People v. Wyman CA3 ( 2024 )

Filed 9/18/24 P. v. Wyman 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Calaveras)
----
THE PEOPLE,
Plaintiff and Respondent, C098091
v. (Super. Ct. No. 22F8429)
DEREK DONHAM WYMAN,
Defendant and Appellant.
A jury convicted defendant Derek Donham Wyman of sexual intercourse with a
child under 10 years old and committing a forcible lewd act on the child. The jury found
that defendant committed the lewd act by force, violence, duress, menace, or fear of
injury, and that he had a prior conviction for a lewd act with a child. The trial court
sentenced defendant to 25 years to life in prison.
Defendant now contends the trial court (1) should have instructed the jury on
attempted sexual intercourse, and (2) abused its discretion in admitting prior misconduct
evidence.
Finding no merit in the contentions, we will affirm the judgment.
BACKGROUND
C.C. spent the night at defendant’s house when she was seven or eight years old.
Her aunt dropped her off there. Defendant was at the house with his girlfriend.
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C.C. watched cartoons with defendant’s girlfriend while defendant went out.
Defendant did not return until later in the evening when C.C. was asleep on the couch and
defendant’s girlfriend was in the bedroom. Defendant sat next to C.C. on the couch,
touched her knee, and took her clothes off. C.C. began crying and told defendant to stop,
saying she wanted to go home. Defendant put his hand over her mouth and told her to
shut up. He said he would kill her sister if C.C. said anything. She was trying to get
away, but defendant kept pushing her back down.
Defendant took his clothes off, touched C.C.’s chest, and touched his “private
parts” to her “private parts.” C.C. told a forensic interviewer that defendant hurt her
inside her private part when he put his private part inside of her. She said he did it more
than one time, and that she felt pressure on her body when this was happening. C.C. was
scared. Eventually defendant returned to his bedroom.
A recording of C.C.’s interview with the forensic interviewer was played to the
jury.
R.D. testified at trial that she was defendant’s daughter. From the age of three
years old until she was 14 years old, defendant made her perform oral copulation on him
and he orally copulated her. Defendant told R.D. not to tell because it would upset a lot
of people and no one would believe her. R.D. also remembered an incident when
defendant inserted a horse whip in her vagina. On another occasion, defendant tried to
anally penetrate R.D., but she pushed him away. Another time at defendant’s friend’s
house, R.D. was asking for toilet paper and defendant put toilet paper on his penis and
cornered R.D. in the downstairs bathroom and tried to assault her there. In the upstairs
bathroom, defendant tried to get R.D. to orally copulate him when she was taking a
shower, and then he tried to touch her.
R.D. was yelling one night because she was angry about what defendant was
doing to her. Defendant held a knife to her throat, covered her mouth, and told her he
would kill her or her mother.
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The jury convicted defendant of sexual intercourse with C.C., a child of 10 years
of age or younger (Pen. Code, § 288.7, subd. (a) -- count I),1 and committing a forcible
lewd act upon C.C. (§ 288, subd. (b)(1) -- count II). The jury found that defendant
committed the lewd act by force, violence, duress, menace or fear of immediate bodily
injury (§ 1203.066, subd. (a)(1)) and that he had a prior conviction for committing a lewd
act upon a child (§ 288, subd. (c)(1)). The trial court sentenced defendant to 25 years to
life in prison for the sexual intercourse conviction and imposed but stayed a sentence of
eight years for the forcible lewd act conviction.
DISCUSSION
I
Defendant contends the trial court should have instructed the jury on attempted
sexual intercourse. He claims it is a lesser included offense of sexual intercourse.
A trial court “must instruct on an uncharged offense that is less serious than, and
included in, a charged greater offense, even in the absence of a request, whenever there is
substantial evidence raising a question as to whether all of the elements of the charged
greater offense are present.” (People v. Huggins (2006) 38 Cal.4th 175, 215.) An
uncharged crime constitutes a lesser included offense of a charged crime if it meets either
the “elements” test or the “accusatory pleading” test. (People v. Smith (2013) 57 Cal.4th
232, 240.) “The elements test is satisfied if the statutory elements of the greater offense
include all of the statutory elements of the lesser offense, such that all legal elements of
the lesser offense are also elements of the greater.” (People v. Bailey (2012) 54 Cal.4th
740, 748 (Bailey).) The accusatory pleading test inquires whether the “ ‘facts actually
alleged in the accusatory pleading[] include all the elements of the lesser offense, such
1 Undesignated statutory references are to the Penal Code.
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that the greater cannot be committed without also committing the lesser.’ ” (Smith, at
p. 240.)
The elements of sexual intercourse with a child 10 years of age or younger are:
(1) the defendant engaged in an act of sexual intercourse with the victim; (2) when the
defendant did so, the victim was 10 years of age or younger; and (3) at the time of the act,
the defendant was at least 18 years old. (§ 288.7, subd. (a); CALCRIM No. 1127.)
“Sexual intercourse means any penetration, no matter how slight, of the vagina or
genitalia by the penis.” (People v. Mendoza (2015) 240 Cal.App.4th 72, 79 (Mendoza),
citing People v. Dunn (2012) 205 Cal.App.4th 1086, 1097.) This is a general intent
crime. (People v. Richardson (2008) 43 Cal.4th 959, 1018.) Attempted sexual
intercourse requires “two elements: a specific intent to commit the crime, and a direct but
ineffectual act done toward its commission.” (§ 21a.) Accordingly, as between sexual
intercourse and attempted sexual intercourse, there are different mental states required,
and, under the elements test, attempted sexual intercourse is not a lesser included offense
of the charged completed crime. (Mendoza, at p. 83; see People v. Ngo (2014)
225 Cal.App.4th 126, 156 [“when the completed offense is a general intent crime, an
attempt to commit that offense does not meet the definition of a lesser included offense
under the elements test because the attempted offense includes a specific intent element
not included in the complete offense”]; People v. Braslaw (2015) 233 Cal.App.4th 1239,
1248 (Braslaw) [“If the attempt requires a heightened mental state, as is the case with
attempts of many general intent crimes, the attempt requires proof of an additional
element and is therefore not a lesser included offense”].) Defendant argues Mendoza, as
well as Bailey, supra, 54 Cal.4th at page 748, on which Mendoza relied, were wrongly
decided, but he acknowledges we are bound by the decision of the California Supreme
Court.
The accusatory pleading test also does not assist defendant. “Where the
accusatory pleading . . . tracks the statutory language rather than reciting factual details
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of the offense, ‘only the statutory elements test is relevant in determining if an uncharged
crime is a lesser included offense of that charged.’ ” (Braslaw, supra, 233 Cal.App.4th
at p. 1247.) Defendant argues the amended information required specific intent because
it alleged defendant “did engage in sexual intercourse” with C.C. (italics added), but
because the allegation tracked the statute, only the elements test is relevant.
Section 288.7, subdivision (a), provides: “Any person 18 years of age or older who
engages in sexual intercourse or sodomy with a child who is 10 years of age or younger
is guilty of a felony and shall be punished by imprisonment in the state prison for a term
of 25 years to life.” (Italics added.)
Because attempted sexual intercourse is not a lesser included offense of sexual
intercourse (Mendoza, supra, 240 Cal.App.4th at p. 83), the trial court was not required to
instruct the jury sua sponte on attempted sexual intercourse.
II
In addition, defendant contends the trial court abused its discretion in admitting
evidence of defendant’s sexual abuse of R.D., because (1) it applied the wrong legal
standard, and (2) the inflammatory nature of the prior acts evidence outweighed its
probative value.
A
Evidence of a defendant’s uncharged conduct is generally not admissible to prove
the defendant’s criminal disposition or propensity to commit crimes. (Evid. Code,
§ 1101, subd. (a); People v. Kipp (1998) 18 Cal.4th 349, 369.) However, Evidence Code
section 1108 provides that when a defendant is charged with a sex offense, evidence of
defendant’s other sex offenses is not made inadmissible by Evidence Code section 1101
if the evidence is admissible under Evidence Code section 352. (Evid. Code, § 1108,
subd. (a).)
The Legislature in enacting Evidence Code section 1108 recognized that “ ‘sex
crimes are usually committed in seclusion without third party witnesses or substantial
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corroborating evidence. The ensuing trial often presents conflicting versions of the event
and requires the trier of fact to make difficult credibility determinations.’ ” (People v.
Villatoro (2012) 54 Cal.4th 1152, 1160, quoting People v. Falsetta (1999) 21 Cal.4th 903,
915 (Falsetta).) Evidence Code section 1108 permits the trier of fact to consider
uncharged sex offense evidence as evidence of the defendant’s propensity to commit sex
offenses in evaluating the defendant’s and the victim’s credibility and in deciding whether
the defendant committed the sex offense charged. (Villatoro, at pp. 1160, 1164, 1166-
1167; Falsetta, at pp. 911-912.)
Nevertheless, uncharged sexual conduct evidence is inadmissible if, under
Evidence Code section 352, the probative value of the evidence is substantially
outweighed by the probability that its admission will necessitate undue consumption of
time or create substantial danger of prejudice, of confusing the issues, or of misleading
the jury. (Evid. Code, §§ 352, 1108, subd. (a).) The probative value of uncharged sexual
conduct evidence is increased by the relative similarity between the charged and
uncharged acts, the close proximity in time between the charged and uncharged acts,
and the independent sources of evidence in each offense. (Falsetta, supra, 21 Cal.4th
at p. 917.) The prejudicial impact of uncharged sexual conduct evidence is reduced if the
uncharged act resulted in a criminal conviction and a substantial prison term, ensuring
that the jury would not be tempted to convict the defendant simply to punish him for the
uncharged act, and that the jury’s attention would not be diverted by having to determine
whether defendant committed the uncharged act. (Ibid.)
We review a trial court’s Evidence Code section 352 determination under the
deferential abuse of discretion standard. (People v. Avila (2014) 59 Cal.4th 496, 515.)
B
The People moved in limine under Evidence Code section 1108 to admit
testimony from defendant’s daughter, R.D., that defendant committed sexual offenses
against her. The People noted that in 2011, defendant was convicted of a violation of
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section 288, subdivision (c)(1). There was additional evidence that defendant committed
acts of oral copulation and penetration with a foreign object against his daughter
beginning when she was three years old. The People sought to present this testimony
from one witness, R.D., which testimony was expected to consume one hour of trial time.
Defendant objected to the evidence, arguing it was irrelevant and more prejudicial
than probative. Among other things, he argued the conduct was remote and also
dissimilar. The conduct with R.D. involved oral copulation, penetration with a foreign
object, and masturbation, which did not occur in the present case; and R.D. would testify
that defendant abused her daily from age three to 14 years old, whereas the present case
involved a single assault when C.C. was nine years old. Defendant further argued the
uncharged sexual offenses against R.D. would inflame the jury’s emotions.
The trial court granted the People’s motion, ruling there were sufficient similarities
in the ages of the children and the type of conduct, the evidence would not consume too
much time, and it would not be unduly prejudicial.2 The trial court said it would give a
limiting instruction.
We disagree with defendant’s argument that the trial court applied the wrong legal
standard. Defendant points to a comment made by the trial court that the R.D. evidence
did not shock the conscience, but in context we conclude the trial court understood the
law and applied it correctly. It expressly found that the evidence would not involve
undue consumption of time, and any prejudicial impact would not outweigh the probative
value.
2 Defendant notes that the reporter’s transcript states that the trial court said the
following: “I find it would lead to being unduly prejudicial in this case.” Defendant
acknowledges a possible miscommunication, and in context it is clear the trial court did
not find the evidence inadmissible under Evidence Code section 352.
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Defendant also argues the evidence was unduly inflammatory, citing this court’s
decision in People v. Harris (1998) 60 Cal.App.4th 727, 737 to 738. But Harris does not
support defendant’s argument. In that case the defendant, a mental health nurse, kissed
and fondled two women who were vulnerable due to their mental health conditions.
(Id. at pp. 730-732.) Prior crimes evidence involved a woman found naked from the
waist down with blood on her vagina and mouth and a severe swelling on the side of her
face. (Id. at p. 734.) Defendant was found hiding nearby with blood on his shorts and
penis. (Id. at pp. 734-735.) This court observed that the evidence was “inflammatory in
the extreme” and that the charged crimes were “of a significantly different nature and
quality” from the prior offenses. (Id. at p. 738.) But that is not the case here. Although
the prior misconduct evidence involved a longer period of time, a younger victim, some
different acts, and a threat with a knife, there were also similarities to the present case.
Both victims were female minors, showing that defendant had a sexual attraction to
young girls. (People v. Holford (2012) 203 Cal.App.4th 155, 185-186.) Defendant had
more opportunity with his daughter, but C.C. was assaulted the one time she slept over at
defendant’s house, showing defendant would take advantage of a young girl when left
alone with them, whether on a single occasion or over a period of time. (People v. Soto
(1998) 64 Cal.App.4th 966, 991.) Defendant argues the conduct with his daughter was
more inflammatory because it was incestuous, but R.D. and C.C. have the same mother
and C.C. thought of defendant as her uncle. Moreover, defendant covered the mouths of
both victims and threatened violence when they protested. As the court in People v.
Frazier (2001) 89 Cal.App.4th 30 (Frazier) observed: “The 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.” (Frazier, at pp. 40-41.)
Defendant does not quantify how much of the trial was occupied with R.D.’s
testimony. But courts have held that prior crimes evidence occupying a significant
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percentages of trial testimony did not consume an undue amount of time. (Frazier, supra,
89 Cal.App.4th at p. 42 [trial court did not abuse its discretion in admitting evidence
regarding prior offenses that consumed 27 percent of trial transcript]; People v. Escudero
(2010) 183 Cal.App.4th 302, 312 [evidence that prior sex offense consumed 53 percent of
the trial time did not compel court to exclude evidence].) Moreover, defendant’s sexual
abuse of R.D. more than a decade before his abuse of C.C. tended to show the long-term
persistence of his opportunistic propensity. (See Frazier, supra, 89 Cal.App.4th at p. 41.)
“Numerous cases have upheld admission pursuant to Evidence Code section 1108 of
prior sexual crimes that occurred decades before the current offenses.” (People v.
Robertson (2012) 208 Cal.App.4th 965, 992 [citing cases]; see People v. Branch (2001)
91 Cal.App.4th 274, 284 [prior offense occurring 30 years before current offense was not
remote where both offenses involved defendant molesting a 12-year-old relative staying
in defendant’s home].)
The trial court did not abuse its discretion in admitting evidence of defendant’s
sexual abuse of R.D.
DISPOSITION
The judgment is affirmed.
/S/
MAURO, Acting P. J.
We concur:
/S/
RENNER, J.
/S/
FEINBERG, J.
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