P. v. Woody
Filed 3/11/13 P. v. Woody CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JON DAVID WOODY,
Defendant and
Appellant.
H037191
(Monterey
County
Super. Ct.
No. SS082448)
Defendant
Jon David Woody appeals from a judgment of
conviction entered after a jury found him guilty of three counts of sexual
penetration of a child 10 or under (Pen. Code, § 288.7, subd. (b)
- counts 1, 2, 5) and 17 counts of lewd acts upon a child under 14 (§ 288,
subd. (a) - counts 3, 4, 7, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24,
25). The jury found true the allegation
that the lewd acts were committed on multiple victims (§§ 1203.066, subd.
(a)(7), 667.61, subd. (e)(5)) as to counts 3, 4, 7, 12, 13, 17, 18, 19, 22, 23,
24, 25. After denying defendant’s motion
for new trial, the trial court sentenced defendant to an indeterminate term of
210 years to life and a consecutive determinate term of 16 years in
relating to the admissibility of evidence, jury instructions, and
I. Statement of Facts
A. Jane Doe 1 - Counts 1, 2, 3,
4, 5, 7, 12, 13, 14, 15, 16
Jane Doe 1,
who was born in December 1999, was 10 years old and in the fifth grade when she
testified at trial. Defendant and his
wife Nancy were her neighbors, and she, her twin brother and her younger sister
began visiting them when she was in kindergarten. When Jane Doe 1 was in first grade, defendant
and Nancy babysat her and her siblings after school. Jane Doe 1 stopped going to defendant’s house
when she was in third grade.
Jane Doe 1 remembered that
defendant had many boxes of Penthouse magazine in his basement. He showed Jane Doe 1 photographs of naked
women and asked if she could “do this pose.â€
She did not respond to his request.
Defendant took Jane Doe 1 into his
RV, which was parked next to his home.
Defendant told her that he would give her candy if she would clean the
RV while she was naked. She removed her
clothes, and defendant watched her while she vacuumed. He then gave her candy. This happened a couple of times.
Defendant also told Jane Doe 1 to
take off her clothes. He then laid her
on the bed or the couch in the RV, put his fingers into her vagina, and moved
them around. When he was finished, he
gave her candy. Sometimes he “just
fe[lt] and stroke[d]†her vagina.
Defendant also rubbed her buttocks while she was lying on the bed in the
RV. At other times defendant took his
clothes off, but left his underwear on.
He then touched her vagina.
Defendant once inserted the eraser end of a pencil in her vagina. On another occasion, defendant threatened her
and made her touch his penis over his underwear. She remembered kissing his penis while he was
wearing his underwear.
Defendant had a laptop computer in
the RV and he showed her the photos of naked women on the Web site
sex.com. He also showed her movies of
people having sex. She once accompanied
him to the store when he purchased a Penthouse magazine.
All the touching occurred in the RV
and defendant told Jane Doe 1 that he would kill or hit her if she did not do
what he wanted. He hit her on one
occasion in the RV, but she did not remember why. Defendant also used a Polaroid camera to take
photographs of her naked. The windows of
the RV were tinted so that no one could see inside.
Michelle,
Jane Doe 1’s mother, testified that when Jane Doe 1 was eight in September
2008, she asked her what a penthouse was.
Michelle replied that it was the best room in the hotel. Jane Doe 1 then asked, “[W]hat about the
magazine?†When she said that she had
seen one, Michelle asked what she had seen, and Jane Doe 1 replied that
“there’s naked people, and they’re doing that sex thing.†She also told her that defendant showed it to
her. Michelle told her that she would
talk to defendant and his wife about having the magazine available for children
to view. Jane Doe 1 then told her that
defendant had also touched her inappropriately.
After Jane Doe 1 provided more details, Michelle contacted the
police.
The police executed a search
warrant of defendant’s residence and RV on September 23, 2008. They conducted a forensic search of
defendant’s desktop computer in his home office and found that sex.com,
penthouse.com, and bunnyranch.com were Web sites that had been visited. They also seized a laptop computer on which
they found 29 deleted movie files, including 14 that referred to child
pornography. The police did not find any
Penthouse magazines in the basement, but there were four Penthouse magazines in
the master bedroom and one in the RV.
They did not find a Polaroid camera or photographs of Jane Doe 1.
Jane Doe 2 - Counts 17, 18, 19, 20, 21
Jane Doe 2,
who was born in June 1992, was 18 years old at the time of trial. She became involved in the Big Brothers Big
Sisters program when she was five years old.
Her mentors were defendant and Nancy.
She spent more time with defendant than Nancy, and played games on his
computer in his home office. He told her
that the computer would not work unless she was sitting on his lap and he was
touching her chest and genital area. As
she played on the computer while sitting on his lap, he reached under her clothing,
grabbed her nipples, and rubbed her vagina.
The touching occurred every time she went to his house. On one occasion, defendant kissed her on the
neck when they were in the car.
When Jane
Doe 2 told defendant that she did not want to take a nap at his house, he
pulled her pants down to her knees, inspected her vagina, and told her he was
checking to see if she was tired.
Defendant once took her into the basement, put her on the tool bench,
and pulled down her pants. He also asked
her to wear leather underwear on another occasion. She stopped participating in the Big Brothers
Big Sisters program because she felt uncomfortable with defendant.
Natalie,
Jane Doe 2’s mother, testified that her daughter participated in the program
for less than six months. Jane Doe 2
initially visited defendant and his wife once a week, but the frequency of the
visits “dropped down quite a bit.†While
she was being mentored by defendant and his wife, she no longer wanted to wear
dresses and became less receptive to other people. She also complained of pain in her genital
area. When she was seven or eight years
old, Jane Doe 2 told her mother that defendant had inappropriately touched her. Natalie asked her whether she wanted to take
him to court or never to see him again.
Jane Doe 2 decided never to see him again. Natalie did not contact the police. However, in 2008, Jane Doe 2 was in the
hospital and she reported the molestation to the police.
Jane Doe 3 - Uncharged Offenses
Jane Doe 3,
who was born in August 1987, was 23 years old when she testified at trial
regarding uncharged offenses committed by defendant. Her mother had read about the allegations
against defendant in the newspaper and asked her if she should come forward and
talk about what had happened to her.
Jane Doe 3 was defendant’s neighbor and her older brother was a friend
of defendant’s son. When she was about
four years old, she went to defendant’s house a couple of times a week to play
games on his computer. Defendant told
her that the computer would not work unless his hand was down her pants. She sat on his lap and played on the computer
while he rubbed her vagina and inserted his finger. Defendant sometimes asked, “Does that feel
good?†She usually played on the
computer for half an hour to an hour.
Nancy knew what defendant was doing because she stood next to him a few
times and “there was no way she could miss what was going on.†The touching occurred every time she visited
defendant’s house over a two year period.
Defendant asked Jane Doe 3 not to
wear pants with buttons. Defendant also
showed her magazines with naked people having sex, and said, “Doesn’t that look
like fun? Wouldn’t that feel good?â€
Jane Doe
3’s brother broke his collar bone late one night and one of her parents asked
defendant to come watch Jane Doe 3 while they took her brother to the
hospital. Jane Doe 3 woke up in the
middle of the night to find defendant standing over her. Defendant then put his hand down her pants
and touched her vagina.
The last time that Jane Doe 3 went
to defendant’s house, he instructed her to go into another room. After she did, he laid her on the bed, took
off her pants and underwear, touched her vagina, and inserted his fingers inside
her. He then said, “I’ll be right
back. I have something for you.†After he left, she dressed quickly and ran
home.
When Jane
Doe 3 was in kindergarten, her teacher gave a lesson on “bad touching.†She then told her mother what had
happened. Her mother Tamara testified
that they decided that they would handle the situation as a family and not
notify the police. She explained that
one of her students had been in a similar situation and the student’s mother
had told her how traumatic the investigation had been for her daughter. Tamara also had pressure from her husband not
to call the police.
Jane Doe 3 began seeing a therapist
when she was 15 years old and told her therapist about the molestation. These events affected Jane Doe 3’s life. She is scared of men, does not like going places
alone, and is paranoid about having children.
D. Jane Doe 4 - Counts 22, 23
Jane Doe 4,
who was born in October 1993, was 17 years old and housed in juvenile hall when
she testified at trial. She is the
younger sister of Jane Doe 5. Jane Doe 4
became involved in the Big Brothers Big Sisters program when she was almost
seven years old. She and Jane Doe 5 were
matched with defendant and Nancy. Jane
Doe 4 visited defendant’s home many times and frequently spent the night.
Jane Doe 4 played games on
defendant’s computer in his home office.
While she sat on defendant’s lap, he put his hands down her pants and
inserted his finger in her vagina. He
told her that she would not be able to play the game unless he touched
her. The touching occurred every time
she played with the computer, which was about 60 or 70 times. On one occasion, Jane Doe 4 and defendant
went into the basement to get a scooter, and defendant put her on a wooden
table, pulled down her pants and underwear, and put his fingers in her
vagina.
After defendant had touched her a
number of times, Jane Doe 4 told him that she was going to tell her
mother. Defendant said that it was a
secret and she couldn’t tell her mother because it was between the two of them. He also told her that he would buy her toys
and candy if she did not tell anyone. At
one point, Jane Doe 4, who was then eight years old, told her mother. When her mother became very angry, she then
lied and said that she was just playing.
Defendant bought Jane Doe 4 a lot
of toys and candy. He also bought her a
scooter and a bicycle. She thought that
defendant’s conduct was her fault. She
explained that she was letting him touch her because she wanted to play games
on the computer. When the acts occurred,
Nancy was in the kitchen with Jane Doe 5.
In May
2010, Jane Doe 4 was taken to juvenile hall.
She had been getting into trouble since she was 13. She had a phone conversation with her mother
in which her mother asked why she was always getting in trouble. Jane Doe 4 started crying and said, “You
don’t know what I’ve been through,†and “[defendant] used to touch me down
there.†She never discussed the
E. Jane Doe 5 - Counts 24, 25
Jane Doe 5,
who was born in October 1992, was 18 years old when she testified at
trial. She participated in the Big
Brothers Big Sisters program when she was seven or eight years old. She was matched with defendant Nancy and went
with Jane Doe 4 to their house.
Defendant supervised her when she used the computer. She sat on defendant’s lap while he put his
hands down her pants and rubbed her vagina.
The touching occurred every time that she used the computer. Jane Doe 4 would be watching television or
playing a board game with Nancy while Jane Doe 5 was playing on the computer.
Jane Doe 5 never spoke to Jane Doe
4 about the molestation. She learned
that Jane Doe 4 had also been molested by defendant only recently.
F. Defense Case
Defendant
testified on his own behalf at trial. He
was 65 years old and retired at the time of trial. He had been married to Nancy for 39 years and
they had a 36-year-old son Jimmy.
Defendant lives in a home in Prunedale and has an RV. He uses his basement as a storage space and
there is no work bench in it. He allowed
his neighbors to use his computer.
Defendant and Nancy were involved
in the Big Brothers Big Sisters program from 1972 or 1973 until approximately
1996. After participating in the
screening process, they were matched with Jane Doe 4, Jane Doe 5, their sister
Felicia, and other children.
There were also many neighborhood
children who would come over to their house.
The children went through their refrigerator, watched television, played
with their dog, and used their computer.
Jane Doe 1 was one of these children and she came over with her twin
brother and her sister. They watched
television and played with a radio-controlled toy. He paid them to get his mail because Nancy
had arthritis in her knees. Defendant
helped Jane Doe 1 and her brother with their math homework and he bought them
paper and pencils. He was never alone
with Jane Doe 1 for more than five minutes because her siblings were around. Defendant gave Jane Doe 1 candy for cleaning
his RV, stating that “she worked as a maid very cheaply†and liked cleaning the
RV. He denied: touching her vagina while they were in the
RV, putting his fingers inside her vagina, putting a pencil inside of her,
rubbing her buttocks, offering her candy for a sexual favor, showing her
pornography on the computer, showing her pornographic magazines, having her
touch his penis with her hands, having her kiss his penis, having her see him
in his underwear, and taking any photographs of her. He admitted that he bought a Penthouse
magazine when he went to the store with Jane Doe 1 and his wife.
Jane Doe 2
was matched to defendant and Nancy by the Big Brothers Big Sisters program when
she was five. The placement lasted six
or seven weeks because her father thought they were taking his time away from
his visits with his daughter. Defendant
saw Jane Doe 2 seven times. She spent
little time at his house, but he allowed her to play on the computer for an
hour. He did not own a laptop computer
at that time. When he showed her how to
set up games on the computer, she stood between his legs and she never sat on
his lap. Defendant had an extremely bad
back and knees and could not lift more than 20 pounds. He also could not sustain more than 20 pound
on his left leg. Defendant denied
touching Jane Doe 3’s vagina while she was on the computer. He also denied pulling down her pants in the
bedroom or the basement.
Jane Doe 3
lived next door to defendant and was the younger sister of his son’s friend
when his son was 14 years old. He only
saw her when she accompanied her brother to his house. She played on the computer once or
twice. He showed her how to use it the
same way that he had shown Jane Doe 2.
When Jane Doe 3’s brother was injured one night, he and Nancy watched
her. He denied touching Jane Doe 3’s
vagina that night or while she was playing on the computer.
Defendant
testified that he and Nancy were matched with Jane Doe 4, Jane Doe 5, and their
sister Felicia. Felicia decided that she
did not want to participate in the program after two weeks while Jane Doe 4 and
Jane Doe 5 stayed in the program for six months. The Big Brothers Big Sisters program
terminated the match because their mother was using the program as a
babysitter. After a month, the girls asked
defendant and Nancy if they could come over.
Defendant and Nancy then continued a relationship with them outside the
program. The girls would also spend the
night at defendant’s house when their mother was having a difficult time.
Defendant
denied touching Jane Doe 4 and Jane Doe 5’s vaginas. He also denied taking Jane Doe 4 to the
basement and pulling down her pants.
After hearing the accusations in court, he felt “pissed†because “none
of that ever happened.†He would never
hurt a child. Defendant also denied
visiting the Web sites sex.com, and bunnyranch.com, but admitted that he
visited penthouse.com. He denied that he
ever downloaded pornographic files onto his computer.
Discussion
Admissibility of Evidence
Defendant contends that the trial court erred in
admitting the testimony of Jane Doe 3 under Evidence Code sections 1108 and
352.
Prior to
trial, defense counsel objected to the admission of testimony by Jane
Doe 3 pursuant to Evidence Code section 352 on the ground that the prior
incidents occurred over 10 years ago and were related to uncharged
offenses. The prosecutor argued that the
uncharged offenses were similar to some of the charged offenses because
defendant molested Jane Doe 3 while she was playing on his computer. He also noted that Jane Doe 3’s testimony
would not be time-consuming and that courts have admitted evidence of uncharged
offenses which were more remote. When
the trial court referred to the burden on Jane Doe 3 to testify, the prosecutor
stated that “her attitude at this point is this is something she needs to do to
bring closure in her life as to the events.â€
The trial court ruled that her testimony was admissible under Evidence
Code section 1108.
After
defendant was convicted, he filed a motion for a new trial in which he argued
that Jane Doe 3 was more articulate and mature and that she was allowed to
testify about the effects of the uncharged offenses on her marriage and life,
which was extremely inflammatory and unduly prejudicial. The trial court denied the motion.
In general,
defendant has committed a prior offense other than the charged offense is
generally inadmissible to prove his or her disposition to commit the charged
offense. (Evid. Code, § 1101.) However, one of the exceptions to this
general rule involves sex offense cases.
(Evid. Code, § 1108.) Under Evidence Code
section 1108,
name="_ftnref3" title="">[3] the defendant’s other acts of
sex offenses are admissible to prove propensity to commit the charged offense
if the evidence is not inadmissible under Evidence Code
section 352. (People v. Loy (2011) 52 Cal.4th 46, 60 (Loy).) “ ‘[T]he Legislature decided
probative in sex crimes prosecutions it is presumed admissible without regard
to the limitations of Evidence Code 1101.’ [Citation.]
Or, as another court put it, ‘[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.’ [Citation.]â€
( Loy, at p. 63.)
provides that “[t]he court in its discretion may exclude evidence
if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing issues, or of misleading
the jury.†In reviewing the
admissibility of evidence under Evidence Code section
352, trial courts consider the “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 . . . . [Citations.]â€
(People v. Falsetta (1999) 21
Cal.4th 903, 917.)
On
appeal, “[t]his court reviews the admissibility of evidence
of prior sex offenses under an abuse of discretion standard. [Citation.]
A trial court abuses its discretion when its ruling ‘falls outside the
bounds of reason.’ †(People
v. Wesson (2006) 138 Cal.App.4th 959, 969.)
Here,
defendant was either a neighbor of or a mentor to girls between the ages of
four and eight in both the uncharged offenses and the charged offenses. The uncharged offenses and the charged
offenses involving Jane Does 2, 4, and 5 also involved similar conduct, that
is, repeated fondling and digital penetration of the victims’ vaginas while
they played on the computer. Moreover,
defendant told Jane Doe 3 and some of the other victims that they would only be
able to use the computer if he was touching them. Thus, the trial court
could have reasonably found that evidence of the uncharged offenses was highly
probative of defendant’s propensity for committing the charged offenses.
The trial court’s next step was to
evaluate the potential for prejudice posed by evidence of
the uncharged offenses. Defendant argues
that the uncharged offenses were remote, and thus prejudicial. Though the prior conduct occurred
approximately 16 years prior to trial, this factor does not significantly
lessen the probative value of the other crimes evidence. Between the time that defendant last molested
Jane Doe 3 and he began molesting Jane Doe 2 was approximately five years. A couple of years later, he then began
molesting Jane Does 4 and 5, and then eventually Jane Doe 1. Thus, this factor does not weigh in
defendant's favor.
Defendant argues that Jane Doe 3’s
testimony was more inflammatory than the charged offenses. Here, the evidence of the uncharged sex
offenses was no more inflammatory than the charged offenses. Defendant, however, refers to Jane Doe 3’s
response when the prosecutor asked her whether the molestation “affected [her]
life currently.†Over a defense
objection, she testified: “Um, I’m
scared of men. I have an amazing
husband, but our -- what a husband and wife should be doing is almost
impossible for me to do. I can’t stand
feeling him touch me. I don’t like going
places alone because I’m scared I’ll be hurt again. I’m paranoid about having children because I
don’t want anything like this to happen to them.†Defendant also claims that Jane Doe 3’s
testimony was “impassioned and political,†because she “sought ‘closure’ and
wished to help others.â€
“
‘The “prejudice†referred to in Evidence Code
section 352 applies to evidence which uniquely tends to
evoke an emotional bias against defendant as an individual and which has very
little effect on the issues. In applying
section 352, “prejudicial†is not synonymous with “damaging.†’
[Citation.]†(
320.) Here, as the trial court noted,
Jane Doe 3’s testimony was relevant on the issue of her credibility, that is,
it provided an explanation for why she came forward to testify in the case. We do not find this evidence
unduly prejudicial.
Defendant also contends that since
the uncharged acts did not result in criminal convictions, there was a risk
that the jury might have been tempted to punish him for the uncharged acts and
the jury’s attention was diverted to determining whether he committed those acts. There will always be less “certainty†than
there would be if there had been a conviction, and consequently an additional
burden on the defendant to defend against the uncharged acts as well as a
potential danger that the jury would want to convict defendant to punish him
for the past offense. However, here, the
jury instructions on reasonable doubt, the necessity of proof of the elements
of the offenses, and the limited purpose for which the evidence
of the uncharged acts was admitted counterbalanced this risk. Moreover, the jury was not likely to be
confused or misled as this evidence concerned events that
occurred at a different time than the charged offenses. In any event, these are just two of the
relevant factors that a trial court must weigh in balancing probative value
against undue prejudice.
In sum, the prejudicial factors,
that is, the degree of certainty that defendant committed the uncharged acts
and the likelihood of distracting the jurors from their main inquiry, did not
substantially outweigh the probative value of this evidence.
Thus, the trial court did not abuse its discretion in admitting this
Defendant also raises a procedural
issue, that is, that the record fails to show that the trial court properly
weighed the prejudicial factors against the probative value.
“When a section 352 objection is
raised, ‘the record must affirmatively show that the trial judge did in fact
weigh prejudice against probative value.’
[Citations.]†(
187.) However, “ ‘ “the trial judge need not expressly weigh prejudice against probative value—or even
[Citations.]†(
83, 135.) The California Supreme Court
has found that when the arguments of counsel or comments by the trial court
refer to the issues of prejudice and probative value, it could be inferred that
the court was aware of Evidence Code section 352 and thus of its duty to weigh
probative value against prejudice. (See,
e.g., People v. Garceau (1993) 6
Cal.4th 140, 179, overruled on another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.) Here, the prosecutor’s motion to introduce
evidence pursuant to Evidence section 1108, as well as his trial brief,
referred to Evidence Code section 352 and the relevant factors to be considered
by the trial court. The prosecutor and
defense counsel also referred to the issues of relevancy and prejudice at the
hearing on the in limine motion. Thus,
we conclude that the trial court was aware of its duty under Evidence Code
section 352.
B. Jury Instructions
Defendant
next challenges the jury instructions on propensity evidence (CALCRIM No. 1191)
and the multiple victim enhancement allegation (CALCRIM No. 3181).
When a
criminal defendant challenges the propriety of a jury instruction, we inquire “ ‘whether there is a reasonable
likelihood that the jury has applied the challenged instruction in a way’ that
violates the Constitution.†(
72, quoting Boyde v. California
(1990) 494 U.S. 370, 380 (Boyde).) We evaluate the challenged instruction in the
context of all the instructions given by the trial court. (Boyde, at p. 378.) We will find error only if it is
reasonably likely that the jury misunderstood the law. (People
v. Kelly (1992) 1 Cal.4th 495, 525-526.)
1. CALCRIM No. 1191
Defendant
argues that the trial court instructed the jury pursuant to a version of
CALCRIM No. 1191 that was prejudicially defective.
The
standard CALCRIM No. 1191 instruction on evidence of uncharged sex offenses
states: “The People presented evidence
that the defendant committed the crime[s] of
you in these instructions. [¶] You may consider this evidence only if the
People have proved by a preponderance of the evidence that the defendant in
fact committed the uncharged offense[s].
Proof by a preponderance of the evidence is a different burden of proof
from proof beyond a reasonable doubt. A
fact is proved by a preponderance of the evidence if you conclude that it is
more likely than not that the fact is true.
[¶] If the People have not met
this burden of proof, you must disregard this evidence entirely. [¶] If
you decide that the defendant committed the uncharged offense[s], 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 [and did commit]
the uncharged offense[s], 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
People must still prove (the/each) (charge/ [and] allegation) beyond a
reasonable doubt. [¶] [Do not consider this evidence for any other
purpose [except for the limited purpose of
In the
present case, the trial court instructed the jury as follows: “The People presented evidence that the
defendant committed the crimes against Jane Doe 3, . . . that was not charged
in this case. These crimes are defined
for you in these instructions. You may
consider this evidence only if the People have proved by a preponderance of the
evidence that the defendant, in fact, committed the uncharged offenses. [¶]
Proof by a preponderance of the evidence is a different
reasonable doubt. A fact is proved by a
preponderance of the evidence if you conclude that it is more likely than not
that the fact is true. If the People
have not met this burden, you must disregard the evidence entirely. [¶] If
you decide that the defendant committed the uncharged offenses, you may, but
are not required to, conclude from the 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 and did commit the sex
offenses as charged here. [¶] If you conclude that the defendant committed
the uncharged offenses, that conclusion is only one factor along with all the
other evidence. It is not
self-sufficient by itself to prove the defendant is guilty of the charged sex
offenses. The People must still prove each
charge and allegation beyond a reasonable doubt. Do not consider this evidence for any other
purpose.â€
Defendant
points out that the first line of the instruction fails to identify the
offenses committed against Jane Doe 3, and that the next line incorrectly
states that “these crimes are defined for you in these instructions.†Defendant also asserts that the offenses
committed against Jane Does 1, 2, 4, and 5 are not specified in the
instruction, and thus the jury “would be likely to interpret this instruction
to mean that whatever Jane Doe 3 testified to [testimony regarding problems
with her husband, fear of having children, desire to support other victims]
could be used to prove whatever the accusations were pertaining to Jane Does 1,
2, 4 and 5.â€
Here, Jane
Doe 3 testified that defendant repeatedly rubbed her vagina and inserted his
finger into her vagina. Though the trial
court did not identify the uncharged offenses committed against Jane Doe 3, it
did subsequently define the offenses of sexual penetration of a child under 10
and lewd acts on a child under 14. The
jury was also informed of the charges relating to Jane Does 1, 2, 4, and 5
through other instructions and the verdict forms. In the context of all the instructions given,
it is not reasonably likely that the jury would have interpreted the challenged
instruction as allowing it to consider her testimony about problems with her
husband and fear of having children as uncharged offenses from which it could
then conclude that defendant was disposed to commit the charged offenses.
Defendant next argues that the
final paragraph of the instruction “compounds the negative effects of the
previous ones,†because it fails to specify the purpose for which the evidence
of uncharged offenses may be used by the jury.
However, the trial court had already instructed the jury as to the
limited purpose of the propensity evidence.
The jury was instructed that “[i]f you decide that the defendant
committed the uncharged offense, you may, but are not required to, conclude
from that evidence that the defendant was disposed or inclined to commit sexual
offenses . . . .†There was no need to
repeat the instruction on the purpose of the propensity evidence.
Defendant’s
reliance on People v. Orellano (2000)
79 Cal.App.4th 179 is misplaced. In
in 1998, the jury was not provided with the subsequently adopted cautionary
language of the 1999 revision to CALJIC No. 2.50.01, which states: ‘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. The weight and
significance of the evidence, if any, are for you to decide.’ [Citations.]â€
(Id. at p. 183.) The Court of Appeal found the instruction
prejudicially erroneous and reversed the judgment. (Id.
at p. 181.) Here, the instruction
included the language omitted in Orellano.
2. Instruction on Multiple
Victim Allegations
Defendant
also argues that the instruction on the multiple victim enhancement allegations
was impermissibly unclear.
The trial
court instructed the jury: “If you find
the defendant guilty of two or more of the sex offenses charged, you must then
decide whether the people have proved the additional allegation that those
crimes were committed against more than one victim. The People have the burden of proving this
allegation beyond a reasonable doubt. If
the People have not met this burden, you must find this allegation has not been
proved.â€
true the allegation that the lewd acts were committed on multiple victims as to
counts 3, 4, 7, 12, 13, 17, 18, 19, 22, 23, 24, and 25. However, the jury found not true the
allegation that the lewd acts were committed on multiple victims as to counts
14, 15, 16, 20, and 21.
Defendant
contends that the trial court erred by failing to inform the jury which charges
the multiple victim allegation applied to and when the multiple victim
enhancement would apply.
Here, the
jury was informed that defendant was charged with multiple counts of two
offenses, that is, sexual penetration (§ 288.7, subd. (b)) and lewd acts upon a
child under 14 (§ 288, subd. (a)).
Sexual penetration was charged only as to one victim, Jane Doe 1. Lewd acts upon a child under 14 was charged
as to all the victims, Jane Does 1, 2, 4, and 5. Thus, the jury would have reasonably
understood the challenged instruction to mean that the multiple victim
allegation only referred to the lewd touching charges. This point was emphasized when the trial
court instructed the jury that the verdict forms referring to the section 288,
subdivision (a) charge contained the multiple victim allegation. The jury was instructed that “[t]he only
difference is in the charges that refer to the lewd act upon a child -- let me
find one of them here -- there’s a further finding included in the verdict form
which is: ‘We the jury find that the
defendant did/did not commit the crime of lewd acts upon a child under 14
against more than one victim.’ †Moreover, the verdict forms specified that
the multiple victim allegation applied to the lewd conduct counts. For example, the verdict form for count 3
provided: “We, the Jury, sworn to try
the above-entitled case, find the defendant, JON DAVID WOODY, (GUILTY/NOT
GUILTY) of the crime of LEWD ACTS UPON A CHILD UNDER 14, against [Jane Doe 1],
in Violation of California Penal Code Section 288(a), to wit: DIGITAL
PENETRATION - FIRST TIME. [¶] We, the Jury, further find, that the
defendant (DID/DID NOT) commit the crime of LEWD ACTS ON A CHILD UNDER 14,
against more than one victim.â€
Defendant argues, however, that the
verdict forms were inconsistent because one instruction “vaguely just referred
to the crime as ‘basement’ †and
“there were several that referred to the specific offense, but the last four
just referred to the code section.â€
There is no merit to this argument.
All the verdict forms that included the multiple victim allegation
specified both the crime of lewd acts upon a child under 14 and the applicable
code section. Where there was evidence
of more than one lewd act as to a particular victim, the verdict form
identified which act the count referred to.
For example, the verdict form for count 19 referred to the lewd act
charge that occurred in the basement as to Jane Doe 2, while the verdict form
for count 22 referred to the first time defendant committed a lewd act upon
Jane Doe 4. Furthermore, defendant is
incorrect that the last four verdict forms referred only to the code
section. These verdict forms referred to
either the first or last time that defendant committed a lewd act upon either
Jane Doe 4 or Jane Doe 5. Thus,
defendant has failed to establish that it was reasonably likely that the jury
would have misunderstood the law based on the trial court’s instructions or the
verdict forms.
title="">[5]
The Trial Court’s Comment Regarding the Verdict Forms
Defendant
next contends that the trial court improperly suggested to the jury that it
convict him of the charged offenses rather than the lesser included offenses
because it would not be required to fill out as many verdict forms. We disagree.
The trial
court instructed the jury as follows:
“If all of you find the defendant is not guilty of the greater crime,
you may find him guilty of a lesser crime if you are convinced beyond a
reasonable doubt that the defendant is guilty of that lesser crime. A defendant may not be convicted of both a
greater and a lesser crime for the same conduct. [¶]
Simple battery is a lesser crime to each of the crimes charged. Simple assault is a lesser crime to battery. [¶] It
is up to you to decide the order in which you consider each crime and the
relevant evidence, but I cannot accept a verdict of guilty of a lesser crime
unless you have found the defendant not guilty of the corresponding greater
crime. [¶] For each count you will receive verdict forms
of guilty and not guilty for the greater crime, which is the crime charged, and
also verdict forms of guilty and not guilty for each of the lesser crimes.â€
After the
trial court instructed the jury how to complete the verdict forms depending on
whether it found defendant guilty of the charged offenses or the lesser
included offenses, the court commented:
“Now, ladies and gentlemen, to approach this from another angle, you are
going to receive a total of, I believe, 63 verdict forms. So there’s 21 counts, but there are two
lesser included offenses that are potentially there for each of those
counts. So that’s a total of 63 verdict
forms. [¶] If you find the defendant guilty of a charged
crime, then you do not fill out any other verdict forms. In other words, the lesser included verdict
forms for that particular count.
[¶] So if you -- looking at the
whole picture, if you found the defendant guilty of all the charged crimes, you
would only fill out 21 verdict forms.
But if you find the defendant not guilty of everything, you would fill
out 63 verdict forms. It sounds kind of
unfair, but that’s -- I’m just trying to explain to you how the system
works. And none of this is by of way is
giving you any suggestion as to what you should do or how you should approach
it. It’s entirely up to you.â€
The trial
court’s comments to the jury did not suggest to the jury that it would be
easier to convict defendant of the charged offenses rather than the lesser
included offenses. The trial court
accurately explained the number of verdict forms and the manner in which they
should be completed depending on whether they found him guilty of the charged
offenses, not guilty of the charged offenses but guilty of the lesser included
offenses, or not guilty of any of the offenses.
Moreover, the trial court expressly stated that it was not suggesting
what the jury should do or how it should approach its voting. Given that the trial court properly
instructed the jury on reasonable doubt, to consider all the evidence, and that
it could only convict defendant of the lesser included offenses if it found him
not guilty of the charged offenses, it is not reasonably likely that the jury
understood the trial court’s comments to mean that it should convict defendant
of the charged offenses because it involved filling out fewer forms.
D. Prosecutorial Misconduct or
Judicial Error
Defendant
contends that the prosecutor engaged in misconduct during closing argument by
displaying a photograph of defendant. He
also contends that the trial court erred by overruling defense counsel’s
objection to the photograph.
Prior to
giving his closing argument, the prosecutor stated that he planned on showing a
photograph of defendant during argument.
The photograph depicted defendant behind a microphone wearing a beige
jacket and a red and white striped shirt, which is what the defendant was
currently wearing in the courtroom. The
photograph had the word “guilty†written on it.
Defense counsel objected on the grounds that the photograph had not been
entered into evidence and it was inflammatory.
The trial court overruled the objection and stated: “The photograph does reflect exactly what the
defendant looks like here in the courtroom.
Not particularly well-focused, but you can make it out. And I plan to start off by reminding the jury
that what the attorneys say is not evidence.â€
The trial court then instructed the jury: “The attorneys are now going to have a chance
to address you. What they say is not
evidence. They’re going to tell you what
they think the evidence means, but ultimately, that’s going to be up to you
folks to decide what the evidence means.
So please take what they have to say in that light. I’m not saying you shouldn’t pay attention to
it and evaluate it that for what it’s wort[h], but it is not evidence.†The trial court later instructed the
jury: “You must use only the evidence
that was presented in this courtroom.
Evidence is the sworn testimony of witnesses [and] the exhibits admitted
into evidence . . . .â€
“On appeal, we presume
that a judgment or order of the trial court is
intendments and presumptions are indulged to support it on matters as to which
the record is silent, and error must be affirmatively shown.†’
[Citation.]†(
644, 666.) Thus, a defendant has the
burden to present an adequate record on appeal.
(In re Kathy P. (1979) 25
Cal.3d 91, 102; People v. Malabag
(1997) 51 Cal.App.4th 1419, 1427.)
Here, the
photograph used by the prosecutor during closing argument has not been included
in the record on appeal. Thus, our
review of this issue is necessarily limited to the description of the
photograph that was provided by the prosecutor and the trial court.
“
‘The applicable federal and state standards regarding prosecutorial
misconduct are well established. “ ‘A
prosecutor’s . . . intemperate behavior violates the federal Constitution when
it comprises a pattern of conduct “so egregious that it infects the trial with
such unfairness as to make the conviction a denial of due process.†’ â€
[Citations.] Conduct by a prosecutor
that does not render a criminal trial fundamentally unfair is prosecutorial
misconduct under state law only if it involves “ ‘ “the use of deceptive or reprehensible
methods to attempt to persuade either the court or the jury.†’ â€
[Citation.]’ †(People
v. Smithey (1999) 20 Cal.4th 936, 960.)
In People v. Waldie (2009) 173 Cal.App.4th 358 (Waldie), the prosecutor’s laptop displayed the word “ ‘GUILTY,’ †which may have been observed by the jury when it entered and
existed the courtroom during closing arguments.
(Id. at p. 367.) In his motion for new trial, the defendant
argued that the prosecutor engaged in misconduct because the message might have
had an improper subliminal effect on the jury.
Waldi reasoned that “[t]he
unfortunate, but inadvertent and casual, display of a single word fairly
characterizing the prosecutor’s position does not qualify as intemperate,
egregious, unfair, deceptive, or reprehensible conduct,†and held that the
trial court did not abuse its discretion in denying the motion. (Ibid.)
Here,
unlike in Waldie, the prosecutor’s
display of defendant’s photograph with “guilty†written on it during
inadvertent. Nevertheless, though many
might find such conduct unprofessional, this court cannot conclude that the
prosecutor engaged in misconduct under either federal or state law. The use of the photograph did not constitute
an egregious pattern of conduct that deprived defendant of due process. The photograph was neither deceptive nor
reprehensible since it presented defendant as he appeared at trial and wearing
the same clothing. The prosecutor argued
that the evidence established that defendant was guilty and, as in
photograph did no more than reinforce this position. Moreover, the trial court properly admonished
the jury that the attorneys’ arguments did not constitute evidence, that it
must only consider evidence in reaching its verdict, and that evidence
consisted of the witnesses’ testimony and exhibits admitted into evidence. We must presume that the jury understood and
followed those instructions. (
492.) Thus, it must be presumed that the
jury understood that the photograph of defendant was not evidence and could not
be considered in determining his guilt or innocence.
Even
assuming that the use of the photograph constituted prosecutorial misconduct or
error by the trial court, the error was not prejudicial because it is not reasonably
likely the result would have been different if the photograph had not been
displayed. (People v. Davis (2009) 46 Cal.4th 539, 612.) The testimony of Jane Does 1, 2, 4, and 5,
which was corroborated by Jane Doe 3’s testimony, was consistent and credible. It established that defendant lured the four
girls, who were between the ages of five and eight, to his home by befriending
them as a neighbor or as a mentor in the Big Brothers Big Sisters program. He then offered them candy or the opportunity
to play computer games in order to be able to molest them. There was no evidence that undermined their
version of events. Since the evidence of
guilt was overwhelming, the prosecutor’s conduct was not prejudicial.
III. Disposition
The
judgment is affirmed.
_______________________________
Mihara,
J.
WE CONCUR:
______________________________
Premo,
Acting P. J.
______________________________
Márquez,
J.
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code unless stated otherwise.
name="_ftn2" title="">[2] Defendant
also contends that the trial
court erred in denying his motion for new trial
raises on appeal, this appellate contention is superfluous.
