Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 03SF0382, Richard M. King, Judge.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
Lester Allen Yocum appeals from the judgment sending him to prison for 13 years, four months after a jury convicted him of one count of continuous sexual abuse of his natural daughter (Pen. Code, § 288.5, subd. (a)), two counts of oral copulation of a minor under the age of 18 (§ 288a, subd. (b)(1)), and a special allegation making him ineligible for probation because the sexual abuse in count one included substantial sexual conduct (§ 1203.066, subd. (a)(8)). On appeal, he makes a myriad of contentions: (1) The trial court erred when it permitted the prosecutor to amend the information during trial; (2) the trial court erred when it barred certain questions during the victim’s cross-examination; (3) the prosecutor erred in her argument to the jury; (4) the trial court erred in instructing the jury with CALJIC No. 2.50.01; (5) section 1108, permitting “other crimes” evidence to prove propensity, was unconstitutional; (6) the trial court erred in denying Yocum’s motion for new trial; (7) the sentencing court erred in imposing a $20 court security fee under section 1465.8, subdivision (a); and (8) the sentencing court erred in employing a sentencing scheme that used facts relevant to the oral copulation counts in imposing the term for the continuous sexual abuse. We reject all but one of these contentions and affirm the judgment as to the principal term and its special allegation but reverse the judgment on the two subordinate counts of oral copulation with a minor under 18.
All further section references are to the Penal Code unless otherwise stated.
The sentencing scheme accorded the middle term of 12 years for the continuous sexual abuse count as the principal term, with the additional consecutive terms of one-third the two-year midterms for each of the counts of oral copulation with a minor under 18. The special allegation resulted in rendering Yocum ineligible for probation.
FACTS
L.Y. was the natural daughter of Yocum and his wife, B.Y. At the time of trial, L.Y. was 20 years old, but she was 10 years old when Yocum began fondling her. Initially, the acts were massages in which Yocum would rub L.Y.’s legs and back, but very soon he would extend the massages to include rubbing her genitals under her clothes. L.Y. would tell him to stop, but he would ignore these requests and immediately recommence massaging her genitals. At age 10, she was afraid to tell anyone, fearing it would break up her family.
L.Y.’s mother traveled a lot for her employment as a salesperson for an electronics company. Yocum was unemployed during most of this time, bringing very little money into the family, and the family’s finances were totally dependent on B.Y.’s steady salary, boosted by her sales commissions.
L.Y. could not give an exact number as to how many times these sessions occurred, but at least once a month during her early preadolescence. As she grew up, Yocum’s actions became more extreme. He would expose his erect penis to her while they were in the Jacuzzi, he would insist she shower with him and wash his genitals, and he once insisted she rub his penis, telling her he was giving her a “sexual education.”
When she was about 14, she was alone in the master bathroom shaving her pubic hair around a bikini line. Yocum entered the closed room, applied shaving cream to the hair around her labia and shaved it while she sat on the counter. B.Y. later became angry when she saw the items on the counter moved and inquired of Yocum what had occurred. She was suspicious because Yocum had shaved her pubic hair, but she did not think the situation with L.Y. had gone any further than that. B.Y. was adamant that such conduct was unacceptable between a father and daughter. Nonetheless, Yocum repeated such encounters when L.Y. was alone in a bathroom, and once he rubbed his genitals against hers until she demanded he leave.
Around her 16th birthday, L.Y. was sleeping in the bonus room because her bedroom was being redecorated. Yocum entered the room, began stroking her and then orally copulated her. Again, L.Y. told him to stop, and he left, but repeated this behavior a short time after she returned to her own room. L.Y. told him adamantly that she could not stand it anymore. Yocum told her he would stop touching her but only if she allowed him to stimulate her to climax one last time. L.Y. felt sickened by the act, embarrassed and helpless.
After leaving home to attend college in Oregon, L.Y. reached several personal decisions, one of which was to tell her mother that she was a homosexual. This revelation resulted in several heated arguments with her father in which he told her she disgusted him because of her sexual orientation. He also threatened to cut off the money the family provided towards her college education. She responded by threatening to reveal the years of sexual abuse she had endured at his hand. His response was to merely say, “go ahead.”
L.Y. waited until she had prepared herself psychologically for the moment. On the way home from a family outing, she disclosed the problem to her mother, who, although very disturbed, listened to and believed L.Y. Afterwards, L.Y. returned to college, and B.Y. confronted Yocum. Yocum explained that it was L.Y. who always insisted on sexual play, and that he only touched her after she had established the pattern. He admitted that the two of them eventually had oral sex, but justified it as acceptable since no penetration occurred. Moreover, he accused B.Y. to be the cause of his sexual relationship with L.Y. because B.Y. allegedly had driven a wedge between him and his daughter. He only felt close to L.Y. through sexual actions after B.Y.’s behavior. B.Y. insisted Yocum move out of the home and initiated divorce proceedings. A short time later, she discovered a note by Yocum, apologizing for molesting L.Y., confessing that he was seriously depressed, and wanting to repair his relationship with B.Y.
After the separation, L.Y. telephoned her home to talk with her mother, but was surprised when Yocum answered the phone. He confided in her that he was having a difficult time adjusting to living with his mother as his childhood had been so “rough.” He admitted to the oral copulation, but insisted it only happened once. He denied that anything of a sexual nature occurred when she was “young,” and warned her that if she went to the police, he would deny everything because he was afraid of going to jail.
Four days later, she reported it to the police. At their behest, she again telephoned Yocum, and the ensuing conversation was tape recorded. He again admitted to the oral copulation and also admitted to other types of molestation that occurred at about the same time. He conceded that he had no control over his urge to molest her, and that the only bond they had between them was a sexual one. At about the same time, he sent L.Y. a letter in which he reiterated his lack of control and admitted he was “sick.”
Because her parents paid for a large portion of her college expenses, L.Y. was concerned when Yocum had threatened to cut off all funds during their conversation about her homosexuality. On the other hand, L.Y. felt confident that her mother would not abandon her entirely, and L.Y. knew that her mother controlled the family’s finances. L.Y. expressly denied fabricating the charges as a response to Yocum’s threat to cut off her college funds after she revealed she was gay.
The Yocums paid between $6,000 and $10,000 annually towards L.Y.’s college education which supplemented the scholarship she received for half of her tuition and her federal grants for books and expenses. Additionally, L.Y. worked on campus as an intramural referee, receiving about $200 a month.
DISCUSSION
A. Amendment of the Information
Yocum argues that the trial court seriously erred when it permitted the prosecution to amend the information at the end of the prosecution’s case-in-chief to “conform to the proof.” (See § 1009.) The amendment added two counts of oral copulation with a minor under the age of 18, pursuant to section 288a, subdivision (b)(1)—instead of 16, as already charged in counts 2 and 3 pursuant to section 288a, subdivision (b)(2)—on the dates between May 24, 2000 and July 1, 2000. These changes were necessitated by Yocum’s belated production of a receipt that showed that L.Y.’s new bedroom furniture was ordered on June 18, 2000 and was delivered on June 23, 2000. Because L.Y. testified that the first act of oral copulation occurred while her bedroom was being redecorated and the second act occurred after her new furniture arrived, this receipt established that the acts of oral copulation occurred after her 16th birthday on June 12, 2000.
The defense objected to the amendment, having already brought a motion under section 1118.1 to dismiss the original information for insufficient evidence. This motion was granted in part as to count 3, leaving counts 1, 2, 4 and 5 of the amended information. The prosecution then brought a motion to dismiss count 2 which was granted, leaving only counts 1, 4 and 5 of the amended information.
The trial court declared at the sentencing that it had granted the section 1118.1 motion as to both counts 2 and 3, although the clerk’s transcript records the court granted the motion as to count 2 and then separately granted the prosecution’s motion to dismiss count 3.
Section 1009 permits “an amendment of an . . . information . . . for any defect or insufficiency, at any stage of the proceedings. . . . [If granted,] the defendant shall be required to plead to such amendment . . . forthwith, . . . unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted. . . .[A]n information [cannot be amended] so as to charge an offense not shown by the evidence taken at the preliminary examination. . . .” (Italics added.)
A trial court carries broad discretion to permit or deny an amendment, although such a request must be denied if the “defendant’s substantial rights” are prejudiced by a mid-trial modification of the information. (People v. Birks (1998) 19 Cal.4th 108, 129.) Thus, a trial court’s decision regarding an amendment must be upheld on appeal unless a “clear abuse of discretion” is shown. (See People v. Bolden (1996) 44 Cal.App.4th 707, 716.)
Yocum concedes that mere technical changes to an information regarding the dates or sites of the charged offenses do not result in prejudice to a defendant. Nonetheless, he argues that this amendment was neither a mere date clarification nor technical modification of the offense: It actually resulted in adding two new crimes, and it thus eliminated his planned defense. He knew L.Y. was already 16 when the alleged oral copulation took place based on the proof in the receipt, and thus the two charges of oral copulation with a minor under 16 could not be proved. His motion under section 1118.1 should have been granted as to counts 2 and 3. By permitting the amendment, he was denied the dismissal of two of the three charges he faced, and for which he tactically prepared. In summary, the amendment of the information deprived him of his planned defense to the majority of the case.
The Attorney General responds that, although the defense objected to the amendment, it conceded that Yocum’s substantial rights were not impaired by the amendment. Without the impairment of a defendant’s substantial rights, no abuse can be shown by the court’s permitting the amendment, argues the Attorney General, citing People v. Witt (1975) 53 Cal.App.3d 154, 164-165.
However, that conclusory statement is not what Witt specifically holds. Witt held that section 1009 permits an amendment to an information at any time “to correct any defect or insufficiency . . . provided the amendment does not change the offense charged by the original information to one not shown by the evidence taken at the preliminary examination. If the substantial rights of the defendant would be prejudiced by the amendment, a reasonable postponement not longer than the ends of justice require may be granted.” (People v. Witt, supra, 53 Cal.App.3d at pp. 164-165, emphasis added.)
In other words, section 1009 bars any amendment which changes the offense from that which was shown by the evidence taken at the preliminary examination. It permits an amendment which does not change the offense from that which was shown by the preliminary hearing evidence. Even if the defendant’s substantial rights are affected—thus requiring a reasonable continuance to give the defendant an opportunity to respond—an amendment is permitted as long as the actual offense is not changed from that shown by the evidence at the preliminary hearing. (See 4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000), Pretrial Proceedings, §§ 217-218, pp. 422-425.)
In this case, however, Yocum waived his preliminary hearing. Therefore, any amendment that changed the specific charges listed in the original complaint was barred under section 1009. In People v. Winters (1990) 221 Cal.App.3d 997, this very rule was tested when, after an information was amended to charge a count of transportation of methamphetamine at the close of the prosecution’s case for possession of methamphetamine for sale, Winters emphasized that he had waived a preliminary hearing on the original possession charge. Because section “1009 specifically proscribes amending an information to charge an offense not shown by the evidence taken at the preliminary hearing” (id. at p. 1007), no new or different offense can be added to an information following a waiver of the preliminary hearing. As noted in Winters, “no case authority [exists] which would allow, over objection, an amendment to the information to add [another] count” when there has been such a waiver. (Ibid.; see also People v. Burnett (1999) 71 Cal.App.4th 151, 170-171; People v. Pitts (1990) 223 Cal.App.3d 606, 904-908.)
The Attorney General attempts to distinguish the Winters-Burnett-Pitts cases by arguing that the two counts of oral copulation with a minor under 18 were essentially the same crime as the two counts of oral copulation with a minor under 16 by a person over 21 years. Thus, the change was a mere technical clarification of the information and did not result in any prejudice to Yocum, as evidenced by the defense counsel’s concession that no “substantial rights” were affected.
The argument, however, reveals its own weakness: To be identical, the elements of the added charge must be identical to those of the original crime. In this case, even the Attorney General notes that one crime required proof of the victim’s age to be under 16 whereas the other crime required proof of the victim’s age to be under 18. This distinction was important, at least to the Legislature which chose to specifically delineate the two crimes based on the victim’s age and which accorded different potential punishments based on this difference. Finally, there was an additional element disparity between the two charges: Section 288a, subdivision (b)(2) required proof that the perpetrator was over the age of 21 years and proof that the victim was under the age of 16 years. The charge for which Yocum was eventually convicted after amendment—section 288a, subdivision (b)(1)—required only proof that the victim was under 18 years with no element relating to the perpetrator’s age at all. The crimes were not the same.
Section 288a, subdivision (b)(1) carries a sentencing range as a felony of 16 months, two or three years, but can be charged as a misdemeanor with a standard term of one year in the county jail. Section 288a, subdivision (b)(2), however, cannot be charged as a misdemeanor under any circumstance and carries a state prison term range of 16 months, two or three years.
In a final summation, the Attorney General emphasizes that Yocum was not surprised by the late change “because appellant was on notice as to the charges against him and he had a meaningful opportunity to defend against them.” However, the issue of notice is not definitive when there has been no preliminary hearing to precede the trial. In Winters, it was conceded that the defendant was aware of the facts underlying both the original charge and the added charge—and was thus on notice of the added charge—but “[i]t seems to us that is not the point nor helpful to respondent.” (People v. Winters, supra, 221 Cal.App.3d at 1007.) Section 1009 is the sole statutory authority for amendments to the pleadings and provides the power for such amendment in conformity with the statutes providing a criminal defendant with the due process protection afforded by a preliminary hearing or grand jury indictment. “These proceedings are essential to confer jurisdiction upon the court before whom he is placed on trial. To say that he was accorded a fair trial upon an information filed against him without a substantial compliance with these jurisdictional requirements, and, therefore, that there had been no miscarriage of justice, hardly meets the situation. . . . Such practice would result, in legal effect, in wiping out all provisions of the Constitution and the Penal Code providing for a preliminary examination, and in clothing the district attorney with unlimited authority to file [an] information against whomsoever in his judgment he might consider guilty of crime. We do not believe that it was ever the intention to extend the scope . . . of the Constitution to any such limits.’ [Citation.]” (Ibid.)
As was done in Winters under the same circumstances, we are required to reverse the judgment and conviction as to the two added charges of section 288a, subdivision (b)(1). (People v. Winters, supra, 221 Cal.App.3d at 1008; cf. Hegler v. Borg (9th Cir. 1995) 50 F.3d 1472, 1476 [such error is structural, and not subject to harmless error analysis].) This reversal does not affect the judgment as to the single count of section 288.5, subdivision (a) and its accompanying special allegation. (See People v. Winters, supra, 221 Cal.App.3d at pp. 1007-1008.)
B. Restrictions on Cross-Examination
In the defense’s cross-examination of L.Y., she was asked what her high school girlfriend’s mother did for a living. This question was objected to, and the objection was sustained, on grounds it was irrelevant. On another occasion, the defense sought to question L.Y. whether she had reached orgasm during any of these sessions with her father, but this inquiry was likewise excluded on grounds that such information was irrelevant. Yocum now contends these exclusions were an undue restriction on his right to fully cross-examine the complaining victim-witness because her credibility was pivotally important. He avers that the girlfriend’s mother was a police officer, and if L.Y. had confided in the girlfriend that her father molested her—as she testified—then assuredly the girlfriend would have informed her mother. As no report had ever been made during her high school years, L.Y. was therefore lying and this falsehood should be revealed to the jury. As to the sexual gratification issue, he contends that if L.Y. denied ever having reached orgasm with her father in the past, then her testimony that Yocum agreed to stop orally copulating her if she would permit him to “make her come one last time” was untrue. If so, then perhaps her entire accusation was untrue.
A trial court has broad discretion in controlling the admission of evidence. Only relevant evidence is admissible (see Evid. Code, § 350), and the decision regarding the admission of evidence on relevancy grounds will not be disturbed on appeal unless shown to have been made in “‘an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ [Citation.]” (People v. Brown (2003) 31 Cal.4th 518, 534.)
Relevant evidence is defined as “evidence, including evidence relevant to the credibility of a witness . . . 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.)
Neither line of inquiry reflects any “tendency in reason to prove” L.Y.’s credibility. (Emphasis added.) Her girlfriend’s mother was employed by the University of California at Irvine campus police department, and there was no evidence that she was a trained peace officer with knowledge of the reporting responsibilities over sexual offenses. Moreover, the issue would only have been relevant at all had the girlfriend testified that she had or had not disclosed this confidential information to her mother.
As to the second line of inquiry, the trial court had a duty to “protect the witness from undue harassment or embarrassment” pursuant to Evidence Code section 765, subdivision (a). As the inquiry was not premised on any coherent or actual fear that L.Y. had fabricated the testimony, but upon a speculative desire to “explore” the possibility of some fabrication, the trial court exercised its discretion in a reasonable way. Full and complete cross-examination of L.Y. was permitted as to all relevant matters.
Evidence Code section 765, subdivision (a) provides that the “court shall exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and to protect the witness from undue harassment or embarrassment.”
Cross-examination and re-cross-examination of L.Y. consumed 99 pages of transcript in comparison with direct and redirect examination which consumed only 74 pages. Moreover, from this testimony, the jury was informed of several errors which L.Y. committed in her handwritten notes she prepared as compared with the initial police report she gave and her actual testimony. Finally, L.Y. discussed the accusations and threats made by Yocum and her throughout the years which showed the family dysfunction was shared between them both.
Finally, Yocum argues these evidentiary rulings resulted in a miscarriage of justice because he characterizes the prosecution’s case as limited to L.Y.’s testimony. That is inaccurate. Yocum’s own statements to his wife were highly probative and persuasive in proving the charges that he molested his own daughter. His statements recorded from the telephone call with his daughter and the letter he sent to her later were even more convincing. No error, much less one resulting in a miscarriage of justice, has been shown.
In the alternative, Yocum contends these restrictions denied him the right to due process because it prevented him from fully presenting his defense, citing Delaware v. Van Arsdall (1986) 475 U.S. 673. In Van Arsdall, the Supreme Court emphasized the importance of cross-examination of all prosecution witnesses. (Id. at p. 680.) Specifically, it held that a violation of the confrontation clause occurs when a defendant is barred “from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby ‘to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.’” (Ibid.)
In Van Arsdall, the trial court barred the defendant from inquiring of a prosecution witness whether he was biased in favor of the prosecution after it had dismissed his separate drunk-in-public case in exchange for his testimony against the defendant. (Delaware v. Van Arsdall, supra, 475 U.S. at pp. 676-677.) The crux of the case was that the entire topic regarding the witness’s motivation in testifying was excluded. As it was the only evidence relevant to “‘the exposure of [that] witness’[s] motivation in testifying . . .’” (id. at pp. 678-679), to bar any and all inquiry infringed on the defendant’s right to confront and cross-examine adverse witnesses. (Id. at 679.)
On the other hand, trial courts “retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’[s] safety, or interrogation that is repetitive or only marginally relevant. And as [the Court] observed earlier [that] Term, ‘the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ [Citation] (emphasis in original).” (Delaware v. Van Arsdall, supra, 475 U.S. at 679.)
This balancing of interests is pertinent to the case before us. Yocum complains he was not able to fully cross-examine his daughter and thus, he was denied his right to confront adverse witnesses. It is not a fair characterization of the situation, however. He fully cross-examined her on all possible areas of bias, perception or memory, and motivations for testifying. He was limited, however, in his inquiries to relevant topics, which remained an area in which the trial court retained its power to control as only relevant evidence is admissible. No error occurred here.
C. Prosecutorial Error in Argument
Yocum notes the prosecutor committed misconduct in her argument when she made sarcastic references to him, such as “what a great guy” and “what a dad.” Later, she characterized his behavior as “charming” and his status as not “working or making any money.” Finally, she described him as an “idiot,” “seriously deranged,” and “sick.”
The initial references were not injurious or derogatory: They may have been sarcastic or ironic, but not necessarily insulting, degrading or false. As such, they were not beyond the boundaries of normal and permissible argument. (See People v. Samayoa (1997) 15 Cal.4th 795, 844.) As for his status of being unemployed, it was true and not characterized in an impugning manner. Two of the three latter epithets were disparaging. On the other hand, no objection was entered to any of them which was essential to preserve the issue for appellate review. (See People v. Panah (2005) 35 Cal.4th 395, 462.)
As summarized in Samayoa, a “prosecution’s comments and argument of which defendant complains [such as calling the defendant a liar], whether considered singly or together, did not render the . . . trial fundamentally unfair, or amount to a deceptive or reprehensible means of persuasion as to which there is a reasonable likelihood the jury was misled. Thus, we find no prejudicial misconduct.” (People v. Samayoa, supra, 15 Cal.4th at p. 844.)
The third reference—calling Yocum “sick”—was not the prosecutor’s language. She employed the word that Yocum used in referring to himself in a letter he sent to L.Y. and which was read to the jury. As such, it was appropriate for use in argument as it was admitted evidence.
Yocum responds that there are two exceptions to this objection requirement: If “the objection and/or request for an admonition would have been futile, or [] the admonition would have been insufficient to cure the harm occasioned by the misconduct. . .” (ibid.), the failure to object is excused. But neither of these situations applies here, as a simple admonition would have both stopped the prosecutor from trying to disparage the defendant and would have reminded the jury that any “statements made by the attorneys during the trial are not evidence. . . .” (CALJIC No. 1.02, as given.)
Yocum replies that he will merely be forced to raise the issue of his trial attorney’s incompetency via a writ if he is not permitted to press this point on appeal. (See e.g. People v. Cox (1991) 53 Cal.3d 618, 682.) However, “‘a mere failure to object to evidence or argument seldom establishes counsel’s incompetence’[.]” (People v. Wharton (1991) 53 Cal.3d 522, 567.) Nonetheless, we will address the two references—that he was an idiot and seriously deranged—on their merits to forestall the threatened petition for writ of habeas corpus.
There are certain established rules we must bear in mind in such a review. “‘It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] . . .’ ‘A prosecutor may “vigorously argue his case and is not limited to ‘Chesterfieldian politeness’” [citation], and he may “use appropriate epithets warranted by the evidence.”’ [Citations.]” (People v. Wharton, supra, 53 Cal.3d at 567-568.) In this instance, Yocum referred to himself as sick, which provided the necessary factual support for the prosecutor to invoke the “deranged” metaphor.
The use of the word, idiot, however, is a rather strong exaggeration of someone who would blame others for his own criminal conduct. Nonetheless, “[a]ny error arising from the prosecutor’s passing comment that defendant was [an idiot was harmless, as it is not reasonably possible that the outcome of the [trial] would have been different had the comment not been made. [Citation.]” (People v. Hines (1997) 15 Cal.4th 997, 1062.) Thus, assuming it was a single instance of error, it was harmless.
The term, idiot, is not by any means equivalent to the epithets used in reversed cases, such as “an animal” (Darden v. Wainwright (1986) 477 U.S. 168, 179), “despicable beast” (People v. Talle (1952) 11 Cal.App.2d 650, 676-677), “monster” (People v. Sanders (1995) 11 Cal.4th 475, 527-528), “mad dog” or “primal man at his most basic.” (E.g., Miller v. Lockhart (D. Ark. 1994) 861 F.Supp. 1425, 1431.)
In Hines, the prosecutor referred to the defendant as a “‘drug trafficker and . . . a runner’” in the capital trial for two robbery-murders committed on a mother and grown daughter who were at home when Hines burglarized it for a pink, replica Model-T Ford roadster. (People v. Hines, supra, 15 Cal.4th at pp. 1015-1016 & p. 1062.) It should be noted that he was not charged with narcotics sales or possession. Nonetheless, the reference was deemed to be harmless, albeit erroneous.
D. Jury Instruction (CALJIC No. 2.50.01)
Yocum challenges the constitutionality of the statement of law as found in CALJIC No. 2.50.01—drawn from Evidence Code section 1108—to wit: “If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime or crimes of which he is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime. [¶] Unless you are otherwise instructed, you must not consider this evidence for any other purpose.”
We are bound by the California Supreme Court’s determination that the instruction adequately and correctly reflects the law (see People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016, see also People v. Mullens (2004) 119 Cal.App.4th 648, 668), under the doctrine of stare decisis. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
E. Constitutionality of Section 1108
Yocum contends that the provisions of section 1108, permitting the evidence of other sexual crimes to prove a propensity to commit such sexual offenses, are unconstitutional, notwithstanding the analyses and holdings of People v. Falsetta (1999) 21 Cal.4th 903, 917 and People v. Fitch (1997) 55 Cal.App.4th 172, 184, which found otherwise. He proposes that the basis for the Falsetta opinion must be reconsidered in light of Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769 in which propensity evidence was found to deny a defendant of due process.
We note as a preliminary matter that Yocum never raised the constitutional challenge below and therefore has waived it. (See People v. Vichroy (1999) 76 Cal.App.4th 92, 97.) We also note that we are bound by precedent established by the authority of our Supreme Court. (See Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at 455.) Finally, we emphasize that Yocum faces judgment for a single count of continuous sexual abuse but faced trial on two other counts of oral copulation with a minor. His argument fails to specify what evidence he proposes to be “the uncharged acts [which] were virtually identical to those charged except that they occurred outside the time period alleged in the amended information.” But for the evidence of sexual offenses admitted to prove the two counts of oral copulation with a minor under 18, there was no “other crimes” evidence admitted to prove his propensity to commit the three sexual offenses comprising the elements of “continuous sexual abuse” between June 1, 1997 and June 11, 1998. Between those dates, the only acts which occurred—based on L.Y.’s testimony—were the massages of L.Y.’s genitals. All the other acts were committed subsequent to that timeframe and were of distinctly different varieties of sexual offenses: oral copulation, exposure of Yocum’s genitals, requests to massage Yocum’s genitals, rubbing L.Y.’s genitals with Yocum’s genitals, and shaving L.Y.’s pubic hair. Thus, the potential harm of the admission of “other crimes” evidence to prove propensity becomes very tenuous. Without more specific clarification of exactly what acts Yocum deems to be the “uncharged acts” which might have been misused as proof of the “charged sexual offenses,” his argument fails.
F. Motion for New Trial
Yocum argues that the trial court seriously erred when it denied his motion for new trial based on ineffective assistance of trial counsel, which was brought and argued by newly appointed counsel. In the motion, Yocum averred that his trial counsel had to have been incompetent for failing to discover that L.Y. filed a civil lawsuit against Yocum on June 11, 2004, about six months before the criminal trial commenced. Yocum was not served with these papers until January 26, 2005, a week after the verdict was returned on the criminal charges. In the post-verdict hearing on the motion to withdraw filed by trial counsel, she alleged she had assigned an investigator to search the civil records in the local court for any lawsuits involving L.Y., B.Y. or Yocum. However, trial counsel never learned of such a lawsuit, and—according to the attorney—the investigator failed to provide any computer documentation that such a search was ever conducted. Thus, L.Y. was never confronted with the fact that her civil lawsuit constituted possible evidence of a monetary motivation for her testimony in the criminal case; and the service on the civil lawsuit provided the basis for a motion that new evidence relevant to the criminal charges had been discovered after the verdict but before imposition of judgment.
Opening statements by both parties were given on January 11, 2005, and the first witness was sworn on that same day.
The trial court concluded that the failure to personally investigate and find the civil suit was not deficient performance per se by a criminal defense attorney, and that to prevail on such a motion, expert testimony on the issue was essential. Irrespective of the deficient performance issue, the trial court concluded that the absence of this information to impeach L.Y. at trial did not prejudice Yocum: The jury heard that L.Y. reported the crime to the authorities after Yocum threatened to cut her off financially as a response to her revelation that she was a lesbian. Thus, L.Y.’s possible monetary motivations behind the charges were well presented although the civil lawsuit was not mentioned. Lastly, the trial court emphasized that the prosecution’s case of child molestation was a particularly strong one: Yocum’s admissions to both L.Y. and B.Y.—via letters, recorded phone conversations and emails—provided substantial support to L.Y.’s testimony, even after the various inconsistencies in her statements were noted and all possible biases were considered. Therefore, the motion was denied under both grounds: ineffective assistance of counsel and newly discovered evidence.
“The Sixth Amendment guarantees competent representation by counsel for criminal defendants.” (People v. Holt (1997) 15 Cal.4th 619, 703.) When counsel’s representation falls below that of a reasonable professional, the issue may be raised and presented in a motion for new trial, irrespective of the absence of that ground in the authorizing statute, section 1181. (See People v. Lagunas (1994) 8 Cal.4th 1030, 1036.)
The two-pronged test for a claim of ineffective assistance of counsel has been often stated. Under federal analysis, it is framed thusly: Did counsel’s performance fall below an objective standard of reasonableness “under prevailing professional norms[,]” for which there is a “reasonable probability” of a more favorable result had that error not occurred? (Strickland v. Washington (1984) 466 U.S. 668, 688 & 695.) Under California law, it is phrased as follows: Were counsel’s acts or omissions not consistent with those of a reasonably competent attorney “acting as [a] diligent advocate[,]” and did they result in the withdrawal of a potentially meritorious defense? (People v. Pope (1979) 23 Cal.3d 412, 425.)
Yocum argues on appeal from the motion’s denial that counsel’s failure to personally investigate the existence of the civil suit seriously undermines any confidence in the verdict. He cites three federal circuit cases in which a failure to adequately investigate resulted in the reversals of the convictions: Reynoso v. Giurbino (9th Cir. 2006) 462 F.3d 1099, 1104-1112-1114; Daniels v. Woodford (9th Cir. 2005) 428 F.3d 1181, 1202; Lord v. Wood (9th Cir. 1998) 184 F.3d 1083, 1093.
The Attorney General responds that a reviewing court “must in hindsight give great deference to [trial] counsel’s tactical decisions[,]. . .” particularly when “many of defendant’s contentions appear to represent nothing more than alternatives which present counsel, blessed with hindsight and aware of the failure of trial counsel’s tactics, believes might have offered a stronger defense.” (People v. Holt, supra, 15 Cal.4th at pp. 703-704.)
All three of the cases Yocum relies on are factually distinguishable from the situation before us. In Reynoso v. Giurbino, supra, 462 F.3d 1099, Circuit Judges Reinhardt and Wardlaw—with Trott dissenting—upheld a federal district court’s issuance of a habeas corpus writ to Reynoso after his conviction for the robbery murder of a convenience store owner’s wife. The opinion affirmed the issuance of the writ after holding Reynoso’s trial attorney had failed to adequately investigate and impeach the four prosecution witnesses with reward money that had been paid to them after conviction. Trial counsel had cross-examined one of the four witnesses regarding the reward money, and another witness had been questioned about it on direct examination. However, both eyewitnesses at the scene received funds for testifying against Reynoso, yet were never questioned about those funds or their motivation in belatedly coming forward. Trial counsel gave inconsistent explanations for her tactics: She argued the prosecutor failed to tell her that the two eyewitnesses were aware of, and had received reward money, although the prosecutor, who was found by the federal magistrate judge to be “particularly credible,” insisted that the reward was “‘common knowledge’” and that the two attorneys had discussed the fact that all the witnesses knew of the reward. (Id. at p.1111.) Defense counsel also initially stated she would not have impeached them with this information had she known of it because she felt her attack on their memory and perception was a stronger avenue to destroy their testimony than the city’s public reward. Later, at the evidentiary hearing in federal court, she changed her position, averring that an additional attack based on the monetary motivation to testify would have complemented the cross-examination strategy. However, she never interviewed the two eyewitnesses and therefore never learned of their receipt of money. In light of counsel’s knowledge that there was a public reward for which the other witnesses received recompense, “counsel cannot be said to have made a tactical decision [regarding the eyewitnesses’ cross-examination] without first procuring the information necessary to make such a decision” in this case. (Id. at p. 1112.) Finally, this error was prejudicial because the case was a very old, thinly developed circumstantial case premised on shaky identification and biased reporting; and one of the two witnesses who testified hearing Reynoso admit to the crime, recanted after the conviction. (Id. at pp. 1116-1117.)
One of the eyewitnesses was under the influence of crack cocaine and alcohol at the time of the incident, and was deceased by the time of the evidentiary hearing on the writ. (See Reynoso v. Giurbino, supra, 462F.3d at p. 1105.) The other eyewitness did not contact the police at all for three years, and when he did, he merely confirmed that the suspect’s picture in the newspaper looked like the man he saw in the store just before the murder. (Id. at pp. 1104-1105.)
Similarly, in Daniels v. Woodford, supra, 428 F.3d 1181, Daniels was convicted in state court of two counts of murdering police officers who were attempting to serve an arrest warrant on him after his earlier appeal for a robbery conviction was rejected; he was given the death penalty. (Id. at p. 1186.) Although a conflict was present, the public defender’s office declined to admit to such, and the substitution of counsel was rejected even though Daniels had a pending petition for habeas alleging ineffective assistance by that office for its representation of him in the robbery matter, which would, by necessity, have to be revealed in the murder case. (Id. at p. 1188.) Although eventually new counsel was appointed, it was not his counsel of choice—who was preparing the defense pro bono due to the court’s refusal to substitute—but a new criminal defense attorney, just recently retired from the district attorney’s office whom Daniels personally distrusted. Thus, on review by the federal court, it was found that Daniels was denied his right to “conflict-free representation[,]” and then “constructively denied counsel” when the newly appointed counsel was unable to communicate at all with him. (Id. at pp.1197-1198.) This resulted in a presumption of prejudice. (Id. at p. 1199.)
Daniels was represented by the same public defender’s office in his robbery case, in which he entered a guilty plea allegedly contingent on his ability to obtain medical care and rehabilitation for the nine gunshot wounds he received in the pursuit from the robbery scene. The deputy public defender failed to record this contingency, Daniels was ignored in all of his pleas for enforcement of this contingency, and the deputy public defender who supposedly negotiated the deal promptly left the office to go work for the District Attorney’s Office! (See Daniels v. Woodford, supra, 428 F.3d at p. 1188.) Nonetheless, Daniels attempted to substitute the public defender’s office with his substitute counsel of choice—the attorney who assisted Daniels in getting the contingency enforced under the plea agreement—but without the public defender’s office declaration of an actual conflict, the court refused the substitution. In a footnote, the federal court noted the head of the public defender’s office was under investigation for declaring conflicts in too many cases, resulting in the county’s expenditure of additional funds for alternate counsel. (Id. at p. 1188, fn. 3.)
Finally, in Lord v. Wood, supra, 184 F.3d 1083, the defense team was found to have deficiently represented a murder defendant after failing to either interview, much less subpoena, three witnesses who had reported seeing the victim the day after defendant had left her. (Id. at pp. 1088-1089.) The explanations proffered for this failure was due to the attorneys’ belief the three witnesses were not credible, without any basis for such an opinion. In light of the complete thinness of the circumstantial case against the defendant, the federal circuit court determined it was reasonably probable that a more favorable result would have occurred had the attorneys properly pursued this line of defense. (Id. at pp. 1094-1096.)
These three cases represent extreme examples of the denial of a fair trial, involving (1) trial counsel’s failure to even talk with pivotal witnesses, (2) trial court’s failure to allow conflict-free counsel, or (3) trial counsel’s failure to even minimally investigate a clear and complete defense to the charge. No such extreme situation exists in the case before us. To the contrary, L.Y.’s testimony was thoroughly explored, and all inconsistencies in dates, frequency of occurrences, discrepancies in the commencement of assaults and their number were fully revealed. Most pertinently, L.Y. was cross-examined as to her potential monetary motivation in reporting the abuse, and yet the jury rejected these attacks because of the overwhelming evidence of guilt, including Yocum’s own confession to the oral copulation charge to L.Y., B.Y. and on the recorded tape. Lastly, Yocum’s repulsive attempts to blame his wife for his own criminal abuse of his daughter did far more to convict him than evidence of the civil suit could have ever helped him. There is no reasonable possibility that, had L.Y. been impeached with the existence of her civil lawsuit, a more favorable result would have ensued.
G. Court Security Fee
At the time for sentence, the trial court imposed a $20.00 court security fee pursuant to section 1465.8, which became effective August 2003, three years after the last charge allegedly took place. Yocum argues this violated his constitutional protection from an ex post facto law. (See U.S. Const., art. I, § 9; Cal. Const., art. I, § 9.)
Section 1465.8 provides, in subdivision (a)(1), “[t]o ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code . . . .” Subdivision (b) added that “[t]his fee shall be in addition to the state penalty assessed pursuant to Section 1464 and may not be included in the base fine to calculate the state penalty assessment as specified in subdivision (a) of Section 1464.” Finally, in subdivision (d), it was stated that “[n]otwithstanding any other provision of law, the fees collected pursuant to subdivision (a) shall all be deposited in a special account in the county treasury and transmitted therefrom monthly to the Controller for deposit in the Trial Court Trust Fund.”
Both the California and United States Constitutions prohibit the passage or application of any law “that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. [] Every law that aggravates a crime, or makes it greater than it was, when committed. [] Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. [] Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence in order to convict the offender.” (Calder v. Bull (1789) 3 U.S. 386, 390; see also Collins v. Youngblood (1990) 497 U.S. 37, 50.)
But, as a sister court has already declared, section 1465.8 does not violate these provisions because it is not penal in nature or effect and was never intended for the purpose of punishment. (People v. Wallace (2004) 120 Cal.App.4th 867, 872-876 [Turner, P.J.]; see also People v. Rivera (1998) 65 Cal.App.4th 705, 709 [“‘a statute is considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose.’”].) The courtroom security fee was designed exclusively to meet budgetary constraints under the omnibus budget bill for 2003 (Wallace, supra, 120 Cal.App.4th at p. 872) and was designed to be applied, not just to criminal defendants after conviction, but also to enumerated civil filings such as probate papers and initial pleadings in limited or unlimited civil actions. (Id. at p. 875.)
Although the legislative intent was incontrovertibly budgetary and not punitive, we still must examine the specific application of the fee for any ex post facto effect. (See People v. Wallace, supra, 120 Cal.App.4th at p. 876; People v. Rivera, supra, 65 Cal.App.4th at 709.) In Wallace, that examination was resolved against the defendant when the court found unequivocally that the fee’s effect was not punitive, nor did it benefit any traditional aim of punishment. (Wallace, supra, 120 Cal.App.4th at 877-878.) This finding, it was stated, was consistent with “other decisions[,]” specifically People v. Rivera, supra, 65 Cal.App.4th 705; Taylor v. State of Rhode Island (1st. Cir. 1996) 101 F.3d 780; Goad v. Florida Dept. of Corrections (Fla. 2003) 845 So.2d 880; Hayden v. State (Ind. Ct. App. 2002) 771 N.E.2d 100; State v. Oliver (Iowa 1998) 588 N.W.2d 412, State v. Likins (1995) 903 P.2d 764; Frazier v. Montana State Dept. of Corrections (1996) 920 P.2d 93. (People v. Wallace, supra, 120 Cal.App.4th at pp. 878-879.)
Even concurring Justice Mosk, who found the “monetary obligation upon conviction pursuant to a Penal Code provision . . . to be a penalty that is subject to the ex post facto laws” conceded that the controlling “authorities support[ed] the conclusion of the majority.” (People v. Wallace, supra, 120 Cal.App.4th at p. 879.)
We agree with the Wallace court analysis and reject Yocum’s characterization of the fee as a punitive fine. We similarly reject Yocum’s characterization of the fee’s imposition to an unauthorized retroactive application of a criminal statute simply because the conviction triggering the fee occurred after the passage of section 1465.8, although the criminal act resulting in the conviction occurred before its passage. Due to the express language of section 1465.8, it is the date of conviction not the date of occurrence that triggers application of the statute, and the conviction occurred well after the law’s effective date.
See section 3 which provides that “[n]o part of [the Penal Code] is retroactive, unless expressly so declared.”
This specific issue is pending before the California Supreme Court in People v. Alford (2006) 137 Cal.App.4th 612 (rev. gr. May 10, 2006). However, the statute quite clearly states that the fee is prospectively applied to all individuals whose convictions in criminal proceedings or filings in the enumerated civil proceedings occurred subsequent to the passage of section 1465.8. As such, no retroactive application is insinuated, created or experienced. (See e.g., People v. Bailey (2002) 101 Cal.App.4th 238, 243 [no retroactive effect when law applies to person “convicted” after effective date although crime occurred before effective date]; see also People v. Adames (1997) 54 Cal.App.4th 198, 214 [“subjecting a [convicted child molester] to AIDS testing is not punishment. . . [even] though, when committed, his offense was not one which triggered the AIDS testing requirement.”]; People v. James (1925) 71 Cal.App. 374 [punishing felons for owning firearms is not ex post facto law as it applies to convictions occurring before the law’s passage].)
H. Improper Reliance of Facts
Yocum contends the sentencing court improperly relied on facts relevant to the oral copulation counts when selecting the term to impose for the principal crime of continuous sexual abuse. Specifically, he focuses on a comment made by the judge at sentencing that the “jurors have come back and the court listened to the evidence that this conduct wasn’t minimal; it was substantial. It was, as the jurors came back, oral copulation over a sustained period of time. [¶] As a consequence, this court will then impose the middle term of 12 years because this court cannot find from the record that mitigation in this case outweighs the aggravating factors. . . .” Yocum decries this misstatement of the record: The continuous sexual abuse between the listed dates was limited to masturbation according to the verdict forms. The two instances of oral copulation were never mentioned as the basis of the substantial sexual conduct allegation in the verdicts, and were reflected solely in the findings for counts 4 and 5. As facts relevant solely to an unrelated count cannot properly be used to aggravate a term (cf. People v. Searle (1989) 213 Cal.App.3d 1091, 1097-1098), Yocum argues he must be returned for resentencing on the principal term of continuous sexual abuse.
Assuming arguendo that the issue was not waived by failing to object at the hearing, the sentencing court did not err in this instance by imposing the then-mandatory middle term. The trial court did not enhance the sentence by relying on facts transactionally unrelated to count one; it imposed the mandatory middle term, expressing his agreement with the jury’s verdict based on facts found in the verdicts for counts 4 and 5. Along with those comments, however, the trial court specifically rejected any arguably mitigating circumstances that might justify the lower term, which was requested by the defense. In rejecting the requested lower term, the sentencing court relied on Yocum’s “violation of trust,” which was directly relevant to all the counts. Moreover, by imposing the middle term, the trial court was not required to state reasons at all for the term, as a statement of reasons is only required if the aggravated or mitigated term is selected instead of the middle term. (See Cal. Rules of Court, rule 4.420(a) & (e); § 1170, subd. (b).)
See People v. Scott (1994) 9 Cal.4th 331, 355 in which it was declared that a defendant waives any error in a discretionary sentencing choice if an objection is not voiced at the hearing.
Yocum responds that it was the contents of the reasons given by the sentencing court that were faulty, not that he was required to give them. He argues that the court should have found that mitigating circumstances were so persuasive that, but for the court’s delusions as to the acts of oral copulation comprising the continuous sexual abuse, it would have necessarily been forced to select the lower term.
It is the trial court’s assessment of weight to mitigating factors that must be examined, not the reasons for imposition of the middle term. The weighing of factors involves both qualitative—and not just quantitative—balancing of the facts, and trial courts are empowered to conduct such a balancing without the expression of a systematic or numerical result. (See People v. Lamb (1988) 206 Cal.App.3d 397, 401.) As the trial court found the violation of trust outweighed any potential mitigation (see People v. Holguin (1989) 213 Cal.App.3d 1308, 1317-1318 [trial court is not required to set forth reasons for rejecting mitigating factor]), its imposition of the presumptively mandatory middle term must be upheld, irrespective of its expressed reasons for rejecting the lower term. (See People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1587-1588 [court has broad discretion in weighing factors and absent evidence of a clear abuse of that discretion, imposition of middle term must be upheld].)
DISPOSITION
The judgment of one-third the middle terms for counts 4 and 5 is reversed, and the convictions for those two counts are dismissed. (See People v. Winters, supra, 221 Cal.App.3d at 1008.) In all other ways, the judgment is affirmed.
WE CONCUR: ARONSON, J., IKOLA, J.