Filed 8/2/13 P. v. Smith CA3
                                          NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----



THE PEOPLE,                                                                             C071701

                   Plaintiff and Respondent,                               (Super. Ct. No. 62-108412)

         v.

DONALD ALBERT SMITH,

                   Defendant and Appellant.




         A jury found defendant Donald Albert Smith guilty of one count of a lewd and
lascivious act upon a child under the age of 14 years. (Pen. Code, § 288, subd. (a).)1 The
trial court sentenced him to eight years in state prison. On appeal, defendant contends the
trial court abused its discretion in admitting prior convictions, erred in failing to instruct
the jury on attempted lewd and lascivious acts on a child, and failed to obtain a waiver of
his right to be present during a critical stage of the proceedings. We shall affirm.


1 Undesignated statutory references are to the Penal Code.



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                                FACTUAL BACKGROUND
The Incident

       Defendant moved to Auburn from Idaho with his adult son, his son‟s girlfriend
Rebekah, and their three children. They all initially lived with Crystal W., who was a
friend of Rebekah‟s. Also living there were Crystal‟s boyfriend, his cousin, a friend, and
Crystal‟s three minor children (two boys and the victim, eight-year-old Jane Doe No. 1
(Jane)). Defendant was called “grandpa” by the children. He normally slept on the living
room couch. By August 6, 2011, defendant was still staying at Crystal‟s Auburn
apartment although defendant‟s son, Rebekah, and their children had moved out the week
before.

       Crystal was cleaning the kitchen that evening. The children slept downstairs in the
living room because their room was infested with bedbugs. Two of the children, Jane‟s
older brother and the cousin, were asleep on the couch while defendant drank Jack
Daniels at the kitchen table.

       Jane got permission from Crystal to lie down on the couch. Jane went to the spot
where defendant normally slept and fell asleep. Later, defendant said he was tired and
lay down on the sofa next to Jane. When Crystal went to move Jane, defendant said,
“No, she‟s fine, she can stay there.” Crystal expressed discomfort with the arrangement,
but defendant told her, “No, no really, it‟s okay.” According to Crystal, Jane, defendant,
and the two other children were all asleep on the couch when Crystal went to bed at 3:00
a.m. Jane and defendant were sleeping on their sides, while Jane‟s brother slept head to
head with Jane, and the cousin slept seated and leaning against the armrest.

       The cousin was later awakened by Jane‟s crying. Jane said she was cold and
wanted all the blankets so she could move to the floor. The cousin heard defendant tell
Jane to lie down, go back to sleep, and that everything would be okay. Jane moved to the




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floor after one of her brothers told her to go there. The cousin heard nothing else that
night.

         The following day, Jane uncharacteristically rushed out of the house without
eating breakfast. She did not return until lunchtime, when she barely ate any of her
favorite lunch. Crystal noticed that defendant was close by every time Jane walked up to
her. After lunch, the children were asked if they wanted to go swimming; Jane did not
and did not want to be anywhere near defendant.

         Regina P. lived next door to Crystal, and her daughter played with Jane every day.
On August 7, 2011, while playing with Regina‟s daughter, Jane approached Regina and
said she needed to talk to her. Regina asked if it could wait, but Jane insisted that she had
to talk right now as it was important. The two walked together, and Jane told Regina that
her Grandpa was touching her “inappropriately.” Regina asked what this meant, and Jane
replied that he touched her in places where she should not be touched.

         Regina left Jane and walked to Crystal‟s apartment. As she passed defendant, he
said, “I didn‟t do it.” Regina met Crystal and told her they needed to address an
important matter. As they walked towards Jane, Regina noticed defendant was talking to
her. Defendant was about three feet from Jane, who “kind of had a disturbed look on her
face.” Crystal saw defendant whispering into Jane‟s ear; Jane had a look of “terror” on
her face. Regina told Jane to come, and Jane ran to them. Regina told Jane to tell her
mother what happened; Jane said defendant touched her “inappropriately.” She said that
while she slept, defendant‟s hands were all over her clothes and he had “humped” her leg.

         Crystal returned home and told her boyfriend what Jane said. He then informed
defendant of the accusation and told him to leave the house. Defendant got his
belongings and left. Crystal did not call the police immediately because she wanted to be
sure the charges were true. Crystal‟s sister called the police about 10 days later.



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The MDIC Interview

       Jane was interviewed by Fionna Tuttle at a Multidisciplinary Interview Center
(MDIC) on August 18, 2011. Jane said she was eight years old and defendant touched
her in places he was not supposed to. Jane was sleeping on the couch, with defendant
lying next to her. She awakened in the middle of the night because defendant was
touching her “here and right here.” Defendant touched her “private” above the clothes.
He said her name, and it “felt weird when he was doing it.” Wanting to get off the couch,
Jane rolled off and stayed on the carpet. Defendant tried to pick her up, but Jane said,
“Mmm,” so defendant left her alone. Jane then went upstairs to her mother‟s room,
where she slept.

       Jane‟s mother was asleep when Jane awoke the next morning, so she dressed and
went out to play with her friends. Defendant said nothing when she saw him downstairs.

       Jane first told her “Aunt” Regina about the incident. She told Regina that
defendant touched her in “weird places.” She then told her mother that defendant
touched her “in those places” and “right here and right here.” Her mother went to tell her
boyfriend while Jane stayed with Regina.

       Testifying, Jane could not remember being awakened by defendant that night or
being touched by him. She did not really remember defendant. She recalled giving the
MDIC interview and testified that everything she told the interviewer was the truth.
Evidence Code Section 1108 Evidence

       Rebekah has three children, John Doe (John), Jane Doe No. 2 (Jane No. 2), and an
infant, J.S. Joshua B. is John and Jane No. 2‟s father, while defendant‟s son is J.S.‟s
father. They lived in Idaho for around two years before relocating to California. In
September 2011, after the family moved back to California, Joshua B. told Rebekah that
there was an investigation involving their children. John later told Rebekah that
defendant had him touch his private and then defendant touched John‟s private. Jane No.


                                             4
2 told Rebekah that defendant touched her private area with a finger, there was rubbing,
and he put something inside her.

      John was eight years old when he testified at trial and seven during his MDIC
interview. When living in Idaho, he saw defendant‟s “peep-peep” “[a]lmost every time.”
Defendant taught him “all of the bad thing,” and “a lotta bad stuff.” Defendant asked
John to suck on his penis, but John refused. Defendant would take John‟s pants down
and touch John‟s penis with his hand. He “would slap it around and play with it.” He
also had poison oak and touched John‟s private spot, causing him to get poison oak and
go to a doctor. John was about five years old when defendant started talking about sex
and six when the touching started. It also happened when John was four and living with
the family in Auburn.

      Jane No. 2 was five years old when she testified and gave her MDIC interview.
She was four when she lived in Idaho. Defendant touched her on her “hoo-hoo,” which
was used for “peeing.” Once, when her parents were at the store and her brother was
asleep, defendant pulled down her capri pants, touched her with his hand, and then
grabbed something in his hand and “stuck it through” her “hoo-hoo.” It felt hard and was
like “a thorn.” Asked what it looked like, she said “[i]t only come from a tree.” Her
“hoo-hoo” was bleeding and her mother had to put a bandage on it.

      Another time, she was in defendant‟s bedroom, next to his bed, when defendant
pulled down her underwear and touched and poked her “hoo-hoo” with his finger.
Defendant told her to touch his “hoo-hoo” next, but she ran when seeing that defendant
was going to grab her arm and make her do it.

      Once, when she was on defendant‟s bed in Idaho, he pulled down her underwear
and kissed her “hoo-hoo” with his tongue. She then smacked defendant on his head.
Defendant once pulled down his pants and told her to kiss and play with his penis. She
also saw defendant play with her brother‟s penis.

                                            5
       The parties stipulated that defendant was previously convicted in Placer County
for unlawful intercourse with a minor, a felony (former § 261.5, subd. (c)) and annoying
and molesting a child, a misdemeanor (former § 647.6) on October 16, 2000.

                                      DISCUSSION

                       I. Prior Uncharged Misconduct Evidence

       Defendant contends the trial court abused its discretion in admitting his prior
convictions for sexual misconduct with minors. We disagree.

       Evidence Code Section 1108 provides, “In a criminal action in which the
defendant is accused of a sexual offense, evidence of the defendant‟s commission of
another sexual offense or offenses is not made inadmissible by Section 1101, if the
evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1108, subd. (a);
see People v. Falsetta (1999) 21 Cal.4th 903, 907, 922.) Pursuant to Evidence Code
section 352, the court must consider factors such as relevance, similarity to the charged
offense, the certainty of commission, remoteness, and the likelihood of distracting or
inflaming the jury. (Falsetta, at p. 917.) We review a challenge to admission of prior
bad acts under section 352 for abuse of discretion and will reverse only if the trial court‟s
ruling was “ „arbitrary, whimsical, or capricious as a matter of law.‟ ” (People v. Branch
(2001) 91 Cal.App.4th 274, 282 (Branch).)

       Defendant objected to the prosecution‟s motion in limine to admit defendant‟s
2000 misdemeanor conviction for annoying and molesting a child. He claimed the
conviction was remote in time, highly prejudicial, involved different facts than the
present case, and it was disputed whether the touching in the prior case was consensual.

       The trial court found the prior offense was similar to the charged offense as both
involved sexual acts on a minor. While the prior conviction took place more than 10
years ago, defendant was remanded to custody for a parole violation in 2002 and a


                                              6
registration violation in 2007. Finally, noting the prior offense would be proven using
evidence of the prior conviction rather than an “unadjudicated incident,” the trial court
granted the prosecution‟s motion to admit the prior conviction.

       The trial court then pointed out to the prosecutor that defendant‟s prior conviction
from 2000 of violating former Penal Code section 261.5 was also admissible pursuant to
Evidence Code section 1108. The prosecutor asked to admit defendant‟s conviction for
that offense. Defense counsel had no additional comments, and the trial court granted the
prosecution‟s motion as to that offense as well.

       The parties later stipulated that defendant was convicted of violating sections
261.5, subdivision (c) and 647.6 on October 16, 2000. The stipulation did not waive
defendant‟s objection regarding the admissibility of the convictions.

       Defendant claims the crimes were too dissimilar in nature to the charged offense
to be relevant. In support of this claim, he notes the prior convictions stem from an
incident in which defendant, then 45 years old, was seen having intercourse with a
mentally disabled 16-year-old girl who had the mental capacity of a seven year old. The
victim was a friend and neighbor, and the incident took place on a school ground in the
open. According to defendant, an incident stemming from a sex act with a 16 year old
could not show that defendant was predisposed to commit the charged offense, lewd and
lascivious acts on a minor under the age of 14 (§ 288, subd. (a)), with a victim who was
“substantially younger” than the victim in the prior offenses. Defendant also asserts the
prior convictions were too remote, taking place more than 10 years before the charged
offense, and “raised the potential for undue prejudice to [defendant] exponentially” by
removing “any chance” he had of contesting the prior misconduct evidence involving
John and Jane No. 2.

       “The charged and uncharged crimes need not be sufficiently similar that evidence
of the latter would be admissible under Evidence Code section 1101, otherwise Evidence

                                             7
Code section 1108 would serve no purpose. It is enough the charged and uncharged
offenses are sex offenses as defined in section 1108.” (People v. Frazier (2001)
89 Cal.App.4th 30, 40-41, fn. omitted (Frazier).) Evidence of prior sex offenses has been
admitted under section 1108 despite an age difference in the victims. (People v.
Escudero (2010) 183 Cal.App.4th 302, 306, 311 [evidence of prior sexual assaults against
adult women admitted to prove propensity to commit lewd and lascivious acts against
young girl].) Both the prior and charged offenses involved sex with a minor and were
among the offenses listed in Evidence Code section 1108. (Evid. Code, § 1108, subd.
(d)(1)(A).) While the victim here in the prior offenses was 16, her mental age of seven
years was close to the mental age of the eight-year-old victim in the present case. The
age differential between the victims in the charged and uncharged offenses did not render
the uncharged offense evidence inadmissible.

       While the prior offenses occurred some 10 years before the offense at issue, “[n]o
specific time limits have been established for determining when an uncharged offense is
so remote as to be inadmissible. ” (Branch, supra, 91 Cal.App.4th at p. 284.) An offense
that occurred a little over 10 years ago is not something out of the “remote” past,
especially when defendant served a two-year prison sentence for the prior offenses, and
was returned to prison two additional times after his release. (Frazier, supra,
89 Cal.App.4th at p. 41 [sexual offenses occurring 15 or 16 years prior to the charged
offenses still probative and not too remote]; accord, People v. Waples (2000)
79 Cal.App.4th 1389, 1393-1395 [prior sexual offenses 18 to 25 years earlier still
probative].)

       Nor can the prior convictions be considered prejudicial within the context of
Evidence Code section 352. “ „The “prejudice” referred to in Evidence Code section 352
applies to evidence which uniquely tends to evoke an emotional bias against the
defendant as an individual and which has very little effect on the issues. In applying


                                             8
section 352, “prejudicial” is not synonymous with “damaging.” ‟ ” (People v. Karis
(1988) 46 Cal.3d 612, 638.) The prior convictions were presented to the jury sanitized of
their underlying facts. In light of the evidence regarding the charged offense as well as
the other Evidence Code section 1108 evidence, it is inconceivable that the jury could be
prejudiced by the mere existence of two prior convictions for sex offenses. It was not an
abuse of discretion to admit the prior convictions.

                         II. Lesser Included Offense Instruction

       Defendant next claims the trial court prejudicially erred in rejecting trial counsel‟s
request to instruct the jury on the lesser included offense of attempted lewd and
lascivious acts on a child.
                                   A. Evidence Presented
       “An instruction on a lesser included offense must be given only when the evidence
warrants such an instruction. [Citation.] To warrant such an instruction, there must be
substantial evidence of the lesser included offense, that is, „evidence from which a
rational trier of fact could find beyond a reasonable doubt‟ that the defendant committed
the lesser offense. [Citation.] Speculation is insufficient to require the giving of an
instruction on a lesser included offense. [Citations.] In addition, a lesser included
instruction need not be given when there is no evidence that the offense is less than that
charged.” (People v. Mendoza (2000) 24 Cal.4th 130, 174.)

       “[S]ection 288, subdivision (a), states [it is] a felony offense for any person who
„willfully and lewdly commits any lewd or lascivious act‟ on the body of a child under
the age of 14, „with the intent of arousing . . . the lust, passions, or sexual desires of that
person or the child.‟ Any touching of a child under the age of 14 violates this section,
even if the touching is outwardly innocuous and inoffensive, if it is accompanied by the
intent to arouse or gratify the sexual desires of either the perpetrator or the victim. ”
(People v. Lopez (1998) 19 Cal.4th 282, 289.) “An attempt to commit a lewd act upon a


                                                9
child requires both an intent to arouse, appeal to, or gratify „the lust, passions, or sexual
desires of [the defendant] or the child‟ [citations] „and . . . a direct if possibly ineffectual
step toward that goal—in other words, he attempted to violate section 288.‟ ” (People v.
Crabtree (2009) 169 Cal.App.4th 1293, 1322.)

       Defendant bases his claim on alleged inconsistencies between the cousin‟s
testimony and Jane‟s MDIC interview. According to the cousin‟s testimony, Jane woke
up crying and wanted to take the blankets and go on the floor, finally doing so after one
of her brothers told her to. In the MDIC interview, Jane first said that she fell off the
couch, but later claimed to have rolled off the couch in order to avoid defendant. From
this, defendant argues “the jury could have concluded that Jane, who was then eight years
old, was either mistaken or untruthful in parts of her interview.” He finds this argument
“especially true” in light of the fact that terms used by Jane to describe the sexual assault
to Regina and her mother—touching her “inappropriately” and “humping” her leg—were
not used by her in the MDIC interview. Given the alleged problems with Jane‟s
credibility, defendant claims “[s]ome jurors may have believed that under these
circumstances [defendant] had not touched Jane at all as she described.” He concludes,
“one or more jurors may have decided [defendant] had the requisite intent because of his
background, but had not actually touched her because of the inconsistencies between her
interview and the other evidence.”

       Defendant‟s argument takes a simple inconsistency between one witness‟s
testimony and the victim‟s MDIC interview regarding details of the night in question and
speculates that jurors would use this to reject the victim‟s statements that defendant
molested her. Such speculation is not substantial evidence warranting an instruction on a
lesser included offense. Defendant‟s premise also fails to support his conclusion. If a
juror rejected Jane‟s rendition as not credible, there remains no evidence for the juror to
find that defendant took an ineffectual act towards molesting her. Presuming, as


                                               10
defendant claims, a juror could infer an intent to molest on the basis of the uncharged
misconduct evidence alone, there is still no evidence that defendant took some ineffectual
act in accordance with that intent. Rather than finding defendant guilty of an attempted
violation of section 288, subdivision (a), a juror reasoning in accordance with defendant‟s
argument would find defendant not guilty of the charge.

       Under the evidence presented, defendant was either guilty or not guilty of the
charged offense. Since there was no evidence supporting the middle ground of an
attempted violation of section 288, subdivision (a), the trial court correctly rejected
defendant‟s request for instruction on attempt.
                              B. Duty to Instruct on Attempt
       Defendant also contends sections 663 and 1159 require a court to instruct sua
sponte on attempt in every case, regardless of the state of the evidence.

       Section 663 provides: “Any person may be convicted of an attempt to commit a
crime, although it appears on the trial that the crime intended or attempted was
perpetrated by such person in pursuance of such attempt, unless the court, in its
discretion, discharges the jury and directs the person to be tried for such crime.”

       Section 1159 provides: “The jury, or the judge if a jury trial is waived, may find
the defendant guilty of any offense, the commission of which is necessarily included in
that with which he is charged, or of an attempt to commit the offense.”

       We disagree with the premise of defendant‟s argument, that he has a right to be
convicted of attempt where the evidence shows the crime was completed. Sections 663
and 1159 only permit a jury‟s act of leniency to stand; they do not grant defendant any
right to such leniency. (Cf. People v. Baca (1996) 48 Cal.App.4th 1703, 1707-1708
[while jurors have power to nullify, a defendant has no right to instruction on jury
nullification]; see also In re Sylvester C. (2006) 137 Cal.App.4th 601, 610 [section 663
“designed to address the dilemma created when a defendant is charged only with an

                                             11
attempt but the evidence at trial shows his attempt succeeded rather than failed”].) The
rule in California is well established: A trial court must instruct sua sponte on a lesser
included offense, including attempt, only where there is substantial evidence that only the
lesser and not the greater offense was committed. (People v. Breverman (1998)
19 Cal.4th 142, 162.) As there was no substantial evidence of only an attempt, the trial
court did not err in failing to instruct on attempt.

                              III. Presence at Critical Stages

       Defendant‟s final claim is that he was deprived of his right to be present at all
critical stages of the prosecution. He is wrong.
                                       A. Background
       Towards the end of the evidence, after the jury was excused, the parties and the
trial court agreed to have the prosecutor draft a proposed stipulation regarding
defendant‟s prior convictions, with both counsel to discuss the matter and have
something for the court the following morning. The trial court directed counsel to appear
at 8:00 a.m. the following morning to discuss jury instructions. After noting defendant
may not arrive until 8:30 a.m., the trial court asked, “So the jury instructions, does he
want to be here when we discuss that, or do you want to waive his presence for that?”

       Defense counsel discussed the matter with defendant and told the court defendant
would waive his presence. Asked whether this was correct, defendant said to the court,
“Yes, sir.” The following morning, when defendant was not present, the attorneys told
the court they had a stipulation on the prior convictions.

       The following stipulation was entered by the trial court: “The Court is informing
the jury that the Defendant, Donald Albert Smith, was convicted of Penal Code Section
261.5(c), unlawful sexual intercourse with a minor, a felony, and Penal Code Section
647.6, annoying and molesting a child, a misdemeanor, on October 16th, 2000, in Placer



                                              12
County case No. 62-014538.” The stipulation was later read to the jury with no
objection.
                                          B. Analysis
          Under federal and state law, a defendant‟s personal presence is required if
necessary for effective cross-examination in a proceeding, or if the defendant‟s presence
would contribute to the fairness of a proceeding critical to the outcome of the trial, or if it
would reasonably bear a substantial relation to the fullness of his opportunity to defend
himself. (People v. Cole (2004) 33 Cal.4th 1158, 1231.)

          Defendant claims the discussion regarding his prior convictions was a critical
stage of the proceeding, and his waiver covered only his presence at the discussion on
jury instructions. He claims his presence was critical because “had he been present the
language of the stipulation likely would have been changed to indicate the age of the
victim and that there was but a single victim, thereby contributing to the fairness of the
trial.”

          The right of a defendant to be personally present does not extend to every court
proceeding. As the Supreme Court noted, “neither the state nor the federal Constitution,
nor the statutory requirement that a defendant be present at „all . . . proceedings‟ (§ 977,
subd. (b)(1)), provides a criminal defendant with the right to be personally present in
chambers or at bench discussions outside the jury‟s presence on questions of law or other
matters as to which his presence bears no reasonable, substantial relation to his
opportunity to defend the charges against him.” (People v. Harris (2008) 43 Cal.4th
1269, 1306, fn. omitted.) Defense counsel stipulated to the prior sexual misconduct
convictions for strategic reasons. As such, defendant could not have meaningfully
contributed to the stipulation, and his presence was not required. Even assuming his
waiver did not cover the stipulation, there was no violation of defendant‟s right to be
present at a critical stage of the prosecution.


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                                    DISPOSITION

     The judgment is affirmed.




                                                  BUTZ   , Acting P. J.



We concur:



             MURRAY              , J.



             HOCH                , J.




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