Opinion
E050843
10-27-2011
THE PEOPLE, Plaintiff and Respondent, v. MIKE DAVID WARD, Defendant and Appellant.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. FSB048662)
OPINION
APPEAL from the Superior Court of San Bernardino County. Duke D. Rouse, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Mike David Ward appeals from his conviction of two counts of lewd acts upon a child (Pen. Code, § 288, subd. (a)) and associated enhancements (§§ 667.61, subds. (a), (b), (e), 667.5 subd. (b), 667, subds. (b)-(i)). Defendant contends: (1) his conviction on count 2 must be reversed because it was not supported by substantial evidence; (2) he was deprived of due process and a fair trial by the admission of evidence of prior bad acts; (3) the trial court violated his rights to confrontation and due process by limiting impeachment of prosecution witnesses; and (4) the trial court erred by sentencing him to consecutive terms. We find no error, and we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTS AND PROCEDURAL BACKGROUND
In February 2005, when Jane Doe was seven years old and her brother, T., was 10 or 11 years old, their father told Jane her maternal grandmother was coming to pick the children up for a visit. Jane began to cry and told her father she did not want to go because defendant, her grandmother's boyfriend, had touched her "tee-tee." Her father called the police. Her father testified the children had visited their grandmother three to five times in 2004, and their last visit had been between October and December.
Jane testified that in 2004, she and her brother had visited their grandmother, and defendant had picked them up at their father's house for the visits. The children sometimes stayed at their grandmother's house and sometimes in defendant's trailer. When they stayed in the trailer, the grandmother, defendant, and T. slept in the bedroom while Jane slept on the couch in the next room. One night, Jane heard footsteps and saw defendant walking towards the couch. Defendant reached under the blankets and under her clothes and touched Jane's "X spot," which she identified as her vagina, with his finger. She could feel his fingernail inside her. Defendant said, "baby," three times, put his finger over his lips, and said, "shh." While he was touching her, Jane saw his other hand moving back and forth in a "rotation" manner inside his own underwear. He tried to take off Jane's skirt and underwear but was unable to do so because the blanket was wrapped around her.
After defendant left, Jane started crying and went to the bedroom where her grandmother was sleeping. Jane was going to tell her grandmother what had happened, but defendant said Jane had probably just fallen off the couch. She did not say anything to her grandmother the next day because she was afraid defendant would hurt her. She finally told her father because she did not want to go with defendant for another visit.
Jane testified that in 2004, before the incident in the trailer, she and defendant had been playing a game in which defendant held her on his shoulders while she tried to balance a stuffed frog on her head. During the game, defendant "was touching" her on her "X spot" over her clothing. That incident occurred before the incident in the trailer. During the game, which apparently began in the living room, her grandmother and brother had been sitting on the couch in the living room, and defendant took Jane into her grandmother's room.
T. testified that defendant had sometimes picked up him and his sister for visits with their grandmother in 2004. One time they were staying in defendant's trailer; T., defendant, and the grandmother slept in the bedroom while Jane slept on the couch. T. heard the floor creak when someone walked from the bedroom to the next room. Sergeant Dana Foster testified that she had interviewed Jane in March 2005. Jane told the sergeant that defendant had put his finger inside her "X spot" one night at his trailer. Defendant's other hand was inside his boxer shorts, and he was moving his hand back and forth. He put his fingers to his lips and said, "shh," and also said "baby, baby, baby."
Sergeant Foster spoke with Jane again a few days later over the telephone, and Jane described a game during which defendant touched her vagina over her clothing while he was holding her up.
Evidence was presented that defendant had pleaded guilty to one count of committing a lewd act (§ 288, subd. (a)) on another child in 2000. He had been sentenced to three years in prison, and he had been paroled in February 2003. In 1999, defendant was convicted of possession for sale of a controlled substance.
The jury found defendant guilty of two counts of lewd acts upon a child (§ 288, subd. (a)) and found true associated enhancements (§§ 667.61, subds. (a), (b), (e), 667.5 subd. (b), 667, subds. (b)-(i)). The trial court sentenced defendant to a term of 50 years to life for each count and ordered that the terms run consecutively. The trial court imposed a consecutive one-year term for the prison prior. (§ 667.5, subd. (b).)
III. DISCUSSION
A. Substantial Evidence
Defendant contends his conviction on count 2 must be reversed because it was not supported by substantial evidence. Specifically, he argues the prosecution failed to establish that he touched Jane with the required lewd intent during the incident in which she sat on his shoulders.
1. Standard of Review
When a criminal defendant contends the evidence was insufficient to support his conviction, we review the whole record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)
2. Analysis
Section 288, subdivision (a) provides: "Any person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . ." "Because intent for purposes of Penal Code section 288 can seldom be proven by direct evidence, it may be inferred from the circumstances." (In re Mariah T. (2008) 159 Cal.App.4th 428, 440.) In determining intent, the trier of fact may "consider the relationship of the parties, the nature of the touching, and the presence or absence of any nonsexual purpose under section 288." (People v. Martinez (1995) 11 Cal.4th 434, 450, fn. 16.)
Undisputed evidence established that defendant touched Jane's genital area when she was sitting on his shoulders—the only issue was his intent in doing so. Defendant argues the touching could have been an innocent movement, such as to keep the child from falling.
Defendant argues that the evidence showed the incident happened in front of Jane's brother and grandmother, indicating it was entirely innocent. However, Jane testified that her brother and grandmother had been on the couch in the living room, and defendant had taken her inside her grandmother's room.
In People v. Gilbert (1992) 5 Cal.App.4th 1372, 1380, the court found the evidence sufficient to support the defendant's conviction of lewd acts under section 288, subdivision (a), even though the defendant had merely rubbed the victim's stomach, back, and thighs. The court held the jury could properly determine he had done so with lewd intent because of his pattern of conduct with the victim and with other young girls. (People v. Gilbert, supra, at pp. 1380-1381.) Here, similarly, the jury could properly infer the requisite lewd intent on the basis of defendant's charged and uncharged similar offenses. (Evid. Code, § 1101, subd. (b).) Thus, we conclude ample evidence supported the jury's finding that defendant had a lewd intent in touching Jane.
B. Evidence of Prior Bad Acts
Defendant contends he was deprived of due process and a fair trial by the admission of evidence of prior bad acts.
1. Additional Background
Before trial, the prosecutor moved to admit defendant's 2000 conviction for violating Penal Code section 288, subdivision (a), under Evidence Code sections 1108 and 352. At the hearing on the motion, defense counsel argued that the prior conviction should be excluded as unduly prejudicial. The prosecutor stated it wished to limit the evidence to merely the fact of conviction, not the facts underlying the conviction. The trial court noted the prior conviction had substantial probative value, the danger of prejudice was mitigated because defendant had already been punished for the prior crime, and the facts underlying the conviction would not be introduced. The trial court therefore granted the motion to admit evidence of the prior conviction.
A second hearing on the issue took place before a new trial judge when, at the request of both parties, the jury was excused and a new trial date was set. Defense counsel renewed her objection to evidence of the prior conviction. The trial court ruled: "Balancing the factors with [Evidence Code section] 352 in particular since it is documentary evidence of a conviction only and not a descriptive evidence of the facts of that case nor is it an uncharged offense, the Court finds having weighed those factor[s] that [it] is not unduly prejudicial under [Evidence Code section] 352 and the court will grant the People's motion to allow the evidence under [Evidence Code section] 1108."
2. Standard of Review
We review the trial court's ruling to admit evidence under the deferential abuse of discretion standard. (People v. Jenkins (2000) 22 Cal.4th 900, 1008.)
3. Analysis
Evidence Code section 1108 allows the admission of evidence of a defendant's conviction of another sexual offense subject to the weighing process of Evidence Code section 352. Under that weighing process, the court considers, among other factors, "(1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show the defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant's charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time." (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1117.)
Each of the factors listed above supports the trial court's decision to admit the evidence. The prior act and the charged offenses were sufficiently similar because they all involved violations of Penal Code section 288, subdivision (a)—lewd acts on a child. (See People v. Frazier (2001) 89 Cal.App.4th 30, 41, fn. omitted ["It is enough the charged and uncharged offenses are sex offenses as defined in [Evidence Code] section 1108."].) The prior acts evidence was not inflammatory—the jury was merely told of the fact of defendant's guilty plea and conviction. (See People v. Wesson (2006) 138 Cal.App.4th 959, 967-968 [upholding the admission of the official record of the defendant's prior conviction of a sexual offense under Evidence Code section 1108].) The prior conviction was not stale, having occurred in 2000. (See, e.g., People v. Ewoldt (1994) 7 Cal.4th 380, 405 [passage of 12 years since prior molestation did not "significantly lessen the probative value of [the] evidence"], superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505.) The prior conviction was not likely to confuse or distract the jury because the jury was told defendant had spent three years in prison in punishment for that offense. (See People v. Daniels (2009) 176 Cal.App.4th 304, 313.) Finally, minimal time was spent proving the prior conviction.
We conclude the trial court acted well within its discretion in admitting the challenged evidence.
C. Limiting Impeachment
Defendant contends the trial court violated his rights to confrontation and due process by limiting impeachment of prosecution witnesses. In the alternative, defendant argues his trial counsel provided ineffective assistance by failing to offer impeaching evidence.
1. Additional Background
In October 2008, after a jury had been selected but not sworn in, Jane's mother told the prosecutor that Jane had previously made allegations against her father. At a pretrial hearing, Jane's mother testified that when Jane was four years old, Jane and her brother lived with their father. During a visit with their mother, Jane said that "her dad had been hurting her." The mother asked Jane if the father had touched her, and Jane said yes. Jane's brother, T., said, "it's not just daddy. It's grandma and auntie too." The mother did not ask for more details, but she reported the information to the San Bernardino County Children and Family Services (CFS).
The trial court contacted CFS to obtain any investigative reports involving referrals made regarding Jane. The court stated on the record that county counsel had faxed copies of five investigative narratives from five different referrals, and none of them contained any allegation that Jane had been sexually assaulted by the father or anyone else. The trial court excused the jury and granted a continuance to allow defense counsel to investigate the matter. Defense counsel never sought to introduce evidence of the allegation at trial.
In March 2009, defense counsel moved in limine to introduce evidence that Jane had allegedly been molested by a friend's father sometime after the incidents alleged against defendant. Jane had said the alleged molester digitally penetrated her vagina and told the investigator she knew it was a finger that penetrated her because she could feel the perpetrator's fingernail. Jane had used the same language in describing defendant's act of digital penetration. The trial court tentatively ruled that the evidence was not admissible but invited defense counsel to raise the issue at trial. Defense counsel did not raise the issue again.
2. Forfeiture
The People argue that defendant's claims may not be raised on appeal. First, defendant never sought to elicit evidence of any statements the victim allegedly made to her mother about her father "hurting" her. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1303-1304 [defendant failed to proffer evidence, and trial court never made a ruling excluding that evidence].) Second, defendant never renewed the issue of allegations of a subsequent molestation although the trial court's tentative ruling invited him to do so. "A tentative pretrial evidentiary ruling, made without fully knowing what the trial evidence would show, will not preserve the issue for appeal if the appellant could have, but did not, renew the objection or offer of proof and press for a final ruling in the changed context of the trial evidence itself." (People v. Holloway (2004) 33 Cal.4th 96, 133.) We conclude defendant has forfeited his arguments.
3. Ineffective Assistance of Counsel
Defendant contends, in the alternative, that his trial counsel provided ineffective assistance by failing to offer evidence of the victim's allegations against others. The confrontation clause of the Sixth Amendment guarantees "the right of an accused in a criminal prosecution 'to be confronted with the witnesses against him'" (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678), and cross-examination is essential to the right of confrontation "and an essential safeguard of a fair trial" (People v. Brock (1985) 38 Cal.3d 180, 189). A prior false accusation of sexual molestation is relevant to the issue of the victim's credibility. (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1457.) However, unless prior accusations were established to have been false, they have no bearing on a witness's credibility. (Ibid.; People v. Bittaker (1989) 48 Cal.3d 1046, 1097.)
To establish ineffective assistance of counsel, a defendant must show that his counsel's performance fell below an objective standard of reasonableness and that prejudice resulted. (People v. Vines (2011) 51 Cal.4th 830, 875-876.) "In determining whether counsel's performance was deficient, we exercise deferential scrutiny. [Citations.] The appellant must affirmatively show counsel's deficiency involved a crucial issue and cannot be explained on the basis of any knowledgeable choice of tactics. [Citations.]" (People v. Montoya (2007) 149 Cal.App.4th 1139, 1147.) "We reverse on the ground of inadequate assistance on appeal only if the record affirmatively discloses no rational tactical purpose for counsel's act or omission." (Id. at p. 1148.) "If the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.'" (People v. Kipp (1998) 18 Cal.4th 349, 367.)
A sound explanation for defense counsel's failure to raise the issue is apparent from the record before us. First, the mother's testimony was ambiguous at best about whether Jane had said her own father had molested her. Second, the trial court obtained records from CFS that failed to support the mother's testimony about possible molestation by the father, and gave defense counsel the opportunity to conduct further investigation. The record contains no indication that defense counsel found any support to establish that the allegation had even been made, let alone that it had been established to be false.
Next, the record shows that Jane's allegations against another person arose in the context of a criminal prosecution in Los Angeles County. Defense counsel stated: "And there is one other issue. This information came out while we were trying to try this case the first time. And the alleged victim in this case subsequent to this case being filed, was the subject of another case . . . . [¶] . . . [¶] . . . Where she alleged that the father of a friend of hers had molested her. That case went to trial and when she was interviewed about that case, she described certain conduct by that defendant that mirrors the conduct by Mr. Ward. Specifically that she felt, while she was being molested, she felt the defendant in both cases fingernail and that's how she knew that it was the finger that she was being molested with. [¶] And I wanted to—that came out after we started the trial, and I wanted to seek to be able to question her about that statement that she made, not about the outcome of that case or specifics about that case, other than her statement regarding her specific description because it is the same exact description and I think that it does bear on her credibility. I think the jury at least should know that she essentially said almost identical things about both incidents."
If, in fact, as appears from the discussion set forth above, the defendant in the Los Angeles County case was convicted, Jane's accusation against another was established to be true. Thus, the accusation could have no bearing on her credibility (People v. Tidwell, supra, 163 Cal.App.4th at p. 1457), and counsel could rationally have determined that an attempt to introduce the evidence would have been futile (see People v. Thompson (2010) 49 Cal.4th 79, 122 ["Counsel is not ineffective for failing to make frivolous or futile motions."]).
We therefore reject defendant's argument that he received ineffective assistance of counsel.
D. Consecutive Terms
Defendant contends the trial court erred by sentencing him to consecutive terms. He argues the trial court mistakenly believed it did not have discretion to impose concurrent terms.
1. Additional Background
The probation report recommended consecutive sentencing, and the probation report listed as factors affecting concurrent or consecutive sentencing that the crimes were independent and involved the same victim on separate occasions.
At the sentencing hearing, defense counsel requested concurrent terms. The prosecutor responded: "As the Court is well aware from the facts at trial, these are separate acts committed upon the victim and also the fact that the defendant has a prior conviction of [section] 288, the Court is required to run the counts consecutive as set forth in the probation report as mandated by law.
The trial court stated: "With respect to circumstances affecting the concurrent or consecutive sentences, the Court finds that the crimes were predominantly independent of each other and were committed at different times and separate places. Defendant was previously convicted of multiple crimes and the Court, under [California Rules of Court,] Rule 4.426, will select consecutive sentences. Defendant was on a grant of parole when the crime was committed and his prior performance on parole was unsatisfactory."
2. Analysis
The current version of section 667.61 requires consecutive sentences when listed sexual crimes involve separate victims or the same victim on separate occasions, and the listed crimes include violations of section 288, subdivision (a). (§ 667.61, subds. (c), (i).) However, as the People acknowledge, when defendant committed his offenses, the decision to impose consecutive or concurrent sentences for recidivist violations of section 288, subdivision (a) was left to the discretion of the trial court. (See People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262 [Fourth Dist., Div. Two].)
Defendant argues it was "far from clear on the record that the trial court was aware of its discretion to impose concurrent terms." We disagree. Rather than presuming error, we presume that "official duty has been regularly performed" (Evid. Code, § 664) and that the trial court followed established law (People v. Coddington (2000) 23 Cal.4th 529, overruled on another ground by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13. Here, the trial court stated that it would "select consecutive sentences." (Italics added.) The court's use of the word "select" shows it was well aware it had a choice between consecutive and concurrent. Moreover, the trial court stated reasons for that choice: the court noted that the two offenses were independent of each other and were committed at different times and places and that defendant was on parole when he committed the offenses, all of which are factors relevant to the determination whether to impose consecutive or concurrent terms. (Cal. Rules of Court, rule 4.425.) We conclude the record demonstrates no error, and the trial court properly exercised its discretion in imposing consecutive terms.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
RICHLI
J.
CODRINGTON
J.