P. v. Moreland
Filed 3/8/13 P. v. Moreland CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
GEORGE MORELAND,
Defendant and Appellant.
D058995
(Super. Ct.
No. SCS233770)
APPEAL from
a judgment of the Superior Court
of
County, David M. Gill, Judge.
Affirmed.
Defendant
George Moreland was convicted of multiple counts of violent
lured into his truck under the guise of hiring them to clean his house. The trial court sentenced Moreland to a total
of 295 years in prison and imposed a $10,000 restitution fine.
On appeal, Moreland contends the
trial court erred in admitting evidence of an uncharged offense and in
instructing the jury that it could consider the charged offenses as evidence of
his propensity to commit sex crimes.
Moreland also argues the trial court erred in admitting the recording of
a 911 call from one of the victims and in imposing the restitution fine.
We find no
error with respect to admission of evidence of the uncharged crime. Although we do find the trial court gave a
somewhat confusing instruction with respect to use of each charged crime as
proof of the other crime, the confusion, if any, was not prejudicial. We find no error in admission of the 911
recording and imposition of the restitution fine. Accordingly, we affirm the judgment of
conviction.
FACTUAL AND
PROCEDURAL BACKGROUND
1. Prior
Uncharged Offense
In November
1997, Moreland was the manager of a San Diego County Radio Shack store. Around noon
one day, an 18-year-old woman named Stacy walked into the store, where Moreland
was working alone. While Stacey was
looking at speakers in the back of the store, Moreland grabbed her from behind,
put his hands over her mouth and dragged her to a storage room. Stacey kicked and screamed. She also had an involuntary bowel movement.
In the
storage room, Moreland bound Stacey's hands with plastic zip ties. Stacey begged Moreland to let her go. In response, Moreland tried to cover her
mouth with duct tape and threatened to kill her. When she kept begging him to let her go,
Moreland grabbed Stacey's throat and again threatened to kill her.
After
Moreland bound Stacey and threatened her, he left the storage room and locked
the front door to the store. When he
returned to the storage room, he smelled Stacey's bowel movement; he then led
her to a bathroom, where first he tried to clean her and then untied her and
let her clean herself. He asked Stacey
her name and verified her answer by looking in her purse and finding her
driver's license.
Moreland
told Stacey he was sorry and could not believe what he was doing, and that she
was "so beautiful." Moreland
told her he would give her anything she wanted.
While Stacey was telling Moreland she really just wanted the bracelet
she had been wearing, they heard a loud alarm in the store. Moreland went out of the storeroom, came back
and said, "Oh no" or "Oh shit." Moreland then told Stacey to "be a
friend." Stacey went out of the
storeroom and saw what seemed to her to be 20 police officers who had broken
down the front door.
As a result
of the assault on Stacey, Moreland pled guilty to kidnapping with intent to
commit a sexual offense and was imprisoned.
Moreland was released from prison in 2002.
2.
F.
On July 6, 2009, Moreland was driving a white truck in Bonita
and approached two female residents of Tijuana,
F. and her friend J. F. and J. were
walking to jobs as house cleaners in the area.
Moreland asked the women if they would work for him. J. declined the offer, but F. agreed. Moreland instructed F. to meet him at 9:00 a.m. the following day at a nearby Vons
grocery store.
As planned, the following morning
Moreland met F. at the Vons and she got in his truck. Moreland drove for about 25 minutes to his
house. F. noticed that outside
Moreland's house there was a tree with a small horse, like a swing, hanging. Once they were inside the house, Moreland
showed F., who does not understand English very well, where the cleaning
supplies were and motioned to her about what he wanted cleaned.
F. began cleaning a small
bedroom. Moreland came into the bedroom
and motioned for her to go into the living room. When they were in the living room, Moreland,
using a combination of words, gestures, and a drawing, asked F. to take off her
blouse. When F. refused, Moreland pulled
out a knife and threatened her with it.
In response, F. took off her blouse.
Moreland used the knife again to compel F. to take off her pants, her
bra, and her underwear.
Moreland then sat on the couch and
forced F. to orally copulate him.
Moreland then took F. to a bedroom, where he undressed and ordered her
to lie down on a bed. On the bed he touched,
kissed and licked her breasts. Moreland
then forced F. to again orally copulate him while he penetrated her vagina with
his fingers and slapped her buttocks.
Next, Moreland forced F. to kneel
on two pillows on the floor and orally copulate him. Moreland attempted to ejaculate in F.'s
mouth, but she was able to turn her head away and Moreland ejaculated on her
chest.
Moreland cleaned himself, dressed
and permitted F. to clean and dress herself.
He then took F. to the San Ysidro border, gave her $200 and told her he
would see her on the following Friday afternoon with another $200.
At various points during the attack
on F., in addition to using a knife to threaten F., Moreland grabbed F.'s hands
and pulled her towards him, grabbed her head and forced her to orally copulate
him, and tried to force her mouth open so that he could ejaculate in it. At one point, he told her she was
"beautiful."
Instead of going across the border
into Mexico, F.
called 911 and reported she had been sexually assaulted. The recording of her 911 call, in which she
repeatedly breaks down crying, was played for the jury. During the course of investigating the
assault, DNA was retrieved from the semen on F.'s face and chest, and it
matched DNA retrieved from a sample provided by Moreland.
F. was able to identify Moreland in
a photo lineup and recalled he had a snake tattoo on his upper right arm. After Moreland was identified as her
assailant, investigators drove F. to his house.
As the investigators turned off Jamacha Road
and onto Jalisco Road, near
Moreland's house, F. became very emotional and said, "This is it. This is it."
F. was also able to identify one of
the knives found in Moreland's home as the knife with which Moreland threatened
her.
Following Moreland's attack on her,
F. gave up cleaning houses.
3.
About three months later, on October 1, 2009, Moreland approached E., another resident
of Tijuana, as E. was walking up a
hill in Chula Vista. Using words and gestures, Moreland offered E.
$100 to clean his house. E. agreed and
got into his truck.
According
to E., Moreland drove for about 25 minutes before reaching his house. As E. was putting down her purse on the
living room couch, Moreland gestured as if he were taking off his shirt and
pointed at E. E. said no, and in
response, Moreland took out a knife from his pocket and threatened E. with
it. Although E. attempted to resist,
Moreland took off both her shirt and bra.
He then began touching her breasts.
Moreland
then pulled down E.'s pants, and when he did so, she reached into her underwear
and retrieved a sanitary napkin.
Moreland took off E.'s pants and underwear and bent her over a small
table, where he rubbed his penis against her buttocks and attempted to
penetrate her anus.
Next,
Moreland forced E. to kneel down and orally copulate him. E. cried and told Moreland she did not want
to perform oral sex on him. Moreland
ignored E.'s statements and, while holding the knife in one hand, he used his
other hand to move her head.
Moreland
then took E. to a bedroom where he again made her kneel and orally copulate him
while she was crying. Moreland
ejaculated on E.'s face and then cleaned her face with a towel. Moreland then directed E. to the living room.
E. got
dressed and Moreland drove her back to the location in Chula
Vista where he initially approached her. Before E. got out of the truck, Moreland put
some rolled-up money in her hands.
E. walked
to a friend's house and told her friend, Lupita, what had happened. Because E. was afraid she would lose her
visa, E. told Lupita not to call the police.
Lupita called a second friend, Roxana.
Roxana picked E. up and took E. to
Roxana's house. Roxana noticed that E.
was upset and kept crying and crying; Roxana also noticed that E.'s blouse was
stained. E. took a shower and Roxana gave
her a sleeping pill. When E. woke up,
she discovered that Lupita's son had called police. Roxana then drove E. to a nearby police
station.
4.
Trial and Sentence
Moreland was arrested and charged
with multiple counts of forcible oral copulation (Pen. Code,
false imprisonment (§§ 236 & 237, subd. (a)), one count of forcible
sexual penetration (§ 289), and one count of attempted forcible sodomy
(§§ 664/286). The district attorney
made related allegations that the oral copulation offenses were committed
against more than one victim and that Moreland personally used a deadly
weapon. (§§ 667.61, subds. (b), (c)
& (e), 12022.3, subd. (a).)
At trial, Moreland testified he
believed that F. and E. consented to the sex acts he performed.
The jury acquitted Moreland of one
count of forcible oral copulation and convicted him on the remaining counts;
the jury also found true the multiple victim and weapons allegations. The trial court sentenced Moreland to serve
295 years to life in prison.
DISCUSSION
I.
By way of a motion in limine,
Moreland sought an order preventing admission of evidence of his assault on
Stacey. After conducting a hearing on
the motion, the trial court denied the motion and permitted Stacey to testify. In his first argument on appeal, Moreland
contends the trial court erred in denying his motion. We find no error. Stacey's testimony was admissible under the
provisions of Evidence Code section 1108.
A.
Legal Principles
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 or offenses is not made
inadmissible by Section 1101, if the evidence is not inadmissible pursuant to
Section 352." As the court in
(Falsetta) stated, Evidence Code
section 1108 was enacted to "expand the admissibility of disposition or
propensity evidence in sex offense cases. . . . [¶]
. . . [S]ection 1108 was intended in sex offense cases to
relax the evidentiary restraints section 1101, subdivision (a), imposed, to
assure that the trier of fact would be made aware of the defendant's other sex
offenses in evaluating the victim's and the defendant's credibility. In this regard, section 1108 implicitly
abrogates prior decisions of this court indicating that 'propensity' evidence
is per se unduly prejudicial to the defense.
[Citation.]" (
In sum, "the Legislature's
principal justification for adopting section 1108 was a practical one: By their very nature, sex crimes are usually
committed in seclusion without third party witnesses or substantial
corroborating evidence. The ensuing
trial often presents conflicting versions of the event and requires the trier
of fact to make difficult credibility determinations. Section 1108 provides the trier of fact in a
sex offense case the opportunity to learn of the defendant's possible
disposition to commit sex crimes.
[Citation.]" (
Importantly, "[t]he charged
and uncharged crimes need not be sufficiently similar that evidence of the
latter would be admissible under Evidence Code section 1101, otherwise Evidence
Code section 1108 would serve no purpose.
It is enough the charged and uncharged offenses are sex offenses as
defined in section 1108." (
30, 41, fn. omitted; see also Falsetta,
supra, 21 Cal.4th at p. 916.)
However, under Evidence Code section 352, a trial court must nonetheless
determine whether admission of a prior sex crime is unduly prejudicial. "By reason of section 1108, trial courts
may no longer deem 'propensity' evidence unduly prejudicial per se, but must
engage in a careful weighing process under section 352. 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.
[Citations]." (
We review the trial court's ruling
on admission of evidence of a prior sex crime under an abuse of discretion
standard. (People v. Wesson (2006) 138 Cal.App.4th 959, 969.)
B.
Analysis
Admission of Moreland's assault on
Stacey falls squarely within the confines of Evidence Code section 1108. It was a sex crime in which, like the charged
crimes, he attacked a woman who was a stranger to him, restrained her, moved
her to an isolated location and forced her to disrobe. Because the prior crime showed a propensity
to commit sex crimes, it fell within the overall intent of the statute. However, the fact that the prior act shows a
propensity to commit sex crimes does not end our analysis. (Falsetta,
supra, 21 Cal.4th at pp. 916-917.)
We must also review the trial court's determination that the evidence
was not barred by Evidence Code section 352.
As the trial court noted, in
important respects there was substantial similarity between all three
crimes: they all involved moving and
isolating adult women, substantial physical contact in restraining them, and
threats of grave harm or death. The
similarity in the crimes made the prior act highly relevant and probative with
respect to the credibility of F. and E. and their testimony that they did not
consent to any of the sex acts Moreland performed. In light of Moreland's conviction with
respect to the attack on Stacey, there was no doubt as to the certainty the
attack occurred or any risk the jury would feel a need to punish Moreland for
the prior offense. Because the charged
crimes occurred only seven years after Moreland was released following his
attack on Stacey, the attack on Stacey was in no sense too remote to be
relevant. (Compare People v. Wesson, supra,
138 Cal.App.4th at p. 970 [14-year-old uncharged act not too remote] with
274, 284 [30-year-old uncharged act not too remote].) Moreover, because Stacey was rescued by
police before Moreland was able to complete any sex acts on her, the
circumstances of the prior crime were not any more inflammatory than the
repeated and degrading acts he performed on F. and E. In light of all these circumstances, the
trial court could reasonably conclude that the probative value of evidence of
the attack on Stacey outweighed any prejudicial impact.
In sum, the trial court properly
admitted evidence of the attack on Stacey.
II.
Next,
Moreland contends the trial court erred in instructing the jury that in
addition to considering the attack on Stacey as showing a propensity to commit
sexual offenses within the meaning of Evidence Code section 1108, they could
also use the evidence of the crimes against F. and E. for the same
purpose. In particular, the trial court
instructed that if by a preponderance of evidence the jury found that either
the assault on Stacey occurred or one of the charged offenses occurred, the
jury could consider those offenses in determining whether the other charged
offense occurred. The trial court
instructed the jury that with respect to its ultimate determination of guilt on
the charged offenses, evidence of the other crimes was not enough by itself to
meet the prosecution's burden.
As we
explain, although the trial court's reference to the preponderance of evidence
needed for use of one charged crime as proof of the other charged crime had the
potential for confusion, in light of the trial court's other instructions and
the overwhelming evidence of Moreland's guilt, we find no likelihood that
aspect of the instruction had any impact on the jury's verdict.
A.
Legal Analysis
Shortly, after the briefs in this
case were filed, the Supreme Court rendered its opinion in People v. Villatoro (2012) 54 Cal.4th 1152 (Villatoro), in which it rejected the reasoning in
Cal.App.4th 572 (Quintanilla), upon
which Moreland relies, and held that Evidence Code section 1108 applies to
charged as well as uncharged sex crimes.
In particular, the Supreme Court held the trial court in that case
properly instructed the jury that if it found that charged sex offenses
occurred, it could use them in considering whether the defendant was disposed
to commit the other charged offenses. (
court stated: "[W]e conclude
nothing in the language of section 1108 restricts its application to uncharged
offenses. Indeed, the clear purpose of
section 1108 is to permit the jury's consideration of evidence of a defendant's
propensity to commit sexual offenses.
'The propensity to commit sexual offenses is not a common attribute among
the general public. Therefore, evidence
that a particular defendant has such a propensity is especially probative and
should be considered by the trier of fact when determining the credibility of a
victim's testimony.' [Citations.] . . . In light of this clear
purpose, we perceive no reason why the Legislature would exclude charged sexual
offenses from section 1108's purview, and no indication that it did so in
either the text of section 1108 or its legislative history. Whether an offense is charged or uncharged in
the current prosecution does not affect in any way its relevance as propensity
evidence. Indeed, section 1108's
legislative history explains that '"admission and consideration of evidence of other sexual offenses to show
character or disposition would be no longer treated as intrinsically
prejudicial or impermissible."'
[Citations.]" (
In both Villatoro and Wilson, in
which the court also held that Evidence Code section 1108 applies to charged as
well as uncharged crimes, the trial courts did not instruct the juries that
they could use evidence of a charged crime if they found by a preponderance of
the evidence that the crime was committed.
(Villatoro,
beyond a reasonable doubt that a charged crime had occurred before it could use
it as evidence of another charged crime.
(Villatoro,
the instruction made no reference to the preponderance of evidence
standard. (Wilson, at pp.
1052-1053.) Thus, in both cases the
trial court's instructions did not create any risk the juries would apply an
impermissibly low standard of proof with respect to the defendants' guilt as to
the charged offenses, a concern raised by the court in Quintanilla. (See
at p. 583.)
Here, the trial court
offense, if proven by a preponderance of the evidence, could be used as
evidence of Moreland's disposition to commit the other charged crime. As suggested by the court in
that a jury may apply an impermissibly low standard of proof on the question of
the defendant's guilt. However, on this
record we have no doubt the jury, given an instruction similar to the ones
approved in Villatoro and
version of events.
First, we note the trial court
emphasized to the jury that "[t]he bottom line . . . is the ever
present, ever constant proof beyond a reasonable doubt." The trial court also reminded the jury that
evidence of either the uncharged crime committed on Stacey or one of the
charged crimes was not sufficient for the prosecution to "carry their
burden of proof for the charges that are before you here in this case." The written instruction provided to the jury
reminded jurors "[t]he People must still prove each charge and allegation
beyond a reasonable doubt." We also
note the trial court provided the jury with accurate general instructions on
the burden of proof and the presumption of innocence.
Second, the record contains
overwhelming proof of Moreland's guilt.
Moreland did not dispute that he approached both women, took each of
them on a 25-minute journey to his home, and performed sex acts with them at his
home. The only dispute was whether they
consented to those acts. On the issue of
consent, there is not only the powerfully reinforcing aspect of each woman's
almost identical account of what happened when they arrived at Moreland's home
and the fact these incidents occurred within a period of three months to two
women who did not know each other. There
is also Stacey's account of Moreland's earlier attack on her. In addition, however, there was ample
evidence of the traumatic impact these incidents had on both F. and E. The jury heard F.'s emotional 911 call and
heard from E.'s friends, Lupita and Roxana, about the trauma they observed
after Moreland attacked E. That evidence
of trauma made the victim's version of events far more credible than
Moreland's.
Thus, although a less confusing
instruction was certainly preferable, in the light of these circumstances, we
have no reasonable doubt that given a simpler instruction the jury would have
returned an identical guilty verdict.
III.
Over Moreland's hearsay objection,
the trial court permitted the prosecution to play a recording of the 911 call
F. made after Moreland dropped her off at the border. The trial court found that the statements F.
made were spontaneous utterances within the hearsay exception provided by Evidence
Code section 1240.
In the tape, F. can be heard
sobbing while she related to the operator what had happened to her. According to F., Moreland dropped F. off
about a half hour before she was able to locate a telephone and place the call. Although F. had a cell phone, it does not
permit her to make calls on the United States side of the border.
On appeal, Moreland argues that the
one-half hour, which elapsed between the time Moreland dropped F. off and the
time she made the call, deprived F.'s statements of the spontaneity required by
Evidence Code section 1240. In
particular, Moreland notes that in arguing for admission of the tape, the
prosecutor conceded that F. may have needed the 30 minutes after Moreland dropped
her off to "collect her thoughts."
We find no error.
A.
Legal Principles
Evidence Code section 1240 provides
an exception to the hearsay rule for the statement of a declarant which:
"(a) Purports to narrate, describe, or explain an act, condition, or event
perceived by the declarant; and [¶] (b) Was made spontaneously while the
declarant was under the stress of excitement caused by such
perception." We review the
admission of evidence under Evidence Code section 1240 for abuse of discretion. (People
v. Phillips (2000) 22 Cal.4th 226, 236.)
In discussing the role timing and
circumstance play in determining whether a statement falls within the exception
for spontaneous utterances, the court in People
v. Farmer (1989) 47 Cal.3d 888, 903-904 stated: "[T]he basis for the circumstantial trustworthiness
of spontaneous utterances is that in the stress of nervous excitement, the
reflective faculties may be stilled and the utterance may become the
instinctive and uninhibited expression of the speaker's actual impressions and
belief. [¶] The crucial element in
determining whether a declaration is sufficiently reliable to be admissible
under this exception to the hearsay rule is thus not the nature of the statement but the mental state of the speaker. The nature of the utterance -- how long it was
made after the startling incident and whether the speaker blurted it out, for
example -- may be important, but solely as an indicator of the mental state of
the declarant. The fact that a statement
is made in response to questioning is one factor suggesting the answer may be
the product of deliberation, but it does not ipso facto deprive the statement
of spontaneity. Thus, an answer to a
simple inquiry has been held to be spontaneous." (Italics added.)
In a domestic violence case,
Cal.App.4th 1584, the victim arrived at a police station after arguing with her
husband. Approximately 30 minutes after
the argument, she told officers questioning her that during the argument her
husband had choked her, pushed her, hit her and threatened to kill her. When she failed to appear at her husband's
trial, an investigating officer testified as to what she told him. Citing cases in which as much as one to two
days had elapsed between a traumatic event and an excited utterance, the court
rejected the husband's contention that the 30-minute period between the
argument and his wife's statement deprived her statement of the required
spontaneity: "Much longer periods
of time have been found not to preclude application of the spontaneous utterance
hearsay exception.
[Citations.]" (
contention that the wife's presumed act of driving herself to the police
station deprived her statement of its spontaneity. (Ibid.) The court found the wife's ability to escape
danger in a car, and the fact that the disputed statements were made in
response to routine questions from investigators, did not alter its conclusion
about her mental state at the time she made the statements. (Id.
at pp. 1589-1590.) "The crucial
issue is the declarant's mental state and the evidence shows [the victim] was
quite distraught; when [the investigating officer] initially encountered her at
the police station, she was crying, shaking and fearful." (Id.
at p. 1590.)
B.
Here, the fact that 30 minutes elapsed between the time
Moreland dropped F. off at the border and the time she was able to locate a
telephone and call police in no sense deprived her statements to the 911
operator of the spontaneity required by Evidence Code section 1240. The sobbing which was heard on the 911 tape
itself is evidence that F. was still under the stress of the profound trauma
imposed on her by Moreland. However, the
nature of the trauma F. endured, which included her abduction, threats to her
life and multiple forcible and degrading sex acts, is even more powerful
evidence that the time and effort F. took in locating a telephone and summoning
the emotional wherewithal to report what had happened to her, was operating on
her in a substantial way when she contacted the 911 operator. Given the nature of what F. suffered, the
trial court could quite reasonably conclude that the stress of such profound
events did not dissipate within a mere hour of their occurrence. Thus, the trial court did not abuse its
discretion in admitting the recording of F.'s 911 call.
IV.
Finally,
Moreland argues that the trial court abused its discretion in accepting the
probation department's recommendation that it impose a $10,000 restitution
fine. (§ 1202.4.) Moreland argues that because he will likely
be spending the rest of his life in prison and has little if any prospect of
paying the fine, the fine should be reduced to the statutory minimum of $200. We find no abuse of discretion.
While the ability
to pay or difficulty paying a restitution fine is a factor a trial court should
consider in imposing a restitution fine above the mandatory statutory minimum,
it is not a decisive factor. (
Cal.App.4th 486, 504-505.) The court
must also consider "the seriousness and gravity of the offense and the
circumstances of its commission."
(§ 1202.4, subd. (d).)
Where, as here, the crimes were serious and grave, involved two very
vulnerable victims, and were committed in a violent, degrading and humiliating
manner, the trial court did not abuse its discretion in imposing the maximum
fine, notwithstanding the challenges Moreland will face in paying it.
DISPOSITION
The
judgment of conviction is affirmed.
BENKE, Acting P. J.
WE CONCUR:
McINTYRE,
J.
AARON,
J.
name="_ftn1" title="">[1] At trial, the trial court arranged
for Stacey to testify in the jury lounge rather than in its courtroom because
anxiety and claustrophobia Stacey suffered following Moreland's attack on her
made it difficult for Stacey to go upstairs and into the courtroom. The trial court made this arrangement without
explaining to the jury its reasons for doing so and instead simply stated on
the record that the courtroom was not available on the day of Stacey's
testimony.
name="_ftn2" title="">[2] All further statutory references are
to the Penal Code unless otherwise indicated.
