Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE266939, Laura W. Halgren, Judge.
BENKE, Acting P. J.
Terry Leroy Lamison was found guilty of two counts of committing a lewd act upon a child within the meaning of Penal Code section 288, subdivision (a). Lamison was sentenced to a prison term of eight years. He appeals, arguing the trial court erred in admitting evidence of prior acts pursuant to Evidence Code section 1108.
All further statutory references are to the Evidence Code unless otherwise specified.
The information charged appellant with 17 counts concerning the alleged sexual molestation of three young girls and related offenses. He was found not guilty of all but two of the charges.
FACTS
A. Prosecution Case
Appellant was an elementary school custodian. One of his jobs was working with children before and after school. On several occasions appellant played "scary" movies for the children. During an investigation of parent complaints concerning the movies, Desiree M., a fifth grader at the school, reported appellant had touched her breasts. At appellant's request, Desiree took off her pants and appellant rubbed her vagina. Appellant kissed her on the lips and on one occasion showed her his penis.
Appellant's 30-year-old daughter Mildred testified that when she was in the fifth grade appellant fondled and licked her breasts. After reporting the incident to a teacher, she was removed from appellant's home. After being told that if she returned home appellant would not molest her, Mildred told the authorities her allegations against appellant were untrue. Once home, appellant took pictures of her naked. He repeatedly touched her in a sexually inappropriate manner. On one occasion he placed his penis between her legs -- but did not enter her -- and ejaculated on her. Appellant told Mildred if she reported his actions, he would harm her mother and sister. Nonetheless, Mildred reported appellant's behavior, and she was again removed from the home.
Appellant admitted to a social worker he touched Mildred's buttocks and breasts.
B. Defense Case
Witnesses testified appellant was of upstanding character and they never witnessed him touch children inappropriately. Appellant testified and denied Desiree's allegations. He also denied sexually abusing Mildred.
DISCUSSION
Over appellant's objection, the trial court admitted, to show his propensity to commit such acts, evidence appellant molested his daughter Mildred. Appellant makes two arguments asserting such admission was improper. First, he argues the admission of evidence of prior unlawful sexual acts occurred years before and did not result in his conviction. Thus using the prior acts denied him his federal right to due process of law. Second, he argues that even if such evidence could properly be admitted pursuant to section 1108, subdivision (a), the trial court abused its discretion in refusing to exclude it pursuant to section 352.
1. Background
By in limine motion appellant conceded that if the prosecution could demonstrate he molested his daughter in the late 1980's and the early 1990's, the evidence would have "some" relevance in the present case. Appellant asked a hearing be held to determine if a sufficient showing could be made that the alleged conduct occurred. Appellant additionally argued that even if a sufficient foundation could be laid, the evidence should be excluded pursuant to section 352 as more prejudicial than probative. Appellant noted the charged and uncharged acts did not occur close in time, appellant was not convicted or even charged with the prior acts, there was no independent evidence the prior acts occurred, placing the priors in evidence would necessitate an undue consumption of time and evidence of the prior acts was highly inflammatory.
In its trial brief, the prosecution asked that pursuant to section 1108, subdivision (a), Mildred's testimony be admitted concerning acts of molestation by appellant. The prosecutor noted the first acts of molestation occurred between June and September 1987, when Mildred was 11 years old. Mildred told the police that while at home appellant, over her protest, pushed her onto a bed and touched her breast with his hands and mouth. Mildred later withdrew her claim, stating she made up the allegations because she was mad at appellant.
In August 1990 Mildred, then 14 years of age, again accused appellant of molesting her. She stated appellant touched her breasts and vagina on several occasions. Mildred stated she withdrew her 1987 claim appellant molested her not because it was untrue but because appellant promised if she did so he would not touch her again. While appellant kept his promise for a time, he eventually began molesting Mildred. Mildred moved out of her father's house when she was 16.
Appellant admitted to a social worker that on one occasion he fondled Mildred's breasts and buttocks.
The trial court ruled admissible Mildred's testimony concerning prior acts by appellant. The court first found the offered prior acts admissible pursuant to section 1108. The court then conducted a thorough section 352 analysis. The court noted the prior acts were similar to those charged in this case, the victims in both the prior acts and the charged acts were young girls of about the same age. The court noted that while the acts against Mildred occurred in appellant's home, and the charged acts occurred at a school, in both acts appellant occupied a position of authority. The court concluded these factors made the prior acts highly relevant.
The court observed the prior acts happened years before the charged offenses. The court noted several published cases in which reviewing courts found acts more remote in time than those here were properly admitted pursuant to section 1108. The trial court reasoned that given the nature of sexual offenses and the legislative finding with regard to such prior acts, the relative remoteness of the prior acts in this case did not require they be excluded.
The court noted appellant admitted some of the prior acts and cited the prosecutor's representation that a true finding concerning the acts was made in the dependency proceedings.
The court noted prejudice might arise from the admission of appellant's prior acts if the jury was aware appellant was never charged, convicted or punished for those crimes. The jury in the present case might convict merely to punish appellant for his prior offenses. The court concluded this potential could be lessened by making no reference to criminal proceedings involving the prior acts.
Finally, the court concluded that because only one witness would testify concerning the prior acts, their admission would not unduly lengthen the trial.
The trial court admitted Mildred's testimony pursuant to section 1108.
2. Analysis
Section 1108, subdivision (a), provides that when a defendant is accused of a sexual offense, evidence of that defendant's commission of another sexual offense is admissible unless the evidence is made inadmissible under the provisions of Evidence Code section 352. Appellant contends the admission of such evidence to prove a predisposition to commit sexual offenses denies him due process. It does not. (People v. Falsetta (1999) 21 Cal.4th 903, 911-925; People v. Quintanilla (2005) 132 Cal.App.4th 572, 578-579.)
Appellant further argues that whatever the constitutional validity of section 1108, subdivision (a), the trial court abused its discretion when it denied the motion to exclude the evidence as more prejudicial than probative within the meaning of section 352.
In admitting evidence of prior sexual offenses pursuant to section 1108, subdivision (a), the trial court considers the nature, relevance and remoteness of the uncharged offense, the degree of certainty the prior offense was committed, the likelihood admission of the offense will confuse, mislead or distract the jury from its primary inquiry, the burden of the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to outright admission, such as excluding irrelevant and inflammatory details. (People v. Falsetta, supra, 21 Cal.4th at p. 917.)
The trial court has broad discretion in determining whether the probative value of evidence outweighs any potential it may have to prejudice a party or to confuse or mislead the jury. It is only when the exercise of that discretion is " 'arbitrary, capricious or patently absurd' " that we reverse the trial court's decision to admit the evidence. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
The trial court conducted a thorough and thoughtful review of the relevance and potential prejudice arising from the admission of Mildred's testimony concerning appellant's prior sexual offenses. The trial court reasonably found the prior offenses were similar to those charged in this case. While they occurred years before, such remoteness in time is not determinative and, given the nature of sexual offenses, does not necessarily affect the relevance of the evidence. (See People v. Branch (2001) 91 Cal.App.4th 274, 284-286.) The trial court did not abuse its discretion in admitting the prior acts pursuant to section 1108, subdivision (a).
The judgment is affirmed.
WE CONCUR: HUFFMAN, J., AARON, J.