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People v. Callahan8/18/1999
APPEAL from a judgment of the Superior Court of Kern County. Clarence Westra, Judge.
A jury found appellant Louis Edward Callahan guilty of committing a lewd or lascivious act upon a child under the age of 14 years. (Pen. Code, § 288, subd. (a).) The child was appellant's 9-year-old daughter. The jury also found that appellant previously had been convicted of two serious or violent felonies within the meaning of California's Three Strikes Law (§ 667, subds. (b) through (i); § 1170.12.) The two prior convictions were another section 288, subdivision (a) violation and an assault with a deadly weapon (§ 245, subd. (a)(1)). The court sentenced appellant to a term of 35 years to life. This consisted of 25 years to life for the current section 288, subdivision (a) conviction, plus a 5-year enhancement under section 667, subdivision (a), for each of his two prior felony convictions. On this appeal he contends (1) various evidentiary rulings made by the trial court deprived him of a fair trial, (2) the trial court erred in excusing one juror for cause and in refusing to excuse another juror, and (3) his sentence of 35 years to life "violates the law in several ways." As we shall explain, we find no error warranting reversal and will affirm the judgment.
In a criminal action in which the defendant is accused of a criminal offense, Evidence Code section 1108 permits the prosecution to present "evidence of the defendant's commission of another sexual offense or offenses ... if the evidence is not inadmissible pursuant to Section 352." In the published portion of this opinion, we address the issue of how a defendant may rebut such evidence. We conclude that when the prosecution introduces evidence under Evidence Code section 1108 of the defendant's commission of another sexual offense or offenses, the defendant is not precluded from introducing evidence of specific instances of his good behavior under similar circumstances.
FACTS
Nine-year-old Brandi, the victim in this case, lived with her brother, Louis, in the home of their mother, Evelyn. Also living in Evelyn's home were Brandi's four half-sisters and a half-brother. On or about August 9 or 10, 1996, Brandi and Louis spent the night at the home of appellant, their father. Appellant lived with his girlfriend Kelsie, their two children Kwmayne and Marion, and Kelsie's daughter Nefertiti. On the day in question, appellant picked up Brandi and Louis from Evelyn's house at about 10:30 or 11 in the morning. Appellant brought them to Kelsie's house. Later that day appellant, Kelsie, Brandi and Louis attended a barbecue at the home of appellant's sister Jerrelyn. After the barbecue they returned to Kelsie's house. From about 8 p.m. until 11 p.m. appellant was away from Kelsie's house. During this time appellant was visiting a woman named Tavonna. That night Brandi, Louis, and Nefertiti slept in the living room of Kelsie's house. Nefertiti was 2 or 3 years old. Marion was a baby. According to Kelsie, Marion slept "right next to" the bedroom shared by Kelsie and appellant.
Sometime during the night, appellant entered the living room. Brandi was wearing a shirt and underwear. Appellant rubbed Brandi's vaginal area. Brandi described this area as "my private." The next day Brandi and Louis came home to Evelyn's house. When Brandi and Louis had been back at Evelyn's house for 3 or 4 days, Brandi's half-sister Lacriettia told Evelyn that Brandi wanted to talk to Evelyn. Brandi then told Evelyn that appellant had touched her. The next day Evelyn took Brandi to the hospital for an examination. While they were at the hospital, Brandi spoke to Deputy Sheriff Christopher Speer. According to Deputy Speer, Brandi told Spee
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