IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Shasta
June 28, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ROBERT MICHAEL RODESKI, DEFENDANT AND APPELLANT.
Super. Ct. Nos. 07F7995, 09F5629
The opinion of the court was delivered by: Robie ,j.
P. v. Rodeski 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Robert Michael Rodeski molested the five-year-old daughter of his live-in girlfriend, and a jury found him guilty of committing a forcible lewd act on her. Based on this conviction, the court revoked his probation in an earlier drug case and sentenced him to prison for a total of 14 years.
Defendant appeals, contending the court erred in: (1) admitting evidence of his prior sexual misconduct; and (2) imposing a full, consecutive sentence on the sex offense. We conclude the trial court erred in failing to impose one-third the midterm on the subordinate offense and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
A Defendant's Lewd Act Against S.
On the morning of July 15, 2009, S. was playing the "tooth fairy" game in her bedroom. The game involved S. "jump[ing] off [her] bed and tr[ying] to fly." Defendant came into her bedroom, "grabbed [her] hair and thr[e]w [her] on the ground." He "pulled down his pants and showed [her] his peepee." He then "humped [her] on [her] back."
S.'s mother woke up to S. screaming. She brought S. into her bed and asked her what was wrong. S. said defendant had "grabbed her by her hair and thrown her on the ground." She did not tell her mother about the molestation because she was afraid.
S.'s mother confronted defendant, who was asleep on the couch. He was under the influence of drugs and was "out of it."
S. went to a neighbor's house. She told the neighbor defendant had "grabbed her by her hair," "thrown her down on the floor hard," "pulled his pants down," and "'waved his wienie in [her] face.'" The neighbor called police.
B Defendant's Prior Sexual Misconduct Against His Sisters
Defendant has two sisters: J., who is six years younger than he, and R., who is four years younger than he. J. contacted police when she heard defendant had molested S., because "he did it to [her], too, growing up."
J. was 33 years old at the time of trial. Beginning when she was 5 and defendant was 11, he would "pull [himself] on top of [her] and dry hump [her]." He would "rub himself against [her], hard." This behavior took place in her bedroom or her parents' bedroom and continued twice a month until she was 11. Defendant would also make his sisters play hide and seek in the dark. It was a "ruse" so he could "grop[e] and rub himself up against [them]."
R. was 35 years old at the time of trial. Defendant began touching her inappropriately from the time she was six or eight. The first time was when some friends came over to their house for a barbeque. The kids went into a bedroom to play "grab tag" in the dark. Defendant rubbed R.'s vagina and grabbed her buttocks. When she was nine and in the back of a van with her siblings, defendant laid "very close to [her] and gr[ou]nd his genitals on [her]." He stopped when their mother "sa[id] something." When R. was 13 and doing her laundry in the garage, defendant turned off the lights, "rubb[ed] on [her]," put her hand down his pants, "put [her] on the floor," and thrust on top of her with their clothes on "like [they] were having sex." The incident ended when defendant's body got "kind of tense and then he rolled off [her] and walked away."
I The Court Did Not Abuse Its Discretion In Admitting Evidence Of Defendant's Prior Sexual Misconduct
In admitting evidence of defendant's prior sexual misconduct, the court made several comments. The court noted that "the absence of . . . any sunset . . . of qualifying prior acts, in terms of their age, is significant, because it recognizes what . . . most people know implicitly, which is that a character trait that would allow one to molest children . . . doesn't go away." The court found defendant's prior sexual misconduct "substantially similar" to the current act. And, while it noted the testimony of the sisters would take longer than S.'s testimony and would add three to four hours to the trial, this was not an "undue consumption of time over an issue of minor importance."
Based on the court's comments, defendant contends the court erred in admitting evidence of his prior sexual misconduct. He argues the court "relied on a factually unsupported assumption that childhood behavior was an accurate measure of propensity in an adult," "there was no clear and convincing evidence that [he] knew the wrongfulness of his [prior] conduct" when he engaged in it, and the evidence was inadmissible under Evidence Code section 352. As we explain, the court's ruling was within the bounds of reason. (See People v. Fitch (1997) 55 Cal.App.4th 172, 183 [standard of review].)
The court's comments regarding the propensity to commit sexual offenses over time came in the context of comparing the statute allowing sexual propensity evidence (Evid. Code, § 1108) to the statute allowing domestic violence propensity evidence (Evid. Code, § 1109). The court's point was the former has no sunset provision but the latter does, which suggests the Legislature recognized that domestic violence propensity could diminish over time whereas sexual misconduct propensity would not without "some significant intervention." Contrary to defendant's argument on appeal, these comments were not a suggestion that defendant's sexual behavior was a "hardened, immutable trait."
Moreover, the evidence supported an inference defendant knew the acts against his sisters were wrong at the time he committed them, even though he was still a minor. Many times, defendant acted in the dark or acted when he and the victim were alone so his behavior would not be seen by others. During the incident in the van when others were present, he stopped upon hearing his mother's voice. These facts give rise to an inference defendant knew his conduct was unacceptable.
Finally, the court's balancing of the probative value of the prior acts against their prejudicial effect was sound. Defendant selected victims of similar age with whom he lived. S. was five when defendant molested her, and they were living together with her mother. His sisters were between five and eight when the prior misconduct began and he was living with them as well. Most importantly, his molestation of the girls was similar. He grabbed S., threw her on the ground, and "humped" her. He pulled himself on top of J. and "dry hump[ed]" her. He put R. on the floor and thrust himself on top of her "like [they] were having sex."
Balanced against these similarities were the remoteness of the prior acts and the extra time it took to present J.'s and R.'s testimony. While the prior acts were over 20 years old, "the passage of a substantial length of time does not automatically render the prior incidents prejudicial." (People v. Soto (1998) 64 Cal.App.4th 966, 991.) Other courts have found no abuse of discretion in allowing evidence of prior sexual offenses that occurred 20 or 30 years before the charged act. (See, e.g., People v. Branch (2001) 91 Cal.App.4th 274, 284-285 [30 years between acts]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [20 years].) And where as here, the prior acts were substantially similar to the current act and occurred repeatedly (i.e., about twice a month over a six-year period), the undue prejudice based on remoteness was diminished. Finally, while the court was concerned the sisters' testimony would be longer than the testimony of the current victim and would add three to four hours, this amount of time was not overwhelming given the eight witnesses it took to present the People's case involving the current offense.
In balancing these factors in favor of allowing the People to present evidence of defendant's prior sexual misconduct, the court did not abuse its discretion.
II The Court Erred In Failing To Impose One-Third The Midterm On The Subordinate Offense
Defendant contends the court erred in imposing a full, consecutive sentence on the sex offense. We find the court erred in failing to impose one-third the midterm on the subordinate offense.
The court sentenced defendant to prison for 14 years as follows: four years for the drug charge (which was transporting a controlled substance), two years for two prior prison terms, and eight years for the lewd act on S., which was the full, consecutive term (former Pen. Code, § 288, subd. (b)(1)).
In calculating this sentence, the court stated it was following the recommendation in the probation report. The probation report recommended the full, consecutive term pursuant to the discretionary sentencing provision of Penal Code section 667.6, subdivision (c). That subdivision allows a court to impose "a full, separate, and consecutive term . . . for each violation of an offense specified in subdivision (e) [enumerated sex offenses] if the crimes involve the same victim on the same occasion." (Pen. Code, § 667.6, subd. (c).) This subdivision did not apply because there was only one charged sex offense involving S.
Defendant also was not subject to the mandatory full consecutive sentencing provision of the same code section, which reads as follows: "A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) [enumerated sex offenses] if the crimes involve separate victims or involve the same victim on separate occasions." (Pen. Code, § 667.6, subd. (d).) This subdivision did not apply because defendant was not convicted of more than one enumerated sex offense. (People v. Jones (1988) 46 Cal.3d 585, 594, fn. 5.)
Because these subdivisions did not apply, the court was required to sentence defendant under the sentencing provisions of Penal Code section 1170.1, subdivision (a). Under that subdivision, if a sentencing court elects to impose consecutive sentences when a defendant is convicted of multiple offenses, it must first select and impose a principal term (consisting of the greatest term of imprisonment for any of the offenses including any term imposed for applicable enhancements) and then impose a consecutive subordinate term of one-third the midterm for the other offenses. The case must be remanded for resentencing under this subdivision.
The judgment is reversed insofar as it failed to impose one-third the midterm on the subordinate offense, but is otherwise affirmed. The matter is remanded for resentencing.
We concur: HULL , Acting P.J. MAURO ,J.
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