Opinion
A120746.
2-11-2010
THE PEOPLE, Plaintiff and Respondent, v. BRUCE OLIVER BRAUN, Defendant and Appellant.
Not to be Published in Official Reports
In this appeal, defendant Bruce Oliver Braun appeals two judgments, one entered upon a jury verdict finding him guilty of three counts of lewd acts with a child, Jane Doe 1 (Pen. Code, § 228, subd. (a)) (case No. SCR 490129), and one entered upon his plea of no contest to one count of committing a lewd act with a child, Jane Doe 2 (id., § 288, subd. (a)) (case No. SCR 517653). We affirm.
I. BACKGROUND
A. Charges Against Defendant
In case No. SCR 490129 (the Jane Doe 1 case), defendant was charged by information with three counts of committing a lewd and lascivious act on Jane Doe 1, a child under the age of 14 years. (Pen. Code, § 288, subd. (a).) All three counts were alleged to have occurred between May 1, 2004, and June 1, 2005. The complaint originally filed in the case on June 20, 2006, had included allegations of a number of offenses against Jane Doe 2 as well, which were alleged to have taken place variously between January 1, 1997, and June 1, 2003. The counts as to Jane Doe 2 were dismissed on December 8, 2006, based on defendants arguments that they were time-barred, and the three remaining counts alleged offenses against only Jane Doe 1.
Charges related to Jane Doe 2 were again filed against defendant by felony complaint in case No. SCR 517653 (the Jane Doe 2 case), on August 9, 2007. Defendant demurred on the ground that the charges were barred by the statute of limitations, and the trial court overruled the demurrer. An information was filed on November 8, 2007, charging defendant with three counts of committing lewd acts on a child under the age of 14. (Pen. Code, § 288, subd. (a).) Each offense was alleged to have taken place between September 1, 1997, and June 1, 1999.
B. Evidence in Jane Doe 1 Case
1. Evidence of Offenses Against Jane Doe 1
Trial on the charges relating to Jane Doe 1 took place in September 2007. The evidence showed that defendant began spending time with Jane Doe 1s mother, Melody M., in early 2004, when Jane Doe 1 was eight years old. He would visit Melody at her mothers home, where Jane Doe 1 lived most of her life, and they would drink together. He would often spend the night on a couch in the living room. Melody would occasionally visit defendant at his house, bringing Jane Doe 1 with her. On a few occasions, Melody and Jane Doe 1 spent the night at defendants house. According to Melody, Jane Doe 1 would sometimes "freak out" when told that defendant would be visiting.
Jane Doe 1 was 12 years old when she testified at trial. She testified that on five occasions defendant "touch[ed] uncomfortable places of [her] body," meaning her chest area (which she referred to as her "boobs") and between her legs, and said defendant touched her using "[e]ither his hands or his—below his waist." He touched these parts of her body underneath her clothing. He touched her between her legs with what she described as "[t]he part that he uses to go to the bathroom" or "the thing between his legs," after pulling down his pants. She described the activity by saying, "He put the part next to mine," as they lay on the bed, with their "part[s]" touching. On one occasion he got into the shower with her as she was showering.
On cross-examination, Jane Doe 1 testified that she spoke to a woman at the Redwood Childrens Center (the Center) about the five incidents, but acknowledged that she had told the woman she recalled defendant touching her only with his hands. She did not remember certain details. For instance, she could not recall how old she was or what grade she was in on the occasions that defendant touched her, could not recall whether he had said anything to her when touching her between her legs, and did not recall details of what she told the woman at the Center.
The woman was later identified as a forensic interview specialist named Linda Morrisey. In the interview, which took place in March 2006, Jane Doe 1 described several incidents in which defendant touched her inappropriately, although some of the details were different from those she testified to at trial. For instance, she told Morrisey that defendant had touched her only with his hands; in describing some of the incidents, she said he had touched her over her clothing, rather than under it; and she said that on one occasion, defendant had forced her to touch his genitals.
During cross-examination, defendants counsel questioned Jane Doe 1 about why she had "answered questions sometimes before [the prosecutor] asked them," and the following exchange took place: "Q. Did you feel like you just wanted to get it over with, say what— [¶] A. Yeah. [¶] Q. Say what she wanted to hear and then move on? [¶] A. Yeah. [¶] Q. Did it feel that way at the Redwood Childrens Center, you just wanted to get it done, say— [¶] A. Yeah. [¶] Q. Say what they wanted to hear and move on? [¶] A. Yeah. [¶] Q. You feel like that with me now? [¶] . . . [¶] A. I dont know what youre talking about. [¶] Q. Feel like you just wanted to say whatever it is I want to hear, and then just move on. Does it feel that way? [¶] A. Yeah. [¶] Q. Does it feel that way sometimes when youre uncomfortable talking about things? [¶] A. Yes. Yeah. [¶] Q. Say what you think they want to hear, and then, just let me get out of here. Does it feel like that? [¶] A. Yeah."
On redirect examination, the prosecutor asked Jane Doe 1 whether everything she had said on the stand had been the truth. She replied, "Well, since he—he told me what had happened at the Childrens [C]enter, and like I said, its been a long time, and I didnt remember. I would say a little bit and a little bit." When asked what she meant, Jane Doe 1 replied, "That means—I dont know, but its been a long time, so I may have said some things that werent true." The prosecutor asked whether she had been telling the truth when she testified about the things that defendant had done, and she replied, "I was. But like I said, its been a long time since I remember. So, theres some things that I did not remember." The prosecutor asked whether she had told the truth about the things she remembered, and she replied, "I dont know." Outside the presence of the jury, the prosecutor expressed doubt about whether she could proceed with the case after this testimony, and the court granted her request for a recess.
At a competency hearing on the next court day outside the presence of the jury, Jane Doe 1 testified that she understood it was good to tell the truth, that she understood what a lie was, that people would not believe someone who lied, and that someone who lied could get into trouble. On cross-examination outside the jurys presence, she testified that when she made the statements about her testimony not being entirely truthful, she was tired and "just wanted to get out of [there]." She went on to say that during her testimony, she "was telling . . . the truth one hundred percent, but [she] just wanted to get out of [there and] go home," and that she did not recall visiting the Center. The court found Jane Doe 1 a competent witness.
When testimony resumed the following court date, Jane Doe 1 testified that she understood the difference between truth and lies and that telling lies was bad. She understood that it was important to tell the truth in court, and said she would tell the truth in court that day. She acknowledged it was hard for her to remember things that happened a long time ago. The prosecutor asked her again about how defendant had touched her, and she first said that she did not remember if he had touched "his private part with [her] private part," then shortly afterward said that he had in fact done so. On further cross-examination, she again testified that she did not remember whether defendant had actually touched his "privates" to hers, then soon afterward said that she did recall him doing so. She also acknowledged on cross-examination that it was difficult to remember things that happened a year ago, and more difficult to recall things that happened three years ago.
2. Testimony of Jane Doe 2 Regarding Other Sexual Offenses
Jane Doe 2 testified at trial in the Jane Doe 1 case regarding other sexual offenses that defendant had committed. She was 19 years old when she testified.
Jane Doe 2 testified that defendant moved into the home she shared with her mother when she was 10 years old. Defendant and her mother would drink together, and they began giving Jane Doe 2 alcoholic beverages to drink. The three would spend time in defendants room playing video games or watching television while drinking. One night when Jane Doe 2 was 10 years old, while she was on defendants bed, defendant got on top of her, between her legs, and rubbed his genitals against hers through clothing, moving back and forth. Both defendant and Jane Doe 2 were clothed. He did the same thing on approximately five more occasions when Jane Doe 2 was 11 years old. On each occasion, defendant and Jane Doe 2 were clothed. Jane Doe 2 told her mother each time these events occurred. The last incident in defendants room took place when Jane Doe 2 was in the sixth grade. On that occasion, her mother walked into defendants room while he was on top of Jane Doe 2, asked defendant loudly what he was doing, and told Jane Doe 2 never to let it happen again.
On two occasions when Jane Doe 2 was in the seventh grade, she awoke to find defendant masturbating in her room, naked. She made a makeshift lock for her bedroom door, and afterward would hear the doorknob jiggle at night. The jiggling would stop when she called for her mother. When Jane Doe 2 was in the eighth grade, she would open her bedroom door and see defendant on the floor of his room, masturbating while looking at her room. He would shut his door when she yelled for her mother.
C. Judgments
On September 20, 2007, the jury in the Jane Doe 1 case found defendant guilty of all three counts of committing a lewd act upon Jane Doe 1. (Pen. Code, § 288, subd (a).)
In the Jane Doe 2 case, pursuant to a plea agreement, defendant pled no contest on December 31, 2007, to one charge of committing a lewd act on Jane Doe 2. (Pen. Code, § 288, subd. (a).)
The court sentenced defendant to the midterm of six years for count I in the Jane Doe 1 case as the primary term, and consecutive two-year terms for the remaining two counts in the Jane Doe 1 case and the count in the Jane Doe 2 case. Defendant appealed in both cases, and was granted a certificate of probable cause as to the Jane Doe 2 case.
II. DISCUSSION
A. Admission of Jane Doe 2s Testimony
Defendant contends the trial court abused its discretion in admitting Jane Doe 2s testimony under Evidence Code section 1108 in the Jane Doe 1 case.
All undesignated statutory references are to the Evidence Code.
As a general rule, evidence of uncharged crimes is inadmissible to prove a defendants conduct on a particular occasion. (§ 1101.) The Legislature has created an exception to this rule, however, in section 1108, which provides in pertinent part: "(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." Our Supreme Court upheld the constitutionality of section 1108 against a due process challenge in People v. Falsetta (1999) 21 Cal.4th 903, 910-922 (Falsetta), relying in part on the trial courts discretion to exclude unduly prejudicial evidence.
"Evidence of a prior sexual offense is indisputably relevant in a prosecution for another sexual offense. `In the determination of probabilities of guilt, evidence of character is relevant. [Citations.] [Citation.] Indeed, the rationale for excluding such evidence is not that it lacks probative value, but that it is too relevant. `It may almost be said that it is because of the indubitable relevancy of specific bad acts showing the character of the accused that such evidence is excluded. It is objectionable not because it has no appreciable probative value but because it has too much. (1A Wigmore on Evidence (Tillers rev. 1983) § 58.2, p. 1212.)" (People v. Fitch (1997) 55 Cal.App.4th 172, 179.) However, our Legislature has determined that in criminal sexual offense cases, the policy considerations favoring the exclusion of evidence of uncharged sexual offenses are outweighed by the policy considerations favoring its admission, and that "the need for this evidence is `critical given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial." (Id. at pp. 181-182.)
Defendant contends that under the facts of this case, the trial court abused its discretion under section 352 in admitting Jane Doe 2s testimony pursuant to section 1108. He argues that the Peoples case was weak and that in the circumstances, Jane Doe 2s testimony was likely to be the deciding factor in the case. He relies for this argument on People v. Antick (1975) 15 Cal.3d 79 (Antick), disapproved on another ground in People v. McCoy (2001) 25 Cal.4th 1111, 1123. There, the trial court had admitted evidence of a prior uncharged burglary for the purpose of identifying the defendant as an accomplice in the charged crimes. (Antick, supra, 15 Cal.3d at p. 92.) The Court of Appeal concluded the evidence should have been excluded, noting that there were no distinctive common marks shared by the charged and uncharged crimes to justify the admission of the evidence to prove identity. (Id. at p. 94.) The court went on to conclude that the defendant had improperly been impeached on cross-examination with two prior forgery convictions, stating that despite limiting instructions, the jury was likely to consider the evidence for the improper purpose of determining propensity to commit crimes, particularly where the prosecutions case was weak. (Id. at pp. 96-97.) Antick does not aid defendant. The disputed evidence of other crimes in Antick was not admissible to prove propensity. In enacting section 1108, however, the Legislature determined that in considering sex crimes, evidence of other acts to show propensity is admissible.
Section 352 provides that a court "in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." For purposes of section 352, the term prejudice "`applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." [Citations.]" (People v. Callahan (1999) 74 Cal.App.4th 356, 371 (Callahan).)
Nor are we persuaded by defendants argument that the trial court should have excluded Jane Doe 2s testimony because the prosecutions case was weak. We recognize that Jane Doe 1s credibility was at issue after she made statements that were inconsistent or suggested her testimony had not been wholly accurate. One of the purposes of section 1108, however, is to aid the trier of fact in determining questions of credibility related to sexual offenses. (Falsetta, supra, 21 Cal.4th at p. 911.) Jane Doe 2s testimony about defendants prior sexual offenses was properly admitted under section 1108 to aid the jury in deciding whether Jane Doe 1s testimony was credible.
Defendant contends, however, that even if the trial court properly admitted evidence of defendants earlier offenses against Jane Doe 2, it abused its discretion in allowing her to testify about the offenses he committed when she was in junior high school, when he masturbated in her presence. Defendant points out that in its motion to admit the prior acts, the People stated that beginning when Jane Doe 2 was in the eighth grade, defendant would expose himself to her or masturbate in front of her approximately 20 times per week. Defendant characterizes this anticipated testimony as "uniquely shocking and prejudicial," and argues it was less probative of propensity than the evidence that he fondled her and simulated sexual intercourse when she was 10 and 11 years old. In fact, however, Jane Doe 2 did not testify that defendant committed these acts 20 times a week, instead testifying that she saw him masturbating in her room twice, and that she afterward saw him masturbating in his own room, looking toward hers, on an unspecified number of occasions. While these acts were not as similar to the charged offenses as were defendants earlier acts against Jane Doe 2, they were still relevant to show his propensity to act in a sexually explicit manner toward the young daughters of his female friends. Indeed, as noted in People v. Frazier (2001) 89 Cal.App.4th 30, 40-41, "[t]he charged and uncharged crimes 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." (Accord, People v. Mullens (2004) 119 Cal.App.4th 648, 659; see also § 1108, subd. (d)(1)(A); Pen. Code §§ 314, 647.6.) In the circumstances, we see no abuse of discretion in admitting Jane Doe 2s testimony.
People v. Harris (1998) 60 Cal.App.4th 727, upon which defendant relies, does not persuade us otherwise. The defendant there, a mental health nurse, was charged with several sex offenses against women who had been admitted to a mental health care facility at which the defendant worked. (Id. at pp. 730-732.) At trial the court admitted evidence of a prior offense that had occurred 23 years earlier, in which the victim had been found unconscious, naked from the waist down, with blood on her vagina and mouth area, and defendant had been discovered hiding nearby, with blood on the inside of his thighs and on his penis. (Id. at pp. 734, 739.) The jury received only a partial and redacted account of the crime. (Id. at pp. 733-734.) The Court of Appeal concluded the evidence should not have been admitted under sections 1108 and 352, concluding the evidence was inflammatory in the extreme, and that the redacted version of the evidence would have caused confusion and speculation, was remote in time, and had no meaningful similarity to the offenses for which the defendant was being tried. (Harris, at pp. 737-741.) The same cannot be said here. In particular, the evidence of the uncharged offenses was no more inflammatory than the evidence of the charged offenses, and the offenses were similar enough to assist the jury in assessing Jane Doe 1s credibility.
Accordingly, we conclude that the evidence of defendants offenses against Jane Doe 2 was properly admitted under section 1108. Having reached this conclusion, we need not consider defendants alternate contention that the testimony was not properly admitted under section 1101 as evidence of defendants intent. (See Callahan, supra, 74 Cal.App.4th at p. 372.)
B. Instruction on Uncharged Offenses
Defendant contends the instructions the jury received regarding the uncharged offenses against Jane Doe 2 unconstitutionally allowed him to be convicted of the offenses against Jane Doe 1 by a mere preponderance of the evidence.
The People contend defendant forfeited this claim by not raising a specific and timely objection. Because the claim of error would affect defendants substantial rights, we will consider it. (See People v. Lewis (2009) 46 Cal.4th 1255, 1294, fn. 28 (Lewis).)
The trial court instructed the jury pursuant to CALCRIM No. 1191 as follows: "The People presented evidence that the defendant committed the crimes of lewd and lascivious acts on a child under the age of 14 on Jane Doe 2, that were not charged in this case. These crimes are defined for you in the instructions. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the [un]charged offense. [¶] . . . [¶] If you do decide the defendant committed the uncharged offense, you may, but are not required to, conclude from the evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit lewd and lascivious acts on a child under the age of 14, which was on Jane Doe 1, as charged here. [¶] If you conclude the defendant committed the uncharged offense, itself, that conclusion is only one factor to consider along with all the other evidence. [¶] It is not sufficient by itself to prove that the defendant is guilty of lewd and lascivious acts on a child under the age of 14 on Jane Doe 1. [¶] The People must still prove each element of every charge beyond a reasonable doubt. Do not consider this evidence for any other purpose." Defendant contends this instruction improperly invited the jury to convict him if it were convinced of his guilt by a mere preponderance of the evidence.
This position has been rejected by our Supreme Court. In People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016 (Reliford ), the court considered the 1999 version of CALJIC No. 2.50.01, which was substantially similar to CALCRIM No. 1191. The defendant there contended the instruction was likely to mislead the jury concerning the prosecutions burden of proof. (Reliford, at p. 1012.) The court rejected this contention. In doing so, it first noted that the inferences that (1) a defendant who has committed sex crimes in the past may have a disposition to commit sex crimes, and that (2) a defendant with a predisposition to commit sex crimes was likely to commit and did commit the charged offense, were legitimate. (Id. at pp. 1012-1013.) The court went on to address the defendants argument that, having found the uncharged sex crime true by a preponderance of the evidence, the jury would rely on that alone to convict him of the charged offenses. The court rejected this argument, stating, "[t]he problem with defendants argument is that the instruction nowhere tells the jury it may rest a conviction solely on evidence of prior offenses. Indeed, the instructions next sentence says quite the opposite: `if you find by a preponderance of the evidence that the defendant committed a prior sexual offense . . ., that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime." (Id. at p. 1013.) These instructions, the court concluded, "could not have been interpreted to authorize a guilty verdict based solely on proof of uncharged conduct." (Ibid.) The court also rejected the position that a jury might interpret the instruction to permit conviction of the charged offenses under the preponderance-of-the-evidence standard, stating, "We do not find it reasonably likely a jury could interpret the instructions to authorize conviction of the charged offenses based on a lowered standard of proof. Nothing in the instructions authorized the jury to use the preponderance-of-the-evidence standard for anything other than the preliminary determination whether defendant committed a prior sexual offense . . . . The instructions instead explained that, in all other respects, the People had the burden of proving defendant guilty `beyond a reasonable doubt. [Citations.] Any other reading would have rendered the reference to reasonable doubt a nullity." (Id. at pp. 1015-1016; see also Lewis, supra, 46 Cal.4th at pp. 1297-1298.)
The version of CALJIC No. 2.50.01 considered in Reliford instructed the jury: "`If you find that the defendant committed a prior sexual offense . . ., you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense . . ., that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime. The weight and significance of the evidence, if any, are for you to decide. [¶] You must not consider this evidence for any other purpose." (Reliford, supra, 29 Cal.4th at pp. 1011-1012.)
The court in Reliford went on to note that the 2002 version of CALJIC No. 2.50.01 deleted the sentence, "`The weight and significance of the evidence, if any, are for you to decide," and inserted "`If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime." The court characterized this new language as "an improvement," that "provides additional guidance on the permissible use of the other-acts evidence and reminds the jury of the standard of proof for a conviction of the charged offenses." (Reliford, supra, 29 Cal.4th at p. 1016.) Similar language is included in the instruction the jury received here.
The Court of Appeal in People v. Cromp (2007) 153 Cal.App.4th 476, 479-480, considered a similar challenge to CALCRIM No. 1191 and, following Reliford, rejected it, stating, "Although the instruction considered in Reliford was the older CALJIC No. 2.50.01, there is no material difference in the manner in which each of the instructions allows the jury to conclude from the prior conduct evidence that the defendant was disposed to commit sexual offenses and, therefore, likely committed the current offenses. CALCRIM No. 1191, as given here, cautions the jury that it is not required to draw these conclusions and, in any event, such a conclusion is insufficient, alone, to support a conviction." (See also People v. Schnabel (2007) 150 Cal.App.4th 83, 87 [in considering challenge to CALCRIM No. 1191, court bound by Reliford because version of CALJIC No. 2.50.01 considered in Reliford "similar in all material respects" to CALCRIM No. 1191].)
Defendant relies, however, on People v. James (2000) 81 Cal.App.4th 1343, 1346-1347, 1349 (James), which concluded that the 1997 version of CALJIC No. 2.50.02, which instructed the jury on considering prior occasions of domestic violence, violated due process "by increasing the likelihood the jury would misuse evidence of prior offenses, opening the door to conviction based merely on propensity." He also relies on Gibson v. Ortiz (9th Cir. 2004) 387 F.3d 812, 821-822 (Gibson), overruled in part on another ground in Byrd v. Lewis (9th Cir. 2009) 566 F.3d 855, 866, which found the 1996 version of CALJIC No. 2.50.01 constitutionally infirm. The challenged instructions in those cases told the jury that if it found the defendant had a disposition to commit the types of offenses at issue, it could infer that he "`was likely to commit and did commit the crime of which he is accused." (James, supra, 81 Cal.App.4th at p. 1350; Gibson, supra, 387 F.3d at pp. 821-822.) They did not, however, include the language found in the 1999 version of CALJIC No. 2.50.01 considered by Reliford and in CALCRIM No. 1191, which instructed the jury that a finding the defendant committed the uncharged offenses was not sufficient by itself to prove the defendant guilty of the charged offenses. (Reliford, supra, 29 Cal.4th at pp. 1012-1013.) James and Gibson do not assist defendant.
Reliford, Cromp, and Schnabel make clear that CALCRIM No. 1191 does not unconstitutionally reduce the Peoples burden of proof. Accordingly, we reject defendants challenge to the instruction.
C. Instruction on Character for Truthfulness
The trial court instructed the jury on the credibility of witnesses pursuant to CALCRIM No. 226. Over defendants objection, it included this bracketed portion of the instruction: "If the evidence establishes that a witnesss character for truthfulness has not been discussed among the people who know him or her, you may conclude from the lack of discussion that the witnesss character for truthfulness is good."
Defendant contends it was error to give this instruction. According to defendant, it could have applied only to Jane Doe 1, whose testimony "presented substantial credibility problems." Defendant notes that Jane Doe 1s mother and grandmother testified at trial, as did the investigating officer who spoke with her; he continues: "None of these witnesses were asked about Jane Doe [1]s character for truthfulness, yet the jury could, with that instruction, now assume that her character was good."
Defendants argument is circular. That is, he argues the instruction was irrelevant to the evidence because no one testified as to whether Jane Doe 1s character for truthfulness had been discussed, but contends the error in giving the instruction was prejudicial because the jury would have assumed it was relevant and used it—erroneously—to conclude her character for truthfulness was good.
A jury is presumed to understand and follow the courts instructions. (People v. Pinholster (1992) 1 Cal.4th 865, 919; People v. Holt (1997) 15 Cal.4th 619, 662.) Here, the jury was instructed that some of the instructions might not apply, depending on its findings about the facts of the case, and was told to follow the instructions that applied to the facts. The challenged instruction applied only if the evidence established that a witnesss character for truthfulness had not been discussed among those who knew him or her. In the absence of any evidence establishing that Jane Doe 1s character for truthfulness had not been the subject of discussion, we presume the jury disregarded the instruction. Under the circumstances, even assuming it was error to give the instruction, we see no possibility that defendant was prejudiced by the instruction. (See People v. Rowland (1992) 4 Cal.4th 238, 282.)
Defendant contends we should apply the standard for prejudice for federal constitutional error announced in Chapman v. California (1967) 386 U.S. 18, because the instruction reduced the Peoples burden of proving guilt beyond a reasonable doubt. We fail to see how the instruction could have had that result. In any case, we would find any error in giving the instruction harmless beyond a reasonable doubt.
D. Response to Jurys Inquiry
During deliberations, the jury submitted the following written question to the court: "Judge— [¶] Does a reasonable dou[bt] have to stem from the evidence, or can it be a doubt about the process of obtaining the evidence?" The trial court, the prosecutor, and defense counsel discussed at length how best to respond to the inquiry. They discussed the options of answering "yes," crafting an answer that told the jury it should determine what weight and significance to give to the process involved, or simply referring the jury back to the instructions it had received. Defense counsel said he thought that "yes" was the appropriate answer to the inquiry, but that the court should "either answer it yes or . . . dont answer it." The court said it would refer the jury to the instructions it already had. Defense counsel responded, "That would be fine, Your Honor." The trial court instructed the jury: "Please refer this question back to the instructions you already have in your possession."
Defendant now contends this response was inadequate, and that the court should have done more. Among the possible responses, defendant suggests, the court could have told the jury that it could take into account its concerns about how evidence was obtained; it could have re-read the instruction on the credibility of witnesses and added the language "`Was the testimony of the witness influenced by people who had talked to her in the past about the subject matter of her testimony?"; and it could have instructed the jury that it could take into account the lack of opportunity for cross-examination at the time of Jane Doe 1s interview at the Center.
In considering a jurys request for further guidance, "[t]he court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under [Penal Code] section 1138 to determine what additional explanations are sufficient to satisfy the jurys request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.] . . . But a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given." (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
Here, defendant consented to the trial courts response, and indeed, suggested as one of his preferred responses that the trial court give no additional instruction. In doing so, he waived his claim of error. (People v. Bohana (2000) 84 Cal.App.4th 360, 373; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1193.) In any case, this contention has no merit. The trial court considered and discussed with counsel whether further instructions should be given. We see no abuse of discretion in its decision to refer to the full and complete instructions already given.
E. Delay in Bringing Jane Doe 2 to Trial and Effects on Jane Doe 1 Case
Defendant contends the trial court should have dismissed the Jane Doe 2 case for delay in bringing it to trial, and that the continuing pendency of that case prejudiced his ability to defend himself in the Jane Doe 1 case. The procedural histories of these two claims, one made on appeal of the judgment in the Jane Doe 1 case and one on appeal in the Jane Doe 2 case, are interrelated.
Defendant was originally charged in the Jane Doe 1 case with offenses against both Jane Doe 1 and Jane Doe 2. One of the offenses against Jane Doe 2 was alleged to have taken place between January 1, 1997, and June 1, 2003, and the others between January 1, 1997, and June 1, 1998. The complaint was filed on June 20, 2006. After the prosecutor informed the court of her position that the charges related to Jane Doe 2 were barred by the statute of limitations, the trial court discharged defendant as to those counts.
Upon further review, the People decided to refile charges against defendant in connection with offenses against Jane Doe 2, and filed a complaint in the Jane Doe 2 case on August 9, 2007. The offenses were alleged to have taken place between September 1, 1997, and June 1, 1999.
Trial in the Jane Doe 1 case began approximately a month later, on September 4, 2007. On the first day of trial, defendant moved in limine to exclude Jane Doe 2s testimony, based in part on the ground that due to the "procedural morass" created by "late refiling" of the charges in the Jane Doe 2 case, he was faced with the choice of revealing his planned defense to Jane Doe 2s charges or failing to respond fully to the testimony she gave in the Jane Doe 1 case.
Defendant filed a motion to dismiss the Jane Doe 2 case for denial of his right to a speedy trial on October 22, 2007. In the motion, he contended that Jane Doe 2s allegations had been known since late 2002 or early 2003, that she had given a statement to police and been interviewed at the Center in November 2004, that no charges had been filed at either time, that the charges originally filed against defendant had been dropped in December 2006, and that in the time since the allegations were first known, physical evidence and witnesses had become unavailable.
On November 1, 2007, defendant waived his right to a preliminary hearing in the Jane Doe 2 case, and at the same time withdrew the speedy trial motion without prejudice "until a better time."
On December 14, 2007, defendant again moved to dismiss the Jane Doe 2 case on the ground that he had been denied his rights to due process and a speedy trial. In this motion, he argued that the preaccusation delay—that is, the delay between the time the crimes were allegedly committed and the time he was formally charged in the Jane Doe 2 case on the eve of the trial in the Jane Doe 1 case—deprived him of due process. He contended that his ability to present a defense in the Jane Doe 1 case was hindered by the pending charges in the Jane Doe 2 case, because in responding to Jane Doe 2s testimony in the Jane Doe 1 case, he risked revealing his intended defense strategy in the Jane Doe 2 case. As a result, he argued, he was now faced with the possibility of being impeached with the convictions in the Jane Doe 1 case if he elected to testify in the Jane Doe 2 case. Defendant did not renew his argument that evidence had become unavailable to him as a result of the delay. The trial court denied the motion, finding defendant had not shown prejudice from the delay.
Defendant indicated the delay at issue in this motion was that between December 2006 when the charges relating to Jane Doe 2 in the Jane Doe 1 case were dismissed, and August 2007 when the charges in the Jane Doe 2 case were filed.
1. Issues Raised in Appeal of Judgment in Jane Doe 1 Case
Defendant contends he was prejudiced by the delay in renewing charges related to Jane Doe 2 until shortly before the trial of the charges related to Jane Doe 1. He argues as follows: the delay in filing charges in the Jane Doe 2 case was deliberate and unjustified and caused him prejudice; accordingly, he was deprived of his right to a speedy trial in the Jane Doe 2 case; as a result, the Jane Doe 2 case should have been dismissed; because the Jane Doe 2 case remained pending rather than being dismissed, he was forced to choose between presenting a vigorous defense in the Jane Doe 1 case (including presenting his own testimony) and running the risk of revealing his defense strategy in the Jane Doe 2 case to the prosecution; and he suffered prejudice because Jane Doe 2s testimony was critical to his conviction in the Jane Doe 1 case.
We are unpersuaded by this line of argument. We first note that defendant did not seek to have the charges in the Jane Doe 2 case dismissed until after the trial in the Jane Doe 1 case. Accordingly, at least for purposes of the Jane Doe 1 case, he has forfeited the argument that the Jane Doe 2 case should have been dismissed if Jane Doe 2 were to testify in the Jane Doe 1 case. (See People v. Jenkins (2000) 22 Cal.4th 900, 1000 [appellate court ordinarily will not consider procedural defects or erroneous ruling where objection could have been, but was not, presented to lower court by appropriate method].)
In any case, while defendant argues his constitutional rights were violated when he was faced with the decision of whether to present a vigorous defense to Jane Doe 2s allegations—thus risking revealing his defense strategy and having his testimony used against him at the trial in the Jane Doe 2 case—or letting her testimony go effectively unanswered, he cites no authority indicating that evidence of other offenses is inadmissible under sections 1101 or 1108 if those offenses are the subject of a pending action.
A similar contention was made and rejected in People v. Carter (1993) 19 Cal.App.4th 1236 (Carter). At the trial for one killing allegedly committed by the defendant, evidence of a second killing was introduced to show his intent. (Id. at pp. 1244-1247.) The defendant contended he should have been granted immunity for his testimony with respect to the second killing, because otherwise he could not testify without risking self-incrimination in connection with a subsequent prosecution for the second killing. (Id. at pp. 1247-1248, 1249.)
For this contention, the defendant in Carter relied on People v. Coleman (1975) 13 Cal.3d 867 (Coleman). (Carter, supra, 19 Cal.App.4th at p. 1248.) In Coleman, our Supreme Court declared a judicial rule of evidence that upon timely objection, "the testimony of a probationer at a probation revocation hearing held prior to the disposition of criminal charges arising out of the alleged violation of the conditions of his probation, and any evidence derived from such testimony, is inadmissible against the probationer during subsequent proceedings on the related criminal charges . . . ." unless it appeared that the probationer had committed perjury. (Coleman, supra, 13 Cal.3d at p. 889.) This rule was necessary to ensure that the states discretion in scheduling the probation revocation hearing would not be used to gain an unfair advantage at trial, through its opportunity to "coerce self-incriminatory testimony by scheduling the probation revocation hearing in advance of trial." (Id. at pp. 888-889.) As the court stated, "Because of the inapplicability of certain evidentiary rules and the lower standard of proof obtaining at a probation revocation hearing, the People are generally more likely to achieve a probationers incarceration through the probation revocation process than through the new prosecution and conviction. When a probationer is deterred from testifying at his revocation hearing by fears of self-incrimination at his subsequent trial, the Peoples chances of securing his incarceration through the revocation proceeding are further enhanced. And if a probationer does successfully fight revocation by testifying at the hearing, the Peoples chances of securing his conviction of a new offense will have been improved by the probationers having been forced, in effect, to be one of the prosecutions principal witnesses in its case in chief at his trial." (Id. at pp. 876-877, fns. omitted.) The risks were particularly acute because in a probation revocation hearing, a probationers best approach might be to explain the mitigating circumstances surrounding the charged probation violation. (Id. at p. 878.)
Carter declined to extend the rule of Coleman to evidence of uncharged—and as yet untried—other offenses. In doing so, it reasoned that the evidence of other crimes did not implicate the policy against self-incrimination identified in Coleman and did not present the same opportunity for abuse; as the court noted, it was unlikely that the prosecutions decision to proffer evidence of the second killing was made in the expectation that the defendant would be compelled to take the stand to explain it. (Carter, supra, 19 Cal.App.4th at p. 1249.) In addition, "as Coleman points out, the need for judicially fashioned immunity is reduced where the concurrent proceeding offers a `high degree of procedural protection against arbitrariness, and the defendants choice is `generally one of strategy rather than desperation. [Citation.] Unlike a probation revocation proceeding, fitness hearing, or child dependency proceeding, a criminal trial is replete with procedural protections, principally the requirement that the state prove its case to a jury and establish guilt beyond a reasonable doubt. That protection removes the incentive to testify that was present in . . . cases . . . in which the defendants faced serious potential consequences if they chose not to explain their actions to the trial judge." (Id. at p. 1250.) Moreover, the court in Carter explained, in cases such as probation revocation proceedings, the probationers best course might be to admit misconduct to the court but emphasize mitigating factors; in a subsequent criminal trial, the best course might be to deny responsibility and trust to the higher standard of proof and to the presence of the jury. "A defendant contemplating whether to rebut other crimes evidence is in a different position. In most circumstances, the choice is one of timing rather than strategy, because the defense to other crimes evidence is unlikely to vary from one proceeding to the next. If the defendant intends to take the stand to deny any connection with the other [crime], that intention would not be different in a trial in which the other crime was charged. Similarly, if the defendant intends to admit all or part of the uncharged conduct, and submit mitigating or excusing evidence, there is no difference in the posture of the two proceedings which would impel a change in that strategy from one to the next. Thus, the decision to testify in the first trial rather than the second, or in the second but not the first, is a choice having more to do with a calculation of the likely effect of the testimony than with a dilemma posed by differing defense objectives at the two proceedings . . . ." (Ibid.) Accordingly, the court concluded the dilemma the defendant faced in deciding whether to testify in rebuttal to evidence of crimes that had not yet been tried, "though real, [was] not of such an order as to require immunity." (Id. at pp. 1250-1251.)
We recognize that the question before us now is not whether defendant should have been granted immunity if he chose to testify in response to Jane Doe 2s testimony at the trial in the Jane Doe 1 case, but whether Jane Doe 2s testimony should have been admitted at all. But the policies considered in Coleman and Carter are similar to those defendant raises here. There is no basis to conclude the timing of trial in the two cases was the result of an attempt to disadvantage defendant. (See Coleman, supra, 13 Cal.3d at pp. 888-889.) At both the trial in the Jane Doe 1 case and the anticipated trial in the Jane Doe 2 case, defendant would have the protection of a jury, and the People would be required to prove his guilt beyond a reasonable doubt. The procedural posture of the two proceedings was the same, and defendant would not face the dilemma posed by differing objectives in the two proceedings. (See Carter, supra, 19 Cal.App.4th at p. 1250.) He was not required to disclose evidence to the People in order to defend himself in the Jane Doe 1 case. (See Teal v. Superior Court (2004) 117 Cal.App.4th 488, 492 [inappropriate to require defendant to reveal subpoenaed materials to prosecution].)
As noted in People v. Kiney (2007) 151 Cal.App.4th 807, 814, "[t]he Constitution does not forbid ever requiring a defendant to choose between competing rights; the criminal process often requires `"the making of difficult judgments." [Citation.] `The threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved." We see no such impairment here. In the circumstances, we reject defendants contention that the pendency of the charges in the Jane Doe 2 case rendered her testimony in the Jane Doe 1 case inadmissible.
2. Issues Raised in Appeal of Judgment in Jane Doe 2 Case
In a related argument, this time challenging his conviction in the Jane Doe 2 case, defendant contends the Jane Doe 2 case should have been dismissed for violation of his constitutional right to due process and a speedy trial. (See Jones v. Superior Court (1970) 3 Cal.3d 734, 739-741 (Jones) [applying speedy trial right to prearrest delays]; People v. Catlin (2001) 26 Cal.4th 81, 107 [defendant seeking to dismiss on due process grounds for prearrest delay in prosecution must demonstrate prejudice; prosecution may offer justification for delay.]) To support this argument, he contends that because of the delay between the charged offenses and the filing of the Jane Doe 2 case, potentially exculpatory evidence became unavailable to him, and points out that he was in a worse position than if the Jane Doe 2 case had gone to trial earlier, because he could now be impeached with his conviction in the Jane Doe 1 case.
The right to a speedy trial does not attach until the defendant has been arrested or a charging document has been filed. However, delays in prosecution before that time may violate due process if the delay is unjustified and prejudicial. (People v. Nelson (2008) 43 Cal.4th 1242, 1250.) Claims that the delay denied a defendant due process are decided by the same approach as claims of speedy trial violations. (Jones, supra, 3 Cal.3d at p. 741, fn. 1; Scherling v. Superior Court (1978) 22 Cal.3d 493, 505 & fn. 9.)
As the Attorney General points out, defendant made the contentions related to unavailable evidence only in his earlier, withdrawn motion to dismiss. The speedy trial motion that the trial court denied was based on defendants argument that the "procedural morass" created by the "late refiling of the counts involving Jane Doe #2" had hindered his ability to prepare his defense in the Jane Doe 2 case and had put him at risk of revealing his defense strategy prematurely.
The Attorney General contends, and we agree, that this claim is not cognizable on appeal because defendant pled no contest in the Jane Doe 2 case. "[T]he cases are virtually uniform in holding that a claim of speedy trial violation—whether statutory or constitutional—does not survive a guilty plea." (People v. Hernandez (1992) 6 Cal.App.4th 1355, 1357.) Since Hernandez was decided, other cases have continued to apply this rule. (See, e.g., People v. Aguilar (1998) 61 Cal.App.4th 615, 617, 619 [municipal court denial of speedy trial motion not appealable after defendant has pled no contest]; People v. Egbert (1997) 59 Cal.App.4th 503, 508, 515 [guilty plea waives appeal of speedy trial claim, either constitutional or statutory, in both misdemeanor and felony prosecutions].) The same rule applies to due process claims based on delay in prosecution. (See People v. Hayton (1979) 95 Cal.App.3d 413, 419.)
The reason for this rule is that "`[t]he essence of a defendants speedy trial or due process claim in the usual case is that the passage of time has frustrated his ability to establish his innocence. The resolution of a speedy trial or due process issue necessitates a careful assessment of the particular facts of a case in order that the question of prejudice may be determined. [¶] Where the defendant pleads guilty, there are no facts to be assessed. And since a plea of guilty admits every element of the offense charged, there is no innocence to be established. [Citation.]" (Ricki J. v. Superior Court (2005) 128 Cal.App.4th 783, 792.) A plea of no contest similarly demonstrates that the defendant is prepared to admit each element of the offense charged. (See People v. West (1970) 3 Cal.3d 595, 612.)
Defendant contends Hernandez and the other cases we have cited were wrongly decided. The cases he relies on for this contention do not assist him. People v. Moore (2003) 105 Cal.App.4th 94, 97-98, 100, concluded a claim that the trial court had improperly denied discovery of materials relevant to whether defendant had been the subject of intentional and purposeful invidious discrimination, in violation of his right to equal protection, was cognizable on appeal after a guilty plea, because it would mandate dismissal regardless of his guilt. Here, on the other hand, defendant would be required to show prejudice. Defendant also points out that cases considering the Interstate Agreement on Detainers (IAD) (Pen. Code, § 1389 et seq.) have concluded that a defendant who pleads guilty may claim on appeal that the trial court should have granted his motion to dismiss for failure to bring him to trial within the period required by the IAD, which was designed to provide for uninterrupted rehabilitative incarceration. (See, e.g., People v. Zetsche (1987) 188 Cal.App.3d 917, 920 & fn. 2, 922; People v. Cella (1981) 114 Cal.App.3d 905, 915, fn. 5.) This rule has been recognized as a limited exception to the general rule that a defendant who pleads guilty or no contest may not appeal on the ground of denial of speedy trial. (People v. Gutierrez (1994) 30 Cal.App.4th 105, 108.) These authorities do not persuade us to depart from the general rule that speedy trial or delayed prosecution claims are not cognizable on appeal after a plea of guilty or no contest.
III. DISPOSITION
The judgments are affirmed.
We concur:
RUVOLO, P.J.
SEPULVEDA, J.