People v. Van Winkle

• Decision Date: 24 September 1999
• Docket Number: No. F030661.,F030661.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jeffrey Lowell VAN WINKLE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

89 Cal.Rptr.2d 28

75 Cal.App.4th 133

The PEOPLE, Plaintiff and Respondent, v. Jeffrey Lowell VAN WINKLE, Defendant and Appellant.

No. F030661.

Court of Appeal, Fifth District.

September 24, 1999.

Review Denied December 15, 1999.

Matthew H. Wilson, under appointment by the Court of Appeal, San Francisco, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Stan Cross and Patrick J. Whalen, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

VARTABEDIAN, Acting P.J.

A jury convicted defendant Jeffrey Lowell Van Winkle of two counts of lewd and lascivious conduct with a child. On appeal, defendant contends that CALJIC Nos. 2.50.1 and 2.50.01 unconstitutionally lower the People's burden of proving the current sexual offense beyond a reasonable doubt by permitting prior sexual offenses (proved by a preponderance of the evidence) to show that he actually committed the current crime. Specifically, defendant contends that (1) prior sexual offenses should not be used to prove predisposition or actions in conformity therewith, (2) prior sexual offenses should be proved beyond a reasonable doubt, and (3) the jury instructions may mislead the jury into believing that a preponderance of the evidence is sufficient to convict him of the current offense. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 25, 1998, the District Attorney of Mariposa County filed an amended information charging defendant with two counts of lewd and lascivious acts upon a child in violation of Penal Code section 288, subdivision (a). At trial, the People presented evidence of defendant's current offense, as well as prior sexual misconduct.

Current Offense

The current charges pertained to Wendy E., the daughter of Sherry S. Between January and May of 1996, Sherry and Wendy lived with defendant in a small two-bedroom mobile home, along with Sherry's seven-year-old son and defendant's five-year-old son.

After Sherry and defendant separated, Sherry married Michael S. in or around January 1997. Wendy lived with her mother and Michael. Michael had an older daughter named Heather. One day, Wendy told Heather that she (Wendy) had been molested. Heather informed her father, Michael. Michael confirmed the story with Wendy. Michael then told Sherry, who also talked to Wendy and then immediately notified the police.

On July 24, 1997, a representative from child protective services interviewed Wendy, while a sheriffs deputy and an assistant district attorney observed the interview from behind a one-way mirror. During the interview, Wendy told the child protective services worker that on two occasions defendant had put his hand down her pants. Using a teddy bear, she described how on one occasion defendant had held her in front of him, and once had held her from behind. The interview was videotaped, and that videotape was played for the jury.

At trial, Wendy, who was seven years old when she testified in front of the jury, said that defendant had touched her private area on only one occasion. She recalled that defendant grabbed her, had her sit on his lap, and put his hand down her underwear.

A sheriffs deputy, who was also the chief investigator for sexual assaults, also testified. She explained that it is not unusual for children to forget or deny prior sexual molestations. She also explained that interviewing child molest victims is complicated due to the child's limited vocabulary and feelings of confusion.

Prior Misconduct

The People also presented evidence that defendant had molested two other girls. Jessica, defendant's daughter, who was 12 years old at the time of trial, testified that her father molested her when she visited him on the weekends when she was between the ages of three and six years old.¹ Almost every time she visited him, they took baths together naked. He would also put his finger by her vagina and rub her; he would also have her sit on his lap while he rubbed his penis back and forth between her legs. Jessica also testified that defendant placed his finger into her anus, and that he had her orally copulate him several times and, on at least one occasion, he ejaculated. Defendant often engaged in similar conduct in Jessica's bedroom. There was also an incident where she, defendant, and Jessica's cousin Cassandra were all naked inside a closet. Jessica also testified that her father would kiss her and Cassandra and stick his tongue into the girls' mouths.

Jessica's grandmother, Mary W., testified that in the summer of 1992, she terminated Jessica's visits with defendant when Jessica told her of the molestations.

Cassandra, defendant's niece, who was 15 years old at the time of trial, testified defendant would occasionally touch her in ways that made her feel uncomfortable, both at defendant's house and at her father's house. She recalled an incident when she, Jessica and defendant were in the closet, and remembered that she and Jessica were naked. She testified that defendant had touched her private parts with his hands and made her orally copulate him. Once defendant tried to have intercourse with her, but she pulled away and locked herself in the bathroom. On another occasion, defendant kissed her and put his tongue in her mouth. Cassandra saw defendant kiss Jessica in the same manner; Cassandra also saw defendant touch Jessica.

Cassandra's mother testified that in 1985, she suspected that Cassandra's father (defendant's brother) had molested Cassandra when she was three or four years old. In 1992, when Cassandra's doctor noticed some genital irregularities, Cassandra said that defendant had touched her private area.

Defense

Defendant took the witness stand and denied molesting Wendy. He believed that Sherry, the victim's mother, had made up the allegations because defendant had Sherry removed from his house and arrested for property damage. Defendant also testified that Sherry had called him twice saying that she had brought the charges to "get even" with him.²

Defendant also denied any sexual activity with Jessica or Cassandra. He surmised that Jessica's grandmother, Mary W., had pressured Jessica into asserting the fabricated allegations. The grandmother had forced defendant and Jessica's mother out of her house and had also sought custody of Jessica.³

Conviction and Sentencing

The jury found defendant guilty on both counts of violating Penal Code section 288, subdivision (a). The court sentenced defendant to an aggregate term of eight years: six years on count I (the midterm) and a consecutive two years on count II (one-third the midterm). Defendant timely appealed.

DISCUSSION

I. CALJIC Nos. 2.50.1 and 2.50.01

Defendant's arguments concern CALJIC Nos. 2.50.1 and 2.50.01.⁴ CALJIC No. 2.50.01 permits the jury to consider uncharged sexual offenses as evidence that defendant had a disposition to commit similar sexual offenses and, if such a predisposition is found, then allows the jury to infer that the defendant was likely to and actually did commit the crimes with which he is currently charged. Pursuant to CALJIC No. 2.50.1, the prosecution only has to prove the uncharged offenses by a preponderance of the evidence. These instructions are based on section 1108 of the Evidence Code.⁵

II. Waiver

At the outset, the People argue that defendant has waived his right to challenge the jury instructions by failing to object at trial. However, the constitutional right to have all elements of a criminal offense proved beyond a reasonable doubt is substantial. Thus, we find that defendant's challenge to the constitutionality of CALJIC Nos. 2.50.1 and 2.50.01 has not been waived. (See Pen.Code, § 1259 [challenges to jury instructions affecting substantial rights are not waived even if no objection is made at trial]; see also People v. Cuevas (1995) 12 Cal.4th 252, 260, 48 Cal.Rptr.2d 135, 906 P.2d 1290 [the due process clause of the Fourteenth Amendment requires the prosecution to convince the jury of all essential elements of guilt beyond a reasonable doubt]; see also People v. Roder (1983) 33 Cal.3d 491, 497, 189 Cal.Rptr. 501, 658 P.2d 1302 [An evidentiary device, such as a jury instruction addressing inferences or presumptions, is unconstitutional if it undermines the jury's responsibility to convict a defendant based on proof beyond a reasonable doubt of the facts necessary to establish the crime.].)

III. The Constitutionality of Using Prior Misconduct to Prove Propensity

Defendant challenges the use of prior sexual misconduct to prove that he committed the current sexual offense. While he acknowledges that a long line of cases holds that prior crimes need only be proved by a preponderance standard,⁶ defendant points out that before the enactment of Evidence Code section 1108, prior offenses could not be used by the jury to find that a defendant was predisposed to commit similar acts. (See Evid.Code, § 1101 [allowing evidence of prior crimes to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but not allowing such evidence to prove defendant committed the current crime].)

This constitutional attack on Evidence Code section 1108 has already been rejected in People v. Fitch (1997) 55 Cal.App.4th 172, 63 Cal.Rptr.2d 753, a Court of Appeal, Third District, case. (See id. at pp. 175-176, 63 Cal.Rptr.2d 753 [upholding Evid. Code, § 1108 and the use of prior sexual offenses to prove another sexual offense]; see also id. at pp. 182, 63 Cal.Rptr.2d 753 ["The Legislature has determined the need for this evidence is `critical' given the serious and secretive nature of sexual crimes and the often resulting credibility contest at trial."].) We have chosen to follow Fitch. (See People v. Pierce^* (Cal.App. 1999) 86 Cal.Rptr.2d 30.)⁷

Defendant also claims that evidence of other offenses is inherently prejudicial....