Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. EE504696
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
Defendant Mario Ernesto Rivas was originally charged with five counts of child molestation involving three different victims, F., S., and E. After his first jury trial, he was found guilty on count 3, lewd or lascivious act on a child under 14 (Pen. Code, § 288, subd. (a)), his ten-year-old goddaughter F. He was found not guilty on count 5, lewd or lascivious act on a child under 14 (§ 288, subd. (a); victim S.). The trial court declared a mistrial as to count 1, aggravated sexual assault (former § 269, added by Stats. 1994, 1st Ex. Sess., ch. 48, § 1, p. 8761, eff. Nov. 30, 1994; victim F.), count 2, lewd or lascivious act on a child by force (§ 288, subd. (b)(1); victim F.), and count 4, lewd or lascivious act on a child under 14 (§ 288, subd. (a); victim E.). After his second jury trial, defendant was found guilty on counts 1, 2 and 4. The jury also found true the multiple victim allegations (§ 667.61). The trial court imposed a total term of 60 years to life.
All statutory references hereafter are to the Penal Code unless otherwise stated.
On appeal, defendant contends that all four convictions should be reversed due to instructional error. Specifically, defendant argues that the trial court erred in the first jury trial by giving a jury instruction based on CALCRIM No. 207, which violated his due process right to prepare and present his alibi defense to count 3. The trial court erred in the second jury trial, according to defendant, by admitting the unconstitutional prior conviction on count 3 under Evidence Code section 1108 for the purpose of showing that he had a propensity to commit such crimes. For reasons that we will explain, we find no trial court error and therefore we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The First Trial
The first amended information filed on January 11, 2007, charged defendant with five felonies: aggravated sexual assault of a child under 14, victim F., who was 10 or more years younger than the defendant, on or about and between February 24, 1997, and February 23, 1999 (former § 269, count 1); lewd or lascivious act on a child, victim F., by force, violence, duress, menace and fear, on or about and between January 12, 1999, and May 30, 1999 (§ 288, subd. (b)(1); count 2); lewd or lascivious act on a child under 14, victim F., on or about and between December 24, 2003, and December 26, 2003 (§ 288, subd. (a); count 3); lewd or lascivious act on a child under 14, victim E., on or about and between January 1, 1995, and October 21, 1996 (§ 288, subd. (a); count 4); and lewd or lascivious act on a child under 14, victim S., on or about and between January 1, 1995, and October 21, 1996 (§ 288, subd. (a); count 5). The information also included two multiple victim allegations (§§ 1203.066, subd. (a)(7), 667.61).
The case proceeded to a 12-day jury trial in January 2007. The following summary of the trial testimony focuses on the evidence relevant to count 3, lewd and lascivious or lascivious act on a child under 14 (§ 288, subd. (a)), victim F.
1. Prosecution Evidence
Victims E. and F. belong to a large extended family that also includes defendant. Defendant is married to Blanca Rivas, who is the second cousin of Ana. Ana was married to Carlos. When Ana and Carlos married, Carlos already had a daughter, victim E. During their relationship, Ana and Carlos had three children, victim F. and F.’s two brothers. Ana and Carlos divorced in 2001. Defendant and Blanca are the godparents of F.
Although E., F. and F.’s two brothers were referred to as stepsisters or stepbrothers throughout the record, it appears that they are actually half-brothers and half-sisters because they have the same father, Carlos.
When E.’s father, Carlos, was still married to Ana, E. would spend every other weekend and vacations at their house. She often saw defendant at her father’s house because defendant visited or attended family gatherings. An uncomfortable incident involving defendant occurred when E. was eight or nine years old. At the time of the incident, E. and F., age two or three, were in their father’s bedroom sitting on the floor and coloring. While E. was “sitting Indian style,” with her legs crossed, defendant came in, used the bathroom, then crouched down behind E. and put his hands down her pants. He also touched her vaginal area inside her clothing. After about 30 seconds, E. got up, left the room, and went to her father. E. did not think that F. saw what defendant was doing because F. kept coloring throughout the incident. About six months or a year later, E. told her father about the incident. After that, E.’s father made sure that defendant was never around her. The next person E. talked to about the incident was a police officer who called her and asked her if she knew defendant. E. did not tell her mother about the incident until E. got a telephone call informing her that the case was going to trial. E. discussed the incident with F. for the first time after the preliminary hearing.
After Ana and Carlos separated, Ana and her children moved into an apartment. Defendant and his family were frequent guests in their home. F. has known defendant all of her life. Ana found out that defendant had molested F. after F. was interviewed in March 2005 by police in connection with their investigation of a neighbor who had allegedly molested F. and the daughters of the neighbor’s girlfriend. After the interview, the police officer told Ana that another person had been touching F. About one month after the police interview, F. told Ana that defendant had molested her.
Ana learned from their nanny that on one occasion defendant and Blanca had come to visit F. while Ana was at work, because they had brought “some kind of shoes” to massage F., who was in a wheelchair due a leg infection. Defendant and Blanca also visited Ana and her children on Christmas Eve in 2003. They stayed a couple of hours and dropped off presents for the children. During their visit, Ana cooked and F. and her brothers played video games in the boys’ bedroom. At some point, defendant went to the boys’ bedroom to say hi to the children. After defendant and Blanca left, F. said she had a headache and went to bed.
At the time of the trial, F. was 13 years old. She recalled the three incidents from which the molestation charges against defendant arose. The first time defendant touched her was when she and her mother went to defendant’s house for lunch. After they arrived, defendant told F. that he wanted to show her the cats, which were upstairs. F. went upstairs with defendant and into a bedroom. Defendant told F. to check under the bed for the cats. He then pushed her onto the bed, pulled her pants down, put his hands on her legs and licked her “private part.” When F. told him that she wanted to go to her mother, he stopped and F. pulled her pants up. F. then went to her mother.
The second incident occurred on a day when F. was at home with her babysitter. At the time, F. had a leg infection and could not walk. She was lying on the bed and watching television in her mother’s bedroom when defendant and Blanca came to visit. Defendant came into the bedroom alone, got on the bed and pulled down F.’s pants. When defendant had F.’s pants and underpants down around her knees, he started licking her “private part.” He also rubbed her thighs. F. did not tell her babysitter about the incident. F. told a detective about another incident at her house, during the time she had a leg infection, in which defendant rubbed her thighs and told her brother he was giving her a massage.
F. remembered that the third incident occurred “[a]round Christmas.” F. “definitely remembered” that “it was right around Christmas,” but did not recall whether incident occurred on Christmas Day or Christmas Eve. F. was at home with her mother and brothers. Defendant and Blanca were also present. F. went into her brothers’ bedroom where they were playing a video game on a television set. Each brother was sitting on one of the two beds in the room. F. sat on the bed behind her brother, H. At some point defendant came into the room and sat next to F. Defendant then scooted over to her and put his hand on her bottom outside her dress and squeezed it. F. scooted over to her brother and defendant scooted closer to her and squeezed her bottom again. When defendant touched her bottom he would give her money. F. did not see her brothers look at her and she did not tell them what was happening because she was scared and afraid. Eventually, F. got up and went into the kitchen.
Victim S. was a child neighbor of Ana and her family. S. was two years older than E. and six years older than F., but they were all friends and S. would often visit Ana’s family’s home. One time when S. was visiting their house, someone touched her in a way that made her feel uncomfortable. S. was asleep on the couch in the living room when she woke up and discovered “an older man just rubbing” the small of her back over her clothing. S. did not remember who the man was, but all of the people present at the house at that time were from El Salvador.
Scott Simpson, a sexual assault investigator for the City of Sunnyvale, interviewed F. in the course of the investigation of defendant. F. was 12 years old at the time of her March 2005 interview. According to Simpson, F. stated that she told her mother about “the Christmas incident, molestation at Christmas of 2003 incident,” in 2004.
A senior criminal investigator in the district attorney’s office, Carl Lewis, gave expert testimony regarding child abuse accommodation syndrome, which concerns behaviors or conditions that may be present in children who have been sexually abused, such as secrecy and delayed disclosure.
2. Defense Evidence
Oscar Rivas is the 31-year-old son of defendant. He recalled that the family tradition for the past 20 years has been to spend Christmas Eve at defendant’s house and Christmas Day at his uncle’s house. During the past five years, their custom was to get together from about 4:00 p.m. or 5:00 p.m. until 10:00 p.m. on Christmas Eve and again during “approximately the same time frame” on Christmas Day. On Christmas Eve in 2003, defendant was never out of Oscar’s sight. Defendant was at home all day and never left the house. Oscar knew that his parents did not go to Ana’s house at any time during the afternoon or evening because he was living at home then. Defendant also never left Oscar’s sight on Christmas Day in 2003. Neither defendant nor Blanca delivered gifts to Ana or her children at Christmastime in 2003.
At other times, Oscar testified, defendant would occasionally go with Blanca to visit Ana, who is Blanca’s second cousin, because Blanca hated to drive by herself. Eight or nine years ago, Ana came to their house with her children to see the cats. The cats belonged to Oscar and lived in his room. He took F. and her brothers to see the cats.
Sofia Ayala, a friend of defendant’s family, has known defendant for most of her life and considers him a close friend. In 2003, she spent Christmas Eve at defendant’s house. She arrived at about 7:00 p.m. and left at about 11:00 p.m. Defendant was there during that time. She understood that defendant and his family spend Christmas Day with a family member in South San Francisco. Based on her observations of defendant, she believes that he is not a child molester.
Defendant’s niece, Claudia Aguirre, also testified. Her father Mauricio is defendant’s brother. The family tradition is that they all spend Christmas Day at her parents’ house in South San Francisco, but defendant and his family spend Christmas Eve at defendant’s house. She did not recall spending Christmas Eve at defendant’s house in 2003. However, she recalled that on Christmas Day in 2003, she arrived at her parents’ house at 11:00 a.m. and defendant and Blanca were already there. They left at about 7:00 p.m. Defendant is a father figure to her and she does not believe that he is a child molester.
Blanca Rivas stated that defendant is her husband and Ana is her second cousin. She visited Ana approximately twice a month but did not consider herself to be close to Ana. Her son Oscar had two cats that lived in his room, but defendant never took F. upstairs to see the cats. Blanca remembered Christmas Eve in 2003 because her goddaughter was visiting from El Salvador. Neither she nor defendant went to Ana’s house on Christmas Eve in 2003. They had a dinner party at their house that began at 3:00 p.m. and three of their guests stayed the night. On Christmas Day in 2003, she and defendant went to his brother Mauricio’s house in South San Francisco. However, Blanca always gave Christmas gifts to Ana’s children sometime during the last couple of days before Christmas. Defendant never went with her to deliver the gifts
Blanca also recalled that F. had an infected leg when she was eight or nine years old. She went by herself to visit F. because F. was alone with the maid. When she arrived, F. was sitting in a wheelchair. Blanca also stated that she has observed defendant around many children and believes that he is a good family man.
Defendant testified on his own behalf. He recalled visiting Ana with his wife occasionally. He also gave money to F. and her brothers. He gave more money to F. because she is his goddaughter. However, defendant denied that he had molested F. as described in her testimony. He never took F. upstairs to see the cats; the cats belonged to his son Oscar and Oscar took the children to see the cats. Defendant also never visited F. when she had a leg infection. Defendant did not recall telling Dr. John Shields, the defense psychological expert, that he went to see F. when she was ill and using a wheelchair.
Regarding his family’s Christmas traditions, defendant stated that Christmas Eve would be spent at home and Christmas Day would be spent at his brother’s house. He never left his house on Christmas Eve in 2003 and never went to Ana’s apartment that day. He also never took any Christmas presents to Ana’s children.
The trial court found that Dr. Shields was qualified to render expert opinions in the general area of forensic psychology. Dr. Shields gave his opinion that defendant did not manifest any of the characteristics of sexual offenders, or show any traits or characteristics commonly observed among persons at risk to engage in sexually deviant behavior. Dr. Shields also stated his opinions that child sexual abuse accommodation syndrome does not exist, and that children are susceptible to suggestion that may lead to unreliable disclosure.
3. Prosecution Rebuttal
Dr. Dale Arnold, a consulting psychologist in the area of forensic clinical psychology, was the prosecution’s rebuttal expert. He gave his opinion that pedophiles do not have common characteristics other than their deviant sexual interest and that tests used to determine the risk of future sexual offense cannot be validly used to determine whether a person is a pedophile. Dr. Arnold also stated that Dr. Shield’s evaluation of defendant was incomplete.
4. Jury Instructions and Closing Argument
After testimony was completed, the trial court instructed the jury on January 22, 2007. Among the instructions given was a version of CALCRIM No. 207, as follows: “It is alleged that the crimes occurred on or about the dates alleged in the first amended information. The People are not required to prove that the crime took place exactly on those days but only that it happened reasonably close to those days.”
The next day, January 23, 2007, the jury submitted the following question to the court: “On count 3, please further explain the time frame of 12/24 to 12/26/03. May a few days in either direction be considered?” The record reflects that the court gave the following answer in writing to the jury on January 24, 2007: “It is alleged that the crime charged in Count Three occurred on or about and between December 24, 2003 and December 26, 2003. The People are not required to prove that the crime took place on those precise dates; it is sufficient if the proof shows that the crime took place reasonably close to those dates.” Defense counsel did not object to the trial court giving a version of CALCRIM No. 207 or to the answer the court gave to the jury’s question regarding count 3.
During closing argument, the prosecutor argued, among other things, that “Count 3 is the defendant touching [F.’s] buttocks. The testimony she gave was that he was grabbing it and squeezing it and he did it two to three times. And this is the incident that’s somewhere around Christmas of 2003. [¶] Again, I set out the dates. The dates in the information, again, are approximate dates based on her testimony and also her statement to Detective Simpson. It occurred sometime around Christmas of 2003.”
Defense counsel stated his closing argument that he would refer to count 3 “as the Christmas incident.” Defense counsel also stated, “That’s the one apparently on Christmas Eve 2003....” Regarding defendant’s alibi defense to count 3, counsel argued, “Mario Rivas. He said all of the above, that he was there at the family home on Christmas Eve and on Christmas Day with his brother. What does that show, ladies and gentlemen? It shows that this alleged molestation, which is the last one in line in 2003, which is Count Three, did not take place. There is no credible evidence that Mr. Rivas was ever there with Blanca Rivas on Christmas Eve or Christmas Day or some other day delivering presents or whatever. Because Blanca Rivas says she delivered presents normally on three or four days before Christmas, on the 20th perhaps. [¶]... [¶] So on those days of this alleged molestation, Blanca Rivas was not there, and more importantly, Mario Rivas was not there. Why? Because we have all this testimony that it just didn’t happen that way. It did not exist. It’s a false statement.”
In rebuttal argument, the prosecutor referred to the “Christmas Eve or Christmas Day incident with [F.],” but then stated that “we don’t have a specific date for this incident. We have a range of dates. And as the jury instruction that the Court read to you [sic], I don’t have to prove that it happened on that specific day, either the 24th or the 25th, just that it happened reasonably close to those dates. We know it happened around Christmas of 2003. That’s what Ana said and that’s what [F.] said. They were both clear about that time frame, just not the particular day.”
As to defendant’s alibi defense to count 3, the prosecutor argued that “Now, there was a lot of evidence trying to pigeonhole where the defendant was on Christmas Eve or Christmas Day. And I submit to you that’s not really dispositive because of that instruction. We don’t have to prove that it happened on a particular day, just reasonably close to those days so we have a time frame.”
5. Jury Verdict and Sentencing
On January 29, 2007, the jury found defendant guilty on count 3, lewd or lascivious act on a child under 14, victim F., on or about and between December 24, 2003, and December 26, 2003 (§ 288, subd. (a)); and not guilty on count 5, lewd or lascivious act on a child under 14, victim S., on or about and between January 1, 1995, and October 21, 1996 (§ 288, subd. (a)), and also not guilty as to a lesser crime to count 5 (battery, §§ 242, 243, subd. (a)). The trial court found that the jury was “hopelessly deadlocked” with respect to counts 1, 2 and 4, and declared a mistrial as to those counts.
Defendant filed a motion for new trial on November 14, 2007, in which he argued that the evidence was insufficient to support the conviction on count 3. In a letter to the trial court dated February 5, 2008, defense counsel requested that the motion be taken off calendar. The record does not reflect that the motion for new trial was ever restored to the calendar or ruled upon.
B. The Second Trial
The second trial on counts 1, 2, and 4 was set to begin on November 13, 2007. Defendant’s motions in limine related to count 3 included a motion to exclude disclosure of the prior mistrial and the conviction on count 3, a motion “to exclude use or mention” of the conviction on count 3, a motion to exclude the conviction on count 3 for purposes of impeachment, and a motion to exclude the conviction on count 3 for the purpose of proving guilt on the three present offenses.
The prosecution’s motions in limine included a motion for permission to use of the conviction on count 3 for impeachment if defendant testified and a motion for permission to introduce uncharged sexual misconduct pursuant to Evidence Code section 1108, including “the incident that occurred on Christmas Eve in 2003 when the Defendant touched, fondled and squeezed [F.’s] buttocks in her brother’s bedroom while they played video games.”
Evidence Code section 1108, subdivision (a) provides, “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”
The trial court ruled that the People would be allowed to prove the conviction on count 3, to introduce the incident charged as count 3 as uncharged sexual misconduct under Evidence Code section 1108, and to use the conviction on count 3 as impeachment if defendant testified.
1. Prosecution Evidence
F.’s mother, Ana, was the first witness to testify at the second trial. Defendant is F.’s godfather and is 59 or 60 years old. Before the last couple of years, defendant’s family would visit every Saturday and defendant’s wife, Blanca, would sometimes visit during the week. During Christmas 2003, defendant and Blanca came to give presents to Ana’s children, as usual. They came around 5:00 p.m. and stayed for about three hours, then went to defendant’s brother’s house for dinner. Defendant watched the children play video games while Blanca talked to Ana while she was cooking. F. went to her room when defendant and his wife left, saying that she had a headache. Ana recalled that defendant’s visit took place on “Christmas afternoon,” but she was not sure if it was Christmas Eve or Christmas Day.
Ana and her children would also visit defendant’s family at their house. On one occasion, they were invited for dinner and while they were at defendant’s house, defendant called F. from the stairs to show her the family’s cats. Also, Ana was aware that defendant and Blanca had visited F. when she was in a wheelchair.
F.’s “stepsister,” E., testified that her father, Carlos, was married to Ana. Before Carlos and Ana divorced, E. would visit them and their three children (F. and her brothers) every other weekend. She met defendant at her father’s house when defendant would come over for dinner. When she was seven to nine years old, an incident involving defendant occurred at her father’s house. She and F., age two or three, were on the floor of their father’s bedroom coloring. E. was sitting “Indian style” with her legs crossed. Defendant came in, used the bathroom, came out, and crouched down behind E. He put his right hand in her pants and rubbed her vaginal area for about 30 seconds. E. felt really uncomfortable and got up. Defendant removed his hands and let her go. During the incident, E. did not yell out “Stop” or call for her father or brother. E. does not believe that F. saw defendant touching her.
About six months to a year later, during a weekend visit when defendant was supposed to come over for dinner, E. told her father what defendant had done to her. She waited to tell her father because she was afraid of what her father might do. Her father said she did not have to worry about defendant because he would not come to the house again. E. did not tell her mother about the incident until March 2005 when she was contacted by a detective regarding the case going to trial. In 2006, she talked to F. about the incident at Ana’s request after the preliminary hearing because F. felt very emotional about having to testify.
In her testimony, F. stated that defendant is her godfather and she has known him all of her life. On more than one occasion, defendant touched her in an uncomfortable way. Her memory of the incidents was better in March 2005 when she talked to Detective Simpson. The first incident occurred when F., age three or five, and her mother went to defendant’s house to eat lunch. Defendant and his wife Blanca were there. Defendant asked her to come upstairs and look for the cats. F. went with defendant into his bedroom, where he told her look under the bed for the cats. Defendant then pushed her onto the bed with his hands on her shoulders. She fell on her back and defendant pulled her pants and underwear down around her knees. He then started licking her “private parts” with his hands holding her thighs. Defendant stopped when she told him she wanted to go to her mother. After defendant pulled her pants up, F. went to her mother. She did not tell her mother what had happened because she was scared.
The next incident occurred at the time when F., who recalled being age six or seven, had a leg infection and could not walk. On the day of the incident, F. was at home with her babysitter in her mother’s room watching television when defendant and Blanca came to visit. Defendant came into the bedroom, got on the bed, and pulled down her pants and underwear down to her knees as she was lying on her back. He then began licking her “private part” while squeezing her thighs. Later that day, defendant came back into the bedroom and started rubbing her thighs and squeezing her bottom. Her brother was there and he asked defendant what he was doing. Defendant replied that he was giving F. a massage.
The other time that defendant touched F. was “during Christmas,” either Christmas Eve or Christmas Day, when F. was eight or nine years old. Defendant and Blanca came and stayed for a couple of hours. F. did not want to be around them so she went into her brothers’ bedroom where they were playing a video game. The room had two beds and a television. F. sat next to one of her brothers on one bed, while her other brother was on the other bed. Defendant came in and sat down next to F. He then started scooting over to F. and putting his hand on her bottom, outside her dress, and squeezing it. F. scooted closer to her brother but defendant scooted closer to her, again putting his hand on her bottom and squeezing it. Defendant also started giving her money as he was touching her, about $20 in one dollar and five dollar bills. This happened about two to four times. F. did not say anything at the time because she was too scared. Her brothers were focused on the video game and looking towards the television. The incident ended when F. walked out of the room. On cross-examination, F. stated that the incident occurred on Christmas Eve, because she remembered being allowed to open a gift.
After F.’s testimony concluded, the trial court informed the jury that the court was going to take judicial notice, as follows: “The Court will take judicial notice that on January 29, 2007, the defendant, Mario Ernesto Rivas, was convicted for the crime of committing a lewd and lascivious act on a child under 14 years of age. The child was [F.] Doe, on or about December 24th, 2003, and December 26th, 2003, in the County of Santa Clara, state of California, in violation of [section] 288, [subdivision] (a), a felony.”
Detective Scott Simpson is employed by the Sunnyvale Department of Public Safety. He was previously assigned to investigate sexual assault crimes. In March 2005, Detective Simpson interviewed F. regarding a report that F. had been sexually assaulted by a family member. During the interview, F. told him that defendant “entered the bedroom while she was lying on the bed. He then closed the door because the door had been opened, and then after he closed the door, that is when he sexually assaulted [F.] by pulling down her pants, by pulling down her underwear, and by licking her vaginal area.”
The last prosecution witness was Carl Lewis, a senior inspector with the Santa Clara County District Attorney’s office, who provided expert testimony regarding child sexual abuse accommodation syndrome.
2. Defense Evidence
Sofia Ayala is a friend of Blanca Rivas who has known defendant for many years and considers him a close family friend. Their families would get together on a regular basis, especially for Christmas or birthdays. Ayala recalled spending Christmas Eve of 2003 with defendant’s family. She arrived at defendant’s house around 7:00 p.m. and left around 10:00 p.m. or 11:00 p.m. Defendant was present the entire time. She has observed defendant around children during many family get togethers and was around him as a child. She was not afraid of him and never saw him do anything improper with children. She is aware that defendant has been convicted of child molestation, but that knowledge does not change her opinion of defendant.
Defendant’s niece Claudia Aguirre also testified. Defendant and his wife Blanca are her godparents. It was a family tradition for defendant and Blanca to spend Christmas Day with Aguirre’s family at her father’s home in South San Francisco. She would also see defendant and Blanca at least once a month throughout the year. Defendant has a reputation for being an “uncle figure,” and being a very attentive host to everyone, including children. She never saw defendant doing anything inappropriate with a child.
Blanca Rivas testified that Ana is her second cousin and not a member of her immediate family. Her son Oscar lived at home until he moved out in 2004. Oscar had cats that were kept in his room. She was not aware of defendant ever showing the cats to anyone, including Ana’s children. Ana never brought F. to visit Blanca without her other children.
Blanca recalled visiting F. at her home when F. was eight or nine years old and had a leg infection. Blanca went by herself. Defendant stayed home because he was tired after work. At the time of the visit, F. was in a wheelchair and was at home with her two brothers and the maid. Blanca did not visit F. at any other time during her illness. On cross-examination, Blanca stated that she did not remember telling Dr. Shields, the defense psychological expert that she and defendant visited F. when F. was sick and had to use a wheelchair. Blanca did recall bringing F. a pair of vibrating sandals to stimulate the circulation in her legs.
Regarding their family Christmas traditions, Blanca explained that in El Salvador, their country of origin, Christmas is celebrated on December 24, Christmas Eve, in the evening. She and her family spend Christmas Eve in their own home. Christmas Eve of 2003 was memorable because her goddaughter Beatriz came from El Salvador for a visit. Defendant was not out of her presence for more than 10 minutes at any time on Christmas Eve of 2003. The next day, Christmas Day of 2003, they went to defendant’s brother’s house in South San Francisco for Christmas lunch. They did not go to Ana’s house on December 23, December 24, December 25, or December 26 of 2003. Blanca alone delivered gifts to Ana’s children in 2003 around December 20 or 21 in the morning.
Oscar Rivas, age 31, is the son of defendant and Blanca. The family always spends Christmas Eve at home and visits his uncle’s family in Daly City on Christmas Day. Oscar remembered Christmas Eve of 2003 because some friends came over. He was at his parents’ home the entire day and his father was never out of his sight for more than 20 minutes during the day. His parents never left their home on Christmas Eve of 2003. On Christmas Day of 2003, they went to his uncle’s house at about 5:00 p.m. or 6:00 p.m. Before that time, his parents did not leave their home on Christmas Day of 2003.
When Oscar was living in the family home, he had two cats that stayed in his room under his bed. He showed the cats to all three of Ana’s children about eight or nine years ago. He did not see defendant take F. upstairs at any point in time during the visit by Ana’s family. Oscar has never seen his father do anything inappropriate with children and does not believe that he committed the alleged crimes.
In his testimony, defendant stated that his family traditionally spent Christmas Eve at home and Christmas Day at his brother’s house. He remembered Christmas Eve of 2003 because they had special guests, including his wife’s friend from El Salvador. He never left his home at any time on Christmas Eve of 2003. There was no reason that they would have gone to Ana’s house on Christmas Eve. He did not go to Ana’s house on Christmas Day of 2003 and did not see F. on December 23, 2003. Defendant would usually socialize with Ana about five times a year, but not around the holidays.
Regarding the cats, defendant stated that it was Oscar’s job to take care of the cats, which he kept beneath his bed. Defendant never showed the cats to any children. He went in a group with Oscar to take the children upstairs to show them the cats, but the group continued on while he returned after going halfway up the stairs.
Defendant knew that F. had a problem or infection with her leg. However, he never visited F. when she was in a wheelchair and never told Dr. Shields that he had done so. When defendant spoke with Dr. Shields, there was no interpreter present, unlike the trial. Defendant wanted an interpreter for his conversation with Dr. Shields. The tests that Dr. Shields gave him were in Spanish.
Defendant denied that he ever went into a bedroom at Ana’s home where E. was playing and stuck his hand down her pants. He also denied all of the allegations of child molestation, including the Christmas 2003 incident involving F. Defendant also stated that E. was lying when she testified that he put his hands down her pants and rubbed her vaginal area, and that F. lied during her testimony.
While defendant remembered receiving a pretext telephone call from Ana that was recorded by the Sunnyvale Police Department, he denied saying that he had affection for F. and would visit her. However, defendant did give some money to F. and her brothers. During the pretext telephone call, he said that he has always given more money to F. than her brothers because she is his godchild. He has only given money to F. once.
The last time defendant saw F. was in February 2005. Defendant dropped by Ana’s home by himself to give F. a birthday present. He left after a 15-minute conversation with Ana and her aunt. The only time Ana and her children visited defendant’s home was the time that Oscar showed the cats to them.
3. Prosecution Rebuttal
Dr. Shields, the defense psychological expert, was called by the prosecution to testify as a rebuttal witness. Dr. Shields interviewed defendant on July 19, 2006, in English. He was not told that an interpreter was required for defendant, otherwise he would have arranged for one to be present. Dr. Shields did not have any difficulty communicating with defendant, who was able to adequately speak and express his ideas in English. The tests that Dr. Shields gave defendant were in English. Defendant did not indicate that Spanish was preferred or required for speaking, reading, or conversing.
Dr. Shields recalled that defendant told him that he and Blanca visited F. when she had a leg infection and needed a wheelchair. Defendant said that it was a brief visit and they just dropped off a gift and left. Dr. Shields also spoke with Blanca, who stated that she and defendant had gone together to visit F. when she was ill with a leg infection.
4. Jury Instructions and Closing Argument
The jury instructions given on December 3, 2007, included the following instruction regarding witness testimony: “In evaluating a witness’ testimony, you may consider anything that reasonably tends to prove or disprove the truth of accuracy of that testimony. Among the factors that you may consider are: [¶]... [¶] Has the witness been convicted of a felony?”
Regarding uncharged crimes, the following instruction was given: “The People presented evidence that the defendant committed a crime of lewd and lascivious act on a child that was not charged in this case. This crime is defined for you elsewhere in these instructions. You may consider that evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offense. [¶]... [¶] If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the offenses charged in this case.”
During closing argument, the prosecutor argued that the prior conviction on count 3 could be used as propensity evidence, as follows: “Now, on the [January 29, 2007] conviction itself and the 2003 incident, and this I’m covering under evidence of uncharged sex crimes, and for all intents and purposes, this crime that you’ve heard about, the 2003 incident is uncharged for your purposes. It’s not before you as a conviction or as a count that you are supposed to make a determination of guilt. Okay. [¶] It’s here for a limited purpose, and I’ve summarized the law as it pertains to how you’re supposed to utilize evidence of other sex crimes. If you decide that the defendant committed the uncharged sex offense, you may conclude... from the evidence that the defendant is predisposed or inclined to commit sex offenses and can conclude that the defendant was likely to commit the crimes charged in this case. It’s propensity evidence. [¶]... [¶] I’m not saying that simply because the defendant committed the crime in 2003, he committed the crimes that occurred before that with [F.], with [E.], that because he committed the act in 2003, he committed [the charged crimes].”
The prosecutor also argued that the prior conviction on count 3 could be used to determine credibility: “Now, you can also use this to assess [defendant’s] credibility, and that is considered a crime of moral turpitude.... [T]here has been an adjudicated act of a sexual assault, and as a result of that adjudication, you can use that to assess the victim’s credibility....” [¶]... [¶] This is unusual where you have a conviction that actually involves the victim who’s before you, so this conviction actually pertains to [F.], and you can use that to support, bolster her credibility that what she’s doing is telling you the truth about what happened in these other instances.”
5. Jury Verdict and Sentencing
On December 6, 2007, the jury found the defendant guilty on all three counts: count 1, aggravated sexual assault of a child under 14, victim F., who was 10 or more years younger than the defendant, on or about and between February 24, 1997, and February 23, 1999 (former § 269; count 2, lewd or lascivious act on a child, victim F., by force, violence, duress, menace and fear, on or about and between January 12, 1999, and May 30, 1999 (§ 288, subd. (b)(1)); and count 4, lewd or lascivious act on a child under 14, victim E., on or about and between January 1, 1995, and October 21, 1996 (§ 288, subd. (a)). The jury also found true the multiple victim allegations. (§§ 1203.066, subd. (a)(7), 667.61).)
Count 4 was renumbered count 3 for purposes of the second trial, to prevent the jury from knowing that the second trial was a retrial on counts 1, 2 and 4.
The sentencing hearing took place on February 29, 2008. Before sentencing the defendant, the trial court stated that the court was “mindful of the fact that the defendant lied in his testimony, specifically about not ever going to visit [F.] when she was laid up for those months and with that leg disease....” The court also determined that the offenses were separate incidents and therefore it was appropriate that the sentencing be consecutive on each count. Therefore, the trial court sentenced defendant to a total term of 60 years to life, which included consecutive terms of 15 years to life on counts 1, 2, 3, and 4.
Defendant filed a timely notice of appeal from the judgment on April 18, 2008.
III. DISCUSSION
On appeal, defendant contends that all four convictions should be reversed due to instructional error. Defendant limits his instructional error argument to asserting that the trial court erred in the first jury trial by giving a jury instruction based on CALCRIM No. 207, which violated his due process right to prepare and present his alibi defense to count 3 and thereby rendered the conviction on count 3 unconstitutional. The trial court erred in the second jury trial, according to defendant, by admitting the unconstitutional prior conviction on count 3 under Evidence Code section 1108 for the purposes of showing that he had a propensity to commit such crimes and to impeach defendant’s credibility.
As stated in the first amended information, count 3 alleged a lewd or lascivious act on a child under 14, victim F., on or about and between December 24, 2003, and December 26, 2003 (§ 288, subd. (a).) The version of CALCRIM No. 207 given during the first jury trial was as follows: “It is alleged that the crimes occurred on or about the dates alleged in the first amended information. The People are not required to prove that the crime took place exactly on those days but only that it happened reasonably close to those days.” The jury subsequently submitted the following question to the trial court: “On count 3, please further explain the time frame of 12/24 to 12/26/03. May a few days in either direction be considered?” The record reflects that the court gave the following answer in writing to the jury on January 24, 2007: “It is alleged that the crime charged in Count Three occurred on or about and between December 24, 2003 and December 26, 2003. The People are not required to prove that the crime took place on those precise dates; it is sufficient if the proof shows that the crime took place reasonably close to those dates.”
CALCRIM No. 207 states, “It is alleged that the crime occurred on [or about] ________ (insert alleged date). The People are not required to prove that the crime took place exactly on that day but only that it happened reasonably close to that day.”
Defendant argues that because the prosecution’s evidence fixed the date of the count 3 offense to December 24, 2003 or December 25, 2003, and defendant presented an alibi of spending those two days with friends and family, a version of CALCRIM No. 207 should not have been given. Defendant further argues that the instructional error was compounded by the jury’s question, which shows that they “had to have focused on shifting the possible dates in order to find a way to circumvent the alibi testimony.”
The People respond that the trial court properly instructed the jury pursuant to CALCRIM No. 207 because the evidence did not show that the count 3 offense was committed at a specific time to the exclusion of any other time, or that the offense occurred on Christmas Eve or Christmas Day to the exclusion of any other day or time reasonably close to Christmas 2003. They point out that the prosecutor argued to the jury that the count 3 offense occurred “somewhere around Christmas of 2003.” (Emphasis omitted)
In determining the merits of defendant’s argument of instructional error, we are guided by well established rules. Generally, a jury should “limit its consideration of the time of the offense to that shown by the evidence.” (People v. Wrigley (1968) 69 Cal.2d 149, 157.) This is particularly important where there is evidence that the defendant has a complete alibi for the specific time of the offense established by the prosecution. Under these circumstances, it is error to lessen the prosecution’s burden by instructing the jury that proof on or about the alleged date is sufficient. (People v. Jones (1973) 9 Cal.3d 546, 557, overruled on other grounds in Hernandez v. Superior Court (1989) 49 Cal.3d 713, 729; People v. Seabourn (1992) 9 Cal.App.4th 187, 194.)
Thus, “where the prosecution evidence points to a particular day or hour to the exclusion of any other time, an instruction limiting the jury to a consideration of the time of the offense in accordance with the testimony is proper. Requiring the jury to limit its consideration of the time of the offense to that shown by the evidence precludes them from speculating that it may have occurred at a time other than that shown by the evidence....” (People v. Wrigley, supra, 69 Cal.2d at p. 157.) Moreover, the note to CALCRIM No. 207 states, “This instruction should not be given: (1) when the evidence demonstrates that the offense was committed at a specific time and place and the defendant has presented a defense of alibi or lack of opportunity....” (Bench Notes to CALCRIM No. 207 (2008) p. 40.)
However, where the prosecution evidence is uncertain about the time of the offense and the alibi is partial, it is proper to instruct the jury to determine whether the offense occurred on or about the time alleged. (People v. Wrigley, supra, 69 Cal.2d at pp. 156-160.) In such cases, the “on or about” instruction does not “deflect the jury’s attention from a crucial temporal element for which the defendant had an alibi.” (People v. Richardson (2008) 43 Cal.4th 959, 1027.)
In the present case, we determine that the prosecution evidence did not demonstrate that the offense alleged in count 3 was committed on a particular day or days to the exclusion of any other time. The testimony of victim F. in the first trial was that the incident from which count 3 arose, where defendant squeezed her bottom more than once while scooting next to her on a bed, occurred sometime “[a]round Christmas.” F. also “definitely remembered” that “it was right around Christmas,” but did not recall whether incident occurred on Christmas Day or Christmas Eve. The other evidence presented by the prosecution during the first trial regarding the date of the count 3 offense included Ana’s testimony that defendant and Blanca visited Ana and her children on Christmas Eve in 2003 and Officer Simpson’s testimony that during his interview of F. she mentioned a “Christmas incident, molestation at Christmas of 2003 incident.”
Since the prosecution evidence demonstrated that defendant committed the count 3 offense sometime around Christmas 2003, defendant’s alibi for December 24 and 25 of 2003 constitutes a partial alibi. It was therefore proper for the trial court to give a version of CALCRIM No. 207 that instructed the jury to determine whether the offense occurred on or about the time alleged. (People v. Wrigley, supra, 69 Cal.2d at pp. 156-160.)
Because we find no merit in defendant’s claim of instructional error, we need not consider defendant’s second argument on appeal that the trial court erred in the second jury trial by admitting the prior conviction on count 3 under Evidence Code section 1108 for the purposes of showing that he had a propensity to commit such crimes and to impeach defendant’s credibility.
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J. MCADAMS, J.