Opinion
C077492
03-28-2017
THE PEOPLE, Plaintiff and Respondent, v. CURTIS DEE HOLFORD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F01360)
While serving a sentence at Avenal State Prison for possession of child pornography, defendant Curtis Dee Holford used a contraband cell phone to contact D.G., the mother of his four-year-old son, and persuaded her to engage in a number of sexual acts with the child, some of which she photographed and sent to defendant's cell phone. Based on two such acts, defendant was convicted by jury of oral copulation with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b)) and committing a lewd or lascivious act on a child under the age of 14 years (id., § 288, subd. (a)). In a bifurcated proceeding, the trial court found defendant was previously convicted of a strike offense within the meaning of the three strikes law (id., §§ 667, subds. (b)-(i), 1170.12) and served two prior prison terms (id., § 667.5, subd. (b)). The trial court sentenced him to serve an indeterminate prison term of 30 years to life plus a consecutive determinate prison term of 23 years.
On appeal, defendant contends: (1) the trial court prejudicially erred and violated his federal constitutional rights by admitting into evidence testimony that defendant had previously committed other sexual offenses against his two daughters, K. and B., who were minors at the time of these crimes, as evidence of his propensity to molest children; (2) the trial court committed prejudicial misconduct and further violated defendant's constitutional rights by "twice inform[ing] the jury that it believed [B.] was lying when she said she could not remember whether [defendant] had molested her"; and (3) the abstract of judgment must be corrected.
We conclude the challenged "other crimes" evidence was properly admitted under Evidence Code section 1108 and did not result in a violation of defendant's federal constitutional rights. Defendant's second contention is forfeited by his failure to object to the claimed misconduct in the trial court. Anticipating forfeiture, defendant asserts his defense counsel rendered constitutionally deficient assistance by failing to so object, but has failed to demonstrate counsel's performance fell below an objective standard of reasonableness. We do, however, agree the abstract of judgment must be corrected. We shall therefore affirm the judgment and order the necessary corrections to the abstract of judgment.
Undesignated statutory references are to the Evidence Code.
FACTS
This is not the first time defendant's felony sexual misconduct has made its way to this court. In January 2012, we affirmed a judgment sentencing him to serve 14 years in state prison for possession of child pornography. (People v. Holford (2012) 203 Cal.App.4th 155, 158-160 (Holford).) It was during defendant's incarceration for that crime that he committed the crimes involved in this case.
Sexual Abuse of J.
Defendant and D.G. began a sexual relationship in 2007, after he finished serving a prison term for committing a lewd act on his 15-year-old daughter, K. (Holford, supra, 203 Cal.App.4th at p. 161.) D.G. gave birth to defendant's son, J., the following February. The same month, law enforcement officers conducted a parole search of defendant's residence and found child pornography on his computer's external hard drive. He was convicted of possession of this material and sentenced to serve 14 years in state prison. (Id. at pp. 158-160.)
The jury did not hear evidence of this child pornography conviction. We mention it simply to place the current crimes in context.
In 2012, D.G. ran into defendant's brother and mother during a trip to the grocery store with J., who was then four years old. At some point after that, she gave defendant's mother her cell phone number for defendant to contact her from prison. A few days later, defendant called her from a contraband cell phone he had in prison. The two began talking and sending text messages to each other on a regular basis, "[s]ometimes every day, three or four times a day, sometimes every other day." Eventually, defendant asked D.G. to marry him when he got out of prison, which made her happy because she "thought he was going to change" and wanted him to be a part of their son's life. Several months after defendant reestablished contact with D.G., he started asking her to molest their son and to send him pictures of the abuse. According to her testimony, she complied because defendant said his family was watching her and threatened to have his friends come over to beat her up if she did not do what he asked.
Resolution of the issues raised in this appeal does not require a description of each sex act D.G. performed on her four-year-old son at defendant's direction. It will suffice to state that on one occasion, at defendant's request, she orally copulated J. and sent pictures of the act to defendant. On another occasion, also at defendant's request, D.G. had J. get on top of her while they both were naked and also sent pictures of that act to defendant. These acts supplied the basis for defendant's convictions in this case.
D.G. testified against defendant pursuant to a negotiated plea agreement that included her serving 20 years in prison for two counts of child molestation.
The abuse came to light about a month after it began, when D.G. disclosed what she had been doing to a therapist who was working with J. following an unrelated Child Protective Services (CPS) referral. According to D.G., she told the therapist about the abuse because defendant had told her over the phone that he wanted one of his daughters to move in with them after he got out of prison so he could have sex with both of them. When the therapist informed D.G. he was required to report the abuse, she claimed to have had "a dwarf or a midget" play the role of her son in the sex acts she photographed and sent to defendant. The therapist then told D.G. it would be easy to tell the difference between an adult with dwarfism and a child, causing her demeanor to become "nervous" and "frantic." She admitted during her testimony at trial that her claim about getting a little person to pose as her son was a lie.
While D.G. did not name this daughter, the record supports a reasonable inference she was referring to defendant's middle daughter, A., who was 22 years old at the time of trial. A. testified defendant was not in her life as a child and she began contacting him through letters and online communication in 2011, when she was 19 years old. Eventually, they began talking on the phone and defendant asked her to send him nude pictures of herself. A. initially refused, but after persistent requests from defendant, she ultimately sent him the requested pictures. Defendant also told A. he wanted to live with her and engage in various sex acts with her.
After the therapist referred the matter to law enforcement officials, two detectives came to D.G.'s apartment to question her about what she had told the therapist. D.G. initially claimed she lied about the abuse because she was angry at defendant. Later in the interview, she admitted defendant asked her to send him pictures of herself orally copulating J. and that she complied with this request. She also said she deleted the pictures after sending them, also at defendant's request. The detectives took D.G.'s cell phone for forensic analysis and returned it to her later in the day, at which point one of the detectives persuaded her to engage in a pretext phone call with defendant.
During the call, D.G. told defendant the police took her phone and looked through it, but "didn't find anything." Defendant asked if they said anything about him. D.G. said they did not. Defendant responded, "I hope you're telling me the truth," and asked whether his name was in her phone and whether she deleted his phone number. After briefly talking about D.G.'s CPS case, she asked: "So baby are you gonna erase those pictures for me?" Defendant said he would, adding that "something fishy" was going on, and asking: "You sure ain't nobody there?" A short time later, D.G. told defendant the police said they would be in touch with him, prompting defendant to respond: "What about the - my - my pictures of me are they on there?" D.G. said she erased them. Defendant said he "need[ed] to get rid of [his] damn phone" and told D.G. she "need[ed] to be smart right now." D.G. said: "I don't wanna go to jail for what happened. The other pictures that . . . we took and stuff. Uh, uh, the pictures I sent you, the inappropriate ones, I don't want to go to jail for what happened." Defendant responded: "We took - I didn't take anything." D.G. acknowledged she took the pictures and said she would tell the police she lost her phone if they came back. Defendant suggested she trade phones with someone and then had her hang up and call him back so she could check to make sure his voicemail message was not his voice and did not include his name in the message. After D.G. did so, defendant called her back to confirm and said: "I don't know what the hell is goin' on with why they comin' at your phone. But you better be careful," and: "Keep your mouth shut. If they ever come back and talk to ya again quit fuckin' talkin'." D.G. then asked defendant what she should say if the police asked her about taking pictures of J. Defendant answered, "Hell no," and "have you lost your mind?" He also told her if she said "something like that," she would be the one in trouble. When D.G. said she did not do anything he did not ask her to do, defendant responded: "I didn't ask you to do anything. So don't even start that shit with me. Yeah. You need to knock that shit off."
After the phone call, concerned defendant may be aware of the investigation, one of the detectives initiated contact with Avenal State Prison to attempt to obtain his cell phone before he could dispose of it. The cell phone was recovered after defendant threw it on the floor in one of the prison's dormitories. While the Subscriber Identity Module (SIM) card was not recovered, defendant admitted he broke it in half and put it in his mouth prior to being placed in handcuffs in the dorm, and he spit it out in the yard as he was escorted out of the building.
Prior Acts of Child Molestation
In addition to the foregoing evidence, the prosecution adduced testimony from two of defendant's daughters, K. and B., concerning various prior acts of child molestation they claimed he committed against them.
K. was 28 years old at the time of trial. She testified that when she was 15 years old, she went over to her grandmother's house with defendant. While in the garage, defendant put his hand beneath her shirt and touched her breasts. At some point, K. left the garage, went into the bathroom, and locked the door. Defendant followed, knocked on the bathroom door, and apologized for his behavior.
B. was 20 years old at the time of trial. She testified that when she was seven years old, defendant touched her "inappropriately" while she was also at her grandmother's house. When asked to provide details of the abuse, B. repeatedly said she did not remember and refused to review her prior statements to police in an attempt to refresh her recollection. Eventually, in response to leading questions, B. admitted defendant touched the outside of her vaginal area with his hands and touched her chest with his hands and mouth. She also admitted defendant had her put her mouth on his penis and also had her stroke his penis with her hand, which caused him to ejaculate.
In a single case brought against defendant in 2001, charging him with one count of committing a lewd or lascivious act on K. and multiple counts of committing sex offenses against B., a jury convicted defendant of the count involving K. and acquitted him of the counts involving B. (See Holford, supra, 203 Cal.App.4th at p. 181.) The jury in this case was informed by stipulation that K. and B. were the named victims in the prior case and a certified copy of the court documents relating to that case was also admitted into evidence.
DISCUSSION
I
Admission of Evidence of Prior Acts of Child Molestation
Defendant contends the trial court prejudicially erred and violated his federal constitutional rights by admitting into evidence the aforedescribed testimony that he previously molested K. and B. He is mistaken.
In Holford, supra, 203 Cal.App.4th 155, we held the admission of K.'s testimony regarding the same lewd conduct to which she testified in this case was admissible under section 1108 to prove defendant was predisposed to engage in the sexual misconduct charged in that case, i.e., possession of child pornography, and did not violate defendant's constitutional rights. (Id. at pp. 182-186.) We explained: "Section 1108 permits ' " 'consideration of . . . other sexual offenses as evidence of the defendant's disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense.' " ' [Citation.] As this court has previously observed, ' "[i]n enacting . . . section 1108, the Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of . . . section 1101." [Citation.]' [Citations.]" (Id. at p. 182.) There, the "evidence showing defendant had a sexual interest in underage girls was relevant to the issue of whether he knowingly possessed the child pornography" at issue in that case that depicted sex acts with an underage girl. (Id. at pp. 182-183.)
Rejecting defendant's due process challenge to the admission of this testimony, we noted our Supreme Court rejected a similar challenge in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), and again in People v. Loy (2011) 52 Cal.4th 46, and explained we are bound by these decisions. (Holford, supra, 203 Cal.App.4th at p. 183.) We also explained the reason our Supreme Court rejected such a challenge in Falsetta was "the availability of section 352 as a safeguard against unduly prejudicial evidence." (Id. at p. 184.) "Thus, any due process assertion necessarily depends on whether the trial court sufficiently and properly evaluated the proffered evidence under section 352." (Id. at p. 185.) Turning to this analysis, we concluded the trial court "carefully balanced the probative value against the section 352 counterweights, including the potential for undue prejudice, consumption of time and the potential for misleading or confusing the jury," and therefore, the admission of K.'s testimony did not violate defendant's right to due process. (Ibid.)
Similarly, in this case, the testimony from both K. and B. regarding defendant's prior acts of child molestation against them was highly probative in that it tended to show his predisposition to engage in the charged conduct. Indeed, here, the prior acts of abuse were more similar to the charged conduct than in the previous case because the charged conduct in this case involved child molestation committed against one of defendant's children. While the details were necessarily different due to the fact defendant molested his son through an intermediary due to his presence behind bars, each incident involved sexual abuse perpetrated against defendant's underage children. "Although similarity is not required for admissibility under section 1108 [citation], . . . the probative value here was enhanced by these similarities." (Holford, supra, 203 Cal.App.4th at p. 186.) Nor was the molestation of K. and B. remote. As we also explained in Holford, defendant had only been released from prison for about a year when a surprise parole search revealed his possession of the child pornography that sent him to prison in that case (ibid.), and it was during his incarceration for that crime that he committed the crimes against J. in this case. Turning to the section 352 counterweights, while both K. and B. testified in this case, as opposed to just K., the conduct testified to by these prior victims was not inflammatory compared to defendant's conduct of procuring the sexual abuse of his four-year-old son by that child's mother in order to gratify his sexual desires behind bars. Moreover, our observations in Holford that the evidence was presented quickly by adult witnesses, defendant was punished for his crime against K., and the jury was properly instructed on how to use the evidence and on the burden of proof also apply in this case. (Ibid.)
Nevertheless, defendant argues that while he was punished for the crime committed against K., he was acquitted of the charges involving B., and therefore, "there is a real danger that the jurors were inclined to convict in this case based on their belief that [he] should have been punished for the offenses against [B.]" This cuts both ways. We acknowledge the fact defendant was not punished for sexually abusing B. could potentially make her testimony more prejudicial by tempting the jury "to convict . . . simply to punish him for the other offenses" committed against her. (Falsetta, supra, 21 Cal.4th at p. 917.) On the other hand, B.'s testimony regarding the prior acts of abuse was far from convincing. She claimed several times not to remember the specific conduct defendant was alleged to have committed against her and only admitted specific conduct occurred in response to leading questions. Thus, while the jury's attention might have been "diverted by having to make a separate determination whether defendant committed the other offenses" against B. (ibid.), the jurors may well have gone with the other jury's conclusion these prior offenses were not sufficiently proven. In any event, the question is not whether B.'s testimony was more prejudicial than that provided by K. The question under section 352 is whether it was substantially more prejudicial than it was probative. (Holford, supra, 203 Cal.App.4th 167.) The answer is no.
Defendant counters this observation by arguing the claimed judicial misconduct set forth below increased the likelihood the jury believed B.'s testimony admitting the abuse occurred and disregarded her claims she could not remember. For reasons expressed in the following section of this opinion, we reject defendant's claim the trial court indicated to the jury B. was lying when she said she did not remember the abuse.
For these reasons, we conclude the admission of the other crimes evidence in this case did not render defendant's trial fundamentally unfair. Accordingly, his due process rights were not violated.
II
Judicial Misconduct
Defendant also claims the trial court committed prejudicial misconduct and further violated his federal constitutional rights by "twice inform[ing] the jury that it believed [B.] was lying when she said she could not remember whether [defendant] had molested her." This contention is forfeited by defendant's failure to object to the alleged misconduct below. (See People v. Sturm (2006) 37 Cal.4th 1218, 1237; People v. Snow (2003) 30 Cal.4th 43, 77-78.) Anticipating this conclusion, defendant asserts his defense counsel rendered constitutionally deficient assistance by failing to so object. We disagree.
A.
Additional Background
As mentioned, B. testified that when she was seven years old, defendant touched her "inappropriately" and in a "sexual way" while she was at her grandmother's house. When asked to provide details of the abuse, B. repeatedly said she did not remember and refused to review her prior statements to police in an attempt to refresh her recollection. The first time the prosecutor referred B. to these prior statements, B. said: "Well, if you can go off of what I said, I think can you do that for the rest of [the] time." This response prompted the following exchange between the trial court and the witness:
"THE COURT: Here's what has to happen. She's going to ask you questions, and then the law is that you answer the questions; okay? So
"THE WITNESS: What if I don't remember?
"THE COURT: Unfortunately, that doesn't matter because
"THE WITNESS: Okay. I can't answer a question if I don't remember it; right?
"THE COURT: Yeah. If you pretend not to remember something[ --]
"THE WITNESS: I don't remember because I was only seven.
"THE COURT: I'm just saying if you don't remember something, just say I don't remember.
"THE WITNESS: I don't remember.
"THE COURT: Okay. If you pretend not to remember something, then we'll be here all morning.
"THE WITNESS: I don't -- how can you know if I'm pretending?
"THE COURT: I'm just saying. I'm just saying.
"THE WITNESS: Okay."
B.
Analysis
Defendant did not object to the trial court's statements to B. regarding her claimed lack of memory and has therefore forfeited the issue on appeal unless objecting would have been futile or an admonition would not have cured the prejudice flowing from the claimed misconduct. (People v. Sturm, supra, 37 Cal.4th at p. 1237.) Defendant argues an objection and admonition "would not have cured the error" because, "[b]y essentially accusing the witness of lying, it is hard to see how the trial judge could have persuaded the jury to ignore his observation, or to pretend that it didn't happen." If we agreed with defendant's characterization of the trial court's statements as accusing B. of lying, we might also agree with his forfeiture argument. But that is not the case. Viewed in context, the trial court was simply informing B. she had to answer the prosecutor's questions rather than have the prosecutor "go off of what [she] said" previously, and while she was not allowed to "pretend not to remember something," she could answer, "I don't remember" if that was in fact the case. Even if we were to assume this could have suggested to the jury the trial court did not believe B.'s claimed lack of memory, it did not so strongly suggest such disbelief that a curative admonition would not have dissuaded the jury of this notion. Accordingly, the claim is forfeited.
Nor has defendant demonstrated his trial counsel rendered constitutionally deficient assistance by failing to object to the claimed misconduct. " 'In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because his [or her] "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." [Citations.] Second, he [or she] must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." ' " (In re Harris (1993) 5 Cal.4th 813, 832-833; Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) Here, as previously indicated, we do not view the trial court's statements as indicating to the jury that it believed B. was lying about her inability to remember details of the abuse. Instead, the trial court simply informed her she could not say, "I don't remember" unless that was true. Not only was this not objectionable, but competent counsel might reasonably have concluded this exchange between the trial court and B. would serve to reinforce her subsequent "I don't remember" answers in the eyes of the jury.
Because defendant has failed to carry his burden of demonstrating his trial counsel's performance fell below an objective standard of reasonableness, we must reject his claim of ineffective assistance of counsel.
III
Correction of the Abstract of Judgment
Defendant points out, and the Attorney General concedes, the abstract of judgment must be corrected to reflect the two one-year prior prison term enhancements were imposed pursuant to section 667.5, subdivision (b), rather than section 667, subdivision (a). We shall order the correction.
Additionally, the Attorney General points out, and defendant does not dispute, the abstract of judgment must be further corrected to reflect the correct sentence imposed upon defendant for the crimes committed in this case. The trial court imposed a term of 30 years to life for Count 1 (15 years to life, doubled pursuant to section 667, subdivision (e)(1), because of defendant's prior strike conviction) and a term of 16 years for Count 2 (eight years, also doubled because of the prior strike). The abstract of judgment incorrectly reflects a term of 15 years to life for Count 1 and a term of 8 years for Count 2. While the doubling of these terms is included in the abstract, it is incorrectly listed as an "enhancement" of 15 years to life and 8 years, respectively. We shall also order this to be corrected.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment to: (1) reflect the two one-year prior prison term enhancements were imposed pursuant to Penal Code section 667.5, subdivision (b); (2) reflect defendant was sentenced to serve a term of 30 years to life for Count 1 and a term of 16 years for Count 2; and (3) delete the Penal Code section 667, subdivision (e)(1), "enhancements" of 15 years to life and 8 years, respectively. A certified copy of the corrected abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation.
/s/_________
HOCH, J. We concur: /s/_________
MAURO, Acting P. J. /s/_________
MURRAY, J.