People v. Eckhardt CA3 ( 2020 )

Filed 12/16/20 P. v. Eckhardt CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(El Dorado)
----
THE PEOPLE, C089916
Plaintiff and Respondent, (Super. Ct. No. P17CRF0174)
v.
CHARLES LEE ECKHARDT,
Defendant and Appellant.
Defendant Charles Lee Eckhardt was convicted of six counts of lewd acts on a
child and two counts of oral copulation of a child. On appeal, defendant contends:
(1) the trial court prejudicially erred by admitting evidence of a prior conviction, and
(2) defendant received ineffective assistance of counsel because defense counsel failed to
object when the trial court sentenced defendant to consecutive sentences. We will affirm
the judgment, but direct correction of a clerical error in the abstract of judgment.
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FACTUAL AND PROCEDURAL BACKGROUND
Defendant’s Prior Conviction
When defendant was 17 years old, he began dating the victim’s mother (the
mother); the mother was then 13 years old. The mother and defendant had sex after
defendant turned 18, and the mother became pregnant with the victim when the mother
was 14 years old. Based on this relationship with the mother, defendant was convicted
for having unlawful sexual intercourse with a minor. (Pen. Code, § 261.5, subd. (c).)1
The two continued their relationship and eventually were married.
People’s Case
At the time of the crimes at issue in this case, defendant and the mother lived
together with the victim, the victim’s sister, and the victim’s half-brother. Defendant
worked seasonally as a roofer and the mother worked during the day.
When the victim was approximately 10 years old, defendant sexually abused her
over a six- or seven-month period while the mother was at work. Defendant was
approximately 30 years old at this time. In one incident, the victim was taking a shower
when defendant came into the shower with her. He touched her genitals with his mouth
and hands. This happened on four or five separate occasions. In one instance, the victim
was taking a bath with defendant when he pushed her mouth down onto his penis. He
also tried to put his penis into her vagina. In another instance, defendant placed the
victim’s hand on his erect penis while in the shower. He did the same in a different
incident in his bed.
In a separate incident, the victim was sleeping on the couch and woke up to
defendant rubbing his groin against her back. He removed the victim’s pants and tried to
put his penis in her vagina.
1 Undesignated statutory references are to the Penal Code.
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In another incident, the victim was in the basement. Defendant pushed her against
a wall and rubbed his hands all over her body before removing her pants and trying to
have sex with her. Defendant stopped when he heard the mother arriving home from
work.
At some point, the mother walked in on defendant washing the victim’s hair in the
shower. She noticed defendant had an erection and confronted him. The mother told
defendant he could not get in the shower with the victim anymore. The next day,
however, she arrived home and again found him in the shower with the victim. She told
the victim to get out of the shower and asked her if defendant had touched her. The
victim said no, because defendant had told her not to tell anyone about his conduct.
Shortly thereafter, the mother moved out of the house with the victim because of the
shower incidents and because of other relationship problems with defendant. Defendant
and the mother shared parenting time with the children.
Some time later, the victim’s grades began to suffer. When the mother asked her
about the grades, the victim admitted defendant had “touched” or “hurt” her, but did not
want to elaborate. The victim did not want to make defendant angry by telling her
mother everything.
When the victim was a senior in high school, she had moved in with her boyfriend
and her boyfriend’s mother. The victim confided to her boyfriend about the sexual abuse.
She then told her boyfriend’s mother, and later reported the abuse to law enforcement,
although she omitted some details in her initial conversations with them.
During the ensuing investigation, the victim participated in a pretextual call to
defendant, a recording of which was played for the jury and admitted into evidence.
Defendant did not admit sexually abusing the victim during the call, but acknowledged he
had “done some fucked up things.”
The prosecution introduced expert testimony from Dr. Anthony Urquiza, a
professor and psychologist. Dr. Urquiza testified about reasons a child sexual abuse
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victim might not immediately report their abuse. In particular, he cited threats and
intimidation, as well as the understanding by victims that “you’re involved in an ongoing
relationship with somebody who has power and control over your life.” Thus, child
sexual abuse victims frequently delay disclosure of their abuse.
Defense Case
The victim’s sister and half-brother testified for defendant. Both stated their
grades had suffered around the time the victim’s mother moved out. The victim’s sister
denied defendant had ever touched her inappropriately.
Defendant testified on his own behalf and denied he had ever touched the victim
inappropriately. He denied he had ever showered with the victim or had an erection
around her. He also denied the mother had ever confronted him about having an erection
in the shower with the victim.
Defendant admitted having sex with the mother when she was 14 years old and
admitted he had been convicted of unlawful sexual intercourse with a minor because of
this relationship. He explained he and the mother lived together, with the mother’s
mother, and he supported the mother financially, just as he would later support the
victim. He stated he and the mother had separated because she was having an affair, and
not because of anything that had occurred with the victim.
After the separation, defendant and the mother shared parenting time until the
victim left when she was 15 or 16 years old. In the months before the victim left,
defendant and the victim had a difficult relationship, which defendant attributed to the
victim’s lying, physical abuse of her siblings, and theft.
With respect to the pretext call, he acknowledged several long pauses on his part
when responding to accusations of child molestation, but explained he had simply been in
disbelief. He also suspected the mother was behind the call because he had recently
threatened to seek full custody of the victim’s sister.
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The defense called Dr. Eugene Roeder, a forensic psychologist. Roeder had
conducted an evaluation pursuant to People v. Stoll (1989) 49 Cal.3d 1136 on defendant,
which is intended to detect sexual deviancy. The test assessed specific factors--
defendant’s honesty, psychiatric disorders, narcissism, antisocial personality, drug abuse,
alcohol abuse, sadism, and masochism. Roeder determined defendant had some
paranoia, but opined this was normal for a defendant in a criminal prosecution.
Defendant did not display evidence of the other factors, and there was no evidence of
sexual deviancy or abnormality.
Verdict and Sentencing
In closing arguments, the prosecution referred to defendant’s prior conviction for
unlawful sexual intercourse with a minor as evidence of defendant’s propensity to be
sexually attracted to young girls. The trial court instructed the jury with CALCRIM
No. 1191, which admonished the jury that defendant’s prior conviction was “only one
factor to consider along with other evidence.” Count 1 had been dismissed before
argument; the jury found defendant guilty on six counts of lewd acts on a child (§ 288,
subd. (a); counts 2 through 7) and two counts of oral copulation of a child (former
§ 288a, subd. (C)(1); counts 8 and 9).
At the sentencing hearing, the trial court elected to sentence defendant to the upper
term on count 2, based on its findings that defendant had deceived the victim into
thinking his actions were permissible, his actions “were frightening and confusing to [the
victim],” and defendant lacked remorse for his actions. The court also determined the
terms for the counts should run consecutively, saying: “I’ve selected the terms in Counts
3, 4, 5, 6, 7, 8, and 9 to run consecutively to Count 2 and consecutive to each other. The
reasons for selecting consecutive sentencing is because [sic]: [¶] 1. The Defendant was
separately convicted in 2001 of a felony violation of Penal Code Section 261.5, engaging
in sexual relations with a minor over three years younger than himself; [¶] And [¶]
2. The counts for which the consecutive sentences have been imposed reflect separate
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offenses committed at different times.” Ultimately, the court sentenced defendant to an
aggregate term of 22 years in state prison. Defense counsel asked for leniency, including
“running one or more of the counts concurrent” but did not object to the imposition of
consecutive terms.
DISCUSSION
I
Prior Sexual Misconduct
Defendant argues the trial court erred when it introduced evidence of defendant’s
conviction for unlawful sexual intercourse with a minor based on his sexual relationship
with the mother when she was 13 years old. He argues the prior conviction was
dissimilar from the offenses at issue in this case, was remote in time, and introduced the
possibility the jury would punish him for his prior conduct, rather than the current
offenses. The erroneous admission of the evidence, defendant claims, constituted a
violation of due process. We disagree.
Generally, evidence of prior misconduct is not admissible to prove propensity to
commit the charged conduct. (Evid. Code, § 1101, subd. (a).) However, evidence that a
person committed other acts can be admissible when relevant to prove some fact--i.e.,
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
accident--other than his or her disposition to commit such an act. (Id., § 1101, subd. (b).)
And, as relevant here, “[i]n 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.” (Id., § 1108, subd. (a).)
Thus, if evidence is admissible under Evidence Code section 1108, the trial court
must “exclude [it] if its probative value is substantially outweighed by the probability that
its admission will (a) necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid.
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Code, § 352.) In conducting this weighing process, the trial court considers the “ ‘unique
facts and issues of each case.’ ” (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1116.)
“ ‘Rather than admit or exclude every sex offense a defendant commits, trial judges must
consider such factors as its nature, relevance, and possible remoteness, the degree of
certainty of its commission and the likelihood of confusing, misleading, or distracting the
jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial
impact on the jurors, the burden on the defendant in defending against the uncharged
offense, and the availability of less prejudicial alternatives to its outright admission, such
as admitting some but not all of the defendant’s other sex offenses . . . .’ ” (Id. at
pp. 1116-1117.)
We review a trial court’s decision to admit evidence of a prior sexual offense
under Evidence Code sections 352 and 1108 for an abuse of discretion. (People v. Avila
(2014) 59 Cal.4th 496, 515.) A discretionary decision will not be disturbed on appeal,
absent “ ‘a showing that the court exercised its discretion in an arbitrary, capricious or
patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Here, defendant had a 2001 conviction for unlawful sexual intercourse with a
minor based on a sexual relationship with the mother, who was then 13 years old. The
prosecution moved in limine to admit evidence of this prior conviction and defendant
opposed the motion, arguing the conviction was remote in time and lacked similarity to
the charged crimes.
The crime of unlawful sexual intercourse with a minor (§ 261.5, subd. (c)), is
enumerated in Evidence Code section 1108 and is therefore potentially admissible as
propensity evidence. (Evid. Code, § 1108, subd. (d)(1)(A).) The charged offenses
include lewd acts on a minor (§ 288), which has a specific intent requirement: it punishes
acts done “with the intent of arousing, appealing to, or gratifying the lust, passions, or
sexual desires of that person or the child.” (§ 288, subd. (a).) Unlawful sexual
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intercourse with a minor tends to prove sexual desire towards children, making the prior
conviction highly relevant as evidence of the required specific intent.
Moreover, the prior conviction was not excessively inflammatory or prejudicial
when compared to the charged offenses at issue. The prior conviction did not involve
any violence and, as defendant notes, resulted in a lengthy (and legal) relationship. The
age disparity between defendant and the mother was narrower than that between
defendant and the victim. The relative punishments between the relevant crimes also
support the conclusion that defendant’s prior conviction was not more egregious than the
charged crimes. Unlawful sexual intercourse with a minor is a wobbler and is punishable
by 16 months to three years as a felony or up to one year as a misdemeanor. (§§ 261.5,
subd. (c), 1170, subd. (h).) The charged offense, however, is a felony and is punishable
by three, six, or eight years in state prison. (§ 288, subd. (a).)
Similarly, there was a high degree of certainty the prior misconduct occurred
because it resulted in a criminal conviction, which defendant admitted. There is no
indication the admission of the prior conviction took up an excessive amount of time at
trial, nor was it an unduly complex crime such that it ran the risk of confusing or
misleading the jury. And because defendant was convicted of the crime, there was a
reduced risk the jury would attempt to punish defendant for the prior misconduct.
(People v. Falsetta (1999) 21 Cal.4th 903, 917.)
Defendant contends the facts behind the prior conviction were too dissimilar to the
charged crimes to be admissible. “ ‘ “[T]he charged and uncharged crimes need not be
sufficiently similar that evidence of the latter would be admissible under Evidence Code
section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is
enough the charged and uncharged offenses are sex offenses as defined in section
1108.” ’ [Citation.]” (People v. Cordova (2015) 62 Cal.4th 104, 133.) Moreover, there
were significant similarities between the offenses. Though the conduct in the offenses
involved a different disparity in ages between defendant and the respective victims, both
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were premised on defendant’s efforts to have sex with young girls. Both involved young
girls who were financially or emotionally dependent on defendant; defendant testified
that he supported both the victim and the victim’s mother in similar ways. Both also
involved victims who loved defendant very deeply and were reluctant to report him to
law enforcement, demonstrating defendant’s propensity for emotional exploitation.
These similarities “permitted the inference that defendant had a propensity to commit
such sex offenses, including the charged crime. [Citation.]” (Id. at p. 134.) “ ‘This
circumstance brings the evidence precisely within the primary purpose behind Evidence
Code section 1108.’ [Citation.]” (Ibid.)
Nor do we find the prior conviction unacceptably remote. (See People v.
Robertson (2012) 208 Cal.App.4th 965, 992 [listing cases affirming admission of
evidence of prior sexual crimes that occurred decades before the current crime]; People v.
Pierce (2002) 104 Cal.App.4th 893, 900 [where crimes are substantially similar, any
prejudicial effect of remoteness may be mitigated]; People v. Branch (2001)
91 Cal.App.4th 274, 284 [“No specific time limits have been established for determining
when an uncharged offense is so remote as to be inadmissible”].) The approximate 12-
year gap between the prior offense and the current offenses in this case does not
counterbalance the similarities between the crimes such that the prior conviction should
not have been considered.
Although defendant relies in large part on our opinion in People v. Harris (1998)
60 Cal.App.4th 727, we find that case very different. As defendant acknowledges, in
Harris the prior conviction involved a violent and bloody sexual assault in which
defendant’s role was unclear, while the charged offense involved defendant’s non-violent
sexual touching of an institutionalized victim. (Id. at p. 738.) The disparity of the
offenses and the use of the violent assault to prove the less aggressive crime resulted in
prejudice for multiple reasons. (Id. at pp. 738-741.) In contrast, here, as we have
described, consideration of the relevant factors when applied to the specific facts of this
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case show no abuse of discretion in the decision to admit the prior conviction. For
similar reasons, defendant’s due process rights were not violated. (See People v. Kraft
(2000) 23 Cal.4th 978, 1035 [“Application of the ordinary rules of evidence generally
does not impermissibly infringe on a capital defendant’s constitutional rights”].)
II
Ineffective Assistance of Counsel
Defendant contends the trial court erred when it imposed consecutive sentences
with respect to counts 1 and 7. Count 4, which involved defendant attempting to insert
his penis into the victim while on the couch, and count 7, which involved defendant dry-
humping the victim on the couch, were both part of the same incident. Thus defendant
argues that the trial court was mistaken when it determined the counts occurred “at
different times” and the sentences should run consecutively. Defendant claims he
received ineffective assistance of counsel because defense counsel failed to object to this
error. We disagree.
When imposing consecutive rather than concurrent sentences, a trial court must
state reasons for doing so. (§ 1170, subd. (c); Cal. Rules of Court, rule 4.406(b)(5);
People v. Neal (1993) 19 Cal.App.4th 1114, 1117.) But an appellate challenge to a
failure to do so is forfeited by failing to object below. (People v. Morales (2008)
168 Cal.App.4th 1075, 1084.) Here, the trial court imposed consecutive terms and
defendant’s counsel did not object. Defendant argues no satisfactory explanation exists
for the failure.
We conclude defense counsel did not provide ineffective assistance because it is
not reasonably probable defendant would have obtained a more favorable result had
defense counsel objected. (People v. Avena (1996) 13 Cal.4th 394, 418; People v.
Alvarado (2001) 87 Cal.App.4th 178, 194.)
When imposing consecutive terms, the trial court may consider whether “(1) [t]he
crimes and their objectives were predominantly independent of each other; [¶] (2) [t]he
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crimes involved separate acts of violence or threats of violence; or [¶] (3) [t]he crimes
were committed at different times or separate places, rather than being committed so
closely in time and place as to indicate a single period of aberrant behavior.” (Cal. Rules
of Court, rule 4.425(a).) The court may consider other circumstances in aggravation or
mitigation except those used to impose the upper term or enhance a sentence or that are
elements of the crime. (Cal. Rules of Court, rule 4.425(b).) Such circumstances can
include, among others, the vulnerability of the victim, whether the defendant “took
advantage of a position of trust . . . to commit the offense,” or the number or increasing
severity of the defendant’s prior convictions. (Id., rule 4.421.)
Here, the trial court imposed consecutive terms because of defendant’s prior
conviction and the court’s determination that the counts each “reflect[ed] separate
offenses committed at different times.” However, the court also recited defendant’s
criminal history, noting that it began with a conviction for unlawful sexual intercourse
with a minor and escalated into a felony conviction for spousal abuse before culminating
in the case at hand. The court also noted the particular aggravating circumstances in the
case, including the fact the victim was “particularly vulnerable” because she was alone
when the crimes occurred and “was living in the same house as the Defendant,” and
defendant “took advantage of a position of trust and confidence.”
The trial court imposed the upper term on count two, relying on defendant’s taking
advantage of a position of trust to deceive the victim, the fact defendant’s actions were
frightening to the victim, and defendant’s lack of remorse for his actions. Thus, the
remaining aggravating circumstances--defendant’s prior convictions of increasing
severity and the victim’s vulnerability--were available to support consecutive sentencing,
even absent the court’s disputed finding the crimes were separate offenses committed at
different times. Thus, an objection by defense counsel arguing the crimes were not
committed at different times would not have led to a better result for defendant because
the trial court had ample alternative reasons to impose consecutive sentences.
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Defendant’s contention that defense counsel provided ineffective assistance of counsel by
failing to object to the trial court’s imposition of consecutive sentences fails to persuade.
III
Abstract of Judgment
Although the parties did not raise it in their briefing, we have identified a clerical
error in the abstract of judgment. In its oral pronouncement, the trial court determined
defendant was entitled to 783 days of actual credit for time served, but the abstract of
judgment incorrectly indicates 738 days of actual credit for time served. Because this
appears to be a simple clerical error, we will direct the trial court to correct the abstract of
judgment without further briefing in the interest of judicial economy. (People v.
Rowland (1988) 206 Cal.App.3d 119, 123.)
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of
judgment and forward a certified copy to the Department of Corrections and
Rehabilitation.
/s/
Duarte, Acting P. J.
We concur:
/s/
Hoch, J.
/s/
Renner, J.
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