People v. Wilson ( 2023 )

Filed 3/29/23
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080920
Plaintiff and Respondent,
v. (Super. Ct. No. BAF1800877)
STEPHEN PHILLIP WILSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
James Stafford Hawkins, Judge. (Retired Judge of the Riverside Sup. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Affirmed.
Alex Coolman, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Attorney
General, Charles C. Ragland, Assistant Attorney General, Collette C.
Cavalier and Kathryn Kirschbaum, Deputy Attorneys General for Plaintiff
and Respondent.
A jury convicted Stephen Phillip Wilson of two counts of oral copulation
or sexual penetration of a child 10 years or younger. The evidence was
overwhelming. In a tape-recorded telephone call, Wilson told his adult son
that the victim (C.F.) at age six “was a better kisser than every one of my
wives except [one].” During a police interrogation, Wilson admitted that he
“kissed [C.F.’s] vagina and her breast area” and “she kissed me in private
areas too.” In her testimony, C.F. (now 17 years old) described nine years of
sexual abuse.
The People also introduced evidence of uncharged sexual offenses that
Wilson committed against C.F.’s sister (Sister). On appeal, Wilson contends
the judgment should be reversed because in closing argument the prosecutor
told the jury it could “presume” from this evidence that he “committed the
crimes here.”
If “presume” was understood by the jury in its legal sense—“an
assumption of fact that the law requires to be made from another fact”1—this
would be a material misstatement of law. Evidence of other sexual offenses
merely indicates a defendant’s disposition to commit sex crimes. (See People
v. Avila (2014) 59 Cal.4th 496, 516.) It does not create a presumption in the
legal sense.
But “presume” has a much different colloquial meaning. In everyday
conversation, “presume” means to expect or to believe—as in Henry Morton
Stanley’s famous greeting, “Dr. Livingstone, I presume.”
Here in the context in which it was said, the jury could reasonably have
understood “presume” only in the colloquial sense. There was no
prosecutorial error. And even if there were, on this record it was not
prejudicial. Accordingly, we affirm the judgment.
1 Evidence Code, section 600, subdivision (a), italics added.
2
FACTUAL AND PROCEDURAL BACKGROUND
When C.F. was about two-years-old, her mother married Richard, who
was a father-figure to her. Wilson is Richard’s father, and someone C.F.
knew as “grandpa.” At the time, Wilson was in his 60’s and 70’s, and she
looked up to him as an authority figure and “loved” him.
As a young child, C.F. frequently visited Wilson at his trailer park
home, sometimes alone and other times with Sister. He groomed C.F. by
taking her shopping for new clothes and a manicure. When she was about
eight years old, he bought her “thongs from Victoria Secret.” This made her
feel “special” and “important.”
From about age six to 15, C.F. was sexually abused by Wilson. It began
with back rubs, but quickly degenerated into touching her vagina. On
occasions, Wilson penetrated C.F.’s vagina with his finger, sometimes so
aggressively it caused her to bleed. He also orally copulated C.F. “every day”
she was there. When C.F. was about nine years old, Wilson forced her to
touch his erect penis. Afterwards her hands were “wet.”2
Wilson similarly molested Sister (C.F.’s sibling), starting when she was
five or six years old. He took her out for a manicure, or to buy new clothes.
Back at the trailer, it started with back rubs, but he “would keep moving
down.” On one occasion, he pushed his erect penis against her back.
In 2017, C.F. was visiting her aunt (Wilson’s daughter) and told her
that he had kissed, touched, and “raped” her. When the aunt confronted
2 C.F. testified that at age 12 she reported Wilson’s abuse to her
biological father and stepmother, but they did not believe her. She remained
silent for several more years, thinking no one would believe her because
Wilson was respected in his church and Richard was “really fond of him.”
3
Wilson, he admitted only to kissing, but described it as the “best kissing” he
ever had.
This led to a police investigation and search warrant for Wilson’s
trailer. There, police seized a computer containing 51,000 photographs and
several videos. A sampling of 118 photographs introduced at trial depicted
children engaged in sex acts, including some involving a two or three year
old.
Although Wilson did not testify, his recorded admissions were played
for the jury. The first were from a telephone call with his son, Richard. He
admitted touching C.F. “[a]ll over,” but blamed her for starting it by
“passionately kiss[ing]” him.
Wilson made more admissions in a police interrogation. He
acknowledged kissing C.F. “passionately, with tongue and all that stuff”
many times when she was seven or eight years old. He also confessed that he
kissed her “vagina and breast area,” and volunteered, “she kissed me in
private areas too.”
DISCUSSION
In closing argument, the prosecutor told jurors they should convict
based on C.F.’s testimony, especially in light of Wilson’s admissions. Then,
turning to “supporting evidence of the defendant’s guilt,” she directed the
jury’s attention to CALCRIM No. 1191 and “the child porn and [Sister’s]
testimony.” Elaborating, the prosecutor continued:
“Now you get jury instruction 1191, and what 1191 says is
if there’s evidence presented that the defendant touched
another child in a lewd or lascivious way which you got the
instructions for, then you can presume that he committed
the crimes here.
4
“We also have what we call evidence of propensity, and in
sexual assault cases, we’re allowed to use propensity
evidence, meaning that because a person did other acts,
they’re likely to have done the acts here.
“So let’s talk about the child porn. . . . [¶] . . . [¶] You can
use that child porn to take into account whether or not the
defendant did the acts described in [Penal Code section]
288.7, and it makes sense why you can. You can use that,
and you should use it because it gives you an insight into
the defendant’s mind and it substantiates [C.F.’s]
testimony about what was going on and what he was doing
to her.
“Now, we also have [Sister’s] testimony, and again, what
[jury instruction] 1190 [sic][3] says is that if you believe by
a preponderance of the evidence that other sexual acts were
committed by the defendant on the other individual, you
can take that into account when you’re talking about [C.F.’s]
testimony.” (Italics added.)
Wilson’s attorney did not object. After the defense closing, prosecutor’s
rebuttal closing argument, and final instructions to the jury, about 10
minutes remained in the court day. The jury was directed out of the
courtroom to select a foreperson. After the alternate jurors left the
courtroom, defense counsel stated:
“[T]he People argue that if you found this child
pornography, you could presume that the charges were
accurate, that you could presume there was guilt here.
“And I don’t think there’s any presumption with this kind
of evidence at all. She did then go on and talk about
propensity, and I understand that. But as far as
3 CALCRIM No. 1190 states, “Conviction of a sexual assault crime may
be based on the testimony of a complaining witness alone.” We assume the
prosecutor misspoke and intended to cite CALCRIM No. 1191A, entitled
“Evidence of Uncharged Sexual Offense.”
5
presuming that the charges are true, you can’t do that with
this kind of evidence.” [¶] . . . [¶]
“[T]he People said you can presume the truth of the charges
before she went into explaining propensity, and I think that
is an egregious misstatement of the law. I think it probably
constitutes a mistrial . . . .”
Construing counsel’s remarks as a motion for mistrial, the court asked
the reporter to find that part of closing argument. The court went off the
record while that was done. According to the transcript, the next on-the-
record colloquy seems to reflect that the mistrial motion was denied:
“[Defense counsel:] So what I’m saying is that I heard that
you can presume he committed the crimes here. I thought
that was referring to the uncharged offenses. I had a
reaction to that. I thought that that was referring to the
charges in this case.
“[The court:] Okay. So will you be around tomorrow?
“[Defense counsel:] Yes, sir. I’ll be on call. I’ll be at work,
I’m sure.
“[Prosecutor:] I’m sorry, Your Honor? Is the court denying
[defense counsel’s] motion?
“[The court:] Yes.
“[Prosecutor:] Thank you.
“[The court:] I think he withdrew it.
“[Defense counsel:] No, I didn’t.
“[The court:] Well, I thought you said—
“[Defense counsel:] I understand the court’s ruling.
6
“[The court:] Yeah. I thought you said—never mind. It’s
denied.”4
Wilson’s sole contention on appeal is that the court erroneously denied
the motion for mistrial because the prosecutor’s closing argument led jurors
to believe they could conclusively presume the charged offenses occurred
based on evidence Wilson committed uncharged sex offenses. Before
discussing the merits, we address the Attorney General’s contention that the
point is forfeited because defense counsel did not object or request a curative
admonition immediately after the claimed misconduct occurred.
Generally, an appellate court will not consider whether a prosecutor
misstated the law during closing argument unless a contemporaneous
objection is made. (See People v. Steskal (2021) 11 Cal.5th 332, 360
(Steskal).) The reason for this rule is that the trial court should be given an
opportunity to correct the error and, if possible, prevent any prejudice by an
appropriate curative instruction. (See People v. Peoples (2016) 62 Cal.4th
718, 801 (Peoples).)
Here, although defense counsel did not object during closing argument,
he moved for a mistrial immediately after the jury was sent to select a
foreperson and begin deliberations with just 10 minutes remaining in the
court day. From an appellate perspective it would have been preferable had
Wilson’s objection been made before the jury left the courtroom. Still, we
conclude the motion for mistrial was sufficient to preserve the claim.
Two Supreme Court cases seem to set the parameters for analysis.
In Steskal, defense counsel first objected to the prosecutor’s claimed
4 It would have been helpful if, once back on the record, the court and/or
attorneys had memorialized the off-the-record discussion, or at least the
court’s reasoning in denying the mistrial motion.
7
misstatement of law in a motion for mistrial filed the next day (but before the
defense had completed its closing remarks). (Steskal, supra, 11 Cal.5th at
p. 360.) The Supreme Court held the motion was sufficient to preserve the
claim because the trial court had an opportunity to admonish the jury before
it started deliberating. (Ibid.) Conversely, in People v. Adams (2014) 60
Cal.4th 541 (Adams), the court held that a postverdict motion for new trial
was insufficient to preserve a like claim because by that point, a curative
instruction could not be given. (Id. at p. 577.)
The rule we distill is that a claim of prosecutorial misconduct during
closing argument may also be preserved if presented in a motion for mistrial
made while proceedings are still ongoing and there is a meaningful
opportunity for the trial court to cure the error(s) by admonishing the jury.
(See Peoples, supra, 62 Cal.4th at p. 801 [motion for mistrial “put the court on
notice that misconduct was alleged in time for the court to instruct the jury
and correct any error”].)
The timing of Wilson’s motion falls somewhere between Steskal and
Adams. Unlike in Steskal, Wilson raised the issue after closing arguments
were over and the jury was sent to begin deliberations. But also unlike
Adams, the motion was made before the jury reached a verdict. Indeed here,
the jury could have been brought back into the courtroom for a curative
instruction less than 10 minutes after it was sent out to choose a foreperson.
In light of the underlying purpose of the forfeiture rule, this case more
closely resembles Steskal than it does Adams. The timing of defense
counsel’s objection gave the trial court an opportunity to admonish the jury
the same day, and likely before it had conducted any substantive
8
deliberations.5 It is a close call, but we conclude the issue is preserved for
appeal.
“ ‘ “To prevail on a claim of prosecutorial misconduct based on remarks
to the jury, the defendant must show a reasonable likelihood the jury
understood or applied the complained-of comments in an improper or
erroneous manner. [Citation.] In conducting this inquiry, we ‘do not lightly
infer’ that the jury drew the most damaging rather than the least damaging
meaning from the prosecutor’s statements.” ’ ” (Adams, supra, 60 Cal.4th at
p. 577.) The court must consider the challenged statements in the context of
the argument as a whole. (People v. Cowan (2017) 8 Cal.App.5th 1152, 1159.)
Although the prosecutor’s use of the word “presume” was imprecise,
Wilson’s claim that jurors would have understood it to mean they were
required to find him guilty if persuaded he also committed the uncharged
offenses is not accurate either. Absent an instruction on the legal meaning of
“presume” (and there was none), the jury would reasonably understand it
only in the colloquial sense—“to expect or assume especially with
confidence.”6 This everyday meaning was reinforced by the prosecutor’s
contemporaneous reference to CALCRIM No. 1191, which as given here
stated:
“If you conclude the defendant committed the uncharged
act, that conclusion is only one factor for you to consider
along with all the other evidence. It’s not sufficient by itself
to prove the defendant is guilty of the acts charged.
Remember, the People always have to prove each charge
beyond a reasonable doubt.” [¶] . . . [¶]
5 The jury did not return its verdict until the following day.
6 [as of Mar.
24, 2023], archived at .
9
“If you decide the defendant did commit these uncharged
acts, you may, but you’re not required to, conclude from the
evidence that the defendant was disposed or inclined to
commit sexual offenses, and based on that decision, also
conclude that the defendant was likely to commit and did
commit sex acts on a child under 10 years of age as charged
in this case. . . . It’s not sufficient by itself to prove the
defendant’s guilty of the charged sexual offenses. The
People, remember, still have to prove each charge beyond a
reasonable doubt.”7 (Italics added.)
Moreover, even if jurors may have nevertheless understood “presume”
in its legal sense, the trial court also instructed, “You must follow the law as I
explain it to you, . . . and if you believe the attorneys’ comments on the law
conflict with these instructions, please follow the instructions.” Jurors are
credited with intelligence and common sense. We “presume they generally
understand and follow the instructions.” (People v. McKinnon (2011) 52
Cal.4th 610, 670.) It is highly unlikely that based on the prosecutor’s use of
the word “presume,” jurors understood they were required to find Wilson
committed the charged offenses merely because they believed he committed
the uncharged ones. In common parlance, “presumed” does not mean that,
and the court expressly instructed the jury the noncharged offenses were “not
sufficient” to prove guilt of the charged crimes.
In any event, even if error occurred, it was not prejudicial. Wilson
concedes that People v. Watson (1956) 46 Cal.2d 818 provides the applicable
standard for assessing prejudice. (Id. at p. 836.) And it is not reasonably
probable that he would have obtained a more favorable result absent the
error. Wilson confessed on two separate occasions in recorded statements
played for the jury. Even his appellate counsel is forced to concede that the
7 Wilson concedes that the jury was correctly instructed on the
permissible uses of noncharged crimes evidence.
10
jury “would probably have given significant weight to those statements” and
there was a “formidable body of evidence that the defense had to contend
with in this case.” That’s putting it mildly. “ ‘A confession is like no other
evidence. Indeed, “the defendant’s own confession is probably the most
probative and damaging evidence that can be admitted against him.” ’ ”
(People v. Saldana (2018) 19 Cal.App.5th 432, 463.) Moreover, although
Wilson speculates that C.F. had a motive to fabricate “as a way of seeking
attention,” Sister’s testimony and the evidence of child pornography gave the
jury ample reason to reject that suggestion.
DISPOSITION
The judgment is affirmed.
DATO, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
11