P. v. Holmes
Filed 3/22/13 P. v. Holmes CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
DERREK CLINTON
HOLMES,
Defendant
and Appellant.
E054753
(Super.Ct.No.
RIF10003435)
OPINION
APPEAL
from the Superior Court
of
County. Thomas Kelly,
Judge. (Retired judge of the Santa Cruz
Super. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.
Brett
Harding Duxbury, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and
Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
A
jury convicted defendant, Derrek Holmes, of two counts of
10 years old or younger (Pen. Code, § 288.7, subd. (a)). He was sentenced to prison for 25 years to
life and appeals, claiming evidence was improperly admitted and the jury was
improperly instructed. We reject his
contentions and affirm.
The
victim was the four-year-old daughter of defendant’s stepdaughter and had
something of a grandfather/granddaughter relationship with him, although she
had not been to the house he shared with his wife and two children for some
time before her May, 2010 weekend with them.
That month, the victim reported to her mother that defendant had kissed her
on the lips during the weekend. The
mother forbade the victim to go to the house again. In July 2010, the victim told her mother that
about four or five months before the kiss, defendant had put his penis in her
“coo coo†and it had hurt and the sexual contact between them had occurred twice. In a pretextual call set up by the police
between the mother and defendant, defendant admitted to molesting the victim,
as will be described in greater detail elsewhere in this opinion. In an interview with the police, defendant
admitted to rubbing his penis on the “lips of [the victim’s] vagina†and on the
slit and masturbating to ejaculation one time.
He wrote letters of apology, which were introduced into evidence. The victim testified at trial that defendant
touched her “coo coo†with his penis on two occasions—the first time did not
hurt, but the second time did. The first
time, he ejaculated. She made other
statements during her Riverside County Child Assessment Team (RCAT) interview,
which will be described elsewhere in this opinion.
Issues and Discussion
1. Admission
of Evidence Code section 1108 Evidence
As
part of their written motions in limine, the People sought permission to
introduce evidence, pursuant to Evidence Code section 1108,
sexual intercourse with his then 6-10 year old stepdaughter, who is victim’s
mother. At the hearing on this motion,
defense counsel represented to the trial court that the mother had said
and molested her. . . . [H]e ejaculated inside of
her. It was almost every day, some type
of contact.†Defense counsel argued that
since the issue in this trial was whether the victim’s labia had been manipulated
by defendant, having the mother testify that defendant “actually penetrate[d]
her and had intercourse with her and ejaculated inside her†was highly
prejudicial and was not similar in nature to the acts the victim alleged
defendant had perpetrated on her.
Counsel argued that hearing this evidence “would cause the jurors to
believe there was penetration [with the victim] even though there’s not actual
evidence of it . . . .â€
Contradicting defense counsel’s representation as to the mother’s prior
statements, the prosecutor said that the mother reported that defendant “never
fully penetrated her, but, . . . because she was so young
and small, . . . he wouldn’t put [his penis] in all the
way. [¶] . . . [¶] S[he s]ays it would not hurt her or leave any
injury, and she also indicated that he would ejaculate either or her or in
her.†The trial court ruled that the
evidence would be admitted because it was highly relevant and “[there’s] a
clear preference on the part of the Legislature for this sort of information to
come in. It closely parallels what’s
charged here. [¶] The degree of penetration I don’t see as that
significant . . . because . . . we’re
talking about two episodes with [the victim], and the mother has a multi-year
relationship. Who’s to say what would
have happened if the [victim] had had more time with defendant? It could have easily gone as far as the
conduct [the] mother experienced. In any
event, I suspect at the beginning of [the] mother’s involvement, it was similar
behavior.†The court added that the
evidence would not unduly consume time, there was insufficient prejudice to
exclude it, it was similar to the behavior alleged by the victim, it was no
more inflammatory that the current charges and it would not mislead the jury.
The
mother testified at trial that between the time she was four or five to the
time she was nine or ten, while living with her mother, who was married to
defendant, twenty to forty times, defendant put his penis in her vagina as far
as it would go without hurting her, rubbed her with it and masturbated, and
ejaculated on her. During the mother’s
pretext call with defendant, a recording of which was played for the jury, he
did not deny molesting her when she was young.
At one point, the mother said to defendant, “You did it to me. Why would you do it to my child, though?
. . . That’s not right.â€
Defendant responded, “You know, it’s not.†At another point, the mother said,
“ . . . I know you did it to me, I just never thought this
would happen to my child like, . . . I just can’t trust no
one no more.†Defendant responded,
“Yeah, you know.†Later, defendant said,
“I’m confessing to you because you already know the situation.†He also said, “[N]ever in my wildest dreams
would I ever thought I would be going that route again.†He then said, “ . . . I
have a sickness. . . . [¶] . . .
[¶] And, you know, the thing about it is
it was just y’all two. [¶]
. . . [¶] Just
y’all two. I mean, it has never been
nobody else.†The mother then asked
defendant, “ . . . [D]id [the victim] remind you of me or
something?†to which defendant responded, “It’s a possibility.â€
Similarly,
in his recorded interview with the police, which was also played for the jury,
defendant, after admitting that he rubbed his penis on the victim’s genital
lips and “on the slit†while masturbating to ejaculation, agreed with the
interviewer that “this has happened with [the mother] also†when the latter was
around six years old. He admitted
engaging in the same type of activity with the mother, i.e., “rubbing [his
penis] on the slit of her vagina.†In
explaining to the interviewer the nature of his problem, defendant said,
“ . . . I don’t have urges with no one else. [¶]
Just [the victim] and . . . [¶]
. . . [¶] [the
mother]. [¶] [I]t just happened this time with them, um,
prior with her and . . . this period with her.
. . . [T]here’s really no urges, I don’t know why them
two. . . . [M]aybe it’s . . . their
resemblance to my ex-wife.[
. . . [¶] . . . [¶] [T]here’s a strong resemblance
between . . . them two, and, my ex-wife. . . .
[M]aybe that’s the reason.†He said
during his phone call with the mother, he apologized to her for molesting her
and the victim.
Defendant
here claims that the trial court’s ruling violated his federal due process
rights because the evidence he had molested the mother was inadmissible under
Evidence Code section 352. He
acknowledged that he did not specifically object below on the basis of the
federal constitution, but he asserts that such an objection is implied because
Evidence Code section 1108 refers to Evidence Code section 352, citing
435. Actually, Partida holds, “If the [trial] court overrules [the defendant’s]
objection, [defendant] may argue on appeal that the evidence should have been
excluded for the reason asserted at trial,
but [the defendant] may not argue on appeal that the [trial] court should have
excluded the evidence for a reason different from the one stated at trial. [The defendant] cannot argue the [trial]
court erred in failing to conduct an analysis it was not asked to conduct. [¶] . . . If [the
defendant] had believed at trial . . . that the trial court
should engage in some sort of due process analysis that was different from
the . . . 352 analysis, he could have, and should have,
made this clear as part of his trial objection. . . .
[H]e may not argue on appeal that due process required exclusion of the
evidence for reasons other than those articulated in
his . . . 352 argument.
[¶] . . . [A] defendant may make a very narrow due
process argument on appeal. He may argue
that the asserted error in admitting the evidence over
his . . . 352 objection had the additional legal
consequence of violating due process. . . . [¶]
. . . [¶] . . . [T]he admission of
evidence, even if error under state law, violates due process only if it makes
the trial fundamentally unfair. . . . To the extent, if
any, that [the] defendant may be understood to argue that
evidence for a reason different from his trial objection, that claim is
forfeited. . . . [¶] . . . [¶]
. . . Here, the trial court was called upon to decide
whether the evidence was more prejudicial than probative. It did so.
Whether its ruling was erroneous is for the reviewing court to
decide. If the reviewing court finds
error, it must also decide the consequences of that error,
including . . . whether the error was so serious as to violate
due process. . . . [¶] . . . [I]f a
defendant who objected on . . . 352 grounds argues on
appeal that the [trial] court erred in admitting the evidence for a reason
different than that it was more prejudicial than probative, an additional trial
invocation of due process or some other general principle that did not
reasonably apprise the trial court of the analysis it was being asked to
undertake would not be sufficient to preserve the argument. [¶] . . . [¶]
. . . [T]o the extent [the] defendant asserts a different
theory for exclusion than he asserted at trial, that assertion is not
cognizable. . . . [¶] . . . [¶] The Court of Appeal held that the trial court
abused its discretion under . . . 352 in admitting some of
the . . . evidence [at issue]. . . .
[The d]efendant argues that this error was so serious as to violate due
process. But the admission of evidence,
even if erroneous under state law, results in a due process violation only if
it makes the trial fundamentally unfair.†(Id.
at pp. 435-439, fns. omitted, italics added.)
Therefore,
we must begin with the question whether the trial court here abused its
discretion in admitting evidence of defendant’s molestation of the mother. We cannot agree with defendant that it did. Defendant reasserts the point he made below
that because the mother testified that defendant inserted his penis in her
vagina, his conduct was dissimilar from the conduct he engaged in with the
victim. However, the victim stated
repeatedly in her RCAT interview that, on two separate occasions, defendant put
his penis inside her, and that he put
it in her “business,†where she goes
potty, or her “coo coo.†It remained for
the jury whether to accept these statements as true and to determine whether
defendant “penetrate[ed], no matter how slight[ly], . . . the
[victim’s] vagina or genitalia.â€
name="_ftnref4" title="">[4] Therefore, the mother’s statements were not
substantially different from the victim’s.
Additionally, according to defendant’s statements to the police
interviewer, his conduct with both was identical, i.e., rubbing his penis on
the slit of their vaginas. The jury was,
of course, free to credit these admissions and to convict defendant on
them. If only they had been admitted,
and none of the mother’s statements, we cannot imagine in what way defendant
would have been less prejudiced. As far
as the number of times this occurred with the mother, we agree with the trial
court that the difference between this and the number of times it occurred with
the victim could easily have been explained by the fact that defendant had very
limited access to the victim during the few months that these incidents
occurred, and no access before and after, while he had unlimited access to the
mother during the years she cohabitated with him and her mother.
Finally,
we pause to observe how difficult, if not impossible, it would have been for
the trial court to separate defendant’s admissions to the mother and the police
interviewer of molesting the mother from his admissions concerning the
victim. It is for this reason that we
have extensively quoted those statements above.
Having
concluded that the trial court did not abuse its discretion in admitting the
evidence concerning defendant’s molestation of the mother, we necessarily
reject his contention that the trial court committed error which made the trial
fundamentally unfair. 2. Jury
Instruction on Evidence Code section 1108 Evidence
The
jury was given the standard instruction (Judicial Council of California
Criminal Jury Instructions, CALCRIM No. 1191) on the evidence of defendant’s
molestation of the mother, including the provision, “If you decide that the defendant committed [sexual intercourse with the mother, who was 10 years old or younger],
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] . . .
along with all the other evidence. It is
not sufficient by itself to prove that the defendant is guilty of [the charged
offenses]. The People must still prove
each charge beyond a reasonable doubt.â€
Defendant
here contends that the italicized portion of this standard instruction violated
his federal constitutional right to due
process. Defendant appears to
concede that in People v. Falsetta
(1999) 21 Cal.4th 903, 917,
name="_ftnref5" title="">[5] the California Supreme Court concluded that
Evidence Code section 1108’s provision for the admission of evidence to show
propensity is not a violation of due process and that we are bound by that
holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450.) Therefore, his argument is better
addressed to a court that is not bound by Falsetta.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
KING
J.
name="_ftn1" title=""> [1] That section provides in pertinent part, “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 Section 352.†(Evid. Code, §
1108, subd. (a).)
name="_ftn2" title=""> [2] The mother did not testify at the preliminary
hearing, so, we assume that the parties are referring to statements she made in
her pretext phone interview with defendant.
