Opinion
F076430
02-26-2020
THE PEOPLE, Plaintiff and Respondent, v. ALBERT MANUEL LOPEZ, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F15905280)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Houry A. Sanderson, Judge. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson, J. and Peña, J.
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INTRODUCTION
A jury found appellant Albert Manuel Lopez guilty of four counts of violating Penal Code section 288, subdivision (a), lewd acts upon a child under the age of 14 years, involving two victims, and of sexually penetrating one victim in violation of Penal Code section 289, subdivision (j). The jury also found true a multiple victim enhancement pursuant to Penal Code section 667.61, subdivision (e)(4). Lopez admitted prior strike allegations.
Lopez contends the trial court abused its discretion under Evidence Code section 352 when it admitted evidence of prior uncharged sexual offenses pursuant to section 1108 involving one victim and the three convictions pertaining to that victim must be reversed. We affirm.
References to code sections are to the Evidence Code unless otherwise specified. --------
FACTUAL AND PROCEDURAL SUMMARY
Lopez was charged in counts 1 and 2 with lewd acts upon a child, McKayla M., who was under 14 years of age. Counts 3 and 5 alleged lewd acts upon a child, Stephanie G. , who was under 14 years of age. Count 4 alleged sexual penetration of Stephanie. A multiple victim enhancement pursuant to Penal Code section 667.61, subdivision (e)(4) also was alleged. In addition, it was alleged that Lopez had suffered two prior strike convictions.
Victim McKayla
Testimony at trial established that in the summer of 2011, Lopez and Vicky B. were in a dating relationship and moved into, along with Vicky's children McKayla and Jonathan, a one-bedroom apartment. McKayla was 12 or 13 years old and Jonathan was nine years old. Soon afterward, Lopez's cousin Corinna, her girlfriend, and the girlfriend's children, Stephanie and her five brothers moved into the apartment. Stephanie was 12 or 13 years old at the time.
McKayla was 13 years old when Lopez touched her the first of multiple times in July or August of 2011. McKayla was sleeping on one of the beds in the bedroom when Lopez touched her vagina under her clothes and "stuffed his fingers" in her. The touching woke McKayla and she moved; Lopez left the bedroom. McKayla did not tell anyone because she was scared and did not know what to do.
After the initial incident, Lopez would touch McKayla almost every day. Even when McKayla's mother was around, Lopez would try and touch her buttocks over her clothes. At times when she was washing dishes, Lopez would come up behind her and "rub up" on her.
A couple months after the first incident, Lopez told McKayla that if she did not like his touching her, he would stop. McKayla told him she did not like it, but Lopez continued to touch her. He also told McKayla that if she told anyone, she would not see her little brother anymore.
The last time Lopez touched McKayla, no one else was around. McKayla was sleeping when Lopez began to rub her vagina over her clothes. She woke up and left the room. They did not say anything to each other.
In the fall of 2011, Stephanie and her family moved out of the apartment and Lopez left shortly after for Arizona. Vicky's neighbor, Leah, and her daughters moved into Vicky's apartment. Around November 2011, Lopez returned to California and moved back into the apartment.
Leah noticed McKayla acting "weird" since Lopez's return. McKayla told Leah about the incidents with Lopez and Leah told Vicky. Vicky confronted Lopez, who left the apartment and went to stay with Stephanie's family.
When McKayla's father found out about the incidents with Lopez, he took McKayla to the hospital for an examination and the police met with McKayla at the hospital. McKayla told the police that Lopez would lie down next to her while she slept and would touch her inappropriately. She stated Lopez would use his finger or hand to touch her vagina under her pajamas. McKayla stated the touching occurred regularly for about a month.
About two weeks later, on January 3, 2012, McKayla was interviewed again by police. She stated the first time Lopez touched her, she awoke to find him placing his hand on her genitals and putting his finger in her vagina. She told police about several other incidents of touching by Lopez; that Lopez would touch her frequently; and the phone call with Lopez where she asked him to stop. She did not tell anyone about the incidents because she felt threatened by Lopez and thought her mother would not believe her.
Victim Stephanie
Lopez began touching Stephanie when she was living in Vicky's apartment. The first incident took place in the bedroom, where Lopez put his finger inside her pants and started touching her. Another time, Lopez touched her vagina over her clothing. Yet another time, Lopez touched her buttocks over her clothing. Stephanie stated Lopez would touch her "often."
After Stephanie and her family moved out of Vicky's apartment, Lopez moved in with them. Lopez continued to touch her vagina, breast, and buttocks, but only outside of her clothing.
Stephanie told McKayla about Lopez's touching her and McKayla told Stephanie he was touching her, too. At some point, Stephanie's mother asked her if Lopez had touched her; Stephanie initially said no because she feared Lopez. When her mother asked her again, Stephanie admitted he had. Her mother contacted the police.
On December 16, 2011, police spoke with Stephanie. On December 27, 2011, Stephanie was interviewed. She described an incident when she was in bed and Lopez touched her genitalia over her clothing; another incident where Lopez inserted his finger under her clothes and into her vagina; and a third incident where Lopez touched her vagina over her clothing.
Section 1108 EvidenceStephanie eventually became more comfortable talking about what Lopez had done and in April 2017, told an investigator from the district attorney's office about other incidents. She had not told the police about all the incidents because she "felt disgusted" and was scared of Lopez.
Stephanie remembered one incident where Lopez had her against a table, with her pants down, and he "put his dick in" between her legs and Stephanie felt "something go in" her vagina. Stephanie also remembered another incident where Lopez had her pants down and put his tongue on her vagina. Another incident Stephanie remembered was when Lopez was driving, and he put his hand over her vagina outside her clothing, then inserted his hand inside her pants and began "rubbing" her vagina.
Defense Testimony
Daniella Isaac, an investigator with the district attorney's office, testified Stephanie told her she did not want to testify because she had not been entirely truthful; she had not told police about everything that happened. Isaac testified that Stephanie had described several incidents with Lopez, including one where he exposed his penis and masturbated after he had rubbed her vagina; two incidents where he attempted to insert his penis into her from behind; and another incident where Lopez removed her clothing and licked her vagina.
Conviction and Sentencing
The jury found Lopez guilty of all charges and found the multiple victim enhancement true. Lopez admitted two prior strike allegations.
At the October 6, 2017 sentencing hearing, the trial court struck one of the prior conviction enhancements. On the sexual penetration conviction, the trial court imposed a determinate term of 8 years, doubled to 16 years. The trial court imposed a sentence pursuant to Penal Code section 667.61, subdivision (j)(2), of 25 years to life, doubled to 50 years to life, for each of the four lewd act convictions, to be served consecutively. The indeterminate terms were to commence after the 16-year determinate term. Various fines and fees were imposed, and credits awarded.
Lopez filed a notice of appeal.
DISCUSSION
Lopez contends the trial court abused its discretion under section 352 because admission of the section 1108 evidence was unduly prejudicial and the convictions for the counts 3, 4, and 5 offenses where Stephanie was the victim must be reversed.
Sections 352 and 1108
Generally, "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." (§ 1101, subd. (a).) However, "[i]n 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." (§ 1108, subd. (a).) "Available legislative history indicates section 1108 was intended in sex offense cases to relax the evidentiary restraints section 1101, subdivision (a), imposed, 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. In this regard, section 1108 implicitly abrogates prior decisions of [the Supreme Court] indicating that 'propensity' evidence is per se unduly prejudicial to the defense." (People v. Falsetta (1999) 21 Cal.4th 903, 911.)
"[S]ection 1108 'radically changed' the general rule prohibiting propensity evidence in 'sex crime prosecutions.' [Citation.] 'By removing the restriction on character evidence in section 1101, section 1108 now "permit[s] the jury in sex offense ... cases to consider evidence of prior offenses for any relevant purpose" [citation], subject only to the prejudicial effect versus probative value weighing process required by section 352.' [Citation.] Evidence of prior crimes is admissible, unless otherwise excluded by ... section 352, whenever it may be helpful to the jury on a commonsense basis, for resolution of any issue in the case, including the probability or improbability that the defendant has been falsely accused." (People v. Robertson (2012) 208 Cal.App.4th 965, 990 (Robertson), italics omitted.)
" 'To be admissible under ... section 1108, "the probative value of the evidence of uncharged crimes 'must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury.' [Citations.]" [Citation.] "The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense. Other factors affecting the probative value include the extent to which the source of the evidence is independent of the charged offense, and the amount of time between the uncharged acts and the charged offense. The factors affecting the prejudicial effect of uncharged acts include whether the uncharged acts resulted in criminal convictions and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses." [Citation.] "The weighing process under section 352 depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules." ' " (Robertson, supra, 208 Cal.App.4th at pp. 990-991.)
Standard of Review
"A challenge to admission of prior sexual misconduct under ... sections 1108 and 352 is reviewed under the deferential abuse of discretion standard and will be reversed 'only if the court's ruling was "arbitrary, whimsical, or capricious as a matter of law. [Citation.]" [Citation.]' [Citation.] 'We review the correctness of the trial court's ruling at the time it was made, ... and not by reference to evidence produced at a later date.' " (Robertson, supra, 208 Cal.App.4th at p. 991.)
Evidentiary Hearing
The trial court held an evidentiary hearing on the admissibility of Stephanie's section 1108 testimony. Stephanie testified at the hearing that she spoke with police in December of 2011 about Lopez's conduct but did not tell police everything that happened because she was afraid of Lopez and thought he might hurt her.
Stephanie also testified that in April 2017, she spoke with an investigator from the district attorney's office and told her about three additional incidents of inappropriate conduct by Lopez. Stephanie described the three additional incidents as Lopez touching her when she was a passenger; Lopez placing her against a table, pulling down her pants, and putting his "dick" between her legs; and Lopez touching her body parts over her clothes.
Defense counsel argued that none of the additional incidents should be admitted. Defense counsel argued that there were other incidents Stephanie had not testified to at the evidentiary hearing; that she might be lying; and that all the incidents were more prejudicial than probative. He also requested that if the incidents described at the evidentiary hearing were admitted, he be allowed to question Stephanie about other incidents to which she did not testify. The prosecutor stated she would have no objection if the defense wanted to ask about other incidents during trial.
The trial court opined that if it were to allow section 1108 evidence, it would allow questioning on all the alleged incidents as defense counsel requested, not just on the incidents selected by the prosecution. The trial court indicated it would also allow questioning of Stephanie regarding any "lack of recollection and the reasons behind her inability to recall."
The trial court found, however, that the section 1108 evidence of prior lewd acts by Lopez had probative value and "is not too prejudicial." The trial court agreed that some of the acts not testified to by Stephanie at the evidentiary hearing were "more egregious in nature" than the charged offenses and stated that defense counsel could choose to ask questions about those incidents or not. The trial court also opined that the "instruction will be read" to the jurors and the court "does not believe that jurors will be confused."
The trial court concluded by allowing section 1108 evidence from Stephanie "to the extent that she's testified to" at the evidentiary hearing. The trial court also decided to allow the defense or prosecution to inquire about any other allegations Stephanie made against Lopez that were not testified to at the hearing.
Trial Testimony and Instruction
During trial, the prosecutor elicited testimony about the incident in the truck where Lopez touched Stephanie's vagina; the incident in the kitchen where he held Stephanie against a table and inserted his penis into her vagina; and the incident where he licked Stephanie's vagina. Defense counsel introduced evidence about the incident where Lopez inserted his penis into Stephanie's vagina from behind; the incident where Lopez inserted his penis into Stephanie while they were in the bedroom; and evidence that Lopez had masturbated after touching Stephanie in the truck.
The trial court instructed the jury that they may, but were not required, to consider the evidence of uncharged offenses if the prosecution had proved by a preponderance of the evidence that Lopez committed those uncharged offenses. The jury was further instructed that if the jury concluded Lopez committed the uncharged offenses, that alone was insufficient to establish his guilt of the charged offenses.
The prosecutor emphasized in closing argument that the uncharged offenses could only be considered if the People had proved by a preponderance of the evidence that Lopez committed those offenses. Defense counsel argued in closing argument that Stephanie had claimed other, uncharged incidents occurred "[j]ust in case that's not enough to get this thing going." Defense counsel told the jury, "It's easier to remember an actual event than it is one that you fabricated in your head."
Analysis
Generally, character evidence in the form of specific instances of uncharged misconduct is inadmissible to prove conduct on a specific occasion. (§ 1101, subd. (a); People v. Ewoldt (1994) 7 Cal.4th 380, 393.) In other words, evidence of other crimes or prior bad acts is not admissible to show criminal disposition or propensity to commit crimes. (Ewoldt, at p. 393.) As an exception to the general rule, section 1108 permits, in sex offense cases, admission of uncharged sexual conduct precisely to show a defendant's propensity to commit similar sex crimes. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013.) Section 1108 is geared to assist the trier of fact in making difficult credibility determinations, given that sex offenses are usually committed in seclusion, without third party witnesses or substantial corroborating evidence. (People v. Villatoro (2012) 54 Cal.4th 1152, 1160, 1164.) As the Supreme Court stated:
"Before section 1108 was enacted, ... section 1101 governed the admission of prior criminal conduct, and a body of law developed concerning how similar the prior conduct had to be to the charged crime; the required degree of similarity varied depending on the use for which the evidence was offered. [Citation.] ... 'In enacting ... section 1108, the Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of ... section 1101.' [Citation.] Or, as another court put it, '[t]he charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under ... section 1101, otherwise ... section 1108 would serve no purpose....' " (People v. Loy (2011) 52 Cal.4th 46, 63.)
However, evidence that is admissible under section 1108 is nonetheless subject to exclusion under section 352. Section 352 provides: "The court in its discretion may 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." The trial court is best situated to evaluate the evidence at issue through the lens of section 352, and, accordingly, enjoys broad discretion in applying the statute. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Furthermore, " ' "[t]he prejudice [that] ... 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. Eubanks (2011) 53 Cal.4th 110, 144.) Rather, ... section 352 is designed to avoid " 'undue prejudice' " because "the ultimate object[ive] of the section 352 weighing process is a fair trial." (People v. Harris (1998) 60 Cal.App.4th 727, 736.)
Here, the trial court concluded Stephanie's testimony of three uncharged lewd acts to which she testified at the evidentiary hearing could constitute probative circumstantial evidence of Lopez's propensity to commit the charged lewd acts, without undue prejudice.
To be admissible, " '[i]t is enough the charged and uncharged offenses are sex offenses as defined in section 1108.' " (People v. Loy, supra, 52 Cal.4th at p. 63; see § 1108, subd. (d)(1)(A); see also People v. Soto (1998) 64 Cal.App.4th 966, 984 [" ' "Many sex offenders are not 'specialists', and commit a variety of offenses which differ in specific character." ' "].) The uncharged acts admitted by the trial court, and introduced by the prosecution, were the same offenses with which Lopez was charged, namely lewd acts and sexual penetration.
The uncharged offenses were close in time to the charged offenses and involved the same victim, "a relevant factor for the court to consider in exercising its discretion." (People v. Cordova (2015) 62 Cal.4th 104, 133.) This "permitted the inference that defendant had a propensity to commit such [misconduct]." (Id. at p. 134.) The trial court noted the three uncharged offenses the prosecution sought to admit were "not too prejudicial." Those offenses that Stephanie did not describe at the evidentiary hearing were "more egregious" as the trial court noted, but it was defense counsel who elicited information about these other uncharged offenses during the trial. Had Lopez considered these offenses too inflammatory, defense counsel should not have elicited testimony on these uncharged offenses during trial.
Furthermore, the additional propensity evidence elicited by the prosecution did not require any additional witnesses and did not consume an undue amount of time. The additional testimony was relatively brief, which ensured the jury would not expend an inordinate amount of time "trying the uncharged offense[]" so as to "dwarf[] the trial on the current charge [and] unfairly prejudice the defendant" (People v. Frazier (2001) 89 Cal.App.4th 30, 42).
Finally, the trial court instructed the jury with CALCRIM No. 1191, which offset the risk the "jury might punish the defendant for his uncharged crime[] regardless of whether it considered him guilty of the charged offense." (People v. Frazier, supra, 89 Cal.App.4th at p. 42). After the presentation of evidence in the case, the trial court instructed the jury with CALCRIM No. 1191 regarding the uncharged offense evidence that was introduced in the trial. CALCRIM No. 1191, as given to the jury, provided in part: "You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true."
The trial court's instructions on prior act evidence were correct and cleared up any potential confusion, and, in any event, we presume the jury followed the instructions given by the court. (People v. Yeoman (2003) 31 Cal.4th 93, 139; People v. Boyette (2002) 29 Cal.4th 381, 436.)
The trial court conducted an evidentiary hearing and concluded the section 1108 evidence was not unduly prejudicial or confusing and would not consume an undue amount of time. The trial court's ruling on the admissibility of this evidence was not " ' "arbitrary, whimsical, or capricious as a matter of law." ' " (Robertson, supra, 208 Cal.App.4th at p. 991.)
We find no abuse of discretion.
DISPOSITION
The judgment is affirmed.