People v. Moon

165 Cal. App. 3d 1074, 212 Cal. Rptr. 101
California Court of Appeal·Decided March 22, 1985·No. A025709·Published·Cited by 11 cases

Opinion

165 Cal.App.3d 1074 (1985)
212 Cal. Rptr. 101

THE PEOPLE, Plaintiff and Respondent,
v.
ALFRED CARL MOON, JR., Defendant and Appellant.

Docket No. A025709.

Court of Appeals of California, First District, Division Three.

March 22, 1985.

*1077 COUNSEL

Philip H. Pennypacker, under appointment by the Court of Appeal, and Daniel Costello for Defendant and Appellant.

John K. Van de Kamp, Attorney General, Thomas A. Brady and Charles J. James, Deputy Attorneys General, for Plaintiff and Respondent.

[Opinion certified for partial publication.[*]]

OPINION

SCOTT, J.

Appellant Alfred Carl Moon, Jr., was convicted by a jury of two counts of lewd conduct with a child under the age of 14 years (Pen. Code, § 288, subd. (a)), two counts of unlawful sexual intercourse (Pen. Code, § 261.5), and one count of molesting a child under the age of 18 (Pen. Code, § 647a). The principal issue in this appeal is whether, in light of People v. Tassell (1984) 36 Cal.3d 77 [201 Cal. Rptr. 567, 679 P.2d 1], the trial court erred in admitting evidence of several prior, not remote uncharged sexual offenses committed by appellant against the three prosecuting witnesses, to prove his disposition or intent toward each of those victims. We conclude that notwithstanding Tassell, the court did not err, and affirm the judgment.

I

Appellant lived with Donna H. and her three daughters. In September 1974, when he moved in, Marie H. was ten years old, Janenine was five, and Michaelle, three.

Marie, who was 19 at the time of the trial, testified that when she was 17, appellant had intercourse with her in her bedroom in November 1981, and in September or October of that same year.

Marie also testified that appellant first took a sexual interest in her shortly after he moved into the house, when she was 11. He woke her up, told her *1078 there was something he wanted to teach her, and stuck his fingers into her vagina and rubbed her breasts. He fondled her on several other occasions; when she was about 13 or 14, he had intercourse with her. The acts of intercourse continued until she moved out of the house shortly after her 18th birthday. He also engaged in acts of oral copulation with her. Marie didn't tell anyone about any of these incidents until after she moved out when she told her aunt.

Janenine was 14 at the time of the trial. She testified that in August 1980, appellant came into her bedroom and put his mouth on her breast and shoved his fingers into her vagina. He continued to do this once or twice a month, including one day in January 1983, when she was home sick from school.[1]

Michaelle testified that on Thanksgiving, 1982, while appellant was sitting beside her on the couch wearing his robe, he grabbed her hand and made her rub his penis. Before that, there were occasions when he would fondle her breast and touch her vagina.

Donna H., the girls' mother, testified that after appellant was arrested, he telephoned her from jail and said, "I hope you understand what I have to do. I don't want to hurt the girls anymore. This must be very hard for you. It's very hard for me. I don't understand how I could have become so low as to do to them what I did. I don't want to hurt them anymore, but I don't believe the justice system is fair...."

Appellant did not testify. In his behalf, one witness testified that Michaelle and Janenine did not have a good reputation for veracity; another witness testified that appellant had treated children well when he volunteered at a camp.

II

(1a) First, appellant contends that the trial court erred when it allowed each of the three victims to testify as to evidence of prior sexual conduct with them other than the specific incidents with which he was charged. The trial court admitted the evidence of the uncharged offenses to show intent and "common design or plan." However, as we will discuss, the instructions given more narrowly limited the purpose for which the offenses could be considered.

*1079 (2) Evidence of prior conduct must be excluded under Evidence Code section 1101, subdivision (a), "if the inference it directly seeks to establish is solely one of propensity to commit crimes in general, or of a particular class. [Citation.]" (People v. Alcala (1984) 36 Cal.3d 604, 631 [205 Cal. Rptr. 775, 685 P.2d 1126].) However, this rule of exclusion does not apply to prior conduct, even if criminal, which is relevant to prove any facts material for the People, such as intent, identity, plan, motive, preparation, or opportunity, or to overcome any material matter sought to be proved by the defense. (Ibid.)

(3) Courts have long held that in cases involving sex crimes, evidence of other, not too remote, sex offenses with the prosecuting witness is admissible because it is relevant to show a "lewd disposition or the intent of the defendant" toward that witness. (People v. Sylvia (1960) 54 Cal.2d 115, 119-120 [4 Cal. Rptr. 509, 351 P.2d 781] [defendant charged with sex offenses against B, age 12, and others; defendant denies conduct described by B; held: evidence of prior similar conduct against B admissible]; People v. Brown (1971) 14 Cal. App.3d 334, 344-347 [92 Cal. Rptr. 370]; People v. Hefner (1981) 127 Cal. App.3d 88, 98 [179 Cal. Rptr. 336].) In People v. Barney (1984) 143 Cal. App.3d 490 [192 Cal. Rptr. 172], the court explained the relevance of such evidence in a slightly different way. "[W]hen the uncharged offense evidences the emotion of sexual passion toward a particular individual the statutory exclusion [of Evid. Code, § 1101, subd. (a)] is inapplicable. (See People v. Sylvia (1960) 54 Cal.2d 115, 119-120 [4 Cal. Rptr. 509, 351 P.2d 781]; People v. Stanley (1967) 67 Cal.2d 812, 816 [63 Cal. Rptr. 825, 433 P.2d 913]; 2 Wigmore, Evidence (Chadbourne rev. ed. 1979) § 398, especially fn. 1, pp. 446-447 (Cal. cases collected).) Such evidence tends to prove defendant would act to realize his desire on the occasion of the charged offense (id., at § 399) and is not dependent upon defendant's bad character or his disposition to do wrongful acts." (Barney, supra, at p. 494; accord People v. Dunnahoo (1984) 152 Cal. App.3d 561, 574 [199 Cal. Rptr. 796], hg. den.)

The rule is not absolute; an exception exists where the only prosecution evidence of the other offenses, as well as the only prosecution evidence as to the charged offenses, is the uncorroborated testimony of the prosecuting witness. Under those circumstances, the basic issue is the veracity of the witness and the defendant, and the trier of fact is not aided by the uncorroborated testimony of the prosecuting witness as to the prior offenses. (People v. Dunnahoo, supra, 152 Cal. App.3d at p. 574.)

(1b) This is not a case in which the only prosecution evidence was the testimony of a single victim. In contrast, each victim's testimony was corroborated by that of the others, and by the defendant's own admission to *1080 the girls' mother. (See

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People v. Moon, 165 Cal. App. 3d 1074, 212 Cal. Rptr. 101 (Cal. Ct. App. 1985).

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