Filed 3/27/14 P. v. Craddock CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

ROGER RAMON CRADDOCK,

 Defendant and Appellant.

 G047347

 (Super. Ct. No. 09WF1069)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Lance 

Jensen, Judge. Reversed in part, affirmed in part.

David P. Lampkin, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and 

Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
2

After two trials, Roger Ramon Craddock was convicted of 11 counts of 

lewd conduct with a child under age 14 and one count of forcible lewd conduct with a 

child under age 14. The first jury found him guilty of four counts (counts 2-5), but could 

not reach a verdict on the remaining counts. The second jury convicted Craddock of the 

remaining counts. The trial court sentenced Craddock to a determinate term of eight 

years on count 1, plus 11 consecutive indeterminate terms of 15 years to life on the 

remaining counts pursuant to the “One Strike” law. 

Craddock’s sole contention on appeal is that his convictions on counts 6 

and 7 violated the state and federal Constitutional protections against double jeopardy, 

because the second jury could have used the same facts to find him guilty of counts 6 and 

7 as the first jury used to find him guilty of counts 2, 3, 4 and 5.1 We agree with 

Craddock, and reverse the convictions on counts 6 and 7 only. The Attorney General 

also correctly asserts the abstract of judgment does not properly reflect the trial court’s 

imposition of sentence. Consequently, we have also ordered the clerk of the superior 

court to correct the abstract of judgment. As modified, the judgment is affirmed.

FACTS AND PROCEDRUAL HISTORY

In March 2011, the Orange County District Attorney filed a 12-count, first 

amended information alleging Craddock committed lewd acts with his four 

granddaughters, A.C. (count 1), C.C. (counts 2-7), M.C. (counts 8-10), and Mi.C. (counts 

11-12).

2 All of the counts pertaining to C.C. were alleged to have occurred between 

January 1, 1995 and December 31, 1999. However, each count also described the 

specific act Craddock was alleged to have committed. Count 2 specified the act as 

 

1 Counts 6 and 7 were renumbered counts 2 and 3 in the second trial. We retain 

the designation counts 6 and 7 for simplicity.

2 Craddock’s appeal is limited to his double jeopardy claim, which involves only 

the counts related to C.C. The other victims’ testimony as to the various types of acts and 

the locations where these acts occurred was substantially similar to C.C.’s. 
3

“rubbing vagina.” Count 3 alleged “finger - first time” and count 4 alleged “finger - last 

time.” Count 5 specified “oral copulation” as the act. Similarly, Count 6 alleged “dildo -

first time” while count 7 alleged “dildo - last time.” 

The jury in Craddock’s first trial convicted him on counts 2 through 5, but 

the jury was unable to reach a verdict on the remaining counts. The jury in Craddock’s 

second trial convicted him on all of the remaining counts, including counts 6 and 7, and 

also found true all of the sentencing enhancement allegations. 

C.C.’s Testimony

Craddock was the patriarch of a large extended family, including his four 

granddaughters A.C., C.C., M.C., and Mi.C.3 The extended family met for holidays and 

special events, frequently at Craddock’s home or at one of the various properties he 

owned in the desert and mountains. 

C.C. was born in 1989 and 21 years old when she first testified. At the first 

trial, C.C. testified she visited Craddock’s home on average three to five times a week 

from the time she started preschool until she turned nine. After age nine, C.C. spent less 

time with Craddock, but she maintained regular contact with him, including 

accompanying him on occasional camping trips. 

C.C. was three or four years old when Craddock took her into a bedroom 

and showed her a video she later realized was pornography. She was about age six when 

he took her into his bedroom, removed her clothes, and rubbed her body, breasts, and 

vagina. This type of touching continued until she turned 17 years old, and it occurred at 

Craddock’s home, her home, Craddock’s trailer in the desert, and his ranch in the 

Sequoias.

C.C. testified Craddock often rubbed her breasts and forced her hand to 

touch his penis. He also put his hand between her legs when they were in a car or the 

 

3 Craddock’s adopted daughter, L.R., testified under Evidence Code section 1108. 
4

Jacuzzi. C.C. also testified Craddock licked her vagina, penetrated her vagina with his 

fingers, and penetrated her vagina with a blue dildo. He orally copulated her every time 

she spent the night at his house, and he digitally penetrated her the majority of the times 

she saw him. Oral copulation and digital penetration continued until she was 17 years 

old, while the penetration with the dildo occurred only seven or eight times and stopped 

before she was age 17.

C.C.’s testimony in the second trial was substantially the same as in the 

first trial. At the second trial she recalled the video Craddock showed her during a family 

gathering at Craddock’s home. She also said Craddock French kissed her every time she 

visited him, kissed her breasts, squeezed her breasts and butt, licked her vagina, and 

penetrated her vagina with his fingers. He would also cop a “quick feel” through her 

clothes if someone was nearby, or he would force her to touch his penis.

C.C. said Craddock penetrated her vagina with a royal blue dildo several 

times, and that he put the dildo over his penis and secured it with a string around his hips. 

The dildo penetrated her vaginal area, and it was very painful. Craddock began using the 

dildo with C.C. when she was six or seven. Fondling and digital penetration continued 

until age 17, but oral sex stopped when she turned 13 or 14 years old.

In both trials, C.C. claimed Craddock told her to keep what they were doing 

a secret, and that he told her he would get into trouble and kill himself if she said 

anything. C.C. kept the secret for many years, but in February or March 2009 she learned 

that Craddock had also molested other young girls in the family, including her sister, 

M.C., and her cousins, A.C. and Mi.C. The molestations came to light after Mi.C. began 

having problems at school. Mi.C. told her mother Craddock had molested her, and 

Mi.C.’s parents contacted the police.

Other Prosecution Evidence

Police officers searched Craddock’s various properties, but did not find any 

evidence of a sexual nature. The police also arranged to record two covert telephone 
5

calls between C.C. and Craddock. Craddock did not deny molesting C.C. In fact, he 

essentially admitted molesting C.C. during the calls. He dissuaded her from talking to a 

counselor about it, and he claimed the molestations probably occurred because C.C.

looked so much like her grandmother. He told C.C. he did not want to go to jail, and that 

it was just a “[b]ad situation that happened.”

The prosecution also called an expert on child sexual abuse accommodation 

syndrome to testify about why children often do not disclose sexual abuse when it 

happens.

Defense

At trial, Craddock called several character witnesses who universally 

denied ever having seen any improper contact between Craddock and the victims.

Jury Question

During closing argument in both trials, the prosecutor provided the jury 

with a chart of the charges that listed the crimes in alphabetical order and listed specific 

acts on which the prosecutor sought to rely to prove each count. 

The second jury submitted the following question during deliberations: “Is 

it the job of the jury to make a determination for each charge based upon the specific act 

identified in each charge on the prosecutor’s worksheet?” (Italics added.) The court 

responded, with the parties’ acquiescence, as follows: “The Prosecutor’s worksheet was 

given to you as an aid to assist you in knowing what charges, verdicts and findings are for 

Counts 1 through 8 as well as the necessary lesser included charges to those Counts. The 

verdict forms also outline the individual charges/counts and any special 

allegations/findings attached to those Counts as well as the necessary lesser included 

offenses to those Counts. Please refer to the jury instructions for guidance as to the 

elements of each of the crimes and/or allegations as well as for any other matters you 

need to consider.”
6

DISCUSSION

Craddock asserts that the manner in which the second trial was conducted 

created a risk the second jury convicted him on counts 6 and 7 based upon the same acts

which the first jury used to convict him on counts 2, 3, 4, and 5. He contends the trial 

court (1) abused its discretion under Evidence Code section 352 (section 352) by 

permitting the prosecutor to introduce C.C.’s testimony from the first trial as propensity 

evidence (Evid. Code, §§ 1101, subd. (b), 1108), (2) failed to modify CALCRIM No. 

1191, an instruction on evidence of uncharged crimes, to ensure the second jury did not 

rely on the same facts as the first jury to convict on counts 6 and 7, and (3) failed to link 

counts 6 and 7 to the use of a dildo when the jury submitted its question about the use of 

a dildo. According to Craddock, these three circumstances produced uncertainty about 

the factual basis of the second jury’s conviction on counts 6 and 7. Therefore, Craddock 

asserts his convictions on counts 6 and 7 violate the double jeopardy provisions of the

state and federal Constitutions. 

We reject Craddock’s first two contentions. As Craddock concedes, the 

trial court could properly admit C.C.’s testimony about acts related to counts 2 through 5 

at the second trial under Evidence Code sections 1101, subdivision (b) and 1108. 

However, Craddock claims the court abused its discretion under section 352 by not 

considering the potential prejudicial impact of C.C.’s testimony, the likelihood of juror 

confusion on the issues this testimony would cause, and that the court failed to consider 

less prejudicial alternatives. We find no error.

The very factors Craddock cites are endemic to the section 352 analysis 

performed by the trial court. (People v. Falsetta (1999) 21 Cal.4th 903, 917.) And, it is 

well settled that when ruling on the admissibility of evidence under section 352, “‘a trial 

court need not expressly weigh prejudice against probative value, or even expressly state 

it has done so. All that is required is that the record demonstrate the trial court
7

understood and fulfilled its responsibilities under Evidence Code section 352. 

[Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 213; see also People v. Catlin

(2001) 26 Cal.4th 81, 122 [explanation of court’s weighing process not required]; People 

v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6 [rejecting as prior decisions that required an 

explicit weighing of probative value and prejudice].)

Here, the same court presided over both trials. In the first trial, the 

prosecution moved to introduce evidence of uncharged crimes pursuant to Evidence Code 

sections 1101, subdivision (b) and 1108. The prosecutor’s motion discussed how the 

court should conduct its section 352 analysis of this conduct, and in the second trial the 

trial court specifically stated it had reread the prosecution’s motion and the record of the 

court and counsel’s prior discussions on the topic. Furthermore, the trial court not only 

considered the prejudice caused by the propensity evidence, he offered Craddock the 

alternative of bifurcating the proceedings to keep the fact of Craddock’s earlier 

convictions from the jury. Thus, the record is sufficient to support an inference that the 

trial court was aware of its obligation to balance probative value and prejudice under 

section 352 and performed the requisite analysis. (See People v. Padilla (1995) 11 

Cal.4th 891, 924, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 

823, fn.1.)

With respect to the court’s purported failure to modify CALCRIM No. 

1191, the propensity evidence instruction, it is well settled “‘[a] party may not complain 

on appeal that an instruction correct in law and responsive to the evidence was too 

general or incomplete unless the party has requested appropriate clarifying or amplifying 

language.’ [Citations.]” (People v. Mace (2011) 198 Cal.App.4th 875, 882.) CALCRIM 

No. 1191 correctly describes the proper use of evidence the defendant committed other, 

uncharged, sex offenses. (People v. Villatoro (2012) 54 Cal.4th 1152, 1168.) Defense 

counsel did not request a modification of the instruction, and Craddock does not explain 
8

exactly how the instruction should have been modified to avoid the double jeopardy 

problem he now asserts.

On the other hand, Craddock’s final claim has merit. “The double jeopardy 

clauses of the Fifth Amendment to the United States Constitution and article I, section 15, 

of the California Constitution provide that a person may not be twice placed ‘in jeopardy’ 

for the ‘same offense.’ ‘The double jeopardy bar protects against a second prosecution 

for the same offense following an acquittal or conviction, and also protects against 

multiple punishment for the same offense. [Citations.]’ [Citation.]” (People v. Anderson

(2009) 47 Cal.4th 92, 103-104.) “Double jeopardy includes an issue preclusion 

component: once an issue of ultimate fact has been resolved in a criminal proceeding, it 

cannot be relitigated in a subsequent prosecution or retrial. [Citations.]” (Brown v. 

Superior Court (2010) 187 Cal.App.4th 1511, 1524 (Brown).)

Craddock primarily relies on Brown to support his double jeopardy claim. 

In Brown, the defendant was charged with 23 counts of various sexual offenses against 

two minors. (Brown, supra, 187 Cal.App.4th at p. 1514.) The information alleged the 

crimes took place during a specific time period, but did not specify the act on which each 

count was based, and neither the instructions nor the verdict forms limited the counts to 

specific occasions. (Ibid.) One jury convicted the defendant of some counts, acquitted 

him of others, and hung as to the remainder. (Id. at p. 1523.) The trial court declared a 

mistrial on the hung counts. (Ibid.) The defendant objected that double jeopardy 

precluded retrial of the hung counts. (Ibid.) The trial court ruled the collateral estoppel 

aspect of double jeopardy precluded retrial of some but not all of the hung counts. (Ibid.) 

The defendant filed a petition for writ of mandate or prohibition in the appellate court, 

challenging the trial court’s decision.

The appellate court explained, “Generally, a defendant bears the burden of 

establishing facts showing that he or she has been placed in double jeopardy by reason of 

a prior conviction or acquittal. [Citations.]” (Brown, supra, 187 Cal.App.4th at p. 1525.) 
9

However, citing People v. Smith (2005) 132 Cal.App.4th 1537, the appellate court 

determined that where the prosecution uses generic pleading, and the fact that neither the 

instructions nor the verdict forms tied any particular count to a particular incident, the 

burden shifts to the prosecution when the defendant makes a “nonfrivolous showing that 

he faces prosecution for an offense for which he was formerly placed in jeopardy.” 

(Brown, at p. 1528.) 

Applying Brown to the case at bar, we believe Craddock satisfied his initial 

burden and the burden shifted to the prosecution. The operative information for both 

trials alleged Craddock committed five lewd acts with C.C. between 1995 and 1999 with 

each count alleging a specific sex act for each count. If our inquiry were limited to the 

language of the information, we would agree with the Attorney General that double 

jeopardy is not implicated by the second verdict, because the information clearly alleged 

count 6 as “dildo - first time” and count 7 as “dildo - last time.” But neither the jury 

instructions, nor the verdict forms, tracked the language of the charging document. Thus, 

while the information specifically alleged Craddock used a dildo in the commission of 

counts 6 and 7, the verdict forms merely asked the jury to find Craddock guilty or not 

guilty of a “[v]iolation of Section 288(a) . . . as charged in . . . the information.” 

Consequently, unless the court also provided the jury with a copy of the first amended 

information, something the Attorney General does not claim the court did, there is no 

way to tell which specific acts formed the basis for the second jury’s verdict on counts 6 

and 7. And there is no way to tell if the second jury relied on the same acts the first jury 

used as the basis for counts 2 through 5, because the same verdict forms and jury 

instructions were used in both trials.

Furthermore, we do not believe the Attorney General’s reliance on the 

arguments of the counsel changes the analysis. First, the trial court instructed the jury 

with CALCRIM No. 200. This standard instruction tells the jury “[y]ou must decide 

what the facts are,” and “[i]f you believe that the attorneys’ comments on the law conflict 
10

with my instructions, you must follow my instructions.” The jury instruction for Penal 

Code section 288, subdivision (a) offenses (CALCRIM No. 1110) given in this case 

merely referred to all counts alleging Penal Code section 288, subdivision (a) violations, 

and did not list specific acts related to those counts. Consequently, assuming the jurors 

referred to the chart during deliberations based on the arguments of counsel, they would 

not have necessarily relied on the parties’ closing arguments to clarify which specific acts 

were linked to counts 6 and 7.

Second, contrary to the Attorney General’s assertion, the prosecutor did not 

relate specific instances of lewd conduct to any particular counts during his closing or 

rebuttal arguments at either trial. And, while defense counsel did tell the jury that count 6

was “dildo - first time” and count 7 was “dildo - last time,” as noted above, the court 

instructed the jury that it “must follow the law as I explain it to you . . . . If you believe 

the attorneys’ comments on the law conflict with my instructions, you must follow my 

instructions.” And again, neither the jury instructions, nor the verdict forms linked 

counts 6 and 7 to the use of a dildo.

Having found Craddock made his prima facie showing under Brown, the 

inquiry then focuses on what the jury decided. “‘To decipher what a jury has necessarily 

decided, we held that courts should “examine the record of a prior proceeding, taking into 

account the pleadings, evidence, charge, and other relevant matter, and conclude whether 

a rational jury could have grounded its verdict upon an issue other than that which the 

defendant seeks to foreclose from consideration.” [Citation.]’ [Citation.]” ‘If there is to 

be an inquiry into what the jury decided, the “evidence should be confined to the points 

in controversy on the former trial, to the testimony given by the parties, and to the 

questions submitted to the jury for their consideration.” [Citations.]’ [Citation.]” 

(Brown, supra, 187 Cal.App.4th at p. 1524.) “‘To identify what a jury necessarily 

determined at trial, courts should scrutinize a jury’s decisions, not its failures to decide.’ 
11

[Citation.] ‘The inquiry “must be set in a practical frame and viewed with an eye to all 

the circumstances of the proceedings.” [Citation.]’ [Citation.]” (Ibid.)

Here, the first jury found Craddock guilty of counts 2 through 5 in the first 

trial, and the first jury could not reach a verdict with respect to counts 6 and 7 which 

alleged the use of a dildo. Under the circumstances, we cannot fault Craddock for his 

failure to enter a plea of not guilty to counts 6 and 7 in the second trial due to having been 

placed in jeopardy by the first trial. (See Pen. Code, §§ 1016, 1017; People v. Memro 

(1995) 11 Cal.4th 786, 821.) It is equally clear the first jury made no decision on the 

precise issue raised here, which is whether Craddock used a dildo to commit counts 6 and 

7. Thus, retrial was permissible under both the state and federal Constitutions, and if the 

verdict forms had contained the dildo language from the information, we do not believe 

Craddock would have made his prima facie case. However, under the unique facts 

presented here we believe Craddock satisfied his initial burden and the burden shifted, 

but the Attorney General has failed to prove that no double jeopardy violation occurred. 

(Brown, supra, 187 Cal.App.4th at p. 1527.) 

Finally, the trial court’s incomplete response to the jury’s question 

referenced above did nothing to limit the jury’s use to only two specific acts of the 

hundreds of lewd acts C.C. testified Craddock committed during the relevant time period.

Craddock is right on this point. The trial court had an opportunity to advise the jury that 

counts 6 and 7 were, in fact, based on Craddock’s use of a dildo with C.C. The court 

chose not to do so, and neither party objected. In short, while we accept the validity of 

the second trial, the record fails to convince us the jury relied on Craddock’s alleged use 

of a dildo to reach its verdict on counts 6 and 7. 

DISPOSITION

The convictions on counts 2 and 3 in the second trial (counts 6 and 7 in the 

first trial) are reversed and the sentence on those counts vacated. The judgment is 

modified to reflect a determinate prison term of eight years on count 1, plus 9 consecutive 
12

indeterminate terms of 15 years to life on the remaining counts. And, as requested by the 

Attorney General, the abstract of judgment is corrected to reflect the imposition of 

consecutive, indeterminate terms of 15 years to life on each of counts 2, 3, 4, 5, 8, 9, 10, 

11 and 12. The clerk of the superior court is directed to correct the abstract of judgment 

and forward it to the Department of Corrections and Rehabilitation. As modified, the 

judgment is affirmed. 

THOMPSON, J.

WE CONCUR:

O’LEARY, P. J.

FYBEL, J.