Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Dan McNerney, Judge. Super. Ct. No. 06ZF0134
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
The trial court sentenced defendant Nicholas William Lawlor to a 6-year, 8-month prison term after a jury found him guilty of one count of committing a lewd act on a child with a true finding that the offense involved substantial sexual conduct (Pen. Code, §§ 288, subd. (a) & 1203.066, subd. (a)(8); all further statutory references are to the Penal Code unless otherwise indicated) and three counts of committing lewd acts on a 14- or 15-year-old-child at least 10 years younger than him (§ 288, subd. (c)(1).) Defendant claims his conviction on the latter three counts are time barred. He also argues the trial court erred by admitting evidence of uncharged sexual acts and instructing the jury on the use of this evidence, plus quashing his pretrial subpoena for one victim’s medical records. Finding no error, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Between January and September 2001, defendant, then 27 years old, and G.L., then 14 years old, became physically intimate with each other. They engaged in sexual intercourse, oral copulation, and digital penetration on numerous occasions. In the fall of that year, G.L. and her family moved out of the area.
In August 2005, then 13-year-old B.B. stayed overnight at her older sister’s apartment. The next morning, defendant, a family friend, came to visit. Defendant remained after B.B.’s sister left for work.
While the two were watching television, defendant began telling B.B., “You’re so hot.” He then started to rub her chest and stomach. B.B. became uncomfortable and frightened and scooted away from defendant. He scooted over as well and began removing both his and her clothing. B.B. stood up, but defendant then pulled her down onto him, placing his penis in her vagina. She pushed defendant away and ran into the bathroom, shutting the door. After five minutes, she emerged from the bathroom. Defendant was leaning against the couch with his pants still down. B.B. insisted that defendant leave the apartment and eventually he pulled up his pants and departed.
A week later B.B. told a friend about the incident and the friend, in turn, reported it to an adult who contacted law enforcement. With the assistance of law enforcement, B.B. and her mother recorded several telephone calls with defendant. While he never admitted having sex with B.B., defendant apologized to her and offered to help pay for an abortion or take a paternity test.
Shortly after the assault occurred, B.B.’s gynecologist examined her. The gynecologist reported no genital injuries. A physician testified that, given B.B.’s age, the likelihood of only a partial penetration, and length of time between the act and examination, the findings were consistent with the minor’s medical history.
B.B.’s mother later contacted G.L.’s mother and reported what had happened. G.L. then admitted the nature of her relationship with defendant.
In August 2006, the grand jury issued an indictment charging defendant with one count of violating section 288, subdivision (a) concerning B.B. (count 1), with an allegation of substantial sexual conduct under section 1203.066, subdivision (a)(8), plus eight counts of violating section 288, subdivision (c)(1) concerning G.L (counts 2 through 9). Each of the latter charges covered a one-month period between January and August 2001. After trial, the jury returned a guilty verdict on count 1, finding the substantial sexual conduct allegation true. It also returned guilty verdicts on counts 2, 3, and 9, but was unable to reach verdicts on the remaining counts.
DISCUSSION
1. Statute of Limitations
The court instructed the jury that “defendant may not be convicted of counts 1 through 9 . . . unless the prosecution began within 10 years of the date the crimes were committed,” and that “[t]he People have the burden of proving by a preponderance of the evidence that the prosecution began within the required time.”
Defendant contends this instruction was based on section 801.1, which did not become effective until January 1, 2005, after the previous three-year statute of limitations for the charges contained in counts 2 through 9 had expired. Based on this premise, he argues that, not only was it error to give this instruction, his convictions on counts 2, 3, and 9 are time barred as a matter of law, and the case must be remanded for a new sentencing hearing. The Attorney General disputes defendant’s analysis and claims that, in any event, his prosecution on the 2001 crimes was timely under the tolling provisions of section 803, subdivision (f).
While “the ex post facto clause ‘does not prevent the State from extending time limits for the prosecution of future offenses, or for prosecutions not yet time barred[]’ [citation]” (People v. Vasquez (2004) 118 Cal.App.4th 501, 504), it does prohibit the Legislature from enacting an extension of the statute of limitations to revive an already expired limitations period on a criminal offense. (Stogner v. California (2003) 539 U.S. 607, 610 [123 S.Ct. 2446, 156 L.Ed.2d 544].) We conclude the premise of defendant’s argument, that the 10-year statute of limitations was not originally enacted until after the prior limitations period section 288 violations had expired, is erroneous. As a consequence, his argument lacks merit.
A violation of section 288, subdivision (c)(1) is punishable by a state prison sentence of “one, two, or three years . . . .” Before January 1, 2001, section 801 declared a “prosecution for an offense punishable by imprisonment in the state prison shall be commenced within three years after commission of the offense.”
In 2000, the Legislature amended former section 803, subdivision (h)(1), effective as of January 1, 2001, to declare “the limitations period for commencing prosecution for a felony offense described in subparagraph (A) of paragraph (2) of subdivision (a) of [former] Section 290, where the limitations period . . . has not expired as of January 1, 2001, or the offense is committed on or after January 1, 2001, shall be 10 years from the commission of the offense . . . .” (Stats. 2000, ch. 235, § 1, p. 5.) At that time, section 290, subdivision (a)(2)(A) provided “[t]he following persons shall be required to register . . .; [¶] . . . [a]ny person who . . . has been . . . convicted . . . of Section . . . 288 . . . .” (Stats. 2000, ch. 649, § 2, p. 3.) Effective January 1, 2005, the Legislature amended section 803 to eliminate the portion of former subdivision (h)(1) quoted above and reenacted it as part of section 801.1. (Stats. 2004, ch. 368, §§ 1 & 2, pp. 1, 3.) In 2007, section 290 was amended and the list of crimes requiring registration under it was inserted in subdivision (c), and section 801.1 was amended to acknowledge this change. (Stats. 2007, ch. 579, §§ 8 & 40, pp. 47, 76.)
The effect of these statutory changes was discussed under analogous circumstances in In re White (2008) 163 Cal.App.4th 1576. There the defendant filed a petition for writ of habeas corpus contending his trial attorney rendered ineffective assistance of counsel by failing to raise a statute of limitations defense to his 2005 prosecution for several sexual assault crimes, including forcible rape and oral copulation, alleged to have occurred in 1996. When defendant committed the crimes section 800 declared the applicable statute of limitations was six years. (Id. at pp. 1579-1580.)
The Court of Appeal denied the petition. After discussing the statutory amendments summarized above, the court stated: “The rule is settled that reenactment by a new statute of an existing statute in substantially the same terms repeals by implication only those provisions of the existing statute omitted by reenactment. . . . If a new statute repeals an existing statute and ‘they both legislate upon the same subject, and in many cases the provisions of the two statutes are similar, and almost identical,’ and ‘there never has been a moment of time since the passage of the [existing statute] when these similar provisions have not been in force,’ ‘the new act should be construed as a continuation of the old with the modification contained in the new act.’ [Citation.]” (In re White, supra, 163 Cal.App.4th at pp. 1581-1582.)
White thus concluded, “The 10-year statute of limitations applicable to the crimes of which [the defendant] was convicted was continuously in effect since January 1, 2001. . . . His prosecution was never time-barred, so constitutional ex post facto clause protection against prosecution with a statute of limitations enacted after a previous statute of limitations period expired is inapplicable. [Citations.] Here, the Legislature did not revive an expired statute of limitations period but simply extended one before expiration. That is constitutionally permissible. [Citations.]” (In re White, supra, 163 Cal.App.4th at p. 1583.)
A similar analysis applies here. When defendant committed the acts supporting his convictions on counts 2, 3, and 9, the 10-year statute of limitations was in effect, found in former section 803, subdivision (h)(1). In 2005, the Legislature moved this limitations period from former section 803 to section 801.1. As in White, “His prosecution was never time-barred” (In re White, supra, 163 Cal.App.4th at p. 1583), and consequently, a violation of the ex post facto clause never occurred. We conclude defendant’s statute of limitations claim lacks merit.
2. Propensity Evidence and Instruction
a. Background
Evidence Code section 1108 declares that, “[i]n a criminal action in which the defendant is accused of a sexual offense,” which includes “conduct proscribed by Section . . . 288,” “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.” (Evid. Code, § 1108, subds. (a) & (d)(1)(A).)
At trial the prosecution presented testimony that defendant committed uncharged sexual acts with G.L., including one that occurred on a camping trip outside Orange County and a second after she had moved out of the area.
The court gave CALCRIM No. 1191, which instructed as follows: “The People presented evidence that the defendant committed the crimes of lewd act upon a child of 14 or 15 years old that were not charged in this case. . . . [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offenses. . . . [¶] If you decide the defendant committed the uncharged offenses, you may, but are not required to, conclude from the evidence the defendant was disposed or inclined to commit sexual offenses. And based on that decision also conclude the defendant was likely to commit and did commit counts 1 through 9, as charged here. [¶] If you conclude the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It’s not sufficient by itself to prove the defendant is guilty of counts 1 through 9. The People must still prove each element of every charge beyond a reasonable doubt. Do not consider this evidence for any other purpose.”
b. Analysis
Defendant raises several claims concerning Evidence Code section 1108, the court’s instruction on it, and the admissibility of the uncharged conduct evidence. All of his arguments lack merit.
First, defendant argues use of the uncharged conduct to convict him violated his right to due process of law because it allowed “the jury [to] infer [he] had a propensity to commit criminal offenses,” and the “notion of not convicting a defendant based on propensity evidence is deeply rooted in the common law tradition of this country.” But, as he acknowledges, in People v. Falsetta (1999) 21 Cal.4th 903, the California Supreme Court rejected this very contention. (Id. at pp. 910-922.) Under the doctrine of stare decisis, we must follow Falsetta. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; People v. Manning (2008) 165 Cal.App.4th 870, 877 [applying doctrine to constitutional challenge of Evidence Code section 1108].)
Defendant also argues the trial court violated his right to due process of law by giving CALCRIM No. 1191 because it “allowed the jury to find that the prior acts . . . were committed using a preponderance of the evidence standard and then infer guilt of the charged offense from the commission of the prior acts.” In People v. Reliford (2003) 29 Cal.4th 1007, the Supreme Court rejected a constitutional challenge to an older parallel instruction, CALJIC No. 2.50.01.
There the court expressly noted, the “[d]efendant complains that, having found the uncharged sex offense true by a preponderance of the evidence, jurors would rely on ‘this alone’ to convict him of the charged offenses. The problem with [this] argument is that the instruction nowhere tells the jury it may rest a conviction solely on evidence of prior offenses. Indeed, the instruction’s next sentence says quite the opposite: ‘if you find by a preponderance of the evidence that the defendant committed a prior sexual offense . . ., that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime.’ The jury, of course, was instructed to consider the instructions ‘as a whole’ [citation], just as we must view a challenged portion ‘in the context of the instructions as a whole and the trial record’ to determine ‘“whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’ [Citations.] Viewed in this way, the instructions could not have been interpreted to authorize a guilty verdict based solely on proof of uncharged conduct. [Citation.]” (People v. Reliford, supra, 29 Cal.4th at p. 1013.)
Recent cases have concluded Reliford’s holding applies to CALCRIM No. 1191 as well. “As to defendant’s challenge to the instruction, it is based on his assertion that the instruction on the use of prior sex offenses ‘wholly swallowed the “beyond reasonable doubt” requirement.’ The California Supreme Court has rejected this argument in upholding the constitutionality of the 1999 version of CALJIC No. 2.50.01. [Citation.] The version of CALJIC No. 2.50.01 considered in Reliford is similar in all material respects to CALCRIM No. 1191 (which was given here) in its explanation of the law on permissive inferences and the burden of proof. We are in no position to reconsider the Supreme Court’s holding in Reliford [citation], and by analogy to Reliford we reject defendant’s argument regarding the jury instruction on use of his prior sex offenses.” (People v. Schnabel (2007) 150 Cal.App.4th 83, 87, fn. omitted; see also People v. Cromp (2007) 153 Cal.App.4th 476, 480.) We reach the same conclusion here.
Next, defendant contends section 1108 violates equal protection because it subjected him to disparate treatment by sanctioning the admission of evidence traditionally excluded as unreliable and prejudicial. People v. Fitch (1997) 55 Cal.App.4th 172 rejected an equal protection attack on section 1108. First, it concluded “the statute [did not] infringe[] upon . . . constitutional rights,” and therefore was “subject to a rational-basis analysis. [Citation.]” (Id. at p. 184.) It then held “section 1108 withstands this relaxed scrutiny. The Legislature determined that the nature of sex offenses, both their seriousness and their secretive commission which results in trials that are primarily credibility contests, justified the admission of relevant evidence of a defendant’s commission of other sex offenses. This reasoning provides a rational basis for the law. . . . In order to adopt a constitutionally sound statute, the Legislature need not extend it to all cases to which it might apply. The Legislature is free to address a problem one step at a time or even to apply the remedy to one area and neglect others. [Citation.]” (Id. at pp. 184-185.)
In People v. Falsetta, supra, 21 Cal.4th 903, the Supreme Court cited Fitch’s equal protection discussion with approval. (Id. at p. 918.) We also agree Fitch’s analysis is persuasive and follow it.
Finally, defendant contends that under “[t]he unique facts of this case,” “[i]t does not flow from reason and common sense that it is more likely than not that an individual who engaged in a consensual relationship with a 14 or 15 year old girl would attempt to force himself upon another 14 or 15 year old girl.” Initially, we note defendant fails to cite to anything in the record supporting a finding he timely objected to the introduction of the other uncharged sexual offenses with G.L. on the ground this evidence was not sufficiently similar to his act with B.B. to support its admission. (Evid. Code, § 353, subd. (a) [absent timely objection or motion to strike, “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”].) This rule applies in cases under Evidence Code section 1108. (People v. Pierce (2002) 104 Cal.App.4th 893, 898.)
But even on the merits defendant’s argument fails. “This court reviews the admissibility of evidence of prior sex offenses under an abuse of discretion standard. [Citation.] A trial court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ [Citation.]” (People v. Wesson (2006) 138 Cal.App.4th 959, 969.)
Several cases have rejected a requirement of a close similarity between the charged crimes and prior sexual offenses to support admissibility of the latter evidence under Evidence Code section 1108. (People v. Cromp, supra, 153 Cal.App.4th at p. 480 [no error in admitting the defendant’s prior rape of developmentally disabled woman in prosecution for molesting two young boys; “The fact that defendant committed a sexual offense on a particularly vulnerable victim in the past logically tends to prove he did so again with respect to the current offenses”]; People v. Mullens (2004) 119 Cal.App.4th 648, 659-660 [french-kissing one girl and the touching of another’s thigh admissible in prosecution for committing lewd acts with the defendant’s stepdaughter; prior acts “probative on the issue of whether [he] had a propensity for engaging in lewd acts with children” and “[a]ny dissimilarities” in the alleged incidents “went to the weight, not the admissibility,” of the evidence].)
As explained in People v. Frazier (2001) 89 Cal.App.4th 30, “The charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108.” (Id. at pp. 40-41, fn. omitted; see also People v. Soto (1998) 64 Cal.App.4th 966, 984 [quoting statute’s historical note; “Section 1108 does not require ‘“more exacting requirements of similarity between the charged offense and the defendant’s other offenses”’ because ‘“doing so would tend to reintroduce the excessive requirements of specific similarity under prior law which [section 1108] is designed to overcome . . . . Many sex offenders are not ‘specialists’, and commit a variety of offenses which differ in specific character”’”].) Here, the same principles apply. The evidence of defendant’s uncharged conduct with G.L. was admissible to establish the charged acts against both B.B. and G.L. because it showed he has a propensity to commit lewd acts with adolescent girls.
3. Discovery of Victim’s Medical Records
Before trial defendant issued a subpoena duces tecum seeking information from B.B.’s health care providers that had treated her with respect to sexual activity, identifying birth control medications prescribed to her, the name and contact information of persons with whom she had engaged sexual relations, and the date on which she engaged in sexual activity that resulted in vaginal penetration. The prosecution filed a motion to quash the subpoena, which the trial court granted. It described the subpoena as “a fishing expedition,” “not . . . designed to lead to relevant evidence,” and “in violation of the privacy rights of” B.B.
Defendant now contends this ruling violated his rights under the Sixth Amendment’s confrontation and compulsory process clauses. As he concedes, California authority is contrary to his position.
“[A]lthough a witness’s credibility is always in issue, this does not mean the defense is entitled to rummage through the medical records of every witness in a criminal prosecution looking for evidence to impeach the witness’s credibility. [Citation.]” (Susan S. v. Israels (1997) 55 Cal.App.4th 1290, 1297.) In People v. Hammon (1997) 15 Cal.4th 1117, the California Supreme Court held “the trial court was not required, at the pretrial stage of the proceedings, to review or grant discovery of privileged information in the hands of third party psychotherapy providers. We reject defendant’s claim that pretrial access to such information was necessary to vindicate his federal constitutional right to confront and cross-examine the complaining witness at trial or to receive a fair trial.” (Id. at p. 1119.)
Thus, Hammon concluded, “When a defendant proposes to impeach a critical prosecution witness with questions that call for privileged information, the trial court may be called upon . . . to balance the defendant’s need for cross-examination and the state policies the privilege is intended to serve. [Citation.] Before trial, the court typically will not have sufficient information to conduct this inquiry; hence, if pretrial disclosure is permitted, a serious risk arises that privileged material will be disclosed unnecessarily.” (Id. at p. 1127.) In reaching this result, the court disapproved of a line of contrary authority, including People v. Reber (1986) 177 Cal.App.3d 523, a case on which defendant relies. (People v. Hammon, supra, 15 Cal.4th at p. 1123.) As explained above, we are obligated to follow Hammon. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
Contrary to defendant’s suggestion United States Supreme Court decisions do not support his argument. Davis v. Alaska (1974) 415 U.S. 308 [94 S.Ct. 1105, 39 L.Ed.2d 347] concerned a ruling at trial barring defense cross-examination of a minor about his confidential juvenile offender record to show the existence of possible bias.
In Pennsylvania v. Ritchie (1987) 480 U.S. 39 [107 S.Ct. 989, 94 L.Ed.2d 40], the defendant was charged with committing sexual acts on his daughter. The child’s allegations had been investigated by the state’s child protective services agency. Before trial, the defendant served the agency with a subpoena requesting the records of its investigation. The trial court rejected the request, but the state supreme court reversed the defendant’s conviction in part, finding the trial court order violated the defendant’s confrontation rights under the Sixth Amendment. The United States Supreme Court remanded the matter for an in camera review of the records to determine whether, under the Fourteenth Amendment’s due process clause and Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215], they contained evidence material to the issues of guilt or punishment that was favorable to the defendant. (Pennsylvania v. Ritchie, supra, 480 U.S. at pp. 56-57, 59, 61.)
In so ruling the Court considered but declined to decide whether the Sixth Amendment’s confrontation or compulsory process clauses authorized pretrial disclosure of the child protective service’s records. (Pennsylvania v. Ritchie, supra, 480 U.S. at p. 56.) However, the lead opinion, expressing the views of four members of the court, declared “[t]he opinions of this Court show that the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination. [Citations.]” (Id. at p. 52.)
Thus, defendant has not shown the trial court erred by quashing his pretrial subpoena duces tecum. But even assuming that ruling was erroneous, the record reflects it was harmless. The charge against defendant was committing a lewd act on B.B., not rape. While the examination by B.B.’s gynecologist reflected no genital injury, the prosecution’s expert explained how an adolescent female might erroneously conclude defendant’s penis had entered her vagina. In addition, rather than deny anything had occurred, defendant made statements in the telephone conversations with B.B. and her mother implicitly acknowledging he had molested B.B. We conclude defendant is not entitled to a limited remand for an in camera review of the records sought by him by his pretrial subpoena.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, J., IKOLA, J.