People v. Callahan

Opinion

A jury found appellant Louis Edward Callahan guilty of committing a lewd or lascivious act upon a child under the age of 14 years. (Pen. Code, § 288, subd. (a).) The child was appellant’s nine-year-old daughter. The jury also found that appellant previously had been convicted of two serious or violent felonies within the meaning of California’s “Three Strikes” law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) The two prior convictions were another Penal Code section 288, subdivision (a) violation and an assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). The court sentenced appellant to a term of 35 years to life. This consisted of twenty-five years to life for the current Penal Code section 288, subdivision (a) conviction, plus a five-year enhancement under Penal Code section 667, subdivision (a), for each of his two prior felony convictions. On this appeal he contends (1) various evidentiary rulings made by the trial court deprived him of a fair trial, (2) the trial court erred in excusing one juror for cause and in refusing to excuse another juror, and (3) his sentence of 35 years to life “violates the law in several ways.” As we shall explain, we find no error warranting reversal and will affirm the judgment.

In a criminal action in which the defendant is accused of a sexual offense, Evidence Code section 1108 permits the prosecution to present “evidence of the defendant’s commission of another sexual offense or offenses ... if the

Appellant testified in his own defense. He denied any improper touching of Brandi. He said that about 7:45 a.m. he went into the living room where Brandi and her brother Louis were sleeping on the couch. He said that he called Kelsie into the living room to look at Brandi and Louis “to show her how they are, to show that they [are] unseparable.” He said: “I kinda moved Louis a little bit so that he wouldn’t get a crook in his neck. And I pulled, I pulled Brandi’s T shirt back down over her butt. Then I pulled the sheet off the floor and tucked it in on the side of her leg.” Appellant denied having made the statements attributed to him by Agent Zamora and Detective Hall. When appellant was asked whether he had touched Philisha M. in an inappropriate manner in 1990, his answer was: “No, I didn’t. Not that I can recall.” When he was then asked if there was some reason he might have problems recalling, he answered “[bjecause the night in question I was drunk when I came home.” Appellant also testified on direct examination that he had a prior conviction for assault with a deadly weapon.

Kelsie’s testimony was similar to appellant’s. She testified that appellant called her into the living room at a little bit before 8:00 a.m. to look at Brandi and Louis on the couch. Referring to Louis and Brandi, Kelsie testified that appellant “set him up and he covered her up.” Kelsie also testified that she did not see appellant do anything remarkable, and that

Appellant’s unsuccessful defense argument was that Brandi was lying to please her mother, Evelyn. According to the defense, Evelyn wanted revenge on appellant for leaving her for Kelsie, and wanted to prevent appellant from seeing his children. One problem with this defense was that appellant himself testified that he was on parole and that a condition of that parole was “for me not to be around anyone under the age of 18, to have physical contact.” Evelyn thus did not need to concoct a new charge to prevent appellant from seeing Brandi and Louis. Another problem with this defense was the testimony of Agent Zamora and Detective Hall about appellant’s own confessions to them. The defense was that Zamora and Hall were simply lying about appellant’s confessions to them, but the defense had no explanation of why Agent Zamora and Detective Hall would both be fabricating the confessions.

Evidentiary Issues

“No judgment shall be set aside, or new trial granted, in any cause, on the ground of . . . the improper admission or rejection of evidence . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13; accord, §§ 353 & 354.) “[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818 , 836 [ 299 P.2d 243 ]; accord, People v. Breverman (1998) 19 Cal.4th 142 , 149 [ 77 Cal.Rptr.2d 870 , 960 P.2d 1094 ].) Appellant contends that the trial court made four erroneous evidentiary rulings. He contends that the court erred in (1) “permitting the introduction of a prior conviction for child molestation,” (2) refusing to admit “evidence of appellant not having the character of a child molester,” (3) refusing to admit evidence of a medical examination of Louis, and (4) denying appellant’s motion to strike Brandi’s entire testimony. As we shall explain, we find each of these contentions to be without merit.

(A) Evidence of the Philisha M. Incident

During pretrial motions in limine, appellant moved to exclude evidence of a 1987 misdemeanor conviction for unlawful sex with a minor (Pen. Code,

“According to the Legislative Counsel’s Digest, the enactment of section 1108 created an exception to the existing prohibition in section 1101 against the introduction of evidence of a person’s character or trait of character to prove conduct on a specific occasion. (See Stats. 1995, ch. 439, § 2.) With the enactment of section 1108, the Legislature ‘declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the witness.’ (Review of 1995 Cal. Legislation, supra, 27 Pacific L.J. 761, 762.)

“The Historical and Statutory Notes contained in the annotations for section 1108 discuss the legislative history of the enactment. (See Historical Note, 29B pt. 3, West’s Ann. Evid. Code, supra, foil. § 1108, p. 31.) During the legislative hearings, the language of the proposed section 1108 was amended ‘ “to provide explicitly that evidence of other offenses within the scope of the section is not subject to [section] 1101’s prohibition of evidence of character or disposition. This makes it clear that [section] 1108 permits courts to admit such evidence on a common sense basis—without a precondition of finding a ‘non-character’ purpose for which it is relevant—and permits rational assessment by juries of evidence so admitted. This includes consideration of the other sexual offenses as evidence of the defendant’s

With regard to the section 1108, subdivision (a) phrase “if the evidence is not inadmissible pursuant to Section 352,” we stated in Soto: “While section 1108 ‘explicitly supersedes’ section 1101’s prohibition of evidence of character or disposition, it does not supersede other provisions of the Evidence Code, such as normal hearsay restrictions and the court’s authority to exclude evidence presenting an overriding likelihood of prejudice under section 352. (Historical Note, 29B pt. 3, West’s Ann. Evid. Code, supra, foil. § 1108, p. 31.) The legislative history expressly refers to the balancing analysis of Ewoldt and [People v.] Balcom [(1994) 7 Cal.4th 414 [ 27 Cal.Rptr.2d 666 , 867 P.2d 777 ]] as analogous situations. (Ibid.) However, section 1108 affects the practical operation of section 352 balancing ‘ “because admission and consideration of evidence of other sexual offenses to show character or disposition would be no longer treated as intrinsically prejudicial or impermissible. Hence, evidence offered under [section] 1108 could not be excluded on the basis of [section] 352 unless ‘the probability that its admission will . . . create substantial danger of undue prejudice’ . . . substantially outweighed its probative value concerning the defendant’s disposition to commit the sexual offense or offenses with which he is charged and other matters relevant to the determination of the charge. As with other forms of relevant evidence that are not subject to any exclusionary principle, the presumption will be in favor of admission." ’ (Historical Note, 29B pt. 3, West’s Ann. Evid. Code, supra, foll. § 1108, p. 31.) Section 1108 does not require “‘more exacting requirements of similarity between the charged offense and the defendant’s other offenses ....”’ (Ibid.) Such a requirement was not added to the statute because ‘doing so would tend to reintroduce the excessive requirements of specific similarity under prior law which [section 1108] is designed to overcome, . . . and could often prevent the admission and consideration of evidence of other sexual offenses in circumstances where it is rationally probative. Many sex offenders are not ‘specialists’, and commit a variety of offenses which differ in specific character.” ’ (Id. at pp. 31-32.)” (People v. Soto, supra, 64 Cal.App.4th at p. 984.)

Three published cases have reviewed a trial court’s exercise of its section 352 discretion on evidence offered under section 1108. In Soto, the defendant was tried on two counts of committing a lewd and lascivious act with a child under the age of fourteen years. He was convicted on one of those counts. The victim was his 12-year-old niece. The court admitted testimony of another niece and of the defendant’s sister, both of whom testified that the

In People v. Yovanov (1999) 69 Cal.App.4th 392 [ 81 Cal.Rptr.2d 586 ], the defendant was charged with and convicted of 36 counts of committing a lewd act on a child. The victim was his girlfriend’s daughter, a young girl named Kristy. At trial, the court also received evidence that the defendant had committed similar acts with Kristy’s identical twin sister, Kathy. The appellate court found no abuse of discretion by the trial court in admitting the evidence of the defendant’s sexual misconduct with Kathy. “[T]he uncharged acts had great probative value, given their close resemblance and temporal proximity to the charged crimes.” (People v. Yovanov, supra, 69 Cal.App.4th at p. 406.)

Soto and Yovanov stand in stark contrast to People v. Harris (1998) 60 Cal.App.4th 727 [ 70 Cal.Rptr.2d 689 ]. In Harris the defendant was a male mental health nurse, approximately 50 years of age. He was convicted of six counts of sex crimes involving forcible sexual touching of two different women, Tracy and Brenda. Brenda was 29 years old and was married with 2 children. Tracy was 34. The defendant had met both women when they were patients at a mental health treatment center where he worked. Prior to the commission of the crimes, Brenda had suffered from suicidal depression and Tracy had “a long history of mental problems, including delusions and hallucinations” and was “always on medications, such as Paxil, Haldol, Depakote and Risperidone.” (60 Cal.App.4th at p. 731.) The defendant and Brenda had also had consensual oral copulation and sexual"intercourse on the defendant’s boat several days prior to the alleged offenses against Brenda. The offenses against Brenda took place in Brenda’s home, where the defendant mouthed Brenda’s breast (Pen. Code, § 243.4, subd. (a)), and fingered and mouthed her vagina (Pen. Code, §§ 289, subd. (a), 288a, subd. (c)). A few weeks later Brenda and Tracy were both attending a group therapy session on “shame.” Tracy told the group about a mental health nurse who had licked her breast (Pen. Code, § 243.4, subd. (b)) and touched

It is readily apparent that the present case is much more akin to Soto and Yovanov than it is to Harris. The section 352 factors here weigh heavily in

Having concluded that the . court did not err in admitting the evidence under section 1108, we need not and do not address the issue of whether that evidence was also admissible under section 1101, subdivision (b) as evidence pertaining to appellant’s “intent.” (See also People v. Soto, supra, 64 Cal.App.4th at p. 992.)

(B) Appellant’s Character Evidence

Appellant contends that the trial court denied him a fair trial “by excluding evidence of appellant not having the character of a child molester.” We find this argument to be without merit. Appellant called four character witnesses. These were his 11-year-old niece (Tammara B.), his 18-year-old niece (Ada N.), and his sisters (Rosemary M. and Jerrelyn M.). Eleven-year-old Tammara testified that appellant had babysat her at his house more than 20 times, and that appellant treated her “nice” and “gentle.” Appellant had babysat her from the time she was a small child. This occurred before 1996. She was never alone with him in 1996. Eighteen-year-old Ada testified that she had seen appellant around children “a lot” and that

“Q Based upon your observations of seeing Mr. Callahan with children on your, based upon your own contact with him as a child, do you have an opinion about his character as it pertains to his treatment, to the treatment of children?

“A He takes very good care of ’em.

“Q So what is that opinion?

“A I really don’t know how to answer it. When we’re around him, he take very good care of us.” On cross-examination Ada testified that she knew appellant had impregnated Evelyn when Evelyn was 14 years old. The child Evelyn then bore was Brandi. Ada also testified that she was aware that Philisha had alleged that appellant had molested Philisha, but this did not change Ada’s opinion about appellant. She also testified that she had seen more of appellant before 1990 than after 1990, and that after 1990 there were periods of years when she did not see appellant at all. She said that “from me being five till about, you know, ’90 when he first went to jail, I seen him frequently.”

Appellant’s older sister Rosemary testified that she had 4 children, and that at the time of trial these children were ages 19, 17, 13 and 11. Rosemary testified that during the time when her children were growing up, appellant babysat them. She testified about appellant that she “never had a problem with him and my children at all” and that appellant was “fine” with them. On cross-examination she said that she was aware of Philisha’s accusation that appellant had molested her, and was aware that Evelyn was 14 years old when Evelyn became pregnant by appellant.

Jerrelyn M. testified that she had two sons, ages sixteen and seven, and that she had known appellant all her life. She said that she had observed appellant around children “so many times I couldn’t number,” and that she had allowed appellant to babysit her own children. As a result of these observations, she had formed the opinion that appellant was a “very wonderful person around children.” On cross-examination she said that she too had heard about Philisha M.’s accusation that appellant had molested Philisha. She was also aware that Evelyn had given birth to appellant’s child when Evelyn was 14 or 15 years old. Her knowledge of these events did not change her opinion that appellant was good around children.

When Ada N. testified, appellant’s counsel asked Ada “During the time that Mr. Callahan watched you, was there—did he ever touch you in [an] inappropriate manner?” The prosecutor’s objection of “improper evidence” was sustained. Out of the presence of the jury, appellant’s counsel then argued that appellant should be allowed to rebut the prosecutor’s evidence of the Philisha M. incident with evidence that appellant behaved well around other children and did not molest them. The court ruled, however, that “[s]pecific incidents of conduct, I’m not allowing evidence about specific incidents of conduct.”

Appellant argues that the court erred in not allowing Ada to testify that appellant never touched her in an inappropriate manner. We agree with

Subdivision (a) of section 1101 states: “Except as provided in this section and in Sections 1102, 1103, 1108 and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” Thus the Evidence Code itself tells us that evidence offered pursuant to section 1108 is character evidence. The term “character” or “character evidence” is not defined in the Evidence Code, but the term “character” has been described as “the tendency to act in a certain manner under given circumstances.” (People v. Shoemaker (1982) 135 Cal.App.3d 442 , 446, fn. 2 [ 185 Cal.Rptr. 370 ].) When the prosecution introduces evidence under section 1108 of a defendant’s commission of a prior sexual offense, how may the defendant rebut that evidence? One way is for the defendant to present any evidence he may have that he did not commit the prior offense. Another way is to present “evidence of the defendant’s character or a trait of his character in the form of an opinion or evidence of his reputation.” (§ 1102.) Indeed, under section 1102 a defendant has a right to present opinion and reputation evidence even if the prosecution has not first presented any section 1108 evidence. But may a defendant who is faced with the prosecution’s presentation of evidence of the defendant’s commission of a prior sexual offense rebut that evidence with his own showing of what might be called, for lack of a better term, evidence of his good behavior under similar circumstances? Neither side calls our attention to any authority addressing this particular issue. As we shall explain, however, we think the Evidence Code contemplates the admissibility of such evidence.

We begin our analysis of the People’s argument by noting its inherent inconsistency. The People argue under 1108 that, “the statute does not intend to demonstrate that appellant molests every child, but rather, that he has a propensity to molest some children.” In effect the People accept the proposition of the statute that a prior molestation is relevant to whether the accused molested the alleged victim because his/her past molestations increase the likelihood he/she acted in the same manner on the occasion in question. In other words, by committing a prior act of molestation, one demonstrates one may have a propensity to act that way thus increasing the likelihood that one did act in accord with that propensity.

The Judicial Conference’s report urged Congress “to reconsider its decision on the policy questions underlying the new rules.” In other words, the Judicial Conference did not want Congress to adopt the new rules. Some criticisms of the new proposed rules were (1) that they presented a “danger of convicting a criminal defendant for past, as opposed to charged, behavior or for being a bad person” and (2) that they “would permit the introduction of unreliable but highly prejudicial evidence and would complicate trials by causing mini-trials of other alleged wrongs.” (Federal Criminal Code and Rules, supra, Historical Notes, p. 254.) But that is not what concerns us here. What concerns us here is the Judicial Conference’s alternative recommendation. The Judicial Conference report stated: “If Congress does not reconsider its decision on the underlying policy questions, the Judicial Conference recommends incorporation of the provisions of new Rules 413-415 as amendments to Rules 404 and 405 of the Federal Rules of Evidence.” (Id. at p. 254.) The Judicial Conference’s report set forth the text of the conference’s proposed amendments to rules 404 and 405, and stated that these proposed amendments “would not change the substance of the congressional enactment.” (Federal Criminal Code Rules, supra, Historical Notes at p. 254.) The report further stated: “These modifications do not change the substance of the congressional enactment. The changes were made in order to integrate the provisions both substantively and stylistically with the existing Rules of Evidence; to illuminate the intent expressed by the principal drafters of the measure; to clarify drafting ambiguities that might necessitate considerable judicial attention if they remained unresolved; and to eliminate possible constitutional infirmities.” (Id. at p. 255.) The federal equivalent of section 1108, subdivision (a) appears in Federal Rules of Evidence, rules 413(a) (pertaining to “a criminal case in which the defendant is accused of an offense of sexual assault”) and 415(a) (pertaining to “a criminal case in which the defendant is accused of an offense of child molestation”). The Judicial Conference’s alternative recommendation was to place the rule 413(a) and rule 415(a) language in a new subdivision (a)(4) to rule 404. The Judicial Conference’s new proposed rule 404(a)(4) expressly made admissible “[ejvidence of another act of sexual assault or child molestation, or evidence to rebut such proof or an inference therefrom, if that evidence is otherwise admissible under these rules, in a criminal case in which the accused is charged with sexual assault or child molestation

The trial court and the prosecutor pointed out in this case that section 1108 does not expressly call for the admissibility of “specific act” evidence by the defendant to rebut the prosecutor’s evidence of a bad act introduced under subdivision (a) of section 1108. This is true, but it is also true that section 1108 does not address the topic of rebuttal evidence at all. We are thus not persuaded that the omission from section 1108 of any mention of the types of rebuttal evidence permitted carries any real significance. If respondent’s reasoning were accepted, one could argue with equal force that if a prosecutor presented evidence under section 1108, subdivision (a), of the defendant’s commission of a prior, uncharged sexual offense, the defendant would not be permitted to testify “no, I did not commit that act.” This is because section 1108, subdivision (a) authorizes admission of “evidence of the defendant’s commission of another sexual offense or offenses,” and does not expressly authorize the admission of evidence that the defendant did not commit the other, uncharged sexual offense or offenses. It appears to us that section 1108, subdivision (a) allows the prosecution to introduce a particular type of evidence (“evidence of the defendant’s commission of another sexual offense or offenses”) which places in issue a character trait of the defendant—his propensity to commit a sexual offense. Once the prosecutor has done this, the defendant is faced with the task of rebutting (if the defendant chooses to attempt to do so) the prosecution’s character evidence. Section