Opinion
C042440.
10-28-2003
THE PEOPLE, Plaintiff and Respondent, v. DALE EUGENE HAWKINS, Defendant and Appellant.
A jury convicted defendant Dale Eugene Hawkins of the following: two counts of unlawful sexual intercourse with a minor more than three years younger than defendant (Pen. Code, § 261.5, subd. (c)); four counts of oral copulation with a person under age 18 (Pen. Code, § 288a, subd. (b)(1)); two counts of penetration with a foreign object of a person under age 18 (Pen. Code, § 289, subd. (h)); and four counts of unlawful sexual intercourse with a person aged 17 (Pen. Code, § 261.5, subd. (b)). Additionally, in a bifurcated proceeding, defendant admitted to having four prior serious or violent felony convictions within the meaning of Penal Code sections 667 (b)-(i) and 1170.12 and to serving two prior separate prison terms within the meaning of Penal Code section 667.5, subdivision (b). The trial court sentenced him to an aggregate term of 200 years to life in state prison.
On appeal, defendant contends the judgment must be reversed because the trial court erred in admitting evidence of his prior sexual offense pursuant to Evidence Code section 1108.[] As a result, defendant contends he was denied his constitutional right to a fair trial. We find no error and shall affirm the judgment.
All further section references are to the Evidence Code unless otherwise designated.
FACTUAL BACKGROUND
Athena K. met defendant through a telephone dating service in July 1998. Athena K. was 16 years old. Defendants date of birth is March 19, 1958, making defendant 40 years old at the time he met Athena K.
When Athena K. first spoke with defendant, she told him she was 16 years old. Defendant told her his name was Chris Thomas and that he was also 16 years old. They made plans to go out and defendant called Athena the following day. She gave defendant directions to her apartment, where she lived with her abusive father. Athenas mother no longer lived in the house.
Athena testified she thought defendant looked older than 16 when she met him. When she asked him about it, defendant claimed he had a thyroid disorder which made him appear older than he was. Athena said she believed defendants explanation. Following their first date, Athena and defendant talked on the phone on several occasions. Athena testified she began to date defendant despite not being attracted to him because she "thought it would be nice to date a rich guy."
After coming home late from one of her dates with defendant, Athena got in a serious argument with her father. That night, Athenas father told her to hand over her keys and get out of the house. Athena packed some of her belongings and went to stay with the family of her friend, Tiffany. After a few days Tiffanys family told Athena there wasnt enough room in the house and she needed to make other living arrangements.
Athena called defendant and, when she explained her situation, he asked her to move in with him and his grandmother. Because Athena felt she had nowhere else to go and because she had neither a job nor any money, she agreed to move in with defendant. When Athena moved in with defendant, they shared a bedroom in his apartment. Prior to moving in with defendant, there had been no sexual activity in their relationship other than kissing.
On August 18, 1998, Athena celebrated her 17th birthday with defendant and his family. At the party, they gave her a cake decorated with "Happy 17th Birthday." About this time, defendant told Athena his real name was Dale, not Chris, that he was 28 years old, and that the woman he introduced as his grandmother was really his mother.
On September 1, 1998, defendants mother moved out of the apartment. Shortly thereafter, the relationship between Athena K. and defendant became physical. Athena and defendant had sexual intercourse and Athena performed oral copulation on defendant. Defendant also took Athena to pornography stores, rented pornographic videos and bought Athena lingerie. Moreover, defendant would not allow Athena to leave the apartment without him. Athena testified she was confined to the apartment and not even allowed to get the mail without defendant accompanying her.
Defendant began to bring other men to the apartment with the intention of masturbating while watching Athena have sex with them. One of the men defendant brought home was Randy Cox, whom defendant introduced to Athena as his boss. The first time Cox came over, defendant told Athena to put on some lingerie. Defendant then ordered Cox and Athena to get on the floor and began to masturbate while watching them have sexual intercourse and oral sex. The second time Cox came over, defendant told Athena to get in the bath. Defendant again masturbated while watching Athena and Cox have sexual intercourse.
On another occasion a man named Richard, whom defendant met in a pornography store, came to the apartment. Defendant told Athena to put on some lingerie and to get on the floor. Defendant fondled Athenas breast while Richard licked her clitoris and put his finger in her vagina and anus. Subsequently, Richard and Athena had sexual intercourse while defendant watched and masturbated. Richard came over on another occasion during which he and Athena had sexual intercourse as well as oral sex. Defendant masturbated while watching them.
A similar incident occurred when a neighbor, Toby Murphy, came to defendants apartment. Defendant, Murphy and Athena went to the bedroom and defendant ordered Athena to orally copulate Murphy. As was usual, while he was masturbating, defendant was instructing Athena on what to do and telling her what she was doing wrong.
On another occasion a man named Chris came to defendants apartment. Defendant insisted Athena take Chris into the bedroom. Chris began to kiss Athena, but said he was uncomfortable because defendant was watching. As soon as defendant left, Athena and Chris began having sexual intercourse; however, as soon as defendant walked back into the room, Chris stopped. Soon afterward defendant forced Athena to call a telephone chat line against her will. Athena spoke with a man named David who later came over to the apartment. While at the apartment, defendant watched as Athena had both intercourse and oral sex with David.
Additionally, defendant ordered Athena to masturbate with her vibrator while he watched. Athena testified she submitted to all of these acts because she thought she was "supposed to" or defendant would make her move out of the apartment. Athena testified she was afraid of being homeless. The relationship continued in this manner until the end of October 1998, when Athena finally moved out of defendants apartment. At that time, she went to live with her mother.
The Prior Conviction
At trial, the court permitted the prosecutor, pursuant to Evidence Code section 1108, to introduce evidence concerning defendants prior conviction for the sexual assault of 12-year-old Jodi S. Defendant was a friend of Jodis mother. One day, defendant picked Jodi S. up at her mothers house and told her he was going to take her to his house to swim with his children. Once they arrived at defendants house, he told Jodi to go into his room and put on her bathing suit. In reality, defendant did not have any children. Instead of swimming that day, defendant came into the bedroom while Jodi S. was changing and sexually assaulted her. Defendant touched her breast, put his finger in her vagina and licked her vagina.
DISCUSSION
I. The Jodi S. Testimony
Defendant contends the trial court abused its discretion under section 1108 and violated his right to due process by admitting evidence of his prior sexual assault on Jodi S. We disagree.
Section 1101, subdivision (a)[] "establishes a general rule that character evidence is inadmissible to prove a defendants conduct on a specific occasion." (People v. Branch (2001) 91 Cal.App.4th 274, 280.) However, contrary to this general rule of exclusion, section 1108[] allows into admission evidence of prior sexual offenses committed by a defendant based on the premise that the evidence is circumstantially relevant to show a defendants disposition or propensity to commit the charged sexual offense. (People v. Falsetta (1999) 21 Cal.4th 903, 915.)
Section 1101, subdivision (a) states: "Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." However, subdivision (b) does allow the admission of a crime, civil wrong or other act to prove a fact (such as motive, intent, common plan, or identity) other than disposition to commit the charged offense.
Section 1108, subdivision (a) states: "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."
In Falsetta the California Supreme Court affirmed the constitutionality of section 1108 against a due process challenge. (21 Cal.4th at p. 917.) The court held a defendants due process rights are sufficiently protected because the statute requires a court to "engage in a careful weighing process under section 352" prior to admitting evidence under section 1108. (Ibid.) Consequently, because section 352 saves section 1108 from the due process challenge, defendant argues the trial court failed to properly weigh the testimony under section 352.
Under section 352, a trial court may, in its discretion, exclude evidence of prior sexual misconduct "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." (§ 352.) In People v. Harris (1998) 60 Cal.App.4th 727, we set forth a series of factors that help focus a section 352 analysis. The five factors a court should consider when determining whether to admit evidence under section 1108 include: (1) the inflammatory nature of the evidence; (2) the probability of confusing the jury; (3) the degree to which the evidence is "remote"; (4) the consumption of time required to present the evidence; and (5) the probative value of the evidence. (Id. at pp. 737-740.) We will examine each of the five Harris factors.
1. Inflammatory Nature of the Evidence
The first factor is whether the prior offense was stronger and more inflammatory than the charged offense so as to require exclusion. (60 Cal.App.4th at p. 738.) It was not.
In Harris, this court held the challenged evidence was inflammatory in the extreme and should have been excluded. (Ibid.) There, the defendant, a mental health nurse, was charged with orally copulating a female patient and having sexual intercourse with a female outpatient. (Id. at pp. 730-732.) The prior conviction in Harris involved a brutal attack that occurred when the defendant, who at that time was the manager of an apartment complex, entered a female tenants apartment. (Id. at p. 733.) The defendant beat the tenant until she was unconscious, then used a sharp instrument to tear through the muscles from her vagina to her rectum and finally stabbed her in the chest with an ice pick. (Ibid.) We acknowledged that the charged crimes, which involved taking advantage of two emotionally vulnerable women, were significantly different in nature and quality than the "violent and perverse attack on a stranger . . . ." (Id. at p. 738.) Because of the greater severity of the prior assault, we held the inflammatory nature of the evidence of the prior assault weighed "sharply in favor of exclusion." (Ibid.)
In contrast, here the evidence of defendants prior sexual assault is no more inflammatory than the current offense. The testimony of Jody S. involved a single incident during which she briefly stated defendant touched her breast, put his finger in her vagina and licked her vagina. In contrast to the short testimony provided by Jodi S., Athena K. gave detailed, sexually explicit testimony about how defendant repeatedly forced her to participate in demeaning sexual situations over a period of months.
While the details provided by Jodi S. may be no more inflammatory, defendant maintains her testimony should have been excluded as prejudicial in part because Jodi S. is mildly disabled and therefore, allowing her to take the stand to accuse defendant of raping her was enough to inflame the passions of the jury, resulting in undue prejudice. This claim is without merit.
In applying section 352, "prejudicial" is not synonymous with "damaging." (People v. Branch, supra, 91 Cal.App.4th at p. 286.) All evidence that tends to prove guilt is damaging to the defendants case. (Ibid.) Rather, the prejudice that section 352 is designed to avoid is that which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. (Ibid.)
At the time of trial Jodi S. was an adult woman, thus her testimony was much less likely to invoke an emotional response from the jury than would testimony from a 12-year-old girl. Moreover, while Jodi S. may have had tears in her eyes while testifying, there is nothing in the record to suggest she became so upset or sobbed so violently upon recalling the prior act that the court was forced to call a recess. Under these circumstances, we find it highly unlikely that Jodi S. was able to "uniquely evoke an emotional bias" against defendant. Accordingly, we conclude the testimony was not more inflammatory than the charged offense.
2. Probability of Confusion
The second Harris factor is whether there was a high probability the jury would confuse the issue and punish the defendant for the prior offense. (People v. Harris, supra, 60 Cal.App.4th at pp. 738-739.) There was not.
In Harris, we held the admission of the challenged evidence increased the probability of the jury confusing the issue and convicting the defendant for the prior assault. (Ibid.) There, the prosecution presented to the jury a redacted version of the facts along with a stipulation that the defendant was convicted of burglary. (60 Cal.App.4th at pp. 734-735.) We found these circumstances would have, at best, led the jury to conclude "the defendant escaped appropriate rape charges and was merely convicted of burglary, leaving the rape victim unrevenged." (Id. at p. 738, orig. emphasis.) Because the jury was likely to punish the defendant for the prior assault, we held the probability of confusing the jury was high and therefore the evidence weighed "in favor of exclusion." (Id. at p. 739.)
In contrast, here there is no risk that evidence of the prior sexual assault confused the issue at trial. The assault involving Jodi S. was distinct in time and circumstance from the assault on Athena K. The jury was also told defendant had already served time in prison for the sexual assault on Jodi S. Furthermore, at the close of trial, the trial judge properly instructed the jury on the relevance of Jodi S.s testimony.[] Because the prior act evidence was unlikely to confuse the issue in the minds of the jurors, the Harris standard did not mandate exclusion of Jodi S.s testimony.
Defendant contends the trial court should not have instructed the jury pursuant to CALJIC No. 10.42, which sets forth the elements of Penal Code section 288, subdivisions (a) and (b), in relation to the prior assault. Defendant maintains this instruction may have confused the jury regarding whether or not defendant had already been convicted for the prior offense. First of all, we note that in his closing argument defense counsel informed the jury that defendant had served time for the Jodi S. conviction. Additionally, the court did not err in giving this instruction. The trial court properly instructed the jury pursuant to CALJIC No. 2.50.01 regarding the relevance of the prior act evidence. CALJIC No. 2.50.01 provides that if the jury finds defendant committed a prior sexual offense, it may, but is not required to infer that defendant had a disposition to commit sexual offenses, although prior act evidence is not sufficient by itself to prove beyond a reasonable doubt that defendant committed the charged crimes. (CALJIC No. 2.50.01 (2001).) The court then informed the jury that they could not consider the prior act evidence unless they find the prosecutor proved by a preponderance of the evidence that defendant committed the prior sexual offense within the meaning of Penal Code section 288. Therefore, it was necessary for the trial court to instruct the jury with Penal Code section 288. Additionally, there was no chance for confusion because the trial court was clear that Penal Code section 288 applied only to the "sexual offenses other than those for which [defendant] is on trial."
3. Remoteness
The third Harris factor is whether the prior offense occurred so far in the past that it was unlikely to be an accurate predictor of a predisposition to commit the charged offense. (People v. Harris, supra, 60 Cal.App.4th at pp. 738-739.) It did not.
"In theory, a substantial gap between the prior offenses and the charged offenses means that it is less likely that the defendant had the propensity to commit the charged offenses." (People v. Branch, supra, 91 Cal.App.4th at p. 285.) In Harris, we held that in determining whether an incidents remoteness weighs against admissibility, a court must consider both the similarity between the past act and charged offense as well as whether the defendant led a blameless life in the interim. (Id. at p. 739.) There, the prior act was committed 23 years before the charged act and the defendant was paroled 17 years before the charged act occurred. (Ibid.) This court held that "[a]lthough there is no bright-line rule, 23 years is a long time" and therefore the remoteness of the evidence weighed "strongly in favor of exclusion." (Ibid.)
In contrast, the prior offense in this case was not so remote in time as to mandate exclusion of the testimony. There was only a difference of eight years between the commission of the prior act and the charged acts and defendant was on parole when he committed the offenses here. Furthermore, the two incidents, although not identical, are similar in that both involve defendant using deceit as a means of establishing a relationship with minor females and then abusing that relationship to commit sexual assaults on the females. Additionally, while the age of the victims may be different at the time of the assault, the difference between the defendants age and the victims age was approximately the same in both cases.[] Because the prior act evidence was not too dissimilar or too remote in time, the Harris standard did not mandate exclusion of Jodi S.s testimony.
In 1990, at the time of the assault on Jodi S., she was 12 years old and defendant was 32 years old. The difference in their ages was 20 years. In 1998, at the time of the charged assaults against Athena K., she was 17 years old and defendant was 40 years old. The difference in their ages was 23 years.
4. Consumption of Time
The fourth Harris factor is whether admission of the prior act evidence consumed such a disproportionately large amount of trial time so as to require exclusion. (People v. Harris, supra, 60 Cal.App.4th at p.739.) It did not.
In Harris, we held that because the challenged evidence occupied only 25 pages of transcript, the trial court could not find this factor weighed in favor of exclusion. (Ibid.)
Here, this factor weighs even more heavily in favor of admission than it did in Harris. The testimony of Jodi S. consumed only five pages of transcript. Therefore, under the Harris standard, the length of time required for testimony of defendants prior offense was not so lengthy as to mandate exclusion of that testimony.
5. Probative Value
The fifth and final factor is whether the prior offense had any probative value. (People v. Harris, supra, 60 Cal.App.4th at pp. 739-740.) It did.
In Harris, we noted that, in determining probative value, the trial court properly considered "the degree of similarity of the prior and current offenses, as similarity would tend to bolster the probative force of the evidence." (60 Cal.App.4th at p. 740.) However, this court went on to state that the evidence need not be so similar to the current offenses as to meet the requirements of section 1101 in order to be admissible. (Ibid.) In Harris we found the prior conduct evidence was "so totally dissimilar to the current allegations" because the only thing the trial judge could point to was the fact that all three women were Caucasian and in their twenties or thirties. (Ibid.) Because there was no meaningful similarity between the prior act and the charged offenses we found there to be a lack of significant probative value, a fact that weighed "strongly in favor of excluding" the prior act evidence. (Id. at pp. 740-741.)
In contrast, here the testimony given by Jodi S. is similar enough to provide probative value. Here, both acts occurred in defendants home, defendant used deceit to establish a relationship with both victims and both victims were in a vulnerable position. The evidence also shows defendant engaged in sexual activity with girls under the age of 18. Moreover, the two principal issues here are whether defendants sexual activity with Athena K. was consensual and if defendant actually knew that Athena K. was underage. His prior conduct may not be identical to the present offenses, yet it still shows that defendant has a history of forcing vulnerable, young girls to perform nonconsensual acts. Accordingly, the testimony accomplishes the purpose of section 1108 — that is, Jodi S.s testimony tended to bolster the credibility of Athena K.s testimony that the sexual acts were nonconsensual. Accordingly, because the prior act evidence provided probative value, the Harris standard did not mandate exclusion of Jodi S.s testimony.
"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. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion `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. [Citations.] [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125, orig. emphasis.) Here, even though defendants prior sex offense was not identical to the present offenses, the trial courts careful discussion of the probative value and prejudicial effect of the evidence showed that the court properly understood its responsibility under section 352 and nothing more was required. (See People v. Garceau (1993) 6 Cal.4th 140, 182.) Accordingly, the trial court did not abuse its discretion under section 352 by admitting the Jodi S. testimony. Furthermore, because the trial court properly considered section 352, defendant was not denied due process.
II. The Stipulation
Defendant further claims that even if the evidence was not required to be excluded under section 352, the trial court should have required the prosecution to accept defendants stipulation to the conviction rather than allowing Jodi S. to testify. Defendant contends the failure of the trial court to do so amounted to an abuse of discretion. This contention is without merit.
Once the trial court ruled that the testimony of Jodi S. could be admitted under section 1108, defendant offered to stipulate that he was convicted of the crime against Jodi S. The court allowed the prosecutor to consider the proposed stipulation overnight. The following day, the prosecutor rejected the stipulation and, despite an objection by defendant, the court refused to mandate acceptance of the proposed stipulation.
Quoting People v. Garceau, supra, 6 Cal.4th at page 182, defendant acknowledges the general rule that "the prosecution in a criminal case `cannot be compelled to accept a stipulation if the effect would be to deprive the states case of its persuasiveness and forcefulness." In Garceau, over the objections of the defense, the prosecution attempted to introduce into evidence several photographs and tissue samples. (6 Cal.4th at p. 182.) The defense immediately offered to stipulate; however the prosecution rejected the proffered stipulation and the evidence was admitted. (Ibid.)
The Supreme Court rejected the defendants argument that it was error for the judge not to require the prosecution to accept the stipulation. There, the Supreme Court held "[t]he probative value of the challenged photographs, jawbone and tissue samples . . . clearly extended beyond the scope of the defenses offers to stipulate. The prosecution therefore was not obligated to present its case in the sanitized fashion suggested by the defense." (6 Cal.4th at p. 182.) Accordingly, because the Supreme Court found the challenged evidence to be probative without being unduly prejudicial, it ruled the trial court did not abuse its discretion by admitting the evidence or by not requiring the prosecution to accept the defendants offer to stipulate. (Ibid.)
Similarly, here, there was no abuse of discretion by the trial court. According to the general rule, the prosecution is allowed to admit any testimony or other evidence that is relevant to the case and which would bolster the effectiveness of the case. Here, the Jodi S. testimony was relevant and added to the "persuasiveness and forcefulness" of the prosecutions case. If forced to accept the proffered stipulation, the jury would only learn that defendant was convicted and served time for a sexual assault. However, the fact that defendant had served a prison term for sexual assault would not show to the jury that defendant had used deceit as a means of establishing trust in a relationship with young girls and that he then abused that trust to take advantage of them sexually - all of which are elements the prosecution was attempting to establish. Rather, these elements could only effectively be shown by Jodi S.s testimony.
Moreover, as analyzed above, the record reflects the trial court engaged in a careful weighing of both the probative and prejudicial impact of the evidence. Because the trial court rightly found the evidence to be probative without being unduly prejudicial and because the evidence bolstered the forcefulness of the prosecutions case, the court was not obligated to require the prosecution to accept defendants proffered stipulation. Accordingly, there was no abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur: HULL, J. and ROBIE, J.