P. v. Dew

Filed 12/30/08 P. v. Dew CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

A jury convicted defendant Frederick Deshawn Dew of aggravated sexual assault of a child (Pen. Code, 269, subd. (a)(4)),^[1]forcible lewd acts with a child under the age of 14

( 288, subd. (b)(1)), attempted forcible lewd acts with a child under the age of 14 ( 664, 288, subd. (b)(1)), and committing lewd or lascivious acts on a child ( 288, subd. (a)). The court sentenced defendant to 22 years to life in state prison.

On appeal, defendant contends the court erred in denying a mistrial due to prosecutorial misconduct, prior acts of sexual misconduct were erroneously admitted, and cumulative error warrants reversal. We shall affirm.

BACKGROUND

M.Z., born in July 1993, was an eighth-grade student in March 2007, when he and his friend S.T. went to the public library to research a project on the Declaration of Independence. At one point during his research, M.Z. was standing at a table when he heard a man, defendant, who was seated at the table, say Umm, while looking at him.

M.Z. left the area to go to the aisle of a bookcase, but defendant got up, walking behind and to the side of him. Defendant appeared to be looking for a book and made the same Umm comment while again looking at M.Z. He then walked behind M.Z. and slid his hand on the boys rear end. M.Z. went to S.T., telling her they should work at his house and he was going to the bathroom.

He went to the librarian and asked how many books he could check out before cautiously entering the mens bathroom. The mens bathroom had two signs, one saying not to close or lock the door and the other stating only one person could use the restroom at a time. After finishing at the urinal, M.Z. turned around and noticed defendant standing behind him and staring.

M.Z. saw the restroom door was closed; he had heard the door closing before he had finished using the urinal. He went around defendant to leave, but defendant ran and jumped in front of M.Z., pulling down his pants and masturbating in front of the boy. Defendant pushed M.Z. away from the door and reached for the boys pants and unsuccessfully tried to pull them down. After M.Z. slapped defendants hand away, defendant grabbed M.Z.s head and put his penis in the boys mouth. After M.Z. shoved him in the stomach, defendant said, What, you want protection? and Youre 13, Im sure you have protection. In order to get out of the bathroom, M.Z. replied that he did, but it was in his backpack and they should get it.

Defendant moved to the side to let M.Z. go. M.Z. left the bathroom, walked to S.T., and told her a man tried to molest him. S.T. then contacted the security guard in the library. M.Z. saw defendant was leaving the library and pointed him out to the security guard, who followed defendant and tried to stop him.

M.Z. was shown a photographic lineup and wrote Maybe its the guy by defendants picture. He told the police defendant was about six feet tall and weighed around 180 pounds.

According to S.T., she was not aware where M.Z. was while she was researching on the computer in the library. M.Z. eventually came to her and said he was going to the bathroom, and that a man was sexually harassing him with noises. He returned later, telling her in a shaky voice he wanted to leave. S.T. asked what was the matter, and M.Z. told her what happened to him.

While S.T. was talking to the security guard, M.Z. came up in shock and started crying, pointing out the man as he was walking out of the library. S.T. saw the person, whom she described as a Black male, six feet tall and 170 pounds. After M.Z. pointed the man out, the security guard followed him.

Alfear Wright is one of two uniformed security officers at the library. He was working at the library in March 2007 when a teenage girl came to him and said her friend had a problem. Within a few seconds, a 13-year-old boy showed up crying. Asked what was wrong, the boy said a man came into the restroom and tried to rape him. Wright asked the boy where the man was and he pointed out the perpetrator, who was leaving the library.

Wright quickly moved to catch up with the man, following him through the front doors and trying to get his attention. The man ignored Wright and kept moving while holding a cellular phone to his ear. Wright followed the man outside the building and to his car, telling him three times, Sir, you need to stop and that there was a complaint against him. After the third request, the man turned around and told Wright he was too busy to stop.

Wright kept asking him to stay even as the man opened the car door. The man told Wright he had a meeting to attend. Wright replied, Look, this is important, you need to come back, more important than that meeting, otherwise, I will have to make a report to the police. The man replied, Go ahead, and drove off in his dark blue two-door Mercedes. Wright participated in a photographic lineup, and identified defendant as the man he pursued.

Wrights partner, Harsimar Singh, was working in the parking lot on the day of the incident. He observed a blue car drive up and park, and the driver, a Black man, sat in the car for about 15 minutes before entering the library. This was unusual, so Singh made a note of the car, a Mercedes.

He later heard his partner calling excuse me sir to the man, who in turn replied he would not go back. Singh recorded the license plate of the Mercedes as it left around 4:25 p.m., and noticed the front license plate had only the word Jesus on it.

Jonathan Ragisoa was 17 years old at the time of this attack. He was studying in the library and a Black man walked in and stared at him. This made Ragisoa uncomfortable, so he got a book and moved back to his table. The man then sat about three feet from Ragisoa and stared at him again 10 to 15 minutes later. Later, a middle school boy approached him and said he was scared because a man was feeling his rear area.

Ragisoa told the boy to go to security and continued his studies. The boy later told Ragisoa the man had tried to molest him. Ragisoa started to tell him to go to security but a fight broke out between security and a man outside the library. He saw the boy point out the same man who had earlier stared at Ragisoa. Ragisoa had also seen this man right behind the boy in the shelves, trying to look as if he were looking at books. He identified defendant in a photographic lineup.

Ragisoa noticed that as the boy was talking to a security guard, the man picked up his books and started to leave the library. The security guard followed and tried to talk to the man by his car, a navy blue vehicle which had a license plate saying Jesus.

Sacramento police officers traced the Mercedes to Linda Coleman. Officers went to her house on the night of the incident and knocked on her door, but got no answer, and could not see the car.

The officers determined defendant was associated with Coleman and matched the physical description of the assailant. They went to defendants apartment complex and found the Mercedes in a parking space close to his apartment. The car was found on March 8 at around 10:55 p.m.

A Sacramento police detective called defendant at 10:38 p.m. that night, telling him they wanted to contact Coleman about a very serious matter. Defendant said he knew Coleman socially but had not seen her in a few days and did not know how to contact her. Defendant told the detective he knew Coleman drove a blue Mercedes, but had not seen the car for a few days and had never driven it.

The detective heard people talking and what sounded like gospel music in the background. Defendant replied he was at a shut-in prayer meeting at a church near Interstate-80 and Norwood, and would be unavailable until the service concluded between 3:00 and 4:00 a.m.

A search of defendants apartment found a Wal-Mart receipt dated March 8, 2007, and a to do list which contained several items including library. Searching the Mercedes, officers found a service invoice assigned to defendant, insurance information in his name, and a scrapbook bearing his first name.

Linda Coleman was a minister at a church defendant headed as the pastor. She bought the Mercedes, but defendant was making the insurance payments and had possessed the car since she purchased it.

Coleman was at church with defendant on the night of the incident, seeing him there starting at 8:00 p.m. and she left around midnight. She admitted visiting defendant in jail about 31 times and that he had lost at least 10 to 15 pounds in jail.

A Sacramento police sergeant received a phone call from defendant at 1:21 a.m. on March 9. Defendant admitted the Mercedes was parked near his apartment. He could not talk to the sergeant because he was at an all night prayer meeting at his South Sacramento church. He said that on March 8, he drove the Mercedes to work, left work at approximately 3:15 p.m., then went to a bank and the Florin Road Wal-Mart for religious materials, and drove home at around 5:00 p.m. The sergeant went to defendants church to contact him between 1:50 and 1:55 a.m., but no one was there.

Six latent fingerprints were found in the library. A print found on the exterior of the bathroom door, just above the handle, was identified as defendants.

Defendant was interviewed by officers at his private office in the church on March 9. Defendant said on March 8 he worked until 3:30 p.m., then went to the post office and a South Sacramento Bel-Air grocery store before going home. After dinner, he was at his church by 7:00 p.m., staying there until 1:00 or 2:00 a.m.

He admitted going to the library on March 8 to look up the words relationship, sacrifice and marriage in the dictionary. He was in the library for six to 10 minutes, leaving because his cell phone rang and a security guard had him leave. Defendant said he had no other conversation with the guard before driving home.

The interrogating detective told defendant they had fingerprints tying him to the bathroom and falsely told him that DNA and video evidence also likened him there. Defendant then told the detective he probably went to the bathroom, but denied touching anyone there.

A surveillance video for the Florin Bel-Air grocery store shows no one matching defendants description between 3:00 and 5:15 p.m. on March 8. The receipt from defendants apartment and surveillance footage established that the purchase at Wal-Mart was made at 8:42 p.m. on March 8.

Over defendants objection, evidence of three incidents of prior sexual misconduct by defendant was admitted pursuant to Evidence Code section 1108. In July 1994, Javier T. was a 17-year-old high school sophomore in San Bernardino County who had recently been hired by defendant at a Jeans West store in a local mall. A few days later, defendant rubbed his penis against Javier T.s buttocks as he was bent over to break down boxes in the back of the store.

Defendant repeated the assault and Javier left on a break. Later, while Javier was on top of a ladder stocking clothes, defendant grabbed his buttocks. The next day, defendant told Javier he had a nice ass. Javier reported the matter to the authorities.

In July 1994, 18-year-old Arthur A. was working at another store in the same mall. He went to the Jeans West store to buy a shirt and was greeted by defendant, the only other person in the store. Arthur came out of the fitting room wearing a shirt he had picked out, saying it was too tight. Defendant tugged on the shirt, exclaiming it was not too bad, and rubbed his hand across Arthurs genitals. A startled Arthur returned to the fitting room and changed. He went to the register to pay, where defendant was extra nice and offered a discount. While giving change, defendant ran his hand across Arthurs hand, kind of gripping it. Arthur told his supervisor and then called the police.

On February 5, 2000, an undercover vice officer for the Los Angeles Police Department observed defendant at an adult book store in Hollywood. Defendant made eye contact with the officer and gave a distinctive head nod to catch his attention. The officer went over, where he found defendant with his zipper pulled down, masturbating his exposed penis. Defendant was then arrested.

DISCUSSION

I

During the examination of Coleman, the prosecutor asked if she had visited defendant in jail. Coleman replied she had, and the prosecutor asked: And you visited him lots of times, correct? She agreed, and the prosecutor replied, At least thirty-one times, correct? to which Coleman answered, Probably. The prosecutor then asked Coleman whether she had talked to defendant about the police reports or whether he had gone to Wal-Mart on the night of the incident. After some questioning from the prosecutor about defendant losing 10 to 15 pounds in jail and the clothes he normally wears, the court dismissed the jury.

After the jury left, the court expressed its surprise to the prosecutor at her references to defendants custodial status. The prosecutor explained her line of questioning was intended to show defendant had lost weight in jail and thus show why he now weighed less than the eyewitnesses related. The court understood why the prosecutor asked the questions, but stated it was unnecessary to imply defendant was in custody.

Defense counsel asked for a mistrial or the exclusion of any statements defendant made while in jail. The court denied defendants motion and instead admonished the jury not to consider defendants custodial status.^[2]

Defendant contends the trial court abused its discretion and violated his right to a fair trial by denying the mistrial motion. We disagree.

In order to obtain reversal under the federal Constitution, any prosecutorial misconduct must be so egregious that it results in unfairness and constitutes a denial of due process. (People v. Prieto (2003) 30 Cal.4th 226, 260.) Prosecutorial conduct that does not render a trial fundamentally unfair is misconduct under state law only when it attempts to persuade the trier of fact with reprehensible or deceptive methods. (Ibid.)

A trial court should grant a mistrial only when a partys chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial. [Citation.] (Peoplev. Bolden (2002) 29 Cal.4th 515, 555.) Because the question of whether a particular incident is incurably prejudicial is by nature a speculative matter, the trial court is vested with considerable discretion in deciding mistrial motions. (People v. Wharton (1991) 53 Cal.3d 522, 565.)

Estelle v. Williams (1976) 425 U.S. 501 [48 L.Ed.2d 126] and People v. Bradford (1997) 15 Cal.4th 1229 (Bradford), set forth the general principle that some references to a defendants custodial status can impair the presumption of innocence in violation of his or her rights to due process and a fair trial. In Estelle v. Williams, supra, 425 U.S. 501 [48 L.Ed.2d 126], the United States Supreme Court explained how appearance in jail clothing provided a constant reminder that the accused was in custody, creating an unacceptable risk that the jury would consider that fact in ruling on guilt or innocence. It held the state cannot compel an accused to appear in jail clothing in a jury trial. (Id. at pp. 512-513 [48 L.Ed.2d at p. 135].)

In Bradford, supra, 15 Cal.4th 1229, the prosecutor questioned a witness during direct-examination about her continued friendship with defendant in an attempt to reveal bias. (Id. at p. 1335.) He asked whether she had given the defendant anything in the last month, to which she replied, Like what can I give him, writing paper? (Ibid.)

In that case, the California Supreme Court distinguished between incidents involving prison clothing and those involving passing references to custodial status. It rejected the claim of misconduct, as [t]he prosecutor did not refer expressly to the circumstance that defendant was in custody in questioning [the witness] concerning her continuing ties to defendant, and, as the trial court found, the single, spontaneous comment made by [the witness] did not necessarily raise the inference that defendant was in fact in custody. Even if it had, however, an isolated comment that a defendant is in custody simply does not create the potential for the impairment of the presumption of innocence that might arise were such information repeatedly conveyed to the jury. (Bradford, supra, 15 Cal.4th at p. 1336.)

We find Bradford is closer to this case than Estelle. Defendants custodial status was not brought to the jurys attention throughout the trial, but came about through inference from a line of questioning intended to explain why his appearance at trial differed from that described by the eyewitnesses. Although this was more than a single spontaneous statement from a witness, the inference that defendant was still in jail was nonetheless only an inference, and a comparatively minor reference when taken in context of the overwhelming evidence of defendants guilt.

The courts admonishment also cures any potential prejudice from the prosecutors misconduct. To determine whether an admonishment would have been effective, we consider the statements in context. [Citation.] If the defendant objected or if an objection would not have cured the harm, we look to see whether the improper conduct was prejudicial, i.e., whether it is reasonably probable that a jury would have reached a more favorable result absent the objectionable comments. [Citation.] (People v. Herring (1993) 20 Cal.App.4th 1066, 1074.)

In this case, the reference to defendants being in jail was comparatively fleeting and inferential, while the evidence of his guilt was overwhelming. It was not an abuse of discretion to deny the mistrial motion and admonish the jury.

II

Defendant asserts the introduction pursuant to Evidence Code section 1108 of three instances of prior sexual misconduct denied him due process of law under the Fourteenth Amendment to the United States Constitution. Admitting that the California Supreme Court has already rejected such a contention (People v. Falsetta (1999) 21 Cal.4th 903, 907 (Falsetta)), defendant argues Falsetta was wrongly decided.

Having raised the issue, defendant recognizes we are bound by Falsetta. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

III

Defendant also asserts the sexual misconduct evidence should have been excluded pursuant to Evidence Code section 352. We disagree.

When it enacted Evidence Code section 1108, the Legislature declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the witness. (Falsetta, supra, 21 Cal.4th at p. 912.) It thus has bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense. (Ibid.) Indeed, [o]ur elected Legislature has determined that the policy considerations favoring the exclusion of evidence of uncharged sexual offenses are outweighed in criminal sexual offense cases by the policy considerations favoring the admission of such evidence and that the need for this evidence is critical given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial. [Citation.] (Id. at pp. 911-912.)

Because evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible (People v. Yovanov (1999) 69 Cal.App.4th 392, 405), although the trial court may conclude, for reasons set forth in section 352 of the Evidence Code, that the evidence should be excluded. (Evid. Code, 1108, subd. (a).)

Unless defendant shows the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice, we must affirm the courts decision to allow the introduction of evidence of other sex crimes. (People v. Callahan (1999) 74 Cal.App.4th 356, 367.)

The sexual misconduct evidence, previously recounted in the background, shows in July 1994 defendant touched the clothed buttocks and rubbed his penis against a 17-year-old boy who was his coworker and rubbed his hand across the penis of an

18-year-old male as he was trying on a shirt, and in 2000 was caught masturbating in public by an undercover detective in an adult book store.

Under Evidence Code section 352, prejudicial is not synonymous with damaging, but refers instead to evidence that uniquely tends to evoke an emotional bias against defendant without regard to its relevance on material issues. [Citations.] (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) The prior sexual misconduct was much less egregious than the charged offenses, the aggravated sexual assault of a 12-year-old boy. The evidence of defendants current offenses was overwhelming, and the sexual misconduct evidence was clearly probative of guilt under Evidence Code section 1108. The court did not abuse its discretion in admitting the evidence.

IV

Defendant finally claims cumulative error warrants reversal. We disagree, having found no error.

DISPOSITION

The judgment is affirmed.

BLEASE , J.

We concur:

SCOTLAND , P. J.

DAVIS , J.

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^[1] Subsequent undesignated statutory references are to the Penal Code.

^[2] The jury was admonished: Just before we took the break the questioning referenced the Defendants custody status. I want to admonish you that you are not to consider the Defendants custody status for any purpose. You are not to consider it or take it into account during you deliberations in any fashion.