P. v. Poizner
Filed 1/4/13 P.
v. Poizner 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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT ANDREW
POIZNER,
Defendant and Appellant.
D059561
(Super. Ct. No.
SCD226027)
APPEAL
from a judgment of the Superior Court of
County, Kerry Wells, Judge.
Affirmed.
A
jury convicted Robert Andrew Poizner of committing lewd and lascivious acts
with a child (Pen. Code, § 288, subd. (a), counts 1-6, involving victim Austin
G. and counts 22-23, involving victim Evan W.); committing lewd acts upon a 14
to 15-year-old child (Pen. Code, § 288, subd. (c)(1), counts 12 & 14,
involving Brandon P.); exhibiting harmful matter to a minor (Pen. Code, §
288.2, subd. (a), counts 7, 8 & 15); distributing
or exhibiting harmful matter to a child (Pen. Code, § 313.1, subd. (a),
counts 16, 19 & 27); contributing to the delinquency of a minor (Pen. Code,
§ 272, subd. (a)(1), counts 17, 20, & 21); dissuading a witness (Pen. Code,
§ 136.1, subd. (b)(1), counts 18 & 25); and disobeying a court order (Pen.
Code, § 166, subd. (a)(4), counts 26 & 28).
The jury acquitted Poizner of two counts of lewd and lascivious acts
with a minor as to Brandon P. (counts 9 & 10) and found him guilty of the
lesser included offense of sexual battery (Pen. Code, § 242; counts 11 &
13). As to counts 1-6, 22 and 23, the
jury found true allegations that Poizner committed his crimes on multiple
victims. As to counts 2, 5 and 22, it
found true allegations that Poizner engaged in substantial sexual conduct with
a child under the age of 14, and as to counts 2 and 5, that he used obscene
matter. (Pen. Code, § 1203.066, subds.
(a)(8) & (9).) It found true
allegations that Poizner committed the dissuasion offenses of counts 18 and 25
while on bail. (Pen. Code,
§ 12022.1, subd. (b).) The trial
court sentenced Poizner to an indeterminate term of 75 years to life plus a
consecutive determinate term of seven years.
On
appeal, Poizner contends the trial evidence did not establish the corpus
delicti of certain uncharged criminal acts reflected in journal writings that
were introduced into evidence on the issue of his propensity and the court
prejudicially erred by failing to give sua sponte a proper corpus delicti
instruction as to those uncharged criminal acts. He also contends the court prejudicially
erred by (1) admitting into evidence portions of his journal writings under
Evidence Code
title="">[2] section 1108 because the
actions described in the writings did not qualify as a sexual offense under
that statute; (2) instructing the jury to consider charged offenses as
propensity evidence under section 1108; and (3) allowing the People to admit
evidence of his sexual orientation as well as the cover of a pornographic DVD
on the issue of his intent and instructing the jury that the evidence was
relevant on that issue, or, alternatively, failing to exclude that evidence
under section 352. Poizner maintains the
cumulative impact of these errors requires reversal.
We
decline to apply the corpus delicti rule to the section 1108 uncharged crimes
evidence, and reject Poizner's remaining contentions. Accordingly, we affirm the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
In
2009, Poizner was a volunteer counselor at Pacific Health Systems, a substance
abuse rehabilitation center. There, he
introduced himself to and befriended adolescent boys who were attending
Alcoholics Anonymous (AA) and other group meetings, telling one of the boys he
was there to help keep himself sober and assist other teenage boys. He then brought the boys to his apartment
where he committed acts summarized below and for which he was convicted of the
above-referenced offenses. At trial,
each victim testified about Poizner's conduct and touching, and the
circumstances that otherwise led to the charges against him. Like Poizner's opening brief, our factual
summary focuses mainly on the evidence supporting the felony sexual assault
offenses against Austin G., Brandon P., Evan W., and Andrew D.
Counts
1-8: Austin G.
In
September 2009, Poizner agreed to become the AA sponsor of then 13-year-old
Austin G. One night after an AA meeting,
Poizner obtained Austin's parents' permission to take Austin out for
coffee. Afterwards, Poizner took Austin back to his
apartment, where he put on an adult pornographic movie for Austin to watch and
gave him cigarettes. Poizner sat on a
couch next to Austin and at some point began to touch Austin's genitals
over his clothing, then underneath his clothing. Poizner offered to orally copulate Austin but then
resisted, telling Austin it would be "awkward" since he was Austin's
sponsor. Poizner asked Austin to show him
his penis, and Austin did so by unbuttoning his pants.
Poizner also kissed Austin on his buttocks. Austin and
Poizner eventually left the apartment in Poizner's car, where Poizner again
rubbed Austin's genitals over his clothing.
When Poizner returned Austin home, he told Austin's mother he was gay, but that he was into stable, committed
relationships and not interested in teenagers or boys. Austin did not tell his mother what had happened because he was in shock
and did not want anyone to know about it.
Three
days later, Austin's mother dropped Austin off to meet Poizner at a comedy club. About an hour and a half later, they went back
to Poizner's apartment, where Poizner again put on pornography, pulled down Austin's pants and
began rubbing Austin's genitals. Poizner also
rubbed himself over his clothing, and then asked whether Austin wanted to be
orally copulated. Again, Poizner
refrained, acknowledging his role as Austin's
sponsor. Austin pulled up
his pants, they smoked cigarettes, and Poizner took him home. On the way, Poizner told Austin not to tell
anyone about what had happened.
At
trial, the People played for the jury a tape-recorded pretext call between
Austin and Poizner, in which Austin talked about what had happened.
Poizner asked Austin if he was angry at him, and told him "that shit's never
happened again." Austin asked
Poizner to not touch him on his genitals if they ever went out again, and
Poizner responded with incriminating statements, saying it would "never
again" happen and his touching Austin "was
just like something that just kind of happened . . . ."
Counts
11-18: Brandon P.
In
May 2009, Poizner became Brandon P.'s sponsor at Pacific Health Systems. Brandon P. was 13 years old at the time. Brandon began going to Poizner's apartment where he would spend the night
on Poizner's mattress on the floor, sometimes with other friends, including Austin. Poizner usually slept on the mattress or on a
couch in his bedroom. He would buy Brandon cigarettes,
and also let him watch adult heterosexual pornographic videos.
Sometimes
before or after showing the videos, Poizner would massage Brandon's back or
feet, and sometimes the feet of the other boys.
Sometimes he would hug Brandon and kiss him on the neck, usually when Brandon was
leaving. On about 10 or 15 occasions in
late 2009, Poizner spanked Brandon, sometimes pulling down his pants and exposing his buttocks and
lightly spanking him, and sometimes having Brandon bend over
his knee. Poizner also spoke about his
sex life with Brandon while they were alone, telling Brandon about other men he
had sex with, and describing oral sex.
Poizner once jokingly offered to enter the shower while Brandon was
showering. Brandon saw that
Poizner touched himself in his groin area while the pornography was
playing. On two different occasions,
Poizner tapped Brandon's penis with the back of his hand, once over Brandon's clothes
and another time after quickly pulling down Brandon's
boxers. Brandon testified
that while he was still 13 years old, Poizner had massaged his back
and neck about five times, and had hugged
and kissed him a couple of times.
When
the allegations of Poizner's molestations began to surface, Poizner called
Brandon and told him to avoid speaking with an investigating detective. Poizner picked Brandon up at school that day
to prevent him from seeing the detective.
Count
19: Andrew D.
Andrew
D. was a school friend of Brandon's, and got to know Poizner through
Brandon. He went to Poizner's house with
Brandon and another friend, Colten. They
rented a regular movie and at some point, Poizner massaged Andrew's feet. Andrew fell asleep in Poizner's bed wearing
his shirt and boxer shorts. Colten slept
in the same bed. When Andrew awoke, an
adult heterosexual pornographic movie was playing on the television, and
Poizner, Andrew and Colten watched it for about a half an hour.
Counts
20-23: Evan W.
Evan
W., who was twelve years old at the time of trial, was another school friend of
Brandon's and met Poizner through Brandon.
One night, Evan called Poizner, who picked him up in Encinitas and took
him downtown where they ate and walked around, and eventually ended up at
Poizner's apartment. Evan and Poizner
watched a movie, and Evan consumed most of an alcoholic drink that Poizner had
purchased for him. Evan was lying on
Poizner's bed over the covers but got sick and passed out, awaking to find
himself under the covers with adult heterosexual pornography on the
television.
Evan
estimated he spent the night at Poizner's apartment about 10 times. Poizner always gave Evan cigarettes. Evan, along with his friend Stephen, spent a
third night at Poizner's apartment after Christmas of 2009, and drank another
alcoholic beverage. On this occasion,
Poizner used a belt to spank both Stephen and Evan on their bare buttocks
multiple times, joking that it was to punish them for going out and needing a
ride. Evan laughed, though Evan did not
want Poizner to spank him.
On the
fourth night Evan spent at Poizner's apartment, Poizner massaged Evan's back underneath his shirt, and eventually
slipped his hands into Evan's pants and massaged his penis. Evan also recalled spending
the night at a hotel with Poizner and other boys on more than one
occasion. Poizner would give the boys
foot massages and once kissed Evan's foot.
Poizner
told Evan not to tell anyone about coming to his apartment and drinking or the
fact Poizner had touched him. He told Evan not to speak about his
arrest and that Evan did not have to answer questions from the police.
Testimony
of Brandon P.'s Friends
Colten
A., Deon D., Erick N., Tyler M., and Gabriel G. were Brandon's friends who all
at some point visited Poizner's apartment.
On one occasion there, Colten A. fell asleep and awoke to find a
pornographic video playing and Poizner, who was only a few inches away from
him, looking at him and Brandon. He
became concerned when he noticed most of his fly was unbuttoned though it had
been closed when he fell asleep.
While
at Poizner's apartment, Deon D. saw Poizner give Gabriel G. a kiss. Deon also observed that Poizner was always
talking about sex, gave Brandon a back massage on one occasion, and once bet
him and other friends that Brandon had a bigger penis than them.
Erick
N. smoked hookah and cigarettes given to him by Poizner at Poizner's
apartment. Poizner once massaged Erick's
feet at a hotel and on one occasion kissed him on the neck. Poizner asked Erick about masturbation and
talked about girls giving Erick oral sex while touching Erick on his thigh near
his groin, making Erick feel uncomfortable.
Poizner
offered Gabriel G. cigarettes and offered to show him and others pornographic
videos. When allegations against Poizner
surfaced, he called Gabriel and discouraged him from telling anyone he had gone
to Poizner's apartment, and told him to come up with a "really good
alibi." According to Gabriel,
Poizner claimed Brandon's father was trying to make false accusations. He also discouraged Gabriel from saying
anything to police.
Testimony
of James A.
In
November of 2005, James A., who had turned 18 years old the month before, was
stationed in the military in San Diego, and met Poizner when Poizner offered to
give him a ride back to his base. They
exchanged numbers and James A. called Poizner to meet and "hang
out." Eventually, they ended up at
Poizner's house where James A. drank alcohol and they watched movies. After the first visit, James A. spent several
nights at Poizner's house drinking and watching pornographic movies. James A. slept on the couch in the living
room and Poizner slept in his bedroom.
On one occasion, Poizner gave James A. a back massage. On another occasion while they were watching
pornography, Poizner, who had told James A. he was bisexual, gave James A. a
"weird look," causing James A. to feel awkward. James A. asked to be taken back to his ship
because he did not know what Poizner was planning on doing.
Evidence
of Poizner's Journal Entries
Before
trial, the court considered the People's motion to admit a number of writings
found in Poizner's home, including journal entries Poizner admitted writing
describing his actions on different occasions with respect to two individuals
identified as "James" and "Homeboy." The trial court heard extensive argument
concerning the writings and excluded some as reflecting dissimilar conduct that
was highly prejudicial. However,
expressly conducting a section 352 analysis and inferring that the entry about
"James" referred to James A., the court concluded that the two
journal entries regarding James and Homeboy reflected recent conduct—including
fondling, spanking, and showing the subjects pornography at Poizner's house—that
was sufficiently similar to the charged misconduct to give them a high degree
of relevance on the issues of Poizner's propensity and intent, as well as
corroborating the victims' testimony.
At
trial, the journal entries were read into evidence by a prosecution
investigator. The entry concerning
"James" began, "Dear James," then Poizner wrote that he had
fondled James while he was sleeping, he had apologized to James about it but
lied about why he did it, he was working through his " 'sexual acting out
through S.C.A. and the 10th Step,' " and offered to "make things
right." The reverse side of the
writing stated: " '10th Step. Last night I fondled this guy James while he
was sleeping on my couch. He had nowhere
else to go. I decided to do it. Not . . . it would affect him or not [
He woke up startled.' " In
the Homeboy entry, Poizner described various sexual acts he and Homeboy had
engaged in, including oral copulation, masturbation and spanking, at times
while watching pornography. Poizner
wrote that he was Homeboy's AA sponsor when Homeboy was 17 years old, and that
he had to personally observe Homeboy's drug testing, which necessitated
watching him urinate. Poizner described
fantasizing about Homeboy's penis and orally copulating him. Poizner also described how, on the night of
Homeboy's 18th birthday, he came to Poizner's house where Poizner massaged him
over his genital area and on his buttocks, and with his consent, spanked him on
his bare buttocks " 'for his birthday. . . .' " Poizner wrote that he recalled "
'possibly smacking [Homeboy's] ass a couple of times before, jokingly, before
he was 18, I think once.' "
Jury
Instructions as to Journal Entries, Corpus Delicti, Prior Crimes and Other Acts
and Admissions
The
trial court instructed the jury with regard to Poizner's writings and on corpus
delicti, as follows: "You have
heard evidence that the defendant made oral and written statements before the
trial. You must decide whether the
defendant made any of these statements, in whole or in part. If you decide that the defendant made such
statements, consider the statements, along with all the other evidence, in
reaching your verdict. It is up to you
to decide how much importance to give to the statements. Consider with caution any statement made by
the defendant tending to show his guilt unless the statement was written or
otherwise recorded. [¶] The defendant may not be convicted of any
crime based on his out-of-court statements alone. This is the corpus delicti rule. You may only rely on the defendant's
out-of-court statements to convict him if you conclude that other evidence
shows that the charged crime was committed.
[¶] That other evidence may be
slight and need only be enough to support a reasonable inference that a crime
was committed. The identity of the
person who committed the crime and the degree of the crime may be proved by the
defendant's statements alone."
The
trial court also instructed the jury regarding the People's evidence of other
charged and uncharged sex offenses, and gave a limiting instruction as to
Poizner's consensual sexual conduct and sexual preference. As read to the jury, the instructions,
consisting in part of a modified version of CALCRIM No. 1191, provided:
"The
People presented evidence in this case that the defendant committed sexual
offenses not charged in this case. This
refers to the defendant's writings:
'Dear James,' specifically unzipping the victim's pants and fondling him
while he was asleep, and 'Homeboy,' specifically spanking on the bare buttocks,
if determined to be accomplished for the purpose of deriving sexual pleasure
from the infliction of physical pain.
"In
addition, sexual offense crimes against three alleged victims are charged in
this case. These are Counts 1 through 6,
which relate to Austin G.; 9 through 14, which related to Brandon B.; and 22
and 23, relating to Evan W. These crimes
are defined for you in these instructions.
"In
evaluating whether the defendant is guilty or not guilty of each charged sex
offense . . . you may consider this evidence, the above-described charged and
uncharged offenses, only if the People have proved beyond a reasonable doubt
that the defendant in fact committed any or all of those offenses. If the People have not met this burden of
proof as to any of these offenses, you must disregard the evidence relating to
that offense entirely in your consideration of any other charged crime.
"If
you decide that a sexual offense charged or uncharged, was committed, you may,
but are not required to, conclude from that evidence that the defendant was
disposed or inclined to commit sexual offenses, and based on that decision,
also conclude that the defendant was likely to commit the charged sex offenses
here.
"If
you conclude that the defendant committed any or all of the charged or
uncharged sexual offenses, that conclusion is only one factor to consider along
with all the other evidence. It is not
sufficient by itself to prove that the defendant is guilty of each count. The People must still prove each element of
each charged offense beyond a reasonable doubt.
"Proof
beyond a reasonable doubt has already been defined for you.
"You
may also consider this evidence for the purpose of: deciding whether or not the defendant acted
with the intent of arousing, appealing to, or gratifying the lust, passions, or
sexual desires of himself or the child as alleged in Counts 1 through 6, 9
through 14, 22 and 23—those are the sexual offenses and the specific intent
required; for deciding whether or not the defendant had a plan or scheme to
commit the above counts; and in evaluating the credibility of witnesses.
"The
People also presented evidence that: the
defendant engaged in other sexual conduct, specifically consensual sexual activity
with another male, 'Homeboy,' after the age of 18; they presented evidence that
the defendant was in possession of pornographic videos; and evidence that the
defendant has admitted being homosexual and/or bisexual and was in possession
of a homosexual DVD case.
"You
must not consider this evidence in determining where [sic] the defendant was disposed or inclined to commit sexual
offenses. You may consider this evidence
solely for the limited purpose of:
deciding whether or not the
defendant acted with the specific intent required for the sex crimes; deciding
whether or not the defendant had a plan or scheme to commit the sex crimes; and
evaluating the credibility of witnesses."
DISCUSSION
I. Claim
of Corpus Delicti Violation
Poizner
contends the admission of the uncharged acts reflected in the writings
concerning James and Homeboy violated the corpus delicti rule and his right to
due process because there was no corresponding evidence of these acts
independent of his writings, and the jury was not instructed to determine
whether those acts were supported by any quantum of independent evidence. He argues that absent proof of the corpus
delicti, the uncharged crimes were irrelevant, not properly presented to the
jury, and could not be considered as propensity evidence.
A. Legal
Principles
"The
purpose of the corpus delicti rule is to satisfy the policy of the law that
'one will not be falsely convicted, by his or her untested words alone, of a
crime that never happened.' " (People
v. Miranda (2008) 161 Cal.App.4th 98, 107; see also People v. Alvarez, supra, 27 Cal.4th at p.
1169.) The rule requires the prosecution
to "prove the corpus delicti, or the body of the crime itself—i.e., the
fact of injury, loss, or harm, and the existence of a criminal agency as its
cause. In California, it has
traditionally been held, the prosecution cannot satisfy this burden by relying
statements, confessions, or admissions of the defendant." (Alvarez, at pp. 1168-1169.)
However, " '[t]he amount of independent proof of a crime required
for this purpose is quite small [and has been] described . . . as
"slight" [citation] or "minimal." ' " (People
v. Herrera (2006) 136 Cal.App.4th 1191, 1200, quoting People v. Jones (1998) 17 Cal.4th 279, 301.) Such proof may be circumstantial and need not
be beyond a reasonable doubt; it is sufficient if it permits an inference of
criminal conduct, even if a noncriminal explanation is also plausible. (Alvarez,
27 Cal.4th at p. 1171.) "[O]nce the necessarily quantum of
independent evidence is present, the defendant's extrajudicial statements may
then be considered for their full value to strengthen the case on all
issues." (Ibid.)
B.
As
Poizner acknowledges, the California Supreme Court has not squarely decided
whether the corpus delicti rule applies to evidence admissible under sections
1101, subdivision (b) or 1108. (See People
v. Clark (1992) 3 Cal.4th 41, 124 [addressing evidence admitted under
section 1101, subdivision (b): "It
is not clear that the corpus delicti rule applies to other crimes evidence
offered solely to prove facts such as motive, opportunity, intent, or identity,
or for impeachment"; declining to decide the issue because the corpus was
independently established]; see also People v. Horning, supra, 34 Cal.4th at p. 899
[noting Clark's statement of
uncertainty].) In People v. Martinez (1996) 51 Cal.App.4th 537, this court
acknowledged the high court had left the question unresolved, and considered
whether the corpus delicti rule applied to uncharged bad acts introduced for
impeachment purposes in the guilt phase of trial. Agreeing with the observations and analysis
of the appellate court in People v. Denis (1990) 224 Cal.App.3d 563, we observed in Martinez that the defendant had relied only on dicta as the corpus
delicti rule had never been applied to evidence of other prior crimes. (Martinez,
51 Cal.App.4th at pp. 544-545.) Further,
we concluded it was reasonable that the corpus delicti rule did not apply when
a prior uncharged offense was introduced only for impeachment: "There is no requirement that the
proponent of a prior inconsistent statement prove the truth of the prior
statement since it is inconsistency itself which makes the prior statement
relevant and admissible evidence."
(Id. at p. 546.)
Poizner
maintains that regardless of whether the corpus delicti rule applies to
evidence offered for impeachment or under section 1101, it should apply to
propensity evidence admitted under section 1108, because such evidence has
historically been excluded as inherently prejudicial and provides a stronger
basis for applying the rule than other evidence for impeachment or intent and
motive. He asks us to find these circumstances
akin to the introduction of unadjudicated crimes admitted in aggravation at the
penalty phase of a capital trial, where the corpus delicti rule applies. (See People
v. Valencia (2008) 43 Cal.4th 268, 296.)
We
conclude the trial court did not err with respect to its admission of the James
and Homeboy writings. Following
"Right to Truth–in–Evidence" amendment to the California Constitution
providing that "relevant
evidence shall not
be excluded in
any
proceeding
supra, 27 Cal.4th at p. 1165.)
concluded the constitutional provision changed the aspect of the corpus delicti
rule regarding the admission of extrajudicial statements: "[I]nsofar
restricts the admissibility
of incriminatory
[article I,] section 28 [, subdivision]
(d) abrogates it." (Alvarez, at p. 1174; see
43 Cal.4th at p. 297.) The
rule's independent proof requirement to support a conviction, however, remained
undisturbed: section 28, subdivision (d) "did
corpus delicti rule
insofar as it
provides that every
conviction must
aside from or
in addition to
such statements, and
that the jury
must be so
Thus, "[a]s a result of the
first determination in Alvarez, 'there
a trial objection
to the admission
in evidence of
the defendant's out-
on
that independent proof
of the corpus
delicti is lacking.
If
defendant's extrajudicial
introduced in his
or her trial
whether the prosecution
has already provided,
or promises to
provide, independent
that a criminal
act was committed.'
[Citation.] However, as a result of the second determination,
the jury must be instructed 'that no
person may be
convicted absent evidence
of the crime
or her out-
also, the defendant may, on appeal, 'attack
the prosecution's independent
showing.' " (People v. Powers-Monachello (2010) 189 Cal.App.4th 400, 407-408.)
Here,
Poizner's writings, which reflected either nonconsensual sexual touching of
James A. or sexual activity with a 17-year-old, were otherwise admissible under
section 1108 as circumstantially relevant to the issue of his disposition or
propensity to commit sex offenses. (
1007, 1012.) Accordingly, the corpus
delicti rule no longer prevented admission of the writings into evidence. (See People
v. Valencia, supra, 43 Cal.4th at
p. 297.) Under People v. Alvarez, supra,
27 Cal.4th 1161, notwithstanding Proposition 8, the court must "instruct
the jury that [the defendant's extrajudicial] statements cannot be the sole
proof the crime occurred." (
this case. Not only was the jury
correctly instructed with a proper corpus delicti instruction, but the court
also appropriately instructed the jury that the uncharged offenses were not
sufficient by themselves to prove beyond a reasonable doubt that Poizner
committed the charged offenses. (
We
otherwise decline to apply the corpus delicti rule in the context of prior
uncharged offenses offered under section 1108 for purposes of inferring
propensity. A trial court must instruct,
sua sponte, on corpus delicti where a defendant's extrajudicial admission of
guilt would otherwise qualify as substantial evidence to support a conviction. (See People
v. Najera (2008) 43 Cal.4th 1132, 1137.)
The circumstances presented here do not implicate the purpose of the
rule, which is to require sufficient independent corroboration of the
defendant's confessions to crimes for
which he is on trial. "As one
court explained, 'Today's judicial retention of the [corpus delicti] rule
reflects the continued fear that confessions may be the result of either
improper police activity or the mental instability of the accused, and the
recognition that juries are likely to accept confessions uncritically.' [Citation.]
[¶] Viewed with this in mind, the
low threshold that must be met before a defendant's own statements can be admitted
against him makes sense; so long as there is some indication that the charged
crime actually happened, we are satisfied that the accused is not admitting to
a crime that never occurred." (People
v. Jennings (1991) 53 Cal.3d 334, 368.)
Poizner was not charged with crimes against James A. and Homeboy, there
was no danger he would be convicted of such crimes, and those uncharged
offenses could not serve as substantial evidence to support Poizner's
convictions. We hold the trial court was
not required to instruct the jury that the prosecution was required to present
independent proof of the acts described in Poizner's writings, which were
admitted for the limited purpose of permitting the jury to infer Poizner's
propensity to commit sex offenses.
Finally,
even if error occurred, it would not warrant reversal of the judgment. We assess prejudice relating to the corpus
delicti rule under the state law standard of People v. Watson (1956) 46 Cal.2d 818. (See People
v. Fuiava (2012) 53 Cal.4th 622, 719, fn. 36 [assessing claim of corpus
delicti error in penalty phase under state law standard].) "Error
is considered harmless,
and thus no
if there appears
no reasonable probability
the jury would
have reached a
result more favorable
to the defendant
had the instruction
been given." (People
v. Alvarez, supra, 27 Cal.4th at
p. 1181.) Here, each victim testified in
detail about the acts committed against him by Poizner, and the prosecution
bolstered Austin's testimony with the pretext call with Poizner's incriminating
statements. Further, despite hearing the
evidence of Poizner's writings, the jury convicted him of lesser included
offenses on two of the section 288 charges as to Brandon P. Thus, the verdicts themselves reveal that the
evidence did not have an overly prejudicial impact. In sum, Poizner cannot show prejudice, even
assuming error in the jury instructions.
II. Consensual
Spanking as Section 1108 Propensity Evidence
Poizner
contends the trial court denied him due process and a fair trial by admitting
his writings describing the acts of spanking Homeboy, and then instructing the
jury it could consider those acts as criminal sexual offenses so as to draw an
inference of propensity to engage in sexual offenses. Poizner maintains the act
of spanking Homeboy on his 18th birthday
is not a qualifying offense under section 1108, and the error resulted in
substantial prejudice in that he was "both wrongly branded a criminal
based on the Homeboy spanking acts, and the jury was permitted to conclude if
he committed that 'offense' he committed the charged offenses . . .
."
The
People concede the consensual spanking of Homeboy on his 18th birthday does not
qualify as a sexual offense within the meaning of section 1108. Stating the trial court's instruction was
unclear as to which acts of spanking qualified under section 1108, they agree
the trial court erred to the extent it instructed the jury that those acts
could
be considered as
acts was nevertheless admissible under
section 1101 to prove intent, common plan or scheme, or any of the other
permissible inferences under that statute, and maintain
the instructional error was harmless
because the evidence of Poizner's guilt—via the victims' testimony and
Poizner's own admissions in his pretext call to Austin—was overwhelming. The People argue that there is no reasonable
probability Poizner would have achieved a more favorable result absent the
error.
We
assess de novo whether jury instructions correctly state the law. (People
v. Posey (2004) 32 Cal.4th 193, 218.) In reviewing a claim that the
court's instructions were
misleading, our inquiry is whether there is a reasonable likelihood the jury misunderstood and misapplied the instructions. (People v. Mayfield (1997) 14 Cal.4th
668, 777.) We consider the instructions as a whole, and we assume the jurors use
intelligence and common sense when applying and correlating the instructions. (People v. Ramos (2008) 163
Cal.App.4th 1082, 1088; People v. Bragg (2008) 161 Cal.App.4th 1385,
1396.) In a noncapital case,
instructional error is reviewed for prejudice under People v. Watson, supra,
46 Cal.2d 818. (See People v. Gamache (2010) 48 Cal.4th 347, 376; People v.
Breverman (1998) 19 Cal.4th 142, 178.) Under that standard, the
conviction may be reversed only if " 'after an examination of the entire
cause, including the evidence' (Cal. Const., art. VI, § 13), it appears
'reasonably probable' the defendant would have obtained a more favorable
outcome had the error not occurred."
(Breverman, at p. 178.)
We
agree the instructional error, if any, is harmless. Though the propensity instruction referred
generally to Poizner's spanking of Homeboy as one of the uncharged sexual
offenses without distinguishing Homeboy's age, directly afterwards the jury was
separately instructed concerning Poizner's consensual sexual activity with
Homeboy after his 18th birthday, and specifically told to exclude that evidence
from its consideration of Poizner's propensity to commit sex offenses. Thus, at most, the jury instructions were
arguably contradictory and potentially misleading. However, assessing the instructions as a
whole as we must (People v. Ramos,
conclude they were reasonably clear that Poizner's consensual sexual activity
with Homeboy after he turned 18 years old was not relevant to Poizner's
disposition or inclination to commit the charged crimes, and the instructions
appropriately apprised the jury that that particular consensual activity was
relevant to other issues such as specific intent, plan or scheme, and witness
credibility.
Further,
review
under Watson " 'focuses
.' " (
556.) Poizner does not
challenge the sufficiency of the evidence of his convictions, and the jury
plainly accepted the victims' testimony as to Poizner's conduct. Additionally, as stated, Austin D.'s
testimony was corroborated by the pretext call introduced into evidence. Other boys corroborated some of the conduct
between Poizner and Brandon. Given the
ample evidence supporting Poizner's convictions, and absent any indication the
jury was confused or uncertain about Poizner's guilt, we conclude Poizner
cannot demonstrate prejudice, even if he could establish error.
III. Claim
of Instructional Error Regarding Use of Charged Offenses As Evidence of
Propensity
Poizner
contends the trial court prejudicially erred by instructing the jury that
they could consider the charged crimes in
deciding whether he had a propensity to commit other charged offenses. Urging us to follow People v. Quintanilla (2005) 132 Cal.App.4th 572 (
1108 does not authorize the use of currently charged offenses to convict a
defendant of other charged crimes, and to use such charged offenses in this
manner "interferes with the trial court's right to exclude the propensity
evidence under section 352, the linchpin which saves this statute from being
violative of due process." Poizner
argues that as a result, the instruction reduced the People's burden of proof,
denied him his right to a jury trial, and violated his right to due
process. He notes the issue at
hand—whether jurors could consider charged offenses as propensity evidence
under section 1108—was on review in the California Supreme Court.
Following
the completion of briefing in this matter, the high court in
1152 resolved the question in the People's favor. In Villatoro,
the court observed that section 1108 by its terms did not distinguish
between charged or uncharged sexual
offenses, but refers to " 'another sexual
offense
or offenses.' " (Id.
at p. 1160.) The court stated,
"This definition of 'another' contains no limitation, temporal or
otherwise, to suggest that section 1108 covers only offenses other than those
for which the defendant is currently on trial." (Id.
at p. 1161.) Nor did the statute's
qualifying language concerning section 352 mandate that the sexual offense be
uncharged. (Ibid.) Disapproving
Villatoro concluded that nothing in
the language or legislative history restricted the application of section 1108
to uncharged offenses. (
5, 1164.)
The
court in Villatoro proceeded to consider
whether the trial court had erred by instructing the jury with a modified
version of CALCRIM No. 1191 similar to the instruction given in the present
case,
and the defendant's argument that the modified instruction failed to clearly
designate the standard of proof that applied to the charged offenses. (People
v. Villatoro, supra, 54 Cal.4th
at p. 1167.) The defendant in
have used any standard of proof, or none, to convict him, depriving him of the
presumption of innocence. The court
rejected these arguments, pointing out "the instruction clearly told the
jury that all offenses must be proven beyond a reasonable doubt, even those
used to draw an inference of propensity.
Thus, there was no risk the jury would apply an impermissibly low
standard of proof." (
instructed the jury with CALCRIM No. 220, which "defines the reasonable
doubt standard and reiterates that the defendant is presumed innocent; it also
explains that only proof beyond a reasonable doubt will overcome that
presumption." (Ibid.) Thus, the modified
instruction did not impermissibly lower the standard of proof or otherwise
interfere with defendant's presumption of innocence. (Ibid.)
Finally,
the court rejected the defendant's argument that the trial court in that case
had not undertaken a section 352 analysis before giving the modified
instruction. (People v. Villatoro, supra,
54 Cal.4th at p. 1168.) It held the
record reflected the trial court implicitly conducted such an analysis as it
properly could, but that any error in its failure to do so was harmless in view
of the striking similarity of the various prior offenses and their high
probative value, which substantially outweighed any prejudice. (Id.
at pp. 1168-1169.)
arguments as to the instruction's impact on the People's burden of proof, on
which his due process and jury trial claims are based. Moreover, it is plain from the record here
that the trial court, as in Villatoro,
implicitly if not expressly made a section 352 analysis of the prior offenses
before permitting them to be used as evidence under section 1108. In reviewing this particular jury
instruction, the court stated in part:
"The discussion was that 1108 only applies to other uncharged
crimes and [People v. Wilson (2008)
166 Cal.App.4th 1034] talks about the fact that it applies as well to other
charged crimes. The jury can
appropriately use those as propensity evidence under 1108 when they're
evaluating each of those crimes essentially if the crimes are cross-admissible,
if they're relevant, if they're admissible under 1108, and I believe that I've already made that determination when we first
argued the case for consolidation, . . . each [of the crimes] were similar
enough regarding the age of the boys, the circumstances of the molests, the
type of touching, that they would be cross-admissible." (Italics added.) The record reflects an adequate section 352
weighing process, not mere reliance on People
v. Wilson, supra, 166 Cal.App.4th
1034, to admit the charged crimes as evidence.
IV. Admission
of Evidence of Poizner's Sexual Orientation and Possession of Pornographic
Material
Poizner
contends the trial court violated his right to due process and a fair trial by
admitting evidence that he had told Brandon's mother he was gay, as well as
evidence he possessed a pornographic DVD cover depicting graphic, sexually
explicit acts (oral copulation) between youthful-looking adult men and containing
a brief but prurient description on the back of the cover.
the DVD jacket were logically relevant to the crimes of lewd conduct with
children, and they were not relevant under section 1101 to prove intent, common
plan or scheme, or to evaluate witness credibility. Poizner maintains that to the extent the
evidence had some degree of relevance, the court abused its discretion by
failing to exclude it as unduly prejudicial under section 352. According to Poizner, these errors, combined
with the court's instruction to the jury that it could consider this evidence
to determine his intent, plan or scheme to commit the offenses or evaluate
witness credibility, requires reversal.
A.
Section
350 states: "No evidence is
admissible except relevant evidence."
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." (§
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[.]' " (People v. Freeman (1994) 8 Cal.4th
450, 491.) Such material facts include identity, intent or motive. (People
v. Bivert (2011) 52 Cal.4th 96, 116.)
The trial court however, has discretion to exclude relevant evidence if
its probative value is substantially outweighed by the probability that its
admission will necessitate undue consumption of time or create substantial
danger of undue prejudice, of confusing the issues, or of misleading the
jury. (§ 352.) Prejudice
in this respect 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.' " (People v. Heard (2003) 31 Cal.4th
946, 976.) The prejudice that section
352 is designed to avoid " 'is . . . "prejudging" a person or
cause on the basis of extraneous factors.' " (People
v. Zapien (1993) 4 Cal.4th 929, 958.)
"Trial
courts enjoy ' "broad discretion" ' in deciding whether the
probability of a substantial danger of prejudice substantially outweighs
probative value. [Citations.]
A trial court's exercise of discretion '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
v. Holford (2012) 203 Cal.App.4th 155, 167-168.)
"In
general, 'evidence of a person's character or a trait of his or her character
(whether in the form of an opinion, evidence of reputation, or evidence of specific
instances of his or her conduct) is inadmissible when offered to prove his or
her conduct on a specified occasion.'
[Citation.] Such evidence is
admissible, however, 'when relevant to prove some fact (such as motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake
or accident, or whether a defendant in a prosecution for an unlawful sexual act
or attempted unlawful sexual act did not reasonably and in good faith believe
that the victim consented) other than his or her disposition to commit such an
act.' " (People v. Page (2008) 44 Cal.4th 1, 40, quoting § 1101, subds.
(a), (b).)
B.
Before
trial, Poizner moved in limine to exclude evidence of his sexual orientation,
specifically evidence that he had told the boys or a parent he was gay or
bisexual. The prosecutor argued the
evidence was relevant to Poizner's intent, sexual interest and motivation to be
around the boys, and also because he had used that fact about himself to gain
the parents' trust. Though the trial
court observed there was potential prejudice, it found there was substantial
relevance to the evidence that Poizner had a sexual interest in people of the
same sex, and was also part of Poizner's grooming behavior. In part, it reasoned, "I totally agree
with the label of being homosexual is potentially prejudicial. And as I said, in the vast majority of cases,
I think, would have absolutely no relevance.
I also think that there is a potential for jurors to equate
homosexuality with pedophilia and that's—I mean, I would be happy to allow you
to put on an expert to say that that's absolutely not true. But I also see the potential prejudice. There is no question. I also see a very substantial relevance. I mean, talk to anybody on the street and you
ask them if they think it's relevant, and if a man is accused of molesting
boys, whether or not he's homosexual or heterosexual, they will tell you, yes,
it's relevant."
Accordingly,
at trial, Austin testified that on one occasion after Poizner took him home,
Poizner sat down and introduced himself to Austin's mother, telling her, "
'I don't want you to hear from anybody else, but I'm gay, but I'm into stable,
steady relationships. And I'm not into,
like, the teenagers or the boys, or anything.' "
There
is no question that evidence of a defendant's sexual preference can be highly
prejudicial if it is irrelevant to the charged crime. (U.S.
v. Yazzie (9th Cir. 1995) 59 F.3d 807, 813; see U.S. v. Gillespie (9th Cir. 1988) 852 F.2d 475, 478-479 [holding
evidence of homosexuality is extremely prejudicial and trial court erred in
admitting evidence of defendant's homosexual relationship as it neither proved
nor disproved that the appellant committed child molestation; reversing
conviction for transportation of a person in interstate commerce for illegal
sexual purposes]; Cohn v. Papke (9th
Cir. 1981) 655 F.2d 191, 194 [possibility of prejudicial effect of evidence of
homosexuality is great since jury may be influenced by biases and stereotypes;
evidence of prior homosexual experiences of plaintiff in civil rights case
against police had minimal probative value regarding whether he solicited act
of prostitution]; U.S. v. Birrell (9th
Cir. 1970) 421 F.2d 665, 666 [reversing a conviction for interstate
transportation of a stolen motor vehicle due to the prosecutor's statements
urging the jury to convict the defendant and not "turn him loose on
society" because he was homosexual]; State
v. Bates (1993) 507 N.W.2d 847, 850, 852 [evidence of defendant's sexual
orientation was improper character evidence; whether the defendant was sexually
attracted to adult men was irrelevant to whether he was sexually interested in
his 8 and 12-year-old victims].) The
Ohio Supreme Court has said: "[T]he
modern understanding of pedophilia is that it exists wholly independently from
homosexuality. The existence or absence
of one neither establishes nor disproves the other. 'The belief that homosexuals are attracted to
prepubescent children is a baseless stereotype.' . . . Thus, evidence of homosexuality is not
pedophilia." (State v. Crotts (Ohio 2004) 820 N.E.2d 302, 306.) However, exclusion is required only where the
evidence's unfair prejudice substantially
outweighs its probative value.
(§ 352; U.S. v. Yazzie,
59 F.3d at pp. 811-812.)
We
perceive no manifest abuse of discretion in the trial court's admission of this
evidence. In this case, Poizner's
homosexuality was not collateral to the issues.
Poizner's remark to Austin's mother about his sexual preference and
assurance he was not attracted to teenagers or boys was part of Austin's trial
testimony, and it tended to show Poizner's plan or scheme to reassure parents
and gain access to the boys while concealing his true intentions. This is a permissible use of such evidence,
no matter how the evidence may reflect on the defendant. (§ 1101, subd. (b); People v. Mullen (1953) 115 Cal.App.2d 340, 342-343 [evidence of
homosexual tendencies of the male defendant was relevant to charge of assault,
where prosecution's theory at trial was that the male victim of the assault was
interfering with the defendant's relationship with another man];
Cal.App.2d 207, 214 [citing Mullen
for proposition that evidence of
homosexual tendencies of the defendant was relevant to show motive].)
We
need not analyze further whether the court's section 352 ruling on this point
was an abuse of discretion, because even assuming error, under the
circumstances, the introduction of this evidence was harmless. The prosecutor did not use the evidence of
Poizner's homosexuality in a repeated or inflammatory way. At one point in closing arguments, she
referred briefly to Poizner's homosexuality in telling the jurors—appropriately—they
could consider that and other circumstances to decide whether Poizner's
touchings were sexually motivated.
name="_ftnref6" title="">[6] At another point she recounted the testimony
of Poizner's female roommate, who said Poizner had heterosexual pornography and
she thought it "a little odd because he's gay." At no point did the prosecutor make remarks
suggesting that Poizner's sexual preference disposed him to a sexual desire for
adolescent boys. Indeed, as we have set
out above, the trial court gave a curative instruction to the jury that it was
not to consider Poizner's sexual preference on the question of his disposition
or inclination to commit the charged offenses.
We presume the jurors followed that instruction absent any contrary
indication. (People v. Gray (2005) 37 Cal.4th 168, 217.) And the trial evidence concerning Poizner's
sexual preference was no more inflammatory than the evidence from the victims
of the lewd touchings.
Further,
as we have already observed, the evidence against Poizner is abundant and strong. He has not challenged the sufficiency of the
evidence of his convictions, and the victims testified directly, specifically
and unequivocally about the offenses.
None of their testimony was physically impossible or inherently lacking
in credibility, and Austin's was corroborated by Poizner's own incriminating
admissions. The victims' testimony,
believed by the jury, was sufficient to exclude any chance that the admission
of the evidence contributed to Poizner's convictions. Accordingly, under the state law
evidence we cannot say it is reasonably probable the verdict would have been
more favorable to Poizner absent any assumed error. (People v. Partida (2005) 37 Cal.4th
428, 439.) Nor can we say federal due process
was offended. Given the limited use of
the evidence and brief trial references to it, admission of the evidence did
not render the trial fundamentally unfair.
(Ibid.)
C.
As
for its decision to admit the DVD cover found in Poizner's possession, the
trial court reasoned in part: "I do
recognize that there is some prejudice to seeing the pictures. They're not particularly pleasant pictures. [¶]
But there's no question that the defense in this case has been to
challenge the credibility of each of these boys, that they're making this up
for all sorts of various reasons, to even challenge the credibility of Mr.
[A.], and that if the defendant's a homosexual, he's a homosexual and
interested in adults, not children, and this video, his possession of it,
appears to support an inference that he does have a sexual interest in
young-looking men. They may be adult
men, but they look like teenage boys.
[¶] How they look—I don't
particularly like the idea of the jury's seeing the sex acts, but looking at
the age of the boys in this video or on the cover of the video is unfortunately
very probative."
Cal.4th 1, the California Supreme Court reaffirmed the potential relevance of
evidence of a defendant's possession of sexual images on the issue of
intent. It explained: "In
People v. Memro (1995) 11 Cal.4th 786 . . . (Memro) [abrogated on
other grounds in People v. McKinnon (2011)
52 Cal.4th 610, 639, fn. 18], the defendant was charged with first degree
felony murder based
| Description | A jury convicted Robert Andrew Poizner of committing lewd and lascivious acts with a child (Pen. Code, § 288, subd. (a), counts 1-6, involving victim Austin G. and counts 22-23, involving victim Evan W.); committing lewd acts upon a 14 to 15-year-old child (Pen. Code, § 288, subd. (c)(1), counts 12 & 14, involving Brandon P.); exhibiting harmful matter to a minor (Pen. Code, § 288.2, subd. (a), counts 7, 8 & 15); distributing or exhibiting harmful matter to a child (Pen. Code, § 313.1, subd. (a), counts 16, 19 & 27); contributing to the delinquency of a minor (Pen. Code, § 272, subd. (a)(1), counts 17, 20, & 21); dissuading a witness (Pen. Code, § 136.1, subd. (b)(1), counts 18 & 25); and disobeying a court order (Pen. Code, § 166, subd. (a)(4), counts 26 & 28). The jury acquitted Poizner of two counts of lewd and lascivious acts with a minor as to Brandon P. (counts 9 & 10) and found him guilty of the lesser included offense of sexual battery (Pen. Code, § 242; counts 11 & 13). As to counts 1-6, 22 and 23, the jury found true allegations that Poizner committed his crimes on multiple victims. As to counts 2, 5 and 22, it found true allegations that Poizner engaged in substantial sexual conduct with a child under the age of 14, and as to counts 2 and 5, that he used obscene matter. (Pen. Code, § 1203.066, subds. (a)(8) & (9).) It found true allegations that Poizner committed the dissuasion offenses of counts 18 and 25 while on bail. (Pen. Code, § 12022.1, subd. (b).) The trial court sentenced Poizner to an indeterminate term of 75 years to life plus a consecutive determinate term of seven years.[1] |
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