IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
November 17, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
GABRIEL VONZEL PRESLEY, DEFENDANT AND APPELLANT.
(Super. Ct. No. CRF073704)
The opinion of the court was delivered by: Hull , J.
P. v. Presley
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Gabriel Vonzel Presley of lewd and obscene conduct with a prior conviction (Pen. Code, § 314, subd. (1)--count 1) and disorderly conduct, a misdemeanor (id., § 647, subd. (a)--count 3). The jury acquitted defendant of a second count of lewd and obscene conduct and rejected his claim of insanity. In bifurcated proceedings, the court found a prior strike (id., § 667, subd. (b)-(i)) and three prior prison term (id., § 667.5, subd. (b)) allegations to be true.
Sentenced to state prison, defendant appeals. He contends the trial court abused its discretion in admitting propensity evidence. He further contends the propensity evidence that was admitted should have been sanitized and, if that contention is deemed forfeited, he claims defense counsel rendered ineffective assistance. We affirm the judgment.
FACTS AND PROCEEDINGS
About 7:00 a.m. on June 1, 2006, the victim was fueling her 18-wheel truck at a gas station when she saw defendant come out of a hotel across the street, gesturing to cars and singing. Defendant approached the victim. He had both hands inside his pants, was laughing, and appeared to be massaging his penis. As he drew closer to the victim, he exposed his penis and said he wanted her to "suck it" and that he wanted to "fuck" her. He tried to grab her. The victim did not recall at trial whether he actually touched her. She pulled back and told defendant to go away. He laughed. An unidentified man told defendant to go away as well. The victim informed defendant that she was going to call the police. Defendant laughed some more and went into the market at the gas station. The victim and the man called 911.
About five minutes later, defendant came out of market, approached the victim and tried to grab her. She threatened to hit him. Defendant touched himself but the victim did not recall at trial whether he exposed himself again. Defendant returned to the hotel.
A few minutes later, an officer arrived at the gas station. After taking the victim's report, the officer went to the hotel and found defendant. The victim positively identified defendant at a field showup. When told he was being arrested and the reason, defendant became belligerent, yelled profanities and volunteered that he simply wanted to ask the victim about the cab on her tractor. According to the officer, defendant admitted that he grabbed his crotch area over his clothing "in an attempt to maybe start a dating relationship with her, something to that effect, but it was more in . . . vulgarities and just obscene language." Defendant told the officer he wanted to go on a road trip and use the cab of the truck to engage in intercourse.
The prosecution presented propensity evidence. About 5:00 p.m. on June 23, 1994, an officer who was on patrol saw defendant masturbating near a fence while looking towards a playground some 40 to 60 yards away where children and other people were present. When defendant saw the officer, he stopped masturbating and put his penis in his pants. When the officer started to get out of his car to talk to defendant, defendant ran and jumped a fence. Defendant was eventually caught hiding behind a car. The officer returned to the area of the fence and saw no evidence of semen or signs of urination. At the jail, defendant claimed he had been urinating.
Defendant testified. With respect to the prior incident, defendant denied that he had been masturbating, claiming he had just finished urinating when he saw the officer. He acknowledged that he entered a guilty plea to lewd and obscene conduct. With respect to the current offense, defendant denied exposing himself to the victim. He claimed he had not taken his medications that day and was hearing voices. He claimed he commented on the cab of the victim's truck and said, "Maybe you can take me along on your route, possibly we can pull alongside of the road or a rest stop," while laughing and rubbing his crotch over his pants. Defendant claimed the victim got on her cell phone and he walked into the market. When he came out, he went back to the hotel without approaching the victim.
On cross-examination, defendant admitted prior convictions for battery on a correctional officer, pimping and pandering, rape, and sexual battery.
A defense psychologist opined that defendant was insane at the time of the current offense. A prosecution psychologist and a prosecution forensic psychiatrist both testified that defendant was sane at the time of the current offense.
Defendant contends the trial court abused its discretion in admitting the propensity evidence over defense counsel's objection and without sanitizing the evidence to exclude any reference to children. If we find defendant's argument that the evidence should have been sanitized to be forfeited, defendant claims he suffered ineffective assistance of counsel. We do not find an abuse of discretion on the part of the trial court. We conclude defendant forfeited his sanitization claim, but we find defendant did not lack effective assistance of counsel.
Pursuant to Evidence Code section 1108, the court admitted evidence that, in 1994, defendant masturbated in public. The prosecutor noted that a law enforcement officer had witnessed defendant's conduct, the incident occurred at a playground in a public park, and defendant was charged with and convicted of a misdemeanor. The court determined that the evidence was admissible under Evidence Code section 1108 subject to an analysis under Evidence Code section 352. The court found the evidence relevant and probative to show defendant's propensity to commit sexual offenses and to prove intent, common plan, mental state, and absence of mistake. The court determined that the evidence would not consume an undue amount of time. Although the prior incident was somewhat remote, inflammatory and could possibly confuse the jury, the court stated that there was a conviction, even though defendant still disputed the officer's version, and that the officer who witnessed the 1994 incident would be present to testify. The court noted that it had already ruled that the prosecutor would be allowed to introduce the misdemeanor conviction to impeach defendant and that the psychologist and psychiatrist could refer to the offense if it was part of their interviews.
Evidence Code section 1108, subdivision (a), provides, in relevant part, as follows:
"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."
In determining the probative value of the proffered evidence, the court must consider "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." (People v. Falsetta (1999) 21 Cal.4th 903, 917.) A court weighs the probative value of the evidence against its prejudicial effect, considering the following: (1) the inflammatory nature of the evidence; (2) the probability of confusing the jury; (3) the remoteness of the prior offense; and (4) the consumption of time. (Evid. Code, § 352; People v. Harris (1998) 60 Cal.App.4th 727, 737-739 (Harris).) We affirm the trial court's ruling on appeal unless it exercised its discretion "'"in an arbitrary, capricious or patently absurd manner."'" (People v. Frye (1998) 18 Cal.4th 894, 948, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Defendant argues that the court's conclusion that the prior offense was probative to show propensity under Evidence Code section 1108 was insufficient. Defendant claims the 1994 evidence was highly inflammatory because there was a "strong suggestion" that he had "sought sexual gratification at the expense of children," citing Harris, supra, 60 Cal.App.4th 727. He argues this crucial dissimilarity made the prior offense more egregious and reduced its probative value. He contends the availability of substantial evidence of the current offense weighed in favor of exclusion of the prior. He claims the inflammatory detail of children in the playground should have at least been excluded by the trial court. He also claims the 1994 incident had some tendency to confuse the jury, distracting it from the current offense and issue of insanity.
The two offenses "'need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108.'" (People v. Loy (2011) 52 Cal.4th 46, 63.) The evidence of defendant's 1994 lewd and obscene conduct had substantial probative value to the current offense of lewd and obscene conduct. Both offenses are the same and constitute sex offenses under section 1108, subdivision (d)(1)(A). Further, the prior offense was similar to the charged offense at least insofar as showing defendant's willingness to expose his penis in public in the presence of others. The 1994 incident was highly probative notwithstanding the fact that it occurred many years before the current offense, considering the fact that defendant violated parole several times and committed other offenses in the years between 1994 and 2006, and considering the similarities between the offenses which "'balance[s] out the remoteness.'" (People v. Branch (2001) 91 Cal.App.4th 274, 285.)
The alleged inflammatory nature of the prior incident is distinguishable from the facts in Harris. The prior and charged offenses in Harris were significantly different. In Harris, the defendant, a 52-year-old mental health nurse, was convicted of several sexual offenses involving two patients. (Harris, supra, 60 Cal.App.4th at pp. 730-733, 735.) "The charged crimes involving a breach of trust and the 'taking advantage' of two emotionally and physically vulnerable women are of a significantly different nature and quality than the violent and perverse attack on a stranger that was described to the jury." (Id. at p. 738.) The Harris prior offense involved "a viciously beaten and bloody victim," in contrast to the charged offenses that "at worst" involved defendant licking and fondling an "incapacitated woman and a former sexual partner." (Ibid.) Further, the jury in that case heard "an incomplete and distorted description of an event that did not actually occur." (Ibid.) Harris concluded the prior offense evidence was "inflammatory in the extreme." (Ibid.) We reversed the judgment because the prior offense evidence was "remote, inflammatory and nearly irrelevant and likely to confuse the jury and distract it from the consideration of the charged offenses." (Id. at p. 741.)
Here, the current offense was somewhat more egregious than the prior offense. Although in the prior offense, defendant was masturbating near a fence, 40 to 60 yards away from adults and children, there was no evidence that the adults and children were even aware of defendant's behavior.
We note that the prior incident resulted in a criminal conviction. When the prior does not result in a criminal conviction, "the jury might have been inclined to punish defendant for the uncharged offenses . . . and increased the likelihood of 'confusing the issues' [citation], because the jury had to determine whether the uncharged offenses had occurred." (People v. Ewoldt (1994) 7 Cal.4th 380, 405.) That was not the case here. Further, any risk of confusion was remedied by jury instructions on the elements of the charged offense and the burden of proof regarding the propensity evidence. The trial court instructed the jury that "[i]f you decide that the defendant committed the uncharged offense, . . . that conclusion is only one factor to consider along with all the other evidence." We add that the only jury requests made to the court during deliberations involved count 2 on which the jury acquitted defendant. We presume that the jury followed the limiting instruction (People v. Hollie (2010) 180 Cal.App.4th 1262, 1277) and conclude the jury was not likely confused by the admission of the propensity evidence.
Defendant's claim that the trial court erred in failing to sanitize the prior offense to delete reference to children in the playground is forfeited by his failure to make that request in the trial court. (People v. Williams (2008) 43 Cal.4th 584, 620.) We also reject his claim that the admission of the prior without sanitizing it rendered his trial fundamentally unfair and violated his due process rights. Defendant forfeited this claim as well, having not raised it below.
Defendant contends counsel rendered ineffective assistance by failing to request that the 1994 incident be sanitized to exclude any reference to children in the playground.
"Defendant has the burden of proving ineffective assistance of counsel. [Citation.] To prevail on a claim of ineffective assistance of counsel, a defendant '"must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice."' [Citation.] A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. [Citation.] Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. [Citation.] Moreover, prejudice must be affirmatively proved; the record must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 389.)
We need not decide whether trial counsel's failure to request that the court sanitize the prior fell below an objective standard of reasonableness because defendant has failed to establish there is a reasonable probability that he would have obtained a more favorable result had the court done so. Defendant did not dispute that he encountered the victim at the gas station and market. The presence of adults and children 40 to 60 yards away from the place where defendant was masturbating while looking in their direction had little to do with the prior offense especially in light of the fact that there was no evidence any of the adults or children were even aware of defendant's actions. The crux of the prior offense was defendant's willingness to commit a sexual offense involving public exposure of his penis. The weight of the remaining evidence against the defendant was considerable and, under these circumstances, it is not reasonably likely that the outcome would have been more favorable to defendant had defense counsel requested the trial court to sanitize defendant's prior.
The judgment is affirmed.
We concur: BLEASE , Acting P. J. MAURO , J.
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