Opinion
G056623
02-26-2020
THE PEOPLE, Plaintiff and Respondent, v. DUSTIN LEE MORGAN, Defendant and Appellant.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Stephanie C. Brenan and Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15CF0503) OPINION Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed. Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Stephanie C. Brenan and Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Dustin Lee Morgan of committing a lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (a); count 1) and oral copulation or sexual penetration of a child 10 years old or younger (§ 288.7, subd. (b); count 2). Defendant was sentenced to state prison for a term of 15 years to life on count 2, and the sentence on count 1 was stayed under section 654. The court imposed a $200 restitution fine (§ 1202.4, subd. (b)(1)) and imposed on each count a $40 court operations fee (§ 1465.8, subd. (a)(1)) and a $30 criminal conviction fee (Gov. Code, § 70373, subd. (a)(1)).
All statutory references are to the Penal Code unless otherwise stated.
The jury found not true an allegation that defendant committed count 1 during a burglary. (§ 667.61, subds. (a), (d)(4).)
Defendant raises two contentions on appeal. First, he contends the court abused its discretion by admitting evidence of uncharged sexual misconduct under Evidence Code sections 1108 and 352. Second, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, defendant asserts his right to due process under the United States and California Constitutions was violated because the court imposed the fees and restitution fine without conducting a hearing on his ability to pay them. We reject both contentions and affirm the judgment.
FACTS
PROSECUTION CASE
Charged Offenses
In the early morning hours of February 8, 2008, a man broke into the bedroom of eight-year-old Jane Doe, entering through a sliding glass door that led into the bedroom from an exterior balcony. Jane awoke to find one of her bedroom lamps on. She looked over toward her brothers, who were asleep in their nearby bunk beds. Jane felt a weight on top of her. She looked up and saw a man in a gray hoodie over her. He put his hand over her mouth and indicated to her to be quiet by placing his index finger over his mouth.
In the terrifying minutes that followed, the man digitally penetrated Jane's vagina with one hand while keeping his other hand over her mouth. She heard him unzip his pants before she felt a "big widened pain" inside her vagina as he inserted the tip of his penis. Jane tried to scream but only a squeak came out. The man pulled his penis out and the pain stopped. He put both of his hands over her mouth.
Jane had direct eye contact with the man for a minute or two before he put a pillow over her face. She felt like she was suffocating. She heard him zip up his pants and his weight lifted off her body. Once she felt he was gone, she sat up and took the pillow off her face. She could hear him running outside her apartment through the open patio door. She remained sitting on her bed for a few minutes because she was too scared to move.
Jane then walked down the hall to her mother's bedroom, woke her, and told her mother that there was someone in her room. When her mother responded that it was just a bad dream, Jane told her that the sliding door was open. Jane's mother investigated and found the sliding door was in fact open. She put the children in her bedroom and called the police.
Shortly after the incident, a forensic specialist arrived at Jane's apartment and collected evidence. The exterior door handle of the sliding glass door that led from the balcony into Jane's room was swabbed for DNA. Jane's clothing was also collected and later swabbed for DNA evidence. There were handprints on the balcony railing outside Jane's bedroom, and shoe prints in the dirt directly below the balcony.
Jane was taken to the Child Abuse Services Team (CAST), where she was interviewed by a specialist in child sex abuse cases and underwent a sexual assault examination. The nurse who conducted the sexual assault exam obtained oral and genital swabs from Jane.
The swab from the exterior door handle was processed and a male DNA profile was identified. This DNA profile was then submitted for comparison in state and national databases. In March 2013, the Orange County crime lab received a letter from the Department of Justice stating that the profile from the door handle matched defendant.
In 2013, Jane was shown a six-pack photographic lineup containing defendant's picture, but she did not identify him as her attacker. At trial in 2018, she stated defendant's eyes, ears, part of his nose, and hair match what she remembers of her attacker but she does not have a memory of his full face.
When defendant was contacted in, Texas in March 2015, by Santa Ana police detectives regarding the DNA match, he denied ever being in Santa Ana. Defendant's girlfriend, however, recalled they had been in Santa Ana working for Sierra Solutions in February 2008.
In 2015, the crime lab received defendant's buccal swab and identified his DNA profile. Defendant could not be excluded as the major contributor to the DNA on the exterior door handle. The prosecution's DNA expert explained that the "probability of choosing an individual at random who would not be excluded as the major contributor to the exterior sliding glass door handle is more rare than one in two sextillion unrelated individuals." Y chromosome testing was conducted on other items of evidence and indicated defendant's profile matched the major contributor for the Y chromosome found in the sample from the front interior of Jane's underwear and his Y chromosome was consistent with that found in the sample taken from Jane's vulva.
Uncharged Sexual Misconduct
In August 2013, defendant visited his girlfriend's aunt, Sherry, while she was in a Texas hospital receiving treatment. Sherry was about 10 years older than defendant and had known him for several years. After defendant and Sherry talked for a while, defendant fell asleep in a chair in the corner of her hospital room. Sherry fell asleep also, sleeping on her side with her back to defendant. She was awakened by the feeling that she was being pushed off her bed. Defendant, sitting in the chair, was using his feet to rub Sherry from her mid-back down her buttocks and legs while he masturbated his exposed erect penis.
Sherry called out defendant's name and asked if he was awake. Defendant looked at her, leaned forward, smiled, and asked if she was awake. Sherry fled her hospital room. Unable to find anyone at the nurse's station because it was 3:30 in the morning, Sherry took the elevator downstairs and ended up outside in the ambulance bay. A few minutes later, defendant walked up to her, apologized, and then left.
Sherry told her niece what had happened and reported it to the police. When defendant's girlfriend confronted him, defendant denied touching Sherry but admitted to masturbating in the corner of her hospital room and repeatedly apologized for his conduct. He believed Sherry was sound asleep and would not wake up because he had seen the doctor give her medicine that night. DEFENSE CASE
Defendant testified in his own defense and denied committing either the charged offenses or the uncharged sexual misconduct. He admitted being in Orange County at the beginning of 2008 and touching the exterior handle of the sliding door on Jane's balcony but explained it was during the day when he came upon the apartment with the intention of burglarizing it. He denied entering the apartment or touching Jane.
As to the incident in Sherry's hospital room, defendant explained he visited Sherry after his girlfriend broke up with him a few days prior. He and Sherry sat on her hospital bed and talked for several hours. When he started to leave, she told him that he could sleep in her hospital room and she offered to give him a foot massage. Defendant thought she was sending him signals and that their relationship was becoming more intimate. While Sherry massaged his foot, defendant rubbed himself "in a sexual way" over the top of his jeans. When he realized he misjudged the situation, he apologized.
DISCUSSION
On appeal, defendant presents one evidentiary claim and one sentencing issue. He contends the court abused its discretion by admitting Sherry's testimony under Evidence Code sections 1108 and 352 because the evidence of his uncharged sexual misconduct had "minimal" probative value and was "inherently prejudicial." We find no abuse of discretion. In his sentencing claim, defendant asserts his constitutional right to due process was violated because the court imposed a state restitution fine and statutorily mandated fee assessments without conducting a hearing on his ability to pay them. We reject this claim and affirm the judgment. EVIDENCE OF DEFENDANT'S UNCHARGED SEXUAL MISCONDUCT WAS PROPERLY ADMITTED
Before trial, both parties filed motions concerning the admissibility of evidence of defendant's sexual misconduct in Sherry's hospital room, with the prosecution seeking to admit the evidence under Evidence Code sections 1108 and 1101, subdivision (b), and the defense seeking to exclude the evidence. The court gave the issue "careful consideration" during a pretrial hearing. After conducting an analysis under Evidence Code section 352, weighing the probative value of the evidence against its potential for prejudice, the court ruled the evidence was admissible under Evidence Code section 1108.
The court indicated the evidence was not admissible under Evidence Code section 1101, subdivision (b).
Defendant contends the court abused its discretion by admitting the sexual misconduct evidence under Evidence Code sections 1108 and 352. He asserts the evidence should have been excluded because the incident in Sherry's hospital room was "entirely dissimilar" to that in the charged offense and therefore lacked probative value. He further asserts Sherry's testimony was "inherently prejudicial," and he urges us to reverse both of his convictions. We conclude the court did not abuse its discretion and affirm.
Applicable Law
"Evidence Code section 1101, subdivision (a) sets forth the '"strongly entrenched"' rule that propensity evidence is not admissible to prove a defendant's conduct on a specific occasion." (People v. Jackson (2016) 1 Cal.5th 269, 299.) But when a defendant is charged with a sexual offense, Evidence Code section 1108 "carves out an exception" to section 1101's prohibition against propensity evidence. (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 823.) Evidence Code section 1108, subdivision (a) states that when a criminal "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." (Ibid.) When evidence of an uncharged sexual offense is proffered under Evidence Code section 1108, the court must "'undertake[] a careful and specialized inquiry [under Evidence Code section 352] to determine whether the danger of undue prejudice from the propensity evidence substantially outweighs its probative value.'" (People v. Erskine (2019) 7 Cal.5th 279, 296.)
Under Evidence Code section 352, a court has "the discretion to '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.'" (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1116 (Nguyen).) In Nguyen, we identified "five factors [that] stand out as particularly significant" when a court is considering the admissibility of evidence under Evidence Code sections 1108 and 352: "(1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show the defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant's charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time." (Nguyen, at p. 1117.) "A trial court balances this first factor, i.e., the propensity evidence's probative value, against the evidence's prejudicial and time-consuming effects, as measured by the second through fifth factors." (Ibid.)
A trial court's ruling on the admissibility of evidence under Evidence Code sections 1108 and 352 "is reviewed for abuse of discretion and will '"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."'" (Nguyen, supra, 184 Cal.App.4th at p. 1116; accord, People v. Story (2009) 45 Cal.4th 1282, 1295.)
The Court Did Not Abuse Its Discretion
Defendant contends the court abused its discretion by admitting Sherry's testimony on his uncharged sexual misconduct in her hospital room. He asserts her "testimony was not probative of a propensity under [Evidence Code] section 1108 because she described behavior that was entirely dissimilar to the incidents in this case" and therefore should have been excluded. In support of this assertion, defendant cites to facts that differentiate the uncharged and charged sex offenses. He notes the uncharged sexual misconduct involved an adult, whom he knew well; the incident occurred after he was invited into her hospital room and consisted of him rubbing her back and legs with his feet while he masturbated his exposed erect penis. He contrasts that with the charged offenses, which involved a minor, who was a stranger to him; the incident occurred after he broke into her residence and involved him penetrating her vagina with his fingers and penis. He asserts given these differences, the uncharged sexual misconduct evidence should have been excluded because it "simply had no 'tendency in reason to show that [he] is predisposed to engage in conduct of the type charged.'" We disagree.
The evidence of defendant's uncharged sexual misconduct was sufficiently similar to the charged offenses to be highly probative as to the issue of whether defendant committed the charged offenses. Defendant denied entering Jane's apartment and sexually assaulting her when she was asleep in her bed. The uncharged misconduct evidence demonstrated defendant has a propensity for sexually gratifying himself by touching sleeping females. The age of the female and her relationship to defendant is inconsequential to him. In both the charged and uncharged offenses, defendant touched and became sexually aroused by a sleeping female, who was unaware and uninviting of his sexual interest. Under Evidence Code section 1108, "evidence of a 'prior sexual offense is indisputably relevant in a prosecution for another sexual offense.' [Citation.] Indeed, the reason for excluding evidence of prior sexual offenses in such cases is not because that evidence lacks probative value; rather, it is because '"it has too much."'" (People v. Branch (2001) 91 Cal.App.4th 274, 282-283 (Branch).)
As discussed above, a court must balance the propensity evidence's probative value against four factors covering "the evidence's prejudicial and time-consuming effects." (Nguyen, supra, 184 Cal.App.4th at p. 1117.) Defendant addresses only two of those factors in his appeal. Here, he asserts the propensity evidence was "relatively remote, having occurred over five years after the charged offense." We note that in the trial court, defendant indicated he was "not challenging [the remoteness of the propensity evidence] as there was not a significant amount of time between the current [offenses] and the [uncharged misconduct] allegation." This concession was well advised. "No specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible." (Branch, supra, 91 Cal.App.4th at p. 284 [upholding admission of sex offense committed 30 years prior to the charged crime].) Indeed, "[n]umerous cases have upheld admission pursuant to Evidence Code section 1108 of prior sexual crimes that occurred decades before the current offenses." (People v. Robertson (2012) 208 Cal.App.4th 965, 992 [upholding admission of a 34-year-old prior sexual assault conviction]; see People v. Pierce (2002) 104 Cal.App.4th 893, 900 [evidence of a sex offense committed 23 years prior to the charged crime was properly admitted].) Thus, the five years between the charged offenses and defendant's uncharged misconduct did not render the propensity evidence impermissibly remote.
Defendant also asserts the uncharged misconduct evidence was prejudicial because there was no evidence it resulted in a conviction, creating a "risk the jury would be motivated to punish [him] for the uncharged conduct . . . ." Again we note defendant presented a different tactic in the trial court. Defendant testified in his defense that he was never prosecuted for the incident in Sherry's hospital room, creating the very risk he complains about now. Nevertheless, in our review of the record, we find no evidence the jury sought to punish defendant for his sexual misconduct involving Sherry rather than focus on his guilt or innocence on the current charges involving Jane. The jury's questions during deliberations all focused on the charged offenses, not Sherry's testimony. (See Branch, supra, 91 Cal.App.4th at p. 284 [jurors' focus on the charged offenses in questions during deliberations rebuts theory that "the jury may have wanted to punish [the defendant] for committing the prior uncharged offenses, rather than assessing his guilt or innocence of the charged offenses"].) Also, as the Attorney General points out, the jury's rejection of the allegation that defendant committed the lewd act during a burglary (§ 667.61, subds. (a), (d)(4)), suggests the jury focused on determining his guilt or innocence of the charged offenses and allegations and was not motivated to punish him for his uncharged misconduct. Moreover, any potential danger of misuse of the propensity evidence by the jury was neutralized by the court's instruction with CALCRIM No. 1191A on how to consider this evidence in determining whether defendant was guilty of the charged offenses.
Although not addressed by defendant, we conclude the two other factors in the balancing equation do not weigh for exclusion of the propensity evidence as prejudicial or time-consuming. The propensity evidence was not more inflammatory than the charged offenses and did not require an undue consumption of time. Sherry's testimony comprises 27 pages of reporter's transcript, and defendant's testimony addressing this sexual misconduct evidence is only 10 pages of reporter's transcript.
In sum, we conclude the court did not abuse its discretion by admitting the uncharged sexual misconduct evidence under Evidence Code sections 1108 and 352. ANY FAILURE TO DETERMINE DEFENDANT'S ABILITY TO PAY WAS HARMLESS ERROR
At sentencing, the court ordered defendant to pay a $200 restitution fine, which was the statutory minimum at the time of his offense in 2008. (Former § 1202.4, subd. (b)(1); Stats. 2008, ch. 468, § 1.) Defendant was also ordered to pay a $40 court operations fee (§ 1465.8, subd. (a)(1)) and a $30 criminal conviction fee (Gov. Code, § 70373, subd. (a)(1)) on each count (hereinafter fees).
The court further ordered defendant to pay a $300 fine under section 290.3 and direct victim restitution in the amount of $7,476; defendant does not challenge either of these orders on appeal.
Below, defendant did not object to the imposition of these fees or the restitution fine, but on appeal, he contends the court erred by imposing them without conducting a hearing on his ability to pay them. Defendant asserts he is indigent, and therefore, the imposition of these fees and fine without such a hearing violates his right to due process. He relies on People v. Dueñas, supra, 30 Cal.App.5th 1157 to support his contention and requests we reverse the fees and stay the restitution fine pending a hearing and determination of his ability to pay.
The Attorney General presents several arguments in response, arguing, among other things, that: (1) defendant forfeited his appellate claim by failing to object or assert an inability to pay the fine and fees below; (2) defendant's contention challenging the restitution fine should be reviewed under the Eighth Amendment's excessive fines clause rather than the due process clause of the Fourteenth Amendment and his claim fails under this rubric because the "$200 restitution fine was not grossly disproportionate" to his offense; and (3) any due process violation is harmless beyond a reasonable doubt because the record shows defendant has the capacity to work and earn prison wages to pay the fine and fees. We find this last argument compelling.
Assuming, without deciding, that the court violated defendant's right to due process by imposing the fees and restitution fine without conducting an ability to pay hearing, the error was harmless beyond a reasonable doubt. The restitution fine and fees at issue here total $340. Just prior to his sentencing hearing, defendant completed a statement of assets, indicating that he had none. But defendant "will have the ability to earn prison wages over a sustained period" (People v. Johnson (2019) 35 Cal.App.5th 134, 139 (Johnson)) as he was sentenced to prison for life with parole eligibility after 15 years.
The issues of whether a court must consider a defendant's ability to pay before imposing fees, fines, and assessments and who has the burden of proof regarding a defendant's inability to pay are currently pending before the California Supreme Court in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844.
In Johnson, supra, 35 Cal.App.5th at page 139, the appellate court indicated that even if it was to assume the defendant suffered a due process violation when the trial court imposed $370 in fees and a fine "without taking his ability to pay into account," the error was harmless beyond a reasonable doubt because the defendant had "ample time to pay it from a readily available source of income while incarcerated." (Id. at p. 140; see People v. Aviles (2019) 39 Cal.App.5th 1055, 1076 [court inferring the defendant has the ability to pay fines and fees from his probable future prison wages, which range between $12 to $56 per month].) The Johnson court explained, "The idea that [the defendant] cannot afford to pay $370 while serving an eight-year prison sentence is unsustainable." (Johnson, at p. 139.) Here, defendant was ordered to pay a slightly lower total over the span of a lengthier sentence. The idea that he cannot pay this amount is all the more unstainable. Any error by the court in imposing these fees and fine without conducting a hearing on defendant's ability to pay was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
DISPOSITION
The judgment is affirmed.
IKOLA, J. WE CONCUR: O'LEARY, P. J. GOETHALS, J.