People v. Graff (170 Cal. App. 4th 345, 2009)

Opinion

MANELLA, J.

Appellant Timothy Albert Graff contends his convictions on two counts of violation of Penal Code section 288, subdivision (c)(1) must be reversed because the jury was permitted to convict based on charges not established at the preliminary hearing. We agree and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

A. Complaint

In November 2006, a seven-count criminal complaint was filed against appellant. All seven counts alleged that appellant committed a lewd and lascivious act on a person who was 15 years old with the intent of “arousing, appealing to and gratifying” his “lust, passions, and sexual desires” within the meaning of section 288, subdivision (c)(1). None alleged a specific act.

Counts 2 through 7 identified the minor involved as “Victim l.” Count 2 alleged that the improper act occurred between November 17 and December 31, 2003. Count 3 alleged that the act occurred between January 1 and February 28, 2004. Count 4 alleged that the act occurred between March 1 and April 30, 2004. Count 5 alleged that the act occurred between May 1 and June 30, 2004. Count 6 alleged that the act occurred between July 1 and August 31, 2004. Count 7 alleged that the act occurred between September 1 and November 8, 2004.

B. Preliminary Hearing

The preliminary hearing took place in April 2007. The two alleged victims and Officer Joanne Yarbrough were the only witnesses.

Victim 1 was appellant’s adoptive daughter. Her birth date was November 9, 1988. She testified that the first time appellant made an improper suggestion to her was sometime in the summer of 2004, between the end of her ninth grade school year and the beginning of her 10th grade year, before she turned 16. She was alone in her bedroom. Appellant asked to see how she was developing. She showed appellant her breasts by lifting her shirt for a few seconds and he commented that she was “cute.” The second incident occurred in the fall of 2004, after Victim 1 entered 10th grade, just before she turned 16. Appellant came into her bedroom and asked to “see” her. She showed him her breasts for a few seconds by lifting her shirt. On both occasions, appellant offered her money. A third incident occurred shortly thereafter. This time, Victim 1 removed all her clothing. On this occasion she expected not money, but a free pass to do anything she wanted, which she referred to as “a pretty please.”

The fourth incident occurred when Victim 1 was in 10th grade, while she was in her bedroom. Appellant asked her to masturbate, which they both referred to as “girly business.” She touched her vaginal area over her clothing for approximately 15 seconds. The court asked if she could recall the date with more precision, but other than that it “probably” occurred before Christmas, she could not. On a fifth occasion, which also occurred during 10th grade, she masturbated with a pillow over her head. She testified that this incident also occurred before Christmas, probably in the fall; but again, she could not recall the date with more precision.

Although the complaint contained six counts pertaining to Victim 1, she described only the foregoing five incidents. At one point, the prosecutor prompted her about other possible incidents, asking whether there was a time appellant pulled a towel off her when she had just finishing showering, whether appellant ever forcibly removed her clothing, or whether there was another masturbation incident in which she was more fully unclothed. In each case, she stated she could not recall any such incident.

After hearing the evidence, the court noted that Victim l’s testimony encompassed only five incidents, rather than the six set forth in the complaint, and that only the dates in counts 6 and 7 of the complaint corresponded to any of the dates stated in her testimony. Moreover, the court found Victim l’s testimony too vague concerning the dates of the two masturbation incidents to constitute substantial evidence that the incidents occurred before she turned 16. Accordingly, the court (1) dismissed count 2; (2) amended the date of count 5 to allege the incident occurred between July 1 and November 1, 2004; (3) amended counts 3 and 4 to conform to the testimony concerning the dates of the two masturbation incidents and dismissed those counts. Counts 6 and 7 remained as originally alleged. The court expressly matched each remaining count with a specific incident from Victim l’s testimony: “I see count 6 as being the first display of [Victim l’s] breasts. Count 7 is the second display [of her breasts]. . . . I’m going to change the date [of count 5] to between July 1 of 2004 and November 1 of 2004. And that will be the count which corresponds to the testimony that [Victim 1] removed her clothes.”

C. Information

After the preliminary hearing, an information was filed conforming to the commissioner’s rulings. It charged appellant with three counts of committing a lewd and lascivious act on the person of Victim 1 within the meaning of section 288, subdivision (c)(1), numbered 5, 6, and 7: count 5 alleged the incident occurred between July 1 and November 30, 2004; count 6 alleged the incident occurred between July 1 and August 31, 2004; and count 7 alleged the incident occurred between September 1 and November 8, 2004. All three counts alleged that the victim was 15 years old at the time of the offense.

D. Pretrial Proceedings; Evidence of Uncharged Offenses

Prior to trial, defense counsel moved to exclude all evidence pertaining to appellant’s having watched Victim 1 masturbate, on the ground that the prejudicial effect outweighed any probative value. In making this request, counsel stated: “The complaint in the matter charged in counts 3 and 4 that [appellant] observed [Victim 1] masturbating. [][] At the preliminary hearing the commissioner found that there was insufficient evidence to sustain those counts. They were therefore dismissed. [][] Those counts are no longer in the case. The issue of masturbation is no longer in this case, and it ought to be excluded on relevance grounds. [][] But beyond that, it is excludable on [Evidence Code section] 352 grounds. The issue is, is it unduly prejudicial? Does it outweigh the probative value? And I submit it does given that the counts were dismissed. The probative value is nil and the potential prejudice is high.”

In response, the prosecutor began by conceding that the People were not proceeding on counts 3 and 4: “Counts 3 and 4 — 2, 3 and 4 we are not proceeding on.” She then argued that the commissioner’s preliminary hearing rulings did not “restrict [the People] in terms of our ability to introduce evidence that relates to the charges”; that there was “nothing in the complaint or the information that says anything about what the nature of the touching is”; and that “any evidence that has been turned over to the defense in preparation for this trial... is admissible to establish whether the charges are true.” She asserted that “[the evidence] turned over to the defense, is far more substantial than what was introduced at [the] preliminary hearing.” She further argued that the People were permitted to introduce evidence “to establish the intent or the motive of the defendant . . . and even if there are . . . previously dismissed additional offenses, the People are clearly under . . . Evidence Code [section] 1108, permitted to introduce evidence of other sex related acts, whether they are charged, uncharged, dismissed, [etc.]”

The court ruled that the evidence was admissible as indicative of motive or intent.

E. Trial

1. Opening Statements

In her opening statement, the prosecutor contended the evidence would show that appellant “consistently and habitually committed lewd acts upon the person of [Victim 1]” and committed “at least three lewd and lascivious acts upon the person of [Victim 1].” She did not specify the acts charged, but stated the evidence would show that appellant moved from requesting to see parts of the victims’ bodies to “teaching [Victim 1] to masturbate in his presence ... on multiple occasions.”

In his opening statement, defense counsel stated that with respect to Victim 1, appellant was charged in three counts with having viewed her breasts and body. Counsel informed the jury that appellant was not charged with “anything having to do with masturbation.”

2. Prosecution’s Case

Appellant and his wife were the adoptive parents of both victims. Prior to their adoption, the two were in foster care. When Victim 1 was 13 or 14 years old, the family moved to a larger house, where she had her own bedroom. Appellant began a nightly ritual of stopping by her bedroom after she had changed for bed. On one or two occasions, he told her to remove the bra she was in the habit of wearing under her pajamas and stayed in the room while she did this.

In 2003, when Victim 1 was 14, appellant directly asked to see her breasts for the first time. Initially, she said no, but appellant eventually persuaded her to expose her breasts, which she did by lifting her shirt. This happened multiple times during the period Victim 1 was in ninth grade (when she was from 14 to 15 years old), approximately once or twice a month. When she did it, appellant often said “how cute.” When she was reticent, appellant offered her money or privileges, such as permission to stay out late or go to a party.

In 2004, when Victim 1 was in the latter part of ninth grade or the beginning of 10th grade, appellant asked to see “all” of her when he was visiting her bedroom one night. At first, she said no, but she acquiesced when appellant offered her different privileges. She pulled her pants and underwear down below her knees while lying on her back and then turned over. This type of exposure happened approximately four times.

Another incident occurred in late 2003, when Victim 1 had finished a shower and wrapped herself in a towel. Appellant asked if he could “see” her. She refused. Appellant asked if she was “hiding anything” and pulled the towel off without her permission. She was 15 at the time.

In the early part of 10th grade, before Victim l’s 16th birthday, appellant asked her to masturbate or simulate masturbation. Initially, she refused. Again, appellant offered her privileges. One of the privileges they called a “pretty please,” which meant Victim 1 could ask permission to do something and appellant could not refuse. The first time the simulated masturbation occurred, Victim 1 put her hand on top of her clothing. She was 15 at the time. Appellant persuaded her to do it a second time with a pillow over her face and her pants pulled down. Victim 1 was unsure when the second masturbation incident occurred.

Just before she turned 18, Victim 1 confided in a number of people, including Victim 2, about her experiences with appellant. Victim 2 related a similar experience. Victim 1 said she was going to talk to the school counselor. Victim 2 tried to dissuade her because she feared returning to foster care. The two victims then spoke with Mrs. Graff, who expressed disbelief and went to speak with appellant privately. When she returned to speak with the victims, Mrs. Graff said she was sorry and seemed upset.

After speaking to her mother about what appellant had done, Victim 1 said she wanted to go live at a friend’s house. She packed some clothes and began to leave. Before she left, she had a discussion with appellant and Mrs. Graff about what had happened and the privileges she had received from appellant. Appellant said he was sorry and did not mean to hurt her. Appellant and Mrs. Graff also tried to dissuade her from talking to the school counselor. Appellant offered to move out. Victim 1 rejected that offer and went to live first with a friend and then with her boyfriend. She talked to the school counselor a few weeks later. Afterwards, she also spoke with Officer Yarbrough and a social worker, Lisa Alford.

Alford, the social worker, testified that she was called in to investigate the family in October 2006. When interviewed, Victim 1 reported that appellant gave her privileges for exposing her breasts and that she had done it multiple times after turning 14. Victim 1 also described the towel incident and said she had masturbated in front of appellant on three occasions. Mrs. Graff told Alford that she believed Victim 1, that appellant had admitted the accusations were true, and that she was going to ask appellant to leave their home. Appellant told Alford that he had asked to see both victims’ breasts in exchange for money, and had watched Victim 1 masturbate three times, the last time in the summer of 2005.

Officer Yarbrough also testified that she was called in to investigate in October 2006. Mrs. Graff told the officer she had come to believe Victim 1 after talking to Victim 2 and after appellant admitted the allegations. Mrs. Graff also told the officer she believed appellant had the right to view the victims’ bodies or watch them masturbate and it was not unhealthy. Mrs. Graff admitted she had discouraged the victims from talking to the authorities. Victim 1 told Officer Yarbrough that appellant offered her money and privileges for exposing her breasts, which she had done approximately five times, and that she had masturbated in front of him three times.

Mrs. Graff testified that she and appellant had had a discussion with Victim 1 about the accusations and that she did not believe Victim 1. She denied telling Officer Yarbrough or Alford that appellant had confessed to watching Victim 1 masturbate or asking both victims to reveal their breasts. She denied that appellant had ever acknowledged paying money or giving favors to the victims to view their bodies.

3. Defense Case

Appellant, testifying in his own behalf, admitted he had seen Victim l’s breasts or body on a total of three occasions. On the first occasion, she was in the ninth grade. Appellant noticed she had a hickey, a bruise and some red marks or scratches on her upper body and arms. He asked if he could take a closer look and she removed her top. On the second occasion, Victim 1 was in the 10th grade. Appellant asked to inspect her entire body to see if she was wearing a birth control patch. He was also concerned about the possibility she was cutting herself. On the third occasion, appellant noticed a bruise on Victim l’s left breast and asked to examine it. She pulled down her top and exposed her breast. None of the incidents involved pulling a towel from her, which he denied doing.

Appellant testified there were three masturbation or simulated masturbation incidents involving Victim 1. The first time occurred when she was 15 years old and in the ninth grade. She said she had “learned something . . . she had been doing to herself.” He asked what it was. She covered herself with a blanket for a few seconds and then put her head out and said “that’s what I do.” The next day, appellant asked her to clarify what she had been doing. She simulated masturbation by placing her hand on her vaginal area over her clothing. Later, after Victim 1 turned 16, appellant asked if she was still “taking care of herself.” She said she was, multiple times a day. He became “alarmed” and asked again what she was doing. As she had previously, she simulated masturbation over her clothing.

Appellant denied any of the incidents involved efforts to arouse himself. He denied ever offering money or privileges. He denied telling Alford or Mrs. Graff that he had offered money or privileges to the victims or that Victim l’s allegations were true. He said he had offered to leave home on the day he and Mrs. Graff were confronted by Victim 1 in order to reveal Victim l’s true intent, which was to move in with her boyfriend.

The defense also called Dr. Marshall Cherkas, a forensic psychiatrist, who evaluated accused sexual offenders. He administered a test to appellant. The results did not fit those of a typical sexual predator in that appellant did not score high for poor impulse control and had a zero score for sexual maladjustment. From this test, Dr. Cherkas concluded appellant had a low potential for sexual molestation. He explained that the test could not completely rule out a person’s potential for molestation or whether he or she had engaged in an abusive act on a particular occasion, only whether it was more or less likely.

4. Pertinent Instructions

The jury was instructed with the following version of CALCRIM No. 207: “It’s alleged that the crimes occurred between July 1, 2004 and November 30, 2004. Now the People are not required to prove that the crimes took place exactly within that time frame but only that they happened when the victim was 14 or 15 years of age.”

With respect to the elements of the crime, the jury was informed: “The defendant is charged with lewd or lascivious act[s] upon a child age 14 or 15 in counts 5, 6, and 7 sometime during the period when the victim was 14 or 15 years of age. [