Filed 6/13/14 P. v. Moore CA6

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038754
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1089656)

         v.

JOHN MOORE,

         Defendant and Appellant.



         Defendant John Moore was convicted by jury trial of 12 counts of lewd conduct
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on a child under 14 (Pen. Code, § 288, subd. (a)) and one count of possession of matter
depicting a minor engaged in sexual conduct (§ 311.11, subd. (a)). The jury also found
true the allegation that the lewd conduct counts had been committed against more than
one victim (§ 667.61, subds. (b), (c), (e)). The court imposed a prison sentence of 180
years to life consecutive to a two-year term.
         On appeal, defendant contends that (1) his right to due process was violated
because the lewd conduct counts were based solely on generic testimony, (2) the lewd
conduct convictions were improper because they were precluded by section 288.5, (3) his
right to a fair trial was violated by the use of support persons at trial without a showing of



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         Subsequent statutory references are to the Penal Code unless otherwise specified.
necessity, (4) the trial court prejudicially erred in admitting propensity evidence under
Evidence Code section 1108, and (5) the instruction on the propensity evidence violated
his constitutional rights. We find no merit to his contentions and affirm the judgment.


                                 I. Factual Background
       “Jane” and her mother lived with defendant for several years, during which Jane’s
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mother and defendant had three children together. When Jane was six or seven years
old, defendant began sexually molesting her. The first molestation occurred in Jane’s
mother’s bedroom in the house in which they were all living in San Jose. Jane’s mother
was never home when the molestations occurred. The molestations continued to occur at
least once a month during the three years they lived in San Jose. On each occasion,
defendant put his fingers in Jane’s vagina and orally copulated her. The molestations
continued at the same frequency when they moved to Tracy and even after defendant and
Jane’s mother separated and moved to different cities. The molestations stopped when
Jane was 12 or 13 years old. Jane did not tell her mother about the molestations at the
time because she did not want to hurt her mother or make her mother feel guilty. Jane’s
first disclosure of the molestations was to a friend when Jane was 18 years old. When
Jane was 21 years old, she told her mother about the molestations. Jane never told her
cousin “Susan” about the molestations.
       Susan, who is a year younger than Jane, spent a lot of time with Jane’s family.
When Susan was 10 years old and visiting Jane in Tracy, defendant sexually molested
Susan in defendant’s home office. Susan was sitting on the floor playing a computer
game, and defendant was kneeling beside her. Defendant put his hands underneath her
clothing and touched her chest and between her legs. He molested her at least 10 times in


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       Throughout this opinion, we will use pseudonyms to protect the privacy of the
victims.

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his home office. Defendant also once molested Susan on the floor of the living room of
Jane’s mother’s home in Tracy. Susan was there for a sleepover with Jane and some of
Jane’s friends. Susan awakened to find defendant under her blanket. He put his hands
and mouth on the outside of her vagina. It was dark and everyone else was asleep. One
time, defendant molested Susan in a bedroom of the Tracy house. On three other
occasions, defendant molested Susan in his bedroom at his house in another town after he
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had separated from Jane’s mother. Those times, defendant touched her chest and put his
mouth on her. He continued to molest Susan until she was 13 years old. He told her
several times that she would get in trouble if she told anyone about the molestations.
Susan never told anyone about the molestations until a San Jose police detective
contacted her in 2012.
       In 2010, defendant was living in San Jose and renting out part of his home. In
April 2010, a woman and her two daughters began renting a bedroom and bathroom in
defendant’s home. In early May 2010, the power was shut off to the house due to
nonpayment of the bill. That night, the woman and her husband went into the house to
collect some things so that she and her daughters could stay elsewhere while the power
was out. Her husband noticed something unusual in the ceiling of the bathroom and
shone his flashlight on it. He saw what appeared to be a camera concealed in a fixture.
The husband pulled the fixture down and discovered that it contained a hidden camera.
He put the fixture back in the ceiling. A few days later, the woman and her husband
returned to the house to pack the rest of her things so she could move out. Her husband
brought equipment so that he could determine what the hidden camera was doing. He
hooked up the equipment to the television in the bedroom and immediately saw an image
of the bedroom, indicating that there was also a hidden camera in the bedroom. The
woman immediately contacted the police.

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       Defendant testified that Susan never came to his home after he left Tracy.

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       The police obtained a search warrant and searched defendant’s home. They found
a hidden camera in the vent in the bathroom and another one in the cable box in the
bedroom. The police seized a laptop computer and an external hard drive from
defendant’s desk. On defendant’s laptop computer, the police found more than 100
videos from the hidden cameras. These videos included ones of a former tenant’s young
daughter dressing and undressing in the bedroom and using the bathroom. The hidden
camera in the bedroom had also captured video of that young girl’s friend having sex
with the friend’s boyfriend. Another video on defendant’s laptop computer showed
defendant undressing a friend’s two-year-old daughter and displaying the little girl’s
vagina and anus to the camera. Defendant had taken this video in March 2010 when he
was taking care of the little girl for a day. Defendant’s laptop computer also contained a
trove of child pornography, 88 videos and six images, in a folder called “Zeno” on the
laptop’s hard drive. Zeno is defendant’s middle name. The children in the videos and
images were all under 13 years old and as young as one year old. These videos included
one in which an adult male committed multiple sex acts on a young girl. The external
hard drive found on defendant’s desk contained more child pornography, 120 videos and
191 images.
       While defendant’s home was being searched by the police, defendant arrived
home, briefly spoke to a police officer, and then left again. A couple of days after the
search, the police obtained a warrant for defendant’s arrest, but they could not locate him.
A day after the police obtained the warrant, a U-Haul truck pulled up to defendant’s
home, and several men began loading the contents of the home into the truck. The police
discovered that defendant’s girlfriend had been in contact with someone at the e-mail
address “beonlam@gmail.com.” That e-mail address had been created on the day that the
arrest warrant issued. The day after the arrest warrant issued, defendant withdrew over
$10,000 from his bank account.



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       The police sought information about defendant’s whereabouts from his friends,
and this led the police to defendant’s former girlfriend, Jane’s mother. The police
contacted Jane, and she identified Susan as a possible victim of defendant. The police
eventually tracked defendant’s cell phone calls to Seattle, Washington. In October 2010,
defendant was arrested in Seattle.


                              II. Procedural Background
       The lewd conduct counts pertained to Jane and Susan. The possession count was
based on the videos and images that defendant had not created himself, not the videos
from the hidden cameras or the video of defendant and the two-year-old. Defendant’s
niece “Mary” testified that defendant had molested her beginning when she was six years
old in 1987. Defendant would come into Mary’s room, lie down in her bed, make her
touch him, and have sex with her. He would touch her chest under her clothes, put his
finger inside of her vagina, and then put his penis in her vagina. These molestations
began when Mary was living in Fresno and occurred at least twice a month. There were
at least five events in Fresno. The molestations continued at the same frequency when
she moved to San Jose. Mary reported the molestations to her mother, but her mother did
not believe her. In May 1992, when Mary was 11 years old, in fourth grade, and living in
Richmond, she told her teacher that defendant had molested her, and the police were
notified.
       Defendant testified at trial that he had never molested Jane, Susan, or Mary. He
claimed that Jane’s mother was “behind this whole thing.” Defendant did not deny
making the video of the two-year-old, but he claimed that it was part of a longer video
that was completely innocent. Defendant testified that none of the child pornography
videos or images found on his laptop computer had been placed there by him. He could
not explain how those images and videos came to be there. Defendant admitted that he
had “porn” on his computer, but he maintained that it was limited to adults. He claimed

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that he had no knowledge of the existence of the hidden cameras or the hidden camera
videos, and his tenant and her husband must have created those to frame him
notwithstanding the fact that those videos were made before this tenant moved into
defendant’s home. Defendant claimed that his May 2010 tenant’s husband had somehow
known the prior tenants and helped them move in.
      The jury returned guilty verdicts on all charged counts and found the multiple
victims allegation true. The jury’s verdicts expressly found that four of the lewd conduct
counts were committed against Jane when she was eight years old and four of them were
committed against Jane when she was nine years old. The jury’s verdicts also expressly
found that defendant had committed lewd conduct on Susan at four different locations.


                                      III. Discussion
                                 A. Generic Testimony
      Defendant asserts that his due process rights were violated because the lewd
conduct counts were supported solely by “generic testimony.” He acknowledges that this
contention was rejected by the California Supreme Court in People v. Jones (1990) 51
Cal.3d 294 (Jones). In Jones, the California Supreme Court held that generic testimony
may form the sole basis for a child molestation prosecution without violating a
defendant’s due process rights. (Jones, at pp. 318, 320-321.) We are bound by Jones.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Therefore, we
must reject defendant’s contention.


                                      B. Section 288.5
      Defendant claims that the prosecution was precluded from prosecuting him for 12
counts of violating section 288 (lewd conduct on a child under 14) and was instead
limited to prosecuting him for two counts of violating section 288.5 (continuous sexual



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abuse of a child under 14). He maintains that section 288.5 is a “specific statute” that
prevails over section 288, which he identifies as a “general statute.”
       “ ‘It is the general rule that where the general statute standing alone would include
the same matter as the special act, and thus conflict with it, the special act will be
considered as an exception to the general statute whether it was passed before or after
such general enactment.’ ” (In re Williamson (1954) 43 Cal.2d 651, 654; In re Shull
(1944) 23 Cal.2d 745, 750.) This rule has become known as the Williamson rule.
(People v. Jenkins (1980) 28 Cal.3d 494, 502 (Jenkins).) When the Williamson rule
applies, the special statute precludes prosecution under the general statute. (Jenkins, at
p. 505.)
       Defendant contends that the Williamson rule applies here, and section 288.5
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precludes prosecution under section 288. “The doctrine that a specific statute precludes
any prosecution under a general statute is a rule designed to ascertain and carry out
legislative intent.” (Jenkins, supra, 28 Cal.3d at p. 505.) “The [Williamson] rule is not
one of constitutional or statutory mandate, but serves as an aid to judicial interpretation
when two statutes conflict.” (People v. Walker (2002) 29 Cal.4th 577, 586.) Here, the
two statutes do not actually “conflict” but are complementary. The Legislature’s intent in
enacting section 288.5 was expressly not to preclude prosecutions under section 288.
Section 288.5 was enacted in 1989 to provide “additional statutory protection” for
children. (Stats. 1989, ch. 1402, § 1, italics added.) Section 288.5 was explicitly
intended to operate in concert with section 288, which was amended in the same act that
enacted section 288.5. (Stats. 1989, ch. 1402, § 3 [amendment of section 288], § 4


4
       He acknowledges that this contention was rejected by the Fifth District Court of
Appeal in People v. Hord (1993) 15 Cal.App.4th 711 (Hord) and by the Second District
Court of Appeal in People v. Johnson (1995) 40 Cal.App.4th 24 (Johnson). (Hord, at
p. 720; Johnson, at p. 26.)



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[enactment of section 288.5].) This is clear from the text of both the original and current
versions of section 288.5. As originally enacted, section 288.5 provided: “No other
felony sex offense involving the same victim may be charged in the same proceeding
with a charge under this section unless the other charged offense occurred outside the
time period charged under this section or the other offense is charged in the alternative.”
(Former § 288.5, subd. (c), italics added; Stats. 1989, ch. 1402, § 4.) This provision
remains substantively unchanged in the current version of section 288.5. (§ 288.5,
subd. (c).) Hence, the Legislature explicitly provided in the text of section 288.5 that
section 288.5 did not displace other sex offense charges but provided an alternative that
could be pursued even in tandem with section 288 charges.
       The Legislature’s intent could not be clearer. Because the Legislature expressly
stated its intent, the Williamson rule, which is simply an aid to determining the
Legislature’s intent, is inapplicable, and defendant’s contention cannot succeed.


                                   C. Support Persons
       Defendant claims that his confrontation and due process rights were violated when
the trial court permitted two prosecution witnesses to testify with support persons without
holding a hearing to determine whether support persons were needed.
       The prosecution asked the court in limine for permission to use support persons.
Defendant did not object or ask that a hearing be held, and the court granted the request.
When the woman whose husband had discovered the hidden cameras was called to
testify, the prosecutor said: “Your Honor, [this witness] has an advocate with her as a
support person. Her name is [the support person]. I have advised both the witness and
[the support person] that they are not to communicate in any way during the witness’s
testimony. They are not to look at each other, touch each other, say anything to each
other.” The court told the jury that “the law allows persons in this situation to have a
support person for moral support.” Defendant did not object to the presence of the

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support person, and his cross-examination of this witness was very brief. When Mary
was called to testify, the prosecutor stated: “Your Honor, for the record, [Mary] is going
to be accompanied by a support person from the YWCA. This is [the support person].
Both [Mary] and [the support person] have been advised that they are not to communicate
in any fashion during [Mary]’s testimony.” Defendant’s trial counsel did not object to
the use of a support person and chose not to cross-examine Mary.
       Section 868.5 authorizes the use of a support person in a case such as this one.
“[A] prosecuting witness in a case involving a violation or attempted violation of
Section . . . 288 . . . shall be entitled, for support, to the attendance of up to two persons
of his or her own choosing . . . during the testimony of the prosecuting witness. Only one
of those support persons may accompany the witness to the witness stand . . . .” (Former
§ 868.5, subd. (a).) Although the statute does not explicitly require that a showing of
necessity be made, this court held in People v. Adams (1993) 19 Cal.App.4th 412
(Adams) that such a showing is required. (Adams, at p. 444.) In Adams, the defense had
objected to the use of a support person, and the court had overruled the objection without
any showing or finding of necessity. (Adams, at p. 434.) This court held that the absence
of a showing was harmless beyond a reasonable doubt. (Adams, at p. 444.) In People v.
Lord (1994) 30 Cal.App.4th 1718 (Lord), the First District Court of Appeal held that the
issue of the propriety of the use of a support person without a hearing was not preserved
for appeal because the defense had not objected to the use of a support person or sought a
hearing at trial. (Lord, at p. 1722.)
       Defendant claims that no objection was necessary in the trial court because he is
challenging the constitutionality of section 868.5. Not so. While defendant attempts to
characterize his claim as one that section 868.5 is unconstitutional because the statute
does not explicitly require a showing of necessity in all cases, Adams, which was binding
on the trial court, held nearly 20 years prior to defendant’s trial that a showing of
necessity was required. Thus, defendant’s claim is not that the statute is unconstitutional

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but that the trial court did not comply with the statute as construed in Adams.
Defendant’s reliance on Lord is inapt as he is making precisely the same challenge that
the Lord court found to be forfeited. (See Lord, supra, 30 Cal.App.4th at p. 1722, fn. 2.)
The wording of his claim does not change its nature. The contention that defendant is
making in this appeal is not that the constitution prohibits all use of support persons but
that the trial court did not require that a showing of necessity be made. An objection to
the lack of a showing of necessity would have triggered the prosecution to attempt to
make the necessary showing. A successful showing would have justified the use of
support persons under section 868.5 and would not have been vulnerable to the challenge
that defendant is making on appeal. Had the prosecution failed to make the necessary
showing, the trial court would have precluded the use of support persons. Since the
alleged error could have been prevented by a timely objection, defendant’s failure to
object forfeited this contention.


      D. Admission of Propensity Evidence Under Evidence Code Section 1108
       Defendant challenges the constitutionality of Evidence Code section 1108. He
objected in limine on foundational and credibility grounds to the admission of Mary’s
testimony under Evidence Code section 1108. The court overruled defendant’s objection.
Defendant also objected to the admission of evidence about the hidden camera videos and
the video of the two-year-old on the grounds that these videos did not qualify for
admission under Evidence Code sections 1101, subdivision (b) or 1108. He also sought
the exclusion of these videos on Evidence Code section 352 grounds. The court
overruled his objections.
       Defendant does not renew those objections on appeal. His sole contention on
appeal is that Evidence Code section 1108 violates his right to due process under the
United States Constitution. Defendant acknowledges that the California Supreme Court
rejected this contention in People v. Falsetta (1999) 21 Cal.4th 903. We are bound by

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Falsetta, so we must reject defendant’s contention. (Auto Equity Sales, Inc. v. Superior
Court, supra, 57 Cal.2d at p. 455.)


                         E. Instruction on Propensity Evidence
       Defendant also challenges the propriety of the trial court’s instruction to the jury
regarding the propensity evidence.
       The jury was instructed that the lewd acts on Mary, the hidden camera videos, and
the video of the two-year-old were uncharged. The instructions told the jury that it “may
consider this evidence only if the People have proved by a preponderance of the evidence
that the defendant, in fact, committed the uncharged crimes.” “If you decide the
defendant committed the uncharged offenses you may, but are not required to, conclude
from that evidence that the defendant was disposed or inclined to commit sexual offenses,
and based on that decision, also conclude that the defendant was likely to commit and did
commit possession of child pornography and/or child molestation as charged here in
Counts 1 through 13. [¶] If you conclude that the defendant committed the uncharged
offenses, that conclusion is only one factor to consider along with all the other evidence.
It is not sufficient by itself to prove the defendant is guilty of the charged crimes in
counts 1 through 13. The People must still prove each charge and allegation beyond a
reasonable doubt.” Defendant did not object to these instructions or ask that they be
modified.
       Defendant argues that this instruction was unconstitutional because it permitted
the jury to infer guilt from disposition and lowered the prosecution’s burden of proof by
permitting the jury to utilize the uncharged acts based on finding them true by a
preponderance of the evidence. Defendant acknowledges that the California Supreme
Court upheld the validity of a prior version of this instruction in People v. Reliford (2003)
29 Cal.4th 1007 (Reliford). The Reliford court held that the instruction properly told the
jury that it could infer guilt from disposition because this was a “legitimate inference.”

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(Reliford, at p. 1013.) The court also held that the instruction properly told the jury to
apply a preponderance of the evidence standard to the uncharged acts and would not have
misled the jury to believe that this standard displaced the beyond-a-reasonable-doubt
standard that applied to the charged offenses. (Reliford, at p. 1016.) There is no material
difference between the instruction in Reliford and the one given here. (People v. Cromp
(2007) 153 Cal.App.4th 476, 480.) We are bound by Reliford, and we therefore reject
defendant’s challenges to this instruction. (Auto Equity Sales, Inc. v. Superior Court,
supra, 57 Cal.2d at p. 455.)


                                      IV. Disposition
       The judgment is affirmed.




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                                _______________________________
                                Mihara, J.



WE CONCUR:




_____________________________
Elia, Acting P. J.




_____________________________
Grover, J.




People v. Moore
H038754


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