IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
December 28, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ERNEST LEONARD VOIGHT, DEFENDANT AND APPELLANT.
Appeal from a judgment of the Superior Court of Orange County, William Lee Evans, Judge. (Super. Ct. No. 04ZF0076)
The opinion of the court was delivered by: Bedsworth, J.
P. v. Voight
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellant was convicted of committing five lewd acts on a child under the age of 14. He was also found to have victimized multiple children and suffered several prior convictions. On appeal, he contends the trial court erred in admitting certain evidence and failing to disclose the identity of a confidential informant. He also contends there is insufficient evidence to support two of the counts, and his sentence of 390 years to life in prison is cruel and unusual. Finding no basis to disturb the judgment, we affirm.
Kevin R. was born in 1992. His father Peter was a long-time friend of appellant, and when Kevin was about 10 years old, the three of them began spending a lot of time together. One day while Kevin and appellant were alone in Kevin's garage, appellant rubbed Kevin's penis over his clothing for about a minute. Appellant also told Kevin he would give him some money if he pulled down his pants and underwear, which Kevin did. Appellant proceeded to drop several quarters on Kevin's penis. He then gave Kevin seven dollars and told him to tell Peter he earned the money for making seven baskets during a basketball game.
On another occasion, Kevin was at his cousin's football game when appellant came up to him, hugged him and "grabbed [his] butt." Kevin tried to pull away, but appellant held on until Kevin told him to stop. Later that day, appellant gave Kevin $20 without saying what it was for. In the wake of these incidents, Kevin told his parents appellant had touched him "in the wrong way" and had "put his hand on his butt" while they were playing sports together. Kevin also told the police appellant had "reached into his pants and touched him skin to skin."
Around the same time (approximately 2002-2004), appellant also touched the private parts of Kevin's eight-year-old neighbor Alex G. At the time of trial, Alex could not remember the details of all the touching incidents, but he did describe two of them. The first one occurred in appellant's car, while he, appellant and Peter were listening to music. At one point, appellant reached over and briefly touched Alex's penis on the outside of his clothing. Alex told appellant to "stop it," and nothing further transpired. Another time, appellant was playing baseball with Alex and other children when Alex went to chase the ball. Appellant followed him, grabbed hold of his buttocks, and did not let go until Alex threatened to call the police. During the time Alex knew appellant, appellant gave him money and a baseball hat.
In addition to the foregoing, the prosecution presented evidence appellant molested two other boys, Fernando F. and Michael D. This evidence was admitted to show appellant's propensity for sexual misconduct and to prove he committed the charged offenses against Kevin and Alex.
Fernando was seven years old in 1997. He testified that during that year, appellant spent a lot of time at his house because he was a friend of his mother. Over a period of several months, appellant touched his penis over his clothing two or three times a week. Sometimes the touching occurred in appellant's car, and other times it occurred in Fernando's house when his mother was not around. Appellant also touched Fernando's penis under his clothing while he was in bed and orally copulated him four or five times. Afterwards, appellant would give him chocolate to make him feel better.
Michael is Fernando's cousin, and like Fernando, he was seven years old in 1997. He testified that when he was over at Fernando's house, appellant showed him pornography on his computer and sucked his penis "more than once." In addition, appellant came into his room on some nights and touched his penis over and under his clothing. Michael said appellant also touched his own penis while he was doing this.
At the prosecution's request, the court took judicial notice that in 2000, appellant pleaded guilty to one count of committing a lewd act on Michael. The court also instructed the jurors that while they could use the evidence of appellant's prior misconduct to prove he was inclined to commit sexual offenses, such evidence was not sufficient, in and of itself, to prove appellant was guilty of the charged offenses.
Appellant's defense was that Kevin and Alex's allegations were untrue, and that even if he did touch them as alleged, he did not do so with the intent to obtain sexual gratification. However, the jury convicted appellant as charged of committing five lewd acts on a child under the age of 14. It also found he committed a sex crime against more than one victim. In a separate proceeding, the court found true allegations appellant had suffered three prior strike convictions, three prior serious felony convictions, and one conviction for committing a lewd act on child. The court committed appellant to prison for a term of 390 years to life.
Appellant contends the trial court abused its discretion in allowing Fernando and Michael to testify about his past sexual misconduct. He argues this evidence was unduly prejudicial and undermined his right to a fair trial. We disagree and uphold the trial court's decision to admit it.
This issue was litigated extensively before trial. Initially, the prosecution sought to introduce evidence that, in addition to Fernando and Michael, appellant had also previously molested three other boys: Joshua and Lorenzo F., who are Fernando's brothers, and another boy named Joshua M. The prosecution alleged that in 1997, when Joshua and Lorenzo F. were six and nine years old respectively, appellant 1) rubbed Joshua's penis over his clothing while he was watching television, 2) rubbed Lorenzo's penis and digitally penetrated his anus when he was in bed, 3) touched Lorenzo's penis under his clothing while he was in appellant's car, and 4) offered Lorenzo a dollar if he would let him touch his penis. As for Joshua M., the prosecution claimed that in 1992, when Joshua was seven years old, appellant placed his hand under the boy's underwear and rubbed his penis.
In considering whether to admit this evidence, the court considered both the nature of the charges against appellant and the nature of the uncharged misconduct. It determined it would be unfair for the prosecution to present evidence appellant had previously molested five different victims. However, as set forth above, it did allow Fernando and Michael to testify about appellant's prior sexual misconduct. Appellant contends this was error, but we find no abuse of discretion in the court's ruling.
Evidence of the accused's prior bad acts is generally inadmissible. (Evid. Code, § 1101, subd. (a).)*fn1 However, evidence of prior sex crimes is treated differently. Pursuant to section 1108, such evidence is admissible to prove the defendant's propensity for sexual misconduct in a sex crime prosecution, so long as it is not unduly prejudicial within the meaning of section 352. (§ 1108, subd. (a).) Section 1108 "was intended in sex offense cases to relax the evidentiary restraints section 1101, subdivision (a), imposed and to assure that the trier of fact would be made aware of the defendant's other sex offenses . . . ." (People v. Falsetta (1999) 21 Cal.4th 903, 911-912.) Indeed, "'[t]he Legislature has determined the need for this evidence is "critical" given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial. [Citation.]' [Citations.]" (Ibid.)
Introduction of the defendant's prior sex crimes is not without limitation, however. As noted, such evidence is subject to section 352, which empowers the trial court to exclude evidence if its probative value is substantially outweighed by the probability its admission would cause undue delay, confusion or prejudice. Given this limitation on the admission of prior sex crimes evidence, courts have upheld section 1108 against attacks that it violates due process and equal protection. (People v. Falsetta, supra, 21 Cal.4th at pp. 910-922; People v. Fitch (1997) 55 Cal.App.4th 172; People v. Waples (2000) 79 Cal.App.4th 1389.) These cases make clear the statute is a constitutionally sound method to allow propensity evidence in sex crimes cases. We therefore turn to appellant's claim that the evidence of his prior uncharged sex crimes was unduly prejudicial within the meaning of section 352.
As our Supreme Court has explained, "The prejudice which exclusion of evidence under . . . section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in . . . section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues." (People v. Karis (1988) 46 Cal.3d 612, 638.) Given the fact-specific nature of this inquiry, trial courts have broad discretion in assessing prejudice, and we will not disturb the trial court's ruling under section 352 unless it is arbitrary or capricious. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124; People v. Branch (2001) 91 Cal.App.4th 274, 282.)
In challenging the trial court's decision to allow evidence of his prior sex misconduct, appellant draws our attention to People v. Harris (1998) 60 Cal.App.4th 727, but that case is inapt. In Harris, a mental health nurse was accused of orally copulating and fondling two of his patients. Although the assaults involved "a breach of trust by a caregiver, the abuse the victims suffered" was "not unusual or shocking." (People v. Harris, supra, 60 Cal.App.4th at p. 738.) However, the jury was allowed to hear evidence implicating defendant in a 23-year-old incident in which the victim was viciously beaten and sexually exploited during a "perverse attack" in her apartment. (Ibid.) Because the incident was, inter alia, extremely inflammatory and remote, and because it was so dissimilar to the charged offenses that it was not particularly probative of defendant's predisposition to commit them, the Harris court determined the incident should not have been admitted into evidence. (Id. at pp. 736-741.)
Here, in contrast, the evidence of appellant's prior sexual offenses was not unduly remote; indeed, the prior incidents all occurred within five to seven years of the charged offenses. The prior incidents were also tamer than the prior incident at issue in Harris. Whereas the prior incident in Harris involved an exceedingly vicious attack on the victim, the victims of appellant's prior sex crimes did not suffer any known physical injury. In the present case, the danger of prejudice and confusion was also lessened by the fact appellant pleaded guilty to molesting Michael. The guilty plea effectively relieved the jury of the burden of having to decide whether appellant had actually committed lewd conduct in the past. Moreover, in terms of volume, the evidence of appellant's prior acts was not unduly time consuming; judging from the reporter's transcript, it could not have taken up more than a few minutes of a trial that lasted for several days.
It is true that the acts involving Michael and Fernando were more expansive than the acts involving Kevin and Alex. Appellant allegedly touched the penis of all four victims over their clothing, but Michael and Fernando testified appellant also touched their penises under their clothing, "skin to skin."*fn2 In addition, the evidence showed appellant orally copulated both earlier victims, exposed Michael to pornography, and also touched himself while touching Michael. Nevertheless, the charged and uncharged acts were all in the same general vein, in that they involved nonconsensual, yet nonforcible, sexual contact between appellant and the victims. And although the acts involving Michael and Fernando were more invasive, the quarters-dropping incident involving Kevin was right up there in terms of sheer perversity.
As the Attorney General points out, there were also many factual similarities between the charged and uncharged acts. He correctly argues, "Every incident involved a boy in his preteen years. Appellant primarily used his hands to touch each victim. All of the victims were rubbed on their penises. Appellant used incentives rather than force to gain access to the victims. Many of the incidents occurred in appellant's car. Appellant befriended the victims through adult friends. And, all of the victims were Hispanic."
In light of these similarities, we cannot say the court's decision to admit the evidence of appellant's prior sexual misconduct was arbitrary or capricious. Since appellant pleaded not guilty and denied the charges against him, the evidence of his prior misconduct was not only relevant in terms of establishing his propensity for sexual deviancy, it was also important as far as bolstering the current victims' credibility. (People v. Miramontes (2010) 189 Cal.App.4th 1085.)
Moreover, the court exercised considerable caution in excluding much of the uncharged evidence that was proffered by the prosecution. That included the evidence regarding Lorenzo, who alleged acts of digital penetration, the evidence regarding Joshua M., which was the most remote conduct alleged, and the evidence regarding Joshua F., which was largely cumulative of the other evidence presented. The court also properly instructed the jury that appellant could not be convicted based solely on the evidence of his prior uncharged misconduct.
All things considered, we perceive no abuse of discretion under section 352, nor any infringement of appellant's fair trial rights. Although the challenged evidence was prejudicial in the sense it was highly damaging to appellant's case, it was not unduly prejudicial given its bearing on the particular issues presented in this case. We therefore uphold the trial court's decision to admit it.
Appellant also contends there is insufficient evidence to support the jury's finding he committed a lewd act on Alex. He argues the record is bereft of substantial evidence he touched Alex for sexual gratification, but we do not find that to be the case.
"The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" (People v. Jones (1990) 51 Cal.3d 294, 314.) A reversal "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the judgment].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Appellant was convicted of violating Penal Code section 288, subdivision (a), which states, "Any person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . ."
The purpose of this statute is to protect children from being sexually exploited. (People v. Martinez (1995) 11 Cal.4th 434, 443-444.) If the conduct in question is intended to arouse the lust, passion or sexual desire of the perpetrator or the child, "'it stands condemned by the statute.'" (Ibid., quoting People v. Hobbs (1952) 109 Cal.App.2d 189, 192.) All of the circumstances attendant to the conduct are relevant in making this determination. (Id. at p. 445.)
Appellant argues his actions toward Alex were not inherently sexual. However, it is not every day a grown man touches the penis of an eight-year-old, even over the boy's clothing, or grabs a hold of a boy's buttocks when he goes to chase a ball during the course of a baseball game. Appellant also gave Alex money when the boy objected, which suggests he was trying to dissuade him from telling anyone about his actions. Add to that the evidence from Fernando and Michael regarding appellant's propensity for molesting boys of Alex's age, and there can be but one conclusion: A rational trier of fact could certainly find appellant touched Alex with the requisite intent to arouse. Therefore, we must uphold the jury's finding to that effect.
Next, appellant contends the trial court erred in admitting the substance of Kevin's statement to the police under the so-called "fresh complaint" doctrine. We agree but find the error was harmless under the circumstances presented in this case.
Under the fresh-complaint doctrine, the trial court may admit evidence of a complaint made by a victim of a sexual offense. (People v. Brown (1994) 8 Cal.4th 746, 749-750.) However, "evidence of the victim's report or disclosure of the alleged offense should be limited to the fact of the making of the complaint[.]" (Id. at p. 763.) This limitation is required to "eliminat[e] or at least minimiz[e] the risk that the jury will rely upon the evidence for an impermissible hearsay purpose," that is, "as tending to prove the truth of the underlying [sexual offense] charge . . . ." (Id. at pp. 762-763.)
Here, however, the trial court allowed the prosecution to introduce the substance of the statements that Kevin made to the police during the course of their investigation. Particularly, the jury was informed that when investigators asked Kevin about appellant, he alleged appellant touched him on his penis and his butt. And when they asked if the contact occurred over or under his clothing, Kevin said appellant touched him "skin to skin."
The trial court did admonish the jury to consider Kevin's statement for the limited purpose of evaluating his credibility. However, our Supreme Court has cautioned, that "even with a proper limiting instruction, a jury may well find it difficult not to view [the] details [of a fresh complaint] as tending to prove the truth of the underlying charge of sexual assault [citation], thereby converting the victim's statement into a hearsay assertion [citation]." (People v. Brown, supra, 8 Cal.4th at p. 763, italics added.) Thus, as the Attorney General concedes, the court should not have admitted the substance of Kevin's complaint into evidence, even with a limiting instruction.
Still we do not believe it is reasonably probable appellant would have attained a more favorable result at trial had the substance of Kevin's police statement been excluded. (See People v. Watson (1956) 46 Cal.2d 818 [harmless error generally]; People v. Manning (2008) 165 Cal.App.4th 870, 880 [harmless error in admitting substance of fresh complaint].) Since Kevin testified at trial, the jury "did not have to rely on [his] secondhand statements to other people, but was able to hear [him] directly and judge [his] credibility." (People v. Manning, supra, 165 Cal.App.4th at p. 881.) This obviously diminished the importance of his pretrial statements to the police. Moreover, in terms of their potential for causing prejudice, the statements were really no more inflammatory than Kevin's assertion at trial that appellant bribed him to take down his pants and dropped quarters on his naked penis. Considering the nature of the case and the evidence presented against appellant, the challenged statements do not warrant a reversal on appeal.
Appellant also contends the trial court erred by denying his request to disclose the identity of a confidential informant. He claims the court should have held a hearing on his request, but we find the court handled the issue properly.
Appellant's request for disclosure was based on information contained in the arrest report. According to the report, "a concerned confidential citizen" informed the police that appellant had disclosed to him that he had sexually abused "Peter's son," i.e., Kevin. There is no indication the informant witnessed the molestation. In fact, he said he had never even met Kevin or his father.
Claiming the informant's information was untrue, appellant moved to disclose his identity before trial, but the court denied the request. The court reasoned, "the informant . . . only . . . pointed law enforcement in the direction. [He] was not a person who had personal notice or observations of any of the conduct and, therefore, [he] is not a discoverable informant."
The law is clear. In order to obtain disclosure of an informant's identity, the defendant must show the informer would be a material witness on the issue of guilt. (People v. Wilks (1978) 21 Cal.3d 460, 468.) In particular, the defendant must demonstrate there is a reasonable possibility the informant could give exonerating evidence on his behalf. (People v. Borunda (1974) 11 Cal.3d 523, 527; Price v. Superior Court (1970) 1 Cal.3d 836, 843.) Where the defendant merely asserts an informant is a material witness, without providing any accompanying support, the trial court is not required to disclose the informant's identity, or even hold a hearing on the issue. (People v. Fried (1989) 214 Cal.App.3d 1309, 1314-1315 [hearing not required when the defendant fails to make a prima facie case for disclosure].)
Appellant correctly notes an "informant can be a material witness whose identity must be disclosed upon proper demand even when such informant was not an eyewitness to the alleged criminal act. [Citation.]" (People v. Lee (1985) 164 Cal.App.3d 830, 836.) However, "when the informer is shown to have been neither a participant in nor a non-participant eyewitness to the charged offense, the possibility he could give evidence which might exonerate the defendant is even more speculative and, hence, may become an unreasonable possibility." (Ibid.) Indeed, our Supreme Court has recognized an informant is not a material witness when, as here, "'"he simply points the finger of suspicion toward a person who has violated the law. . . ."' [Citation.]" (People v. Wilks, supra, 21 Cal.3d at p. 469.)
Appellant argues that if the informant was lying, it could prove the police were out to get him, but that is sheer speculation - and rather tenuous speculation, at that. While the informant tipped off the police to appellant, he did not participate in or witness any of the events leading to appellant's arrest. Therefore, his identity was immaterial. Because appellant did not meet his burden of proving there was a reasonable probability the informant could give exonerating evidence on his behalf, the trial court did not err in choosing not to conduct a hearing on the issue, or in not disclosing the informant's identity to the defense.
Lastly, appellant contends his sentence of 390 years to life in prison constitutes cruel and unusual punishment. However, rather than discussing the particulars of his case or his criminal history, he relies primarily on a concurring opinion in which Justice Mosk decried multicentury sentences as being oblivious to life expectancy tables. (See People v. Deloza (1998) 18 Cal.4th 585, 600-602 (conc. opn. of Mosk, J.).) But concurring opinions are not the law, and the fact is courts have upheld sentences that are comparable in length to the one appellant received in this case. (See, e.g., People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134-1137 [repeat sex offender's prison sentence of 375 years to life plus 53 years was not cruel or unusual].) Considering appellant's record of child sexual abuse and his conduct toward the victims in the present case, he is surely a prime candidate for a prolonged prison term. (Rummel v. Estelle (1980) 445 U.S. 263, 284-285 [extensive criminality may justify finding the defendant has demonstrated the necessary propensities to warrant a lengthy prison term].) The fact the length of appellant's sentence exceeds his life expectancy is fodder for theoretical musing, but it does not, under current legal thinking, render his sentence unconstitutional.
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J. MOORE, J.