Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCS191187, William McAdam, Judge.
O'ROURKE, J.
A jury convicted Michael Nathaniel Allen of committing a lewd act upon a child under the age of 14 (Penal Code § 288(a); counts 1 and 5). As to both counts the jury found true an enhancement that he committed a sex offense against more than one victim (§ 667.61, subds. (b),(c), and (e).) As to count 1, the jury also found true an enhancement that Allen had substantial sexual conduct with the victim and he was a stranger to the victim at the time of the crime. (§ 1203.066, subds. (a)(8) and (a)(3).) The jury also found him guilty of battery, a lesser included offense of committing a lewd act upon a child, as alleged in counts 2 and 7. The jury found him not guilty of other violations of section 288a, as alleged in counts 4, 6, 9 and 10, and a mistrial was declared on count 8 because the jury was unable to reach a verdict regarding the charged lesser included offense of battery. In bifurcated proceedings, the trial court found true that he had one prior strike conviction. (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d).)
All further statutory references are to the Penal Code unless otherwise stated.
The court sentenced him to 30 years to life in prison as follows: 15 years each on counts 1 and 5, doubled because of the"Three Strikes" law, the terms to run concurrently. Allen contends the trial court erred in permitting testimony regarding his uncharged prior acts; and, the battery convictions in counts 2 and 7 were not supported by sufficient evidence. We affirm.
FACTUAL BACKGROUND
Alexis P. testified that when she was eleven years old, she and a friend, Britney, were walking to a teen center near their apartment complex. Allen, who she did not know, walked past them, turned back, and asked them how tall they were. He said something about how tall his son was, and asked Alexis and Britney to stand back to back for him to measure them. Britney started pushing back into Alexis, who became scared. Both girls sat down for about five seconds, and Allen asked to measure them again. He put them back to back again. Alexis was slouching, and he told her to stand straight and touched both her shoulders with his two hands, which he slid down both her outer arms to her wrists. Allen touched Alexis on both hips when she was slouching again, and she felt uncomfortable. He told the girls he lived in Marbrisas, the same apartment complex where they lived. Alexis' friend and cousin arrived, and Allen walked away immediately.
Nathalie A. testified that in the past she had gone to Allen's house to return something to his sons, who were her friends. Allen invited her in, told one of his sons to get a foot step, and took Nathalie to his bedroom. He told her to get on the foot step, started measuring her height with his hand, and touched the top of her head.
In January 2005, when Nathalie was ten years old and lived in Marbrisas, she was playing ball with Sarah G. when she saw Allen. Nathalie asked him if he was her friends' father. Allen made a face indicating he did not know Nathalie, denied he knew her friends, and said he had a daughter. Allen left, returned, asked the girls which of them was taller, and asked to measure them. He told them to stand back to back. He touched Nathalie's shoulder and Sarah's head, and barely touched Nathalie's head. Allen left, and Sarah was crying. Nathalie was scared that Allen might return.
Sarah G. testified regarding the January, 2005 incident that she was ten years old at the time. She was playing ball with Nathalie when Allen, who she did not know, asked to measure them. While the two girls were back to back, he knelt down in front of Sarah and slid his hand across their heads. Sarah scooted back so he would not touch her, and he leaned forward. The area of his body below the belt and above the knee touched the front of her thigh. He said Nathalie was a little taller, and started to leave, but returned and again asked who was taller. The girls refused to be measured again.
Desiree R. testified she was thirteen years old on February 15, 2005 and was watching a kickboxing class at the YMCA in Chula Vista. Allen, who she did not know, asked her why she was not in the class. She answered him, and he went outside. He returned after a couple of seconds and asked her to come outside to identify for him an ongoing class. Desiree complied, and while they were outside, he asked her how tall she was. She told him, and he asked if she was sure because he was just three inches shorter, and she should reach to his chin. As Desiree was returning inside, he asked to measure her. His chest touched her chest, and she backed away. He moved closer to her, measured her and touched her in the area of her vagina. Allen's conduct made her "very uncomfortable" and immediately afterwards she felt like "time froze" and that she "couldn't move."
With respect to Allen's prior acts, N. R. testified that in 2000, when she was approximately 8 years old, she and her sister, Felisha W., were playing cops and robbers in their yard in Bakersfield, California. Allen, who she did not know, walked up to them and asked if he could play too. They said no, but he pulled Felisha's arm, saying he was going to be Felisha's partner. N. ran and hid, but later went back to get Felisha. She saw Allen kneeling and Felisha sucking on his neck. N. grabbed Felisha. Allen told them not to tell their mother, and shoved money in their pockets. Allen touched N.'s buttocks. Felisha testified that she was approximately 7 years old at the time of the incident. Allen, who she did not know, pulled her aside, touched her bottom, and told her to smell his neck and suck it. She complied because she was scared. She pulled back, and Allen shoved money in her pocket and told her not to tell her mother.
Following the testimony of N. and Felisha, the trial court read to the jury the following stipulation: "[Allen] was charged with two counts for the incidents that were testified to by Felisha and N., and went to trial in Kern County. [¶] The jury found [Allen] not guilty on one count, and was unable to reach a decision on the other count. The district attorney dismissed that count."
DISCUSSION
I.
Allen concedes his prior uncharged lewd acts with N. and Felisha "falls within the scope of [Evidence Code,] section 1108," but contends that under Evidence Code, section 352, the trial court abused its discretion in admitting testimony regarding those acts because the testimony was inflammatory, remote, tended to cause confusion, consumed time, and was not probative. We conclude the court did not err in admitting the challenged testimony.
Over Allen's objection, the trial court admitted evidence regarding his prior uncharged acts with N.R. and Felisha W. The trial court stated, "I have spent hours in analysis, review of cases, review of the facts in this case. . . . [¶] And clearly where [Evidence Code, section 352] provides that I might . . . in my discretion exclude evidence if its probative value is substantially outweighed by the probability its admission will A, necessitate undue consumption of time; or B, create substantial danger of undue prejudice or confusing the issues or misleading the jury, I have certainly conducted that weighing process numerous times.
"Further, I have more than once during the time of hearing the testimony of the witnesses, my review of the pleadings, and of course the review of the cases, considered — I have constantly considered during the testimony the four prongs . . . . Inflammatory nature of the uncharged conduct; the possibility of confusion of issues; remoteness in time of the uncharged offenses; the amount of time involved in introducing [of] the evidence of uncharged offenses. [¶] . . . [¶]
"Concerning the victims N.R. and Felisha W., although there has been some argument made, and the court is now clear that they are not identical offenses, there certainly are a number of similarities that would make it appropriate to permit the testimony of the victims N.R. and Felisha W.
Evidence Code, section 1108 subdivision (a), provides that if a defendant is accused of a sexual offense in a criminal action, "evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code], Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code], Section 352." The California Supreme Court explained that " 'the Legislature enacted [Evidence Code], section 1108 to expand the admissibility of disposition or propensity evidence in sex offense cases.' . . . '[A]vailable legislative history indicates [Evidence Code], section 1108 was intended in sex offense cases to relax the evidentiary restraints [Evidence Code], section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant's other sex offenses in evaluating the victim's and the defendant's credibility. In this regard, [Evidence Code], section 1108 implicitly abrogates prior decisions of this court indicating that "propensity" evidence is per se unduly prejudicial to the defense.' " (People v. Abilez (2007) 41 Cal.4th 472, 502, quoting People v. Falsetta (1999) 21 Cal.4th 903, 911.)
" 'Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.' " (People v. Abilez, supra, 41 Cal.4th at p. 502, italics omitted.) Although Abilez identifies several considerations, Evidence Code, section 352's "weighing process . . . depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. [Citations.] We will not overturn or disturb a trial court's exercise of discretion under [Evidence Code], section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314; see also People v. Mullens (2004) 119 Cal.App.4th 648, 658.) Nothing requires a trial court to consider or apply each of a list of particular factors; we need not go beyond the settled appellate standards for assessing a trial court's decision to admit evidence under Evidence Code, section 352. (People v. Jennings, at pp. 1314-1315.)
Under these standards, and viewing the evidence in the light most favorable to the trial court's ruling (see People v. Carter (2005) 36 Cal.4th 1114, 1148), we cannot conclude the trial court's decision to admit N. and Felisha's testimony as to Allen's prior acts on them was arbitrary, capricious, manifestly absurd, or exceeded the bounds of reason. (People v. Mullens, supra, 119 Cal.App.4th at p. 658.) We disagree the facts of Allen's actions against N. and Felisha were so inflammatory or prejudicial as to preclude their admission in this case on the issue of his propensity to commit such acts. None of the prior acts involved extreme violence or severe injuries as did the defendant's prior conduct in People v. Harris (1998) 60 Cal.App.4th 727, on which Allen relies.
In Harris, the trial court was held to have prejudicially abused its discretion in admitting an incomplete and distorted version of the defendant's prior act involving brutal sexual mutilation in a case in which the defendant had kissed, fondled and sexually preyed upon emotionally and physically vulnerable women crimes held to be of a "significantly different nature and quality." (Harris, at p. 738.) Here, Allen's acts toward N. and Felisha were not of a significantly different nature and quality than the conduct toward the other victims; both his present and prior acts involved improper touching of girls to whom he was a stranger. The acts mainly occurred when the girls were approximately the same age (between 7 and 11), and in public areas. (Accord, People v. Mullens, supra, 119 Cal.App.4th at p. 660 [holding that under Evidence Code, section 1108, dissimilarities in alleged incidents goes to weight, not admissibility, of evidence].) Allen's prior acts with N. and Felisha involved grabbing their buttocks and requiring Felisha to suck his neck; these acts were slightly more egregious than the present offenses, except for his acts against Desiree. But the prior acts were not unduly inflammatory or so extreme as to warrant their exclusion. Evidence of prior sex offenses necessarily involves unpleasant facts of sexual misconduct.
We further reject Allen's assertion that the past incidents were too remote and consumed an undue amount of time at trial. The prior incidents occurred in 2000, while the charged crimes occurred in 2004 and 2005. There are no specific time limits establishing when a prior offense is so remote as to be inadmissible (People v. Pierce (2002) 104 Cal.App.4th 893, 900; People v. Branch (2001) 91 Cal.App.4th 274, 284 [evidence of 30-year-old sex offense properly admitted]) and we hold the similarities described above balance out any remoteness. (Accord, Pierce, at p. 900.) We discern nothing about the time consumed by N. and Felisha's testimony or the related jury instructions that warrants exclusion under Evidence Code, section 352. The testimonies of N. and Felisha involved only 18 pages of transcript. (Accord Pierce, at p. 900 [concluding that the 17 pages of transcript devoted to the prior offense was "little time"].) In sum, the trial court did not abuse its discretion in admitting the prior sex act evidence to prove Allen's propensity to commit the charged offenses under Evidence Code, sections 352 and 1108.
II.
Allen contends insufficient evidence supported the battery convictions. He acknowledges he "merely touched the girls slightly, in innocuous locations (the arms and shoulder)," but he relies on CALCRIM No. 960 and CALJIC No. 16.141 for the contention he did not touch the victims in anger, insolence or rudeness.
The jury was instructed regarding simple battery in the language of CALCRIM No. 960 as follows: "To prove that the defendant is guilty of this crime, the People must prove that: the defendant willfully touched [the victims] in a harmful or offensive manner. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [¶] The slightest touching can be enough to commit a battery if it is done in a rude or angry way. Making contact with another person, including through his or her clothing is enough. The touching does not have to cause pain or injury of any kind."
CALJIC No. 16.141 states, "[T]he words 'force' and 'violence' are synonymous and mean any [unlawful] application of physical force against the person of another, even though it causes no pain or bodily harm or leaves no mark and even though only the feelings of such person are injured by the act. The slightest [unlawful] touching, if done in an insolent, rude, or an angry manner, is sufficient. [¶] It is not necessary that the touching be done in actual anger or with actual malice; it is sufficient if it was unwarranted and unjustifiable. The touching essential to a battery may be a touching of the person, of the person's clothing, or of something attached to or closely connected with the person." (Italics added.)
"[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66.) We must " ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Rayford (1994) 9 Cal.4th 1, 23.) "[I]t is not within our province to reweigh the evidence or redetermine issues of credibility." (People v. Martinez (2003) 113 Cal.App.4th 400, 412.) "Reversal . . . is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)
"Section 242 defines battery as 'any willful and unlawful use of force or violence upon the person of another.' Any harmful or offensive touching satisfies the element of unlawful use of force or violence." (People v. Thomas (2007) 146 Cal.App.4th 1278, 1292, citing People v. Pinholster (1992) 1 Cal.4th 865, 961.)
Here, substantial evidence was presented from which a jury reasonably could conclude Allen's touchings of the girls, however slight, were offensive, insolent, unwarranted and unjustified. Specifically, as discussed in detail above, the girls testified that his touchings made them, in different instances, scared, cry, feel uncomfortable; or move backwards. Accordingly, the elements of battery were satisfied. It was not necessary that the touchings be done in actual anger or with actual malice. (CALJIC No. 16.141.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, Acting P. J., McINTYRE, J.