Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA078136, Robert M. Martinez, Judge.
Cannon & Harris and Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
This appeal arises out of the conviction of defendant Dwight Arthur Baker for committing four counts of sexual abuse against his granddaughter, whom we refer to as Jane Doe to protect her privacy. The jury found defendant guilty of committing a lewd act upon a child, on or between June 7, 1999, and June 6, 2001, in violation of Penal Code section 288, subdivision (a); continuous sexual abuse (§ 288.5, subd. (a)) on or between June 7, 2001, and June 7, 2005; a lewd act upon a child (§ 288, subd. (c)(1)) on or between June 7, 2005, and November 30, 2006; and sexual penetration by a foreign object (§ 289, subd. (i)) on or between June 7, 2005, and November 30, 2006. Having waived his right to a jury trial on the alleged prior convictions, the trial court found the recidivism allegations true—that defendant had suffered two serious or violent felony convictions under the three strikes law (§ 1170.12, subds. (a)-(d); § 667, subds. (b)-(i)) and one prior conviction for purposes of the five-year enhancement under section 667, subdivision (a)(1).
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant received a 10-year determinate term plus an indeterminate sentence of 150 years to life, consisting of 75 years to life on count 1 (25 years to life under section 667.61, subdivision (a), tripled as a third strike) plus the five-year enhancement under section 667, subdivision (a)(1), 25 years to life plus the five-year enhancement on count 2, and 25 years to life on counts 3 and 4 all to run consecutively.
In his sole appellate contention, defendant argues the trial court abused its discretion by admitting evidence of his prior sex crimes in violation of Evidence Code section 352. We disagree and affirm.
STATEMENT OF FACTS
Prosecution Case
Jane was born in 1991. At the time of trial, she was 15 years old and in the tenth grade in high school. Defendant, her grandfather, was 70 years old at the time of trial. Jane has two brothers, T. (10 years old) and S. (24 years old), and two half-sisters. During the time she was 13 to 15 years old, she lived on Foster Avenue in Baldwin Park in the home of defendant, her grandmother Darlene, her parents, brothers, and her aunt. Before that, when she was 10 to 13 years old, she lived on Baldwin Park Boulevard for approximately three years with her parents and younger brother. In the years before that, she lived in Duarte with her parents, brothers, and grandmother. While Jane resided in the Baldwin Park Boulevard home, defendant lived on Dundry Boulevard in Baldwin Park, where he had moved from an apartment building in Duarte.
When Jane was seven or eight years old and living in Duarte, defendant touched the skin of her breasts and vaginal area with his hand. They were alone in the bedroom of defendant’s apartment, while the rest of her family was at her house. The unwanted touching lasted approximately 30 seconds. She told him to stop and he did. Jane told no one about the incident.
Defendant sexually assaulted her again approximately six years later, when Jane was living at the Baldwin Park Boulevard residence. At least three of these similar instances occurred when she was sleeping at defendant’s Dundry residence. While she slept on the living room couch at night, defendant touched her breasts and vaginal area both underneath and on top of her underwear and pajamas with his hand for 30 seconds to a minute. He said nothing, but at times would make moaning or groaning noises. She tried to pull his hand away and told him to stop, but he resisted and kept it there. She was the only one sleeping in the living room. There were no lights on. She did not scream or call for help; she was frightened and felt helpless.
When Jane was approximately 13 years old and her family moved into her grandparents’ house on Foster Avenue, she slept in a bed in the dining room area. Defendant engaged in the same kind of unwanted sexual touching. At night, on approximately six occasions, while she was in bed, he would reach under her sleeping clothes and touch her breasts and vaginal area. He penetrated her vagina with his finger approximately three times. He would also kiss her lips and stomach, and suck on her nipples while moaning. She would try to push him away, but defendant would overpower her. During these assaults, her Aunt Faith slept in a bed in the same room, while using a loud sleep apnea machine to assist her breathing—she was a heavy sleeper.
On four to six occasions, defendant sexually assaulted Jane in the garage by the same kind of unwanted touching. On at least three occasions, while they remained clothed, he would rub his erect penis against her anus. All these episodes lasted less than a minute. She neither called for help nor told anyone about defendant’s actions because she was frightened and did not want to “get in trouble” or cause trouble to her parents. Her parents relied on defendant financially and could not afford a home of their own.
Finally, in February or March of 2006, Jane told her parents about defendant’s inappropriate sexual conduct. They believed her and asked her to report any future misconduct to them, but they also told her that they would not be able to afford the house payments if defendant were jailed. Her parents spoke to defendant about her disclosures, but soon afterwards, defendant came downstairs and engaged in the same kind of inappropriate sexual touching of her genitals. Jane immediately told her mother, who was sympathetic, but apparently took no action. Jane’s mother did not inform the police; she knew that defendant had previously “inappropriately touched two other granddaughters.” The next time defendant inappropriately touched her, Jane told her high school teacher.
The prosecution presented testimony from defendant’s other two granddaughters as to prior sexual misconduct. The trial court explained to the jury the witnesses “will be testifying to uncharged acts, that is, other than those that are charged in this case,” and that their testimony could be considered for a limited purpose, as would be specified in the jury instructions at the close of evidence.
Katherine W. testified that defendant was her grandfather. In 1992, she was approximately five years old. At that time, she lived in Los Angeles with her mother and sister Kira, who was one year older. Defendant repeatedly penetrated her vagina with his fingers. The assaults took place several times a week in various locations—at his apartment, at church, and in his car. The episodes lasted approximately 15 minutes. Usually she was alone with him, but sometimes Kira was present too. Sometimes she was naked; sometimes he reached under her clothes. Defendant’s actions were painful to Katherine. On one occasion, she saw defendant washing blood and urine out of her underwear after he had penetrated her. Katherine also saw defendant touch Kira’s vaginal area. There were instances in which defendant would tell the sisters to touch his penis. She objected, but he ordered them to do so, or they would “get in trouble.” At times, he rubbed his penis against their vaginal areas. Most of the assaults occurred in a spare bedroom in his apartment that had a mattress on the floor. Once, after penetrating both sisters, he ordered the naked girls into the closet because someone came into the apartment. Katherine had not seen defendant since she was five and did not recognize him at trial.
Defense Case
S., defendant’s grandson, is nine years older than his sister Jane. He lived with his grandparents in the Dundry residence, while Jane and the rest of the family lived in other residences. S. lived with his grandparents to be within walking distance to work. After his aunt (not Aunt Faith) died, he moved out of the living room and into her bedroom, and Jane and the rest of the family moved into the grandparents’ home. S. slept with his door open and could see into the living room where Jane slept. He worked during the day and never saw or heard defendant come into the living room at night when Jane was there. She never told him that she had concerns about sleeping there. Jane and defendant got along well. She only became angry when defendant insisted she do her chores or help around the house. When the grandparents and his whole family moved into the house on Foster Avenue, Jane became jealous about having Aunt Faith, who was mentally handicapped, live with them. Jane never expressed any concern about going into the garage. S. did not notice that Jane would try to avoid being in defendant’s company.
DISCUSSION
Defendant contends the trial court abused its discretion by admitting, over his timely Evidence Code section 352 objection, Katherine’s testimony as to defendant’s prior acts of sexual abuse. As he did below, defendant argues evidence of his uncharged sexual offenses was unduly prejudicial because the circumstances of the charged offenses against Jane were dissimilar, and the prior offenses were more egregious and remote in time. As we explain, the trial court’s ruling was well within its discretion.
The prosecution sought to introduce evidence concerning defendant’s prior acts of sexual abuse against his granddaughters Katherine and Kira, pursuant to Evidence Code sections 1108, subdivision (a), and 1101, subdivision (b). Evidence Code section 1108, subdivision (a) provides: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” Evidence Code section 1101, subdivision (b), recognizes the legitimacy of admitting “evidence that a person committed a crime . . . when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.”
Evidence Code section 1101, subdivision (a) provides, subject to a variety of limitations and exceptions, that “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”
In People v. Falsetta (1999) 21 Cal.4th 903, 914-917, our Supreme Court held that recognition of the special case of evidence of a propensity to commit sexual offenses under Evidence Code section 1108 does not violate due process, particularly when the evidence is subject to the weighing process of Evidence Code section 352; cf., United States v. LeMay (9th Cir.2001) 260 F.3d 1018, 1025-1031 (upholding analogous federal evidentiary rule—Federal Rule of Evidence, rule 414—against due process and equal protection challenges).
During a hearing at the beginning of trial, the court considered defendant’s Evidence Code section 352 objection to the admission of the anticipated evidence of his prior sexual offenses. Upon consideration of the Evidence Code section 352 factors, the trial court found the anticipated testimony more probative than prejudicial. Defendant’s alleged sexual misconduct as to Jane was “of a similar nature” to that in the prior offenses. In comparison with the current allegations, the prior crimes were neither “excessively brutal” nor more likely to elicit the jury’s moral outrage. On the other hand, the anticipated testimony was relevant and probative as to defendant’s culpability for the current offenses and was not likely to require an undue consumption of time. The court also ascertained that defendant had entered a guilty plea with regard to the prior offenses, but the parties agreed that the fact of his prior conviction should not be admitted.
We review relevancy and Evidence Code section 352 rulings for abuse of discretion. (People v. Siripongs (1988) 45 Cal.3d 548, 574.) “A trial court abuses its discretion when its ruling ‘fall[s] “outside the bounds of reason.”’ [Citations.]” (People v. Waidla (2000) 22 Cal.4th 690, 714.) In People v. Abilez (2007) 41 Cal.4th 472, our Supreme Court made it clear that prior sex offenses were not to be considered inherently prejudicial: “‘Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.’ [Citation.]” (Id. at p. 502, quoting People v. Falsetta (1999) 21 Cal.4th 903, 917 (Falsetta).) The Falsetta decision had explained that in applying Evidence Code section 1108, “courts will retain broad discretion to exclude disposition evidence if its prejudicial effect, including the impact that learning about defendant’s other sex offenses makes on the jury, outweighs its probative value. [Citations.]” (Falsetta, supra, 21 Cal.4th at p. 919.)
Here, the record supports the trial court’s finding, and its ruling did not approach an abuse of discretion. The prior offenses bore strong similarities to the current ones, as they displayed defendant’s penchant for preying on his similarly aged granddaughters in his own residences by fondling their genitalia and penetrating their vaginas with his fingers. While defendant is correct that his sexual abuse of Katherine and Kira was more wide-ranging than that of Jane when she was their age, those differences were marginal at best and went to the weight, not the admissibility of the testimony. That is, the dissimilarities did not substantially militate against the trial court’s finding that the prior acts were highly probative of defendant’s disposition to commit sex crimes like those against Jane. (See People v. Mullens (2004) 119 Cal.App.4th 648, 659-660; People v. Branch (2001) 91 Cal.App.4th 274, 283.)
Nor is defendant correct in asserting the prior sex acts were “more inflammatory than the charged offenses.” (People v. Branch, supra, 91 Cal.App.4th at p. 283.) As the trial court found, the level of violence and the kinds of misconduct used in committing the uncharged acts were not essentially different from those used against Jane. In comparing the two sets of offenses, there were no particularly egregious or inflammatory details in the prior ones that would have caused undue prejudice to defendant. (See id. at pp. 283-284; People v. Soto (1998) 64 Cal.App.4th 966, 991.)
Defendant also argues he was potentially prejudiced because the jury never found out that he was convicted and sentenced in connection with the prior offenses, which might have “tempted” the jury to punish him for the prior conduct by convicting him of the current conduct. (See People v. Balcom (1994) 7 Cal.4th 414, 427 [“the jury was not tempted to convict defendant of the charged offenses, regardless of his guilt, in order to assure that he would be punished for the uncharged offenses, because the jury was aware he had been sentenced to a substantial prison term for the uncharged offenses”].) We agree with the Attorney General that defendant waived that argument by failing to present it below—indeed, when the trial court raised the issue of his prior conviction, the defense failed to argue that it should be placed before the jury. In any event, we fail to see how such evidence would have helped defendant. The record indicates he received a three-year sentence for a lewd act conviction in 1993. Thus, given the relatively short sentence and the fact that it had no deterrent value, it his difficult to imagine any potential benefit to having the jury consider it. Moreover, proof of a prior conviction would have made it all but impossible to argue that he did not commit the uncharged acts, which was a question of fact on which the prosecution bore the burden of proof.
Finally, the prior sex offenses were not “remote” in time for purposes of the Evidence Code section 352 analysis. There was only a lapse of six to eight years between the initial assault on Jane and those on Katherine and Kira. (See People v. Branch, supra, 91 Cal.App.4th at pp. 284-285 [holding prior acts 30 years old not remote as a matter of law]; People v. Waples (2000) 79 Cal.App.4th 1389, 1393-1395 [prior offenses between 15 and 22 years old not too remote].)
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.