Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. NJ23515, Donna Quigley Groman, Judge.
Law Offices of Esther R. Sorkin and Esther R. Sorkin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
The juvenile court sustained a petition alleging that appellant LaDaniel A. engaged in forcible rape. We affirm.
MANELLA, J.
RELEVANT PROCEDURAL BACKGROUND
On March 25, 2009, a petition was filed under Welfare and Institutions Code section 602 charging appellant, a minor born in 1993, with forcible rape (Pen. Code, § 261, subd. (a)(2)). At the adjudication hearing, the juvenile court sustained the petition. On June 4, 2009, the juvenile court found that the offense was a felony, placed appellant in a special treatment program as a ward of the court, and ordered that appellant’s physical confinement would not exceed eight years and eight months.
FACTS
A. Prosecution Evidence
The prosecution’s key witness was Elizabeth A., who testified as follows: In March 2009, she attended a college preparatory school, and shared classes with appellant, who was also a student. On March 16, 2009, she sat near appellant in her sixth period history class, the final class of the day. Appellant told her that he “wanted to fuck [her]” and asked when she would let him. In response, she laughed and called him “dumb.” She did not take him seriously because during the previous semester he once made similar remarks and touched her leg.
After the class ended, Elizabeth A. walked toward the school’s exit to go home with her friends, Stephanie A. and Cinthia E. Appellant grabbed her by the arm and began pulling her around the school’s hallways and patio area. Although she was not fearful of him, she tried to get free, but was unable to do so. Juana R., one of Elizabeth’s classmates, saw the pair and approached them. Appellant grabbed Juana’s arm and briefly tugged both Elizabeth and Juana around the school. They laughed as he moved them. After Juana left them, Elizabeth asked appellant to let her go, but he refused to do so.
When Juana departed, appellant told Elizabeth that he “wasn’t playing” and forced her into a boys’ bathroom. She was scared. Inside the bathroom, he removed her purse, ripping its straps. Over Elizabeth’s repeated protests and resistance, he took her into a stall, pinned her against the wall, and pulled her pants down. He turned her around, bent her over, and penetrated her vagina with what felt like his penis, moving back and forth for approximately 30 seconds before pulling out. He penetrated her a second time, for roughly the same duration, before leaving the stall.
Elizabeth remained in the stall, momentarily “frozen,” until appellant ordered her to “get out.” In pain, she walked from the bathroom to the school’s patio area, where she saw Stephanie and Cinthia. She said nothing to them about the incident, because she felt “nasty” and “embarrassed.” She told no one about it for a week, when she told her mother, who took her to the police station.
Erika R. testified that she was a student in Elizabeth’s final period class. On the day of the incident, she overheard appellant make several remarks to Elizabeth during the class, including, “Sit down or else I’ll fuck you harder,” “I’m stronger than you,” and “I’m serious.” Elizabeth responded, “You’re just joking around.”
Juana R. testified that on the day in question, she saw appellant walking in the school hallway with his arm around Elizabeth. They seemed to be “joking around.” For a period of time, she joined them as they moved through the hallways and patio.
Stephanie A. testified that after school on the day in question, she saw appellant walking around the school with his arms around Elizabeth and Juana. After they disappeared from sight, Stephanie looked for them in the school, but could not find them. She eventually discovered Elizabeth alone near the main office. Elizabeth was unusually quiet and “weird” as they walked home, but when Stephanie asked “what was going on,” Elizabeth said that “nothing was wrong.” Some days later, Elizabeth told her that appellant had raped her.
Cinthia E. testified that she saw appellant with Elizabeth and Juana, and later observed Elizabeth leave a boys’ bathroom. Appellant was nearby. Elizabeth was “acting not herself” and appeared “sad” and “depressed,” but when Cinthia inquired, Elizabeth insisted that “nothing was wrong.”
On March 23, 2009, Los Angeles Police Department Detective Donna Wheeler interviewed appellant. According to Wheeler, appellant recalled “playing around” and joking with Elizabeth, and hiding with her for about 10 minutes in a bathroom, where he had pulled her. Appellant said nothing further because his mother stopped the interview.
Aside from the testimony regarding the events on March 16, 2009, the prosecution presented evidence concerning another incident two months earlier. Perla C. testified as follows: In January 2009, she was in a class with appellant. Both were clothed. As Perla stood and leaned forward to talk to a friend, appellant passed by her as if dancing and “put his penis on [her] butt” for a few seconds. The unwanted contact angered Perla, who tackled appellant. After school authorities tried to suspend her for fighting with appellant, she reported his conduct to them.
B. Defense Evidence
Kevin Moran testified that he attended the same college preparatory school as appellant. On March 16, 2009, he entered a boys’ bathroom after school and saw appellant’s head in a stall for the disabled. When Kevin asked appellant what he was doing, appellant replied that he was with a girl and “kind of busy.” He believed that he heard appellant say, “Stop. Calm down.” During the two or three minutes Kevin was in the bathroom, he heard only some whispering. Kevin saw no one other than appellant in the stall, and could not tell whether a girl was whispering. Appellant remained in the stall while Kevin was in the bathroom. Sometime later, appellant told Kevin that he was with a girl in the bathroom, but he did not identify her.
Valerie Felix testified that she taught the sixth period history class attended by Elizabeth and appellant. According to Felix, the two students were academically competitive but friendly to each other. During the semester she had spoken to them because they had been touching each other in class.
DISCUSSION
Appellant contends that the juvenile court erred in admitting Perla C.’s testimony under Evidence Code section 1108. For the reasons explained below, we reject the contention.
All further statutory citations are to the Evidence Code unless otherwise indicated.
Subdivision (a) of section 1108 provides that “[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.” Subdivision (d)(1) of section 1108 defines “[s]exual offense” to include “[c]ontact, without consent, between any part of the defendant’s body... and the genitals or anus of another person,” as well as “[c]ontact, without consent, between the genitals... of the defendant and any part of another person’s body.” (§ 1108, subds. (d)(1)(C), (d)(1)(D).” Evidence of an uncharged sexual offense is admissible under section 1108. (People v. Reliford (2003) 29 Cal.4th 1007, 1009.)
Section 1101 states that except as provided in section 1108 and other sections, “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).)
As our Supreme Court has explained, “the Legislature’s principal justification for adopting section 1108 was a practical one: By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations. Section 1108 provides the trier of fact in a sex offense case the opportunity to learn of the defendant’s possible disposition to commit sex crimes. [Citation.]” (People v. Falsetta (1999) 21 Cal.4th 903, 915.)
Here, Perla testified that appellant, without her consent, put his penis on her buttocks. In determining whether to admit this testimony under sections 1108 and 352, the juvenile court was obliged to consider “its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the [trier of fact]..., its similarity to the charged offense, its likely prejudicial impact on the [trier of fact], the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission.... [Citations.]” (People v. Falsetta, supra, 21 Cal.4th at p. 917.) The juvenile court’s ruling is reviewed for an abuse of discretion. (People v. Wesson (2006) 138 Cal.App.4th 959, 969.)
Appellant contends that the juvenile court erred in admitting Perla’s testimony because the incident that she described was unlike the offense charged against appellant. Generally, the existence of dissimilarities between uncharged and charged sexual offenses may compel the exclusion of evidence regarding an uncharged offense when “any inference of predisposition to commit the charged offense would be wholly speculative,” that is, when “the uncharged offense has no tendency in reason to show that the defendant actually has the propensity....” (People v. Earle (2009) 172 Cal.App.4th 372, 397 (Earle) italics deleted.) Here, the juvenile court expressly determined that the relevance of Perla’s testimony, though not great, was sufficient for admission of the testimony under section 1108.
We agree with the trial court. In People v. Mullens (2004) 119 Cal.App.4th 648, 652-653, the defendant was charged with committing lewd acts upon his stepdaughter. In support of these allegations, the prosecution presented evidence that the defendant had fondled his stepdaughter’s vaginal area and breasts, kissed her breasts, and made her masturbate him. (Id. at pp. 654-655, 660.) In addition, the prosecution submitted evidence of an uncharged act, namely, that the defendant had once touched the thigh of another child. (Id. at p. 655.) Rejecting the defendant’s contention that the uncharged conduct’s lack of similarity with the charged acts required its exclusion under sections 1108 and 352, the appellate court observed: “Both alleged incidents involved allegedly improper touchings of young girls. Any dissimilarities in the alleged incidents went to the weight, not the admissibility, of the evidence.” (People v. Mullens, at p. 660.)
Here, the charged and uncharged incidents both involved allegations that appellant applied his penis to nonconsenting female classmates in school. In admitting Perla’s testimony, the juvenile court recognized the difference in the gravity of the incidents and adjusted the weight it ascribed to Perla’s testimony accordingly. We see no error.
Appellant’s reliance on Earle, People v. Harris (1998) 60 Cal.App.4th 727 (Harris), and Johnson v. Elk Lake School Dist. (3d Cir. 2002) 283 F.3d 138 (Johnson) is misplaced. In Earle, the defendant was charged with indecent exposure and sexual assault. (Earle, supra, 172 Cal.App.4th at p. 378.) Regarding the indecent exposure, it was alleged that the defendant, while seated inside his parked car, invited a female pedestrian to stand outside the car and watch him masturbate; regarding the sexual assault, it was alleged that the defendant attacked a second female as she entered her car in a parking lot. (Id. at pp. 380-381.) Although the charges were based on unrelated incidents involving different victims and locations, the trial court denied the defendant’s motion for separate trials of the charges. (Id. at pp. 378-384.) In reversing the denial, the appellate court reasoned that the indecent exposure was too dissimilar from the sexual assault to render evidence of the former admissible under section 1108 to prove the latter. (Id. at pp. 396-400.) Here, unlike Earle, the pertinent incidents resemble each other, as both occurred in appellant’s school and involved unwanted sexual contact with classmates.
In Harris, the defendant, a mental health nurse, was charged with sexual misconduct with female patients who were vulnerable due to their mental condition. (Harris, supra, 60 Cal.App.4th at pp. 730-731.) The trial court admitted evidence under section 1101 that over 20 years earlier the defendant had brutally raped a woman who had never been one of his patients. (Harris, at pp. 733 736, 739.) The appellate court concluded that admitting the evidence was error because the rape was inflammatory, remote in time, and dissimilar from the misconduct with which the defendant had been charged. (Id. at p. 741.) Unlike the evidence in Harris, Perla’s testimony concerned an event close in time to the charged offense and probative of a propensity to make unwanted sexual contact with female classmates.
Finally, in Johnson, a former high school student sued a school district, alleging that her guidance counselor had sexually harassed her through unwanted physical contact. (Johnson., supra, 283 F.3d at p. 143.) During the trial by jury, the plaintiff offered evidence that the counselor had inappropriately touched another student. (Id. at p. 149.) The trial court determined that the evidence was inadmissible under rule 415 of the Federal Rules of Evidence, which closely resembles section 1108. (Johnson, at p. 150.) In affirming, the Third Circuit concluded that the trial court had not abused its discretion because the excluded evidence was ambivalent regarding whether the touching had been intentional: “Lacking more specific evidence of intentionality, the [trial court] apparently concluded that the probative value of the evidence was slight and was outweighed by... concerns of prejudice, undue delay, waste of time, etc.” (Id. at p. 157.) Here, in contrast, Perla’s testimony was not ambivalent about appellant’s intent, and its probative value was not outweighed by other concerns. In sum, the trial court did not err in admitting the testimony.
As explained in People v. Soto (1998) 64 Cal.App.4th 966, 986-987, section 1108 is modeled on rules 413 through 415 of the Federal Rules of Evidence.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J. WILLHITE, J.