People v. Bradley, B198577 (Cal. App. 11/6/2008)

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THE PEOPLE, Plaintiff and Respondent, v. SEAN MICHAEL BRADLEY, Defendant and Appellant.

B198577

Court of Appeal of California, Second Appellate District, Division Two.

November 6, 2008

Not to be Published

Appeal from a judgment of the Superior Court of Los Angeles County, No. NA062766, Jessie I. Rodriguez, Judge. Affirmed with directions.

Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

DOI TODD, J.

A jury found Sean Michael Bradley (appellant) guilty of committing lewd conduct on a child under the age of 14 years, victim A. (Pen. Code, § 288, subd. (a).)¹ Appellant was sentenced to a negotiated eight-year term in state prison.²

Appellant makes evidentiary contentions that the trial court erroneously excluded: (1) evidence that on the night prior to the complaint, A. had persistently questioned witness Fife about homosexuality; (2) Fife's lay opinion testimony regarding the credibility of victims A. and B.; and (3) certain impeachment. Appellant also contends that (4) CALJIC No. 10.41 was argumentative; (5) the trial court limited appellant's final argument; (6) there was judicial misconduct; (7) there was prosecutorial misconduct; (8) the trial court committed cumulative error; and (9) the abstract of judgment fails to include the restitution fines.

The People assert (10) that the abstract of judgment must be corrected to include all of the trial court's orders of judgment.

We affirm the judgment and order the abstract of judgment be corrected as requested.

FACTS

Viewed in accordance with the usual rule of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11), the evidence established that A. and B. were twelve years old and best friends. On Monday September 4, 2004, the boys went with appellant, B.'s godfather, a man with whom B. had had a lifelong father-son relationship. They went to a yard sale and then to appellants' sailboat, which was moored in a Wilmington marina. At the yard sale, appellant purchased a gift for A., but not for B.

Appellant had arranged with the boys' mothers to take the boys on an outing. The plan was to spend the night on appellant's sailboat and then go sailing the following day. The boys were excited about the outing.

That afternoon, when they boarded appellant's sailboat, appellant had had B. help him count about $1,800 in cash that they then stashed in the sailboat's galley. A. walked into the galley just as B. finished counting the cash.

During the evening hours, appellant and the boys went to dinner with friends and then spent time socializing on the yacht moored next to appellant's sailboat. Todd Fife, the neighbor, had a laptop computer that the boys were using to access the Internet. The boys were playing games on the Internet and talking with Fife. At some point, appellant returned to his sailboat and went to bed. Fife's stewardess wife, Judith Sherwin, returned home late that night. She sat with Fife and the boys and had a glass of wine to unwind after work. Then she went to bed on the sailboat two boats down, next to appellant's.

Fife fell asleep about 2:00 a.m., and the boys returned to appellant's sailboat. Appellant was asleep in the front cabin. The boys fell asleep on the couches in the galley.

The following morning, appellant awoke, and the boys joined him in the forward sleeping cabin. B. left at appellant's request and rocked the boat from the outside. A. said that suddenly, appellant got an intimidating look on his face. He had A. get his penis out of his pants. Appellant orally copulated A. and then fondled his penis until A. ejaculated. A. became very upset. He left the cabin, found B., and told B. what had happened.

The boys went to Fife's yacht and told him what had happened. Fife let A. use the telephone to call his mother. The mother directed Fife to telephone the police. Fife had Sherwin join them, and they waited for the police to arrive. Thereafter, the officers searched the boat and found the cash the boys had mentioned when they told the officers what had happened. The officers also removed A.'s personal items from the sailboat. An officer drove A. to a location for a sexual examination, and B. accompanied them.

The sexual examination disclosed that appellant was the primary donor of the epithelial cells recovered from A.'s penis. The expert discounted that the transfer of cells could have occurred by a tertiary transfer.

Later, B. reported that appellant had committed one act of lewd conduct on him years earlier. He claimed that the incident had occurred when he was approximately ten years old near Christmastime at a cabin at Lake Arrowhead. B. claimed that appellant had rubbed his erect penis against B.'s buttocks when he, appellant, and appellant's sexual partner, Tom A., had spent the night at the cabin. (Appellant was a homosexual.)

In defense, appellant declined to testify.

Fife and Sherwin testified that while accessing the Internet the prior night, the boys had wanted Sherwin to let them use her credit card. The boys wanted the credit card to access a Web site that promised free prizes and a television. Sherwin refused. Sherwin also testified that it was apparent to her that A. or A. and B. wanted her to leave Fife's yacht so that the boys could speak to Fife alone without her overhearing their conversation. Also, while Fife, Sherwin, and the boys were waiting for the police the next day, A. insisted that Fife lure appellant off the sailboat so that A. could return there to retrieve the personal items he had brought with him for the overnight. Also, at some point, A. told Fife that he "deserved" some of the cash that appellant was keeping on his sailboat.³

Tom A. testified that he had never accompanied appellant and B. on any trip to a cabin in Lake Arrowhead. Tom A. said that he was totally unaware of any such trip and that as far as he knew, appellant had no access to a cabin at or near Lake Arrowhead.

It was stipulated that appellant's deceased father had testified in a prior judicial proceeding that Tom A. and appellant had visited him and his wife at approximately the same time as B. claimed that he had been molested.

The detective for the case testified that police had recovered approximately $1,900 in cash during a search of appellant's sailboat.

DISCUSSION

I. Exclusion of the Conversation About Homosexuality

Appellant contends that it was evidentiary and constitutional error to exclude Fife's testimony that on the night prior to the complaint, A. had persistently questioned Fife about homosexuality.

The contention lacks merit.

A. The Background

During an Evidence Code section 402 hearing, the prosecutor asked the trial court to preclude Fife from testifying that on the night prior to the complaint, A. had questioned Fife about homosexuality. She claimed that the evidence was irrelevant and unduly prejudicial. She explained that the boys were 12 years old, and thus, consent was not at issue. (See People v. Hillhouse (2003) 109 Cal.App.4th 1612, 1619-1620 [a victim's consent is irrelevant where the charge is a violation of section 288 lewd conduct].)

Appellant proffered Fife's testimony from the initial trial. During that trial, Fife had testified that while the boys were playing with the computer, A. had questioned him about "homosexual things." The questions appeared to annoy B., but A. was very curious. Apparently, after Sherwin arrived home, A. had wanted Sherwin to leave so that he could continue the conversation about homosexuality with Fife. When asked whether the questioning was persistent, Fife said that there was a question here and a question there. Fife explained that he did not have a problem talking to the boys about homosexuality, but he did not "feed" the conversation. He wanted to get beyond it and let the boys just have fun on the boat.

Trial counsel asserted that the testimony was relevant to show A.'s prior reflection, planning, motive, and bias; that is, the questioning proved that A. had a motive to fabricate and that A. had been acquiring information about homosexuality from Fife in order to fabricate the complaint the following morning. Trial counsel argued that the defense was that the boys had come up with the complaint in order to get the cash that appellant had left on the sailboat. The boys insisted to Fife that following morning that they had to return to the sailboat. The money was the whole reason for the "put-up job." The boys wanted to get that money "for what [appellant] did" to A.

The trial court inquired whether Fife had revealed the details of specific sexual activity that would have aided a fabrication. Trial counsel indicated that he did not know, but asserted that he assumed that Fife would so testify. Trial counsel said that he would have to ascertain the specifics of Fife's testimony before he testified and that trial counsel wanted to ask Fife about that.

The trial court asked whether the defense had anything further at this point. Trial counsel indicated that he could not add to the proffer. The trial court then ruled "without prejudice" that the proffer was irrelevant. It said that any probative value the conversation might have was outweighed by the probability that the testimony's admission would require an undue consumption of time, create a danger of undue prejudice, confuse the issues, and mislead the jury. It said the testimony was extremely prejudicial to the People's case.

B. The Analysis

On appeal, appellant asserts that A. was apparently aware of appellant's homosexuality, and the persistent questions about homosexuality were relevant. Appellant argues that because his defense was fabrication, any evidence having a tendency in reason to support the...