Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County Super. Ct. No. 2005038003 of Ventura, Glen M. Reiser, Judge
Gilbert W. Lentz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, James William Bilderback II, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Bolden Learoy Johnson appeals a judgment following his convictions for committing a lewd act upon a child under 14 years of age (Pen. Code, § 288, subd. (a)), with a finding that he engaged in substantial sexual conduct (§ 1203.066, subd. (a)(8)), and for failing to file a sex offender change of address (§ 290, subd. (f)(1)). The jury also found that Johnson had two prior serious and violent felony convictions for rape where he used a deadly weapon. (§§ 667, subds. (c)(2), (e)(2), 1170.12, subds. (a)(2), (c)(2).) The court sentenced him to an aggregate term of 100 years to life.
All statutory references are to the Penal Code unless otherwise stated.
We conclude, among other things, that substantial evidence supports the finding that Johnson engaged in substantial sexual conduct, the court did not err by admitting evidence of prior sexual offenses and the sentence does not constitute cruel and unusual punishment. We affirm.
FACTS
Nicole C., 11 years old, and Alan C., her younger brother, stayed at a friend's house one night. Johnson had a bedroom at that residence. The children considered Johnson to be a friend. They went to sleep in his bedroom. Nicole slept on the bed, and Alan was in a sleeping bag next to it. Johnson came into the room and slept on a chair.
Nicole was asleep. She "felt the bed move." She testified that Johnson put his hand over her pajamas and touched and rubbed her "crotch area." Nicole became frightened, she left the bed and moved to the floor near her brother.
She told her father, Mark C., about the incident. He testified that she told him that Johnson touched "her vaginal and chest areas."
Alan was awake when his sister was molested. He testified that he saw Johnson's hand "going down [Nicole's] pajamas." He said Johnson "touched my sister in the wrong way." Alan subsequently told a social worker that the molestation of his sister never happened. He told this lie because he was afraid that if he told the truth the authorities would learn that he had watched a pornographic movie in Johnson's room and he would be punished.
Evidence About Johnson's Prior Sexual Offenses
Johnson lived with Janet F. and her mother. When Janet was eight or nine years old Johnson sexually molested her.
In 1983 when Janet was 15, Johnson forcibly raped her at knifepoint on two occasions. In 1983 Johnson was convicted for raping Janet F.
DISCUSSION
I. Substantial Evidence
Johnson contends that the evidence is insufficient to support the finding that he engaged in substantial sexual conduct. We disagree.
In reviewing the sufficiency of the evidence we draw all reasonable inferences in support of the judgment and we do not weigh the evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11-12.) Substantial sexual conduct "'encompasses any touching or contact, however slight, of the genitals of either the victim or the offender, with the requisite intent.'" (People v. Terry (2005) 127 Cal.App.4th 750, 772; People v. Chambless (1999) 74 Cal.App.4th 773, 783.)
"Skin-to-skin contact is not required." (People v. Whitlock (2004) 113 Cal.App.4th 456, 464 [evidence sufficient where child victim testified defendant touched her in the "crotch" on the outside of her clothing]; see also People v. Terry, supra, 127 Cal.App.4th at p. 772 [rubbing the clothing over a child's vagina is substantial sexual conduct].)
Here Nicole testified that Johnson put his hand over her pajamas and touched and rubbed her "crotch area." The evidence is sufficient. (People v. Terry, supra, 127 Cal.App.4th at p. 772; People v. Whitlock, supra, 113 Cal.App.4th at p. 464.)
II. Admitting Evidence of Prior Sexual Conduct
Johnson contends the court erred by admitting evidence of his prior sexual conduct because it was unduly prejudicial. We disagree.
A defendant's prior sexual crimes may be admitted as propensity evidence in cases involving his or her charged sex offenses. (Evid. Code, § 1108, subd. (a); People v. Abilez (2007) 41 Cal.4th 472, 501.) The Legislature determined that this evidence is often "critical" to assist the trier of fact "given the serious and secretive nature of sex crimes." (People v. Falsetta (1999) 21 Cal.4th 903, 911.) But where the prejudicial impact of the evidence substantially outweighs its probative value, it is properly excluded. (People v. Abilez, supra, at p. 502; Evid. Code, § 352.) Prosecutors should not introduce sexual propensity evidence to denigrate a defendant's character or incite the passions of jurors. But such evidence is properly admitted to support the testimony of an alleged victim whose credibility is attacked by the defense. (People v. Abilez, supra, at p. 502.)
Here the defense claimed that Nicole's story was not credible and that she had a motive to lie. She was a young witness who said she felt embarrassed by discussing the details of the offense. The prosecution properly introduced the evidence of Johnson's prior sex offenses as propensity evidence to support her credibility. The evidence showed a pattern of unlawful sexual conduct with underage girls. The probative value of this evidence was very substantial. Johnson has not shown an abuse of discretion.
Moreover, Johnson has not shown a reasonable likelihood that the result would change if this evidence had been excluded. Nicole testified where Johnson touched her and Alan saw Johnson moving his hand down her pajamas. Johnson did not testify. The defense was unsuccessful in attempting to impeach the credibility of these children, and their testimony was uncontradicted.
Johnson contends that allowing the prosecutor to admit and rely on sexual propensity evidence violates his right to due process of law. But our Supreme Court has rejected this contention. (People v. Falsetta, supra, 21 Cal.4th at p. 916.)
III. The Sentence
Johnson contends his three strikes sentence is disproportional and violates the constitutional prohibition against cruel and unusual punishment. We disagree.
In Ewing v. California (2003) 538 U.S. 11, 30, the United States Supreme Court held that sentencing recidivists under California's Three Strikes law does not violate the Eighth Amendment's prohibition against cruel and unusual punishment. The court noted that "'[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences has been exceedingly rare.'" (Id., at p. 21.) It said, "[w]hen the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice." (Id., at p. 25.)
California sentencing statutes mandate substantially extended prison terms for recidivist sex offenders. But "'the constitutionality of the practice of inflicting severer criminal penalties upon habitual offenders is no longer open to serious challenge.'" (Ewing v. California, supra, 538 U.S. at p. 25.) "Recidivism has long been recognized as a legitimate basis for increased punishment." (Ibid.)
Johnson's current crime was a serious sexual offense. He had two prior convictions for forcible rape in 1983 and he used a knife to commit those offenses. In 1999 he was convicted of failing to register as a sex offender. He served prior prison terms and did not comply with his reporting obligations as a registered sex offender. Given his violent history and recidivism, his sentence is not unconstitutional. (People v. Sullivan (2007) 151 Cal.App.4th 524, 573 ["imposition of a sentence upon defendant under the three strikes law of 210 years to life does not constitute cruel and unusual punishment"]; Ewing v. California, supra, 538 U.S. at p. 30; People v. Alvarado (2001) 87 Cal.App.4th 178, 199 [one strike life term for sexual offense did not violate federal or state constitutional proscriptions against cruel and unusual punishment].)
The judgment is affirmed.
We concur: YEGAN, J., COFFEE, J.