Opinion
C055493
9-5-2008
THE PEOPLE, Plaintiff and Respondent, v. ALLEN HART, Defendant and Appellant.
Not to be Published
A jury convicted defendant Allen Hart of four counts of aggravated sexual assault of a child (Pen. Code, § 269, subds. (a)(1), (a)(3); unspecified section references that follow are to the Penal Code) and three counts of forcible lewd acts on a child under the age of 14. (§ 288, subd. (b)(1).) The trial court found defendant guilty of possession of a firearm by a felon (§ 12021, subd. (a)(1)) and found prior strike allegations to be true. (§ 667, subd. (a).)
Sentenced to an aggregate prison term of 300 years to life, defendant appeals. He contends that (1) the trial court abused its discretion in admitting his prior convictions for impeachment purposes, and (2) section 269 violates the equal protection clauses of the federal and state Constitutions. We affirm the judgment.
FACTS AND PROCEEDINGS
Given the nature of defendants claims on appeal, a detailed recitation of the underlying facts is unnecessary. Suffice it to say, between January 1, 2005, and July 6, 2006, the 44-year-old defendant repeatedly raped and sodomized his wifes six-year-old son, seven-year-old niece, and seven-year-old granddaughter. Defendant testified at trial and denied abusing the children. The jury convicted defendant as charged.
DISCUSSION
I
Admissibility of Prior Convictions
Defendant contends that the trial court abused its discretion in permitting the prosecution to use his 1985 robbery and 1992 felony false imprisonment convictions for impeachment purposes. He argues that felony false imprisonment is not a crime of moral turpitude and that the prejudicial effect of admitting evidence of the crimes outweighed their probative value. We disagree.
A. False Imprisonment as a Crime of Moral Turpitude
Defendant first contends that felony false imprisonment is not a crime of moral turpitude. In response, the People assert that defendant has forfeited his claim by failing to raise that objection in the trial court. It is unclear whether defendant made this objection in the trial court. The parties discussed the admissibility of defendants prior convictions in chambers without a reporter present; only a later discussion was placed on the record. But, even if we assume his claim has been preserved for appeal, we find it to be without merit.
Article I, section 28, subdivision (f) of the California Constitution "authorizes the use [for impeachment purposes] of any felony conviction which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty." (People v. Castro (1985) 38 Cal.3d 301, 306 (Castro).) "`Moral turpitude means a general `readiness to do evil, i.e., `an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen, or to society in general." (People v. Cornelio (1989) 207 Cal.App.3d 1580, 1583 (Cornelio).)
"[I]n deciding whether a felony offered for impeachment necessarily involves moral turpitude, the trial court may look only to the `least adjudicated elements of the crime for which the witness was previously convicted . . . [I]f the least adjudicated elements of the crime necessarily involve moral turpitude . . . the prior conviction [is] admissible for impeachment purposes." (Cornelio, supra, 207 Cal.App.3d at p. 1584.) "As defined in section 236, `[f]alse imprisonment is the unlawful violation of the personal liberty of another. Without more, the conduct described in section 236 is a misdemeanor offense. If effectuated by `violence, menace, fraud or deceit, false imprisonment is elevated to a felony." (Ibid.)
Although defendant concedes that fraud and deceit may involve moral turpitude, he maintains that a defendant who uses violence and menace to falsely imprison his victim does not display the same moral laxity. He is incorrect. If the least adjudicated elements of felony false imprisonment are "a willingness to use violence or menace . . . moral turpitude is also present because that willingness indicates a general `readiness to do evil." (Cornelio, supra, 207 Cal.App.3d at p. 1585.) "[T]he average person would believe that anyone who uses violence or a threat of harm as a means of confinement or detention which compels a person to stay or to go somewhere against his will is guilty of some degree of moral laxity." (Ibid.) We agree with the Cornelio court that felony false imprisonment is a crime of moral turpitude.
In arguing otherwise, defendant relies on People v. Mansfield (1988) 200 Cal.App.3d 82, which held that felony battery is not a crime of moral turpitude. (Id. at p. 89.) Defendant asserts that felony false imprisonment is an analogous crime and should be characterized accordingly. Cornelio specifically rejected this analogy. "[F]elony battery (simple battery which results in serious bodily injury) does not constitute a crime involving moral turpitude. . . . [A] conviction of felony battery [does] not require proof of force likely to cause bodily injury; . . . the state of mind and amount of force used is the same for simple battery as it is for felony battery; the `least touching would suffice. Thus, the least adjudicated elements of the offense [do] not involve moral turpitude. The force used does not determine whether the offense is a felony battery; whether or not the offense is a felony battery is determined by the actual injury inflicted. . . . On the other hand, . . . the distinction between simple false imprisonment and felony false imprisonment focuses on the difference in mental state required in the commission of the two offenses." (Cornelio, supra, 207 Cal.App.3d at pp. 1585-1586.) We concur.
The trial court correctly characterized felony false imprisonment as a crime involving moral turpitude.
B. Abuse of Discretion in Admitting the Prior Convictions
Defendant contends that the trial court abused its discretion in permitting impeachment with the 1992 false imprisonment and 1985 robbery convictions because "[b]oth were of little probative value in terms of assessing credibility and cumulative, both were remote, and the false imprisonment conviction had undue similarity with the charged offenses." Again, we disagree.
Evidence Code section 352 provides "discretion to the trial judge to exclude evidence of prior felony convictions when their probative value on credibility is outweighed by the risk of undue prejudice." (People v. Beagle (1972) 6 Cal.3d 441, 453; accord, People v. Clair (1992) 2 Cal.4th 629, 654.) "A trial courts exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered." (People v. Green (1995) 34 Cal.App.4th 165, 182-183, citation omitted.)
Convictions involving moral turpitude are "prima facie admissible" as evidence relevant to witness credibility. (Castro, supra, 38 Cal.3d at p. 316.) Further, "[a] series of crimes evidencing moral turpitude is more probative of a defendants willingness to give perjured testimony than a single such offense." (People v. Lewis (1987) 191 Cal.App.3d 1288, 1297.) Defendants multiple felonies were not cumulative and spoke directly to his credibility.
While the remoteness of a prior conviction is a factor to be considered in determining the admissibility of a prior offense for impeachment purposes (see People v. Mendoza (2000) 78 Cal.App.4th 918, 925), the significance of this factor diminishes if the defendant has not led a legally blameless life in the intervening years. (People v. Carpenter (1999) 21 Cal.4th 1016, 1056.) Following his robbery conviction in 1985, defendant violated parole three times before he was convicted of felony false imprisonment in 1992 and sentenced to eight years in prison. Between 1997 and 2000, defendant violated parole three more times and was returned to custody. In 2002, defendant was convicted of grand theft. In light of defendants continuous criminal activity, the trial court appropriately concluded that he did not lead a legally blameless life between the prior and current offenses.
Finally, we reject defendants claim that false imprisonment is unduly similar to the charged sex offenses. Defendant does not cite to any authorities that support this assertion and we cannot agree that false imprisonment is similar simply on the basis that a sexual assault victim is, in defendants view, usually restrained.
The trial court acted well within its discretion in admitting defendants prior convictions for impeachment purposes.
II
Section 269 and Equal Protection
At the time defendant committed his offenses, section 269 provided in relevant part that: "[a]ny person who commits [specified sex offenses] upon a child who is under 14 years of age and 10 or more years younger than the person is guilty of aggravated sexual assault of a child." (Stats. 1994, 1st Ex. Sess. 1993-1994, ch. 48, § 1, p. 8761.) The specific offenses include forcible rape (§ 269, subd. (a)(1)) and forcible sodomy. (§ 269, subd. (a)(3).) Subdivision (b) of the statute provides for punishment of 15 years to life.
Defendant contends that section 269 violates the equal protection clauses of both the federal and state Constitutions by making the age of the perpetrator an element of the offense. (U.S. Const., 14th Amend.; Cal. Const., art. IV, § 16.) Defendant argues that the statute "draws an irrational distinction between youthful and older adult offenders based on age." He contends that an adult over the age of 24 who violates section 269 can be punished differently than a younger offender who commits the identical acts.
Although his argument on this point is unclear, defendant seems to analogize to the punishment scheme laid out in section 288a, which provides for different punishments depending on the ages of the victims and the perpetrator. (See, e.g., § 288a, subds. (b), (c).) While section 269, like section 288a, describes an age relationship, punishment under section 269 does not vary based on the age disparity between the victim and the perpetrator. All persons who violate section 269 are subject to the same punishment of 15 years to life. Defendant does not otherwise explain what specific statutes create an equal protection problem.
In any event, defendants claim is unpersuasive.
Initially, defendant asserts that the strict scrutiny standard must be applied. We disagree. Defendant relies on People v. Olivas (1976) 17 Cal.3d 236, 251 (Olivas), which held that liberty is a fundamental interest and that classifications dealing with it must satisfy the strict scrutiny test. Olivas applied that test and found that a juvenile offender tried as an adult may not be subjected to a longer confinement in the Youth Authority than if he had been sentenced to jail as an adult. (Olivas, supra, 17 Cal.3d at pp. 251, 257.)
However, subsequent decisions emphasized that Olivas is a narrow decision and does not require all criminal classifications to meet strict scrutiny. (See People v. Mitchell (1994) 30 Cal.App.4th 783, 794-796, and cases cited therein.) Our Supreme Court has recently explained that Olivas "requires only that the boundaries between the adult and juvenile criminal justice systems be rigorously maintained" and does not require the court to subject "all criminal classifications to strict scrutiny requiring the showing of a compelling state interest therefor." (People v. Wilkinson (2004) 33 Cal.4th 821, 837-838; accord, People v. Ward (2005) 36 Cal.4th 186, 218.)
The level of scrutiny is immaterial to our analysis, however, because section 269 withstands strict scrutiny. In People v. Gonzalez (1978) 81 Cal.App.3d 274 (Gonzalez), the defendant claimed that section 286 denied him equal protection. That statute sets forth a gradation of punishment for sodomy, tied to the age disparity between the victim and the perpetrator. It reserves the greatest punishment for sodomy committed against a victim who is under the age of 14 by one who is more than 10 years older. (§ 286, subd. (c).) The defendant in Gonzalez argued that this provision denied him equal protection by creating a special class of crime that could be committed only by persons more than 10 years older than victims under the age of 14. Gonzalez rejected this argument and concluded that the statute withstood the strict scrutiny test by having necessary classifications that serve a compelling state interest:
"There is a compelling state interest in the protection of children from sexual molestation by persons who are materially more mature. Undeniably, there is a greater likelihood that a young child will succumb to the sexual blandishment of one who is much older than that the child will do so when the conduct is solicited by one close to the childs own age. There thus exists a compelling state interest to classify as a special category sexual misconduct of a materially older person where the victim of the conduct is a young child. Classifications based upon the ages of the victim and the offender are necessary to carry out the state interest." (Gonzalez, supra, 81 Cal.App.3d at p. 277.)
Defendant argues that Gonzalez applies to consensual sex with underage partners, but is inapplicable to forcible sex offenses. According to defendant, the Gonzalez court recognized a compelling state interest only in deterring older individuals from seducing children.
We think that Gonzalezs strict scrutiny analysis applies equally in the context of forcible offenses. While age may not play a part in the actual forcible sexual act, it may well play a part in the ability of the perpetrator to lure or coerce a child into a place where the act will take place. We find there is a compelling state interest embodied in section 269, subdivision (a), to protect children from sexual abuse by persons who are materially more mature. The classification set forth in section 269 is necessary to carry out this compelling state interest.
Section 269 does not violate equal protection.
DISPOSITION
The judgment is affirmed.
We concur:
SIMS, Acting P.J.
BUTZ, J.