Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 210367.
BAMATTRE-MANOUKIAN, J.
Defendant Daniel Garcia Ornelas was convicted after jury trial of three counts of lewd conduct on a child under 14 (Pen. Code, § 288, subd. (a)), and the jury found true the allegation that defendant had a prior serious felony conviction for violating section 288, subdivision (a). (§ 667, subd. (a).) The trial court found true the allegation that the prior constituted a strike. (§ 1170.12.) The court sentenced defendant to 25 years in state prison, and imposed a $200 fine and penalty assessments pursuant to section 290.3 and a $20 court security fee.
Further unspecified statutory references are to the Penal Code.
On appeal, defendant contends that (1) he was denied due process and a fair trial when the court erroneously admitted evidence of uncharged offenses under Evidence Code section 1108; (2) trial counsel rendered ineffective assistance by failing to seek to impeach a prosecution witness with his conviction of a crime involving moral turpitude; (3) he was denied due process, a fair trial, and his rights to confrontation and cross-examination when the court erroneously admitted into evidence his statements contained in a prior probation report; (4) the court committed prejudicial error by instructing the jury with Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 1191; (5) the ordered penalty assessments must be reduced because they violate ex post facto provisions; and (6) the $20 court security fee must be stricken because it violates ex post facto provisions. The Attorney General concedes that the penalty assessments must be reduced, and we agree with that concession. Accordingly, we will order the abstract of judgment modified to reduce the penalty assessments from $470 to $340. As we find no other reversible error, we will affirm the judgment as so modified.
BACKGROUND
Defendant was charged by information filed December 28, 1998, with three counts of lewd conduct on a child under 14 (§ 288, subd. (a)). Nicole was the alleged victim of counts 1 and 2, and Lorie was the alleged victim of count 3. Counts 1 and 3 were alleged to have occurred between August 1, 1995 and July 31, 1997, and count 2 was alleged to have occurred on or about March 7, 1998. The information further alleged that defendant had a prior lewd conduct conviction that constituted both a prior serious felony and a strike (§§ 667, subd. (a), 1170.12). After defendant failed to appear for a scheduled court appearance on April 26, 1999, a bench warrant issued for his arrest. Defendant was arrested on the warrant on March 22, 2006.
The prosecutor moved in limine to be allowed to present testimony by three victims of defendant’s prior offenses, Carla, Carol and Donald, under Evidence Code section 1108. Defendant objected to the testimony as more prejudicial than probative. (Evid. Code, § 352.) The court overruled the objection and granted the prosecutor’s request to admit the testimony.
We refer to all of the victim-witnesses in this matter by their first names in order to protect their privacy.
The prosecutor also moved to exclude under Evidence Code section 352 evidence that victims Nicole and Donald had suffered misdemeanor convictions involving moral turpitude. Defendant objected to the exclusion of evidence regarding Nicole’s conviction, but did not object to the exclusion of evidence regarding Donald’s conviction. The court granted the prosecutor’s request to exclude evidence regarding Donald’s conviction, but denied the request to exclude evidence regarding Nicole’s conviction.
The Prosecution’s Case
The Current Offenses
Nicole, who was born in 1984, was best friends in elementary school with Rebeca, defendant’s youngest daughter. When Nicole was 12, she and several other girls attended a slumber party for Rebeca’s 12th birthday. Everyone slept side-by-side on the floor in Rebeca’s bedroom, and Nicole slept by the door. After the other girls fell asleep, but while Nicole was still awake, she felt defendant’s cold hand rubbing her buttocks under her underwear. She immediately rolled over on her back and opened her eyes. Defendant said that he was just covering her with some blankets, and then he left. She did not say anything to him and she did not tell anyone else what happened. She continued to be friends with Rebeca, and continued visiting her home. She did not have any other problems with defendant, other than the way he hugged her when he greeted her. “[I]t was not the way you should hug a twelve-year-old little girl.” “He would go for the hug, but then like slide his hand down my butt and like let go like that; like, made it seem like he was just trying to let go, but his hands just somehow slid down my butt.”
Lorie, who was also born in 1984 and who was also good friends with Rebeca in elementary school, would often visit Rebeca at her home and sometimes spent the night there. One night while they were in the sixth or seventh grade, and while Lorie was sleeping on her back on the floor of Rebeca’s room, she woke up when she heard defendant enter the room. Defendant knelt down beside her and rubbed her on her breasts over her pajamas. She rolled over towards the bed and he rubbed her buttocks under her pajamas but over her underwear. After a few seconds, he stopped and left. Lorie did not say anything to defendant, and she did not tell anyone else what happened. She continued to remain friends with Rebeca, but she distanced herself from defendant.
Defendant touched Lorie on her buttocks over her pajamas another time while she slept on the floor of Rebecca’s room. However, Lorie could not remember whether this was the first or the second time defendant touched her.
Rebeca had a barbecue at her house on March 7, 1998. Her sister Jenny, defendant, and a lot of Rebeca’s school friends were there, including Nicole, Lorie, Debra and Destiny.
Nicole testified that, before going to the barbecue, she asked Destiny to not leave her alone with defendant. It rained during the barbecue, and Nicole held an umbrella for defendant while he did the barbecuing. After the other person with them left, defendant touched Nicole on her left upper thigh below her skirt line in a way that made her feel uncomfortable. She moved his hand away, gave him the umbrella, and went inside. Nicole told Lorie and Debra that she was feeling uncomfortable, and that defendant had touched her in the past. Lorie said that the same thing happened to her, so they decided to tell Rebeca. Nicole told Rebeca that defendant touched her in places that she did not like and that it made her feel uncomfortable.
Nicole admitted that, on October 18, 2002, she was convicted of misdemeanor possession of stolen property.
Destiny testified that Nicole asked her during the party to stay with her because she felt uncomfortable in the house. When Destiny asked her why, Nicole said that she would tell her later. Destiny did not see anything happen between defendant and Nicole at the party. However, she saw Nicole pull away from defendant outside, say “ ‘no,’ ” and walk into the house. Destiny asked Nicole what happened, but Nicole said, “ ‘Nothing.’ ” After that, Destiny tried to stay with Nicole, but she had to leave the party early. Later, in private, she and Nicole discussed what happened to Nicole. Nicole said that when she slept on the floor of Rebeca’s room, defendant’s cold hands touched her buttocks. When she rolled over and asked him what he was doing, he said that he was just covering her up. Nicole also said that defendant touched her by her breasts. Nicole was embarrassed about the situation and afraid of losing Rebeca’s friendship.
Lorie testified that she was in the kitchen and Nicole and defendant were outside when Lorie saw defendant touch Nicole on her buttocks during the party. Nicole walked away and Lorie followed her. Debra joined them. Nicole and Lorie started talking about what happened. They told each other that defendant had touched them while they were sleeping, and they decided that they had to tell Rebeca about it. Lorie told Rebeca that defendant had touched her when she was spending the night.
Debra testified that defendant never touched her in a way that made her feel uncomfortable. Nor did she see defendant touch other girls inappropriately. During the March 1998 barbecue, Nicole and Lorie told Rebeca and her sister Jenny about incidents that occurred when they spent the night. Debra was asked if anything like that ever happened to her, and she said no. She did say that the way defendant hugged her when she arrived at the party was “a little weird.” Defendant had patted her on the butt during the hug and then he rubbed the outside of her thighs.
Rebeca testified that Lorie did the talking that night because Nicole was crying. Lorie said that defendant had touched both Nicole and her. He had touched Lorie on her chest one night while she was sleeping over. He had touched Nicole at the party underneath her skirt. Nicole agreed with Lorie’s report. This was the first time Rebeca heard about the incidents. Rebeca asked Debra if anything happened to her, and Debra said that defendant gave her a hug and touched her butt when she greeted him that night. Rebeca told Jenny what happened, and they tried to call their mother. Rebeca then told everybody that the party was over and to call their parents to go home.
Somebody called the police. The police escorted Lorie home, where she told the police and her parents what happened. Nicole also told her mother and the police what happened. The next day, Rebeca’s mother apologized to Nicole and to Lorie.
Defendant failed to appear in this matter on the master trial calendar on April 26, 1999. He was arrested on the outstanding bench warrant in this matter on March 22, 2006.
Rebeca’s mother, who is now divorced from defendant, testified that she has four daughters. Defendant is the father of her three youngest daughters, including Jenny and Rebeca, and she has an older daughter, Kathy. Defendant was arrested for inappropriately touching a neighborhood child in 1981. He was arrested again in 1993. She never saw defendant inappropriately touch Rebeca’s friends. She was not at the 1998 barbecue, and only learned about what happened after she got home. Defendant told her, “ ‘I’m sorry. I just slapped her butt.’ ” She went to Lorie’s house the next day to apologize for whatever happened. Defendant left the country in 1999 because he was due to appear in court and he said that he did not want to go to jail. Defendant called her several times after that, but she usually hung up when she heard his voice. In 2005, he called to let the children know that his mother had passed away.
The Evidence Code Section 1108 Evidence
Carla testified that, in 1981 when she was seven years old, she was touched in a way that made her feel uncomfortable while she was at the home of her friend Kathy. She went to Kathy’s house to get a book and Kathy’s step-father answered the door. He said that nobody else was home but that she could look for the book. He went with her into Kathy’s room. While she was looking for the book in the closet, he sat on the edge of the bed and rubbed and caressed her buttocks and vaginal area over her clothing. Kathy felt uncomfortable but she continued what she was doing. The man put his hand down the back of her pants and rubbed her buttocks. He also offered her a dollar to take her pants off. She said no, and that she had to go home. He said that if she came back the next day he would give her a TV. When she got home, she told her mother that she was never going back. When her mother pressed her for an explanation, Carla told her mother what happened. Her mother called the police. She did not have to testify in court about what happened because the man pleaded guilty.
Carla’s mother testified that when Carla came home from her friend Kathy’s house that day, Carla was upset and said that she was never going back. After being pressed, Carla said that Kathy’s step-father answered the door and told her that she could look for the book. While she was in Kathy’s bedroom, bent over and looking in the closet for the book, the man touched her from behind on her genital area. He then put her on his lap and put his hand inside her pants. He said that he would give her a dollar if she let him touch her or take her pants off. He also said that if she came back the next day he would give her Kathy’s TV.
The parties stipulated that defendant pleaded guilty on December 28, 1981, to a violation of section 288, subdivision (a), lewd conduct on a child under 14, and that the charges arose out of an incident that occurred on October 5, 1981, between defendant and Carla.
Donald testified that in 1981, when he was 11 years old, a man who lived on his street showed him pornographic magazines and exposed himself while they were in the garage in the back of the man’s house. Donald had approached the man looking for a job. The man opened a Playboy magazine and showed him the centerfold. He then took his erect penis out of his pants and asked Donald to touch it. Donald poked at the man’s penis, then went home and told his mother. His mother called the police and he told the police what happened.
The parties stipulated that defendant was the person alleged to have molested Donald in 1981.
Carol, age 43, testified about an incident that occurred in 1993 while she was in a movie theater. The theater was not full, and she sat in the center section near the aisle. Well after the movie started, a man came in and sat down two rows in front of her and a few seats over. The man kept moving and looking around. She thought that it was odd so she kept an eye on him. He stopped looking around and started moving rhythmically. Because she thought that he was masturbating, she left. But then, because she did not want to accuse him before being sure, she went back in and looked over the man’s shoulder. She saw his fully exposed erect penis and his hand, and saw that he was masturbating. She then reported it to the theater manager. The police were called and she told them what she saw.
The parties stipulated that defendant pleaded no contest on September 7, 1993, to a violation of section 647, subdivision (a), lewd conduct in public.
The Defense Case
Reyes Beas testified that he has known defendant for about 20 years and that he attended a lot of parties at defendant’s house. Defendant was always very friendly with Beas’s two sons and all of the other children there. Beas never noticed defendant touching any of the children inappropriately. He was not aware that defendant molested a seven-year-old girl and an 11-year-old boy in 1981, and that defendant exposed himself and masturbated in a movie theater in 1993.
Pete Flores testified that he has known defendant for about 18 years and that he was at the barbecue at defendant’s home on March 7, 1998. It was raining, and defendant did the barbecuing while Flores stood next to him and talked. Everybody who came to the party greeted defendant. Some of the children hugged defendant, including one of Rebeca’s friends, but Flores does not remember defendant hugging people in general. When defendant was done barbecuing, he and Flores talked in the living room. Flores does not remember something happening at the barbecue that made some of the children there upset. In all the time Flores has known defendant, he never saw defendant touching any child inappropriately. Flores would still trust defendant with his children. Knowing that defendant molested a seven-year-old girl and an 11-year-old boy in 1981, and that he exposed himself and masturbated in a movie theater in 1993, would change Flores’s opinion of defendant.
Defendant testified in his own behalf that he was arrested and accused of doing something to a boy in 1981. The boy had approached him looking for a job while he was underneath his car changing its oil in his garage. He told the boy that he did not have a job or money to give him. He told the boy to leave but the boy did not do so. The boy started talking rudely and searching the garage, which defendant shared with his neighbor. The boy might have found some pornographic magazines in the neighbor’s boxes; the boy said that defendant had some dirty books and showed some to defendant. Defendant said that they did not belong to him and to leave them where they were. He did not expose himself to the boy or ask the boy to touch his penis. He thinks the boy lied about what happened because he was angry at defendant for not giving him any work. Although defendant was arrested for having touched the boy inappropriately, he did not plead guilty to any sexual misconduct involving the boy. His understanding is that charges relating to Donald were dismissed in view of his plea to the charges involving Carla.
Defendant pleaded guilty to one act of lewd conduct with a child under 14 relating to the charges involving Carla. The day that Carla came to his house, he arrived home from work carrying groceries while she was knocking at his door. Nobody else was home and he asked her in Spanish who she was looking for. She responded in English, and all he could understand was “ ‘Kathy has a book.’ ” Defendant asked her more questions in Spanish, but she started crying. A woman called to Carla from across the street, and she ran to the woman. The woman yelled at defendant so he went looking for his wife. He never let Carla into his house and he never touched her in any way. He thinks that Carla made up her story because she was upset at him for not giving her Kathy’s book. He pleaded guilty to lewd conduct because he was afraid of going to prison and losing his family and his job; by pleading guilty he avoided that possibility even though he did go to jail. He does not remember telling a probation officer after his conviction that he let Carla into his home, and he did not tell the probation officer that he touched Carla’s butt.
In 1993, he was arrested at the movie theater. He went there thinking he was going to see an action film. He got there about 10 minutes after the movie started and soon realized that the movie was boring. He had bought a soda and he looked for a cup holder after he sat down. His seat did not have a cup holder, and he looked around for a seat that did, but he could not see anything in the dark theater. He decided to stay where he was and he placed his soda between his legs. He did not remove his penis from his pants and he did not masturbate. About 10 minutes later a police officer came, shined a flashlight in his face, and told him to step outside. He does not remember telling an officer that his zipper got stuck when he used the bathroom, and that he tried zipping it up while he was in the theater but he could not get it zipped up. He pleaded guilty in the case but he did not have to go to jail.
Usually his wife was home when his daughters had sleepovers at his house. At times he would have to wait for his wife to arrive home. After she did, he would go into his daughter’s room to check to see how the girls were doing, whether they were asleep or covered up. He never touched any of the girls, even accidentally, while he was covering them up. He recalls covering up Nicole two or three times, but he never touched her buttocks. Nor did he touch Lorie’s breasts or buttocks.
He would often have parties at his house and sometimes more than 50 or 60 people, including adults and children, attended them. He would greet everybody when they arrived, and sometimes he hugged his friends and their children. At no time when he hugged the children did he have any sexual thoughts towards them.
Some of defendant’s friends were at the barbecue on March 7, 1998, but the majority of the people there were Rebeca’s friends. He did not greet people when they arrived because he was busying barbecuing. He greeted them when they came out to the backyard. Flores stayed outside with defendant for more than an hour, but went inside before he finished cooking. Nicole greeted defendant while Flores was still there. She hugged him and, because he had things in his hands, he just put one of his arms around her shoulder. She stood next to him holding an umbrella while talking with her friends because it was sprinkling. He did not touch her buttocks or her leg, and she never became upset or pushed him away. He thinks that Nicole and Lorie made up their allegations in order to ruin Rebeca’s party.
He left the country while he was awaiting trial because his attorney told him that the case was “very delicate.” He is not guilty but he wanted to avoid going to prison. He was afraid that he was going to lose his family, friends, employment, and house. Also, he was told that his mother was very ill and that he might not see her again. He left the week before he was scheduled to come to court and went to Mexico to see his mother. He stayed with her for eight or nine months and then went to Baja California. He stayed there working for about two years, then went back and stayed with his mother for close to a year. His mother died in 2005. He returned to the United States in March 2006 in order to take his ill boss from a hospital in the United States to her home in Mexico. He was aware that there was a warrant out for his arrest, and that he could be arrested, but he came back anyway.
Verdicts and Sentencing
On August 23, 2006, the jury found defendant guilty of all three counts of lewd conduct on a child under 14 (§ 288, subd. (a)), and found the allegation that defendant had a prior serious felony conviction for violating section 288, subdivision (a), to be true. The court found that the prior serious felony conviction qualified as a strike. (§ 1170.12.) On October 11, 2006, the court sentenced defendant to 25 years in state prison, the sentence consisting of 12 years, double the midterm, on count 1; a consecutive term of four years, one-third the midterm, on count 2; a consecutive term of four years, one-third the midterm, on count 3; and a consecutive term of five years for the prior serious felony enhancement. The court also imposed “[a] fine of $200 plus penalty assessment . . . pursuant to Section 290.3 of the Penal Code, and a court security fee of $20 . . . pursuant to Section 1465.8 of the Penal Code.”
DISCUSSION
Evidence Code Section 1108 Evidence
When the prosecutor moved in limine to admit evidence of defendant’s prior sexual offenses against Carla, Donald, and Carol, defendant objected to admission of the evidence for two reasons: (1) the 1981 offenses regarding Carla and Donald occurred 17 years before the charged offenses, and were therefore too remote; and (2) the type of conduct alleged as to Donald and Carol involved exposing his penis, which was not alleged in the current offenses, so the evidence would be more prejudicial than probative.
The court stated that, “[w]hile I think it is true that sexual offenses of the same type are quite likely to show predisposition, I don’t think that that’s necessarily all that has to be considered.” The court stated it considered other factors: (1) the greater the number of acts of sexual misconduct, the greater the likelihood of a predisposition to commit such crimes; (2) the fact that the current offenses were alleged to have occurred starting in 1995 rather than just in 1998, and that defendant was in custody for a period of time after the 1981 offenses; (3) it would not take an undue consumption of time to prove the prior conduct; and (4) the prior conduct was not more inflammatory than the charged conduct. After considering these factors the court ruled that “it is appropriate, and I will allow the evidence” regarding Carla, Donald, and Carol.
On appeal, defendant contends that he was denied due process and a fair trial when the court admitted the evidence against him regarding Carla, Donald, and Carol under Evidence Code section 1108. Specifically, he argues that the court abused its discretion in admitting the evidence concerning Carla and Donald because it was too remote to be probative of whether he had a propensity to commit the acts charged in this case, the offenses were not similar to the current charges, and the offenses were far more inflammatory than the current charges. He argues that the court abused its discretion in admitting the evidence of the offense involving Carol because it was too dissimilar to the current charges to be probative of whether he had a propensity to commit the acts charged in this case, and the offense was far more inflammatory than the current charges. (See Evid. Code, § 352.)
Evidence Code section 1108, subdivision (a), states: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” Evidence Code section 1101, subdivision (a), states in pertinent part: “Except as provided in this section and in Section[] . . . 1108, . . . evidence of a person’s 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.” Thus, under section 1108, evidence of uncharged sexual offenses may be admitted to show that the defendant had a disposition or propensity to commit such crimes. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013 (Reliford); People v. Falsetta (1999) 21 Cal.4th 903, 915 (Falsetta).)
“[T]he trial court’s discretion to exclude propensity evidence under [Evidence Code] section 352 saves [Evidence Code] section 1108 from defendant’s due process challenge.” (Falsetta, supra, 21 Cal.4th at p. 917.) “By reason of [Evidence Code] section 1108, trial courts may no longer deem ‘propensity’ evidence unduly prejudicial per se, but must engage in a careful weighing process under [Evidence Code] section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]” (Falsetta, supra, at pp. 916-917; see also People v. Harris (1998) 60 Cal.App.4th 727, 737-740 (Harris).)
Under Evidence Code section 1108 trial courts “retain broad discretion to exclude disposition evidence if its prejudicial effect, including the impact that learning about defendant’s other sex offenses makes on the jury, outweighs its probative value.” (Falsetta, supra, 21 Cal.4th at p. 919; Harris, supra, 60 Cal.App.4th at pp. 740-741.) “A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Here, the trial judge considered the probative value of the evidence of defendant’s prior offenses and its inflammatory nature, as well as the remoteness in time of the prior offenses and the amount of time involved in introducing the evidence. The court found that the probative value of the prior offenses was not outweighed by their possible remoteness in time. “[T]he passage of a substantial length of time does not automatically render the prior incidents prejudicial” (People v. Soto (1998) 64 Cal.App.4th 966, 991), and even 20-year-old offenses have been found to be not too remote. (See People v. Waples (2000) 79 Cal.App.4th 1389, 1395.) The court also found that it would not take an undue consumption of time to present the evidence and that the prior offenses were not more inflammatory than the charged offenses. Although the prior offenses were not similar to the charged offenses, Carla, one of the victims of defendant’s prior offenses, was a friend of defendant’s young step-daughter, and Nicole and Lorie, the victims of the current offenses, were friends of defendant’s youngest daughter. The incident involving Donald occurred around the same time as the incident involving Carla; the incident involving Donald and the incident involving Carol were similar, as they both involved defendant exposing his penis to the victim; and the incident involving Carol occurred just a few years before the charged offenses. In addition, defendant’s acts with Carla and Carol resulted in criminal convictions, so the jury in the present case would be disinclined to punish him for those offenses. (People v. Ewoldt (1994) 7 Cal.4th 380, 405.) We cannot say that the trial court’s decision to admit the evidence of defendant’s prior sexual offenses was arbitrary, capricious, or patently absurd. Accordingly, we will not disturb the trial court’s exercise of its discretion. (People v. Rodriguez, supra, 20 Cal.4th at pp. 9-10.)
Ineffective Assistance of Counsel
The prosecutor advised the court and defendant that Nicole suffered a misdemeanor conviction in 2002 for a violation of section 496, subdivision (a), possession of stolen property, and that Donald suffered a misdemeanor conviction in 1989 for a violation of section 647.6, annoying or molesting a child under 18. Although both offenses involved moral turpitude, the prosecutor requested that the court exclude evidence of the convictions pursuant to Evidence Code section 352, as the offenses occurred after the victims reported defendant’s conduct and therefore their offenses “don’t have any bearing on the credibility of the statements they gave or on the reports they made.” Defense counsel argued that Nicole’s conviction “does tend to impeach a witness, whether it occurred before she made the complaints or not,” and that it “would be important” for the jury “to be aware of this crime . . . and to be able to use that in weighing the credibility of her testimony.” Counsel did not oppose the prosecutor’s request to exclude evidence of Donald’s conviction. The court denied the prosecutor’s request to exclude evidence of Nicole’s conviction, but ruled as to Donald’s conviction that, “[g]iven the age of that prior, the fact that there hasn’t been any subsequent conduct, I think it would be more prejudicial than probative, and so I won’t allow Donald[’s] prior to be used.”
Defendant now contends that he was denied his right to effective assistance of counsel when counsel failed to seek to impeach Donald with his prior conviction. He argues that Donald’s conviction was admissible for impeachment purposes, and that counsel had no reasonable tactical basis for failing to seek to impeach Donald with that conviction or for failing to object to the court’s ruling excluding the evidence.
In order to establish that trial counsel was constitutionally ineffective, defendant must show (1) that counsel failed to act in a manner to be expected of a reasonably competent attorney acting as a diligent advocate, and (2) that defendant was prejudiced thereby. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217; People v. Pope (1979) 23 Cal.3d 412, 423-425; Strickland v. Washington (1984) 466 U.S. 668, 687-688.)
Regarding the first prong, if trial counsel’s omissions stemmed from an informed tactical choice that a reasonably competent attorney might make, the conviction must be affirmed. (People v. Pope, supra, 23 Cal.3d at p. 425; People v. Lucas (1995) 12 Cal.4th 415, 437.) We must be “highly deferential” to the tactical decisions made by counsel. (Strickland v. Washington, supra, 466 U.S. at p. 689.) There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Ibid.)
As for the second prong, a defendant establishes prejudice by demonstrating that without the deficient performance there is a reasonable probability the result would have been more favorable. In other words, even if counsel’s actions fall below the threshold of reasonableness, defendant must still demonstrate that counsel’s actions were prejudicial. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) In fact, we “need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.” (Strickland v. Washington, supra, 466 U.S. at p. 697.)
The Attorney General notes that defense counsel was never asked why he failed to seek to impeach Donald with evidence of his prior misdemeanor conviction or why he did not object to the trial court’s ruling to exclude such evidence. The Attorney General contends that defense counsel may have believed that it was unnecessary to seek to introduce the evidence because the court excluded it under Evidence Code section 352. “Defense counsel likely did not object to the trial court’s decision to exclude the evidence because it would have been futile. Since the record does not reveal whether defense counsel had a plausible tactical reason for not objecting, [defendant’s] contention is not properly before this court on appeal.”
In People v. Frierson (1979) 25 Cal.3d 142, at page 158, our Supreme Court stated: “The failure to impeach a witness or to object to evidence are matters which usually involve tactical decisions on counsel’s part and seldom establish a counsel’s incompetence. As we recently observed ‘Matters involving trial tactics are matters “as to which we will not ordinarily exercise judicial hindsight . . . .” [Citation.] “In the heat of a trial, defendant’s counsel is best able to determine proper tactics in the light of the jury’s apparent reaction to the proceedings. Except in rare cases an appellate court should not attempt to second-guess trial counsel . . . .” [Citations.] . . . “The choice of when to object or not is inherently a matter of trial tactics not ordinarily reviewable on appeal; failure to object does not necessarily indicate incompetence . . . .” ’ [Citations.]” (See also People v. Barnett (1998) 17 Cal.4th 1044, 1140.)
Even if we were to determine that counsel’s decision not to seek to impeach Donald was not a reasonable tactical decision, we would find no prejudice. Even if the court had admitted the impeachment evidence, and the jury had disbelieved Donald’s testimony, there is not a reasonable probability that a result more favorable to defendant would have occurred. The evidence against defendant relating both to his charged offenses and his other prior offenses was strong. Both Lorie and Nicole described similar conduct by defendant that occurred in similar situations. In addition, defendant admitted pleading guilty to charges involving the conduct that Carla and Carol testified to. Accordingly, defendant has not demonstrated that counsel rendered constitutionally ineffective assistance.
The Probation Report
During his cross-examination of defendant, the prosecutor showed and asked defendant about his statements to a probation officer in 1981 regarding the facts underlying his conviction for the offense involving Carla. Defendant testified that he remembered talking to the probation officer, but he did not remember telling the probation officer that he let Carla into his home to look for a book, and he denied that he said that he touched Carla on the butt. At the conclusion of defendant’s testimony, in the presence of the jury the prosecutor moved to admit into evidence exhibit No. 6, “a certified conviction for the offense in 1981” involving Carla. Defendant objected to the inclusion of the probation report as part of the exhibit, and the court stated that they would discuss the issue outside the presence of the jury.
Outside the presence of the jury, the court asked the prosecutor why he wanted the probation report admitted as part of the exhibit. The prosecutor stated that he wanted “defendant’s statement to probation,” and that he believed that the statement was admissible “as the statement of the defendant,” “and that is what I cross-examined Mr. Ornelas on on the stand, his statements to the probation officer.” The prosecutor stated that he went over defendant’s statement with him while he testified and defendant “denied those things,” and that now he “would like to admit them as a prior inconsistent statement or a statement of defendant.”
Defense counsel argued that the report was impermissible hearsay. “It is an official document, that’s true, but the statements therein may or may not be true; they are just prepared by a third person who hasn’t testified here, and it’s not a statement that Mr. Ornelas prepared.” “[O]ur position is that he did not make those statements and somebody else attributed those statements to him. Well, no one else has testified that he made those statements, so the document may be true, but that doesn’t mean that everything contained within the document is true.”
The court initially stated that it was “not sure that even though that is an authenticated document that the probation – that the use of the probation report would not be a denial of the defendant’s right to confrontation, so I’m going to have to look at a couple cases.” After a recess, the court stated that People v. Monreal (1997) 52 Cal.App.4th 670 and People v. Mobley (1999) 72 Cal.App.4th 761, “indicate that the defendant’s statement to a probation officer can be used. [¶] I’m not going into all the details because we’re 20 minutes late getting started, but I feel confident that that’s the appropriate decision, and so I will allow the defendant’s statement from the probation report. [¶] We will redact the rest of the report; only his statement will be allowed. Let’s call up the jury.”
Exhibit No. 6A, which includes the redacted probation report, was later admitted into evidence. As redacted, the probation report includes the court data, including a description of the charges that defendant pleaded guilty to and the charges that were dismissed, and “Defendant’s Statement.” That statement is as follows. “In his verbal statement, defendant Daniel Ornelas denied committing the alleged charge and indicates he was extremely confused during the Court process and pled guilty. Mr. Ornelas indicated he remembers the victim visiting his residence in an attempt to obtain books from his daughter and, after he allowed the victim to search for the books, he politely asked the victim to leave his residence and shortly thereafter he was charged with the present offense. However, the defendant did indicate, prior to his asking the victim to leave, he, in a polite manner, patted her buttocks area as a gesture for her to leave at that time.”
Defendant now contends that the probation report was hearsay, and that the court’s erroneous admission of the report into evidence denied him due process and a fair trial, and denied his right to confrontation and cross-examination. He argues that, to the extent that the probation report relates statements made by him to the probation officer, it constitutes double hearsay: “[Defendant’s] statements to the probation officer was the first hearsay layer and the probation officer’s recordation of those statements was the second hearsay layer.” “While [defendant’s] statements may have qualified as an admission, the probation report itself was inadmissible hearsay and no foundation was established for the admission of the document.”
The Attorney General contends that admission of defendant’s statement in the probation report was proper. “The probation report was admissible under the record by a public employee exception to the hearsay rule.” Defendant’s statement in the probation report was admissible “because it was a statement offered against a party opponent and was inconsistent with [defendant’s] trial testimony.”
“Under section 1280 a record may be admitted into evidence if it was made by and within the scope of duty of a public employee at or near the time of the act, condition, or event recorded and if the sources of information and the method and time of preparation were such as to indicate its trustworthiness.” (People v. Parker (1992) 8 Cal.App.4th 110, 116.) The probation report was prepared by a disinterested public employee as part of his or her professional duties near the time of the event it recorded, and the source of the information contained in the report and the employee’s objectivity and expertise give the probation report a certain degree of trustworthiness and reliability. (Cf. Lake v. Reed (1997) 16 Cal.4th 448, 461 [a police accident report is admissible hearsay]; In re Malinda S. (1990) 51 Cal.3d 368, 377 [a social studies report is admissible hearsay].) Contained in the report, in addition to other statements, is defendant’s admission that he allowed Carla into his home to search for a book and while she was there he touched Carla’s buttocks. As a party admission, defendant’s statement is excepted from the hearsay rule. (Evid. Code, § 1220 ; Lake v. Reed, supra, 16 Cal.4th at p. 461.) Defendant testified at trial that he did not allow Carla into his home and he did not touch her buttocks, which was inconsistent with his statement to the probation officer. Thus, the Attorney General contends that defendant’s statement in the probation report was properly admitted and considered by the jury.
“Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: [¶] (a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act, condition, or event. [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.” (Evid. Code, § 1280.)
“Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.” (Evid. Code, § 1220.)
People v. Trujillo (2006) 40 Cal.4th 165, cited by defendant and decided after the trial in this matter, is distinguishable. In that case the court held that “a defendant’s statements, made after a defendant’s plea of guilty has been accepted, that appear in a probation officer’s report prepared after the guilty plea has been accepted are not part of the record of the prior conviction, because such statements do not ‘reflect[] the facts of the offense for which the defendant was convicted,’ ” and therefore the statements “cannot be used to prove that the prior conviction was for a serious felony.” (Trujillo, supra, at p. 179.) In so holding, the court disapproved of the decisions in People v. Monreal, supra, 52 Cal.4th 670, and People v. Mobley, supra, 72 Cal.App.4th 761, “to the extent they are contrary to this opinion.” (Trujillo, supra, at p. 181, fn. 3.) In this case, defendant’s statement to the probation officer that appears in the probation report was not admitted to prove the facts underlying the prior conviction. (Evid. Code, § 1200, subd. (a).) Rather, the statement was admitted as a party admission (Evid. Code, § 1220) recorded in an official record (Evid. Code, § 1280) that was inconsistent with his trial testimony. (Evid. Code, § 1235.) As so limited, the statement was properly admitted.
Even if we were to find that the court erred in admitting the redacted probation report, we would not find that reversal is required. Viewed as an ordinary error of state law, a court’s ruling allowing the erroneous admission of hearsay evidence despite due objection would ordinarily be tested under the familiar standard of People v. Watson (1956) 46 Cal.2d 818, 836: reversal would be justified only if it appeared, from a review of the record as a whole, that a result more favorable to defendant would probably have followed in the absence of the error. However, defendant argues that the admission of the hearsay here also violated his right under the federal and state Constitutions to confront adverse witnesses. (U.S. Const., amends. 6, 14; Cal. Const., art. I, § 15; Crawford v. Washington (2004) 541 U.S. 36; see also, § 686.) The erroneous admission of evidence in violation of the right to confront witnesses is tested by the more rigorous standard of Chapman v. California (1967) 386 U.S. 18, under which reversal is required unless we can say that, beyond a reasonable doubt, the result would not have been more favorable in the absence of the error. (See People v. Brown (2003) 31 Cal.4th 518, 538.)
Here, Carla testified as to what defendant did when she went to his home in 1981 looking for a book. Carla’s mother testified as to what Carol told her immediately after the incident, and their testimony was consistent. Defendant testified that he did not remember telling the probation officer some of the statements in the probation report, and he denied making some of the statements. Defendant also denied Carla’s accusations and testified as to why he thought Carla made up her story. Defendant used a similar defense against the current charges: he denied that the offenses occurred and testified as to why he thought his accusers made up their stories. Yet, defendant admitted that he pleaded guilty to a prior offense involving Carla. On this record, we find, beyond a reasonable doubt, that the result of the proceedings would not have been more favorable to defendant absent admission of the redacted probation report. (Chapman v. California, supra, 386 U.S. 18.)
CALCRIM No. 1191
The trial court instructed the jury with CALCRIM No. 1191 as follows: “The People presented evidence that the defendant committed the crimes of Penal Code section 288(a), lewd or lascivious act on a child under the age of 14 years, and Penal Code section 647(a), indecent exposure, that were not charged in this case. These crimes are defined for you in these instructions. [¶] 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. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit violations of Penal Code section 288(a), as charged here. If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of violations of Penal Code section 288(a). The People must still prove each element of the charge beyond a reasonable doubt.”
Prior to the giving of the instructions at the conclusion of the trial, the court asked both parties whether there were “any additional instructions that you requested or any disagreements you had with any of the instructions that the Court’s prepared to give?” Both parties responded, “No, Your Honor.” Defendant now contends that CALCRIM No. 1191 violates his right to due process and a fair trial because it allowed the jury to find the fact of the prior crimes true and infer predisposition using a preponderance-of-the-evidence standard, and it allowed the jury to infer his guilt of the charged offenses merely from propensity evidence. He argues that review is allowed and reversal is required even absent his objection below.
Defendant acknowledges that our Supreme Court rejected a similar challenge to CALJIC No. 2.50.01. (See Reliford, supra, 29 Cal.4th 1007.) Defendant also acknowledges that the appellate court in People v. Schnabel (2007) 150 Cal.App.4th 83 (Schnabel), concluded that the version of CALJIC No. 2.50.01 considered in Reliford is materially similar to CALCRIM No. 1191 in its explanation of the law. However, he contends that the Schnabel decision should not be followed by this court.
In Reliford, our Supreme Court found that “the 1999 version of CALJIC No. 2.50.01 correctly states the law.” (Reliford, supra, 29 Cal.4th at p. 1009.) It also found that the 2002 revision of the instruction, which deleted one sentence and added another, was “an improvement.” (Id. at p. 1016.) “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.” (Schnabel, supra, 150 Cal.App.4th at p. 87, fn. omitted.) “Although the instruction considered in Reliford was the older CALJIC No. 2.50.01, there is no material difference in the manner in which each of the instructions allows the jury to conclude from the prior conduct evidence that the defendant was disposed to commit sexual offenses and, therefore, likely committed the current offenses. CALCRIM No. 1191, as given here, cautions the jury that it is not required to draw these conclusions and, in any event, such a conclusion is insufficient, alone, to support a conviction. Based on Reliford, we therefore reject defendant’s contention that the instruction violated his due process rights.” (People v. Cromp (2007) 153 Cal.App.4th 476, 480; see also, Schnabel, supra, 150 Cal.App.4th at p. 87; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Fine and Penalty Assessment
At sentencing, the court imposed a $200 fine pursuant to section 290.3, plus penalty assessments. The court did not state the amount of the penalty assessments, or identify the source of the assessments, but the abstract of judgment states that they amount to $470. Defendant contends that because the offenses were committed no later than 1998, the penalty assessments must be reduced to $340 in order to not violate ex post facto provisions. The Attorney General concedes the issue, and we find the concession appropriate.
At the time of the offenses, section 1464, subdivision (a), provided for a mandatory $10 penalty assessment on every $10, or fraction of $10, of “every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses.” (Stats. 1996, ch. 1077, § 27.) Government Code section 76000, subdivision (a) provided for an additional penalty of $7 for every $10, or fraction of $10, “which shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses.” (Stats. 1991, ch. 1168, § 4.) Together, these sections required a penalty assessment of $17 for every $10 imposed as a fine. Thus, the fine of $200 required the court to also impose a penalty assessment of $340.
Other statutes providing for additional penalty assessments (e.g., § 1465.7; Gov. Code, § 70372), became operative after the date of defendant’s offenses. Therefore, imposition of these penalty assessments violate the prohibition against ex post facto laws. (People v. High (2004) 119 Cal.App.4th 1192, 1197-1199.) Accordingly, we will order the penalty assessment reduced from $470 to $340.
Court Security Fee
At sentencing, the court also imposed a court security fee of $20. Defendant contends that the imposition of this fee also violates the prohibition against ex post facto provisions. He acknowledges that our Supreme Court rejected this contention in People v. Alford (2007) 42 Cal.4th 749, 752, and that we are obligated to follow Alford (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455). However, for purposes of further review, he contends that Alford was wrongly decided under federal precedent. In light of Alford, we need not further discuss this contention.
DISPOSITION
The abstract of judgment is ordered modified by reducing the penalty assessment on the $200 fine from $470 to $340. As so modified, the judgment is affirmed.
WE CONCUR: RUSHING, P.J., ELIA, J.