G. to mention she was on her schools golf team. V.G. testified she conversed with appellant because she had been raised to be polite.
Appellant asked if she had ever played miniature golf and she indicated she had not. Appellant then told V.G. he would like to take her miniature golfing. This made V.G. feel uncomfortable and upset. She checked the time on her cell phone, indicated the bus should be arriving soon, and got up and walked away. As she began to leave, appellant told her he would like to call her sometime. V.G. responded, "No," and she walked away from appellant. She said appellant made her feel uneasy because he was a stranger, he was older, and she was not interested in going anywhere with him. Instead of taking the bus to Valley Plaza, V.G. decided to walk home.
V.G. was at school the next morning and appellant tried several times to speak to her on her cell phone. She took a final examination and then listened to a voicemail from appellant at 9:00 a.m. V.G. had a male friend answer her cell phone and instruct the caller to stop calling V.G.s number. When V.G. answered a call in the afternoon she heard appellant say "hello." V.G. immediately discontinued the call. V.G.s sister-in-law called the telephone number that appellant had left in a voicemail message. The sister-in-law advised appellant that V.G. was 16 and that appellant should stop calling her. Within a few minutes, someone called V.G.s phone but she ignored the call.
V.G. was upset and confused and told her mother about the telephone calls. V.G.s mother reported the incident to law enforcement. Kern County Sheriffs Deputy Scott Lopez contacted V.G. in response. V.G. had saved the voicemail messages and she provided the sheriffs department with the phone and password access to the voicemail messages. The jury listened to a recording of appellants voicemail messages made to V.G.s phone. Appellant stated: "Hey [V.G.]. This is, this is 717-7727. I met you yesterday um, give me a call back. Im, I just didnt answer the phone in time. Im waiting, okay. Bye. Oh, try calling me, 871-3653. Okay? Talk to you later. Bye." In another message, appellant stated: "Hey, this is Ken. Call me back [V.G.]. My number is 871-3653." Just after V.G.s sister-in-law called, appellant called and stated: "Hey [V.G.], you just called me. My number is 717-7727. Call me back at 871-um, 3653. Okay. Bye."
In a bifurcated proceeding, the trial court found true the allegation that appellant was convicted on December 13, 2004, of annoying or molesting a child (§ 647.6).
Appellants June 2005 Statements to Deputy Lopez and Detective Downs
In the late evening of June 8, 2005, Deputy Lopez contacted appellant by calling the number appellant left on V.G.s voice mail. Although the conversation was not recorded, Deputy Lopez refreshed his recollection of the conversation by reviewing his contemporaneous report. Appellant initially told Lopez he had gone to the bus stop to catch the bus and not to contact the teenage girl. Appellant said he changed his mind and did not board the bus when it arrived. According to Deputy Lopez, later in the conversation appellant admitted going to the bus stop for the purpose of contacting V.G. Appellant told Lopez he had a problem that needed to be addressed.
On June 27, 2005, Sheriffs Detective Martin Downs contacted appellant using the telephone number appellant provided to B.K. Detective Downs recorded his conversation with appellant and the prosecution played the recording for the jury. At the time of their conversation, Detective Downs was not aware that appellant claimed some form of brain damage. Downs told appellant not to contact "that little girl [B.K.] anymore." Appellant responded, "I dont even know any little girl named [B.K.]." When the defective clarified his statement and mentioned "that girl you met at the bus stop that day," appellant replied, "Okay." Appellant said he received a call from B.K. and he was just returning the call. Appellant claimed he did not know how she obtained appellants telephone number. Appellant said he did not answer the call from B.K. because he was away from his telephone at that time. Detective Downs told appellant that B.K. only knew appellant as "Ken." Downs also said B.K. did not know appellants last name. Appellant said he also did not know B.K.s last name.
Detective Downs said he first became aware of this claimed damage when defense counsel alluded to it at trial.
Appellant told Downs that B.K. had begun the conversation by asking him for the arrival time of the bus. When the detective said it was odd that a 14-year-old girl would have appellants telephone number, appellant said, "I dont know if she was fourteen." Appellant told Downs he was not going to call B.K. again and said, "Im not going to bother her anymore." Appellant told the detective he did not recall an incident in which he gave his phone number to a girl named B.K. at a bus stop near Niles and Mount Vernon in December 2004. Appellant claimed she called him months later because she wanted to party with him. He arranged to meet her at the Chevron station. The detective told appellant the conversation had been recorded and he offered to play the recording for appellant. Appellant declined to listen to the recorded conversation.
Detective Downs questioned appellant about his drives and desires with respect to younger girls. Downs asked, "Why the constant attraction to these younger girls?" Appellant responded, "I dont know what you mean." The detective asked why appellant contacted them and gave them his telephone number. Appellant said it would not happen anymore "if it ever has happened." Downs insisted the root cause of the situation needed to be explored so that no more children would be contacted. Downs asked appellant what he had done to "prevent it from being a problem." Appellant said there would be no further problems and the situation would not happen. Downs asked appellant whether he had taken steps to get counseling. Appellant said he had done so by going to the Mary Kay Shell Center. The detective asked if the sessions were helping appellant and the latter said, "Yes." Downs also asked whether appellant was now able to control his "drives and desires." Appellant answered in the affirmative and added, "I can control myself in any situation." Appellant assured Detective Downs that if he saw a teenage girl at a bus stop he would not speak or flirt with her.
In July 2005, Detective Downs and two other sheriffs deputies contacted appellant at his Oswell Street residence in Bakersfield. Appellant resided in the area described by B.K. Appellants apartment was accessed off an alleyway running north from Niles Street. The alley was almost directly across the street from the bus stop where appellant contacted B.K. Officers found 37 "Family Planning" brand condoms in a brown sack in the living room. The brown sack was located next to a bed. Appellant said he had a roommate but the roommate was not present and appellant did not know his whereabouts. Investigating officers did not obtain the telephone records for V.G., B.K., or for appellants cellular telephone.
Evidence of Uncharged Acts
T.L. was 16 years old in 2004. On July 27, 2004, T.L. got onto a bus after school and appellant also got onto the bus and sat by her. T.L. was involved in a conversation with some friends and someone mentioned drugs. Appellant interrupted their conversation and talked about "cook[ing]" drugs. The bus broke down and everyone got off. Appellant walked up to T.L. and began talking to her. He touched her face and said she was pretty. T.L. became angry. Appellant then told her he was getting a large sum of money together so he could take her all over the world to places where they could be "legal" together. Appellant told her they could have "pretty children" together. T.L. thought appellants statements were "gross" and she felt he was going to harm her.
T.L. told her mother about the incident and her mother called the police. The police asked T.L. whether she would make a pretext call to appellant and she agreed. During the pretext phone call, appellant told T.L. he wanted to see her and wanted to have sex with her. Appellant told her that if anyone asked her age, she should say she was 18. Appellants statements disturbed T.L. Appellant and T.L. agreed to meet at a Johnny Quik Market. Appellant said he would take her from the store to his house. The police transported T.L. to a position across from the store. She identified appellant and officers placed him under arrest.
In 2003, D.A., then age 14, was at the World Harvest Church in Delano. A man approached her outside of the church bathroom. D.A. identified a photograph of appellant as the man who approached her. However, she was unable to make an in-court identification. Appellant asked D.A. for her name and address. When she refused to disclose her address, appellant repeatedly asked her. D.A. told a church usher about the incident. On another occasion, appellant approached D.A. and asked for her telephone number. However, she refused to give the number to him. D.A. said she was disturbed by appellants behavior.
On another occasion in 2003, M.G., then age 14, was leaving the Sierra Theater in Delano when a man followed her. M.G. was unable to make an in-court identification of the man. However, she examined a photograph of appellant and said, "I believe its him." The man asked M.G. for her name but she refused to disclose it. He continued to follow her and asked for her name and telephone number.
DISCUSSION
I.
SUFFICIENT EVIDENCE SUPPORTS THE CONVICTION ON COUNT I
Appellant contends the felony conviction on count I violates his due process rights because there is insufficient evidence in the interaction with V.G. to support the verdict of the jury.
He specifically argues:
"Here, the alleged victim, [V.G.], was 16 years old. Appellant spoke to her while she was waiting for a bus. [V.G.] spoke on her cell phone for a while and later conversed with appellant to be polite. As the conversation evolved to the topic of golf, appellant told [V.G.] he would like to take her miniature golfing. This made [V.G.] feel uncomfortable and upset. [V.G.] left the bus stop and walked away. As she began to leave, appellant told her he would like to call her sometime. [V.G.] responded, `no, feeling uncomfortable. [¶] ...[¶]
"To sustain a conviction for annoying or molesting a child as proscribed by Penal Code section 647.6, the perpetrators actions need not be lewd in themselves, and actual touching of the child is not required. (People v. Thompson [(1988)] 206 Cal.App.3d 459, 463-468.) Count 1 did not involve any lewd acts or touching.... Here, [V.G.] testified she was annoyed and felt uncomfortable by appellants act of asking her to go miniature golfing with him, and his request that she call him. The fact that [V.G.] was annoyed and felt uncomfortable does not resolve the issues of whether there was sufficient evidence to sustain a finding that appellants conduct would, without hesitation, irritate or disturb a normal person, or whether it was designed to do so.
"The evidence on the felony count was the weakest of all the alleged and uncharged incidents. There were other counts of misdemeanor child annoying or molesting alleged with the felony charge involving [V.G.], as well as uncharged conduct involving three other girls asserted to amount to misdemeanor child annoying or molesting.... Still, during jury deliberation, the jury requested, in pertinent part, a reading of the testimony of [V.G.]. The following morning, after approximately 30 minutes of deliberation, the jury submitted a note indicating the jury no longer required the read-back of [V.G.]s testimony. About twenty minutes before a verdict was reached the jury requested read back of the testimony of [B.M.] the named victim of the offense alleged in count 3. Ultimately, the jury found appellant not guilty on count 3. Had the jury not changed its collective mind about hearing the read back of the testimony of [V.G.], there may well have been an acquittal on count 1 as well.
"With the instructions given, the other offenses were available to the jury to resolve the issue whether appellants conduct in regard to [V.G.] was motivated by an abnormal sexual interest in children, as well as whether the conduct was in joint operation with the requisite mental state (motivation by abnormal sexual interest). ... However, the other incidents do not alter or augment the actual conduct involved in count 1. When the facts of the [V.G.] case are viewed in the light most favorable to the judgment, there was not sufficient evidence to find beyond a reasonable doubt that appellants conduct was designed to irritate or disturb, or that the conduct viewed objectively would unhesitatingly disturb a normal person...."
In assessing a claim of insufficiency of the evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment. The court must determine whether the record discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Ringo (2005) 134 Cal.App.4th 870, 880.) In order to succeed in a challenge on appeal to the sufficiency of the evidence, an appellant must establish that no rational jury could have concluded as it did. The rules of appellate review require us to evaluate the evidence in the light most favorable to the respondent and presume in support of the judgment every fact a jury could have reasonably deduced from the evidence. (People v. Millwee (1998) 18 Cal.4th 96, 132; People v. Stanley (1995) 10 Cal.4th 764, 792-793.)
We may not weigh the evidence or make findings of credibility, for these are within the province of the jury. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We must only decide whether substantial evidence exists to support the inference of guilt drawn by the trier of fact. Substantial evidence includes circumstantial evidence and the reasonable inferences this evidence allows. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jurys conclusions. (People v. Quintero (2006) 135 Cal.App.4th 1152, 1161-1162.)
Section 647.6, as charged in count I of the information, states in relevant part:
"(a)(1) Every person who annoys or molests any child under 18 years of age shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment. [¶] ... [¶]
"(c)(1) Every person who violates this section shall be punished upon the second and each subsequent conviction by imprisonment in the state prison."
In contrast to section 288, subdivision (a), section 647.6, subdivision (a), does not require a touching but does require (1) conduct a normal person would unhesitatingly be irritated by and (2) conduct motivated by an unnatural or abnormal sexual interest in the victim. The Supreme Court has observed that:
"[T]he words `annoy and `molest in former section 647a (now section 647.6, subdivision (a)) are synonymous and generally refer to conduct designed to disturb, irritate, offend, injure, or at least tend to injure, another person. [Citations.] ... `Annoy means to disturb or irritate, especially by continued or repeated acts [citations]; "to weary or trouble; to irk; to offend; to disturb or irritate, esp. by continued or repeated acts; to vex; to molest ... harm; injure." (Websters New Internat. Dict. 2d ed.) [¶] ... Molest is, in general, a synonym for annoy. The term "molestation" always conveys the idea of some injustice or injury. Molest is also defined as meaning to trouble, disturb, annoy or vex. [Citation.] To molest means to interfere with so as to injure or disturb; molestation is a wilful injury inflicted upon another by interference with the user of rights as to person or property. [Citation.] Annoyance or molestation signifies something that works hurt, inconvenience or damage. [Citation.] [Citation.]
"`Annoy and `molest ordinarily relate to offenses against children, with a connotation of abnormal sexual motivation. The forbidden annoyance or molestation is not concerned with the childs state of mind, but rather refers to the defendants objectionable acts that constitute the offense. [Citation.]" (People v. Lopez (1998) 19 Cal.4th 282, 289-290.)
Accordingly, to determine whether the defendants conduct would unhesitatingly irritate or disturb a normal person, we employ an objective test not dependent on whether the child was in fact irritated or disturbed. (People v. Kongs (1994) 30 Cal.App.4th 1741, 1750.) In other words, section 647.6, subdivision (a), requires an act objectively and unhesitatingly viewed as irritating or disturbing, prompted by an abnormal sexual interest in children . Clearly, not every act—even touching with lewd intent—will produce the objective irritation or annoyance necessary to violate section 647.6. (People v. Lopez, supra, 19 Cal.4th at pp. 290-291)
Moreover, childish and wholly unreasonable subjective annoyance, arising, for example, from a childs dislike for proper correction by a teacher, is not covered by the section. The annoyance or molestation which is forbidden is in no sense a purely subjective state on the part of the child. (People v. Kongs, supra, 30 Cal.App.4th at pp. 1749-1750.)
For the most part, section 647.6 has been applied to incidents of explicit sexual conduct, where a defendant: fondled a minors genitals and had her touch his genitals (People v. Moore (1986) 185 Cal.App.3d 1005); touched a minors genitals through her clothing (People v. Monroe (1985) 168 Cal.App.3d 1205); fondled and had sexual intercourse with a minor (People v. Epps (1981) 122 Cal.App.3d 691); solicited a sex act from a minor (People v. La Fontaine (1978) 79 Cal.App.3d 176, disapproved on another point in People v. Lopez, supra, 19 Cal.4th at p. 292); grasped a minor by her buttocks and rubbed himself against her body (People v. Moore (1955) 137 Cal.App.2d 197); or exhibited his genitals to a minor (People v. McNair (1955) 130 Cal.App.2d 696). (People v. Kongs, supra, 30 Cal.App.4th at pp. 1250-1251.)
In some instances, however, the proscribed conduct was more ambiguous. In People v. Thompson (1988) 206 Cal.App.3d 459, the defendant followed the 12-year-old victim, who was riding a bicycle, in his car, slowly passing and repassing by her numerous times. At one point, the defendant shook his hand and moved his mouth as if whispering or pursing his lips. The victim became alarmed and asked a stranger for help. The appellate court found that this conduct was sufficient to sustain the defendants conviction for annoying or molesting a minor under section 647.6. (Thompson, supra, at p. 468.) In another case, the defendants offered a ride to four minor females. It became apparent to the girls that the defendants were not taking them to their requested destination, so they asked to be let out of the car. The defendants refused, and drove to an isolated place in the hills. The girls escaped when the car stalled. The court found that the defendants conduct constituted an act motivated by unnatural or abnormal sexual interest in children. (In re Sheridan (1964) 230 Cal.App.2d 365, 370-372,)
In the instant case, appellant was charged with annoying or molesting a child under section 647.6, which required proof that his conduct was motivated by an unnatural or abnormal sexual interest in the victim. (People v. McFarland (2000) 78 Cal.App.4th 489, 494.) Appellant submits there was insufficient evidence to demonstrate beyond a reasonable doubt "that appellants conduct was designed to irritate or disturb, or that the conduct viewed objectively would unhesitatingly disturb a normal person." We must disagree. In addition to conversing with V.G. and inviting her to play miniature golf, appellant repeatedly called her cell phone, called her while she was at school, and left messages for her to call him back. Appellant continued to call V.G. even after she handed her cell phone to her male friend, and the latter told appellant to stop making the calls. At one point, V.G.s sister-in-law called appellant, advised him of V.G.s age, and instructed him to stop calling V.G. Appellant nonetheless ignored the sister-in-laws admonition and called V.G. again. When V.G. testified about her initial encounter with appellant, she said appellant made her feel so uncomfortable and upset that she elected to walk home rather than stay at the bus stop and ride on public transportation. V.G. also said she became upset and confused when appellant continued to call her and leave messages on her cell phone. She ultimately informed her mother, who contacted the police department.
The direct evidence of one witness entitled to full credit is sufficient for proof of any fact, except where additional evidence is required by statute. (Evid. Code, § 411.) Under the foregoing facts and circumstances, the jury could reasonably conclude that appellants conduct would have unhesitatingly irritated or disturbed a normal child. (People v. Kongs, supra, 30 Cal.App.4th at p. 1749.) The judgment on count I is supported by substantial evidence and reversal is not required.
II.
EVIDENCE UNDER EVIDENCE CODE SECTION 1108; CALCRIM NO. 1191
Appellant contends the judgment of conviction must be reversed because he was deprived of due process by the admission of propensity evidence (Evid. Code, § 1108) and the giving of CALCRIM No. 1191 (evidence of uncharged sex offense).
Appellant initially acknowledges:
"There were three separate charged events in addition to the three uncharged events offered to prove four charged acts of annoying or molesting a child. The uncharged acts were received under Evidence Code sections 1101, subdivision (b), and 1108, and the jury was instructed with CALCRIM 375 and 1191, that the evidence could prove appellant committed the offenses for which he was being tried. Appellant acknowledges the California Supreme Court has upheld the constitutionality of Evidence Code section 1108 in People v. Falsetta (1999) 21 Cal.4th 903. Additionally, in People v. Reliford (2003) 29 Cal.4th 1007, the California Supreme Court found the 1999 version of CALJIC No. 2.50.01, conveying that the section 1108 evidence may be considered as proof of the propensity to commit the charged offense, was not unconstitutional. The Supreme Court also noted the 2002 revised version was an `improvement to the 1999 version of this instruction because it informed jurors any inference they draw from the evidence of prior sex acts, `is simply one item for [them] to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime. (Id. at p. 1016.) Appellant challenges the validity of the Evidence Code section 1108, and the corresponding instruction, CALCRIM 1191, to preserve these issues for later review."
After making these concessions, appellant goes on to argue:
"Appellant was denied due process of law by the admission of other crimes evidence under Evidence Code section 1108. Due to the manner in which the jury was instructed with CALCRIM 1191, the prosecutions burden to prove that appellants conduct was both designed to and would unhesitatingly disturb a normal person, in addition to the use permitted by CALCRIM 375, to prove appellant was motivated by an unnatural or abnormal sexual interest in the child, was lightened. Once the jury found by a mere preponderance of evidence appellant committed the uncharged offenses against [D.A.], [M.G.] and [T.L.], the relatively mild conduct involved with the charged offenses, talking to these girls, especially with regard to [V.G.], has a more sinister appearance. The conduct involving [V.G.], the 16-year-old, appellant invited to go miniature golfing, was especially mild. ... However, when viewed in the light of the interactions with [D.A.], [M.G.], and especially [T.L], the jury was apt to speculate the conduct was more culpable than the bare conduct shown by the evidence. For instance, standing alone the interaction with [V.G.] would not necessarily cause, without hesitation, a normal person to be disturbed. However, with awareness of the facts involved in the uncharged cases, especially [T.L.], where appellant purportedly stated he and she could make pretty babies together, an objective person would probably, without hesitation, find appellants conduct, even the innocuous conversations with [C.M.] and [V.G.], disturbing. The judgment must be reversed."
Appellants contention is essentially a two-pronged attack. First, he contends admission of other crimes evidence under Evidence Code section 1108 denied him due process of law. Evidence Code section 1108 states in relevant part:
"(a) 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. [¶] ... [¶]
"(d) As used in this section, the following definitions shall apply:
"(1) `Sexual offense means a crime under the law of a state or of the United States that involved any of the following:
"(A) Any conduct proscribed by Section ... 647.6, of the Penal Code."
In People v. Falsetta (1999) 21 Cal.4th 903, the Supreme Court expressly held:
"In this case we resolve a due process challenge to legislation (Evid. Code, § 1108) permitting the admission, in a sex offense case, of the defendants other sex crimes for the purpose of showing a propensity to commit such crimes. Although this provision represents a deviation from the historical practice of excluding such `propensity evidence (see § 1101, subd. (a)), the provision preserves trial court discretion to exclude the evidence if its prejudicial effect outweighs its probative value (§ 352). We conclude, consistent with prior state and federal case law, that section 1108 is constitutionally valid...." (People v. Falsetta, supra, 21 Cal.4th at p. 907, fn. omitted.)
The decisions of the California Supreme Court are binding upon and must be followed by all the state courts of California. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In view of the controlling authority of Falsetta, appellants attack on the constitutionality of Evidence Code section 1108 must be rejected.
In the second prong of his attack, appellant contends CALCRIM No. 1191, the jury instruction corresponding to Evidence Code section 1108, was invalid because it somehow lightened the prosecutors burden of proof. CALCRIM No. 1191, as read to the jury, stated:
"The People presented evidence that the defendant committed other offenses that were not charged in this case. You may consider this evidence only if the People have proved by a preponderance of evidence that the defendant, in fact, committed the offenses.
"Proof by a preponderance of evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden, you must disregard this evidence entirely.
"If you decide that the defendant committed the offenses, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not the defendant acted with the intent to obtain sexual gratification in this case.
"In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offenses and the charged offenses. Do not consider this evidence for any other purpose. Do not conclude from this evidence that the defendant has a bad character or is disposed to commit the crime.
"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 Penal Code Section 647.6. The People must still prove each element of every charge beyond a reasonable doubt."
In People v. Reliford (2003) 29 Cal.4th 1007, 1009 (Reliford ), the Supreme Court held the 1999 version of CALJIC No. 2.50.01 correctly stated the law. That instruction, as given in the trial of that case, provided:
"`Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense other than that charged in the case.
"`"Sexual offense" means a crime under the laws of a state or of the United States that involves any of the following:
"`Contact, without consent, between the genitals or anus of the defendant and any part of another persons body.
"`If you find that the defendant committed a prior sexual offense in 1991 involving S[.]B[.], 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 in 1991 involving S[.]B[.], 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.)
The Supreme Court held it was not reasonably likely that a jury could interpret the instructions to authorize conviction of the charged offenses based on a lowered standard of proof. The court noted that nothing in the instructions authorized the jury to use the preponderance of the evidence standard for anything other than the preliminary determination whether the defendant committed a prior sexual offense in 1991 involving S.B. The instructions explained that, in all other respects, the People had the burden of proving defendant guilty beyond a reasonable doubt. (Reliford, supra, 29 Cal.4th at p. 1016.)
The Supreme Court also gave tacit approval to the 2002 revision of CALJIC No. 2.50.01, stating:
"... The 2002 revision ... 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. ... [W]e 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.)
Respondent properly notes that CALCRIM No. 1191, as given in this case, is comparable to the 1999 version of CALJIC No. 2.50.01 and includes the additional language of the 2002 revision of CALJIC No. 2.50.01 that the Supreme Court characterized as "an improvement." In addition, CALCRIM No. 1191 is even more restrictive than its CALJIC predecessors because it expressly advises the jury "that evidence of another sexual offense is not sufficient alone to find the defendant guilty of the charged offenses. The People must still prove each element of Annoying or Molesting a Child, Penal Code § 647.6, beyond a reasonable doubt."
Once again, under the doctrine of stare decisis, the decisions of the Supreme Court are binding upon and must be followed by all the state courts of California. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) Appellants contentions must be rejected under the authority of Falsetta and Reliford.
III.
THE EVIDENCE CODE SECTION 352 OBJECTION
Appellant contends the trial court denied him due process and a fair trial by overruling his Evidence Code section 352 objection to admission of the uncharged conduct.
Appellant specifically argues:
"When evidence of other criminal conduct is offered to prove some material fact other than a character trait, its relevancy must be substantial. (People v. Kronemyer (1987) 189 Cal.App.3d 314, 347.) In this case, in addition to its inherently prejudicial nature, the other crimes evidence was more inflammatory than the conduct involved in the charged offenses, especially with respect to the [T.L.] case. The prejudice side of the balancing scales was clearly weighted against allowing these other incidents to be considered by the jury. The other crimes evidence essentially required three mini-trials. The proffered evidence raised a serious danger of undue prejudice of confusing the issues before the jury, focusing its attention on the collateral incidents rather than the charges to be determined. These three separate incidents also consumed undue time in three mini-trials involving more witnesses (eight) than called in proving the three events underlying the four alleged offenses (six). The nature of the evidence was not only a tempting basis to believe appellants conduct in the instant case met the objective standard for conviction in addition to serving as proof of the requisite motivation for the conduct, it was also a basis to desire appellant be punished for the uncharged offenses even if the charged conduct did not quite meet the objective standards for conviction, tending to confuse the issues [¶]...[¶] ... The trial court abused its discretion in overruling appellants objections to the evidence being unduly prejudicial...."
Evidence Code 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."
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.) The ordinary rules of evidence, including the application of Evidence Code section 352, do not infringe on the accuseds due process right to present a defense. (People v. Frye (1998) 18 Cal.4th 894, 948.) A reviewing court will not disturb a trial courts exercise of discretion under Evidence Code section 352 unless it is shown the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner. (People v. Frye, supra, at p. 948; accord People v. Karis (1988) 46 Cal.3d 612, 637.)
After hearing extensive arguments by counsel, the trial court ruled in the instant case:
"I dont have a balancing problem in terms of remoteness, dissimilarity to crimes, charged in what occurred in `03 and `04 on the [M.G.], [D.A.], and [T.L.] matters. I find that the probative value there outweighs any prejudicial factors."
A trial court should not exclude highly probative evidence unless the undue prejudice is unusually great. "Undue prejudice" refers not to evidence that proves guilt. Rather, it refers to evidence that prompts an emotional reaction against the defendant and tends to cause the trier of fact to decide the case on an improper basis. 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. All evidence tending to prove guilt is prejudicial or damaging to the defendants case. The stronger the evidence, the more it is "prejudicial." (People v. Walker (2006) 139 Cal.App.4th 782, 806.)
The evidence of appellants conduct toward T.L, D.A., and M.G. was relevant because the three victims were ages 16, 14, and 14, respectively. Thus, they were similar in age to the victims of the crimes charged in the instant case. In all three uncharged cases, appellant engaged in conduct demonstrating an abnormal interest in young teenage girls. The charged conduct occurred between 2003 and 2005; the uncharged conduct occurred in 2003 and 2004. Although the conduct involving T.L. was more sexually explicit than the conduct underlying the charged offenses, we cannot say the trial court abused its discretion in admitting the evidence of the uncharged offenses. While the evidence was highly probative, it was not of a type likely to cause the trier of fact to decide the case on an improper basis. The testimony of V.G., B.K. and C.M., combined with appellants statements to Detective Downs, established the elements of the section 647.6 charges.
The trial court did not exercise its discretion in an arbitrary, capricious or patently absurd manner and reversal for alleged evidentiary error is not required.
IV.
ADMISSION OF APPELLANTS STATEMENT ABOUT COUNSELING
Appellant contends the trial court denied him due process by overruling his objection to admission of his pretrial statement about getting counseling.
Appellant summarizes the issue in the following manner:
"Appellant spoke to a detective during a recorded conversation. During the conversation, the detective led appellant to the subject of whether appellant was receiving any counseling. The detective sought to have appellant admit he was receiving counseling to help appellant control drives and desires with regard to contacting young girls. Any admission that this was the situation implied by appellants response to the detectives questioning was misleading and potentially unduly prejudicial. The trial court abused its discretion in denying appellants request to exclude this evidence....
"Counsel for appellant objected to the prosecutors motion to introduce appellants statement about getting counseling during a telephone conversation with a detective, as unduly prejudicial and of limited probative value under Evidence Code section 352. Counsel pointed out the statement was misleading rather than a clear admission that appellant was being counseled for a problem with self-control around young teenaged girls, although in the manner it seemed to suggest this was the situation, it was unduly prejudicial. Trial court found the statements relevant to show intent and motivation in making contact with the girls. The jury heard a recording of appellant speaking to a detective over the telephone about the [B.K.] incident. During the course of that conversation, the detective insisted the root cause of the situation was important to explore in order to insure no more children would be contacted, and asked appellant what he had done to `prevent it from being a problem. Appellant stated there would be no further problems and the situation would not happen. The detective asked if appellant had taken steps to obtain counseling, and appellant advised he had, and he went to the Mary Kay Shell place. The detective asked if they were helping appellant and appellant said, `Yes. The detective asked whether appellant was now able to control, `those drives and desires. Appellant stated, `Yes, and added, `I can control myself in any situation. The jury was instructed it could consider appellants statements before trial, if they found appellant made such statements, along with the other evidence, in reaching the verdict...."
On appeal, appellant argues that admission of the evidence was an abuse of discretion because the evidence was unduly prejudicial. Appellant submits the evidence tended to confuse and mislead the jury in assessing whether appellant acted with the requisite mental state. He further submits his admission of receiving counseling was not relevant to the issues before the jury. He also contends the questions and statements of Detective Downs, the interviewing officer, put an "inflammatory spin" on appellants responses.
Evidence Code section 353 states:
"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:
"(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and
"(b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice."
A miscarriage of justice should be declared only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable a result more favorable to the appealing party would have been reached absent the error. (People v. Rains (1999) 75 Cal.App.4th 1165, 1170.)
Evidence of appellants statements regarding counseling was not unduly prejudicial under all of the circumstances of the instant case. The young victims gave vivid and detailed testimony and the tape-recorded phone messages and phone conversations of appellant provided a substantial evidentiary foundation for the verdicts of guilt. In light of this evidence, appellants mild statements to Detective Downs regarding counseling would not have evoked an emotional reaction against appellant and would not have caused the jury to decide the case on an improper basis. A result more favorable to appellant would not have been reached absent the admission of the challenged statements and reversal is not required.
V.
MOTION FOR NEW TRIAL
Appellant contends the trial court erroneously denied his motion for new trial based on the giving of CALCRIM Nos. 1190 and 301 at trial.
CALCRIM No. 1190, as given to the jury, stated:
"Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone."
CALCRIM No. 301, as given to the jury, stated:
"The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all of the evidence."
Appellant asserted in his July 17, 2006, motion for new trial:
"Defendant respectfully asserts that CALCRIM 301 was the only appropriate instruction and that it was error to give[] CALCRIM 1190. Stated differently, CALCRIM 301 was sufficient by itself in providing the jury with the law as to proof of a fact by a single witness, whether that witness is a complaining witness or alleged victim, a prosecution or defense witness, or the defendant testifying on his or her own behalf.
"It is not error for the Court to provide both instructions in a rape case[.] (See People v. Gammage (1992) 2 Cal.4[th] 693 ....) Rape is clearly a sexual assault case. There is no authority that the instant charges warrant the giving of CALCRIM 1190; Defendant contends that CALCRIM 301 in and by itself was sufficient. [¶] ... [¶]
"The prejudice ... arises from the preference that is given to a complaining witness under CALCRIM 1190 (no need for corroboration) as to any other witness covered in CALCRIM 301 where the jury is admonished to `carefully review all the evidence before concluding that the testimony of one witness proves a fact. As Justice Arabian points out in the Gammage decision, there is a balancing between the right of a victim and a right of a testifying defendant in rape cases. In Defendants case, the prosecution is no more entitled to CALCRIM 1190 than it would be in a prosecution for receiving stolen property." (Fn. omitted.)
On July 28, 2006, the court conducted a contested hearing and denied the new trial motion, stating in a lengthy explanation:
"The way I approach it is I look at the CJER Mandatory Criminal Jury Instructions Handbook, 2005 to 2006.... So I look under sex offenses at Page 71. And the first listing is 2.72. And they have annoying or molesting a child. And thats the 647.6, both felony and misdemeanor....
"And so then I turn to the Section 2.105, sua spon[t]e instructions on corroborating evidence. And for single witness testimony it says: A jury in a sex offense case that is given CALJIC 227 — and we, in essence, gave the CALCRIM version of that, 301, Single Witnesses Testimony — permitting finding of fact to be based on single witness testimony once evidence is carefully reviewed may also instruct with CALJIC 10.60.
"And so when we look at 10.60, we dont see the word `assault. [¶] It reads: `Sexual Crimes, Corroboration Not Necessary. Thats the heading. Thats CALJIC 10.60. And it reads: `It is not essential to a finding of guilt on a charge of — blank. And then it states: `Sexual activity with the testimony of the witness of with whom sexual relations is alleged to have been committed be corroborated with other evidence.
"Ive always used this instruction when any type of a sex offense is involved because that, to my understanding, is the law.
"So then I look at 10.60 to get the CALCRIM answer to that. And thats, I believe, 1190 of CALCRIM. And that reads — the heading — title of it: `Other Evidence Not Required to Support Testimony in Sex Offense Case. And it reads: `Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone.
"Well, we didnt really have any evidence, so to speak, of assault here. And I dont know why that instruction contains the word `assault when the heading doesnt. But in terms of whether it would require a motion for new trial or is a reversible error, I think what we have to do is look at all of the instructions together. And I find that when you read all of the instructions that I gave as a composite group, as we instruct the jury to do, there is no prejudice involved.
"Now, CALJIC — or I should say the CALCRIM instruction that I gave, Duties — 200, Duties of Judge and Jury, we instructed the jury: Pay careful consideration to all of these instructions and consider them together.
"Then we gave two reasonable doubt instructions....
"I gave — as I do in all criminal cases that I handle, I gave a pre instruction, 103, reasonable doubt instruction. Then I gave the 220 reasonable doubt after the attorneys argued; and gave 226, which says: `You may believe all, part, or none of any witnesss testimony. Consider the testimony of each witness and decide how much of it you believe.
"And then I gave 300, All Available Evidence ....
"Then we gave the single witness, 301 instruction....
"Then I indicated we also gave 1190, `Other Evidence Not Required to Support Testimony in Sex Offense Case. [¶] ... [¶]
"I also wanted to point out that the case of People versus Hollis, 235 Cal.App.3d ... at 1521 and, specifically, Page 1526. That talks about the old 10.60, which is the equivalent to CALCRIM 1190; and then the CALJIC 2.22, which is — we gave in the 200 series of CALCRIM. It states that when addition to these instructions the jury is also instructed in the words of CALJIC 2.27, and that is the instruction that talks about ... you have to look at the testimony of each witness, they indicate a balance is struck which protects the rights of both the defendant and the complaining witness.
"CALJIC 10.60, which is equivalent to — Im adding this — the equivalent to 1190 is an accurate statement of the law. And we do not believe that giving it upsets this balance. [¶] ... [¶]
"In applying the case citations that I gave and my review of the facts in this case, I do not see that if it is an error to have given the instruction with the word `assault in it, the error, at best, is harmless. Theres a safeguard provided by all of the instructions considered as a whole.
"And, further, the instructions, when you look at them as a whole and you look at the admissions made by the defendant at the time of trial, the verdict conviction is corroborated by his testimony. Not only his direct testimony to the victims, but, also, on the pretext recorded telephone conversations."
On appeal, appellant contends denial of the new trial motion must be reversed because there is no authority which specifically holds it appropriate to provide both CALCRIM Nos. 301 and 1190 in a prosecution for a violation of section 647.6. A criminal defendant may move for a new trial on specified grounds (§ 1181). Among these are misdirection of the jury or error in a question of law (§ 1181, subd. 5), the grounds cited in the instant case. The criminal defendants right to seek a new trial in a criminal case parallels that of the losing party in a civil matter to seek a new trial on specified grounds affecting the fairness of the prior proceedings. Generally speaking, the trial court has broad discretion in ruling on a new trial motion and the ruling will be disturbed only for clear abuse of that discretion. However, refinements to this general rule have developed. When a trial court denies a new trial, article VI, section 13 of the California Constitution obliges the appellate court to conduct an independent examination of the proceedings to determine whether a miscarriage of justice occurred. As in any appeal from a final judgment, the reviewing court must determine for itself whether errors denied a fair trial to the party against whom the judgment was entered. (People v. Ault (2004) 33 Cal.4th 1250, 1260-1262.) Generally speaking, a motion for new trial is addressed to the discretion of the trial court and the trial courts ruling will not be disturbed on appeal absent a clear abuse of discretion. (People v. Hinks (1997) 58 Cal.App.4th 1157, 1160.) However, when reviewing a ruling on a new trial motion pursuant to section 1181, subdivision (5), we determine de novo whether there was an error of law in the course of the trial. (People v. Hinks, supra, 58 Cal. App.4th at p. 1160; People v. Montgomery (1976) 61 Cal.App.3d 718, 729.)
In People v. Gammage (1992) 2 Cal.4th 693, 700-701 (Gammage ), our Supreme Court explained:
"Although [CALJIC Nos. 2.27 and 10.60] overlap to some extent, each has a different focus. CALJIC No. 2.27 focuses on how the jury should evaluate a fact (or at least a fact required to be established by the prosecution) proved solely by the testimony of a single witness. It is given with other instructions advising the jury how to engage in the fact-finding process. CALJIC No. 10.60, on the other hand, declares a substantive rule of law, that the testimony of the complaining witness need not be corroborated. It is given with other instructions on the legal elements of the charged crimes."
The court concluded that it was proper for the court to give both instructions in a sexual misconduct case. (Gammage, supra, 2 Cal.4th at p. 702.) Appellant attempts to distinguish Gammage from the instant case by noting that Gammage related to violent sexual offenses, such as rape. However, the Supreme Court did not expressly draw such distinction, ultimately holding it proper to give CALJIC Nos. 10.60 and 2.27 (the predecessors of CALCRIM Nos. 1190 and 301) in "cases involving sex offenses." (Gammage, supra, at p. 702.) Thus, the trial courts instruction of the jury with CALCRIM Nos. 1190 and 301 was proper and the court did not abuse its discretion in denying appellants motion for new trial.
VI.
CUMULATIVE ERROR
Appellant contends the cumulative impact of the alleged errors necessitates reversal of the judgment of conviction. He predicates cumulative error on four factors: (1) the evidence of prior acts probably confused the jury because jurors were not told that appellant was charged with a crime or punished for the prior acts; (2) the court gave conflicting instructions on the manner of assessing witness credibility and the convictions were based primarily on the testimony of each of the alleged victims; (3) the court abused its discretion in allowing appellants pretrial statement about getting counseling; and (4) the jury conducted lengthy deliberations despite the numerous victims and the attempt to prove guilt of each count based upon an overall pattern in multiple cases.
In a close case, the cumulative effect of multiple errors may constitute a miscarriage of justice. (People v. Bunyard (1988) 45 Cal.3d 1189, 1236; People v. Holt (1984) 37 Cal.3d 436, 458-459.) Theoretically, the "cumulative errors doctrine" is always applicable in criminal cases. The litmus test is whether defendant received due process and a fair trial. Generally speaking, an appellate court (1) reviews each allegation; (2) assesses the cumulative effect of any error; and (3) determines whether it is reasonably probable the jury would have reached a result more favorable to the defendant in their absence. (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.)
We have devoted a substantial amount of text to the instant appeal and a second detailed review of appellants contentions is unnecessary here. Although appellant on appeal has made numerous allegations of error, we have not found any errors, separately or in combination, affecting the verdict. (People v. Bloom (1989) 48 Cal.3d 1194, 1232.) In our view, there was no accumulation of errors constituting a miscarriage of justice (Cal. Const., art. VI, § 13) in the instant case and reversal is not required. (People v. Bolden (2002) 29 Cal.4th 515, 567-568.).
DISPOSITION
The judgment is affirmed.
We Concur:
WISEMAN, J.
GOMES, J.