Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 06WF1449 James Patrick Marion, Judge.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, ACTING P. J.
A jury convicted defendant John L. Adamoli of committing a lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a); all statutory references are to the Penal Code unless otherwise noted) and misdemeanor resisting a peace officer (§ 148, subd. (a)(1)). When arrested, Adamoli spontaneously remarked to the officers, “‘I wouldn’t hurt kids. I wouldn’t touch kids.’ And... ‘I give kids candy.’” Adamoli contends the trial court prejudicially erred in admitting the entire statement, rather than striking the sentence referring to candy, which was more prejudicial than probative. (Evid. Code, § 352.) For the reasons expressed below, we affirm the judgment.
I
Factual and Procedural Background
On the afternoon of May 28, 2006, Richard B., his wife, Rose, and five or six friends, including Adamoli, congregated at a Lake Forest restaurant to listen to live music and drink beer. Around 5:00 p.m., the group left for the B.’s Huntington Beach apartment, where the group continued to drink on the patio.
Adamoli had been to the B.’s home several times. He knew Richard’s children, including 10-year-old Jane Doe. Doe suffers from autism, a neurological condition characterized by impaired social and verbal skills. She typically answered questions with incomplete, one or two word responses, and suffered from a condition known as echolalia, the compulsion to repeat questions while answering them. She also laughed inappropriately, especially when stressed, nervous or uncomfortable. In addition, she engaged in “stimming” by rubbing against various items, a behavior common in autism involving repetitive stimulation.
Around 9:00 p.m., Richard went inside to use the bathroom. As he passed the living room, he heard Doe giggle and turned to see Adamoli pinning Doe against the corner of the sectional sofa. Her legs were raised and spread apart, and Adamoli had his arms under them while thrusting his hips forward and back. Doe wore a shirt, but nothing from the waist down. Adamoli’s pants were bunched around his ankles, and Richard could see his buttocks.
Richard grabbed Adamoli by the shirt, threw him down, and ordered him to leave. Adamoli pulled up his pants to cover his exposed penis and walked toward the patio. Richard may have told Jane to pull her pants up. He then pursued Adamoli outside, where he began hitting Adamoli in the face. When the others asked what was happening, Richard graphically exclaimed what he had seen. Adamoli jumped over a fence and ran off.
One of the guests, Cheri M., heard Richard’s angry accusations and saw him strike Adamoli. Later that evening, she telephoned Adamoli to persuade him to return. Adamoli declined stating, “‘Well, what is done is done. There’s nothing I can do to change it.’”
Sharon Z., 10 years old at the time of the incident, lived near the B.’s and was a friend of one of their other daughters. During the party, she went inside the B.’s home on two occasions. She saw Adamoli lying near Doe and whispering in her ear. She also saw Adamoli on top of Doe on the sofa, with Doe’s legs wrapped around him.
When Rose learned what happened, she ran inside the apartment and found Doe nervously laughing. Rose later told a police officer Doe was fully clothed. Rose’s adult daughter, Veronica S., asked Doe what happened. Doe replied, “‘Hurt. Johnny [Adamoli’s nickname] hurt, ’” or “‘Johnny hurt me, ’” and touched or pointed to her vaginal area. The area appeared redder than normal.
Huntington Beach police officers found Adamoli at a nearby restaurant. Adamoli was using his cell phone and told the person on the other end “‘the police are here. I don’t know what they want[.]’” He was visibly intoxicated, and slurred his words when speaking with the officers. After identifying himself, he asked the officers what they wanted, and told them to leave him alone. He refused orders to put down the cell phone. When he finally hung up, he refused to stand or put his hands behind his back, and clenched his fists. The officers took him into custody after a brief scuffle, and drove Adamoli to the hospital emergency room without telling him why they had arrested him. At the emergency room, Adamoli blurted out, “‘I wouldn’t hurt kids. I wouldn’t touch kids.’ And... ‘I give kids candy.’”
The parties stipulated Adamoli’s blood-alcohol content (BAC) less than three hours after his arrest was.21 percent, reflecting a high level of intoxication. Investigators swabbed the genital areas of both Doe and Adamoli, but found no semen, saliva or foreign DNA.
Following a trial in January and February 2010, a jury convicted Adamoli as noted above. In March 2010, the trial court sentenced Adamoli to the aggravated prison term of eight years, and a concurrent term for the misdemeanor.
II
Discussion
The Trial Court Did Not Prejudicially Err By Admitting Adamoli’s Post-Arrest Statement
Before trial, the prosecutor moved to admit statements Adamoli made to police officers after his arrest. Adamoli initially claimed to the arresting officers he did not know why they wanted to talk to him. Later at the hospital emergency room, before the officers told Adamoli why they had arrested him, he blurted out, “‘I wouldn’t hurt kids. I wouldn’t touch kids.’ And... I give kids candy.’” The prosecutor argued the statements showed Adamoli knew why he was “being arrested. He knows what’s happened after he had been claiming he had no knowledge why the police were contacting him.”
Adamoli’s lawyer did not object to the admission of Adamoli’s statement that denied he would harm or touch children. But he urged the court to exclude Adamoli’s statement he would buy candy for children, arguing it was unduly prejudicial under Evidence Code section 352: “It’s clearly inflammatory. It invokes a certain image... in the jurors mind of... you’re a creepy guy driving a windowless van handing out lollipops to the neighborhood kids.” The trial court denied the request and admitted Adamoli’s entire statement.
Evidence Code 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.” “Prejudice” as used in section 352 “applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.” (People v. Karis (1988) 46 Cal.3d 612, 638.) The prejudice that section 352 is designed to avoid is “‘prejudging’ a person or cause on the basis of extraneous factors. [Citation.]” (People v. Farmer (1989) 47 Cal.3d 888, 912.) “‘[E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.’ [Citation.]” (People v. Doolin (2009) 45 Cal.4th 390, 439.) We review the trial court’s evidentiary ruling for abuse of discretion. (Id. at p. 437.)
The trial court accepted the prosecutor’s argument that Adamoli’s admission he would not harm or touch children, given before he knew the basis for his arrest, demonstrated guilty knowledge and undermined his earlier claim at the restaurant that he did not know why the officers wanted to talk to him. As the prosecutor observed, this demonstrated “he ha[d] the presence of mind to lie” and he knew “exactly what’s going on.” Contrary to the Attorney General’s position, the prosecutor did not offer Adamoli’s statements to prove motive or the sexual intent required for the charged crime. (See § 288, subd. (a) [“intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child”].) The trial court therefore did not admit the statements to show Adamoli was a person who would take advantage and sexually abuse a 10-year-old autistic girl.
Adamoli’s statement that he gave candy to children had only slight bearing on his knowledge of the incident, but potentially posed a risk jurors would consider Adamoli’s comment as a character trait fitting the mold of a child molester. As Adamoli’s trial counsel observed, the statement evoked images of a child molester offering candy to lure children into his grasp, a caricature parents paint to warn their children not to talk to strangers. Because Adamoli’s first two statements supported the prosecutor’s stated purpose in demonstrating Adamoli’s guilty knowledge, there was little reason to run the risk of prejudice that might attach to the statement about candy.
But we need not decide whether admission was an abuse of discretion because any error was harmless. The prosecutor’s argument focused on a proper use of the evidence. The risk that Adamoli’s statement about candy would emotionally inflame the jurors paled in comparison to the other overwhelming evidence in the case. Adamoli was a family friend, and none of the witnesses had any reason to fabricate testimony against him. Witnesses generally testified consistently, and corroborated each other. Both Richard and Sharon Z. observed Adamoli committing a lewd act with Doe. Doe herself indicated Adamoli had hurt her in the genital area, and Adamoli offered no explanation or defense to Richard or the others before he fled the scene. His statements to Cheri M., “‘what is done is done’” and there was “‘nothing I can do to change it[, ]’” reflected consciousness of guilt. Adamoli was visibly intoxicated, but his conduct and statements after the incident demonstrate he knew what had happened. Thus, admitting the statement about candy was no more inflammatory, and in fact less so, than the admissible evidence that pointed toward Adamoli’s guilt. (See Doolin, supra, 45 Cal.4th at p. 439.) We therefore conclude there is no reasonable probability of a different result had the statement been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.)
III
Disposition
The judgment is affirmed.
WE CONCUR: FYBEL, J., IKOLA, J.