P. v. Jessee
Filed 5/15/13 P. v. Jessee CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
>
THE PEOPLE, Plaintiff and Respondent, v. MARK JESSEE, Defendant and Appellant. | D061402 (Super. Ct. No. SCD225723) |
APPEAL from
a judgment of the Superior Court
of
County, Amalia L. Meza, Judge.
Affirmed.
David L.
Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Kimberley Donohue, A. Natasha
Cortina, Deputy Attorneys General for Plaintiff and Respondent.
A jury
convicted Mark Jessee of three counts of a lewd act on a child (Pen. Code,
§ 288, subd. (a); counts 1, 2 and 3) and
§§ 269/286; count 4). The trial
court sentenced him to an indeterminate term of 15 years to life on count 4,
plus a consecutive determinate 10-year state prison term on counts 1 through 3
(a midterm of 6 years for count 1 and consecutive two-year terms for counts 2
and 3). On appeal, Jessee contends the
trial court prejudicially erred by admitting certain evidence under Evidence
Code
sections 1108 and 1101. We affirm the
judgment.
FACTUAL AND
PROCEDURAL BACKGROUND
Jessee does
not challenge the sufficiency of the evidence of his convictions, so we set out
the offenses in a summary fashion for purposes of evaluating his evidentiary
error claims about prior charged and uncharged
v. Miramontes (2010) 189 Cal.App.4th 1085, 1090 (Miramontes).)
In 2004,
Jessee's younger brother, Angelo L., permitted Jessee to live with him and
Angelo's then 10-year-old daughter A. in a two-bedroom home while Angelo's wife
G., a service member, was deployed. A.
and Angelo shared one room while Jessee slept in the other. During the next few months, while Jessee was
babysitting A. and they were alone, Jessee touched her inappropriately, taking
her shirt off and touching her breasts.
He also hit and sodomized A. on one occasion, removing her clothes and
putting her face down on his bed to do so, when he became upset after she
discovered pornographic videos in his room.
A. asked him to stop but he did not.
Afterwards, Jessee told A. she could not tell anyone he had touched her
in that way.
In 2009,
Angelo began counseling, which revealed that when he was six years old and
Jessee was about 11 years old, Jessee had made Angelo orally copulate him. Angelo reported the sexual abuse by Jessee to
G., who had since moved to Maryland
after her return from deployment, and G. questioned A., who denied any abuse by
Jessee. About a month later, however, in
late May or early June of 2009, A. finally told her mother about Jessee's
actions. G. informed police in Maryland.
Before
trial, the court granted the People's in limine motions to introduce evidence
of Jessee's sexual acts against Angelo, as well as the testimony of Deborah F.,
who met Jessee while walking home from school and had a sexual relationship
with him when she was 13 years old. The
court permitted introduction of the evidence concerning Angelo, reasoning the
oral copulation acts between Angelo and Jessee were not more inflammatory than
the offenses against A.; the acts were committed against relatives; while the
conduct was not as similar as the incident with A., it did not need to be under
section 1108; and the conduct was not so prejudicial that it should be removed
from the jury's consideration. The court
also reasoned that Jessee subsequently had not led a blameless life, thus
lessening any concern about remoteness.
As to Jessee's offenses with F., the court allowed the testimony under
section 1108 as well as 1101, subdivision (b) regarding Jessee's intent,
possibly lack of mistake or accident, and knowledge.
Accordingly,
at trial, F. testified that when Jessee was 23 years old and she was 13 years
old, Jessee led F. to believe they were starting a boyfriend-girlfriend
relationship; Jessee would walk her to and from school, and bring her flowers
and gifts, but it quickly turned into kissing and then a sexual
relationship. While F. was 13 years old
and over the next two years, Jessee fondled F.'s breasts, engaged in sexual
intercourse with F., and sodomized her with his fingers. F. testified there was force involved in
their sex acts in that she did not feel she had a choice. She also testified Jessee physically hurt
her, once throwing her across a room.
Jessee instructed F. to keep their relationship a secret so she did not
tell her parents, but her parents ultimately learned of it and the relationship
ended. After Jessee's acts with F. were
reported to police, Jessee pleaded guilty, served five months in jail, and was
put on three years of probation.
The People
also introduced Jessee's interview with San Diego Police Detective Stacee
Botsford, during which Jessee admitted the sexual conduct with Angelo and F.,
but denied any wrongdoing with A. As for
Angelo, Jessee claimed they were just kids "fooling around with each other
sexually" and that it was a "mutual thing." In that interview, Jessee said that when
Angelo was older, he had wanted to continue that relationship but that Jessee
made it clear it was not going to happen.
Jessee told the detective that Angelo perceived the situation as
about the past, had accused Jessee of ruining his life, and had
"flooded" his and his girlfriend's phones with text messages. Jessee said Angelo told him he would not stop
until he "ruin[ed] [Jessee's] life," and he anticipated that Angelo
or one of his friends would try to hurt him because of it.
Defense Evidence
Jessee, who
was 44 years old at the time of trial, testified in his defense. He admitted to being a "very
self-centered drug addict and alcoholic" before becoming involved in the
church, which caused him to change his behavior. He acknowledged his relationship with F., but
denied having any interest in prepubescent girls then or at present. Jessee denied sexually or physically
assaulting F., but conceded he hurt her because she was not emotionally ready
for that "kind of relationship."
Jessee
admitted that when he was 11 and 12 years old, after swimming or going to the
beach and then showering, he and Angelo would touch each other's genitals and
orally copulate each other. He did not
recall forcing Angelo, but stated it was his idea and he admitted
responsibility for the situation.
Jessee
testified he did not rape A., sodomize her, touch her breasts in a sexual or
any way, or view her in a sexual way. He
denied assaulting or punching her.
I.
Misconduct to Prove Propensity under Section 1108
Jessee
contends the trial court prejudicially erred by admitting evidence of the
sexual abuse of his brother Angelo, as well as his prior sexual contact with
F. Pointing out his counsel had conceded
the evidence fell within the scope of section 1108, Jessee maintains the
evidence was more prejudicial than probative, and should have been excluded
under section 352.
A.
Generally,
evidence of a defendant's character is not admissible to prove his conduct on a
specific occasion conformed to his character.
(§ 1101, subd. (a).) An exception
to this rule is set forth in section
1108, subdivision (a), which states:
"In 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." (§ 1108, subd.
(a).)
Under
section 352, the trial court may "exclude evidence if its probative value
is substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury." (§ 352.)
"The weighing process
under Evidence Code section 352
trial court's consideration
of the unique
facts and issues
of each case,
rather than upon
the mechanical application
of automatic rules.'
" (Miramontes, supra, 189 Cal.App.4th at p.
1097.) When considering whether to
exclude evidence of another sexual offense under section 352, "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." (People v. Falsetta (1999) 21 Cal.4th 903, 917.) "[T]he probative value of 'other crimes'
evidence is increased by the relative similarity between the charged and
uncharged offenses, the close proximity in time of the offenses, and the
independent sources of evidence (the victims) in each offense . . .
." (Id. at p. 917.) Further,
"the prejudicial impact of the evidence is reduced if the uncharged offenses
resulted in actual convictions and a prison term, ensuring that the jury
would not be tempted to convict the defendant simply to punish him for the
other offenses, and that the jury's attention would not be diverted by having
to make a separate determination whether defendant committed the other
offenses." (Ibid.) In evaluating whether to admit evidence of
other sexual offenses, the court should consider " 'whether
"[t]he testimony
no stronger and
no more inflammatory
than the testimony
concerning the charged
offenses." ' "
(Miramontes, 189 Cal.App.4th at p. 1097.)
On appeal, a trial court's ruling
under section 1108 is subject to review for abuse of discretion. (People v. Loy (2011) 52 Cal.4th 46, 61; People v. Dejourney (2011) 192
Cal.App.4th 1091, 1104; Miramontes,
supra, 189 Cal.App.4th at p. 1098.) We will
not find
section 1108 unless the court's
ruling " ' "falls outside
the bounds of
reason" ' " and the
its discretion in
an arbitrary, capricious or patently absurd
1098; People v. Lewis (2009) 46
Cal.4th 1255, 1286.)
B.
Jessee
maintains the evidence of his sexual misconduct with Angelo was insufficiently
probative or unduly prejudicial under section 352. Relying on factors discussed in
727, he argues that the prior uncharged acts were at least as inflammatory as
those against A. He argues that evidence
of his uncharged acts had a high risk of causing the jury to punish him for
them in the present case; that the prior misconduct, which occurred over 25
years previously in 1979, was remote; the prior misconduct was too dissimilar
to the acts against A. to have any probative value; and the evidence had no
tendency to show Jessee had a propensity for committing the type of sex crime
charged in the present case absent expert testimony, which was not
offered.
Regarding
the similarity of the acts, the court in People
v. Loy, supra, 52 Cal.4th 46
explained: " 'In enacting . . .
section 1108, the Legislature decided evidence of uncharged sexual offenses is
so uniquely probative in sex crimes prosecutions it is presumed admissible
without regard to the limitations of . . . section 1101.' [Citation.]
. . . '[T]he charged
need not be
sufficiently similar
the latter would
be admissible under
. . . section 1101, otherwise
It
charged and uncharged
offenses are sex
offenses as defined
in section 1108.' " (Loy, at p. 63, quoting People
v. Frazier (2001) 89 Cal.App.4th 30, 40-41; see also Miramontes, supra, 189
Cal.App.4th at p. 1099.) The similarity
of the acts, however, are relevant to the trial court's exercise of
discretion. (Loy, at p. 63.)
Here, while
Jessee's acts against Angelo may not have been sufficiently similar to his acts
against A. to be admissible under section 1101, there are nevertheless some
similarities. The acts were committed
against relatives: his brother and niece, and Jessee took advantage of the
victims at convenient times while they were isolated from others; Angelo in a
bedroom and A. when he was babysitting her and no one was home. Both victims were young, prepubescent
children at the time. Though we
acknowledge some significant differences in the circumstances and acts against
Angelo and A., we cannot say admission of Jessee's acts against Angelo is
arbitrary, patently absurd, or otherwise a manifest abuse of the trial court's
discretion.
Nor did the
trial court err by concluding the acts against then six-year-old Angelo,
alleged forced oral copulation,
name="_ftnref2" title="">[2]
were no more inflammatory than the forcible sodomy on A., who was 10 years old
at the time the offenses took place. We
disagree the facts of Jessee's actions against Angelo were so inflammatory or
prejudicial as to preclude their admission in this case on the issue of his
propensity to commit such acts. None of the prior acts involved extreme
violence or severe injuries as did the defendant's prior conduct in People
v. Harris, supra, 60
Cal.App.4th 727, on which Jessee relies.
Further,
the People spent minimal time addressing Jessee's prior act against Angelo; it
was introduced by two short questions to Angelo without any inflammatory
details beyond the act
name="_ftnref3" title="">[3]
and via Jessee's admissions over the course of approximately three and a half
pages of a 25-page transcription of his interview with Detective Botsford. Jessee's counsel then expanded on the
incident in cross-examination of both Angelo and his redirect examination of
Jessee's pastor, asking Angelo if he discovered the abuse by Jessee through
counseling and asking Jessee's pastor if he believed Jessee was giving honest
answers when he admitted to those acts during his police interview.
As for the
passage of time since the acts, there are no specific time limits establishing
when a prior offense is so remote as to be inadmissible (People v. Pierce (2002) 104 Cal.App.4th 893, 900), and appellate
courts have upheld the admission of prior offenses committed 20 to 30 years
before the offenses at issue. (
1335, 1388-1389 [prior gun assaults, including 28-year-old assault, properly admitted, particularly
where similar assaults had recurred over a lengthy period of time]; People
v. Branch (2001) 91 Cal.App.4th 274, 284 [30-year-old sex offense properly
admitted]; People v. Pierce, at p. 900 [23-year-old rape conviction]; People v.
Soto (1998) 64 Cal.App.4th 966, 977-978, 991-992 [21- to 30-year old
crimes]; People v. Waples (2000) 79 Cal.App.4th 1389, 1393, 1395 [18- to
30-year-old offenses properly admitted].)
That Jessee committed other sex offenses against F. approximately 11
years later when he was 23 years old, adds probative value to the uncharged offenses
against Angelo. (Spector, at p. 1389.)
We agree there was a risk the
jury would be tempted to convict Jessee of the current charges to assure he was
punished for the prior uncharged offense.
(See People
v. Branch,
p. 42.) But the trial
court gave the jury instructions that focused its attention on the current
charges and advised it about the limited way in which it could consider the
evidence of the uncharged assault on Angelo in relation to those charges.
name="_ftnref4" title="">[4] We conclude those instructions
"counterbalanced" that risk. (
purpose of evidence of prior uncharged sex crimes reduced possibility of jury
confusion].)
This court
has explained that " ' "[t]he 'prejudice'
referred to in
Evidence Code section 352 applies
uniquely tends to
evoke an emotional
bias against defendant
as an individual
and which has
very little effect
on the issues.
In
is not synonymous
with 'damaging.' " '
" (Miramontes, supra, 189
Cal.App.4th at p. 1098; People v. Dejourney, supra,
192 Cal.App.4th at p. 1105; see also People v. Karis (1988) 46 Cal.3d
612, 638.) "The code speaks in
terms of undue prejudice" and
thus evidence should be excluded as unduly prejudicial " 'when it is of
such nature as to inflame the emotions of the jury, motivating them to use the
information, not to logically evaluate the point upon which it is relevant, but
to reward or punish one side because of the jurors' emotional reaction.'
" (People v. Branch, supra, 91 Cal.App.4th at p.
286.)
Here, we
cannot say Jessee sufficiently demonstrated that the evidence of the uncharged
acts against Angelo would unduly prejudice him with the jury, or that the
prejudice resulting would substantially outweigh the probative value of the
evidence for purposes of section 1108.
The acts are "extremely relevant" to his charged offenses (
Jessee tried to paint A. as mistaken or a liar.
(People v. Waples,
evidence highly relevant to dispute an attempt to paint current victims of sex
offenses as liars or mistaken in their claims of molestation].) Under the relevant standards, and viewing the
evidence in the light most favorable to the trial court's ruling (see People
v. Carter (2005) 36 Cal.4th 1114, 1148), we cannot conclude the court's
decision to admit Angelo's testimony as to defendant's prior acts was
arbitrary, capricious, manifestly absurd, or exceeded the bounds of
reason. (People v. Mullens (2004) 119 Cal.App.4th 648, 658.)
Thus, we
perceive no miscarriage of justice in the admission of the prior act evidence
as to Angelo under section 1108 to prove Jessee's propensity to commit the
charged offenses. (People v. Dejourney, supra,
192 Cal.App.4th at p. 1105.) Even if we
were to reach a different conclusion that an abuse of discretion occurred, it
would be harmless error. Jessee
maintains A.'s credibility was weak in view of the fact she had waited four
years to report the misconduct; neither her father or mother noticed any signs
of abuse; A. initially denied any abuse and only reported it to a vice
principal after getting into a fight at school; that in Jessee's prior trial on
the charges, the jury was unable to reach a verdict resulting in a mistrial;
and that the trial presented a close credibility call as reflected by the
jury's request for a readback of A.'s testimony. He claims his credibility was stronger, and
"bolster[ed]" by evidence of his religious transformation as well as
the "requirement of honesty that is a prominent component of his
faith." The record shows that the
jury not only asked for a readback of A.'s testimony but also the recording of
Jessee's interview with Detective Botsford.
Contrary to Jessee's argument, we perceive from the jury's readback that
it carefully reviewed the evidence to determine whether it presented a serious
question concerning A.'s credibility and any reasonable doubt as to Jessee's
guilt. Further, Jessee admitted that at
the time of the offenses against A., he was still an alcoholic and smoked
marijuana, often drinking four or five times a week and sometimes more, and drank
to the point of intoxication. He
admitted he maintained an addiction to pornography, some of which involved
women dressed as young girls. He also
admitted his inhibitions were lowered when he drank. The jury plainly determined A. to be credible
and Jessee was not, and having reviewed A.'s testimony, the testimony of her
father and mother, and the testimony of Detective Botsford, we conclude it is
not reasonably probable an outcome more favorable to Jessee would have resulted
absent any presumed error. (
836.)
C.
We likewise
perceive no abuse of discretion in the court's admission of the evidence
pertaining to Jessee's molestation of F.
The jury learned that Jessee had pleaded guilty in Oregon to a crime for
his conduct with F., had served five months in jail, was on probation for three
years, and had been required to register as a sex offender, though he failed to
meet that requirement for several years.
(Accord, People v. Loy,
conviction of prior assaults, which had been established and was certain,
"strongly, support[ed] their admission" under sections 1108 and
352].) As in Loy, Jessee
defending against the charges," and "[t]he jury would not be tempted
to convict him of the charged crime to punish him for the earlier
crime." (Loy, at p. 61; see also People
v. Lewis, supra, 46 Cal.4th at p.
1287.) "Additionally, the
conviction[] meant there was little danger of confusing the issues or requiring
an inefficient minitrial to determine defendant's guilt of the previous
crimes." (Loy, at p. 61.)
Further,
the evidence regarding Jessee's offenses against F. bore some similarity to the
present offenses against A., in that both offenses involved young girls, F. at
age 13, and A. at age 10; both involved the fondling of their breasts, sodomy,
the use of force or, at the very least, compulsion; and as to both, Jessee told
the girls to keep the acts secret. As
the People point out, F.'s testimony was brief; it took less than a half an
hour of about a day and a half of trial testimony, and spanned only about 14
pages of the trial transcript. Under all
of the circumstances, we cannot say the prejudicial factors outweighed the
probative value of this evidence, and conclude the trial court did not act
arbitrarily or irrationally in admitting it.
II.
Relationship with F. Under Section 1101
Jessee
further contends the trial court prejudicially erred by admitting the evidence
as to F. under section 1101, subdivision (b).
F.—which, as he characterizes it, established a "consensual"
relationship with a "post-pubescent teenager"—was not sufficiently similar
to the charged offenses to permit an inference of intent, and thus cannot
support a rational inference he harbored the same intent in each
situation. Jessee also points out his
defense was not that he lacked the requisite lewd intent, but that he did not
touch A. at all; that the incidents never occurred. Thus, he argues, the evidence lacked any
probative value on any issue in the case.
Finally, Jessee argues any possible slight probative value was
outweighed by the risk of prejudice.
Because we
have concluded the trial court did not err in finding the evidence as to F.
relevant and admissible under section 1108, we need not discuss its
admissibility under section 1101. (
abuse of discretion in admitting evidence prior assault under section 1101
rendered irrelevant the question of whether all of that evidence was admissible
under section 1108].) Nevertheless, our
analysis as to the similarities between the acts against F. and those against
A. is sufficient to establish the propriety of their admission under section
1101, subdivision (b), particularly as to common plan and scheme. " 'To establish the existence of a
common design or plan, the common features must indicate the existence of a
plan rather than a series of similar spontaneous acts, but the plan thus
revealed need not be distinctive or unusual.
[Citation.] '[A] common scheme or
plan focuses on the manner in which the prior misconduct and the current crimes
were committed, i.e., whether the defendant committed similar distinctive acts
of misconduct against similar victims under similar circumstances.' " (People
v. Walker, supra, 139 Cal.App.4th
at p. 803.) It is of no moment that the
court declined to admit the evidence on the intermediate fact of common scheme
or plan. " 'If a judgment
rests on admissible
evidence it will
not be reversed
because the trial
court admitted that
evidence upon a
different theory,
or one not
raised below.' " (People
v. Blacksher (2011) 52 Cal.4th 769, 806, fn. 21.)
Though
Jessee's intent with respect to the offenses against A. may not have been
disputed and F.'s testimony not necessarily probative on that particular issue,
the fact that F.'s testimony was highly probative on Jessee's propensity,
common design or plan, and the absence of mistake or accident, renders
nonprejudicial its admission for the purpose of proving intent. (Accord, People
v. Waples, supra, 79 Cal.App.4th
at pp. 1395-1396.)
DISPOSITION
The
judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McDONALD, Acting P. J.
AARON, J.
name="_ftn1" title="">[1] All statutory references are to the Evidence Code unless
otherwise stated.
name="_ftn2" title="">[2] The People maintain that the evidence did not show Jessee
used force to accomplish the oral copulation against Angelo, contrasting those
acts with the forcible sodomy of A.
Whether or not the acts against Angelo were forced, we nevertheless
would not find them to be more inflammatory than Jessee's act of removing A.'s
clothing, forcing her face down on the bed, and sodomizing her while she
pleaded for him to stop.
