People v. Lamer

• Court: California Court of Appeals
• Writing for the Court: Aaron
• Citation: People v. Lamer, 2 Cal.Rptr.3d 875, 110 Cal.App.4th 1463 (Cal. App. 2003)
• Decision Date: 31 July 2003
• Docket Number: No. D038958.,D038958.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Leslie Allen LAMER, Defendant and Appellant.

2 Cal.Rptr.3d 875

110 Cal.App.4th 1463

The PEOPLE, Plaintiff and Respondent, v. Leslie Allen LAMER, Defendant and Appellant.

No. D038958.

Court of Appeal, Fourth District, Division 1.

July 31, 2003.

Certified for Partial Publication.¹

Review Denied October 15, 2003.

Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr. and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.

AARON, J.

I. INTRODUCTION

A jury convicted the defendant, Leslie Allen Lamer, of 12 counts of lewd and lascivious acts on a child under the age of 14, in violation of Penal Code section 288, subdivision (a). The jury also found true all 10 special allegations of substantial sexual contact with a child under the age of 11, within the meaning of Penal Code section 1203.066, subdivision (a)(8). The trial court sentenced Lamer to a total prison term of 28 years. He timely filed an appeal, contending that the trial court erred in: (1) allowing the People to introduce sexual misconduct propensity evidence under Evidence Code section 1108 and instructing the jury regarding this evidence, pursuant to CALJIC No. 2.50.01; (2) admitting two videotapes of the victim children describing the abuse, pursuant to Evidence Code section 1360; and (3) instructing the jury, pursuant to CALJIC No. 2.62, that it could draw unfavorable inferences from Lamer's failure to explain or deny evidence against him. In the unpublished portion of this opinion, we find no merit in Lamer's first two contentions. In the published portion, we agree that the trial court improperly gave CALJIC No. 2.62. We conclude, however, that such error was harmless and affirm the judgment of the trial court.

II. FACTS AND PROCEDURAL BACKGROUND

A The Victims

The victims' mother, Michelle P., met Lamer in February 1991 and lived with him for much of the period between March 1991 and July 1994. During this time, one of the victims, James C, who was then between the ages of four and five, lived with his mother and with Lamer, when Lamer resided with the family. Jessica C, the other victim, who was at the time between the ages of six and eight, also lived with her mother and Lamer through much of the period from March 1991 through March 1992, and with her grandparents after that. Jessica C. visited her mother and Lamer's apartment on a daily basis and occasionally spent the night there.

Although Michelle P. and Lamer broke up in July 1994, and both became romantically involved with other people, they secretly continued to have sexual relations with each other through the beginning of January 1997. Lamer frequently called Michelle P. at her place of work throughout late 1996. Lamer also sent cards and notes to Michelle P. through 1997.

B. The Disclosures Of The Molestations

In December 1994, Jessica told her older half sister, Susan G., that Lamer had molested her. Susan G. informed Michelle P., their mother. Michelle P. stated that she did not believe Jessica. In 1995, Jessica tried to tell her mother that Lamer had touched her inappropriately. Her mother responded by suggesting that Lamer did not know where to put his hands. Jessica testified that at the time, her mother accused her of making up the accusations. In late December 1996 or early January 1997, Jessica told a family friend at whose house she was staying that Lamer had molested her. The family friend told Jessica that she should tell her father, which she did.

In January 1997, James disclosed to his mother that Lamer had molested him. A week or so later, Michelle P. asked Jessica if Lamer had molested her, and Jessica replied that he had. Michelle P. called the police that night.

C. The Investigation

On March 20, 1997, Detective Kurt Goldberg contacted Lamer by telephone and informed him that he was investigating child molestation allegations made against Lamer by James and Jessica. Lamer agreed to meet with Goldberg on April 17, 1997. Lamer did not keep that appointment, and Goldberg later learned that Lamer had left the area. A warrant was issued for Lamer's arrest in July 1997. Lamer was arrested in Florida and was extradited to California in December 2000.

D. James's Trial Testimony

At the time of trial, James was 13 years old. He testified that Lamer began molesting him when he was four or five years old. The molestations occurred when Lamer would ask James to lie down on the living room couch with him. Lamer would then touch James's penis and James would touch Lamer's penis. James testified that Lamer had molested him on numerous occasions, mainly in the mornings.

E. Jessica's Trial Testimony

At the time of trial, Jessica was 16 years old. She testified that when she was six years old, Lamer made her sit on top of him and rubbed her against his crotch. She also testified that when she was seven, Lamer would often touch her vagina while they sat together on the living room couch. Jessica also testified that Lamer touched her vagina with his penis numerous times and that he had attempted to put his penis in her anus. Lamer also made Jessica put her mouth on his penis while he watched a pornographic movie. At some point, something wet came out of his penis. Jessica also testified that she saw Lamer molest James.

F. The Defense

Lamer denied that he had molested the children. He also claimed that he could not remember having slept with Michelle P. after 1994, but testified that she had continually attempted to contact him after their relationship ended. Lamer testified that the molestation allegations arose within a month after he told Michelle P. that he and his new wife and her children were planning to move. Lamer also testified that Michelle P. was irate when she learned that he was moving.

III. DISCUSSION

A.-B^*

C. The Trial Court Committed Harmless Error In Giving CALJIC No. 2.62

Lamer contends that the trial court improperly instructed the jury, pursuant to CALJIC 2.62, that it was entitled to draw certain adverse inferences from his failure to explain or deny the evidence against him. Lamer claims that this improper instruction implicated his constitutional rights and constitutes reversible error. We conclude that it was improper for the trial court to give this instruction, but that the error did not implicate Lamer's constitutional rights, and was harmless.

During the reported portion of the jury instruction conference, the court informed counsel that the People were requesting CALJIC No. 2.62. Defense counsel objected, claiming that the instruction "tends to pinpoint [his] client's testimony." The trial court overruled the objection, stating: "The Court would give 2.62 over the defense's objection. It is an accepted instruction. It [is] specifically referring to the defendant. So it has been accepted that has singling out the defendant [sic], what I should say, and I think there is evidence in the record that the trier of fact may question, for example, testimony by the defendant of his denying, or should I say, some of his failing to explain the basis for James making allegations against him arguably. So there [are] other examples too, and I think that there is sufficient evidence to support giving the instruction."

The jury was instructed as follows:

"In this case defendant has testified to certain matters. If you find that the defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably] be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may reasonabl[y] be drawn therefrom those unfavorable] to the defendant are the more probable.

"The failure of a defendant to deny or explain evidence against him does not, by itself, warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt. "If a defendant does not have the knowledge that he would need to deny or to explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain this evidence."

1. The Instruction Was Improper Since There Were No Facts Or Evidence In The Prosecution's Case Within Lamer's Knowledge That He Failed To Explain Or Deny

"[Assertions of instructional error are reviewed de novo." (People v. Shaw (2002) 97 Cal.App.4th 833, 838, 118 Cal.Rptr.2d 678.) "`It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference [citations].'" (People v. Saddler (1979) 24 Cal.3d 671, 681, 156 Cal.Rptr. 871, 597 P.2d 130 (Saddler,) quoting People v. Hannon (1977) 19 Cal.3d 588, 597, 138 Cal.Rptr. 885, 564 P.2d 1203.) An appellate court's duty in reviewing a claim that CALJIC No. 2.62 was improperly given is "to ascertain if [the] defendant ... failed to explain or deny any fact of evidence that was within the scope of relevant cross-examination." (Saddler, supra, 24 Cal.3d at p. 682, 156 Cal.Rptr. 871, 597 P.2d 130, italics added.) In order for the instruction to be properly given "[t]here [must be] facts or evidence in the prosecution's case within [the defendant's] knowledge which he did not explain or deny." (Ibid.) A contradiction between the defendant's testimony and other witnesses' testimony does not constitute a failure to deny which justifies giving the instruction. (Ibid.) "[T]he test for giving the instruction is not whether the defendant's testimony is believable. CALJIC No. 2.62 is unwarranted when a defendant explains or denies matters within his or her knowledge, no...