P. v. Foulk



















Filed 6/20/12 P. v. Foulk CA2/3











NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS







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opinion has not been certified for publication or ordered published for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



SECOND APPELLATE
DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. CLAUDE EDWARD FOULK, Jr. Defendant and Appellant.

B231469 (Los Angeles County Super. Ct. No. NA084803)

APPEAL
from a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County,

James Pierce, Judge. Affirmed.

Verna
Wefald, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and
Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.



_________________________



>

Appellant
Claude Edward Foulk, Jr., appeals from the judgment entered following his convictions by jury on two
counts of forcible lewd act upon a child
(Pen. Code, § 288, subd. (b)(1); counts 1 & 2), 13 counts of href="http://www.mcmillanlaw.com/">forcible oral copulation (former Pen.
Code, § 288a, subd. (c); counts 3, 4, 6, 7, 9, 10, 12, 13, 15, 16, 18, 19
& 21), seven counts of forcible oral copulation (former Pen. Code, § 288a,
subd. (c)(2); counts 22, 24, 25, 27, 28, 30 & 31), seven counts of forcible
sodomy (former Pen. Code, § 286, subd. (c); counts 5, 8, 11, 14, 17, 20 &
23), and two counts of forcible sodomy (former Pen. Code, § 286, subd. (c)(2);
counts 26 & 29), with, as to each of counts 1 through 26, a true finding as
to a Penal Code section 803, subdivision (f)(1) statute of limitations
allegation. The court sentenced
appellant to prison for 248 years. We
affirm the judgment.

>FACTUAL SUMMARY

1. >People’s Evidence.

Viewed
in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the
sufficiency of which is undisputed, established appellant committed the above
31 sexual offenses (counts 1 through 31) against J. F. (J.) from October 18,
1992, through October 17, 2002, inclusive,href="#_ftn1" name="_ftnref1" title="">[1] i.e., when J. was between
the ages of 9 years and 21 years.
Appellant adopted J. when he was 12 or 13 years old. The evidence of the present offenses (other
than the uncharged offense evidence) was the testimony of J., who was about 28
years old at the time of his 2011 trial testimony.

The People also presented
evidence of uncharged forcible sexual offenses, i.e., appellant repeatedly
committed forcible sexual crimes against four victims. In particular, Steven B. (Steven), who was about 58 years old at time
of trial, testified the abuse occurred from about 1966 through 1970, i.e., when
he was between the ages of 8 and 12 years.
Mark G. (Mark), who was about 58 years old at time of trial, testified
the abuse occurred from about 1970 through 1972. Donald M. (Donald), who was about 46 years
old at time of trial, testified the abuse occurred from about 1974 through
1986, i.e., when he was between the ages of 9 and 21 years. Donald also testified that, during this time,
appellant abused another boy as well as Jeff Foulk (Jeff). Richard W. (Richard), who was about 46 years
old at time of trial, testified the abuse occurred from about 1975 through
1976, i.e., when he was between the ages of 10 and 11 years.

In
defense, appellant, who had been executive director of Napa State Hospital,
denied he committed the offenses. Jeff,
a 41-year-old drug addict who had been imprisoned for drug possession and petty
theft, testified appellant adopted Jeff when he was eight years old. Appellant never sexually abused Jeff or
Donald.

>ISSUES

Appellant claims (1) the admission of the evidence of
four remote uncharged offenses violated his right
to due process, and (2) his sentence constituted cruel and unusual
punishment.

>DISCUSSION

1. The Admission of the Uncharged
Offense Evidence Was Proper.

a. >Pertinent Facts.

On
November 3, 2010, the People filed a motion to admit uncharged offense evidence
pursuant to Evidence Code sections 1101, subdivision (b) and 1108, and Penal
Code section 803, subdivision (f)(1).href="#_ftn2" name="_ftnref2" title="">[2] The written motion indicated police
investigation revealed appellant had sexually molested 11 victims. The People wished to introduce evidence as to
six, discussed below.

According
to Stephen, appellant molested him from 1966 through 1971, when Stephen was
“between the ages of 7 to approximately 11” years old. Appellant was Stephen’s step-uncle. The abuse began when Stephen used to stay at
appellant’s parents’ home. Appellant
began touching Stephen’s penis over his clothing. This escalated to appellant orally copulating
him and Stephen being forced to orally copulate appellant. Appellant soon began sodomizing Stephen and
requiring Stephen to sodomize appellant.
Appellant told Stephen not to tell anyone because it was their secret
and appellant was his lover. Appellant took
Stephen on trips and took nude photographs of Stephen.

According
to Mark, appellant molested him from 1970 through 1972, when Mark was 11 to 12
years old. Mark was appellant’s
cousin. The abuse started when appellant
fondled him under a table when they went to dinner. Appellant would let Mark and his brother
participate in activities like motor biking, shooting guns, and playing in the
mountains when appellant would take them to his cabin in Lake Arrowhead. Appellant would tell them scary stories at
night, then offer to let them sleep in his bed.

When
Mark slept in appellant’s bed, appellant would fondle Mark’s penis over his
clothing, and this progressed to appellant touching Mark’s skin. As Mark continued visiting the cabin,
appellant began orally copulating him and making Mark orally copulate
appellant. Appellant kissed Mark on the
mouth. Mark claimed the abuse continued
at appellant’s home in Long Beach and included oral copulation. Appellant threatened to tell Mark’s friends
what Mark was doing.

According
to Donald, he met appellant at the Children’s Hospital in Los Angeles, where
Donald was being treated for diabetes.
Appellant molested him from the time Donald was nine years old until he
was 21 years old. Donald came from a
troubled home and his mother was having financial problems. She shared this information with appellant
and he offered to have Donald live with him and take care of his medical needs.

Donald
lived with appellant in North Hollywood and later in Long Beach. When they lived in Long Beach, a boy named
Brian lived with them. Brian’s family
was experiencing financial hardship.
Appellant began physically abusing Donald first. Appellant would tell him to remove his
clothes and, if Donald resisted, appellant would beat him. Shortly thereafter, appellant began forcing
Donald to orally copulate him and, using Vaseline, sodomizing him. Appellant sexually abused Brian.

A
neighbor contacted the Department of Children and Family Services (DCFS) to
report the noise from the beatings, but appellant lied to the DCFS
representatives and told Donald and Brian that appellant would kill them if
they ever disclosed the abuse. When
Donald was in the fifth grade, he told a school official about the abuse, but
appellant came to school and told them Donald had behavioral problems. The abuse continued until Donald was 21 years
old. The abuse included appellant taking
nude photographs of Donald and Brian and plying them with alcohol. Brian ran away when he was 15 years old.

Shortly
thereafter, appellant began looking into adopting a boy and told Donald to pick
any boy he wanted. A boy named Jeff, who
was about 9 to 10 years old, began living with Donald and appellant. Appellant wanted to have sexual relations
with Jeff and Donald. Donald refused,
and appellant punched him in the face.
Donald tried to go back to his mother’s house but appellant came, picked
him up, and beat him. Appellant forced
Donald to engage in oral copulation at least four times a month and sodomized
him at least twice a month. Appellant
would buy Donald gifts and take him on trips.
When Donald was 20 years old, he disclosed to a counselor that appellant
had abused him, but appellant claimed Donald was lying. Donald ran away when he was 21 years
old. When Donald was 23 years old,
appellant contacted him and told him that appellant had adopted a boy named
John.

According
to Richard, appellant molested him from 1975 through 1976, when Richard was 10
years old. Richard and Donald were
friends, and Donald lived with appellant.
Appellant would have Richard sleep in appellant’s bed. On one such occasion, appellant turned
Richard on his back, pulled down Richard’s underwear, and put Richard’s penis
in his mouth. Appellant later orally
copulated Richard in appellant’s Lake Arrowhead cabin, to which appellant
frequently took children. During a later
incident at the cabin, appellant orally copulated Richard and tried to sodomize
him. Appellant masturbated in front of
all the boys. Richard continued going to
appellant’s home because there were fun things to do there that his parents
could not afford, and Richard did not want anyone to know what had happened to
him. Andrew B., Brian B., and Brock D.
were additional victims.

The
written motion also indicated as follows.
J., had been in and out of foster homes since he was a baby. He was placed with appellant in 1992 when J.
was nine years old. Appellant bought him
gifts. About a year later, appellant
began rubbing him over his clothes, then rapidly progressed to oral copulation
and sodomy. Appellant would use Vaseline
when sodomizing him. Appellant told J.
not to tell anyone or he would return him to his foster home and take back the
gifts he had purchased for him. The
abuse continued until 2002 when J. was “[22]” years old. Appellant threatened to withhold financial
support from J. and told him appellant had connections with law enforcement
personnel who would find J. if he tried to leave.

In the
written motion, the People argued there were many similarities in the way J.
and the previously mentioned victims were targeted and abused, and testimony
from six of the seven victims was necessary to corroborate J. The similarities included the targeted age
group and appellant’s modus operandi. The modus operandi included a grooming
process, telling a victim not to disclose the abuse, giving expensive gifts,
taking victims on trips, and taking photographs of the victims.

In the
written motion, the People also argued as follows. The uncharged offense evidence was admissible
pursuant to Evidence Code section 1108.
The People were seeking to prove a timeline of abuse of young boys from
1966 through 2002. There was a break
from 1991 to 1992, but, during that period, appellant was in the process of
having J. placed with him. Absent
evidence of the continuum of abuse, jurors might think there was a time
appellant stopped molesting boys and jurors might question the veracity of
witnesses.

The
uncharged offense evidence was also admissible under Evidence Code section
1101, subdivision (b) on the issues of motive, opportunity, intent,
preparation, common scheme or plan, and duress.
The charged and uncharged acts were crimes of opportunity, and appellant
targeted young boys, luring them with adventure, toys, gifts, trips and
alcohol. The victims were family
members, boys he received because of their medical needs, or boys befriended by
his foster children. Appellant sought J.
for placement with him and, ultimately, sought to adopt him. Appellant used gifts and threats to prevent
the victims from disclosing the abuse.
The only dissimilarity pertained to Andrew, whom appellant did not have
sufficient time to groom.

The written motion also argued admission of evidence of
the uncharged offenses was not barred by Evidence Code section 352. The victims’ evidence was independent because
none of them knew, lived with, or were relatives of, J. Most of the victims would testify to brief
periods of abuse. The extent of Donald’s
testimony would essentially be the same as his href="http://www.fearnotlaw.com/">preliminary hearing testimony. There was no danger of undue prejudice,
confusion of issues, or a misled jury, especially since the court could give
limiting instructions.

At the November 18, 2010, hearing on the People’s motion,
the People observed that, as to the above seven victims, i.e., Stephen, Mark,
Donald, Richard, Andrew, Brian, and Brock, the prosecutor was seeking to admit
testimony from only six, because the prosecutor was proffering testimony from
Andrew or Brock, but not from both.

Appellant
argued, in pertinent part, as follows.
Donald and Richard testified at the preliminary hearing, and their
testimony provided all the corroboration needed at trial. The present case was a credibility
contest. The lengthy time frame of the
offenses precluded appellant from defending himself other than by a general
denial, and each additional witness beyond Donald and Richard was more
prejudicial than probative and precluded appellant from receiving a href="http://www.mcmillanlaw.com/">fair trial.

The
court ruled as follows. The court
excluded, under Evidence Code section 352, testimony from Andrew and Brock on
the grounds it would involve undue consumption of time, and the incidents
involving those two witnesses did not fit a pattern like the incidents
involving the other witnesses. Testimony
from the remaining five witnesses was relevant; however, to avoid undue
prejudice, the People could present testimony from only four. The court indicated its ruling was the best
way to balance the parties’ interests.

The
record contains an undated written motion by appellant, i.e., a “Motion to
exclude prior acts under U.S. Constitution, due process clause.” In the written motion, appellant argued the
People were proffering testimony from four witnesses. Appellant urged their testimony was
inadmissible because, despite California Supreme Court authority to the
contrary, propensity evidence violates
the federal due process clause, and the incidents to which the four witnesses
would testify were remote. On January
24, 2011, the court, after considering the motion, stated its previous ruling
would stand.

b. Analysis.

Appellant claims the admission of evidence of four allegedly
remote uncharged offenses violated his right to due process. Appellant argues Evidence Code section 1108,
on its face, violates his right to due process.
Appellant asserts the United States Supreme Court has not yet decided
that issue, but appellant concedes our Supreme Court, in >People v. Falsetta (1999)
21 Cal.4th 903 (Falsetta), has rejected his argument. Appellant also concedes we are bound
to follow Falsetta by >Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455. We
accept the concession.

Appellant
also argues the trial court abused its discretion by admitting testimony of the
four witnesses “to prove propensity and to provide the [Penal Code section 803,
subdivision (f)] corroboration for the statute of limitations problem.” He asserts the minimal probative value of the
testimony was outweighed by its undue prejudice; four witnesses were
“overkill”; if, as appellant had requested, only Donald and Richard had been
permitted to testify at trial, it was reasonably probable appellant would not have
been convicted of any charge; and the admission of the testimony of the four
witnesses violated appellant’s right to due process.

There
is no dispute the testimony of the four witnesses who testified at trial
(Stephen, Mark, Donald, and Richard) constituted Evidence Code section 1108
propensity evidence. As for the Penal
Code section 803, subdivision (f)(1) statute of limitations allegation
pertaining to counts 1 through 26,href="#_ftn3"
name="_ftnref3" title="">[3] appellant did not dispute
below, and does not dispute here, the testimony of Donald and Richard was
admissible as propensity evidence to prove the corroboration requirement. Appellant in essence argues the trial court
abused its discretion by failing to exclude under Evidence Code section 352 the
testimony of Stephen and Mark as propensity evidence to prove the corroboration
requirement.

However,
an appellate court applies the abuse of discretion standard of review to any
ruling by a trial court concerning the application of Evidence Code section
352. (Cf. People v. Waidla (2000) 22 Cal.4th 690, 723-724.) Moreover, when ruling on a section 352
motion, a trial court need not expressly weigh prejudice against probative
value, or even expressly state it has done so.
All that is required is that the record demonstrate the trial court
understood and fulfilled its responsibilities under section 352. (People v. Williams (1997) 16 Cal.4th
153, 213.)

In the
present case, the trial court, which read the People’s written motion, heard
the argument of the parties, and was mindful of the statute of limitations
issue, reduced to four the number of witnesses who would testify concerning
uncharged offenses. None of the
uncharged offenses were remote; instead, they were evidence of a continuum of
sexual abuse by appellant, who denied committing any offense. The record reflects the trial court
understood and fulfilled its responsibilities under Evidence Code section
352. Moreover, the application of
ordinary rules of evidence, as here, did not impermissibly infringe on
appellant’s right to due process. (Cf. >People v. Fudge (1994) 7 Cal.4th 1075,
1102-1103.)

Further,
even if the trial court abused its discretion under Evidence Code section 352
as to counts 1 through 26 by admitting propensity testimony from Stephen and
Mark to satisfy the corroboration requirement, the testimony of Donald and
Richard provided clear and convincing evidence corroborating J.’s allegations
as to those counts. The testimony of
Stephen and Mark was propensity evidence
admissible, along with the rest of the evidence, to prove beyond a reasonable
doubt the substantive offenses. Their
testimony was also admissible on the issues of motive, opportunity, intent,
preparation, common scheme, and plan under Evidence Code section 1101,
subdivision (b), to prove beyond a reasonable doubt the substantive
offenses. No prejudicial error
occurred. (People v. Watson (1956) 46 Cal.2d 818, 836.)

As for
counts 27 through 31, they did not contain a Penal Code section 803,
subdivision (f)(1) statute of limitations allegation; therefore, they were not
subject to the corroboration requirement and no trial court error relating to a
statute of limitations occurred. The
testimony of Stephen and Mark was admissible as propensity evidence, and as evidence
under Evidence Code section 1101, subdivision (b), as previously mentioned, to
prove beyond a reasonable doubt the substantive offenses, the trial court
fulfilled its responsibilities under Evidence Code section 352, and no
violation of appellant’s right to due process occurred.

2. Appellant’s
Sentence Was Not Cruel or Unusual Punishment.

During sentencing, the court indicated as follows. Appellant was a monster and a
manipulator. He did not have a life
without a criminal record, instead, he merely had a life without criminal
convictions. Appellant had manipulated
the system to obtain a child for sex, it was the worst case the court had seen
in 20 years, and the testimony was horrific.
The court later stated, “. . . I want the court of appeals . . . to know
how aggravated this case is. The People
could have charged 100 counts, and you’d be facing 800 years.” The court, pursuant to Penal Code section
667.6, subdivision (d), imposed full, consecutive, eight-year upper terms on
each of the 31 counts, resulting in a prison sentence of 248 years. Appellant did not object to the sentence on
the ground the sentence constituted cruel or unusual punishment.

Appellant claims his sentence was cruel and/or unusual
punishment under the federal and state Constitutions. He argues “a sentence of 248 years for
someone with no prior record . . . is cruel and unusual punishment.” The claim is unavailing. Appellant waived the issues by failing to
raise them below. (Cf. People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7; >People v. DeJesus (1995)
38 Cal.App.4th 1, 27.)

Moreover, we reject
appellant’s claim on its merits. It is immaterial appellant
cannot serve his sentence during his lifetime.
In practical effect, he is in no different position than a defendant who
has received a sentence of life without the possibility of parole, i.e., he
will be in prison for the rest of his life.
Imposition of a sentence of life without the possibility of parole in an
appropriate case does not constitute cruel or unusual punishment under the
state or federal Constitution. Further,
a sentence such as the one imposed in this case serves the valid penological
purposes of reflecting society’s condemnation of appellant’s conduct and
providing a strong psychological deterrent to those considering engaging in
such conduct. (Cf. People v. Byrd (2001) 89 Cal.App.4th 1373, 1383.)href="#_ftn4" name="_ftnref4" title="">[4]

>DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS









KITCHING,
J.



We concur:









KLEIN,
P. J.









CROSKEY, J.