P. v. Otto

Filed 5/7/08 P. v. Otto CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

A jury convicted defendant Richard Steven Otto of four counts of lewd acts with a child under age 14 (Pen. Code,  288, subd. (a)^[1]--counts one through three & five) and two counts of lewd acts with a 14-year-old child ( 288, subd. (c)(1)--counts six & seven). The jury found that counts one, two, three and five were committed against two or more victims. ( 667.61, subd. (e)(5).) Three related counts were dismissed after the jury failed to reach a unanimous verdict (counts four, eight & nine). Defendant was sentenced to state prison for 30 years to life, consisting of consecutive terms of 15 years to life on counts one and five, concurrent terms of 15 years to life on counts two and three, and concurrent terms of two years on counts six and seven. He was ordered to have no visitation with victims K.H. and A.B. ( 1202.05.)

Defendant appeals, contending (1) counts six and seven are not supported by sufficient evidence, (2) Evidence Code section 1108 is unconstitutional, (3) admission of evidence of uncharged sexual offenses was an abuse of discretion, (4) documents viewed in camera by the trial court must be reviewed by this court, and (5) the no-contact order must be stricken as to victim A.B. We shall reverse count seven, strike the no-contact order, and affirm the balance of the judgment.

FACTS^[2]

Prosecutions case-in-chief

When A.B. was 13 years old, she and several relatives including her aunt Jennifer and her aunts then-husband, defendant, stayed at her grandparents Tehama County house for the holidays. A.B. slept in the living room with defendant, Jennifer, and their two- or three-year-old daughter, V.O. There were two couches in the room. A.B. slept on one couch and defendant slept on the other. Jennifer and V.O. slept on an air mattress.

At some point during the night, A.B. awoke. Defendant was rubbing her bare skin on her upper thighs, close to [her] butt . . . , just almost as high as you can get without touching other things. When A.B. moved, defendant sat back so that she could not see him. He then started rubbing again (count five). A.B. felt weird, got up, and went to the bathroom. Five minutes later, she looked into the living room and saw defendant back on the couch where he had been sleeping. She returned to her couch, heard him snoring, and went back to sleep.

In November 2001 A.B., who was then 14 years old, moved to the Sacramento County residence of Jennifer and defendant in order to avoid being placed in foster care. After a while, defendant made things difficult for A.B. He would say things to her, including asking her to turn around in new clothes so that he could see her butt.

On one occasion, A.B. slept in her bed and awoke to find defendant rubbing her legs underneath the blankets and sheets. She was scared and lay there for about five minutes. When she would move, he would stop and then start rubbing again. A.B. got up, stormed out of the room, proceeded to the bathroom and cried. When she returned to her room, he was gone. She felt yucky but said nothing because she was afraid of being disbelieved and of being put into foster care. She placed items under her door handle in an effort to keep defendant out.

Defendant, who worked nights, continued to touch A.B. every night that he was home and not working. One night while he was touching her, she sat up in bed and turned on the light. He just sat there and . . . looked at [her], and then crawled out of [her] bedroom.

Defendant did not touch A.B. for a couple of weeks, but then he did it again. She decided to let him know that she knew what he had been doing.

One night, defendant refused to let A.B. attend an event at a local restaurant. She became very angry. A.B. said that she hated him, that he was gross and disgusting, that she knew what he had been doing to her, and that she was going to tell her aunt Jennifer. He told her to get out of his face and go to the event. He also informed her, just to let you know, if you ever say anything to anybody, my exact words will be I dont know what you are talking about.

Following this incident, while A.B. and defendant were watching television, he commented that a singer was pretty. His penis [was] out of his shorts and he was playing with himself. When A.B. said he was disgusting, he replied, well, if you didnt like it, you wouldnt watch, after which she went to her bedroom and slammed [the] door.^[3]

While A.B. lived with defendant and his family, she vacationed with them at Bear Valley. A.B. slept on a bed in the living room. Defendant, Jennifer and V.O. slept in the bedroom. During the night, defendant came out and rubbed A.B.s legs until she got up and went to the bathroom.

After they returned to Sacramento, defendant continued to come into A.B.s bedroom at night and touch her legs. A.B. testified that, towards the very end of her residence with defendant, his touchings got a little higher. She testified hed start to rub my butt and stuff and, um, thats when I just--I couldnt take it anymore. This exchange followed:

[PROSECUTOR]: [H]ow many times, if you can remember, [A.B.], did defendant come into your room at night and rub your buttocks?

[A.B.] That was towards the end, so probably once or twice before I finally told [Jennifer] (counts six & seven).

The only person A.B. had previously told about the molestations was her friend Lauren. A.B. told Lauren that defendant had touched the top of her thigh in her bedroom. A.B. told Lauren that another time, she had awakened to find defendant standing over her and staring at her. After learning what defendant had been doing to A.B., Lauren no longer spent nights at the residence.

In April 2002, during spring break, A.B. and Lauren were in the backyard in their bathing suits. A.B. saw defendant peeking through the blinds at them. A.B. asked defendant if she could go somewhere with Lauren. Defendant said no and became angry when A.B. said that she would ask her aunt Jennifer. A.B. told defendant that he was disgusting and a pervert. She also informed him that she had told Lauren about him and would tell Jennifer as well. Defendant replied, I dont know what you are talking about.

Later, A.B. told Jennifer about defendant touching her. When Jennifer asked defendant, [W]ell, what do you have to say about this? defendant answered, I dont know what shes talking about. A.B. advised Jennifer, [H]e told me he was going to say that. Jennifer made defendant leave for the night. The next morning she took A.B. to the grandparents residence. The following day, A.B. was put in foster care.

Defense

In January 2006, Sacramento Police Detective Vonda Walker had a telephone conversation with A.B., who admitted using information to manipulate defendant. She also advised Walker about the times that defendant molested her.

Defendants friend Donald Jones testified that defendant was always honest and respectful at work. Jones had seen him interact with children and never [saw] him once inappropriately act wrong with a child ever. Jones would have a hard time believing that defendant molested children. His opinion of defendant would change if the molestations were proved. Jones was not present during any of the alleged offenses.

Defendant testified on his own behalf. He denied ever touching A.B. in a sexual way and denied masturbating in front of her.

DISCUSSION

I

Defendant contends there is insufficient evidence to support his convictions on counts six and seven involving the touchings of A.B.s buttocks. He first claims A.B.s testimony that he would start to rub her buttocks is insufficient to prove that he actually did so. He also reasons that her testimony that he rubbed her buttocks probably once or twice is insufficient to prove that he did so on two occasions. We consider these points in turn.

To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole. (Peoplev.Carpenter (1997) 15 Cal.4th 312, 387 (Carpenter), quoting Peoplev.Johnson (1993) 6 Cal.4th 1, 38; see Jacksonv.Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].)

When A.B.s words start to are read, as they must be, in light of the record as a whole (Carpenter, supra, 15 Cal.4th at p. 387), the flaw in defendants first claim becomes patent. A.B. testified that, when she visited her grandparents house at age 13, defendant rubbed her upper thighs close to her buttocks. Then in November 2001, at age 14, A.B. moved into defendants residence and he resumed rubbing her legs. After that, he continued to touch her legs every night that he was home rather than at work. This happened probably no less than five or six times before A.B. responded by turning on the light. After that incident, defendant rubbed her legs in Bear Valley, masturbated in front of her, and continued to enter her room at night. Then, towards the very end, defendant would start to rub her buttocks.

Read in context, the words start to do not refer to acts that were begun but never completed. Rather, the words signal the onset of a different kind of molestation: the rubbing of the buttocks as well as the legs. Rational triers of fact could deduce that defendant began, and completed, the rubbing of the buttocks. (Carpenter, supra, 15 Cal.4th at p. 387.)

Because this testimony denotes completed, and not merely attempted, touching, the jury could find that touching had been proved beyond a reasonable doubt. Contrary to defendants argument, the jury was not required to deduce from A.B.s subsequent statement‑‑that he probably touched her buttocks once or twice‑‑that the touching was a mere probability, or that it had been proved only by a preponderance of evidence.

Defendant next reasons that the words, probably once or twice, can support, at most, only one conviction. He relies on People v. Coelho (2001) 89 Cal.App.4th 861, in which the victim testified that the defendant had penetrated her with his finger. Concerning the number of penetrations, she variously testified about four times, about five, [l]ike four or five, something like that, and I dont know the exact number but, like, a lot. (Id. at p. 870.) The appellate court found that, although the victim equivocated concerning whether there were four orfive penetrations, her testimony reflects substantial certainty that there were four. (Id. at p. 881.) Given her equivocation about whether there were four or five penetrations, [the court found] her testimony to be substantial evidence of only four, not five, acts. (Id. at p. 882, fn. 8.)

The Attorney General counters that, [f]rom the totality of her testimony, it is clear that he indeed touched her at least two times. However, nothing in the passages cited by the Attorney General suggests that A.B. somehow underestimated the number of instances in which defendant had touched her buttocks. Because A.B.s equivocation was closely akin to that in Coelho, we shall affirm count six and reverse count seven. (People v. Coelho, supra, 89 Cal.App.4th at pp. 881-882 & fn. 8.)

II

Defendant contends Evidence Code section 1108 is unconstitutional in that it violates federal and state due process. He acknowledges that California courts have held the statute to be constitutional (e.g., People v. Falsetta (1999) 21 Cal.4th 903, 916 [finding Evidence Code section 1108 does not offend due process]; People v. Hoover (2000) 77 Cal.App.4th 1020, 1025-1030 [same as for Evidence Code section 1109]), but he raises the issue in order to preserve it for federal review. Because Falsetta is binding upon this court, we conclude defendants due process claim has no merit. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

III

Defendant contends the trial court abused its discretion when it allowed the prosecutor to introduce, over his Evidence Code section 352 objection, evidence of his masturbation and his leg touching in Bear Valley. We disagree.

Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (Peoplev.Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

Defendant claims the masturbation and leg-touching incidents were exceedingly inflammatory and would significantly bias any juror against [him], regardless of the facts of the currently charged offense[s] or their relative lack of persuasive power. The governing test, however, evaluates the risk of undue prejudice, that is, evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues, not the prejudice that naturally flows from relevant, highly probative evidence. (People v. Padilla (1995) 11 Cal.4th 891, 925, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)

Against a backdrop of evidence that defendant touched A.B.s upper thighs [p]robably more than ten times, rubbed her buttocks probably once or twice, and committed additional lewd acts upon K.H., evidence that he rubbed A.B.s legs at Bear Valley and masturbated in her view did not tend uniquely to evoke an emotional bias against him. (People v. Padilla, supra, 11 Cal.4th at p. 925.) To the extent the leg rubbing at Bear Valley was damaging, it was because it was highly relevant to defendants similar conduct in rubbing A.B.s buttocks when she stayed at his residence.

Defendant has not shown that admission of the two uncharged incidents was arbitrary, capricious or patently absurd; nor has he shown that their admission resulted in a manifest miscarriage of justice. (Peoplev.Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.) There was no abuse of discretion.

IV

Defendant asks this court to review documents that the trial court examined in camera pursuant to Welfare and Institutions Code section 827, to determine whether they had been properly withheld from his trial counsel. (E.g., Torres v. Superior Court (2000) 80 Cal.App.4th 867, 874.) He claims reversal is required if this court finds it is reasonably probable that a result more favorable to him would have occurred had additional documents been released to counsel. (People v. Hobbs (1994) 7 Cal.4th 948, 977.) Having conducted the review, we conclude a more favorable result is not reasonably probable.

V

Defendant contends, and the Attorney General concedes, the trial court erroneously prohibited him from having visitation privileges with A.B. pursuant to section 1202.05, because the statute applies to a child victim and A.B. was an adult at the time of sentencing. We accept the Attorney Generals concession.

Section 1202.05, subdivision (a), provides in relevant part: Whenever a person is sentenced to the state prison on or after January 1, 1993, for violating Section . . . 288 . . . , and the victim . . . is a child under the age of 18 years, the court shall prohibit all visitation between the defendant and the child victim. The Attorney General notes that the use of is when referring both to the time of sentencing and the age of the victim, is consistent with the statutes purpose of protecting children from further abuse.

Because A.B. was 19 years old at the time of sentencing, she was not subject to the mandatory provisions of section 1202.05. We shall strike the prohibition as it relates to A.B.

The Attorney General argues the case should be remanded to the trial court to reconsider the no-visitation order with respect to [A.B.] under other possible statutes. (Citing  136.2, 646.9, former subd. (k) [now (k)(1)] & 1203.1, subd. (j).) Defendant counters that none of those statutes apply to this case. We consider them in turn.

Although section 136.2 does not indicate on its face that the restraining orders it authorizes are limited to the pendency of the criminal action in which they are issued or to probation conditions, it is properly so construed. (People v. Stone (2004) 123 Cal.App.4th 153, 159.) Even if the present matter were remanded to the trial court, section 136.2 would not authorize it to issue a no-visitation order during defendants life-maximum term of imprisonment.

Section 646.9, former subdivision (k) (now (k)(1)) allows a restraining order in connection with a conviction for stalking. There is no suggestion that defendant was convicted of stalking in this case.

Finally, section 1203.1, subdivision (j) applies to conditions imposed upon persons granted probation. It has no evident application to this case.

The Attorney General lastly asserts that the victim may request a restraining order pursuant to section 527.6 of the Code of Civil Procedure. That statute allows for the issuance of a temporary restraining order and an injunction. But A.B.s need for an injunction prohibiting herself from visiting defendant in state prison is not apparent on this record. No reason for a remand appears.

DISPOSITION

Defendants conviction on count seven is reversed and the section 1202.05 no-visitation order as to victim A.B. is stricken. In all other respects, the judgment is affirmed. The trial court is directed to enter dismissal of count seven and to prepare amended abstracts of judgment (indeterminate and determinate). The court shall forward a certified copy of the amended abstracts to the Department of Corrections and Rehabilitation.

BUTZ , J.

We concur:

NICHOLSON , Acting P.J.

ROBIE , J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

^[1] Undesignated statutory references are to the Penal Code.

^[2] Our statement of facts is limited to counts five through seven, involving victim A.B. The counts involving victims K.H. (counts one through four) and V.O. (counts eight & nine) are not at issue and need not be recounted.

^[3] This incident and evidence of a vacation in Bear Valley were admitted over defense objection pursuant to Evidence Code section 1108.