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Contra Costa County Super. Ct. No. 050906792
Lawrence Halbert was convicted of committing a lewd act on a child under 14, enhanced due to his prior felony convictions. He contends his conviction is not supported by the evidence, that the jury panel was irremediably tainted by a prospective juror's internet research, and that the court improperly admitted evidence of his prior sexual crimes. Defendant further contends he was unfairly prejudiced by the posting of a uniformed deputy next to him while he testified. Substantial evidence supports the verdict and the challenged trial court's rulings were proper. We therefore affirm the judgment.
I. Prosecution Evidence
A. The Current Offense
On April 19, 2009, nine-year-old Jane Doe was entering a Costco store with her parents and sister. Her father, Francisco, was behind her. Doe saw defendant leaving the store and walking toward her, carrying a cup in his left hand. When defendant was a few inches away from Doe he switched the cup to his right hand and then, as he passed, reached down with his left hand and grabbed and squeezed Doe's buttocks.
Doe was in shock and walked a few more steps when she heard her father get mad. Defendant tried to leave, but Francisco would not let him.
Francisco testified that he was three or four feet behind Doe as they approached the store's entrance. He saw defendant approach Doe, transfer his cup from his left hand to his right, swing his left hand back and grab and squeeze Doe's bottom.
Francisco stepped in front of defendant and angrily confronted him. Defendant did not respond at first, but then he walked over to Doe and said something to her. Doe looked scared. Another customer called the police while Francisco prevented defendant from leaving. Defendant unlocked his bicycle and tried to ride away, but Francisco grabbed the bike. Defendant then got off the bike and tried to walk away, but a customer and the store manager stopped him.
Concord Police Officer Lisa Capocci arrived and spoke separately to Francisco, Doe, and Doe's mother and sister. Doe said that defendant touched her on the buttocks as he walked past her, and she applied pressure on Officer Capocci's arm to show how defendant had touched her. Doe was trembling and holding back tears during the interview.
B. The Prior Offenses
Defendant was convicted of sexual offenses in 1978, 1980, and 1989. Two of the prior victims testified about the offenses.
In 1978, 11-year-old J.G. was walking home from school. She was wearing her school uniform over gym shorts. Defendant drove by her on a motorcycle, pulled onto the sidewalk and stopped in J.G.'s path. He said his motorcycle had broken down and asked J.G. to help him by holding a button near the ignition. She complied, and bent down to press the button. Defendant moved behind her, put one arm around her waist, reached underneath her skirt and fondled her genitalia over her shorts. J.G. was very scared, started to cry and told him to stop.
After a couple of minutes defendant stopped and rode away. J.G. ran home and told her parents what had happened. The incident resulted in defendant's guilty plea to engaging in lewd conduct in a public place.
In 1980, 15-year-old S.F. was walking home from school when defendant, her father's neighbor, drove up and offered her a ride. She accepted and they drove around, eventually ending up in a deserted hilly area where defendant stopped the car, said he had run out of gas, and left to call a friend for help. When he returned they sat and waited for the friend. After about 45 minutes, defendant threatened S.F., forced her to orally copulate him, raped her, and masturbated with her bra. S.F. eventually escaped and ran to a nearby house for help.
S.F. testified that she always looked young for her age and that she still looked like a child when she was 15. The jury was shown a photograph of S.F. at that age. Defendant entered a guilty plea to forcible rape.
In addition to the testimony of J.G. and S.F., the parties stipulated that in 1989 defendant pleaded guilty to rape and annoying or molesting a child based on a 1987 incident involving G.F.
II. Defense Case
John Valentine was entering the Costco store when he saw the confrontation between Francisco and defendant. He saw Francisco raise his right hand, stick it in defendant's face and say, "Why did you do that?" Defendant looked dumbfounded and did not respond. Francisco said, "You touched my daughter" in a loud and confrontational voice. Francisco's two daughters were looking at him with incredulous expressions.
Defendant testified that he was at Costco to get something to eat. As he left the store he was carrying a soda in his left hand and his sunglasses in his right. He was preoccupied, and did not notice Jane Doe or her family as he was leaving. He moved the soda to his right hand so he could retrieve his bike keys from his left hip, where he thought they were clipped to a belt loop. However, as he reached for his keys he felt them in his right pocket, so he dropped his left hand to his left side in order to switch the soda and his glasses to his left hand. He felt the back of his pinky and ring finger hit something, but he thought it was his own leg.
At that point a man approached him speaking in a loud and angry voice. The man asked defendant why he did that and said something like "she's only eight." Defendant responded to him, also with a raised voice, and then turned to Doe and asked her if he had touched her. Doe looked scared.
Defendant walked to his bike, with Doe's father following him. He briefly attempted to leave on his bike because he was scared, but then he realized that leaving was a bad decision and decided to stay. Doe's father waited next to him until the police arrived.
Defendant admitted that he told police he did not touch Doe, but he said he only meant he did not touch her with sexual intent. He admitted that he is sexually attracted to young girls. He admitted that he molested J.G. and forcibly raped S.F., and that in both cases he was unable to resist his sexual urges. In 1987, when he was 29, defendant picked up 15-year-old hitchhiker, G.F., took her to a motel room, and forcibly raped her.
III. Verdict and Sentence
The jury found defendant guilty as charged and found the prior offense allegations to be true. The court granted defendant's Romero motion to strike two prior "strikes" in the interest of justice and sentenced him to a term of 35 years to life. Defendant timely appealed.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
I. Sufficient Evidence Supports the Verdict
Penal Code section 288, subdivision (a) makes it a felony to commit a lewd or lascivious act on a child under 14. To convict under this provision, the state must prove the defendant's act was accomplished "with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child." (Pen. Code, § 288, subd. (a).) Defendant contends the evidence was insufficient to prove he acted with the required lewd intent. We disagree.
When a defendant challenges the sufficiency of the evidence to support a conviction, we "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which 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.) Here, the evidence of intent had two components: the nature of the touching itself, and defendant's history of sexual offenses against young and young-looking girls. As to the touching, Doe and Francisco testified that defendant grabbed and squeezed Doe's buttocks. Francisco testified that defendant grabbed his daughter's bottom with his whole hand and squeezed with his fingers. It did not look to him like an accident. Doe testified that defendant grabbed her bottom "medium" hard as he walked by and squeezed with his fingers. Their testimony was consistent with Officer Capocci's interview of Doe at the scene. Although defendant claimed he touched Doe accidentally with the back of his pinky and ring finger, the jury plainly, and reasonably, rejected his account and believed Doe's and Francisco's testimony. (See People v. Bohana (2000) 84 Cal.App.4th 360, 368 [we defer to the jury's credibility assessments].)
The People and defendant disagree over whether the nature of the touching is independently sufficient to support a reasonable inference that it was done with sexual intent. We need not decide whether it was because there was other evidence supporting the intent element. Defendant admitted that he is sexually attracted to young girls, and he was previously convicted of molesting 11-year-old J.G. and raping two 15-year-old girls. The episode involving J.G. was similar to the instant offense to the extent that it involved fondling a young girl through her clothes on a public sidewalk. Defendant raped S.F. in a car parked by a public road. Defendant conceded that, in both of those situations, he simply "could not stop [his] urges on a public street."
While it is true that defendant's prior sexual offenses occurred years before the charged offense, the extent and degree to which they shed light on defendant's intent in this instance were questions for the jury, not this court, to decide. (See People v. Boyer (2006) 38 Cal.4th 412, 488; People v. Bohana, supra, 84 Cal.App.4th at p. 369.) Taken as a whole, the evidence amply supports the jury's finding that defendant acted with the required sexual intent.
II. The Court Properly Denied Defendant's Motion to Discharge the Jury Panel
Defendant contends his right to a fair and impartial jury was violated when the trial court denied his motion to dismiss the jury panel, which he claims was tainted by statements made by one of the prospective jurors during voir dire. The contention is meritless.
Early in jury selection, before the court had provided any admonitions to prospective jurors, the court asked a potential juror whether his acquaintance with a retired sheriff's deputy would prevent him from being fair. The following discussion ensued:
"POTENTIAL JUROR: No. But I'm not sure I'll be fair in this particular case. THE COURT: Okay. Can you tell me why?
POTENTIAL JUROR: Background.
THE COURT: When you say background, what do you mean? POTENTIAL JUROR: The defendant's background. THE COURT: Okay. Well, do you know anything about the defendant's background?
POTENTIAL JUROR: Yes.
THE COURT: Do you know the defendant?
POTENTIAL JUROR: No.
THE COURT: Okay. How is it that you know something about the defendant's background?
POTENTIAL JUROR: Internet. THE COURT: You looked it up?
POTENTIAL JUROR: Yup."
At that point the court admonished the prospective jurors that they should not do any independent investigation. It then continued:
"THE COURT: Okay. Mr. Henderson, I want to ask you a couple of questions. [¶] If I gave you an instruction that you are to disregard anything that you found on the internet if you're seated as a juror, and that you're only to consider the evidence that comes in to you through the vehicle of this trial, could you follow that?
POTENTIAL JUROR: Yes.
THE COURT: You could follow that. And do you think if you could follow that, that you could sit as a fair and impartial juror on this case?
POTENTIAL JUROR: I'm not sure."
Outside the presence of the jury panel, defense counsel argued that these answers had tainted the other prospective jurors and asked the court to declare a mistrial and convene a new jury panel. The court denied the motion and stated four reasons for its ruling. "Number one, the jury did not get instructed not to look it up on the internet or do any investigation, so he didn't contravene a specific instruction by the Court. [¶] Number two, the [jury] questionnaire does imply prior convictions. Although we say it's not evidence, that it's not the first time that that idea has been explicitly given to the jury, and by questionnaire that was by agreement of counsel. [¶] And, number three, I would note that prior convictions are coming [in] in this trial anyway, so there's going to be something in front of the jury. [¶] And, number four, I'm not ruling on the challenge for cause, but I did say - I did ask him, you know, could you follow the instructions and only take the evidence that you take through the vehicle of the trial and he said he would."
Defendant eventually exercised a peremptory challenge to dismiss the juror.
"[D]ischarging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant," and the trial court has broad discretion to determine whether or not possible bias or prejudice against the defendant has so severely contaminated the entire venire that its discharge is required. (People v. Medina (1990) 51 Cal.3d 870, 889.) Accordingly, we review the denial of defendant's motion for mistrial and a new jury panel under the abuse of discretion standard. (People v. Woodberry (1970) 10 Cal.App.3d 695, 708; People v. Nguyen (1994) 23 Cal.App.4th 32, 41.)
Defendant contends the prospective juror's comments about his internet research required discharge of the entire jury panel because the other jurors were "left to speculate as to what this horrific information was that made juror no. 18 unable to be fair despite repeated inquiries by the trial court." The court reasonably rejected that contention. The prospective juror gave no specifics about what he found in his research, nothing he said was particularly inflammatory, and he was ultimately dismissed by peremptory challenge. This was simply not one of the "most serious occasions of demonstrated bias or prejudice" that would require dismissal of the entire venire. (People v. Medina, supra, 51 Cal.3d at pp. 888-889 [prospective jurors made statements such as "even his own lawyers think he's guilty," and "they ought to have [ sic] him and get it over with" in front of other jurors; dismissal of venire not required]; see also People v. Nguyen, supra, 23 Cal.App.4th at p. 41 [prospective juror stated he might fear retaliation because defendant was from same ethnic group; court properly denied motion to dismiss venire].) Moreover, the prospective juror's vague comments about defendant's "background" could not conceivably have been prejudicial in light of the details about defendant's prior offenses that were admitted into evidence at trial.
III. The Court Properly Admitted Evidence of Defendant's Prior Sexual Crimes
Defendant argues the court improperly admitted the evidence of his prior sexual offenses against J.G., S.F. and G.F. because it was cumulative, only marginally relevant, and highly inflammatory. While the three incidents occurred many years before the incident involving Jane Doe, and two of them involved more extensive sexual contact, the court's decision to admit all three pursuant to Evidence Code section 1108 was within its discretion.
We note the court excluded evidence of a 1991 parole violation in which defendant pulled up his van next to a five-year-old girl, offered her money, and sped away when the girl's father appeared. The court found the incident was highly probative and not overly inflammatory, but, because it did not result in a conviction, decided the evidence would be unduly distracting.
A. Legal Standards
Under Evidence Code section 1101, evidence of a prior crime is generally inadmissible to prove a defendant's disposition to commit a similar crime. Under section 1108, subdivision (a), however, "[i]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the Supreme Court explained section 352's critical role in safeguarding against the admission of unduly prejudicial evidence of other sexual offenses: "By reason of section 1108, trial courts may no longer deem 'propensity' evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (Id. at pp. 916-917.)
Unless otherwise noted, all further statutory citations are to the Evidence Code.
We review a trial court order denying a defendant's motion to exclude evidence pursuant to section 352 for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 213.) "We will not overturn or disturb a trial court's exercise of its discretion under section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
B. The Ruling
The trial court entertained extensive argument and made a detailed section 352 analysis of the propensity evidence before admitting it. The court noted the evidence was highly probative of "[a] constant predilection to commit sexual offenses against young people, using force when necessary." The court observed that the 1978 offense involving 11-year-old J.G. was the most similar to the charged offense because it involved groping a young girl of a similar age in a public place. The two rape cases involved more extreme sexual conduct, but the court reasoned that the differences did not outweigh their probative value as evidence of a longstanding propensity of the defendant to force various kinds of sexual conduct on young girls.
The court also addressed the remoteness of the prior offenses. "Now, these things are kind of old. Even counting the parole violation, it's 19 years, 22 years, 30 years, 31 years. And the cases are consistent that when things are remote, one factor that makes them more relevant and takes away from the remoteness, is if the defendant has periodically offended in the interim. [¶] Here, you do have that. . . . [¶] [H]ere, I have a combination of periodic offenses over the - over time and enough similarity, which is victim [is] in the same age range and a variety of sex offenses against young girls, forced sex offenses against young girls, that it balances out the remoteness."
Turning to the factor of undue prejudice, the court found the prior offense evidence did not involve the type of conduct that would inflame the jury or evoke a visceral emotional reaction against defendant. Therefore, although the evidence had prejudicial value, it was not unduly prejudicial.
The court's ruling makes plain that it understood its obligations under section 352 and properly weighed the probative value of the propensity testimony against its potential for undue prejudice. The defense theory that defendant had no sexual intent when he touched Doe focused the trial squarely on his state of mind. As the court pointed out, evidence that defendant had been convicted of forcing sexual acts on other young girls was highly probative on that key point. The 1978 offense against J.G. was the most similar to the episode at Costco, involving defendant's opportunistic, apparently impulsive fondling of an 11-year-old girl over her clothes on a public street. Although the offenses against Doe and J.G. were less extreme than the two rapes, both rape victims were just 15 years old when defendant assaulted them; further, one of the victims explained that she "looked like a child" at the time. The court reasonably rejected defendant's contention that the other crimes evidence had little probative value.
The court also reasonably found that the probative value of the evidence was not outweighed by the remoteness of the prior offenses. In People v. Branch (2001) 91 Cal.App.4th 274 we rejected a similar claim concerning a 30-year gap between the prior and charged molestations, and observed that "[n]o specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible." (Id. at p. 284; see also People v. Burns (1987) 189 Cal.App.3d 734, 738 ["[t]here is no consensus among courts as to how remote a conviction must be before it is too remote"].) In People v. Frazier (2001) 89 Cal.App.4th 30, 41 the court found a 15 or 16-year gap between the prior and charged offenses did not make the earlier offenses irrelevant. Rather, the court noted, the evidence showed a pattern of sexual offenses against defendant's young female relatives that extended back some 20 years. Such is the case here, where the prior offense evidence established an even longer history of repeated sexual abuses against young girls reaching back to defendant's youth.
Moreover, the relevance of remote offenses increases if the defendant has periodically reoffended in the interim. (See People v. Harris (1998) 60 Cal.App.4th 727, 739.) Here, as the trial court observed: "[Y]ou do have that. You have subsequent interim sexual offenses with the oldest one being the most similar. The age range of these is all in the same approximate range. And I think that the remoteness factor is - does not take away that much from the probative value of the propensity evidence because there are these periodic offenses in the interim that occur in a variety of settings." The time that passed between the prior assaults and this one goes to the weight of the evidence, but does not necessitate a conclusion that the risk of undue prejudice outweighs their probative value. The court did not abuse its discretion.
Finally, we reject defendant's assertion that admitting propensity evidence under section 1108 violated his constitutional due process rights. In Falsetta, supra, 21 Cal.4th at pages 921-922, this state's highest court upheld section 1108 against the same due process claim asserted here. (See also People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016 [rejecting constitutional challenge to jury instruction based on section 1108].) Indeed, in Falsetta the court expressly noted that the federal case on which defendant relies, McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, has no bearing on the constitutionality of section 1108 or its federal equivalent. (Falsetta, supra, 21 Cal.4th at pp. 921-922.)
III. Stationing A Deputy Near Defendant While He Testified Was Not Reversible Error
We are also not persuaded by defendant's assertion that the court committed reversible error when it stationed a sheriff's deputy behind him while he testified.
After defendant's direct testimony, outside the presence of the jury, defense counsel objected that the courtroom deputy had been standing behind defendant while he testified. The court responded that "had you approached earlier and raised it I would have ruled that I believe it's appropriate in this case given that [defendant] has felony convictions involving crimes with a forcible nature to them and a violence upon vulnerable victims under a certain age and including [an] enhancement with use of a knife. [¶] So based on that record, I think it's just a good precaution for the courtroom. And if you wish, I can admonish the jury that they may have noticed the bailiff is standing there and that they shouldn't take this to be any particular reflection in terms of the credibility of the defendant." The court made clear that it did not have a general policy of positioning a bailiff behind a testifying defendant, but that it felt the precaution was warranted in this case. When testimony resumed, the court instructed the jury not to interpret the bailiff's presence as an indication of defendant's credibility.
The full instruction stated: "You may have noticed that the bailiff is standing behind [defendant] as he testifies from the witness stand, and that wasn't the case for any of our other witnesses who were on the witness stand. [¶] And just as you would not take any signal or inference from me as to the believability or non-believability of any witness, I'm instructing you that you shouldn't take this particular detail as a signal as to whether you should find [defendant's] testimony credible or not. So that part of this proceeding you should ignore."
The propriety of stationing a bailiff near a defendant during his or her testimony was addressed recently in People v. Hernandez (2011) 51 Cal.4th 733 (Hernandez). The Supreme Court explained: "Many courtroom security procedures are routine and do not impinge on a defendant's ability to present a defense or enjoy the presumption of innocence. [Citation.] However, some security practices inordinately risk prejudice to a defendant's right to a fair trial and must be justified by a higher showing of need. For example, visible physical restraints like handcuffs or leg irons may erode the presumption of innocence because they suggest to the jury that the defendant is a dangerous person who must be separated from the rest of the community. [Citations.] Because physical restraints carry such risks, their use is considered inherently prejudicial and must be justified by a particularized showing of manifest need. [Citations.]" (Id. at pp. 741-742.)
But, the court continued, the stationing of a uniformed deputy at the witness stand during a defendant's testimony is different. In such cases, although the "practice is not inherently prejudicial, we cautioned [in People v. Stevens (2008) 47 Cal.4th 625, 644] that 'the trial court must exercise its own discretion in ordering such a procedure and may not simply defer to a generic policy.' [Citation.] We explained: 'The court may not defer decisionmaking authority to law enforcement officers, but must exercise its own discretion to determine whether a given security measure is appropriate on a case-by-case basis. . . . [T]he trial court has the first responsibility of balancing the need for heightened security against the risk that additional precautions will prejudice the accused in the eyes of the jury. "It is that judicial reconciliation of the competing interests of the person standing trial and of the state providing for the security of the community that, according to [Supreme Court precedent], provides the appropriate guarantee of fundamental fairness." [Citation.] The trial court should state its reasons for stationing a guard at or near the witness stand and explain on the record why the need for this security measure outweighs potential prejudice to the testifying defendant. In addition, although we impose no sua sponte duty for it to do so, the court should consider, upon request, giving a cautionary instruction, either at the time of the defendant's testimony or with closing instructions, telling the jury to disregard security measures related to the defendant's custodial status. [Citations.]' " (Hernandez, supra, 51 Cal.4th at pp. 742-743.) We review the trial court's decision to employ security measures in the courtroom for abuse of discretion. (Id. at p. 741.)
Here, contrary to defendant's claim, the court specifically explained that its decision was based on a particularized consideration of defendant's history of violent offenses, and was not a generic or routine practice. Moreover, the court admonished the jury not to draw inferences from the bailiff's presence. While defendant complains that the court did not hold a hearing in advance of imposing the security measure, nothing in Hernandez, or any other authority defendant has apprised us of, says a trial court must hold such a hearing.
Finally, even if a particular showing were required to justify posting a bailiff near defendant during his testimony, there is no reasonable probability that doing so here affected the outcome. (See Hernandez, supra, 51 Cal.4th at pp. 744-745 [harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 837 applies].) In light of the testimony about defendant's prior violent sexual offenses, the jury had little cause to speculate about the existence of other possible reasons for the security measure such as to "caus[e] irreparable harm to [defendant's] credibility." Moreover, the court specifically admonished the jury not to consider the bailiff's presence in any way in assessing credibility. This was not a particularly close case. The court's decision to station the bailiff behind defendant, even had it been in error, was not prejudicial.
The judgment is affirmed.