Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Sam Otha, Judge, Los Angeles County Super. Ct. No. BA277809
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Edward Bernard Spencer appeals the judgment entered following his conviction by jury of two counts of forcible lewd act upon a child under the age of 14 years, one count of lewd act upon a child under the age of 14 years and one count of making a criminal threat. (Pen. Code, §§ 288, subd. (b)(1), 288, subd. (a), 422.) The jury found that, in the commission of each count of lewd act, Spencer committed an offense specified in section 667.61, subdivision (c), against more than one victim, thereby triggering the provisions of the “One Strike” law. The trial court found Spencer had three prior convictions within the meaning of the “Three Strikes” law (§§ 667, subs. (b)-(i), 1170.12) and section 667, subdivision (a)(1), and sentenced Spencer to four consecutive life terms with a mandatory minimum term before parole eligibility of 265 years.
Subsequent unspecified statutory references are to the Penal Code.
In this appeal, Spencer claims three of his four convictions are not supported by sufficient evidence and admission of propensity evidence under Evidence Code section 1108 violated his right to a fair trial. We reject these contentions and affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
1. The People’s evidence.
a. Lewd acts committed upon Deshawn S.
(1) Forcible lewd act (count 1).
Deshawn S., eighteen years of age at the time of trial, testified he has known Spencer all his life. When Deshawn S. was 13 years of age, Spencer drove Deshawn S. and his brother, U.M., among other children, to the home of Spencer’s wife, Velma, which was a short distance from a park. Spencer told the other children to go to the park. When they were alone, Spencer removed his pants, told Deshawn S. to come to him and “he pulled me over there to him.” Spencer removed Deshawn S.’s pants and underwear. They went to a bedroom where Spencer “threw [Deshawn S.] on the bed.” Spencer, who weighed in excess of 300 pounds at the time of this incident, got on top of Deshawn S. and “started humping” him. Deshawn S. tried to make Spencer stop by pushing him but he was unable to do so because Spencer was “too big.” When Deshawn S. tried to push Spencer off, Spencer said, “damn, we can never finish.” Spencer then told Deshawn S. to go to the park and get U.M. Deshawn S. complied and stayed at the park after he told U.M. to return to Velma’s house.
(2) Lewd act (count 2).
The next day, Spencer drove Deshawn S. to a store where Spencer told Deshawn S. to go get some pickles. When Deshawn S. returned, Spencer told him to suck the pickle, back and forth. Spencer began to feel Deshawn S.’s inner thigh and asked Deshawn S. to suck his penis but Deshawn S. refused. When Deshawn S. returned home, he reported what had happened to his mother.
b. Forcible lewd act committed upon U.M. (Count 3.)
U.M., 13 years of age at the time of trial, testified that when he was eight years old, Spencer told U.M. and some other children to go to the park. Deshawn S. initially stayed with Spencer, then came to the park and told U.M. to return to the house. U.M. returned and began to play a video game. Spencer stood in front of television, blocking U.M.’s view. Spencer touched U.M.’s private area with both hands over U.M.’s clothing. U.M. was unable to stand with Spencer in front of him. U.M. tried to push Spencer away but Spencer was too big. U.M. said he was going to tell his mother but Spencer said he did not care. Spencer touched U.M.’s private area for about five minutes, then put his finger in U.M.’s mouth and told him to suck it. U.M. tried unsuccessfully to push Spencer’s hand away. The incident ended when another child came to the door and asked U.M. to play.
c. Making a criminal threat (count 4).
Ismael. R., 20 years of age at the time of trial, met Spencer on a party line at the age of 15 years. They commenced a sexual relationship when Ismael R. was 16 years of age at the home of a relative of Spencer’s. Ismael R. testified they met at someone else’s home for sex because Spencer, who told Ismael R. he was 40 years of age, knew Ismael R. wasunderage. On the night of Ismael R.’s 18th birthday in June of 2003, Ismael R. spent the night at Spencer’s residence for the first time. Spencer required Ismael R. to obtain a notarized statement indicating his age before Spencer allowed Ismael R. to stay overnight at Spencer’s home.
The day after his 18th birthday, Ismael R. had dinner with a male friend without telling Spencer where he was going. Ismael R. ignored Spencer’s telephone calls during dinner. Ismael R. returned from dinner to his home in Long Beach at approximately midnight. Spencer telephoned him and accused him of lying and cheating and threatened to “shoot up” Ismael R.’ house. Spencer said he would be Ismael R.’s “worst enemy” and would have Ismael R. and his family “shot up.” Ismael R. made these threats in an angry tone of voice that made Ismael R. afraid. Ismael R. cried when Spencer threatened to shoot at Ismael R.’s home because Ismael R. lives with his mother, his sister and her daughter. Ismael R. waited a couple of minutes, then telephoned a friend for advice. After speaking to the friend, Ismael R. called the police. Officers came to Ismael R.’s home and Ismael R. reported that Spencer had threatened him. When the police arrived, Ismael R. was still afraid. While Ismael R. spoke to the officers, he got a text message and a telephone call from Spencer apologizing. The police officers saw the text message.
On a prior occasion when Spencer and Ismael R. argued, Spencer struck Ismael R. with an open hand in the face. When the prosecutor asked Ismael R. whether Spencer could have had Ismael R.’ house shot up, Ismael R. responded, “yes. It’s a possibility of anything that could happen.”
d. Other crimes.
(1) Cheryle S.
Cheryle S., the mother of Deshawn S. and U.M., has known Spencer since she was seven or eight years of age. Cheryle S.’s mother worked at a school and Spencer was affiliated with the school. When Cheryle S. was about 12 years of age, Spencer began to live in her mother’s home. Spencer sexually molested Cheryle S. two or three times a week from the time Cheryle S. was 8 years of age until she was 14 years.
(2) Nadine F.
Nadine F., 25 years of age at the time of trial, testified she lived with Spencer, who was her uncle, and his family in Oxnard when she was a child. When Nadine F. was nine years of age, she moved to Apple Valley and lived with her grandmother. Spencer sometimes took Nadine F. on short trips during which he had sex with her. Nadine F. reported the abuse to her mother when Nadine F. was 12 years of age because her mother was going to send her to live with Spencer.
(3) Shemeka R.
Shemeka R., 26 years of age at the time of trial, testified she has known Spencer since the age of two years. In February of 1993, Shemeka R. went to Spencer’s home to pay a pager bill and found Spencer in bed with a cover over him. Spencer told Shemeka R. to type her name into a computer. When Shemeka R. sat in a chair, Spencer pulled her onto the bed, then got on top of her and humped her, ignoring her protests.
(4) Terry V..\
The People read into the record the preliminary hearing testimony of Terry V. from the case of People v. Spencer, A619558. In that case, Terry V. testified on December 1, 1980, that he was 13 years of age and a student in the 7th grade. In November of 1980, Spencer told Terry to get into his car. Spencer exposed his penis, grabbed Terry’s head, pulled it forward and told him to suck his penis. The police arrived during the encounter.
2. Verdicts and sentencing.
The jury convicted Spencer as charged.
Spencer waived jury trial on prior conviction allegations and the trial court found Spencer had suffered three separate prior convictions of lewd act. Utilizing the One Strike law, the Three Strikes law and section 667, subdivision (a)(1), the trial court sentenced Spencer to four consecutive life terms with a minimum term before parole eligibility of 265 years.
CONTENTIONS
Spencer contends the evidence of force or duress was insufficient to support the convictions of forcible lewd act in counts one and three, the evidence was insufficient to support the conviction of making a criminal threat in count four and all of the convictions must be reversed because admission of propensity evidence under Evidence Code section 1108 violated Spencer’s right to due process and equal protection of the law.
DISCUSSION
1. Sufficiency of the evidence.
a. Counts of forcible lewd act.
Spencer contends there was insufficient evidence of force to support his convictions of forcible lewd act in counts one and three. Spencer claims the evidence shows he used only that force which commonly attends the act involved. Spencer, who weighed in excess of 300 pounds at the time of the charged offenses, asserts the resistance offered by Deshawn S. and U.M. was unsuccessful only because of the passive fact of Spencer’s bulk, not any affirmative or intentional use of his bulk as a force to effectuate the molestation. Spencer asserts that, because the victims testified only they could not push Spencer away due to his girth, the offenses were not forcible. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1293-1294.) Spencer argues that, because “a modicum of holding and even restraining” does not constitute sufficient force to show a violation of section 288, subdivision (b) (People v. Senior (1992) 3 Cal.App.4th 765, 774; People v. Schultz (1992) 2 Cal.App.4th 999, 1004), the convictions of forcible lewd act must be reversed.
Spencer’s arguments are not persuasive.
Section 288, subdivision (a) proscribes lewd conduct with a child under the age of 14. When the offense is committed by means of force or duress, it is punished under section 288, subdivision (b). In order to establish “force” within the meaning of subdivision (b) of section 288, the prosecution must show the defendant “used physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.” (People v. Cicero (1984) 157 Cal.App.3d 465, 474; People v. Cardenas (1994) 21 Cal.App.4th 927, 939; People v. Gilbert (1992) 5 Cal.App.4th 1372, 1381.)
Here, Spencer pulled Deshawn S. to him, removed his pants, took him to a bedroom and threw him onto the bed. Spencer then got on top of Deshawn S. and began to molest him despite Deshawn S.’s efforts to push Spencer away. Regarding U.M., Spencer stood over U.M., who was in a seated position playing a video game. U.M. tried unsuccessfully to push Spencer away and threatened to report Spencer’s inappropriate conduct to his mother but Spencer was undeterred. U.M. also tried to push Spencer’s finger away when Spencer put his finger in U.M.’s mouth.
Conduct similar to Spencer’s has been found sufficient to support a conviction of forcible lewd act in numerous cases. For example, People v. Cicero concluded the “defendant’s acts of picking the girls up and carrying them along were applications of physical force substantially different from and substantially greater than that necessary to accomplish the lewd act of feeling their crotches.” (People v. Cicero, supra, 157 Cal.App.3d at p. 474; accord, People v. Bolander (1994) 23 Cal.App.4th 155, 161 [defendant pulled the victim’s pants down and pulled the victim toward him]; People v. Bergschneider (1989)211 Cal.App.3d 144, 153-154, superseded by statute as stated in People v. Valentine (2001) 93 Cal.App.4th 1241 and disapproved on another ground in People v. Griffin (2004) 33 Cal.4th 1015, 1028 [sufficient force shown where the victim unsuccessfully tried to push the defendant’s head away when he attempted to perform oral copulation]; People v. Mendibles (1988) 199 Cal.App.3d 1277, 1307 [defendant pulled the victims back as they tried to get away and pulled the head of one victim forward to initiate oral copulation]; People v. Pitmon (1985) 170 Cal.App.3d 38, 44-45, [defendant rubbed himself with the victim’s hand and pushed the victim’s head during oral copulation]; People v. Stark (1989) 213 Cal.App.3d 107, 110-112 [defendant laid on top of the nine-year-old victim and fondled him until the victim was able to kick the defendant].)
As in the foregoing cases, Spencer applied substantially more and greater force than was necessary to commit the lewd act. Spencer pulled Deshawn S. to him, removed his pants, threw him on a bed and humped him despite Deshawn’s attempts to push Spencer away. When Spencer pinned U.M. in a seated position to molest him and put his finger in U.M.’s mouth, U.M. tried unsuccessfully to push Spencer away and tried to push Spencer’s hand from his mouth. Thus, Spencer’s citation of People v. Espinoza, supra, 95 Cal.App.4th at pp. 1293-1294, does not assist his argument. In that case, the defendant lewdly touched and attempted intercourse with a victim who made no oral or physical response to his acts. Here, both victims resisted Spencer’s molestation. Although resistance is not required to prove forcible sexual assault, the jury could consider the manner in which Spencer overcame the resistance offered by Deshawn S. and U.M. in deciding that Spencer used force to accomplish the conduct alleged.
Spencer’s reliance on People v. Schultz, supra, 2 Cal.App.4th 999 and People v. Senior, supra, 3 Cal.App.4th 765, similarly is misplaced. In each of those cases, the Sixth District affirmed convictions of lewd act under section 288, subdivision (b), based on duress and, in dicta, suggested the evidence of force was insufficient because lewd acts with a child under age 14 “almost always involve some physical contact other than [the lewd act itself]” (People v. Senior, at p. 774) and “a modicum of holding and even restraining cannot be regarded as substantially different or excessive ‘force’ [beyond the force required for the lewd act.]” (People v. Schulz, supra, 2 Cal.App.4th at p. 1004.)
However, the Sixth District expressly repudiated Schulz and Senior in People v. Bolander stating: “[I]n light of convincing criticisms set forth in [People v. Babcock (1993) 14 Cal.App.4th 383] and [People v. Neel (1993) 19 Cal.App.4th 1784], we respectfully disagree with the interpretation of the ‘force’ requirement of section 288, subdivision (b) discussed in Schulz and Senior. We instead join those courts which have held that ‘[i]n subdivision (b), the element of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person is intended as a requirement that the lewd act be undertaken without the consent of the victim. [Citation.]’ ” (People v. Bolander, supra, 23 Cal.App.4th at pp. 160-161.) Thus, Schultz and Senior are not persuasive authority on the point for which Spencer cites them.
Accordingly, we conclude the evidence supported Spencer’s convictions of forcible lewd act in counts one and three. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, People v. Jennings (1991) 53 Cal.3d 334, 364; People v. Johnson (1980) 26 Cal.3d 557, 577-578.)
2. Making a criminal threat.
a. Elements and standard of review.
“In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant ‘willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,’ (2) that the defendant made the threat ‘with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,’ (3) that the threat – which may be ‘made verbally, in writing, or by means of an electronic communication device’ – was ‘on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,’ (4) that the threat actually caused the person threatened ‘to be in sustained fear for his or her own safety or for his or her immediate family’s safety’ and (5) that the threatened person’s fear was ‘reasonabl[e]’ under the circumstances.” (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
In reviewing the sufficiency of the evidence to support a conviction of making a criminal threat, we evaluate the circumstances in their totality to determine whether the communication conveyed to the person threatened a gravity of purpose and an immediate prospect of execution of the threat. (In re Ryan D. (2002) 100 Cal.App.4th 854, 859-863; People v. Butler (2000) 85 Cal.App.4th 745, 753-754.) The circumstances surrounding a communication include such things as the prior relationship of the parties and the manner in which the communication was made. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140) The prosecutor must show the victim actually was in sustained fear and that this fear was reasonable under the circumstances. (Id. at p. 1137-1138.) When the defendant has been convicted of making a criminal threat, in addition to testing the sufficiency of the evidence under the usual standard, the reviewing court also exercises its independent judgment to ensure the defendant’s free speech rights have not been impermissibly infringed. (In re George T. (2004) 33 Cal.4th 620, 632.)
b. Spencer’s contention.
Spencer contends Ismael R.’s testimony does not demonstrate that Ismael R. reasonably believed Spencer was capable of shooting up Ismael R.’s home or that Ismael R. reasonably was in sustained fear as a result of Spencer’s alleged threat. Spencer notes there was no evidence Spencer owned a gun, the angry words were not accompanied by a show of physical violence because they were made by telephone and there was no evidence Spencer had ever done anything to make Ismael R. believe “anything was possible.” Spencer asserts the threat was not genuine because he apologized in the same telephone call in which the threat was made and he apologized twice more shortly thereafter, once in a text message and another in a telephone call, both of which Riva received while he was speaking to the police. Because the “threat” was no more than an emotional outburst (People v. Felix (2001) 92 Cal.App.4th 905, 913), and there was nothing to show Spencer intended to carry out the threat, Spencer concludes the conviction of making a criminal threat must be reversed.
c. Analysis.
As noted above, Spencer claims the evidence indicates he apologized to Ismael R. in the same conversation in which he issued the threats. Spencer bases this assertion on a statement Ismael R. made in response to a question asking how long after the accusation of cheating did Spencer call to apologize. Ismael R. responded probably a couple of minutes later, then added, “during the conversation, actually.” Neither side asked any follow up questions to attempt to pinpoint what Ismael R. meant by this remark. Although it is conceivable that Ismael R. meant by this statement to indicate Spencer apologized in the first telephone conversation, given the facts of the case, it appears Ismael R. meant to indicate Spencer telephoned to apologize during Ismael R.’s conversation with the police officers.
Moreover, other testimony by Ismael R. reveals any apology issued in the first conversation did not dissipate Ismael R.’s fear or reduce his anxiety. Ismael R. testified that, in the first conversation, Spencer angrily accused Ismael R. of cheating and lying, and threatened to shoot up Ismael R.’s house and have Ismael R.’s family shot up. Ismael R. cried upon hearing these threats because he was frightened and believed Spencer could follow through with his threat. Ismael R. waited a few minutes, then called a friend and thereafter called the police who arrived within six minutes. Ismael R. remained upset when he spoke to the police, which must have been approximately 15 minutes after the first conversation.
In determining whether fear is sustained within the meaning of section 422, courts have defined that term “by its opposites, [to mean] a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) In Allen the armed defendant’s threat to kill the victim and her daughter was terminated by the arrest of the defendant 15 minutes after making the threat. People v. Allen at page 1156, stated, “[f]ifteen minutes of fear of a defendant who is armed, mobile, and at large, and who has threatened to kill the victim and her daughter, is more than sufficient to constitute ‘sustained’ fear for purposes of this element of section 422.” (Ibid.) Given this result, we cannot say the evidence presented in this case was insufficient to permit the jury rationally to conclude Ismael R. was in sustained fear of violence from Spencer.
Regarding whether Ismael R.’s fear was reasonable, Spencer previously struck Ismael R. in the face and thus was capable of violence. Although there was no evidence that Spencer owned a gun, Ismael R. and the jury both could rely on the fact that firearms are not difficult to obtain. Moreover, it was not unreasonable for Ismael R. to fear Spencer, his jealous lover, might react violently upon suspecting Ismael R. of infidelity. In this connection, we note Ismael R. had been in an intimate relationship with Spencer since the age of 16 years which, by definition, was criminal. In addition to the difference in their ages, Spencer’s subjugation of Ismael R. is evidenced by the fact he required Ismael R. to obtain evidence of his age before Spencer would permit Ismael R. to spend the night in Spencer’s home. Given the totality of these circumstances, the jury rationally could conclude Spencer’s threat reasonably caused Ismael R. to be in sustained fear for the safety of himself and his family.
In sum, Spencer’s assault on the sufficiency of the evidence to support the conviction of making a criminal threat fails.
3. Propensity evidence properly admitted.
Spencer contends the admission of propensity evidence in this case under Evidence Code section 1108 violated his right to due process and equal protection of the law. Spencer concedes People v. Falsetta (1999) 21 Cal.4th 903, 917, held propensity evidence admitted under Evidence Code section 1108 in a prosecution for sexual offenses does not violate due process because its admission expressly is subject to the weighing process of Evidence Code section 352 and the trial court has an obligation to give the jury a limiting instruction on the use of the evidence. (Id. at pp. 914-917.) Spencer argues Falsetta should be reevaluated because Evidence Code section 352 is applied so inconsistently that it is impossible in many cases to review the lower court’s ruling for abuse of discretion. (See People v. Taylor (2001) 26 Cal.4th 1155, 1169.) Further, trial courts often fail to give properly tailored limiting instructions. Thus, the protections assumed by Falsetta either do not exist or are inadequate.
Putting aside Spencer’s failure to object to the evidence of other crimes in the trial court on any grounds other than those arising under Evidence Code section 352 (People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20), Spencer’s arguments are not persuasive. In any event, it is not for this court to reevaluate Falsetta. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Spencer next asserts that, because propensity evidence is admitted only in sex cases, Evidence Code section 1108 violates the equal protection clause in that it discriminates on an irrational basis, given that the recidivism rate for sex offenders is lower than that of other types of offenders.
This argument was rejected in People v. Fitch (1997) 55 Cal.App.4th 172, 184, which held the Legislature rationally could determine the secretive nature of sex offenses justified admission of relevant evidence of other sex offenses committed by the defendant. Fitch, which was cited with approval in Falsetta, noted the Legislature was free to apply this remedy to one area of the law and neglect others. (People v. Falsetta, supra, 21 Cal.4th at p. 918; People v. Fitch, supra, at pp. 184-185.) Falsetta’s endorsement of Fitch’s reasoning persuades us it should apply in this case. (See, e.g., People v. Waples (2000) 79 Cal.App.4th 1389, 1394-1395.) Thus, Spencer’s equal protection argument fails.
Finally, Spencer argues Falsetta must be reconsidered in light of Garceau v. Woodford (9th Cir. 2001) 275 F3d 769, reversed on other grounds in Woodford v. Garceau (2003) 538 U.S. 202 [155 L.Ed.2d 363]. However, nothing in Garceau suggests Falsetta should be revisited.
Garceaudid not concern the admissibility of prior sex offenses in a sex offense case. Rather, it concerned the introduction of evidence that the defendant had been convicted of murder in another case and testimony that he manufactured illegal drugs. (Woodford v. Garceau, supra, 275 F.3d at p. 773.)In People v. Garceau (1993) 6 Cal.4th 140, 185-187, overruled on another point in People v. Yeoman (2003) 31 Cal.4th 93, 117-118, the California Supreme Court held the admission of prior crimes evidence to show propensity to commit murder violated California law, but the error was harmless. The Ninth Circuit disagreed with the finding the error was harmless, not on the underlying inadmissibility of the other crimes evidence. Thus, nothing in Garceau v. Woodward casts doubt on the conclusion reached in People v. Falsetta, supra, 21 Cal.4th 903, that Evidence Code section 1108 passes constitutional muster.
Furthermore, in United States v. LeMay (9th Cir. 2001) 260 F.3d 1018, the Ninth Circuit rejected constitutional attacks on the admission of evidence of a prior offense of child molestation in a prosecution for child molestation. In so doing, the Ninth Circuit utilized a rationale similar to that of Falsetta, relying on Federal Rule 403, which provides relevant evidence may be excluded, among other reasons, if its probative value is substantially outweighed by the danger of unfair prejudice. (United States v. LeMay, supra, at p. 1031.) Thus, it appears the Ninth Circuit has rejected Spencer’s interpretation of Garceau v. Woodford.
In sum, Spencer’s claims related to the admission of propensity evidence under Evidence Code section 1108 uniformly fail.
DISPOSITION
The judgment is affirmed.
We concur: KITCHING, J., ALDRICH, J.