P. v. Godino
Filed 6/29/12 P.
v. Godino CA1/3
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
DOMINICK J. GODINO,
Defendant and
Appellant.
A130695
(Sonoma County
Super. Ct. No. SCR557503)
Defendant Dominick J. Godino
(defendant) appeals the judgment and sentence imposed after a jury convicted
him of committing lewd or lascivious acts upon the body of a child under the
age of 14 with the intent of arousing the lust, passions or sexual desire of
himself or the child, in violation of Penal Code, section 288, subdivision (a).
Procedural Background
On November 30, 2009, the
County District Attorney (DA) filed a information accusing defendant in
counts I and II of committing a lewd and lascivious act on Jane Doe (age 11) on
or about February 28,
2009, in violation of section 288,
subdivision (a). Also, in relation to
count I, the DA alleged defendant had substantial sexual contact with Jane Doe,
within the meaning of section 1203.066, subdivision (a)(8).
Defendant exercised his
arguments on October 21. On October 22,
the jury returned its verdicts, finding defendant guilty on both counts and
also finding true the allegation of substantial sexual contact.
The trial court imposed sentence on November 23, 2010. The court noted probation
was precluded by law due to the jury’s finding of substantial sexual contact,
pursuant to section 1203.066, subdivision (a)(8). On count I, the court found the circumstances
in mitigation and aggravation in balance and imposed the midterm of six years
in state prison. The court imposed a
concurrent sentence of six years in state prison on count II. Defendant filed a timely
Facts
The
prosecution presented testimony from Jane Doe’s mother (mother), Jane Doe, and
two witnesses, B.K. and Ruth E., who testified defendant molested them
during drum lessons several years before.
child, Jane Doe (Jane). Jane received a
drum kit at Christmas 2008, at which time she was 10-years old. Jane began taking drum lessons with defendant
in early January 2009. Her drum lessons
were on Saturday mornings in defendant’s drum studio at his house. Mother sat in on Jane’s first lesson and
Jane’s father sat in on the next lesson so he could meet the teacher. Thereafter, Jane took lessons alone with
defendant.
Mother testified that she picked Jane up after her drum lesson on February 28, 2009. Jane was usually cheerful
after her drum lessons but that day she was not. Jane was quiet and uncommunicative, and when
mother asked how the drum lesson went, all Jane would say was, “I don’t
know.†Concerned by Jane’s demeanor and
non-responsiveness, mother decided to pull over and talk to her. She got into the back seat of the vehicle so
she could speak to Jane face-to-face.
Mother asked Jane what was bothering her. Eventually, Jane told mother that defendant kissed her on the
lips and touched her private parts underneath her underwear during the drum
lesson. Mother drove home, told her
husband what had happened, and he called the police.
brushed her teeth. On the Tuesday
following the drum lesson in question, Jane gave video testimony at the
Redwood’s Children’s Center and mother spoke with Petaluma Police Detective
Garihan.
Jane Doe, who was twelve years old
at the time of trial, testified that she took approximately six drum lessons
from defendant at his home. During the
lessons, defendant would hold the back of her hand as he showed her how to play
the drums. Defendant called her
“Princess,†and would kiss her on top of the head as she sat on the drum stool
and he stood behind her. According to
Jane, Defendant first kissed her during the second or third lesson. He kissed her on the cheek and the lips. When defendant kissed her on the lips, his
mouth was halfway open. Jane did not
like it when defendant kissed her but did not tell defendant because she “was
small at the time, so I didn’t really know . . . it wasn’t really
right.â€
Jane also testified that defendant
touched her in several places during her last lesson with him. She testified that defendant touched her on
the calf and then moved his hand up to her thigh. Jane was wearing a dress and defendant
reached under her dress and put his hand on her thigh. After defendant put his hand on her thigh, he
moved his hand up to her underpants and ran his hand over them. Defendant then put his hand under her
underpants, touched her private parts, meaning her vagina, with his finger and
moved his finger “back and forth really fast†on her vagina. Jane explained that when Defendant put his
finger inside her vagina “it didn’t feel good.â€
Defendant also ran his fingers in a circular motion on her nipples. Defendant touched her in this manner while
she was sitting on the stool at a drum set.
When defendant touched her vagina, Jane asked defendant to show her
something on the other drum set and told him she wanted to go to the
bathroom. When she returned from the
bathroom, defendant told her not to tell anyone because they would have to stop
doing lessons together and “that would break his heart.â€
B.K., who was 21-years old at time
of trial, testified that defendant gave her drumming lessons when she was 15-years
old. B.K. took weekly drumming lessons
for a period of approximately six months with defendant at Starz Music in
Petaluma. During the lessons, defendant
would rub her head, put his fingers through her hair and rub her neck. He also rubbed her shoulders and down her
lower back. During the lessons,
defendant sat next to her and rubbed her inner thigh, close to her crotch. He told her she was beautiful, that he was
building a drum studio behind his house and he wanted her to take lessons with
him in the evening so they would have more “privacy.†B.K. felt really uncomfortable when defendant
touched her like that—she usually had tears but hid them because she did not
want defendant to notice. At one point,
B.K. told her mom defendant made her feel uncomfortable and so her mom sat in
on the lessons. Finally, B.K. stopped
taking lessons because she felt “scared.â€
Ruth E., who was 26-years old
at time of trial, also testified about her experience as defendant’s drumming
student. Beginning when she was 15-years
old, Ruth E. took drum lessons with defendant at Starz Music in Petaluma
for over a year. At first, the drum
lessons were fun. Things grew
uncomfortable for Ruth E. during the summer, when she wore lighter
clothes, such as shorts and tank tops.
At that time, defendant began touching her and making comments: Defendant would rub her thighs and say things
like, “Baby, I love how smooth your legs are†or “I love it when you wear
shorts or skirts so I can feel your legs.â€
Defendant would rub her thighs, at first only occasionally, then at
every lesson. One time she remarked her
back hurt and defendant offered to crack it for her. Ruth E. agreed, but when defendant
cracked her back “it was more like he was rubbing on me from behind with his genitals.†Describing defendant’s actions when he
cracked her back, Ruth E. stated, “It was like he was dry humping
me.†It got to the point Ruth E.
felt really uncomfortable at lessons and did not want to wear certain clothes
around defendant. Ruth E. testified,
“I was afraid of him touching me, I felt gross every time I went there.†Ruth E. stopped taking lessons because
she “wasn’t learning anything anyway,†defendant just wanted to play music and
have fun with her.
Defense Case
The defense case included testimony
from defendant, his wife, his physician, several character witnesses and the
investigating officer assigned to his case.
Defendant’s wife, Leela Godino, testified she and defendant have been
married for almost 40 years and have one child, their adult son Joseph, who is
32-years old, mentally handicapped and lives at home. During their marriage, defendant has been a
professional musician and drum teacher; he is also a certified yoga teacher. Defendant began to focus more on teaching
drums about 25 years ago so he could look after their son. Defendant gives drum lessons in a studio
located at their home. The studio is
just inside the front door on the right hand side. The studio is ten feet by twelve feet, has
one window that looks out onto the porch at the front of the house, and
contains two electronic drum sets that sit side by side.
Leela was present on many occasions
while defendant gave drum lessons to students.
Sometimes defendant holds the students’ hands when showing them how to
hold the drumsticks. Defendant touches
students when showing them how to use the bass pedal, foot drum and when
necessary to correct their posture as
they play. Leela never observed
defendant massage a student’s shoulders, but she has seen him stand behind a
student and push down on the student’s shoulders to make the student
relax. Leela never saw defendant crack a
student’s back, but he has cracked her back and saw him do it for other
relatives.
Leela opined that defendant has a
very high reputation for honesty in the community. Leela has watched defendant interact with
young female students, ranging in age from ten to eighteen years old, and she
has talked with many of their parents.
In addition, Leela testified that defendant does not have a sexual or
unnatural interest in underage females.
She has seen defendant interact with his students hundreds of times and
she has never seen him kiss a student on the lips. Leela testified that “[i]f for one moment
there was ever a doubt in my mind that my husband could do anything like that,
I would not be sitting in this chair.â€
Following his wife’s testimony,
defendant took the witness stand and informed the jury that he is almost
70-years old and had played drums since he was young. At the time of the incident in question,
defendant was wearing an orthopedic boot on his left foot because he had
severely sprained his left ankle; he was taking medication for the ankle that
affected his balance. Over the years, he
developed arthritis in his hands and pain in his thumbs from playing
drums. As a result, he had to apply
several lotions to his hands before playing drums, including Bengay, and
Voltaren - a prescription cream. After
he applied the lotions, if defendant accidentally touched his eyes, or his
genitals, noting that he “made that mistake once,†he experienced a stinging
sensation.
Defendant started teaching drums in
Sonoma County in 1982, giving lessons in one of the four music studio rooms at
Starz Music in Petaluma, owned by George Eade.
Defendant testified correct posture is required for fluidity and
efficiency in playing the drums, and that the first dozen lessons are the most
important in teaching proper posture.
Students tend to lean or slump, and to correct that he would hold a
student by the shoulders to adjust their posture. Defendant testified he has probably massaged
a student’s shoulders if he thought the student was too tense. To help with a student’s relaxation and
breathing, he would touch a student’s shoulders if they were bunched up and
tuck in a student’s elbows if they were sticking out. Also, defendant explained “there are four
limbs to drumming [and] if we are talking about the legs, I would adjust the
foot, the ankle, the knee†to position the student correctly to the drums. For example, defendant touches a student’s
calf to adjust the foot placement on the pedal and show the student the proper
heel-up, heel-down motion on the pedal.
Snare drum involves a different technique working with brushes instead
of sticks: When teaching snare drum,
defendant stands behind the student and reaches around the student to
demonstrate the proper circular motion of the brushes.
Defendant remembered teaching
B.K.. He gave her lessons typical for a
beginner in drumming. He had no idea
B.K. felt uncomfortable during his lessons and she never said anything to him
about it. No one at Starz Music ever
told him he was behaving inappropriately.
Defendant stated he “would never touch a student’s hair†in the way B.K.
said he touched her hair. If he touched
B.K., it was “for a correction in the classroom, which is normal
protocol.†Occasionally, he remarked on
how a student looked, such as “You look very nice today†or “You look cool,â€
and tried to address students in a “more contemporary manner so they would feel
I wasn’t this old guy giving drum lessons.â€
Defendant also remembered Ruth E., who studied with him quite a
long time ago. Defendant acknowledged he
touched Ruth E.“in the course of teaching her the correct posture.†When Ruth E.asked him to crack her back,
he told her to fold her arms, turned his hip to her back, and gently lifted her
up, just as he learned in yoga class.
Regarding Jane Doe, defendant
testified her parents called him to arrange drum lessons and he gave her a
total of eight lessons. Jane was a
complete beginner and defendant worked with her on drum technique, hand-foot
coordination and basic rhythms. One
weekend, Jane and her mom cancelled the lesson but then showed up
unexpectedly. Defendant had some free
time, so he gave her a short lesson but did not charge for it. The following week, Jane gave him a present
at the start of the lesson, a CD-DVD of the band Green Day. In response, defendant picked one of the
beanie bears with a peace sign on it he has in the studio, said, “Here, this is
for you†and gave Jane a kiss on the forehead.
He kissed Jane on the forehead as a token of appreciation for the gift
and had no recollection of kissing her at any other time.
Concerning Jane’s accusation that
defendant touched her inappropriately, Defendant recalled that Jane expressed a
desire to play brushes that day.
Defendant showed her basic brush techniques; he stood behind her, placed
his arms around her and helped her hold the brushes. He and Jane were sitting side-by-side at the
drum kits. Defendant reached over to
correct Jane’s posture and his left ankle gave way causing him to fall. As he pitched forward onto his knees, he grabbed
hold of Jane. Jane looked startled. Defendant was embarrassed and tried to get up
and back to his position as quickly as possible. When defendant fell he grabbed Jane’s back
and thigh. Defendant grabbed Jane to
break his fall and he touched her earlier in the lesson as necessary to show her the proper brush technique. Defendant did not put his finger in Jane’s
vagina and did not rub her nipples.
On cross-examination, the prosecutor
questioned defendant regarding several
phone calls he received from Jane Doe’s mother that were arranged by the
police and recorded. Mother placed the
first pretext call to defendant on the evening of March 4, 2009.
“there’s something I got to talk to you about†and asked if he had “a moment to
talk.†Defendant replied, “Yes, I do, I
do.†Mother revealed Jane Doe told her
something had happened at the last drum lesson and stated, “I want to ask you
some questions about it.†Defendant
lowered his voice, said he could not talk about it now, and asked if they “could
talk tomorrow.†Mother told defendant
she was upset and had not told her husband.
Defendant replied, “I would prefer if you wouldn’t say anything and I
would like to talk with you tomorrow.â€
The defense also called William
Sydeman to testify. Sydeman testified he
took lessons from defendant every Saturday morning at around 10.30 a.m. from
January through March 2009. His lesson
was immediately after Jane Doe’s lesson and he would usually see her coming out of the house as he
was going in for his lesson. Sydeman saw
Jane on the day of the alleged sexual offense.
He was running a little late and as he was walking up to defendant’s
house the door opened and Jane came out.
She walked past him as he went into the house for his lesson. Sydeman did not notice anything unusual about
her; she did not appear upset, frightened or scared.
Dr. Catherine Clark-Sayles,
defendant’s primary care physician, also testified on behalf of defendant. Dr. Clark-Sayles saw defendant on
February 4, 2009, for a pre-operative evaluation for cataract surgery. At that time, defendant reported ongoing pain
from an injury to his left ankle that occurred a few months before his
visit. He informed Dr. Clark-Sayles
that his ankle was unstable.
Dr. Clark-Sayles testified defendant has severe degenerative
arthritis at the base of both thumbs; he received cortisone injections for the
condition, and had two separate
thumbs. She prescribed an anti-inflammatory medicine
called Daypro, or Oxaprozin, that defendant takes in tablet form to provide
relief from his arthritis. In addition, she prescribed Voltaren gel, and
defendant also uses other over-the-counter arthritis relief gels. All these gels are alcohol based and sting if
they come in contact with mucous tissue like the lips or the genitals. Dr. Clark-Sayles also prescribes a drug
named Neurontin for defendant. This drug
reduces nerve generated pain but its side effects may include drowsiness and
dizziness, which can throw the person’s “balance slightly off.â€
Defendant called several character
witnesses in his defense. George Eade
testified that before he retired, he
owned and managed Starz Music in Petaluma for 25 years until it closed
in 2005. During that time, defendant was
the principal drum teacher at Starz Music in Petaluma, working in one of the
four music studio rooms there. Doors to
the studios were always closed during lessons to minimize noise problems. Over the years, Eade talked to many students,
parents and store managers about defendant and the other music teachers at the
store. Based on these contacts and
discussions, Eade had no reason to think defendant had an unnatural sexual
interest in young girls; defendant’s reputation, according to Eade, “was
impeccable.â€
John B. and his daughter
Isabella also testified as character witnesses.
John, a registered nurse, testified he has two children, including
Isabella, aged thirteen. Defendant has
been teaching Isabella drums for several years.
One time, defendant volunteered to come to their house and help Isabella
assemble a new drum kit. Once the kit
was assembled, defendant had to adjust it to fit Isabella. John observed defendant touch Isabella’s
feet, legs and back as he did so, and saw him push her back to adjust her
posture.
Isabella testified she has a drum
set and likes alternative music.
Defendant was her first drum teacher after she got a drum set at
Christmas 2008. Isabella described how
defendant showed her how to hold the drumsticks and where to place her
feet. To assist her, defendant would
move her feet and adjust her posture by touching the middle of her back and
pushing down on her shoulders. Isabella
took more than 20 lessons from defendant.
She never felt uncomfortable during lessons. Defendant never kissed her on the forehead,
cheeks or lips.
The last character witness for the
defense was Lauren Anderson, a 24-year old Stanford graduate, public school
teacher and percussionist. Anderson
testified her parents enrolled her in drum lessons when she was about 9-years
old at Starz Music in Santa Rosa, where she took weekly lessons from defendant
from 1996-2002. Anderson testified she
never felt uncomfortable about defendant touching her while instructing her on
the drums. Anderson also testified
defendant was affectionate towards her; occasionally he gave her a little hug
or a kiss on the forehead if she had done well in a lesson or recital. Defendant also used terms of endearment like
“Princess,†“sweetie†or “hun.â€
Defendant’s expressions of affection did not make Anderson feel
uncomfortable.
The defense also called Petaluma
Police Detective Aaron Garihan, the investigating officer assigned to the
case. Detective Garihan testified that
in cases of sexual assault, the victim is often referred for a sexual assault
examination, in which the victim’s genitals are examined for bruising, marks or
tears. In this case, Jane was not
referred to a sexual assault examiner.
The decision not to refer Jane for a sexual assault examination was made
by the Petaluma Police Department without consulting medical personnel. Garihan also testified that defendant’s house
was thoroughly searched and his computer was subjected to forensic examination. No evidence of child pornography was
found.
Discussion
Communications
The fact relevant to this issue are
these: During the prosecution’s
cross-examination of defendant’s wife, Leela, she testified that she had never
seen defendant kiss Jane Doe on the lips.
The prosecutor’s next question was, “Has [defendant] told you that he
ever kissed Jane Doe?†Defense counsel
objected “under the marital privilege.â€
The court sustained the objection until it could confer with counsel
outside the presence of the jury. The
prosecutor continued his cross examination and asked if Leela was aware
defendant “is alleged to have kissed Jane Doe on the lips several times.†Leela replied, “Not several times, no. I thought it was one time.†The prosecutor followed with, “
Subsequently, the court informed
counsel it had reversed itself “on sustaining the marital privilege as far as
the question that was asked previously.
You may ask that as well.â€
name="_ftnref6" title="">[6] The prosecutor then engaged in the following
colloquy with Leela:
“Q. Had your husband ever told you that he
kissed Jane Doe on the forehead?
A. Yes, he has.
Q. How many times has he admitted to you
that he kissed her on the forehead?
A. I think once.â€
Q. Has your husband told you that he kissed
Jane Doe on the lips?
A. No.
[¶] . . .
[¶]
Q. Has your husband ever admitted to you
that he rubbed her vagina?
A. No.
Q. Has he ever admitted to you that he put
his finger inside of her vagina?
A. No.
Q. Had he admitted any of those things you
would have left him, right?
A. Absolutely.â€
Defendant contends he suffered
prejudicial error because his wife Leela was forced to reveal confidential
marital communications. Respondent
asserts defendant waived the privilege when counsel failed to object to the
question and answer italicized above.
Further, respondent asserts that even if any of wife’s testimony was
admitted in violation of the privilege, defendant was not prejudiced thereby.
The confidential marital communication privilege is afforded under Evidence
code section 980.
name="_ftnref7" title="">[7] The
privilege “is vested in each spouse and consequently if a spouse is called as a
witness he or she may not testify as to confidential communications without his
or her consent and the consent of the other spouse. Either spouse may claim the
privilege. (Citation.)†(
706, 717.)
Here, defendant contends his marital
communication privilege was violated because Leela “was forced to tell the jury
that her husband had told her he kissed Jane Doe on the forehead, but not on
the lips.†According to defendant,
prejudice ensued because “he apparently admitted to Detective Garihan that he
the prosecutor later argued.†Defendant
also asserts he was prejudiced by the “final litany of questions†about whether
defendant had admitted any of the offenses to his wife.
Defendant’s claim of prejudice
fails. A defendant suffers prejudice
from the erroneous admission of privileged communications when it is
“reasonably possible that a reasonable jury would have rendered a different
verdict had the evidence been excluded. [Citation.]†(People
v. Clark (1990) 50 Cal.3d 583, 623 [addressing attorney-client
privilege].) Here, Leela revealed only
one marital communication over defendant’s objection, namely, her husband told
her he kissed Jane Doe on the forehead.
Her testimony about whether defendant told her he kissed Jane Doe on the
lips is less clear; because at one point she answered, without objection, that
she thought defendant kissed Jane Doe on the lips one time based on “my husband
talking to me,†yet later replied “No†when asked if defendant had told her he
kissed Jane Doe on the lips.
In all events, the prosecutor did
not rely on any of Leela’s testimony to impugn defendant’s credibility in his
testimony once, during rebuttal, stating:
“Now there was a mention about Ms. Godino . . . testifying as to Mr. Godino’s
character. And certainly Ms. Godino
told us, and no reason not to believe her, . . . she does not believe
. . . her husband has an interest in children. . . . This
was something that Mr. Godino hid from her for as many years as this has
been going on.†Rather, to impugn
defendant’s credibility, the prosecutor highlighted the inconsistencies in
defendant’s own testimony. Specifically,
and in reference to whether defendant kissed Jane Doe, the prosecutor
stated: “On direct examination
[defendant said] I never kissed her on the lips. He had no recollection of a kiss. Then it was I have no recollection of a kiss
other than a Beanie Baby kiss. That was
on direct examination. On cross-examination,
we talked about three kisses. We talked
about [it] for the very first time it came out that the kiss on the lips was a
mock kiss. And he admitted that had never
been discussed with anybody previously, not with Detective Garihan, not with
[mother], a mock kiss. He didn’t want to
just say, well I kissed her.†Having
considered the record as a whole, we
conclude it is not “reasonably possible†that the jury would have rendered a
different verdict in the absence of any error in admitting testimony covered by
the marital communications privilege. (
p. 623.)
B. Evidence
Admitted Under Evidence Code, Sections 1101 and 1108
Defendant contends the trial court erred by admitting the testimony
of B.K. and Ruth E. under Evidence Code, section 1101, subdivision (b)
(section 1101(b)) and 1108 (section 1108).
Under section 1101, evidence of
uncharged crimes is inadmissible to demonstrate a defendant’s criminal propensity
(§ 1101, subd.(a)), but is admissible to show intent, absence of mistake
or accident, identity or the existence of a common scheme or plan. (§ 1101, subd. (b); People v. Whisenhunt (2008) 44 Cal.4th 174, 204;
120; People v. Ewoldt (1994) 7
Cal.4th 380, 404, superseded by statute on other grounds as stated in
500, 505-506.) One caveat, however, is
that “[e]vidence of uncharged crimes is admissible to prove identity, common
design or plan, or intent only if the charged and uncharged crimes are
sufficiently similar to support a rational inference of identity, common design
or plan, or intent. (Citation.)†(
369; People v. Ewoldt, supra, 7 Cal.4th
at pp. 402–403.)
Here, B.K.’s and Ruth’s testimony
was highly probative on the issue of intent, as well as absence of mistake or
accident. The charged offenses required
proof that defendant’s actions were taken for the purpose of sexual
gratification, thus defendant's intent at the time of touching was a key issue
for the trier of fact. Defendant
admitted he touched the victim, but that he did so in conformance with proper
drum instruction protocol, in order to teach proper bodily posture and positioning. Also, he asserted that if he touched the
victim around the genital area, it was because he accidentally fell on her, not
because he harbored any sexual intent.
Both B.K. and Ruth E. contradicted defendant, and their testimony
was relevant to prove defendant acted with the requisite intent and not by
accident or mistake. Both young women
testified defendant touched them in a highly sexualized manner; B.K. testified
that during drum lessons defendant ran his fingers through her hair, rubbed her lower back, sat next to her and
rubbed her inner thigh, close to her crotch, while telling her she was
beautiful. Ruth E. testified
defendant would rub thighs and make comments like, “Baby, I love how smooth
your legs are†or “I love it when you wear shorts or skirts so I can feel your
legs, †and that one time defendant “dry-humped†her while purporting to crack
her back. Patently, this testimony was
highly relevant to the jury’s assessment of whether defendant, as he claimed,
acted according to drumming protocol rather than with the requisite intent to
sexually arouse.
Defendant, however, contends that
the manner in which he touched B.K. and Ruth E. was not sufficiently
similar to the manner in which it was alleged he touched the victim to be
admissible under section 1101(b).
Specifically, defendant asserts that whereas his behavior with B.K. and
Ruth E. “might have permitted the jury to conclude he had some erotic
interest in them, [] the relatively insubstantial nature of his contact with
them as teenagers had no tendency in reason to suggest that he would touch a
ten-year old girl with the intent of appealing to his lusts or passions.â€
We acknowledge that similarity
between the charged offense and the uncharged crime is required for the latter
to be admitted under section 1101(b).
The degree of similarity required, however, varies with the grounds for
admissibility; thus, “[t]o be relevant on the issue of identity, the uncharged
crimes must be highly similar to the charged offenses. . . . [¶]
. . . [¶] A lesser degree of similarity is required to establish
relevance on the issue of common design or plan. . . . [¶]
to establish relevance on the issue of intent. [Citation.] For this
purpose, the uncharged crimes need only be sufficiently similar [to the charged
offenses] to support the inference that the defendant probably harbored the
same intent in each instance.†(
636-637, internal quotation marks omitted, italics added.)
Here, we conclude the uncharged
crimes were sufficiently similar to the charged offense to support an inference
defendant harbored the same intent in each instance. B.K. and Ruth E. did not testify
defendant touched them on the vagina or breasts, however both testified defendant touched and rubbed
them in a highly sexual manner on the inner thighs; Ruth E. even described
an instance of “dry humping.†Defendant
argues the nature of his contact with B.K. and Ruth E. was “relatively
insubstantial†in comparison to the contact alleged with Jane Doe, but that
argument essentially attacks the weight of the evidence; however, the weight to
be accorded to the testimony lies within
the province of the trier of fact.
(See People v. Mullens (2004)
119 Cal.App.4th 648, 659-660 [where defendant was charged with committing lewd
acts upon his stepdaughter, in violation of section 288, subdivision (a), trial
court did not abuse discretion by permitting female witness to testify “that he
touched her thigh on one occasion at the house when she was 14 years of ageâ€
because it was “probative on the issue of whether [defendant] had a disposition
for engaging in lewd acts with children†as alleged incidents involved
allegedly improper touchings of young girls and “[a]ny dissimilarities in the
alleged incidents went to the weight, not the admissibility, of the
evidence].)
In sum, the admitted evidence, as
explained above, was substantially probative on the issue of intent and
satisfied the test for admissibility as a similar prior act. Accordingly, the court did not err in
admitting the testimony of B.K. and Ruth E. on the issue of intent under
section 1101(b).
Defendant further contends that
assuming the challenged testimony is admissible under section 1101(b), its
probative value was outweighed by its prejudicial effect, pursuant to section
352.
section 1101(b) or 1108, in judging its admissibility under section 352 we
balance its probative value “against four factors: (1) the inflammatory nature of the
uncharged conduct; (2) the possibility of confusion of issues;
(3) remoteness in time of the uncharged offenses; and (4) the amount
of time involved in introducing and refuting the evidence of uncharged
offenses.†(Branch, supra, 91 Cal.App.4th at p. 282.)
We have already discussed the
substantial probative value of B.K.’s and Ruth’s testimony on the issues of
intent and lack of accident. (See
172, 179 [noting that “[e]vidence of a prior sexual offense is indisputably
relevant in a prosecution for another sexual offense†and that “the rationale
for excluding such evidence is not that it lacks probative value, but that it
is too relevantâ€].) Turning to the
factors we must balance against the probative value of the testimony, we first
note the uncharged offenses described by B.K. and Ruth E.are less
inflammatory than the charged offenses as they did not involve any touching of
the vagina or breasts.
In addition, the probative value of
the testimony of B.K. and Ruth E. clearly outweighed the possibility of
confusion of the issues. As we noted in
viewed this factor in terms of “whether or not the defendant has been convicted
of the uncharged prior offense†due to “the danger that the jury may wish to
punish the defendant for the uncharged offenses. . . .†(Branch,
supra, 91 Cal.App.4th at p. 284.)
Here, as defendant points out, he
was not charged in connection with his offenses against B.K. and Ruth. However, defendant fails to identify, aside
from speculative inferences, any evidence in support of his assertion that the
jury sought to punish defendant for committing the prior uncharged offenses in
lieu of determining his guilt or innocence on the charged offenses. Indeed, the inquiries sent to the court by
the jury during deliberations supports a finding that the jury, consistent with
the court's instructions, evaluated the evidence and reached a verdict on the
current charges. Specifically, the jury
asked for copies of the jury instructions and specific charges, whether count
one relates specifically to the crotch area and count 2 relates specifically to
the nipple area, and for a read-back of Jane Doe’s testimony on direct
examination. Accordingly, nothing in the
record indicates the jury was confused by the challenged testimony, or that the
jury wanted to punish defendant for his acts against B.K. and Ruth E.
rather than his acts against Jane Doe.
Turning to the last two factors
relevant to the trial court’s exercise of discretion under section 352 we first
note that the evidence of uncharged
offenses was not remote in time. “No
specific time limits have been established for determining when an uncharged
offense is so remote as to be inadmissible.
(Branch, supra, 91 Cal.App.4th
at p. 284.) Also, “[r]emoteness of
prior offenses relates to ‘the question of predisposition to commit the charged
sexual offenses.’ (Citation.)†(
theory “a substantial gap between prior offenses and the charged offenses means
that it is less likely that the defendant had the propensity to commit the
charged offensesâ€].) Here, the acts
against B.K. took place less than 5 years before the offense of conviction and
those against Ruth E. less than 10 years before the offense of
conviction. Thus, the acts against B.K.
and Ruth E. were not too remote in time (see Ewoldt, supra, 7 Cal.4th at p. 405 [12-year gap deemed not too
remote]), and together they indicate a predisposition to commit the charged
offenses that continued over time.
The final factor is the consumption
of time involved in addressing the prior offenses. Here, Ruth’s testimony, including cross-examination,
consumed 45 minutes and a review of
the reporter’s transcript of B.K.’s
testimony suggests that consumed no more time than Ruth's testimony. Also, defendant’s denial of their claims
consumed little of his overall testimony.
Thus, it does not appear that substantial court time was required to
address the issues relating to the uncharged offenses.
In sum, the probative value of the
challenged testimony was great. On the
other hand, none of the factors against which probative value must be balanced
weigh heavily in favor of excluding the testimony. Thus, we find that the trial court properly
exercised its considerable discretion in admitting the challenged testimony and
that it was admissible under section 352.
(See Branch, supra, 91
Cal.App.4th at p. 286 [noting that under section 352 exclusion of evidence
is permissible “only if its probative value is ‘substantially outweighed’ by
the ‘probability’ that its admission will create a ‘substantial’ danger of
‘undue’ prejudiceâ€].)
B. Jury
Instruction on Character Evidence
The trial court gave CALCRIM 350
regarding the jury’s consideration of character evidence, modified as
follows: “You have heard opinion and
reputation evidence that defendant is truthful and not unnaturally attracted to
young girls in the community where he lives or works. [¶] You may take
that testimony into consideration along with all the other evidence in deciding
whether the People have proved that the defendant is guilty beyond a reasonable
doubt. [¶] Evidence of the defendant’s character can by itself create a
reasonable doubt. However, evidence of the defendant’s good character may be
countered by evidence of his bad character for the same trait. You must decide
the meaning and importance of the character evidence. If the defendant’s character for certain
traits has not been discussed among those who know him, you may assume that his
character for those traits is good.â€
Defendant contends that CALJIC 2.40
is more favorable to the defense and more clearly written than CALCRIM 350, as
the latter is a “watered down†version
of CALJIC 2.40 and should be disapproved.
Defendant further contends he was prejudiced by CALCRIM 350 because it
was likely to influence the jury to disregard his favorable character
evidence.
Preliminarily, we note defendant
acknowledges that the CALCRIM 350 instruction was requested by his own trial
counsel as well as counsel for the prosecution.
Moreover, the trial court discussed the instruction with the parties and
defense counsel specifically approved the court’s suggested modifications of
CACRIM 350 to better fit the evidence presented at trial. Under these circumstances, the doctrine of
invited error bars defendant from challenging the CALCRIM 350 instruction
because he made a conscious and deliberate tactical choice to request the
instruction. (See People v. Lewis (2001) 25 Cal.4th 610, 667.) Having requested the instructions, the error,
if any, was invited and defendant cannot assert on appeal that he was
prejudiced. (Ibid.)
Moreover we reject, on the merits,
defendant’s contention that CALCRIM No. 350 is a watered down version of CALJIC
No. 2.40. The cited instructions reflect
virtually identical language. Specifically,
defendant complains that CALJIC 350 discourages the jury from giving
appropriate weight to character evidence because it permits the jury to “decide
the meaning and importance of the character evidenceâ€; however, CALCRIM 2.40
informs the jury in like manner that “the weight to be given to [character]
evidence is for you to decide.â€
In all events, even assuming
instructional error, defendant fails to establish prejudice arising from the
error. CALCRIM 350 instructs the jury in
part that “evidence of the defendant’s good character may be countered by
evidence of his bad character for the same trait.†Defendant asserts this language was
unnecessary because the prosecutor presented no "bad character"
evidence. Defendant argues this superfluous
language is misleading and prejudicial
because the prosecutor presented other crimes evidence allowing the jury to
consider the other crimes evidence as
adverse character evidence.
Notwithstanding defendant’s overly technical construction of these instructions,
our review of the entire charge given to the jury reveals no error. First, regarding evidence of other crimes,
the court specifically instructed the jury that “if you decide that the
defendant committed the offenses and acts, you may, but are not required to,
consider the evidence for the limited purpose of deciding whether or not the
defendant acted [with the necessary intent] . . .
[¶] . . . Do not conclude
from this evidence that the defendant has a bad character. . . .†(Italics added.) We presume the jury followed the instructions
to consider the other crimes evidence only for the limited purpose specified
and not to consider it as evidence of bad character.
name="_ftnref11" title="">[11] (People
v. Hernandez (2010) 181 Cal.App.4th 1494, 1502), [“It is axiomatic that
‘[j]urors are . . . presumed to have followed the court's
instructions’ â€].) Additionally,
the court specifically told the jurors that all the instructions might not
apply, and that they should only follow the instructions that apply based on
their factual findings. In sum,
defendant is unable to show it is “reasonably likely the jury was misled to
[his] prejudice†in the application of CALCRIM 350. (People
v. Hughes (2002) 27 Cal.4th 287, 341.)
D. Sydeman’s
Testimony
Defendant contends the trial court
erred in restricting the examination of William Sydeman by (1) sustaining
an objection when defense counsel tried to refresh Sydeman’s recollection of
the exact time of his drum lesson on the day in question; and,
(2) sustaining an objection when defense counsel asked Sydeman, “When you
originally talked to my investigator . . . did you tell him that you
thought you were on the porch†[on the day in question]?
was clearly harmless.
On direct examination Sydeman
testified initially that his drum lesson on the day in question was at “10:30
or 11:00 in the morning.†Counsel’s
request to refresh Sydeman’s recollection as to the exact time of the lesson by
looking at “an appointment book†was denied.
Thereafter, counsel asked again if he had “an absolute recollection of
when your appointment was?†and he answered, “I believe it was at 10:30.†On cross-examination, Sydeman confirmed he
took “lessons every Saturday . . . at 10:30 [a.m.]†Contrary to defendant’s assertion, therefore,
there was no “missing information†regarding the time of Sydeman’s
lesson—Sydeman’s testimony established his lesson was at 10:30 a.m. In any event, the exact time of Sydeman’s
lesson was not material; rather, the important fact was that his lesson
immediately followed Jane Doe’s lesson every week, and his testimony was
uncontroverted on that point.
Turning to the court’s ruling sustaining the
prosecutor’s objection to defense counsel’s question about what Sydeman may
have told the defense investigator, the record discloses that Sydeman
testified, on both direct and cross-examination, that on the day in question he
was running late; after parking his car, he went straight into his lesson and
did not have to wait on the porch for Jane Doe’s lesson to end. This was perhaps not the testimony defense
counsel hoped for; nevertheless, Sydeman gave other testimony that was both
helpful and uncontroverted. For example,
he testified that the louver blinds on the studio blinds on the studio were
open, not closed, and that he noticed nothing unusual or remarkable in Jane
Doe’s demeanor as she left defendant’s house.
Accordingly, we fail to see how an affirmative answer by Sydeman on
re-direct examination, admitting he told the defense investigator he was on the
porch prior to his lesson, and thereby impeaching his earlier testimony, would
have furthered defendant’s cause in any way.
Thus, any error in sustaining the prosecutor’s objection was
harmless. (See People v. Boyette (2002) 29 Cal.4th 381, 428-429 [trial court’s
erroneous limitation on questioning of witness was harmless because “it is
[not] reasonably probable that a result more favorable to [defendant] would
have been reached in the absence of the error,†citing People
v. Watson (1956) 46 Cal.2d 818, 836].)
E. Eade’s
Testimony
On direct examination, defense counsel questioned Eade concerning
defendant’s “20-plus-year tenure†of the drum music studio at his music store,
Starz Music, in Petaluma. Then counsel
asked Eade, “And based on your contact with Starz, students, parents, managers,
did you develop an opinion about whether or not [defendant] . . . had
an unnatural sexual interest in young girls?â€
Eade answered, “Yes, he did not have an interest.†The colloquy continued as follows:
“Q. Now do you also have an opinion about his
reputation in the community, based on your contact with students, parents,
managers . . . ?
A. Yes.
Q. “And so prior to February of ‘09,
what was your opinion about his reputation in the community as it relates to
any kind of deviant sexual interest in young girls?â€
A. I had no reason to believe that there
was any such behavior.
Q. So in your mind what was his reputation
in that regard?
[¶] . . .
[¶]
A. Okay.
His reputation was impeccable, as far as I was concerned.â€
On cross-examination, the prosecutor
asked Eade how many times, during the
interactions he witnessed between defendant and juvenile students, he
saw defendant “kiss a juvenile student on the lips.†Eade replied, “Never.†Eade gave the same answer when the prosecutor
asked if he had observed defendant “touching a juvenile student’s thigh.†Over defense counsel’s objection, the
prosecutor next asked if Eade would “have the same opinion today†if he “had []
observed [defendant] kissing a student on the lips.†Eade replied, “I would certainly question it.†The prosecutor followed with, “Now what is
your familiarity with the allegations against [defendant] to which you are
testifying?†Here, defense counsel
interposed another objection, stating “this has no relevance because of the
date I asked.†After the court overruled
the objection, Eade replied, “I have very little knowledge of it[,]†adding
that he was unaware of “the specifics,†including the age of the victim or the
touching alleged.
2. Analysis
Based on the facts set forth above, defendant contends: (1) trial counsel provided ineffective
assistance by “opening the door†to damaging cross-examination of Eade; (2) the
trial court erred by overruling defense counsel’s objection when the prosecutor
questioned Eade about the offenses alleged against defendant.
Defendant’s contentions relating to Eade’s testimony are governed by
the legal principles set forth in People
v. Qui Mei Lee (1975) 48 Cal.App.3d 516 (Lee) regarding proper cross-examination of a defense character
witness. In Lee, a jury convicted defendant of misappropriation of public
funds. (Id. at p. 519.) At
trial, a defense character witness “testified on direct examination that
defendant’s reputation for truth and honesty in the community where she lived
and worked was and is above reproach.
He also in effect gave his personal opinion that defendant was and is honest.†(
added].) On cross-examination, over
defense counsel’s objection, the prosecutor asked the witness if he had heard
about the specific acts defendant stood accused of, and whether he took those
into account in forming his opinion of defendant’s character. (Id.
at pp. 524-525.) On appeal,
defendant argued the prosecutor’s cross-examination of the character witness
amounted to prejudicial misconduct. (
The appellate court in
direct examination†determines the proper scope of cross-examination. (Lee,
supra, 48 Cal.App.3d at p. 527.) Accordingly, if a character witness
gives an opinion of defendant’s reputation as of the time of and prior to the
alleged offense, then “any cross-examination regarding his having heard of the
charged offense would exceed the scope of the direct examination and thus be
improper.†(Lee, supra, 48 Cal.App.3d at pp. 526-527.) On the other hand, if the “the witness’
testimony is delivered in the present tense†then the prosecutor may ask on
cross-examination “whether he in fact has heard of the commission of the offense
for which the defendant is on trial.†(
Here, defendant asserts trial
counsel failed to limit Eade’s direct examination to the time period prior to
the offense. On that basis, he asserts
trial counsel failed to act as a reasonably competent attorney within the
meaning of Strickland v. Washington (1984)
466 U.S. 668. Defendant’s assertions,
however, are clearly belied by the record.
In her questioning of Eade, defense counsel limited her examination to
the time during which defendant occupied a drum studio at Starz Music, which was
years before the offense occurred. Only
one question post-dated Eade’s ownership of Starz Music—when trial counsel
asked for Eade’s opinion “prior to February of ‘09,†i.e., prior to the
time of the charged offenses.
Accordingly, the record shows trial counsel limited her questioning to
“the time of or preceding the charged offense,†consistent with the appellate
court’s guidance in Lee. (Lee,
supra, 48 Cal.App.3d at pp. 526-527.)
Moreover, trial counsel specifically objected (and was overruled) when
the prosecutor asked the question at issue.
In short, trial counsel’s performance on this matter was adequate in all
respects, thus defendant’s ineffective assistance claim fails.
In his supplemental brief, defendant
contends that the trial court, pursuant to Lee,
supra, 48 Cal.App.3d 516 should
have sustained trial counsel’s objection when the prosecutor asked Eade if he
would hold the same opinion “had you observed [defendant] kissing a student on
the lips? Defendant asserts he was
prejudiced because “if Eade’s testimony had not been impeached by the ‘kiss on
the mouth’ question, the jury would have concluded that it was highly unlikely
that . . . 22 years [would have elapsed] without a complaint if he
was a person disposed to molest children.â€
This contention lacks merit.
As an initial matter, we are not
persuaded the trial court erred in overruling defense counsel’s objection. Before posing the question at issue, the
prosecutor asked whether Eade, in observing defendant interact with students at
Starz Music, had ever seen defendant kiss a student on the lips, cheek, or
forehead. After Eade replied “No†to all
three questions, the prosecutor asked, “Had you observed [defendant] kissing a
student on the lips, . . . would you have the same opinion today, or
would you hesitate?†Viewed in context,
the question was not necessarily improper, because it was framed in relation to
Eade’s ownership of Starz Music, which predated the time of the charged offense
by several years. (See
p. 527.)
Moreover, even assuming the trial
court erred by overruling defense counsel’s objection, the error did not
prejudice defendant. In reply to the
prosecutor’s question whether Eade would have the same opinion of defendant if
he had seen defendant “kiss a student on the mouth question,†Eade stated, “I
would certainly question it.†The
hypothetical nature of the prosecutor’s question, and Eade’s necessarily
conditional answer to it, did not undermine Eade’s prior opinion testimony, on
direct examination, that defendant’s reputation in the community as it relates
to deviant sexual interest in young girls was “impeccable.†Indeed, Eade’s candor in answering the
prosecutor’s question demonstrated an impartial mind and, if anything, may have
bolstered his credibility before the jury.
In all events, Eade’s answer to the prosecutor’s “kiss-on-the-mouth
question†was a matter of minor significance in relation to the matter at the
heart of the case—the jury’s ultimate credibility determination between
defendant and the victim. Thus, even if
the court erred in overruling defense counsel’s objection, reversal is not
warranted. (See People v. Ramirez (1990) 50 Cal.3d 1158, 1193-1194 [error allowing
prosecution to exceed the scope of direct examination did not warrant reversal
because “there is no reasonable possibility that the error could have affected
the judgment in this caseâ€].)
Disposition
The judgment is affirmed.
_________________________
Jenkins,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
name="_ftn1" title="">[1] Further statutory
references are to the Penal Code unless otherwise noted.
admitted the testimony of B.K. and Ruth E. pursuant to Evidence Code,
section 1101, subdivision (b) (section 1101(b)) and Evidence Code, section 1108
(section 1108).
