(Super. Ct. No. 06HF1734) Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Reversed.
The opinion of the court was delivered by: O'leary, Acting P. J.
CERTIFIED FOR PUBLICATION
Lee Vincent Cottone appeals from a judgment after a jury convicted him of four counts of committing a lewd act upon a child under the age of 14, and found true he had substantial sexual conduct with a child as to all counts. Relying on Penal Code section 26*fn1 and Evidence Code section 1108, Cottone argues the trial court erroneously admitted evidence that approximately 32 years ago he committed a lewd act on his sister. Cottone argues: (1) section 26 is applicable to Evidence Code section 1108; (2) the prosecutor failed to present clear and convincing evidence Cottone appreciated the wrongfulness of the 32-year old prior sexual misconduct; (3) the prior sexual misconduct evidence was not admissible pursuant to Evidence Code section 1108 because it was irrelevant, remote, and prejudicial; and (4) the trial court was required to submit to the jury the issue of whether Cottone appreciated the wrongfulness of his conduct.
As we explain below, we agree section 26 is applicable to Evidence Code section 1108, and the trial court erred in not submitting to the jury the issue of whether Cottone appreciated the wrongfulness of his prior sexual misconduct. Because the jury, and not the trial court, should have determined whether the prosecutor offered clear and convincing evidence Cottone appreciated the wrongfulness of his prior sexual misconduct, and the evidence of guilt was not overwhelming, we conclude Cottone was prejudiced by the error. We reverse the judgment.
B., who was eight years old, lived in the South Bay. During school breaks and summer vacation B. would visit Cottone, her uncle, and Jeanie Cottone (Jeanie), her aunt, in Irvine for multiday visits. B. enjoyed spending time with Jeanie because they would go to the movies, shop, and play games. Because B. was scared to sleep alone, she would sleep between Jeanie, who wore earplugs, and Cottone, in their bed.
The first evening she slept in the Cottones' bed, B. woke up because Cottone was touching her vagina, breasts, and buttocks with his hand. B. moved to get Cottone to stop, but she did not tell him to stop. She did not wake up Jeanie, tell her what happened, or say anything to Cottone because she was scared. She did not ask to sleep in the empty bedroom because she was scared to sleep alone.
The next night, the same thing happened. When B. returned home, she did not tell anyone what happened because she was scared.
On her second visit to the Cottone residence, B. again slept with the Cottones. Cottone again touched her vagina, breasts, and buttocks.
When B. was 11 or 12 years old, B.'s sister, K., and B.'s cousin, C., began spending the night at the Cottone residence; this occurred approximately
10 to 15 times. The three girls slept in a bed in the guestroom; B. and C. would sleep on the outside and K. would sleep in the middle. During the night, Cottone would enter the dark room, sit on the bed, and pull back the covers. Cottone would touch B.'s vagina, breasts, and buttocks. B. did not tell her sister or cousin what had happened because she was scared.
B. spent the night at the Cottone residence between two and four days, three to four times a year for approximately four years, and Cottone touched B. inappropriately every time she spent the night.
At some point, B. began telling her mother, J., she did not want to spend the night at her uncle and aunt's house. J. would tell B. that Jeanie was expecting her, and B. would go. B. did not tell her mother why she did not want to spend the night.
A few years later, B. and her mother were going to a family bridal shower. J. was complaining about how Cottone treated her son, and B. said, "'Well, if you think that's bad, you should -- you don't want to know what he ha[d] done to [her][.]'" B. told her mother what had happened.
An information charged Cottone with four counts of committing a lewd act upon a child under the age of 14 (§ 288, subd. (a)) (count 1). The information alleged he had substantial sexual conduct with a child as to all counts (§ 1203.066, subd. (a)(8)). Cottone's first trial ended with a hung jury and a mistrial.
Before his second trial, Cottone moved to exclude evidence of a covertly recorded telephone call and evidence of prior sexual misconduct. The prior sexual misconduct consisted of a 1966 incident where 13- or 14-year-old Cottone allegedly touched the vagina of his five- or six-year-old sister, L. The covertly recorded telephone call concerned a telephone call L. made to Cottone in 2006 to get him to confess to touching her vagina in 1966. The following month, Cottone filed a supplement to his motion. The prosecutor responded to the motion, and Cottone replied.
At an Evidence Code section 402 hearing, L. testified she was born in July 1961. L. stated she started kindergarten in 1966 when she was five years old. She said school started in September and she met her friend, L.P., on the first day of kindergarten. L. stated her home had a basement, and her brothers' bedrooms were in the basement, and her and her sisters' bedrooms were on the ground level. She testified L.P. was at her house when Cottone asked them if they wanted to play a game called,
"giggy-giggy." L. stated L.P. went home, and Cottone picked her up and carried her downstairs; they were alone. She said that just outside the doorway to Cottone's bedroom, Cottone put his finger in her underpants and touched her vagina. L. also testified to another incident where L.P. spent the night and Cottone entered L.'s bedroom and put his hands on L.P. L. told Cottone to leave, which he did, before L.P. woke up.
After discussing the applicable case law, the trial court ruled section 26 was applicable to Evidence Code section 1108. The trial court stated the prosecutor rebutted with clear and convincing evidence section 26's presumption by establishing "the minor appreciated the wrongfulness of the charged conduct at the time it was committed." The court opined that based on the uncertainty of the evidence, it appeared Cottone was just short of his 14th birthday. Concerning the circumstances of the prior sexual misconduct, the court stated Cottone turned the sexual contact into a game. In concluding Cottone appreciated the wrongfulness of his conduct, the court explained: "He attempted to lure the witness downstairs. And it shows to me concealment. He went down to the bedroom area with no one else around. He initially also wanted to play the game with [L.P.], she declined, which to the court, based on what happened, is evidence that he had a propensity for sexual contact with young girls even at a young age." In concluding Cottone appreciated the wrongfulness of his conduct, the court also relied on the incident where Cottone came into her bedroom and touched L.P.
The trial court, after reviewing the moving papers and hearing argument, ruled the evidence of the 1966 incident regarding L. was admissible pursuant to Evidence Code section 1108. The court explained the prior sexual misconduct evidence was highly probative because it was similar to the charged offenses. The court noted the female victims were young family members, and the touching was similar in type (touching of the vagina) and where it occurred (his home). The court stated the prior sexual misconduct evidence was highly probative because defense counsel planned to attack B.'s credibility. The court believed the prior sexual misconduct evidence was less inflammatory than the charged offenses. The court opined the possibility of confusing the issues was slight because the jury was not likely to convict Cottone in this case based on the fact he was not convicted of the prior sexual misconduct, and L.'s testimony would likely be brief. The court correctly stated the issue of whether the prior sexual misconduct evidence was too remote was the critical issue in its analysis. The court stated: "The main big issue is remoteness, the fact that he's lived a blameless life for 32 years and there is no, no doubt about it that is a long time, you know. And if [Cottone] is convicted I don't know what [the] [C]court of [A]ppeal will do with that. It's my call in terms of the discretion of the trial court. I'm trying to analyze everything I possibly can to make a fair call on this. It's a tough issue. I'm going to find that there are significant similarities with respect to the [Evidence Code section] 1108 conduct and these instances here with [B.] that I've already mentioned that in my mind balance out the remoteness or offset it somewhat as to make it more probative." The court concluded it did not believe the evidence would evoke an emotional bias against Cottone. In concluding the probative value of the prior sexual misconduct evidence outweighed any undue prejudice, the court relied on the fact two jurors voted for acquittal in Cottone's first trial.*fn2
The prosecutor offered B.'s testimony as detailed above. Defense counsel cross-examined B. thoroughly about when the visits began, when the visits ended, the frequency of the visits, and the number of times Cottone molested her. Defense counsel used B.'s prior testimony to challenge her credibility.
The prosecutor also offered the testimony of Dr. Laura Brodie, a clinical and forensic psychologist, who is an expert in child sexual abuse accommodation syndrome, a syndrome where it is assumed a child was sexually abused to evaluate the child's behavior. Brodie, who was not familiar with the facts of this case, testified it was normal for a child to delay reporting sexual abuse for five years.
The prosecutor offered the testimony of L., Cottone's sister, who stated she is eight to nine years younger than Cottone; Cottone was 56 years old at the time of trial. L. testified to the following: when she was five or six years old she was in the kitchen with her friend and Cottone, and she did not think anyone else was home. Cottone asked them if they wanted to go into the basement and play a game called "giggy giggy." Her friend went home. Cottone picked up L., put her on his shoulder, and carried her downstairs. When they were in the basement, just outside one of the bedrooms, Cottone put his finger in her underwear and touched her vagina. L. did not think he put his finger inside her vagina.
Cottone offered C.'s testimony. C., 14 years old at the time of trial, testified Cottone was her grandfather. C. confirmed she frequently spent the night at her grandfather's home with B. and K. and the three girls slept together either in a bedroom, in the hallway, or on the sofa. She stated Cottone never tried to touch her or touched her inappropriately. She said B. never told her that Cottone touched her inappropriately.
Cottone also offered the testimony of his cousins, who were in their mid-20s at the time of trial. They testified that when they were young girls, approximately the same age as B., they frequently spent the night at Cottone's ...