P. v. Cottone 5/9/11 CA4/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: G042923

Case Date: 08/18/2011

Preview:Filed 5/9/11

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. LEE VINCENT COTTONE, Defendant and Appellant. G042923 (Super. Ct. No. 06HF1734) OPINION

Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Reversed. William J. Kopeny for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, James H. Flaherty III, and Meredith Strong, Deputy Attorneys General, for Plaintiff and Respondent.

Lee Vincent Cottone appeals from a judgment after a jury convicted him of four counts of committing a lewd act upon a child under the age of 14, and found true he had substantial sexual conduct with a child as to all counts. Relying on Penal Code section 261 and Evidence Code section 1108, Cottone argues the trial court erroneously admitted evidence that approximately 32 years ago he committed a lewd act on his sister. Cottone argues: (1) section 26 is applicable to Evidence Code section 1108; (2) the prosecutor failed to present clear and convincing evidence Cottone appreciated the wrongfulness of the 32-year old prior sexual misconduct; (3) the prior sexual misconduct evidence was not admissible pursuant to Evidence Code section 1108 because it was irrelevant, remote, and prejudicial; and (4) the trial court was required to submit to the jury the issue of whether Cottone appreciated the wrongfulness of his conduct. As we explain below, we agree section 26 is applicable to Evidence Code section 1108, and the trial court erred in not submitting to the jury the issue of whether Cottone appreciated the wrongfulness of his prior sexual misconduct. Because the jury, and not the trial court, should have determined whether the prosecutor offered clear and convincing evidence Cottone appreciated the wrongfulness of his prior sexual misconduct, and the evidence of guilt was not overwhelming, we conclude Cottone was prejudiced by the error. We reverse the judgment. FACTS B., who was eight years old, lived in the South Bay. During school breaks and summer vacation B. would visit Cottone, her uncle, and Jeanie Cottone (Jeanie), her aunt, in Irvine for multiday visits. B. enjoyed spending time with Jeanie because they would go to the movies, shop, and play games. Because B. was scared to sleep alone, she would sleep between Jeanie, who wore earplugs, and Cottone, in their bed.
1

All further statutory references are to the Penal Code, unless otherwise

indicated.

2

The first evening she slept in the Cottones bed, B. woke up because Cottone was touching her vagina, breasts, and buttocks with his hand. B. moved to get Cottone to stop, but she did not tell him to stop. She did not wake up Jeanie, tell her what happened, or say anything to Cottone because she was scared. She did not ask to sleep in the empty bedroom because she was scared to sleep alone. The next night, the same thing happened. When B. returned home, she did not tell anyone what happened because she was scared. On her second visit to the Cottone residence, B. again slept with the Cottones. Cottone again touched her vagina, breasts, and buttocks. When B. was 11 or 12 years old, B.s sister, K., and B.s cousin, C., began spending the night at the Cottone residence; this occurred approximately 10 to 15 times. The three girls slept in a bed in the guestroom; B. and C. would sleep on the outside and K. would sleep in the middle. During the night, Cottone would enter the dark room, sit on the bed, and pull back the covers. Cottone would touch B.s vagina, breasts, and buttocks. B. did not tell her sister or cousin what had happened because she was scared. B. spent the night at the Cottone residence between two and four days, three to four times a year for approximately four years, and Cottone touched B. inappropriately every time she spent the night. At some point, B. began telling her mother, J., she did not want to spend the night at her uncle and aunts house. J. would tell B. that Jeanie was expecting her, and B. would go. B. did not tell her mother why she did not want to spend the night. A few years later, B. and her mother were going to a family bridal shower. J. was complaining about how Cottone treated her son, and B. said, ",,Well, if you think thats bad, you should -- you dont want to know what he ha[d] done to [her][.]" B. told her mother what had happened.

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An information charged Cottone with four counts of committing a lewd act upon a child under the age of 14 (

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