THE PEOPLE v. LANCE EDWARD CLARK (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS

A jury convicted Lance Edward Clark (appellant) in count 2 of a violation of Penal Code section 647.6, subdivision (c)(2), felony annoying or molesting a child under the age of 18, having previously been convicted of a lewd act with a child under the age of 14, a 1994 violation of section 288, subdivision (a).   The jury was unable to reach a verdict on the allegation in count 1 that appellant committed a violation of section 288, subdivision (a), molestation of a child under the age of 14, and the trial court declared a mistrial as to that count.¹  In a bifurcated proceeding, the trial court found true the allegation that appellant had a prior serious felony “strike” conviction within the meaning of sections 667 and 1170.12.   The trial court sentenced appellant to the upper term of 12 years in state prison.

On appeal, appellant contends that the trial court abused its discretion when it allowed the testimony of the victim in the 1994 sexual molestation case, including an audiotape of that victim's statement to the police.   He also contends there is insufficient evidence to sustain the conviction.   We disagree and affirm.

T.H., who was 10 years old at the time of trial, testified that appellant touched his genitalia on more than one occasion.   On the most recent occasion, T.H. spent the night with his friend T., appellant's girlfriend's son, and the two boys fell asleep on the living room couches.   Appellant was the only adult in the house;  T.'s mother came home sometime in the middle of the night.   When T.H. awoke in the morning, T. was no longer in the living room, and T.H. found him sleeping with appellant and his mother.   T.H. crawled into the bed between T. and appellant, who appeared to be asleep, but then awoke and began rubbing T.H.'s chest.   Appellant moved his hand down T.H.'s body and began rubbing his penis.   T.H. told appellant to stop and got out of bed and returned to the living room.

According to T.H., appellant had done this to him on a couple of previous occasions, but he did not really understand what appellant was doing at the time because T.H. was “still just little.”   T.H. did not know why he got into bed with appellant after being previously fondled by him.

A couple of days after the last incident, T.H.'s mother asked him if anyone had touched him, and he told her appellant had touched his private parts.   His mother had previously told him that appellant had done something bad to children and that T.H. should be careful around him.

T.H. admitted that his mother caught him fondling himself and was mad at him for doing so.   T.H. denied he made up the story about appellant touching his genitals.

On the evening of August 8, 2007, T.H.'s mother, Ms. H., noticed T.H. rubbing his genitals under a blanket.   She had seen him doing this before and was concerned because he had stayed at appellant's house the night before.   Six months earlier, Ms. H.'s stepfather, a retired California Highway Patrol officer, discovered on the Megan's Law (Pen.Code, § 290.46) Web site that appellant was a registered sex offender.   Ms. H. warned her ex-husband not to leave T.H. alone with appellant,² but she had not mentioned anything to her son at the time because she did not want to scare him.

When T.H. began rubbing himself under the blanket, Ms. H. asked him if anyone had touched his privates.   T.H. ran to his bedroom and began to cry.   He then told her that appellant had molested him.

The next morning, Ms. H. took T.H. to her mother's house and called the police from work.   An officer questioned Ms. H. at her house and then went to her mother's home and questioned T.H. Ms. H. was not present when the officer spoke to T.H.

Police officer Molly Hessler interviewed T.H. on August 9, 2007, and he told her that appellant had touched his private parts.   Detective Damacio Diaz also interviewed T.H. that day, and the taped interview was played for the jury.   In the taped interview, T.H. said that appellant had fondled him on three other occasions at appellant's house.   He later said it may have been five times, beginning when he was seven.

Detective Diaz also interviewed appellant that same day, and the taped interview was played for the jury.   In the taped interview, appellant told officers of his prior conviction, denied that crime, and claimed his confession was coerced.   He also denied that T.H. or T. were in his bed on the night of the incident.   When the officer questioned him further about that, appellant asked for an attorney and the interview ended.

Prior Conviction

In 1994, when he was five years old, R.C. was appellant's stepson.   R.C., 20 years old at the time of trial, testified that appellant touched him inappropriately on four or five occasions during that year.   Appellant would place R.C.'s hand on appellant's penis, he would have R.C. remove his pants, and appellant would touch R.C.'s penis.   Appellant warned R.C. not to tell his mother so that they would not get into trouble.

R.C. recalled being questioned by sheriff's deputies at the time.   In a taped interview, which was played for the jury, R.C., then six years old, said that appellant touched his privates on two occasions.   While R.C. was in his bedroom lying on the bed, appellant would put his hand inside R.C.'s pants and also take his own pants off.   Appellant also fondled R.C.'s buttocks.   R.C. first said no, but then yes, when asked if appellant touched R.C.'s buttocks with appellant's privates.   R.C. said “pee” came out of appellant's private and spilled onto R.C.'s buttocks.   He also said appellant put his mouth on R.C.'s privates.   R.C. said appellant told him not to tell anyone.

At the current trial, R.C. had no memory of appellant orally copulating him.

Defense

T.H.'s stepmother, K.H. considered appellant a good friend.   Although she knew he had a prior conviction for child molestation, she would allow T.H. to be alone with appellant.   T.H. never told K.H. or his father that he was being molested by appellant.

Nine-year-old T., T.H.'s best friend, never saw appellant, his mother's boyfriend, molest T.H. and T.H. did not seem afraid of appellant.   Appellant never molested T., and T. did not remember T.H. getting into bed with him, his mother, and appellant on the night of the incident, and he did not recall telling an officer that he did so.

Mrs. W., T.'s mother and appellant's girlfriend, first learned about appellant's prior molestation conviction a year after they began dating.   She was shocked and upset and checked into the case herself at the courthouse.   She concluded “he was not the person that the paperwork portrayed,” and appellant denied committing the earlier crimes.   Mrs. W. did not believe the charges in the prior conviction and allowed her son to be alone with appellant.   She never saw appellant do anything inappropriate with her son or with T.H.

On the night of the incident, Mrs. W. got home from her job after midnight.   She told officers at the time that T.H. never came into the bedroom that night, but at trial she said “[a]nything is possible, but I don't believe it to be likely.”   Mrs. W. stated that her son would join her and appellant in bed on occasion.   She conceded that T.H. could have gotten into the bed after she got up to make breakfast in the morning but, when she got up, T.H. was sleeping on the couch in the living room.

Mrs. W. admitted that the 1994 police report indicated appellant at first denied wrongdoing, but later admitted molesting R.C. and said that he needed help.   Mrs. W. thought the 1994 charge came from appellant's ex-wife and that he was coerced to confess in order to allow the children to return home.

Appellant testified in his own behalf and stated that, when first questioned about the 1994 molestation of his stepson, he denied it.   He told officers his ex-wife, the boy's mother, was using drugs and fabricated the charge.   He got counseling for the 1994 incident on the recommendation of a detective who said he would lose custody of his children if he did not do so.

Appellant alleged that the officer also told him that, if he admitted the charges and got counseling, there was a good chance he could avoid prison and put his family back together.   Appellant's ex-wife told him her son was at the police station and he should go there and tell the officers what they wanted to hear so that she could get her son back.   He then went to the police station and confessed that he had fondled the boy over a period of three or four months, arousing the small child to an erection, although he claimed to have confessed only so that his ex-wife could keep the children.   Appellant later plead guilty and served a five-year prison term for the 1994 conviction but still denied he ever molested the boy.

Appellant denied molesting T.H. When asked if T.H. was in his bed on July 5, 2007, appellant said not to his knowledge and that the bed was so small, had he been there, he would have known it.   But appellant did say that T. was in the bed with him that night.

Rebuttal

Retired senior deputy sheriff Arnold Smith interviewed appellant in the 1994 case and, although appellant initially denied molesting the boy, appellant did tell the officers that on two occasions, when the boy was sitting on his lap, appellant got an erection.   He later admitted fondling the boy and said “ ‘I need help.’ ”   Smith denied telling appellant that the boy would be taken away or that bad things would happen to his ex-wife or the boy if appellant did not confess.

DISCUSSION

1.  Propensity Evidence

In a motion in limine, the prosecution sought to admit, pursuant to Evidence Code section 1108, all available evidence, in the form of documentary evidence and the testimony of the prior offense victim, R.C., as propensity evidence.   The defense objected and moved to exclude all evidence of the 1994 incident.   In the alternative, defense counsel asked that the court admit only the documentary evidence of the conviction.   Defense counsel argued that R.C.'s testimony would have little probative value beyond that which would be obtained by documentary evidence and would be significantly more inflammatory and prejudicial.   Following argument, the trial court determined that R.C.'s testimony would not result in an undue consumption of time and that the probative value would outweigh its prejudicial effect.   The defense reiterated its objection to R.C.'s testimony, but asked that it be given a copy of an audiotape recording of the victim to properly impeach and cross-examine him.   At trial, R.C. testified that appellant molested him in 1994.   The taped interview of R.C., made during the investigation of that conviction, was played for the jury.

Appellant now contends the trial court abused its discretion in allowing both R.C.'s testimony and the taped interview rather than admitting only documentary evidence of appellant's conviction by guilty plea of molesting R.C. in violation of Penal Code section 288, subdivision (a).   Appellant argues that the prior incident was dissimilar to the charged incident, was too remote in time, was unduly prejudicial, and deprived him of a fair trial under the United States Constitution.   We disagree.

Evidence Code section 1101, subdivision (a) provides, in general, that “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.”  Section 1108, subdivision (a), however, creates an exception to this rule, which states, “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.”

Evidence Code section 352, in turn, states:  “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.”  “[T]he trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.”  (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)   A trial court's exercise of discretion under section 352 “ ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.   [Citations.]’ ”  (People v. Rodrigues, supra, at p. 1124.)

Our Supreme Court in People v. Falsetta (1999) 21 Cal.4th 903 explained that the purpose of Evidence Code section 1108 is to

“ ‘ “permit[ ] 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 [to permit] rational assessment by juries of evidence so admitted.   This includes consideration of 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.” '  [Citations.]”  (Falsetta, at p. 912.)

Thus,

“trial courts may no longer deem ‘propensity’ evidence unduly prejudicial per se, but must engage in a careful weighing process under [Evidence Code] section 352.   Rather than admit or exclude every sex offense a defendant commits, trial judges 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.”  (People v. Falsetta, supra, 21 Cal.4th at pp. 916-917.)

In People v. Harris (1998) 60 Cal.App.4th 727, the court set out factors to be weighed in considering whether to exclude Evidence Code section 1108 evidence under section 352:  the inflammatory nature of the evidence, the probability of confusion, remoteness, consumption of time, and the probative value of the evidence.  (Harris, at pp. 737-741.)   Appellant urges that several of these criteria demonstrate that it was an abuse of discretion to permit R.C. to testify and for the prosecution to play the recorded interview with R.C. for the jury.   Specifically, he argues that the uncharged offense was not similar to the conduct involved in the current charges and too remote in time to be probative of whether appellant had a propensity to commit the charged acts.   He also claims the prior offense evidence had a substantial prejudicial impact on the trial of the current offense.

Appellant first takes issue with the trial court's finding that the current and prior offense involved a high degree of similarity.   During the hearing on the motion, the prosecution stated that T.H. was expected to testify that appellant rubbed his penis.   Subsequent testimony by T.H. indicated that appellant touched him through his clothing.   By contrast, R.C. testified that appellant touched the bare skin of his penis and made R.C. touch appellant's penis.   R.C. told police that appellant orally copulated him, that appellant's penis touched R.C.'s buttocks, and that appellant ejaculated on R.C.'s buttocks.

However, “[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.”  (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41.)   All of the acts described by R.C. were “sexual offenses” within the meaning of Evidence Code section 1108, subdivision (d)(1)(A) and (d)(1)(F), and, in fact, both the 1994 offense and the current allegation were, as the court noted, “both [Penal Code section] 288[, subdivision] (a).”   Both offenses involved young boys and both involved fondling of the genitals.   In any event, “ ‘ “Many sex offenders are not ‘specialists,’ and commit a variety of offenses which differ in specific character.” '  [Citation.]”  (People v. Soto (1998) 64 Cal.App.4th 966, 984.)

Appellant also takes issue with the 15-year gap between the commission of the 1994 conviction and the current offense.   Appellant does not contend that his prior offense was sufficiently remote to require absolute exclusion, but argues the gap is important for two reasons:  first, because approximately 15 years had passed in which appellant had not engaged in illegal conduct;  second, because so much time had passed that R.C.'s memory of events would have so faded as to interfere with appellant's ability to cross-examine the witness.

While it is true that “a substantial gap between the prior offenses and the charged offenses means that it is less likely that the defendant had the propensity to commit the charged offenses[,] ․ significant similarities between the prior and the charged offenses may ‘balance[ ] out the remoteness.’  [Citation.]  Put differently, if the prior offenses are very similar in nature to the charged offenses, the prior offenses have greater probative value in proving propensity to commit the charged offenses.”   (People v. Branch (2001) 91 Cal.App.4th 274, 285.)   For instance, in People v. Branch, the remoteness of the 30-year gap was balanced by the similarities in the charged and uncharged offenses:  The charged offense involved a 12-year-old step-great-granddaughter and the prior offense involved a 12-year-old stepdaughter.   Both offenses occurred while the girls were staying in the defendant's home, and in both situations the defendant falsely told the victim's caretaker the girls had done something wrong in an attempt to shield himself from being found out.  (Id. at pp. 284-285.)

Here, the charged incident occurred in 2007, and the uncharged incidents in 1994, approximately 13 years apart, a time period the trial court did not think “sufficiently remote” to exclude.   And any remoteness was balanced by the similarities.   The uncharged offense culminated in a conviction for violating Penal Code section 288, subdivision (a), the same crime charged in the current offense.³  Both offenses involved young boys, as noted by the trial court, “who are relatively the same age or they are close enough, within a couple of years apart.”   And in both offenses appellant was well known to the boys and in a position of authority:  in one as the stepfather and in the other as the boyfriend of his best friend's mother.

As to appellant's claim regarding the difficulty of cross-examining R.C., we agree with respondent that (1) this was merely one factor for the trial court to consider, and (2) appellant was free to argue to the jury about the vagaries of memory.   In that sense, the remoteness factor went to the weight of the evidence, not its admissibility.   It is the jury's province, not that of the court, to determine the credibility of a witness.  (People v. Jones (1990) 51 Cal.3d 294, 314-315.)

Thus, while the trial court could have limited admission of Evidence Code section 1108 propensity evidence to documentary proof of appellant's prior conviction (People v. Wesson (2006) 138 Cal.App.4th 959, 966-969), its decision to allow R.C.'s testimony and the taped interview of his earlier interview was not an abuse of discretion.

We also find appellant's claim that he was denied a fundamentally fair trial in violation of his constitutional rights under the United States Constitution without merit.   Because we have concluded that the trial court did not abuse its discretion in admitting the evidence of appellant's prior sexual offenses, it follows that the admission of that evidence did not violate due process.

Finally, despite appellant's argument to the contrary, the trial court did not admit the evidence pursuant to Evidence Code section 1101, and we will not address that issue further.

2. Sufficiency of the Evidence

Appellant was charged in count 1 with committing a lewd or lascivious act upon a child under the age of 14 years (Pen.Code, § 288, subd. (a)) and in count 2 with willfully and unlawfully annoying or molesting a child under the age of 18 (§ 647.6).   Both counts were based on the same act or occurrence.   The jury found appellant guilty of count 2 but was unable to reach a verdict on count 1, and the court declared a mistrial as to that count.   Appellant contends that, because of the jury's inability to reach a verdict on count 1, there is insufficient evidence to support his conviction on count 2. As argued by appellant, had the jurors believed T.H.'s testimony that he climbed into bed with appellant and that appellant rubbed his penis, they would have convicted him of a lewd and lascivious act in violation of section 288, subdivision (a), which they did not do, and the conviction of section 647.6 cannot therefore be sustained.   We disagree.

Appellant, while noting that the jury did not reach a verdict on count 1, acknowledges that, as a general rule, inconsistent verdicts are allowed to stand.⁴  (People v. Lewis (2001) 25 Cal.4th 610, 656.)   While this is not a case of inconsistent verdicts, the analysis behind allowing inconsistent verdicts to stand is applicable.

The Legislature has provided that “An accusatory pleading may charge ․ different statements of the same offense ․ under separate counts․  [But] [a]n acquittal of one or more counts shall not be deemed an acquittal of any other count.”  (Pen.Code, § 954;  see People v. Panah (2005) 35 Cal.4th 395, 490.)   When there are inconsistent verdicts, it may be that error has occurred “ ‘in the sense that the jury has not followed the court's instructions,’ ” but “ ‘it is unclear whose ox has been gored.’  [Citation.]  It is possible that the jury arrived at an inconsistent conclusion through ‘mistake, compromise, or lenity.’  [Citation.]  Thus, if a defendant is given the benefit of an acquittal on the count on which he was acquitted, ‘it is neither irrational nor illogical’ to require him to accept the burden of conviction on the count on which the jury convicted.”  (People v. Avila (2006) 38 Cal.4th 491, 600, quoting United States v. Powell (1984) 469 U.S. 57, 65, 69.)   The courts will not assume that inconsistent verdicts are acts of stupidity or confusion rather than acts of leniency, compromise or mistake, situations that do not undermine the validity of a verdict.  (People v. O'Connor (1992) 8 Cal.App.4th 941, 948;  People v. Lewis, supra, 25 Cal.4th at p. 656.)   A criminal defendant is afforded protection against jury irrationality or error by the trial and appellate courts' independent review of the sufficiency of the evidence to support convictions.  (People v. Avila, supra, at p. 601;  People v. Lewis, supra, at p. 656.)

We therefore address the issue as one of sufficiency of the evidence.  “In reviewing [a claim regarding] the sufficiency of the evidence, we must determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’  [Citation.]  ‘[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’  [Citation.]  We ‘ “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ’ ”  (People v. Davis (1995) 10 Cal.4th 463, 509-510.)

Penal Code section 647.6, subdivision (a) provides for the punishment of “[e]very person who annoys or molests any child under 18 years of age.”   Section 647.6, subdivision (a) does not require a touching (People v. Memro (1995) 11 Cal.4th 786, 871) but does require (1) conduct a “ ‘normal person would unhesitatingly be irritated by’ ” (People v. Carskaddon (1957) 49 Cal.2d 423, 426, quoting People v. McNair (1955) 130 Cal.App.2d 696, 698), and (2) conduct “ ‘motivated by an unnatural or abnormal sexual interest’ ” in the victim (People v. Maurer (1995) 32 Cal.App.4th 1121, 1127, quoting In re Gladys R. (1970) 1 Cal.3d 855, 867-868;  see People v. Lopez (1998) 19 Cal.4th 282.)  “The forbidden annoyance or molestation is not concerned with the child's state of mind, but rather refers to the defendant's objectionable acts that constitute the offense.  [Citation.]”  (Lopez, supra, at p. 290.)   The jury was instructed accordingly in the language of CALCRIM No. 1122.

The evidence, which we review in the light most favorable to the judgment (People v. Hicks (1982) 128 Cal.App.3d 423, 429), and recognizing the province of the jury to judge the credibility of witnesses (People v. Hovarter (2008) 44 Cal.4th 983, 996), is as follows.   During one occasion when T.H. spent the night at his friend T.'s house, both boys fell asleep on the couch.   When T.H. awoke, T. was gone.   T.H. went into appellant's room and crawled into bed between T. and appellant.   Appellant appeared to be asleep, but then began rubbing T.H.'s chest.   Appellant's hand traveled down T.H.'s body and began rubbing his penis.   T.H. told appellant to stop, got out of bed, and returned to the living room.   According to T.H., appellant had done this to him on a couple of previous occasions, but T.H. had not really understood was appellant was doing at the time because T.H. was younger.

A few days after the last incident, T.H.'s mother asked him if anyone had touched him, and he told her appellant had touched his private parts.   T.H. denied he made up the story about appellant touching his genitals.   In a taped interview with officers, T.H. said that appellant had fondled him on three other occasions at appellant's house.   He later said it may have been five times, beginning when he was seven.

We find there is sufficient evidence to support appellant's conviction of Penal Code section 647.6.   That appellant received the benefit of some of the jurors' leniency on count 1 does not mean he is entitled to reversal of his conviction in count 2.

DISPOSITION

The judgment is affirmed.

DAWSON, J.

WE CONCUR:

LEVY, Acting P.J.

POOCHIGIAN, J.

FOOTNOTES

FN1. This count was subsequently dismissed on the motion of the prosecution..  FN1. This count was subsequently dismissed on the motion of the prosecution.

FN2. The testimony suggests that T.H.'s father, who was very close friends with appellant, either lived with appellant or stayed there frequently..  FN2. The testimony suggests that T.H.'s father, who was very close friends with appellant, either lived with appellant or stayed there frequently.

FN3. Appellant was convicted only of molesting or annoying a child under the age of 18, pursuant to Penal Code section 647.6..  FN3. Appellant was convicted only of molesting or annoying a child under the age of 18, pursuant to Penal Code section 647.6.

FN4. Exceptions exist in conspiracy cases (People v. Pahl (1991) 226 Cal.App.3d 1651, 1658) or when the jury convicts the defendant of two inconsistent offenses (People v. Womack (1995) 40 Cal.App.4th 926, 929-930, 934)..  FN4. Exceptions exist in conspiracy cases (People v. Pahl (1991) 226 Cal.App.3d 1651, 1658) or when the jury convicts the defendant of two inconsistent offenses (People v. Womack (1995) 40 Cal.App.4th 926, 929-930, 934).