People v. Davis, E021991

CourtCalifornia Court of Appeals
Citation71 Cal.App.4th 1492,84 Cal.Rptr.2d 628
Decision Date11 May 1999
Docket NumberNo. E021991,E021991
PartiesPreviously published at 71 Cal.App.4th 1492 71 Cal.App.4th 1492, 1999 Daily Journal D.A.R. 4419 The PEOPLE, Plaintiff and Respondent, v. Bobby Eugene DAVIS, Defendant and Appellant.

Page 628

84 Cal.Rptr.2d 628
Previously published at 71 Cal.App.4th 1492
71 Cal.App.4th 1492, 1999 Daily Journal D.A.R. 4419
The PEOPLE, Plaintiff and Respondent,
Bobby Eugene DAVIS, Defendant and Appellant.
No. E021991.
Court of Appeal, Fourth District, Division 2, California.
May 11, 1999.
Rehearing Denied June 7, 1999.
Review Granted Aug. 25, 1999.

Page 630

Davis Joseph Macher, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, William M. Wood, Supervising Deputy Attorney General, and Carl H. Horst, Deputy Attorney General, for Plaintiff and Respondent.



1. Introduction

A jury convicted defendant Bobby Eugene Davis (Davis) of committing a lewd act upon a child under the age of 14 (Pen.Code, § 288, subd. (a)). The trial court found true the allegation that Davis had two prior convictions of Penal Code section 288, subdivisions (a) and (b). The trial court sentenced Davis to life imprisonment with a minimum term of 25 years, plus a five-year enhancement for the prior convictions under Penal Code section 667, subdivision (a)(1).

Davis appeals, alleging trial court erred in admitting evidence of prior, uncharged sexual acts with children under 14 years of age.

We reject Davis's appeal because we find that the trial court did not abuse its discretion under Evidence Code section 352 when it admitted the prior, uncharged sexual offenses. We also conclude, as argued by the Attorney General, that the sentence imposed by the trial court was unauthorized and we modify it accordingly.

2. Facts

The six-year-old boy of a neighbor of Davis alleged that in March 1997 Davis had invited the child to sit on his lap, at which time Davis rubbed the boy's crotch. At the December 1997 trial, the trial court admitted evidence from the natural child and two stepchildren of Davis who testified that Davis had molested them when they were young. Davis's natural child, a boy, testified that Davis molested him 13 years earlier, when he was four or five years old. One stepchild, a girl, testified that Davis molested her and a neighbor girlfriend 14 years earlier, when they were six or seven years old. The second stepchild, a girl, testified she was molested 19 years earlier, when she was also six years old. In at least two of the incidents, the children testified that Davis asked the child to sit on his lap and that the molestation followed. As a result of the molestation of his natural son, Davis was convicted in 1987 of violations of Penal Code section 288, subdivisions (a) and (b).

The trial court admitted the testimony of Davis's son and the uncharged claims of molestation of his stepchildren under EVIDENCE CODE SECTIONS 11011, subdivision (b), and 1108. Davis argued that the prior acts were not sufficiently similar to the charges in this case to allow admission of the evidence under section 1108 and that since intent was not an issue in this case, the evidence was not admissible under Evidence Code section 1101, subdivision (b).

Davis did not testify, but defended the case on the basis that the accusations of the child victim were mistaken.

3. Evidence Properly Admitted Under Section 1108

Section 1108 2 limits the application of section

Page 631

1101 3 in criminal cases involving sexual offenses. Section 1108 authorizes admission of evidence of another sexual offense of the accused limited only by the trial judge's discretion to exclude the evidence under section 352.

The purpose of the 1995 legislation adopting section 1108 is set out in the Historical and Statutory Notes pertaining to that section, which provide in part: " 'During the hearing before the Assembly Committee on Public Safety, the language of the new S[ection] 1108 of the Evidence Code was amended to provide explicitly that evidence of other offenses within the scope of the section is not subject to S[ection] 1101's prohibition of evidence of character or disposition. This makes it clear that S[ection] 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 disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense.... [A]dmission and consideration of evidence of other sexual offenses to show character or disposition w[ill] be no longer treated as intrinsically prejudicial or impermissible. Hence, evidence offered under S[ection] 1108 c [an] not be excluded on the basis of S[ection] 352 unless "the probability that its admission will ... create substantial danger of undue prejudice" (or other adverse effects identified in S[ection] 352) substantially outweigh[ ] 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."

The Legislature has created a presumption of the admissibility of prior sexual offenses when applying section 352 to such evidence. In this case, Davis argued that the uncharged offenses were highly prejudicial, involved threats of violence, occurred a number of years ago, and involved two stepchildren and a natural child. In response to that argument, the trial court concluded that section 1108 is constitutional, that in light of the 1987 conviction for two of the offenses the prior sexual offenses were sufficiently current to reflect upon Davis's disposition to commit such crimes, that the evidence should not be excluded under section 352 because the evidence showed a pattern of molestation of young children, some of which occurred while sitting on the lap of Davis.

The trial court also admitted the evidence of the prior uncharged sexual offenses under section 1101, subdivision (b), because the intent with which Davis's act, if proved, was committed is relevant to the charge of a lewd act intended to arouse or gratify the lust or passions or sexual desires of the defendant or child. (Pen.Code, § 288, subd. (a).)

The trial court concluded that evidence of Davis's prior sexual offenses should

Page 632

not be excluded under section 352. We apply the abuse of discretion standard to the trial court's resolution of the probative value of the uncharged sex offenses balanced against the undue prejudice of confusing or misleading the jury. (People v. Kipp (1998) 18 Cal.4th 349, 371, 75 Cal.Rptr.2d 716, 956 P.2d...

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3 cases
  • People v. Van Winkle
    • United States
    • California Court of Appeals Court of Appeals
    • 24 Septiembre 1999 granted Aug. 12, 1998, S071521; People v. Baker (Cal.App.) [same], review granted Nov. 24, 1998, S073543; People v. Davis (1999) 71 Cal.App.4th 1492, 84 Cal.Rptr.2d 628 [same], review granted Aug. 25, 1999 The Supreme Court has also granted review of cases involving the use of prior ......
  • The People v. Diaz
    • United States
    • California Court of Appeals Court of Appeals
    • 15 Febrero 2000 p. 266.) However, Supreme Court review has been granted in other cases involving the present issue or one like it. (People v. Davis (1999) 71 Cal.App.4th 1492, review granted August 25, 1999 (S079736); People v. Murphy (1998) 67 Cal.App.4th 1205, review granted February 24, 1999 ...
  • People v. Davis
    • United States
    • California Supreme Court
    • 25 Agosto 1999
    ...Respondent, v. Bobby Eugene DAVIS, Appellant. Nos. S079736. Supreme Court of California. August 25, 1999. Prior report: Cal.App., 84 Cal.Rptr.2d 628. Petition for review Further action in this matter is deferred pending consideration and disposition of a related issue in People v. Falsetto,......

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