IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
December 29, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DENNIS RAY BEACH, DEFENDANT AND APPELLANT.
Super. Ct. No. 09F04719
The opinion of the court was delivered by: Robie, Acting P.J.
P. v. Beach CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Dennis Ray Beach guilty of two counts of lewd acts on a child under 14 years old and one count of indecent exposure. The court sentenced defendant to an aggregate prison term of six years eight months.
On appeal, defendant contends the trial court prejudicially erred by: (1) admitting his prior indecent exposure offenses as evidence of his propensity and intent to commit the charged lewd acts; and (2) instructing the jury that it could consider the evidence for this purpose.*fn1 We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prior Uncharged Offenses
E. P. testified defendant exposed his penis to her in 1975 when she was 11 or 12 years old. E. P. and a friend were sitting at a picnic table when defendant, dressed in a ranger's uniform, approached them and asked if they wanted to see people "doing it" in the bushes. E. P. said, "no." Defendant showed the children a magazine with pictures of naked people and then walked "into the trees to use the bathroom." When he returned, defendant asked E. P. "to help him zip up his pants," exposing his penis to her. E. P. told him to ask her friend, but defendant zipped up his pants. After declining defendant's offer to drive them to the gas station, E. P. walked home with her friend. E. P. later identified defendant in a photo lineup. K. G. testified defendant exposed his penis to her and a friend in 1975 when she was 12 years old. Defendant, wearing a park ranger uniform, approached the two girls while they were walking on a trail by a lake and asked them to identify children skinny dipping in the next cove. The girls followed him down the path. Defendant asked them to look into the cove to identify the skinny dippers and when the girls turned back around, he exposed his penis to them. K. G. grabbed her friend and they ran back on the trail. Defendant chased after them but the girls escaped. K. G. later identified defendant in a photo lineup.
Defendant testified he was guilty of both 1975 indecent exposure incidents described by E. P. and K. G. He also pled guilty to charges of indecent exposure in 1983 for exposing himself to a female college student and in 1991 for exposing himself to a female driver on a freeway. Defendant admitted to exposing himself in public about a dozen times.
Defendant moved in with his girlfriend, Georgie J. (T. L.'s grandmother), in 1992 or 1993, when T. L. was an infant. Every day after elementary school, T. L. and her brother went to Georgie's house until their mother took them home.
Seventeen-year-old T. L. testified that when she was about seven or eight years old, she was walking from the living room to the toy room when she saw defendant naked in the bedroom he shared with Georgie. It was in the evening and it was starting to get dark. Defendant motioned or tilted his head, "like come on, come here or something," but did not say anything to her. T. L. went into the room and sat on the bed. Defendant moved to the adjoining sink area, pulled Gold Bond powder from the wall and, facing T. L., rubbed the powder on his genitals. Without saying anything to her, defendant walked over to where T. L. was sitting on the bed. He stopped in front of her with his "inner thigh, private area" touching her knee, continuously rubbing powder on his genitals. He then extended one hand, the other still rubbing his genitals, and touched her chest area for a couple of seconds and then touched her vaginal area. He stopped suddenly and took a step back. T. L. walked out of the bedroom to the toy room and did not tell anyone what defendant had done. In 2008, T. L. told her mother, Deanna J., about two incidents.
After first stating she did not see defendant naked again, T. L. refreshed her memory from a police report and recalled a second incident a couple of days later when she saw defendant standing naked in the bedroom. This time he did not ask or motion for her to come in.
Regarding the touching incident, Officer Rebecca Purdy testified T. L. told her defendant "called her by name into" the bedroom and that "[w]hen she sat on the bed, she noticed him standing naked by the bathroom." Detective Bruce Wanner testified T. L. told him the "first time something happened [she] just walked by and saw him naked" and "[t]he second time is when [she] went into the room and something happened." Regarding the touching incident, T. L. told Detective Wanner it was daytime when defendant called her into the bedroom and "he was standing near the vanity area when she came in the room and then [she] saw him naked."
Defendant testified the alleged incidents did not occur and that he would not rub Gold Bond powder on his genitals because it would burn. Rather, he testified, T. L. had entered the bathroom on two occasions while he was taking a shower, talking to him as she sat on the toilet. Defendant told T. L. to leave and asked Georgie "not to let her come in there" because he "couldn't hear with the shower running, plus there was no room to exit with her sitting there." He did not close the bathroom door when he showered because Georgie "said it steamed up the room and ruined her artwork and stuff." Defendant also explained, and T. L. denied, that T. L. had seen defendant naked at various times when he, Georgie, T. L. and her brother, all in the nude, used the spa at Georgie's home. Defendant said he considered T. L. and her brother to be his grandchildren when he lived with Georgie.
Defendant further testified he and Deanna both worked at Kaiser until her employment ended following a confrontation between them. Defendant told his supervisor that Deanna threatened to tell "everybody [he] worked with that [he] was a registered sex offender." He said that he had not seen Deanna again after her termination.
Defendant claimed that since 1991, he no longer has the impulse to expose himself to others, but that he "still fight[s] those demons" and does "a real good job of it." He likened the impulses to an alcoholic, "you develop tools and stuff to cure these things or you regress."
Motion In Limine
The prosecution sought to introduce evidence of defendant's prior sexual offenses under Evidence Code*fn2 sections 1108 and 1101, subdivision (b). After hearing arguments on the motion, the court admitted evidence of defendant's 1975, 1983, and 1991 indecent exposure convictions under both sections. The court found the incidents admissible under section 1108 because indecent exposure is enumerated in subdivision (d) of section 1108. The court also found the incidents relevant and admissible under section 1101 to show defendant's intent because the incidents "have some similarity of conduct." Under section 352, the court determined "the jury would find this evidence probative . . . of the defendant's requisite intent" and to rebut any arguments of innocent and inadvertent contact between defendant and the victim. The court recognized that the jury would use the incidents as predisposition evidence but found that this use is "exactly what's contemplated" by section 1108.
The court instructed the jury that if it determined defendant committed the four prior indecent exposure offenses, it could "consider that evidence for the limited purpose of deciding whether or not the defendant acted with [the requisite] intent . . . or, the defendant had a motive to commit the [charged offenses], or the defendant's alleged actions were the result of mistake or accident." For these purposes, the jury was to "consider the similarity or lack of similarity" between the charged and uncharged offenses. Further, the jury could consider the uncharged offenses "to conclude . . . defendant was [pre]disposed or inclined to commit sexual offenses . . . [¶] [and] that the defendant was likely to commit and did commit a lewd or lascivious act with a child and indecent exposure as charged here." However, the court instructed the prior offenses were "not sufficient by itself to prove the defendant [wa]s guilty of all charged offenses" and were "only one fact to consider along with all the other evidence."
Verdicts And Sentencing
During deliberations, the jury requested "[t]o have [T. L.]'s testimony re-read." The next day, the jury found defendant guilty of two counts of lewd and lascivious acts on a child under 14 years old and one count of indecent exposure. The court sentenced defendant to concurrent terms of six years for the lewd acts and a consecutive term of eight months for the indecent exposure. Defendant filed a timely notice of appeal.
Evidence Of Prior Acts
Section 1101 prohibits the admission of character evidence, including evidence of specific instances of conduct, to prove a defendant's conduct on another occasion. (§ 1101, subd. (a); People v. Falsetta (1999) 21 Cal.4th 903, 913.) An exception to the rule exists when evidence of an uncharged offense is relevant to prove a fact, such as motive, intent, common plan, identity, or absence of mistake or accident, other than disposition to commit the charged conduct. (§ 1101, subd. (b).)
Section 1108, subdivision (a) provides an additional and broader exception to the general rule by allowing propensity evidence in sex offense cases. (People v. Falsetta, supra, 21 Cal.4th at p. 907.) Section 1108, subdivision (a) provides, "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."
Section 352 provides, "[t]he 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." When conducting this balancing test, a trial court considers such factors as "[the prior bad act's] 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 p. 917.)
Standard Of Review
The trial court's ruling on the admissibility of prior bad acts evidence is reviewed for abuse of discretion. (People v. Carter (2005) 36 Cal.4th 1114, 1149.) A court abuses its discretion when its ruling "falls outside the bounds of reason." (People v. DeSantis (1992) 2 Cal.4th 1198, 1226.) 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.'" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Admissibility Of Propensity Evidence
Defendant argues that, under People v. Earle (2009) 172 Cal.App.4th 372, his "prior acts of indecent exposure had no tendency in reason to prove acts of lewd touching" and that "cases admitting uncharged acts to prove a general propensity to commit sexual crimes were wrongly decided." The People rely on "the weight of authority holding that the charged conduct and uncharged conduct need not be similar for admission under Evidence Code section 1108." We conclude Earle is not instructive here and the trial court did not abuse its discretion in admitting the prior indecent exposure evidence.
In People v. Earle, supra, 172 Cal.App.4th at pages 378-379, the court concluded the defendant was entitled to severance of charges of indecent exposure and assault with intent to commit rape. The court addressed whether evidence of the indecent exposure charge was cross-admissible to show the defendant's propensity to commit the sexual assault charge under section 1108, answering "with a resounding negative." (Id. at pp. 396-400.) The court stated: "Does the commission of indecent exposure rationally support an inference that the perpetrator has a propensity or predisposition to commit rape? Not without some kind of expert testimony, it does not." (Id. at p. 398.) The court determined that for a prior offense to be relevant, the jury must have evidence before it that the prior offense has "some tendency in reason to show that the defendant is predisposed to engage in conduct of the type charged." (Id. at p. 397.)
Further, the court reasoned: "[A] propensity to commit one kind of sex act cannot be supposed, without further evidentiary foundation, to demonstrate a propensity to commit a different act. . . . No layperson can do more than guess at the extent, if any, to which a person disposed to one kind of deviant sexual conduct may be predisposed to another kind of deviant sexual conduct, criminal or otherwise. Is one who commits an act of necrophilia . . . more likely than a randomly selected person to commit an act of rape? Child molestation? Indecent exposure? Is a pedophile more likely than a rapist or a member of the public to commit necrophilia? Without some evidence on the subject, a jury cannot answer these questions." (People v. Earle, supra, 172 Cal.App.4th at p. 399.)
Relying on Earle, defendant argues "[t]here was no expert evidence that persons with a propensity to expose themselves go the extra distance and also have a tendencey [sic] to make physical contact with their victims and, absent such testimony, the conclusion that [defendant] had a propensity to touch was unfounded in fact or reason." To the extent Earle suggests or concludes categorically that an indecent exposure conviction is irrelevant to prove a different sexual offense without expert testimony, we disagree. We find no reason in law or policy to apply a categorical one-size-fits-all approach to the admissibility of evidence determinations under section 1108.
First, to do so would usurp the trial court's discretion to make case-by-case relevance determinations based on the nature, circumstances, and details of a defendant's prior sexual offenses and the charged sexual offenses. (See People v. Harris (2005) 37 Cal.4th 310, 337 ["The trial court has broad discretion in determining the relevance of evidence"]; People v. Falsetta, supra, 21 Cal.4th at pp. 918-919; People v. Fitch (1997) 55 Cal.App.4th 172, 183 [the admissibility of evidence determination "is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence"].) Rather, we will continue to review a trial court's ruling on the admissibility of prior sexual offense evidence under section 1108 for abuse of discretion. (People v. Carter, supra, 36 Cal.4th at p. 1149; People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.) We do not suggest that expert testimony may never be necessary to establish relevance between different sexual offenses; we suggest only that such determinations should be left to the traditional discretion of the trial court based on the individual facts of a given case.
Further, requiring a battle of the experts to establish the relevance of different sexual offenses to one another in every case would abrogate the statute's underlying policy to make prior sexual offenses more easily admissible in subsequent sexual offense prosecutions. Section 1108 "was intended in sex offense cases to relax the evidentiary restraints section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant's other sex offenses in evaluating the victim's and the defendant's credibility." (People v. Falsetta, supra, 21 Cal.4th at p. 911, italics added.) The "Legislature's principal justification for adopting section 1108 was a practical one: By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations. Section 1108 provides the trier of fact in a sex offense case the opportunity to learn of the defendant's possible disposition to commit sex crimes." (Falsetta, at p. 915.)
With these principles in mind, we turn to defendant's claims of abuse of discretion in this case.
Both Penal Code sections 288 and 314 are enumerated "sexual offenses" as defined in section 1108. (§ 1108, subd. (d)(1)(A).) "With the enactment of section 1108, the Legislature 'declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the witness.'" (People v. Soto (1998) 64 Cal.App.4th 966, 983, quoting Review of 1995 Cal. Legislation (1996) 27 Pacific L.J. 761, 762, italics added.) That is, "evidence of a defendant's other sex offenses constitutes relevant circumstantial evidence that he committed the charged sex offenses." (People v. Falsetta, supra, 21 Cal.4th at p. 920, italics added.) Thus, the uncharged indecent exposure offenses are presumptively admissible on the lewd act charges. (People v. Yovanov (1999) 69 Cal.App.4th 392, 405 ["evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions" that it is presumptively admissible]; People v. Frazier (2001) 89 Cal.App.4th 30, 41 ["It is enough the charged and uncharged offenses are sex offenses as defined in section 1108"].)
Next, we consider whether the trial court erred by finding the probative value of the uncharged offenses outweighed the risk of undue prejudice from their admission. (§ 1108, subd. (a); People v. Falsetta, supra, 21 Cal.4th at p. 917.) In determining probative value, the trial court considers whether the evidence is relevant to the credibility of a witness and has any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (§ 210.) "[T]he probative value of 'other crimes' evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense." (Falsetta, at p. 917.)
Here, the uncharged offenses evidence was relevant to the credibility of the complaining witness because the charged offenses were committed approximately 10 years before trial in seclusion without third party witnesses or substantial corroborating evidence, and defendant denied committing them. (People v. Falsetta, supra, 21 Cal.4th at pp. 915, 917.) Further, we note that the indecent exposure and lewd acts charges share the common element of lewd intent, a disputed fact of consequence to the determination of the action. Criminal intent is rarely shown by direct evidence and generally must be inferred from defendant's conduct and surrounding circumstances. (In re Paul C. (1990) 221 Cal.App.3d 43, 54; People v. Sharp (1994) 29 Cal.App.4th 1772, 1791, overruled on another ground in People v. Martinez (1995) 11 Cal.4th 434, 452.)
The surrounding circumstances of the 1975 indecent exposure offenses were similar to T. L.'s description of the charged offenses: defendant first exposed his genitals to a young girl and then took affirmative steps to get closer to her. E. P. was 11 or 12 years old when defendant exposed his genitals to her and then asked her "to help him zip up his pants." Similarly, K. G. was 12 years old when defendant exposed his genitals to her and then chased after her. Both 1975 uncharged offenses involved more than mere indecent exposure; defendant took affirmative steps to get closer to the young girls, just as T. L. claimed he moved closer to her. Also, defendant committed the acts against the children under the ruse of trust, by wearing a park ranger uniform during his 1975 offenses and through his grandfather-granddaughter relationship with T. L. here. That defendant escalated to touching T. L. in this case does not negate the other relative similarities of his actions in the uncharged offenses.
In addition, we note that the evidence of the charged and uncharged crimes came from independent sources (separate victims), increasing the prior offenses' relative probative value. Although defendant's 1983 and 1991 indecent exposure offenses involved adult women and no evidence of a pursuit of closeness, the offenses were relevant to show a continuous course of conduct and tended to show a difference in defendant's actions and motivations involving young girls and adult women, i.e., affirmative pursuit of closeness with young girls but not adult women.
Turning to the question of remoteness, "[r]emoteness of prior offenses relates to 'the question of predisposition to commit the charged sexual offenses'" (People v. Branch (2001) 91 Cal.App.4th 274, 285, quoting People v. Harris, supra, 60 Cal.App.4th at p. 739), and the probative value of an uncharged offense is diminished by its remoteness to the charged offenses (see People v. Falsetta, supra, 21 Cal.4th at p. 917). The uncharged offenses were committed in 1975, 1983 and 1991, while the charged offenses occurred around 1999 to 2001 The 24 or 26 years between the 1975 incidents and the charged offenses is significant and could be considered remote; however, in situations where the sexual misconduct was similar to the charged acts, courts have allowed evidence after similar periods of time. (People v. Waples (2000) 79 Cal.App.4th 1389, 1393, 1395 [allowing an uncharged molestation from approximately 20 years prior].) Further, defendant was not crime-free from 1975 to 1999-2001 as evidenced by the 1983 and 1991 offenses. Thus, the trial court could have reasonably concluded the uncharged indecent exposure offenses were highly probative of the lewd act charges in this case, given the similarities between the offenses and the independent sources of the evidence.
Finally, we turn to the risk of undue prejudice. Prejudice under section 352 is characterized as "'evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.'" (People v. Scheid (1997) 16 Cal.4th 1, 19.) The 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, supra, 8 Cal.4th at p. 1124.) There was no miscarriage of justice here. The prior indecent exposure evidence: (1) was not highly inflammatory relative to the charged lewd act offenses; (2) was not likely to distract the jurors from their main inquiry because the testimony only took a minimum amount of pages of the reporter's transcript and was devoid of any inflammatory details; and (3) did not impose an undue burden on defendant in defending against the uncharged offense because he admitted all of the acts and the 1975 victims were subject to cross-examination at trial. (See People v. Falsetta, supra, 21 Cal.4th at p. 917.)
In light of the probative value of the uncharged indecent exposure offenses and the lack of any significant prejudicial effect of the uncharged offenses, we cannot say the trial court abused its discretion by admitting the evidence. We therefore reject defendant's claim of error.
Finding that the uncharged offenses were admissible under section 1108, we do not address the admissibility of the same evidence under section 1101. Further, we need not address defendant's claim of instructional error because the sole basis for that claim "flows from the trial court's predicate abuse of discretion in allowing the prior indecent exposure convictions to be used as evidence of a propensity to commit a lewd touching."
The judgment is affirmed.