Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA104089 Michael A. Cowell, Judge.
Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, Acting P. J.
An information charged Niek Groen with three counts of committing a lewd act on a child under the age of 14. A jury convicted him of one count, found him not guilty of another, and deadlocked on the third count, which the court dismissed. Groen contends the trial court erred in admitting evidence of prior sexual offenses as well as evidence of a book and DVD’s depicting images of naked boys police discovered in a search of his home. We affirm.
BACKGROUND
Facts of The Charged Crimes
In 2004 Groen was released from prison after serving a sentence for child molestation. In 2007, while living in a trailer park, Groen became acquainted with 11 year-old Dylan D. who lived in the same trailer park with Richard Arce, Dylan’s mother’s boyfriend. Groen’s trailer sat directly across a parking area from Arce’s trailer. Dylan’s mother lived in a car parked outside her mother-in-law’s trailer in the same park.
In the fall of 2007, when his mother was jailed, Dylan began living in a foster home. He continued in foster care even after his mother’s incarceration ended but visited her and his grandmother at the trailer park. Dylan’s older brother Mikey sometimes visited his family at the trailer park on the same days that Dylan did. Occasionally some of the boys who lived in the same foster care home accompanied Dylan to the trailer park. After visiting with his mother, Dylan and the other boys usually played ball games in the parking area between Groen’s and Arce’s trailers.
Groen was friendly with Dylan’s mother but they were not romantically involved. He took Dylan and his mother to Knott’s Berry Farm and sometimes bought Dylan’s mother clothes and other gifts. Groen also took them for meals at Norms, Sizzlers, and Burger King. Over the course of a few months Groen gave Dylan several gifts, including a computer game, a cell phone, clothes, and bicycles. He gave Dylan the cell phone for his birthday on December 1, 2007.
Groen occasionally picked Dylan up from the foster home and brought him to the trailer park to see his family. On one occasion Groen gave the foster mother carpet samples from the carpet company where he was employed.
When visiting his mother Dylan often went into Groen’s trailer to use the bathroom, get a drink, rest, or watch movies.
Count 1
A few days before Christmas 2007, Groen called to Dylan to come into his trailer. Dylan complied and lay down because his back hurt. After massaging Dylan’s back with a massager, Groen put his hand down Dylan’s pants and fondled his buttocks, then turned Dylan over onto his back, unbuttoned his pants, and touched his penis. Dylan told Groen to stop and tried to push Groen’s hand away but Groen kept his hand on Dylan’s penis, and told him to be quiet. Dylan ran out of the trailer and down the street. He later returned to the trailer and Groen drove him back to his foster home.
Dylan told no one about what happened because he felt it was his fault.
Over the next few days, Dylan saw and spoke to Groen several times without incident. On Christmas Day, Dylan, his mother, brother, sister, and Arce visited Groen’s trailer to celebrate the holiday. Groen gave Dylan a bicycle and presented each of Dylan’s family members with gifts as well.
Counts 2 and 3
A day or so after Christmas Groen played an adult pornographic video for Dylan. He watched only part of it and asked Groen to take him home. Groen complied. A few days later Dylan and his brother Mikey were playing football in the parking area of the trailer park. When Dylan went into Groen’s trailer to use the bathroom, Groen stopped Dylan, held onto Dylan’s shoulder, and placed his hand down the front of Dylan’s pants. Dylan ran outside and rejoined his brother. Later that day the boys were still playing ball when Groen called out to Dylan. Dylan entered the trailer and sat down. Groen touched Dylan’s penis under Dylan’s underwear with his hand. Dylan told him to stop, and said that it did not “feel right, ” but Groen pushed Dylan’s hand away. Dylan fled the trailer and called out for his brother.
Again, Dylan told no one. He was afraid that if he disclosed what happened he would not be able to spend time with his brother.
After this incident Groen called Dylan on his cell phone nearly every day but Dylan did not answer because he did not want to talk to him. When his bicycle broke, however, he called Groen for help. They drove to a bicycle shop where, at Dylan’s request, Groen bought him a new bicycle.
Groen’s Arrest
On January 16, 2008, Dylan telephoned his mother and told her that Groen had touched him inappropriately. Later, when Arce and his mother arrived at the foster home, Dylan told them what had transpired in more detail. Although Arce and Dylan’s mother told the foster mother to keep Dylan away from Groen, they did not call police.
Leaving the foster home, Arce went directly to Groen’s trailer and called for him to come out. Arce cursed at Groen, called him “a sick mother something, ” a “punk, ” and smashed the windshield of Groen’s truck with a shovel. From inside the trailer Groen said, “‘I’m sorry, I’m sorry, I’m sorry.’” Within minutes, police arrived and arrested Arce for vandalism. Police also detained Groen.
Search of Groen’s Home
On January 17, 2008, police interviewed Dylan at his elementary school. The next day police executed a search warrant on Groen’s trailer where they found a framed photograph of Dylan on a bedside table, a massager, a book entitled “The American Boy” containing photographs of young teenage boys, and two DVD’s entitled “Crimean Vacation.” The DVD’s depicted young boys, between the ages of 11 and 13, naked or in bathing suits, playing in either the ocean or in a sauna or Jacuzzi. A portion of one of the DVD’s was played for the jury at trial.
Prior Sexual Offenses
John W. was called as a witness by the prosecution. He testified that he met Groen in the early 1980s when he was between nine and eleven years old. Groen was the coach of his soccer team and often drove him home from practice in his van. While circling the park, driving home, or before letting him out of the van, Groen would have John remove his pants or unzip the zipper of his pants and Groen would masturbate John or orally copulate him. At Groen’s direction, he would then perform the same acts on Groen.
Once, John, one of his friends, his mother, and Groen shared a cabin in Big Bear. John was in bed with his mother when Groen approached and tried to turn John over. John resisted Groen by clinging to his mother. On another occasion Groen took John to the soccer shop that Groen’s brother owned and Groen told him to pick out anything that he wanted. In the back room of the shop, Groen asked John if he knew what semen looked like and made John masturbate him until Groen ejaculated. On another occasion, Groen visited John’s home where the two roughhoused and threw eggs at each other. Groen took John into the shower to wash him off and Groen orally copulated and masturbated him.
At some point John’s older brother realized what was happening and alerted neighbors who apparently notified police.
In 1982 Groen was charged with molesting John. He pleaded guilty to those charges.
Another victim, Brian B., was also called as a witness by the prosecution. He testified that he met Groen in 1977 or 1978 when he was five or six years old. Groen coached his older brother’s soccer team and, because they shared Dutch heritage, was considered a family friend, entitled to respect and deference. Brian’s parents gave Groen a key and regular access to their house. Groen began molesting Brian when Brian was between five to seven years old and the molestation continued for approximately six years. Groen orally copulated Brian and fondled his penis. Groen also forced Brian to orally copulate and masturbate him, and once attempted to sodomize Brian. Once Groen had Brian and one of Brian’s young friends masturbate in front of him while he watched.
When the molestation began Groen warned Brian not to tell anyone or he or his family would be harmed. Brian did not tell anyone because he did not understand what was happening to him.
Brian occasionally saw Groen being intimate with Brian’s older brother and at some point realized that Groen had been molesting his older brother as well.
Groen was charged with molesting Brian, and after pleading guilty to those charges in 1986, he was sentenced to prison.
Groen’s Testimony
Groen testified in his own defense and admitted molesting both John and Brian.
He explained that he had desired sex with young boys but had resisted the urge until he met John. He admitted taking advantage of opportunities to be alone with the boy. He pleaded guilty to molesting John because he knew he was guilty and believed that what he did was wrong.
He also admitted taking advantage of the opportunities to be alone with Brian whom he molested, on average, every week, or week and a half. He pleaded guilty to molestation charges involving Brian because, as in the case of John, he was guilty, knew that what he had done was wrong, and was remorseful about his actions. He was sentenced in 1986 and sent to Chino State Prison, then to Folsom State Prison, and from there to the California Men’s Colony in San Luis Obispo where he had access to counseling and treatment. He underwent treatment for a year and a half in 1990 to 1991. He realized that he was homosexual and while in prison engaged in homosexual activity.
Doctors evaluated Groen in 1998 and determined that he was likely to reoffend. He was sent to Atascadero State Prison where Groen studied relapse prevention methods designed for pedophiles, met with a social worker every other day, and attended group therapy sessions for pedophiles. An evaluation in 2004 resulted in a split decision, with one expert concluding that he was not likely to reoffend and another expert concluding that he was likely to reoffend. A different pair of experts interviewed Groen and determined that he was unlikely to reoffend and Groen was released from prison on September 17, 2004. He registered as a sex offender and in 2005 bought a trailer home from his brother and moved into the trailer park.
Groen no longer desired young boys after his release from prison. He had a several month adult homosexual relationship in 2005 to 2006. He also had had sexual relations a few times with Dylan’s mother. He otherwise satisfied his sexual desires by masturbating while looking at adult pornographic materials.
Groen adamantly denied that he had ever touched Dylan inappropriately. He testified that when he had committed acts of child molestation in the past he had admitted the charges and pleaded guilty. Groen did not plead guilty to the current charges because he was not guilty and was upset and surprised by Dylan’s false accusation of molestation. Groen also denied Arce’s claim that Groen had said that he was sorry as Arce vandalized his truck.
He denied “grooming” Dylan and his mother to trust him so that they would allow him to be alone with Dylan in order to molest Dylan. Groen explained that he gave Dylan and his mother money and gifts, not to “groom” them but, because they were homeless, penniless, and needed his assistance. He denied that he kept Dylan’s photo as a “trophy, ” although he admitted that he had kept a photo of Brian’s brother and that his possession of these photos was consistent with a lapse toward reoffending. He explained that Dylan’s mother had given him the photo for safekeeping because the pit bull she and Arce kept in Arce’s trailer was likely to damage it.
Groen explained his possession of the “Crimean Vacation” DVD’s and “The American Boy” book. A man he met in prison worked in a video store and Groen had asked him for John Wayne movies. The man brought these materials as well because he knew that Groen had been in prison for child molestation. On cross-examination, Groen admitted that he had masturbated while watching the DVD’s and that such behavior could be viewed as a lapse toward reoffending.
Character Witnesses
Numerous neighbors from the trailer park, Dylan’s foster mother, and several family members testified that Groen was always kind and neighborly and that they had never seen him act, and had never heard rumors that he had acted, inappropriately with any child since his release from prison.
Rebuttal
In rebuttal, Detective Anderson testified that during an interview after his arrest Groen said that he presumed he had been arrested for molesting Dylan. He described Dylan as a “little con” who always tried to get Groen to buy him things. He denied molesting Dylan and said that as a result of his therapy in prison he no longer desired sex with young boys, but admitted that he fought the temptation to molest every day.
Procedural Background
An information charged Groen with two counts of committing forcible lewd acts on a child under the age of 14 (Pen. Code, § 288, subd. (b)(1); counts 1 and 3) and with one count of committing a lewd act on a child under the age of 14 (§ 288, subd. (a)). As to all three counts the information alleged that because of Groen’s felony convictions the charges came within section 667.61, subdivisions (a) and (d) (providing for a life term). The information alleged with respect to counts 1 and 2 that Groen had suffered two serious or violent felony convictions for purposes of five-year enhancements (§ 667, subd. (a)(1)), two serious or violent convictions within the meaning of the Three Strikes law (§§ 667, subds. (b) through (i), 1170.12, subds. (a) through (d)), and that he had served two prison terms (§ 667.5, subd. (b)).
Further unmarked statutory references are to this Code.
The jury convicted Groen of the charge in count one and acquitted him of the charge in count 3. The jury deadlocked on the charge in count 2 and the court declared a mistrial on that count and later dismissed it in the interest of justice. (§ 1385.)
The court heard and denied Groen’s motion for new trial. The court sentenced Groen to 75 years to life, plus five years for each of the two enhancements (§ 667, subd. (a)), for a total term of 85 years to life in state prison.
Groen appeals from the judgment.
DISCUSSION
Prior Sex Offenses
Groen moved in limine to exclude the evidence of his prior sex crimes against John and Brian as more prejudicial than probative, claiming that the evidence presented a “grave risk” of confusing the issues and misleading the jury into convicting him of the current charges based on events which occurred many years ago. The prosecutor argued that evidence of his prior offenses was relevant and admissible under Evidence Code sections 1101 and 1108 to show propensity to commit child molestation, to show his motive and intent, and to refute his claim of rehabilitation. In weighing the probative value of the evidence against its prejudicial effect under Evidence Code section 352, the court concluded that “there is a very distinct prejudicial effect to such evidence coming in. But the probative value is also very significant, undeniable, and squarely within the provisions of 1108 and the legislative intent. [¶] So the motion to exclude evidence of those prior acts will be denied.”
Groen contends the evidence of his acts of child molestation against John and Brian was unduly prejudicial and that its admission violated his right to due process. We disagree.
Evidence Code section 1108 authorizes the admission of evidence of prior sex offenses to establish a defendant’s propensity to commit a sexual offense, subject to exclusion under Evidence Code section 352. Evidence Code section 1108, subdivision (a) provides that “[i]n 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.” Evidence Code section 352 specifies that “[t]he 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.”
In People v. Falsetta (1999) 21 Cal.4th 903, the Supreme Court upheld the constitutionally of Evidence Code section 1108 against a due process challenge concluding that the weighing process of Evidence Code section 352 was a sufficient safeguard against undue prejudice from such propensity evidence. The Falsetta court set out the criteria that a trial court should consider in ruling on the admissibility of evidence of prior sexual offenses. “Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]” (Id. at p. 917.)
A trial court’s ruling under Evidence Code sections 1108 and 352 is reviewed for abuse of discretion. (People v. Lewis (2009) 46 Cal.4th 1255, 1286; People v. Falsetta, supra, 21 Cal.4th at p. 919.)
The offenses involving John, Brian, and Dylan shared many similarities making the probative value of the evidence very strong. In each instance, Groen befriended a young boy and his family, gained their trust, and when opportunities arose to be alone with the boys, forcibly molested them. It was not necessary that the circumstances in each case be identical, or “mirror images, ” for the evidence to have had substantial probative value.
The risk of undue prejudice was minimal. Because Groen was convicted of the charges involving John and Brian and sentenced to prison, “the jury would not be tempted to convict [him] simply to punish him for the other offenses, and... the jury’s attention would not be diverted by having to make a separate determination whether [he] committed the other offenses.” (People v. Falsetta, supra, 21 Cal.4th at p. 917.) Although the prior offenses occurred long ago, they continued to be highly relevant to the current charge. He was on probation for his 1982 conviction for committing lewd acts against John when he was convicted and sentenced to prison in 1986 for having committed lewd acts against Brian, and he remained incarcerated for the next 24 years and four months until his release on September 17, 2004. Thus, less than three years elapsed between his release from prison and his molestation of Dylan. His admissions and guilty pleas eliminated any possible uncertainty whether he had committed the prior offenses which, in turn, reduced the possibility of juror confusion.
Groen, however, argues that the evidence of the prior sexual offenses resulted in unfair prejudice. He claims that because the jury convicted him of only one count, was unable to reach a verdict on another count, and acquitted him of the third count, the jury must have disbelieved Dylan’s testimony but nevertheless felt compelled to convict him of some charge based on the evidence of the prior sexual offenses. We are not persuaded. Indeed, the jury’s verdict convicting him of only one of three counts shows that the jury was able to, and did consider, the evidence carefully and did not convict him based only on the commission of his prior offenses.
Admission of DVD and Book Depicting Young Boys
Groen moved in limine to exclude from evidence the books and DVD’s found in a search of his home as more prejudicial than probative. The court excluded from evidence a book on homosexuality as having minimal probative value. The court admitted a book entitled “The American Boy” which depicted young boys in various stages of undress, and allowed the prosecution to play for the jury a few minutes of one of the DVD’s entitled “Crimean Vacation” depicting mostly naked young boys. The court reasoned that “a large part of the defense in this case, as I understand it, seems to be that the defendant has, as a consequence of prolonged therapy no longer has any interest in, sexual interest in young boys, I think it is relevant. It may not prove any fact in this case in terms of disputed fact alleged to have occurred, but it certainly addresses very directly the question of intent and motive.”
Groen contends the court erred in admitting the book and DVD depicting naked young boys because the evidence was irrelevant and, even if relevant, more prejudicial than probative. He further contends that its admission so unfairly prejudiced him that he was denied his due process rights to a fair trial. We again disagree.
The material was relevant to show that he was sexually attracted to young boys. Such possession has a tendency in reason to support the inference that he acted on that attraction and did molest Dylan. (Evid. Code, § 210; People v. Memro (1995) 11 Cal.4th 786, 865 [the defendant’s possession of magazines and photographs depicting clothed and unclothed youth was relevant to whether the defendant sexually molested a young boy].)
We also reject Groen’s contention that the probative value of the evidence was substantially outweighed by its prejudicial effect and should have been excluded under Evidence Code section 352. Apparently, none of the images depicted sexual activity or touching, thus reducing the evidence’s potential to create an emotional bias in the jurors. (See People v. Osband (1996) 13 Cal.4th 622, 678 [although an average member of the community could have found some of the photographs quite disturbing, they were not presented in a gratuitously inflammatory manner and were not unduly prejudicial].) Also, because the images were not sexually explicit, the evidence was less inflammatory than was the evidence of the charged crimes which involved actual fondling of Dylan’s penis and buttocks. (People v. Ewoldt (1994) 7 Cal.4th 380, 405 [the potential for prejudice is reduced where the uncharged acts are no stronger or inflammatory than the charged acts].) Finally, the court only permitted a few minutes of the “Crimean Vacation” DVD to be played before the jury. This limited viewing consumed very little time and further reduced the evidence’s potential for prejudice. Finally, it was not the images themselves that were so prejudicial, but Groen’s own testimony that he masturbated while watching these videos.
Because we hold that the evidence was relevant and not more prejudicial than probative we also reject Groen’s contention that its admission deprived him of a fair trial in violation of his due process rights.
DISPOSITION
The judgment is affirmed.
We concur: CHANEY, J., JOHNSON, J.