Opinion
2d Crim. No. B298812
06-18-2020
THE PEOPLE, Plaintiff and Respondent, v. JUAN ANTONIO ESQUIVEL, Defendant and Appellant.
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Noah P. Hill, Acting Supervising Deputy Attorney General, Michael C. Keller, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17F-00701)
(San Luis Obispo County)
Juan Antonio Esquivel appeals the judgment entered after a jury convicted him of committing a lewd act upon a child (Pen. Code, § 288, subd. (a); count 1) and using a foreign object to sexually penetrate a child who was under the age of 14 and more than 10 years younger than the perpetrator (§ 289, subd. (j); count 2). The trial court sentenced him to six years in state prison. Appellant contends the court erred in admitting evidence of two prior uncharged sexual offenses under Evidence Code section 1108. He also contends the court violated hearsay rules by taking judicial notice of information in the record regarding his date of birth. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
STATEMENT OF FACTS
The Sexual Assault of M.
In November 2016, twelve-year-old M. was living in an apartment with her mother Olga and her siblings E. and R. M. had Valley Fever at the time and was being treated with Itraconazole.
Appellant, who is M.'s uncle, came to the apartment on November 12 along with M.'s father Alejandro, her adult cousin Arnulfo, appellant's wife Maria Sanchez, and several other extended family members. While the children watched movies, the adult men drank beer outside the apartment.
At about 10:00 p.m., M. and E. went to sleep in their bedroom. M. and E. each slept in their own beds and the children who were visiting slept on mattresses that had been placed on the floor of the bedroom. During the night, M. got up to go to the bathroom and saw appellant sitting in the living room. After using the bathroom, M. returned to her bed and fell back asleep.
Later that night, she awakened to find appellant hovering over her. He smelled of alcohol and was breathing heavily. M.'s pajama bottoms and underwear had been pulled down and appellant's fingers were inside of her vagina. After briefly closing her eyes, M. saw appellant leave the bedroom with her princess blanket.
A few minutes later, M. returned to the bathroom and washed her face in an effort to keep herself from crying. She was also menstruating at the time and changed her sanitary napkin. As she was returning to her bedroom after getting water from the kitchen, she saw appellant sitting on a couch in the living room. His eyes were closed and he was covered with the blanket he had taken from M.'s bedroom. Sanchez was asleep on another couch in the living room. When M. returned to her bed, she saw blood on her sheets that had not not been there before appellant sexually assaulted her. She also later felt pain in her vagina.
At about 3:00 a.m., appellant went to the garage where Arnulfo was sleeping, woke him up, and asked him if he wanted a ride home. Arnulfo replied that he wanted to spend the night there.
M., who had previously been a happy child, began isolating herself after the incident and became aggressive and angry. Two weeks after the assault, appellant and other family members returned to the apartment for Thanksgiving. When appellant sat next to M., she had a panic attack and began crying. Her heart raced, her stomach hurt, and she found it difficult to breathe. She lost consciousness and fell to the ground. Alejandro took her to another room and stayed with her for more than 30 minutes until the panic attack subsided. Alejandro asked M. what was wrong but she refused to tell him.
On December 4, M. went to Alejandro's house for an overnight visit. When it was time for bed, M. had another panic attack because she was afraid of being sexually assaulted again. Olga came to the house and asked M. what was wrong. M. eventually told Olga what appellant had done to her. She did not say anything earlier because she was embarrassed and feared that Olga would not believe her.
The next day, M. told her adult half-sister P.S. that she had been sexually assaulted by appellant. P.S. called the police. Although Olga was told not to contact appellant, she spoke with her mother about the assault and her mother subsequently told appellant. When M. was interviewed two days later, she reported that appellant had inserted his fingers into her vagina while she was asleep in her bedroom. She did not immediately report the incident because she was initially unsure whether appellant had assaulted her or whether her medication had caused her to hallucinate.
On December 9, appellant voluntarily went to the police station with Sanchez and spoke with Detective Eric Azarvand. Appellant denied the allegations against him and stated his belief that they had been fabricated by his sister Olga. When Detective Azarvand informed appellant that the allegations came from M., appellant claimed that she was on medication for Valley Fever that must have caused her to hallucinate. He also denied that woke up to use the bathroom on the night of the alleged assault.
Detective Azarvand also separately interviewed Sanchez at appellant's request. Sanchez said that she saw appellant walk toward the bathroom at about 3:00 a.m. She did not see appellant enter the bathroom as he disappeared for two to three minutes before returning to the living room. When the detective confronted appellant with this information, he initially said he could not remember using the bathroom but thought Sanchez would have been able to see him enter and leave the bathroom if he had done so. Appellant then said that he remembered using the bathroom.
The trial was held nearly three years after the incident. M. was still in therapy to help her cope with the sexual assault. After the incident, she no longer liked herself and began cutting herself even though she knew it was not her fault.
The Uncharged Acts Against P.S.
P.S., who was 22 years old at the time of trial, testified that appellant inappropriately touched her buttocks twice when she was 16 or 17 years old. The first time, P.S. was walking in her house when appellant deliberately brushed his hand across her buttocks. She did not say anything because she was shocked and did not know how to react. The second time, P.S. was washing dishes when appellant grabbed her right buttock and held it for approximately five to 10 seconds before walking away. P.S. was disgusted and afraid.
Appellant's Defense
Sanchez testified that on the night of the charged incident, she fell asleep on the couch after the children went to bed. At about 3:00 a.m., appellant woke up Sanchez and asked if they should go home. When Sanchez said they should spend the rest of the night there, appellant went out to the garage and closed the garage door. Back inside the home, appellant went to the bathroom. Sanchez saw appellant enter the bathroom, where he remained for three to five minutes before flushing the toilet. As appellant returned to the living room, he was not holding a blanket. Sanchez told appellant to take a blanket that was on the floor and go to sleep on the other couch in the room. When appellant again asked whether they should go home, Sanchez gave the same response. Sanchez watched appellant fall asleep and then stayed awake the rest of the night. She never saw M. go to the kitchen to get water and would have seen her had she done so.
A hospital pharmacist testified that a 12- year-old female of average size who is given 200 milligrams of Itraconazole a day to treat Valley Fever may experience side effects including dreams or delusions.
At the conclusion of the trial, the court took judicial notice that appellant was born on August 17, 1987.
DISCUSSION
Uncharged Sexual Offenses (Evid . Code , § 1108)
Appellant contends the trial court abused its discretion in admitting evidence of his uncharged sexual offenses against P.S. under Evidence Code section 1108. We conclude otherwise.
"Evidence Code section 1101, subdivision (a) sets forth the '"strongly entrenched"' rule that propensity evidence is not admissible to prove a defendant's conduct on a specific occasion." (People v. Jackson (2016) 1 Cal.5th 269, 299.) When a defendant is charged with a sexual offense, however, Evidence Code section 1108 "carves out an exception" to section 1101's prohibition against propensity evidence. (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 823.) Evidence Code section 1108, subdivision (a) states that when a criminal "'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.'" (Ibid.) When evidence of an uncharged sexual offense is proffered under Evidence Code section 1108, the court must "'undertake[ ] a careful and specialized inquiry [under Evidence Code section 352] to determine whether the danger of undue prejudice from the propensity evidence substantially outweighs its probative value.'" (People v. Erskine (2019) 7 Cal.5th 279, 296.)
Under Evidence Code section 352, a court has "the discretion to 'exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.'" (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1116.) "[F]ive factors stand out as particularly significant" when a court is considering the admissibility of evidence under Evidence Code sections 1108 and 352: "(1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show the defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant's charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time." (Id. at p. 1117.) "A trial court balances this first factor, i.e., the propensity evidence's probative value, against the evidence's prejudicial and time-consuming effects, as measured by the second through fifth factors." (Ibid.)
A trial court's ruling on the admissibility of evidence under Evidence Code sections 1108 and 352 "is reviewed for abuse of discretion and will '"not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice."'" (People v. Nguyen, supra, 184 Cal.App.4th at p. 1116; accord, People v. Story (2009) 45 Cal.4th 1282, 1295.)
Prior to trial, the prosecution moved in limine to admit prior uncharged sexual offenses that appellant had committed against P.S. and his sister Brenda. Appellant committed the offenses against Brenda approximately 16 years prior to the charged offense when both he and Brenda were juveniles. While babysitting Brenda appellant forced her to touch his penis, asked her to lick it like a lollipop, and attempted to sodomize her. Approximately three years prior to the charged offense, appellant grabbed one of P.S.'s buttocks for approximately five seconds after having previously used his fingers to "trail[ ]" across her buttocks.
Defense counsel objected to the proffered evidence as irrelevant and more prejudicial than probative under Evidence Code section 352. The court excluded the evidence regarding the uncharged offenses against Brenda, reasoning that appellant was only 13 or 14 years old at the time and that the evidence did not tend to show he had a sexual attraction to minors that continued into adulthood. The court ruled otherwise with regard to the offenses against P.S., reasoning that the probative value of showing that appellant had "some unnatural sexual interest" in children was not outweighed by the potential prejudice.
The trial court did not abuse its discretion in admitting the evidence of appellant's uncharged sexual acts against P.S.. Under Evidence Code section 1108, an uncharged sex offense is "presumed admissible and is to be excluded only if its prejudicial effect substantially outweighs its probative value in showing the defendant's disposition to commit the charged sex offense or other relevant matters." (People v. Cordova (2015) 62 Cal.4th 104, 132.)
The court did not err in concluding that the prejudicial effect of the evidence involving P.S. did not substantially outweigh its probative value. Contrary to appellant's claim, the fact that P.S. was older than M. was when appellant sexually assaulted her did not render the the uncharged offenses insufficiently similar to the charged offenses for purposes of Evidence Code section 1108. The charged and uncharged offenses were sufficiently similar in that they involved non- consensual sexual acts committed against relatives who were both minor females. (See, e.g., People v. Escudero (2010) 183 Cal.App.4th 302, 311 [in prosecution for molestation of a child, the trial court did not abuse its discretion in admitting under Evidence Code section 1108 evidence of the defendant's prior rapes of two adult women].) "In each instance, [appellant] took advantage of his female victims when they were vulnerable." (Ibid.) It was not required that the two sets of offenses "have been sufficiently similar to be admissible under Evidence Code section 1101" in order for them to be admissible under Evidence Code section 1108. (People v. Loy (2011) 52 Cal.4th 46, 63.)
Moreover, the evidence of appellant's uncharged acts against P.S. was not confusing or unduly remote, nor was it inflammatory in comparison to the evidence of the charged offenses against M. Finally, the evidence evidence did not consume a great deal of time and there was no substantial likelihood that the jury would consider the evidence for an improper purpose. (People v. Escudero, supra, 183 Cal.App.4th at p. 310.)
In any event, a trial court's error in admitting evidence of a defendant's commission of a prior uncharged sexual offense pursuant to Evidence Code section 1108 is subject to the Watson standard of prejudice. (People v. Jandres (2014) 226 Cal.App.4th 340, 357; People v. Harris (1998) 60 Cal.App.4th 727, 741.) Reversal is not warranted under this standard unless the defendant shows it is reasonably probable that he or she would have received a more favorable result if that evidence had been excluded. (Watson, supra, 46 Cal.2d at p. 836.)
People v. Watson (1956) 46 Cal.2d 818 (Watson).
As appellant acknowledges, the evidence of his uncharged sexual offenses against P.S. was considerably less inflammatory than the evidence of the charged offenses against M. Moreover, the independent evidence that appellant had committed the charged offenses against M. was substantial and compelling. Accordingly, any error in admitting the evidence of appellant's uncharged sexual offenses against P.S. was harmless.
To the extent appellant asserts that the evidence of his uncharged sexual offenses against P.S. was admitted in violation of his due process rights, he fails to show that the evidence was so prejudicial as to render his trial fundamentally unfair. (See People v. Partida (2005) 37 Cal.4th 428, 439.) --------
Appellant's Date of Birth
Appellant contends the trial court erred in taking judicial notice of his date of birth. We disagree.
Appellant was charged in count 2 with using a foreign object to sexually penetrate a child who was under the age of 14 and more than 10 years younger than the perpetrator (§ 289, subd. (j); count 2). During pretrial proceedings, appellant and his attorney both acknowledged that appellant was born in 1987. Appellant's birthdate of August 17, 1987 is also included in the information.
After both parties rested, appellant moved to dismiss count 2 on the ground that the prosecution had not presented any evidence at trial regarding appellant's date of birth. The trial court noted that appellant's attorney had not raised the issue in his motion to dismiss under section 1118.1 and told him "if you were aware at the time that that evidence had not been elicited, I would have been inclined to allow [the prosecutor] to reopen, and I'm so inclined now." The court then asked defense counsel "would [it] be your preference to allow me to have [the prosecutor] reopen to handle the matter by stipulation, or for me to handle the matter through judicial notice of this court's files and records?" Defense counsel replied that he preferred the court take judicial notice of his date of birth. The court then stated: "But there's no disagreement that the court sees or has been made aware as to [appellant's] date of birth, and that date of birth is August 17th, 1987; is that correct?" Appellant and his attorney both acknowledge that this was correct.
Defense counsel went on to make clear that he was moving to dismiss count 2 "at the close of all of the evidence" on the ground that there was no evidence regarding appellant's date of birth. The court replied: "So I understand your argument, it's clear on the record that you've made an 1118 motion both at the close of the People's evidence and now at the close of evidence in total. I'll deem that motion made once I have informed the jury of my decision to take judicial notice of the defendant's date of birth. I will deny that motion, but it's clear on the record that it's been made."
Shortly thereafter, the jury returned to the courtroom and the court stated: "I am reopening evidence for the purpose of taking judicial notice. I will take judicial notice that the date of birth of the defendant is August 17th, 1987. . . . [T]hat's a fact that the jury is directed to accept as true."
Appellant contends the court erred in taking judicial notice of his date of birth because the evidence in the record upon which it relied was inadmissible hearsay. We agree with the People that this contention is forfeited. As the trial court noted, it would have allowed the prosecutor to reopen if the issue had been raised in the section 1118.1 motion appellant brought after the prosecution rested. (See People v. Goss (1992) 7 Cal.App.4th 702, 708.) The court thus gave defense counsel the option of reopening, stipulating to appellant's date of birth, or allowing the court to take judicial notice of that fact. Defense counsel chose the latter. Moreover, counsel did not dispute that the court could take judicial notice of appellant's date of birth, much less claim that any evidence in the record of that fact was inadmissible hearsay. In any event, prior to trial appellant and his attorney both acknowledged on the record that appellant was born in 1987. Appellant's claim that the court prejudicially erred in taking judicial notice of his date of birth thus fails.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P.J.
YEGAN, J.
Jesse J. Marino, Judge
Superior Court County of San Luis Obispo
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Noah P. Hill, Acting Supervising Deputy Attorney General, Michael C. Keller, Deputy Attorney General, for Plaintiff and Respondent.