P. v. Knanishu

Filed 12/10/08 P. v. Knanishu 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Kenneth Knanishu of lewd and lascivious conduct upon a child under the age of 14 years (Pen. Code, 288, subd. (a)) and dissuading a witness (Pen. Code,

136. 1, subd. (b)(1)). The court sentenced defendant to a 10-year term.^[1]

On appeal, defendant contends: 1) his upper term sentence for lewd and lascivious conduct upon a child violated his federal right to jury trial; 2) admission of child pornography evidence pursuant to Evidence Code section 1108 violated equal protection and due process; 3) letters related to defendants interest in child pornography were inadmissible under Evidence Code section 1101; 4) the child pornography and letters should have been excluded under Evidence Code section 352; 5) trial counsel provided ineffective assistance in failing to object to evidence that defendant possessed sexually explicit photographs of adult women; 6) admission of a pretextual call to defendant violated his right to confrontation; and 7) the prosecutor committed misconduct. We shall affirm.

BACKGROUND

N.B. was 10 years old and living in Orland with her grandparents, Vivian and Vader B., in December 2002. On December 22, N.B. went with her grandparents to visit defendant, a friend of Vader, at his Citrus Heights home.

N.B., Vivian, and defendant were in a room looking at antiques while Vader was in the living room watching television. Defendant asked N.B. if she wanted to have her picture taken or be videotaped by him. N.B. agreed and went into the master bedroom with defendant. Vivian did not see defendant approach N.B., but noticed her granddaughter leaving the room.

Defendant came into the master bedroom and told N.B. to lie down on the bed. According to her testimony and statement to the police, defendant took off N.B.s clothes and touched inside her vagina with one hand while filming her with a video camera held in his other hand.^[2]

N.B. tried to get up, but stopped after defendant said, What are you doing? It hurt her, and defendant said, Good job to N.B. as he molested the girl. When he stopped, defendant told N.B. she was beautiful, gave her two five-dollar bills, and told her not to tell anyone.

N.B. and defendant left the master bedroom for his living room, where N.B.s grandparents were watching television. Defendant sat N.B. on his lap and she looked depressed, so the grandparents and N.B. left a few minutes later. N.B. threw up on the drive home.

The next day, N.B. told Vivian defendant pulled down my pants and panties, spread my legs and took pictures, and I want Grandpa to get that tape[.] Vivian told Vader to call defendant and get the tape; Vader later called defendant, who had said they should come down and discuss the matter with him.

Vivian got a call from defendant later in the evening. Defendant, yelling, called N.B. a liar. During the call, defendant kept saying, I dont want to go to prison, and I dont want to die in prison. When Vivian told defendant he should not have touched N.B., he replied that he knew but did not want to go to prison. Defendant threatened to expose photographs of Vivian he had obtained from her husband, Vader, if Vivian called the police.^[3]

N.B. testified she had been molested by her grandfather Vader a couple of years before being molested by defendant. She told no one until after she reported the incident with defendant.

Police searched the grandparents home. In a room only accessible to Vader, police found photographs of N.B. without a shirt on and a video of her wearing a towel with Vader asking her to take the towel off. Identical photographs of the topless N.B. were found in defendants house.

N.B. admitted that after Vader molested her but before being molested by defendant, she started hallucinating and hearing voices telling her what to do. She was taking antidepressants for anger and depression at the time of the trial.

A search of defendants house shortly after N.B.s complaint found hundreds of pornographic photos of adult women but no child pornography. Defendant had a computer, but it was inoperable at the time.

A detective for the City of Fort Oglethorpe, Georgia, testified regarding evidence uncovered in his child pornography investigation of David Kelly in 2005. Over defendants objection, the court admitted letters written by defendant to Kelly.

In one letter, defendant writes he just caught my first good look at Judys cunt[!] It will be big and I will eventually verify this by way of video. She has a gorgeous mound and a very well defined slit with the little oval (clit area) at the top. Well you are right. I have become so enamored of Judys set[.] In the letter, defendant also writes about how he got someone named Celeste to pose with her pant legs pulled up, while Lea watched.

In another letter, defendant writes about photographs he sent to Kelly on a disk. Defendants letter refers to one I especially liked of a cute 84 to 96 on the bed with her back resting against a pillow and headboard committing oral sex on her big dicked Daddy. According to the detectives expert testimony, the phrase cute 84 to 96 refers to a childs age in months.

Kelly also provided police with two CDs containing child pornography. The CDs contained 125 photos depicting a total of 250 children in various stages of nudity and molestation. The court admitted, over defendants objection, four photographs from the CDs. The pictures submitted to the jury had post-it notes concealing the graphic portions.

At the behest of Georgia law enforcement, Kelly made a pretext call to defendant. The call was played over defendants objection. In the call, defendant admitted sending the CDs to Kelly.

An FBI special agent searched defendants house and interviewed him in February 2005. Defendant, who is in his 70s, told the special agent that all men in their 70s are interested in looking at pictures of children and said, Where do you differentiate, 10, 12, 24 as far as sexual interest.

Defendant told the special agent he met Kelly through a magazine and corresponded with him for about eight years. The two shared similar interests in music, antiques, and young girls. Defendant also admitted that his sexual fantasies centered on minor females. He admitted sending Kelly the CDs with sexually explicit images of minor females, but claimed he got them from Vader.

N.B.s father and her teacher in 2002 were called as defense witnesses. Her father stated N.B. had a tendency to twist things in the context of minor problems between her brother and herself, while N.B.s teacher testified to her problems with lying throughout the school year and her reputation for not telling the truth.

A raid of Vaders home uncovered a substantial collection of pornographic videos, including approximately 22 involving child pornography. Officers also found a pornographic story involving children containing a picture of N.B. in a swimming suit. Vader, who was called as a defense witness but invoked his self-incrimination privilege, told police he got some of the child pornography tapes from defendant.

DISCUSSION

I

Defendant contends the upper term sentence for lewd and lascivious conduct upon a child under the age of 14 violated his right to jury trial as recognized in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856]. We disagree.

The trial court stated that it was imposing the upper term on count one based on the following aggravating circumstances: 1) appellants lengthy prior criminal record, as documented in the probation report; 2) the evidence showed that appellant planned to commit the crime against the victim with assistance from Vader; 3) the victim was particularly vulnerable; and 4) appellant took advantage of a position of trust or confidence to commit the offense.

In Cunningham, the Supreme Court analyzed Californias determinate sentencing law and held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Cunningham, supra, at p. ___ [166 L.Ed.2d at p. 864].) Defendant was sentenced on October 10, 2007, after both the California Supreme Courts decision in People v. Sandoval (2007) 41 Cal.4th 825 and the Legislatures response to Cunningham, Senate Bill No. 40 (stats. 2007, ch. 3, 2).

Senate Bill No. 40 amended the determinate sentencing law so that: (1) the middle term is no longer the presumptive term absent aggravating or mitigating facts found by the trial judge; and (2) a trial judge has the discretion to impose an upper, middle or lower term based on reasons he or she states. As amended, section 1170 now provides as pertinent: When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . The court shall set forth on the record the reasons for imposing the term selected . . . . ( 1170, subd. (b).) Sentencing under this procedure cures the constitutional defect in the determinate sentencing law identified in Cunningham. (Sandoval, supra, 41 Cal.4th at p. 852.)

In Sandoval, the California Supreme Court held Senate Bill No. 40s amendments to the sentencing law could be applied retroactively to defendants without violating due process or the prohibition against ex post facto laws. (Sandoval, supra, 41 Cal.4th at p. 857.) Defendant disagrees with this conclusion, but admits we are bound to follow Sandoval. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).)

Although Sandoval addressed procedures for resentencing after a sentence was reversed for Cunningham error (Sandoval, supra, at pp. 843, 858), the decision applies with equal force to defendants whose crimes were committed after the effective date of Senate Bill No. 40. The trial court did not mention the Legislatures reform of the determinate sentencing law when it pronounced sentence, but we presume it was aware of and applied the appropriate decisional and statutory law. (People v. Coddington (2000) 23 Cal.4th 529, 644, disapproved on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Since nothing in the record indicates the court sentenced defendant under the old determinate sentencing law, we conclude it applied the procedures identified in Sandoval and therefore committed no Cunningham error when it imposed the upper term.

Even if the court sentenced defendant under the prior sentencing procedure, we would still find no Cunningham error. [I]mposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (People v. Black (2007) 41 Cal.4th 799, 816 (Black).)

The prior conviction exception is not to be construed too narrowly. (Black, supra, 41 Cal.4th at p. 819.) That exception applies not only to the fact of a prior conviction, but also to an issue of recidivism which enhances a sentence and is unrelated to an element of a crime. [Citation] (People v. Medrano (2008) 161 Cal.App.4th 1514, 1520.) In imposing the upper term, the court relied on several factors, including his lengthy criminal record. Since recidivism was one factor rendering defendant eligible for his upper term sentence, that sentence did not violate Cunningham.

II

Defendant makes several attacks against the admission of the letters and child pornography he sent to David Kelly. The court found that the child pornography evidence was admissible under Evidence Code section 1108, while statements in defendants letters to Kelly were admissible under Evidence Code section 1101 as evidence of intent. Defendant argues Evidence Code section 1108 violates his rights to due process and equal protection, the evidence in the letters was not admissible under Evidence Code section 1101, and all of the evidence should have been excluded pursuant to Evidence Code section 352. We disagree.

A.

Defendants claims regarding the constitutionality of section 1108 require little comment. The due process claim was rejected by the California Supreme Court in People v. Falsetta (1999) 21 Cal.4th 903 at pages 907, 916-922, and we are bound by that decision. (Auto Equity, supra, 57 Cal.2d at p. 455.) This court has rejected the equal protection claims tendered by defendant (People v. Fitch (1997) 55 Cal.App.4th 172, 184-185), and we decline any invitation to reconsider our decision. (See People v. Waples (2000) 79 Cal.App.4th 1389, 1394-1395.)

B.

Defendant contends the evidence in the letter was inadmissible under Evidence Code section 1101 because there is insufficient similarity between this conduct to the charged offense of molesting a young girl to support a common scheme or plan. We disagree, as the evidence was properly admitted to prove intent.

Evidence of defendants other crimes or misconduct is admissible to prove, among other things, intent, provided its relevance outweighs its potential prejudicial effect. (Evid. Code, 352, 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt).) The admissibility of such evidence depends upon the materiality of the fact sought to be proved or disproved, the tendency of the uncharged crime to prove or disprove the material fact, and the existence of any policy requiring exclusion of the evidence. [Citation.] (People v. Catlin (2001) 26 Cal.4th 81, 146.)

The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] [T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . . [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant probably harbor[ed] the same intent in each instance. [Citations.] [Citation.] (Ewoldt, supra, 7 Cal.4th at p. 402.)

We conclude the evidence was properly admitted to prove intent. To prove a section 288, subdivision (a), offense, the People must show the defendant acted for the purpose of sexual arousal. (People v. Martinez (1995) 11 Cal.4th 434, 445.) The letter in question, in addition to containing statements about Judys vagina, also contained references to posing another female. Although this letter does not refer to the age of these people, in another letter, defendant refers to oral sex performed on a big . . . Daddy by a cute 84 to 96, a reference to a childs age in months. Taken together, these letters are relevant to prove defendants intent to obtain sexual gratification through molesting and photographing young girls, and thus were admissible under section 1101.

C.

Defendant asserts the letters and CDs should have been excluded pursuant to Evidence Code section 352. A trial courts exercise of discretion under section 352 will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

As we have already determined, the evidence of defendants interest in child pornography and obtaining sexual satisfaction through young girls was clearly relevant to prove his intent to obtain sexual gratification by molesting his 10-year-old victim. Although much of this evidence is disturbing, it is not prejudicial in the context of the crime it was admitted to prove.

In People v. Memro (1995) 11 Cal.4th 786 at page 865, the California Supreme Court concluded the trial court did not err in admitting magazines that contained sexually suggestive stories and photographs depicting clothed and unclothed children possessed by defendant as evidence of his motive and intent to perform lewd or lascivious acts on the victim. The court rejected the defendants claim the admission of this evidence violated Evidence Code section 352, concluding: We find no abuse of discretion in admitting the magazines or the photographs. To be sure, some of this material showed young boys in sexually graphic poses. It would undoubtedly be disturbing to most people. But we cannot say that it was substantially more prejudicial than probative, for its value in establishing defendants intent to violate section 288 was substantial. (Memro, supra, at p. 865.)

Here, the trial court carefully considered the evidence and supported its ruling in a detailed, well-written opinion. In a case where the victim testified to defendant molesting her when she was 10, the letters and CDs, although clearly unsettling, are not unduly prejudicial. The trial courts conclusion that probative value outweighed prejudice was neither arbitrary, capricious nor patently absurd.

III

The sheriff who first searched defendants house testified without objection to seizing hundreds of pornographic photographs of adult women. The trial court subsequently observed this evidence was not really relevant. Defendant now contends trial counsels failure to object to the adult pornography evidence constituted ineffective assistance of counsel. He is mistaken.

In order to find he suffered prejudicial ineffective assistance of counsel, defendant must show (1) counsels performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and (2) absent counsels error, it is reasonably probable that the verdict would have been more favorable to him. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] (Strickland).)

We do not need to determine whether counsels performance was deficient because it is clear defendant was not prejudiced by the failure to object. (Strickland, supra, 466 U.S. at p. 697 [80 L.Ed.2d at pp. 699-700].) The trial court correctly admitted considerable evidence showing defendants possession and use of child pornography along with his interest in obtaining sexual gratification through young girls. In light of this evidence, it is inconceivable defendant was prejudiced by the admission of evidence showing a sexual interest in adult women.

IV

Relying on Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford), defendant contends the statements made by Kelly in the pretext call were admitted in violation of his Sixth Amendment right to confrontation. His point is not well taken.

In Crawford, the United States Supreme Court held out-of-court statements, which are testimonial in character, are barred by the Sixth Amendments Confrontation Clause unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. (Crawford, supra, 541 U.S. at p. 59 [158 L.Ed.2d at p. 197].) Crawford does not extend to every out-of-court statement. The Confrontation Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it. (The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.) [Citation.] (Id. at p. 59, fn. 9 [158 L.Ed.2d at p. 198, fn. 9].)

It is clear that Kellys statements in the pretext call do not implicate defendants right to confrontation. Before the call was played, the jury was instructed: As you listen to and read the transcript of this call, the questions that are attributed to Mr. Kelly and any statements attributed to Mr. Kelly are not evidence, similar to questions from counsel not being evidence. They are simply questions, and do not go to the truth of the matter in terms of what was stated in those questions and statements that are on the transcript and in the audio portion of the CD.

Kellys statements were used at trial to give context to incriminating admissions made by defendant during the pretext call. Defendants admissions did not violate his right to confrontation, as he was available at trial to defend or explain his statements. (Crawford, supra, 541 U.S. at p. 59 [158 L.Ed.2d at p. 197].) Since Kellys statements neither directly nor indirectly implicated the Confrontation Clause, defendants claim is without merit.

V

During closing argument the prosecutor made the following statement: But Mr. Knanishu, he has an abnormal sexual interest in girls, young ones. He told the FBI the sexual fantasy focuses on young girls. He told the FBI this. Thats uncontradicted, because the special agent got up and told you about that conversation. That is uncontradicted. Defense counsel immediately objected.

In response, the prosecutor said she was referring to the minimal cross-examination of the FBI special agent by defense counsel and the absence of evidence contradicting the special agents testimony. The trial court overruled the objection, finding while the prosecutors comments did not really reflect what she intended to say, any prejudice was cured in light of the jury instructions that counsels statements are not evidence and the jury is not to consider defendants decision not to testify.

Defendant claims the prosecutors statements were prejudicial misconduct which violated his Fifth Amendment self-incrimination privilege. We disagree.

It is improper for a prosecutor to ask the jury to treat a defendants silence as evidence of guilt. (Griffin v. California (1965) 380 U.S. 609, 615 [14 L.Ed.2d 106, 110].) Such comment intrudes on the defendants right to remain silent. However, the prosecutor has the right to comment on the state of the evidence or on the defenses failure to introduce material evidence. (People v. Turner (2004) 34 Cal.4th 406, 419 (Turner).)

The testimony of the special agent related many damaging statements from defendant concerning his sexual interest in young girls. The prosecutors argument did not mention defendants failure to take the stand, instead focusing on the FBI agents damaging testimony and the lack of any response from the defense. This was no more than a fair comment on the evidence and therefore does not violate Griffin.

Even if we were to conclude the statement violated Griffin, any error would be harmless. [B]rief and mild references to a defendants failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error. [Citation.] (Turner, supra, 34 Cal.4th at pp. 419-420.) The prosecutor referred to the lack of contradicting evidence only in passing, and any reference to defendants failure to testify was only by implication. The court instructed the jury not to consider counsels statements as evidence and that it was to draw no adverse inferences from defendants decision not to testify. Even if the statements violated Griffin, we are convinced beyond a reasonable doubt defendant would not have obtained a more favorable result had the prosecutor not made the statements in question.

DISPOSITION

The judgment is affirmed.

SIMS , Acting P. J.

We concur:

RAYE , J.

MORRISON , J.

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^[1]The court ordered defendants sentence to run concurrently to a recently imposed five-year federal term.

^[2]In a Multidisciplinary Interview Center interview, N.B. related defendant digitally penetrated her underneath her clothes while filming her with the other hand.

^[3]Vivian had allowed Vader to photograph her in various states of undress and to once videotape them during sex. Revealing photos of Vivian were found in Vaders private room and in defendants house. Defendant also had a videotape in his possession labeled, The Best of Vivian.