PEOPLE v. CONKLIN
THE PEOPLE, Plaintiff and Respondent,
STEVEN MICHAEL CONKLIN, Defendant and Appellant.
Court of Appeals of California, Second Appellate District, Division Three
November 12, 2009
Waldermar D. Halka, 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, Steven D. Matthews, Janet Neely and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
KLEIN, P. J.
Defendant and appellant, Steven Michael Conklin, appeals the judgment entered following his conviction, by jury trial, for violating the sex offender registration statute (3 counts), and for possession of child pornography by a person previously convicted of a sex offense, with prior prison term and prior serious felony conviction findings (Pen. Code §§ 290, 311.11, subd. (b), 667.5, 667, subd. (b)-(i)).[ 1 ] Conklin was sentenced to state prison for a term of 75 years to life.
The judgment is affirmed.
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), we find the evidence established the following.
1. The sex offender registration violations.
In 1993, Defendant Conklin was convicted of having committed a forcible lewd act on a child under the age of 14 (§ 288, subd. (b)) and sentenced to prison. As a sex offender, Conklin was required to register with the local police after he was released on parole. Upon his release in 2001, Conklin registered with the West Covina Police Department, listing an address on east Larkhill Drive as his residence. Conklin kept identifying the same address as his residence each year until June 2007.
On August 8, 2007,[ 2 ] Sergeant Dennis Patton, who was in charge of the West Covina Police Department's sex offender registration program, received a letter from Conklin dated August 2. The letter stated: "This letter is to notify you of my recent move out of California, as per requirement pursuant to section 290 of the California penal code. [¶] I will have left on 8-5-07, and in conclusion fulfilled my final obligation."
On September 11, after Conklin failed to submit his annual registration update as required by the sex offender registration statute (§ 290), Detective Tyler Kennedy went to the Larkhill Drive residence and spoke to Conklin's mother, Vivian Snelson. Kennedy asked Snelson if she had an address for Conklin. Snelson gave him an address and telephone number in Kiev, Ukraine. Records from American Airlines showed Conklin had purchased a round-trip ticket taking him from Los Angeles to the Ukraine on August 5, with a return flight to Los Angeles in early November.
On September 22, Ukrainian authorities and an FBI agent found Conklin at an apartment in Kiev, where he appeared to be living with his girlfriend, Oksana Yukhimchuk. Conklin was asked to voluntarily leave the country and he agreed. He apparently left the next day.
As a result of this evidence, Conklin was convicted for three different violations of the sex offender registration statute: count 1 — failing to register as a sex offender within five days of his birthday (§ 290, subd. (a)(1)(D)); count 2 — failing to inform authorities of an address change (§ 290, subd. (f)(1)(A)); and, count 3 — failing to inform authorities of a new address when learned (§ 290, subd. (f)(1)(B)).
2. Possession of child pornography.
At the beginning of 2007, Conklin was living at the Larkhill Drive house with his parents and his son Steven, who was about 25 years' old. Conklin's father died in April.
On March 12, Steven told police he had seen Conklin downloading child pornography onto a computer at the house. Steven also said computers from the house had been stored in Vivian Snelson's car because of the possibility the police might search the house. After talking to Steven, the police obtained and executed a search warrant. They found two computer towers and a laptop computer inside Snelson's car, and two more computers inside the house. They also found a receipt for "computer washing" software.
Two computer forensic experts testified they found apparent child pornography on one of the seized computers. The computer files containing this pornography had been created in January and February, 2007. Numerous videos that had been deleted from the hard drive had names indicative of child pornography. On the same hard drive, there were photographs and videos containing non-sexual, everyday images of Conklin. One of the experts opined Conklin had been the main user of this computer. The experts downloaded some of the images onto a CD disc.
Carol Berkowitz, a child pornography expert, confirmed that some of the images on the CD were pornographic. An FBI photograph examiner recognized some of the images as being from a child pornography collection known as the "Paraguay" series.
Timesheets from Steven's place of employment showed he had been at work when some of the child pornography was downloaded.
Conklin did not testify.
1. Count 1 must be reversed because section 290 is unconstitutionally vague.
2. Counts 2 and 3 must be reversed for insufficient evidence.
3. Counts 1, 2 and 3 must be reversed for instructional error.
4. Count 2 must be reversed for instructional error.
5. Evidence of Conklin's 1993 sexual assault should have been excluded.
6. There was cumulative error.
7. The punishment provisions of section 290 violate equal protection.
8. Conklin's sentence constituted cruel and unusual punishment.
9. The trial court committed sentencing error.
10. The abstract of judgment must be corrected.
1. As to count 1, the sex offender registration statute was not unconstitutionally vague.
Conklin contends his conviction for failing to register as a sex offender within five days of his birthday (count 1) must be reversed because section 290, former subdivision (a)(1)(D),[ 3 ] was unconstitutionally vague in that it failed to provide adequate notice of his registration responsibilities. This claim is meritless.
a. Legal principles.
"Both article I, section 7, of the California Constitution and the Fourteenth Amendment to the United States Constitution declare that no person shall be deprived of life, liberty or property without due process of law. It has been recognized for over 80 years that due process requires inter alia some level of definiteness in criminal statutes. [Citation.] Today it is established that due process requires a statute to be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt. [Citations.]" (Burg v. Municipal Court (1983) 35 Cal.3d 257, 269, fn. omitted.)
"As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. [Citations.] Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of vagueness doctrine `is not actual notice, but the other principal element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement.' [Citation.] Where the legislature fails to provide such minimal guidelines, a criminal statute may permit `a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.' [Citation.]" (Kolender v. Lawson (1983) 461 U.S. 352, 357-358, fn. omitted.)
Conklin was convicted in count 1 of having failed to register within five working days of his September 3 birthday.[ 4 ] Former subdivision (a)(1)(D) of section 290 provided, in relevant part: "Beginning on his or her first birthday following registration or change of address, the person shall be required to register annually, within five working days of his or her birthday, to update his or her registration . . . ."[ 5 ] Citing People v. Franklin (1999) 20 Cal.4th 249, Conklin contends this statutory language did not adequately put him on notice that the annual registration update had to be filed even though he moved to the Ukraine.
Conklin's reliance on Franklin is misplaced. "The court in Franklin addressed the very narrow, and different, question whether a registrant had a duty to notify California law enforcement authorities of his change of address when he moved from California to Texas prior to the effective date of an amendment to section 290, which now explicitly provides that the duty to notify of a change in address applies when a registrant moves to a new jurisdiction outside the state." (People v. Annin (2004) 117 Cal.App.4th 591, 604, fn. 11.) That is, Franklin was convicted of failing to notify authorities of an address change when he moved to Texas, not for failing to comply with the annual registration update. At that time, former section 290, subdivision (f) did not make it clear the duty to report an address change applied not only to persons who moved to another location within California, but also to persons who moved to another state. It was not until 1998 that section 290 was amended to specifically require notification of a change of address whenever a sex offender moved either within or outside of California. Franklin reversed the defendant's conviction because: "[G]iven the limited application of section 290, former subdivision (a)(1), to offenders `while residing in California,' its provisions were at least ambiguous regarding their application to persons, such as defendant, who move to another state. Certainly, a layperson such as defendant could reasonably assume that the 1995 version of the act did not apply to him once he left California." (People v. Franklin, supra, 20 Cal.4th 249 at p. 255.)
Hence, Franklin is inapposite to Conklin's situation for two reasons. First, because a subsequent amendment to section 290 cured the notice defect. Second, because Franklin involved the registration obligations of someone who had moved out of California. Conklin did not move out of California; he just went on a trip to visit his girlfriend in the Ukraine.
Conklin disputes this last point. He asserts "[i]t is beyond dispute [he] physically moved to Ukraine before his birthday in 2007. [His] letter to the West Covina Police Department . . . demonstrates his intent to relocate to that country and establish his residence there." (Italics added.) Not so. Despite Conklin's self-serving letter to the police department, which claimed he was moving out of California, the fact he purchased a round-trip ticket showed he intended to make only a limited visit, after which he would return to his home in West Covina. Hence, for the period of time Conklin was in the Ukraine he was maintaining dual residences. The sex offender registration statute provided Conklin with sufficient notice that, in these circumstances, he was required to provide the West Covina Police Department with an annual registration update.[ 6 ]
We conclude section section 290, former subdivision (a)(1)(D), adequately put Conklin on notice of his obligation to furnish the West Covina Police Department with an annual registration update in 2007.
2. Sufficient evidence of counts 2 and 3.
Conklin contends his convictions on counts 2 and 3 must be reversed for insufficient evidence. This claim is meritless.
a. Legal principles.
"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ` "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. ` "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment."' [Citations.]"' [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
In count 2, Conklin was convicted of violating former subdivision (f)(1)(A) of section 290, which provided: "Any person who was last registered at a residence address pursuant to this section who changes his or her residence address, whether within the jurisdiction in which he or she is currently registered or to a new jurisdiction inside or outside the state, shall, in person, within five working days of the move, inform the law enforcement agency or agencies with which he or she last registered of the move, the new address or transient location, if known, and any plans he or she has to return to California."[ 7 ] (Italics added.)
In count 3, Conklin was convicted of violating former subdivision (f)(1)(B) of section 290, which provided: "If the person does not know the new residence address or location at the time of the move, the registrant shall, in person, within five working days of the move, inform the last registering agency or agencies that he or she is moving. The person shall later notify the last registering agency or agencies, in writing, sent by certified or registered mail, of the new address or location within five working days of moving into the new residence address or location, whether temporary or permanent."
Conklin's argument that he did not violate these statutes directly contradicts the assertion made in connection with his void for vagueness claim, discussed ante, that he had moved to the Ukraine. Now Conklin claims he had no address change to report because there was insufficient evidence he moved to the Ukraine: "The People's evidence merely established that Conklin was apparently staying with his fiancée in an apartment in Kiev, Ukraine, on September 22, 2007, when the FBI agent met [him] at that residence. The prosecution did not present any evidence when Conklin moved into that residence or how long he had been staying there prior to September 22, 2007."
Of course, we agree there was no evidence Conklin moved to the Ukraine, but that is not the only event that qualifies as a change of address. At the time of Conklin's offense, former subdivision (a)(1)(C)(vii) of section 290 defined "residence" as "one or more addresses at which a person regularly resides, regardless of the number of days or nights spent there, such as a shelter or structure that can be located by a street address, including, but not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and recreational and other vehicles." (Italics added.) Although there was no direct evidence of when Conklin started staying at Oksana's apartment, there was plenty of circumstantial evidence. Conklin bought a plane ticket taking him to the Ukraine on August 7. When the police tried to find Conklin at his West Covina residence, his mother said he was at Oksana's apartment in Kiev. Subsequently, the FBI found Conklin at Oksana's apartment. The jury could have reasonably concluded that because Conklin traveled to the Ukraine in order to spend time with Oksana, that's precisely where he went after his plane landed. Former subdivisions (f)(1)(A) and (f)(1)(B) required Conklin to notify the West Covina Police Department of this address change. In addition, subdivision (f)(1)(A) required Conklin to notify the police department of his plan to return to California, as evidenced by his round-trip ticket.
Conklin complains there was no evidence negating the possibility he had first arrived at Oksana's apartment on the same day the FBI found him there. But Conklin did not present evidence showing he had gone anywhere else after he arrived in the Ukraine, and the prosecution was not obliged to disprove this kind of negative speculation. "[S]ex offenders often have a transitory lifestyle or deliberately attempt to keep their movements secret. Requiring a prosecutor to prove when the person moved — information uniquely within that individual's knowledge and control — would hinder or even foreclose many prosecutions under section 290(f)." (Wright v. Superior Court (1997) 15 Cal.4th 521, 529.)
There was sufficient evidence to support Conklin's convictions on count 2 and count 3.
3. Jury properly instructed on actual knowledge element for the registration counts.
Conklin contends counts 1, 2 and 3 must be reversed because the trial court failed to instruct the jury he had to actually know he was required to update his California sex offender registration if he had dual residences, one of which was in a foreign country. This claim is meritless.
a. Legal principles.
The actual knowledge element of section 290 was established by People v. Garcia (2001) 25 Cal.4th 744, where the defendant admitted he had never registered as a sex offender but argued he never knew he was supposed to register. The trial court "instructed the jury that to sustain a conviction under section 290, it had to find defendant `willfully failed to register . . . within 14 days of coming into [a] city.' (Italics added.) The trial court used the standard instruction . . . to define `willfully.' That instruction provides: `The word "willfully" when applied to the intent with which an act is done or omitted means with a purpose or willingness . . . to make the omission in question. The word "willfully" does not require any intent to violate the law . . . .' [Citation.] In a related instruction, the court advised the jury that `When the evidence shows that the person voluntarily did that which the law declares to be a crime, it is no defense that he did not know that the act was unlawful or that he believed it to be lawful." [Citation.]" (Id. at p. 751.)
Garcia held these instructions failed to require a sufficient mens rea: "In a case like this, involving a failure to act, we believe section 290 requires the defendant to actually know of the duty to act. . . . [A] sex offender is guilty of a felony only if he `willfully violates' the registration or notification provisions of section 290. [Citation.] The word `willfully' implies a `purpose or willingness' to make the omission. [Citation.] Logically one cannot purposefully fail to perform an act without knowing what act is required to be performed. . . . Accordingly, a violation of section 290 requires actual knowledge of the duty to register. A jury may infer knowledge from notice, but notice alone does not necessarily satisfy the willfulness requirement." (People v. Garcia, supra, 25 Cal.4th. at p. 752.) "We also conclude that the court erred in giving an `ignorance of the law is no excuse' instruction (CALJIC No. 4.36), which on its face would allow the jury to convict defendant of failing to register even if he were unaware of his obligation to do so." (Id. at p. 754.)
Conklin's jury was instructed: "A person may have multiple residences where he regularly resides. If a person resides in California, he must annually update his registration as set forth in these instructions even though he might simultaneously have a residence in another jurisdiction outside of California." Citing People v. Edgar (2002) 104 Cal.App.4th 210, Conklin argues this instruction violated Garcia. Edgar reversed a registration conviction because the jury was not told the defendant had to actually know he was required to register multiple residences. But Edgar is inapposite. The trial court there not only gave the same willfulness instruction the trial court gave in Garcia, but also told the jury "that violation of section 290 is a general intent crime and that `[g]eneral intent does not require an intent to violate the law.'" (Id. at p. 218.) Edgar held that, because of these defects, the instructions would let the jury convict even if it found the defendant had been unaware of his obligation to register.
The faulty aspects of the instructions given in Garcia and Edgar were not replicated in the instructions given here. There was no general intent instruction. There was no "ignorance of the law is no excuse" instruction. The jury was told "[t]he mental states required are included in the definition of the crimes set forth elsewhere in these instructions." For each count the jury was told it had to find Conklin "actually knew" he was required to register.
Conklin's jury was properly instructed on the actual knowledge requirement.
4. Jury was adequately informed of the willfulness requirement for count 2.
Conklin contends count 2 must be reversed because the trial court failed to properly instruct the jury on the element of willfulness. Although there was instructional error in count 2, the error was harmless.
The relevant portion of the instruction on count 2 required the jury to find:
"3. The defendant changed his residence address to any jurisdiction inside or outside of the State of California and
"4. The defendant actually knew he had a duty to inform the last registering agency in person of the new address within five working days of the move and
"5. The defendant failed to inform the last registering agency, in person, of his new residence address within five working days of the change of address.
"The term `willfully' as used in this instruction means intentionally." (Italics added.)
Conklin points out that, despite the italicized definition of "willfully," the instruction only required the jury to find he had "failed to inform the last registering agency of his new address," rather than that he had "willfully failed to inform" the agency. But as the Attorney General notes, this was obviously an oversight because the instructions for both count 1 and count 3 repeated the same willfulness definition after telling the jury it had to find Conklin "willfully failed to annually update his registration" (count 1), and "willfully failed to inform the last registering agency of the move" (count 3). As explained below, we agree with the Attorney General that, "considering the instructions in their entirety, there is no reasonable likelihood that the jury was confused or misled about the requirement that appellant's failure to register had to be willful."
b. Legal principles.
As we have pointed out, "`an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.'" (People v. Scott (2001) 91 Cal.App.4th 1197, 1210; see Neder v. United States (1999) 527 U.S. 1, 9, 18, [applying harmless error standard to instructional error omitting element of an offense]; People v. Avila (1995) 35 Cal.App.4th 642, 660-662 [failure to instruct on asportation element of aggravated kidnapping was harmless error]; see also People v. Catlin (2001) 26 Cal.4th 81, 154 [even if instruction had omitted element of special circumstance charge, given evidence presented any error would be harmless beyond reasonable doubt].)
"If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. [Citations.] `"`[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.'" [Citations.]'" (People v. Smithey (1999) 20 Cal.4th 936, 963-964.) An appellate court will examine the jury instructions as a whole, along with the attorneys' closing arguments to the jury, to determine if the instructions sufficiently conveyed the correct legal principles. (See People v. Kelly (1992) 1 Cal.4th 495, 524-527 [although trial court erroneously instructed jury it was legally possible to rape a dead body, it was not reasonably likely jury misunderstood correct law regarding felony murder and rape special circumstances given remaining instructions and attorneys' jury argument]; see also People v. Visciotti (1992) 2 Cal.4th 1, 58-59 [improper intent instructions were harmless error where closing arguments made jury aware specific intent to kill was element of attempted murder].)
During closing argument, both the prosecutor and defense counsel said that, in order to find Conklin guilty on count 2, the jury had to find he willfully failed to notify the West Covina Police Department of his address in the Ukraine.
The prosecutor told the jury one of the elements of count 2 was that Conklin "willfully failed to make that notification within five working days." Referring to the definition of willfulness, the prosecutor said: "Willfully means that you do it willingly or on purpose. It's not an accident. Willfully. And that applies to counts 1, 2 and 3 and that's defined there." Defense counsel told the jury: "We're talking about count 2. I want you to be clear on this. Count 2, the elements are he willfully failed to do something in person when he changed his address. Go over it a couple of times. Be sure you have it clear. But he's got to willfully do those things. If he thought, if he truly thought he was comporting himself to the law, he's not breaking the law. You have to find that he willfully knew that he had to do it . . . and he willfully intentionally did not do it."
In view of these comments by the attorneys, there is no reasonable likelihood the jury was confused by count 2's failure to include a willfulness element.
5. Evidence of Conklin's prior sexual assault was properly admitted.
Conklin contends all his convictions must be reversed because the trial court erroneously admitted evidence of his prior sexual assault conviction. This claim is meritless.
The jury heard evidence that in 1993 Conklin locked a six-year-old girl into his apartment and sexually assaulted her.[ 8 ] He took off her clothes and orally copulated her. He tried to make her perform oral sex on him, but she refused. He put his fingers inside her vagina and at one point threatened to kill her if she didn't stop crying. When the police came to Conklin's apartment, he hid the girl inside a kitchen cabinet and then inside a large box in a bedroom closet. He piled clothing and bedding on top of her, and she lost consciousness. When the police finally found the child, she was pale, had fluids coming from her mouth, and did not respond to verbal commands. Conklin was subsequently convicted of committing forcible lewd acts on a child under the age of 14 (§ 288, subd. (b)).
The trial court said it would admit this evidence because "the predominant reason" people possess child pornography "is probably because they have an unnatural sexual interest in kids. I think certainly a prior conviction for the same thing speaks for whether a person does or does not have that interest and that would go to who downloaded this stuff." The court noted there had been "some questioning at the preliminary hearing suggestive of the fact that [Conklin's son Steven] is around and . . . you sort of implied that [Steven] might have had a motive to do this himself . . . ."[ 9 ] The trial court concluded the evidence was "highly relevant on the issue of who had knowledge of [the child pornography], who possessed it. [¶] In other words . . . we do know one thing. One person in that house and apparently only one, as evidenced in the past, had an unnatural desire to have sex with a child. It's exactly the type of matter apparently depicted in these images or at least some of them."
Following his conviction, Conklin filed a new trial motion arguing the evidence of his prior offense should have been excluded. In denying the motion, the trial court again mentioned the third party culpability evidence: "And we do know . . . [Conklin's son] was intimately involved with trying to hide those computers from the police with the assistance of the mother who, apparently, tried to clean the hard drives. [¶] So we get into a real issue here. Who's got that child porn? Is it the young man? Is the mother trying to save him from incarceration, or is she trying to save Mr. Conklin from a life sentence? You know, one wonders. [¶] And the jury . . . really does need some evidentiary guidance. The only evidentiary guidance in the case is: who would have a proclivity to want to see that sort of stuff? And we know there's one man in the house and one only, as far as the evidence shows, that would be interested. His victim in the earlier case was a child of age six . . . . He performed acts upon her identical to some of the acts depicted in those horrible photographs the jury was subjected to, and I think that speaks as loudly as anything in the world could as to who in that household was the possessor, who had the proclivity to possess those items."
b. Legal principles.
Evidence Code section 1101, subdivision (a), provides that, in general, "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." But Evidence Code section 1108, subdivision (a), 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."[ 10 ]
Evidence Code section 1108 allows propensity evidence "to assure that the trier of fact would be made aware of the defendant's other sex offenses in evaluating the victim's and the defendant's credibility." (People v. Falsetta (1999) 21 Cal.4th 903, 911.) "By removing the restriction on character evidence in section 1101, section 1108 now `permit[s] the jury in sex offense . . . cases to consider evidence of prior offenses for any relevant purpose,' [citation] subject only to the prejudicial effect versus probative value weighing process required by section 352." (People v. Britt (2002) 104 Cal.App.4th 500, 505.)
Evidence Code section 1108 permits "`"consideration of the other sexual offenses as evidence of the defendant's disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense."' [Citation.]" (People v. Soto (1998) 64 Cal.App.4th 966, 984.) "[S]ection 1108 is modeled on rules 413 through 415 [of the Federal Rules of Evidence]. The state and federal evidentiary rules contain nearly identical language which permits the admission of evidence of the defendant's prior sexual acts in criminal trials for sexual molestation and child molestation."[ 11 ] (Id. at p. 982.) "The Historical and Statutory Notes contained in the annotations for section 1108 state the legislation was modeled after rules 413 through 415, and expressly adopts the principles of the particular federal rules to the framework of California law. [Citation.] The legislative history for section 1108 expressly relies on the legislative history of the federal rules for `"explanation concerning the background, rationale, and effect"' of section 1108. [Citation.]" (Id. at p. 987.)
c. Conklin's prior sex offense was relevant.
Conklin argues evidence of his 1993 sexual assault conviction was irrelevant because "[t]he real issue in dispute was whether [he] was the person who downloaded the child pornography onto the computers at his mother's residence. When offered to prove identity, the relevancy of a prior uncharged act depends on its similarity to the charged offense." He cites the rule that, when offered to prove identity, "`the uncharged crime must be highly similar to the charged offenses.' [Citation.] The similarity, considering the degree of similarity and the number of common marks, should amount to a signature." (People v. Catlin, supra, 26 Cal.4th at p. 111.)
Conklin is mistaken. "The flawed premise in [his] argument is that section 1101, subdivision (b)'s test for admissibility of prior uncharged offenses in a sex offense case survived the enactment of section 1108. It did not. `In enacting Evidence Code section 1108, the Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of Evidence Code section 1101.' [Citation.] When section 1108 swept away the general prohibition on character evidence set forth in section 1101, it rendered moot the exceptions to that prohibition created by section 1101, subdivision (b). Thus, in a sex crime prosecution, the `signature test' is no longer the yardstick for admission of uncharged sexual misconduct to prove identity." (People v. Britt, supra, 104 Cal.App.4th at pp. 505-506.)
Evidence showing Conklin had a propensity to be sexually interested in children was relevant to the question whether he was the person who downloaded the child pornography at his mother's house. It was relevant because of the strong nexus between pedophilia and child pornography, a nexus relied on by Osborne v. Ohio (1990) 495 U.S. 103, the decision establishing that a prohibition on possessing or viewing child pornography is constitutional. Osborne reasoned that "encouraging the destruction of these materials is . . . desirable because evidence suggests that pedophiles use child pornography to seduce other children into sexual activity." (Id. at p. 111, fn. omitted.) "The Attorney General's Commission on Pornography, for example, states: `Child pornography is often used as part of a method of seducing child victims. A child who is reluctant to engage in sexual activity with an adult or to pose for sexually explicit photos can sometimes be convinced by viewing other children having "fun" participating in the activity.' [Citations.]" (Ibid., fn. 7.)
Since Osborne, other courts have recognized this strong nexus between pedophilia and child pornography. (See People v. Memro (1995) 11 Cal.4th 786, 864-865 [possession of child pornography was evidence of defendant's intent to molest young boy]; United States v. Brand (2d Cir. 2006) 467 F.3d 179, 197, 198, fn. 18 [child pornography on defendant's computer was relevant to prove he intended to meet minor for sex "because [of] direct connection . . . between child pornography and pedophilia": "Congress has found that child pornography has a connection to an abnormal sexual interest in children and pedophilia"]; United States v. Byrd (5th Cir. 1994) 31 F.3d 1329, 1336, fn. 9, 1336: ["evidence of Byrd's pedophilic behavior was properly used to show his predisposition to order and receive child pornography through the mail" because, "[i]n addition to . . . the case law and expert testimony that links pedophilia to child pornography, we also note that common sense would indicate that a person who is sexually interested in children is likely to also be inclined, i.e., predisposed, to order and receive child pornography"]; United States v. Bentley (2007 N.D. Iowa) 475 F.Supp.2d 852, 858 [difference between prior sexual assaults of children, and current prosecution for possessing child pornography, "are not as great as they might seem at first glance" because "[t]he child pornographer, like the child rapist, displays a sexual interest in children"].)
The evidence of Conklin's 1993 sexual assault on a child was relevant, under Evidence Code section 1108, to prove he was the person who had downloaded the child pornography.
d. Trial court did not err under Evidence Code section 352.
"`[W]hen an objection to evidence is raised under Evidence Code section 352, the trial court is required to weigh the evidence's probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers "substantially outweigh" probative value, the objection must be overruled. [Citation.] On appeal, the ruling is reviewed for abuse of discretion.' [Citation.]" (People v. Jenkins (2000) 22 Cal.4th 900, 1008.) "`The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is . . . `prejudging a person or cause on the basis of extraneous factors. [Citation.]'" (People v. Zapien (1993) 4 Cal.4th 929, 958.) This prejudice "applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual . . . ." (People v. Karis (1988) 46 Cal.3d 612, 638.)
Conklin argues that, even if relevant, the probative value of his 1993 sexual assault of a six-year-old child was outweighed by the likely prejudicial effect caused by exposing the jury to such inflammatory evidence. We disagree. Certainly the evidence would have troubled the jury, but so would the child pornography graphically depicting adults molesting children. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405 [potential for prejudice was decreased where evidence "describing defendant's uncharged acts . . . was no stronger and no more inflammatory than the testimony concerning the charged offenses"].) Moreover, the inflammatory nature of Conklin's 1993 crime was somewhat mitigated by the fact the victim was now testifying as an adult. We have read her testimony; it was not particularly inflammatory. The trial court did not abuse its discretion by finding the evidence of Conklin's prior crime was no more inflammatory than the evidence he possessed child pornography. (See People v. Kipp (1988) 18 Cal.4th 349, 372 [risk of prejudice "was not unusually grave" where the prior "crimes were not significantly more inflammatory than the [current] crimes"]; People v. Yovanov (1999) 69 Cal.App.4th 392, 406 [evidence of prior child molestations was not highly inflammatory where "the evidence concerning the charged offenses was equally graphic"].)
Conklin also argues the probative value of this prior crime evidence was diminished because the incident was so remote, having been "committed about 14 years before the charged offenses." Longer periods of time have been held to be not too remote. (See People v. Branch (2001) 91 Cal.App.4th 274, 284 [30 years for Evidence Code section 1108]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [18-25 years for Evidence Code section 1108]; see also People v. Ing (1967) 65 Cal.2d 603, 612 [15 years in Evidence Code section 1101 context].) The trial court ruled the incident was not too remote because, although it happened in 1993, Conklin had been in prison until 2002 and he later committed five parole violations for which he spent further time incarcerated. In addition, the trial court properly noted that because the jurors knew Conklin had been sent to prison for the 1993 crime, they would not have felt compelled to find him guilty just to punish for the prior offense.
In sum, we do not find any abuse of discretion in the trial court's determination that under Evidence Code section 352 the probative value of this evidence was not substantially outweighed by the dangers of prejudice. (See People v. Jenkins, supra, 22 Cal.4th at p. 1008.)
6. There was no cumulative error.
Conklin contends the cumulative prejudicial effect of the various trial errors he has raised on appeal requires the reversal of his conviction. This claim is meritless.
We have found only a single error that was harmless, and it is clear Conklin's trial was fundamentally fair. (See People v. Jenkins, supra, 22 Cal.4th at p. 1056 ["Defendant contends the cumulative prejudicial effect of the various errors he has raised on appeal requires reversal of the guilt and penalty judgments. We have rejected his assignments of error, with limited exceptions in which we found the error to be nonprejudicial. Considered together, any errors were nonprejudicial. Contrary to defendant's contention, his trial was not fundamentally unfair, even if we consider the cumulative impact of the few errors that occurred"].)
7. No equal protection violation.
Conklin contends the punishment provisions of section 290 violate the equal protection clause because they discriminate against ex-felons as compared to ex-misdemeanants. This claim is meritless.
a. Legal principles.
"`The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.'" (In re Gary W. (1971) 5 Cal.3d 296, 303.) "In resolving equal protection issues, the United States Supreme Court has used three levels of analysis. Distinctions in statutes that involve suspect classifications or touch upon fundamental interests are subject to strict scrutiny, and can be sustained only if they are necessary to achieve a compelling state interest. Classifications based on gender are subject to an intermediate level of review. But most legislation is tested only to determine if the challenged classification bears a rational relationship to a legitimate state purpose. [Citations.]" (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200.) Under the rational relationship test, "`"`a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. [Citations.]'"'" (Id. at pp. 1200-1201, italics omitted.)
"`The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' [Citations.]" (People v. Hofsheier, supra, 37 Cal.4th at p. 1199.) "Under the equal protection clause, we do not inquire `whether persons are similarly situated for all purposes, but "whether they are similarly situated for purposes of the law challenged."' [Citations.]" (Id. at p. 1199-1200.) "If persons are not similarly situated for purposes of the law, an equal protection claim fails at the threshold." (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.)
Conklin makes the following equal protection claim: "[P]ersons who are required to register based on a prior felony conviction . . . are subject to felony punishment for a first time registration violation. (§ 290, subd. (g)(2).) However, first time registration offenders who are required to register based on a prior misdemeanor conviction are subject ony to misdemeanor punishment. (§ 290, subd. (g)(1).) Because both felons and misdemeanants are similarly situated with respect to the legitimate purpose of the sex registration law, the disparity in treatment violates equal protection . . . . [Fns. omitted.]"
But ex-felons and ex-misdemeanants are not similarly situated in this context. "`As this court consistently has reiterated: "The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. [Citation.]" [Citations.]'" (People v. Castellanos (1999) 21 Cal.4th 785, 796, italics added.) This statutory purpose justifies treating ex-felons differently from ex-misdemeanants because of the danger that ex-felons will commit more serious sexual crimes in the future if not subjected to police surveillance. (See In re Podesto (1976) 15 Cal.3d 921, 932-933 [bail statute (§ 1272) does not violate equal protection by granting convicted misdemeanants bail on appeal as matter of right, but only discretionary bail for convicted felons: "[T]he Legislature may . . . have determined that misdemeanants do not pose a danger to the community comparable to that of particular felons, and accordingly may have concluded that judges should not be accorded the discretion to deny bail in misdemeanor cases on such grounds"].)
Conklin cites People v. Hofsheier, supra, 37 Cal.4th 1185, which struck down, on equal protection grounds, a statute requiring mandatory sex offender registration for those committing voluntary oral copulation on a person under 18 (§ 288a, subd b)(1)), but not for those committing voluntary sexual intercourse with a minor (§ 261.5, subd. (c)). Hofsheier reasoned persons convicted of these two crimes were similarly situated because "[t]he only difference between the two offenses is the nature of the sexual act." (People v. Hofsheier, supra, at p. 1200.) Hofsheier went on to hold there was no rational explanation for this unequal treatment.[ 12 ] But the felony/misdemeanor distinction at issue here is fundamentally different because, almost by definition, felonies are more serious than misdemeanors. (See, e.g., People v. Haendiges (1983) 142 Cal.App.3d Supp. 9, 24 ["Any interpretation of California's statutory scheme of punishment which would lead to potential misdemeanor sentences, which are either clearly in excess, or proportionally in excess, of sentences for more serious offenses, might well deny a defendant so sentenced equal protection of the laws"].)
Two other cases relied on by Conklin are equally unhelpful. People v. Olivas (1976) 17 Cal.3d 236, involved disparate treatment between adults and juveniles who had engaged in the same conduct, and a statute that was more lenient to the adults than to the juveniles. "The question at issue is whether a misdemeanant between the ages of 16 and 21 may constitutionally be committed to the Youth Authority (Welf. & Inst. Code, § 1731.5) for a term potentially longer than the maximum jail term which might have been imposed for the same offense if committed by a person over the age of 21 years. [Citations.] We have concluded that the selective process which permits the extended incarceration of youthful misdemeanants constitutes a denial of equal protection of the law." (Id. at p. 239, fns. omitted, italics added.)
Newland v. Board of Governors (1977) 19 Cal.3d 705, involved disparate treatment between felonies and misdemeanors, but the statute irrationally preferred ex-felons over ex-misdemeanants. Newland, who was denied a community college teaching credential because he had been convicted of a misdemeanor sex offense, applied for a certificate of rehabilitation under section 4852.01. His application was denied because the statute limited rehabilitation certificates to convicted felons. "Because a misdemeanant is not eligible to petition for a certificate of rehabilitation, the 1976 amendment works the Kafka-like perverse effect of providing that a person convicted of a felony sex crime who applies for a certificate of rehabilitation and who is otherwise fit, can obtain certification to teach in the community college system but that an otherwise fit person, convicted of a misdemeanor sex crime, is forever barred. This statutory discrimination against misdemeanants can claim no rational relationship to the protective purpose of [Education Code] section 13220.16. . . .[ 13 ] The Legislature could not possibly or sensibly have concluded that misdemeanants, as opposed to felons, constitute a class of particularly incorrigible offenders who are beyond hope of rehabilitation." (Newland v. Board of Governors, supra, at p. 712.)
There was no equal protection violation here.
8. Sentence did not constitute cruel and unusual punishment.
Conklin contends his sentence of 75 years to life amounted to cruel and unusual punishment, under both the California and the United States Constitutions, both because his first registration violation was treated as a felony and because the violation triggered a Three Strikes sentence. This claim is meritless.
Conklin has not demonstrated his sentence was disproportionate to his crime or to his individual culpability, or excessive when compared to the punishment imposed for more serious offenses. (See People v. Dillon (1983) 34 Cal.3d 441, 477-482; In re Lynch (1972) 8 Cal.3d 410, 423-424.) Our Supreme Court has emphasized "the considerable burden a defendant must overcome in challenging a penalty as cruel or unusual. The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment. [Citations.] While these intrinsically legislative functions are circumscribed by the constitutional limits of article I, section 17, the validity of enactments will not be questioned `unless their unconstitutionality clearly, positively, and unmistakably appears.' [Citations.]" (People v. Wingo (1975) 14 Cal.3d 169, 174, fn. omitted.)
The length of Conklin's sentence alone does not warrant relief. (See Harmelin v. Michigan (1991) 501 U.S. 957 [mandatory LWOP sentence for possessing more than 650 grams of cocaine did not violate Eighth Amendment].) Conklin's sentence is meant to punish him for being a recidivist and he has compiled a substantial criminal record, including the following convictions: driving under the influence (2 counts), burglary, contributing to the delinquency of a minor, and possession for sale of a controlled substance (1989); being under the influence of a controlled substance (2 counts), and giving false identification to a peace officer (2 counts) (1990); inflicting corporal injury on a spouse (1992); driving under the influence, forcible lewd act on child, and attempted murder[ 14 ] (1993). Following his release from prison in 2002, Conklin violated parole five times.
Conklin cites People v. Carmony (2005) 127 Cal.App.4th 1066, which held a Three Strikes life term for violating section 290 constituted cruel and unusual punishment. But Carmony's registration offense was very different than Conklin's. Carmony registered his correct address with the police a month before his birthday, but then failed to update his registration with the same information when his birthday arrived. Because Carmony's information had not changed and his parole officer knew exactly where he was residing, the Court of Appeal characterized his offense as a harmless and merely technical violation which did not warrant a Three Strikes term of 25 years to life: "The stated purpose of the birthday registration requirement was (and still is) to `update' the existing registration information. [Citation.] [¶] Here, there was no new information to update and the state was aware of that fact. Accordingly, the requirement that defendant reregister within five days of his birthday served no stated or rational purpose of the registration law and posed no danger or harm to anyone. [¶] Because a 25-year recidivist sentence imposed solely for failure to provide duplicate registration information is grossly disproportionate to the offense, shocks the conscience of the court and offends notions of human dignity, it constitutes cruel and unusual punishment under both the state and federal Constitutions." (People v. Carmony, supra, at pp. 1072-1073.)
Conklin's case does not involve the failure to provide redundant registration information. Conklin left the jurisdiction without informing the authorities where he was going, effectively concealing his whereabouts. Hence, Carmony's situation was fundamentally different from Conklin's and is not persuasive authority for the claim Conklin's sentence constituted cruel and unusual punishment. (See People v. Poslof (2005) 126 Cal.App.4th 92, 109 [although defendant properly updated principal residence in Merced County, he failed to register newly purchased second home in San Bernardino County, and therefore his "27-years-to-life Three Strikes sentence does not qualify as cruel and unusual punishment due to his criminal history as a recidivist and child sex offender whom the jury found knowingly failed to register in violation of section 290"]; People v. Meeks (2004) 123 Cal.App.4th 695, 709 [same court that decided Carmony held 25 years-to-life Three Strikes term for defendant who simply stopped registering, although he moved several times, was not cruel and unusual: "Defendant's willingness to ignore his duty to register and thus ignore society's right to maintain some control over sexual offenders may seem `de minimis' to him but does not seem so to a society seeking to protect itself from sexual predators"].)
Conklin's sentence did not constitute cruel and unusual punishment.
9. Multiple and consecutive sentences were proper.
Conklin contends there was sentencing error which resulted in improper multiple and consecutive terms on counts 1 and 3. He argues the trial court violated both section 654 and the specific provisions of the Three Strikes law. This claim is meritless.
Conklin is incorrect as regards the application of section 654, the prohibition of multiple punishment for a single act or course of conduct. Section 654 had no application in this situation because it does not trump the Three Strikes statute. (See People v. Green (1996) 50 Cal.App.4th 1076, 1088 ["[T]he Three Strikes law applies even where other enhancements or punishment provisions also apply. Green's claim of improper dual use [under section 654] is therefore refuted by the words of the [Three Strikes] statute"]; People v. Hurtado (1996) 47 Cal.App.4th 805, 816 ["the three strikes law is not an enhancement and . . . the legislative intent behind the three strikes law is such that section 654 [is] inapplicable"]; People v. Purata (1996) 42 Cal.App.4th 489, 498 [trial court erred by not applying both Three Strikes and prior serious felony conviction enhancement under section 667, subdivision (a)(1), because "there was no dual use under section 654"].)
Conklin is also incorrect regarding the trial court's determination that consecutive terms were mandatory under the Three Strikes law. People v. Hendrix (1997) 16 Cal.4th 508, and People v. Deloza (1998) 18 Cal.4th 585, have clarified that consecutive sentences are mandatory under the Three Strikes law when a defendant is convicted of multiple current offenses which were not committed on the same occasion and did not arise out of the same set of operative facts. Conversely, if multiple current felonies were committed on the same occasion or arose from the same set of operative facts, the trial court has discretion to impose either consecutive or concurrent terms. (See § 667, subds. (c)(6) & (7).) Here, count 1, which charged Conklin with failing to register within five days of his birthday, was alleged to have occurred between September 3 and September 11. Count 3, which charged Conklin with failing to register his new address, was alleged to have occurred between August 5 and August 13.
Conklin argues consecutive terms were not mandated because "[a]ny violation of section 290 is a continuing offense." Not so. "[S]imply because the Legislature intended that a violation of section 290 be a continuing offense does not mean that a defendant cannot be convicted and punished for new and separate violations of section 290 as he continues to ignore the law." (People v. Meeks, supra, 123 Cal.App.4th at p. 702.) "Under section 290, a failure to register when one moves to a different residence is a continuing offense; a failure to register on the event of the defendant's birthday is a separate continuing offense. . . . Had the prosecution charged a separate offense for each day of defendant's failure to register when he changed his address, the defendant would then have been subjected improperly to multiple convictions for a single criminal act. Here however he was subjected to multiple convictions for multiple criminal acts. [¶] Defendant's separate convictions for failure to register upon a change of address and to register annually on his birthday are lawful. [Citation.]" (Id. at p. 703.) (Italics added.)
There was no sentencing error.
10. Correct abstract of judgment.
Conklin contends, and the Attorney General agrees, there are several errors in the abstract of judgment. The abstract erroneously reflects a conviction on count 1 for first degree murder (rather than for violating section 290), and concurrent sentences on counts 3 and 4 (rather than consecutive sentences). We will order these errors corrected. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [it is proper and important to correct errors and omissions in abstracts of judgment].)
The judgment is affirmed. The abstract of judgment is to be amended to correctly reflect a conviction for violating section 290 on count 1, and consecutive sentencing on counts 3 and 4. The clerk of the superior court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment.