P. v. Lee
Filed 3/2/12
P. v. Lee CA4/3
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE
PEOPLE,
Plaintiff and Respondent,
v.
JUDSON
GILLARD LEE,
Defendant and Appellant.
G044235
(Super. Ct. No. 09HF0320)
O P I N I O N
Appeal from a judgment of the Superior Court of
County, Patrick Donahue, Judge. Affirmed as modified.
Harry Zimmerman, under appointment by the
Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney
General, Garrett Beaumont and Sharon L. Rhodes, Deputy Attorneys General, for
Plaintiff and Respondent.
Judson
Gillard Lee appeals from a judgment after a jury convicted him of two counts of
committing a lewd and lascivious act upon a child under 14 years of age. Lee argues the following: (1) the trial court erroneously excluded
evidence of the victim’s prior inconsistent statement; (2) insufficient
evidence supports one of his convictions for committing a lewd and lascivious
act upon a child under 14 years of age; (3) this court should review the
victim’s school records to determine whether they contain any evidence that
would impeach the victim’s credibility; (4) the court erroneously imposed
overbroad probation conditions; and (5) the court erroneously ordered the
payment of the court security fee and court facilities assessment as probation
conditions. Lee’s fourth claim has some
merit but otherwise his contentions are unpersuasive. We affirm the judgment as modified.
FACTS
T.M. was born in July 1994. On July 4, 2007, 12-year-old T.M. and her
parents met Lee at an Independence Day block party; they were neighbors. T.M.’s parents befriended Lee, and T.M.
befriended Lee’s son, N.L. T.M. soon
began seeing Lee daily, oftentimes in his garage. T.M. talked to Lee about her problems and
school, and Lee told T.M. she was pretty.
T.M. believed Lee cared about her and considered him to be a
friend. Soon, T.M. developed a “crush”
on Lee and their conversations became intimate.
Before Christmas 2007, Lee picked up N.L.,
T.M., and T.M.’s friends at the Spectrum Center and drove them home. When they got home, Lee hugged T.M. and
kissed her on the lips in a passionate manner.
T.M. later told her friends she liked Lee.
T.M. continued to spend time with Lee at his
house. They would discuss her sex life,
how T.M. felt about Lee, and their relationship.
On one occasion in his garage, Lee told T.M.
it would not be illegal “if [she] fingered [her]self because he [was not]
touching [her][.]” She did not
masturbate in front of Lee. On another
occasion in the garage, Lee asked T.M. to suck his penis and told her it would
not be illegal because she was touching him, and he was not touching her. She did not perform oral sex on Lee. Lee often told T.M. that he wished she were
18 years old because they could have sex.
During this time period, Lee sent T.M. a text asking her to send him a
photograph of her breasts. She did not
send Lee a photograph of her breasts.
One time, when T.M. asked Lee for a cigarette, Lee told her to show him
her “tits” if she wanted a cigarette.
Lee offered alcohol to T.M. and her friends. Another time, Lee showed T.M. and her friends
a pornographic website.
Lee met Felicia Garrabrant at a Christmas
party at T.M.’s house in December 2007.
Garrabrant had known T.M.’s father for 35 years and had known T.M. since
she was born. Lee and Garrabrant began
dating and she moved into his house some time later. T.M. saw Lee less often and grew to resent
Garrabrant. Lee told T.M. that he really
did not like Garrabrant but he dated her because she cleaned his house. Lee told T.M. that she was prettier than
Garrabrant.
On March 17, 2008, T.M. went to Lee’s house
to get lemons. T.M. walked inside the
house, and Lee came downstairs; he had been at the bar. In the entryway, Lee pushed T.M. against the
wall and began kissing her neck and then her lips. Lee led T.M. upstairs to his bedroom, and
they laid down on his bed. Lee asked
T.M. to take off her shirt so he could see her breasts, but she did not. He touched her breasts over her shirt. Lee asked T.M. to take off her pants so he
could “eat [her] out.” T.M. heard
Garrabrant come home, and when she entered the bedroom, T.M. left. Later, T.M. asked Lee if he remembered what
had happened because he appeared to be drunk.
Lee replied, “If I wasn’t drunk, it wouldn’t have been right.”
Sometime later, T.M. and her friend were at
Lee’s house drinking alcohol. T.M.’s
friend and Lee’s son, N.L. were in the living room, while T.M. was in the
garage. Lee came home from T.M.’s house,
saw T.M. was intoxicated, and tried to take her home. T.M. said she would go home if Lee kissed
her. Lee kissed her on the lips two or
three times and then took her home.
After Garrabrant spoke to T.M’s parents about
her concerns and T.M.’s father witnessed Lee lying on top of T.M. and her
friend during a vacation, a social worker interviewed T.M. at school in
September 2008. T.M. denied her neighbor
ever kissed her on the lips or touched her genitals. T.M. did not reveal her neighbor’s identity
and was not truthful because she liked Lee and did not want him to get in
trouble.
In February 2009, a social worker from the
Child Abuse Services Team, Ann Rasmussen, interviewed T.M. The interview was videotaped. During the interview with Rasmussen, T.M.’s
version of the events that transpired between her and Lee were nearly identical
to what is detailed above. We will not
repeat them again. T.M. did add though
that she flirted with Lee all the time but he “could turn it off and on”
depending on whether they were alone.
T.M. could not explain her attraction to Lee. She explained, “I don’t know why at all
[be]cause he’s not even cute or anything and he’s like nothing he doesn’t even
have like money, he lives with his mom you know.” T.M. stated she was 13 years old when Lee
kissed her and “everything stopped” in June.
About two weeks later, Orange County
Sheriff’s Investigator Sandra Longnecker asked T.M.’s mother to make a
recorded, covert telephone call to Lee.
During the telephone call, Longnecker prompted T.M.’s mother to ask
certain questions and advised her how to respond. Lee initially denied he kissed T.M. When T.M.’s mother told Lee she knew about
his text message asking T.M. to send him a picture of her breasts, Lee said it
“was just to get her off [his] back.”
Lee said he never wanted to nor did he ever do anything with T.M, but
“[T.M.] just never stopped . . . she just kept you know pushing and pushing . .
. .” Lee admitted he kissed T.M. one
time while they were on his bed but he was intoxicated and T.M. was tormenting
him. He claimed it was not “a make out
kiss or anything like that it was just basically you know there here’s a kiss a
peck you know.” Lee admitted he and a
friend told T.M. they would give her a cigarette if she showed them her
breasts. When T.M.’s mother asked Lee
whether he asked T.M. to touch herself, Lee replied, “[I]t’s like you know you
wanna [sic] do something fine go
ahead and do it’s like it was basically you know call her on it . . . .”
An information charged Lee with three counts
of committing a lewd act upon a child under 14 (Pen. Code, § 288, subd. (a))
(count 1-The Spectrum Incident; count 2-The Lemon Incident; and count 3-The
Garage Incident).
At trial, the prosecutor offered T.M.’s
testimony. In addition to her testimony
concerning the incidents we provide above, T.M. testified regarding a text Lee
sent to her concerning a photograph of her breasts. T.M. stated she was home one evening with her
friends when Lee sent her a text asking her to send him a photograph of her
breasts. T.M. stated she never offered
to send and never sent Lee any photographs of herself. On cross-examination, T.M. denied she offered
to send Lee a photograph of her breasts or sending such a photograph. The
following colloquy then occurred:
“[Defense counsel]: And you said that . . . Lee initiated ‘send
me a picture of your boobs’
“[T.M.]:
Yes.
“[Defense counsel]: Well, wasn’t it you who kept asking him,
‘hey, you want a picture of my breasts,’ or ‘do you want a picture of my
breasts’
“[T.M.]:
No.
“[Defense counsel]: He said, ‘Go ahead and send it’
“[T.M.]:
No.
“[Defense counsel]: And you didn’t tell that to any of your
friends either
“[T.M.]:
No.
“[Defense counsel]: You didn’t have that conversation with [your
friend L.H.][]
“[T.M.]:
No.
“[Defense counsel]: -- About sending pictures of your boobs to .
. . Lee
“[T.M.]:
No.
“[Defense counsel]: Okay.
Because you wouldn’t do that
“[T.M.]:
That is why I didn’t.
“[Defense counsel]: You said, ‘That is why you didn’t’
“[T.M.]:
Yeah.
“[Defense counsel]: What do you mean by that
“[T.M.]:
I never sent a picture of my boobs.
“[Defense counsel]: Because you wouldn’t do something like that
“[Prosecutor]: Objection, calls for speculation,
relevance.
“[Trial] court: Overruled.
“[Defense counsel]: You can answer.
“[T.M.]:
No.
“[Defense counsel]: No, you wouldn’t do something like that
“[T.M.]:
No.”
The prosecutor also offered T.M.’s friends’
testimony. All four of T.M.’s friends
had on some occasion accompanied T.M. to Lee’s house, and T.M. had at some
point told all of them how she felt about Lee. All testified the relationship between Lee and
T.M. was inappropriate because their relationship was flirtatious. One of T.M.’s friends testified T.M. told her
about the incident where Lee and T.M. were on a bed together. The same friend also stated T.M. sent Lee
texts of a sexual nature. Another friend
testified she saw Lee kiss T.M. on the lips.
That friend stated T.M. send Lee a text asking him the size of his
penis.
After the prosecutor rested, the trial court
dismissed count 1 on Lee’s motion. Defense
counsel then informed the trial court that one of his witnesses,
Lee’s ex-girlfriend,
Rosemarie Taylor, would testify T.M. told her that T.M. sent a photograph of
her breasts to high school boys, they showed the photograph to others, and T.M.
was embarrassed. Counsel explained he
had previously discussed the issue with the prosecutor, and “[the prosecutor]
talked to [him] about it and said that was potentially rape shield.” Counsel previously told the prosecutor, “[He]
could see his point, and so [he] told [the prosecutor] [he] would caution the
witness not to get into that.” Counsel
stated he wanted to elicit Taylor’s testimony on the point as a prior
inconsistent statement to impeach T.M.
The prosecutor replied defense counsel did not comply with the rape
shield law (Evid. Code, § 782), the evidence was irrelevant because what
T.M. may do with classmates is different than what she would do with Lee, and
the prejudicial effect of the evidence outweighed any probative value. The trial court agreed, explaining the
evidence had “marginal relevance[]” because “what she does with kids her own
age is completely different.” The court
concluded any probative value of the evidence was outweighed by its prejudicial
effect.
Lee offered Garrabrant’s testimony. Garrabrant testified she had known T.M. since
she was born, as she was a close friend of T.M.’s father, and she and T.M. were
very close. Garrabrant explained their
relationship changed for the worse after she and Lee started dating. She stated T.M. ridiculed her physical
features and commented on how Lee’s ex-girlfriends were so pretty. With regard to the incident that occurred on
St. Patrick’s Day 2008, Garrabrant stated that when she saw T.M., “[T.M.] had a
smirk on her face, kind of like, . . . the cat ate the canary.” Garrabrant never saw Lee act or say anything
inappropriate around T.M.
Lee offered the testimony of a longtime
friend, Jeffrey Robinson. Robinson
testified he has two teenage daughters and would trust Lee with them without
reservation.
N.L. testified on behalf of his father. As to the night T.M. was intoxicated at his
house, N.L. explained T.M. and her friend took alcohol from the liquor
cabinet. N.L. said T.M. was intoxicated
and said, “She wanted to fuck [his] dad.”
N.L. stated he called his father and when he came home from T.M.’s
house, they were in the garage when T.M. tried to take off Lee’s belt; Lee
resisted. N.L. said his father called
Rosemarie Taylor, who was at T.M.’s house, to come help him with T.M. N.L. went inside the house to help T.M.’s
friend while Lee was alone with T.M. in the garage waiting for Taylor. N.L. never saw his father do anything
inappropriate with T.M.
Finally, Lee offered Taylor’s testimony. Taylor testified that when she went to Lee’s
house, T.M. was intoxicated and kept saying she wanted her first sexual
experience with Lee. Taylor stated she
saw T.M. try to take off Lee’s belt.
After both parties had rested, the trial
court stated there was a prior sidebar discussion where defense counsel stated
he could produce a witness who would testify he/she saw texts T.M. sent to her
friends that showed T.M.’s breasts. The
trial court repeated, “[T.M.’s] behavior with her own friends her own age
really was not relevant and was more prejudicial than probative . . . .” Defense counsel argued the evidence was a
prior inconsistent statement. The court
opined the evidence was “tangential to the facts of . . . Lee’s case, and that
it was more prejudicial than probative.”
The jury convicted Lee of counts 2 and
3. The trial court sentenced Lee to five
years formal probation and 270 days in jail.
DISCUSSION
erroneously excluded evidence T.M. sent photographs of her breasts to her
classmates because it was a relevant and not unduly prejudicial prior
inconsistent statement, and the court’s exclusion of the evidence violated his
federal constitutional rights. The
Attorney General responds: (1) Lee did
not comply with the procedural requirements of Evidence Code section 782 for
admission of a victim’s prior sexual conduct; (2) the evidence had little if
any probative value and it was unduly prejudicial; and (3) Lee forfeited his
federal constitutional contentions because he did not object on those grounds,
and in any event, those claims are meritless.
Lee responds he was not required to comply with Evidence Code section
782 because “the evidence of whether [T.M.] texted pictures of her breasts
previously went strictly to her credibility and was not sexual conduct under
Evidence Code section 782.” We address
all their contentions below.
1447 (Tidwell), and
328 (Franklin), Lee claims Evidence
Code section 782 was not applicable because “there was no contention that
[T.M.’s] breast picture texting was sexual conduct or an indication of a
willingness to engage in sexual conduct, but rather went to her false
statements.” We disagree.
“Evidence of the sexual conduct of a
complaining witness is admissible in a prosecution for a sex-related offense
only under very strict conditions. A
defendant may not introduce evidence of specific instances of the complaining
witness’s sexual conduct, for example, in order to prove consent by the
complaining witness. (Evid. Code, §
1103, subd. (c)(1).) Such evidence may
be admissible, though, when offered to attack the credibility of the
complaining witness and when presented in accordance with the following
procedures under [Evidence Code] section 782:
(1) the defendant submits a written motion ‘stating that the defense has
an offer of proof of the relevancy of evidence of the sexual conduct of the
complaining witness proposed to be presented and its relevancy in attacking the
credibility of the complaining witness’ [citation]; (2) the motion is
accompanied by an affidavit, filed under seal, that contains the offer of proof
[citation]; (3) ‘[i]f the court finds that the offer of proof is sufficient, the
court shall order a hearing out of the presence of the jury, if any, and at the
hearing allow the questioning of the complaining witness regarding the offer of
proof made by the defendant’ [citation]; and (4) if the court, following the
hearing, finds that the evidence is relevant under Evidence Code section 780
and is not inadmissible under [Evidence Code] section 352, then it may make an
order stating what evidence may be introduced by the defendant and the nature
of the questions to be permitted. [Citation.]” (People
v. Fontana (2010) 49 Cal.4th 351, 362 (Fontana).)
term is used in [Evidence Code] sections 782 and 1103, encompasses any behavior
that reflects the actor’s or speaker’s willingness to engage in sexual activity. The term should not be narrowly
construed.” (Franklin, supra,
25 Cal.App.4th at p. 334,
fn. omitted.)
Cognizant of the fact the term “sexual
conduct” is to be broadly construed, we conclude the act of T.M. photographing
her breasts and sending the photographs to her classmates was clearly sexual
conduct. Commonly accepted standards of
decency expect women to cover their genitalia and breasts in public. When a young woman photographs her breasts
and sends that photograph to her male classmates, it is certainly reasonable to
conclude she sent the photograph with the intent to arouse. Although we do not go so far as to say such
an act expresses a willingness to engage in sexual activity, it certainly is
sexual in nature and qualifies as “sexual conduct” as broadly defined. (We will subsequently refer to this evidence
as “the sexual conduct evidence”.) We
turn now to Lee’s attempt to analogize this case to Franklin and Tidwell.
introduce the victim’s false statement to her brothers that her mother
committed sexual misconduct against her.
The Court of Appeal concluded the trial court erroneously excluded the
evidence, even though defendant had not complied with Evidence Code section 782. The court explained: “Even though the content of the statement has
to do with sexual conduct, the sexual conduct is not the fact from which the
jury is asked to draw an inference about the witness’s credibility. The jury is asked to draw an inference about
the witness’s credibility from the fact that she stated as true something that
was false. The fact that a witness
stated something that is not true as true is relevant on the witness’s
credibility whether she fabricated the incident or fantasized it.” (Ibid.)
In Tidwell,
supra, 163 Cal.App.4th at page 1452, defendant sought to introduce victim’s
allegedly false complaints she had been raped pursuant to Evidence Code section
782. The Court of Appeal, after citing
the above language from Franklin,
held, “[Evidence Code] [s]ection 782 was inapplicable because it was [the
victim’s] allegedly false complaints that the defense sought to use as
impeachment evidence, not her prior sexual conduct or willingness to engage in
sexual activity.” (Tidwell, supra, 163 Cal.App.4th at p. 1456.)
Lee seems to confuse the evidence sought to
be admitted for impeachment purposes, i.e, the sexual conduct evidence, with
the evidence that was previously admitted, i.e., T.M.’s testimony on
cross-examination she would not send such a photograph to Lee. In Franklin
and Tidwell, defendants sought to
admit victims’s statements to impeach
her credibility. Here, it is not
entirely clear what evidence Lee sought to admit to demonstrate T.M. sent her
classmates photographs of her breasts.
Lee’s first offer of proof was his ex-girlfriend, Taylor, would testify
T.M. told Taylor that she sent text message photographs of her breasts to
classmates. Lee’s second offer of proof
was he wanted to call a witness who would testify he/she saw the text message
photographs. Both the prosecutor and
defense counsel expressed concerns to the trial court that this evidence
implicated Evidence Code section 782. In
fact, defense counsel informed the trial court he had previously discussed this
evidence with the prosecutor and they discussed the issue of the applicability
of that section. All this confusion
could have been easily remedied by a written motion and sealed affidavit with
an offer of proof detailing the nature of the evidence sought to be admitted
and the basis for its admission.
Lee sought to admit a specific act of T.M.’s
sexual conduct (T.M. took a photograph of her breasts and sent the photograph
via text to male classmates) to attack her credibility. Lee did not file a written motion or a sealed
affidavit with an offer of proof as required by Evidence Code section 782. Consequently, he may not now complain of
error.
v. Sims (1976) 64 Cal.App.3d 544, 554.)
Nevertheless, we will address his other contentions.
section 352
erroneously excluded the sexual conduct evidence because it was a prior
inconsistent statement relevant to T.M.’s credibility and the prior sexual
conduct evidence was not unduly prejudicial.
We disagree.
admissible at trial. (Evid. Code,
§ 350.) Relevant evidence is
“evidence . . . having any tendency in reason to prove or disprove any disputed
fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Although “‘there is no universal test of
relevancy, the general rule in criminal cases [is] whether or not the evidence
tends logically, naturally, and by reasonable inference to establish any fact
material for the prosecution[.]’” (
491.) “‘As with all relevant evidence,
however, the trial court retains discretion to admit or exclude evidence
offered for impeachment. [Citations.] A trial court’s exercise of discretion in
admitting or excluding evidence is reviewable for abuse [citation] and 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.’ [Citation.]” (People
v. Brown (2003) 31 Cal.4th 518, 534.)
Evidence
Code section 352, however, authorizes a trial court to exclude relevant
evidence. “The court in its discretion
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.” (Evid. Code,
§ 352.) For purposes of Evidence
Code section 352, prejudice means “‘evidence that uniquely tends to evoke an
emotional bias against a party as an individual, while having only slight
probative value with regard to the issues.
[Citation.]’” (
976.)
With respect to the relevance issue, Lee now
seems to argue that because T.M. had not been permanently excused as a witness,
defense counsel intended to recall her to the stand to question her on this
point. This is inconsistent with the two
offers of proof detailed above. In any
event, the sexual misconduct evidence had little if any probative value. As relevant to this issue, all defense
counsel’s questions concerned who initiated the idea of T.M. sending text
messages of photographs of her breasts to Lee.
Counsel asked T.M. whether she told L.H. about sending photographs of
her breasts to Lee. Although not the model of clarity, defense
counsel asked, “Because you wouldn’t do that” presumably meaning she would not
text a photograph of her breasts to Lee.
T.M. eventually replied, “I never sent a picture of my boobs.” T.M. presumably meant she never sent Lee a
photograph of her breasts in a text message.
After the trial court overruled the prosecutor’s relevancy objection,
defense counsel stated, “[Y]ou wouldn’t do something like that” Based on the context of the entire
discussion, we interpret T.M.’s negative response to mean she would never text
a photograph of her breasts to Lee.
The sexual conduct evidence Lee sought to
admit was of little relevance to the issues before the jury. Whether T.M. would send a photograph of her
breasts to male classmates is of little relevance to whether she would send
such a photograph to Lee. Additionally,
the sexual conduct evidence had little if any relevance on her
credibility. As we explain above, we
interpret T.M.’s responses to mean she never texted a photograph of her breasts
to Lee and she would not text such a photograph to Lee. Contrary to Lee’s assertion otherwise,
evidence T.M. texted a photograph of her breasts to her male classmates did not
“directly contradict[]” T.M.’s prior testimony.
Thus, the sexual conduct evidence was of little, if any, relevance.
We recognize defense counsel’s questions and
T.M’s responses could be interpreted more broadly to mean T.M. would never text
a photograph of her breasts to anyone. After T.M. responded she never sent a picture
of her breasts to Lee, defense counsel inquired, “Because you wouldn’t do
questions and T.M.’s answers more broadly to mean that she would never text a
photograph of her breasts to Lee or “do something
like that,” text a photograph to anyone, including her classmates. (Italics added.) But defense counsel did not follow up with
additional questions to clarify that was the point he was trying to
establish. Based on the ambiguous nature
of defense counsel’s questions and T.M.’s responses, the trial court did not
abuse its discretion in concluding the evidence was of little probative
value.
As to Evidence Code section 352, we conclude
admission of the sexual misconduct evidence would have been unduly prejudicial
to the prosecution compared to its very minimal relevance. Evidence T.M texted a photograph to her male
classmates would only serve to embarrass T.M. and could cause the jury to
consider her a person of low moral character.
(Fontana, supra, 49 Cal.4th at
p. 370 [Legislature determined sexual assault victims require greater
protections than other witnesses against surprise, harassment, and unnecessary
invasion of privacy].) Additionally, the
jury could rely on the sexual conduct evidence to impermissibly infer that T.M.
willingly engaged in sexual conduct with Lee.
T.M.’s willingness to engage in such conduct is not a defense to the
charged offenses. (People v. Soto (2011) 51 Cal.4th 229, 238.) Moreover, the sexual conduct evidence was cumulative
as T.M.’s friends testified T.M. sent Lee text messages of a sexual
nature. Thus, there was evidence from
which the jury could reasonably conclude T.M. had asked Lee how big his penis
was or offered to send him a photograph of her breasts, or both. Therefore, the trial court properly concluded
the undue prejudice of the evidence outweighed its minimal probative
value. (People v. Prince (2007)
40 Cal.4th 1179, 1237
[court’s weighing of prejudice against probative value inferred from record
despite absence of express statements by trial court].)
the sexual conduct evidence violated his federal constitutional rights. The Attorney General responds Lee forfeited
appellate review of these issues because he did not object on these grounds,
and alternatively, his claims are meritless.
We will address the merits of his claims. (People
v. Partida (2005) 37 Cal.4th 428, 435 [defendant may make narrow due
process argument based on his Evid. Code,
§ 352 argument];
131, fn. 11 [in the interests of justice and to avoid a later claim of
ineffective assistance of counsel we will address the merits of his
claim].)
“‘Whether
rooted directly in the Due Process Clause of the
Fourteenth Amendment or in the Compulsory Process or
Confrontation Clauses of the
Sixth Amendment, the Constitution guarantees criminal
defendants “a meaningful opportunity to present a complete defense.”’ [Citation.]
This right is abridged by evidence rules that ‘infring[e] upon a weighty
interest of the accused’ and are ‘“arbitrary” or “disproportionate to the
purposes they are designed to serve.”’
[Citation.]” (
319, 324.)
“As
a general matter, the ‘[a]pplication of the ordinary rules of evidence . . .
does not impermissibly infringe on a defendant’s right to present a
defense.’ [Citations.] Although completely excluding evidence of an
accused’s defense theoretically could rise to this level, excluding defense
evidence on a minor or subsidiary point does not impair an accused’s due
process right to present a defense.
[Citation.] If the trial court
misstepped, ‘[t]he trial court’s ruling was an error of law merely; there was
no refusal to allow [defendant] to present a defense, but only a rejection of
some evidence concerning the defense.’
[Citation.] Accordingly, the
proper standard of review is that announced in People v. Watson (1956) 46 Cal.2d 818, 836 . . . [(
beyond-a-reasonable-doubt
standard reserved for errors of constitutional dimension (Chapman v. California (1967) 386 U.S. 18, 24 . . . .” (
7 Cal.4th 1075, 1102-1103.)
Here, the trial court’s exclusion of the
sexual conduct evidence did not impair Lee’s right to confront the witnesses
against him or deny him his right to present a defense. As we explain above, the trial court
exercised its discretion and properly ruled the sexual conduct evidence
inadmissible after concluding the evidence’s prejudicial effect outweighed its
marginal probative value. The sexual
conduct was on a minor point. The sexual
conduct evidence did not directly contradict T.M.’s testimony, and her conduct
with male classmates is of little if any relevance to her conduct with Lee.
Finally, it is not reasonably probable the
result of the proceeding would have been different had the trial court admitted
the sexual conduct evidence. Lee
admitted he kissed T.M. on his bed in a recorded telephone call with T.M.’s mother. This admission buttressed T.M.’s detailed
testimony about the two incidents.
Whether T.M. texted her male classmates a photograph of her breasts was
largely irrelevant. Lee’s admission
bolstered T.M.’s credibility.
3
Lee contends insufficient evidence supports
his conviction for count 3 because there was no substantial evidence the
offense occurred before T.M. turned
14 years of age.
“‘“In
reviewing the sufficiency of evidence under the due process clause of the
Fourteenth Amendment to the United States Constitution, the question we ask is
‘whether, after viewing the evidence in the light most favorable to the
prosecution,
of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” [Citation.] We apply an identical standard under the
California Constitution. [Citation.] “In determining whether a reasonable trier of
fact could have found defendant guilty beyond a reasonable doubt, the appellate
court ‘must view the evidence in a light most favorable to respondent and
presume in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.’”
[Citation.] The same standard
also applies in cases in which the prosecution relies primarily on
circumstantial evidence. [Citation.]’
[Citation.] [¶] We therefore review the record in the light
most favorable to the prosecution to determine whether the challenged convictions
are supported by substantial evidence, meaning ‘evidence which is reasonable,
credible, and of solid value.’
[Citation.] In contrast, ‘mere
speculation cannot support a conviction.
[Citations.]’ [Citation.] ‘In deciding the sufficiency of the evidence,
a reviewing court resolves neither credibility issues nor
Resolution of conflicts and inconsistencies in the testimony is the
exclusive province of the trier of fact.
[Citation.]’” (
86, 93.)
Section
288, subdivision (a), prohibits any person from “willfully and lewdly
commit[ting] any lewd or lascivious act . . . upon or with the body, or any
part or member thereof, of a child who is
under the age of 14 years, with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of that person or the
child . . . .”
(Italics added.)
Here,
the information
alleged Lee committed count 2, the Lemon Incident, sometime between March 1,
2008, and March 31, 2008. The
information alleged Lee committed count 3, the Garage Incident, sometime
between April 1, 2008, and June 30, 2008.
T.M. turned 14 years old in July 2008.
The
evidence concerning when count 3 occurred came from Taylor, N.L., and T.M.’s
CAST interview with Rasmussen. Taylor
answered in the affirmative when defense counsel asked her whether she recalled
an incident in Lee’s garage in 2008.
N.L. answered in the affirmative when defense counsel asked him whether
he remembered an incident in Lee’s garage in the summer of 2008. Although during her CAST interview T.M.
initially did not remember whether the Garage Incident occurred before or after
the Lemon Incident, T.M. stated the Garage Incident occurred when she was 13
years old. T.M. responded in the
negative when Rasmussen asked her whether she had turned
14 years old yet.
Additionally, T.M. stated “everything stopped[]” the end of her eighth
grade school year, which from the evidence presented at trial would have been
June 2008. T.M. turned 14 the following
month. This was sufficient evidence for
the jury to conclude T.M. was under 14 years of age at the time of the Garage
Incident.
abused its discretion when it did not review in camera T.M.’s school
records. He adds that even if the court
did conduct such a hearing, this court should review the records to determine
whether T.M.’s school records include any evidence affecting her credibility. As we explain below, the trial court properly
concluded the subpoenaed records do not contain any material information that
would have impeached T.M.’s credibility.
“A ruling on a motion to compel
discovery—like that here—is subject to review for abuse of discretion. [Citations.]”
(People v. Ashmus (1991) 54
Cal.3d 932, 979, overruled on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117.) In order to determine whether the trial court
has abused its discretion, the appellate court must independently review the
records in question. (See
38 Cal.4th 491, 606–607.)
duces tecum on T.M.’s school district and high school. Judge Gregory Jones reviewed the records in
camera. Judge Jones stated, “I’m going
to go through them here.” With regard to
one packet of records from the high school, Judge Jones explained, “My review
of these records indicates that the only documents in this packet are documents
relating exclusively to academic issues:
grades, cumulative attendance records, test scores. There are no records at all relating to
disciplinary issues. No records at all
indicating that there were ever any problems with discipline or behavior. There were a number of [school] type
records. But nothing that would relate
to credibility, honesty, or veracity, or the particular facts of this
case.” With regard to the second packet
of records from [the] high school, Judge Jones said, “And the comments that I
made in regards to the previous packet apply equally to this packet. The records in this packet are almost
exclusively academic. By that I mean
grade-related, attendance-related, [and] test score-related. . . . But no
records whatsoever dealing with discipline, behavior, or records that would in
any way be relevant to the facts of this case.”
As to the school district records, Judge Jones stated, “And again . . .
without repeating myself for the third time, these records fall into exactly
the same category as the previous two packets of documents. [¶] In
summary, I do not find that there are any documents here that are relevant to
this case at all for purposes of appellate review.”
Although Judge Jones indicated the school
records should be sealed and kept in the court file, Judge Patrick Donahue
ordered the record returned at the end of trial. Pursuant to an order of this court, the
school district and the high school submitted T.M’s school records to this
court for our review.
otherwise, it is clear Judge Jones reviewed T.M.’s school records in camera and
determined the records concerned T.M.’s academic record and not any discipline
issues. Thus, Lee’s claim the trial
court did not review the school records in camera and his claim his
confrontation rights were violated is meritless.
We have reviewed the records Lee
subpoenaed. We agree with the trial
court, and we conclude these school records do not contain any material
information that would have assisted Lee in this case or would have had any
effect on the outcome of this case.
There is nothing in the school records that would have impeached T.M.’s
credibility.
IV. Probation Conditions
erroneously imposed three probation conditions because they are unreasonable
and unconstitutionally vague.
name="_ftnref5" title="">[5] We agree one probation condition is overbroad
and must be stricken.
Over defense counsel’s objection, the trial
court imposed the following probation conditions:
“33.
Do not own, use or possess any types of equipment designed for the
taking or viewing of photographs, whether in still, digital or video form,
without written permission of the [p]robation [o]fficer.”
“39.
Do not own, use, or possess any type of toys, video games, or similar
items designed for the entertainment of children, without written permission of
the probation officer.”
“41.
Submit to continuous electronic monitoring, Global Positioning System
(GPS) monitoring, or other device as directed by your probation officer.”
probation conditions are unreasonable.
Not so.
Trial courts have broad discretion in
determining appropriate probation conditions.
(Lent, supra, 15 Cal.3d at p.
486.) A condition of probation is
invalid as unreasonable if it: (1) has
no relationship to the crime of which the defendant was convicted; (2) relates
to conduct itself not criminal; and (3) requires or forbids conduct not
reasonably related to future criminality.
(Ibid.)
1. Probation Conditions 33 & 39-Photography
Equipment, Toys, and Video Games
Although Lee was not charged with or
convicted of child pornography, the jury did convict him of two counts of
committing a lewd and lascivious act upon a child under 14 years of age. It is certainly reasonable to conclude that
committing a lewd act on a minor bears a strong connection to
T.M. to text him a photograph of her breasts.
Additionally, there was testimony Lee showed T.M. and a friend a
pornographic website. Thus, the
probation conditions prohibiting Lee from owning, using, or possessing
photographic equipment, toys, video games, or other similar items designed for
the entertainment of children is reasonably related to the prevention of future
pornographic criminality and unlawful sexual activity with a minor.
Positioning System Tracking
Section 1210.7, subdivision (a), authorizes a
county probation department to “utilize continuous electronic monitoring to
electronically monitor the whereabouts of persons on probation . . . .” Additionally, the Legislature has authorized
electronic monitoring for high-risk sex offenders. (§§ 1202.8, 1203f.)
In re
R.V. (2009) 171 Cal.App.4th 239, 247 (R.V.),
upheld the use of a GPS tracking device as a juvenile probation condition. The court explained that given minor’s
criminal history and violation of probation conditions, the GPS monitoring was
reasonably related to his past behavior and likely to deter future
criminality. The court reasoned GPS
monitoring would have allowed the probation department to determine whether
minor was complying with the other probation conditions. (Ibid.)
Here, the GPS monitoring system permits the
probation department to determine whether Lee is complying with his probation
conditions. Probation condition 34
prohibits Lee from going near T.M.’s home, school, or place of employment. Other probation conditions forbid Lee from
frequenting businesses or conventions where sexually oriented materials are
sold or viewed, gentlemen’s clubs or massage parlors, bars or liquor stores, or
places where minors congregate. Thus,
the probation condition requiring Lee to be electronically monitored is
reasonably related to the prevention of future pornographic criminality and
unlawful sexual activity with a minor.
Relying on R.V., supra, 171 Cal.App.4th 239, Lee complains that because the
psychologist who assessed him concluded he is not “a risk of harm to the victim
. . . or other minor females in the community[,]” electronic monitoring is
unreasonable. There is no requirement an
adult probationer be considered a high risk to warrant electronic monitoring. As we explain above, the Legislature authorized
electronic monitoring for all adult probationers. (§ 1210.7, subd. (a).) Thus, the probation condition requiring Lee
to be electronically monitored is reasonably related to compliance with his
other probation conditions and the prevention of unlawful sexual activity with
a minor.
The underpinning of a vagueness challenge is
the due process concept of “fair warning.”
(People v. Castenada (2000) 23
Cal.4th 743, 751.) The rule of fair
warning consists of “the due process concepts of preventing arbitrary law
enforcement and providing adequate notice to potential offenders.” (Ibid.) The vagueness doctrine bars enforcement of
“‘a statute which either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at its meaning and
differ as to its application.’” (
Cal.4th 1090, 1115.) “[A]bstract legal
commands must be applied in a specific context,”
and, although not admitting of “‘mathematical certainty,’” the language used
must have “‘reasonable specificity.’” (Id.
at pp. 1116–1117.)
We may uphold those conditions, even though
they restrict a defendant’s exercise of constitutional rights, if they are
carefully tailored and reasonably related to the compelling public interests of
rehabilitation and protection of the public.
(People v. Jungers (2005) 127
Cal.App.4th 698, 704.) We review facial
challenges to probation conditions de novo.
(In re Sheena K. (2007) 40
Cal.4th 875, 885-888.)
1. Probation Condition 33-Photography Equipment
condition 39 is overbroad because it is not narrowly drawn to prohibit
possession of the types of items that were unacceptable and the trial court did
not articulate a compelling state interest justifying the prohibition. We conclude probation condition 33 specifies
what Lee is prohibited from possessing, photographic equipment, and there is a
compelling state interest in prohibiting him from possessing those items. The probation condition prohibits Lee from
using, owning, or possessing “any types of equipment designed for the taking or
viewing of photographs, whether in still, digital or video form, without
written permission of the probation officer.”
This condition clearly delineates what Lee may and may not
possess—equipment designed
to take still photographs or videos. The
compelling state interest is to prevent Lee from photographing or making videos
of female minors. Needless to say, the
state has a compelling interest in protecting minors. (People
v. Hsu (2000) 82 Cal.App.4th 976, 984 [state’s compelling interest
protecting minors from being seduced to engage in sexual activity].)
and Video Games
condition 39 is overbroad because it is not narrowly drawn to prohibit
possession of the types of items that were unacceptable. The Attorney General replies it is not
overbroad because it is limited to those items designed for the entertainment
of children. We agree with Lee.
We conclude the probation condition
prohibiting Lee from possessing “any type of toys, video games, or similar
items designed for the entertainment of children” is unconstitutionally
vague. The probation condition does not
specify the items within the possession prohibition. A certain item may be an indication of Lee’s
intent to lure minors to his residence in one context but not in another. The probation condition does not specify the
items within the possession prohibition.
To provide fair warning to Lee of the items he may not possess and to
prevent arbitrary enforcement, we determine probation condition 39 is
unconstitutionally vague and thus invalid.
Positioning System Tracking
Lee complains the trial court did not
articulate a compelling state interest in requiring him to be subject to
electronic monitoring. We conclude there
is a compelling state interest.
In R.V.,
supra, 171 Cal.App.4th at page 248, the court ordered
GPS monitoring for a minor
was not “‘arbitrary, capricious, or harassing[]’” because the GPS requirement
enabled the probation department to ensure minor complied with other probation
conditions and would do no more than indicate his location at any particular
time. Similarly, here, the GPS
requirement was reasonably designed to monitor Lee’s whereabouts to ensure he
stayed away from T.M., any adult shops, conventions, or clubs, bars and liquor
stores, and any place frequented by children.
As we explain above, the state has a compelling interest in protecting
children.
In sum, probation conditions 33 and 41 were
reasonable and constitutionally valid.
Although probation condition 39 was reasonable, it was overbroad and
invalid. We strike probation condition
39. As the trial court has continuing
jurisdiction of Lee during probation, the court may choose to narrowly tailor
the probation condition to serve a compelling state interest.
Relying on People v. Kim (2011) 193 Cal.App.4th 836, 842, Lee argues the trial
court erred in imposing the section 1465.8, subdivision (a)(1), security fee
and Government Code section 70373, subdivision (a)(1), assessment as conditions
of probation. The Attorney General
concedes the error. We conclude there
was an error but not the error the parties complain about.
“Where
there is a discrepancy between the oral pronouncement of judgment and the
minute order or the abstract of judgment, the oral pronouncement
controls.” (People v. Zackery (2007) 147 Cal.App.4th 380, 385 (
recitation of all the fees, fines and penalties on the record may be tedious,
California law does not authorize shortcuts.”
(People v. High (2004)
119 Cal.App.4th 1192,
1200.) “The clerk cannot supplement the
judgment the court actually pronounced by adding a provision to the minute
order and the abstract of judgment.” (
387-388.)
Both Lee and the Attorney General cite to the
sentencing hearing minute order to establish payment of the fee/assessment were
probation conditions. Neither party
cites to the reporter’s transcript from the sentencing hearing. We have reviewed the reporter’s transcript
from the sentencing hearing. Based on
our review of the transcript, it does not appear the trial court imposed the
section 1465.8, subdivision (a)(1), security fee or Government Code section
70373, subdivision (a)(1), assessment at all.
The clerk cannot supplement the judgment by imposing the fee and
assessment when the trial court failed to do so.
The section 1465.8 security fee and
Government Code section 70373, subdivision (a)(1), assessment are mandatory for
each conviction and may be imposed on appeal.
(People v. Woods (2010) 191
Cal.App.4th 269, 272, 274.) We modify
the judgment to impose two $30 court security fees and two $30 court facilities
assessments. (People v. Walz (2008) 160 Cal.App.4th 1364, 1372.)
DISPOSITION
The probation condition prohibiting Lee from
owning, using or possessing “any type of toys, video games, or similar items
designed for the entertainment of children, without written permission of the
probation officer[]” is stricken. The
judgment is modified to impose two $30 court security fees pursuant to section
1465.8, subdivision (a)(1), and two $30 court facilities assessments pursuant
to Government Code section 70373, subdivision (a)(1). The judgment is affirmed as modified.
O’LEARY,
P. J.
WE CONCUR:
BEDSWORTH, J.
ARONSON, J.
name="_ftn1" title="">[1] An
audiotape of the telephone call was played for the jury.
name="_ftn2" title="">[2] All
further statutory references are to the Penal Code, unless otherwise
indicated.
