IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
December 9, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
BYRON FRANKLIN ARNETT, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F9378)
The opinion of the court was delivered by: Raye , P. J.
P. v. Arnett 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
An information charged defendant Byron Franklin Arnett with two counts of lewd or lascivious acts against a child under the age of 14. (Pen. Code, § 288, subd. (a).)*fn1 A jury found defendant guilty and the court sentenced him to 60 years to life in state prison. Defendant appeals, challenging the sufficiency of the evidence and asserting the court erred in admitting evidence of another instance of sexual abuse, prosecutorial misconduct, ineffective assistance of counsel, cumulative error, and sentencing error. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND The Information
An amended information charged defendant with two counts of lewd or lascivious acts against a child under the age of 14. In addition, the information alleged a prior offense (burglary), both as a second strike and a serious felony. The information further alleged there were multiple victims. (§§ 288, subd. (a), 1170.12, 667, subd. (a)(1), 667.61, subd. (b).)
A jury trial followed. The evidence revealed the following scenario:
In January 2008 defendant visited his brother, R.A., and his family. R.A. and his girlfriend, S.P., had a son, C.A., and three daughters: A.A., aged 10; L.A., aged 6; and J.A., aged 3.
The night in question, all the children slept in one bed, with C.A. at the foot of the bed. A.A. awoke and saw defendant touching her sisters. She saw defendant put his hand down L.A.'s pajama pants and touch her vagina. Defendant attempted to touch J.A., who told him to stop, "or I'm going tell [sic] my dad." L.A. said defendant touched her below the waist, where she goes "potty."
The girls' maternal uncle, R.P., saw the three sisters go into the bathroom at around 2:00 a.m. Concerned, R.P. went upstairs to the bedroom to check on them. They stood by their dresser, crying. When he asked what was wrong, they did not answer.
At about the same time, S.P., the girls' mother, appeared and asked what had happened. R.A. began yelling at S.P. R.P. intervened to verbally defend his sister. As the argument between R.A. and R.P. escalated, they went outside to fight. Police arrived and arrested R.A.
After the arrest, S.P. also asked the girls what was wrong. L.A. told her mother someone touched her "down low." J.A. said something had happened to her and pointed to her vaginal area. S.P. reported the incident the following morning.
The day after the incident, Pamela Hewlett, a social worker with Shasta County Children and Family Services, contacted A.A. and L.A. at school and interviewed them separately. A.A. said defendant came into the bedroom and tried to touch her in her "privates." A.A. pushed away his hand. A.A. saw defendant touch her two sisters, L.A. and J.A.
L.A. told Hewitt that defendant put two fingers under her clothes "inside her potty." L.A. saw defendant's "potty," and defendant's pants and underwear were down at the same time.
Hewitt testified L.A. and A.A. were among the most traumatized victims she had ever interviewed during her tenure as a social worker. Both L.A. and A.A. were visibly shaking, crying, and scared by what had happened.
Four days later, Kristen Fredrick, a child abuse investigator, interviewed the three girls. Fredrick asked some preliminary questions to ascertain whether J.A. understood the difference between the truth and a lie. Because J.A. did not, Fredrick could not interview her.
Fredrick interviewed A.A., who seemed very frightened and nervous. A.A. only shook her head "yes" or "no" when questioned.
In her interview with Fredrick, L.A. was more communicative. L.A. was scared and shy because of her age, but more communicative than A.A. L.A. told Fredrick someone "touched her bad." Using a diagram of a little girl, she pointed to the vagina as the location of the touching. In the videotape of the interview, played for the jury, L.A. said defendant removed his pants and she saw his private part.
In December 2008 police investigator Brian Barner interviewed defendant. A videotape of a portion of the interview was played for the jury. Barner told defendant he wanted to tell him what defendant's nieces were saying and get his side of the story. Defendant responded he had "a pretty good idea" what they were saying.
Defendant told Barner he had not been in the bedroom alone with the children. He only went into the room with the girls' maternal uncle. Defendant described his nieces as good children who obeyed their father. He told Barner it was up to him to decide whether defendant was telling the truth.
Barner told defendant the girls had accused him of touching them. Barner suggested defendant admit his wrongdoing for his nieces' sake. Defendant shook his head and said he was ready to go home.
In December 2009, a year later, Fredrick again interviewed A.A. Fredrick asked A.A. if she saw defendant touch J.A. A.A. said she only saw defendant touch L.A. In the original interview, almost two years prior, A.A. said defendant touched both of her sisters. She previously also said J.A. told her defendant had touched her.
S.P. testified it was difficult to testify against defendant because he was a member of the family. It "hurt" S.P. to witness her daughters' testimony about defendant's actions. According to S.P., "everybody is just breaking apart because of all of this," and her family had turned against the girls' father as a result of the incident.
Prior Crimes Evidence
The parties stipulated that defendant was convicted of a misdemeanor, annoying or molesting a child, in November 2002. (§ 647.6.) Defendant's best friend, Steven M., testified that in August 2002 defendant visited his home. Steven M.'s three- or four-year-old niece V. was present. Defendant had been drinking, and Steven M. left the house for a few minutes. When Steven M. returned, he found defendant lying on top of V., with his pants down around his ankles. V.'s panties were down around one ankle. Steven M. ended the incident and the friendship.
Defendant testified he went to R.A.'s house the night of the incident. The duo drank some beers and defendant went upstairs to sleep in his nephew's bedroom.
R.A. called defendant downstairs, and on the way R.A. and defendant went into the girls' room to check on them. Defendant walked in first, turned on the light, and watched R.A. tuck the girls into bed. R.A., followed by defendant, left the bedroom.
R.A. and defendant drank some more beer downstairs. Later, R.A. and R.P. got into a fight and the police were called. After the police arrived, defendant left. He returned after the police left and spent the night in C.A.'s bedroom. Defendant denied touching L.A. or J.A. on the vagina. Defendant denied being alone with his nieces the night of the incident.
Defendant testified he had reformed himself following his 2002 conviction. Defendant said the testimony concerning the incident was exaggerated and that it was mainly about a fight he had with Steven M.. He entered a plea in the case in an effort to resolve it.
Defendant stated he was mistaken when he told the investigator he had been in his nieces' bedroom with R.P. rather than his brother R.A. Although defendant realized his mistake, he did not correct it with the investigator. Defendant also told Investigator Barner that he slept downstairs in a chair following his brother's arrest; he did not tell the investigator he slept in C.A.'s room.
Verdict and Sentencing
The jury found defendant guilty on both counts and found the allegations true. The court sentenced defendant to 60 years to life in state prison: 15 years to life on each count, doubled pursuant to section 1170.12, to run consecutively. The court further imposed and stayed a five-year sentence for the prior serious felony. (§§ 667, subd. (a)(1), 654.) Defendant filed a timely notice of appeal.
DISCUSSION SUFFICIENCY OF THE EVIDENCE
Defendant argues insufficient evidence supports his conviction for committing a lewd and lascivious act against J.A. Defendant characterizes the evidence in support of his conviction as "so weak as to be legally insufficient," requiring reversal.
Standard of Review
In reviewing a defendant's challenge to the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence. Substantial evidence is evidence such that a reasonable jury could find the defendant guilty beyond a reasonable doubt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
We do not reassess the credibility of witnesses, and we draw all inferences from the evidence that supports the jury's verdict. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) Unless the testimony of a witness is physically impossible or inherently improbable, it is sufficient to support a conviction. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
A violation of section 288 occurs when there is any touching of an underage child with the intent to sexually arouse either the defendant or the child. A lewd or lascivious act can occur through the victim's clothing and can involve any part of the victim's body. (People v. Martinez (1995) 11 Cal.4th 434, 444.)
Defendant reviews the evidence against him and concludes it is insufficient to support his conviction for molesting J.A. Defendant points out the equivocal testimony of S.P. and A.A., A.A.'s changing her story in an interview two years later, J.A.'s failure to testify or report the molestation to law enforcement, and the lack of medical evidence to support the conviction. A review of the evidence refutes this claim.
In the early morning, alerted by her three daughters' crying, S.P. asked what was wrong. L.A. told her mother defendant had touched her "down low." J.A. also said something happened and pointed to her vaginal area. Her mother reported the incident to child protective services.
The following day, A.A. told social worker Hewitt that she saw defendant touch both J.A. and L.A. A few days later, A.A. repeated her story to an investigator. At trial, A.A. testified she saw defendant touch her sisters. After defendant tried to touch J.A., J.A. told him to stop and threatened to tell her father.
Two years after the incident, A.A. told Investigator Fredrick she had not seen defendant touch J.A. Instead, A.A. told Fredrick that J.A. had told her about the touching. However, it is undisputed that the passage of time can impact memory, and A.A.'s later account does not diminish the impact of her account immediately after the crime.
Defendant contends A.A.'s statement to the social worker and her statements two years later refer only to "'touches' -- there was no indication at trial that these were 'inappropriate' touches." However, immediately after the incident, J.A. told her mother something happened and pointed to her vaginal area. A.A. told the investigator defendant touched J.A., who threatened to tell their father. All three girls appeared extremely traumatized to the social worker, and scared and nervous to the investigator. This evidence supports a finding that defendant's touching of J.A. was "inappropriate."
Nor does J.A.'s failure to testify or her failure to report the incident undercut the sufficiency of the evidence to support defendant's conviction. When Fredrick interviewed J.A. after the crime, she was only three years of age. Fredrick ascertained J.A. could not distinguish between the truth and a lie, making questioning her unproductive. Far more important than whether or not J.A. testified or reported the crime were her contemporaneous statements to her mother, and her sister's testimony about what had happened in the bedroom. We find substantial evidence to support defendant's conviction of molesting J.A.
Defendant argues the trial court erred in admitting evidence of his prior sexual abuse conviction. He contends the evidence concerning the prior offense was far more inflammatory than the present offense, creating a likelihood of confusing and misleading the jury.
Prior to trial, the prosecution asked the court to admit evidence of defendant's prior misdemeanor conviction for annoying or molesting a child under Penal Code section 647.6. The prosecution sought admission of the evidence to show defendant's disposition to commit such offenses as well as for proving a common scheme or plan, intent, or absence of mistake. (Evid. Code, §§ 1108, 1101, subd. (b).)
The court ruled the prior conviction would not be admissible to show a common plan or scheme, but reserved ruling on the other bases for admission. The court expressed some concern over whether the prior was more inflammatory than the charged offenses. Defense counsel objected to the admission of the prior.
The court ultimately allowed the prior admitted to show defendant's disposition to commit such offenses. (Evid. Code, § 1108.) However, the court ordered that some of the more inflammatory aspects of the prior offense not be admitted. The prosecution could not state that defendant held the child down, that she tried to rip his hands from her face, and that defendant had locked the door beforehand. The court also did not allow evidence of the child's reaction to the assault. Based on the court's ruling, defense counsel stipulated that defendant had been convicted of annoying or molesting a child.
As noted, Steven M. testified about the prior incident. He left defendant alone with Steven M.'s niece, who was three or four years of age, and when he returned, he found defendant lying on top of the child. Defendant's pants were around his ankles, showing his naked buttocks. The child's panties were around one ankle, and defendant's legs were between her legs. The court read the stipulation that, as a result, defendant had been convicted of misdemeanor annoying or molesting a child.
We review a court's admission of prior crime evidence under the abuse of discretion standard. We will not reverse unless the trial court exercised its discretion in an arbitrary, capricious, or absurd manner resulting in a miscarriage of justice. (People v. Hovarter (2008) 44 Cal.4th 983, 1004; People v. Wesson (2006) 138 Cal.App.4th 959, 969.)
The Supreme Court has provided guidance on the admissibility of prior sexual offenses: "Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its 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 (1999) 21 Cal.4th 903, 917.)
Here, the court considered the uncharged offense and determined it was not too remote in time, the evidence would not be unduly time consuming, and the evidence would not be confusing for the jury to distinguish it from the charged offenses. The court noted some aspects of the uncharged offense could inflame the jury. However, the court also found the uncharged offense similar to the charged offense: "They're girls of the same age. Adults were around the premises but not in the room at the time. There were multiple children around at the time these acts occurred and those are significant to the Court and its analysis to whether or not the [Evidence Code section] 1108 evidence should be admitted." The court decided to admit a portion of the evidence but exclude the inflammatory aspects of the incident.
We find nothing arbitrary or absurd in the trial court's handling of the previous incident. The court, following the procedure set forth by the Supreme Court, carefully weighed the factors for and against admission. Mindful of the prejudicial impact of some facts, the court ordered the more inflammatory aspects not be admitted.*fn2
Defendant claims three separate instances of prosecutorial misconduct: the prosecution mentioned evidence the court had ruled inadmissible, urged the jury to convict based on the prior act, and suggested the defense should have fabricated "facts" to make the defense more credible. This misconduct, defendant asserts, requires reversal.
During closing argument, the prosecution twice stated that before he committed the prior assault, defendant locked the door to prevent Steven M. from interrupting him. Previously, the court ruled this fact inadmissible in the admission of evidence of the prior crime. Defense counsel objected and the court offered to instruct that argument is not evidence. Defense counsel declined the instruction because the court had previously given the instruction.
Also during closing argument, the prosecution stated: "The law has pretty much said -- and this is one of the only places in the law that allows you to do this. Once a child molester, always a child molester." However, the prosecution also informed the jury that the prior conviction could not be the sole basis for conviction.
Finally, during closing argument, the prosecution argued defendant conceded the victims lacked a motive to fabricate the charge against him. The prosecution stated: "The defendant after two years can't even come up with a reason why [L.A.] or [A.A.] or [S.P.] would be making this up, would be fabricating this against him. It's because they're not. [¶] He couldn't come up with, 'Yeah, well, [S.P.], she was mad because her and my brother got in a big fight and because he was allowing me to be over there. And the girls were mad because . . . I was the person that got their dad in trouble and he went to prison -- or excuse me -- he got arrested and placed in the back of the police car this night. That they always told on me. They always made up stuff. They didn't like me because I didn't let them play games or I didn't let them do these things."
A prosecutor's conduct violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to deny the defendant due process. Prosecutorial conduct that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa).)
As a general rule, a defendant must object to prosecutorial misconduct and request an admonishment when the misconduct occurs. (Samayoa, supra, 15 Cal.4th at p. 841.) The defendant's failure to object or request an admonition is excused if either would be futile or an admonition would not have cured the harm caused by the misconduct. (People v. Hill (1998) 17 Cal.4th 800, 820.)
Defense counsel did object to the prosecution's mention of the locked door in the previous offense. Defense counsel waited until the prosecution completed his initial summation to avoid drawing additional attention to the comments. The court offered to reinstruct the jury that statements made by attorneys are not evidence. Defense counsel declined the offer, stating it would be "overkill" because she intended to make the same point during her summation and the jury had just heard instructions on that point. The court instructed the jury pursuant to CALCRIM No. 222 and defense counsel reiterated that counsel's arguments are not evidence. We presume the jury followed the court's instructions and disregarded the prosecution's improper comment. (People v. Clair (1992) 2 Cal.4th 629, 663.)
While the prosecution's comment that "[t]he law has pretty much said" that "[o]nce a child molester, always a child molester" misstated the purpose of Evidence Code section 1108, the prosecution also stressed that even if defendant committed the earlier, uncharged offense, this alone was not sufficient to convict on the charged offenses. Taken in total, the prosecution's statements do not constitute misconduct.
Finally, during argument, the prosecution compared defendant's credibility with that of the victims, noting defendant failed to offer a motive for the children to lie. Defendant argues these comments "ridiculed the defense for failing to manufacture evidence that would more logically explain why the prosecution witnesses would have made up the allegations."
We do not read the prosecution's comments as chiding defendant for not "manufacturing" evidence. Instead, the prosecution pointed out defendant could not offer any plausible reason for the children to lie and accuse him of molesting them. The prosecution may make fair comments on both the evidence presented and the credibility of witnesses. (People v. Clark (1993) 5 Cal.4th 950, 1029-1030.)*fn3
Finally, defendant argues the trial court erred in refusing to dismiss the strike in an effort to render the resulting sentence more fitting to the offense committed. The People do not respond to this contention.
Prior to sentencing, defendant asked the trial court to exercise its discretion and dismiss the strike. At sentencing, the court declined to strike the strike and imposed a sentence of 60 years to life. The court stated it "has considered all the applicable factors. And having considered such, the court finds that the defendant is not outside the spirit of the three-strike scheme, and that the interests of justice will be served by the sentence the court intends to impose."
A sentencing court possesses the discretion to dismiss prior felony conviction strikes and impose less severe sentences in the furtherance of justice. (§ 1385, subd. (a); People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) The trial court's determination is necessarily fact specific and takes into account numerous factors, including the defendant's criminal past and public safety. In reviewing the court's exercise of its discretion, we employ an extremely deferential standard. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 981-982.)
Defendant contends "A total sentence of 30 years to life is . . . more than adequate punishment for the conduct he was convicted of. Doubling that sentence as a result of the second strike adds insult to injury and is, [defendant] believes, totally disproportionate to the crimes committed." According to defendant, a sentence of 60 years to life "is not commensurate with the offenses he committed, his prior record, and the person he is," and in the interests of justice should be vacated.
However, as defendant points out, it is an abuse of discretion for the trial court to strike a prior felony where the record discloses no mitigating factors with respect to either a defendant's present or prior offenses, and there is nothing to indicate the defendant is particularly deserving of leniency. (People v. Williams (1998) 17 Cal.4th 148, 162-164.) Defendant provides no mitigating factors in his commission of either the prior or current offenses. We find no sentencing error.
The judgment is affirmed.
We concur: BUTZ , J. HOCH , J.