People v. Mullens
| Citation | 119 Cal.App.4th 648,14 Cal.Rptr.3d 534 |
| Decision Date | 17 June 2004 |
| Docket Number | No. D041452.,D041452. |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Patrick Robert MULLENS, Defendant and Appellant. |
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela A. Ratner Sobeck and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
In this case, we hold that in a sex offense prosecution in which the trial court has admitted Evidence Code1 section 1108 propensity evidence that the defendant has committed an uncharged sex offense, it is error to exclude admission of evidence that the defendant has been acquitted of that offense, and such error is reversible if it is prejudicial under the Watson harmless error test (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243). We conclude, as we shall explain, there is prejudicial error, and reverse the judgment. We reject the remaining legal contentions.
In a five-count amended information, the District Attorney of San Diego County originally charged Patrick R. Mullens with four counts of committing a lewd act upon his stepdaughter, SS, a child under the age of 14 years, in violation of Penal Code section 288, subdivision (a) (hereafter Pen.Code, § 288(a)) and one count of committing a lewd act upon VA, a child under the age of 14 years, by kissing her on the mouth in violation of Penal Code section 288(a).
In March 2002, a jury found Mullens not guilty as to the alleged offense against VA, and deadlocked by an eight-to-four vote in favor of not guilty as to the alleged sex offenses against SS. The court declared a mistrial as to the alleged offenses against SS and set the cause for a retrial.
In a second amended information, the district attorney realleged the counts involving SS, charging Mullens again with four counts of committing a lewd act upon SS in violation of Penal Code section 288(a). Because the first jury had acquitted Mullens of the sole count alleged as to VA in the first trial, the new accusatory pleading alleged no offense against her.
Mullens filed a motion in limine to exclude evidence of several uncharged sexual offenses (i.e., allegedly "french-kissing" VA, caressing the thigh of and attempting to kiss on the lips another minor, TW, and asking SS to flash him), claiming that admission of such propensity evidence under section 1108 would violate his rights to due process and equal protection. He also claimed that, assuming section 1108 was constitutional, such evidence should be excluded under section 352 (discussed, post).
The court denied Mullens's in limine motion, ruling that (1) VA's testimony was admissible as section 1108 propensity evidence, and it was not inadmissible under section 352; (2) TW's testimony about the caressing of her thigh was admissible as propensity evidence under section 1108, but her testimony about Mullens's attempt to kiss her did not constitute admissible propensity evidence under section 1108 and was inadmissible under section 1101; and (3) SS's testimony about Mullens's alleged request that she flash him was evidence that he was soliciting a lewd act from a child, it was admissible as propensity evidence under section 1108, and it was not inadmissible under section 352.
During the in limine proceedings, the defense also requested leave to present to the jury a certified verdict form showing that the previous jury in the first trial acquitted Mullens of committing the alleged Penal Code section 288(a) offense against VA. Defense counsel argued that the not guilty verdict was probative to show that a jury in a previous trial had decided the People had failed to prove beyond a reasonable doubt that Mullens committed a lewd act, "french-kissing VA. The court ruled that such acquittal evidence was inadmissible because it was only relevant to impeach a witness's testimony, and the court was aware of no authority that would allow the defense to present acquittal evidence as "evidence of impeachment."
The second jury found Mullens guilty of all four counts (§ 288(a)). The court sentenced Mullens to the middle term of six years on the principal count and concurrent six-year terms as to each of the remaining counts. Mullens's appeal from the judgment followed.
Mullens moved for a new trial on grounds that the court erroneously excluded evidence that the jury in the first trial had found he was not guilty of committing a lewd act against VA in violation of Penal Code section 288(a), and that evidence was "crucial to show that a previous jury either believed that VA was not credible, or that the previous jury believed that the prosecution had failed to carry its burden on that count." The court denied Mullens's new trial motion.
Mullens contends (1) the court erred in admitting the testimony of VA and TW because the prejudicial effect of such propensity evidence outweighed its probative value within the meaning of section 352; (2) the court erred in admitting the testimony of VA without informing the jury that in the first trial Mullens had been acquitted of the charge of committing a lewd act against VA; and (3) the court erred in admitting the propensity evidence involving TW because the thigh-touching incident did not constitute an offense under Penal Code section 288(a).
SS was five years of age when her mother, Theresa, married Mullens. SS, her younger sister, and Mullens lived with Theresa in a condominium. SS had her own bedroom. Claiming Theresa's bed was too soft and hurt his back, Mullens would sleep on the floor, on a couch, or in SS's bedroom.
SS testified that when she was nine years of age, while she was lying on the couch, Mullens sat next to her, took her hand, placed it on his exposed penis, and moved her hand up and down until he ejaculated.
The next incident occurred when she was 10 years of age. At that time she slept on a futon mattress on the floor of her bedroom, and Mullens would sleep next to her every night. On one occasion, Mullens pulled SS's pajama top up, put his mouth on her chest, and licked and sucked her breast.
Another incident occurred when SS was 11 years of age. At that time, the futon had been replaced with bunk beds. She slept on the top bunk, and Mullens slept on the bottom. On four or five occasions, Mullens reached up from the bottom bunk, put his hands between her legs over her clothes, and moved his hands around her vaginal area.
Thereafter, the family moved to a house in August 1998. During that time, when SS was still 11 years of age, Mullens took her on a camping trip. Inside the tent, Mullens lay next to her, kissed her neck and chest, and rubbed his hands between her legs.
Mullens moved out of the house in November 1998. Theresa filed for divorce a month and a half later.
VA and her sister were SS's friends. Shortly after the camping trip, SS told them what Mullens had done. After Mullens moved out of the house, VA, her sister, their father and their brother moved into the house with SS, her mother Theresa, and SS's two younger sisters.
Around the time of VA's eighth grade graduation in May or June of 1999, Mullens was at the house moving out some of his belongings. He leaned over and french-kissed VA. The next day, VA told her mother about the kiss. VA's mother contacted Theresa and told her what VA had said. Theresa asked SS whether Mullens had ever touched her inappropriately, and SS said, "No."
When questioned by the police, VA first denied that Mullens had French-kissed her, stating that it was just a little peck on the cheek. VA later told the officer that the kiss was partly on the lips and partly on the cheek.
TW lived next door to her friend SS. TW would frequently visit SS. TW considered Mullens to be her confidant and friend, and she would go over to his house and talk with him.
On one occasion, when TW was 14 years of age, she was at the house lying on a mattress with Mullens. Mullens touched her thigh. TW did not tell anyone about the incident.
In November 2000, SS attended an all-girls counseling session that involved a discussion of sexual molestation. One of the counselors noticed that SS was upset and asked her what was wrong. SS told them that Mullens had molested her. The counselors called Theresa, and SS finally told Theresa what had happened.
Mullens testified that he married Theresa in 1992. He stated that between June 1 and September 3 of 1996, there was never a time when he was alone with SS in the condominium.
From April to August of 1997, while he was living in the condominium, Mullens slept in the queen-size bed with Theresa. SS slept on a twin bed. During those months he never slept in SS's bedroom. In 1997, there were no bunk beds in SS's room. The bunk bed and futon mattress had been purchased in Washington in January 1996. The furniture, including the bunk bed, was delivered to San Diego from Washington in June 1997 and put into storage. Mullens stated he moved the bunk bed and futon into the condominium in the summer of 1998. He testified further that in 1997 he never stayed with SS in her bedroom and he never sucked or licked her breasts or touched her vaginal area.
From January 1998 to June 1998, Mullens slept with Theresa in her bed. He testified that because Theresa's bed hurt his back, she told him...
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