IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
December 6, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
CHARLES EDWARD HARVEY, DEFENDANT AND APPELLANT.
Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed in part, reversed in part, and remanded with directions. (Super. Ct. No. 07NF2125)
The opinion of the court was delivered by: Fybel, J.
P. v. Harvey
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Charles Edward Harvey was convicted by a jury of committing continuous sexual abuse of his eight-year-old female cousin K.F. in violation of Penal Code section 288.5, subdivision (a). (All further statutory references are to the Penal Code unless otherwise specified.) Defendant contends the trial court erred by (1) admitting evidence of defendant's prior similar instances of sexual conduct, under Evidence Code section 1101, subdivision (b), offered to prove defendant's intent; (2) imposing the 16-year upper term sentence based on "legally inapplicable aggravating factors"; and (3) imposing a $300 fee under a version of section 290.3, which was not in effect at the time of the commission of the offenses.
We affirm the judgment except we reverse the imposition of the fine under section 290.3 and remand that issue to the trial court with directions. The trial court did not err in admitting testimony, over defendant's relevancy and Evidence Code section 352 objections, that defendant had engaged in the same sexual conduct that he engaged in with K.F. with another eight-year-old female cousin when defendant was 12 years old. The testimony was relevant to prove defendant's intent to sexually abuse K.F., and, although the prior sexual conduct occurred many years earlier, the testimony was brief and described sexual conduct far less egregious than defendant's admitted sexual abuse of K.F. Defendant otherwise failed to show the probative value of the prior sexual conduct evidence was substantially outweighed by the probability it would create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
The trial court relied on aggravating factors set forth in rule 4.421 of the California Rules of Court in imposing the upper term sentence. Although the court also relied on some improper factors, it is not reasonably probable the trial court would have imposed a lesser sentence had it known that some of its reasons were improper.
As conceded by the Attorney General, the trial court erred by imposing a $300 fine instead of a $200 fine under the applicable former version of section 290.3. As pointed out by the Attorney General, however, it appears the court did not impose the mandatory penalty assessments, state surcharge, and construction penalty, all of which attach to that fine, and when combined with the fine, total $640. Because the section 290.3 fine is contingent on defendant's ability to pay and the record does not show the trial court made a determination as to defendant's ability to pay the $640, we reverse the judgment solely as to the section 290.3 fine and remand to the trial court to hold a hearing to determine defendant's ability to pay such a fine and its accompanying assessments, surcharge, and penalty.
When K.F. was in the second grade, she lived in a two-bedroom apartment with her mother, father, brother, grandmother, uncle, and defendant, who is K.F.'s first cousin once removed. K.F.'s mother and defendant were cousins and "best friends" who had grown up together; they were "extremely close."
K.F. and her uncle slept on separate couches in the living room; defendant usually slept on the floor. When K.F. was about seven or eight years old, defendant began touching K.F.'s vaginal area after she lay down on the couch to go to sleep.*fn1 Defendant also placed one or more of his fingers inside her vagina. Sometimes K.F. had already fallen asleep and would wake up to defendant touching her. K.F. would sometimes pretend she was asleep when defendant began to touch her and she would move or grunt causing him to move away from her.
K.F. testified defendant touched her "a couple times a week" and then stopped when she was nine years old with one exception. When K.F. was 11 years old, she spent the night at her uncle's apartment where defendant then lived and woke up to find defendant touching her vaginal area with his fingers.
K.F. testified defendant also placed K.F.'s hand on his penis "over 5 or 10 times." She also stated that defendant would sometimes lie down on top of her and massage her back and rub her shoulders.
When she was 14 years old, K.F. told her aunt, M.L., about defendant's conduct. K.F. had not previously told anyone about defendant's conduct because she "was scared about what would happen." M.L. had herself been touched by defendant when they were both children. When M.L. was eight years old, then 12-year-old defendant (who was her cousin) approached her while she was sleeping and touched her vaginal area over her clothes. This happened two or three times. (Defendant had also made at least two other attempts to touch her vaginal area, which were unsuccessful.) M.L. had never told anyone what had happened to her; instead, she had expressed general concern to K.F.'s mother about K.F. sleeping in the same room with defendant. K.F.'s mother, however, dismissed M.L.'s concern, stating, "he's my cousin. I trust him."
The same day K.F. told M.L. about what had happened to her, they told K.F.'s mother and reported defendant to the police. At the direction of Detective Ronald Bair of the Fullerton Police Department, K.F. placed a call from the police department on a recorded line to defendant. During the call, K.F. confronted defendant with specific instances of sexual conduct including his placing her hand on his penis and his digital penetration of her vagina. Defendant did not deny engaging in any such conduct. Instead, he apologized to K.F., stated he could not explain why he had done what he had done, and told her she should do whatever she thought was best.
Bair contacted defendant and asked him to come to the police station for an interview. He asked defendant if he knew why he had been called; defendant said he knew why Bair had called him and agreed to come to the police station to be interviewed later that afternoon. During the interview, defendant admitted he had twice fondled the outside of K.F.'s vagina, twice inserted his fingers into her vagina, rubbed his penis against her vagina at least once, orally copulated her twice, and, on five occasions, placed her hand on his penis and used her hand to masturbate himself. He also admitted those incidents occurred in the living room of K.F.'s residence when he thought she was asleep and that he started engaging in this conduct when she was "7 or 8" and "it went on for about two years."
At trial, defendant testified that he had touched K.F.'s vaginal area and digitally penetrated her vagina twice. Although he admitted placing K.F.'s hand on his penis, defendant testified that he believed it occurred twice and on the same days he touched her. He further testified he rubbed her back but denied lying down on her back. He also stated he orally copulated her once. Defendant testified he could not explain why he engaged in that conduct and he assumed it was for the purpose of his own sexual arousal. He also testified he believed K.F. was asleep during each of the incidents.
Defendant was charged in an information with committing continuous sexual abuse of a child under the age of 14 years, in violation of section 288.5, subdivision (a) (count 1);*fn2 committing a lewd act upon a child under 14 years of age, in violation of section 288, subdivision (a) (count 2); and oral copulation with a person under 14 years of age, in violation of section 288a, subdivision (c)(1) (count 3). As to count 3, the information alleged defendant had engaged in substantial sexual conduct in the form of oral copulation with a child under 14 years of age, within the meaning of section 1203.066, subdivision (a)(8). The trial court granted defendant's motion to dismiss count 3.
A jury found defendant guilty of count 1 but did not reach a verdict on count 2.*fn3 The trial court sentenced defendant to the upper term of 16 years on count 1. The court ordered defendant to pay, inter alia, a fine of $300 pursuant to section 290.3. Defendant appealed.
THE TRIAL COURT DID NOT ERR BY ADMITTING M.L.'S TESTIMONY UNDER EVIDENCE CODE SECTION 1101, SUBDIVISION (b).
Defendant contends the trial court erred by admitting M.L.'s testimony regarding defendant's prior sexual conduct, over his objections on relevancy and Evidence Code section 352 grounds, to prove his intent in committing count 1, within the meaning of Evidence Code section 1101, subdivision (b). "We review for abuse of discretion a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352. [Citations.]" (People v. Harrison (2005) 35 Cal.4th 208, 230.)
At the hearing on the admissibility of M.L.'s testimony, the trial court observed that intent was an element of count 1, which the prosecution had the burden to prove. The court found that when compared to count 1, defendant's sexual conduct with M.L. was "sufficiently similar to support an inference that the defendant probably harbored the same intent not only then but also here." The court also stated it found M.L.'s testimony was "more probative than prejudicial" within the meaning of Evidence Code section 352. For the reasons we discuss post, the trial court did not err by admitting M.L.'s testimony, and, even if it had erred, any such error was not prejudicial on this record.
Evidence Code section 1101, subdivision (a) generally prohibits the admission of evidence of a person's character or a trait of his or her character, including evidence of specific instances of his or her conduct "when offered to prove his or her conduct on a specified occasion." Evidence Code section 1101, subdivision (b) provides, however, that "[n]othing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act" when relevant to prove, inter alia, intent.*fn4
To be admissible to prove intent, "'the uncharged misconduct must be sufficiently similar to support the inference that the defendant "'probably harbor[ed] the same intent in each instance.' [Citations.]" [Citation.]'" (People v. Soper (2009) 45 Cal.4th 759, 776.) "Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged of offense." (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2.) Also, to be admissible, "such evidence '"must not contravene other policies limiting admission, such as those contained in Evidence Code section 352." [Citation.]' [Citation.] Under Evidence Code section 352, the probative value of the proffered evidence must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citations.]" (People v. Harrison, supra, 35 Cal.4th at p. 229.)
Here, there is more than a substantial similarity between defendant's conduct with M.L. and his conduct with K.F. In both cases, defendant approached a young female relative approximately eight years in age, who appeared to him to be sleeping, and touched her vaginal area. Because the facts of each case were sufficiently similar to support the inference of defendant's same intent to engage in sexual conduct in each instance, the evidence was properly admissible under Evidence Code section 1101, subdivision (b).
The trial court did not abuse its discretion by overruling defendant's Evidence Code section 352 objection to the admission of M.L.'s testimony. As discussed ante, M.L.'s testimony was probative in showing defendant's intent to engage in sexual conduct with K.F. Furthermore, the probative value of M.L.'s testimony was not substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Although M.L. described sexual conduct by defendant, which had occurred about 26 years earlier, her testimony was brief (consisting of less than 16 pages of the reporter's transcript) and described only a subset of the various sexual acts which defendant admitted he committed against K.F. M.L testified defendant touched her vaginal area over her clothes two or three times while he admitted touching K.F. "skin to skin." (See People v. Ewoldt, supra, 7 Cal.4th at p. 405 [because evidence of the defendant's uncharged acts "was no stronger and no more inflammatory than the testimony concerning the charged offenses," the "potential for prejudice" decreased].)
We find no error.
Even if the admission of M.L.'s testimony constituted error, reversal is not warranted because it is not reasonably probable that a more favorable verdict would have been reached if the evidence had been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence of defendant's guilt at trial was overwhelming. K.F. testified that not only did defendant repeatedly touch her vaginal area (as he had with M.L.), he also placed his fingers in her vagina and placed her hand on his penis. During Bair's interview with defendant, defendant admitted engaging in the conduct described by K.F. and also orally copulating her. At trial, defendant admitted he engaged in those various forms of sexual conduct with K.F. It is not reasonably probable on this record that defendant would have received a more favorable verdict but for M.L.'s testimony.
Defendant argues, "[t]he prejudice inherent in the introduction of the prior molestation violence evidence was exacerbated by the prosecutor during closing argument when he mentioned '. . . M[.L.], the woman you met at the end of the trial. And then, of course, she testified on the witness stand.' . . . Without the evidence, the prosecutor would not have been able to allude to M[.]L.'s prejudicial testimony." (First ellipsis in original.) Defendant does not explain how the quoted statement by the prosecutor exacerbated any prejudice allegedly caused by the admission of M.L.'s testimony. In any event, "whether evidence was erroneously admitted does not depend on counsel's later argument to the jury." (People v. Harrison, supra, 35 Cal.4th at p. 230.)
THE 16-YEAR UPPER TERM SENTENCE ON COUNT 1
Defendant contends the trial court abused its discretion by imposing the upper term sentence of 16 years on count 1, based on "legally inapplicable aggravating factors." Defendant did not assert in the trial court any objections to the upper term sentence on the ground the court relied on improper factors. Defendant does not argue on appeal that he was denied the opportunity in the trial court to object to his sentence on the grounds asserted in this appeal. Thus, defendant's argument is waived. (People v. Gonzalez (2003) 31 Cal.4th 745, 755 [the defendants may not challenge their sentences on appeal on grounds not presented to the trial court].)
Even if defendant's argument is not waived, we find no reversible error. Generally, "[w]hen a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. [Citation.]" (People v. Price (1991) 1 Cal.4th 324, 492.) Here, only a single aggravating factor would be sufficient to justify the imposition of the upper term on count 1. (People v. Osband (1996) 13 Cal.4th 622, 728 ["Only a single aggravating factor is required to impose the upper term"].) Accordingly, we will not reverse the sentence if the trial court would, in all likelihood, have imposed the same sentence on the basis of a single correct factor. (Id. at pp. 728-729.)
Here, the probation report identified the following factors in aggravation: (1) K.F. was particularly vulnerable "in that she was asleep and unable to be aware of the defendant's intentions or actions until he committed them" (see Cal. Rules of Court, rule 4.421(a)(3)); (2) the manner in which the crime was carried out indicates planning in that defendant "repeatedly touched and inserted his finger into the vagina of the victim while she slept" (see id., rule 4.421(a)(8)); and (3) defendant took advantage of a position of trust to commit the crime as he was allowed to live in K.F.'s family's residence when he had no place to live and slept in the same room as K.F., due to the family's living under impacted conditions (see id., rule 4.421(a)(11)). As for circumstances in mitigation, the probation report stated that defendant had no prior record of criminal conduct and he acknowledged some of his actions upon arrest (see id., rule 4.423(b)(1), (3)).
At the sentencing hearing, the trial court explained that it was imposing the upper term sentence based on the factors "that have been noted in the probation and sentencing report" and the factors the court expressly referenced during the hearing. As set forth ante, the factors noted in the probation report were proper aggravating factors listed in California Rules of Court, rule 4.421. At the hearing, the court discussed two of those factors--K.F.'s vulnerability and defendant's violation of K.F.'s and her family's trust--in committing count 1.*fn5 The court also expressly referenced the frequency of defendant's sexual assaults against K.F., which evidence showed was above and beyond the three or more acts of substantial sexual conduct over a three-month period required for a conviction under count 1, and thus arguably shows "a high degree of cruelty, viciousness, or callousness" within the meaning of rule 4.421(a)(1).
The record suggests, however, the trial court also relied on improper aggravating factors in imposing the upper term sentence. For example, the court stated that some of the factors it relied upon "the jury found by virtue of the elements of the offense." Rule 4.420(d) of the California Rules of Court states: "A fact that is an element of the crime upon which punishment is being imposed may not be used to impose a greater term." Defendant argues the court also improperly considered defendant's dangerousness in imposing the upper term because dangerousness is not an aggravating factor for purposes of imposing the upper term, although it may be reason to deny probation (Cal. Rules of Court, rule 4.414(b)(8)).
As discussed ante, because some of the factors relied upon by the trial court were proper aggravating factors which support the imposition of the upper term, we will not reverse the sentence unless it is reasonably probable the court would not have imposed the upper term sentence had it known that some of the factors it had relied upon were improper. (People v. Price, supra, 1 Cal.4th at p. 492.) The trial court's comments at the sentencing hearing show the court relied heavily on K.F.'s vulnerability, defendant's violation of trust, and the frequency of defendant's sexual offenses (beyond the minimum required for a conviction under count 1), in imposing the upper term. The court stated: "This was a child that was repeatedly violated while she slept in her home by someone she trusted." (See Cal. Rules of Court, rule 4.421(a)(1), (3), (11).) We therefore conclude it is not reasonably probable the court would have imposed a lesser sentence had it known that some of the factors it relied upon were improper. We therefore affirm defendant's upper term sentence on count 1.
THE TRIAL COURT ERRED BY IMPOSING A $300 FINE UNDER SECTION 290.3.
Defendant contends the trial court erred by imposing a $300 fine under section 290.3 because the version of section 290.3 in effect at the time of the offense (from May 2001 through May 2003) provided for the imposition of a $200 fine. Defendant thus argues the imposition of the $300 fine violated the federal and state ex post facto constitutional provisions.
In People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248, the appellate court addressed this issue as follows: "At the time defendant's sex offense occurred in 2003 and 2004, section 290.3, subdivision (a) stated, 'Every person who is convicted of any offense specified in subdivision (a) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for violation of the underlying offense, be punished by a fine of two hundred dollars ($200) upon the first conviction or a fine of three hundred dollars ($300) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine.' [Citation.] In 2006, the Legislature amended section 290.3, subdivision (a) to require the imposition of a $300 fine following the first conviction. [Citations.] The prohibition against ex post facto laws applies to restitution fines. [Citations.] The fine imposed in this case constituted an unauthorized sentence."
As conceded by the Attorney General, we conclude the trial court erred by imposing a fine under section 290.3 in the amount of $300 instead of $200 pursuant to the version of the law in effect at the time of the commission of count 1. We cannot, however, simply modify the judgment to reduce the section 290.3 fine to $200 because it appears the trial court did not impose the mandatory assessments, state surcharge, and construction penalty, all of which attach to the imposition of a section 290.3 fine. Citing People v. Valenzuela, supra, 172 Cal.App.4th at page 1249, the Attorney General points out that although defendant correctly asserts the trial court should have imposed only a $200 fine under section 290.3, "he was also subject to other fines and fees totaling $640 which were not imposed, so his judgment should be modified to reflect them."
In People v. Valenzuela, supra, 172 Cal.App.4th at page 1249, the appellate court explained: "The $200 former section 290.3, subdivision (a) fine was subject to the following: a section 1464, subdivision (a)(2) $200 penalty assessment; a Government Code section 76000, subdivision (a)(1) $140 penalty assessment; a $40 Penal Code section 1465.7, subdivision (a) state surcharge; and a $60 Government Code section 70372, subdivision (a)(1) state court construction penalty. Thus, the total amount owed including the $200 former section 290.3, subdivision (a) fine and the applicable penalty assessments, surcharge, and construction penalty fine is $640."
Although the Attorney General invites us to modify the judgment to reflect that defendant owes a total of $640 for the fine and the related penalty assessments, surcharge, and construction penalty, it is not clear the trial court made a determination as to defendant's ability to pay the fine in light of such assessments, surcharge, and penalty. Former section 290.3, subdivision (a) required the imposition of a $200 fine, "unless the court determines that the defendant does not have the ability to pay the fine." We therefore reverse the imposition of the fine under section 290.3, subdivision (a) and remand to the trial court to hold a hearing to determine defendant's ability to pay the fine. (See People v. Valenzuela, supra, 172 Cal.App.4th at p. 1250.)
The imposition of the fine in the amount of $300 under section 290.3, subdivision (a) is reversed. We remand to the trial court to hold a hearing to determine defendant's ability to pay the $200 fine authorized by the applicable former version of section 290.3, subdivision (a), in light of the assessments, state surcharge, and construction penalty, all of which attach to such a fine, as discussed in this opinion. The judgment is affirmed in all other respects.
WE CONCUR: RYLAARSDAM, ACTING P. J. IKOLA, J.