P. v. Lawrence 4/16/07 CA4/1

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State: California

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

Docket No: D047547

Case Date: 06/28/2007

Preview:Filed 4/16/07 P. v. Lawrence CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. WILLIAM CARL LAWRENCE, Defendant and Appellant.

D047547

(Super. Ct. No. SCD189310)

APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed in part, reversed in part.

William Carl Lawrence appeals a judgment arising out of his convictions of 11 charges of lewd acts on a child under the age of 14. He contends that (1) his convictions must be reversed because the trial court improperly excluded his proposed expert testimony regarding the frequency with which child reports of sexual abuse are false; (2) the trial court denied his right to a jury trial and violated due process by denying his

request to have the jury determine the issue of whether he was the person who suffered prior convictions in 1961 and 1970 as alleged in the information against him; (3) the trial court erred in admitting evidence outside the record of the 1961 conviction in support of the enhancement allegations regarding that conviction; and (4) the trial court denied his right to a jury trial by deciding to impose consecutive sentences on all counts based on sentencing factors not found by a jury. We agree that the prosecution could not properly rely on extra-record evidence to establish the truth of the 1961 prior conviction allegation and reverse the true finding as to that allegation. Otherwise, we find Lawrence's arguments unavailing and affirm. FACTUAL AND PROCEDURAL BACKGROUND Lawrence, who owned a tile and swimming pool cleaning business, was a friend and business associate of Jim K. From July to November 2004, Jim's 9-year-old twin sons, K. and Ko., helped Lawrence with his cleaning pool route, usually on alternate Fridays, for which Lawrence paid them $30 to $50 a day. By late November 2004, Jim and his wife, Christine, became concerned that Lawrence was regularly giving the boys extra money and toys, spending quite a bit of time with the boys and often bringing the boys home late; based on these concerns, they did not allow K. and Ko. to see Lawrence any more. In late January 2005, K. and Ko. told Christine that Lawrence had sexually abused them, prompting Christine to call Child Protective Services and the police. (All further dates are in 2005 except as otherwise noted.) On February 22, a forensic interviewer at the Chadwick Center of Children's Hospital (Armida Valencia) separately interviewed 2

the boys. San Diego Police Detective Susan Righthouse observed both interviews, which were videotaped, through a one-way mirror. During the interviews, the boys described various incidents of oral copulation and other sexual activities they had had with Lawrence between July and November 2004, including one incident that occurred at a pool house bathroom at the home of one of Lawrence's clients and one that occurred when Lawrence took K. to a nudist camp. K. and Ko. were examined by a sex trauma nurse for signs of physical trauma or sexual related injuries, but were found to have none. On February 22, Detective Righthouse had K. make a pretext phone call to Lawrence from the police station. K. told Lawrence that his friend Zach was threatening to tell adults about "all that stuff we talked about" and asked what he should do. Lawrence initially responded "let's see, uh, kill him" but then urged Ko. to "settle it" with Zach by giving him money, toys and Pokeman cards. When Ko. inquired how he should respond if his mother asked about "stuff like that," Lawrence told him to deny that anything happened and tell her that Zach was mad at him and lying to get him in trouble. Shortly thereafter, Ko. ended the call. Police detectives obtained search warrants for Lawrence's apartment, his truck and his storage unit. On February 26, 2005, officers arrested Lawrence and took him to the police station. Other officers conducted the searches, finding a Polaroid camera, an inflatable anatomically-correct female doll and a surround-sound chair, all of which the boys had previously described during their interviews; they also seized a computer, photographs and files.

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Detective Righthouse interviewed Lawrence, who admitted that on numerous occasions he had taken the boys to his apartment and taken Polaroid pictures of them in the nude. He admitted that he had orally copulated each of them once and that although the boys had told the officers something happened nearly every time either or both of them were with him, it was "probably . . . not every time." Lawrence also confessed that he had encouraged the boys to simulate sexual intercourse with the inflatable doll, but denied that either of the boys had orally copulated him or engaged in sodomy with him, that he ever encouraged them to orally copulate each other or that he had ever orally copulated them at a client's home. Detectives Righthouse and Thomas Kinney interviewed Lawrence a second time on February 22. During this interview, Lawrence admitted that he had taken the boys to his apartment, engaged in sexual acts with them and photographed them with his Polaroid camera while they were engaged in sexual activities. Initially, Lawrence said that he had given the boys "an occasional oral copulation blow job," "at least once," although he later admitted that he had done so about five times each. He maintained, however, that he had not allowed the boys to touch him and that he had turned down their offers to orally copulate him. Later in the interview, Lawrence admitted that on one occasion one of the boys laid on top of him while they were both nude, with the boy's penis touching his buttocks. When asked whether he ever used his hands to arouse the boys sexually, Lawrence responded "[o]h, yeah, definitely," indicating that he had "masturbated" them and rubbed his hands over their buttocks and the rest of their bodies. He also admitted that he had 4

orally copulated both boys in his client's pool house bathroom in late September 2004 and again in the horse shed of their parents' house when he was invited over for dinner later in the year. The district attorney filed an information charging Lawrence with 13 counts of lewd acts with a child under the age of 14 and alleging that Lawrence had previously been convicted of child molestation, two serious felonies and three prior "strikes." At trial, the prosecutor introduced evidence of the foregoing and called the boys, who testified regarding instances in which Lawrence had touched their penises, orally copulated them and had them orally copulate each other or him. They also testified that every time Lawrence orally copulated them, he gave them extra money, which he called "bonus bucks." They further testified that Lawrence told them not to tell anyone about their activities because, if they did, they might get in trouble and he would go to jail. Lawrence called witnesses who testified that they had seen the boys with him on various occasions and not seen anything strange. He also introduced expert medical testimony that he suffered from numerous health problems, including chronic pancreatitis, an enlarged prostate and Peyronies disease, which causes scarring in the spongy bodies that form the erectile part of the penis and would have made it "extremely unlikely" that he would have been able to achieve and maintain an erection similar to what the boys described. The defense expert admitted, however, that he had not tested Lawrence to determine whether Lawrence could achieve an erection and that the location of the plaque that Lawrence had from the Peyronies disease could cause his penis to "bend straight up." 5

A jury convicted Lawrence of 11 of the charges, acquitted him of two of the charges and found that 10 of the 11 guilty counts involved substantial sexual conduct between him and the victims. In a bifurcated proceeding, the court found that Lawrence was the person who suffered the prior convictions and the jury found that all the prior conviction allegations were true and that Lawrence qualified as a habitual sex offender. The court sentenced Lawrence to 75 years to life for each conviction, consecutive, for a total of 825 years to life, stayed imposition of sentence on certain enhancements and ordered Lawrence to pay certain fines and victim restitution. Lawrence appeals. DISCUSSION 1. Exclusion of the Proposed Defense Expert During trial, Lawrence brought a motion to admit expert testimony regarding the veracity of the children's reports of sexual abuse. Specifically, Lawrence proposed to call Dr. William Dess, a child and family psychologist in private practice who regularly conducted child custody evaluations for the family law courts in San Diego. At a hearing under Evidence Code section 402, Dr. Dess testified that he had received training on suggestibility in children and how they process and articulate information and conducted "hundreds" of forensic psychiatric evaluations of children, 15 to 20 percent of which involved allegations of sexual abuse. He testified in part that, in his experience, approximately 60 to 70 percent of children's reports of such abuse were false or exaggerated, but that parents nonetheless tended to believe their children's allegations in this regard and could influence the child through verbal and nonverbal cues.

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Defense counsel argued that Dr. Dess's proposed testimony was a proper subject for expert testimony because it related to matters beyond the ordinary experience of jurors and that his client was entitled to present a defense that the boys might have been mistaken or not telling the truth in accusing Lawrence of sexual abuse, particularly in light of the fact that what they originally told their parents changed over time. The prosecutor argued that Dr. Dess did not qualify as an expert on the subject because his experience was primarily in family law cases where custody was contested (such that the parents might be prone to manipulating their children into making false accusations against the other parent), and because the proposed testimony was not a proper subject for expert testimony. The court denied Lawrence's request. It concluded that insofar as Lawrence proposed to call Dr. Dess to testify that children tell lies, the subject matter was not beyond the ordinary experience of jurors and thus not a proper subject matter for expert testimony. (See Evid. Code,

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