P. v. Bedi
Filed 7/19/12 P. v. Bedi CA1/4
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
TAJINDER
SINGH BEDI,
Defendant and Appellant.
A131676
(Contra Costa County
Super. Ct. No. 51006352)
I.
INTRODUCTION AND
PROCEDURAL BACKGROUND
On
December 4, 2008, Tajinder Singh Bedi was charged by complaint with committing
a lewd act upon Jane Doe I (Doe I), a child under age 14 (Pen. Code,
§ 288, subd. (a) (Count I)), committing a lewd act upon Jane Doe II (Doe
II), a child age 14-15 (Pen. Code, § 288, subd. (c)(1) (Count II)), and
committing sexual battery by restraint
upon Melissa F., a 22-year-old woman (Pen. Code, § 243.4, subd. (a) (Count
III)). The prosecution was unable to
locate Melissa F. prior to the preliminary
hearing. Count III was dismissed by
June 11, 2010, when appellant was charged by information with Counts I and
II.
A
12-day jury trial commenced on February 15, 2011. On the first day of trial, respondent filed a
motion in limine requesting the court
admit the testimony of Melissa F. regarding the facts surrounding the dismissed
sexual battery. On February 17, 2011,
appellant filed a motion in limine seeking to exclude the Melissa F. testimony. The court heard oral arguments on the motions
that same day, and granted the motion to allow the Melissa F. testimony. During the trial, testimony was heard by the
victims of the first two counts, Doe I and Doe II, and Melissa F., the alleged
victim of the dismissed count. The jury
found appellant guilty on both counts.
On
March 24, 2011, the court sentenced appellant to the aggravated term of eight
years on Count I, and one-third the midterm, equaling eight months, on Count II
to be served concurrent to Count I.
However, the abstract of judgment filed March 25, 2011, recorded a
concurrent midterm under Count II in the erroneous amount of two years eight
months, thereafter erroneously recording the total aggregate prison term
imposed for the two counts as eight years eight months. The sentence was appealed, and this court
directed the trial court to sentence Count II concurrently at the full midterm
of two years. The lower court complied
at a resentencing on January 26, 2012.
Appellant
appeals both convictions, contending that Evidence Code section 1108
is unconstitutional and that admission of evidence of his uncharged sexual
offense under section 1108 violated his right to a fair trial, due process, and
equal protection of the laws under the state and federal constitutions. Appellant also argues the trial court erred
in admitting that evidence under section 352.
Finally, appellant requests the correction of a sentencing error. We conclude that section 1108 is
constitutional, appellant’s constitutional rights were not violated, and the
trial court did not abuse its discretion in admitting the evidence under
section 352. As to the sentencing error
briefed, that error has been corrected, and is now moot. We therefore affirm the judgment.
II.
FACTUAL BACKGROUND
While
working as an intern at a counseling center, appellant sexually violated two
minors, Doe I and Doe II. Melissa F., an
adult, testified the appellant committed a similar sexual act against her at
the counseling center.
On
Friday, January 25, 2008, Doe I’s mother drove her then 13-year-old daughter to
a 5:00 p.m. appointment with appellant at the counseling center. Prior to the January 25, 2008
appointment, all of Doe I’s prior appointments with appellant (approximately
nine) included at least one other person being present. Doe I and her mother decided this would be
her first appointment alone with appellant.
Doe I’s mother waited in the waiting room with appellant’s wife and two
children.
During
the counseling session Doe I and appellant spoke for approximately 20 minutes
and discussed the reason for her visit.
Appellant then recommended she try some yoga exercises to help her cope
with her stress. Appellant took off his
shoes and told her to do the same. She
left her socks on to be more comfortable.
Appellant closed the blinds on the office windows then instructed Doe I
to kneel in front of the couch, bend over, put her hands down, place her head
against her hands on the couch, and close her eyes. After doing so, she heard a noise that
sounded like appellant slipping out of his jeans and walking toward her. He got on his knees behind her so that her
ankles were touching his inner thighs.
He then pulled the bottom of her sweat pants up, revealing her calves,
which he then massaged with one hand on each calf. He lifted her feet bringing them into contact
with his penis. Holding her feet with
both hands, he then
rubbed the bottoms of her feet around his penis. After approximately 30 seconds of rubbing,
appellant gasped and got up quickly.
When Doe I opened her eyes appellant had already put on his pants and
was opening the blinds. She felt scared
and confused, put on her shoes, and called her mother in.
Doe
I stood in the office with her mother and appellant while they spoke for
approximately five minutes. Doe I’s
mother testified that appellant said he gave her daughter a small yoga lesson
and everything was fine. During this
conversation, she remembers her daughter looking desperate to leave and
wringing her hands. Doe I recalled
appellant glancing at her with a powerful stare during the conversation. Regardless, Doe I’s mother thought everything
was fine and offered to bring Doe I back for another session on Monday.
Doe
I and her mother arrived at their home that evening, where she eventually told
her mother what appellant did to her during her 5:00 p.m. session. Her mother did not believe Doe I’s story but
told her to talk it over with her school counselor.
On
January 29, 2008, Doe I’s school counselor contacted the local police
department, which dispatched an officer to take a report. The police interviewed appellant shortly
thereafter. Appellant claimed that
during the January 25, 2008 session Doe I was not alone but with her mother,
his door was open, his wife and children were in the waiting room, and he never
had any physical contact with Doe I.
On
November 15, 2008, Doe II’s mother took Doe II, then 15 years old, to her
second visit at the counseling center.
Doe II and appellant began the session speaking as they did at her
previous appointment. At some point
appellant asked her if she wanted to do yoga, then instructed her to take off
her shoes, kneel, and lean into the sofa.
She took of her shoes but left her socks on. Then she knelt as he asked and placed her
hands and her head on the sofa cushions in a way that prevented her from
seeing. Appellant then knelt behind her
and started massaging her calves with his hands. Staying on his knees, appellant scooted in
closer to her feet. Feeling as though
his penis was going to touch her feet she moved her feet forward. Appellant then scooted in closer touching his
penis to her feet. In response to this,
Doe II got up, put on her shoes and left the counseling room crying. Appellant did not remove or pull down the
knee-length shorts he was wearing during the incident.
Doe
II’s mother testified that Doe II had been inside the counseling room for about
10 minutes before she came out screaming and crying and said, “he touched
me.” She told her mother what happened
and they were getting ready to go to the police when appellant came outside of
the counseling office. Appellant tried
to bring Doe II’s mother into his counseling room to explain what happened, but
Doe II’s mother responded that she believed her daughter, and that she was
going to the police.
On May 28, 2005,
Melissa F., 22 years old at the time, arrived with her six-month-old daughter
at the counseling center for a 6:00 p.m. appointment with appellant. She brought her daughter into the
session. In the session, appellant first
told her not to mention anything that was said between them in the room to
anyone. They then discussed the reason
for her visit for approximately 15 to 20 minutes. At some point during the session appellant
suggested yoga as a way to relax and reduce stress. Appellant asked if Melissa F. had ever tried
yoga before, she answered that she had, and he then instructed her to kneel on
the couch and bend over the arm of a couch while arching her back. Appellant then began massaging her back with
his hand and knelt on the couch behind her.
Next, he pressed his hand downward against her back, effectively keeping
her in place, and rubbed his penis against her buttocks for about 20 to 60
seconds. Realizing this was
inappropriate and not a yoga exercise, she demanded that he stop. Appellant stopped. Melissa F. grabbed her daughter and walked
out of the office, returning a few moments later to tell him what he had done
was inappropriate. She called the police
as soon as she got home.
III.
DISCUSSION
Appellant
contends the trial court erred in admitting evidence regarding the uncharged
sexual offense. Appellant posits that
one of the grounds the trial court relied on for admitting the evidence,
section 1108, is unconstitutional.
Similarly, appellant claims admission of this evidence violated his
rights to equal protection of the laws, due process, and fair trial under the
should have been inadmissible under section 352.
During
in limine motions, the prosecution proffered the testimony of Melissa F. as evidence
of a prior uncharged sexual offense. The prosecution argued that this evidence
was admissible, under sections 1108 and 352, as a prior sex offense to
establish appellant’s sexually assaultive behavior. The prosecution also argued that this evidence
was admissible under section 1101, subdivision (b) as relevant to prove intent,
modus operandi, and absence of mistake or accident. The trial court granted the motion, ruling
that the testimony from Melissa F. would be admissible under sections 1101 and
1108. The trial court also exercised its
discretion in favor of admission under section 352, ruling that the evidence
was not inflammatory, the relevancy of the information was not outweighed by
the prejudicial value, it would not be misleading, and its admission would not
involve an undue consumption of time.
Section 1108 Lacks Merit
Evidence
of a appellant’s prior offense is generally inadmissible to prove his or her
conduct on a specific occasion, unless that evidence is offered to prove some
fact (e.g. motive, plan, intent, or absence of mistake or accident)
such an act. (See § 1101.) In 1995, the Legislature enacted section 1108
to provide another exception to this general rule in sexual offense cases: “In
a criminal action in which the defendant is accused of a sexual offense,
evidence of the defendant’s commission of another sexual offense or offenses is
not made inadmissible by section 1101, if the evidence is not inadmissible
pursuant to [s]ection 352.”
(§ 1108, subd. (a); see generally People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta).)
On
appeal, appellant contends that California Supreme Court precedents holding
that section 1108 does not violate constitutional rights to due process and a
fair trial were incorrectly decided.
(See Falsetta,
1007 (Reliford).) Appellant concedes that the precedents
established in Falsetta and
independently deciding the issue and raises the issue to preserve it for
federal review. Indeed, “[u]nder the
doctrine of stare decisis, all tribunals exercising inferior jurisdiction are
required to follow decisions of courts exercising superior
jurisdiction. . . . The
decisions of [the California Supreme Court] are binding upon and must be
followed by all the state courts of California.” (Auto
Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d
450, 455, italics omitted.) Recognizing
the clear directive of our Supreme Court, we cannot agree that these precedents
were wrongly decided.
Similarly,
appellant contends that appellate decisions holding that section 1108 does not
violate the constitutional right to equal
protection were also incorrectly decided.
(See, e.g., People v. Fitch (1997)
55 Cal.App.4th 172, 184; People v.
Jennings (2000) 81 Cal.App.4th 1301, 1311-1312 [holding § 1109, a
similar statute, constitutional].)
Appellant’s assertion lacks merit.
“An equal protection challenge to a statute that creates two
classifications of accused or convicted defendants, without implicating a constitutional
right, is subject to a rational-basis analysis.
[Citation.] [¶] [S]ection
1108 withstands this relaxed scrutiny.”
(People v. Fitch,
constitutionally valid.
name="_ftnref2" title="">[2]
C. The Trial Court Did Not Abuse Its Discretion
in Admitting Evidence of Appellant’s Prior Sexual Offense
Appellant
next contends that the trial court abused its discretion in finding evidence
regarding the Melissa F. incident admissible under section 352. Under section 1108, when a defendant is
accused of a criminal sexual offense,
evidence of an uncharged sexual offense is admissible to prove defendant’s
disposition to commit the accused sexual offense so long as that evidence is
not inadmissible under section 352.
Section
352 imposes an obligation on the admitting court to balance the relevance, or
probative value of the evidence against other factors: “The 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 the issues, or of misleading the jury.” In deciding whether to admit or exclude
evidence of a defendant’s prior sex offense under section 352, the trial judge
“must consider such factors as its nature, relevance, and possible remoteness,
the degree of certainty of its commission and the likelihood of confusing,
misleading, or distracting the jurors from their main inquiry, its similarity
to the charged offense, its likely prejudicial impact on the jurors, the burden
on the defendant in defending against the uncharged offense, and the
availability of less prejudicial alternatives to its outright admission, such
as admitting some but not all of the defendant’s other sex offenses, or
excluding irrelevant though inflammatory details surrounding the offense. [Citations.]”
(Falsetta,
probative value of an uncharged act is its similarity to the charged
offense. . . .’
[Citation.]” (
1262, 1274; see also People v. Soto
(1998) 64 Cal.App.4th 966, 986 [finding “ ‘similarity would tend to
bolster the probative force of the evidence’ ”].) “The court’s ruling under section 1108 is
subject to review for abuse of discretion.
[Citation.]” (
Appellant
argues the prior offense was highly dissimilar to the present offenses and
cites two differences. First, appellant
emphasizes the victim in the uncharged offense was a 22-year-old woman, not a
minor. In People v. Escudero (2010) 183 Cal.App.4th 302, 306, 308, evidence
of the defendant’s prior sexual offenses against a woman in her 30’s was admissible
to prove propensity to commit a lewd and lascivious act against a
seven-year-old girl. Finding the
evidence admissible, the Third District explained, “persons with deviant sexual
urges do not always limit their sex crimes to victims of the same age group.
Thus, evidence of a defendant’s sex offenses against adult women is
probative to the question of the defendant’s guilt of committing sex crimes
against a young girl.” (
uncharged crimes being within the same age range (four to six years apart) is
notable when considering passage of time between prior and current
offenses].) Here, the age difference
between the victims is nine years, not as great as the 23-year difference in
308. Therefore Melissa F.’s age is not a
significant distinction.
Next,
appellant attempts to distinguish the prior offense from the present offense
citing that appellant massaged Melissa F.’s back, then rubbed his penis on her
buttocks, rather than massaged her calves, then rubbed his penis on her feet as
he did with the victims in the charged offenses. This too is a distinction with no material
difference. “Many sex offenders are not
‘specialists’, and commit a variety of offenses which differ in specific
character. [Citation.]” (People
v. Soto, supra, 64 Cal.App.4th at
p. 984.)
In
this case, the trial court properly determined
that the behavior described by Melissa F. was “very similar and consistent” with
the behavior described by the victims of the charged offenses. Just as in each of the two charged offenses,
appellant brought a young woman into his office, instructed her to get into a
yoga position on or against his couch, knelt behind her, massaged her, then
rubbed his penis against a clothed area of her body for a minute or less. Also contributing to its probative value we
note that the Melissa F. offense was not remote, occurring just under two years
eight months before the first offense. (
1056, 1059 [finding evidence of a lewd act five years prior to the present
charge “not remote in time”].)
In
any case, because section 1108 allows evidence of any sexual offense as defined
in section 1108, subdivision (d)(1) no matter
how dissimilar to prove propensity,
section 352 does not require that charged and uncharged offenses be similar in
order to have sufficient probative value.
(See People v. Frazier (2001)
89 Cal.App.4th 30, 40-41.)
Melissa
F.’s testimony was also relevant for purposes of section 352 balancing to
determine the credibility of the victims.
In enacting section 1108, the Legislature was persuaded that: “The
propensity to commit sexual offenses is not a common attribute among the
general public. Therefore, evidence that
a particular defendant has such a propensity is especially probative and should
be considered by the trier of fact when determining the credibility of a
victim's testimony.” (Sen. Rules Com.,
Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 882
(1995-1996 Reg. Sess.) as amended July 18, 1995, p. 8; accord,
pp. 911, 912.) Because the
testimony of Doe I and Doe II was the only direct source of evidence
incriminating appellant, the jury’s assessment of their credibility was
crucial. Recognizing this, the defense
challenged the accuracy of the victims’ perceptions and memories and introduced
prior inconsistent statements. However,
Melissa F.’s testimony of a similar prior offense supported the testimony of
the Doe I and Doe II, and was thus relevant and used in accordance with the
Legislature’s intentions. (See generally
ibid.; see also People v. Walker (2006) 139 Cal.App.4th 782, 797.)
“Against this
substantial probative value on material and contested issues, we must weigh the
danger of undue prejudice to defendant, of confusing the issues, or of
misleading the jury.” (People v. Kipp
(1998) 18 Cal.4th 349, 372,
375.) In weighing prejudice it has been
observed that “ ‘ “all evidence which tends to prove guilt is
prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is
‘prejudicial.’ ” ’
[Citations.]” (
section 352 is that “ ‘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.” ’ [Citations.]
(People v. Callahan (1999) 74
Cal.App.4th 356, 371.) Here, Melissa
F.’s testimony was highly probative as to key issues in the case, and therefore
did not create the undue prejudice
section 352 was designed to exclude.
(See People v. Hollie,
“A trial court should not exclude highly probative evidence unless the
undue prejudice is unusually great.
[Citation.]” (
Other
factors relevant to assessing the prejudicial effect of other crimes evidence
include the evidence’s inflammatory effect on the jury and whether or not the
defendant was convicted of the uncharged offense. (People
v. Hollie, supra,
increases the danger the jury might have been “inclined to punish defendant for
the uncharged offenses, regardless whether it considered him guilty of the
charged offenses, and increased the likelihood of ‘confusing the issues’
[citation], because the jury had to determine whether the uncharged offenses
had occurred.” (People v. Ewoldt (1994) 7 Cal.4th 380, 405; People v. Spector (2011) 194 Cal.4th 1335, 1390.)
The
trial court also correctly decided that the prior incident was not
inflammatory. The evidence of the
unwanted sexual touching of Melissa F., an adult, was not inflammatory compared
to similar unwanted sexual touches committed against the teenage girls. (See People
v. Hernandez (2011) 200 Cal.App.4th 953 [holding evidence of defendant’s
uncharged sex offenses against his daughters, minors during most of offenses,
not so inflammatory to render it inadmissible at trial for continuous sexual
abuse of his granddaughter, a child under the age of 14 years].) On the other hand, here appellant was not
convicted of the sexual offense committed against Melissa F. and the jury was
aware that the offense was uncharged, creating a risk the jury would use the
evidence to punish appellant for that uncharged offense. However, review of counsel’s arguments and
the jury instructions leaves us satisfied that the jury was not led to punish
appellant for the uncharged act nor are we persuaded that they were mislead or
confused. The trial court properly
instructed the jury to use the Melissa F. testimony only for proper, limited
purposes and “[w]e presume jurors ‘generally understand and follow
instructions.’ [Citation.]” (People
v. Myles (2012) 53 Cal.4th 1181, 1212.)
Finally,
we find no abuse of discretion in the trial court’s finding that admission
would not involve an undue consumption of time.
This single witness provided testimony about one highly relevant
incident and demanded relatively little of the court’s time. (People
v. Castain (1981) 122 Cal.App.3d 138, 142.)
In arguing error, appellant relies
on People v. Harris (1998) 60
Cal.App.4th 727. There, the court found
the prior offense was “totally dissimilar to the current allegations” and
concluded that “[t]he lack of any significant probative value on a disputed
issue weighs strongly in favor of excluding this evidence.” (Id.
at pp. 740-741.) Unlike
similar” and highly probative to crucial issues in the case. Additionally, our Supreme Court distinguished
Harris aptly in People v. Loy, and its reasoning applies to this case. “[T]he Court of Appeal [in
section 1108. But Harris’s
facts were entirely different from those here.
There, the prior offense was forcible and the evidence of it was
‘inflammatory in the extreme.’ [Citation.] The charged sexual offenses were, by
contrast, not forcible but involved breaches of trust. Thus the charged offenses were ‘of a
significantly different nature and quality than the violent and perverse attack
on a stranger that was described to the jury.’
[Citation.] Moreover, ‘[t]he
facts of the prior conduct were redacted to a point that the jury must have
come away with a misleading impression of what happened. . . .’ [Citation.]
The prior offense occurred 23 years before the charged offenses, a
factor the Court of Appeal found weighed in favor of exclusion. [Citation.]
Those circumstances do not exist here.
Nothing in Harris compels the conclusion that the court abused
its discretion in admitting the evidence here.”
(People v. Loy,
added.) We reach the same conclusion
based on the facts and circumstances of this case.
Sentencing
As
noted above, the January 26, 2012 resentencing granted appellant the relief
requested in appellant’s opening brief on the sentencing error previously
brought to our attention. Therefore,
this issue is now moot.
IV.
DISPOSITION
The
judgment is affirmed.
_________________________
RUVOLO,
P. J.
We concur:
_________________________
REARDON, J.
_________________________
RIVERA, J.
Code unless otherwise indicated.
constitutional or other reasons, and thus rendered the evidence of appellant’s
uncharged sexual offense inadmissible as character evidence under section 1101,
subdivision (a), the evidence would still be relevant as evidence to prove
motive, opportunity, intent, preparation, plan, or absence of mistake or
accident and thus not rendered inadmissible under section 1101, subdivision (a)
as explicitly provided in section 1101, subdivision (b). However, because the trial court did not err
in finding the evidence admissible under section 1108, we need not discuss its
admissibility under section 1101.
