Opinion
F059938 Super. Ct. No. VCF218862
11-29-2011
THE PEOPLE, Plaintiff and Respondent, v. LUIS ALDANA GONZALEZ, SR., Defendant and Appellant.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Luis Aldana Gonzalez, Sr. was convicted of 13 counts arising from his sexual molestation of his two granddaughters. On appeal, he contends (1) the trial court abused its discretion by admitting evidence of defendant's prior sexual offenses against his daughter; (2) CALCRIM No. 1191 on propensity evidence was not supported by the evidence; (3) CALCRIM No. 359 on the corpus delicti reduced the prosecution's burden of proof; (4) CALCRIM No. 350 on defendant's character incorrectly referred to the character trait of being a good person; (5) cumulatively, these errors were prejudicial; and (6) the trial court failed to exercise its sentencing discretion and violated the ex post facto prohibition when it imposed consecutive sentences. We will affirm.
PROCEDURAL SUMMARY
On February 2, 2010, the Tulare County District Attorney charged defendant with lewd acts upon A., a child under the age of 14 years (Pen. Code, § 288, subd. (a); counts 1-3), and forcible lewd acts upon L., a child under the age of 14 years (§ 288, subd. (b)(1); counts 4-13). The information further alleged as to all counts that defendant committed the sexual offenses against multiple victims (§ 667.61, subds. (b) & (e)(4)), and as to counts 1 through 4 and 9 through 13 that he had substantial sexual conduct with the victims (§ 1203.066, subd. (a)(8)).
All statutory references are to the Penal Code unless otherwise noted.
A jury found defendant guilty as charged on all counts and found all of the special allegations true. The trial court sentenced defendant to 13 consecutive 15-year-to-life terms, for a total of 195 years to life.
FACTS
I. Prosecution Case
Defendant and his wife lived on a two-acre property in a small town. They had seven grown children and many grandchildren. Some of their extended family lived on the same property, and a large group of family and friends, sometimes over 30 people, would frequently gather there on weekends to eat, drink, and play. Defendant's children included Luis, Israel, Faustino, Araceli, Teresa, and Gabriela. In approximately 2003, defendant started molesting two of his granddaughters, L., Luis's daughter who was 18 years old at the time of trial, and A., Israel's daughter who was 15 years old at the time of trial. At trial, defendant's daughter, Araceli, testified that defendant had molested her when she was a child.
Sexual Offenses Against Granddaughter L.
Defendant started molesting L. when she was 11 years old. Sometimes he would take her to the chicken coop on the large property while other people were in the house playing cards. On one occasion, when about 12 people were playing cards at the house, defendant asked L. to help him rake leaves around the chicken coop. The two of them went out to the chicken coop alone. Once inside, defendant grabbed L. and tried to take off her shirt. She felt uncomfortable. Defendant touched her breasts over her clothes and moved his hand over them. Then he touched her vaginal area over her clothes, moving his fingers. Standing between L. and the door, he wrapped his arms around her from behind and touched her breast and vaginal area at the same time. He kissed her neck and cheek many times and called her a pet name. She got scared and told him to leave her alone. She did not yell because she was scared, but she kicked her leg behind her and into his crotch. She ran crying out of the chicken coop and to the house. She went into the bathroom so no one saw her crying. Defendant molested her on three more occasions in the chicken coop.
On cross-examination, L. said she had lied to Detective Rodney Klassen when she said defendant molested her only once in the chicken coop. She just wanted the interview to end. She had also lied to him when she told him she had not been to defendant's house for four years.
On three other occasions, also when L. was 11 years old, defendant told her they were going to the store. They got in his truck, but he drove to a nearby orchard instead of the store. He pulled over, reached toward her, and put his hand on her lap. He unzipped her pants and put his fingers into her vagina, causing her pain.
Another incident occurred in defendant's house in a small storage room under the stairway. L. had just turned 12 years old. It was summertime and the family gathered frequently at the house. That day, the family was in the garage. L. went to the storage room to get a soda, and defendant came in and closed the door, standing between her and the door. L. could hear people talking. Defendant put his fingers into L.'s vagina and moved them in and out. Defendant grabbed her wrist and put her hand down his pants and onto his penis. Defendant then pulled down his pants to his ankles and his underwear to his knees. L. thought defendant was going to hurt her like her father had. She was afraid and crying. She tried to pull her hand back, but could not. Defendant pushed her head toward his penis and she tried to push him away. She could not get away because he was holding her wrist and blocking the door. After the incident, she did not tell anyone because she was afraid she would get in trouble. She did not tell her mother because her mother would not have believed her—her father had told her that when she was little. And she did not tell her father because she was afraid of him.
But after these incidents, L. would cry when she got home from defendant's house. She told her mother it was not the same going to defendant's house anymore. Once, she told her mother she had a dream that defendant was molesting her.
L. also testified that her father, Luis, raped her when she was about six or seven years old. Her parents were separated at the time, but had since reunited. L. and her father had sexual intercourse so many times that she could not remember or count the number of times. Sometimes it happened in a white car. When L. was 15 years old, the day after her quinceañera, Luis came into her room when her mother was at her mother's house. Luis and L. had intercourse and he told her this was going to be the last time.
L. referred to the acts of intercourse as sex, not rape.
The quinceañera is the "Mexican celebration of a girl's 15th birthday, marking her passage from childhood to adulthood." (http://dictionary.reference.com/browse/ quinceañera.)
About two months after L.'s quinceañera, L.'s mother learned that defendant had molested his own daughter, Araceli. At that point, L.'s mother forbade L. and her brother from going to defendant's house.
Sexual Offenses Against Granddaughter A.
Defendant started molesting A. when she was eight years old. Every day after school, A. rode the bus to Dawn's house, which was on the same property as defendant's house. There were always children at defendant's house. On the weekends, A. and her family would attend family gatherings there. Children would be everywhere on the two-acre property.
Almost every weekend, defendant led A. by the hand upstairs to the spare bedroom in his house. Often, there were many people gathered in the house and the garage. Sometimes A. would come from Dawn's house next door to visit her cousins. Defendant would take her upstairs and touch her inappropriately. She would squirm and cry. He would touch her vagina over her clothes or he would take off her pants and touch her vagina on her skin. Once, he pulled his pants down and put both of her hands on his erect penis and made her move her hands over it. Another time, he took off both their pants, and he climbed directly on top of her. She started to cry and he tried to insert his penis into her vagina. Eventually, he succeeded and he moved forward and backward. It hurt A. and caused her to bleed. On another occasion, he took her into the master bedroom and showed her a pornographic movie while they both had their pants off and he touched her.
Defendant told A. not to tell anyone what they were doing or "they would take [her]." She did not like what he was doing to her, but she felt special because he was suddenly paying attention to her. She estimated that defendant had touched her about 40 times and had had intercourse with her about 15 times. Once, he bit her and she cried. The last time he touched her was after she had turned nine years old. He never told her why he stopped, but she assumed she had done something wrong and was no longer special to him.
In 2006, after A.'s parents learned that Araceli had accused defendant of molesting her, they quit taking their family to functions at defendant's house. Before this time, Israel trusted defendant and considered him his best friend. But when Israel learned about Araceli, he was angry with defendant and felt no love for him. The last function Israel attended at defendant's house was a Father's Day party in June 2006.
On August 10, 2008, A. wrote her first entry in her diary. On cross-examination, she explained that she wrote in her diary that she was a compulsive liar and that she had lied about little and important things. She wrote that she lied about everything and did not know why; she was not trustworthy or honest. She wrote that she told people she had been molested four times even though she had not. She testified that she told her friends defendant molested her four times rather than the one year that he did molest her. She also wrote in her diary that she regularly watched pornography between the ages of eight and 12.
On redirect examination, A. read this diary entry aloud:
"Okay. I'm ready. Finally I'm ready to actually talk about my molestation. My grandpa did it. Tito did it. I was eight years old when it first happened. It stopped when I was nine. He'd say he was tickling me at first, a game, and I did feel uncomfortable as if something was wrong, and he kept laughing about it as if it was no big deal. And then he started to put his mouth on my body, biting my neck, and that's when I really knew something was wrong. I tried to get up, and he pulled me back down and pushed me on the bed. He pushed his body between my legs, h[e]ld my
arms by my side and forced himself inside me. He was sweaty and pushing and grunting, and I was lying beneath him with tears dripping down my face, but for some reason no sound was able to come out of my mouth. For some reason, if felt like I was in a bad dream as though I'd wake up at any moment and everything would be okay. It was unreal to me. He was my grandpa. He was supposed to love me. He was supposed to love me. I blame him, blame him for not being able to 'cause I've never been able to show love. I've never been showed love or trust or the truth. I've been told to lie since I was little. He told me not to tell anyone, and I had to lie. Now I can't stop lying. I honestly don't know the difference between a truth and a lie. I don't know how to love. I don't know what love is. Does anyone really know? Is it possible to actually love? I don't know that someone can love someone else forever and ever."
In September or October of 2008, when A. was in the ninth grade, her mother went through her room while she was at school. A.'s mother was worried because A. was becoming very isolated. A. had always been shy, but she was getting worse. A.'s mother and Israel were having marital problems, but they did not discuss them with A. A.'s mother found A.'s diary and read that someone had molested A. for a whole year, but the entry did not name the person. A.'s mother could not read further; she fell apart and cried. She left the open diary on A.'s bed, called Israel, and told him to come home immediately. She told him to read the diary because she could not speak the words. He read the open page, but he too could read no more. A.'s mother went to school and got A. When A.'s mother and Israel told A. they had read her diary, A. immediately started to cry and sob. She could not answer questions, so Israel told her to respond by nodding her head. They asked her about various family members and confronted her about defendant. A. testified that she chose not to tell them all the details, but that her diary described the rape. A.'s mother did not call the police that day because her main concern was A.'s emotional and psychological well-being, and she wanted to find a therapist for A. A.'s mother put A. into therapy and she drove her to and from school every day. A. benefitted from therapy, but she never told her mother exactly what happened.
A. refused to speak to Detective Klassen about her diary (see infra), but on August 3, 2009, she agreed to discuss the allegations she made in her diary with Gregg White, an investigator for the district attorney's office. He conducted a recorded interview. In it, A. said she had watched pornography at defendant's house four times.
Public Allegations
On February 21, 2009, A. stayed overnight at L.'s house. A. and L. often spent time together. That night, A. told L. she had been molested by defendant, and then L. revealed the same. L. decided to report the abuse after hearing what had happened to A. L. felt it was her fault that A. got hurt because she failed to report her own abuse. The next morning when Israel came to pick up A. from L.'s house, L. took him outside and said she needed to speak to him. She requested a meeting that day with Israel, A.'s mother, and L.'s mother, but not Luis. Israel agreed. At the meeting, L. cried hysterically as she revealed that defendant had molested her. A. cried as L. spoke. L. also revealed that her father, Luis, had molested her too. That day, A.'s mother called the police to report A.'s molestation.
L.'s allegations caused her to lose family members, including her mother, brother, grandmother (defendant's wife), uncle (Faustino), and cousin (Elizabeth). Many family members were angry and quit speaking to L. She had to move out of her parents' house and live with her maternal uncle.
A few months after Araceli heard about L.'s and A.'s allegations, Araceli and her family moved off of defendant's property.
Prior Sexual Offenses—Daughter Araceli
Defendant's daughter, Araceli, who was 41 years old at the time of trial, testified that defendant molested her when she was between about 11 and 14 years old. The first incident occurred when she was sick and defendant rubbed some vapor rub on her chest. He started rubbing it on her throat, then his hand went under her shirt onto her breast. She was stunned and did not know what was happening. Defendant pulled down her shirt a little and put his mouth on her breasts and bit her nipples, causing her pain. She could not believe what was happening and she was scared. Her ears started humming and she could not feel her legs. This occurred in the kitchen, while other family members were in the next room watching television. Defendant left the kitchen first and Araceli followed.
On another occasion, Araceli woke up on the couch to see defendant standing in front of her. Her brothers and sister were sleeping in the same room. Defendant put his hand inside her top and rubbed her breast. She pushed his hand away and he left without saying anything. She did not wake up her siblings or tell her mother because she was scared.
Another time, the family was praying the rosary in the living room. Araceli left and went into the bathroom. Defendant followed her in and closed the door behind him. He tried to touch her breast, but she pushed him back. He motioned to her pants, but she hung onto them, pushed him away, and told him no. He left and closed the door. When she went back into the living room, defendant was there praying with the others. Araceli did not say anything to anyone because she was afraid they would not believe her.
The last time defendant touched Araceli was when she stayed home from school because she was sick. She was sleeping in her parents' bed. When she opened her eyes, defendant was standing by the bed. She could hear people through the open window. He came toward her and she started loudly saying no and telling him to get away. Defendant seemed surprised, as though he did not expect her to say no.
Araceli felt ashamed and believed it was her fault for not making defendant stop in time. When he drank, he would apologize to her, saying he was sorry he had caused damage to her and that he was never going to do it again. Araceli first disclosed the molestation to her sister, Teresa, when Araceli was a sophomore in high school. The police contacted her, and she and Teresa were removed from the home and placed in foster care. The two of them were brought to an office to confront defendant. He denied the molestation and his wife did not believe Araceli. Araceli never recanted her allegations, but everyone treated the situation as a "misunderstanding." She was afraid to go back to her house, so she ran away from foster care with her boyfriend. Everyone said she lied about the molestation so she could run away with him. They stayed in Mexico for three months, until they ran out of money and had no choice but to come back. She did not go to the police because she was afraid of defendant and because she thought that if her mother did not believe her, no one would. She and her boyfriend lived somewhere else for two years, but after they married, they moved back onto defendant's property because they did not have any money. Defendant asked for forgiveness and said he would not do it again. At that point, she believed him and trusted him. She and her husband moved into a trailer on the property, where they stayed and raised their family. She wanted her children to have a grandfather and be close to their uncles. She always looked after her children's safety. Despite what defendant had done to her, she loved him and it was hard for her to testify against him.
Pretext Telephone Call
On March 5, 2009, Araceli made a pretext telephone call to defendant with the assistance of Detective Klassen. Araceli asked defendant why Israel had fired him, but he avoided answering. Then she asked him what happened with A. and L. Defendant acted like he did not know what she was talking about. When she confronted him with what he had done to her, he said he had touched her but it was a misunderstanding and he thought she had forgiven him for it. She told him it was not a misunderstanding. He said they needed to move on. He said he knew what he had done to her was wrong. He apologized to her more than once. He said she had not been sexually violated by penetration, so that was why he thought it was a misunderstanding. He repeatedly denied the allegations made by A. and L. He said he knew what he had done to Araceli was wrong, but he was not going to pay for someone else's wrongdoing because he did not do anything to the girls. He said he was 100 percent guilty for what he had done to Araceli, but not to the girls.
Israel was defendant's boss at the produce packing house. Israel fired defendant on October 1, 2008.
Expert Psychological Evidence
Dr. Anthony Urquiza, a psychologist, had treated sexually abused children. He explained Child Sexual Abuse Accommodation Syndrome (CSAAS), which he described as an educational, not a diagnostic, tool. Abused children may exhibit some or all of the syndrome's five components.
The first component of the syndrome is secrecy. Most children are abused by someone with whom they have an ongoing relationship. The abuser manipulates or coerces the child to keep quiet about the abuse. Sometimes children are silent because they crave the special attention and need to be connected to and loved by someone, even though they dislike the abuse. The children often put themselves in the position to be abused again because they get something important from the relationship.
The second component of the syndrome is helplessness. Children do not yell, scream, or report the abuse because they are being manipulated or coerced, or because they are ashamed or humiliated. The children are not able to protect themselves, so the abuse continues. Some children even deny abuse when asked directly. Children who are more passive and less confident are more likely victims.
The third component of the syndrome is entrapment and accommodation. The secrecy and helplessness create a trap from which children cannot escape. They accommodate to the situation by disassociating from the horrible feelings that come with abuse—the shame, humiliation, and disgust of someone fondling them, penetrating them, or forcing them to engage in oral copulation. Shutting down these feelings allows the children to cope with something they cannot control. Children who are good at disassociating may have a flat affect and may discuss what happened to them without emotion, or they may vacillate between crying and disassociating. When the children are forced to deal with the feelings, they tend to disassociate.
The fourth component of the syndrome is delayed and unconvincing disclosure. Although people commonly think children will report abuse immediately, most disclosures are significantly delayed from the onset of abuse, often by more than one year. In fact, many victims wait until they are over the age of 18, and some wait for decades. Sometimes the delay is due to fear, and sometimes shame, humiliation, and guilt. They often decide to bury the secret, and when they do finally disclose the abuse, their method is not direct and complete. Instead, they gradually release information that eventually reveals the abuse. Disclosure is a process, not an act. When disclosure does occur, it is often unconvincing because the children's stories and excuses for not wanting to be around the abuser may be changing and inconsistent. Further, children may not be able to accurately recount exactly what happened, when it happened, or how many times it happened. If the abuse happened many times, the incidents tend to run together for children.
The fifth component of the syndrome is retraction. About 25 percent of abused children retract some or all of their disclosure. Some are pressured by others to retract because the abuser will go to prison.
II. Defense Case
Son Faustino
Faustino, one of defendant's sons, testified that at the family gatherings, defendant would usually sing, play the guitar, and make sure everyone had something to eat and drink. He was always visible because he was social and stayed with everyone; he did not leave to be by himself. Faustino never saw defendant display any special interest toward particular children. Defendant played with the children like any regular grandfather, and A. and L. behaved normally around defendant. Faustino's sister, Araceli, allowed her children unsupervised access to defendant's house. They would stay overnight whenever they wanted to. Araceli acted lovingly toward defendant and would hug him. She showed no fear toward him.
Faustino remembered that children were afraid to go into the spare bedroom because of the dolls.
Daughter Gabriela
Gabriela, one of defendant's daughters, testified that A. acted like she loved defendant. She hugged him, kissed his cheek, and sat on his lap. She did not display any fear or hatred toward him. Defendant did not give A. more attention than the other children. L. also behaved like all the other children when she was around defendant. She would hug and kiss defendant when she was young. Araceli was loving toward defendant and would hug him.
At family gatherings, it would not have been easy for defendant to disappear for 15 to 30 minutes. He was usually the center of attention, playing his guitar.
Granddaughter Elizabeth
Elizabeth, who was 21 years old at the time of trial, was one of defendant's granddaughters. She had visited defendant's house since she was young. She had been very close to her cousins, A. and L. The three of them were always together. At defendant's house, they went everywhere, but they did not like the spare room because they were afraid of a particular doll. Elizabeth no longer spoke to A. or L., and she missed them.
At their family gatherings, defendant was always the center of attention. He interacted with the children like any other grandfather. She loved defendant like a father and found it difficult to testify.
Sister-in-Law Dawn
Dawn, who was married to defendant's brother, lived next door to defendant on the same property. She began babysitting A. and A.'s younger brother when A. was about seven or eight years old. The bus would drop them off after school. A. would visit defendant and his wife next door, but Dawn did not observe their interaction because she was busy taking care of A.'s brother. A. never indicated to Dawn that she did not want to be around defendant.
L.'s Mother
L.'s mother testified that she and Luis had a rocky marriage. Luis abused alcohol and he would yell and be violent toward her in front of the children. He pushed her and choked her. Sometimes L. and her brother would intervene when L's mother and Luis argued. L.'s mother called the police once, and she left Luis on three occasions, the first time when L. was six years old. Nevertheless, she and the children decided to give Luis another chance and the family reunited. She noted that Luis generally drove a white car.
L.'s family quit going to family gatherings about a month after L.'s quinceañera. L.'s mother allowed the children to go to defendant's house only if they were accompanied by Luis.
L. told her mother she had been molested by both Luis and defendant. L. was being punished before she made the accusations. She was not allowed to see her boyfriend, or have access to the internet or telephone for about three weeks. L. lied a lot and L.'s mother would punish her.
In L.'s bedroom, L.'s mother found a letter written to L. by a friend. In the letter, the friend mentioned that L. had lost her virginity in the eighth grade. L.'s mother confronted L. with the letter, asking her how that was possible when she had accused her father of having sex with her before then. L. got upset and asked her mother how she dared to go through her personal things, and she refused to discuss the letter further.
Araceli's Friend Arjelia
Arjelia, Araceli's longtime friend, attended many gatherings at defendant's house. She observed that Araceli behaved around defendant like any daughter would. Once, in about 2005, Arjelia told Araceli she had heard people say that defendant had abused Araceli and Teresa. Araceli told Arjelia it was not true, that people would talk just to talk, but nothing happened.
Wife
Defendant's wife testified that she and defendant had seven children and about 13 grandchildren. She explained that Araceli made allegations that defendant touched her inappropriately about 25 years ago, but Araceli never told her. A few days before Araceli made the accusations, defendant and his wife were punishing her and not allowing her to go to a dance. Araceli eventually returned and lived on their property.
The wife described defendant as "a good person, a good father, a hard working person, very responsible and very loving with the whole family." She never noticed that any of her daughters or grandchildren were afraid to be around defendant. Nor did she see defendant display any special interest in A. or L. He behaved normally around all the children. During gatherings, he never left the room without her. Since 2000, he had not left the room without her.
Daughter Teresa
Teresa, one of defendant's daughters, testified that before Araceli made accusations against defendant, Araceli and Teresa were upset because Araceli did not go to a party at school. Teresa did not call the police or child services. Araceli was at the foster home for three days. Teresa was there one week, then returned home. Defendant was the most important man in Teresa's life and she would do anything to protect him. She was angry he was being prosecuted for these crimes. She refused to even speak to the district attorney's investigator. The only people she would speak to were defense counsel and his investigator.
Detective Klassen
According to Detective Klassen, Araceli told him that when she and Teresa met with child services and were told about the consequences to defendant, Teresa "backed up" and left Araceli alone in her accusations. Araceli felt betrayed.
L. told Detective Klassen that the store incident occurred about three times and the chicken coop incident occurred about five times, although at one point, she said the chicken coop incident occurred one time.
A. refused to talk to Detective Klassen about her diary. She was very embarrassed that he had read her diary and she completely shut down. She told him defendant's molestation was ongoing while she was eight and nine years old. Detective Klassen interviewed A. on March 11, 2009. The redacted video recording was played for the jurors.
A.'s Friend Mariah
Mariah was A.'s school friend. A. told Mariah she had been molested when she was younger, but she did not mention any names. A. also said she had been raped in February 2009 when she went to someone's house with her father for a long weekend to buy drugs. Then, in May 2009, A. told Mariah she had been pregnant twice, once by her father and once by another student's father. She was straight-faced when she said she was impregnated by her own father. In November 2009, just a few months before trial, Mariah asked A. about a rumor that she was pregnant. A. told her she had been pregnant, but recently miscarried.
A.'s Friend Maricruz
Maricruz was another of A.'s friends. In September or October 2008, A. told Maricruz she had been raped, once in the eighth grade and twice in the summer of 2008. One incident occurred at her house. Maricruz thought A. seemed like an honest person.
Granddaughter A.
A. testified that she and Mariah were pretty good friends, but she never told Mariah she was raped by her father, was involved in a drug deal with her father, or was raped last year. She never told Maricruz she was raped or molested in the eighth grade, or was raped twice in 2008.
III. Rebuttal Evidence
Teacher Eric Ford
Eric Ford was one of A.'s high school teachers. When asked if he had an opinion as to A.'s truthfulness in general, he answered, "I've had her ... since the beginning of the year, school year, ... and I've never had any problems with her, nor do I have any reason to have any distrust with her."
Daughter Araceli
Araceli testified that she and Arjelia were no longer friends. In 2003, Arjelia asked her if she had been raped because she heard it from someone. Araceli said, "[N]o, that's a lie." That was the entire conversation.
Consuela
Consuela was L.'s maternal grandmother. She testified that the day after L.'s quinceañera, L.'s mother came to Consuela's house alone.
Consuela also explained that after L. testified at trial, she was sad, inconsolable, and could not speak. After leaving the courtroom each time, she would go directly to the bathroom and vomit. This happened each of the three days that L. testified. Consuela had known L. her whole life and considered her an honest person.
DISCUSSION
I. Evidence of Prior Sexual Offenses
Defendant contends the trial court erred by admitting evidence of his prior sexual offenses against his daughter, Araceli, pursuant to Evidence Code section 1108. He argues the evidence should have been excluded under Evidence Code section 352 because the offenses were remote, dissimilar, irrelevant, and prejudicial. We disagree.
As a general rule, evidence of a defendant's other bad acts is not admissible to prove his propensity or disposition to commit bad acts. (Evid. Code, § 1101.) However, Evidence Code section 1108 creates an exception in cases of sexual offenses, allowing admission of evidence of the defendant's other sexual offenses to show he has a disposition to commit sexual offenses.
"Evidence of a prior sexual offense is indisputably relevant in a prosecution for another sexual offense. 'In the determination of probabilities of guilt, evidence of character is relevant. [Citations.]' [Citation.] Indeed, the rationale for excluding such evidence is not that it lacks probative value, but that it is too relevant. 'It may almost be said that it is because of the indubitable relevancy of specific bad acts showing the character of the accused that such evidence is excluded. It is objectionable not because it has no appreciable probative value but because it has too much.' [Citation.]" (People v. Fitch (1997) 55 Cal.App.4th 172, 179; see People v. Falsetta (1999) 21 Cal.4th 903, 915 (Falsetta).) But our Legislature has determined that in sexual offense cases, the policy considerations favoring the exclusion of evidence of other sexual offenses are outweighed by the policy considerations favoring its admission, and that "the need for this evidence is 'critical' given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial." (People v. Fitch, supra, at pp. 181-182.)
Admission of evidence under Evidence Code section 1108 remains subject to an Evidence Code section 352 analysis, which permits the trial court, in its discretion, to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. "The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." (People v. Karis (1988) 46 Cal.3d 612, 638; People v. Yu (1983) 143 Cal.App.3d 358, 377.) "Rather, the statute uses the word in its etymological sense of 'prejudging' a person or cause on the basis of extraneous factors. [Citation.]" (People v. Farmer (1989) 47 Cal.3d 888, 912, overruled on other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)
In making an Evidence Code section 352 determination of whether the probative value of evidence of an uncharged offense is substantially outweighed by the probability of undue prejudice, the court must consider the nature, relevance, and possible remoteness of the uncharged offense, the degree of certainty that it was committed, the likelihood of confusing or misleading the jurors, its similarity to the charged offense, its likely prejudicial impact on the jurors, and other factors. (Falsetta, supra, 21 Cal.4th at pp. 916-917; People v. Harris (1998) 60 Cal.App.4th 727, 737-740 (Harris).)We review a trial court's decision under the abuse of discretion standard, and will uphold the ruling unless the court acted in an arbitrary, capricious, or patently absurd manner. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Thus, on one side of the balance is the probative value of the evidence, which is increased by the relative similarity between the prior offenses and the charged offenses. (Falsetta, supra, 21 Cal.4th at p. 917.) In this case, Araceli was about the same age as A. and L. when they were molested. Defendant often touched the victims even when other people were nearby, for example, while family members were in the garage partying or in the living room reciting the rosary. All three victims were young girls closely related to defendant and frequently at his house. We disagree with defendant that the offenses against Araceli were dissimilar because they did not involve force or the touching of her vagina. The fact that Araceli was able to fend off defendant's efforts to reach for her pants does not render his behavior significantly dissimilar. The evidence strongly suggests defendant would have touched Araceli's vagina if she had not resisted so strongly. The prior offenses were highly probative of defendant's propensity to commit sexual offenses under similar circumstances.
On the other side of the balance are the inflammatory nature of the evidence, the probability of confusion, the remoteness of the offenses, and the consumption of time. (Harris, supra, 60 Cal.App.4th at pp. 737-741.) Defendant contends the prior offenses were too remote to provide a reasonable basis for propensity. However, "[n]o specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible." (People v. Branch (2001) 91 Cal.App.4th 274, 284 [30 years not too remote; remoteness balanced by similarity]; People v. Ewoldt (1994) 7 Cal.4th 380, 405 [same; 12 years]; People v. Pierce (2002) 104 Cal.App.4th 893, 900 [same; 23 years]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [same; 15 to 22 years].) "Remoteness of prior offenses relates to 'the question of predisposition to commit the charged sexual offenses.' [Citation.] In theory, a substantial gap between the prior offenses and the charged offenses means that it is less likely that the defendant had the propensity to commit the charged offenses. However, ... significant similarities between the prior and the charged offenses may 'balance[ ] out the remoteness.' [Citation.] Put differently, if the prior offenses are very similar in nature to the charged offenses, the prior offenses have greater probative value in proving propensity to commit the charged offenses." (People v. Branch, supra, at p. 285.) Here, although approximately 27 years had passed since defendant molested Araceli, the propensity evidence was extremely probative of defendant's sexual misconduct with young female family members who trusted him and to whom he had easy access, and is exactly the type of evidence contemplated by the enactment of Evidence Code section 1108. Given the similarities among the acts, the prior offenses were not too remote.
Defendant also argues the degree of certainty of the offenses against Araceli was dubious because the vapor rub incident was "susceptible to misinterpretation by an impressionable young female," and the incident in which she was sleeping in the living room was "also subject to a dream fantasy." He adds that the circumstantial evidence of the incidents was refuted by Araceli's return to defendant's property and her permissive attitude toward her own daughter's contact with defendant. He says that his admission in the pretext call was diminished because the incidents were a misunderstanding.
We can imagine no jury that would believe a man's act of putting his mouth on a girl's breasts and biting her nipples is susceptible to misinterpretation. Every 11-year-old girl recognizes this is not a cold remedy. Neither can we imagine a jury that would conceive of any appropriate reason for a man to put his hand under a girl's top and rub her breasts while she is sleeping, or to follow a girl into the bathroom during recitation of the rosary to attempt to touch her breast and her pants. If Araceli's perception of the sleeping incident was subject to a dream fantasy, which we have no reason to assume, certainly the other incidents were not. The real fantasy here was defendant's belief that his abuse of Araceli amounted to nothing more than a misunderstanding because he did not penetrate her. As for his claim that Araceli's testimony was refuted by her own conduct, we note that any inconsistencies in her behavior, such as returning to defendant's property to raise her family, were for the jury to weigh.
Defendant next asserts that because he was not convicted of the prior offenses against Araceli, the jurors were tempted to convict him of the current offenses to punish him for the prior offenses. Where "uncharged acts [do] not result in criminal convictions," a jury "might [be] inclined to punish defendant for the uncharged offenses, regardless whether it considered him guilty of the charged offenses," thus "increas[ing] the likelihood of 'confusing the issues' (Evid. Code, § 352) ...." (People v. Ewoldt, supra, 7 Cal.4th at p. 405; Falsetta, supra, 21 Cal.4th at p. 917.) But the record provides no reason to conclude the jury did so here. The court properly instructed with CALCRIM No. 1191 on the limited purpose for which the jury could consider the evidence, and we presume the jurors followed the instructions (People v. Pinholster (1992) 1 Cal.4th 865, 919, overruled on another point in People v. Williams (2010) 49 Cal.4th 405, 459.)
Finally, defendant asserts that the prior offense evidence was used to buttress a weak case that was based on "admitted and proven liars," A. and L. We could not disagree more. After a careful review of the entire record, we conclude that the evidence against defendant was compelling. We are convinced that any reasonable jury would have convicted defendant on all charges even without evidence of the prior offenses. Nevertheless, we point out that defendant's weak case argument identifies the precise reason for admission of evidence under Evidence Code section 1108. As discussed above, "sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence." (Falsetta, supra, 21 Cal.4th at p. 915.) Thus, the intent of Evidence Code section 1108 is "to assure that the trier of fact would be made aware of the defendant's other sex offenses in evaluating the victim's and the defendant's credibility." (Falsetta, supra, at p. 911.) Here, evidence of defendant's prior offenses, in addition to evidence of any inconsistencies in A.'s and L.'s stories and conduct, was properly before the jurors for their credibility assessment.
Defendant claims the defense presented three witnesses who contradicted evidence of his prior offenses—but to support this claim, he mischaracterizes the testimony of two of the three witnesses. First, he says his wife testified that Araceli "never said that [defendant] touched her inappropriately." But his wife actually testified that she recalled Araceli making allegations against defendant, but Araceli never told her. Next defendant says Teresa testified that Araceli "never said [defendant] molested her." But Teresa actually testified that she did not recall if Araceli ever told her that defendant had molested her. These mischaracterizations are significant departures from the actual evidence. Only defendant's third claim is accurate. He says Arjelia testified that Araceli told her it was not true that defendant abused her. This testimony was contradicted by Araceli, who testified that she told Arjelia it was a lie that defendant had raped her.
We conclude the trial court did not abuse its discretion under Evidence Code section 352 when it admitted evidence of defendant's prior offenses. And we add that, even if admission of the evidence was error, due to the strength of the case, any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
II. CALCRIM No. 1191
In a related argument, defendant contends the evidence did not support the giving of CALCRIM No. 1191 on the prior offense evidence. He does not challenge the instruction itself, but asserts that the evidence was insufficient to prove his predisposition and thereby support the instruction. He maintains that even if the prior offenses were relevant and admissible, they still did not reasonably prove his propensity to commit sexual offenses 20 years later. Lastly, he adds that even if the offenses did prove a propensity 20 years later, they did not prove a propensity to commit the forcible acts charged in counts 4 through 13.
We have already concluded that the evidence of defendant's prior offenses against Araceli was properly admitted. That evidence provided ample evidence to support the giving of CALCRIM No. 1191.
III. CALCRIM No. 359
Defendant argues that the trial court erroneously instructed on the corpus delicti rule. We conclude any error was harmless.
The corpus delicti rule, which has its roots in the common law, "is intended to ensure that [a criminal defendant] will not be falsely convicted, by his or her untested words alone, of a crime that never happened. [Citations.]" (People v. Alvarez (2002) 27 Cal.4th 1161, 1169.) The corpus delicti rule "generally requires the prosecution to prove 'the body of the crime itself independent of a defendant's extrajudicial statements." (People v. Sapp (2003) 31 Cal.4th 240, 303.)
In this case, the trial court instructed the jury on the corpus delicti rule pursuant to CALCRIM No. 359, as follows:
"The defendant may not be convicted of any crime based on his out-of-court statements alone. You may only rely on the defendant's out-of-court statements to convict him if you conclude that other evidence shows that the charged crime was committed. [¶] That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [¶] The identity of the person who committed the crime may be proved by the defendant's statements alone. [¶] You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt."
Defendant contends the giving of this instruction was error because his out-of-court statements were admissions to his prior uncharged offenses against Araceli, not the charged crimes against A. and L., which he denied. He explains that the corpus delicti rule does not apply to uncharged offenses, and the instruction diluted the prosecution's burden of proof by allowing the jurors to use defendant's admissions that he molested Araceli to convict him of molesting A. and L. if there was slight evidence to support a reasonable inference that A. and L. were molested.
Assuming the giving of this instruction was error, we find it harmless beyond a reasonable doubt. The evidence in this case was "'of such compelling force as to show beyond a reasonable doubt' that the erroneous instruction 'must have made no difference in reaching the verdict obtained.'" (People v. Harris (1994) 9 Cal.4th 407, 431, quoting Yates v. Evatt (1991) 500 U.S. 391, 407, disapproved on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72-73, fn. 4; People v. Flood (1998) 18 Cal.4th 470, 489 [we assess instructions "in the context of the evidence presented and other circumstances of the trial to determine whether the error was prejudicial"]; Chapman, supra, 386 U.S. at p. 24.) The overwhelming state of the evidence is enough to convince us, but we also note that the court instructed the jury with CALCRIM No. 220 on proof beyond a reasonable doubt, CALCRIM No. 200 on the possibility that some instructions may not apply, and CALCRIM Nos. 1110 and 1111 on the elements the prosecution was required to prove to obtain convictions of the sex offenses against A. and L. Taken together, these instructions dispel any notion that the jury misunderstood the requisite burden of proof. (People v. Holt (1997) 15 Cal.4th 619, 677 [we evaluate the entire charge to the jury]; People v. Clair (1992) 2 Cal.4th 629, 662-663 [we review the jury instructions as a whole and ask whether there is a reasonable likelihood the jury misunderstood the instructions in the manner suggested by the defendant].) Overall, we are confident beyond a reasonable doubt that the error did not contribute to the verdict. (Yates v. Evatt, supra, at pp. 402-403; Chapman, supra, at p. 24.)
IV. CALCRIM No. 350
Defendant contends the trial court's version of CALCRIM No. 350 on evidence of his good character constituted reversible error. We disagree.
A defendant is entitled upon request to an instruction stating that evidence of the defendant's "good reputation ... as to traits involved in the charge, should be weighed as any other fact established, and that it may be sufficient to create a reasonable doubt as to his guilt." (People v. Bell (1875) 49 Cal. 485, 490.) Generally, under Evidence Code section 1102, a defendant may present character evidence in the form of opinion or reputation evidence, but not in the form of defendant's specific acts. (People v. Felix (1999) 70 Cal.App.4th 426, 431; People v. Honig (1996) 48 Cal.App.4th 289, 348.) However, an exception to this general rule arises when the prosecution introduces evidence of defendant's uncharged sex offenses under Evidence Code section 1108 to show the defendant has a disposition to commit sex offenses. (People v. Callahan (1999) 74 Cal.App.4th 356, 375-379.) The defendant has the right to rebut the prosecution's sex offense propensity evidence with "all of the three types of character evidence—opinion evidence, reputation evidence, and evidence of specific incidents of conduct." (Id. at p. 379.)
Here, defendant presented evidence that he treated his grandchildren like any other grandfather, that he did not show special interest toward A. or L. (or any of the other children), that A. and L. behaved like all the other children when they were around defendant, that defendant was a good person and father who was responsible and loving toward the whole family and who behaved normally toward the children, and that he was the center of attention at gatherings and could not easily have left the room. The trial court instructed as follows:
"You have heard character testimony that defendant is a good person. [¶] You may take that testimony into consideration along with all the other evidence in deciding whether the People have proved that the defendant is guilty beyond a reasonable doubt.
"Evidence of the defendant's character for being a good person can by itself create a reasonable doubt. However, evidence of the defendant's good character may be countered by evidence of his bad character for the same trait. You must decide the meaning and importance of the character evidence." (Italics added.)
Defendant argues that the trial court's version of CALCRIM No. 350 utilized the irrelevant, amorphous, and nearly meaningless trait of being a good person, rather than the relevant trait of being a person who lacks sexual deviance and behaves normally with children. He argues that evidence of his being a good person did not rebut the propensity evidence or raise a reasonable doubt, and the instruction violated his rights to a jury trial, a full defense, and due process. He contends the character evidence he presented was sufficient to raise a reasonable doubt and establish his innocence, and thus the erroneous instruction contributed to the guilty verdicts.
We believe the jury most likely understood the instruction as referring to evidence that defendant was a good person who did not molest children. Any other interpretation seems nonsensical. (People v. Clair, supra, 2 Cal.4th at pp. 662-663 [we ask whether there is a reasonable likelihood the jury misunderstood the instructions in the manner suggested by defendant].) In any event, we again conclude any error was harmless under any standard. As we have explained, the evidence was so overwhelming that we are persuaded beyond a reasonable doubt that the error did not contribute to the verdict. (Yates v. Evatt, supra, 500 U.S. at pp. 402-403; Chapman, supra, 386 U.S. at p. 24.)
V. Cumulative Error
Defendant contends the cumulative impact of the errors denied him due process of law. However, we have found either no error or no prejudice. Whether defendant's contentions are considered individually or together, defendant was not deprived of due process or his right to a fair trial.
VI. Sentencing Discretion
Lastly, defendant maintains that the trial court failed to exercise its sentencing discretion because it mistakenly believed consecutive sentences were required for all 13 counts. But the transcript of the sentencing hearing unambiguously demonstrates the court not only was aware of its discretion (the probation officer's report even recommended concurrent sentences on some counts), but was so disturbed by the case that it would have imposed an even greater sentence if it could have done so. The court said it was doing its best to keep defendant in prison for the rest of his life. This statement demonstrates the court's awareness of its discretion:
"I am going to sentence you to 195 years to life. That is not the death penalty. The death penalty is not allowed in these circumstances. Whether it should be or not is not for me to decide, but I can say to you, and I will say to your family that for all intents and purposes, you are dead to the world, and that is appropriate, and that is just. You should never ever, ever be released from prison, and it is my intent that that should be accomplished by the sentence that I am about to impose upon you."
Defendant further argues that the trial court's retroactive application of the 2006 version of section 667.61, subdivision (j) violated the proscription against ex post facto laws and resulted in his consecutive sentences. As the People point out, however, the 1998 version of section 667.61, which was applicable in this case, required imposition of multiple terms, but not consecutive terms. The 2006 version required consecutive terms. Accordingly, application of the 1998 version allowed consecutive terms in the court's discretion. (See People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262 [although § 667.61, subd. (b) mandates imposition of 15 years to life for each count involving separate occasions and separate victims, § 667.61 does not mandate that those terms must be served consecutively; citing § 667.61, subd. (g)].)
The 1998 version of section 667.61, subdivision (g) provided: "The term specified in subdivision (a) or (b) shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion. If there are multiple victims during a single occasion, the term specified in subdivision (a) or (b) shall be imposed on the defendant once for each separate victim. Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.6, if applicable."
The 2006 version of section 667.61, subdivision (i) provides: "For any offense specified in paragraphs (1) to (7), inclusive, of subdivision (c), the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6."
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DISPOSITION
The judgment is affirmed.
Kane, Acting P.J. WE CONCUR: Poochigian, J. Detjen, J.