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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

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 Ap peal, 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 1 1 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 co uld 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 o n 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 abst ract 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 modif ied, the judgment is affirmed.
FACTS AND PROCEDRUAL HISTORY In March 2011, the Orange County District Attorney filed a 12

- count, first
amended information a lleging Craddock committed lewd acts with his four granddaughters, A .C. (count 1), C .C. (counts 2

- 7 ), M .C. (counts 8

- 1 0 ), and Mi .C. (counts
1 1

- 1 2 )

. 2 A ll of the counts pertaining to C .C. were alleged to have occurred between January 1, 1995 and December 31, 199 9 . 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.” C ount 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 tria l convicted him o n 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 visit ed Craddock’s home on average three to five times a week
from t he time she started preschool until she turned nine . After age nine , C .C. spent less
time with Craddock , but she maintain ed 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 1 7 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 whe n 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 lick ed her vagina , penetrat ed her vagina with his fingers, and penetrat ed her vagina with a blue dildo

. He orally copulated her every time she spent the night at his house , and he digitall y 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 testim ony in the second trial was substantially the same as in the
first trial. At the second trial s he recalled the video Craddock showed her during a family gathering at Craddock’s home. She also said Craddock French kiss ed her every time she
visited him, ki ssed her breasts , squeez ed her breasts and butt , lick ed her vagina , and penetrat ed 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 Craddo c k 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

. C r addock began using the
dildo with C .C. w hen 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 woul d get into trouble and kill himself if she said anything. C .C. kept the secret for many years, but i n February or March 2 009 she learned
that Cradd ock 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 Craddo c k 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 telephone5

calls between C .C. and Craddock. Craddock did not deny molesting C .C. In fact, he essentially admitted mole sting 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 ca lled an expert on c hild s exual a buse a ccommodation

s yndrome to testif

y about why children often do not disclose sexual abuse when it happens. Defense At trial, Craddock called several character witness es 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 ord er 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 ac t identified in each charge on the prosecutor’s worksheet ? ” (Italics added

. ) The court responded, with the parties’ acquiescence, as follows: “The P rosecutor’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 lesse r included
offense s 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 w hich the second trial was conducted created a risk the second jury convict ed him on counts 6 and 7 bas ed upon the same acts
which the first jury used to convict him o n counts 2 , 3, 4, and 5 . He contends the trial court (1) abused its discretion under Evid ence Code section 352 (section 352) by permitt ing 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 uncharge d 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, t he
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, su bdivision (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 lik eli hood of juror
confusion on the issues this testimony would cause , and tha t 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 settl ed 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 court7

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
section s 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 Craddo ck the
alternative o f bifurcating the proceedings to keep the fact of Craddock’s earlier convictions from the jury. Thus, t he 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 C al.4th 800, 823, fn.1.) With respect to the court’s purported failure to modify CALCRIM No.
1191 , the pro pensity 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.) Defe nse counsel did not request a modification of the instruction, and Craddock does not explain8

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 pro tects 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 jeo pardy includes an issue preclusion
comp o ne n t: 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.4 th at p. 1514.) The info rmation 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. ( I

bid

. ) O ne jury convict ed 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 tri al 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 dec ision.

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.] ” ( Br o wn, 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 whe re the prosecution use s generic pleading, and the fact that neither the instructions nor the verdict forms tied any particular count to a particu lar 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 jeopa r dy .” ( Brown , at p. 1528.)

Applying Brown to the case at bar, w e believe Craddock satisfied his initial
burden and the burden shift ed 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 alleg ing 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,

w hile the information specifically alleged Craddock used a dildo in the commission of
counts 6 and 7 , the verdi ct 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, somet hing the Attorney General does not claim the court did, there is no way to tell wh ich 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

use d 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 co urt instructed the jury
with CALCRIM No. 200. This standard instruction tell s the jury “[y]ou must decide what the facts are,” and “[i]f you believe that the attorneys’ comments on the law conflict10

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 count s. 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.

Seco nd, 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, w hile defense counsel did tell the jury that count 6 was “di l do

- 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, n either the jury instructions, nor the verdict forms linked
counts 6 and 7 to the use of a dildo.

Having found Craddock ma de 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 forecl ose from consideration. ” [Citation.] ’ [Citat i on.]” ‘ 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 s ubmitted 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. ’1 1

[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

. ) I t is equally clear the first jury made no decision on the precise issue raised here, which is whether Craddock used a d ildo to commit counts 6 and 7. Thus, retrial was permissible under both the state and federal Constitution s , and if the
verdict forms had contained the dildo language f rom 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 i n complete 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 validit y 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 conviction s on counts 2 and 3 in the second trial ( counts 6 and 7 in the
first trial ) are reversed and the sentence on tho se counts vacated

. The judgment is
modified to reflect a determinate prison term of eight years on count 1, plus 9 consecutive12

indeterminate terms of 15 years to life on the remaining counts

. And, a s requested by the
Atto rney General, the abstract of judgment is corrected to reflect the imposition of consecutive, indeterminate term s of 15 years to life on each of count s 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.