IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
September 9, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JOHN SCOTT SIGLE, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F05949)
The opinion of the court was delivered by: Raye , P. J.
P. v. Sigle
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 convicted defendant John Scott Sigle of the continuous sexual abuse of a child. (Pen. Code, § 288.5, subd. (a).) The court sentenced defendant to state prison for the upper term of 16 years.
Defendant appeals. He contends (1) the trial court prejudicially erred in admitting propensity evidence and (2) the trial court improperly imposed a no-contact order. The People concede that the no-contact order was imposed in error. We agree and will order the judgment modified, striking the no-contact order. We reject defendant's remaining contention and will affirm the judgment.
From 1996 to 2001 defendant lived with B.D.'s family. When defendant moved into the family home, B.D. was four or five years old and defendant was in his mid-20's, working for B.D.'s father. Defendant was considered a member of the family. When no one was home or family members were in another part of the house, defendant had B.D. sit between his legs, and he would put his hand down her pants and rub her vagina. On two or three occasions when B.D. took a bath, defendant sat or knelt next to the bathtub and rubbed her vagina. About once a week, she would wake up at night and discover that defendant had his hand down her pants and was rubbing her vagina.
When B.D. was six or seven years old, she was sick and stayed home from school. Defendant was home alone with her. As she got dressed to go to the doctor's office, defendant repeatedly asked to put his mouth on her vagina. After repeatedly saying no, she finally agreed. Defendant spread her legs apart and put his mouth on her vagina for about 15 seconds. One time when defendant was in the bathroom, he asked her for some toilet paper. When she delivered it, he opened the door completely so she could see that he had his penis in his hand. She threw the toilet paper at him and left the room. When she grew older, defendant continued to touch her at night but not so much during the day.
B.D. was about nine years old when defendant moved out of the family home. She was relieved but did not tell her family about defendant's behavior for many years. B.D. told her friends when she was in junior high school that she had been molested but did not identify the molester. On Christmas Day in 2007, 15-year-old B.D. finally told her mother that defendant had molested her.
The prosecutor presented propensity evidence. When D.T. was six or seven years old, she met defendant. In 2001, when D.T. was 12 years old and defendant was 30 or 31 years old, defendant began kissing her. When she was 13 years old, they had oral sex about four times a day and sexual intercourse about 12 times per week. D.T.'s father reported defendant to the police. Defendant was arrested and charged with child molestation, but the charge was dismissed when D.T. denied a sexual relationship with defendant. D.T. explained that she had lied because she was in love with defendant, who had asked her to lie.
When D.T. was 14 years old, defendant asked D.T.'s father for permission to marry her. Angry, D.T.'s father screwed D.T.'s bedroom window shut and installed a camera. Defendant removed the camera and screws at night, had sex with D.T., spent the night, and then left in the morning, reinstalling the screws and camera.
At 14 years of age, D.T. became pregnant with defendant's child and gave birth just one month after her 15th birthday. When she was almost 16 years of age D.T. became pregnant again with defendant's child. After this child was born, D.T. admitted to police that she had previously lied about her relationship with defendant. After DNA tests, new charges were filed and defendant was convicted of statutory rape (Pen. Code, § 261.5) in July 2007. When D.T. turned 18 years old, her relationship with defendant ended because he had been having sex with some of her friends and he started calling her names.
Defendant testified. He denied ever touching B.D. inappropriately. He only touched her when he tied her shoes or put on her socks. He knew of no reason why B.D. would lie except that he had had an affair with B.D.'s mother. B.D.'s mother had testified that she never developed anything more than a friendship with defendant.
Defendant denied that he snuck into D.T.'s house. He claimed her father welcomed him into the home until they had a "falling out." He was later convicted of a felony, but defendant believed he had been convicted of a misdemeanor.
Defendant contends the trial court abused its discretion and prejudicially erred in admitting propensity evidence. We find no error.
The prosecutor moved to admit the propensity evidence pursuant to Evidence Code section 1108. The prosecutor claimed that the conviction involving a child older than B.D. showed defendant's unusual, illegal, and "continuing pattern of interest in young girls." Although defendant's conduct in the current case did not progress to intercourse, the prosecutor argued that the two cases were similar in that defendant "ingratiated himself into the family" and "use[d] that position of trust to abuse it."
Defense counsel objected, claiming the propensity evidence was not sufficiently similar to the charged conduct to be probative. Defense counsel claimed the propensity evidence showed a more mature child "was trying to have a relationship with an older man."
In admitting the propensity evidence, the trial court conducted an analysis under Evidence Code section 352. The trial court cited the fact that both victims were underage. The trial court determined the offense against D.T. occurred not long after defendant committed the offenses against B.D., so it was not remote. The trial court found there would be no significant consumption of time since there was only one witness. The trial court determined the jury might consider the propensity evidence less inflammatory than the current charged offenses because D.T. claimed she "consent[ed]." Since defendant had already been convicted of the offense related to D.T., the trial court found the jury would be unlikely to confuse the issues. The trial court concluded that the propensity evidence was not so inflammatory as to deprive defendant of a fair trial.
Evidence Code section 1108 authorizes the admission of evidence that a defendant committed another sexual offense or offenses, to show the defendant's propensity to commit such offenses. (Evid. Code, § 1108, subd. (a); People v. Falsetta (1999) 21 Cal.4th 903, 907.) To satisfy due process concerns, however, the admission of propensity evidence is subject to Evidence Code section 352, under which the prejudicial effect of such evidence must be weighed against its probative value. (People v. Lewis (2009) 46 Cal.4th 1255, 1288-1289; Falsetta, supra, at pp. 907, 916; People v. Escudero (2010) 183 Cal.App.4th 302, 310 (Escudero).)
"'The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense. Other factors affecting the probative value include the extent to which the source of the evidence is independent of the charged offense, and the amount of time between the uncharged acts and the charged offense. The factors affecting the prejudicial effect of uncharged acts include whether the uncharged acts resulted in criminal convictions and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses.' [Citation.] 'The weighing process under [Evidence Code] section 352 depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules.' [Citation.]
"We will only disturb the trial court's exercise of discretion under Evidence Code section 352 'when the prejudicial effect of the evidence clearly outweighed its probative value.' [Citation.] A trial court abuses its discretion when its ruling 'falls outside the bounds of reason.' [Citation.]" (People v. Hollie (2010) 180 Cal.App.4th 1262, 1274.)
The trial court did not abuse its discretion in finding the probative value of D.T.'s testimony outweighed any prejudicial effect. Defendant went from B.D. to D.T. in a relatively short period of time. Defendant molested B.D. beginning when she was four or five years old and ending in 2001 when she was nine years old. D.T. was 12 years old in 2001 when defendant started kissing her, and their relationship ended when D.T. was 18 years old. Defendant knew both families, having met D.T. when she was six or seven years old and having lived with B.D.'s family. Defendant rubbed B.D.'s vagina and orally copulated her. Defendant's kissing of D.T. led to oral copulation and sexual intercourse. D.T.'s claims were independent of B.D.'s. D.T.'s claims were not more inflammatory than B.D.'s. As the trial court noted, D.T. claimed she "consent[ed]," although it was legally ineffective because of her age. (Pen. Code, § 261.5, subd. (a).) Only D.T. testified about defendant's sexual misconduct with her. The evidence concerning D.T. was not likely to confuse or mislead the jury as defendant was convicted of statutory rape. Moreover, the trial court instructed the jury on propensity evidence. (CALCRIM No. 1191.) There was no "'substantial likelihood the jury [would] use [the propensity evidence] for an illegitimate purpose.' [Citation.]" (Escudero, supra, 183 Cal.App.4th at p. 310.) Here, the probative value of propensity evidence was substantial and not outweighed by the prejudicial effect. The trial court did not err in admitting the propensity evidence.
Defendant contends and the People concede that the trial court erroneously imposed a no-contact order. The trial court ordered defendant not to have "any contact with the victim or the victim's family, either direct or indirect." The court stated that the order was "pursuant to law" but did not specify what law. Penal Code section 1202.05 requires a court to prohibit visitation between a defendant and a child victim if the defendant is sentenced to prison for violating a specified sex offense and the victim is under the age of 18 years. The statute does not apply to visitation with anyone other than the child victim. The court's order was not limited to visitation or to the victim, and the victim is now over the age of 18 years. Nor is the no-contact order authorized under Penal Code section 136.2, which is limited to protecting victims or witnesses while criminal proceedings are pending. (People v. Ponce (2009) 173 Cal.App.4th 378, 382-383.) The trial court issued an unauthorized no-contact order and we will modify the judgment, striking the order.
We note that the Legislature added Penal Code section 1201.3 on September 30, 2010, effective January 1, 2011, which authorizes the court, "[u]pon the conviction of a defendant for a sexual offense involving a minor victim . . . , to issue orders that would prohibit the defendant . . . , for a period up to 10 years, from harassing, intimidating, or threatening the victim or the victim's family members or spouse." (Pen. Code, § 1201.3, subd. (a).) Notice of the prosecutor's intent to request such an order is required "at the time of conviction," and "counsel shall have adequate time in which to respond to the request before the order is made." (Id. at subd. (c).)
Here, defendant was convicted prior to the effective date of the statute. Defendant was convicted by the jury on May 18, 2010 and was sentenced on July 30, 2010. Penal Code section 1201.3 does not authorize the no-contact order in this case.
The judgment is modified, striking the no-contact order. The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: BUTZ , J. HOCH , J.
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