P. v.
Filed 3/2/12 P. v. Macon CA2/5
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
RONNIE MACON,
Defendant and Appellant.
B233585
(Los Angeles
County
Super. Ct.
No. BA358969)
APPEAL from a judgment of the Superior
Court of
County, Lisa B. Lench, Judge.
Affirmed.
Vanessa
Place, under appointment by the Court of Appeal,
for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Zee Rodriguez and Viet H. Nguyen, Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant and
appellant Ronnie Macon (defendant) was convicted of three counts of committing
a forcible lewd act upon a child under 14
years old (Pen. Code, § 288, subd. (b)(1)
and three counts of committing a lewd act upon a child under 14 years old (§
288, subd. (a)). On appeal, defendant
contends that the trial court erred in admitting evidence of defendant’s acts
of prior sexual abuse, and Evidence Code section 1108 violates the
States Constitution. We affirm the
judgment.
BACKGROUND
A.
Factual
Background
1. Lewd Acts Committed Upon W.A.
W.A. testified at trial that he was
born in 1991. When he was approximately
10 years old he moved from living in his father’s home to live with his mother
(mother) and defendant, mother’s boyfriend.
W.A. testified that “every other
week or every other day” defendant punched and head-butted him. Defendant would scream and curse at W.A. and
mother. On one occasion, W.A. saw
defendant point a knife to mother’s stomach and was surprised that defendant
did not stab her.
W.A.
testified that defendant began to sexually abuse him when W.A. was approximately
10 years old. The first incident
occurred when W.A., asleep in his bed, was awakened by defendant grabbing
W.A.’s penis. Defendant told W.A. to get
off the bed and “suck on [defendant’s] dick.”
W.A. was “really scared”—afraid that defendant would hurt him or mother
if he did not do what defendant said.
Defendant took off his underwear and told W.A. to put defendant’s penis
in his mouth. Defendant then told W.A.
to put W.A.’s finger inside defendant’s mouth and “suck on [defendant’s] penis,
how [defendant] sucked on [W.A.’s] finger.”
W.A. complied. Defendant then
told W.A. to suck on defendant’s nipple, and defendant masturbated. After defendant ejaculated, defendant told
W.A. to suck on defendant’s penis again and “swallow what [was] on it.” Defendant told W.A. to continue orally
copulating defendant until after defendant ejaculated again. Defendant punched W.A. on the lip because
W.A. had bitten defendant. Defendant
also orally copulated W.A. W.A. wanted
to cry, but he did not because he believed that if he did defendant “was going
to hurt me more than I was already feeling.”
W.A. did not sleep that night.
W.A.
testified that the next incident occurred when he was approximately eleven
years old. Defendant stopped W.A. after
W.A. exited the bathroom, and told W.A. to get on his knees and orally copulate
him. W.A. did not want to do it, but he
“knew that if I didn’t [defendant] would end up hurting me.” W.A. did not cry because defendant would
usually slap W.A. or tell W.A. to stop crying.
The third
incident occurred when W.A. was eleven years old. When W.A. was watching television with his
three-year-old sister and defendant, defendant told W.A. to orally copulate
him. W.A. was afraid that if he refused
to comply with defendant’s directive, he was not sure if defendant was going to
hit him. When W.A. approached defendant,
defendant pulled down his underwear and told W.A. to suck defendant’s
penis. W.A.’s three-year-old sister was
sitting directly across from defendant.
As W.A. was orally copulating defendant, defendant put his hands on the
back of W.A.’s head and pushed W.A.’s head down to make defendant’s penis go
deeper into W.A.’s mouth. As defendant
had done during the first incident, he told W.A. to suck defendant’s nipple until
he ejaculated and to “go down and swallow it.”
W.A.
testified that a fourth incident occurred when W.A. was in his bedroom watching
a movie on the television. Defendant
entered W.A.’s bedroom and told W.A. to orally copulate him. W.A.’s “heart dropped” because he thought
that the sexual abuse was “completely over with.” W.A. went over to defendant and dropped to
his knees. Defendant took out his penis,
and while W.A. was orally copulating him, defendant put his hands on the side
of W.A.’s head, guiding W.A.’s head back and forth.
At the
preliminary hearing, W.A. testified that he thought it was two weeks from the
time of the first incident to the fourth and last incident. At trial, W.A. testified that he believed the
incidents occurred over the course of more than two weeks, but less than a
month.
W.A.
testified that he never told mother about the sexual abuse because defendant
had threatened W.A. and told him not to tell anyone about it. W.A. did not tell his father because W.A. was
afraid of defendant. When W.A. was
approximately seventeen years old, he finally told someone about the
abuse. W.A. told his mentor, Colleen,
whom he found on a website where people offer advice on personal
questions. Colleen assisted W.A. in
telling mother about the sexual abuse, and approximately one week later W.A.
told the police.
2. Prior Convictions for Committing Lewd
Acts Upon A.M. and K.F.
testimony
A.M.
testified that defendant was her uncle.
In approximately 1986, when A.M was two to four years old, defendant
sexually abused her while defendant lived with A.M’s family. “On a regular basis,” defendant touched
A.M.’s vagina with his finger and penis both over and under A.M.’s clothing. A.M. did not specifically recall at the time
of trial whether defendant penetrated her with his penis, but she told the
police shortly after the abuse occurred that defendant did. Defendant also made A.M. orally copulate him,
and put A.M. on top of him and “rub[bed]” her against him. Defendant ejaculated during his sexual abuse
of A.M. Defendant also performed oral
sex on A.M. A.M. further testified that
her cousin, K.F., who is about five years older than she, was staying in A.M.’s
house for “a couple of weeks” and present during some of the incidents of
defendant’s sexual abuse of A.M. A.M.
also saw defendant force K.F. to engage in similar sexual conduct with
defendant.
A.M.
testified also that she would cry and tell defendant that she did not want do
those things, and defendant responded by telling A.M. that if she did not do
them he would hurt her or her family.
A.M. did not tell anyone of defendant’s abuse of her while defendant was
living with A.M. because she was scared.
A.M. told her mother of the incidents of abuse after defendant moved out
of A.M.’s home, and A.M. reported the abuse to the police. Defendant was later convicted for sexually
abusing A.M. and K.F. and sentenced to prison.
testimony
K.F.
testified that she is A.M.’s cousin. In
1987, when K.F. was eight years old, defendant sexually molested K.F. multiple
times while she was staying in
A.M.’s house for two weeks. Defendant
“grind[ed]” his penis on K.F. as she lay on top of defendant while on a
couch. Defendant forced both A.M. and
K.F. to orally copulate him and lick his buttock. Defendant made K.F. orally copulate him and
he ejaculated into her mouth, penetrated K.F.’s anus with his penis, and made
K.F. perform oral sex on A.M. K.F. was
“terrified” and “scared out of [her] mind.”
Over the two week period defendant sexually molested K.F., K.F. did not
tell anyone what defendant was doing because defendant threatened to kill her
relatives. K.F. eventually told the
police.
B.
Procedural
Background
The District Attorney of Los
Angeles County filed an information charging defendant with three counts of
committing a forcible lewd act upon a child under 14 years old in violation of
section 288, subdivision (b)(1) (counts 1, 4, 5) and three counts of committing
a lewd act upon a child under 14 years old in violation of section 288,
subdivision (a) (counts 2, 3, 6). The
District Attorney alleged as to all counts that defendant suffered four prior
convictions specified in section 667.61, subdivisions (a) and (d), four prior
convictions for committing a lewd act upon a child (§ 667.71), and four serious
or violent felony convictions (§§ 667, subds. (b)-(i), 1170.12, subds.
(a)-(d)). The trial court amended the
information changing the charged crime in count 4 to committing a lewd act upon
a child (§ 288, subd. (a)) and the charged crime in count 6 to committing a
forcible lewd act upon a child (§ 288, subd. (b)(1)).
The
prosecutor moved to admit evidence that defendant had sexually abused A.M. and
K.F. to show defendant’s propensity to commit sexual offenses. Defendant opposed the motion, arguing the
incidents were remote in time, the prior incidents were not similar to the
current offense, and the evidence of the prior abuse was extremely
inflammatory. Following the arguments by
the prosecutor and defense counsel,
the trial court granted the prosecutor’s motion and admitted the evidence, over
defendant’s Evidence Code sections 352 and 1108 objections, stating, “So in
terms of my evaluation, it appears to me that it is not an undue consumption of
time, and it is not undu[ly] prejudic[ial] in terms of the amount of time that
this would take or potential for prejudice in this matter.” In March 2011, after the introduction of evidence
at trial, the jury was instructed with Judicial Council of California Criminal
Jury Instructions (2011) CALCRIM No. 1191, the pattern instruction for
considering evidence of a prior sexual offense.
Following a trial, the jury found
defendant guilty of the charged offenses.
Defendant waived his right to a jury trial on the prior conviction
allegations, and the trial court found the prior conviction allegations to be
true. The trial court denied probation
and sentenced defendant to a total state
prison term of 300 years to life.
DISCUSSION
Trial Court Did Not Err in Admitting Evidence of the Prior Sexual
Defendant
contends that trial court abused its discretion under Evidence Code sections 352
in admitting evidence of defendant’s prior sexual abuse of A.M. and K.F. We disagree.
1. Standard of Review
Defendant’s
challenge to the admissibility of evidence of his prior sexual abuse as a
violation of Evidence Code section 352 is analyzed under an abuse of discretion
standard. (People v. Griffin (2004) 33 Cal.4th 536, 577; People v. Yovanov (1999) 69 Cal.App.4th 392, 406.) “A trial court abuses its discretion when its
ruling ‘fall[s] “outside the bounds of reason.”’ [Citations.]”
(People v. Waidla (2000) 22
Cal.4th 690, 714.) “We will not overturn
or disturb a trial court’s exercise of its discretion under section 352 in the
absence of manifest abuse, upon a finding that its decision was palpably
arbitrary, capricious and patently absurd.
[Citations.] ‘The [trial] court’s
exercise of discretion under Evidence Code section 352 will not be disturbed on
appeal unless the court clearly abused its discretion, e.g., when the
prejudicial effect of the evidence clearly outweighed its probative value.’ [Citation.]”
(People v. Jennings (2000) 81
Cal.App.4th 1301, 1314.)
2. Analysis
Evidence
Code section 1108, subdivision (a) provides: “In a criminal action in which the
defendant is accused of a sexual offense, evidence of the defendant’s commission
of another sexual offense . . . is not made inadmissible by [Evidence Code
s]ection 1101,[
title="">[4]]
if the evidence is not inadmissible pursuant to [Evidence Code s]ection
352.” Evidence Code section 352
provides, “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.”
“[E]vidence of a ‘prior
sexual offense is indisputably relevant in a prosecution for another sexual
offense.’ [Citation.]” (People
v. Branch (2001) 91 Cal.App.4th 274, 282-283.) The
prior sexual abuse of A.M. and K.F. and the abuse of W.A. were similar.
“Under Evidence Code section 1108, subdivision (d)(1)(A)
through (F), the prior and charged offenses are considered sufficiently
similar, for admissibility in this manner, if they are both the type of sexual
offenses enumerated there.
[Citation.]” (
Cal.App.4th 1085, 1099.) At a minimum,
Evidence Code section 1108, subdivision (d)(1)(C) [“Contact, without consent,
between any part of the defendant's body or an object and the genitals or anus
of another person” and subdivision (d)(1)(D) [“Contact, without consent,
between the genitals or anus of the defendant and any part of another person's
body”] are applicable here.
In each
case defendant took advantage of a child that was staying where he lived. Defendant molested and forced each victim to
give him oral sex. And defendant
threatened each child with physical violence.
There are pertinent similarities between the crimes. (See People
v. Cromp (2007) 153 Cal.App.4th 476, 480 [“The fact that defendant
committed a sexual offense on a particularly vulnerable victim in the past
logically tends to prove he did so again with respect to the current
offenses”].) Any dissimilarity between
the earlier sexual assaults and the charged acts on W.A. went to the weight,
not the admissibility, of the testimony of A.M. and K.F. (People
v. Mullens (2004) 119 Cal.App.4th 648, 660.)
Defendant
argues that the trial court erred in admitting the testimony of A.M. and K.F.
because they were “far younger” than W.A. when the alleged abuse occurred. A.M and K.F. were two to four and eight years
old, respectively, when they were sexually abused by defendant. W.A. was ten and eleven years old when he was
sexually abused. Although A.M. and K.F.
were younger than W.A. when they were sexually abused, each child was under 14
years of age when defendant sexually abused them. Evidence of defendant’s sexual abuse of A.M.
and K.F., therefore, was probative of defendant’s propensity to commit the
charged offense—lewd acts on a child under age fourteen.
Defendant
contends that the court erred in admitting evidence of defendant’s prior sexual
abuse of A.M. and K.F. because the prior abuse was remote in time. A.M and K.F. were sexually abused by
defendant approximately 15 years before W.A. was abused. “No specific time limits have been
established for determining when an uncharged offense is so remote as to be
inadmissible. [Citation.]” (People
v. Branch, supra, 91 Cal.App.4th
at p. 284.) Here, during the 15 year gap
between the sexual abuse of A.M and K.F., and that of W.A., defendant served
time in prison and did not have an opportunity to abuse W.A. during that
time. In addition, defendant sexually
abused A.M. and K.F. when they were residing with defendant, and the first
instance of defendant’s sexual abuse of W.A. did not occur until the same year
that W.A. moved in to live with defendant and mother.
Furthermore,
because the prior sexual abuse and the abuse of W.A. were similar in several
aspects, as stated ante, the passage
of time does not render evidence of the prior sexual abuse inadmissible. (People
v. Waples (2000) 79 Cal.App.4th 1389, 1395 [“the similarities between the
prior and current acts [of sexual abuse] . . . balanced out the
remoteness [of a 20 year gap]”]; People
v. Soto (1998) 64 Cal.App.4th 966, 977-978, 991 [a 20 to 30 year gap “does
not automatically render the prior incidents prejudicial” when the prior and
charged sexual offenses are similar.]
“Remoteness of prior offenses relates to ‘the question of predisposition
to commit the charged sexual offenses.’
[Citation.] In theory, a
substantial gap between the prior offenses and the charged offenses means that
it is less likely that the defendant had the propensity to commit the charged
offenses. . . .
[However] if the prior offenses are very similar in nature to the
charged offenses, the prior offenses have greater probative value in proving
propensity to commit the charged offenses.”
(People v. Branch,
Defendant contends that the court
erred in admitting evidence of defendant’s prior sexual abuse of A.M. and K.F.
because, unlike the charged offenses here, there was overwhelming evidence of
defendant’s guilt of the abuse of A.M. and K.F., and “[t]he stronger case made
the weaker [case].” Defendant argues
that A.M. and K.F. reported the abuse soon after it occurred, but W.A. did not
report the abuse for approximately seven years.
Defendant, however, does not argue that without the evidence of the
prior abuse there is not sufficient evidence to support the judgment. In addition, defendant does not cite to the
record in support of his conclusion that A.M. and K.F. reported the abuse “soon
after it occurred.” Our review of the
record fails to disclose when the abuse of A.M. and K.F. was reported (i.e.,
how soon after the abuse occurred). In
any event, the time within which the abuse is reported to the police does not
alone support defendant’s contention that there was a qualitative or
quantitative disparity of evidence of defendant’s guilt.
Defendant contends that the court
erred in admitting the evidence because defendant’s conduct regarding the prior
abuse was “more egregious” than the alleged conduct against W.A. Defendant does not argue in what regard the
prior abuse was more egregious than the alleged abuse of W.A., nor does he
support such a contention with a citation to the record. The prior abuse and the alleged abuse of W.A.
involved vulnerable victims—children under 14 years of age, and defendant
required the victims to engage in multiple acts of sexual conduct under the
threat of physical violence. The
sexual abuse of each of the victims was egregious.
In People v. Abilez (2007) 41 Cal.4th 472, our Supreme Court made it
clear that prior sex offenses were not to be considered inherently
prejudicial. “‘Rather than admit or
exclude every sex offense a defendant commits, 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.’ [Citation.]”
(Id. at p. 502, quoting
People v. Falsetta
(1999) 21 Cal.4th 903, 917 (Falsetta).) The Falsetta
decision had explained that in applying Evidence Code section 1108, “courts
will retain broad discretion to exclude disposition evidence if its prejudicial
effect, including the impact that learning about defendant’s other sex offenses
makes on the jury, outweighs its probative value. [Citations.]” (Id.
at p. 919.) “[A]s the Supreme Court has
repeatedly and recently reaffirmed, ‘when ruling on a section 352 motion, a
trial court need not expressly weigh prejudice against probative value, or even
expressly state that it has done so. All
that is required is that the record demonstrate the trial court understood and
fulfilled its responsibilities under . . . section 352.’ [Citations.]”
(People v. Jennings,
The
admission of the testimony of A.M. and K.F. did not cause defendant to suffer
prejudice in the legal sense. “‘The
“prejudice” referred to in Evidence Code section 352 applies to evidence which
uniquely tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not
synonymous with “damaging.”’
[Citation.]” (
638; People v. Morton (2008) 159
Cal.App.4th 239, 249.) Further
diminishing the potential for undue prejudice, the trial court instructed the
jury that the prior act evidence was insufficient by itself to prove his guilt
of the charged offense and that the prosecution was still required to prove
each element of the charged offense beyond a reasonable doubt, pursuant to
pattern instruction CALCRIM No. 1191.
We conclude
that the trial court properly admitted the evidence of defendant’s prior sexual
offenses. The trial court did not err.
B. Defendant’s
Constitutional Challenges to Evidence Code Section 1108
Defendant
also argues that Evidence Code section 1108 violates the Due Process
Clause of the United States Constitution by permitting the
introduction of propensity evidence, and the Equal Protection clause by doing
so only in cases of sexual offenses.
Defendant relies upon Garceau v.
Woodford (9th Cir. 2001) 275 F.3d 769, reversed in part,
The
Attorney General correctly argues that defendant’s contention that Evidence
Code section 1108 violated his constitutional rights was not the basis of an
objection in the trial court and thus was forfeited. (People
v. Catlin (2001) 26 Cal.4th 81, 122-123 [“[The] [d]efendant’s contention
that the admission of the other-crimes evidence violated his state and federal
constitutional right to a fair trial is waived because it was not raised
below”]; People v. Williams (1997) 16
Cal.4th 153, 250.)
Notwithstanding
such a forfeiture, Evidence Code section 1108 does not offend due process. The California Supreme Court, in a decision
binding upon this court (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), held that
Evidence Code section 1108 does not violate due process. (Falsetta,
supra, 21 Cal.4th at p. 917.) An earlier decision in People v. Fitch (1997) 55 Cal.App.4th 172, 184-185 (
challenge to Evidence Code section 1108, was cited with approval in
In
addition, defendant’s reliance on Garceau,
supra, 538 U.S. 202, is
misplaced. Garceau did not involve, and did not discuss, the constitutionality
of Evidence Code section 1108.
molestation case, and did not address the propriety of a statute allowing for
admission of prior sex acts to prove propensity or disposition. Nothing in Garceau casts doubt on the Ninth Circuit’s earlier decision in
260 F.3d 1018, which held that admission of uncharged sexual offenses pursuant
to Federal Rules of Evidence, Rules 413 and 414 did not violate the defendant’s
rights to “due process, equal protection, or any other constitutional
guarantee.” (United States v. LeMay, supra,
260 F.3d at p. 1031.) Considering the
unique nature of child sexual assault cases, the discussion in
raised by defendant. In addition, as a
decision of an intermediate federal court, Garceau
is not binding upon the California courts.
(People v. Bradley (1969) 1
Cal.3d 80, 86.) In view of the holdings
in Falsetta and Fitch, we see no reason to revisit the due process and equal
protection issues raised by defendant. (
273, 279.)
The judgment
is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.
MOSK,
J.
We concur:
TURNER,
P. J.
KRIEGLER,
J.
name="_ftn1" title="">[1]
statutory citations are to the Penal Code unless otherwise noted.
name="_ftn2" title="">[2]
did not offer any evidence in his defense.
