Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC592684
ELIA, J.Following a jury trial, during which appellant appeared in propria persona, appellant was convicted of 10 counts of lewd and lascivious acts on a child under 14 years of age. (Pen. Code, § 288, subd. (a), counts one through five victim M. Doe and counts six through ten victim R. Doe.) As to each of these counts, the jury found true the allegations that appellant committed the crime against more than one victim within the meaning of Penal Code sections 667.61, subdivisions (b) and (e), and that he had substantial sexual contact with the victims within the meaning of Penal Code section 1203.066, subdivision (a)(8). In addition, the jury found appellant guilty of one count of inducing a minor to pose for a sexual photograph (Pen. Code, § 311.4, subd. (c)); and one misdemeanor count of possessing child pornography (Pen. Code, § 311.11, subd. (a)).
The two victims in this case and their family members were referred to at trial by their first initial, last name Doe. For the sake of the reader, we refer to the victims and their family members by the first initial of their first name.
On January 29, 2007, the court sentenced appellant to an aggregate term of 152 years to life in state prison. Appellant filed a notice of appeal the same day he was sentenced. Appellant raises a litany of errors, which we detail later in the discussion section of this opinion. For reasons that follow, we find that either appellant has forfeited or that there is no merit to any of appellant's contentions. Accordingly, we affirm appellant's convictions.
Facts and Proceedings Below
Prosecution Case The Assaults on R.
J., R.'s father was a casual laborer. He met appellant sometime in 2001, or 2002, when appellant picked up J. from Home Depot. Sometimes, J. performed stuccowork for appellant. Appellant asked J. about his children and asked to meet them. Eventually, appellant hired R. to clean up around appellant's home at the weekends. At some point, M., R.'s cousin, began to go to appellant's house to help R. clean up. Appellant would buy both boys shoes and toys.
Fl, R.'s mother, testified that in 2004, R. started to spend entire weekends with appellant. Appellant was "a grandfather" to R., part of the family. Appellant told her that the person that lived in the house with him, Fred, was "like his son."
R. was 13 years old at the time of trial. When he entered the United States he was seven. Appellant told R. that his last name was Harmon. Fred also told R. that his last name was Harmon and that appellant was his father. R. testified that appellant was "like a grandfather or something." Appellant would buy him and his brothers and cousins clothes, toys, and shoes. Appellant would take them to different places. Appellant purchased a cell phone for R. and paid the monthly fees. R. testified that appellant and Fred were the only people that called him on the cell phone. Initially, R. visited appellant occasionally. Eventually, after about one and a half years, R. spent the night at appellant's home. R. estimated that on about 10 occasions when only Fred and appellant were present, he and M. spent the night. R. saw appellant use a computer "not that often."
R. testified that appellant and Fred touched him "in a bad way." Appellant was the first one to touch R. He used his hand to touch R.'s penis about three or four times. In addition, appellant used his mouth to touch R.'s penis about three or four times. R. recalled that the first time appellant touched him was at appellant's home when appellant led R. into appellant's bedroom and started to touch his penis under his clothes. R. told appellant numerous times to stop and he tried to pull away from appellant. Appellant continued to touch R. with his hand. Then, he put his mouth on R.'s penis. Appellant told R. not to say anything about what had happened. R. felt scared and embarrassed about the incident. Appellant promised to give R. his Dodge car if R. allowed appellant to touch him. In addition, appellant offered to buy R. "more stuff." After the first touch, appellant gave R. $50.
R. testified that the second touch occurred when he was 12 years old. He was sleeping in appellant's "second living room." While sleeping on the floor, R. awoke to find appellant "sucking" his penis. R. told appellant to stop. Appellant became angry and stated that he would buy M. more things than he would buy R.
R. testified that the third touch occurred while he was still 12 years old and in sixth grade. Around midnight, R. was asleep and again awoke to find appellant doing "the same thing that happened the first time." R. told appellant to stop. This time appellant did stop after R. asked him to stop a second time. R. estimated that appellant touched him "in a bad way" three times while R. was sleeping in the living room.
On another occasion, appellant touched R. when appellant had hurt his back. R. was sleeping in the same bed as appellant and M. Appellant reached over and touched R.'s penis with his hand. R. testified that he rolled over to the other side of the bed and went back to sleep.
R. saw photographs that appellant kept in his closet. The photographs were of boys. Once, appellant put a "porno" movie on his computer. The movie showed boys "sucking each others penis." R. testified that Fred took photographs of him while he was naked. Initially, because he was embarrassed, R. told the police that nothing had happened.
The Assaults on M.
When he was 12 years old, M. spent nights at appellant's residence. M. thought that he and R. had spent the night at appellant's house over 100 times. M. testified that he loved appellant "like a father." However, overall, appellant touched M.'s penis with his hand and mouth more than 30 times. In addition, appellant's penis touched M.'s "butt" about five times. On two or three occasions, appellant had put his penis in M.'s mouth. On four or five occasions, M. touched appellant's penis. On more than one occasion, appellant took photographs of M. when M. was nude. Appellant would take M. into the bedroom, tell him to take off his clothes and then demonstrate the pose M. was supposed to take.
All the sexual touches occurred in appellant's house on appellant's bed. If M. was asleep on the couch, appellant would wake up M. and lead M. to appellant's bed. After the first time that appellant put his mouth on M.'s penis, M. was afraid to tell anyone. When he started getting gifts and other things from appellant, M. began to like what was happening and would sometimes ask appellant to do it. One of the gifts that appellant gave M. was a cell phone.
May 2005 Traffic Accident and the Ensuing Investigation
On May 17, 2005, Tung Ngo was involved in a traffic accident with appellant at the gas station at McLaughlin and Tully Road in San Jose. Appellant was driving a dark green Bronco SUV, which collided with Ngo's car. Appellant showed Ngo car registration documents that had expired, but said he had no driver's license. When Ngo said that he wanted to call the police, appellant collected his documents and drove away. Ngo identified a security video showing the contact.
About four days after this accident, appellant phoned M. from Oregon and told him to go to appellant's house. Appellant told M. to throw away computer discs and papers that appellant kept by his computer and inside his closet. Appellant told M. to take paperwork and computers and hide his "4runner" at M.'s residence. M. went to appellant's house with his brothers and sisters. M. took a vacuum, Fred's digital camera, keys to the house and cars and two computers.
On May 22, 2005, M.'s family members contacted the police and reported that they suspected that appellant had abused M. and R. San Jose Police Detective Robert Dillon searched appellant's home. Detective Dillon seized letters, spiral notebooks, computer discs, DVDs and a book describing ways to change identification. The room associated with Fred contained a "rack server" that housed multiple computer hard drives. The computer discs seized contained images of children engaged in or simulating sex acts. From a printer in appellant's bedroom, the police seized a page of writing, which listed first names and details of sexual encounters with the physical descriptions of the persons involved. From appellant's master bedroom closet, the police seized child pornography contained in 12 to 13 binders and a manuscript. From the computer desk in appellant's bedroom, the police seized computer discs containing child pornography and multiple images of M. and R. naked. These photographs showed that the images were taken in appellant's bedroom on his bed. The binders taken from appellant's closet contained "Post-it notes" with names and numbers that referred back to a separate document.
Appellant was taken into custody in Washington on May 23, 2005. He was escorted back to California on June 6, 2005.
Physician's assistant Mary Ritter conducted a SART exam on both M. and R. Ritter found nothing abnormal nor evidence that either child had been anally penetrated.
Detective Dillon testified that he examined the entire manuscript taken from appellant's computer, which consisted of 456 pages. Detective Dillon concluded that the manuscript was a narrative with coded entries describing appellant's sexual history. In several places in the manuscript appellant had written that it was a work of fiction. The manuscript contained a discussion of the United States system of justice and a discussion that sought to distinguish pedophiles and pederasts. The manuscript detailed sex acts with at least 100 minors. Detective Dillon was able to corroborate some of the information about the molest victims with police reports and six notebooks seized from appellant. Detective Dillon reviewed all the notebooks and found that M. and R. were listed more than once in multiple notebooks.
1108 Evidence
When Mike was 15 years old he met appellant in Alaska in either 1969 or 1970. Just after Mike turned 16 years old, appellant volunteered to teach him how to drive.
In the trial court all the 1108 witnesses were referred to by their first name and first initial of their last name. For the benefit of the reader we refer to these witnesses by only their first name.
Appellant drove Mike to a secluded area. Simultaneously, appellant began to fondle Mike's penis and his own penis. Then, appellant orally copulated Mike until Mike ejaculated. Mike told appellant, "no." Eventually, appellant drove Mike toward his home, but stopped a few blocks away. After he stopped the car, appellant pulled out his own penis and told Mike that he would have to orally copulate appellant's penis "so that he would be sure [Mike] wouldn't tell anyone about it." Mike complied out of fear. Mike reported the sexual assault to his sister. Subsequently, Mike's sister reported the incident to a state trooper. In February 1970, Mike learned from the authorities that appellant had left town.
Joey testified that he met appellant in 1979 or 1980 when he was 14 years old. Joey was trying to buy marijuana when a dealer led him to appellant's home. Appellant offered to pay Joey to clean up around appellant's home. As Joey was cleaning up one day, appellant offered him beer and marijuana. When Joey excused himself to use the bathroom, appellant followed him and asked to see Joey's genitals. The next thing that Joey remembered was lying on the bed "not in control" of his body. Appellant was holding Joey on the bed and sodomizing him. Joey remembered after this incident "being dropped off at home." Joey did not tell anyone what had happed because he did not "have the most supportive parents in the world."
A day or two later, Joey returned to appellant's house to collect his money. Appellant drove Joey to a Chuck E. Cheese restaurant. Nothing happened that day, but later appellant took Joey out to dinner and gave him a gift of "Colorado boots."
Eventually, Joey ended up running away from home and found himself in Arizona with appellant at the house of appellant's friend Tom. The first night there, appellant and Joey shared a bed. Joey awoke in the middle of the night when appellant began engaging in anal intercourse with him. The next day, Tom told Joey that he should return to his parents, but the conversation ended when appellant walked into the room.
A day later, Tom's wife drove Joey and appellant to the Mexican border. On the train to Mazatlan, Joey became ill. Appellant tried "something" sexual, but Joey did not have a clear memory of what it was.
After Mexico, Joey remembered being back in Scottsdale where appellant's truck was located. From there he and appellant went to Phoenix where appellant rented a motel for three or four weeks. Appellant continued to supply Joey with marijuana and sodomize Joey when he passed out. At one point Joey became "pretty fed up" and started to fight back. Appellant struck Joey and threw him against a door. Appellant threatened Joey that if he did not allow appellant to do what he wanted that appellant would beat Joey.
Appellant took Joey to Washington where Joey assumed a different name and attended school. Appellant continued to supply Joey with alcohol and Joey continued to smoke marijuana. Appellant sodomized Joey "on a daily basis." Eventually, Joey took appellant's truck and started driving until the police stopped him. Joey was reunited with his family in San Jose, but appellant returned and offered Joey a job painting foundations on houses. Again, appellant began to ply Joey with beer and marijuana and sodomize Joey after he had passed out. Joey's contact with appellant stopped when Joey moved to Sunnyvale.
Joey estimated that overall appellant sodomized him about 100 times. Joey remembered that appellant told him the attacks would stop if Joey ever delivered a blond blue-eyed boy to take his place. Joey once witnessed appellant molest another boy who had passed out.
Dale met appellant when Dale was 15 years old. Dale was a runaway living on the streets. Dale stayed in appellant's residence in San Jose. The first night Dale stayed with appellant, appellant tried to have anal sex with Dale, unsuccessfully. The following night appellant tried again and this time was successful. Dale did not tell appellant to stop. Rather, he told appellant that it "hurt like hell." Over a two-week period, appellant had anal sex with Dale "every other night."
Dale went with appellant to Portland, Oregon. While in Oregon at the house of appellant's father, appellant had anal sex with Dale. While staying at the house of appellant's mother, appellant had anal sex with Dale every other night. The sex continued every night while appellant and Dale lived in labor camps in Washington. Eventually, appellant and Dale settled on a farm in Washington for seven to eight months. While they were at the farm appellant had sex with Dale an average of four times a week. Ultimately, appellant took Dale to stay with Dale's aunt in Kentucky. The assaults stopped. However, Dale saw appellant associating with Dale's young cousins.
Bryan, who was born in 1960, played organized football in Idaho for the Optimus team of 12-year-old boys. Bryan identified appellant as his coach who at the time went by the name "Tim Lewis." Every Saturday, appellant would have the team get off the bus so that the team members could show appellant that they were wearing a jock strap. One night after Bryan attended a movie with appellant, Bryan spent the night at appellant's residence. Appellant told Bryan that he had to sleep with him. Bryan woke up to find appellant fondling Bryan's penis. Bryan testified that he began to pray. Bryan told his parents and eventually testified against appellant.
Jay was another member on the team that appellant coached. Jay witnessed appellant checking if the boys were wearing jock straps. Appellant befriended Jay's family and came to Jay's house frequently for dinner and to socialize. When Jay was 12 years old he was getting ready at appellant's house to attend a dance. Appellant told Jay to make sure the girls knew what kind of "package" he had. A few weeks later, while Jay was at appellant's house, appellant started to rub Jay's back. This progressed to fondling. Over the course of the next six or seven months appellant had anal intercourse with Jay eight or 10 times. Appellant had Jay orally copulate him dozens of times and made Jay touch him and masturbate him dozens of times. Sometimes appellant would stop when Jay told him to stop; other times he would not. Appellant threatened to take Jay's brother and run away if Jay resisted. Jay told his father about the assaults, but his father did not want him to testify.
Jason, who was born in 1976, lived in Portland, Oregon. Jason worked in an auto shop from the time he was 13 years old until he was 15 years old. When appellant was hired to plaster the exterior of the auto shop, Jason was assigned to assist him. Within a week of starting work, appellant invited Jason over to his residence. While Jason was at appellant's residence, appellant began "making advances" on Jason by rubbing Jason's leg and asking him if he had a girlfriend. Appellant's hand touched Jason's penis over his clothes, then eventually under Jason's clothes. Jason was very uncomfortable. Appellant told Jason to pretend that appellant was his girlfriend. Appellant grabbed Jason's hand and moved it onto appellant's penis under his clothes. On other occasions, appellant offered Jason beer and marijuana. Appellant touched Jason more than once. Appellant performed oral sex on Jason "several hundred times." In turn, Jason performed oral sex on appellant about the same number of times. Appellant threatened to kill Jason's parents if he ever reported the acts. According to Jason, appellant had a handgun and an "ugly stick."
Eventually, appellant started a plastering business with Jason and another boy Travis. The relationship ended when Jason was about 15 years old when the police intervened. Ultimately, Jason testified in court against appellant.
It appears that appellant pleaded no contest to molestation charges in Oregon.
The jury heard from Carl Lewis, the District Attorney's investigator, about Child Sexual Abuse Accommodation Syndrome. Specifically, Lewis testified that boys are often reluctant to disclose sexual abuse.
The Defense Case
Appellant called as witnesses several of M.'s and R.'s family members who testified variously that they had been to appellant's home in San Jose; had stayed overnight and they did not witness anything inappropriate; and appellant did not touch them in a bad way.
The parties played taped interviews of M. and R. conducted by the police. At the urging of appellant and by stipulation the parties agreed that the entire 456-page manuscript would be admitted into evidence.
Appellant testified in his own defense that he did not molest M. or R. He conceded that he authored the manuscript to comment on the United States justice system with respect to the enforcement of child molestation laws. Appellant knew molesters of prepubescent children so he described the experiences of these people recounted to him in his manuscript. Appellant maintained that the sex acts described in the manuscript were fiction and based on the police reports that he had read. Appellant read one portion of the manuscript to the jury. The passage was entitled, "Society, the pederast and postpubescent male." In the passage, appellant argued, "Nonviolent men who have consensual sex acts with postpubescent male adolescents hurt no one."
Appellant testified that he had been persecuted by the criminal justice system his entire life. In Alaska in the 1970's he was arrested for simply giving a 16-year-old boy a ride home. Eventually, the charges were dismissed. Appellant denied committing sex acts with Mike. Appellant told Dale that he was a gay man and ultimately he cared for Dale for a year and a half. Dale consented to have sex with appellant in exchange for financial support. Appellant put Dale through school and gave him a purpose. Eventually, appellant drove Dale home to Kentucky.
After Dale, in 1972, appellant traveled back to Alaska and was charged with committing sex acts on a 14-year-old boy. Nothing came of the charges. Appellant traveled to Idaho to start over using an alias. Several people begged appellant to coach a team of 12-year-olds. However, someone found out appellant's real name and he was arrested again for having sex with a 14-year-old. Appellant posted bail and left for Brazil. While appellant was in Brazil, FBI agents escorted him back to the United States to face charges made by the football team members. Appellant maintained that at the preliminary hearing in that case, Bryan committed perjury. Appellant denied any sex acts with Bryan or Jay in Idaho. Appellant testified that in 1978, the Idaho Supreme Court reversed his convictions.
After Idaho, appellant traveled to San Jose. He met and took in Joey after Joey described being beaten at home. Appellant traveled with Joey to Arizona, Mexico and Washington. Appellant denied having sex with Joey. Appellant testified that he honored Joey's refusals to have sex with him. In Oregon, appellant was arrested for transporting a minor across state lines. Appellant testified that somehow he ended up in San Francisco, after which he faced charges in Idaho. However, the Ninth Circuit Court of Appeals eventually reversed the subsequent convictions.
Appellant presented evidence that during part of the time when the molestations were alleged to have occurred he spent eight weeks out of town on a job for Ralph Hurtado building him a vacation home. Appellant testified that during the time he was building the home, he would take J. to help him and some older boys, C. and F.
Appellant testified that in October 2004, he fought with Fred Everts and during the confrontation Everts "broke" appellant's spine. Appellant was confined to his bed for eight weeks. During the time appellant was convalescing, the boys who visited attended to his needs such as getting him food and emptying his urine bottle. Appellant maintained that he never operated a digital camera and did not know much about computers. He did not know how to burn a CD, nor did he know how to use the Internet.
By stipulation, the parties informed the jury that Fred Everts was convicted of six counts of committing lewd and lascivious acts on R. (Pen. Code, § 288, subd. (a)) and one count of inducing R to pose. (Pen. Code, § 311.4)
On cross-examination, appellant admitted that the sex acts with Dale were illegal because Dale was only 16 years old. Appellant admitted that he pleaded no contest to molesting Jason in Oregon. Appellant conceded that he told various people that Fred Everts was his son. Further, appellant admitted that he called M. and told him to destroy papers and have M.'s brother drive the 4runner away. Appellant maintained that it was Fred Everts that put the child pornography into the binders, which Everts stored in appellant's closet. Appellant stated that he loved M. and was closer to him than R. As with the manuscript, the notebooks contained fiction.
Appellant recalled R. to the stand and attempted to establish that because Fred Everts had molested R., that R. was mistaken about appellant molesting him. However, R. maintained that he was capable of telling the difference between appellant and Everts. Everts had distinctively longer hair than appellant; appellant had short white hair.
Rebuttal
Detective Dillon testified that the photographs found in the binders taken from appellant's closet had names that were referenced in appellant's manuscript. One nude photograph of M. showed an eye that was not Everts. Later, the prosecutor argued that the eye belonged to appellant.
Discussion
I. CALCRIM No. 220
Appellant's challenge to CALCRIM No. 220 is best summed up in appellant's own words as follows; "the formulation and emphases in the CALCRIM instruction improperly convey the impression that proof beyond a reasonable doubt is merely a very high degree of objective probability, and that 'abiding conviction' is more a temporal matter than a matter of intensity of feeling." As such, appellant contends that CALCRIM No. 220 is "deficient under the Due Process Clause of the Fourteenth Amendment in that they [sic] convey to the jurors a definition of proof beyond a reasonable doubt that is diluted and creates a reasonable probability that the strictures of [In re] Winship [(1970) 397 U.S. 358] were violated in this case. . . . Such an error is structural, and requires reversal of the ensuing conviction without regard to prejudice or harmless error. . . ."
The Attorney General points out that appellant did not object to CALCRIM No. 220 during discussions on jury instructions, nor did appellant object when the trial court instructed the jury in the language of CALCRIM No. 220. Accordingly, the Attorney General argues that appellant has "waived" this claim of instructional error on appeal.
" 'No procedural principle is more familiar to this Court than that a constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' [Citation.]" (U.S. v. Olano (1993) 507 U.S. 725, 731 [113 S.Ct. 1770]; People v. Collins (2001) 26 Cal.4th 297, 305 fn. 2; People v. Saunders (1993) 5 Cal.4th 580, 590.) In Peretz v. United States (1991) 501 U.S. 923, 936-937 [111 S.Ct. 2661], the United States Supreme Court reiterated that even a fundamental right may be forfeited. Even when framed as a due process claim, a claim may be forfeited by a failure to object. (People v. Geier (2007) 41 Cal.4th 555, 610-611.)
Nevertheless, the general rule is settled that even in the absence of an objection the accused has a right to appellate review of any instruction that affects his or her substantial rights. (Pen. Code, § 1259; People v. Brown (2003) 31 Cal.4th 518, 539, fn. 7.) "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim-at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Appellant's position is that the challenged instruction, as given, was not correct in law. Thus, appellant did not have to raise his argument at trial. For reasons that follow, we review appellant's claim on the merits.
Penal Code section 1259 provides, "Upon an appeal taken by the defendant, the appellate court may, without exception having been taken in the trial court, review any question of law involved in any ruling, order, instruction, or thing whatsoever said or done at the trial or prior to or after judgment, which thing was said or done after objection made in and considered by the lower court, and which affected the substantial rights of the defendant. The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby."
"The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence-that bedrock 'axiomatic and elementary' principle whose 'enforcement lies at the foundation of the administration of our criminal law.' [Citation.]" (In re Winship, supra, 397 U.S. at p. 363.) Thus, due process "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he [or she] is charged." (Id. at p. 364.)
Since, in essence, appellant's argument is that he was convicted under a standard of reasonable doubt that was "diluted," if true, his substantial rights were affected. Here, nothing less fundamental is at stake than the denial of appellant's due process protection "against conviction except upon proof beyond a reasonable doubt." (In re Winship, supra, 397 U.S. at pp. 362-364.) Accordingly, we reject the Attorney General's forfeiture argument.
The record shows that the trial court instructed the jury pursuant to CALCRIM No. 220 as follows: "The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt, unless I specifically tell you otherwise. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything [in life] is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty."
Appellant compares CALCRIM No. 220 to Penal Code section 1096, which provides the definition of the concept of reasonable doubt and argues that although the phrases used are similar and leave an impression of substantive similarity, CALCRIM No. 220 "obfuscates" "the scope properly given to the jurors' individual subjectivity in the reasonable doubt standard, the creation or aggravation of an ambiguity contained in the phrase 'abiding conviction' and finally a failure to convey the appropriate impression that proof beyond a reasonable doubt requires on the part of the jurors a subjective certitude of the truth of the charge."
Penal Code section 1096 provides, "A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or her guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: 'It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.' "
" '[T]he essential connection to a "beyond a reasonable doubt" factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury's findings.' [Citation.] Where such an error exists, it is considered structural and thus is not subject to harmless error review. [Citation.] However, if a jury instruction is deemed 'ambiguous,' it will violate due process only when a reasonable likelihood exists that the jury has applied the challenged instruction in a manner that violates the Constitution. [Citation.] Any challenged instruction must be considered in light of the full set of jury instructions and the trial record as a whole. [Citation.]" (Gibson v. Ortiz (9th Cir.2004) 387 F.3d 812, 820-821; see also People v. Smithey (1999) 20 Cal.4th 936, 963.)
Preliminarily, we observe that the California Supreme Court and the Courts of Appeal in every appellate district have rejected challenges to the language used in CALJIC No. 2.90, CALCRIM No. 220's predecessor. (People v. Campos (2007) 156 Cal.App.4th 1228, 1239.) In general, all these cases concluded that the contents of the reasonable doubt instruction did not violate due process or lessen the burden of proof below that of finding guilt beyond a reasonable doubt. (See, e.g., People v. Flores (2007) 153 Cal.App.4th 1088; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510; People v. Hernández Ríos (2007) 151 Cal.App.4th 1154, 1156-1157.)
Furthermore, we note that this court in People v. Garelick (2008) 161 Cal.App.4th 1107 rejected a challenge to the language of CALCRIM No. 220. We wrote "The definition of 'reasonable doubt' in CALCRIM No. 220 is derived from section 1096 which, when given, requires 'no further instruction . . . defining reasonable doubt . . . .' (§ 1096a.) The California Supreme Court has rejected similar challenges to the 'abiding conviction' language as used in CALJIC No. 2.90, the predecessor to CALCRIM No. 220. (People v. Cook (2006) 39 Cal.4th 566, 601 . . .; see also People v. Freeman (1994) 8 Cal.4th 450, 501-505 . . . [proper to use 'abiding conviction' to define 'beyond a reasonable doubt'].) The Courts of Appeal in every appellate district, including this one, have consistently rejected challenges to the definition of 'reasonable doubt' set forth in section 1096, and as embodied (formerly) in CALJIC No. 2.90 and (now) in CALCRIM No. 220. (See People v. Hearon (1999) 72 Cal.App.4th 1285, 1286-1287 . . . [listing decisions from each appellate district rejecting challenges to reasonable doubt definition].) As the court in Hearon noted, '[t]he time has come for appellate attorneys to take this frivolous contention off their menus.' (Id. at p. 1287.)" (Garelick, supra, 161 Cal.App.4th at p. 1119.)
Nevertheless, appellant argues that CALCRIM No. 220 dilutes proof beyond a reasonable doubt in failing to convey the "subjective dimension" of that concept. He argues that the concept is conveyed "admirably" in the formulation of Penal Code section 1096, which as noted, defines reasonable doubt as that state of the case, "which after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge." Appellant contends that this subjective dimension is not conveyed at all in CALCRIM No. 220's "weak and diluted definition of proof beyond a reasonable doubt as 'proof that leaves you with an abiding conviction that the charge is true.' "
In order to address appellant's contention it is necessary to briefly review the law governing the reasonable doubt standard and the development of the instructions thereon.
Originally enacted in 1872 and amended in 1927 and 1995, Penal Code section 1096 provides the state's definition for reasonable doubt. (See Historical and Statutory Notes, 50B West's Ann. Pen.Code (2004 ed.) foll. § 1096, p. 287.) The origin of Penal Code section 1096 stems from an explanation given by Chief Justice Shaw of the Massachusetts Supreme Judicial Court more than a century ago in Commonwealth v. Webster (1850) 59 Mass. (5 Cush.) 295 (Webster), wherein reasonable doubt is defined as: " 'It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.' " (People v. Freeman (1994) 8 Cal.4th 450, 501, fn. 8.) In People v. Strong (1866) 30 Cal. 151, 155, the California Supreme Court characterized the Webster instruction as "probably the most satisfactory definition ever given to the words 'reasonable doubt' in any case known to criminal jurisprudence."
Subsequently, in 1927 the state Legislature adopted the bulk of the Webster instruction as a statutory definition of reasonable doubt in Penal Code section 1096. (People v. Freeman, supra, 8 Cal.4th at p. 501, fn. 8; Historical and Statutory Notes, 50B West's Ann. Pen.Code (2004 ed.) foll. § 1096, p. 287.) Simultaneously, the Legislature enacted Penal Code section 1096a, which states: "In charging a jury, the court may read to the jury Section 1096, and no further instruction on the subject of the presumption of innocence or defining reasonable doubt need be given." (Pen. Code, § 1096a.)
Thereafter, using Penal Code section 1096 as its foundation, the Los Angeles Superior Court Committee on California Criminal Jury Instructions prepared CALJIC No. 2.90. As noted, in People v. Hearon, supra, 72 Cal.App.4th 1285, 1286-1287, challenges to the definition of reasonable doubt, as set forth in CALJIC 2.90, have been "rejected by every appellate district," as well as by the United States Court of Appeals, Ninth Circuit, in Lisenbee v. Henry (9th Cir.1999) 166 F.3d 997, 999-1000, and its constitutionality has been conclusively settled.
CALJIC No. 2.90 received this constitutional approval from the United States Supreme Court in Victor v. Nebraska (1994) 511 U.S. 1, 14-15 (114 S.Ct. 1239), when the court sustained the then language of CALJIC No. 2.90. In Victor,however, the United States Supreme Court criticized as archaic the instruction's use of the phrase "moral certainty."
Prior to 1994 the second paragraph of CALJIC No. 2.90 stated: "Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge."
The Victor court wrote, "We do not think it reasonably likely that the jury understood the words 'moral certainty' either as suggesting a standard of proof lower than due process requires or as allowing conviction on factors other than the government's proof. At the same time, however, we do not condone the use of the phrase. As modern dictionary definitions of moral certainty attest, the common meaning of the phrase has changed since it was used in the Webster instruction, and it may continue to do so to the point that it conflicts with the Winship standard. Indeed, the definitions of reasonable doubt most widely used in the federal courts do not contain any reference to moral certainty." (Victor, supra, 511 U.S. at pp. 16-17) Nevertheless, the court in Victor stated: "Although in this respect moral certainty is ambiguous in the abstract, the rest of the instruction . . . lends content to the phrase. The jurors were told that they must have 'an abiding conviction, to a moral certainty, of the truth of the charge.'. . . An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government's burden of proof. [Citations.]" (Id. at pp. 14-15, italics added.)
After Victor was decided, the California Supreme Court in People v. Freeman, supra, 8 Cal.4th 450, recommended the use of a reasonable doubt instruction that deleted the phrases "and depending on moral evidence" and "to a moral certainty." The Freeman instruction thus defined reasonable doubt as follows: " 'It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.' " (People v. Freeman, supra, 8 Cal.4th at p. 504, fn. 9.)
Thereafter, the second paragraph of CALJIC No. 2.90 was revised in 1994 in accordance with the California Supreme Court's suggestion in Freeman: "Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge."
As noted, thereafter, many published opinions addressed and rejected the argument that the post-Freeman version of CALJIC No. 2.90 deprived a defendant of due process of law. (See People v. Miller (1999) 69 Cal.App.4th 190, 213-214; People v. Craig (1998) 65 Cal.App.4th 1082, 1093; People v. Gonzalez (1998) 64 Cal.App.4th 432, 451; People v. Cochran (1998) 62 Cal.App.4th 826, 833; People v. Haynes (1998) 61 Cal.App.4th 1282, 1298-1300; People v. Aguilar (1997) 58 Cal.App.4th 1196, 1207-1209; People v. Sanchez (1997) 58 Cal.App.4th 1435, 1451; People v. Godwin (1996) 50 Cal.App.4th 1562, 1571-1572; People v. Barillas (1996) 49 Cal.App.4th 1012, 1022; People v. Carroll (1996) 47 Cal.App.4th 892, 895-896; People v. Hurtado (1996) 47 Cal.App.4th 805, 815-816; People v. Tran (1996) 47 Cal.App.4th 253, 262-263; People v. Torres (1996) 43 Cal.App.4th 1073, 1077-1078.)
In 2006, the California Judicial Council adopted the " 'Judicial Council of California Criminal Jury Instructions (2006-2007),' " which are cited as " 'CALCRIM No. ____.' " (People v. Anderson (2007) 152 Cal.App.4th 919, 924.) With the adoption of CALCRIM No. 220, California re-embraced some of the subjectivity language lost with the elimination of "moral certainty" from CALJIC No. 2.90 in 1995. (Stoltie v. California (C.D.Cal.2007) 501 F.Supp.2d 1252, 1260-1261 (Stoltie).) According to the Stoltie court, "[t]he 'abiding conviction' language in the California instruction comes closer in definition to the concept of subjective certainty, but the antiquated wording likely leaves jurors confused." (Id. at p. 1262.) We are not bound, however, by the decisions of lower federal courts like the Central District of California in Stoltie. (People v. Avena (1996) 13 Cal.4th 394, 431.) Thus, although we agree with the Stoltie court that "abiding conviction" does provide the concept of subjective certainty, we disagree that the wording is antiquated and confuses jurors. California courts have agreed that "abiding conviction" has been "found to adequately convey the requirement that the jurors' belief in the truth of the charge must be both long lasting and deeply felt." (People v. Light (1996) 44 Cal.App.4th 879, 885.)
Although the new CALCRIM instructions are largely based on the CALJIC instructions, there have been various challenges to the new material in the CALCRIM instructions. "Most of the challenges [to the CALCRIM instructions] involve isolated language that defendant reads out of context from the instruction as a whole or the other instructions given to the jury. Other challenges concern language virtually identical to that previously approved in the CALJIC instructions that were used in California for many years." (People v. Anderson, supra, 152 Cal.App.4th at p. 924.)
With regard to CALCRIM No. 220, "The definition of reasonable doubt in CALCRIM No. 220 is derived from CALJIC No. 2.90 which in turn was taken directly from the language of section 1096 . . . ." (People v. Campos, supra, 156 Cal.App.4th 1228, 1239 (Campos).) The Campos court went on to say that since CALCRIM No. 220 is derived from previously constitutionally approved language, then it did not make sense to make an argument that CALCRIM No. 220 was unconstitutional. The Campos court wrote; "we caution the bar that adoption of the Judicial Council of California Criminal Jury Instructions is not an excuse for advocates to dust off the old, hackneyed arguments that were thoroughly discredited under similarly worded CALJIC instructions and recycle them before this court." (Ibid.)
Nevertheless, appellant argues in essence, that the term "abiding conviction" depends on the context in which it is placed and the Victor court did not validate all reasonable doubt instructions containing the term. Appellant notes that abiding conviction, as defined in Hopt v. Utah (1887) 120 U.S. 430, 439 (7 S.Ct. 614), tells jurors they must have "an abiding conviction of the defendant's guilt, such as you would be willing to act upon in the more weighty and important matters relating to your own affairs . . . ." Thus, because of the simile, appellant asserts the term "abiding conviction" as defined in Hopt v. Utah gave jurors the proper guidance and insight to the heavy burden that is reasonable doubt, but the term, used without explanation in CALCRIM No. 220, does not.
We reject appellant's argument that CALCRIM No. 220 does not accurately reflect the statutory definition of reasonable doubt. As required by Victor, supra, 511 U.S. at page 5, the trial court did instruct the jury on reasonable doubt. This instruction made no reference to "a moral certainty," which was criticized by the Victor court and acknowledged by California in its changes to CALJIC No. 2.90 and subsequent creation of CALCRIM No. 220. (Victor, supra,511 U.S. at pp. 14-15.) In addition, as noted, "abiding conviction" has been repeatedly found to adequately convey to jurors the subjective requirement that their belief in the truth of the charged offense must be long lasting and deeply felt. (People v. Light, supra, 44 Cal.App.4th at p. 885.) Finally, the California Supreme Court has rejected challenges to the "abiding conviction" language used in CALCRIM No. 220's predecessor, CALJIC No. 2.90. (People v. Cook (2006) 39 Cal.4th 566, 601.)
Nonetheless, appellant argues the phrase "abiding conviction" does nothing to distinguish reasonable doubt from other lesser standards of proof. Appellant contends that "subjective certitude" is what distinguishes proof beyond a reasonable doubt from lesser standards of proof such as clear and convincing evidence.
In re Winship, supra, 397 U.S. at page 364 instructs, "the reasonable-doubt standard is indispensable, for it 'impresses on the trier of fact the necessity of reaching a subjective state of certitude on the facts in issue.' " (Italics added.)
We reiterate that the term "abiding conviction" in the reasonable doubt instruction "convey[s] the requirement that the jurors' belief in the truth of the charge must be both long lasting and deeply felt." (People v. Light, supra, 44 Cal.App.4th at p. 885.)
As this court understands it, the crux of appellant's argument is that the former CALJIC language "feels an abiding conviction" conveys the correct sense of abiding conviction, but CALCRIM's language "leaves an abiding conviction" does not. We disagree with appellant. Notwithstanding appellant's exercise in semantics, a comparison of the two definitions yields no significant difference between them. The commentary to CALCRIM No. 220 states in pertinent part, "This instruction is based directly on Penal Code section 1096. The primary changes are a reordering of concepts and a definition of reasonable doubt stated in the affirmative rather than in the negative. . . . The instruction includes all the concepts contained in section 1096 and substantially tracks the statutory language." (Com. to CALCRIM No. 220, Judicial Council of California Criminal Jury Instructions (2008) (Apr.2008 rev.), p. 44, italics added.) We find nothing in appellant's argument that would make us disagree with that evaluation.
II. Propensity Evidence and Third Party Culpability
Appellant asserts that the bar against propensity evidence for third-party suspects violates due process in a sexual assault case in which the defense has satisfied the threshold requirement of relevance for a third-party-culpability defense and in which the prosecution is allowed to introduce propensity evidence against a defendant.
Appellant contends that through the testimony of trial witnesses and the manuscript and notebooks seized in this case the prosecution relied heavily on evidence of his propensity to commit child molestation. In fact, appellant avers that the evidence admitted at trial was so extensive that the prosecutor was able to characterize him "not merely as a man with a propensity to molest children, but a man whose fixed disposition and character rendered him a child molester." According to appellant, although he contested much of the propensity evidence at trial, he conceded at trial that he liked and engaged in consensual sex with post-pubescent teenage boys.
Appellant argues that an important and substantial element of his defense was the third-party culpability of Fred Everts. Appellant maintains that evidence was presented that Everts sexually molested R.; Everts took nude photographs of R.; pornographic photographs of R. and M. were on Everts's server; and Everts's fingerprints were on some of the CDs recovered from his house, and on the binders containing child pornography recovered from the master bedroom.
Appellant contends that if this evidence legitimately raised the issue of third-party culpability in this case, it was not raised "clearly or completely" as it should have been. Appellant points out that the prosecution was allowed to present a parade of witnesses and other evidence pursuant to Evidence Code section 1108 of uncharged acts to establish his propensity to molest children. However, he was repeatedly, and he concedes correctly, admonished that he could not take advantage of the same provision to present propensity evidence against Everts in support of his defense of third-party culpability. Accordingly, appellant asserts that the lack of a provision in Evidence Code section 1108 for the defensive use of propensity evidence to support a defense of third-party culpability constitutes a violation of federal due process in this imbalance between the defense and the prosecution.
The Attorney General points out that the record demonstrates that this federal due process argument advanced on appeal is forfeited for appellant's failure to present the trial court with a like constitutional basis for the admission of the evidence.
As the California Supreme Court noted in People v. Sanders (1995) 11 Cal.4th 475, a federal constitutional claim is forfeited on appeal if not raised as a basis for admission of evidence below. (Id. at p. 510, fn. 3.)
Appellant agrees that he failed to preserve this issue for appeal. Further, if he had not represented himself he would now bring a claim of ineffective assistance of counsel. Appellant urges that because this is a constitutional question based on undisputed facts this court has discretion to address the issue despite the technical default.
Although we have discretion to reach the merits of appellant's constitutional claim (People v. Marchand (2002) 98 Cal.App.4th 1056, 1061), we decline to exercise our discretion here because it is settled that character evidence is not admissible to support a claim of third-party culpability. (People v. Davis (1995) 10 Cal.4th 463, 501; Evid. Code, § 1101, subd. (a).)
III. The Trial Court's Refusal to Allow Appellant to Testify to the Reason for His Back Injury
Appellant contends that the trial court's refusal to allow him to testify to the reason for his altercation with Everts was an abuse of discretion that denied him the right "to a meaningful opportunity to present a defense."
Background
During his opening statement, appellant told the jury that during part of the time that the alleged molestations were supposed to have occurred he was "flat" on his back in bed with a broken back. He explained that he sustained the broken back when he found out that his roommate, Everts, was molesting R. and told Everts to leave the house.
In part, appellant's defense was that he had a broken back that incapacitated him for several weeks during the period of time that the molestations were alleged to have occurred.
Appellant presented evidence that during some of the time the molestations were alleged to have occurred, he started a major remodeling project on a house in the Sierras. He worked 10-hour days for eight weeks on the project. However, a back injury kept him from finishing the project before Christmas. Appellant explained, "My loving roommate came into the kitchen while I was gathering ice out of the refrigerator and came up behind me and pushed me down and pushed me into the stove and down onto the floor and broke my back."
Out of the presence of the jury, the trial court summarized a sidebar conference during which the prosecutor asked what evidence appellant intended to introduce concerning his back injury. According to the trial judge, appellant stated that it was "his intention to testify why his back was broken and said words to the effect that he would say that Mr. Everts broke his back because Mr. Schwartzmiller had found out that Mr. Everts was molesting one of the victims . . . ."
The trial court ruled the evidence was irrelevant. The court explained, "I thought the relevance of the back injury had to do with physical incapacity both at the time you were confined to the bed, indicating that you could not have done that which the boys say you have done, and also as it interacts with the alibi concerning your ability to plaster and when you were up and when you weren't plastering that big house. To the extent I'm right on that, why your back was broken doesn't seem very helpful to the alibi or the physical incapacity elements; that was why I ruled as I did."
Appellant contends that the refusal to admit his testimony as to why his back was broken was an abuse of discretion.
"Although a criminal defendant is constitutionally entitled to present all relevant evidence of significant probative value in his favor, this does not mean the court must allow an unlimited inquiry into collateral matters; the proffered evidence must have more than slight relevancy. [Citations.]" (People v. Marshall (1996) 13 Cal.4th 799, 836.)
We review the trial court's rulings on the admission and exclusion of testimony for abuse of discretion. (People v. Harrison (2005) 35 Cal.4th 208, 230; People v. Kipp (2001) 26 Cal.4th 1100, 1123.) The trial court's discretion is as " 'broad as necessary . . . .' " (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1532.) " '[I]n most instances the appellate courts will uphold its exercise whether the [evidence] is admitted or excluded.' " (Ibid.) " 'A trial court's exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice.' " (Id. at p. 1533.) " '[W]hen the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion.' " (Ibid.) Abuse occurs when the trial court "exceeds the bounds of reason, all of the circumstances being considered." (People v. Giminez (1975) 14 Cal.3d 68, 72.) We find no abuse here.
Appellant argues that the evidence was relevant because it "was conduct consistent with the defense theory of the case and inconsistent with that of the prosecution." Initially, we must note that we are at a loss as to what appellant means by this statement. The prosecution's theory in this case was simply that appellant had used his position as employer of R.'s father to get to know R.'s family and then M.'s family; that appellant then molested M. and R.; that Everts had also molested R.; and appellant took and possessed pornographic photographs of M. Appellant's defense was that he did not molest the boys, someone else was doing that; he did not possess the pornography, someone else did; and for a portion of the time he was supposed to have molested the boys he was flat on his back. We have to question how testimony that Everts broke appellant's back in an altercation over appellant finding out Everts was molesting R. is conduct that was inconsistent with the prosecution's theory of the case or consistent with the defense theory of the case.
Even if this court gives appellant's argument the most expansive reading possible and assumes that what he really meant was he wanted to testify that Everts broke his back when he told Everts to leave the house after he found out that Everts had molested R., we would still not find that the evidence was relevant.
Appellant cites to two cases, People v. Guerra (2006) 37 Cal.4th 1067 (Guerra) and People v. Tauber (1996) 49 Cal.App.4th 518 (Tauber), and to Evidence Code section 780, subdivision (i), for the proposition that conduct by the defendant "cannot but be legally relevant."
In Guerra, the defendant was convicted of first degree murder of Kathleen Powell and the jury found true the special-circumstance allegation that the defendant murdered Powell while engaged in the attempted commission of rape. (Guerra, supra, 37 Cal.4th at p. 1078.) During trial Guerra testified that he "did not remember washing any blood off of himself after finding Powell's body," but he admitted that he must have done so in the pool at the house under construction. The prosecutor repeatedly questioned Guerra's memory in this area and finally asked him if he was afraid to admit to the jury that he washed the blood off of himself. The trial court overruled counsel's objection that the question was argumentative. (Id. at p. 1128.)
On appeal, Guerra contended that the prosecutor engaged in misconduct because the question was argumentative and suggested he was trying to hide something even though he admitted he must have washed any blood off. The California Supreme Court concluded no misconduct occurred. The court held that the evidence of Guerra's specific conduct was relevant and admissible on the issue of his credibility. (Guerra, supra, 37 Cal.4th at p. 1128.)
In Tauber, the defendant was convicted of stalking and of 11 counts of disobeying a protective court order. (Tauber, supra, 49 Cal.App.4th at p. 520.) During trial, the prosecution was allowed, over objection, to impeach three witnesses by asking them on cross-examination why, if they were aware of facts that tended to demonstrate Tauber's innocence, they had not made these facts known to the police or the prosecution before trial. (Id. at p. 522.)
On appeal, Tauber contended that it was error to allow such impeachment since the prosecution failed to lay a foundation for the evidence as required by People v. Ratliff (1987) 189 Cal.App.3d 696. The Fourth District Court appeal concluded that the evidence was properly admitted. (Tauber, supra, 49 Cal.App.4th at p. 526.) In so doing, the Tauber court explained, "Applying . . . concepts of relevance and admissibility to impeachment with evidence of pretrial silence, it is our view such evidence becomes relevant when the witness was aware before trial of information that he understood tended to exculpate one who had been charged with a crime. If there is substantial evidence such that a trier of fact could so find, then the failure to report the information before trial is relevant and admissible subject to a prejudice evaluation pursuant to Evidence Code section 352." (Ibid.)
We fail to see how either of these cases supports appellant's argument that any conduct by a defendant "cannot but be legally relevant."
With respect to Evidence Code section 780, subdivision (i), which states, "Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: . . . [¶] (i) The existence or nonexistence of any fact testified to by him," appellant has once again ignored the fact that the evidence has to be relevant.
It appears to this court that appellant misunderstands the concept of admissibility of evidence.
Evidence Code section 350 provides that no evidence except relevant evidence is admissible in an action. Under Evidence Code section 350, the trial judge has no discretion to admit irrelevant evidence. If evidence is irrelevant, the trial court must exclude it. (People v. Slone (1978) 76 Cal.App.3d 611, 631.)
"Except as otherwise provided by statute, all relevant evidence is admissible." (Evid.Code, § 351.) Relevant evidence is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid.Code, § 210.)
The evidence that appellant argues should have been admitted in no way proves or disproves a disputed fact. The ultimate disputed facts in this case were whether appellant committed lewd and lascivious acts with M. and R. The reason that Everts attacked appellant, even if true, proves only that appellant was aware that Everts was also molesting R. It does not have any tendency in reason to prove that appellant did not molest M. and R. or disprove that he did molest M. and R., or that he took pornographic photographs of M. and possessed pornographic photographs of M. The evidence that appellant wanted admitted was simply irrelevant. Accordingly, we cannot say that the trial court abused its discretion in denying the admission of this evidence.
IV. Due Process Challenge to the "Other Crimes Evidence"
Appellant contends that the evidence presented by Detective Dillon under Evidence Code section 1108 was so grossly unfair and prejudicial that it rises to the level of a due process violation.
The prosecutor moved in limine to introduce evidence of appellant's "other crimes" pursuant to Evidence Code section 1108 (the 1108 evidence). Specifically, the prosecutor wanted to bring in Jason, Joey, Bryan, Dale, and Mike, to testify regarding being molested by appellant. Further, the prosecutor sought to introduce limited samplings from appellant's notebooks and manuscript; the certified records of appellant's two prior convictions; and the records from a Washington state case that resulted in appellant being acquitted of all charges. There was no mention in the prosecutor's motion of testimony regarding the manuscript and notebooks from Detective Dillon.
Appellant filed a motion to exclude the prosecution's 1108 evidence. Appellant objected on Evidence Code section 352 grounds and due process/fair trial grounds.
At the hearing on the prosecutor's motion, the court noted that it had read and considered the prosecutor's pleadings and supporting attachments, appellant's opposition to the 1108 evidence and had researched the law.
Following extensive argument by both the prosecutor and appellant, where appellant lodged objections to the evidence on relevancy grounds and argued that it was inadmissible, the trial court noted that 1108 evidence was admissible subject to an Evidence Code section 352 review. Accordingly, the court stated, "the threshold question is whether the proffered evidence of uncharged sexual offenses lays out what a reasonable juror might infer to be a propensity to commit the charged crimes. If that is so, it is presumptively admissible subject to Evidence Code Section 352." The court continued, "Looking at the proffers of testimony from the six witnesses -- Jason E., Joey R., Bryan C., Jay B., Dale S., and Mike D. -- I don't think there's much question that, if that information is believed, [it] might well provide information to a reasonable trier of fact that would allow them to make some sort of inference concerning Mr. Schwartzmiller's propensity to commit the charged crimes." The court went on to note that according to the prosecution's proffer, all the boys were between 12 and 15 years old when they were molested. Thus, according to the court, "it’s a given that an abnormal sexual interest in males in the 12-to-15-year-old range is not something shared by the general population and may provide, accordingly, a characteristic that would allow jurors to make an inference regarding propensity."
During the in limine hearing, the prosecutor stated that he would be calling Detective Dillon to explain that he had reviewed most or all of the manuscript. The prosecutor explained to the court that he would be asking Detective Dillon to testify that he had cross-referenced the manuscript with the notebook and found corresponding letters and numbers.
As a result, the court ruled that it would permit the proffered testimony subject to an Evidence Code 352 analysis. Regarding appellant's notebooks, manuscript and court documents of appellant's prior convictions and acquittals, the court found that a representative sampling of the notebooks and a sampling of the manuscript are, "in part, corroborative directly of the evidence concerning the named 1108 witnesses, as are some or all of the proffered court documents concerning various convictions and acquittals that the defendant allegedly has suffered up to this point in his life. [¶] Accordingly, since they . . . provide their own separate evidence of uncharged sexual offenses from which a juror might make a reasonable inference concerning propensity, they are also admissible subject to the 352 analysis."
The court then conducted a 352 analysis using the factors recommended by the California Supreme Court in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta). The court concluded, after carefully weighing these and other factors, that the evidence was more probative than prejudicial and allowed the prosecution to present the proffered evidence in their case in chief if they decided so to do.
When deciding to admit or exclude every sex offense a defendant has commit, "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." (Falsetta, supra, 21 Cal.4th 903, 917.)
The prosecutor's opening statement portrayed appellant as a child molester who had "molested over 100 young boys over the course of five decades" including the victims in the current case from 2002 to 2005. The prosecutor went on to tell the jury that appellant had molested young boys in the "1960s. 1970s. 1980s. 1990's. 2000-2005. Alaska. Washington. Oregon. California. Idaho. Nevada. Arizona. Kentucky. Mexico. Brazil. Those are the places and decades where the defendant has molested young boys." The prosecutor told the jury that they would "hear from some of the defendant's prior victims" and the "victims in this case, M. Doe and R. Doe." In addition, the prosecutor told the jury that they would hear about appellant's "manuscript," his "notebooks" and "the child pornography he had of M. Doe, the child pornography he had of other boys, and his prior convictions for sex offenses."
Later, Detective Dillon testified that he had reviewed appellant's manuscript; that the manuscript indicated that appellant molested boys in "eight states which includes Alaska, Washington, Oregon, California, Nevada, Arizona, Idaho, and Kentucky. And then there was Mexico and Brazil." Detective Dillon testified that the earliest molestation occurred in the 1960's when appellant was 20 years old. Further, the manuscript made mention of molestations in the seventies, eighties and nineties. Detective Dillon estimated that the manuscript mentioned approximately 105 victims that appellant admitted he molested. With respect to appellant's notebooks, Detective Dillon testified that by his estimation the notebooks mentioned about 250, "maybe as high as 300" children under 18 listed in the notebook as having been molested.
We characterize this evidence as the "generic 1108 evidence."
Appellant argues, "The generic numbers and their geographic extent were not part" of the pretrial ruling on the admissibility of the section 1108 evidence. Further, "the admission of this evidence, which was grossly unfair, and which could not under any reasonable view, survive analysis under section 352, constituted a denial of due process."
Initially, we point out that we are unsure if this issue is properly considered one of prosecutorial misconduct, the admission of inadmissible evidence, or the admission of admissible evidence that is more prejudicial than probative.
" 'Although it is misconduct for a prosecutor intentionally to elicit inadmissible testimony [citation], merely eliciting evidence is not misconduct. . . .' [Citation.]" (People v. Chatman (2006) 38 Cal.4th 344, 379-380.)
"As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety." (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
Similarly, Evidence Code section 353 states, "A 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 unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice."
Appellant concedes that he did not object to the prosecutor's opening statement, nor did he object to Detective Dillon's testimony. Appellant argues, however, citing People v. Chatman, supra, 38 Cal.4th 344, 380, an objection would have been futile because the evidence was "so provocative or inflammatory that even admonished jurors cannot ignore and disregard the improper matter." Furthermore, citing People v. Carreon (1984) 151 Cal.App.3d. 559, 581 (Carreon), appellant contends that the "failure to object to the erroneous admission of evidence will not constitute a forfeiture of an appellate claim where the error is so fundamental and gross in character as to rise to the level of a denial of due process."
The issue in Carreon, supra, 151 Cal.App.3d 559, was whether a defendant in a criminal case had a right to a personal, sworn interpreter. (Id. at p. 564.) The interpreters in this case had both assisted the defendant in communicating with defense counsel and had interpreted the testimony of Spanish-speaking witnesses during the preliminary hearing. (Id. at p. 565.) Furthermore, the interpreters had not taken a sworn oath during trial. (Id. at p. 576.) The court noted that defense counsel was present throughout the trial and seeing that an interpreter was not sworn, could easily have objected at the time and thereby cured any error. (Id. at p. 581.) Nevertheless, citing People v. Mills (1978) 81 Cal.App.3d 171, 176 (Mills), the Carreon court stated "The failure to object to the erroneous admission of evidence may not constitute a waiver if the 'error has resulted in a denial of due process of law.' " (Carreon, supra, 151 Cal.App.3d. at p. 581.) The Carreon court concluded that the "inadvertent omission of an interpreter oath requirement," "should not be regarded as such a 'rank' error." (Ibid.)
"[A] motion in limine to exclude evidence is a sufficient manifestation of objection to protect the record on appeal when it satisfies the basic requirements of Evidence Code section 353, i.e.: (1) a specific legal ground for exclusion is advanced and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable body of evidence; and (3) the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context." (People v. Morris (1991) 53 Cal.3d 152, 190, overruled on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) Unfortunately, because the court did not rule on Detective Dillon's generic 1108 evidence testimony appellant's pretrial objections do not satisfy these requirements.
Accordingly, we must determine if an objection to the prosecutor's opening statement and Detective Dillon's testimony would have been futile.
Initially, we note that there is nothing in the record to suggest that an objection to the prosecutor's opening statement would have been futile. Furthermore, even if the prosecutor's remarks are considered misconduct they were not so inflammatory or revelatory that a timely admonition could not have been effective.
It is misconduct for a prosecutor to mischaracterize the evidence. (People v. Hill (1998) 17 Cal.4th 800, 823.) However, a reversal requires more. "[O]nly misconduct that prejudices a defendant requires reversal [citation], and a timely admonition from the court generally cures any harm." (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.) "It is only in the exceptional case that 'the improper subject matter is of such a character that its effect . . . cannot be removed by the court's admonitions.' [Citation.]" (People v. Allen (1978) 77 Cal.App.3d 924, 935.) We do not believe this to be such a case. The court had already admonished the jury before opening statements that nothing the "attorneys or parties say is evidence." A reiteration of this admonition would have easily cured any harm.
As to Detective Dillon's generic 1108 testimony, we note that, essentially, appellant concedes that the evidence was admissible as 1108 evidence. Appellant argues, however, that it should have been excluded under Evidence Code section 352. We fail to see how an Evidence Code section 352 objection during Detective Dillon's testimony would have been futile. Appellant argues, however, that there is no possibility a limiting instruction would have had any effect on the evidence in question. Even if this court assumes for the sake of this discussion that the generic 1108 evidence was more prejudicial than probative, we disagree with appellant that an instruction to the jury to disregard the evidence would have had no effect.
Juries often hear evidence that a trial judge will strike. "[I]n order for trials to proceed without constant mistrial, it is axiomatic the prejudicial effect of these comments may be corrected by judicial admonishment; absent evidence to the contrary the error is deemed cured." (People v. Martin (1983) 150 Cal.App.3d 148, 163.)
Although we are mindful of the fact that whether the effect of the admission of certain evidence can be cured by an admonition or limiting instruction is highly speculative (see People v. Wharton (1991) 53 Cal.3d 522, 565), we are persuaded that any potential prejudice could have been cured by an instruction from the court to disregard Detective Dillon's generic 1108 evidence.
We reiterate that it is only in the exceptional case that improper subject matter is of such a character that its effect cannot be removed by a court's admonitions. (People v. Allen, supra, 77 Cal.App.3d at p. 935.) A finding of exceptional circumstances depends upon the facts in each case. (Ibid.) Only when the improper evidence goes to the main issue in the case and the proof of guilt is not overwhelming would we find an exceptional case. (See People v. Duncan (1960) 53 Cal.2d 803, 818.) Given the properly admitted testimony of six of appellant's other victims, Mike, Jason, Joey, Dale, Bryan, and Jay, and the testimony of M. and R., which was forthright and stood up to extensive cross-examination by appellant, we do not believe this to be an exceptional case.
Appellant argues that the evidence was so prejudicial that when the jurors are told that propensity evidence could establish a likelihood of guilt, but that guilt still had to be proved beyond a reasonable doubt, "the sheer force of such appallingly high numbers . . . 105 boys for the manuscript and 250 to 300 boys for the notebooks renders such a distinction between the likelihood of guilt and guilt beyond a reasonable doubt rather academic." Furthermore, appellant argues that the evidence "had a unique tendency to induce an emotional bias."
Again, appellant's argument assumes that after having been admonished to disregard Detective Dillon's generic 1108 testimony, the jurors then would not be able to follow the court's instruction that the prosecution had the burden of proving each element of every charge beyond a reasonable doubt and that the jurors should not let bias influence their decision.
Here, appellant has failed to demonstrate that he should be excused from the requirement of an objection and request for admonition. (See People v. Hill, supra, 17 Cal.4th at p. 820.) Thus, his failure to object to Detective Dillon's alleged improper testimony at the time of trial has forfeited this issue on appeal. (Id. at p. 822.)
In sum, appellant's claim is forfeited for failure to object on prosecutorial misconduct and Evidence Code section 352 grounds.
Furthermore, we note that appellant argued throughout the trial that the entire manuscript should be admitted into evidence. Accordingly, the jury was able to see whether Detective Dillon's estimates were accurate and whether the prosecutor's theory that the manuscript was not fiction was reasonable.
Finally, we note that there was abundant evidence of appellant's guilt, and we are satisfied from an examination of the entire record that there was no miscarriage of justice. (Cal. Const., art. VI, § 13.) Furthermore, the record shows beyond a reasonable doubt that any purported federal constitutional error was harmless. (Chapman v. California (1967) 386 U.S. 18, 23-24 [87 S.Ct. 824].)
V. The Giving of CALCRIM No. 224
While giving the jury instructions, the trial court gave to the jury the instruction on circumstantial evidence pursuant to CALCRIM No. 224, as follows: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocent, and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
Appellant contends that it was error for the trial court to give this instruction in a case where the assessment of his guilt hinged on direct evidence and not circumstantial evidence.
Initially, it is important to note that appellant does not dispute that CALCRIM No. 224 is a correct statement of the law.
The record reveals that there was a long series of meetings between the prosecutor, the trial judge and appellant concerning the instructions that would be given to the jury. The trial judge made a record of these meetings, noting that each side had some objections to the instructions the other side had proposed, but the court had not denied any instruction that the People requested nor denied any instruction that appellant had requested. Appellant made an extensive record of the instructions to which he had objections. After appellant made his record, the court specifically asked appellant if he had any further objections to the jury instructions that would be given. Appellant did not make an objection to the giving of CALCRIM No. 224. Furthermore, appellant did not object when the trial judge read CALCRIM No. 224 to the jury. Accordingly, from this particular record we can infer that appellant was in agreement with the giving of CALCRIM No. 224. As a result, appellant has forfeited this claim of instructional error. (People v. Bolin (1998) 18 Cal.4th 297, 326 [forfeiture found where defense counsel agreed to giving of instruction and raised no objection]; People v. Stone (2008) 160 Cal.App.4th 323, 331.)
VI. Consecutive Life Terms
In sentencing appellant, with respect to counts one through 10, the trial court imposed consecutive 15 year to life terms pursuant to Penal Code section 667.61 (the one-strike law).
Citing Cunningham v. California (2007) 549 U.S. 270 (127 S.Ct. 856, 860) (Cunningham), Ring v. Arizona (2002) 536 U.S. 584, 602 (122 S.Ct. 2428), Blakely v. Washington (2004) 542 U.S. 296, 300 (124 S.Ct. 2531) (Blakely), United States v. Booker (2005) 543 U.S. 220, 223-234 (125 S.Ct. 738), appellant argues that the trial court improperly imposed consecutive sentences because the jury did not find the aggravating factors that the trial judge relied on to impose consecutive sentencing.
In sentencing appellant, the trial court found "each of the crimes in Counts 1 through 11, and their objectives, were predominantly independent of each other. There are multiple victims, multiple occasions in varying circumstances. The crimes were not committed closely in time and place so as to indicate a single period of abhorrent behavior." The court declared that the jury verdicts supported these findings.
Judge Lee rendered judgment as follows: "It is the judgment and sentence of this Court that probation is denied. Under the findings of the jury, the defendant is not eligible for probation, and I would not have granted it to him if he were eligible. [¶] He is committed to the California Department of Corrections and Rehabilitation for 150 years to life, consecutive to two years calculated as follows: on Count 11, the Court has selected the midterm of two years. I make no findings in aggravation or mitigation accordingly. [¶] On Counts 1 through 10, in each case you were convicted. And in each case, the jury returned a finding of substantial sexual conduct pursuant to 667.61 (b) Subdivision (e). That mandates a sentence of life with a minimum of 15 years. [¶] I am mindful of the Cunningham decision. And though I agree with the D.A. that the decision on its face discussed only California's sentencing scheme and the sentence of aggravated, mitigated and midterm, in this case I intend to impose consecutive sentences. I'm aware I have the ability to impose concurrent or consecutive sentences. [¶] I make several findings: I find that each of the crimes in Counts 1 through 11, and their objectives, were predominantly independent of each other. There are multiple victims, multiple occasions in varying circumstances. The crimes were not committed closely in time and place so as to indicate a single period of abhorrent behavior. I believe each of those are supported by the jury's verdicts. [¶] Further reasons to run the sentences consecutive to each other relate to prior convictions for the same or similar conduct that were admitted by the defendant during the trial, and the fact that the defendant was on parole and/or post-prison supervision at the time of these offenses which, if I remember correctly, was also admitted by the defendant during the course of the trial. [¶] I note that if one or more of the reasons to run the sentences consecutive is invalid or stricken, I would have sentenced him consecutively on any one or more of the remaining reasons -- and, if the defendant is correct -- if Ms. Hall is correct that under Cunningham I can do no more than sentence him to two consecutive life sentences, I would do that."
The version of Penal Code section 667.61 in effect at the time appellant committed his crimes required a trial court to sentence a defendant to a lengthy indeterminate term for certain sex crimes where aggravating circumstances were present. Subdivision (c) specified the crimes subject to the one strike scheme and the aggravating circumstances were defined in subdivisions (d) and (e). A person convicted of one of the offenses in subdivision (c) was subject to a sentence of 15 years to life if one of the aggravating circumstances listed in subdivision (e) was present. (Pen. Code, § 667.61, subd. (b).)
Relevant here, appellant was convicted of 10 counts of lewd or lascivious act, in violation of subdivision (a) of section 288, one of the crimes found in subdivision (c) of section 667.61; and necessarily, the jury convicted him in the present case of committing the offenses against more than one victim, a circumstance found in subdivision (e) of section 667.61. (Pen. Code, §667.61, subds. (c) & (e).)
Penal Code section 667.61 was amended in 2006. (Stats.2006, ch. 337, § 33, eff. Sept. 20, 2006.) Since the amendment was effective after appellant's crimes, it has no bearing on his claim. (People v. Retanan (2007) 154 Cal.App.4th 1219, 1228, fn. 3.) All subsequent section references are to the former version of Penal Code section 667.61. (Stats. 1998, ch. 936, § 9.)
Subdivision (g) of section 667.61 provided that a one-strike sentence "shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion." If there are multiple victims during a single occasion, then the sentence shall be imposed once for each victim. (Ibid.)
In People v. Retanan, supra, 154 Cal.App.4th 1219 (Retanan), the Third District Court of Appeal held that the limitation in subdivision (g) of section 667.61 did not create a statutory maximum. Rather, the Retanan court concluded that subdivision (g) was closely analogous to section 654. Accordingly, the Retanan court reasoned that because section 654 is a discretionary benefit provided by the Legislature to apply in those limited situations where a defendant's culpability is less than the statutory penalty for his or her crimes, and since the rule of Blakely does not apply to the determination that defendant does not come within section 654 because that finding is not a factual determination made by a judge that increases the maximum statutory penalty for the particular crime or crimes, the same analysis should apply to section 667.61. (Retanan, supra, 154 Cal.App.4th 1239-1240.)
"Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the 'intent and objective' of the actor." (People v. Cleveland (2001) 87 Cal.App.4th 263, 267.) Under section 654, a defendant may be punished only once for all offenses incident to a single objective, but where a defendant had more than one objective, "the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct." (Id. at pp. 267-268.)
Specifically, the Retanan court articulated its logic as follows. The maximum penalty for Retanan's crimes was established when the jury convicted him of the predicate offenses and sustained special circumstance allegations. "Subdivision (g), if it applied, would only act to reduce liability if defendant's culpability was less than the statutory penalty for his crimes. Mitigating the maximum statutory punishment does not fall within the rule of Blakely and Apprendi. The trial court's finding that the subdivision (g) exception does not apply because the offenses are separate does not increase defendant's maximum sentence." (Retanan, supra, 154 Cal.App.4th at p. 1230, fn. added.)
Apprendi v. New Jersey (2000) 530 U.S. 466 (120 S.Ct. 2348).
Appellant contends that Retanan is "ill decided and wrong." Nevertheless, even if this court disagreed with the analysis in Retanan, Blakely and Cunningham are subject to harmless error analysis. (Washington v. Recuenco (2006) 548 U.S. 212, 222 [126 S.Ct. 2546]; People v. Sandoval (2007) 41 Cal.4th 825, 839.) The evidence overwhelmingly proved appellant committed each of the charged offenses against both M. and R. on different occasions. We are convinced beyond a reasonable doubt that no rational jury could have found that the offenses were not separate under section 667.61, subdivision (g). (See Chapman v. California, supra, 386 U.S. 18, 24.)
Furthermore, we note that in People v. Black (2007) 41 Cal.4th 799, 822-823, the California Supreme Court concluded that the constitutional right to a jury trial is not violated by the imposition of consecutive sentences, imposed pursuant to section 669, based on facts not found by a jury.
VII. Cumulative Error
Appellant argues that the error in not allowing him to introduce propensity evidence against Fred Everts, the error in not allowing him to testify to why he and Everts fought, and the error in allowing Detective Dillon's generic 1108 evidence testimony, were cumulatively prejudicial. Whether considered individually or for their cumulative effect, none of the errors alleged, if they were errors at all, affected the process or accrued to appellant's detriment. (People v. Sanders, supra, 11 Cal.4th at p. 565.) As the California Supreme Court has observed, a defendant is "entitled to a fair trial but not a perfect one. [Citations.]" (People v. Cunningham, supra, 25 Cal.4th at p. 1009.) In this case, appellant received a fair trial.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J. PREMO, J.