Opinion
D072817
08-17-2018
THE PEOPLE, Plaintiff and Respondent, v. PAZ POORE VEGA, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JCF33320) APPEAL from a judgment of the Superior Court of Imperial County, William D. Lehman, Judge. Affirmed. Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Paz Poore Vega of one count of forcible oral copulation of a victim under 14 years of age. (Pen. Code, § 288a, subd. (c)(2)(B).) The trial court sentenced Vega to 12 years in state prison, to run consecutively to a 17-year prison term that Vega was serving in Arizona for sexual offenses committed there against the same victim.
On appeal, Vega contends the trial court abused its discretion in allowing the prosecutor to present evidence of prior uncharged crimes, a pretextual telephone conversation with the victim, M.D., and a photograph of then 10-year-old M.D. and her younger sisters and cousin, without undergoing the required balancing analysis under Evidence Code section 352. Vega argues the errors deprived him of a fair trial and violated his constitutional right to due process. We find no error and affirm.
Further unspecified statutory references are to the Evidence Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 1998, when M.D. was three years old, her mother and Vega began dating. They married two years later and had twin girls when M.D. was eight years old. The family lived in Yuma, Arizona. They were close to Vega's parents, who lived in Winterhaven, California, and often visited them.
When M.D. was in the sixth grade, her mother was working 24-hour shifts as a medic. Vega began sexually abusing M.D., telling her it was punishment for misdeeds such as not cleaning her room or not doing her homework. On the first occasion, Vega took M.D. to her bedroom in their home in Yuma, blindfolded her with a bandana, told her he was going to put soap in her mouth as punishment, and instructed her to open her mouth. He then put something hard into her mouth. M.D. suspected the object was his penis but did not know for certain. Vega told her to close her mouth around the object. He did not do anything else. After a short time, Vega left and went into the bathroom for a few minutes. When he returned, he questioned her briefly about the incident. This pattern of abuse happened frequently during the sixth grade. After the first incident, Vega had a camera on a tripod set up facing the bed in her room. M.D. felt that she was completely at fault for the abuse and did not disclose it.
One of the last incidents of sexual abuse occurred when Vega picked up M.D. because of a school disciplinary issue. Instead of going to their home in Yuma, Vega drove to his parents' home in Winterhaven, California. No one was there. He took her to a back bedroom where a camera was set up. Vega blindfolded her. The blindfold slipped and M.D. saw Vega's penis for the first time. M.D. turned her head away and covered her face with her hands and arms. Vega tried to physically force her to turn around. He stopped when M.D. screamed at him that he was not her real father. Vega went into the bathroom for a few minutes. When he returned he was offended and upset by M.D.'s statement.
In high school, M.D. told her boyfriend and another friend about the abuse in general terms but never reported it. Her mother never noticed anything unusual about M.D.'s relationship with Vega. When Vega and her mother divorced, M.D. chose to stay with Vega during the week to finish high school and spent weekends at her mother's home. On her 18th birthday, M.D. enlisted in the Army. During basic training, she started worrying about the safety of her twin sisters, who were close to the age she had been when Vega had starting sexually abusing her. M.D. told an Army colleague about the abuse. From there, her report went up the chain of command, resulting in an investigation by the Army Criminal Investigation Division (CID) and the Yuma Police Department (YPD) in May 2013. M.D. informed the CID the abuse had occurred in Arizona and California.
In August 2013, YPD Detective Rene Angulo assisted M.D. in making a pretextual telephone call to Vega. During the conversation, M.D. referred to multiple incidents of sexual abuse without identifying where they had occurred. Vega admitted he had put his penis in M.D.'s mouth. He told her that it was not her fault. Vega apologized and said he was ashamed of what he had done. He wished he were dead. When asked, he said he had thrown out the videotapes. Neither M.D. nor Vega identified the location where the abuse occurred during their telephone conversation.
The YPD executed a search warrant on Vega's home and found a camcorder, numerous videotapes, a sex kit, a case with a blindfold and lubricant, and flavored lubricants and lotions. None of the videotapes depicted M.D. In August 2013, Vega was arrested and charged with eight counts of sexual offenses against a minor, M.D., in Yuma County, Arizona.
In June 2014, the People of the State of California charged Vega with one count of forcible oral copulation of a victim under 14 years of age. In January 2015, in Yuma County Superior Court, Vega pleaded guilty to one count of molestation of a child and one count of attempted sexual conduct with a minor and was sentenced to a term of 17 years in Arizona state prison.
In pretrial motions, the People moved to admit evidence of the uncharged crimes Vega committed against M.D. in Yuma, Arizona, and to admit evidence of the pretextual telephone call M.D. made to Vega. The defense moved to exclude this evidence under section 352, arguing it was more prejudicial than probative. The trial court ruled that the evidence was admissible under sections 1108 and 1101, subdivision (b).
M.D., her mother and Detective Angulo testified, as described above. Vega testified on his own behalf. He admitted he sexually abused M.D. once in Yuma, Arizona, when she was in the sixth grade, but denied that any abuse had occurred in California. Vega said there was no excuse for his behavior. He was disgusted with himself. Afterwards, he tried to maintain a good relationship with M.D., but always felt guilty about his acts.
At the start of the cross-examination, the prosecutor, without objection, showed a photograph of 10-year-old M.D., her three-year-old twin sisters, and a young female cousin to Vega. Vega acknowledged the photograph accurately depicted M.D. at the time the abuse occurred. Vega admitted he had pleaded guilty to two sexual offenses in the Arizona case, but continued to insist there had only been one incident of sexual abuse, and that the single incident of sexual abuse had occurred in Yuma, Arizona.
After the close of evidence, the prosecutor moved to reopen the case to offer the photograph in evidence. The defense objected. The trial court overruled the objection.
DISCUSSION
I
Argument
Vega contends the trial court abused its discretion when it admitted evidence of uncharged crimes under sections 1101 and 1108 without undertaking the required analysis under section 352. He argues the admission of this evidence took an undue consumption of time and was cumulative, and likely confused, misled or distracted the jurors from the main inquiry, resulting in undue prejudice and violating his right to due process and a fair trial. Similarly, Vega maintains the admission in evidence of the pretextual telephone call between himself and M.D. should have been excluded under section 352 because it was cumulative and there was a likelihood the call misled the jury because there was no mention of any location where the sexual abuse occurred.
Vega also argues the trial court erred in admitting the photograph of M.D., her sisters, and cousin. He argues the photograph of the young girls was inflammatory, particularly in view of M.D.'s testimony she came forward out of concern that Vega would molest her younger sisters. Vega contends the admission of this photograph served only to evoke an emotional response from the jury, thus violating his right to due process and a fair trial.
Vega has forfeited this issue on appeal. In his reply brief, Vega acknowledges he did not object to the admission of the photograph at the time the prosecutor questioned him about it. (People v. Boyette (2002) 29 Cal.4th 381, 423424 [because defendant did not object at the time the photographs were used in questioning the witness, he failed to preserve the issue for appeal; his later objection was untimely]; People v. Nelson (2011) 51 Cal.4th 198, 223 [in accordance with § 353, we have consistently held that defendant's failure to make a timely and specific objection on the ground asserted on appeal makes that ground not cognizable].)
If the issue were not forfeited on appeal, we would conclude that the trial court did not err when it admitted the photograph of the girls in evidence. The photograph was relevant to show M.D.'s size, age, and vulnerability at the time she was abused, and to assist the jury in determining whether her testimony was credible. In view of its probative value, the possibility the photograph generated some sympathy for M.D. does not compel its exclusion as unduly prejudicial under section 352. (People v. Tully (2012) 54 Cal.4th 952, 1020.)
II
Relevant Law and Standard of Review
Character evidence, also described as evidence of propensity to engage in a type of conduct, is generally inadmissible to prove a person's conduct on a specified occasion. (§ 1101, subd. (a); People v. Villatoro (2012) 54 Cal.4th 1152, 1159 (Villatoro).) This general rule against admitting propensity evidence to prove conduct, however, "does not prohibit admission of specific acts of misconduct to establish a material fact like intent, common design or plan, or identity (§ 1101, subd. (b)), and does not affect the admissibility of evidence regarding the credibility of a witness (id., subd. (c))." (Villatoro, at p. 1159.)
The Legislature has also created a specific exception to the rule against admitting propensity evidence in cases involving sexual offenses (§ 1108, subd. (a)). (Villatoro, supra, 54 Cal.4th at p. 1159.) Section 1108, subdivision (a), states: "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's assessment under section 352 serves as a limitation on the admission of evidence under section 1108 and other provisions of the Evidence Code. (Villatoro, at p. 1163.) The ultimate object of a section 352 analysis is to ensure a fair trial. (People v. Harris (1998) 60 Cal.App.4th 727, 736.)
Under section 352, the court has the discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.) For example, exclusion of sexual propensity evidence may be warranted " '[e]ven where a defendant is charged with multiple sex offenses, they may be dissimilar enough, or so remote or unconnected to each other, that the trial court could apply the criteria of section 352 and determine that it is not proper for the jury to consider one or more of the charged offenses as evidence that the defendant likely committed any of the other charged offenses.' " (Villatoro, supra, 54 Cal.4th at p. 1163.)
We review a trial court's ruling on the admissibility or exclusion of evidence under sections 1101, 1108, and 352 for abuse of discretion. (People v. Davis (2009) 46 Cal.4th 539, 602; People v. Merriman (2014) 60 Cal.4th 1, 58.)
III
The Trial Court Did Not Abuse Its Discretion
We are not persuaded by Vega's argument that the trial court did not undertake the analysis required under section 352. The record shows that the People, in their motion in limine to admit in evidence defendant's prior acts of sexual misconduct against M.D. in Arizona, addressed the admissibility of that evidence under both sections 1108 and 352. In its discussion entitled " Evidence Code section 352 Balancing ," the People argued the uncharged acts were not unduly prejudicial to the defendant because if those acts were not described to the jury, the jury would be left with the inaccurate impression the abuse occurred only on one occasion. Instead, the evidence showed there was a similar pattern of abuse in Arizona and California, and such evidence would not be confusing to the jury. The admission of this evidence would not require the People to call any additional witnesses, and therefore would not result in undue consumption of time.
In its written filings, the defense argued the prejudicial effect of admitting evidence of Vega's prior conviction and related pretextual telephone call would be great and there was a strong possibility Vega's prior conviction in Arizona and admissions during the pretextual telephone call would lead the jury to believe a guilty verdict was necessary. In addition, because there was no mention of the location where the sexual misconduct occurred during the telephone call, the jury might be misled by Vega's admission of sexual misconduct.
The People responded that the defendant's admissions were highly probative and relevant to whether he committed the charged crime. There was no danger of confusing or misleading the jury because Vega admitted he placed his penis in M.D.'s mouth. In addition, there would not be an undue consumption of time because the pretextual telephone call was only 45 minutes.
In reviewing the motions in limine, the trial court said it had read the parties' motions. It said evidence of the uncharged acts was important to provide context to the one incident alleged to have occurred in California. It supported the victim's credibility and explained why she did not resist him or report the incident.
The defense then argued the central issue in the case was whether the prosecution could prove beyond a reasonable doubt that "this one incident" took place in California, and neither party discussed the location of the incidents during the telephone call. The defense said the telephone call was unduly prejudicial under section 352 because of the possibility that all the acts took place in Arizona. In response to an inquiry by the trial court, the defense conceded there was a possibility that one of those acts could have occurred in California, but argued the prosecution was bootstrapping this case on the Arizona case, and there was a risk the jury would conclude that if Vega had sexually abused the victim in Arizona, he must have done so in California.
The trial court ruled that the evidence of the defendant's uncharged sexual offenses against M.D. was admissible under section 1108, for a variety of reasons, and section 1101, subdivision (b), to show defendant's plan, motive, and modus operandi. The pretextual telephone call did not rule out the possibility that one of those acts of sexual abuse occurred in California. The trial court said the evidence of defendant's prior conduct, which had been occurring for some time, was relevant to explain why the victim did not physically resist him or disclose the abuse. The jury would still have to determine how M.D. was able to distinguish between the incidents, which all involved the same pattern, for the prosecution to show beyond a reasonable doubt that one of the incidents occurred in California.
A trial court is not required to expressly state it was weighing prejudice against probative value or state that it had done so. (People v. Lewis (2009) 46 Cal.4th 1255, 1285; People v. Taylor (2001) 26 Cal.4th 1155, 1169.) Here, the trial court reviewed the parties' motions in limine, which set forth relevant considerations under section 352, responded to defense counsel's explicit argument that the evidence was not relevant under section 352, and performed its obligation to determine whether the probative value of that evidence was substantially outweighed by the danger of undue prejudice to the defendant. (Lewis, at p. 1285.) The trial court found that evidence of other sexual acts was necessary to present a full account of the nature and pattern of the abuse. The trial court then determined the admission of such would not unduly prejudice the defendant or confuse the jury because the prosecutor had to prove that one of those incidents occurred in California. The record shows that the trial court first considered the probative value of the evidence and then assessed whether it was unduly prejudicial. The record belies appellant's argument that the trial court failed to consider whether evidence of the prior uncharged acts and the pretextual telephone call was more prejudicial than probative under section 352.
We further conclude the trial court did not abuse its discretion in determining the probative value of the evidence of other acts of sexual abuse and the pretextual telephone call outweighed any prejudicial effect. "Evidence is prejudicial within the meaning of Evidence Code section 352 if it encourages the jury to prejudge defendant's case based upon extraneous or irrelevant considerations." (People v. Rogers (2006) 39 Cal.4th 826, 863.) The record shows that the jury was properly instructed on the use of propensity evidence. The only issue before the jury was whether one of Vega's acts of sexual abuse against M.D. had occurred in California. This is not a case in which the defendant's uncharged acts of sexual abuse against the same victim and his admissions about that conduct were "extraneous or irrelevant" to the question whether one of those incidents had occurred in California. (Ibid.) The charged conduct in California was a part of the same pattern of abuse that began in Arizona. Thus, the defendant's prior conduct was not so "dissimilar" or "remote or unconnected" to the charged offense that it would have been improper under section 352 for the jury to consider the uncharged conduct as evidence the defendant likely committed the charged offense. (Villatoro, supra, 54 Cal.4th at p. 1163.)
The trial court instructed the jury that it could consider evidence of uncharged crimes only if the People proved by a preponderance of the evidence that Vega had committed the uncharged offenses. The trial court directed the jury to completely disregard evidence of uncharged crimes if it determined that the People did not meet this burden. If the jury decided the defendant committed the uncharged offenses, it then could, but was not required to, conclude that the defendant was disposed or inclined to commit sexual offenses, including committing forcible oral copulation of a person under the age of 14 years. The trial court advised the jury that if it concluded the defendant had committed the uncharged offenses, it was only one factor to consider in determining whether the People proved the instant charge beyond a reasonable doubt. (See CALCRIM No. 1191A [Evidence of Uncharged Sex Offense].) --------
DISPOSTION
The judgment is affirmed.
HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. IRION, J.