P. v. Pubill

Filed 10/24/06 P. v. Pubill CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Orlando Pubill appeals his conviction for multiple counts of lewd conduct against two minors. He contends that instructing the jury with the 2002 version of CALJIC No. 2.50.01 permitted the jury to convict him of the charged offenses based on no more than a finding by a preponderance of the evidence that he committed other sex offenses, and that extending the statute of limitations under Penal Code section 803 subdivision (f)[1] violated the ex post facto clause of the federal Constitution. We find these contentions meritless and shall affirm the judgment.

Factual and Procedural History

On August 10, 2004, defendant was charged by information with five counts of lewd conduct on a child under the age of 16, being at least 10 years older than the victim (Pen. Code, § 288, subds. (a), (c)(1)), and five counts of penetration of the genital or anal openings of a child with a foreign object (Pen. Code, § 289, subd. (i)). The information alleged that some of the offenses were committed against one minor and some against another. All of the offenses were alleged to have occurred in 1996, so that the normal limitation period for those offenses had expired, but it was alleged that the victims reported the offenses to a law enforcement agency on August 14, 2003, extending the court’s jurisdiction for one year pursuant to Penal Code section 803, subdivision (f)(1). The information also alleged a prior conviction for the violation of Penal Code section 288, subdivision (a). (Pen. Code, § 1170.12, subd. (c)(1).)

Rebekah “Doe,” and Genevieve “Doe,” the minor victims, were born in June 1980 and April 1979, respectively. Alicia, Rebekah’s older sister by 10 years, married defendant in 1992 and a year later the couple moved into a small two bedroom house in San Bruno. Thereafter Rebekah began visiting the couple at their San Bruno residence, sometimes staying overnight and sleeping on the couch.

Rebekah testified to a number of incidents of sexual abuse beginning around February 1996 when she was approximately 15 years old. The first such incident occurred sometime in February when Rebekah and defendant were lying together in the entertainment room playing video games. Defendant would sometimes offer back rubs to Alicia and Rebekah and on this occasion the massage progressed to Rebekah’s entire body. Rebekah stated that during the massage defendant rubbed her breasts “in a circular motion” and “his hands slipped in between [her] pants and [her] underwear, and he stroked [her] vagina.” Defendant inserted his finger into her vagina and “stroked . . . internally.”

After the first incident, defendant molested Rebekah “any opportunity he got . . . any time [Alicia] was asleep and we were still up.” Rebekah testified that between February and June of 1996, the massages occurred frequently. Defendant digitally penetrated her vagina on other occasions as well-when they were “cuddling” together in the master bedroom while Alicia was napping, while watching a movie at a friend’s house, and once when defendant found a hole in the crotch on her sweat pants. During these incidents defendant sometimes referred to Rebekah as his “second wife [or] his concubine.” Rebekah did not file a police report regarding the molestations until August 2003.

Genevieve testified that in August 1996, when she was 17, she began sleeping at defendant’s San Bruno home so she and Alicia could conduct door-to-door canvassing for their church group. The first incident of abuse occurred when defendant suggested the three take a nap together in the couple’s bedroom. At one point during the nap Genevieve awoke and found defendant very close to her. Later, defendant began giving Genevieve massages, which made her feel “scared and uncomfortable.” One night when Genevieve was lying on the couch after Alicia had gone to bed, defendant rubbed his hand up her leg and touched her vaginal area. When Genevieve pulled away, defendant stopped and went to bed. The next morning, Genevieve packed her belongings and left.

Amy “Doe,” the same age as Rebekah, testified about the circumstances of defendant’s conduct with her in 1994, which resulted in his pleading guilty to one charge of lewd conduct. Amy testified that in 1993, when she was 12 years old, Alicia and defendant befriended her and she began spending nights at defendant’s home during school holidays. Amy testified to five instances of defendant’s improper sexual conduct with her in 1993 and 1994.

Prior to trial, the prosecutor moved to admit as propensity evidence under Evidence Code section 1108 evidence of the six originally-charged sex acts against Amy. The court admitted evidence of five of the instances of prior sexual misconduct with Amy but found that one of the prior instances was dissimilar and excluded it.

The court’s instructions to the jury included CALJIC Nos. 2.01 [sufficiency of circumstantial evidence], 2.09 [evidence limited as to purpose], 2.50 [evidence of other crimes], 2.50.1 [evidence of other crimes by the defendant proved by a preponderance of the evidence], 2.50.2 [definition of preponderance of the evidence], 2.50.01 [evidence of other sexual offense; 2002 rev.], and 2.90 [presumption of innocence, reasonable doubt, and burden of proof]. The instruction which defendant challenges on appeal, the 2002 revised version of CALJIC No. 2.50.01, was modified to read as follows: “Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense on one or more occasions other than that charged in the case. ‘Sexual offense’ means a crime under the laws of the state or of the United States that involves any of the following: A. Any conduct made criminal by Penal Code sections 288(c)(1) or 289(i). The elements of these crimes are set forth elsewhere in these instructions; or B. Contact without consent between any part of the defendant’s body or an object and the genital or anus of another person. If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime or crimes of which he is accused. However, if you find by a preponderance of the evidence that the defendant committed prior sexual offenses, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime. Unless otherwise instructed, you must not consider this evidence for any other purpose.”

The jury found defendant guilty of all of the charged offenses and the court found the strike allegation to be true. The court sentenced defendant to eight years in prison. Defendant timely filed a notice of appeal.

Discussion

1. The Revised Propensity Instruction is a Correct Statement of the Law

Defendant contends the instruction that was given concerning the consideration of prior sexual offenses, essentially the 2002 version of CALJIC No. 2.50.01, is constitutionally defective because it permits conviction “based solely on proof of the alleged prior sex-related acts or crimes” and, what is more, the jury need find the prior offenses by only a preponderance of the evidence. According to defendant, “CALJIC No. 2.50.01 is replete with qualifying, conflicting and cautionary language that on the one hand tells the jury i[t] can use the prior sex evidence to prove disposition to commit the charged offense, and then, . . . on the other hand, it tells the jury that it may not do so. By some undefined and unknown psychological process the jury is suppose[d] to untangle all the conflicting language in CALJIC No. 2.50.01, and in the accompanying instructions in CALJIC Nos. 2.50, 2.50.2, and 2.50.1, and reach a guilty verdict that is valid under federal constitutional standards.”

In People v. Reliford (2003) 29 Cal.4th 1007, 1009 (Reliford), the Supreme Court rejected these contentions and held that “the 1999 version of CALJIC No. 2.50.01 correctly states the law.” The court recognized that the 1999 version could be improved and observed that the deletion of one sentence and the addition of another, as modified in the 2002 revision, “is an improvement.” (Reliford, supra, at p. 1016.) The newly added sentence which the Supreme Court considered to improve the instruction is included in the penultimate paragraph: “ ‘If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime.’ “ (Ibid.) The court noted that this revision “provides additional guidance on the permissible use of the other-acts evidence and reminds the jury of the standard of proof for a conviction of the charged offenses.” (Ibid.)

Defendant asserts, “Perhaps if the CALJIC authors had limited the changes to the new version of CALJIC No. 2.50.01 suggest[ed] by the Reliford opinion, the instruction might have come closer to passing constitutional muster,” but that the inclusion of the sentence that precedes the sentence just quoted reinserts the confusion rendering the instruction unconstitutional. The sentence assertedly creating the problem, the first sentence of the same paragraph, reads: “However, if you find by a preponderance of the evidence that the defendant committed prior sexual offenses, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes.” We have difficulty understanding defendant’s point. This sentence has always been included in the 2002 revision upon which the Supreme Court in Reliford commented favorably. Considered alone or in the context of the entire instruction, we see nothing misleading or confusing about the sentence. The sentence emphasizes, as the Reliford court noted, citing People v. Falsetta (1999) 21 Cal.4th 903, that proof that a defendant committed prior sex crimes serves only as “relevant circumstantial evidence” and is not sufficient by itself to establish beyond a reasonable doubt that a defendant committed the charged sex offenses. (Reliford, supra, 29 Cal.4th at p. 1013.)

Following the introductory paragraph and the definition of a “sexual offense,” the first substantive portion of CALJIC No. 2.50.01 permits the jury to infer the defendant has a disposition to commit sex crimes from evidence the defendant has previously committed other sex crimes. “The inference is a reasonable one.” (Reliford, supra, 29 Cal.4th at p. 1012.) “The instruction next informs the jurors that they may-but are not required to-infer from this predisposition that the defendant was likely to commit and did commit the charged offense. This, again, is a legitimate inference.” (Id. at p. 1013.) Nowhere does the instruction tell the jury it may rest a conviction solely on evidence of prior offenses and the balance of the instruction, on which defendant’s argument focuses, says exactly the opposite. This instruction “could not have been interpreted to authorize a guilty verdict based solely on proof of uncharged conduct.” (Ibid.; People v. Falsetta, supra, 21 Cal.4th at p. 923 [CALJIC No. 2.50.01 “incorporates” the admonition “not to convict defendant solely in reliance on the evidence that he committed prior sex offenses”].)[2]

Defendant further contends that the holding in Reliford is dependent “on the instructions given in particular case, and the trial record in a particular case.” It is true, as the court recognized in Reliford, that a challenged instruction must be viewed “ ‘in the context of the instructions as a whole and the trial record’ to determine ‘ “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’ “ (Reliford, supra, 29 Cal.4th at p. 1013, quoting Estelle v. McGuire (1991) 502 U.S. 62, 72.) But there is nothing about the additional instructions given in this case that could be understood to distort the meaning of CALJIC No. 2.50.01. To the contrary, as in Reliford, the other instructions provide “additional support” for the conclusion that the jury could not have been misled in the manner that defendant posits. (Reliford, supra, at pp. 1013-1014.) CALJIC No. 2.50.1, for example, which was given in addition to CALJIC No. 2.50.01, reiterated, “If you find other crimes were committed by a preponderance of the evidence, you are nevertheless cautioned and reminded that before a defendant can be found guilty of any crime charged in this trial, the evidence as a whole must persuade you beyond a reasonable doubt that the defendant is guilty of that crime.”

Defendant cites People v. Younger (2000) 84 Cal.App.4th 1360, 1385, in which this court held it was prejudicial error to give the pre-1999 version of CALJIC No. 2.50.02 on evidence of other domestic violence, stating, “The jury was invited as a matter of law to find [defendant] guilty based on his past offenses.” (Italics omitted.) That instruction, however, lacked the cautionary advice that evidence of prior offenses is not sufficient for a finding of guilt. (People v. Younger, supra, at p. 1382.) As noted in Younger, in 1999 CALJIC No. 2.50.02 was revised to include the cautionary statement similar in all important respects to the instruction given in this case. (People v. Younger, supra, at p. 1380, fn. 2.)

2. Penal Code Section 803, Subdivision (f), Does Not Violate Constitutional Ex Post Facto Principles

Defendant also contends that Penal Code section 803, subdivision (f) violates the ex post facto clause of the federal Constitution. (U.S. Const., art. I, §§ 9, 10.) This section provides that where the limitations period for the prosecution of certain sex offenses against a minor, including violations of Penal Code sections 288 and 289, has otherwise expired, a criminal complaint nonetheless may be filed within one year after the violation is reported to a law enforcement agency provided that certain conditions (not challenged by defendant) are met. This provision became effective in 1994, prior to commission of any of the offenses for which defendant was prosecuted. Defendant acknowledges that in People v. Frazer (1999) 21 Cal.4th 737, the Supreme Court upheld the validity of this section. He explains that he seeks simply to preserve his contentions for review in another court. However, we note that the decision in Frazer was abrogated by name in the subsequent decision of the United States Supreme Court in Stogner v. California (2003) 539 U.S. 607. Nonetheless, both Frazer and Stogner were cases in which the offense for which the defendant was prosecuted occurred before section 803, subdivision (f) was enacted and the statute of limitations had expired prior to the enactment. Neither of those circumstances is present in this case, so that there is no ex post facto violation. (People v. Vasquez (2004) 118 Cal.App.4th 501, 506 [statute is “constitutional when applied to actions pending when adopted or to crimes committed thereafter”]; People v. Renderos (2003) 114 Cal.App.4th 961, 965 [“the only consequence of Stogner is that any enumerated crime must be committed or the limitations period . . . must expire after . . . the effective date of the statute”].)

Defendant also contends that because the predicate conditions to the application of Penal Code section 803, subdivision (f) need be proved only by a preponderance of the evidence, and because of the difficulty in defending against “long stale claims of wrongdoing,” the statute “impermissibly reduces the quantum of evidence needed for a conviction.” He contends this is a distinct reason for which the statute is an ex post facto provision, citing, among other cases, Carmell v. Texas (2000) 529 U.S. 513, 532-533. However, we need not pursue defendant’s reasoning as to why Penal Code section 803, subdivision (f) reduces the quantum of evidence necessary for a conviction because the section was enacted before the commission of the offenses for which defendant was tried and so, in all events, is not ex post facto. (People v. Vasquez, supra, 118 Cal.App.4th 501; People v. Renderos, supra, 114 Cal.App.4th 961.)

Disposition

The judgment is affirmed.

_________________________

Pollak, J.

We concur:

_________________________

Parrilli, Acting P. J.

_________________________

Siggins, J.

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[1] This section was renumbered in 2005. (Stats. 2005, ch. 479, § 3 (Sen. Bill No. 111).) The provision in question was formerly subdivision (g), as it is referred to throughout the briefs.

[2] The newly adopted Judicial Council of California Criminal Jury Instructions (CALCRIM) cover this subject in CALCRIM No. 1191. While this instruction may be a further improvement, its organization and content are substantially the same as CALJIC No. 2.50.01 and reaffirm the adequacy of the instruction given in this case.