People v. Ewoldt, S023804

• Decision Date: 28 February 1994
• Docket Number: No. S023804,S023804
• Court: California Supreme Court
• Parties: , 867 P.2d 757 The PEOPLE, Plaintiff and Respondent, v. Craig EWOLDT, Defendant and Appellant.

Page 646

27 Cal.Rptr.2d 646

7 Cal.4th 380, 867 P.2d 757

The PEOPLE, Plaintiff and Respondent, v. Craig EWOLDT, Defendant and Appellant.

No. S023804.

Supreme Court of California,

In Bank.

Feb. 28, 1994.

Quinn Denvir, Sacramento, under appointment by the Supreme Court, and John F. Jackson, Sunnyvale, for defendant and appellant.

Talcott, Lightfoot, Vandevelde, Woehrle & Sadowsky and Michael J. Lightfoot, Los Angeles, as amici curiae on behalf of defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama and Ronald A. Bass, Asst. Attys. Gen., Ronald E. Niver and Gloria F. De Hart, Deputy Atty. Gen., for plaintiff and respondent.

GEORGE, Justice.

In this prosecution for committing lewd acts upon a child, evidence was admitted tending to establish that defendant had committed a prior, uncharged lewd act upon the complaining witness (his stepdaughter) and also had committed prior, uncharged lewd acts upon her older sister. In determining whether it was proper for the trial court to admit this evidence, we first consider whether, in criminal proceedings, the rule set forth in Evidence Code section 1101 (section 1101), prohibiting the use of character evidence to prove conduct on a specified occasion, remains applicable following the adoption of article I, section 28, subdivision (d), of the California Constitution (section 28(d)), an initiative measure enacted in 1982 as part of Proposition 8. We hold, for the reasons that follow, that even if the adoption of section 28(d) abrogated section 1101, the Legislature reenacted section 1101 when it amended that statute in 1986 by more than a two-thirds vote.

We next address the question whether evidence of defendant's uncharged criminal conduct was admissible under section 1101. We hold, for the reasons that follow, that the evidence was admissible to establish that the charged offenses were committed pursuant to the same design or plan used by defendant in committing the uncharged offenses. In so holding, we disapprove our prior holdings to the contrary in People v. Tassell (1984) 36 Cal.3d 77, 201 Cal.Rptr. 567, 679 P.2d 1 and People v. Ogunmola (1985) 39 Cal.3d 120, 215 Cal.Rptr. 855, 701 P.2d 1173. We further hold that the trial court was not required to exclude this evidence on the ground that its prejudicial effect outweighed its probative value under Evidence Code section 352.

Finally, we hold that our decision in People v. Stanley (1967) 67 Cal.2d 812, 63 Cal.Rptr. 825, 433 P.2d 913 does not require exclusion of the complaining witness's testimony that defendant committed an uncharged lewd act upon her, on the ground that such testimony is uncorroborated.

FACTUAL AND PROCEDURAL HISTORY

Defendant was charged by information with four counts of committing a lewd act upon a child under the age of fourteen years (Pen.Code, § 288, subd. (a), a felony) and one count of annoying or molesting a child under the age of eighteen years (Pen.Code, § 647.6, a misdemeanor). The alleged victim of the charged offenses was defendant's stepdaughter, Jennifer. The case proceeded to trial, but a mistrial was declared when the jury was unable to reach a verdict.

At the first trial, the trial court admitted evidence that defendant had committed a prior, uncharged lewd act upon Jennifer, but excluded evidence that defendant had committed prior, uncharged lewd acts upon her older sister, Natalie.

Prior to the second jury trial, which was conducted before another judge, the trial court ruled that the evidence that defendant had committed prior, uncharged lewd acts upon Natalie was admissible. The trial court also granted the People's motion to dismiss one of the counts alleging commission of a lewd act upon a child under the age of fourteen years. On the day following this ruling, defendant asked the court to reconsider its decision allowing the admission of evidence that defendant had committed prior, uncharged lewd acts upon Natalie, and offered to stipulate "that if the jury finds that the defendant was present and committed the various acts which are the subject of these charges, ... he did so with the requisite specific intent and that, therefore, ... intent would no longer be an issue...." The court, however, reiterated its ruling that the evidence was admissible.

Jennifer, who was 15 years of age at the time of trial, testified that her mother married defendant in 1977 when Jennifer was 3 years of age. From the time Jennifer was six or seven years of age, and continuing on a weekly or biweekly basis until she was fourteen years of age, defendant touched Jennifer "in a way [she] didn't like." The first such incident, which was not charged in the information, occurred while Jennifer was watching television with defendant in the living room. Defendant touched either her breasts or her vaginal area; Jennifer could not remember which. She did recall that she "was scared" and "knew that it was wrong."

The incident charged as count 1 of the information occurred in 1985, when Jennifer was in the fifth grade. When she returned home from school one day and entered her parents' bedroom to greet them, defendant was in the bathroom. Telling Jennifer he had to change his clothes, he instructed her to turn around. She did so and began describing her day. Defendant said he was dressed and she could turn to face him. When Jennifer turned around, she found that defendant was naked and his penis was erect. He forced Jennifer onto the bed, fondled her vaginal area, and undressed her. Defendant again fondled Jennifer, and attempted to force her legs apart. After Jennifer cried and told defendant to stop, he did so and apologized to her, promising it would not happen again.

The incident charged as count 2 occurred in 1986 or 1987, when Jennifer was in the sixth or seventh grade. Defendant, who was naked, again assaulted Jennifer on his bed, fondling her both over and under her underwear, and asked her to undress. When she refused, he removed her clothes and attempted to force her legs apart. When Jennifer resisted and began to cry, defendant stopped.

Jennifer could not recall whether, during either of the incidents charged as counts 1 and 2, defendant penetrated her vagina with his finger, because "it had happened so often."

The incident charged as count 3 occurred in 1987, when Jennifer was in the seventh grade. On that occasion, defendant entered Jennifer's bedroom in the middle of the night while she was asleep. She awoke to find him clothed in his underwear, smelling of alcohol. Defendant uncovered his penis and told Jennifer to touch it, but she refused. When he forced her to do so, she began to cry and said she had to go to the bathroom. After using the bathroom, Jennifer proceeded toward her parents' bedroom, intending to wake her mother. Defendant grabbed her arm, pulling her toward her bedroom. They struggled, and Jennifer screamed "no," waking her mother. Jennifer told her she had had a Jennifer did not tell anyone about defendant's conduct. She once threatened defendant she would tell someone if he did not stop, but defendant said that in the event she did so, she "would be in real big trouble" and "it would break up the family." Jennifer remained silent, because she feared no one would believe her and felt "very confused."

nightmare, and slept with her mother the remainder of that night.

The incident charged as count 4 (the misdemeanor count of violating Pen.Code, § 647.6) took place in November 1988, when Jennifer was 14 years of age. Defendant entered her bedroom while she was asleep, and she awoke when she felt him touching her breasts. She asked defendant what he was doing, and he replied he was covering her with a blanket. Jennifer could not recall whether on this occasion defendant touched her under her clothes, "because this same thing happened many times." After this occurrence, Jennifer convinced her mother to install a lock on Jennifer's bedroom door.

Shortly after this final incident, Jennifer disclosed defendant's conduct to a friend, who relayed the information to a school counselor. The counselor notified the police.

Jennifer's sister Natalie, who was 23 years of age at the time of trial, testified she was 10 or 11 years of age when her mother married defendant. Shortly after defendant began residing with them, Natalie awoke on three occasions to find defendant beside her bed, touching her breasts and vaginal area. On the first two occasions, Natalie was uncertain whether she had been dreaming. On the third occasion, when she asked defendant what he was doing, he said he was "straightening up the covers." She told him to leave, and no further incidents of this type occurred. Subsequently, however, on several occasions Natalie and her older sister, Theresa, found defendant peeking into their bedroom window while they were dressing.

Natalie never told anyone defendant had molested her, until she learned defendant had molested Jennifer.

Jennifer's mother, Karen Ewoldt, testified that, late one night, she heard Jennifer say "get out." Fearing someone had broken into the house, Ms. Ewoldt entered Jennifer's bedroom and discovered defendant "pretending like he was picking up something." On another occasion, she heard Jennifer scream and found her "running down the hall." Defendant was walking toward the kitchen. Jennifer said she had had a nightmare. She slept in her mother's bed the remainder of that night, which was unusual for her to do, and defendant slept on the living room couch, as he often did. On a third occasion, she observed defendant looking into the window of Natalie and Theresa's bedroom.

Defendant testified in his own behalf, denying that any of the incidents described by Jennifer had occurred and that he ever had peeked into Natalie and Theresa's bedroom window.

The jury found defendant guilty as charged in counts 1, 3 and 4, but was unable to reach a verdict on count 2,...