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Court of Appeal, Fourth District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. Bobby Eugene DAVIS, Defendant and Appellant.

No. E021991.

Decided: May 11, 1999

Davis Joseph Macher, for Defendant and Appellant. Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, William M. Wood, Supervising Deputy Attorney General, and Carl H. Horst, Deputy Attorney General, for Plaintiff and Respondent.


1. Introduction

A jury convicted defendant Bobby Eugene Davis (Davis) of committing a lewd act upon a child under the age of 14 (Pen.Code, § 288, subd. (a)).   The trial court found true the allegation that Davis had two prior convictions of Penal Code section 288, subdivisions (a) and (b).   The trial court sentenced Davis to life imprisonment with a minimum term of 25 years, plus a five-year enhancement for the prior convictions under Penal Code section 667, subdivision (a)(1).

Davis appeals, alleging trial court erred in admitting evidence of prior, uncharged sexual acts with children under 14 years of age.

We reject Davis's appeal because we find that the trial court did not abuse its discretion under Evidence Code section 352 when it admitted the prior, uncharged sexual offenses.   We also conclude, as argued by the Attorney General, that the sentence imposed by the trial court was unauthorized and we modify it accordingly.

2. Facts

The six-year-old boy of a neighbor of Davis alleged that in March 1997 Davis had invited the child to sit on his lap, at which time Davis rubbed the boy's crotch.   At the December 1997 trial, the trial court admitted evidence from the natural child and two stepchildren of Davis who testified that Davis had molested them when they were young.   Davis's natural child, a boy, testified that Davis molested him 13 years earlier, when he was four or five years old.   One stepchild, a girl, testified that Davis molested her and a neighbor girlfriend 14 years earlier, when they were six or seven years old.   The second stepchild, a girl, testified she was molested 19 years earlier, when she was also six years old.   In at least two of the incidents, the children testified that Davis asked the child to sit on his lap and that the molestation followed.   As a result of the molestation of his natural son, Davis was convicted in 1987 of violations of Penal Code section 288, subdivisions (a) and (b).

The trial court admitted the testimony of Davis's son and the uncharged claims of molestation of his stepchildren under Evidence Code sections 1 1101, subdivision (b), and 1108.   Davis argued that the prior acts were not sufficiently similar to the charges in this case to allow admission of the evidence under section 1108 and that since intent was not an issue in this case, the evidence was not admissible under Evidence Code section 1101, subdivision (b).

Davis did not testify, but defended the case on the basis that the accusations of the child victim were mistaken.

3. Evidence Properly Admitted Under Section 1108

Section 1108 2 limits the application of section 1101 3 in criminal cases involving sexual offenses.   Section 1108 authorizes admission of evidence of another sexual offense of the accused limited only by the trial judge's discretion to exclude the evidence under section 352.

 The purpose of the 1995 legislation adopting section 1108 is set out in the Historical and Statutory Notes pertaining to that section, which provide in part:  “ ‘During the hearing before the Assembly Committee on Public Safety, the language of the new S[ection] 1108 of the Evidence Code was amended to provide explicitly that evidence of other offenses within the scope of the section is not subject to S[ection] 1101's prohibition of evidence of character or disposition.   This makes it clear that S[ection] 1108 permits courts to admit such evidence on a common sense basis-without a precondition of finding a “non-character” purpose for which it is relevant-and permits rational assessment by juries of evidence so admitted.   This includes consideration of the other sexual offenses as evidence of the defendant's disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense․  [A]dmission and consideration of evidence of other sexual offenses to show character or disposition w[ill] be no longer treated as intrinsically prejudicial or impermissible.   Hence, evidence offered under S [ection] 1108 c [an] not be excluded on the basis of S[ection] 352 unless “the probability that its admission will ․ create substantial danger of undue prejudice” (or other adverse effects identified in S[ection] 352) substantially outweigh[ ] its probative value concerning the defendant's disposition to commit the sexual offense or offenses with which he is charged and other matters relevant to the determination of the charge.   As with other forms of relevant evidence that are not subject to any exclusionary principle, the presumption will be in favor of admission.”

The Legislature has created a presumption of the admissibility of prior sexual offenses when applying section 352 to such evidence.   In this case, Davis argued that the uncharged offenses were highly prejudicial, involved threats of violence, occurred a number of years ago, and involved two stepchildren and a natural child.   In response to that argument, the trial court concluded that section 1108 is constitutional, that in light of the 1987 conviction for two of the offenses the prior sexual offenses were sufficiently current to reflect upon Davis's disposition to commit such crimes, that the evidence should not be excluded under section 352 because the evidence showed a pattern of molestation of young children, some of which occurred while sitting on the lap of Davis.

The trial court also admitted the evidence of the prior uncharged sexual offenses under section 1101, subdivision (b), because the intent with which Davis's act, if proved, was committed is relevant to the charge of a lewd act intended to arouse or gratify the lust or passions or sexual desires of the defendant or child.  (Pen.Code, § 288, subd. (a).)

 The trial court concluded that evidence of Davis's prior sexual offenses should not be excluded under section 352.   We apply the abuse of discretion standard to the trial court's resolution of the probative value of the uncharged sex offenses balanced against the undue prejudice of confusing or misleading the jury.  (People v. Kipp (1998) 18 Cal.4th 349, 371, 75 Cal.Rptr.2d 716, 956 P.2d 1169.)   In that connection the court in People v. Harris (1998) 60 Cal.App.4th 727, 737-739, 70 Cal.Rptr.2d 689, examined a series of factors to determine whether section 352 required the exclusion of prior sexual offenses.   Those factors are:

Inflammatory nature of evidence:  although Davis's earlier sexual offenses involved young children, male and female, they were more threatening and violent and were therefore more inflammatory than the present incident.   Application of this factor would weigh in favor of exclusion.

Probability of confusion:  the evidence was unclear as to whether Davis was punished for his offenses involving his son and stepdaughters.   Both stepdaughters testified they had talked to the police.   Davis's son testified that he had talked to the police and also that he had testified at another trial.   We do not find that their testimony would have led a jury to believe that Davis had avoided punishment for his prior offenses and should now be punished for them.  (See People v. Ewoldt (1994) 7 Cal.4th 380, 405, 27 Cal.Rptr.2d 646, 867 P.2d 757.)   This factor would weigh slightly in favor of admission.

Remoteness:  Davis argued that the offenses testified to by his son and stepdaughters were too remote, extending from 13 to 19 years prior to the trial in this case.   The trial court rejected that argument, finding that Davis was convicted in 1987 of the offenses testified to by his son and spent a period of years in prison.   The charges in this case resulted from acts which occurred within a few years of the end of his prison sentence.   The evidence does not support Davis's argument that he had led a “blameless life” for a substantial period of years after his earlier offenses.   This factor weighs in favor of admission.

Consumption of time:  the testimony of the three children took approximately 40 pages of transcript.   It did not unduly prolong the trial.   This factor weighs in favor of admission.

Probative value:  the trial court found the evidence of prior sexual offenses probative and relevant because it demonstrated a pattern of molestation of children similar in age to the victim in this case, and involved the similar behavior of placing the child on his lap as a part of the molestation.   The trial court also concluded that the evidence was admissible under section 1101, subdivision (b), to show common design or plan and intent to arouse passion or sexual desire.  (Pen.Code, § 288, subd. (a).)  This factor weighs in favor of admission of the evidence.

Weighing the facts summarized above, we do not find that the trial court's ruling admitting the evidence in this case fell outside the bounds of reason.   (People v. De Santis (1992) 2 Cal.4th 1198, 1226, 9 Cal.Rptr.2d 628, 831 P.2d 1210.)

4. Section 1108 Does Not Violate Due Process

Davis filed a supplemental brief noting that the California Supreme Court has granted review in two Court of Appeal cases dealing with section 1108 (People v. Ritson (1998) 63 Cal.App.4th 1276, 74 Cal.Rptr.2d 698 and People v. Falsetta (1998) 64 Cal.App.4th 291, 75 Cal.Rptr.2d 232).   The supplemental brief argues that section 1108 violates the federal and state constitutions.

Davis argues that proof of prior convictions or conduct to show propensity for the charged crime creates the likelihood that a jury will convict based on the defendant's status and thereby eroding the obligation of the People to prove his guilt beyond a reasonable doubt.   Davis also argues that section 1108 violates the equal protection clause of the United States and California Constitutions because it places one charged with sexual offenses in a separate category from all others accused of crimes, a category in which the defendant is not entitled to the same evidentiary rights as others accused of crimes.

The precise arguments raised by Davis were considered by our colleagues in the Third Appellate District in People v. Fitch (1997) 55 Cal.App.4th 172, 177-184, 63 Cal.Rptr.2d 753.   The response to those arguments was detailed and lucid.   It would serve no purpose to repeat them here.   We do note, however, that while the evidence of Davis's prior sexual offenses may have added weight to the People's case, there was other substantial evidence to support his conviction.   The young victim testified.   Much of what he said was confirmed by observations of his mother and sister.

5. People's Request to Modify Sentence is Proper

The People raise, for the first time, their claim that the sentence imposed upon Davis was unauthorized.   They request the sentence be modified from a life term with a minimum of 25 years plus five years to a life term with a minimum of 75 years plus five years.

 Davis does not deny the accuracy of the People's calculation of his term.   Rather he argues that the People waived the sentencing error by not challenging it at the trial level.   While waiver is the general rule, it does not apply where a sentence could not lawfully be imposed under any circumstances, as where the court violates mandatory provisions governing the length of confinement.  (People v. Scott (1994) 9 Cal.4th 331, 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)   Because the applicable statutes contain a mandatory sentence, we find no waiver as a result of the People's failure to raise the issue before the trial court.

 Davis also argues that the People cannot raise a sentencing issue unless they appeal from the decision of the trial court, citing People v. Samuels (1996) 42 Cal.App.4th 1022, 50 Cal.Rptr.2d 157.   In Samuels the People did appeal from the imposition of sentence.   That does not resolve the issue as to whether that is the only way the People can question a sentence.   In People v. Ayon (1996) 46 Cal.App.4th 385, 395, 53 Cal.Rptr.2d 853, our colleagues in Division One of this District concluded that “[e]ven though the Attorney General did not file an appeal here, we consider this contention because it is based on the theory that by failing to impose the mandatory enhancements, the court imposed an unauthorized sentence.   An unauthorized sentence is an ‘exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal.’   (People v. Scott (1994) 9 Cal.4th 331, 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)”  (People v. Ayon, supra, 46 Cal.App.4th at p. 395, fn. 7, 53 Cal.Rptr.2d 853.) Since the People claim that the trial court failed to impose a mandatory sentence, we conclude that they did not need to appeal from the trial court's imposition of sentence.

 Davis argues that the prosecutor's request for sentencing under the one strike law without reference to the three strikes law was an implied motion to dismiss the three strike priors which the trial court impliedly granted by proceeding to sentence him under Penal Code section 667.61.   The trial court does have authority to strike priors.   In People v. Superior Court (Romero ) (1996) 13 Cal.4th 497, 529-530, 53 Cal.Rptr.2d 789, 917 P.2d 628, the Supreme Court held that trial courts have the discretion under section 1385 to strike prior convictions in three strikes cases for good cause, providing its reasons for striking the prior felony conviction are set forth in an order entered upon the minutes as required by Penal Code section 1385, subdivision (a).   There is no indication in this case that the trial court wanted to, or did strike all or any of the prior felony convictions of Davis.

 Having concluded that the People's motion to modify the sentence can be considered, the question is whether the People are correct that the sentence was unauthorized and must be modified.   The People assert that Davis should have been sentenced under both Penal Code section 667.61 and Penal Code section 667, subdivisions (c) through (e).   We agree.   In People v. Ervin (1996) 50 Cal.App.4th 259, 264, 57 Cal.Rptr.2d 728, disapproved on other grounds in People v. Fuhrman (1997) 16 Cal.4th 930, 947, footnote 11, 67 Cal.Rptr.2d 1, 941 P.2d 1189, the Second Appellate District said at p. 264, 57 Cal.Rptr.2d 728:  “[O]ur analysis of the issue before us begins with the presumption that the Legislature was aware of the three strikes law when section 667.61 was enacted [citation]-and ends with the fact that there is no apparent reason in law or logic to believe the Legislature intended either law to operate exclusively of the other.   As relevant to this issue, we do not find any ambiguity in section 667.61 or in any part of the three strikes law, and where, as here, two statues are not inconsistent, both will be given effect.  [Citation.]   What this means is that Ervin, convicted of a violent rape during a burglary, must be sentenced to a term of 15 years to life under section 667.61, subdivision (b), and that his sentence must be doubled under the three strikes law.”

The trial court should have sentenced Davis under both Penal Code section 667.61 and Penal Code section 667, subdivisions (c) through (e).   Under section 667.61, Davis's sentence should be life with a minimum term of 25 years.   Under section 667, Davis's sentence should be life imprisonment with a minimum term of 75 years, (Pen.Code, § 667, subd. (e)(2)(A)(i)).   In either case the sentence should include an additional consecutive five years under Penal Code section 667, subdivision (a).

6. Disposition

The conviction is affirmed.   The sentence is modified as follows:  Davis is sentenced to life in prison with a minimum term of 75 years and to a consecutive additional term of five years for a total of 80 years.   The trial court is directed to correct the abstract of judgment to reflect the modification of the sentence and to send a corrected copy to the Department of Corrections.


FN1. All statutory references are to the Evidence Code unless otherwise specified..  FN1. All statutory references are to the Evidence Code unless otherwise specified.

2.   Section 1108 provides in pertinent part as follows:“(a) 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. “․“(d) As used in this section, the following definitions shall apply:“(1) ‘Sexual offense’ means a crime under the law of a state or of the United States that involved any of the following:“(A) Any conduct proscribed by Section 243.4, 261, 261.5, 262, 264.1, 266c, 286, 288, 288a, 288.2, 288.5, or 289, or subdivision (b), (c), or (d) of Section 311.2 or Section 311.3, 311.4, 311.10, 311.11, 314, or 647.6, of the Penal Code.“(B) Contact, without consent, between any part of the defendant's body or an object and the genitals or anus of another person.“(C) Contact, without consent, between the genitals or anus of the defendant and any part of another person's body.“(D) Deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person.“(E) An attempt or conspiracy to engage in conduct described in this paragraph.“(2) ‘Consent’ shall have the same meaning as provided in Section 261.6 of the Penal Code, except that it does not include consent which is legally ineffective because of the age, mental disorder, or developmental or physical disability of the victim.”

3.   Section 1101:“(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.“(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.“(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”


RAMIREZ, P.J., and WARD, J., concur.

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